Black v. State

38 N.E.3d 1012 (Table)

Cecil J. BLACK, Jr., Appellant–Petitioner

v.STATE of Indiana, Appellee–Respondent.

No. 71A03–1406–PC–211.

Court of Appeals of Indiana.

Aug. 12, 2015.

Cecil J. Black Jr., Michigan City, IN, Appellant Pro Se.

Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

CRONE, Judge.

Case Summary

[1] Cecil J. Black, Jr., appeals the postconviction court's denial of his petition for postconviction relief. He contends that the postconviction court erred in denying his motion for continuance and also raises numerous allegations of ineffective assistance of trial and appellate counsel. Finding that the postconviction court acted within its discretion in denying Black's last-minute motion for continuance and finding that Black failed to establish ineffective assistance of counsel, we affirm.

Facts and Procedural History

[2] The facts as summarized in an unpublished memorandum decision on Black's second direct appeal are as follows:

On September 24, 2003, Black and his friend, Eddy Kawira, had spent the day at Black's home drinking alcohol and using illegal substances. In the late afternoon, John Luke came to Black's residence to buy drugs from Black. Luke purchased the drugs using money that he had stolen from Black's father. After Black learned of the theft, he became outraged. He walked to Luke's house, where Luke's girlfriend delayed Black while Luke escaped from the back of the residence.

Black walked back to his own residence, still angry, and vowed that he would “f*ck [Luke] up.” Shortly thereafter, Luke's girlfriend arrived at Black's house to discuss the situation, but Black shoved her off of his porch and said that she and Luke were acting together to “screw” him out of his money.

After the confrontation with Luke's girlfriend, Black and Kawira drove away from Black's residence to purchase more beer. While they were out, Black purchased a handgun and, on the drive back to Black's house, he fired the gun into the air several times.

Early on the morning of September 25, 2003, Frank Pangallo and Renee Milligan drove to Black's residence so that Renee could repay Black some money that she owed to him. Black showed Pangallo the handgun that he had purchased, and Pangallo showed Black how to operate the “somewhat broken” weapon. Black mentioned that Luke had stolen money from him and Pangallo and Milligan observed that Black was still upset about it.

As Pangallo and Milligan left Black's house and walked to their vehicle, Pangallo noticed someone, later identified as Luke, walking down the street towards them. Before Pangallo entered the vehicle, he turned around and saw Black pointing the handgun at Luke, who was holding a knife in his hand. Pangallo heard the men arguing and, while Pangallo was turned in the other direction, he heard a gunshot. When he turned around, he saw Luke on the ground. Black fired his gun at Luke, who was attempting to flee, two more times and then fled. Pangallo and Renee drove away to a pay phone and called 911.

South Bend Police officers arrived on the scene within minutes and found Luke on the street. Luke had been shot three times, and one of the wounds proved fatal. He had also suffered contusions and bruises on his left cheek. The forensic pathologist who conducted [the] autopsy testified that the bullets causing Luke's injuries had been fired from a gun that was at least three feet away at the time of the shooting.

Five days after the shooting, Black surrendered to the police, having cut his hair, thrown away the clothing he was wearing at the time of the incident, and disposed of the handgun. Black provided different versions of the shooting to the police, at first contending that he and Luke had fought and the gun had fired accidentally and denying that he had purchased the handgun only hours before the shooting. Black then changed his story, admitting that he had purchased the gun that night and claiming that he had fired the weapon in self-defense, notwithstanding an earlier claim that he did not know that Luke had been carrying a knife at the time of the shooting.

On September 26, 2003, the State charged Black with murder. A jury found Black guilty as charged on September 10, 2004. Black appealed his conviction and this court reversed, finding that he had not received a fair trial because the trial court had prohibited him from questioning prospective jurors regarding self-defense during voir dire. Black v. State, 829 N.E.2d 607, 612 (Ind.Ct.App.2005) [ (“Black I ”) ].

Black's second jury trial commenced on February 27, 2007. He proffered jury instructions on self-defense, voluntary manslaughter, and involuntary manslaughter. The trial court instructed the jury on self-defense and voluntary manslaughter but refused to give the involuntary manslaughter instruction because there was no evidence to support it. The jury found Black guilty as charged, and on March 28, 2007, the trial court sentenced Black to fifty-five years imprisonment.

Black v. State, No. 71A03–0705–CR–196 (Ind.Ct.App. Oct. 9, 2007) (“Black II ”) (some citations omitted). The same attorney (“Counsel”) who represented Black in his appeal in Black I also represented him at trial and on appeal in Black II.

[3] Black filed a direct appeal in Black II, claiming that the trial court erred in refusing to give his proffered jury instruction on involuntary manslaughter. Another panel of this Court affirmed his conviction in a memorandum decision. Id.

[4] In September 2008, Black's court-appointed counsel filed a petition for postconviction relief (“PCR”), and in October 2008, the State filed its answer.¹ In February 2012, Black's counsel withdrew his appearance. In January 2014, Black filed his pro se amended petition for postconviction relief, claiming that he received ineffective assistance of counsel during his second trial and appeal in Black II. On the day of his March 2014 evidentiary hearing, Black orally requested a continuance in order to secure the attendance of Counsel as a witness. The postconviction court denied his motion and took judicial notice of its case files in Black I and Black II as well as the trial transcript in Black II. On May 21, 2014, the court entered its findings of fact and conclusions of law in an order denying Black's petition for postconviction relief. Black now appeals. Additional facts will be provided as necessary.

Discussion and Decision

[5] Black contends that the postconviction court erred in denying his petition for postconviction relief. The petitioner in a postconviction proceeding “bears the burden of establishing grounds for relief by a preponderance of the evidence.” Ind. Postconviction Rule 1(5) ; Passwater v. State, 989 N.E.2d 766, 770 (Ind.2013). When issuing its decision to grant or deny relief, the postconviction court must make findings of fact and conclusions of law. Ind. Postconviction Rule 1(6). A petitioner who appeals the denial of his postconviction petition faces a rigorous standard of review. Massey v. State, 955 N.E.2d 247, 253 (Ind.2011). In conducting our review, we neither reweigh evidence nor judge witness credibility; rather, we consider only the evidence and reasonable inferences most favorable to the judgment. McKnight v. State, 1 N.E.3d 193, 199 (Ind.Ct.App.2013), trans. denied (2014). “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.” Passwater, 989 N.E.2d at 770 (citation and quotation marks omitted). In other words, if a postconviction petitioner was denied relief in the proceedings below, he must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite the one reached by the postconviction court. Massey, 955 N.E.2d at 253. Postconviction relief does not offer the petitioner a super appeal; rather, subsequent collateral challenges must be based on grounds enumerated in the postconviction rules. McKnight, 1 N.E.3d at 199. These rules limit the scope of relief to issues unknown or unavailable to the petitioner on direct appeal. Id. Where, as here, the judge who presided over the defendant's trial is also the judge who presided over his postconviction proceedings, the postconviction court's findings and judgment should be entitled to “greater than usual deference.” Hinesley v. State, 999 N.E.2d 975, 982 (Ind.Ct.App.2013) (citation omitted), trans. denied (2014).²

Section 1—The postconviction court acted within its discretion in denying Black's motion for continuance.

[6] Black asserts that the postconviction court abused its discretion in denying his oral motion for continuance. Where a continuance is not required by statute, a ruling on a motion for continuance lies within the postconviction court's discretion and will be reversed only for an abuse of that discretion and resulting prejudice. Evans v. State, 809 N.E.2d 338, 342 (Ind.Ct.App.2004), trans. denied. An abuse of discretion occurs where the court's ruling is against the logic and effect of the facts and circumstances before it or where the record demonstrates prejudice from the denial of the continuance. Ross v. State, 844 N.E.2d 537, 544 (Ind.Ct.App.2006).

[7] As a pro se litigant without legal training, Black is held to the same standard as a licensed attorney. Evans, 809 N.E.2d at 344. He requested a continuance on the day of the PCR hearing. A continuance requested for the first time on the morning of trial is not favored. Williams v. State, 29 N.E.3d 144, 147 (Ind.Ct.App .2015). See also Laster v. State, 956 N.E.2d 187, 192–93 (Ind.Ct .App.2011) (holding that trial court acted within its discretion in denying last-minute oral motion for continuance to party seeking to locate a witness, where other witnesses and jurors were present and ready to proceed and where moving party made no showing as to likelihood of locating...