110 N.E.3d 1167
Ind. Ct. App.2018Background
- Late on Nov. 24, 2016 Deputy Cramer stopped Burnell after observing lane weaving and crossing the center line; officer smelled alcohol and Burnell admitted drinking.
- Officer found knives in the vehicle and on Burnell; Burnell’s license was suspended. Burnell consented to a vehicle search and later to a blood draw after failing to provide a sufficient breath sample.
- Blood test showed BAC 0.119%. Homicide? No — relevant statutes cited for OWI and per se limits; prosecution charged multiple counts including elevated felony counts and alleged habitual vehicular substance offender status.
- At jury trial Burnell was convicted of Class A OWI (elevated to Level 6 felony by prior convictions) and related misdemeanors; he admitted priors and elected not to litigate enhancement phase. Court sentenced Burnell to 2.5 years for the Level 6 felony plus 3 years for habitual offender enhancement.
- On appeal Burnell raised eight ineffective-assistance-of-counsel claims; the court found seven waived for lack of cogent argument/citations and rejected the remaining claim on prejudice grounds given overwhelming evidence of intoxication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel provided ineffective assistance (multiple claimed errors) | State defends conviction and argues the record and law support trial and sentencing; contends most claims are procedurally defective | Burnell asserts eight specific deficiencies in counsel's performance (failure to object to in-car video, failure to interview/depose passenger and Sheridan officer, failure to challenge blood draw/report, failure to raise Pirtle challenge, failure to raise Miranda issue, failure to challenge breath test, failure to investigate priors) | Court: seven of eight contentions waived for failure to comply with App. R. 46(A)(8); the only minimally argued claim (failure to interview Sheridan officer) fails on prejudice — overwhelming evidence (BAC .119%, officer observations, HGN failure) defeats Strickland prejudice prong |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes two-part ineffective assistance standard: deficient performance and prejudice)
- Wentz v. State, 766 N.E.2d 351 (Ind. 2002) (Indiana application of Strickland and deference to trial strategy absent objective unreasonableness)
- Benefield v. State, 945 N.E.2d 791 (Ind. Ct. App. 2011) (isolated mistakes/poor strategy do not necessarily show ineffective assistance)
- Pirtle v. State, 323 N.E.2d 634 (Ind. 1975) (defense-related authority referenced by appellant; failure to explain applicability may waive claim)
- Dortch v. Lugar, 266 N.E.2d 25 (Ind. 1971) (appellate-rule requirements for presenting arguments and citations)
- Keller v. State, 549 N.E.2d 372 (Ind. 1990) (courts will not review undeveloped or perfunctory appellate arguments)
- Kishpaugh v. Odegard, 17 N.E.3d 363 (Ind. Ct. App. 2014) (appellant must support contentions with analysis and authority)