                                                                                     FILED
                                                                                May 31 2018, 9:00 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                          Curtis T. Hill, Jr.
      Public Defender of Indiana                                Attorney General of Indiana
      J. Michael Sauer
                                                                Ellen H. Meilaender
      Deputy Public Defender
                                                                Deputy Attorney General
      Indianapolis, Indiana
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Matthew Johnson,                                          May 31, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                79A05-1711-PC-2505
              v.                                                Appeal from the Tippecanoe
                                                                Superior Court
      State of Indiana,                                         The Honorable Steven P. Meyer,
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                79D02-1407-PC-5



      May, Judge.




[1]   Matthew Johnson appeals the denial of his petition for post-conviction relief.

      He argues the post-conviction court erred when it rejected his allegation that his

      appellate counsel was ineffective for failing to argue the application of the


      Court of Appeals of Indiana | Opinion 79A05-1711-PC-2505 | May 31, 2018                            Page 1 of 9
      Proportionality Clause to Johnson’s conviction of Class B felony aggravated

      battery. We affirm.



                                Facts and Procedural History
[2]   On July 20, 2011, the trial court found Johnson guilty of Class B felony

      aggravated battery, 1 Class C felony battery, 2 Class B felony possession of

      methamphetamine, 3 Class C felony possession of methamphetamine, 4 and

      Class C felony possession of chemical reagents or precursors with intent to

      manufacture controlled substances. 5 The trial court also found Johnson was a

      habitual substance offender. 6 On September 30, 2011, the trial court sentenced

      Johnson to fifteen years for Class B felony aggravated battery to be served

      consecutive to fifteen years for Class B felony possession of methamphetamine,

      which was enhanced by five years by virtue of Johnson’s habitual substance

      offender adjudication, for an aggregate sentence of thirty-five years

      incarcerated. 7




      1
          Ind. Code § 35-42-2-1.5 (1997).
      2
          Ind. Code § 35-42-2-1(a)(3) (2009).
      3
          Ind. Code § 35-48-4-6.1 (b)(2) (2006).
      4
          Ind. Code § 35-48-4-6.1(b)(1) (2006).
      5
          Ind. Code § 35-48-4-14.5(e) (2006).
      6
          Ind. Code § 35-50-2-10(b) (2006).
      7
          The trial court did not enter sentences for the Class C felonies due to double jeopardy concerns.


      Court of Appeals of Indiana | Opinion 79A05-1711-PC-2505 | May 31, 2018                                 Page 2 of 9
[3]   On appeal, Johnson’s appellate counsel raised four issues:


              (1) whether the court abused its discretion by denying his motion
              to sever the drug-related charges; (2) whether the court abused its
              discretion by refusing to add language to the self-defense
              instruction; (3) whether the court abused its discretion by refusing
              to instruct the jury regarding defenses to the drug charges; and (4)
              whether the sentence was inappropriate.


      (App. Vol. II at 127.) We affirmed Johnson’s convictions and sentence.

      Johnson v. State, Cause No. 79A02-1110-CR-991 (Ind. Ct. App. Sept. 21, 2012).


[4]   On July 16, 2014, Johnson filed a pro se petition for post-conviction relief. On

      December 15, 2016, Johnson, with the aid of counsel, filed an amended petition

      for post-conviction relief. Johnson argued his appellate counsel was ineffective

      for failing to argue on appeal that Johnson’s conviction of Class B felony

      aggravated battery violated the Proportionality Clause. The post-conviction

      court held an evidentiary hearing on the petition on August 2, 2017. On

      October 27, 2017, the post-conviction court denied Johnson’s petition.



                                 Discussion and Decision
[5]   A post-conviction petition is not a substitute for an appeal, nor does it afford a

      petitioner a “super appeal.” Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006).

      Post-conviction proceedings afford petitioners a limited opportunity to raise

      issues that were unavailable or unknown at trial and on direct appeal. Davidson

      v. State, 763 N.E.2d 441, 443 (Ind. 2002), reh’g denied, cert. denied, 537 U.S. 1122

      (2003). As post-conviction proceedings are civil in nature, the petitioner must

      Court of Appeals of Indiana | Opinion 79A05-1711-PC-2505 | May 31, 2018     Page 3 of 9
      prove his grounds for relief by a preponderance of the evidence. Id. A party

      appealing a post-conviction judgment must establish that the evidence is

      without conflict and, as a whole, unmistakably and unerringly points to a

      conclusion contrary to that reached by the post-conviction court. Id. Where, as

      here, the post-conviction court makes findings of fact and conclusions of law in

      accordance with Indiana Post-Conviction Rule 1(6), we do not defer to the

      court’s legal conclusions, but “the 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.” Ben-Yisrayl v. State, 729 N.E.2d 102,

      106 (Ind. 2000) (internal quotation and citation omitted), reh’g denied, cert.

      denied, 534 U.S. 830 (2001).


[6]   We review claims of ineffective assistance of appellate counsel using the same

      standard applicable to claims of trial counsel ineffectiveness. Fisher v. State, 810

      N.E.2d 674, 676-7 (Ind. 2004). The defendant must show that appellate

      counsel was deficient in his performance and that the deficiency resulted in

      prejudice. Id. at 677. A claim of ineffective appellate assistance generally falls

      into one of three categories: (1) denial of access to an appeal; (2) waiver of

      issues; or (3) failure to present issues well. Id. We employ a two-part test to

      evaluate “waiver of issue” claims: (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. Id.


[7]   Because counsel has considerable discretion in choosing strategy and tactics, we

      presume counsel’s assistance was adequate and all significant decisions were

      Court of Appeals of Indiana | Opinion 79A05-1711-PC-2505 | May 31, 2018     Page 4 of 9
      made in the exercise of reasonable professional judgment. State v. Miller, 771

      N.E.2d 1284, 1288 (Ind. Ct. App. 2002), reh’g denied, trans. denied. One of the

      most important strategic decisions is deciding what issues to raise on appeal.

      Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1998), reh’g denied, cert. denied, 525

      U.S. 1021 (1998). Appellate counsel is not ineffective for declining to present a

      claim that had no merit. Stowers v. State, 657 N.E.2d 194, 200 (Ind. Ct. App.

      1995), trans. denied. We consider the reasonableness of appellate counsel’s

      strategic decisions based upon precedent available at the time of the direct

      appeal. Williamson v. State, 798 N.E.2d 450, 454 (Ind. Ct. App. 2003), reh’g

      denied, trans. denied.


[8]   In his post-conviction relief petition, Johnson argued his appellate counsel was

      ineffective because appellate counsel did not present on direct appeal the

      argument that the Proportionality Clause of the Indiana Constitution prohibited

      sentencing Johnson for Class B felony aggravated battery because Class B

      felony aggravated battery and Class D felony criminal recklessness 8

      encompassed the same elements. The Proportionality Clause of the Indiana

      Constitution states: “All penalties shall be proportioned to the nature of the

      offense.” Ind. Const. Article 1, Section 16. A sentence violates the

      Proportionality Clause when “offenses with identical elements [are] given




      8
          Ind. Code § 35-42-2-2(d) (2006).


      Court of Appeals of Indiana | Opinion 79A05-1711-PC-2505 | May 31, 2018      Page 5 of 9
       different sentences.” Poling v. State, 853 N.E.2d 1270, 1276-7 (Ind. Ct. App.

       2006), reh’g denied.


[9]    Before the post-conviction court, Johnson argued his appellate counsel should

       have presented a Proportionality Clause argument based on Johnson’s

       perception that there existed a “split of authority in the Court of Appeals on the

       Proportionality Clause[.]” (Br. of Appellant at 11.) Johnson contended a split

       was created our court’s holdings in Poling 9 and Matthews v. State, 944 N.E.2d 29

       (Ind. Ct. App. 2011), reh’g denied, and this alleged split made the Proportionality

       Clause argument stronger than the arguments appellate counsel presented on

       appeal.


[10]   During the post-conviction evidentiary hearing, appellate counsel argued he did

       not present a Proportionality Clause argument as part of Johnson’s direct

       appeal based on our holding in Matthews, which stated, in relevant part, that a

       conviction of Class B felony aggravated battery does not violate the

       Proportionality Clause because Class B felony aggravated battery and Class D

       criminal recklessness do not have the same elements. 944 N.E.2d at 33. The

       post-conviction court found:


                The Matthews decision was issued 14 months before appellate
                counsel filed his brief. Matthews was grounded in the 2008 Mann



       9
         Poling held the elements of Class C felony child neglect and Class D felony child neglect were identical and,
       thus, Poling’s conviction and sentence for Class C felony child neglect violated the Proportionality Clause.
       Poling, 853 N.E.2d at 1277. By contrast, the elements of Class B felony aggravated battery and Class D
       felony criminal recklessness are not identical, as held in Matthews. Matthews, 944 N.E.2d at 33.

       Court of Appeals of Indiana | Opinion 79A05-1711-PC-2505 | May 31, 2018                             Page 6 of 9
               decision. These cases were existing precedent and failed to
               follow the Poling decision upon which Johnson relies. The
               Matthews case is directly on point in this case and was existing
               case law at the time of Johnson’s appeal. Thus, Johnson cannot
               demonstrate that the issue his appellate counsel failed to raise
               would have been clearly more likely to result in reversal or order
               for new sentencing.


       (App. Vol. II at 133-4.)


[11]   In Matthews, our court affirmed the post-conviction court’s denial of post-

       conviction relief based on an argument similar to that raised here by Johnson.

       Matthews asserted his counsel, who represented him at the trial and appellate

       levels, was ineffective because he did not argue the Proportionality Clause as

       related to Matthews’ conviction and sentence for Class B felony aggravated

       battery and Class C felony battery. Matthews, 944 N.E.2d at 33. Like Johnson,

       Matthews argued the elements for Class B felony aggravated battery were

       identical to the elements for Class D felony criminal recklessness, and thus his

       counsel was ineffective for failing to argue the Proportionality Clause because

       his conviction of and sentence for Class B felony aggravated battery violated the

       clause. Our court concluded


               the mental state required for Class D felony criminal recklessness
               is different from the mental state required for the other two
               crimes [Class B felony aggravated battery and Class C felony
               battery]. . . . Because the three crimes do not have identical
               elements, the proportionality clause of our Constitution is not
               offended if our legislature assigns different sentences to them.




       Court of Appeals of Indiana | Opinion 79A05-1711-PC-2505 | May 31, 2018      Page 7 of 9
       Id. Therefore, we held Matthews had not demonstrated he was prejudiced by

       any alleged error his counsel made in not arguing the Proportionality Clause.


[12]   The same is true here. When appellate counsel filed Johnson’s direct appeal,

       Matthews had recently been handed down and was directly on point, as its

       holding addressed the same issue Johnson now argues should have been

       presented: whether the elements of Class B felony aggravated battery and Class

       D felony criminal recklessness were identical, making their disparate sentences

       violate the Proportionality Clause. As appellate counsel relied upon the

       precedent available and directly on point at the time of the direct appeal,

       Johnson has not demonstrated appellate counsel was ineffective for failing to

       argue for the application of the Proportionality Clause. See Bieghler, 690 N.E.2d

       at 194 (courts “should not find deficient performance when counsel’s choice of

       some issues over others was reasonable in light of the facts of the case and the

       precedent available to counsel when that choice was made”). Therefore, the

       trial court did not err when it denied Johnson’s petition for post-conviction

       relief. See Ben-Yisrayl, 729 N.E.2d at 106 (appellate court will reverse post-

       conviction court’s decision only upon demonstration of clear error).



                                                Conclusion
[13]   Johnson has not demonstrated his appellate counsel was ineffective for failing

       to present a Proportionality Clause argument because the precedent existing at

       the time undermined the validity of Johnson’s proposed argument.

       Accordingly, we affirm.

       Court of Appeals of Indiana | Opinion 79A05-1711-PC-2505 | May 31, 2018    Page 8 of 9
[14]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 79A05-1711-PC-2505 | May 31, 2018   Page 9 of 9
