Rickie Bill Gilliam v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Nov 16 2018, 9:04 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Rickie B. Gilliam Curtis T. Hill, Jr.
Carlisle, Indiana Attorney General of Indiana
George P. Sherman
Supervising Deputy
Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Rickie Bill Gilliam, November 16, 2018
Appellant-Petitioner, Court of Appeals Case No.
79A02-1706-PC-1390
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Respondent. Judge
Trial Court Cause No.
79D02-1406-PC-4
Robb, Judge.
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Case Summary and Issues
[1] Following a jury trial, Rickie Gilliam was convicted of two counts of attempted
murder, both Class A felonies; being a serious violent felon in possession of a
firearm, a Class B felony; attempted battery, a Class C felony; and maintaining
a common nuisance, a Class D felony. The trial court sentenced Gilliam to
sixty-three years in the Indiana Department of Correction. We affirmed
Gilliam’s convictions on direct appeal. Gilliam v. State, No. 79A02-1206-CR-
482 (Ind. Ct. App. Apr. 1, 2013), trans. denied. Thereafter, Gilliam filed a
petition for post-conviction relief alleging ineffective assistance of trial counsel
which was denied by the post-conviction court. Gilliam, pro se, now appeals
the denial of post-conviction relief, raising two issues for our review which we
restate as (1) whether the post-conviction court erred in denying Gilliam’s
petition for post-conviction relief, and (2) whether Gilliam received ineffective
assistance of post-conviction counsel. Concluding the post-conviction court did
not err and Gilliam did not receive ineffective assistance of post-conviction
counsel, we affirm.
Facts and Procedural History
[2] We summarized the facts and procedural history of this case in Gilliam’s direct
appeal:
Heather Short and Gilliam were involved in a romantic
relationship for approximately three years and lived together in
Lafayette with their three-year-old son. In December 2010, the
couple argued and Gilliam pulled out a gun. Gilliam stated that
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he would “kill [Heather] with the gun if [she] didn’t knock [her]
sh*t off.” Heather was scared and would not leave the couple’s
bedroom. At some point, Heather sent a text message to her
brother, Jeremiah Short, who came to the house and went to
Heather’s bedroom window. Jeremiah talked to Heather and
wanted her to leave with him; however, Heather declined.
On January 8, 2011, Heather and Gilliam ended their
relationship. Heather went to Jeremiah’s to stay, and at some
point, Heather and Jonathan Beard, Jeremiah’s roommate, began
a sexual relationship. On January 14, 2011, Heather drove Beard
to his job at Penguin Liquors. Heather asked Beard if he knew of
any place where she could stay that night because she “was
trying to avoid her son’s father.” Beard offered to rent her a
motel room for the weekend. After Beard’s shift ended at 2:00
a.m., Heather picked him up and drove to an Economy Inn,
where Beard paid for a room.
After pulling up to one of the rooms, Heather and Beard noticed
that the number on the door was not the same room that he had
rented. Heather put the car in reverse, but at that moment,
Gilliam drove up in a red vehicle. Gilliam exited his car and
started shooting at Heather and Beard with a handgun.
Numerous rounds hit the body of the vehicle and the windows.
Beard hunched down to avoid being shot and Heather
accelerated. Gilliam fired another shot that struck Heather’s
windshield.
After Heather drove away, she contacted 911 and reported that
Gilliam had tried to kill her and Beard. Shortly after the call,
several police officers went to Gilliam’s residence and noticed a
red Chevy Impala parked in the driveway, but the license plate
on the vehicle was registered to Gilliam’s red Pontiac Grand
Prix. The Impala was slightly covered in snow, and the engine
was cold.
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The officers set up a perimeter around the house and although a
television was on, no one was observed entering or exiting the
house. Later that morning, a SWAT team searched the house
and confirmed that no one was inside. The officers discovered
twelve rounds of .9mm Ruger ammunition, as well as several
bags of marijuana, marijuana cigarettes, rolling papers, and
digital scales. Several .25 caliber shell casings were found in the
motel parking lot where the shooting occurred.
On the day of the shooting, Heather and Beard positively
identified Gilliam from a photo array. Later that week,
Jeremiah, who was Gilliam’s friend, observed Gilliam driving a
red Pontiac Grand Prix. On February 14, 2011, the State
charged Gilliam with the following offenses:
Count I—Attempted Murder, a class A felony
Count II—Attempted Murder, a class A felony
Count III—Attempted Aggravated Battery, a class B felony
Count IV—Attempted Aggravated Battery, a class B felony
Count V—Attempted Battery, a class C felony
Count VI—Attempted Battery, a class C felony
Count VII—Criminal Recklessness, a class C felony
Count VIII—Carrying a Handgun Without a License, a class A
misdemeanor
Count IX—Pointing a Firearm, a class D felony
Count X—Pointing a Firearm, a class D felony
Count XI—Dealing in Marijuana, a class D felony
Count XII—Possession of Marijuana, a class D felony,
Count XIII—Maintaining a Common Nuisance, a class D felony
Count XIV—Serious Violent Felon in Possession of a Firearm, a
class B felony
On December 29, 2011, the State filed a notice under Indiana
Evidence Rule 404(b), indicating that the State intended to offer
evidence of the previous incident in December 2010 involving
Gilliam’s threat to kill Heather with a handgun.
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Following a hearing on December 30, 2011, the trial court ruled
that evidence of the earlier incident would be admissible because
it was relevant to show motive, intent, identity, and absence of
mistake and accident. The trial court also noted that it would
give a limiting instruction to the jury.
On April 9, 2012, Beard spoke with Officer Michael Barthelemy
and again identified Gilliam as the shooter. Beard told Officer
Barthelemy that Gilliam was approximately five feet away when
the shooting occurred.
Gilliam’s jury trial commenced on April 16, 2012. At trial,
Heather’s account of the events changed in several respects. For
instance, Heather had previously told police that Gilliam had
been dealing in marijuana. However, at trial, she claimed that
she did not remember making that statement. When asked about
the fact that Gilliam had threatened to kill her, Heather claimed
that she “guessed” that was accurate. Similarly, although
Heather had previously stated that she was afraid of Gilliam
when he threatened to kill her, she claimed at trial that she was
not really scared. Finally, although Heather had previously
reported to the police that she had seen Gilliam after the first
gunshot, she claimed at trial that she assumed it was him because
she had seen the red car.
Laura Berry-Bermann, the Executive Director for the Indiana
Coalition Against Domestic Violence, also testified at trial.
Berry-Bermann testified that it is not unusual for a woman in
circumstances similar to those experienced by Heather to
subsequently recant or modify a prior identification of the person
who committed the charged offense. Berry-Bermann stated that
there are many possible explanations for this phenomenon,
including a fear of retaliation and future violence, fear of the loss
of income and support for a child that they may share in
common, and loyalty to the father of their child.
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Following the presentation of evidence, Gilliam was found guilty
as charged on all counts. The trial court conducted a bench trial
on the serious violent felon charge, and Gilliam was also found
guilty on that count.
At the sentencing hearing, the trial court entered judgments of
conviction on Counts I, II, XI, XIII and XIV. Gilliam was
sentenced to an aggregate term of sixty-three years of
incarceration[.]
Id. at *1-3 (citations omitted).
[3] Gilliam raised three issues on direct appeal: (1) whether trial court erred in
admitting evidence of a prior act of violence against one of the victims in
violation of Indiana Evidence Rule 404(b); (2) whether the evidence was
sufficient to support the convictions because the victims did not unequivocally
identify him as the shooter; and (3) whether his aggregate sixty-three-year
sentence was inappropriate when considering the nature of the offenses and his
character. Id. at *1. A panel of this court affirmed in all respects. Id. at *6.
[4] Gilliam sought post-conviction relief alleging ineffective assistance of trial
counsel. Following an evidentiary hearing in which post-conviction counsel
declined to call Gilliam’s trial counsel to testify as a witness, the post-conviction
court issued findings of fact and conclusions of law denying his petition on June
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23, 2016.1 Thereafter, Gilliam timely filed a motion to correct error. Following
a hearing, the post-conviction court denied Gilliam’s motion to correct error on
May 26, 2017. Gilliam now appeals.
Discussion and Decision
I. Standard of Review
[5] Post-conviction proceedings are not an opportunity for a super-appeal; rather,
they create a narrow remedy for subsequent collateral challenges to convictions
that must be based on grounds enumerated in the post-conviction rules.
Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839
(2002). A claim of ineffective assistance of counsel is properly presented in a
post-conviction proceeding if the claim is not presented on direct appeal. Id.
Post-conviction proceedings are civil in nature and a petitioner must therefore
establish his claims by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5).
[6] On appeal from the denial of post-conviction relief, a petitioner faces a
“rigorous standard of review.” Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).
In reviewing the judgment of a post-conviction court, we do not reweigh the
1
We commend the post-conviction court for the clarity and thoroughness of its factual findings which have
aided in our review. However, due to an error with the electronic noticing system, the parties were not
notified of the post-conviction court’s decision until February 3, 2017. Therefore, the post-conviction court
directed the clerk to reissue the court’s prior decision and provided that any motion to correct error or notice
of appeal would be due within thirty days.
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evidence or reassess witness credibility and we consider only the evidence and
reasonable inferences supporting the judgment. Hall v. State, 849 N.E.2d 466,
468-69 (Ind. 2006). We will affirm the post-conviction court’s denial of post-
conviction relief unless the evidence leads “unerringly and unmistakably to a
decision opposite that reached by the post-conviction court.” McCary v. State,
761 N.E.2d 389, 391 (Ind. 2002).
[7] Furthermore, we emphasize that pro se litigants without legal training are held
to the same legal standards as licensed attorneys. Basic v. Amouri, 58 N.E.3d
980, 983 (Ind. Ct. App. 2016). Pro se litigants must adhere to the rules of
procedure and must be prepared to accept the consequences of their failure to
do so, including waiver for failure to present cogent argument on appeal. Id. at
983-84. An appellate brief should be prepared so that each judge, considering
the brief alone and independent of the transcript, can intelligently consider each
question presented. Pluard ex rel. Pluard v. Patients Comp. Fund, 705 N.E.2d
1035, 1038 (Ind. Ct. App. 1999), trans. denied. We “will not search the record to
find a basis for a party’s argument” nor will we “search the authorities cited by
a party in order to find legal support for its position.” Thomas v. State, 965
N.E.2d 70, 77 n.2 (Ind. Ct. App. 2012), trans. denied. We must not become an
“advocate for a party, or address arguments that are inappropriate or too poorly
developed or expressed to be understood.” Basic, 58 N.E.3d at 984.
[8] In the course of his fourteen-page Brief of Appellant, Gilliam raises numerous
issues for our review, only two of which are formally framed as questions
presented. Almost all of these issues, however, are “too poorly developed or
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expressed to be understood.” Id. Although we endeavor to discuss several
issues despite their waiver, we deem any and all remaining issues not discussed
herein to be waived. Id. at 983-84.
II. Ineffective Assistance of Trial Counsel
[9] Gilliam first claims the trial court erred in denying his petition for post-
conviction relief on his claim that he received ineffective assistance of trial
counsel. We disagree.
[10] We review claims of ineffective assistance of trial counsel under the two-prong
test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a
claim of ineffective assistance of counsel, the petitioner must show his trial
counsel’s performance was deficient and the lack of reasonable representation
prejudiced him. Id. at 687. To satisfy the first prong, the petitioner must show
counsel’s representation fell below an objective standard of reasonableness and
counsel committed errors so serious petitioner did not have the “counsel”
guaranteed by the Sixth Amendment of the United States Constitution. Garrett
v. State, 992 N.E.2d 710, 718-19 (Ind. 2013). To satisfy the second prong, the
petitioner must show a reasonable probability that, but for counsel’s errors, the
result of the proceeding would have been different. Id. at 719. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. These two prongs are separate and independent
inquiries. Manzano v. State, 12 N.E.3d 321, 326 (Ind. Ct. App. 2014), trans.
denied, cert. denied, 135 S. Ct. 2376 (2015). Therefore, “if it is easier to dispose of
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an ineffectiveness claim on one of the grounds instead of the other, that course
should be followed.” Talley v. State, 736 N.E.2d 766, 769 (Ind. Ct. App. 2000).
[11] Notably, we recognize a strong presumption counsel rendered adequate legal
assistance and afford trial counsel “considerable discretion in choosing strategy
and tactics, and we will accord those decisions deference.” Timberlake, 753
N.E.2d at 603. Therefore, in order to overcome this strong presumption, a
petitioner must offer “strong and convincing evidence” to the contrary. Smith v.
State, 822 N.E.2d 193, 202 (Ind. Ct. App. 2005), trans. denied.
A. Laura Bermann’s Testimony
[12] Gilliam alleges his trial counsel was ineffective for failing to object to Laura
Bermann’s testimony on two different bases. In order to prove ineffective
assistance of counsel due to the failure to object, Gilliam must prove that an
objection would have been sustained if made and that he was prejudiced by the
failure. Timberlake v. State, 690 N.E.2d 243, 259 (Ind. 1997), cert. denied, 525
U.S. 1073 (1999).
[13] The post-conviction court found:
[Heather] was asked at trial about the threat Gilliam made to her
a month prior where Gilliam pulled a gun on her, threatened to
kill her, and [Heather] texted her brother. [Heather] claimed she
did not recall why Gilliam pulled a gun on her or what Gilliam
said to her at the time. The State of Indiana called Laura
Bermann, Executive Director of Indiana Coalition Against
Domestic Violence to testify. The State posed a hypothetical
question to Ms. Bermann which consisted of facts similar to
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[Heather’s] situation with Gilliam and asked whether, based
upon her training and experience, it would be unusual for a
victim to later recant or take back what she said regarding the
identification of the person the night of the shooting. Gilliam’s
trial counsel initially objected to the hypothetical because it failed
to include all relevant factors of the relationship. The State re-
worded the hypothetical question to include additional facts.
Ms. Bermann then stated her opinion, without objection, that it
would not be unusual for a woman who had gone through such
an experience to later recant or take back what she said regarding
the identification of the person the night of the shooting. [Trial
Transcript at 227-30]. She explained there are several barriers for
victims of domestic violence to break away from a relationship
including: fear of retaliation; loss of income and support; loyalty;
lack of independence; and belief a victim can change an
individual’s behavior.
Appellant’s Appendix, Volume II at 18.
[14] First, Gilliam claims,
A proper foundation was not laid for Ms. Bermann’s testimony
pursuant to Indiana Rules of Evidence 403. Specifically, there
was no evidence presented to demonstrate that [Heather] had
previously been battered by Mr. Gilliam; as a result, her
testimony was not probative to any issue in the case. However,
Gilliam argues that Ms. Bermann’s testimony was highly
prejudicial to Gilliam because the inference is that [Heather] was
battered by Mr. Gilliam, which caused her to recant. There was
no evidence presented to support Gilliam battering [Heather].
Brief of Appellant at 12 (citation omitted).
[15] Gilliam’s argument, however, is left unsupported by cogent reasoning or
adequate citation to authority. “Indiana Appellate Rule 46(A)(8) provides that
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the argument section of the appellant’s brief must ‘contain the contentions of
the appellant on the issues presented, supported by cogent reasoning,’ along
with citations to the authorities, statutes, and parts of the record relied upon,
and a clear showing of how the issues and contentions in support thereof relate
to the particular facts under review.” D.H. by A.M.J. v. Whipple, 103 N.E.3d
1119, 1126 (Ind. Ct. App. 2018). Gilliam has therefore waived this issue for our
review. Id.
[16] Waiver notwithstanding, the hypothetical posed to Bermann was based on the
fact that Gilliam had previously threatened Heather with a gun—not that
Heather had previously been battered—and the State had presented evidence to
support this fact. See Trial Tr. at 147. In any event, the record reveals trial
counsel was prepared for the State’s line of questioning and had researched
caselaw on the issue. Indeed, after the State posed the hypothetical, trial
counsel requested a sidebar conference and argued the hypothetical had omitted
key facts. The trial court sustained trial counsel’s objection and the State
reframed the hypothetical accordingly. Therefore, to the extent we can discern
Gilliam’s specific claim, he has failed to demonstrate deficient performance
regarding this objection.
[17] Next, Gilliam claims his trial counsel failed to object to Bermann’s testimony as
inappropriate vouching testimony in violation of Indiana Evidence Rule 704(b).
Rule 704(b) states: “Witnesses may not testify to opinions concerning intent,
guilt, or innocence in a criminal case; the truth or falsity of allegations; whether
a witness has testified truthfully; or legal conclusions.” However, expert
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testimony explaining the behavior of domestic violence victims which is not
based upon personal knowledge does not constitute impermissible vouching.
See Otte v. State, 967 N.E.2d 540, 548 (Ind. Ct. App. 2012), trans. denied; Iqbal v.
State, 805 N.E.2d 401, 409-10 (Ind. Ct. App. 2004).
[18] Here, it is uncontested that Bermann did not have personal knowledge of the
case and she neither counseled nor met with Heather prior to her testimony.
Trial Tr. at 222. Bermann expressed no opinion as to the truth of Heather’s
statements and offered no testimony regarding those statements. Therefore,
Bermann’s testimony was admissible pursuant to the well-established domestic
violence exception to Rule 704(b).
[19] Despite this, Gilliam argues Bermann’s testimony violated this court’s holding
in Odom v. State, 711 N.E.2d 71 (Ind. Ct. App. 1999), trans. denied. Specifically,
Gilliam argues:
Ms. Bermann’s testimony also violated this court’s holding in
[Odom] v. State, the State of Indiana used an expert witness to
explain why a victim might recant. While the expert in [Odom]
did not specifically mention battered woman syndrome (herein
after “BWS”), the Indiana Court of Appeals ultimately
determined that “because the expert’s testimony is similar to BWS
testimony, we will determine the admissibility of such testimony as the
admissibility of BWS, a woman must have experienced at least two
violent incidents and thereafter remained in the relationship.” [Citing
Odom, 711 N.E.2d at 72 n.2].
Br. of Appellant at 12 (citation omitted; emphasis added). Gilliam presents the
emphasized language as a direct quote from Odom—it is not. Instead, Gilliam
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combines language from two separate locations in the opinion and reorganizes
them to support his argument that for Bermann’s testimony to have been
admissible, the record must have established Heather suffered from at least two
prior violent incidents. Whether an intentional misrepresentation or the result
of honest confusion, Gilliam’s statement of the law is incorrect. 2
[20] In Odom, the court cited People v. Christel, 537 N.W.2d 194, 200 (Mich. 1995),
for the proposition that “[t]o be considered a battered woman, with regard to
BWS, a woman must have experienced at least two violent incidents and
thereafter remained in the relationship[,]” and then concluded, “we will
determine the admissibility of [the expert’s] testimony as the admissibility of
BWS and other pattern, profile and syndrome evidence are determined.”
Odom, 711 N.E.2d at 72 n.2. However, the court’s comparison of domestic
violence testimony to BWS was not, as Gilliam contends, to prescribe the
factual basis required to present domestic violence testimony—i.e., that a
“woman must have experienced at least two violent incidents and thereafter
remained in the relationship[,]”—but rather to explain domestic violence
testimony is admissible under Rule 704(b) similar to “other pattern, profile and
syndrome evidence[.]” Id. Indeed, it is for this reason Odom held the domestic
violence testimony, almost identical to that presented here, was admissible
under Rule 704(b):
2
We reemphasize that pro se litigants are held to the same legal standards as licensed attorneys. Basic, 58
N.E.3d at 983.
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. . . [the expert] testified only that it would not be unusual for a
woman, who had experienced a violent incident such as that
charged, to recant a prior allegation regarding that incident and
the reasons she might have done so. Further, there is no
evidence that [the victim] had experienced a prior incident of
abuse while she was in the relationship with [the defendant].
Id.
[21] Because Bermann’s testimony was admissible under Rule 704(b), Gilliam has
failed to demonstrate his trial counsel provided deficient performance for not
objecting thereto.
B. Testimony Regarding Marijuana
[22] Gilliam next argues he received ineffective assistance in trial counsel’s failure to
object to Heather’s testimony regarding Gilliam’s prior use—and potential
dealing—of marijuana. On this issue, the post-conviction court found:
At trial, the State asked [Heather]: “When you were living with
the defendant was there any form of illegal drug use that went
on?” She responded that “occasionally we would smoke pot
together.” The State also asked her “were you aware that
defendant was dealing marijuana as well?” She responded “No.”
Trial counsel did not object to this line of questioning. The State
then confronted [Heather] with a prior statement she made to
police where she was asked: “If he’s dealing marijuana then I
need you to tell me he’s dealing the marijuana? Was he?” The
State then asked [Heather] “And you said ‘yeah.’ Is that
accurate?” [Heather] responded “I don’t remember.”
Appellant’s App., Vol. II at 20.
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[23] Gilliam’s argument on this point is entirely devoid of cogent reasoning or
citation to authority. In fact, Gilliam does not so much as specify which “rule
of evidence” his trial counsel allowed the State to violate without objection. Br.
of Appellant at 13. As such, we conclude Gilliam has waived this issue for our
review. Whipple, 103 N.E.3d at 1126.
[24] Waiver notwithstanding, we agree with the post-conviction court’s conclusion:
. . . Gilliam was charged with possession of marijuana and
dealing in marijuana that occurred on or about January 15, 2011.
He was also charged with maintaining a common nuisance that
occurred on or about January, 2011. [Heather] lived with
Gilliam up to one week prior to the attack and the discovery by
police of marijuana, scales, rolling papers, etc. in Gilliam’s
home. [Heather]’s testimony did not address prior bad acts.
Rather, it was evidence relating to the current charges against
Gilliam. As such, it was relevant to the case and not subject to
objection. Therefore, the court concludes that trial counsel’s
failure to object to this line of questioning was not ineffective.
Appellant’s App., Vol. II at 20-21.
[25] Gilliam then argues that his trial counsel “failed to require the State to lay a
proper foundation for the attempt to impeach the State’s own witness[.]” Br. of
Appellant at 13. Again, we find this argument waived for failure to comply
with Indiana Appellate Rule 46(A)(8). But, even if Gilliam was able to
establish trial counsel’s performance was deficient in this regard, which he
makes no effort to do, he would still be unable to demonstrate prejudice. As the
post-conviction court concluded, “the State would have eventually been
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allowed to admit the details of [Heather’s] statement as a prior inconsistent
statement once [Heather] responded she did not recall it.” Appellant’s App.,
Vol. II at 21. Therefore, absent waiver, Gilliam would still fail to demonstrate
resulting prejudice.
C. Remaining Claims
[26] Gilliam raises several additional claims, arguing “[t]rial counsel was ineffective
for failing to object to the mischaracterized facts, unsupported testimony and
testifying regard [sic] documents not admitted.” Br. of Appellant at 13. We
conclude all of these remaining claims—save one—are waived for failure to
comply with Indiana Appellate Rule 46(A)(8).
[27] The only claim supported by citation to authority is Gilliam’s allegation that his
trial counsel was ineffective in failing to object to Lieutenant Hayworth’s
testimony that Heather had made a statement to him regarding Gilliam’s prior
marijuana dealing. Specifically, Gilliam argues that because Heather “had
already been impeached by her previous statement, . . . Lieutenant Hayworth’s
testimony was cumulative because the statement was no longer inconsistent as
[Heather] had already admitted to it.” Br. of Appellant at 14. Gilliam contends
his trial counsel should have objected to the testimony and requested a
corresponding limiting instruction.
[28] Contrary to Gilliam’s contention, however, Heather did not confirm her
statement when confronted by her prior inconsistent statement; rather, Heather
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stated “I don’t remember.” Trial Tr. at 148; see supra ¶ 22. The trial court
concluded:
Indiana Rules of Evidence provide that any party, including the
party that called the witness, may attack the witness’s credibility.
[Evid. R. 607]. The Rules further provide that extrinsic evidence
of a witness’s prior inconsistent statement is admissible when a
witness is given the opportunity to deny the statement. [Evid. R.
613(b)].
Here, [Heather] did not admit to making the statement but only
stated that she did not remember making the statement. Per the
Rules of Evidence, the State was allowed to bring forth extrinsic
evidence through Lt. Hayworth that [Heather] indeed admitted
that Gilliam dealt in marijuana as a prior inconsistent statement.
Therefore, any objection trial counsel could have made to this
testimony would not have been sustained and Gilliam cannot
show how he was prejudiced by his counsel’s failure to object.
Appellant’s App., Vol. II at 28.
[29] On appeal, Gilliam simply reasserts his argument from his petition for post-
conviction relief. Therefore, Gilliam has failed to demonstrate the evidence
leads “unerringly and unmistakably to a decision opposite that reached by the
post-conviction court[,]” and we must affirm the post-conviction court’s
judgment. McCary, 761 N.E.2d at 391.
III. Ineffective Assistance of Post-Conviction Counsel
[30] Finally, Gilliam argues his post-conviction counsel rendered ineffective
assistance by failing to “subpoena and/or secure Gilliam’s trial counsel’s
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testimony during the PCR-Hearing.” Br. of Appellant at 10. Once more, we
disagree.
[31] There is no federal or state constitutional right to counsel in post-conviction
proceedings. Hill v. State, 960 N.E.2d 141, 145 (Ind. 2012).
We therefore apply a lesser standard responsive more to the due
course of law or due process of law principles which are at the
heart of the civil post-conviction remedy. We adopt the standard
that if counsel in fact appeared and represented the petitioner in a
procedurally fair setting which resulted in a judgment of the
court, it is not necessary to judge his performance by the rigorous
standard set forth in [Strickland].
Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989).
[32] Since Baum, our supreme court has explained that post-conviction counsel must
be more than a “warm body,” however. This standard occasionally requires a
reviewing court to look to the actual representation of post-conviction counsel
to determine whether “[c]ounsel, in essence, abandoned [their] client” by failing
to present any evidence in support of their client’s claim. Waters v. State, 574
N.E.2d 911, 911-12 (Ind. 1991) (holding post-conviction counsel rendered
ineffective assistance where the post-conviction court ordered the case
submitted on affidavits and the petitioner submitted his own inadequate
affidavits without assistance from post-conviction counsel, thus “no actual legal
representation occurred”). In two subsequent cases, Bahm v. State, 789 N.E.2d
50, 61-62 (Ind. Ct. App. 2003), trans. denied, and Taylor v. State, 882 N.E.2d 777,
783-84 (Ind. Ct. App. 2008), we held that the petitioner received ineffective
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assistance of post-conviction counsel where counsel failed to submit any
evidence, particularly the trial transcript, in support of the petitioner’s claim of
ineffective assistance of trial counsel.
[33] Here, the record demonstrates that post-conviction counsel appeared and
represented Gilliam, which resulted in a judgment of the post-conviction court
now under review. Post-conviction counsel successfully admitted the record
from Gilliam’s direct appeal and relied upon the trial transcript as evidence to
support the claims he raised in Gilliam’s amended petition for post-conviction
relief. Pursuant to Baum and its progeny, therefore, Gilliam received a
procedurally fair post-conviction proceeding.
[34] To the extent Gilliam argues his post-conviction counsel was ineffective for
failing to present the testimony of his trial counsel, we view this argument as a
claim of deficient performance by post-conviction counsel. However, as
explained in Baum, deficient performance by post-conviction counsel is not a
cognizable claim under the Sixth Amendment. Matheney v. State, 834 N.E.2d
658, 663 (Ind. 2005). Put simply, the fact that post-conviction counsel chose to
rely solely on the trial transcript to support his arguments without obtaining
trial counsel’s testimony is not “abandonment” and did not deprive Gilliam of a
procedurally fair post-conviction proceeding. Id.
Conclusion
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[35] The post-conviction court did not err in concluding Gilliam is not entitled to
relief on his claim that he received ineffective assistance of trial counsel and
Gilliam similarly failed to demonstrate that he received ineffective assistance of
post-conviction counsel. We therefore affirm the post-conviction court.
[36] Affirmed.
Baker, J., and May, J., concur.
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