Attorney for Appellant Attorneys for Appellee
Robert S. Rifkin Steve Carter
Maurer Rifkin & Hill, P.C. Attorney General
of Indiana
Carmel, Indiana
Grant H. Carlton
Deputy Attorney General
Indianapolis, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 49S04-0305-PC-175
Mark Thomas,
Appellant (Defendant below),
v.
State of Indiana,
Appellee (Plaintiff below).
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Appeal from the Marion Superior Court, No. 49G03-9605-CF-72101
The Honorable W. T. Robinette, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 49A04-0202-
PC-76
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October 22, 2003
Dickson, Justice.
In this appeal the defendant, Mark Thomas, challenges the post-
conviction court's rejection of his claims of ineffective assistance of
trial and appellate counsel. We affirm the denial of post-conviction
relief.
In 1997, Thomas was convicted of rape, robbery, and criminal
confinement. The Court of Appeals affirmed by memorandum decision. Thomas
v. State, 700 N.E.2d 513 (Ind. Ct. App. 1998) (table). Thomas then sought
post-conviction relief, which was denied. Disagreeing with the post-
conviction court's rejection of Thomas's claim of ineffective assistance of
appellate counsel, Tthe Court of Appeals affirmed in part and reversed in
part, finding that Thomas was entitled to a new trial on the rape charge.
Thomas v. State, 776 N.E.2d 1227, 1233 (Ind. Ct. App. 2002). This Court
granted the State's petition to transfer. In this appeal from the denial
of post-conviction relief, Thomas challenges the post-conviction court's
judgment on the issues of ineffective assistance of trial counsel and
ineffective assistance of appellate counsel.
Ineffective Assistance of Trial Counsel
In his post-conviction proceedings, Thomas claimed that he was denied
the effective assistance of trial counsel due to his lawyer's failure to
present certain documentary evidence. The post-conviction court declined
to address this claim, finding that the issue had been adjudicated on
direct appeal. The same issue had previously been raised on direct appeal,
and the Court of Appeals, finding that Thomas had not provided cogent
argument or included the subject documents in the appellate record, ruled
against him on this claim.
This issue can only be presented in post-conviction proceedings in the
context of a claim of ineffective assistance of appellate counsel. The
Court of Appeals and the post-conviction court were correct: the issue of
ineffective assistance of trial counsel having been raised and adjudicated
on direct appeal, it may not again be directly presented in post-conviction
proceedings. McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002); Woods v.
State, 701 N.E.2d 1208, 1220 (Ind. 1998).
Ineffective Assistance of Appellate Counsel
Thomas also sought post-conviction relief on grounds that he was
denied the effective assistance of appellate counsel. Following
presentation of evidence, the post-conviction court concluded that Thomas
had failed to prove this claim. In this appeal, Thomas challenges that
determination. He contends that his appellate counsel never took the steps
necessary to assure that the appellate record contained certain medical and
laboratory reports, thereby preventing the Court of Appeals from
considering his claim of trial counsel ineffectiveness.
The Sixth Amendment entitles a criminal defendant to the effective
assistance of appellate counsel. Evitts v. Lucey, 469 U.S. 387, 395-396,
105 S.Ct. 830, 836, 83 L.Ed.2d 821, 830 (1985). In evaluating a post-
conviction claim of appellate counsel ineffectiveness, a post-conviction
court applies the standard of Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984) to determine if appellate counsel's
conduct fell below professional norms and resulted in prejudice such that
our confidence in the outcome is undermined. Bieghler v. State, 690 N.E.2d
188, 192-93 (Ind. 1997). A claim of appellate ineffectiveness must
demonstrate a reasonable probability that the outcome of the direct appeal
would have been different. Stevens v. State, 770 N.E.2d 739, 760 (Ind.
2002); Bieghler, 690 N.E.2d at 194. A claim challenging the quality of
appellate counsel's actual presentation must "overcome the strongest
presumption of adequate assistance." Bieghler, 690 N.E.2d at 196. Upon
appeal from the denial of post-conviction relief, an appellate court will
reverse a post-conviction court's decision only where the evidence "is
without conflict and leads to but one conclusion, and the post-conviction
court has reached the opposite conclusion." Miller v. State, 702 N.E.2d
1053, 1058 (Ind. 1998), cert. denied, 528 U.S. 1083, 120 S.Ct. 806, 145
L.Ed.2d 679 (2000) (citations omitted).
Thomas was convicted of the rape, and other offenses, of a sixteen-
year old female. Approximately five hours after the incident, the victim
was examined at Wishard Hospital in Indianapolis where samples were taken
for laboratory examination. On direct appeal, Thomas claimed ineffective
assistance of trial counsel for failing to ask questions that Thomas felt
should have been asked and for failing to introduce an allegedly
exculpatory medical report. In its memorandum decision, the Court of
Appeals observed, "Thomas has not provided us with cogent argument as to
the specific errors he claims that counsel made at trial. Specifically, he
has failed to introduce the contents of the allegedly exculpatory medical
report . . . ." Thomas v. State, Cause No. 49A02-9710-CR-662, slip op. at
6 (Ind. Ct. App. Aug. 13, 1998). The court concluded, "[u]nder the
circumstances, we cannot say counsel's performance was ineffective." Id.
at 7.
Thomas now alleges appellate ineffectiveness because his appellate
counsel "never took the steps necessary to get the medical reports from
Wishard Hospital and the laboratory into the appellate record." Br. of
Appellant at 10-11. He argues that his appellate counsel should have
sought to suspend the appeal and supplement the record by means of a
special evidentiary proceeding pursuant to Davis v. State, 368 N.E.2d 1149
(Ind. 1977). Thomas challenges only his appellate counsel's failure to
pursue a Davis proceeding. He does not, however, challenge his appellate
counsel's decision to raise the issue of trial counsel ineffectiveness on
direct appeal rather than saving it for post-conviction proceedings with
its corollary opportunity there to develop an evidentiary record.
We are very reluctant to consider a claim of appellate ineffectiveness
based on the failure to request a Davis proceeding. Appellate counsel's
use or non-use of such a proceeding does not have substantive significance,
but serves only to raise at an earlier time an issue that otherwise would
be available for later presentation in post-conviction proceedings. It is
difficult to imagine how the failure to seek a Davis proceeding could
result in substantive prejudice. Furthermore, addressing omitted evidence
is normally outside the professional norms of direct appeal counsel.
[E]xpecting appellate lawyers to look outside the record for error is
unreasonable in light of the realities of appellate practice. Direct
appeal counsel should not be forced to become a second trial counsel.
Appellate lawyers may have neither the skills nor the resources nor
the time to investigate extra-record claims, much less to present them
coherently and persuasively to the trial court.
Woods, 701 N.E.2d at 1216.
In the present case, however, the alleged failure of Thomas's trial
counsel to introduce the medical report and lab results was known to his
appellate counsel, who attempted to raise the issue on direct appeal. The
performance of appellate counsel may be found deficient if the counsel's
conduct is "found unquestionably unreasonable considering the information
available in the trial record or otherwise known to appellate counsel."
Ben-Yisrayl v. State, 738 N.E.2d 253, 261 (Ind. 2000) (emphasis added). In
determining whether, and how, to present an issue on direct appeal, counsel
"must consider various factors, including the likelihood of appellate
success and the principles of res judicata and procedural default, which
may foreclose future review in subsequent post-conviction proceedings."
Id. at 261. We need not resolve whether the deficient performance of
appellate counsel was established, however, because we find the prejudice
prong analysis to be determinative.
Thomas's burden on post-conviction was to establish not only that the
performance of his direct appeal lawyer fell below professional norms, but
also to demonstrate a reasonable probability that, but for the deficient
performance, the outcome of the direct appeal would have been different.
The post-conviction evidence does not conclusively establish the prejudice
prong. Thomas acknowledges that the victim testified at trial that she
was raped by Thomas and "in no uncertain terms that Thomas penetrated her."
Br. of Appellant at 8. His post-conviction claim is that trial counsel
failed to present medical reports that "would have permitted a jury to
reasonably conclude that sexual intercourse did not occur." Br. of
Appellant at 5. The medical reports at issue contain a narrative from Dr.
Beata Weiermiller, the victim's treating physician, recounting the details
of the attack as relayed to the doctor by the victim. It reads, in part:
[The assailant] told her to pulled [sic] her pants down and was
threatening her. He essentially had his penis out of his pants, just
out of the zipper, layed [sic] himself on top of the patient and
started fondling her after she took off her underwear. The patient
started screaming. There was possible vaginal penetration because it
"hurt" according to the patient. The alleged assailant, after the
patient started screaming, took himself off her and wiped off his
penis.
Appellant's App. at 42. Thomas characterizes this as a "less than
compelling initial account to Dr. Weiermiller of her alleged rape," Br. of
Appellant at 5, arguing that because the victim mentioned nothing about
penetration or intercourse to her doctor, the report could have been strong
impeachment evidence against the credibility of the victim, who, at trial,
testified that Thomas indeed penetrated her. Appellant's App. at 52-54.
The medical report also contains Dr. Weiermiller's findings following her
physical examination of the victim:
There were no injuries noted, no signs of bruising, no skin lesions. .
. . Extremities; no clubbing, cyanosis or edema. . . . Pelvic
examination showed no external lesions. The hymenal ring was intact.
There was a perforate hymen allowed on one finger. Cervix was
nulliparous without lesions. There were no injuries seen. No
evidence of bleeding. . . . Wet mount performed revealed no sperm,
normal vaginal flora and no organisms.
Appellant's App. at 43. Thomas also calls our attention to laboratory
results which state: "No seminal material found. No blood staining
detected." Id. at 46.
He claims that introduction of the medical and laboratory records
would have "serve[d] to create serious doubt as to the issue of actual
penetration," Br. of Appellant at 9, and might have been used on cross
examination to get the victim to acknowledge "an uncertainty about being
penetrated given the total absence of physical evidence to support such a
claim." Id.
To establish Strickland's prejudice prong in his claim of ineffective
appellate assistance, it was Thomas's burden to demonstrate to the post-
conviction court a reasonable probability that, but for appellate counsel's
unprofessional errors, the result of the proceeding would have been
different. For the result of the direct appeal to have been different, the
Court of Appeals would have had to find that the omission of this evidence
created a reasonable probability that the outcome of the Thomas's trial
would have been different. In this appeal from the denial of his post-
conviction claim, Thomas's burden here is to establish that the evidence is
without conflict and leads to a conclusion opposite that the post-
conviction court's determination that Thomas was not denied effective
assistance of counsel on appeal. Given the direct testimony of the victim
that Thomas sexually assaulted and penetrated her, we cannot conclude that
presentation of the omitted impeachment evidence would necessarily have
required the post-conviction court to find a reasonable probability that
the result of the direct appeal would have been different.
In addition, the fact that trial counsel did not present the medical
reports to the jury may have been a reasonable tactical strategy, since Dr.
Weiermiller's reports could have had the effect of corroborating and
otherwise bolstering much of the victim's testimony. It was Thomas's
burden on post-conviction to establish his claim of ineffective assistance
of counsel, and Thomas did not present post-conviction evidence regarding
his appellate lawyer's actual reasons for not presenting this evidence.
Counsel is afforded considerable discretion in choosing tactics and
strategy, and we will accord those decisions deference. See Strickland,
466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694 (1984). "A strong
presumption arises that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment."
Id. at 690; see also, Timberlake v. State, 753 N.E.2d 591, 603 (Ind.
2001); Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001); Morgan v. State,
755 N.E.2d 1070, 1073 (Ind. 2001).
We find that Thomas has not demonstrated that the evidence is without
conflict and compels a conclusion opposite that of the post-conviction
court.
The post-conviction court found that appellate counsel's performance
did not deprive Thomas of effective assistance of counsel on direct appeal.
The facts in this record do not point unerringly to the opposite
conclusion, the standard required for relief. With respect to issues other
than ineffective assistance of appellate counsel, the decision of the Court
of Appeals is summarily affirmed pursuant to Appellate Rule 58(A)(2).
Conclusion
Transfer having previously been granted, we affirm the denial of post-
conviction relief.
Shepard, C.J., and Sullivan and Rucker, JJ., concur. Boehm, J., dissents
with separate opinion.
BOEHM, Justice. dissenting.
I respectfully dissent. For the reasons given by the Court of
Appeals, I would conclude there was a reasonable probability that the
omitted evidence would have affected the jury’s finding of penetration. As
a result, trial counsel’s performance was inadequate and prejudicial,
setting up a claim of ineffective assistance. Appellate counsel precluded
review of this issue on direct appeal by raising the issue of ineffective
assistance of trial counsel without supplementing the record through a
Davis proceeding or otherwise to establish what the omitted evidence was.
Because I agree with the Court of Appeals that the omitted evidence was
prejudicial in Strickland terms, failure to preserve this issue was
ineffective appellate assistance and prejudicial because the Court of
Appeals, if presented with it, would have found a reasonable probability of
prejudice from for trial counsel’s omission, and ordered a new trial bases
on ineffective assistance of trial counsel.