MEMORANDUM DECISION
ON REHEARING
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       Apr 05 2017, 6:07 am
court except for the purpose of                                      CLERK
establishing the defense of res judicata,                        Indiana Supreme Court
                                                                    Court of Appeals
collateral estoppel, or the law of the case.                          and Tax Court




APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
George A. Foote                                         Curtis T. Hill
Pendleton, Indiana                                      Attorney General of Indiana

                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

George A. Foote,                                        April 5, 2017
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        28A01-1607-PC-1726
        v.                                              Appeal from the Greene Circuit
                                                        Court
State of Indiana,                                       The Honorable Erik Allen, Judge
Appellee-Respondent                                     Trial Court Cause No. 28C01-0909-
                                                        PC-141



Riley, Judge.




Court of Appeals of Indiana |Memorandum Decision on Rehearing 28A01-1607-PC-1726 | April 5, 2017 Page 1
of 5
[1]   In a memorandum decision, handed down on December 27, 2016, we

      concluded that the Appellant-Petitioner, George A. Foote (Foote), had not been

      denied ineffective assistance of appellate counsel based on the failure of his

      appellate counsel to raise certain direct appeal issues. Foote v. State, No. 28A01-

      1607-PC-1726, 2016 WL 7471947, at *6 (Ind. Ct. App. Dec. 27, 2016). Foote’s

      appellate counsel had utilized the Davis/Hatton procedure to suspend Foote’s

      direct appeal in order to pursue post-conviction relief. Id. at *2. Upon the

      denial of Foote’s post-conviction relief petition, his appellate attorney filed an

      appeal and raised only issues pertaining to the denial of the post-conviction

      relief petition. Id. We determined that even if his appellate counsel had raised

      the sentencing issue that Foote claimed should have been argued as a direct

      appeal matter, Foote would not have prevailed on the merits; therefore, his

      appellate counsel did not render ineffective assistance of counsel by failing to

      raise issues on direct appeal. Id. at *6. Nevertheless, we now grant rehearing

      for the limited purpose of addressing Foote’s claim that he received ineffective

      assistance of appellate counsel because his attorney denied him access to a

      direct appeal. 1


[2]   It is well established that there are three categories of ineffective assistance of

      counsel claims: “(1) denying access to an appeal; (2) failing to raise issues; and




      1
          The State did not file a response to Foote’s petition for rehearing.
      Court of Appeals of Indiana |Memorandum Decision on Rehearing 28A01-1607-PC-1726 | April 5, 2017 Page 2
      of 5
      (3) failing to present issues competently.” Dawson v. State, 810 N.E.2d 1165,

      1173 (Ind. Ct. App. 2004) (citing Timberlake v. State, 753 N.E.2d 591, 604 (Ind.

      2001)), trans. denied. We noted in our memorandum decision that Foote

      primarily relied upon the second category of appellate counsel ineffectiveness:

      failing to raise issues. Foote now contends that our court failed to address his

      alternative argument that his appellate counsel was ineffective because he

      denied Foote access to an appeal by failing to reinstate Foote’s direct appeal.

      Although Foote, in his appellate brief, did not explicitly argue that he had been

      denied access to an appeal, he did rely upon Dodd v. Knight, 533 F. Supp. 2d

      844 (N.D. Ind. 2008).


[3]   In Dodd, following the defendant’s conviction for murder, appellate counsel

      utilized the Davis/Hatton procedure to stay the direct appeal in order to pursue

      an ineffective assistance of counsel claim via a petition for post-conviction

      relief. Id. at 846. Following the denial of the defendant’s petition for post-

      conviction relief, appellate counsel appealed but “did not raise any direct appeal

      issues despite previously telling the court of appeals that there were a number of

      trial errors ripe for appeal. Instead, the appeal rested solely on the post-

      conviction review issue of ineffective assistance of counsel.” Id. at 847. After

      this court affirmed the denial of the defendant’s post-conviction relief petition

      and the supreme court denied transfer (and after unsuccessfully attempting to

      file successive post-conviction relief petitions), the defendant filed a petition for

      a writ of habeas corpus with the federal district court in the Northern District of

      Indiana. Id.

      Court of Appeals of Indiana |Memorandum Decision on Rehearing 28A01-1607-PC-1726 | April 5, 2017 Page 3
      of 5
[4]   The district court stated that “[w]hen a criminal defendant is effectively denied

      any direct appeal because of his counsel’s deficient performance, the petitioner

      is entitled to a new appeal without further analysis of prejudice and without a

      showing that the appeal has merit.” Id. at 851. While the denial of a direct

      appeal is per se ineffectiveness and demands a new appeal, a strategic decision to

      raise certain issues on appeal is not presumptively prejudicial. Id.


              Because the direct appeal and the post-conviction appeal are
              separate, albeit consolidated for efficiency, each retains its own
              unique characteristics. And while a defendant does not have a
              constitutional right to the effective assistance of counsel on post-
              conviction review, he does have a right to a direct appeal of his
              criminal conviction, and a constitutional right to the effective
              assistance of counsel on that direct appeal. Appellate counsel’s
              failure “to show up for appeal—which can occur either if the
              lawyer fails to initiate the appeal or if the lawyer fails to
              prosecute the appeal,” denies the defendant “of more than a fair
              judicial proceeding,” it deprives him “of the appellate proceeding
              altogether.”


      Id. at 852 (internal citations omitted). The district court found it particularly

      troubling that appellate counsel had specifically acknowledged that there were

      viable issues to be raised on direct appeal but subsequently failed to raise those

      errors in the consolidated appeal. Id. at 853. Ultimately, the court determined

      that the case “should be analyzed under the per se standard” such that if the

      defendant could “demonstrate that he instructed his counsel to pursue a direct

      appeal and counsel failed to do so, [the defendant] is entitled to a new appeal.”

      Id.


      Court of Appeals of Indiana |Memorandum Decision on Rehearing 28A01-1607-PC-1726 | April 5, 2017 Page 4
      of 5
[5]   The case at bar is distinct from Dodd. Foote offers no argument that he had

      directed his appellate counsel to pursue a direct appeal. Moreover, there is no

      indication in the record that his appellate counsel believed Foote had a viable

      sentencing claim to raise on direct appeal but simply failed to follow through.

      In fact, Foote’s appellate counsel testified that post-conviction relief was Foote’s

      best chance for relief because he did not see any “just absolutely . . . powerful

      direct appeal issues.” (P-CR Tr. p. 79). Accordingly, this is not a case in which

      Foote’s appellate counsel failed to prosecute an appeal, automatically entitling

      Foote to a new appeal based on per se ineffectiveness. See, e.g., Allen v. State, 959

      N.E.2d 343, 345-47 (Ind. Ct. App. 2011) (holding that defendant was entitled to

      a new appeal based on a per se denial of ineffective assistance where appellate

      counsel was never appointed to prosecute the appeal, resulting in the dismissal

      of the appeal), habeas corpus denied. Rather, the record reveals that this is a

      situation where Foote’s appellate counsel made a strategic decision to raise

      certain issues in the consolidated appeal. Because we have already determined

      that Foote suffered no prejudice in light of the fact that he would not have

      prevailed on the sentencing issue on direct appeal, he is not entitled to relief on

      rehearing. Accordingly, we affirm our earlier decision in all respects. 2


[6]   Crone, J. and Altice, J. concur




      2
        We decline Foote’s request to reconsider our conclusion in the original decision that he waived his claim
      that his convictions for Class A felony child molesting are unconstitutional.
      Court of Appeals of Indiana |Memorandum Decision on Rehearing 28A01-1607-PC-1726 | April 5, 2017 Page 5
      of 5
