ROBB, Judge.
John Mosley, pro se, appeals the post-conviction court's denial of his petition for post-conviction relief, raising the following issues for our review: (1) whether Mosley received ineffective assistance of trial counsel; and (2) whether Mosley received ineffective assistance of appellate counsel. Concluding the post-conviction court did not err in denying Mosley's petition, we affirm.
Many of the facts relevant to Mosley's convictions were recounted by this court on direct appeal:
Mosley v. State, No. 49A02-9710-CR-681, slip op. at 2-4 (Ind. Ct. App. Oct. 9, 1998), trans. denied.
The State charged Mosley with rape as a Class A felony, robbery as a Class B felony, and criminal confinement as a Class B felony. Following a jury trial in 1994, Mosley was convicted on all counts. Mosley appealed. Finding the trial court erred by giving a supplemental instruction to the jury after deliberations had commenced, this court reversed and remanded the case for a new trial in Mosley v. State, 660 N.E.2d 589 (Ind. Ct. App. 1996).
A second jury trial was held in 1997. The State introduced the composite of the assailant, the photo array from which the victim positively identified Mosley, and the results of the rape kit. A forensic analyst testified that DNA recovered from the victim's clothing and vagina matched Mosley's DNA, and the victim identified Mosley as her assailant in open court. The jury found Mosley guilty as charged. The trial court sentenced Mosley to forty years for rape, twenty years for robbery, and ten years for criminal confinement, to be served consecutively for an aggregate sentence of seventy years executed in the Indiana Department of Correction. Mosley appealed, raising the following issues: (1) whether the trial court improperly admitted identification evidence; (2) whether the State established a sufficient chain of custody for the rape kit; (3) whether the trial court properly instructed the jury on reasonable doubt; and (4) whether a bailiff's ex parte communication with the jury constituted reversible error. Finding no error, we affirmed Mosley's convictions in an unpublished memorandum decision, Mosley, No. 49A02-9710-CR-681, slip op., and our supreme court denied his petition to transfer.
Thereafter, Mosley filed several petitions for post-conviction relief. He withdrew his first and second petitions, filed in 1999 and 2006 respectively. Mosley, pro se, filed a third petition for post-conviction relief in 2010, alleging ineffective assistance of trial and appellate counsel.
"Defendants who have exhausted the direct appeal process may challenge the correctness of their convictions and sentences by filing a post-conviction petition." Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied, 540 U.S. 830 (2003). Post-conviction proceedings do not afford defendants the opportunity for a "super-appeal." State v. Holmes, 728 N.E.2d 164, 168 (Ind. 2000), cert. denied, 532 U.S. 1067 (2001). Instead, they provide a narrow remedy for subsequent collateral challenges to convictions. Id. The scope of relief is limited to "issues that were not known at the time of the original trial or that were not available on direct appeal." Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013) (quotation omitted).
The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner who is denied post-conviction relief appeals from a negative judgment, which may be reversed only if "the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court." Stevens, 770 N.E.2d at 745. In reviewing a denial of post-conviction relief, we neither reweigh the evidence nor reassess the credibility of witnesses. Holmes, 728 N.E.2d at 169. We consider only the evidence that supports the judgment and the reasonable inferences to be drawn from that evidence. Id. Finally, we accept the post-conviction court's factual findings unless clearly erroneous, but we do not defer to its legal conclusions. Stevens, 770 N.E.2d at 746 (citing Ind. Trial Rule 52(A)).
The Sixth Amendment "right to counsel is the right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). To establish a claim of ineffective assistance of counsel, a defendant must establish (1) counsel's performance was deficient such that it fell below an objective standard of reasonableness based on prevailing professional norms and (2) the defendant was prejudiced by counsel's deficient performance. Id. at 687-88.
When considering whether counsel's performance was deficient, we begin with a "strong presumption" that counsel's performance was reasonable. Id. at 689. As there are countless ways to provide effective assistance in any given case, the defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. Id. But an error by counsel, even if professionally unreasonable, does not warrant setting aside a conviction if the error had no effect on the judgment. Id. at 691. Accordingly, a defendant is prejudiced by counsel's deficient performance only if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
Mosley argues the post-conviction court erred in denying his petition alleging ineffective assistance of trial and appellate counsel. Mosley identifies four alleged deficiencies: (1) his trial counsel's failure to subpoena alibi witnesses; (2) his trial counsel's failure to request an admonishment after the State made improper comments during closing argument; (3) his trial counsel's failure to object to consecutive sentences; and (4) his appellate counsel's failure to raise meritorious issues on direct appeal. We will address each allegation in turn.
Mosley argues he received ineffective assistance because his trial counsel failed to subpoena alibi witnesses, particularly James Winfield. Prior to Mosley's first trial in 1994, counsel filed a timely Notice of Alibi identifying Winfield as an alibi witness, but Winfield did not testify at the 1994 trial. Prior to Mosley's second trial in 1997, counsel spent several months attempting to locate Winfield. Winfield lived in Chicago and did not own a telephone. Counsel sent an investigator from the Marion County Public Defender's office in search of Winfield and also enlisted the help of the Cook County Public Defender's office. After locating and finally speaking with Winfield, counsel filed a Belated Notice of Alibi and an Additional List of Witnesses naming Winfield as well as Brenda Walker and Camille Buffy as potential alibi witnesses. Walker and Buffy are family members of Mosley and also resided in Chicago at that time. The Belated Notice of Alibi stated in relevant part, "[O]n the date and at the time of the alleged offense as charged, Defendant was at his residence living with James Winfield, located at 729 West 71st Street, 2nd floor, Chicago, IL 60621." Record of Proceedings ("R.") at 276.
The State objected to the Belated Notice of Alibi and additional witnesses because the Notice was untimely, the amended witness list was filed after the court's deadline, the witnesses lived out-of-state, and "[t]he defense in the first trial did not present an alibi, so the State [was] not aware of these witnesses or what their testimony would entail." Id. at 277.
At a hearing on the day before trial, the trial court heard argument on whether the alibi witnesses should be permitted to testify. At the conclusion of the hearing, the trial court took the matter under advisement. On the morning of trial, the trial court determined while "the defense filed what they called a Belated Notice of Alibi[,] technically, what it should have been is an Amended Notice of Alibi because the Notice of Alibi that was filed in 1993 still stands. . . ." Id. at 487. The trial court ruled Winfield, Walker, and Buffy could testify because the amended witness list was filed only three days after the court's deadline and the alleged alibi was "the defendant's only defense." Id. at 487-88.
Counsel did not subpoena Winfield, Walker, or Buffy. At the hearing on the day before trial, counsel explained, "[T]hey were family members so I did not subpoena them. . . ." Id. at 490. In addition, counsel explained, because the witnesses resided in Chicago, "the subpoena from Indianapolis is not valid there. . . . [I]t's not the same as going and issuing a subpoena if they lived in Marion County." Id. at 491.
Counsel called two witnesses to testify,
Winfield testified at the post-conviction hearing in June 2011. When asked what he remembered about the night of May 27, 1992, Winfield stated,
2011 PCR Tr. at 8-10. Winfield further testified he provided this information to a woman in 1997, but he could not recall the woman's name. The woman asked Winfield to testify to Mosley's whereabouts on the night of May 27, 1992, but Winfield confirmed he never received a subpoena. Winfield offered no explanation for why he failed to appear at Mosley's trial in 1997. Walker and Buffy, Mosley's other alibi witnesses, did not testify at the post-conviction hearing. Counsel testified,
Transcript of Post-Conviction Hearing on July 17, 2013, and September 11, 2013 at 53, 56.
The post-conviction court issued its findings of fact and conclusions of law denying Mosley's petition for post-conviction relief on September 3, 2014. The post-conviction court concluded,
Appendix in Support of Post-Conviction Appellant Brief ("App.") at 24-26 (citation omitted).
Under these circumstances, we cannot say "the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court." Stevens, 770 N.E.2d at 745. We agree Mosley has failed to meet his burden of establishing deficient performance and resulting prejudice. See P-C.R. 1(5); Strickland, 466 U.S. at 687. As to Walker and Buffy, neither testified at the post-conviction hearing, and nothing in the record indicates what their testimony would have been had they testified. See Lee, 694 N.E.2d at 722 ("When ineffective assistance of counsel is alleged and premised on the attorney's failure to present witnesses, it is incumbent upon the petitioner to offer evidence as to who the witnesses were and what their testimony would have been.") (citation omitted).
As to Winfield, his whereabouts were unknown until a few weeks before trial. Winfield lived out-of-state, and when counsel finally located him, he seemed willing to testify. Counsel did not believe a subpoena was necessary because Winfield and Mosley "grew up together as brothers," 2011 PCR Tr. at 12, and it is unclear from the record whether counsel could have procured a subpoena enforceable in Illinois on such short notice. In addition, counsel filed a motion to continue the week before trial. The motion stated counsel required additional time to make travel arrangements for out-of-state alibi witnesses, but the trial court denied the motion. When Winfield failed to appear at trial, counsel moved for a recess or a continuance to secure his attendance, but the trial court denied the request. See Montgomery v. State, 804 N.E.2d 1217, 1221 (Ind. Ct. App. 2004) (concluding trial counsel's performance was deficient where counsel "fail[ed] . . . to subpoena two of the State's expert witnesses or, in the alternative, request a continuance when the State did not call these experts and they were unavailable for Montgomery's defense") (emphasis added), trans. denied.
Defense counsel is not ineffective for failing to present all evidence in support of the defense position. Williams v. State, 508 N.E.2d 1264, 1268 (Ind. 1987). But even if counsel's failure to subpoena Winfield constituted deficient performance, Mosley cannot demonstrate this failure to obtain a subpoena had any effect on the judgment. See Strickland, 466 U.S. at 691. When Winfield testified at the post-conviction hearing, he did not explain his absence during the 1997 trial. And even supposing Winfield had received a subpoena and testified, the victim positively identified Mosley from a photo array and then identified Mosley as her assailant at trial. The victim further testified Mosley told her he was from Chicago, would be going back to Chicago, and would therefore be "long gone" if she tried to call the police. R. at 532. Mosley was later arrested in Chicago, and the results of the rape kit corroborated the victim's testimony. Counsel aggressively challenged the identification evidence and the reliability of the DNA analysis to no avail. Given the strong evidence of guilt presented at trial, we cannot say there is a reasonable probability the result of the proceeding would have been different had Winfield received a subpoena.
As Mosley has not demonstrated he was prejudiced by counsel's failure to subpoena alibi witnesses, he has failed to meet his burden of establishing grounds for relief on this claim.
"[I]n order to properly preserve a claim of prosecutorial misconduct for appeal, a defendant must not only raise a contemporaneous objection, he must also request an admonishment and, if the admonishment is not given or is insufficient to cure the error, then he must request a mistrial." Lainhart v. State, 916 N.E.2d 924, 931 (Ind. Ct. App. 2009) (quotation omitted). Mosley argues he received ineffective assistance because his trial counsel failed to request an admonishment after the State made the following comments during closing argument: "Why wasn't Mr. Mosley's alibi checked out? Because he has none. Who came into this courtroom and told you Mr. Mosley was in Chicago on May 27th of 1992? No one did." Supplemental Record of Proceedings at S39. Defense counsel promptly objected, but the trial court overruled the objection. Counsel did not thereafter request an admonishment.
The post-conviction court concluded the State was merely "comment[ing] on the strength and quality of the defense case." App. at 26-27. We disagree. While it is not improper in closing argument to focus on the uncontradicted nature of the State's case, the prosecutor may not suggest the defendant has the burden of proof in a criminal case by inquiring why the defendant did not call a witness to testify on his or her behalf. Wright v. State, 690 N.E.2d 1098, 1112 (Ind. 1997). Nonetheless, we conclude Mosley cannot demonstrate he was prejudiced by counsel's failure to request an admonishment. At the conclusion of closing arguments, the trial court instructed the jury,
R. 340 (emphasis added). This final instruction cured the State's improper remarks. See Shaffer v. State, 674 N.E.2d 1, 6-7 (Ind. Ct. App. 1996) (concluding although counsel did not request an admonishment or a mistrial, the trial court's instruction to the jury cured any error in the prosecutor's improper question), trans. denied.
Although we disagree with the post-conviction court's conclusion as to the propriety of the remarks at issue, we cannot say "the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court." Stevens, 770 N.E.2d at 745. Mosley has not demonstrated he was prejudiced by counsel's failure to request an admonishment and has therefore failed to meet his burden of establishing grounds for relief on this claim.
"When a claim of ineffective assistance of counsel is based on counsel's failure to object, the defendant must show that a proper objection would have been sustained." Willsey v. State, 698 N.E.2d 784, 794 (Ind. 1998). At the conclusion of the 1997 trial, the trial court sentenced Mosley to forty years for rape, twenty years for robbery, and ten years for criminal confinement, to be served consecutively for an aggregate sentence of seventy years. Mosley argues he received ineffective assistance because his trial counsel failed to object to the trial court's imposition of consecutive sentences. Mosley contends counsel should have insisted he be sentenced under a version of Indiana Code section 35-50-1-2 ("Section 35-50-1-2") effective July 1, 1994, two years after the date of his offenses.
The general rule is that "courts must sentence defendants under the statute in effect at the time the defendant committed the offense." Jacobs v. State, 835 N.E.2d 485, 491 n.7 (Ind. 2005) (quotation omitted). The narrow exception to this general rule is the doctrine of amelioration, which "entitles defendants who are sentenced after the effective date of a statute providing for a more lenient sentence to be sentenced pursuant to that statute, as opposed to the statute in effect at the time the crime was committed." Cottingham v. State, 971 N.E.2d 82, 85 (Ind. 2012).
In the present case, Mosley raped, robbed, and confined the victim on May 27, 1992. Following a jury trial in March 1994, Mosley was convicted on all counts and sentenced in May 1994. In 1996, this court reversed and remanded for a new trial. Mosley faced the same charges at his second trial in April 1997. Following the 1997 trial, the jury found Mosley guilty on all counts, and the trial court sentenced him in May 1997. Mosley contends his counsel was ineffective by failing to object to the imposition of consecutive sentences at the May 1997 sentencing hearing.
At the time of Mosley's offenses, Section 35-50-1-2 provided,
Ind. Code § 35-50-1-2 (1987). This version of the statute, which granted the trial court wide discretion in determining whether sentences should be served consecutively, Pearson v. State, 543 N.E.2d 1141, 1144 (Ind. Ct. App. 1989), was also in effect at the time of Mosley's first sentencing hearing in May 1994.
In March 1994, the General Assembly passed Senate Enrolled Act No. 115, amending Section 35-50-1-2(a), effective July 1, 1994, to include the single episode of criminal conduct rule:
Ind. Code § 35-50-1-2 (1994); Pub. L. No. 164-1994. Mosley believes this version of the statute—no longer in effect in 1997—should have applied at his sentencing in 1997. Mosley argues counsel should have objected to the trial court's imposition of consecutive sentences because his convictions arose out of a single episode of criminal conduct and his aggregate sentence of seventy years exceeded the presumptive sentence for murder, a felony one class higher than the most serious felony for which he was convicted.
In May 1995, the General Assembly passed House Enrolled Act ("H.E.A.") No. 1336, again amending Section 35-50-1-2, effective July 1, 1995. H.E.A. No. 1336 introduced the "crime of violence" exception to the cap on consecutive sentences arising from a single episode of criminal conduct. This version of the statute provided in relevant part:
Ind. Code § 35-50-1-2 (1995) (emphasis added); Pub. L. No. 304-1995. This version of the statute also included a savings clause, stating "IC 35-50-1-2, as amended by this act, applies to crimes committed after June 30, 1995." Id.
In March 1996, the General Assembly passed H.E.A. No. 1148, amending Section 35-50-1-2 yet again, effective July 1, 1996. H.E.A. No. 1148 added a provision requiring consecutive sentences if a court determines, under Indiana Code section 35-50-2-11, a person used a firearm in the commission of an offense. Ind. Code § 35-50-1-2 (1996); Pub. L. No. 203-1996. This version of the statute was in effect when Mosley was sentenced in May 1997.
Mosley believes the version of the statute most favorable to him should apply— that is, the version effective from July 1, 1994, to June 30, 1995. But this version of the statute was not in effect at the time of his offenses, was not in effect when he was sentenced in May 1994, and was no longer in effect when he was sentenced in 1997. In other words, the version of the statute Mosley believes should apply was not in effect at any time relevant to the disposition of his case. The post-conviction court concluded, and we agree,
App. at 30. As Mosley cannot demonstrate the trial court would have sustained an objection to the imposition of consecutive sentences, Mosley has failed to meet his burden of establishing grounds for relief on this claim.
Finally, Mosley contends his appellate counsel rendered ineffective assistance on direct appeal. The standard for ineffective assistance of appellate counsel is the same standard as for trial counsel. Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013). The petitioner must show appellate counsel was deficient in his or her performance and the deficiency resulted in prejudice. Id.
Mosley argues he received ineffective assistance because appellate counsel failed to raise meritorious issues "significant and obvious on the face of the record." Amended Appellant's Brief at 22. Mosley contends appellate counsel on direct appeal should have raised the following issues: (1) trial counsel's failure to subpoena alibi witnesses; (2) the trial court's failure to admonish the jury after the State's improper remarks during closing argument; and (3) the trial court's imposition of consecutive sentences.
When evaluating a claimed deficiency in appellate representation due to an omission of an issue, a post-conviction court is properly deferential to appellate counsel's choice of issues for appeal unless such a decision was unquestionably unreasonable. Such deference is appropriate because the selection of issues for direct appeal is one of the most important strategic decisions of appellate counsel. Appellate counsel's performance, as to the selection and presentation of issues, will thus be presumed adequate unless found unquestionably unreasonable considering the information available in the trial record or otherwise known to the appellate counsel. In crafting an appeal, counsel must choose those issues which appear from the face of the record to be most availing. Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues. Thus, to prevail in such claim in post-conviction proceedings, it is not enough to show that appellate counsel did not raise some potential issue; instead, the defendant must show that the issue was one which a reasonable attorney would have thought availing.
Hampton v. State, 961 N.E.2d 480, 491-92 (Ind. 2012) (citations and internal quotation marks omitted).
Applying this standard to the present case, we cannot say appellate counsel's choice of issues was "unquestionably unreasonable." Id. at 491. With regard to trial counsel's failure to subpoena Mosley's alibi witnesses, "some grounds supporting an assertion of inadequate representation will not be reasonably knowable, much less fully factually developed, until after direct appeal." Woods v. State, 701 N.E.2d 1208, 1220 (Ind. 1998), cert. denied, 528 U.S. 861 (1999). Appellate counsel explained this to Mosley in a letter dated April 21, 1998, which stated in relevant part, "Any issue you may have arising from your alibi would be best raised at post-conviction, as it was not fully developed on the face of the record." Petitioner's Exhibit E. As to the trial court's failure to admonish the jury after the State's improper remarks, the error was cured by the trial court's final instruction stating the prosecutor has the burden of disproving Mosley's alibi beyond a reasonable doubt. Supra Section II.B. Finally, as explained above, the trial court did not err by imposing consecutive sentences, supra Section II.C, so this issue is not "one which a reasonable attorney would have thought availing." Hampton, 961 N.E.2d at 492.
As Mosley has not demonstrated appellate counsel's selection of issues for direct appeal was unquestionably unreasonable, Mosley has failed to meet his burden of establishing grounds for relief on this claim.
The post-conviction court did not err in denying Mosley's petition for post-conviction relief. As Mosley has not demonstrated he received ineffective assistance of trial or appellate counsel, we affirm the post-conviction court's denial of post-conviction relief.
Affirmed.
Vaidik, C.J., and Pyle, J., concur.
At the time of Mosley's 1997 trial, both Indiana and Illinois had adopted the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. See Ind. Code § 35-37-5-1 to -9; 725 Ill. Comp. Stat. 220/1 to /6. Indiana Code section 35-37-5-5(a) sets forth the procedure for issuing a subpoena to a witness residing in another state:
