Attorney for Appellant Attorneys for Appellee
Eric K. Koselke Steve Carter
Indianapolis, IN Attorney General of Indiana
Christopher L. Lafuse
Robin Hodapp-Gillman
Deputy Attorneys General
Indianapolis, IN
In the
Indiana Supreme Court
_________________________________
No. 49S02-0306-PC-253
Anthony Graves,
Appellant (Petitioner below),
v.
State of Indiana,
Appellee (Respondent below).
_________________________________
Appeal from the Marion Superior Court, No. CR81-009B
The Honorable Amy J. Barnes, Master Commissioner
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0207-
PC-522
_________________________________
March 16, 2005
SHEPARD, Chief Justice.
A generation ago, Anthony Graves pled guilty to burglary and got a
suspended sentence. He is now litigating his second petition for post-
conviction relief, alleging he received ineffective assistance of counsel
during the proceedings on the first petition.
The Court of Appeals reversed the trial court’s denial of the
petition, holding that had the first post-conviction lawyer performed
certain acts the result “could have been different.” This misreads the
standard applicable to claims about the performance of post-conviction
counsel. Having granted transfer, we affirm the trial court.
Facts and Procedural History
In 1981, Graves pled guilty to burglary, a class B felony, in the
Marion Superior Court. In 1999, Graves filed a petition for post-
conviction relief, claiming that his guilty plea was not entered
intelligently and voluntarily and that there was no factual basis for the
guilty plea. During the post-conviction relief hearing, it became
apparent that there was neither a tape nor a transcript of Graves’ 1981
plea. The trial court denied Graves’ petition, holding that he had failed
to establish that a record of the trial court plea proceedings could not be
reconstructed by the defense attorney, the probation officer, or the deputy
prosecutor. Graves’ attorney, Stephen Lewis, subsequently miscalculated
the due date of the praecipe for appeal, and Graves’ appeal was denied.
In 2001, the Court of Appeals granted Graves permission to file a
successive petition for post-conviction relief. Ind. Post-Conviction Rule
1(12). In filing this new petition, Graves alleged that Lewis provided
ineffective assistance of counsel during the first post-conviction
proceeding. The court held an evidentiary hearing and denied Graves’
petition.
The Court of Appeals reversed, saying:
Lewis failed to make an adequate attempt to establish that the
record could not be reconstructed. If he had been successful in
doing so, the post-conviction court’s ruling on the petition
could have been different. We conclude Graves was not
represented in a procedurally fair setting and thus received
ineffective assistance of counsel.
Graves v. State, 784 N.E.2d 959, 964 (Ind. Ct. App. 2003) vacated.
The Court of Appeals largely resolved the present case by reference to
Zimmerman v. State, 436 N.E.2d 1087, 1088-89 (Ind. 1982), which held that
to obtain relief from a guilty plea when the record of a guilty plea
hearing is lost or destroyed, the petitioner must either reconstruct the
record pursuant to Ind. Appellate Rule 7.2(A)(3)(c) (currently Ind.
Appellate Rule 31(A)), or present evidence showing reconstruction is
impossible. It also relied on Patton v. State, 537 N.E.2d 513, 519-20
(Ind. Ct. App. 1989), which held that a lawyer’s failure to make these
showings constituted inadequate performance and warranted relief.[1]
Zimmerman was decided during a period when this Court routinely set
aside guilty pleas if the trial court judge failed during the plea hearing
to recite to the defendant any of the advisements required by the Code.
See Austin v. State, 468 N.E.2d 1027 (Ind. 1984); German v. State, 428
N.E.2d 234 (Ind. 1981). We overruled this approach toward plea hearings in
White v. State, 497 N.E.2d 893, 905 (Ind. 1986), holding that a petitioner
“needs to plead specific facts from which a finder of fact could conclude
by a preponderance of the evidence that the trial judge’s failure to make a
full inquiry in accordance with § 35-35-1-2(a)[2] rendered his decision
involuntary or unintelligent.”[3]
I. Performance of Post-Conviction Counsel
The American court system features multiple safeguards aimed at
assisting criminal defendants in responding to charges. We provide trial
counsel at public expense for persons too poor to hire their own lawyers.
Gideon v. Wainwright, 372 U.S. 335 (1963); Webb v. Baird, 6 Ind. 13 (1854).
We likewise provide a lawyer to those who have been found guilty at trial
so they can appeal. Douglas v. California, 372 U.S. 353 (1963); State ex
rel. White v. Hilgeman, 218 Ind. 572, 34 N.E.2d 129 (1941). Even after
these proceedings conclude, Indiana has long taken the further step of
providing a procedure to attack convictions. See Sanders v. State, 85 Ind.
318 (1882) (prisoner whose plea is induced by fear of a lynch mob entitled
to withdraw plea and have a trial). Moreover, since at least 1945, Indiana
has provided every prisoner access to counsel at public expense in
connection with such post-conviction claims. Ind. Code Ann. § 33-40-1-2
(West 2004); 1945 Ind. Acts c. 38, § 2.
Unsurprisingly, the availability of these multiple opportunities tends
to produce serial re-litigation (i.e., “My trial lawyer should have done x,
my appellate lawyer did a bad job of attacking my trial lawyer’s handling
of x, my post-conviction lawyer failed in presenting x, etc.”). As Justice
Sullivan noted recently in Corcoran v. State, 820 N.E.2d 655, 663-64 (Ind.
2005), as this litigation progresses through successive stages, the
likelihood of finding an injustice diminishes.
During that same progression, the value of finality begins to outweigh
the benefits of mandating further review at the post-conviction stage,
because “[a]ny other conclusion would suggest that each previous proceeding
serves no valuable purpose and would degrade the entire [criminal]
proceeding to nothing more than a random game of chance.” Corcoran, 820
N.E.2d at 664 (quoting Anthony J. Casey, Maintaining the Integrity of
Death: An Argument for Restricting a Defendant’s Right to Volunteer for
Execution at Certain Stages in Capital Proceedings, 30 Am. J. Crim. L. 75,
103 (2002)).
This Court declared its approach to claims about performance by a post-
conviction lawyer in Baum v. State, 533 N.E.2d 1200 (Ind. 1989). We
observed that neither the Sixth Amendment of the U.S. Constitution nor
article 1, section 13 of the Indiana Constitution guarantee the right to
counsel in post-conviction proceedings, and explicitly declined to apply
the well-known standard for trial and appellate counsel of Strickland v.
Washington, 466 U.S. 668 (1984). Baum, 533 N.E.2d at 1201. The Baum Court
noted that post-conviction pleadings are not regarded as criminal actions
and need not be conducted under the standards followed in them. Id. We
held unanimously that a claim of defective performance “poses no cognizable
grounds for post-conviction relief” and that to recognize such a claim
would sanction avoidance of legitimate defenses and constitute an abuse of
the post-conviction remedy. Id. at 1200-01.
We therefore adopted a standard based on principles inherent in
protecting due course of law -- one that inquires “if counsel in fact
appeared and represented the petitioner in a procedurally fair setting
which resulted in a judgment of the court.” Id. at 1201. As Justice
DeBruler explained later, speaking for a majority of us, it is “not a
ground for post-conviction relief that petitioner’s counsel in a prior post-
conviction proceeding did not provide adequate legal assistance,” but such
a contention could provide a prisoner with a basis for replying to a state
claim of prior adjudication or abuse of process. Hendrix v. State, 557
N.E.2d 1012, 1014 (Ind. 1990) (DeBruler, J., concurring).[4]
The Baum approach bears resemblance to that followed in the federal
system. The habeas provisions of the U.S. Code applicable to federal
prisoners recognize the availability of successive collateral proceedings
but authorize the courts of appeal to permit successive proceedings only in
instances of newly discovered evidence of innocence or new rules of
constitutional law declared retroactive by the U.S. Supreme Court. 28
U.S.C. § 2255 (2000).[5] Thus, the Second Circuit has held that a
petitioner may obtain relief from the adjudication of his habeas petition
only in the “extraordinary circumstances” that “his lawyer abandoned the
case and prevented the client from being heard, either through counsel or
pro se.” Harris v. United States, 367 F.3d 74, 77 (2nd Cir. 2004).[6]
Such has been the grounds for relief under Baum. Waters v. State, 574
N.E.2d 911, 912 (Ind. 1991) (“[c]ounsel, in essence, abandoned his client
and did not present any evidence in support of his client’s claim.”).
Quite obviously, this state and federal aversion to serial re-
litigation focused on performance of counsel stands on a completely
different footing than a claim such as the discovery of previously
unavailable evidence of innocence. 28 U.S.C. § 2255 (2000); Ind. Post-
Conviction Rule 1(1)(a)(4); Bennett v. United States, 119 F.3d 468, 468-70
(7th Cir. 1997) (previously undiscovered evidence of drugs administered
during trial); Williams v. State, 808 N.E.2d 652 (Ind. 2004)(new DNA
tests).
II. Performance of Graves’ Counsel
In the present case, petitioner’s counsel Lewis appeared at the post-
conviction relief hearing, directly examined Graves on his recollection of
the plea hearing, tendered an affidavit of the presiding judge stating he
had no recollection of the plea hearing, and submitted an affidavit stating
the court reporter at the time of the plea hearing was no longer available.
(1st P-CR Tr. at 63-74). Lewis certainly did not abandon Graves. Here,
the evidence presented at the post-conviction relief hearing thus does not
lead “unerringly and unmistakably to a conclusion opposite” that of the
post-conviction court. Williams v. State, 706 N.E.2d 149, 154 (Ind. 1999)
(quoting Weatherford v. State, 619 N.E.2d 915 (Ind. 1993)).
Conclusion
We affirm the trial court’s denial of Graves’ second petition for
post-conviction relief.
Dickson, Sullivan, and Boehm, JJ., concur.
Rucker, J., concurs in result without separate opinion.
-----------------------
[1] More recently, the Court of Appeals announced that when a petitioner
met the Baum standard, infra, it would use Strickland v. Washington, 466
U.S. 668 (1984). Poling v. State, 740 N.E.2d 872, 878-79 (Ind. Ct. App.
2000). Poling is disapproved.
[2] Ind. Code § 35-35-1-2(a) (1986 Supp.) required a trial judge to inform
the defendant of enumerated rights before accepting a guilty plea.
[3] Not long thereafter, we implicitly overruled Zimmerman’s holding that a
plea must be vacated if reconstruction of the record is not possible.
State v. Scales, 593 N.E.2d 181, 184 (Ind. 1992). We held:
[t]he loss of a record or transcript does not by itself require
granting post-conviction relief, or require denying post-
conviction relief. Because the availability of an original
transcript is not the only factor in such determinations, our
rules requiring transcripts to be retained for a time certain
were not intended to create an implicit statute of limitations
[on post-conviction relief petitions].
Id. (internal citations omitted).
[4] Not wishing to inflict the vagaries of ongoing re-litigation on
children, we recently adopted something akin to the Baum standard for
evaluating claims about counsel in cases involving termination of parental
right. It focuses not on whether the lawyer might have done this or that,
but whether “the parents received a fundamentally fair trial whose facts
demonstrate an accurate determination.” Baker v. Marion County Office of
Family and Children, 810 N.E.2d 1035, 1041 (Ind. 2004). Our experience has
been that “with rare exception counsel perform capably and thus ensure
accurate decisions.” Id. at 1039.
[5] As for state prisoners, Congress has explicitly declared: “The
ineffectiveness or incompetence of counsel during Federal or State
collateral proceedings shall not be a ground for relief under section
2254.” 28 U.S.C. § 2254(i) (2000).
[6] In a § 2254 case, the Fourth Circuit has gone further, saying that a
habeas petitioner who seeks to re-open his earlier action in order to add
new claims does not establish cause to excuse his failure to raise those
claims earlier by pointing to the performance of his habeas lawyer. Hunt
v. Nuth, 57 F.3d 1327, 1340 (4th Cir. 1995).