ROBB, Judge.
Michelle Gauvin appeals the denial of her petition for post-conviction relief. She raises multiple issues for our review, which we consolidate and restate as:
Concluding there was an adequate factual basis for the guilty plea, the claim of structural error was an issue for direct appeal and not appropriate for post-conviction relief, and Gauvin was not denied effective assistance of counsel at trial or on direct appeal, we affirm.
The underlying facts of Gauvin's case were laid out in her direct appeal to the Indiana Supreme Court:
Gauvin then filed a petition for post-conviction relief, alleging there was an insufficient factual basis for her guilty plea, errors in sentencing rendered her sentence unsound, and she received ineffective assistance of counsel at both trial and on appeal. The post-conviction court denied her petition for post-conviction relief. Gauvin now appeals. Additional facts will be provided as necessary.
At the outset, we note that in a petition for post-conviction relief, the petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence.
A factual basis for a guilty plea "exists when there is evidence about the elements of the crime from which a court could reasonably conclude that the defendant is guilty."
At the plea hearing, Gauvin's counsel questioned her to establish a factual basis for the guilty plea. Gauvin admitted to tying up Aiyana, paddling her with a wooden cutting board, leaving her with her abusive father, and failing to seek medical attention; she also admitting to knowingly undertaking all of those actions and that those actions resulted in Aiyana's death. Then, the entirety of the State's cross-examination consisted of the following:
Appellant's Appendix at 46.
In her petition for post-conviction relief, Gauvin challenged the sufficiency of the factual basis, alleging there was little to no evidence to show whether Gauvin or Christian inflicted the fatal blow to Aiyana and the evidence was therefore insufficient to support the guilty plea. In finding an adequate factual basis for the guilty plea, the post-conviction court found Gauvin admitted to beating Aiyana and "intentionally beat Aiyana knowing that the likely result was death." Appendix to Brief of Petitioner-Appellant at 96.
The trial court ensured the State explained to Gauvin, on the record, that Gauvin was alleged to have knowingly or intentionally killed another human; Gauvin stated she understood. Appellant's Appendix at 35. She subsequently admitted what was "contained therein as true."
Gauvin raises two claims which she frames as "structural errors" made by the trial court: the court impermissibly held Gauvin's exercise of her right to silence against her, and it considered irrelevant, inadmissible, and prejudicial evidence in sentencing her to LWOP. The scope of relief available in a petition for post-conviction relief is "limited to issues that were not known at the time of the original trial or that were not available on direct appeal. Issues available on direct appeal but not raised are waived, while issues litigated adversely to the defendant are res judicata."
Whether trial counsel offered effective assistance to a defendant is determined by a two-pronged test set forth in
Gauvin was represented by three public defenders, all of whom were Criminal Rule 24 qualified.
Gauvin first argues her trial counsel was ineffective for failing to object to irrelevant and prejudicial evidence because they did not understand the penalty phase in capital sentencing is different than the penalty phase in ordinary felony sentencing. In order to prevail on a claim of ineffective assistance due to failure to object, Gauvin must prove that the objection would have been sustained and that she was prejudiced by the failure.
Gauvin argues the State is limited only to relevant evidence and arguments which prove statutory aggravators in a capital case; here, that the victim was under twelve and that the victim was tortured while she was alive. As a general proposition, this is correct (though evidence relevant to mitigating factors is also admissible).
The same is true of a sentencing hearing."
Gauvin specifically objects to the admission of testimony from first responders and Scott Hayden, the father of Gauvin's two other children. The first responders testified about the crime scene as they found it and incidents in which they had interacted with Gauvin previously. Hayden testified about his prior relationship with Gauvin.
We need not address whether the objections to this testimony would have been sustained because Gauvin was not prejudiced from the admission of the challenged statements.
Gauvin next claims that her trial counsel was ineffective for failing to investigate claims of bias and thoroughly cross-examine some of the State's witnesses, in particular, Kathleen White and Tammy Lynch. Regarding the performance prong, counsel "is afforded considerable discretion in choosing strategy and tactics, and we will accord that decision deference. A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment."
White was Gauvin's neighbor and testified about the lack of racial animus in the neighborhood. She also testified about instances where she saw Gauvin interact with Aiyana. Gauvin's counsel failed to elicit testimony from White admitting she called Gauvin a racial slur as documented in a police report. Gauvin argues no strategic move could have led to the decision not to cross-examine White more effectively because the racial animus was to prove part of a mitigator, not attack White. Lynch, as mentioned above, testified that Gauvin admitted to killing Aiyana in her presence. Gauvin argues that circumstances in Lynch's personal life biased Lynch against Gauvin, and that "Lynch might have been influenced, even subconsciously, by her background in testifying against someone accused of child abuse." Brief of Petitioner-Appellant at 12. The post-conviction court found that it was merely a tactical decision not to cross-examine them at length, and it would have been an "excessive stretch of logic" to argue Lynch was so influenced by events in her personal life as to lie about Gauvin's statements. App. to Brief of Petitioner-Appellant at 97.
The failure to cross-examine White more thoroughly caused no prejudice. One of Gauvin's proposed mitigators was that after Gauvin was adopted, she was teased and called "an [O]reo," Brief of Petitioner-Appellant at 12, and she had difficulties growing up as a bi-racial child in her neighborhood and at school. By extension, the racial tensions in her neighborhood as an adult exacerbated that problem. Gauvin alleges White's testimony undermined this piece of mitigation and White should therefore have been impeached on the issue of the neighborhood atmosphere. Gauvin has not shown a reasonable probability that the result of the proceeding would have been different if White had been impeached by the police report. The trial court found in its sentencing order that Gauvin had a "tragic childhood" that resulted in her Borderline Personality Disorder. Appellant's App. at 73. This shows that the court accepted, at least to some extent, Gauvin's proposed mitigator. Thus, we are not led wholly to a conclusion opposite that reached by the post-conviction court, and Gauvin was not denied effective assistance of counsel in this respect.
With regard to Lynch's testimony, we do not believe Gauvin has established that counsel's performance in cross-examining Lynch fell below an objective standard of reasonableness. Lynch testified about speaking with Gauvin to investigate whether Gauvin had attempted suicide in her cell. During that conversation, Gauvin admitted to Lynch that she killed Aiyana. Lynch then testified that immediately after this conversation, she spoke with her sergeant, reported the conversation, and then filed a report about the incident. Counsel thoroughly cross-examined Lynch to explore whether anyone had followed up with Gauvin's admission, or whether any other inmates who were in the cell block also heard the confession. Gauvin claims that counsel was deficient because he should have explored Lynch's potential bias on cross-examination as Lynch had an abusive situation in her own family. At the post-conviction hearing, Gauvin's trial counsel stated he did not think Lynch's family history would have a bearing on her truthfulness. Transcript of Post-Conviction Relief Hearing at 26. We give deference to trial counsel's strategy and tactics and conclude the post-conviction court did not err in concluding trial counsel used reasonable professional judgment and did not render ineffective assistance of counsel.
Finally, Gauvin argues trial counsel was ineffective for failing to present mitigating evidence from Gauvin's brother that Gauvin intended to install flooring in Aiyana's bedroom and was going to finish the conversion process from garage to bedroom. The alleged prejudice to Gauvin was that the State made an issue of the cold, bare conditions of the room and the court considered these conditions in its sentencing order. The post-conviction court determined that this mitigating evidence would not "undo the fact that the victim was required to sleep there when [Gauvin's] own children had their own rooms which were finished, furnished, and warm while the victim was not even permitted to sleep in her own bed." App. to Brief of Petitioner-Appellant at 97. Gauvin hoped to present mitigation evidence that in the future Aiyana would not have had to live in such deplorable conditions. However, she does not dispute the fact that at the time Aiyana was tortured and killed, Aiyana was forced to live in an unfinished room that was colder than the rest of the house while Gauvin's two other children each enjoyed their own bedroom. Gauvin has not, and cannot, show the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Bethea, 983 N.E.2d at 1138. She was not denied effective assistance of counsel by the failure to present this proposed mitigating evidence.
Gauvin argues the cumulative effect of the failure to object, investigate, cross-examine, and offer evidence in mitigation amounted to ineffective assistance of counsel. We find that each claim does not rise to the level of ineffective assistance; we further conclude that cumulatively, the claims fail to show Gauvin received ineffective assistance of counsel.
As noted in Part II, supra, Gauvin claims there were structural errors that affected her sentence: the court impermissibly held Gauvin's exercise of her right to silence against her, and it considered irrelevant, inadmissible, and prejudicial evidence in sentencing her to LWOP. While these claims were forfeited for not being raised on direct appeal, we may analyze them in the context of ineffective assistance of counsel for failure to raise the issues.
In addition to the
Gauvin argues her appellate counsel was ineffective for failing to raise the issue of the trial court allegedly holding it against her for not making a statement in allocution at the end of the sentencing hearing, framing it as a violation of her Fifth Amendment right to silence.
Appellant's App. at 73. The post-conviction court concluded that the challenged statements in the sentencing order simply observe that neither Gauvin nor Christian provided an account consistent with Aiyana's injuries and summarize why circumstantial evidence in this case was needed.
Gauvin asserts the judge's comment was akin to denying her right to exercise her Fifth Amendment right to not incriminate herself. Aside from asserting that the trial court used Gauvin's silence against her in the sentencing decision, Gauvin does not develop any further argument on this point of how appellate counsel was ineffective for not raising this issue on appeal. Gauvin has failed to show how the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court.
Gauvin next argues that appellate counsel was ineffective for failing to raise the issue of irrelevant, inadmissible, and prejudicial evidence being admitted because trial counsel failed to object. We addressed those claims in the context of ineffective assistance of trial counsel, Part III-B-1, supra. The reasoning by which we found trial counsel did not render ineffective assistance of counsel applies equally to appellate counsel on the same issues. Counsel was not ineffective with respect to these claims.
Gauvin finally argues that her sentence was disproportionately severe compared to Christian's sentence of fifty years for Class A felony neglect of a dependent and that counsel was ineffective for failing to raise this issue on appeal. This is separate from the argument made on her direct appeal pursuant to Appellate Rule 7(B). Gauvin's counsel knew this was an issue that could have been raised on direct appeal; he considered raising it, but after researching the issue, determined the law was "horrible" and he could not make a cogent argument. Tr. at 18. He decided then to allude to the issue in his brief and discuss it more thoroughly at oral argument. Justice Sullivan, in dissent, agreed with the argument that the punishment was disproportionately severe in light of Christian's fifty-year sentence. Gauvin, 883 N.E.2d at 105 (Sullivan, J., dissenting). Gauvin's appellate counsel's strategy was to avoid drawing attention to negative law that could hurt Gauvin's position. His choice to frame the argument in the context of a 7(B) sentence reduction was a reasonable strategy after concluding the law on proportionality was not favorable to her case. Gauvin therefore did not receive ineffective assistance of appellate counsel for failure to raise the disproportionality of the sentence on appeal.
Concluding there was an adequate factual basis for the guilty plea, the claim of structural error was an issue for direct appeal and not appropriate for post-conviction relief, and Gauvin was not denied effective assistance of counsel at trial or on direct appeal, we affirm.
Affirmed.
BARNES, J., and BROWN, J., concur.
Appellant's App. at 47.
