Terry Fennessee v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
Jun 30 2016, 7:18 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Terry Fennessee, Pro-Se Gregory F. Zoeller
Bunker Hill, Indiana Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Terry Fennessee, June 30, 2016
Appellant-Petitioner, Court of Appeals Case No.
71A04-1503-PC-134
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jane Woodward
Appellee-Respondent. Miller, Judge
Trial Court Cause No.
71D01-1003-PC-17
Bailey, Judge.
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Case Summary
[1] Pro-se Appellant-Petitioner Terry Fennessee (“Fennessee”) appeals the denial
of his petition for post-conviction relief, which challenged his conviction for
Attempted Murder.1 We affirm.
Issues
[2] Fennessee presents two issues for review:
I. Whether judicial bias denied him a fair post-conviction
proceeding;2 and
II. Whether he was denied the effective assistance of trial and
appellate counsel.
Facts and Procedural History
[3] On direct appeal, a panel of this Court recited the relevant facts as follows:
1
Ind. Code §§ 35-41-5-1, 35-42-1-1.
2
To the extent that Fennessee also claims he was denied a fair hearing by an impartial judge at his trial, we
do not address this contention, which could have been raised on direct appeal. The post-conviction rules
contemplate a narrow remedy for subsequent collateral challenges to convictions. Reed v. State, 856 N.E.2d
1189, 1194 (Ind. 2006). The purpose of a petition for post-conviction relief is to provide petitioners the
opportunity to raise issues not known or available at the time of the original trial or direct appeal. Stephenson
v. State, 864 N.E.2d 1022, 1028 (Ind. 2007). If an issue was known and available but not raised on direct
appeal, the issue is procedurally foreclosed. Id. If an issue was raised and decided on direct appeal, it is res
judicata. Id. Moreover, collateral challenges to convictions must be based upon grounds enumerated in the
post-conviction rule. Shanabarger v. State, 846 N.E.2d 702, 707 (Ind. Ct. App. 2006), trans. denied; see also
Post-Conviction Rule 1(1). To the extent that Fennessee attempts to raise free-standing issues arising from
his trial, they are not properly addressed through post-conviction proceedings. Bunch v. State, 778 N.E.2d
1285, 1289 (Ind. 2002).
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Fennessee married Tasha Townsend in 2002, and, in early 2007,
Townsend filed for divorce. In March 2007, Townsend obtained
an ex parte protective order against Fennessee, which barred him
from Townsend’s residence. Fennessee was not personally
served with the protective order, but a copy of the order was left
at his residence.
On April 15, 2007, Timothy Watson, who has a fourteen-year-
old daughter with Townsend, was visiting Townsend and their
daughter at Townsend’s apartment. Watson’s two other children
and a young relative accompanied him. At approximately 10:00
p.m., Townsend was walking Watson and the children out of her
apartment building when they found Fennessee standing outside.
Townsend reminded Fennessee about the protective order, but he
did not leave. Watson walked toward his car to try to leave, but
Fennessee kept talking to Watson, asking him whether he had
been “messing around” with Townsend. Watson said no, and he
turned his back to Fennessee to leave. Fennessee then shot
Watson several times in the back. After that, Fennessee walked
over to Watson and shot him in the back of his head. Watson
survived his injuries.
The State charged Fennessee with attempted murder, and a jury
found him guilty as charged. The trial court entered judgment
accordingly and sentenced Fennessee to forty years.
Fennessee v. State, No. 71A03-0903-CR-97, slip op. at 1 (Ind. Ct. App. June 30,
2009).
[4] On direct appeal, Fennessee challenged the admission into evidence of the
protective order against him, and alleged that the trial court had abused its
discretion in permitting the State to question him regarding prior threats against
a witness. See id. Fennessee’s conviction was affirmed. Id.
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[5] On March 15, 2010, Fennessee filed a petition for post-conviction relief, which
was later amended. On August 22, 2014, and on January 9, 2015, the post-
conviction court conducted evidentiary hearings. On February 25, 2015, the
post-conviction court issued its findings of fact, conclusions of law, and order
denying Fennessee post-conviction relief. He now appeals.
Discussion and Decision
Standard of Review
[6] Post-conviction proceedings are not “super appeals”; rather, they afford
petitioners a limited opportunity to raise issues that were unavailable or
unknown at trial and on direct appeal. Wilkes v. State, 984 N.E.2d 1236, 1240
(Ind. 2013). Post-conviction proceedings are civil in nature, and petitioners
bear the burden of proving their grounds for relief by a preponderance of the
evidence. Id. We accept the post-conviction court’s findings of fact unless they
are clearly erroneous, but we do not defer to its conclusions of law. State v.
Hollin, 970 N.E.2d 147, 151 (Ind. 2012). We may not reweigh the evidence or
assess the credibility of the witnesses. Id. at 150.
Procedural Due Process
[7] Fennessee contends that the post-conviction court exhibited “plain and overt”
bias against him, such that he was denied due process of law, specifically, a fair
proceeding before a neutral fact-finder. Appellant’s Br. at 4. According to
Fennessee, the post-conviction court knowingly issued false findings of fact in
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the post-conviction order and subsequently hindered Fennessee’s appeal by
claiming that his Notice of Appeal was untimely.
[8] In effect, Fennessee argues that the post-conviction judge demonstrated her bias
in the post-conviction proceedings because she had entered adverse rulings at
trial, and then she entered factual findings contrary to Fennessee’s post-
conviction evidence or legal argument. Yet an adverse ruling is not sufficient to
show bias or prejudice. Flowers v. State, 738 N.E.2d 1051, 1060 n.4 (Ind. 2000).
Instead, a party “must show that the trial judge’s action or demeanor crossed
the barrier of impartiality and prejudiced” his case. Id. No such showing has
been made in this case.
[9] Fennessee’s claim that the post-conviction court hindered his appeal arises from
the initial finding by the post-conviction judge that Fennessee’s Notice of
Appeal was untimely, four days outside the thirty-day limit. Fennessee filed a
motion to reinstate his Notice of Appeal, requesting application of the prison
mailbox rule. The motion was not granted and, with counsel’s assistance,
Fennessee sought and obtained an order from this Court. Although there may
have been some initial confusion, Fennessee’s Notice of Appeal was ultimately
accepted and his appeal was perfected.3 Thus, he was not denied his right to
3
On November 20, 2015, this Court issued an order clarifying that Fennessee had thirty days from February
25, 2015, or until March 27, 2015, to file his Notice of Appeal. (App. at 64.) He had reportedly given the
Notice of Appeal to prison officials on March 23, 2015. The certificate of service was dated March 19, 2015.
The Clerk of the Court filed the Notice of Appeal on March 27, 2015. Finding any of those dates to be
timely, this Court granted, in part, Fennessee’s “Verified Motion to Reinstate Notice of Appeal as Timely
Filed, Pursuant to Prison Mailbox Rule.” (App. at 64.)
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appeal due to any mistake or other conduct on the part of the post-conviction
judge. Moreover, the adverse post-conviction judgment is not evidence of bias
on the part of the post-conviction court.
[10] Fennessee has not demonstrated that he was denied due process in the post-
conviction proceedings.
Assistance of Trial Counsel
[11] Fennessee claims that his trial counsel was ineffective for failing to more
vigorously pursue Fennessee’s defense of self-defense. According to Fennessee,
trial counsel should have obtained more accurate documents to evidence
Watson’s violent past and should have elicited additional testimony from
Fennessee. Specifically, Fennessee claims that his trial attorney should have
elicited testimony from Fennessee to the effect that Watson had threatened him
by saying: “Just got out a couple of weeks ago for shooting a Bitch-ass N-----
like you.” Appellant’s Br. at 19.
[12] We evaluate Sixth Amendment claims of ineffective assistance of counsel under
the two-part test announced in Strickland v. Washington, 466 U.S. 668, 698
(1984). To succeed on a claim of ineffective assistance of counsel, a petitioner
must show not only that his trial counsel’s representation fell below an objective
standard of reasonableness, but also that counsel’s errors were so serious as to
deprive him of a fair trial because of a reasonable probability that, but for
counsel’s unprofessional errors, the result would have been different. Stevens v.
State, 770 N.E.2d 739, 746 (Ind. 2002), cert. denied. A reasonable probability is
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a probability sufficient to undermine confidence in the outcome. Id. There is a
strong presumption that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment. Id.
[13] A valid claim of self-defense is a legal justification for an act that is otherwise
defined as criminal. Pinkston v. State, 821 N.E.2d 830, 842 (Ind. Ct. App. 2004).
A self-defense claim is established upon showing: that the actor was in a place
where he had a right to be, he did not provoke, instigate, or participate willingly
in the violence, and he had a reasonable fear of death or great bodily harm.
Hood v. State, 877 N.E.2d 492, 497 (Ind. Ct. App. 2007).
[14] In furtherance of his claim of self-defense, Fennessee testified at trial that
Watson was the bigger man, Watson had threatened to “f--- up” and to kill
Fennessee, Watson had claimed that he could kill Fennessee and get away with
it because of the protective order Fennessee’s wife had obtained, Watson had
shot someone in the State of Tennessee, Watson had pushed a woman down in
a dispute over a dog, federal marshals had raided Fennessee’s residence looking
for Watson on drug and firearms charges, Watson was known to promote
animal fighting, and he had committed “break-ins” and robberies. (Tr. at 422-
494.)
[15] The post-conviction court concluded that, had the jury been told of one
additional threat, the incremental information would not likely have produced a
different outcome. We agree with this assessment of the evidence. Moreover,
had the jury been convinced that Fennessee reasonably feared Watson, this is
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not the end of the matter. Fennessee was in a place where he had no right to
be. He was prohibited by a protective order from being at his wife’s residence.
Moreover, he fired five shots into Watson, one to Watson’s head as he lay on
the sidewalk. It is well-settled that firing multiple shots undercuts a claim of
self-defense. Randolph v. State, 755 N.E.2d 572, 575 (Ind. 2001). Trial counsel
was not ineffective in failing to produce additional evidence of Watson’s
conduct or criminal history.
[16] Fennessee also claims that his trial counsel was ineffective for failing to object
when the trial court modified a tendered instruction on aggravated battery by
changing the phrase “must find the defendant guilty” to “shall find the
defendant guilty.” (Tr. at 530.) Fennessee does not provide relevant authority
and cogent argument to support the claim that the instruction was erroneous.
However, the two prongs of the Strickland are separate and independent
inquiries. Strickland, 466 U.S. at 697. Thus, “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice … that course
should be followed.” Id. Here, assuming that an incorrect instruction on
aggravated battery was given, Fennessee suffered no prejudice. He was not
convicted of aggravated battery.
Assistance of Appellate Counsel
[17] A defendant is entitled to the effective assistance of appellate counsel. Stevens,
770 N.E.2d at 760. The two-pronged standard for evaluating the assistance of
trial counsel first enunciated in Strickland is applicable to appellate counsel
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ineffective assistance claims. Bieghler v. State, 690 N.E.2d 188, 192 (Ind. 1997).
There are three basic categories of alleged appellate ineffectiveness: (1) denying
access to an appeal, (2) waiver of issues, and (3) failure to present issues well.
Id. at 193-95. The second category is implicated, as Fennessee argues that his
appellate counsel failed to raise an obvious issue: the allegedly erroneous
aggravated battery instruction. As previously observed, Fennessee was not
convicted of aggravated battery. Accordingly, there was no reason for appellate
counsel to raise an issue regarding an aggravated battery instruction.
Conclusion
[18] Fennessee has not demonstrated that he was denied a fair post-conviction
proceeding. Nor has he demonstrated that he was denied the effective
assistance of trial or appellate counsel.
[19] Affirmed.
Bradford, J., and Altice, J., concur.
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