Baugh v. State

990 N.E.2d 71

Matthew A. BAUGH, Appellant–Petitioner,

v.STATE of Indiana, Appellee–Respondent.

No. 18A05–1210–PC–545.

Court of Appeals of Indiana.

July 9, 2013.

Appeal from the Delaware Circuit Court; The Honorable John M. Feick, Judge; Cause No. 18C04–0804–FB–7.

Cara Schaefer Wieneke, Wieneke Law Office, LLC, Plainfield, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

BAILEY, Judge.

Case Summary

Matthew A. Baugh was convicted after a jury trial of two counts of Sexual Misconduct with a Minor, as Class B felonies,¹ was adjudicated to be a Sexually Violent Predator (“SVP”),² and was sentenced to two consecutive twelve-year terms of imprisonment. Baugh appealed his conviction; this Court affirmed, as did our supreme court after accepting transfer of jurisdiction over Baugh's appeal. Baugh then pursued a petition for postconviction relief, which the post-conviction court denied. He now appeals the denial of the petition.

We affirm.

Issues

Baugh raises several issues for our review; we restate these as:

I. Whether Baugh's trial counsel was ineffective because:

A. Counsel did not request a jury instruction concerning the requirements of jury unanimity in the verdict;

B. Counsel did not properly challenge the State's evidence that resulted in Baugh's SVP adjudication; and

II. Whether Baugh's appellate counsel was ineffective for failing to challenge the sufficiency of the evidence supporting the SVP adjudication.

Facts and Procedural History

We take our statement of facts from this Court's opinion on Baugh's direct appeal:

In the fall of 2007, fourteen-year-old Z. (born August 1, 1993) and E. were eighth-grade classmates and best friends. Z.'s parents had recently divorced, and E.'s father had recently died. Z. frequently spent the night at E.'s residence.

Baugh, E.'s half-brother, was twenty-six years old in November 2007. According to Z., in November 2007, Baugh demonstrated an interest in Z.—holding her hand, making eye contact, talking to her on her cell phone—and then “started dating” her. Tr. at 124. In December 2007, in E.'s room, they “had sex,” id., by which Z. meant that “[Baugh's] penis went in [her] vagina.” Id. at 100, 110. Baugh had sex with Z. “[o]ver ten” times between December 2007 and mid-March 2008. Id. at 101. In addition, they engaged in oral sex, with “[Z.'s] mouth on his penis and his mouth on [her] vagina,” and he asked her “to call him Daddy Matt.” Id. at 103. Baugh told Z. that no one could “know” about their relationship “[b]ecause he would go back to prison.” Id. at 105. At the end of March 2008, Z. admitted to her mother “[t]hat [she] and [Baugh] were sleeping together.” Id. at 112.

On April 18, 2008, the State charged Baugh with two counts of class B felony sexual misconduct with a minor. As amended on April 25, 2008, each count alleged that “between November 1, 2007, and March 30, 2008,” Baugh had intentionally performed or submitted to sexual intercourse with Z., “a child at least fourteen (14) years of age but less than sixteen (16) years of age.” Appellant's App. at 23, 24. At trial, Z. testified to the foregoing. On September 1, 2009, the jury found Baugh guilty on both counts.

On September 4, 2009, pursuant to Indiana Code Section 35–38–1–7 .5(e), the State filed a petition asking the trial court to order evaluations to determine whether Baugh was a sexually violent predator. The trial court granted the petition and requested that Dr. Rebecca Mueller and Dr. Frank Krause examine Baugh “to determine whether or not he is a Sexually Violent Predator.” Id. at 175. The doctors conducted their examinations and submitted reports, each opining that Baugh suffered from a personality disorder and was likely to commit additional sexual offenses.

On October 7, 2009, the trial court held the sentencing hearing. The State argued that “[b]ased upon” the evaluations of Dr. Mueller and Dr. Krause and “the definition of a sexually violent predator,” the trial court should find Baugh “to be a sexually violent predator and require him to register for life in the sex registry.” Tr. at 427, 428. Baugh's counsel asserted that with respect “to the determination of the sexual violent predator, I think that the Court has to make that determination based upon the charge that he's been convicted [sic] and the doctors' reports, and I would leave that up to the Court.” Id. at 429–30. The trial court “reviewed the reports of Dr. Mueller and Dr. Krause” and found that Baugh was a sexually violent predator “within the meaning of the statute.” Id. at 277. The trial court sentenced Baugh to serve twelve years executed on each count, with the sentences “served consecutively.” Id. at 432.

Baugh v. State, 926 N.E.2d 497, 498–99 (Ind.Ct.App.2010)aff'd in part, vacated in part,933 N.E.2d 1277 (Ind.2010).

Upon Baugh's direct appeal from his convictions, this Court reviewed three issues, which we stated as:

I. Has Baugh procedurally defaulted his argument that the trial court failed to comply with statutory requirements in determining that he is a sexually violent predator?

II. Did the trial court abuse its discretion in ordering consecutive sentences?

III. Do Baugh's convictions violate the Indiana Constitution's prohibition of double jeopardy under the continuing crime doctrine?

Id. at 498. Finding no error, a two-judge majority affirmed the trial court's decision in all respects. Judge Darden, writing in dissent, would have held that Baugh did not, through argument of counsel alone, waive his right to cross-examine expert witnesses at a hearing concerning an SVP adjudication. Id. at 503 (citing, inter alia, Padilla v. Kentucky, 559 U.S. 356 (2010)) (arguing that an SVP adjudication is a consequence of conviction within the ambit of the Sixth Amendment right to counsel).

Baugh filed a petition to transfer, which our supreme court granted. On transfer, the court addressed a single issue: whether the trial court's SVP adjudication was in error because the trial court did not hold a hearing and receive testimony from Dr. Krause and Dr. Mueller, each of whom opined that Baugh was a SVP. Baugh v.. State, 933 N.E.2d 1277, 1278 (Ind.2010) [hereinafter Baugh II ]. The Baugh II Court first held that the SVP adjudication was not “made without a hearing.” Id. at 1280. The court went on to hold that while the statute governing SVP adjudications requires consideration of testimony, Baugh's trial counsel's actions appeared intended to mitigate the introduction of testimony unfavorable to Baugh, and thus any failure on the part of the trial court to conduct a hearing with the opportunity for cross-examination of the State's expert witnesses was invited error. Id. In a three-justice concurrence, Justice Rucker, joined by then-Chief Justice Shepard and then-Justice Sullivan, opined that but for the conclusion that the absence of testimony was the result of invited error, Baugh would have been entitled to relief on appeal. Id. at 1281. Justice Rucker's concurring opinion observed in passing that Baugh's appellate counsel did not challenge the sufficiency of the evidence underlying the SVP adjudication. Id. at 1281 n. 4.

After the Baugh II Court's ruling, Baugh filed his petition for post-conviction relief on December 15, 2011. Baugh alleged that his trial counsel was ineffective by inviting error concerning the absence of testimony at the SVP hearing, and that appellate counsel was ineffective for failing to challenge the sufficiency of evidence underlying the SVP adjudication. Baugh also identified as ineffective assistance his trial counsel's failure to request a modified version of the jury instruction that instructs the jury of the necessity that its verdict be unanimous.

On July 16, 2012, an evidentiary hearing was conducted on Baugh's petition. During the hearing, Baugh's trial and appellate counsel offered testimony, as did Dr. Martin Smith (“Dr.Smith”), a psychologist Baugh retained as an expert on sexual offender evaluations for purposes of pursuing the instant petition, and Baugh himself. On September 25, 2012, after the parties submitted proposed findings of fact and conclusions of law, the trial court entered its findings and conclusions denying Baugh's petition for relief.

This appeal ensued.

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 postconviction relief, the petitioner stands in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d at 674. 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 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 the witnesses. Id.

A petition for post-conviction relief is not a substitute for a direct appeal from a conviction or sentence. Ind. Post–Conviction Rule 1(1)(b). Post-conviction petitions afford defendants with the opportunity to raise issues not known at trial or unavailable upon direct appeal; claims that were available to a petitioner on direct appeal are not available in a proceeding for post-conviction relief. Bunch v. State, 778 N.E.2d 1285, 1290 (Ind.2002). “These are applications of the basic principle that...