Opinion
24A-PC-590
11-13-2024
Anthony W. Dager, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent.
ATTORNEYS FOR APPELLANT Jonathan D. Harwell Moawia K. AlMahareeq Harwell Gray Legal Counsel, LLC Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Wells Circuit Court The Honorable Kenton W. Kiracofe, Judge Trial Court Cause No. 90C01-2109-PC-6
ATTORNEYS FOR APPELLANT Jonathan D. Harwell Moawia K. AlMahareeq Harwell Gray Legal Counsel, LLC Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana
Judges Bailey and Vaidik concur.
MEMORANDUM DECISION
Baker, Senior Judge.
Statement of the Case
[¶1] Anthony Dager appeals the denial of his petition for post-conviction relief after he pleaded guilty to three counts of Level 4 felony operating a vehicle with a BAC of .15 or more, causing death. Dager contends the post-conviction court erred by rejecting his claim of ineffective assistance of trial counsel at sentencing. He further claims the post-conviction court was biased or prejudiced against him. Finding no error on either claim, we affirm.
Facts and Procedural History
[¶2] In April 2015, Dager consumed a large quantity of vodka through the night and then proceeded to drive to work. On the drive, he crossed the center line of the road, struck another vehicle head on, and killed the three occupants of the other vehicle.
[¶3] The State charged Dager with three counts of Level 4 felony operating a vehicle with a BAC of .15 or more, causing death and three counts of Level 5 felony operating a vehicle while intoxicated, causing death. Dager pleaded guilty to the three Level 4 felonies, and sentencing was left to the court's discretion. The court imposed consecutive sentences of ten years, for an aggregate executed sentence of thirty years.
[¶4] Dager filed a direct appeal in which the sole issue was whether his sentence was inappropriate. In a memorandum decision, a panel of this Court affirmed his sentence. See Dager v. State, No. 90A04-1508-CR-1210 (Ind.Ct.App. Feb. 16, 2016) (mem.).
[¶5] Dager subsequently petitioned for post-conviction relief. Following a hearing, the court denied his petition, and this appeal followed.
Issues
[¶6] Dager presents two issues for our review, which we restate as:
I. Whether the post-conviction court erred by denying Dager's claim of ineffective assistance of trial counsel.
II. Whether the post-conviction court's statements constitute judicial bias or prejudice.
Discussion and Decision
I. Assistance of Counsel
[¶7] To prevail on appeal following the denial of post-conviction relief, the petitioner must establish clear error by showing that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the postconviction court. Ingalls v. State, 213 N.E.3d 544, 548 (Ind.Ct.App. 2023). In our review, we accept the post-conviction court's findings of fact unless clearly erroneous, though we do not defer to its legal conclusions. Id.
[¶8] Dager contends his trial counsel afforded him ineffective assistance by failing to conduct a thorough investigation of mitigation evidence and failing to file a sentencing memorandum.
[¶9] Our analysis of Dager's claim is guided by a two-part test. First, he must demonstrate that counsel's performance was deficient. Black v. State, 7 N.E.3d 333, 338 (Ind.Ct.App. 2014). Such deficiency is established by a showing that counsel's representation fell below an objective standard of reasonableness and that counsel's errors were so serious the defendant was denied the counsel guaranteed by the Sixth Amendment. Id. (quoting Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010)).
[¶10] Second, Dager must prove that counsel's deficient performance prejudiced the defense. Black, 7 N.E.3d at 338. This part of the test requires proof that counsel's errors were so serious the defendant was deprived a fair trial. Ingalls, 213 N.E.3d at 548. A presumption exists that counsel's performance is effective, and a defendant must present strong and convincing evidence to overcome this presumption. Id. A failure to satisfy either part of the test will cause the claim to fail, and most ineffective assistance claims can be resolved by a prejudice inquiry alone. State v. Pearson, 191 N.E.3d 892, 898 (Ind.Ct.App. 2022).
[¶11] We begin with Dager's assertion that counsel failed to conduct a thorough investigation into possible mitigating evidence. At sentencing, counsel called Dager's mother who testified to Dager's good character, his childhood that was plagued by the drug addiction and physical abuse of his parents and other family members, her move with Dager from Las Vegas to Indiana (where they had no family) to escape the drugs and abuse, and the negative impact on him when she relapsed into substance abuse after the move. Counsel also called as a witness a family friend who was a father figure to Dager. He testified to his relationship with Dager and the impact Dager's mother's drinking had on Dager. In addition, counsel submitted to the court five character witness letters and Dager's commendation from the National Guard.
[¶12] Dager's counsel also proffered and discussed the mitigators of remorse, lack of intent to do harm, acceptance of responsibility, plea of guilty without the benefit of a plea agreement, youth, and potential for rehabilitation. And counsel advised that alcoholism is a medical condition and requested concurrent sentences of eight years with two years suspended so that Dager could undergo counseling and treatment for his alcohol addiction.
[¶13] To address Dager's assertion that trial counsel did not interview him before the sentencing hearing in order to understand his "childhood and situation," Dager asked trial counsel at the post-conviction hearing if he had considered meeting with Dager to investigate mitigating circumstances. Appellant's Br. p. 11. Counsel responded:
My typical practice was, when I first met with a defendant, after reviewing the - the discovery and the plea offer that I received, would be to go through any mitigating factors that I thought -um - would pertain to the case, as well as any aggravating factors, so that we could flesh those out before we got to any - uh - change of plea or sentencing 'cause I would use those same factors in plea negotiations with the prosecutor's office as I would present - uh - to a judge at a sentencing hearing.PCR Tr. Vol. 2 at 9. Counsel further testified that, in his recollection, he presented all the character witnesses and reference letters that Dager provided. Id. at 7.
[¶14] Effective assistance of counsel in conducting a mitigation investigation does not demand that counsel explore "'every conceivable line of mitigating evidence.'" Gibson v. State, 133 N.E.3d 673, 689 (Ind. 2019) (quoting Ritchie v. State, 875 N.E.2d 706, 719 (Ind. 2007)). Rather, counsel's duty encompasses a "'reasonable investigation[.]'" Id. Here, there is evidence of a reasonable investigation by counsel as well as a presentation of all the witnesses suggested by Dager. What's more, Dager's mother testified about Dager's childhood and his exposure to substance abuse and physical abuse, and he does not dispute her testimony.
[¶15] The only omitted allegedly mitigating factor Dager identifies is that he was "consistently shifting from the care of one family member to another." Appellant's Br. p. 11. Although Dager provides no context or explanation for the statement, this piece of information appears to merely put a finer point on one aspect of Dager's childhood. Given that evidence of Dager's difficult childhood and upbringing was presented at sentencing, as well as in counsel's submission to the court prior to the sentencing hearing, it is not likely the court would have valued this single piece of information as a significant mitigator.
[¶16] Indeed, in finding Dager's sentence not inappropriate on direct appeal, this Court considered his assertion that he "came from a family with substance abuse problems and where physical abuse was prevalent." Dager, No. 90A04-1508-CR-1210, at *2. However, the Court observed that generally evidence of a difficult childhood warrants little consideration in sentencing and found that counterbalancing Dager's upbringing and other factors such as his service in the National Guard was the fact that Dager had been put on parole for Class D felony sexual battery just two months prior to committing these offenses, had violated his probation, and had a prior conviction for public intoxication. Id.
[¶17] Thus, the record does not support Dager's contention that counsel's investigation was subpar.
[¶18] Dager next asserts that even if counsel's alleged failure to consult with him does not amount to ineffective assistance, such inaction in combination with counsel's failure to submit a sentencing memorandum to the court does. More specifically, Dager simply claims that because the State filed a sentencing memorandum with the court, it was error for his counsel not to file one also.
[¶19] Indiana Code section 35-38-1-11 (1983) allows, but does not require, a defendant to file with the court prior to sentencing a written memorandum setting forth information the defendant considers pertinent to sentencing and attach written statements from others. At the post-conviction hearing, counsel was asked if he typically submits sentencing memorandums. He responded that he generally does not do so "unless there was something unusual or something that I thought needed to be supported specifically by case law in order to present to the sentencing judge." PCR Tr. Vol. 2, p. 8. Even so, the record shows that prior to sentencing Dager's counsel did submit certain documents to the court for consideration in crafting Dager's sentence. Dager's counsel provided the court with the letters of character witnesses, some of which include information about Dager's childhood, as well as Dager's discharge and commendation documentation from the National Guard. See Trial Tr. Vol. II, p. 51. Moreover, counsel testified that he submitted all the character letters that Dager provided.
[¶20] Thus, even in combination, these claims demonstrate neither that counsel's assistance was defective nor that Dager was prejudiced. The post-conviction court did not err in denying Dager's petition.
II. Bias or Prejudice
[¶21] Dager next asserts that statements in the court's findings and conclusions provide a basis for doubting the judge's impartiality. Accordingly, Dager requests that the court's order denying his post-conviction petition be reversed and that his petition be heard by an unbiased judge.
[¶22] The law presumes judges are unbiased and unprejudiced. L.G. v. S.L., 88 N.E.3d 1069, 1073 (Ind. 2018). To rebut this presumption, a mere assertion of judicial bias is not sufficient; rather, the accusing party must establish the judge's actual bias or prejudice. Rochefort v. State, 177 N.E.3d 113, 118 (Ind.Ct.App. 2021) (quoting Smith v. State, 770 N.E.2d 818, 823 (Ind. 2002)), trans. denied. "Adverse rulings and findings by a trial judge are not sufficient reason to believe the judge has a personal bias or prejudice." L.G., 88 N.E.3d at 1073. Such bias or prejudice exists only where there is an undisputed claim or where the judge has expressed an opinion on the merits of the pending controversy. Id.
[¶23] Dager identifies three examples of the judge's alleged bias or prejudice against him. First, Dager contends that, in its judgment, the court "erroneously states that Counsel was the sole reason for all seven (7) continuances, suggesting that Counsel had unreasonably delayed the proceedings." Appellant's Br. p. 15. And second, Dager claims the court "paint[ed] a negative image of counsel" when it stated that defense counsel gave Dager's trial counsel just three business days' notice of the post-conviction hearing. Id. at 16.
[¶24] We presume Dager is referring to Findings 17 and 18, which state:
17. Counsel for Petitioner filed seven (7) separate motions to continue in this matter. Most recently, the matter was scheduled for hearing on October 19, 2023. The Court denied counsel's motion to continue; however, on the same date, trial counsel, Jeremy K. Nix, filed a motion to quash the subpoena issued to him because of his unavailability due to his involvement in a jury trial.
18. The Court granted a motion to continue and reset this matter for January 18, 2024. Despite the sole claim of the postconviction relief petition, ineffective assistance of counsel, Jonathan Harwell, Petitioner's counsel, did not issue a subpoena to Jeremy Nix until January 12 - three (3) business days before the hearing that had been scheduled for more than three (3) months.Appellant's App Vol. 2, p. 84. Dager does not argue that the facts stated in these findings are incorrect, and there is nothing to suggest the judge was doing anything other than setting out the procedural history of the case just as he did in the findings preceding these two findings.
[¶25] Lastly, Dager alleges the final paragraph of the court's judgment is problematic because it is an inaccurate representation of Dager's position and because it contains the judge's opinion on the merits of the case. The order states:
The Court finds Dager's Post-Conviction Relief counsel['s] conduct in this proceeding concerning. The matter has pended from [sic] more than two years because of counsel's multiple motions to continue. The hearing dates had previously been coordinated with counsel and scheduled for dates and times he indicated he would be available. Second, the petition was completely unsupported by any evidence. The arguments presented either were addressed in the underlying Court of Appeals decision or were presented to the Court of Appeals in an unrelated case where it was dismissed for failing to present any evidence. Counsel's actions have caused Dager and his family a financial burden, uncertainty for the families of the deceased, who were present at the hearing, and wasted judicial resources.Id. at 88. While the judge's comments on the conduct of Dager's counsel might be a bit strong, such remarks are not enough to overcome the presumption of an unbiased judge because they do not represent the judge's opinion on the merits of a pending controversy. Additionally, mere criticism of a party or his attorney does not indicate prejudice. O'Neal v. State, 716 N.E.2d 82, 87 n.9 (Ind.Ct.App. 1999) (quoting 46 AM. JUR. 2D Judges § 170 (1994)), trans. denied.
[¶26] Further, the portion of the paragraph where the judge does express an opinion on the merits of the controversy is likewise not indicative of the judge's bias or prejudice because the order is in fact a determination of the merits of the case. Indeed, in the paragraph immediately preceding the paragraph at issue, the court delivered its decision:
19. As such Dager's Petition for Post-Conviction Relief is DENIED.Appellant's App Vol. 2, p. 88. This Court has previously observed that statements by a judge will generally not be considered disqualifying bias or prejudice so long as the judge remains open minded enough to refrain from finally deciding a case until all the evidence has been presented. O'Neal, 716 N.E.2d at 87 n.9 (quoting 46 AM. JUR. 2D Judges § 170).
[¶27] These statements are merely judicial observations the judge gleaned in his judicial capacity, the use of which does not result in disqualification. See id.
Accordingly, Dager has failed to overcome the presumption that the judge is unbiased.
Conclusion
[¶28] We conclude the post-conviction court did not err by denying Dager's claim of ineffective assistance of trial counsel. We further conclude the post-conviction court's language and statements in its judgment do not constitute bias or prejudice. Accordingly, we affirm.
[¶29] Affirmed.
Bailey, J., and Vaidik, J., concur.