MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             Oct 06 2015, 8:37 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana
James T. Acklin                                          Ian McLean
Chief Deputy Public Defender                             Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jason D. Smith,                                          October 6, 2015
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         48A05-1503-PC-118
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Newman,
Appellee-Respondent                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         48C03-1401-PC-7



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A05-1503-PC-118 | October 6, 2015     Page 1 of 9
[1]   Jason Smith appeals the judgment of the post-conviction court denying his

      petition for post-conviction relief. Finding no error, we affirm.


                                                     Facts
[2]   On September 12, 2012, Smith knocked on the door of Dustin Landrum’s

      apartment and asked if he could use Landrum’s phone. Landrum told Smith

      that he did not have a phone and asked Smith to leave. Smith then spit on

      Landrum, brandished a knife, and threatened to attack him. Landrum called

      the police.


[3]   Officers found Smith a short while later sitting on the porch of a house down

      the street from Landrum’s apartment. Smith walked towards the officers with

      his hands in his pockets, ignoring their requests that he keep his hands visible.

      When the officers decided to handcuff Smith, he struggled and attempted to

      pull his arms away. Once Smith was successfully handcuffed, the officers

      searched his pockets and found a knife as well as a hypodermic needle.


[4]   Smith again resisted when the officers tried to place him in their vehicle and

      continued behaving in an unruly manner once the vehicle was moving—kicking

      the door and damaging its hinges in an attempt to jump out. The officers had

      to pull over so that Smith could be transferred to a more secure vehicle. Once

      Smith was transferred, one of the officers noticed that his cell phone was

      missing. This cell phone was later found in Smith’s possession when he arrived

      at Madison County Jail.



      Court of Appeals of Indiana | Memorandum Decision 48A05-1503-PC-118 | October 6, 2015   Page 2 of 9
[5]   On January 14, 2013, Smith pleaded guilty to class D felony intimidation, class

      D felony unlawful possession of a syringe, class D felony theft, and class A

      misdemeanor resisting law enforcement. The agreement left sentencing to the

      discretion of the trial court. It also provided that Smith waived the right to

      appeal the sentence imposed by the trial court so long as the trial court

      sentenced Smith within the terms of the plea agreement.


[6]   The trial court held a sentencing hearing on January 28, 2013. The State

      argued that the trial court should impose three-year terms for each class D

      felony conviction. The State asked that these terms be run consecutively as it

      believed Smith’s offenses were sufficiently separate and unrelated. Smith’s

      attorney responded:

              Judge, these sentences can most be appropriately be ran [sic]
              concurrent[ly]. They were part of one criminal episode to which
              my client has readily admitted that he was involved. And that is
              a mitigating factor in your sentence and consideration.


      Ex. A p. 20-21. Following the hearing, the trial court sentenced Smith to three-

      year consecutive terms for his intimidation, unlawful possession of a syringe,

      and theft convictions, and to a concurrent one-year term for resisting law

      enforcement. This resulted in a total term of nine years.


[7]   Smith did not directly appeal this sentence. Instead, in May 2013, Smith filed a

      motion to correct erroneous sentence with the trial court, arguing that his




      Court of Appeals of Indiana | Memorandum Decision 48A05-1503-PC-118 | October 6, 2015   Page 3 of 9
      offenses constituted a single episode of criminal conduct. At the time that

      Smith committed his offenses, Indiana Code section 35-50-1-2(c)1 provided:


               [E]xcept 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.


      Accordingly, Smith argued that his term of imprisonment should not have

      exceeded four years—the advisory term for a class C felony. I.C. § 35-50-2-6.

      The trial court denied Smith’s motion on September 22, 2013.


[8]   On January 23, 2014, Smith filed a petition for post-conviction relief. Smith

      argued that his trial counsel had provided him with ineffective assistance by

      failing to argue that his offenses arose out of a single episode of criminal

      conduct. The post-conviction court denied Smith’s petition, reasoning that

      Smith had waived his claim by failing to raise it on direct appeal, that Smith’s

      attorney had, in fact, argued that his offenses constituted a single episode of

      criminal conduct, and that, waiver notwithstanding, his offenses were separate

      and not subject to the single episode cap. Smith now appeals.




      1
        Recent amendments to this section took effect on July 1, 2014. We cite the version of this section that was
      in effect at the time Smith committed his offenses.

      Court of Appeals of Indiana | Memorandum Decision 48A05-1503-PC-118 | October 6, 2015              Page 4 of 9
                                    Discussion and Decision
[9]    When appealing from the denial of a petition for post-conviction relief, the

       petitioner “must establish that the evidence, as a whole, unmistakably and

       unerringly points to a conclusion contrary to the post-conviction court’s

       decision.” Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000). We accept the

       post-conviction court’s findings of fact unless they are clearly erroneous but we

       do not defer to its conclusions of law. Bigler v. State, 732 N.E.2d 191, 194 (Ind.

       Ct. App. 2000).


[10]   Smith argued before the post-conviction court that all of his offenses arose out

       of a single episode of criminal conduct. On appeal, he has changed his

       position, and now argues that only his intimidation and unlawful possession of

       a syringe convictions arose out of a single episode of criminal conduct.

       Accordingly, Smith believes that the six-year portion of his term relating to

       these convictions should be reduced to four years, as would be required under

       Indiana Code section 35-50-1-2(c).


[11]   In support of his argument, Smith relies on decisions of this Court holding that

       when “a defendant possesses contraband on his person as he simultaneously

       commits other criminal offenses, the offenses should be deemed part of a single

       episode of criminal conduct.” Johnican v. State, 804 N.E.2d 211, 218 (Ind. Ct.

       App. 2004); see also Cole v. State, 850 N.E.2d 417 (Ind. Ct. App. 2006); Ratliff v.

       State, 741 N.E.2d 424, 436 (Ind. Ct. App. 2000) (Mathias J., dissenting). Other

       decisions of this Court appear to be at odds with this holding. See Deshazier v.


       Court of Appeals of Indiana | Memorandum Decision 48A05-1503-PC-118 | October 6, 2015   Page 5 of 9
       State, 877 N.E.2d 200, 212 (Ind. Ct. App. 2007) (consecutive sentences for

       resisting arrest, carrying an unlicensed handgun, and possession of marijuana

       upheld where evidence indicated that defendant “must have come into

       possession of the handgun and marijuana at some point before he encountered

       the officers.”); Ratliff, 741 N.E.2d at 432.


[12]   Assuming that these holdings need clarification, we are not presented with an

       opportunity to do so in this case. Smith has certainly waived this issue by

       failing to bring a direct appeal and his attempt to reframe it as an ineffective

       assistance of counsel claim fails because his counsel clearly raised this issue

       before the trial court.


[13]   Our Supreme Court has made clear that post-conviction proceedings do not

       substitute for direct appeals and “[i]ssues that were available, but not presented,

       on direct appeal are forfeited on post-conviction review.” Ben-Yisrael, 738

       N.E.2d at 258. Smith does not maintain that this issue was unknown or

       unavailable when he was sentenced. He instead argues that he “could not have

       raised the claim on direct appeal” as his “written plea agreement provided that

       he waived the right to appeal his sentence.” Appellant’s Br. p. 14.


[14]   Smith directs our attention to Crider v. State, in which our Supreme Court

       observed that “our jurisdprudence stands for the proposition that in Indiana, a

       defendant can waive his right to appeal an illegal sentence” so long as such

       sentence is “explicitly provided for in the plea agreement.” 984 N.E.2d 618,

       623-24 (Ind. 2013). However, the Court made clear that this was only the case


       Court of Appeals of Indiana | Memorandum Decision 48A05-1503-PC-118 | October 6, 2015   Page 6 of 9
       where such sentences were explicitly provided for in the plea agreement and

       that “the ‘default rule’ for plea agreements is that sentences will be determined

       and imposed legally, where there is no agreement otherwise.” Id. at 625.


[15]   Smith incorrectly asserts that Crider announced a new rule of law and that, as it

       was decided several months after he was sentenced, there was no authority

       under which he could appeal his sentence at the time. However, Crider

       announced no new rule but merely explained the law as it stood. Id. at 622-25.

       Applied to Smith’s case, Crider makes clear that Smith could certainly have

       appealed a sentence he believed to be illegal, as his plea agreement did not

       explicitly provide for an illegal sentence but instead left sentencing open to the

       trial court. Ex. B p. 25.


[16]   Smith next attempts to avoid waiver by framing his claim as one of ineffective

       assistance of counsel. To prevail on a claim of ineffective assistance of counsel,

       Smith must show that his trial counsel committed specific errors that fell below

       an objective standard of reasonableness and that Smith was prejudiced by these

       errors. Hardy v. State, 786 N.E.2d 783, 786 (Ind. Ct. App. 2003) (citing

       Strickland v. Washington, 466 U.S. 668 (1984)).


[17]   Here, we need not begin this analysis because the record makes clear that

       Smith’s trial counsel did not commit the errors Smith alleges. At the sentencing

       hearing, Smith’s trial counsel argued that Smith’s offenses constituted a single

       episode of criminal conduct, stating:




       Court of Appeals of Indiana | Memorandum Decision 48A05-1503-PC-118 | October 6, 2015   Page 7 of 9
               Judge, these sentences can most be appropriately be ran [sic]
               concurrent[ly]. They were part of one criminal episode to which
               my client has readily admitted that he was involved. And that is
               a mitigating factor in your sentence and consideration.


       Ex. A p. 20-21.


[18]   Smith maintains that this statement portrays a misunderstanding of the law

       because it implies that the law requires sentences for offenses committed during

       a single episode of criminal conduct to be run concurrently. Smith is correct to

       point out that this is not the case, and that instead, Indiana Code section 35-50-

       1-2, if applied, would have capped his total sentence at the advisory term for a

       class C felony, which is one class higher than the most serious class of felony

       that Smith committed.


[19]   We note that, even had such an implication existed, it would not have been to

       Smith’s detriment. Had his terms been run concurrently, he would have

       received a three-year sentence, which would have been preferable to the four-

       year sentence he would have received had the episode cap applied. However,

       we find no such implication in the above-quoted language and understand

       Smith’s trial counsel to have argued alternatively that Smith’s sentences should

       be run concurrently and that his offenses arose out of one episode of criminal

       conduct. We find that trial counsel’s decision to make both arguments was

       entirely appropriate and in Smith’s interest.


[20]   We need not decide whether Smith’s offenses arose out of a single episode of

       criminal conduct. Smith’s failure to raise the issue on direct appeal means that

       Court of Appeals of Indiana | Memorandum Decision 48A05-1503-PC-118 | October 6, 2015   Page 8 of 9
       it is not now properly before us. The issue was clearly known and available to

       Smith immediately following his sentencing and was, in fact, put before the trial

       court for its consideration. Accordingly, we find that Smith has waived the

       issue and that his counsel did not render ineffective assistance.


[21]   The judgment of the post-conviction court is affirmed.


       Robb, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A05-1503-PC-118 | October 6, 2015   Page 9 of 9
