Michael Kopp v. State of Indiana (mem. dec.) ( 2017 )

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 Nov 13 2017, 9:04 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Michael Kopp Curtis T. Hill, Jr.
Pendleton, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Kopp, November 13, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1701-PC-146
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Stanley Kroh,
Appellee-Plaintiff Magistrate
Trial Court Cause No.
49G03-1412-PC-054615
May, Judge.
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[1] Michael Kopp appeals the post-conviction court’s denial of his petition for post-
conviction relief. He argues his appellate counsel was ineffective for improperly
arguing double jeopardy and failing to raise certain issues as part of his direct
appeal. We affirm.
Facts and Procedural History
[2] The facts of Kopp’s relevant 1 convictions were set forth by our court as part of
his direct appeal:
Kopp is the step-father of the victim, L.P. The evidence at trial
shows that Kopp molested his victim in numerous ways during
his marriage to the victim’s mother.
Count I of the charging information alleges that Kopp molested
L.P. on or between May 1, 1998 to August 31, 1998. Count II of
the charging information alleges that Kopp molested L.P. on or
about September 1, 1998, to January 17, 1999.
Kopp v. State, 867 N.E.2d 288 at *1 (Ind. Ct. App. May 24, 2007). The trial
court sentenced Kopp to an aggregate sentence of sixty years, with forty years
executed, twenty years suspended, and ten years of probation.
1
The trial court also convicted Kopp of Class D felony child seduction, but he did not challenge that
conviction as part of his direct appeal or in the current appeal of the denial of his request for post-conviction
relief.
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[3] On direct appeal, Kopp argued his convictions for two counts of Class A felony
child molesting violated the continuing crime doctrine 2 and his right to be free
from double jeopardy based on the actual evidence test. 3 We affirmed Kopp’s
convictions. Regarding his first argument, we held:
Kopp’s acts do not constitute a continuing criminal transaction.
They were not compressed in time or continuity of action. The
victim’s testimony established that Kopp molested her on a
regular basis over a period of time that began during the summer
between the victim’s seventh and eighth grades and continued
through her junior year of high school.
Id. Regarding his second argument, we concluded,
the Kopp jury heard testimony from the victim from which it
could find or infer that a molestation occurred during the time
frame specified in the first count and the jury heard separate
testimony from which it could find or infer that an additional
molestation occurred during the time frame specified in the
second count.
2
The continuing crime doctrine states that “actions that are sufficient in themselves to constitute separate
criminal offenses may be so compressed in terms of time, place, singleness of purpose, and continuity of
action as to constitute a single transaction.” Riehle v. State, 823 N.E.2d 287, 296 (Ind. Ct. App. 2005), trans.
denied.
3
Under the actual evidence test,
the actual evidence presented at trial is examined to determine whether each challenged
offense was established by separate and distinct facts. To show that two challenged
offenses constitute the ‘same offense’ in a claim of double jeopardy, a defendant must
demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to
establish the essential elements of one offense may also have been used to establish the
essential elements of a second challenged offense.
Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999).
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Id. at *2.
[4] On July 28, 2011, Kopp filed a petition for post-conviction relief. He withdrew
that petition on March 1, 2013, and refiled a petition for post-conviction relief
on December 11, 2014. In the refiled petition, he alleged his appellate counsel
was ineffective for a variety of reasons. The post-conviction court held a
hearing on the matter on July 21, 2015, during which Kopp’s appellate counsel,
Taffanee Keys, testified. On January 3, 2017, the post-conviction court denied
Kopp’s petition for post-conviction relief.
Discussion and Decision
[5] We first note Kopp proceeds pro se. A litigant who proceeds pro se is held to the
same 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 he proceeds 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, 502 (Ind. Ct. App. 2006).
[6] Post-conviction proceedings afford petitioners a limited opportunity to raise
issues that were unavailable or unknown at trial and on direct appeal. Davidson
v. State, 763 N.E.2d 441, 443 (Ind. 2002), reh’g denied, cert. denied, 537 U.S. 1122Court of Appeals of Indiana | Memorandum Decision 49A02-1701-PC-146 | November 13, 2017 Page 4 of 9
(2003). As post-conviction proceedings are civil in nature, the petitioner must
prove his grounds for relief by a preponderance of the evidence. Id. A party
appealing a post-conviction judgment must establish that the evidence is
without conflict and, as a whole, unmistakably and unerringly points to a
conclusion contrary to that reached by the post-conviction court. Id. Where, as
here, the post-conviction court makes findings of fact and conclusions of law in
accordance with Indiana Post–Conviction Rule 1(6), we do not defer to the
court’s legal conclusions, but “the findings and judgment will be reversed only
upon a showing of clear error—that which leaves us with a definite and firm
conviction that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d 102,
106 (Ind. 2000) (internal quotation and citation omitted), reh’g denied, cert.
denied, 534 U.S. 830 (2001).
[7] We review claims of ineffective assistance of appellate counsel using the same
standard applicable to claims of trial counsel ineffectiveness. Fisher v. State, 810
N.E.2d 674, 676-7 (Ind. 2004). The defendant must show that appellate
counsel was deficient in his performance and that the deficiency resulted in
prejudice. Id. at 677. A claim of ineffective appellate assistance generally falls
into one of three categories: (1) denial of access to an appeal; (2) waiver of
issues; or (3) failure to present issues well. Id. We employ a two-part test to
evaluate “waiver of issue” claims: (1) whether the unraised issues are significant
and obvious from the face of the record, and (2) whether the unraised issues are
“clearly stronger” than the raised issues. Id.
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[8] Because counsel has considerable discretion in choosing strategy and tactics, we
presume counsel’s assistance was adequate and all significant decisions were
made in the exercise of reasonable professional judgment. State v. Miller, 771
N.E.2d 1284, 1288 (Ind. Ct. App. 2002), reh’g denied, trans. denied. One of the
most important strategic decisions is deciding what issues to raise on appeal.
Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1998), reh’g denied, cert. denied, 525
U.S. 1021 (1998). Appellate counsel is not ineffective for declining to present a
claim that had no merit. Stowers v. State, 657 N.E.2d 194, 200 (Ind. Ct. App.
1995), trans. denied.
[9] Kopp argues his appellate counsel, Keys, was ineffective because she
erroneously advanced the argument Kopp’s two convictions of Class A felony
child molest constituted a violation of the continuing crime doctrine instead of
arguing the evidence was insufficient to support his conviction. Kopp contends
Keys should have argued the State did not present sufficient evidence he
molested L.P. between September 1, 1998, and January 17, 1999, as alleged in
Count II. He claims his “double jeopardy claim is more likened to sufficiency
of the evidence while Keys[’] double jeopardy claim is likened to [the]
continuing crime doctrine.” (Br. of Appellant at 9.)
[10] Our Indiana Supreme Court explained in Bieghler:
Claims of inadequate presentation of certain issues, when such
were not deemed waived in the direct appeal, are the most
difficult for convicts to advance and reviewing tribunals to
support. . . .
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First, these claims essentially require the reviewing tribunal to re-
view specific issues it has already adjudicated to determine
whether the new record citations, case references, or arguments
would have had any marginal effect on their previous decision.
Thus, this kind of ineffectiveness claim, as compared to the
others mentioned, most implicates concerns of finality, judicial
economy, and repose while least affecting assurance of a valid
conviction.
Second, an Indiana appellate court is not limited in its review of
issues to the facts and cases cited and arguments made by the
appellant’s counsel. We commonly review relevant portions of
the record, perform separate legal research, and often decide
cases based on legal arguments and reasoning not advanced by
either party. . . .
For these reasons, an ineffectiveness challenge resting on
counsel’s presentation of a claim must overcome the strongest
presumption of adequate assistance. Judicial scrutiny of
counsel’s performance, already “highly deferential,” Spranger v.
State, 650 N.E.2d 1117, 1121 (Ind. 1995), is properly at its
highest. Relief is only appropriate when the appellate court is
confident it would have ruled differently.
690 N.E.2d at 195-6.
[11] Kopp does not offer argument regarding why the continuing crime doctrine
argument was incorrectly presented, only that he would have instead advanced
a sufficiency of the evidence argument. In our opinion on direct appeal, we
held “[L.P.’s] testimony established that Kopp molested her on a regular basis
over a period of time that began during the summer between the victim’s
seventh and eighth grades and continued through her junior year of high
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school.” Kopp, 867 N.E.2d 288 at *1. As we do not reweigh the evidence or
judge the credibility of witnesses, Drane v. State, 867 N.E.2d 144, 146 (Ind.
2007), Kopp’s insufficiency of the evidence claim would not have been
successful. See Bieghler, 690 N.E.2d at 196 (“Relief is only appropriate when the
appellate court is confident it would have ruled differently.”). Thus, Kopp has
not demonstrated his appellate counsel was ineffective for raising an argument
regarding the continuing crime doctrine instead of arguing the State did not
present sufficient evidence he committed Class A felony child molesting. See
Stowers, 657 N.E.2d at 200 (appellate counsel is not ineffective for declining to
present a claim that would have been meritless).
[12] Kopp also argues his appellate counsel was ineffective because she did not
argue the trial court abused its discretion when it denied his motion for directed
verdict. After the State’s presentation of evidence, Kopp moved for a directed
verdict because he claimed the State failed to present evidence he was over
twenty-one years old at the time of the offenses as required by the elements of
Class A felony child molesting. “In order for a trial court to appropriately grant
a motion for a directed verdict, there must be a total lack of evidence regarding
an essential element of the crime[.]” McClendon v. State, 910 N.E.2d 826, 836
(Ind. Ct. App. 2009), trans. denied.
[13] Here, the trial court stated, when it denied Kopp’s motion for directed verdict
on the child molest charges, “I am going to deny the motion, based on the facts
in the record right now are that there was a marriage and a date of 1995, as well
as employment as a -- of -- as a firefighter.” (Trial Tr. at 87.) Kopp
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subsequently admitted during direct examination to being over twenty-one
years old at the time of the alleged crimes.
[14] Kopp argues on appeal that there was nothing in the record to suggest the State
presented evidence about “how old Kopp was when he married in 1995 nor that
he was a paid fire fighter rather than a young volunteer fireman.” (Br. of
Appellant at 12.) However, Kopp has not demonstrated this issue would have
been stronger than the issues raised. See Fisher, 810 N.E.2d at 677 (appellate
counsel is ineffective for failing to raise an issue if the issue is significant and
obvious from the record and the issue is clearly stronger than others argued on
direct appeal). Thus, he has not demonstrated his appellate counsel was
ineffective for declining to raise it.
Conclusion
[15] Kopp has not demonstrated his appellate counsel was ineffective for choosing
the issues presented in his direct appeal instead of the issues he thought were
more appropriate. Accordingly, we affirm.
[16] Affirmed.
Barnes, J., and Bradford, J., concur.
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