George King v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 17 2017, 6:00 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John Emry Curtis T. Hill, Jr.
Franklin, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
George King, January 17, 2017
Appellant-Defendant, Court of Appeals Case No.
49A05-1605-PC-1059
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Sheila A. Carlisle,
Appellee-Plaintiff. Judge
The Honorable Stanley Kroh,
Magistrate
Trial Court Cause No.
49G03-0201-PC-3711
Robb, Judge.
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Case Summary and Issues
[1] Following a jury trial, George King was found guilty and convicted of two
counts of attempted murder. The trial court sentenced King to an aggregate
sentence of fifty years executed in the Indiana Department of Correction. On
direct appeal, we affirmed his convictions. King v. State, 799 N.E.2d 42 (Ind.
Ct. App. 2003), trans. denied, cert. denied, 543 U.S. 817 (2004). Thereafter, King
filed a petition for post-conviction relief wherein he alleged ineffective
assistance of trial and appellate counsel, which the post-conviction court
denied. King now appeals, raising two issues for our review: (1) whether the
post-conviction court erred in concluding King’s trial counsel was not
ineffective, and (2) whether the post-conviction court erred in concluding
King’s appellate counsel was not ineffective. Concluding trial and appellate
counsel were not ineffective, we affirm.
Facts and Procedural History
[2] We summarized the facts and procedural history of this case in King’s direct
appeal:
King and Kay King (“Kay”) are brother and sister. Their father,
George King (“George”), was a multimillionaire. In 1999, Kay
worked for George’s investment company, and he gave Kay
power of attorney. King lived with George at his residence in
Indianapolis. Kay and King had a strained relationship and
often quarreled over who would control George’s multimillion-
dollar estate after his death.
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In the summer of 2000, Kay and King clashed. King yelled, “I'm
going to kill you.” Dana Miller, George’s nursing aid, witnessed
part of the fight. Miller heard Kay ask King, “Are you going to
shoot me?” Miller saw King nod his head affirmatively and
respond, “Yeah.”
In October 2001, Kay saw King remove mail from her mailbox.
During the same timeframe, one of Kay’s neighbors saw King’s
car stop at Kay’s mailbox on numerous occasions. Later, Kay
learned that change-of-address orders had been executed with the
post office that changed the delivery of her investment and trust
accounts to George’s address, where King lived.
On the evening of November 14, 2001, Kay’s fifteen-year-old
son, C.K., drove her home from his confirmation class. C.K.
pulled into their garage and turned off the car. As C.K. and Kay
sat talking, a man wearing a ski mask and trench coat appeared
on the passenger side of the car. He had his right hand covered
with a fast-food sack. The man removed the sack and fired a
revolver at Kay and C.K. through the passenger window. C.K.
was shot twice, in his neck and shoulder. Kay was shot five
times; she sustained injuries to her face, shoulder, and hand.
C.K. restarted the car and backed out of the garage. The
assailant pursued them and continued to fire at Kay and C.K. as
they drove away. Kay’s neighbors reported seeing a thin man,
with a stature similar to King’s, wearing dark clothing and
running away from Kay’s garage that night.
C.K. sought help at a nearby fire station. Firefighters
administered medical aid to Kay and C.K. before they were
transported to the hospital. When firefighters questioned Kay
and C.K. as to the identity of their attacker, they both identified
King as the assailant. Marion County Sheriff’s Deputy Bradley
Beaton interviewed C.K. at the fire station. C.K. told Deputy
Beaton that King had shot him and his mother. C.K. said that he
recognized King as the assailant because of his eyes, mouth, and
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build. Later at the hospital, Marion County Sheriff’s Department
Detective John Maloney interviewed Kay and C.K. separately;
both identified King as the attacker.
On January 9, 2002, the State charged King with attempted
murder, aggravated battery as a Class B felony, battery as a Class
C felony, and carrying a handgun without a license as a Class A
misdemeanor. On August 20, 2002, after reviewing Kay’s
medical records, King moved for a mistrial so that he could
investigate whether Kay’s identification testimony was a product
of hypnosis. The trial court denied King’s motion. On August
22, 2002, a jury found King guilty on all counts. The trial court
entered judgment of conviction only on the two attempted
murder counts.
Id. at 45-46 (record citations and footnotes omitted).
[3] The trial court sentenced King to fifty years on each count of attempted murder,
to be served concurrently. In sentencing King, the trial court found numerous
aggravating circumstances, including King’s criminal history, King’s
premeditation in committing the offenses, and C.K.’s young age. King
appealed his convictions, raising five issues for our review. We affirmed. Id. at
51. In 2005, King filed a petition for post-conviction relief, alleging ineffective
assistance of trial and appellate counsel, which the post-conviction court denied
on April 12, 2016. King now appeals the denial of post-conviction relief.
Discussion and Decision
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I. Standard of Review
[4] Post-conviction proceedings are not an opportunity for a super-appeal.
Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839
(2002). Rather, they create a narrow remedy for subsequent collateral
challenges to convictions that must be based on grounds enumerated in the
post-conviction rules. Id. If not raised on direct appeal, a claim of ineffective
assistance of trial counsel is properly presented in a post-conviction
proceeding. Id. A claim of ineffective assistance of appellate counsel is also an
appropriate issue for post-conviction review. Id. The petitioner must establish
his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).
[5] A petitioner who has been denied post-conviction relief faces a “rigorous
standard of review” on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).
In reviewing the judgment of a post-conviction court, we may not reweigh the
evidence nor reassess witness credibility; rather we consider only the evidence
and reasonable inferences supporting the judgment. Hall v. State, 849 N.E.2d
466, 468-69 (Ind. 2006). We will affirm the post-conviction court’s denial of
post-conviction relief unless the evidence leads “unerringly and unmistakably to
a decision opposite that reached by the post-conviction court.” McCary v.
State, 761 N.E.2d 389, 391 (Ind. 2002). Only where the evidence is without
conflict and leads to but one conclusion, and the post-conviction court reached
the opposite conclusion, will the post-conviction court’s findings or conclusions
be disturbed as being contrary to law. Hall, 849 N.E.2d at 469. Finally, we do
not defer to the post-conviction court’s legal conclusions, but do accept its
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factual findings unless they are clearly erroneous. Stevens v. State, 770 N.E.2d
739, 746 (Ind. 2002), cert. denied, 540 U.S. 830 (2003).
II. Ineffective Assistance of Trial and Appellate Counsel
[6] King contends the post-conviction court erred in concluding his trial and
appellate counsel were not ineffective. Specifically, he contends trial and
appellate counsel rendered ineffective assistance in failing to challenge his
sentence on the basis the trial court erred in finding aggravating circumstances
not found by a jury beyond a reasonable doubt in light of Apprendi v. New Jersey,
530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004). We
disagree.
[7] The standard for ineffective assistance of both trial and appellate counsel is the
same. Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013). We review claims of
ineffective assistance of counsel under the two-prong test set forth in Strickland
v. Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffective
assistance of counsel, the petitioner must show 1) his counsel’s performance
was deficient, and 2) the lack of reasonable representation prejudiced
him. Id. at 687. These two prongs are separate and independent
inquiries. Manzano v. State, 12 N.E.3d 321, 326 (Ind. Ct. App. 2014), trans.
denied, cert. denied, 135 S. Ct. 2376 (2015). Therefore, “if it is easier to dispose of
an ineffectiveness claim on one of the grounds instead of the other, that course
should be followed.” Talley v. State, 736 N.E.2d 766, 769 (Ind. Ct. App. 2000).
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[8] To satisfy the first prong, the petitioner must show counsel’s representation fell
below an objective standard of reasonableness and counsel committed errors so
serious petitioner did not have the “counsel” guaranteed by the Sixth
Amendment of the United States Constitution. Garrett, 992 N.E.2d at 719. To
satisfy the second prong, the petitioner must show a reasonable probability that,
but for counsel’s 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.
[9] Under this standard, “[c]ounsel is afforded considerable discretion in choosing
strategy and tactics, and we will accord those decisions
deference.” Timberlake, 753 N.E.2d at 603. We recognize a strong presumption
counsel rendered adequate legal assistance. Id. The defendant must offer
“strong and convincing evidence to overcome this presumption.” Smith v.
State, 822 N.E.2d 193, 202 (Ind. Ct. App. 2005), trans. denied.
A. Trial Counsel
[10] King argues his trial counsel rendered ineffective assistance in failing to object
to the enhancement of his sentence based upon aggravators not found beyond a
reasonable doubt by a jury. Specifically, King maintains he was sentenced after
the United States Supreme Court decided Apprendi and trial counsel should
have objected to the sentence in light of that case.
[11] In 2000, the Supreme Court held in Apprendi, “Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
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statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” 530 U.S. at 490 (emphasis added). Four years later, the Supreme
Court interpreted the phrase “statutory maximum” in light of Apprendi as “the
maximum sentence a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303 (emphasis in
original). Then, in 2005, our supreme court was tasked with examining
Indiana’s sentencing scheme at the time in light of Blakely. In Smylie v. State,
the court noted, “While many who read Apprendi deduced that ‘statutory
maximum’ meant ‘statutory maximum,’ the Blakely majority chose to define it
as ‘the maximum sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.’” 823 N.E.2d 679,
682-83 (Ind. 2005) (emphasis omitted) (quoting Blakely, 542 U.S. at 303), cert.
denied, 546 U.S. 976 (2005). The court further noted,
While Blakely certainly states that it is merely an application of
“the rule we expressed in Apprendi v. New Jersey,” it is clear
that Blakely went beyond Apprendi by defining the term “statutory
maximum.” As the Seventh Circuit recently said, it “alters
courts’ understanding of ‘statutory maximum’” and therefore
runs contrary to the decisions of “every federal court of appeals
[that had previously] held that Apprendi did not apply to guideline
calculations made within the statutory maximum.” Simpson v.
United States, 376 F.3d 679, 681 (7th Cir. 2004) (collecting cases).
Because Blakely radically reshaped our understanding of a critical
element of criminal procedure, and ran contrary to established
precedent, we conclude that it represents a new rule of criminal
procedure.
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Id. at 687 (alteration in original) (some citations omitted). Because Blakely
created a new rule of constitutional criminal procedure, the court stated Blakely
would apply “retroactively to all cases on direct review at the time Blakely was
announced,” but “a defendant need not have objected at trial in order to raise
a Blakely claim on appeal inasmuch as not raising a Blakely claim before its
issuance would fall within the range of effective lawyering.” Id. at 690-91.
Therefore, the court held “a trial lawyer or an appellate lawyer would not be
ineffective for proceeding without adding a Blakely claim before Blakely was
decided.” Id. at 690.
[12] Here, King was sentenced in November 2002, after Apprendi but years before
Blakely and Smylie were decided. Therefore, King’s argument invites us to hold
his trial counsel was required to interpret Apprendi in a manner that would have
predicted the Supreme Court’s decision in Blakely and our supreme court’s
decision in Smylie. We decline such an invitation and note any objection to
King’s sentence based on Apprendi would not have been sustained in light of the
fact Apprendi had not yet been interpreted in a manner that would invalidate his
sentence. See Walker v. State, 843 N.E.2d 50, 59 (Ind. Ct. App. 2006), trans.
denied, cert. denied, 549 U.S. 1130 (2007). Moreover, our supreme court has
made clear, “An attorney is not required to anticipate changes in the law and
object accordingly in order to be considered effective.” Id. (internal quotation
marks and citation omitted). We conclude the post-conviction court did not err
in concluding King’s trial counsel did not render ineffective assistance.
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B. Appellate Counsel
[13] King also argues appellate counsel rendered ineffective assistance in failing to
challenge his sentence on direct appeal on the same basis. As noted above, we
apply the same standard of review to claims of ineffective assistance of appellate
counsel as we apply to claims of ineffective assistance of trial counsel. Garrett,
992 N.E.2d at 719.
A petitioner must demonstrate both that his counsel’s
performance was deficient and that the petitioner was prejudiced
by the deficient performance. Because the strategic decision
regarding which issues to raise on appeal is one of the most
important decisions to be made by appellate counsel, appellate
counsel’s failure to raise a specific issue on direct appeal rarely
constitutes ineffective assistance. Our supreme court has adopted
a two-part test to evaluate the deficiency prong of these claims:
(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. If this analysis
demonstrates deficient performance by counsel, the court then
examines whether the issues that appellate counsel failed to
raise would have been clearly more likely to result in reversal or
an order for a new trial.
Walker, 843 N.E.2d at 60 (quotations and citations omitted).
[14] Here, we affirmed King’s conviction in 2003, our supreme court denied transfer
in February 2004, and the Supreme Court decided Blakely four months later in
June 2004. Similar to above, King’s argument invites us to hold appellate
counsel was required to interpret Apprendi in a manner that would have
predicted both the Blakely and Smylie decisions. However, “‘[a]ppellate counsel
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cannot be held ineffective for failing to anticipate or effectuate a change in the
existing law.’” Id. (citation omitted). King’s argument fails and we conclude
the post-conviction court did not err in concluding King’s appellate counsel did
not render ineffective assistance.
Conclusion
[15] The post-conviction court did not err in concluding King is not entitled to post-
conviction relief on his claims he received ineffective assistance of trial and
appellate counsel. Accordingly, we affirm.
[16] Affirmed.
Kirsch, J., and Barnes, J., concur.
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