Landis v. State


Appellant Pro Se             Attorneys for  Amicus Curiae
                       State Public Defender

Dillard Lee Landis           Susan K. Carpenter
                       Public Defender
                       Douglas J. Essex
                       Deputy Public Defender
Indianapolis, IN



Attorneys for Appellee


Jeffrey A. Modisett
Attorney General of Indiana

Liisi Brien
Deputy Attorney General
Indianapolis, IN



      IN THE
      INDIANA SUPREME COURT


DILLARD LEE LANDIS,
      Appellant (Defendant below),

      v.

STATE OF INDIANA,
      Appellee (Plaintiff below).



)
)     Supreme Court No.
)     64S05-0010-PC-570
)
)
)     Court of Appeals No.
)     64A05-9906-PC-267
)
)



      APPEAL FROM THE PORTER SUPERIOR COURT
      The Honorable Nancy H. Vaidik, Judge
      Cause No.  64D04-9508-CM-1300



                           ON PETITION TO TRANSFER




                                June 26, 2001

SULLIVAN, Justice.

       Petitioner  Dillard  Lee  Landis  sought  post-conviction  relief  on
grounds of ineffective assistance of counsel.  This was appropriate; he  did
not waive this claim by failing to  raise  it  in  his  direct  appeal  even
though his direct appeal pre-dated our opinion on this subject in  Woods  v.
State.  However, he is not entitled to relief as we  agree  with  the  post-
conviction court that he did  not  suffer  prejudice  from  any  ineffective
assistance of counsel.


                                 Background


      Petitioner Dillard Lee Landis was convicted of  stalking,  a  Class  B
misdemeanor,[1] on December  11,  1995.   He  filed  a  petition  for  post-
conviction relief on June 17, 1998.  As required by Indiana  Post-Conviction
Rule  1(6),  the  post-conviction  court  issued  findings   of   fact   and
conclusions of law on February 17, 1999, denying the petition.  Included  in
those findings and conclusions were  the  post-conviction  court’s  holdings
denying certain claims of fundamental error.  The Court of Appeals  rejected
these.  See Landis v. State, 726 N.E.2d 801, 805-07 (Ind.  Ct.  App.  2000).
We summarily affirm the Court of Appeals  opinion  on  these  claims.   Ind.
Appellate R. 11(B)(3).[2]  We also summarily affirm  the  Court  of  Appeals
conclusion as to Landis’s claim that the State failed  timely  to  file  its
answer affirmatively raising the defenses of waiver and res  judicata.   See
Landis, 726 N.E.2d at 805.

      The post-conviction court also determined that, by  failing  to  raise
the issue of ineffective assistance of counsel in his direct appeal  of  his
conviction, Landis waived his right to do  so  in  his  petition  for  post-
conviction relief.   The  Court  of  Appeals  affirmed  this  determination,
relying on our opinions in Woods v. State,  701  N.E.2d  1208  (Ind.  1998),
cert. denied, 528 U.S. 861 (1991), and McIntire  v.  State,  717  N.E.2d  96
(Ind. 1999).  See Landis,  726  N.E.2d  at  808.   We  granted  transfer  to
address this issue.  See Landis  v.  State,  741  N.E.2d  1256  (Ind.  2000)
(table).



                                 Discussion



                                      I


      We hold that neither Woods nor McIntire prevented Landis from  seeking
post-conviction relief on grounds of ineffective assistance of counsel.   To
explain our reasoning, we revisit those two decisions.

      Woods created an exception for claims  of  ineffective  assistance  of
counsel to the general rule that if an issue was available on direct  appeal
but not litigated, it is deemed waived and not available for  litigation  in
post-conviction  proceedings.   Woods  held  that  claims   of   ineffective
assistance of counsel could be litigated in post-conviction  proceedings  if
not (but only if not) litigated on direct appeal.  See Woods, 701 N.E.2d  at
1220.

      Prior to Woods, there was debate over whether a claim  of  ineffective
assistance of counsel was or was not waived if not raised on direct  appeal.
 Woods acknowledged this:



      [S]ome of our decisions suggest, without examining the question in any
      detail, that any challenge to the  effectiveness  of  trial  counsel’s
      representation may be raised for  the  first  time  in  postconviction
      proceedings.    Lane   v.   State,   521   N.E.2d    947    (Ind.1988)
      (ineffectiveness due to trial  counsel's  failure  to  call  an  alibi
      witness would have been available  in  postconviction,  but  defendant
      could not raise issue for  first  time  on  appeal  through  guise  of
      ineffective assistance of postconviction counsel).   Others  could  be
      read to imply the contrary.  Resnover v. State, 547  N.E.2d  814,  816
      (Ind.1989) (“Ineffective assistance of counsel as an  issue  is  known
      and available to a party on his direct appeal....”); Metcalf v. State,
      451 N.E.2d 321  (Ind.1983)  (holding  several  assertions  of  alleged
      ineffectiveness to be waived without  distinguishing  between  record-
      based contentions and those requiring evidentiary development).


      ...


            In sum, the availability  of  ineffective  assistance  of  trial
      counsel in postconviction proceedings where it  was  not  asserted  on
      direct appeal is unresolved as a matter of this Court's precedent.

Id. at 1214-15 (quotations in original).

      The case before us raises precisely the question that Woods  answered:
whether a petitioner for post-conviction relief who did not  raise  a  claim
of ineffective assistance of counsel on direct appeal may raise it  for  the
first time  in  post-conviction  proceedings.   While  Woods  answered  that
question in the affirmative, the Court of  Appeals  relied  on  McIntire  to
hold that the Woods principle was not retroactive to  cases  like  this  one
where the direct appeal had been litigated prior to the Woods decision.

      But McIntire addressed an entirely different question.   McIntire  was
a direct appeal, not an appeal from the denial  of  post-conviction  relief.
See McIntire, 717 N.E.2d at 98.  And (most  importantly)  it  was  a  direct
appeal that was filed prior to the Woods decision.  See Id. at  101.   Given
the conflicting precedent that the quotation  from  Woods  set  forth  above
describes, it is not surprising that appellate counsel in  McIntire  elected
to include a claim of  ineffective  assistance  of  counsel  in  the  direct
appeal.  Our McIntire opinion pointed out that Woods had clarified  the  law
and made clear that if such claims were not raised on direct appeal  in  the
future (we used the word “prospectively”), they would  nevertheless  not  be
deemed waived.  See id  at  102.   And  because  Woods  expressed  a  strong
preference for considering such claims in  post-conviction  proceedings,  we
declined to address the ineffective assistance of claim in McIntire at  all.
 See id.

      Reading both Woods and McIntire  together,  and  reading  McIntire  in
context, yield these conclusions: first, there was no clear precedent  prior
to Woods as to whether an  available  claim  of  ineffective  assistance  of
counsel was required to be litigated on direct appeal;  second,  Woods  held
that such claims could be litigated in post-conviction proceedings  if  (but
only if) they were not litigated on direct appeal; third, because  appellate
counsel in McIntire included a claim of ineffective  assistance  of  counsel
in a direct appeal filed before Woods was decided, we  declined  to  address
the claim, thereby preserving it for post-conviction  proceedings.   As  can
be readily seen by these three conclusions, they do not  provide  any  basis
for holding that the failure to litigate a claim of  ineffective  assistance
of counsel in a direct appeal decided before Woods  precludes  a  petitioner
from seeking post-conviction relief on that basis.

      Because the state of the law on this  subject  was  unclear  prior  to
Woods, it was and is our intent that the failure  to  litigate  a  claim  of
ineffective assistance of counsel in a direct appeal  does  not  preclude  a
petitioner from seeking post-conviction relief on that  basis,  irrespective
of whether the direct appeal preceded the Woods decision.   We  do  observe,
however, that if a claim of  ineffective  assistance  of  counsel  has  been
litigated  on  direct  appeal,  it  is  not  available  in   post-conviction
proceedings, again irrespective of whether the direct  appeal  preceded  the
Woods decision.  See Woods, 701 N.E.2d at 1220 (“The defendant  must  decide
the forum for adjudication of the  issue  --  direct  appeal  or  collateral
review.  The specific contentions supporting the claim, however, may not  be
divided between the two proceedings.”)  The law  on  this  point  was  clear
prior to Woods.  See, e.g., Sawyer v. State, 679 N.E.2d  1328  (Ind.  1997);
Morris v. State, 466 N.E.2d 13 (Ind. 1984).


                                     II


      Although the post-conviction court in this case was of the  view  that
Landis’s claim of ineffective assistance of  counsel  was  not  entitled  to
review in post-conviction proceedings, the court  nevertheless  did  address
the claim on the merits.  As noted above,  the  post-conviction  court  made
findings of fact and conclusions  of  law.   When  a  post-conviction  court
makes findings of  fact  and  conclusions  of  law,  the  findings  must  be
supported by the evidence and the conclusions  supported  by  the  findings.
See Bivins v. State, 735 N.E.2d 1116, 1121 (Ind. 2000) reh’g denied.

       Here  the  post-conviction  court  found  that  “the   evidence   was
overwhelming against the defendant and the verdict  of  the  jury  was  both
reliable and fair.”  We  find  the  evidence  supports  the  post-conviction
court’s finding.  Indeed, on direct appeal, the Court of Appeals found  that
“the evidence overwhelmingly demonstrate[s]” guilt.  Landis  v.  State,  No.
64A03-9604-CR-130, slip op. at 4, 671 N.E.2d 212  (Ind.  Ct.  App.  Oct.  4,
1996) (mem.).  On the basis  of  this  finding,  the  post-conviction  court
concluded that Landis was not denied the effective assistance of counsel  to
which he was entitled.  Id.  We hold the finding  supports  the  conclusion.
To establish ineffective assistance of counsel, Landis was required to  show
that  (1)  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  unprofessional  errors,  the
result  of  the  proceeding  would  have  been  different.    A   reasonable
probability is a probability  sufficient  to  undermine  confidence  in  the
outcome.”  Strickland v. Washington, 466 U.S.  668,  694  (1984).   The  two
prongs of Strickland are separate and independent inquiries; hence “[i]f  it
is easier to dispose of an ineffectiveness claim on the ground  of  lack  of
sufficient prejudice ... that course should be followed.”   Strickland,  466
U.S. at 697.  As for the  second  prong,  the  Supreme  Court  has  recently
reaffirmed  the  Strickland  standard  for  prejudice  in   ineffective   of
assistance of counsel claims.  In Williams v. Taylor, the  Court  held  that
in  most  circumstances  deficient  performance  of  counsel  will  only  be
prejudicial  when  “‘there  is  a  reasonable  probability  that,  but   for
counsel's unprofessional errors, the result of  the  proceeding  would  have
been different.  A reasonable probability is  a  probability  sufficient  to
undermine confidence in the outcome.’”  529 U.S. 362,  391  (2000)  (quoting
Strickland, 466 U.S. at 694).   The  post-conviction  court's  finding  that
overwhelming evidence supported the conviction  was  sufficient  to  support
the conclusion of no prejudice in this case.


                                 Conclusion


      We affirm the denial of post-conviction relief.

      SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
      [1]  Ind. Code § 35-45-10-5 (1993).


      [2]  Now Ind. Appellate Rule 58(A)(2).