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).