Wilkins v. State
| Decision Date | 25 October 2013 |
| Docket Number | No. 02A05-1303-PC-117,02A05-1303-PC-117 |
| Parties | DANIEL E. WILKINS, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
GREGORY F. ZOELLER
Attorney General of Indiana
BRIAN REITZ
Deputy Attorney General
APPEAL FROM THE ALLEN SUPEIOR COURT
The Honorable Francis C. Gull, Judge
MEMORANDUM DECISION - NOT FOR PUBLICATIONFRIEDLANDER, Judge Daniel E. Wilkins, pro se, appeals the denial of his petition for post-conviction relief (PCR), in which he challenged his convictions for robbery, criminal confinement, and unlawful possession of a firearm by a serious violent felon, all as class B felonies. He presents the following restated issues for review:
1. Did Wilkins receive ineffective assistance of trial and appellate counsel?
2. Did the trial court err in failing to conduct an evidentiary hearing prior to ruling on Wilkins's PCR petition?
We affirm.
The underlying facts are that at approximately 10:20 a.m. on May 31, 2007, Wilkins entered a Fort Wayne restaurant, brandished a weapon, and demanded that the three employees then present tell him where the money was located. Wilkins ordered the three employees into the restaurant's bathroom, patted them down for cellphones, and asked again about the money. Wilkins eventually escaped with approximately $8500 in cash. He was convicted as set out above.
In Wilkins's direct appeal, this court set out the procedural history of the case culminating in those convictions, as follows:
Wilkins v. State, 901 N.E.2d 535, 536-37 (Ind. Ct. App. 2009), trans. denied.
Wilkins presented the following issue upon direct appeal: "Whether the trial court violated his right to a speedy trial when it delayed his jury trial on a finding of court congestion." Id. at 536. This court rejected Wilkins's argument that his speedy trial right had been violated, concluding first that he waived the issue by failing to object when the trial court set a trial date outside the seventy-day period prescribed by Indiana Criminal Rule 4(B). Secondly, we held that, waiver notwithstanding, Wilkins's argument was meritless because he failed to demonstrate that the trial court erred in delaying his trial on the basis of court congestion.
1.
In his amended PCR petition, Wilkins contended he received ineffective assistance of trial and appellate counsel in a number of ways. A petitioner will prevail on a claim of ineffective assistance of counsel only upon a showing that counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the petitioner. Bethea v. State, 983 N.E.2d 1134 (Ind. 2013). To satisfy the first element, the petitioner must demonstrate deficient performance, which is "representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the 'counsel' guaranteed by the Sixth Amendment." Id. at 1138 (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the second element, the petitioner must show prejudice, which is "a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Id. at 1139. There is a "strong presumption" that counsel rendered adequate service. Id. Because a petitioner must prove both elements in order to succeed, the failure to prove either element defeats the claim. See Young v. State, 746 N.E.2d 920 (Ind. 2001) ().
In a post-conviction proceeding, the petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Bethea v. State, 983 N.E.2d 1134. "When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment." Id. at 1138 (quoting Fisher v. State, 810 N.E.2d674, 679 (Ind. 2004)). In order to prevail, the petitioner must demonstrate that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite the post-conviction court's conclusion. Bethea v. State, 983 N.E.2d 1134. Although we do not defer to a post-conviction court's legal conclusions, we will reverse its findings and judgment only upon a showing of clear error, i.e., "that which leaves us with a definite and firm conviction that a mistake has been made." Id. at 1138 (quoting Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000)).
Wilkins's first claim is that trial counsel rendered ineffective assistance in affirmatively causing the trial date to be set outside the seventy-day period prescribed in Ind. Crim. R. 4(B). This claim was fully litigated on direct appeal. Granted, in his direct appeal Wilkins did not couch his speedy-trial argument in terms of ineffective assistance of counsel. Rather, he claimed the trial court erred in setting a trial date outside the seventy-day limit. His claim of ineffective assistance of counsel in this regard is premised upon the fact that his attorney had another client who had also submitted a request for speedy trial, but had submitted it earlier than Wilkins. As it turned out, both trials were set for the same date, but before different judges. Counsel could not go forward with both trials on the same day, so the trial court reset Wilkins's trial for a later date - one that was outside the seventy-day limit. Wilkins's claim of error upon post-conviction, although not entirely clear, seems to be that trial counsel rendered ineffective assistance in failing to withdraw as Wilkins's attorney so that Wilkins could retain another attorney, who could then proceed with the trial on the originally scheduled date. Indeed, Wilkins invokes such terms and phrases as "conflict ofinterest" and "disqualified" in presenting this argument. Brief of Appellant at 15 and 16, respectively. This was neither.
The setting of trials of two separate clients on the same date in front of two separate judges did not create a conflict of interest for Wilkins's attorney. Wilkins provides no authority for the proposition that counsel was required to withdraw his representation from Wilkins in order to enable Wilkins to pursue his a speedy trial right. The bottom line is that counsel's request to reset the trial for a date outside the seventy-day window was appropriate under the circumstances, and certainly did not constitute ineffective assistance of counsel.
Wilkins claims he was denied effective assistance of counsel because counsel sought a jury trial rather than a bench trial. In order to prevail on this claim, as others, Wilkins must show prejudice. See Bethea v. State, 983 N.E.2d 1134. Based upon the strength of the evidence of guilt, which included positive identification by the victim, Wilkins's fingerprints at the scene, and a surveillance video that captured the incident, Wilkins cannot show that a bench trial would have yielded a different result. Wilkinson did not receive ineffective assistance of counsel in this respect.
Wilkins claims he was denied effective assistance of counsel when trial counsel purportedly misadvised him that he faced a maximum of fifty years if he were convicted of all charges against him. In fact, according to Wilkins, he "was only facing a sentence of thirty Years [sic] if he proceeded to trial and lost [.]" Brief of Appellant at 19. Wilkins continues that as a result of this misadvisement, he "never had an accurate prediction of the respective consequences of pleading guilty or going to trial." Id. In point of fact, however,fifty years was the maximum penalty he faced for the charges against him. See Ind. Code Ann. § 35-50-2-5 (...
To continue reading
Request your trial