Pursuant to Ind. Appellate Rule 65(D),                          FILED
this Memorandum Decision shall not be                         Aug 14 2012, 8:53 am
regarded as precedent or cited before any
court except for the purpose of                                      CLERK
establishing the defense of res judicata,                          of the supreme court,
                                                                   court of appeals and
                                                                          tax court
collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                                    GREGORY F. ZOELLER
Public Defender of Indiana                          Attorney General of Indiana

RICHARD DENNING                                     MICHAEL GENE WORDEN
Deputy Public Defender                              Deputy Attorney General
Indianapolis, Indiana                               Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

JOSHUA P. LINDSEY,                                  )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )      No. 29A02-1112-PC-1183
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )


                     APPEAL FROM THE HAMILTON SUPERIOR COURT
                        The Honorable Steven R. Nation, Special Judge
                              Cause No. 29D01-0912-PC-129



                                         August 14, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
      Joshua P. Lindsey (“Lindsey”) appeals the denial of his petition for post-

conviction relief from his convictions for robbery1 as a Class B felony, criminal

confinement2 as a Class B felony, and resisting law enforcement3 as a Class A

misdemeanor. He raises the following restated issues:

      I.        Whether Lindsey received the effective assistance of his appellate
                counsel because, he claims, his counsel failed to raise the issue of
                whether his convictions for both robbery and criminal confinement
                violated his right against double jeopardy under the Indiana
                Constitution; and

      II.       Whether Lindsey received the effective assistance of his appellate
                counsel because, he contends, his counsel failed to argue that the
                trial court abused its discretion in instructing the jury.

      We affirm.

                          FACTS AND PROCEDURAL HISTORY

      The facts supporting Lindsey’s conviction as set forth on his direct appeal are as

follows:

             Due to recent robberies of CVS stores in the area, Officer Kruse
      from the Fishers Police Department was performing surveillance outside a
      CVS store on 116th Street in an unmarked car on an evening in March
      2008. At around 9:45 p.m., Officer Kruse saw a man dressed in black first
      walking, then jogging across the CVS parking lot. The man broke into a
      run as he approached the sidewalk just short of the store entrance. As he
      entered the store at a run, the man raised his arm in such a manner that led
      Officer Kruse to believe he was brandishing a weapon. Officer Kruse
      radioed other police units that he believed an armed robbery was in
      progress at his location, and officers soon arrived.

                Inside the store, Katlin Kline (“Kline”) was working as a cashier

      1
          See Ind. Code § 35-42-5-1.
      2
          See Ind. Code § 35-42-3-3.
      3
          See Ind. Code § 35-44-3-3.


                                              2
when the man, whom she later identified as Lindsey, ran into the store.
Lindsey was wearing black pants, a black hoodie with the hood up, and a
black bandana that covered part of his face. He pointed the gun at her and
asked, “Where’s the money,” Tr. [at] 378, and Kline told him it was in the
office. Lindsey then pointed the gun at her back and led her to the office.
He made Kline knock on the door while he stood away from view of the
door’s window. The store supervisor, Beverly Helm (“Helm”), looked out
the window, saw Kline, and opened the door. Lindsey shoved Kline in and
ordered the two women to open the safe and move to the floor. Kline
immediately moved to the floor. Helm opened the safe and moved to the
floor. Lindsey ordered them to keep quiet and to keep their faces down.
Kline and Helm heard him rummaging through the safe and taking money
out. When Lindsey was done, he threatened, “[I]f you get up, you die,” id.
at 387, and then he left. The entire robbery was captured on surveillance
cameras.

        Officers Kruse, Shawn Wynn, and Mark Elder, each in separate cars,
saw Lindsey run out of the store and across the parking lot. All three
officers tried to stop Lindsey, and Officers Wynn and Elder yelled, “Police,
stop,” id. at 517, 580, but Lindsey continued to run. Officer Kruse drove
his car ahead of Lindsey, who was still on foot, and stopped his car in a
public lot near a car that was in the general direction to which Lindsey was
running. He stepped out of his car and walked to the driver’s side of the
other car, intending to cut off and apprehend Lindsey. When Lindsey was
within six to eight feet of the car, Officer Kruse identified himself as a
police officer and ordered him to stop. At that point, Lindsey turned
around and ran in a different direction. Officer Kruse saw other officers
arriving and jumping out of their cars to pursue Lindsey on foot. His
attention was drawn to the car to which Lindsey had been running, whose
driver’s side door was open approximately six inches and windows were
tinted such that he could not see inside. Although the windshield was not
tinted, Officer Kruse was unable to see into the back seat. Recognizing that
there might be an accomplice in the car and concerned for officer safety,
Officer Kruse opened the door wider so that he could “clear” the car out,
that is, make sure “that there was nobody laying [sic] down in the back seat
or on the back floorboard or in the driver or passenger area of the car.” Id.
at 313. While looking for a possible accomplice, Officer Kruse saw an
activated handheld police scanner in the center console, a holster on the
front floorboard, keys in the ignition, a plastic bag, and clothing. Without
ever touching anything in the car or even sticking his head inside, Officer
Kruse confirmed that no one was in the car. He then walked around to the
front of the car, felt the hood, and found the engine compartment was still
warm.


                                     3
              Meanwhile, other officers were still pursuing Lindsey. Although
      they lost sight of him for a few seconds when he entered a partially
      constructed building, the officers on foot could hear him hitting wood and
      other items as he ran through. Officer David Seward was chasing Lindsey
      in his car. As he closed in on Lindsey, he stepped out of his car, pointed his
      handgun at Lindsey, and told him to put his hands up. Lindsey finally
      complied after Officer Seward repeated the order multiple times. Officer
      Seward then ordered Lindsey down on the ground. Again, he had to repeat
      himself multiple times. At that point, Officer Wynn came up behind
      Lindsey and used physical force to get him to the ground. He then received
      assistance from another officer in handcuffing Lindsey.

             After Lindsey was secured, the officers found a black BB gun in his
      pocket and a can of pepper spray in a holster on his waist. Upon following
      the path of the foot chase, a K–9 officer and his dog found a white garbage
      bag with cash in the amount of $3698 in the building through which
      Lindsey had run. The license plate number and the vehicle identification
      number verified that Lindsey was the owner of the car. Nothing was
      removed from the car until a search warrant was obtained. None of the
      officers saw any person who bore any resemblance to Lindsey during the
      chase.

Lindsey v. State, 916 N.E.2d 230, 233-34 (Ind. Ct. App. 2009), trans. denied.

      The State charged Lindsey with robbery as a Class B felony, theft as a Class D

felony, criminal confinement as a Class B felony, and resisting law enforcement as a

Class A misdemeanor. The State also filed an information alleging Lindsey to be an

habitual offender. A jury trial was held, at the conclusion of which, Lindsey was found

guilty as charged. Lindsey subsequently stipulated to his prior convictions, and the trial

court found him to be an habitual offender. The trial court sentenced him to twenty years

for his robbery conviction, enhanced the sentence by thirty years for the habitual offender

finding; twenty years for his criminal confinement conviction, to be served consecutively

to the robbery conviction; and one year for his resisting law enforcement, to be served

concurrently with the other sentences, for an aggregate sentence of seventy years. The


                                            4
trial court vacated Lindsey’s theft conviction based on double jeopardy concerns.

        In his direct appeal, Lindsey was represented by S. Neal Ziliak (“Ziliak”), who

raised four issues on appeal: (1) whether the trial court abused its discretion in removing

a juror for cause; (2) whether the trial court erred in denying his Batson4 challenge to the

State’s peremptory strike of a juror; (3) whether the trial court erred in denying his

motion to suppress evidence because the inspection of his vehicle was illegal; and (4)

whether his sentence was inappropriate in light of the nature of the offense and the

character of the offender.          Id. at 236.       On November 9, 2009, this court affirmed

Lindsey’s convictions and sentence in a published opinion. Id. at 233-42.

        Lindsey subsequently filed a pro se petition for post-conviction relief and a pro se

amended petition for post-conviction relief. On July 8, 2011, he filed, by counsel, a

second amended petition for post-conviction relief, in which he raised the issues that he

received ineffective assistance of his appellate counsel because Ziliak failed to raise a

double jeopardy claim and a jury instruction issue. During the evidentiary hearing on the

petition, Ziliak testified as to how he prepares an appeal, including how he selects issues

for appeal. Tr. at 6-7.5 He testified that in his review of the trial record for Lindsey’s

appeal he did not see any glaring errors to challenge and that he selected the issues that

he believed had the most merit for an appeal. Id. at 18, 21. Lindsey actually insisted that


        4
            Batson v. Kentucky, 476 U.S. 79 (1986).
        5
           We note that the appellate record contains transcripts from both the trial and the post-conviction
proceedings and appendices from both the direct appeal and the current appeal from the post-conviction
proceedings. Therefore, any reference to the post-conviction transcript will be Tr., and any reference to
the trial transcript will be to Trial Tr. Likewise, any reference to the post-conviction appendix will be to
Appellant’s App., while any reference to the appendix from the direct appeal will be to Appellant’s Trial
App.

                                                      5
Ziliak raise the Batson issue and the motion to suppress issue. Id. at 15-17, 21. Ziliak

testified that he had considered the double jeopardy issue that Lindsay claimed that he

failed to raise, but Zilaik decided not to pursue it because the record and the law did not

support it. Id. at 8-10, 12-14. He did not consider the jury instruction issue to be an

obvious issue for appeal. Id. at 15. On November 22, 2011, the post-conviction court

issued its findings of fact, conclusions thereon, and judgment, which denied Lindsey’s

petition for post-conviction relief and found that he failed to show that he received the

ineffective assistance of his appellate counsel. Lindsey now appeals.

                            DISCUSSION AND DECISION

       Post-conviction proceedings do not afford the petitioner an opportunity for a super

appeal, but rather, provide the opportunity to raise issues that were unknown or

unavailable at the time of the original trial or the direct appeal. Ben-Yisrayl v. State, 738

N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164 (2002); Wieland v. State, 848

N.E.2d 679, 681 (Ind. Ct App. 2006), trans. denied, cert. denied, 549 U.S. 1038 (2006).

The proceedings do not substitute for a direct appeal and provide only a narrow remedy

for subsequent collateral challenges to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The

petitioner for post-conviction relief bears the burden of proving the grounds by a

preponderance of the evidence. Ind. Post-Conviction Rule 1(5).

       When a petitioner appeals a denial of post-conviction relief, he appeals a negative

judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007), trans. denied. The

petitioner must establish that the evidence as a whole unmistakably and unerringly leads

to a conclusion contrary to that of the post-conviction court. Id. We will disturb a post-


                                             6
conviction court’s decision as being contrary to law only where the evidence is without

conflict and leads to but one conclusion, and the post-conviction court has reached the

opposite conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans.

denied. The post-conviction court is the sole judge of the weight of the evidence and the

credibility of witnesses. Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008),

trans. denied. We accept the post-conviction court’s findings of fact unless they are

clearly erroneous, and no deference is given to its conclusions of law. Fisher, 878

N.E.2d at 463.

       We review ineffective assistance of trial counsel claims under the two-prong test

set out in Strickland v. Washington, 466 U.S. 668 (1984). Id. First, the petitioner must

demonstrate that counsel’s performance was deficient, which requires a showing that

counsel’s representation fell below an objective standard of reasonableness and denied

the petitioner the right to counsel guaranteed by the Sixth Amendment to the United

States Constitution. Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001), cert. denied,

537 U.S. 839 (2002). Second, the petitioner must demonstrate that he was prejudiced by

counsel’s deficient performance. Id. To show prejudice, a petitioner must show that

there is a reasonable probability that the outcome of the trial would have been different if

counsel had not made the errors. Id. A probability is reasonable if it undermines

confidence in the outcome. Id.

       We presume that counsel rendered adequate assistance and give considerable

discretion to counsel’s choice of strategy and tactics. Smith v. State, 765 N.E.2d 578, 585

(Ind. 2002).     “Isolated mistakes, poor strategy, inexperience, and instances of bad


                                             7
judgment do not necessarily render representation ineffective.” Id. “If we can resolve a

claim of ineffective assistance of counsel based on lack of prejudice, we need not address

the adequacy of counsel’s performance. Fisher, 878 N.E.2d at 463-64.

       The standard of review for claims of ineffective assistance of appellate counsel is

the same as for trial counsel in that the defendant must show appellate counsel was

deficient in his or her performance and that the deficiency resulted in prejudice. Henley

v. State, 881 N.E.2d 639, 644 (Ind. 2008) (citing Strickland, 466 U.S. at 686). Ineffective

assistance at the appellate level of proceedings generally falls into three basic categories:

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

well. Wright, 881 N.E.2d at 1023 (citing Bieghler v. State, 690 N.E.2d 188, 193-95 (Ind.

1997), cert. denied, 525 U.S. 1021 (1998)). When evaluating a claimed deficiency in

appellate representation due to an omission of an issue, a post-conviction court is

properly deferential to appellate counsel’s choice of issues for appeal “unless such a

decision was unquestionably unreasonable.” Hampton v. State, 961 N.E.2d 480, 491-92

(Ind. 2012) (quoting Bieghler, 690 N.E.2d at 194.) Such deference is appropriate because

the selection of issues for direct appeal “is one of the most important strategic decisions

of appellate counsel.” Id. (quoting Bieghler, 690 N.E.2d at 194.). “‘Appellate counsel’s

performance, as to the selection and presentation of issues, will thus be presumed

adequate unless found unquestionably unreasonable considering the information available

in the trial record or otherwise known to the appellate counsel.’” Id. at 491-92. (quoting

Ben–Yisrayl, 738 N.E.2d at 261). In crafting an appeal, counsel must choose those issues

which appear from the face of the record to be most availing. Id. at 492. Thus, to prevail


                                             8
in such a claim in post-conviction proceedings, it is not enough to show that appellate

counsel did not raise some potential issue; instead, the defendant must show that the issue

was one which a reasonable attorney would have thought availing. Id.

                                  I. Double Jeopardy

       Lindsey argues that he received ineffective assistance of his appellate counsel

because his counsel failed to raise the issue of whether his convictions and sentences for

both robbery and criminal confinement constituted a double jeopardy violation. He

contends that his convictions for both of these offenses violated the prohibition against

double jeopardy under the Indiana Constitution because the same evidence was used to

establish the elements of both offenses. Lindsey further asserts that, in the present case,

the criminal confinement established by the evidence at trial was the same confinement

required to commit the robbery, which violates the actual evidence test under the Indiana

Constitution.

       Article I, section 14 of the Indiana Constitution provides that, “No person shall be

put in jeopardy twice for the same offense.” Ind. Const. art. I, § 14. We analyze alleged

violations of this clause pursuant to our Supreme Court’s opinion in Richardson v. State,

717 N.E.2d 32 (Ind. 1999). Bunch v. State, 937 N.E.2d 839, 845 (Ind. Ct. App. 2010),

trans. denied. In Richardson, our Supreme Court 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


                                            9
(emphasis in original). Here, Lindsey claims that his convictions constituted double

jeopardy under the “actual evidence” test.

       Under the “actual evidence” test, a defendant must demonstrate a reasonable

possibility that the evidentiary facts used by the fact-finder to establish the essential

elements of one offense may also have been used to establish all of the essential elements

of a second challenged offense. Bunch, 937 N.E.2d at 845. “Application of this test

requires the court to ‘identify the essential elements of each of the challenged crimes and

to evaluate the evidence from the jury’s perspective[.]’” Lee v. State, 892 N.E.2d 1231,

1234 (Ind. 2008) (quoting Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002)). Therefore,

we consider the essential elements of the offenses, the charging information, the jury

instructions, the evidence, and the arguments of counsel. Id. The term “reasonable

possibility” “turns on a practical assessment of whether the jury may have latched on to

exactly the same facts for both convictions.” Id. at 1236.

       In order to convict Lindsey of robbery as a Class B felony, the State was required

to prove beyond a reasonable doubt that Lindsey knowingly or intentionally took

property from the presence of Kline and Helm by threatening the use of force on any

person while armed with a deadly weapon. Ind. Code § 35-42-5-1. In order to convict

Lindsey of criminal confinement as a Class B felony, the State was required to prove

beyond a reasonable doubt that he knowingly or intentionally confined Kline and Helm

without their consent while armed with a deadly weapon.          Ind. Code § 35-42-3-3.

Confinement is not a lesser included offense of robbery. Polk v. State, 783 N.E.2d 1253,

1258 (Ind. Ct. App. 2003), trans. denied. “‘Generally, double jeopardy does not prohibit


                                             10
convictions for criminal confinement and robbery when the facts indicate that the

confinement was more extensive than that necessary to commit the robbery. In these

circumstances, criminal confinement is a separate criminal transgression.’” Buchanan v.

State, 913 N.E.2d 712, 721 (Ind. Ct. App. 2009) (quoting Benavides v. State, 808 N.E.2d

708, 712 (Ind. Ct. App. 2004) (citations omitted), trans. denied.), trans. denied.

       Here, the evidence at trial showed that Lindsey entered the CVS, pointed a gun at

Kline, and asked her where the money was located. She told him it was in the office, and

Lindsey again pointed the gun at her, forcing her to the office. After gaining access to

the office, Lindsey made Kline get on the floor and ordered Helm to open the safe. He

then made Helm get on the floor. Lindsey removed the money from the safe, and as he

was leaving the office, he told the employees, “if you get up, you die.” Trial Tr. at 387.

Based on this evidence, the jury could reasonably have based Lindsey’s criminal

confinement conviction on the evidence that he pointed the gun at Kline and forced her to

walk back to the office or on the evidence that Lindsey told the employees, “if you get

up, you die” as he was leaving in order to ensure they remained on the floor, and the jury

could have reasonably based Lindsey’s robbery conviction on the evidence that he

pointed a gun at Helm and Kline in the office, ordered Helm to open the safe, and took

the money from the safe. We therefore conclude that each offense was established by

separate and distinct facts, and Lindsey’s conviction for criminal confinement and

robbery did not violate double jeopardy. Because we hold that his convictions did not

constitute double jeopardy, we find that Lindsay did not receive the ineffective assistance

of his appellate counsel as he cannot show that a different outcome would have been


                                             11
attained had Ziliak raised the double jeopardy issue on his direct appeal.

                                       II. Jury Instruction

       Lindsey argues that he received ineffective assistance of his appellate counsel

because his counsel failed to raise the issue of whether the trial court abused its discretion

in instructing the jury regarding the definition of “deadly weapon.” He contends that one

of the instructions defining “deadly weapon” should not have been given because it

invaded the province of the jury by unduly emphasizing one particular evidentiary fact.

Lindsey therefore asserts his appellate counsel was ineffective for failing to raise this

issue in his direct appeal because, had he raised the issue, there is a reasonable

probability that his convictions would have been reversed.

       “‘The purpose of a jury instruction is to inform the jury of the law applicable to

the facts without misleading the jury and to enable it to comprehend the case clearly and

arrive at a just, fair, and correct verdict.’” Fowler v. State, 900 N.E.2d 770, 773 (Ind. Ct.

App. 2009) (quoting Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001)). Jury instruction

is a matter assigned to trial court discretion, and an abuse of that discretion occurs when

instructions, taken as a whole, mislead the jury as to the applicable law. Id. (citing Ham

v. State, 826 N.E.2d 640, 641 (Ind. 2005)). Indiana courts “have ‘long disapproved’

instructions that unduly ‘emphasize one particular evidentiary fact, witness, or phase of

the case.’” Id. (quoting Ham, 826 N.E.2d at 641-42). An instruction as to what evidence

warrants an inference of guilt clearly invades the jury’s province. Id. (citing Crawford v.

State, 550 N.E.2d 759, 761 (Ind. 1990)). Jury instructions are to be considered as a

whole, and we will not find that the trial court abused its discretion unless we determine


                                             12
that the instructions taken as a whole misstate the law or otherwise mislead the jury.

Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct. App. 2005), trans. denied.

       In the present case, the specific instruction given with which Lindsey takes issue

stated as follows: “Although not firearms, pellet or BB guns can be considered deadly

weapons within the statute.”      Appellant’s Trial App. at 145.       In addition to this

instruction, the trial court also provided the following instructions in order to inform the

jury on how to determine whether a “deadly weapon” was used:

       The term “deadly weapon” is defined by law as meaning a loaded firearm
       or unloaded firearm or a weapon, device, taser or electronic stun weapon,
       equipment, chemical substance, or other material that in the manner it is
       used, or could ordinarily be used, is readily capable of causing harm.

       The question of whether a weapon is a deadly weapon is determined from a
       description of the weapon, the manner of its use, and the circumstances of
       the case.

       “Serious bodily injury” means bodily injury that creates a substantial risk of
       death or that causes:        (1) serious permanent disfigurement; (2)
       unconsciousness; (3) extreme pain; permanent or protracted loss of
       impairment of the function of a bodily member or organ; or loss of a fetus.

Id. at 144, 146-47. The jury was also instructed as to the State’s burden of proof and that

the State was required to prove all of the elements of the charged offenses beyond a

reasonable doubt. Id. at 149.

       At trial, Lindsey’s counsel objected to the instruction and argued that it invaded

the province of the jury. After Lindsey’s conviction, his appellate counsel, Ziliak, did not

make any such argument on direct appeal. During the post-conviction hearing, Ziliak

testified that he did not consider that the instruction highlighted a specific piece of

evidence, but did believe that the instruction was a correct statement of the law. Tr. at


                                            13
15.   When the disputed jury instruction is considered as a whole with the other

instructions given regarding the definition of a deadly weapon, it did not invade the

province of the jury because the jury was not told that the BB gun used in the case was

actually a deadly weapon. The instructions as a whole left the jury to decide on its own

whether the BB gun qualified under the circumstances of the case as a deadly weapon.

As the jury instructions as a whole did not warrant an inference of guilt upon the finding

of certain facts, we conclude that the complained-of jury instruction did not constitute a

mandatory instruction that clearly invaded the jury’s province. Therefore, because we

conclude that the jury was properly instructed as to the definition of a “deadly weapon,”

we find that Lindsay did not receive the ineffective assistance of his appellate counsel as

he cannot show that a different outcome would have been attained had Ziliak raised the

jury instruction issue on his direct appeal. The post-conviction court did not err in

denying Lindsey’s petition.

       Affirmed.

BROWN, J., concurs.

BAKER, J., concurs in part and dissents in part with separate opinion.




                                            14
                              IN THE
                    COURT OF APPEALS OF INDIANA

JOSHUA P. LINDSEY,                               )
                                                 )
       Appellant-Petitioner,                     )
                                                 )
              vs.                                )      No. 29A02-1112-PC-1183
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Respondent.                      )


BAKER, Judge, concurring in part and dissenting in part.

       I agree with the majority’s conclusion that Lindsey’s appellate counsel was not

ineffective for failing to raise the jury instruction issue on direct appeal. However, I

respectfully part ways with the majority’s determination that counsel was not ineffective

on the basis that no double jeopardy violation occurred with regard to convicting and

sentencing Lindsey for both the confinement and robbery offenses. More particularly, I

cannot agree with the notion that “each offense was established by separate distinct facts,

and Lindsey’s conviction for criminal confinement and robbery did not violate double

jeopardy.” Slip op. at 11.

       The basic facts here are that Lindsey, the lone robber, entered the pharmacy,

pointed a gun at Kline, forced her to the office to get the manager to open the office door,

took money from the safe while ordering the victims to lie on the floor, and told the

victims that they would be killed if they got up. Tr. p. 375-844, 436-44.

       In my view, the cases on which the State relies for the proposition that no double


                                            15
jeopardy occurred in this instance are distinguishable from the circumstances here. To

illustrate, in Hopkins v. State, 759 N.E.2d 633, 640-41 (Ind. 2001), the evidence

established that the robbers forced the victims into the basement of a residence and

robbed them. One of the robbers subsequently searched the house while the other robber

held the victims at gunpoint. Our Supreme Court determined that the evidence of forcing

the victims to the basement before robbing them, keeping them in the basement while

ransacking the house, and keeping the victims confined for a protracted period of time,

supported the confinement offense separate from the robbery.

       Unlike the situation in Hopkins, Lindsey forced Kline to get the manager to open

the door and then took the money. The entire episode lasted only a few minutes. In my

view, the confinement of Kline was no more than what was required to commit the

robbery. In other words, the confinement was contemporaneous with the robbery. As a

result, the conviction and sentence for both robbery and confinement violated double

jeopardy principles set forth in Article 1, Section 14 of the Indiana Constitution under the

actual evidence test. See Buchanan v. State, 913 N.E.2d 712, 714 (Ind. Ct. App. 2009)

(holding that the confinement was no more than what was required to commit the robbery

when the defendant directed bank employees to put money into a duffle bag and then

ordered the employees to lie on the floor).

       I acknowledge that our Supreme Court and this court have previously held that

double jeopardy principles may not be implicated when two victims are involved.

However, those cases involve separate counts for each victim. Bald v. State, 766 N.E.2d

1170, 1172 (Ind. 2002); Mathews v. State, 824 N.E.2d 713, 727 (Ind. Ct. App. 2005). In


                                              16
this case, Lindsey was charged with robbery and confinement but the charging

informations listed each victim in each count. That said, I must conclude that Lindsey’s

counsel on direct appeal was ineffective for failing to raise the double jeopardy issue with

regard to the robbery and confinement convictions and sentences.           I vote to grant

Lindsey’s petition for post-conviction relief in part and would set aside Lindsey’s

conviction and sentence for confinement.




                                            17
