MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                        Dec 10 2015, 8:27 am

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
Hilary Bowe Ricks                                        Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Jamie Carson,                                            December 10, 2015
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A05-1502-PC-69
        v.
                                                         Appeal from the Marion
                                                         Superior Court
State of Indiana,
                                                         The Honorable Lisa F. Borges,
Appellee-Respondent.                                     Judge
                                                         The Honorable Anne M.
                                                         Flannelly, Magistrate
                                                         Trial Court Cause No.
                                                         49G04-9910-PC-189843



Riley, Judge.


Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015         Page 1 of 27
                                   STATEMENT OF THE CASE

[1]   Appellant-Petitioner, Jamie Carson (Carson), appeals the post-conviction

      court’s denial of his petition for post-conviction relief.


[2]   We affirm, in part, reverse, in part, and remand, in part.


                                                    ISSUE

[3]   Carson raises two issues on appeal, which we restate as the following single

      issue: Whether Carson was denied effective assistance of trial and appellate

      counsel.


                           FACTS AND PROCEDURAL HISTORY

[4]   We adopt this court’s statement of facts as set forth in our memorandum

      decision issued in Carson’s direct appeal, Carson v. State, No. 49A05-0206-CR-

      260 (Ind. Ct. App. May 28, 2003), trans. denied:

              On October 28, 1999, at approximately 6:30 a.m., [E.H.] and [J.R.]
              were asleep in their apartment when three intruders, Carson, Bryant
              Clark [(Clark)], and Joshua Powell [(Powell)], broke in and awakened
              them. The intruders first went into [E.H.’s] room, where Clark pulled
              a gun and demanded money. Carson and Powell then started looking
              through [E.H.’s] room. After [E.H.] informed them that his roommate
              was home, the intruders then went to [J.R.’s] room and demanded
              money. While looking through [J.R.’s] personal belongings, Clark
              found gay paraphernalia. The intruders questioned him about whether
              he was gay to which he responded in the affirmative. They then made
              several “homophobic remarks,” such as “fag” and “queer.” [Trial
              Transcript pp. 49, 51].


              [J.R.] was then forced into [E.H.’s] room where the intruders asked
              [E.H.] if he too was gay. [E.H.], who was also gay, denied it because

      Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015   Page 2 of 27
        he was scared. [E.H.] and [J.R.] were then forced, at gunpoint, to
        perform oral sex on each other. [E.H.] was ordered to perform anal
        intercourse on [J.R.], an act which they feigned. [E.H.] and [J.R.]
        were then tied up and repeatedly beaten. [J.R.] was kicked in the head
        and the groin, whipped with belts and a coat hanger, and had items
        thrown at him. [E.H.] was beaten in the head and kicked in the groin
        and ribs. [E.H.] and [J.R.] were subsequently tied together, [J.R.’s]
        wrists to [E.H.’s] ankles and [E.H.’s] wrists to [J.R.’s] ankles with
        them facing each other.


        Carson retrieved a steam iron which he and Clark used to burn [J.R.]
        and [E.H.]. [E.H.] was burned on his shoulder, back, and buttocks.
        [J.R.] was burned on his back, buttocks, and the right side of his leg.
        [J.R.] was also forced to drink bleach, which he believes was mixed
        with urine. After drinking the bleach, [J.R.] began to vomit.


        After beating [J.R.] and [E.H.] some more, the intruders then left the
        apartment, but only after setting a fire in the living room. However,
        the intruders came back to the apartment and put out the fire. When
        they returned, they also retied the restraints on [J.R.] and [E.H.], who
        had attempted to free themselves. After the intruders left for the final
        time, [J.R.] and [E.H.] untied themselves and [E.H.] called the police.
        A sheriff’s deputy arrived at their apartment and [J.R.] and [E.H.]
        were taken to Wishard Hospital for treatment for the second and third
        degree burns they had suffered. [J.R.] was unable to walk because of
        the severe beating and burns he sustained on his leg. At the hospital,
        [J.R.] underwent two procedures to put a scope down his throat to
        determine if there were any burns caused by his ingestion of the
        bleach. [J.R.] has no lasting effects from the ingestion of the bleach,
        but both individuals have scars from the burns from the iron.


Carson was originally charged with thirty-seven Counts, however, on

November 30, 2000, the State amended the Information charging Carson with

the following seven Counts: Counts I-II, criminal deviate conduct, Class A

felonies, Ind. Code § 35-42-4-2 (1998); Count III, robbery, a Class A felony,


Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015   Page 3 of 27
      I.C. § 35-42-5-1 (1998); Count IV, attempted robbery, a Class A felony, I.C.

      §§35-41-5-1; -42-5-1 (1998); Counts V-VI, criminal confinement, Class B

      felonies, I.C. § 35-42-3-3 (1998); and Count VII, carrying a handgun without a

      license, a Class A misdemeanor, I.C. § 35-47-2-1 (1998). 1


[5]   At the outset, Carson was represented by private counsel who entered his

      appearance on November 1, 1999. Four days later, Carson’s private counsel

      withdrew from the case and Carson’s Second Pretrial Counsel entered his

      appearance. While representing Carson, Second Pretrial Counsel filed several

      motions including a Notice of Alibi. According to the Notice, Carson was at

      his sister’s home from October 25 through October 27, 1999. The alibi then

      claimed that on October 27, 1999, accompanied by Whitney Fells (Fells),

      Carson visited with his mother for about thirty or forty minutes. Thereafter,

      Carson and Fells drove to a friend’s house for a party, and then to Regina

      Daniels’ 2 (Daniels) house. Carson claimed he remained at Daniels’ house until

      the next day. On the afternoon of October 28, 1999, in the company of others,

      Carson stated that he spent time at Circle Centre Mall in Indianapolis, Indiana.




      1
          The remaining thirty Counts were not dismissed but resolved separately in a different cause.
      2
       The Order denying Carson’s petition for post-conviction relief refers to Daniels as ‘Davis.’ However, we
      note that at the evidentiary hearing, she is referenced as Daniels; as such, we will use that as her last name.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015               Page 4 of 27
      After that, he returned to Daniels’ house and remained there until around 8:22

      p.m. Carson claimed that he and Teresa Lewis (Lewis) thereafter checked in at

      the Signature Inn on Michigan Road and 86th Street in Indianapolis. He

      claimed that they spent the night at the inn until the next day, October 29, 1999.


[6]   On February 12, 2001, at the pretrial hearing, Carson’s Second Pretrial Counsel

      filed a motion to suppress and a Waiver of Trial by Jury. The trial court

      interrogated Carson before finding that he had knowingly, intelligently, and

      voluntarily waived his right to a jury trial. In July 2001, Carson’s Second

      Pretrial Counsel withdrew from the case, and from July 2001 to November

      2001, Carson was represented by two other attorneys. On December 12, 2001,

      Carson’s fourth pretrial attorney, who ended up being Carson’s Trial Counsel,

      entered his appearance. The record shows that Trial Counsel filed several

      motions including a Motion to Withdraw Waiver of Trial by Jury.


[7]   On April 12, 2002, shortly before Carson’s trial, the trial court heard Carson’s

      Motion to Withdraw Waiver of Trial by Jury. The motion was denied and

      Carson’s case proceeded to a bench trial. The State presented evidence that a

      day after the attack, J.R. identified Carson through a photographic array; at the

      live lineup, E.H. and J.R. were able to identify Carson as one of the assailants;

      and Carson’s fingerprint was found on the steam iron that was used to burn

      E.H. and J.R.


[8]   After the State rested its case, Carson testified with regards to his Notice of

      Alibi. Carson stated that on October 27, 1999, he went to his mother’s house


      Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015   Page 5 of 27
      escorted by Fells. Carson stated that he recalled that day because his mother

      was at home recuperating from her thyroid surgery. He further claimed that

      after spending about thirty or forty minutes at his mother’s house, he and Fells

      drove to Daniels’ house. Carson also indicated that Daniels’ live-in-boyfriend,

      Antoine Goodrich (Goodrich), and two other people were present at the house.

      Carson specified that he left Daniels’ house at around 8:00 p.m. that night and

      drove to a hotel. During cross-examination, Carson appeared to change his

      alibi, i.e.: that on October 27, 1999, he left his mother’s house at around 10:00

      p.m., he was with Fells, and they briefly detoured to another friend’s house for

      a party before going to Daniels’ house. In addition, Carson indicated that he

      stayed at Daniels’ house until the next day, October 28, 1999. When asked if

      he had gone to the Circle Centre Mall on the afternoon of October 28, and then

      to the Signature Inn as per the Notice of Alibi, Carson responded by stating that

      he stayed at the inn before going to the mall. Carson did not mention spending

      time with Lewis from October 27 through the morning of October 28, 1999.


[9]   At the conclusion of the evidence, the trial court found Carson guilty of all

      charges. On May 10, 2002, the trial court held a sentencing hearing.

      Subsequently, the trial court sentenced Carson to fifty years on Count I, to run

      concurrently with Count III; fifty years on Count II, to run concurrently with

      Count V; fifty years on Count III, to run concurrently with Count I; fifty years

      on Count IV, to run consecutively to Count V; ten years on Count V, to run

      consecutively to Count III; ten years on Count VI, to run consecutively to




      Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015   Page 6 of 27
       Count IV; and one year on Count VII, to run concurrently with Count VI.

       Carson’s aggregate sentence was 120 years. Carson appealed.


[10]   On direct appeal, Carson argued that the trial court erred in denying his motion

       to withdraw waiver of trial by jury; by admitting certain pieces of evidence; that

       there was insufficient evidence to convict him of the charged offenses; and that

       his sentence was inappropriate. On May 28, 2003, we affirmed Carson’s

       conviction and sentence.


[11]   On April 16, 2004, Carson filed a pro se petition for post-conviction relief

       alleging ineffective assistance of Trial Counsel for failing to: (1) challenge

       pretrial identification evidence, (2) call alibi witnesses, (3) properly challenge

       the testimony and evidence regarding the fingerprint lifted from the steam iron,

       (4) advise him not to waive the jury trial; and lastly, (5) a free-standing claim of

       double jeopardy. On October 7, 2013, through his PCR Counsel, Carson

       amended his petition by narrowing the allegations to ineffective assistance of

       Trial Counsel for failing to present alibi witnesses at his trial, and by adding

       ineffective assistance of Appellate Counsel for failing to argue that the trial

       court erred by ordering consecutive sentences for Counts IV and V, since it

       exceeded the statutory limitation of fifty-five years, which is the advisory

       sentence for the next highest class of offense, murder. See I.C. § 35-50-1-2(c)

       (1999). October 22, 2013, the State filed its response. On January 14, 2014, the

       post-conviction court held Carson’s evidentiary hearing. At the hearing,

       Carson called Second Pretrial Counsel, Trial Counsel, Appellate Counsel, and

       Lewis as witnesses.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015   Page 7 of 27
[12]   Carson’s Second Pretrial Counsel testified that due to the passage of time, he

       could not recall any particulars relating to Carson’s trial, but nonetheless, he

       indicated that if there was ever a notice of alibi filed, he would have met with

       the potential witnesses, but then again he had no recollection as to whether he

       met with any of the alibi witnesses. He further pointed out that he could not

       remember meeting or interviewing Lewis before Carson’s trial. Lastly, Counsel

       testified that when he withdrew from the case, he passed on Carson’s file to

       either Carson, Carson’s family, or to Carson’s replacement counsel.


[13]   Carson’s Trial Counsel, who represented Carson for the remainder of the

       pretrial period and the entire trial, stated that he recalled there being an alibi

       issue, but he had no recollection as to what set of charges it was designed for, or

       any of the witnesses’ names. Hoping to refresh Trial Counsel’s memory,

       Carson’s PCR Counsel requested a recess to allow Trial Counsel to look

       through Carson’s file. When the post-conviction court resumed, Trial Counsel

       stated that he found a number of his handwritten notes on the subject of

       potential alibi witnesses. He translated his notes by stating:

               Told [Carson] his alibi witnesses were present but could not remember
               anything. [Carson] told me he thought his sister would say what he
               wanted and I explained it does not work that way and reminded him
               that his sister was afraid to come to the office.

               Then I had a note here . . . [Carson’s mother] had told her daughter
               not to come.

               Next note is: [Carson] seemed not to care if the alibi witnesses
               testified. . . .



       Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015   Page 8 of 27
                There is: [Carson] . . . with my appraisal . . . suggested to send the
                alibi witnesses home. He said he would just testify.



       (PCR Tr. pp. 82-83). 3 Trial Counsel stated that even though he spoke to several

       alibi witnesses before Carson’s trial, he could not remember how many there

       were, or whether they were male or female. In addition, Trial Counsel stated

       that he could not remember meeting with Lewis as an alibi witness.


[14]   Lewis testified that she had been requested to go the City County Building;

       however, she could not recall if it was to offer evidence for Carson or to give a

       statement. Lewis indicated that she was at the court house on at least two

       occasions: the first time, she was informed that the case had been deferred, and

       the second time, she was outside the court room and was informed that she was

       no longer needed. With regards to her whereabouts on October 27 through the

       morning of October 28, 1999 when E.R. and J.H. were attacked, Lewis stated

       that Carson picked her up on October 27 at around 9:00 p.m., but no later than

       10:00 p.m., and that they both spent the night at Daniels’ house. Lewis claimed




       3
         Throughout this opinion, the records for the direct appeal will be referenced as “D.A.___” and the records
       for the post-conviction hearing will be referenced as “PCR___.”

       Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015           Page 9 of 27
       that she and Carson had sexual relations that night at Daniels’ house, and she

       woke up the next morning at around 10:00 a.m. and left for home.


[15]   Carson’s Appellate Counsel explained that part of standard procedure while

       preparing for a direct appeal is to contact the client, read the transcript and

       clerk’s record, research and formulate issues, and then draft and file an

       appellate brief. Appellate Counsel testified that while she had no specific

       recollection of Carson’s appeal, she remembered the case in general and some

       of the issues that she and Carson discussed. In addition, Appellate Counsel

       stated that one of the four issues raised on appeal involved Carson’s sentence.

       She testified that she suspected that she looked into the issue of Carson’s

       sentence exceeding the sentencing cap and double jeopardy concerns and

       concluded that they were nonviable issues.


[16]   Subsequently, both parties filed their proposed findings of fact and conclusions

       of law. On January 22, 2015, the post-conviction court denied Carson relief.


[17]   Carson now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                            I. Standard of Review

[18]   In a post-conviction proceeding, the petitioner must establish the grounds for

       relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);

       Overstreet v. State, 877 N.E.2d 144, 151 (Ind. 2007). When challenging the

       denial of post-conviction relief, the petitioner appeals a negative judgment.

       Overstreet, 877 N.E.2d at 151. To prevail, the petitioner must show that the
       Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015   Page 10 of 27
       evidence leads unerringly and unmistakably to a decision opposite that reached

       by the post-conviction court. Id. We will disturb the post-conviction court’s

       decision only where the evidence is without conflict and leads to but one

       conclusion and the post-conviction court reached the opposite conclusion.

       Henley v. State, 881 N.E.2d 639, 643-44 (Ind. 2008).


[19]   Where the post-conviction court enters findings of fact and conclusions of law,

       as in the instant case, we do not defer to the post-conviction court’s legal

       conclusions; the post-conviction court’s findings and judgment will be reversed,

       however, only upon a showing of clear error that leaves us with a definite and

       firm conviction that a mistake has been made. Overstreet, 877 N.E.2d at 151.


                                    II. Ineffective Assistance of Counsel

[20]   The standard by which we review claims of ineffective assistance of counsel is

       well established. In order to prevail on a claim of this nature, a defendant must

       satisfy a two-pronged test, showing that: (1) his counsel’s performance fell

       below an objective standard of reasonableness based on prevailing professional

       norms; and (2) there is a reasonable probability that, but for counsel’s errors, the

       result of the proceeding would have been different. Johnson v. State, 832 N.E.2d

       985, 996 (Ind. Ct. App. 2005) (citing Strickland v. Washington, 466 U.S. 668,

       690, 694, (1984), reh’g denied) reh’g denied, trans. denied. The two prongs of the

       Strickland test are separate and independent inquiries. Johnson, 832 N.E.2d at

       996. Thus, “[i]f it is easier to dispose of an ineffectiveness claim on the ground

       of lack of sufficient prejudice . . . that course should be followed.” Timberlake v.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015   Page 11 of 27
       State, 753 N.E.2d 591, 603 (Ind. 2001) (quoting Strickland, 466 U.S. at 697),

       reh’g denied; cert. denied, 537 U.S. 839 (2002).


[21]   Counsel is afforded considerable discretion in choosing strategy and tactics and

       we will accord those decisions deference. Id. A strong presumption arises that

       counsel rendered adequate assistance and made all significant decisions in the

       exercise of reasonable professional judgment. Id. The Strickland Court

       recognized that even the finest, most experienced criminal defense attorneys

       may not agree on the ideal strategy or the most effective way to represent a

       client. Id. Isolated mistakes, poor strategy, inexperience, and instances of bad

       judgment do not necessarily render representation ineffective. Id. Furthermore,

       we will not speculate as to what may or may not have been advantageous trial

       strategy as counsel should be given deference in choosing a trial strategy which,

       at the time and under the circumstances, seems best. Johnson, 832 N.E.2d at

       997.


                                                 A. Trial Counsel

[22]   Carson claims that he recalls asking Trial Counsel to have “Lewis, [] Daniels,

       and [] Goodrich” give an account of his whereabouts at his trial. (Appellant’s

       Br. p. 14). None of the witnesses were called to testify. As such, Carson urges

       us to find that Trial Counsel’s performance was deficient since he failed to call

       his alibi witnesses.


[23]   We strongly presume that counsel provided adequate assistance and exercised

       reasonable professional judgment in all significant decisions. McCary v. State,

       Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015   Page 12 of 27
       761 N.E.2d 389, 392 (Ind. 2002). We assess counsel’s conduct based upon the

       facts known at the time and not through hindsight. State v. Moore, 678 N.E.2d

       1258, 1261 (Ind. 1997). As such, we do not “second-guess” strategic decisions

       requiring reasonable professional judgment even if the strategy in hindsight did

       not serve the defendant’s interests. Id.


[24]   Further, in reviewing claims of ineffective assistance, we are mindful that the

       failure to present an alibi defense is not necessarily ineffective assistance of

       counsel. D.D.K. v. State, 750 N.E.2d 885, 890 (Ind. Ct. App. 2001) (citing Jones

       v. State, 569 N.E.2d 975, 982-83 (Ind. Ct. App. 1991)). Absent a strong

       showing to the contrary, we normally presume counsel failed to present an alibi

       defense because it was not indicated by the circumstances or, if indicated, was

       rejected upon due deliberation. Lee v. State, 694 N.E.2d 719, 721 n.7 (Ind.

       1998).


[25]   Despite having three alibi witnesses—Lewis, Daniels, and Goodrich—Carson

       only elected to call Lewis at his evidentiary hearing. Lewis’ testimony was that

       Carson was with her on the night of October 27, 1999 until the morning of

       October 28, 1999. Carson asserts that Lewis’ testimony would have validated

       his claim that he was not at the scene of the crime on the morning of October

       28, 1999.


[26]   Turning to the record, we find that Lewis’ testimony was contradicted

       numerous times by the evidence to support the conclusion that she was not a

       credible witness. The record shows that Carson was involved in preparing his


       Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015   Page 13 of 27
       alibi a few months after his arrest. In the Notice of Alibi, although Carson

       claimed to have spent the night with Lewis at the Signature Inn, there was no

       mention of Lewis being with Carson at Daniels’ house on the evening of

       October 27, 1999, until the following morning as Lewis testified at the PCR

       hearing. Lewis’ testimony is also refuted by Trial Counsel’s testimony that

       “alibi witnesses were present but could not remember anything.” (PCR Tr. p.

       83). Also, Trial Counsel indicated that Carson did not seem to care if the

       witnesses testified, was agreeable to the decision of sending potential witnesses

       home, and did not mind testifying for himself about his location during the

       times the crimes occurred.


[27]   Lastly, we note that even if Trial Counsel called Lewis to testify consistently at

       Carson’s trial, she would have provided an inconsistent testimony with that of

       Carson. Carson exhaustively testified at his own trial regarding his

       whereabouts on the night of October 27 through the morning of October 28,

       1999. Carson failed to remark that he was with Lewis at any time on October

       27, and on the morning of October 28, 1999. Instead, he testified that on

       October 27 he was with Fells, Daniels, Goodrich, and two other people at

       Daniels’ house, and that he left Daniels’ house at some point and spent the

       remainder of his night in a hotel.


[28]   In addition, there was enough evidence to place Carson at the scene of the

       crime on October 28, 1999. At Carson’s trial, the State presented evidence that

       J.R. positively identified Carson through a photographic array a day after the

       attack; both E.H. and J.R. were able to identify Carson as one of the assailants

       Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015   Page 14 of 27
       at the live lineup; and Carson’s fingerprint was found on the steam iron that

       was used to burn E.H. and J.R.


[29]   Given the fact that Lewis’ testimony falls far short of establishing that Carson

       was in a different location when the crimes occurred; Trial Counsel’s testimony

       that the alibi witnesses were present but could not remember anything; and the

       overwhelming evidence placing Carson at the scene of the crime, we cannot say

       that Carson has shown that the results of his trial would have been different

       even if his alibi witnesses testified. Therefore, Trial Counsel did not render

       ineffective assistance counsel.


                                              B. Appellate Counsel

[30]   Next, Carson contends that his Appellate Counsel offered him inadequate

       assistance on appeal. The standard by which we review claims of ineffective

       assistance of appellate counsel is the same standard applicable to claims of trial

       counsel ineffectiveness. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App.

       2008), reh’g denied, trans. denied. Our supreme court identified three categories

       of appellate counsel ineffectiveness claims, including: (1) denial of access to an

       appeal; (2) waiver of issues; and (3) failure to present issues well. Bieghler v.

       State, 690 N.E.2d 188, 193-95 (Ind. 1997), reh’g denied, cert. denied, 525 U.S.

       1021 (1998).


[31]   “To show that counsel was ineffective for failing to raise an issue on appeal, the

       defendant must overcome the strongest presumption of adequate assistance,




       Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015   Page 15 of 27
       and judicial scrutiny is highly deferential.” Manzano v. State, 12 N.E.3d 321,

       329 (Ind. Ct. App. 2014). Furthermore,

               [t]o evaluate the performance prong when counsel failed to raise issues
               upon appeal, we apply the following test: (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. If the analysis under this test demonstrates deficient
               performance, then we examine whether “the issues which . . .
               appellate counsel failed to raise, would have been clearly more likely
               to result in reversal or an order for a new trial.” Ineffective assistance
               is very rarely found in cases where a defendant asserts that appellate
               counsel failed to raise an issue on direct appeal because the decision of
               what issues to raise is one of the most important strategic decisions to
               be made by appellate counsel.


       Id. at 329-30 (internal quotation marks omitted). Here, Carson contends his

       Appellate Counsel was ineffective because she failed to: (1) raise the issue that

       his consecutive sentence for Counts IV and V exceeded the maximum sentence

       permissible under the consecutive sentencing statute. See I.C. § 35-50-1-2(c)

       (1999); and (2) argue that his convictions for Counts V and VI created a double

       jeopardy violation. We will address each issue in turn.


                                          1. Consecutive Sentencing

[32]   As noted above, Carson’s sentence for attempted robbery conviction was fifty

       years, and his sentence for criminal confinement was ten years. The trial court

       ordered his fifty-year sentence to run consecutively to the ten-year sentence. It

       is Carson’s contention that Appellate Counsel was ineffective for failing to

       argue that the trial court erred by ordering consecutive sentences since his

       sentence for the combined charges exceeded the statutory limitation of fifty-five
       Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015   Page 16 of 27
       years, which is the advisory sentence for the next highest class of offense,

       murder. See I.C. § 35-50-1-2(c) (1999). Simply put, Carson posits that the trial

       court improperly ordered consecutive sentences; as such, we should find that

       Appellate Counsel rendered him ineffective assistance by failing to argue that

       issue on appeal.


[33]   With respect to consecutive sentencing, Indiana Code section 35-50-1-2(c)

       (1999) provides, in part:

                The court may order terms of imprisonment to be served consecutively
                even if the sentences are not imposed at the same time. However,
                except for crimes of violence, the total of the consecutive terms of
                imprisonment, exclusive of terms of imprisonment under I.C. § 35-50-
                2-8 [(1999)] and I.C. §. 35-50-2-10 [(1999)], to which the defendant is
                sentenced for felony convictions arising out of an episode of criminal
                conduct [4] 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.


       (emphasis added).


[34]   To develop his argument, Carson relies on Ellis v. State, 736 N.E.2d 731, 736

       (Ind. 2000). In that case, the jury found Ellis guilty of murder, two counts of




       4
        As used in this section, “episode of criminal conduct” means offenses or a connected series of offenses that
       are closely related in time, place, and circumstance. I.C. §.35-50-1-2(b) (1999).

       Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015          Page 17 of 27
       attempted murder, and burglary. Id. The trial court imposed consecutive

       sentences of sixty-five years for murder and fifty years for each attempted

       murder. Id. It also ordered a concurrent twenty-year sentence for burglary.

       The sentence thus totaled 165 years. Id. at 733.


[35]   In interpreting the consecutive sentencing statute, the Ellis court held:

                Adherence to this rule requires that we interpret the statute to exempt
                from the sentencing limitation (1) consecutive sentencing among
                crimes of violence, and (2) consecutive sentencing between a crime of
                violence and those that are not crimes of violence. However, the
                limitation should apply for consecutive sentences between and among
                those crimes that are not crimes of violence.


                Therefore, the trial court erred when it ordered Ellis’ sentences for the
                two counts of attempted murder [5] to be served consecutively for a
                total term of 100 years. This portion of the sentence exceeded the
                statutory limitation. The limitation should have been fifty-five years
                for consecutive sentencing, i.e., the presumptive sentence for the felony
                one class higher than attempted murder.


                The trial court did not err, however, by ordering the murder sentence
                served consecutively to the two counts of attempted murder without
                limitation. Therefore, Ellis may properly be sentenced for sixty-five
                years for murder, to be served consecutively with a fifty-five year




       5
         At the time of Ellis, attempted murder was not identified as a crime of violence, but it is under the current
       version of the statute. See I.C. §.35-50-1-2(a) (2).

       Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015             Page 18 of 27
               sentence for the attempted murders, resulting in a total sentence of one
               hundred and twenty years.


       Id. at 737-38.


[36]   It is undisputed that Carson’s felony convictions arose out of an episode of

       criminal conduct. The question here is whether the limitation upon consecutive

       sentencing would have applied to Carson’s convictions for Counts IV and V.

       For the purpose of the consecutive sentencing statute, we note that when

       Carson was sentenced, Class A robbery was delineated as a “crime of

       violence.” See I.C. § 35-50-1-2(a) (1999); however, an attempt to commit that

       offense was not expressly described as a crime of violence. In addition,

       criminal confinement, a Class B felony, was not considered a crime of violence

       under Indiana Code section 35-50-1-2(a) (1999). Here, Count IV attempted

       robbery and Count V criminal confinement are not crimes of violence. See I.C.

       § 35-50-1-2(c) (1999) (providing that limitation on consecutive sentences should

       apply between and among crimes that are not crimes of violence.)


[37]   Notably, pursuant to Ellis, consecutive sentences is permissible for nonviolent

       crimes, however, the sentence is subject to the sentencing cap. See Ellis, 736

       N.E.2d at 733. In this regard, we find that the trial court erred by ordering

       consecutive sentences since Carson’s sentence for the combined charges—

       attempted robbery and criminal confinement—exceeded the statutory limitation

       of fifty-five years, which is the advisory sentence for the next highest class of

       offense, murder. See I.C. § 35-50-1-2(c) (1999).


       Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015   Page 19 of 27
[38]   During Carson’s evidentiary hearing, Appellate Counsel testified that although

       she had no specific recollection of Carson’s appeal, she remembers the case in

       general and some of the issues that she and Carson discussed. She further

       stated that one of the four issues raised on appeal involved Carson’s sentence.

       Again, having no specific recollection, she speculated that she may have

       considered Carson’s sentence exceeding the sentencing cap but she never raised

       it.


[39]   The State argues that, even if Appellate Counsel argued that the trial court erred

       when it ordered consecutive sentencing for attempted robbery and criminal

       confinement, Carson was not prejudiced as a result of the error. We disagree.

       As discussed above, the lengthiest consecutive sentence that Carson would have

       received for attempted robbery and criminal confinement was fifty-five years;

       thus, the trial court erred in ordering consecutive sentences totaling sixty years.


[40]   Here, we find that Carson’s arguments do overcome the high bar our standard

       of review sets when challenging appellate counsel’s presentation of issues. If

       Appellate Counsel had presented the consecutive sentencing argument as

       Carson suggests, we do believe that it would have changed this court’s decision

       in Carson’s direct appeal, i.e., we would have remanded this case for

       resentencing. Carson’s claim for sentence revision and reduction did have a

       reasonable probability of being successful, so we find that Appellate Counsel

       did perform deficiently by failing to raise this claim.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015   Page 20 of 27
[41]   If we cannot say with confidence that the trial court would have imposed the

       same sentence had it properly considered reasons that enjoy support in the

       record, we will remand for resentencing. See Anglemyer v. State, 868 N.E.2d

       482, 490, clarified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007).

       Accordingly, because the trial court erred in sentencing Carson to consecutive

       sentences amounting to sixty years, five years more than what was permissible

       under the consecutive sentencing statute effective on the date Carson

       committed the crime, we order the trial court to enter a sentence of fifty-five

       years.


                                              2. Double Jeopardy

[42]   Carson lastly argues that his conviction on Counts V and VI, criminal

       confinement, constitute double jeopardy. The Indiana Constitution provides

       that “[n]o person shall be put in jeopardy twice for the same offense.” IND.

       CONST. art. 1, § 14. “Indiana’s Double Jeopardy Clause . . . prevent[s] the

       State from being able to proceed against a person twice for the same criminal

       transgression.” Hopkins v. State, 759 N.E.2d 633, 639 (Ind. 2001) (quoting

       Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). The Indiana Supreme Court

       has held that “two or more offenses are the ‘same offense’ in violation of Article

       I, Section 14 of the Indiana Constitution, 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, 717 N.E.2d at 49.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015   Page 21 of 27
[43]   “An offense is the same as another under the actual evidence test when there is

       a reasonable possibility that the evidence used by the fact-finder to establish the

       essential elements of one offense may have been used to establish the essential

       elements of a second challenged offense.” Id. The Indiana Supreme Court

       clarified this test in Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002), where it

       held that the test is not whether the evidentiary facts used to establish one of the

       essential elements of one offense may also have been used to establish one of

       the essential elements of a second challenged offense; rather, the test is whether

       the evidentiary facts establishing the essential elements of one offense also

       establish all of the elements of a second offense. If the evidentiary facts

       establishing one offense establish only one or several, but not all, of the essential

       elements of the second offense, there is no double jeopardy violation. Id.


[44]   As specified in his direct appeal, Carson, while armed with a handgun, broke

       into E.H.’s and J.R.’s apartment. Carson then made E.H. and J.R. submit to or

       perform criminal deviate conduct, robbed E.H., and attempted to rob J.R.

       Once Carson and his accomplices completed those offenses, they subsequently

       confined E.H. and J.R. by tying them together with a cord. Carson was

       subsequently charged with: Counts I-II, criminal deviate conduct; Count III,

       robbery; Count IV, attempted robbery; Counts V-VI, criminal confinement; and

       Count VII carrying a handgun without a license.


[45]   The charging information for Counts V and VI stated as follows:

               Count V
               . . . Carson, on or about October 28, 1999, did knowingly while armed

       Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015   Page 22 of 27
               with a deadly weapon, that is: a handgun, confine [E.H.] without the
               consent of [E.H.], by tying [E.H.] up with a cord.

               Count V
               . . . Carson, on or about October 28, 1999, did knowingly while armed
               with a deadly weapon, that is: a handgun, confine [J.R.] without the
               consent of [J.R.], by tying [J.R.] up with a cord.

               (D.A. App. p. 62).


[46]   Carson suggests that Counts V and VI violate the actual evidence test, and he

       maintains that “all of the conduct constituting Counts I through IV—[two

       counts of] criminal deviate conduct, robbery and attempted robbery—occurred

       while . . . [E.H. and J.R.] were confined.” (Appellant’s Br. p. 23). He further

       suggests that his case is analogous to Wethington v. State, 560 N.E.2d 496, 501

       (Ind. 1990), and that the trial court violated Indiana’s Double Jeopardy Clause

       by ordering separate sentences of ten years each for his two criminal

       confinement convictions.


[47]   In Wethington, two armed men broke into the house occupied by the three

       victims, bound the victims, and stole cash and marijuana. Id. at 501. The State

       then charged Wethington as follows:

               [Wethington did] knowingly or intentionally take property from
               another person or from the presence of another person, to wit: $120.00
               ... in cash and a small quantity of marijuana from the home of Pat
               Adair by using or threatening the use of force on any persons, to wit:
               Pat Adair, Dianne Adair and Danny Adair, in that [he] bound and
               gagged the above-named individuals, forced them to [lie] on the floor,
               covered them with a blanket, and poured gasoline over the area where
               the victims [lay]. All of the above acts were done while [Wethington]
               was armed with a deadly weapon, thereby committing Robbery, a

       Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015   Page 23 of 27
               Class B felony. . .

               [Wethington did] knowingly or intentionally confine another person,
               to wit: Pat Adair, Dianne Adair and Danny Adair by binding them
               with rope, gagging them, forcing them to lie on the floor, covering
               them with a blanket and pouring gasoline around the area where they
               lay, which events occurred within the residence of Pat Adair without
               the consent of Pat Adair, Dianne Adair and Danny Adair, all while
               said [] Wethington was armed with a deadly weapon, to wit: a gun,
               thereby committing Criminal Confinement, a Class B felony. . .

               Id. at 507.


[48]   Wethington was subsequently convicted of both offenses and received a

       separate sentence for each one. Id. On appeal, he argued that the imposition of

       separate sentences violated double jeopardy. Id. After acknowledging the

       statutory differences between the two offenses, our supreme court nevertheless

       held that sentences for both offenses violated double jeopardy because the “acts

       alleged by the State to substantiate a necessary element of the robbery charge,

       i.e., the force that was used to effectuate the taking, [were] precisely co-

       extensive with the acts alleged as constituting a violation of the criminal

       confinement statute . . . .” Id. at 508. Our supreme court further explained:

               Today’s decision does not affect the body of case law from this Court
               which makes it clear that, given a single criminal transaction, a
               defendant may properly be charged with, convicted of, and sentenced
               for both confinement and a distinct crime which entails some sort of
               confinement as necessary to effectuate that crime such as robbery or
               rape. The holding of this case is limited to instances such as this one
               where criminal confinement is charged along with another crime, the
               commission of which inherently involves a restraint on the victim’s
               liberty, and where the language of the charging instruments makes no
               distinction between the factual basis for the confinement charge and

       Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015   Page 24 of 27
               the facts necessary to the proof of an element of the other crime.

               Id. (internal citations omitted).


[49]   Although E.H. and J.R. were continuously confined while Carson and his

       accomplices effectuated the crimes of criminal deviate conduct, robbery and

       attempted robbery, it is possible to divide the confinement into two separate

       criminal transgressions. In Boyd v. State, 766 N.E.2d 396, 400 (Ind. Ct. App.

       2002), we addressed Indiana’s double jeopardy prohibition in confinement

       cases and applied the analytical framework espoused in Idle v. State, 587 N.E.2d

       712, 715 (Ind. Ct. App. 1992), to determine whether two punishments had been

       imposed for a single confinement arising from one set of operative

       circumstances. The Boyd court found the determining factor to be “whether the

       confinement may be divided into two separate parts.” Boyd, 766 N.E.2d at 400.

       “A confinement ends when the victim both feels and is, in fact, free from

       detention, and separate confinement begins if and when detention of the victim

       is re-established.” Id.


[50]   Unlike Wethington, the evidence shows that Carson’s confinement of E.H. and

       J.R. extended beyond what was necessary to commit criminal deviate conduct,

       robbery and attempted robbery. Turning to the facts of the instant case, after

       Carson broke into E.H.’s and J.R.’s apartment, they made E.H. and J.R.

       perform oral and anal sex on each other, robbed E.H., and attempted to rob

       J.R. Thereafter, Carson and his accomplices tied up E.H. and J.R. with a cord.

       Both E.H. and J.R. were repeatedly beaten. J.R. was kicked in the head and


       Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015   Page 25 of 27
       groin, and whipped with belts and a coat hanger. E.H. was also beaten in the

       head and kicked in the groin. Carson, with the help of his partners, retrieved a

       steam iron, plugged it in, and proceeded to burn E.H. and J.R. After beating

       E.H. and J.R. some more, Carson and his accomplices left, but only after

       setting a fire in the living room. A short while later, they returned to put out of

       the fire, and retied the restraints on J.R. and E.H. even tighter than before.


[51]   When Carson and the intruders left the apartment the first time, E.H. and J.R.

       attempted to free themselves. At that point, E.H. and J.R. felt they were both

       free from detention. The second criminal confinement occurred when Carson

       and his accomplices returned to the apartment and retied E.H. and J.R. even

       tighter than before. Accordingly, we find no merit in Carson’s claim that his

       convictions for criminal confinement violated double jeopardy. Thus, the post-

       conviction court did not err in rejecting Carson’s claim of ineffective assistance

       of Appellate Counsel on this basis.


                                               CONCLUSION

[52]   Based on the foregoing, we conclude that Carson was not denied effective

       assistance of Trial Counsel. However, we do conclude that Appellate Counsel

       offered Carson ineffective assistance for failing to argue that the sentences on

       Count IV, attempted robbery, and Count V, criminal confinement, exceeded

       the consecutive sentencing statute, and, as such, we remand to the trial court to

       enter a sentence of fifty-five years.


[53]   Affirmed, in part, reversed, in part, and remanded.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015   Page 26 of 27
[54]   Brown, J. and Altice, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A05-1502-PC-69 | December 10, 2015   Page 27 of 27
