Steven Kamp v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 06 2012, 8:53 am
court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
court of appeals and
collateral estoppel, or the law of the case. tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
CAROLINE B. BRIGGS GREGORY F. ZOELLER
Lafayette, Indiana Attorney General of Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
STEVEN KAMP, )
)
Appellant-Petitioner, )
)
vs. ) No. 66A05-1109-PC-485
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE PULASKI SUPERIOR COURT
The Honorable Patrick B. Blankenship, Judge
Cause No. 66D01-0505-FC-2
December 6, 2012
OPINION ON REHEARING
BAKER, Judge
This case comes before us on rehearing. In the original appeal, appellant-
petitioner Steven Kamp appealed the denial of his petition for post-conviction relief,
which claimed that his defense counsel’s illnesses and disabilities amounted to
ineffective assistance of counsel. Kamp v. State, No. 66A05-1109-PC-485 (Ind. Ct. App.
June 28, 2012). Kamp alleged, among other things, that his trial counsel, Charlie
Scruggs, who represented him during a jury trial for the offense of child molesting, a
class C felony, was suffering from tinnitus, headaches, and other illnesses that he
sustained as a result of a bombing of the Howard County Courthouse in the 1980s. Kamp
contended that those injuries prevented Scruggs from providing him with effective
representation.
Kamp was found guilty as charged, and in his initial appeal to this court, he
challenged the sufficiency of the evidence and the propriety of the eight-year sentence
that was imposed. We affirmed in all respects. Kamp v. State, No. 66A05-0604-CR-202
(Ind. Ct. App. Mar. 20, 2007). Thereafter, we affirmed the denial of Kamp’s request for
post-conviction relief concluding, among other things, that “Scruggs’ actions were
reasonable under prevailing professional norms.” Slip op. at 22.
Kamp now petitions for rehearing, again claiming that his petition for post-
conviction relief should have been granted because Scruggs’s “deterioration brought on
by his illnesses and handicaps” resulted in ineffective assistance of counsel. Appellant’s
Br. on Pet. for Reh. p. 2.
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We grant rehearing for the limited purpose of clarifying certain factual assertions
that were made in our original opinion. More particularly, the record reflects that it was
attorney Stephanie Doran—rather than Scruggs’s paralegal, Stephanie Blackman—who
was familiar with Scruggs’s handwriting, reviewed the DCS’s report, testified that
Scruggs’s discovery measures were “uncharacteristic,” and testified about Scruggs’s
tinnitus, illness, and inability to concentrate at times. Appellant’s App. p. 158-60, 163.
However, even though it was Doran who offered the evidence and testimony set
forth above, we nonetheless reject Kamp’s contention that we improperly applied the
ineffective assistance of counsel standard in accordance with Strickland v. Washington,
466 U.S. 668 (1984). In other words, we reaffirm our original holding that Kamp has
failed to show that Scruggs’s alleged failings would have had a reasonable probability of
affecting the outcome of this case.
Finally, Kamp requests that we consider whether a violation occurred because the
State allegedly failed to disclose material evidence that was favorable to him and directs
us to State v. Hollin, 970 N.E.2d 147 (Ind. 2012). However, Kamp did not present the
issue of whether the State should have turned over certain “Brady1 material” to him in his
petition for post-conviction relief. As a result, the issue is waived. See Walker v. State,
843 N.E.2d 50, 57 (Ind. Ct. App. 2006) (observing that issues not raised in a petition for
post-conviction relief may not be raised for the first time on post-conviction appeal); see
also Hannoy v. State, 793 N.E.2d 1109, 1111 (Ind. Ct. App. 2003) (stating that an issue
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Brady v. Maryland, 373 U.S. 83 (1963).
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not raised in the original briefs on appeal cannot be raised for the first time in a petition
for rehearing).
In sum, subject to the corrections set forth above, we reaffirm our original opinion
in all respects.
BAILEY, J., and DARDEN, S.J., concur.
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