MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),                                     Jul 02 2018, 6:31 am
this Memorandum Decision shall not be
                                                                               CLERK
regarded as precedent or cited before any                                  Indiana Supreme Court
                                                                              Court of Appeals
court except for the purpose of establishing                                    and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Daurrell L. Figgs                                         Curtis T. Hill, Jr.
Pendleton, Indiana                                        Attorney General of Indiana

                                                          Chandra K. Hein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Daurrell L. Figgs,                                        July 2, 2018
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          02A05-1711-PC-2839
        v.                                                Appeal from the Allen Superior
                                                          Court
State of Indiana,                                         The Honorable John F. Surbeck,
Appellee-Respondent                                       Jr., Judge
                                                          Trial Court Cause No.
                                                          02D05-1702-PC-25



Altice, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 02A05-1711-PC-2839 | July 2, 2018                Page 1 of 10
[1]   Daurrell L. Figgs, by counsel, filed a petition for post-conviction relief alleging

      that trial and appellate counsel were ineffective for failing to raise a double

      jeopardy challenge to his convictions for robbery and aggravated battery. The

      post-conviction court denied Figgs’s petition, concluding that Figgs was not

      subjected to double jeopardy and, thus, did not receive ineffective assistance of

      trial or appellate counsel. Figgs, now pro se, appeals from the denial of the

      petition. He contends that his post-conviction counsel failed to submit

      argument and evidence in support of the petition, which deprived him of due

      process. Additionally, Figgs argues that the post-conviction court erred when it

      denied his claims of ineffective assistance of trial and appellate counsel.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On September 15, 2010, a jury found Figgs guilty of aggravated battery (Count

      I) and two counts of armed robbery (Counts II and III), all Class B felonies.

      The trial court entered judgments of conviction on each count and then

      sentenced Figgs to an aggregate term of thirty-five years in prison. The

      convictions were affirmed on direct appeal. Figgs v. State, Cause No. 02A03-

      1010-CR-597 (Ind. Ct. App. July 19, 2011), trans. denied.


[4]   The facts relevant to Figgs’s convictions were set out in detail in our

      memorandum opinion on direct appeal. For our purposes, we observe that on

      the evening of September 1, 2009, Jessica Simon and her sister, Genell Soulier,

      were sitting in Simon’s parked car visiting and smoking a cigarette.

      Court of Appeals of Indiana | Memorandum Decision 02A05-1711-PC-2839 | July 2, 2018   Page 2 of 10
              Figgs approached the passenger side of the car and asked for a
              cigarette. Soulier told him that they were smoking the last one,
              so Figgs walked away. About one minute later, Figgs and a
              second man entered the back seat of Simon’s car. Hearing a
              police siren, Figgs ordered Simon to drive away because “he had
              a warrant out for his arrest.” Simon obeyed Figgs’s command
              and drove away….


              Figgs ordered Simon to turn left and stop the car. Showing the
              sisters that he had a semi-automatic handgun, Figgs said, “you
              know what the f*ck this is,” and demanded that Simon and
              Soulier give him their purses. When Simon opened her wallet to
              show Figgs that she had no money, Figgs hit her on the side of
              the face with the butt of his gun; this caused Simon’s glasses to
              fall off her face and into her purse. Figgs then grabbed Simon’s
              purse, exited the vehicle, and opened the front-passenger door
              where Soulier was seated. Figgs pulled on Soulier’s purse, and as
              he pulled on her purse, he pulled Soulier out of the car. Figgs
              then pointed his gun in Soulier’s face and told her that he would
              shoot her if she did not sit down. Although Soulier sat down,
              Simon walked to the back of the car and begged Figgs to return
              her glasses. Figgs pointed his gun at Simon and asked her, “what
              makes you think I won’t f*cking shoot you?” Figgs then shot
              Simon in the stomach. As Figgs fled on foot, Simon drove
              herself and Soulier to a nearby fire station where they sought
              assistance.


      Slip op. at 3-4 (citations omitted).


[5]   On February 21, 2017, Figgs, by counsel, filed the instant petition for post-

      conviction relief. He alleged that both trial and appellate counsel were

      ineffective for failing to argue that his convictions on Counts I and II violated

      the Indiana Constitution’s prohibition against double jeopardy. On June 23,


      Court of Appeals of Indiana | Memorandum Decision 02A05-1711-PC-2839 | July 2, 2018   Page 3 of 10
      2017, the parties appeared for a hearing and entered into a stipulation of

      evidence in lieu of an evidentiary hearing. The parties agreed that the issues

      raised in the petition could be resolved on the basis of the record of proceedings

      from the trial and appeal. The court then set a briefing schedule.


[6]   On July 26, 2017, Figgs’s post-conviction counsel filed an eleven-page brief in

      support of the petition. Counsel then followed the State’s brief with a reply

      brief in support of the petition on August 18, 2017. Counsel also tendered

      detailed proposed findings of fact and conclusions with the post-conviction

      court on October 10, 2017. The trial court denied the petition on October 24,

      2017. Figgs now appeals from the denial and represents himself on appeal.

      Additional information will be provided below as needed.


                                          Discussion & Decision


                                       1. Post-Conviction Counsel


[7]   Figgs initially challenges the performance of his post-conviction counsel.

      According to Figgs, he was “denied a procedurally-fair post-conviction setting

      when post-conviction counsel failed to adequately investigate and argue [the

      petition] or to submit a complete trial record, preventing a full and meaningful

      review of the record for the ‘same evidence’ double jeopardy issue.” Appellant’s

      Brief at 8-9. Figgs asserts that there were “other issues with potential merit” and

      complains that counsel did not include the jury instructions in the evidence

      before the post-conviction court. Id. at 9.



      Court of Appeals of Indiana | Memorandum Decision 02A05-1711-PC-2839 | July 2, 2018   Page 4 of 10
[8]   As recognized by Figgs, there is no federal or state constitutional right to

      counsel in post-conviction proceedings. See Hill v. State, 960 N.E.2d 141, 145

      (Ind. 2012). “It thus is not required that the constitutional standards be

      employed when judging the performance of counsel when prosecuting a post-

      conviction petition at the trial level or at the appellate level.” Baum v. State, 533

      N.E.2d 1200, 1201 (Ind. 1989). In other words, the rigorous Strickland standard

      does not apply. Id. Rather, “a ‘lesser standard’ based on due-course-of-law

      principles” applies. Hill, 960 N.E.2d at 145 (quoting Baum, 533 N.E.2d at

      1201). “When evaluating post-conviction counsel, courts inquire whether

      ‘counsel in fact appeared and represented the petitioner in a procedurally fair

      setting which resulted in a judgment of the court.’” Id. (quoting Baum, 533

      N.E.2d at 1201).


[9]   Here, post-conviction counsel appeared, entered into a stipulation of evidence,

      filed a thorough brief in support of the petition and a reply brief, and tendered

      proposed findings and conclusions. Based on the stipulated evidence and

      arguments submitted by the parties, the post-conviction court entered judgment

      in favor of the State. At no point in the proceedings did counsel “abandon”

      Figgs. Graves v. State, 823 N.E.2d 1193, 1197 (Ind. 2005) (no abandonment

      where counsel appeared, examined petitioner, and submitted two affidavits to

      establish that reconstruction of record of guilty plea hearing was impossible); cf.

      Waters v. State, 574 N.E.2d 911, 912 (Ind. 1991) (“Counsel, in essence,

      abandoned his client and did not present any evidence in support of his client’s

      claim.”); Taylor v. State, 882 N.E.2d 777, 784 (Ind. Ct. App. 2008) (counsel

      Court of Appeals of Indiana | Memorandum Decision 02A05-1711-PC-2839 | July 2, 2018   Page 5 of 10
       “effectively abandoned” petitioner where counsel “called no witnesses,

       presented no affidavits, and did not submit the trial record”). Post-conviction

       counsel’s failure to include the jury instructions in the record and pursuit of

       only a double-jeopardy argument in addressing the effectiveness of trial and

       appellate counsel do not amount to abandonment. On the contrary, the record

       establishes that Figgs received a procedurally fair post-conviction proceeding.


                                              2. Double Jeopardy


[10]   Figgs next argues that his convictions related to the aggravated battery and

       robbery of Simon amounted to double jeopardy in violation of Article 1,

       Section 14 of the Indiana Constitution. Specifically, he asserts:


               [T]he convictions are predicated on the same act of force required
               to overcome victim resistance and get away from the premises
               with the property. There is also a reasonable possibility that the
               jury relied upon the same evidentiary facts to establish the
               essential elements of both the robbery and the aggravated battery
               of Simon, violating Indiana’s Richardson test and the protections
               afforded by Indiana’s rules of statutory construction and
               common law.


       Appellant’s Brief at 12. Accordingly, Figgs contends that the post-conviction

       court erred when it determined that trial and appellate counsel were not

       ineffective for failing to raise a double jeopardy challenge.


[11]   Under Indiana’s Double Jeopardy Clause, a defendant may not be convicted of

       two offenses if “with respect to either the statutory elements of the challenged

       crimes or the actual evidence used to convict, the essential elements of one

       Court of Appeals of Indiana | Memorandum Decision 02A05-1711-PC-2839 | July 2, 2018   Page 6 of 10
       challenged offense also establish the essential elements of another challenged

       offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999) (emphases in

       original). Our focus here is on the actual evidence used to convict Figgs of the

       offenses. This analysis requires a consideration of whether a reasonable

       possibility exists that the evidentiary facts used to establish the essential

       elements of one offense may also have been used to establish all of the essential

       elements of the other challenged offense. See Garrett v. State, 992 N.E.2d 710,

       719 (Ind. 2013). The reasonable possibility standard requires more than a

       logical possibility and turns on a practical assessment of whether the jury may

       have latched on to the same facts for both convictions. Id. at 719-20 (“We

       evaluate the evidence from the jury’s perspective and may consider the charging

       information, jury instructions, and arguments of counsel.”). Thus, convictions

       for multiple offenses committed during a protracted criminal episode are

       permitted when the case is prosecuted in a manner that insures that the guilty

       verdicts are not based on the same evidentiary facts. Id. at 720.


[12]   To establish robbery as charged, the State was required to prove that Figgs,

       while armed with a deadly weapon,1 knowingly or intentionally took property

       from Simon (or Simon’s presence) by using or threatening the use of force or by

       putting Simon in fear. See Ind. Code § 35-42-5-1(a); Direct Appeal Appendix at

       12. To establish aggravated battery as charged, the State needed to prove that




       1
        The offense was elevated to a Class B felony based on Figgs’s use of a deadly weapon. Bodily injury
       and/or serious bodily injury were not alleged by the State with respect to the robbery offense.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1711-PC-2839 | July 2, 2018            Page 7 of 10
       Figgs knowingly or intentionally injured Simon, creating a substantial risk of

       death or causing serious permanent disfigurement or protracted loss or

       impairment of the function of a bodily member or organ. See I.C. § 35-42-2-1.5;

       Direct Appeal Appendix at 11.


[13]   The facts, as presented to the jury, clearly establish two separate offenses

       committed against Simon. Figgs robbed Simon at gunpoint when he took her

       purse from her inside the car. After next robbing Soulier at gunpoint, Figgs

       then shot Simon after she got out of the car with her hands up and pleaded with

       him for the glasses out of her purse. The prosecutor distinguished between the

       two separate crimes during opening statements:


               Defendant decides to pull out a gun, pistol whips them, …
               threatens them, robs them both, terrorizes them and then at the
               very end, after doing all of that, as [Simon] pleads for her life,
               and says please, just take what you want, let me have my glasses
               back, he shoots her, for sport.


       Transcript at 112.


[14]   At sentencing, the trial court emphasized the separate nature of the crimes. The

       court found that the shooting was “truly offensive” and “totally unnecessary.”

       Sentencing Transcript at 12. The court noted that after stripping Soulier of her

       purse, Figgs then shot Simon “for absolutely no reason at all”. Id. The court

       continued: “There was no reason, no meaning, no purpose. It’s totally separate

       and distinct from the other offenses.” Id. We agree with the trial court’s

       assessment in this regard, and we conclude that the post-conviction court


       Court of Appeals of Indiana | Memorandum Decision 02A05-1711-PC-2839 | July 2, 2018   Page 8 of 10
       properly determined there was no reasonable probability that the jury used the

       same evidence to convict Figgs of the robbery and aggravated battery of Simon.


[15]   Finally, relying on the common law, Figgs argues that the shooting occurred

       only because Simon resisted during the robbery and that the added force he

       used against her was necessary to complete the robbery.2 We agree with the

       post-conviction court’s response to this argument. The evidence establishes that

       at the time of the shooting, Simon had her hands up and offered no resistance

       to Figgs. She simply pleaded for her glasses. The shooting was not necessary

       to enable Figgs – the only one armed with a gun – to make off with the purses.

       In other words, the shooting was in addition to and “extended well beyond

       what was necessary to rob” the women. Hopkins v. State, 759 N.E.2d 633, 639-

       40 (Ind. 2001) (“where the confinement of a victim is greater than that which is

       inherently necessary to rob them, the confinement, while part of the robbery, is

       also a separate criminal transgression”).


[16]   Because Figgs did not have a viable double jeopardy claim, his trial and

       appellate counsel were not ineffective for failing to raise the claim.

       Accordingly, the post-conviction court properly denied Figgs’s petition for post-

       conviction relief.




       2
         In the context of double jeopardy, Figgs attempts to relitigate whether the shooting was done knowingly or
       intentionally. But that issue is not properly before us. The jury found that Figgs acted knowingly or
       intentionally when he injured Simon by shooting her in the stomach.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1711-PC-2839 | July 2, 2018             Page 9 of 10
Najam, J. and Robb, J., concur.




Court of Appeals of Indiana | Memorandum Decision 02A05-1711-PC-2839 | July 2, 2018   Page 10 of 10
