Opinion
23A-PC-3137
09-26-2024
Anthony Barnett, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
APPELLANT PRO SE Anthony Barnett Bunker Hill, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Andrew A. Kobe Senior Chief for Criminal Appeals 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Floyd Superior Court The Honorable Carrie K. Stiller, Judge Trial Court Cause No. 22D01-2003-PC-2
APPELLANT PRO SE
Anthony Barnett
Bunker Hill, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Andrew A. Kobe
Senior Chief for Criminal Appeals
Indianapolis, Indiana
Judges Kenworthy and Felix concur.
MEMORANDUM DECISION
Mathias, Judge.
[¶1] Anthony Barnett appeals the post-conviction court's denial of his petition for post-conviction relief. Barnett raises several issues for our review, which we consolidate and restate as one issue, namely, whether he was denied the effective assistance of appellate counsel.
[¶2] We affirm.
Facts and Procedural History
[¶3] This Court stated the relevant facts and procedural history as follows in Barnett v. State, 83 N.E.3d 93, 96-99 (Ind.Ct.App. 2017) ("Barnett III"), trans. denied:
There have been several appeals in this matter. Because the only one at issue on appeal is the one the parties identify as Barnett III, we do not go to the trouble of numbering the other appeals.
Cynthia Bogard ("Bogard") met Jeanette Lewis ("Lewis") in 2002, and soon thereafter, Lewis started bringing people to Bogard's house to smoke crack. Barnett was one of the people who used drugs at Bogard's house, and on several occasions, Barnett brought along women who would have sex with him in exchange for drugs. Bogard felt she was no longer in control of her home and asked Barnett several times to stop coming over, but Barnett laughed at her requests. Around the same time, Barnett and his ex-wife, Tonya,[] were trying to reconcile.
On December 10, 2002, Bogard called Tonya and told her about Barnett's behavior, hoping Tonya could help. That same day, Bogard and others were in her home when they heard pounding on the door. Bogard opened the door a crack, peered out, and saw Barnett as he grabbed the door and pushed it open. Barnett
shoved Bogard down and started screaming that she had ruined his life with Tonya. Barnett said he had brought two others to help beat up Bogard; Barnett also told Bogard he had a gun in the car. Barnett stomped on Bogard with his heel and threatened to kill her if she did not call Tonya and recant. Barnett got the phone, dialed Tonya's number, and had Bogard talk to her. Once off the phone, Bogard fled to a neighbor's house to call the police. Bogard had a knot on her head, her head was bleeding, and her shoulder hurt. She also had bruises on her shoulder, chest, and head-one of the bruises on her chest near her shoulder was a pattern injury caused by the heel of a shoe. Testimony at trial revealed that pattern injuries result from significant force; the injuries were consistent with Bogard's account of the attack.
On December 13, 2002, the State charged Barnett with one count of Class C felony battery. The trial court set the omnibus date for January 7, 2003 and scheduled the jury trial for February 17, 2003.[] Barnett's appointed attorney ("trial counsel") filed his appearance in the case on December 18, 2002. On February 4, 2003, two weeks before the scheduled trial and almost a month after the omnibus date, the State filed the first amended information, adding an habitual offender count ("the habitual amendment"). That same day, the trial court held a pretrial conference, at which Barnett "was apparently represented by [trial counsel]." Appellant's Br. at 12. On February 5,[] "the trial court held an initial hearing of some sort with respect to the" habitual amendment ("the habitual amendment hearing"), and Barnett, who appeared without counsel,[] did not object to the addition of the habitual count, but requested a continuance. Appellant's Br. at 12.
On February 12, 2003, six days before Barnett's scheduled trial and five weeks after the omnibus date, the State filed a second amendment to the information ("the second amended information"), which was based on the same underlying acts, and added one count of Class A felony burglary resulting in bodily
injury and one count of Class D felony intimidation. Appellant's Br. at 13 (citing Appellant's App. at 3, 35-36).[] On February 12 and 13, 2003, the trial court held a hearing, and over Barnett's objection, the trial court allowed the second amended information. Two continuances were granted to Barnett, and the jury trial began two months later. Testimony was heard on April 14 and continued through April 16, 2003, at which time the trial court granted Barnett's request to adjourn in order to depose a key defense witness. The final two days of trial were held on May 12 and May 13, after which the jury found Barnett guilty of burglary, battery, and intimidation and found him to be an habitual offender. The trial court ordered Barnett to serve an aggregate executed sentence of eighty years-fifty years for Class A felony burglary and a concurrent five years for Class C felony battery, with an habitual enhancement of thirty years added to the burglary. No sentence was entered for the Class D felony intimidation conviction. This court affirmed Barnett's convictions and sentences, and our Supreme Court denied transfer. Barnett v. State, No. 22A04-0312-CR-616, 816 N.E.2d 100 (Ind.Ct.App. Sept. 29, 2004), trans. denied.
In September 2005, Barnett filed a petition for post-conviction relief, alleging that his trial counsel rendered ineffective assistance. He also argued that appellate counsel had been ineffective on direct appeal for inadequately challenging the habitual amendment and for not raising any challenge to the timeliness of the second amended information. The postconviction court denied Barnett's petition in September 2008, and this court affirmed that denial. In pertinent part, we found that a challenge to the inclusion of the habitual offender enhancement had been waived for failure to present an objection to the trial court and that appellate counsel reasonably declined to challenge the second amended information because late amendments not prejudicing a defendant's substantial rights were routinely allowed under prevailing jurisprudence, and appellate counsel would have reasonably determined that a challenge to the amendment would not succeed on appeal. [Barnett v. State,
No. 22A01-0810-PC-505,] 2009 WL 4927545, at *8-10 [(Ind.Ct.App. Dec. 22, 2009)]. The Indiana Supreme Court denied transfer.
In 2010, Barnett filed a filed a petition for a writ of habeas corpus in federal court, challenging his 2003 Floyd County convictions for burglary, battery, intimidation, and the adjudication that he was an habitual offender. Initially, the District Court denied relief, finding, in pertinent part, that our court had not unreasonably applied clearly established federal law in adjudicating Barnett's claims of ineffective assistance of counsel. Barnett v. Superintendent, No. 3:10-CV-157-TLS, 2013 WL 3338493, at *3, *7 (N.D. Ind. July 2, 2013).... However, in February 2014, the United States Court of Appeals for the Seventh Circuit ("Seventh Circuit") remanded the matter back to the District Court for reconsideration in light of Shaw v. Wilson, 721 F.3d 908 (7th Cir. 2013).
Following additional briefing, the District Court on remand granted conditional federal habeas relief for Barnett's claim of ineffective assistance of appellate counsel regarding the second amended information. The District Court's judgment, in part, read:
[T]he amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody . . . is CONDITIONALLY GRANTED.... Within 120 days of this Order, the State must either release the Petitioner or grant him leave to file a new direct appeal with the assistance of counsel.
Barnett [], No. 3:10-CV-157-TLS, 2015 WL 3466294, at *7 (N.D. Ind. June 1, 2015) (emphasis added). Referring to the habitual amendment hearing, the District Court commented in a footnote:
It is unclear why appellate counsel did not raise the absence of counsel at that hearing as an issue in the
direct appeal. It is disconcerting that the Petitioner was found to have waived an issue at a hearing where he was without counsel. If the State permits the Petitioner to file another direct appeal, this is an issue that warrants further exploration. See Roe v. Flores-Ortega, 528 U.S. 470, 483 [120 S.Ct. 1029, 145 L.Ed.2d 985] (2000) ("[T]he complete denial of counsel during a critical stage of a judicial proceeding mandates a presumption of prejudice because the adversary process itself has been rendered presumptively unreliable."); United States v. Cronic, 466 U.S. 648 [104 S.Ct. 2039, 80 L.Ed.2d 657] (1984).
Id. at *4 n.1.
After 120 days had run without action by the State, Barnett filed a motion with the District Court on September 30, 2015, asking for his immediate release. The State filed a response, explaining that it had misunderstood the specifics of the conditional writ and asking the District Court to grant more time for the State to comply with the conditional writ. The District Court granted the State an extension until October 29, 2015, to comply with the District Court's conditional writ. The State complied, and this appeal ensued.[]
[¶4] In that appeal, Barnett raised three issues: whether this Court was barred from hearing Barnett's new direct appeal; whether the State's second amendment to Barnett's charging information, which added two new charges-Class A felony burglary and Class D felony intimidation-was impermissibly late under Indiana Code section 35-34-1-5, requiring a dismissal of those charges; and whether Barnett's appearance without counsel at a hearing on the State's first amendment to the charging information, which added a habitual offender enhancement, denied Barnett his Sixth Amendment right to counsel. See id. at 96. On the first issue, we held that Barnett did not seek relief from the federal District Court and his argument on appeal was an impermissible collateral attack. On the second issue, we held that Barnett had not shown any prejudice to his substantial rights. And on the third issue, we again held that Barnett had not shown any prejudice and that any error was harmless.
[¶5] In 2022, Barnett, pro se, filed his second amended petition for post-conviction relief and alleged that he was denied the effective assistance of appellate counsel in Barnett III. Barnett did not call his appellate counsel to testify, and he did not submit his counsel's affidavit. The trial court issued findings and conclusions denying Barnett's petition. This appeal ensued.
Discussion and Decision
[¶6] Barnett appeals the denial of his petition for post-conviction relief. Our Supreme Court has made our standard of review in such appeals clear:
Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence. Ind. Post-Conviction Rule 1(1)(b); Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). The scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal. Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012). "Issues available on direct appeal but not raised are waived, while issues litigated adversely to the defendant are res judicata." Id. The defendant bears the burden of establishing his claims by a preponderance of the evidence. P.-C.R. 1(5). When, as here, the defendant appeals from a negative judgment denying postconviction relief, he "must establish that the evidence, as a
whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision." Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000). When a defendant fails to meet this "rigorous standard of review," we will affirm the postconviction court's denial of relief. DeWitt v. State, 755 N.E.2d 167, 169-70 (Ind. 2001).Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019).
[¶7] Barnett argues that his counsel in his direct appeal in Barnett III rendered ineffective assistance. To prevail on this claim, Barnett must show:
(1) that his counsel's performance fell short of prevailing professional norms, and (2) that counsel's deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984). "A showing of deficient performance under the first of these two prongs requires proof that legal representation lacked 'an objective standard of reasonableness,' effectively depriving the defendant of his Sixth Amendment right to counsel." Gibson [v. State], 133 N.E.3d [673,] 682 [(Ind. 2019)] (quoting Overstreet v. State, 877 N.E.2d 144, 152 (Ind. 2007)). "To demonstrate prejudice, the defendant must show a reasonable probability that, but for counsel's errors, the proceedings below would have resulted in a different outcome." Id. (citing Wilkes[], 984 N.E.2d [at] 1240-41. . .). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694 .Wilson v. State, 157 N.E.3d 1163, 1177 (Ind. 2020) (emphases removed).
[¶8] "Ineffective assistance of appellate counsel claims generally fall into three basic categories: (1) denial of access to an appeal, (2) waiver of issues, and (3) failure to present issues well." Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006) (citation omitted).
In a claim that appellate counsel provided ineffective assistance regarding the selection and presentation of issues, the defendant must overcome the strongest presumption of adequate assistance, and judicial scrutiny is highly deferential. Conner v. State, 711 N.E.2d 1238, 1252 (Ind. 1999); Bieghler[ v. State], 690 N.E.2d [188,] 195-96[ (Ind. 1997)]. In determining whether appellate counsel's performance was deficient, the reviewing court considers the information available in the trial record or otherwise known to appellate counsel. Because the role and function of appellate counsel on direct appeal is different from that of post-conviction counsel, however, the performance of appellate counsel should not be measured by information unknown to appellate counsel but later developed after the appeal by post-conviction counsel. A defendant may establish that his appellate counsel's performance was deficient where counsel failed to present a significant and obvious issue for reasons that cannot be explained by any strategic decision.[] See Mason v. State, 689 N.E.2d 1233 (Ind. 1997) (describing the rationale employed in Mason v. Hanks, 97 F.3d 887 (7th Cir. 1996)). Appellate counsel's decision regarding "what issues to raise and what arguments to make is 'one of the most important strategic decisions to be made by appellate counsel.'" Conner, 711 N.E.2d at 1252 (quoting Bieghler, 690 N.E.2d at 193 (quoting Lissa Griffin, The Right to Effective Assistance of Appellate Counsel, 97 W.VA.L.REV. 1, 26 (1994)). Appellate counsel must consider various factors, including the likelihood of appellate success and the principles of res judicata and procedural default, which may foreclose future review in subsequent post-conviction proceedings. When assessing challenges to an appellate counsel's strategic decision to include or exclude issues, reviewing courts should be particularly deferential "unless such a decision was unquestionably unreasonable." Bieghler, 690 N.E.2d at 194. Appellate counsel's performance, as to the selection and
presentation of issues, will thus be presumed adequate unless found unquestionably unreasonable considering the information available in the trial record or otherwise known to appellate counsel. To prevail on a claim of ineffective assistance of appellate counsel, a defendant must therefore show from the information available in the trial record or otherwise known to appellate counsel that appellate counsel failed to present a significant and obvious issue and that this failure cannot be explained by any reasonable strategy.Ben-Yisrayl, 738 N.E.2d at 260-61.
[¶9] Barnett alleges that his appellate counsel was ineffective in three ways, and we address each in turn.
Barnett also argues, and the State agrees, that, to the extent the post-conviction court concluded that Barnett's ex post facto argument was barred by res judicata, that was incorrect, as the issue was available to Barnett under his claim for ineffective assistance of appellate counsel. Because we affirm the trial court's denial of Barnett's post-conviction petition on other grounds, however, we need not address res judicata here.
Ex Post Facto Argument
[¶10] In Barnett III, Barnett's appellate counsel argued that, "under the version of Indiana Code section 35-34-1-5 that was in effect at the time [Barnett] committed the instant crimes, the trial court erroneously allowed the State to amend the initial Class C felony battery information by belatedly adding the additional two counts through the second amended information." 83 N.E.3d at 100. His appellate counsel argued that, under Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007), the amendment was untimely. But Barnett contends that his appellate counsel's performance was deficient because he made no argument that applying a 2007 statute to his 2003 convictions violated ex post facto protections.
[¶11] We need not address whether that omission constituted deficient performance because Barnett cannot show prejudice. In Barnett III, despite his counsel's failure to raise the issue, we explicitly stated that "the application of the revised Indiana Code section 35-34-1-5 does not violate the ex post facto provisions of either the Indiana or United States Constitutions." 83 N.E.3d at 101 (citing Brown v. State, 912 N.E.2d 881, 887-89 (Ind.Ct.App. 2009), trans. denied; Hurst v. State, 890 N.E.2d 88, 93-95 (Ind.Ct.App. 2008), trans. denied; Ramon v. State, 888 N.E.2d 244, 251-52 (Ind.Ct.App. 2008)). Barnett makes no argument that that conclusion is incorrect or that the outcome of his appeal would have been different had his appellate counsel argued ex post facto. The post-conviction court did not err when it denied Barnett's ineffective assistance of appellate counsel claim on this issue.
Haak v. State
[¶12] Barnett next contends that his appellate counsel was ineffective because he did not cite Haak v. State, 695 N.E.2d 944 (Ind. 1998), which, he alleges, was controlling precedent on the issue of timeliness of the State's filing of the amended charges at the time of his arrest and conviction. Barnett argues that Haak was not a better case to cite than Fajardo but, regardless, a citation to Haak "would have supported" the Fajardo argument. Appellant's Br. at 28.
[¶13] But once again, Barnett has failed to show any prejudice as a result of this alleged deficient performance. Barnett does not explain how the addition of a citation to Haak would have changed the outcome of his appeal. In any event, as the State points out, the State cited to Haak in its brief in Barnett III, meaning this Court was aware of the case. The post-conviction court did not err when it concluded that Barnett was not denied the effective assistance of appellate counsel on this issue.
Erroneous Facts
[¶14] Finally, Barnett contends that his appellate counsel's performance was deficient because he "failed to bring [alleged factual errors] to [this Court's] attention[.]" Appellant's Br. at 30. In particular, he maintains that this Court got the following facts wrong in Barnett III: we stated that the State had conducted "further investigation" prior to filing the amended charges when no such investigation was done; we stated that the State had initially charged Barnett with battery causing "extreme pain"; and we stated that Barnett, not his counsel, requested a continuance on February 5, 2003, which he did not do. 83 N.E.3d at 100, 102.
Barnett also purports to raise an issue regarding his appellate counsel's failure to order a transcript from the February 5, 2003, hearing. But Barnett's argument on that issue is indistinguishable from his argument that this Court erroneously stated that he had requested a continuance at that hearing. In any event, he has not shown that the outcome of his appeal would have been different if his counsel had ordered the transcript.
[¶15] As the State points out, Barnett makes no argument to explain how, had his appellate counsel pointed out these errors in a petition for rehearing, the corrected facts would have resulted in a different outcome in Barnett III. Because Barnett has not shown any prejudice as a result of this alleged deficient performance, the post-conviction court did not err when it denied his claim of ineffective assistance of appellate counsel on this issue.
Conclusion
[¶16] For all these reasons, the post-conviction court did not err when it denied Barnett's petition for post-conviction relief alleging ineffective assistance of appellate counsel.
[¶17] Affirmed.
Kenworthy, J., and Felix, J., concur.