Zao G. Burrell v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jan 02 2020, 8:53 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas C. Allen Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Zao G. Burrell, January 2, 2020
Appellant-Petitioner, Court of Appeals Case No.
19A-PC-870
v. Appeal from the Steuben Superior
Court
State of Indiana, The Honorable William C. Fee,
Appellee-Respondent. Judge
Trial Court Cause No.
76D01-1708-PC-2
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-870 | January 2, 2020 Page 1 of 13
Case Summary
[1] Xao Burrell appeals the post-conviction court’s (“PC Court”) denial of his
petition for post-conviction relief (“PCR”). We reverse and remand.
Issue
[2] Burrell raises two issues on appeal; however, we find one issue dispositive,
which we restate as whether the PC Court erred in failing to hold a hearing on
Burrell’s petition for PCR.
Facts
[3] In 2013, Burrell was convicted of Count I, murder; Count II, felony murder;
Count III, attempted murder, a Class A felony; and Count IV, carrying a
handgun without a license, a Class C felony, after a dispute between Burrell and
another individual led to Burrell shooting and killing that individual after
manufacturing methamphetamine. Burrell filed a direct appeal to our Court,
arguing that his 105-year sentence was inappropriate in light of the nature of
offense and Burrell’s character. Our Court affirmed the trial court’s sentence.
See Burrell v. State, No. 76A03-1305-CR-165 (Ind. Ct. App. Mar. 6, 2014).
[4] On September 17, 2014, Burrell filed a petition for PCR, which was
subsequently dismissed, without prejudice, due to his inability to investigate.
On August 25, 2017, Burrell filed his second petition for PCR alleging that
Burrell received ineffective assistance of counsel in several areas, including, but
not limited to:
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[F]ailing to properly conduct the hearing on the motion for
change of venue, missing a deadline for disclosing alibi witnesses,
failing to adequately argue evidentiary objections, introducing
evidence of criminal activity on the part of Petitioner, failing to
properly prepare witnesses to testify, failing to prepare a closing
statement and/or giving a wholly inadequate closing statement,
failing to offer any evidence or argument at sentencing, and
failing to professionally conduct herself during trial.
Appellant’s App. Vol. II p. 43. Burrell was represented by counsel. The State
sought dismissal of Burrell’s petition pursuant to Indiana Post-Conviction Rule
1(3)(a), arguing that Burrell’s petition was merely “generalized and
conclusory.” Id. at 57. The PC Court denied the State’s motion.
[5] On September 22, 2017, Burrell filed an amended petition for PCR, adding
specific allegations of ineffective assistance of trial counsel as follows:
Motion for change of venue - rather than present evidence of
community-wide prejudice, trial counsel presented only the
idiosyncratic opinions of a handful of individuals. When she
attempted to introduce evidence from local media, she seemed
entirely unclear on the procedure for doing so, resulting in that
evidence not being admitted. Finally, it apparently did not occur
to trial counsel to obtain the evidence she needed, a
comprehensive canvasing of the local area, until after her motion
and a motion to reconsider had been denied. At this point, the
Court denied her the funds to conduct such a study, as the
request was far too late.
Alibi witness - this Court found that trial counsel attempted to
disclose an alibi witness well after the dates set forth in the
controlling scheduling order. This led trial counsel to opine, on
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the record[,] that she had rendered ineffective assistance of
counsel.
Evidentiary objections - In instances too numerous to list
individually, trial counsel repeatedly failed to adequately raise or
argue evidentiary objections. Her performance in this regard was
sufficiently poor that this Court stated its frustration with trial
counsel on the record.
Burrell’s criminal activity - inexplicably, trial counsel introduced
evidence that Burrell manufactured and distributed
methamphetamine. This is evidence that could not have been
introduced any other way, and plainly prejudiced Burrell in the
eyes of the jury.
Witness preparation - this is seen most acutely in the testimony of
Burrell’s father. Despite being called by Burrell, it was clear that
he did not understand the questions posed by trial counsel. This
demonstrated that Burrell’s most significant exculpatory witness
had not been prepared at all for his testimony.
Jury instructions - trial counsel was wholly unprepared to argue
the jury instructions. She could not discuss the legal basis for her
tendered instructions, instead requesting time to conduct
research. In nearly every instance, she simply withdrew her
tendered instructions due to her apparent lack of preparation and
knowledge.
Closing statement - the transcript in this case is more than 1800
pages long. One would think, then, that trial counsel’s closing
statement would need to be a sufficient length to address the key
points raised during those proceedings. Instead, trial counsel
gave a perfunctory closing, which was little more than a plea for
a not guilty verdict. This stood in stark contrast to the well-
prepared and thorough argument of the state.
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Sentencing - Trial counsel did not present evidence, witnesses, or
argument at sentencing, despite character witnesses that were
willing to testify, and mitigating factors that could have been
identified.
Professionalism - In the most striking example, trial counsel
arrived significantly late for one day of trial, which calls into
question her state during the remaining proceedings.
Id. at 71-72. On September 27, 2017, the PC Court issued an order setting a
hearing for October 30, 2017, to discuss the issue of Burrell’s transport to the
PCR hearing.
[6] On October 30, 2017, the PC Court held a hearing which, according to the
chronological case summary (“CCS”), was a status hearing on the “case
management PCR-2 and issue of transport.” Id. at 25. The following day, on
October 31, 2017, the PC Court entered a hearing journal entry on the CCS,
which stated:
State appears. Counsel for [defendant] appears telephonically.
Hearing held. By stipulation of parties, hearing on Post-
Conviction Relief continued. To be reset upon motion. Parties
stipulate to filing written briefs on said motion and will agree
upon timeline for submittal to Court for review. Transport Order
is moot but request may be revived upon motion for future
hearings.
Id. The PC Court’s written order regarding the hearing is nearly identical.
Subsequently, the parties agreed to a briefing schedule, which the PC Court
accepted, and submitted their briefs regarding Burrell’s petition for PCR. On
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November 13, 2017, the CCS indicates that the PCR hearing was cancelled
pursuant to the “[a]greement of [p]arties.” Id. at 25.
[7] On February 28, 2018, Burrell submitted his brief in support of his petition for
PCR, alleging he received ineffective assistance of counsel in several respects.
After an extension of time, the State filed its response on April 16, 2018. On
April 30, 2018, Burrell filed his reply brief in support of his petition for PCR.
No evidence or exhibits were attached to any of the briefs; moreover, no request
for a hearing was made by either party. Each party, however, did cite to the
record from the underlying trial as support for their positions regarding the
petition for PCR.
[8] On September 13, 2018, Burrell’s attorney filed a motion to withdraw his
appearance due to new employment, which the PC Court granted the same
day. Another attorney stepped in on Burrell’s behalf. On March 25, 2019, the
PC Court entered findings of facts and conclusions of law denying Burrell’s
petition for PCR. The order did not address the reason the PC Court ruled on
the petition for PCR based only on the briefs.
[9] The PC Court concluded that Burrell did not receive ineffective assistance of
counsel and, thus, denied Burrell’s request for PCR. The PC Court did find,
however, one area in which counsel’s performance was deficient. The PC
Court found that, at the motion for change of venue hearing, “counsel’s
performance was indeed deficient in the manner in which the hearing was
conducted. However, the Petitioner has failed to prove that this ineffectiveness
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had any impact upon the ultimate outcome of the trial.” Id. at 162. The PC
Court’s order concluded:
It is the Petitioner’s burden to prove that his representation, when
taken as a whole, was deficient. It is the Petitioner’s burden to
prove that trial counsel’s cumulative deficiencies rose to the level
of ineffective assistance of counsel and, finally, it is the
Petitioner’s burden to prove that any such overall trial counsel
ineffectiveness changed the outcome of the trial. The Petitioner
has not met this burden.
Id. at 168. Burrell now appeals.
Analysis
[10] In its brief, the State’s Statement of Facts indicates that the parties agreed to
briefing “in lieu of an evidentiary hearing.” Appellee’s Br. p. 8. The State
mentions this several times in its argument. This statement is not supported by
the pages in the appendix the State directs us to review. Moreover, later in the
argument portion of its brief, the State argues that Burrell “asked to have the
hearing cancelled and asked to proceed by briefing instead.” Id. at 15. The
State then directs us to Appellant’s Appendix Vol. II p. 50, which is the “State’s
Response to Petition for Transport,” and nowhere indicates that Burrell
requested the PC court to cancel the hearing and instead requested the PC
Court to rule on his petition for PCR based on the briefs. Again, we have found
no support for this contention in the record. It is clear that the parties agreed to
brief the matter; however, there is no evidence that this was intended to replace
the hearing. We caution the State to adequately state the facts as related in the
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record and to direct us to the proper pages in the record to support the State’s
contentions. See Indiana App. R. 46(B).
[11] At the outset, we note that our standard of review on the denial of a petition for
PCR is determined by how the PC Court arrived at its conclusion pursuant to
Indiana’s Post-Conviction Rules (“PCR Rules”). Generally, a petition for PCR
is heard, pursuant to Indiana Post-Conviction Rule 1(5), with a hearing. This
rule states:
The petition shall be heard without a jury. A record of the
proceedings shall be made and preserved. All rules and statutes
applicable in civil proceedings including pre-trial and discovery
procedures are available to the parties, except as provided above
in Section 4(b). The court may receive affidavits, depositions,
oral testimony, or other evidence and may at its discretion order
the applicant brought before it for the hearing. The petitioner has
the burden of establishing his grounds for relief by a
preponderance of the evidence.
Ind. Post-Conviction Rule 1(5).
[12] In limited circumstances, a PC Court is not required to conduct a hearing in
order to decide a petitioner’s petition for PCR. As the PC Court here did not
have a hearing before ruling on Burrell’s petition, we will analyze each of the
circumstances in which a hearing is not required in order to determine whether
the PC Court erred in ruling on Burrell’s petition for PCR without a hearing.
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I. Section 4(f)
[13] Indiana Post-Conviction Rule 1(4)(f) (“Section 4(f)”) states: “[I]f the pleadings
conclusively show that petitioner is entitled to no relief, the court may deny the
petition without further proceedings.” Typically, in Section 4(f) cases:
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.” P.-C.R.
1 § 4(f). If the petition alleges only errors of law, then the court
may determine without a hearing whether the petitioner is
entitled to 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.
Allen v. State, 791 N.E.2d 748, 752-53 (Ind. Ct. App. 2003), trans. denied.
[14] Section 4(f) is inapplicable here, because, importantly, Section 4(f) cases require
that the PC Court make its decision only on the pleadings. Here, the PC Court
did not rely merely on the pleadings, and instead, the PC Court received
argument in the form of briefs and reviewed the record from the trial. Even if
the PC Court was attempting to rule on Burrell’s petition for PCR under
Section 4(f), we note that issues of ineffective assistance of trial counsel are
particularly fact sensitive, and, “‘when a petitioner alleges ineffective assistance
of counsel, and the facts pled raise an issue of possible merit, the petition should
not be summarily denied.’” Binkley v. State, 993 N.E.2d 645, 650 (Ind. Ct. App.
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2013) (quoting Kelly v. State, 952 N.E.2d 297, 300 (Ind. Ct. App. 2011))
(emphasis supplied). Section 4(f) is inapplicable here.
II. Section 4(g)
[15] Indiana Post-Conviction Rule 1(4)(g) (“Section 4(g)”) states:
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.
The plain language of this rule requires “a motion by either party” and
consideration of the pleadings and the evidence outlined above.
[16] When we review a petition under Section 4(g):
[W]e 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.” P-C.R. 1 § 4(g). 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.
Allen, 791 N.E.2d at 753.
[17] First, we note that there is no indication on the CCS that Burrell or the State
moved for summary disposition as required by Section 4(g). In response, the
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State invites us to conclude that the State’s opposition to Burrell’s transport
demonstrates the “State’s procedural posture.” Appellee’s Br. p. 12. The
State’s opposition to transport cites Indiana-Post Conviction Rule 1(5), which
states that: “The Court may receive affidavits, depositions, oral testimony, or
other evidence and may at its discretion order the applicant brought before it for
the hearing.” This statement, however, falls short of moving for summary
disposition; in fact, the State requested that Burrell not be transported, but
instead, “appear via video teleconference equipment.” Appellant’s App. Vol. II
p. 50. The State cannot now convince us that this opposition of transport order
should be interpreted as the State’s motion for summary disposition.
[18] The State also argues that agreement for summary disposition was implicit
based on the CCS entries that: (1) the PCR hearing would be re-scheduled
pursuant to the “[a]greement of [p]arties”; and (2) “[b]y stipulation of parties,
hearing on Post-Conviction Relief [is] continued. To be reset upon motion.
Parties stipulate to filing written briefs on said motion and will agree upon a
timeline for submittal to Court for review.” Appellant’s App. Vol. II p. 25. We
decline to infer this from the record. The record reveals the parties agreed to
brief the issue. No support, however, exists for the contention that the parties
agreed to do so in lieu of a hearing. The State does not point us to any hearing
transcript or motion in which the State or Burrell agreed to summary
disposition. The State’s argument fails. Accordingly, Section 4(g) is
inapplicable.
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III. Section 9(b)
[19] Finally, in response to Burrell’s argument that he was entitled to a hearing, the
State argues that, “in the case of pro se petitioners, [the rules] do not mandate a
hearing.” Appellee’s Br. p. 12. Pursuant to Indiana Post-Conviction Rule 1(9)
(b) (“Section 9(b)”), “[i]n the event petitioner elects to proceed pro se, the court
at its discretion may order the cause submitted upon affidavit.” Burrell was
represented by counsel at the time of the filing of his August 2017 petition for
PCR. At the same time his attorney withdrew on September 13, 2018, another
attorney stepped in to represent Burrell. The record is devoid of any request or
PC Court order indicating that the trial court ordered the case to be submitted
upon affidavit. Additionally, neither the State nor Burrell included any
affidavits with their briefs. Any argument by the State that Burrell should have
submitted an affidavit because he was not precluded from doing so fails, as the
PC Court never ordered Burrell to do as much. Accordingly, Section 9(b) is
inapplicable.
[20] Based on the foregoing, the State, Burrell, and the PC Court did not proceed
according to the PCR Rules. Accordingly, Burrell was entitled to an
evidentiary hearing on his petition for PCR.
Conclusion
[21] Based on the record before us, Burrell was entitled to a hearing on his petition
for PCR pursuant to Indiana’s Post-Conviction Rules. We reverse and remand.
[22] Reversed and remanded.
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Altice, J., concurs.
Brown, J., concurs in result without opinion.
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