Scruggs v. State

13 N.E.3d 950 (Table)

Keith SCRUGGS, Appellant–Petitioner

v.STATE of Indiana, Appellee–Respondent.

No. 49A05–1307–PC–341.

Court of Appeals of Indiana.

June 5, 2014.

Keith Scruggs, Carlisle, IN, Appellant pro se.

James B. Martin, Deputy Attorney General, Indianapolis, IN, Gregory F. Zoeller, Attorney General of Indiana, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

MATHIAS, Judge.

Keith Scruggs (“Scruggs”) was convicted in 1999 of two counts of murder, and his convictions were affirmed on direct appeal. Over ten years later, in 2010, Scruggs filed a petition for post-conviction relief, which the post-conviction court denied. Scruggs appeals pro se and claims: (1) that the post-conviction court erred in denying Scruggs's claims of fundamental error; (2) that the post-conviction court erred in finding that Scruggs was not denied the effective assistance of trial counsel; and (3) that the postconviction court erred in finding that Scruggs was not denied the effective assistance of appellate counsel.

We affirm.

Facts and Procedural History

The facts underlying Scruggs's convictions were set forth in the opinion of our supreme court in Scruggs's direct appeal as follows:

The defendant with his friend and girlfriend went to another friend's house. The defendant entered the residence which was occupied by several people. Upon recognizing one of the occupants, Lucas, as a man who had robbed him five or six months before, the defendant pulled out a revolver. One person asked the defendant if “this was a joke,” to which the defendant replied, “this is no [expletive deleted] joke.” Record at 225. Lucas ran into a bedroom and shut the door. As the defendant tried to open the door, Lucas tried to hold it closed. The defendant finally forced the door open and shots were fired as he entered the bedroom. Lucas died from multiple gunshot wounds. Oliver, another occupant of the room, was killed by a single bullet wound to her head. No witnesses testified as to who fired the shots, but there was no evidence that anyone else in the bedroom had a gun other than the defendant.

Scruggs v. State, 737 N.E.2d 385, 386–87 (Ind.2000).

On direct appeal, Scruggs claimed that “the inference that he was the shooter was merely speculation and conjecture and that the State's witnesses were not sufficiently credible to support the convictions.” Id. at 387. Our supreme court rejected this contention and held that there was sufficient evidence to support Scruggs's convictions. Id. Scruggs also claimed that “his sentences of sixty years for each murder to run consecutively [we]re manifestly umeasonable,” a contention which the court also rejected. Id.

On June 1, 2010, almost ten years after our supreme court affirmed Scruggs's convictions and sentence on direct appeal, Scruggs filed a pro se petition for postconviction relief. Scruggs filed an amended petition on March 13, 2012. In his petition, Scruggs claimed that the prosecuting attorney committed misconduct amounting to fundamental error and that he was denied the effective assistance of both trial counsel and appellate counsel. The post-conviction court held a hearing on Scruggs's petition on October 11, 2012. At this hearing, Scruggs called as witnesses his trial and appellate counsel. He also presented the affidavits of two individuals he claimed should have been called as alibi witnesses. The post-conviction court entered findings of fact and conclusions of law denying Scruggs's post-conviction petition on June 7, 2013. Scruggs now appeals pro se.

Post–Conviction Standard of Review

Post-conviction proceedings are not “super appeals” through which convicted persons can raise issues they failed to raise at trial or on direct appeal. McCary v. State, 761 N.E.2d 389, 391 (Ind.2002). Rather, post-conviction proceedings afford petitioners a limited opportunity to raise issues that were unavailable or unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind.2002). A post-conviction petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind.2008). On appeal from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. To prevail on appeal from the denial of post-conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. at 643–44.

Where, as here, the post-conviction court makes findings of fact and conclusions of law in accordance with Indiana Post–Conviction Rule 1(6), we cannot affirm the judgment on any legal basis, but rather, must determine if the court's findings are sufficient to support its judgment. Graham v. State, 941 N.E.2d 1091, 1096 (Ind.Ct.App.2011), aff'd of reh'g, 947 N.E.2d 962. Although we do not defer to the post-conviction court's legal conclusions, we review the post-conviction court's factual findings under a clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence or judge the credibility of witnesses, and we will consider only the probative evidence and reasonable inferences flowing therefrom that support the post-conviction court's decision. Id.

I. Fundamental Error

Scruggs first claims that the prosecuting attorney committed misconduct in several respects, mostly involving statements regarding Scruggs's alibi defense and the credibility of his alibi witnesses. Scruggs claims that the prosecuting attorney's behavior amounted to fundamental error. Despite some earlier inconsistency in the precedent of our supreme court,¹ the court has since clarified that even claims of fundamental error are not reviewable in post-conviction proceedings when presented as free-standing claims of error. Specifically, in Sanders v. State, 765 N.E.2d 591, 592 (Ind.2002), the court stated in no uncertain terms that “it [is] wrong to review [a] fundamental error claim in a postconviction proceeding.” Instead, the fundamental error rule applies only to direct appeals. Id. “In post-conviction proceedings, complaints that something went awry at trial are generally cognizable only when they show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal.” Id. (citing Canaan v. State, 683 N.E.2d 227, 235 n. 6 (Ind.1997) ); see also State v. Hernandez, 910 N.E.2d 213, 216 (Ind.2009) (“A petitioner for post-conviction relief cannot avoid the application of the waiver doctrine by arguing that it does not apply because the challenge raises fundamental error.”); Conner v. State, 829 N.E.2d 21, 25 (Ind.2005) (holding that where petitioner made no claim that his claim was not known or available to him in prior proceedings, his claim that he could present claim of fundamental error in successive post-conviction petition was “simply wrong.”).

Here, Scruggs presents his claims of prosecutorial misconduct as free-standing claims of fundamental error, and does not explain how his claims were “demonstrably unavailable” to him on direct appeal. His claims of fundamental error are therefore not cognizable in a petition for post-conviction relief. See Sanders, 765 N.E.2d at 592.

II. Effective Assistance of Trial Counsel

Scruggs also contends that the post-conviction court clearly erred in denying his claim of ineffective assistance of trial counsel. Our supreme court summarized the law regarding claims of ineffective assistance of trial counsel in Timberlake v. State as follows:

A defendant claiming a violation of the right to effective assistance of counsel must establish the two components set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, the defendant must show that counsel's performance was deficient. This requires a showing that counsel's representation fell below an objective standard of reasonableness, and that the errors were so serious that they resulted in a denial of the right to counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Counsel is afforded considerable discretion in choosing strategy and tactics, and we will accord those decisions deference. A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. The Strickland Court recognized that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. The two prongs of the Strickland test are separate and independent inquiries. Thus, [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.

753 N.E.2d 591, 603 (Ind.2001) (citations and quotations omitted).

A. Failure to Object

Scruggs first claims that his trial counsel was ineffective for failing to object to certain statements by the prosecuting attorney—the same statements he claims constituted fundamental error. Of course, “to prevail on a claim of ineffective assistance due to the failure to object, the defendant must show an objection would have been sustained if made.” Overstreet v. State, 877 N.E.2d 144, 155 (Ind.2007) ; accord Benefield v. State, 945 N.E.2d 791, 799 (Ind.Ct.App.2011).

The first statement by the prosecuting attorney that Scruggs claims was improper was a reference to the fact that certain individuals, who were allegedly with Scruggs at a...