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,
                                                             FILED
                                                          Jul 26 2012, 9:10 am
collateral estoppel, or the law of the
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ATTORNEYS FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

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

JONATHAN O. CHENOWETH                            MONIKA PREKOPA TALBOT
Deputy Public Defender                           Deputy Attorney General
Indianapolis, Indiana                            Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA


FREDRICK D. GAITHER,                             )
                                                 )
       Appellant-Petitioner,                     )
                                                 )
              vs.                                )      No. 49A02-1202-PC-106
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Respondent.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Kurt M. Eisgruber, Judge
                          Cause No. 49G01-9409-PC-118824


                                       July 26, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
                                     Case Summary

       Fredrick Gaither appeals the denial of his successive petition for post-conviction

relief. We affirm.

                                           Issue

       Gaither raises one issue, which we restate as whether the crimes he committed

constituted a single episode of criminal conduct.

                                           Facts

       The relevant facts recited by the post-conviction court are:

              When Betty Jean Davis went to bed on September 15, 1994,
              her blue 1985 Buick Century was parked in front of her
              home. Sometime later that evening, her car was stolen. At
              8:30 p.m. on that same day, Suzanne Yoder left work and
              went to dinner with friends. When Yoder arrived home later
              that night, she put her car in the garage and walked toward
              her house. As she began to unlock her back door, someone
              came up the steps behind her, put a gun in her face, and said,
              “Be quiet or I’ll kill you.” (R. at 347.) The man took her
              purse and her rings and then rubbed her chest. Yoder asked
              him not to touch her, and he said, “I’m not trying to feel you,
              I’m looking for something.” (Id.) Finding nothing else, the
              man ran away. Yoder entered her house, woke her husband,
              and called the police to report the robbery.

                     A few hours later, at 3:30 a.m. on September 16,
              Alicia Segraves arrived home from work and parked her car
              on the street across from her house. As she was getting out of
              her car, a blue or gray four door Buick Century was driving
              past her. The car stopped, a man got out, put a gun in her
              face, and told her to lie down on the ground. The man began
              going through her shirt to check for necklaces, checking her
              fingers for rings, and feeling her pockets, taking whatever he
              found. When her wallet did not have any money in it, he
              threatened to kill her and asked where her money was.
              Segraves told him her money was in the house. The man
              placed the gun in Segraves back and walked her to the porch.

                                             2
             When Gaither became distracted, Segraves slipped into the
             house, locked the door, and ran upstairs to call the police.

                    One hour later, Wilma and Ceolia [G]raves pulled into
             a driveway and Wilma got out of the car. A blue Buick
             Century pulled up behind them. As Wilma walked around the
             back of Ceolia’s car, a man said something to her that she did
             not understand. When she asked what he said, he knocked
             her down, pulled out a gun, and stood over her telling her he
             was going to kill her. Ceolia told Wilma to give the man her
             purse. Once the man got her purse, he jumped back into the
             car and drove away. Ceolia tried to follow him, while Wilma
             called the police.

                     Fifteen minutes after Wilma was robbed, Indianapolis
             Police Officer Ronald Hicks, who was on routine patrol and
             had heard reports of armed robberies involving a blue or gray
             Buick Century, saw a Buick Century and began following it.
             The driver sped up and turned the wrong way down a one-
             way street. Officer Hicks turned on his emergency lights and
             pursued the Buick. After a high-speed chase, the driver
             abandoned the car and began running. Officer Hicks was able
             to apprehend the man, who was Gaither. Either in the car or
             on Gaither, the police found an unlicensed handgun, a
             screwdriver used to start the stolen car, and the victims’
             property, including the rings stolen from Yoder. The police
             brought Segraves, Wilma, and Ceolia to the scene, and each
             identified Gaither as the robber. Davis was brought to the
             scene and identified her Buick.

                    The State charged Gaither with three counts of robbery
             as a class B felony, one count of auto theft as a class D
             felony, one count of carrying a handgun without a license as a
             Class A misdemeanor, and one count of resisting law
             enforcement as a Class A misdemeanor. A jury found
             Gaither guilty of all charges . . . .

App. pp. 136-137 (quoting Gaither v. State, No. 49A04-0206-PC-282, slip op. at 2-4

(Ind. Ct. App. Feb. 11, 2003) (footnotes omitted)). Gaither was sentenced to twenty

years for each robbery conviction, three years for the auto theft conviction, one year for


                                            3
the resisting law enforcement conviction, and one year for the handgun conviction. The

trial court ordered all of the sentences except one of the robbery convictions to be served

consecutively for a total sentence of forty-five years.

        Gaither appealed his convictions and we affirmed in Gaither v. State, No. 49A02-

9606-CR-393 (Ind. Ct. App. April 17, 1997), aff’d on reh’g. Gaither filed a petition for

post-conviction relief challenging his convictions, and this petition was denied. In 2003,

we affirmed the denial of post-conviction relief in Gaither, No. 49A04-0206-PC-282. After

the 2003 decision affirming the denial of post-conviction relief, Gaither filed six

successive petitions for post-conviction relief, which were denied, and at least two

appeals have been dismissed.

        However, on October 29, 2010, we allowed Gaither to file a successive petition for

post-conviction relief based on his assertion that, because his conduct was a single

episode of criminal conduct, he was being unlawfully restrained. On January 18, 2012,

following a hearing, the post-conviction court denied Gaither’s petition, concluding in

part:

                     It is apparent from a reading of the relevant cases that
              Defendant’s case does not fall within any reasonable concept
              of a “single episode of criminal conduct.” Certainly
              Defendant’s various crimes can be related without reference
              to each other, and each of the crimes occurred separately and
              distinctly: Defendant first stole a car, then some hours later
              robbed his first victim, fled this crime scene, traveled to
              another location and subsequently committed another
              robbery.
                     Moreover, there is no caselaw for Defendant’s
              position. In all cases involving separate victims, the offenses
              have not fallen within the single episode rule unless they
              happened simultaneously or in the same location. . . .

                                              4
              Although Defendant’s crimes were committed within a span
              of hours and involved the same get-away vehicle, they
              occurred in different locations against different victims. As
              such Defendant’s crimes were not part of a single episode of
              criminal conduct and Defendant has failed to meet his burden
              of proof.

App. p. 140. Gaither now appeals.

                                         Analysis

       Gaither argues that the post-conviction court erroneously denied his petition

because his offenses were a single episode of criminal conduct, requiring the reduction of

his forty-five-year sentence to twenty-five years. Generally, the completion of the direct

appeal process closes the door to a criminal defendant’s claims of error in conviction or

sentencing. Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009). However, defendants

whose appeals have been rejected are allowed to raise a narrow set of claims through a

petition for post-conviction relief. Id. (citing Ind. Post-Conviction Rule 1(1)). “The

scope of the relief available is limited to ‘issues that were not known at the time of the

original trial or that were not available on direct appeal.’” Id. (citation omitted). “Issues

available but not raised on direct appeal are waived, while issues litigated adversely to

the defendant are res judicata.” Id.

       A post-conviction court must make findings of fact and conclusions of law on all

issues presented in the petition. Id. (citing P-C.R. 1(6)). The findings must be supported

by the facts, and the conclusions must be supported by the law. Id. “Our review on

appeal is limited to these findings and conclusions.” Id.




                                             5
       The petitioner bears the burden of proof, and an unsuccessful petitioner appeals

from a negative judgment. Id. A petitioner appealing from a negative judgment must

show that the evidence as a whole leads unerringly and unmistakably to a conclusion

opposite to that reached by 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. Id.

       As an initial matter, the State asserts that Gaither waived this challenge by not

raising it in his direct appeal or in his first petition for post-conviction relief. Gaither

responds by arguing that the State waived its waiver argument by raising it for the first

time on appeal. Gaither also argues his claim has not been forfeited by procedural default

because he may challenge an illegal sentence at any time. We need not resolve this

question, however, because, even if Gaither’s claim is properly before us, it is

unsuccessful on the merits.

       According to Gaither, consecutive sentences are not appropriate because his 1994

crimes were a single episode of criminal conduct limiting his sentence to the presumptive

sentence for the next highest class of felony—a Class A felony. The parties agree that

the law in effect at the time Gaither committed the crimes controls. The relevant portion

of the statute, as amended in 1994, provided:

              The court may order terms of imprisonment to be served
              consecutively even if the sentences are not imposed at the
              same time.      However, except for murder and felony
              convictions for which a person receives an enhanced penalty
              because the felony resulted in serious bodily injury if the

                                             6
             defendant knowingly or intentionally caused the serious
             bodily injury, the total of the consecutive terms of
             imprisonment, exclusive of terms of imprisonment under IC
             35-50-2-8 and IC 35-50-2-10, to which the defendant is
             sentenced for felony convictions arising out of an episode of
             criminal conduct shall not exceed the presumptive 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.

Ind. Code 35-50-1-2(a) (1994). The parties also agree that at the time Gaither committed

the offenses the presumptive sentence for the next highest class of felony, a Class A

felony, was twenty-five years. See I.C. § 35-50-2-4 (1994). The parties also appear to

agree that the July 1, 1995 amendment defining “episode of criminal conduct” as

“offenses or a connected series of offenses that are closely related in time, place, and

circumstance” is applicable. I.C. § 35-50-1-2(b) (1995).

      The parties dispute whether Gaither’s conduct was a single episode of criminal

conduct. Relying on Reed v. State, 856 N.E.2d 1189, 1200 (Ind. 2006) and Harris v.

State, 861 N.E.2d 1182, 1188 (Ind. 2007), Gaither asserts that our analysis should not be

based on whether a complete account of one charge can be related without referring to

details of the other charge. In Reed, our supreme court observed that this formulation “is

a bit of an overstatement.” Reed, 856 N.E.2d at 1200. The Reed court explained:

             We are of the view that although the ability to recount each
             charge without referring to the other can provide additional
             guidance on the question of whether a defendant’s conduct
             constitutes an episode of criminal conduct, it is not a critical
             ingredient in resolving the question. Rather, the statute
             speaks in less absolute terms: “a connected series of offenses
             that are closely connected in time, place, and circumstance.”



                                            7
Id. (quoting I.C. § 35-50-1-2(b)).      Citing Reed, the Harris court referred to this

formulation as “problematic” and “broader than necessary” to evaluate a single episode

of criminal conduct claim. Harris, 861 N.E.2d at 1188. Based on these cases, we believe

that the ability to recount each charge separately can, in certain circumstances, be helpful

in determining whether a series of offenses are closely connected in time, place and

circumstance but is not dispositive in determining whether a series of offenses is a single

episode of criminal conduct.

       Gaither asserts that he committed the offenses in less than eight hours, that he

traveled less than one and a quarter miles between each of the robberies, that he used the

stolen car in the commission of the other offenses, that in all three robberies he displayed

a handgun and threatened to kill the victim, and that he felt the victims for jewelry

instead of asking them for it. Accordingly, Gaither argues that the offenses were closely

related in time, place, and circumstance and, therefore, constitute a single episode of

criminal conduct.

       We disagree. Gaither stole Davis’s car from her house, he later robbed Yoder at

her house, then he robbed Segraves at her house, and after that he robbed Graves at her

house. Although the three robberies were committed in a similar manner, they occurred

over the course of a night, in different locations, and against separate victims. We are not

convinced that Gaither’s use of the stolen car to drive to different locations in and of

itself linked the crimes so as to make them a single episode of criminal conduct. To the

contrary, it further demonstrates the distinct time, location, and victim associated with

each offense.

                                             8
      Accordingly, the facts of this case are distinguishable from the cases upon which

Gaither relies. Cf Henson v. State, 881 N.E.2d 36, 39 (Ind. Ct. App. 2008) (holding that

the burglary of two neighboring garages on the same morning was a single episode of

criminal conduct), trans. denied; Fields v. State, 825 N.E.2d 841, 846 (Ind. Ct. App.

2005) (holding that the conspiracy to commit burglary and the attempted robbery that

took place as the conspiracy was carried out amounted to a single episode of criminal

conduct), trans. denied; Jennings v. State, 687 N.E.2d 621, 623 (Ind. Ct. App. 1997)

(holding that the burglary and theft of a hardware store and a subsequent burglary and

arson of the same store on the same night with intent of concealing the first break-in was

a single episode of criminal conduct). Instead, this case is more like Smith v. State, 770

N.E.2d 290, 294 (Ind. 2002), in which Smith stole a checkbook and proceeded to deposit

six checks at six different banks in Marion County over the course of an afternoon.

Although the Smith court acknowledged that each forgery could be recounted without

referencing the others, the court also observed that each forgery occurred at a separate

time, separate place, and for a separate amount of money and was satisfied that the

Smith’s conduct did not constitute a single episode of criminal conduct. Smith, 770

N.E.2d at 294.

      As in Smith, Gaither’s crimes were separate in time, separate in place, and against

separate victims. They did not constitute a single episode of criminal conduct. Gaither

has not established that the evidence as a whole leads unerringly and unmistakably to a

conclusion opposite to that reached by the post-conviction court.



                                            9
                                       Conclusion

       Gaither has not established that the post-conviction court erroneously denied his

successive petition for post-conviction relief. We affirm.

       Affirmed.

FRIEDLANDER, J., and MAY, J., concur.




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