David M. Fischer v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Nov 21 2017, 10:09 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
David Fischer Curtis T. Hill, Jr.
New Castle, Indiana Attorney General of Indiana
J. T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David M. Fischer, November 21, 2017
Appellant-Defendant, Court of Appeals Case No.
18A04-1608-PC-1931
v. Appeal from the Delaware Circuit
Court
State of Indiana, The Honorable Thomas A.
Appellee-Plaintiff. Cannon, Jr., Judge
Trial Court Cause No.
18C05-1209-PC-1
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Petitioner, David M. Fischer (Fischer), appeals the post-conviction
court’s denial of his petition for post-conviction relief following a guilty plea at
the trial court level.
[2] We affirm.
ISSUE
[3] Fischer appears to present us with four issues on appeal, which we consolidate
and restate as: Whether he received ineffective assistance of trial counsel.
FACTS AND PROCEDURAL HISTORY
[4] On June 11, 2010, Fischer enticed A.F., whom he knew to be fifteen years old
at the time, to come to his apartment, where he gave her vodka and then
subjected her to vaginal, oral, and anal sex. A.F. later reported Fischer. On
June 18, 2010, the State filed an Information, charging Fischer with three
Counts of sexual misconduct with a minor, Class B felonies; and one Count of
contributing to the delinquency of a minor, a Class A misdemeanor.
[5] On April 26, 2011, the trial court accepted Fischer’s plea of guilty to two
Counts of Class B felony sexual misconduct with a minor and one Count of
contributing to the delinquency of a minor, a Class A misdemeanor. After the
parties presented arguments on the sentence, the trial court entered judgment,
sentencing Fischer to twelve years, with ten years executed and two years
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suspended, each on the two Counts of sexual misconduct with a minor, to be
served consecutively, and one year suspended on the Class A misdemeanor.
[6] Fischer now appeals. Additional facts will be provided when necessary.
DISCUSSION AND DECISION
I. Standard of Review
[7] Under the rules of post-conviction relief, the petitioner must establish the
grounds for relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1, § 5; Strowmatt v. State, 779 N.E.2d 971, 974-75 (Ind. Ct. App. 2002). To
succeed on appeal from the denial of relief, the post-conviction petitioner must
show that the evidence is without conflict and leads unerringly and
unmistakably to a conclusion opposite that reached by the post-conviction
court. Id. at 975. The purpose of post-conviction relief is not to provide a
substitute for direct appeal, but to provide a means for raising issues not known
or available to the defendant at the time of the original appeal. Id. If an issue
was available on direct appeal but not litigated, it is waived. Id.[8] Where, as here, the post-conviction court makes findings of fact and
conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we
cannot affirm the judgment on any legal basis, but rather, must determine if the
court’s findings are sufficient to support its judgment. Graham v. State, 941
N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947 N.E.2d 962.
Although we do not defer to the post-conviction court’s legal conclusions, we
review the post-conviction court’s factual findings under a clearly erroneous
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standard. Id. Accordingly, we will not reweigh the evidence or judge the
credibility of witnesses, and we will consider only the probative evidence and
reasonable inferences flowing therefrom that support the post-conviction court’s
decision. Id.[9] Initially, we note that Fischer proceeded pro se before the post-conviction court
and again on appeal. While Fischer has every right to represent himself in legal
proceedings, a pro se litigant is nevertheless held to the same standard as a
trained attorney and is afforded no inherent leniency simply by virtue of being
self-represented. See Zavodnik v. Harper, 17 N.E.2d 259, 266 (Ind. 2014). This
also means that pro se litigants are bound to follow the established rules of
procedure and must be prepared to accept the consequences of their failure to
do so, which can include waiver for failure to present a cogent argument on
appeal and adherence to Indiana Appellate Rule 46(A)(8). See Shepherd v.
Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004). Here, Fischer’s appellate
brief consists of twenty-one handwritten pages with barely any references to the
record, appendix, or transcript. It is difficult to discern Fischer’s precise
allegations because of the many deficiencies in his brief. Pursuant to Ind.
Appellate Rule 46(A)(6), the statement of facts should contain a narrative
description of the relevant facts in light of the applicable standard of review.
Instead, Fischer’s statement of facts is a self-serving recitation of perceived
concessions made by the State and his trial counsel, admitting to, among
others, an excessive sentence, ineffectiveness, and Fischer’s innocence.
Similarly, Fischer’s statement of the case does not lay out the relevant
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procedural posture of the case as required by Ind. Appellate Rule 46(A)(5), but
instead focuses on the facts, as interpreted by him. Turning to the argument
section of Fischer’s appellate brief, we note that his arguments lack cogency.
See Ind. Appellate Rule 46(A)(8). Besides the difficulties this court has in
deciphering Fischer’s arguments, the overwhelming amount of case law cited
within the argument section is not used in developing contentions in support of
his position. Rather, they are merely general statements of rules of law without
any application to the claims at hand.
[10] While we prefer to decide issues on the merits, where the appellant’s
noncompliance with appellate rules is so substantial as to impede our
consideration of the issues, we may deem the alleged errors waived. Id.Although we would be justified to waive Fischer’s issues on appeal, we will
nevertheless attempt to address his arguments in so far as we can decipher
them. However, we refuse to comb through the record or transcript to find
evidence to support his allegations as we will not become an “advocate for a
party, or address arguments that are inappropriate or too poorly developed or
expressed to be understood.”1 Id.II. Ineffective Assistance of Counsel
1
It should be pointed out that the State is not free of blame either: in several instances in its appellate brief,
the State refers to Fischer as Freeman.
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[11] Fischer contends that he was denied the effective assistance of trial counsel.
The standard by which we review claims of ineffective assistance of counsel is
well established. In order to prevail on a claim of this nature, a defendant must
satisfy a two-pronged test, showing that: (1) his counsel’s performance fell
below an objective standard of reasonableness based on prevailing professional
norms; and (2) there is a reasonable probability that, but for counsel’s errors the
result of the proceeding would have been different. Jervis v. State, 28 N.E.3d
361, 365 (Ind. Ct. App. 2015) (citing Strickland v. Washington, 466 U.S. 668,
690, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) reh’g denied), trans. denied. The
two prongs of the Strickland test are separate and distinct inquiries. Id. Thus,
“if it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice . . . that course should be followed.” Timberlake v. State, 753
N.E.2d 591, 603 (Ind. 2001) (quoting Strickland, 466 U.S. at 697) reh’g denied;
cert. denied, 537 U.S. 839, 123 S.Ct. 162, 154 L.Ed.2d 61 (2002).
[12] Counsel is afforded considerable discretion in choosing strategy and tactics and
we will accord those decisions deference. Jervis, 28 N.E.3d at 365. A strong
presumption arises that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment. Id.
The Strickland court recognized that even the finest, most experienced criminal
defense attorney may not agree on the ideal strategy or the most effective way
to represent a client. Id. Isolated mistakes, poor strategy, inexperience, and
instances of bad judgment do not necessarily render representation ineffective.
Id. Furthermore, we will not speculate as to what may or may not have been
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advantageous trial strategy as counsel should be given deference in choosing a
trial strategy which, at the time and under the circumstances, seems best. Id.
[13] Because Fischer brings his petition for post-conviction relief after pleading
guilty at the trial court level, it is important to observe that “[t]here are two
different types of ineffective assistance of counsel claims that can be made in
regards to guilty pleas: (1) failure to advise the defendant on an issue that
impairs or overlooks a defense; and (2) an incorrect advisement of penal
consequences.” McCullough v. State, 987 N.E.2d 1173, 1176 (Ind. Ct. App.
2013) (citing Segura v. State, 749 N.E.2d 496, 500 (Ind. 2001)). Importantly, the
decision to enter a guilty plea is largely the defendant’s decision, and is
therefore different from the tactical or investigatory steps that are the bases of
most claims of ineffective assistance of counsel. Segura, 749 N.E.2d at 503-04.
In State v. Van Cleave, 674 N.E.2d 1293, 1301 (Ind. 1996), our supreme court
reasoned:
Demonstrating prejudice seems particularly appropriate in the
context of a claim of ineffective assistance by a defendant who
has pleaded guilty. The guilty plea, virtually unique among all
procedural steps, involves the judgment of the defendant as well
as his attorney . . . [T]he decision to plead is often strongly if not
overwhelmingly influenced by the attorney’s advice. But it is
equally true that the defendant appreciated the significance of the
plea and is uniquely able to evaluate its factual accuracy. The
requirement that the court satisfy itself as to the factual basis for
the plea is designed to ensure that only guilty defendants plead
guilty, and also that the defendant’s decision to waive a jury trial
is an informed and reflective one. Many decisions at trial—
calling a given witness, asserting a defense, or the extent of cross-
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examination—are difficult if not impossible for the defendant to
make, and reliance on counsel is unavoidable. In contrast, the
decision to plead guilty is ultimately the prerogative of the
defendant, and the defendant alone. More than conjecture or
hope for a lucky break at trial should be required to upset that
action years later.
Likewise, “if the error or omission has the result of overlooking evidence or
circumstances that affect the sentence imposed, prejudice is evaluated by the
reasonable probability that it had that effect.” Segura, 749 N.E.2d at 504.
1. Trial Counsel
[14] As far as we can discern, Fischer contends that his trial counsel failed to
investigate, failed to object to the accuracy of facts used at sentencing, and
failed to research controlling law. His argument is mostly focused on his
counsel’s lack of contacting witnesses who could have provided evidence of
mitigating circumstances to be used during his sentencing. It appears that the
mitigating circumstance Fischer alludes his trial counsel overlooked was the
abuse he had suffered as a child. Trial counsel testified during the post-
conviction relief hearing that even though he had tried to contact Fischer’s
brother, the number Fischer had given him did not work. Fischer did not
provide trial counsel with any other witnesses to contact. Furthermore, Fischer
failed to establish that even if his mental health history or abusive childhood
could have been established, the result of the sentencing hearing would have
been different. Our supreme court has consistently held that evidence of a
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difficult childhood “is entitled to little, if any, mitigating weight.” Bethea v.
State, 983 N.E.2d 1134, 1141 (Ind. 2013).
[15] Additionally, Fischer petitioned the post-conviction court for relief on a claim
that trial counsel failed to file certain unspecified motions. If Fischer is to prove
successfully that ineffective assistance stemmed from a failure to file a motion,
he must show that the motion would have been granted if raised—which he did
not. Sweet v. State, 10 N.E.3d 10, 14 (Ind. Ct. App. 2014) (citing Helton v. State,
907 N.E.2d 1020, 1023 (Ind. 2009)).
[16] Besides several pages filled with generalized statements and without references
to the record, Fischer fails to provide any evidence supporting his allegations,
let alone establish that he was prejudiced by these perceived omissions.
2. Freestanding Claims
[17] In addition to his allegations of ineffective assistance of trial counsel, Fischer
asserts numerous complaints against the trial court and the State. Among these
contentions are allegations that the trial court’s sentence was excessive, that the
trial court and the State violated the terms of the plea agreement, and that the
trial court erroneously imposed consecutive sentences. As we have repeatedly
noted, “[p]ost-conviction relief is not a substitute for a direct appeal.” Ind.
Post-Conviction Rule 1, § 1(b). Post-conviction procedures create a narrow
remedy for subsequent collateral challenges to convictions. Martin v. State, 760
N.E.2d 597, 599 (Ind. 2002). Freestanding claims that the original trial court
committed error are available only on direct appeal. Id. Accordingly, Fischer
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waived these allegations as their review is unavailable to him in post-conviction
relief proceedings.
CONCLUSION
[18] Based on the foregoing, we conclude that trial counsel provided effective
assistance to Fischer and we accordingly affirm the post-conviction court’s
denial of Fischer’s petition.
[19] Affirmed.
[20] Robb, J. and Pyle, J. concur
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