Lawrence T. Davis v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 22, 2015
• Docket: 45A04-1503-PC-119
• Status: Published

Opinion

MEMORANDUM DECISION Dec 22 2015, 8:39 am Pursuant to Ind. Appellate Rule 65(D), 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 Stephen T. Owens Gregory F. Zoeller Public Defender of Indiana Attorney General of Indiana Indianapolis, Indiana Indianapolis, Indiana

Cassandra J. Wright Justin F. Roebel Assistant Chief Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Lawrence T. Davis, December 22, 2015 Appellant-Defendant, Court of Appeals Case No. 45A04-1503-PC-119 v. Appeal from the Lake Superior Court 1 State of Indiana, The Honorable Kathleen A. Appellee-Plaintiff Sullivan, Magistrate; and The Honorable Salvador Vasquez, Judge. Trial Court Cause No. 45G01-1304-PC-4

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-119 | December 22, 2015 Page 1 of 9 [1] Lawrence T. Davis appeals from the denial of his petition for post-conviction

relief (PCR). On appeal, he asserts that the post-conviction court erred in

rejecting his claim that he was subjected to an improper double enhancement

because the prior conviction used to enhance his auto theft conviction from a

class D to a class C felony and one of the convictions used to support his

habitual offender adjudication were part of the same res gestae. Davis also

argues that the post-conviction court erred in rejecting his claim that his

appellate counsel was ineffective for failing to adequately present the double

enhancement issue on direct appeal.

[2] We affirm.

Facts & Procedural History

[3] In 2009, Davis was convicted of auto theft as a class C felony and two counts of

resisting law enforcement, one as a class D felony and one as a class A

misdemeanor. The auto theft charge was elevated from a class D to a class C

felony based on a 2004 auto theft conviction under cause number 45G01-0312-

FC-165 (FC-165). Davis was also adjudicated a habitual offender based on a

2004 resisting law enforcement conviction also filed under FC-165 and a

separate 2001 auto theft conviction. Davis received an aggregate sentence of

nineteen years.

[4] On direct appeal, appellate counsel raised three issues: (1) whether the trial

court erred in not advising Davis of his right to a jury trial on the habitual

offender and auto theft enhancement phases of his trial; (2) whether the trial

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-119 | December 22, 2015 Page 2 of 9 court erred in allowing the State to use the auto theft conviction from FC-165

both to enhance the conviction for auto theft and to support the habitual

offender adjudication, and (3) whether the trial court erred in imposing the

habitual offender enhancement as a separate sentence. This court affirmed as to

the first and second issues, noting with respect to the latter that the State did not

rely on the same conviction to support the enhancement and the habitual

offender adjudication. Rather, the enhancement was supported by the auto

theft conviction under FC-165, while the habitual offender adjudication was

supported by the resisting law enforcement conviction under FC-165 and the

2001 auto theft conviction. This court held that “[t]he trial court did not violate

the prohibition of Beldon[v. State, 926 N.E.2d 480 (Ind. 2010),] as it did not use

the same conviction to enhance under both the progressive enhancement and

habitual offender statutes.” Davis v. State, 935 N.E.2d 1215, 1218 (Ind. Ct. App.

2010). As to Davis’s third issue on direct appeal, this court remanded with

instructions to the trial court to correct its error in imposing the habitual

offender enhancement as a separate sentence. Davis filed a petition to transfer,

which our Supreme Court denied on February 17, 2011.

[5] Davis filed a pro se PCR petition on April 29, 2013. The petition was amended

by counsel on November 22, 2013. Following an evidentiary hearing, the post-

conviction court issued an order denying Davis’s petition on February 25, 2015.

Davis now appeals.

Discussion & Decision

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-119 | December 22, 2015 Page 3 of 9 [6] In a post-conviction proceeding, the petitioner bears the burden of establishing

grounds for relief by a preponderance of the evidence. Bethea v. State, 983

N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction

relief, the petitioner stands in the position of one appealing from a negative

judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In

order to prevail, the petitioner must demonstrate that the evidence as a whole

leads unerringly and unmistakably to a conclusion opposite the post-conviction

court’s conclusion. Id. Although we do not defer to a post-conviction court’s

legal conclusions, we will reverse its findings and judgment only upon a

showing of clear error, i.e., “that which leaves us with a definite and firm

conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729

N.E.2d 102, 106 (Ind. 2000)).

1. Free-standing Double Enhancement Claim

[7] On appeal, Davis raises a free-standing claim of trial error based on the use of

the convictions under FC-165 to elevate his auto theft conviction to a class C

felony and to support the habitual offender allegation, which he claims

constituted an impermissible double enhancement. “[M]ost free-standing

claims of error are not available in a postconviction proceeding because of the

doctrines of waiver and res judicata.” Timberlake v. State, 753 N.E.2d 591, 597-

98 (Ind. 2001). “The doctrine of res judicata prevents the repetitious litigation

of that which is essentially the same dispute.” Ben-Yisrayl v. State, 738 N.E.2d

253, 258 (Ind. 2000). “Res judicata mandates that when an appellate court

decides a legal issue, both the trial court and the court on appeal are bound by

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-119 | December 22, 2015 Page 4 of 9 that determination in any subsequent appeal involving the same case and

relatively similar facts.” Saunders v. State, 794 N.E.2d 523, 527 (Ind. Ct. App.

2003). A post-conviction petitioner cannot escape the effect of claim preclusion

merely by using different language to phrase an issue and define an alleged

error. Ben-Yisrayl, 738 N.E.2d at 258.

[8] The post-conviction court in this case concluded that Davis’s free-standing

double enhancement claim is res judicata because it was raised on direct appeal

and decided adversely to Davis. Davis argues that his double enhancement

claim is not res judicata because his appellate counsel incorrectly argued that

the same conviction was used both to enhance the auto theft conviction to a

class C felony and to support the habitual offender allegation when, in fact, two

different convictions, both charged under FC-165, were used. We note,

however, that this court acknowledged appellate counsel’s factual error, and

concluded that there was no double enhancement under then-prevailing law.

Thus, counsel’s error did not prevent the court from considering and deciding

the double enhancement issue.

[9] Davis also argues that the double enhancement issue he now presents was not

decided on direct appeal because the case on which his argument is based, Dye

v. State, 972 N.E.2d 853 (Ind. 2012), clarified on reh’g, 984 N.E.2d 625 (Ind.

2013), was not decided until after his direct appeal was final. Davis makes no

argument, however, that Dye applies retroactively to this case, nor has he cited

any authority for the proposition that subsequent developments in the law

undercut the preclusive effect of our prior decisions.

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-119 | December 22, 2015 Page 5 of 9 [10] In any event, even assuming that the double enhancement issue is not barred,

Davis is not entitled to relief. The post-conviction court concluded that Davis’s

argument failed on its merits, and we agree. Our Supreme Court has held that

a defendant convicted under a progressive penalty statute may not have his

sentence further enhanced under the general habitual offender statute by proof

of the same felony used to elevate the underlying charge. See Beldon, 926

N.E.2d at 483 (citing Mills v. State, 868 N.E.2d 446, 452 (Ind. 2007)). More

recently, in Dye, the court announced that an improper double enhancement

also occurs where a defendant is convicted of an elevated charge under a

progressive penalty statute and adjudicated a habitual offender by proof of

different felonies that are part of the same res gestae. 984 N.E.2d at 629-30

(opinion on reh’g). As the court explained, “[a]lthough res gestae is a term

regularly used in Indiana’s common law of evidence to denote facts that are

part of the story of a particular crime, it also includes acts that are part of an

‘uninterrupted transaction.’” Id. at 629 (quoting Swanson v. State, 666 N.E.2d

397, 398 (Ind. 1996)). Crimes that are continuous in their purpose and

objective are deemed a single uninterrupted transaction. Id. The court went on

to conclude that the convictions at issue in Dye, attempted battery with a deadly

weapon and possession of a handgun within 1,000 feet of a school, were part of

the same res gestae where the offenses both arose out of a single confrontation

with a police officer. Id. at 629-30.

[11] Relying on Dye, Davis argues that he was subjected to an impermissible double

enhancement because the auto theft and resisting law enforcement convictions

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-119 | December 22, 2015 Page 6 of 9 under FC-165 were part of the same res gestae. Davis, however, has failed to

carry his burden on this issue. The only evidence presented at the PCR hearing

concerning the facts of the offenses charged under FC-165 was the probable

cause affidavit, which indicates that on the morning of December 1, 2003, a

police officer attempted to make a traffic stop after observing a vehicle disregard

a stop sign. The driver, who was later determined to be Davis, drove away at a

high rate of speed. After turning into an alley, Davis leapt from the car and fled

on foot. The officer gave chase, and subsequently apprehended Davis. An

examination of the vehicle Davis had been driving revealed that the steering

column had been “peeled.” PCR Exhibit 1. It was later determined that the

vehicle belonged to Chester J. Podkul. On November 30, 2003, Podkul had

loaned the vehicle to his son, Donald. When Donald left his home the next

morning, he discovered that the vehicle had been stolen. As a result of these

events, Davis was charged with, and eventually convicted of, auto theft and two

counts of resisting law enforcement.

[12] The fact that the auto theft and resisting law enforcement were charged under

the same cause number, standing alone, does not establish that they were part

of the same res gestae. Nor do we find the fact that Davis used the stolen vehicle

to commit resisting law enforcement by fleeing from the police controlling. On

the record before us, it is unclear how much time elapsed between the theft of

the vehicle and Davis’s flight from police, but it could have been several hours.

What is clear is that the theft of the vehicle was already complete when the

officer attempted to stop Davis for a traffic infraction, and Davis fled. We

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-119 | December 22, 2015 Page 7 of 9 reiterate that a post-conviction petitioner bears the burden of establishing his

claims for relief by a preponderance of the evidence. Under the facts and

circumstances presented here, we cannot conclude that the post-conviction

court’s finding that Davis failed to do so was clearly erroneous.

2. Ineffective Assistance of Appellate Counsel

[13] Davis also argues that his appellate counsel was ineffective for failing to

adequately present the double enhancement issue on direct appeal. We review

claims of ineffective assistance of appellate counsel using the same standard

applicable to claims of ineffective assistance of trial counsel. Henley v. State, 881

N.E.2d 639, 644 (Ind. 2008). Accordingly, to prevail on his claim, Davis was

required to show both that counsel’s performance was deficient and that the

deficiency resulted in prejudice. Id. Deficient performance is “‘representation

that fell below an objective standard of reasonableness, committing errors so

serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth

Amendment.’” State v. McManus, 868 N.E.2d 778, 790 (Ind. 2007) (quoting

McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). Counsel’s performance is

presumed effective, and a post-conviction petitioner must offer strong and

convincing evidence to overcome this presumption. Ben-Yisrayl, 729 N.E.2d at

106. “Isolated mistakes, poor strategy, inexperience, and instances of bad

judgment do not necessarily render representation ineffective.” Timberlake, 753

N.E.2d at 603.

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-119 | December 22, 2015 Page 8 of 9 [14] Because Dye was not decided until well after Davis’s direct appeal was final,

appellate counsel cannot be deemed ineffective for failing to advance the

reasoning set forth in that case. See Bieghler v. State, 690 N.E.2d 188, 195 (Ind.

1997) (explaining that a court should not find deficient performance for failing

to adequately present issues “when the advancement of those issues would have

required advocacy of a new adjudicatory standard or reasoning that would have

been novel at the time of appellant’s appeal”). Additionally, appellate counsel

cannot be said to have been ineffective for failing to advance an issue on appeal

that would ultimately have been unsuccessful. See Bieghler v. State, 690 N.E.2d

188, 194 (Ind. 1997) (explaining that a post-conviction petitioner arguing

ineffective assistance of appellate counsel must establish a reasonable

probability that, but for counsel’s unprofessional errors, the outcome of the

appeal would have been different). Because Davis has not established that he

was subject to an improper double enhancement, he has likewise failed to

establish that his appellate counsel was ineffective for failing to adequately

present the double enhancement issue on direct appeal. For all of these

reasons, Davis has not established that the post-conviction court erred in

denying his PCR petition.

[15] Judgment affirmed.

[16] Riley, J. and Brown, J., concur.

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