UNITED RURAL ELECTRIC MEMBERSHIP CORPORATION, Appellant-Plaintiff, v. INDIANA MICHIGAN POWER COMPANY, Appellee-Defendant.
No. 17A03-9303-CV-104.
Court of Appeals of Indiana, Third District.
March 27, 1995.
648 N.E.2d 1194
Id. at 562. Here, the minute sheets and evidence of the convictions sufficiently establish the proper order of the commission of the offenses.
Finally, Clark contends that he was denied the effective assistance of trial and appellate counsel. Reversal for ineffective assistance of counsel is appropriate when a defendant demonstrates both that counsel‘s performance fell below an objective standard of reasonableness and that the deficient performance so prejudiced defendant as to deprive him of a fair trial. Bellmore, 602 N.E.2d at 123. The Bellmore court noted:
“A claim of ineffective assistance must identify the claimed errors of counsel so that the court may determine whether, in light of all circumstances, counsel‘s actions were outside the range of professionally competent assistance. The proper measure of attorney performance is reasonableness under prevailing professional norms. It shall be strongly presumed that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Judicial scrutiny of counsel‘s performance is highly deferential and should not be exercised through the distortions of hindsight. Isolated poor strategy, inexperience, or bad tactics do not necessarily amount to ineffectiveness of counsel. If deficient performance of counsel can be proven, defendant must further show a reasonable probability that it altered the outcome of the case.”
Id. at 123. The same standard applies to both trial and appellate counsel. Thornton v. State (1991), Ind., 570 N.E.2d 35, 37.
As noted above, none of the alleged deficiencies raised by Clark on post-conviction rose to the level of reversible error. Clark‘s contentions specific to ineffective assistance of counsel amount to complaints regarding strategy or tactics without demonstrating an effect on the outcome of the trial or the result of his first appeal. Review of the record demonstrates adequate trial preparation including vigorous examination and cross-examination by trial counsel. Further, appellate counsel raised and argued viable issues. Clark has not demonstrated ineffective assistance of counsel.
The denial of post-conviction relief is affirmed.
Affirmed.
GARRARD and BAKER, JJ., concur.
Jerry P. Belknap, Stanley C. Fickle, Brian J. Martin, and Jan M. Carroll, Barnes & Thornburg, Indianapolis, and Greg Clark, Fort Wayne, for appellee.
OPINION
HOFFMAN, Judge.
Appellant-plaintiff United Rural Electric Membership Corporation (United REMC) appeals from the denial of its motion for summary judgment and the grant of summary judgment in favor of appellee-defendant Indiana Michigan Power Company (I & M). The designated facts relevant to this appeal are set forth below.
United REMC is a distribution cooperative engaged in retail sale of electricity in various counties in northern Indiana. I & M is an investor-owned utility also serving portions of northern Indiana.
In 1980, the Indiana legislature enacted the Electricity Suppliers Service Area Assignment Act (codified at
Prior to the Act, United REMC had exclusively furnished retail service to the area which is the subject of this dispute, a 960-acre tract of land located in Allen County. Shortly after the Act took effect, I & M and United REMC, geographically adjacent suppliers, agreed upon a boundary line between their supply areas allowing United REMC to maintain exclusive control over the 960-acre tract of land (service area). On June 28, 1982, the two suppliers filed a joint petition with the public service commission of Indiana (“Commission“)1 which embodied the above agreement.
The Commission held a public hearing on the joint petition on September 1, 1983. However, the Commission failed to enter an order on the petition. In 1984, while the petition was still pending, General Motors announced its intention to build a truck assembly plant in northern Indiana, specifically within the service area.
In August 1984, after request by General Motors for it to furnish electricity to the plant, I & M filed a petition with the Commission seeking modification of the service area. After a series of public hearings, the Commission entered an order assigning the area of the proposed General Motors plant to I & M. United REMC pursued an appeal which resulted in a reversal of the Commission‘s order by our supreme court on February 6, 1990. See United Rural Elect. v. Ind. & Mich. Elec. (1990), Ind., 549 N.E.2d 1019.
Thereafter in October 1990, United REMC filed a claim against I & M pursuant to
United REMC raises two issues on appeal which we consolidate into one: whether the trial court erred by entering summary judgment in favor of I & M.
United REMC claims the trial court improperly denied its motion for summary judgment and granted summary judgment in favor of I & M. The purpose of summary judgment is to terminate litigation for which there can be no factual dispute and which can be determined as a matter of law. Chambers v. American Trans Air, Inc. (1991), Ind.App., 577 N.E.2d 612, 614, trans. denied. Summary judgment is appropriate if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. This Court‘s standard of review is the same as that used by the trial court: whether there is a genuine issue of fact and whether the moving party is entitled to judgment as a matter of law. State Bd. of Tax Com‘rs v. New Energy Co. (1992), Ind.App., 585 N.E.2d 38, 39, trans. denied. Summary judgment will be affirmed on appeal if it is sustainable on any theory or basis found in the evidentiary matter designated to the trial court. Ind. Trial Rule 56(C).
It is undisputed that General Motors was scheduled to open its plant in November 1985. At that time, United REMC was not in a position to supply the plant with electric service, and General Motors had concerns about its ability to do so in the future. When I & M was approached by General Motors to provide the necessary service, I & M explained to General Motors that it could provide service for the plant only if authorized to do so by the Commission. Acting in good faith and complying with the law, I & M did not supply service to the General Motors plant until after petitioning the Commission for and successfully receiving a modification of the service area.
United REMC‘s argument that “gross revenues” are owing under
“The theory that a law held unconstitutional is no law at all and void abinitio for all purposes, including retroactive invalidity, runs counter to the hard facts of life. The actual existence of a statute prior to a determination of invalidity is an operative fact. Because of such de facto existence and reliance upon its validity, it has practical consequences which cannot be justly ignored. The past cannot always be erased by a simple judicial decree.”
(Emphasis original.) In a similar vein, at all times relevant to this dispute, I & M acted within the boundaries of the law and under the color and apparent legal authority of the Commission when it provided electric service to the General Motors plant. Immediately after receiving notice of the invalidity of the Commission‘s order, I & M promptly attempted to relinquish the service area to United REMC. Also, when United REMC filed its complaint, I & M had already stopped rendering or extending retail electric service to the General Motors site.
That the Commission‘s order was later invalidated by our supreme court does not render I & M‘s actions retroactively “unlawful” for purposes of recovery under
For the above-stated reasons, I & M is entitled to summary judgment as a matter of law. There being no error, the decision of the trial court is affirmed.
Affirmed.
GARRARD, J., concurs.
STATON, J., concurs in result with opinion.
STATON, Judge, concurring in result.
The rationale employed by the Majority is wide of the mark. The bullseye is a statutory interpretation in the light of United Rural Elect. v. Ind. & Mich. Elec. (1990), Ind., 549 N.E.2d 1019, reh. denied. Color of law rationale is a plausible rationale, but it is not the most applicable. Here the statute,