CRONE, Judge.
Freddie L. McKnight, III, pro se, appeals the denial of his petition for post-conviction relief. On appeal, McKnight contends that the post-conviction court erred when it concluded that he was not denied the effective assistance of trial and appellate counsel. He also claims that he was denied a procedurally fair post-conviction hearing because his appointed public defender withdrew his appearance prior to the hearing and McKnight proceeded pro se. In addition, McKnight alleges that he is entitled to a new trial because the State withheld favorable evidence in violation of his due process rights. Finding that the post-conviction court did not clearly err when it denied McKnight's petition, we affirm.
The relevant facts indicate that on May 31, 2006, "a cooperating source working with Officer Shawn Turner of the Elkhart County Interdiction and Covert Enforcement Unit purchased 8.709 grams of cocaine freebase or crack from McKnight." McKnight v. State, No. 20A05-0708-CR-469, slip op. at 1, 2008 WL 383689 (Ind.Ct. App. Feb. 14, 2008), trans. denied. Specifically, under the direction of Officer Turner, cooperating source Mickie Rhymer called McKnight and arranged to buy a quarter ounce or "quad" of cocaine from McKnight. Trial Tr. at 90. Officers searched Rhymer, gave her $500 of photocopied cash to cover the drug purchase and a debt owed by Rhymer to McKnight, and wired her with a recording device. Rhymer and an undercover officer traveled to a residence in Rhymer's vehicle. Rhymer entered the kitchen of the residence, where she saw McKnight and scales with a bag of cocaine on it. Rhymer spoke with McKnight, and he indicated that he was giving her a little "extra" cocaine. Id. at 97. Rhymer gave McKnight $500 in cash, and he gave her the bag later found to contain over eight grams of cocaine. Rhymer left the residence, was again searched by officers, and was found to only have the cocaine that she purchased from McKnight. As a result, the State charged McKnight with class A felony dealing in cocaine weighing three grams or more. Following a trial held on November 13 and 14, 2006, a jury found McKnight guilty as charged. The trial court imposed a sentence of forty-eight years. On direct appeal,
McKnight subsequently filed a pro se petition for post-conviction relief. The State answered, and on July 15, 2010, the post-conviction court held an evidentiary hearing. The hearing was continued to February 24, 2011. Before that hearing, McKnight filed a first and a second amended petition for post-conviction relief. Evidentiary hearings were again held on February 24 and 25 and March 10, 2011. On May 18, 2011, the post-conviction court issued its findings of fact, conclusions of law, and judgment denying post-conviction relief.
Thereafter, on June 17, 2011, McKnight delivered a pro se motion to correct error to prison officials for mailing to the Elkhart Circuit Court. The motion to correct error was file-stamped by the clerk of the Elkhart Circuit Court when it was received on June 20, 2011. The post-conviction court later held a hearing on the motion to correct error. At the outset of the hearing, the post-conviction court noted that McKnight's motion was untimely filed but proceeded with the hearing. The post-conviction court entered its order denying the motion to correct error on August 29, 2011. McKnight delivered a pro se notice of appeal to prison officials for mailing on September 28, 2011. That notice was deemed filed by this Court on September 30, 2011.
Several months later, after numerous defective filings and McKnight's failure to timely file an appellant's brief, on May 21, 2012, this Court dismissed the appeal with prejudice pursuant to Indiana Appellate Rule 45(D). However, on June 4, 2012, our motions panel granted McKnight's motion to file a belated brief and reinstated the appeal. Following numerous additional filings and extensions of time granted to both parties by this Court, the appeal became ready for our review.
We note that, in addition to responding to the arguments raised by McKnight in his appellant's brief,
The appellate standard of review regarding post-conviction proceedings is well settled. Recently, in Wilkes v. State, 984 N.E.2d 1236 (Ind.2013), our supreme court reiterated,
Id. at 1240 (citations and quotation marks omitted). We will not reweigh the evidence or judge the credibility of witnesses, and will consider only the probative evidence and reasonable inferences flowing therefrom that support the post-conviction court's decision. Graham v. State, 941 N.E.2d 1091, 1096 (Ind.Ct.App.2011), aff'd on reh'g, 947 N.E.2d 962.
McKnight argues that the post-conviction court erred in finding that he was not denied the effective assistance of trial or appellate counsel. We review claims of ineffective assistance of counsel under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Bieghler v. State, 690 N.E.2d 188, 192 (Ind.1997), cert. denied (1998). To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his counsel's performance was deficient and that the petitioner was prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052), cert. denied (2001). A counsel's performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind.2002). To establish prejudice, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. Isolated poor strategy, inexperience, or bad tactics does not necessarily constitute ineffective assistance. Clark v. State, 668 N.E.2d 1206, 1211 (Ind.1996), cert. denied (1997). When considering a claim of ineffective assistance of counsel, we strongly presume "that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Morgan v. State, 755 N.E.2d 1070, 1073 (Ind.2001). "[C]ounsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption." Williams v. State, 771 N.E.2d 70, 73 (Ind.2002).
We must initially acknowledge that the judge who presided over McKnight's original trial is also the judge who presided over the post-conviction proceedings. This Court has stated that a post-conviction court's findings and judgment should be entitled to "greater than usual deference" when the post-conviction judge is the same judge who conducted the original trial. See McCullough v. State, 973 N.E.2d 62, 75 (Ind.Ct.App.2012), trans. denied (2013). In such a case, the judge is uniquely situated to assess whether trial counsel's performance fell below an objective standard of reasonableness and whether, but for counsel's unprofessional conduct, there was a reasonable probability that a different verdict would have been reached. Id. (citing State v. Dye, 784 N.E.2d 469, 476 (Ind.2003) (noting that because judge presided both at original trial and post-conviction hearing, judge was in "an exceptional position" to assess weight and credibility of factual evidence and whether defendant was deprived of fair trial)). With this in mind, we turn to McKnight's claims of ineffective assistance.
McKnight first asserts that his trial counsel provided ineffective assistance in failing to properly investigate and then to cross-examine the State's main witness, Rhymer. Specifically, McKnight contends that had counsel properly investigated Rhymer, counsel would have discovered and cross-examined Rhymer regarding any benefit the State may have given Rhymer in exchange for her testimony, her impeachable criminal history, her alleged mental health problems, and her alleged drug problems. While it is undisputed that effective representation requires adequate pretrial investigation and preparation, it is well settled that we should resist judging an attorney's performance with the benefit of hindsight. Badelle v. State, 754 N.E.2d 510, 538 (Ind.
Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052.
In addition, establishing failure to investigate as a ground for ineffective assistance of counsel requires going beyond the trial record to show what investigation, if undertaken, would have produced. Woods v. State, 701 N.E.2d 1208, 1214 (Ind.1998), cert. denied (1999). "This is necessary because success on the prejudice prong of an ineffectiveness claim requires a showing of a reasonable probability of affecting the result." Id.
McKnight has failed to establish that his trial counsel's pretrial investigation of Rhymer and the resulting cross-examination fell below an objective standard of reasonableness. At the post-conviction hearing, trial counsel testified that he knew some information about cooperating source Rhymer because McKnight had informed counsel that she had been working as his drug courier or "mule" for him prior to the controlled buy and that McKnight and Rhymer had a sexual relationship. PCR Tr. at 139, 206. Counsel subpoenaed Rhymer for a deposition in order to question her regarding all areas of possible impeachment. The Friday before the scheduled trial date, Rhymer was present in the courthouse with a court reporter and was ready for the deposition. However, prior to the deposition starting, McKnight agreed to plead guilty to the instant charges as well as another outstanding charge in exchange for the dismissal of three additional pending charges. McKnight signed the plea agreement, and Rhymer's deposition was canceled. Because the judge was not present on that date to conduct a plea hearing, the parties agreed to submit the agreement to the court on the morning of the scheduled trial, the following Monday. The morning of trial, however, McKnight changed his mind and decided that he no longer wished to plead guilty. Although counsel made an oral motion for a continuance of trial, the motion was denied by the trial court and the trial proceeded as scheduled.
Under the circumstances, we agree with the post-conviction court that McKnight's argument that counsel performed deficiently in failing to conduct an adequate pretrial investigation and resulting cross-examination of Rhymer rings hollow in light of his decision to plead guilty, which obviated counsel's need to obtain the alleged impeachment information. The record reveals that counsel attempted to conduct a reasonable investigation, and it was only after McKnight decided to plead guilty that counsel determined that further investigation was unnecessary. As the post-conviction court pointedly asked McKnight, "How is it that your counsel was ineffective in that regard because he canceled the deposition which would have revealed the information because you signed a plea agreement?" Id. at 248. A party may not invite error on the part of counsel and then later argue that the error supports an ineffective assistance claim, because error invited by the complaining
Moreover, McKnight has similarly not established that he suffered prejudice such that the outcome of the proceeding would have been different. As to Rhymer's motivation for testifying against McKnight, the evidence indicates that trial counsel "was fully aware that [Rhymer] had pending charges against her, and had made a deal with the State in exchange for her cooperation such that she had something to gain by testifying against [McKnight.]" Appellant's App. at 197. Contrary to McKnight's claims, the record reveals that counsel indeed cross-examined Rhymer in this regard. Trial Tr. at 104-05. Regarding counsel's failure to discover and cross-examine Rhymer about her criminal history, as we will discuss more fully below, McKnight has not demonstrated that the impeaching value of Rhymer's minor and remote criminal history was such that he was prejudiced by such failure.
The remainder of McKnight's claims as to what information further investigation of Rhymer would have uncovered and the relevance of that information amounts to sheer speculation and innuendo. Accordingly, McKnight has not demonstrated a reasonable probability that the result of the proceeding would have been different.
McKnight next argues that trial counsel was ineffective for failing to object to: (1) the admission of State's Exhibit 3, the audio recording of the controlled buy, and (2) the accuracy of the scales used to weigh the cocaine. To demonstrate ineffective assistance of counsel for failure to object, a defendant must prove that an objection would have been sustained if made and that he was prejudiced by counsel's failure to make an objection. Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001), cert. denied (2002).
Regarding the admissibility of State's Exhibit 3, McKnight claims that counsel should have interposed an objection because the audio recording was only partially intelligible. Appellant's Br. at 43. However, for a tape recording to be properly admissible, "every word of a recording need not be intelligible. Rather, the tape recording, taken as a whole, must be of such clarity and completeness to preempt speculation in the minds of jurors as to its
Trial counsel testified that he believed that the audio recording was sufficiently intelligible that an objection, even if made, would not have been sustained by the trial court. He further explained, "If the jury thinks that you're objecting to something and they hear the objection then they think well, there's more there to hide." PCR Tr. at 184. Therefore, he determined that the best strategy was to let the recording come in and to use it to McKnight's advantage by arguing to the jury, as he did during closing arguments, that the recording did not really supply them with any useful information. "A decision to not object to evidence when the objection may be more damaging than the evidence is within the wide range of professionally competent assistance." Stevens v. State, 770 N.E.2d 739, 746-47 (Ind. 2002), cert. denied (2003).
As noted by the post-conviction court, McKnight himself conceded at the post-conviction hearing that the recording was sufficiently intelligible for him to identify the voices on the recording, including his own. Also, the content of the recording was merely cumulative of Officer Turner's and Rhymer's direct testimony. Under the circumstances, McKnight has failed to demonstrate that an objection would have been sustained or that counsel's decision to not object to the admission of State's Exhibit 3 was unreasonable. The post-conviction court did not err when it determined that counsel's failure to object to the admission of the exhibit did not constitute ineffective assistance.
Regarding counsel's failure to lodge a specific objection challenging the accuracy of the scales used to measure the weight of the cocaine, McKnight has similarly failed to demonstrate that a proper objection would have been sustained or that he suffered prejudice as a result of counsel's failure to lodge such objection. Wanda Sheppler, the chemist who analyzed the cocaine, testified that the laboratory scales she used to weigh the cocaine are "periodically" calibrated by running "the Spiro standard weight and measure units through the balance." Trial Tr. at 143. Sheppler further testified that the scales are extremely accurate and that the accuracy of the weights obtained using the scales had never varied by more than a millionth of a gram. Id. at 143-44.
We agree with McKnight that the State bears the burden to show that the scale used to measure the weight of the cocaine was properly calibrated. Turner v. State, 878 N.E.2d 286, 294 (Ind.Ct.App.2007), trans. denied (2008). However, contrary to McKnight's implication, the State was not required to prove exact dates or that the scale was checked immediately before and after the cocaine here was weighed. See Smith v. State, 829 N.E.2d 64, 77 (Ind.Ct.App.2005) (State not required to prove scale was checked immediately before and after each use). Indeed, the scale's accuracy is foundational evidence, not an element of the crime. Guadian v. State, 743 N.E.2d 1251, 1255 (Ind.Ct.App. 2001), trans. denied. Although the defense may rebut the State's evidence regarding accuracy, the question of accuracy is ultimately a question for the trier of fact. Smith, 829 N.E.2d at 77. Thus, an objection to the accuracy of the scales would have gone to the weight of the evidence, not to its admissibility. See id. In
Significantly, upon cross-examination of Sheppler, McKnight's counsel questioned her extensively regarding the lack of evidence of the exact calibration dates for the scales used to weigh the cocaine. Trial Tr. at 145-46. Again, during closing arguments, counsel highlighted the lack of evidence of the calibration dates. Id. at 209. Thus, trial counsel made the precise argument that McKnight claims the jury needed to hear in order to make the ultimate determination of accuracy. Accordingly, McKnight cannot show that he was prejudiced by counsel's failure to make a foundational objection.
We further note that the actual weight of the cocaine was important because the State was required to prove that McKnight delivered cocaine weighing three grams or more in order to convict him of a class A felony. See Ind.Code § 35-48-4-1. McKnight makes no argument that there is a reasonable possibility that the scale used here to weigh the cocaine was so inaccurate that it measured less than three grams of cocaine as weighing over eight grams.
We next address McKnight's claim that the post-conviction court clearly erred when it determined that he was not denied the effective assistance of appellate counsel. The standard for gauging appellate counsel's performance is the same as that for trial counsel. Ward v. State, 969 N.E.2d 46, 75 (Ind.2012). "Ineffective assistance of appellate counsel claims generally fall into three basic categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well." Reed v. State, 856 N.E.2d 1189, 1195 (Ind.2006). Judicial scrutiny is highly deferential regarding a claim that counsel was ineffective in failing to raise an issue on appeal thus resulting in waiver for collateral review, and the defendant must overcome the strongest presumption of adequate assistance. Id. We rarely find ineffective assistance in cases where a defendant asserts that appellate counsel failed to raise an issue on direct appeal. Id. at 1196. "One reason for this is that the decision of what issues to raise is one of the most important strategic decisions to be made by appellate counsel." Id.
Similar to his arguments that trial counsel was ineffective for failing to object to the admissibility of the audio recording and the accuracy of the scales used to measure the weight of the cocaine, McKnight asserts that appellate counsel was ineffective for failing to raise the issue of the admissibility of that evidence on appeal. We reject his claims of appellate counsel ineffectiveness based on our above-stated conclusion that trial counsel was not ineffective on those same issues. See Ward v. State, 969 N.E.2d 46, 76 (Ind.2012) (rejecting appellate counsel ineffectiveness claim based on prior finding of no trial counsel ineffectiveness on
McKnight also asserts that he was deprived of a procedurally fair post-conviction hearing because his appointed post-conviction counsel withdrew prior to the evidentiary hearing and he was "forced" to proceed pro se. Appellant's Br. at 6. McKnight concedes that there is no constitutional right to counsel in post-conviction proceedings under either the federal or the state constitution. Hill v. State, 960 N.E.2d 141, 145 (Ind.2012). Moreover, Indiana Post-Conviction Rule 1(9) gives the State Public Defender discretion in selecting the cases it will pursue by specifically providing in relevant part as follows:
See Ford v. State, 570 N.E.2d 84, 87 n. 1 (Ind.Ct.App.1991) (holding that inmate petitioners do not have the right to continued representation if, after review and investigation, the State Public Defender finds the proceeding is not meritorious and in the interests of justice), trans. denied (1992).
Here, the record reveals that after filing his first pro-se petition for post-conviction relief, McKnight requested the appointment of counsel, and the post-conviction court appointed the State Public Defender. Deputy Public Defender Kevin Hewlate entered an appearance on McKnight's behalf, and the court subsequently held a status conference and set an evidentiary hearing date. Four months prior to the hearing date, Hewlate filed a motion to withdraw his appearance and certification pursuant to Post-Conviction Rule 1(9)(c), which the trial court granted. McKnight then retained the right to employ his own
McKnight makes no claim that the post-conviction court or his post-conviction counsel failed to comply with the procedures mandated by the rules. Rather, he simply urges that he should be granted a new post-conviction hearing with another appointed attorney. Given that the right to counsel in a post-conviction proceeding is not guaranteed and that he was represented by appointed counsel until counsel properly withdrew as provided by our post-conviction rules, McKnight has stated no viable claim of error.
As a final matter, McKnight argues that he is entitled to post-conviction relief because the State withheld impeaching information regarding the fact that Rhymer had a prior conviction for theft in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). At the post-conviction hearing, Rhymer testified that she had been convicted of theft in 1996, ten years before McKnight sold her cocaine.
State v. Hollin, 970 N.E.2d 147, 153 (Ind. 2012) (citations and internal quotation marks omitted). "A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682, 105 S.Ct. 3375.
Here, neither of the two deputy prosecutors who testified during the post-conviction proceedings could recall anything about Rhymer's criminal history. They stated that it was their practice, however, to disclose impeachable offenses and that they provided twenty-three pages of requested discovery to McKnight's trial counsel. Trial counsel testified that he had no information regarding Rhymer's criminal history in his file but that he had never had a problem with the State withholding criminal history information regarding cooperating sources. Counsel stated that he believed he would have likely obtained that information at Rhymer's
Even assuming, as McKnight argues, that the State failed to disclose Rhymer's criminal history to trial counsel, to prevail on a Brady claim, a petitioner must demonstrate that the evidence in question was material to an issue at trial such that there is a reasonable probability that the outcome of the trial would have been different had the evidence been disclosed to the defense. See id. Upon review, in light of all of the evidence presented at trial, the impeaching value of Rhymer's ten-year-old theft conviction was negligible, at best. See Carroll v. State, 740 N.E.2d 1225, 1230 (Ind.Ct.App.2000) (impeaching value of six-year-old misdemeanor conviction for false informing was negligible in light of all the evidence presented), trans. denied (2001); see also Reid v. State, 984 N.E.2d 1264, 1271-72 (Ind.Ct.App.2013) (impeaching value of twenty-four-year-old robbery conviction was negligible in light of independent evidence of guilt), trans. denied. Here, the jury was not exposed to someone portrayed as "a highly credible witness or an otherwise upstanding citizen." See Carroll, 740 N.E.2d at 1230. On cross-examination, Rhymer admitted that she was serving as a cooperating source with police and participated in the controlled buy because she was "in trouble" and was trying to avoid possible criminal charges that would be brought against her. Trial Tr. at 104-05.
In addition to Rhymer's testimony, the State presented ample independent evidence of McKnight's guilt. The record demonstrates that Rhymer's testimony was cumulative of the testimony of several undercover officers as well as the audio recording of the controlled buy. Under the circumstances, McKnight has not demonstrated a reasonable probability that the outcome of his trial would have been different had trial counsel known about the theft conviction and attempted to impeach Rhymer with questions about that remote conviction. Accordingly, his Brady claim fails. In sum, McKnight has failed to convince us "that there is no way within the law that the court below could have reached the decision it did." Wilkes, 984 N.E.2d at 1236. The post-conviction court's denial of McKnight's petition for post-conviction relief is affirmed.
Affirmed.
BAKER, J., and NAJAM, J., concur.
In Dowell, our supreme court recognized application of the "prison mailbox rule" to the filing of a notice of appeal and documents under our appellate rules, stating that a pro se prisoner need only provide reasonable, legitimate, and verifiable documentation supporting a claim that a document was timely submitted to prison officials for mailing. Dowell, 922 N.E.2d at 608. The court emphasized, however, that the timing for motions to correct error is different than for notices of appeal and that, if independently verifiable means like registered mail or third-party carrier are not used, filing of a motion to correct error occurs on the date the filing is in the hands of the clerk. Id. at 609. Similar to the prisoner in Dowell, McKnight delivered his motion to correct error to prison officials for mailing on the last possible day, and he paid for the use of only regular mail rather than certified mail return receipt requested or third-party commercial carrier. McKnight's untimely filing of his motion to correct error has resulted in the failure to preserve his right to appeal. Because our supreme court's order directs us that our jurisdiction has been invoked, we must presume that the court has extended application of the prison mailbox rule to the filing of motions to correct error and to regular mail. We therefore address McKnight's claims on the merits.
