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J.B. Whitelow, Jr. V. State of Indiana

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J.B. Whitelow, Jr. V. State of Indiana MEMORANDUM DECISION 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 ATTORNEYS FOR APPELLEE J.B. Whitelow, Jr. Curtis T. Hill, Jr. Carlisle, Indiana Attorney General of Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana I N T H E COURT OF APPEALS OF INDIANA J.B. Whitelow, Jr. December 19, 2017 Appellant-Petitioner, Court of Appeals Case No. 45A03-1701-PC-129 v. Appeal from the Lake Superior Court 3 State of Indiana, The Honorable Diane Ross Appellee-Respondent. Boswell, Judge The Honorable Natalie Bokota, Magistrate Trial Court Cause No. 45G03-1206-PC-009 Mathias, Judge. Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017 Page 1 of 28 [1] After this court affirmed his conviction for murder and attempted battery, J.B. Whitelow, Jr., (“Whitelow”) filed a petition for post-conviction relief in the Lake Superior Court, which denied the petition. Whitelow appeals and presents eight issues, which we consolidate and restate as the following two: (1) whether the post-conviction court clearly erred in determining that Whitelow was not denied the effective assistance of trial counsel, and (2) whether the post- conviction court clearly erred in determining that Whitelow was not denied the effective assistance of appellate counsel. [2] We affirm. Facts and Procedural History [3] We summarized the facts underlying Whitelow’s convictions in our memorandum decision on direct appeal as follows: In September 2008, an errantly thrown lemon slice mixed with hot tempers, leading to a scuffle and shooting death outside a bar in Hammond. Sometime between two and three o’clock in the morning on September 21, a bartender threw a slice of lemon to get the attention of a male patron, but by mistake hit Darnell Jones (a.k.a. “Dada”). Dada became angry, threw a glass, and was escorted out by Rob Moore (a.k.a. “House”), one of the bar’s security guards. Upon exiting, Dada began to argue with House and Eric Lowe (a.k.a. “Herc”), another security guard. House and Herc followed Dada to his car, and Dada then swung open his car door, hitting Herc with it. House and Herc decided to detain Dada and call the police, and struggled to pull him from the car. Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017 Page 2 of 28 At this time House heard screaming nearby, saw a woman restraining a man he later identified as Whitelow, heard a gunshot, and then ducked behind a car parked next to Dada’s. House then darted toward his own car to retrieve a gun, but en route remembered his gun was not in his car and instead ran back to the bar, where he alerted the other security guards to the shooting and told them to call 911. House then saw Herc begin to chase Whitelow. Keith Berry (a.k.a. “Butch”), another security guard, also saw Herc chase Whitelow, and saw Whitelow point a gun and shoot Herc in the head. Butch ran up to Whitelow, put him in a headlock, and was lying on the ground holding Whitelow’s head and neck while someone else kicked Butch in the head repeatedly and yelled at him to let go of Whitelow. At least one other joined the scuffle and yelled at Butch to let go of Whitelow. Herc died of his injuries. Rodreon Jones accompanied Dada to the bar that evening and knew Whitelow. After the gunshots and scuffle, of which she personally saw and heard some but not all of what happened, she called Whitelow’s cellular phone and asked him why he shot the security guard. He said “I didn’t do that. I got blood all over my shirt and my pants,” and then hung up. Over a period of months in early 2009, Whitelow described the incident to Brandon Humphrey three or four times. Whitelow told Humphrey that his sister’s child’s father, Dada, was kicked out of the bar and was being hassled by a security guard, so Whitelow told the security guard to stop. Whitelow told Humphrey that a scuffle between him and the security guard ensued, during which Whitelow pulled out a gun and shot the guard three times. Whitelow told Humphrey he ran from the scene and burned his clothes. Whitelow also told Humphrey that the only witnesses were his sister’s child’s father and a second security guard, and that “if he got rid of both of them, that that Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017 Page 3 of 28 [sic] was [sic] the only people that could convict him in this case.” Whitelow v. State, No. 45A05-1009-CR-586, 2011 WL 3568238 at *1-2 (Ind. Ct. App. Aug. 15, 2011), trans. denied (record citations omitted). [4] On October 7, 2008, the State charged Whitelow with murder, attempted murder, battery, and attempted battery. The State later alleged that Whitelow was a habitual offender. After the first trial ended in a mistrial, a second trial began in July 2010. At the conclusion of the retrial, the jury found Whitelow guilty of murder and attempted battery as a Class C felony. Whitelow waived his right to a jury trial on the habitual offender allegation, and the trial court found that Whitelow was a habitual offender. On August 20, 2010, the trial court sentenced Whitelow to consecutive sentences of fifty-five years for murder, four years for attempted battery, and thirty years for being a habitual offender, for a total of eighty-nine years of incarceration. [5] Whitelow appealed and claimed that the trial court erred in admitting into evidence Whitelow’s pre-trial statement to a witness, a witness’s lay opinion testimony, and evidence of Whitelow’s prior conviction for armed robbery. Whitelow also claimed that the State failed to present sufficient evidence to support his conviction for attempted battery. Whitelow, 2011 WL 3568238 at *1. We rejected these claims and affirmed Whitelow’s convictions. Id. at *5. [6] Whitelow then began his efforts to seek post-conviction relief. On June 1, 2012, Whitelow filed a pro se petition for post-conviction relief. On June 19, 2012, an Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017 Page 4 of 28 attorney with the Indiana Public Defender’s office filed an appearance on Whitelow’s behalf. But on January 15, 2013, this public defender withdrew his appearance. Before a hearing was held on his initial petition for post-conviction relief, Whitelow filed a second petition on September 9, 2013. A copy of this petition was sent to the Indiana Public Defender’s office, which filed a notice of non-representation on October 16, 2013. On August 6, 2015, Whitelow requested permission to file an amended petition for post-conviction relief. The trial court granted the motion on September 14, 2015, and ordered the State to reply, which the State did on September 24, 2015. [7] Also on September 24, 2015, the trial court held an evidentiary hearing on Whitelow’s post-conviction petition. The only witness was Whitelow’s trial counsel. On December 13, 2015, the trial court entered findings of fact and conclusions of law denying Whitelow’s petition for post-conviction relief. Whitelow now appeals. Post-Conviction Standard of Review [8] Post-conviction proceedings are not “super appeals” through which convicted persons can raise issues they failed to raise at trial or on direct appeal. McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002). Post-conviction proceedings instead 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). The post-conviction petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). Thus, on appeal from the denial of a petition for Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017 Page 5 of 28 post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. To prevail on appeal from the denial of post- conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post- conviction court. Id. at 643–44. [9] The post-conviction court made specific findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). On review, we must determine if the court’s findings are sufficient to support its judgment. Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947 N.E.2d 962. Although we do not defer to the post-conviction court’s legal conclusions, we review the post-conviction court’s factual findings for clear error. Id. Accordingly, we will not reweigh the evidence or judge the credibility of witnesses, and we will consider only the probative evidence and reasonable inferences flowing therefrom that support the post-conviction court’s decision. Id. Ineffective Assistance of Trial Counsel [10] Our supreme court summarized the law regarding claims of ineffective assistance of trial counsel as follows: A defendant claiming a violation of the right to effective assistance of counsel must establish the two components set forth in Strickland v.
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