Lukuman Aderbigbe v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
LUKUMAN ADERIBIGBE GREGORY F. ZOELLER
Carlisle, Indiana Attorney General of Indiana
KARL M. SCHARNBERG
Deputy Attorney General
FILED
Indianapolis, Indiana
Oct 31 2012, 9:32 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
LUKUMAN ADERBIGBE, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A04-1203-PC-219
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robert R. Altice, Jr., Judge
The Honorable Amy J. Barbar, Magistrate
Cause No. 49G02-0512-PC-219884
October 31, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Lukuman Aderibigbe appeals the denial of his petition for post-conviction relief
(“PCR petition”), which challenged a conviction for Class B felony criminal
confinement. We affirm.
Issue
The sole issue we address is whether Aderibigbe received ineffective assistance of
trial and appellate counsel.
Facts
On direct appeal, we related the underlying facts of this case as follows:
On the evening of December 17, 2005, Temidayo
Green was in his apartment with a friend, Romoni Sule.
Aderibigbe knocked at the front door, and Sule went to
answer it. However, after looking through the peephole, Sule
decided not to let Aderibigbe in because Sule did not know
him. Aderibigbe then addressed Green and Sule through the
door in their native Nigerian dialect, claiming that he was “a
brother to someone [Green] kn[e]w,” that he was having a
problem with his car, and that he needed help. When Green
opened the door, Aderibigbe put on a ski mask and, pointing a
gun at Green, rushed inside followed by an accomplice,
Antonio McBrady, who also had a gun and ski mask.
Aderibigbe hit Green in the back of the head with the gun and
ordered him to face the wall and Sule to lie on the floor.
They also hit Sule in the back of the head, and he began to
bleed from the wound. Aderibigbe and McBrady told Green
and Sule that they were going to kill them, put them in the
trunk of a car, and take them to “God knows where.”
Aderibigbe and McBrady then moved Green and Sule
to Green’s bedroom. While McBrady held them at gunpoint,
Aderibigbe ransacked the apartment. Aderibigbe loaded
Green’s possessions into Green’s car. He took their wallets
and debit cards and asked for their PIN numbers, threatening
2
to kill them if they lied. He disconnected Green’s telephone
and took Green’s and Sule’s cell phones. Aderibigbe then left
the apartment with Sule to withdraw money from a nearby
ATM machine, leaving McBrady behind to keep watch over
Green. Aderibigbe and Sule then walked to three different
banks, where Sule withdrew $200 from his own account.
When they approached a “public place,” Aderibigbe removed
his ski mask.
In response to a suspicious persons dispatch, Deputy
James Barrow pulled up behind Aderibigbe and Sule and
activated his emergency lights. Deputy Barrow exited his
patrol car, identified himself, and asked for their
identifications. Aderibigbe “acted very nervous” and “kept
looking around” and “putting his hand near his pocket.”
Concerned for his own safety, Deputy Barrow attempted to
put Aderibigbe in handcuffs. When Deputy Steven Scott
arrived to assist Deputy Barrow, Aderibigbe “took off
running.” Deputy Barrow pursued him on foot. Sule then
informed Deputy Scott that Aderibigbe was armed and that
Green was being held hostage back at the apartment. Deputy
Scott notified Deputy Barrow on the radio that Aderibigbe
was armed, and Deputy Barrow gave up his pursuit. The
deputies called for back-up and headed to Green’s apartment,
where McBrady soon surrendered.
The State charged Aderibigbe with two counts of
criminal confinement as class B felonies, robbery as a class B
felony, two counts of battery as class C felonies, carrying a
handgun without a license as a class A misdemeanor,
resisting law enforcement as a class A misdemeanor, and
carrying a handgun without a license as a class C felony.
Following a jury trial, Aderibigbe was convicted of all
charges except carrying a handgun without a license as a class
C felony, which the State dismissed.
Aderibigbe v. State, No. 49A02-0611-CR-986, slip op. pp. 1-2 (Ind. Ct. App. Sept. 25,
2007) (citations omitted). On direct appeal, Aderibigbe’s attorney only challenged the
appropriateness of Aderibigbe’s thirty-eight-year sentence and we affirmed the sentence.
Id. at 3.
3
On April 21, 2008, Aderibigbe filed a pro se PCR petition, which he amended on
June 13, 2011. The petition challenged only one of Aderibigbe’s convictions for Class B
felony criminal confinement, specifically the count that pertained to the confinement of
Temidayo Green. Aderibigbe contended that he had been improperly convicted of
confining Green by removing him from one place to another, when the charging
information alleged that Aderibigbe confined Green without his consent by holding him
at gunpoint. On January 12, 2012, the post-conviction court denied Aderibigbe’s
petition. Aderibigbe now appeals.
Analysis
PCR proceedings are civil in nature, and a defendant bears the burden of
establishing his or her claims by a preponderance of the evidence. Smith v. State, 822
N.E.2d 193, 198 (Ind. Ct. App. 2005), trans. denied. A defendant appealing the denial of
a PCR petition is challenging a negative judgment. Id. Thus, to the extent this appeal
turns on factual issues, Aderibigbe must convince this court that the evidence as a whole
leads unerringly and unmistakably to a decision opposite that reached by the PCR court.
See id. “In other words, the defendant must convince this court that there is no way
within the law that the court below could have reached the decision it did.” Id. We will
not defer to the PCR court’s legal conclusions, but we do accept its factual findings
unless they are “clearly erroneous.” Id.We first note that Aderibigbe raises a freestanding claim of reversible error.
Freestanding claims of error are not cognizable in post-conviction proceedings. Sanders
4
v. State, 765 N.E.2d 591, 592 (Ind. 2002). “In post-conviction proceedings, complaints
that something went awry at trial are generally cognizable only when they show
deprivation of the right to effective counsel or issues demonstrably unavailable at the
time of trial or direct appeal.” Id. Because there is no claim by Aderibigbe that his
challenge to his confinement conviction was “demonstrably unavailable” before, we will
only address his argument that he received ineffective assistance of counsel.
To prevail on a claim of ineffective assistance of counsel, a petitioner must
demonstrate both that his or her 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) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 2064 (1984)), cert. denied. An attorney’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). To meet the appropriate test for
prejudice, the petitioner must show that there is 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.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Failure to satisfy either prong
will cause the claim to fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006).
Although Aderibigbe asserts that both his trial and appellate attorneys were
ineffective, he fails to specify how his trial attorney was ineffective. Thus, we will focus
our attention on whether his appellate attorney was ineffective for failing to challenge
5
one of his confinement convictions on direct appeal. There are three basic categories of
ineffective assistance of appellate counsel claims: (1) denial of access to an appeal; (2)
waiver of issues for failing to raise them on direct appeal; and (3) failure to present issues
well. Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). Aderibigbe’s claim falls into
the second category. To prove such a claim, “the defendant must overcome the strongest
presumption of adequate assistance, and judicial scrutiny is highly deferential.” Id. In
evaluating the performance prong when counsel waived issues upon appeal, we must
determine: (1) whether the unraised issue is significant and obvious from the face of the
record and (2) whether the unraised issue is “clearly stronger” than the raised issues. Id.If this analysis demonstrates deficient performance, then we examine whether prejudice
occurred. Id. The test of prejudice when appellate counsel was deficient for failing to
raise an issue is whether that issue clearly would have been more likely to result in
reversal or an order for a new trial than the issue or issues that appellate counsel actually
did raise. Id.Indiana Code Section 35-42-3-3(a) provides that a “person who knowingly or
intentionally: (1) confines another person without the other person’s consent; or (2)
removes another person, by fraud, enticement, force, or threat of force, from one (1)
place to another . . . commits criminal confinement.” In Addis v. State, 404 N.E.2d 59,
61 (Ind. Ct. App. 1980), this court held that subsections (1) and (2) of the criminal
confinement statute “embrac[ed] two distinct types of criminal confinement by
encompassing both the concept of restraint in place and removal.” Moreover, we
6
concluded that the two subsections “present two separate crimes,” stating that lack of
consent is an element of confinement under subsection (1) but not subsection (2). Id.Although not raised by the defendant in her brief, we reversed her conviction as
fundamentally erroneous where the State had explicitly charged the defendant with
violating subsection (1) of the confinement statute but the evidence could only have
supported a conviction under subsection (2). Id. at 64.
Our supreme court approved of Addis in Kelly v. State, 535 N.E.2d 140 (Ind.
1989). There, the court reversed the defendant’s confinement conviction where he had
been expressly charged with confining a person without his consent, but the jury was
instructed that it could convict the defendant if there was proof that he had removed the
victim from one place to another by fraud, enticement, force, or threat of force. Kelly,
535 N.E.2d at 142. In other words, it was erroneous for the State to have charged the
defendant under subsection (1) of the confinement statute but to ask the jury to convict
him under subsection (2). Additionally, the instructional error was not harmless because
there was evidence that would have supported convicting the defendant of either the
uncharged offense under subsection (2) or the charged offense under subsection (1), and
it was impossible to tell from the general verdict whether the jury convicted him under
subsection (1) or (2). Id. at 143; but see id. at 143-44 (Pivarnik & Givan, JJ., dissenting)
(disagreeing with majority that confinement statute describes two different criminal acts
and that “it would be more accurate to say the statute describes one criminal act that can
be performed in two different manners.”).
7
Aderibigbe asserts that his case is similar to Addis and Kelly and, essentially, that
appellate counsel should have brought that similarity to our attention on direct appeal.
The charging information in this case alleged that Aderibigbe “did knowingly, while
armed with a deadly weapon, that is: a handgun, confine Temidayo Green, without the
consent of Temidayo Green, by holding Temidayo Green inside a house at gunpoint . . .
.” App. p. 42. Thus, Aderibigbe was charged under subsection (1) of the confinement
statute, i.e. “non-consensual” confinement. The facts as related in our opinion on direct
appeal support a conviction under that subsection, in particular, the evidence that
Aderibigbe hit Green on the back of the head with a gun and then ordered him to face the
wall.1 See Austin v. State, 603 N.E.2d 169, 172 (Ind. Ct. App. 1992) (holding evidence
that defendant ordered victims to remain still after breaking into apartment sufficient to
support confinement convictions), trans. denied. Because there was in fact evidence
sufficient to convict Aderibigbe of “non-consensual” confinement, it is distinguishable
from Addis, where we concluded there was in fact only sufficient evidence to convict the
defendant of the uncharged “removal” confinement and no evidence that she had
committed the charged “non-consensual” confinement. Appellate counsel was not
ineffective for failing to raise Addis on direct appeal.
The State admits, however, there was evidence that could have supported a
conviction under subsection (2), i.e. “removal” confinement, when Aderibigbe ordered
1
Aderibigbe also could have been deemed an accomplice to McBrady’s holding of Green in the bedroom
at gunpoint while Aderibigbe ransacked the apartment, which would have been a subsection (1)
confinement.
8
Green to move to the bedroom. The facts of this case, therefore, are facially similar to
Kelly. Regardless, Aderibigbe has not met his burden of establishing that appellate
counsel was ineffective for failing to raise this issue on direct appeal. Most importantly,
Aderibigbe has not argued that the jury was improperly instructed that it could convict
him of “removal” confinement of Green after he was charged only with “non-consensual”
confinement of Green. That was the dispositive issue in Kelly, the fact that the jury was
given the option of convicting the defendant of a crime with which he had never been
charged. Nor has Aderibigbe argued or cited to any portion of the record 2 that the
prosecutor improperly urged the jury to convict him of “removal” rather than “non-
consensual” confinement of Green. In the absence of any evidence of improper argument
by the prosecutor or improper jury instructions, we cannot conclude that appellate
counsel made an unreasonable strategic decision in failing to raise an argument based on
Kelly on direct appeal.
To the extent Aderibigbe suggests that it was improper for the State to introduce
any evidence of Green’s “removal” confinement when Aderibigbe was charged only with
“non-consensual” confinement, we also reject this argument. Indiana Evidence Rule
404(b) does not prohibit the introduction of evidence of uncharged acts that are
2
Aderibigbe did not provide a copy of the direct appeal record to the post-conviction court in support of
his claims, even though our docket indicates that Aderibigbe had obtained a copy of that record.
Although the post-conviction court “may” have taken judicial notice of that record, it was not required to
do so. See Ind. Evidence Rule 201(b). Additionally, even though Aderibigbe has proceeded pro se, he is
held to the same standard as trained counsel. See Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App.
2004), trans. denied.
9
“intrinsic” to the charged offense or offenses. Wages v. State, 863 N.E.2d 408, 411 (Ind.
Ct. App. 2007), trans. denied. “‘Evidence of happenings near in time and place that
complete the story of the crime is admissible even if it tends to establish the commission
of other crimes not included among those being prosecuted.’” Id. (quoting Bocko v.
State, 769 N.E.2d 658, 664–65 (Ind. Ct. App. 2002), trans. denied.) Clearly, Green’s
removal to the bedroom was part and parcel of the crimes with which Aderibigbe was
charged and prosecuted for; in fact, that removal could not have been more intrinsic to
the full story of the crimes. As such, the evidence was admissible, and counsel had no
basis upon which to challenge its admission.
Conclusion
Aderibigbe has not met his burden of establishing that he received ineffective
assistance of counsel at trial or on direct appeal and, thus, the post-conviction court
properly denied his PCR petition.
Affirmed.
VAIDIK, J., and MATHIAS, J., concur.
10