Opinion
23A-PC-1943
07-19-2024
Floyd B. Sells, Appellant-Petitioner v. State of Indiana, Appellee-Respondent
APPELLANT PRO SE Floyd B. Sells Pendleton Correctional Facility Pendleton, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Sierra A. Murray 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 DeKalb Circuit Court The Honorable Kurt B. Grimm, Judge Trial Court Cause No. 17C01-2006-PC-4
APPELLANT PRO SE
Floyd B. Sells
Pendleton Correctional Facility
Pendleton, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Sierra A. Murray
Deputy Attorney General
Indianapolis, Indiana
May and Vaidik Judges concur.
MEMORANDUM DECISION
Kenworthy, Judge.
Case Summary
[¶1] Floyd B. Sells, pro se, appeals the denial of his petition for post-conviction relief, raising multiple issues for our review, which we restate as:
1. Did the post-conviction court err in not holding a hearing prior to denying Sells post-conviction relief?
2. Did the post-conviction court err in not providing Sells with a copy of the record from his direct appeal?
3. Is the post-conviction court's order denying Sells post-conviction relief sufficient?
4. Did the post-conviction court clearly err in determining Sells was not denied the effective assistance of trial counsel?
We affirm.
Facts and Procedural History
[¶2] In 2017, Sells was convicted of Class A felony rape, Class A felony deviate conduct, and Class B felony child molesting. The trial court sentenced Sells to an aggregate seventy-year term in the Department of Correction. In affirming Sells' convictions on direct appeal, a panel of this Court detailed the events underlying his convictions:
On July 9, 1987, Sells married S.O., who had four young children from a previous marriage: J.B., F.B., P.B.C., and A.B.
Sells and S.O. were married for approximately eleven years. In 1992, when F.B. was eleven and P.B.C. was nine years old, the family moved to a house on High Street in Garrett (the High Street House); in 1995, when F.B. was fourteen or fifteen and P.B.C. was twelve or thirteen, they moved to a house on King Street in Garrett (the King Street House).
Over the years, Sells molested his young stepchildren hundreds of times. The molestations were frequently accompanied by threats of violence, weapons, and warnings to keep quiet or the entire family would be killed. Examples of the frequent incidents include:
• Around Christmas time in the High Street House, Sells had anal intercourse with twelve-year-old F.B. Sells told F.B. that if he did not allow the act to occur, he would kill F.B.'s family in front of him and then kill F.B. At the High Street House, Sells sometimes raped F.B. two or three times a week, adding up to over a hundred times when F.B. was twelve to fifteen years old.
• In the King Street house, Sells frequently forced F.B. to perform oral sex. On more than one occasion, when F.B. refused, Sells put a shotgun in F.B.'s mouth and threatened to kill F.B., his siblings, and their mother if F.B. refused to perform oral sex. On another occasion, Sells forced F.B. to perform oral sex while Sells held a knife to his neck and threatened to slice his throat.
• As F.B. got older, he became stronger and more able to defend against Sells's advances. But when F.B. defended himself, Sells told him he either had to let his siblings perform the acts on Sells or he would
kill F.B. and his siblings. Sells then forced F.B. to choose one of his siblings to go into the room with Sells.
• In 1995, Sells bent eleven-year-old P.B.C. over a banister and had sexual intercourse with her, threatening to kill her and her family if she refused. She testified that he raped her so many times and in so many places that she could not remember them all.
• In the summer of 1995, five-year-old K.G., who was Sells's niece, stayed with Sells and his family for the weekend. At some point, Sells put his penis in K.G.'s mouth and then had sexual intercourse with her, threatening to kill her family if she told anyone.
On October 5, 2016, the State charged Sells with Class A felony rape and two counts of Class A felony criminal deviate conduct, later joining those charges with another pending action in which Sells was facing a Class B felony child molesting charge.Sells v. State, No. 17A03-1708-CR-1980, at *2-3 (Ind.Ct.App. Feb. 28, 2018) (mem.) (internal citations omitted).
[¶3] Sells filed multiple petitions for post-conviction relief, which were later consolidated. Sells amended his petition in August 2022. In his amended petition, Sells alleged his trial counsel was ineffective for: (1) failing to object to the State's "willful circumvention of the Statute of Limitations and move to dismiss Count I, Rape"; and (2) failing to "perform meaningful investigation of potential witnesses prior to choosing a trial strategy." Appellant's App. Vol. 2 at 27. The State answered Sells' petition the next day.
[¶4] Around this time, Sells moved for an evidentiary hearing. The post-conviction court denied Sells' motion and ordered the case submitted upon affidavit under Indiana Post-Conviction Rule 1(9)(b). In December 2022, Sells moved for the post-conviction court to take judicial notice of the record from his direct appeal. The post-conviction court denied Sells' motion about a week later. Soon after, Sells moved to transfer the appellate record into his post-conviction cause. The post-conviction court did not rule on the motion. In February 2023, Sells again moved for an evidentiary hearing. The post-conviction court denied Sells' request, stating his case would be submitted upon affidavit as previously ordered.
[¶5] To support his claim that his trial counsel was ineffective, Sells submitted four affidavits. In one affidavit, Aarika Jiminez explained she spent summers with Sells and his family when Sells lived in the King Street house. Jiminez stated she never saw "anything inappropriate" between Sells and his stepchildren and shared Sells was never left alone with the children. Id. at 71. Jiminez also claimed she would have testified police pressured her to say Sells molested her. In another affidavit, Ronnetta Aguilar-Sells' sister-said she often stayed with Sells on the weekend and for a few months in 1989 and 1990. Aguilar said she never saw anything inappropriate between Sells and his stepchildren during the time she stayed with him, and Sells was never left alone with his stepchildren. Sells also submitted an affidavit from his cousin, Sabrina Smith, who stayed with Sells and his family for a few weeks at a time between 1988 and 1991 and a three-week period in 1994. According to Smith, she never saw Sells do anything inappropriate to his stepchildren. Sells' final affidavit included statements from his brother, Joseph Sells. Joseph explained, "the magazine related to my father's ancestors was kept in my father's closet until after he died in 2000" and his father "would not let anyone have the magazine, borrow it, or even look at it because it was falling apart." Id. at 74.
The magazine purports to include a discussion about Sells' grandfather murdering his wife-Sells' grandmother. Sells apparently used this information to threaten his stepchildren, claiming "the blood runs in him and he's not scared to go to jail for murder or anything[.]" Direct Appeal Tr. Vol. 2 at 74.
[¶6] The post-conviction court denied Sells' request for relief, finding trial counsel was not ineffective.
Standard of Review in Post-Conviction Proceedings
[¶7] 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); Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019), cert. denied. The scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal. See Gibson, 133 N.E.3d at 681. "Issues available on direct appeal but not raised are waived, while issues litigated adversely to the defendant are res judicata." Id. (quoting Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012)). It is the defendant's burden to establish his claims by a preponderance of the evidence. See P.-C.R. 1(5). When, as here, a defendant appeals from a negative judgment denying post-conviction 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." Gibson, 133 N.E.3d at 681 (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied). We will affirm the post-conviction court's denial of relief when the defendant fails to meet this "rigorous standard of review." Id. (quoting DeWitt v. State, 755 N.E.2d 167, 169 (Ind. 2001)).
Although Sells proceeds pro se, it is well settled that pro se litigants are held to the same standards as licensed attorneys. See Rose v. State, 120 N.E.3d 262, 266 (Ind.Ct.App. 2019), trans. denied.
[¶8] When the post-conviction court makes findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we will reverse the findings and judgment "only upon a showing of clear error-that which leaves us with a definite and firm conviction that a mistake has been made." Bobadilla v. State, 117 N.E.3d 1272, 1279 (Ind. 2019) (quoting Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017)). We do not reweigh evidence or judge witness credibility. See Bradbury v. State, 180 N.E.3d 249, 252 (Ind. 2022) (explaining the post-conviction court is the "sole judge of the evidence and the credibility of the witnesses") (citation omitted), cert. denied. And we do not defer to the post-conviction court's legal conclusions. See Bobadilla, 117 N.E.3d at 1279.
1. No error in denying Sells' motion without holding an evidentiary hearing.
[¶9] Sells first contends the post-conviction court erred in denying his petition without first holding an evidentiary hearing. Indiana Post-Conviction Rule 1(9)(b) provides one way for a post-conviction court to rule on a petition without an evidentiary hearing:
In the event petitioner elects to proceed pro se, the court at its discretion may order the cause submitted upon affidavit. It need not order the personal presence of the petitioner unless his presence is required for a full and fair determination of the issues raised at an evidentiary hearing.
This subsection "clearly and plainly provides that when a petitioner proceeds pro se, the [post-conviction] court has the discretion to order the cause submitted upon affidavit." Smith v. State, 822 N.E.2d 193, 201 (Ind.Ct.App. 2005), trans. denied. Likewise, the decision whether to hold an evidentiary hearing for a full and fair determination of the issues raised by a post-conviction petitioner is "best left to the [post-conviction] court's discretion." Id. Therefore, we review the post-conviction court's decision to forgo an evidentiary hearing when affidavits have been submitted under Rule 1(9)(b) for an abuse of discretion. Id. A post-conviction court exceeds its discretion "only where the decision is clearly against the logic and effect of the facts and circumstances." Russell v. State, 234 N.E.3d 829, 858 (Ind. 2024) (quotation omitted).
[¶10] Here, Sells submitted the affidavits of Jiminez, Aguilar, Smith, and Joseph in support of his petition. Sells could have obtained an affidavit from trial counsel to further support his ineffective assistance claims but failed to do so. See Smith, 822 N.E.2d at 201-02 (explaining if the petitioner believes there are witnesses to support his claims, he can either submit affidavits from those witnesses or follow the procedure set forth under Rule 1(9)(b) and request such witnesses be subpoenaed). Sells' claim that "counsel will not willingly provide an affidavit" merely because Sells is alleging "deficient performance on the part of counsel" does not rise above the level of speculation. Appellant's App. Vol. 2 at 67. Sells has not demonstrated how he would have benefitted from an evidentiary hearing or identified any evidence he wished to present that could not have been presented via affidavit or in documentary form. Because Sells has "failed to show how an evidentiary hearing would have aided him," we cannot say the post-conviction court abused its discretion in ordering the parties to proceed by affidavit and without an evidentiary hearing. Smith, 822 N.E.2d at 201; see also Fuquay v. State, 689 N.E.2d 484, 486 (Ind.Ct.App. 1997) (noting the post-conviction court did not abuse its discretion in ordering the parties to proceed by affidavit where the petitioner failed to demonstrate how an evidentiary hearing would have aided him), trans. denied.
Sells' reliance on Hamner v. State, 739 N.E.2d 157 (Ind.Ct.App. 2000) is misplaced. The issue in Hamner was whether the trial court erred in denying the petitioner's post-conviction petition without first conducting a hearing pursuant to Indiana Post-Conviction Rule 1(4)(f), which permits the court to deny the petitioner's petition without further proceedings if "the pleadings conclusively show that petitioner is entitled to no relief." The post-conviction court did not deny Sells' petition based on the pleadings alone as contemplated by Rule 1(4)(f). Further, subsequent opinions of this Court have backed away from the reasoning in Hamner to the extent that the panel conflated the standard applicable under Post-Conviction Rules 1(4)(f) and (g) with summary disposition under Rule 1(9)(b). See Smith, 822 N.E.2d at 200-01.
2. No error relating to the post-conviction court not providing Sells with a copy of his direct appeal record.
[¶11] Next, Sells claims the post-conviction court erred in not taking judicial notice of the record from his direct appeal and by not providing him with a copy of the same. According to Sells, he did not have a certified copy of his direct appeal record, the resources to obtain a satisfactory copy, or the ability to borrow a copy from the court for his post-conviction proceeding. Therefore, in Sells' view, the post-conviction court erred by not helping him "obtain the direct appeal [r]ecord" so that he could submit the record into evidence during his post-conviction proceeding. Appellant's Br. at 17.
[¶12] "For years, [Evidence] Rule 201 did not permit a trial court to take judicial notice of court records, even if they were 'its own records in another case previously before the court on a related subject with related parties.'" Horton v. State, 51 N.E.3d 1154, 1160 (Ind. 2016) (quoting Gray v. State, 871 N.E.2d 408, 413 (Ind.Ct.App. 2007), trans. denied). Effective January 1, 2010, however, the Indiana Supreme Court amended Rule 201 so that it now permits courts to take judicial notice of records of a court of this State. Id.; see also Ind. Evidence Rule 201(a)(2)(C) ("The court may judicially notice . . . the existence of . . . records of a court of this state.") A court may take judicial notice "at any stage of the proceeding." Evid. R. 201(d). And a court "must take judicial notice if a party requests it and the court is supplied with the necessary information." Evid. R. 201(c)(2).
[¶13] Here, Sells filed a motion requesting the post-conviction court take judicial notice of the records from his trial and direct appeal. The post-conviction court denied Sells' motion, reasoning it is "not incumbent upon [the post-conviction court] to search for, locate and determine relevant portions of the record in other proceedings, should they exist." Appellant's App. Vol. 2 at 50. That said, the post-conviction court did eventually take judicial notice of Sells' record, as noted in the court's order denying Sells post-conviction relief. See id. at 9 ("The Court directed that the entire transcript of the trial in DeKalb Superior Court 1 be electronically provided to the Court Reporter of the DeKalb Circuit Court and in fact the transcript was transferred electronically and available to the Court."). Sells acknowledges as much in his brief. See Appellant's Br. at 17. In the end, Sells obtained what he requested, albeit in an indirect way. Accordingly, we cannot say the post-conviction court erred in this respect.
To the extent Sells claims the post-conviction court erred in not helping him obtain a copy of his direct appeal record, we disagree. To make this claim, Sells relies heavily on Hubbell v. State, 58 N.E.3d 268 (Ind.Ct.App. 2016). In Hubbell, a panel of this Court reversed the denial of a post-conviction petition on the basis that the post-conviction court refused to obtain a certified copy of Hubbell's direct appeal record on his behalf upon request. Hubbell, 58 N.E.3d at 278. In the panel's view, declining to obtain a copy of the direct appeal record was reversible error because not aiding Hubbell "precluded him from presenting the evidence he needed to assert his claims," at an evidentiary hearing. Id. at 277. Indeed, the post-conviction court refused to take judicial notice of Hubbell's direct appeal record and declined to help him obtain a copy even though Hubbell explained he needed it to help him question witnesses. Id. at 272-73. In one respect, Sells is correct: both he and the petitioner in Hubbell were pro se, indigent, and non-attorneys. But a handful of facts make his situation distinguishable from the Hubbell petitioner's. As previously explained in this opinion, Sells was not entitled to an evidentiary hearing; thus, there is no concern regarding his ability to adequately question witnesses without a copy of his direct appeal record. Moreover, the post-conviction court took judicial notice of Sells' entire transcript, unlike the post-conviction court in Hubbell. And lastly, as of January 1, 2020, Indiana's Rules on Access to Court Records can more broadly assist a party in obtaining a copy of their record. In sum, Sells stands in a notably different position than the petitioner in Hubbell.
We do, however, note our Supreme Court has reminded it is best practice for a court to enter into the record the documents of which it takes judicial notice. See Horton, 51 N.E.3d at 1160. Although not doing so can impede appellate review, a court does not necessarily reversibly err when it falls short of this recommended practice. See id. at 1161, 1163. We encourage courts to heed our Supreme Court's advice.
3. The post-conviction court's order was sufficient.
[¶14] Sells also challenges the sufficiency of the post-conviction court's order. Indiana Post-Conviction Rule 1(6) requires a court to make "specific findings of fact, and conclusions of law on all issues presented, whether or not a hearing is held." The court's findings must "communicate the basis upon which the petition is granted or denied" in a manner sufficient for appellate review. Bean v. State, 467 N.E.2d 671, 673 (Ind. 1984); see also Lucas v. State, 552 N.E.2d 35, 39 (Ind. 1990) (explaining the findings of fact and conclusions of law, even if not overly specific, need only be enough to enable the reviewing court to understand the decision and the process used in making that decision).
[¶15] In its nine-page order denying Sells relief, the post-conviction court made findings of fact supported by the record, set forth the proper standard for evaluating a claim of ineffective assistance of counsel, applied this standard, and determined Sells' "[t]rial counsel rendered sufficient performance in not objecting to the charging information and also in electing which witnesses to interview." Appellant's App. Vol. 2 at 15. In other words, the post-conviction court addressed both grounds upon which Sells argued his counsel provided ineffective assistance in a manner sufficient for our review. Because the post-conviction court provided sufficient findings of fact and conclusions of law, we cannot say its order is inadequate. See Lowe v. State, 455 N.E.2d 1126, 1128 (Ind. 1983) (finding no reversible error when an order allowed for sufficient appellate review even though the order was lacking specificity and "unfortunately general and conclusory in nature").
The post-conviction court erroneously concluded a claim of ineffective assistance of counsel is waived if not raised on direct appeal. See Woods v. State, 701 N.E.2d 1208, 1220 (Ind. 1998) (holding that claims of ineffective assistance of counsel could be litigated in post-conviction proceedings if not (but only if not) litigated on direct appeal), cert. denied. Regardless, the court addressed Sells claim of ineffective assistance of counsel anyway and determined Sells was not entitled to relief.
4. The post-conviction court did not clearly err when determining Sells did not establish ineffective assistance of counsel.
[¶16] Lastly, Sells argues the post-conviction court clearly erred when determining his trial counsel was not ineffective for (1) failing to object to Sells' charge of Class A felony rape, and (2) failing to investigate potential defense witnesses. To prevail on this claim, Sells must show: (1) his counsel's performance fell short of prevailing professional norms; and (2) counsel's deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
[¶17] To show deficient performance, Sells must prove his legal representation lacked "an objective standard of reasonableness," which effectively deprived him of his Sixth Amendment right to counsel. Gibson, 133 N.E.3d at 682 (quoting Overstreet v. State, 877 N.E.2d 144, 152 (Ind. 2007)). And to demonstrate prejudice, Sells must show a "reasonable probability that, but for counsel's errors, the proceedings below would have resulted in a different outcome." Id. "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. Unless Sells makes both showings, his claim of ineffective assistance fails. See id. Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. See Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006); see also Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.").
[¶18] When assessing counsel's performance under Strickland, the post-conviction court is guided by "several important guidelines." Gibson, 133 N.E.3d at 682. First, the post-conviction court strongly presumes "counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002), cert. denied. Next, the post-conviction court affords counsel "considerable discretion in choosing strategy and tactics, and these decisions are entitled to deferential review." Id. at 746-47. And finally, "[i]solated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective." Id. at 747 (quoting Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001)).
A. Trial counsel was not ineffective for failing to object to Sells' rape charge.
[¶19] Sells claims his trial counsel was ineffective for failing to object to the charging information, which he believes "contained a willful evasion of the statute of limitations." Appellant's Br. at 20. Sells contends his charge for Class A felony rape was actually "an act of child molesting," and had his trial counsel objected to "the State's attempt to sidestep the statute of limitations," the trial court would have dismissed the information charging Sells with rape. Id. at 21, 2628. To prove ineffective assistance of counsel due to the failure to object, Sells must prove an objection would have been sustained if made and he was prejudiced by the failure to object. Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001). Sells cannot make such a showing here.
[¶20] Prosecutors generally have broad discretion in deciding which charges to file. See Hendrix v. State, 759 N.E.2d 1045, 1047 (Ind. 2001). This discretion extends to situations where two criminal statutes overlap such that either may cover a given set of facts. See Skinner v. State, 736 N.E.2d 1222, 1222 (Ind. 2000). In other words, the State need not prosecute under the more specific or more recently enacted of the two statutes. See id.; see also Durrett v. State, 219 N.E.2d 814, 817 (Ind. 1966) ("It is sufficient if the indictment or affidavit charges and the evidence proves an offense under a statute, even though the charge might have been brought under a different statute providing a lesser penalty.").
[¶21] In Sells' case, the prosecutor exercised her discretion and charged Sells with rape, not child molesting, for certain acts he committed against one of his stepchildren. We cannot say the prosecutor went beyond her discretion by doing so. Even if Sells' trial counsel had objected on these grounds, the trial court would have neither sustained Sells' objection nor dismissed his rape charge. Thus, the post-conviction court did not clearly err in determining Sells' trial counsel did not render inadequate assistance such that Sells was prejudiced by the failure to object.
B. Trial counsel was not ineffective for failing to investigate potential defense witnesses.
[¶22] Sells also claims his trial counsel was ineffective for failing to investigate potential defense witnesses. When deciding a claim of ineffective assistance of counsel for failure to investigate, the post-conviction court gives a "great deal of deference to counsel's judgments." Boesch v. State, 778 N.E.2d 1276, 1283 (Ind. 2002). Establishing such a claim "requires going beyond the trial record to show what an investigation, if undertaken, would have produced." Reeves v. State, 174 N.E.3d 1134, 1141 (Ind.Ct.App. 2021), trans. denied. That is because Sells must also show "there is a reasonable probability . . . the result of the proceeding would have been different" absent counsel's deficient performance. Strickland, 466 U.S. at 694.
[¶23] To show his trial counsel rendered ineffective assistance based on a failure to investigate, Sells submitted four affidavits, one from each of the alleged overlooked witnesses. In denying Sells post-conviction relief on this claim, the post-conviction court parsed each of the affidavits. Ultimately, the post-conviction court found Jiminez's, Smith's, and Aguilar's affidavits concerned "loose approximations of time" and failed to "negate the possibility" Sells raped and molested his stepchildren. Appellant's App. Vol. 2 at 10. As the post-conviction court reasoned, "[p]eople do not, as a general rule, molest children in front of witnesses." Id. The post-conviction court also classified Joseph's affidavit about the magazine as "of little import to the Court," conveying there was "nothing more than an inference of nexus" connecting the content of the affidavit to the fears expressed by a victim during Sells' trial. Id. at 13.
[¶24] All this to say, the post-conviction court assigned minimal persuasive value to the affidavits submitted by Sells, especially given the "'voluminous and compelling evidence supporting Sells's guilt' presented at trial." Id. at 15-16 (quoting Sells, No. 17A03-1708-CR-1980 at *5-6). Phrased differently, the post-conviction court determined the testimony in the affidavits, even if taken as true, failed to undermine confidence in the outcome of Sells' trial. Because the record supports this conclusion and the evidence does not compel a contrary conclusion, we decline to reverse the denial of post-conviction relief on this claim.
Conclusion
[¶25] Sells has not shown the evidence unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision. Nor has Sells proven the post-conviction court procedurally erred in denying him relief.
[¶26] Affirmed.
May, J., and Vaidik, J., concur.