MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                        Feb 17 2017, 8:16 am

court except for the purpose of establishing                          CLERK
                                                                  Indiana Supreme Court
the defense of res judicata, collateral                              Court of Appeals
                                                                       and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
Kevin R. Hewlate                                         Michael Gene Worden
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Corey L. Spurlock,                                       February 17, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A05-1609-PC-1976
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt Eisgruber,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         49G01-0203-PC-84150



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1609-PC-1976 | February 17, 2017   Page 1 of 20
                                STATEMENT OF THE CASE
[1]   Appellant-Petitioner, Corey L. Spurlock (Spurlock), appeals the post-conviction

      court’s denial of his petition for post-conviction relief.


[2]   We affirm in part, reverse in part, and remand.


                                                   ISSUES
[3]   Spurlock raises two issues on appeal, which we restate as follows:

      (1) Whether the post-conviction court erred in denying Spurlock’s petition for

      post-conviction relief because he received ineffective assistance of trial counsel;

      and

      (2) Whether the post-conviction court erred in denying Spurlock’s petition for

      post-conviction relief because he received ineffective assistance of appellate

      counsel.


                      FACTS AND PROCEDURAL HISTORY
[4]   Spurlock is appealing from the denial of a petition for post-conviction relief.

      The facts underlying Spurlock’s convictions were set forth in a memorandum

      decision issued on direct appeal as follows:

              On November 3, 1999, Indianapolis Police officers received a
              report of a dead body at 2427 North Oxford Street. There were
              no signs of forced entry at the address, but once there, officers
              found the dead bodies of Michael Haddix, Jr. [(Haddix)] and
              Crystal Davenport [(Davenport)]. Haddix had been shot three
              times including a fatal wound to the back of his head. Davenport
              had been fatally shot in the forehead.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-PC-1976 | February 17, 2017   Page 2 of 20
        Haddix’s father testified that it was likely that Haddix kept a gun
        in his house for protection. However, no weapon was retrieved
        from Haddix’s residence after his death. Further, Haddix’s father
        had given Haddix some money, and Haddix recently had won
        some money, but no cash was found in Haddix’s home after his
        death.

        On November 12, 1999, Aurelia Mason heard gunshots coming
        from the residence of her next-door neighbors. When police
        officers arrived, there was no sign of forced entry at 2960 North
        Park Avenue, but officers found the dead bodies of Benjamin
        Boone [(Boone)] and Doris Johnson [(Johnson)]. Boone had
        been fatally shot in the back of the head and neck. Johnson had
        been fatally shot three times in the back of the head and neck.

        Boone and Johnson both used crack cocaine in their house.
        There was also a gun inside the house. Ronald Freeman
        [(Freeman)], Boone’s friend, was at Boone’s house in the evening
        on November 11, 1999. Freeman smoked crack cocaine with
        Boone and Johnson, and then left shortly after two other men
        arrived at Boone’s house. Freeman testified that as he walked
        away from the house he heard gunshots and saw the flash from a
        gun being fired. Police officers recovered several spent shell
        casings from the residence in addition to bullet fragments.

        In March of 2002, during the course of another investigation,
        homicide detectives received information about a suspect in the
        four murders named “Lolo” and the location where “Lolo” lived.
        Detectives contacted [Spurlock’s] grandmother who told them
        that [Spurlock’s] nickname was “Lolo.” Detective Roy West
        [(Detective West)] asked [Spurlock’s] grandmother to have
        [Spurlock] contact him. That same day [Detective] West
        received a phone call from [Spurlock]. [Spurlock] agreed to meet
        with [Detective] West at the police headquarters the next day
        after [Spurlock] finished work.

        On March 7, 2002, [Spurlock] arrived at police headquarters to

Court of Appeals of Indiana | Memorandum Decision 49A05-1609-PC-1976 | February 17, 2017   Page 3 of 20
               discuss the . . . homicides [of Haddix, Davenport, Boone, and
               Johnson]. [Spurlock] was shown some photographs to determine
               if he could identify any individuals included in the photo arrays.
               [Spurlock] confirmed that one of his nicknames was “Lolo.”
               Detective[] West and [Detective Thomas] Tudor [(Detective
               Tudor)] advised [Spurlock] of his rights and questioned him
               further about the homicides. [Spurlock] made audio-taped
               statements to the detectives regarding the two incidents in
               November of 1999. [Spurlock] identified Terrence Swann
               [(Swann)] and Anthony “Banks” Johnson [(Banks)] as the
               primary perpetrators of the homicides that were committed as
               part of the robberies of those victims.[ 1] [Spurlock] returned
               home after giving those statements to the detectives.

               The following day, [Spurlock] telephoned Detective West and
               informed him that he was no longer going to cooperate with the
               police, and that what he had told them the previous day was not
               true.


      Spurlock v. State, No. 49A05-0305-CR-247, slip op. at 2-4 (Ind. Ct. App. May 6,

      2014).


[5]   On March 24, 2002, the State filed an Information, charging Spurlock with

      Count I, murder, a felony, Ind. Code § 35-42-1-1; Count II, murder, a felony,

      I.C. § 35-42-1-1; Count III, conspiracy to commit robbery, a Class A felony,

      I.C. §§ 35-41-5-2, -42-5-1; Count IV, robbery, a Class A felony, I.C. § 35-42-5-1;

      Count V, murder, a felony, I.C. § 35-42-1-1; Count VI, murder, a felony, I.C. §




      1
        In addition, Spurlock admitted to Detective West and Detective Tudor that he accompanied Swann and
      Banks to both residences with the intent that they were going to rob Haddix/Davenport and Boone/Johnson.
      Although Spurlock stated that on both occasions he was armed with a .38 caliber firearm, he explained to the
      officers that, in both instances, he immediately exited the house when Swann began shooting the victims.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-PC-1976 | February 17, 2017       Page 4 of 20
      35-42-1-1; Count VII, conspiracy to commit robbery, a Class A felony, I.C. §§

      35-41-5-2, -42-5-1; and Count VIII, robbery, a Class A felony, I.C. § 35-42-5-1.

      On July 12, 2002, Spurlock filed a motion to suppress the statements he made

      during his police interview regarding the events of November 12, 1999, and on

      August 1, 2002, Spurlock filed a motion to suppress the statements he made to

      police regarding the events of November 3, 1999. The trial court denied

      Spurlock’s suppression motions on October 31, 2002.


[6]   On March 24-27, 2003, the trial court conducted a jury trial. At the close of the

      State’s case-in-chief, Spurlock moved for judgment on the evidence pursuant to

      Indiana Trial Rule 50, which the trial court denied. Following the presentation

      of all evidence, the jury returned a guilty verdict on all eight Counts, and the

      trial court entered judgment of conviction in accordance with the verdict. On

      April 25, 2003, the trial court held a sentencing hearing. The trial court vacated

      Spurlock’s convictions on Count IV, the Class A felony robbery of Davenport

      and Haddix, and Count VIII, the Class A felony robbery of Boone and

      Johnson, based on double jeopardy grounds. On Counts I and II—for the

      felony murders of Davenport and Haddix—the trial court sentenced Spurlock to

      forty-five years on each charge. As to Count III, Class A felony conspiracy to

      commit robbery of Davenport and Haddix, the trial court sentenced Spurlock to

      serve twenty years. For Counts V and VI, the felony murders of Boone and

      Johnson, the trial court imposed sentences of forty-five years on each. Finally,

      for Count VII, Class A felony conspiracy to commit robbery of Boone and

      Johnson, the trial court ordered Spurlock to serve thirty years. Counts I, II, III,


      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-PC-1976 | February 17, 2017   Page 5 of 20
      V, and VI were ordered to run concurrently, whereas Count VII was ordered to

      be served consecutively to Count I, resulting in an aggregate sentence of

      seventy-five years, fully executed in the Indiana Department of Correction.


[7]   On May 19, 2003, Spurlock filed a Notice of Appeal. On May 6, 2004, this

      court issued a memorandum decision, affirming Spurlock’s convictions. See

      Spurlock, No. 49A05-0305-CR-247, slip op. at 15. We held that, contrary to

      Spurlock’s assertions, the State satisfied the corpus delicti requirement to allow

      for the admission of Spurlock’s confessions, and we further concluded that

      Spurlock’s statements during his police interview were made voluntarily. See id.

      slip op. at 9, 15.


[8]   On March 21, 2005, Spurlock filed a pro se verified petition for post-conviction

      relief, claiming that he received ineffective assistance of both trial and appellate

      counsel. On September 8, 2008, the trial court dismissed Spurlock’s petition

      due to his failure to prosecute. Six years later, on October 31, 2014, Spurlock

      again filed a verified petition for post-conviction relief, which was amended on

      September 2, 2015. In his amended petition, Spurlock once more claimed that

      he was denied the effective assistance of both trial and appellate counsel in

      violation of the United States and Indiana Constitutions. Specifically, Spurlock

      alleged that his “trial counsel was ineffective for failing to object to statements

      made by the prosecutor during closing arguments” and that his “appellate

      counsel was ineffective for failing to raise a claim that [Spurlock’s] convictions

      for conspiracy to commit robbery, as Class A felonies, are in violation of double

      jeopardy.” (Appellant’s App. Vol. III, pp. 165-66). On November 17, 2015, the

      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-PC-1976 | February 17, 2017   Page 6 of 20
       post-conviction court conducted a hearing on Spurlock’s petition. On August

       8, 2016, the post-conviction court issued its Findings of Fact and Conclusions

       of Law Denying Post-Conviction Relief.


[9]    Spurlock now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                             I. Standard of Review

[10]   A post-conviction proceeding provides a petitioner with the “opportunity to

       raise issues that were unknown or unavailable at the time of the original trial or

       the direct appeal.” Maymon v. State, 870 N.E.2d 523, 526 (Ind. Ct. App. 2007)

       (citing Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S.

       1164 (2002)). A post-conviction proceeding, however, is not “a super appeal,”

       and it “provide[s] only a narrow remedy for subsequent collateral challenges to

       convictions.” Id. (citing Ben-Yisrayl, 738 N.E.2d at 258). Because post-

       conviction proceedings are civil in nature, the petitioner bears the burden of

       establishing his grounds for relief by a preponderance of the evidence. Stevens v.

       State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied, 540 U.S. 830 (2003); see Ind.

       Post-Conviction Rule 1(5).


[11]   As stated by our supreme court, “[a] petitioner who has been denied post-

       conviction relief faces a rigorous standard of review.” Dewitt v. State, 755

       N.E.2d 167, 169 (Ind. 2001). Our court will affirm the post-conviction court’s

       denial of relief unless “the evidence as a whole leads unerringly and

       unmistakably to a decision opposite that reached by the post-conviction court.”

       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-PC-1976 | February 17, 2017   Page 7 of 20
       Id. at 170. In other words, “[t]his [c]ourt 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. (first alteration in original). On review, we consider

       only the evidence and reasonable inferences supporting the post-conviction

       court’s decision. Hall v. State, 849 N.E.2d 466, 468 (Ind. 2006). Moreover, the

       post-conviction court “is the sole judge of the evidence and the credibility of the

       witnesses.” Id. at 468-69. We will review the post-conviction court’s factual

       findings for clear error, but we owe no deference to its conclusions of law.

       Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013).


                                  II. Ineffective Assistance of Trial Counsel

[12]   Spurlock claims that his trial counsel rendered ineffective assistance. The Sixth

       Amendment to the United States Constitution guarantees a criminal 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. 668, 686 (1984), reh’g

       denied). When considering whether a petitioner has received ineffective

       assistance of counsel, “a ‘strong presumption arises that counsel rendered

       adequate assistance and made all significant decisions in the exercise of

       reasonable and professional judgment.’” McCullough v. State, 973 N.E.2d 62, 74

       (Ind. Ct. App. 2012) (quoting Morgan v. State, 755 N.E.2d 1070, 1073 (Ind.

       2001)), trans. denied. Because counsel’s performance is presumed effective, “a

       defendant must offer strong and convincing evidence to overcome this

       presumption.” Id. (quoting Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002)).

       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-PC-1976 | February 17, 2017   Page 8 of 20
[13]   It is well established that “[i]solated poor strategy, inexperience, or bad tactics

       do not necessarily constitute ineffective assistance.” Id. (citing Clark v. State,

       668 N.E.2d 1206, 1211 (Ind. 1996)). In order to succeed on a claim of

       ineffective assistance of counsel, the “petitioner must demonstrate both that his

       counsel’s performance was deficient and that the petitioner was prejudiced by

       the deficient performance.” Id. (citing Strickland, 466 U.S. at 687). Deficient

       performance is that which “falls below an objective standard of reasonableness

       based on prevailing professional norms.” Id. (citing French v. State, 778 N.E.2d

       816, 824 (Ind. 2002)). Prejudice is established if “there is a reasonable

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

       proceeding would have been different.” Id. at 74-75 (citing French, 778 N.E.2d

       at 824). “‘A reasonable probability is a probability sufficient to undermine

       confidence in the outcome.’” Id. at 75 (quoting Perez v. State, 748 N.E.2d 853,

       854 (Ind. 2001)). Failure to establish either deficient performance or prejudice

       will cause the petitioner’s claim to fail. Henley v. State, 881 N.E.2d 639, 645

       (Ind. 2008). “If we can easily dismiss an ineffective assistance claim based

       upon the prejudice prong, we may do so without addressing whether counsel’s

       performance was deficient.” Id.


[14]   In this case, Spurlock contends that his trial counsel’s performance was

       deficient based upon a failure to object to a statement made during the State’s

       closing argument. During the trial, evidence was presented that Banks, one of

       Spurlock’s co-conspirators, was killed in the month following the murders of

       Davenport, Haddix, Boone, and Johnson. During the course of his


       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-PC-1976 | February 17, 2017   Page 9 of 20
       investigation into Banks’ death, Officer Andrew Stark (Officer Stark) of the

       Indianapolis Metropolitan Police Department received a call from Swann—i.e.,

       the third co-conspirator—concerning Banks’ murder. Based on information he

       received from Swann, Officer Stark advised Detective West and Detective

       Tudor that they should locate and talk to “[a] subject by the name of Lolo”

       regarding the four murders from November of 1999. (Tr. Vol. II, p. 270). At

       the time, there was no indication as to the real identify of “Lolo.” (Tr. Vol. II,

       p. 270). As Detective West’s investigation progressed, on February 27, 2002,

       he had the opportunity to escort Swann around Indianapolis in his police

       vehicle for the purpose of locating the firearm that had been used in the

       Boone/Johnson murders. When they drove by the house located at 3510 North

       Adams Street, Swann pointed at the residence and informed Detective West

       that it was Lolo’s house. On March 6, 2002, Detective West returned to the

       house at 3510 North Adams. Hanna Poindexter answered the door and

       indicated that her grandson, Lolo, lived there with her. From there, it was

       determined that “Lolo” was an alias used by Spurlock. (Tr. Vol. II, p. 311).


[15]   At trial, when Detective West was testifying as to his discovery of Spurlock

       based on Swann pointing out Lolo’s house, defense counsel objected on hearsay

       grounds as to “how that address was made aware to [Detective West].” (Tr.

       Vol. II, p. 308). The State clarified that it was not offering the testimony for the

       truth of the matter asserted, but rather to show why Detective West made the

       decision to return to that house in furtherance of his investigation. The trial




       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-PC-1976 | February 17, 2017   Page 10 of 20
       court ruled that Detective West could testify that Swann pointed to the house

       but could not inform the jury that Swann had identified the house as Lolo’s.


[16]   During the defense’s closing argument, Spurlock’s attorney heavily emphasized

       the fact that the State’s case relied entirely on Spurlock’s confession, which

       Spurlock maintained was coerced. In rebuttal, the State argued:

               I want to start out with [Spurlock’s] assertion that these two
               confessions are the only evidence that we have of his guilt—well,
               what did he leave out when he said that, how did we get to this
               point, how did we pluck him out of the air and get him to confess
               to these crimes? What he failed to mention to you, that this is
               not the only evidence that we have—how did we get to him?
               Remember, . . . Swann pointing to Lolo’s grandmother’s house—
               that’s some pretty strong evidence, and sure enough, Detective
               West goes back to that house and there’s a grandmother there,
               [Spurlock’s] grandmother, and there’s a Lolo there sitting right
               here in front of you today, that’s some pretty strong evidence,
               ladies and gentlemen, something you never heard them refer to
               for obvious reasons.


       (Tr. Vol. III, p. 709).


[17]   “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, 535 U.S. 1019 (2002). According to Spurlock, his trial

       counsel should have objected to the State’s “reference to facts not in evidence”

       because “there was no evidence that Swann identified the house as Lolo’s

       grandmother’s.” (Appellant’s Br. p. 27; Appellant’s Reply Br. p. 7). Moreover,

       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-PC-1976 | February 17, 2017   Page 11 of 20
       Spurlock insists that the State was prohibited from relying on the fact that

       Swann pointed to a house as substantive evidence because it was admitted only

       for the purpose of showing Detective West’s course of investigation. Spurlock

       insists that his trial counsel’s failure to object during the State’s closing

       argument was prejudicial because there is evidence that the jury “struggl[ed]

       with what weight to give Spurlock’s confession.” (Appellant’s Br. p. 30). Thus,

       Spurlock argues that

               [i]t is reasonable that the jury could have used the State’s
               argument that [Swann] identified Spurlock’s grandmother’s
               house, a fact not in evidence, to bolster Spurlock’s confession. If
               the jury believed that a co-defendant, who they knew had already
               been convicted of crimes in one of the incidents, identified
               Spurlock as being involved, this would bolster the confession.


       (Appellant’s Br. p. 31).


[18]   In its Findings of Fact and Conclusions of Law Denying Post-Conviction

       Relief, the post-conviction court concluded that even if Spurlock’s trial counsel

       had objected, such objection would not have been sustained because the State’s

       comment was nothing more than its own analysis of the evidence. We agree.

       A review of the record reveals that the jury heard evidence that Officer Starks

       informed Detective West and Detective Tudor that they should locate and

       interview an individual with the street name of Lolo with respect to their

       homicide investigations. Thereafter, Detective West was driving around with

       Swann in search of the firearm used in the commission of the instant offenses.

       During that time, Swann pointed at a house located at 3510 North Adams

       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-PC-1976 | February 17, 2017   Page 12 of 20
       Street, which prompted Detective West to further investigate. When Detective

       West returned to that address, he discovered that an individual named Lolo

       lived there. Detective West left a message with Lolo’s grandmother, and it was

       Spurlock who responded. Spurlock subsequently informed Detective West that

       he is also known as Lolo.


[19]   Our supreme court has recognized that there is a risk with the course-of-

       investigation exception to hearsay that “the jury will rely upon the out-of-court

       assertion as substantive evidence of guilt—rather than for the limited purpose of

       explaining police investigation.” Blount v. State, 22 N.E.3d 559, 566 (Ind.

       2014). 2 Here, however, the risk of prejudice is minimal because Detective West

       was already aware of possible involvement by an individual named Lolo; as

       such, Spurlock was not implicated based upon Swann’s act of pointing alone.

       In addition, Swann did not directly accuse Spurlock of committing the offenses.

       See id. Rather, it was Spurlock himself who confirmed his own identity as Lolo

       and confessed to participating in the robbery and murders of Davenport,

       Haddix, Boone, and Johnson.


[20]   Accordingly, we find that it was entirely reasonable for the jury to reach the

       same inference that the State argued during its closing argument without

       inappropriately considering the evidence for any purpose other than for which it

       was admitted. Moreover, not only did the State—immediately prior to making



       2
         Hearsay can include a non-verbal assertion, such as where a witness identifies a perpetrator by pointing.
       Ind. Evidence Rule 801(a)(2); Sandefur v. State, 945 N.E.2d 785, 788 (Ind. Ct. App. 2011).

       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-PC-1976 | February 17, 2017         Page 13 of 20
       the remark now at issue—emphasize that “statements by attorneys are not

       evidence,” but the trial court specifically instructed the jury that any statements

       made by the attorneys during closing arguments are not evidence. (Tr. Vol. III,

       p. 708). Our court presumes that a jury follows the instructions that it is given.

       See R.T. v. State, 848 N.E.2d 326, 332 (Ind. Ct. App. 2006), trans. denied.

       Therefore, not only did Spurlock fail to prove that his objection, if made, would

       have been sustained, but he also failed to carry his burden of establishing that

       the results of the proceeding would have been any different.


                               III. Ineffective Assistance of Appellate Counsel

[21]   Next, Spurlock claims that his appellate counsel rendered ineffective assistance.

       When considering whether a petitioner received ineffective assistance of

       appellate counsel, we rely on the same standard of review as used in an analysis

       of ineffective assistance of trial counsel. Reed v. State, 856 N.E.2d 1189, 1195

       (Ind. 2006). Thus, Spurlock must demonstrate that his appellate counsel was

       deficient and that such deficiency resulted in prejudice. Id.


[22]   In general, claims of ineffective assistance of appellate counsel “fall into three

       basic categories: (1) denial of access to an appeal; (2) waiver of issues; and (3)

       failure to present issues well.” Id. Here, Spurlock argues the second type—that

       his appellate counsel was ineffective by failing to raise an issue on appeal,

       which resulted in waiver of the matter for collateral review. We reiterate that

       Spurlock “must overcome the strongest presumption of adequate assistance,

       and judicial scrutiny is highly deferential.” Id. (citing Ben-Yisrayl, 738 N.E.2d at

       261). In considering whether appellate counsel’s performance was deficient for

       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-PC-1976 | February 17, 2017   Page 14 of 20
       failing to raise an issue, “we apply the following test: (1) whether the unraised

       issues are significant and obvious from the face of the record and (2) whether

       the unraised issues are ‘clearly stronger’ than the raised issues.” Id. (quoting

       Timberlake v. State, 753 N.E.2d 591, 605-06 (Ind. 2001)). “If the analysis under

       this test demonstrates deficient performance, then we examine whether[] ‘the

       issues which . . . appellate counsel failed to raise[] would have been clearly

       more likely to result in reversal or an order for a new trial.’” Id. (second

       alteration in original) (quoting Bieghler v. State, 690 N.E.2d 188, 194 (Ind.

       1997)). We must further

               consider the totality of an attorney’s performance to determine
               whether the client received constitutionally adequate assistance .
               . . [and] should be particularly sensitive to the need for separating
               the wheat from the chaff in appellate advocacy, and should not
               find deficient performance when counsel’s choice of some issues
               over others was reasonable in light of the facts of the case and the
               precedent available to counsel when that choice was made.


       Id. at 1195-96 (alterations in original) (quoting Bieghler, 690 N.E.2d at 194).


[23]   Spurlock argues that his appellate counsel was deficient by failing to argue that

       his convictions for conspiracy to commit robbery resulting in serious bodily

       injury, Class A felonies, violate double jeopardy “because it was clear that the

       same injuries were used to enhance the conspiracy convictions to Class A

       felonies and establish the felony murder convictions.” (Appellant’s Br. p. 18).

       In arguing that the issue was obvious from the face of the record, Spurlock

       directs our attention to Henderson v. State, 769 N.E.2d 172 (Ind. 2002), which


       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-PC-1976 | February 17, 2017   Page 15 of 20
       was decided prior to Spurlock’s direct appeal. In Henderson, similar to the

       instant case, the defendant challenged his convictions for felony-murder and

       Class A felony conspiracy to commit robbery on double jeopardy grounds. Id.

       at 177. Our supreme court found no violation of the double jeopardy clause

       because it was

               not reasonably possible that the jury used the same evidentiary
               facts to establish all the elements of both [C]lass A felony
               conspiracy to commit robbery and felony murder (the defendant
               killed [the victim] while committing the robbery of [another
               individual]). In other words, the offenses of felony-murder and
               [C]lass A felony conspiracy were each established by the proof of
               a fact not used to establish the other offense.


       Id. at 178.


[24]   Nonetheless, our supreme court elected to review the defendant’s claims under

       certain “rules of common law and statutory construction.” Id. These “rules of

       statutory construction and common law . . . are often described as double

       jeopardy, but are not governed by the constitutional test set forth in Richardson

       [v. State, 717 N.E.2d 32 (Ind. 1999)].” Pierce v. State, 761 N.E.2d 826, 830 (Ind.

       2002). Included among these rules is “the doctrine that where one conviction is

       based on the same bodily injury that forms the basis for elevating another

       conviction to a higher penalty classification, the two cannot stand.” Henderson,

       769 N.E.2d at 178. Because the victim’s death “was the basis for [the

       defendant’s] convictions of both murder and Class A felony conspiracy,” the

       Henderson court held that the conspiracy conviction should be reduced to a


       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-PC-1976 | February 17, 2017   Page 16 of 20
       Class B felony conspiracy to commit robbery, which requires only commission

       while armed with a deadly weapon rather than a result of serious bodily injury.

       Id. at 178-79; see I.C. § 35-42-5-1. Spurlock now claims that had this issue been

       raised on direct appeal, he would have succeeded in having his two convictions

       for Class A felony conspiracy to commit robbery (Counts III and VII) reduced

       to Class B felonies.


[25]   The State, on the other hand, argues that the double jeopardy claim is not

       obvious on the face of the record because our court, on direct appeal, did not

       raise the issue sua sponte. See Whitham v. State, 49 N.E.3d 162, 168 (Ind. Ct.

       App. 2015) (noting that “questions of double jeopardy implicate fundamental

       rights and, as such, may be raised for the first time on appeal, or even by this

       court sua sponte”), trans. denied. Nevertheless, the State maintains that even if

       appellate counsel was deficient in failing to raise the common law/statutory

       construction issue, Spurlock has failed to establish prejudice as to Count III

       (conspiracy to commit robbery of Davenport and Haddix) because the trial

       court ordered the sentence to run concurrently with the sentence imposed for

       Count I (murder of Davenport). As to Count VII (conspiracy to commit

       robbery of Boone and Johnson), which sentence was ordered to be served

       consecutively to the rest, the State concedes that “there would be prejudice to

       [Spurlock].” (State’s Br. p. 22). 3




       3
        Yet, the State attempts to argue that Count VII was not improperly enhanced to a Class A felony because
       Count VII relies on conspiracy to commit robbery that resulted in bodily injury to Boone and Johnson,

       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-PC-1976 | February 17, 2017     Page 17 of 20
[26]   We agree with Spurlock that, at the time of his direct appeal, it was sufficiently

       established that if “one conviction is based on the same bodily injury that forms

       the basis for elevating another conviction to a higher penalty classification, the

       two cannot stand.” Henderson, 769 N.E.2d at 178; see also Pierce, 761 N.E.2d at

       830 (reducing a robbery conviction from a Class B felony to a Class C felony

       because it was based on the same bodily injury that formed the basis for a Class

       A felony burglary conviction). 4 Here, the State charged in Count III, as a Class

       A felony, that Spurlock committed conspiracy to commit robbery which

       resulted in serious bodily injury to Davenport and Haddix. The State relied on

       the same bodily injuries to charge Spurlock with the murders of Davenport and

       Haddix (Counts I and II). Similarly, the same bodily injuries were relied upon

       in Count VII to charge Spurlock with Class A felony conspiracy to commit

       robbery of Boone and Johnson as in Counts V and VI for the murders of Boone

       and Johnson. Accordingly, because the issue is obvious from the face of the

       record and stronger than the issues actually raised, we find that Spurlock has




       whereas Count I charged the murder of Davenport. Thus, the State contends that these charges “involve
       entirely different victims” and “do not fall within the ‘double jeopardy’ rule argued by [Spurlock].” (State’s
       Br. p. 22). It appears that the State’s argument is based on the fact that the trial court ordered the sentence on
       Count VII to run consecutively to the sentence on Count I. It is clear, however, that Counts V and VI, the
       murders of Boone and Johnson, rely on the same bodily injury as used to enhance the conspiracy charge in
       Count VII to a Class A felony. By ordering Count VII to run consecutively to Count I, the trial court
       necessarily ordered Count VII to also run consecutively to Counts V and VI (as Counts I, II, III, V, and VI
       were all ordered to run concurrently). Therefore, we find no merit in the State’s argument.
       4
         The post-conviction court conversely concluded that, at the time of Spurlock’s direct appeal, the law in this
       area was unsettled. In particular, the post-conviction court cited Spivey v. State, 761 N.E.2d 831 (Ind. 2002).
       In Spivey, the supreme court determined that the defendant’s “convictions for felony-murder and conspiracy
       to commit burglary [did] not qualify for relief” under the rules of statutory construction and common law
       already discussed. Id. at 834. However, Spivey, unlike Henderson and Pierce, did not involve an enhancement
       on the conspiracy charge based on the same bodily injury that formed the basis for the felony-murder charge.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-PC-1976 | February 17, 2017            Page 18 of 20
       demonstrated that his appellate counsel was deficient in failing to raise this

       issue on appeal. Furthermore, had this issue been raised, Spurlock likely would

       have prevailed, resulting in a reduction of his conspiracy charges to Class B

       felonies (as Spurlock was found to be armed with a deadly weapon in his

       conspiracies to commit robbery). Notwithstanding whether the trial court

       imposed a concurrent sentence as to Count III, we agree with Spurlock that a

       higher-level felony is prejudicial because he “has an interest in his criminal

       history accurately reflecting his convictions.” (Appellant’s Reply Br. p. 6). In

       addition, because Spurlock’s sentence on Count VII was ordered to run

       consecutively, entry as a Class B felony will result in a lower aggregate

       sentence. Therefore, we conclude that Spurlock has demonstrated that he

       received ineffective assistance of appellate counsel.


                                               CONCLUSION
[27]   Based on the foregoing, we conclude that the post-conviction court erred in

       denying Spurlock’s petition for post-conviction relief because, although

       Spurlock received effective assistance of trial counsel, he received ineffective

       assistance of appellate counsel. Accordingly, we remand for the entry of

       judgment of conviction on Counts III and VII to be reduced to Class B felonies

       and for the trial court to re-sentence accordingly. 5




       5
         Because the trial court initially imposed the then-statutory minimum sentence of twenty years on Count III
       and the then-advisory term of thirty years on Count VII for Class A felonies, Spurlock asks that we now order
       the minimum and advisory sentences, respectively, for Class B felonies. As sentencing is a matter of trial
       court discretion, we decline Spurlock’s request. See Buchanan v. State, 767 N.E.2d 967, 970 (Ind. 2002).

       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-PC-1976 | February 17, 2017       Page 19 of 20
[28]   Affirmed in part, reversed in part, and remanded.


[29]   Crone, J. and Altice, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-PC-1976 | February 17, 2017   Page 20 of 20
