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ATTORNEYS FOR APPELLANT
Joseph Cleary Indianapolis, Indiana Brent Westerfeld Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Steve Carter Attorney General of Indiana Stephen R. Creason Deputy Attorney General Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 49S00-0409-PD-420

BENJAMIN RITCHIE, Appellant (Petitioner below), v. STATE OF INDIANA, Appellee (Respondent below). _________________________________

Direct Appeal from the Marion Superior Court, Criminal Division, Room 4 No. 49G04-0010-CF-172900 The Honorable Patricia Gifford, Judge _________________________________ November 8, 2007

Rucker, Justice.

Summary

Benjamin Ritchie was convicted of murder, possession of a handgun by a serious violent felon, auto theft, and resisting law enforcement in connection with the 2000 shooting death of Beech Grove police officer William Toney. The trial court accepted the jury's recommendation for a sentence of death for the murder conviction and sentenced Ritchie to a total executed term of twenty years for the remaining convictions. On direct appeal, we affirmed Ritchie's

conviction and sentence of death. Thereafter Ritchie filed a petition for post-conviction relief, which the post-conviction court denied after a hearing. He now appeals that denial raising several issues for our review, some of which are waived. 1 We address the remaining issues, which we rephrase as follows: (1) whether Ritchie was denied the effective assistance of trial counsel; (2) whether Ritchie was denied the effective assistance of appellate counsel; and (3) whether he received a fair post-conviction hearing. We affirm the post-conviction court.

Facts 2

A recitation of the essential facts in this case was set forth in our opinion on direct appeal as follows: On September 29, 2000, around 7:00 p.m, Ritchie and two others stole a white Chevrolet Astro van from a gas station in Beech Grove. The theft was reported and police were dispatched to the scene where Beech Grove police officer Matt Hickey filed a stolen
Ritchie complains the mandatory procedures for capital sentencing and independent appellate review were violated. Br. of Appellant at 88. Under these general headings he alleges: (1) the trial court improperly instructed the jury that he was eligible for a sentence ranging between forty-five and seventyfive years, but the actual range was forty-five to ninety-four years; (2) the trial court erroneously gave the jury a special verdict form on the weighing element; and (3) the trial court failed to issue a written sentencing order. Id. at 88-92. The purpose of a petition for post-conviction relief is to raise issues unknown or unavailable to a defendant at the time of the original trial or appeal. Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006). These issues were known and available at the time of Ritchie's direct appeal. An issue known but not raised on direct appeal is waived. Williams v. State, 808 N.E.2d 652, 659 (Ind. 2004).
2 1

"Tr." refers to trial transcript. "P-Cr." refers to the transcript of the post-conviction proceedings.

2

vehicle report. Approximately two hours later, Hickey was en route to a traffic accident scene and recognized the stolen van as Ritchie and one of his accomplices drove by. After confirming by radio that the van bore the license plate of the stolen vehicle, Hickey pursued, joined by officers Robert Mercuri and William Toney. After a short chase, the van pulled into the yard of a residence where Ritchie and his companion jumped out and ran in opposite directions. Officer Toney pursued Ritchie on foot, and ultimately Ritchie turned and fired four shots, one of which struck Toney in the chest. Toney died at the scene. Ritchie v. State, 809 N.E.2d 258, 261 (Ind. 2004), cert. denied, 546 U.S. 828 (2005).

Procedural History

The State charged Ritchie with murder, unlawful possession of a firearm by a serious violent felon as a Class B felony, auto theft as a Class D felony, two counts of resisting law enforcement as Class D felonies, and carrying a handgun without a license, a Class C felony. 3 Tr. at 7. The State sought the death penalty based on two aggravating circumstances: (1) the victim of the murder was a law enforcement officer acting in the course of duty, Ind. Code

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