MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 28 2018, 11:37 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Curtis T. Hill, Jr. Public Defender of Indiana Attorney General of Indiana Tracy A. Nelson Chandra K. Hein Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Julian D. Grady, February 28, 2018 Appellant-Petitioner, Court of Appeals Case No. 02A03-1708-PC-1962 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Respondent Judge Trial Court Cause No. 02D05-1212-PC-218
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1708-PC-1962 | February 28, 2018 Page 1 of 7 [1] Julian Grady appeals from the denial of his petition for post-conviction relief,
arguing that the post-conviction court erroneously determined that he did not
receive the ineffective assistance of appellate counsel. Finding no error, we
affirm.
Facts [2] The underlying facts of this case were summarized by this Court in Grady’s
direct appeal as follows:
On November 22, 2008, Benjamin Busbee, Angela Day, and Andrea Simon were in a store named “Twenty Past Four” in Fort Wayne, Indiana. Busbee and Day were at the store to assist Simon, Busbee’s mother, who managed the store. Shortly thereafter, Grady and another male entered the store with firearms and proceeded to rob the store. Grady was “much taller” than the other perpetrator and wore a mask. Nonetheless, the mask did not cover his entire face, exposing his “main features,” including his mouth, nose, and eyes. Both men jumped on the counter and ordered Busbee, Day, and Simon to get on the floor. While Day and Simon kneeled down, Busbee lay on his back side looking at Grady. Grady ordered Busbee to stop when he saw that Busbee was looking at him. Grady emptied the cash register while the other perpetrator rummaged around looking for the safe. Both men left through the rear door, and police were notified.
Grady v. State, No. 02A04-1004-CR-210, at *1 (Ind. Ct. App. Aug. 6, 2010)
(internal citations omitted). On February 4, 2009, the State charged Grady with
Class B felony robbery, Class D felony pointing a firearm, and Class D felony
criminal recklessness. Following a jury trial, the jury found Grady guilty as
Court of Appeals of Indiana | Memorandum Decision 02A03-1708-PC-1962 | February 28, 2018 Page 2 of 7 charged. On November 13, 2009, the trial court sentenced Grady to
consecutive terms of ten years for robbery and one and one-half years for
pointing a firearm; the trial court vacated the criminal recklessness conviction
based on double jeopardy concerns. Grady appealed the convictions, raising
only one argument, which related to the victims’ photo array identification of
Grady. This Court affirmed. Id.
[3] On December 6, 2012, Grady filed a petition for post-conviction relief, arguing,
among other things, that he received the ineffective assistance of appellate
counsel because appellate counsel did not make a double jeopardy argument
related to the robbery and pointing a firearm convictions in his direct appeal.
Following an evidentiary hearing, on August 2, 2017, the post-conviction court
denied Grady’s petition. Grady now appeals.
Discussion and Decision I. Standard of Review [4] The general rules regarding the review of a ruling on a petition for post-
conviction relief are well established:
“The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). “When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment.” Id. To prevail on appeal from the denial of post- conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. Court of Appeals of Indiana | Memorandum Decision 02A03-1708-PC-1962 | February 28, 2018 Page 3 of 7 State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post- conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post–Conviction Rule 1(6). Although we do not defer to the post-conviction court’s legal conclusions, “[a] post-conviction court’s findings and judgment will be reversed only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (quotation omitted).
Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).
[5] Grady’s sole argument on appeal is that the post-conviction court erroneously
determined that he did not receive the ineffective assistance of appellate
counsel. To establish ineffective assistance of appellate counsel, the petitioner
must show that (1) appellate counsel was deficient in his or her performance,
and (2) the deficiency resulted in prejudice. Id. at 269. Failure to satisfy either
prong will cause the claim to fail. Henley v. State, 881 N.E.2d 639, 644 (Ind.
2008). To satisfy the second prong, the defendant must show a reasonable
probability that, but for counsel’s errors, the result of the proceeding would
have been different. Id.
II. Assistance of Appellate Counsel [6] Grady argues that his appellate counsel was ineffective because counsel did not
argue in the direct appeal that Grady’s convictions for robbery and pointing a
firearm violate the prohibition against double jeopardy. Indiana’s double
jeopardy clause was intended to prevent the State from being able to proceed
against a person twice for the same criminal transgression. Wharton v. State, 42
Court of Appeals of Indiana | Memorandum Decision 02A03-1708-PC-1962 | February 28, 2018 Page 4 of 7 N.E.3d 539, 541 (Ind. Ct. App. 2015). Our Supreme Court has held that two or
more offenses are the “same offense,” in violation of our Constitution’s double
jeopardy clause, “if, with respect to either the statutory elements of the
challenged crimes or the actual evidence used to convict, the essential elements
of one challenged offense also establish the essential elements of another
challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)
(emphases original).
[7] Here, Grady argues that his convictions violate the actual evidence test. Under
that test, the “actual evidence presented at trial is examined to determine
whether each challenged offense was established by separate and distinct facts.”
Id. at 53. To establish a double jeopardy violation under this test, the defendant
“must demonstrate a reasonable possibility that the evidentiary facts used by the
fact-finder to establish the essential elements of one offense may also have been
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 28 2018, 11:37 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Curtis T. Hill, Jr. Public Defender of Indiana Attorney General of Indiana Tracy A. Nelson Chandra K. Hein Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Julian D. Grady, February 28, 2018 Appellant-Petitioner, Court of Appeals Case No. 02A03-1708-PC-1962 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Respondent Judge Trial Court Cause No. 02D05-1212-PC-218
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1708-PC-1962 | February 28, 2018 Page 1 of 7 [1] Julian Grady appeals from the denial of his petition for post-conviction relief,
arguing that the post-conviction court erroneously determined that he did not
receive the ineffective assistance of appellate counsel. Finding no error, we
affirm.
Facts [2] The underlying facts of this case were summarized by this Court in Grady’s
direct appeal as follows:
On November 22, 2008, Benjamin Busbee, Angela Day, and Andrea Simon were in a store named “Twenty Past Four” in Fort Wayne, Indiana. Busbee and Day were at the store to assist Simon, Busbee’s mother, who managed the store. Shortly thereafter, Grady and another male entered the store with firearms and proceeded to rob the store. Grady was “much taller” than the other perpetrator and wore a mask. Nonetheless, the mask did not cover his entire face, exposing his “main features,” including his mouth, nose, and eyes. Both men jumped on the counter and ordered Busbee, Day, and Simon to get on the floor. While Day and Simon kneeled down, Busbee lay on his back side looking at Grady. Grady ordered Busbee to stop when he saw that Busbee was looking at him. Grady emptied the cash register while the other perpetrator rummaged around looking for the safe. Both men left through the rear door, and police were notified.
Grady v. State, No. 02A04-1004-CR-210, at *1 (Ind. Ct. App. Aug. 6, 2010)
(internal citations omitted). On February 4, 2009, the State charged Grady with
Class B felony robbery, Class D felony pointing a firearm, and Class D felony
criminal recklessness. Following a jury trial, the jury found Grady guilty as
Court of Appeals of Indiana | Memorandum Decision 02A03-1708-PC-1962 | February 28, 2018 Page 2 of 7 charged. On November 13, 2009, the trial court sentenced Grady to
consecutive terms of ten years for robbery and one and one-half years for
pointing a firearm; the trial court vacated the criminal recklessness conviction
based on double jeopardy concerns. Grady appealed the convictions, raising
only one argument, which related to the victims’ photo array identification of
Grady. This Court affirmed. Id.
[3] On December 6, 2012, Grady filed a petition for post-conviction relief, arguing,
among other things, that he received the ineffective assistance of appellate
counsel because appellate counsel did not make a double jeopardy argument
related to the robbery and pointing a firearm convictions in his direct appeal.
Following an evidentiary hearing, on August 2, 2017, the post-conviction court
denied Grady’s petition. Grady now appeals.
Discussion and Decision I. Standard of Review [4] The general rules regarding the review of a ruling on a petition for post-
conviction relief are well established:
“The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). “When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment.” Id. To prevail on appeal from the denial of post- conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. Court of Appeals of Indiana | Memorandum Decision 02A03-1708-PC-1962 | February 28, 2018 Page 3 of 7 State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post- conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post–Conviction Rule 1(6). Although we do not defer to the post-conviction court’s legal conclusions, “[a] post-conviction court’s findings and judgment will be reversed only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (quotation omitted).
Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).
[5] Grady’s sole argument on appeal is that the post-conviction court erroneously
determined that he did not receive the ineffective assistance of appellate
counsel. To establish ineffective assistance of appellate counsel, the petitioner
must show that (1) appellate counsel was deficient in his or her performance,
and (2) the deficiency resulted in prejudice. Id. at 269. Failure to satisfy either
prong will cause the claim to fail. Henley v. State, 881 N.E.2d 639, 644 (Ind.
2008). To satisfy the second prong, the defendant must show a reasonable
probability that, but for counsel’s errors, the result of the proceeding would
have been different. Id.
II. Assistance of Appellate Counsel [6] Grady argues that his appellate counsel was ineffective because counsel did not
argue in the direct appeal that Grady’s convictions for robbery and pointing a
firearm violate the prohibition against double jeopardy. Indiana’s double
jeopardy clause was intended to prevent the State from being able to proceed
against a person twice for the same criminal transgression. Wharton v. State, 42
Court of Appeals of Indiana | Memorandum Decision 02A03-1708-PC-1962 | February 28, 2018 Page 4 of 7 N.E.3d 539, 541 (Ind. Ct. App. 2015). Our Supreme Court has held that two or
more offenses are the “same offense,” in violation of our Constitution’s double
jeopardy clause, “if, with respect to either the statutory elements of the
challenged crimes or the actual evidence used to convict, the essential elements
of one challenged offense also establish the essential elements of another
challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)
(emphases original).
[7] Here, Grady argues that his convictions violate the actual evidence test. Under
that test, the “actual evidence presented at trial is examined to determine
whether each challenged offense was established by separate and distinct facts.”
Id. at 53. To establish a double jeopardy violation under this test, the defendant
“must demonstrate a reasonable possibility that the evidentiary facts used by the
fact-finder to establish the essential elements of one offense may also have been
used to establish the essential elements of a second challenged offense.” Id.
Grady contends, essentially, that because Simon is the listed victim in the
robbery charge and is also one of the possible victims in the pointing a firearm
charge, there is a reasonable possibility that the jury used the same evidentiary
facts to establish the essential elements of both charges.
[8] To convict Grady of Class D felony pointing a firearm, the State was required
to prove beyond a reasonable doubt that he knowingly or intentionally pointed
a firearm at Simon, Busbee, and/or Day. Ind. Code § 35-47-4-3(b) (2009); see
also Appellant’s Direct Appeal App. p. 14 (charging information). Busbee
testified that when Grady walked into the store, Busbee could see an AK-47
Court of Appeals of Indiana | Memorandum Decision 02A03-1708-PC-1962 | February 28, 2018 Page 5 of 7 assault rifle in Grady’s jacket. Trial Tr. p. 90. Grady pulled the weapon from
his jacket, pointed it directly at Busbee, and demanded that he and Day, who
was standing next to Busbee, get on the floor. Id. at 90, 132. Simon then
entered the room, at which point Grady pointed the gun at her and ordered her
to get onto the floor. Id. at 91, 156, 158-59. Simon agreed that there were
“guns pointed at everybody in that room . . . .” Id. at 170. Regardless of which
person the jury found was the victim of this offense, the offense was complete
before the robbery occurred.
[9] To convict Grady of Class B felony robbery, the State was required to prove
beyond a reasonable doubt that he (1) knowingly or intentionally took property
from Simon (2) by using or threatening the use of force on any person or by
putting any person in fear, (3) while armed with a deadly weapon. Ind. Code §
35-42-5-1 (2008); see also Appellant’s Direct Appeal App. p. 12 (charging
information). After Grady ordered Busbee, Day, and Simon to get on the floor,
he took money from the cash register and from Simon’s wallet while armed
with a deadly weapon. To convict Grady of this offense, the State was not
required to prove that he pointed a gun at Simon; instead, it needed to prove
only that he was armed with a deadly weapon and put Simon, Busbee, or Day
in fear.1 In other words, he committed two separate acts with the weapon: (1)
1 Simon testified that she was “scared for [her] life” during the encounter, trial tr. p. 163, Busbee testified that he felt “scared” and “threatened,” id. at 92, and Day testified that she was “very” scared, id. at 134.
Court of Appeals of Indiana | Memorandum Decision 02A03-1708-PC-1962 | February 28, 2018 Page 6 of 7 he pointed it at Simon, Busbee, and/or Day; and (2) he was armed with it while
robbing Simon.
[10] Therefore, even if the jury found that Simon was the victim of the pointing a
firearm offense, it would not have used that same evidence to convict Grady of
robbing Simon. We see no reasonable possibility that the jury used the same
evidentiary facts to convict Grady of both offenses. Under these circumstances,
even if Grady’s appellate counsel had raised this issue in his direct appeal, the
argument would not have been successful and the result of the appeal would
not have been different. Consequently, the post-conviction court did not err by
finding that Grady did not receive the ineffective assistance of appellate counsel
or by denying Grady’s petition for post-conviction relief.
[11] The judgment of the post-conviction court is affirmed.
Riley, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1708-PC-1962 | February 28, 2018 Page 7 of 7