                                                                               FILED
                                                                           Apr 05 2016, 8:35 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Stephen T. Owens                                            Gregory F. Zoeller
Public Defender of Indiana                                  Attorney General of Indiana
Laura L. Volk                                               Karl M. Scharnberg
Deputy Public Defender                                      Deputy Attorney General
Indianapolis, Indiana                                       Indianapolis, Indiana


                                             IN THE
     COURT OF APPEALS OF INDIANA

Jennings Daugherty,                                         April 5, 2016
Appellant-Petitioner,                                       Court of Appeals Case No.
                                                            89A01-1510-PC-1532
         v.                                                 Appeal from the Wayne Superior
State of Indiana,                                           Court

Appellee-Respondent.                                        The Honorable Gregory A. Horn,
                                                            Judge
                                                            Trial Court Cause No.
                                                            89D02-1210-PC-10



Riley, Judge.




Court of Appeals of Indiana | Opinion 89A01-1510-PC-1532 | April 5, 2016                           Page 1 of 20
                                     STATEMENT OF THE CASE

[1]   Appellant-Petitioner, Jennings Daugherty (Daugherty), appeals the post-

      convictions court’s denial of his petition for post-conviction relief.


[2]   We affirm, in part, reverse, in part, and remand for resentencing.


                                                      ISSUES

[3]   Daugherty raises two issues on appeal, which we restate as follows:


      (1)      Whether Daugherty was denied the effective assistance of appellate

               counsel where his counsel failed to argue that his two consecutive

               sentences for unlawful possession of a firearm by a serious violent felon

               (SVF) convictions constituted an impermissible double enhancement;

               and


      (2)      Whether Daugherty was denied the effective assistance of appellate

               counsel where his counsel failed to argue that his aggregate sentence of

               33 years exceeded the statutory limitation for consecutive sentences

               arising out of a single episode of criminal conduct.


                            FACTS AND PROCEDURAL HISTORY

[4]   We adopt this court’s statement of facts and procedural history as set forth in

      our memorandum decision issued in Daugherty’s direct appeal, Daugherty v.

      State, No. 89A01–1010–CR–520 (Ind. Ct. App. May 9, 2011), trans. vacated,

      (internal citations to the record omitted):



      Court of Appeals of Indiana | Opinion 89A01-1510-PC-1532 | April 5, 2016   Page 2 of 20
         At 2:48 a.m. on May 26, 2007, Captain Thomas Porfidio
         [(Captain Porfidio)] of the Richmond Police Department was
         dispatched to Bertie’s Bar in Richmond upon receiving a
         complaint of a bar fight. Upon arriving, Captain Porfidio spoke
         with the bartender who indicated that Daugherty had shoved her.
         The bartender further indicated that Daugherty was sitting in a
         van that was parked across the street from the bar, and requested
         that Daugherty be banned from returning to the bar. The
         bartender indicated, however, that she did not wish to press
         charges against Daugherty.


         After speaking to the bartender, Captain Porfidio approached the
         van in which Daugherty was sitting in the front passenger seat.
         Captain Porfidio observed four individuals, including Daugherty,
         in the van. By this time, Officer Kevin Smith [(Officer Smith)],
         who had also responded to the scene, was speaking to Daugherty.
         During the course of his conversation with Daugherty,
         Officer Smith asked Daugherty to step out of the van.
         Captain Porfidio and Officer Smith observed as Daugherty
         stumbled and nearly fell while attempting to get out of the van.
         Daugherty also exhibited multiple signs of intoxication, including
         the strong odor of alcohol; red, bloodshot, and watery eyes;
         thick-tongued, slow speech; and slow, fumbling manual
         dexterity. Both Captain Porfidio and Officer Smith determined
         based on their training as police officers that Daugherty was
         intoxicated and, thus, incapable of driving. The officers
         instructed one of the other individuals in the van to drive
         Daugherty home where he could “sleep it off.”


         Forty-seven minutes later, at 3:35 a.m., Captain Porfidio was
         patrolling another area of Richmond when he saw the van in
         which Daugherty was earlier sitting. Captain Porfidio pulled
         alongside the van at a traffic light and observed that Daugherty
         was driving the vehicle. Captain Porfidio activated his
         emergency lights and initiated a traffic stop. Initially, Daugherty
         pulled over to the curb, but started to slowly drive away as



Court of Appeals of Indiana | Opinion 89A01-1510-PC-1532 | April 5, 2016       Page 3 of 20
         Captain Porfidio opened the door of his marked police cruiser.
         Captain Porfidio closed his door and followed Daugherty until
         he again pulled over to the curb. Daugherty attempted to slowly
         drive away a second time as Captain Porfidio opened his cruiser
         door. Daugherty pulled into a parking lot where he again
         stopped, only to slowly drive away as Captain Porfidio again
         attempted to approach his vehicle. Daugherty stopped the van
         when he could no longer drive forward without driving into a
         building.


         Officers Smith and Ami Miller [(Officer Miller)] arrived as
         Captain Porfidio approached the driver’s side of the van and
         asked to see Daugherty’s identification. In attempting to comply
         with Captain Porfidio’s request, Daugherty fumbled with his
         wallet and dropped it into his lap. Captain Porfidio shined his
         flashlight on the wallet and observed the “butt-end” of a pistol
         sticking up from between Daugherty’s legs. Captain Porfidio
         called out, “gun,” stepped back, and drew his service weapon.
         At the same time, Officer Miller drew her taser, stepped toward
         the vehicle, and tased Daugherty.


         Captain Porfidio pulled Daugherty out of the vehicle while the
         taser was still cycling, and the pistol that was in Daugherty’s lap
         fell to the ground and was recovered by police. Police also
         recovered a rifle that was found on the front floorboard of
         Daugherty’s vehicle. The rifle was within reach of the driver’s
         seat where Daugherty had been sitting. Both weapons were
         loaded. Daugherty was taken to a local hospital where he was
         hostile to the officers. Daugherty [spat] at the officers, threatened
         to kill them and their families, and threatened to rape their wives.
         The officers later testified that Daugherty’s threats put them in
         fear for both their personal safety and their families’ safety.


         Later that day, Daugherty was charged with Class A
         misdemeanor carrying a handgun without a license, Class D
         felony intimidation[, Ind. Code § 35–45–2–1(a)(2); (b)(1)(B)(i)


Court of Appeals of Indiana | Opinion 89A01-1510-PC-1532 | April 5, 2016     Page 4 of 20
         (2006)], Class D felony operating a motor vehicle while
         intoxicated, Class D felony resisting law enforcement, and two
         counts of Class B felony possession of a firearm by a serious
         violent felon[, I.C. § 35-47-4-5(c)]. The State further alleged that
         the Class A misdemeanor carrying a handgun charge should be
         enhanced to a Class C felony because Daugherty had a prior
         felony conviction. Daugherty was also alleged to be a habitual
         offender. On August 14, 2009, Daugherty filed a motion to
         suppress the evidence recovered following what he alleged was
         an illegal traffic stop by Captain Porfidio. The trial court denied
         Daugherty’s motion to suppress on February 16, 2010, and
         subsequently denied his request that the ruling be certified for
         interlocutory appeal.


         During an April 9, 2010 pre-trial hearing, Daugherty waived his
         right to a jury trial and indicated that he would stipulate to being
         a habitual offender if convicted of the underlying crimes.
         Daugherty filed a second motion to suppress on April 13, 2010.
         Daugherty failed to appear on the morning of his April 19, 2010
         bench trial, and the trial was conducted, over his counsel’s
         objection, without Daugherty present. The State dismissed the
         resisting law enforcement charge. Upon reviewing the evidence
         presented by the parties, the trial court denied Daugherty’s
         second motion to suppress and found Daugherty guilty of the
         remaining counts as charged.


         On July 20, 2010, the State requested permission to amend its
         habitual offender allegation by replacing two of Daugherty’s
         alleged felony convictions with different felony convictions
         because the State subsequently learned that the two alleged
         felony convictions had previously been reversed by the Indiana
         Supreme Court. Following a hearing, the trial court granted the
         State’s request and allowed the amendment. Daugherty
         subsequently admitted to being a habitual offender.




Court of Appeals of Indiana | Opinion 89A01-1510-PC-1532 | April 5, 2016        Page 5 of 20
               At sentencing, the State moved to set aside the Class C felony
               carrying a handgun without a license conviction out of double
               jeopardy concerns. The trial court imposed a three-year sentence
               for the intimidation conviction that was to run concurrently to a
               one-and-one-half-year sentence for the operating while
               intoxicated conviction, but consecutively to the two consecutive
               fifteen-year sentences for each of the possession of a firearm by a
               serious violent felon convictions. The trial court enhanced
               Daugherty’s sentence by an additional twenty years as a result of
               his status as a habitual offender, for an aggregate fifty-three-year
               sentence.


[5]   On May 9, 2011, we affirmed the trial court’s judgment. On October 29, 2012,

      Daugherty filed a pro se petition for post-conviction relief, which was amended

      by his counsel on July 15, 2014. On December 3, 2014, the parties jointly filed

      an Agreement to Vacate Daugherty’s Habitual Offender Finding and Resulting

      Enhanced Sentence on Count V. On December 8, 2014, the trial court accepted

      the agreement and reduced Daugherty’s aggregate sentence to 33 years. On

      July 8, 2015, the post-conviction court held an evidentiary hearing on

      Daugherty’s petition for post-conviction relief. Daugherty’s appellate counsel

      was the sole witness at the hearing. He testified that he raised four issues on

      appeal: (1) the trial court’s denial of Daugherty’s motion to suppress

      constituted an abuse of the court’s discretion; (2) Daugherty’s multiple

      convictions for possession of a firearm by an SVF violated the prohibition

      against double jeopardy; (3) the trial court erred in allowing the State to amend

      the habitual offender information; and (4) Daugherty’s sentence was

      inappropriate. Out of these issues, in appellate counsel’s opinion, the double

      jeopardy violation and the inappropriateness of Daugherty’s sentence claims



      Court of Appeals of Indiana | Opinion 89A01-1510-PC-1532 | April 5, 2016        Page 6 of 20
      were the strongest arguments. He testified that he did not consider raising a

      claim that the consecutive sentences for two SVF convictions constituted an

      impermissible double enhancement and a claim that Daugherty’s aggregate

      sentence exceeded the statutory limitation for consecutive sentences arising out

      of a single episode of criminal conduct. On September 3, 2015, the post-

      conviction court entered its Findings of Fact and Conclusions of Law, denying

      the requested relief.


[6]   Daugherty now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                               I. Standard of Review


[7]   In a post-conviction proceeding, the petitioner must establish the grounds for

      relief by a preponderance of the evidence. Ind. Post–Conviction Rule

      1(5); Overstreet v. State, 877 N.E.2d 144, 151 (Ind. 2007). When challenging the

      denial of post-conviction relief, the petitioner appeals a negative judgment.

      Overstreet, 877 N.E.2d at 151. To prevail, the petitioner must show that the

      evidence leads unerringly and unmistakably to a decision opposite that reached

      by the post-conviction court. Id. We will disturb the post-conviction court’s

      decision only where the evidence is without conflict and leads to but one

      conclusion and the post-conviction court reached the opposite

      conclusion. Henley v. State, 881 N.E.2d 639, 643–44 (Ind. 2008).


[8]   Where the post-conviction court enters findings of fact and conclusions of law,

      as in the instant case, we do not defer to the post-conviction court’s legal


      Court of Appeals of Indiana | Opinion 89A01-1510-PC-1532 | April 5, 2016   Page 7 of 20
       conclusions; the post-conviction court’s findings and judgment will be reversed,

       however, only upon a showing of clear error that leaves us with a definite and

       firm conviction that a mistake has been made. Overstreet, 877 N.E.2d at 151.

       Post-conviction procedures do not afford a petitioner with a super-appeal, and

       not all issues are available. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001).

       Rather, subsequent collateral challenges to convictions must be based on

       grounds enumerated in the post-conviction rules. Id. If an issue was known and

       available, but not raised on direct appeal, it is waived. Id.


[9]    A defendant claiming a violation of the right of effective assistance of counsel

       must establish the two components set forth in Strickland v. Washington, 466

       U.S. 668 (1984). Williams v. Taylor, 529 U.S. 362, 390 (2000). First, the

       defendant must show that counsel’s performance was deficient. Strickland, 466

       U.S. at 687. This requires a showing that counsel’s representation fell below an

       objective standard of reasonableness and that counsel made errors so serious

       that counsel was not functioning as “counsel” guaranteed to the defendant by

       the Sixth Amendment. Id. Second, the defendant must show that the deficient

       performance prejudiced the defense. Id. To establish prejudice, the defendant

       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. at 694. A reasonable probability is one that is sufficient to

       undermine confidence in the outcome. Id.

[10]   Counsel is afforded considerable discretion in choosing strategy and tactics, and

       we will accord those decisions deference. Id. at 689. A strong presumption



       Court of Appeals of Indiana | Opinion 89A01-1510-PC-1532 | April 5, 2016       Page 8 of 20
       arises that counsel rendered adequate assistance and made all significant

       decisions in the exercise of reasonable professional judgment. Id. at

       690. The Strickland court recognized that even the finest, most experienced

       criminal defense attorneys may not agree on the ideal strategy or the most

       effective way to represent a client. Id. at 689. Isolated mistakes, poor strategy,

       inexperience, and instances of bad judgment do not necessarily render

       representation ineffective. Bieghler v. State, 690 N.E.2d 188, 199 (Ind. 1997).

       The two prongs of the Strickland test are separate and independent inquiries.

       Thus, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of

       lack of sufficient prejudice . . . that course should be followed.” Williams v.

       State, 706 N.E.2d 149, 154 (Ind. 1999) (quoting Strickland, 466 U.S. at 697).


[11]   Daugherty alleges that his appellate counsel was ineffective. Our supreme court

       has recognized three categories of alleged appellate counsel ineffectiveness: (1)

       denying access to an appeal, (2) failing to raise issues, and (3) failing to present

       issues competently. Bieghler, 690 N.E.2d at 193-95. Daugherty specifically

       asserts that his appellate counsel failed to raise two issues: that the consecutive

       sentences for his two SVF convictions constituted an impermissible double

       enhancement and that Daugherty’s aggregate sentence exceeded the statutory

       limitation for consecutive sentences arising out of a single episode of criminal

       conduct. His claims fall into Bieghler’s second category. When assessing claims

       under the second category, 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. Finally, we review




       Court of Appeals of Indiana | Opinion 89A01-1510-PC-1532 | April 5, 2016     Page 9 of 20
       matters of statutory interpretations de novo because they present pure questions

       of law. Nicoson v. State, 938 N.E.2d 660, 663 (Ind. 2010).


                                              II. Double Enhancement


[12]   Daugherty argues his appellate counsel was ineffective because he failed to raise

       a claim that the imposition of two consecutive sentences for possession of a

       firearm by an SVF, based on a single prior felony conviction, constituted an

       impermissible double enhancement. Generally, double enhancements are not

       permissible. Dye v State, 972 N.E.2d 853, 856 (Ind. 2012), aff’d on reh’g, 984

       N.E.2d 625 (Ind. 2013). But double enhancements are permissible when there

       is explicit legislative direction authorizing them. Id. at 857. There are three

       types of statutes authorizing enhanced sentences for repeat offenders: the

       general habitual offender statute, specialized habitual offender statutes, and

       progressive-penalty statutes. Id. The first type, the “general habitual offender

       statute,” provides that a person convicted of three felonies of any kind is called

       a “habitual offender.” I.C. § 35–50–2–8; Beldon v. State, 926 N.E.2d 480, 482

       (Ind. 2010). Habitual offenders are subject to an additional term of years

       beyond that imposed for the underlying felony. Beldon, 926 N.E.2d at 482. The

       second type, the “specialized habitual offender statutes,” authorize sentencing

       enhancements where the defendant has been convicted of a certain number of

       similar offenses. Id.; Dye, 972 N.E.2d at 857; see, e.g., I.C. § 35–50–2–14 (repeat

       sex offenders); I.C. § 9–30–10–4 (habitual traffic violators). The third type, the

       “progressive-penalty statutes,” which are the most specialized, elevate the level

       of an offense (with a correspondingly enhanced sentence) where the defendant



       Court of Appeals of Indiana | Opinion 89A01-1510-PC-1532 | April 5, 2016   Page 10 of 20
       has previously been convicted of a particular offense. Dye, 972 N.E.2d at 857.

       Examples of the progressive penalty statutes include the statute at issue here,

       Indiana Code section 35-47-4-5(c). See Dye, 972 N.E.2d at 858 (identifying the

       SVF statute as a progressive penalty statute). Double enhancement issues arise

       where more than one of these statutes apply to the defendant at the same time.

       Id. at 857.


[13]   As a general rule, “absent explicit legislative direction, a sentence imposed

       following conviction under a progressive penalty statute may not be increased

       further under either the general habitual offender statute or a specialized

       habitual offender statute.” Id. Similarly, a conviction under a specialized

       habitual offender statute cannot be further enhanced under the general habitual

       offender statute in the absence of explicit legislative direction. Id. In applying

       the general rule against double enhancements, first, we determine whether the

       defendant’s underlying conviction is pursuant to a progressive-penalty scheme

       or a specialized habitual-offender scheme. Id. at 858. If not, then there is no

       double-enhancement problem. Id. But if so, then the general rule against

       double enhancements is triggered and we will invalidate a double enhancement

       unless the language of the relevant statute possesses the requisite “explicit

       legislative direction” to impose a double enhancement. Id.


[14]   In Dye, applying this analysis, our supreme court held that the defendant’s

       habitual offender enhancement violated the rule against double enhancement.

       Id. First, the Dye court held that the defendant’s SVF conviction was a

       progressive-penalty statute. Id. Second, the Dye court held that the general



       Court of Appeals of Indiana | Opinion 89A01-1510-PC-1532 | April 5, 2016        Page 11 of 20
       habitual offender statute did not include explicit legislative direction

       authorizing double enhancement. Id. As such, the Dye court concluded that a

       double enhancement was not proper where the underlying conviction was for

       unlawful possession of a firearm by an SVF. Id.


[15]   In the present case, in essence, Daugherty urges us to extend the Dye court’s

       decision to cases involving consecutive sentences for two progressive-penalty

       statutes. Daugherty specifically asserts that, because his two SVF convictions

       were “already enhanced” and each was supported by the same underlying

       felony, ordering the sentences to run consecutively violated the double

       enhancement prohibition. (Appellant’s Br. p. 16). We disagree. First,

       Daugherty starts off on the wrong foot. He assumes that the underlying felony

       in his case was the same as the underlying felony used to enhance the

       defendant’s sentence in Dye.1 Daugherty’s underlying felony was used to

       establish his SVF status, and the SVF status, in turn, was an element in each

       SVF count; whereas in Dye, the underlying felony was used to establish the SVF

       status in one SVF count and, what distinguishes Dye from the present case, the

       underlying felony was used as an enhancement for the habitual offender

       adjudication. See Dye, 972 N.E.2d at 858. Second, the Dye court clearly stated

       that the “[d]ouble enhancement issues arise where more than one of the [three types

       of repeat offender] statutes” apply to the defendant at the same time. Id. at 857

       (emphasis added). The present issue involves only the progressive-penalty



       1
           This would equally apply to other cases cited by Daugherty in support of his argument.




       Court of Appeals of Indiana | Opinion 89A01-1510-PC-1532 | April 5, 2016                     Page 12 of 20
       statute, the third type of repeat offender statutes, and the other two types were

       not implicated.2 Third, none of the authorities cited by Daugherty support his

       argument because none of the cases dealt with two separate SVF convictions.

       See id. at 858 (an SVF conviction and a habitual offender adjudication); Mills v.

       State, 868 N.E.2d 446, 452 (Ind. 2007) (an SVF conviction and a habitual

       offender adjudication); Sweatt v. State, 887 N.E.2d 81, 83-84 (Ind. 2008) (an

       SVF conviction and a habitual offender adjudication). Fourth, the SVF statute

       itself is unambiguous—“[an] [SVF] who knowingly or intentionally possesses a

       firearm commits unlawful possession of a firearm by a[n] [SVF], a Class B

       felony.” I.C. § 35-47-4-5(c) (2006). The statute provides that each unlawful

       possession of a weapon is considered to be a separate and distinct act, and

       therefore each unlawful possession is a separate and distinct offense. Taylor v.

       State, 929 N.E.2d 912, 921 (Ind. Ct. App. 2010), trans. denied. Finally, we had

       already addressed Daugherty’s claim of whether the trial court abused its

       discretion in imposing both enhanced and consecutive sentences in 2011, when

       we held that his consecutive sentences were not inappropriate in his direct

       appeal.


[16]   Because Daugherty’s single underlying felony conviction served as an element

       in each SVF count, not as an enhancement, and because each SVF count was a

       separate and distinct offense, we conclude that the imposition of two sentences

       for two counts of unlawful possession of a firearm by an SVF to run

       2
         Daugherty’s sentence enhancement under the habitual offender statute, the first type of repeat offender
       statutes, was successfully vacated on December 8, 2014, and his aggregate sentence was reduced from 53 to
       33 years of imprisonment.




       Court of Appeals of Indiana | Opinion 89A01-1510-PC-1532 | April 5, 2016                       Page 13 of 20
       consecutively was not an improper double enhancement under Indiana law and

       the circumstances of this case. Further, there was no reasonable probability

       that the result of the proceeding would have been any different even if appellate

       counsel would have made the claim. As such, we cannot conclude that

       Daugherty’s appellate counsel was ineffective for failing to raise the double

       enhancement claim.


                                             III. Consecutive Sentencing


[17]   As to the second instance of ineffective assistance of counsel claim, Daugherty

       contends that his sentence for the intimidation conviction ordered to run

       consecutively to the other sentences exceeded the maximum allowed

       punishment pursuant to Indiana Code section 35-50-1-2 (2006), which, at the

       time of Daugherty’s crimes, provided:

                The court may order terms of imprisonment to be served
                consecutively . . . . However, except for crimes of violence, the
                total of the consecutive terms of imprisonment . . . to which the
                defendant is sentenced for felony convictions arising out of an
                episode of criminal conduct shall not exceed the advisory
                sentence for a felony which is one (1) class of felony higher than
                the most serious of the felonies for which the person has been
                convicted.


[18]   Both parties seem to agree that Daugherty’s SVF convictions were not covered

       by the definition of a “crime of violence” at the time.3 See I.C. § 35-50-1-2.



       3
        The statute contains an exhaustive list of violent crimes. The crime of unlawful possession of a firearm by
       an SVF was added to the list in 2015.




       Court of Appeals of Indiana | Opinion 89A01-1510-PC-1532 | April 5, 2016                          Page 14 of 20
       However, both parties disagree as to the definition of a “single episode of

       criminal conduct,” which is dispositive here. See I.C. § 35-50-1-2. A single

       episode of criminal conduct is defined as “an offense or a connected series of

       offenses that are closely related in time, place, and circumstance.” I.C. § 35-50-

       1-2(b).


[19]   Here, Daugherty was stopped for driving while intoxicated. When the police

       officers discovered a handgun between his legs, Daugherty was tased and taken

       into custody. Police also recovered an SKS assault rifle on the vehicle’s

       floorboard. Both weapons were loaded and within Daugherty’s immediate

       reach. Daugherty was taken to a hospital where he was hostile to the officers.

       He spat at the officers, threatened to kill them and their families, and threatened

       to rape their wives. The officers later testified that Daugherty’s threats put them

       in fear for both their personal safety and their families’ safety.


[20]   Daugherty claims that these events constituted a single episode and cites to

       Purdy v. State, 727 N.E.2d 1091 (Ind. Ct. App. 2000), trans. denied. In Purdy, the

       defendant went to the house of his former girlfriend despite a court’s order not

       to have contact with her. Id. at 1092. The defendant pounded on her door and

       threatened to kick it in. Id. The former girlfriend, who did not have a

       telephone in her house, tried to run next door to use the telephone at the Village

       Pantry. Id. The defendant, however, grabbed her by the shoulders, bruising

       her. Id. When the police arrived and attempted to handcuff the defendant, he

       fought back—kicked and spat at the officers, and attempted to flee. Id. As the

       officers placed the defendant in a vehicle, he threatened to kill one of them. Id.



       Court of Appeals of Indiana | Opinion 89A01-1510-PC-1532 | April 5, 2016   Page 15 of 20
       The State charged the defendant with felony intimidation, resisting law

       enforcement, and battery. Id. The Purdy court held that the defendant’s actions

       constituted a single episode because “all of his actions took place during a

       relatively short period of time and all were related to his assault on [his former

       girlfriend].” Id. at 1093.


[21]   The State, in turn, maintains that because Daugherty’s appellate counsel did

       not raise the claim on direct appeal, and because appellate counsel’s decision

       was “clothed” with “the strong presumption of competency,” Daugherty “can

       show neither deficient performance, nor prejudice stemming from [appellate

       counsel’s] election,” and his claim therefore fails. (Appellee’s Br. pp. 24-25).

       Because this issue involves statutory interpretation, we reiterate that we review

       it de novo. Nicoson, 938 N.E.2d at 663.


[22]   The State further asserts that Daugherty’s argument “would have failed in any

       case” because the events did not constitute a single episode. (Appellee’s Br. p.

       24). In support, instead of addressing the negative authority presented by

       Daugherty, the State cites to our decision in Newman and argues that the events

       of the instant case were similar to the events in Newman. See Newman v. State,

       690 N.E.2d 735 (Ind. Ct. App. 1998). In Newman, police officers were

       dispatched to a tavern in response to a burglary report. Id. at 736. When they

       arrived, the defendant was sitting in his car in the parking lot of the tavern. Id.

       The officers stopped in front of the defendant’s vehicle and ordered him three

       times to get out of his car. Id. The defendant refused to get out of his car and

       sped away from the police. Id. The police officers pursued the defendant’s



       Court of Appeals of Indiana | Opinion 89A01-1510-PC-1532 | April 5, 2016   Page 16 of 20
       vehicle until he ultimately crashed into a cement wall. Id. Following the crash,

       the officers discovered cigarettes and money taken by the defendant from the

       tavern. Id. They placed the defendant under arrest and summoned an

       ambulance to transport the defendant to a hospital for the treatment of the

       injuries he received in the crash. Id. After the defendant and the officers arrived

       at the hospital, hospital personnel requested that the defendant not be

       handcuffed in order that he be properly treated. Id. When no officer was

       present in the treatment room, the defendant managed to flee down the hospital

       corridor as hospital personnel yelled for assistance. Id. Police officers

       recaptured the defendant and subsequently transported him to jail. Id. The

       defendant pled guilty to burglary, theft, escape, resisting law enforcement, and

       driving while suspended. Id. The Newman court found that the defendant’s

       actions constituted three separate episodes: burglary and theft, being the first

       distinct episode; resisting law enforcement and fleeing, as the second distinct

       episode; and escape in the hospital, as the third distinct episode. Id. at 737.

       The Newman court concluded that each of these episodes was sufficiently

       unrelated and each could have been described independently without referring

       to the specific details of the other episodes. Id. As such, the Newman court held

       that the defendant’s crimes were committed during three distinct episodes of

       criminal conduct. Id.

[23]   In reaching its decision and to “illuminate our legislature’s definition” of the

       term “episode,” the Newman court examined our sister states’ approaches. Id.




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       The Purdy court, on the other hand, examined the statute’s underlying policy

       and goals. Purdy, 727 N.E.2d at 1093. We prefer the Purdy court’s approach.


[24]   We do not and may not interpret a statute that is facially clear and

       unambiguous. Id. Rather, we give the statute its plain and clear meaning. Id.

       However, when the statute’s application results in opposite conclusions, as in

       the present case where a series of connected events are treated as one episode by

       one party and as several isolated episodes by another, we seek to ascertain and

       give effect to the legislature’s intent. Id. In doing so, we read the act as a whole

       and strive to give effect to all of the provisions, so that no part is held

       meaningless if it can be reconciled with the rest of the statute. Id. Furthermore,

       we presume that our legislature intended its language to be applied in a logical

       manner consistent with the statute’s underlying policy and goals. Id.

[25]   Indiana Code section 35-50-1-2 imposes a previously nonexistent limitation

       upon a trial court’s discretion to impose consecutive sentences, and is therefore

       ameliorative in nature. Id. at 1094. An “ameliorative” statute is one that has

       the effect of decreasing the penalty for an offense. Id. (emphasis in original).

       With these goals in mind, we fail to see how the interpretation of this

       ameliorative statute, which clearly reads that a single episode includes “a

       connected series of offenses that are closely related in time, place, and

       circumstance,” could result in an increase of the penalty by abstract separation of

       the connected events in the parking lot and the hospital. See I.C. § 35-50-1-2

       (2006). The legislature could not have intended this result in 2006. As a matter

       of fact, once the legislature decided to change its position and give the trial



       Court of Appeals of Indiana | Opinion 89A01-1510-PC-1532 | April 5, 2016      Page 18 of 20
       courts the discretion to impose consecutive sentences in SVF cases, it changed

       the statute in 2015 and included the SVF convictions to the list of crimes of

       violence.


[26]   Further, even though there was a change of location between the tasing and

       discovery of two firearms episode and the intimidation episode, we fail to see

       how the change of location separated the two events to the extent that each

       could have been described independently without referring to the specific details

       of the other episode. To prove the intimidation episode, the State was required

       to show that the police officers were placed “in fear of retaliation for a prior

       lawful act.” (Petitioner’s Ex. 1 p. 20). The only way to accomplish this was to

       refer to Daugherty’s arrest, tasing, and discovery of two loaded firearms within

       his immediate reach. All of Daugherty’s actions took place during a relatively

       short period of time and all were related to his intoxication and possession of the

       firearms.


[27]   As such, because Daugherty’s offenses were committed in a single episode, his

       aggregate sentence cannot “exceed the advisory sentence for a felony which is

       one (1) class of felony higher that the most serious of the felonies for which

       [Daugherty] has been convicted.” I.C. § 35-50-1-2(c) (2006). Daugherty’s most

       serious conviction was a Class B felony conviction for unlawful possession of a

       firearm by an SVF, limiting his aggregate sentence to 30 years, the advisory

       sentence for a Class A felony. I.C. § 35-50-1-2(c); -2-4 (2006).




       Court of Appeals of Indiana | Opinion 89A01-1510-PC-1532 | April 5, 2016   Page 19 of 20
[28]   Appellate courts are duty bound to correct sentences that violate the trial court’s

       authority to impose consecutive sentences under Indiana Code section 35-50-1-

       2. Becker v. State, 695 N.E.2d 968, 973 (Ind. Ct. App. 1998). Applying our

       standards of review, we conclude that appellate counsel’s performance was

       deficient and that there was a reasonable probability that, but for appellate

       counsel’s failure to raise the claim, the result of the proceeding would have been

       different. The post-conviction court should have corrected the sentencing error.

       We reverse the post-conviction court’s denial of Daugherty’s request for relief

       as to the intimidation conviction and remand with instructions to resentence

       Daugherty so that his sentence for the intimidation conviction runs

       concurrently to the other sentences and his aggregate term is limited to 30 years.


                                                 CONCLUSION

[29]   Based on the foregoing, we conclude that Daugherty was not denied the

       effective assistance of appellate counsel when counsel did not raise the double

       enhancement issue. However, we conclude that Daugherty was denied the

       effective assistance of appellate counsel when counsel did not raise the issue of

       statutory limitation for consecutive sentences arising out of a single episode of

       criminal conduct.


[30]   Affirmed, in part, reversed, in part, and remanded for resentencing consistent

       with this decision.


[31]   Najam, J. and May, J. concur




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