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 FILED
establishing the defense of res judicata, Sep 19 2012, 9:00 am
collateral estoppel, or the law of the
case. CLERK
of the supreme court,
court of appeals and
tax court
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
KENNETH KELLY GREGORY F. ZOELLER
Carlisle, Indiana Attorney General of Indiana
J.T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KENNETH KELLY, )
)
Appellant-Defendant, )
)
vs. ) No. 30A01-1112-PC-612
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HANCOCK SUPERIOR COURT
The Honorable Terry Snow, Judge
The Honorable Larry Amick, Judge Pro Tem
Cause No. 30D01-0607-PC-127
September 19, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Kenneth Kelly appeals the denial of his petition for post-conviction relief. We
affirm.
Issue
Kelly raises four issues, which we consolidate and restate as whether he was
constructively denied counsel at his competency and sentencing hearings.
Facts
On August 25, 2004, the State charged Kelly with murder. Attorneys James
McNew and Andria Kerney represented Kelly. A plea agreement was filed on September
2, 2004, and a guilty plea hearing was held on November 8, 2004. According to the plea
agreement, in exchange for his guilty plea to the murder charge, the prosecutor would
recommend a sentence of fifty-five years executed. The agreement also called for Kelly
to cooperate in the investigation of the murder and to testify truthfully regarding any
other person’s involvement in the murder.
On December 15, 2004, McNew filed a motion for determination of competency
after Kelly apparently made a suicide pact with a co-defendant. A competency hearing
and a sentencing hearing were scheduled for January 25, 2005. On January 25, 2005,
Kelly’s attorneys filed a motion to withdraw, which referenced Indiana Professional
Conduct Rule 1.6(b)(2). At the beginning of the hearing, the trial court announced that it
would deal with the motion to withdraw at the conclusion of the hearing.
2
During the competency hearing, McNew argued that Kelly was not competent to
assist in his defense. Relying on the reports of Dr. Ned Masbaum and Dr. Don Olive,
however, the trial court found Kelly to be competent.
At the conclusion of the competency hearing, the State moved to continue the
sentencing hearing. The State’s request was based on Kelly’s attorneys’ reference to
Professional Conduct Rule 1.6(b)(2) in the motion to withdraw. The prosecutor argued
that the Rule:
says that a lawyer may reveal information relating to the
representation of a client to the extent the lawyer reasonably
believes necessary to prevent the client from committing a
crime or from committing fraud that is reasonably certain to
resolve [sic] substantial injury to the financial interest or
property of another and in furtherance of which the client has
used or is using the lawyer’s services. Certainly your honor,
uh the State believes that such an allegation is being made,
that there is fraud either attempted to be perpetrated on this
Court or going to be perpetrated on this Court which is how I
read the statement on the Amended Motion to Withdraw – the
State must, in all interests of justice, be allowed time to
investigate such an allegation, to investigate uh – what is
going on at the present time rather than push forward with the
sentencing hearing that could resolved [sic] in a miscarriage
of justice for the victims of this crime and for the citizens of
the County and the State of Indiana . . . .
App. p. 29. When asked to respond, McNew said he understood the trial court’s
procedure regarding ruling on the motion to withdraw and stated, “I stand on my Motion
to Withdraw.” Id. The trial court reiterated that it would deal with the motion to
withdraw immediately after the sentencing hearing. The trial court then asked McNew if
he requested any continuance of the sentencing hearing on behalf of Kelly. McNew
responded:
3
Your honor, I am reluctant to go any further in my
representation of Mr. Kelly – I would like to point out to the
Court that I find a distinction between the Court’s analysis of
what is presented before the Court today – the Competency
Hearing was an issue that arose and was in fact brought to the
Court’s attention by myself – when I did represent and had
every intention of representing Mr. Kelly . . . . Secondly,
however, the Court now wishes to proceed to a sentencing
hearing after I have now filed my Motion to Withdraw my
Appearance for the professional reasons I have outlined. I am
very uncomfortable with the anaclisis [sic] that the Court has
made and now the Court is putting me in a position to either
agree or not object to a continuance made by the State on
behalf of my client who, I am of the frame of mind, that I no
longer represent and I am unable to in my professional mind
to do so adequately on behalf of Mr. Kelly. I am no longer
aware what is in my client’s best interests because as
previously stated, I do not believe Mr. Kelly is aware as to
what is in his best interests.
Id. at 30-31. The trial court stated that it understood and viewed McNew as not taking a
position on the issue of continuing the sentencing hearing other than to reiterate the
request to withdraw. The trial court ultimately denied the State’s request for a
continuance.
After a short recess, the parties reconvened for the sentencing hearing. The State
renewed its motion to continue based on McNew’s statement that he could not represent
Kelly because of his belief that Kelly was incompetent. The prosecutor stated:
we believe that any hearing that would proceed could create
an issue on appeal no matter which way this Court ruled as to
whether or not Mr. Kelly is represented at this hearing –
certainly based upon the state of counsel basically saying he
is not representing Mr. Kelly uh – at the competency hearing
and I would believe based upon that statement the same
would hold true at this hearing, therefore I think we have an
unrepresented claim here – at least in the eyes of the appellate
court . . . I believe the appellate court would say that he is not
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competent at the present time to be counsel for Mr. Kelly
based upon his own beliefs in this statement.
Id. at 33. McNew had no response. The trial court explained that Kelly “is represented
by counsel, remains represented by counsel,” and that he has been found to be competent.
Id. The trial court again denied the State’s motion to continue. The State then requested
the trial court to stay sentencing so that it could pursue an interlocutory appeal and certify
the issues for interlocutory appeal. The trial court denied the State’s request.
The trial court then questioned Kelly about the accuracy of the presentence
investigation report and about the presentence addendum. No witnesses were called on
behalf of Kelly or the State. The trial court read into the record a letter from the victim’s
family that had been included in the presentence addendum. When asked by the trial
court, Kelly and the prosecutor said there was no reason not to accept the plea agreement
and to sentence Kelly pursuant to it. The trial court explained its role in the sentencing
process in light of the plea agreement, specifically that “it can accept or reject his
agreement – it cannot modify it.” Id. at 41. The trial court noted that the aggravators of
murder for hire and lying in wait could have been a basis for the State to pursue either the
death penalty or life without parole. After analyzing the actual aggravators and
mitigators at issue, the trial court accepted the plea agreement and sentenced Kelly to
fifty-five years executed. After Kelly was removed from the courtroom, the trial court
granted the motion to withdraw.
On April 19, 2010, Kelly filed a petition for post-conviction relief, asserting that
he was denied effective assistance of counsel at the competency and sentencing hearings.
5
His petition was summarily denied. Kelly appealed, and we reversed and remanded for
an evidentiary hearing. See Kelly v. State, 952 N.E.2d 297 (Ind. Ct. App. 2011). On
December 13, 2011, the post-conviction court held an evidentiary hearing, at which
McNew testified. On December 14, 2011, the post-conviction denied Kelly’s petition.
The post-conviction court’s findings and conclusions provided in part:
12. Court finds that Mr. McNew’s statements during the
sentencing where [sic], in fact, argument and once rejected by
the Court, had no effect on his ability or desire to represent
the best interest of his client.
13. It is clear by the transcript that the Defendant entered into
a plea agreement, made no attempt to withdraw it, accepted
the benefits of the agreement by limiting the State’s ability to
file additional counts or aggravators and has enjoyed the
fruits of the agreement since 2005.
14. The Petitioner points to comments by the Deputy
Prosecuting Attorney on this case, Mr. Nelson, indicating he
didn’t think that Mr. McNew was representing the Defendant
and that he didn’t think the Court of Appeals would accept
that. However, the Court again notes that that was argument
and the Court declined to accept said argument. Because the
Deputy Prosecutor says it, doesn’t make it so.
*****
18. Mr. McNew testified that the reason he felt
uncomfortable in proceeding on, is because of the
Defendant’s statements to him indicating that he would not
comply with the plea agreement thereby, leaving the
Defendant open to additional and more severe charges and
penalties which would be detrimental to his client’s interest.
However, once the Court declined to let him withdraw, Mr.
McNew and Ms. Kerney proceed as attorney [sic] of record,
representing the best interest of their client.
6
19. The record clearly reflects that Mr. McNew and Ms.
Kerney represented the Petitioner, Kenneth Kelly, in a
professional and competent manner.
20. The record reflects that Mr. McNew and Ms. Kerney
were present during all of the critical stages of the
prosecution, put in numerous hours of preparation, and were
fully adversarial to the State up to and including the
sentencing hearing where they ensured that the rights of the
Defendant were protected.
Wherefore, the Court now finds that the Defendant,
was, in fact, represented by competent counsel, that counsel
was present during all critical stages of the prosecution, and
that said representation was professional and effective and
meets the requirements of the U.S. and Indiana Constitutions.
Motion for Post Conviction relief is denied.
App. pp. 122-24. Kelly now appeals.
Analysis
“The petitioner in a post-conviction proceeding bears the burden of establishing
grounds for relief by a preponderance of the evidence.” Kubsch v. State, 934 N.E.2d
1138, 1144 (Ind. 2010). Because a petitioner appealing the denial of post-conviction
relief is appealing from a negative judgment, to prevail on appeal, the petitioner must
show that the evidence as a whole leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Id. Further, although we do not defer
to a post-conviction court’s legal conclusions, the court’s findings and judgment will be
reversed only upon a showing of clear error—that which leaves us with a definite and
firm conviction that a mistake has been made. Id.
“To establish a post-conviction claim alleging the violation of the Sixth
Amendment right to effective assistance of counsel, a defendant must establish before the
7
post-conviction court the two components set forth in Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984).” Id. at 1147. First, a defendant must show
that counsel’s performance was deficient by establishing that counsel’s representation fell
below an objective standard of reasonableness and that “‘counsel made errors so serious
that counsel was not functioning as ‘counsel’ guaranteed to the defendant by the Sixth
Amendment.’” Id. (quoting Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). A
defendant must also show that the deficient performance prejudiced the defense by
establishing there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. Id. “Further, counsel’s
performance is presumed effective, and a defendant must offer strong and convincing
evidence to overcome this presumption.” Id.
Kelly argues that he was constructively denied counsel at the competency and
sentencing hearings. Kelly’s argument is based on United States v. Cronic, 466 U.S. 648,
104 S. Ct. 2039 (1984).
In Cronic, the Supreme Court recognized that in certain
limited circumstances of extreme magnitude, prejudice to a
criminal defendant is so likely that an inquiry into counsel’s
actual performance is not required. Stated differently, a
presumption of ineffectiveness arises in certain extreme
circumstances without resort to the traditional two-prong
Strickland analysis. The Court in Cronic identified three
circumstances justifying such a presumption: (1) the complete
denial of counsel; (2) situations where counsel entirely fails to
subject the prosecution’s case to meaningful adversarial
testing; and (3) situations where surrounding circumstances
are such that, “although counsel is available to assist the
accused during trial, the likelihood that any lawyer, even a
fully competent one, could provide effective assistance is so
8
small that a presumption of prejudice is appropriate without
inquiry into the actual conduct of the trial.”
Ward v. State, 969 N.E.2d 46, 77 (Ind. 2012) (quoting Cronic, 466 U.S. at 659-60, 104 S.
Ct. at 2047) (citations omitted).
According to Kelly, his attorneys entirely failed to subject the State’s case to
meaningful adversarial testing. Regarding the competency hearing, Kelly claims that,
because McNew and Kerney did not believe they were counsel, they never conducted any
investigation, did not provide any doctor or the trial court any information about Kelly,
and did not attempt to litigate the competency determination in any way. The record does
not support these assertions.
McNew repeatedly testified at the post-conviction relief hearing that he did
represent Kelly until the trial court granted the motion to withdraw at the conclusion of
the sentencing hearing. When Kelly questioned McNew about the statement McNew
made at the conclusion of the competency hearing regarding the State’s request for a
continuance in which McNew indicated he was in the frame of mind that he no longer
represented Kelly, McNew explained that those statements were part of his argument to
the trial court regarding his professional concerns about continuing to represent Kelly
without revealing conversations he had had with Kelly. McNew later explained at the
post-conviction relief hearing that Kelly had informed McNew that he would not testify
against his girlfriend, thereby not fulfilling the terms of the plea agreement. McNew was
concerned that the State could then withdraw the plea agreement and seek the death
9
penalty or life without parole. When taken in context, McNew’s statements do not
establish that he did not actually represent Kelly at the competency hearing.
Likewise, the State’s requests to continue and to stay sentencing pending an
interlocutory appeal and the arguments in support of such do not conclusively establish
that McNew did not represent Kelly at the competency hearing. A complete review of
the record indicates that the prosecutor initially moved for a continuance out of concern
that a fraud was being or was going to be perpetrated on the trial court, not out of concern
that Kelly’s right to counsel was not being fulfilled. Further, the mere fact that the
prosecutor believed that proceeding with the sentencing hearing “could create an issue on
appeal” and that McNew’s statements created “an unrepresented claim” for appeal, does
not establish that Kelly was actually denied the assistance of counsel at the competency
hearing. App. p. 33.
To the contrary, at the competency hearing, McNew explained that he filed the
motion for determination of competency after Kelly entered into a suicide pact with a co-
defendant. The record indicates that two court-appointed doctors evaluated Kelly and
concluded he was competent. McNew argued to the trial court that those reports were
cursory in nature and identified Kelly as being anti-social and narcissistic and that Kelly
was unable to assist McNew in his representation of Kelly. The record of the
competency hearing shows that this was not a situation where counsel entirely failed to
subject the State’s case to meaningful adversarial testing.1
1
In his brief Kelly suggests that his attorneys should have obtained records about Kelly’s mental health
history, and talked to his family, coworkers, and co-defendants about his mental state. Kelly, however,
10
As for the sentencing hearing, Kelly reiterates the statements made by McNew and
the prosecutor between the competency hearing and sentencing hearing relating to the
State’s motion for a continuance. Again, these assertions were arguments by the parties
and do not conclusively establish that counsel entirely failed to subject the prosecution’s
case to meaningful adversarial testing.
Although McNew was not particularly involved in the sentencing hearing, neither
was the prosecutor, who only informed the trial court of the victim’s family’s desire to
make a statement. During the hearing, the trial court questioned Kelly regarding the
accuracy of the presentence investigation report and the presentence addendum, both of
which Kelly had previously reviewed with counsel. Neither party called witnesses, and
Kelly declined to make a statement regarding his sentence. Based on the terms of the
plea agreement, which included a sentencing recommendation of fifty-five years, we
cannot say that the lack of participation by McNew at the sentencing hearing
conclusively establishes that he entirely failed to subject the prosecution’s case to
meaningful adversarial testing.
Instead, a complete review of the record shows that McNew had reviewed the case
and it became apparent to him that aggravators existed that would have allowed the State
to file death penalty or life without parole, that Kelly’s co-defendants had been charged
with murder and conspiracy to commit murder and the State was seeking sentences of life
without parole, that Kelly, the shooter, who had killed a man in exchange for a car,
did not present any such evidence at the post-conviction relief hearing. This unsupported assertion does
not establish that he was constructively denied his right to counsel.
11
secured a plea agreement in which the State recommended a sentence of fifty-five years,
the presumptive sentence for murder, and that Kelly was contemplating reneging on the
plea agreement, which would have allowed the State to pursue additional charges or a
more severe penalty. McNew considered the plea agreement to be “reasonable” and
“charitable.” Tr. p. 14. Under these circumstances, Kelly has not shown that McNew’s
conduct at the sentencing hearing entirely failed to subject the prosecution’s case to
meaningful adversarial testing.2
Finally, Kelly argues that the trial court failed to recognize that he was not
represented by counsel at the hearings and blatantly refused to allow Kelly or the State to
pursue an interlocutory appeal. Kelly asserts that McNew had an affirmative duty to file
an emergency writ of mandamus on the grounds that the trial court was unfaithful to the
law and showed a rational inference of partiality in violation of the Code of Judicial
Conduct. According to Kelly, McNew’s failure to petition for a writ caused Kelly “to
face ‘armed gladiators’, specifically, the State of Indiana without the benefit of counsel
by his side.” Appellant’s Br. p. 7. Kelly claims that this amounted to deficient
performance and caused him prejudice, “whereby he was constructively deprived of any
counsel whatsoever, which satisfies the narrow category of situations where prejudice is
presumed.” Id. at 8. Quite simply, we do not agree with Kelly that the failure to
2
Kelly also suggests that, had he enjoyed the benefit of counsel during the sentencing hearing, he would
have been informed that he could set aside his guilty plea pursuant to Indiana Code Section 35-35-1-4.
The fact that Kelly was not informed of this statutory provision, without more, does not establish that he
was constructively denied counsel.
12
immediately challenge the trial court’s rulings constructively deprived him of the right
counsel under Cronic.3
Under these circumstances, we will not presume that counsel was ineffective at the
competency and sentencing hearings under Cronic. Kelly has not established that the
evidence as a whole leads unerringly and unmistakably to a conclusion opposite that
reached by the post-conviction court. The post-conviction court properly denied Kelly’s
petition.
Conclusion
Kelly has not established that the post-conviction court erroneously denied his
petition for post-conviction relief. We affirm.
Affirmed.
VAIDIK, J., and MATHIAS, J., concur.
3
Although Kelly initially frames this claim as a claim of ineffective assistance of counsel under
Strickland, the substance of the claim appears to be based on Cronic, and we review it as such.
13