COA rejects perjury, ineffective assistance arguments in convicted murderer’s post-conviction appeal

Post-conviction relief will not be given to a convicted murderer who accused a prosecutor of suborned perjury and his appellate counsel of being ineffective, the Indiana Court of Appeals has affirmed.

In 1995, the state charged Michael T. Robinson with felony murder and Class A felony robbery after he shot and killed fellow drug dealer Michael Hobbs in Elwood. The state also charged Donald Peters, who was with Robinson during the murder, as a co-defendant.

In 1996, jury found Robinson guilty on both charges, and he was sentenced to 55 years, enhanced due to aggravating circumstances.

Robinson appealed his convictions and argued the prosecutor had committed misconduct by making allegedly prejudicial remarks in front of the jury. He further argued that the prosecutor had committed misconduct by withholding purportedly favorable evidence. The Indiana Supreme Court, however, affirmed.

Following the Supreme Court decision, Peters pleaded guilty to felony murder in 1999. The court ordered him to serve 30 years, to be served consecutive to his sentence on a probation revocation.

In 2003, Robinson filed his petition for post-conviction relief, which he amended in 2017. In his amended petition, Robinson alleged he had been denied a fundamentally fair trial because Prosecutor Rodney Cummings had suborned perjury from Peters when he asked Peters to testify as to whether Peters had a deal with the state, and Peters testified he had no deal.

Robinson also argued he had received ineffective assistance of appellate counsel in his direct appeal when his counsel did not argue for what at the time would have been a “novel application” of Indiana double jeopardy law to have his robbery conviction vacated.

The Madison Circuit Court denied Robinson’s petition, prompting the instant appeal of two issues:

• Whether Robinson showed reversible error on his freestanding claim that the prosecutor suborned perjury during his trial.
• Whether the post-conviction court erred when it concluded Robinson’s counsel on direct appeal did not render ineffective assistance when he did not raise the “novel” double jeopardy argument.

On the first issue, the appellate court concluded there wasn’t evidence before the post-conviction court showing Cummings suborned perjury.

“The implication from Cummings’ exchange with Peters was that there was no promise that Peters’ testimony at Robinson’s trial would benefit him,” Judge Edward Najam wrote for the court. “Peters entered an open plea, which left sentencing to the trial court’s discretion, and the trial court was not obliged to accept the State’s recommendation of a minimum sentence. Accordingly, Robinson has not shown that there was a plea ‘deal’ between the State and Peters, and he has not shown that the post-conviction court’s judgment on this issue is erroneous.”

On the issue of ineffective assistance, the appellate court found Robinson’s counsel made its decisions based on the precedent available at the time of the direct appeal, and the Sixth Amendment does not require counsel “to anticipate changes in the law.”

Robinson asserted that his appellate counsel should have relied on a footnote from a 1997 opinion of the Indiana Supreme Court, which was available to his counsel on direct appeal: Games v. State, 684 N.E.2d 466 (Ind. 1997).

“… The Sixth Amendment does not require counsel to speculate, and, thus, it did not require Robinson’s appellate counsel to anticipate our Supreme Court’s holding in Richardson,” Najam wrote, citing Richardson v. State, 717 N.E.2d 32 (Ind. 1999). “Indeed, the Games footnote on which Robinson’s argument is premised itself says that, at the time of Robinson’s direct appeal, there was no ‘independent state double jeopardy protection.’ Thus, based on the precedent available to Robinson’s appellate counsel at the time of his direct appeal, there was no state double jeopardy issue to raise.”

The case is Michael T. Robinson v. State of Indiana, 21A-PC-417.