Opinion
23A-PC-2025
08-30-2024
David Delagrange, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Robert L. Lewis Robert L. Lewis & Associates Gary, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana George P. Sherman Supervising 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Marion Superior Court The Honorable Stanley E. Kroh, Magistrate Trial Court Cause No. 49D29-1509-PC-31176
ATTORNEY FOR APPELLANT
Robert L. Lewis
Robert L. Lewis & Associates
Gary, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
George P. Sherman
Supervising Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Foley, Judge.
[¶1] David Delagrange ("Delagrange") appeals the denial of his petition for postconviction relief. Delagrange presents the following restated issues:
I. Whether Delagrange waived his claim of ineffective assistance of trial counsel; II. Whether Delagrange waived his challenge to omitted mistake of fact jury instructions;
III. Whether trial counsel was ineffective because counsel did not renew a motion for a directed verdict;
IV. Whether trial and appellate counsel were ineffective because they failed to challenge Indiana Code section 3542-4-4 ("the Child Exploitation Statute") as unconstitutionally vague; and
V. Whether post-conviction counsel was ineffective.
[¶2] We affirm.
Facts and Procedural History
[¶3] On direct appeal, the Indiana Supreme Court provided the following recitation of the facts and procedural history:
On February 27, 2010, Delagrange left his home in Fort Wayne and drove approximately one hundred miles to the Castleton Square Mall in Indianapolis. He then wandered around for nearly eight hours trying to take "upskirt" photographs of women and girls as they were shopping. After he selected a particular
victim, he would approach her from behind and try to inveigle his foot between her legs. Once in position, he would reach into his pocket and pull on a piece of fishing line attached to the cuff of his pants leg, thereby exposing a video camera attached to his shoe. By means of this procedure, Delagrange collected approximately seven minutes of actual images.
Unsurprisingly, Delagrange's unusual behavior attracted attention, and a store employee contacted police. After a brief confrontation, an officer arrested Delagrange and discovered his camera system. Detectives later identified four girls from the recorded images: K.V., T.G., and C.B., all aged seventeen, and A.K., aged 15. Those images depicted "the area under the skirt and between the legs" of the victims, but did not depict any "uncovered genitals." Ex. at 5.
The State charged Delagrange with four counts of Class C felony attempted child exploitation, ten counts of Class D felony voyeurism, and one count of Class A misdemeanor resisting law enforcement. By agreement of the parties, the trial court dismissed the voyeurism charges, but it denied Delagrange's motion to dismiss the attempted child exploitation charges. Delagrange successfully sought interlocutory appeal of that ruling, but the Court of Appeals affirmed the trial court and remanded the case. Delagrange v. State, 951 N.E.2d 593, 596 (Ind.Ct.App. 2011), trans. denied . . . [.]
After trial, the jury convicted Delagrange of the remaining five counts. He appealed, arguing the evidence was insufficient to support his convictions for attempted child exploitation. A divided panel of the Court of Appeals reasoned the child exploitation statute
demands the child be performing the sexual conduct, which herein required the child be exhibiting her
uncovered genitals with the intent to satisfy someone's sexual desires. Therefore, in order for Delagrange's attempt to commit child exploitation, each child must have been exhibiting her uncovered genitals with the intent to satisfy sexual desires.
Delagrange v. State, 981 N.E.2d 1227, 1232 (Ind.Ct.App. 2013). As the State had presented no evidence of that, the panel reversed Delagrange's four convictions for attempted child exploitation. Id. Judge Najam dissented, in part because he believed the majority's interpretation "undermines the goal of the statute, which is to criminalize the exploitation of child victims." Id. at 1235 (Najam, J., dissenting).Delagrange v. State, 5 N.E. 354, 355-56 (Ind. 2014) (footnotes omitted). The Indiana Supreme Court ultimately identified sufficient evidence supporting Delagrange's convictions for attempted child exploitation. See id. at 357-58. Indeed, the Court concluded that, based on the evidence presented, "the jury could reasonably infer that Delagrange intended to capture not just images of undergarments but also-or instead-images of uncovered genitals." Id.
[¶4] In 2015, Delagrange petitioned for post-conviction relief with the assistance of post-conviction counsel. In 2020, Delagrange filed an amended petition with an accompanying memorandum. See Appellant's App. Vol. 3 pp. 96-106, 10738. In the amended petition, Delagrange alleged that he was entitled to postconviction relief based on (1) fundamental error at trial; (2) ineffective assistance of trial counsel; and (3) ineffective assistance of appellate counsel. Delagrange later waived a hearing and requested that the post-conviction court issue a ruling based on the record. See id. pp. 92, 140. Thereafter, the post-conviction court took judicial notice "of its file" and ultimately issued an order denying the petition for post-conviction relief, along with accompanying findings and conclusions. Id. at 140. Delagrange now appeals.
Discussion and Decision
[¶5] Delagrange claims he was entitled to post-conviction relief due to fundamental error at trial and the ineffective assistance of both trial and appellate counsel. Delagrange also seeks relief based on alleged errors by post-conviction counsel.
[¶6] "A post-conviction proceeding is a civil proceeding in which a defendant may present limited collateral challenges to a conviction and sentence." Wilson v. State, 157 N.E.3d 1163, 1169 (Ind. 2020). This proceeding "is not a substitute for a direct appeal[.]" Ind. Post-Conviction Rule 1(1)(b). Rather, "[p]otential relief is limited in scope to issues unknown at trial or unavailable on direct appeal." Wilson, 157 N.E.3d at 1169. Indeed, if an issue was available on direct appeal but not raised, that issue is waived. See id. And if the issue was raised, but resolved adversely to the defendant, the issue is res judicata. See id.
[¶7] The petitioner "has the burden of establishing his grounds for relief by a preponderance of the evidence." P-C.R. 1(5). In ruling on a petition, the postconviction court must enter special findings and conclusions, "whether or not a hearing is held." P-C.R. 1(6). The ruling is an appealable final judgment. Id. Moreover, where-as here-the petitioner appeals the denial of relief, the petitioner will prevail only if he can "establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post- conviction court's decision." Wilson, 157 N.E.3d at 1170 (quoting Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019), cert. denied).
I. Waiver of Claim of Ineffective Assistance of Trial Counsel Based on Omitted Jury Instruction
[¶8] Delagrange asserts that he was entitled to post-conviction relief because "trial counsel provided ineffective assistance of counsel by failing to offer a mistake of fact jury instruction." Appellant's Br. p. 11. However, as the State points out, Delagrange did not include this issue in his amended petition for postconviction relief. See Appellant's App. Vol. 3 pp. 96-106. Nor did he include this issue in his memorandum supporting the amended petition. See id. at 10738. As the Indiana Supreme Court has explained, "[i]issues not raised in the petition for post-conviction relief may not be raised for the first time on postconviction appeal." Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001). We therefore conclude that Delagrange waived his post-conviction claim of ineffective assistance of trial counsel based on the omitted jury instruction.
II. Waiver of Claim of Fundamental Error Based on Omitted Jury Instruction
[¶9] Next, Delagrange claims he was entitled to post-conviction relief based on alleged fundamental error that occurred during his jury trial. According to Delagrange, "[t]he trial court committed . . . fundamental error in not, sua sponte, instructing the jury" regarding a mistake of fact defense. Appellant's Br., p. 13. However, in post-conviction proceedings, claims of trial error-even fundamental error-"are generally cognizable only when they show deprivation of the right to effective counsel or [are] issues demonstrably unavailable at the time of trial or direct appeal." Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002). Because Delagrange makes neither of these claims, fundamental error does not apply and therefore, Delagrange waived his claim of error based on the trial court's failure to instruct the jury on the defense of mistake of fact.
III. Trial Counsel Not Ineffective in Failing to Renew Motion for a Directed Verdict
[¶10] The Sixth Amendment to the United States Constitution provides criminal defendants the right to the effective assistance of counsel. See generally Strickland v. Washington, 466 U.S. 668, 684-86 (1984). To obtain relief for the ineffective assistance of counsel-i.e., a violation of the Sixth Amendment-a defendant must demonstrate that (1) "counsel performed deficiently based upon prevailing professional norms" and (2) "the deficiency resulted in prejudice to the defendant[.]" Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). "There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Weisheit v. State, 109 N.E.3d 978, 983 (Ind. 2018). Further, "[c]ounsel is afforded considerable discretion in choosing strategy and tactics and these decisions are entitled to deferential review." Id. As to any resulting prejudice, to prevail on a claim of ineffective assistance of counsel, the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (quoting Strickland, 466 U.S. at 694). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
[¶11] Delagrange argues that he received ineffective assistance of trial counsel due to trial counsel's failure to renew a motion for a directed verdict. A motion for a directed verdict, also known as a motion for judgment on the evidence, is a challenge to the sufficiency of the evidence. See Ind. Trial Rule 50. A trial court may grant this motion "only 'where there is a total absence of evidence upon some essential issue, or where there is no conflict in the evidence and it is susceptible of but one inference, and that inference is in favor of the accused.'" State v. Taylor, 863 N.E.2d 917, 919 (Ind.Ct.App. 2007) (quoting State v. Patsel, 163 N.E.2d 602, 604 (1960) (noting that "[w]here a determination of the issue involves the weight of the evidence or the credibility of witnesses, it is an invasion of the province of the jury for the court to direct a verdict")). If the defendant moves for a directed verdict at the close of the State's case-in-chief, it is advantageous for the defendant to renew the motion at the conclusion of all evidence. See Farmers Elevator Co. of Oakville, Inc. v. Hamilton, 926 N.E.2d 68, 76 (Ind.Ct.App. 2010), trans denied. That is because, if renewed, the motion "is reviewed in light of only the evidence introduced during the . . . case-in-chief." Id. However, if the motion is not renewed, "[a]ppellate review of the motion essentially becomes review for sufficiency of the evidence" based on all the evidence presented, rather than only the evidence presented during the case-in-chief. Id. This distinction is important because "any evidence offered by the defendant may cure an otherwise erroneous denial of his motion[.]" Id.
[¶12] At Delagrange's jury trial, defense counsel moved for a directed verdict at the close of the State's case-in-chief. See Trial Tr. Vol. 1 pp. 196-97. The trial court denied the motion. See id. at 198. At that point, Delagrange presented evidence in his defense, the State presented evidence in rebuttal, and the case went to the jury. At no point did trial counsel renew the motion for a directed verdict.
[¶13] The State argues that Delagrange is not entitled to post-conviction relief based on the Indiana Supreme Court's decisions in Siglar v. State, 541 N.E.2d 944 (Ind. 1989), and Gajdos v. State, 462 N.E.2d 1017 (Ind. 1984). In Siglar, our Supreme Court reviewed a post-conviction claim that trial counsel was ineffective for "failing to renew [a] motion for a directed finding at the end of trial." Siglar, 541 N.E.2d at 948. The Siglar Court ultimately determined that the petitioner failed to demonstrate sufficient prejudice. See id. For support, the Court cited Gajdos v. State, wherein the petitioner had presented an ineffective assistance claim focused on trial counsel's failure to move for a directed verdict. In Gajdos, the petitioner alleged he was prejudiced in that, "because the motion [for a directed verdict] was not made[,] he was not able to raise the issue on appeal." 462 N.E.2d 1017, 1024 (Ind. 1984). However, the Gajdos Court plainly determined "[t]his [was] not sufficient prejudice to base a finding of ineffective assistance of counsel." Id. The Court added that the claim also failed because the petitioner had not established that trial counsel's performance was deficient. Id. (declining to second-guess strategic decisions and noting that "there may have been a valid reason" for not again moving for a directed verdict in that the judge "had denied a motion made at the end of the [S]tate's case").
[¶14] On appeal, Delagrange cursorily asserts that the failure to renew the motion for a directed verdict "was ineffective assistance of trial counsel from which Delagrange suffered prejudice[.]" Appellant's Br. p. 15. For support, Delagrange refers only to a portion of the Indiana Supreme Court decision in his case, where the Court noted that Delagrange "waived his right to appeal" the denial of his motion for a directed verdict "because he . . . present[ed] evidence after the trial court denied his motion." Delagrange, 5 N.E.3d at 356 n.1. Delagrange argues that, if counsel "had properly preserved the directed verdict issue, then the issue would have been available for consideration by the trial court." Appellant's Br. p. 15. But it is not as though Delagrange was precluded from testing the sufficiency of the evidence presented to the jury. Indeed, the Indiana Supreme Court proceeded to address the sufficiency of the evidence supporting the convictions for attempted child exploitation. See Delagrange, 5N.E.3d at 356-58. And Delagrange has failed to explain why he was prejudiced by this form of review, rather than review focused only on the State's case-in-chief.
[¶15] Because Delagrange has not identified sufficient prejudice stemming from trial counsel's failure to renew a motion for a directed verdict, we conclude that the post-conviction court did not err in denying Delagrange relief upon this claim.
IV. Trial Counsel and Appellate Counsel Not Ineffective in Failing to Argue the Child Exploitation Statute Was Unconstitutionally Vague
[¶16] Delagrange contends that he received ineffective assistance of both trial counsel and appellate counsel due to their failure to present arguments regarding Indiana Code section 35-42-4-4 ("the Child Exploitation Statute"), which Delagrange claims was unconstitutionally vague. We note that the standard for reviewing the performance of appellate counsel involves "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." Timberlake v. State, 753 N.E.2d 591, 606 (Ind. 2001) (quoting Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997)). Furthermore, a "reviewing court should be particularly sensitive to the need for separating the wheat from the chaff in appellate advocacy," and "should not find deficient performance when counsel's choice of some issues over others was reasonable in light of the facts of the case and the precedent available to counsel when that choice was made." Bieghler, 690 N.E.2d at 194.
[¶17] Delagrange's claims of ineffective assistance of trial counsel and appellate counsel turn on his contention that the Child Exploitation Statute was unconstitutionally vague. The State argues that Delagrange has waived his claims by "fail[ing] to cite to any caselaw or the text of any constitutional provision in support[.]" Appellee's Br. p. 18. We agree that the Appellant's Brief is deficient. That is, not only does the briefing lack citation to authority and fail to articulate pertinent legal standards, Delagrange's constitutional argument is limited to a paragraph in which he does not quote from the allegedly unconstitutional statute. See Appellant's Br. p. 15. Moreover, we note that Delagrange declined to respond to the State's allegation of waiver in a Reply Brief, wherein he might have developed his argument regarding the Child Exploitation Statute. Under the circumstances, we conclude Delagrange waived this appellate issue by failing to support his contentions as required in Appellate Rule 46(A)(8)(a). See, e.g., Isom v. State, 170 N.E.3d 623, 637 (Ind. 2021) (identifying waiver of a post-conviction claim based on deficient briefing under this appellate rule). Waiver notwithstanding, we proceed to address Delagrange's appellate contentions, as best we discern them. Cf. id. (determining that, even if the defendant "had . . . properly presented th[e] argument, it would fail"); Kirby v. State, 95 N.E.3d 518, 520 n.1 (Ind. 2018) (looking past "potential waivers" and ultimately electing to address the merits).
[¶18] A statute is unconstitutionally vague if it fails to "give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden" by the statute. Brown v. State, 868 N.E.2d 464, 467 (Ind. 2007). To the extent we engage in constitutional analysis, we note that appellate courts review constitutional claims de novo, and review begins with a "presumption of constitutional validity[.]" Conley v. State, 972 N.E.2d 864, 877 (Ind. 2012) (quoting State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind. 1997)). Thus, a litigant "labors under a heavy burden to show that [a] statute is unconstitutional." Id.
[¶19] Here, Delagrange was convicted of Class C felony attempted child exploitation under the version of the Child Exploitation Statute effective in February 2010. Pursuant to subsection (b)(1) of this statute, "[a] person who knowingly or intentionally . . . manages, produces, sponsors, presents, exhibits, photographs, films, videotapes, or creates a digitized image of any performance or incident that includes sexual conduct by a child under eighteen (18) years of age . . . commits child exploitation, a Class C felony." I.C. § 35-42-4-4(b)(1) (2007).
[¶20] Delagrange claims that the Child Exploitation Statute "did not give [him] 'fair notice' that his conduct of filming up the skirts of women and teenagers at the public mall while they shopped . . . and worked would violate this statute." Appellant's Br. p. 15. In so arguing, Delagrange does not refer to subsection (a) of the statute, which provided the following definition for "sexual conduct":
"Sexual conduct" means sexual intercourse, deviate sexual conduct, exhibition of the uncovered genitals intended to satisfy or arouse the sexual desires of any person, sadomasochistic abuse, sexual intercourse or deviate sexual conduct with an animal, or any fondling or touching of a child by another person or of another person by a child intended to arouse or satisfy the sexual desires of either the child or the other person.I.C. § 35-42-4-4(a) (emphasis added). Delagrange also does not refer to the attempt statute, which provided that "[a] person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime." I.C. § 35-41-5-1(a) (1977). In the criminal context, a "substantial step" is "any overt act beyond mere preparation and in furtherance of the attempt to commit an offense." Childers v. State, 813 N.E.2d 432, 435 (Ind. 2004).
[¶21] The essence of Delagrange's argument appears to be that the definition of "sexual conduct" could have been read to necessitate that a photographed child-i.e., the victim-had intended to arouse a person's sexual desires. Thus, according to Delagrange, the statute "did not give him 'fair notice'" that his conduct was proscribed. Appellant's Br. p. 15. But this argument overlooks that the Child Exploitation Statute was designed to protect children. And, when Delagrange went to trial and later pursued his direct appeal, it was clear from Indiana caselaw that if the Indiana Supreme Court had been presented with alternative readings of the Child Exploitation Statute, the Court would have avoided any presumption "that the Legislature intended language used in a statute to be applied illogically or to bring about an unjust or absurd result." City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind. 2007).
[¶22] All in all, in light of the obvious purpose of the Child Exploitation Statute and the precise definition of "sexual exploitation," along with the presumption of constitutional validity and the complexion of Indiana Supreme Court caselaw, we conclude that it was objectively reasonable for trial counsel to decline to argue the Child Exploitation Statute was unconstitutionally vague based on an alternative reading of the statute that focused on the victim's sexual intent. For the same reasons, it was objectively reasonable for appellate counsel to decline to bring a claim for appellate relief premised on the Child Exploitation Statute being unconstitutionally vague. Thus, irrespective of waiver, because Delagrange did not establish that the performance of trial counsel or appellate counsel was deficient under the circumstances, we conclude that the postconviction court did not err in declining to grant relief upon these claims.
IV. Post-Conviction Counsel Not Ineffective
[¶23] Delagrange argues that he received ineffective assistance of post-conviction counsel. Because there is no Sixth Amendment right to the effective assistance of post-conviction counsel, we generally "apply a lesser standard responsive more to the due course of law or due process of law principles [that] are at the heart of the civil post-conviction remedy." Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989). So long as "counsel in fact appeared and represented the petitioner in a procedurally fair setting [that] resulted in a judgment of the court, it is not necessary to judge [counsel's] performance by the rigorous standard" associated with ineffective assistance claims under the Sixth Amendment. Id.
[¶24] At times, Delagrange claims that he was "abandon[ed]" by post-conviction counsel. Appellant's Br. p. 16. Delagrange asserts that post-conviction counsel "filed a memorandum in support of the petition and nothing else[.]" Id. at 17 He also contends that counsel "offer[ed] no affidavits or any portion of the trial court record or appellate record in support of the petition." Id. Moreover, Delagrange points out that his counsel did not timely file a Notice of Appeal.
[¶25] But we cannot say the asserted conduct resulted in a procedurally unfair setting. Indeed, post-conviction counsel appeared on Delagrange's behalf and submitted both a post-conviction brief and a supporting memorandum. Counsel did not tender copies of the documents associated with Delagrange's trial and direct appeal. However, the post-conviction court took judicial notice of those documents, and its written judgment includes citation to the underlying record, which suggests that the procedure at issue did not inhibit review of the petition. See Appellant's App. Vol. 3 p. 142 (quoting from the trial record). And although Delagrange suggests that counsel should have introduced affidavits or other evidence, Delagrange has not identified favorable evidence that was omitted, or explained how the setting was rendered procedurally unfair based on the taking of judicial notice. Further, to the extent Delagrange focuses on the timing of appellate filings, this court ultimately permitted a belated appeal.
[¶26] Based on the foregoing, we conclude that Delagrange did not meet the standard of establishing ineffective assistance of post-conviction counsel in this case.
Conclusion
[¶27] Delagrange waived his claim of ineffective assistance of trial counsel by not including that claim in his amended petition, and he also waived his claim of fundamental error because that claim could have been raised on direct appeal. As to Delagrange's remaining claims regarding the alleged ineffective assistance of counsel, to the extent those claims are properly preserved, we conclude that Delagrange failed to establish that he was entitled to post-conviction relief.
[¶28] Affirmed.
Vaidik, J., and Weissmann, J., concur.