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FOR PUBLICATION
APPELLANT PRO SE: ANTHONY L. WALKER Carlisle, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana J. T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ANTHONY L. WALKER, Appellant-Petitioner, vs. STATE OF INDIANA, Appellee-Respondent. ) ) ) ) ) ) ) ) )

No. 49A02-0507-PC-663

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Robert Altice, Judge Cause No. 49G02-9808-PC-131021

February 28, 2006

OPINION - FOR PUBLICATION

SHARPNACK, Judge

Anthony L. Walker appeals the post-conviction court's denial of his petition for post-conviction relief. Walker raises six issues, which we consolidate and restate as: I. II. Whether Walker waived his freestanding claims of error; and, Whether his trial counsel and appellate counsel were ineffective for failing to argue that he improperly received an enhanced sentence based upon aggravating circumstances not found by a jury beyond a reasonable doubt in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).

We affirm. 1 The relevant facts, as set out in Walker's direct appeal, follow: [I]n the afternoon on June 23, 1998, Walker met James Smith in a parking lot at Falcon Creek Apartments in Indianapolis, as previously arranged, to purchase marijuana. Walker had walked to this location, while Smith had driven his mother's car. Smith sold three marijuana cigarettes to Walker at a discount. Smith then suggested that they smoke one of the cigarettes together. As they were doing so, Smith became angry and demanded that Walker pay a past debt. The two men scuffled, and at some point a handgun was brandished. Walker proceeded to shoot Smith three times, twice in the back and once in the back of the head. Following the shooting, Walker obtained the keys to Smith's mother's car and opened the trunk. He removed the speakers from the trunk and discarded them. Walker then lifted Smith's body into the trunk and drove to Sunrise Apartments. After parking in a vacant garage, Walker removed Smith's clothing and threw them in a dumpster along with the car keys and the handgun used in the shooting. Walker also took Smith's cellular phone, which he discarded a couple weeks later, and a portable radio, which he gave to his girlfriend for her birthday. Shortly thereafter, a maintenance man noticed the unfamiliar car and called the police. The car was subsequently towed to an impound lot.

We direct Walker's attention to Ind. Appellate Rule 46(A)(10), which requires an appellant's brief to "include any written opinion, memorandum of decision or findings of fact and conclusions thereon relating to the issues raised on appeal."

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When Smith's mother went to recover the car the next evening, she discovered Smith's partially decomposed corpse in the trunk. Smith's mother did not terminate the cell phone account, and phone calls continued to appear on the billing record after his death. Police investigators eventually traced these calls to Walker and questioned him five times concerning his involvement in Smith's death. Walker gave several different stories and, in the last interview on August 6, 1998, finally confessed to the actions set forth above. He maintained, however, that he shot Smith in self-defense. On August 7, 1998, Walker was charged with murder, felony murder, robbery as a class A felony, and auto theft. Following a three-day jury trial, the jury found him guilty of the lesser-included offense of voluntary manslaughter as a class A felony and of robbery and auto theft as charged. The trial court reduced Walker's robbery conviction to a class B felony, refusing to further reduce the conviction to a class C felony. The trial court then imposed the following executed sentence: An enhanced forty-five-year term for voluntary manslaughter; the presumptive ten-year sentence for robbery as a class B felony; and, the maximum three-year sentence for auto theft. The trial court ordered the voluntary manslaughter and robbery sentences to be served consecutively and the auto theft sentence to run concurrent to those, for an aggregate sentence of fifty-five years. Walker v. State, 758 N.E.2d 563, 564-565 (Ind. Ct. App. 2001) (footnote omitted), reh'g denied, trans. denied. Walker was sentenced on December 29, 2000. On direct appeal, Walker raised two issues: (1) whether his conviction for robbery as a class B felony violated the Indiana Double Jeopardy Clause where his conviction for voluntary manslaughter was elevated to a class A felony because the offense was committed by means of a deadly weapon; and (2) whether his sentence for voluntary manslaughter was manifestly unreasonable in light of the nature of the offense and character of the offender. Id. at 564. We held that "there [was] a reasonable possibility that the evidentiary facts used by the jury to enhance Walker's conviction for voluntary 3

manslaughter may also have been used to enhance his conviction for robbery" and remanded to the trial court with instructions to reduce the robbery conviction to a class C felony and to reduce Walker's corresponding sentence to the presumptive sentence of four years. Id. at 567. However, we also held that his forty-five-year sentence for voluntary manslaughter was not manifestly unreasonable. Id. at 568. On remand, the trial court sentenced Walker to an aggregate term of forty-nine years in the Indiana Department of Correction. Walker filed a petition for post-conviction relief on July 30, 2003, and an amended petition on December 15, 2004. In the amended petition, Walker alleged that his trial and appellate counsel were ineffective for failing to object to his sentence based upon Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and that the trial court erred by sentencing him in violation of Apprendi and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), reh'g denied. After a hearing, the post-conviction court entered findings of fact and conclusions thereon as follows: ***** 2. The Court first finds Petitioner is entitled to no relief on his claim that trial counsel was ineffective for failing to object to the Court sentencing Petitioner beyond the presumptive without a jury's determination of aggravating factors. In order to prevail on his postconviction claim that his Sixth Amendment right to effective assistance of counsel was violated, Petitioner must establish the two components from Strickland v. Washington, 466 U.S. 668 (1984). Wesley v. State, 788 N.E.2d 1247, 1252 (Ind. 2003) (citing Williams v. Taylor, 529 U.S. 362, 390 (2000) (parallel citations omitted)). First, Petitioner must show that defense counsel's performance was deficient, which "requires showing that counsel's representation fell below an objective standard of reasonableness and that counsel made 4

errors so serious that counsel was not functioning as `counsel' guaranteed to the defendant by the Sixth Amendment." Id. (citing Strickland, 466 U.S. at 687-88). This objective standard of reasonableness is based on "prevailing professional norms." Id. There is a strong presumption that counsel rendered adequate assistance and made all decisions by exercising reasonable professional judgment. Martin v. State, 766 N.E.2d 351, 361 (Ind. 2002) [sic] (citing Strickland, 466 U.S. at 690). "Even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client." Id. Thus, counsel's representation is not rendered ineffective by isolated mistakes, poor strategy, inexperience and bad judgment. Id. Second, Petitioner must show that the deficient performance prejudiced the defense. Wesley, 788 N.E.2d at 1252. Prejudice is proven by showing that counsel's errors were so serious as to deprive the defendant of a fair trial where the result is unreliable. Id. In other words, Petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of his trial would be different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. Further, the two prongs are separate and independent inquiries, and if a court can "dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Martin v. State, 766 N.E.2d 351, 360 (Ind. 2002) [sic] (citing Williams v. State, 706 N.E.2d 149, 154 (Ind. 1999) (quoting Strickland, 466 U.S. at 697)). Petitioner relies on Apprendi v. New Jersey, 503 U.S. 466 (2000), and Blakely v. Washington, 124 S.Ct. 2531 (2004), to support his claim that counsel should have objected to Court sentencing him beyond the presumptive without a jury's determination of aggravators . . . Our Supreme Court recently addressed the application and ramifications of the Supreme Court's Blakely decision to Indiana sentencings and found that the law now requires a jury to find aggravating factors to enhance a sentence beyond the presumptive. Smylie v. State, 823 N.E.2d 679, slip opinion, No. 41S01-0409-CR-408 (Ind. March 9, 2005). This requirement does not apply where the Court is using criminal convictions or facts admitted by the defendant. Although our Supreme Court found that Blakely affects Indiana's sentencing scheme, the Court also found that this is a new rule of criminal 5

procedure and is applicable only to those cases still pending on direct review where a sentencing claim has not been forfeited or waived. [Id. at 690-691]. The Smylie court also held that: Because Blakely represents a new rule that was sufficiently novel that it would not have been generally predicted, much less envisioned to invalidate part of Indiana's sentencing structure, requiring a defendant or counsel to have prognosticated the outcome of Blakely or of today's decision would be unjust. [Id. at 689]. Our Supreme Court went on to say "not raising a Blakely claim before its issuance would fall within the range of effective lawyering." Id. at [691]. Petitioner is entitled to no relief on his claim. 3. Nor is Petitioner entitled to relief on his claim that appellate counsel was ineffective for failing to challenge his sentence on these grounds. The standard for gauging appellate counsel's performance is the same as that for trial counsel from Strickland v. Washington, 466 U.S. 668 (1984). Allen v. State, 749 N.E.2d 1158, 1166-67 (Ind. 2001). In other words, Petitioner must prove that appellate counsel performed deficiently and that he was prejudiced as a result. Id. When reviewing an appellate counsel's strategic decision to include or exclude issues, courts should be particularly deferential "unless such a decision was unquestionably unreasonable" because deciding which issues to raise on appeal is one of the most important strategic decisions of appellate counsel. Stevens v. State, 770 N.E.2d 739, 760 (Ind. 2002). To prove ineffective assistance of appellate counsel, a defendant must "show from the information available in the trial record or otherwise known to appellate counsel that appellate counsel failed to present a significant and obvious issue and that this failure cannot be explained by any reasonable strategy." Id. (quoting Ben-Yisrayl v. State, 738 N.E.2d, 253, 261 (Ind. 2000)). Just as trial counsel was not ineffective for failing to raise a Blakely claim, nor is appellate counsel. As our Supreme Court stated in Smylie, "a trial lawyer or an appellate lawyer would not be ineffective for proceeding without adding a Blakely claim before Blakely was decided." Smylie, [823 N.E.2d at 690]. Petitioner is entitled to no relief on this claim.

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4.

The Court also finds that Petitioner is entitled to no relief on his freestanding claim that the Court erred in using aggravating factors not determined by a jury to enhance Petitioner's sentence. Petitioner raised no claim regarding his sentence in his direct appeal, and the Court finds that Petitioner has procedurally defaulted such claims now. Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002). Moreover, Petitioner cannot avoid his default by calling these alleged errors "fundamental." Concepcion v. State, 796 N.E.2d 1256, 1258-59 (Ind. Ct. App. 2003) (citing Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002)). In a recent decision of our Supreme Court, the Court held that "[t]he fundamental error doctrine will not . . . be available to attempt retroactive application of Blakely through post-conviction relief. Smylie, [823 N.E.2d at 689 n.16]. Petitioner is entitled to no relief on this claim. The law is with the State and against the Petitioner.

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Appellant's Appendix at 163-165. Thus, the post-conviction court denied Walker's petition for post-conviction relief. Before discussing Walker's allegations of error, we note the general standard under which we review a post-conviction court's denial of a petition for post-conviction relief. The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. On review, we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. Further, the post-conviction court in this case entered findings of fact and conclusions thereon in accordance with Indiana Post-Conviction Rule 1(6). Id. "A post-conviction court's findings and judgment will be reversed only upon a 7

showing of clear error

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