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.


APPELLANT PRO SE:                                    ATTORNEYS FOR APPELLEE:

HENRY LEWIS                                          GREGORY F. ZOELLER
Indiana State Prison                                 Attorney General of Indiana
Michigan City, Indiana
                                                     GEORGE P. SHERMAN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana

                                                                             Jul 28 2014, 9:29 am

                               IN THE
                     COURT OF APPEALS OF INDIANA

HENRY LEWIS,                                         )
                                                     )
       Appellant-Petitioner,                         )
                                                     )
               vs.                                   )      No. 49A04-1307-PC-342
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Respondent.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Mark D. Stoner, Judge
                            Cause No. 49G06-0503-PC-50918



                                           July 28, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       Henry Lewis appeals the denial of his petition for postconviction relief (“PCR”), in

which he argued that he received ineffective assistance of trial and appellate counsel.

Concluding that Lewis has failed to carry his burden to show that the postconviction court’s

decision is contrary to law, we affirm.

                              Facts and Procedural History

       We summarized the facts underlying Lewis’s convictions in our opinion on direct

appeal:

              Marvin Engelking lived in an apartment located inside a commercial
       building on East 10th Street in Indianapolis, Indiana. He worked for the
       building’s owner, Victor Demichieli, who operated a business out of the
       building. The back of the building contained a storage area, which was
       enclosed by a six-foot-high chain link fence topped with barbed wire, where
       trucks and other equipment were stored. The gate to the fence was secured by
       a padlock and chain.

              On March 2, 2005, at approximately 9:30 a.m., Engelking returned to
       the building and discovered the gate to the fence had been “busted open.” As
       soon as Engelking entered the property, he heard the metal door to the building
       slam shut. Engelking noticed that a window to the building had been broken.
       He [] ran to the back of the property and saw a man, later identified as Lewis,
       crawling under a section of fence that had been pried up from the ground.
       Lewis was dressed in green coveralls and was wearing jersey work gloves. As
       Lewis stood up, Engelking noticed that he had a bucket of tools and a
       chainsaw that belonged to Demichieli. Engelking recognized his DeWalt
       hammer drill on top of the bucket.

              Engelking ran after Lewis and followed him down an alley. Because
       Lewis did not know that he was being followed, Engelking was able to catch
       up to him and tap him on the shoulder. Engelking told Lewis that he had
       Engelking’s tools, to which Lewis responded that the tools in his possession
       were not Engelking’s. Engelking told Lewis that he had observed Lewis
       crawling underneath the fence with the tools. Lewis put down the tools and
       began fidgeting in his pocket as though he had a gun or knife. He then

                                             2
       punched Engelking in the face “pretty hard.” Lewis swung the chainsaw at
       Engelking, but Engelking was able to step out of the way. Lewis grabbed a
       circular saw from the bucket and ran off with both it and the chainsaw.
       Engelking pursued Lewis, and while doing so, he saw a utility van and asked
       the driver to call the police. Engelking continued his pursuit and observed
       Lewis place the two saws into a dumpster. Engelking used his two-way radio
       to call Demichieli and inform him of the robbery and the location of the saws.
       Shortly thereafter, the police arrived, and Engelking indicated the direction in
       which the robber had run.

              Indianapolis Police Officer Mark Rand, who arrived to participate in the
       chase, observed Lewis walk toward another marked police car traveling in his
       direction and then turn and run away. Because Officer Rand was in a car
       without overhead lights, he waited until Lewis was within twenty feet of his
       car before he exited and identified himself as a police officer. Officer Rand
       asked Lewis to stop so he could talk to him. Lewis immediately turned and ran
       between two houses. Officer Rand retrieved his police service dog from his
       police car and began tracking Lewis. They were able to track Lewis to an
       abandoned house, but the dog lost the scent.

              A few days later, Engelking identified Lewis from a photo array as the
       person who had hit him and taken the items from him and Demichieli. Officer
       Rand also identified Lewis from a photo array as the person who had run away
       from him on the day of the crime. The State charged Lewis with burglary as a
       Class B felony, burglary as a Class C felony, robbery as a Class B felony,
       criminal recklessness as a Class D felony, and theft as a Class D felony. The
       State also alleged that Lewis was a habitual offender.

Lewis v. State, 898 N.E.2d 429, 431-32 (Ind. Ct. App. 2008) (citations omitted), trans. denied

(2009) (“Lewis II”).

       Lewis’s first trial ended in a hung jury. At his second trial, the jury found Lewis not

guilty of theft but otherwise guilty as charged. He appealed. We reversed Lewis’s

convictions because we concluded that the trial court erred in allowing the State to reopen its

case during closing arguments to present additional evidence. Lewis v. State, No. 49A02-

0610-CR-921, slip op. at 2-4 (Ind. Ct. App. Apr. 24, 2007), trans. denied (“Lewis I”).


                                              3
        A third trial was held. Even though Lewis had been acquitted of the theft count in the

second trial, the State presented that count to the jury. The jury found Lewis guilty as

charged. Lewis pled guilty to being a habitual offender. At sentencing, the trial court

recognized that Lewis had been previously acquitted of the theft charge and dismissed it.

The trial court merged the class C felony burglary count with the class B felony burglary

count and the criminal recklessness count with the class B felony robbery count. The trial

court sentenced Lewis for his convictions of class B felony burglary and class B felony

robbery and for being a habitual offender to an aggregate term of forty-five years.

        Lewis appealed his convictions. He asserted that the trial court abused its discretion

in admitting identification evidence consisting of photo arrays and in refusing to give his

tendered jury instructions regarding eyewitness credibility and that the evidence was

insufficient to establish the bodily injury element necessary for the enhancement of his

robbery conviction to a class B felony. We affirmed. Lewis II, 898 N.E.2d at 435.

        Lewis filed a PCR petition, arguing that he received ineffective assistance of trial and

appellate counsel. Following a hearing, the postconviction court issued an order (“PCR

Order”) denying his petition.1 Lewis appeals. Additional facts will be provided as necessary.

                                       Discussion and Decision

                                          Standard of Review

        Lewis, pro se, appeals the denial of his PCR petition.


        1
          Lewis has not included a copy of the PCR Order in his appellant’s appendix as required by Indiana
Appellate Rule 50(A)(2)(b). Therefore, we will cite to the copy of the PCR Order at the back of his appellant’s
brief.


                                                      4
              Post-conviction proceedings provide defendants the opportunity to raise
       issues not known or available at the time of the original trial or direct appeal.
       In post-conviction proceedings, the defendant bears the burden of proof by a
       preponderance of the evidence. We review factual findings of a post-
       conviction court under a clearly erroneous standard but do not defer to any
       legal conclusions. We will not reweigh the evidence or judge the credibility of
       the witnesses and will examine only the probative evidence and reasonable
       inferences therefrom that support the decision of the post-conviction court.
       Additionally, the PCR court here entered findings of fact and conclusions [of
       law], as required by Indiana Post-Conviction Rule 1(6). We cannot affirm the
       judgment on any legal basis, but rather, must determine if the court’s findings
       are sufficient to support the judgment.

Woodson v. State, 961 N.E.2d 1035, 1040-41 (Ind. Ct. App. 2012) (citations and quotation

marks omitted), trans. denied.

              A petitioner who has been denied post-conviction relief … appeals from
       a negative judgment. … When a petitioner appeals from a negative judgment,
       he or she must convince the appeals court that the evidence as a whole leads
       unerringly and unmistakably to a decision opposite that reached by the trial
       court. Stated slightly differently, this Court 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.

Lambert v. State, 743 N.E.2d 719, 726 (Ind. 2001) (citations and quotation marks omitted).

Although Lewis is “proceeding pro se and lacks legal training, such litigants are held to the

same standard as trained counsel and are required to follow procedural rules.” Ross v. State,

877 N.E.2d 829, 833 (Ind. Ct. App. 2007), trans. denied (2008).

       Lewis contends that he is entitled to postconviction relief because he was denied

effective assistance of trial and appellate counsel. “The Sixth Amendment to the United

States Constitution guarantees the defendant the right to effective assistance of counsel.”

Latta v. State, 743 N.E.2d 1121, 1125 (Ind. 2001) (citing Strickland v. Washington, 466 U.S.


                                              5
668, 686 (1984)). “‘The purpose of the effective assistance guarantee of the Sixth

Amendment is simply to ensure that criminal defendants receive a fair trial.’” Wilkes v.

State, 984 N.E.2d 1236, 1245 (Ind. 2013) (quoting Strickland, 466 U.S. at 689).

       To prevail on a claim of ineffective assistance, a petitioner must demonstrate both that

his counsel’s performance was deficient and that he was prejudiced thereby. Ward v. State,

969 N.E.2d 46, 51 (Ind. 2012) (citing Strickland, 466 U.S. at 687). To establish deficient

performance, a petitioner must demonstrate that counsel’s representation “‘fell below an

objective standard of reasonableness, committing errors so serious that the defendant did not

have the counsel guaranteed by the Sixth Amendment.’” Reed v. State, 866 N.E.2d 767, 769

(Ind. 2007) (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). In assessing

whether counsel’s performance was deficient, we observe that even the finest, most

experienced criminal defense attorneys may not agree on the ideal strategy or most effective

way to represent a client, and therefore there is a strong presumption that counsel rendered

adequate assistance and made all significant decisions in the exercise of reasonable

professional judgment. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). To establish

prejudice, the 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.

Latta, 743 N.E.2d at 1125. “‘A reasonable probability is a probability sufficient to

undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694).




                                              6
                    Section 1 – Ineffective Assistance of Trial Counsel

                 Section 1.1 – Failure to Move to Dismiss Theft Charge

       Lewis argues that trial counsel was ineffective in failing to move to dismiss the theft

charge because he had been acquitted of that charge in his second trial. Lewis does not

challenge the postconviction court’s conclusion that even though trial counsel’s failure to

object to the theft charge constituted deficient performance, Lewis had not suffered prejudice

because the trial court did not enter judgment of conviction or impose sentence on the theft

charge. PCR Order at 13. Rather, Lewis argues that the theft charge was the underlying

offense of the burglary and robbery charges, and therefore he would not have been convicted

of burglary and robbery without the theft charge and the evidence pertaining thereto.

According to Lewis, the principle of collateral estoppel barred the relitigation of the theft

charge as part of the burglary and robbery charges. The postconviction court rejected

Lewis’s collateral estoppel argument and concluded that it was not necessary for the State to

use the facts related to the theft charge in the third trial. Id. at 16.

       The double jeopardy rule prohibits multiple punishments for the same offense.

Johnson v. State, 749 N.E.2d 1103, 1107-08 (Ind. 2001). “Collateral estoppel [also referred

to as issue preclusion] is not the same as double jeopardy, but rather it is embodied within the

protection against double jeopardy.” Coleman v. State, 946 N.E.2d 1160, 1165 (Ind. 2011).

       The traditional bar of jeopardy prohibits the prosecution of the crime itself,
       whereas collateral estoppel, in a more modest fashion, simply forbids the
       government from relitigating certain facts in order to establish the fact of the
       crime. In essence the doctrine of collateral estoppel precludes the Government
       from relitigating any issue that was necessarily decided by a jury’s acquittal in
       a prior trial. To decipher what a jury necessarily decided in a prior trial, courts

                                                7
       should examine the record of a prior proceeding, taking into account the
       pleadings, evidence, charge, and other relevant matter, and conclude whether a
       rational jury could have grounded its verdict upon an issue other than that
       which the defendant seeks to foreclose from consideration.

Id. (citations and quotation marks omitted). “[C]ollateral estoppel ‘will not often be available

to a criminal defendant,’ for ‘it is not often possible to determine with precision how the

judge or jury has decided any particular issue.’” Hoover v. State, 918 N.E.2d 724, 734 (Ind.

Ct. App. 2009) (quoting 5 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 17.4(a) (3d

ed. 2007)), trans. denied (2010).

       We begin by reviewing the statutory definitions of the offenses charged and the

charging information. Theft is the exertion of unauthorized control over property of another

person with intent to deprive the other person of its value or use. Ind. Code § 35-43-4-2.

Burglary is the breaking and entering of a building or structure with the intent to commit a

felony in it. Ind. Code § 35-43-2-1. Robbery is the taking of property from another person

by using or threatening the use of force or by putting any person in fear. Ind. Code § 35-42-

5-1. “Theft is an inherently included lesser offense of robbery. One cannot commit robbery

without also committing theft.” Johnson v. State, 749 N.E.2d 1103, 1109 (Ind. 2001). Thus,

it is true that theft may be the underlying felony of a burglary and is a lesser included offense

of robbery. However, the charging information, which Lewis completely ignores, shows that

the theft of which he was acquitted was not the theft underlying the burglary and robbery

charges.




                                               8
       The State charged Lewis with class B felony burglary as follows:

               Henry Lewis, on or about March 2, 2005, did break and enter the
       building or structure, and dwelling of Marvin Engelking, situated at 2921 ½
       East 10th Street, with intent to commit the felony of Theft therein; that is, with
       intent to knowingly exert unauthorized control over the property of Marvin
       Engelking and/or Victor DeMichieli, with intent to deprive Marvin Engelking
       and/or Victor DeMichieli of any part of its value or use.

Direct Appeal App. at 48 (emphases added). The class B felony robbery charge read as

follows:

             Henry Lewis, on or about March 2, 2005, did knowingly take from the
       person or presence of Marvin Engelking property, that is: tools, by putting
       Marvin Engelking in fear or by using or threatening the use of force on Marvin
       Engelking which resulted in bodily injury, that is: physical pain, to Marvin
       Engelking.

Id. at 49 (emphasis added). The class D felony theft charge read as follows:

              Henry Lewis, on or about March 2, 2005, did knowingly exert
       unauthorized control of the property, that is: tools and a tiller, of another
       person, namely: Victor DeMichieli, with intent to deprive Victor DeMichieli of
       any part of the value or use of said property.

Id. (emphasis added).

       Therefore, in the second trial, the jury acquitted Lewis of exerting unauthorized

control over DeMichieli’s property. The burglary and robbery charges, of which the jury

found Lewis guilty, were not based solely on DeMichieli’s property but also on Engelking’s

property. Therefore, in the third trial, the jury did not need to reconsider the issue of whether




                                               9
Lewis exerted unauthorized control over DeMichieli’s property. Accordingly, Lewis has

failed to carry his burden to show that the postconviction court’s decision is contrary to law.2

                   Section 1.2 – Failure to Object to Engelking’s Testimony

            Lewis asserts that trial counsel was ineffective for failing “to object to the changed

testimony of Engelking.” Appellant’s Br. at 11. “In order to prove ineffective assistance of

counsel due to the failure to object, a defendant must prove that an objection would have

been sustained if made and that he was prejudiced by the failure.” Wrinkles v. State, 749

N.E.2d 1179, 1192 (Ind. 2001), cert. denied (2002). Without citation to the record, Lewis

avers that at the first trial Engelking testified only that he saw a man standing outside the

back fence. Lewis states that at the second trial, the prosecutor asked Engelking if he saw

Lewis crawling under the fence, and that trial counsel “failed to object to [this] leading

question.” Id. at 7. Lewis then states that at the third trial, “Engelking again testified that he

saw Lewis crawling under the fence into the alley.” Id. at 8. Other than arguing that

Engelking’s testimony had changed, Lewis fails to provide a cogent argument or citation to

the Indiana Rules of Evidence as a basis for an objection to Engelking’s testimony at the

third trial. Accordingly, his argument is waived. See Ind. Appellate Rule 46(A)(8)(a)

(requiring that argument be supported by cogent reasoning with citations to authority);

Cooper v. State, 854 N.E.2d 831, 835 n.1 (Ind. 2006).



        2
          Lewis also appears to argue that the State needed the theft charge in order to offer the evidence that
Engelking saw Lewis leave the property by crawling under the back fence. He fails to cite any of the Indiana
Evidence Rules or any other authority for such a proposition, and therefore his argument is waived. See Ind.
Appellate Rule 46(A)(8)(a) (requiring that argument be supported by cogent reasoning with citations to
authority); Cooper v. State, 854 N.E.2d 831, 835 n.1 (Ind. 2006).

                                                      10
                       Section 1.3 – Failure to Consult with Lewis

       Lewis contends that trial counsel failed to consult with him during pretrial, and

       [a]s a result, counsel failed to properly object when the prosecutor injected into
       Engelking’s testimony the mere allegation that Engelking had seen Lewis
       crawling under the fence, and then failed to properly object with supporting
       case law when Engelking misidentified Lewis, after several attempts to
       identify the perpetrator, as the man who he had confronted in the alley.

Appellant’s Br. at 13. The PCR court found that trial counsel “met with Lewis numerous

times at the jail prior to trial and discussed the trial strategy with Lewis.” PCR Order at 5.

The PCR court further concluded that Lewis presented no evidence to support this claim. Id.

at 11. Our review of the record shows that at the PCR hearing, trial counsel testified that he

remembered meeting with Lewis “many times at the jail,” recalled “a lot of discussions about

[their] strategy,” and believed that he communicated to Lewis “what [their] strategy at trial

was going to be.” PCR Tr. at 50. Lewis did not testify at the PCR hearing, and thus his

counsel’s testimony is uncontradicted. We conclude that Lewis has failed to carry his burden

to show that the PCR court’s decision is contrary to law.

               Section 1.4 – Failure to Object to Identification Evidence

       Lewis argues that trial counsel’s “failure to seek suppression of evidence regarding

out-of-court identification procedures, or to contemporaneously object to evidence about the

out-of-court procedures or the in-court identification was ineffective assistance.” Appellant’s

Br. at 14. The postconviction court concluded that trial counsel objected to the admission of

three separate photo arrays on a variety of grounds, which were overruled by the trial court,

but that he was successful in preventing an in-court identification of Lewis by a law


                                              11
enforcement witness. However, Lewis contends that trial counsel should have objected to

the photo array shown to Engelking on the basis that it contained only six men and that he

had already been informed that the perpetrator had been arrested. We are unpersuaded that

an objection to the photo array on the basis now advanced would have been sustained. See

Gambill v. State, 436 N.E.2d 301, 303 (Ind. 1983) (“It is inevitable that a witness may know

that the police have a suspect when he is asked to view a ‘line up’ or limited photographic

array.”).

       Lewis also argues that “the in-court identification of [him] lacked sufficient

independent reliability” to be admissible. Appellant’s Br. at 15. Although Lewis does not

specify the in-court identification to which he is referring or provide any citations to the

record, we can infer from the PCR Order that Lewis is referring to Engelking’s in-court

identification of Lewis. The record shows that during the commission of the offenses,

Engelking was close enough to Lewis to tap him on the shoulder and carry on a conversation.

Trial Tr. at 68, 70, 73-75. Accordingly, we are unpersuaded that Engelking’s in-court

identification of Lewis lacked sufficient independent reliability.

                       Section 1.5 – Failure to Tender Instructions

       Lewis asserts that trial counsel failed to tender any instruction on eyewitness

identification, and thus provided ineffective assistance. Lewis is incorrect. See Lewis II, 898

N.E.2d at 433 (concluding that trial court did not abuse its discretion when it refused to give

either one of trial counsel’s tendered jury instruction regarding eyewitness credibility).

Therefore, this claim is meritless.


                                              12
         Section 1.6 – Failure to Challenge Elevation of Robbery to a Class B felony

       Lewis contends that trial counsel was ineffective for failing to object to the trial

court’s elevation of the robbery charge to a class B felony on the ground that the State failed

to produce any evidence that Engelking had suffered any physical impairment. The element

of bodily injury elevates class C felony robbery to a class B felony. Ind. Code § 35-42-5-1.

“Bodily injury” is defined as “any impairment of physical condition, including physical

pain.” Ind. Code § 35-41-1-4. As the State observes, this Court addressed the sufficiency of

the evidence for bodily injury on direct appeal, and we concluded that Engelking’s testimony

that he was “punched” in the face “pretty hard” and that “it didn’t feel good” was sufficient

evidence that he had suffered bodily injury. Id. at 435-36; see also Lewis v. State, 438

N.E.2d 289, 294 (Ind. 1982) (concluding that physical pain suffered by victim was sufficient

to establish bodily injury). Thus, Lewis’s argument fails.

                Section 2 – Ineffective Assistance of Appellate Counsel

       Lastly, Lewis asserts that his appellate counsel provided ineffective assistance by

failing to argue that there was insufficient evidence of physical impairment to establish the

bodily injury element of class B felony robbery. This argument is unavailing for the same

reason as the previous argument. Therefore, we affirm the denial of Lewis’s PCR petition.

       Affirmed.

BAKER, J., and BARNES, J., concur.




                                              13
