MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                              Oct 02 2017, 5:39 am

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.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Brian E. Graves                                          Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian E. Graves,                                         October 2, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         16A01-1703-PC-600
        v.                                               Appeal from the Decatur Circuit
                                                         Court
State of Indiana,                                        The Honorable Timothy B. Day,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         16C01-1303-PC-182



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 16A01-1703-PC-600 | October 2, 2017          Page 1 of 14
                                              Case Summary
[1]   Brian E. Graves (“Graves”) appeals the partial denial of his petition for post-

      conviction relief, challenging his conviction for Escape, as a Class B felony.1

      We affirm.



                                                         Issue
[2]   Graves articulates issues concerning joinder of offenses, due process, speedy

      trial rights, and assistance of counsel. We address the issue that is not waived,

      res judicata, or procedurally defaulted,2 that is: whether Graves was denied the

      effective assistance of trial and appellate counsel due to failure to challenge his

      prosecution in Decatur County pursuant to Indiana’s successive prosecution

      statute.3



                              Facts and Procedural History




      1
       Ind. Code § 35-44-3-5(a), recodified at Ind. Code § 35-44.1-3-4. Graves’s adjudication as a habitual offender
      was vacated by the post-conviction court.
      2
        Post-conviction proceedings do not afford the petitioner a “super appeal”; rather, subsequent collateral
      challenges must be based on grounds enumerated in Post-Conviction Rule 1. Williams v. State, 808 N.E.2d
      652, 659 (Ind. 2004). If an issue was known and available but not raised on direct appeal, it is procedurally
      defaulted as a basis for relief in subsequent proceedings. Id. If an issue was raised and decided adversely, it is
      res judicata. Id. If not raised on direct appeal, the issue of ineffectiveness of counsel is properly presented in
      a post-conviction proceeding but, as a general rule, most free-standing claims of error are not available in a
      post-conviction proceeding because of the doctrines of waiver and res judicata. Id.
      3
          I.C. § 35-34-1-4.


      Court of Appeals of Indiana | Memorandum Decision 16A01-1703-PC-600 | October 2, 2017                Page 2 of 14
[3]   Events occurring on February 7, 2010 gave rise to Graves’s convictions of

      crimes in two Indiana counties. Graves was brought to trial in Decatur County

      after he was convicted in Shelby County of Resisting Law Enforcement and

      had served, or substantially served, the related sentence. The facts underlying

      Graves’s convictions were recited by a panel of this Court on direct appeal as

      follows:


              [O]n the cold and snowy evening of February 7, 2010 Indiana
              State Police Trooper Christopher Howell began to patrol
              Interstate 74 looking for drivers who might be stranded due to the
              inclement weather. The trooper observed Graves’s truck parked
              in the emergency pull-off lane on the interstate. Graves was
              standing at the front of the vehicle. When Trooper Howell
              stopped to investigate, he asked Graves what he was doing.
              Graves replied that he was scraping ice from his windshield.
              Trooper Howell, who observed that there was nothing in
              Graves’s hands, noted that Graves’s words were slurred and he
              was unsteady on his feet. At this point, Howell was standing in
              front of his police cruiser, which in turn was stopped behind
              Graves’s truck. He asked Graves to come to him. Graves
              initially refused and told the trooper he was going to “take off.”
              Transcript at 34. In response, Trooper Howell issued a “loud
              command” to Graves to walk to the trooper. Id. This time,
              Graves complied. The trooper patted down Graves and asked
              where he had been and where he was going. When Graves
              responded, Trooper Howell detected the odor of alcohol on his
              breath. He asked if Graves had been drinking and Graves said he
              had not. Trooper Howell asked for Graves’s identification and
              registration and was informed that they were in the truck. He
              escorted Graves to the vehicle and watched as Graves retrieved
              his wallet and began looking through its contents. He noted that
              Graves had an Indiana identification card, which signified to the
              trooper either that Graves did not have a driver’s license, or that
              his license was suspended. He asked Graves about the status of
      Court of Appeals of Indiana | Memorandum Decision 16A01-1703-PC-600 | October 2, 2017   Page 3 of 14
        his license and Graves responded that it had been suspended for
        nonpayment of parking tickets. Graves was not able to produce
        any of the other requested documentation. At that point, because
        of the weather and conditions, Trooper Howell asked Graves to
        sit in the front passenger seat of his police cruiser while he
        verified Graves’s information.


        After the two were seated inside the cruiser, Trooper Howell
        began running Graves’s information on a laptop computer
        located between the two of them such that both Howell and
        Graves could see the information displayed on the screen. When
        the laptop began to emit audible alert tones and display Graves’s
        information, Graves was looking at the screen and reading the
        information along with Trooper Howell. Among the information
        on the screen was an indication that Graves was wanted on four
        open warrants. After a few seconds, Graves “turned his head
        and said sorry, I gotta go.” Id. at 39. He then opened the door
        and, according to Howell, “out he went.” Id. Trooper Howell at
        first just sat there, “dumbfounded.” Id. at 40. He saw Graves
        start toward his truck, and then the trooper exited his car and ran
        to intercept Graves. During the ensuing scuffle, the trooper
        repeatedly commanded Graves to “stop resisting” and told him,
        “You need to stop.” Id. at 74. He grabbed Graves while they
        were between the vehicles, but Graves slipped from his grasp and
        continued to the front passenger side of his truck. Trooper
        Howell decided to run around the driver’s side of the truck and
        intercept Graves from that direction. He caught Graves near the
        front of the vehicle. Graves pushed Howell, who fell backward
        and hit his head and was stunned for a moment. By the time
        Howell recovered, Graves had climbed into the driver’s seat of
        the truck, but the door was still open when Howell got to him
        and began pulling on Graves, attempting to extricate him from
        the truck. He continued pulling Graves by the coat and ordering
        him to get out of the truck and to quit resisting. At some point,
        Graves managed to get his truck into gear, stepped on the gas,
        and began driving away. When he did, the forward motion

Court of Appeals of Indiana | Memorandum Decision 16A01-1703-PC-600 | October 2, 2017   Page 4 of 14
                 caused the door to shut on Trooper Howell’s left hand, injuring
                 one of his fingers badly enough that it later required stitches.
                 Trooper Howell hung on “for a little bit” but soon let go. Id. at
                 42. He called the State Police Post and gave them Graves’s
                 description and a description of his truck. That description was
                 relayed to law enforcement officials in the area.


                 Approximately ten minutes later, Deputy Joseph Mohr of the
                 Shelby County Sheriff’s Department observed Graves driving on
                 I-74. After ascertaining that the truck matched the description of
                 the subject vehicle, Deputy Mohr initiated a traffic stop. Graves
                 sped away and threw several items out of the window before he
                 eventually stopped after a chase. He was ultimately convicted of
                 escape as a class B felony, resisting law enforcement as a class D
                 felony, and found to be a habitual offender.


      Graves v. State, No. 16A01-1205-CR-227, slip op. at 1-2 (Ind. Ct. App. Nov. 8,

      2012), trans. denied.4


[4]   Graves was sentenced to twenty years of imprisonment, enhanced by thirty

      years due to his status as a habitual offender. On direct appeal, Graves

      challenged the sufficiency of the evidence supporting his conviction for Escape.

      This Court affirmed the conviction, and the Indiana Supreme Court denied

      transfer. Graves v. State, 981 N.E.2d 58 (Ind. 2013).


[5]   On March 24, 2013, Graves filed a petition for post-conviction relief, which was

      subsequently amended to include claims of free-standing error, allegations as to




      4
          The trial court vacated Graves’s conviction for Resisting Law Enforcement.


      Court of Appeals of Indiana | Memorandum Decision 16A01-1703-PC-600 | October 2, 2017   Page 5 of 14
      ineffectiveness of counsel, and Graves’s contention that he had not been

      afforded proper advisements before admitting to his status as a habitual

      offender. The State responded, admitting that Graves had not received

      advisements to which he was due. After a hearing conducted on February 22,

      2016 and January 12, 2017, the post-conviction court entered an order vacating

      the habitual offender enhancement and otherwise denying Graves post-

      conviction relief. This appeal ensued.



                                 Discussion and Decision
                         Post-Conviction Standard of Review
[6]   The petitioner in a post-conviction proceeding bears the burden of proving the

      grounds for relief by a preponderance of the evidence. Humphrey v. State, 73

      N.E.3d 677, 681 (Ind. 2017). On appeal, the petitioner then stands in the

      position of one appealing a negative judgment; that is, he or she must show that

      the evidence leads unerringly and unmistakably to a conclusion opposite that

      reached by the post-conviction court. Id. We do not defer to the post-

      conviction court’s legal conclusions, but 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. Id. at 682.


                          Ineffectiveness Standard of Review
[7]   Here, Graves alleges that his trial and appellate counsel were ineffective for

      failing to argue that his prosecution for Escape was an improper successive


      Court of Appeals of Indiana | Memorandum Decision 16A01-1703-PC-600 | October 2, 2017   Page 6 of 14
      prosecution. When evaluating an ineffective assistance of counsel claim, we

      apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668

      (1984). See Humphrey, 73 N.E.3d at 682. To satisfy the first prong, “the

      defendant must show deficient performance: representation that fell below an

      objective standard of reasonableness, committing errors so serious that the

      defendant did not have ‘counsel’ guaranteed by the Sixth Amendment.”

      McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing Strickland, 466 U.S. at

      687-88). To satisfy the second prong, “the defendant must show prejudice: a

      reasonable probability (i.e. a probability sufficient to undermine confidence in

      the outcome) that, but for counsel’s errors, the result of the proceeding would

      have been different.” Id. (citing Strickland, 466 U.S. at 694).


                                             Trial Counsel
[8]   At the outset, we observe that Graves’s trial counsel filed a pre-trial motion

      captioned “Motion to Dismiss (Barred by Prior Prosecution/Double

      Jeopardy).” (P.C-R. App. at 11.) The motion drafted by trial counsel included

      arguments that Graves’s prosecution in Decatur County violated the double

      jeopardy protections of the United States and Indiana Constitutions. It was

      further alleged that the prosecution “is barred by I.C. 35-41-4-3” and that the

      acts were part of “one continuous event.” (P.C-R. App. at 11.) A hearing was

      conducted on the motion to dismiss and the trial court denied Graves the relief

      he sought. Graves may not obtain post-conviction relief on a claim that trial

      counsel was ineffective due to a purported omission of a successive prosecution



      Court of Appeals of Indiana | Memorandum Decision 16A01-1703-PC-600 | October 2, 2017   Page 7 of 14
       claim when counsel asserted and argued the merits of such a claim but simply

       did not prevail.


[9]    Graves also argues that “charges [in Shelby County and Decatur County]

       should have been filed at the same time” and “trial counsel erred in not

       addressing this issue.” Appellant’s Brief at 18. It appears that Graves believes

       that it would have enhanced his position in plea bargaining if all charges were

       subject to disposition at the same time.


[10]   Criminal actions must be tried in the county where the offense was committed,

       unless otherwise permitted by law. Navaretta v. State, 726 N.E.2d 787, 789 (Ind.

       2000). See also Ind. Code § 35-32-2-1 (governing situations where the county of

       commission cannot be ascertained). Under our statutory scheme, one county

       may not dispose of charges or try a defendant for criminal offenses known to

       have been committed in another county. See id. To the extent that Graves

       suggests that individual county prosecutors have an obligation to coordinate

       filing of charges or conduct trials simultaneously with another county

       prosecutor, he offers no relevant authority for this proposition.


                                          Appellate Counsel
[11]   Although trial counsel preserved the issue for appeal, appellate counsel did not

       present an issue regarding successive prosecution. The standard of review for a

       claim of ineffectiveness of appellate counsel is the same as for trial counsel, in

       that the petitioner must show appellate counsel was deficient in performance

       and that the deficiency resulted in prejudice. Ritchie v. State, 875 N.E.2d 706,

       Court of Appeals of Indiana | Memorandum Decision 16A01-1703-PC-600 | October 2, 2017   Page 8 of 14
       723 (Ind. 2007). Such claims generally fall into three basic categories: (1)

       denial of access to an appeal, (2) waiver of issues, and (3) failure to present

       issues well. Id. Here, the second category is implicated.


[12]   In such cases, ineffectiveness is rarely found because “the decision of what

       issues to raise is one of the most important strategic decisions to be made by

       appellate counsel.” Id. at 724 (citing Bieghler v. State, 690 N.E.2d 188, 193 (Ind.

       1997)). Accordingly, our review is particularly deferential to counsel’s strategic

       decision to exclude certain issues in favor of others. Id. First, we look to see

       whether the unraised issues were significant and obvious upon the face of the

       record. Id. If so, then we compare these obvious issues to those raised by

       appellate counsel, finding deficient performance only when the unraised issues

       are clearly stronger than the issues presented. Id. If deficient performance is

       found, we next turn to the prejudice prong to determine whether the omitted

       issues would have been clearly more likely to result in reversal or an order for a

       new trial. Id.


[13]   Specifically, Graves contends that his appellate counsel should have argued that

       his prosecution in Decatur County was a prohibited successive prosecution

       because the Escape offense was part of the “same scheme or plan” as the Shelby

       County Resisting Law Enforcement offense. Appellant’s Brief at 18-19. We

       turn to consider whether this was a significant and obvious issue.


[14]   Pursuant to Indiana Code Section 35-41-4-4(a), a prosecution is barred if all the

       following exist:


       Court of Appeals of Indiana | Memorandum Decision 16A01-1703-PC-600 | October 2, 2017   Page 9 of 14
               (1) There was a former prosecution of the defendant for a
                   different offense or for the same offense based on different
                   facts.


               (2) The former prosecution resulted in an acquittal or a
                   conviction of the defendant or in an improper termination
                   under section 3 of this chapter.


               (3) The instant prosecution is for an offense with which the
                   defendant should have been charged in the former
                   prosecution.


[15]   The words “should have been charged” of subsection (a)(3) are to be read in

       conjunction with Indiana’s joinder statute. Williams v. State, 762 N.E.2d 1216,

       1219 (Ind. 2002). The joinder statute provides in relevant part:


               A defendant who has been tried for one (1) offense may
               thereafter move to dismiss an indictment or information for an
               offense which could have been joined for trial with the prior
               offenses under section 9 of this chapter. The motion to dismiss
               shall be made prior to the second trial, and shall be granted if the
               prosecution is barred by reason of the former prosecution.


       Ind. Code § 35-34-1-10(c).


[16]   In turn, section 9 provides in relevant part:


               Two (2) or more offenses may be joined in the same indictment
               or information, with each offense stated in a separate count when
               the offenses … (2) are based on the same conduct or on a series
               of acts connected together or constituting parts of a single scheme
               or plan.



       Court of Appeals of Indiana | Memorandum Decision 16A01-1703-PC-600 | October 2, 2017   Page 10 of 14
       Where two or more charges are based on the same conduct or on a series of acts

       constituting parts of a single scheme or plan, they should be joined for trial and

       when the State brings multiple prosecutions for a series of acts constituting parts

       of a single criminal transaction, it does so at its own peril. Williams, 762 N.E.2d

       at 1219. To determine whether contemporaneous crimes are part of a single

       scheme or plan, we examine “whether they are connected by a distinctive

       nature, have a common modus operandi, and a common motive.” Id. at 1220

       (quoting Henderson v. State, 647 N.E.2d 7, 10 (Ind. Ct. App. 1995)).


[17]   In Williams, defendant Williams faced charges in two different Marion County

       courts based upon an incident where Williams sold cocaine to an undercover

       police officer, the officer allowed Williams to leave but immediately radioed to

       arrange his arrest by uniformed officers, and Williams fled to a nearby vacant

       apartment where he was apprehended and found to have rock cocaine in his

       sock. 762 N.E.2d at 1217. Williams first pled guilty to the charges stemming

       from breaking into the apartment and possessing cocaine in his sock; then he

       was charged with Dealing in Cocaine, related to the undercover buy. The

       Indiana Supreme Court concluded that the charge of Dealing in Cocaine was

       barred by Indiana’s successive prosecution statute. Id. at 1219. The Court

       observed that the undercover officer had radioed Williams’ description and sent

       another officer in pursuit and that Williams had testified he took only a few

       steps before police cars arrived and he ran into an unoccupied apartment with

       officers in pursuit. Id. at 1220. The Court held:




       Court of Appeals of Indiana | Memorandum Decision 16A01-1703-PC-600 | October 2, 2017   Page 11 of 14
                These facts show that the Court 9 and Court 20 charges were
                based on a series of acts so connected that they constituted parts
                of a single scheme or plan. Therefore, they should have been
                charged in a single prosecution.


       Id.


[18]   In contrast, a panel of this Court concluded that an appellant who had fled from

       multiple officers in multiple counties was not entitled to have a charge of

       Resisting Law Enforcement dismissed under either Double Jeopardy principles

       or the successive prosecution statute. Johnson v. State, 774 N.E.2d 1012 (Ind.

       Ct. App. 2002). Lapel Police Officer Leeann Byrne tried to stop Johnson for

       erratic driving but, after an initial stop, Johnson drove off into adjacent

       Hamilton County. See id. at 1013. Officer Byrne stopped her pursuit due to

       foggy conditions but advised dispatch of the fleeing vehicle. Within five to ten

       minutes after the radio dispatch, Officer Aaron Von Housman of the

       Noblesville Police Department attempted to stop Johnson. Id. Although

       Johnson continued driving, he eventually stopped and was arrested a few hours

       later.


[19]   Johnson was convicted in Hamilton County of Operating a Vehicle While

       Intoxicated and Resisting Law Enforcement. He was also charged in Madison

       County with Driving While Suspended and Resisting Law Enforcement.

       Johnson’s motion to dismiss was denied, and he appealed, raising issues of

       Double Jeopardy and successive prosecution. See id. at 1014. The Johnson

       Court first concluded that Johnson was not subjected to double jeopardy by


       Court of Appeals of Indiana | Memorandum Decision 16A01-1703-PC-600 | October 2, 2017   Page 12 of 14
       prosecution of the Resisting Law Enforcement in Madison County because

       “Johnson’s actions in resisting Officer Byrne and Officer Von Housman were

       sufficiently separated by time and distance as to constitute two distinct, separate

       offenses.” Id. at 1015. The Court then found that there had been no statutory

       violation because Johnson’s crimes had been committed in multiple counties

       and could not have been charged together. Thus, the requirement that “the

       instant prosecution is for an offense with which the defendant should have been

       charged in the former prosecution,” I.C. § 35-41-4-4(a)(3), was not satisfied.

       Id.5


[20]   These cases had been decided when Graves’s appellate counsel selected which

       issue would be presented on direct appeal. The facts of record indicate that

       Graves fled from multiple officers in multiple jurisdictions. He did not merely

       take a few steps after one officer declined pursuit before being arrested by other

       officers, as was the case in Williams. Rather, the facts of the instant case

       substantially mirror those in Johnson. We conclude that appellate counsel did

       not omit a significant and obvious issue when declining to argue that Graves

       was subjected to a prohibited successive prosecution.




       5
        Subsequently, in Sanders v. State, 914 N.E.2d 792 (Ind. Ct. App. 2009), an appellant who had fled from
       multiple officers in a lengthy chase, and had been convicted of two counts of Resisting Law Enforcement,
       attempted to distinguish Johnson. Sanders did not specifically claim that the successive prosecution statute
       had been violated. However, he contended that he had twice been convicted for one continuous offense,
       arguing he had engaged in “one continuous act of flight from police officers” and “there was a gap of only
       minutes instead of the two to three hour gap in Johnson.” Sanders, 914 N.E.2d at 794-95. The Sanders Court
       concluded “in the present case, as in Johnson, there were two distinct pursuits.” Id. at 795.

       Court of Appeals of Indiana | Memorandum Decision 16A01-1703-PC-600 | October 2, 2017           Page 13 of 14
                                               Conclusion
[21]   Graves has not established that he was denied the effective assistance of trial or

       appellate counsel. The post-conviction court properly denied Graves’s petition

       for post-conviction relief, in part.


[22]   Affirmed.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 16A01-1703-PC-600 | October 2, 2017   Page 14 of 14
