MEMORANDUM DECISION                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                                       08/28/2017, 10:11 am

this Memorandum Decision shall not be                                              CLERK
                                                                               Indiana Supreme Court
regarded as precedent or cited before any                                         Court of Appeals
                                                                                    and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
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
J. Michael Sauer                                         Christina D. Pace
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kenneth S. Tipton,                                       August 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         47A01-1704-PC-838
        v.                                               Appeal from the Lawrence
                                                         Superior Court
State of Indiana,                                        The Honorable William G. Sleva,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         47D02-1412-PC-1564



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017            Page 1 of 13
                                Case Summary and Issue
[1]   Kenneth Tipton appeals the denial of his petition for post-conviction relief. He

      raises one issue for our review: whether the post-conviction court erred in

      concluding Tipton’s appellate counsel was not ineffective. Concluding Tipton

      did not receive ineffective assistance of appellate counsel, we affirm.



                            Facts and Procedural History
[2]   We summarized the facts and procedural history of this case in Tipton’s direct

      appeal:


              On August 16, 2009, two Bedford police officers went to Tipton’s
              house to arrest him after his wife reported a domestic battery.
              Tipton’s brother Donnie allowed the officers to enter the house,
              and he told the officers he was there alone. As one officer walked
              toward the hallway, he saw Tipton coming toward him with a
              gun. The officer yelled “gun” and both officers tried to exit
              through the front door. Tipton fired a shot while the officers were
              still in the house.

              The officers ran in different directions when they left the house,
              and they sought cover behind trucks. Tipton fired at one of the
              officers, and then retreated into the house. The other officer
              called for reinforcements. Tipton allowed his brother to leave the
              house, but then he fired another shot. After additional officers
              arrived, Tipton fired more shots, two of which hit a police car.
              Some shots hit the house across the street. The residents, Adam
              Mullis and his wife, were not home at the time.

              Police spoke to Tipton on the telephone, and Tipton agreed he
              would surrender if he were charged with only a minor offense.
              An officer at the police station wrote a letter saying Tipton would
              be charged only with criminal recklessness if he surrendered, and
              the officer read the letter to Tipton over the telephone. Tipton
              surrendered . . . .

      Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017   Page 2 of 13
      Tipton v. State, 981 N.E.2d 103, 105 (Ind. Ct. App. 2012) (citation omitted),

      trans. denied. Following his arrest, law enforcement executed a search warrant

      and discovered numerous marijuana plants, in various stages of growth, in

      Tipton’s garage. Law enforcement also found lights, a glass pipe, and a digital

      scale. The State charged Tipton with criminal recklessness, attempted murder,

      and dealing in marijuana. The State also filed an habitual offender

      enhancement. A jury acquitted Tipton of attempted murder but found him

      guilty of the other charges.


[3]   At sentencing, Tipton argued his sentence could not exceed ten years because

      the offenses were part of a single episode of criminal conduct. In response, the

      State argued that the different stages of growth exhibited by the marijuana

      plants found in Tipton’s garage demonstrated the operation was occurring prior

      to and distinct from Tipton’s criminally reckless acts. The trial court agreed the

      events were not a single episode of criminal conduct and sentenced Tipton to a

      total of twenty-three years in the Indiana Department of Correction.


[4]   Tipton appealed his convictions and sentence raising two issues on direct

      appeal: (1) whether the evidence was sufficient to support his criminal

      recklessness conviction, and (2) whether the trial court erred in not designating

      which conviction was to be enhanced by the habitual offender adjudication.

      This court affirmed Tipton’s convictions and sentence.




      Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017   Page 3 of 13
[5]   On December 4, 2014, Tipton filed a pro se petition for post-conviction relief.

      The post-conviction court held an evidentiary hearing on February 16, 2017.

      At the evidentiary hearing, Tipton introduced into evidence a signed affidavit

      from his appellate public defender verifying she failed to raise the issue that

      Tipton’s actions constituted a single episode of criminal conduct and should

      have done so. On April 12, 2017, the post-conviction court denied Tipton’s

      petition for post-conviction relief. Tipton now appeals.



                                 Discussion and Decision
                                     I. Standard of Review
[6]   Post-conviction proceedings are not an opportunity for a super-appeal.

      Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839

      (2002). Rather, they create a narrow remedy for subsequent collateral

      challenges to convictions that must be based on grounds enumerated in the

      post-conviction rules. Id. If not raised on direct appeal, a claim of ineffective

      assistance of counsel is properly presented in a post-conviction proceeding. Id.

      A claim of ineffective assistance of appellate counsel is also an appropriate issue

      for post-conviction review. Id. The petitioner must establish his claims by a

      preponderance of the evidence. Ind. Post-Conviction Rule 1(5).


[7]   A petitioner who has been denied post-conviction relief faces a “rigorous

      standard of review” on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).

      In reviewing the judgment of a post-conviction court, we may not reweigh the

      evidence nor reassess witness credibility; rather we consider only the evidence
      Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017   Page 4 of 13
      and reasonable inferences supporting the judgment. Hall v. State, 849 N.E.2d

      466, 468-69 (Ind. 2006). We will affirm the post-conviction court’s denial of

      post-conviction relief unless the evidence leads “unerringly and unmistakably to

      a decision opposite that reached by the post-conviction court.” McCary v. State,

      761 N.E.2d 389, 391 (Ind. 2002).


               II. Ineffective Assistance of Appellate Counsel
[8]   Tipton contends his appellate counsel was ineffective for failing to argue on

      direct appeal that his convictions for criminal recklessness and dealing in

      marijuana arose from an “episode of criminal conduct.” The standard of

      review for a claim of ineffective assistance of appellate counsel is the same as

      that for trial counsel. Allen v. State, 749 N.E.2d 1158, 1166 (Ind. 2001), cert.

      denied, 535 U.S. 1061 (2002).


              Therefore, [t]o prevail on an ineffective assistance of counsel
              claim, [the petitioner] must show both deficient performance and
              resulting prejudice. As for the first prong—counsel’s
              performance—we presume that counsel provided adequate
              representation. Accordingly, [c]ounsel is afforded considerable
              discretion in choosing strategy and tactics, and we will accord
              that decision deference. The second prong—the prejudicial effect
              of counsel’s conduct—requires a showing 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.


      Id. at 166-67 (citations and quotations omitted).



      Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017   Page 5 of 13
[9]    Indiana law states there are three categories of alleged appellate counsel

       ineffectiveness: 1) denying access to an appeal; 2) failing to raise an issue on

       appeal; and 3) failing to present an issue completely and effectively. Bieghler v.

       State, 690 N.E.2d 188, 193-95 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998).

       Counsel is rarely found to be ineffective when the issue is failure to raise a claim

       on direct appeal. Id. at 193. “One reason for this is that the decision of what

       issues to raise is one of the most important strategic decisions to be made by

       appellate counsel.” Id. (internal citation omitted). “Accordingly, when

       assessing these types of ineffectiveness claims, reviewing courts should be

       particularly deferential to counsel’s strategic decision to exclude certain issues

       in favor of others, unless such a decision was unquestionably unreasonable.”

       Id. at 194.


[10]   Here, Tipton first argues his appellate counsel admitted in a sworn affidavit she

       failed to raise the episode of criminal conduct issue and should have. However,

       counsel’s admission is not dispositive of the issue and we need not decide

       whether appellate counsel’s performance was deficient because Tipton has

       failed to demonstrate prejudice on his claim of ineffective assistance of appellate

       counsel. See Young v. State, 746 N.E.2d 920, 927 (Ind. 2001) (explaining that it

       was not necessary to address the allegations of deficient performance where the

       petitioner had failed to establish prejudice).


[11]   To succeed on his ineffective appellate counsel claim, “the prejudice-prong of

       Strickland requires [Tipton] to demonstrate a reasonable probability that, but for

       his counsel’s errors, the result of his direct appeal would have been different.”

       Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017   Page 6 of 13
       Martin v. State, 760 N.E.2d 597, 600 (Ind. 2002) (citing Strickland, 466 U.S. 668,

       694 (1984)). Thus, to show prejudice on his ineffective appellate counsel claim

       regarding counsel’s failure to raise the sentencing issue, Tipton is required to

       show that but for his appellate counsel’s failure to raise the issue, this court

       would have reversed the trial court’s twenty-three-year sentence for failing to

       comply with Indiana Code section 35-50-1-2(b) and (c).


[12]   Tipton has not shown there is a reasonable probability the result of his direct

       appeal would have been different had his appellate counsel raised the episode of

       criminal conduct issue. Indiana Code section 35-50-1-2(b) (2009) states, an

       “‘episode of criminal conduct’ means offenses or a connected series of offenses

       that are closely related in time, place, and circumstance.” Subsection (c) states,


               the total of the consecutive terms of imprisonment . . . 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.


       Ind. Code § 35-50-1-2(c) (2009). Because the highest felony for which Tipton

       was convicted was a Class C felony, he argues his sentence should have been

       capped at ten years, the advisory sentence for a Class B felony. See Ind. Code §

       35-50-2-5 (2005).


[13]   In support of his argument that his convictions were the result of an episode of

       criminal conduct, Tipton cites to four cases. In Johnican v. State, 804 N.E.2d

       211 (Ind. Ct. App. 2004), the defendant pointed a gun at police officers
       Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017   Page 7 of 13
       attempting to stop him for an outstanding warrant, fled, and was eventually

       shot by an officer. Officers found cocaine on the defendant after arresting him.

       The defendant was convicted of possession of cocaine, pointing a firearm, and

       resisting law enforcement. The court concluded the offenses were part of an

       episode of criminal conduct, holding that when “a defendant possesses

       contraband on his person as he simultaneously commits other criminal offenses,

       the offenses should be deemed part of a single episode of criminal conduct.” Id.

       at 218.


[14]   In Haggard v. State, 810 N.E.2d 751 (Ind. Ct. App. 2004), the police responded

       to a report that the defendant had injected drugs and was threatening to kill

       himself. The police entered the house where the defendant was reported to be

       and discovered him in the basement. The police noticed that an empty syringe

       was on a table next to Haggard and that Haggard had a makeshift tourniquet

       tied around his arm. As they approached him, the police noticed that Haggard

       had a gun. As Haggard began to raise the gun, he fell backwards, appeared to

       have a seizure, and fell asleep. Haggard was arrested. When the police

       recovered Haggard’s shirt from the hospital, they discovered that body armor

       had been sewn into it. Haggard was ultimately convicted of possession of

       cocaine, battery by body waste, resisting law enforcement, battery resulting in

       bodily injury, and unlawful use of body armor. The trial court sentenced

       Haggard to three years on each of the five convictions, four of which were

       ordered to run concurrently, but the sentence for the unlawful use of body

       armor conviction was ordered to run consecutively to the other sentences, for


       Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017   Page 8 of 13
       an aggregate sentence of six years. On direct appeal, Haggard’s convictions and

       sentence were affirmed. Haggard v. State, 771 N.E.2d 668, 677 (Ind. Ct. App.

       2002), trans. denied.


[15]   Haggard then filed a petition for post-conviction relief, arguing that his

       appellate counsel was ineffective for failing to argue his actions were an episode

       of criminal conduct. On appeal, the State conceded Haggard’s criminal acts

       constituted an episode of criminal conduct. Noting that had Haggard not

       attempted to commit suicide by the use of cocaine, the police would never have

       been called and that Haggard’s drug use precipitated his violent resistance, this

       court agreed with Haggard and the State that his acts were an episode of

       criminal conduct and his appellate counsel was ineffective for failing to present

       that issue. 810 N.E.2d at 756-57. We remanded the cause with instructions to

       enter a sentence which conformed with the statute.


[16]   In Massey v. State, 816 N.E.2d 979 (Ind. Ct. App. 2004), the police executed a

       search warrant and saw the defendant leaving the house. When the defendant

       saw the police, he attempted to flee but was captured. When caught, the

       defendant was in possession of cocaine and a key to a vending machine which

       contained more cocaine and marijuana. In the garage was additional

       marijuana in plain view. The police also found hydrocodone, cash, additional

       cocaine, and two handguns in the defendant’s bedroom. The defendant was

       convicted of dealing in cocaine, possession of cocaine and a firearm, unlawful

       possession of a firearm by a serious violent felon, possession of a controlled

       substance, and possession of marijuana. The trial court merged the possession

       Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017   Page 9 of 13
       of cocaine conviction and the dealing in cocaine conviction, sentencing Massey

       to fifty years for dealing in cocaine, eight years for possession of cocaine and a

       firearm, twenty years for possession of a firearm by a serious violent felon, three

       years for possession of a controlled substance, and three years for possession of

       marijuana. The trial court ordered the fifty-year sentence to be served

       consecutively to the twenty-year sentence and ordered the remaining three

       sentences to be concurrent with one another and the other two sentences.


[17]   On appeal, the defendant argued his aggregate seventy-year sentence violated

       Indiana Code section 35-50-1-2(c) in that his convictions resulted from one

       episode of criminal conduct. This court agreed, noting he was a serious violent

       felon in possession of a handgun and simultaneously in possession of an

       amount of cocaine large enough that his intent to deal could be inferred.

       Therefore, the court concluded the defendant’s convictions “arose from a single

       episode of criminal conduct.” Id. at 991.


[18]   Finally, Tipton cites to Cole v. State, 850 N.E.2d 417, 423 (Ind. Ct. App. 2006).

       In that case, police officers spotted the defendant and attempted to conduct a

       traffic stop because he had an outstanding warrant for being an habitual traffic

       offender. However, the defendant fled in his vehicle and led the police on a

       half-hour chase. Once the defendant was apprehended, police discovered a

       tank containing anhydrous ammonia in his vehicle which he planned to use in

       the manufacture of methamphetamine. The defendant pleaded guilty to

       resisting law enforcement, possession of chemical reagents or precursors with

       intent to manufacture methamphetamine, and being an habitual offender. This

       Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017   Page 10 of 13
       court concluded the defendant’s convictions arose from an episode of criminal

       conduct, and, therefore, his consecutive sentence required reduction because it

       exceeded the maximum consecutive sentence permitted by Indiana Code

       section 35-50-1-2. Id. at 423.


[19]   Notwithstanding these cases, Tipton has failed to demonstrate a reasonable

       probability the result of his direct appeal would have been different if the issue

       had been raised. In our most recent case that would have been available to

       Tipton on direct appeal, Deshazier v. State, 877 N.E.2d 200, 204 (Ind. Ct. App.

       2007), trans. denied, the defendant was convicted of carrying a handgun with a

       prior felony, two counts of resisting law enforcement, and possession of

       marijuana. During a traffic stop, police officers discovered the defendant had a

       firearm. The defendant then fled from the police and the police found

       marijuana in the defendant’s jacket he left at the scene. After noting this court’s

       split of authority and our supreme court’s emphasis on the “simultaneous” and

       “contemporaneous” timing of the offenses, we stated that “no evidence exists as

       to when [the defendant] came into possession of the handgun or marijuana.

       Possession is inherently a ‘continuing offense,’ which occurs from the time the

       defendant comes into possession of the contraband until the time he

       relinquishes control.” Id. at 212. Therefore, we held the possession offenses

       were not part of an episode of criminal conduct with the defendant’s offenses of

       resisting law enforcement. Id.


[20]   Here, law enforcement arrived at Tipton’s house in response to a call

       concerning domestic violence and Tipton began firing gunshots, giving rise to

       Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017   Page 11 of 13
       his criminal recklessness conviction. Following his arrest, the police then

       executed a search warrant and discovered a marijuana growing operation.

       There is no nexus, other than the fact police discovered the marijuana operation

       as a result of his arrest, connecting Tipton’s act of criminal recklessness and his

       subsequent conviction of dealing marijuana. See Akers v. State, 963 N.E.2d 615,

       619-20 (Ind. Ct. App. 2012) (noting, unlike Johnican and Cole, the defendant’s

       possession of paraphernalia was related neither chronologically nor in

       circumstance to his convictions for battery and resisting arrest), trans. denied.

       Finally, we note the State presented evidence at sentencing of marijuana plants

       in various stages of growth, a clear indication Tipton had been growing

       marijuana for some time—a crime which was occurring prior to and distinct

       from his crime of criminal recklessness. Under these circumstances and like in

       Deshazier, Tipton’s convictions were not part of an episode of criminal conduct.


[21]   Because Tipton has failed to demonstrate a reasonable probability the result of

       his direct appeal would have been different, we cannot say he received

       ineffective assistance of appellate counsel.



                                               Conclusion
[22]   Tipton has failed to demonstrate a reasonable probability the result of his direct

       appeal would have been different had appellate counsel raised the issue of his

       convictions being an episode of criminal conduct. Accordingly, we affirm the

       denial of his petition for post-conviction relief.



       Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017   Page 12 of 13
[23]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 47A01-1704-PC-838 | August 28, 2017   Page 13 of 13
