FOR PUBLICATION                                               FILED
                                                           Jul 27 2012, 9:38 am


                                                                   CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

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

J. MICHAEL SAUER                               GEORGE P. SHERMAN
Deputy Public Defender                         Deputy Attorney General
Indianapolis, Indiana                          Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

PHILLIP L. WHITE,                              )
                                               )
       Appellant-Petitioner,                   )
                                               )
              vs.                              )      No. 18A05-1201-PC-1
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Respondent.                    )


                    APPEAL FROM THE DELAWARE CIRCUIT COURT
                        The Honorable Thomas A. Cannon, Jr., Judge
                              Cause No. 18C05-0506-MR-2



                                      July 27, 2012


                               OPINION - FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

      Phillip L. White appeals the post-conviction court’s denial of his petition for post-

conviction relief. White raises a single issue for our review, namely, whether he received

ineffective assistance from his appellate counsel when his appellate counsel did not raise

as an issue on direct appeal whether White’s conviction for felony murder was

unconstitutional under Article I, Section 16 of the Indiana Constitution (“the

Proportionality Clause”). We affirm.

                      FACTS AND PROCEDURAL HISTORY

      The facts underlying White’s convictions were stated by this court in his direct

appeal:

      The following are the facts most favorable to the verdict. During the
      evening of July 31, 2004, White was driving a pickup truck in which Shon
      Starks (“Starks”) and Lionel McElroy (“McElroy”) were passengers. As
      they traveled on Hackley Street in Muncie, two men flagged down the
      truck. One of the men, later identified as Ryan Ylovchan (“Ylovchan”),
      approached the truck and indicated that he “wanted to buy a half.”
      Ylovchan took out his wallet and held it at the windowsill of the driver’s
      side of the truck.

             White made some movements as if he were breaking off a piece of
      crack cocaine. He then grabbed Ylovchan’s wallet and began to drive away
      slowly. Ylovchan held onto the truck, but soon fell off. The truck
      “bounced” and Starks looked back to see Ylovchan lying in the street.
      Starks told White, “you hit that guy.” White did not stop the truck.

             Bystanders who saw the truck tire run over Ylovchan summoned 9-
      1-1 assistance and Ylovchan was transported to Ball Memorial Hospital in
      Muncie. He had severe brain injuries and a skull fracture. Ylovchan
      underwent surgery, but never regained consciousness. On August 8, 2004,
      Ylovchan was taken off life support and died.

             On June 6, 2005, White was charged with Murder[, a felony,] and
      Robbery[, as a Class A felony]. He was brought to trial on April 28,
      2006[,] and convicted as charged. On July 17, 2006, the trial court

                                            2
      sentenced White to fifty-five years imprisonment on the Murder
      conviction. . . .

White v. State, No. 18A02-0607-CR-604, at *1 (Ind. Ct. App. Aug. 2. 2007) (citations to

the record omitted), trans. denied. We also noted that the trial court did not enter

judgment of conviction on the jury’s verdict for robbery, as a Class A felony, out of

double jeopardy concerns. Id. at *1 n.2; see also Richardson v. State, 717 N.E.2d 32, 52

n.45 (Ind. 1999) (“the Indiana Double Jeopardy Clause would be violated under th[e]

essential elements test when, for example, a defendant is convicted and sentenced for

both robbery and felony murder based on the killing of the [victim] in the course of the

robbery.”).

      On direct appeal, White’s appellate counsel argued that White’s confession was

not admissible and that the State failed to present sufficient evidence to support the

felony murder conviction.       After addressing these arguments, we affirmed White’s

conviction.

      On November 5, 2008, White filed his petition for post-conviction relief, which he

later amended. The post-conviction court held an evidentiary hearing on August 16,

2011. On December 7th, the court denied White’s petition. This appeal ensued.

                            DISCUSSION AND DECISION

                                   Standard of Review

      White appeals the post-conviction court’s denial of his petition for post-conviction

relief. As we have explained:

      [The petitioner] bore the burden of establishing the grounds for post-
      conviction relief by a preponderance of the evidence. See Ind. Post-
      Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d 591, 597 (Ind.
      2001). Post-conviction procedures do not afford a petitioner with a super-
                                            3
       appeal, and not all issues are available. Timberlake, 753 N.E.2d at 597.
       Rather, subsequent collateral challenges to convictions must be based on
       grounds enumerated in the post-conviction rules. Id. If an issue was
       known and available, but not raised on direct appeal, it is waived. Id. If it
       was raised on appeal, but decided adversely, it is res judicata. Id.

              In reviewing the judgment of a post-conviction court, appellate
       courts consider only the evidence and reasonable inferences supporting the
       post-conviction court’s judgment. Hall v. State, 849 N.E.2d 466, 468 (Ind.
       2006). The post-conviction court is the sole judge of the evidence and the
       credibility of the witnesses. Id. at 468-69. Because he is now appealing
       from a negative judgment, to the extent his appeal turns on factual issues
       [the petitioner] must convince this court that the evidence as a whole leads
       unerringly and unmistakably to a decision opposite that reached by the
       post-conviction court. See Timberlake, 753 N.E.2d at 597. We will disturb
       the decision only if the evidence is without conflict and leads only to a
       conclusion contrary to the result of the post-conviction court. Id.

Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied. Further: “[a]

defendant in a post-conviction proceeding may allege a claim of fundamental error only

when asserting either (1) deprivation of the Sixth Amendment right to effective assistance

of counsel, or (2) an issue demonstrably unavailable to the petitioner at the time of his or

her trial and direct appeal.” Id. at 325 (quotations and alterations omitted); see also State

v. Hernandez, 910 N.E.2d 213, 216 (Ind. 2009) (same).

       On appeal, White asserts that he received ineffective assistance from his appellate

counsel. A claim of ineffective assistance of counsel must satisfy two components.

Strickland v. Washington, 466 U.S. 668 (1984). First, the defendant must show deficient

performance: representation that fell below an objective standard of reasonableness,

committing errors so serious that the defendant did not have the “counsel” guaranteed by

the Sixth Amendment. Id. at 687-88. Second, the defendant must show prejudice: a

reasonable probability (i.e., a probability sufficient to undermine confidence in the


                                             4
outcome) that, but for counsel’s errors, the result of the proceeding would have been

different. Id. at 694.

       More specifically, White avers that his appellate counsel rendered ineffective

assistance when he did not raise a particular issue on appeal. As our supreme court has

explained:

       To show that counsel was ineffective for failing to raise an issue on appeal
       thus resulting in waiver for collateral review, the defendant must overcome
       the strongest presumption of adequate assistance, and judicial scrutiny is
       highly deferential. To evaluate the performance prong when counsel
       waived issues upon appeal, we apply the following test: (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 the analysis under this test demonstrates deficient performance, then we
       examine whether, the issues which appellate counsel failed to raise[] would
       have been clearly more likely to result in reversal or an order for a new
       trial. Further, we must

              consider the totality of an attorney’s performance to
              determine whether the client received constitutionally
              adequate assistance and should be particularly sensitive to the
              need for separating the wheat from the chaff in appellate
              advocacy, and should not find deficient performance when
              counsel’s choice of some issues over others was reasonable in
              light of the facts of the case and the precedent available to
              counsel when that choice was made.

       Ineffective assistance is very rarely found in cases where a defendant
       asserts that appellate counsel failed to raise an issue on direct appeal. One
       reason for this is that the decision of what issues to raise is one of the most
       important strategic decisions to be made by appellate counsel.

Reed v. State, 856 N.E.2d 1189, 1195-96 (Ind. 2006) (citations, omissions, alterations,

and some quotations omitted).       With those standards in mind, we turn to White’s

argument on appeal.




                                             5
                              Indiana’s Proportionality Clause

          The Proportionality Clause of Indiana’s Constitution mandates that “[a]ll penalties

shall be proportioned to the nature of the offense.” Ind. Const. Art. I, § 16. As we have

stated:

          This court has observed that challenges to the constitutionality of a statute
          begin with a presumption in favor of the statute’s constitutionality and will
          not be overcome absent a clear showing to the contrary. This standard
          arguably is more deferential where the challenge is based on the
          Proportionality Clause, as our supreme court has stated repeatedly that[,]
          because criminal sanctions are a legislative prerogative, separation-of-
          powers principles require a reviewing court to afford substantial deference
          to the sanction the legislature has chosen. Accordingly, we will not disturb
          the legislative determination of the appropriate penalty for criminal
          behavior except upon a showing of clear constitutional infirmity.

Mann v. State, 895 N.E.2d 119, 122 (Ind. Ct. App. 2008) (citations, quotations, and

alterations omitted). That said, this court has held that the Proportionality Clause is

violated “where offenses with identical elements were given different sentences.” Poling

v. State, 853 N.E.2d 1270, 1276-77 (Ind. Ct. App. 2006). However, where the statutory

elements are not identical, there is no violation. See Mann, 895 N.E.2d at 123-24.

          Here, White contends that the elements of his felony murder conviction were

identical to the elements of involuntary manslaughter, as a Class C felony. To prove

felony murder, the State was required to show that White killed another human being

while committing or attempting to commit robbery. I.C. § 35-42-1-1(2). Robbery is a

base-level Class C felony offense, but it can be a Class B or Class A felony in certain

circumstances. I.C. § 35-42-5-1. Here, the State’s charging information for the felony

murder allegation tracked the statutory language for that offense, including the use of the

word “robbery.” Direct Appeal App. at 23. But the State’s charging information for

                                               6
Class A felony robbery specifically described the alleged robbery as the knowing taking

of “a wallet from . . . Ryan Ylovchan, by using force, said act resulting in serious bodily

injury to Ryan Ylovchan . . . .” Id. at 24.

        Involuntary manslaughter, as relevant in this appeal, occurs when “[a] person . . .

kills another human being while committing or attempting to commit: (1) a Class C or

Class D felony that inherently poses a risk of serious bodily injury . . . .” I.C. § 35-42-1-

4(c). White asserts that these elements of involuntary manslaughter are identical to the

elements of felony murder because the charging language only uses the generic term

“robbery,” and robbery is a base-level Class C felony. Thus, White continues, his

appellate counsel should have relied on Poling and sought to have White’s fifty-five year

sentence for felony murder reduced to an appropriate sentence for Class C felony

involuntary manslaughter, which is between two and eight years. See I.C. § 35-50-2-

6(a).

        White misunderstands how a conviction for felony murder works. In Taylor v.

State, 922 N.E.2d 710, 716 (Ind. Ct. App. 2010), trans. denied,1 we explained that,

        to be convicted of felony murder, “it was necessary to instruct the jury on
        the definition of robbery, in that it was necessary for the jury to find that a
        robbery in fact had been perpetrated before it could come to the conclusion
        that a felony murder had been committed.”

(Quoting Brownlow v. State, 484 N.E.2d 560, 562 (Ind. 1985)). Here, the State never

alleged Class C felony robbery, the parties never argued Class C felony robbery, the jury

was not instructed on Class C felony robbery, and the jury did not find White guilty of
        1
           Our supreme court originally granted the State’s petition for transfer of jurisdiction in Taylor,
but, “[a]fter further review, including oral argument, a majority of the Court . . . determined that transfer
of jurisdiction was improvidently granted.” Taylor v. State, 936 N.E.2d 1241 (Ind. 2010). Accordingly,
the court vacated its original order granting transfer and instead denied the transfer petition and
“reinstated [the case] as Court of Appeals precedent.” Id.
                                                     7
Class C felony robbery. The only robbery ever at issue was the Class A felony robbery

alleged by the State as its second count and found by the jury. Indeed, the jury’s verdict

on the Class A felony robbery allegation was an essential predicate to the State’s felony

murder charge. See id. And it was the jury’s verdict on the Class A felony robbery

allegation on which that the trial court declined to enter judgment out of double jeopardy

concerns. See Richardson, 717 N.E.2d at 52 n.45.

       White’s arguments in this appeal notwithstanding, his trial only involved robbery

as a Class A felony. A Class A felony is not an element of involuntary manslaughter.

See I.C. § 35-42-1-4(c). Had his appellate counsel raised this argument under the guise

of Poling, this court would have soundly rejected it. On these facts, felony murder and

involuntary manslaughter are different crimes with different statutory elements and, thus,

the different sentences for these crimes presents no constitutional issue under the

Proportionality Clause. Accordingly, White cannot demonstrate that this issue was either

significant and obvious from the face of the record or “clearly stronger” than the issues

his appellate counsel did raise. See Reed, 856 N.E.2d at 1195-96.

                                        Conclusion

       In sum, White cannot demonstrate that his appellate counsel’s performance was

deficient. Hence, he likewise cannot demonstrate that he received ineffective assistance

from his appellate counsel. We affirm the post-conviction court’s judgment denying

White’s petition for post-conviction relief.

       Affirmed.

KIRSCH, J., and MAY, J., concur.


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