MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                             Nov 22 2016, 9:22 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
India Lane                                              Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Michael Gene Worden
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brent D. Mullis,                                        November 22, 2016
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        03A04-1602-PC-203
        v.                                              Appeal from the Bartholomew
                                                        Circuit Court
State of Indiana,                                       The Honorable Stephen R.
Appellee-Respondent.                                    Heimann, Judge
                                                        Trial Court Cause No.
                                                        03C01-0810-PC-2393



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A04-1602-PC-203 | November 22, 2016   Page 1 of 21
[1]   Brent D. Mullis appeals the denial of his petition for post-conviction relief.

      Mullis raises one issue which we revise and restate as whether the post-

      conviction court erred in denying his petition for relief. We affirm.


                                      Facts and Procedural History

[2]   The relevant facts as discussed in Mullis’s direct appeal follow:


              On June 2, 2006, Columbus police investigated a burglary at the
              La Mode Hair Salon. A rock had been thrown through a
              window to gain entry, and several items had been removed,
              including money. The police found a shoe impression on a piece
              of glass, which they preserved for comparison.


              On June 5, 2006, Randy Hicks saw two men in front of the Yee
              Kee Chinese Restaurant in Columbus. Hicks observed one of the
              men throw something through one of the restaurant’s windows,
              and both men entered the Yee Kee through the broken window.
              Hicks called 9-1-1, and Columbus police quickly responded.
              Mullis attempted to flee, but a K-9 unit apprehended him nearby.
              Peter Lankey was also apprehended in the vicinity. Hicks
              identified both men as the men he saw at the restaurant. Police
              also found a glove near the restaurant that matched a glove
              discovered close to where Mullis was apprehended. The owner
              of the restaurant found that various items had been disturbed, but
              that nothing of value had been taken.


              The police confiscated Mullis’s shoes upon his arrest. The glass
              fragments found in the soles of the shoes were similar to the glass
              fragments collected from the broken window at the La Mode
              Salon and those collected from the Yee Kee Restaurant. Also,
              the sole of Mullis’s left shoe matched the shoe impression on the
              La Mode Salon glass.



      Court of Appeals of Indiana | Memorandum Decision 03A04-1602-PC-203 | November 22, 2016   Page 2 of 21
      Mullis v. State, No. 03A01-0802-CR-41, slip op. at 2-3 (Ind. Ct. App. July 29,

      2008).


[3]   On June 8, 2006, the State charged Mullis with two counts of burglary as class

      C felonies. Id. at 3. On June 12, 2006, the court appointed Attorney Aaron

      Edwards as Mullis’s counsel. On September 27, 2006, the State alleged that

      Mullis was an habitual offender. After the court granted multiple continuances

      filed by Attorney Edwards and Mullis, the court granted Attorney Edwards’s

      motion to withdraw on January 2, 2007, and appointed Attorney Daniel

      Schuetz as Mullis’s counsel. On March 30, 2007, Attorney Schuetz filed a

      motion to continue, which the court subsequently granted. On April 3, 2007,

      Attorney David Nowak filed an appearance for Mullis, and the court later

      granted Attorney Schuetz’s motion to withdraw. On June 11, 2007, Attorney

      Nowak filed a motion to continue, which the court later granted.


[4]   On October 15, 2007, the court held a hearing at which Mullis and Attorney

      Nowak were present, and the court informed Mullis that trial was set for

      October 30, 2007. On October 30, 2007, a jury trial began and Mullis’s trial

      counsel was present, but Mullis was not. Id. at 4. Lankey, who had pled guilty

      to the burglary of the Yee Kee Restaurant, testified that he and Mullis had

      committed the burglary together. Id. at 5. On October 31, 2007, the jury found

      Mullis guilty as charged and found him to be an habitual offender. Id. The

      court entered judgment of conviction and issued a warrant for Mullis’s arrest.

      Id. On November 19, 2007, Mullis was served with the warrant. Id. That same

      day, his trial counsel filed a motion to withdraw his appearance on the grounds

      Court of Appeals of Indiana | Memorandum Decision 03A04-1602-PC-203 | November 22, 2016   Page 3 of 21
      that Mullis had advised him by telephone that Mullis no longer desired his

      representation, that Mullis did not want him to appear at any future hearings,

      and that he did not want him to visit him in jail. Id. Mullis also sent the trial

      court a letter indicating that he was terminating his trial counsel’s

      representation. Id.


[5]   On December 12, 2007, the court held a sentencing hearing, determined that

      Mullis knowingly and voluntarily waived his right to counsel, and granted

      defense counsel’s motion to withdraw his appearance. Id. at 6. The court

      sentenced Mullis to eight years for each burglary conviction, to be served

      consecutively, and added twelve years for the habitual offender finding, for an

      aggregate sentence of twenty-eight years. Id. at 7.


[6]   On appeal, Mullis argued that the trial court abused its discretion in holding a

      trial in his absence and that the court improperly sentenced him. Id. at 2. We

      affirmed on the issues raised by Mullis.1 Id.


[7]   On October 14, 2008, Mullis filed a petition for post-conviction relief. On

      February 7, 2014, he filed an amendment to his petition and alleged that he




      1
        The State raised the issue of whether the habitual offender enhancement was attached to a specific
      underlying offense, and we remanded for the trial court to attach the habitual offender enhancement to one of
      the burglary convictions. Mullis, slip op. at 2, 13.

      Court of Appeals of Indiana | Memorandum Decision 03A04-1602-PC-203 | November 22, 2016         Page 4 of 21
      received ineffective assistance of counsel in part because counsel failed to move

      the court for severance of the two separately filed burglary counts.2


[8]   On November 5, 2015, the court held an evidentiary hearing. Attorney Nowak

      testified that he did not file a motion to sever the two burglaries because he did

      not think the motion would be granted and he did not want to give the State

      “another bite of the apple, so to speak . . . .” Post-Conviction Transcript at 12.

      When asked whether he thought that the jury would just “leapfrog to say, well,

      if they committed this one with this amount of evidence, then it only stands to

      reason that they would have committed the other one,” Attorney Nowak

      answered that “there was a lot more evidence” and that “yes, that was all

      considered.” Id. at 14. Attorney Nowak also testified that he felt that “with

      Mr. Mullis here and presenting him as a witness, allowing him to tell his story,

      that I could still poke holes in each . . . in the evidence from each case that . . .

      and that ability or the prospect of proceeding forward that way, posed less risk

      to him as opposed to doing it twice and in front of two different juries.” Id. at

      14-15.


[9]   Attorney Nowak testified that he did not recall if he discussed the possibility of

      severing the charges with Mullis but was inclined to say that he did not.

      Attorney Nowak also testified that “I never discussed that alternative with him




      2
        Mullis also argued that Attorney Nowak failed to move for a directed verdict as to Count II, which related
      to the La Mode Beauty Shop, on the grounds that the State presented insufficient evidence to support a
      conviction on that count. Mullis does not challenge the post-conviction court’s denial of his petition as to
      this issue.

      Court of Appeals of Indiana | Memorandum Decision 03A04-1602-PC-203 | November 22, 2016          Page 5 of 21
       simply because by the time I had all the facts to make a determination on that

       issue . . . [h]e was never around to further discuss it.” Id. at 17. When asked

       why he did not ask for a continuance and discuss the issue of severance with

       Mullis, Attorney Nowak testified that he looked at the case summaries, that it

       would be difficult to obtain a continuance, and that informing the trial court

       that Mullis failed to maintain contact with him could result in the trial court

       revoking his bond or taking other actions that would be detrimental to Mullis.


[10]   On cross-examination, Attorney Nowak testified that the offenses involved

       overlapping evidence and that the jury was going “to get the implication that

       something else happened that allowed the police to lay their hands on the

       shoes.” Id. at 28-29. During cross-examination, the following exchange

       occurred:

               Q. But you primarily felt that it was just because of facing the
               Habitual Offender on two separate incidences, that was your
               strategic reason as to why you did not seek severance primarily?


               A. That and just, even without the Habitual, on two different
               cases. Once again, I thought I had a better shot at beating both
               cases in one trial as opposed to the mistake of . . . the saying two
               shots at him on separate trial.


       Id. at 29. Attorney Nowak also testified that “if it had been severed, he would

       have been subject to the possibility in each case of a conviction on” the habitual




       Court of Appeals of Indiana | Memorandum Decision 03A04-1602-PC-203 | November 22, 2016   Page 6 of 21
count.3 Id. at 19. During redirect examination of Attorney Nowak, the

following exchange occurred:

           A. Well, that . . . I don’t understand why you would want to go
           there. If we’re going to sever these cases, the whole point of
           severing them . . . [i]s so the jury gets no . . . has no link to the
           thought that he was involved in another crime.


           Q. Right.


           A. The . . . what you’re asking me to do is to suggest to a jury
           that he was at least at the presence or at the scene of another
           crime. That’s how he got the glass in his shoes. So, that line of
           questioning to me, totally defeats the purpose of the severance to
           start with because I got to say, you know, what if my client was
           just walking by this other crime scene. That’s what I’m seeking
           to avoid in having it severed. It’s better to attack both cases as a
           whole and be honest and straightforward with the jury and make
           your arguments, which quite frankly, I thought we did pretty well
           in his absence.


Id. at 37.




3
    The following exchange occurred:

           [Attorney Nowak]: . . . [A]dditional charges would have been filed and then if it had been
           severed, he would have been subject to the possibility in each case of a conviction on the
           underlying charge . . .
           Q. habitual count. . .
           A. The habitual count.

Post-Conviction Transcript at 19.

Court of Appeals of Indiana | Memorandum Decision 03A04-1602-PC-203 | November 22, 2016           Page 7 of 21
[11]   On December 31, 2015, the court denied Mullis’s petition. Specifically, the

       court’s order states:


               Mullis asserts that trial counsel was ineffective in that “Counsel
               failed to move the court for severance of the two separately filed
               burglary counts.” None of the three attorneys which represented
               him prior to or at trial requested that the counts be severed. At
               the PCR hearing, trial counsel David Nowak testified that it was
               a strategic move not to attempt to separate the two burglary
               counts. This was due in part to the fact that the State would have
               two bites at the apple to have Mullis convicted and with the
               Habitual hanging over his head, Mullis would be more exposed.
               The LaMode burglary occurred a couple of days prior to the Yee
               Kee burglary. Mullis was apprehended fleeing from the Yee Kee
               burglary and a codefendant testified against Mullis. Mullis’
               shoes were taken from him after he was apprehended fleeing after
               the Yee Kee burglary. Nowak noted in his testimony that the
               shoes confiscated after Yee Kee tied him to the LaMode burglary
               and so the two intertwined. The bottom of Mullis’ tennis shoes
               contained glass which had been broken at LaMode and his
               shoeprint was found on a large piece of glass inside of LaMode.


               [Mullis’s post-conviction counsel] argues that Mullis could have
               easily explained in testimony that he picked up that glass in his
               shoes by having walked on the sidewalk by LaMode after the
               burglary. There are a number of problems with this argument.
               First and foremost, [Mullis’s post-conviction counsel] has not
               offered any evidence that Mullis has ever indicated that Mullis
               had walked by the LaMode salon after the burglary where he
               could have picked up the glass. Therefore, this argument is pure
               speculation. Mr. Mullis has not provided an affidavit or
               testimony that this is how he picked up glass from LaMode in his
               shoe. Recall that he did not appear at trial to testify at all.
               Second, the testimony by Detective Jason Maddix was that
               access to LaMode was gained by someone having thrown a large
               landscape stone through the glass window. Trial Transcript p.
       Court of Appeals of Indiana | Memorandum Decision 03A04-1602-PC-203 | November 22, 2016   Page 8 of 21
        71. The stone was found inside of the store, so it would have
        been thrown from outside to the inside. Maddix also testified
        that there was glass inside the hair salon, but did not testify that
        there was glass out on the sidewalk. In fact, in reviewing the
        photographic evidence, it shows how improbable it would have
        been for someone to have walked on the sidewalk outside of
        LaMode and picked up glass as a result of the rock having been
        thrown into LaMode. In State’s Exhibit 8, one can see that the
        entrance to LaMode has an alcove with the entrance door set
        back in and away from the sidewalk. In State’s Exhibit 7, it is
        clear that the plate glass window which was broken was one of
        the windows in the alcove, not a plate glass window out at the
        sidewalk.


        Just as Mullis’ counsel has speculated that Mullis may have been
        able to have testified that he picked up the LaMode glass by
        having walked past the hair salon sometime after the burglary,
        one could also speculate that the owner of the hair salon (who
        was called to the scene that night, [Trial Transcript p. 34.]) or a
        police officer may have testified that they had swept up any glass
        that was outside. Mullis has a greater burden to bear in this PCR
        petition than to try to have courts speculate as to what Mr. Mullis
        may have testified to had he come to trial and testified.


        Next, as it relates to this potential explanation by Mullis picking
        up glass in his shoe by walking down the sidewalk outside of La
        Mode after the burglary, this would not have explained how his
        shoe print was on a large broken piece of glass found inside of
        LaMode by the police during their investigation. This shoe print
        found inside LaMode was positively identified by an Indiana
        State Police technician as having come from Mullis’ shoe. (Trial
        Transcript p. 253.)


        Finally, while Nowak did not specifically note this as a reason for
        not severing the two counts as a strategic measure, he did testify
        that the trial was years ago and he did not have a specific
Court of Appeals of Indiana | Memorandum Decision 03A04-1602-PC-203 | November 22, 2016   Page 9 of 21
               recollection of all of its details. He did not review the transcript
               in preparation for his testimony at the PCR hearing. The Court
               has reviewed the trial transcript for this Order. In reviewing it, it
               appears that the best chance that Mullis had of being acquitted of
               the Yee Kee crime was as a result of Nowak’s cross-examination
               of Peter Lankey. Lankey had pled guilty to burglarizing the Yee
               Kee Restaurant with Mullis on June 5, 2006. Nowak cross-
               examined Lankey extensively about the plea agreement which
               Lankey had reached in exchange for his agreeing to testify on
               behalf of the State and against Mullis. This harmed Lankey’s
               credibility. That harmed credibility was the only matter during
               the trial which was beneficial to Mullis. It may well have also
               assisted Mullis as it relates to the LaMode burglary had Mullis
               appeared at court and testified.


               Mullis has failed to show that his trial counsel was ineffective for
               not requesting severance of the two burglary counts.


       Appellant’s Appendix at 52-54.


                                                   Discussion

[12]   The purpose of a petition for post-conviction relief is to raise issues unknown or

       unavailable to a defendant at the time of the original trial and appeal. Reed v.

       State, 856 N.E.2d 1189, 1194 (Ind. 2006). A post-conviction petition is not a

       substitute for an appeal. Id. Further, post-conviction proceedings do not afford

       a petitioner a “super-appeal.” Id. The post-conviction rules contemplate a

       narrow remedy for subsequent collateral challenges to convictions. Id. If an

       issue was known and available but not raised on appeal, it is waived. Id.


[13]   We also note the general standard under which we review a post-conviction

       court’s denial of a petition for post-conviction relief. The petitioner in a post-
       Court of Appeals of Indiana | Memorandum Decision 03A04-1602-PC-203 | November 22, 2016   Page 10 of 21
       conviction proceeding bears the burden of establishing grounds for relief by a

       preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004);

       Ind. Post-Conviction Rule 1(5). 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. On review, we will not reverse

       the judgment unless the evidence as a whole unerringly and unmistakably leads

       to a conclusion opposite that reached by the post-conviction court. Id. Further,

       the post-conviction court in this case entered findings of fact and conclusions

       thereon in accordance with Indiana Post-Conviction Rule 1(6). “A post-

       conviction court’s findings and judgment will be reversed only upon a showing

       of clear error – that which leaves us with a definite and firm conviction that a

       mistake has been made.” Id. In this review, we accept findings of fact unless

       clearly erroneous, but we accord no deference to conclusions of law. Id. The

       post-conviction court is the sole judge of the weight of the evidence and the

       credibility of witnesses. Id.


[14]   Generally, to prevail on a claim of ineffective assistance of counsel a petitioner

       must demonstrate both that his counsel’s performance was deficient and that

       the petitioner was prejudiced by the deficient performance. French v. State, 778

       N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104

       S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls

       below an objective standard of reasonableness based on prevailing professional

       norms. Id. To meet the appropriate test for prejudice, the petitioner must show

       that there is a reasonable probability that, but for counsel’s unprofessional

       Court of Appeals of Indiana | Memorandum Decision 03A04-1602-PC-203 | November 22, 2016   Page 11 of 21
       errors, the result of the proceeding would have been different. Id. A reasonable

       probability is a probability sufficient to undermine confidence in the outcome.

       Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong

       will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective

       assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.


[15]   When considering a claim of ineffective assistance of counsel, a “strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment.”

       Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance

       is presumed effective, and a defendant must offer strong and convincing

       evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73

       (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will

       not support a claim of ineffective assistance of counsel. Clark v. State, 668

       N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.

       Ct. 1438 (1997).


[16]   Mullis argues that Attorney Nowak was ineffective because Mullis was entitled

       to the severance of the charges as a matter of right as they were joined for trial

       solely on the ground that they were of the same or similar character, and that

       his trial counsel failed to give him the option of severance. He asserts that

       Attorney Nowak’s reasons for failing to request severance were deficient, that

       the fact that a rock was used to break the windows in both crimes was not

       enough to prove a scheme or plan, and that the glass that matched Count II

       related to the hair salon would have been inadmissible because it was evidence

       Court of Appeals of Indiana | Memorandum Decision 03A04-1602-PC-203 | November 22, 2016   Page 12 of 21
       of an alleged crime used solely for the purposes of proving a weaker case with

       no substantial evidence. He asserts that there was no independent

       determination for each charge because the State used evidence from each to

       prove the other. Mullis relies on Maymon v. State, 870 N.E.2d 523 (Ind. Ct.

       App. 2007), modified on reh’g on other grounds, 875 N.E.2d 375, trans. denied, and

       Wilkerson v. State, 728 N.E.2d 239 (Ind. Ct. App. 2000), reh’g denied. He also

       argues that his trial counsel should have been aware that severance would have

       been a better outcome for sentencing because Mullis would have had to receive

       a concurrent sentence which would have been a total of twenty years instead of

       twenty-eight years.


[17]   The State argues that Mullis was not entitled to severance of the two charges as

       a matter of right because the two burglaries were committed within three days

       of one another, both were committed against businesses in Columbus early in

       the morning, and both involved throwing a landscape rock through the window

       of the front door. The State argues that Mullis’s reliance on Maymon and

       Wilkerson is misplaced.


[18]   Ind. Code § 35-34-1-9 governs joinder of offenses and provides:

               (a) Two (2) or more offenses may be joined in the same
               indictment or information, with each offense stated in a separate
               count, when the offenses:


                       (1) are of the same or similar character, even if not part of
                       a single scheme or plan; or



       Court of Appeals of Indiana | Memorandum Decision 03A04-1602-PC-203 | November 22, 2016   Page 13 of 21
                       (2) are based on the same conduct or on a series of acts
                       connected together or constituting parts of a single scheme
                       or plan.


[19]   Ind. Code § 35-34-1-11 governs severance of offenses and provides:


               (a) Whenever two (2) or more offenses have been joined for trial
               in the same indictment or information solely on the ground that
               they are of the same or similar character, the defendant shall
               have a right to a severance of the offenses. In all other cases the
               court, upon motion of the defendant or the prosecutor, shall
               grant a severance of offenses whenever the court determines that
               severance is appropriate to promote a fair determination of the
               defendant’s guilt or innocence of each offense considering:


                       (1) the number of offenses charged;


                       (2) the complexity of the evidence to be offered; and


                       (3) whether the trier of fact will be able to distinguish the
                       evidence and apply the law intelligently as to each offense.


[20]   The right to severance is automatic where the offenses are joined for a trial in

       the same indictment or information solely upon the ground that they are of the

       same or similar character. Maymon, 870 N.E.2d at 528. If, however, the

       offenses are joined as being part of a single scheme or plan, it is within the trial

       court’s discretion to grant a severance when it is appropriate to promote a fair

       determination of the defendant’s guilt or innocence of each offense. Id.


[21]   In Maymon, the defendant was charged with committing four burglaries with

       four separate victims over a span of almost three months. Id. The first charged

       Court of Appeals of Indiana | Memorandum Decision 03A04-1602-PC-203 | November 22, 2016   Page 14 of 21
       burglary was achieved by chiseling and breaking the locked back door, the

       second charged burglary occurred eleven days later and the defendant did not

       enter the home when the victim confronted him as he approached the front

       door, the third charged burglary occurred over two months later and involved a

       man knocking on the door of the home and then entering when no one was

       home, and the fourth charged burglary occurred two days later when Maymon

       attempted to enter the home through an unlocked door but was confronted by

       the homeowner. Id. We held that the facts of the charges did not demonstrate

       that Maymon committed a series of connected acts or that the incidents were

       part of a single scheme or plan. Id. Rather, Maymon was charged with

       committing four burglaries with four separate victims over a span of almost

       three months. Id. We agreed with the defendant’s argument that if a severance

       had been requested, the evidence of the burglaries where thefts occurred would

       not have been admissible in his trials for the burglaries where thefts did not

       occur. Id. (citing Wickizer v. State, 626 N.E.2d 795 (Ind. 1993)).


[22]   In Wilkerson, the two charged crimes were sex crimes that occurred in

       Anderson, Indiana, three weeks apart at different times of the day, at different

       locations, to different victims. 728 N.E.2d at 247. Different weapons were

       used and one victim was robbed while the other was not. Id. The assault on

       the first victim occurred at 1:00 a.m. when the victim awoke to find a man

       straddling her with scissors at her throat. Id. The man had entered her

       apartment through a window and was wearing nothing except a shirt covering

       his face. Id. He forced her to submit to oral sex followed by sexual intercourse


       Court of Appeals of Indiana | Memorandum Decision 03A04-1602-PC-203 | November 22, 2016   Page 15 of 21
       and then demanded money and emptied her purse. Id. The victim was unable

       to identify her attacker. Id. The second assault occurred on a different victim

       seventeen days later when a man broke in through a window, grabbed her, and

       forced her to submit to intercourse and oral sex. Id. During the attack,

       Wilkerson was dressed and held a switchblade to her neck. Id. The second

       victim had seen Wilkerson on two occasions prior to the attack, and on one

       occasion he offered her $100 to have intercourse. Id. The second victim

       identified Wilkerson as the man who raped her. Id.


[23]   We held that charges may be sufficiently connected as a single scheme or plan

       to justify joinder if “the State can establish that: they are connected by a

       distinctive nature; a common modus operandi linked the crimes; and that the

       same motive induced the criminal behavior.” Id. at 246. We observed that

       modus operandi means literally “method of working” and refers to a pattern of

       criminal behavior so distinctive that separate crimes may be recognized as the

       work of the same wrongdoer. Id. We also observed:


               Mere repetition of similar crimes does not by itself warrant
               admission of the evidence of those crimes under the modus
               operandi rule. In order for the modus operandi rule to serve its
               intended purpose, the inquiry must be, “Are these crimes so
               strikingly similar that one can say with reasonable certainty that
               one and the same person committed them?” Not only must the
               methodology of the two crimes be strikingly similar, but the
               method must be unique in ways which attribute the crimes to one
               person. Given the inherent similarities in all sex crimes, the
               common use of disguises, and the frequent late night or early
               morning timing of residential intrusions, we can not [sic] say that
               these attacks reveal a distinctive modus operandi.

       Court of Appeals of Indiana | Memorandum Decision 03A04-1602-PC-203 | November 22, 2016   Page 16 of 21
       Id. at 246-247 (quoting Penley v. State, 506 N.E.2d 806, 810 (Ind. 1987)).


[24]   We held that although both crimes were sexual assaults that occurred in

       Anderson by a perpetrator gaining entry to the victim’s home through a

       window late at night, the crimes were not so strikingly similar as to say that

       they were part of a “single scheme or plan.” Id. at 247. Accordingly, we held

       that if Wilkerson had moved to sever the charges, the trial court would have

       lacked discretion to deny such a motion. Id. With respect to prejudice, we held

       that even if Wilkerson had been tried separately, it could not be said that there

       would have been insufficient evidence to support his conviction. Id. at 248. We

       also held that had the charges been tried separately the trial court could not

       have ordered the sentences to run consecutively on the basis of the version of

       Ind. Code § 35-50-1-2 in effect at the relevant time. Id. We also observed that

       the direct testimony of Wilkerson’s counsel was that he recalled no strategy

       reason for not seeking severance. Id. at 249. We concluded that Wilkerson

       received ineffective assistance of counsel as a result of his counsel’s failure to

       move for severance. Id.


[25]   Unlike in Maymon, in which the court did not specify whether trial counsel

       testified regarding a possible strategy, and Wilkerson, in which trial counsel

       recalled no strategy reason for not seeking severance, Mullis’s trial counsel,

       Attorney Nowak, testified regarding his strategic reasons for not filing a motion

       to sever. We also note that Attorney Nowak testified that he never discussed

       the option of filing a motion to sever “because by the time I had all the facts to

       make a determination on that issue . . . [Mullis] was never around to further

       Court of Appeals of Indiana | Memorandum Decision 03A04-1602-PC-203 | November 22, 2016   Page 17 of 21
       discuss it.” Post-Conviction Transcript at 17. Further, when asked why he did

       not ask for a continuance and discuss the issue of severance with Mullis, he

       testified that he looked at the case summaries, determined that it would be

       difficult to obtain a continuance, and that informing the trial court that Mullis

       failed to maintain contact with him could result in the trial court revoking his

       bond or taking other actions that would be detrimental to Mullis.


[26]   Even if we assume that trial counsel’s failure to seek severance constituted

       deficient performance, we cannot say that Mullis has established that he was

       prejudiced. In contrast to Maymon, Mullis’s intent to commit a felony in the

       Yee Kee restaurant was readily established. Hicks testified that in the early

       morning hours of June 5, 2006, he observed two men dressed in black with

       black gloves, one of the men took an object and “just whip[ped] it through this

       window,” the two men entered the restaurant, exited, looked at him, and they

       then just jogged and “they hit that corner and I mean they were off at a dead

       run.” Trial Transcript at 172, 175. Columbus Police Officer John Luttrell

       testified that he responded to the report of the break-in at the restaurant,

       observed Mullis hiding behind a shrub, ordered him to stop, deployed his dog

       when Mullis began running, and discovered a dark brown canvas type glove on

       the ground where Mullis was taken into custody. Within a few minutes of

       Hicks making the 911 call, the police had arrested Mullis, and Hicks identified

       him as the person he observed entering and exiting the restaurant. Peter

       Lankey testified that he pled guilty to burglary related to the events that

       occurred at the Yee Kee Restaurant, that he knew Mullis, that he and Mullis


       Court of Appeals of Indiana | Memorandum Decision 03A04-1602-PC-203 | November 22, 2016   Page 18 of 21
       burglarized the restaurant looking for money, and that they became scared and

       began running when they observed a car. Mullis’s intent under the charge

       related to the restaurant was not established solely through the evidence

       admitted to establish his conviction for the burglary of the hair salon. As to the

       latter, the record reveals that a rock had been thrown through a window to gain

       entry, several items had been removed, including money, and a forensic

       scientist testified that glass fragments from Mullis’s shoes were similar to the

       optical and other characteristics of the glass standard recovered from the hair

       salon. The forensic scientist also testified that it was an uncommon type of

       glass, and, as pointed out by the post-conviction court, Mullis’s shoe print was

       found on glass inside the hair salon. Under the circumstances, we cannot say

       that Mullis has established that he was prejudiced. See Clark v. State, 695

       N.E.2d 999, 1003-1004 (Ind. Ct. App. 1998) (declining the defendant’s

       invitation to reverse his conviction for sexual misconduct with a minor on the

       basis of ineffective assistance of counsel for failure to file a pre-trial motion to

       sever counts of child molesting and sexual misconduct with a minor where the

       evidence on the sexual misconduct with a minor count was substantial), reh’g

       denied, trans. denied.


[27]   To the extent Mullis asserts that severance would have resulted in concurrent

       sentences on the two underlying charges, we disagree. In Wilkerson, to which

       Mullis cites, the court held that Ind. Code § 35-50-1-2 had been interpreted to

       mean that a trial court has authority to impose consecutive sentences only when

       it is contemporaneously imposing two or more sentences. 728 N.E.2d at 248


       Court of Appeals of Indiana | Memorandum Decision 03A04-1602-PC-203 | November 22, 2016   Page 19 of 21
(citing Kendrick v. State, 529 N.E.2d 1311, 1312 (Ind. 1988); Seay v. State, 550

N.E.2d 1284, 1289 (Ind. 1990)). The court noted: “Although not applicable to

this case as Wilkerson was sentenced in 1987, the 1994 amendment to Ind.

Code § 35-50-1-2 has overturned the contemporaneity requirement set forth in

Kendrick and Seay.” Id. at 248 n.2 (citing Weaver v. State, 664 N.E.2d 1169, 1170

(Ind. 1996); Elswick v. State, 706 N.E.2d 592, 594 (Ind. Ct. App. 1999)). Mullis

committed his crimes and was sentenced well after the 1994 amendment. At

the time of his offenses and sentencing, Ind. Code § 35-50-1-2 provided in part

that “[t]he court may order terms of imprisonment to be served consecutively

even if the sentences are not imposed at the same time.”4 Thus, we cannot say

that the trial court would have been required to sentence Mullis to concurrent

sentences had the charges been severed.5 We cannot say that the evidence as a

whole unerringly and unmistakably leads to a conclusion opposite that reached

by the post-conviction court.




4
  Subsequently amended by Pub. L. No. 126-2008, § 12 (eff. July 1, 2008); Pub. L. No. 125-2012, § 416 (eff.
July 1, 2012); Pub. L. No. 126-2012, § 59 (eff. July 1, 2012); Pub. L. No. 13-2013, § 144 (eff. April 1, 2013);
Pub. L. No. 214-2013, § 43 (eff. July 1, 2013); Pub. L. No. 158-2013, § 650 (eff. July 1, 2014); Pub. L. No.
168-2014, § 108 (eff. July 1, 2014); Pub. L. No. 238-2015, § 16 (eff. July 1, 2015); Pub. L. No. 13-2016, § 18
(eff. July 1, 2016).
5
 Mullis also appears to argue that filing a second habitual offender if the charges had been severed would
have constituted vindictive prosecution. We cannot say that he cited to authority for this assertion or
developed a cogent argument regarding its impact as to whether he received ineffective assistance.
Accordingly, this issue is waived.

Court of Appeals of Indiana | Memorandum Decision 03A04-1602-PC-203 | November 22, 2016            Page 20 of 21
                                                   Conclusion

[28]   For the foregoing reasons, we affirm the post-conviction court’s denial of

       Mullis’s petition for post-conviction relief.


[29]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A04-1602-PC-203 | November 22, 2016   Page 21 of 21
