MEMORANDUM DECISION
                                                                       Dec 22 2015, 8:39 am
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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana
Indianapolis, Indiana                                    Indianapolis, Indiana

Cassandra J. Wright                                      Justin F. Roebel
Assistant Chief Deputy Public Defender                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Lawrence T. Davis,                                       December 22, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A04-1503-PC-119
        v.                                               Appeal from the Lake Superior
                                                         Court 1
State of Indiana,                                        The Honorable Kathleen A.
Appellee-Plaintiff                                       Sullivan, Magistrate; and The
                                                         Honorable Salvador Vasquez,
                                                         Judge.
                                                         Trial Court Cause No.
                                                         45G01-1304-PC-4



Altice, Judge.


                                         Case Summary


Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-119 | December 22, 2015       Page 1 of 9
[1]   Lawrence T. Davis appeals from the denial of his petition for post-conviction

      relief (PCR). On appeal, he asserts that the post-conviction court erred in

      rejecting his claim that he was subjected to an improper double enhancement

      because the prior conviction used to enhance his auto theft conviction from a

      class D to a class C felony and one of the convictions used to support his

      habitual offender adjudication were part of the same res gestae. Davis also

      argues that the post-conviction court erred in rejecting his claim that his

      appellate counsel was ineffective for failing to adequately present the double

      enhancement issue on direct appeal.


[2]   We affirm.


                                       Facts & Procedural History


[3]   In 2009, Davis was convicted of auto theft as a class C felony and two counts of

      resisting law enforcement, one as a class D felony and one as a class A

      misdemeanor. The auto theft charge was elevated from a class D to a class C

      felony based on a 2004 auto theft conviction under cause number 45G01-0312-

      FC-165 (FC-165). Davis was also adjudicated a habitual offender based on a

      2004 resisting law enforcement conviction also filed under FC-165 and a

      separate 2001 auto theft conviction. Davis received an aggregate sentence of

      nineteen years.


[4]   On direct appeal, appellate counsel raised three issues: (1) whether the trial

      court erred in not advising Davis of his right to a jury trial on the habitual

      offender and auto theft enhancement phases of his trial; (2) whether the trial

      Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-119 | December 22, 2015   Page 2 of 9
      court erred in allowing the State to use the auto theft conviction from FC-165

      both to enhance the conviction for auto theft and to support the habitual

      offender adjudication, and (3) whether the trial court erred in imposing the

      habitual offender enhancement as a separate sentence. This court affirmed as to

      the first and second issues, noting with respect to the latter that the State did not

      rely on the same conviction to support the enhancement and the habitual

      offender adjudication. Rather, the enhancement was supported by the auto

      theft conviction under FC-165, while the habitual offender adjudication was

      supported by the resisting law enforcement conviction under FC-165 and the

      2001 auto theft conviction. This court held that “[t]he trial court did not violate

      the prohibition of Beldon[v. State, 926 N.E.2d 480 (Ind. 2010),] as it did not use

      the same conviction to enhance under both the progressive enhancement and

      habitual offender statutes.” Davis v. State, 935 N.E.2d 1215, 1218 (Ind. Ct. App.

      2010). As to Davis’s third issue on direct appeal, this court remanded with

      instructions to the trial court to correct its error in imposing the habitual

      offender enhancement as a separate sentence. Davis filed a petition to transfer,

      which our Supreme Court denied on February 17, 2011.


[5]   Davis filed a pro se PCR petition on April 29, 2013. The petition was amended

      by counsel on November 22, 2013. Following an evidentiary hearing, the post-

      conviction court issued an order denying Davis’s petition on February 25, 2015.

      Davis now appeals.


                                          Discussion & Decision



      Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-119 | December 22, 2015   Page 3 of 9
[6]   In a post-conviction proceeding, the petitioner bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Bethea v. State, 983

      N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction

      relief, the petitioner stands in the position of one appealing from a negative

      judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In

      order to prevail, the petitioner must demonstrate that the evidence as a whole

      leads unerringly and unmistakably to a conclusion opposite the post-conviction

      court’s conclusion. Id. Although we do not defer to a post-conviction court’s

      legal conclusions, we will reverse its findings and judgment only upon a

      showing of clear error, i.e., “that which leaves us with a definite and firm

      conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729

      N.E.2d 102, 106 (Ind. 2000)).


                          1. Free-standing Double Enhancement Claim


[7]   On appeal, Davis raises a free-standing claim of trial error based on the use of

      the convictions under FC-165 to elevate his auto theft conviction to a class C

      felony and to support the habitual offender allegation, which he claims

      constituted an impermissible double enhancement. “[M]ost free-standing

      claims of error are not available in a postconviction proceeding because of the

      doctrines of waiver and res judicata.” Timberlake v. State, 753 N.E.2d 591, 597-

      98 (Ind. 2001). “The doctrine of res judicata prevents the repetitious litigation

      of that which is essentially the same dispute.” Ben-Yisrayl v. State, 738 N.E.2d

      253, 258 (Ind. 2000). “Res judicata mandates that when an appellate court

      decides a legal issue, both the trial court and the court on appeal are bound by

      Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-119 | December 22, 2015   Page 4 of 9
      that determination in any subsequent appeal involving the same case and

      relatively similar facts.” Saunders v. State, 794 N.E.2d 523, 527 (Ind. Ct. App.

      2003). A post-conviction petitioner cannot escape the effect of claim preclusion

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

      error. Ben-Yisrayl, 738 N.E.2d at 258.


[8]   The post-conviction court in this case concluded that Davis’s free-standing

      double enhancement claim is res judicata because it was raised on direct appeal

      and decided adversely to Davis. Davis argues that his double enhancement

      claim is not res judicata because his appellate counsel incorrectly argued that

      the same conviction was used both to enhance the auto theft conviction to a

      class C felony and to support the habitual offender allegation when, in fact, two

      different convictions, both charged under FC-165, were used. We note,

      however, that this court acknowledged appellate counsel’s factual error, and

      concluded that there was no double enhancement under then-prevailing law.

      Thus, counsel’s error did not prevent the court from considering and deciding

      the double enhancement issue.


[9]   Davis also argues that the double enhancement issue he now presents was not

      decided on direct appeal because the case on which his argument is based, Dye

      v. State, 972 N.E.2d 853 (Ind. 2012), clarified on reh’g, 984 N.E.2d 625 (Ind.

      2013), was not decided until after his direct appeal was final. Davis makes no

      argument, however, that Dye applies retroactively to this case, nor has he cited

      any authority for the proposition that subsequent developments in the law

      undercut the preclusive effect of our prior decisions.

      Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-119 | December 22, 2015   Page 5 of 9
[10]   In any event, even assuming that the double enhancement issue is not barred,

       Davis is not entitled to relief. The post-conviction court concluded that Davis’s

       argument failed on its merits, and we agree. Our Supreme Court has held that

       a defendant convicted under a progressive penalty statute may not have his

       sentence further enhanced under the general habitual offender statute by proof

       of the same felony used to elevate the underlying charge. See Beldon, 926

       N.E.2d at 483 (citing Mills v. State, 868 N.E.2d 446, 452 (Ind. 2007)). More

       recently, in Dye, the court announced that an improper double enhancement

       also occurs where a defendant is convicted of an elevated charge under a

       progressive penalty statute and adjudicated a habitual offender by proof of

       different felonies that are part of the same res gestae. 984 N.E.2d at 629-30

       (opinion on reh’g). As the court explained, “[a]lthough res gestae is a term

       regularly used in Indiana’s common law of evidence to denote facts that are

       part of the story of a particular crime, it also includes acts that are part of an

       ‘uninterrupted transaction.’” Id. at 629 (quoting Swanson v. State, 666 N.E.2d

       397, 398 (Ind. 1996)). Crimes that are continuous in their purpose and

       objective are deemed a single uninterrupted transaction. Id. The court went on

       to conclude that the convictions at issue in Dye, attempted battery with a deadly

       weapon and possession of a handgun within 1,000 feet of a school, were part of

       the same res gestae where the offenses both arose out of a single confrontation

       with a police officer. Id. at 629-30.


[11]   Relying on Dye, Davis argues that he was subjected to an impermissible double

       enhancement because the auto theft and resisting law enforcement convictions

       Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-119 | December 22, 2015   Page 6 of 9
       under FC-165 were part of the same res gestae. Davis, however, has failed to

       carry his burden on this issue. The only evidence presented at the PCR hearing

       concerning the facts of the offenses charged under FC-165 was the probable

       cause affidavit, which indicates that on the morning of December 1, 2003, a

       police officer attempted to make a traffic stop after observing a vehicle disregard

       a stop sign. The driver, who was later determined to be Davis, drove away at a

       high rate of speed. After turning into an alley, Davis leapt from the car and fled

       on foot. The officer gave chase, and subsequently apprehended Davis. An

       examination of the vehicle Davis had been driving revealed that the steering

       column had been “peeled.” PCR Exhibit 1. It was later determined that the

       vehicle belonged to Chester J. Podkul. On November 30, 2003, Podkul had

       loaned the vehicle to his son, Donald. When Donald left his home the next

       morning, he discovered that the vehicle had been stolen. As a result of these

       events, Davis was charged with, and eventually convicted of, auto theft and two

       counts of resisting law enforcement.


[12]   The fact that the auto theft and resisting law enforcement were charged under

       the same cause number, standing alone, does not establish that they were part

       of the same res gestae. Nor do we find the fact that Davis used the stolen vehicle

       to commit resisting law enforcement by fleeing from the police controlling. On

       the record before us, it is unclear how much time elapsed between the theft of

       the vehicle and Davis’s flight from police, but it could have been several hours.

       What is clear is that the theft of the vehicle was already complete when the

       officer attempted to stop Davis for a traffic infraction, and Davis fled. We


       Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-119 | December 22, 2015   Page 7 of 9
       reiterate that a post-conviction petitioner bears the burden of establishing his

       claims for relief by a preponderance of the evidence. Under the facts and

       circumstances presented here, we cannot conclude that the post-conviction

       court’s finding that Davis failed to do so was clearly erroneous.


                           2. Ineffective Assistance of Appellate Counsel


[13]   Davis also argues that his appellate counsel was ineffective for failing to

       adequately present the double enhancement issue on direct appeal. We review

       claims of ineffective assistance of appellate counsel using the same standard

       applicable to claims of ineffective assistance of trial counsel. Henley v. State, 881

       N.E.2d 639, 644 (Ind. 2008). Accordingly, to prevail on his claim, Davis was

       required to show both that counsel’s performance was deficient and that the

       deficiency resulted in prejudice. Id. 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.’” State v. McManus, 868 N.E.2d 778, 790 (Ind. 2007) (quoting

       McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). Counsel’s performance is

       presumed effective, and a post-conviction petitioner must offer strong and

       convincing evidence to overcome this presumption. Ben-Yisrayl, 729 N.E.2d at

       106. “Isolated mistakes, poor strategy, inexperience, and instances of bad

       judgment do not necessarily render representation ineffective.” Timberlake, 753

       N.E.2d at 603.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-119 | December 22, 2015   Page 8 of 9
[14]   Because Dye was not decided until well after Davis’s direct appeal was final,

       appellate counsel cannot be deemed ineffective for failing to advance the

       reasoning set forth in that case. See Bieghler v. State, 690 N.E.2d 188, 195 (Ind.

       1997) (explaining that a court should not find deficient performance for failing

       to adequately present issues “when the advancement of those issues would have

       required advocacy of a new adjudicatory standard or reasoning that would have

       been novel at the time of appellant’s appeal”). Additionally, appellate counsel

       cannot be said to have been ineffective for failing to advance an issue on appeal

       that would ultimately have been unsuccessful. See Bieghler v. State, 690 N.E.2d

       188, 194 (Ind. 1997) (explaining that a post-conviction petitioner arguing

       ineffective assistance of appellate counsel must establish a reasonable

       probability that, but for counsel’s unprofessional errors, the outcome of the

       appeal would have been different). Because Davis has not established that he

       was subject to an improper double enhancement, he has likewise failed to

       establish that his appellate counsel was ineffective for failing to adequately

       present the double enhancement issue on direct appeal. For all of these

       reasons, Davis has not established that the post-conviction court erred in

       denying his PCR petition.


[15]   Judgment affirmed.


[16]   Riley, J. and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-119 | December 22, 2015   Page 9 of 9
