Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEYS FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

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

JONATHAN O. CHENOWETH                            CYNTHIA L. PLOUGHE
Deputy Public Defender                           Deputy Attorney General
Indianapolis, Indiana                            Indianapolis, Indiana

                                                                           May 09 2013, 9:15 am
                              IN THE
                    COURT OF APPEALS OF INDIANA

JAMES Q. BRYANT,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )    No. 49A02-1211-PC-869
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Robert R. Altice, Jr., Judge
                        The Honorable Amy J. Barbar, Magistrate
                           Cause No. 49G02-0802-PC-44915



                                        May 9, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                 Case Summary and Issues

       James Q. Bryant appeals the post-conviction court’s denial of his petition for post-

conviction relief. Bryant raises two issues on appeal: 1) whether he was denied the

effective assistance of his trial counsel; and 2) whether he was denied the effective

assistance of his appellate counsel. Concluding that Bryant was not denied the effective

assistance of trial or appellate counsel, we affirm.

                               Facts and Procedural History

       On February 8, 2008, Ashley Everman was at home in the “apartment she shared

with her sister, cousin, and niece when she heard a knock at the door. . . . Everman

cracked open the door but then, upon seeing several people congregated outside,

attempted to shut it. Everman was knocked down as the door was shoved open.” Bryant

v. State, 911 N.E.2d 735 at *1, No. 49A05-0901-CR-17 (Ind. Ct. App., Aug. 21, 2009),

trans. denied. Bryant, whom Everman had recently met while visiting a mutual friend,

and two other men entered the apartment. Id. The three men proceeded to take money

and other items, threaten the occupants, strike Everman with a gun twice, and then tie up

Everman and another occupant before they left. Id. All three men were apprehended in

the neighborhood shortly thereafter, and identified by Everman. Id.

       On February 25, 2008, Bryant was charged with burglary, carrying a handgun

without a license, pointing a firearm, four counts of criminal confinement, battery,

robbery, intimidation, and two counts of theft. Following a joint trial with the two other

men, Bryant was found guilty of all charges, and was sentenced to an aggregate of thirty-

six years. Bryant then filed a direct appeal, challenging the sufficiency of the evidence


                                              2
underlying his intimidation and burglary convictions. We affirmed his convictions. Id. at

*3.

       Bryant filed a pro se petition for post-conviction relief on April 19, 2010, and then

an amended petition via counsel on June 27, 2012. The post-conviction court conducted

a hearing on the petition on July 18, 2012, and subsequently entered findings of fact and

conclusions of law, and denied Bryant’s petition. This appeal followed. Additional facts

will be supplied as necessary.

                                 Discussion and Decision

                                  I. Standard of Review

       To prevail on appeal from the denial of post-conviction relief, the petitioner must

show that the evidence is without conflict and leads unerringly and unmistakably to a

conclusion opposite that reached by the post-conviction court. Thacker v. State, 715

N.E.2d 1281, 1284 (Ind. Ct. App. 1999), trans. denied.          A post-conviction court’s

findings and judgment will be reversed only upon a showing of clear error, which is error

that leaves us with a definite and firm conviction that a mistake has been made.

Benefield v. State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011). We accept the post-

conviction court’s findings of fact unless they are clearly erroneous, but we do not defer

to the post-conviction court’s conclusions of law. Id. We examine only the probative

evidence and reasonable inferences that support the post-conviction court’s determination

and we do not reweigh the evidence or judge the credibility of the witnesses. Conner v.

State, 711 N.E.2d 1238, 1245 (Ind. 1999), cert. denied, 531 U.S. 829 (2000).

       We review claims of ineffective assistance of counsel under the two prong test set

forth in Strickland v. Washington, 466 U.S. 668 (1984). Bieghler v. State, 690 N.E.2d
                                             3
188, 192 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998). The same standard applies to

claims of ineffective assistance of trial or appellate counsel. Id. To prevail on a claim of

ineffective assistance of counsel, the petitioner must show that his counsel’s performance

was deficient and that the lack of reasonable representation prejudiced him. Randolph v.

State, 802 N.E.2d 1008, 1013 (Ind. Ct. App. 2004), trans. denied. To satisfy the first

prong, the petitioner must show that counsel’s performance was deficient in that

counsel’s representation fell below an objective standard of reasonableness and that

counsel committed errors so serious that petitioner did not have the “counsel” guaranteed

by the Sixth Amendment. Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). To show

prejudice, 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.         Pruitt v. State, 903

N.E.2d 899, 906 (Ind. 2009).

       Under this standard, judicial scrutiny of counsel’s performance must be highly

deferential, and there is a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.       Bieghler, 690 N.E.2d at 192 (citing

Strickland, 466 U.S. at 689). Counsel is afforded considerable discretion in choosing

strategy and tactics and we will accord that decision deference. Randolph, 802 N.E.2d at

1013. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do

not necessarily render representation ineffective. Id. Additionally, ineffective assistance

is very rarely found in cases where a defendant asserts that appellate counsel failed to

raise an issue on direct appeal. Reed, 856 N.E.2d at 1196. One reason for this is that the

decision of what issues to raise is one of the most important strategic decisions to be
                                             4
made by appellate counsel. Id. 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 cannot be explained by any

reasonable strategy, and (2) whether the unraised issues are “clearly stronger” than the

raised issues. Kendall v. State, 886 N.E.2d 48, 53 (Ind. Ct. App. 2008), trans. denied.

       Finally, we note that the two prongs of the Strickland test are separate and

independent inquiries. Therefore, if it is easier to dispose of an ineffectiveness claim on

the ground of lack of sufficient prejudice, we may determine the prejudice prong first

without inquiring into whether counsel’s performance was adequate.           Thacker, 715

N.E.2d at 1284.

                        II. Effective Assistance of Trial Counsel

       Bryant argues that he was denied the effective assistance of his trial counsel when

his counsel failed to object to jury instruction number twenty-four, which read:

               The term “breaking” is defined by law as follows:
               A “breaking” is an illegal and unconsented entry, no matter how
       slight or minimal. There does not have to be rupturing or breaking in order
       to establish that a breaking occurred. It is enough to show that even the
       slightest force was used to gain entry. Even the opening of an unlocked
       door is sufficient to constitute a “breaking.”
               An “entering” occurs when a person puts himself inside a structure.

Brief of Appellee at 9. Bryant’s concern is with the sentence, “[e]ven the opening of an

unlocked door is sufficient to constitute a ‘breaking,’” with its use of the word “is.”

Bryant argues that this sentence gave rise to a mandatory presumption such that, if the

jury found that Bryant had opened the door to Everman’s apartment, then the breaking

element of burglary was met. We disagree.


                                             5
       “A mandatory presumption instructs the jury that it must infer the presumed fact if

the State proves certain predicate facts. A permissive inference suggests to the jury a

possible conclusion to be drawn if the State proves predicate facts, but does not require

the jury to draw that conclusion.” Higgins v. State, 783 N.E.2d 1180, 1185 (Ind. Ct. App.

2003), trans. denied. When we examine jury instructions, we consider the instructions as

a whole and in reference to each other, and will only find reversible error if the

instructions as a whole mislead the jury as to the law in the case. White v. State, 846

N.E.2d 1026, 1032-33 (Ind. Ct. App. 2006), trans. denied.

       Here, Bryant invites us to follow State v. Jones, 805 N.E.2d 469, 473 (Ind. Ct.

App. 2004), opinion aff’d in relevant part, 835 N.E.2d 1002 (Ind. 2005)—in which we

found an instruction regarding the breaking element created a mandatory presumption—

and to ignore Higgins and White—in which we found instructions regarding the breaking

element to create permissive inferences—because the instructions in Higgins and White

were “wrongly held” to be permissive inferences. Brief of Petitioner-Appellant         at 14.

However, both Higgins and White are more on-point for the case at hand, as both of those

cases evaluated instructions in which the word “is” was at issue, and in both cases the

jury was also instructed as to their right to determine the law and the facts, as is true here.

As in Higgins and White, we decline here to hold that “that the mere inclusion of the

word ‘is’ in an instruction creates a mandatory presumption.” White, 846 N.E.2d at

1033; Higgins, 783 N.E.2d at 1186. While we agree that the better practice would have

been to word the instruction with something along the lines of “may be enough” rather

than “is,” we do not believe that, in the context of the jury instructions as a whole, the

wording here created a mandatory presumption.
                                              6
        Bryant’s particular concern here is that, if the instruction created a mandatory

presumption, the jury would not be free to consider the affirmative defense of consent

regarding the breaking element. Bryant admits that in a “run-of-the-mill burglary or

residential entry case—that is, a case in which the defendant denies that he applied any

physical force against the structure—a mandatory presumption . . . is harmless.” Br. of

Pet.-Appellant at 15. In this case though, it appears that evidence was presented at trial

that left open the possibility that Everman initially consented to Bryant’s entry into the

apartment, and thus the timing of her withdrawal of that consent would be relevant to

whether Bryant committed a “breaking.” Further, in this case Bryant admitted that the

other elements of burglary were met, and so the element of breaking was the focus of his

case.

        Given the instructions as a whole, we believe the jury was still free to consider

consent as it related to the element of breaking. Instruction twenty-four itself references

consent when it says that breaking “is an illegal and unconsented entry.” Br. of Appellee

at 9. Bryant argues that the jury could have misunderstood that portion of the instruction

and confused consent of the homeowner with authorization by the State, and thus

interpreted it to mean that the State had to prove lack of consent (rather than having to

disprove consent once it was raised as an affirmative defense). However, Bryant admits

that there is “little practical difference between proving an element and disproving an

affirmative defense”— particularly, we would add, in a lay person’s mind. Br. of Pet.-

Appellant at 21.

        Finally, even if the instruction did create a mandatory presumption, the jury here

was also instructed that it is the judge of the law and the facts; this additional instruction
                                              7
would essentially cure any defect caused by the mandatory presumption. See White, 846

N.E.2d at 1033; Higgins, 783 N.E.2d at 1187; see also Ind. Const. art 1, § 19.

       We conclude that the instruction at issue created only a permissive inference and

not a mandatory presumption. In light of the instructions as a whole, the jury was free to

consider the affirmative defense of consent. Bryant’s trial counsel was not deficient in

failing to object to the instruction, and because any objection to the instructions would

likely have been overruled, Bryant was not prejudiced by counsel’s failure to object. We

are not left with a firm conviction that a mistake has been made by the post-conviction

court in determining that Bryant’s trial counsel provided effective assistance.

                      III. Effective Assistance of Appellate Counsel

       Bryant next argues that he was denied the effective assistance of his appellate

counsel when counsel failed to challenge instruction twenty-four on direct appeal.

Because trial counsel did not object to instruction twenty-four when it was given, it

would have been waived as an issue on appeal unless appellate counsel demonstrated the

existence of fundamental error. Wilson v. State, 931 N.E.2d 914, 919 (Ind. Ct. App.

2010), trans. denied. Fundamental error requires a showing of greater prejudice than

ordinary reversible error. Id. Because, as detailed above, we find that there was no

reversible error in this case, the bar of fundamental error certainly would not have been

met. The decision of what issues to raise is one of the most important strategic decisions

to be made by appellate counsel, and we cannot say that this issue was clearly stronger

than the issues that counsel chose to raise on appeal. We are not left with a firm

conviction that a mistake has been made by the post-conviction court in determining that

Bryant’s appellate counsel provided effective assistance.
                                             8
                                      Conclusion

       Concluding that Bryant was not denied the effective assistance of either trial or

appellate counsel, we affirm the post-conviction court’s denial of his petition for post-

conviction relief.

       Affirmed.

FRIEDLANDER, J., and CRONE, J., concur.




                                           9
