Michael A. Highbaugh v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Apr 24 2019, 8:38 am
regarded as precedent or cited before any
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.
APPELLANT, PRO SE ATTORNEYS FOR APPELLEE
Michael Highbaugh Curtis T. Hill, Jr.
Carlisle, Indiana Attorney General of Indiana
Ian McLean
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael A. Highbaugh, April 24, 2019
Appellant-Respondent, Court of Appeals Case No.
49A02-1710-PC-2326
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark D. Stoner,
Appellee-Petitioner. Judge
The Honorable Jeffrey L. Marchal,
Magistrate
Trial Court Cause No.
49G06-9712-PC-183229
Pyle, Judge.
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Statement of the Case
[1] Michael Highbaugh (“Highbaugh”) appeals the denial of his petition for post-
conviction relief. Finding no error, we affirm the post-conviction court’s denial
of Highbaugh’s petition.
[2] We affirm.
Issue
The sole issue for our review is whether the post-conviction court
erred in denying Highbaugh’s petition for post-conviction relief.
Facts
[3] The underlying facts in this case, taken from the Indiana Supreme Court’s
opinion in Highbaugh’s direct appeal, are as follows:
On the evening of December 11, 1997, David Hairston was at his
home in Indianapolis, as were twenty-year-old Khalalah and
fifteen-year-old Michael. When the doorbell rang, Khalalah
answered and observed two men, one of whom was wearing a
police uniform. She also observed a police car. The two men
entered the foyer uninvited and requested to search Hairston’s
home, indicating that other officers were en route with a warrant.
Hairston refused to let the men search his home until the warrant
arrived and told them to wait outside. When they refused,
Hairston demanded their names and badge numbers. The
uniformed officer stated that his name was “Thompson.”
Hairston asked “Thompson” where his name badge was, to
which the officer replied he was not wearing his badge. Hairston
then brushed aside the officer’s coat and saw a nametag that read
“Powell.”
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The man wearing civilian clothing (later identified as Highbaugh)
then pulled out a gun and put it to Hairston’s head. After
Hairston refused Highbaugh’s demands to lie down on the floor,
Highbaugh shot him in the head. He died as a result.
In the meantime, Khalalah and Michael ran from the foyer into
the kitchen. Highbaugh chased them and shot Michael in the
head. The resulting wound was not fatal, and Michael lay
motionless pretending to be dead. Highbaugh then placed the
barrel of the gun against Khalalah’s head and pulled the trigger.
When it misfired, Highbaugh grabbed a knife and stabbed
Khalalah in the neck approximately ten times. She survived.
While motionless on the kitchen floor, Michael saw [Myron]
Powell [(“Powell”)] run to the back of the house. After several
minutes, he saw Powell run out the door carrying several bags.
Highbaugh v. State, 773 N.E.2d 247, 250 (Ind. 2002).
[4] In December 1997, the State charged Highbaugh with murder, felony murder,
two counts of attempted murder, robbery, and carrying a handgun without a
license. In early 1998, the State filed an habitual offender enhancement and a
request for the death penalty. Two attorneys were appointed to represent
Highbaugh.
[5] In February 2000, Highbaugh and the State entered into a plea agreement,
which provided that, in exchange for Highbaugh’s guilty plea to murder and
two counts of attempted murder, the State would drop the remaining charges
and the habitual offender enhancement. Highbaugh also promised to cooperate
fully and truthfully with the State in the prosecution of his co-defendant,
Powell. The agreement further provided that if Highbaugh failed to cooperate
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in Powell’s prosecution, the State reserved the right to withdraw from the
agreement. In addition, the plea agreement provided a sentencing range of
sixty-five years to life without parole, which would be decided by the trial court
after a sentencing hearing.
[6] At the guilty plea hearing held that same day, Highbaugh told the trial court
that he understood that he was pleading guilty to murdering Hairston and
attempting to murder Khalalah and Michael and that he was admitting the
truth and the facts of the murder and attempted murder charges. He also stated
that he understood that the remaining charges would be dismissed and that
after a sentencing hearing, the trial court would sentence him within a range
from sixty-five years to life without parole. The trial court also reviewed the
provision of the agreement regarding Highbaugh’s cooperation with the State in
its case against Powell, which Highbaugh also said that he understood.
Highbaugh assured the trial court that he had reviewed the plea agreement with
his attorneys before he had signed and initialed it, that he had had sufficient
time to discuss his case with them, and that he was satisfied with their
performance on his behalf.
[7] The trial court explained to Highbaugh that his trial was scheduled to begin in
three days. The trial court also explained Highbaugh’s sentencing exposure to a
term of years, to life without parole, or to death if he was tried and convicted at
trial. Highbaugh told the trial court that he understood these matters and had
had sufficient time to discuss them with his attorneys before pleading guilty.
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[8] Also at the guilty plea hearing, the trial court asked Highbaugh’s attorneys if,
based on their discussions with Highbaugh, they had had the opportunity to
discuss the possible penalties that he faced in connection with the case and
under the terms of the plea agreement, and they confirmed that they had. The
trial court also asked the attorneys if they believed that he understood all rights
and possible sentences in connection with the case, and they responded that
they did. Both attorneys also told the trial court that they would have been
prepared to try the case three days later.
[9] Thereafter, the State set forth the following factual basis for the charges:
[H]ad this matter gone to trial, the State would have called
Khalalah Ector . . . who would have testified that on December
11th of 1997 she was at a home located at 4307 North Sunshine
Avenue in Indianapolis, Marion County, Indiana. Ms. Ector
would testify that she believed that home to be occupied by a
person known to her as David C. Hairston . . . Ms. Ector would
testify that at approximately 10:30 on December 11th of 1997 two
men appeared at the door of that home, the door which she
answered. One of those men was in full police uniform and she
later identified that person as Myron Powell. The other man
who was at that door, Ms. Ector later identified as Michael
Highbaugh. Ms. Ector would testify that the two men engaged in
conversation with David Hairston, who was the occupant of the
home, and at some point during the conversation the Defendant,
Michael Highbaugh, produced a handgun, firing two shots at
David Hairston. Medical testimony would show that those two
gunshots killed David Hairston. Ms. Ector would further testify
that she observed the Defendant, Michael Highbaugh, fire a shot
at her cousin, Michael Ector, who was also at that home and that
shot did strike Michael Ector. Ms. Ector would also testify that
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the Defendant, Michael Highbaugh, grabbed a knife from the
kitchen and stabbed her about the neck and throat area.
(PCR App. Vol. 2 at 66-67). When the State completed the factual basis, the
trial court asked Highbaugh if the factual basis was true, and Highbaugh
responded that it was.
[10] At the end of the guilty plea hearing, the trial court concluded that Highbaugh’s
guilty plea had been freely and voluntarily given with a full understanding of
the charges and penalties. The trial court accepted Highbaugh’s plea and
ordered the preparation of a presentence report. The trial court and the parties
then discussed setting Highbaugh’s sentencing hearing after Powell’s scheduled
trial.
[11] In March 2000, when Highbaugh refused to answer questions during a
deposition taken by Powell’s counsel, counsel filed a motion to hold Highbaugh
in contempt. The following week, Highbaugh refused to participate in the
preparation of his presentence investigation report and told the officer assigned
to complete the report that “he was going to reject the [p]lea [a]greement
‘because [he] didn’t do the crime.’” (Supp. Tr. Vol. 1 at 9). Highbaugh again
refused to participate in a rescheduled meeting with the officer in April 2000.
[12] Also in April 2000, Highbaugh filed a pro se motion to withdraw his guilty plea
wherein he stated that he had had time to reflect on the guilty plea and wanted
to withdraw it and go to trial on the original charges. Highbaugh specifically
alleged that “he [had been] forced and lied to in order to take the plea
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agreement” and that his attorneys had “used family to influence [the] signing of
[the] plea.” (Tr. Vol. 5 at 1219). He further alleged that he felt that he was “not
being properly represented by his counsel” and that there had been “prejudice
and bias acts committed against him in the court room.” (Tr. Vol. 5 at 1219).
Highbaugh listed no specific examples in support of his allegations.
[13] The trial court held a sentencing hearing later that month. At the beginning of
the hearing, the trial court addressed Highbaugh’s motion to withdraw his
guilty plea and asked Highbaugh to “tell [it] whatever [he] want[ed] [it] to hear
regarding [his] motion.” (Tr. Vol 6 at 1258-59). Highbaugh responded that he
had been “pressured and coerced by [his] attorneys to sign the plea agreement”
and he had “lied” to the trial court because he had been told that “when the
Presentence people come that I could tell them that I didn’t do it[.]” (Tr. Vol. 6
at 1259). The trial court then asked Highbaugh’s attorneys whether they
believed that Highbaugh had “made a knowing and voluntary waiver of his
rights when he pled guilty in this case.” (Tr. Vol. 6 at 1260). Both attorneys
responded affirmatively. The trial court concluded that there was “no doubt in
[its] mind . . . [that Highbaugh] knew exactly what [he was] doing . . . when
[he] entered into this plea agreement,” and denied Highbaugh’s petition to
withdraw his guilty plea. (Tr. Vol. 6 at 1260).
[14] The next stage of the sentencing hearing focused on the statutory aggravator
that Hairston’s murder was committed during the commission of a robbery.
Specifically, at this point, one of Highbaugh’s attorneys “move[d] to exclude
any evidence . . . that [was] not related to the statutory aggravator, that being an
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intentional killing during the commission of a [r]obbery.” (Tr. Vol. 6 at 1261).
The trial court granted the motion and heard testimony that after the shootings,
Powell ran out of the apartment with a zip-lock bag of marijuana and a brown
grocery bag. Following the testimony, the trial court concluded that the State
had proved beyond a reasonable doubt that Highbaugh had killed Hairston
during the commission of a robbery. The trial court sentenced Highbaugh to
life without the possibility of parole for the murder conviction.
[15] The final stage of the sentencing hearing focused on the sentences for the
attempted murder convictions. After hearing testimony, the trial court found
the following aggravating factors: (1) Highbaugh’s prior criminal history,
which included three felonies; (2) his prior attempts at rehabilitation had been
unsuccessful; (3) Highbaugh’s probation has been revoked in the past; (4)
Highbaugh was in need of correctional or rehabilitative treatment that could
best be provided by commitment to a penal facility; (5) the facts and
circumstances of the case, including the attempt to eliminate three witnesses,
the commission of a robbery during the attempted killings, and the fact that the
two attempted murder victims suffered from protracted impairment. The trial
court also found the following two mitigating factors: (1) Highbaugh had the
support of family and friends; and (2) Highbaugh was emotionally and
physically abused as a child. “Weighing these matters out,” the trial court
sentenced Highbaugh to fifty years for each attempted murder conviction and
ordered the sentences to run consecutive to each other and with the life without
parole sentence. (Tr. Vol. 6 at 1375).
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[16] Two days after the sentencing hearing, the trial court held a hearing on Powell’s
motion to hold Highbaugh in contempt. Following the hearing, the trial court
ordered Highbaugh to answer Powell’s questions and told him that if he refused
to do so, he could be found in contempt and sentenced for up to six months in
jail and fined up to $500. When Highbaugh told the trial court that he was
going to remain silent, the trial court found him to be in contempt, sentenced
him to six months in jail concurrent with the sentence he was serving, and fined
him $500.
[17] Highbaugh appealed his sentence and the finding of contempt. He argued that
the trial court had erred by ordering the sentences for his attempted murder
convictions to run consecutive to his life without parole sentence, and that the
trial court’s sentencing order was deficient because it had not specified and
articulated the balancing of aggravating and mitigating circumstances. Before
the Indiana Supreme Court had ruled on these issues, the trial court issued an
amended sentencing order specifying that Highbaugh’s sentences for attempted
murder would be served consecutively to each other but concurrently with the
life without parole sentence. The Indiana Supreme Court subsequently issued
an order noting that the trial court had “corrected the first problem . . . but [had
taken] no action with regard to the second problem: the specificity of the
sentencing order[.]” (P.C.R. App Vol. 2 at 207). The Court remanded
Highbaugh’s case to the trial court for entry of a new sentencing order, which
could be appealed with supplemental briefs. In June 2001, the trial court issued
more specific findings and conclusions on the life without parole sentence.
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[18] In his direct appeal, Highbaugh raised four issues. He first argued that there
was insufficient evidence to support his life without parole sentence for the
murder of Hairston. Specifically, he contended that the State had failed to
prove that he had committed an intentional killing during the commission of a
robbery. According to Highbaugh, the State had failed to establish that any
property of value had been taken and had failed to prove that any property was
taken from the presence of Hairston. The Indiana Supreme Court disagreed,
pointed out that Highbaugh and Powell had left Hairston’s house with
packaged marijuana and other bags, and concluded that there was sufficient
evidence to support the statutory aggravator. Highbaugh, 773 N.E.2d at 251.
[19] Secondly, Highbaugh contended on appeal that the trial court had wrongfully
rejected the following proffered mitigators: (1) Hairston facilitated the offense;
(2) Highbaugh was under Powell’s control; (3) Highbaugh’s life without parole
sentence was not proportional to Powell’s sixty-five year sentence; and (4)
Powell was not found guilty of robbery. Third, he argued that his life sentence
was manifestly unreasonable. The Indiana Supreme Court concluded that the
trial court did not abuse its discretion in rejecting these mitigators and that
Highbaugh’s sentence was not manifestly unreasonable. Id. at 252-53.
[20] Lastly, Highbaugh argued that the trial court erred when it found him in
contempt for refusing to answer questions from Powell’s counsel. Highbaugh
specifically argued that he could not be ordered to provide testimony in
Powell’s case because he possessed a Fifth Amendment right to remain silent so
as not to incriminate himself. The Indiana Supreme Court concluded that
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because Highbaugh had expressed his intent to appeal his life sentence, he may
have retained his privilege with regard to the statutory aggravator. Id. at 254.
However, the privilege would have extended only to questions that could
incriminate him on that matter, and Highbaugh could have answered any
number of questions without further incriminating himself. Id. Because he
refused to answer any questions, the trial court could properly find him in
contempt. Id. The Indiana Supreme Court affirmed both Highbaugh’s
convictions and sentence.
[21] Highbaugh filed a petition for post-conviction relief in February 2003 and later
withdrew it. He filed a second petition in May 2016, and amended it in June
2016 and in March 2017. The post-conviction court held a hearing on
Highbaugh’s amended petition in May 2017. Highbaugh did not testify or call
any witnesses. He told the post-conviction court that he just “need[ed] to enter
some things on the record.” (P.-C.R. Tr. at 3). The post-conviction court asked
Highbaugh if he was going to “pursue a Petition for Post-Conviction Relief
alleging ineffective assistance of counsel without calling [his] counsel.” (P.-
C.R. Tr. at 7). Highbaugh responded that he was because “everything that [he
was] alleging [was] on the record.” (P.-C.R. Tr. at 7).
[22] In September 2017, the post-conviction court issued a detailed fourteen-page
order denying Highbaugh’s petition. Highbaugh now appeals.
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Decision
[23] At the outset, we note that Highbaugh 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. 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). We now turn to the merits
of Highbaugh’s argument that the post-conviction court erred in denying his
petition.
[24] A petitioner who has been denied post-conviction relief faces a rigorous
standard of review. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001). As such,
the petitioner must convince the court on review that the evidence as a whole
leads unerringly and unmistakably to a decision opposite that reached by the
post-conviction court. Id. at 170. Stated differently, this Court will disturb a
post-conviction court’s decision as being contrary to law only where the
evidence is without conflict and leads to but one conclusion, and the post-
conviction court has reached the opposite conclusion. Id. Further, the
reviewing court accepts the post-conviction court’s findings of fact unless
clearly erroneous. Id.
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1. Insufficient Factual Basis
[25] Highbaugh first argues that the post-conviction court erred in denying his
petition because there was an insufficient factual basis to support his plea of
guilty to murder. Specifically, he contends that the factual basis should have
included facts regarding the commission of a robbery.
[26] A trial court may not accept a plea of guilty unless it determines that a sufficient
factual basis exists to support the plea. Dewitt, 755 N.E.2d at 172 (citing IND.
CODE § 35-35-1-3). A factual basis exists where there is evidence about the
elements of the crime from which a trial court could reasonably conclude that
the defendant is guilty. Dewitt at 172. The factual basis of a guilty plea need
not be established beyond a reasonable doubt. Id. Rather, relatively minimal
evidence can be adequate. Id. In addition, to be entitled to post-conviction
relief, the defendant must prove that he was prejudiced by the lack of a factual
basis. Id.
[27] Here, our review of the charging information reveals that the State charged
Highbaugh with murder for knowingly killing Hairston by shooting him with a
handgun. At the guilty plea hearing, the factual basis provided that Highbaugh
shot Hairston, and that Hairston died as a result of the gunshot. This is
sufficient evidence for the trial court to reasonably conclude that Highbaugh
was guilty of murder. To the extent that Highbaugh argues that the factual
basis is insufficient because the “State made no mention of a commission of a
robbery,” he is mistaken. (Appellant’s Br. at 19). The commission of a robbery
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is not an element of murder.1 Rather, as the State correctly points out, the
commission of a robbery during a murder is a statutory aggravating sentencing
factor for the death penalty or a life without parole sentence. See IND. CODE 35-
50-2-9. In Highbaugh’s direct appeal, the Indiana Supreme Court found that
there was sufficient evidence set forth in Highbaugh’s sentencing hearing to
support this statutory aggravating factor and Highbaugh’s life without parole
sentence.2
2. Ineffective Assistance of Appellate Counsel
[28] Highbaugh also argues that his appellate counsel was ineffective. To prevail on
a claim of ineffective assistance of appellate counsel, a petitioner must
demonstrate both that his counsel’s performance was deficient and that the
petitioner was prejudiced by the deficient performance. Mitchell v. State, 946
N.E.2d 640, 643 (Ind. Ct. App. 2011), trans. denied. Counsel’s performance is
deficient if it falls below an objective standard of reasonableness based on
1
We note that commission of a robbery or another offense, is an element of felony murder, and this language
was included in Highbaugh’s felony murder charging information. (Tr. Vol. 1 at 107) (alleging that
Highbaugh shot Hairston while committing or attempting to commit a robbery). However, the felony
murder charge was dismissed pursuant to the terms of the plea agreement.
2
Highbaugh also argues that: (1) his trial counsel was ineffective for allowing the trial court to accept his
guilty plea that was not supported by a factual basis; and (2) his plea was unknowingly, involuntary, and
unintelligent because counsel failed to tell him that the commission of a robbery was an element of murder
that the State had to prove. These arguments fail because we have already determined that commission of a
robbery is not an element of murder.
We further note that Highbaugh’s cursory allegation that his guilty plea was not voluntary because his
counsel did not advise him that he could receive an additional one-hundred years beyond the terms of his
guilty plea. This issue became moot before Highbaugh’s direct appeal was decided when the trial court
corrected its initial consecutive sentencing order and ordered the attempted murder convictions to run
concurrently with the life without parole sentence.
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prevailing professional norms. Id. To show prejudice, the petitioner must
establish a reasonable probability that, but for counsel’s 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.
Id.[29] The standard of review for a claim of ineffective assistance of appellate counsel
is the same as for trial counsel. Id. at 644. There are three ways in which
appellate counsel may be considered ineffective: (1) when counsel’s actions
deny the defendant his right of appeal; (2) when counsel fails to raise issues that
should have been raised on appeal; (3) when counsel fails to present claims
adequately and effectively such that the defendant is in essentially the same
position after appeal as he would be had counsel waived the issue. Id. To
establish deficient performance for failing to raise an issue, the petitioner must
show that the unraised issue was clearly stronger than the issues that were
raised. Id.[30] Here, Highbaugh argues that his appellate counsel failed to raise four issues that
should have been raised in his direct appeal. He first argues that appellate
counsel was ineffective for failing to argue that the trial court abused its
discretion when it imposed “an additional hundred (100) years beyond his life
without parole sentence[.]” (Highbaugh’s Br. at 29). However, appellate
counsel raised this issue on direct appeal, and the trial court corrected its error
before the direct appeal was decided. This issue is therefore res judicata. See
Ben-Yisrayl v. State, 738 N.E.2d 253, 259 (Ind. 2000) (explaining that when an
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appellate court decides an issue on direct appeal, the doctrine of res judicata
precludes its review in post-conviction proceedings).
[31] Highbaugh also argues that appellate counsel was ineffective for failing to
challenge the denial of Highbaugh’s motion to withdraw his guilty plea.
Highbaugh appears to argue that his refusal to answer Powell’s counsel’s
questions at the deposition was a breach of the plea agreement that required the
trial court to vacate his guilty plea. Highbaugh has waived appellate review of
this argument because his brief, conclusory argument is supported neither by
citation to authority nor cogent argument. See Smith v. State, 822 N.E.2d 193,
202-03 (Ind. Ct. App. 2005) (“Generally, a party waives any issue raised on
appeal where the party fails to develop a cogent argument or provide adequate
citation to authority and portions of the record.”), trans. denied. Waiver
notwithstanding, we find no error. The plea agreement provided that the State
reserved the right to withdraw from the agreement if Highbaugh failed to
cooperate in Powell’s prosecution. Nothing in the agreement required the trial
court to vacate Highbaugh’s guilty plea. Appellate counsel was not ineffective
for failing to challenge the denial of Highbaugh’s motion to withdraw his guilty
plea.3
3
Highbaugh also argues that appellate counsel was ineffective for failing to argue that the trial court erred in
holding him in contempt for failure to answer Powell’s counsel’s questions where the terms of the plea
agreement required the trial court to vacate the guilty plea. This argument fails because we have already
determined that nothing in the plea agreement required the trial court to vacate the plea agreement.
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[32] Highbaugh next argues that appellate counsel was ineffective because he failed
to argue on appeal that the State failed to prove beyond a reasonable doubt the
statutory sentencing aggravator of robbery for the purposes of his life without
parole sentence. However, our review of Highbaugh’s direct appeal reveals that
appellate counsel raised this issue, and the Indiana Supreme Court concluded
that there was sufficient evidence to support the aggravator. This issue is
therefore res judicata. See Ben-Yisrayl, 738 N.E.2d at 259.
[33] Affirmed.
Najam, J., and Crone, J., concur.
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