Daniel Cardine v. State of Indiana (NFP)

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FILED 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. Dec 30 2011, 9:04 am CLERK of the supreme court, court of appeals and tax court APPELLANT PRO SE: ATTORNEYS FOR APPELLEE: DANIEL M. CARDINE Bunker Hill, Indiana GREGORY F. ZOELLER Attorney General of Indiana Indianapolis, Indiana JODI KATHRYN STEIN Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA DANIEL CARDINE, Appellant-Petitioner, vs. STATE OF INDIANA, Appellee-Respondent. ) ) ) ) ) ) ) ) ) No. 45A04-1105-PC-267 APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Kathleen A. Sullivan, Magistrate The Honorable William T. Enslen, Judge Pro Tem Cause No. 45G01-1004-PC-5 December 30, 2011 MEMORANDUM DECISION - NOT FOR PUBLICATION BARTEAU, Senior Judge STATEMENT OF THE CASE Petitioner-Appellant Daniel Cardine appeals from the denial of his petition for post-conviction relief. We affirm. ISSUES Cardine presents three issues for our review, which we consolidate and restate as: I. Whether the post-conviction court erred by denying his claim that his sentence violates his constitutional rights. II. Whether the post-conviction court erred by denying his claim of ineffective assistance of trial and appellate counsel. FACTS AND PROCEDURAL HISTORY Cardine was convicted of both attempted murder and aggravated battery, which the trial court merged into a single conviction of attempted murder, a Class A felony. See Ind. Code §§ 35-41-5-1 (1977), 35-42-1-1 (2001). Cardine was sentenced in October 2003 to an enhanced sentence of thirty-seven years. He filed a direct appeal, and on May 13, 2004, this Court affirmed his conviction and sentence in a memorandum decision. See Cardine v. State, No. 45A04-0311-CR-563 (Ind. Ct. App. May 13, 2004). In April 2010, Cardine filed a pro se petition for post-conviction relief, which he amended on June 15, 2010 and August 2, 2010. The post-conviction court held a hearing on the petition on September 14, 2010, after which it issued an order denying Cardine s request for post-conviction relief on April 26, 2011. This appeal ensued. DISCUSSION AND DECISION 2 A post-conviction petitioner has the burden of establishing the grounds for relief by a preponderance of the evidence. Ind. Post Conviction Rule 1(5); West v. State, 938 N.E.2d 305, 309 (Ind. Ct. App. 2010), trans. denied. To the extent the post-conviction court has denied relief, the petitioner appeals from a negative judgment and faces the rigorous burden of showing that the evidence, as a whole, leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Harris v. State, 762 N.E.2d 163, 166 (Ind. Ct. App. 2002), trans. denied. A post-conviction court s 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. Kistler v. State, 936 N.E.2d 1258, 1261 (Ind. Ct. App. 2010), trans. denied. In this review, findings of fact are accepted unless they are clearly erroneous, and no deference is accorded to conclusions of law. Id. The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Witt v. State, 938 N.E.2d 1193, 1196 (Ind. Ct. App. 2010), trans. denied. I. UNCONSTITUTIONAL SENTENCE Cardine contends that his enhanced sentence is unconstitutional. Cardine was convicted of attempted murder, and the court sentenced him to the presumptive term at that time of thirty years, with an additional seven-year enhancement. See Ind. Code § 3550-2-4 (1995). In so doing, the court cited as aggravating circumstances that 1. [t]he impact on the victim is beyond that normally associated with this offense and the impact was foreseeable by [Cardine] and 2. [t]he injury to the victim, who is now a paraplegic, 3 is irreparable and life altering in that he can no longer use his hands and legs. Appellant s Brief p. 23. In this post-conviction appeal, Cardine argues that the facts that were used to enhance his sentence should have been presented to a jury and found beyond a reasonable doubt. In his original petition for post-conviction relief, Cardine cited Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), to support his sentencing argument. In the second amendment of his petition, Cardine replaced Blakely with Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) to support his claim that his sentence is unconstitutional. The United States Supreme Court issued its decision in Apprendi on June 26, 2000, holding that [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. 530 U.S. at 490. Four years later, in Blakely, the Supreme Court defined the term statutory maximum as the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. 542 U.S. at 303. Following Blakely, the validity of Indiana s presumptive sentencing scheme began to be questioned, and, in 2005, the Indiana Supreme Court definitively resolved the issue and held that Indiana s presumptive sentencing scheme violated the Sixth Amendment pursuant to Blakely because it provided for an enhanced sentence based on facts neither found by a jury nor admitted by the defendant. See Smylie v. State, 823 N.E.2d 679, 683 4 (Ind. 2005). In analyzing Indiana s sentencing scheme in light of Blakely, the Indiana Supreme Court held: While Blakely certainly states that it is merely an application of the rule we expressed in Apprendi v. New Jersey, 542 U.S. at ----, 124 S. Ct. at 2536, it is clear that Blakely went beyond Apprendi by defining the term statutory maximum. As the Seventh Circuit recently said, it alters courts understanding of statutory maximum and therefore runs contrary to the decisions of every federal court of appeals [that had previously] held that Apprendi did not apply to guideline calculations made within the statutory maximum. Simpson v. United States, 376 F.3d 679, 681 (7th Cir. 2004) (collecting cases). Because Blakely radically reshaped our understanding of a critical element of criminal procedure, and ran contrary to established precedent, we conclude that it represents a new rule of criminal procedure. Smylie, 823 N.E.2d at 687. Although Cardine claims a violation of the rule set forth in Apprendi, his argument is actually based upon an interpretation of Apprendi that came four years later in Blakely. At the time Cardine was sentenced in October 2003, Apprendi had not been interpreted in a manner that would have invalidated his sentence. Indeed, the Apprendi decision changed nothing at the time; rather, it was Blakely and its interpretation of Apprendi that prompted a change in our state s sentencing scheme. See Smylie, 823 N.E.2d at 682-83. We note that the decision in Cardine s direct appeal was issued on May 13, 2004, over a month before Blakely was issued on June 24, 2004. In addition, the decision in Cardine s direct appeal was certified as final on June 23, 2004, one day before the Blakely decision was issued and almost a year before the Indiana Supreme Court decided Smylie on March 5 9, 2005.1 Thus, the post-conviction court s denial of Cardine s claim that his sentence is unconstitutional based upon Apprendi is not clearly erroneous.2 II. ASSISTANCE OF COUNSEL Cardine also argues that his trial counsel and appellate counsel were ineffective for failing to raise a sentencing argument in light of Apprendi.3 In general, claims of ineffective assistance of counsel are reviewed under a two-part test: (1) a demonstration that counsel s performance fell below an objective standard of reasonableness based on prevailing professional norms, and (2) a showing that the deficient performance resulted in prejudice. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Prejudice occurs when the defendant demonstrates that there is a reasonable probability that, if not for counsel s unprofessional errors, the result of the proceeding would have been 1 Smylie also addressed the question of Blakely s applicability to pre-Blakely sentences and determined that Blakely would be applied retroactively to all cases pending on direct review at the time the Blakely decision was issued. 823 N.E.2d at 690-91. Additionally, the Supreme Court held that the fundamental error doctrine is not available to attempt retroactive application of Blakely through post-conviction relief. Id. at 689 n.16. 2 In his petition, Cardine also cited Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), and he included Bostick v. State, 773 N.E.2d 266 (Ind. 2002), in his argument at the hearing on his petition. As we have stated, Blakely is the case that prompted a change in Indiana s sentencing scheme, and these cases, like Apprendi, were prior to Blakely. Thus, these cases do not invalidate Cardine s sentence enhancement either. 3 In its brief, the State claims that Cardine has waived this issue by replacing it with another issue when he amended his petition for post-conviction relief. However, we note that Cardine s first amendment to his petition added subsections (c) and (d) to paragraphs 8 and 9 to include his claims of ineffectiveness of counsel. In the second amendment to his petition, it is clear that he was amending only subsections (a) and (b) of paragraphs 8 and 9, without affecting his ineffectiveness claims contained in subsections (c) and (d). Additionally, in support of his ineffectiveness claims, he presented testimony from both his trial and appellate counsel at the hearing on his petition. Therefore, we address Cardine s argument regarding the alleged ineffectiveness of his trial and appellate counsel. 6 different. Id. A reasonable probability occurs when there is a probability sufficient to undermine confidence in the outcome. Id. Failure to satisfy either prong of the two-part test will cause the defendant s claim to fail. Henley v. State, 881 N.E.2d 639, 645 (Ind. 2008). Having determined that Apprendi did not impact Indiana s sentencing scheme so as to invalidate Cardine s sentence, there can be no claim of ineffectiveness of counsel based upon their failure to raise the issue at trial or on appeal. Indeed, the Court expressly stated, [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. Cardine was sentenced in October 2003, nearly a year before Blakely was decided, and his appellate brief was filed four months prior to the decision in Blakely. Cardine s trial and appellate counsel s failure to anticipate that Apprendi would lead to the holding in Blakely, and eventually the holding in Smylie, cannot be considered ineffective assistance. See Walker v. State, 843 N.E.2d 50, 59-60 (Ind. Ct. App. 2006) (holding that trial and appellate counsel s failure to raise sentencing argument based upon Apprendi did not constitute ineffective assistance of counsel when defendant was sentenced prior to the decision in Blakely), trans. denied. The post-conviction court properly denied Cardine s petition for relief. CONCLUSION Based upon the foregoing, we conclude that the post-conviction court properly denied Cardine s petition for post-conviction relief. 7 Affirmed. ROBB, C.J., and NAJAM, J., concur. 8

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