 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
                                                                  FILED
                                                                Sep 18 2012, 8:47 am
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,                             CLERK
                                                                     of the supreme court,
                                                                     court of appeals and
 collateral estoppel, or the law of the case.                               tax court




ATTORNEYS FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

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

DEIDRE R. ELTZROTH                                   JUSTIN F. ROEBEL
Assistant Chief Deputy Public Defender               Deputy Attorney General
Indianapolis, Indiana                                Indianapolis, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA

TAVARIO BASKIN,                                      )
                                                     )
       Appellant-Defendant,                          )
                                                     )
                vs.                                  )        No. 20A03-1202-PC-79
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                      APPEAL FROM THE ELKHART CIRCUIT COURT
                         The Honorable Gene R. Duffin, Senior Judge
                               Cause No. 20C01-0811-PC-19


                                         September 18, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
      Tavario Baskin appeals from the denial of his petition for post-conviction relief,

presenting the following restated issue for review: Did Baskin’s appellate counsel render

ineffective assistance in arguing aggravating and mitigating circumstances when challenging

Baskin’s sentence upon direct appeal?

      We affirm.

      The following underlying facts were set out in an unpublished memorandum decision

affirming Baskin’s sentence upon direct appeal:

              In the early morning hours of March 2, 1996, Baskin was riding in a car
      with Games Birkhead and Abjul Johnson. Matthew Middleton flagged down
      their vehicle, displayed money, and asked to purchase drugs. The trio did not
      have drugs to sell. Baskin, however, exited the vehicle with a handgun and
      demanded Middleton’s money. A brief struggle ensued between Middleton
      and Baskin over the handgun, which ultimately discharged and struck
      Middleton in the abdomen. Baskin and his companions fled the scene.
      Middleton died at the hospital several hours later as a result of the gunshot
      wound.
              On April 9, 1996, the State charged Baskin, as well as Birkhead and
      Johnson, with murder. Baskin pleaded guilty on September 26, pursuant to a
      plea agreement in which the State agreed to dismiss a pending charge of
      robbery, a class A felony, under another cause number. Sentencing was left to
      the discretion of the trial court. On October 24, 1996, the trial court sentenced
      Baskin to sixty years in prison. The sentencing order sets forth the following
      mitigating and aggravating factors:

             The Court finds as mitigating circumstances the Defendant’s age and
             lack of a prior felony conviction. The Court finds as aggravating
             circumstances the fact that the Defendant was on probation as [sic] the
             time of the offense; the fact that the Defendant dropped out of school in
             the tenth grade; the fact that the Defendant used alcohol and drugs; the
             fact that the Defendant was involved in an armed robbery with injury to
             victims three (3) days after the murder; and the fact that an illegal
             handgun was used in the commission of the crime. The Court finds that
             the aggravating circumstances outweigh the mitigating circumstances.

Baskin v. State, No. 20A03-0609-CR-437, slip op. at 2-3 (Ind. Ct. App. Mar. 22, 2007)


                                             2
(internal footnote and citation to Appendix omitted).

       In challenging his sentence upon direct appeal, Baskin argued that the trial court relied

upon two aggravating circumstances that were invalid under Blakely v. Washington, 542 U.S.

296 (2004). Blakely held that a trial court may not enhance a sentence based on additional

facts, unless those facts are either (1) a prior conviction; (2) found by a jury beyond a

reasonable doubt; (3) admitted by the defendant; or (4) found by the sentencing judge after

the defendant has waived Apprendi rights1 and consented to judicial factfinding. Baskin

argued upon direct appeal that, because a jury did not find that he was involved in an armed

robbery three days after the murder, nor that he used an illegal handgun in committing the

murder, those were not valid aggravators.

       At the time of his direct appeal, however, it was not yet clear whether the Blakely rule

applied retroactively to his case. Our Supreme Court indicated in Smylie v. State, 823 N.E.2d

679 (Ind. 2005), cert. denied, 546 U.S. 976, that Blakely applied retroactively to cases

pending on direct review or not yet final at the time Blakely was announced. Baskin was

sentenced in October 1996. Blakely was decided on June 24, 2004. Baskin initiated his

direct appeal by filing a belated notice of appeal in May 2006. Although acknowledging that

his case was not pending on direct review at the time Blakely was decided, Baskin argued

that it was not final in June 2004 and thus that Blakely applied. At that time, there were

Court of Appeals opinions supporting either view, compare Robbins v. State, 839 N.E.2d

1196 (Ind. Ct. App. 2005) (holding that an appeal was “final” for Blakely purposes when the




                                               3
right to pursue a timely appeal had lapsed and that “timely” in this context did not include the

prospect of filing a belated appeal under PC–2 rules); with Boyle v. State, 851 N.E.2d 996

(Ind. Ct. App. 2006), (rejecting Robbins and concluding that a case was not yet final for

Blakely purposes if a defendant still had the option of filing a belated appeal under Post-

Conviction Rule 2 at the time Blakely was decided), vacated, 848 N.E.2d 435 (Ind. 2007).

Our Supreme Court had not yet weighed in on that question. The panel that decided Baskin’s

direct appeal opted to follow the Robbins rationale and held that the aggravators in question

did not violate Blakely and therefore were not improper. This determination was later

vindicated by our Supreme Court in Gutermuth v. State, 868 N.E.2d 427 (Ind. 2007).

        Upon post-conviction, however, Baskin contends that his direct-appeal counsel’s

failed challenge under Blakely with respect to his involvement in a robbery ignored a

different challenge to that same aggravator that would have been successful. Specifically, he

claims that under a line of cases represented by Roney v. State, 872 N.E.2d 192 (Ind. Ct. App.

2007) trans. denied, when the State agrees to dismiss or forego charges in exchange for a

guilty plea, the dismissed charge cannot be used as an aggravating circumstance because it

circumvents the plea.

        Post-conviction proceedings are civil in nature. Therefore, a petitioner must establish

his claims by a preponderance of the evidence. Ind. Post–Conviction Rule 1(5); Hampton v.

State, 961 N.E.2d 480 (Ind. 2012). Moreover, post-conviction procedures do not offer a

super-appeal. Instead, “‘subsequent collateral challenges to convictions must be based on


1
 This refers to the holding in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000) that a criminal defendant has a
right to a jury assessment of any fact that increases the prescribed range of penalties to which he or she is

                                                     4
grounds enumerated in the post-conviction rules.’” Hampton v. State, 961 N.E.2d at 491

(quoting Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002), cert. denied, 540 U.S. 830

(2003)). A petitioner appealing from the denial of post-conviction relief stands in the

position of one appealing from a negative judgment. Hampton v. State, 961 N.E.2d 480.

Therefore, the petitioner must convince us “‘that the evidence as a whole leads unerringly

and unmistakably to a decision opposite that reached by the post-conviction court.’” Id. at

492 (quoting Stevens v. State, 770 N.E.2d at 745). Put another way, we must be convinced

“that there is no way within the law that the court below could have reached the decision it

did.” Id. (quoting Stevens v. State, 770 N.E.2d at 745) (emphasis in original). “We review

the post-conviction court’s factual findings for clear error, but do not defer to its conclusions

of law.” Id.

        A claim of ineffective assistance of appellate counsel is evaluated using the standard

articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668

(1984). Hampton v. State, 961 N.E.2d 480. In order to establish a claim of ineffective

assistance of counsel, a petitioner must demonstrate that counsel performed deficiently and

the deficiency resulted in prejudice. Id. (citing Strickland). In applying this standard, we

ask whether, in view of all the circumstances, counsel’s actions were “reasonable ... under

prevailing professional norms.” Strickland v. Washington, 466 U.S. at 688. Our scrutiny of

counsel’s performance must be “highly deferential.” Hampton v. State, 961 N.E.2d at 491

(quoting Strickland v. Washington, 466 U.S. at 689). Moreover, even if we deem appellate

counsel’s performance to be deficient, the petitioner will not prevail unless he or she


exposed, and that such fact must be established beyond a reasonable doubt.
                                                   5
demonstrates “a reasonable probability that the outcome of the direct appeal would have been

different.” Id. Finally, the two elements of Strickland are separate and independent

inquiries. Thus, if it is easier to dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice, that course should be followed. Landis v. State, 749 N.E.2d 1130 (Ind.

2001).

         Even accepting the dubious argument that appellate counsel’s performance was

deficient, we conclude that this would not have altered the outcome of Baskin’s appeal. The

trial court found as mitigating circumstances Baskin’s age and lack of a prior felony

conviction. Upon direct appeal, we determined that the trial court erred in failing to mention

the fact that Baskin pled guilty, but further observed that the error was harmless “[b]ecause

Baskin received a substantial benefit in exchange for his guilty plea, he was entitled to only

minimal mitigating weight for it at sentencing.” Baskin v. State, No. 20A03-0609-CR-437,

slip op. at 3. Juxtaposed against these mitigating factors were five aggravators: 1) Baskin

was on probation at the time of the offense; 2) he dropped out of school in the tenth grade; 3)

he used alcohol and drugs; 4) he used an illegal handgun in committing the murder; and 5) he

was involved in an armed robbery after the murder. We will disregard the final aggravator

for the sake of this analysis.

         As we have observed, Baskin’s guilty plea was entitled to little weight. His age – less

than one month away from his eighteenth birthday – is entitled to medium weight. The final

mitigator was the fact that he had not been convicted of a felony until the present offense.

Although this is true, it is also true that by the age of seventeen, Baskin had accumulated

what the prosecutor described as “a lengthy juvenile record, which stretched back to the time

                                                6
he was 13 years of age.” Appellant’s Appendix at 112. His juvenile record included a true

finding that he committed acts that would constitute the offense of intimidation of a witness,

a class D felony if committed by an adult. In fact, he was on probation for that adjudication

when he committed the present offense. Under the circumstances, this mitigator is also

entitled to little weight.

       On the other hand, the four valid aggravators were, in the aggregate, entitled to greater

weight. The fact that Baskin dropped out of school is not of significant weight. We note,

however, that the fact that a defendant was on probation at the time he or she committed the

offense, by itself, has been deemed enough to support a sentence enhancement. See Sargent

v. State, 875 N.E.2d 762 (Ind. Ct. App. 2007). In Baskin’s case, it is a significant

aggravating circumstance. The same can be said of the remaining aggravators, both of which

involved further illegal activity on Baskin’s part. Thus, even had appellate counsel prevailed

on an argument resulting in the invalidation of the commission of the additional robbery as a

valid aggravating circumstance, such would not have compelled the result that the sixty-year

sentence originally imposed was no longer sustainable. In short, there is not a reasonable

probability that the outcome of the direct appeal would have resulted in a reversal of Baskin’s

sentence because the trial court’s finding that the aggravating circumstances outweigh the

mitigating circumstances would not be appreciably undermined. See Hampton v. State, 961

N.E.2d 480. Baskin did not receive ineffective assistance of appellate counsel and the post-

conviction court did not err in denying Baskin’s petition premised upon that claim.

       Judgment affirmed.

BROWN, J., and PYLE, J., concur.

                                               7
