Tavario Baskin v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
Sep 18 2012, 8:47 am
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
court of appeals and
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ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER
Public Defender of Indiana Attorney General of Indiana
DEIDRE R. ELTZROTH JUSTIN F. ROEBEL
Assistant Chief Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TAVARIO BASKIN, )
)
Appellant-Defendant, )
)
vs. ) No. 20A03-1202-PC-79
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ELKHART CIRCUIT COURT
The Honorable Gene R. Duffin, Senior Judge
Cause No. 20C01-0811-PC-19
September 18, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Tavario Baskin appeals from the denial of his petition for post-conviction relief,
presenting the following restated issue for review: Did Baskin’s appellate counsel render
ineffective assistance in arguing aggravating and mitigating circumstances when challenging
Baskin’s sentence upon direct appeal?
We affirm.
The following underlying facts were set out in an unpublished memorandum decision
affirming Baskin’s sentence upon direct appeal:
In the early morning hours of March 2, 1996, Baskin was riding in a car
with Games Birkhead and Abjul Johnson. Matthew Middleton flagged down
their vehicle, displayed money, and asked to purchase drugs. The trio did not
have drugs to sell. Baskin, however, exited the vehicle with a handgun and
demanded Middleton’s money. A brief struggle ensued between Middleton
and Baskin over the handgun, which ultimately discharged and struck
Middleton in the abdomen. Baskin and his companions fled the scene.
Middleton died at the hospital several hours later as a result of the gunshot
wound.
On April 9, 1996, the State charged Baskin, as well as Birkhead and
Johnson, with murder. Baskin pleaded guilty on September 26, pursuant to a
plea agreement in which the State agreed to dismiss a pending charge of
robbery, a class A felony, under another cause number. Sentencing was left to
the discretion of the trial court. On October 24, 1996, the trial court sentenced
Baskin to sixty years in prison. The sentencing order sets forth the following
mitigating and aggravating factors:
The Court finds as mitigating circumstances the Defendant’s age and
lack of a prior felony conviction. The Court finds as aggravating
circumstances the fact that the Defendant was on probation as [sic] the
time of the offense; the fact that the Defendant dropped out of school in
the tenth grade; the fact that the Defendant used alcohol and drugs; the
fact that the Defendant was involved in an armed robbery with injury to
victims three (3) days after the murder; and the fact that an illegal
handgun was used in the commission of the crime. The Court finds that
the aggravating circumstances outweigh the mitigating circumstances.
Baskin v. State, No. 20A03-0609-CR-437, slip op. at 2-3 (Ind. Ct. App. Mar. 22, 2007)
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(internal footnote and citation to Appendix omitted).
In challenging his sentence upon direct appeal, Baskin argued that the trial court relied
upon two aggravating circumstances that were invalid under Blakely v. Washington, 542 U.S.
296 (2004). Blakely held that a trial court may not enhance a sentence based on additional
facts, unless those facts are either (1) a prior conviction; (2) found by a jury beyond a
reasonable doubt; (3) admitted by the defendant; or (4) found by the sentencing judge after
the defendant has waived Apprendi rights1 and consented to judicial factfinding. Baskin
argued upon direct appeal that, because a jury did not find that he was involved in an armed
robbery three days after the murder, nor that he used an illegal handgun in committing the
murder, those were not valid aggravators.
At the time of his direct appeal, however, it was not yet clear whether the Blakely rule
applied retroactively to his case. Our Supreme Court indicated in Smylie v. State, 823 N.E.2d
679 (Ind. 2005), cert. denied, 546 U.S. 976, that Blakely applied retroactively to cases
pending on direct review or not yet final at the time Blakely was announced. Baskin was
sentenced in October 1996. Blakely was decided on June 24, 2004. Baskin initiated his
direct appeal by filing a belated notice of appeal in May 2006. Although acknowledging that
his case was not pending on direct review at the time Blakely was decided, Baskin argued
that it was not final in June 2004 and thus that Blakely applied. At that time, there were
Court of Appeals opinions supporting either view, compare Robbins v. State, 839 N.E.2d
1196 (Ind. Ct. App. 2005) (holding that an appeal was “final” for Blakely purposes when the
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right to pursue a timely appeal had lapsed and that “timely” in this context did not include the
prospect of filing a belated appeal under PC–2 rules); with Boyle v. State, 851 N.E.2d 996
(Ind. Ct. App. 2006), (rejecting Robbins and concluding that a case was not yet final for
Blakely purposes if a defendant still had the option of filing a belated appeal under Post-
Conviction Rule 2 at the time Blakely was decided), vacated, 848 N.E.2d 435 (Ind. 2007).
Our Supreme Court had not yet weighed in on that question. The panel that decided Baskin’s
direct appeal opted to follow the Robbins rationale and held that the aggravators in question
did not violate Blakely and therefore were not improper. This determination was later
vindicated by our Supreme Court in Gutermuth v. State, 868 N.E.2d 427 (Ind. 2007).
Upon post-conviction, however, Baskin contends that his direct-appeal counsel’s
failed challenge under Blakely with respect to his involvement in a robbery ignored a
different challenge to that same aggravator that would have been successful. Specifically, he
claims that under a line of cases represented by Roney v. State, 872 N.E.2d 192 (Ind. Ct. App.
2007) trans. denied, when the State agrees to dismiss or forego charges in exchange for a
guilty plea, the dismissed charge cannot be used as an aggravating circumstance because it
circumvents the plea.
Post-conviction proceedings are civil in nature. Therefore, a petitioner must establish
his claims by a preponderance of the evidence. Ind. Post–Conviction Rule 1(5); Hampton v.
State, 961 N.E.2d 480 (Ind. 2012). Moreover, post-conviction procedures do not offer a
super-appeal. Instead, “‘subsequent collateral challenges to convictions must be based on
1
This refers to the holding in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000) that a criminal defendant has a
right to a jury assessment of any fact that increases the prescribed range of penalties to which he or she is
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grounds enumerated in the post-conviction rules.’” Hampton v. State, 961 N.E.2d at 491
(quoting Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002), cert. denied, 540 U.S. 830
(2003)). A petitioner appealing from the denial of post-conviction relief stands in the
position of one appealing from a negative judgment. Hampton v. State, 961 N.E.2d 480.
Therefore, the petitioner must convince us “‘that the evidence as a whole leads unerringly
and unmistakably to a decision opposite that reached by the post-conviction court.’” Id. at
492 (quoting Stevens v. State, 770 N.E.2d at 745). Put another way, we must be convinced
“that there is no way within the law that the court below could have reached the decision it
did.” Id. (quoting Stevens v. State, 770 N.E.2d at 745) (emphasis in original). “We review
the post-conviction court’s factual findings for clear error, but do not defer to its conclusions
of law.” Id.
A claim of ineffective assistance of appellate counsel is evaluated using the standard
articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668
(1984). Hampton v. State, 961 N.E.2d 480. In order to establish a claim of ineffective
assistance of counsel, a petitioner must demonstrate that counsel performed deficiently and
the deficiency resulted in prejudice. Id. (citing Strickland). In applying this standard, we
ask whether, in view of all the circumstances, counsel’s actions were “reasonable ... under
prevailing professional norms.” Strickland v. Washington, 466 U.S. at 688. Our scrutiny of
counsel’s performance must be “highly deferential.” Hampton v. State, 961 N.E.2d at 491
(quoting Strickland v. Washington, 466 U.S. at 689). Moreover, even if we deem appellate
counsel’s performance to be deficient, the petitioner will not prevail unless he or she
exposed, and that such fact must be established beyond a reasonable doubt.
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demonstrates “a reasonable probability that the outcome of the direct appeal would have been
different.” Id. Finally, the two elements of Strickland are separate and independent
inquiries. Thus, if it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, that course should be followed. Landis v. State, 749 N.E.2d 1130 (Ind.
2001).
Even accepting the dubious argument that appellate counsel’s performance was
deficient, we conclude that this would not have altered the outcome of Baskin’s appeal. The
trial court found as mitigating circumstances Baskin’s age and lack of a prior felony
conviction. Upon direct appeal, we determined that the trial court erred in failing to mention
the fact that Baskin pled guilty, but further observed that the error was harmless “[b]ecause
Baskin received a substantial benefit in exchange for his guilty plea, he was entitled to only
minimal mitigating weight for it at sentencing.” Baskin v. State, No. 20A03-0609-CR-437,
slip op. at 3. Juxtaposed against these mitigating factors were five aggravators: 1) Baskin
was on probation at the time of the offense; 2) he dropped out of school in the tenth grade; 3)
he used alcohol and drugs; 4) he used an illegal handgun in committing the murder; and 5) he
was involved in an armed robbery after the murder. We will disregard the final aggravator
for the sake of this analysis.
As we have observed, Baskin’s guilty plea was entitled to little weight. His age – less
than one month away from his eighteenth birthday – is entitled to medium weight. The final
mitigator was the fact that he had not been convicted of a felony until the present offense.
Although this is true, it is also true that by the age of seventeen, Baskin had accumulated
what the prosecutor described as “a lengthy juvenile record, which stretched back to the time
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he was 13 years of age.” Appellant’s Appendix at 112. His juvenile record included a true
finding that he committed acts that would constitute the offense of intimidation of a witness,
a class D felony if committed by an adult. In fact, he was on probation for that adjudication
when he committed the present offense. Under the circumstances, this mitigator is also
entitled to little weight.
On the other hand, the four valid aggravators were, in the aggregate, entitled to greater
weight. The fact that Baskin dropped out of school is not of significant weight. We note,
however, that the fact that a defendant was on probation at the time he or she committed the
offense, by itself, has been deemed enough to support a sentence enhancement. See Sargent
v. State, 875 N.E.2d 762 (Ind. Ct. App. 2007). In Baskin’s case, it is a significant
aggravating circumstance. The same can be said of the remaining aggravators, both of which
involved further illegal activity on Baskin’s part. Thus, even had appellate counsel prevailed
on an argument resulting in the invalidation of the commission of the additional robbery as a
valid aggravating circumstance, such would not have compelled the result that the sixty-year
sentence originally imposed was no longer sustainable. In short, there is not a reasonable
probability that the outcome of the direct appeal would have resulted in a reversal of Baskin’s
sentence because the trial court’s finding that the aggravating circumstances outweigh the
mitigating circumstances would not be appreciably undermined. See Hampton v. State, 961
N.E.2d 480. Baskin did not receive ineffective assistance of appellate counsel and the post-
conviction court did not err in denying Baskin’s petition premised upon that claim.
Judgment affirmed.
BROWN, J., and PYLE, J., concur.
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