MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Jan 17 2017, 6:00 am

court except for the purpose of establishing                            CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John Emry                                                Curtis T. Hill, Jr.
Franklin, Indiana                                        Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

George King,                                             January 17, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1605-PC-1059
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Stanley Kroh,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G03-0201-PC-3711



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1605-PC-1059 | January 17, 2017     Page 1 of 11
                               Case Summary and Issues
[1]   Following a jury trial, George King was found guilty and convicted of two

      counts of attempted murder. The trial court sentenced King to an aggregate

      sentence of fifty years executed in the Indiana Department of Correction. On

      direct appeal, we affirmed his convictions. King v. State, 799 N.E.2d 42 (Ind.

      Ct. App. 2003), trans. denied, cert. denied, 543 U.S. 817 (2004). Thereafter, King

      filed a petition for post-conviction relief wherein he alleged ineffective

      assistance of trial and appellate counsel, which the post-conviction court

      denied. King now appeals, raising two issues for our review: (1) whether the

      post-conviction court erred in concluding King’s trial counsel was not

      ineffective, and (2) whether the post-conviction court erred in concluding

      King’s appellate counsel was not ineffective. Concluding trial and appellate

      counsel were not ineffective, we affirm.



                            Facts and Procedural History
[2]   We summarized the facts and procedural history of this case in King’s direct

      appeal:

              King and Kay King (“Kay”) are brother and sister. Their father,
              George King (“George”), was a multimillionaire. In 1999, Kay
              worked for George’s investment company, and he gave Kay
              power of attorney. King lived with George at his residence in
              Indianapolis. Kay and King had a strained relationship and
              often quarreled over who would control George’s multimillion-
              dollar estate after his death.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-PC-1059 | January 17, 2017   Page 2 of 11
        In the summer of 2000, Kay and King clashed. King yelled, “I'm
        going to kill you.” Dana Miller, George’s nursing aid, witnessed
        part of the fight. Miller heard Kay ask King, “Are you going to
        shoot me?” Miller saw King nod his head affirmatively and
        respond, “Yeah.”


        In October 2001, Kay saw King remove mail from her mailbox.
        During the same timeframe, one of Kay’s neighbors saw King’s
        car stop at Kay’s mailbox on numerous occasions. Later, Kay
        learned that change-of-address orders had been executed with the
        post office that changed the delivery of her investment and trust
        accounts to George’s address, where King lived.


        On the evening of November 14, 2001, Kay’s fifteen-year-old
        son, C.K., drove her home from his confirmation class. C.K.
        pulled into their garage and turned off the car. As C.K. and Kay
        sat talking, a man wearing a ski mask and trench coat appeared
        on the passenger side of the car. He had his right hand covered
        with a fast-food sack. The man removed the sack and fired a
        revolver at Kay and C.K. through the passenger window. C.K.
        was shot twice, in his neck and shoulder. Kay was shot five
        times; she sustained injuries to her face, shoulder, and hand.
        C.K. restarted the car and backed out of the garage. The
        assailant pursued them and continued to fire at Kay and C.K. as
        they drove away. Kay’s neighbors reported seeing a thin man,
        with a stature similar to King’s, wearing dark clothing and
        running away from Kay’s garage that night.


        C.K. sought help at a nearby fire station. Firefighters
        administered medical aid to Kay and C.K. before they were
        transported to the hospital. When firefighters questioned Kay
        and C.K. as to the identity of their attacker, they both identified
        King as the assailant. Marion County Sheriff’s Deputy Bradley
        Beaton interviewed C.K. at the fire station. C.K. told Deputy
        Beaton that King had shot him and his mother. C.K. said that he
        recognized King as the assailant because of his eyes, mouth, and
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-PC-1059 | January 17, 2017   Page 3 of 11
              build. Later at the hospital, Marion County Sheriff’s Department
              Detective John Maloney interviewed Kay and C.K. separately;
              both identified King as the attacker.


              On January 9, 2002, the State charged King with attempted
              murder, aggravated battery as a Class B felony, battery as a Class
              C felony, and carrying a handgun without a license as a Class A
              misdemeanor. On August 20, 2002, after reviewing Kay’s
              medical records, King moved for a mistrial so that he could
              investigate whether Kay’s identification testimony was a product
              of hypnosis. The trial court denied King’s motion. On August
              22, 2002, a jury found King guilty on all counts. The trial court
              entered judgment of conviction only on the two attempted
              murder counts.


      Id. at 45-46 (record citations and footnotes omitted).


[3]   The trial court sentenced King to fifty years on each count of attempted murder,

      to be served concurrently. In sentencing King, the trial court found numerous

      aggravating circumstances, including King’s criminal history, King’s

      premeditation in committing the offenses, and C.K.’s young age. King

      appealed his convictions, raising five issues for our review. We affirmed. Id. at

      51. In 2005, King filed a petition for post-conviction relief, alleging ineffective

      assistance of trial and appellate counsel, which the post-conviction court denied

      on April 12, 2016. King now appeals the denial of post-conviction relief.



                                 Discussion and Decision



      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-PC-1059 | January 17, 2017   Page 4 of 11
                                     I. Standard of Review
[4]   Post-conviction proceedings are not an opportunity for a super-appeal.

      Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839

      (2002). Rather, they create a narrow remedy for subsequent collateral

      challenges to convictions that must be based on grounds enumerated in the

      post-conviction rules. Id. If not raised on direct appeal, a claim of ineffective

      assistance of trial counsel is properly presented in a post-conviction

      proceeding. Id. A claim of ineffective assistance of appellate counsel is also an

      appropriate issue for post-conviction review. Id. The petitioner must establish

      his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).


[5]   A petitioner who has been denied post-conviction relief faces a “rigorous

      standard of review” on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).

      In reviewing the judgment of a post-conviction court, we may not reweigh the

      evidence nor reassess witness credibility; rather we consider only the evidence

      and reasonable inferences supporting the judgment. Hall v. State, 849 N.E.2d

      466, 468-69 (Ind. 2006). We will affirm the post-conviction court’s denial of

      post-conviction relief unless the evidence leads “unerringly and unmistakably to

      a decision opposite that reached by the post-conviction court.” McCary v.

      State, 761 N.E.2d 389, 391 (Ind. 2002). Only where the evidence is without

      conflict and leads to but one conclusion, and the post-conviction court reached

      the opposite conclusion, will the post-conviction court’s findings or conclusions

      be disturbed as being contrary to law. Hall, 849 N.E.2d at 469. Finally, we do

      not defer to the post-conviction court’s legal conclusions, but do accept its

      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-PC-1059 | January 17, 2017   Page 5 of 11
      factual findings unless they are clearly erroneous. Stevens v. State, 770 N.E.2d

      739, 746 (Ind. 2002), cert. denied, 540 U.S. 830 (2003).


      II. Ineffective Assistance of Trial and Appellate Counsel
[6]   King contends the post-conviction court erred in concluding his trial and

      appellate counsel were not ineffective. Specifically, he contends trial and

      appellate counsel rendered ineffective assistance in failing to challenge his

      sentence on the basis the trial court erred in finding aggravating circumstances

      not found by a jury beyond a reasonable doubt in light of Apprendi v. New Jersey,

      530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004). We

      disagree.


[7]   The standard for ineffective assistance of both trial and appellate counsel is the

      same. Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013). We review claims of

      ineffective assistance of counsel under the two-prong test set forth in Strickland

      v. Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffective

      assistance of counsel, the petitioner must show 1) his counsel’s performance

      was deficient, and 2) the lack of reasonable representation prejudiced

      him. Id. at 687. These two prongs are separate and independent

      inquiries. Manzano v. State, 12 N.E.3d 321, 326 (Ind. Ct. App. 2014), trans.

      denied, cert. denied, 135 S.Ct. 2376 (2015). Therefore, “if it is easier to dispose of

      an ineffectiveness claim on one of the grounds instead of the other, that course

      should be followed.” Talley v. State, 736 N.E.2d 766, 769 (Ind. Ct. App. 2000).




      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-PC-1059 | January 17, 2017   Page 6 of 11
[8]    To satisfy the first prong, the petitioner must show counsel’s representation fell

       below an objective standard of reasonableness and counsel committed errors so

       serious petitioner did not have the “counsel” guaranteed by the Sixth

       Amendment of the United States Constitution. Garrett, 992 N.E.2d at 719. To

       satisfy the second prong, the petitioner must show a reasonable probability that,

       but for counsel’s errors, the result of the proceeding would have been

       different. Id. “A reasonable probability is a probability sufficient to undermine

       confidence in the outcome.” Strickland, 466 U.S. at 694.


[9]    Under this standard, “[c]ounsel is afforded considerable discretion in choosing

       strategy and tactics, and we will accord those decisions

       deference.” Timberlake, 753 N.E.2d at 603. We recognize a strong presumption

       counsel rendered adequate legal assistance. Id. The defendant must offer

       “strong and convincing evidence to overcome this presumption.” Smith v.

       State, 822 N.E.2d 193, 202 (Ind. Ct. App. 2005), trans. denied.


                                            A. Trial Counsel
[10]   King argues his trial counsel rendered ineffective assistance in failing to object

       to the enhancement of his sentence based upon aggravators not found beyond a

       reasonable doubt by a jury. Specifically, King maintains he was sentenced after

       the United States Supreme Court decided Apprendi and trial counsel should

       have objected to the sentence in light of that case.


[11]   In 2000, the Supreme Court held in Apprendi, “Other than the fact of a prior

       conviction, any fact that increases the penalty for a crime beyond the prescribed

       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-PC-1059 | January 17, 2017   Page 7 of 11
statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” 530 U.S. at 490 (emphasis added). Four years later, the Supreme

Court interpreted the phrase “statutory maximum” in light of Apprendi as “the

maximum sentence a judge may impose solely on the basis of the facts reflected in the

jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303 (emphasis in

original). Then, in 2005, our supreme court was tasked with examining

Indiana’s sentencing scheme at the time in light of Blakely. In Smylie v. State,

the court noted, “While many who read Apprendi deduced that ‘statutory

maximum’ meant ‘statutory maximum,’ the Blakely majority chose to define it

as ‘the maximum sentence a judge may impose solely on the basis of the facts

reflected in the jury verdict or admitted by the defendant.’” 823 N.E.2d 679,

682-83 (Ind. 2005) (emphasis omitted) (quoting Blakely, 542 U.S. at 303), cert.

denied, 546 U.S. 976 (2005). The court further noted,


        While Blakely certainly states that it is merely an application of
        “the rule we expressed in Apprendi v. New Jersey,” it is clear
        that Blakely went beyond Apprendi by defining the term “statutory
        maximum.” As the Seventh Circuit recently said, it “alters
        courts’ understanding of ‘statutory maximum’” and therefore
        runs contrary to the decisions of “every federal court of appeals
        [that had previously] held that Apprendi did not apply to guideline
        calculations made within the statutory maximum.” Simpson v.
        United States, 376 F.3d 679, 681 (7th Cir. 2004) (collecting cases).
        Because Blakely radically reshaped our understanding of a critical
        element of criminal procedure, and ran contrary to established
        precedent, we conclude that it represents a new rule of criminal
        procedure.




Court of Appeals of Indiana | Memorandum Decision 49A05-1605-PC-1059 | January 17, 2017   Page 8 of 11
       Id. at 687 (alteration in original) (some citations omitted). Because Blakely

       created a new rule of constitutional criminal procedure, the court stated Blakely

       would apply “retroactively to all cases on direct review at the time Blakely was

       announced,” but “a defendant need not have objected at trial in order to raise

       a Blakely claim on appeal inasmuch as not raising a Blakely claim before its

       issuance would fall within the range of effective lawyering.” Id. at 690-91.

       Therefore, the court held “a trial lawyer or an appellate lawyer would not be

       ineffective for proceeding without adding a Blakely claim before Blakely was

       decided.” Id. at 690.


[12]   Here, King was sentenced in November 2002, after Apprendi but years before

       Blakely and Smylie were decided. Therefore, King’s argument invites us to hold

       his trial counsel was required to interpret Apprendi in a manner that would have

       predicted the Supreme Court’s decision in Blakely and our supreme court’s

       decision in Smylie. We decline such an invitation and note any objection to

       King’s sentence based on Apprendi would not have been sustained in light of the

       fact Apprendi had not yet been interpreted in a manner that would invalidate his

       sentence. See Walker v. State, 843 N.E.2d 50, 59 (Ind. Ct. App. 2006), trans.

       denied, cert. denied, 549 U.S. 1130 (2007). Moreover, our supreme court has

       made clear, “An attorney is not required to anticipate changes in the law and

       object accordingly in order to be considered effective.” Id. (internal quotation

       marks and citation omitted). We conclude the post-conviction court did not err

       in concluding King’s trial counsel did not render ineffective assistance.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-PC-1059 | January 17, 2017   Page 9 of 11
                                        B. Appellate Counsel
[13]   King also argues appellate counsel rendered ineffective assistance in failing to

       challenge his sentence on direct appeal on the same basis. As noted above, we

       apply the same standard of review to claims of ineffective assistance of appellate

       counsel as we apply to claims of ineffective assistance of trial counsel. Garrett,

       992 N.E.2d at 719.

               A petitioner must demonstrate both that his counsel’s
               performance was deficient and that the petitioner was prejudiced
               by the deficient performance. Because the strategic decision
               regarding which issues to raise on appeal is one of the most
               important decisions to be made by appellate counsel, appellate
               counsel’s failure to raise a specific issue on direct appeal rarely
               constitutes ineffective assistance. Our supreme court has adopted
               a two-part test to evaluate the deficiency prong of these claims:
               (1) whether the unraised issues are significant and obvious from
               the face of the record; and (2) whether the unraised issues are
               clearly stronger than the raised issues. If this analysis
               demonstrates deficient performance by counsel, the court then
               examines whether the issues that appellate counsel failed to
               raise would have been clearly more likely to result in reversal or
               an order for a new trial.


       Walker, 843 N.E.2d at 60 (quotations and citations omitted).


[14]   Here, we affirmed King’s conviction in 2003, our supreme court denied transfer

       in February 2004, and the Supreme Court decided Blakely four months later in

       June 2004. Similar to above, King’s argument invites us to hold appellate

       counsel was required to interpret Apprendi in a manner that would have

       predicted both the Blakely and Smylie decisions. However, “‘[a]ppellate counsel

       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-PC-1059 | January 17, 2017   Page 10 of 11
       cannot be held ineffective for failing to anticipate or effectuate a change in the

       existing law.’” Id. (citation omitted). King’s argument fails and we conclude

       the post-conviction court did not err in concluding King’s appellate counsel did

       not render ineffective assistance.



                                               Conclusion
[15]   The post-conviction court did not err in concluding King is not entitled to post-

       conviction relief on his claims he received ineffective assistance of trial and

       appellate counsel. Accordingly, we affirm.


[16]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-PC-1059 | January 17, 2017   Page 11 of 11
