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 Jul 30 2014, 9:56 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CARA SCHAEFER WIENEKE GREGORY F. ZOELLER
Wieneke Law Office, LLC Attorney General of Indiana
Plainfield, Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ERIC BARNETT, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1311-PC-989
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Lisa F. Borges, Judge
Cause No. 49G04-0002-PC-24481
July 30, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Eric Barnett appeals the denial of his petition for post-conviction relief.
We affirm.
Issue
The sole issue for our review is whether the post-conviction court erred in denying
Barnett’s petition.
Facts and Procedural History
We summarized the facts as follows in Barnett’s direct appeal:
During January 2000, [fifty-seven-year-old] Herb Valinetz (“Valinetz”),
the owner of Office Pride, a janitorial services franchise, discharged Barnett
from his employment. Barnett and two accomplices devised a plan to rob
Valinetz in one of the office buildings where he cleaned. On January 10, 2000,
Barnett and his accomplices hid in Geist Medical Plaza and overpowered
Valinetz upon his arrival. The men put a bag over Valinetz’s head and tied his
hands and legs together. They took Valinetz’s debit card and beat him until he
disclosed the personal identification number necessary to obtain cash with the
card. The men also took cash, cellular telephones, golf clubs and a boom box
from the offices in the building. They used the debit card to make four cash
withdrawals at automatic teller machines.
After the beating, Valinetz crawled down a hallway to another office
and summoned assistance. Valinetz was taken to a hospital and treated for the
injuries he sustained in the beating, including twenty to twenty-five external
bruises, multiple fractured ribs and multiple internal contusions. He was
released the following day. Valinetz remained at home in bed for two days,
but on the third was readmitted to the hospital where he died.
Barnett v. State, No. 49A04-0107-CR-326 (Ind. Ct. App. Feb. 25, 2002), trans. denied.
The State charged Barnett with murder, felony murder, robbery, confinement, two
counts of burglary, and three counts of theft. At a joint bench trial for Barnett and his co-
defendant, State’s witness forensic pathologist Dr. Michael Clark, who supervised Valinetz’s
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autopsy, testified that Valinetz died as a result of “multiple blunt force injuries.” Trial Tr. p.
227. During cross-examination, Dr. Clark explained that although Valinetz had severe
coronary artery blockage, “if [he] had not been assaulted, he would not have died.” Trial Tr.
p. 233.
Defense witness forensic pathologist Dr. John Heidingsfelder testified that after
reviewing medical records, photographs of the victim, and the autopsy report, it was “very
clear to [him] that the immediate cause of death [was] that [Valinetz] died of a heart attack.”
Trial Tr. p. 410. Dr. Heidingsfelder further testified that the injuries Valinetz sustained were
not life-threatening. However, Dr. Heidingsfelder also testified that Valinetz’s heart attack
was more likely than not caused by the blunt force trauma, and that he agreed with Dr. Clark
that the manner of death was a homicide.
After both parties rested at trial, the trial court asked them if they would prefer to have
oral closing arguments or to submit legal briefs. Counsel for Barnett’s co-defendant
responded that he would like to present argument “as to the conflicting pathologists . . . the
primary issue in this case.” Trial Tr. pp. 552-53. The trial court set oral arguments for the
following morning and offered to give counsel additional time to submit legal briefs.
Following oral arguments, the trial court asked the parties if they would like to submit
legal briefs. Counsel stated that they would. Attorneys for the co-defendants filed a joint
post-trial memorandum wherein they argued that Valinetz’s death was not caused by the
defendants’ acts. They attached to the memorandum a chapter from Spitz and Fisher’s
Medicolegal Investigation of Death, which Barnett describes as “a treatise on determining the
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cause of death.” Appellant’s Br. p. 7. The arguments in the memorandum were based on and
cited to the evidence presented at trial. The State filed a memorandum in support of
conviction on charge of murder wherein it argued that the blunt force trauma the co-
defendants inflicted on Valinetz was the immediate cause of his death. The arguments in its
memorandum were also supported by the evidence presented at trial.
On June 22, 2001, the trial court acquitted Barnett of murder, convicted him of all
other charges, and sentenced him to an aggregate sentence of seventy-nine years
imprisonment. On direct appeal, this Court affirmed Barnett’s felony murder conviction,
vacated his robbery conviction on double jeopardy grounds, and revised his sentences for
burglary and theft, resulting in an aggregate sentence of seventy-three and one-half years. Id.
In October 2012, Barnett filed a petition for post-conviction relief wherein he argued
that his trial counsel was ineffective. The post-conviction court held a hearing on the petition
in December 2012, and denied it in October 2013. Barnett appeals the denial of his petition.
Discussion and Decision
Defendants who have exhausted the direct appeal process may challenge the
correctness of their convictions and sentences by filing a post-conviction petition. Stevens v.
State, 770 N.E.2d 739, 746 (Ind. 2002), cert. denied, 540 U.S. 830 (2003). 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, 170 (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. Id. We consider only the
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probative evidence and reasonable inferences therefrom that support the post-conviction
court’s determination, and we will not reweigh the evidence or judge the credibility of
witnesses. Bigler v. State, 732 N.E.2d 191, 194 (Ind. Ct. App. 2000), trans. denied.
To establish ineffective assistance of counsel, a petitioner must first demonstrate that
counsel’s performance was deficient. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). This
part of the test requires the petitioner to demonstrate that counsel’s representation fell below
an objective standard of reasonableness, and that the counsel’s errors were so serious that
they resulted in a denial of the right to counsel guaranteed under the Sixth Amendment to the
United States Constitution. Id. There is a strong presumption that counsel rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment. Stevens, 770 N.E.2d at 746. This presumption can be rebutted only with strong
and convincing evidence. Elisea v. State, 777 N.E.2d 46, 50 (Ind. Ct. App. 2002).
The petitioner must also show that counsel’s deficient performance resulted in
prejudice to the defense. Smith, 765 N.E.2d at 585. Specifically, the petitioner must show
that but for counsel’s unprofessional errors, there is a reasonable probability that the results
of the proceeding would have been different. Id. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Id. Further, to prevail on a claim of
ineffective assistance of counsel due to the failure to object, the petitioner must show an
objection would have been sustained if made. Overstreet v. State, 877 N.E.2d 144, 155 (Ind.
2007).
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Here, Barnett argues that “[h]ad trial counsel objected to the trial court’s allowance of
additional information after the close of the evidence, the objection would have been
sustained.” Appellant’s Br. p. 6. In support of his claim, he directs us to Owens v. State, 750
N.E.2d 403 (Ind. Ct. App. 2001). There, after Owens and the State rested, the trial court was
still not convinced beyond a reasonable doubt that Owens was innocent. The trial court
therefore questioned witnesses and ordered the parties to conduct additional discovery. Upon
hearing the additional evidence, the trial court convicted Owens of burglary, two counts of
robbery, and two counts of criminal confinement. This court affirmed his convictions on
direct appeal.
Owens subsequently filed a petition for post-conviction relief, which the post-
conviction court denied. On appeal, Owens argued that his trial counsel was ineffective
because she failed to object to the trial court questioning witnesses and ordering the parties to
conduct additional discovery after both parties had rested. Through its questioning, the trial
court allowed the introduction of inadmissible hearsay. In addition, the evidence that was
introduced impeached Owens’ testimony. This Court found that by requiring the parties to
engage in additional discovery and return two weeks later to report their findings, the trial
court overstepped its bounds as a neutral arbiter. Id. at 410. Accordingly, we concluded that
trial counsel was ineffective for failing to object to the trial court’s actions. Id.
However, the facts before us are distinguishable from those in Owens. Here, the trial
court did not intervene in the proceedings or require the parties to engage in additional
discovery. Rather, the trial court simply offered the parties the opportunity to submit post-
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trial briefs. The arguments in the post-trial briefs were based on and supported by the
evidence admitted at trial. There was no additional discovery in this case, and the trial court
did not overstep its bounds as a neutral arbiter. Barnett has failed to show that an objection
would have been sustained if made, and that the evidence leads unerringly and unmistakably
to a decision opposite that reached by the post-conviction court.
Conclusion
The post-conviction court did not err in denying Barnett’s petition.
Affirmed.
KIRSCH, J., and MAY, J., concur.
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