Michael Heffern v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Jul 22 2016, 9:52 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana
Indianapolis, Indiana
George P. Sherman
Steven H. Schutte
Deputy Attorney General
Deputy Public Defender
Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Heffern, July 22, 2016
Appellant-Petitioner, Court of Appeals Cause No.
38A02-1509-PC-1325
v. Appeal from the Jay Circuit Court
The Honorable Brian D.
State of Indiana, Hutchison, Judge
Appellee-Respondent. Trial Court Cause No.
38C01-1109-PC-2
Barnes, Judge.
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Case Summary
[1] Michael Heffern appeals the post-conviction court’s denial of his petition for
post-conviction relief challenging convictions for murder and Class B felony
robbery. We affirm.
Issue
[2] The issue before us is whether Heffern received effective assistance of appellate
counsel.
Facts
[3] On September 7, 2008, Michael Heffern and Joseph Randall went to Tina
Whiting’s home in Portland, Indiana, to watch a football game with Whiting,
Addison Pijnappels, Addison’s husband, Tom Smith, and Rod Berry. Whiting
told Heffern there was a man, Shawn Buckner, with whom she was having
problems. Heffern asked Whiting if she wanted him to beat up Buckner.
Whiting told Heffern that if he assaulted Buckner, he might be able to take
some pills from Buckner. Heffern and those present at the party discussed
beating Buckner and taking his pills.
[4] After they all agreed to assault Buckner, Whiting and Pijnappels left to find
Buckner. The two women lured Buckner to Whiting’s residence by promising
to have a sexual encounter with him. Heffern, Berry, and Smith hid in
Whiting’s home until the women returned with Buckner. After Buckner
entered the house, Heffern began assaulting him. Buckner tried to resist, but
Berry grabbed him and began hitting him as well. Buckner also tried to escape
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from the men’s grasp and tried to run, but Smith pushed Buckner, causing him
to fall to the floor in the kitchen. The men then started kicking Buckner to
prevent him from standing up. As Buckner moaned, the men continued to kick
and punch him numerous times while lying on the floor. The men then
removed Buckner’s clothing and found he had $20. Smith gave the money to
Pijnappels and told her to go get more beer. Smith indicated he was going to
cut off Buckner’s penis, but Heffern stated he should not.
[5] The men wrapped Buckner in a blanket and carried him out to Berry’s vehicle.
While driving around, Heffern punched Buckner numerous times to stop his
moaning. The men stopped at a cornfield, and Heffern and Smith took
Buckner into the field, where Buckner was stabbed to death. The men returned
to Whiting’s home and began cleaning up the house to eliminate evidence of
the assault. The clothing that the men wore during the attack were placed in a
trash bag and later burned in a corn field.
[6] Heffern was subsequently convicted of murder and Class B felony robbery. At
Heffern’s sentencing hearing, the trial court identified a number of aggravating
factors. Based on the aggravating factors, the trial court imposed an additional
five years above the advisory sentence on each count and ordered the terms to
run consecutively for an aggregate sentence of seventy-five years. Heffern
appealed his conviction. The issues Heffern’s attorney raised on direct appeal
were whether: (1) the trial court properly allowed the State to amend the
charging information, changing count 2 from robbery resulting in serious bodily
injury to robbery while armed with a deadly weapon; (2) the trial court abused
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its discretion when it admonished the jury regarding police officers’ statements
on a videotape and corresponding transcript admitted into evidence but did not
give a similar preliminary or final instruction; (3) the evidence was sufficient to
support Heffern’s convictions; and (4) the entry of judgment of conviction for
murder and robbery with a deadly weapon violated Heffern’s constitutional
right to be free from double jeopardy. We affirmed in a memorandum decision,
and our supreme court denied transfer. Heffern v. State, No. 38A05-1007-CR-
462 (Ind. Ct. App. Apr. 26, 2011), trans. denied.
[7] Heffern filed a post-conviction relief petition, claiming he received ineffective
assistance of appellate counsel because at the hearing on Heffern’s petition,
Heffern’s appellate counsel testified that he did not argue that the trial court
found and weighed an improper aggravating circumstance in determining
Heffern’s sentence. Counsel believed he might have discussed with Heffern the
risk that this court might increase Heffern’s sentence. Heffern testified that he
and his counsel did not discuss that risk. The post-conviction court entered
findings of fact and conclusions thereon denying Heffern’s petition. Heffern
now appeals the post-conviction court’s denial of his petition for post-
conviction relief.
Analysis
[8] Heffern argues that the post-conviction court’s denial of his petition is clearly
erroneous. “The petitioner in a post-conviction proceeding bears the burden of
establishing grounds for relief by a preponderance of the evidence.” Ind. Post–
Conviction Rule 1(5). “When appealing from the denial of post-conviction
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relief, the petitioner stands in the position of one appealing from a negative
judgment.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). We review a post-
conviction courts’ factual findings under a “clearly erroneous” standard and do
not defer to any legal conclusions. Huddleston v. State, 951 N.E.2d 277, 280
(Ind. Ct. App. 2011), trans. denied. We do not reweigh the evidence or judge the
witnesses’ credibility and will examine only the probative evidence and
reasonable inferences that support the post-conviction court’s decision. Id. We
must determine if the court’s findings are sufficient to support the judgment. Id.
[9] Heffern contends that his appellate counsel was ineffective because he failed to
raise a sentencing argument on direct appeal. “To establish a post-conviction
claim alleging the violation of the Sixth Amendment right to effective assistance
of counsel, a defendant must establish before the post-conviction court the two
components set forth in Strickland v. Washington, 466 U.S. 668 (1984).” Kubsch
v. State, 934 N.E.2d 1138, 1147 (Ind. 2010). A petitioner must demonstrate
both that his counsel’s performance was deficient and that the petitioner was
prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102,
106 (Ind. 2000).
[10] A counsel’s performance is deficient if it falls below an objective standard of
reasonableness based on prevailing professional norms. French v. State, 778
N.E.2d 816, 824 (Ind. 2002). “Further, counsel’s performance is presumed
effective, and a defendant must offer strong and convincing evidence to
overcome this presumption.” Kubsch, 934 N.E.2d at 1147. To meet the
appropriate test for prejudice, the petitioner must show that there is a
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reasonable probability that, but for counsels unprofessional errors, the result of
the proceeding would have been different. Id. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694. Failure to satisfy either prong will cause the claim to fail. Grinstead
v. State, 845 N.E.2d 1027, 1031 (Ind. 2006).
[11] “The standard of review for appellate counsel is the same as for trial counsel in
that the defendant must show appellate counsel was deficient in his
performance and that the deficiency resulted in prejudice.” Garrett v. State, 992
N.E.2d 710, 719 (Ind. 2013). Ineffective assistance of appellate counsel claims
generally fall into three basic categories: (1) denial of access to an appeal; (2)
waiver of issues; and (3) failure to present issues well. Reed v. State, 856 N.E.2d
1189, 1195 (Ind. 2006). Heffern argues that his appellate counsel failed to raise
an issue on appeal, resulting in waiver. To show that counsel was ineffective
for failing to raise an issue on appeal thus resulting in waiver for collateral
review, the defendant must overcome the strongest presumption of adequate
assistance, and judicial scrutiny is highly deferential. Id. “To evaluate the
performance prong when counsel waived issues upon appeal, we apply the
following test: (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. (quoting Timberlake v. State, 753 N.E.2d 591, 605-06
(Ind. 2001), cert. denied).
[12] “If the analysis under this test demonstrates deficient performance, then we
examine whether, ‘the issues which . . . appellate counsel failed to raise, would
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have been clearly more likely to result in reversal or an order for a new trial.’“
Id. (quoting Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997), cert. denied).
Further, we must consider the totality of an attorney’s performance to
determine whether the client received constitutionally adequate assistance. Id.
at 1195-96. Ineffective assistance is very rarely found in cases where a
defendant asserts that appellate counsel failed to raise an issue on direct appeal.
Id. at 1196. One reason for this is that the decision of what issues to raise is one
of the most important strategic decisions to be made by appellate counsel. Id.
[13] Here, the trial court identified seven aggravating factors at Heffern’s sentencing
hearing. These factors caused the trial court to impose an additional five years
above the advisory sentence on each count and to order the terms to run
consecutively for an aggregate sentence of seventy-five years. These
aggravating factors included: (1) Heffern had a significant and lengthy criminal
record; (2) the heinous nature of the offenses, including the beating, torture,
repeated stabbing, and mutilation of the victim’s body; (3) Heffern had a lead
role in committing the offenses; (4) Heffern assisted in planning the offenses; (5)
Heffern lay in wait to commit crimes; (6) Heffern’s continued brutality against
the victim after the robbery had been completed; and (7) the apparent effort to
paint the victim as a perpetrator against children while Heffern himself had
committed prior offenses against children.
[14] Heffern contends that appellate counsel was ineffective because he should have
argued that the trial court erred in identifying as an aggravator the apparent
effort to paint the victim as a perpetrator against children while Heffern himself
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had committed prior offenses against children. We do not find that appellate
counsel was ineffective. In Garrett v. State, our supreme court concluded that
“although the trial court erred in finding one improper aggravating
circumstance, other valid aggravators remain including a history of delinquent
activity as evidenced by Garrett’s juvenile record and his admission at trial that
he regularly dealt crack cocaine.” 714 N.E.2d 618, 623 (Ind. 1999). “A single
aggravating circumstance may be sufficient to support an enhanced sentence.”
Id. Even if one of the aggravating factors in Heffern’s case was improper,
appellate counsel could have reasonably determined that challenging that
aggravating factor would not have provided Heffern with any relief because
Heffern’s sentence was supported by six other aggravating factors.
[15] On direct appeal, Heffern raised four issues which were whether: (1) the trial
court properly allowed the State to amend the charging information, changing
count 2 from robbery resulting in serious bodily injury to robbery while armed
with a deadly weapon; (2) the trial court abused its discretion when it
admonished the jury regarding police officers’ statements on a videotape and
corresponding transcript admitted into evidence but did not give a similar
preliminary or final instruction; (3) the evidence was sufficient to support
Heffern’s convictions; and (4) the entry of judgment of conviction for murder
and robbery with a deadly weapon violated Heffern’s constitutional right to be
free from double jeopardy. Heffern has failed to show that the unraised issue
was significant and obvious from the face of the record and that the unraised
issue is “clearly stronger” than the raised issues. Thus, his counsel’s
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performance was not deficient, and he was not prejudiced by the alleged
deficient performance.
[16] Given that Heffern has failed to demonstrate he received ineffective assistance
of appellate counsel, we conclude that the post-conviction court properly denied
Heffern’s petition for post-conviction relief.
Conclusion
[17] The post-conviction court properly denied Heffern’s petition for post-conviction
relief. We affirm.
[18] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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