Matthew Johnson v. State of Indiana ( 2018 )

FILED
May 31 2018, 9:00 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
J. Michael Sauer
Ellen H. Meilaender
Deputy Public Defender
Deputy Attorney General
Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Matthew Johnson, May 31, 2018
Appellant-Defendant, Court of Appeals Case No.
79A05-1711-PC-2505
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D02-1407-PC-5
May, Judge.
[1] Matthew Johnson appeals the denial of his petition for post-conviction relief.
He argues the post-conviction court erred when it rejected his allegation that his
appellate counsel was ineffective for failing to argue the application of the
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Proportionality Clause to Johnson’s conviction of Class B felony aggravated
battery. We affirm.
Facts and Procedural History
[2] On July 20, 2011, the trial court found Johnson guilty of Class B felony
aggravated battery, 1 Class C felony battery, 2 Class B felony possession of
methamphetamine, 3 Class C felony possession of methamphetamine, 4 and
Class C felony possession of chemical reagents or precursors with intent to
manufacture controlled substances. 5 The trial court also found Johnson was a
habitual substance offender. 6 On September 30, 2011, the trial court sentenced
Johnson to fifteen years for Class B felony aggravated battery to be served
consecutive to fifteen years for Class B felony possession of methamphetamine,
which was enhanced by five years by virtue of Johnson’s habitual substance
offender adjudication, for an aggregate sentence of thirty-five years
incarcerated. 7
1
Ind. Code § 35-42-2-1.5 (1997).
2
Ind. Code § 35-42-2-1(a)(3) (2009).
3
Ind. Code § 35-48-4-6.1 (b)(2) (2006).
4
Ind. Code § 35-48-4-6.1(b)(1) (2006).
5
Ind. Code § 35-48-4-14.5(e) (2006).
6
Ind. Code § 35-50-2-10(b) (2006).
7
The trial court did not enter sentences for the Class C felonies due to double jeopardy concerns.
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[3] On appeal, Johnson’s appellate counsel raised four issues:
(1) whether the court abused its discretion by denying his motion
to sever the drug-related charges; (2) whether the court abused its
discretion by refusing to add language to the self-defense
instruction; (3) whether the court abused its discretion by refusing
to instruct the jury regarding defenses to the drug charges; and (4)
whether the sentence was inappropriate.
(App. Vol. II at 127.) We affirmed Johnson’s convictions and sentence.
Johnson v. State, Cause No. 79A02-1110-CR-991 (Ind. Ct. App. Sept. 21, 2012).
[4] On July 16, 2014, Johnson filed a pro se petition for post-conviction relief. On
December 15, 2016, Johnson, with the aid of counsel, filed an amended petition
for post-conviction relief. Johnson argued his appellate counsel was ineffective
for failing to argue on appeal that Johnson’s conviction of Class B felony
aggravated battery violated the Proportionality Clause. The post-conviction
court held an evidentiary hearing on the petition on August 2, 2017. On
October 27, 2017, the post-conviction court denied Johnson’s petition.
Discussion and Decision
[5] A post-conviction petition is not a substitute for an appeal, nor does it afford a
petitioner a “super appeal.” Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006).
Post-conviction proceedings afford petitioners a limited opportunity to raise
issues that were unavailable or unknown at trial and on direct appeal. Davidson
v. State, 763 N.E.2d 441, 443 (Ind. 2002), reh’g denied, cert. denied, 537 U.S. 1122(2003). As post-conviction proceedings are civil in nature, the petitioner must
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prove his grounds for relief by a preponderance of the evidence. Id. A party
appealing a post-conviction judgment must establish that the evidence is
without conflict and, as a whole, unmistakably and unerringly points to a
conclusion contrary to that reached by the post-conviction court. Id. Where, as
here, the post-conviction court makes findings of fact and conclusions of law in
accordance with Indiana Post-Conviction Rule 1(6), we do not defer to the
court’s legal conclusions, but “the findings and judgment will be reversed only
upon a showing of clear error—that which leaves us with a definite and firm
conviction that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d 102,
106 (Ind. 2000) (internal quotation and citation omitted), reh’g denied, cert.
denied, 534 U.S. 830 (2001).
[6] We review claims of ineffective assistance of appellate counsel using the same
standard applicable to claims of trial counsel ineffectiveness. Fisher v. State, 810
N.E.2d 674, 676-7 (Ind. 2004). The defendant must show that appellate
counsel was deficient in his performance and that the deficiency resulted in
prejudice. Id. at 677. A claim of ineffective appellate assistance generally falls
into one of three categories: (1) denial of access to an appeal; (2) waiver of
issues; or (3) failure to present issues well. Id. We employ a two-part test to
evaluate “waiver of issue” claims: (1) whether the unraised issues are significant
and obvious from the face of the record, and (2) whether the unraised issues are
“clearly stronger” than the raised issues. Id.[7] Because counsel has considerable discretion in choosing strategy and tactics, we
presume counsel’s assistance was adequate and all significant decisions were
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made in the exercise of reasonable professional judgment. State v. Miller, 771
N.E.2d 1284, 1288 (Ind. Ct. App. 2002), reh’g denied, trans. denied. One of the
most important strategic decisions is deciding what issues to raise on appeal.
Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1998), reh’g denied, cert. denied, 525
U.S. 1021 (1998). Appellate counsel is not ineffective for declining to present a
claim that had no merit. Stowers v. State, 657 N.E.2d 194, 200 (Ind. Ct. App.
1995), trans. denied. We consider the reasonableness of appellate counsel’s
strategic decisions based upon precedent available at the time of the direct
appeal. Williamson v. State, 798 N.E.2d 450, 454 (Ind. Ct. App. 2003), reh’g
denied, trans. denied.
[8] In his post-conviction relief petition, Johnson argued his appellate counsel was
ineffective because appellate counsel did not present on direct appeal the
argument that the Proportionality Clause of the Indiana Constitution prohibited
sentencing Johnson for Class B felony aggravated battery because Class B
felony aggravated battery and Class D felony criminal recklessness 8
encompassed the same elements. The Proportionality Clause of the Indiana
Constitution states: “All penalties shall be proportioned to the nature of the
offense.” Ind. Const. Article 1, Section 16. A sentence violates the
Proportionality Clause when “offenses with identical elements [are] given
8
Ind. Code § 35-42-2-2(d) (2006).
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different sentences.” Poling v. State, 853 N.E.2d 1270, 1276-7 (Ind. Ct. App.
2006), reh’g denied.
[9] Before the post-conviction court, Johnson argued his appellate counsel should
have presented a Proportionality Clause argument based on Johnson’s
perception that there existed a “split of authority in the Court of Appeals on the
Proportionality Clause[.]” (Br. of Appellant at 11.) Johnson contended a split
was created our court’s holdings in Poling 9 and Matthews v. State, 944 N.E.2d 29(Ind. Ct. App. 2011), reh’g denied, and this alleged split made the Proportionality
Clause argument stronger than the arguments appellate counsel presented on
appeal.
[10] During the post-conviction evidentiary hearing, appellate counsel argued he did
not present a Proportionality Clause argument as part of Johnson’s direct
appeal based on our holding in Matthews, which stated, in relevant part, that a
conviction of Class B felony aggravated battery does not violate the
Proportionality Clause because Class B felony aggravated battery and Class D
criminal recklessness do not have the same elements. 944 N.E.2d at 33. The
post-conviction court found:
The Matthews decision was issued 14 months before appellate
counsel filed his brief. Matthews was grounded in the 2008 Mann
9
Poling held the elements of Class C felony child neglect and Class D felony child neglect were identical and,
thus, Poling’s conviction and sentence for Class C felony child neglect violated the Proportionality Clause.
Poling, 853 N.E.2d at 1277. By contrast, the elements of Class B felony aggravated battery and Class D
felony criminal recklessness are not identical, as held in Matthews. Matthews, 944 N.E.2d at 33.
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decision. These cases were existing precedent and failed to
follow the Poling decision upon which Johnson relies. The
Matthews case is directly on point in this case and was existing
case law at the time of Johnson’s appeal. Thus, Johnson cannot
demonstrate that the issue his appellate counsel failed to raise
would have been clearly more likely to result in reversal or order
for new sentencing.
(App. Vol. II at 133-4.)
[11] In Matthews, our court affirmed the post-conviction court’s denial of post-
conviction relief based on an argument similar to that raised here by Johnson.
Matthews asserted his counsel, who represented him at the trial and appellate
levels, was ineffective because he did not argue the Proportionality Clause as
related to Matthews’ conviction and sentence for Class B felony aggravated
battery and Class C felony battery. Matthews, 944 N.E.2d at 33. Like Johnson,
Matthews argued the elements for Class B felony aggravated battery were
identical to the elements for Class D felony criminal recklessness, and thus his
counsel was ineffective for failing to argue the Proportionality Clause because
his conviction of and sentence for Class B felony aggravated battery violated the
clause. Our court concluded
the mental state required for Class D felony criminal recklessness
is different from the mental state required for the other two
crimes [Class B felony aggravated battery and Class C felony
battery]. . . . Because the three crimes do not have identical
elements, the proportionality clause of our Constitution is not
offended if our legislature assigns different sentences to them.
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Id. Therefore, we held Matthews had not demonstrated he was prejudiced by
any alleged error his counsel made in not arguing the Proportionality Clause.
[12] The same is true here. When appellate counsel filed Johnson’s direct appeal,
Matthews had recently been handed down and was directly on point, as its
holding addressed the same issue Johnson now argues should have been
presented: whether the elements of Class B felony aggravated battery and Class
D felony criminal recklessness were identical, making their disparate sentences
violate the Proportionality Clause. As appellate counsel relied upon the
precedent available and directly on point at the time of the direct appeal,
Johnson has not demonstrated appellate counsel was ineffective for failing to
argue for the application of the Proportionality Clause. See Bieghler, 690 N.E.2d
at 194 (courts “should not find deficient performance when counsel’s choice of
some issues over others was reasonable in light of the facts of the case and the
precedent available to counsel when that choice was made”). Therefore, the
trial court did not err when it denied Johnson’s petition for post-conviction
relief. See Ben-Yisrayl, 729 N.E.2d at 106 (appellate court will reverse post-
conviction court’s decision only upon demonstration of clear error).
Conclusion
[13] Johnson has not demonstrated his appellate counsel was ineffective for failing
to present a Proportionality Clause argument because the precedent existing at
the time undermined the validity of Johnson’s proposed argument.
Accordingly, we affirm.
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[14] Affirmed.
Riley, J., and Mathias, J., concur.
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