Walker v. State
| Citation | 970 N.E.2d 799 |
| Decision Date | 19 July 2012 |
| Docket Number | No. 49A02–1112–PC–1173.,49A02–1112–PC–1173. |
| Parties | Antwane WALKER, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Marion Superior Court; The Honorable Robert R. Altice, Jr., Judge; Cause No. 49G02–0812–PC–288159.
Stephen T. Owens, Public Defender of Indiana, Jonathan O. Chenoweth, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant–Petitioner, Antwane Walker (Walker), appeals the post-conviction court's denial of his amended petition for post-conviction relief.
We affirm.
Walker raises two issues on appeal, which we restate as:
(1) Whether Walker's convictions for five Counts of attempted robbery are supported by sufficient evidence; and
(2) Whether appellate counsel provided ineffective assistance by not challenging the sufficiency of the evidence supporting Walker's convictions.
In our memorandum opinion of Walker v. State, No. 49A02–0904–CR–344 (Ind.Ct.App. Dec. 8, 2009), we stated the facts as follows:
During the evening of December 18, 2008, several people were present at Big Engine Entertainment, a recording studio in Indianapolis, while a recording was being made. Five armed men entered the building and robbed some of the occupants at gunpoint. Multiple shots were fired, and Collin Moore suffered a gunshot wound to his abdomen. Several witnesses identified Walker as one of the robbers. He had been observed running backwards, firing a semi-automatic handgun into the building.
On December 19, 2009, the State filed an Information charging Walker with Count I, attempted robbery, a class A felony, Ind.Code § 35–42–5–1; Count II, robbery, a Class B felony, I.C. § 35–42–5–1; Counts III–X, attempted robbery, Class B felonies, I.C. §§ 35–42–5–1, –35–41–5–1; Count XIV, criminal recklessness, a Class C felony, I.C. § 35–42–2–2; and Count XVII, dangerous possession of a firearm, a Class A misdemeanor, I.C. § 35–47–10–5. On March 9, 2009, all five co-defendants, each represented by a different attorney, proceeded to a jury trial together. On March 12, 2009, following the presentation of the State's case-in-chief, the trial court granted a defense motion to dismiss Counts IV, VI, and IX. “The trial court reasoned that the alleged victims, Shontez, Cameron, and Brownlee, were not in proximity to the co-defendants, did not hear any commands from the co-defendants, nor have any specific interactions with the co-defendants that would indicate that the co-defendants intended to rob them.” (Appellant's App. p. 66). At the close of the evidence, the jury found Walker guilty on all the remaining Counts.
On March 27, 2009, a sentencing hearing was held and the trial court sentenced Walker to twenty years imprisonment on Count I, ten years imprisonment on Counts II, III, V, VII, VIII, and X, four years imprisonment on Count XIV, and one year of imprisonment on Count XVII, with all sentences to be served concurrently, resulting in an aggregate sentence of twenty years imprisonment.
Each co-defendant took a separate direct appeal and was represented by a different appellate lawyer. Walker presented two issues on direct appeal: (1) the trial court's denial of his motion for mistrial and (2) the imposition of a supplemental public defender fee. On December 8, 2009, we affirmed Walker's conviction but remanded to the trial court for reconsideration of the supplemental public defender fee. This court reversed the convictions of co-defendant Johnnie Stokes on Counts I, attempted robbery, as a Class A felony, and Counts III, V, VIII, and X, attempted robbery, as Class B felonies, and co-defendants Curtis Stokes and Antonio Walker on Counts III, V, and VIII, attempted robbery, as Class B felonies, as there was insufficient evidence that the co-defendants had intended to rob victims Arnold, Simmons, Winfield, or Shantell.
On December 9, 2010, Walker filed a petition for post-conviction relief, which was amended on June 1, 2011. On July 17, 2011, an evidentiary hearing was held on the amended post-conviction petition. Walker's appellate counsel testified that as part of her preparation for the direct appeal she reviewed the entire record in order to spot potential legal issues, and did not believe that sufficiency of evidence argument regarding the attempted robbery convictions was strong. On November 10, 2011, the post-conviction court denied relief, finding (1) Walker's free-standing claim of insufficient evidence was not available in a post-conviction relief proceeding, and (2) his appellate attorney had not rendered ineffective assistance of appellate counsel because her decision not to raise a sufficiency of the evidence issue was one of reasonable strategy.
Walker now appeals. Additional facts will be provided as necessary.
On appeal from the denial of post-conviction relief, a petitioner stands in the position of one appealing from a negative judgment. Mauricio v. State, 941 N.E.2d 497, 498 (Ind.2011). We do not defer to the post-conviction court's legal conclusions, but we will reverse only on a showing of clear error. Id. A post-conviction petition is a quasi-civil remedy, and, as such, the petitioner bears the burden to prove by the preponderance of the evidence that he or she is entitled to relief. Moody v. State, 749 N.E.2d 65, 67 (Ind.Ct.App.2001), trans. denied. In order to prevail on appeal, the petitioner must show that evidence is without conflict and leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. On appeal from the denial of a petition for post-conviction relief, we neither reweigh the evidence nor judge the credibility of the witness. Id.
Walker first contends that his attempted robbery convictions on Counts I, III, V, VIII, and X were supported by insufficient evidence and must therefore be reversed and vacated. The State responds that the sufficiency issue raised by Walker was available at the time of his direct appeal and cannot now be raised in post-conviction proceedings. Generally, post-conviction proceedings provide defendants with the opportunity to raise issues that either were not available on direct appeal or were not known at the time of the original trial. State v. Hernandez, 910 N.E.2d 213, 216 (Ind.2009). Claims available on direct appeal but not presented are subsequently not available for post-conviction review. Id. Allegations of errors and most free-standing claims not raised on direct appeal are not available and are considered waived for purposes of post-conviction relief proceedings. Williams v. State, 808 N.E.2d 652, 659 (Ind.2004). We agree with the State that in the present case, the sufficiency issue raised by Walker was clearly available at the time of his direct appeal and was in fact raised by Walker's co-defendants on appeal. Failing to present the issue on direct appeal foreclosed Walker from raising the issue in postconviction relief proceedings.
Walker attempts to avoid waiver by relying on the application of the fundamental error doctrine. The fundamental error doctrine is an exception to the waiver rule, but an extremely narrow one. Canaan v. State, 683 N.E.2d 227, 235 (Ind.1997), reh'g denied . It is available only when the record reveals clearly blatant violations of basic and elementary principles of due process and the harm or potential for harm cannot be denied. Id. Following Canaan, Indiana's Supreme Court affirmed the concept that a fundamental error claim in post-conviction proceedings cannot be raised unless the petitioner can show deprivation of the right to effective counsel or issues were demonstrably unavailable at the time of trial or direct appeal. Sanders v. State, 765 N.E.2d 591, 592 (Ind.2002). Specifically, we stated:
The fundamental error exception to the contemporaneous objection rule applies to direct appeals. In post-conviction proceedings, complaints that something went awry at trial are generally cognizable only when they show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal.
Edington v. State, 806 N.E.2d 310, 310 (Ind.2004).
Walker points to a number of cases which he claims support his argument that our supreme court and this court have held that free-standing post-conviction claims of insufficient evidence are nevertheless cognizable. See Koons v. State, 771 N.E.2d 685, 688 (Ind.Ct.App.2002)trans. denied (addressing sufficiency of the evidence claim that was not raised on appeal), and Badelle v. State, 754 N.E.2d 510, 543 (Ind.Ct.App.2001) (). We disagree with Walker's interpretation of the case law indicated in Koons and Badelle. Both cases were decided around the same time frame as Sanders and while the case law might not have been immediately settled at the time of the Sanders decision, once Sanders became precedent, all cases since have been decided as we do today: fundamental error, with respect to the sufficiency of the evidence presented at trial, cannot be raised in post-conviction relief proceedings. Sanders, 765 N.E.2d at 592.
Walker also contends that he received ineffective assistance from his appellate counsel. The effective assistance of counsel is a right that is guaranteed to all criminal defendants by the Sixth Amendment of the United States Constitution and Article I, Section 13 of the Indiana Constitution. Claims of ineffective assistance of counsel are analyzed according to the two-part test established in Strickland v....
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