Jerome Binkley v. State of Indiana , 2013 Ind. App. LEXIS 424 ( 2013 )

Sep 10 2013, 5:42 am
FOR PUBLICATION
APPELLANT, PRO SE: ATTORNEYS FOR APPELLEE:
JEROME BINKLEY GREGORY F. ZOELLER
Pendleton, Indiana Attorney General of Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JEROME BINKLEY, )
)
Appellant-Petitioner, )
)
vs. ) No. 84A05-1208-PC-441
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable Christopher A. Newton, Judge
Cause No. 84D04-0011-CF-1672
September 10, 2013
OPINION – FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Jerome Binkley (“Binkley”) appeals pro se from the post-conviction court’s order
denying his petition for post-conviction relief.
We reverse and remand.
ISSUE
Whether the post-conviction court erred by summarily denying Binkley’s petition
for post-conviction relief.
FACTS
The facts of Binkley’s crimes were set forth in the opinion by our Supreme
Court on direct appeal as follows: 1
The evidence at trial showed that in the early morning hours of August 31,
1991, Wayne Kemp was shot in the head while sitting in the front seat of
his car. After completing an autopsy, the coroner could not determine what
type of gun fired the fatal bullet. Furthermore, the police could not find the
fatal bullet. They did discover, however, a spent shell casing on the floor
of the car. Ballistics tests confirmed that the casing had housed a bullet
fired from a Taurus nine-millimeter pistol found in a trash can behind the
house of the appellant’s friend, Dennis Owens.
Linking the putative murder weapon to Binkley was an important element
of the State’s case. Though the pistol had been cleaned of fingerprints,
Owens and another witness, Bill Loveland, testified that it had been in
Binkley’s possession the night of Kemp’s murder. Police confirmed that
the pistol was one of several firearms stolen a week before the murder from
a Terre Haute sporting goods store. Binkley, Loveland, and Kemp were
suspects in that robbery. Quite a number of the Terre Haute weapons were
also recovered from Owens’ trash can. According to Owens, Binkley had
left a trash bag containing several guns, including the Taurus pistol, at his
(Owens’) house a few days before the murder. Owens took a fancy to the
pistol, and at some point gave Binkley forty dollars toward its purchase.
1
The Supreme Court set out the facts during their analysis of the sufficiency of the evidence argument.
2
The night before the murder, Owens and Binkley met with friends at
various Terre Haute night spots. Owens had loaded the pistol before
leaving home, and had it with him in his car. He still considered it to be
Binkley’s gun, and gave it to Binkley after he asked for it in the parking lot
across the street from Nolan’s Bar. At some point, Wayne Kemp’s car
pulled up to the group of revelers in the parking lot. Owens last saw
appellant that night walking toward Wayne Kemp’s car.
The next morning Binkley came to Owens’ house and presented him with a
cloth bundle containing the pistol, now covered with sand and dirt. Binkley
left, but returned later in the day after being questioned by the police. He
informed Owens that the police were looking for the guns stolen in Terre
Haute in connection with Kemp’s murder, and he said they needed to get
rid of them. Owens, who had cleaned the Taurus pistol prior to Binkley’s
return, concealed it with the other weapons at the bottom of a trash can in
the alley behind his house. A short while later Binkley was arrested at
Owens’ house for Kemp’s murder. Owens subsequently led detectives to
the stash of guns.
Loveland corroborated Owens’ account in important ways. He testified he
had been sleeping at Binkley’s apartment on the night in question, and he
was awakened at least twice before sunrise. On the first occasion, while
Binkley was still out on the town, Wayne Kemp came by looking for him.
Kemp left after smoking some cocaine, possibly heeding Loveland’s
suggestion to look for Binkley at Nolan’s. (It was outside Nolan’s where
Owens observed appellant approach Kemp’s car.)
Loveland was awakened again about 4 a.m. when Binkley returned to the
apartment. The two took to the streets on Loveland’s bicycle just as dawn
was beginning to break. They first attempted to call on Owens. When no
one responded to their knocking, Binkley produced a nine-millimeter pistol
and hid it in the barbecue grill behind Owens’ house (thus explaining the
gritty coating Owens described). They next attempted to purchase cocaine
at another location, without success, and finally proceeded at Binkley’s
direction to the alley where Kemp’s car sat with his body inside.
At the car, Binkley retrieved the keys from inside and opened the trunk.
Binkley told Loveland he had already taken five hundred dollars from
Kemp and was searching for “the rest of the money.”2 The trunk search
2
It seems that the day before his murder, Kemp had cashed his Indiana State University loan check. His
widow testified that even after paying various debts and other expenses, he still had five or six one-
hundred dollar bills on his person in the hours before his death. This cash was not recovered from the
murder scene.
3
proved unsuccessful, and Loveland and Binkley departed for a nearby crack
house. On each of two visits Binkley acquired a gram of cocaine. The
cocaine had a street value of a hundred dollars per gram. When arrested
several hours later, Binkley was carrying three one-hundred dollar bills and
a one-dollar bill.
The testimony by Owens and Loveland strongly suggested Binkley’s guilt,
of course, but there was also physical evidence linking appellant to the
murder. The clothes he was seen wearing the night of the murder turned up
covered in blood in a dumpster. Tests of the blood on Binkley’s sweatshirt
and blue jeans indicated that the blood could have come from the decedent,
but not from Binkley. There was also evidence that Binkley knew Kemp
was about to receive his loan check. According to Loveland, Kemp had
approached Binkley about purchasing some of cocaine once the loan check
cleared. Binkley told Loveland he intended to “gank” (that is, rob) Kemp
instead.
Binkley v. State, 654 N.E.2d 736, 737-38 (Ind. 1995).
After two mistrials, Binkley was convicted of murder and found to be an habitual
offender. Binkley was sentenced to sixty (60) years in prison for murder enhanced by
thirty (30) years for being an habitual offender.
Thereafter, Binkley filed a direct appeal from his convictions, arguing that the
evidence was insufficient to convict him of murder and that his ninety (90) year sentence
was manifestly unreasonable. As part of his sufficiency argument, Binkley specifically
challenged the credibility of Loveland’s testimony. The Supreme Court addressed his
sufficiency argument as follows:
Binkley’s lawyer struggled mightily to undermine Loveland’s testimony by
introducing several sworn statements in which Loveland told different
versions of the events on the night of Kemp’s murder. His brief on appeal
casts Loveland’s testimony as “inherently unbelievable, and unreliable.”
Whatever incentives Loveland may have had to perjure himself, we think a
jury could have reasonably concluded, based on the testimony of Loveland
and Owens and the attendant physical evidence, that Binkley had indeed
followed through with his stated intent to “gank” Kemp, with fatal
consequences.
4
Id. at 738-39. The Supreme Court affirmed both Binkley’s conviction and sentence. Id.
at 740.
In 2000 and 2003, Binkley filed petitions for post-conviction relief (“PCR”). He
eventually withdrew both petitions. On July 20, 2012, Binkley filed a pro se petition for
PCR, claiming that:
trial counsel was ineffective for failure to adequately preserve that the
knowing use of perjured testimony is fundamentally unfair; and a
conviction obtained by the use of such testimony will not be upheld- which
was stronger than the issue legally inapplicable for appellate review. This
violated petitioner’s Fifth, Sixth, and Fourteenth amendments to the United
States Constitution, and state law.
(State’s App. 2). The State filed an answer to Binkley’s petition on August 7, 2012.3 On
August 13, 2012, the post-conviction court summarily denied Binkley’s petition for PCR.
Binkley now appeals.
DECISION
Binkley appeals from the post-conviction court’s order denying post-conviction
relief without conducting an evidentiary hearing. Our standard of review in post-
conviction proceedings is well settled.
We observe that post-conviction proceedings do not grant a petitioner a
“super-appeal” but are limited to those issues available under the Indiana
Post-Conviction Rules. Post-conviction proceedings are civil in nature, and
petitioners bear the burden of proving their grounds for relief by a
preponderance of the evidence. Ind. Post-Conviction Rule 1(5). A
petitioner who appeals the denial of PCR faces a rigorous standard of
review, as the reviewing court may consider only the evidence and the
reasonable inferences supporting the judgment of the post-conviction court.
The appellate court must accept the post-conviction court’s findings of fact
and may reverse only if the findings are clearly erroneous. If a PCR
3
Neither party included a copy of the State’s answer in their appendices.
5
petitioner was denied relief, he or she must show that the evidence as a
whole leads unerringly and unmistakably to an opposite conclusion than
that reached by the post-conviction court.
Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal citations
omitted), trans. denied.
The only issue on appeal is whether the post-conviction court erred by summarily
denying Binkley’s petition for PCR that raised a claim of ineffective assistance of
counsel. The State argues that the post-conviction court did not err because the pleadings
conclusively established that he was not entitled to relief. In addition, the State argues
that Binkley’s allegation of ineffective assistance of counsel was essentially the same
issue addressed by our Supreme Court in his direct appeal. Binkley argues that his
ineffective assistance of counsel claim is different because it involves a claim that his
trial counsel did not adequately preserve the issue of whether the State’s primary witness
(Bill Loveland) committed perjury.
In addressing this issue, it is important to decide the appropriate standard of
review. Post-Conviction Rule 1, section 4 outlines two different ways a post-conviction
court may deny a petition without a hearing. A separate panel of this court has discussed
the differences as follows:
First, in subsection (f), the rule provides: “If the pleadings conclusively
show that petitioner is entitled to no relief, the court may deny the petition
without further proceedings.” Second, in subsection (g), the rule provides:
The court may grant a motion by either party for summary
disposition of the petition when it appears from the pleadings,
depositions, answers to interrogatories, admissions,
stipulations of fact, and any affidavits submitted, that there is
no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.
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Disposal of a petition under each of these two subsections leads to a
different standard of review on appeal.
When a court disposes of a petition under subsection (f), we
essentially review the lower court’s decision as we would a motion for
judgment on the pleadings. The court errs in disposing of a petition in this
manner unless ‘the pleadings conclusively show that petitioner is entitled to
no relief.’ If the petition alleges only errors of law, then the court may
determine without a hearing whether the petitioner is entitled to no relief on
those questions. However, if the facts pled raise an issue of possible merit,
then the petition should not be disposed of under section 4(f). ‘This is true
even though the petitioner has only a remote chance of establishing his
claim.’
On the other hand, when a court disposes of a petition under
subsection (g), we review the lower court’s decision as we would a motion
for summary judgment. We face the same issues that were before the post-
conviction court and follow the same process. A grant of summary
disposition is erroneous unless ‘there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.’ We must
resolve all doubts about facts, and the inferences to be drawn from the facts,
in the non-movant’s favor. The appellant has the burden of persuading us
that the post-conviction court erred.
* * * *
Under the plain language of subsection (g), a court may grant
summary disposition after ‘a motion by either party’ and after considering
the pleadings and other evidence submitted.’ The language of subsection
(f), on the other hand, permits a court to deny a petition based upon only
the pleadings and apparently without a motion by either party. . . .
Allen v. State, 791 N.E.2d 748, 752-753 (Ind. Ct. App. 2003) (internal citations omitted),
trans. denied.
Concerning the issue of ineffective assistance of trial counsel, we have held this
particular issue is fact sensitive. Kelley v. State, 952 N.E.2d 297, 300 (Ind. Ct. App.
2011). In fact, some factual determinations must be made. Id. “Consequently, when a
7
petitioner alleges ineffective assistance of counsel, and the facts pled raise an issue of
possible merit, the petition should not be summarily denied. Id. at 300 (emphasis added).
In this case, it is clear from the record that the post-conviction court made its
decision based solely on the pleadings under subsection (f). Neither party had submitted
any affidavits, referred to other evidence, or filed a motion for summary disposition,
which would have triggered subsection (g). As a result, we must determine whether the
pleadings conclusively show that Binkley is not entitled to relief.
In his petition, Binkley inartfully argues that his trial counsel was ineffective for
failing “to adequately preserve that the knowing use of [Loveland’s] perjured testimony”
was fundamentally unfair. (Binkley’s App. 15). The State argues that the post-
conviction court likely disregarded this argument because it was addressed by our
Supreme Court on direct appeal. While our Supreme Court mentioned Loveland’s
perjured testimony, it did not address the testimony in terms of whether the manner in
which Binkley’s trial counsel sought to prevent or counteract the testimony amounted to
ineffective assistance of counsel. In other words, whether the performance of Binkley’s
trial counsel (1) fell below an objective standard of reasonableness; and (2) but for
counsel’s errors, the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Ineffective
assistance is a separate and distinct inquiry from whether there is sufficient evidence to
support a conviction. This is partly why an ineffective assistance claim is available for
post-conviction relief, even when the issue is available and not raised on direct appeal.
Landis v. State, 749 N.E.2d 1130 (Ind. 2001).
8
Because Binkley has pled sufficient facts to raise an issue of possible merit, we
find that the trial court erred in summarily denying Binkley’s PCR petition. As a result,
we remand for further proceedings on Binkley’s ineffective assistance of counsel claim
and direct the post-conviction court to issue findings of fact and conclusions of law
consistent with Post-Conviction Rule 1(6).
Reversed and remanded.
KIRSCH, J., and VAIDIK, J., concur.
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