FOR PUBLICATION
ATTORNEYS FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                               GREGORY F. ZOELLER
Public Defender of Indiana                     Attorney General of Indiana

RANDY A. ELLIOTT                               RICHARD C. WEBSTER
Deputy Public Defender                         Deputy Attorney General
Indianapolis, Indiana                          Indianapolis, Indiana

                                                                             FILED
                                                                        Mar 28 2012, 8:19 am

                              IN THE
                                                                                CLERK
                    COURT OF APPEALS OF INDIANA                               of the supreme court,
                                                                              court of appeals and
                                                                                     tax court




JUAN M. GARRETT,                               )
                                               )
       Appellant-Petitioner,                   )
                                               )
              vs.                              )      No. 49A04-1107-PC-410
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Respondent.                    )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Kurt M. Eisgruber, Judge
                       The Honorable Steven J. Rubick, Magistrate
                           Cause No. 49G01-0706-PC-120521


                                     March 28, 2012

                               OPINION - FOR PUBLICATION


BARTEAU, Senior Judge
                                 STATEMENT OF THE CASE

       Juan M. Garrett appeals from the denial of his petition for post-conviction relief.

He contends that his trial counsel and direct appeal counsel provided ineffective

assistance by failing to challenge alleged violations of the prohibition against double

jeopardy under the federal and state constitutions. We affirm.

                                           ISSUE

       Garrett raises one issue, which we restate as: whether Garrett received ineffective

assistance of trial and direct appeal counsel.

                        FACTS AND PROCEDURAL HISTORY

       The facts of this case, taken from this Court’s memorandum decision in Garrett’s

direct appeal, are as follows:

               Early in the morning of June 9, 2007, A.W. reported to the police
       that three men forced her into a van, took her to an apartment, and forced
       her to submit to multiple acts of oral sex and vaginal intercourse. One of
       the perpetrators gave her a piece of paper with the name “Juan” and a
       phone number written on it. He told her “to call him again if [she] wanted
       to have a good time again.” (Tr. at 368.) A.W. showed an officer the
       location of the apartment where she had been raped.
               Police discovered the phone number and apartment belonged to
       Garrett. On June 25, 2007, Garrett went to the Sex Crimes Office and was
       interviewed by Detective Linda White and Sergeant Craig McCartt.
       Detective White gave Garrett Miranda warnings, which Garrett said he
       understood. She then read him an advice of rights form, which he said he
       understood and signed.
               Garrett told the officers he had called off work on the evening of
       June 8 because he was sick, but he then went to the Embassy Suites for off-
       track betting. He claimed he returned home around 9:00 and went straight
       to bed. He denied that anyone was at his apartment that evening. When
       confronted with the note, Garrett said, “I meet a lot of people on the bus
       downtown. I have no idea from there.” (State’s Ex. 8 at 8.) Detective
       White asked Garrett if he would give a buccal swab, but Garrett refused.


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        Garrett’s DNA was later obtained by court order, and his DNA
matched a sample from A.W.’s rape examination. Detective White showed
A.W. a photographic array, and A.W. identified Garrett as one of the
perpetrators.
        On June 27, 2007, Garrett was charged with Count 1, Class A felony
rape (alleging he raped A.W. while armed with a knife); Count 2, Class A
felony rape (also alleging he raped A.W. while armed with a knife); Count
3, Class B felony criminal deviate conduct; Count 4, Class B felony
criminal confinement (alleging he confined A.W. in an apartment while
armed with a knife); and Count 5, Class C felony criminal confinement
(alleging he forced A.W. into a vehicle). The case was tried to a jury on
April 14, 2008. The jury found Garrett not guilty of Counts 1, 3, and 5, but
it could not reach a verdict on Counts 2 and 4.
        Counts 2 and 4 were retried to the bench on June 5, 2008. A.W.
testified that on the evening of June 8, 2007, she ended up in an apartment
with three men she did not know. One man was older, and two were
younger. After they entered the apartment, one of the men locked the door.
She did not want to be there. She begged them to let her go because she
had a sick child at home and needed to take care of him. The men refused,
and said they were “going to do things to” her, and she feared they were
going to hurt or kill her. (Tr. at 361.)
        The apartment was a one-room studio containing a bed and couch.
One of the men pushed her onto the couch, and the two younger men sat
down beside her. The older man sat down on the bed. The men started
drinking and smoking marijuana. She did not want to drink, but they
squeezed her jaw and poured alcohol into her mouth.
        After a while, the men pulled her clothes off. A.W. was forced onto
the bed:

      Q. How did you get over to the bed?
      A. I was pulled over to the bed and pushed down on the bed.
      Q. All right. When you were pushed down onto the mattress, what
      man were you with?
      A. The older one.
      Q. When the older man pushed you down on the mattress, what
      happened?
      A. He stuck his penis inside of me and had sex with me.
      Q. When you say he stuck his penis inside of you, what part of you?
      A. In my vagina.
      Q. When he put his penis in your vagina, how did that feel?
      A. I didn’t like it. It hurt.



                                     3
       (Id. at 363–64, 366). A.W. identified Garrett as the man who had raped
       her. A.W. asked him to stop, but he did not.
               While Garrett was having sex with her, she noticed a knife at the end
       of the bed. When he finished, he told her she could get dressed and leave.
       However, one of the younger men prevented her from leaving. She was
       finally allowed to leave after Garrett had sex with her again. Garrett gave
       her his phone number, and she also took the knife when he was not paying
       attention.
               A.W. ran to a gas station down the street and called 911. A.W. gave
       the police the note and the knife and showed them where the apartment
       was. She was then taken to a hospital for an examination. The nurse
       testified A.W. “was tearful, upset, she was cooperative with me, but very
       uncomfortable, having some pain, rated I believe a 9 out of 10.” (Id. at
       392.) A.W.’s injuries included a chipped tooth, a hemorrhage in her eye,
       and bruises on several parts of her body.
               The trial court found Garrett guilty of rape as a Class B felony,
       because A.W. had testified she had not seen anyone touch the knife. The
       trial court found him not guilty of criminal confinement, because A.W.
       testified one of the other men had prevented her from leaving after Garrett
       had sex with her.

Garrett v. State, No. 49A02-0807-CR-609, slip op. at 2-5 (Ind. Ct. App. Feb. 25, 2009)

(footnotes omitted), trans. denied. Garrett appealed, challenging the admissibility of his

statements to the police and the sufficiency of the evidence. This Court affirmed his

conviction. See id. at 9.

       Next, Garrett filed a petition for post-conviction relief.    After an evidentiary

hearing, the post-conviction court issued findings of fact and conclusions of law denying

Garrett’s petition. This appeal followed.

                            DISCUSSION AND DECISION

       In reviewing the judgment of a post-conviction court, appellate courts consider

only the evidence and reasonable inferences supporting the judgment. Hall v. State, 849

N.E.2d 466, 468 (Ind. 2006). To prevail on appeal from the denial of post-conviction


                                            4
relief, the petitioner must show that the evidence as a whole leads unerringly and

unmistakably to a conclusion opposite to that reached by the post-conviction court. Id. at

469.   Where, as here, the post-conviction court enters findings and conclusions in

accordance with Indiana Post-Conviction Rule (1)(6), we will reverse upon a showing of

clear error—that which leaves us with a definite and firm conviction that a mistake has

been made. Id.

       In this case, Garrett contends that his trial counsel, Melissa Perez, should have

filed a motion to dismiss the second rape charge prior to his retrial or should have

objected to the charge during retrial. He also contends that his direct appeal counsel,

Julie Ann Slaughter, should have argued that his retrial on the second rape charge was

impermissible. Specifically, Garrett contends that his retrial and subsequent conviction

on the second rape charge violated his federal and state constitutional protections against

double jeopardy, and his attorneys were ineffective for failing to raise these claims.

       To establish a claim of ineffective assistance of trial counsel, a defendant must

demonstrate that counsel performed deficiently and the deficiency resulted in prejudice.

Lee v. State, 892 N.E.2d 1231, 1233 (Ind. 2008) (citing Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). To establish the first element,

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 the “counsel” guaranteed by the Sixth Amendment. Henley v. State, 881 N.E.2d

639, 644 (Ind. 2008).     To establish the second element, the defendant must show

prejudice: a reasonable probability (i.e., a probability sufficient to undermine confidence

                                             5
in the outcome) that, but for counsel’s errors, the result of the proceeding would have

been different. Id. Counsel’s performance is presumed effective, and a defendant must

offer strong and convincing evidence to overcome this presumption. Ritchie v. State, 875

N.E.2d 706, 714 (Ind. 2007).

         The standard of review for a claim of ineffective assistance of appellate counsel is

the same as for trial counsel in that the defendant must show that appellate counsel was

deficient in his or her performance and that the deficiency resulted in prejudice. Henley,

881 N.E.2d at 644. Ineffective assistance of appellate counsel claims fall into three

categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to

present issues well. Carter v. State, 929 N.E.2d 1276, 1278 (Ind. 2010).

         We choose to resolve this appeal by addressing whether Garrett was prejudiced by

his attorneys’ failure to present his double jeopardy claims.        If we can resolve an

ineffective assistance claim on the question of prejudice, we need not address whether

counsel’s performance was deficient. Helton v. State, 907 N.E.2d 1020, 1023 (Ind.

2009).

         We begin with the federal double jeopardy clause. The Fifth Amendment to the

United States Constitution provides, in relevant part, that no person shall “be subject for

the same offense to be twice put in jeopardy of life or limb.” Federal double jeopardy

jurisprudence bars a defendant from being prosecuted for an offense after being acquitted

for the same offense. Griffin v. State, 717 N.E.2d 73, 77 (Ind. 1999). When an appellant

alleges a federal double jeopardy clause violation, we consider whether each statutory



                                              6
provision at issue requires proof of an additional fact which the other statutory provision

does not. McIntire v. State, 717 N.E.2d 96, 98 (Ind. 1999).

          In Griffin, a jury acquitted Griffin of felony murder by robbery and deadlocked on

charges of robbery and conspiracy to commit robbery. The State retried Griffin on the

robbery and conspiracy charges, and the jury found him guilty of both charges. On

appeal, Griffin contended that retrial on the robbery charge violated the federal double

jeopardy clause because the robbery was the underlying offense for his felony murder

charge, so an acquittal on one charge was, in essence, an acquittal on both. Our Supreme

Court determined that the felony murder by robbery charge and the robbery charge

required proof of the same facts and constituted the “same offense.” Id. at 78. However,

the Court noted that in order to acquit Griffin of felony murder by robbery, the jury did

not necessarily have to conclude that the State failed to prove the underlying felony of

robbery. Furthermore, Griffin’s constitutional jeopardy under the robbery charge was

merely suspended because of mistrial, and the jeopardy continued upon retrial rather than

constituting a separate jeopardy. Thus, Griffin was not placed in jeopardy twice for the

same offense, and his retrial and conviction did not violate the federal double jeopardy

clause.

          In the current case, Garrett’s two rape charges necessarily have the same statutory

elements and do not require proof of different facts. Thus, they appear to be the same

offense for the purposes of the federal double jeopardy clause. Nevertheless, “the ‘same

offense’ issue is only one aspect of double jeopardy jurisprudence.” Id. at 78. A retrial

following a hung jury does not violate the federal double jeopardy clause. Id. at 79.

                                               7
When the jury acquitted Garrett of one of the rape charges, it did not necessarily conclude

that the other rape charge was also unproven. In addition, if the State had failed to prove

the rape charge against Garrett on retrial, we presume that the trial court, as the finder of

fact, would have reached a verdict of acquittal. See id. at 81 (presuming that the jury

would have voted to acquit, rather than deadlock, on a charge of robbery if the State had

failed to carry its burden of proof where the jury had previously acquitted the defendant

of felony murder). Furthermore, as was the case in Griffin, Garrett was not put in

jeopardy twice.    Rather the jeopardy began when the rape charges were filed and

continued through his retrial. Consequently, we conclude that the retrial of the second

rape charge did not violate Garrett’s Fifth Amendment protection against double

jeopardy.

        Turning to Garrett’s double jeopardy claim under the Indiana Constitution,

Article 1, Section 14 provides: “No person shall be put in jeopardy twice for the same

offense.” 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. Nicoson v.

State, 938 N.E.2d 660, 662 (Ind. 2010). Two or more offenses are 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. Sloan v. State, 947 N.E.2d 917, 924

(Ind. 2011).

       The “statutory elements” test is the same as the analysis required by federal double

jeopardy clause jurisprudence. See Brown v. State, 912 N.E.2d 881, 896 (Ind. Ct. App.

                                             8
2009) (asserting that the statutory elements test is identical to the standard set forth in

Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 2d 321 (1932)),

trans. denied. Having determined that Garrett’s retrial did not violate the federal double

jeopardy clause, we also conclude that the retrial did not violate the statutory elements

test of the Indiana double jeopardy clause.

       The second element of Indiana’s double jeopardy clause analysis is the “actual

evidence” test. To show that two challenged offenses constitute the same offense under

the actual evidence test, a 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. Vestal v. State, 773 N.E.2d 805, 806 (Ind. 2002). Application of this test

requires the court to identify the essential elements of each of the challenged crimes and

to evaluate the evidence from the fact-finder’s perspective. James v. State, 953 N.E.2d

1191, 1194 (Ind. Ct. App. 2011).

       Based on this Court’s precedent, we conclude that the actual evidence test does not

apply to this case. In Buggs v. State, 844 N.E.2d 195, 198 (Ind. Ct. App. 2006), trans.

denied, the State charged Buggs with murder and felony murder, among other charges,

arising out of one act of murder. The jury acquitted Buggs of felony murder and could

not reach a verdict on the murder charge. The State retried Buggs on the murder charge,

and the jury convicted him. On appeal, Buggs argued, among other claims, that his

retrial violated Indiana’s prohibition against double jeopardy because the felony murder

and murder charges were the same offense and violated the actual evidence test. A panel

                                              9
of this Court noted that no Indiana appellate court has applied the actual evidence test

where there is an acquittal on one charge and retrial on another charge after a hung jury.

This Court further noted, “our Supreme Court has made no indication that the actual

evidence test is even used to determine whether two offenses are the same offense when

there is an acquittal on one offense and retrial on another offense.” Id. at 201-02.

Therefore, this Court concluded that the doctrine of collateral estoppel, rather than the

actual evidence test, is more appropriate in such situations.

       In the current case, both parties discuss the actual evidence test, but neither cites to

any appellate case where the actual evidence test has been applied to a case such as this.

Furthermore, our Supreme Court has not indicated since the issuance of Buggs that the

actual evidence test should be applied where the jury votes to acquit on one charge but

deadlocks on another charge, and the defendant is retried on the deadlocked charge.

Consequently, we choose not to apply the Richardson actual evidence test to this case

and instead turn to the doctrine of collateral estoppel.

       The doctrine of collateral estoppel, or in modern usage, issue preclusion, provides

that when an ultimate issue of fact has been determined by a valid and final judgment,

that issue cannot again be litigated between the same parties in any future lawsuit.

Coleman v. State, 946 N.E.2d 1160, 1164 (Ind. 2011). Collateral estoppel is not the same

as double jeopardy, but rather it is embodied within the protection against double

jeopardy. Id. at 1165. The traditional bar of double jeopardy prohibits the prosecution of

the crime itself, whereas collateral estoppel, in a more modest fashion, simply forbids the

government from relitigating certain facts in order to establish the fact of the crime. Id.

                                              10
In essence, the doctrine of collateral estoppel precludes the government from litigating

any issue that was necessarily decided by a jury’s acquittal in a prior trial. Id. To

decipher what a jury necessarily decided in a prior trial, courts should examine the record

of a prior proceeding, taking into account the pleadings, evidence, charge, and other

relevant matter, and conclude whether a rational jury could have grounded its verdict

upon an issue other than that which the defendant seeks to foreclose from consideration.

Id.

       In this case, the charging information describes both counts of rape identically, as

follows:

       On or about June 9, 2007, Juan Garrett did knowingly have sexual
       intercourse with [A.W.], a member of the opposite sex, when [A.W.] was
       compelled by force or the imminent threat of force, and further said act was
       committed while armed with a deadly weapon, that is: a knife.

Appellant’s Direct Appeal App. p. 28. The probable cause affidavit that accompanied the

information clarified that Garrett allegedly raped the victim twice during their encounter.

Next, in its instructions to the jury on the rape charges during the first trial, the trial court

stated identical elements for each charge:

       That the defendant, Juan Garrett, on or about June 9, 2007,
       1.     did knowingly
       2.     have sexual intercourse with [A.W.], a member of the opposite sex,
       3.     when [A.W.] was compelled by force or imminent threat of force,
       4.     and further said act was committed while armed with a deadly
              weapon, that is: a knife . . . .

Id. at 73-75.

       At the first trial, the victim testified that Garrett raped her twice during their

encounter. Specifically, she stated that after Garrett and his accomplices forced her to

                                               11
drink alcohol and removed her clothes, Garrett bent her over a mattress and forced his

penis into her vagina. Next, as the victim gathered her clothing and attempted to leave,

one of Garrett’s accomplices stopped her from leaving and raped her. Subsequently,

Garrett sent the other man outside to find Garrett’s mobile phone, forced the victim back

onto the mattress, and again forced his penis into her vagina. During closing statements,

the prosecution argued to the jury that Garrett committed two separate rapes upon the

victim.

       The jury heard evidence that two rapes occurred, and its verdict of acquittal on one

charge does not give rise to a conclusion that the jury decided that the other rape did not

occur. If the jury had concluded that the State had failed to prove that neither rape

occurred, then it would have acquitted Garrett of both charges of rape. Thus, a rational

jury could have grounded its vote to acquit on one count of rape on issues unrelated to the

second rape charge. We conclude that collateral estoppel did not bar relitigation of the

second count of rape.

       Garrett cites Brinkman v. State, 57 Ind. 76 (1877), to support his Indiana double

jeopardy claim, but that case is factually distinguishable. In that case, Brinkman was

convicted in separate trials of charges of selling intoxicating liquor to a minor. Our

Supreme Court concluded that one of the convictions could not stand because the same

evidence could have been used to convict Brinkman in both cases. By contrast, in this

case the doctrine of collateral estoppel is applicable rather than the “actual evidence” test.

Furthermore, unlike the appellant in Brinkman, Garrett was acquitted of one charge and



                                             12
convicted of the second charge upon retrial, rather than being convicted of both offenses.

Consequently, Brinkman is not controlling.

       Because Garrett’s double jeopardy claims are without merit, he was not prejudiced

by his trial and direct appeal attorneys’ failure to raise these claims. For these reasons,

we are not left with a definite and firm conviction that the post-conviction court has made

a mistake.

                                     CONCLUSION

       For the reasons stated above, we affirm the judgment of the post-conviction court.

       Affirmed.

FRIEDLANDER, J., and BROWN, J., concur.




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