Pursuant to Ind. Appellate Rule 65(D), 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, collateral estoppel, or the law of the case.

ATTORNEY S FOR APPELLANT : ATTORNEYS FOR APPELLEE : STEPHEN T. OWENS GREGORY F. ZOELLER Public Defender of Indiana Attorney General of Indiana JOHN PINNOW JAMES B. MARTIN Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indi anapolis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

LARRY PAGE , ) ) Appellant

- Petitioner , ) ) vs. ) No. 48A05

- 1311

- PC

- 556 ) STATE OF INDIANA, ) ) Appellee

- Respondent

. )

APPEAL FROM THE MADISON CIRCUIT COURT The Honorable Angela Warner Sims , Judge Cause No. 48C01

- 0910

- PC

- 553

June 18, 2014

MEMORANDUM DECISION
- NOT FOR PUBLICATION
CRONE, Judge2 Case Summary Larry Page was convicted of rape, criminal deviate conduct, and criminal confinement. On direct appeal, his appellate counsel argued that Page’s trial counsel provided ineffective assistance by failing to timely file a notice of insanity defense. We
concluded that trial counsel did not provide ineffective assistance because he had a sound, reasonable defense strategy and the rec ord was silent as to why he did not file a notice of insanity defense. Page filed a petition for postconviction relief (“PCR”), asserting that his appellate counsel provided ineffective assistance by raising the issue of ineffective assistance of trial

co unsel on direct appeal without the benefit of an evidentiary hearing. The postconviction court denied Page’s pe t ition. Page appeals , arguing that the postconviction court ’s
conclusion that his appellate counsel did not provide ineffective assistance is c ontrary to law

. We conclude that appellate counsel’s decision to raise the issue of ineffective assistance of trial counsel was objectively reasonable and that there was no evidence presented at the postconviction hearing that would have had a reasonable p robability of changing our decision on direct appeal. Therefore, we affirm. Facts and Procedural History Beginning in 1976, Page had been in and out of mental health facilities and diagnosed with paranoid schizophrenia. Trial R. at 35, 681, 686

- 87, 689, 693

- 94, 696, 709

- 12, 721, 723. He had a history of failing to take his medication and becoming actively psychotic. Id

. at 683, 691

- 94, 722. His I.Q. test results ranged from 60 to 72. Id . at 702, 706, 708. In3

1995, he was convicted of sexual battery. In September 1997, an assessment from the Center for Mental Health included the following opinion of Dr. Don Albaugh: “ [Page] will likely

re - offend and is unable to distinguish rape from consensual sex and

... he should remain in the state hospital.” Id

. at 678. In 1998, Page committed the offenses underlying this postconviction appeal , which

were summarized on direct appeal as follows : P.N. set off on foot from her boyfriend’s apartment in the early

- morning hours of May 29, 1998. As she was walking t owards a convenience store, she was approached by Page who asked her for a cigarette. He walked behind her for a while, eventually grabbing her and walking her to his apartment a short distance away. Inside the apartment, Page undressed P.N. while holdin g her down on the floor. Page inserted his fingers into P.N.’s vagina before forcing her to have sexual intercourse. Afterwards, Page led P.N. from the apartment and walked her back to the convenience store. P.N. finally evaded Page and ran across th e street to an auto repair shop for help. Page v. State , No. 48A05

- 0003

- CR

- 94, slip op. at 2 (Ind. Ct. App. Mar

. 16, 2001 ) ( “ Page I ”)

. The State charged Page with class B felony rape, class B felony criminal deviate conduct, and class D felony criminal confinement and alleged that he was a habitual offender. On August 31, 1998, Page filed a petition for psychiatric evaluation to determine whether the conduct for which he was accused was caused by a mental disease or defect

. The trial court granted th e petition and appointed D r . Susan M. Anderson and Dr. Gary L. Crawley to examine Page

. Trial R. at 12. Dr. Anderson concluded that Page appeared to have a psychiatric disorder such as schizophrenia or bipolar disorder but she was unable to give an opini on about his mental state at the time of the alleged crimes because he was4

unwilling to discuss the charges

. She also concluded that Page was competent to stand trial

. Dr. Crawley reported that Page appeared to suffer from chronic psychosis. Id . at 35. He
concluded that P age understood the basics of right and wrong but “ does not see how his behaviors result in any type of criminal offense.” Id

. He also concluded that Page was not competent to stand trial. Following a hearing, on December 11, 1998, t h e trial court found
that P age was incompetent to stand trial and committed him to the Department of Mental
H ealth. On June 4, 1999 , the department notified the trial court that Page was competent to
stand trial. On June 21, 1999, Page filed a petition for a psychiatric examination to determine
whether he was legally sane at the time of the alleged offense s , which t he trial court denied as untimely. Id . at 57. A jury trial was held from June 22 through 30 , 1999

. Page was
medicated , and his trial couns el described him as “more zombie like than ever.” Id . at 359.
Trial counsel pursued a strategy designed to show that Page and P.N. engaged in consensual
sexual intercourse. This trial ended in a mistrial because t he jury was unable to reach a
unanimous verdict , and a new trial was set

. On July 14, 1999 , the trial court ruled that Page had until July 28, 1999, to file a notice
of intent to assert a n insanity defense. Trial counsel did not file a notice

. From October 12 through 20 , 1999, a second ju ry trial was held

. During voir dire, Page made unsolicited , inappropriate statements and wore multiple pairs of socks. The following morning, trial
counsel moved for mistrial based on Page’s conduct and mental state

. Id . at 71, 363

- 64. The
trial court stated,5

[W]e have had a long standing dance, for lack of a better term, dancing around Mr. Page’s mental state, whatever it may be. And it was ... it was repeatedly, repeatedly , repeatedly , over and over and over and over again that he has a mental disease or defect. So when we got our hung jury we g ave you a window to request that and it was never done. I see all of this as trial strategy. If that is what you want, you were entitled to it. But you e lected to not do it.
Id . at 365

- 66. Page’s counsel re quested that P age “ be examine d to see if he is able to assist in his defense and to see if he is at this time ... if he has a mental disease or defect.” Id . at 374. The trial court responded , Now you know fully well we talked about that issue ad nauseam an d you lost your window of opportunity when you didn’t file your pleading. That is a defense you have to assert. And that was your big trump card. And you complained bitterly in the last trial. ... And then when we had the mistrial, okay you got fourteen ( 14) days, file the thing. And you didn’t do it. I take it that is trial strategy. I don’t know what it is.
Id . at 37 4

- 75 . The tr ial court conducted a competency examination and determined that Page was competent. As the trial progressed, P age con tinued to make outbursts. Trial counsel stated, “ [W] e are alleging mental disease or defect at this time and we would as[k] that the Court have him
examine d for that reason .” Id . at 563. The trial court told trial counsel that alleging mental
disease o r defect had to be done before the omnibus date. Trial counsel replied, “ I would hope that the statute leave[s] room for good cause and I think there is good cause to examine
him. ” Id

. The trial court responded, There cannot possibl y be good cause ... b ecause [the prosecutor] and I both brought it to your attention in exquisite detail that it had to be done during this omnibus window period after the mistrial. So I granted you a brand new omnibus date and g i ve [sic] you the opportunity to do it and for whatever reason, and for which is none of my business , it was not done.6

Id . at 564. Trial counsel stated that he had not had sufficient contact with Page to make that
determination. Id

. The trial court then discussed the difference between mental disea se or defe c t and competency to stand trial. Id

. Trial counsel stated, “ Our defense is that there was consensual intercourse.” Id . at 565

. In his opening argument, trial counsel told the jury that the evidence would show that
any sexual contact between Page and P.N. was consensual. Id . at 471 . In cross

- examining P.N., trial counsel tried to show that she was not going to her mother’s as she claimed , that
she had seen Page before, and she did not attempt to run away from Page or scream before
she entere d his apartment

. Id . at 531, 535

- 36, 583

- 84

. Trial counsel presented testimony of a neighbor who had seen Page and P.N. walking around together four or five times. Id . at 936

- 37

. I n his final argument , trial counsel argued that the evidence showed tha t P.N. consented to sexual intercourse with Page. Id . at 966

- 81. Th e jury found Page guilty as charged. The trial court imposed an aggregate sentence of fifty years. Page appealed his convictions and sentence. Page ’s appellate counsel argued, among

ot her things, that trial counsel provided ineffective assista nce by fail ing to timely file a notice
of defense of me n tal defect or diseas e . W e rejected his argument: The record reflects that Page’s trial counsel was fully informed by the trial court of the date by which he was to file the defense if he wished to assert it. Although trial counsel took nearly every opportunity outside of the jury’s presence to request a psychological evaluation or a mistrial due to Page’s mental health status, he remained sil ent as to why he did not file the defense during the appropriate time. Moreover, trial counsel had a clear and logical trial strategy throughout the jury trial with regard to Page’s defense. From the opening statement, the defense strategy was to convinc e the jury that the incident was not rape, but consensual sex. This strategy has a sound,7

reasonable basis, and was carefully designed to undermine the credibility of P.N.’s story. Page I , slip op. at 4. We affirmed Page’s convictions and sentence.
P age filed a PCR petition, asserting that his appellate counsel provided ineffective assistance by raising a claim of ineffective assistance of trial counsel on direct appea l without the benefit of a post conviction hearing. Page asserted that a post convict ion hearing would
have prod u ced evidence showing that his trial counsel was not permitted to raise an insanity
defense at trial because he failed to timely file notice of the defense. At the postconviction hearing, Page’s appellate counsel testified as fo llow s : [ W ] hen I first started doing criminal appeals it was common for us to raise ineffective assistance of [trial] counsel

... , if we felt like the record supported the claim. And then the [Indiana] Supreme Court came out with [ Woods v. State , 701 N.E.2d 1208 (Ind. 1998) ] and I know it was not my practice that, from that point forward in fact this is the only case I ever raised it again after that decision and if I recollect that decision, the rational [e] was the PCR proceeding is a better forum to raise t hat type of claim because you can develop factual issues that you may not be able to develop on direct appeal. I raised it in this case

... however because I felt like the record supported it, I thought it was a clear strong claim to make. I thought there was enough in the record to make the claim. So I raised it.
PCR Tr. at 10

- 11. Page’s appellate counsel also testified that he generally made it his practice to speak with trial counsel, but he did not specifically remember speaking to trial
counsel in t his case. Id . at 12. Page’s trial counsel also testified. When h e was asked whether he had wanted to pursue an insanity defense during the second trial, he answered, “Absolutely,” but the trial
court would not allow it. Id . at 18. Trial counsel was also asked whether he believed that his defense strategy of consensual sex was not a strong defense, and he responded , “At the point8

... that was the only defense if you could not use

... insanity, under the circumstances. ” Id

. at 23. T he post conviction cour t denied Page’s PCR petition and issued findings of fact and conclusions of law, which provided in relevant part, 12. There was little new evidence presented at the post

- conviction hearing. The only major addition was trial counsel’s testimony about his defense strategy. However, before soliciting the testimony of trial counsel, any appellate counsel would have to be aware that there are two potential outcomes: that the failure to interpose a timely notice either was or was not a trial strategy. It is human nature to rationalize after

- the

- fact our own deficiencies and inadequacies. Appellate counsel could logically have concluded it better to present the case on its record rather than to run the risk that trial counsel’s testimony might ultimately not be helpful to his client’s argument. 13. It was not outside an objective standard of reasonableness for [appellate counsel] to conclude that the appellate court might find the record on its face sufficient to show ineffective assistance of trial counsel. Trial counsel’s actions o r strategic decisions were arguably outside the bounds of the professional norm since, notwithstanding his client having a long

- standing history or serious mental health issues and even having been found incompetent to stand tria l in this matter for a period of several months, trial counsel failed, not once but twice, to timely file a notice to interpose a defense of mental disease or defect. Appellant’s App . at 8 7

- 8 8.
Discussion and Decision Page appeals the denial of his PCR p etition.
Post

- conviction proceedings provide defendants the opportunity to raise issues not known or available at the time of the original trial or direct appeal. In post

- conviction proceedings, the defendant bears the burden of proof by a preponderance of the evidence. We review factual findings of a post

conviction court under a clearly erroneous standard but do not defer to any legal conclusions. We will not reweigh the evidence or judge the credibility of the witnesses and will examine only the prob ative evidence and reasonable inferences therefrom that support the decision of the post

- conviction court. Additionally, the PCR court here entered findings of fact and conclusions9

thereon, as required by Indiana Post

- Conviction Rule 1(6). We cannot affi rm the judgment on any legal basis, but rath er, must determine if the court’ s findings are sufficient to support the judgment.
Woodson v. State , 961 N.E.2d 1035, 1040

- 41 (Ind. Ct. App. 2012) (citations and quotation marks omitted), trans. denied

.

A peti tioner who has been denied post

- conviction relief

... appeals from a negative judgment.

... When a petitioner appeals from a negative judgment, he or she must convince the appeals court that the evidence as a whole leads unerringly and unmistakably to a deci sion opposite t hat reached by the trial court. Stated slightly differently, this Court will disturb a post

- conviction court’ s decision as being contrary to law only where the evidence is without conflict and leads to but one conclusion, and the post

- convi ction court has reach ed the opposite conclusion.
Lambert v. State , 743 N.E.2d 719, 726 (Ind. 2001) (citations and quotation marks omitted) , cert. denied (2002)

. Page contends that his appellate counsel provided ineffective assistance by failing to adequ ately present the issue of ineffective assistance of trial counsel

. We observe that “[t] he Sixth Amendment to the United States Constitution guarantees the defendant the right to effective assistance of counsel.” Latta v. State , 743 N.E.2d 1121, 1125 (In d. 2001) (citing Strickland v. Washington , 466 U.S. 668, 686 (1984)). To prevail on a claim of ineffective
assistance , a petitioner must de monstrate both that his counsel’ s performance was deficient and that he was prejudiced thereby. Ward v. State , 969 N.E.2d 46 , 51 (Ind. 2012) (citing
Strickland , 466 U.S. at 687)

. To establish deficient performance, a petition er must demonstrat e that counsel ’s representation “‘ fell below an objective standard of reasonableness, committing errors so serious that the def endant did not have the counsel guaranteed by the Sixth Amendment. ’ ” Reed v. State , 866 N.E.2d 767, 769 (Ind. 2007)10

(quoting McCary v. State , 761 N.E.2d 389, 392 (Ind. 2002) )

. To establish prejudi c e , the
defendant must show that there is a reasonable pr o bability that, but for counsel’ s unprofessional errors, the result of the proceeding would have been different. Latta , 743
N.E.2d at 1125 . “‘ A reasonable probability is a probability sufficient to undermine
confidence in the outcome. ’ ” Id

. ( quoting Stri ckland , 466 U.S. at 69 4). Claims of ineffective assistance of appellate counsel fall into three categories: “ (1) denying access to an appeal, (2) failing to raise issues, and (3) failing to present issues competently. ” Timberlake v. State , 753 N.E.2d 591, 604 (Ind. 2001) . Page ’s claim falls in
the third

. When the claim of ineffective assistance is directed at appellate counsel for failing fully and properly to raise and support a claim of ineffective assistance of trial counsel, a [petitioner] faces a compound burden on postconviction. The postconviction court must conclude t hat appellate counsel’ s performance was deficient and that, but for the deficiency of a ppellate counsel, trial counsel’ s performance would have been found deficient and prejudicia l. Thus, [the pet it ioner’s] burden before the postconviction court was to establish the two elements of ineffective assistance of counsel separately as to both trial and appellate counsel.
Id

. ( c itations omitted )

. Specifically, Page argues that appella te counsel performed below an objective
standard of reasonableness by presenting a claim of ineffective assistance of trial counsel on direct appeal without the benefit of an evidentiar y hearing that could have been provided through a Davis

- Hatton procedur e. 1 Page asserts that an evidentiary hearing would have

1 The Davis

- Hatton procedure permits a termination or suspension of a direct appeal already initiated, upon appellate counsel’s motion for remand or stay, so that the defendant may pursue a PCR petition in the trial court. Peaver v. State , 937 N.E.2d 896, 897 n.1 (Ind. Ct. App. 2010), trans. denied (2011).11

established that trial counsel raised consensual sexual intercourse as a defense only because the trial court refused to let him untimely raise an insanity defense

. To support his arg u ment , Page rel ies on trial counsel’s testimony at the PCR hearing that he wanted to raise an insanity defense but the trial court would not permit it

. Although there may be circumstances in which raising the issue of ineffective
assistance of trial counsel on direct appeal without a n evidentiary hearing constitutes ineffective assistance of appellate counsel, in this case the postconviction court ’s conclusion that appellate counsel did not provide ineffective assistance is not contrary to law

. The trial
record shows that Page had an extensive history of serious mental illness

. Trial counsel filed a notice of insanity defense before the first trial, but it was denied as untimely

. At the first trial, trial counsel pursued a strategy to show t hat Page and P.N. engaged in consensual
sexual intercourse

. That the trial ended in a hung jury suggest s that the consent strategy was persuasive. Before the second trial, trial counsel did not file a notice of insanity defense despite being given an opportunity to do so . Never theless, during the second trial, trial
counsel attempted to raise an insanity defense but the trial court would not permit it . Given Page’s history of mental illness and the fact that trial counsel twice missed his opportunit y to raise the insanity defen se, appellate counsel’s decision to raise the issue of ineffective
assistance of trial counsel on direct appeal was objectively reasonable. In concluding on direct appeal that t rial counsel did not provide ineffective assistance , t his Court reasoned tha t trial counsel had a sound, reasonable defense strategy and further
noted that the record did not reveal why trial counsel did not timely file the notice of insanity12

defense

. Th at question was not answered at the postconviction hearing. Trial counsel di d not testify to, nor was he asked, why he did not file the notice of insanity defense in the designated time

. In other words, no evidence was presented as to whether trial counsel
intended to file the notice and negligently failed to do so or whether dur ing the designated time he strategically decided not to file the notice or whether there is some other reason that
he did not file the notice. Accordingly, Page fails to persuade us that but for appellate counsel’s failure to obtain an evidentiary hearing , there was a reasonable probability that we would have concluded that trial counsel provided ineffective assistance. Therefore, we affirm the denial of Page’s PCR petition.
Affirmed. BAKER, J., and BARNES, J., concur.