Deputy Public Defender
Deputy Public Defender
Deputy Public Defender
Attorneys for Appellee
Attorney General of Indiana
Priscilla J. Fossum
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
A court that hears a post-conviction claim must make findings of fact and
conclusions of law on all issues presented in the petition. See Ind.
Post-Conviction Rule 1(6). The findings must be supported by facts and the
conclusions must be supported by the law. See Bivins v. State, 735
N.E.2d 1116, 1121 (Ind. 2000), rehg denied. Our review on appeal is
limited to these findings and conclusions.
We apply a deferential standard of review when examining these findings and conclusions. See Williams, 724 N.E.2d at 1076 (Post-conviction procedures do not afford the defendant with a super-appeal.). Because the petitioner bears the burden of proof in the post-conviction court, see Ind. Post Conviction Rule 1(5), an unsuccessful petitioner appeals from a negative judgment. A petitioner appealing from a negative judgment must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite to that reached by the trial court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993), rehg denied. This means that [we] will disturb a post-conviction courts decision as being contrary to law only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion. Miller v. State, 702 N.E.2d 1053, 1058 (Ind. 1998), cert. denied, 528 U.S. 1083 (2000).
First, the post-conviction court made findings of fact to the effect that [t]rial
would not have necessar[il]y excluded [this juror] had he know[n] about
her convictions, but since the convictions were related to alcohol use he would
have asked additional voir dire questions relating to her behavior. [Counsel] did
not find the facts of the convictions to be troubling. Appellants Appendix
There is evidence in the post-conviction record to support the post-conviction courts findings
of fact. Allens trial counsel testified at a deposition that he would
not have sought to exclude the juror solely on the basis of the
prior arrests even if she had disclosed them on the questionnaires. However,
trial counsel testified that had he known of the prior offenses, he would
have questioned the juror as to whether it had been something of a
recent nature and also kind of look to see if theres more than
or tried to figure out whether or not there was a
pattern, whether or not I was dealing with a drunk. (R.P-C.R. at
2362, Petitioners Exhibit 45 at 28-29.) He emphasized that quite simply, if
she had been arrested in some proximity to this in this succession of
one or two or three or something of that nature
this persons got a problem and even ge
tting arrested isnt
remedying it. (Id.) On redirect, counsel again testified that he would have
[the jurors] pattern of conduct, [and] the proximity of time is
obviously one of th[ose] things. (Id. at 113.)
From its findings, the post-conviction court concluded that Allen suffered no harm because
his trial counsel would not have moved to exclude the juror even if
he knew about the jurors misstat
ements. Specifically, the post-conviction court concluded that
Allens evidence falls short to show that his trial counsel would have removed
[the juror] from the jury panel had he known of the convictions.
Trial counsel wavered as to whether that juror would have been excluded or
not. Allen has not shown any prejudice from the juror misconduct
. Appellants Appendix at 18 (emphasis in original).
Having found evidence to support the post-conviction courts findings of fact, we will
upset its conclusions of law only if the evidence is without conflict and
leads to but one conclusion, and the post-conviction court has reached the opposite
Miller, 702 N.E.2d at 1058.
The post-conviction courts conclusion that Allen suffered no harm is supported by its
dings. Allens trial counsel testified that the jurors previous arrests alone would
not have led him to seek her dismissal from the panel. He
testified that he would have asked follow-up questions in order to determine whether
the juror had a problem with alcohol that would prevent her from functioning
as a juror. However, the post-conviction court could conclude that even these
follow-up questions would not have led counsel to attempt to exclude the juror.
The four offenses were scattered over 27 years.
The post-conviction court
could properly conclude that these arrests were too infrequent to suggest the type
of pattern of alcohol-related misconduct that would have led trial counsel to seek
the jurors exclusion. It is also plausible that the post-conviction court inferred
that because the juror herself had been a defendant in a criminal proceeding,
she might have had more empathy for Allen than would a potential juror
who had never been arrested or tried. That is, the post-conviction court
could infer from the record she was the type of juror that the
State and not Allen would strike from the jury panel.
These claims are similar to those raised in Ben-Yisrayl v. State, 738 N.E.2d
253, 260 (Ind. 2000). In that case, the petitioner attempted to raise
several claims of trial counsel ineffectiveness, but we rejected those claims because he
raised trial counsels performance as an issue on direct appeal. Id. at
259 (citing Woods, 701 N.E.2d at 1220). However, the petitioner also argued
that appellate counsel failed to raise properly preserved meritorious issues and errors apparent
in the record, failed to take necessary steps to adequately present issues that
were raised, and pursued the issue of ineffective assistance of trial counsel without
completely investigating and raising all related issues. Id. at 260. We analyzed
these claims under the following standard:
When the claim of ineffective assistance is directed at appellate counsel for failing fully and properly to raise and support a claim of ineffective assistance of trial counsel, a defendant faces a compound burden on post-conviction. If the claim relates to issue selection, defense counsel on post-conviction must demonstrate that appellate counsels performance was deficient and that, but for the deficiency of appellate counsel, trial counsels performance would have been found deficient and prejudicial. Thus, the defendants burden before the post-conviction court was to establish the two elements of ineffective assistance of counsel separately as to both trial and appellate counsel.
Ben-Yisrayl v. State, 738 N.E.2d 253, 261-62 (Ind. 2000) (emphasis added).
Applying this standard to Allens claims of ineffective assistance of appellate counsel, we
conclude that the post-conviction court could determine that his appellate counsel were not
The post-conviction court concluded that
[Allens] appellate counsel at all stages was not ineffective in representing Allen but rather exerted an unusually vigorous defense . Those claims and allegations that Allen says should have been asserted by [appellate counsel] are not significant issues as compared to those that were raised. Further, there is not a reasonable probability that the outcome of the proceedings of the appeal would have been different had [counsel] raised other issues.
Appellants Appendix at 9.
The post-conviction court made certain findings of fact from which it concluded that counsel was not ineffective in this regard. The post-conviction court found that Allens appellate counsel
thoroughly reviewed the record of proceedings, interviewed Allen, and consulted other attorneys. After identifying issues he intended to raise on direct appeal, he hired an investigator to provide factual development and to develop litigation evidence. From the time of his appointment to the time he filed his opening brief, appellate counsel had five months to become familiar with the record. Additionally, [counsel] filed a 158 page brief raising 17 separate issues on direct appeal.
Id. at 8.
The post-conviction courts findings were supported by the evidence. Appellate counsel testified
at the post-conviction hearing that after he was appointed to represent Allen, he
came to the conclusion that he needed to complete factual investigation into Allens
background because he was concerned about [Allens] intellectual functioning. Counsel hired an
investigator to look into this potential mitigation evidence. Counsel and the investigator
then attempted to retrieve records from numerous sources, including Allens schools and the
Department of Correction.
See footnote This investigation produced affidavits describing Allens low I.Q. and
poor school record.
See infra note 25. Counsel filed a belated
motion to correct errors in the hopes of developing a record as to
these claims. Allen, 686 N.E.2d at 788 n.8. This motion was
denied. Id. However, we subsequently remanded Allens case because the record lacked
a written sentencing order. Id. Our remand order offered appellate counsel
the opportunity to present his mitigation evidence to the trial court. Id.
at 789. The trial court considered this evidence, and counsel raised the
trial courts consideration of it as an issue on direct appeal. Id.
at 790. Counsel testified that he believed that he needed to raise
the issue of counsels ineffectiveness as to this mitigation evidence because it was
raised in the belated motion to correct errors that he filed with this
court. He testified that he was concerned that a failure to do
so would result in waiver, especially since the order denying his belated motion
to correct errors made it clear that he could raise such issues in
his brief. He noted that he knew of cases holding that if
a defendants appellate counsel was different than trial counsel, the defendant was obligated
to raise a claim of ineffective assistance of counsel or the claim was
Having found evidence to support the post-convictions findings of fact, we will reverse
its conclusions of law only if the evidence is without conflict and leads
to but one conclusion, and the post-conviction court has reached the opposite conclusion.
Miller v. State, 702 N.E.2d 1053, 1058 (Ind. 1998), cert. denied, 528
U.S. 1083 (2000). Allens arguments as to appellate counsels ineffectiveness are that
counsel should not have raised issues regarding trial counsels mitigation case because he
would waive other mitigation issues, and, alternatively, that he should have conducted a
more thorough investigation of the issues that he did raise. We hold
that the post-conviction court could conclude that there is not a reasonable probability
that the outcome of the proceeding of the appeal would have been different
had [counsel] raised other issues. Appellants Appendix at 9.
We reach this conclusion because the post-conviction record does not show that trial
counsel was deficient in regards to the issues on which Allen relies to
support his claim of ineffective assi
stance of appellate counsel. Under Ben-Yisrayl,
a claim that appellate counsel was ineffective for failing fully and properly to
raise and support a claim of ineffective assistance of trial counsel will be
successful only when the petitioner shows that both trial counsel and appellate counsel
were ineffective under the Strickland standard. 738 N.E.2d at 261-62 (emphasis in
original). Therefore, Allens appellate counsel could not be ineffective for waiving some
claims of trial counsel error while failing fully to support others if Allens
post-conviction claims of trial counsel error did not in themselves warrant relief under
See footnote We will analyze his claims of trial counsel error in this
ecause, as the post-conviction court concluded, Allen cannot show that trial
counsel was ineffective, his claims of ineffective assistance of appellate counsel must fail
under the Ben-Yisrayl standard.
Allen raised several issues regarding the confession during his direct appeal.
Allen, 686 N.E.2d at 769-774, 777-79. Our opinion rejected Allens claims that
counsel was ineffective for failing to move to suppress the confession. Id.
at 777-79. This holding was based on two grounds, both of which
preclude Allens claims in this case. First, we held that Allens trial
counsel made a reasonable strategic decision not to move to suppress the confession,
especially in light of counsels attempts to persuade the jury to convict only
on the lesser included offense of voluntary manslaughter. Id. at 778 (The
strategic decision not to file a motion to suppress Allens statements therefore did
not deprive Allen of fair adversarial testing of the evidence.).
hypothetical motion should have been made on Miranda grounds (as Allen argued on
direct appeal) or on due process grounds (as Allen argues here), our determination
that counsel made a strategic decision not to move to suppress the confession
for any reason binds Allen. Second, our opinion on direct appeal also
concluded that even had counsel performed deficiently in regards to a motion to
suppress, Allen was not prejudiced under the Strickland standard. Id. at 778-79
(Assuming for the sake of argument that counsels failure to file a motion
to suppress is performance so deficient as to meet the first prong of
Strickland, we do not see prejudice sufficient to satisfy the second prong of
that test. The case against Allen was so strong there is not
a reasonable probability that the verdict might have been different but for counsels
alleged error.). Again, this determination bars Allens claims despite the different theories
under which a motion to suppress could have been raised.
The post-conviction court made no findings of fact in regards to counsels performance
on this issue. See Appellants Appendix at 10-11, 15-17. However, the
failure to enter specific findings of fact and conclusions of law is not
reversible error. Herman v. State, 526 N.E.2d 1183, 1184 (Ind. 1988). Instead,
we review Allens claim de novo.
Our review of the record indicates that trial counsel could have made a reasonable strategic decision not to attack the officers statement on the grounds that Allen asserts here. Counsel had two valid reasons for not impeaching the officers testimony in this manner: (1) the fact that in a statement to police Allen said he overheard the details of the crime on the police officers radios and (2) trial counsels concession of Allens involvement in the crime in an attempt to obtain a lesser conviction. First, in a statement to police, Allen said that he heard discussion of the crime on the police radio and trial counsel decided to emphasize this possibility. The officer whose testimony is in question testified that the radios were in use when he took Allen to the police station and noted that there might have been radio traffic concerning the crime. He also testified that Allen could have heard the radios for at least a brief period. Counsel revisited this issue during closing argument, reminding the jury that in the statement Allen maintained that he learned of the crime over the radio and noting that the police radio was all the way on for a couple of seconds. (R. at 2726.) It was reasonable for trial counsel to craft a strategy in regards to the officers testimony that was consistent with Allens statements, which were heard by the jury. Second, trial counsels performance in regards to the officers testimony is consistent with counsels decision to concede Allens presence at Griffins home as well as other incriminating facts in the hopes of obtaining a voluntary manslaughter conviction instead of a murder conviction. See Appellants Appendix at 16-17, Appellants Br. at 68-69. See footnote The evidence that Allen asserts here, which demo nstrates that Allen might not have known why he was taken to the police station, conflicts with this theory, and it was reasonable for counsel not to attack the officers testimony.
Appellants Appendix at 17 (emphasis omitted). It also concluded that the information that
Allen claims was not presented at his trial was available to [the trial
court] through [the] pre-sentence investigation report. Id. at n.22.
The post-conviction court made certain findings of fact from which it reached this conclusion. The post-conviction court found that
Allens prior criminal history included a conviction for the voluntary manslaughter of another elderly woman, Olga Cooper, during a burglary as well as a pending charge against Allen at the time of his trial of another murder of an elderly woman, Mrs. Hale, during the course of a burglary. Throughout all phases of Allens trial, trial counsel was concerned that the evidence of petitioners criminal history including several other felony convictions and juvenile record would reach the jury.
Appellants Appendix at 16 (emphasis in original).
There was evidence to support the post-conviction courts findings of fact. The record reflects that Allen was convicted of eight felonies, most of them burglaries or robberies. All of the victims were middle-aged or elderly women and Allen was convicted of voluntary manslaughter in the death of an 85-year-old woman. Allens lead trial counsel testified at a deposition that his main goal during the penalty phase was to keep the jury from learning about these crimes. He testified that he was especially worried about the voluntary manslaughter conviction, as the facts of that case resembled the murder of Griffin. See footnote Counsel therefore chose to avoid a detailed mitigation case and communicated this strategy to Allen, as is reflected by Allens statements at sentencing. Moreover, when asked about Allens previous voluntary manslaughter conviction, Allens expert on death penalty litigation testified that the thing to do would be to stay away from it and not open the door to such evidence.
Having found evidence to support the post-conviction findings of fact, we next determine
whether the post-conviction court could properly reach the conclusions it reached based on
dings. In making this determination, we will upset the conclusions of
the post-conviction court only if the evidence as a whole leads unerringly and
unmistakably to a conclusion opposite to that reached by the trial court. Weatherford
v. State, 619 N.E.2d 915, 917 (Ind. 1993), rehg denied. Because Allen
asserts that trial counsel should have offered three distinct types of evidence in
mitigation, we analyze the post-conviction courts conclusion in light of each form of
First, Allen contends that trial counsel was deficient for failing to present mitigation
evidence in the form of testimony from family and friends concerning the conditions
in which Allen grew up. The post-conviction court concluded that such evidence
would open the door to Allens criminal r
ecord and counsel did not pursue
this evidence on that ground. Appellants Appendix at 17. At the
time of Allens trial, a defendants criminal history was generally inadmissible as character
evidence. However, [w]hen the accused offer[ed] evidence of her own character, she
open[ed] the door to the subject of her character for the trait placed
in issue. Berkley v. State, 501 N.E.2d 399, 400 (Ind. 1986). See
also Bond v. State, 273 Ind. 233, 403 N.E.2d 812 (1980). Therefore,
evidence of prior crimes became admissible when they were relevant to rebut a
trait of good character that the defendant placed into evidence. See Hauger
v. State, 273 Ind. 481, 483, 405 N.E.2d 526, 527 (1980). Cf.
Ashton v. Anderson, 258 Ind. 51, 279 N.E.2d 210, 212 (1972) (It is
well recognized that a witness may be required on cross examination to answer
as to prior convictions for the purpose of impeaching his credibility.).
While the evidence of Allens family history describes the difficult conditions of his
childhood, it also contains numerous positive references to Allens role as a protector
of the younger children in his neighborhood and family, his role as man
of the house, his tendency to take blame for others, and his practice
of stealing to feed his family. This testimony which was intertwined
with the negative aspects of Allens youth is a form of character
evidence that could open the door to Allens criminal history. Trial counsels
performance was not deficient for not presenting this evidence.
v. State, 683 N.E.2d 227, 234 (Ind. 1997) (Counsel is permitted to make
strategic judgments not to present certain types of mitigating evidence, including evidence of
defendants background.), cert. denied, 524 U.S. 906 (1998).
Second, we address whether the post-conviction court could conclude from its findings that counsel made a reasonable strategic decision not to introduce evidence of abuse that Allen suffered at IBS. The post-conviction court concluded that trial counsel made a strategic decision not to intr oduce this evidence because counsel believed it might open the door for the State to introduce evidence of his previous convictions. As we have previously discussed, it was well-settled at the time of Allens trial that evidence of previous convictions was inadmissible before the jury unless Allen opened the door to them. See Hauger, 273 Ind. at 483, 405 N.E.2d at 527. Had Allen placed his experiences at IBS into evidence, he could have placed his entire criminal history at issue. The IBS was a juvenile correctional facility. Faced with a record that showed that Allen had been incarcerated as a juvenile but that said nothing about incarceration as an adult, the jury could infer that Allen did not have an adult criminal history. The State might well seek to rebut any inference that Allens criminal conduct ended with the acts that led him to IBS. Because this evidence presented a risk that evidence of prior convictions would be introduced, it was reasonable for counsel to avoid evidence concerning abuse at IBS.
Finally, Allen presented post-conviction testimony from three mental health professionals a social
worker, a neuropsychologist, and a forensic psychologist. Because of their different profe
qualifications, these experts presented three distinct perspectives on Allens mental condition. Therefore,
we review the testimony of each expert individually in light of the post-conviction
courts conclusion that counsel made a reasonable decision to avoid such testimony.
First, social worker Marjorie Hammock presented a detailed social history of Allen.
Prior to testifying, Hammock interviewed Allens friends and family to get a complete
picture of his develo
pmental history. After discussing Allen with numerous people, she
concluded that his environment compromised his ability to develop appropriately. (R.P-C.R. at 2257.)
While this conclusion might have been helpful to Allen, Hammock only reached
this point in her testimony after sifting through much of the same family
history evidence that was discussed supra. As we have already noted, counsel
acted reasonably in withholding such details of Allens family history for fear that
the jury would learn about Allens criminal history.
Second, Allen presented the testimony of Dr. Robert Heilbronner, a neuropsychologist. After
performing a number of tests, Dr. Heilbronner concluded that Allen had certain mental
conditions that affected his actions. First, he testified that Allen possessed several
brain dysfunctions that could limit his ability to control his behavior. These
dysfunctions impaired Allens capacity to organize [his] behavior, to plan ahead, to think
abstractly, to anticipate the consequences of [his] actions. (R.P-C.R. at 2325.) Second,
he testified that Allen had a severe learning disability. He then specifically
compared this diagnosis to mental retardation.
The post-conviction court was incorrect when it concluded that this evidence could have opened the door to Allens criminal history. There is no nexus between Allens mental health status and his criminal history. To say that this evidence would open the door to evidence of prior convictions would improperly allow a jury to learn the details of a defendants criminal history every time a defendant introduced a mental health diagnosis as mitigation evidence. Cf. Roth v. State, 550 N.E.2d 104, 106 (Ind. Ct. App. 1990) (holding that defendants testimony that he was not a crazy person and that he had never been treated for a mental illness did not open the door to his criminal history), transfer denied.
Despite the post-conviction courts erroneous conclusion, Allen is not entitled to relief because he has not demonstrated that counsels failure to present evidence of these mental conditions was constitutional error. First, Allens briefs make only a passing reference to his brain dysfunctions, Appellants Br. at 78-79, and he does not present a cogent claim that counsel was ineffective for failing to present this evidence. See Ind. Appellate Rule 8.3(A)(7). Second, Dr. Heilbronner testified that Allen suffered from a severe learning disability that was similar to mental retardation. See generally Appellants Br. at 79 (The symptomatology of Allens disorders mimics in some respects mental retardation.). However, we held on direct appeal that the trial judge considered to our satisfaction any evidence of mental retardation and this determination acts as res judicata to Allens post-conviction re-characterization of this claim as a learning disability. See Allen, 686 N.E.2d at 788-90. See footnote
Finally, Dr. Mark Cunningham, a forensic psychologist, testified that Allen is a low risk for committing a violent act so long as he is incarcerated. See footnote Dr. Cunningham analyzed a variety factors to determine the statistical risk that Allen would commit a violent act if incarcerated. He testified that if he had been called at Allen s trial, he would have relied in part on Allens previous behavior while incarcerated. Therefore, any testimony regarding Allens dangerousness in prison would have exposed his convictions to the jury and the post-conviction court was correct to conclude that counsel made a reasonable strategic decision in regards to this testimony.
As a final matter, Allen argues that even if trial counsel made strategic choices not to present this evidence, counsel did not make sufficient investigation to support these strategic choices. Appellants Br. at 80. In so arguing, Allen relies on Williams v. Taylor, a case in which the United States Supreme Court overturned a death sentence in part because of counsels failure to investigate potential mitigation evidence. 529 U.S. 362, 395 (2000). The Williams Court found counsel ineffective because [t]hey failed to conduct an investigation that would have uncovered extensive records graphically describing Williams nightmarish childhood, not because of any strategic calculation but because they incorrectly thought that state law barred access to such records. Id. The present case is distinguishable, however, in that the record shows that counsel had a working knowledge of some of the mitigation evidence that Allen asserts on post-conviction review but made a strategic decision not to present it. Allens counsel called several witnesses at the sentencing hearing, and this testimony demonstrates that counsel had researched Allens background and childhood. Moreover, counsel knew that Allen was incarcerated at IBS because it was reflected on a pre-sentence report. See footnote It was counsels role to balance the value of this evidence with the damage that the prior convictions would inflict. In light of the adverse effect that evidence of similar crimes against similar victims could have on a jury, counsel acted reasonably in striking a cautious balance towards Allens criminal history. See footnote
Having concluded that Allen could not prevail on his claims of ineffective assistance of trial counsel, we conclude that the post-conviction court could reject Allens claim of ineffective assistance of appellate counsel.
Allen claims that this procedure: (1) violated Clemons v. Mississippi, 494 U.S. 738
(1990), which governs how appellate courts may treat a death sentence after determining
that the sentencing court relied on an impermissible aggravating circumstance; (2) shifted the
burden of proof at sentencing from the State to Allen; (3) deprived him
of the right to be present during sentencing; (4) denied him his statutory
right to allocution; (5) denied him the opportunity to present evidence at an
adversarial hearing on sentencing; (6) violated his right to notice of sentencing; and
(7) deprived him of due process of law under the federal constitution. Appellants
Br. at 19-29.
Issues available on direct appeal may not be raised during post-conviction review. See
Ben-Yisrayl v. State, 729 N.E.2d 102, 108 n.1 (Ind. 2000) (citing Rouster v.
State, 705 N.E.2d 999, 1003 (Ind. 1999), rehg denied), rehg denied. Allen
has waived these freestanding claims of error in regards to the remand order
for failing to raise them on direct appeal.
However, Allen also argues that his direct appeal counsel was ineffective or abandoned him in regards to the remand proceeding. Appellants Br. at 29. The post-conviction court concluded Allen was not prejudiced by counsels efforts during the remand. Appellants Appendix at 15.
Allen does not claim that he suffered any prejudice during the remand that
is independent of his general claims of ineffective assistance of counsel in regards
See Part III-D supra. That is, Allen does not cite
any evidence that his counsel should have attempted to introduce during the remand
that he does not also argue should have been introduced during the penalty
Because we held that Allen suffered no prejudice from his counsels
efforts at the penalty phase,
we similarly hold that he suffered no prejudice
in the context of the remand.
First, Allen argues that the trial court deprived him of his right to
counsel by not appointing his chosen counsel as the public defender in the
Appellants Br. at 52. As we previously stated, such freestanding
claims of trial court error are unavailable on post-conviction review. See Benefiel
v. State, 716 N.E.2d 906, 911 (Ind. 1999), cert. denied, 121 S. Ct.
83 (2000), Lowery v. State, 640 N.E.2d 1031, 1037 (Ind. 1994), cert. denied,
516 U.S. 992 (1995). He also contends that the prosecutor put on
perjured testimony and relied on it during closing argument. Appellants Br. at 49.
Specifically, an officer testified at trial that Allen never asked why he
was being questioned. However, the officer stated in a pre-trial deposition that
Allen did in fact ask why he was being questioned. This freestanding
claim of error may not be raised on post-conviction review.
Second, issues decided on direct appeal may not be collaterally attacked on post-conviction review. See Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), State v. Holmes, 728 N.E.2d 164, 168 (Ind. 2000), cert. denied, 121 S.Ct. 2220 (2001). Two issues Allen raises are barred by res judicata. First, he argues that his constitutional rights were violated by the length of time it took to resolve his direct appeal issues. Appellants Br. at 43. However, our opinion on direct appeal concluded that Allen has not been denied due process by the length of time his appeal has taken. Allen, 686 N.E.2d at 785. While the time lag between the trial courts sentencing and the conclusion of Allens direct appeal was unfortunate and largely not Allens fault, we have already determined that the delay did not warrant a new trial or a reduced sentence. Id. See footnote Second, he contends that the prosec utor committed misconduct by putting on purportedly false testimony and relying on it in closing argument. Specifically, he argues that two officers lied on the stand when they said that they had not provided details of the murder before Allen began to discuss it. Appellants Br. at 50. However, we decided this precise issue adversely to Allen on direct appeal. Allen, 686 N.E.2d at 775.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
Footnote: Put in its simplest terms, Ben-Yisrayl stands for the proposition that direct appeal counsel are not ineffective in their handling of issues of trial counsels performance if there was no issue to raise in the first place.
Footnote: The evidence most probative to counsels trial strategy was contained in Allens statements to the police. We noted on direct appeal that Allens statements were the source of counsels arg ument imploring the jury to consider convicting him on just the lesser included charge of voluntary manslaughter. If this strategy had succeeded, it would have spared Allen the death sentence. Allen, 686 N.E.2d at 778.
Footnote: Cf. People v. Mitchell, 727 N.E.2d 254, 344-45 (Ill.) (Defendant tries to revive the Miranda argument by relying on post-conviction affidavits that he believes help to establish that he would have been unable to make a knowing, voluntary, and intelligent waiver of his Miranda rights. Just as we held on direct appeal, however, the Miranda issue is irrelevant given our determination that any error in the admission of defendants confession was harmless.), cert. denied, 121 S. Ct. 388 (2000).
Footnote: We dealt with a slightly different claim of perjured testimony on direct appeal. See Allen, 686 N.E.2d at 775.
Footnote: Allen also argues that counsel was ineffective in making this decision, but, as we hold infra, he has waived this claim.
Footnote: Allen very briefly mentions the first two of these issues in his petition. He makes a brief re ference to the third of these issues which was not mentioned at all in the petition in his proposed findings of fact and conclusions of law. The first two issues are not mentioned in those proposed findings and conclusions.
Footnote: Allens family members testified that his mother drank heavily on the weekends, and would occasionally not come home for several days during these spells. They testified that they would sometimes stand outside the tavern where she drank and implore adults entering the tavern to get money from her so that they could eat. They also testified that she drank only occasionally during the week and seldom drank in front of the chi ldren. Allens mother testified during Allens sentencing hearing, but died prior to the post-conviction hearing.
Footnote: The conditions at the Indiana Boys School during the late 1960s and early 1970s are documented in Nelson v. Heyne, 355 F. Supp. 451 (N.D. Ind. 1972), which placed limits on the punishments Allens evidence describes.
Footnote: These forms of corporal punishment were administered to the childrens bare buttocks while they bent over. IBS officials meted out these strappings and paddlings in front of large groups of chi ldren.
Footnote: Two of the former IBS detainees testified that they saw IBS officials inflict such punis hments on Allen on at least two occasions.
Footnote: Trial counsel also testified that the prosecutors made it clear to him that they would attempt to introduce Allens criminal history if any opening presented itself.
Footnote: Counsels strategy here resembles Timberlake v. State, 690 N.E.2d 243, 261 (Ind. 1997), cert. denied, 525 U.S. 1073 (1999) in that counsel minimized the amount of evidence presented during the penalty phase because of an external factor but made a plea for mercy on his clients behalf. In Timberlake, we held that
After an investigation into potentially mitigating evidence, a defense counsel may decide that it would be better for his client not to argue, as mitigation evidence, defendants background history such as a history of drug abuse and a bad family life. Instead, defense counsel may determine that the better strategy would be to attack the morality and effectiveness of the death penalty itself and inform the jury that, if sentenced to a term of years, the defendant would likely spend the remainder of his life in prison.
Id. (citations omitted).
Footnote: Allen argues that while counsel might have reasonably decided not to run this risk in front of the jury, he should have called these witnesses at the sentencing hearing before the judge because the evidence of the prior conviction would be contained in the pre-sentence investigation report that the judge would read. See Appellants Br. at 84-85. However, counsel called several witnesses during the sentencing hearing, including Allens mother, sister and uncle. These witnesses testified to Allens difficult childhood, including that Allen grew up in a poor, fatherless home in which he acted as a protector and that he sometimes stole so that the family would have food. Therefore counsel employed just the strategy that Allen suggests here he avoided opening the door to the evidence of prior convictions while the case was in front of the jury, but presented mitigation evidence to the judge when that threat had passed.
Footnote: Allen contends that the claim of mental retardation was a misdiagnosis of his severe learning disability. Appellants Reply Br. at 8. This claim is barred because similar evidence of Allens struggles with learning was presented in the affidavits that were considered on remand and on direct appeal. These affidavits included discussion from school officials as to whether Allen should have been placed in special education. The affidavits also refer to tests of Allens general intellectual functioning and document his poor reading skills and low intelligence quotient. In light of this evidence, which was considered on remand and on direct appeal, Allen has already litigated this claim.
Footnote: Dr. Heilbronner also testified that Allens impairments would not prevent him from functioning well in prison. (R.P-C.R. at 2337.)
Footnote: It appears from the record that whatever investigation trial counsel conducted did not i nclude mental health professionals. However, Allen has not demonstrated constitutional error in counsels failure to consult the type of the witnesses he offered on post-conviction review. First, trial counsel testified at a post-conviction deposition that at the time of Allens trial, attorneys rarely consulted neuropsychologists such as Dr. Heilbronner. As for the other mental health experts, one social worker Hammock testified to Allens family history to which counsel was already exposed, while the other forensic psychologist Cunningham offered evidence that would have opened the door to prior convictions while offering little to Allens mitigation case. Moreover, the judge had before him a pre-sentence investigation report that detailed Allens criminal history, but reported no violent acts while in prison. The judge also received a series of letters in support of Allen, all of which stated that Allen did not have a violent nature.
Allen also contends that his death sentence is unreliable because of counsels failure to introduce this mitigation evidence. Appellants Br. at 41-43. Having found no constitutional error in counsels failure to introduce such evidence, we similarly reject his claim that the death sentence was unreliable on these grounds.
Footnote: We remanded Allens direct appeal after it became apparent that the record of proceedings in this case [did] not contain a written sentencing order, which is a violation of Indianas death penalty sentencing procedure. Allen, 686 N.E.2d at 788 n.32. Our opinion on direct appeal contains a detailed reproduction of the remand order. Id.
Footnote: The fact that Allen has waived these claims is reinforced by our rejection of his petition for rehearing during his direct appeal. Our direct appeal opinion addressed several issues in regards to the remand. See Allen, 686 N.E.2d at 787-90. In his petition for rehearing, Allen raised several more issues, including many of the claims he asserts here. We rejected Allens claims on rehearing and repeat that rejection here.
Footnote: Specifically, Allen argues that counsel should have introduced evidence that he
suffered from mental health impairments which significantly restricted his ability to control his impulses rather than being mentally retarded. Additionally, there was ev idence post-trial that Allen responded very well to incarceration. There was a wealth of evidence available to support mitigation circumstances and rebut the States evidence of intent to commit murder.
Appellants Br. at 31. Allen cross-references the prejudice he asserts here with his claims of ineffective assistance of counsel during the penalty phase. See id. (citing Appellants Br. at 70-87.)
Footnote: Allen suggests that he was completely deprived of counsel on consideration of the belated motion to correct errors and on remand and therefore we should presume that he suffered prejudice. See Appellants Br. at 30 (citing Penson v. Ohio, 488 U.S. 75, 88 (1988) (presuming prejudice because the denial of counsel in this case left petitioner completely without representation during the appellate courts actual decisional process.). However, Allens appellate counsel chose to file the affidavits referred to in the order and then challenged the remand process on appeal. This course of action reflects a conscious decision-making process by counsel, which should be analyzed under the general standard of Strickland and not cases (such as Penson) where prejudice is presumed because counsel is completely absent from an appeal. See Penson, 488 U.S. at 88; see also Strickland, 466 U.S. at 692 (Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.) (emphasis added).
Footnote: As a related matter, Allen argues that our denial of his belated motion to correct errors interfered with counsel and rendered his performance ineffective because he did not have an opportunity to develop a record. Appellants Br. at 38-39. Similarly, he argues that counsel was rendered ineffective by the limited scope of the remand order and its tight deadline. Id. at 40-41. Allen again fails to assert that counsel would have presented any evidence during the belated motion to correct errors or the remand that he did not also argue should have been presented at the penalty phase. Having already determined that Allen could not demonstrate constitutional error in counsels choice not to investigate and present such evidence at the penalty phase, we conclude that he has not shown error here.
Footnote: Allen initially hired private counsel, who subsequently withdrew because Allen was not able to afford his fees. The court appointed two other attorneys to serve as trial counsel.
Footnote: We addressed this claim in terms of ineffective assistance of counsel supra.
Footnote: This post-conviction appeal follows Allens direct appeal by roughly three and a half years, which is not out of the ordinary in death penalty cases. See, e.g., State v. Holmes, 728 N.E.2d 164 (Ind. 2000) (four-year delay between appeals), cert. denied, 121 S.Ct. 2220 (2001); Williams v. State, 724 N.E.2d 1070, (Ind. 2000) (three-and-one-half year delay between appeals), cert. denied, 121 S.Ct. 886 (2001); Miller v. State, 702 N.E.2d 1053 (Ind. 1998) (slightly more than five year delay between appeals), cert. denied, 528 U.S. 1083 (2000).