Walker v. State

988 N.E.2d 1181

Charles A. WALKER, Appellant–Petitioner,

v.STATE of Indiana, Appellee–Respondent.

No. 46A04–1210–PC–519.

Court of Appeals of Indiana.

May 22, 2013.

Stephen T. Owens, Public Defender of Indiana, William D. Polansky, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

Charles Walker appeals the denial of his petition for post-conviction relief. He claims that his trial and appellate counsel provided ineffective assistance in failing to challenge the sufficiency of evidence to support a habitual offender finding against him and in failing to challenge the habitual offender jury instructions and verdict form. Finding no clear error in the post-conviction court's judgment, we affirm.

Facts and Procedural History¹

The facts as summarized in an unpublished memorandum decision on Walker's direct appeal are as follows:

On November 29, 2005, Russell Folino received a telephone call from the Franklin Bar and Grill (the bar) in LaPorte County indicating that he had won a raffle prize of $730. Folino was a regular at the bar. His girlfriend drove him there around 6:00 that evening, and he collected his winnings in open view. There were roughly thirty or forty people in the bar that Tuesday evening. Folino placed all but about $100 of the money in his wallet, which he kept in his back pocket. With the remaining money, Folino began buying drinks for himself and his friends. Folino, who was very joyous about his winnings, was warned by the bartender and a friend to be more careful with the money.

Walker arrived at the bar alone around 7:00. While inside the bar, he wore a large winter jacket with a fur-[t]rimmed hood. Walker roamed the bar but at times was in close proximity to Folino. Timothy Malott, a friend of Folino's, became nervous when Walker moved in close and “seemed to be eyeballing [Folino's] wallet.” Malott nudged Folino and warned, “Hey, man, be cool with that wallet open. We don't know all these people.” Folino agreed and put his wallet back in his pocket.

Around 7:30, Folino went into the empty men's restroom, followed soon by Walker. As Folino was at the urinal, a man entered and struck him in the head multiple times from behind. The heavy blows caused Folino to collapse to one knee. Folino pushed the man against the sink, and then the man fell on top of Folino. As the two struggled on the ground, the man reached “straight for [Folino's] back pocket” and took his wallet. The man then kicked Folino and ran out the bathroom door. Folino could not identify his attacker. Folino, however, indicated that the man wore a big parka with “fur edging” around the hood, which was pulled down over his face.

Others in the bar heard the commotion coming from inside the bathroom. Soon thereafter, Walker ran out of the bathroom and out of the bar, knocking down chairs along his way. He was wearing his coat with the hood up. Malott testified that he could “definitely” tell it was Walker who ran by him and out of the bar. Folino exited the bathroom disoriented and badly beaten. He exclaimed, “That guy just stole my wallet.”

About two weeks later, Walker was arrested and he voluntarily gave a statement to a detective. Walker admitted being at the bar on the night in question. Walker stated that he was using the bathroom when an intoxicated Folino walked in and proceeded to accidentally urinate on Walker's shoe. Walker alleged that Folino then directed a racial slur at him. As a result, Walker admittedly struck Folino at least twice in the face, causing Folino to fall to the ground. Walker, however, denied robbing Folino and explained that when the incident was over[,] he (Walker) simply walked out of the bathroom and exited the bar..... Following a jury trial, Walker was convicted of robbing Folino. He was also adjudicated a habitual offender.

Walker v. State, No. 46A05–0612–CR–717, 2007 WL 2405067 (Ind.Ct.App. Aug. 24, 2007) (citations omitted).

During the habitual offender phase of Walker's trial, the State introduced exhibits containing dockets and abstracts of judgment concerning the following prior felony offenses: a 1980 robbery conviction, a 1989 burglary conviction, and two 1995 cocaine dealing convictions. Law enforcement witnesses testified concerning their investigations of and interactions with Walker at the time of his 1980 and 1989 convictions. The trial court subsequently sentenced Walker to twenty years for the robbery conviction, plus twenty years on the habitual offender count.

Walker appealed, challenging the sufficiency of the evidence supporting the robbery conviction and the appropriateness of his forty-year sentence. Another panel of this Court affirmed his conviction and sentence. He subsequently filed a petition for post-conviction relief, claiming that he received ineffective assistance from both trial and appellate counsel. Following a hearing, the post-conviction court concluded that he failed to establish that either trial or appellate counsel rendered ineffective assistance and denied his petition. He now appeals. Additional facts will be provided as necessary.

Discussion and Decision

Walker contends that the post-conviction court erred in denying his petition for postconviction relief. The petitioner in a post-conviction proceeding “has the burden of establishing grounds for relief by a preponderance of the evidence.” Ind. Post–Conviction Rule 1(5); Brown v. State, 880 N.E.2d 1226, 1229 (Ind.Ct.App.2008), trans. denied. When issuing its decision to grant or deny relief, the post-conviction court must make findings of fact and conclusions of law. Ind. Post–Conviction Rule 1(6). A petitioner who appeals the denial of his post-conviction petition faces a rigorous standard of review. Massey v. State, 955 N.E.2d 247, 253 (Ind.App.2011). In conducting our review, we neither reweigh evidence nor judge witness credibility; rather, we consider only the evidence and reasonable inferences most favorable to the judgment. Id. “A post-conviction court's findings and judgment will be reversed only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made.” Brown, 880 N.E.2d at 1230 (citation and quotation marks omitted). In other words, if a post-conviction petitioner was denied relief in the proceedings below, he must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite the one reached by the post-conviction court. Massey, 955 N.E.2d at 253.

In his post-conviction petition, Walker alleged that he received ineffective assistance of counsel. To prevail on an ineffective assistance claim, he must satisfy two components. Id. He must demonstrate both deficient performance and prejudice resulting from it. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficient performance is “representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Brown, 880 N.E.2d at 1230. We assess counsel's performance based on facts that are known at the time and not through hindsight. Shanabarger v. State, 846 N.E.2d 702, 709 (Ind.Ct.App.2006), trans. denied. Evidence of isolated poor strategy, inexperience, or bad tactics will not support an ineffective assistance claim; instead, we evaluate counsel's performance as a whole. Flanders v. State, 955 N.E.2d 732, 739 (Ind.Ct.App.2011), trans. denied (2012). “[C]ounsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption.” Ritchie v. State, 875 N.E.2d 706, 714 (Ind.2007). Prejudice occurs when a reasonable probability exists that, “but for counsel's errors the result of the proceeding would have been different.” Brown, 880 N.E.2d at 1230. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Mitchell v. State, 946 N.E.2d 640, 643 (Ind.Ct.App.2011), trans. denied. We can dispose of claims upon failure of either component. Brown, 880 N.E.2d at 1230.

I. Trial Counsel

A. Identity and Sequence of Predicate Offenses

Walker first claims that his trial counsel provided ineffective assistance in failing to challenge the sufficiency of evidence to support the habitual offender finding via a motion for directed verdict. To establish that Walker is a habitual offender, the State was required to prove beyond a reasonable doubt that he had been previously convicted of two separate and unrelated felonies. Ind.Code § 35–50–2–8.² To be “unrelated,” the defendant must have committed the second felony after being sentenced for the first and must have been sentenced for the second felony prior to committing the current felony for which the enhanced sentence was sought. Ind.Code § 35–50–2–8(c); Lewis v. State, 769 N.E.2d 243, 246 (Ind.Ct.App.2002), trans. denied. Walker asserts that the evidence was insufficient to establish (1) his identity; and (2) the sequence of the predicate offenses. The post-conviction court concluded that Walker's 1994 felony cocaine offenses were statutorily ineligible to be used as predicate offenses under the habitual offender statute. Ind.Code § 35–50–2–8(d)(3). Thus, we limit our discussion to his 1980 robbery conviction and the 1989 burglary conviction.

With respect to identity, we note that

[C]ertified copies of judgments or commitments containing the same or similar name as the defendant may be introduced to prove the commission of prior felonies, [but] there must be other supporting evidence to identify defendant as the same person named in the documents. This proof of identity may be in the form of circumstantial evidence. A sufficient connection between the documents and the defendant is made if the...