MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any
                                                                            Sep 23 2019, 9:58 am
court except for the purpose of establishing
the defense of res judicata, collateral                                          CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
estoppel, or the law of the case.                                                 and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Bryan Scott Lucas                                        Curtis T. Hill, Jr.
Bunker Hill, Indiana                                     Attorney General of Indiana
                                                         Indianapolis, Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Bryan Scott Lucas,                                       September 23, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-2267
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Samuel Cappas,
Appellee-Respondent.                                     Judge
                                                         The Honorable Natalie Bokota,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         45G04-1605-PC-2


Court of Appeals of Indiana | Memorandum Decision 18A-PC-2267| September 23, 2019                    Page 1 of 8
      Bradford, Judge.



                                          Case Summary
[1]   In October of 2008, pursuant to a plea agreement, Bryan Scott Lucas agreed to

      plead guilty to seven counts of Class B felony robbery and received an

      aggregate, fixed sentence of forty years. In November of 2008, the trial court

      accepted the plea agreement and sentenced Lucas accordingly. In February of

      2017, Lucas filed his amended petition for post-conviction relief (“PCR”),

      contending that (1) his sentence violated the general rule against double

      enhancement, (2) his consecutive sentences were illegal, and (3) he received

      ineffective assistance of counsel. The post-conviction court denied his petition

      in full. Lucas contends that the post-conviction court erred by denying him

      PCR and was biased against him. Because we disagree, we affirm.



                            Facts and Procedural History
[2]   Between November 21, 2007, and December 10, 2007, Lucas and his

      accomplice committed eight robberies at different businesses in Lake County.

      Each time, Lucas brandished a knife and took money from the businesses’ cash

      register while a victim was present. The State charged Lucas with seven counts

      of Class B felony robbery (Counts I–V, VII, VIII) and one count of Class D

      felony theft (Count VI). On October 24, 2008, pursuant to a plea agreement,

      Lucas pled guilty to the seven robbery counts; in exchange, the State agreed to

      dismiss the theft count. The plea agreement also provided for a fixed, aggregate

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2267| September 23, 2019   Page 2 of 8
      sentence of forty years. On November 19, 2008, the trial court accepted the plea

      agreement and sentenced Lucas according to its terms. By agreeing to plead

      guilty, Lucas waived his right to file a direct appeal. On February 21, 2017,

      Lucas filed an amended PCR petition, alleging that his sentence was illegal and

      that he received ineffective assistance of trial counsel. The post-conviction court

      held a hearing on Lucas’s PCR petition and denied it on June 13, 2018.



                                 Discussion and Decision
[3]   The standard of review for appeals from the denial of PCR is well-settled.

      Petitioners who have exhausted the direct-appeal process may challenge the

      correctness of their convictions and sentences by filing a post-conviction

      petition. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Petitioner bears the

      burden of establishing grounds for PCR by a preponderance of the evidence. Id.

      By appealing from a negative judgment, Petitioner faces a rigorous standard of

      review. Wesley v. State, 788 N.E.2d 1247, 1250 (Ind. 2003). Denial of PCR will

      be affirmed unless, “the evidence as a whole leads unerringly and unmistakably

      to a decision opposite that reached by the post-conviction court.” Id. We do not

      defer to the post-conviction court’s legal conclusion but do accept its factual

      findings unless they are clearly erroneous. Stevens, 770 N.E.2d at 746. The post-

      conviction process does not provide petitioner with a “super-appeal” but,

      rather, a “narrow remedy for subsequent collateral challenges to convictions,

      challenges which must be based on grounds enumerated in the post-conviction

      rules.” Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999).


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2267| September 23, 2019   Page 3 of 8
                                    I. Double Enhancement
[4]   Lucas seemingly contends that his sentence resulted in an impermissible double

      enhancement. “The general rule is that, absent explicit legislative direction, a

      sentence imposed following a conviction under a progressive penalty statute

      may not be increased further under either the general habitual offender statute

      or a specialized habitual offender statute.” Dye v. State, 972 N.E.2d 853, 857

      (Ind. 2012) (internal quotations and emphasis omitted), clarified on reh’g in Dye v.

      State, 984 N.E.2d 625 (Ind. 2013). “Likewise, absent explicit legislative

      direction, a conviction under a specialized habitual-offender statute cannot be

      further enhanced under the general habitual-offender statute.” Id. In applying

      this general rule against double enhancements, we first look to determine

      whether the defendant’s underlying conviction is pursuant to a progressive-

      penalty statute or a specialized habitual-offender statute, if not, there is no

      double-enhancement issue. Id. at 858. “Specialized habitual offender statutes

      authorize sentencing enhancements where the defendant has been convicted of

      a certain number of similar offenses.” Id. at 857. Progressive-penalty statutes

      “elevate the level of an offense (with the correspondingly enhanced sentence)

      where the defendant previously has been convicted of a particular offense.” Id.

      Whether a particular double enhancement is permissible is a matter of statutory

      interpretation. Id.


[5]   Here, Lucas’s underlying convictions are Class B felony robberies, which were

      elevated from Class C felonies based on his use of a deadly weapon. While

      Lucas’s underlying convictions were enhanced from Class C felonies to Class B

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2267| September 23, 2019   Page 4 of 8
      felonies, it was not based on him having been previously convicted of a certain

      number of similar offenses or a particular offense. Therefore, Lucas’s

      underlying convictions were enhanced pursuant to neither a specialized

      habitual-offender statute nor a progressive-penalty statute. Consequently, there

      is no double enhancement issue.


                                  II. Consecutive Sentences
[6]   Because the totality of his consecutive sentences exceeded the advisory sentence

      for a felony which was one class of felony higher than the most serious of the

      felonies for which he was convicted, Lucas contends that his sentence was

      illegal pursuant to Indiana Code subsection 35-50-1-2(c). Indiana Code

      subsection 35-50-1-2(c) provides that


              (c) Except as provided in subsection (d) or (e), the court shall
              determine whether terms of imprisonment shall be served
              concurrently or consecutively. The court may consider the:

                      (1) aggravating circumstances in IC 35-38-1-7.1(a); and

                      (2) mitigating circumstances in IC 35-38-1-7.1(b);

              in making a determination under this subsection. 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 crimes of violence, 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 advisory 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.


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2267| September 23, 2019   Page 5 of 8
[7]   Lucas’s reliance on Indiana Code subsection 35-50-1-2(c) fails for multiple

      reasons. First, Lucas’s convictions did not arise out of one episode of criminal

      conduct. An episode of criminal conduct means “offenses or a connected series

      of offenses that are closely related in time, place, and circumstance.” Ind. Code

      § 35-50-1-2(b). “In determining whether multiple offenses constitute an episode

      of criminal conduct, the focus is on the timing of the offenses and the

      simultaneous and contemporaneous nature, if any of the crimes.” Williams v.

      State, 891 N.E.2d 621, 631 (Ind. Ct. App. 2008). “[A]dditional guidance on the

      question can be obtained by considering whether the alleged conduct was so

      closely related in time, place, and circumstance that a complete account of one

      charge cannot be related without referring to the details of the other charge.” Id.

      (internal quotations omitted). Here, each robbery was a distinct criminal

      offense, occurring on a different day, at a different location, and with a different

      victim. The complete account of each offense can be related without referring to

      the others. Second, Lucas’s convictions are crimes of violence, to which

      Indiana Code subsection 35-50-1-2(c) does not apply. See Indiana Code

      subsection 35-50-1-2(b) (providing that Class B robbery is a crime of violence).

      Given the nature of Lucas’s convictions, we conclude that the totality of his

      consecutive sentences was proper. See O’Connell v. State, 742 N.E.2d 943, 952

      (Ind. 2001) (emphasizing that multiple crimes or victims constitute a valid

      aggravating circumstance for imposing consecutive sentences).


                        III. Ineffective Assistance of Counsel
[8]   Lucas contends that he received ineffective assistance from his trial counsel.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2267| September 23, 2019   Page 6 of 8
        This Court reviews claims of ineffective assistance of counsel
        under the two components set forth in Strickland v. Washington,
        466 U.S. 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the
        defendant must show that counsel’s performance was deficient.
        This requires a showing that counsel’s representation fell below
        an objective standard of reasonableness, and that the errors were
        so serious that they resulted in a denial of the right to counsel
        guaranteed the defendant by the Sixth Amendment[.] Second,
        the defendant must show that the deficient performance
        prejudiced the defendant. To establish prejudice, a 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. A reasonable probability is a
        probability sufficient to undermine confidence in the outcome.


Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002) (internal citations omitted).


        There is a strong presumption that counsel rendered adequate
        assistance and made all significant decisions in the exercise of
        reasonable professional judgment. Counsel is afforded
        considerable discretion in choosing strategy and tactics, and these
        decisions are entitled to deferential review. Isolated mistakes,
        poor strategy, inexperience, and instances of bad judgment do
        not necessarily render representation ineffective.


Id. (quoting Stevens, 770 N.E.2d at 746–47 (citations omitted)). Specifically,

Lucas contends that his trial counsel performed deficiently because his counsel

induced him into accepting a plea agreement containing an illegal sentence. As

we have previously concluded in this memorandum decision, however, Lucas’s

sentence was not illegal. Lucas has failed to establish deficient performance;

therefore, he did not receive ineffective assistance of counsel.



Court of Appeals of Indiana | Memorandum Decision 18A-PC-2267| September 23, 2019   Page 7 of 8
                                            IV. Judicial Bias
[9]    Lucas contends that he was denied due process by the post-conviction court’s

       alleged bias. A judge is presumed to be unbiased and unprejudiced. Cook v.

       State, 612 N.E.2d 1085, 1088 (Ind. Ct. App. 1993). To rebut such a

       presumption, the defendant must establish, based on the judge’s conduct, actual

       bias or prejudice which places the defendant in jeopardy. Id. “Such bias or

       prejudice exists only where there is an undisputed claim or where the judge has

       expressed an opinion on the merits of the pending controversy.” Id. Adverse

       rulings do not support a claim of bias. Id. Specifically, Lucas contends that the

       post-conviction court was biased by (1) failing to grant him a continuance to

       allow him to subpoena his trial counsel and (2) ruling that his sentence was not

       illegal. Lucas’s contentions are nothing more than expressions of his

       dissatisfaction with adverse rulings by the post-conviction court which do not

       support a claim of bias. Lucas has failed to establish that the post-conviction

       court was biased against him.


[10]   The judgment of the post-conviction court is affirmed.


       May, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2267| September 23, 2019   Page 8 of 8
