MEMORANDUM DECISION
ON REHEARING
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 05 2017, 6:07 am
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establishing the defense of res judicata, Indiana Supreme Court
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APPELLANT PRO SE ATTORNEYS FOR APPELLEE
George A. Foote Curtis T. Hill
Pendleton, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
George A. Foote, April 5, 2017
Appellant-Petitioner, Court of Appeals Case No.
28A01-1607-PC-1726
v. Appeal from the Greene Circuit
Court
State of Indiana, The Honorable Erik Allen, Judge
Appellee-Respondent Trial Court Cause No. 28C01-0909-
PC-141
Riley, Judge.
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[1] In a memorandum decision, handed down on December 27, 2016, we
concluded that the Appellant-Petitioner, George A. Foote (Foote), had not been
denied ineffective assistance of appellate counsel based on the failure of his
appellate counsel to raise certain direct appeal issues. Foote v. State, No. 28A01-
1607-PC-1726, 2016 WL 7471947, at *6 (Ind. Ct. App. Dec. 27, 2016). Foote’s
appellate counsel had utilized the Davis/Hatton procedure to suspend Foote’s
direct appeal in order to pursue post-conviction relief. Id. at *2. Upon the
denial of Foote’s post-conviction relief petition, his appellate attorney filed an
appeal and raised only issues pertaining to the denial of the post-conviction
relief petition. Id. We determined that even if his appellate counsel had raised
the sentencing issue that Foote claimed should have been argued as a direct
appeal matter, Foote would not have prevailed on the merits; therefore, his
appellate counsel did not render ineffective assistance of counsel by failing to
raise issues on direct appeal. Id. at *6. Nevertheless, we now grant rehearing
for the limited purpose of addressing Foote’s claim that he received ineffective
assistance of appellate counsel because his attorney denied him access to a
direct appeal. 1
[2] It is well established that there are three categories of ineffective assistance of
counsel claims: “(1) denying access to an appeal; (2) failing to raise issues; and
1
The State did not file a response to Foote’s petition for rehearing.
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(3) failing to present issues competently.” Dawson v. State, 810 N.E.2d 1165,
1173 (Ind. Ct. App. 2004) (citing Timberlake v. State, 753 N.E.2d 591, 604 (Ind.
2001)), trans. denied. We noted in our memorandum decision that Foote
primarily relied upon the second category of appellate counsel ineffectiveness:
failing to raise issues. Foote now contends that our court failed to address his
alternative argument that his appellate counsel was ineffective because he
denied Foote access to an appeal by failing to reinstate Foote’s direct appeal.
Although Foote, in his appellate brief, did not explicitly argue that he had been
denied access to an appeal, he did rely upon Dodd v. Knight, 533 F. Supp. 2d
844 (N.D. Ind. 2008).
[3] In Dodd, following the defendant’s conviction for murder, appellate counsel
utilized the Davis/Hatton procedure to stay the direct appeal in order to pursue
an ineffective assistance of counsel claim via a petition for post-conviction
relief. Id. at 846. Following the denial of the defendant’s petition for post-
conviction relief, appellate counsel appealed but “did not raise any direct appeal
issues despite previously telling the court of appeals that there were a number of
trial errors ripe for appeal. Instead, the appeal rested solely on the post-
conviction review issue of ineffective assistance of counsel.” Id. at 847. After
this court affirmed the denial of the defendant’s post-conviction relief petition
and the supreme court denied transfer (and after unsuccessfully attempting to
file successive post-conviction relief petitions), the defendant filed a petition for
a writ of habeas corpus with the federal district court in the Northern District of
Indiana. Id.
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[4] The district court stated that “[w]hen a criminal defendant is effectively denied
any direct appeal because of his counsel’s deficient performance, the petitioner
is entitled to a new appeal without further analysis of prejudice and without a
showing that the appeal has merit.” Id. at 851. While the denial of a direct
appeal is per se ineffectiveness and demands a new appeal, a strategic decision to
raise certain issues on appeal is not presumptively prejudicial. Id.
Because the direct appeal and the post-conviction appeal are
separate, albeit consolidated for efficiency, each retains its own
unique characteristics. And while a defendant does not have a
constitutional right to the effective assistance of counsel on post-
conviction review, he does have a right to a direct appeal of his
criminal conviction, and a constitutional right to the effective
assistance of counsel on that direct appeal. Appellate counsel’s
failure “to show up for appeal—which can occur either if the
lawyer fails to initiate the appeal or if the lawyer fails to
prosecute the appeal,” denies the defendant “of more than a fair
judicial proceeding,” it deprives him “of the appellate proceeding
altogether.”
Id. at 852 (internal citations omitted). The district court found it particularly
troubling that appellate counsel had specifically acknowledged that there were
viable issues to be raised on direct appeal but subsequently failed to raise those
errors in the consolidated appeal. Id. at 853. Ultimately, the court determined
that the case “should be analyzed under the per se standard” such that if the
defendant could “demonstrate that he instructed his counsel to pursue a direct
appeal and counsel failed to do so, [the defendant] is entitled to a new appeal.”
Id.
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[5] The case at bar is distinct from Dodd. Foote offers no argument that he had
directed his appellate counsel to pursue a direct appeal. Moreover, there is no
indication in the record that his appellate counsel believed Foote had a viable
sentencing claim to raise on direct appeal but simply failed to follow through.
In fact, Foote’s appellate counsel testified that post-conviction relief was Foote’s
best chance for relief because he did not see any “just absolutely . . . powerful
direct appeal issues.” (P-CR Tr. p. 79). Accordingly, this is not a case in which
Foote’s appellate counsel failed to prosecute an appeal, automatically entitling
Foote to a new appeal based on per se ineffectiveness. See, e.g., Allen v. State, 959
N.E.2d 343, 345-47 (Ind. Ct. App. 2011) (holding that defendant was entitled to
a new appeal based on a per se denial of ineffective assistance where appellate
counsel was never appointed to prosecute the appeal, resulting in the dismissal
of the appeal), habeas corpus denied. Rather, the record reveals that this is a
situation where Foote’s appellate counsel made a strategic decision to raise
certain issues in the consolidated appeal. Because we have already determined
that Foote suffered no prejudice in light of the fact that he would not have
prevailed on the sentencing issue on direct appeal, he is not entitled to relief on
rehearing. Accordingly, we affirm our earlier decision in all respects. 2
[6] Crone, J. and Altice, J. concur
2
We decline Foote’s request to reconsider our conclusion in the original decision that he waived his claim
that his convictions for Class A felony child molesting are unconstitutional.
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