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:

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

LINDA G. NICHOLSON                               IAN MCLEAN

                                                                               FILED
Deputy Public Defender                           Deputy Attorney General
Indianapolis, Indiana                            Indianapolis, Indiana
                                                                               Oct 4 2012, 9:30 am



                               IN THE                                                CLERK
                     COURT OF APPEALS OF INDIANA
                                                                                   of the supreme court,
                                                                                   court of appeals and
                                                                                          tax court




D.B.,                                            )
                                                 )
        Appellant-Petitioner,                    )
                                                 )
               vs.                               )      No. 20A05-1201-PC-18
                                                 )
STATE OF INDIANA,                                )
                                                 )
        Appellee-Respondent.                     )


                     APPEAL FROM THE ELKHART CIRCUIT COURT
                         The Honorable Terry C. Shewmaker, Judge
                              Cause No. 20C01-1003-PC-10




                                      October 4, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                         Case Summary and Issue

      D.B. was convicted of murder, a felony, and sentenced to sixty years in prison

with five years suspended to probation. The post-conviction court denied his claim that

he received ineffective assistance of trial counsel. He raises one issue for our review,

which we restate as whether the post-conviction court erred in denying his petition for

post-conviction relief. Concluding the post-conviction court did nor err, we affirm.

                                       Facts and Procedural History

      On March 8, 2008, Elkhart police responded to a report of gunshots and found

Gerald Wenger dead with a single bullet wound. The State charged D.B. with murder, a

felony, and the juvenile court waived his charges to an adult felony court. A joint jury

trial was held for D.B. and codefendant Joshua Love. Among the evidence offered was

the testimony of jail house informer Mario Morris.

      Morris testified that he spoke with D.B. and Love individually and on separate

occasions in prison. Morris recounted the details of the conversations for the jury,

explaining that each man separately confessed to his respective involvement in Wenger’s

murder, and that neither codefendant mentioned nor implicated the other in any way.

Although no objection was made during Morris’s testimony, D.B. moved for a mistrial

when Morris finished testifying, arguing that admitting Morris’s testimony was a

violation of D.B.’s constitutional rights under Bruton v. U.S. because he could not

compel Love to testify.1 Since Morris’s account of Love’s confession made no mention

of D.B., and vice versa, the trial court concluded that the defendants’ conversations did

not inculpate one another and thus denied the motion. D.B. was found guilty of murder, a

      1
          Bruton, 391 U.S. 123 (1968). Violation criteria will be explained in the discussion.
                                                         2
felony, and was sentenced to an aggregate term of sixty years in prison with five years

suspended to probation.

        D.B. appealed his conviction on several issues, including a claim that the trial

court had abused its discretion in denying his motion for a mistrial on account of a Bruton

violation. This court found that no Bruton violation occurred and affirmed the trial court.

D.B. v. State, 916 N.E.2d 750, *3 (Ind. Ct. App. 2010)(Table), trans. denied.

        D.B. thereafter filed a petition for post-conviction relief, claiming his trial counsel

was ineffective because he failed to file a motion to sever D.B.’s trial from that of his

codefendant. The post-conviction court concluded D.B. failed to establish his counsel

acted unreasonably, and it denied the petition. D.B. now appeals.

                                  Discussion and Decision

                                    I. Standard of Review

        D.B. argues that the post-conviction court erred in denying his petition for post-

conviction relief. On post-conviction relief, the petitioner has the burden of establishing

his grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule

1(5).

        A petitioner who appeals the denial of PCR faces a rigorous standard of
        review, as the reviewing court may consider only the evidence and the
        reasonable inferences supporting the judgment of the post-conviction court.
        The appellate court must accept the post-conviction court’s findings of fact
        and may reverse only if the findings are clearly erroneous. If a PCR
        petitioner was denied relief, he or she must show that the evidence as a
        whole leads unerringly and unmistakably to an opposite conclusion than
        that reached by the post-conviction court.

Roberts v. State, 953 N.E.2d 559, 562 (Ind. Ct. App. 2011) (citations omitted), trans.

denied.

                                               3
                 II. D.B’s Ineffective Assistance of Trial Counsel Claim

       D.B. argues that he did not receive effective assistance of trial counsel based on

his counsel’s failure to move to sever D.B.’s trial from that of his codefendant.

       In order to prevail on a claim of ineffective assistance of counsel, defendant
       must show that (i) defense counsel’s representation fell below an objective
       standard of reasonableness and (ii) there is a reasonable probability that the
       result of the proceeding would have been different but for defense counsel’s
       inadequate representation.

Cook v. State, 675 N.E.2d 687, 692 (Ind. 1996) (citing Strickland v. Washington, 466

U.S. 668 (1984)).

       D.B. argues that admission of Morris’s testimony of the two conversations was a

Bruton violation and that counsel, if acting reasonably, would have moved to sever the

trial from that of his codefendant. In Bruton, the Supreme Court found that “a defendant

is deprived of his Sixth Amendment right of confrontation when the facially

incriminating confession of a nontestifying codefendant is introduced at their joint

trial[.]” Richardson v. Marsh, 481 U.S. 200, 207 (1987) (citing Bruton, 391 U.S. at 135-

136). In our previous opinion on D.B.’s direct appeal, we recognized that, had a Bruton

violation occurred, trial counsel would have waived the right to appeal that issue by

failing to move to sever the trial from that of D.B.’s codefendant. Whether counsel’s

failure would have been unreasonable, however, is irrelevant as this court went on to

decide that no Bruton violation occurred.

       D.B. tries to revisit the issue of whether there was a Bruton violation. “[R]es

judicata bars relitigation of a claim after a final judgment has been rendered when the

subsequent action involves the same claim between the same parties[.]” Hermitage Ins.

Co. v. Salts, 698 N.E.2d 856, 859 (Ind. Ct. App. 1998). “The doctrine of res judicata
                                             4
prevents the repetitious litigation of that which is essentially the same dispute.” Ben-

Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000) (emphasis and citations omitted)(cert.

denied, 534 U.S. 1164 (2002)).

       D.B. tries to circumvent res judicata by arguing that the issue of ineffective

assistance of counsel is separate from the issue of whether a Bruton violation occurred.

However, “[a] petitioner for post-conviction relief cannot escape the effect of claim

preclusion merely by using different language to phrase an issue and define an alleged

error.” Shepherd v. State, 924 N.E.2d 1274, 1281 (Ind. Ct. App. 2010) (quoting Reed v.

State, 856 N.E.2d 1189, 1194 (Ind. 2006)), trans. denied. This is precisely what D.B. is

attempting to do, as the only error D.B. alleges counsel made was failing to avert a

Bruton violation.

       D.B. also attempts to avoid res judicata by arguing that the Bruton issue was not

previously decided on the merits because this court did not address the holdings of Cruz

v. New York, 481 U.S. 186 (1987), and Lee v. Illinois, 476 U.S. 530 (1986). In Cruz, the

Supreme Court held:

       where a nontestifying codefendant’s confession incriminating the defendant
       is not directly admissible against the defendant, the Confrontation Clause
       bars its admission at their joint trial, even if the jury is instructed not to
       consider it against the defendant, and even if the defendant’s own
       confession is admitted against him.”

481 U.S. at 193 (reference omitted); see also Lee v. Illinois, 476 U.S. at 541 (stating “the

Court has spoken with one voice in declaring presumptively unreliable accomplices’

confessions that incriminate defendants.”). D.B. argues that Morris was an unreliable

informant and that his testimony lacked sufficient indicia of reliability under the Lee

standard.   The Cruz and Lee analyses, however, only apply to a “nontestifying
                                             5
codefendant’s confession incriminating the defendant.” Cruz 481 U.S. at 193 (emphasis

added).     Neither Cruz nor Lee modify the Bruton violation requirement that the

codefendant’s pretrial statement be “facially incriminating” to the defendant.

Richardson, 481 U.S. at 207. As this court stated previously, “[e]ach codefendant

confessed to his respective involvement in the crime and provided essentially identical

details. Thus, each was implicated by his own statements to Morris alone, not by the

statements of the other codefendant.” D.B v. State, 916 N.E.2d at *3.

       D.B. fails to prove his counsel’s representation fell below an objective standard of

reasonableness.       As counsel’s representation has not been shown to have been

unreasonable, we need not address whether there is a reasonable probability that the

result of the proceeding would have been different but for defense counsel’s alleged

inadequate representation.

                                        Conclusion

       In support of his claim that he received ineffective assistance of trial counsel, D.B.

fails to raise any issue apart from that of an alleged Bruton violation, an issue already

decided and barred from reconsideration by res judicata. The post-conviction court did

not err when it denied D.B.’s petition for post-conviction relief. Therefore, we affirm the

denial of his petition.

          Affirmed.

BAKER, J., and BRADFORD, J., concur.




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