ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE/CROSS-
APPELLANT
Jeffrey A. Modisett
Attorney General of Indiana Susan K. Carpenter
Public Defender of Indiana
Michael A. Hurst
Deputy Attorney General Steven H. Schutte
Indianapolis, Indiana Deputy Public Defender
Joanna Green
Deputy Public Defender
Kathleen Cleary
Deputy Public Defender
Linda K. Hughes
Deputy Public Defender
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
STATE OF INDIANA, )
Defendant-Appellant, )
)
v. ) 49S00-9808-PD-436
)
ERIC D. HOLMES, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Tanya Walton Pratt, Special Judge
Cause No. 49G05-8911-CF-131401
________________________________________________
On Appeal from Post-Conviction Proceedings
May 19, 2000
DICKSON, Justice
This appeal is from a judgment granting in part and denying in part
the post-conviction relief sought by Eric D. Holmes. He was convicted of
two counts of murder[1] for the intentional killing of Charles Ervin and
Theresa Blosl, one count of attempted murder,[2] one count of robbery,[3]
and one count of conspiracy to commit robbery.[4] The jury could not reach
a unanimous recommendation for or against the death penalty. After a
sentencing hearing, the trial court sentenced the defendant to death for
the intentional murder of Theresa Blosl and imposed sentences for terms of
years on the other counts. On direct appeal, this Court vacated the
defendant's conspiracy conviction and his sentence for class A felony
robbery, ordered that a sentence for class C felony robbery instead be
imposed, and affirmed the imposition of the death sentence and the other
convictions and sentences. Holmes v. State, 671 N.E.2d 841 (Ind. 1996),
reh'g denied, (1997), cert. denied, 522 U.S. 849, 118 S.Ct. 137, 139
L.Ed.2d 85 (1997). In the subsequent post-conviction proceeding, the post-
conviction court partially granted the defendant's petition for post-
conviction relief, vacating the death sentence for prosecutorial misconduct
and ordering a remand to the trial court for a new penalty phase trial, but
otherwise denied his petition. The State appeals from the post-conviction
court's partial grant of post-conviction relief, and the defendant cross-
appeals from the post-conviction court's partial denial of post-conviction
relief. Finding error on an issue of law, we reverse the partial grant of
post-conviction relief and hold that the defendant's petition for post-
conviction relief should be denied.
Preliminary Considerations
Post-conviction proceedings do not afford criminal defendants the
opportunity for a "super-appeal." Bailey v. State, 472 N.E.2d 1260, 1263
(Ind. 1985); Langley v. State, 256 Ind. 199, 210, 267 N.E.2d 538, 544
(1971). Rather, post-conviction proceedings provide defendants the
opportunity to raise issues that were not known at the time of the original
trial or that were not available on direct appeal. Lowery v. State, 640
N.E.2d 1031, 1036 (Ind. 1994) ("Post-conviction actions are special, quasi-
civil remedies whereby a party can present an error which, for various
reasons, was not available or known at the time of the original trial or
appeal."), cert. denied, 516 U.S. 992, 116 S.Ct. 525, 133 L.Ed.2d 432
(1995). Thus, these proceedings do not substitute for direct appeals but
provide a narrow remedy for subsequent collateral challenges to
convictions. Weatherford v. State, 619 N.E.2d 915, 916-17 (Ind. 1993).
The petitioner for post-conviction relief has the burden of establishing
his grounds for relief by a preponderance of the evidence. Ind. Post-
Conviction Rule 1(5).
As a general rule, when this Court decides an issue on direct appeal,
the doctrine of res judicata applies, thereby precluding its review in post-
conviction proceedings. Lowery, 640 N.E.2d at 1037. The doctrine of res
judicata prevents the repetitious litigation of that which is essentially
the same dispute. Sweeney v. State, 704 N.E.2d 86, 94 (Ind. 1998); Wagle
v. Henry, 679 N.E.2d 1002, 1005 (Ind. Ct. App. 1997); Scott v. Scott, 668
N.E.2d 691, 699 (Ind. Ct. App. 1996). Thus, a petitioner for post-
conviction relief cannot escape the effect of claim preclusion merely by
using different language to phrase an issue and define an alleged error.
Maxey v. State, 596 N.E.2d 908, 911 (Ind. Ct. App. 1992). Also, issues
that were available, but not presented, on direct appeal are forfeited on
post-conviction review. Spranger v. State, 650 N.E.2d 1117, 1121 (Ind.
1995); Lowery, 640 N.E.2d at 1036-37. But cf. Woods v. State, 701 N.E.2d
1208 (Ind. 1998) (regarding claims of ineffective assistance of trial
counsel).
Indiana Post-Conviction Rule 1(7) authorizes either the defendant-
petitioner or the State to take an appeal. The State on appeal claims that
the post-conviction court erred in concluding that the defendant
established one of his claims sufficiently to be entitled to relief, and,
thus, the judgment from which the State appeals is not a negative judgment.
When an appeal after a non-jury trial does not challenge a negative
judgment, the applicable standard is simply that prescribed by Indiana
Trial Rule 52(A):
On appeal of claims tried by the court without a jury or with an
advisory jury, at law or in equity, the court on appeal shall not set
aside the findings or judgment unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court to judge
the credibility of the witnesses.
In reviewing a judgment granting post-conviction relief, our standard of
review is governed by Indiana Trial Rule 52(A): "'We reverse only upon a
showing of 'clear error'—that which leaves us with a definite and firm
conviction that mistake has been made.'" State v. Van Cleave, 674 N.E.2d
1293, 1295 (Ind. 1996) (quoting Spranger, 650 N.E.2d at 1119), reh'g
granted in part, 681 N.E.2d 181 (Ind. 1997), cert. denied, --- U.S. ---,
118 S.Ct. 1060, 140 L.Ed.2d 121 (1998). Because this "clearly erroneous"
standard is a review for sufficiency of evidence, we neither reweigh the
evidence nor determine the credibility of witnesses but consider only the
evidence that supports the judgment and the reasonable inferences to be
drawn from that evidence. Estate of Reasor v. Putnam County, 635 N.E.2d
153, 158 (Ind. 1994); Chidester v. City of Hobart, 631 N.E.2d 908, 910
(Ind. 1994); Indianapolis Convention & Visitors Ass'n., Inc. v.
Indianapolis Newspapers, Inc., 577 N.E.2d 208, 211 (Ind. 1991). When a
"clearly erroneous" judgment results from application of the wrong legal
standard to properly found facts, we do not defer to the trial court. Van
Cleave, 674 N.E.2d at 1296. Also, we are not bound by the trial court's
characterization of its results as "findings of fact" or "conclusions of
law"; instead, we will look past these labels to the substance of the
judgment and review a legal conclusion as such even if the judgment wrongly
classifies it as a finding of fact. Id. (citing Indiana State Bd. of
Public Welfare v. Tioga Pines Living Ctr., Inc., 575 N.E.2d 303, 306 & n.1
(Ind. Ct. App. 1991)).
The defendant, on the other hand, to the extent that he is appealing
from a denial of relief, is appealing from a negative judgment. The
standard of review in appeals from post-conviction negative judgments is
well established: the defendant must establish that the evidence, as a
whole, unmistakably and unerringly points to a conclusion contrary to the
post-conviction court's decision. Spranger, 650 N.E.2d at 1119. The
reviewing court accepts the trial court's findings of fact unless "clearly
erroneous," T.R. 52(A), but does not defer to the trial court's conclusions
of law, Van Cleave, 674 N.E.2d at 1295-96. The reviewing court examines
only the probative evidence and reasonable inferences that support the post-
conviction court's determination and does not reweigh the evidence or judge
the credibility of the witnesses. Butler v. State, 658 N.E.2d 72, 75 (Ind.
1995); Lowery, 640 N.E.2d at 1037.
In summarizing the difference between these two standards of review,
we have indicated that these standards direct the inquiry of appellate
tribunals into trial court decisions: "In one, the inquiry is essentially
whether there is any way the trial court could have reached its decision.
In the other, it is whether there is no way the court could have reached
its decision." Spranger, 650 N.E.2d at 1120.
A. The State's Appeal
The State challenges the post-conviction court's partial grant of the
defendant's petition for post-conviction relief. The State specifically
argues that the court committed clear error when it concluded that the
prosecutor engaged in a pattern of misconduct that placed the defendant in
grave peril and that the defendant's appellate counsel was ineffective for
failing to raise a claim regarding the pattern of misconduct. The State
grounds its argument primarily on two bases: (1) that the defendant was
barred by res judicata from raising a claim of prosecutorial misconduct;
and (2) that the defendant was not deprived of the effective assistance of
appellate counsel.
The post-conviction court did not apply the doctrine of res judicata.
It stated: "This is not the same claim that was made on direct appeal and,
therefore, consideration of this claim is not barred by prior
adjudication." P.C.R. Record at 1000. The post-conviction court believed
that our opinion on direct appeal merely reviewed the alleged acts of
misconduct in isolation and that we failed to "set forth an analysis of the
totality of the circumstances." P.C.R. Record at 1000. Proceeding to
address the claim presented by the defendant, the post-conviction court
concluded that a pattern of prosecutorial misconduct existed that
culminated in grave peril to the defendant during the penalty phase of the
trial.
Arguing in support of the post-conviction court's conclusion on this
issue, the defendant asserts that our review on direct appeal focused on
the penalty phase closing argument and argues that the prosecutorial
misconduct, which he contends occurred throughout the entire prosecution of
the case, constituted a pattern of misconduct and represented a deliberate
attempt improperly to prejudice him. The defendant argues that his
appellate counsel did not present to this Court on direct appeal the
specific claim that the egregious pattern of prosecutorial misconduct
constituted a deliberate attempt to prejudice the defendant.
Upon inspection of the proceedings on direct appeal, we note that the
first claim the defendant presented in his appellant's brief was his claim
that the trial court erred in denying the defendant's motion to dismiss the
death penalty as a result of "intentional, blatant and prejudicial
prosecutorial misconduct." P.C.R. Record at 2694. On direct appeal, the
defendant challenged the prosecutor's conduct throughout the trial, and his
brief focused upon the prosecutor's conduct during the penalty phase. The
defendant specifically argued that "[t]he prosecutor committed numerous
acts of misconduct throughout the penalty phase" and that this "misconduct
placed [the defendant] in such peril that the judge was required to dismiss
the State's request for the death penalty." P.C.R. Record at 2694.
Quoting the analysis that this Court has applied to claims of prosecutorial
misconduct in Maldonado v. State, 265 Ind. 492, 355 N.E.2d 843, 848 (1976),
the defendant's direct appeal brief continued:
1. The Court first determines that the prosecutor in fact engaged in
misconduct. This determination is made by reference to the case law
and the disciplinary rules of the Code of Professional Responsibility
as adopted in this State. [citation]
2. The Court then considers whether the misconduct, under all
circumstances, "placed [the defendant] in a position of grave peril to
which he should not have been subjected." [citation] The "grave
peril" standard does not require the Court to find that the misconduct
determined the outcome of the trial. [citation]
3. Whether the misconduct results in subjecting the defendant to
"grave peril" is determined by the probable persuasive effect of the
misconduct on the jury's decision, not by the degree of impropriety of
the conduct. [citation]
4. Even if an isolated instance of misconduct does not establish
grave peril, if repeated instances evidence a deliberate attempt to
improperly prejudice the defendant, a reversal may still result.
[citation]
P.C.R. Record at 2694-95 (emphasis added). The defendant also argued in
his brief on direct appeal:
Clearly, [the defendant] was placed in grave peril by the
prosecutor's many acts of misconduct. . . . Any one of these acts of
misconduct was sufficient to place [the defendant] in grave peril.
The acts of the prosecutor were blatant, intentional and manifestly
improper. Certainly these numerous acts of misconduct individually
and in concert required that the judge dismiss the death penalty. . .
.
P.C.R. Record at 2702 (emphasis added). The defendant summarized his
argument on this claim as follows:
The prosecutor committed numerous acts of misconduct including
telling the jury that they were not permitted to hear about the
victims and showing them inadmissible photographs, telling the jury
they should not consider the [defendant's] mitigation evidence and
disparaging the [defendant's] defense counsel and witnesses. Although
the [defendant] submits that the grave peril standard for
prosecutorial misconduct should not be applied in a capital sentencing
procedure, the misconduct was such that the [defendant] was placed in
grave peril by the prosecutor's many acts of misconduct.
P.C.R. Record at 2688. The defendant's second claim on direct appeal was
that the prosecutor presented perjured testimony or failed to provide
requested discovery. The defendant's third claim was that the prosecutor
engaged in intentional misconduct by improperly placing excluded victim
impact evidence before the jury.
In our opinion on direct appeal, Justice DeBruler, writing for a
unanimous court,[5] carefully considered the defendant's claim that the
prosecutor engaged in numerous acts of misconduct. See Holmes, 671 N.E.2d
at 846-49. Our opinion analyzed the conduct of the prosecutor during the
jury summation at the penalty phase, the responses of defense counsel, the
motions filed by defense counsel, the rulings of and admonishments by the
trial court, and the overall character of the jury summation. Id. at 846-
47. This Court determined that the prosecutor engaged in misconduct in
three respects: "(1) disrespect shown the court and its rulings favoring
the defense, (2) personal attack upon the integrity of opposing counsel,
and (3) attempts to persuade the jury with evidence which had been ruled
inadmissible by the trial court, and the mention of which had been
expressly forbidden by court order." Id. at 847. The Court determined,
however, that "the misconduct did not place [the defendant] and his right
to fairness in the jury recommendation process in grave peril." Id. The
Court also concluded:
The probable persuasive effect of the misconduct upon the jury
deliberations upon its penalty recommendation, in favor of life or in
favor of death, under all the circumstances, was minimal. The
misconduct did not result in grave peril and the motion for mistrial
and the motion to dismiss were properly overruled.
Id. The Court also rejected the defendant's claims regarding the State's
alleged use of perjured or undisclosed evidence and regarding the placing
of victim impact evidence before the jury. Id. at 848-49.
We find that this Court on direct appeal thoroughly considered and
decided the defendant's claim of prosecutorial misconduct. The defendant's
claim in his post-conviction petition, although recharacterizing some of
the issues, was essentially the same dispute as raised on direct appeal.
The doctrine of res judicata exists to bring finality to claims that have
been considered and decided and to prevent unnecessary protraction of
judicial administration. We hold that the doctrine applies here and that
the defendant should not have been permitted to relitigate this claim. We
hold that the post-conviction court erred as a matter of law in failing to
apply res judicata to bar this claim.[6]
B. The Defendant's Appeal
On cross-appeal, the defendant seeks our review of the following
claims: (1) his sentence is unfair and unreliable because of
insufficiently developed and unpresented information; (2) the death
sentence is not appropriate because of unpresented evidence regarding the
defendant's accomplice; (3) the death sentence is unreliable because of
serious inaccuracies in the sentencing order; and (4) his trial and
resulting sentence are illegal because there were no valid charges against
him. We observe that the role of this Court is not to conduct a de novo
review and adjudicate the merits of these claims but rather to review the
judgment of the post-conviction court. We further note that the first
three of the above enumerated claims do not constitute independent claims
cognizable in post-conviction proceedings. Claims that a sentence is
unfair, unreliable, or inappropriate are not, in and of themselves, proper
for post-conviction review, but may be presented as argument to support
contentions that a defendant was deprived of effective assistance of
counsel. We will consider them in this context and now restate them as the
following claims of ineffective assistance of trial counsel: (1) because
trial counsel insufficiently developed and presented information, the
defendant's sentence is unfair and unreliable; (2) because trial counsel
failed to present evidence regarding the defendant's accomplice, the death
sentence is not appropriate; and (3) the sentencing order contains
inaccuracies that trial counsel could have prevented or corrected.
1. Effective Assistance of Counsel
A defendant claiming a violation of the right to effective assistance
of counsel must establish the two components set forth in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Williams
v. Taylor, --- U.S. ---, ---, 120 S.Ct. 1479, 1511-12, --- L.Ed.2d ---, ---
(2000). First, the defendant must show that counsel's performance was
deficient. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at
693. This requires showing that counsel's representation fell below an
objective standard of reasonableness, id. at 688, 104 S.Ct. at 2064, 80
L.Ed.2d at 693, and that counsel made errors so serious that counsel was
not functioning as "counsel" guaranteed the defendant by the Sixth
Amendment, id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Second, the
defendant must show that the deficient performance prejudiced the defense.
Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. This requires showing
that counsel's errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable. Id. To establish prejudice, a
defendant must show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would be
different. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome. Id.
Counsel is afforded considerable discretion in choosing strategy and
tactics, and we will accord that decision deference. Id. at 689, 104 S.Ct.
at 2065, 80 L.Ed.2d at 694-95. A strong presumption arises that counsel
rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment. Id. at 690, 104 S.Ct. at
2066, 80 L.Ed.2d at 695. The Strickland Court recognized that even the
finest, most experienced criminal defense attorneys may not agree on the
ideal strategy or the most effective way to represent a client. Id. at
689, 104 S.Ct. at 2065, 80 L.Ed.2d at 695. Furthermore, isolated mistakes,
poor strategy, inexperience, and instances of bad judgment do not
necessarily render representation ineffective. Bieghler v. State, 690
N.E.2d 188, 199 (Ind. 1997); Davis v. State, 598 N.E.2d 1041, 1051 (Ind.
1992); Ingram v. State, 508 N.E.2d 805, 808 (Ind. 1987). However, in order
to make a reasonable tactical decision, counsel must have adequately
investigated the client's case because "strategic choices made after less
than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation." Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066, 80
L.Ed.2d at 695.
The State argues that the defendant's claims of ineffective assistance
are barred for failing to raise them on direct appeal. However, this Court
has recently clarified the law regarding claims of ineffective assistance
of counsel, establishing that a defendant may raise a claim of ineffective
assistance of trial counsel for the first time in a post-conviction
proceeding. See Woods, 701 N.E.2d 1208. In Woods, we stated that "a Sixth
Amendment claim of ineffective assistance of trial counsel, if not raised
on direct appeal, may be presented in post-conviction proceedings." Id. at
1220. The defendant did not raise a claim of ineffective assistance of
counsel on direct appeal.
a. Insufficiently Developed Information
The first allegation of ineffective assistance of counsel is that the
defendant's trial counsel failed to sufficiently develop and present
evidence of his mental illness. He asserted on post-conviction that his
trial counsel failed to present evidence that he suffered from impairments
that precluded him from planning and carrying out crimes like those for
which he was convicted. On post-conviction, the defendant presented the
testimony of a licensed psychologist who opined that the defendant was
neither psychotic nor retarded; that he suffered from a variety of neuro-
cognitive disorders and specifically from a verbal learning disability, a
non-verbal visual learning disability, and Attention Deficit Hyperactivity
Disorder (ADHD); that he was forlorn and sad, but not a person with active
aggression; that he suffered from an extreme mental or emotional
disturbance at the time of the offense; and that he did not possess the
cognitive apparatus to understand what was occurring and how to interpret
it.
The post-conviction court found that evidence of the defendant's
mental health was presented to the trial court by several mental health
experts who indicated that the defendant was incapable of assessing a
situation and acting according to a plan and that this testimony was
similar to that presented on post-conviction, providing opinions that the
defendant suffered from learning disabilities and mental impairments that
precluded him from planning and carrying out the crimes. The substance of
the defendant's claim was presented and available for consideration at
trial. The post-conviction court determined that counsel did develop and
present evidence regarding the defendant's mental ability to plan and carry
out this crime. The post-conviction court found that trial counsel's
performance was not deficient.[7]
b. Unpresented Evidence
The second allegation of ineffective assistance of counsel is that the
defendant's trial counsel failed to present evidence regarding his
accomplice.[8] In his petition for post-conviction relief, the defendant
argued that a death sentence was inappropriate because his accomplice was
more culpable, but received a sentence less than the death sentence. The
defendant contended that his trial counsel provided ineffective assistance
in failing to present evidence of his accomplice's violent, aggressive
nature and criminal history.
In considering the defendant's claim, the post-conviction court found
that the accomplice had a violent nature, that the accomplice had a more
extensive criminal history than the defendant, and that these facts were
available and should have been known by counsel but were not presented at
trial. However, the post-conviction court concluded that the accomplice's
prior misconduct was not relevant to the circumstances of the crime and the
character of this defendant. It also concluded that trial counsel
presented essentially all of the same background evidence as was presented
on post-conviction review and that counsel's assistance cannot be faulted
as objectively unreasonable for failing to add more of the same. The court
found that counsel's performance was not deficient.
c. Sentencing Order Inaccuracies
The defendant contends that the post-conviction court erred in denying
his claim that the death sentence is unreliable because the sentencing
order contains inaccuracies that trial counsel could have prevented or
corrected.
The post-conviction court determined that the defendant's claim was
barred by res judicata but nevertheless concluded that the trial evidence
adequately supported the sentencing court's conclusions regarding the
defendant's motive and opportunity to commit the crimes and his
participation in the crimes. To the extent that the defendant's post-
conviction claim challenges the content and sufficiency of the trial
court's sentencing order, we agree that res judicata is a bar. Our opinion
on direct appeal extensively discussed the trial court's sentencing
evaluation and order. Among the various aspects addressed were the trial
court's finding and weighing of aggravating and mitigating circumstances,
its consideration of the defendant's intellectual functioning as a
mitigator, its consideration of the sentence received by the accomplice,
and the structure of the sentencing statement itself. Holmes, 671 N.E.2d
at 849-53.
Considering the defendant's claim that trial counsel provided
ineffective assistance for failing to present a more favorable picture of
the defendant's mental capacity, character, and behavior by developing and
presenting additional evidence regarding the defendant's family history,
educational background, and mental health and abilities, the post-
conviction court found that defendant's trial counsel developed and
presented evidence regarding the defendant's mental health and his
inability to plan and carry out the crimes, including the testimony of
several mental health professionals, family members, friends, teachers, a
school administrator, and other witnesses. The post-conviction court
determined that trial counsel contested the testimony of a key witness and
presented essentially all of the same background evidence at trial and
sentencing as was presented on post-conviction review. The court concluded
that trial counsel did not perform deficiently by not presenting cumulative
evidence.
d. Conclusion Regarding Effective Assistance of Counsel
As noted above, to prevail on his claim of ineffective assistance of
trial counsel, the defendant had the burden to prove to the post-conviction
court that his counsel's performance was substandard and that the deficient
performance prejudiced the defense. As to each of the specified claims of
attorney deficiency, the post-conviction court made findings and
conclusions contrary to the defendant's claim. In this appeal from the
judgment of the post-conviction court denying relief, the defendant has not
demonstrated that the evidence as a whole leads unmistakably and unerringly
to a conclusion contrary to the decision of the post-conviction court.
2. Absence of Charges
In his cross-appeal, the defendant also contends that the post-
conviction court erred in denying his claim that his trial, conviction, and
sentence were illegal because charges were never properly brought against
him. He argues that the 1989 charges that resulted in his trial,
conviction, and sentence were dismissed in 1991 and later improperly
reinstated without being formally refiled. The post-conviction court found
the claim to be without merit.
The post-conviction court found that the defendant's trial counsel
neither saw nor were served with a motion to dismiss and that, in major
felony cases, such motions are usually submitted in writing. The post-
conviction court determined that, although the deputy prosecutor at some
point wanted to dismiss the charges filed in 1989, they were never
dismissed and that the charges filed in the 1992 case were duplicative of
the 1989 charges that were still pending before the trial court. The post-
conviction court concluded that the defendant failed to show that no valid
charges were brought against him.
The defendant derives this claim from a pleading entitled Notice of
Refiling filed on August 5, 1992, when the State refiled these criminal
charges in cause number 49G05-9208-CF-101477, a separate cause. The Notice
of Refiling recited that the cause had been charged in this present
proceeding, cause number 49G05-8911-CF-131401, and dismissed on November
16, 1991. The charges refiled in 1992 were dismissed on the State’s motion
two days later. And, on that same day, the State also filed in the present
cause a Motion to Withdraw Motion to Dismiss. The defendant cannot
establish either the filing or the granting of any motion to dismiss the
present cause, and we find none. Furthermore, the record and filings at
and around the time of the purported motion to dismiss and dismissal of
charges demonstrate that both the defendant and the State were actively
involved in ongoing discovery without any indication that either the
parties or the trial court intended or understood that the charges were
being dismissed.
The defendant has not demonstrated that the evidence unmistakably and
unerringly points to a conclusion contrary to the decision of the post-
conviction court.
Conclusion
We reverse and vacate that portion of the post-conviction court's
order setting aside the death sentence and ordering a new penalty phase and
sentencing hearing, and we affirm the remaining portion of the order
denying relief. The defendant's petition for post-conviction relief is
denied.
Shepard, C.J., and Sullivan and Boehm, JJ., concur. Rucker, J.,
concurs in result.
-----------------------
[1] Ind. Code § 35-42-1-1.
[2] Ind. Code § 35-41-5-1; Ind. Code § 35-42-1-1.
[3] Ind. Code § 35-42-5-1.
[4] Ind. Code § 35-41-5-2; Ind. Code § 35-42-5-1.
[5] Justice Selby concurred in the majority opinion but wrote a
separate concurring opinion addressing an unrelated issue.
[6] Because we hold that this claim was well-presented and addressed
on direct appeal, the claim of ineffective assistance of appellate counsel
is wholly without merit and does not supersede the application of the
doctrine of res judicata.
[7] The U.S. Supreme Court recently revisited the process for
determining whether a defendant has been denied the right to counsel
guaranteed by the Sixth Amendment. Williams, --- U.S. at ---, 120 S.Ct.
1479, --- L.Ed.2d at ---. In Williams, the Court instructed that Lockhart
v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), should
not be read to modify the Strickland test by requiring "a separate inquiry
into fundamental fairness when [the defendant] is able to show that his
lawyer was ineffective and that his ineffectiveness probably affected the
outcome of the proceeding." Williams, --- U.S. at ---, 120 S.Ct. at 1513,
--- L.Ed.2d at ---. The post-conviction court, in reciting the two-pronged
standard, cited Lockhart v. Fretwell. P.C.R. Record at 959. However, the
prejudice prong was not determinative in the post-conviction court's ruling
because the court found that trial counsel's performance was not deficient.
Because the post-conviction court found no deficient performance, we need
not determine whether the court applied the standard in a way contrary to
the instruction in Williams.
[8] Throughout his brief, the defendant refers to Michael Vance as his
co-defendant. However, the defendant and Vance were tried separately.