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Johnson v. State

Court of Appeals of Indiana

May 31, 2018

Matthew Johnson, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal from the Tippecanoe Superior Court The Honorable Steven P. Meyer, Judge Trial Court Cause No. 79D02-1407-PC-5

          ATTORNEY FOR APPELLANT Stephen T. Owens Public Defender of Indiana J. Michael Sauer Deputy Public Defender Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

          May, Judge.

         [¶1] Matthew Johnson appeals the denial of his petition for post-conviction relief. He argues the post-conviction court erred when it rejected his allegation that his appellate counsel was ineffective for failing to argue the application of the Proportionality Clause to Johnson's conviction of Class B felony aggravated battery. We affirm.

         Facts and Procedural History

         [¶2] On July 20, 2011, the trial court found Johnson guilty of Class B felony aggravated battery, [1] Class C felony battery, [2] Class B felony possession of methamphetamine, [3] Class C felony possession of methamphetamine, [4] and Class C felony possession of chemical reagents or precursors with intent to manufacture controlled substances.[5] The trial court also found Johnson was a habitual substance offender.[6] On September 30, 2011, the trial court sentenced Johnson to fifteen years for Class B felony aggravated battery to be served consecutive to fifteen years for Class B felony possession of methamphetamine, which was enhanced by five years by virtue of Johnson's habitual substance offender adjudication, for an aggregate sentence of thirty-five years incarcerated.[7]

         [¶3] On appeal, Johnson's appellate counsel raised four issues:

(1) whether the court abused its discretion by denying his motion to sever the drug-related charges; (2) whether the court abused its discretion by refusing to add language to the self-defense instruction; (3) whether the court abused its discretion by refusing to instruct the jury regarding defenses to the drug charges; and (4) whether the sentence was inappropriate.

(App. Vol. II at 127.) We affirmed Johnson's convictions and sentence. Johnson v. State, Cause No. 79A02-1110-CR-991 (Ind.Ct.App. Sept. 21, 2012).

         [¶4] On July 16, 2014, Johnson filed a pro se petition for post-conviction relief. On December 15, 2016, Johnson, with the aid of counsel, filed an amended petition for post-conviction relief. Johnson argued his appellate counsel was ineffective for failing to argue on appeal that Johnson's conviction of Class B felony aggravated battery violated the Proportionality Clause. The post-conviction court held an evidentiary hearing on the petition on August 2, 2017. On October 27, 2017, the post-conviction court denied Johnson's petition.

         Discussion and Decision

         [¶5] A post-conviction petition is not a substitute for an appeal, nor does it afford a petitioner a "super appeal." Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006). Post-conviction proceedings afford petitioners a limited opportunity to raise issues that were unavailable or unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002), reh'g denied, cert. denied, 537 U.S. 1122 (2003). As post-conviction proceedings are civil in nature, the petitioner must prove his grounds for relief by a preponderance of the evidence. Id. A party appealing a post-conviction judgment must establish that the evidence is without conflict and, as a whole, unmistakably and unerringly points to a conclusion contrary to that reached by the post-conviction court. Id. Where, as here, the post-conviction court makes findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we do not defer to the court's legal conclusions, but "the findings and judgment will be reversed only upon a showing of clear error-that which leaves us with a definite and firm conviction that a mistake has been made." Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (internal quotation and citation omitted), reh'g denied, cert. denied, 534 U.S. 830 (2001).

         [¶6] We review claims of ineffective assistance of appellate counsel using the same standard applicable to claims of trial counsel ineffectiveness. Fisher v. State, 810 N.E.2d 674, 676-7 (Ind. 2004). The defendant must show that appellate counsel was deficient in his performance and that the deficiency resulted in prejudice. Id. at 677. A claim of ineffective appellate assistance generally falls into one of three categories: (1) denial of access to an appeal; (2) waiver of issues; or (3) failure to present issues well. Id. We employ a two-part test to evaluate "waiver of issue" claims: (1) whether the unraised ...


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