 Pursuant to Ind.Appellate Rule 65(D),                           FILED
                                                              Nov 02 2012, 9:13 am
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of                                      CLERK
                                                                    of the supreme court,
 establishing the defense of res judicata,                          court of appeals and
                                                                           tax court
 collateral estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

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

J. MICHAEL SAUER                                     ELLEN H. MEILAENDER
Deputy Public Defender                               Deputy Attorney General
Indianapolis, Indiana                                Indianapolis, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA

DENNIS LEER,                                         )
                                                     )
       Appellant-Defendant,                          )
                                                     )
                vs.                                  )       No. 20A04-1204-PC-185
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                      APPEAL FROM THE ELKHART CIRCUIT COURT
                         The Honorable Gene R. Duffin, Senior Judge
                               Cause No. 20C01-0807-PC-10


                                          November 2, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       Dennis Leer appeals the denial of his petition for post-conviction relief (PCR), by

which he sought to challenge the sentence he received following his conviction of murder.

Leer presents the following restated issue for review: Did the post-conviction court err in

determining that Leer’s trial and appellate counsel did not render ineffective assistance in

failing to challenge the imposition of Leer’s sixty-year sentence for murder consecutively to

a sentence for an unrelated conviction for attempted murder?

       We reverse and remand with instructions.

       The facts of the underlying occurrence were set out in this court’s affirmance of

Leer’s conviction upon direct appeal, as follows:

               Leer and Marie Kline were friends in high school in the 1980s. During
       the summer of 1985, Leer and his girlfriend briefly shared an apartment with
       Marie and her boyfriend. During that time, Leer and Marie became involved
       in a sexual relationship. After the couples moved apart, Leer and his girlfriend
       got married and no longer saw Marie.

              Two years later, between Thanksgiving and Christmas in 1987, Leer
       and his wife happened to see Marie at a local shopping mall. The Leers
       invited Marie to their home for dinner. During the dinner, Marie and Leer’s
       wife decided that they would try and keep in touch and get together more than
       they had in the past. Around that time, the Leers began experiencing marital
       problems because Leer’s wife thought Leer was spending too much time with
       one of his friends. For example, Leer’s wife became very angry when Leer
       and his friend went out of town on Christmas Eve and Leer was not at home
       with her and their new baby.

               During this time, Marie was living with her father and her brother and
       working both a full-time and a part-time job. On December 29, 1987, Marie
       went to bed after eating dinner with her father and brother. When Marie’s
       father (“Kline”) went to bed, he turned off all of the interior and exterior lights
       and locked the front door. At approximately 1:00 a.m., someone rang the front
       doorbell. Kline heard Marie get up and answer the door and he then fell back
       to sleep. When Kline got up the following morning, he noticed that Marie was
       not at home. Kline also noticed that Marie’s car was still in the garage, the
       exterior lights on the house were on, and the front door was unlocked. Kline

                                               2
         further noticed in the snow on his driveway one set of footprints leading from
         the driveway to the front door of the house and two sets of footprints leading
         from the front door of the house back to the driveway. The footprints ended as
         if two people had each gotten into a different side of the same vehicle.

                When Marie’s employer called looking for Marie because she had not
         reported for work that morning, Kline contacted the police to report that Marie
         was missing. The police found Marie’s coat on a pile of snow in a church
         parking lot about a mile from her house. There appeared to be a bullet hole
         and blood on the left side of the jacket.

                A few days later, on January 1, 1988, the police found Marie’s dead
         body in a nearby open field. She was lying on her back with her arms
         positioned over her head, and her intestines were coming out of a gunshot
         wound on her left side. Marie had also been shot in the mouth. Her jaw was
         fractured, the back of her throat and the base of her skull were perforated, and
         her brain stem was blown away. Both shots were made with a shotgun, as
         evidenced by the numerous shotgun pellets found inside Marie’s wounds. In
         addition, the police found a spent twelve-gauge shotgun shell near Marie’s
         body.

                The police also noticed drag marks in the snow from the road to the
         body. There was a large pool of blood in one area of the drag-path. The
         police further noticed one set of footprints going from the road to the large
         pool of blood on the drag-path, then back to the road, back to the drag-path,
         and on to where the body was found. Vaginal and cervical swabs were taken
         from Marie during an autopsy.

                The Elkhart County Sheriff’s Department investigated the case and
         considered several suspects, including Anthony Zeiger and Michael
         Lambright, Marie’s former boyfriends and Scott Ulrich, her boyfriend at the
         time of her death. No arrests were made however. In 2002, the Sheriff’s
         Department turned the case over to the Indiana State Police Cold Case Squad.
         The detectives assigned to the case sent Marie’s vaginal and cervical slides to
         the crime lab, which discovered sufficient spermatozoa on the slides from
         which DNA could be extracted and analyzed for comparison purposes.
         Subsequent tests revealed that Leer’s DNA matched the DNA found on
         Marie’s vaginal and cervical slides.

                Also in 2002, Leer’s fiancée,1 Crystal Lam, learned from Leer’s brother
         that Leer had previously been involved in a sexual relationship with Marie.

1
    Apparently, Leer was divorced from the woman to whom he had been married at the time of Marie’s death.

                                                     3
       When Lam confronted Leer with this information, Leer told her that he had
       had sexual intercourse with Marie the night she disappeared. According to
       Leer, his car got stuck in the snow that night, and he went to Marie’s house
       between twelve and one o’clock in the morning to see if her brother could help
       him. Marie answered the door and told him that her brother was sleeping but
       that she could help. They walked to his car, got it out of the snow, and had
       sexual intercourse. Marie then accompanied Leer to pick up a friend. On the
       way back to Marie’s house, the friend and Marie got into an argument when
       the friend insulted Marie’s brother, and the friend used Leer’s twelve-gauge
       shotgun to shoot Marie.

               The friend told Leer to stop the car, and the friend dragged Marie into a
       field. Leer heard another gunshot, and the friend came back to the car and told
       Leer to drive away. The friend had Marie’s coat and asked Leer to pull into a
       nearby church parking lot where the friend left the coat. Thinking that she was
       helping Leer, Lam told Leer’s story to the police. Leer was subsequently
       charged with and convicted of murder. He did not testify at trial and never
       named the friend that allegedly killed Marie.

Leer v. State, No. 02A04-0412-CR-701, 846 N.E.2d 374 (Ind. Ct. App. April 18, 2006), slip

op. at 2-5.

       On October 8, 2004, following a jury trial, Leer was convicted of murdering Marie

Kline. His conviction was affirmed by this court upon direct appeal, as set out above. On

July 11, 2008, Leer, pro se, filed a PCR petition. The Indiana Public Defender entered its

appearance on Leer’s behalf, after which Leer’s petition was amended. Following an

evidentiary hearing, the post-conviction court denied Leer’s petition on March 19, 2012.

       In a post-conviction proceeding such as this, the petitioner bears the burden of

establishing his claims for relief by a preponderance of the evidence. Kubsch v. State, 934




                                              4
N.E.2d 1138 (Ind. 2010). When appealing from the denial of a PCR petition, the petitioner

stands in the position of one appealing from a negative judgment and therefore must show

that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that

reached by the post-conviction court. Id. We further observe that the post-conviction court

is the sole judge of the weight of the evidence and credibility of witnesses. Fisher v. State,

810 N.E.2d 674 (Ind. 2004). Therefore, its findings and judgment will be reversed only upon

a showing of clear error, i.e., that which leaves us with a definite and firm conviction that a

mistake has been made. Kubsch v. State, 934 N.E.2d 1138.

       Leer was convicted in 1988 of attempted murder as a class A felony and sentenced to

forty years imprisonment. Following his 2004 conviction for murder, the trial court

sentenced Leer to sixty years imprisonment, to be served consecutively to the forty-year

sentence for the 1988 conviction. In his unsuccessful direct appeal of the 2004 conviction,

Leer presented four issues for review, but did not challenge the consecutive aspect of his

sentence.

       In the present appeal of the denial of his PCR petition, Leer contends trial and

appellate counsel rendered ineffective assistance in failing to challenge the trial court’s order

to impose his sixty-year sentence in the present case consecutively to the forty-year sentence

in the 1988 case. Leer was represented by the same attorney both at trial and upon direct

appeal and presents his argument in the form of ineffective assistance of both trial and

appellate counsel. We note, however, that this is not a scenario in which trial counsel is

required, or even expected, to lodge an objection. See Reed v. State, 856 N.E.2d 1189, 1194

(Ind. 2006) (“[c]ounsel need not object to preserve a sentencing error for review”).

                                               5
Therefore, we will analyze this issue as involving a claim of ineffective assistance of

appellate counsel.

       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 (Ind. 2012). 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. 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

demonstrates “a reasonable probability that the outcome of the direct appeal would have been

different.” Id.

       We begin with an inquiry into whether consecutive sentences were authorized in

Leer’s case at the time of sentencing. The authority to impose consecutive sentences is

granted by Ind. Code Ann. § 35-50-1-2 (West, Westlaw current with all 2012 legislation).

“The general rule is that the sentence in effect at the time of the commission of the crime is

the proper penalty.” Richards v. State, 681 N.E.2d 208, 213 (Ind. 1997). Therefore, we must

determine whether the version of I.C. § 35-50-1-2 in effect at the time Leer committed the

murder authorized consecutive sentences in the manner imposed by the trial court.

       I.C. § 35-50-1-2 contains provisions pertaining to discretionary consecutive sentences

                                              6
(found in subsection (a) at the time Leer committed this offense) and mandatory consecutive

sentences (subsection (b) at the time). The discretionary provision applies here. Both parties

agree that on December 29, 1987, I.C. § 35-50-1-2 conferred upon trial courts the discretion

to order that two sentences be served consecutively even if those two sentences were not

imposed contemporaneously. See, e.g., Hutchinson v. State, 477 N.E.2d 850 (Ind. 1985).

That changed, however, with our Supreme Court’s decision in Kendrick v. State, 529 N.E.2d

1311 (Ind. 1988). In Kendrick, upon petition for post-conviction relief, the appellant sought

to withdraw a guilty plea on grounds that he was not advised that as a consequence of his

plea, he might in later cases be ordered to serve those sentences consecutively to the one he

would then be serving. The Supreme Court affirmed the post-conviction court’s denial of the

PCR petition. In so doing, the Court concluded – for the first time – that a court could

impose consecutive sentences under I.C. § 35-50-1-2 only when said sentences were imposed

contemporaneously with each other. The Court explained:

       The language employed in Section (a) above by the legislature is restrictive.
       The general authority is limited to those occasions when a court is meting out
       two or more terms of imprisonment. If a court is contemporaneously imposing
       two or more sentences, it is granted the general statutory authority to order
       them to be served consecutive to one another. Section (a) does no more than
       this.

Kendrick v. State, 529 N.E.2d at 1312.2
      As indicated above, Kendrick was decided after Leer committed the present offense

and thus was not the law applicable to his sentence at the time. Leer claims, however, that

the court “was required to sentence Leer in accordance with Kendrick v. State” because in




                                              7
Bartruff v. State, 553 N.E.2d 485 (Ind. 1990) and Seay v. State, 550 N.E.2d 1284 (Ind. 1990),

the Supreme Court determined that the defendants in those cases should have been sentenced

consistent with the principles announced in Kendrick even though, as here, they committed

their respective crimes before Kendrick was decided. Leer also directs our attention to a case

of even more recent vintage, Stites v. State, 829 N.E.2d 527 (Ind. 2005), in support of this

argument.

        In Stites, in approximately1985, the defendant/appellant pled guilty to murder in an

agreement calling for Stites to serve a term of forty years imprisonment, to run consecutively

to a sentence imposed previously for a separate conviction. As part of the plea agreement,

the State agreed not to seek the death penalty. In 2002, Stites filed a petition for post-

conviction relief, alleging that her murder sentence was illegal because the trial court lacked

authority to order the sentence to be served consecutively to any other sentence. The post-

conviction court denied the petition following a hearing. The Supreme Court affirmed that

decision on grounds that Stites could not enter a plea agreement calling for an illegal

sentence, benefit from that sentence, and then later complain that it was an illegal sentence.

In so doing, however, the Court noted, citing Kendrick, “[a]t the time Stites committed the

offense the statute governing consecutive sentences was limited to those occasions where the

court was meting out two or more terms of imprisonment at one time.” Id. at 529. Stites thus

established that, for purposes of post-conviction review, cases decided before Kendrick were

nonetheless subject to the Kendrick holding that a court could order sentences to run


2
  In 1994, the General Assembly modified I.C. § 35-50-1-2 and impliedly overruled this aspect of Kendrick.
The relevant portion of the statute now reads, “The court may order terms of imprisonment to be served

                                                    8
consecutively under I.C. § 35-50-1-2(a) only if those sentences were being imposed at the

same time. This is true regardless of the fact that the law was otherwise before Kendrick, i.e.,

regardless of whether consecutive sentences were authorized by Hutchinson at the time the

defendant committed the offense in question. Stites also renders irrelevant the State’s claim

that a subsequent revision to I.C. § 35-50-1-2, which effectively overruled Kendrick and

reinstated the Hutchinson view of consecutive sentencing, rendered Kendrick a mistake that

we need not follow. Although the statute was amended, it occurred before Stites was decided

and thus was within the contemplation of the Supreme Court when it held in 2005 that

Kendrick applied to a sentence imposed in 1985.

        Therefore, pursuant to Stites, with respect to crimes committed before I.C. § 35-50-1-2

was amended in 1994, Kendrick forbade ordering two or more sentences to run consecutively

unless those sentences were imposed at the same time. We now turn to the dispositive

question in this case, which is – did appellate counsel render ineffective assistance of counsel

in failing to challenge Leer’s consecutive sentences in 2005 on the basis of Kendrick? We

conclude that he did, based primarily upon a case even more closely analogous to the present

case than Stites.

        In Nuckles v. State, 691 N.E.2d 211 (Ind. Ct. App. 1998), the defendant was convicted

of attempted murder and theft, and determined to be a habitual offender. The court ordered

that the sentences for those offenses would be served consecutively to the sentence imposed

with respect to an earlier, separate conviction. The issue of consecutive sentencing was not

presented in Nuckles’s direct appeal. Upon post-conviction relief, Nuckles claimed that


consecutively even if the sentences are not imposed at the same time.” I.C. § 35-50-1-2 (c)(2).
                                                    9
appellate counsel rendered ineffective assistance of counsel in failing to present the issue.

The situation in Nuckles resembles the one before us in the present case in every relevant

respect. Nuckles committed his crimes in 1987. He was convicted and sentenced for those

offenses before November 1988. Thus, Nuckles and Leer committed their offenses after

Hutchinson but before Kendrick was decided. Both received sentences that were imposed

consecutively to a sentence imposed in a separate, unrelated cause. Both filed direct appeals

of their convictions after Kendrick, but did not challenge the imposition of consecutive

sentences. Both appealed their consecutive sentences upon post-conviction relief on grounds

that appellate counsel rendered ineffective assistance of counsel in failing to challenge the

imposition of consecutive sentences upon direct appeal. The post-conviction court denied

their petitions in both cases.

       In Nuckles, the court noted that because the issue was waived for failure to present it

upon direct appeal, the appellant could succeed only if he established that appellate counsel’s

failure to present the issue constituted fundamental error. The court held that it did,

explaining:

       At the time Nuckles was sentenced, the imposition of consecutive sentences
       such as the trial court ordered was not contrary to then-existing legal authority.
        Approximately six months after Nuckles’s sentencing, however, our supreme
       court decided a case that arguably could have been interpreted as prohibiting
       the imposition of consecutive sentences except in those instances when the
       court was simultaneously imposing two or more sentences. See Kendrick v.
       State, 529 N.E.2d 1311 (Ind. 1988). The court later clarified that such was
       indeed the meaning of the holding in Kendrick. See Weaver v. State, 664
       N.E.2d 1169 (Ind. 1996). Therefore, as later clarified in Kendrick and Weaver,
       the trial court erred in ordering that the sentences for the instant offenses be
       served consecutively to the sentence imposed for the prior offenses. Appellate
       counsel’s failure to present the issue was of constitutional proportions because
       this court has determined that “fundamental error ... include[s] illegal

                                              10
       sentences in violation of express statutory authority or an erroneous
       interpretation of a penalty provision.” Thompson v. State, 634 N.E.2d 775,
       777 (Ind. Ct. App. 1994) (emphasis in original).

       Because the error in imposing consecutive sentences constituted fundamental
       error not subject to waiver, appellate counsel’s failure to present the issue
       constituted ineffective assistance of counsel.

Nuckles v. State, 691 N.E.2d at 215. We can find no meaningful distinction between the

situation before the court in Nuckles and Leer’s situation in the present case.

       The State nevertheless contends, and the post-conviction court agreed, that even if

Kendrick applies to this case, consecutive sentences were authorized by Buell v. State, 668

N.E.2d 251 (Ind. 1996) and Elswick v. State, 706 N.E.2d 592 (Ind. Ct. App. 1999). In Buell,

the defendant was charged with murdering a woman and her daughter. A trial resulted in a

guilty verdict with respect to the mother, but the jury was unable to reach a verdict with

respect to the daughter. The defendant was retried for murdering the daughter and this trial

resulted in a conviction. Both trials were conducted in the same court and before the same

judge. The court ordered the sentence for the second conviction to be served consecutively

to the sentence for the first conviction. The defendant challenged the imposition of

consecutive sentences, citing Kendrick for the proposition that the trial court was not

authorized to order that the sentences from the second trial be served consecutively to those

imposed in the first trial. The Court rejected that argument, stating:

       Unlike the situation in Kendrick, the judge in this case imposed consecutive
       sentences for closely related offenses that were first charged in the same
       information and all tried in the same court. But for the hung jury and
       subsequent mistrial, the court would have sentenced Buell on all counts
       contemporaneously. We agree with the State that the rule of Kendrick does
       not apply. The court was authorized to impose consecutive sentences.


                                             11
Buell v. State, 668 N.E.2d at 252.

       In Elswick, while in jail and awaiting trial for the murder of one person and the

attempted murder of another, the defendant attempted to arrange the murder of the victim of

the attempted-murder charge. In separate jury trials before the same judge, the defendant

was first convicted on the murder and attempted murder charges, and then convicted of

conspiracy to murder the surviving victim. The trial court sentenced him to fifty years for the

charge related to the attempted arranged murder and ordered that it be served consecutively

to the sentences for murder and attempted murder.           Citing Kendrick, the defendant

challenged the imposition of consecutive sentences. The court rejected this challenge upon

the following rationale.

       Here, the conspiracy conviction was closely related to Elswick’s convictions
       for murder and attempted murder. Had Elswick succeeded in his conspiracy,
       he well might have avoided conviction of murder and attempted murder and
       would have accomplished the previously attempted murder of Kyle. In
       addition, the trial judge imposing the sentences presided over both trials.

       Consequently, we conclude that the facts of this case are more closely aligned
       with those in Buell v. State. In Buell, the supreme court made an exception to
       the strict rule in Kendrick, holding that the trial court has the discretionary
       power to order consecutive sentences for closely related offenses, tried in the
       same court even where the sentences are not imposed contemporaneously.

Elswick v. State, 706 N.E.2d at 594.

       In the present case, the post-conviction court concluded that even if Kendrick applied

in this case, Buell and Elswick “rejected the per se application of the ‘contemporaneous

rule’”, Appellant’s Appendix at 84, especially in cases of “‘closely related offenses, tried in

the same court even where the sentences are not imposed contemporaneously.’” Id. (quoting

Elswick v. State, 706 N.E.2d at 594). The post-conviction court further concluded that Leer’s

                                              12
convictions fit within the exception carved out in Buell and Elswick because: “Both of

[Leer’s] cases were tried in the Elkhart Circuit Court. Although the judges differed, the facts

of the prior conviction were known to both judges.” Appellant’s Appendix at 84. It appears

the post-conviction court determined that the commonalities of Leer’s separate convictions,

i.e., that they emanated from the same court and, “[a]lthough the judges differed, the facts of

the prior conviction were known to both judges”, id., bring this case within the Buell

exception. We believe it takes more than this.

       In the first place, in both Buell and Elswick, the same judge presided over both of the

defendant’s trials. That was not the case here, and it is not enough to cure the deficiency that

the judges apparently “knew the facts of the prior conviction.” Id. Second, and more

importantly, the two cases in question must share more in common than the mere fact that

they were tried in the same court. In both Buell and Elswick, the convictions whose

sentences were imposed consecutively were interconnected, factually speaking. That does

not appear to be the case with respect to Leer’s convictions of murder and attempted murder.

In fact, we find no indication that they share any commonalities other than that Leer was the

perpetrator. If that were enough, not only would Kendrick be eviscerated, but there would be

no practical limitation on the imposition of consecutive sentences in any case.

       We conclude that Kendrick does apply and that the exception to Kendrick created in

Buell and discussed in Elswick does not. Accordingly, we reverse the denial of Leer’s PCR

petition and remand with instructions to grant the petition and to correct his sentence to

reflect that the sentence for murder is to be served concurrently with the earlier sentence for

attempted murder.

                                              13
      Judgment reversed and remanded with instructions.

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




                                         14
