MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), 08/28/2017, 10:11 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral 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 J. Michael Sauer Christina D. Pace Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kenneth S. Tipton, August 28, 2017 Appellant-Defendant, Court of Appeals Case No. 47A01-1704-PC-838 v. Appeal from the Lawrence Superior Court State of Indiana, The Honorable William G. Sleva, Appellee-Plaintiff. Judge Trial Court Cause No. 47D02-1412-PC-1564
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017 Page 1 of 13 Case Summary and Issue [1] Kenneth Tipton appeals the denial of his petition for post-conviction relief. He
raises one issue for our review: whether the post-conviction court erred in
concluding Tipton’s appellate counsel was not ineffective. Concluding Tipton
did not receive ineffective assistance of appellate counsel, we affirm.
Facts and Procedural History [2] We summarized the facts and procedural history of this case in Tipton’s direct
appeal:
On August 16, 2009, two Bedford police officers went to Tipton’s house to arrest him after his wife reported a domestic battery. Tipton’s brother Donnie allowed the officers to enter the house, and he told the officers he was there alone. As one officer walked toward the hallway, he saw Tipton coming toward him with a gun. The officer yelled “gun” and both officers tried to exit through the front door. Tipton fired a shot while the officers were still in the house.
The officers ran in different directions when they left the house, and they sought cover behind trucks. Tipton fired at one of the officers, and then retreated into the house. The other officer called for reinforcements. Tipton allowed his brother to leave the house, but then he fired another shot. After additional officers arrived, Tipton fired more shots, two of which hit a police car. Some shots hit the house across the street. The residents, Adam Mullis and his wife, were not home at the time.
Police spoke to Tipton on the telephone, and Tipton agreed he would surrender if he were charged with only a minor offense. An officer at the police station wrote a letter saying Tipton would be charged only with criminal recklessness if he surrendered, and the officer read the letter to Tipton over the telephone. Tipton surrendered . . . .
Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017 Page 2 of 13 Tipton v. State, 981 N.E.2d 103, 105 (Ind. Ct. App. 2012) (citation omitted),
trans. denied. Following his arrest, law enforcement executed a search warrant
and discovered numerous marijuana plants, in various stages of growth, in
Tipton’s garage. Law enforcement also found lights, a glass pipe, and a digital
scale. The State charged Tipton with criminal recklessness, attempted murder,
and dealing in marijuana. The State also filed an habitual offender
enhancement. A jury acquitted Tipton of attempted murder but found him
guilty of the other charges.
[3] At sentencing, Tipton argued his sentence could not exceed ten years because
the offenses were part of a single episode of criminal conduct. In response, the
State argued that the different stages of growth exhibited by the marijuana
plants found in Tipton’s garage demonstrated the operation was occurring prior
to and distinct from Tipton’s criminally reckless acts. The trial court agreed the
events were not a single episode of criminal conduct and sentenced Tipton to a
total of twenty-three years in the Indiana Department of Correction.
[4] Tipton appealed his convictions and sentence raising two issues on direct
appeal: (1) whether the evidence was sufficient to support his criminal
recklessness conviction, and (2) whether the trial court erred in not designating
which conviction was to be enhanced by the habitual offender adjudication.
This court affirmed Tipton’s convictions and sentence.
Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017 Page 3 of 13 [5] On December 4, 2014, Tipton filed a pro se petition for post-conviction relief.
The post-conviction court held an evidentiary hearing on February 16, 2017.
At the evidentiary hearing, Tipton introduced into evidence a signed affidavit
from his appellate public defender verifying she failed to raise the issue that
Tipton’s actions constituted a single episode of criminal conduct and should
have done so. On April 12, 2017, the post-conviction court denied Tipton’s
petition for post-conviction relief. Tipton now appeals.
Discussion and Decision I. Standard of Review [6] Post-conviction proceedings are not an opportunity for a super-appeal.
Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839
(2002). Rather, they create a narrow remedy for subsequent collateral
challenges to convictions that must be based on grounds enumerated in the
post-conviction rules. Id. If not raised on direct appeal, a claim of ineffective
assistance of counsel is properly presented in a post-conviction proceeding. Id.
A claim of ineffective assistance of appellate counsel is also an appropriate issue
for post-conviction review. Id. The petitioner must establish his claims by a
preponderance of the evidence. Ind. Post-Conviction Rule 1(5).
[7] A petitioner who has been denied post-conviction relief faces a “rigorous
standard of review” on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).
In reviewing the judgment of a post-conviction court, we may not reweigh the
evidence nor reassess witness credibility; rather we consider only the evidence Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017 Page 4 of 13 and reasonable inferences supporting the judgment. Hall v. State, 849 N.E.2d
466, 468-69 (Ind. 2006). We will affirm the post-conviction court’s denial of
post-conviction relief unless the evidence leads “unerringly and unmistakably to
a decision opposite that reached by the post-conviction court.” McCary v. State,
761 N.E.2d 389, 391 (Ind. 2002).
II. Ineffective Assistance of Appellate Counsel [8] Tipton contends his appellate counsel was ineffective for failing to argue on
direct appeal that his convictions for criminal recklessness and dealing in
marijuana arose from an “episode of criminal conduct.” The standard of
review for a claim of ineffective assistance of appellate counsel is the same as
that for trial counsel. Allen v. State, 749 N.E.2d 1158, 1166 (Ind. 2001), cert.
denied, 535 U.S. 1061 (2002).
Therefore, [t]o prevail on an ineffective assistance of counsel claim, [the petitioner] must show both deficient performance and resulting prejudice. As for the first prong—counsel’s performance—we presume that counsel provided adequate representation. Accordingly, [c]ounsel is afforded considerable discretion in choosing strategy and tactics, and we will accord that decision deference. The second prong—the prejudicial effect of counsel’s conduct—requires a showing that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Id. at 166-67 (citations and quotations omitted).
Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017 Page 5 of 13 [9] Indiana law states there are three categories of alleged appellate counsel
ineffectiveness: 1) denying access to an appeal; 2) failing to raise an issue on
appeal; and 3) failing to present an issue completely and effectively. Bieghler v.
State, 690 N.E.2d 188, 193-95 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998).
Counsel is rarely found to be ineffective when the issue is failure to raise a claim
on direct appeal. Id. at 193. “One reason for this is that the decision of what
issues to raise is one of the most important strategic decisions to be made by
appellate counsel.” Id. (internal citation omitted). “Accordingly, when
assessing these types of ineffectiveness claims, reviewing courts should be
particularly deferential to counsel’s strategic decision to exclude certain issues
in favor of others, unless such a decision was unquestionably unreasonable.”
Id. at 194.
[10] Here, Tipton first argues his appellate counsel admitted in a sworn affidavit she
failed to raise the episode of criminal conduct issue and should have. However,
counsel’s admission is not dispositive of the issue and we need not decide
whether appellate counsel’s performance was deficient because Tipton has
failed to demonstrate prejudice on his claim of ineffective assistance of appellate
counsel. See Young v. State, 746 N.E.2d 920, 927 (Ind. 2001) (explaining that it
was not necessary to address the allegations of deficient performance where the
petitioner had failed to establish prejudice).
[11] To succeed on his ineffective appellate counsel claim, “the prejudice-prong of
Strickland requires [Tipton] to demonstrate a reasonable probability that, but for
his counsel’s errors, the result of his direct appeal would have been different.”
Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017 Page 6 of 13 Martin v. State, 760 N.E.2d 597, 600 (Ind. 2002) (citing Strickland, 466 U.S. 668,
694 (1984)). Thus, to show prejudice on his ineffective appellate counsel claim
regarding counsel’s failure to raise the sentencing issue, Tipton is required to
show that but for his appellate counsel’s failure to raise the issue, this court
would have reversed the trial court’s twenty-three-year sentence for failing to
comply with Indiana Code section 35-50-1-2(b) and (c).
[12] Tipton has not shown there is a reasonable probability the result of his direct
appeal would have been different had his appellate counsel raised the episode of
criminal conduct issue. Indiana Code section 35-50-1-2(b) (2009) states, an
“‘episode of criminal conduct’ means offenses or a connected series of offenses
that are closely related in time, place, and circumstance.” Subsection (c) states,
the total of the consecutive terms of imprisonment . . . to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the advisory sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted.
Ind. Code § 35-50-1-2(c) (2009). Because the highest felony for which Tipton
was convicted was a Class C felony, he argues his sentence should have been
capped at ten years, the advisory sentence for a Class B felony. See Ind. Code §
35-50-2-5 (2005).
[13] In support of his argument that his convictions were the result of an episode of
criminal conduct, Tipton cites to four cases. In Johnican v. State, 804 N.E.2d
211 (Ind. Ct. App. 2004), the defendant pointed a gun at police officers Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017 Page 7 of 13 attempting to stop him for an outstanding warrant, fled, and was eventually
shot by an officer. Officers found cocaine on the defendant after arresting him.
The defendant was convicted of possession of cocaine, pointing a firearm, and
resisting law enforcement. The court concluded the offenses were part of an
episode of criminal conduct, holding that when “a defendant possesses
contraband on his person as he simultaneously commits other criminal offenses,
the offenses should be deemed part of a single episode of criminal conduct.” Id.
at 218.
[14] In Haggard v. State, 810 N.E.2d 751 (Ind. Ct. App. 2004), the police responded
to a report that the defendant had injected drugs and was threatening to kill
himself. The police entered the house where the defendant was reported to be
and discovered him in the basement. The police noticed that an empty syringe
was on a table next to Haggard and that Haggard had a makeshift tourniquet
tied around his arm. As they approached him, the police noticed that Haggard
had a gun. As Haggard began to raise the gun, he fell backwards, appeared to
have a seizure, and fell asleep. Haggard was arrested. When the police
recovered Haggard’s shirt from the hospital, they discovered that body armor
had been sewn into it. Haggard was ultimately convicted of possession of
cocaine, battery by body waste, resisting law enforcement, battery resulting in
bodily injury, and unlawful use of body armor. The trial court sentenced
Haggard to three years on each of the five convictions, four of which were
ordered to run concurrently, but the sentence for the unlawful use of body
armor conviction was ordered to run consecutively to the other sentences, for
Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017 Page 8 of 13 an aggregate sentence of six years. On direct appeal, Haggard’s convictions and
sentence were affirmed. Haggard v. State, 771 N.E.2d 668, 677 (Ind. Ct. App.
2002), trans. denied.
[15] Haggard then filed a petition for post-conviction relief, arguing that his
appellate counsel was ineffective for failing to argue his actions were an episode
of criminal conduct. On appeal, the State conceded Haggard’s criminal acts
constituted an episode of criminal conduct. Noting that had Haggard not
attempted to commit suicide by the use of cocaine, the police would never have
been called and that Haggard’s drug use precipitated his violent resistance, this
court agreed with Haggard and the State that his acts were an episode of
criminal conduct and his appellate counsel was ineffective for failing to present
that issue. 810 N.E.2d at 756-57. We remanded the cause with instructions to
enter a sentence which conformed with the statute.
[16] In Massey v. State, 816 N.E.2d 979 (Ind. Ct. App. 2004), the police executed a
search warrant and saw the defendant leaving the house. When the defendant
saw the police, he attempted to flee but was captured. When caught, the
defendant was in possession of cocaine and a key to a vending machine which
contained more cocaine and marijuana. In the garage was additional
marijuana in plain view. The police also found hydrocodone, cash, additional
cocaine, and two handguns in the defendant’s bedroom. The defendant was
convicted of dealing in cocaine, possession of cocaine and a firearm, unlawful
possession of a firearm by a serious violent felon, possession of a controlled
substance, and possession of marijuana. The trial court merged the possession
Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017 Page 9 of 13 of cocaine conviction and the dealing in cocaine conviction, sentencing Massey
to fifty years for dealing in cocaine, eight years for possession of cocaine and a
firearm, twenty years for possession of a firearm by a serious violent felon, three
years for possession of a controlled substance, and three years for possession of
marijuana. The trial court ordered the fifty-year sentence to be served
consecutively to the twenty-year sentence and ordered the remaining three
sentences to be concurrent with one another and the other two sentences.
[17] On appeal, the defendant argued his aggregate seventy-year sentence violated
Indiana Code section 35-50-1-2(c) in that his convictions resulted from one
episode of criminal conduct. This court agreed, noting he was a serious violent
felon in possession of a handgun and simultaneously in possession of an
amount of cocaine large enough that his intent to deal could be inferred.
Therefore, the court concluded the defendant’s convictions “arose from a single
episode of criminal conduct.” Id. at 991.
[18] Finally, Tipton cites to Cole v. State, 850 N.E.2d 417, 423 (Ind. Ct. App. 2006).
In that case, police officers spotted the defendant and attempted to conduct a
traffic stop because he had an outstanding warrant for being an habitual traffic
offender. However, the defendant fled in his vehicle and led the police on a
half-hour chase. Once the defendant was apprehended, police discovered a
tank containing anhydrous ammonia in his vehicle which he planned to use in
the manufacture of methamphetamine. The defendant pleaded guilty to
resisting law enforcement, possession of chemical reagents or precursors with
intent to manufacture methamphetamine, and being an habitual offender. This
Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017 Page 10 of 13 court concluded the defendant’s convictions arose from an episode of criminal
conduct, and, therefore, his consecutive sentence required reduction because it
exceeded the maximum consecutive sentence permitted by Indiana Code
section 35-50-1-2. Id. at 423.
[19] Notwithstanding these cases, Tipton has failed to demonstrate a reasonable
probability the result of his direct appeal would have been different if the issue
had been raised. In our most recent case that would have been available to
Tipton on direct appeal, Deshazier v. State, 877 N.E.2d 200, 204 (Ind. Ct. App.
2007), trans. denied, the defendant was convicted of carrying a handgun with a
prior felony, two counts of resisting law enforcement, and possession of
marijuana. During a traffic stop, police officers discovered the defendant had a
firearm. The defendant then fled from the police and the police found
marijuana in the defendant’s jacket he left at the scene. After noting this court’s
split of authority and our supreme court’s emphasis on the “simultaneous” and
“contemporaneous” timing of the offenses, we stated that “no evidence exists as
to when [the defendant] came into possession of the handgun or marijuana.
Possession is inherently a ‘continuing offense,’ which occurs from the time the
defendant comes into possession of the contraband until the time he
relinquishes control.” Id. at 212. Therefore, we held the possession offenses
were not part of an episode of criminal conduct with the defendant’s offenses of
resisting law enforcement. Id.
[20] Here, law enforcement arrived at Tipton’s house in response to a call
concerning domestic violence and Tipton began firing gunshots, giving rise to
Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017 Page 11 of 13 his criminal recklessness conviction. Following his arrest, the police then
executed a search warrant and discovered a marijuana growing operation.
There is no nexus, other than the fact police discovered the marijuana operation
as a result of his arrest, connecting Tipton’s act of criminal recklessness and his
subsequent conviction of dealing marijuana. See Akers v. State, 963 N.E.2d 615,
619-20 (Ind. Ct. App. 2012) (noting, unlike Johnican and Cole, the defendant’s
possession of paraphernalia was related neither chronologically nor in
circumstance to his convictions for battery and resisting arrest), trans. denied.
Finally, we note the State presented evidence at sentencing of marijuana plants
in various stages of growth, a clear indication Tipton had been growing
marijuana for some time—a crime which was occurring prior to and distinct
from his crime of criminal recklessness. Under these circumstances and like in
Deshazier, Tipton’s convictions were not part of an episode of criminal conduct.
[21] Because Tipton has failed to demonstrate a reasonable probability the result of
his direct appeal would have been different, we cannot say he received
ineffective assistance of appellate counsel.
Conclusion [22] Tipton has failed to demonstrate a reasonable probability the result of his direct
appeal would have been different had appellate counsel raised the issue of his
convictions being an episode of criminal conduct. Accordingly, we affirm the
denial of his petition for post-conviction relief.
Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017 Page 12 of 13 [23] Affirmed.
Riley, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017 Page 13 of 13