                                                                        FILED
                                                                   Feb 24 2017, 9:36 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark Small                                                Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Ellen H. Meilaender
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Michael Dowdell,                                          February 24, 2017
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          49A02-1604-PC-878
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Kurt M. Eisgruber,
Appellee-Respondent.                                      Judge
                                                          The Honorable Steven J. Rubick,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49G01-9508-PC-120351



Najam, Judge.




Court of Appeals of Indiana | Opinion 49A02-1604-PC-878 | February 24, 2017                 Page 1 of 11
                                        Statement of the Case
[1]   Michael Dowdell appeals the post-conviction court’s denial of his successive

      petition for post-conviction relief. Dowdell raises one issue for our review,

      which we restate as whether the post-conviction court erred when it concluded,

      on the merits of Dowdell’s petition, that Dowdell did not receive ineffective

      assistance from his appellate counsel. We affirm.


                                  Facts and Procedural History
[2]   The facts underlying Dowdell’s convictions and the procedural history

      immediately following those convictions were stated by the Indiana Supreme

      Court as follows:

              Kenneth Pack and Kimberly Renee Saxton had their first date on
              the evening of August 22, 1995. The two ate take-out food at
              Pack’s house and then watched television. Pack’s roommate,
              Lawrence Moore, was also at home but remained in his
              bedroom. At about 8:30 p.m., Pack heard a knock at the door
              and answered it. He saw Dowdell, whom he had known for
              nearly twenty years, on the front step. When Pack opened the
              door, another man stepped out from behind Dowdell and put a
              gun to Pack’s head. The armed stranger led Pack to the kitchen
              where he then ordered him to call for whomever was in the
              house. Pack complied, and Moore and Saxton came to the
              kitchen. The stranger ordered Saxton to tie up Pack and Moore,
              which she did. The stranger then held the three at gunpoint
              while Dowdell ransacked the house. Dowdell later returned to
              the kitchen and spoke to the stranger who responded by asking
              where the money was and firing a bullet into the ceiling. Pack
              told the robbers that he had $200 tucked under a sofa cushion.
              Dowdell returned and, according to Pack’s testimony,
              “whispered something to [the stranger] and then the [stranger]

      Court of Appeals of Indiana | Opinion 49A02-1604-PC-878 | February 24, 2017   Page 2 of 11
              just starting shooting.” Saxton and Moore both died of the
              gunshot wounds. Pack survived.


              Dowdell was arrested and charged with two counts of felony
              murder, one count of attempted murder, one count of robbery,
              and three counts of criminal confinement. The State’s primary
              witness at trial was Pack. In addition, the State called Anthony
              Ross who testified that, while he was waiting in a holding cell to
              appear in court in August of 1995, Dowdell told him that he and
              another man had gone to Pack's house and shot the people inside
              because Dowdell and a friend “had got beat out [of] some
              drugs.” A jury found Dowdell guilty on all counts and the trial
              court sentenced him to an aggregate term of 160 years
              imprisonment. Dowdell initiated a direct appeal of his
              convictions but then sought leave to pursue postconviction relief
              in the trial court. Leave was granted, and Dowdell filed a
              petition for postconviction relief in the trial court, which was
              denied. The direct appeal was then reinstated and consolidated
              with the appeal from the denial of postconviction relief.


      Dowdell v. State, 720 N.E.2d 1146, 1149 (Ind. 1999) (“Dowdell I”).


[3]   On the direct appeal issues raised in Dowdell I, the Indiana Supreme Court held

      that the trial court abused its discretion in sentencing Dowdell because the court

      had “fail[ed] to find and balance” the “significant mitigating circumstance” of

      Dowdell’s lack of criminal history. Id. at 1154. As such, our supreme court

      remanded to the trial court for resentencing. On the post-conviction issues, our

      supreme court held that Dowdell did not receive constitutionally effective

      assistance from his trial counsel. Id. at 1151. The court then remanded for the

      post-conviction court to consider whether that deficient performance resulted in

      prejudice to Dowdell. Id. at 1152.

      Court of Appeals of Indiana | Opinion 49A02-1604-PC-878 | February 24, 2017   Page 3 of 11
[4]   Thereafter, the trial court resentenced Dowdell. In particular, the trial court

      sentenced him as follows:


                 The Court resentenced Defendant to a total executed term of 100
                 years, with [below-presumptive1] terms of 50 years on each of the
                 murders, and [the presumptive term2 of] 30 years on the
                 attempted murders. The [C]ourt also entered [presumptive3]
                 sentences of 10 years on each of the robbery and criminal
                 confinement counts. The Court then determined that the murder
                 convictions would run consecutive to each other and the other
                 sentences would run concurrently with the murders. As
                 mitigating factors[,] the [C]ourt found the defendant’s limited
                 criminal history, the fact that he was not the actual shooter, that
                 he was helping to raise a child[,] and that incarceration would be
                 a hardship on the child. As aggravating circumstances, the
                 [C]ourt found that the defendant had a relationship with one of
                 the victims which he exploited to gain access, the victims
                 recommended an aggravated sentence, and the severe injuries
                 suffered by the victims.


      Appellant’s App. Vol. 2 at 34-35. The court then found that those aggravating

      and mitigating circumstances “balance[d].” Dowdell v. State, No. 49A05-0008-

      CR-353, R. at 83 (Ind. Ct. App. Aug. 24, 2000). Nonetheless, the trial court

      imposed consecutive sentences “based upon the violent nature of those




      1
          See Ind. Code § 35-50-2-3(a) (1995).
      2
          See id. §§ 35-42-5-1, -50-2-4.
      3
          See id. § 35-50-2-5.

      Court of Appeals of Indiana | Opinion 49A02-1604-PC-878 | February 24, 2017   Page 4 of 11
      convictions.” Id. at 84.4 As the post-conviction court in the instant matter

      found, “[t]he [trial c]ourt [in resentencing] . . . determined that the consecutive

      sentences were justified by the separate, additional aggravating circumstance

      regarding the violent nature of the crimes.” Appellant’s App. Vol. 2 at 35

      (emphasis added).


[5]   Dowdell appealed his revised sentence. In relevant part, he argued that the trial

      court abused its discretion when it ordered his sentences for murder to run

      consecutively based on “the violent nature of the crimes” because “murder is

      always violent.” Dowdell v. State, No. 49A05-0008-CR-353, slip op. at 9 (Ind.

      Ct. App. Apr. 26, 2001) (“Dowdell II”). We rejected that argument and affirmed

      his revised sentence. Id.


[6]   In 2005, Dowdell filed a motion to correct erroneous sentence with the trial

      court, which the court denied. On appeal from that judgment, Dowdell argued

      that “the trial court could not impose consecutive sentences after imposing

      reduced and presumptive sentences on the individual convictions.” Dowdell v.

      State, No. 49A02-0511-PC-1101, slip op. at 5 (Ind. Ct. App. Aug. 9, 2006)

      (“Dowdell III”). But we did not consider the merits of Dowdell’s argument on

      appeal. Instead, we held that Dowdell’s alleged error was not obvious on the

      face of the judgment, and, therefore, we affirmed the trial court’s denial of his

      motion to correct erroneous sentence. Id. at 10 (citing Jackson v. State, 806


      4
        In his Reply Brief, Dowdell suggests that we should ignore the trial court’s statements during the
      resentencing hearing because those statements are not reproduced in full in the court’s chronological case
      summary. We reject that argument.

      Court of Appeals of Indiana | Opinion 49A02-1604-PC-878 | February 24, 2017                       Page 5 of 11
      N.E.2d 773, 774 (Ind. 2004)). We also noted that Dowdell had not perfected a

      successive petition for post-conviction relief and, accordingly, that the trial

      court “had no jurisdiction” to entertain his motion to correct error as such a

      petition. Id.


[7]   In February of 2013, we granted Dowdell’s motion for leave to file a successive

      petition for post-conviction relief. In his successive petition, Dowdell argued, in

      relevant part, that his appellate counsel in Dowdell II had rendered ineffective

      assistance of counsel when she did not rely on Marcum v. State, 725 N.E.2d 852

      (Ind. 2000), and argue, as Dowdell had attempted to do in Dowdell III, that the

      trial court erred when it ordered consecutive sentences after having imposed

      presumptive or below-presumptive sentences on each of Dowdell’s convictions.

      Following an evidentiary hearing, the post-conviction court found that Dowdell

      did not receive ineffective assistance from his appellate counsel in Dowdell II.5

      This appeal ensued.


                                      Discussion and Decision
[8]   Dowdell appeals the post-conviction court’s denial of his successive petition for

      post-conviction relief. Our standard of review is clear:

              The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)



      5
        The post-conviction court also found that Dowdell’s argument was precluded by res judicata, but we need
      not consider that alternative ground for the court’s denial of the successive petition.

      Court of Appeals of Indiana | Opinion 49A02-1604-PC-878 | February 24, 2017                    Page 6 of 11
              (citations omitted). When appealing the denial of 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, a petitioner must show
              that the evidence as a whole leads unerringly and unmistakably
              to a conclusion opposite that reached by the post-conviction
              court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).
              Further, the post-conviction court in this case made findings of
              fact and conclusions of law in accordance with Indiana Post-
              Conviction Rule 1(6). Although we do not defer to the post-
              conviction court’s legal conclusions, “[a] post-conviction court’s
              findings and judgment will be reversed only upon a showing of
              clear error—that which leaves us with a definite and firm
              conviction that a mistake has been made.” Ben-Yisrayl v. State,
              729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).


      Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014) (alteration original to

      Campbell).


[9]   In particular, Dowdell argues that he received ineffective assistance from his

      appellate counsel in Dowdell II:


              When evaluating an ineffective assistance of counsel claim, we
              apply the two-part test articulated in Strickland v. Washington, 466
              U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
              State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
              prong, “the defendant must show deficient performance:
              representation that fell below an objective standard of
              reasonableness, committing errors so serious that the defendant
              did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
              McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
              Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
              second prong, “the defendant must show prejudice: a reasonable
              probability (i.e. a probability sufficient to undermine confidence
              in the outcome) that, but for counsel’s errors, the result of the
      Court of Appeals of Indiana | Opinion 49A02-1604-PC-878 | February 24, 2017   Page 7 of 11
               proceeding would have been different.” Id. (citing Strickland, 466
               U.S. at 694, 104 S. Ct. 2052).


       Id. at 274.


[10]   Here, in resentencing Dowdell following our supreme court’s decision in

       Dowdell I, the trial court imposed presumptive or below-presumptive sentences

       for each conviction and expressly stated that the aggravators and mitigators

       relied on in reaching those particular sentences were in balance. However, the

       court then identified a freestanding, separate aggravator that it had not yet

       considered, namely, the violent nature in which the murders had been

       committed. Relying on that freestanding aggravator, the trial court ordered

       Dowdell’s two sentences for murder to be served consecutively.


[11]   Dowdell argues that the trial court erred when it ordered him to serve

       consecutive sentences after it had imposed presumptive or below-presumptive

       sentences on each count. According to Dowdell, in Marcum our supreme court

       expressly concluded that consecutive sentences in such circumstances are

       prohibited. Thus, Dowdell asserts that his appellate counsel in Dowdell II

       rendered ineffective assistance when she did not rely on Marcum to argue that

       Dowdell’s consecutive sentences should be reversed.


[12]   In Marcum, the trial court found the aggravators and mitigators to balance but

       nonetheless imposed consecutive sentences. The trial court in Marcum

       identified no other aggravators other than those found to be in balance with the

       mitigators. Our supreme court held that, “because the trial court found the

       Court of Appeals of Indiana | Opinion 49A02-1604-PC-878 | February 24, 2017   Page 8 of 11
       aggravating and mitigating circumstances to be in balance, there is no basis on

       which to impose consecutive sentences.” 725 N.E.2d at 864. Thus, in Marcum

       our supreme court remanded “with direction to impose concurrent sentences on

       all counts.” Id.


[13]   But Dowdell’s sentence is materially different from that considered by our

       supreme court in Marcum. Rather, Dowdell’s sentence is like that considered by

       this court in Gleaves v. State, 859 N.E.2d 766, 770-71 (Ind. Ct. App. 2007). In

       Gleaves, we distinguished Marcum and held:


               This court has consistently interpreted Marcum and its progeny to
               require that[,] in order to impose consecutive sentences, the trial
               court must find both at least one aggravating circumstance[] and
               that the aggravators outweigh the mitigators. Here, the trial
               court’s sentencing statement clearly met the first criterion . . . but
               Gleaves claims it did not meet the second . . . .


               When pronouncing sentence, the trial court identified Gleaves’s
               criminal history as an aggravator[] but found it to be of “middle
               or medium weight.” Transcript at 542. The court identified two
               mitigators, Gleaves’s young age and his remorse. The court
               found the aggravators and mitigators to be “very equal in their
               weight.” Id. at 544. Thus, the court imposed the presumptive
               sentence for each conviction.


               At that point, the court turned its attention to the issue of
               consecutive sentences, making the following comments and
               observations:


                        Now, here the Court also needs to consider
                        concurrent and consecutive sentencing. And I
                        think, frankly, the facts of this case make that
       Court of Appeals of Indiana | Opinion 49A02-1604-PC-878 | February 24, 2017   Page 9 of 11
                        decision very easy. And that is what I referred to
                        earlier, that the circumstances of your crime were
                        that you shot Kyle Harris. He retreated. And you
                        then shot at Laramie Dudley.


                        And so not only are those two very separate and
                        distinct acts at separate times, but, also, we have
                        two different victims here. And because of that, I
                        believe that Count I and Count II should be
                        consecutive to each other.


               Id. at 544-45. We interpret the foregoing comments to constitute
               the finding of an additional aggravating circumstance, i.e.,
               multiple victims, over and above the ones already identified by
               the trial court in its previous comments. As the aggravators and
               mitigators were found to be in equipoise without it, it is an
               exercise in simple logic to conclude that the aggravating
               circumstances preponderate with the addition of this factor.


               Our Supreme Court has indicated multiple victims is an
               aggravating circumstance that supports the imposition of
               consecutive sentences . . . . The multiple-victim aggravator
               tipped the balance such that the aggravators outweighed the
               mitigators[] and also justified the imposition of consecutive
               sentences.


       Id. at 771 (citation omitted; emphasis in original).


[14]   The same sequence of events happened here when the trial court resentenced

       Dowdell. The court initially identified several aggravators and mitigators,

       which the court then found to be in equipoise. The court then separately found

       an additional aggravator, the violent nature of the murders, which the court had

       not yet considered and on which the court relied to impose consecutive
       Court of Appeals of Indiana | Opinion 49A02-1604-PC-878 | February 24, 2017   Page 10 of 11
       sentences. There is no question that the trial court’s reliance on the violent

       nature of the offenses was a valid “nature and circumstances of the crime”

       aggravator. See Ind. Code § 35-38-1-7.1(a)(2) (1995). As “an exercise in simple

       logic,” it is clear that the additional aggravator “tipped the balance such that the

       aggravators” in total “outweighed the mitigators[] and also justified the

       imposition of consecutive sentences.” Id.


[15]   Accordingly, had Dowdell’s appellate counsel in Dowdell II argued against the

       imposition of consecutive sentences under Marcum, the argument would have

       failed. In the language of Strickland, Dowdell’s appellate counsel did not render

       deficient performance, and her performance caused no prejudice to Dowdell.

       Thus, we agree with the post-conviction court that Dowdell has not

       demonstrated that he received ineffective assistance from his appellate counsel.

       We affirm the post-conviction court’s denial of Dowdell’s successive petition

       for post-conviction relief.


[16]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1604-PC-878 | February 24, 2017   Page 11 of 11
