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Appeal in ’01 murder back in Allen

60-year conviction may turn on lawyer’s competency

Fourteen years after charges were filed against him, 32-year-old Troy Shaw appeared in Allen Superior Court on Friday, the next step in the appeal of his 2001 murder conviction.

His red Indiana Department of Correction jumpsuit standing out amid the orange of the Allen County Jail inmates, Shaw waited for news of whom the court would appoint to handle the rest of his appeal. Allen Superior Court Judge John Surbeck appointed the state public defender’s office to continue to work with Shaw on his case.

The former magazine salesman’s return to Allen County came about a month after the U.S. Supreme Court declined to hear the federal arm of his case. With the highest court’s refusal to hear the matter, a 2013 ruling by the 7th U.S. Circuit Court of Appeals remains in effect.

That ruling forced the U.S. District Court for the Southern District of Indiana to require the state’s appeals court to give Shaw’s case another look. Shaw turned to the federal courts through a writ of habeas corpus after the appeal of his conviction stalled at the state level.

But when the federal district court denied his request, Shaw appealed to the 7th U.S. Circuit Court of Appeals in Chicago, and it sided with him.

Judges at the 7th Circuit found that Shaw’s public defender, Gregory Miller, fell below the minimal constitutional requirement for legal effectiveness because he failed to raise the issue of whether it was proper for prosecutors to charge Shaw with murder when they did, a full six months after he was charged with aggravated battery.

When Miller handled Shaw’s appeal, he argued there was insufficient evidence to support a murder conviction. But such an argument is “dead on arrival,” according to the federal appeals court.

In a ruling handed down last September, the 7th Circuit ordered the case to be reconsidered by the federal court in Indianapolis, which promptly granted his request for a new appeal at the Indiana Court of Appeals.

After the state’s loss at the federal appeals court, the office of Indiana Attorney General Greg Zoeller sought a review of the 7th Circuit’s decision by the U.S. Supreme Court, which it declined to do.

In June 2000, 33-year-old Brett King was found dead outside the Valu Lodge motel, 3527 Coliseum Blvd. W., his head submerged in water in a rain-swollen ditch.

Shaw, from Findlay, Ohio, was one of a group of traveling magazine salesmen who were staying at the motel that night. When the group arrived at the motel after a trip to Cedar Point, King was found inside one of the rooms, lying on a bed. Someone confronted King and chased him outside, where he was beaten to death.

Five men were charged in connection with King’s death – Shaw; Benjamin Brooks of Tennessee; John Eric Werczynski of Virginia; Steven Johnson of West Virginia; and Kristopher D. Starling of Tennessee. They were charged with crimes including aiding in a battery, involuntary manslaughter and murder.

Prosecutors initially charged Shaw with aggravated battery, but in December 2001, citing new evidence, the charge was escalated to murder. Allen Superior Court Magistrate Robert Schmoll allowed the change in the charge over the objections of Shaw’s trial attorney, Nikos Nakos. Schmoll did grant a delay in the case, postponing the trial until February 2002. Shaw maintained his innocence throughout the court case. But witnesses told the jury they saw Shaw kick King’s head “like a football.”

Ultimately convicted, Shaw was sentenced to 60 years in prison for the crime. According to court records, the charge of aggravated battery was later dismissed.

In December 2002, Miller filed an appeal on behalf of Shaw, arguing that the state did not have enough evidence to support the murder charge. The appellate court rejected that argument and upheld Shaw’s conviction in June 2003. Shaw unsuccessfully sought to have Superior Court Judge Surbeck review his case in 2004 and change the outcome; four years later, that request was denied. Shaw appealed that decision as well.

During Friday’s brief hearing, Shaw told Surbeck his court-appointed state public defender has been working with him and suggested he would like to continue with him as his counsel.

Surbeck agreed, given the time already invested in the case, and also suggested that because the appellate issue centers on the performance of an Allen County public defender, there is a potential for conflict as the case progresses.

rgreen@jg.net

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