Opinion
23A-PC-724
09-26-2024
Vincent Banks, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Vincent Banks, Pro Se WVCF, Carlisle, Indiana ATTORNEY FOR APPELLEE Theodore E. Rokita Indiana Attorney General Megan M. Smith Deputy Attorney General Indianapolis, Indiana
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Lake Superior Court The Honorable Mark Watson, Magistrate Trial Court Cause No. 45G02-2012-PC-38
ATTORNEY FOR APPELLANT
Vincent Banks, Pro Se
WVCF, Carlisle, Indiana
ATTORNEY FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Megan M. Smith
Deputy Attorney General
Indianapolis, Indiana
Judges Kenworthy and Felix concur.
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] Vincent Banks appeals the denial of his petition for post-conviction relief, which challenged his convictions for Attempted Murder, a Level 1 felony, and Theft, as a Level 6 felony, as well as his adjudication as a habitual offender. Banks presents the sole issue of whether he was denied effective assistance of trial and appellate counsel. We affirm.
I.C. § 35-43-4-2.
I.C. § 35-50-2-8.
Facts and Procedural History
[¶2] The underlying facts and procedural history were recited in Banks' direct appeal as follows:
The facts most favorable to the verdict are that Banks and Tiffany Young are cousins who grew up together. Banks would often help Young when her car needed repairs. In early 2017, Young drove her car to Banks' home in Gary, Indiana, where he lived with his mother (and Young's aunt), Fransis, and Fransis'
boyfriend, Jimmie Brown, and asked if he would repair the brakes on her car. After the brakes were fixed, Banks accompanied Young while she ran errands, including picking up $800.00 in cash. Young paid Banks $25.00 for the brake repair. Banks asked for additional money, and Young eventually gave him an additional $12.00.
Young drove Banks back to his house. While Young sat in her car smoking marijuana and playing with her phone, she noticed Banks constantly walking around the neighborhood and in and out of his house. Banks approached Young's car several times and asked her to take him to a certain location, but Young refused because she did not want to drive while her car smelled like marijuana. At some point, Young dozed off. She was awakened by a "click[ing] noise" and turned to see Banks coming into the backseat of her car. Transcript, Volume 2 at 167. Banks put his arm over Young's face.
Young initially thought Banks was playing and said, "stop, Vincent." Id. at 168. But then Banks told her to "shut the f**k up" and kept repeating that he was going to kill her as he cut her throat with what she thought was a razor. Id. at 167.
Young was able to escape through the passenger side of the car. While running to Banks' house, Young noticed Banks driving away in her vehicle. Brown answered the door and Young informed Brown and Fransis that Banks had cut her throat and tried to kill her. Fransis called the police.
Officers arrived at the scene where Brown and Fransis informed them that Banks had cut Young. Young was transported to Methodist Hospital where it was determined that she suffered a "laceration to the anterior neck with penetration of the platysma." Amended Confidential Jury Trial and Sentencing Exhibits ("Exhibits"), Volume 5 at 51. She sustained a cut from
one side of her neck to the other and received approximately twenty stitches to her neck as a result of her injury.
Officer Isaiah Price of the Gary Police Department was dispatched to the hospital to gather supplemental information. While there, he received information from Young's family members of the possible whereabouts of Young's vehicle. Officer Price recovered Young's vehicle in a parking lot of an apartment building. Located inside the vehicle was Young's purse, her identification card, and a black jacket belonging to Banks. The officers did not locate the cash Young previously had in her purse. No weapon was recovered.
The State charged Banks with attempted murder, aggravated battery, battery by means of a deadly weapon, battery resulting in serious bodily injury, auto theft, and theft. At trial, Young repeatedly identified Banks as her attacker. Brown also testified that Young told him that Banks was the person who tried to kill her. See Tr., Vol. 3 at 8. Young's unredacted medical records were admitted into evidence over Banks' objection. The medical records stated that "[Young] got in an altercation with family and someone slit her neck with a razor blade." Exhibits, Vol. 5 at 34.
The trial court also admitted into evidence, over Banks' objection, Young's testimony that Dr. Rutland, the doctor who stitched her wound, "said that if [Banks] would have cut me four inches more or if I would have moved while [Banks] was cutting me, ... I wouldn't be here[.] I would have died." Tr., Vol. 2 at 171. Dr. Rutland did not testify at trial.
A jury found Banks guilty on all counts. The trial court merged the aggravated battery, battery by means of deadly force, and battery resulting in bodily injury convictions into Banks' attempted murder conviction and entered judgments of conviction only for attempted murder, auto theft, and theft. The
trial court sentenced Banks to thirty years for attempted murder, enhanced by six years for being an habitual offender, and two years each for auto theft and theft, to be served concurrently with each other but consecutively to the sentence for attempted murder. Banks therefore received an aggregate sentence of thirty eight years to be served in the Indiana Department of Correction.Banks v. State, 2019 WL 6904696, 19A-CR-1312, slip op. at 1-2 (Ind.Ct.App. Dec. 19, 2019), trans. denied.
[¶3] Banks' appellate attorney raised three issues on appeal: "1) whether the trial court abused its discretion in allowing a victim to testify to statements made by her doctor and admitting unredacted medical records into evidence, 2) whether the evidence is sufficient to support Banks' attempted murder conviction, and 3) whether Banks' auto theft and theft convictions violate the single larceny rule." Id. at 1. The Court concluded that the trial court abused its discretion in allowing a victim to testify to statements made by her doctor, but also concluded that such error was harmless. Id. The Court further concluded that the trial court did not abuse its discretion in admitting the victim's unredacted medical records into evidence, and that there existed sufficient evidence to support Banks' convictions for attempted murder. Id. Finally, the Court concluded that multiple convictions for auto theft and theft violated the single larceny rule. Id. The matter was remanded with instructions to the trial court to vacate one of those Level 6 convictions. Id. at 5. Banks petitioned for transfer, and his petition was denied. Banks v. State, 143 N.E.3d 959 (Ind. 2020).
[¶4] On December 17, 2020, Banks filed a petition for post-conviction relief, which was subsequently amended. On July 26, 2022, the post-conviction court conducted a hearing at which Banks' trial and appellate counsel and two of Banks' family members testified. On March 22, 2023, the post-conviction court entered its findings of fact, conclusions thereon, and order denying Banks' petition. Banks now appeals.
Discussion and Decision
[¶5] Our standard of review upon appeal from the denial of post-conviction relief when the petitioner has alleged ineffectiveness of counsel is clear:
"The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence." Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014). "When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment." Id. at 274. In order to prevail on an appeal from the denial of post-conviction relief, a petitioner must show that the evidence leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the postconviction court [has] entered findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). Although we do not defer to the post-conviction court's legal conclusions, "[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." Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).
When evaluating an ineffective assistance of counsel claim, we apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). See Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first prong, "the defendant must show deficient performance: 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." McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing Strickland, 466 U.S. at 687-88). To satisfy the second prong, "the defendant must show prejudice: a reasonable probability (i.e.[,] a probability sufficient to undermine confidence in the outcome) that, but for counsel's errors, the result of the proceeding would have been different." Id. (citing Strickland, 466 U.S. at 694).Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017). Failure to satisfy either of the two prongs will cause the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). Indeed, most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.
[¶6] Assistance of Trial Counsel. Banks alleges that his trial counsel was ineffective for (1) failing to call James Hobson as an alibi witness and (2) encouraging him to take an offer for a plea deal at a time after it had been withdrawn. At the post-conviction hearing, Banks elicited testimony from his trial counsel that Banks had provided her with names of two potential alibi witnesses, Jimmie Brown, and James Hobson. Trial counsel had called neither Brown nor Hobson as a witness. Banks also elicited testimony from his mother and sister that trial counsel had encouraged Banks to accept a plea deal.
[¶7] Counsel has wide latitude in selecting trial strategy and tactics, which we afford great deference. Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012). In particular, "trial counsel's decision on what witnesses to call is a matter of trial strategy which we will not second-guess." Fugate v. State, 608 N.E.2d 1370, 1373 (Ind. 1993). Trial counsel testified that she met with each of the potential witnesses identified by Banks. As for Jimmie Brown, trial counsel opined that he offered "no probative evidence" to support an alibi defense for Banks. (PCR. Tr. Vol. I, pg. 21.) Counsel testified that she met twice with the other potential witness, James Hobson, and that he appeared to be intoxicated on both occasions. Counsel deduced that he would "not testify favorably" and possibly "would not be allowed" to testify due to chronic intoxication. (Id. at 11.) Counsel testified that she elected to present the alibi defense through the testimony of Banks without corroborating witnesses.
[¶8] Notably, Banks did not call Hobson as a witness at the post-conviction hearing and thus the post-conviction court was not apprised of the substance of Hobson's testimony, had he testified at trial. It was incumbent upon Banks to do so. See Lowery v. State, 640 N.E.2d 1031, 1047 (Ind. 1994) ("When ineffective assistance of counsel is alleged and premised on the attorney's failure to present witnesses, it is incumbent upon the petitioner to offer evidence as to who the witnesses were and what their testimony would have been.") Although trial counsel's strategy to establish an alibi for Banks was ultimately not successful, Banks has not shown that trial counsel's performance was deficient in this regard.
[¶9] Banks, acting pro-se, also elicited testimony at the post-conviction hearing concerning a plea offer made and later withdrawn by the State. In propounding his questions to the witnesses, Banks indicated that he had been adamant about rejecting plea offers until the eve of trial. Banks' mother and sister testified that they had encountered trial counsel one day before trial, and that counsel had urged them to convince Banks to accept a plea offer. According to Veronica Banks, he was "dead set on just saying [he wasn't] guilty until then." (Tr. Vol. I, pg. 35.) Trial counsel testified that she had been advised by Banks, on the eve of trial, that he would accept the State's offer. Counsel had then initiated a conference call with herself, the trial court, and the State. The prosecuting attorney had then advised the trial court and defense counsel that the offer had been withdrawn.
[¶10] The factual circumstances surrounding the extension and withdrawal of the plea offer have not been disputed. Banks refused to accept any plea offer until the eve of trial, but when trial counsel reached out to convey Banks' last-minute decision of acceptance, there was no longer an offer on the table. It is not apparent what more trial counsel could have done to assist Banks in such circumstances. See Manzano v. State, 12 N.E.3d 321, 326 (Ind.Ct.App. 2014) (recognizing that "the decision to enter a guilty plea is largely the defendant's decision, and is therefore different from the tactical or investigatory steps that are the bases of most claims of ineffective assistance of counsel"), trans. denied. Banks has not shown that he was denied the effective assistance of trial counsel.
[¶11] Assistance of Appellate Counsel. Banks argues that he was denied the effective assistance of appellate counsel because appellate counsel did not raise the issue of ineffectiveness of trial counsel.
[¶12] The standard of review for ineffective assistance of appellate counsel claims is the same as that for trial counsel: the petitioner must show deficient performance and that the deficiency resulted in prejudice to him. Hollowell v. State, 19 N.E.3d 263, 269 (Ind. 2014). Ineffective assistance of appellate counsel claims generally fall into three categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well. Id. at 270. In order to show that appellate counsel was ineffective for failing to raise an issue on appeal, a defendant must overcome the "strongest presumption of adequate assistance, and judicial scrutiny is highly deferential." Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). In evaluating the performance prong of the Strickland standard, we determine whether the unraised issues are significant and obvious from the face of the record and whether the unraised issues are clearly stronger than the raised issues. Id. In evaluating the prejudice prong of the Strickland standard, we determine whether the issues that appellate counsel failed to raise would have been clearly more likely to result in reversal or an order for a new trial. Id.
[¶13] Banks' appellate counsel raised three issues, and Banks prevailed on one of those issues, namely, whether the single larceny rule was violated. The issue of ineffectiveness of trial counsel is not a clearly stronger issue. Indeed, it is without merit. Appellate counsel will not be deemed ineffective for "failing to present meritless claims." Vaughn v. State, 559 N.E.2d 610, 615 (Ind. 1990). Banks has not shown that his appellate counsel performed deficiently.
Conclusion
[¶14] Banks was not denied the effective assistance of trial or appellate counsel. Accordingly, the post-conviction court did not err in denying Banks postconviction relief.
[¶15] Affirmed.
Kenworthy, J., and Felix, J., concur.