      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                  FILED
      this Memorandum Decision shall not be                              Dec 22 2016, 8:33 am
      regarded as precedent or cited before any
                                                                              CLERK
      court except for the purpose of establishing                        Indiana Supreme Court
                                                                             Court of Appeals
      the defense of res judicata, collateral                                  and Tax Court

      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                         Gregory F. Zoeller
      Public Defender of Indiana                               Attorney General of Indiana
      Jonathan O. Chenoweth                                    J.T. Whitehead
      Deputy Public Defender                                   Deputy Attorney General
      Indianapolis, Indiana                                    Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Curtis Bacon,                                            December 22, 2016
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               79A02-1604-PC-789
              v.                                               Appeal from the Tippecanoe
                                                               Superior Court 1
      State of Indiana,                                        The Honorable Randy J. Williams,
      Appellee-Respondent.                                     Judge
                                                               Trial Court Cause No.
                                                               79D01-1401-PC-001



      Mathias, Judge.


[1]   In 2011, Curtis Bacon (“Bacon”) was convicted in Tippecanoe Superior Court

      of Class B felony aggravated battery, Class C felony criminal recklessness, and


      Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PC-789 | December 22, 2016     Page 1 of 16
      Class C felony carrying a handgun without a license. He also pleaded guilty to

      the sentencing enhancement of unlawful use of a firearm. The trial court

      sentenced Bacon to an aggregate term of twenty-seven years of incarceration.

      After his convictions and sentence were affirmed on appeal, Bacon filed a

      petition for post-conviction relief. The post-conviction court denied this

      petition, and Bacon appeals and presents one issue: whether the post-conviction

      court clearly erred in concluding that Bacon’s appellate counsel was not

      constitutionally ineffective for failing to present a claim of double jeopardy on

      direct appeal.


[2]   We affirm.


                                    Facts and Procedural History

[3]   The facts underlying Bacon’s convictions were set forth by this court in Bacon’s

      direct appeal as follows:


              On the night of December 4, 2010, Nick’s Nightclub in West
              Lafayette, Indiana, hosted a party attended by over two hundred
              people. At approximately 1:00 a.m. on December 5, 2010, a
              group which included Dion Parker, Drew Harris, Clarence
              Stephens, and Antwain Harrison arrived at the party.
              A separate group consisting of Bacon, Matthew Russ, Quinten
              Russ, Jarrett Powell, Brandon Michael, Da’ion Nunley,
              Dominique Carter, and several others were also at the party.
              Everyone in this group brought weapons to West Lafayette but
              left the weapons in their vehicles when they entered the club.
              While the song “Get Money” was playing, Harrison had his
              money out joking around with his friends. Stephens noticed that
              some people from Bacon’s group were looking at Harrison as

      Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PC-789 | December 22, 2016   Page 2 of 16
        though they planned to “do something to him,” and Stephens
        told Harrison to put his money away, which Harrison did. One
        of the individuals in Bacon’s group made comments to Stephens,
        and Stephens felt threatened. At some point, a fight or a number
        of fights broke out in the club which included altercations
        between Bacon and those in his group and individuals in
        Harrison’s group. Security guards stopped the music, sprayed
        mace, and ordered everyone out of the club.
        Outside the club, there was confusion and a number of the
        individuals in Harrison’s group were separated from each other.
        Harrison and Stephens retrieved their guns from their vehicle
        because of the fight in the club and the feeling that something
        was about to happen and then attempted to find others in their
        group. West Lafayette police officers arrived at the club and
        observed one to two hundred people gathered outside.
        Bacon, Russ, and others in their group noticed Harrison and
        Stephens, approached them, and “jumped them.” Bacon pulled
        his gun and pointed it at either Harrison or Stephens, and Russ
        and the others “told [Bacon] no, be cool there is security. . . .”
        Bacon stated “watch out, let me shoot him, I’m going to have to
        shoot him.” Bacon eventually lowered the gun but continued to
        hold it in his hand. As Carter approached Bacon in the parking
        lot, he heard Bacon state, “Bro, I ain’t playing with them.” Russ
        observed Bacon “aim” his handgun at Harrison and shoot at him
        several times in rapid succession. Bacon fired six shots, dropped
        his gun, and then fled. Bacon did not have a gun permit.
        Harrison suffered a gunshot wound to the back of his neck.
        Harrison’s head jerked, he fell to the ground, blood and fluids
        began to drain from the area around his head, and he lost
        consciousness. Stephens fired two shots in the direction of the
        person who shot Harrison. Police quickly arrived, and ordered
        Stephens to place his gun on the ground. Harrison was
        transported by ambulance to the hospital. Due to the gunshot
        injury, Harrison is considered “a C4 quadriplegic,” he cannot
        move his arms and legs, he is wheelchair bound, he does not
        have control of his bowels or bladder, he needs to be rotated

Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PC-789 | December 22, 2016   Page 3 of 16
                frequently to prevent bed sores, and he experiences significant
                discomfort.

                Powell was subsequently interviewed by police detectives, and
                the interview was recorded. During the interview, Powell stated
                that he “heard people saying, don’t kill him, don’t kill him, don’t
                kill him, some dude was saying don’t kill him” and that he
                observed Bacon aim his gun and shoot it. During an interview
                with police, Bacon stated that he had fired his gun but that he
                was not aiming and that Harrison was shot accidentally.


      Bacon v. State, No. 79A02-1112-CR-1163, 2012 WL 4470997 (Ind. Ct. App.

      Sept. 28, 2012) (transcript citations omitted), trans. denied.1


[4]   As a result of the shootings, the State charged Bacon with Count I, Class B

      felony aggravated battery; Count II, Class C felony battery committed by means

      of a deadly weapon; Count III, Class C felony battery resulting in serious bodily

      injury; Count IV, Class C felony criminal recklessness committed by means of a

      deadly weapon resulting in serious bodily injury; Count V, Class C felony

      criminal recklessness committed while armed with a deadly weapon; Count VI,

      Class A misdemeanor carrying a handgun without a license; Count VII, Class

      C felony carrying a handgun without a license with a prior conviction; and

      Count VIII, unlawful use of a firearm, a sentencing enhancement.


[5]   The jury found Bacon guilty on Counts I–VI, and Bacon then pled guilty on

      Counts VII and VIII. The trial court “merged” Counts II, III, and IV with




      1
          Available at: http://www.in.gov/judiciary/opinions/pdf/09281202ebb.pdf.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PC-789 | December 22, 2016   Page 4 of 16
      Count I and merged Count VI with Count VII. The court then sentenced Bacon

      to fourteen years for his conviction in Count I, four years for his conviction in

      Count V, four years for his conviction in Count VII, and five years for the

      sentencing enhancement in Count VIII. The court ordered the sentences to be

      served consecutively, for an aggregate sentence of twenty-seven years.


[6]   Bacon appealed and argued that the trial court abused its discretion in

      permitting the State to impeach a witness with a prior statement, that the

      evidence was insufficient to sustain his conviction for aggravated battery as a

      Class B felony, and that his sentence was inappropriate in light of the nature of

      the offense and the character of the offender. This court rejected these

      arguments and affirmed Bacon’s convictions and sentence. Bacon, No. 79A02-

      1112-CR-1163, slip op. at 13.


[7]   Bacon filed a pro se petition for post-conviction relief on December 6, 2013. On

      September 17, 2015, Bacon, now represented by the State Public Defender’s

      Office, filed an amended petition for post-conviction relief, which presented one

      issue for the court’s consideration: whether Bacon’s appellate counsel was

      ineffective for failing to present a double jeopardy argument on appeal. The

      post-conviction court held an evidentiary hearing on the petition on January 15,

      2016, and issued an order denying Bacon’s petition on March 16, 2016. Bacon

      now appeals.




      Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PC-789 | December 22, 2016   Page 5 of 16
                               Post-Conviction Standard of Review

[8]   Post-conviction proceedings are not “super appeals” through which convicted

      persons can raise issues they failed to raise at trial or on direct appeal. McCary v.

      State, 761 N.E.2d 389, 391 (Ind. 2002). Post-conviction proceedings instead

      afford petitioners a limited opportunity to raise issues that were unavailable or

      unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443

      (Ind. 2002). The post-conviction petitioner bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Henley v. State, 881

      N.E.2d 639, 643 (Ind. 2008). Thus, on appeal from the denial of a petition for

      post-conviction relief, the petitioner stands in the position of one appealing

      from a negative judgment. Id. To prevail on appeal from the denial of post-

      conviction relief, the petitioner must show that the evidence as a whole leads

      unerringly and unmistakably to a conclusion opposite that reached by the post-

      conviction court. Id. at 643-44.


[9]   Where, as here, the post-conviction court makes findings of fact and

      conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we

      must determine if the court’s findings are sufficient to support its judgment.

      Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947

      N.E.2d 962. Although we do not defer to the post-conviction court’s legal

      conclusions, we review the post-conviction court’s factual findings under a

      clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence or

      judge the credibility of witnesses, and we will consider only the probative



      Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PC-789 | December 22, 2016   Page 6 of 16
       evidence and reasonable inferences flowing therefrom that support the post-

       conviction court’s decision. Id.


                           Ineffective Assistance of Appellate Counsel

[10]   Bacon claims that his appellate counsel was constitutionally ineffective. When

       we review claims of ineffective assistance of appellate counsel, we use the same

       standard applied to claims of ineffective assistance of trial counsel. Harris v.

       State, 861 N.E.2d 1182, 1186 (Ind. 2007). That is, the post-conviction petitioner

       must show that appellate counsel’s performance fell below an objective

       standard of reasonableness and that there is a reasonable probability that but for

       the deficient performance of counsel the result of the proceeding would have

       been different. Id.


[11]   We must consider the totality of an attorney’s performance to determine

       whether the client received constitutionally adequate assistance and must 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.” Reed v.

       State, 856 N.E.2d 1189, 1196 (Ind. 2006). Moreover, ineffective assistance is

       rarely found in cases where a defendant asserts that appellate counsel failed to

       raise an issue on direct appeal because the decision of what issues to raise is one

       of the most important strategic decisions to be made by appellate counsel. Id.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PC-789 | December 22, 2016   Page 7 of 16
[12]   Our supreme court has noted that claims of ineffective assistance of appellate

       counsel generally fall into three categories: (1) denial of access to an appeal; (2)

       waiver of issues; and (3) failure to present issues well. Id. at 1195. To show that

       counsel was ineffective for failing to raise an issue on appeal, the defendant

       must overcome the strongest presumption of adequate assistance, and judicial

       scrutiny is highly deferential. Id. To evaluate the performance prong when

       counsel failed to raise issues upon appeal, 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. 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.


                                              Double Jeopardy

[13]   Bacon contends that his appellate counsel should have raised the issue of

       double jeopardy on direct appeal. Specifically, he argues that his convictions on

       Count I and Count V constituted double jeopardy under the Richardson actual

       evidence test.


[14]   Article 1, Section 14 of the Indiana Constitution provides that “[n]o person

       shall be put in jeopardy twice for the same offense.” We analyze alleged

       violations of Indiana’s Double Jeopardy Clause pursuant to our supreme

       court’s opinion in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). In Richardson,

       the court held that “two or more offenses are the ‘same offense’ in violation of
       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PC-789 | December 22, 2016   Page 8 of 16
       Article I, Section 14 of the Indiana Constitution, if, with respect to either the

       statutory elements of the challenged crimes or the actual evidence used to

       convict, the essential elements of one challenged offense also establish the

       essential elements of another challenged offense.” 717 N.E.2d at 49 (emphasis

       in original).


[15]   Under the “actual evidence” test, a defendant must demonstrate a reasonable

       possibility that the evidentiary facts used by the fact-finder to establish the

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

       essential elements of a second challenged offense. Singh v. State, 40 N.E.3d 981,

       986 (Ind. Ct. App. 2015), trans. denied, (citing Richardson, 717 N.E.2d at 53).

       The term “reasonable possibility” “turns on a practical assessment of whether

       the jury may have latched on to exactly the same facts for both convictions.” Id.

       (citing Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002)).


[16]   Application of the actual evidence test requires us to identify the essential

       elements of each of the challenged crimes and to evaluate the evidence from the

       jury’s perspective. Id. (citing Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008)).

       Accordingly, when reviewing a claim under the actual evidence test, we

       consider the essential elements of the offenses, the charging information, the

       jury instructions, the evidence, and the arguments of counsel. Id. (citing Lee,

       892 N.E.2d at 1234).


[17]   Bacon claims that the same evidence used to support his conviction for criminal

       recklessness in Count V was the same as the evidence used to support his


       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PC-789 | December 22, 2016   Page 9 of 16
       conviction for aggravated battery in Count I and for criminal recklessness in

       Count IV, which was merged into Count I due to double jeopardy concerns.


[18]   Count I alleged that Bacon “did knowingly or intentionally inflict injury on a

       person, to wit: Antwain Harrison, that created a substantial risk of death or

       caused serious, permanent disfigurement or protracted loss or impairment of

       the function of a bodily member or organ.”2 Direct Appeal App. p. 26. Count

       IV alleged that Bacon “did recklessly, knowingly, or intentionally inflict serious

       bodily injury on another person, to wit: Antwain Harrison, committed by

       means of a deadly weapon, to wit: a handgun.”3 Id. at 29. Thus, Count IV, like

       Count I, was based on the act of shooting Harrison.




       2
        This tracks the language of the statute which, at the time of Bacon’s offenses, defined the crime of
       aggravated battery, and which provided:
                A person who knowingly or intentionally inflicts injury on a person that creates a
                substantial risk of death or causes:
                    (1) serious permanent disfigurement;
                    (2) protracted loss or impairment of the function of a bodily member or organ; or
                    (3) the loss of a fetus;
                commits aggravated battery, a Class B felony.
       Ind. Code § 35-42-2-1.5 (1997).

       3
         This too tracks the language of the relevant portion of the statute defining the crime of criminal
       recklessness, which provided in relevant part:
                (d) A person who recklessly, knowingly, or intentionally:
                     (1) inflicts serious bodily injury on another person; or
                     (2) performs hazing that results in serious bodily injury to a person;
                commits criminal recklessness, a Class D felony. However, the offense is a Class C felony if
                committed by means of a deadly weapon.
       Ind. Code § 35-42-2-2(d) (2006).


       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PC-789 | December 22, 2016            Page 10 of 16
[19]   Count V alleged that Bacon “did recklessly, knowingly, or intentionally

       perform an act that created a substantial risk of bodily injury to another person,

       and that Bacon committed said offense while shooting a firearm into a building

       or other place where people were likely to gather, to wit: Nick’s Bar and/or

       parking lot for Nick’s Bar.”4 Id. at 30. Count V made no mention of Harrison

       and was based on the act of shooting into the crowd in the parking lot.


[20]   Based upon the charging information, it is apparent that the State based Counts

       I and IV on Bacon’s act of shooting Harrison and seriously injuring him. In

       contrast, Count V alleged that Bacon recklessly created a substantial risk of

       bodily injury to any person by shooting a firearm into the parking lot at the bar,

       which was a place where people were likely to gather, and in fact had gathered.


[21]   The trial court merged Count IV into Count I because both were supported by

       the same evidence, i.e., Bacon shooting Harrison and seriously injuring him.

       Bacon now claims that the trial court should have also merged Count V with




       4
           This tracks the relevant portion of I.C. § 35-42-2-2, as it provided at the time of Bacon’s offenses:

                  (b) A person who recklessly, knowingly, or intentionally performs:
                       (1) an act that creates a substantial risk of bodily injury to another person; or
                       (2) hazing;
                  commits criminal recklessness. Except as provided in subsection (c), criminal recklessness is
                  a Class B misdemeanor.
                  (c) The offense of criminal recklessness as defined in subsection (b) is:
                                                                    ***
                       (3) a Class C felony if:
                             (A) it is committed by shooting a firearm into an inhabited dwelling or other
                             building or place where people are likely to gather[.].
       I.C. § 35-42-2-2(b), (c) (2006) (emphases added).


       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PC-789 | December 22, 2016                Page 11 of 16
       Count I and that his appellate counsel was ineffective for failing to present this

       claim of error on appeal. Bacon does not claim that, as charged, Count V was

       based on the same evidence as Count I or Count IV. To the contrary, as set

       forth above, they were based on different allegations, one based on shooting at

       Harrison, and the other based on shooting at a place where people where likely

       to gather. Instead, Bacon bases his claim on the trial court’s final jury

       instruction regarding Count V, which, unlike the charging information, referred

       to Harrison as the victim.


[22]   The trial court’s final instruction on Count V provided:


               The crime of criminal recklessness is defined by law as follows: A
               person who recklessly, knowingly, or intentionally performs an
               act that creates a substantial risk of bodily injury to another
               person commits criminal recklessness, a Class B misdemeanor.
               The offense is a Class D felony if it is committed while armed
               with a deadly weapon. The offense is a Class C felony if it is
               committed by shooting a firearm into an inhabited dwelling or
               other building or place where people are likely to gather, to wit:
               Nick’s Bar and or the parking lot for Nick’s Bar.
               Before you may convict the Defendant of criminal recklessness as
               alleged in Count V, the State must have proved each of the
               following beyond a reasonable doubt:
               1. The Defendant
               2. recklessly, knowingly or intentionally
               3. performed an act that created a substantial risk of bodily injury
               to Antwain Harrison.
               If the State failed to prove each of these elements beyond a
               reasonable doubt, you should find the Defendant not guilty of
               Criminal Recklessness.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PC-789 | December 22, 2016   Page 12 of 16
               If the State did prove each of these elements beyond a reasonable
               doubt, you should find the Defendant guilty of criminal
               recklessness, a Class B misdemeanor.
               If you further find that the state proved beyond a reasonable
               doubt that the offense was committed while the Defendant was
               armed with a deadly weapon, you should find the Defendant
               guilty of criminal recklessness, a Class D felony.
               If you further find that the state proved beyond a reasonable
               doubt that the offense was committed by shooting a firearm into
               an inhabited dwelling or other building or place where people
               were likely to gather, you should find the Defendant guilty of
               criminal recklessness (Committed While armed with a Deadly
               Weapon), as charged in Count V, a Class C felony.

       Direct Appeal App. p. 133.


[23]   Because this instruction provides that the State was required to prove that

       Bacon’s act created a substantial risk of serious bodily injury to Harrison, Bacon

       claims that his conviction on Count V was necessarily based on the same

       evidence used to support his convictions on Counts I and IV, which were also

       based on the evidence of Bacon shooting Harrison. Although this is a colorable

       argument, we are not convinced that it was significant and obvious from the

       face of the record or clearly stronger than the issues presented by Bacon’s

       appellate counsel on direct appeal.


[24]   First, Count V, as charged, did not mention Harrison. Instead, it alleged that

       Bacon created a substantial risk of bodily injury to another person by shooting a

       firearm into the parking lot at the bar, which was crowded with people. The

       trial court’s preliminary instruction regarding Count V quoted the language of


       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PC-789 | December 22, 2016   Page 13 of 16
       the information and did not mention Harrison. In addition to the final

       instruction which mentioned Harrison, the trial court gave another final

       instruction quoting the language of the charging information, which did not

       mention Harrison. In addition, during the State’s closing argument, the

       prosecuting attorney argued that the evidence supporting Count V was not that

       Bacon shot Harrison, but that he fired his handgun at the crowded parking lot:


               Mr. Bacon performed an act that created substantial risk of
               bodily injury to another person, he fired his handgun across the
               parking lot six (6) times and it has to be either in a dwelling,
               building, or in a place where other people are likely to gather;
               clearly a parking lot outside of a tavern people are likely to gather
               after.


       Trial Tr. p. 713.5


[25]   Furthermore, the verdict form used by the jury on Count V made no mention of

       Harrison as the intended victim and the jury verdict on Count V provided

       simply, “We, the jury, find the defendant, Curtis Lee Bacon, GUILTY of

       Information of Criminal Recklessness by shooting a firearm into a building or

       other place where people are likely to gather, a Class C Felony.” Direct Appeal

       App. p. 97.




       5
        We reject Bacon’s argument that the prosecuting attorney did not clearly differentiate between the evidence
       supporting the different counts and that the post-conviction court therefore clearly erred in concluding
       otherwise.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PC-789 | December 22, 2016        Page 14 of 16
[26]   Thus, it appears that the State would have had a strong counter argument to

       any double jeopardy claim Bacon now argues should have been presented on

       direct appeal. That is, the evidentiary facts supporting Count I (and Count IV,

       which was merged into Count I) were that Bacon shot Harrison, causing serious

       bodily injury to Harrison, whereas the evidentiary facts supporting Count V

       were that Bacon also fired his weapon into the crowd that had gathered in the

       parking lot, thereby creating a risk of serious bodily injury to any other person.

       It therefore appears that Count V required the jury to find a distinct evidentiary

       fact: that Bacon fired his weapon into a building or other place where people

       were likely to gather, i.e., the parking lot of the bar.6


[27]   Given these facts and circumstances, we cannot say that the double jeopardy

       argument regarding Count V was significant and obvious from the face of the

       record. Even if it was, given the strength of the argument that Count V was

       based on other actual evidence, we reject Bacon’s claim that his appellate

       counsel should have realized the double jeopardy issue was clearly stronger

       than the issues he raised in Bacon’s direct appeal. Indeed, Bacon’s appellate

       counsel testified at the post-conviction hearing that, because the charging

       information, the preliminary instructions, and the verdict form all informed the




       6
         We find Bacon’s citation to the cases of Stewart v. State, 866 N.E.2d 858 (Ind. Ct. App. 2007), and Rutherford
       v. State, 866 N.E.2d 867 (Ind. Ct. App. 2007), to be unavailing. In those cases, which involved the same
       shooting, the prosecuting attorney made no attempt to “split hairs” regarding the separate shots supporting
       the separate convictions for attempted battery and criminal recklessness. See Stewart, 866 N.E.2d at 864-65;
       Rutherford, 866 N.E.2d at 872. Moreover, in those cases, the record was unclear as to whether the defendants
       fired more than one shot toward the vehicle containing the victims. Id. This is in contrast to the facts here,
       where there was clear evidence that Bacon fired six separate shots, only one of which hit Harrison.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PC-789 | December 22, 2016           Page 15 of 16
       jury that Count V was based on Bacon shooting at the crowd, not Harrison, he

       did not perceive there to be a strong double jeopardy argument.


[28]   Because a claim of double jeopardy was not clearly stronger than the issues

       Bacon’s appellate counsel did present, we cannot say that Bacon’s appellate

       counsel was ineffective.7


[29]   Affirmed.


       Robb, J., and Brown, J., concur.




       7
        Because of our conclusion, we find it unnecessary to directly address Bacon’s claims that the post-
       conviction court’s findings regarding Count V were clearly erroneous.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PC-789 | December 22, 2016         Page 16 of 16
