MAY, Judge.
Trondo L. Humphrey appeals the denial of his petition for post-conviction relief. As his trial counsel's assistance was ineffective and his petition is not barred by laches,
Humphrey was convicted of murder in 1996. Our Indiana Supreme Court recited the facts of the crime:
Humphrey v. State, 680 N.E.2d 836, 837-38 (Ind.1997) (footnote omitted).
In his direct appeal,
On June 6, 2012, Humphrey filed a pro se petition for post-conviction relief and requested counsel. On March 14, 2014, Humphrey filed, via counsel, an amended petition for post-conviction relief, arguing his trial counsel was ineffective because 1) he did not object to the admission of Brooks' pre-trial statement on the correct grounds;
The post-conviction court held evidentiary hearings on Humphrey's petition on November 10, 2014, and December 22, 2014. On August 6, 2015, it denied Humphrey's petition, finding Humphrey's trial counsel was not ineffective.
Post-conviction proceedings are not "super appeals"; rather, they afford petitioners a limited opportunity to raise issues that were unavailable or unknown at trial and on direct appeal.
Humphrey did not seek post-conviction relief until fifteen years after his direct appeal was decided. The post-conviction court determined his petition was not barred by laches, and that was not clearly erroneous.
Because the State had the burden of proving laches as an affirmative defense, the applicable standard of review requires that we affirm unless we find the judgment clearly erroneous. Armstrong v. State, 747 N.E.2d 1119, 1120 (Ind.2001). This is a review for sufficiency of evidence. Id. We will not reweigh evidence or assess credibility of witnesses. Rather, we look only to the evidence and reasonable inferences favorable to the judgment, and we will affirm if there is probative evidence to support the post-conviction court's judgment. Id.
"The equitable doctrine of laches operates to bar consideration of the merits of a claim or right of one who has neglected for an unreasonable time, under circumstances permitting due diligence, to do what in law should have been done." Id. "For laches to apply, the State must prove by a preponderance of the evidence that the petitioner unreasonably delayed in seeking relief and that the State is prejudiced by the delay." Id. (emphasis added).
As there was no evidence Humphrey knew post-conviction remedies were available to him, we decline the State's invitation to find he was "on bright-lights notice about this issue and sat on [his] hands for a decade and a half." (Br. of Appellee at 16.) We acknowledge that the State need not
Perry v. State, 512 N.E.2d 841, 844-45 (Ind.1987) (citation omitted), reh'g denied.
As there was probative evidence to permit a determination Humphrey did not know post-conviction remedies were available to him, the State did not prove Humphrey's delay was unreasonable.
To succeed on a claim of ineffective assistance of counsel, a petitioner must show not only that his trial counsel's representation fell below an objective standard of reasonableness, but also that counsel's errors were so serious as to deprive him of a fair trial because of a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. Stevens v. State, 770 N.E.2d 739, 746 (Ind.2002), reh'g denied, cert. denied. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id.
Humphrey's counsel was deficient for not asking that the jury be correctly instructed that Brooks' unsworn statement could be considered only for impeachment, for not objecting to the trial court's incorrect instruction, for not tendering a correct instruction, and for erroneously telling the jury in closing argument that the statement could be used in deciding whether Humphrey was guilty.
Humphrey's argument is centered on the unsworn statement by Roosevelt Brooks to the effect he was with Humphrey the night of the shooting, Humphrey went to the truck Laughlin was riding in, Brooks heard a noise, and Humphrey returned and said he had shot one of the men in the truck. Brooks disavowed that statement at trial. While there was evidence Humphrey was at the scene when the victim was shot, Brooks' statement was the only evidence specifically identifying Humphrey as the shooter.
The trial court admitted that hearsay statement but did not limit its use to impeachment. It instead erroneously instructed the jury it could consider the statement as substantive evidence of Humphrey's guilt. Our Indiana Supreme Court explained why Brooks' prior unsworn statement should not have been admitted as substantive evidence:
Humphrey, 680 N.E.2d at 838-39. But the Humphrey Court determined on direct appeal that Humphrey had waived his argument that the jury was wrongly allowed to consider the statement as substantive evidence. Id. at 840.
In its final instructions to the jury, Humphrey's trial court gave an erroneous "unlimiting" instruction, telling jurors they were free to consider a prior inconsistent statement both to impeach and as substantive evidence bearing on Humphrey's guilt or innocence. That instruction "misstated the current law and instructed the jury that it could consider as substantive evidence an important piece of evidence that was admissible only for impeachment." Id. Humphrey did not object to the instruction. The trial court explicitly asked Humphrey's counsel if he had any objection to the proposed instructions and counsel answered in the negative. Nor did Humphrey's counsel tender a correct instruction. Counsel's failure to object to or correct the court's instructional error was below the standard reasonably expected of counsel.
Not only did counsel decline to object to an instruction that misstated the law and erroneously told the jury that it could consider Brooks' statement as substantive evidence, in his closing argument he misstated the law in the same way the jury instruction did. Counsel told the jury it could "consider the out-of-court statements as evidence in determining the guilt or innocence of [Humphrey] for the crime charged. That's the law, plain and simple. That's the instructions. You have to follow what ... follow what you're presented." (Trial R. at 488-89).
As explained above, that was wrong and counsel incorrectly told the jury it could consider highly damaging evidence against Humphrey to determine whether he was guilty. The jury should have been told it could consider Brooks' statement identifying Humphrey as the shooter only to determine whether Brooks was credible. Counsel was deficient for making the same erroneous statement of law as did the trial court in its instructions.
Counsel is afforded considerable discretion in choosing strategy and tactics, and these decisions are entitled to deferential review. Id. at 746-47. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. Id. at 747. On appeal, we do not second guess counsel's strategic decisions requiring reasonable professional judgment even if the strategy or tactic, in hindsight, did not best serve the defendant's interests. Elisea v. State, 777 N.E.2d 46, 50 (Ind.Ct.App.2002).
Trial strategy is not subject to attack through an ineffective assistance of counsel claim unless the strategy is so deficient or unreasonable as to fall outside the objective standard of reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind.1998). This was. If the decisions by Humphrey's counsel were, as the State argues, part of a "strategy," we hold a strategy premised on allowing and making erroneous statements of law that improperly permit a jury to consider as substantive evidence of a client's guilt a statement that was admissible only for impeachment is a strategy "so deficient or unreasonable as to fall outside of the objective standard of reasonableness." Id. And see Roark v. State, 573 N.E.2d 881, 883 (Ind.1991) (noting on appeal "apparent
Our Indiana Supreme Court addressed failure to correct an erroneous statement of law in Baer v. State, 942 N.E.2d 80, 99-100 (Ind.2011), reh'g denied. Baer argued counsel was ineffective for declining to object to misstatements of law the prosecutor made. Our Supreme Court disagreed:
Id.
In the case before us, by contrast, Humphrey's counsel did not correctly state the law in closing argument, nor did the trial court in its jury instructions. We cannot say permitting and repeating an incorrect statement of law that told the jury it could consider damaging evidence against Humphrey for an improper purpose represented a reasonable trial strategy. Counsel's performance was deficient.
To succeed on a claim of ineffective assistance of counsel, a petitioner must show counsel's errors were so serious as to deprive him of a fair trial because of a reasonable probability that, but for counsel's unprofessional errors, the result would have been different.
On direct appeal, our Supreme Court characterized the evidence against Humphrey as "extremely thin":
Humphrey, 680 N.E.2d at 840-41.
Humphrey was prejudiced because Brooks' statement, which was the only evidence that specifically identified Humphrey as the shooter in a case where "[i]dentity is ... the crucial evidentiary issue," should not have been admitted as substantive evidence of his guilt. In Maymon v. State, 870 N.E.2d 523, 528 (Ind.Ct. App.2007), on reh'g, 875 N.E.2d 375 (Ind. Ct.App.2007), trans. denied, we held Maymon was prejudiced by counsel's ineffective assistance where counsel did not request severance as of right of four counts of burglary. The only evidence of Maymon's intent to commit theft in two of the burglaries was the fact that in the other two burglaries he had also committed theft. Because the evidence of the two burglaries where theft did occur would have been inadmissible at separate trials for the two burglaries where thefts did not occur, Maymon was prejudiced by his trial counsel's failure to move for severance of the burglary charges. Id. at 529. Similarly, in this case, counsel did not submit a correct instruction or object to the court's instruction, and incorrectly told the jury it could consider Brooks' statement in determining Humphrey's guilt or innocence. Humphrey was prejudiced by counsel's errors that allowed the jury to consider as substantive evidence the only evidence that identified Humphrey as the shooter.
As Humphrey's counsel's performance was deficient and the deficiencies prejudiced Humphrey, we reverse the denial of Humphrey's petition for post-conviction relief and remand for a new trial.
Reversed and remanded.
NAJAM, J., and RILEY, J., concur.
Post-Conviction Rule 1(6) requires the post-conviction court to make specific findings of fact and conclusions of law "on all issues presented," Kelly v. State, 952 N.E.2d 297, 301 (Ind.Ct.App.2011), so the findings and conclusions should have addressed laches. Where the post-conviction court enters findings and conclusions, as it is required to do, we cannot affirm the judgment on any legal basis — rather, we will affirm if the court's findings are sufficient to support the judgment. Lile v. State, 671 N.E.2d 1190, 1192 (Ind.Ct.App.1996). The State does not in its cross-appeal acknowledge the Lile rule or offer explanation why we might be able to affirm based on laches despite that rule.
In an Order issued March 30, 2016, we directed the post-conviction court to issue amended findings and conclusions that addressed all issues presented, specifically laches. It did so on April 22, 2016, and it determined Humphrey's post-conviction petition was not barred by laches. As explained below, that was not error. It did not otherwise change its original order denying Humphrey's petition on the ground Humphrey's counsel was not ineffective, which we reverse.
We decline to review this case with an enhanced level of deference because, as noted above, the post-conviction court adopted, verbatim, findings and conclusions the State submitted. Our Indiana Supreme Court noted in Prowell v. State, 741 N.E.2d 704, 708-09 (Ind. 2001), that:
In Prowell, most of the statements in the findings of fact and conclusions of law were correct "if viewed in isolation, but many are presented out of context and, as a result, are significantly misleading. We find some of the critical findings of the postconviction court to be clearly erroneous as that term is used in Trial Rule 52(A)." Id. at 709. We cannot in the case before us reconcile the "greater than usual deference" the State urges with the "inevitable erosion of the confidence of an appellate court that the [State-submitted] findings reflect the considered judgment" of Humphrey's post-conviction court. That is particularly true in this case because, as noted, there are omissions and findings of questionable factual and legal accuracy that have eroded our confidence.
The court concluded Humphrey "presented no evidence of an error by trial counsel so egregious that in all probability that error caused Humphrey's conviction." (App. at 82) (emphasis added). The court erred to the extent it required Humphrey to meet that standard to show prejudice, and we admonish the State to refrain from inaccurately characterizing the controlling law in findings and conclusions it submits.
The standard for demonstrating prejudice is: "A defendant establishes prejudice by demonstrating a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different." Peak v. State, 26 N.E.3d 1010, 1014 (Ind.Ct. App.2015) (emphasis added). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
As explained elsewhere in this decision, our confidence in this post-conviction order has been undermined in light of numerous errors in the court's findings and conclusions. The language Humphrey's post-conviction court used, which would require a showing of error by trial counsel "so egregious that in all probability that error caused" the conviction, is not found in any reported Indiana decision. It does appear in one unreported decision, in the form of a conclusion of law entered in a post-conviction case decided in the same court as was Humphrey's, but by a different judge. Winbush v. State, No. 48A02-1401-PC-32, 2014 WL 4101667 (Ind.Ct.App. Aug. 20, 2014), trans. denied. That decision does not indicate whether the post-conviction judge adopted verbatim findings and conclusions that the State submitted and that included the incorrect standard.
