JAMES R. WILLEY, Appellant-Petitioner,
STATE OF INDIANA, Appellee-Respondent
These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
APPEAL FROM THE BOONE SUPERIOR COURT. The Honorable Matthew C. Kincaid, Judge, The Honorable Gary Miller, Senior Judge. Cause No. 06D01-0903-PC-98.
ATTORNEYS FOR APPELLANT: STEPHEN T. OWENS, Public Defender of Indiana; WILLIAM D. POLANSKY, Deputy Public Defender, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; JUSTIN F. ROEBEL, Deputy Attorney General, Indianapolis, Indiana.
VAIDIK, Chief Judge. RILEY, J., and MAY, J., concur.
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Chief Judge.
In this post-conviction appeal, James R. Willey raises a number of claims regarding the effectiveness of his trial and appellate counsel. We reject all of Willey's contentions but one--his claim that his convictions for conspiracy to commit burglary and felony murder violate Indiana's constitutional prohibition against double jeopardy, and trial and appellate counsel were ineffective for failing to raise this argument. In light of our Supreme Court's holding in
Grinstead v. State, 845 N.E.2d 1027 (Ind. 2006), we must agree, and therefore vacate his fifty-year sentence for conspiracy to commit burglary. We affirm in part and reverse in part.
Facts and Procedural History
In 1997, Janice Willey was strangled and bludgeoned to death in her detached garage. After an investigation, her ex-husband, James Willey, was charged with five counts related to her murder: (I) conspiracy to commit aggravated battery; (II) conspiracy to commit burglary; (III) involuntary manslaughter; (IV) felony murder; and (V) burglary. At trial, the State alleged that Willey had arranged for a friend, Roger Barnard, to kill Janice while Willey was in Florida. Barnard was not charged for his role in the crime because he committed suicide shortly after Janice's death. In June 1997, a jury found Willey guilty of all charges.
The trial court sentenced Willey on Counts II and IV only, merging the other counts. Willey received a fifty-year term for Count II, conspiracy to commit burglary, and a sixty-five-year term for Count IV, felony murder, to be served consecutively. On direct appeal, our Supreme Court affirmed Willey's convictions and sentences.
See Willey v. State, 712 N.E.2d 434 (Ind. 1999).
In March 2000, Willey filed his first petition for post-conviction relief, and the trial court granted a stay one month later. Willey withdrew that petition in 2003. In early 2003, proceeding pro se, Willey filed a second petition for post-conviction relief. Five years of inactivity followed until August 2008, when the trial court held a hearing on discovery requests filed by Willey. In March 2009, Willey refiled his petition and a public defender was assigned to his case. A second stay was granted. In 2012, Willey filed an amended petition in Boone Superior Court.
In his petition, Willey claimed he received ineffective assistance of trial and appellate counsel. In relevant part, Willey claimed counsel were ineffective for: (1) failing to raise a double-jeopardy claim based on Indiana law; (2) failing to challenge the burglary-related charges based upon evidence that he and Barnard had consent to enter the garage; and (3) failing to object to the burglary jury instruction. See Appellant's App. p. 63-69. The State responded and raised laches as an affirmative defense.
Id. at 74-75.
The post-conviction court held a hearing on Willey's petition in November 2012. Willey offered a number of exhibits, including the record from his direct appeal and depositions of trial and appellate counsel. Willey also called two witnesses, Charles Boyle and Mike Juillerad, who testified that Janice had given Willey control over the garage. See Tr. p. 27 (Boyle testifying that Willey controlled the garage after he moved out of the marital home), 36 (Juillerad testifying that Willey controlled the garage in 1995, two years before Janice's death).
The State also called the Zionsville Chief of Police, Rob Knox. Chief Knox was a detective in 1997, and he had been assigned to investigate Janice's murder.
Id. at 88-89. Chief Knox testified that a number of people involved in Willey's trial would be unavailable if Willey was retried. Former Sherriff Ernie Hudson, who took pretrial statements from Willey and testified about those statements at trial, was ill and living in another state.
Id. at 90. And Phyllis Phenis, Janice's best friend, who had testified that Willey had threatened Janice, was deceased.
Id. at 94. Chief Knox said that he believed it would be very difficult to prosecute Willey again.
Id. at 97-98.
The post-conviction court denied Willey's request for relief. The court concluded that the State had met its burden in pleading laches, explaining that Willey had knowledge of post-conviction procedures and access to legal-research materials as early as 2000, but he did not proceed on his petition until 2012. See Appellant's App. p. 305-06. The court also found that the State was prejudiced by Willey's delay because the unavailability of two witnesses, Hudson and Phenis, materially diminished the State's ability to retry Willey.
Id. at 306-07. The court also noted Chief Knox's opinion that it would be very difficult to retry Willey. Despite finding that laches ...