Davis v. State Of Ind.

WILLIAM C. DAVIS, Appellant-Petitioner,

v.STATE OF INDIANA, Appellee-Respondent.

No. 82A01-0909-PC-460

No. 82D02-0411-FA-911

82D03-0808-PC-14

Court Of Appeals Of Indiana

September 16, 2010

APPELLANT PRO SE: WILLIAM C. DAVIS Carlisle, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana

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.

APPEAL FROM THE VANDERBURGH SUPERIOR COURT The Honorable Wayne S. Trockman, Judge

MEMORANDUM DECISION-NOT FOR PUBLICATION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Petitioner, William C. Davis (Davis), appeals the post-conviction court's denial of his petition for post-conviction relief.

We affirm.

ISSUES

Davis raises thirteen issues on appeal, which we consolidate and restate as the following two:

(1) Whether the post-conviction court properly denied Davis' petition for postconviction relief which raised numerous procedural errors which he perceived had been committed during the post-conviction proceedings; and

(2) Whether Post-Conviction Rule 1(9)(b) violates the Equal Privileges and Immunities Clause of Article 1, Section 23 of the Indiana Constitution.

FACTS AND PROCEDURAL HISTORY

The facts, as found by this court on direct appeal, are as follows:

[I]n February 2004, while working as a volunteer on a crisis line, Davis became acquainted with fellow volunteer [M.Y.]. [M.Y.] had four children, the oldest of which was twelve-year-old J.C. J.C. has Tourette's syndrome, learning disabilities, attention-deficit hyperactivity disorder, and attends special needs classes. Davis visited [M.Y.]'s house in Evansville frequently and spent the night there several times. Davis took J.C. fishing, swimming, and biking, and took J.C. to his home for several overnight visits.

Davis molested J.C. during at least one overnight stay at [M.Y.]'s house. After [M.Y.] and her family changed residences, Davis took J.C. to [M.Y.]'s largely vacant former residence and molested him further. Davis fondled J.C.'s penis on more than one occasion, performed oral sex on J.C., and performed anal sex on J.C. "plenty of times." Tr. at 84. Davis also hadJ.C. fondle his penis and perform oral sex on him. In late July 2004, J.C. told [M.Y.] about the molestations. [M.Y.] called the police.

On July 29, 2004, Evansville Police Detective Jim Harpenau interviewed J.C. The next day, Detective Harpenau called Davis, told him that a young child had made an allegation against him, and said that he wanted to talk with Davis about the allegation. That same day, Davis called [M.Y.] and left a voicemail message stating, "[M.Y.] please please talk to me about this. Please call me. Please." State's Exh. 17. [M.Y.] played this message and two previous messages from Davis for Detective Harpenau, who recorded them from his phone.

Davis fled to Fargo, North Dakota, where he obtained a driver's license using his brother's name to avoid detention. Tests confirmed the presence of Davis's sperm and genetic material consistent with J.C.'s DNA on a sweater found in a bedroom in [M.Y.]'s former residence. A warrant was issued for Davis's arrest. On October 6, 2005, FBI Special Agent Matt Mohr received a tip that Davis was living in Fargo under his brother's name. Agent Mohr obtained a copy of the photo from Davis's North Dakota driver's license and went with two other agents to the address provided by the tipster. The agents knocked on the door. Davis did not respond. Agent Mohr asked another tenant of the building to call Davis and tell him that there were three men downstairs who wanted to purchase the residence. Several minutes later, Davis came downstairs with a half-shaven head and was placed under arrest. Davis claimed to be his brother. The agents told Davis that they would fingerprint him to confirm his identity, but that it would be easier if he told them the truth. Davis states, "[A]lright, I'm Bill, my life is over." Id. at 225.

Davis v. State, 2007 WL 2028095 (Ind. Ct. App. July 16, 2007).

The State charged Davis with three Counts of Class A felony child molesting, two Counts of Class C felony child molesting, and with being a repeat sexual offender. On April 20, 2006, a jury found Davis guilty on all child molesting Counts and, thereafter, Davis admitted to being a repeat sexual offender. On June 14, 2006, the trial court sentenced Davis to eight-year terms on each of the Class C felony convictions, to be served consecutive to the concurrent fifty-year terms on each of the Class A felony convictions. The trial courtenhanced Davis' sentence by ten years for being a repeat sexual offender, resulting in an aggregate sentence of sixty-eight years. The trial court ordered the sentence to be served consecutive to a fifty-two year sentence that Davis was already serving for child molestation convictions in Posey County, Indiana. Davis appealed his conviction, challenging the admission of the voicemail messages and the imposition of his sentence. On July 16, 2007, we affirmed the trial court in all respect and the supreme court subsequently denied transfer.

On August 22, 2008, Davis filed a petition for post-conviction relief. In his petition, which is more than 180 pages long, he raised over 150 claims of error. The Public Defender Office filed an appearance and a notice of present inability to respond, indicating that the Office must assist petitioners on a first-come, first-serve basis on the date of filing and that the caseload did not allow for Davis' petition to be investigated at that time. On February 17, 2009, Davis filed a declaration that he was proceeding pro se together with a motion asking the post-conviction court to order the State to produce the original, certified copy of the direct appeal transcript. The following day, the post-conviction court granted Davis' declaration but denied his motion for the State to produce the original transcript. On March 10, 2009, the State filed a motion to proceed by affidavit pursuant to Ind. Post-Conviction Rule 1(9)(b). The State's motion was granted the same day and the post-conviction court gave Davis sixty days in which to submit his affidavits and certified documents. On April 27, 2009, Davis filed a motion for a change of judge, which was denied on May 22, 2009. That same day, Davis also filed a "Notice of Temporary Address-And More." (Appellant's App. p. 71). On May 19, 2009, Davis filed a request for a continuance of his deadline tosubmit affidavits, which the post-conviction court also denied on May 22, 2009. On May 29, 2009, the post-conviction court issued written findings of fact and conclusions of law denying post-conviction relief because Davis "did not submit affidavits or documents to support the claims for relief." (Appellant's App. p. 44).

Davis now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

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.

II. Procedural Errors

On appeal, Davis raises a number of procedural claims regarding the post-conviction proceedings and the denial of relief. Specifically—and we agree with the State's understanding of Davis' brief—Davis claims that the post-conviction court: 1) improperly denied his request to subpoena witnesses; 2) improperly denied Davis the opportunity topresent evidence; 3) failed to enter findings specifically addressing all of Davis' claims; 4) prevented Davis from obtaining and submitting the record of the direct appeal; 5) falsely claimed that Davis had presented no evidence; 6) denied Davis an evidentiary hearing; 7) improperly denied Davis' request for an extension of time in which to submit affidavits; and 8) wrongly denied his request for a change of judge. In addition, Davis claims that the State failed to file a "real" answer in response to his petition for post-conviction relief and that he was denied the assistance of post-conviction counsel. (Appellant's Br. pp. 33-37).

Besides these explicitly enumerated claims, Davis asserts that "[t]here are more than 130 instances of error and misconduct listed in the [p]etition for [post-conviction relief]" which are all "solid grounds for reversal" and requests this court to "read the [p]etition and reverse the conviction." (Appellant's Br. p. 34). Indiana Appellate Rule 46(A)(8) requires that an Appellant support each contention in his appellate brief with an argument, including citations to legal authorities, statutes, and the record for support. As such, merely incorporating an issue by reference does not satisfy the requirements of the Appellate Rule. See Pinkston v. State, 821 N.E.2d 830, 842 (Ind. Ct. App. 2004), trans. denied. Therefore, Davis waived review of these 130 claims; however, we will review Davis' claims enumerated above.

First, at the start of the proceedings, the post-conviction court ordered Davis to submit his cause by affidavit pursuant to P-C.R. 1§9(b). Davis now contends that the postconviction court abused its discretion by proceeding by affidavit; instead, he maintains, heshould have been given the opportunity to...