Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                        Jan 21 2014, 10:17 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE:

DONALD WARE                                         GREGORY F. ZOELLER
Pendleton, Indiana                                  Attorney General of Indiana

                                                    RYAN D. JOHANNINGSMEIER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

DONALD WARE,                                        )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 49A02-1304-PC-370
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Marc T. Rothenberg, Judge
                         The Honorable Amy J. Barbar, Magistrate
                            Cause No. 49G02-0508-PC-130877



                                         January 21, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge
       Donald Ware (“Ware”) appeals the denial of his petition for post-conviction relief,

contending that the post-conviction court erred when it found that he was not denied the

effective assistance of trial counsel and appellate counsel. He raises the following, restated

issues for our review:

       I.     Whether Ware’s trial counsel was ineffective for failing to submit an
              alternative jury instruction for murder on the basis that the instruction
              given omitted the essential element of the absence of sudden heat and
              for failing to object to the jury instruction regarding the consideration
              of lesser included offenses; and

       II.    Whether Ware’s appellate counsel was ineffective for failing to raise
              an issue regarding whether Ware’s convictions for two counts of
              criminal recklessness violated double jeopardy.

       We affirm.

                         FACTS AND PROCEDURAL HISTORY

       The facts supporting Ware’s convictions as set forth by this court in his direct appeal

are as follows:

               On July 24, 2005, a group of teenage boys gathered in an area near
       the intersection of Rockville Road and Girls School Road in Marion County
       for the purpose of throwing eggs at passing cars. At one point, the boys
       struck Lisa Baker’s car. Baker stopped and began yelling that she was going
       to call the police. The boys then struck a pickup truck, which was later
       determined to be driven by Ware. Ware stopped, exited his truck, and yelled
       at the boys. He then returned to his truck and drove to where Baker had
       stopped her car. While talking to Baker, Ware made racially derogatory
       comments about the boys and told Baker that he had a rifle and was going to
       get the boys. Ware asked Baker where the boys were, and after Baker pointed
       in the general direction, Ware drove after the boys. While the boys were
       running from Ware’s truck, two shots were fired, killing Brandon Dunson
       (“Dunson”) and wounding Michael Dyer (“Dyer”).

              Tracy Nash was the first police officer to arrive on the scene. Officer
       Nash was unaware that there had been a shooting, and was on the scene to
       investigate reports of boys throwing eggs at passing vehicles. He noticed

                                              2
Ware’s truck because it was traveling at a high rate of speed and saw it pull
into a public storage facility’s parking lot. When Officer Nash pulled in
behind the truck, Ware exited his truck and approached the driver’s side of
Officer Nash’s vehicle. Ware told Officer Nash that he had been struck in
the head by an egg, and told Officer Nash that the boys who had thrown the
eggs were running behind the public storage facility. Officer Nash told Ware
not to leave, and went to look for the boys. When Officer Nash returned to
the parking lot after an unsuccessful search for the boys, Ware had left the
scene.

        Dunson’s friends who were running with him were afraid of being
caught and did not stop when Dunson was shot. Later that night, one of
Dunson’s friends who had not participated in the egging became concerned
about Dunson and went to look for him. He found Dunson’s body in the
grass near the public storage facility and called the police. After learning
that a shooting had occurred, the police turned their attention to identifying
the man with whom Baker and Officer Nash spoke. Baker was shown a
photographic array and initially identified, with ninety percent confidence,
Chester Williams as the man with whom she spoke. After being shown a
second photographic array, Baker identified Williams with one hundred
percent confidence. However, further investigation ruled out Williams as a
suspect. A few days later, the police received an anonymous phone call
indicating that a man named “Donny” was responsible for shooting Dunson,
and that he lived in Avon, Indiana, and drove a red pickup truck. Police then
began surveillance of Ware’s house and determined that Ware was “Donny.”
Officers then showed a photographic array to Officer Nash, who identified
Ware as the man with whom he spoke the night of the shooting. The police
then applied for a warrant to search Ware’s house and vehicle.

....

       After receiving the search warrant, officers found eggshells and
residue in and on Ware’s truck, and found roughly forty-nine grams of
marijuana in Ware’s residence. No gun was recovered during this search or
throughout the remainder of the investigation. Officers took [Terri]
Eberwein, who was at the residence at the time of the search, to the police
station for questioning. Eberwein told officers that upon returning home the
night of the shooting, Ware had told her he had been egged and had “said
something about, you know shooting but he didn't say at what or anything,”
and that he said “he fired some rounds or some shots.” State’s Ex. 113. The
next day, officers arrested Ware without a warrant and took him in for
questioning. Ware admitted being on the scene that night and speaking to
Baker and Officer Nash, but denied shooting at the boys or having a gun.

                                      3
              Prior to trial, Ware filed a motion to suppress the evidence obtained
      as a result of the search and arrest, arguing that probable cause supported
      neither. After a hearing, the trial court denied Ware’s motion. At trial, the
      boys who had participated in the egging testified. All the boys testified that
      they saw a red or dark-colored pickup truck chasing them. Three of the boys
      testified that at some point while they were leaving the scene they saw a truck
      driving around in the area with someone standing in the truck’s bed. The
      jury also heard the testimony of Officer Nash and Baker, who both identified
      Ware as the person with whom they spoke that night. Eberwein also testified,
      and admitted telling officers that Ware had mentioned shooting a gun the
      night of the incident, but said that when she gave her statement to police, she
      had been intimidated, was under the influence of prescription and illegal
      drugs, and had falsified some information in her statement. The jury found
      Ware guilty of murder, battery, and two counts of criminal recklessness.

              Ware filed a motion for the trial court to enter alternative final
      judgment and a motion for a new trial. The trial court denied both motions
      at the beginning of the sentencing hearing. The trial court sentenced Ware
      to sixty years for murder, six years for battery, and two years for each of the
      criminal recklessness counts. The trial court then ordered that all sentences
      be served consecutively based on the number of victims, for an aggregate
      sentence of seventy years.

Ware v. State, 859 N.E.2d 708, 713-15 (Ind. Ct. App. 2007), trans. denied.

      During discussion of the jury instructions at trial, Ware’s trial counsel, Kathleen

Sweeney (“Sweeney”), objected to the voluntary manslaughter instruction on two grounds:

(1) the instruction should not have been given because voluntary manslaughter was not an

inherently included offense; and (2) the instruction was misleading. Trial Tr. at 908-09.

At a later conference regarding the instructions, Sweeney maintained that the instruction

should not be given, but withdrew the objection that the language was misleading. Id. at

1156-57.

      After Ware was found guilty of murder, he filed a motion under Indiana Trial Rule

50 asking for the trial court to find him guilty of voluntary manslaughter as a lesser-

                                            4
included offense of murder. The motion also requested that the trial court find that Ware

was not guilty of the two counts of Class D felony criminal recklessness. Ware also filed

a motion for a new trial, in which he stated that his defense theory at trial was, in part, to

show that Williams was the shooter. At sentencing, Sweeney again moved for the trial

court to enter judgment on voluntary manslaughter instead of murder. Id. at 1327-28.

        Ware appealed and raised four issues on direct appeal: (1) evidence obtained

through a search performed pursuant to a search warrant and statements made following a

warrantless arrest were not properly admitted; (2) evidence that the State did not disclose

to Ware prior to trial was not properly admitted; (3) Ware’s convictions were not supported

by sufficient evidence; and (4) Ware’s sentence was inappropriate. Ware’s convictions

were affirmed by this court. Ware sought rehearing and transfer, which were both denied.

        Ware filed his pro se petition for post-conviction relief on April 9, 2012. On

September 19, 2012, Ware filed an amended petition for post-conviction relief, alleging

that his trial counsel was ineffective for allowing the trial court to give defective jury

instructions on murder, voluntary manslaughter, reckless homicide and sudden heat and

for failing to move to vacate the murder conviction for an entry of conviction for voluntary

manslaughter under Indiana Trial Rule 59(J).1 Ware also alleged that his appellate counsel

was ineffective for failing to raise on direct appeal the issue of double jeopardy regarding

his two convictions for criminal recklessness.




        1
         We note that, although Ware raised an issue regarding the failure to move to vacate his murder
conviction in his petition for post-conviction relief, he does not raise the denial of relief on such issue here
on appeal. Therefore, we do not reach that issue here.

                                                       5
       On November 14, 2012, an evidentiary hearing was held on Ware’s petition. At

trial, Ware had been represented by both Jackie Butler (“Butler”) and Sweeney. At the

post-conviction hearing, Butler testified that the defense theory at trial was that Ware did

not commit the crimes. P-CR Tr. at 6, 21. Butler stated that she conferred with both Ware

and his family in developing the defense theory, and she believed that Ware understood

the legal issues. Id. at 6, 7. Ware’s attorney on direct appeal, Ann Sutton (“Sutton”) also

testified at the hearing. She stated that she conferred with Ware and both trial attorneys

about the issues to raise on appeal, including the theory that Ware was innocent. Id. at 24.

Sutton testified that she raised an issue regarding sufficiency of the evidence as to one of

the criminal recklessness convictions but did not challenge both convictions. Id. at 25-26.

She further testified that she did not recall why she did not challenge the criminal

recklessness convictions based on double jeopardy. Id. at 28. On April 2, 2013, after

receiving proposed findings of fact and conclusions of law from both sides, the post-

conviction court denied Ware’s petition for post-conviction relief. Ware now appeals.

                            DISCUSSION AND DECISION

       Ware argues that the post-conviction court erroneously denied his petition for post-

conviction relief. 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

                                             6
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-

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.

                           I. Ineffective Assistance of Trial Counsel

       When evaluating a claim of ineffective assistance of counsel, we apply the two-part

test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Perry v. State, 904

N.E.2d 302, 308 (Ind. Ct. App. 2009) (citing Pinkins v. State, 799 N.E.2d 1079, 1093 (Ind.

Ct. App. 2003), trans. denied), trans. denied. First, the defendant must show that counsel’s

performance was deficient. Id. This requires a showing that counsel’s representation fell

below an objective standard of reasonableness and that the errors were so serious that they

resulted in a denial of the right to counsel guaranteed to the defendant by the Sixth and

                                             7
Fourteenth Amendments.        Id.   Second, the defendant must show that the deficient

performance resulted in prejudice. Id. To establish prejudice, a 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. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Id.

       We will not lightly speculate as to what may or may not have been an advantageous

trial strategy, as counsel should be given deference in choosing a trial strategy that, at the

time and under the circumstances, seems best. Id. (citing Whitener v. State, 696 N.E.2d

40, 42 (Ind. 1998)). If a claim of ineffective assistance can be disposed of by analyzing

the prejudice prong alone, we will do so. Id. (citing Wentz v. State, 766 N.E.2d 351, 360

(Ind. 2002)).

       Ware first contends that his trial counsel was ineffective for failing to submit an

alternate jury instruction for murder because the instruction given omitted the essential

element of the absence of sudden heat. He argues that, when evidence supporting the

existence of sudden heat has been presented, the State must prove the absence of sudden

heat to obtain a murder conviction. Ware asserts that, here, the instructions given by the

trial court failed to properly instruct the jury, and his trial counsel did not tender an

instruction that would have informed the jury as to the State’s burden. He therefore claims

that he was prejudiced because the improper instructions potentially caused a wrongful

conviction for murder, and the post-conviction court erred in finding his counsel was not

ineffective.



                                              8
       It is well settled in Indiana that sudden heat is not an element of voluntary

manslaughter. Eichelberger v. State, 852 N.E.2d 631, 636 (Ind. Ct. App. 2006) (citing

Boesch v. State, 778 N.E.2d 1276, 1279 (Ind. 2002)), trans. denied. Rather, once a

defendant presents evidence of sudden heat, the State bears the burden of disproving its

existence beyond a reasonable doubt. Id. (citing Ind. Code § 35-42-1-3(b) (“The existence

of sudden heat is a mitigating factor that reduces what otherwise would be murder under

section 1(1) of this chapter to voluntary manslaughter.”)). An instruction assigning the

burden of affirmatively proving sudden heat to the State is erroneous as a matter of law.

Id. Additionally, a trial court’s failure to give a jury instruction explaining that the State

must negate the presence of sudden heat beyond a reasonable doubt, when requested,

necessitates the granting of a new trial. Id. (citing Harrington v. State, 516 N.E.2d 65, 66

(Ind.1987)). Our Supreme Court has stated that the State must prove the absence of sudden

heat to obtain a murder conviction when the defendant has asserted the issue at trial, but

added that it is well settled in Indiana that there is no implied element of the absence of

sudden heat on a murder charge. Conner v. State, 829 N.E.2d 21, 24 (Ind. 2005).

       In the present case, the instructions at issue read as follows:

       INSTRUCTION NO. 21A

       On occasion, either because of the nature of the crime(s) which is/are charged
       or because of the evidence that is presented during the trial, the law permits
       the Jury to consider whether the Defendant is guilty of certain charges that
       are not explicitly mentioned in the Information. These charges are called
       included offenses. They are called included offenses because they are
       offenses which necessarily must be committed as a part of the charged
       offense or because the evidence presented during trial can lead to a finding
       that the crime which was committed was as serious, or less serious, than the
       crime charged.

                                              9
If you find the Defendant not guilty of the charged offense, then you may
consider whether the Defendant is guilty of the included offense.

All of the instructions that I give you are to be applied to your deliberations
whether you are considering a charged offense or an included offense. In
other words, you may not convict the Defendant of any crime unless the State
has proven the crime’s applicable elements beyond a reasonable doubt.

You must not look upon the included offense(s) as an opportunity to
compromise the differences among yourselves.

INSTRUCTION NO. 21B

The crime of Murder, a felony, with which the Defendant is charged in Count
1, is defined as follows:

“A person who knowingly or intentionally kills another human being
commits Murder, a felony.”

Included in the charge of Murder in this case is the crime of Voluntary
Manslaughter that is defined as follows:

“A person who knowingly or intentionally kills another human being while
acting under sudden heat commits Voluntary Manslaughter, a Class B felony.
The offense is a Class A felony if it is committed by means of a deadly
weapon.”

Sudden heat is a mitigating factor that reduces what otherwise would be
Murder to Voluntary Manslaughter. The State has the burden of proving
beyond a reasonable doubt that the Defendant was not acting under sudden
heat.

To convict the Defendant of Murder, the State must prove each of the
following elements beyond a reasonable doubt:

1.     The Defendant, Donald Ware,
2.     knowingly
3.     killed Brandon Chadwick Dunson-Taylor, another human being.

If the State failed to prove each of these elements beyond a reasonable doubt,
you must find the Defendant not guilty.


                                      10
      If the State did prove each of these elements beyond a reasonable doubt, but
      the State failed to prove beyond a reasonable doubt that the Defendant was
      not acting under sudden heat, you may find the Defendant guilty of Voluntary
      Manslaughter, a Class B felony, as covered under Count 1. If your finding
      is that the Defendant committed Voluntary Manslaughter, not Murder, and if
      you further find beyond a reasonable doubt that the offense was committed
      by means of a deadly weapon, you may find the defendant guilty of
      Voluntary Manslaughter, a Class A felony, as covered under Count 1.

      If the State did prove beyond a reasonable doubt that the Defendant
      knowingly killed Brandon Chadwick Dunson-Taylor, and the State also did
      prove beyond a reasonable doubt that the Defendant acted without sudden
      heat, you may find the Defendant guilty of Murder, a felony, as charged in
      Count 1.

      If you find the Defendant did not commit Murder or either type of Voluntary
      Manslaughter, then you may consider whether or not the Defendant
      committed the crime of Reckless Homicide, a Class C felony. Reckless
      Homicide, a Class C felony covered under Count 1, is defined as follows:

      “A person who recklessly kills another human being commits Reckless
      Homicide, a Class C felony.”

      To convict the Defendant, the State must prove each of the following
      elements beyond a reasonable doubt:

      1.     The Defendant, Donald Ware,
      2.     recklessly
      3.     killed Brandon Chadwick Dunson-Taylor.

      If the State failed to prove each of these elements beyond a reasonable doubt,
      then you may find the Defendant not guilty.

      If the State did prove each of these elements beyond a reasonable doubt, then
      you may find the Defendant [guilty] of Reckless Homicide, a Class C felony
      covered under Count 1.

Appellant’s App. at 60-63.

      Ware’s trial counsel objected to the voluntary manslaughter instruction on two

grounds: (1) voluntary manslaughter was not an inherently-included offense in this case;


                                           11
and (2) the instruction was misleading. Trial Tr. at 908-09. At a later instruction

conference, his attorney withdrew the objection that the language of the instruction was

misleading, but maintained that the objection that the instruction should not be given

because voluntary manslaughter was not an inherently-included offense. Id. at 1156-57.

Ware’s trial counsel did not submit any alternative instructions.

       Here, the jury was instructed that, in order to prove the offense of murder, if there

is evidence of sudden heat, the State bears the burden of negating the existence of sudden

heat beyond a reasonable doubt. The instruction gave the jury the option of finding Ware

guilty of voluntary manslaughter as an alternative to murder if the State failed to prove

beyond a reasonable doubt that he was not acting under sudden heat. The instruction also

correctly informed the jury that the State had to prove beyond a reasonable doubt both that

Ware had killed the victim and that he had acted without sudden heat before it could find

Ware guilty of murder. Therefore, the jury was properly instructed that the burden

remained with the State for proving lack of sudden heat. Ware’s trial counsel was not

ineffective for not proposing an alternative instruction.

       Ware relies on Sanders v. Cotton, 398 F.3d 572 (7th Cir. 2005) and Eichelberger,

852 N.E.2d 631, to support his argument that his trial counsel should have proposed an

alternative instruction. However, we find those two cases to be distinguishable from the

present case. In both of those cases, the jury instructions incorrectly included the existence

of sudden heat as an element of voluntary manslaughter and informed the jury that the State

had to prove the existence of sudden heat beyond a reasonable doubt. Sanders, 398 F.3d

at 582; Eichelberger, 852 N.E.2d at 635. Further, in those cases, even though the voluntary

                                             12
manslaughter instruction stated that the existence of sudden heat was a mitigating factor

that reduced what would otherwise be murder to voluntary manslaughter, the jury was not

properly informed that the State had the burden of proof for showing the absence of sudden

heat to obtain a murder conviction. Sanders, 398 F.3d at 582-83; Eichelberger, 852 N.E.2d

at 639. Here, the instruction given properly instructed the jury that the State had to prove

the absence of sudden heat beyond a reasonable doubt before the jury could find Ware

guilty of murder. We, therefore, conclude that Ware’s trial counsel was not deficient for

not proposing an alternative jury instruction, and the post-conviction court did not err in

denying Ware’s petition based on this contention.

       Ware next argues that his trial counsel was ineffective for allowing misleading jury

instructions that precluded the jury’s consideration of lesser included offenses.        He

contends that Instruction 21A was misleading because it was both conditional and optional,

which allowed the jury to preclude the consideration of lesser included offenses. He asserts

that the consideration of the included offenses was conditional on the finding of not guilty

for murder and optional because of the non-mandatory phrase, “you may consider.”

Appellant’s Br. at 17. He claims that he was prejudiced by the jury instructions because

the errors contained in them prevented a reasonable jury from finding him guilty of

voluntary manslaughter instead of murder.

       Jury instructions are considered as a whole and in reference to each other. Santiago

v. State, 985 N.E.2d 760, 761 (Ind. Ct. App. 2013), trans. denied. Here, Instruction 21A

was not misleading because Instruction 21B simultaneously instructed the jury of the

State’s burden of proving the absence of sudden heat before the jury could find Ware guilty

                                            13
of murder. Further, we also find the present case distinguishable from Roberson v. State,

982 N.E.2d 452 (Ind. Ct. App. 2013), on which Ware relies for his argument. There, the

jury was instructed on the elements of murder and informed that it did not need to consider

the lesser-included offenses, including voluntary manslaughter, if it found that the State

had proven the elements of murder, and it was not informed that sudden heat would

mitigate murder to voluntary manslaughter. Id. at 460. However, in the present case,

Instruction 21B did inform the jury that the State had the burden of disproving the existence

of sudden heat before the jury could find Ware guilty of murder. Appellant’s App. at 61-

62. We, therefore, conclude that the jury was sufficiently instructed, and Ware’s trial

counsel was not deficient for not objecting to the jury instructions as misleading. The post-

conviction court did not err in finding that Ware’s trial counsel was not ineffective and in

denying Ware’s argument as to the performance of his trial counsel.

                        II. Ineffective Assistance of Appellate Counsel

       Ware contends that he received the ineffective assistance of his appellate counsel.

The standard of review for a claim of ineffective assistance of appellate counsel is the same

as that for trial counsel. Massey v. State, 955 N.E.2d 247, 257 (Ind. Ct. App. 2011) (citing

Bieghler v. State, 690 N.E.2d 188, 192 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998)).

The petitioner must show that counsel’s performance was deficient in that counsel’s

representation fell below an objective standard of reasonableness and that but for appellate

counsel’s deficient performance, there is a reasonable probability that the result of the

appeal would have been different. Id. at 257-58 (citing Overstreet v. State, 877 N.E.2d

144, 165 (Ind. 2007), cert. denied, 555 U.S. 972 (2008)). As with ineffective assistance of

                                             14
trial counsel claims, if it is easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice, that course should be followed. Id. at 258 (citing Timberlake

v. State, 753 N.E.2d 591, 603 (Ind. 2001), cert. denied, 537 U.S. 839 (2002)). There are

three different grounds for claims of ineffective assistance of appellate counsel: (1)

counsel’s actions denied the defendant access to appeal; (2) counsel failed to raise issues

on direct appeal resulting in waiver of those issues; and (3) counsel failed to present issues

well. Id. (citing Wrinkles v. State, 749 N.E.2d 1179, 1203 (Ind. 2001), cert. denied, 535

U.S. 1019 (2002)).

       Ware argues that his appellate counsel was ineffective for failing to raise the issue

of double jeopardy on his two Class D felony criminal recklessness convictions. He asserts

that these two convictions violated double jeopardy because the same evidence used to

convict him of the offenses of murder and battery, the two shots fired, was the same

evidence used to convict him of the two criminal recklessness charges. Ware contends that

this double jeopardy issue was significant and obvious from the record and clearly stronger

than the issues actually raised by his appellate counsel on direct appeal. He, therefore,

claims that his appellate counsel was ineffective, and his post-conviction petition should

have been granted.

       “Ineffective assistance is very rarely found in cases where a defendant asserts that

appellate counsel failed to raise an issue on direct appeal.” Reed v. State, 856 N.E.2d 1189,

1196 (Ind. 2006). This is so because the choice of what issues to raise on appeal is one of

the most important strategic decisions appellate counsel makes. Massey, 955 N.E.2d at

258 (citing Stevens v. State, 770 N.E.2d 739, 760 (Ind. 2002), cert. denied, 540 U.S. 830

                                             15
(2003)). To establish deficient performance for failing to raise an issue, the petitioner must

show that the unraised issue was significant and obvious on the face of the record and that

it was clearly stronger than the issues raised. Id. (citing Fisher v. State, 810 N.E.2d 674,

677 (Ind. 2004)). “‘We give considerable deference to appellate counsel’s strategic

decisions and will not find deficient performance in appellate counsel’s choice of some

issues over others when the choice was reasonable in light of the facts of the case and the

precedent available to counsel at the time the decision was made.’” Brown v. State, 880

N.E.2d 1226, 1230 (Ind. Ct. App. 2008) (quoting Taylor v. State, 717 N.E.2d 90, 94 (Ind.

1999)), trans. denied. We must consider the totality of an attorney’s performance and

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

appellate advocacy.” Reed, 856 N.E.2d at 1195-96.

       The Indiana Double Jeopardy Clause provides, “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). 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.” 717 N.E.2d at 49 (emphasis in original). Ware

contends 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

                                              16
elements of one offense may also have been used to establish all of the essential elements

of a second challenged offense. Bunch v. State, 937 N.E.2d 839, 845-46 (Ind. Ct. App.

2010) (citing Richardson, 717 N.E.2d at 53), trans. denied. Double jeopardy is not violated

when the evidentiary facts establishing the essential elements of one offense also establish

only one or even several, but not all, of the essential elements of a second offense. Moore

v. State, 882 N.E.2d 788, 794 (Ind. Ct. App. 2008) (citing Smith v. State, 872 N.E.2d 169,

176 (Ind. Ct. App. 2007), trans. denied).

       In the present case, the State charged Ware with Class D felony criminal

recklessness in Count 3 for shooting a firearm at or in the direction of Latwon Johnson

(“Johnson”) and with Class D felony criminal recklessness in Count 4 for shooting a

firearm at or in the direction of Jude Sayles (“Sayles”). Ware was also charged with murder

in Count 1 for knowingly killing Dunson by shooting a firearm at him and with Class C

felony battery for knowingly touching Dyer in a rude, insolent, or angry manner by

shooting at him with a firearm and hitting him in the leg. A person commits Class D felony

criminal recklessness if the person “recklessly, knowingly, or intentionally performs an act

that creates a substantial risk of bodily injury to another person” while armed with a deadly

weapon. Ind. Code § 35-41-2-2(b), (c). A person commits murder if the person knowingly

or intentionally kills another human being. Ind. Code § 35-42-1-1(1). A person commits

Class C felony battery if the person knowingly or intentionally touches another person in

a rude, insolent, or angry manner and that touching results in serious bodily injury to any

other person or if it is committed by means of a deadly weapon. Ind. Code § 35-42-2-

1(a)(3).

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       The facts supporting Ware’s conviction for murder demonstrate that Ware killed

Dunson by shooting Dunson with a firearm, and the facts supporting Ware’s conviction for

Class C felony battery demonstrate that Ware caused serious bodily injury to Dyer by

shooting him with a firearm. The evidence at trial showed that Johnson and Sayles were

both close to Dunson and Dyer when Ware shot his firearm at them, so Ware’s convictions

for Class D felony criminal recklessness were supported by the evidence that Ware shot

his firearm in the direction of all four of the boys, endangering both Johnson and Sayles.

Because different victims were involved in the murder and the battery and in each count of

criminal recklessness, different evidence was used to convict Ware of each of the crimes.

In situations where the defendant harms or threatens harm to distinct victims, double

jeopardy is not violated by multiple convictions. Bunch, 937 N.E.2d at 847; see also Bald

v. State, 766 N.E.2d 1170, 1172 n.4 (Ind. 2002) (double jeopardy is not violated where

convictions arise from situation where separate victims are involved); Rawson v. State, 865

N.E.2d 1049, 1055 (Ind. Ct. App. 2007) (where convictions arise from situation where

separate victims are involved, no double jeopardy violation exists), trans. denied. Ware’s

convictions did not violate double jeopardy, and therefore his appellate counsel was not

ineffective failing to raise a double jeopardy issue on direct appeal. We conclude that Ware

did not receive ineffective assistance of either his trial or appellate counsel, and the post-

conviction court did not err in denying his petition for post-conviction relief.

       Affirmed.

FRIEDLANDER, J., and BAILEY, J., concur.



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