APPELLANT PRO SE
: ATTORNEYS FOR APPELLEE:
LARRY L. CRAIG STEVE CARTER
Pendleton, Indiana Attorney General of Indiana
ZACHARY J. STOCK
Deputy Attorney General
COURT OF APPEALS OF INDIANA
LARRY L. CRAIG, )
vs. ) No. 49A02-0301-PC-45
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION, ROOM 2
The Honorable Robert R. Altice, Jr., Judge
The Honorable Amy Barnes, Master Commissioner
Cause No. 49G02-9103-PC-039906
March 2, 2004
OPINION - FOR PUBLICATION
Appellant, Larry Craig, challenges the post-conviction courts denial of his petition for post-conviction
relief. Upon appeal, Craig presents one issue for our review, whether the
post-conviction court erred in concluding that Craigs post-conviction claim of ineffective assistance of
trial counsel was barred by res judicata.
On March 27, 1991, Craig was charged with Murder. Following a jury
trial, Craig was convicted of the lesser-included offense of voluntary manslaughter, a Class
A felony, and thereafter sentenced to thirty years imprisonment. Upon direct appeal
of his conviction, Craigs sole argument was that his trial counsel was ineffective
for failing to object to the jury instruction defining the crime of voluntary
manslaughter. In an unpublished memorandum decision, a panel of this court agreed
that the instruction was an incorrect statement of the law but nevertheless rejected
Craigs claim, concluding that Craig had failed to establish prejudice from his trial
counsels performance. Craig v. State, 49A02-9305-CR-207, slip op. at 4 (Ind. Ct.
App. Aug, 29, 1994). The court thus affirmed Craigs conviction and sentence.
On November 15, 1994, Craig filed a pro se petition for post-conviction relief,
which was withdrawn without prejudice on September 21, 2001. On October 22,
2001, Craig filed another petition for post-conviction relief, asserting, among other things, four
new grounds of ineffective assistance of trial counsel. The post-conviction court held
a hearing on Craigs petition on September 18, 2002. On November 18,
2002, the post-conviction court entered its findings of fact and conclusions of law
denying Craigs petition for post-conviction relief. Regarding Craigs claim of ineffective assistance
of trial counsel, the post-conviction court concluded Craig was not entitled to review
of such claim because it was barred by res judicata.
Defendants who have exhausted the direct appeal process may challenge the correctness of
their convictions and sentence by filing a post-conviction petition. Ind. Post-Conviction Rule
1(1). Post-conviction proceedings, however, do not afford a petitioner with a super-appeal.
Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537
U.S. 839 (2002). Rather, post-conviction proceedings provide defendants the opportunity to present
issues which were not known at the time of the original trial or
that were not available upon direct appeal. Ben-Yisrayl v. State, 738 N.E.2d
253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164 (2002). As a
general rule, if an issue was known and available, but not presented upon
direct appeal, it is waived. Timberlake, 753 N.E.2d at 597. If
it was presented upon direct appeal, but decided adversely, it is res judicata.
The petitioner for post-conviction relief has the burden of establishing his grounds for
relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Timberlake,
753 N.E.2d at 597. Because he is now appealing from a negative
judgment, to the extent the appeal turns on factual issues, the petitioner must
convince this court that the evidence as a whole unmistakably and unerringly points
to a conclusion contrary to the post-conviction courts decision. Id.
Upon appeal, Craig contends that he was denied due process in violation of
the Fourteenth Amendment to the United States Constitution when the post-conviction court concluded
that his claim of ineffective assistance of trial counsel was barred by the
doctrine of res judicata. The law at the time of his direct
appeal and in subsequent years was that, if a claim of ineffective assistance
of trial counsel was known and available at the time of direct appeal,
it was required to be presented upon direct appeal or would be waived.
See Johnson v. State, 502 N.E.2d 90 (Ind. 1986); Moore v. State,
649 N.E.2d 686 (Ind. Ct. App. 1995) (noting that, as a general rule,
ineffective assistance of counsel is an issue known and available at the time
of direct appeal), trans. denied. When a defendant chose to present such
claim upon direct appeal, he was required to present all issues relating to
that claim. See Morris v. State, 466 N.E.2d 13, 14 (Ind. 1984).
Years after Craigs direct appeal, our Supreme Court, in Woods v. State, 701
N.E.2d 1208 (Ind. 1998), cert. denied 528 U.S. 861 (1999), resolved the issue
of waiver of ineffective assistance of trial counsel claims. In that case,
the Court recognized three forms of ineffective assistance of counsel claimsthose that can
be evaluated on the face of the trial record (record-based), those that are
not apparent from the record or require additional record development to assess the
claimed error, and those which are based upon the record, but whose evaluation
requires a showing to rebut the presumption of counsel competence. Id. at
1211-12. The Court recognized that with record-based claims, direct appeal may be
more appropriate because it permits more expeditious review of claims and fosters a
considerable social interest in the finality of criminal proceedings. Id. at 1219.
Regarding the second two forms of ineffectiveness claims, the Court noted that
additional record development is often necessary to evaluate such claims. The Court
recognized that further development of the record is generally not appropriate upon direct
appeal and may place an unfair burden upon appellate counsel. After considering
various alternatives, the Court concluded that post-conviction proceedings provided the best opportunity to
present certain ineffectiveness claims. Precisely because of the varying forms ineffective assistance
claims can take, the court concluded that ineffective assistance may be presented upon
direct appeal, but if it is not, it may be presented for the
first time in post-conviction proceedings irrespective of the nature of the issues claimed.
Id. at 1216.
The Court, however, also noted that a well-established general proposition of post-conviction review
is that issues which were presented on direct appeal are not available in
post-conviction proceedings. Id. at 1213. The Court further noted that relying
upon this rule, reviewing courts have repeatedly held that if a defendant presents
a claim of ineffectiveness upon direct appeal, he is foreclosed from subsequently relitigating
that claim, even if based upon different grounds. Id. at 1215.
See also Bieghler v. State, 690 N.E.2d 188 (Ind. 1997), cert. denied, 525
U.S. 1021 (1998); Sawyer v. State, 679 N.E.2d 1328 (Ind. 1997); Morris v.
State, 466 N.E.2d 13 (Ind. 1984).
Craig claims that at the time of his direct appeal, his appellate counsel
was faced with a Hobsons choice, that is, an apparently free choice where
there is no real alternative. Essentially, Craig claims that during his direct
appeal, the fear of forfeiture of his ineffectiveness claim resulted in his inability
to present other non-record-based claims which required further record development more appropriately presented
during post-conviction proceedings. Craig therefore urges this court to reconsider the rule
that res judicata acts as a complete bar to collateral review of ineffective
assistance claims where his claim upon direct appeal was reviewable based upon the
record and the claims he now wishes to present are better suited for
Upon his direct appeal, Craigs claim of ineffective assistance of counsel was based
upon his counsels failure to object to an instruction, an error which could
be evaluated from the face of the record. In his petition for
post-conviction relief, Craig argued, among other things, that his trial counsel was ineffective
because he (1) failed to object to a flight instruction, (2) failed to
request an instruction on the lesser-included offense of reckless homicide, (3) failed to
use available evidence to impeach the States witnesses and to support his claim
of self-defense, and (4) failed to adequately question the investigating detective about his
conversation with Craig.
In Ben-Yisrayl, supra, and McCary v. State, 761 N.E.2d 389 (Ind. 2002), rehg
denied, defendants sought to bring post-conviction claims of ineffective assistance of trial counsel.
In both cases, however, the defendants had already presented ineffectiveness claims upon
their direct appeals. Like the procedural posture of Craigs claim, the direct
appeals in both cases were brought prior to our Supreme Courts pronouncement in
Woods and their post-conviction petitions came after Woods was decided. Nevertheless, our
Supreme Court concluded in both Ben-Yisrayl and McCary that their post-conviction claims of
ineffective assistance of trial counsel were barred by res judicata. 738 N.E.2d
at 259-60; 761 N.E.2d at 392.
While we understand the predicament regarding ineffectiveness claims with which appellate counsel was
faced prior to Woods, the law has always been that claims which were
presented upon direct appeal are foreclosed from collateral review. Indeed, the Court
in Woods recognized such. Because Craig presented, and this court considered and
rejected, a claim of ineffective assistance of trial counsel upon Craigs direct appeal,
the doctrine of res judicata barred Craig from relitigating this issue in post-conviction
proceedings. We are bound by the holdings of our Supreme Court and
therefore we conclude that the post-conviction court did not err when it concluded
that he was not entitled to review of his post-conviction claim of ineffective
assistance of trial counsel.
The judgment of the post-conviction court is affirmed.
ROBB, J., and HOFFMAN, Sr.J., concur.
This rule was applicable only if the defendant was represented by
different counsel upon direct appeal. In the present case, Craig was represented
by different counsel upon direct appeal of his conviction.
Footnote: We note that the first two claims are record-based claims and
thus could have been evaluated based upon the trial record. The third
and fourth claims were not based upon the record and would likely have
necessitated further record development to have been successful.