Sheba Sorrells v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Apr 13 2015, 6:12 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Sheba Sorrells Gregory F. Zoeller
Pendleton, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sheba Sorrells, April 13, 2015
Appellant-Defendant, Court of Appeals Case No.
73A01-1411-PC-499
v. Appeal from the Shelby Superior
Court, No. 1
State of Indiana, The Honorable Jack A. Tandy,
Judge
Appellee-Plaintiff
Case No. 73D01-0812-FB-016
Vaidik, Chief Judge.
Case Summary
[1] In 2009 Sheba Sorrells was convicted of Class B felony sexual misconduct with
a minor, Class C felony sexual misconduct with a minor, and Class A
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misdemeanor contributing to the delinquency of a minor; at a bifurcated
proceeding, Sorrells was also found to be a repeat sexual offender. Sorrells filed
a notice of appeal but did not thereafter pursue the direct appeal. In June 2011
Sorrells filed a pro se petition for post-conviction relief, arguing that he received
ineffective assistance of trial counsel and that the trial court committed
fundamental error in denying his motion to continue. Following a hearing at
which Sorrells presented witness testimony of several family members, the post-
conviction court issued written findings of fact and conclusions of law denying
relief. Sorrells, pro se, now appeals.
Facts and Procedural History1
[2] In 2009, following a three-day jury trial, Sheba Sorrells was convicted of Class
B felony sexual misconduct with a minor, Class C felony sexual misconduct
with a minor, and Class A misdemeanor contributing to the delinquency of a
minor. These convictions came about because of acts committed against a
teenage victim, R.M.H. At a bifurcated proceeding, Sorrells was also found to
be a repeat sexual offender. Following sentencing the trial court advised
Sorrells of his appellate rights and then instructed Sorrells’ attorney, G. Allen
Lidy (“Attorney Lidy”), to preserve his appellate rights. Attorney Lidy filed a
1
Sorrells’ trial counsel filed a Notice of Appeal, requesting the Clerk to assemble the trial court’s record, the
entire transcript of the jury trial, and the transcript of the sentencing hearing. See Appellant’s App. p. 147.
However, Sorrells failed to pursue a direct appeal, and it appears that a transcript was never created. In any
event, we do not have before us a factual record of the proceedings below.
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Notice of Appeal but Sorrells did not follow through on perfecting a direct
appeal from judgment.
[3] In 2011 Sorrells filed a pro se petition for post-conviction relief arguing that he
received ineffective assistance of trial counsel and that the trial court committed
fundamental error when it denied his motion to continue based on an allegedly
late discovery by the State of a medical report. An evidentiary hearing was held
in 2014. At the hearing, Sorrells called four witnesses to testify—his mother,
father, grandfather, and daughter, C.H.—in support of his argument that his
trial counsel was ineffective for failing to call these witnesses at his trial. The
testimony of these witnesses at the post-conviction hearing revealed that
Sorrells’ mother, brother, and grandfather had not observed and had no first-
hand knowledge of the crimes of which Sorrells was convicted. C.H. testified
that Attorney Lidy interviewed her before the trial and then decided not to have
her testify. On cross-examination at the post-conviction hearing, C.H. admitted
that in her statement to the police she had lied about Sorrells taking her and her
friend, the teenage victim R.M.H., to a liquor store to buy alcohol because she
“was afraid [her] dad was going to get in trouble.” P-C Tr. p. 33. C.H. also
testified that her father told her and R.M.H., “What happens here stays here.”
Id. at 43.
[4] Sorrells also submitted into evidence a check for $545.72—which was admitted
as Petitioner’s Exhibit A—from his trial counsel’s law firm, which was
deposited into his trust account at Pendleton Correctional Facility after he filed
the petition for post-conviction relief. At the time he offered the check into
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evidence, Sorrells stated, “I don’t know about anyone else here, but when
someone is given a refund of money for the job that they’ve done, I believe it’s
because, you know, they didn’t do an adequate job.” Id. at 44.
[5] Sorrells presented no evidence at the hearing on the trial court’s failure to grant
his motion to continue, resulting in—as he argued in his petition for post-
conviction relief—“fundamental error and denial of due process of law and fair
trial.” Appellant’s App. p. 163. During closing argument, when the State
referenced this claim from Sorrells’ petition, Sorrells interjected, “I forgot about
that.” Tr. p. 49.
[6] Following the hearing, the post-conviction court issued findings of fact and
conclusions of law denying Sorrells’ petition for post-conviction relief. The
court wrote in pertinent part:
5) The Petition alleges fundamental error and denial of due process of
law and fair trial because the State purposely withheld evidence from
him and the trial court denied a requested continuance of his jury trial
date. The Petitioner presented no evidence of withheld evidence by
the State of Indiana or any evidence or argument related to denial of
requested continuance of his trial.
6) The Petitioner also alleged ineffective assistance of his trial counsel
by failing to investigate the facts of the case, interview witnesses,
introduce documentary evidence, and present medical expert
testimony regarding DNA evidence. Petitioner presented four
witnesses at the hearing. Each witness, all family members of
Petitioner, testified they were present at the scene of the criminal
allegations and had information related to the demeanor and
appearance of the victim. They each testified they discussed with
[Attorney] Lidy their anticipated testimony. None of the four
witnesses were called to testify. Each testified [Attorney] Lidy told
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them that their testimony was not necessary or that it would not be in
petitioner’s best interests for them to testify.
7) Trial counsel Lidy vigorously represented Petitioner during the
three day jury trial.
Appellant’s App. p. 193-94.
[7] Sorrells now appeals.
Discussion and Decision
[8] On appeal, Sorrells argues that the post-conviction court erred in finding that he
was not denied effective assistance of trial counsel, and he continues to
maintain that the trial court committed fundamental error in denying his
motion to continue his trial. In post-conviction proceedings, the petitioner
bears the burden of proof by a preponderance of the evidence. Ind. Post-
Conviction Rule 1(5); Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). When
appealing from the denial of post-conviction relief, the petitioner stands in the
position of one appealing from a negative judgment, and the standard of review
is rigorous. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); see also Trujillo v.
State, 962 N.E.2d 110, 113 (Ind. 2011). “To prevail on appeal from the denial
of post-conviction relief, a petitioner must show that the evidence as a whole
leads unerringly and unmistakably to a conclusion opposite that reached by the
post-conviction court.” Kubsch v. State, 934 N.E.2d 1138, 1144 (Ind. 2010),
reh’g denied. Here, the post-conviction court made findings of fact and
conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). “A
post-conviction court’s findings and judgment will be reversed only upon a
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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) (citation and quotation marks omitted). “The post-conviction court is the
sole judge of the weight of the evidence and the credibility of witnesses.” Woods
v. State, 701 N.E.2d 1208, 1210 (Ind. 1998). Accordingly, we accept the post-
conviction court’s findings of fact unless they are clearly erroneous, but we do
not defer to the post-conviction court’s conclusions of law. Wilson v. State, 799
N.E.2d 51, 53 (Ind. Ct. App. 2003).
[9] First Sorrells alleges that he received ineffective assistance of trial counsel
because Attorney Lidy failed to “investigate[] the scene of the crime” and didn’t
call four “key witnesses.” Appellant’s Br. p. 5. 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 (1984).
Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001). First, the defendant must
show that counsel’s performance was deficient. Id. (citing Strickland, 466 U.S.
at 687). This requires a showing that counsel’s representation fell below an
objective standard of reasonableness, and that the errors were so serious that
they resulted in a denial of the right to counsel guaranteed the defendant by the
Sixth Amendment. Id. (internal citation omitted). Second, the defendant must
show that the deficient performance prejudiced the defense. 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 have
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been different. Id. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id.[10] Counsel is afforded considerable discretion in choosing strategy and tactics, and
we will accord those decisions deference. Id. A strong presumption arises that
counsel rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment. Id. 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. Isolated mistakes, poor strategy, inexperience, and instances of bad
judgment do not necessarily render representation ineffective. Id. (citing
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)). The
two prongs of the Strickland test are separate and independent inquiries. Id.Thus, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice . . . that course should be followed.” Williams v.
State, 706 N.E.2d 149, 154 (Ind. 1999) (quoting Strickland, 466 U.S. at 697).
[11] At the post-conviction hearing, Sorrells called four witnesses to testify—his
mother, father, grandfather, and daughter, C.H.—in support of his argument
that his trial counsel was ineffective for failing to call these witnesses at his trial.
Sorrells’ mother testified that she spoke with the victim, R.M.H., on the
telephone “[d]uring the week in question” and R.M.H. “never said a word and
she never acted like anything was happening.” P-C Tr. p. 8. Sorrells’ mother
also testified that she asked Attorney Lidy if he wanted her to testify and he said
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he didn’t need her to. Sorrells’ brother testified that he asked Attorney Lidy if
he could testify, and Attorney Lidy had asked for an interview, but Sorrells’
brother thought perhaps he (the brother) had not “followed through” before the
trial. Id. at 11. Sorrells’ brother went on to testify that he had conversed with
R.M.H. around the time of the events for which Sorrells was convicted and
R.M.H. “showed no signs of [having been molested].” Id. at 15. On cross-
examination, the State confirmed that Sorrells’ brother’s opinion that “it likely
didn’t happen” was “the entire evidence [he] had in this.” Id. at 19. On cross-
examination, Sorrells’ grandfather admitted that he had no personal knowledge
of any of the events that led to Sorrells’ convictions.
[12] And finally, Sorrells’ daughter, C.H., testified that Attorney Lidy had
interviewed her before the trial and then decided not to have her testify. On
cross-examination at the post-conviction hearing, C.H. admitted that in her
statement to the police she had lied about Sorrells taking her and her friend, the
teenage victim R.M.H., to a liquor store to buy alcohol because she “was afraid
[her] dad was going to get in trouble.” P-C Tr. p. 33. C.H. also testified that
her father told her and R.M.H., “What happens here stays here.” Id. at 43. In
light of this testimony, it is understandable that Attorney Lidy did not believe
that C.H. would be particularly helpful to Sorrells’ case.
[13] Given the testimony elicited from all four witnesses at the post-conviction
hearing, we cannot say that Sorrells has met his burden of showing a reasonable
probability that, but for Attorney Lidy’s decision not to have these witnesses
testify—insofar as that can be considered counsel’s “unprofessional errors”—
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the result of the proceeding would have been different. See Strickland, 466 U.S.
at 694; Timberlake, 753 N.E.2d at 603. Sorrells has failed to show that counsel’s
performance fell below an objective standard of reasonableness such that
Sorrells was denied effective assistance of trial counsel.
[14] Next Sorrells maintains that the trial court committed fundamental error in
denying his motion to continue after the State produced a medical report
shortly before the trial. However, the post-conviction procedures do not
provide a petitioner with an opportunity to consider freestanding claims that the
original trial court committed error. Lambert v. State, 743 N.E.2d 719, 726 (Ind.
2001), reh’g denied. Such claims are available only on direct appeal. Id. (citing
Williams v. State, 724 N.E.2d 1070, 1076 (Ind. 2000)). Moreover, at the post-
conviction hearing, Sorrells presented no evidence whatsoever in support of this
contention, and the post-conviction court noted as much in its findings of fact.
[15] We cannot say that Sorrells has shown that the evidence as a whole leads
unerringly and unmistakably to a conclusion opposite that reached by the post-
conviction court. See Kubsch, 934 N.E.2d at 1144.
Affirmed.
Kirsch, J., and Bradford, J., concur.
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