*1 er,” through the verdict and the rea- either or supporting physically dence an inter- reason, mediary. therefrom determine For this I too inferences would sonable the conspiracy. fact could verse conviction for a trier of whether reasonable beyond guilty was conclude the defendant would, addition, I in reverse the convic- weight The credi- a reasonable doubt. tion under Count Pursuant II. to the alle- bility evidence or the witnesses of this II, prosecution in gation Count the was matters to sponsoring it be are prove bound delivered to jury. the DeKemper greater cocaine in an amount Clifton The recited facts grams. than three The evidence ac- of an inferenc- above facts and indicate sufficient delivery tual is this amount cocaine jury’s es to verdicts. support DeKemper appellant’s entered car and police handed then $250. conspiracy Frias’ conviction of to commit in they closed the two as sat arrested dealing is cocaine reversed and a new gram car. A third of was found trial is on this ordered appellant’s person. One and one-half grams was found in the console of appel- respects all other car, lant’s and there were four six affirmed. grams tenths under the front seat where DeKemper was sitting. No rational trier C.J., J., SHEPARD, GIVAN, of fact could conclude from this evidence concur. certainty beyond a moral a reasonable J., DeBRULER, delivery DeKemper doubt an actual concurs and dissents of more than separate opinion three ounces of cocaine had taken DICKSON, J., yet ample concurs. While possessed that appellant cocaine DeBRULER, Justice, concurring and dis- it, intent to deliver that offense senting. charged. was not guilt The evidence of insufficient, count and for this I, charge Pursuant to the in Count con- reason the conviction under it be should cocaine, spiracy dealing to commit reversed. prosecution required prove that an agreement existed between appellant, De- DICKSON, J., concurs. Kemper, and Pursuant to the Sechrest. II, cocaine,
charge dealing in Count
prosecution required prove an actu- delivery
al DeKemper of cocaine to in an greater grams.
amount than three I,
Regarding jury in- Count
structed: agreement may implied
An from be Gregory RESNOVER, Appellant, D. parties although they conduct of the act- ed separately different means and together did not come enter an express agreement. No. 49S00-8904-CR-261. op- instruction erroneous Supreme Court Indiana. erates so prosecution as to relieve the proving conspir- an element of the crime of acy, namely, agreement. an There can be implication agreement
no rational of an
between persons from their
conduct objective toward common
they togeth- have not at some “come
815 922, Ind., (1984), 231, 873, 105 83 469 U.S. S.Ct. sentence 160. His conviction and L.Ed.2d ap affirmed that direct of death were appealed from the peal. Subsequently he relief denial of tion, Resnover State 1382, cert. denied 779, 1036, 762, L.Ed.2d said opin in this petition hereafter referred to cause before us ion PCR a second relief 2, on by Resnover March 5, 1988, the State filed a Re- May On sponse and Motion to Dismiss for Petition Post-Convic- Second Verified 24, Hearing. May tion Relief Without On response opposi- filed a Dismiss, tion the State’s Motion September the trial court on argument on the Motion heard oral State’s 31, 1988, the to Dismiss. On October granted the Motion to Dismiss court State’s Ind.R.P.C. 1 pursuant without a 4(e). all The trial court found that presented in Resnover’s second two issues either in the petition were raised post-conviction relief or the first judicata or petition and therefore were res of the first could have been raised on either therefore waived. appeals in this remaining presented ap- issues court in claiming error of the trial peal, petition without a dismissing the second assistance of hearing, concern ineffective Paul Deputy Public Defender State post-convic- handling the first Westerfeld, McGoff, Kevin P. Brent L. argues Levy did not tion relief. Resnover Indianapolis, appellant. allege cer- Gen., Pearson, Linley Atty. Arthur E. specified and omissions tain errors Gen., Perry, Atty. India- Deputy Thaddeus appellate counsel counsel Thomas napolis, appellee. Duffy, handling the direct Dawn The trial newly discovered evidence. PIVARNIK, Justice. Levy had raised PCR court found that Appellant appeals denial question of effective assistance sought relief lief Duffy, and had found Superior the Marion tion before Duffy assist- rendered effective I. Division Room Criminal Therefore, trial court found that ance. is that has come the law of case This is the third time this case of counsel effective assistance ap- did render this Court. Resnover’s before in this subse- issue is not available and sentence of peal from his conviction post-conviction relief. quent petition for reported death as Resnover The trial court is correct that tion. He not entitled to be heard raised claims of this issue in and the of trial counsel and relied properly denied him with- relief demonstrating various hearing. Schiro, supra; out a factual *3 their ineffectiveness. Lane, Alston, supra; supra. case, In present dismissed, After the .Levy
claims that
post-
was ineffective as
obtained a
counsel
statement
counsel,
conviction
not because he did not under oath from Samara Palmer to the
prior
assert the
ineffectiveness
counsel
effect
room
that Resnover was
a back
grounds
that he did not do so on the
with her when the homicide at issue in this
urged by
peti
case took
He attached this state
(29)
twenty-nine
tion. He lists
claims of ment to his Motion to Correct Error and
of trial and
urged
newly
that it constituted
discovered
counsel
urges
Levy
that
should have
post-convic
sufficient to warrant
raised those claims instead of or in addition
tion relief. The trial court denied the
to the ones he
raise.
It
readily
did
tion.
position
There is merit to the State’s
apparent should this Court review all of
that
nothing
this evidence had
to do
these issues and find that ineffectiveness
litigated
matters
in the
reversal,
meriting
is not shown
relief proceeding
exclusively
which was
subsequent petition
petitions
post-
allegations
concerned
that
conviction relief could be
by new incompetent
alleging
not
that
counsel, alleging present counsel is ineffec
incompetent
and that Samara
in failing
tive
other
to raise
dem
Palmer’s
statement
not relevant
to
onstrating the
Levy,
ineffectiveness of
Al-
sip,
Duffy.
This Court has
actually
This
presented by
permitted
decided Resnover is not
to raise
Resnover in
his
as a
to
new issues or
old
review
ones
this man
Levy’s
failing
indicate
ineffectiveness in
to
(1989), Ind.,
ner. Schiro v. State
Alsip’s
failing
out
ineffectiveness in
1201, 1204-05,
—
to call
testify.
Samara Palmer to
sub-
-,
107 L.Ed.2d
ject of
Palmer’s knowledge
Samara
218;
(1988),Ind.,
Lane v. State
521 N.E.2d
testimony concerning it was
considered
947, 948;
Alston
Ind.App.,
v. State
PCR 1.
sions them. The claim appellant the trial court, SMITH, Appellant, and this decision was affirmed after Charles full consideration this Court. by new Thereafter, represented filed No. 02S00-8805-PC-489. which, in claim making the
petition, Supreme Court of Indiana. repetition effect, amounts against claim Opinion on Petition for Rehearing appeal, but for his and counsel March alleged errors and additional new adds by them. per- or not should be Whether relitigate
mitted to his second governed by P.C. pertinent part
Rule 8. In that section
provides: All for relief available ato
tioner under this rule must be raised in ground finally
his original petition. Any
adjudicated may on the merits ... subsequent un- basis
less the court finds a for relief
asserted which for sufficient reason was inadequately raised asserted or petition. petition, Judge Com- denying calling
er ruled that since claim