Blackmon v. State

JEFFERY BLACKMON, Appellant-Petitioner, v. STATE OF INDIANA, Appellee-Respondent.

No. 49A02-1406-PC-423

COURT OF APPEALS OF INDIANA

December 23, 2014

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.

ATTORNEYS FOR APPELLANT:

STEPHEN T. OWENS

Public Defender of Indiana

RICHARD DENNING

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

J.T. WHITEHEAD

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Lisa F. Borges, Judge

Cause No. 49G04-9206-PC-80375

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge

Upon the denial of his petition for post-conviction relief, Jeffery W. Blackmon appeals, contending that the post-conviction court erred when it found that appellate counsel was not ineffective for failing to challenge Blackmon's sentence as being erroneous and manifestly unreasonable.¹

We affirm.

FACTS AND PROCEDURAL HISTORY

The facts supporting Blackmon's convictions as set forth by our Supreme Court on direct appeal are as follows:²

The defendant was a former Stationers³ employee. He entered the store at approximately 4:45 p.m. on Friday, May 29, 1992. Stationers employee Robert Willey spoke with the defendant as he selected three legal forms offered for sale and asked where to find the collection of cardboard cut-outs such as those of a pig, a baby, and Marilyn Monroe which were displayed in the front of the store. The store was due to close at 5:00 p.m., and Willey left at approximately 4:55 p.m. to catch a bus, leaving only the defendant and Willey's co-employee, Fedayeen Turner, in the store. Turner was never again seen alive.

Early on Monday, June 1, 1992, the manager of the store arrived to find its lights on. He discovered Turner's body lying face down in the office of the store and observed an empty cash register drawer on the floor, a brass disc from the tip of an umbrella, and the cash register tape displaying an incomplete last transaction for items totalling $29.78 and indicating that no payment had been tendered. Cash in excess of $250.00 was missing. Turner had been killed by a .22 caliber bullet to the back of his head. The police found the defendant's fingerprints on a greeting card lying on the counter at the checkout register, on a Stationers bag located on top of the empty cash

drawer found on the floor of the store, and on one of the store's entrance doors.

On the afternoon of Friday, May 29, 1992, the defendant had shown a .22 caliber handgun to a friend. Later that evening, another of his friends saw him with a .22 caliber handgun. During that evening, the defendant gave friends gifts including a troll key chain, a pig key chain, and a cardboard cut-out statue of Marilyn Monroe. The defendant was observed that evening with a stack of folded money approximately four inches thick.

The cash register tape found at the murder scene recorded a transaction made at approximately 4:59 p.m. on Friday, May 29, 1992. The entries shown on the register tape were those which would have been made for a purchase of the greeting card found with the defendant's fingerprints, three legal forms, the troll key ring, the pig key ring, and the Marilyn Monroe cut-out.

Beginning the day following the incident, the defendant stayed at a series of two hotels, registering with a false name at each. When he checked out of the first hotel, an umbrella missing a brass disc similar to the one found at the Stationers store was found in the room he had occupied.

The week of the murder, the defendant told an acquaintance that if he had to kill someone, he would shoot them in the back of the head. Another acquaintance testified that in approximately mid-May of 1992, the defendant said that "he always had to have money, that he had to have money in his pocket, he liked having money, he couldn't deal unless he had money in his pocket." When asked whether he would ever kill somebody, the defendant told his acquaintance, "If I needed the money bad enough, I would."

Blackmon v. State, 647 N.E.2d 1126, 1128 (Ind. 1995) (citations omitted).

Blackmon was charged with murder, felony murder, Class A felony robbery, and Class A misdemeanor carrying a handgun without a license. The jury convicted Blackmon of all four counts, and the trial court entered conviction as to the murder count, the robbery count, and the handgun count. Satisfying double jeopardy concerns, the trial court reduced the robbery conviction from a Class A to a Class B felony and did not enter judgment of conviction as to the felony murder count, finding that it would merge into the murderconviction. Tr. at 1153. In pronouncing the sentence, the trial court made the following statement regarding the aggravating and mitigating circumstances:

The Court has read the presentence report and heard the testimony submitted. The Court has also heard the evidence submitted during trial. The Court does find the following aggravating circumstance, in that the Defendant's prior criminal history involving convictions for fraud and theft on July 10 of '91 and for criminal conversion on June 29, of '92. The Court further finds that there are aggravating circumstances in that the robbery was planned; that the Defendant did, in fact, wait until closing before he began his steps to take—to perform the robbery and the ensuing murder. The Court does find by reason of mitigation the Defendant's age in this matter. The Court would find also that the Court would be sentencing the Defendant as to Count One to a period of 60 years; as to Count Three, a period of 20 years; as to Count Four, a period of 1 year. The Court further finds further aggravation and the reason that the counts should all run consecutively in that the Defendant did not, from any evidence submitted, appear to have—had any need to murder the victim, which, in fact, was done needlessly. For this reason, all counts will run consecutively.

Id. at 1154-55.

On direct appeal, Blackmon's appellate counsel, Timothy Burns, filed a twenty-page brief with the Indiana Supreme Court challenging the sufficiency of the evidence. Pet'r's. Ex. 1. The Supreme Court affirmed the convictions. Blackmon, 647 N.E.2d at 1128. Thereafter, our Supreme Court denied a motion for rehearing, and the United States Supreme Court denied certiorari in October 1996.

Blackmon, acting pro se, filed a petition for post-conviction relief in July 1997, but withdrew this petition without prejudice in January 2003. In April 2011, again acting pro se, Blackmon filed a petition for post-conviction relief claiming as grounds for relief the ineffective assistance of trial and appellate counsel, and free-standing claims regarding his sentence. The State filed an answer in May 2011, denying the material allegations and asserting the defenses of waiver and res judicata. Appellant's App. at 308. At the May 21,2013 post-conviction hearing, Blackmon, by counsel, stated his intention to proceed solely on the claim that appellate counsel was ineffective.

At the post-conviction hearing, Burns testified that he had been in practice for thirty-nine years, mainly working in the area of criminal law, doing both criminal defense and appeals. He said that he began his career as a deputy attorney general. After about a year and a half, Burns served as a public defender in criminal court for three years and then moved to private practice. Burns testified that due to the passage of time—since the direct appeal was filed in 1994—he had limited recollection of Blackmon's case and no longer had a file for Blackmon. Even so, Burns stated that it was his standard practice to raise all issues of merit and not abandon any.

Burns testified that when he puts together an appeal, "Well, obviously, I read the record carefully and it's different now than it was many years ago." P-CR Tr. at 15. When asked what his main considerations are in writing a brief, Burns stated, "the main considerations would be being sure that issues that are meritorious and have some chance of either reversal or, or having the case remanded or brought to the Court of Appeals, or I think in this case the Supreme Court's attention. Those are the main things." Id. at 16. Burns recalled that he met with Blackmon several times, "really focusing on the evidence of, of that conviction itself." Id. at 18. "I felt like there was . . . really a reasonably good chance of reversal on the, on the merits of the case itself. I thought there was a lack of evidence on some points, but I don't remember the details." Id. at 19. Burns recalled "it was a largely circumstantial evidence case," and felt that it "was one of those kind of casesthat probably if it had been tried ten times, maybe three or four of those times it would have been a different result. I can remember that much." Id. at 23.

Regarding his failure to challenge Blackmon's sentence, Burns said, "About the only, the only reaction I can have to that is back at that time I don't think that a lot of sentencing issues were really being litigated on, on appeal, at least as I recall." Id. at 20. While Burns did not specifically recall whether he considered challenging the length or consecutive nature of Blackmon's sentence, Burns said, that at the time of the appeal, he was aware of the applicable standards of review for challenging a sentence. Id. at 24.

The State and Blackmon, by counsel, filed their respective proposed findings of fact and conclusions thereon. Thereafter, the post-conviction court denied Blackmon's petition for post-conviction relief on May 22, 2014, finding that Blackmon: (1) had failed to prove that it was unquestionably unreasonable for appellate counsel not to raise the sentencing issues on direct appeal; and (2) had not shown a reasonable probability that such claims would have...