MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                       Feb 28 2018, 11:37 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
Tracy A. Nelson                                          Chandra K. Hein
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Julian D. Grady,                                         February 28, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         02A03-1708-PC-1962
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1212-PC-218



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1708-PC-1962 | February 28, 2018        Page 1 of 7
[1]   Julian Grady appeals from the denial of his petition for post-conviction relief,

      arguing that the post-conviction court erroneously determined that he did not

      receive the ineffective assistance of appellate counsel. Finding no error, we

      affirm.


                                                     Facts
[2]   The underlying facts of this case were summarized by this Court in Grady’s

      direct appeal as follows:


              On November 22, 2008, Benjamin Busbee, Angela Day, and
              Andrea Simon were in a store named “Twenty Past Four” in
              Fort Wayne, Indiana. Busbee and Day were at the store to assist
              Simon, Busbee’s mother, who managed the store. Shortly
              thereafter, Grady and another male entered the store with
              firearms and proceeded to rob the store. Grady was “much
              taller” than the other perpetrator and wore a mask. Nonetheless,
              the mask did not cover his entire face, exposing his “main
              features,” including his mouth, nose, and eyes. Both men
              jumped on the counter and ordered Busbee, Day, and Simon to
              get on the floor. While Day and Simon kneeled down, Busbee
              lay on his back side looking at Grady. Grady ordered Busbee to
              stop when he saw that Busbee was looking at him. Grady
              emptied the cash register while the other perpetrator rummaged
              around looking for the safe. Both men left through the rear door,
              and police were notified.


      Grady v. State, No. 02A04-1004-CR-210, at *1 (Ind. Ct. App. Aug. 6, 2010)

      (internal citations omitted). On February 4, 2009, the State charged Grady with

      Class B felony robbery, Class D felony pointing a firearm, and Class D felony

      criminal recklessness. Following a jury trial, the jury found Grady guilty as


      Court of Appeals of Indiana | Memorandum Decision 02A03-1708-PC-1962 | February 28, 2018   Page 2 of 7
      charged. On November 13, 2009, the trial court sentenced Grady to

      consecutive terms of ten years for robbery and one and one-half years for

      pointing a firearm; the trial court vacated the criminal recklessness conviction

      based on double jeopardy concerns. Grady appealed the convictions, raising

      only one argument, which related to the victims’ photo array identification of

      Grady. This Court affirmed. Id.


[3]   On December 6, 2012, Grady filed a petition for post-conviction relief, arguing,

      among other things, that he received the ineffective assistance of appellate

      counsel because appellate counsel did not make a double jeopardy argument

      related to the robbery and pointing a firearm convictions in his direct appeal.

      Following an evidentiary hearing, on August 2, 2017, the post-conviction court

      denied Grady’s petition. Grady now appeals.


                                   Discussion and Decision
                                     I. Standard of Review
[4]   The general rules regarding the review of a ruling on a petition for post-

      conviction relief are well established:


              “The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
              “When appealing from the denial of post-conviction relief, the
              petitioner stands in the position of one appealing from a negative
              judgment.” Id. 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. Weatherford v.
      Court of Appeals of Indiana | Memorandum Decision 02A03-1708-PC-1962 | February 28, 2018   Page 3 of 7
              State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
              conviction court in this case 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 conviction
              that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d
              102, 106 (Ind. 2000) (quotation omitted).


      Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).


[5]   Grady’s sole argument on appeal is that the post-conviction court erroneously

      determined that he did not receive the ineffective assistance of appellate

      counsel. To establish ineffective assistance of appellate counsel, the petitioner

      must show that (1) appellate counsel was deficient in his or her performance,

      and (2) the deficiency resulted in prejudice. Id. at 269. Failure to satisfy either

      prong will cause the claim to fail. Henley v. State, 881 N.E.2d 639, 644 (Ind.

      2008). To satisfy the second prong, the defendant must show a reasonable

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

      have been different. Id.


                         II. Assistance of Appellate Counsel
[6]   Grady argues that his appellate counsel was ineffective because counsel did not

      argue in the direct appeal that Grady’s convictions for robbery and pointing a

      firearm violate the prohibition against double jeopardy. 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. Wharton v. State, 42

      Court of Appeals of Indiana | Memorandum Decision 02A03-1708-PC-1962 | February 28, 2018   Page 4 of 7
      N.E.3d 539, 541 (Ind. Ct. App. 2015). Our Supreme Court has held that two or

      more offenses are the “same offense,” in violation of our Constitution’s double

      jeopardy clause, “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 v. State, 717 N.E.2d 32, 49 (Ind. 1999)

      (emphases original).


[7]   Here, Grady argues that his convictions violate the actual evidence test. Under

      that test, the “actual evidence presented at trial is examined to determine

      whether each challenged offense was established by separate and distinct facts.”

      Id. at 53. To establish a double jeopardy violation under this test, the defendant

      “must demonstrate a reasonable possibility that the evidentiary facts 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.

      Grady contends, essentially, that because Simon is the listed victim in the

      robbery charge and is also one of the possible victims in the pointing a firearm

      charge, there is a reasonable possibility that the jury used the same evidentiary

      facts to establish the essential elements of both charges.


[8]   To convict Grady of Class D felony pointing a firearm, the State was required

      to prove beyond a reasonable doubt that he knowingly or intentionally pointed

      a firearm at Simon, Busbee, and/or Day. Ind. Code § 35-47-4-3(b) (2009); see

      also Appellant’s Direct Appeal App. p. 14 (charging information). Busbee

      testified that when Grady walked into the store, Busbee could see an AK-47

      Court of Appeals of Indiana | Memorandum Decision 02A03-1708-PC-1962 | February 28, 2018   Page 5 of 7
      assault rifle in Grady’s jacket. Trial Tr. p. 90. Grady pulled the weapon from

      his jacket, pointed it directly at Busbee, and demanded that he and Day, who

      was standing next to Busbee, get on the floor. Id. at 90, 132. Simon then

      entered the room, at which point Grady pointed the gun at her and ordered her

      to get onto the floor. Id. at 91, 156, 158-59. Simon agreed that there were

      “guns pointed at everybody in that room . . . .” Id. at 170. Regardless of which

      person the jury found was the victim of this offense, the offense was complete

      before the robbery occurred.


[9]   To convict Grady of Class B felony robbery, the State was required to prove

      beyond a reasonable doubt that he (1) knowingly or intentionally took property

      from Simon (2) by using or threatening the use of force on any person or by

      putting any person in fear, (3) while armed with a deadly weapon. Ind. Code §

      35-42-5-1 (2008); see also Appellant’s Direct Appeal App. p. 12 (charging

      information). After Grady ordered Busbee, Day, and Simon to get on the floor,

      he took money from the cash register and from Simon’s wallet while armed

      with a deadly weapon. To convict Grady of this offense, the State was not

      required to prove that he pointed a gun at Simon; instead, it needed to prove

      only that he was armed with a deadly weapon and put Simon, Busbee, or Day

      in fear.1 In other words, he committed two separate acts with the weapon: (1)




      1
       Simon testified that she was “scared for [her] life” during the encounter, trial tr. p. 163, Busbee testified that
      he felt “scared” and “threatened,” id. at 92, and Day testified that she was “very” scared, id. at 134.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1708-PC-1962 | February 28, 2018               Page 6 of 7
       he pointed it at Simon, Busbee, and/or Day; and (2) he was armed with it while

       robbing Simon.


[10]   Therefore, even if the jury found that Simon was the victim of the pointing a

       firearm offense, it would not have used that same evidence to convict Grady of

       robbing Simon. We see no reasonable possibility that the jury used the same

       evidentiary facts to convict Grady of both offenses. Under these circumstances,

       even if Grady’s appellate counsel had raised this issue in his direct appeal, the

       argument would not have been successful and the result of the appeal would

       not have been different. Consequently, the post-conviction court did not err by

       finding that Grady did not receive the ineffective assistance of appellate counsel

       or by denying Grady’s petition for post-conviction relief.


[11]   The judgment of the post-conviction court is affirmed.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1708-PC-1962 | February 28, 2018   Page 7 of 7
