Carter v. State

898 N.E.2d 315

Che B. CARTER, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 49A04-0807-PC-444.

Court of Appeals of Indiana.

December 11, 2008.

Susan K. Carpenter, Public Defender of Indiana, James T. Acklin, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Chief Judge.

Appellant-petitioner Che B. Carter appeals the denial of his petition for post-conviction relief, arguing that the post-conviction court erroneously concluded that he did not receive the ineffective assistance of appellate counsel. Specifically, Carter argues that his appellate attorney was ineffective for failing to raise an argument on appeal that the jury was erroneously instructed on the elements of attempted murder. Finding that appellate counsel was deficient for failing to raise that argument and that Carter was prejudiced as a result, we reverse and remand with instructions to vacate Carter's attempted murder conviction and for further proceedings.

FACTS

The underlying facts, as described in one of Carter's three direct appeals, are as follows:

[On June 20, 1990,] Carter approached his victim, a woman who had filed a small claims action against his mother, under the pretense that he wanted to discuss the action with her. After speaking with her on her front porch, Carter forced his way into her home and called to an accomplice who was in a car parked near the woman's home. He then began strangling the woman, and he held her by the throat and hit her with a tire iron while his accomplice removed her pants and raped her. As the woman drifted in and out of consciousness, the two men then robbed her of numerous items in her home, including all of her telephones so that she could not call for help in the event that she regained consciousness. As the men were finishing, the woman recalls Carter telling his accomplice to be certain the woman was dead so that she would not be able to identify them later. Upon leaving, the men dead-bolted the doors and placed obstacles in front of them to impede her escape should she survive the attack and seek help.

Carter v. State, No. 49A02-0508-PC-774, slip op. p. 7, 852 N.E.2d 1051 (Ind.Ct.App. July 24, 2006) (Carter III). The victim was taken to a hospital with numerous lacerations and contusions; plastic surgery was required to repair some of her injuries. Carter v. State, No. 49A02-9108-CR-361, slip op. p. 3, 597 N.E.2d 391 (Ind.Ct.App. July 16, 1992) (Carter I). On March 19, 1991, a jury found Carter guilty of class A felony burglary, class A felony robbery, class B felony rape, and class A felony attempted murder. On May 6, 1991, the trial court sentenced Carter to twenty years for burglary, thirty years for robbery, ten years for rape, and thirty years for attempted murder, to be served consecutively, for an aggregate executed sentence of ninety years.

Carter appealed, raising four arguments: (1) the evidence was insufficient to sustain the rape and attempted murder convictions; (2) the trial court erred by denying Carter's motion for a continuance; (3) the trial court erred by admitting certain items into evidence; and (4) Carter's sentence constituted cruel and unusual punishment. This court affirmed Carter's convictions but remanded for resentencing, having found sua sponte that the same facts were used to elevate the robbery and burglary convictions to a higher level of felony and to support the attempted murder conviction, violating double jeopardy. Carter I, slip op. p. 6. On January 22, 1993, the trial court modified Carter's robbery and burglary convictions to class B felonies and revised Carter's robbery conviction to twenty years, resulting in a revised aggregate sentence of eighty years imprisonment.

On July 12, 2004, Carter was given permission to file a belated appeal of Carter I. This court reversed and remanded for resentencing, finding that the aggravators relied upon by the trial court in Carter I violated the rules announced in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Carter v. State, No. 49A05-0408-CR-436, 827 N.E.2d 661 (Ind.Ct.App. Apr. 27, 2005) (Carter II). On July 21, 2005, the trial court revised Carters sentences for class B felony burglary and robbery to ten years apiece, leaving the ten-year rape and thirty-year attempted murder sentences unchanged, for an aggregate executed sentence of sixty years. Carter appealed the resentencing decision, arguing that the trial court subjected him to vindictiveness and that the sentence was inappropriate. This court affirmed. Carter III, slip op. p. 7-8.

On November 13, 2006, Carter filed an amended petition for post-conviction relief, arguing that his appellate counsel in Carter I was ineffective for failing to argue that the jury had been improperly instructed about the specific intent required to convict him of attempted murder.¹ Following a hearing that took place on November 14, 2007, and February 6, 2008, the post-conviction court denied the petition on June 13, 2008. In relevant part, the court found as follows:

From the examination of the appellate opinion and the thorough brief of appellate counsel which raised four valid issues, it appears that [appellate counsel's] work on [Carter's] case was well within an objective standard of reasonableness based on "prevailing professional norms."

[Carter] specifically alleges deficiency in counsel's failure to raise the issue on direct appeal that trial counsels failure to instruct the jury regarding specific intent to commit attempted murder constituted fundamental error. [Carter] cites Spradlin v. State, 569 N.E.2d 948 (Ind.1991) in support of his argument that the jury instructions and charging information failed to inform the jury that specific intent was a required element of attempted murder.... The Spradlin Court held that the given instruction did not sufficiently inform the jury that one must intend to commit that crime while taking a substantial step toward the commission of the crime, and therefore reversed the conviction. Id. at 951. At the time [Carter's appellate counsel] prepared and filed [Carter's] appeal, however, there was a split in the law as to this issue and Spradlin was not controlling. See Concepcion v. State, 796 N.E.2d 1256, 1263 n. 2 (Ind.Ct.App.2003), trans. denied ( [c]larifying that "[e]ven Spradlin itself did not expressly overrule or disagree with Santana, Worley, or King. That did not occur until 1993, when our supreme court first expressly stated that Spradlin overruled those cases. See Taylor v. State, 616 N.E.2d 748, 749 (Ind.1993).") The filing of [Carter's] appellate brief and the issuance of the resulting appellate court opinion occurred in 1992. The law in effect in 1992—Santana, Worley, and King—supports [appellate counsel's] decision not to include the attempt[ed] murder instruction as an issue on appeal.

* * *

... [T]he law applied in Worley, Santana, and King ... was in flux but still in effect both when [Carter] was convicted and when his appellate brief was filed....

[T]he failure to anticipate or effectuate a change in existing law cannot support an ineffective assistance of appellate counsel claim. Given the status of the law concerning attempted murder jury instructions at the time [Carter's] appellate brief was filed—including a significant line of cases that were good law until the year after [Carter's] appeal was decided and that supported the validity of the attempt[ed] murder jury instruction given in his trial—the choice made by [appellate counsel] not to raise the issue was reasonable when that choice was made....

Appellant's App. p. 161-66 (some internal citations omitted). Carter now appeals.

DISCUSSION AND DECISION

I. Standard of Review

The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); McCarty v. State, 802 N.E.2d 959, 962 (Ind.Ct.App.2004), trans. denied. When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. On review, we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. Post-conviction procedures do not afford petitioners with a "super appeal." Richardson v. State, 800 N.E.2d 639, 643 (Ind.Ct.App.2003). Rather, they create a narrow remedy for subsequent collateral challenges to convictions that must be based upon grounds enumerated in the post-conviction rules. Id.; see also P-C.R. 1(1).

When evaluating a claim of ineffective assistance of counsel, we apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Pinkins v. State, 799 N.E.2d 1079, 1093 (Ind.Ct.App.2003). First, the defendant must show that counsel's performance was deficient. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. This requires a showing that counsel's representation fell below an objective standard of reasonableness and that the errors were so serious that they resulted in a denial of the right to counsel guaranteed to the defendant by the Sixth and Fourteenth Amendments. Id. at 687-88, 104 S.Ct. 2052. Second, the defendant must show that the deficient performance resulted in prejudice. Id. To establish prejudice, a defendant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

Claims of ineffective assistance of appellate counsel are reviewed using the same standard applicable to claims of trial counsel ineffectiveness....