Barnes v. State

 
 
 
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Pursuant to Ind.Appellate Rule 15(A)(3), 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 FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

ROSS G. THOMAS    STEVE CARTER
Dillon Law Office    Attorney General of Indiana    
Indianapolis, Indiana
             ADAM DULIK
Deputy Attorney General
Indianapolis, Indiana

 
IN THE COURT OF APPEALS OF INDIANA WILLIAM F. BARNES, ) )
Appellant-Petitioner,     )
)
vs.    )    No. 83A01-0008-PC-292
)
STATE OF INDIANA,    )
)
Appellee-Respondent.     )

 
APPEAL FROM THE VERMILLION CIRCUIT COURT
The Honorable Robert M. Hall, Special Judge
Cause No. 83C01-9206-CF-38

 
February 26, 2001

MEMORANDUM DECISION - NOT FOR PUBLICATION

RILEY, Judge
STATEMENT OF THE CASE
    Petitioner-Appellant, William F. Barnes (Barnes), appeals the denial of his petition for post-conviction relief.
    We affirm.
ISSUE
    On appeal, Barnes raises the sole issue of whether the post-conviction court erroneously denied his petition for post-conviction relief on the basis that one of the two psychiatrists, appointed by the trial court to evaluate Barnes' sanity and competence to stand trial, was not a disinterested psychiatrist, as required under Ind. Code § 35-36-2-2. See footnote
FACTS AND PROCEDURAL HISTORY
    In June of 1992, Barnes was charged with murder. The trial court entered a plea of not guilty and appointed counsel for Barnes. Barnes' counsel then filed a notice of insanity defense and a motion to determine competency. The court appointed two doctors, Dr. Dinesh Mehta and Dr. Cerra, to examine Barnes as to the insanity defense and also requested that the doctors examine him for competency to strand trial. Dr. Dinesh Mehta testified that he was of the opinion that Barnes was incompetent to stand trial, but that Barnes had the capacity to understand the nature of his act. Dr. Cerra testified that in his opinion Barnes was competent to stand trial, but that Barnes could not appreciate the wrongfulness of his act at the time it was committed.
    After a hearing, the trial court ruled that Barnes was competent to stand trial. A jury found Barnes to be guilty of murder but mentally ill. The trial judge sentenced Barnes to sixty (60) years.
    In his direct appeal, Barnes appealed his conviction to our supreme court, arguing: improper admission of photographs, erroneous finding of sanity at the time of the crime, and improper sentence. Our supreme court affirmed Barnes' conviction on May 6, 1994. Barnes v. State, 634 N.E.2d 46 (Ind. 1994).
    On September 9, 1996, Barnes filed a pro se petition for post-conviction relief, arguing inter alia, that one of the court appointed psychiatrists, Dr. Dinesh Mehta was not "disinterested" because his deceased wife, Dr. S. Mehta, had previously treated Barnes for mental illness. An evidentiary hearing was held on April 20, 2000, and on May 9, 2000, the post-conviction court denied Barnes' petition. Barnes now appeals.
DISCUSSION AND DECISION
PCR Standard of Review
A post-conviction petition under Ind. Post-Conviction Rule 1 is a quasi-civil remedy, and, as such, the petitioner bears the burden to prove by a preponderance of the evidence that he or she is entitled to relief. Mato v. State, 478 N.E.2d 57, 60 (Ind. 1985); Ind. Post-Conviction Rule 1(5). On appeal from the denial of a petition for post-conviction relief, we neither reweigh the evidence nor judge the credibility of the witnesses. Montano v. State, 649 N.E.2d 1053, 1056 (Ind. Ct. App. 1995), trans. denied. To prevail on appeal, the petitioner must show that the evidence is without conflict and leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind. 1995), reh'g denied. It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that the decision will be disturbed as being contrary to law. Id. at 1120.
The purpose of a petition for post-conviction relief is to provide a means for raising issues unknown or unavailable to a defendant at the time of the original trial and appeal. Carrington v. State, 678 N.E.2d 1143, 1146 (Ind. Ct. App. 1997), trans. denied. Post-conviction procedures are reserved for subsequent collateral challenges and may not provide a "super appeal" for the convicted. Weatherford v. State, 619 N.E.2d 915, 916 (Ind. 1993), reh'g denied. When the petitioner has already been afforded the benefit of a direct appeal, post-conviction relief contemplates a rather small window for further review. Montano, 649 N.E.2d at 1056. Thus, in general, if an issue was available on direct appeal but not litigated, it is deemed waived. Madden v. State, 656 N.E.2d 524, 526 (Ind. Ct. App. 1995), trans. denied. But see Woods v. State, 701 N.E.2d 1208, 1220 (Ind. 1998), reh'g denied, cert. denied, (holding that "a Sixth Amendment claim of ineffective assistance of trial counsel, if not raised on direct appeal, may be presented in post-conviction proceedings").
Disinterested Psychiatrist
    Barnes argues that Dr. Dinesh Mehta was not a disinterested psychiatrist as required by Ind. Code § 35-36-2-2, because Dr. Dinesh Mehta's now deceased wife, Dr. S. Mehta, previously treated Barnes for mental illness. Specifically, Barnes contends that because he left Dr. S. Mehta's care under unfavorable terms, including a dispute about her diagnosis and an unpaid financial obligation, there was great potential for a biased evaluation from Dr. Dinesh Mehta's in a way for his evaluation to conform to his late wife's diagnosis. We cannot agree.
Fundamental Error Standard of Review
Barnes did not address this alleged error in his direct appeal. While claims that were available, but not presented, on direct appeal are generally forfeited in post-conviction proceedings, forfeiture may not apply when the claimed error is fundamental. Conner v. State, 711 N.E.2d 1238, 1246 (Ind. 1999), reh'g denied, cert. denied. As set forth previously, the purpose of post-conviction relief is not to provide a substitute for direct appeal, but to provide a means for raising issues not known or available to the defendant at the time of the original appeal. Haynes v. State, 695 N.E.2d 148, 151 (Ind. Ct. App. 1998), trans denied. If an issue was available on direct appeal, but not raised, it is waived. Id. However, there exists an exception to the waiver rule in circumstances where the post-conviction court committed "fundamental error." Id. at 152. This exception is viewed as an extremely narrow one, available only when the record reveals clearly blatant violations of basic and elementary principles of due process, and the harm or potential for harm cannot be denied. Id. The doctrine of fundamental error has been described as a failure to meet the requirements of due process of law; however, it is clear that fundamental error is not equated with constitutional error. State v. Daniels, 680 N.E.2d 829, 835 (Ind. 1997). To qualify as fundamental error, an error must be so prejudicial to the rights of the defendant to make a fair trial impossible. Conner, 711 N.E.2d at 1246. However, the fundamental error doctrine is not to be used as a safe harbor for defendants who fail to raise proper and timely objections at trial. Haynes, 695 N.E.2d at 152. Rather, the post-conviction fundamental error standard requires the defendant to persuade the court, by a preponderance of the evidence, that a violation of basic principles of law caused the defendant's conviction or sentence to be invalid. Conner, 711 N.E.2d at 1246.
Waiver notwithstanding, Barnes' claim that Dr. Dinesh Mehta's evaluation was biased is without merit. In Stratton v. State, 499 N.E.2d 1123 (Ind. 1986), our supreme court held that two brothers who shared an office as psychiatrists, and were appointed by the trial court to examine the defendant to determine his mental state, were not biased simply because they shared professional and familial relationships. Id. at 1124. Thus, the Stratton court reasoned that because the brothers conducted separate examinations and reached independent conclusions, just as unrelated psychiatrists would have done under the same circumstances, the brothers were "disinterested" as required by Ind. Code § 35-36-2-2. Id.
In the present case, the post-conviction court concluded that Barnes failed to establish that one of the examining psychiatrists had a conflict of interest that prejudiced him. (R. 44). See footnote Specifically, the post-conviction court found that:
. . . the petitioner alleges a conflict of interest of Court appointed psychiatrist, Dinesh Mehta. The sole allegation relates to the Petitioner's contention that because he had several years prior to the crime been treated by the examiner's deceased wife with whom the petitioner had also had a controversy relative to social security disability and to whom the petitioner alleges that he still owed money, then the examining psychiatrist had a conflict of interest. There is no showing that the examiner, in fact, had such a conflict. There is no showing that there was any prejudice to the petitioner. There is no showing that any prior contacts by the examiner of deceased wife related in any way to the mental status of the petitioner at the time of the commission of the crime relative to his insanity defense or at the time of examination relative to his allegation of incompetancy [sic] to stand trial.
 
(R. 42-43).
    We agree with the post-conviction court that there is no showing of any prejudice to Barnes. The evidence reveals that Dr. Dinesh Mehta based his finding that Barnes was not competent to stand trial, but had the ability to distinguish right from wrong at the time of the murder, on his own examination of Barnes rather than relying on his wife's diagnosis. First, Dr. S. Mehta did in fact treat Barnes for mental illness, but her treatment of Barnes terminated in 1986. Second, Dr. Dinesh Mehta testified at Barnes' competency hearing that on July 27, 1992, he examined Barnes "for a couple of hours," (T.R. 172), and that he had "browsed" an old record of his wife's, but that it was "not terribly important [because he] was trying to judge basically as to how [Barnes] was at the time in my office." (T.R. 176). Dr. Dinesh Mehta also testified that he "basically based my judgment on my own examination certainly." Id. Moreover, Dr. Dinesh Mehta testified that he met with Barnes' wife for one hour on October 9, 1992, and that Barnes was under his care from September 28, 1992, until October 1, 1992, when Dr. Dinesh Mehta was able to see Barnes everyday. Next, Dr. Dinesh Mehta testified that he performed several tests to determine Barnes' sanity and competency, including physical neurological examinations, brain wave tests, CAT scans, intelligence tests, and personality tests. Finally, Dr. Dinesh Mehta testified that he based his opinion upon his observations and discussions with Barnes, a conversation with Barnes' wife, the police report, an eyewitness' deposition, and taped conversations between Barnes and the police. Based on the foregoing, and without reweighing the evidence or judging the credibility of the witnesses, we conclude that the evidence does not lead unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. The post-conviction court's denial of Barnes' petition for post-conviction relief was proper.
    The judgment of the post-conviction court is affirmed.
DARDEN, J., and ROBB, J., concur.
 

Footnote: In relevant part, Ind. Code § 35-36-2-2 provides as follows: At the trial of a criminal case in which the defendant intends to interpose the defense of insanity, evidence may be introduced to prove the defendant's sanity or insanity at the time at which the defendant is alleged to have committed the offense charged in the indictment or information. When notice of an insanity defense is filed, the court shall appoint two (2) or three (3) competent disinterested psychiatrists . . . to examine the defendant and to testify at trial.
Footnote: When referring to the post-conviction record, we will use "R." to refer to that record, and when referring to the trial record, we will use "T.R." to refer to that record.