Opinion
23A-PC-3119
06-18-2024
Richard Short, Appellant-Petitioner v. State of Indiana Appellee-Respondent
ATTORNEY FOR APPELLANT Jonathan D. Harwell Harwell Gray Legal Counsel, LLC Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jesse R. Drum Assistant Section Chief, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Madison Circuit Court The Honorable Angela Warner Sims, Judge Trial Court Cause No. 48C01-1907-PC-36
ATTORNEY FOR APPELLANT Jonathan D. Harwell Harwell Gray Legal Counsel, LLC Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jesse R. Drum Assistant Section Chief, Criminal Appeals Indianapolis, Indiana
Judges Crone and Tavitas concur.
MEMORANDUM DECISION
Bradford, Judge.
Case Summary
[¶1] Richard Short pled guilty to murder and was sentenced to fifty-five years of incarceration. Seven years later, Short petitioned for post-conviction relief ("PCR"), arguing that he had received ineffective assistance of counsel when his trial counsel had neglected to investigate his mental-health issues and tender a lesser-included-offense instruction. The post-conviction court denied Short's PCR petition. Short argues that (1) the post-conviction court abused its discretion when it denied his request for a continuance and (2) he had received ineffective assistance when his counsel did not obtain a competency evaluation and tender a lesser-included offense instruction. We affirm.
Facts and Procedural History
[¶2] In 2009, Short was serving a prison sentence when the State charged him with Class B felony prisoner possessing a dangerous device or material. Christopher Cage was appointed to represent Short in that case. In 2010, while that case was pending, Short stabbed another inmate to death. As a result, the State charged Short with murder and Class B felony prisoner possessing a dangerous device or material.
[¶3] Cage was appointed to represent Short in his murder case. From his previous representation of Short, Cage knew that Short had been diagnosed with bipolar disorder and prescribed medication; Cage, however, did not "question [Short's] competency to stand trial or his [_] ability to understand right or wrong[.]" Tr. Vol. II p. 22. Cage researched the standard for guilty but mentally ill and determined that Short was not "anywhere close to being able to meet that standard." Tr. Vol. II p. 23. Short and Cage discussed possible defenses to the murder charge, including self-defense and lesser-included offenses, but Cage did not believe these were viable, and Short "shot down every defense [Cage] brought to him." Tr. Vol. II p. 28.
[¶4] In 2012, Short agreed to plead guilty to murder, and the State agreed to dismiss the two pending Class B felony charges and cap his sentence for murder at fifty-five years. Cage and Short discussed Short's guilty plea in person for over an hour a few days before the guilty-plea hearing and again for thirty to forty-five minutes just before the hearing.
[¶5] At the guilty-plea hearing, Short testified that he had never been treated for or suffered from any mental illness or emotional disability. Short also indicated that he had understood his constitutional rights and that, by pleading guilty, he was waiving them. Short further testified that his decision to plead guilty had been his own "free and voluntary act" and that he had been satisfied with the way Cage had represented him. Appellant's App. Vol. II p. 116. The trial court accepted Short's guilty plea and sentenced him in accordance with the plea agreement.
[¶6] In 2019, Short filed his PCR petition. Short argued, in part, that Cage had provided him with ineffective assistance of counsel because he had not tried to reduce Short's charge to something less than murder and had not investigated Short's mental illness. As evidence, Short attached to his petition transcripts of his guilty-plea and sentencing hearings, some prison records, and an affidavit from another inmate. The post-conviction court set the matter for an evidentiary hearing in September of 2020; however, the State sought a continuance to subpoena Cage.
[¶7] The post-conviction court continued the hearing to January 5, 2021. At this hearing, Short requested a continuance, explaining that he had been in the process of hiring counsel. The post-conviction court allowed the State to present Cage's testimony and left the record open for sixty days to give Short time to hire counsel and for that counsel "to file any appropriate pleadings during that time." Tr. Vol. II p. 30. On January 26, 2021, Short moved for another continuance, asking for an additional 120 days to hire counsel. The post-conviction court denied this motion.
[¶8] On May 18, 2021, counsel entered an appearance for Short and moved for rehearing on Short's continuance motion so that he could amend his petition, which motion the post-conviction court denied. In September of 2021, Short moved again for rehearing, claiming that he needed "additional time to investigate, amend the [PCR] petition [...], and to present the evidence to the court." Appellant's App. Vol. II p. 88. Ultimately, the post-conviction court denied Short's PCR petition.
Discussion and Decision
[¶9] Indiana Post-Conviction Rule 1(1) enables a petitioner who has exhausted his direct appeals to challenge the correctness of his conviction or sentence by filing a PCR petition. Our post-conviction rules "create a narrow remedy for subsequent collateral challenges to convictions." Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). A "petitioner who has been denied post-conviction relief appeals from a negative judgment and as a result, faces a rigorous standard of review on appeal." Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001). "The petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence." Ind. P-C.R. 1(5).
[¶10] We will reverse the post-conviction court's findings "only upon a showing of clear error [_] which leaves [us] with a definite and firm conviction that a mistake has been made." Hollowell v. State, 19 N.E.3d 263, 269 (Ind. 2014) (citing Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000)). Further, we will "neither reweigh the evidence nor determine the credibility of witnesses"; rather, we "consider only the evidence that supports the judgment and the reasonable inference to be drawn from that evidence." Ben-Yisrayl, 729 N.E.2d at 106. Put simply, a petitioner must show that the evidence "leads unerringly and unmistakably to a conclusion opposite that reached" by the post-conviction court. Hollowell, 19 N.E.3d at 269.
I. The Post-Conviction Court did not Abuse its Discretion in Denying Short's Motion for a Continuance
[¶11] First, Short argues that the trial court abused its discretion in denying his motion for a continuance. A post-conviction court's decision whether to grant or deny a motion for a continuance is reviewed for an abuse of discretion and resultant prejudice. Tapia v. State, 753 N.E.2d 581, 586 (Ind. 2001); see also Evans v. State, 809 N.E.2d 338, 342 (Ind.Ct.App. 2004), trans. denied. A postconviction court abuses its discretion when its decision is "clearly against the logic and effects of the facts and circumstances before" it. Tapia, 753 N.E.2d at 586. We conclude that the post-conviction court did not abuse its discretion in denying Short's motion for a continuance.
[¶12] At the time Short moved the post-conviction court for this additional 120-day continuance, he still had over one month remaining on his initial sixty-day continuance. Further, Short stated in his motion that he had found counsel that had agreed to represent him, but he neglected to explain why he and his counsel would be unable to comply with the deadline imposed by the original continuance. Notably, at the time the post-conviction court denied Short's continuance in February of 2021, Short still had over two weeks for his counsel to appear and file any necessary pleadings. Short's counsel, however, did not appear until May 18, 2021.
[¶13] Moreover, Short has failed to demonstrate how he suffered prejudice by the post-conviction court's denial of his motion. See Ind.App. R. 66(A) ("No error or defect in any ruling or order or in anything done or omitted by the trial court [..] is ground for granting relief or reversal on appeal where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties."). Beyond claiming that the postconviction court abused its discretion in denying his motion, Short does not explain how he had suffered prejudice or what he would have done differently had he been granted additional time. Given our deference to the postconviction court's decision on this issue, we cannot say that it abused its discretion. Tapia, 753 N.E.2d at 586.
II. Cage did not Provide Ineffective Assistance of Counsel
[¶14] Second, Short claims that we should reverse the post-conviction court's order denying his PCR petition because he had received ineffective assistance of trial counsel when Cage neglected to seek a competency evaluation or tender a lesser-included offense instruction. To prevail on an ineffective-assistance-of-counsel claim, a defendant must demonstrate that (1) counsel's performance was deficient and (2) the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). Prejudice arises when a defendant shows that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. However, when analyzing an ineffective-assistance claim, we begin with the presumption that counsel rendered effective representation. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998). Moreover, counsel has "considerable discretion in choosing strategy and tactics[.]" Stevens v. State, 770 N.E.2d 739, 746-47 (Ind. 2002). "Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective." Id. at 747.
[¶15] Short argues that Cage performed deficiently by failing to request a competency evaluation. We, however, disagree. Prior to his guilty plea, Short was facing charges for two Class B felonies and murder, for a total exposure of 105 years. Cage represented Short in two cases for approximately three years and nothing in that time made him "question [Short's] competency to stand trial [...] or his ability to understand right and wrong." Tr. Vol. II p. 22. Moreover, Cage researched the standard for guilty but mentally ill and determined that Short was not "anywhere close to being able to meet that standard." Tr. Vol. II p. 23. As a result, Cage, exercising his strategic discretion as trial counsel, helped Short secure a plea deal and reduced Short's total exposure from 105 years to fifty-five. See Stevens, 770 N.E.2d at 746-47.
[¶16] Further, Short argues that Cage performed deficiently in failing to tender a lesser-included-offense instruction or a notice of defense. Again, we disagree. Because Short had entered a plea deal, there was no jury to instruct. Additionally, when it comes to a notice of defense, Short and Case had discussed possible defenses to the murder charge, including self-defense and lesser-included offenses, but Cage did not believe these were viable and Short "shot down every defense [Cage] brought to him." Tr. Vol. II p. 28. In short, we cannot say that Cage performed deficiently in either of these respects. Because Short has failed to show that Cage performed deficiently, we need not reach the prejudice analysis. See Strickland, 466 U.S. at 697 ("[T]here is no reason for a court deciding an ineffective assistance claim to [_] address both components of the inquiry if the defendant makes an insufficient showing on one.").
[¶17] The judgment of the post-conviction court is affirmed.
Crone, J., and Tavitas, J., concur.