Pursuant to Ind. Appellate Rule 65(D),

                                                                   FILED
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,                        May 21 2012, 9:21 am
collateral estoppel, or the law of the case.
                                                                        CLERK
                                                                      of the supreme court,
                                                                      court of appeals and
                                                                             tax court




    APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE:
    MONWELL DOUGLAS                                     GREGORY F. ZOELLER
    Carlisle, Indiana                                   Attorney General of Indiana

                                                        NICOLE M. SCHUSTER
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana




                                   IN THE
                         COURT OF APPEALS OF INDIANA

    MONWELL DOUGLAS,                                    )
                                                        )
            Appellant,                                  )
                                                        )
                vs.                                     )      No. 34A04-1107-PC-388
                                                        )
    STATE OF INDIANA,                                   )
                                                        )
            Appellee.                                   )

                         APPEAL FROM THE HOWARD SUPERIOR COURT
                                The Honorable Lynn Murray, Judge
                                 Cause No. 34C01-0607-PC-150



                                               May 21, 2012


                      MEMORANDUM DECISION – NOT FOR PUBLICATION

    MATHIAS, Judge
         Monwell Douglas (“Douglas”) was convicted of murder and is serving a sixty-

year sentence in the Department of Correction. Douglas subsequently filed in Howard

Superior Court a pro se petition for post-conviction relief alleging that he was denied the

effective assistance of appellate counsel. His petition was denied and Douglas appeals

pro se. Concluding that Douglas was not subjected to ineffective assistance of appellate

counsel, we affirm.

                                   Facts and Procedural History

         Facts relevant to Douglas’s appeal of the denial of his petition for post-conviction

relief are set forth in his direct appeal of his murder conviction.

                At approximately 1:00 a.m. on November 1, 2003, Desmond
         Williams, Raphael Echols, Tahisia Williams,1 and Douglas were at the
         Ultimate Place 2 B in Kokomo. From there, they individually drove to the
         Nu Tro Zone, to an “after party.” Tr. p. 485. Tahisia arrived first, and
         when Echols, her boyfriend, arrived, she got in the passenger seat of his
         car. Desmond then walked up to Echols’s car and asked to use Echols’s
         cell phone. Echols gave Desmond his phone, and Desmond sat on the
         hood of Echols’s car and used the phone. As Tahisia was getting out of
         the car and Desmond turned around to return the phone, Douglas
         approached the driver’s side of Echols’s car and shot Echols. Echols
         retrieved a gun from the back seat of his car, got out on the passenger side
         of the car, fired shots into the air, and then fell over. While they were
         waiting for an ambulance, Desmond threw Echols’s gun into a grassy area
         away from Echols. Shortly after arriving at the hospital, Echols died.
                On November 3, 2003, the State charged Douglas with murder. A
         jury found Douglas guilty, and the trial court sentenced him to sixty-five
         years.

Douglas v. State, No. 34A02-0504-CR-360, Slip op. at 2-3 (Ind. Ct. App. Dec. 22, 2005).



1
    Tahisia Williams is not related to Desmond Williams.

                                                    2
       On direct appeal, Douglas’s appellate counsel raised the following five issues: 1)

whether the trial court properly admitted photographs of the victim taken at the hospital;

2) whether the trial court properly allowed testimony from a witness who was not listed

on the State’s witness list; 3) whether the trial court properly refused Douglas’s tendered

instruction on the State’s alleged “failure to produce evidence;” 4) whether two witnesses’

testimony was incredibly dubious; and 5) whether Douglas’s sixty-five year sentence was

inappropriate. Our court affirmed Douglas’s conviction, but concluded that his sentence

was inappropriate and remanded the case to the trial court with instructions to reduce his

sentence to sixty years. On February 3, 2006, the trial court entered a revised sentencing

statement as ordered by our court.

       On July 12, 2006, Douglas filed a pro se petition for post-conviction relief, and the

post-conviction court appointed the State Public Defender to represent Douglas at his

request. But the State Public Defender’s Office was allowed to withdraw its appearance

on January 18, 2011, and Douglas then filed an amended petition for post-conviction

relief and requested an evidentiary hearing. In the amended petition, Douglas alleged

that his appellate counsel was ineffective for failing to raise the following two issues on

direct appeal: 1) the charging information did not allege that Douglas “knowingly or

intentionally” killed the victim; and 2) that the judge who presided over the murder trial

was biased because the same judge made the probable cause finding for the murder

charge.

       The post-conviction court held a hearing on Douglas’s amended petition on May

19, 2011. Douglas’s appellate counsel testified at the hearing and stated that the issues

                                             3
raised in Douglas’s amended petition lacked merit; therefore, he did not raise them on

direct appeal. On July 5, 2011, post-conviction court denied Douglas’s petition, and

Douglas now appeals.

                                  Discussion and Decision

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

grounds for relief by a preponderance of the evidence. Henley v. State, 881 N.E.2d 639,

643 (Ind. 2008). Douglas is appealing a negative judgment; therefore, he 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. “Although we do not defer to the

post-conviction court’s legal conclusions, a post-conviction court’s findings and

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.” State v. Damron, 915

N.E.2d 189, 191 (Ind. Ct. App. 2009), trans. denied. Post-conviction proceedings do not

afford a petitioner with a “super-appeal.” Williams v. State, 808 N.E.2d 652, 659 (Ind.

2004).

          To prevail on a claim of ineffective assistance of counsel, Douglas must show both

that counsel’s performance fell below an objective standard of reasonableness and that

the deficient performance prejudiced him. Coleman v. State, 694 N.E.2d 269, 272 (Ind.

1998) (citing Strickland v. Washington, 466 U.S. 668 (1984)).            There is a strong

presumption that counsel rendered adequate assistance. Id. “Evidence of isolated poor

strategy, inexperience or bad tactics will not support a claim of ineffective assistance.” Id.

at 273.

                                              4
       To establish the prejudice prong of the test, the petitioner must show there is a

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

proceeding would have been different. Sims v. State, 771 N.E.2d 734, 741 (Ind. Ct. App.

2002), trans. denied. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. “Prejudice exists when the conviction or sentence

resulted from a breakdown in the adversarial process that rendered the result of the

proceeding fundamentally unfair or unreliable.” Coleman, 694 N.E.2d at 272. This

standard applies to both claims of ineffective assistance of trial and appellate counsel.

Rhoiney v. State, 940 N.E.2d 841, 845 (Ind. Ct. App. 2010), trans. denied.

       Our supreme court has recognized three types of ineffective assistance of appellate

counsel: (1) denial of access to appeal; (2) failure to raise issues that should have been

raised; and (3) failure to present issues well. Wrinkles v. State, 749 N.E.2d 1179, 1203

(Ind. 2001).

       When a petitioner claims the denial of effective assistance of appellate
       counsel because counsel did not raise issues the petitioner argues should
       have been raised, reviewing courts should be particularly deferential to
       counsel’s strategic decision to exclude certain issues in favor of others,
       unless such a decision was unquestionably unreasonable. But this does not
       end our analysis. Even if we determine that counsel’s choice of issues was
       not reasonable, a petitioner must demonstrate a reasonable probability that
       the outcome of the direct appeal would have been different in order to
       prevail.

Taylor v. State, 840 N.E.2d 324, 338 (Ind. 2006) (citations and quotation marks omitted).

We must determine “(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 the raised



                                             5
issues.” Gray v. State, 841 N.E.2d 1210, 1214 (Ind. Ct. App. 2006) (citation omitted),

trans. denied.

       First, Douglas claims that his appellate counsel was ineffective for failing to

challenge the defective charging information on direct appeal. Specifically, the charging

information omitted the requisite mens rea element for murder, i.e. that Douglas

“knowingly or intentionally” killed the victim. See Ind. Code § 35-42-1-1.

       We certainly agree that there was a defect in the charging information. But it is

also well settled that a charging information that “enables an accused, the court, and the

jury to determine the crime for which conviction is sought satisfies due process. Errors in

the information are fatal only if they mislead the defendant or fail to give him notice of

the charge filed against him.” Dickenson v. State, 835 N.E.2d 542, 550 (Ind. Ct. App.

2005), trans. denied (citations omitted).

       We cannot conclude that appellate counsel’s failure to raise the issue was

ineffective, particularly given the fact that trial counsel waived the issue during the trial

proceedings. And despite the defect in the charging information, Douglas does not argue

that he was misled or lacked notice of the murder charge filed against him. Importantly,

the jury was properly instructed both in the preliminary and final instructions that the

State had to prove that Douglas “knowingly or intentionally” killed Echols. Moreover,

the evidence introduced at trial leads only to the conclusion that Douglas “knowingly or

intentionally” killed Echols. He shot Echols multiple times at close range. For these

reasons, Douglas cannot establish that he was prejudiced by the defect in the charging



                                             6
information, and therefore, had the issue been raised on direct appeal, Douglas would not

have prevailed.

       Douglas also argues that his appellate counsel was ineffective for failing to argue

that the judge who presided over his trial should have recused herself because the same

judge found probable cause to believe that Douglas committed the murder in question.

The probable cause affidavit at issue in this case stated that an eyewitness saw Douglas

shoot the victim multiple times at close range and that the victim died as a result of the

shooting. After reviewing the affidavit, the trial court found probable cause to believe

that Douglas had committed the crime of murder, i.e. a “practical, common-sense

decision whether, given all the circumstances set forth in the affidavit . . . there is a fair

probability” that the suspect has committed the crime. Shotts v. State, 925 N.E.2d 719,

723 (Ind. 2010); see also Ware v. State, 859 N.E.2d 708, 720 (Ind. Ct. App. 2007)

(stating “[t]he amount of evidence necessary to meet the probable cause requirement . . .

is determined on a case-by-case basis, and is less than the level of proof necessary to

establish guilt beyond a reasonable doubt”), trans. denied (citation omitted).

       Importantly, the trial court did not determine Douglas’s guilt when making the

probable cause determination. And our courts have long held that “participation of a

judge in a probable cause determination does not necessarily disqualify him [or her] from

trying the case on the merits.” See, e.g., Jones v. State, 416 N.E.2d 880, 881 (Ind. Ct.

App. 1981). Ultimately, the finding of guilt in this case was not made by the trial judge,

but by a jury of Douglas’s peers. Douglas has not cited any portions of the trial record to

support his argument that the trial judge should have recused herself. In other words,

                                              7
Douglas has not established that there is any evidence in the record that would lead us to

conclude that the trial judge was disqualified from trying the case after making the

probable cause determination. There is simply no merit to Douglas’s claim that his

appellate counsel was ineffective for failing to raise this issue on direct appeal of his

conviction.

       For all of these reasons, we conclude that Douglas has not shown that his appellate

counsel rendered ineffective assistance. The post-conviction court’s denial of Douglas’s

petition is affirmed.

       Affirmed.

ROBB, C.J., and BAILEY, J., concur.




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