MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 22 2017, 6:19 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 Jay M. Lee Larry D. Allen Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indian
IN THE COURT OF APPEALS OF INDIANA
Thomas Yoder, February 22, 2017 Appellant-Defendant, Court of Appeals Case No. 20A04-1607-PC-1674 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Stephen Bowers, Appellee-Plaintiff. Judge Trial Court Cause No. 20D02-1411-PC-42
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017 Page 1 of 15 Case Summary [1] Thomas Yoder (“Yoder”) appeals the denial of his petition for post-conviction
relief, following his convictions of Battery by Means of a Deadly Weapon, as a
Class C felony,1 and Intimidation, as a Class C felony.2 We affirm in part,
reverse in part, and remand with instructions.
Issues [2] Yoder presents the following consolidated and restated issues:
I. Whether he was denied the effective assistance of trial counsel because trial counsel failed to play Yoder the recording of the victim’s 9-1-1 call; and
II. Whether he was denied the effective assistance of trial counsel and appellate counsel because neither trial counsel nor appellate counsel raised the issue of double jeopardy.
1 Ind. Code § 35-42-2-1(a)(3). Throughout our decision, we refer to the substantive provisions of the Indiana Code in effect at the time of and applicable to the charged offenses. 2 I.C. § 35-45-2-1(a)(2), (b)(2).
Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017 Page 2 of 15 Facts and Procedural History [3] In March of 2013, Yoder was in a romantic relationship with Lisa Wessler
(“Wessler”).3 In the past, Wessler and David Puro (“Puro”) had an intimate
relationship, and the two remained friends.
[4] On March 9, 2013, Wessler, Puro, and friends met for afternoon drinks in
downtown Goshen. Afterward, a friend gave Puro a ride home, and Puro fell
asleep in his living room. He woke up around 10:30 p.m. to knocking on his
door. When he opened the door, he saw Wessler crying. Wessler told Puro
that she and Yoder had an argument, and asked if she could stay with Puro for
a few days. The two stayed up for a while, and then each went to sleep.
[5] Around 1:30 a.m., Puro awoke to pounding at the front door. Puro went to the
door, looked out the window, and saw Yoder outside. Yoder demanded entry,
but Puro would not let him in. At some point, Yoder began kicking the door,
and Puro said that he was going to call 9-1-1. Puro pressed his shoulder against
the door, and placed the call. Yoder threatened to kill Puro, and kept trying to
force his way inside. Puro told the dispatcher that Yoder was the intruder.
[6] While Puro was on the phone, Yoder stopped trying to force the door open.
Yoder then threw a hammer through the door window, reached inside, and
3 Although there was a prior appeal, the appellate opinion focused on restitution and did not recite all of the facts relevant to Yoder’s petition. See Yoder v. State, 19 N.E.3d 417 (Ind. Ct. App. 2014). We therefore recite them here.
Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017 Page 3 of 15 grabbed Puro by the sweater. Yoder pulled Puro toward the door and began
beating Puro in the head with a metal chisel. Eventually, Yoder left.
[7] Goshen Police Officer Lloyd Waddell (“Officer Waddell”) was one of the
responding officers. He followed fresh footprints in the snow, and saw a man
walking in the distance. Officer Waddell yelled, and the man began running in
the general direction of Yoder’s home. Officer Waddell pursued the man, but
lost sight of him. Shortly after the pursuit, Officer Waddell knocked on Yoder’s
door. When Yoder answered, he was sweating and out of breath.
[8] Yoder was arrested, and the State charged him with one count of Battery by
Means of a Deadly Weapon, as a Class C felony, and Intimidation, as a Class C
felony. Prior to trial, the State made a plea offer whereby Yoder could plead
guilty to Intimidation as a Class D felony.4 The State also gave Yoder’s
attorney, Gary Griner, a recording of the 9-1-1 call, in which Puro identifies
Yoder and the assailant threatens to kill Puro. Griner told Yoder that he had
the 9-1-1 recording but Griner did not play the call for Yoder.
[9] Yoder rejected the plea offer and a jury trial commenced, during which the
State introduced the 9-1-1 recording. Yoder was found guilty as charged.
Shortly after the trial, Yoder told Griner that if Yoder had heard the 9-1-1 call,
he would have accepted the plea offer. Griner then wrote Yoder a letter,
memorializing their conversation. In the letter, Griner explained that he did
4 The full terms of the offer are unclear from the appellate record.
Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017 Page 4 of 15 not play the call for Yoder because he did not think the call was significantly
damaging to the case or that it would affect Yoder’s decision to go to trial.
[10] Yoder received consecutive four-year sentences, for an aggregate sentence
length of eight years, and he was also ordered to pay restitution. On direct
appeal, Yoder’s appellate counsel challenged only the restitution order.
Subsequently, Yoder filed a petition for post-conviction relief on November 10,
2014. Following a hearing, the petition was denied. This appeal ensued.
Discussion and Decision Standard of Review [11] The petitioner in a post-conviction proceeding bears the burden of establishing
grounds for relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5). “When appealing the denial of post-conviction relief, the petitioner
stands in the position of one appealing from a negative judgment.” Ellis v. State,
No. 71S05-1606-PC-360, slip op. at 4 (Ind. Jan. 26, 2017). 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. Hollowell v. State, 19 N.E.3d 263,
268-69 (Ind. 2014). Here, the post-conviction court 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 Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017 Page 5 of 15 conviction that a mistake has been made.’” Ben-Yisrayl v. State, 729 N.E.2d 102,
106 (Ind. 2000) (quoting State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997), cert.
denied).
Failure to Play the 9-1-1 Recording [12] Yoder argues that he was denied the effective assistance of counsel because trial
counsel did not play him the 9-1-1 recording. Yoder contends that had he
known the contents of the call, he would have accepted the State’s plea offer.
[13] The Sixth Amendment to the United States Constitution provides the right to
effective assistance of counsel, Strickland v. Washington, 466 U.S. 668, 687
(1984), and this right “extends to the plea-bargaining process.” Lafler v. Cooper,
566 U.S. 156, 163 (2012). We analyze ineffective assistance of counsel claims
under the two-part test announced in Strickland. That is, to prevail on an
ineffective assistance of counsel claim, the claimant must show (1) that
counsel’s performance was deficient, and (2) that the deficient performance
prejudiced the defense. Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010)
(citing Strickland, 466 U.S. at 687). Deficient performance is that which falls
below an objective standard of reasonableness. Strickland, 466 U.S. at 688.
Prejudice exists when a claimant demonstrates 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 694. The two
prongs of the Strickland test—deficient performance and resulting prejudice—
Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017 Page 6 of 15 are separate and independent inquiries, and the failure to establish either prong
will cause the claim to fail. State v. Greene, 16 N.E.3d 416, 419 (Ind. 2014).
[14] We “strongly presume” that counsel provided adequate assistance and
exercised reasonable professional judgment in all significant decisions. McCary
v. State, 761 N.E.2d 389, 392 (Ind. 2002). Moreover, in assessing counsel’s
conduct, we look at the facts known at the time and not through hindsight.
Moore, 678 N.E.2d at 1261. Trial strategy is not subject to attack through an
ineffective assistance of counsel claim, unless the strategy is so deficient or
unreasonable as to fall outside the objective standard of reasonableness. Autrey
v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).
[15] Here, the post-conviction court concluded that Griner’s performance was not
deficient, noting that “[h]ad the 9-1-1 recording been the only evidence against
Yoder, the Court would agree that [trial counsel] performed deficiently when he
failed to play the recording for Yoder while the class D felony offer was on the
table.” (PCR App. Vol. II at 93-94.) However, at the post-conviction hearing,
Griner testified that he went through the police reports with Yoder, and also
showed Yoder the victim statement Puro had written. These documents
contain Puro’s identification of Yoder as the assailant.
[16] The defense theory was wrongful identification because there were others in the
home where Yoder was located, there was a delay before Yoder was located,
and evidence of alcohol consumption raised questions about the reliability of
the State’s witnesses. In other words, the defense did not dispute that Puro was
Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017 Page 7 of 15 attacked, rather, the defense challenged Puro’s identification of Yoder. Thus,
when viewing the 9-1-1 recording in relation to the intended defense, the call
covered essentially the same ground as other evidence disclosed to Yoder—that
Puro was attacked and that Puro identified Yoder. Although the 9-1-1
recording did include the assailant’s voice, Griner explained in his letter to
Yoder that the attacker did not identify himself on the recording and that “the
sound quality is poor and I cannot imagine anyone determining it was your
voice.” (PCR App. Vol. II at 55.) We cannot reweigh the evidence. Greene, 16
N.E.3d at 418.
[17] Ultimately, in light of the planned defense, we are not left with a definite and
firm conviction that the post-conviction court erred in determining that Griner’s
performance was not deficient because he failed to play Yoder the call. Yoder,
therefore, did not meet his burden under the first prong of the Strickland test,
and we accordingly do not reach the issue of resulting prejudice.
Double Jeopardy [18] Yoder next asserts that he was deprived of the effective assistance of both trial
counsel and appellate counsel because neither trial counsel nor appellate
counsel raised the issue of double jeopardy.
[19] “The standard of review for a claim of ineffective assistance of appellate counsel
is the same as for trial counsel in that the [claimant] must show appellate
counsel was deficient in her performance and that the deficiency resulted in
prejudice.” Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). To evaluate the
Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017 Page 8 of 15 performance prong when the claim is that appellate counsel failed to raise an
issue, a reviewing court considers “(1) whether the unraised issues are
significant and obvious from the face of the record and (2) whether the unraised
issues are ‘clearly stronger’ than the raised issues.” Henley v. State, 881 N.E.2d
639, 645 (Ind. 2008). If the analysis under this test demonstrates deficient
performance, then we evaluate the prejudice prong which requires an
examination of whether, but for appellate counsel’s errors, the outcome of the
direct appeal would have been different. Bieghler v. State, 690 N.E.2d 188, 194
(Ind. 1997)
[20] Yoder argues that evidence of the battery was used to elevate his intimidation
charge, contrary to double jeopardy principles. Yoder’s argument focuses on
the Indiana Constitution, which provides that “[n]o person shall be put in
jeopardy twice for the same offense.” Ind. Const. art. I, § 14. Two convictions
may be the “same offense” 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.” McIntire v. State, 717 N.E.2d 96, 99 (Ind. 1999).
[21] Yoder contends that the Double Jeopardy Clause was violated under the actual
evidence test. When reviewing an actual evidence challenge, we examine the
evidence presented at trial to determine whether “each challenged offense was
established by separate and distinct facts.” Richardson v. State, 717 N.E.2d 32,
53 (Ind. 1999). To show that two offenses constitute the “same offense,” the
claimant “must demonstrate a reasonable possibility that the evidentiary facts
Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017 Page 9 of 15 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. at 53.
[22] In his Richardson concurrence, Justice Sullivan articulated five categories of
double jeopardy violations, among them, “[c]onviction and punishment for an
enhancement of a crime where the enhancement is imposed for the very same
behavior or harm as another crime for which the defendant has been convicted
and punished.” Id. at 56 (Sullivan, J., concurring). Justice Sullivan noted that
McIntire—decided the same day as Richardson—fell within that category. Id.
(citing McIntire, 17 N.E.2d 96).
[23] In McIntire, the defendant struck the victim’s head with a baseball bat after
entering the victim’s home. The defendant was convicted of multiple charges,
including criminal recklessness, as a Class D felony, and burglary, as a Class A
felony. In challenging these convictions on double jeopardy grounds, the
defendant pointed out that a jury instruction defined criminal recklessness as a
Class D felony if the defendant “recklessly, knowingly, or intentionally inflicts
serious bodily injury on another person.” McIntire, 717 N.E.2d at 101. Yet, the
burglary conviction was elevated to a Class A felony because the defendant’s
behavior “result[ed] in either bodily injury or serious bodily injury to any
person other than a defendant.” Id. at 99 (quoting I.C. § 35-43-2-1 (1993)). In
resolving McIntire, our supreme determined that there was a double jeopardy
violation because “the defendant ha[d] demonstrated a reasonable possibility
that the jury used the same evidentiary facts ([the victim’s] head injury caused
Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017 Page 10 of 15 by the baseball bat) to establish the essential elements of both” charges. Id. at
101. Put another way, the very same behavior that supported the criminal
recklessness conviction—inflicting serious bodily injury on the victim with a
baseball bat—could have elevated the crime of battery. Thus, there was a
reasonable possibility that the defendant was twice punished for the same act.
[24] McIntire is instructive. Here, Yoder was charged with Battery by Means of a
Deadly Weapon as a Class C felony and Intimidation as a Class C felony. As
charged, the relevant statutory definition of battery provides:
A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is . . . a Class C felony if it . . . is committed by means of a deadly weapon.
I.C. § 35-42-2-1.
[25] The relevant statutory definition of intimidation provides:
A person who communicates a threat to another person, with the intent . . . that the other person be placed in fear of retaliation for a prior lawful act . . . commits intimidation, a Class A misdemeanor. . . . However, the offense is a . . . Class C felony if, while committing it, the person draws or uses a deadly weapon.
I.C. § 35-45-2-1(a), (b)(2) (emphasis added).5
5 In the charging information for intimidation, the State alleged only that Yoder drew the metal chisel. However, “our identification of the evidentiary facts used by the jury in reaching its decisions may be informed by consideration of the final jury instructions and argument of counsel.” McIntire, 717 N.E.2d at
Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017 Page 11 of 15 [26] Applying McIntire, Yoder argues that there was a reasonable possibility that his
intimidation charge was elevated for the very same conduct supporting his
battery conviction—use of the chisel. The only “use” of the chisel supported by
the evidence is that Yoder beat Puro with it, that is, that Yoder committed the
battery for which he was convicted and punished.
[27] In addressing McIntire, both the State and post-conviction court focus on a
different double jeopardy violation presented in that case, which is inapposite.
The State also directs us to language from a case the post-conviction court
relied on in denying Yoder relief:
[O]ur recognition in Richardson of the common law rule establishing that enhancements cannot be imposed for the very same behavior could not have included use of a single deadly weapon during the commission of separate offenses . . . because no such common law rule existed.
Sistrunk v. State, 36 N.E.3d 1051, 1054 (Ind. 2015).
[28] The reliance on Sistrunk is misplaced. In Sistrunk, multiple offenses were
elevated because the defendant committed each offense while armed with a
gun. Our supreme court determined that there was no double jeopardy
violation, concluding that possession of the same weapon could elevate separate
offenses. Id. (“[O]ur jurisprudence teaches that committing two or more
101. Here, the State argued, and a jury instruction stated, that the jury could convict Yoder of Class C felony intimidation if Yoder “drew or used a deadly weapon” while committing the offense. (Trial Tr. Vol. I at 192; Direct Appeal App. Vol. I at 61.)
Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017 Page 12 of 15 separate offenses each while armed with a deadly weapon—even the same
weapon—is not within the category of rules precluding the enhancement of
each offense based on ‘the very same behavior.’”) Here, however, Yoder
alleges a different sort of double jeopardy violation. It is not that both of
Yoder’s offenses were elevated because they involved the same weapon. 6
Rather, here, like in McIntire, the entire other crime—Yoder’s battery—was
potentially used to elevate Yoder’s intimidation charge to a Class C felony.
This presents the very risk contemplated by the principles of double jeopardy,
namely, that Yoder could have been twice punished for beating Puro—once
through the battery conviction and again through elevating the intimidation
offense. See Richardson, 717 N.E.2d at 49 (“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.”)
[29] Yoder demonstrated, by a preponderance of the evidence, a reasonable
possibility that the very conduct giving rise to his battery conviction was used to
elevate his intimidation conviction to a Class C felony, contrary to principles of
double jeopardy. Trial counsel’s and appellate counsel’s failure to raise this
issue was objectively unreasonable, as the issue was significant and obvious
from the face of the record. Moreover, Yoder was prejudiced; had the issue
been raised, Yoder’s intimidation conviction would have been reduced from a
6 This is one argument Yoder presented to the post-conviction court, but Yoder also argued that “the jury relied on the use of the chisel for both counts, as well.” (PCR App. Vol. II at 78-79.)
Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017 Page 13 of 15 Class C felony to a Class A misdemeanor, which carries significantly less penal
exposure.7 Although appellate counsel successfully raised a restitution issue,
the double jeopardy violation—a constitutional defect—was the stronger issue.
[30] Because Yoder was convicted of an elevated charge of intimidation that would
have been prohibited by double jeopardy principles, we conclude that the post-
conviction court erred by denying Yoder post-conviction relief due to the failure
of counsel to raise a double jeopardy issue. Accordingly, we reverse this aspect
of the post-conviction court’s judgment, and remand with instructions to reduce
Yoder’s intimidation conviction to a Class A misdemeanor and to impose a
sentence of one year, with the sentence to run consecutive to Yoder’s existing
four-year sentence.8
Conclusion [31] The post-conviction court did not clearly err in concluding that Yoder did not
receive ineffective assistance of trial counsel due to counsel’s failure to play
Yoder a 9-1-1 recording, but the post-conviction court clearly erred by denying
7 The State did not charge Yoder with Intimidation, as a Class D felony, therefore the jury verdict could rest only on the Class A misdemeanor. The maximum sentence for a Class A misdemeanor is one year whereas Yoder faced a maximum sentence of eight years on his Class C felony. See I.C. §§ 35-50-3-2, -6. 8 Indiana Appellate Rule 66(C) authorizes us to “grant any other appropriate relief” in deciding a case. In the interest of judicial economy, we elect to direct the trial court to impose a specific sentence rather than to remand for a resentencing hearing. See Spurlock v. State, 675 N.E.2d 312, 317 (Ind. 1996) (ordering the trial court to reduce two counts and to impose a specific sentence). Here, we note that the trial court, at sentencing, stated that it “ha[d] not found any substantial grounds that tend to excuse or justify Mr. Yoder’s conduct” (Trial Tr. Vol. II at 271) and that it could not “find a way to give [him] a break . . . . It’s just not here.” (Trial Tr. Vol. II at 272.)
Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017 Page 14 of 15 Yoder post-conviction relief due to trial counsel’s and appellate counsel’s failure
to raise the issue of double jeopardy.
[32] Affirmed in part, reversed in part, and remanded with instructions.
Najam, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017 Page 15 of 15