Defendant loses on ineffective counsel claim

September 4, 2014

A defendant did not show that he was denied the effective assistance of appellate counsel, so the court correctly denied his petition for post-conviction relief, the Indiana Court of Appeals ruled.

In Tracey L. Wheeler, Jr. v. State of Indiana, 84A01-1404-PC-153, Tracey Wheeler appealed the denial of his petition for post-conviction relief. He argued that he asserted his right to self-representation during his trial for dealing cocaine and maintaining a common nuisance and his appellate counsel was ineffective for not alleging he had been denied his right of self-representation.

Leading up to his trial, Wheeler informed the court at least thirteen times that he believed his court-appointed attorneys were performing deficiently. He also mentioned he could represent himself instead. The trial court declined to dismiss his court-appointed attorney; he was convicted and sentenced to 35 years in prison.

When he appealed, his court appointed attorney John Pinnow only raised the issue of whether the trial court abused its discretion by admitting evidence obtained pursuant to an allegedly invalid search warrant. Wheeler’s convictions were affirmed, which led him to file a pro-se petition for post-conviction relief.

Wheeler claimed that Pinnow should have argued that Wheeler was denied his right of self-representation, in contravention of Farreta v. California, 422 U.S. 806 (1975). But Pinnow stated in his affidavit that he rejected Wheeler’s self-defense issue because it wasn’t a strong issue for appeal. He said he researched Farreta and Indiana caselaw, and he decided that Wheeler hadn’t maintained a consistent position of asking to represent himself, so he did not present the issue on appeal.

The appeals court looked at Wheeler’s communications with the court and held he did not – without equivocation or subsequent conduct indicating vacillation – assert his right to self-representation. It actually appears that Wheeler engaged in a tactical campaign to procure counsel more to his liking, Judge L. Mark Bailey wrote.


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