Johnson v. State

832 N.E.2d 985

Lloyd D. JOHNSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 47A01-0407-PC-304.

Court of Appeals of Indiana.

August 11, 2005.

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Lloyd D. Johnson, Tell City, Appellant pro se.

Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Petitioner, Lloyd D. Johnson (Johnson), appeals the denial of his Petition for Post-Conviction Relief (PCR).

We affirm.

ISSUES

Johnson raises five issues on appeal, which we consolidate into four issues and restate as follows:

1. Whether the post-conviction judge properly presided over Johnson's post-conviction hearing;

2. Whether the post-conviction court erred when it denied Johnson's motion to subpoena certain witnesses;

3. Whether the post-conviction court properly denied admission of Johnson's alleged newly discovered evidence; and

4. Whether Johnson was denied effective assistance of trial, sentencing, and appellate counsel.

FACTS AND PROCEDURAL HISTORY

We adopt the statement of facts set forth in this Court's memorandum decision in Johnson v. State, No. 47A01-9911-CR-384, 737 N.E.2d 1241, slip. op. at pp. 2-3 (Ind.Ct.App. October 27, 2000), which read as follows:

On August 1, 1997, Johnson and Scott Nicholson [Nicholson] agreed to make methcathinone. They agreed that Nicholson would pay for the methcathinone ingredients, that Johnson would show Nicholson how to manufacture it, and that they would each get half of the finished product. On that same day, Nicholson and Johnson went to five different stores to purchase the necessary ingredients.

On August 2, 1997, Nicholson and Johnson gathered more ingredients and equipment and drove to Brian Fisher's [Fisher] house. Fisher agreed to help them make methcathinone in his backyard and to allow them to use his freezer in exchange for a share of the finished product. Subsequently, the three began manufacturing methcathinone pursuant to Johnson's directions. When Fisher left at approximately 4:30 p.m., Johnson [laid] down on a small trampoline next to the truck in which they had placed the equipment.

Meanwhile, Officer David Walker [Officer Walker] of the Bedford Police Department received an anonymous phone call from someone who stated that people were manufacturing methcathinone in Fisher's backyard. Officer Walker and several other officers drove to Fisher's residence, arriving at the same time that Fisher returned home. After Fisher consented to a search of his property, the police went into his backyard and found Johnson lying on the trampoline.

On August 5, 1997, the State filed an information charging Johnson with Count I, attempted dealing in a schedule I controlled substance, a Class B felony, Ind.Code §§ 35-41-5-1, 35-48-4-2; and Count II, conspiracy to commit dealing in a schedule I controlled substance, a Class B felony, I.C. § 35-41-5-2. On December 11, 1997, the State filed an additional information amending Count I to dealing in a schedule I controlled substance as a Class B felony, I.C. § 35-48-4-2. On April 14, 1999, following a jury trial, Johnson was found guilty on both counts. On October 9, 1999, the trial court sentenced Johnson to two consecutive terms of twenty years imprisonment.

Upon appeal, this Court held in an unpublished memorandum decision that Johnson's convictions violated Indiana's prohibition against double jeopardy and instructed the trial court to vacate Johnson's conspiracy conviction. On remand, the trial court vacated the conspiracy conviction, leaving Johnson with a single twenty-year sentence.

On January 13, 2001, Johnson filed a motion to compel production of documents from his former appellate counsel, which the trial court denied on January 18, 2001. In Johnson's appeal of that decision, Johnson failed to file an appendix, and we dismissed Johnson's appeal for failure to comply with Indiana Appellate Rule 49(A). See Johnson v. State, 756 N.E.2d 508 (Ind.Ct.App.2001), trans. granted. Our supreme court granted transfer and held that the better practice to follow in a criminal appeal where an appendix is not filed or where an appendix is missing documents required by rule is to order compliance with the rules within a reasonable time, such as thirty days. Johnson v. State, 756 N.E.2d 965, 967 (Ind.2001).

Upon remand of that appeal to this Court, we held that the trial court erred in denying Johnson's Motion to Compel Production of Documents from his former appellate counsel, and remanded the cause with instructions that the trial court grant Johnson's Motion to Compel any documents he might have been entitled to receive. Johnson v. State, 762 N.E.2d 222, 223 (Ind.Ct.App.2002), reh'g denied.

In the meantime, on June 28, 2001, Johnson filed a petition for post-conviction relief (Petition). At the same time, Johnson filed a motion for change of judge along with a supporting affidavit. On August 22, 2001, the post-conviction judge entered a summary denial of Johnson's Motion for Change of Judge and Petition.

Thereafter, Johnson appealed the post-conviction court's summary denial of his Motion for Change of Judge and Petition. On appeal, we held that the denial of Johnson's Motion for Change of Judge was not erroneous, and that there was no error in denying Johnson's claims for prosecutorial misconduct, newly discovered evidence, and his motions for change of venue and judge. Johnson v. State, No. 47A05-0110-PC-439, 783 N.E.2d 800, slip. op. at pp. 12-13 (Ind.Ct.App. January 13, 2003). However, we did hold that an evidentiary hearing was required to address Johnson's ineffective assistance of counsel claims. See id.

On October 9, 2003, Johnson filed an Amended Petition for Post-Conviction Relief. Thereafter, on February 10 and February 18, 2004, the post-conviction court held an evidentiary hearing on Johnson's ineffective assistance of counsel claims. On June 24, 2004, the post-conviction court issued its Findings of Fact and Conclusions of Law denying Johnson's Petition.

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

DISCUSSION AND DECISION

I. Post-Conviction Relief 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; Sanders v. State, 764 N.E.2d 705, 709 (Ind.Ct.App.2002), trans. denied. 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 to the one reached by the post-conviction court. Catt v. State, 749 N.E.2d 633, 640 (Ind.Ct.App.2001), trans. denied. The post-conviction court is the sole judge of the weight of the evidence and the credibility of the witnesses. Woods v. State, 701 N.E.2d 1208, 1210 (Ind.1998), reh'g denied.

Further, the post-conviction court in this case entered findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1, § 6. "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." Little v. State, 819 N.E.2d 496, 500 (Ind.Ct.App.2004) (quoting Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000), reh'g denied), trans. denied. In this review, findings of fact are accepted unless clearly erroneous, but no deference is accorded conclusions of law. Id. Additionally, we remind Johnson that he is not entitled to a perfect trial, but is entitled to a fair trial, free of errors so egregious that they, in all probability, caused the conviction. Averhart v. State, 614 N.E.2d 924, 929 (Ind.1993).

II. Presiding Judge

Johnson first contends that the post-conviction judge committed reversible error when he failed to follow the prescribed procedures for selection of a special judge.¹ In addition, Johnson claims that the Lawrence Circuit and Superior Courts were without jurisdiction to appoint a special judge because we had jurisdiction over his case.

The selection of a special judge in criminal cases is governed by Indiana Criminal Rule 13, which provides in pertinent part: "(A) Application of Rule. This rule shall apply to the reassignment of the case and the selection of special judges in felony and misdemeanor cases where a change of judge is granted pursuant to Ind.Crim. Rule 12(B) or an order of disqualification or recusal is entered in the case." The procedure for selecting a special judge in counties with less than four judges is governed by Ind.Crim. Rule 13(C) which provides in pertinent part:

In counties where there are fewer than four (4) judges, the local rule required by Ind.Crim. Rule 2.2 shall include an alternative assignment list with judges of contiguous counties and senior judges assigned to the court for use in the event a change of judge is granted or a judge is disqualified or recuses.

Lawrence County Circuit and Superior Courts have three regular judges and therefore adopted a local rule for the selection of a special judge in criminal cases:

RULE 4: Change of Judge in Criminal Cases

In the event the regular Judge of the court is disqualified, the case shall be assigned as follows: From the Judge of the Circuit Court to the Judge of Superior Court, Division 1; from the Judge of Superior Court, Division 1 to the Judge of Superior Court, Division 2; from the Judge of Superior Court, Division 2 to the Judge of Circuit Court. In the event that all three regular Judges of the Lawrence Circuit and Superior Courts are disqualified, the case shall be assigned first to the judges of the Monroe Circuits, Division 1 through 6, then to the Judges of the Jackson Circuit and Superior Courts, then to the Judges of Washington Circuit and Superior Courts, then to the...