Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
Sep 20 2012, 9:28 am
court except for the purpose of
establishing the defense of res judicata, CLERK
collateral estoppel, or the law of the case. of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CYNTHIA CARTER GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
ANGELA N. SANCHEZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GEORGE SANDERS, )
)
Appellant-Petitioner, )
)
vs. ) No. 02A04-1112-PC-703
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable John F. Surbeck, Judge
Cause No. 02D04-0908-PC-70
September 20, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Petitioner, George Sanders (Sanders), appeals the post-conviction
court’s denial of his petition for post-conviction relief.
We affirm.
ISSUES
Sanders raises four issues on appeal, which we consolidate and restate as the
following three issues:
(1) Whether Sanders received effective assistance of counsel;
(2) Whether the trial court was obligated to investigate Sanders’ complaints about
his counsel; and
(3) Whether the post-conviction court properly allowed the trial prosecutor to
remain at counsel’s table as an assisting witness for the State.
FACTS AND PROCEDURAL HISTORY
We adopt our supreme court’s statement of facts as set forth in its opinion issued
in Sanders’ direct appeal, Sanders v. State, 840 N.E.2d 319, 320-22 (Ind. 2006):
In May 2003, J.R., a 12-year-old girl, spent the night at the home of her
friend A.S. and A.S.’s father, [Sanders]. J.R., A.S., and Sanders were lying
on a bed in the basement watching television; Sanders lay between the
girls. Sanders began rubbing J.R.’s back underneath her clothes. J.R.
began to fall asleep, but woke up as Sanders rubbed her feet and continued
up her leg with his hand. Sanders continued until he reached J.R.’s vagina,
where he inserted two of his fingers.
J.R. and A.S. eventually left the basement and slept in A.S.’s room. J.R.
did not tell her mother or A.S.’s mother what had happened because she
was scared. But the next day, A.S. went home with J.R. and told J.R.’s
mother. The following day, J.R. spoke with the police about the incident
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and was examined by a nurse. The nurse testified that during an
examination of J.R.’s genitals, she found two abrasions or scratches
indicative of some type of penetrating trauma.
The State charged Sanders with Class A felony child molesting and Class C
felony child molesting. A few months later, Sanders sent the following
letter directly to the trial judge:
Dear Judge [].
My name is [Sanders], I am a common man, and I have never
written to a Judge before.
I pray, you will accept this, I humbly, wish to apologize to the court,
and to [J.R.’s] family, and to God the Father in heaven, for any
action, I or my family has done, to cause any trials or heart aches for
them in any way (Proverbs 14:14) says [,] “you harvest what you
plant.” My stupidity has! I have never had a felony in the 50 years
of my life, a beer or even a cigarette.
I have no criminal record in Canada for 30 years, when I was asked
to move here on a H1 visa. (Proverbs 19:3). “We are ruined by our
own stupidity and that, a good reputation and respect, are worth
more than silver and gold. (Prov. 22:1).
I can honestly say I never had any desire or did I make any attempt
to have sex with the girl. But I did touch someone else’s child.
I just found out, from my attorney, that my 9 year old daughter also
admitted to touching her accidentally and that she had been molested
by her father and her mother’s boy friend.
I feel awlful [sic]. I have to accept this plea, because, I did touch her
and I have 9 children of my own including 3 step children.
I do not wish to cause this family, any more pain or suffering, than
what, they have all ready [sic] gone through. Especially in Court.
I have cried hours, about the hardship I caused them and am truly
sorry! I was told they also, lost a family member, in an accident,
some years ago . . . I have lost my good reputation, and all that we
have owned, my job, all our vehicles, and had to file Bankruptcy.
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(Proverbs 17:10) says: “a sensible person accepts correction, but
you can’t beat sense into a fool.” I asked God the Father to forgive
me as well.
“If we truly love God, our sins will be forgiven, if we show
him respect, and we will keep away from sin.
I promise you, that something like this, will never happen again, as
long as I live.
God is a God of Judgment, but he is also a God of Mercy and a God
of Reconciliation. As I am the only child, I will need to bury my
mother, who is 93 in Canada soon.
I ask for you mercy and consideration in this matter.
Thank you!
[Sanders]
P.S. Please forgive me, if I have done wrong, by writing this letter of
apology.
Thank you!
At trial, the State admitted over Sanders’ objection a version of this letter
that was redacted. In the redacted version of the letter, the following
language was omitted from the fifth paragraph: “and that she had been
molested by her father and her mother’s boy friend.” The jury found
Sanders guilty as charged, and the trial court sentenced him to 30 years for
Class A child molesting.
(Internal references omitted)
Sanders appealed. On appeal, Sanders raised two issues: 1) he challenged the
admission of the redacted version of the letter on alternative grounds that either the letter
should be inadmissible or admitted without redaction and 2) he contested the exclusion of
evidence regarding J.R.’s prior experience of hallucinations. Because we held that the
letter was improperly admitted at trial, we reversed Sanders’ conviction. See Sanders v.
4
State, 823 N.E.2d 313, 318 (Ind. Ct. App. 2005). The State sought transfer and, on
January 12, 2006, our supreme court concluded that the letter was properly admitted in
redacted form, thereby affirming Sanders’ conviction.
On September 24, 2009, Sanders filed a petition for post-conviction relief, which
he later amended. On June 6, 2011, the post-conviction court conducted a hearing on
Sanders’ petition. On November 23, 2011, the post-conviction court entered findings of
fact and conclusions of law denying the petition.
Sanders now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
Under the rules of post-conviction relief, the petitioner must establish the grounds
for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1, § 5;
Strowmatt v. State, 779 N.E.2d 971, 974-75 (Ind. Ct. App. 2002). To succeed on appeal
from the denial of relief, the post-conviction petitioner must show that the evidence is
without conflict and leads unerringly and unmistakably to a conclusion opposite that
reached by the post-conviction court. Id. at 975. The purpose of post-conviction relief is
not to provide a substitute for direct appeal, but to provide a means for raising issues not
known or available to the defendant at the time of the original appeal. Id. If an issue was
available on direct appeal but not litigated, it is waived. Id.
II. Ineffective Assistance of Counsel
Sanders contends that he was denied the effective assistance of both trial and
appellate counsel. The standard by which we review claims of ineffective assistance of
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counsel is well established. In order to prevail on a claim of this nature, a defendant must
satisfy a two-pronged test, showing that: (1) his counsel’s performance fell below an
objective standard of reasonableness based on prevailing professional norms; and (2)
there is a reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been different. Johnson v. State, 832 N.E.2d 985, 996 (Ind. Ct. App. 2005),
trans. denied (citing Strickland v. Washington, 466 U.S. 668, 690, 694, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984), reh’g denied). The two prongs of the Strickland test are separate
and independent inquiries. Johnson, 832 N.E.2d at 996. Thus, “[i]f it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course
should be followed.” Timberlake, v. State, 753 N.E.2d 591, 603 (Ind. 2001), reh’g
denied, cert. denied, 537 U.S. 839 (2002) (quoting Strickland, 466 U.S. at 697).
Counsel is afforded considerable discretion in choosing strategy and tactics and
we will accord those decisions deference. Timberlake, 753 N.E.2d at 603. A strong
presumption arises that counsel rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment. Id. The Strickland Court
recognized that even the finest, most experienced criminal defense attorneys may not
agree on the ideal strategy or the most effective way to represent a client. Id. Isolated
mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily
render representation ineffective. Id. Furthermore, we will not speculate as to what may
or may not have been advantageous trial strategy as counsel should be given deference in
choosing a trial strategy which, at the time and under the circumstances, seems best.
Johnson, 832 N.E.2d at 997.
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A. Trial Counsel
Sanders argues that he received ineffective assistance of trial counsel.
Specifically, he urges us to find that his trial counsel was ineffective for the following:
(1) failing to object to the admission of his letter because its admission violated Indiana
Evidence Rule 410; (2) failing to present evidence from the movie, The Exorcist; (3)
failing to discover an additional witness; and (4) failing to view the redacted videotape
prior to stipulating to its admission at trial. We will discuss each of these contentions in
turn.
1. Admission of Sanders’ Letter
Sanders initially contends that his trial counsel was ineffective by failing to object
to the admission of Sanders’ letter on the basis of Ind. Evid. R. 410, which governs the
admission of statements made in connection with a withdrawn guilty plea. The letter,
written by Sanders to the trial court, was a key piece of evidence in the State’s case as
well as a contested issue in Sanders’ direct appeal. At trial, Sanders’ counsel had
objected based on Ind. Evid. R. 106—the rule of completeness—and alternatively, he
raised the highly prejudicial nature of the letter’s content. In his post-conviction
appellate proceedings, Sanders now asserts that his counsel was ineffective because the
letter constituted a privileged communication under Evid. R. 410 and, characterized as
such, should not have been admitted.
On September 24, 2009, Sanders filed his petition for post-conviction relief, which
he amended on May 28, 2010. In his motion to amend, Sanders asserted, in pertinent
part,
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2. On May 19, 2010, the Indiana Supreme Court decided the case of
Gabino Gonzales v. State of Indiana, 2010 Ind. LEXIS 357. In that case,
the Indiana Supreme Court ruled: “a defendant’s statements made to a
victim or to the court in an effort to gain acceptance of a plea agreement by
the court are statements in connection with a plea agreement and therefore
are not admissible as evidence pursuant to Evidence Rule 410. In this case
the defendant’s letter of apology to a victim was admitted at his trial after a
plea agreement was rejected.”
3. The Gonzalez case is on point with Sanders’ case. Just as in Gonzalez,
Sanders wrote a letter apologizing for his wrongdoing that was later
admitted at trial. Sanders wrote the letter (file-stamped “received” by the
Court on January 28, 2004) and said he “humbly, wish[ed] to apologize to
the court, and to the [] family, and to God the Father in heaven for any
action, [he] or his family [had] done, to cause any trials or heart aches for
them in any way.”
4. The letter references Sanders intention to enter a plea agreement.
5. The Court, [], conducted a guilty plea hearing on May 7, 2004. That
guilty plea resulted in a failed factual basis and was rejected by the Court.
6. Sanders proceeded to trial, and the State used his letter as its Exhibit 5.
(Appellant’s App. pp. 297-98). Sanders sought “to amend his petition to include Sixth
Amendment and Indiana Constitutional arguments regarding problems with the
admission of the letter pursuant to the Gonzalez decision and for all other relief deemed
just and proper in the circumstances.” (Appellant’s App. p. 298). Despite this
generalized statement, at no point did Sanders specify a claim of ineffective assistance of
counsel on a failure to object to the letter’s admission based on Evid. R. 410.
The post-conviction court concluded, in pertinent part, that
11. [Sanders] asserts that [trial counsel] rendered ineffective assistance in
failing to object on the proper basis to the admission of a letter [Sanders]
wrote to [the trial court] more than 3 months before his failed effort to
plead guilty. The proper basis for an objection, according to [Sanders]
would have been Indiana Evidence Rule 410 as later construed in Gonzalez,
8
929 N.E.2d 699. As this is not one of counsel’s claimed errors mentioned
in either the original [p]etition (which does not mention Gonzalez) or the
amended [p]etition (which raises the Gonzalez issue only in free-standing
form), [Sanders] is not entitled to raise it in a post-hearing brief.
(Appellant’s App. p. 412) (internal references omitted). We agree. Because Sanders
failed to raise a specific claim of ineffective assistance of trial counsel with respect to the
admission of the letter, we conclude that the issue is waived. See Ind. Post-Conviction
Rule 1(8).
2. The Exorcist
Next, Sanders asserts that because his trial counsel failed to follow Ind. Evid. R.
412 (b) which requires written notice ten days prior to trial for admission of evidence
under the rape shield rule, the movie the Exorcist was excluded. Sanders alleges that this
failure prevented his trial counsel from asserting a possible alternative explanation for
J.R.’s injuries. Specifically, Sanders clarifies that because J.R. acknowledged in her
deposition to having seen the movie once, she may have injured herself by mimicking a
scene in the film in which a girl masturbates using a crucifix. He maintains that J.R. may
have reenacted the scene on herself by using pencils. Sanders offered the names of
several witnesses supporting his theory to his trial counsel, but after investigation, none
of the witnesses could corroborate Sanders’ version of events. At trial, trial counsel
attempted to admit a tape of the Exorcist. After considering “how [] the tape of the
[E]xorcist [is] relevant to an issue of material fact,” the trial court excluded it as “(1) []
not relevant; two (2), it is blatant character assassination; number three (3), even if it
9
were admissible, there has been no proper hearing as it relates to any psychological issues
that the victim is alleged to have.” (Trial Transcript pp. 23-24).
It is clear that the tape of the Exorcist was not excluded because trial counsel
failed to give the required ten day notice pursuant to Evid. R. 412; rather, it was excluded
based on relevancy grounds. Besides J.R.’s single mention that she may have seen the
Exorcist once, there was no evidence to support Sanders’ alternative theory. Therefore,
we cannot say that counsel was deficient for failing to adhere to the ten day notice
requirement under the rape shield rule.
3. Discovery of Additional Witness
Sanders also contends that his trial counsel was ineffective for failing to discover
that Sanders’ son had sexual relations with J.R. At the post-conviction hearing, Sanders
submitted an affidavit of his son, completed on March 3, 2009, alleging that he had
sexual intercourse with J.R. twice during the night of May 24, 2003.
Initially we note that Sanders’ son did not divulge this relationship until “[t]he day
before Thanksgiving 2008,” more than four years after the trial. (Petitioner’s Exh. M).
During the post-conviction proceedings, trial counsel testified that he had no reason to
believe that family members, other than A.S. who was present during the incident, had
any relevant information because they were not home at the time of the molestation.
Sanders points to J.R.’s statement that she took Sanders’ son’s pillow with her when she
went to watch television in the basement with A.S. and Sanders as support for his
allegation that his trial counsel should have interviewed his son about his involvement
with J.R. However, it is a huge stretch to assume that because J.R. used Sanders’ son’s
10
pillow, there might have been a sexual relationship between the victim and Sanders’ son.
Therefore, we cannot say that counsel’s performance fell below an objective standard of
reasonableness based on prevailing professional norms.
4. Redacted Videotape
Lastly, Sanders claims his trial counsel’s performance was defective because he
stipulated to the admission of a videotape, containing Sanders’ admission of scratching
J.R.’s back, without reviewing it prior to trial to ensure it was properly redacted. He
maintains that “[f]ailure to ensure the integrity of the evidence is a mistake that falls
below the reasonable standard of care for an attorney.” (Appellant’s Br. p. 17).
At trial, the State sought to admit and play a redacted version of the videotape to
the jury. Prior to playing it, the State reviewed the redacted tape and alerted the trial
court that the edited version failed to comply with the trial court’s ruling on a motion in
limine. Specifically, while the trial court had ruled that no references could be made to
J.R.’s statement that she was hearing voices, the redacted videotape had failed to delete
this mention. The State advised the trial court that:
Your Honor, yesterday the State admitted into evidence a videotaped
statement of [Sanders’] interview with Detective Kenneth Clement, and that
was marked and admitted as State’s Exhibit Number 2. It is the redacted
version of the videotape, because there was [sic] some references made in
the videotape which were, pursuant to the Motion in Limine, were out [sic]
ruled and inadmissible by the [c]ourt. In reviewing this tape, the redacted
version, there’s a small portion that did not get redacted appropriately.
That’s one issue. I have discussed that with [Sanders’ trial counsel] and
that’s not really my main concern, because it’s so brief and it’s not
elaborated to or eluded [sic] to in great detail in the tape, so I don’t think
it’s [sic] effect would really be placed on the jury. I don’t think they would
understand the context, so I mean, I’m not really as concerned about that.
My biggest issue, Your Honor, is that this tape is so difficult to understand
11
because, like, it’s a copy that basically, you can hardly hear anything[.] . . .
I’m not sure the jury’s gonna [sic] be able to hear anything, and this is like
an hour and fifteen minutes to an hour and a half long of letting them hear
very little. So my main concern is that, I think this would be more
confusing and a waste of the jury’s time to actually listen to this tape,
because they just can’t understand what the Defendant is saying. I can
barely understand, and I’ve listened to it over and over again, and rewound
and fast forwarded, so that’s my main concern.
(Trial Tr. pp. 318-19). After trial counsel objected to only playing part of the tape, the
State agreed to play it in its entirety but requested trial counsel not to direct the jury’s
attention to or discuss the inadmissible statements in the redacted videotape. Trial
counsel replied “I haven’t seen the redacted part, but I understand the motion, and I have
no intention of doing anything with regard to the comment, whatever it is.” (Trial Tr. pp.
321-22). In addition, the trial court took efforts to enhance the poor audio quality of the
tape by ordering a microphone to be placed by the television speaker to amplify the
sound.
In light of the evidence that the tape was unintelligible, we find that trial counsel’s
stipulation to its admission was error. See Roller v. State, 602 N.E.2d 165, 171 (Ind. Ct.
App. 1992), trans. denied (It was error, albeit ultimately harmless, to admit a tape where
defendant’s portion of the conversation is almost completely blocked by static, with only
a few of his words being distinguishable, even after several listenings). The prejudice
caused by the admission of an unintelligible videotape is that the jury will be forced to
speculate as to the contents of the tape, and will most likely assume that the tape contains
what the State says it does. See Hobson v. State, 471 N.E.2d 281, 286 (Ind. 1984) (“it
was impossible to determine whether the appellant was or was not confessing [on the
12
tape], and we held that the jury would be inclined to believe that the appellant was
confessing, else the State would not have sought the admission of the tape into
evidence.”). Nevertheless, here, Sanders’ conviction has been corroborated by other
evidence. The jury also saw and read Sanders’ letter to the trial court in which he
admitted to touching someone else’s child. Thus, we cannot say with a reasonable
probability that but for trial counsel’s stipulation the result of the proceeding would have
been different. Therefore, trial counsel did not render ineffective assistance of counsel.
B. Appellate Counsel
Next, Sanders contends that his appellate counsel rendered ineffective assistance.
Specifically, he presents a two-fold claim, alleging that appellate counsel’s conduct was
defective when (1) he failed to raise the trial court’s use of an improper aggravator during
sentencing; and (2) he failed to withdraw as appellate counsel.
The standard by which we review claims of ineffective assistance of appellate
counsel is the same standard applicable to claims of trial counsel ineffectiveness. Wright
v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), reh’g denied, trans. denied. In
Bieghler, our supreme court identified three categories of appellate counsel
ineffectiveness claims, including: (1) denial of access to an appeal; (2) waiver of issues;
and (3) failure to present issues well. Bieghler v. State, 690 N.E.2d 188, 193-95, reh’g
denied, cert. denied, 525 U.S. 1021 (1998). In evaluating these claims, we use the
following two part test: (1) whether the unraised issues are significant and obvious from
the face of the record; and (2) whether the unraised issues are clearly stronger than the
raised issues. Id. at 194. Otherwise stated, to prevail on a claim of ineffective assistance
13
of appellate counsel, a defendant must show from the information available in the trial
record or otherwise known to appellate counsel that appellate counsel failed to present a
significant and obvious issue and that this failure cannot be explained by any reasonably
strategy. Ben-Yisrayl v. State, 738 N.E.2d 253, 260-61 (Ind. 2000), reh’g denied, cert.
denied, 534 U.S. 1164 (2002).
1. Aggravator
Sanders contends that his appellate counsel was ineffective for failing to raise on
direct appeal that the trial court had relied on an improper aggravating factor to calculate
his sentence. During the sentencing hearing, the trial court found two aggravators—
Sanders was in a position of trust to J.R. and his criminal history—and two mitigating
factors—the hardship that a lengthy prison term would create and Sanders’ health issues.
Concluding that the mitigators and aggravators balanced, the trial court imposed the
advisory sentence of thirty years. Sanders now asserts that he never was in a position of
trust and thus his sentence was improper.
The position of trust aggravator is frequently cited by sentencing courts where an
adult has committed an offense against a minor and there is at least an inference of the
adult’s authority over the minor. Rodriguez v. State, 868 N.E.2d 551, 555 (Ind. Ct. App.
2007). This aggravator applies in cases where the defendant has a more than casual
relationship with the victim and has abused the trust resulting from that relationship. Id.
Generally, cohabitation arrangements of nearly any character between adults do in fact,
and should, establish a position of trust between the adults and minors living or staying
together. Id.
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In Hamilton v. State, 955 N.E.2d 723 (Ind. 2011), relied upon by Sanders, our
supreme court revised Hamilton’s sentence within the purview of an Appellate 7(B)
sentence review. Hamilton sexually abused his wife’s granddaughter when she stayed
overnight at the couple’s home. Id. at 725. Considering Hamilton’s position of trust, our
supreme court noted that “although he violated a position of trust, it was not quite one
that rose to the level of a stepfather who had close, daily contact with a stepdaughter[.]”
Id. Thus, even though Hamilton was considered to be in a position of trust, the
aggravator did not justify as much of an aggravated sentence as the violation of a closer
relationship would impose.
Here, J.R. visited with Sanders’ daughter and spent the night at his house.
Therefore, as the residing adult, there is at least an inference of authority over J.K. See
Rodriguez, 868 N.E.2d at 555. As such, the trial court’s consideration of the aggravator
was justified and Sanders has failed to show that a challenge to this specific aggravator
would be successful or stronger than the issues raised on direct appeal. Moreover, even if
the challenge would be successful, Sanders has not established that, in light of the
remaining aggravator, his sentence would be less than the advisory sentence already
imposed. Therefore, his appellate counsel was not ineffective.
2. Failure to Withdraw
Sanders also argues that his appellate counsel was ineffective because he failed to
withdraw as counsel after Sanders deemed him to inadequately represent his interests on
appeal. In the instant case, it should be noted that Sanders’ trial counsel continued to
represent Sanders before the appellate court.
15
A criminal defendant’s Sixth Amendment right to effective assistance of counsel
includes the right to conflict-free representation. Shepherd v. State, 924 N.E.2d 1274,
1287 (Ind. Ct. App. 2010). To prevail on a claim of conflict of interest, the defendant
must demonstrate to the post-conviction court that trial counsel had an actual conflict of
interest and that the conflict adversely affected counsel’s performance. Id. Once a
defendant has demonstrated an actual conflict of interest and an adverse effect on his
lawyer’s performance, the prejudice prong of an ineffective assistance claim is presumed.
Id.
Here, no actual conflict of interest existed. Sanders claims that a conflict was
created because:
I wasn’t pleased with his performance at my trial and I did’nt [sic] feel that
he was adequate to represent at my Appeal. I showed disdain for [counsel]
and I didn’t feel like he had my best interest at heart.
(Appellant’s App. p. 168). Sanders’ allegations merely amount to a dissatisfaction with
his counsel’s handling of his case; he fails to establish that his counsel was burdened by
an actual conflict of interest that divided his loyalties. See Johnson v. State, 948 N.E.2d
331, 335 (Ind. 2011). Therefore, we cannot conclude that appellate counsel was
defective for failing to withdraw.
III. Failure by Trial Court to Investigate
Next, Sanders asserts that the trial court erred when it failed to investigate whether
Sanders’ complaints about his appellate counsel’s performance had been addressed.
However, because Sanders did not present this claim to the post-conviction court, the
claim is unavailable for our review. “Issues not raised in the petition for post-conviction
16
relief may not be raised for the first time on post-conviction appeal.” Allen v. State, 749
N.E.2d 1158, 1171 (Ind. 2001). Consequently, we find Sanders’ claim waived.
IV. Assisting Witness
Lastly, Sanders contends that the post-conviction court abused its discretion when
it allowed the trial prosecutor to remain at the counsel table as the State’s representative
and assisting witness. Specifically, Sanders argues that the trial prosecutor was not solely
an assisting witness as interpreted in Ind. Evidence Rule 615, but she became an advocate
when she argued to the post-conviction court that:
Your Honor, the State would request that if [trial counsel is] not the first
witness then there should be some reason in terms of the claim of
ineffective assistance that the attorney would typically be the first witness
and if there’s some reason for deviating from that standard procedure okay,
but . . .
(PCR Tr. p. 11). Sanders maintains that the trial prosecutor’s dual role as both witness
and advocate adversely impacted his rights.
Indiana Evidence Rule 615 provides that counsel for the State may designate an
officer or employee of the State to act as its representative and that representative is
exempt from an order excluding witnesses from the courtroom. The trial court has
discretion to decide whether a witness qualifies as a representative pursuant to Evid. R.
615, but once the court concludes that the witness is qualified, the trial court has no
discretion to exclude the witness. Fourthman v. State, 658 N.E.2d 88, 90 (Ind. Ct. App.
1995), trans. denied.
Here, the State sought to designate the trial prosecutor as its representative during
the post-conviction proceeding. The post-conviction court allowed the trial prosecutor to
17
remain at the counsel’s table. The sole instance of advocacy, as alluded to by Sanders
above, is not supported by the record. Although originally the transcript attributed the
statement to Sanders’ post-conviction counsel, after officially correcting the transcript,
the statement is now credited to have been made by the attorney representing the State in
the post-conviction hearing. After Sanders filed a renewed motion to correct the
transcript, the post-conviction court entered an order affirming the court reporter’s
correction after indicating that it had listened to the designated portion of the audio
record. Therefore, as nothing in the record establishes that the trial prosecutor acted as
anything but an assisting witness, we conclude that the post-conviction court did not
abuse its discretion by allowing the trial prosecutor to remain at counsel’s table.
CONCLUSION
Based on the foregoing, we conclude that (1) Sanders received effective assistance
of counsel; (2) Sanders waived his argument as to whether the trial court was obligated to
investigate Sanders’ complaints about his counsel; and (3) the post-conviction court
properly allowed the trial prosecutor to remain at counsel table as an assisting witness.
Affirmed.
BAILEY, J. and CRONE, J. concur
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