ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                          Gregory F. Zoeller
Public Defender of Indiana                                Attorney General of Indiana

Randy A. Elliott                                          Richard C. Webster
Deputy Public Defender                                    Deputy Attorney General
Indianapolis, Indiana
                                                          Andrew A. Kobe
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



______________________________________________________________________________
                                                                           Aug 28 2013, 9:11 am
                                           In the
                             Indiana Supreme Court
                             _________________________________

                                    No. 49S04-1207-PC-431

JUAN M. GARRETT,
                                                          Appellant (Petitioner below),

                                               v.

STATE OF INDIANA,
                                                       Appellee (Respondent below).
                             _________________________________

                Appeal from the Marion Superior Court, Criminal Division, Room 1
                                  No. 49G01-0706-PC-120521
                           The Honorable Steven J. Rubick, Magistrate
                             The Honorable Kurt M. Eisgruber, Judge
                             _________________________________

      On Petition To Transfer from the Indiana Court of Appeals, No. 49A04-1107-PC-410
                           _________________________________


                                        August 28, 2013


Rucker, Justice.
        We hold that the “actual evidence” test announced in Richardson v. State, 717 N.E.2d 32
(Ind. 1999) is applicable to cases in which there has been an acquittal on one charge and retrial
on another charge after a hung jury. We conclude however that the post-conviction court
properly denied the petitioner’s claim that counsel rendered ineffective assistance in failing to
pursue this issue at trial or on direct appeal.


                                   Facts and Procedural History

                                         Factual Background

        This case arises out of an abduction and sexual assault and resulted in two successive
trials. The underlying facts are recited in the Court of Appeals memorandum decision on direct
appeal as follows:

                        Early in the morning of June 9, 2007, A.W. reported to the
                police that three men forced her into a van, took her to an
                apartment, and forced her to submit to multiple acts of oral sex and
                vaginal intercourse. One of the perpetrators gave her a piece of
                paper with the name “Juan” and a phone number written on it. He
                told her “to call him again if [she] wanted to have a good time
                again.” A.W. showed an officer the location of the apartment
                where she had been raped.
                        Police discovered the phone number and apartment
                belonged to Garrett. On June 25, 2007, Garrett went to the Sex
                Crimes Office and was interviewed by Detective Linda White and
                Sergeant Craig McCartt. Detective White gave Garrett Miranda
                warnings, which Garrett said he understood. She then read him an
                advice of rights form, which he said he understood and signed.
                        Garrett told the officers he had called off work on the
                evening of June 8 because he was sick, but he then went to the
                Embassy Suites for off-track betting. He claimed he returned
                home around 9:00 and went straight to bed. He denied that anyone
                was at his apartment that evening. When confronted with the note,
                Garrett said, “I meet a lot of people on the bus downtown. I have
                no idea from there.” Detective White asked Garrett if he would
                give a buccal swab, but Garrett refused.
                        Garrett’s DNA was later obtained by court order, and his
                DNA matched a sample from A.W.’s rape examination. Detective
                White showed A.W. a photographic array, and A.W. identified
                Garrett as one of the perpetrators.




                                                  2
                        On June 27, 2007, Garrett was charged with Count 1, Class
                 A felony rape (alleging he raped A.W. while armed with a knife);
                 Count 2, Class A felony rape (also alleging he raped A.W. while
                 armed with a knife); Count 3, Class B felony criminal deviate
                 conduct; Count 4, Class B felony criminal confinement (alleging
                 he confined A.W. in an apartment while armed with a knife); and
                 Count 5, Class C felony criminal confinement (alleging he forced
                 A.W. into a vehicle).

Garrett v. State, No. 49A02-0807-CR-609, slip op. at 2-3, 2009 WL 485203, at *1 (Ind. Ct. App.
Feb. 25, 2009) (citations and footnotes omitted), trans. denied.


                                                 First Trial


        Garrett’s case was first tried to a jury on April 14, 2008. In addition to the foregoing
facts, following are additional facts of what occurred at the first trial. During the course of her
testimony, A.W. testified that her clothes were forcefully removed and that all three men forced
her to perform oral sex. When asked “what happened next” A.W. testified as follows:

                 A. The older one made me get up, and he bent me over the bed
                 and stuck his penis in my vagina.

                 Q. Okay. And you said he bent you over the bed. He was behind
                 you?

                 A. Yes.

                 Q. Okay. And he put his penis in your vagina?

                 A. Yes.

Tr. 1 at 51-52.1 A.W. further testified that after the man was done he told her to put her clothes
back on and that she could leave. Id. at 56. However, one of the younger men prevented her
from leaving, pushed her back over the couch and raped her. Id. at 56-57. Thereafter, according
to A.W. “the older man made me have sex with him again.” Id. at 58. The following exchange
then occurred:

1
 Although the transcripts from trials one and two are presented to us consecutively paginated, for clarity
we refer to the transcript from the first trial as “Tr. 1” and the transcript from the second trial as “Tr. 2.”


                                                      3
                Q. Okay. When you said the older man made you have sex with
                you [sic] again, where were you when that happened?

                A. I was on the bed.

                Q. Back where the first one happened?

                A. Yes.

                                 *               *              *

                Q. Okay. After that happened, what did he say?

                A. He told me I could put my clothes back on and leave.

                Q. And did you do it?

                A. I put my clothes on and I got to the door. He wrote his phone
                number down and told me to call him if I wanted to have a good
                time again.

Id. at 58-59. When asked if she saw one of the men in the courtroom who raped her A.W.
identified one of the spectators who appeared to have been exchanging hand signals with the
defendant during the course of trial. See id. at 76-77. After a recess, A.W. identified Garrett as
the older man who raped her. See id. at 80.


        The jury returned verdicts of not guilty on Count 1 (Class A felony rape), Count 3 (Class
B felony criminal deviate conduct), and Count 5 (Class C felony criminal confinement). The
jury was unable to reach a verdict on Count 2 (Class A felony rape) and Count 4 (Class B felony
confinement). The trial court discharged the jury, declared the jury deadlocked on Counts 2 and
4, and scheduled a pretrial hearing for the following week, April 23, 2008. The record is not
altogether clear on what transpired at the pretrial hearing. In any event, retrial on Counts 2 and 4
was scheduled for June 5, 2008. Garrett waived his right to trial by jury, and the case proceeded
to a bench trial.




                                                 4
                                          Second Trial

       Prior to commencement of retrial the following colloquy between the trial court and the
deputy prosecutor occurred:

              The Court:       Okay. We’re on the calendar for a Court trial. The
              trial is not scheduled to begin until 10:00 o’clock a.m. but [Deputy
              Prosecutor], you said you had some preliminary matter you wanted
              the Court to hear?

              [Deputy Prosecutor]: I do, Your Honor. Just to clarify for the
              record before we get started and I call [A.W.] to testify in this
              matter. One of [sic] the Court’s guidance with regard to the direct
              testimony she’s going to be giving today, as the Court’s aware, we
              tried this case to a jury on April 14th of 2008, the jury found Mr.
              Garrett not guilty on [Count] 1 . . . and we are here to retry
              [Count] 2. . . . My question for the Court is with regard to
              [C]ounts 1 and 2 which are both rape as class A felonies. The jury
              found Mr. Garrett not guilty on one count and hung on the other.

              The Court:      Not guilty on one.

              [Deputy Prosecutor]: And hung on the other.

              The Court:      And hung on 2.

              [Deputy Prosecutor]: Right.

              The Court:      So what’s your question?

              [Deputy Prosecutor]: My question is, Your Honor —

              The Court:      What’s the difference between 1 and 2?

              [Deputy Prosecutor]: None. They’re identical. Identical as
              charged and all of these incidents occurred one night. So I wanted
              the Court’s guidance on which incident I should question about.

              The Court:      Whatever incident you alleged constituted [C]ount 2
              ....

              [Deputy Prosecutor]: That’s correct.




                                               5
Tr. 2 at 347-49. Retrial proceeded, and as its first witness the State called A.W. to the stand.
A.W. testified that on the evening of June 8, 2007, she ended up in an apartment with three men
she did not know. Id. at 358. One man was older, and two were younger. Id. at 358-59. After
they entered the apartment, one of the men locked the door. Id. at 359. She did not want to be
there and begged them to let her go because she had a sick child at home and needed to take care
of him. Id. at 361. The men refused, and said they were “going to do things to” her, and she
feared they were going to hurt or kill her. Id. The apartment was a one-room studio containing a
bed and couch. Id. at 359. One of the men pushed her onto the couch, and the two younger men
sat down beside her. Id. at 359-60. The older man sat down on the bed. The men started
drinking and smoking marijuana. She did not want to drink, but they forced her to do so. Id. at
360. After awhile, the men pulled her clothes off. A.W. was forced onto the bed:

              Q. How did you get over to the bed?

              A. I was pulled over to the bed and pushed down on the bed.

              Q. When you were pushed down on the bed, were you on your
              back or on your stomach?

              A. I was on — I believe on my back.

                                  *            *              *

              Q. All right. When you were pushed down onto the mattress, what
              man were you with?

              A. The older one.

              Q. When the older man pushed you down on the mattress, what
              happened?

              A. He stuck his penis inside of me and had sex with me.

              Q. When you say he stuck his penis inside of you, what part of
              you?

              A. In my vagina.

Tr. 2 at 363-64. A.W. asked him to stop, but he did not. While the older man was having sex
with her, A.W. noticed a knife at the end of the bed. Id. at 364-65. When the older man



                                               6
finished, he told her she could get dressed and leave. Id. at 366. However, one of the younger
men prevented her from leaving. Id. at 367. A.W. then testified that she was eventually allowed
to leave “after he [the older man] put his penis in me again.” Id. As A.W. was leaving, the older
man gave her his telephone number, and she also took the knife when he was not paying
attention. Id. at 368. A.W. identified Garrett as the older man who had raped her. Id. at 377.


       A.W. ran to a gas station down the street and called 911. A.W. gave the police the note
and the knife and showed them where the apartment was located. She was then taken to a
hospital for an examination. The nurse testified A.W. “was tearful, upset, she was cooperative
with me, but very uncomfortable, having some pain, rated I believe a 9 out of 10.” Id. at 392.
A.W.’s injuries included a chipped tooth, a hemorrhage in her eye, and bruises on several parts
of her body. Id. at 393-96. Over Garrett’s objection the State also introduced into evidence
Garrett’s statement to police concerning the events allegedly occurring in the late evening and
early morning hours of June 8 and 9, 2007. Id. at 423-25.


       The trial court found Garrett guilty of rape as a Class B felony, because A.W. testified
she had not seen anyone touch the knife. The trial court found Garrett not guilty of criminal
confinement, because A.W. testified one of the other men had prevented her from leaving after
Garrett had sex with her. The trial court sentenced Garrett to fifteen years imprisonment with
five years suspended to probation accompanied by lifetime registration as a sex offender.

                                         Appellate History

       Garrett appealed challenging the admissibility of his statements to the police and the
sufficiency of the evidence. In an unpublished memorandum decision the Court of Appeals
affirmed the judgment of the trial court. See Garrett, No. 49A02-0807-CR-609. Thereafter on
June 16, 2009 Garrett filed a pro se petition for post-conviction relief that was amended by
counsel on January 28, 2010. As amended the petition essentially alleged that Garrett was
denied the effective assistance of trial counsel because, prior to retrial, counsel failed to object
and/or move for a dismissal of the rape charge on federal and state double jeopardy grounds.
The petition also alleged that appellate counsel rendered ineffective assistance for failing to raise
the double jeopardy issues on direct appeal.


                                                 7
       After an evidentiary hearing, the post-conviction court denied Garrett’s petition for relief.
Garrett appealed raising the same claims he raised before the post-conviction court. The Court
of Appeals rejected Garrett’s federal double jeopardy claim. As for Garrett’s state double
jeopardy claim the Court of Appeals concluded “the actual evidence test [a component of this
State’s double jeopardy analysis] does not apply to this case.” Garrett v. State, 965 N.E.2d 115,
122 (Ind. Ct. App. 2012). Instead, applying the doctrine of collateral estoppel the Court of
Appeals affirmed the judgment of the post-conviction court. Having previously granted transfer,
thereby vacating the opinion of the Court of Appeals, see Appellate Rule 58(A), we address
Garrett’s Indiana double jeopardy claim. We summarily affirm the Court of Appeals’ disposition
of Garrett’s federal claim. Additional facts are set forth below.


                     Standard of Review for Post-Conviction Proceedings


       Post-conviction proceedings do not provide criminal defendants with a “super-appeal.”
State v. Hollin, 970 N.E.2d 147, 150 (Ind. 2012). Rather, they provide a narrow remedy to raise
issues that were not known at the time of the original trial or were unavailable on direct appeal.
Id. “Issues available but not raised on direct appeal are waived . . . .” Wilkes v. State, 984
N.E.2d 1236, 1240 (Ind. 2013) (internal quotation omitted). Further, the petitioner in a post-
conviction proceeding bears the burden of establishing grounds for relief by a preponderance of
the evidence. Ind. Post-Conviction Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
“When appealing from the denial of post-conviction relief, the petitioner stands in the position of
one appealing from a negative judgment.” Fisher, 810 N.E.2d at 679. To prevail 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.
Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).


               Standard of Review for Ineffective Assistance of Trial Counsel


       To establish a post-conviction claim alleging violation of the Sixth Amendment right to
effective assistance of counsel, a defendant must establish the two components set forth in
Strickland v. Washington, 466 U.S. 668 (1984). See Williams v. Taylor, 529 U.S. 362, 390



                                                 8
(2000). “First, a defendant must show that counsel’s performance was deficient.” Strickland,
466 U.S. at 687. This requires a showing that counsel’s representation fell below an objective
standard of reasonableness and that counsel made errors so serious that counsel was not
functioning as “counsel” guaranteed to the defendant by the Sixth Amendment. Id. “Second, a
defendant must show that the deficient performance prejudiced the defense.” Id. This requires a
showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, meaning
a trial whose result is reliable. Id. 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.” Id. at 694. A reasonable probability is one that is sufficient to
undermine confidence in the outcome. Id.


             Standard of Review for Ineffective Assistance of Appellate Counsel


       The standard of review for appellate counsel is the same as for trial counsel in that the
defendant must show appellate counsel was deficient in his or her performance and that the
deficiency resulted in prejudice. Bieghler v. State, 690 N.E.2d 188, 192-93 (Ind. 1997). To
satisfy the first prong, 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. McCary v. State, 761 N.E.2d
389, 392 (Ind. 2002). To satisfy the second prong, the defendant must show prejudice: a
reasonable probability (i.e.[,] a probability sufficient to undermine confidence in the outcome)
that, but for counsel’s errors, the result of the proceeding would have been different. Id.


                                            Discussion
                                                  I.
                             Applicability of Actual Evidence Test


       Garrett contends he was twice prosecuted for the same offense and thus his conviction
violates the Double Jeopardy Clause of the Indiana Constitution which provides “[n]o person
shall be put in jeopardy twice for the same offense.” Ind. Const. art. 1, § 14. In Richardson v.
State, 717 N.E.2d 32 (Ind. 1999) this Court concluded that two or more offenses are the same



                                                 9
offense in violation of article 1, section 14 if, with respect to either the statutory elements of the
challenged crimes or the actual evidence used to obtain convictions, the essential elements of one
challenged offense also establish the essential elements of another challenged offense. Under the
actual evidence test, we examine the actual evidence presented at trial in order to determine
whether each challenged offense was established by separate and distinct facts. Id. at 53. To
find a double jeopardy violation under this test, we must conclude that there is “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. The actual evidence test is applied to all the elements of both offenses. “In other
words . . . the Indiana Double Jeopardy Clause is not violated when the evidentiary facts
establishing the essential elements of one offense also establish only one or even several, but not
all, of the essential elements of a second offense.” Spivey v. State, 761 N.E.2d 831, 833 (Ind.
2002).


         Our precedents “instruct that a ‘reasonable possibility’ that the jury used the same facts to
reach two convictions requires substantially more than a logical possibility.” Lee v. State, 892
N.E.2d 1231, 1236 (Ind. 2008) (citing cases).          The reasonable possibility standard “fairly
implements the protections of the Indiana Double Jeopardy Clause and also permits convictions
for multiple offenses committed in a protracted criminal episode when the case is prosecuted in a
manner that insures that multiple guilty verdicts are not based on the same evidentiary facts.”
Richardson, 717 N.E.2d at 53 n.46. The existence of a “‘reasonable possibility’ turns on a
practical assessment of whether the [fact finder] may have latched on to exactly the same facts
for both convictions.” Lee, 892 N.E.2d at 1236. We evaluate the evidence from the jury’s
perspective and may consider the charging information, jury instructions, and arguments of
counsel. Id. at 1234.


         As recounted earlier the Court of Appeals declined to address Garrett’s Richardson
double-jeopardy claim on grounds that the “actual evidence test does not apply to this case.”
Garrett, 965 N.E.2d at 122. In support the court relied on Buggs v. State, 844 N.E.2d 195 (Ind.
Ct. App. 2006), trans. denied. In that case defendant Buggs was charged with murder and felony
murder based on a single death. The jury acquitted Buggs of felony murder but could not reach a



                                                  10
verdict on the murder charge. On retrial for murder Buggs was convicted. He appealed arguing
among other things that his retrial violated Indiana’s prohibition on double jeopardy because the
felony murder and murder charges were the same offense and violated the actual evidence test.
Declining to address this issue, the Court of Appeals noted that neither party cited to any case in
which an Indiana appellate court had applied the actual evidence test in cases where there is an
acquittal on one charge and retrial on another charge after a hung jury. The Court then noted
“[i]n fact, our Supreme Court has made no indication that the actual evidence test is even used to
determine whether two offenses are the same offense when there is an acquittal on one offense
and retrial on another offense. Perhaps this is because there is already a recognized doctrine that
applies to this situation, namely, collateral estoppel. Because of the availability of the doctrine
of collateral estoppel, we choose not to extend the Richardson actual evidence test to this
situation.” Buggs, 844 N.E.2d at 201-02.


       We make two observations. First, this Court has not heretofore been presented with, and
thus has not had the opportunity to address, the precise question facing us today. Indeed as the
Court of Appeals observed most double jeopardy claims and most Indiana reported decisions
arise from defendants challenging two convictions, not retrial after an acquittal. See id. at 201
n.5. This does not mean however that Indiana Double Jeopardy analysis is inapplicable to assess
whether two offenses are the same offense when there is an acquittal on one offense and retrial
on another offense.    Second, we are not persuaded that the availability of the doctrine of
collateral estoppel forecloses applying Indiana Double Jeopardy analysis.         The doctrine of
collateral estoppel (also referred to as issue preclusion) is not the same as double jeopardy, “but
rather is embodied within the protection against double jeopardy.” Coleman v. State, 946 N.E.2d
1160, 1165 (Ind. 2011). “[T]he traditional bar of jeopardy prohibits the prosecution of the crime
itself, whereas collateral estoppel, in a more modest fashion, simply forbids the government from
relitigating certain facts in order to establish the fact of the crime.” Id. (internal quotation
omitted).   Essentially the doctrine of collateral estoppel “precludes the Government from
relitigating any issue that was necessarily decided by a jury’s acquittal in a prior trial.” Id.
(quoting Yeager v. United States, 557 U.S. 110, 119 (2009)).




                                                11
          In this case the Court of Appeals applied the doctrine of collateral estoppel and concluded
it “did not bar relitigation of the second count of rape.” Garrett, 965 N.E.2d at 123. But see
Richardson, 717 N.E.2d at 68 n.23 (Boehm, J., concurring in result) (noting that the doctrine of
collateral estoppel is of limited practical value “particularly if the first result is an acquittal,
[because] the basis of the jury’s ruling is often unascertainable”). Left unresolved is the question
of whether Indiana Double Jeopardy is applicable to the facts before us. We answer this
question in the affirmative.


          First, “[t]he Double Jeopardy clause is assurance that the State will not be allowed to
make repeated attempts to convict an accused for the same offense.” Thompson v. State, 290
N.E.2d 724, 726 (Ind. 1972) (citing U.S. Const. amend. V and XIV; Ind. Const. art. 1, § 14;
Benton v. Md., 395 U.S. 784, 796 (1969); Green v. United States, 355 U.S. 184, 187 (1957))
(emphasis in original). Indeed, as we have recognized, the idea underlying the Double Jeopardy
Clause’s prohibition against multiple prosecutions “is that the State with all its resources and
power should not be allowed to make repeated attempts to convict an individual for an alleged
offense, thereby . . . enhancing the possibility that even though innocent he may be found
guilty.” State v. Monticello Developers, Inc., 527 N.E.2d 1111, 1112 (Ind. 1988) (quoting
Green, 355 U.S. at 187-88). Having had one full opportunity to convict an accused, the State
should not receive a “second bite at the apple.” See Burks v. United States, 437 U.S. 1, 17
(1978).


          Second, “[t]he notion that ‘jeopardy’ is ‘risk’ is the very core of double jeopardy
jurisprudence.” Bryant v. State, 660 N.E.2d 290, 299 (Ind. 1995) (citing Breed v. Jones, 421
U.S. 519, 528 (1975)). Jeopardy is the risk of trial and conviction, not punishment. Id. (citing
Price v. Ga., 398 U.S. 323, 326 (1970)). In other words, double jeopardy protection prohibits
twice subjecting an accused to the risk that he will be convicted of a single crime. Therefore it is
not surprising that we have previously recognized a double jeopardy violation where a defendant
demonstrated “that he might have been acquitted or convicted on the former trial” of the same
crime for which he was convicted at the second trial. Brinkman v. State, 57 Ind. 76, 79 (1877).
Finally, we see no reason why the Richardson actual evidence test would not apply any time
there are multiple verdicts, not simply multiple convictions, on the same facts. In fact, the plain



                                                  12
language of the test refers not just to convictions: “[A] defendant 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.” Richardson, 717 N.E.2d at 53 (emphasis added).


                                                       II.
                                        Double Jeopardy Violation


          In the first trial the State charged Garrett with two separate, but identically worded,
counts of rape. The charges read as follows:

                                                    Count I
                   On or about June 9, 2007, Juan Garrett did knowingly have sexual
                   intercourse with [A.W.], a member of the opposite sex, when
                   [A.W.] was compelled by force or the imminent threat of force,
                   and further said act was committed while armed with a deadly
                   weapon, that is: a knife;
                                               Count II
                   On or about June 9, 2007, Juan Garrett did knowingly have sexual
                   intercourse with [A.W.], a member of the opposite sex, when
                   [A.W.] was compelled by force or the imminent threat of force,
                   and further said act was committed while armed with a deadly
                   weapon, that is: a knife[.]

Appellant’s Direct Appeal App. at 28. At trial, evidence was presented of two separate incidents
of rape, one of which preceded the other. For clarity, we will sometimes refer to the first-in-time
alleged rape as “Rape A” and the second-in-time alleged rape as “Rape B.” Garrett contends
(and the State does not contest) that neither the charging informations nor the parties’ evidence
and argument at trial specifically linked either charged count with a particular rape event, Rape
A or Rape B. In the first trial, the jury acquitted Garrett on Count I but was unable to reach a
unanimous verdict on Count II.2 Garrett was then retried on Count II.




2
    The foreman informed the court that the jury was “virtually split seven to five.” Tr. 1 at 334.


                                                       13
       Garrett contends that because the State never linked the Counts to the individual rape
events in the first trial, it is impossible to know whether the jury’s decision with respect to Count
I acquitted him of Rape A or Rape B. The State counters it is reasonable to infer that Count I
charged Rape A — the first-in-time alleged offense, and Count II charged Rape B — the second-
in-time alleged offense. This is so, according to the State, because (1) both counts were Class A
felonies that occurred in chronological order, (2) this is how counsel for both parties understood
the charges, (3) A.W.’s testimony presented the allegations in that order, and (4) the deputy
prosecutor referred to the alleged rapes in that order in closing argument. We agree with the
State on this point: the record supports the conclusion that the jury found Garret not guilty of
alleged Rape A — the first-in-time offense; but could not reach a unanimous verdict on alleged
Rape B. Thus there was no procedural bar in conducting a retrial on alleged Rape B — the
second-in-time offense. The question remains whether the evidence presented at retrial resulted
in a double jeopardy violation based on the Richardson actual evidence test.


       We pause here to note the record reflects that the evidence of Rape B — the second in-
time alleged offense — was actually more extensive in the first trial than on retrial. The only
evidence presented on retrial of Rape B was A.W.’s testimony that after the older man told her
she could leave, one of the younger men prevented her from leaving; but she was eventually
allowed to leave “after he [the older man] put his penis in me again.” Tr. 2 at 367. This is the
sum total of the evidence presented on retrial concerning Count II — the second-in-time alleged
offense and the very count that all parties agreed was at stake on retrial. In any event even if the
converse were true it would make no difference in this case. That is to say even if all parties
agreed that Garrett was actually acquitted of alleged Rape B, the second-in-time offense, and
thus retrial was confined to alleged Rape A, the first-in-time offense, the fact remains that
essentially the same evidence was presented at both trials.


       Under our traditional formulation, in order to find a double-jeopardy violation pursuant to
the Richardson actual evidence test, we must conclude there is “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.”
Richardson, 717 N.E.2d at 53. As slightly modified, we hold today that a double jeopardy



                                                 14
violation under the Richardson actual evidence test may also rest on our conclusion that there is a
reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential
elements of the offense for which the defendant was acquitted may also have been used to
establish all of the essential elements of the offense for which the defendant was convicted.


        We acknowledge that in a different factual context this modified test may prove
challenging in its application. But here the facts are fairly straightforward. In essence on retrial
the State presented the same evidence of Rape A — the first-in-time rape — on which the State
relied in the first trial and upon which the jury found Garrett not guilty. And given the relative
paucity of evidence on retrial concerning Rape B — the second-in-time rape — we conclude
there is reasonable possibility that the evidentiary facts used by the jury in the first trial to
establish the essential elements of Rape, for which Garrett was acquitted, may also have been
used on retrial to establish all of the essential elements of Rape for which Garrett was convicted.3
We conclude therefore that Garrett was twice prosecuted for the same offense in violation of
article 1, section 14 of the Indiana Constitution.

                                                    III.

                                  Ineffective Assistance of Counsel

        Garrett contends that trial counsel rendered ineffective assistance because prior to retrial
counsel failed to file a motion to dismiss or otherwise object to the rape charge on State double
jeopardy grounds. He also contends appellate counsel rendered ineffective assistance for failing
to raise the double jeopardy issue on direct appeal.

3
  Justice Massa’s separate opinion invokes what is commonly referred to as the “judicial-temperance
presumption,” under which “[w]e generally presume that in a proceeding tried to the bench a court
renders its decision solely on the basis of relevant and probative evidence.” Konopasek v. State, 946
N.E.2d 23, 28 (Ind. 2011) (quoting Coleman v. State, 558 N.E.2d 1059, 1062 (Ind. 1990)). In this case
that presumption has been rebutted because of the ambiguity on the question of whether the State
presented probative evidence that Garrett committed the second-in-time alleged rape. The question under
Richardson is whether there is a “reasonable possibility” that the facts the trial judge relied on to convict
Garrett were the same facts the jury relied on in its acquittal. See Richardson, 717 N.E.2d at 53. If we
were to accept Justice Massa’s position, then that would mean there could never be a Richardson
violation where the second trial after an acquittal is before the bench rather than a jury. In our view this
goes beyond “judicial temperance” and borders on judicial infallibility. It is “reasonab[ly] possible” that
even an experienced trial judge can make a mistake. That is not to say that a mistake was in fact made in
this case; but there is a reasonable possibility that is so. This is all Richardson requires.


                                                     15
       With respect to trial counsel, in order to prevail on a claim of ineffective assistance due to
the failure to object, the defendant must show a reasonable probability that the objection would
have been sustained if made. Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001). Similarly,
the defendant must show a reasonable probability that the motion to dismiss would have been
granted if made. Here, as we earlier declared, there was no procedural bar in conducting a retrial
on the second-in-time alleged rape. The record supported the conclusion that the jury found
Garrett not guilty of alleged Rape A — the first-in-time alleged offense; but could not reach a
unanimous verdict on alleged Rape B — the second-in-time alleged offense. Hence there was
nothing to prevent retrial on this charge. As we have attempted to demonstrate, the double
jeopardy violation occurred as a result of the evidence presented during retrial. Garrett cannot
demonstrate that trial counsel would have prevailed had he objected to retrial or moved to
dismiss.


       As for appellate counsel, ineffective assistance claims “generally fall into three basic
categories: (1) denial of access to an appeal, (2) waiver of issues, and (3) failure to present
issues well.” Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). Here, Garrett’s claim is based
upon the waiver of issues category. 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.” Ben-
Yisrayl v. State, 738 N.E.2d 253, 260-61 (Ind. 2000). 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. Timberlake v. State, 753 N.E.2d 591, 605-06 (Ind.
2001). If the analysis under this test demonstrates deficient performance, then we evaluate the
prejudice prong which requires an examination of 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.” Bieghler, 690 N.E.2d at 194 (quotation omitted).


       Assuming for the sake of argument that Garrett’s unraised double jeopardy claim was
significant and obvious from the face of the record, this issue was not “clearly stronger” than the
issues counsel raised on direct appeal.



                                                16
       On direct appeal pointing to several ambiguities and inconsistencies in A.W.’s testimony,
Garrett challenged the sufficiency of the evidence. He also contended the trial court erred in
admitting into evidence a statement he gave police arguing he had invoked his right to counsel,
and thus the statement was obtained in violation of Miranda. The Court of Appeals rejected both
claims. In his petition for post-conviction relief, with the exception of his double jeopardy claim,
Garrett did not allege there were any other viable issues that appellate counsel could have raised
but did not. With respect to the double jeopardy issue, just three years before Garrett initiated
his direct appeal, the Court of Appeals had rejected an argument that the Richardson actual
evidence test applied in cases where there is an acquittal on one charge and retrial on another
charge. See Buggs, 844 N.E.2d at 201-02. The Court was unequivocal: “[W]e choose not to
extend the Richardson actual evidence test to this situation.” Id. at 202. Not only was Garrett’s
double jeopardy claim not “clearly stronger” than the issues counsel raised on direct appeal, but
also because of then-existing case authority it was “clearly weaker.” Further, this conclusion is
not altered by the fact that today this Court has changed existing law, and modified the
Richardson actual evidence test to make it applicable to instances where there has been an
acquittal on one charge and retrial on another. As we have declared on more than one occasion
“appellate counsel cannot be held ineffective for failing to anticipate or effectuate a change in
existing law.” Reed, 856 N.E.2d at 1197 (citing Fisher, 810 N.E.2d at 679); see also Trueblood
v. State, 715 N.E.2d 1242, 1258 (Ind. 1999). In sum, the post-conviction court did not err in
denying Garrett’s petition for relief.


                                           Conclusion


       Garrett has failed to show that the evidence as a whole leads unerringly and unmistakably
to a conclusion opposite that reached by the post-conviction court. Therefore we affirm the post-
conviction court’s judgment.


Dickson, C.J., and David and Rush, JJ., conur.
Massa, J., concurs in result.




                                                 17
Massa, Justice, concurring in result.


       I agree that, for reasons clearly stated in Part III of the Court’s opinion, the post-
conviction court properly denied Garrett’s ineffectiveness claim; thus, I concur in result. I do
not, however, share my colleagues’ belief that “there is a reasonable possibility that the
evidentiary facts used by the jury in the first trial to establish the essential elements of Rape, for
which Garrett was acquitted, may also have been used on retrial,” and therefore I cannot join the
Court’s conclusion “that Garrett was twice prosecuted for the same offense in violation of Article
1, Section 14 of the Indiana Constitution.” Slip op. at 15.

       As the Court notes, Garrett was retried to the bench, not to a jury. The record is clear
that, in this second trial, the trial court, prosecution, and defense all understood that the two
separate rapes were charged in chronological order and that Garrett was being retried for the
alleged “Rape B” only. Slip op. at 14. This does not mean that the victim had to confine her
testimony in the second trial solely to Rape B, omitting all details of what transpired earlier in
the evening; our jurisprudence does not require such a stilted, redacted and devoid-of-context
presentation. (How, for instance, could she testify she was raped “again” without mentioning the
first rape?) We trust trial judges to separate wheat from chaff, permitting them, for instance, to
render a verdict even after being exposed to inadmissible evidence that would irreparably taint a
lay jury. See Birdsong v. State, 685 N.E.2d 42, 47 (Ind. 1997) (“when a trial is before a bench
and not a jury, we generally presume that the trial judge considers only relevant and probative
evidence in reaching its decision . . . Unless the defendant presents evidence to the contrary, we
presume no prejudice.” (citing Coleman v. State, 558 N.E.2d 1059, 1062 (Ind. 1990))); see also
Misenheimer v. State, 268 Ind. 274, 280, 374 N.E.2d 523, 528 (1978) (“It can be presumed that a
trial judge is not swayed by evidence which is considered prejudicial before a jury . . . [and] that
he disregarded inadmissible evidence.”).

       I am confident that the experienced trial judge in this case performed just such a
threshing here. Although the judge heard a fuller account of the victim’s terrible ordeal, I
presume—as our precedent requires I presume, where, as here, there is no evidence to the
contrary—that she deliberated only on the evidence supporting Rape B. Thus, the defendant was
not “put in jeopardy twice for the same offense” as we have interpreted that language from our
Indiana Constitution in Richardson and its evolving progeny.




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