Opinion
Court of Appeals Case No. 18A-PC-2226
05-21-2019
Johnny Rice, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent.
APPELLANT PRO SE Johnny Rice Carlisle, Indiana ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana J. T. Whitehead Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE
Johnny Rice
Carlisle, Indiana
ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana
J. T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
Appeal from the Marion Superior Court
The Honorable Jeffrey L. Marchal, Magistrate
Trial Court Cause No. 49G06-1705-PC-20279
Riley, Judge.
STATEMENT OF THE CASE
[1] Appellant-Petitioner, Johnny Rice (Rice), appeals the post-conviction court's denial of his petition for post-conviction relief (PCR).
[2] We affirm.
ISSUES
[3] Rice presents two issues on appeal, which we restate as:
(1) Whether the post-conviction court's conclusion that he was not denied the effective assistance of trial counsel was clearly erroneous; and
(2) Whether the post-conviction court's conclusion that Rice was not denied the effective assistance of appellate counsel was clearly erroneous.
FACTS AND PROCEDURAL HISTORY
[4] The facts pertaining to Rice's convictions as determined by the court on direct appeal are as follows:
The facts most favorable to the verdict reveal that Rice and M.S. were romantically involved and shared an apartment. On the evening of September 10, 2014, Rice picked up M.S. from work, and they returned to their apartment. At some point before dinner, the couple left the apartment, drove to a liquor store, and then drove to Rice's mother's home. M.S. stayed in the car while Rice conducted his business. Once they returned home, a dispute arose while M.S. was cooking dinner. Rice berated M.S. and smacked M.S. on the side of her face with his open hand.
Later that evening, Rice instructed M.S. to remove her clothes and perform oral sex on him. M.S. complied, but Rice was dissatisfied with her performance. He said, "[i]t don't feel good" and "[y]ou're not doing it right" over and over, hitting her head each time. Rice told M.S. that he would continue to hit her "until it starts feeling better." Eventually, M.S.'s face swelled, and she began to bleed. Rice ordered M.S. to clean herself up, but when she did not return quickly enough, he dragged her out of the bathroom by her hair and pushed her against the wall of the bedroom. M.S. slid down the wall to the floor, and Rice grabbed her neck with one hand to pick her up. This caused M.S. to have trouble breathing and black out momentarily.
Rice, who was drinking an alcoholic beverage, forced M.S. to continue performing oral sex and told M.S. that if he finished his drink prior to ejaculating, he would "beat [her] ass." When Rice finished his drink, he pushed M.S. to the floor and began stomping on her face with his foot. He was wearing shoes at the time. Rice then told M.S. to get in the shower and wash off the blood. When M.S. finished showering, Rice reclined on the bed and instructed her to perform oral sex yet again. M.S. complied until he fell asleep, at which time she grabbed her clothes and keys and ran from the apartment. She drove to the next apartment building and eventually fell asleep. M.S. woke the next morning when she heard a woman in the parking lot. At M.S.'s request, the woman called 9 1 1.
Indianapolis Metropolitan Police Department ("IMPD") Officer Mark Ayler responded to the call. Officer Ayler observed that M.S. appeared badly beaten. An ambulance took M.S. to the hospital, where she was diagnosed with comminuted fractures of three bones around her eyes and nose. The emergency room physician who treated M.S. described the injuries to her face as being like "dropping a plate on the floor and having it crack into many pieces." The injuries to the bones around her eyes required surgery. In addition, she had bruising around her neck,
shoulders, and knees. Her soft palate, tongue, and inner cheek were raw. Her face was extremely swollen, such that she was unable to see. She also had lacerations on her lips, forehead, and over one eye.
With M.S.'s permission, Officer Ayler gained access to the apartment and found Rice alone in the living room. Rice was belligerent and uncooperative. Officer Ayler immediately noticed a pair of shoes with blood around the edges in the hallway leading to the bedroom. When he entered the bedroom, he saw "a large amount of blood on the walls, the bed, the carpet, the TV stand, on the TV." There was also blood on the bedroom ceiling, in the bathroom, and in the kitchen. Serological samples were not taken from every item and surface in the apartment, but investigators took representative samples from every room. Forensic analysis confirmed the samples were M.S.'s blood.
Rice was taken into custody and gave a statement to IMPD Detective Michelle Floyd. Rice claimed a woman named "Tiff" came to the apartment and that she and M.S. had gotten into a fight. He also told Detective Floyd that he was looking forward to M.S. returning home so M.S. could clean up the mess she had made. Rice gave Detective Floyd a phone number he claimed belonged to "Tiff," but Detective Floyd was unable to locate "Tiff." Detective Floyd observed no injuries on Rice's hands.
Rice v. State, No. 49A02-1506-CR-614, slip op. (Ind. Ct. App. March 15, 2016) (record citations omitted), trans. denied.
[5] On September 16, 2014, the State filed an Information, charging Rice with Level 1 felony rape, Level 3 felony rape, Level 5 felony battery, Level 6 felony strangulation, and Class A misdemeanor battery. In the probable cause affidavit filed with the Information, Detective Floyd averred the following facts
under penalties of perjury. Detective Floyd first spoke with M.S. when M.S. was being treated for her injuries at the hospital. In this initial interview, M.S. stated that around 12:30 a.m. on September 11, 2014, Rice asked her for oral sex and that she had agreed to provide it. Rice became unsatisfied with her performance and began hitting her in the face. Rice informed M.S. that he was going to keep on hitting her. M.S. told Detective Floyd that "it hurt but she kept doing what he wanted." (Appellant's PCR App. Vol. II, p. 110). M.S. also reported that, after Rice committed additional acts of battery and strangulation on her, he again commanded her to perform oral sex. M.S. reported to Detective Floyd that "she did what he told her because she was afraid he would hit her more if she did not." (Appellant's PCR App. Vol. II, p. 110).
[6] The probable cause affidavit went on to relate that Detective Floyd spoke with M.S. again after M.S. had been released from the hospital. In this second interview, M.S. stated that initially "she willingly did oral sex on [Rice] but he was not happy with what she was doing." (Appellant's PCR App. Vol. II, p. 110). Later in this second interview, M.S. stated that "she did what [Rice] said because if she didn't it would get worse and she might lose her life." (Appellant's PCR App. Vol. II, p. 111). When Rice commanded her to perform oral sex on him again, "she got on her knees in front of him at the chair and did what he wanted or he would hurt her more." (Appellant's PCR App. Vol. II, p. 111). M.S. related that Rice committed several acts of battery on her, said that if he had a gun he would kill her, and grabbed her by the neck, causing her to
black out. Rice then sat in a chair and commanded M.S. to perform oral sex on him, which M.S. said that she did "because she was afraid he would hit her more if she did not do what he wanted." (Appellant's PCR App. Vol. II, p. 112). M.S. reported that Rice continued to hit her in the face as she attempted to comply with his commands for oral sex and that the assault ended when Rice finally fell asleep.
[7] After a two-day jury trial, on May 19, 2015, a jury found Rice guilty as charged. On June 4, 2015, the trial court entered judgment of conviction on all of the offenses but the Level 5 felony battery. The trial court sentenced Rice to thirty-six years, with four years suspended to probation. Rice pursued a direct appeal of his convictions in which he presented one issue—whether there was sufficient evidence to sustain his convictions. Rice contended on direct appeal that the evidence showed that M.S. and he had engaged in consensual oral sex and that the State had failed to disprove his theory that someone else caused M.S.'s injuries. On March 15, 2016, this court issued its memorandum decision affirming Rice's convictions. Id.
[8] On May 31, 2017, Rice filed his PCR, which he amended once. In the PCR proceedings, Rice argued that his trial counsel was ineffective for failing to challenge the probable cause affidavit supporting the charging Information and that his appellate counsel was ineffective for failing to raise the same issue in his direct appeal. On May 3, 2017, the post-conviction court held a hearing on Rice's PCR at which the two attorneys who represented him at his jury trial (Trial Counsel) and Appellate Counsel testified. At the hearing, Rice was
under the misapprehension that he could not be charged with rape for forcing oral sex on M.S. He repeatedly asked Trial Counsel why they did not challenge the State's case, including the charging Information, regarding the lack of evidence of forced sexual intercourse. Trial Counsel explained to Rice many times during the PCR hearing that the State had charged him with rape for forced oral sex, not forced intercourse. In his proposed findings of fact and conclusions of law, Rice argued for the first time that his trial counsel was ineffective for failing to challenge the probable cause affidavit through a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).
[9] On August 3, 2018, the post-conviction court issued its Order denying Rice relief. The post-conviction court found that Rice had failed to demonstrate that any failure on Trial Counsel's part to challenge the probable cause affidavit or the Information, via a Franks hearing or otherwise, was outside the realm of reasonable trial strategy because any such challenge had little chance of success. The post-conviction court found that Rice's ineffective assistance of appellate counsel claims were equally unfounded, being based on his appellate counsel's failure to raise the same meritless arguments on direct appeal.
[10] Rice now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[11] PCR proceedings are civil proceedings in which a petitioner may present limited collateral challenges to a criminal conviction and sentence. Weisheit v.
State, 109 N.E.3d 978, 983 (Ind. 2018). In a PCR proceeding, the petitioner bears the burden of establishing his claims by a preponderance of the evidence. Id. When a petitioner appeals from the denial of his PCR, he stands in the position of one appealing from a negative judgment. Hollowell v. State, 19 N.E.3d 263, 269 (Ind. 2014). To prevail on appeal from the denial of a PCR, the petitioner must show that the evidence "as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the [PCR] court." Id. In addition, where a PCR court makes findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we do not defer to its legal conclusions, but we will reverse its findings and judgment only upon a showing of clear error, meaning error which leaves us with a definite and firm conviction that a mistake has been made. Id.
II. Ineffective Assistance of Trial Counsel
[12] We evaluate ineffective assistance of counsel claims under the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on such a claim, a petitioner must show that 1) his counsel's performance was deficient based on prevailing professional norms; and 2) that the deficient performance prejudiced the defense. Weisheit, 109 N.E.3d at 983 (citing Strickland, 466 U.S. at 687). In order to demonstrate sufficient prejudice, the petitioner must show that there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Id. (citing Strickland, 466 U.S. at 694). A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. A petitioner's failure to satisfy
either the 'performance' or the 'prejudice' prong of a Strickland analysis will cause an ineffective assistance of counsel claim to fail. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). If it is easier to dispose of an ineffectiveness claim on the grounds that prejudice has not been shown, that course should be followed. Carter v. State, 929 N.E.2d 1276, 1280 (Ind. 2010).
[13] Rice's first contention is that Trial Counsel was ineffective for failing to object to or to quash the Information. More specifically, Rice argues that Trial Counsel should have challenged the adequacy of the Information because its supporting probable cause affidavit did not satisfy the requirements of Indiana Code section 35-33-5-2(b), which provides for establishment of credibility for hearsay in probable cause affidavits. Rice contends that "the problem with the affidavit is not that it was based on the lack of personal knowledge, rather the affidavit does not establish that a Rape occurred." (Appellant's Br. p. 12). At the base of this argument is Rice's assertion that the probable cause affidavit merely showed that M.S. agreed to perform consensual oral sex on him on September 10 and 11, 2014. However, in support of his argument, Rice only cites those portions of the probable cause affidavit concerning M.S.'s initial assent to provide him with oral sex. The remainder of the probable cause affidavit is replete with multiple, detailed statements by M.S. that, after her initial voluntary conduct, she continued to comply with Rice's commands to perform oral sex on him because she was afraid that he would continue to batter her or even kill her if she did not comply.
[14] Level 3 felony rape is defined in relevant part as the knowing or intentional causing of another person to perform other sexual conduct when the other person is compelled by force or imminent threat of force. Ind. Code § 35-42-4-1(a)(1). For purposes of the rape statute, "other sexual conduct" includes an act involving a sex organ of one person and the mouth of another person. I.C. § 35-31.5-2-221.5(1). The offense of rape becomes a Level 1 felony if it results in serious bodily injury to someone other than a defendant. I.C. § 35-42-4-1(b)(3). The existence of probable cause is a "'practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability' that the subject has committed a crime or evidence of a crime will be found." Shotts v. State, 925 N.E.2d 719, 723 (Ind. 2010) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). Because M.S.'s additional statements, which Rice does not acknowledge, let alone address, supported a finding of probable cause that she was forced by Rice to engage in oral sex through force and without her consent, any challenge to the sufficiency of the probable cause affidavit or the Information on this basis would not have been successful. What is more, even if Rice had been correct that the probable cause supporting the charging information was deficient, a lack of probable cause is not grounds for dismissing a charging information. Flowers v. State, 738 N.E.2d 1051, 1055 (Ind. 2000). As a result, Rice has failed to demonstrate that Trial Counsel performed deficiently in failing to challenge the probable cause affidavit and Information or that he was prejudiced thereby. See Weisheit, 109 N.E.3d at 983.
[15] Rice's claim that Trial Counsel was ineffective for failing to pursue a Franks hearing is equally unavailing. In Franks v. Delaware, 438 U.S. 154 (1978), the United States Supreme Court held that
where the defendant makes a substantial preliminary showing that a false statement knowingly or intentionally, or with reckless disregard for the truth, was included by the affiant in [a] warrant affidavit, and [was] necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.
438 U.S. at 155-56. Rice contends that Detective Floyd "testified falsely and recklessly and with no regard for the truth, in regards to the alleged Rape, . . . [the] [L]evel 1 and 3 felonies" because he argues that Detective Floyd prepared the probable cause affidavit after being told by M.S. that M.S. had consented to perform oral sex on him. (Appellant's Br. p. 14). This claim suffers from the same defect as Rice's other claim of Trial Counsel error in that it ignores the fact that M.S. provided Detective Floyd with additional statements that showed that, although she initially consensually provided Rice with oral sex, she later complied with his commands for oral sex against her will because she was afraid that he would hurt her. Rice presented no evidence at the PCR hearing that Detective Floyd testified falsely, recklessly, or without regard to the truth in the probable cause affidavit. Rice has failed to demonstrate that Trial Counsel performed deficiently by failing to pursue a meritless Franks hearing or that he was prejudiced as a result. See Weisheit, 109 N.E.3d at 983.
III. Ineffective Assistance of Appellate Counsel
[16] Rice lastly contends that Appellate Counsel was ineffective for failing to raise the probable cause and Franks hearing issues on direct appeal. 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, 19 N.E.3d at 269. Ineffective assistance of appellate counsel claims generally fall into three categories, namely (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, thus resulting in waiver for collateral review, 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. It is very rare that we find appellate counsel to be ineffective for failing to raise an issue on appeal, as the decision of what issues to raise is one of the most important strategic decisions made by appellate counsel. Id.
[17] Here, Appellate Counsel chose to challenge the sufficiency of the evidence supporting Rice's convictions. Appellate Counsel testified at the PCR hearing that, after reviewing the record, he believed this issue was the strongest issue for direct appeal. In response to Rice's and the post-conviction court's questioning, Appellate Counsel stated that he did not consider any claim of "false charging information" to be a legitimate issue. (PCR Transcript Vol. II, pp. 80-81). Given the deference we afford appellate counsel's decision on what issues to raise and that we have determined that the issues Rice proposes should have been raised on appeal are meritless, we cannot say that the probable cause and Franks hearing issues were significant and obvious from the face of the record, that they were clearly stronger than the sufficiency of the evidence claim, or that they would have been more likely to result in a reversal or a new trial. See Reed, 856 N.E.2d at 1195. Rice has failed to persuade us that his appellate counsel was ineffective for failing to raise meritless issues, and the post-conviction court's conclusion in this regard was not clearly in error. See Hollowell, 19 N.E.3d at 269.
CONCLUSION
[18] Based on the foregoing, we conclude that the post-conviction court's determination that Rice was not deprived of the effective assistance of Trial or Appellate Counsel was not clearly erroneous.
[19] Affirmed.
[20] Bailey, J. and Pyle, J. concur