Ferrin v. State

995 N.E.2d 1088

Harold FERRIN, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1210–PC–839.

Court of Appeals of Indiana.

Oct. 17, 2013.

Appeal from the Marion Superior Court; The Honorable Mark D. Stoner, Judge; The Honorable Jeffrey L. Marchal, Master Commissioner; Cause No. 49G06–0807–PC–174418.

Harold Ferrin, Bunker Hill, IN, Appellant pro se.

Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

BROWN, Judge.

Harold Ferrin, pro se, appeals the post-conviction court's denial of his petition for post-conviction relief. Ferrin raises two issues which we consolidate and restate as whether the court erred in denying his petition for post-conviction relief. We affirm.

FACTS AND PROCEDURAL HISTORY

The relevant facts as discussed in Ferrin's direct appeal follow:

On July 10, 2008, R.F. (Mother) was bathing her six-year-old daughter, M.Y., when she noticed redness on M.Y.'s genital area. The next day, Mother decided to take M.Y. to Ferrin's house. M.Y. refers to Ferrin as “Papaw Dick” because her stepfather is Ferrin's son. Tr. p. 114. While in transit, Mother asked M.Y. if anyone had “touched her down there.” Id. at 120. M.Y. covered her mouth and said that she could not tell because “Papaw Dick said she would be in trouble.” Id. After Mother reassured M.Y. that she was not in trouble and that she had not done anything wrong, M.Y. responded, “Yes, I did. I went like this.” Id. M .Y. moved her hand in a back and forth motion as she told her Mother what she had done to Ferrin. Mother immediately took M.Y. to St. Vincent's hospital to be examined.

M.Y. was examined by Dr. Jason Little. Dr. Little noted that M.Y. had minimal redness on her genital area, but that the exam was otherwise normal. Dr. Little explained that such redness is usually attributable to poor hygiene and that the exam did not reveal whether M.Y. had been sexually abused.

Ferrin v. State, No. 49A05–0907–CR–429, slip op. at 2–3 (Ind.Ct.App. January 12, 2010).

On July 23, 2008, the State charged Ferrin with two counts of child molesting as class A felonies and two counts of child molesting as class C felonies. Id. at 3. On May 18, 2009, Ferrin's jury trial commenced. Id. M.Y. testified that she touched Ferrin's “private” in his bedroom when his clothes were off. Id. M.Y. stated that she had both hands on Ferrin's “private” and that she rubbed it with an “up and down” motion. Id. M.Y. explained that it was Ferrin's idea to put lotion on her hand, and that she had touched him this way more than once, including one time in the barn where he “peed” on the rug. Id.

M.Y. further testified that she and Ferrin were not wearing clothes when his “private” and finger touched her “little girl.” Id. In addition, neither of them was wearing clothes when Ferrin had M.Y. put her finger inside his anus. Id. After each of these incidents, Ferrin admonished M.Y. not to tell anyone. Id. Ferrin denied having any sexual activity with M. Y., but admitted that he had touched her vagina and buttocks when he applied diaper rash cream because she was red all of the time. Id.

After three to four hours of deliberating, the jury sent out a note stating, “A few of the jurors have reasonable doubt and feel they will not [ ]/cannot ... change their opinion based on the evidence we have on all counts.” Id. at 4. Defense counsel requested that the trial court ask the jury whether they were at an impasse, while the State urged the trial court to instruct the jury to continue deliberations. Id. Over defense counsel's objection, the trial court instructed the jury to continue deliberations, but noted that at some point, if a decision was not reached, it would have to ask the jury whether it was at an impasse. Id. Less than an hour after the trial court had instructed the jury to continue deliberations, the jury found Ferrin not guilty on Count I, but guilty on Counts II, III, and IV. Id.

At the June 4, 2009 sentencing hearing, the trial court concluded that Ferrin's lack of criminal history, his history of gainful employment, and his service in the National Guard were mitigating circumstances. Id. In aggravation, the court observed that Ferrin had violated a position of trust. Id. The court sentenced Ferrin to consecutive terms of thirty years and four years on Counts II and III respectively, but did not enter judgment on Count IV because of double jeopardy concerns. Id.

On direct appeal, Ferrin argued that the trial court abused its discretion by not asking the jury if it was at an impasse. Id. at 2. Ferrin also challenged his thirty-year sentence and argued that the trial court erroneously applied Ind.Code § 35–50–2–2(i) in violation of the prohibitions against ex post facto laws contained in the United States and Indiana Constitutions. Id. We rejected Ferrin's argument that reversal was required by the trial court's failure to ask the jury if it was at an impasse and utilizing Indiana Jury Rule 28 to assist the jury. Id. at 5. With respect to his sentence, we held that the trial court erroneously believed it was required to sentence Ferrin to an executed term of thirty years. Id. at 9. Accordingly, we remanded to give the trial court the opportunity to resentence Ferrin on Count II. Id. at 9–10.

On April 30, 2010, Ferrin, pro se, filed a petition for post-conviction relief. In May 2012, Ferrin filed a motion to amend his petition, and the court granted the motion. In August 2012, Ferrin filed another motion to amend his petition, and the court again granted the motion. On September 20, 2012, the court held an evidentiary hearing, and Ferrin's appellate counsel and trial counsel testified. Ferrin did not testify nor did he introduce the trial record or other exhibits. On September 24, 2012, the court denied Ferrin's petition for post-conviction relief.

DISCUSSION

Before discussing Ferrin's allegations of error, we note that although Ferrin is proceeding pro se, such litigants are held to the same standard as trained counsel and are required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind.Ct.App.2004), trans. denied. We also note the general standard under which we review a post-conviction court's denial of a petition for post-conviction relief. The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004); Ind. Post–Conviction Rule 1(5). When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d at 679. 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. Further, the post-conviction court in this case entered findings of fact and conclusions thereon in accordance with Indiana Post–Conviction Rule 1(6). 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, we accept findings of fact unless clearly erroneous, but we accord no deference to conclusions of law. Id. The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Id.

To the extent that Ferrin fails to put forth a cogent argument, cite to authority, or cite to the record, we conclude that such arguments are waived. See, e.g., Cooper v. State, 854 N.E.2d 831, 834 n. 1 (Ind.2006) (holding that the defendant's contention was waived because it was “supported neither by cogent argument nor citation to authority”); Shane v. State, 716 N.E.2d 391, 398 n. 3 (Ind.1999) (holding that the defendant waived argument on appeal by failing to develop a cogent argument); Smith v. State, 822 N.E.2d 193, 202–203 (Ind.Ct.App.2005) (“Generally, a party waives any issue raised on appeal where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record.”), trans. denied. We also observe that Ferrin did not offer into evidence or ask the court to take judicial notice of the trial transcript, the charging information, or other documents related to the trial record and therefore the trial record was not before the court for consideration.¹See Mitchell v. State, 946 N.E.2d 640, 644–645 (Ind.Ct.App.2011) (stating that Ind. Evid. Rule 201(b)(5)² allows a post-conviction court to judicially notice the transcript of the evidence from the petitioner's underlying criminal proceedings, and noting that the petitioner did not offer his trial record into evidence at the post-conviction hearing or ask the post-conviction court to take judicial notice of the record, that the court did not judicially notice the record sua sponte, and that the trial record therefore was never before the post-conviction court for consideration), reh'g denied, trans. denied.

Ferrin appears to argue that Ind.Code § 35–42–4–3 does not contain an element of intent and is overbroad as it punishes protected activities such as natural childbirth or “using a suppository on an infant.” Appellant's Brief at 11. Without citation to the record, Ferrin argues that “[i]t is undisputed fact that the charging information failed to allege criminal intent as an element of child molesting by deviate sexual conduct.” Id. at 12. The State argues that Ferrin has waived these claims.

Ferrin did not raise these claims on direct appeal and does not allege that his trial counsel or appellate counsel were ineffective on these bases. Consequently, we conclude that Ferrin waived these claims. See Reed v. State, 866 N.E.2d 767, 768 (Ind.2007) (holding that only issues not known at the time of the original trial or issues not available on direct...