Veal v. State

1

Paul Veal, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent

No. 22A-PC-2379

Court of Appeals of Indiana

June 27, 2023

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Marion Superior Court The Honorable Grant W Hawkins, Judge Trial Court Cause No. 49D31-1703-PC-11985

ATTORNEYS FOR APPELLANT AMY KAROZOS JOANNA GREEN INDIANAPOLIS, INDIANA

ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA ATTORNEY GENERAL SAMUEL J. DAYTON DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA

MEMORANDUM DECISION

Altice, Chief Judge

Case Summary

[¶1] Paul Veal appeals from the post-conviction court's denial of his petition for post-conviction relief. Veal presents three issues for our review:

1. Was trial counsel ineffective for failing to object to testimony from the victim's family about their sentencing recommendations during the sentencing hearing?

2. Was appellate counsel ineffective for failing to

A. challenge Veal's sentence as manifestly unreasonable?

B. challenge the admission of the victim's family's sentencing recommendations?

3. Is Veal's sentence disproportionate?

[¶2] We affirm.

Facts &Procedural History

[¶3] Our Supreme Court set out the facts in Veal's direct appeal as follows:

Late on the night of May 15, 1998, Veal, armed with a handgun, went alone to the apartment of Candace Tyler. By his own account, he first shot Tyler in the face, then raped her and finally killed her with a shot to the back of the head in order to prevent her from identifying him. At some point, he also shot and killed Tyler's dog.

Veal v. State, 784 N.E.2d 490, 492 (Ind. 2003). Veal was twenty years old when he murdered nineteen-year-old Tyler.

[¶4] Veal pleaded guilty to murder, rape, criminal confinement, and animal cruelty, and in exchange, the State agreed to withdraw its petition for the death penalty. The plea agreement contained the following sentencing provision:

At the time of the taking of the guilty plea and again at the time of [Veal]'s sentencing, the State reserves the right to question witnesses and comment on any evidence presented upon which the Court may rely to determine the sentence to be imposed; to present testimony or statements from the victim(s) or victim representative(s); and at the time of sentencing will make the following recommendation as to the sentence to be imposed: the State will file an amended petition for a sentence for Life Without Parole. The State agrees that at sentencing herein, the parties are free to present evidence in support of, and argue, a sentence in a range from a minimum eighty-five (85) years to a sentence of life without parole. The State will argue for life without parole.

Appellant's Appendix Vol. II at 92.

[¶5] Following a two-day sentencing hearing, the trial court sentenced Veal to life without parole (LWOP) on the murder charge and maximum sentences of one year on the cruelty to an animal charge, fifty years for rape, and twenty years for criminal confinement, all to run consecutively. Veal appealed his sentence to the Indiana Supreme Court. Veal v. State, 784 N.E.2d 490 (Ind. 2003). On direct appeal, Veal challenged his sentence on the grounds that the trial court erred in considering victim impact evidence and improperly found statutory mitigating circumstances to be aggravating. The Supreme Court affirmed Veal's sentence.

[¶6] Veal filed his petition for post-conviction relief on March 31, 2017. He amended his petition on January 2, 2019. The post-conviction court granted Veal's petition in part and denied it in part on September 12, 2022. Specifically, the court found that trial and appellate counsel were ineffective for failing to challenge Veal's sentence on the basis that the plea agreement did not permit his sentences for rape, criminal confinement, and cruelty to an animal to be served consecutively to his sentence for murder. The post-conviction court directed the trial court to issue "an amended abstract of judgment to reflect that the aggregate consecutive sentences for rape, criminal confinement, and cruelty to animals are unchanged except that they are ordered to be served concurrently with the [LWOP] sentence for murder." PCR Appendix at 69. In all other respects, the post-conviction court denied Veal's petition. Veal now appeals. Additional facts will be provided as needed.

Discussion &Decision

Standard of Review

[¶7] Post-conviction proceedings are civil proceedings in which a petitioner may present limited collateral challenges to a conviction and sentence. Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). The petitioner bears the burden of establishing his claims by a preponderance of the evidence. Id.

[¶8] On appeal from the denial of post-conviction relief, the petitioner "faces a rigorous standard of review, as the reviewing court may consider only the evidence and the reasonable inferences supporting the judgment of the post- conviction court." Jent v. State, 120 N.E.3d 290, 92-93 (Ind.Ct.App. 2019), trans. denied. We accept the post-conviction court's findings of fact and may reverse only if the findings are clearly erroneous. Id. The petitioner must convince us that there is "no way within the law that the court below could have reached the decision it did." Weisheit v State, 109 N.E.3d 978, 983 (Ind. 2018) (quoting Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002)), reh'g denied (2019), cert. denied, 139 S.Ct. 2749 (2019)); see also Garrett v. State, 992 N.E.2d 710, 718 (Ind. 2013) ("To prevail from the denial of post-conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court.").

1. Ineffective Assistance of Trial Counsel

[¶9] The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to counsel and mandates "that the right to counsel is the right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his counsel's performance was deficient and that he was prejudiced by the deficient performance. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). Counsel's performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. Id. The petitioner is prejudiced if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong will cause the claim to fail. French, 778 N.E.2d at 824.

[¶10] When we consider a claim of ineffective assistance of counsel, we apply a "strong presumption ... 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). Counsel'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).

[¶11] Veal argues that the post-conviction court erred in concluding that trial counsel was not ineffective for failing to object "to the victim's family giving their sentencing recommendations" during the sentencing hearing.^[1] Appellant's Brief at 18. Specifically, he maintains that counsel should have objected to testimony from the victim's family that he should be sentenced to LWOP.^[2] [¶12] We note before Veal's sentencing hearing, the State filed a memorandum of law in support of introducing victim-impact testimony and specifically noted that such testimony would include recommendations as to an appropriate sentence. At the start of the sentencing hearing, Veal's trial counsel, citing Bivins v. State, 642 N.E.2d 928 (Ind. 1994),^[3] objected to "any such evidence." Transcript Vol. I at 38. The trial court overruled the objection "for the purpose of this hearing," but noted that "[i]f we were in a trial situation, I think it would be different."^[4]Id. at 39.

[¶13] We first observe that contrary to his argument, Veal's trial counsel did object to the victim-impact testimony. Indeed, on direct appeal, our Supreme Court noted Veal's objection at the sentencing hearing to the testimony of Tyler's maternal aunt, stepfather, and mother about "the niece and daughter they had lost, the effect of the crime on them, and their own recommendations regarding Veal's sentence." Veal, 784 N.E.2d at 492-93 (emphasis supplied). The Court continued:

However, this testimony was offered in a sentencing hearing, in which Veal was sentenced for both the murder and the other counts. Although the family's opinions are not statutory aggravating factors under [Ind. Code] section 35-38-1-7.1(b), they are permissible under subsection (a)(6) as to those counts. I.C. § 35-38-1-7.1(b) and (a)(6) (2002); Loveless v. State, 642 N.E.2d 974, 978 (Ind. 1994) (expressly approving victim impact testimony from the victim's family). There is a presumption that a court in any proceeding that is tried before the bench rather than before a jury "renders its decision solely on the basis of relevant and probative evidence." Coleman v. State, 558 N.E.2d 1059, 1062 (Ind. 1990). The same is true of a sentencing hearing.

Id. The Court also noted that in the sentencing order, the trial court relied only on statutory factors in determining eligibility for LWOP,...