MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                      Dec 17 2018, 5:48 am
regarded as precedent or cited before any
                                                                                CLERK
court except for the purpose of establishing                                Indiana Supreme Court
                                                                               Court of Appeals
the defense of res judicata, collateral                                          and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Leif O’Connell                                          Curtis T. Hill, Jr.
Pendleton, Indiana                                      Attorney General of Indiana
                                                        Ellen H. Meilaender
                                                        Supervising Deputy
                                                        Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Leif O’Connell,                                         December 17, 2018
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        18A-PC-372
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable Jane Woodward
Appellee-Respondent.                                    Miller, Judge
                                                        Trial Court Cause No.
                                                        71D01-1701-PC-6



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018                Page 1 of 13
                               Case Summary and Issues
[1]   Following a jury trial in 1999, Leif O’Connell was convicted of one count of

      murder and five counts of attempted murder and sentenced to 175 years.

      O’Connell pursued a direct appeal, as a result of which his convictions were

      affirmed. In 2014, O’Connell’s first petition for post-conviction relief was

      denied. In that petition, O’Connell alleged his trial counsel and appellate

      counsel were ineffective in several respects. O’Connell did not appeal the

      denial of post-conviction relief.


[2]   In 2016, O’Connell sought permission from this court to file a successive

      petition for post-conviction relief, which this court granted. O’Connell then

      filed his successive petition for post-conviction relief, which the post-conviction

      court denied. O’Connell now appeals the denial, raising the following issues:

      1) whether the post-conviction court erred in determining he did not receive

      ineffective assistance of appellate counsel when appellate counsel raised issues

      that had no merit and failed to raise significant and obvious issues; and 2)

      whether the post-conviction court erred in determining he did not receive

      ineffective assistance of trial counsel when trial counsel failed to object to

      prosecutorial misconduct during closing arguments and misadvised him

      regarding a plea agreement offer. The State asserts O’Connell’s claims are

      barred because he raised issues concerning ineffective assistance of trial and

      appellate counsel in previous proceedings. Concluding the State is correct and

      that O’Connell’s claims are procedurally defaulted, we affirm the denial of post-

      conviction relief.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018   Page 2 of 13
                            Facts and Procedural History
[3]   O’Connell purchased a gun on February 11, 1997. From February 12 to

      February 26, O’Connell shot at six people, injuring four and killing one. The

      State charged O’Connell with one count of murder and five counts of attempted

      murder. At the conclusion of his jury trial, O’Connell was convicted of all

      counts. The trial court imposed consecutive sentences totaling 175 years.


[4]   On direct appeal, O’Connell raised four issues: 1) whether O’Connell waived

      the right to a court-ordered pre-trial lineup and whether the trial court erred in

      allowing in-court identifications by two victims; 2) whether O’Connell waived

      any error in the trial court allowing a surprise witness by the State; 3) whether

      the evidence was sufficient to support his convictions; and 4) whether the trial

      court erred in sentencing O’Connell to consecutive sentences. Our supreme

      court affirmed O’Connell’s convictions but found that the sentencing statement

      was insufficient to afford meaningful review of the sentence and remanded to

      the trial court on that issue. O’Connell v. State, 742 N.E.2d 943, 952-53 (Ind.

      2001). On remand, the trial court entered a new sentencing order but imposed

      the same aggregate 175-year sentence. This court affirmed the sentence on

      appeal. O’Connell v. State, No. 71A04-0105-CR-224 (Ind. Ct. App. Nov. 30,

      2001), trans. denied.


[5]   In 2002, O’Connell filed his first petition for post-conviction relief pro se, which

      was amended in 2012 by privately-retained counsel after the State Public

      Defender withdrew. At the post-conviction hearing in 2014, the following


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018   Page 3 of 13
      issues were addressed: whether O’Connell’s trial counsel provided ineffective

      assistance by failing to raise an insanity defense at trial, failing to follow

      through with a court-ordered pre-trial line-up and failing to object to

      identification evidence presented at trial, failing to request a continuance

      because a State’s witness was belatedly disclosed, and failing to retain a

      ballistics expert. In addition, O’Connell claimed that his appellate counsel was

      ineffective by failing to raise these instances of ineffective assistance of trial

      counsel on direct appeal. The post-conviction court denied O’Connell’s

      petition for post-conviction relief. No appeal was taken from the denial.


[6]   In 2016, O’Connell filed with this court a petition for permission to file a

      successive petition for post-conviction relief. In that petition, O’Connell alleged

      as grounds for relief that his post-conviction counsel “was clearly wrong” in

      raising the issue of whether appellate counsel was ineffective for failing to raise

      the issue of ineffective assistance of trial counsel on direct appeal because that

      practice is not encouraged; rather, post-conviction counsel should have raised

      the issues of whether appellate counsel raised issues on appeal that were

      without merit or that were not presented well and whether appellate counsel

      failed to raise significant issues clearly present in the record. Appellant’s

      Appendix, Volume 2 at 12. He also alleged as grounds for relief that his post-

      conviction counsel’s “misrepresentation and bad advice” resulted in no

      meritorious claims against appellate counsel in his first post-conviction

      proceeding and caused him to forfeit his right to appeal meritorious issues

      related to ineffective assistance of his trial counsel. Id. at 14-15. This court


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018   Page 4 of 13
      granted O’Connell’s petition, concluding he “has established a reasonable

      possibility that he is entitled to post-conviction relief[.]” Id. at 17.


[7]   On October 5, 2016, O’Connell filed his successive petition for post-conviction

      relief with the post-conviction court. The petition was subsequently amended

      by permission of the post-conviction court. The issues raised therein were:


               (a) Whether [O’Connell] was denied effective assistance of
               appellate counsel in violation of the Sixth and Fourteenth
               Amendments to the United States Constitution; Article One,
               sections Twelve and Thirteen of the Indiana Constitution when
               appellate counsel raised issues that had no merit failing to present
               them well on appeal, and failing to raise significant and obvious
               issues stronger than the issues raised.


      Id. at 20.


               (b) Whether [O’Connell] was denied effective assistance of
               counsel in violation of the Sixth and Fourteenth Amendments to
               the United States Constitution and Article One, sections Twelve
               and Thirteen of the Indiana Constitution when Trial counsel
               failed to object to prosecutorial misconduct during closing
               arguments and misadvised [O’Connell] concerning an insanity
               defense and in declining a plea agreement offer.


      Id. at 65 (emphasis omitted).1 With respect to appellate counsel, O’Connell

      specifically argued he should have raised the following issues: whether the trial



      1
        In his reply brief, O’Connell withdraws his claim regarding the insanity defense because it is res judicata,
      having already been litigated in his first post-conviction proceeding. See Appellant’s Reply Brief at 6; see also,
      e.g., Conner v. State, 829 N.E.2d 21, 25 (Ind. 2005) (noting that to the extent a claim is the same as has been
      raised before and decided adversely, it is barred by the doctrine of res judicata).

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018                      Page 5 of 13
      court abused its discretion in admitting autopsy photographs; whether the trial

      court erred in dismissing two jurors and not dismissing a third; and whether the

      State committed prosecutorial misconduct during closing argument. See id. at

      26-33. The State responded, pleading the affirmative defenses of waiver and res

      judicata. The post-conviction court held a hearing over two days in 2017 at

      which O’Connell stated, “I feel that none of my previous appeals have any of

      my issues ever been litigated to the fullest extent.” Transcript, Volume 1 at 55.

      O’Connell called his trial and appellate counsel as witnesses. The post-

      conviction court issued its order denying O’Connell relief on January 26, 2018.2

      O’Connell now appeals the denial.



                                  Discussion and Decision
                                        I. Standard of Review
[8]   Post-conviction proceedings are civil in nature and the petitioner must therefore

      establish his claims by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1(5). Post-conviction procedures create a narrow remedy for subsequent

      collateral challenges to convictions, and those challenges must be based on the

      grounds enumerated in post-conviction rules. Turner v. State, 974 N.E.2d 575,

      581 (Ind. Ct. App. 2012), trans. denied. “Post-conviction proceedings do not

      afford the petitioner an opportunity for a super appeal, but rather, provide the




      2
        The post-conviction court’s order addresses O’Connell’s petition solely on the merits and does not address
      the State’s waiver or res judicata arguments.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018                 Page 6 of 13
       opportunity to raise issues that were unknown or unavailable at the time of the

       original trial or the direct appeal.” Id.


[9]    A petitioner who has been denied post-conviction relief faces a “rigorous

       standard of review” on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind.

       2001). We may not reweigh the evidence or reassess the credibility of the

       witnesses and we consider only the evidence and reasonable inferences

       supporting the judgment. Hall v. State, 849 N.E.2d 466, 468-69 (Ind.

       2006). The petitioner must show the evidence is without conflict and leads

       “unerringly and unmistakably to a conclusion opposite that reached by the post-

       conviction court.” Strowmatt v. State, 779 N.E.2d 971, 975 (Ind. Ct. App.

       2002).


                        II. Trial & Appellate Counsel Claims
[10]   O’Connell concedes in his brief that he filed a successive petition for post-

       conviction relief “raising Ineffective assistance of appellate counsel and trial

       counsel[.]” Brief of Appellant at 7. His arguments on appeal are that appellate

       counsel failed to review the pre-trial record, raised issues that “had no merit and

       were destined to fail on appeal[,]” id. at 8, and failed to raise several issues that

       were significant and obvious on the face of the record; and that trial counsel

       failed to object to the State’s closing argument and misadvised O’Connell

       regarding a plea offer from the State. His conclusion is that he “has proven

       beyond the preponderance of the evidence that his trial counsel and appellate




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018   Page 7 of 13
       counsels were ineffective in representing him during trial and on direct

       appeal[.]” Id. at 40.


[11]   The State asserts O’Connell’s claims are barred by res judicata or otherwise

       procedurally defaulted. “Proper successive petitions contain claims that by

       their nature could not have been raised in earlier proceedings.” Matheney v.

       State, 834 N.E.2d 658, 662 (Ind. 2005). Claims that could have been raised in

       earlier proceedings but were not are procedurally defaulted; claims that have

       already been decided adversely to the petitioner are barred from re-litigation in

       successive post-conviction proceedings by res judicata. Id. O’Connell

       acknowledges the State asserted the affirmative defenses of waiver and res

       judicata in its response to his successive petition but claims that it is actually the

       State that has waived this issue by failing to argue it at the post-conviction

       hearing or address it in its proposed findings of fact and conclusions. However,

       “where an issue has not been properly preserved for review, an appellate court

       may decline to address such an issue whether or not the State has properly

       pleaded or proved the affirmative defense of waiver.” Taylor v. State, 780

       N.E.2d 430, 433 (Ind. Ct. App. 2002), trans. denied; see also Bunch v. State, 778

       N.E.2d 1285, 1287 (Ind. 2002) (noting aside from the Trial Rule 8(C)

       affirmative defense of waiver, there is a “doctrine of judicial administration

       whereby appellate courts may sua sponte find an issue foreclosed under a

       variety of circumstances in which a party has failed to take the necessary steps

       to preserve the issue” known as procedural default). Therefore, we may




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018   Page 8 of 13
       consider the State’s argument that O’Connell has not properly presented his

       claims in this successive post-conviction proceeding.


[12]   O’Connell claims his attorney provided poor representation during trial and

       lists several alleged deficiencies. However, deficiencies in trial counsel’s

       performance were raised in O’Connell’s first post-conviction petition and

       addressed therein. O’Connell has not made any showing that the additional

       deficiencies he now alleges were unavailable or unknown to him or his post-

       conviction counsel in that proceeding. O’Connell’s current grounds for arguing

       ineffective assistance of trial counsel were previously available but unasserted

       and are therefore procedurally defaulted at this stage.


[13]   O’Connell also claims his appellate attorney provided inadequate

       representation during his direct appeal. Again, however, the assistance of his

       appellate counsel was raised in his first post-conviction petition and O’Connell

       has not made any showing that the claims of inadequate assistance he makes

       now were unavailable then. In short, because the ineffectiveness of the counsel

       who handled O’Connell’s trial and his direct appeal was raised in the first post-

       conviction petition and decided adversely to him, he is not entitled to be heard

       on additional issues bearing on their effectiveness in this successive petition.

       See Hardy v. State, 786 N.E.2d 783, 787 (Ind. Ct. App. 2003) (“[A] defendant

       must present all claims of ineffective assistance of counsel . . . at the same time.

       Those not presented when a claim of ineffective assistance of counsel is first

       advanced . . . are waived.”), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018   Page 9 of 13
[14]   To the extent O’Connell claims that this court’s order granting him permission

       to file a successive petition for post-conviction relief allows him to raise these

       claims, we first note that Post-Conviction Rule 1(12)(c) specifically states that

       “[a]uthorization to file a successive petition is not a determination on the merits

       for any other purpose[.]” And we note again that all grounds for relief available

       to a petitioner under the Post-Conviction Rules are required to be raised in the

       original petition. P-C.R. 1(8). Only those grounds that were not known or

       available may be advanced in a successive petition for post-conviction relief.

       O’Connell’s petition for permission to file a successive petition for post-

       conviction relief invoked errors by his post-conviction counsel that would have

       been available for the first time in a successive petition. But O’Connell

       abandoned that line of argument when he changed tactics and addressed only

       trial and appellate counsel in the successive petition he filed with the post-

       conviction court.


[15]   O’Connell has had direct appeals of his convictions and sentence and has

       availed himself of the rule that permits a person convicted of a crime in an

       Indiana court one collateral review of the conviction and sentence in a post-

       conviction proceeding. See P-C.R. 1(1). He has completed the review of his

       convictions and sentence to which he is entitled as a matter of right. That

       O’Connell was granted permission to file a successive petition does not obligate

       this court to consider issues that are procedurally defaulted such as those he

       raises here. O’Connell’s successive petition for relief was therefore properly

       denied.


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018   Page 10 of 13
                         III. Post-Conviction Counsel Claims
[16]   To the extent O’Connell can be said to have challenged the performance of his

       post-conviction attorney, his claims are subject to Graves v. State, 823 N.E.2d

       1193, 1195-97 (Ind. 2005). In Graves, it was noted that post-conviction

       proceedings are not criminal actions and therefore need not be conducted under

       the same standard articulated in Strickland v. Washington, 466 U.S. 668 (1984),

       for trial and appellate counsel. Rather, the standard for post-conviction counsel

       is whether “counsel in fact appeared and represented the petitioner in a

       procedurally fair setting which resulted in a judgment of the court” and a claim

       of defective performance of counsel in a post-conviction proceeding “poses no

       cognizable grounds for post-conviction relief[.]” Graves, 823 N.E.2d at 1196.


[17]   In his petition requesting permission to file a successive petition for post-

       conviction relief, O’Connell alleged his post-conviction counsel’s actions

       resulted in forfeiting his appeal from the denial of his first post-conviction

       petition. In Graves, the petitioner’s first post-conviction petition was denied.

       His post-conviction counsel failed to timely appeal the post-conviction court’s

       denial. The petitioner then filed a successive petition for post-conviction relief

       alleging he received ineffective assistance of his post-conviction counsel. In

       announcing the standard for evaluating the performance of post-conviction

       counsel, the supreme court never discussed the failure to timely appeal or

       suggested it was a consideration in assessing whether the petitioner was denied

       a procedurally fair setting in which to adjudicate his post-conviction claim.

       Rather, the court noted that the petitioner’s counsel appeared at and

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018   Page 11 of 13
       participated in the post-conviction hearing and therefore, “certainly did not

       abandon” the petitioner. 823 N.E.2d at 1197. The court affirmed the denial of

       the petitioner’s second petition for post-conviction relief. Id.


[18]   The same result obtains here. O’Connell’s post-conviction counsel appeared at

       the post-conviction hearing, offered testimony from one witness by affidavit and

       elicited testimony from another witness, and submitted proposed findings of

       fact and conclusions of law on O’Connell’s behalf. In addition, counsel

       apparently reached an agreement with the State to modify O’Connell’s

       sentence; however, the agreement was not approved by the trial court.

       O’Connell was represented by counsel in a procedurally fair setting and has no

       grounds for challenging the performance of his post-conviction counsel.3



                                                  Conclusion
[19]   The issues O’Connell raised in his successive petition for post-conviction

       regarding his trial and appellate counsel’s performance were all known and

       available to him at the time of his first post-conviction proceeding and the

       performance of his post-conviction counsel does not present a cognizable claim.

       Therefore, the denial of his second post-conviction petition is affirmed.




       3
         O’Connell alleges “newly discovered evidence” from the post-conviction hearing concerning the sentencing
       judge’s impartiality and the post-conviction judge’s previous service in the county prosecutor’s office.
       O’Connell raises these issues for the first time on appeal and they are therefore waived. See Pavan v. State, 64
       N.E.3d 231, 233 (Ind. Ct. App. 2016) (“It is well settled that issues not raised in a PCR petition may not be
       raised for the first time on appeal.”).

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018                  Page 12 of 13
[20]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018   Page 13 of 13
