MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                    Dec 19 2018, 7:46 am

regarded as precedent or cited before any                                    CLERK
                                                                         Indiana Supreme Court
court except for the purpose of establishing                                Court of Appeals
                                                                              and Tax Court
the defense of res judicata, collateral
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
J. Michael Sauer                                         Ian A. McLean
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jameil Cotton,                                           December 19, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-1236
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Stanley E. Kroh,
Appellee-Respondent.                                     Magistrate
                                                         The Honorable Sheila A. Carlisle,
                                                         Judge
                                                         Trial Court Cause No.
                                                         49G03-9811-PC-177029



Tavitas, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1236 | December 19, 2018                Page 1 of 8
                                             Case Summary
[1]   Jamiel Cotton, pro se, appeals the post-conviction court’s (“PC court”)

      resentencing judgment. We affirm.


                                                     Issue
[2]   Cotton raises a single issue which we restate as whether the PC court erred in

      resentencing Cotton to the maximum sentence of twenty years on Cotton’s

      burglary conviction, which the PC court reduced, on double jeopardy grounds,

      from a Class A felony to a Class B felony.


                                                     Facts
[3]   The facts, as stated in Cotton’s direct appeal, are as follows: “[O]n October 17,

      1998, Defendant Jameil Cotton broke into the apartment of Charese Cook.

      [Cotton] shot [Cook] seven times in the head, chest, and shoulder, killing

      [Cook].” Cotton v. State, 753 N.E.2d 589, 589-90 (Ind. 2001) (internal footnotes

      omitted). On November 16, 1998, the State charged Cotton with murder and

      burglary, a Class A felony.


[4]   After a jury trial, Cotton was convicted on both counts. On February 4, 2000,

      the trial court sentenced Cotton to sixty-five years in the Department of

      Correction (“DOC”) for murder and to twenty years in the DOC for burglary, a

      Class A felony, with the sentences to be served consecutively. Id. at 591.


[5]   Cotton filed a direct appeal on June 21, 2000. Attorney Aaron E. Haith served

      as Cotton’s appellate counsel. On appeal to our supreme court, Attorney Haith

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1236 | December 19, 2018   Page 2 of 8
      argued only that the trial court abused its discretion in denying Cotton a new

      competency hearing. Our supreme court affirmed the trial court’s judgment on

      August 20, 2001. Id.


[6]   On May 5, 2016, Cotton, pro se, filed a petition for post-conviction relief.

      Cotton alleged that Attorney Haith rendered ineffective assistance of appellate

      counsel in failing to argue on appeal that Cotton’s convictions for murder and

      burglary, a Class A felony, violated double jeopardy principles. Specifically,

      Cotton argued that Cook’s death was proved by the same evidence that was

      used to elevate the burglary to a Class A felony due to serious bodily injury.

      Cotton argued that, had Attorney Haith raised the double jeopardy issue,

      Cotton’s burglary conviction would have been reduced to a Class B felony.


[7]   The PC court conducted an evidentiary hearing on August 15, 2017. The State

      did not contest Cotton’s double jeopardy claim and agreed that Cotton’s

      burglary conviction should be reduced to a Class B felony.


[8]   On May 15, 2017, the PC court entered its order in which it found that

      Attorney Haith rendered ineffective assistance of appellate counsel. The PC

      court concluded that, had the double jeopardy issue been properly raised in

      Cotton’s direct appeal, our supreme court “would have remanded with

      instructions to reduce the class A felony burglary conviction to a class B felony

      and . . . impose[d] a twenty-year sentence on the burglary, consecutive to the

      sixty-five year sentence for murder, . . . consistent with the trial court’s original




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1236 | December 19, 2018   Page 3 of 8
       intention.” Appellant’s App. Vol. II p. 134. The PC court resentenced Cotton

       accordingly. Cotton now appeals.


                                                   Analysis
[9]    Cotton alleges a denial of PC relief stemming from the PC court’s resentencing

       decision. Specifically, Cotton argues that the PC court: (1) erred in

       “speculat[ing]” that a maximum twenty-year sentence for Class B felony

       burglary was “consistent with the trial court’s original intention”; and (2) erred

       in resentencing Cotton to a twenty-year term on the reduced Class B felony

       conviction. Appellant’s Br. pp. 8, 13.


[10]   Cotton contends that, pursuant to caselaw in effect when Cotton’s direct appeal

       was decided in 2001, “there were only two possible results had the double

       jeopardy issue been raised: either remand with instructions to impose the

       minimum sentence for burglary as a class B felony because the trial court had

       imposed the minimum sentence for burglary as a class A felony, or remand for

       resentencing on burglary as a class B felony without instructions.” Id. at 13.


[11]   Our supreme court has stated:


               The petitioner in a post-conviction proceeding bears the burden
               of establishing grounds for relief by a preponderance of the
               evidence. When appealing from the denial of post-conviction
               relief, the petitioner stands in the position of one appealing from
               a negative judgment. 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. [Where, as
               here, a post-conviction court has made findings of fact and
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1236 | December 19, 2018   Page 4 of 8
               conclusions of law in accordance with Indiana Post-Conviction
               Rule 1(6), 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.


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

       citations omitted). As the clearly erroneous standard “is a review for

       sufficiency of evidence, we neither reweigh the evidence nor determine the

       credibility of witnesses.” State v. Greene, 16 N.E.3d 416, 418 (Ind. 2014).

       “Rather, we ‘consider only the evidence that supports that judgment and the

       reasonable inferences to be drawn from that evidence.’” Id. (quoting Ben-Yisrayl

       v. State, 738 N.E.2d 253, 258-59 (Ind. 2000)).


[12]   We initially note that, at the time of Cotton’s offense in 1998, the applicable

       statutes provided that a person who is convicted of murder shall be imprisoned

       “for a fixed term of fifty-five (55) years, with not more than ten (10) years added

       for aggravating circumstances or not more than ten (10) years subtracted for

       mitigating circumstances.” Ind. Code § 35-50-2-3 (1998).


[13]   Also, in 1998, the sentencing range for a Class A felony was thirty years, “with

       not more than twenty (20) years added for aggravating circumstances or not

       more than ten (10) years subtracted for mitigating circumstances.” I.C. § 35-50-

       2-4 (1998). Likewise, the sentencing range for a Class B felony in 1998 was ten

       years, “with not more than ten (10) years added for aggravating circumstances



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1236 | December 19, 2018   Page 5 of 8
       or not more than four (4) years subtracted for mitigating circumstances.” I.C. §

       35-50-2-5 (1998).


[14]   At the crux of Cotton’s appeal is his contention that the PC court merely

       “speculat[ed]” that the trial court intended to impose a twenty-year sentence for

       Cotton’s burglary conviction. Appellant’s Br. p. 13. From our review of the

       sentencing record, the trial court made explicitly clear its intention, in its broad

       discretion, to impose an aggregate eighty-five-year sentence for Cotton’s

       burglary and execution-style killing of Cook.


[15]   At Cotton’s original sentencing hearing, the State asked the trial court to

       “impose the maximum sentence of eighty-five years based on all the

       circumstances and all the recommendation[s] of all the people involved.”

       Sentencing Tr. Vol. III p. 108. Subsequently, in the following brief colloquy

       between the trial court judge and defense counsel at Cotton’s original

       sentencing hearing, the trial court indicated its belief and agreement that an

       eighty-five-year sentence was the maximum sentence the trial court could

       impose upon Cotton:


               THE COURT: I’ll hear your argument.


               [Defense counsel]: Thank you, Judge. Let me start off by saying
               I believe -- and my understanding of the law is that the maximum
               sentence on this case is eighty-five years.


               THE COURT: I would agree with you, sir.



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1236 | December 19, 2018   Page 6 of 8
       Id. Thereafter, the trial court imposed an eighty-five-year sentence, comprised

       of a maximum sixty-five-year sentence for Cotton’s murder of Cook and an

       additional twenty years, ordered served consecutively, for the burglary

       conviction.


[16]   Here, in reviewing Cotton’s post-conviction petition, the PC court found:


               The sentencing record in the instant cause clearly shows that it
               was the trial court’s intention to impose the maximum sentence
               available on both counts. See 607-08. See also T.R. 605 (trial
               court agreed with defense counsel’s statement that the maximum
               sentence in Cotton’s case was eighty-five years). The reduction
               of Cotton’s burglary conviction from a class A to a class B felony
               does not change the two aggravating circumstances found by the
               trial court: that the defendant has a prior history of juvenile
               delinquency, which includes one felony true finding; and that the
               facts of this case were particularly aggravating. Nor does it
               change that, . . . no mitigating circumstances were adopted by the
               trial court. Pertinent case law shows that our supreme court, on
               direct appeal, would have remanded with instructions to reduce
               the class A felony burglary to a class B felony and to impose a
               twenty-year sentence on the burglary, consecutive to the sixty-
               five-year sentence for murder, and consistent with the trial court’s
               original intention. See Pierce v. State, 761 N.E.2d [826,] 830 [Ind.
               2002)]; Duncan [v. State], 23 N.E.3d [805,] 819 [Ind. Ct. App.
               2014)].


       Appellant’s App. Vol. II pp. 133-34 (internal citations omitted).


[17]   From our review of the record, the trial court’s intention was to impose a

       maximum sentence. Moreover, the State concedes here that, in light of the

       double jeopardy violation, the PC court correctly reduced Cotton’s burglary


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1236 | December 19, 2018   Page 7 of 8
       conviction from a Class A felony to a Class B felony. The twenty-year sentence

       imposed by the trial court on Cotton’s Class B felony burglary conviction

       corresponds with the upper bound of the statutory range prescribed by Indiana

       Code Section 35-50-2-5. Given the trial court’s remarks in sentencing Cotton

       and, specifically, the trial court’s explicitly-stated intention to impose a

       maximum sentence, we simply cannot say that the evidence as a whole leads

       unerringly and unmistakably to a conclusion opposite that reached by the PC

       court; and we find no clear error therefrom. 1


                                                    Conclusion
[18]   The PC court did not commit clear error in resentencing Cotton. We affirm.


[19]   Affirmed.


[20]   Brown, J., and Altice, J., concur.




       1
        Inasmuch as we find explicit support in the sentencing transcript for the PC court’s resentencing decision,
       we do not reach the remainder of Cotton’s arguments.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1236 | December 19, 2018                  Page 8 of 8
