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01/12/88 BASIL BRADFORD v. STATE INDIANA

Filed: January 12, 1988.

BASIL BRADFORD, PETITIONER-APPELLANT
v.
STATE OF INDIANA, RESPONDENT-APPELLEE



APPEAL FROM THE WAYNE SUPERIOR COURT I, Cause No. S1-84-2998-CR, The Honorable J. Brandon Griffis, Judge.

Ratliff, C.j. and Buchanan, J. Concur.

Author: Neal

NEAL, J.

STATEMENT OF THE CASE

Petitioner-appellant, Basil Bradford (Bradford), appeals the decision of the Wayne Superior Court I denying his petition for post-conviction relief.

We affirm.

STATEMENT OF THE FACTS

On January 13, 1984, Bradford was charged by Information with burglary, a Class B felony. He was tried by a jury and convicted on April 17, 1984. The evidence showed that a witness observed Bradford, clad in a ski mask, approach and enter through a window, a first-floor apartment in Richmond, Indiana. The witness subsequently called the police who captured Bradford inside the apartment. Bradford was placed under arrest and informed of his Miranda rights. Nothing had been removed from the apartment. However, a decorative glass with flowers had been moved from a stereo, a speaker upon which the silk flowers were resting had been moved, and the stereo antenna had been disconnected.

Bradford admitted the foregoing, but explained that he was cold and entered the apartment to warm himself. After doing so he left, but subsequently returned after discovering that he had left his keys at the apartment. He re-entered the apartment and was attempting to leave when the police arrived. After offering this exculpatory story, he was questioned by the prosecutor. During questioning the prosecutor asked Bradford if he had told the police he was in the apartment because it was cold. Trial counsel did not register an objection to this testimony, nor did appellate counsel raise it as error on direct appeal.

Bradford filed a pro se petition for post-conviction relief on September 26, 1985. His counsel filed an amended petition on July 16, 1986, alleging, inter alia, that Bradford's trial counsel rendered ineffective assistance by failing to object when the prosecutor commented on Bradford's post-arrest silence. The petition also alleged ineffective assistance on behalf of appellate counsel for failing to raise the adequacy of trial counsel as error. On July 16, 1987, following an evidentiary hearing, the post-conviction court denied Bradford's request for relief, finding that he failed to establish that he was prejudiced by either trial or appellate counsel's performance. Bradford subsequently instituted this appeal.

ISSUE

Whether the post-conviction court erred in determining that Bradford received effective assistance of trial and appellate counsel.

Discussion AND DECISION

Bradford argues that he received ineffective assistance of counsel. The standard for judging the adequacy of counsel's performance is that of reasonably effective assistance. In order to prevail on his claim, Bradford must prove by a preponderance of the evidence that counsel's performance was deficient and that his defense was prejudiced by the deficient performance. Strickland v. Washington (1984), 466 U.S. 668. Judicial scrutiny of counsel's performance is highly deferential. It should not be exercised by second-guessing counsel's actions after learning they may not have been appropriate. There is a strong presumption that counsel's assistance fell within prevailing professional norms, and an appellant is required to present strong and convincing evidence to rebut that presumption. Strickland, ...


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