Leif O'Connell v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 17 2018, 5:48 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Leif O’Connell Curtis T. Hill, Jr.
Pendleton, Indiana Attorney General of Indiana
Ellen H. Meilaender
Supervising Deputy
Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Leif O’Connell, December 17, 2018
Appellant-Petitioner, Court of Appeals Case No.
18A-PC-372
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jane Woodward
Appellee-Respondent. Miller, Judge
Trial Court Cause No.
71D01-1701-PC-6
Robb, Judge.
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Case Summary and Issues
[1] Following a jury trial in 1999, Leif O’Connell was convicted of one count of
murder and five counts of attempted murder and sentenced to 175 years.
O’Connell pursued a direct appeal, as a result of which his convictions were
affirmed. In 2014, O’Connell’s first petition for post-conviction relief was
denied. In that petition, O’Connell alleged his trial counsel and appellate
counsel were ineffective in several respects. O’Connell did not appeal the
denial of post-conviction relief.
[2] In 2016, O’Connell sought permission from this court to file a successive
petition for post-conviction relief, which this court granted. O’Connell then
filed his successive petition for post-conviction relief, which the post-conviction
court denied. O’Connell now appeals the denial, raising the following issues:
1) whether the post-conviction court erred in determining he did not receive
ineffective assistance of appellate counsel when appellate counsel raised issues
that had no merit and failed to raise significant and obvious issues; and 2)
whether the post-conviction court erred in determining he did not receive
ineffective assistance of trial counsel when trial counsel failed to object to
prosecutorial misconduct during closing arguments and misadvised him
regarding a plea agreement offer. The State asserts O’Connell’s claims are
barred because he raised issues concerning ineffective assistance of trial and
appellate counsel in previous proceedings. Concluding the State is correct and
that O’Connell’s claims are procedurally defaulted, we affirm the denial of post-
conviction relief.
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Facts and Procedural History
[3] O’Connell purchased a gun on February 11, 1997. From February 12 to
February 26, O’Connell shot at six people, injuring four and killing one. The
State charged O’Connell with one count of murder and five counts of attempted
murder. At the conclusion of his jury trial, O’Connell was convicted of all
counts. The trial court imposed consecutive sentences totaling 175 years.
[4] On direct appeal, O’Connell raised four issues: 1) whether O’Connell waived
the right to a court-ordered pre-trial lineup and whether the trial court erred in
allowing in-court identifications by two victims; 2) whether O’Connell waived
any error in the trial court allowing a surprise witness by the State; 3) whether
the evidence was sufficient to support his convictions; and 4) whether the trial
court erred in sentencing O’Connell to consecutive sentences. Our supreme
court affirmed O’Connell’s convictions but found that the sentencing statement
was insufficient to afford meaningful review of the sentence and remanded to
the trial court on that issue. O’Connell v. State, 742 N.E.2d 943, 952-53 (Ind.
2001). On remand, the trial court entered a new sentencing order but imposed
the same aggregate 175-year sentence. This court affirmed the sentence on
appeal. O’Connell v. State, No. 71A04-0105-CR-224 (Ind. Ct. App. Nov. 30,
2001), trans. denied.
[5] In 2002, O’Connell filed his first petition for post-conviction relief pro se, which
was amended in 2012 by privately-retained counsel after the State Public
Defender withdrew. At the post-conviction hearing in 2014, the following
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issues were addressed: whether O’Connell’s trial counsel provided ineffective
assistance by failing to raise an insanity defense at trial, failing to follow
through with a court-ordered pre-trial line-up and failing to object to
identification evidence presented at trial, failing to request a continuance
because a State’s witness was belatedly disclosed, and failing to retain a
ballistics expert. In addition, O’Connell claimed that his appellate counsel was
ineffective by failing to raise these instances of ineffective assistance of trial
counsel on direct appeal. The post-conviction court denied O’Connell’s
petition for post-conviction relief. No appeal was taken from the denial.
[6] In 2016, O’Connell filed with this court a petition for permission to file a
successive petition for post-conviction relief. In that petition, O’Connell alleged
as grounds for relief that his post-conviction counsel “was clearly wrong” in
raising the issue of whether appellate counsel was ineffective for failing to raise
the issue of ineffective assistance of trial counsel on direct appeal because that
practice is not encouraged; rather, post-conviction counsel should have raised
the issues of whether appellate counsel raised issues on appeal that were
without merit or that were not presented well and whether appellate counsel
failed to raise significant issues clearly present in the record. Appellant’s
Appendix, Volume 2 at 12. He also alleged as grounds for relief that his post-
conviction counsel’s “misrepresentation and bad advice” resulted in no
meritorious claims against appellate counsel in his first post-conviction
proceeding and caused him to forfeit his right to appeal meritorious issues
related to ineffective assistance of his trial counsel. Id. at 14-15. This court
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granted O’Connell’s petition, concluding he “has established a reasonable
possibility that he is entitled to post-conviction relief[.]” Id. at 17.
[7] On October 5, 2016, O’Connell filed his successive petition for post-conviction
relief with the post-conviction court. The petition was subsequently amended
by permission of the post-conviction court. The issues raised therein were:
(a) Whether [O’Connell] was denied effective assistance of
appellate counsel in violation of the Sixth and Fourteenth
Amendments to the United States Constitution; Article One,
sections Twelve and Thirteen of the Indiana Constitution when
appellate counsel raised issues that had no merit failing to present
them well on appeal, and failing to raise significant and obvious
issues stronger than the issues raised.
Id. at 20.
(b) Whether [O’Connell] was denied effective assistance of
counsel in violation of the Sixth and Fourteenth Amendments to
the United States Constitution and Article One, sections Twelve
and Thirteen of the Indiana Constitution when Trial counsel
failed to object to prosecutorial misconduct during closing
arguments and misadvised [O’Connell] concerning an insanity
defense and in declining a plea agreement offer.
Id. at 65 (emphasis omitted).1 With respect to appellate counsel, O’Connell
specifically argued he should have raised the following issues: whether the trial
1
In his reply brief, O’Connell withdraws his claim regarding the insanity defense because it is res judicata,
having already been litigated in his first post-conviction proceeding. See Appellant’s Reply Brief at 6; see also,
e.g., Conner v. State, 829 N.E.2d 21, 25 (Ind. 2005) (noting that to the extent a claim is the same as has been
raised before and decided adversely, it is barred by the doctrine of res judicata).
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court abused its discretion in admitting autopsy photographs; whether the trial
court erred in dismissing two jurors and not dismissing a third; and whether the
State committed prosecutorial misconduct during closing argument. See id. at
26-33. The State responded, pleading the affirmative defenses of waiver and res
judicata. The post-conviction court held a hearing over two days in 2017 at
which O’Connell stated, “I feel that none of my previous appeals have any of
my issues ever been litigated to the fullest extent.” Transcript, Volume 1 at 55.
O’Connell called his trial and appellate counsel as witnesses. The post-
conviction court issued its order denying O’Connell relief on January 26, 2018.2
O’Connell now appeals the denial.
Discussion and Decision
I. Standard of Review
[8] Post-conviction proceedings are civil in nature and the petitioner must therefore
establish his claims by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5). Post-conviction procedures create a narrow remedy for subsequent
collateral challenges to convictions, and those challenges must be based on the
grounds enumerated in post-conviction rules. Turner v. State, 974 N.E.2d 575,
581 (Ind. Ct. App. 2012), trans. denied. “Post-conviction proceedings do not
afford the petitioner an opportunity for a super appeal, but rather, provide the
2
The post-conviction court’s order addresses O’Connell’s petition solely on the merits and does not address
the State’s waiver or res judicata arguments.
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opportunity to raise issues that were unknown or unavailable at the time of the
original trial or the direct appeal.” Id.[9] A petitioner who has been denied post-conviction relief faces a “rigorous
standard of review” on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind.
2001). We may not reweigh the evidence or reassess the credibility of the
witnesses and we consider only the evidence and reasonable inferences
supporting the judgment. Hall v. State, 849 N.E.2d 466, 468-69 (Ind.
2006). The petitioner must show the evidence is without conflict and leads
“unerringly and unmistakably to a conclusion opposite that reached by the post-
conviction court.” Strowmatt v. State, 779 N.E.2d 971, 975 (Ind. Ct. App.
2002).
II. Trial & Appellate Counsel Claims
[10] O’Connell concedes in his brief that he filed a successive petition for post-
conviction relief “raising Ineffective assistance of appellate counsel and trial
counsel[.]” Brief of Appellant at 7. His arguments on appeal are that appellate
counsel failed to review the pre-trial record, raised issues that “had no merit and
were destined to fail on appeal[,]” id. at 8, and failed to raise several issues that
were significant and obvious on the face of the record; and that trial counsel
failed to object to the State’s closing argument and misadvised O’Connell
regarding a plea offer from the State. His conclusion is that he “has proven
beyond the preponderance of the evidence that his trial counsel and appellate
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counsels were ineffective in representing him during trial and on direct
appeal[.]” Id. at 40.
[11] The State asserts O’Connell’s claims are barred by res judicata or otherwise
procedurally defaulted. “Proper successive petitions contain claims that by
their nature could not have been raised in earlier proceedings.” Matheney v.
State, 834 N.E.2d 658, 662 (Ind. 2005). Claims that could have been raised in
earlier proceedings but were not are procedurally defaulted; claims that have
already been decided adversely to the petitioner are barred from re-litigation in
successive post-conviction proceedings by res judicata. Id. O’Connell
acknowledges the State asserted the affirmative defenses of waiver and res
judicata in its response to his successive petition but claims that it is actually the
State that has waived this issue by failing to argue it at the post-conviction
hearing or address it in its proposed findings of fact and conclusions. However,
“where an issue has not been properly preserved for review, an appellate court
may decline to address such an issue whether or not the State has properly
pleaded or proved the affirmative defense of waiver.” Taylor v. State, 780
N.E.2d 430, 433 (Ind. Ct. App. 2002), trans. denied; see also Bunch v. State, 778
N.E.2d 1285, 1287 (Ind. 2002) (noting aside from the Trial Rule 8(C)
affirmative defense of waiver, there is a “doctrine of judicial administration
whereby appellate courts may sua sponte find an issue foreclosed under a
variety of circumstances in which a party has failed to take the necessary steps
to preserve the issue” known as procedural default). Therefore, we may
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consider the State’s argument that O’Connell has not properly presented his
claims in this successive post-conviction proceeding.
[12] O’Connell claims his attorney provided poor representation during trial and
lists several alleged deficiencies. However, deficiencies in trial counsel’s
performance were raised in O’Connell’s first post-conviction petition and
addressed therein. O’Connell has not made any showing that the additional
deficiencies he now alleges were unavailable or unknown to him or his post-
conviction counsel in that proceeding. O’Connell’s current grounds for arguing
ineffective assistance of trial counsel were previously available but unasserted
and are therefore procedurally defaulted at this stage.
[13] O’Connell also claims his appellate attorney provided inadequate
representation during his direct appeal. Again, however, the assistance of his
appellate counsel was raised in his first post-conviction petition and O’Connell
has not made any showing that the claims of inadequate assistance he makes
now were unavailable then. In short, because the ineffectiveness of the counsel
who handled O’Connell’s trial and his direct appeal was raised in the first post-
conviction petition and decided adversely to him, he is not entitled to be heard
on additional issues bearing on their effectiveness in this successive petition.
See Hardy v. State, 786 N.E.2d 783, 787 (Ind. Ct. App. 2003) (“[A] defendant
must present all claims of ineffective assistance of counsel . . . at the same time.
Those not presented when a claim of ineffective assistance of counsel is first
advanced . . . are waived.”), trans. denied.
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[14] To the extent O’Connell claims that this court’s order granting him permission
to file a successive petition for post-conviction relief allows him to raise these
claims, we first note that Post-Conviction Rule 1(12)(c) specifically states that
“[a]uthorization to file a successive petition is not a determination on the merits
for any other purpose[.]” And we note again that all grounds for relief available
to a petitioner under the Post-Conviction Rules are required to be raised in the
original petition. P-C.R. 1(8). Only those grounds that were not known or
available may be advanced in a successive petition for post-conviction relief.
O’Connell’s petition for permission to file a successive petition for post-
conviction relief invoked errors by his post-conviction counsel that would have
been available for the first time in a successive petition. But O’Connell
abandoned that line of argument when he changed tactics and addressed only
trial and appellate counsel in the successive petition he filed with the post-
conviction court.
[15] O’Connell has had direct appeals of his convictions and sentence and has
availed himself of the rule that permits a person convicted of a crime in an
Indiana court one collateral review of the conviction and sentence in a post-
conviction proceeding. See P-C.R. 1(1). He has completed the review of his
convictions and sentence to which he is entitled as a matter of right. That
O’Connell was granted permission to file a successive petition does not obligate
this court to consider issues that are procedurally defaulted such as those he
raises here. O’Connell’s successive petition for relief was therefore properly
denied.
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III. Post-Conviction Counsel Claims
[16] To the extent O’Connell can be said to have challenged the performance of his
post-conviction attorney, his claims are subject to Graves v. State, 823 N.E.2d
1193, 1195-97 (Ind. 2005). In Graves, it was noted that post-conviction
proceedings are not criminal actions and therefore need not be conducted under
the same standard articulated in Strickland v. Washington, 466 U.S. 668 (1984),
for trial and appellate counsel. Rather, the standard for post-conviction counsel
is whether “counsel in fact appeared and represented the petitioner in a
procedurally fair setting which resulted in a judgment of the court” and a claim
of defective performance of counsel in a post-conviction proceeding “poses no
cognizable grounds for post-conviction relief[.]” Graves, 823 N.E.2d at 1196.
[17] In his petition requesting permission to file a successive petition for post-
conviction relief, O’Connell alleged his post-conviction counsel’s actions
resulted in forfeiting his appeal from the denial of his first post-conviction
petition. In Graves, the petitioner’s first post-conviction petition was denied.
His post-conviction counsel failed to timely appeal the post-conviction court’s
denial. The petitioner then filed a successive petition for post-conviction relief
alleging he received ineffective assistance of his post-conviction counsel. In
announcing the standard for evaluating the performance of post-conviction
counsel, the supreme court never discussed the failure to timely appeal or
suggested it was a consideration in assessing whether the petitioner was denied
a procedurally fair setting in which to adjudicate his post-conviction claim.
Rather, the court noted that the petitioner’s counsel appeared at and
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participated in the post-conviction hearing and therefore, “certainly did not
abandon” the petitioner. 823 N.E.2d at 1197. The court affirmed the denial of
the petitioner’s second petition for post-conviction relief. Id.
[18] The same result obtains here. O’Connell’s post-conviction counsel appeared at
the post-conviction hearing, offered testimony from one witness by affidavit and
elicited testimony from another witness, and submitted proposed findings of
fact and conclusions of law on O’Connell’s behalf. In addition, counsel
apparently reached an agreement with the State to modify O’Connell’s
sentence; however, the agreement was not approved by the trial court.
O’Connell was represented by counsel in a procedurally fair setting and has no
grounds for challenging the performance of his post-conviction counsel.3
Conclusion
[19] The issues O’Connell raised in his successive petition for post-conviction
regarding his trial and appellate counsel’s performance were all known and
available to him at the time of his first post-conviction proceeding and the
performance of his post-conviction counsel does not present a cognizable claim.
Therefore, the denial of his second post-conviction petition is affirmed.
3
O’Connell alleges “newly discovered evidence” from the post-conviction hearing concerning the sentencing
judge’s impartiality and the post-conviction judge’s previous service in the county prosecutor’s office.
O’Connell raises these issues for the first time on appeal and they are therefore waived. See Pavan v. State, 64
N.E.3d 231, 233 (Ind. Ct. App. 2016) (“It is well settled that issues not raised in a PCR petition may not be
raised for the first time on appeal.”).
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[20] Affirmed.
Baker, J., and May, J., concur.
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