Randy G. Cobb v. State of Indiana ( 2012 )

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
FILED
Sep 26 2012, 9:04 am
establishing the defense of res judicata,
collateral estoppel, or the law of the CLERK
case. of the supreme court,
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ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER
Public Defender of Indiana Attorney General of Indiana
JONATHAN O. CHENOWETH JAMES B. MARTIN
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RANDY G. COBB, )
)
Appellant-Petitioner, )
)
vs. ) No. 20A04-1203-PC-117
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE ELKHART CIRCUIT COURT
The Honorable Terry C. Shewmaker, Judge
Cause No. 20C01-1012-PC-25
September 26, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
GARRARD, Senior Judge
Randy Cobb appeals the denial of his petition for post-conviction relief. His sole
contention is that he received ineffective assistance of counsel at trial because his
attorney failed to object to the court’s Final Instruction 19, which he contends contained
an impermissible Allen charge.1
Cobb appeals from a negative judgment, and, to the extent his appeal turns on
factual issues, he must convince this Court that the evidence as a whole leads unerringly
and unmistakably to a decision opposite that reached by the post-conviction court. See
Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001). Thus, we will disturb the decision
of the post-conviction court only if the evidence is without conflict and leads only to a
conclusion contrary to the result of the post-conviction court. Id. To establish his claim,
Cobb must show both that counsel’s performance fell below an objective standard of
reasonableness and that but for the error there was a reasonable probability the result of
the proceeding would have been different. See Johnson v. State, 832 N.E.2d 985, 996
(Ind. Ct. App. 2005), trans. denied.
The questioned portion of the instruction read as follows:
If you should fail to reach a decision, this case will be left open and
undecided. Like all cases it must be disposed of at some time. Another
trial would be a heavy burden on both sides.
There is no reason to believe that the case can be tried again any better or
more exhaustively than it has been. There is no reason to believe that more
evidence or clearer evidence would be produced on behalf of either side.
1
Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).
2
There is no reason to believe that the case would ever be submitted to
twelve people more intelligent, more impartial or more reasonable than
you. Any future jury must be selected in the same manner that you were.
Direct Appeal App. p. 141. In support of his argument, Cobb relies on Parish v. State,
838 N.E.2d 495 (Ind. Ct. App. 2005). In that case this Court found that identical
language in a final instruction, together with inadequate preparation of counsel,
constituted ineffective assistance of counsel. Id. at 503.2 We have long held, however,
that an attorney does not provide ineffective assistance for failing to anticipate a future
change in the law. Frasier v. State, 267 Ind. 24, 366 N.E.2d 1166, 1167 (1977); Moore v.
State, 872 N.E.2d 617, 623-24 (Ind. Ct. App. 2007), trans. denied; Shaffer v. State, 674
N.E.2d 1, 7 (Ind. Ct. App. 1996), trans. denied.
Here, Cobb was tried and convicted in June 2005. Parish was decided December
6, 2005, some six months later. At the time of Cobb’s trial, the controlling precedent was
stated in Broadus v. State, 487 N.E.2d 1298, 1303-04 (Ind. 1986). There, the Court
found that an instruction, closely similar to Final Instruction 19, that was given as a part
of the final instructions rather than after the jury had indicated a deadlock, was harmless
error. It follows, therefore, that the assistance of Cobb’s counsel did not fall below an
objective standard of reasonableness when counsel did not object to the instruction.3
Cobb’s claim of ineffective assistance fails.
Affirmed.
2
We express no opinion whether the instruction alone can constitute ineffective assistance.
3
We compliment Judge Shewmaker on the thoroughness of his findings.
3
BAKER, J., and MAY, J., concur.
4