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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE: ALTON L. TAYLOR Michigan City, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ALTON L. TAYLOR, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 62A05-0511-PC-639

APPEAL FROM THE PERRY CIRCUIT COURT The Honorable James A. McEntarfer, Judge Cause No. 62C01-0108-PC-308

August 24, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Alton Taylor appeals the denial of his petition for post-conviction relief. We affirm in part, vacate in part, and remand. Issues Taylor presents a variety of issues, which we reorganize and restate as follows: I. Whether his sentence constituted vindictive sentencing, cruel and unusual punishment, disproportionate sentencing, and/or double jeopardy; and Whether he received effective assistance of trial and appellate counsel. Facts and Procedural History In an opinion issued twenty years ago, our supreme court set out the relevant facts in Taylor's case: On May 10, 1981, Marcia Sanders was driving from St. Louis, Missouri en route to St. Mary's, Kentucky. Along the way she picked up a hitchhiker. After driving for approximately two and one half hours, the hitchhiker put a knife to Sanders's side and forced her to exit Interstate 64 near St. Croix, Indiana. While verbally threatening her and still holding the knife at her side, he directed her to an abandoned barn. He then forced her into the barn, attempted anal intercourse, and raped her. Following the rape he beat her severely with a board, left her for dead and drove away in her car. Sanders managed to make her way to the road after regaining consciousness and was found by a passing motorist. On November 14, 1981, Sanders's car was located in Tell City, Indiana in [Taylor's] possession. He was arrested on a charge of possession of stolen property as well as on other unrelated charges. Sanders positively identified [Taylor] at a line-up and at trial as the hitchhiker who attacked her. Taylor v. State, 515 N.E.2d 1095, 1096 (Ind. 1987). On November 18, 1981, the State charged Taylor with rape, criminal confinement, attempted criminal deviate conduct, robbery, attempted murder, battery, and theft. Exhs.

II.

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Vol. 1 at 15-23. In December 1981, the battery and theft charges were dismissed, and the State amended the attempted murder and the robbery charges. Id. In the spring of 1982, Taylor pled guilty to the remaining five charges and received a 220-year prison sentence. Id. at 88-90. On March 12, 1985, Taylor filed a petition for post-conviction relief, alleging that his guilty pleas were "unknowing, unintelligent and hence also involuntary." Id. at 113, 103-27. In August 1985, the court granted Taylor's petition for post-conviction relief and appointed attorney Gerald Thom to represent him. Thom filed a speedy trial motion on August 14, 1985. Taylor's jury trial began on October 8, 1985, and ended three days later when the jury found him guilty on all counts. The following month, the court ordered enhanced and consecutive sentences totaling 220 years. In January 1986, Taylor filed a motion to correct error, which was denied by the trial court. Thereafter, Taylor, still represented by Thom, filed a direct appeal, raising five issues: (1) whether the State's delay in providing the criminal history of one of its witnesses entitled appellant to a continuance; (2) whether the trial court erred by failing to grant appellant a continuance to subpoena radio transcripts and in denying appellant's motion for change of venue due to prejudicial pre-trial publicity; (3) whether the trial court erred by permitting the State to introduce into evidence photographs of a line-up which included the court's bailiff; (4) whether the trial court erred by failing to grant appellant a mistrial or a continuance when the State's chief witness testified she had been hypnotized; and (5) whether the trial court erred in its sentencing determination. Taylor, 551 N.E.2d at 1096. In its opinion issued December 3, 1987, our supreme court affirmed the trial court. Id. at 1099. On August 2, 2001, Taylor filed a petition for post-conviction relief, this time alleging: (a) ineffective assistance of trial counsel "resulting in violations of the Fifth, Sixth,
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Eighth and Fourteenth Amendments" and violations of Article I, Sections 12, 14, 16, and 18 of the Indiana Constitution; and (b) "Trial Court error. Prosecutrix's hypnotically enhanced identification was unduly suggestive and improperly admitted into evidence inasmuch as no identification of [Taylor] occurred prior to the hypnosis." Appellant's App. at 147-48. Later that same month, the State filed its response, denying certain allegations, asserting insufficient information regarding other allegations, and raising laches, waiver, and prior adjudication. Id. at 144-45. On April 18, 2002, the State filed a motion for summary judgment, which the court granted in part in August 2002. Id. at 122-29, 90-116. On February 11, 2003, Taylor filed an amended verified petition for post-conviction relief, which added sentencing issues within the claims of ineffective assistance and trial court error. Id. at 75-84. On October 24, 2003, the court held a brief hearing regarding the amended post-conviction petition. PCR Hearing Tr. at 1-16. On September 8, 2005, the court issued findings of fact, conclusions of law, and judgment denying Taylor's petition. App. at 24-30. After various extensions and amendments, Taylor now appeals the denial of his petition for post-conviction relief. Discussion and Decision Standards of Review At the outset, we note that pro se litigants, such as Taylor, "are held to the same standard as trained counsel and are required to follow procedural rules." Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. "This has consistently been the standard applied to pro se litigants, and the courts of this State have never held that a trial court is required to guide pro se litigants through the judicial system." Id.
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A defendant who has exhausted the direct appeal process may challenge the correctness of his convictions and sentence by filing a post-conviction petition. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Post-conviction procedures do not offer an opportunity for a super-appeal, but instead create a narrow remedy for subsequent collateral challenges to convictions that must be based on grounds enumerated in the post-conviction rules. Id. "[P]ost-conviction proceedings provide defendants the opportunity to raise issues that were not known at the time of the original trial or that were not available to the defendant on direct appeal." Conner v. State, 711 N.E.2d 1238, 1244-45 (Ind. 1999). As a general rule, when an issue is decided on direct appeal, the doctrine of res judicata applies, thereby precluding its review in post-conviction proceedings. Lowery v. State, 640 N.E.2d 1031, 1037 (Ind. 1994). Issues that were available, but not presented, on direct appeal are forfeited on post-conviction review. Id. Post-conviction proceedings are civil proceedings, thus a defendant must establish his claims by a preponderance of the evidence. Stevens, 770 N.E.2d at 745. Therefore, Taylor, appealing from a negative judgment, must show that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. See Reynolds v. State, 783 N.E.2d 357, 358-59 (Ind. Ct. App. 2003). In other words, Taylor must convince us that there is no way within the law that the court below could have reached the decision it did. Stevens, 770 N.E.2d at 745-46. Although we do not defer to the post-conviction court's legal conclusions, we accept its factual findings unless they are clearly erroneous. Id. at 746. I. Sentencing Issues Taylor raises a variety of sentencing issues: whether his sentence constituted
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vindictive sentencing, cruel and unusual punishment, disproportionate sentencing, and/or double jeopardy. "The propriety of a defendant's sentence, however, is not properly questioned through collateral proceedings." Reed v. State, 866 N.E.2d 767, 768 (Ind. 2007) (citing Collins v. State, 817 N.E.2d 230, 232-33 (Ind. 2004), and Allen v. State, 749 N.E.2d 1158, 1163 (Ind. 2001)). We reiterate that only issues not known at the time of the original trial or issues not available on direct appeal may be properly raised through post-conviction proceedings. Reed, 866 N.E.2d at 768 (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000)); see also Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002) ("In post-conviction proceedings, complaints that something went awry at trial are generally cognizable only when they show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal."). On direct appeal, Taylor challenged his sentence, asserting that the trial court did not consider all the criteria listed in the former sentencing statute. Our supreme court found otherwise. To the extent that any of Taylor's current sentencing claims mirror the one rejected on direct appeal, they are barred by the doctrine of res judicata. As for those freestanding sentencing claims he raises for the first time on post-conviction, they are procedurally defaulted or waived for not having been presented in a timely manner. See Wallace v. State, 820 N.E.2d 1261, 1264 (Ind. 2005); see also Wrinkles v. State, 749 N.E.2d 1179 (Ind. 2001) (noting certain issues would only be addressed in the context of ineffective assistance of counsel). In response to Taylor's attempted invocation of the fundamental error doctrine in his reply brief, we emphasize that the fundamental error doctrine's "availability as an exception to the waiver rule in post-conviction proceedings is generally limited to"
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ineffective assistance and/or issues demonstrably unavailable at trial and direct appeal. Canaan v. State, 683 N.E.2d 227, 235 n.6 (Ind. 1997). As such, it is of no avail here. II. Effective Assistance of Counsel Taylor challenges the effectiveness of Thom, who acted as both his trial and appellate counsel. A. Trial Counsel Taylor asserts numerous failures on his counsel's part. He contends that trial counsel Thom failed to properly investigate, conduct pretrial discovery, and prepare the case; failed to interview, depose, subpoena, or use available witnesses; failed to compel a witness's prior record; 1 failed to timely file his motion for change of venue based upon suggestive pretrial publicity; and generally failed to advocate on Taylor's behalf. See Appellant's Br. at 32. 2 When reviewing ineffective assistance of counsel claims, we use the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under the first prong, the petitioner must establish that counsel's performance was deficient; that is, the performance fell below an objective standard of reasonableness, thereby denying the petitioner the right to counsel as guaranteed by the Sixth Amendment to the United States Constitution. We presume that counsel provided adequate assistance and defer to counsel's strategic and tactical decisions. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. Under the second prong, the petitioner must demonstrate prejudice; that is, petitioner must demonstrate a reasonable probability that the result of the trial would have been different if counsel had not made the errors.
To the extent that Taylor again raises this issue regarding State's witness,Anthony Wallace, our supreme court has concluded otherwise. See Taylor, 515 N.E.2d at 1097 ("At trial, counsel for [Taylor] thoroughly explored Wallace's criminal history and motives for testifying. There is no basis in the record or in this situation from which one could reasonably deduce that additional time for investigation and consultation would have better equipped defense counsel to conduct" cross-examination). He also faults Thom for not raising double jeopardy and other sentencing issues at trial. We will address these issues in the Appellate Counsel section infra.
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If our confidence that the result would have been the same is undermined, we will find that a reasonable probability exists. If we can reject an ineffective assistance of counsel claim based on lack of prejudice, we need not address whether counsel provided deficient performance. Terry v. State, 857 N.E.2d 396, 402-03 (Ind. Ct. App. 2006) (citations and quotation marks omitted), trans. denied; see also Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). Indiana caselaw provides that effective representation requires adequate pretrial investigation and preparation. See Hernandez v. State, 638 N.E.2d 460, 461 (Ind. Ct. App. 1994), trans. denied. However, it is also well established that this Court should resist judging an attorney's performance with the benefit of hindsight. Id. at 462. "Counsel's failure to interview or depose State's witnesses does not, standing alone, show deficient performance." Williams v. State, 771 N.E.2d 70, 74 (Ind. 2002). The question is what additional information may have been gained from further investigation and how the absence of such information prejudiced the case. See Williams v. State, 724 N.E.2d 1070, 1076 (Ind. 2000). On May 15, 2003, Thom was deposed regarding his representation of Taylor. App. Vol. 8 at 1052-1102. Contrary to Taylor's assertions, Thom did not feel that his

representation was hindered by the forty-mile distance between his office and where Taylor was being held. Id. at 1056-57. Indeed, Thom believed that he had "sufficient enough contact" with Taylor to properly prepare the case. Id. at 1058-64. Clearly, Thom discussed the case with Taylor and agreed upon a strategy. Thom spoke with Sanders and reviewed her deposition. Thom utilized various motions; for example, he moved for a speedy trial, discovery, a continuance (to learn a new witness's background), a change of venue (due to

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negative publicity), and mistrial (when evidence was introduced that Sanders had been hypnotized). Id. Not all of the motions were successful. Yet, when asked what more he could have done to support one of his motions, Thom replied that he could not think of anything else. Id. at 1067-68. According to billing records, Thom invested more than one hundred hours in Taylor's case

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