Leer v. State

978 N.E.2d 757

Dennis LEER, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 20A04–1204–PC–185.

Court of Appeals of Indiana.

Nov. 2, 2012.

Appeal from the Elkhart Circuit Court; The Honorable Gene R. Duffin, Senior Judge; Cause No. 20C01–0807–PC–10.

Stephen T. Owens, Public Defender of Indiana, J. Michael Sauer, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

FRIEDLANDER, Judge.

Dennis Leer appeals the denial of his petition for post-conviction relief (PCR), by which he sought to challenge the sentence he received following his conviction of murder. Leer presents the following restated issue for review: Did the post-conviction court err in determining that Leer's trial and appellate counsel did not render ineffective assistance in failing to challenge the imposition of Leer's sixty-year sentence for murder consecutively to a sentence for an unrelated conviction for attempted murder?

We reverse and remand with instructions.

The facts of the underlying occurrence were set out in this court's affirmance of Leer's conviction upon direct appeal, as follows:

Leer and Marie Kline were friends in high school in the 1980s. During the summer of 1985, Leer and his girlfriend briefly shared an apartment with Marie and her boyfriend. During that time, Leer and Marie became involved in a sexual relationship. After the couples moved apart, Leer and his girlfriend got married and no longer saw Marie.

Two years later, between Thanksgiving and Christmas in 1987, Leer and his wife happened to see Marie at a local shopping mall. The Leers invited Marie to their home for dinner. During the dinner, Marie and Leer's wife decided that they would try and keep in touch and get together more than they had in the past. Around that time, the Leers began experiencing marital problems because Leer's wife thought Leer was spending too much time with one of his friends. For example, Leer's wife became very angry when Leer and his friend went out of town on Christmas Eve and Leer was not at home with her and their new baby.

During this time, Marie was living with her father and her brother and working both a full-time and a part-time job. On December 29, 1987, Marie went to bed after eating dinner with her father and brother. When Marie's father (“Kline”) went to bed, he turned off all of the interior and exterior lights and locked the front door. At approximately 1:00 a.m., someone rang the front doorbell. Kline heard Marie get up and answer the door and he then fell back to sleep. When Kline got up the following morning, he noticed that Marie was not at home. Kline also noticed that Marie's car was still in the garage, the exterior lights on the house were on, and the front door was unlocked. Kline further noticed in the snow on his driveway one set of footprints leading from the driveway to the front door of the house and two sets of footprints leading from the front door of the house back to the driveway. The footprints ended as if two people had each gotten into a different side of the same vehicle.

When Marie's employer called looking for Marie because she had not reported for work that morning, Kline contacted the police to report that Marie was missing. The police found Marie's coat on a pile of snow in a church parking lot about a mile from her house. There appeared to be a bullet hole and blood on the left side of the jacket.

A few days later, on January 1, 1988, the police found Marie's dead body in a nearby open field. She was lying on her back with her arms positioned over her head, and her intestines were coming out of a gunshot wound on her left side. Marie had also been shot in the mouth. Her jaw was fractured, the back of her throat and the base of her skull were perforated, and her brain stem was blown away. Both shots were made with a shotgun, as evidenced by the numerous shotgun pellets found inside Marie's wounds. In addition, the police found a spent twelve-gauge shotgun shell near Marie's body.

The police also noticed drag marks in the snow from the road to the body. There was a large pool of blood in one area of the drag-path. The police further noticed one set of footprints going from the road to the large pool of blood on the drag-path, then back to the road, back to the drag-path, and on to where the body was found. Vaginal and cervical swabs were taken from Marie during an autopsy.

The Elkhart County Sheriff's Department investigated the case and considered several suspects, including Anthony Zeiger and Michael Lambright, Marie's former boyfriends and Scott Ulrich, her boyfriend at the time of her death. No arrests were made however. In 2002, the Sheriff's Department turned the case over to the Indiana State Police Cold Case Squad. The detectives assigned to the case sent Marie's vaginal and cervical slides to the crime lab, which discovered sufficient spermatozoa on the slides from which DNA could be extracted and analyzed for comparison purposes. Subsequent tests revealed that Leer's DNA matched the DNA found on Marie's vaginal and cervical slides.

Also in 2002, Leer's fiancee,¹ Crystal Lam, learned from Leer's brother that Leer had previously been involved in a sexual relationship with Marie. When Lam confronted Leer with this information, Leer told her that he had had sexual intercourse with Marie the night she disappeared. According to Leer, his car got stuck in the snow that night, and he went to Marie's house between twelve and one o'clock in the morning to see if her brother could help him. Marie answered the door and told him that her brother was sleeping but that she could help. They walked to his car, got it out of the snow, and had sexual intercourse. Marie then accompanied Leer to pick up a friend. On the way back to Marie's house, the friend and Marie got into an argument when the friend insulted Marie's brother, and the friend used Leer's twelve-gauge shotgun to shoot Marie.

The friend told Leer to stop the car, and the friend dragged Marie into a field. Leer heard another gunshot, and the friend came back to the car and told Leer to drive away. The friend had Marie's coat and asked Leer to pull into a nearby church parking lot where the friend left the coat. Thinking that she was helping Leer, Lam told Leer's story to the police. Leer was subsequently charged with and convicted of murder. He did not testify at trial and never named the friend that allegedly killed Marie.

Leer v. State, No. 02A04–0412–CR–701, 846 N.E.2d 374 (Ind. Ct.App. April 18, 2006), slip op. at 2–5.

On October 8, 2004, following a jury trial, Leer was convicted of murdering Marie Kline. His conviction was affirmed by this court upon direct appeal, as set out above. On July 11, 2008, Leer, pro se, filed a PCR petition. The Indiana Public Defender entered its appearance on Leer's behalf, after which Leer's petition was amended. Following an evidentiary hearing, the post-conviction court denied Leer's petition on March 19, 2012.

In a post-conviction proceeding such as this, the petitioner bears the burden of establishing his claims for relief by a preponderance of the evidence. Kubsch v. State, 934 N.E.2d 1138 (Ind.2010). When appealing from the denial of a PCR petition, the petitioner stands in the position of one appealing from a negative judgment and therefore must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. We further observe that the post-conviction court is the sole judge of the weight of the evidence and credibility of witnesses. Fisher v. State, 810 N.E .2d 674 (Ind.2004). Therefore, its findings and judgment will be reversed only upon a showing of clear error, i.e., that which leaves us with a definite and firm conviction that a mistake has been made. Kubsch v. State, 934 N.E.2d 1138.

Leer was convicted in 1988 of attempted murder as a class A felony and sentenced to forty years imprisonment. Following his 2004 conviction for murder, the trial court sentenced Leer to sixty years imprisonment, to be served consecutively to the forty-year sentence for the 1988 conviction. In his unsuccessful direct appeal of the 2004 conviction, Leer presented four issues for review, but did not challenge the consecutive aspect of his sentence.

In the present appeal of the denial of his PCR petition, Leer contends trial and appellate counsel rendered ineffective assistance in failing to challenge the trial court's order to impose his sixty-year sentence in the present case consecutively to the forty-year sentence in the 1988 case. Leer was represented by the same attorney both at trial and upon direct appeal and presents his argument in the form of ineffective assistance of both trial and appellate counsel. We note, however, that this is not a scenario in which trial counsel is required, or even expected, to lodge an objection. See Reed v. State, 856 N.E.2d 1189, 1194 (Ind.2006) (“[c]ounsel need not object to preserve a sentencing error for review”). Therefore, we will analyze this issue as involving a claim of ineffective assistance of appellate counsel.

A claim of ineffective assistance of appellate counsel is evaluated using the standard articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Hampton v. State, 961 N.E.2d 480 (Ind.2012). In order to establish a claim of ineffective assistance of counsel, a petitioner must demonstrate that counsel performed deficiently and the deficiency resulted in prejudice. Id. In applying this standard, we ask whether, in view of all the circumstances, counsel's actions were “reasonable ... under prevailing professional norms.” Strickland v. Washington, 466 U.S. at 688. Our scrutiny of counsel's performance must be “highly deferential.”...