MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       Jan 19 2016, 8:26 am
this Memorandum Decision shall not be
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.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Shamir Chappell                                          Gregory F. Zoeller
Carlisle, Indiana                                        Attorney General
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Shamir Chappell,                                         January 19, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         89A01-1503-PC-124
        v.                                               Appeal from the Wayne Superior
                                                         Court
State of Indiana,                                        The Honorable Gregory A. Horn,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         89D02-1208-PC-8



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 89A01-1503-PC-124 | January 19, 2016        Page 1 of 11
[1]   In 2014, Appellant-Defendant Shamir Chappell filed a petition for post-

      conviction relief (“PCR”) relating to his 2011 convictions for Class A felony

      aiding and abetting burglary resulting in bodily injury and Class C felony aiding

      and abetting battery with a deadly weapon. In his petition, Chappell claimed

      that he received ineffective assistance of trial and appellate counsel. The post-

      conviction court denied Chappell’s petition and Chappell now appeals pro se.

      We affirm.



                            Facts and Procedural History
[2]   We outlined the following underlying facts and procedural history of this case

      in Chappell’s direct appeal:

              In 2010, Elly Casebolt–Flanagan (“Casebolt–Flanagan”) rented a
              home in Richmond, Indiana to Dinashia Bee (“Bee”). Bee and
              Casebolt–Flanagan had an “understanding” that only Bee was to
              live at the home. Despite this, Bee lived at the home with her
              mother and two brothers. One of Bee’s brothers, Maurice Jones
              (“Maurice”) lived at the home with his wife, Heather Jones
              (“Heather”). Casebolt–Flanagan was unhappy with this and
              legally evicted Bee from the home on September 8, 2010. As a
              result of the eviction, Bee was given until September 13, 2010 to
              vacate the house and take her belongings. Although Bee and her
              mother moved out of state, Maurice and Heather stayed at the
              house on September 12, 2010 in order to remove the remainder
              of Bee’s belongings.

              That evening, Maurice went to the home of Carlotta Wilkerson
              (“Wilkerson”), with whom he had a relationship. Wilkerson
              began to send Heather text messages, taunting her that Maurice
              was going to leave her to be with Wilkerson. Wilkerson even
              called Heather and threatened to physically assault her.
      Court of Appeals of Indiana | Memorandum Decision 89A01-1503-PC-124 | January 19, 2016   Page 2 of 11
        Undaunted by these threats, Heather went to Wilkerson’s home
        to confront her. The two women argued, but Maurice was able
        to keep them physically separated. Maurice then went back to
        the rented home with Heather, and the two slept in the back
        bedroom of the house.

        At some point in the middle of that night, Maurice and Heather
        heard someone banging on the front door. Heather got out of the
        bedroom to see what was causing the noise when she saw the
        door fly open and Wilkerson and Chappell enter the house.
        Heather then ran back to the bedroom and shut the door.
        Wilkerson and Chappell tried to force their way into the
        bedroom, but Maurice and Heather held the door shut. Chappell
        then kicked the door repeatedly, eventually breaking it off the
        latch and hinges. Wilkerson was holding a steak knife, so
        Heather attempted to flee out the front door but was blocked by
        an unknown individual. Heather then ran to the basement in an
        attempt to flee out a back door, but Wilkerson followed her.

        In the basement, Wilkerson stabbed Heather in the arm.
        Maurice and Chappell soon came to the basement, and Chappell
        blocked Heather’s attempt to run back up the basement stairs.
        When Maurice attempted to come to Heather’s defense,
        Wilkerson told Chappell, “we’re in this together, do it,” and
        “what are you waiting for?” Tr. pp. 302, 245. Chappell then
        swung his fists at Maurice. Heather managed to escape back up
        the basement stairs, but as she did, Wilkerson stabbed her again,
        this time in the hip. Heather was then able to run out the front
        door and found shelter at a neighbor’s house, where the neighbor
        called the police. Maurice too ran to the front door. As he did,
        Chappell ran by him, telling Wilkerson, “come on, we gotta go.”
        Tr. p. 319. Wilkerson and Chappell left the house, and
        Wilkerson slashed the tires on Maurice’s car. Maurice went back
        into the house and also called the police.

        When the police arrived, the found they [sic] front door of the
        house dented and completely removed from the door frame.
        Heather was taken to the hospital, and it took eight medical
Court of Appeals of Indiana | Memorandum Decision 89A01-1503-PC-124 | January 19, 2016   Page 3 of 11
              staples to close her knife wounds. Both Maurice and Heather
              later identified Wilkerson and Chappell from a photographic
              array as their attackers. Both were “100%” positive of the
              accuracy of their identifications. Tr. pp. 182-83, 255.

              On December 7, 2010, the State charged Chappell as follows:
              Count I, aiding, inducing, or causing Class A felony burglary
              resulting in bodily injury; Count II, aiding, inducing, or causing
              Class B felony burglary of a dwelling; and Count III, Class B
              misdemeanor battery. The State also alleged that Chappell was
              an habitual offender. The State later moved to add Count IV,
              Class C felony battery, and moved later again to amend this
              charge to aiding, inducing, or causing Class C felony battery. At
              that time, the State also added Count V, which alleged Class D
              felony residential entry. A two-day jury trial commenced on
              February 7, 2011. At the conclusion of the trial, the jury found
              Chappell guilty on Counts I, II, IV, and V, but acquitted him on
              Count III. Chappell then admitted to being an habitual offender.

              On March 4, 2011, the trial court sentenced Chappell to forty
              years on Count I, ten years on Count II, and four years on Count
              IV. The trial court vacated the conviction on Count V on double
              jeopardy grounds. The court also attached an habitual offender
              enhancement of thirty years to the forty-year sentence on Count
              I, and ordered the sentences on the other counts to run
              concurrently with Count I. Thus, Chappell was sentenced to an
              aggregate of seventy years incarceration.

      Chappell v. State, 966 N.E.2d 124, 127-28 (Ind. Ct. App. 2012).


[3]   The trial court subsequently denied Chappell’s motion to correct error and

      Chappell appealed. Id. On appeal, this court affirmed Chappell’s convictions

      for Class A felony burglary and Class C felony battery and vacated his

      conviction for Class B felony burglary on double jeopardy grounds.



      Court of Appeals of Indiana | Memorandum Decision 89A01-1503-PC-124 | January 19, 2016   Page 4 of 11
      Additionally, we found that Chappell’s seventy-year sentence was not

      inappropriate.


[4]   On January 28, 2014, Chappell filed an amended PCR petition, arguing in part

      that his trial and appellate counsel were ineffective. Chappell argued that his

      trial counsel was ineffective for “fail[ing] to properly conduct an investigation

      and have court documents regarding the eviction filed by Casebolt-Flanagan

      against Bee,” and for “fail[ing] to object to Maurice’s testimony that Bee gave

      him permission to be in the house.” PCR Appendix p. 24. Chappell also

      argues that his appellate counsel was ineffective for failing to raise the issue of

      double jeopardy. After two hearings, the post-conviction court rejected

      Chappell’s argument and denied his petition.



                                 Discussion and Decision
[5]   Chappell appeals the denial of his PCR petition.

              In post-conviction proceedings, the petitioner bears the burden of
              proof by a preponderance of the evidence. Henley v. State, 881
              N.E.2d 639, 643 (Ind. 2008). “When appealing from the denial
              of post-conviction relief, the petitioner stands in the position of
              one appealing from a negative judgment.” Fisher v. State, 810
              N.E.2d 674, 679 (Ind. 2004). “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.”
              Kubsch v. State, 934 N.E.2d 1138, 1144 (Ind. 2010).


      Benefield v. State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011).


      Court of Appeals of Indiana | Memorandum Decision 89A01-1503-PC-124 | January 19, 2016   Page 5 of 11
[6]   Chappell claims that he received ineffective assistance of trial and appellate

      counsel.


              When evaluating a claim of ineffective assistance of counsel, we
              apply the two-part test articulated in Strickland v. Washington, 466
              U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the
              defendant must show that counsel’s performance was deficient.
              This requires a showing that counsel’s representation fell below
              an objective standard of reasonableness and that the errors were
              so serious that they resulted in a denial of the right to counsel
              guaranteed to the defendant by the Sixth and Fourteenth
              Amendments. Second, the defendant must show that the
              deficient performance resulted in prejudice. To establish
              prejudice, a defendant must show that there is a reasonable
              probability that but for counsel’s unprofessional errors, the result
              of the proceeding would have been different. A reasonable
              probability is a probability sufficient to undermine confidence in
              the outcome.


      Id. (quoting Perry v. State, 904 N.E.2d 302, 308 (Ind. Ct. App. 2009)).


                     I. Ineffective Assistance of Trial Counsel
[7]   Chappell claims that his trial counsel was ineffective for failing to properly

      investigate Bee’s eviction and for failing to object to hearsay testimony.


                                      1. Failure to Investigate
[8]   Chappell argues that there was not a residential burglary because, at the time of

      the crime, Bee had been evicted. He contends that his trial counsel was




      Court of Appeals of Indiana | Memorandum Decision 89A01-1503-PC-124 | January 19, 2016   Page 6 of 11
      ineffective for failing to interview Bee1 to establish the date of eviction and

      failing to obtain the court ordered eviction notice which would have shown that

      Bee “no longer had any possessory interest in the relevant property” at the time

      of the crime. Appellant’s Br. p. 12.


[9]   Chappell’s argument appears to be that because Bee had been evicted at the

      time of the crime, the home which he helped to break into was not a dwelling

      or residence. However, Chappell was convicted of Class A felony burglary

      under Indiana Code section 35-43-2-1(2) (2004) which does not require that the

      building broken into be a dwelling or residence:

               A person who breaks and enters the building or structure of
               another person, with intent to commit a felony in it, commits
               burglary, a Class C felony. However, the offense is:
                     (1) a Class B felony if:
                            (A) it is committed while armed with a deadly
                            weapon; or
                            (B) the building or structure is a:
                                    (i) dwelling; or
                                    (ii) structure used for religious worship; and
                     (2) a Class A felony if it results in:
                            (A) bodily injury; or
                            (B) serious bodily injury;
                     to any person other than a defendant.




      1
       “At the post-conviction relief evidentiary hearing, both Detective Michael French, a State’s witness, and
      Attorney Gottlieb [Chappell’s trial counsel] testified that they tried to contact Bee prior to trial but were
      unable to reach her.” PCR Appendix p. 24.

      Court of Appeals of Indiana | Memorandum Decision 89A01-1503-PC-124 | January 19, 2016              Page 7 of 11
       Therefore, whether Bee was evicted from the property prior to the commission

       of the crime is not relevant to the conviction for Class A felony burglary. The

       fact that the building was owned by Casebolt-Flanagan and that Chappell was

       not authorized to enter was sufficient to establish the elements of the crime.

       Accordingly, Chappell’s trial counsel was not ineffective for failing to

       investigate Bee’s whereabouts or obtain the eviction notice.


                                          2. Failure to Object
[10]   “To prove that ineffective representation resulted from the failure to object to

       hearsay statements, a defendant must prove that an objection would have been

       sustained, that the failure to object was unreasonable, and that he was

       prejudiced.” Potter v. State, 684 N.E.2d 1127, 1134 (Ind. 1997) (citing Thompson

       v. State, 671 N.E.2d 1165, 1170 (Ind. 1996)).


[11]   Chappell also argues that his trial counsel was ineffective for failing to object to

       Maurice’s testimony that Bee had given him permission to be in the residence

       she no longer legally had authority over and that this statement was hearsay.

       Chappell contends that had his trial counsel objected, it would have prevented

       the victims from showing that they had a right to be in the home. Again, this

       line of logic appears to be aimed at establishing that the house was not a

       dwelling because the victims did not have a right to be there.


[12]   Chappell’s argument fails for several reasons. First, Chappell does not cite to

       any specific hearsay statement in the record. Rather, Maurice only indicated

       that he and his wife had permission to be inside the home and refers to no out-

       Court of Appeals of Indiana | Memorandum Decision 89A01-1503-PC-124 | January 19, 2016   Page 8 of 11
       of-court statement. Furthermore, as we have determined above, whether or not

       the house was a dwelling is not relevant to prove the elements of the crime.

       Accordingly, Chappell has failed to show that any objection would have been

       sustained or, even assuming a hearsay statement was made, that he was

       prejudiced by it.


                 II. Ineffective Assistance of Appellate Counsel
[13]   Chappell argues that his appellate counsel was ineffective for failing to argue on

       direct appeal that his Class A felony burglary and Class C felony battery

       convictions violated double jeopardy. “In a claim that appellate counsel

       provided ineffective assistance regarding the selection and presentation of

       issues, the defendant must overcome the strongest presumption of adequate

       assistance, and judicial scrutiny is highly deferential.” Ben-Yisrayl v. State, 738

       N.E.2d 253, 260-61 (Ind. 2000) (citations omitted). “A defendant may establish

       that his appellate counsel’s performance was deficient where counsel failed to

       present a significant and obvious issue for reasons that cannot be explained by

       any strategic decision.” Id. Additionally, a defendant must show that the

       unraised issues are “clearly stronger than those presented.” Bieghler v. State, 690

       N.E.2d 188, 194 (Ind. 1997) (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir.

       1986)).


[14]   “[T]wo 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


       Court of Appeals of Indiana | Memorandum Decision 89A01-1503-PC-124 | January 19, 2016   Page 9 of 11
       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).

       Chappell claims that his convictions fail the actual evidence test. To establish

       that his convictions constitute the same offense under this test, Chappell “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. at 53.


[15]   To convict Chappell as an accomplice to Class A felony burglary resulting in

       bodily injury, the State was required to prove that he (1) knowingly or

       intentionally, (2) aided or induced Wilkerson, (3) to break and enter, (4) the

       building or structure of another person, (5) with the intent to commit a felony

       therein, and (6) it resulted in bodily injury to another person. Ind. Code §§ 35-

       43-2-1; 35-41-2-4. To convict Chappell as an accomplice to Class C felony

       battery with a deadly weapon, the State was required to prove that he (1)

       knowingly or intentionally, (2) aided or induced Wilkerson, (3) to touch

       another person in a rude, insolent, or angry manner, (4) with a deadly weapon.

       Ind. Code §§ 35-41-2-4; 35-42-2-1 (2009).


[16]   We disagree with Chappell’s contention that there is a reasonable possibility

       that the jury used the same evidentiary facts to establish the essential elements

       of both offenses. The fact that Chappell and Wilkerson broke down the front

       door, entered the house with the intent to attack Heather, and that Heather was

       injured as a result is sufficient to establish the elements of aiding and abetting

       burglary.

       Court of Appeals of Indiana | Memorandum Decision 89A01-1503-PC-124 | January 19, 2016   Page 10 of 11
[17]   After the burglary was complete and while the victims were hiding in the

       bedroom, Chappell “kicked the [bedroom] door repeatedly, eventually breaking

       it off the latch and hinges.” Chappell, 966 N.E.2d at 127. After Heather ran to

       the basement and was stabbed by Wilkerson, Chappell “blocked Heather’s

       attempt to run back up the basement stairs” and proceeded to attack Maurice as

       he attempted to defend Heather before Wilkerson again stabbed Heather. Id.

       This evidence is sufficient to establish Chappell’s aiding and abetting

       Wilkerson’s battery of Heather. Accordingly, we find that Chappell has failed

       to meet his burden to show that his trial or appellate counsel was ineffective.


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


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 89A01-1503-PC-124 | January 19, 2016   Page 11 of 11
