McKnight v. State

1 N.E.3d 193

Freddie L. McKNIGHT, III, Appellant–Petitioner,

v.STATE of Indiana, Appellee–Respondent.

No. 20A03–1109–CR–454.

Court of Appeals of Indiana.

Dec. 31, 2013.

Freddie L. McKnight, III, New Castle, IN, pro se.

Gregory F. Zoeller, Attorney General of Indiana, Ian McClean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

Freddie L. McKnight, III, pro se, appeals the denial of his petition for post-conviction relief. On appeal, McKnight contends that the post-conviction court erred when it concluded that he was not denied the effective assistance of trial and appellate counsel. He also claims that he was denied a procedurally fair post-conviction hearing because his appointed public defender withdrew his appearance prior to the hearing and McKnight proceeded pro se. In addition, McKnight alleges that he is entitled to a new trial because the State withheld favorable evidence in violation of his due process rights. Finding that the post-conviction court did not clearly err when it denied McKnight's petition, we affirm.

Facts and Procedural History

The relevant facts indicate that on May 31, 2006, “a cooperating source working with Officer Shawn Turner of the Elkhart County Interdiction and Covert Enforcement Unit purchased 8.709 grams of cocaine freebase or crack from McKnight.” McKnight v. State, No. 20A05–0708–CR–469, slip op. at 1, 2008 WL 383689 (Ind.Ct.App. Feb. 14, 2008), trans. denied. Specifically, under the direction of Officer Turner, cooperating source Mickie Rhymer called McKnight and arranged to buy a quarter ounce or “quad” of cocaine from McKnight. Trial Tr. at 90. Officers searched Rhymer, gave her $500 of photocopied cash to cover the drug purchase and a debt owed by Rhymer to McKnight, and wired her with a recording device. Rhymer and an undercover officer traveled to a residence in Rhymer's vehicle. Rhymer entered the kitchen of the residence, where she saw McKnight and scales with a bag of cocaine on it. Rhymer spoke with McKnight, and he indicated that he was giving her a little “extra” cocaine. Id. at 97. Rhymer gave McKnight $500 in cash, and he gave her the bag later found to contain over eight grams of cocaine. Rhymer left the residence, was again searched by officers, and was found to only have the cocaine that she purchased from McKnight. As a result, the State charged McKnight with class A felony dealing in cocaine weighing three grams or more. Following a trial held on November 13 and 14, 2006, a jury found McKnight guilty as charged. The trial court imposed a sentence of forty-eight years. On direct appeal,this Court affirmed McKnight's conviction. McKnight, slip. op at 4.

McKnight subsequently filed a pro se petition for post-conviction relief. The State answered, and on July 15, 2010, the post-conviction court held an evidentiary hearing. The hearing was continued to February 24, 2011. Before that hearing, McKnight filed a first and a second amended petition for post-conviction relief. Evidentiary hearings were again held on February 24 and 25 and March 10, 2011. On May 18, 2011, the post-conviction court issued its findings of fact, conclusions of law, and judgment denying post-conviction relief.

Thereafter, on June 17, 2011, McKnight delivered a pro se motion to correct error to prison officials for mailing to the Elkhart Circuit Court. The motion to correct error was file-stamped by the clerk of the Elkhart Circuit Court when it was received on June 20, 2011. The post-conviction court later held a hearing on the motion to correct error. At the outset of the hearing, the post-conviction court noted that McKnight's motion was untimely filed but proceeded with the hearing. The post-conviction court entered its order denying the motion to correct error on August 29, 2011. McKnight delivered a pro se notice of appeal to prison officials for mailing on September 28, 2011. That notice was deemed filed by this Court on September 30, 2011.

Several months later, after numerous defective filings and McKnight's failure to timely file an appellant's brief, on May 21, 2012, this Court dismissed the appeal with prejudice pursuant to Indiana Appellate Rule 45(D). However, on June 4, 2012, our motions panel granted McKnight's motion to file a belated brief and reinstated the appeal. Following numerous additional filings and extensions of time granted to both parties by this Court, the appeal became ready for our review.

We note that, in addition to responding to the arguments raised by McKnight in his appellant's brief,¹ the State cross-appealed, arguing that McKnight's appeal should be dismissed because his motion to correct error was untimely, and thus this Court lacks subject matter jurisdiction to consider his appeal. Agreeing with the State that we lack jurisdiction, we issued a memorandum decision dismissing the appeal. See McKnight v. State, No. 20A03–1109–CR–454, 2013 WL 2253891 (Ind.Ct.App. May 22, 2013), trans. granted. McKnight filed a petition to transfer, and, by order of our supreme court, transfer was granted and our memorandum decision was vacated. We have been directed by our supreme court that our jurisdiction has been invoked, and therefore we now consider McKnight's appeal on the merits.²

Standard of Review

The appellate standard of review regarding post-conviction proceedings is well settled. Recently, in Wilkes v. State, 984 N.E.2d 1236 (Ind.2013), our supreme court reiterated,

Post-conviction proceedings are civil proceedings in which the defendant must establish his claims by a preponderance of the evidence. Post-conviction proceedings do not offer a super appeal, rather, subsequent collateral challenges to convictions must be based on grounds enumerated in the post-conviction rules. Those grounds are limited to issues that were not known at the time of the original trial or that were not available on direct appeal. Issues available but not raised on direct appeal are waived, while issues litigated adversely to the defendant are res judicata. Claims of ineffective assistance of counsel and juror misconduct maybe proper grounds for post-conviction proceedings.

Because the defendant is appealing from the denial of post-conviction relief, he is appealing from a negative judgment and bears the burden of proof. Thus, the defendant must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision. In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did. We review the post-conviction court's factual findings for clear error, but do not defer to its conclusions of law.

Id. at 1240 (citations and quotation marks omitted). We will not reweigh the evidence or judge the credibility of witnesses, and will consider only the probative evidence and reasonable inferences flowing therefrom that support the post-conviction court's decision. Graham v. State, 941 N.E.2d 1091, 1096 (Ind.Ct.App.2011), aff'd on reh'g,947 N.E.2d 962.

Ineffective Assistance of Counsel

McKnight argues that the post-conviction court erred in finding that he was not denied the effective assistance of trial or appellate counsel. We review claims of ineffective assistance of counsel under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Bieghler v. State, 690 N.E.2d 188, 192 (Ind.1997), cert. denied (1998). To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his counsel's performance was deficient and that the petitioner was prejudiced by the deficient performance. Ben–Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052),cert. denied (2001). A counsel's performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind.2002). To establish prejudice, the petitioner 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. Isolated poor strategy, inexperience, or bad tactics does not necessarily constitute ineffective assistance. Clark v. State, 668 N.E.2d 1206, 1211 (Ind.1996), cert. denied (1997). When considering a claim of ineffective assistance of counsel, we strongly presume “that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Morgan v. State, 755 N.E.2d 1070, 1073 (Ind.2001). “[C]ounsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73 (Ind.2002).

We must initially acknowledge that the judge who presided over McKnight's original trial is also the judge who presided over the post-conviction proceedings. This Court has stated that a post-conviction court's findings and judgment should be entitled to “greater than usual deference” when the post-conviction judge is the same judge who conducted the original trial. See McCullough v. State, 973 N.E.2d 62, 75 (Ind.Ct.App.2012), trans. denied (2013). In such a case, the judge is uniquely situated to assess whether trial counsel's performance fell below an objective standard of reasonableness and whether, but for counsel's unprofessional conduct, there was a reasonable probability that a different verdict would have been reached. Id. (citing State v. Dye, 784 N.E.2d 469, 476 (Ind.2003) (noting that because judge presided both at original trial and post-conviction hearing, judge was in “an exceptional position” to assess weight and credibility of factual evidence and whether defendant was deprived of fair trial)). With this in mind, we turn to McKnight's claims of ineffective assistance.

I....