James Durham v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Apr 28 2020, 8:59 am
the defense of res judicata, collateral CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
James Durham Curtis T. Hill, Jr.
Pendleton, Indiana Attorney General of Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Durham, April 28, 2020
Appellant-Petitioner, Court of Appeals Case No.
19A-PC-2859
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable Carl A. Heldt,
Appellee-Respondent. Judge
Trial Court Cause No.
82C01-1404-PC-6
Bradford, Chief Judge.
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Case Summary
[1] In 2005, James Durham pled guilty to two counts of murder and three counts of
Class A felony attempted murder, for which he was sentenced to an aggregate
term of 210 years of incarceration. On appeal, we affirmed the trial court’s
denial of Durham’s motion to withdraw his guilty plea but found his sentence
inappropriate in light of his mental illness, reducing it to 170 years. We affirmed
our decision on rehearing, and the Indiana Supreme Court denied transfer.
[2] In 2014, Durham filed his petition for post-conviction relief (“PCR”), alleging
ineffective assistance of appellate and trial counsel, and the post-conviction
court ordered the parties to proceed by affidavit. The post-conviction court
denied Durham’s petition in full. Durham contends that the post-conviction
court erred by denying him a hearing and PCR. We affirm.
Facts and Procedural History
[3] The underlying facts leading to Durham’s appeal of the denial of his PCR
petition are as follows:
On May 9, 2003, Durham shot Joseph Scales in the neck with a
handgun. On May 10, 2003, Durham entered a bar in
Vanderburgh County. After exclaiming religious ideations,
Durham shot four people, killing two of them. Police arrested
Durham shortly thereafter, and a gun found on his person was
identified as the gun used in the shootings.
The State charged Durham with two counts of murder [] and two
counts of attempted murder, Class A felonies, regarding the
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shootings at the bar. The State then added a charge for an
Habitual Offender enhancement. Following a hearing, on May
27, 2005, the trial court ordered evaluations to determine
Durham’s competency and sanity. Two psychiatrists, Dr. Hilton
and Dr. Liffick, evaluated Durham, and, after a hearing, the trial
court found him to be incompetent to assist with his defense and
ordered him committed to the Department of Mental Health.
The court noted that Durham was disruptive at that hearing, “as
in all previous court appearances.” Appellant’s App. at 24.
Durham began treatment at the Logansport State Hospital
(“Hospital”) in December 2003. On March 31, 2004, the
Hospital filed its report, which included its determination that
Durham was competent, and the trial court adopted that
determination. At a hearing on April 13, 2004, the trial court
ordered an evaluation to determine Durham’s sanity at the time
of the alleged offenses. On August 4, 2004, Dr. Liffick filed his
psychiatric report regarding Durham’s sanity. Dr. Hilton then
informed the court that Durham refused to be transported for
evaluation. On August 17, 2004, after a hearing, the trial court
granted a defense motion to have Durham re-evaluated as to
competency.
On August 24, 2004, Durham appeared at a hearing and stated
that he did not wish to assert an insanity defense, but he agreed
to be evaluated. On August 25, 2004, the trial court ordered new
evaluations regarding Durham’s competency and his sanity. On
September 10, 2004, Dr. Hilton filed a report of his psychiatric
evaluation of Durham, and at a hearing on September 30, 2004,
at which Durham appeared in person, the trial court again found
Durham competent to assist with his defense.
Trial was scheduled to begin on January 10, 2005. At a progress
hearing on December 10, 2004, defense counsel requested a
weekend continuance to allow Durham to “talk with his family
about how to proceed.” Id. at 14. The trial court denied that
request. On January 7, 2005, three days before the trial was
scheduled to start, the sheriff’s department informed the court
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that Durham had stopped taking his medications “that were
prescribed by the psychiatrist at the mental hospital after the
court found him to be incompetent to assist in his defense.” Id. at
12. The court noted that Durham had “returned from the mental
hospital and [had been] adjudged competent as a result of [his]
taking the medication. [Durham] ha[d] been calm, lucid and
responsive in the court room and much different than what he
was before he was sent to the mental hospital.” Id. Defense
counsel first learned at 10:30 a.m. that day that Durham had
ceased taking his medications, and the jail reported that Durham
was “beginning to show symptoms [of his mental illness].” Id.
Thereafter, the trial court brought Durham into the courtroom,
questioned him, and determined him to be competent. Durham
informed the court that the medications had been making him
sick. The trial court ordered Durham to take his medications and
stated that it would send a psychiatrist to “help give him some
medication that won’t make him sick . . . .” Id. Durham then
agreed to start taking his medications again. In response to
questioning by defense counsel, Durham stated that he did not
think he was competent at that time but would start taking his
medications. The trial court denied defense counsel’s request to
have Durham’s competency re-evaluated.
On January 8, 2005, the State filed in open court an additional
attempted murder charge, regarding the shooting of Scales.
Thereafter, the parties filed a plea agreement, under which
Durham pleaded guilty to two counts of murder and three counts
of attempted murder, Class A felonies. After questioning
Durham, the trial court found that a factual basis for the plea
existed and that Durham had entered the plea knowingly,
voluntarily, and intelligently.
On January 28, 2005, Durham filed a motion to withdraw his
guilty plea. After hearing arguments from both parties, the court
denied the motion. On March 1, 2005, the trial court sentenced
Durham to sixty years for each murder count and forty-five years
for each attempted murder count. The sentences for the murders
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and for the first two attempted murder counts were to run
consecutive to one another, and the sentence for the third
attempted murder count was to run [concurrent] to the other
sentences. Durham’s total executed sentence was 210 years. This
appeal ensued.
Durham v. State, 82A04-0504-CR-175 (Ind. Ct. App. April 13, 2006), aff’d on
reh’g. On direct appeal, Durham argued that the trial court abused its discretion
by denying his motion to withdraw his guilty plea and in sentencing him. Id.
We disagreed with Durham’s contention that he was incompetent at the time of
his plea, thereby preventing his plea from being voluntary, knowing, and
intelligent, and affirmed the trial court’s denial of his motion to withdraw his
guilty plea. Id. We agreed, however, that his sentence was inappropriate in light
of his mental illness and reduced his sentence to 170 years. Id. We granted
Durham’s petition for rehearing and reaffirmed our prior decision. Durham v.
State, 82A04-05-04-CR-175 (Ind Ct. App. August 31, 2006). Durham sought
transfer, which was denied by the Indiana Supreme Court. Durham v. State, 860
N.E.2d 596 (Ind. 2006).
[4] On April 17, 2014, Durham filed a PCR petition, which was amended in
December of 2014, and the post-conviction court ordered the parties to proceed
by affidavit. Durham alleged claims of ineffective assistance of trial and
appellate counsel. On November 13, 2019, the post-conviction court denied
Durham PCR.
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Discussion and Decision
[5] The standard of review for appeals from the denial of PCR is well-settled.
Petitioners who have exhausted the direct-appeal process may challenge the
correctness of their convictions and sentences by filing a post-conviction
petition. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Petitioner bears the
burden of establishing grounds for PCR by a preponderance of the evidence. Id.
By appealing from a negative judgment, a petitioner faces a rigorous standard of
review. Wesley v. State, 788 N.E.2d 1247, 1250 (Ind. 2003). Denial of PCR will
be affirmed unless, “the evidence as a whole leads unerringly and unmistakably
to a decision opposite that reached by the post-conviction court.” Id. We do not
defer to the post-conviction court’s legal conclusion but do accept its factual
findings unless they are clearly erroneous. Stevens, 770 N.E.2d at 746. The post-
conviction process does not provide a petitioner with a “super-appeal” but,
rather, a “narrow remedy for subsequent collateral challenges to convictions,
challenges which must be based on grounds enumerated in the post-conviction
rules.” Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999). Issues that were
known and available but not raised on direct appeal are waived, and issues
raised but decided adversely are res judicata. Id.
I. Denial of Evidentiary Hearing and Subpoenas
[6] Durham contends that the post-conviction court erroneously failed to issue
subpoenas and hold an evidentiary hearing regarding his PCR petition.
Pursuant to Indiana Post-Conviction Rule 1(9)(b)
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In the event petitioner elects to proceed pro se, the court at its
discretion may order the cause submitted upon affidavit. It need
not order the personal presence of the petitioner unless his
presence is required for a full and fair determination of the issues
raised at an evidentiary hearing. If the pro se petitioner requests
issuance of subpoenas for witnesses at an evidentiary hearing, the
petitioner shall specifically state by affidavit the reason the
witness’ testimony is required and the substance of the witness’
expected testimony. If the court finds the witness’ testimony
would be relevant and probative, the court shall order that the
subpoena be issued. If the court finds the proposed witness’
testimony is not relevant and probative, it shall enter a finding on
the record and refuse to issue the subpoena. Petitioners who are
indigent and proceeding in forma pauperis shall be entitled to
production of guilty plea and sentencing transcripts at public
expense, prior to a hearing, if the petition is not dismissed. In
addition, such petitioners shall also be entitled to a record of
the post-conviction proceeding at public expense for appeal of the
denial or dismissal of the petition.
We review a post-conviction court’s decision to proceed under Indiana Post-
Conviction Rule 1(9)(b) for an abuse of discretion. Smith v. State, 822 N.E.2d
193, 201 (Ind. Ct. App. 2005), trans. denied. “An abuse of discretion occurs
where the decision is clearly against the logic and effect of the facts and
circumstances.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).
[7] In his motions to the post-conviction court and his appellate brief, Durham has
failed to explain why an evidentiary hearing was required or how any witness’s
testimony would have assisted in the disposition of his PCR petition. At best,
his explanation has been merely a recitation of his contentions for PCR or a
bald statement that witnesses are necessary for a full and fair evidentiary
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determination of the issues. Durham has failed to establish an abuse of
discretion in this regard.
II. Ineffective Assistance of Appellate Counsel
[8] Durham raises numerous specific claims of ineffective assistance of appellate
counsel for the first time on appeal. In his PCR petition, Durham merely stated
broadly that he received ineffective assistance of appellate counsel without
providing any specific argument or cogent reasoning. In denying him relief, the
post-conviction court noted that “Petitioner has failed to identify how his
appellate counsel provided ineffective assistance nor provide any evidence by
way of affidavits or otherwise in support of this argument.” Appellant’s Br. p.
78. Because Durham failed to raise these specific claims of ineffective assistance
of appellate counsel in his PCR petition, they are barred from appellate review.
See Minnick v. State, 698 N.E.2d 745, 753 (Ind. 1998) (concluding that
“[b]ecause the defendant’s final amended post-conviction petition did not claim
denial of counsel from the failure to request funds, this specific claimed failure
is not available in this appeal.”).
III. Ineffective Assistance of Trial Counsel
[9] Durham contends that he received ineffective assistance from his trial counsel.
This Court reviews claims of ineffective assistance of counsel
under the two components set forth in Strickland v. Washington,
466 U.S. 669, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, the
defendant must show that counsel’s performance was deficient.
This requires a showing that counsel’s representation fell below
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an objective standard of reasonableness, and that the errors were
so serious that they resulted in a denial of the right to counsel
guaranteed the defendant by the Sixth Amendment[.] Second,
the defendant must show that the deficient performance
prejudiced the defendant. To establish prejudice, a defendant
must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.
Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002) (internal citations omitted).
There is a strong presumption that counsel rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment. Counsel is afforded
considerable discretion in choosing strategy and tactics, and these
decisions are entitled to deferential review. Isolated mistakes,
poor strategy, inexperience, and instances of bad judgment do
not necessarily render representation ineffective.
Id. (cleaned up). “There are two different types of ineffective assistance of
counsel claims that can be made in regards to guilty pleas: (1) failure to advise
the defendant on an issue that impairs or overlooks a defense and (2) an
incorrect advisement of penal consequences.” McCullough v. State, 987 N.E.2d
1173, 1176 (Ind. Ct. App. 2013). The Indiana Supreme Court further explained
that
to prove this in the case of claims related to a defense or failure to
mitigate a penalty, it must be shown that there is a reasonable
probability that a more favorable result would have obtained in a
completely run trial. However, for claims relating to penal
consequences, a petitioner must establish, by objective facts,
circumstances that support the conclusion that counsel’s errors in
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advice as to penal consequences were material to the decision to
plead. Merely alleging that the petitioner would not have pleaded
is insufficient. Rather, specific facts, in addition to the petitioner’s
conclusory allegation, must establish an objective reasonable
probability that competent representation would have caused the
petitioner not to enter a plea.
Seguara v. State, 749 N.E.2d 496, 507 (Ind. 2001).
A. Scrivener’s Error
[10] Durham contends that his trial counsel was ineffective for failing to correct a
scrivener’s error in the plea agreement. The plea agreement requested that the
trial court “approve and accept the aforesaid agreement pursuant to I.C. 35-5-6-
2.” Appellant’s Direct Appeal App. p. 318. Indiana Code section 35-5-6-2 was
repealed and replaced by Indiana Code section 35-35-3-3 years prior to
Durham’s guilty plea. Although Durham has directed our attention to this
scrivener’s error, he has failed to establish any specific facts that would remotely
suggest that had counsel discovered this scrivener’s error there is an objectively
reasonable probability that he would not have entered a plea of guilty.
B. Boykin Rights
[11] Durham claims that his trial counsel was ineffective by failing to object when he
was not advised of his Boykin rights. “Boykin requires that the record must
show, or there must be an allegation and evidence which show, that the
defendant was informed of, and waived, three specific federal constitutional
rights: the privilege against compulsory self-incrimination, right to trial by jury,
and the right to confront one’s accusers.” Hall v. State, 849 N.E.2d 466, 469
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(Ind. 2006). Because he was advised of his Boykin rights and waived them,
Durham’s claim is meritless. On January 8, 2005, the trial court advised
Durham as follows:
BY THE COURT: I need to repeat some rights and add some
rights that you have with regard to all five of these and I want
you to listen closely. You are entitled to a speedy and public trial
by Court or jury. The State must prove beyond a reasonable
doubt that you committed the offenses charged before you could
be convicted of them. You have the right to introduce evidence
and testify if you so desire, however you cannot be compelled or
forced to testify against yourself. The Court will subpoena any
witnesses needed for your defense. You have the right to object
to the introduction of the evidence and to confront and to cross
examine any witness used by the State. If the verdict is against
you and you are found guilty you would have the right to appeal,
and if you could not afford an attorney the court would appoint
an attorney to represent you on that appeal. Do you understand
these rights?
BY [DURHAM]: Yes.
BY THE COURT: Do you also understand, Mr. Durham, that
be pleading guilty you’re giving up all of these rights?
BY [DURHAM]: Yes.
Direct Appeal Tr. p. 52. Durham has failed to establish that his counsel was
ineffective in this regard.
C. Factual Basis
[12] Durham claims that his trial counsel was ineffective for failing to object to an
allegedly inadequate factual basis. “A sufficient factual basis can be established
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by the defendant’s admission that he understands the nature of the crime and
understands that his guilty plea is an admission that he committed the crime.”
Bates v. State, 517 N.E.2d 379, 382 (Ind. 1988). This claim is also meritless. On
January 8, 2005, the trial court and Durham had the following colloquy:
BY THE COURT: Now I have this plea agreement in front of
me and it recites as you know that in addition to Count V you’ve
also been charged with Count I Murder, Count II Murder, Count
III Attempted Murder, a Class A felony and Count IV Attempted
Murder a Class A felony. Do you understand the nature of those
charges?
BY [DURHAM]: Yes.
[…]
BY THE COURT: Do you understand that by your pleas of
guilty you are admitting the truth of all the facts alleged in
Counts I, II, III, IV and V and upon entry of your pleas the Court
will proceed with judgment and sentencing, do you understand
that?
BY [DURHAM]: Yes.
[…]
BY THE COURT: Now the State says in Count I that in
Vanderburgh County, Indiana, on or about May 10, 2003 you
knowingly killed Steve Winneke by shooting Steve Winneke …
Steven Winneke using a Glock handgun, did you do that, Mr.
Durham?
BY [DURHAM]: Yes.
BY THE COURT: In Count II they say that in Vanderburgh
County, Indiana on or about May 10, 2003, you knowingly killed
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Marsha Fraser by shooting Marsha Fraser using a Glock
handgun, did you do that, sir?
BY [DURHAM]: Yes.
BY THE COURT: And in Count III they say that in Vanderburg
County, Indiana, on or about May 10, 2003 you attempted to
commit the crime of murder by intentionally shooting a Glock
handgun at Melony Jones, which conduct constituted a
substantial step toward the commission of the crime of murder,
did you do that?
BY [DURHAM]: Yes.
BY THE COURT: In Count IV they say that in Vanderburgh
County, Indiana, on or about May 10, 2003 you attempted to
commit the crime of murder by intentionally shooting a Glock
handgun at Barry Rolley which conduct constituted a substantial
step toward … toward the commission of the crime of murder,
did you do that?
BY [DURHAM]: Yes.
BY THE COURT: And as I told you before in Count V they say
that in Vanderburgh County, Indiana, on or about May 9, 2003,
you attempted to commit the crime of murder by intentionally
shooting Joseph Scales in the neck while using a handgun, which
conduct constituted a substantial step toward the commission of
the crime of murder, did you do that, Mr. Durham?
BY [DURHAM]: Yes.
Direct Appeal Transcript pp. 51–52, 53–54. Given that there was, in fact, an
adequate factual basis, Durham has failed to establish that his counsel was
ineffective in this regard.
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D. Consecutive Sentences
[13] Because Durham’s trial counsel allegedly failed to advise him of the possibility
of a sentence with consecutive terms, he contends that his counsel was
ineffective. The record, however, indicates that Durham was advised of the
possibility of consecutive sentences and still chose to plead guilty. The plea
agreement clearly states that Durham faced a possible sentence between forty-
five and 230 years. The plea agreement was signed by Durham and, by signing
it, he affirmed that he understood the terms of the agreement and fully
discussed them with his counsel. Moreover, in his affidavit responding to
Durham’s questions in this matter, Durham’s trial counsel David Brunner
stated that he and co-counsel “reviewed the agreement with [Durham,]
thoroughly, and explained it to him in the secured area behind the Courtroom.”
Appellant’s App. Vol. II p. 221. Brunner also stated that he and co-counsel
“explained ‘consecutive’ and ‘concurrent’ sentencing to [Durham] at length.”
Id. at 223. Finally, at the guilty plea hearing, the trial court explained to
Durham that it could run Counts I through IV consecutively for a possible
penalty between forty-five and 230 years, to which Durham stated that he
understood. Durham has failed to establish that counsel was ineffective in this
regard.
E. Count V
[14] Durham contends that because Count V, Class A felony attempted murder was
added after the omnibus date, his trial counsel was ineffective for failing to
object to the addition. By agreeing to plead guilty to Count V in this case, the
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State agreed to run Count V concurrent to the other four Counts and dismiss
the habitual offender enhancement. Not only did Durham’s counsel’s plea
negotiations prevent Durham from facing a possible habitual offender
enhancement, they resulted in Count V being run concurrently to the other
Counts in this case, rather than the possibility of the State filing the charge in a
separate case in which there would be no guarantee of a concurrent sentence.
Moreover, assuming, arguendo, that Durham’s trial counsel should have
objected to the addition of Count V once it was added after the omnibus date,
Durham has failed to assert any specific facts that establish an objective
reasonable probability that competent representation would have caused him
not to plead guilty. The post-conviction court’s denial of PCR was proper in
this regard.
F. Voluntariness of Plea
[15] Durham claims that his trial counsel was ineffective for failing to adequately
challenge that his plea was not given voluntarily, knowingly, or intelligently.
On direct appeal, we concluded that
Durham next contends that the trial court’s denial of his motion
to withdraw his guilty plea worked a manifest injustice because
he was incompetent at the time of his plea. Essentially, Durham
is alleging that his plea was not voluntary, knowing, and
intelligent. We cannot agree.
Durham v. State, 82A04-0504-CR-175 (Ind. Ct. App. April 13, 2006), aff’d on
reh’g. Given our previous conclusion that Durham’s plea was voluntary,
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knowing, and intelligent, Durham cannot show that his trial counsel’s
performance was deficient in this regard.
[16] The judgment of the post-conviction court is affirmed.
Baker, J., and Pyle, J., concur.
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