Tracey L. Wheeler, Jr. v. State of Indiana

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANDREW C. MATERNOWSKI GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
Sep 04 2014, 9:27 am
IN THE
COURT OF APPEALS OF INDIANA
TRACEY L. WHEELER, JR., )
)
Appellant-Petitioner, )
)
vs. ) No. 84A01-1404-PC-153
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable John T. Roach, Judge
Cause No. 84D01-0908-PC-2503
September 4, 2014
OPINION - FOR PUBLICATION
BAILEY, Judge
Case Summary
Petitioner Tracey L. Wheeler, Jr. (“Wheeler”) appeals the denial of his petition for
post-conviction relief, which challenged his convictions for Dealing in Cocaine1 and
Maintaining a Common Nuisance.2 We affirm.
Issue
Wheeler presents the issue of whether he was denied the effective assistance of
appellate counsel because appellate counsel declined to allege that Wheeler had been denied
his right of self-representation.
Facts and Procedural History
On September 21, 2007, the State charged Wheeler with several drug-related offenses.
Three days later, public defender Angela Bullock (“Bullock”) entered her appearance to
represent Wheeler. Nonetheless, Wheeler filed a pro-se motion for a speedy trial.
Bullock represented Wheeler at a hearing on his pro-se motion for a speedy trial. On
November 20, 2007, Wheeler sent a letter to the trial court expressing his frustration with
Bullock and again requesting a speedy trial. On December 12, 2007, Wheeler wrote to the
trial court to lodge a complaint against Bullock and request appointment of a lawyer “who
will represent me to the fullest[.]” (App. 341.) In late January, Bullock filed a motion to
suppress evidence and a motion to compel discovery on Wheeler’s behalf. Daniel L. Weber
(“Weber”), also a public defender, entered his appearance as co-counsel for Wheeler on
1
Ind. Code § 35-48-4-1.
2
I.C. § 35-48-4-13.
2
January 25, 2008.
Bullock sought a continuance of Wheeler’s trial, a decision with which Wheeler
strongly disagreed. He then filed several pro-se motions and letters. On February 19, 2008,
Wheeler filed a motion requesting “an Appellant lawyer to file a Notice of Appeal to appeal
the court’s decision on granting the continuance of my fast and speedy trial because I can’t
go Pro Se.” (App. 456.) Weber then filed, on Wheeler’s behalf, a motion for a speedy trial.
The motion was granted.
On April 2, 2008, Wheeler filed a letter requesting permission to fire his lawyer and
represent himself. Bullock withdrew her appearance and Weber remained as counsel for
Wheeler. On May 20, 2008, Wheeler filed another letter, wherein he advised the trial court
that he had written to the head Public Defender and requested a new lawyer or, alternatively,
the invocation of his right of self-representation. On May 23, 2008, he filed an additional
letter, advising that he had requested in vain that his lawyer subpoena certain witnesses, and
expressing dissatisfaction with his attorney’s availability.3 He contemporaneously filed his
“Motion for Dismissal of Attorney for Ineffectiveness.” (App. 372.) He requested that the
trial court find “just cause as to the Dismissal of the current assigned attorney.” (App. 373.)
The motion for dismissal for ineffectiveness was denied.4
Wheeler proceeded to trial on July 21, 2008, with the assistance of court-appointed
counsel. He was convicted and sentenced to thirty-five years imprisonment.
3
In total, Wheeler filed at least thirteen letters directing the trial court’s attention to performance of counsel.
4
Wheeler filed disciplinary complaints against Bullock and Weber with the Disciplinary Commission of the
Indiana Supreme Court.
3
Wheeler appealed, with the assistance of court-appointed counsel John Pinnow
(“Pinnow”). Pinnow raised a single issue for review, whether the trial court abused its
discretion by admitting evidence obtained pursuant to an allegedly invalid search warrant.
Wheeler’s convictions were affirmed. Wheeler v. State, 84A01-0809-CR-412 (Ind. Ct. App.
July 7, 2009).
On April 20, 2010, Wheeler filed a pro-se petition for post-conviction relief, raising
numerous claims. On October 23, 2013, with the assistance of counsel, Wheeler withdrew
all claims other than one predicated upon his alleged assertion of his right of self-
representation. The parties agreed to forego an evidentiary hearing, stipulating that the post-
conviction court would “take judicial notice of the entire trial court file” and also consider
Pinnow’s affidavit. (App. 552.) On March 10, 2014, Wheeler’s petition for post-conviction
relief was denied. He now appeals.
Discussion and Decision
Standard of Review
The petitioner in a post-conviction proceeding bears the burden of establishing the
grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);
Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing from the denial of post-
conviction relief, the petitioner stands in the position of one appealing from a negative
judgment. Id. On review, we will not reverse the judgment of the post-conviction court
unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite
that reached by the post-conviction court. Id. A post-conviction court’s findings and
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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. Id. In this review, findings of
fact are accepted unless they are clearly erroneous and no deference is accorded to
conclusions of law. Id. The post-conviction court is the sole judge of the weight of the
evidence and the credibility of witnesses. Id.Effectiveness of Counsel
Wheeler contends he was denied the effective assistance of appellate counsel.
Effectiveness of counsel is a mixed question of law and fact. Strickland v. Washington, 466
U.S. 668, 698 (1984). We evaluate Sixth Amendment claims of ineffective assistance under
the two-part test announced in Strickland. Id. To prevail on an ineffective assistance of
counsel claim, a defendant must demonstrate both deficient performance and resulting
prejudice. Dobbins v. State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at
687). Deficient performance is that which falls below an objective standard of
reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d 1153,
1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d
687, 692 (Ind. 1996). The two prongs of the Strickland test are separate and independent
inquiries. Strickland, 466 U.S. at 697. Thus, “[i]f it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice . . . that course should be followed.” Id.5
A defendant is entitled to the effective assistance of appellate counsel. Stevens v.
State, 770 N.E.2d 739, 760 (Ind. 2002). The two-pronged standard for evaluating the
assistance of trial counsel first enunciated in Strickland is applicable to appellate counsel
ineffective assistance claims. Bieghler v. State, 690 N.E.2d 188, 192 (Ind. 1997). There are
three basic categories of alleged appellate ineffectiveness: (1) denying access to an appeal,
(2) waiver of issues, and (3) failure to present issues well. Id. at 193-95. Here, the second
category is implicated.
“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.” Henley v.
State, 881 N.E.2d 639, 645 (Ind. 2008). Upon review, the performance prong is evaluated by
applying 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 those
raised. Id.Appellate counsel challenged the trial court’s decision to admit evidence gained from
the execution of an allegedly invalid search warrant; the reviewing court examined the
evidence in support of the warrant and found it sufficient to establish probable cause.
Wheeler, slip op. at 4. Wheeler claims that counsel should have argued that Wheeler was
denied his right of self-representation, in contravention of Faretta v. California, 422 U.S. 806(1975).
6
A defendant’s Sixth Amendment right to counsel is essential to the fairness of a
criminal proceeding. Drake v. State, 895 N.E.2d 389, 392 (Ind. Ct. App. 2008) (citing
Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963)). Implicit in the right to counsel is the
right to self-representation. Faretta, 422 U.S. at 819.
A request to proceed pro-se is a waiver of the right to counsel and thus there are
several requirements to invoking the right of self-representation successfully. Stroud v.
State, 809 N.E.2d 274, 279 (Ind. 2004). The request must be clear, unequivocal, and made
within a reasonable time prior to trial. Id. Additionally, the choice to proceed pro se must be
knowing, intelligent, and voluntary. Id. Even after a defendant has asserted his or her right
to self-representation, the right may be waived through conduct indicating that one is
vacillating on the issue or has abandoned the request altogether. Id. at 281.
In his affidavit, Pinnow stated that he had considered the issue of Wheeler’s self-
representation and had rejected it as a strong issue for appeal. In relevant part, Pinnow’s
affidavit provided:
In researching the self-representation issue I reviewed Faretta v. California,
422 U.S. 806 (1975) and relevant Indiana precedent as well as the direct appeal
record and came to the conclusion based upon Stroud v. State, 809 N.E.2d 274,
279-82 (Ind. 2004) that Tracey Wheeler had only requested to represent
himself a single time and that a single request was insufficient to asset his right
of self-representation. Wheeler’s pro se request was also accompanied by
efforts to have his attorney replaced by another attorney. He did not maintain a
consistent position of asking to represent himself.
I chose not to raise the self-representation issue in his direct appeal based upon
what was in the direct appeal record and Stroud. The only issue I raised
pertained to the issuance of the search warrant.
(App. 553-54.)
7
The record available to appellate counsel included Wheeler’s communications in
advance of trial. In sum, Wheeler’s appellate counsel opined that the motions and letters did
not constitute an unequivocal request for self-representation. Wheeler contends that this
assessment and decision to forego an appellate challenge is outside the bounds of reasonable
representation.
In particular, Wheeler argues that two of his letters plainly conveyed his desire to
represent himself. The first of these, the letter of April 2, 2008, contained the following
language:
I want to fire my counsel and represent myself, it is my constitutional right to
represent myself. I feel as well as it shows that the Public defender’s office
isn’t for the best interest of me. I’ve tried several times to fire my lawyer thru
your court to represent myself the only results I’ve seen have be against me.
So I feel if the best representation isn’t going to come from the Public
defender’s office I feel I’ll be in better care representing myself, I only trust
me.
(App. 459.) The second letter, received May 20, 2008, provided in relevant part:
[S]ince Feb. 4th I have not spoken with an attorney nor have neither attorney
fulfilled any of my request, nor took any precautions for preparing for trail.
[sic] I believe the motion filed by my attorney was without merit and
contained nothing but lies to deceive the court and trick the court into granting
the motion to help cover up the fact that my lawyer isn’t doing his or her job.
I’ve written the head Public Defender and as well the courts requesting a new
lawyer or to use my right to represent myself, I can send myself to prison, I
don’t need someone representing me who isn’t going to attempt to get a not
guilty verdict.
(App. 469.)
On April 2, 2008, Wheeler asked that he be allowed to represent himself. In the
subsequent letter, he highlighted perceived deficiencies in his counsel’s performance and
8
indicated that he had written letters to obtain either a new lawyer or self-representation. He
did not make a specific request of the trial court at that time. Still later, he asked for
dismissal of “the current assigned attorney,” arguably implying that there would be a
subsequent assigned attorney. (App. 466.) Moreover, the letters upon which Wheeler relies
were a small part of numerous communications with the trial court undertaken for the
apparent purpose of bringing to light Wheeler’s unfavorable assessment of counsel’s
performance. In sum, it appears that Wheeler engaged in a tactical campaign to procure
counsel more to his liking.
Wheeler did not – without equivocation or subsequent conduct indicating vacillation –
assert his right of self-representation. Accordingly, appellate counsel did not overlook a
significant and obvious claim that Wheeler was deprived of his Sixth Amendment right of
self-representation.
Conclusion
Wheeler fails to demonstrate a reasonable probability that the outcome of his direct
appeal would have been different had appellate counsel raised a Faretta claim. Wheeler has
not shown that he was denied the effective assistance of appellate counsel.
Affirmed.
NAJAM, J., and PYLE, J., concur.
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