Pursuant to Ind. Appellate Rule 65(D), 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:

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

CYNTHIA L. PLOUGHE                                 EMILY J. WITNEY
Deputy Attorney General                            Deputy Public Defender
Indianapolis, Indiana                              Indianapolis, Indiana

                                                                         Mar 15, 2013, 9:03 am


                               IN THE
                     COURT OF APPEALS OF INDIANA

STATE OF INDIANA,                                  )
                                                   )
       Appellant-Respondent,                       )
                                                   )
               vs.                                 )      No. 02A04-1209-PC-476
                                                   )
MARK M. HAIRSTON,                                  )
                                                   )
       Appellee-Petitioner.                        )


                       APPEAL FROM THE ALLEN SUPERIOR COURT
                         The Honorable Robert J. Schmoll, Senior Judge
                                Cause No. 02D04-0708-PC-95



                                         March 15, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       In 2005, a jury convicted Mark M. Hairston of multiple felonies, including class A

felony kidnapping, class B felony aiding criminal deviate conduct, two cocaine-related

offenses, and battery. The jury also found him to be a habitual offender and a repeat sexual

offender. The trial court sentenced him to 147 years. On direct appeal in 2006, this Court

affirmed his convictions and sentence.

       Hairston later filed a petition for post-conviction relief, claiming that his appellate

counsel provided ineffective assistance by failing to raise on direct appeal the issue of

insufficiency of evidence to prove the habitual offender count against him. The post-

conviction court agreed and vacated his thirty-year habitual offender enhancement.

       The State now appeals, claiming that the post-conviction court erred in vacating the

habitual offender finding against Hairston. We reverse.

                              Facts and Procedural History

       In March 2005, J.W. and her friend went to Hairston’s home to pay a debt. While

there, they smoked crack cocaine with Hairston and several of Hairston’s friends. Later that

night, Hairston told J.W. that her debt was not paid and that she was not allowed to leave.

Over the next several days, Hairston repeatedly ordered J.W. to forge and cash checks

belonging to another woman. At one point, when J.W. was unsuccessful at cashing a check,

Hairston beat her and forced her into a cubbyhole under his staircase. He would not allow

her out of the cubbyhole except to have forced sex with several different men or to perform

oral sex on a man while Hairston watched. J.W. was eventually able to call 911 while


                                              2
attempting to cash another check, and police apprehended Hairston.

         The State charged Hairston with class A felony kidnapping, two counts of class B

felony criminal deviate conduct (later dismissed), class B felony aiding criminal deviate

conduct, class B felony dealing cocaine, class C felony possession of cocaine, class C felony

aiding battery, and class A misdemeanor battery. The State later added a habitual offender

count and a repeat sexual offender count.      A jury found Hairston guilty of the charged

crimes and subsequently found him to be a habitual offender and repeat sexual offender. The

trial court sentenced him to 147 years, which included a thirty-year enhancement for the

habitual offender finding and a ten-year enhancement for the repeat sexual offender finding.

         Hairston filed a direct appeal, in which his newly appointed counsel raised three

issues: sufficiency of evidence to support his kidnapping conviction, sufficiency of evidence

to support his aiding criminal deviate conduct conviction, and the appropriateness of his

sentence.     Another panel of this Court affirmed his convictions and sentence in a

memorandum decision. Hairston v. State, No. 02A03-0602-CR-94 (Ind. Ct. App. Dec. 14,

2006).

         Hairston subsequently filed a petition for post-conviction relief, claiming that his

appellate counsel provided ineffective assistance by failing to challenge the sufficiency of

evidence to support the habitual offender finding. After a hearing, the post-conviction court

issued an order granting his petition and vacating the habitual offender count. Regarding the

habitual offender enhancement, the post-conviction court found in pertinent part,

         7.    At the evidentiary hearing in this cause [Hairston] produced evidence
               from [trial counsel] Kraus that she had stated to [appellate counsel]

                                              3
      Witte that there was an issue relating to the habitual offender phase that
      should be raised upon appeal.

8.    At the evidentiary hearing in this cause appellate counsel … Witte,
      testified that attorney Kraus had in fact mentioned the issue relating to
      the habitual offender. [Appellate counsel] Witte further testified that he
      did not know why he did not raise that issue on appeal.

9.    As set out above, [Hairston] was found to be a habitual offender as it
      related to count IX of the charging information[]. The State alleged
      that [Hairston] had accumulated two prior unrelated felony convictions.
      One in 02D04-9604-DF-204 [the 1996 sexual battery] and the second
      conviction in 02C01-8906-CF-99 and/or 02C01-8906-CF-99A [the
      1989 robbery].

10.   The prosecutor called the lead detective in the [1996 sexual battery]
      cause, Ken Clement [sic] to testify that [Hairston] was the same person
      involved in the criminal case which was referenced in the State’s
      exhibit 79 [02D04-9604-DF-204].

11.   In examining the record there does not appear any supporting evidence
      to connect [Hairston] as to the items contained in [S]tate’s exhibit 80
      [02C01-8906-CF-99].

12.   When the State rested in the habitual offender phase of the trial
      Attorney Kraus requested a directed verdict. Among other things she
      noted that on April 3, 1997, the Indiana Court of Appeals vacated the
      habitual offender enhancement imposed in the [1996 sexual battery]
      cause because there was insufficient evidence to connect [Hairston] to
      the defendant in one of the predicate offenses, the [1989 robbery].
      Hairston v. State, 02A03-9611-CR-412 (Ind. App. 1997 memorandum
      opinion). Attorney Kraus argued that the State used substantially the
      same evidence to prove [Hairston’s] habitual offender status in that
      case as it did in this cause. Attorney Kraus cited cases stating that
      certified copies of the judgment must be supported by evidence that
      identifies the defendant as being the same person named in the
      documents.

13.   The Court denied the directed finding.

14.   During the evidence presented at the trial there was conflicting
      evidence presented as to the defendant in the [1989 robbery] cause’s

                                      4
              date of birth.

       ….

       16.    There exists the probability that the result of [Hairston’s] appeal would
              have been different had the appellate counsel raised the issue of the
              evidence on the habitual offender enhancement.

       17.    [Hairston] has therefore shown by a preponderance of the evidence that
              appellate counsel was in fact ineffective.

       18.    The Petition for Post-Conviction Relief is therefore granted as to the
              contention relating to the habitual offender enhancement.

       19.    The Court therefore orders that the Habitual Offender finding on Count
              IX be vacated.

Appellant’s App. at 520-21.

       The State now appeals. Additional facts will be provided as necessary.

                                 Discussion and Decision

       The State challenges the post-conviction court’s judgment granting Hairston’s petition

for post-conviction relief. The petitioner in a post-conviction proceeding “bears the burden

of establishing grounds for relief by a preponderance of the evidence.” Ind. Post-Conviction

Rule 1(5); Brown v. State, 880 N.E.2d 1226, 1229 (Ind. Ct. App. 2008), trans. denied.

When issuing its decision to grant or deny relief, the post-conviction court must issue

findings of fact and conclusions of law. Ind. Post-Conviction Rule 1(6). When the State

appeals a judgment granting post-conviction relief, we apply the clearly erroneous standard

of review prescribed by Indiana Trial Rule 52(A). State v. Hammond, 761 N.E.2d 812, 814

(Ind. 2002). In conducting such review, we neither reweigh evidence nor judge witness

credibility; rather, we consider only the evidence and reasonable inferences most favorable to

                                              5
the judgment. Id. “A post-conviction court’s findings and judgment will be reversed only

upon a showing of clear error—that which leaves us with a definite and firm conviction that a

mistake has been made.” Brown, 880 N.E.2d at 1230 (citation and quotation marks omitted).1

        In his petition for post-conviction relief, Hairston claimed that he received ineffective

assistance of counsel based on his appellate counsel’s failure to challenge the sufficiency of

evidence to support the habitual offender finding. A petitioner must satisfy two components

to prevail on an ineffective assistance claim. Id. He must demonstrate both deficient

performance and prejudice resulting from it. Strickland v. Washington, 466 U.S. 668, 687

(1984). Deficient performance is “representation that fell below an objective standard of

reasonableness, committing errors so serious that the defendant did not have the ‘counsel’

guaranteed by the Sixth Amendment.” Brown, 880 N.E.2d at 1230. We assess counsel’s

performance based on facts that are known at the time and not through hindsight.

Shanabarger v. State, 846 N.E.2d 702, 709 (Ind. Ct. App. 2006), trans. denied. “[C]ounsel’s

performance is presumed effective, and a defendant must offer strong and convincing



        1
            The State relies on Weatherford v. State, 619 N.E.2d 915 (Ind. 1993), and Lingler v. State, 644
N.E.2d 131 (Ind. 1994), in asserting that in a post-conviction proceeding, Hairston must “demonstrate that he
was not an habitual offender under the laws of the state” and cannot prevail merely by asserting that the State
did not carry its burden of proof. Weatherford, 619 N.E.2d at 917-18. We disagree. To the extent that the
State essentially challenges the propriety of raising the habitual offender challenge via an ineffective assistance
claim, we note that based on Post-Conviction Rule 1(8) and our supreme court’s more recent decisions, a
habitual offender sufficiency challenge could not be raised as a freestanding claim of error in a post-conviction
proceeding today. See, e.g., Canaan v. State, 683 N.E.2d 227, 235 (Ind. 1997) (“An available grounds for
relief not raised at trial or on direct appeal is not available as a grounds for collateral attack.”). Rather, “[i]n
post-conviction proceedings, complaints that something went awry at trial are generally cognizable only when
they show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or
direct appeal.” Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002) (emphasis added). Hairston properly
presented his challenge to the habitual offender finding via an ineffective assistance of counsel claim, and we
review it accordingly.


                                                         6
evidence to overcome this presumption.” Ritchie v. State, 875 N.E.2d 706, 714 (Ind. 2007).

Prejudice occurs when a reasonable probability exists that, “but for counsel’s errors the result

of the proceeding would have been different.” Brown, 880 N.E.2d at 1230. We can dispose

of claims upon failure of either component. Id.

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

identical to the standard for trial counsel. Lowery v. State, 640 N.E.2d 1031, 1048 (Ind.

1994), cert. denied (1995). The petitioner must establish deficient performance by appellate

counsel resulting in prejudice. Id. “Ineffective assistance of appellate counsel claims

generally fall into three basic categories: (1) denial of access to an appeal, (2) waiver of

issues, and (3) failure to present issues well.” Henley v. State, 881 N.E.2d 639, 644 (Ind.

2008). “[T]he decision of what issues to raise is one of the most important strategic

decisions to be made by appellate counsel.” Reed v. State, 856 N.E.2d 1189, 1196 (Ind.

2006). In evaluating whether appellate counsel performed deficiently by failing to raise an

issue on appeal, we apply the following test: (1) whether the unraised issue is significant and

obvious from the face of the record and (2) whether the unraised issue is “clearly stronger”

than the raised issues. Henley, 881 N.E.2d at 645. For countless years, experienced

advocates have “emphasized the importance of winnowing out weaker arguments on appeal

and focusing on one central issue if possible, or at most a few key issues.” Bieghler v. State,

690 N.E.2d 188, 194 (Ind. 1997), cert. denied (1998) (citation and quotation marks omitted).

Thus, when reviewing these types of claims, we should be particularly deferential to

appellate counsel’s strategic decision to exclude certain issues in favor of other issues more


                                               7
likely to result in a reversal. Id. As a result, “[i]neffective assistance is very rarely found in

cases where a defendant asserts that appellate counsel failed to raise an issue on direct

appeal.” Reed, 856 N.E.2d at 1196.

       In Hairston’s direct appeal, counsel raised sufficiency of evidence challenges to two

of the counts on which he was convicted and a challenge to the appropriateness of his 147-

year sentence pursuant to Indiana Appellate Rule 7(B). Counsel argued that the evidence

was insufficient to support the kidnapping conviction because J.W. had been afforded some

freedom of movement that involved being sent out of the house to cash checks. Counsel also

challenged the sufficiency of evidence to support the aiding in criminal deviate conduct

conviction by claiming that witness testimony tended to indicate that Hairston did not take

part in the sexual crimes committed against J.W. With respect to his sentence, he received

maximum and consecutive terms for each conviction and argued that the severity of so long a

term rendered it inappropriate in light of the nature of the offenses and his character.

Another panel of this Court rejected these arguments and affirmed Hairston’s convictions and

sentence.

       To establish that Hairston is a habitual offender, the State was required to prove

beyond a reasonable doubt that he had been previously convicted of two separate and

unrelated felonies. Ind. Code § 35-50-2-8. To be “unrelated,” the defendant must have

committed the second felony after being sentenced for the first and must have been sentenced

for the second felony prior to committing the current felony for which the enhanced sentence

was sought. Lewis v. State, 769 N.E.2d 243, 246 (Ind. Ct. App. 2002), trans. denied.


                                                8
       While certified copies of judgments or commitments containing the same or
       similar name as the defendant may be introduced to prove the commission of
       prior felonies, there must be other supporting evidence to identify defendant as
       the same person named in the documents. This proof of identity may be in the
       form of circumstantial evidence. A sufficient connection between the
       documents and the defendant is made if the evidence yields logical and
       reasonable inferences from which the trier of fact may determine it was indeed
       the defendant who was convicted of the two felonies alleged.

Baxter v. State, 522 N.E.2d 362, 365 (Ind. 1988).

       At the post-conviction hearing, Hairston claimed that the State did not present

sufficient evidence of his identity to connect him to the 1989 robbery. During the habitual

offender phase of Hairston’s trial, the State introduced Exhibits 79 and 80 as certified

documentary evidence of prior unrelated felony convictions committed by a person named

“Mark M. Hairston.”      State’s Exhibit 79 contains certified documentation regarding

Hairston’s 1996 class D felony sexual battery conviction and consists of the chronological

case summary (“CCS”), charging information, and judgment of conviction. It contains

Hairston’s name, mailing address, birthdate (“8/7/1967”), and social security number. State’s

Ex. 79. As supporting evidence, the investigating officer in Hairston’s 1996 sexual battery

case, Detective Garry Hamilton, positively identified Hairston as the person convicted of

sexual battery in 1996. Thus, having positively established by supporting testimony

Hairston’s identity as the convicted person described in Exhibit 79, the State provided the

link between the “Mark M. Hairston” present in the courtroom and the “Mark M. Hairston”

described in State’s Exhibit 79 as the person convicted of the 1996 sexual battery felony.

Consequently, the jury could use its powers of observation to compare that information with

the information contained in Exhibit 80 and draw reasonable inferences therefrom.

                                              9
       State’s Exhibit 80 consists of certified copies of the CCS, charging information,

dockets, judgment of conviction, and sentencing order for the 1989 robbery. This exhibit

lists the person convicted of the 1989 robbery as bearing the identical name and street

address as that which had been established in Exhibit 79 and supported by Detective

Hamilton’s testimony as being Hairston’s. Exhibit 80 lists the convicted person’s date of

birth as “8/7/66 or 8/7/67,” the latter of which is established by both State’s Exhibit 79 and

other evidence in the record as Hairston’s date of birth. State’s Ex. 80 (emphasis added).

The social security number listed in State’s Exhibit 80 appears in both full and redacted form.

In its full form, there is a discrepancy in one of the middle digits when compared with the full

social security number listed in State’s Exhibit 79. On that basis, the post-conviction court

characterized the State’s habitual offender exhibits as “conflicting” and concluded that

“[t]here exists the probability that the result of [Hairston’s] appeal would have been different

had the appellate counsel raised the issue of the evidence on the habitual offender

enhancement.” Appellant’s App. at 520-21.

       We disagree and note that such discrepancies are not dispositive. In Lewis v. State,

554 N.E.2d 1133 (Ind. 1990), our supreme court found the evidence sufficient to support a

habitual offender finding despite a discrepancy between the defendant’s social security

number in the documents pertaining to the prior convictions and the social security number

that he gave to the jailer when incarcerated for his current conviction. Id. at 1137.

       Both Hairston (via a motion for directed verdict on the habitual offender count) and

the post-conviction court (in its findings) emphasized this Court’s vacation of Hairston’s


                                              10
habitual offender finding in his 1997 direct appeal of his sexual battery conviction for failure

to connect him to the predicate offenses. However, our supreme court has held that a

previous habitual offender outcome involving the same defendant is not relevant even where

the predicate offenses were the same. Mers v. State, 496 N.E.2d 75, 80 (Ind. 1986). Rather,

the previous determination merely establishes that based on the evidence presented at that

time, the defendant should not have been sentenced as a habitual offender with respect to the

predicate offenses then existing. Id. Also, in contrast to the present case, the State in

Hairston’s 1996 sexual battery case did not present any supporting testimony linking the

defendant sitting in the courtroom (Hairston) to the convicted person listed in the predicate

offense documents. In contrast, here, the trial court denied Hairston’s motion for directed

verdict, noting that, this time, there was supporting testimony connecting Hairston to the

convicted person listed in the certified documents. The trial court concluded that the jury

could evaluate the testimony as well as the similarities and minor discrepancies contained in

the documents and reach its decision on the habitual offender count.

       Hairston’s jury, acting within its province as factfinder, used the supporting testimony

and the circumstantial evidence contained in the certified documents to draw the reasonable

inference that the “Mark M. Hairston[s]” listed in the certified documents, living at the same

address, and bearing the same birth date and an almost identical social security number, were

not two separate persons, but one person—the Hairston sitting before them in the courtroom.

The minor deviation between the numbers was a matter for the factfinders to weigh, not for a

subsequent tribunal to reweigh. As such, we conclude that the unraised challenge to the


                                              11
habitual offender finding is not “significant and obvious from the face of the record.”

Henley, 881 N.E.2d at 645.

       Likewise, the habitual offender issue is not “clearly stronger” than the issues raised in

Hairston’s direct appeal. Id. Hairston raised two sufficiency issues on direct appeal:

sufficiency of evidence to support his kidnapping conviction and sufficiency of evidence to

support his aiding in deviate conduct conviction. As previously noted, the evidence

concerning the victim’s comings and goings from Hairston’s home to cash the fraudulent

checks indicated that she might have had some freedom of movement during her alleged

confinement. When she eventually called 911, she was unaccompanied inside a store where

she was attempting to cash a check. The evidence regarding the perpetration of sex offenses

against the victim implicated persons other than Hairston. On direct appeal, Hairston also

challenged his sentence as inappropriate. This challenge was worthwhile, since he received

maximum and consecutive sentences for each conviction and an aggregate term of nearly 150

years. Notably, this Court characterized Hairston’s sentence as “severe” before concluding

that it was not inappropriate due to horrific nature of his offenses and his extensive criminal

history. Petitioner’s Ex. H. Simply put, a sufficiency challenge to the habitual offender

finding would not have been “clearly stronger” than the other issues raised in Hairston’s

direct appeal, and there is not a reasonable probability that raising it would have changed the

outcome of that appeal.

       Based on the foregoing, we conclude that the post-conviction court clearly erred in

concluding that Hairston’s appellate counsel provided ineffective assistance and in vacating


                                              12
Hairston’s habitual offender count on that basis. Accordingly, we reverse.

      Reversed.

KIRSCH, J., and BARNES, J., concur.




                                           13
