Winters v. State, 49A02-9712-PC-884

• Decision Date: 09 July 1998
• Docket Number: No. 49A02-9712-PC-884,49A02-9712-PC-884
• Parties: Arnold WINTERS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

Page 1197

698 N.E.2d 1197

Arnold WINTERS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 49A02-9712-PC-884.

Court of Appeals of Indiana.

July 9, 1998.

Transfer Denied Nov. 18, 1998.

Susan K. Carpenter, Public Defender, Janice L. Stevens, Deputy Public Defender, Indianapolis, for Appellant-Petitioner.

Jeffrey A. Modisett, Attorney General, Priscilla J. Fossum, Deputy Attorney General, Indianapolis, for Appellee-Respondent.

OPINION

STATON, Judge.

Arnold Winters appeals the denial of his petition for post-conviction relief. He raises one issue on appeal which we restate as: whether Winters' appellate counsel was ineffective thereby entitling him to post-conviction relief.

We affirm.

Winters was convicted of murder, attempted murder, and robbery on June 10, 1987. Our supreme court affirmed his convictions on direct appeal. Winters v. State, 530 N.E.2d 291 (Ind.1988) ("Winters I "). Winters subsequently filed a petition for post-conviction relief which was granted. The post-conviction court concluded that the trial court committed fundamental error by failing to comply with the provisions of IND.CODE § 34-1-21-6 regarding jury requests for information. ¹

The State appealed the post-conviction court's decision, and we reversed, holding that the trial court committed reversible but not fundamental error. State v. Winters, 678 N.E.2d 405, 410 (Ind.Ct.App.1997) ("Winters II "). We remanded the case for consideration of whether Winters' appellate counsel was ineffective for failing to raise the issue on direct appeal. On remand, the post-conviction court concluded that Winters failed to meet his burden of establishing that appellate counsel's conduct fell below an objective standard of reasonableness, and thus, denied Winters post-conviction relief. Winters appeals.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that: (1) his counsel's performance fell below an objective standard of reasonableness; and (2) defendant was prejudiced by counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In determining whether a defendant has been prejudiced, we ask whether, considering the alleged deficiency, the ultimate result was fundamentally unfair or unreliable. Games v. State, 690 N.E.2d 211, 214 (Ind.1997).

Counsel is presumed competent and the defendant must present strong and convincing evidence to rebut this presumption. Fugate v. State, 608 N.E.2d 1370, 1372 (Ind.1993). Judicial scrutiny of counsel's performance is highly deferential and should not be exercised through the distortions of hindsight. Isolated poor strategy, inexperience, or bad tactics do not necessarily amount to ineffectiveness of counsel. Bellmore v. State, 602 N.E.2d 111, 113 (Ind.1992), reh. denied.

Under the rules of post-conviction relief, the petitioner bears the burden of establishing his grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1, § 5; Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993), reh. denied. To prevail on appeal from the denial of post-conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite to that reached by the post-conviction court. Id.

Winters contends that he presented strong and convincing evidence to the post-conviction court that his appellate counsel's performance fell below an objective standard of reasonableness. We need not decide whether Winters' contention is correct, however, because we conclude that Winters cannot establish that he was prejudiced by his appellate counsel's failure to raise the issue.

Based upon this court's decision in Winters II, both Winters and the post-conviction court assumed that the prejudice prong of the ineffective assistance of counsel claim had been met. Indeed, we stated in Winters II: "[W]e determined that the violation of IC 34-1-21-6 was prejudicial error. Such error also satisfies the second prong of the test for ineffective assistance of counsel; that there was a reasonable probability of counsel's error affecting the outcome of Winters' appeal." 678 N.E.2d at 411. This conclusion, that the second prong of the test for ineffective assistance of counsel had been met, was incorrect in light of our supreme court's recent opinion in Games v. State, 690 N.E.2d 211 (Ind.1997).

In Games, the supreme court clarified that the proper standard for determining whether an attorney's deficient performance has prejudiced a defendant "is not whether there is a reasonable probability that, but for the alleged deficiency of counsel, a different outcome would have occurred. Rather, the standard to be applied ... is whether, considering the alleged deficiency, 'the ultimate result (his convictions) was fundamentally unfair or unreliable.' " Games, 690 N.E.2d at 214 (quoting Games v. State, 684 N.E.2d 466 (Ind.1997)). Under such a test, a post-conviction court must consider, in part, the evidence of a defendant's guilt to determine whether the result of the proceeding is fundamentally unfair or unreliable. Id.

In determining that the prejudice prong was met in Winters II, we concluded that there was a reasonable probability that counsel's error affected the outcome of Winters' appeal. 678 N.E.2d at 411. We should have asked instead whether the error rendered Winters' convictions...