FOR PUBLICATION




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

ANDREW C. MATERNOWSKI                             GREGORY F. ZOELLER
Indianapolis, Indiana                             Attorney General of Indiana

                                                  KARL M. SCHARNBERG
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana



                                                                      Sep 04 2014, 9:27 am
                            IN THE
                  COURT OF APPEALS OF INDIANA

TRACEY L. WHEELER, JR.,                      )
                                             )
     Appellant-Petitioner,                   )
                                             )
            vs.                              )   No. 84A01-1404-PC-153
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Respondent.                    )


                    APPEAL FROM THE VIGO SUPERIOR COURT
                        The Honorable John T. Roach, Judge
                          Cause No. 84D01-0908-PC-2503


                                  September 4, 2014

                             OPINION - FOR PUBLICATION

BAILEY, Judge
                                        Case Summary

          Petitioner Tracey L. Wheeler, Jr. (“Wheeler”) appeals the denial of his petition for

post-conviction relief, which challenged his convictions for Dealing in Cocaine1 and

Maintaining a Common Nuisance.2 We affirm.

                                             Issue

          Wheeler presents the issue of whether he was denied the effective assistance of

appellate counsel because appellate counsel declined to allege that Wheeler had been denied

his right of self-representation.

                                Facts and Procedural History

          On September 21, 2007, the State charged Wheeler with several drug-related offenses.

Three days later, public defender Angela Bullock (“Bullock”) entered her appearance to

represent Wheeler. Nonetheless, Wheeler filed a pro-se motion for a speedy trial.

          Bullock represented Wheeler at a hearing on his pro-se motion for a speedy trial. On

November 20, 2007, Wheeler sent a letter to the trial court expressing his frustration with

Bullock and again requesting a speedy trial. On December 12, 2007, Wheeler wrote to the

trial court to lodge a complaint against Bullock and request appointment of a lawyer “who

will represent me to the fullest[.]” (App. 341.) In late January, Bullock filed a motion to

suppress evidence and a motion to compel discovery on Wheeler’s behalf. Daniel L. Weber

(“Weber”), also a public defender, entered his appearance as co-counsel for Wheeler on



1
    Ind. Code § 35-48-4-1.

2
    I.C. § 35-48-4-13.

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January 25, 2008.

           Bullock sought a continuance of Wheeler’s trial, a decision with which Wheeler

strongly disagreed. He then filed several pro-se motions and letters. On February 19, 2008,

Wheeler filed a motion requesting “an Appellant lawyer to file a Notice of Appeal to appeal

the court’s decision on granting the continuance of my fast and speedy trial because I can’t

go Pro Se.” (App. 456.) Weber then filed, on Wheeler’s behalf, a motion for a speedy trial.

The motion was granted.

           On April 2, 2008, Wheeler filed a letter requesting permission to fire his lawyer and

represent himself. Bullock withdrew her appearance and Weber remained as counsel for

Wheeler. On May 20, 2008, Wheeler filed another letter, wherein he advised the trial court

that he had written to the head Public Defender and requested a new lawyer or, alternatively,

the invocation of his right of self-representation. On May 23, 2008, he filed an additional

letter, advising that he had requested in vain that his lawyer subpoena certain witnesses, and

expressing dissatisfaction with his attorney’s availability.3 He contemporaneously filed his

“Motion for Dismissal of Attorney for Ineffectiveness.” (App. 372.) He requested that the

trial court find “just cause as to the Dismissal of the current assigned attorney.” (App. 373.)

The motion for dismissal for ineffectiveness was denied.4

           Wheeler proceeded to trial on July 21, 2008, with the assistance of court-appointed

counsel. He was convicted and sentenced to thirty-five years imprisonment.


3
    In total, Wheeler filed at least thirteen letters directing the trial court’s attention to performance of counsel.

4
 Wheeler filed disciplinary complaints against Bullock and Weber with the Disciplinary Commission of the
Indiana Supreme Court.

                                                           3
       Wheeler appealed, with the assistance of court-appointed counsel John Pinnow

(“Pinnow”). Pinnow raised a single issue for review, whether the trial court abused its

discretion by admitting evidence obtained pursuant to an allegedly invalid search warrant.

Wheeler’s convictions were affirmed. Wheeler v. State, 84A01-0809-CR-412 (Ind. Ct. App.

July 7, 2009).

       On April 20, 2010, Wheeler filed a pro-se petition for post-conviction relief, raising

numerous claims. On October 23, 2013, with the assistance of counsel, Wheeler withdrew

all claims other than one predicated upon his alleged assertion of his right of self-

representation. The parties agreed to forego an evidentiary hearing, stipulating that the post-

conviction court would “take judicial notice of the entire trial court file” and also consider

Pinnow’s affidavit. (App. 552.) On March 10, 2014, Wheeler’s petition for post-conviction

relief was denied. He now appeals.

                                  Discussion and Decision

                                     Standard of Review

       The petitioner in a post-conviction proceeding bears the burden of establishing the

grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);

Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing from the denial of post-

conviction relief, the petitioner stands in the position of one appealing from a negative

judgment. Id. On review, we will not reverse the judgment of the post-conviction court

unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite

that reached by the post-conviction court. Id. A post-conviction court’s findings and


                                              4
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. Id. 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. Id.

                                   Effectiveness of Counsel

        Wheeler contends he was denied the effective assistance of appellate counsel.

Effectiveness of counsel is a mixed question of law and fact. Strickland v. Washington, 466

U.S. 668, 698 (1984). We evaluate Sixth Amendment claims of ineffective assistance under

the two-part test announced in Strickland. Id. To prevail on an ineffective assistance of

counsel claim, a defendant must demonstrate both deficient performance and resulting

prejudice. Dobbins v. State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at

687).    Deficient performance is that which falls below an objective standard of

reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d 1153,

1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d

687, 692 (Ind. 1996). The two prongs of the Strickland test 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.


                                               5
       A defendant is entitled to the effective assistance of appellate counsel. Stevens v.

State, 770 N.E.2d 739, 760 (Ind. 2002). The two-pronged standard for evaluating the

assistance of trial counsel first enunciated in Strickland is applicable to appellate counsel

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. Here, the second

category is implicated.

       “To show that counsel was ineffective for failing to raise an issue on appeal thus

resulting in waiver for collateral review, the defendant must overcome the strongest

presumption of adequate assistance, and judicial scrutiny is highly deferential.” Henley v.

State, 881 N.E.2d 639, 645 (Ind. 2008). Upon review, the performance prong is evaluated by

applying the following test: (1) whether the unraised issues are significant and obvious from

the face of the record and (2) whether the unraised issues are clearly stronger than those

raised. Id.

       Appellate counsel challenged the trial court’s decision to admit evidence gained from

the execution of an allegedly invalid search warrant; the reviewing court examined the

evidence in support of the warrant and found it sufficient to establish probable cause.

Wheeler, slip op. at 4. Wheeler claims that counsel should have argued that Wheeler was

denied his right of self-representation, in contravention of Faretta v. California, 422 U.S. 806

(1975).




                                               6
       A defendant’s Sixth Amendment right to counsel is essential to the fairness of a

criminal proceeding. Drake v. State, 895 N.E.2d 389, 392 (Ind. Ct. App. 2008) (citing

Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963)). Implicit in the right to counsel is the

right to self-representation. Faretta, 422 U.S. at 819.

       A request to proceed pro-se is a waiver of the right to counsel and thus there are

several requirements to invoking the right of self-representation successfully. Stroud v.

State, 809 N.E.2d 274, 279 (Ind. 2004). The request must be clear, unequivocal, and made

within a reasonable time prior to trial. Id. Additionally, the choice to proceed pro se must be

knowing, intelligent, and voluntary. Id. Even after a defendant has asserted his or her right

to self-representation, the right may be waived through conduct indicating that one is

vacillating on the issue or has abandoned the request altogether. Id. at 281.

       In his affidavit, Pinnow stated that he had considered the issue of Wheeler’s self-

representation and had rejected it as a strong issue for appeal. In relevant part, Pinnow’s

affidavit provided:

       In researching the self-representation issue I reviewed Faretta v. California,
       422 U.S. 806 (1975) and relevant Indiana precedent as well as the direct appeal
       record and came to the conclusion based upon Stroud v. State, 809 N.E.2d 274,
       279-82 (Ind. 2004) that Tracey Wheeler had only requested to represent
       himself a single time and that a single request was insufficient to asset his right
       of self-representation. Wheeler’s pro se request was also accompanied by
       efforts to have his attorney replaced by another attorney. He did not maintain a
       consistent position of asking to represent himself.

       I chose not to raise the self-representation issue in his direct appeal based upon
       what was in the direct appeal record and Stroud. The only issue I raised
       pertained to the issuance of the search warrant.

(App. 553-54.)

                                               7
       The record available to appellate counsel included Wheeler’s communications in

advance of trial. In sum, Wheeler’s appellate counsel opined that the motions and letters did

not constitute an unequivocal request for self-representation. Wheeler contends that this

assessment and decision to forego an appellate challenge is outside the bounds of reasonable

representation.

       In particular, Wheeler argues that two of his letters plainly conveyed his desire to

represent himself. The first of these, the letter of April 2, 2008, contained the following

language:

       I want to fire my counsel and represent myself, it is my constitutional right to
       represent myself. I feel as well as it shows that the Public defender’s office
       isn’t for the best interest of me. I’ve tried several times to fire my lawyer thru
       your court to represent myself the only results I’ve seen have be against me.
       So I feel if the best representation isn’t going to come from the Public
       defender’s office I feel I’ll be in better care representing myself, I only trust
       me.

(App. 459.) The second letter, received May 20, 2008, provided in relevant part:

       [S]ince Feb. 4th I have not spoken with an attorney nor have neither attorney
       fulfilled any of my request, nor took any precautions for preparing for trail.
       [sic] I believe the motion filed by my attorney was without merit and
       contained nothing but lies to deceive the court and trick the court into granting
       the motion to help cover up the fact that my lawyer isn’t doing his or her job.
       I’ve written the head Public Defender and as well the courts requesting a new
       lawyer or to use my right to represent myself, I can send myself to prison, I
       don’t need someone representing me who isn’t going to attempt to get a not
       guilty verdict.

(App. 469.)

       On April 2, 2008, Wheeler asked that he be allowed to represent himself. In the

subsequent letter, he highlighted perceived deficiencies in his counsel’s performance and


                                               8
indicated that he had written letters to obtain either a new lawyer or self-representation. He

did not make a specific request of the trial court at that time. Still later, he asked for

dismissal of “the current assigned attorney,” arguably implying that there would be a

subsequent assigned attorney. (App. 466.) Moreover, the letters upon which Wheeler relies

were a small part of numerous communications with the trial court undertaken for the

apparent purpose of bringing to light Wheeler’s unfavorable assessment of counsel’s

performance. In sum, it appears that Wheeler engaged in a tactical campaign to procure

counsel more to his liking.

       Wheeler did not – without equivocation or subsequent conduct indicating vacillation –

assert his right of self-representation. Accordingly, appellate counsel did not overlook a

significant and obvious claim that Wheeler was deprived of his Sixth Amendment right of

self-representation.

                                            Conclusion

       Wheeler fails to demonstrate a reasonable probability that the outcome of his direct

appeal would have been different had appellate counsel raised a Faretta claim. Wheeler has

not shown that he was denied the effective assistance of appellate counsel.

       Affirmed.

NAJAM, J., and PYLE, J., concur.




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