Michael W. Gillam 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 Dec 10 2020, 9:08 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Michael W. Gillam Curtis T. Hill, Jr.
Michigan City, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael W. Gillam, December 10, 2020
Appellant-Petitioner, Court of Appeals Case No.
19A-PC-3001
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jane Woodward
Appellee-Plaintiff Miller, Judge
Trial Court Cause No.
71D01-1810-PC-34
May, Judge.
[1] Michael W. Gillam appeals following the trial court’s denial of his petition for
post-conviction relief. We affirm.
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Facts and Procedural History
[2] In 2011, the Indiana Department of Child Services received a report that alleged
Gillam had been involved in a relationship with a minor female, R.G., since
2003. Detective Jason Briggs of the St. Joseph County Special Victims Unit
interviewed R.G. R.G. reported that she had been in a sexual relationship with
Gillam from when she was ten years old until 2010, when she was sixteen years
old. Detective Briggs also interviewed Gillam, who admitted engaging in
sexual conduct with R.G. between 100 and 200 times. Gillam also admitted
taking pictures and filming R.G. while she was nude.
[3] Gillam was arrested, and the State charged him with four counts of Class A
felony child molesting, 1 four counts of Class B felony sexual misconduct with a
minor, 2 one count of Class C felony child exploitation, 3 and four counts of
Class C felony incest. 4 Gilliam entered into a plea agreement with the State in
which he agreed to plead guilty to two counts of Class A felony child molesting,
two counts of Class B felony sexual misconduct with a minor, and one count of
Class C felony child exploitation. In turn, the State agreed to dismiss the
remaining eight charges. The plea agreement left sentencing open, with the
exception that the sentence for Class C felony child exploitation would run
1
Ind. Code § 35-42-4-3.
2
Ind. Code § 35-42-4-9.
3
Ind. Code § 35-42-4-4.
4
Ind. Code § 35-46-1-3.
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concurrent with one of his sentences for Class B felony sexual misconduct with
a minor. At Gillam’s change of plea hearing on November 15, 2011, Gillam
acknowledged that he read and understood the terms of his plea agreement.
The court also informed Gillam of the potential maximum and minimum
sentences he faced if the court accepted the plea agreement. Gillam
acknowledged that he understood the potential penalties and proceeded to
plead guilty. Gillam also indicated that he was satisfied with his counsel’s
advice.
[4] The trial court held a sentencing hearing on December 15, 2011. The trial court
sentenced Gillam to thirty years for each Class A felony child molesting
conviction, ten years for each Class B felony sexual misconduct with a minor
conviction, and four years for the Class C felony child exploitation conviction.
The trial court ordered the sentences for the two Class A and two Class B
felonies to all be served consecutively, with the sentence for the Class C felony
served concurrently, resulting in an aggregate eighty-year sentence.
[5] Gillam filed a petition for post-conviction relief on October 17, 2018, alleging
“police violated terms of search warrant [and] prosecutor picked and choosed
what to ‘discover’ in my juvenile record.” (App. Vol. II at 115) (errors in
original). However, during a status conference regarding his petition for post-
conviction relief, Gillam asserted he was pursuing a claim for ineffective
assistance of counsel. The post-conviction court held an evidentiary hearing on
Gillam’s petition on July 12, 2019. Gillam’s trial counsel and Detective Briggs
testified at the evidentiary hearing. On October 10, 2019, the post-conviction
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court issued an order with findings of fact and conclusions of law denying
Gillam’s petition for post-conviction relief.
Discussion and Decision
[6] Initially, we note Gillam elected to proceed pro se before the post-conviction
court below and this court on appeal. Litigants who proceed pro se are held to
the same established rules of procedure that trained counsel is bound to follow.
Smith v. Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert.
dismissed, 558 U.S. 1074 (2009). One risk a litigant takes when proceeding pro
se is that he will not know how to accomplish all the things an attorney would
know how to accomplish. Id. When a party elects to represent himself, there is
no reason for us to indulge in any benevolent presumption on his behalf or to
waive any rule for the orderly and proper conduct of his appeal. Foley v.
Mannor, 844 N.E.2d 494, 496 n.1 (Ind. Ct. App. 2006).
[7] A post-conviction relief petition provides a “quasi-civil remedy” and requires
the petitioner to prove he is entitled to relief by a preponderance of the
evidence. Koons v. State, 771 N.E.2d 685, 688 (Ind. Ct. App. 2002), trans.
denied. “When appealing from the denial of a petition for post-conviction relief,
the petitioner stands in the position of one appealing from a negative
judgment.” Bethel v. State, 110 N.E.3d 444, 449 (Ind. Ct. App. 2018), trans.
denied. Therefore, we will reverse the denial of a petition for post-conviction
relief only if “the evidence as a whole leads unerringly and unmistakably to a
conclusion opposite that reached by the post-conviction court.” Id. Where the
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post-conviction court enters findings of fact and conclusions of law in
accordance with Post-Conviction Rule 1(6), we do not defer to the trial court’s
legal conclusions, but we do review the post-conviction court’s factual findings
for clear error. McDowell v. State, 102 N.E.3d 924, 929 (Ind. Ct. App. 2018),
trans. denied. We do not reweigh the evidence or judge the credibility of the
witnesses. Id. We consider the probative evidence and all reasonable
inferences therefrom in the light most favorable to the post-conviction court’s
ruling. Id.[8] Indiana Appellate Rule (8)(a) requires that the argument section of an
appellant’s brief “contain the contentions of the appellant on the issues
presented, supported by cogent reasoning. Each contention must be supported
by citations to the authorities, statutes, and the Appendix or parts of the Record
on Appeal, relied on, in accordance with Rule 22.” This requirement preserves
the impartiality of the appellate tribunal. Young v. Butts, 685 N.E.2d 147, 151
(Ind. Ct. App. 1997). “A court which must search the record and make up its
own arguments because a party has not adequately presented them runs the risk
of becoming an advocate rather than an adjudicator.” Id. As the State notes:
“It is unclear what legal claims Gillam presents on appeal. Gillam references
legal concepts, case law, statutes, and constitutional rights, but he fails to
support his references with cogent reasoning or citations to evidence in the
record[.]” (Appellee’s Br. at 14.) Gillam’s brief casts aspersions on the deputy
prosecutor, his trial counsel, the judge, and “the well-funded ‘child saving
industry,’” (Appellant’s Br. at 11), but Gillam does not offer coherent
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explanations or point to evidence in the record to back up his assertions.
Therefore, we hold Gilliam waived his arguments on appeal by failing to
present a cogent argument. 5 See Martin v. Hunt, 130 N.E.3d 135, 138 (Ind. Ct.
App. 2019) (holding appellant waived issues on appeal by failing to present a
cogent argument).
[9] Waiver notwithstanding, we review whether Gillam’s trial counsel was
ineffective. An ineffective assistance of counsel claim requires the petitioner to
demonstrate “that his counsel’s performance fell below an objective standard of
reasonableness as determined by prevailing professional norms, and that the
lack of reasonable representation prejudiced him.” Rondon v. State, 711 N.E.2d
506, 517 (Ind. 1999). The petitioner must overcome the presumption that his
trial counsel exercised reasonable judgment and performed adequately. Id.There are two categories of claims of error available to a petitioner pursuing an
ineffective assistance of counsel claim after pleading guilty: “(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 petitioner must also show that but for his
counsel’s errors he would not have pled guilty and there was a “reasonable
probability” that he would have obtained a more favorable result at trial. Segura
5
Similarly, any claims related to the officer’s execution of a search warrant or the prosecutor’s conduct
during discovery in Gillam’s criminal proceeding, which were alleged in Gillam’s petition for post-conviction
relief but not argued on appeal, are waived. See Reed v. Reid, 980 N.E.2d 277, 299 n.17 (Ind. 2012) (holding
argument not renewed on appeal was abandoned).
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v. State, 749 N.E.2d 496, 507 (Ind. 2001), disapproved on other grounds by Bobadilla
v. State, 117 N.E.3d 1272, 1287 (Ind. 2019).
[10] Gillam confessed to engaging in sexual conduct with R.G. between 100 and
200 times, and Gillam does not point to any impaired or overlooked defense
that conceivably could have been able to overcome such substantial evidence of
his guilt. Further, Gillam’s trial counsel testified at the post-conviction hearing
that he advised Gillam during their consultations that Gillam faced a lengthy
sentence. At the change of plea hearing, the trial court informed Gillam that he
faced a maximum possible sentence of 140 years, and Gillam acknowledged
that he understood the maximum sentence he faced before he entered a guilty
plea. Therefore, Gillam has not demonstrated he received ineffective assistance
of trial counsel. See Manzano v. State, 12 N.E.3d 321, 327 (Ind. Ct. App. 2014)
(holding defendant who pled guilty to rape did not receive ineffective assistance
of trial counsel), trans. denied, cert. denied, 135 S. Ct. 2376 (2015).
[11] In his appellate brief, Gillam describes his sentence as “egregious” and
“excessive.” (Appellant’s Br. at 5, 6). To the extent Gillam is attempting to
challenge the length of his sentence, the post-conviction court found in its order
on Gillam’s petition for post-conviction relief that he waived the right to appeal
his sentence pursuant to the terms of his plea agreement. Even though the post-
conviction order indicates a copy of Gillam’s plea agreement is attached as an
exhibit to the order, Gillam failed to include the plea agreement in his
appendix. Therefore, Gillam has waived any challenge to the trial court’s
finding that he waived his right to appeal his sentence due to his failure to
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present an adequate record. See Wilhoite v. State, 7 N.E.3d 350, 355 (Ind. Ct.
App. 2014) (holding defendant failed to present a sufficient record to permit
review of his claim that he was not tried by a jury of his peers). Nonetheless,
Gillam did not file a direct appeal of his sentence, and therefore, he cannot
subsequently challenge the propriety of his sentence via a petition for post-
conviction relief. See Taylor v. State, 780 N.E.2d 430, 435 (Ind. Ct. App. 2002)
(holding defendant who did not challenge his sentence by filing a direct appeal
could not challenge his sentence through a petition for post-conviction relief),
reh’g denied, trans. denied. Gillam has not demonstrated he was entitled to relief
based on his petition for post-conviction relief.
Conclusion
[12] Gillam failed to present a cogent argument, and therefore he has waived his
claims on appeal. Waiver notwithstanding, Gillam has not demonstrated his
trial counsel was ineffective. He also did not file a direct appeal challenging his
sentence, and therefore, he may not challenge the length of his sentence in a
petition for post-conviction relief. For all these reasons, we find no error in the
trial court’s denial of Gillam’s petition for post-conviction relief. Therefore, we
affirm.
[13] Affirmed.
Riley, J., and Altice, J., concur.
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