Williаm D. ROBERTSON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent
No. 22A05-9403-PC-120
Court of Appeals of Indiana, Fourth District
May 30, 1995
Rehearing Denied July 6, 1995 and July 12, 1995
650 N.E.2d 1177
Reversed and remanded.
BAKER, J., and SHARPNACK, C.J., concur.
Pamela Carter, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Indianapolis, for appellee.
OPINION
RILEY, Judge.
Petitioner-Appellant William Robertson appeals from the denial of his Ind.Post-Con- viction Rule 1 Petition for Post-Conviction Relief.
We affirm in part, reverse in part and remand.
ISSUES
Robertson presents eleven issues for our review which we consolidate and rephrase as:
- Did the trial court exceed its juris- diction by amending the file-stamped date on the charging information?
- Did the charging information lack proper approval by the prosecutor?
- Did the trial court err by denying Robertson‘s tendered instruction?
- Did the trial court err by refusing to re-read a preliminary instruction?
- Did the trial court improperly com- municate with the jury during its delibera- tions?
- Did the trial court err by failing to hold an in camera hearing regarding the State‘s motion in limine?
- Did the prosecutor improperly elicit irrelevant testimony from the confidential informant?
- Was Robertson‘s sentence manifest- ly unreasonable?
- Did the trial court err by not asking the jury if the tornado that interrupted the trial affected its ability to decide the case?
- Did Robertson receive ineffective assistance of counsel?
FACTS
On August 17, 1992, after a jury triаl, Robertson was convicted of two counts of dealing in cocaine as a Class A felony1 and one count of dealing in cocaine as a Class B felony.2 He was sentenced to two thirty-five- year terms and a ten-year term of imprison- ment to be served consecutively. His convic- tion was affirmed on direct appeal in Robertson v. State (filed September 4, 1991), Ind. App., Cause No. 22A01-9010-CR-398, slip op. 1-7, 577 N.E.2d 625.
Robertson filed his Petition for Post-Con- viction Relief on August 17, 1992. After a hearing on May 28, 1993, the court denied Robertson‘s petition. It is this ruling from which Robertson appeals.
DISCUSSION
In a post-conviction relief proceed- ing, the petitioner bears the burden of estab- lishing the grounds for relief by a preponder- ance of the evidence. Babbs v. State (1993), Ind.App., 621 N.E.2d 326, 329, trans. denied. After a denial by the post-conviction court, the petitioner must satisfy the reviewing court that the evidence, without conflict, leads inevitably to a conclusion opposite that of the trial court. Id. In reviewing a denial of post-conviction relief, we neither reweigh the evidence nor judge witness credibility.
The State contends that Robertson has waived many of the issues which he now presents to this court becаuse he failed to raise them in his direct appeal. We agree with the State that post-conviction proceed- ings are not a substitute for a direct appeal and issues which could have been raised on direct appeal may not be raised in a post- conviction proceeding. Rhoton v. State (1991), Ind.App., 575 N.E.2d 1006, 1008, trans. denied; Combs v. State (1989), Ind., 537 N.E.2d 1177, 1179. Generally, allega- tions of error available but not asserted on direct appeal are waived for purposes of post-conviction relief. Rhoton, 575 N.E.2d at 1008. However, at no point during the post- conviction proceedings did the State raise the defense of waiver, neither did the post-con- viction court find waiver, rather, the State responded to and the court based its findings upon the merits of Robertson‘s argument which we must do as well. Dodson v. State (1987), Ind., 502 N.E.2d 1333, 1335; Richard- son v. State (1982), Ind., 439 N.E.2d 610, 612; see Mickens v. State (1991), Ind.App., 579 N.E.2d 615, 616-18 (review of waiver and res judicata defense as they apply to post-con- viction proceedings).
I.
Robertson first contends that the trial court exceeded its jurisdiction by amending the file-stamped date on the charging instru- ment. He argues that the original informa- tion misled him “as evidenced by his Motion to Dismiss and caused unfair surprise.” Ap- pellant‘s Brief at 19.
The charging information was file-stamped with a date of September 12, 1989, but ‘sworn to’ on October 6, 1989. On the morning of Robertson‘s trial, he motioned to dismiss the charges citing the defective information and the trial court‘s lack of jurisdiction. In con- sidering the motion, the trial judge stated:
The file stamp was mis-set for September because our filing indicates that it was all filed October 12th which was the Thursday before the October 13th bust.... Thus, apparently, the file stamp was inadvertent- ly set for September. It‘s changed every morning. The girl must have hit the month change instead of the date change because the original filed with the Court is scratched through and marked October. And all of our computer records indicate filing on October.
(R. at 156-57).3 The trial judge then altered the file stamp on Robertson‘s copy of the information to read October 12, 1989. In its conclusions of law, the post-conviction court found that the September stamp was an ad- ministrative error which had no bearing on conferring jurisdiction upon the court and “correcting the еrror to reflect the actual filing date was of no consequence or preju- dice to” Robertson. (P-CR R. at 115).
An information may not be amend- ed to change the theory of the case or the identity of the offense charged; however, it may be amended at any time to cure a defect if the substantial rights of the defendant are not prejudiced. Wright v. State (1992), Ind., 593 N.E.2d 1192, 1197, cert. denied U.S. , 113 S.Ct. 605, 121 L.Ed.2d 540. Al- though Robertson contends that the amend- ment to his charging document misled him and caused unfair surprise, he does not elab- orate on this contention. The change of date did not create a material variance between the charging information and the evidence adduced at trial. See Robinson v. State (1994), Ind.App., 634 N.E.2d 1367, 1372. A material variance, which requires reversal, must mislead the defendant in the prepara- tion of his defense or subject him to the likelihood of another prosecution for the same offense. Id.
Robertson has not shown how his de- fense would have changed had the file-stamp been initially correct and nothing in the rec- ord reflects undue surprise due to the mis- dated information. We note that Rоbert- son‘s counsel stated to the trial court that he only noticed the erroneous date the weekend before the trial. (R. at 155). In addition,
II.
Robertson next contends that the charging information was never “approved by” the prosecutor and thus the conviction is void. We do not agree.
III.
Robertson asserts that he was entitled to an instruction on possession of cocaine, an inherently included lesser offense of dealing cocaine.
The determination of the propri- ety of instructions on lesser included offenses involves two steps: first, we examine the statutes involved and the charging informa- tion; and second we examine the evidence to determine whether the facts would support the instruction. Compton v. State (1984), Ind., 465 N.E.2d 711, 713; Lawrence v. State (1978), 268 Ind. 330, 337, 375 N.E.2d 208, 213. Both of these steps must be satisfied before an instruction is proper. Compton, 465 N.E.2d at 713; Roddy v. State (1979), 182 Ind.App. 156, 162, 394 N.E.2d 1098, 1103. Here Robertson has failed to pass the first step. The information in this case shows that Robertson was charged with two counts of dealing in cocaine as a class A felony and one count of dealing in cocaine as a class B felony. The information closely tracks the statute and there is no doubt that the prose- cutor was not attempting to seek a conviction on a lesser included offense. As our su- preme court stated in Jones v. State (1982), Ind., 438 N.E.2d 972, 975, “the state through its drafting can foreclose as to the defendant, the tactical opportunity to seek a сonviction for a lesser offense. The point is that abso- lute discretion rests in the state to determine the crime[s] with which a defendant will be charged.” Thus, notwithstanding that the evidence in this case may have supported an instruction on a lesser offense, Robertson was not entitled to have the instructions giv- en to the jury. To do so would result in the possibility of a compromise verdict. Comp- ton, 465 N.E.2d at 713. We find that the trial court did not err in refusing to instruct the jury on lesser included offenses.
IV.
Robertson contends that the trial court erred when it refused to re-read a prelimi- nary instruction at the close of the case. We do not agree.
Ind.Appellate Rule 8.3(A)(7) pro- vides, in part, that: “When error is predicat- ed on the giving or refusing of any instruc- tion, the instruction shall be set out verbatim in the argument section of the brief with the verbatim objections, if any, made thereto.” Robertson has failed to include the tendered instruction in his Brief and has consequently waived any error. See Norris v. State (1986), Ind., 498 N.E.2d 1203, 1206.
Notwithstanding waiver, Robertson
argues that
Robertson next asserts that the trial court
improperly communicated with the jury dur-
ing its deliberations. When jurors request additional
guidance from the trial court, the proper
procedure is for the judge to notify the par-
ties so they may be present in court before
the judge communicates with the jury, and
the parties should be informed of the judge‘s
proposed response to the jury. Grey v. State
(1990), Ind., 553 N.E.2d 1196, 1198, reh‘g
denied. An inference of prejudice arises
from an ex parte communication and this
inference creates a rebuttable presumption
that error has been committed. Id. Com-
munications between the judge and the delib-
erating jury in defendant‘s absence are for-
bidden; however, such communications do
not constitute per se grounds for reversal.
Id. at 1199; Marsillett v. State (1986), Ind.,
495 N.E.2d 699, 709. When the trial court judge mere-
ly responds to a jury question by denying
their request, any inference of prejudice is
rebutted and any error is deemed harmless.
Grey, 553 N.E.2d at 1199. In this case, the
post-conviction court noted that during delib-
erations, the jury sent a written inquiry to
the trial court. The jury asked if they were
allowed to recommend leniency regarding
sentencing. The judge answered, “No. You
cannot make any recommendations.” (R. at
1031). Thus, the judge responded to the
jury question by denying their requеst, and
the post-conviction court was correct in con-
cluding that the trial court‘s response was
harmless error.4 Robertson next contends that the post-
conviction court erred when it found that the
trial court held an in camera hearing regard-
ing the address of a confidential informant. Prior to trial, the State filed a motion in
limine requesting that Robertson be denied
inquiry as to the residence of the confidential
informant. At the start of the trial, the
judge noted the State‘s motion, Robertson‘s
counsel stated: “And we have no prоblem
with that,” and the trial judge granted the
motion. (R. at 151). At the post-conviction
proceeding, Robertson complained that the
trial court erred by not conducting an in
camera hearing before granting the State‘s
motion, and this failure amounted to revers-
ible error. The post-conviction court, in its
findings of fact and conclusions of law, found
that a hearing on the State‘s motion was
held. In his brief, Robertson argues that the
record is “completely devoid of any such
hearing and the State has presented no docu-
mentary evidence to refute [his] claim.” Pe-
titioner‘s Brief at 26. We, however, need not decide the propri-
ety of the post-conviction court‘s findings and
conclusions because our review of the record
reveals that this issue is not properly before
us. The issue of the disclosure of the confiden-
tial informant‘s residence was the subject of
a motion in limine which the trial court
granted without objection from Robertson.
Without an objection, the trial court had no
reason to hold a hearing or inquire further A motion in limine serves as a
protective order against prejudicial questions
and statements which might arise during tri-
al and the trial court has inherent discretion-
ary power to grant such a motion. Hare v.
State (1984), Ind., 467 N.E.2d 7, 13. The
pretrial grant of a motion in limine is not a
final ruling upon the ultimate admissibility of
evidence, rather it is meant to protect
against potential prejudicial matters coming
before the jury until the trial court has the
opportunity to rule upon its admissibility in
the context of the trial itself. Id. “As a
preliminary ruling, the grant of a motion in
limine is not itself reviewable on appeal...
To preserve error, a party, out of the hearing
of the jury, must propose to ask a certain
question at trial and have the court prohibit
it. Failure to offer the excluded material
constitutes waiver of the issue.” Rohrkaste
v. City of Terre Haute (1984), Ind.App., 470
N.E.2d 738, 741, reh‘g denied, trans. denied.
In the present case, Robertson did not object
to the grant of the motion in limine prior to
trial and failed to make an offer to prove
during the course of the trial. Consequently,
this issue is waived. Robertson next contends that he was
placed in grave peril when the State improp-
erly elicited irrelevant testimony from the
confidential informant. During trial, the fol-
lowing testimony was heard: State: Why do you no longer live in New
Albany? Confidential Informant: Because it would
be hazardous to my health to live in New
Albany. State: What do you mean? Confidential Informant: There would be
people that would hurt me or kill me.... State: Who are you afraid of? Confidential Informant: Every, I‘m afraid
of the peоple that aren‘t in jail yet. (R. at 440-442). Robertson argues that be-
cause he was not in jail yet, “this prejudicial
threat testimony placed” him in grave peril.
Petitioner‘s Brief at 29. Assuming arguendo, that the admis-
sion of this testimony was error, not all trial
errors compel reversal. Wickizer v. State
(1993), Ind., 626 N.E.2d 795, 800. No error
in the admission of evidence is grounds for
setting aside a conviction unless such errone-
ous admission appears inconsistent with sub-
stantial justice or affects the substantial
rights of the parties. To decide if the erroneous admis-
sion of prejudicial evidence of extrinsic of-
fenses is harmless, we examine whether the
jury‘s verdict was substantially swayed.
Hardin v. State, (1993), Ind., 611 N.E.2d 123,
132. On direct appeal, we found: The evidence of Robertson‘s guilt of each
of the three counts is so overwhelming as
to convince us that any error created by
the reference [to his counsel‘s affiliations]
was harmless beyond a reasonable doubt.
The police informant who arranged the
transactions with the defendant on behalf
of the undercover officer testified that on
the three occasions charged she observed
the defendant deliver to the police officer
what appeared to her to be cocaine and
witnessed the officer pay the defendant
cash for the contraband. The police offi-
cer who actually purchased the cocaine
from thе defendant on each of the charged
occasions testified concerning the details of
the transactions in the manner consistent
with that of the informant. Of course, the
State established a chain of custody for the
exhibits containing the contraband and of-
fered evidence that the substances deliv-
ered were in part cocaine. Robertson contends that his sen-
tence is manifestly unreasonable in light of
the decision in Beno v. State (1991), Ind., 581
N.E.2d 922. The post-conviction court deter-
mined that Beno did not apply to this case
because the trial court did not impose both
maximum and consecutive sentences for the
convictions. We do not agree. Robertson received two sentences of thir-
ty-five years, and a ten-year sentence to be
served consecutively for thrеe convictions of
dealing in cocaine. The charges were based
on three separate police controlled buys of
cocaine over a four-month period in three
different locations initiated and executed by
the same confidential informant and police
officer. In Beno, the supreme court held that con-
secutive sentences were manifestly unreason-
able where the state sponsors a series of
offenses in a sting operation. Id. at 924.
There, the defendant was convicted of selling
cocaine to a police informant on two occa-
sions within a four day period. The buys
were virtually identical, involving the same
drug and the same informant. The trial
court enhanced both sentences and ordered
them to run consecutively. The supreme
court revised the sentence to two enhanced
terms of imprisonment to run concurrently.
Id. As in Beno, Robertson sold the
same drug to the same police officer, ar-
ranged by the same informant, on several
occasions over a relatively short period of
time. The controlled crimes were committed
as a result of a police sting. See Gregory v.
State (1994), Ind., 644 N.E.2d 543, 546;
Grimes v. State (1994), Ind.App., 633 N.E.2d
262, 265 (Beno analysis applied to consecu-
tive sentences although the sales were sepa-
rated by a month and the amount sold in-
creased for the second buy. Both sales were
sponsored by the State and were for the
same substance.). Presumably, the police could have set up
any number of additional transactions,
each time adding an additional count
against [the defendant]. While the police
may find it necessаry to conduct a series of
buys, the trial court should be leery of
sentencing a defendant to consecutive
terms for each count. We hold that on
these facts, a sentence of 120 years was
inappropriate. Gregory, 644 N.E.2d at 546. Accordingly,
the consecutive sentences were inappropriate
in the present case under the Beno analysis
and must be reversed.5 Robertson asserts that the trial court
erred by not asking the jury if the tornado
that interrupted the trial, affected its ability
to decide the case. He also suggests that the
judge may have sufferеd from post traumatic
stress after the storm. Robertson contends that “the trial
judge should have, at the very least, conduct-
ed a modified Lindsey type voir dire when
the jury returned from the basement.” Peti-
tioner‘s Brief at 35; see Lindsey v. State
(1973), 260 Ind. 351, 358-59, 295 N.E.2d 819,
821-24. However, Lindsey dealt with a jury
which was exposed to improper and prejudi-
cial publicity during the trial. Lindsey also
contemplated a defense motion to interrogate Finally, Robertson contends that he re-
ceived ineffective assistance of trial and ap-
pellate counsel. As a general rule, ineffective assis-
tance of counsel is an issue known and avail-
able at the time of the direct appeal. Burris
v. State (1992), Ind.App., 590 N.E.2d 576,
578, trans. denied. If trial counsel and ap-
pellate counsel are different, as in this case,
appellate counsel has the first opportunity to
present the issues, and failure to do so will
generally be held a waiver of the issue. Id.
To avoid waiver, a petitioner may argue that
appellate counsel was ineffective in that he
failed to raise ineffective assistance of trial
counsel. This is the narrow category into
which Robertson‘s ineffective assistance ar-
gument must fall. When reviewing a claim of inef-
fective assistance of counsel, we initially pre-
sume that counsel‘s representation was with-
in the wide range of reasonable professional
assistance. Geans v. State (1993), Ind.App.,
623 N.E.2d 435, 437. To determine whether
a defendant has received ineffective assis-
tance, we ascertain whеther counsel‘s repre-
sentation fell below professional norms and
whether the substandard performance was so
prejudicial that the defendant was deprived
of a fair trial. Strickland v. Washington
(1984), 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674, reh‘g denied; Hilliard v. State
(1993), Ind.App., 609 N.E.2d 1167, 1169. We
look to the totality of the evidence to deter-
mine whether the defendant was prejudiced,
and ask if there is a reasonable probability
that the outcome would have been different,
but for counsel‘s errors. Id. Robertson first argues that his ap-
pellate counsel was ineffective for failing to
raise ineffective assistance of trial counsel.
He contends that trial counsel‘s failure to
object to the State‘s motion in limine and the
trial court‘s granting of that motion amount-
ed to ineffective assistance. However, even
assuming that trial counsel‘s inaction
amounted to more than isolated poor strate-
gy, Robertson has failed to demonstrate that
he was prejudiced by his inability to ask the
confidential informant where she lived, or
that such information would result in a rea-
sonable probability that the outcome would
have beеn different, but for counsel‘s errors.
We find no error here. Robertson also argues that his ap-
pellate counsel failed to review the record
and raise the “significant and obvious issues
set forth now.” Petitioner‘s Brief at 39.
However, an appellant does not have a con-
stitutional right to have every possible issue
raised on appeal. Smith v. State (1985), Ind.,
475 N.E.2d 1139, 1144, reh‘g denied. Fur-
ther, as shown in our prior discussion, Rob-
ertson‘s claims of trial errors do not consti-
tute reversible error, thus, his argument re-
garding ineffective assistance of counsel to
raise thesе errors must likewise fail. The post-conviction court is affirmed as to
all matters except the consecutive sentences.
This cause is remanded to the post-conviction
court with instructions to modify Robertson‘s
sentencing judgment to order that his sen-
tences on Counts I, II, and III be served
concurrently, after which the judgment is
affirmed in all matters. SHARPNACK, C.J., concurs. GARRARD, J., concurs in result with
separate opinion. In issue III the majority determines that it
was not error to refuse Robertson‘s instruc-
tion on possession as a lesser included of-
fense because he was charged with dealing.
Jones v. State to the сontrary notwithstand-
ing, it continues to elude me how in reason or
logic it can be said that an “inherently includ-
ed offense” is somehow not inherently includ-
ed in the offense which is charged. On the
other hand, numerous decisions have held
that it is not error to refuse to instruct on
the lesser offense where there is no substan-
tial dispute concerning the existence of the
element which distinguishes the greater of-
fense from the lesser. See, e.g., Lawrence v.
State (1978) 268 Ind. 330, 375 N.E.2d 208.
In Robertson‘s case no such substantial dis-
pute can be said to have existed. I therefore
concur in the result reached on this issue. Concerning issue IV, I concur with the
majority‘s determination that the issue has
been waived for failure to comply with the
appellate rules, specifically AR 8.3(A)(7).
The preliminary instruction in question ap-
parently concerned the jury‘s function to de-
termine the facts and law. If the court were
properly requested to reread the preliminary
instructions and the one in question correctly
stated the law, I believe Criminal Rule 8(G)
requires the court to repeat it as part of the
final instructions. I concur with the majority on the other
issues, although I lament the expenditure of
judicial time and resources to treat issues
that are beyond the spirit of the rules for
post-conviction relief and which PCR 1, Sec.
8 would deem waived had the office of the
prosecuting attorney asserted waiver in its
answer to the petition. GARRARD, JudgeV.
VI.
VII.
VIII.
IX.
X.
CONCLUSION