Shanabarger v. State

846 N.E.2d 702

Ronald SHANABARGER, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 41A05-0508-PC-452.

Court of Appeals of Indiana.

May 3, 2006.

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Susan K. Carpenter, Public Defender of Indiana, Amy E. Karozos, Deputy Public Defender, Indianapolis, for Appellant.

Steve Carter, Attorney General of Indiana, Andrew A. Kobe, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

BAKER, Judge.

Appellant-petitioner Ronald L. Shanabarger appeals from the denial of his petition for post-conviction relief, challenging the effectiveness of his trial counsel. Specifically, Shanabarger contends that his trial attorneys were ineffective because they: (1) failed to adequately respond to an instance of juror misconduct; (2) improperly permitted Shanabarger's sister and brother-in-law to visit him in jail; (3) failed to object to the modification of a tendered instruction that the trial court gave regarding Shanabarger's confessions; and (4) failed to object to a confession that he made to the police chaplain. Concluding that Shanabarger has failed to establish the ineffectiveness of his trial counsel, we affirm the judgment of the post-conviction court.

FACTS

The facts, as reported in Shanabarger's direct appeal, are as follows:

On June 20, 1999, the Franklin Police Department responded to a call at Amy and Ronald Shanabarger's residence after Amy discovered that their seven-month-old son, Tyler, had died in his crib. Tyler's body was eventually transferred to the Indiana University Medical Center where an autopsy was performed the following day. The pathologist, Dr. Michael Clark, initially determined that Tyler's death was consistent with Sudden Infant Death Syndrome (SIDS).

Shortly after Tyler's funeral, however, Shanabarger admitted to Amy that he had killed the child by wrapping his head in plastic wrap and suffocating him. Shanabarger then went to the Johnson County Sheriff's Office and told several detectives that he had killed Tyler. Shanabarger explained that he killed the child as an act of revenge against Amy for refusing to return from a vacation to attend his father's funeral. On June 24, 1999, Shanabarger was formally charged with the murder. Shanabarger then gave two taped statements to the police admitting that he had killed Tyler.

Shanabarger also met with Reverend Mark Maynard, the police chaplain. Prior to their conversations, Reverend Maynard informed Shanabarger that any statements made to him would not be confidential and further stated that he would recount their conversation to the detectives. Notwithstanding such a warning, Shanabarger admitted to Reverend Maynard that he had killed Tyler by wrapping cellophane or plastic wrap around his head and suffocating him.

While Shanabarger was awaiting trial, his court-appointed counsel, Richard Tandy, arranged a visit between Shanabarger, his sister Benita and his brother-in-law, Larry Savage (the Savages). Tandy told Shanabarger that anything he told the Savages would not be considered privileged communication. Nonetheless, Shanabarger revealed to them that he killed Tyler. He also acknowledged that Amy was not involved and further stated that he waited until Tyler was old enough to roll over so it would appear as a SIDS death.

Shanabarger wrote a number of letters to Amy from prison admitting that he killed Tyler, and he again told his relatives that he had committed the crime as well as how he did it. In light of these confessions and statements, the police seized three pieces of cellophane wrap that were found in Shanabarger's yard. Those samples were compared with various creases and anomalies that were noted on photographs of Tyler. The State, however, did not disclose those test results to Shanabarger in accordance with the trial court's discovery order. To the contrary, the existence of the comparison was not provided to Shanabarger until after the State had presented its case-in-chief. After DNA tests had been performed on the materials, a pathologist concluded that the cause of Tyler's death was non-specific asphyxia and that the manner of death was undetermined. At the trial, Tandy testified as to some of the statements that Shanabarger had made to his sister and brother-in-law during the jail visit, including the possibility that he would plead guilty to the murder so the State would forgo seeking the death penalty. At the conclusion of a nine-day jury trial on May 8, 2002, Shanabarger was found guilty as charged.

Shanabarger v. State, 798 N.E.2d 210, 213-14 (Ind.Ct.App.2003), trans. denied.

On direct appeal, Shanabarger raised the following issues: (1) his confessions should have been suppressed because the State had failed to establish the corpus delicti of the offense; (2) the trial court erred in permitting his originally-appointed counsel to testify regarding conversations that occurred between Shanabarger and the Savages; (3) the trial court erred in allowing the testimony of Randy Maynard in violation of the clergyman privilege; (4) the trial court erred in refusing to grant his motion for a mistrial because exculpatory evidence had not been disclosed to him in a timely manner; and (5) the trial court erred in interviewing a juror outside the presence of defense counsel. We affirmed Shanabarger's conviction in all respects. Id. at 219-20.

On February 26, 2004, Shanabarger filed a pro se petition for post-conviction relief, and the State Public Defender filed an amended petition on March 28, 2004. In addition to the claims of error set forth above, Shanabarger alleged in the pro se petition that he was entitled to relief because trial counsel: (1) did not adequately prepare for trial; (2) failed to object to the introduction of Shanabarger's letters that he had written to his wife in violation of the corpus delicti rule; and (3) failed to preserve insanity and mental retardation defenses.

At the post-conviction hearing that commenced on May 2, 2005, an alternate juror — John Dalton — testified that he was involved in an exchange with the trial judge regarding an alleged claim by Shanabarger that he had tried to plead guilty. Dalton testified that he had heard another juror — Ron Bible — state, on the first day of trial, that Shanabarger had attempted to plead guilty. Dalton responded, "That's not true." PCR Tr. p. 20. Dalton did not remember if any of the other jurors actually heard the comments. Additionally, Jay Hoffman and Jennifer Auger, Shanabarger's trial attorneys, both testified that they were present during the exchange between the trial judge and Dalton. Auger remembered the judge strongly admonishing Dalton for being late, and Hoffman recalled that the judge had admonished one of the male jurors. However, neither Auger nor Hoffman remembered hearing anything about a juror indicating that Shanabarger had tried to plead guilty.

Following the hearing, the post-conviction court denied Shanabarger's request for relief. In the order denying relief, the post-conviction court determined that the following issues were barred on res judicata grounds because they had already been decided in Shanabarger's direct appeal: (1) trial counsel failed to protect the attorney-client privilege in light of the conversations that Shanabarger had with the Savages; (2) trial counsel was ineffective for failing to object to the admission of Shanabarger's letters that he had written to his wife; and (3) trial counsel unreasonably invited a confession from Shanabarger in the presence of third parties.

The post-conviction court went on to address the remaining issues on their merits, concluding that Shanabarger failed to meet his burden of proof and that he "was more than adequately represented by competent counsel who spent an inordinately large amount of time in the defense of this case." Appellant's App. p. 81. Shanabarger now appeals.

DISCUSSION AND DECISION

I. Standards of Review

A. Post-Conviction Proceedings

The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); McCarty v. State, 802 N.E.2d 959, 962 (Ind.Ct.App.2004), trans. denied. When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. 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. Post-conviction procedures do not afford petitioners with a "super appeal." Richardson v. State, 800 N.E.2d 639, 643 (Ind.Ct.App.2003), trans. denied. Rather, they create a narrow remedy for subsequent collateral challenges to convictions that must be based upon grounds enumerated in the post-conviction rules. Id.; see also P-C.R. 1(1).

In general, freestanding claims of error are not available in a post-conviction proceeding because of the doctrines of waiver and res judicata. Timberlake v. State, 753 N.E.2d 591, 597 (Ind.2001). If an issue was known and available but not raised on direct appeal, it is waived by procedural default. Bunch v. State, 778 N.E.2d 1285, 1289 (Ind.2002). Similarly, if an issue was raised on appeal, but decided adversely, it is res judicata. Timberlake, 753 N.E.2d at 597. And a claim of ineffective assistance of counsel is properly presented in a post-conviction proceeding if it was not raised on direct appeal. Id.

B. Ineffective Assistance of Counsel

When evaluating Shanabarger's claims of ineffective assistance of counsel, we apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Pinkins v. State, 799 N.E.2d 1079, 1093 (Ind. Ct.App.2003). First, the defendant must show that counsel's performance was deficient. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. This requires a showing that counsel's...