MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Nov 13 2019, 9:49 am
court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Mark Johnson                                            Curtis T. Hill, Jr.
New Castle, Indiana                                     Attorney General of Indiana

                                                        Tyler Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Mark Johnson,                                           November 13, 2019
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        18A-PC-1929
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Kurt Eisgruber,
Appellee-Defendant                                      Judge
                                                        Trial Court Cause No.
                                                        49G01-1106-PC-41966



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1929 | November 13, 2019                  Page 1 of 9
[1]   Mark Johnson appeals the denial of his petition for post-conviction relief. He

      argues he received ineffective assistance of appellate counsel because his

      appellate counsel: (1) did not argue on direct appeal that Johnson received

      ineffective assistance of trial counsel; and (2) did not present argument on direct

      appeal challenging Johnson’s habitual offender adjudication. We affirm.



                            Facts and Procedural History
[2]   The facts underlying Johnson’s convictions are set forth in our opinion deciding

      his direct appeal:


              The evidence most favorable to the convictions is that at around
              noon on June 12, 2011, A.T. agreed over the phone to go to
              Johnson’s home in Indianapolis. A.T. went to Johnson’s home
              hoping to smoke marijuana with him. Johnson told A.T. after
              she arrived that he did not have any marijuana but that someone
              else would bring some to the home at a later time. Meanwhile,
              the two sat on a couch and discussed each other’s children.
              Johnson smoked crack cocaine and drank beer, while A.T.
              smoked only cigarettes and did not smoke any crack or drink any
              alcohol.


              At some point, Johnson began taking off his clothes. A.T. then
              stood up, intending to leave, but Johnson grabbed her arm and
              threw her back on the couch. A.T. began yelling and telling
              Johnson to stop. Instead, Johnson pulled down A.T.’s pants,
              held her arms over her head, and had vaginal intercourse with
              her while she continued begging him to stop. After a period of
              time, Johnson stopped having intercourse, and A.T. pulled up
              her pants and ran out of the house. While driving away,
              planning on going to a hospital, A.T. saw a parked police car and
              reported what had happened to the officer.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1929 | November 13, 2019   Page 2 of 9
        DNA testing revealed the presence of biological material from
        A.T. on Johnson’s penis and fingers and biological material from
        Johnson on A.T.’s neck. However, there was no biological
        material from Johnson recovered from A.T.’s genital area or
        clothing. Additionally, there was DNA from three unidentified
        males recovered from the panties A.T. was wearing when she
        went to the hospital after the rape.


        When police questioned Johnson about A.T.’s rape allegation
        and told him that A.T. had denied smoking crack, Johnson
        accused her of lying and asked whether A.T. would be tested for
        drugs. The interviewing officer, Detective Laura Smith, said that
        A.T.’s blood would be so tested at the hospital. However, this
        statement was based on Detective Smith’s outdated belief that
        toxicology testing of the victim was standard rape examination
        protocol when in fact that protocol had been changed and
        toxicology was no longer performed. Instead, a liquid sample of
        A.T.’s blood was disposed of, without first being tested for the
        presence of drugs, after a lab technician placed a sample of the
        blood on a dry card for DNA testing purposes.


        On June 15, 2011, the State charged Johnson with Class B felony
        rape, Class D felony criminal confinement, and Class A
        misdemeanor battery. The State later filed an allegation that
        Johnson was an habitual offender. Before trial, Johnson filed a
        motion to introduce evidence of the unidentified DNA found in
        A.T.’s underwear, which the trial court denied. Also before trial,
        Johnson sought dismissal of the prosecution on the basis that the
        State had destroyed material evidence, i.e. A.T.’s liquid blood,
        which Johnson claimed could have proven through toxicology
        testing that A.T. was under the influence of drugs and/or alcohol
        at the time of the incident, rendering her less credible. The trial
        court also denied this motion. On November 3, 2011, after a jury
        trial, Johnson was found guilty as charged, and he admitted to
        being an habitual offender. The trial court entered judgments of


Court of Appeals of Indiana | Memorandum Decision 18A-PC-1929 | November 13, 2019   Page 3 of 9
              conviction on all three guilty findings and sentenced Johnson
              accordingly.


      Johnson v. State, 2012 WL 4324448, slip op. at 1-2 (Ind. Ct. App. 2012)

      (footnotes omitted), trans. denied.


[3]   On direct appeal, Johnson argued his convictions for rape, criminal

      confinement, and battery violated his right to be free from double jeopardy; the

      trial court abused its discretion when it denied Johnson’s motion to dismiss;

      and the trial court abused its discretion when it refused to permit Johnson to

      introduce evidence in violation of the Rape Shield Rule. Our court reversed

      Johnson’s convictions for criminal confinement and battery based on a

      violation of double jeopardy and affirmed the trial court’s denial of Johnson’s

      motion to dismiss and refusal to allow Johnson to present evidence that

      violated the Rape Shield Rule. Id. at 7. Our Indiana Supreme Court denied

      Johnson’s petition for transfer.


[4]   On August 21, 2013, Johnson filed a pro se petition for post-conviction relief

      alleging ineffective assistance of trial counsel and ineffective assistance of

      appellate counsel. On June 19, 2018, the post-conviction court held an

      evidentiary hearing. On July 13, 2018, the post-conviction court denied

      Johnson’s petition for post-conviction relief.



                                Discussion and Decision


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1929 | November 13, 2019   Page 4 of 9
[5]   Claims of ineffective assistance of appellate counsel are reviewed using the

      same standard as claims of ineffective assistance of trial counsel. 1 Taylor v.

      State, 717 N.E.2d 90, 94 (Ind. 1999). These claims generally fall into three

      categories: (1) denying access to appeal; (2) waiver of issues; and (3) failure to

      present issues well. Bieghler v. State, 690 N.E.2d 188, 193-95 (Ind. 1997), cert.

      denied sub nom. Bieghler v. Indiana, 525 U.S. 1021 (1998). Relief is appropriate

      only when we are confident we would have ruled differently if counsel had

      performed adequately. Id. at 196.


          Failure to Present Ineffective Assistance of Trial Counsel
                         Argument on Direct Appeal
[6]   Johnson argues his appellate counsel was ineffective because she did not raise

      the issue of ineffective assistance of trial counsel on direct appeal. The errors

      Johnson claims were made by trial counsel, related to evidence of the victim’s

      prior sexual history that was not admitted because the evidence violated the




      1
       A successful claim of ineffective assistance of trial counsel must satisfy two components. First, the
      defendant must show deficient performance - representation that fell below an objective standard of
      reasonableness involving 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), reh’g denied. Second, 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.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1929 | November 13, 2019                   Page 5 of 9
      Rape Shield Rule, were litigated as part of his direct appeal, and our court

      affirmed the trial court’s refusal to admit such evidence. 2 Johnson, slip op. at 6. 3


[7]   Further, we note had Johnson’s appellate counsel raised the issue on direct

      appeal, she would have foreclosed Johnson from raising that issue before a post-

      conviction court. See Ben-Yisrayl v. State, 738 N.E.2d 253, 259 (Ind. 2000) (once

      a petitioner raises a claim of ineffective assistance of counsel on direct appeal,

      he is precluded from raising ineffective assistance of trial counsel in a petition

      for post-conviction relief), reh’g denied, cert. denied sub nom. Ben-Yisrayl v. Indiana,

      534 U.S. 1164 (2002). Johnson has not demonstrated he was prejudiced by this

      decision, as our decision in his direct appeal would not have been affected by an

      additional argument of ineffective assistance of trial counsel, and the inclusion

      of that issue in his direct appeal would have been against his interest. See Jewell

      v. State, 887 N.E.2d 939, 942 (Ind. 2008) (presentation of issue of ineffective

      counsel on direct appeal forecloses the use of “the broader evidentiary

      opportunities afforded in post-conviction proceedings”); and see McCary, 761

      N.E.2d at 392 (petitioner must demonstrate prejudice, that is, “a reasonable




      2
        Johnson also alleges his appellate counsel was ineffective for failing to argue ineffective assistance of trial
      counsel as part of his direct appeal based on Johnson’s allegation that the trial court erred when it
      adjudicated him a habitual offender. We will address the issue of Johnson’s habitual offender adjudication
      infra.
      3
       Johnson contends that the “rape shield law did not prohibit use of the forensic laboratory results for his
      defense.” (Br. of Appellant at 16.) Johnson also maintains that the evidence of unidentified DNA being
      present in panties, pants, vaginal, and genitalia area should have been admitted. (Id.) But at trial the expert
      who performed the DNA testing testified that Johnson’s DNA was not found in A.T.’s vaginal swabs,
      external genital swabs, or in her underwear. (Prior Case Tr. at 434-36.) Thus, the forensic laboratory results
      were, in fact, used in Johnson’s defense, and the other DNA evidence which he contends should have been
      admitted was both irrelevant and properly excluded under the Rape Shield Rule.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1929 | November 13, 2019                       Page 6 of 9
      probability . . . that, but for counsel’s errors, the result of the proceeding would

      have been different.”).


        Appellate Counsel’s Failure to Challenge Habitual Offender
                             Status on Appeal
[8]   As part of the underlying case, the State alleged Johnson was a habitual

      offender based on two prior burglary convictions – one a Class B felony and

      one a Class C felony. (Prior Case App. Vol. II at 27.) At trial, the State

      presented evidence of the two prior convictions through relevant Abstracts of

      Judgment and fingerprint evidence. One of the prior convictions was listed as a

      Class B felony on the Abstract of Judgment presented as evidence to the trial

      court, but the Abstract indicated Johnson was sentenced to three years, which

      was below the minimum sentence for a Class B felony. In addition, the

      Abstract of Judgment indicates the disposition for Class B felony burglary was

      “Finding of Guilty Lesser Included.” (Id. at 79.) Based on this variance,

      Johnson argues the trial court erred when it adjudicated him a habitual offender

      and his appellate counsel was ineffective for failing to challenge Johnson’s

      habitual offender adjudication as part of his direct appeal.


[9]   During his trial, Johnson’s trial counsel argued, regarding this discrepancy:


              [Defense Counsel]: . . . The State has laid out their charging
              information. It was charged as a B felony thereof conviction on
              May 25th of 2001. Local rules require that charges be made out
              with specificity and I would ask the court to hold the State to the
              four corners of [the] document and looking at the abstract of
              judgment the Court can see that the sentence is not in line with a

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1929 | November 13, 2019   Page 7 of 9
               B felony conviction, therefore, the State has not proven beyond a
               reasonable doubt that Mark Johnson was convicted of a B felony
               burglary and we’d ask that he be found not guilty of the habitual
               offender.


       (Prior Case Tr. Vol. IV at 755.) In announcing its decision, the trial court

       stated:


               [Court]:      . . . The Court has heard the argument, has heard
               the evidence of counsel; understands the defense’s argument,
               however, it does reflect that – a conviction of a felony – burglary
               and I appreciate what you say about the sentence but it is still a
               felony I believe for purposes of the habitual offender statute.


       (Id.)


[10]   The statute that governed habitual offender adjudications at the time of

       Johnson’s trial stated: “A person is a habitual offender if the . . . court (if the

       hearing is to the court alone) finds that the state has proved beyond a

       reasonable doubt that the person had accumulated two (2) prior unrelated

       felony convictions.” Ind. Code § 35-50-2-8(g) (2005). Therefore, the State was

       required to prove Johnson had two prior unrelated felony convictions. As only

       felonies carry sentences of more than one year, it is reasonable to infer that the

       burglary offense in question was a felony, and the State carried its burden.

       Based thereon, Johnson has not demonstrated his appellate counsel was

       ineffective for failing to raise the issue of his habitual offender adjudication

       because that argument would have been unsuccessful. As the argument would

       have been unsuccessful, we also conclude that Johnson’s appellate counsel was


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1929 | November 13, 2019   Page 8 of 9
       not ineffective for failing to argue on direct appeal that his trial counsel was

       ineffective regarding trial counsel’s handling of the habitual offender issue. See

       Bieghler, 690 N.E.2d at 196 (relief on a claim of ineffective assistance of

       appellate counsel is successful only when we are convinced the result of the

       appeal would be different).



                                               Conclusion
[11]   Johnson did not demonstrate his appellate counsel was ineffective because she

       did not argue that his trial counsel was ineffective or that the trial court erred

       when it adjudicated him a habitual offender. Accordingly, we affirm the denial

       of his petition for post-conviction relief.


[12]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1929 | November 13, 2019   Page 9 of 9
