Sharp v. State

42 N.E.3d 587 (Table)

Brent D. SHARP, Appellant–Petitioner

v.STATE of Indiana, Appellee–Defendant.

No. 18A02–1410–PC–728.

Court of Appeals of Indiana.

Nov. 30, 2015.

Brent D. Sharp, Wabash Valley Correctional Facility, Carlisle, IN, Appellant, Pro Se.

Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorney for Appellee.

MEMORANDUM DECISION

PYLE, Judge.

Statement of the Case

[1] Appellant/Petitioner, Brent D. Sharp (“Sharp”), appeals the trial court's denial of his petition for post-conviction relief, in which he requested relief from his convictions for two counts of Class A felony burglary resulting in bodily injury and one count each of: Class B felony rape; Class D felony criminal confinement; Class A felony criminal deviate conduct; Class A felony child molesting; and Class C felony criminal confinement.

[2] Sharp was convicted after DNA taken from the victims of the above offenses matched his DNA sample in Indiana's DNA database. On direct appeal, Sharp's appellate counsel contested the submission of Sharp's DNA sample into the DNA database and argued that Sharp's trial counsel had been ineffective for failing to object to the admission of the DNA sample evidence at trial. This Court held that Sharp was collaterally estopped from challenging the submission of the DNA sample because he had previously litigated the issue in another cause. For the same reason, we held that Sharp's trial counsel was not ineffective for failing to object to the DNA evidence at trial.

[3] Sharp, pro se, then filed a petition for post-conviction relief. In his petition, he argued that his appellate counsel was ineffective for failing to raise several additional claims of trial counsel ineffectiveness on appeal and for failing to present an issue competently. Sharp asserts that his appellate counsel should have raised that his trial counsel rendered ineffective assistance by failing to: (1) request a change of judge; (2) request a severance of the charges against Sharp; (3) object to the State's questions about the Indiana DNA database and a witness's reference to Sharp as a convicted offender; (4) object to the admission of evidence of Sharp's DNA sample at trial; and (5) object to improper aggravating factors upon sentencing. Sharp also argued that his appellate counsel failed to present his ineffective assistance of trial counsel argument competently on appeal. The post-conviction court denied Sharp's petition.

[4] On appeal, Sharp argues that the post-conviction court erred in finding that he had received effective assistance on each of the above issues. Because we do not find that Sharp met his burden on post-conviction, we affirm the postconviction court's denial of his petition for post-conviction relief.

[5] We affirm.

Issue

Whether Sharp's appellate counsel provided ineffective assistance.

Facts

[6] We stated the facts underlying Sharp's conviction in our opinion on his direct appeal as follows:

In December 2002, Tyjuana Thompson was living in Muncie with her two daughters, fourteen-year-old J.T.[ ] and nine-year-old A.T. On the evening of December 13, Thompson left for work around 10:00 p.m. After J.T. went to bed approximately one-half hour later, she woke up at some point and felt a sensation on her leg. Looking at the doorway, J.T. noticed a man who she initially thought was her cousin, Christopher, who had been released from prison a few months earlier. Christopher also lived next door to Thompson. The man, who wore a tan coat and a ski mask that covered his face, was subsequently identified as Sharp. Sharp approached J.T. and began to choke her. When J.T. began to fight, Sharp choked her harder and smothered her face with a pillow. Sharp then removed J.T.'s shorts and underwear and inserted his penis into her vagina. At some point during the assault, J.L. lost consciousness.

When J.L. awoke, she was lying on the floor, cross-legged, and her arms were bound with duct tape behind her back. Her mouth was also covered with tape, and she was wearing only a t-shirt. Eventually, J.L. crawled into her sister's room, where A.L. was able to remove the duct tape. The girls then called Thompson at work and told her about the incident.

The police were notified, and J.L. was transported to Ball Memorial Hospital in Muncie, where a sexual assault evidence examination was performed. During the examination of J.L., Dr. Max Rudicel found evidence of forced penetration. Indiana State Police forensic scientist Karen Bruewer analyzed the evidence and discovered sperm on the vaginal and cervical slides and swabs, the external genital swabs, and the vaginal wash. She forwarded this evidence to the Indiana State Police in Lowell, where forensic DNA analyst Nicole Ihnat prepared DNA profiles. It was determined that J .L.'s cousin, Christopher, was eliminated as a contributor of the sperm. Moreover, an initial search in the Indiana DNA database produced no matches.

On the evening of May 22, 2003, Jessica Woolums was babysitting for her six young cousins at a Muncie residence. After Jessica helped her seven-year-old cousin, C.W., do her homework, they fell asleep in the living room with the other children. At some point, a man wearing a bandana and winter hat entered the house, picked up C.W., and carried her to a back room of the residence. The man, who was subsequently identified as Sharp, asked C.W. how old she was. After C.W. replied that she was seven years old, Sharp, who was armed with a knife, removed C.W.'s clothing. He then choked C.W. to the point of unconsciousness. When she awoke, Sharp carried C.W. to the kitchen, where he inserted his penis into her anus and attempted to insert his penis into her vagina. Sharp then carried C.W. into the dining room where he again sexually assaulted her. Apparently, Jessica and the other children slept through this episode.

After Sharp left the residence, C.W. and Jessica went next door for help. The police were contacted, and C.W. was eventually transported to Ball Memorial Hospital, where two sexual assault evidence kits were taken. Dr. Rudicel observed that C.W. had been choked, and Dr. Lopiccolo noticed a tear to C.W.'s anus, evidence of forced penetration, and a white opaque cloudy material in C.W.'s rectum. Bruewer, the Indiana State Police forensic scientist, analyzed the evidence and discovered the presence of semen on both the rectal swab and the rectal smear slide.

Prior to these incidents, Sharp had been convicted of burglary in 1999, was sentenced to a three-year suspended sentence and was placed on probation until December 2, 2002, for that offense. In June 2003, Sharp's probation officer filed a petition to revoke probation, alleging that Sharp had failed to meet various conditions of probation that had been imposed upon him. Although the probation officer was aware of Sharp's violations when they occurred, the deputy prosecutor did not file the petition to revoke until June 2003, long after Sharp's probation had ended. As a consequence, on August 21, 2003, Sharp moved to dismiss the petition on the grounds that it had not been timely filed. The trial court denied the motion on August 25, 2003, placed Sharp back on probation, and ordered Sharp to provide a DNA sample. Prior to his release from the jail, Sharp submitted a DNA sample that was subsequently entered into the State's DNA database. Sharp provided the DNA sample in accordance with a nunc pro tunc order entered on September 16, 2003. This order stated that Sharp's DNA sample should have been taken when he was convicted of burglary in 1999, and that his DNA should have already been included in the database.

During the course of the investigation of the above incidents, the police department requested neighbors and family members of the victims to submit to voluntary DNA testing. Also, on September 12, 2003, a search was conducted in the DNA database, where it was determined that the DNA profile in J.T.'s case matched the DNA of Sharp, whose sample had been entered into the database in accordance with the trial court's order regarding the burglary offense and the probation revocation. Four days later, Nicole Ihnat prepared DNA profiles from the evidence that was gathered from the incident involving C.W. The DNA profile generated from the seminal material found on the rectal slide in C.W.'s case matched that of Sharp, who lived next door to C.W.

Thereafter, on October 3, 2003, Sharp was charged with [Count 1, Class A felony burglary resulting in bodily injury; Count 2, Class B felony rape; Count 3, Class D felony criminal confinement; Count 4, Class A felony burglary resulting in bodily injury; Count 5, Class A felony criminal deviate conduct; Count 6, Class A felony child molesting; and Count 7, Class C felony criminal confinement.] He then filed a motion to suppress the DNA evidence, contending that the sample had been obtained in violation of the Fourth Amendment to the United States Constitution as well as Article 1, Section 11 of the Indiana Constitution. In ruling on Sharp's motion, the trial court observed that Sharp's DNA sample had been taken pursuant to the nunc pro tunc order that had been issued.

Sharp then appealed the revocation of his probation in the burglary case, and we determined that the petition to revoke probation had not been timely filed because three of the bases that the State alleged to support the petition occurred after the probationary period had ended. See Sharp v. State, 807 N.E.2d 765, 767 (Ind.Ct.App.2004). In our opinion that was handed down on May 3, 2004, we observed that[:]

Because the probation officer knew of the violations for which the trial court revoked Sharp's probation but did not file a petition to revoke until seven months after Sharp's probationary period ended, we find that the petition should have been dismissed as untimely.

Id. at 768. We further found that Sharp's challenge to the constitutionality of Indiana Code section

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