MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              Jul 22 2016, 9:52 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.


ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                          Gregory F. Zoeller
Public Defender of Indiana                                Attorney General of Indiana
Indianapolis, Indiana
                                                          George P. Sherman
Steven H. Schutte
                                                          Deputy Attorney General
Deputy Public Defender
                                                          Indianapolis, Indiana
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Heffern,                                          July 22, 2016
Appellant-Petitioner,                                     Court of Appeals Cause No.
                                                          38A02-1509-PC-1325
        v.                                                Appeal from the Jay Circuit Court
                                                          The Honorable Brian D.
State of Indiana,                                         Hutchison, Judge
Appellee-Respondent.                                      Trial Court Cause No.
                                                          38C01-1109-PC-2



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 38A02-1509-PC-1325 | July 22, 2016        Page 1 of 9
                                             Case Summary
[1]   Michael Heffern appeals the post-conviction court’s denial of his petition for

      post-conviction relief challenging convictions for murder and Class B felony

      robbery. We affirm.


                                                      Issue
[2]   The issue before us is whether Heffern received effective assistance of appellate

      counsel.


                                                     Facts
[3]   On September 7, 2008, Michael Heffern and Joseph Randall went to Tina

      Whiting’s home in Portland, Indiana, to watch a football game with Whiting,

      Addison Pijnappels, Addison’s husband, Tom Smith, and Rod Berry. Whiting

      told Heffern there was a man, Shawn Buckner, with whom she was having

      problems. Heffern asked Whiting if she wanted him to beat up Buckner.

      Whiting told Heffern that if he assaulted Buckner, he might be able to take

      some pills from Buckner. Heffern and those present at the party discussed

      beating Buckner and taking his pills.


[4]   After they all agreed to assault Buckner, Whiting and Pijnappels left to find

      Buckner. The two women lured Buckner to Whiting’s residence by promising

      to have a sexual encounter with him. Heffern, Berry, and Smith hid in

      Whiting’s home until the women returned with Buckner. After Buckner

      entered the house, Heffern began assaulting him. Buckner tried to resist, but

      Berry grabbed him and began hitting him as well. Buckner also tried to escape
      Court of Appeals of Indiana | Memorandum Decision 38A02-1509-PC-1325 | July 22, 2016   Page 2 of 9
      from the men’s grasp and tried to run, but Smith pushed Buckner, causing him

      to fall to the floor in the kitchen. The men then started kicking Buckner to

      prevent him from standing up. As Buckner moaned, the men continued to kick

      and punch him numerous times while lying on the floor. The men then

      removed Buckner’s clothing and found he had $20. Smith gave the money to

      Pijnappels and told her to go get more beer. Smith indicated he was going to

      cut off Buckner’s penis, but Heffern stated he should not.


[5]   The men wrapped Buckner in a blanket and carried him out to Berry’s vehicle.

      While driving around, Heffern punched Buckner numerous times to stop his

      moaning. The men stopped at a cornfield, and Heffern and Smith took

      Buckner into the field, where Buckner was stabbed to death. The men returned

      to Whiting’s home and began cleaning up the house to eliminate evidence of

      the assault. The clothing that the men wore during the attack were placed in a

      trash bag and later burned in a corn field.


[6]   Heffern was subsequently convicted of murder and Class B felony robbery. At

      Heffern’s sentencing hearing, the trial court identified a number of aggravating

      factors. Based on the aggravating factors, the trial court imposed an additional

      five years above the advisory sentence on each count and ordered the terms to

      run consecutively for an aggregate sentence of seventy-five years. Heffern

      appealed his conviction. The issues Heffern’s attorney raised on direct appeal

      were whether: (1) the trial court properly allowed the State to amend the

      charging information, changing count 2 from robbery resulting in serious bodily

      injury to robbery while armed with a deadly weapon; (2) the trial court abused

      Court of Appeals of Indiana | Memorandum Decision 38A02-1509-PC-1325 | July 22, 2016   Page 3 of 9
      its discretion when it admonished the jury regarding police officers’ statements

      on a videotape and corresponding transcript admitted into evidence but did not

      give a similar preliminary or final instruction; (3) the evidence was sufficient to

      support Heffern’s convictions; and (4) the entry of judgment of conviction for

      murder and robbery with a deadly weapon violated Heffern’s constitutional

      right to be free from double jeopardy. We affirmed in a memorandum decision,

      and our supreme court denied transfer. Heffern v. State, No. 38A05-1007-CR-

      462 (Ind. Ct. App. Apr. 26, 2011), trans. denied.


[7]   Heffern filed a post-conviction relief petition, claiming he received ineffective

      assistance of appellate counsel because at the hearing on Heffern’s petition,

      Heffern’s appellate counsel testified that he did not argue that the trial court

      found and weighed an improper aggravating circumstance in determining

      Heffern’s sentence. Counsel believed he might have discussed with Heffern the

      risk that this court might increase Heffern’s sentence. Heffern testified that he

      and his counsel did not discuss that risk. The post-conviction court entered

      findings of fact and conclusions thereon denying Heffern’s petition. Heffern

      now appeals the post-conviction court’s denial of his petition for post-

      conviction relief.


                                                   Analysis
[8]   Heffern argues that the post-conviction court’s denial of his petition is clearly

      erroneous. “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). “When appealing from the denial of post-conviction
      Court of Appeals of Indiana | Memorandum Decision 38A02-1509-PC-1325 | July 22, 2016   Page 4 of 9
       relief, the petitioner stands in the position of one appealing from a negative

       judgment.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). We review a post-

       conviction courts’ factual findings under a “clearly erroneous” standard and do

       not defer to any legal conclusions. Huddleston v. State, 951 N.E.2d 277, 280

       (Ind. Ct. App. 2011), trans. denied. We do not reweigh the evidence or judge the

       witnesses’ credibility and will examine only the probative evidence and

       reasonable inferences that support the post-conviction court’s decision. Id. We

       must determine if the court’s findings are sufficient to support the judgment. Id.


[9]    Heffern contends that his appellate counsel was ineffective because he failed to

       raise a sentencing argument on direct appeal. “To establish a post-conviction

       claim alleging the violation of the Sixth Amendment right to effective assistance

       of counsel, a defendant must establish before the post-conviction court the two

       components set forth in Strickland v. Washington, 466 U.S. 668 (1984).” Kubsch

       v. State, 934 N.E.2d 1138, 1147 (Ind. 2010). A petitioner must demonstrate

       both that his counsel’s performance was deficient and that the petitioner was

       prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102,

       106 (Ind. 2000).


[10]   A counsel’s performance is deficient if it falls below an objective standard of

       reasonableness based on prevailing professional norms. French v. State, 778

       N.E.2d 816, 824 (Ind. 2002). “Further, counsel’s performance is presumed

       effective, and a defendant must offer strong and convincing evidence to

       overcome this presumption.” Kubsch, 934 N.E.2d at 1147. To meet the

       appropriate test for prejudice, the petitioner must show that there is a

       Court of Appeals of Indiana | Memorandum Decision 38A02-1509-PC-1325 | July 22, 2016   Page 5 of 9
       reasonable probability that, but for counsels unprofessional errors, the result of

       the proceeding would have been different. Id. “A reasonable probability is a

       probability sufficient to undermine confidence in the outcome.” Strickland, 466

       U.S. at 694. Failure to satisfy either prong will cause the claim to fail. Grinstead

       v. State, 845 N.E.2d 1027, 1031 (Ind. 2006).


[11]   “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

       performance and that the deficiency resulted in prejudice.” Garrett v. State, 992

       N.E.2d 710, 719 (Ind. 2013). Ineffective assistance of appellate counsel 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). Heffern argues that his appellate counsel failed to raise

       an issue on appeal, resulting in waiver. 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. 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 (2) whether the unraised issues are ‘clearly stronger’

       than the raised issues.” Id. (quoting Timberlake v. State, 753 N.E.2d 591, 605-06

       (Ind. 2001), cert. denied).


[12]   “If the analysis under this test demonstrates deficient performance, then we

       examine whether, ‘the issues which . . . appellate counsel failed to raise, would

       Court of Appeals of Indiana | Memorandum Decision 38A02-1509-PC-1325 | July 22, 2016   Page 6 of 9
       have been clearly more likely to result in reversal or an order for a new trial.’“

       Id. (quoting Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997), cert. denied).

       Further, we must consider the totality of an attorney’s performance to

       determine whether the client received constitutionally adequate assistance. Id.

       at 1195-96. Ineffective assistance is very rarely found in cases where a

       defendant asserts that appellate counsel failed to raise an issue on direct appeal.

       Id. 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 made by appellate counsel. Id.


[13]   Here, the trial court identified seven aggravating factors at Heffern’s sentencing

       hearing. These factors caused the trial court to impose an additional five years

       above the advisory sentence on each count and to order the terms to run

       consecutively for an aggregate sentence of seventy-five years. These

       aggravating factors included: (1) Heffern had a significant and lengthy criminal

       record; (2) the heinous nature of the offenses, including the beating, torture,

       repeated stabbing, and mutilation of the victim’s body; (3) Heffern had a lead

       role in committing the offenses; (4) Heffern assisted in planning the offenses; (5)

       Heffern lay in wait to commit crimes; (6) Heffern’s continued brutality against

       the victim after the robbery had been completed; and (7) the apparent effort to

       paint the victim as a perpetrator against children while Heffern himself had

       committed prior offenses against children.


[14]   Heffern contends that appellate counsel was ineffective because he should have

       argued that the trial court erred in identifying as an aggravator the apparent

       effort to paint the victim as a perpetrator against children while Heffern himself

       Court of Appeals of Indiana | Memorandum Decision 38A02-1509-PC-1325 | July 22, 2016   Page 7 of 9
       had committed prior offenses against children. We do not find that appellate

       counsel was ineffective. In Garrett v. State, our supreme court concluded that

       “although the trial court erred in finding one improper aggravating

       circumstance, other valid aggravators remain including a history of delinquent

       activity as evidenced by Garrett’s juvenile record and his admission at trial that

       he regularly dealt crack cocaine.” 714 N.E.2d 618, 623 (Ind. 1999). “A single

       aggravating circumstance may be sufficient to support an enhanced sentence.”

       Id. Even if one of the aggravating factors in Heffern’s case was improper,

       appellate counsel could have reasonably determined that challenging that

       aggravating factor would not have provided Heffern with any relief because

       Heffern’s sentence was supported by six other aggravating factors.


[15]   On direct appeal, Heffern raised four issues which were whether: (1) the trial

       court properly allowed the State to amend the charging information, changing

       count 2 from robbery resulting in serious bodily injury to robbery while armed

       with a deadly weapon; (2) the trial court abused its discretion when it

       admonished the jury regarding police officers’ statements on a videotape and

       corresponding transcript admitted into evidence but did not give a similar

       preliminary or final instruction; (3) the evidence was sufficient to support

       Heffern’s convictions; and (4) the entry of judgment of conviction for murder

       and robbery with a deadly weapon violated Heffern’s constitutional right to be

       free from double jeopardy. Heffern has failed to show that the unraised issue

       was significant and obvious from the face of the record and that the unraised

       issue is “clearly stronger” than the raised issues. Thus, his counsel’s


       Court of Appeals of Indiana | Memorandum Decision 38A02-1509-PC-1325 | July 22, 2016   Page 8 of 9
       performance was not deficient, and he was not prejudiced by the alleged

       deficient performance.


[16]   Given that Heffern has failed to demonstrate he received ineffective assistance

       of appellate counsel, we conclude that the post-conviction court properly denied

       Heffern’s petition for post-conviction relief.


                                                 Conclusion
[17]   The post-conviction court properly denied Heffern’s petition for post-conviction

       relief. We affirm.


[18]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 38A02-1509-PC-1325 | July 22, 2016   Page 9 of 9
