FOR PUBLICATION                                                            Nov 21 2014, 9:32 am




ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

DARREN BEDWELL                               GREGORY F. ZOELLER
Marion County Public Defender                Attorney General of Indiana
Indianapolis, Indiana
                                             JODI KATHRYN STEIN
                                             Deputy Attorney General
                                             Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

CHRISTOPHER M. MONTGOMERY,                   )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )    No. 49A02-1312-CR-1039
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                   APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Robert R. Altice, Jr., Judge
                          Cause No. 49G05-0704-MR-55165



                                  November 21, 2014


                             OPINION - FOR PUBLICATION


BROWN, Judge
      Pursuant to an order from the post-conviction court, Judge Grant W. Hawkins

presiding, Christopher Montgomery filed this “new direct appeal on his convictions for

Count I, Murder, and Count III, Neglect of a Dependent,” which the post-conviction

court “limited to issues related to the introduction of 404(b) evidence and sufficiency

consistent with [the] court’s findings.” Appellant’s Appendix at 443. We first address an

issue sua sponte, which is whether the post-conviction court erred when, following a

determination that Montgomery received ineffective assistance of appellate counsel, it

ordered that Montgomery be granted a second direct appeal. Following this discussion,

we address the two issues raised by Montgomery, which we revise and restate as:

      I.     Whether the trial court abused its discretion by excluding certain
             evidence; and

      II.    Whether his conviction of neglect of a dependent as a class B felony
             violates double jeopardy principles.

We affirm in part, reverse in part, and remand.

                       FACTS AND PROCEDURAL HISTORY

      The relevant facts as discussed in Montgomery’s initial direct appeal follow:

      [I]n March 2007, Montgomery lived in a hotel with his long-time girlfriend,
      Courtney, and her children, Casey, and four-year-old Elijah Simpson. At
      approximately 7:00 p.m. on March 29, Courtney went to work while
      Montgomery stayed in the room to babysit the children. At some point
      during the evening, Montgomery became angry when Elijah sucked his
      thumb, ordered him to stop, and then ordered the child to stand in the
      corner. He remained there for hours until Montgomery ordered the boys to
      bed around 11:00 p.m. Whenever Elijah began sucking his thumb as he
      slept, Montgomery would awaken him and order him to stop. Courtney
      arrived home from work at about 2:00 a.m. and went to bed, while
      Montgomery remained awake playing video games. At about 5:00 a.m.,
      Courtney awakened to hear Montgomery say to Elijah in a “loud”,
      “aggressive” tone, “Get up little n----, go—get your ass in the corner.”
      Transcript at 132. Elijah obeyed and stood in the corner. After he had

                                            2
been standing there for approximately two hours, Courtney heard
Montgomery say in an aggressive voice, “come here . . . stand by the bed.”
Id. at 134. Elijah turned and looked at Montgomery “like he was scared”,
but did not move toward the bed. Id. at 135. This angered Montgomery,
who walked to Elijah, grabbed him by one arm and one leg, raised him to
about the level of his (Montgomery’s) head, and then threw him to the
floor. Elijah cried out and then immediately began having a seizure.
Courtney picked Elijah up and told Montgomery they needed to take the
child to the hospital. Montgomery responded,

       I don’t know how you [sic] getting there, you [sic] not taking
       my car. And if you call the police, or the ambulance, or your
       family, then you gonna be dead before they get here. So you
       pick one. Make a choice. . . . You better act like you
       understand. You here [sic] me talking to you?

Id. at 138. Courtney noted that Elijah’s seizure had subsided by that point
and therefore thought he would be “okay”. Id. She laid down and went
back to sleep. When she woke up sometime later, Elijah was not breathing.
She told Montgomery they needed to take Elijah to the hospital.
Montgomery panicked, saying, “Oh, not my little n----. I don’t want to go
to the jail.” Id. at 140. They drove Elijah to the hospital and during the
drive, Montgomery instructed Courtney not to tell anyone what had
happened. Efforts undertaken at the hospital to save the child’s life proved
unsuccessful and Elijah was pronounced dead. Police were summoned and
started an investigation.

       When questioned at the hospital, Courtney provided few details
about what had happened, saying only that Elijah had suffered a seizure.
Police drove to the motel and questioned Montgomery. He claimed he had
left the motel that morning around 8:00 to buy new tires, and when he
returned he found Elijah dead in his mother’s arms.

       An autopsy was performed upon Elijah’s body the next morning, and
it was discovered that Elijah had a fresh, four-inch fracture of the occipital
bone on the back of his skull. This fracture had caused a thick subdural
hematoma. Moreover, Elijah’s brain had been shaken from one side to the
other in his skull with sufficient force to cause contusions on both sides of
his temporal lobes. A medical doctor stated that the force necessary to
cause such an injury would have been “major”, and the equivalent of a car
crash. Id. at 284. Police again interviewed Courtney, and this time she
related the events resulting in Elijah’s death, as detailed above.



                                      3
Montgomery v. State, No. 49A02-0804-CR-343, slip op. at 2-4 (Ind. Ct. App. Dec. 2,

2008), trans. denied.

       On March 31, 2007, Detective Bill Rogers and Detective Kennedy interviewed

Montgomery regarding Elijah’s death in which Montgomery initially denied any wrong

doing. Later in the interview, Montgomery began talking about the date in question and

stated that “he had noticed that Elijah was sucking his thumb and had continued to do so

after he had told him not to, and that he had placed Elijah face first into a corner for

upwards of four hours.” Transcript at 219. Montgomery stated that between 2:00 and

3:00 a.m., after putting Elijah to bed he noticed that Elijah continued to suck his thumb

even in his sleep, and he “continually woke Elijah to pull his thumb out of his mouth and

to scold him . . . .” Id. at 220. He stated that Courtney was home when this occurred.

       He told the Detectives that Elijah continued to suck his thumb, which angered

him, that he woke Elijah and placed him face first in a corner for about an hour to an hour

and a half, and that Elijah became “fidgety” and he called Elijah to his bed. Id. at 221.

Montgomery stated that Elijah did not move as quickly as he would have liked, and when

Elijah did finally come he “frogged” Elijah twice in the chest. Id. Montgomery stated

that afterward, he “picked Elijah up and dropped him.” Id. at 222. Montgomery first

indicated that he dropped Elijah from a height of “just above his knees,” but after

Detective Kennedy told him that the injuries did not match what Montgomery was

describing, Montgomery gave two other explanations in which both the height and the

manner in which Elijah was thrown were changed.           Id.   In Montgomery’s second

explanation, he demonstrated that he held Elijah from a “mid torso” height and let go, but


                                            4
in his third explanation he demonstrated that he picked Elijah up to “his head level and

tossed.” Id. at 225.

        On April 5, 2007, the State charged Montgomery with, among other counts,

murder, two counts of neglect of a dependent as class A felonies, and neglect of a

dependent as a class C felony.1 On February 20, 2008, Montgomery filed, as amended, a

Notice to the Court of Intent to use 404(b) Evidence regarding evidence of a pattern of

abuse engaged in by Elijah’s mother, Courtney, against Elijah, which he stated was

“relevant and admissible as evidence of [her] guilt, motive, identity, bias and interest.”

Appellant’s Appendix at 226. That same day, the trial court, Judge Robert R. Altice

presiding, held a hearing on the issue and ultimately ruled that although some of the

evidence was admissible, including evidence that Courtney had battered Elijah a week

prior to his death and that Elijah had a cut/bruise on his forehead at the time of his death,

it also ruled that most of the proffered evidence was not admissible based on Ind.

Evidence Rules 401, 403, 404(b), and 801. The trial court also noted at the end of the

hearing that its rulings were preliminary and subject to change as the evidence was

admitted at trial.

        On February 25, 2008, the court commenced a jury trial, and on February 26,

2008, the jury found Montgomery guilty as charged. The court entered judgment of

conviction on the murder count and set a sentencing hearing date. On March 12, 2008,

the court held a sentencing hearing and entered judgment of conviction on two counts of

        1
          Initial charges including two additional counts of neglect of a dependent as class A felonies, as
well as counts of criminal confinement as a class C felony and dealing in marijuana as a class D felony,
were ultimately dismissed. In addition, Montgomery was charged with unlawful possession of a firearm
by a serious violent felon as a class B felony and possession of marijuana as a class D felony, but each of
those charges were severed on Montgomery’s motion.
                                                    5
neglect of a dependent, including under Count III for failing to seek immediate medical

help after Elijah sustained his head injury, and under Count VI as a class C felony for

making Elijah stand in the corner in the middle of the night. Montgomery, slip op. at 4.

The court reduced the conviction under Count III to a class B felony based upon double

jeopardy concerns. The court sentenced him to fifty-five years for murder, which was to

run concurrent with a four-year sentence on Count VI. Id. On Count III, the court

sentenced Montgomery to ten years to be served consecutive to the other counts.

Appellant’s Appendix at 44-45. Thus, Montgomery was sentenced to an aggregate term

of sixty-five years.2

       Montgomery brought a direct appeal challenging the sufficiency of the evidence of

both the murder and the class C felony neglect of a dependent convictions, and on

December 2, 2008, this court affirmed his murder conviction and reversed the class C

felony neglect of a dependent conviction. Montgomery, slip op. at 1, 9. His aggregate

sentence remained unchanged, however.

       Montgomery filed a petition for post-conviction relief, and the post-conviction

court held hearings on his petition on September 19, 2012, and October 31, 2012. On

October 12, 2013, the post-conviction court issued its “Findings of Fact and Conclusions

of Law Denying Post-Conviction Relief” (the “Post-Conviction Order”) in which it

granted in part and denied in part the relief sought by Montgomery.                     Appellant’s

Appendix at 417. The Post-Conviction Order stated in relevant part:




       2
         Montgomery subsequently pled guilty to possession of a firearm by a serious violent felon and
was sentenced to six years to be served concurrent with the murder conviction.
                                                  6
                        CONCLUSIONS OF LAW

                                   *****

        1(b). 404 (b) Evidence–Appellate counsel Turning now to
appellate counsel, the court does believe that there was both deficient
performance and prejudice as it relates to the presentation of the 404(b)
claim. This court first notes that included in the transcript provided to
appellate counsel was a 40 page transcription of the 404(b) hearing
conducted in this matter only 3 weeks prior to trial. In addition, on the day
of trial, trial counsel renewed her objections to the court’s 404(b) rulings
and offered up new case law . . . . Additionally, the Appellants [sic]
Appendix contained defendant’s lengthy Notice of Intent to Use 404(b)
Evidence (sighting [sic] appropriate case law) as well as the State’s Brief in
rebuttal . . . . Finally, trial counsel included as the first potential issue of
appeal in her pre-appeal form, what she believed to be the court’s erroneous
rulings as to the 404(b) evidence ultimately denying them a right to present
a defense. In spite of all these references, appellate counsel chose not to
address this issue.

                                   *****

. . . . Taken as a whole, it is well within the Court of Appeal’s [sic]
discretion and likely probable that they would rule some or all of the 404(b)
evidence admissible in this case.

. . . . The court finds given the extensive arguments, briefs and reference to
404(b) that this issue was significant and obvious from the face of the
record. . . . Although quite technically appellate counsel in this case
succeeded on a sufficiency claim as it related to [the neglect of a dependent
as a class C felony conviction], the court believes that as to this claim only,
sufficiency was the best course of action. As to Count I, Murder, however,
a sufficiency claim was clearly ‘insufficient,’ and defendant was prejudiced
by the deficient performance in failing to raise this significant and obvious
claim.

                                   *****

       3.     Overall Performance.

      As this claim relates to trial counsel, this court finds that the overall
performance of trial counsel was effective and in many instances superior.
However, the issue of waiver of the 404(B) [sic] issue is vexing. As this

                                       7
      claim relates to appellate counsel, this court finds that the overall
      performance of appellate counsel was ineffective.

             As noted in the findings of fact, this court finds that the preparation
      and execution of the appellate brief in this case was deficient. As to the
      two arguments presented (over the course of 3 pages), the first argument
      successfully challenged the sufficiency of the evidence on the conviction
      for class C felony neglect of a dependent. Montgomery received a
      concurrent four (4) year sentence on that count. Appellate counsel’s
      success in getting the conviction and sentence vacated on that count did not
      affect the aggregate sentence of 65 years. As to the one paragraph
      argument challenging the sufficiency of the murder conviction, appellate
      counsel did not cite any cases. Appellate counsel raised no evidentiary
      issues on appeal although there were two that were suggested and obvious
      from the record: 1) use of the crash test dummy; and 2) exclusion of 404(b)
      evidence. This court notes the latter as being the most appropriate and with
      a probability of success.

             The overall performance of appellate counsel was deficient and
      prejudiced the defendant.

                                       Judgment

             The law as it relates to the ineffective assistance of trial counsel is
      with the State and against [Montgomery].

             The law as it relates to the ineffective assistance of appellate counsel
      is with [Montgomery] and against the State.

             IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by
      the Court that the Petition for Post-Conviction Relief is hereby GRANTED
      in part and DENIED in part. Having found that appellate counsel was
      ineffective, this court orders that Montgomery be given a new direct appeal
      on his convictions for Count I, Murder, and Count III, Neglect of a
      Dependent. The issues on appeal are limited to issues related to the
      introduction of 404(b) evidence and sufficiency consistent with this court’s
      findings. The appellate division of the Marion County Public Defender’s
      Office is directed to file a Notice of Appeal within 30 days.

Id. at 436-438, 442-443.

      On October 22, 2013, Montgomery filed his notice of appeal under Cause No.

49A02-1310-PC-884 (“Cause No. 884”).         The notice of appeal stated the following

                                            8
regarding the appealed order: “State of Indiana v. Christopher M. Montgomery, Order for

Post-Conviction Relief Granting New Direct Appeal.” On November 5, 2013, the State

filed a notice of appeal under the same cause number. On December 17, 2013, this court

issued an order assigning a new “CR” cause number to Montgomery’s appeal, later

assigned as Cause No. 49A02-1312-CR-1039 (“Cause No. 1039”), while allowing the

State’s appeal to continue under Cause No. 884. The order also stayed Montgomery’s

appeal pending the completion of the State’s appeal. On January 13, 2014, the State filed

a Motion to Dismiss the Post-Conviction appeal, which this court granted on February 3,

2014. On February 27, 2014, this court issued an order lifting the stay and directing the

record from the underlying jury trial proceedings be transferred to Cause No. 1039.

                                      DISCUSSION

       Before addressing the issues raised by Montgomery, we discuss the propriety of

the post-conviction court’s order that Montgomery be granted a second direct appeal as a

result of its determination that he received ineffective assistance of appellate counsel. To

the extent that this appeal is rooted in underlying post-conviction proceedings, we

observe that such proceedings are “quasi-civil” in nature and “create[] a narrow remedy

for subsequent collateral challenges to convictions, which must be based on grounds

enumerated in the post-conviction rules.” Lambert v. State, 743 N.E.2d 719, 725-726

(Ind. 2001) (quoting Williams v. State, 724 N.E.2d 1070, 1076 (Ind. 2000) (citations

omitted), reh’g denied, cert. denied, 531 U.S. 1128, 121 S. Ct. 886 (2001)). Also, the

Indiana Supreme Court has declared repeatedly that “[t]he post-conviction procedures do

not provide a petitioner with a ‘super-appeal’ or opportunity to consider freestanding


                                             9
claims that the original trial court committed error. Such claims are available only on

direct appeal.” Id. at 726 (quoting Williams, 724 N.E.2d at 1076).

       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. Ben-Yisrayl v. State, 729 N.E.2d

102, 106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984), reh’g denied), reh’g denied, cert. denied, 534 U.S. 830, 122 S. Ct. 73

(2001). We apply the same standard of review to claims of ineffective assistance of

appellate counsel as we apply to claims of ineffective assistance of trial counsel.

Williams, 724 N.E.2d at 1078. 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). To meet the appropriate test for prejudice, the

petitioner must show that there is a reasonable probability that, but for counsel’s

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.

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.

       Also, ineffective assistance of appellate counsel claims fall into three categories:

(1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues

well. Bieghler v. State, 690 N.E.2d 188, 193-195 (Ind. 1997) (citing Lissa Griffin, The

Right to Effective Assistance of Appellate Counsel, 97 W. VA. L. REV. 1, 21-22 (1994)),

reh’g denied, cert. denied, 525 U.S. 1031, 119 S. Ct. 550 (1998).         Here, the post-


                                            10
conviction court concluded that Montgomery received ineffective assistance of appellate

counsel based upon the second category when counsel failed to raise the issue of the trial

court’s decision to exclude certain evidence pursuant to Ind. Evidence Rule 404(b). The

Indiana Supreme Court has observed regarding this class of ineffective assistance claims

that “[a]lthough the convict in this instance received appellate review of at least some

issues, the procedural prejudice from this type of error can still be formidable.” Bieghler,

690 N.E.2d at 193. The Court went on to observe that “[i]neffectiveness is very rarely

found in these cases” because “the decision of what issues to raise is one of the most

important strategic decisions to be made by appellate counsel,” and it noted that

“reviewing courts should be particularly deferential to counsel’s strategic decision to

exclude certain issues in favor of others, unless such a decision was unquestionably

unreasonable.” Id. at 193-194. The Court directed that “[i]n analyzing this sort of case”

the reviewing court, “under its performance analysis, first looks to see whether the

unraised issues were significant and obvious upon the face of the record,” and that “[i]f

so, that court then compares these unraised obvious issues to those raised by appellate

counsel, finding deficient performance only when ignored issues are clearly stronger than

those presented.”3 Id. at 194 (quotations omitted). The Court noted that “the reviewing

court should be particularly sensitive to the need for separating the wheat from the chaff

in appellate advocacy,” and it “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.” Id.


       3
         In so holding, the Bieghler Court adopted the approach espoused by the Seventh Circuit. 690
N.E.2d at 194 (citing Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)).
                                                11
       Where the reviewing court on post-conviction determines that ineffective

assistance of appellate counsel was rendered on direct appeal regarding a defendant’s

conviction, the proper remedy is to vacate the conviction and sentence imposed thereon.

See, e.g., Henley v. State, 881 N.E.2d 639, 653 (Ind. 2008) (holding that the defendant

received ineffective assistance of appellate counsel regarding a claim of insufficient

evidence to support an attempted murder conviction, reversing the post-conviction court

on that issue, and remanding with instructions to vacate the conviction and the sentence

imposed thereon).     We note that, unlike cases where a conviction is vacated for

insufficiency of the evidence and retrial is precluded based upon double jeopardy

principles, here Montgomery was found to have received ineffective assistance of

appellate counsel with regard to an evidentiary issue, and accordingly Montgomery is

subject to retrial.

       Indeed, this case is not unlike Gray v. State, 841 N.E.2d 1210 (Ind. Ct. App.

2006), trans. denied, in which we noted that when the reviewing court on post-conviction

determines that ineffective assistance of appellate counsel was rendered on direct appeal

regarding a defendant’s conviction, the proper remedy is to vacate the conviction and

sentence imposed thereon. In Gray, defendant Gray argued that “his appellate counsel

rendered deficient performance when she failed to raise the denial of the motion to sever

a charge of unlawful possession of a firearm by a [serious violent felon (“SVF”)] from

the charges of murder, attempted murder, and robbery,” noting that his appellate counsel

“erroneously concluded that the issue was not preserved.” 841 N.E.2d at 1213-1214.

Gray noted that trial counsel, prior to voir dire, “moved to sever the possession by a SVF


                                           12
count from the four other counts, noting that the court had discretion to do so where

concerns of fairness and undue prejudice arise,” that trial counsel “was concerned about

the ability of a defendant to receive a fair trial on the murder and attempted murder

charges if the jury was informed that the defendant is a ‘serious violent felon,’” and that

following the denial of trial counsel’s motion to sever and Gray’s subsequent conviction,

trial counsel wrote on the Pre-Appeal Form “under ‘potential issues for appeal’ only the

following: ‘Gray was also charged with unlawful possession of a firearm by a serious

violent felon. The court denied request for severance and to bifurcate so jury heard about

previous felony convictions during murder trial.’” Id. at 1214-1216. Appellate counsel

did not brief this issue and instead raised two issues and challenged a sentencing

enhancement and the sufficiency of evidence as to Gray’s attempted murder conviction.

Id. at 1216. This court affirmed Gray’s conviction. Id.

       Following the denial of Gray’s post-conviction petition, this court opined that

“neither issue raised in Gray’s direct appeal was particularly strong or groundbreaking”

and that “[c]onversely, the issue of severance/bifurcation of an SVF count from other

counts was truly undecided during the time of Gray’s trial and appeal.” Id. at 1217. We

noted that “[a]lthough trial counsel preserved the severance/bifurcation issue, appellate

counsel failed to raise the issue. She failed to do so despite the Pre-Appeal Form’s clear

directive, without having reviewed the relevant portion of the transcript, . . . [and] chose

instead two issues with ‘little chance of success.’” Id. at 1218 (quoting Fisher v. State,

810 N.E.2d 674, 677 (Ind. 2004)). We found that performance was accordingly deficient.

Id. at 1218-1219. Similarly, we found that prejudice was present, noting that we did not


                                            13
believe “that the evidence presented against Gray was ‘very strong’” and that “rather than

being presented with overwhelming evidence that Gray had committed the charged

violent crimes, the jury had to make some serious credibility determinations” and, in

doing so, “was informed that Gray was a SVF and was left to speculate as to which

violent felony or felonies Gray had already committed.” Id. at 1219-1220. We found

that “[c]onsequently, we can easily envision the jury’s determinations being tainted by

the references to Gray as a SVF” and that “had Gray’s appellate counsel raised the

severance/bifurcation issue, it is reasonably probable that reversal would have ensued . . .

.” Id. at 1220. We reversed the denial of Gray’s petition for post-conviction relief and

remanded the case for a new trial. Id.

        As noted above, in this instance the post-conviction court, although finding that

Montgomery’s appellate counsel was ineffective, did not vacate his conviction and

remand to the trial court for a new trial. Perplexingly, it instead simply ordered that

Montgomery be allowed to bring a second direct appeal and raise the issue previously

unaddressed by his initial appellate counsel.4 Such a step is improper because when a


        4
            Ind. Post-Conviction Rule 1(1)(b) provides:

        This remedy is not a substitute for a direct appeal from the conviction and/or the sentence
        and all available steps including those under Rule PC 2 should be taken to perfect such an
        appeal. Except as otherwise provided in this Rule, it comprehends and takes the place of
        all other common law, statutory, or other remedies heretofore available for challenging
        the validity of the conviction or sentence and it shall be used exclusively in place of
        them.

Additionally, Ind. Post-Conviction Rule 2(1)(a) provides:

        Required Showings. An eligible defendant convicted after a trial or plea of guilty may
        petition the trial court for permission to file a belated notice of appeal of the conviction or
        sentence if;

                  (1)     the defendant failed to file a timely notice of appeal;
                                                      14
post-conviction court makes a determination that ineffective assistance of appellate

counsel has been rendered, it necessarily finds under the prejudice prong that a

reasonable probability exists that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Regarding this standard, we note that when this

court determines that such “reasonable probability sufficient to undermine confidence in

the outcome” exists, it does not then order the issue to be briefed on a subsequent direct

appeal.    Rather, as demonstrated in Gray, the remedy is to vacate the defendant’s

conviction and, where proper, order a new trial. We do not believe that the remedy




                (2)      the failure to file a timely notice of appeal was not due to the
                         fault of the defendant; and

                (3)      the defendant has been diligent in requesting permission to file a
                         belated notice of appeal under this rule.

Thus, Montgomery’s instant appeal is not within the scope of Post-Conviction Rule 2. Moreover, we note
that Ind. Post-Conviction Rule 1(6), titled “Judgment,” provides as follows:

        The court shall make specific findings of fact, and conclusions of law on all issues
        presented, whether or not a hearing is held. If the court finds in favor of the petitioner, it
        shall enter an appropriate order with respect to the conviction or sentence in the former
        proceedings, and any supplementary orders as to arraignment, retrial, custody, bail,
        discharge, correction of sentence, or other matters that may be necessary and proper.
        This order is a final judgment.

(Emphasis added). The Post-Conviction Order is not “an appropriate order with respect to the conviction
or sentence” where it simply ordered that Montgomery be allowed to bring a second direct appeal briefing
a previously unraised issue. We are not aware of authority for such an order. But see Mason v. State, 689
N.E.2d 1233, 1235-1236 (Ind. 1997) (authorizing a second direct appeal at the request of the State
following an order by the U.S. Court of Appeals, Seventh Circuit, remanding to the district court with
instructions to grant a writ of habeas corpus “unless [the defendant] received a new trial or a second direct
appeal” on the basis that “appellate counsel’s performance was deficient because counsel failed to raise a
‘significant’ and ‘obvious’ issue for reasons that could not ‘be explained by any strategic decision,” in
which the Seventh Circuit noted that “it remained for an Indiana state court to decide whether [the
defendant’s] hearsay argument is persuasive . . .”); Shaw v. Wilson, 721 F.3d 908, 919-920 (7th Cir.
2013) (remanding to the U.S. District Court for the Southern District of Indiana with “instructions to issue
a writ of habeas corpus unless the State of Indiana grants [the defendant] a new appeal within 120 days”
on the basis that the defendant demonstrated ineffective assistance of appellate counsel, and noting that
“the relief to which [the defendant] is entitled is a new direct appeal”), reh’g denied, reh’g en banc
denied, cert. denied, 134 S. Ct. 2818 (2014).
                                                     15
afforded a defendant who demonstrates that a reasonable probability exists is changed

where the post-conviction court, rather than a court on appeal, determines that a

defendant received ineffective assistance of appellate counsel, because the relevant

inquiry is the same. Accordingly, barring an appeal by the State of the Post-Conviction

Order, there would be no need for this court to effectively re-analyze this question.

       The post-conviction court erred when it ordered that Montgomery be allowed to

bring a second direct appeal and brief an issue which, due to what it determined to be

ineffective assistance of appellate counsel, had not been briefed in his initial appeal.

Under these circumstances, however, we find the post-conviction court’s error did not

prejudice Montgomery’s substantial rights because, for the reasons discussed below, we

find that the trial court did not abuse its discretion when it excluded certain evidence.

Further, we prefer to decide issues on the merits. See, e.g., Shoultz v. State, 995 N.E.2d

647, 659 (Ind. Ct. App. 2013) (noting that “[w]hile we encourage practitioners and others

appearing before this Court to follow the precise instructions of the Appellate Rules

rather than simply the ‘spirit’ of the Rules, we also prefer to decide cases and issues on

the merits,” and addressing the merits of the defendant’s appeal), trans. denied.

Additionally, the State has not moved to dismiss this appeal, and in fact on January 13,

2014 the State moved to dismiss its appeal of the Post-Conviction Order, which this court

granted on February 3, 2014.       The State’s decision to dismiss its appeal allowed

Montgomery’s second direct appeal to proceed, which had been stayed pending the

State’s appeal of the Post-Conviction Order. Accordingly, we will address the issues

raised. See Collins v. State, 873 N.E.2d 149, 157 (Ind. Ct. App. 2007) (noting that “[t]his


                                            16
court will disregard technical errors or defects which did not prejudice the substantial

rights of a defendant” (quoting Brown v. State, 245 Ind. 604, 609, 201 N.E.2d 281, 283-

284 (1964) (citing Wright v. State, 237 Ind. 593, 147 N.E.2d 551 (1958)))), trans. denied.

                                             I.

       The first issue is whether the trial court abused its discretion by excluding certain

evidence. We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion.   Hardiman v. State, 726 N.E.2d 1201, 1203 (Ind. 2000).            An abuse of

discretion occurs where the trial court’s decision is clearly against the logic and effect of

the facts and circumstances presented. Id. “Errors in the admission or exclusion of

evidence are to be disregarded as harmless error unless they affect the substantial rights

of a party.” Fleener v. State, 656 N.E.2d 1140, 1141 (Ind. 1995) (citations omitted). In

other words, we will find an error in the exclusion of evidence harmless if its probable

impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as

not to affect the defendant’s substantial rights. Williams v. State, 714 N.E.2d 644, 652

(Ind. 1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195 (2000).

       Montgomery argues that he is entitled to present evidence that another person

committed the crime for which he is charged and that the court was not justified in its

decision to exclude “the evidence of a pattern of abuse by Courtney in this case.”

Appellant’s Brief at 16. In his brief, Montgomery summarizes the evidence presented at

the hearing on February 20, 2008, as follows:

       1. Three prospective defense witnesses, Dale Toon, Lucille Ewetuga, and
          Cecile Harrison, witnessed Courtney beating [Elijah] with a belt on
          March 23, a week before he died. [App. 227, Exhibits A, B, C].


                                             17
      a. Some of this evidence was admitted at trial. Dale Toon
         was the manager of the hotel. [Tr. 321]. He testified that
         a week before [Elijah] died, another hotel guest came to
         him to report that a baby was screaming, and a woman
         was “yelling and cursing.” [Tr. 323]. Toon went to
         investigate and could hear the crying and cursing from ten
         rooms away. [Tr. 323]. He waited about a minute outside
         the door before knocking. [Tr. 324]. Courtney opened the
         door and Toon asked her what was happening. [Tr. 324].
         Courtney said “this m-----f----- sh-t on himself and he
         knows how to ask when he [] wants to play a game, but
         doesn’t want to tell me when he goes and sh-ts on
         himself[.]” [Tr. 324]. Toon insisted on seeing “the baby”
         for himself to make sure he was all right. [Tr. 324-325].
         The child was crying but Toon did not see any injuries.
         [Tr. 329]. Toon told Courtney she needed to calm down
         or he would call the police. [Tr. 325]. Courtney
         responded “Well, it’s my kid. I’ll do what I want to do to
         him.” [Tr. 325]. Toon saw an adult male on the bed
         playing a game. [Tr. 326]. He was “90 percent sure” the
         man was not Christopher [Tr. 326], but he did not know
         who it was. [Tr. 328].

2. In October, 2004, Courtney’s son [Casey], then age 3, suffered a
   “substantial but closed depressed skull fracture” from being hit with a
   rock. [Tr. 547, App. 229, 405]. Courtney “elected not to [have Casey]
   undergo the [recommended] surgery despite multiple physicians
   counseling her otherwise.” [App. 405]. At the time, [Montgomery] was
   in prison for a different conviction. [Confidential Appendix /
   Presentence Investigation Report pages 5-6].

      a. The trial judge ruled that evidence about this injury was
         inadmissible because it was too remote in time, involved a
         different child, and that it was propensity evidence
         inadmissible under Ind. Evidence Rule 404(b). [Tr. 547-
         50].

3. Other witnesses had told the State in taped statements that Courtney
   would discipline [Elijah] by making him stand in the corner, tying his
   hands above his head to prevent him from sucking his thumb, and
   beating him for wetting his pants. [App. 227].

      a. Clamenta Twyman is [Montgomery’s] mother.
         [Confidential Appendix / Presentence Investigation Report

                                   18
   page 8]. She spoke to [Montgomery] or Courtney every
   day by telephone. [App. 227]. During a phone call in
   February or March 2007, she heard [Elijah] crying, and
   Courtney told her that she was punishing him by making
   him stand in the corner. [App. 227]. On one occasion in
   February, Courtney came home drunk and pulled out a
   braid of [Montgomery’s] hair. [App. 227].

      i. The trial court excluded the evidence from
         Clamenta Twyman on the grounds that it
         was “blatant hearsay” and only tended to
         show Courtney’s “propensity to do these
         types of acts.” [Tr. 533].

b. Christian Montgomery is [Montgomery’s] half-brother.
   [Confidential Appendix / Presentence Investigation Report
   page 9]. He saw [Elijah] lying on the floor in the hotel
   room with his hands tied, while [Montgomery] was not
   there. [App. 227]. Courtney told Christian “I had to start
   tying him up.” [App. 228].

      i. At the hearing on the admissibility of 404(b)
         evidence, the Court ruled that if the State
         presented evidence that Christopher tied
         [Elijah’s] hands, this evidence against
         Courtney would be admissible. [Tr. 535].
         The State agreed not to present testimony
         that Christopher tied [Elijah] up, nor
         photographs of the ligature marks on
         [Elijah’s] wrists. [Tr. 534-535]. The State
         amended the charging information to
         remove references to that allegation. [Tr.
         14-17].

c. Terry Robinson noticed a band-aid on [Elijah’s] head on
   March 25, 2007. [App. 228]. Courtney and [Casey] both
   said that [Elijah] had tripped and hit his head on a table.
   [App. 228]. In 2006, Courtney spanked [Elijah] for
   wetting his pants. On March 30, 2007, after Christopher
   was arrested, Courtney told Robinson “Chris didn’t do
   anything.” [App. 228].

      i. The trial court ruled that the band-aid
         evidence    was     “speculative”  and

                             19
          inadmissible. [Tr. 536]. Evidence that
          Courtney spanked [Elijah] for wetting his
          pants in 2006 was excluded as “too remote
          in time” and “goes to show that she’s a bad
          person.” [Tr. 536].

d. Brian Trammel saw Courtney “whuppin” [Elijah] at a
   Super Bowl party in February 2007. During the week
   before [Elijah’s] death, Courtney called Christopher
   “continuously” while he was out with Trammel buying a
   phone, accusing Christopher of being out with other
   women. [App. 228].

      i. The trial court ruled that the evidence about
         Courtney beating [Elijah] would only be
         relevant and admissible at trial if there was
         evidence that [Elijah’s] death was the result
         of a pattern of abuse, rather than the result of
         a single blow to the head. [Tr. 540-542].

e. In March, eight or nine days before [Elijah’s] death, Alicia
   Harris saw Courtney take out her anger with Christopher
   on the children by hitting them. [App. 228].

      i. The trial court ruled that this evidence about
         Courtney beating the children would only be
         admissible if the pathologist’s testimony
         showed a pattern of abuse that led to
         [Elijah’s] death. [Tr. 546].

f. Courtney admitted to Wanda Goldsmith in 2006 that she
   had lied to an investigator from Child Protective Services.
   [App. 228-229]. Courtney had been beating her children
   and someone called CPS, but the investigator left when
   Courtney told them she was “only beating the dog.”
   [App. 228-229].

      i. The trial court ruled that this evidence about
         Courtney beating the children would only be
         admissible if the pathologist’s testimony
         showed a pattern of abuse that led to
         [Elijah’s] death. [Tr. 547].



                              20
       4. Courtney’s father Lawrence Simpson had called the Department of
          Child Services twice in the two years before [Elijah’s] death, out of
          concern for his grandchildrens’ safety and Courtney’s behavior. [App.
          229]. Christopher was incarcerated at the time. [App. 229].

              i. The trial court ruled that this evidence would be
                 inadmissible unless there was evidence that a pattern of
                 beating resulted in [Elijah’s] death. [Tr. 550-551].

Id. at 11-15 (footnote omitted).

       In sum, with the exception of the proffered testimony of Clamenta Twyman,

Montgomery’s mother, which the court excluded as hearsay, the court’s decision to

exclude each of the remaining pieces of proffered evidence was based at least in part on

relevance. That is, the court ruled based upon Ind. Evidence Rule 401 that the proffered

testimony was not relevant. Ind. Evidence Rule 401 provides that “[e]vidence is relevant

if: (a) it has any tendency to make a fact more or less probable than it would be without

the evidence; and (b) the fact is of consequence in determining the action.” Here, the

bases for the court’s rulings were either that such evidence was too remote in time or was

offered to establish a pattern of abuse which was not the theory of the State’s case for

how Elijah died.

       In arguing that the trial court abused its discretion when it ruled to exclude the

evidence discussed above, Montgomery directs our attention to the Indiana Supreme

Court’s decision in Rohr v. State, 866 N.E.2d 242 (Ind. 2007), reh’g denied. In Rohr,

five-year-old Samuel Moore died four days after being taken to the hospital by Defendant

Rohr and Samuel’s mother Donna Moore, with whom Rohr had been living for about two

months. 866 N.E.2d at 243-244. Rohr was charged with murder as a result of Samuel’s

death, and at trial the State presented evidence that Samuel had sustained blunt force head

                                            21
trauma, a severe brain injury, and bruising on the back, front, and inside of his thighs, his

left elbow, his groin area, his chin, his waist, both sides of his bottom, his back, and his

penis and scrotum, which were also swollen.            Id. at 244.    The State’s evidence

demonstrated that both the defendant and Moore had engaged in regular corporal

punishment of Samuel and indicated that Moore had previously been investigated by the

Department of Job and Family Services in Belmont County, Ohio, for physical harm to

Samuel. Id. Prior to trial, the court granted a motion to exclude filed by the State

prohibiting Rohr from calling and presenting the testimony of two witnesses, Rosanne

Palmer and Melissa Scott. Id. at 245. Rohr was found guilty of murder and sentenced to

life without parole. Id. at 244.

       On appeal, the Court addressed what it determined to be the dispositive issue of

whether Rohr was denied a fair trial when the court excluded the testimony of Palmer and

Scott. The Court began its analysis by discussing the circumstances leading to the trial

court’s ruling as follows:

               On June 6, 2005, the trial court established a schedule that included:
       jury trial to begin August 1, 2005; all discovery and motions to be complete
       by June 30, 2005; and final witness and exhibit lists to be exchanged and
       filed by July 1, 2005. The scheduling order emphasized in boldface, all
       caps type: “ANY WITNESSES OR EXHIBITS NOT DISCLOSED BY
       THIS DATE, WILL ABSOLUTELY BE EXCLUDED AT TRIAL.”
       Appellant’s App’x. at 62. On the discovery deadline date, June 30, one day
       before the July 1 deadline for filing witness and exhibit lists, the State filed
       its witness and exhibit lists along with a notice that it had on that date
       “discovered” to the defendant’s counsel 45 items of discovery, which
       consisted of 853 pages plus 30 photographs, 2 video tapes, 3 CDs, and 1
       audio tape. Id. at 95. The State certified that a copy of the notice was
       mailed to the defendant’s attorney on June 30, 2005. On the same date, the
       State also filed a motion in limine seeking to prohibit the defense from
       “eliciting any evidence” regarding both “a welfare report” prepared in April
       2002 by the “Belmont (Ohio) County Department of Job & Family

                                             22
       Services,” and “[a]ny incidents or allegations referred to” in the report. Id.
       at 98. The subsequently excluded witnesses, Melissa Scott and Roseanne
       Palmer, were not listed on the State’s witness list, but their names appeared
       on pages 45, 47, and 48 of the Belmont County Department of Job and
       Family Services Report, one of the items the State furnished to the defense
       on June 30. Id. at 95, 428, 430, 431. The defendant’s witness and exhibit
       list, filed on July 1, did not include the names of Roseanne Palmer and
       Melissa Scott, nor did it list the Belmont County report as a defense exhibit.
       But it did include “any person named in the discovery provided to the
       defendant” and any discovery or exhibit “provided by the State in its
       discovery.” Id. at 100. On July 14, two weeks before the commencement
       of trial, the court denied the State’s June 30 motion in limine “insofar as it
       seeks to prohibit the introduction of evidence relating to Donna Moore’s
       alleged abuse of Samuel in the State of Ohio in 2002.” Id. at 119.

              The defendant first named Roseanne Palmer and Melissa Scott as
       defense witnesses in his Amended Witness and Exhibit List filed on July
       28. See id. at 199-201. The next day, the State filed its motion to exclude
       the two witnesses, arguing that they “were not listed as witness [sic] for the
       defense until . . . approximately thirty (30) days past the discovery deadline
       date and four (4) days before the scheduled jury trial.” Id. at 217. The
       State’s request did not seek a continuance but sought only the exclusion of
       the witnesses’ testimony.          The State raised no other objection.
       Notwithstanding the defendant’s objection to the motion citing the State’s
       delay in providing the report that included the names of Roseanne Palmer
       and Melissa Scott until just one day before the final witness lists were due,
       and asserting that the defense could not determine its final defense strategy
       or witnesses until review of the State’s voluminous information, the trial
       court, on the first day of trial, granted the State’s motion to exclude these
       witnesses.

Id. at 244-245.

       The Court reversed the trial court’s ruling on the motion to exclude and remanded

for a new trial. Id. at 249. The Court observed that trial courts have discretion to exclude

belatedly disclosed witnesses “when there is evidence of bad faith on the part of counsel

or a showing of substantial prejudice to the State.” Id. at 245 (quoting Williams, 714

N.E.2d at 651). It noted that, “[s]ignificantly,” the State in this case never asserted that

the defense acted in bad faith and that “[i]f the four days before trial were truly

                                            23
insufficient for reasonable investigation by the State, a short continuance would have

been the appropriate remedy.” Id. at 246. The Court found the State knew of the

challenged witnesses at some point before June 30th when it disclosed their names to the

defense and that the record did not suggest that the defense had prior knowledge of them.

Id. It further found that “[t]he potential importance of the witnesses’ testimony to the

defense may be inferred from the State’s efforts to exclude their testimony,” noting

specifically that the State filed a motion in limine seeking to prohibit the introduction of

evidence related to Donna Moore’s alleged abuse of Samuel in 2002 which contained

“entries to the effect that Melissa Scott and Roseanna Palmer had witnessed Donna

Moore’s abusive treatment of Samuel since he was six months old” and that:

       Because of the State’s awareness of these witnesses and their importance
       and its opportunity to interview or depose them for more than a month
       before trial, we find that permitting them to testify would not have resulted
       in substantial or irreparable prejudice to the State. To the contrary, the
       exclusion of these witnesses resulted in substantial prejudice to the defense,
       as further described below. We further find that the defendant’s delay in
       adding these witnesses to his witness list was neither purposeful nor
       intentional. The trial court should not have prevented the defense from
       calling Roseanne Palmer and Melissa Scott as witnesses.

Id.

       The Court further noted that such errors are subject to harmless error analysis and

that the State asserted harmless error because “evidence to be provided by the excluded

witnesses was placed before the jury through Moore’s own testimony and the redacted

version of the investigation report made by the authorities in Ohio.” Id. at 246-247

(internal quotations omitted). Rohr argued that Moore’s testimony acknowledged the

allegations but “did not actually admit to the incidents for which she was being


                                            24
investigated in Ohio,” and indeed that she denied the conduct to which Scott and Palmer

would have testified to witnessing. Id. at 247. The State at trial “presented considerable

evidence of Samuel’s extensive injuries, most of which were not directly involved in

causing his death,” including injuries to Samuel’s “thighs, his left elbow, his groin area,

his chin, his waist, both sides of his bottom, his back, and his penis and scrotum.” Id.

(emphasis added). The Court held that “[i]n light of the State’s evidence, it was proper

for the defense to seek to support its claim that Samuel’s extensive injuries, purportedly

the result of a pattern of child abuse, were caused by Donna Moore, not the defendant,”

and that accordingly such error was not harmless. Id. (emphasis added).

       The State argues that Rohr is distinguishable because evidence was presented in

that case of a pattern of abuse and that we should follow this court’s opinion in Lush v.

State, 783 N.E.2d 1191 (Ind. Ct. App. 2003), and affirm the trial court.         In Lush,

Defendant Lush was at home in Columbus, Indiana, with his two-year old son and his

two-year old stepdaughter, H.R., while H.R.’s mother Angela was working. 783 N.E.2d

at 1193. H.R. appeared fine when Angela left for work, as well as when she returned

home for lunch at approximately 11:00 a.m. Id. Lush and the children drove Angela

back to work at 11:15 a.m., and then he and the children returned home. Id. Sometime

after 12:30 p.m., a neighbor observed Lush leaving the house with H.R. in his arms and

moving at a normal pace. Id. Lush called Angela and asked her to meet him in front of

her work. Id. A coworker of Angela’s was sitting outside from about 1:30 p.m. to 1:45

p.m., and during that time she observed Lush drive up to the building at a fairly normal

speed, that Angela spoke with Lush at the car, and that then Angela hurried back inside


                                            25
and ran back out to the car after a few minutes. Id. at 1193-1194. While Angela was

inside, the coworker also observed Lush shake H.R., who was in his lap, as if to wake

her. Id. at 1194. Angela and Lush then left in the car fairly quickly. Id.

          H.R. arrived at the hospital at approximately 2:00 p.m. and was unconscious and

not breathing. Id. She was flown to Riley Hospital for surgery to relieve the pressure on

her brain from an acute subdural hematoma that was collecting blood and was rapidly

herniating her brain stem. Id. Doctors discovered that H.R. had sustained linear bruising

on her legs and her back, that her eyes were swollen and she had retinal hemorrhaging

not consistent with an accidental injury, and that she also exhibited substantial bruising

on her face and neck. Id. The doctors noted that she had fading bruises on her arms and

chest, but the coloration of the other bruises indicated that they had been formed recently.

Id. The doctors noted that the acute subdural hematoma likely was inflicted by an

angular momentum that rendered H.R. immediately unconscious. Id. They noted that

“[t]hose injuries appeared to have been inflicted within a few hours prior to H.R.’s arrival

at the emergency room in Columbus, and a maximum of six hours prior to her arrival

there.”     Id.   H.R. was in a medically induced coma for two weeks and sustained

permanent damage to her brain. Id. Lush was found guilty by jury trial of aggravated

battery and neglect of a dependent, both as class B felonies. Id.

          On appeal, Lush argued that the court erred by excluding the testimony of two

witnesses, Patricia Goodlow and Shauna Smith, regarding Angela’s treatment of H.R., as

well as Angela’s son’s behavior, as not being relevant. Id. This court affirmed the

rulings of the trial court, noting first that Smith’s testimony related to Angela’s son’s


                                             26
behavior was irrelevant because her son “was not present at the house at the time that

H.R. received her life-threatening injuries. Therefore, any testimony concerning the

son’s behavior was irrelevant to the charges, aggravated battery and neglect of a

dependent, against [Lush].” Id. at 1195. The court next addressed certain testimony

Lush attempted to elicit from Smith “that Angela frequently picked up H.R. by the arms”

and held that such “testimony is irrelevant to the charges, aggravated battery and neglect

of a dependent, against [Lush]. The bruising on H.R.’s arms was not the life-threatening

injury that was the subject of the aggravated battery charge against [him].” Id. Last, the

court addressed testimony Lush attempted to elicit from Goodlow “that she did not

approve of Angela’s parenting skills[] and had problems with Angela’s care of H.R.

before Defendant became a member of the household,” and it again found such testimony

to be irrelevant “because it had no relevance to the instant charges against [Lush].” Id.

       Montgomery argues that the Lush case is distinguishable because in Lush the

child’s mother was not home and thus could not have caused the deadly injuries to the

child herself. We find, however, that under these circumstances such a distinction is

immaterial. Here, in making its evidentiary rulings five days before the jury trial, the trial

court did so based upon what it understood to be the State’s theory of the case that

Elijah’s death was caused by the single injury of being thrown to the ground, but it

recognized that its rulings were “preliminary” and “certainly subject to change as [it]

listen[ed] to the evidence . . . .” Transcript at 552. As noted above, the evidence

presented at trial included testimony by Detectives Rogers and Kennedy in which they

recounted an interview they conducted with Montgomery and testified that Montgomery


                                             27
initially denied any wrongdoing. They testified that later in the interview, Montgomery

began talking about the date in question and eventually admitted that he “picked Elijah up

and dropped him” to punish Elijah. Id. at 222. Montgomery first indicated that he

dropped Elijah from a height of “just above his knees,” but after Detective Kennedy told

him that the injuries did not match what Montgomery was describing, Montgomery gave

two other explanations in which both the height and the manner in which Elijah was

thrown were changed. Id. In Montgomery’s second explanation, he demonstrated that he

held Elijah from a “mid torso” height and let go, but in his third explanation he

demonstrated that he picked Elijah up to “his head level and tossed.” Id. at 225. Further,

Montgomery does not point to the record demonstrating that he ever attempted to admit

any of the challenged evidence at the jury trial.

       We find that, similar to the evidence excluded in Lush, the challenged evidence

was properly excluded as not relevant because such evidence was in the nature of a

pattern of abuse on the part of Courtney and was irrelevant to the charges against

Montgomery. Indeed, the Rohr case, upon which Montgomery relies, is distinguishable

on this very basis because in Rohr evidence of a pattern of abuse by the mother Donna

Moore had been introduced by the State, which led the Indiana Supreme Court to hold

specifically that “[i]n light of the State’s evidence, it was proper for the defense to seek to

support its claim that Samuel’s extensive injuries, purportedly the result of a pattern of

child abuse, were caused by Donna Moore, not the defendant,” and that accordingly such

error was not harmless. 866 N.E.2d at 247 (emphasis added).




                                              28
        Here, the trial court recognized that the sole issue at trial was who inflicted the

blunt force trauma that killed Elijah and found that evidence of Courtney’s pattern of

abuse of Elijah was not admissible to show that she committed the offenses unless

Montgomery could show that Elijah’s death was caused by a pattern of abuse. He failed

to do so, and indeed evidence was presented that he confessed to detectives that he threw

Elijah to the ground in a manner consistent with the injury causing death. Montgomery

did not attempt to admit evidence of Courtney’s pattern of abuse following the pretrial

hearing. Finally, to the extent the court excluded the testimony of Clamenta Twyman as

hearsay, including that Twyman would have testified that Courtney told her that she was

punishing Elijah by making him stand in a corner, we note that Montgomery does not

specifically challenge the court’s ruling on that proffered testimony in his brief. We also

find that such evidence was not relevant to determining who caused the fatal injury. We

conclude that the court thoughtfully parsed the prospective evidence at the hearing on

February 20, 2008, and that it did not abuse its discretion in excluding certain evidence.

                                                   II.

        The next issue is whether Montgomery’s conviction of neglect of a dependent as a

class B felony violates double jeopardy principles.5 The Indiana Constitution provides

that “[n]o person shall be put in jeopardy twice for the same offense.” IND. CONST. art. 1,

§ 14. “Indiana’s Double Jeopardy Clause . . . prevent[s] the State from being able to

        5
          The State argues that we should not address Montgomery’s double jeopardy issue because this
appeal stems from an order of the post-conviction court and is limited to the evidentiary issue addressed
in Part I. We note, however, that this court must address double jeopardy violations sua sponte where
they exist because “a double jeopardy violation, if shown, implicates fundamental rights.” Smith v. State,
881 N.E.2d 1040, 1047 (Ind. Ct. App. 2008). For the reasons discussed below, we find that
Montgomery’s conviction for neglect of a dependent as a class B felony violates double jeopardy
principles, and accordingly we shall address the issue.
                                                   29
proceed against a person twice for the same criminal transgression.” Hopkins v. State,

759 N.E.2d 633, 639 (Ind. 2001) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind.

1999)). The Indiana Supreme Court has held that “two or more offenses are the ‘same

offense’ in violation of Article I, Section 14 of the Indiana Constitution, if, with respect

to either the statutory elements of the challenged crimes or the actual evidence used to

convict, the essential elements of one challenged offense also establish the essential

elements of another challenged offense.” Richardson, 717 N.E.2d at 49.

       In addition, Indiana courts “have long adhered to a series of rules of statutory

construction and common law that are often described as double jeopardy, but are not

governed by the constitutional test set forth in Richardson.” Guyton v. State, 771 N.E.2d

1141, 1143 (Ind. 2002) (quoting Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002) (citing

Richardson, 717 N.E.2d at 55 (Sullivan, J., concurring))). “Even where no constitutional

violation has occurred, multiple convictions may nevertheless violate the ‘rules of

statutory construction and common law that are often described as double jeopardy, but

are not governed by the constitutional test set forth in Richardson.’” Vandergriff v. State,

812 N.E.2d 1084, 1088 (Ind. Ct. App. 2004) (quoting Pierce, 761 N.E.2d at 830), trans.

denied. As enumerated in Justice Sullivan’s concurrence in Richardson and endorsed by

the Indiana Supreme Court in Guyton, five additional categories of double jeopardy exist:

(1) conviction and punishment for a crime which is a lesser-included offense of another

crime for which the defendant has been convicted and punished; (2) conviction and

punishment for a crime which consists of the very same act as another crime for which

the defendant has been convicted and punished; (3) conviction and punishment for a


                                            30
crime which consists of the very same act as an element of another crime for which the

defendant has been convicted and punished; (4) conviction and punishment for an

enhancement of a crime where the enhancement is imposed for the very same behavior or

harm as another crime for which the defendant has been convicted and punished; and (5)

conviction and punishment for the crime of conspiracy where the overt act that

constitutes an element of the conspiracy charge is the very same act as another crime for

which the defendant has been convicted and punished. See Guyton, 771 N.E.2d at 1143;

Richardson, 717 N.E.2d at 55-56 (Sullivan, J., concurring).

      Montgomery argues that his conviction under Count III for neglect of a dependent

as a class B felony must be reduced to a class D felony based upon the case of Strong v.

State, 870 N.E.2d 442 (Ind. 2007). In Strong, Defendant Strong was convicted for the

murder of his girlfriend’s three-year-old daughter, Taranova Glick, and neglect of a

dependent resulting in the same child’s death, as a class A felony. 870 N.E.2d at 442.

He was sentenced to consecutive terms of sixty-five years for murder and fifty years for

class A felony neglect. The Indiana Supreme Court observed on appeal that “[u]nder the

rules of statutory construction and common law that constitute one aspect of Indiana’s

double jeopardy jurisprudence, where one conviction ‘is elevated to a class A felony

based on the same bodily injury that forms the basis of [another] conviction, the two

cannot stand.’” Id. at 443 (quoting Pierce, 761 N.E.2d at 830 (Ind. 2002)). The Court

noted that the murder count charged Strong with knowingly killing Taranova and the

neglect of a dependent resulting in death count “alleged that [Strong], who had care of

three-year-old Taranova Glick as a dependent, knowingly placed her ‘in a situation


                                           31
endangering her life or health,’ allowing her ‘to languish and suffer without medical

treatment knowing she had been gravely injured, all of which resulted in the death of

Taranova Glick.’” Id.

       The State in Strong argued that any double jeopardy violation “may be adequately

addressed by reducing the neglect count from a class A to a class B felony” because “the

murder and neglect convictions ‘were based on two completely different sets of actions

as the murder happened when [d]efendant placed his knee into Taranova’s abdomen and

the neglect happened thereafter when he did not seek medical attention.’” Id. The Court

observed the relevant statute, Ind. Code § 35-46-1-4,6 and noted that “[t]he offense of



       6
          We note that the incident in question occurred in March 2007 and that the version of Ind. Code
§ 35-46-1-4 applicable to Montgomery is substantially similar to the version in Strong and provides in
relevant part as follows:

       (a)     A person having the care of a dependent, whether assumed voluntarily or because
               of a legal obligation, who knowingly or intentionally:

               (1)     places the dependent in a situation that endangers the
                       dependent’s life or health;
               (2)     abandons or cruelly confines the dependent;
               (3)     deprives the dependent of necessary support; or
               (4)     deprives the dependent of education as required by law;

               commits neglect of a dependent, a Class D felony.

       (b)      However, the offense is:

               (1)     a Class C felony if it is committed under subsection (a)(1),
                       (a)(2), or (a)(3) and:

                       (A)     results in bodily injury . . .

                                                 *****

               (2)     a Class B felony if it is committed under subsection (a)(1),
                       (a)(2), or (a)(3) and results in serious bodily injury;

               (3)     a Class A felony if it is committed under subsection (a)(1),
                       (a)(2), or (a)(3) by a person at least eighteen (18) years of age
                                                    32
neglect of a dependent, absent a resulting injury, is defined as a class D felony.” Id.

(citing Ind. Code § 35-46-1-4(a)). It further noted that this crime “is a class C felony

when it ‘results in bodily injury’ . . . a class B felony when it ‘results in serious bodily

injury,’ and a class A felony when it ‘results in the death of a dependent who is less than

fourteen (14) years of age.’” Id. (quoting Ind. Code §§ 35-46-1-4(b)(1)-4(b)(4)). Based

upon this statutory language, the Court disagreed with the State’s argument that

reclassifying the neglect of a dependent conviction as a class B felony would alleviate the

double jeopardy issue, stating that “[s]uch a recharacterization of the charges . . . does not

eliminate the fact that both charged offenses would still be based on the same bodily

injury.” Id. at 444. It specifically found that “[t]he injuries urged to support the ‘serious

bodily injury’ necessary for class B neglect are the same injuries, the same harm, that

resulted in the child’s death and are the basis of the murder charge.” Id. The Court held

that “[o]nly when deemed a class D offense, which does not include any element of

bodily injury, does the conviction of neglect of a dependent satisfy the common

law/statutory construction aspect of Indiana’s double jeopardy jurisprudence,” and it

remanded “to the trial court to reduce the conviction for neglect of a dependent from a

class A felony to a class D felony, for which the sentence shall be a term of three years,

to be served consecutively to the sentence for murder.” Id.


                       and results in the death of a dependent who is less than fourteen
                       (14) years of age; and

               (4)      a Class C felony if it is committed under subsection (a)(2) and
                       consists of cruel or unusual confinement or abandonment.

(subsequently amended by Pub. L. No. 15-2007, § 1 (eff. July 1, 2007); Pub. L. No. 109-2007, § 1 (eff.
July 1, 2007); Pub. L. No. 6-2012, § 227 (eff. Feb. 22, 2012); Pub. L. No. 193-2013, § 6 (eff. July 1,
2013); Pub. L. No. 158-2013, § 550 (eff. July 1, 2014); Pub. L. No. 168-2014 (eff. July 1, 2014)).
                                                 33
       We find that the Court’s reasoning in Strong applies with equal force to

Montgomery’s neglect of a dependent conviction. As in that case, Montgomery was

found guilty by the jury of neglect of a dependent as a class A felony for causing the

death of Elijah. The court, based on double jeopardy concerns, entered the conviction as

a class B felony for failing to seek immediate medical help after Elijah sustained the head

injury. However, that serious bodily injury was the same injury which led to Elijah’s

death. Thus, the court should have entered Montgomery’s conviction on Count III as a

class D felony, which applies to the crime of neglect of a dependent without any element

of bodily injury. We therefore remand to the trial court with instructions to reduce

Montgomery’s conviction under Count III from a class B felony to a class D felony and

to enter a sentence of three years to be served consecutive to Montgomery’s murder

sentence, for an aggregate sentence of fifty-eight years.

                                      CONCLUSION

       For the foregoing reasons, we affirm Montgomery’s conviction for murder under

Count I, reverse his conviction for neglect of a dependent as a class B felony under Count

III, and remand with instructions to enter a conviction under Count III for neglect of a

dependent as a class D felony and to sentence him to three years thereon, to be served

consecutive to his conviction for murder under Count I.

       Affirmed in part, reversed in part, and remanded.

BARNES, J., and BRADFORD, J., concur.




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