Shepherd v. State Of Ind.

924 N.E.2d 1274

Michael SHEPHERD, Appellant-Petitioner,v.STATE of Indiana, Appellee-Respondent.

No. 70A01-0908-PC-388.

Court of Appeals of Indiana.

April 14, 2010.

Transfer Denied June 24, 2010.

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Susan K. Carpenter, Public Defender of Indiana, Hope Fey, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

Michael Shepherd appeals the denial of his petition for post-conviction relief (“PCR”). We affirm in part, reverse in part, and remand with instructions to vacate Shepherd's conviction for possession of cocaine.

Issues

We address the following three issues:

I. Whether Shepherd's habitual offender claims are barred by the doctrine of res judicata;

II. Whether Shepherd's trial counsel and appellate counsel provided ineffective assistance by failing to argue that the State was statutorily prohibited from seeking to have him sentenced as a habitual offender; and

III. Whether his trial counsel provided ineffective assistance due to an alleged conflict of interest.

Facts and Procedural History

The facts as reported in this Court's memorandum decision on direct appeal are as follows:

On August 11, 2004, Rush County Sheriff's Department Detective Joseph Jarman was contacted by Mary Jane Smiley, who indicated a willingness to make a controlled buy of cocaine from Shepherd. Smiley subsequently arranged the deal by telling Shepherd that she “had hooked up with somebody” and “needed an eight ball.” After Shepherd agreed to obtain the drugs, Smiley met with Detective Jarman who provided purchase money, which Smiley gave to Shepherd before he drove to Indianapolis. Smiley told Shepherd that she would be waiting at the Rushville Holiday Inn Express, and would call him later with the room number.

After Shepherd left for Indianapolis, Smiley met Detective Jarman at the Holiday Inn, as he had arranged. Detective Jarman provided money for the rental of two adjacent rooms, 120 and 122. Although Detective Jarman knew that the crime would be more serious if committed within 1,000 feet of a public park, he testified that he did not choose the location for its proximity to a local park, approximately 850 feet from the hotel rooms. Once the rooms were acquired, Smiley called Shepherd and told him to meet her in room 122.

When Shepherd arrived at the hotel room, he gave Smiley a small plastic bag of cocaine. She handed it to Detective Jarman, who then asked Shepherd if he could obtain more cocaine. Shepherd responded affirmatively. He was arrested, and a search of the car he had driven to Indianapolis revealed a cigarette package containing cocaine. Later tests indicated that Shepherd had provided Smiley with 1.53 grams of cocaine, and that .68 grams of cocaine were in the cigarette carton.

Shepherd v. State, No. 70A01-0504-CR-166, slip op. at 2-3, 842 N.E.2d 896 (Ind.Ct.App. Jan.20, 2006) (citations and footnote omitted) trans. denied.

The State charged Shepherd with class A felony dealing in cocaine within 1000 feet of a public park ¹ and class B felony possession of cocaine within 1000 feet of a public park ² and separately alleged that he was a habitual offender based on the following two prior felony convictions: a 1977 Louisiana conviction for attempted armed robbery and a 1997 Louisiana conviction for possession of cocaine. A jury found Shepherd guilty as charged, and the trial court sentenced him to concurrent terms of forty years for dealing in cocaine and fifteen years for possession of cocaine, with a thirty-year habitual offender enhancement. Id., slip op. at 3.

In his direct appeal, Shepherd presented three arguments: (1) his class A felony conviction must be reduced to a class B felony conviction and his class B felony conviction must be reduced to a class D felony conviction because, pursuant to Indiana Code Section 35-48-4-16 (“Defenses to charge of selling narcotics near school or family housing”), his proximity to the park was brief and no one under eighteen was in the area and he was in the proximity of the park at the request of a law enforcement officer; (2) the State failed to prove that he was the person convicted of the prior felonies supporting the habitual offender allegation; and (3) his prior Louisiana conviction for possession of cocaine was improperly relied upon as a prior unrelated felony conviction for purposes of the habitual offender statute. This Court concluded that Shepherd waived the first issue because it had not been raised at trial; the evidence was sufficient to connect Shepherd to the two prior unrelated felony convictions; and his Louisiana conviction was properly relied upon as a prior unrelated felony conviction. Id., slip op. at 10.

Shepherd then filed a petition for PCR, asserting that he received ineffective assistance of trial and appellate counsel. Specifically, Shepherd contended that his trial counsel was ineffective in that he (1) failed to argue that Shepherd was within 1000 feet of a park at the request of a law enforcement officer and failed to tender an instruction on the relevant statute; (2) failed, due to a conflict of interest, to cross-examine Bobbie Smiley, Mary Jane's daughter, about a recently dismissed criminal charge and pending criminal charges on which trial counsel also represented her just before and during Shepherd's trial; and (3) failed to argue at sentencing that Shepherd's habitual offender enhancement should attach to the class B felony rather than the class A felony conviction. Appellant's App. at 24-25. Shepherd argued that his appellate counsel was ineffective in that he failed to argue that (1) the trial court erred in ordering his habitual offender enhancement to be served consecutive to the sentence for his class A felony conviction without specific reference as to which sentence was being enhanced; and (2) Shepherd's sentence was inappropriate.

Following a hearing, the post-conviction court issued findings of fact and conclusions of law, granting Shepherd's petition in part. The post-conviction court found that Shepherd's trial counsel provided ineffective assistance by failing to assert that Shepherd was within 1000 feet of a park at the suggestion of a law enforcement officer. Therefore, the post-conviction court reduced Shepherd's class A felony conviction to a class B felony and his class B felony conviction to a class D felony and remanded for resentencing. ³ The post-conviction court otherwise denied Shepherd's petition in relevant part as follows:

CONCLUSIONS OF LAW

....

4. Shepherd was found to be a habitual offender under Ind.Code § 35-50-2-8 on the basis of two prior unrelated felony convictions. The issue of the eligibility of Shepherd's predicate offenses were [sic] argued both in the direct appeal and at the hearing which was held on this Petition for Post Conviction Relief. This Court finds that Shepherd was habitual eligible based on evidence presented at trial in regards to [the] 1977 conviction for [attempted] armed robbery and the 1997 Felony conviction for possession of cocaine (both being two unrelated prior felonies). As the Court of Appeals pointed out, it was discovered in [Shepherd's] Pre-Sentence Investigation Report that he did have a prior unrelated conviction for dealing cocaine in Texas. Ind.Code § 35-50-2-8(b)(3)(C) states that the total number of unrelated convictions that the person has for dealing does not exceed one. This specific paragraph does not require the unrelated conviction to be a felony nor does it require that a dealing conviction be a “prior” unrelated conviction. Therefore, this Court finds that the underlying offense of dealing cocaine in the present case counts as one of these unrelated convictions. [Shepherd] conceded this point in his brief of appellant in the direct appeal. As to [Shepherd's] argument that [he] was not found to have had a previous Texas conviction by jury, that is not necessary, due to the fact that the State did prove to a jury the two prior unrelated Louisiana convictions. It would have then been up to [Shepherd] to present evidence that he had no other dealing convictions other than the underlying offense, and according to the evidence presented in this case, it appears to be a very high probability that he could not do so based on the Texas dealing offense, whether it was a felony or not. Also, based on the finding of the Court of Appeals and the arguments of both the State and [Shepherd] that the underlying offense could be used as one unrelated dealing conviction, even if [Shepherd] had moved for a dismissal of the Habitual Offender Enhancement prior to trial, the Court would have been prohibited from granting such a motion until the trial on the underlying offense had been concluded.

....

10. The Court concludes that trial counsel was not laboring under a significant conflict of interest due to a simultaneous representation of Bobbie Smiley. The Court also concludes that counsel was not sufficiently stymied in his ability to cross examine Ms. Smiley. [Shepherd] has failed to meet his burden of proof in showing that an absence of this conflict would have probably resulted in a different result. [Shepherd] was not denied his rights under the Sixth Amendment of the United States Constitution.

....

12. [B]ased on the Court's previous conclusions in regards to the Habitual Offender Enhancement, the Court finds that Appellate counsel's assistance may not be considered ineffective for failing to raise an omitted insufficiency of the evidence claims [sic] and inadequately briefing claims in regards to that Enhancement because the Court does find that [Shepherd] was eligible for the Habitual Offender Enhancement.

Appellant's Br. at 34-38. Shepherd appeals.

Discussion and Decision

Standard of Review

We observe that post-conviction proceedings do not grant a...