Kelly E. Culver v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
Apr 25 2016, 5:40 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as CLERK
Indiana Supreme Court
precedent or cited before any court except for the Court of Appeals
and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Kelly E. Culver Gregory F. Zoeller
Pendleton, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kelly E. Culver, April 25, 2016
Appellant-Petitioner, Court of Appeals Case No.
84A01-1511-PC-1964
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable David R. Bolk,
Judge
Appellee-Respondent.
Trial Court Cause No. 84D03-0104-
CF-903
Bradford, Judge.
Case Summary
[1] Appellant-Petitioner Kelly Culver was convicted in 1997 of Murder, a felony,
and sentenced to sixty-five years of incarceration. In 2000, the Indiana
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Supreme Court affirmed Culver’s conviction and sentence. In 2001, Culver
filed a pro se petition for post-conviction relief (“PCR”). In 2005, the post-
conviction court granted Culver’s motion for indefinite extension of time. In
2014, Culver moved to amend his PCR petition and set the matter for an
evidentiary hearing. The post-conviction court granted Culver’s motion to
amend his PCR petition but declined to set the matter for a hearing, ultimately
directing that all evidence be submitted in affidavit or other form as
contemplated by Rule 1, section 5 of the Indiana Rules of Procedure for Post-
Conviction Remedies. Culver sent questionnaires to his trial and appellate
counsels, but when neither responded Culver sought no help from the post-
conviction court in securing the evidence. In November of 2015, the post-
conviction court denied Culver’s PCR petition in full. Culver contends that the
post-conviction court abused its discretion in failing to hold an evidentiary
hearing, the post-conviction court erred in finding that the defense of laches
applied in this case, and he received ineffective assistance of appellate counsel.
Because we conclude that the post-conviction court did not abuse its discretion
in denying Culver’s request for a hearing or in concluding that he failed to
establish that he received ineffective assistance of appellate counsel, we affirm.
Facts and Procedural History
[2] The background for this appeal was outlined by the Indiana Supreme Court in
its disposition of Culver’s direct appeal:
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The facts most favorable to the verdict indicate that in the early
morning hours of May 11, 1997, Defendant left a neighbor’s
house intoxicated and was followed home by his girlfriend, Lori
McCullough. Defendant began arguing with McCullough.
When these arguments escalated, McCullough called her brother,
Brad Peters, to come pick up her and her children. Defendant
threatened to fight Peters and then rummaged through a kitchen
drawer where he had previously stored an ice pick.
As they left the apartment arguing, other residents had gathered
in the hallway, including Charles Horton who was standing in
his doorway. According to one witness, Horton was preparing
for work which began at 5:00 a.m. By 4:20 a.m., Peters had
managed to pick up his sister and her children without further
incident.
Shortly after 5:00 a.m., while driving on Sanford Road just east
of State Road 63, Mark Barrett observed Horton’s car parked in
the middle of the road. Concerned that he would be unable to
bypass the car without hitting it, Barrett slowed down briefly and
then stopped his car. He observed Defendant bent over along the
side of the road as if he were searching for an item. Defendant
approached Barrett’s vehicle, then turned and walked away. At
this time, Defendant was wearing a black jacket. Later that
morning, Chris Newhart saw Defendant trying to hitchhike a few
hundred feet north of Sanford Road. Now Defendant was not
wearing a shirt or jacket despite the cold weather.
Around 6:00 a.m., at the intersection of State Road 63 and
Sanford Road, Defendant approached Stephen Gariepy’s truck as
Gariepy stopped at a stop sign. Defendant solicited Gariepy’s
help, telling him that he and a friend had been attacked, that he
believed his attackers killed his friend, and that he needed a ride
into Terre Haute to notify police. Because Defendant was
shirtless, Gariepy gave him a plaid shirt to wear. At
approximately 6:15 a.m., Defendant exited Gariepy’s truck at a
railroad crossing in Terre Haute within the proximity of
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McCullough’s residence. Defendant and Gariepy parted without
ever having notified the police of the alleged attack.
At 6:50 a.m., while asleep at her residence, McCullough was
awakened by a “nervous and scared” Defendant. Defendant,
who had been wearing black sweatpants and a black Adidas
jacket that morning, was now wearing black sweatpants and a
plaid shirt. He had mud all over his sweatpants and red stains on
his thermal boxer shorts. As Defendant requested, McCullough
gave him a shirt to wear. As he changed clothes, she saw him
remove a bundle of money from his sweatpants. Before leaving,
Defendant told McCullough that he had done something wrong,
that he was in trouble, and to tell people that he never owned a
black Adidas jacket.
At 9:30 a.m., Vigo County Police Officer Steve Barnhart
discovered Horton’s abandoned car on Sanford Road just east of
State Road 63. Officer Barnhart observed blood in the car and
on the road outside of the car. Looking in the nearby wooded
area, Officer Barnhart found Horton’s body. Horton had been
stabbed twenty-eight times with an ice-pick. Horton received a
final stab wound through his right eye that entered his brain.
Officer Barnhart discovered the body with the ice-pick still in
Horton’s eye.
Three days after discovering Horton’s body, police found
Defendant’s Adidas jacket near the intersection of Sanford Road
and State Road 63. After obtaining a search warrant for
Defendant’s apartment, officials uncovered a pair of black
sweatpants and thermal boxer shorts in the kitchen trash
container.
The State charged Defendant with Murder. The jury found
Defendant guilty as charged. The trial court sentenced Defendant
to 65 years of incarceration.
Culver v. State, 727 N.E.2d 1062, 1064-65 (Ind. 2000) (footnotes omitted).
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[3] The Indiana Supreme Court affirmed Culver’s conviction and sentence on
direct appeal. Id. at 1072. On March 30, 2001, Culver filed a pro se PCR
petition. On April 9, 2001, the State responded, denying Culver’s allegations
and asserting waiver, res judicata, and laches. On April 19, 2001, the Public
Defender of Indiana appeared on behalf of Culver, withdrawing on September
6, 2005. On September 19, 2005, the post-conviction court granted Culver’s
motion for an indefinite extension of time.
[4] On July 28, 2014, Culver moved to amend his PCR petition and to set the
matter for an evidentiary hearing. The post-conviction court granted Culver’s
motion to amend but declined to set the matter for a hearing. On February 20,
2015, the post-conviction court issued a scheduling order which gave Culver
thirty days in which to file and exchange with the State any evidence he wished
the post-conviction court to consider, directing that evidence be submitted in
affidavit or other form contemplated by Post-Conviction Rule 1, section 5. On
March 17, 2015, Culver moved for a continuance so that his trial and appellate
counsels could respond to written questionnaires. On May 7, 2015, Culver
moved to have the post-conviction court take judicial notice of its own record
and Culver’s affidavit in support of his PCR petition. Apparently, neither
Culver’s trial nor appellate counsels responded to his questionnaires.
[5] On November 2, 2015, the post-conviction court denied Culver’s PCR petition,
concluding, inter alia, that Culver had failed to establish that he received
ineffective assistance of appellate counsel. The post-conviction court concluded
that because neither trial nor appellate counsel provided testimony in the
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matter, the record contained no credible evidence from which to conclude that
either’s performance was deficient. Culver argues that the post-conviction court
abused its discretion in concluding that he failed to establish ineffective
assistance of appellate counsel, in concluding that laches applied to bar his
claims, and in denying his request for an evidentiary hearing.
Discussion and Decision
Standard of Review
[6] Our standard for reviewing the denial of a PCR petition is well-settled:
In reviewing the judgment of a post-conviction court, appellate
courts consider only the evidence and reasonable inferences
supporting its judgment. The post-conviction court is the sole
judge of the evidence and the credibility of the witnesses. To
prevail on appeal from denial of post-conviction relief, the
petitioner must show that the evidence as a whole leads
unerringly and unmistakably to a conclusion opposite to that
reached by the post-conviction court.… Only where the evidence
is without conflict and leads to but one conclusion, and the post-
conviction court has reached the opposite conclusion, will its
findings or conclusions be disturbed as being contrary to law.
Hall v. State, 849 N.E.2d 466, 468, 469 (Ind. 2006) (internal citations and
quotations omitted).
I. Denial of Evidentiary Hearing
[7] Pursuant to Post-Conviction Rule 1(9)(b), “[i]n the event petitioner elects to
proceed pro se, the court at its discretion may order the cause submitted upon
affidavit.” Culver’s argument is essentially that the post-conviction court’s
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denial of his request for an evidentiary hearing denied him the opportunity to
elicit testimony from his trial and appellate counsel. We cannot agree with the
premise that it was the post-conviction court’s denial of Culver’s request for a
hearing that prevented Culver from presenting his evidence. As previously
mentioned, neither Culver’s trial nor appellate counsel responded to Culver’s
questionnaires. Culver, however, sought no help from the post-conviction court
in enforcing his efforts to secure the evidence he sought. Although “[a]ll rules
and statutes applicable in civil proceedings including pre-trial and discovery are
available to the parties,” P.C. Rule 1(5), Culver availed himself of none of
them. It is well-settled that “[p]ro se litigants without legal training are held to
the same standard as trained counsel and are required to follow procedural
rules.” Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.
“This has consistently been the standard applied to pro se litigants, and the
courts of this State have never held that a trial court is required to guide pro se
litigants through the judicial system.” Id. The post-conviction court’s denial of
Culver’s request for an evidentiary hearing did not prevent Culver from
obtaining evidence from his trial and appellate counsel.1 Culver has failed to
establish an abuse of discretion in this regard.
1
Culver also seems to argue that the post-conviction court improperly disposed of his claims of ineffective
assistance of counsel summarily. While it is true that summary disposition of ineffective assistance of
counsel claims is improper when the facts pled raise an issue of possible merit, see, e.g., Clayton v. State, 673
N.E.2d 783, 786 (Ind. Ct. App. 1996), the post-conviction court did not summarily dispose of Culver’s claim.
The post-conviction court denied Culver’s PCR petition after receiving evidence. To the extent that Culver
relies on authority related to summary disposition, that authority is inapposite.
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II. Ineffective Assistance of Appellate Counsel
[8] We review claims of ineffective assistance of counsel based upon the principles
enunciated in Strickland v. Washington, 466 U.S. 668 (1984):
Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), a claim of ineffective assistance of counsel
requires a showing that: (1) counsel’s performance was deficient
by falling below an objective standard of reasonableness based on
prevailing professional norms; and (2) counsel’s performance
prejudiced the defendant so much that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 687, 694,
104 S. Ct. 2052; Lowery v. State, 640 N.E.2d 1031, 1041 (Ind.
1994). …. Failure to satisfy either prong will cause the claim to
fail. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999).
French v. State, 778 N.E.2d 816, 824 (Ind. 2002).
[9] Moreover, counsel is given wide discretion in determining strategy and tactics,
and therefore courts will accord these decisions deference. Timberlake v. State,
753 N.E.2d 591, 603 (Ind. 2001). “A strong presumption arises that counsel
rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Id. “Whether a lawyer performed
reasonably under the circumstances is determined by examining the whole of
the lawyer’s work on a case.” Oliver v. State, 843 N.E.2d 581, 591 (Ind. Ct.
App. 2006), trans. denied.
[10] We review claims of ineffective assistance of appellate counsel using the same
standard applicable to claims of trial counsel ineffectiveness. Ben-Yisrayl v.
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State, 729 N.E.2d 102, 106 (Ind. 2000). The petitioner must show that appellate
counsel was deficient in his performance and that the deficiency resulted in
prejudice. Id. Ineffective assistance claims at the appellate level of proceedings
generally fall into three basic categories: (1) denial of access to an appeal; (2)
waiver of issues; and (3) failure to present issues well. Bieghler v. State, 690
N.E.2d 188, 193-95 (Ind. 1997).
[11] Culver’s claims of ineffective assistance of appellate counsel fall into the second
or third categories: appellate counsel failed to (1) challenge statements by trial
counsel made during voir dire that Culver characterizes as conceding his guilt,
(2) challenge trial counsel’s alleged concession of his guilt by refusing voluntary
manslaughter instructions, (3) properly investigate his mental health
background, (4) secure an expert witness to testify regarding a voluntary
intoxication defense, and (5) seek rehearing to argue that the Indiana Supreme
Court applied the incorrect standard to evaluate Culver’s claim of ineffective
assistance of trial counsel.
[12] The post-conviction court concluded that Culver had failed to establish
deficient performance by his appellate counsel because Culver did not present
any evidence from his trial or appellate counsel. We conclude that this failure
to present any testimony from Culver’s trial or appellate counsel is dispositive.
In the end, we will not speculate on why the strategies or reasons raised by
Culver were not advance by his counsel. See Villalon v. State, 956 N.E.2d 697,
706 (Ind. Ct. App. 2011) (“At the hearing upon the motion to correct error, trial
counsel was not called to testify. As such, no record has been developed as to
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trial counsel’s strategy or reasons underlying his decision not to offer an alibi
defense. We decline to speculate.”); see also Whitener v. State, 696 N.E.2d 40, 42
(Ind. 1998) (“We will not lightly speculate as to what may or may not have
been an advantageous trial strategy as counsel should be given deference in
choosing a trial strategy which, at the time and under the circumstances, seems
best.”).
[13] Suffice it to say that none of Culver’s specific claims of deficient performance,
even if true, establish that he suffered any prejudice. As the Indiana Supreme
Court correctly determined, evidence of Culver’s guilt was overwhelming,
including testimony (1) from multiple witnesses placing Culver at the scene, (2)
that he told his girlfriend that he had done something bad and to forget that he
owned a black Adidas jacket, (3) that red stains on Culver’s clothing matched
the victim’s blood to an extremely high degree of certainty, (4) that the ice pick
removed from the victim’s right eye belonged to Culver, and (5) that Culver had
told two witnesses that he would use an ice pick if he were to get into another
fight and would stab his opponent in the eye with it. See Culver, 727 N.E.2d at
1069. Because Culver failed to establish either deficient performance or
prejudice, the post-conviction court did not abuse its discretion in denying
Culver’s claim of ineffective assistance of appellate counsel.2
2
Because we conclude that Culver’s claims are without merit, we need not address the post-conviction
court’s finding of laches.
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[14] The judgment of the post-conviction court is affirmed.
Bailey, J., and Altice, J., concur.
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