West v. State
Decision Date | 24 February 2011 |
Docket Number | No. 45A03-1003-PC-213.,45A03-1003-PC-213. |
Citation | 938 N.E.2d 305 |
Court | Indiana Appellate Court |
Parties | Reginald D. WEST, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
Reginald D. West, Carlisle, IN, Appellant pro se.
Gregory F. Zoeller, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Petitioner-Appellant Reginald West appeals the denial of his petition for post-conviction relief. We affirm.
West raises the following issues for our review, which we restate as:
The underlying facts were set forth on direct appeal:
West v. State, No. 45A03-0406-CR-248, 820 N.E.2d 188 (Ind.Ct.App. December 22, 2004).
West petitioned for post-conviction relief on December 9, 2005, and the State responded to the petition on January 31, 2006. West petitioned pro se for post-conviction relief on June 17, 2009, which the post-conviction court treated as a reactivation of and an amendment to the original petition. A hearing was held on the petition, which the post-conviction court subsequently denied. West now appeals.
A petitioner who has been denied post-conviction relief faces a "rigorous standard of review" on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind.2001). The post-conviction court's denial of relief will be affirmed unless the petitioner shows that the evidence "leads unerringly and unmistakably to a decision opposite" that reached by the post-conviction court. Rowe v. State, 915 N.E.2d 561, 564 (Ind.Ct.App.2009), trans. denied. A petitioner has the burden of establishing the grounds for relief by a preponderance of the evidence. Indiana Post-Conviction Rule 1(5). A petitioner is therefore in the position of appealing from a negative judgment. Ritchie v. State, 875 N.E.2d 706, 714 (Ind.2007).
This court will not disturb the denial of relief unless the evidence is without conflict and leads to but one conclusion, and the post-conviction court reached the opposite conclusion. Carter v. State, 738 N.E.2d 665, 671 (Ind.2000). Furthermore, this court accepts the post-conviction court's findings of fact unless they are clearly erroneous. Bigler v. State, 732 N.E.2d 191, 194 (Ind.Ct.App.2000), trans. denied. We consider only the probative evidence and reasonable inferences therefrom that support the post-conviction court's determination, and we will not reweigh the evidence or judge witness credibility. Id.
In general, claims of ineffective assistance of counsel are reviewed under a two-part test: (1) a demonstration that counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms, and (2) a showing that the deficient performance resulted in prejudice to the defendant. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.2006) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Prejudice occurs when the defendant demonstrates that there is a reasonable probability that, if not for counsel's unprofessional errors, the result of the proceeding would have been different. Grinstead, 845 N.E.2d at 1031. A reasonable probability occurs when there is a probability sufficient to undermine confidence in the outcome. Id. Failure to satisfy either prong of the two-part test will cause the defendant's claim to fail. Henley v. State, 881 N.E.2d 639, 645 (Ind.2008). If we can easily dispose of an ineffective assistance claim based upon the prejudice prong, we may do so without addressing whether counsel's performance was deficient. Id.
West contends that the post-conviction court erred in determining that his counsel was not ineffective when he failed to object to certain statements made by the deputy prosecutor during closing argument. Specifically, West contends that his trial counsel was ineffective for not objecting when the deputy prosecutor called West's girlfriend, the sole alibi witness, a liar. West argues that the deputy prosecutor's comments misled the jury.
Before addressing West's contentions, we will address the State's contention that the issue has been waived. The State argues that West failed to enter the transcript from the original proceedings into evidence and that the trial court erred in taking judicial notice of the transcript. In support of its contention, the State cites State v. Hicks, 525 N.E.2d 316, 317 (Ind.1988), and related cases, for the proposition that a post-conviction court cannot take judicial notice of the transcript of evidence absent exceptional circumstances, as the transcript must be entered intoevidence in the same manner as other exhibits.
In Hicks, our Supreme Court held that the post-conviction court's decision to take judicial notice of prior proceedings was warranted. In so holding, the Court held that the judge "was thoroughly justified in taking judicial notice of the proceedings which in fact occurred in his court, which by a more extravagant use of judicial time would have led to the same result ... his practical handling of the situation was an economical use of judicial time and saved needless time and expense to both sides of the litigation." Id. at 318.
Here, the transcript of the prior proceeding had not been received from the clerk's office by the date of the post-conviction hearing. The post-conviction court, anticipating West's request to enter the transcript into evidence, a request which was indeed made soon thereafter, accepted the then-unavailable transcript into evidence with the permission of both West and the State. Following the lead of our Supreme Court in Hicks, we recognize that the post-conviction court...
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...support the post-conviction court's determination, and we will not reweigh the evidence or judge witness credibility.West v. State, 938 N.E.2d 305, 309 (Ind. Ct. App. 2010) (quotation marks and some citations omitted), trans. denied (2011). We review ineffective assistance of counsel claims......
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