      MEMORANDUM DECISION                                                         FILED
      Pursuant to Ind. Appellate Rule 65(D), this                            Apr 13 2018, 8:52 am
      Memorandum Decision shall not be regarded as                                CLERK
      precedent or cited before any court except for the                      Indiana Supreme Court
                                                                                 Court of Appeals
      purpose of establishing the defense of res judicata,                         and Tax Court

      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

      Jonathan O. Chenoweth                                     Michael Gene Worden
      Deputy Public Defender                                    Deputy Attorney General
      Indianapolis, Indiana                                     Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Matthew Dante Bennett,                                    April 13, 2018

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                18A02-1711-PC-2589
              v.                                                Appeal from the Delaware Circuit
                                                                Court.
                                                                The Honorable John M. Feick,
      State of Indiana,                                         Judge.
      Appellee-Respondent.                                      Trial Court Cause No.
                                                                18C04-1405-PC-1




      Sharpnack, Senior Judge


                                       Statement of the Case
[1]   Matthew Dante Bennett appeals the post-conviction court’s denial of his

      petition for post-conviction relief. We affirm.



      Court of Appeals of Indiana | Memorandum Decision 18A02-1711-PC-2589 | April 13, 2018           Page 1 of 14
                                                     Issues
[2]   Bennett raises two issues, which we restate as:

              I.       Did the post-conviction court err in rejecting his claim of
                       ineffective assistance of trial counsel.
              II.      Did the post-conviction court err in rejecting his claim of
                       ineffective assistance of appellate counsel.

                               Facts and Procedural History
[3]   The facts, as taken from the decision in Bennett’s direct appeal, are as follows:

              On August 4, 2011, Doroteo Chavez and Abel Trejo stopped at a
              gas station in Muncie where they encountered a woman named
              Spring Miller. They arranged to meet Spring later that night so
              that Spring could dance for them. Spring subsequently met up
              with her husband Robert Miller and Bennett. Robert and
              Bennett informed Spring that they planned to accompany Spring
              to her meeting with Chavez and Trejo so that they could rob
              them. Spring did not wish to participate in the robbery, but
              because Bennett was armed with a handgun and threatened to
              hurt her children, she agreed to assist the two men.
              Spring texted Chavez and Trejo and asked them to come pick her
              up at an apartment. When they arrived, Spring went outside to
              meet them while Robert and Bennett went to the alley behind the
              apartment building. Spring got in a vehicle with Chavez and
              Trejo and directed them to drive a very short distance to an
              address on Celia Avenue where there was a house set back from
              the road. After arriving at the house, Spring led the men out of
              the vehicle and to the porch of the house. It was so dark outside
              that Spring used the light on her cell phone to help see where
              they were going. As they were walking up the steps onto the
              porch, Spring heard sticks breaking “like somebody walking . . .
              coming real fast.” Tr. at 350. Spring then heard a “big woosh”
              and a “big crunch” as Robert struck Trejo in the head with a
              baseball bat. Id. at 350-51. Trejo immediately fell to the ground

      Court of Appeals of Indiana | Memorandum Decision 18A02-1711-PC-2589 | April 13, 2018   Page 2 of 14
              twitching and gasping for air. Spring then saw Bennett wrestling
              with Chavez on the ground. Spring heard Bennett order Chavez
              to stay on the ground. Robert and Bennett began searching
              Trejo’s and Chavez’s pockets. Trejo testified at trial that the two
              men took his wallet containing more than $400, along with
              identification cards and driver’s licenses.
              Spring ran from the scene. A few minutes later, as she was
              walking on Jackson Street, Robert pulled up next to her driving
              the vehicle that Chavez and Trejo had been driving earlier.
              Bennett was in the passenger seat. The men ordered Spring to
              get into the vehicle. Spring complied because Bennett was still
              armed with the handgun. Meanwhile, Chavez and Trejo
              managed to get to a nearby fast food restaurant and contacted
              police to report the robbery. Officer Ron Miller of the Muncie
              Police Department responded to the scene. When he arrived, he
              observed that both Chavez and Trejo appeared to have suffered
              head injuries and their faces were bloody. Trejo was lapsing in
              and out of consciousness and, due to his injuries, was unable to
              communicate with Officer Miller. Officer Miller summoned an
              ambulance, and the two victims were taken to Ball Memorial
              Hospital.
              The State charged Bennett with five counts: count I, class B
              felony aggravated battery [of Trejo]; count II, class C felony
              battery [of Chavez] by means of a deadly weapon; count III, class
              B felony armed robbery [of Trejo]; count IV, class B felony
              armed robbery [of Chavez]; and count V, class D felony auto
              theft. . . . The jury found Bennett guilty of class B felony
              aggravated battery [of Trejo], class B felony armed robbery [of
              Trejo], and class D felony auto theft.

      Bennett v. State, Cause No. 18A02-1306-CR-515, *2-4 (Ind. Ct. App. Jan. 21,

      2014), trans. denied.


[4]   Bennett appealed, and he continued to be represented by his trial counsel.

      Bennett argued: (1) the trial court violated his right to a speedy trial; (2) the

      Court of Appeals of Indiana | Memorandum Decision 18A02-1711-PC-2589 | April 13, 2018   Page 3 of 14
      evidence was insufficient to sustain his conviction of aggravated battery; (3) his

      convictions for aggravated battery and armed robbery violated Indiana’s

      constitutional prohibition of double jeopardy; and (4) the trial court abused its

      discretion in the course of instructing the jury. A panel of this Court affirmed

      the trial court’s judgment.


[5]   This case began when Bennett filed a petition for post-conviction relief. The

      post-conviction court held an evidentiary hearing and issued findings of fact,

      conclusions of law, and judgment in favor of the State. This appeal followed.


                                   Discussion and Decision
[6]   The petitioner in a post-conviction proceeding bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Campbell v. State, 19

      N.E.3d 271, 273-74 (Ind. 2014). When appealing the denial of post-conviction

      relief, the petitioner stands in the position of one appealing from a negative

      judgment. Id. at 274. 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. Hollowell v. State, 19 N.E.3d 263, 269 (Ind. 2014).


[7]   The post-conviction court made findings of fact and conclusions of law in

      accordance with Indiana Post-Conviction Rule 1(6). We do not defer to a post-

      conviction court’s legal conclusions, but “‘[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.’”

      Court of Appeals of Indiana | Memorandum Decision 18A02-1711-PC-2589 | April 13, 2018   Page 4 of 14
      Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013) (quoting Ben-Yisrayl v. State,

      729 N.E.2d 102, 106 (Ind. 2000) (quotation omitted)).


[8]   Bennett argues the post-conviction court erred by rejecting his claims of

      ineffective assistance of trial and appellate counsel. The Indiana Supreme

      Court has stated:

              To establish a post-conviction claim alleging violation of the
              Sixth Amendment right to effective assistance of counsel, a
              defendant must establish the two components set forth in
              Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
              2d 674 (1984). First, a defendant must show that counsel’s
              performance was deficient. This requires a showing that
              counsel’s representation fell below an objective standard of
              reasonableness and that counsel made errors so serious that
              counsel was not functioning as ‘counsel’ guaranteed to the
              defendant by the Sixth Amendment. Second, a defendant must
              show that the deficient performance prejudiced the defense. This
              requires a showing that counsel’s errors were so serious as to
              deprive the defendant of a fair trial, meaning a trial whose result
              is reliable. To establish prejudice, a defendant must show that
              there is a reasonable probability that, but for counsel’s
              unprofessional errors, the result of the proceeding would have
              been different. A reasonable probability is one that is sufficient
              to undermine confidence in the outcome.

      Passwater, 989 N.E.2d at 770 (citations and quotations omitted).


[9]   The standard of review for claims of ineffective assistance of appellate counsel

      is the same as for trial counsel in that the defendant must show appellate

      counsel was deficient in his or her performance and that the deficiency resulted

      in prejudice. Hollowell, 19 N.E.3d at 269. “If it is easier to dispose of an



      Court of Appeals of Indiana | Memorandum Decision 18A02-1711-PC-2589 | April 13, 2018   Page 5 of 14
       ineffectiveness claim on the ground of lack of sufficient prejudice . . . that

       course should be followed.” Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.


                                                    1. Trial Counsel
[10]   Bennett argues his trial counsel rendered ineffective assistance by failing to

       object at the sentencing hearing. Specifically, he claims counsel should have

       argued to the sentencing court that his convictions of robbery and aggravated

       battery violated his statutory and common law protections against double

       jeopardy. Bennett concedes that a claim that his trial counsel should have

       raised a double jeopardy claim under the Indiana Constitution would be barred

       by res judicata. Reply Br. p. 5. The State argues that Bennett’s other double

       jeopardy claims are also barred by res judicata. We disagree and consider the
                                                                                  1
       merits of Bennett’s statutory and common law claims.


[11]   When a petitioner contends that counsel was ineffective for failing to object, to

       show prejudice petitioner must prove that the court would have sustained the

       objection. Passwater, 989 N.E.2d at 770. Absent such a showing, the petitioner

       cannot establish the prejudice component of the Strickland test. Id.


[12]   The Indiana General Assembly has enacted a statute pertaining to double

       jeopardy, which provides:

                  Whenever:




       1
           Bennett is not raising a claim under the Double Jeopardy Clause of the United States Constitution.


       Court of Appeals of Indiana | Memorandum Decision 18A02-1711-PC-2589 | April 13, 2018              Page 6 of 14
               (1) a defendant is charged with an offense and an included
               offense in separate counts; and
               (2) the defendant is found guilty of both counts;
               judgment and sentence may not be entered against the defendant
               for the included offense.

       Ind. Code § 35-38-1-6 (1983).


[13]   An “included offense” is defined, in relevant part, as an offense that is

       established by proof of the same material elements or less than all the material

       elements required to establish the commission of the offense charged. Ind.

       Code § 35-31.5-2-168 (2012). If each offense is established by proof of an

       element not contained in the other, then Indiana Code section 35-38-1-6 does

       not preclude conviction and sentence for both offenses. Ingram v. State, 718

       N.E.2d 379, 381 (Ind. 1999).


[14]   A defendant commits aggravated battery when he or she (1) knowingly or

       intentionally (2) inflicts injury on a person (3) that creates a substantial risk of

       death. Ind. Code § 35-42-2-1.5 (2014). Count one, the charge of aggravated

       battery of Trejo, tracks the statutory language. A defendant commits armed

       robbery when he or she (1) knowingly or intentionally (2) takes property from

       another person or from the presence of another person (3) by using or

       threatening the use of force or by putting any person in fear (4) while armed

       with a deadly weapon or causing bodily injury to another person. Ind. Code §

       35-42-5-1 (2014). Count three, the charge of armed robbery of Trejo, tracks the

       statutory language and specifies that Bennett committed the offense while

       armed with a deadly weapon.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1711-PC-2589 | April 13, 2018   Page 7 of 14
[15]   Bennett argues that his convictions for aggravated battery of Trejo and armed

       robbery of Trejo as charged violate Indiana Code section 35-38-1-6 because he

       claims the same force, Robert hitting Trejo in the head with a baseball bat, was

       used to accomplish both crimes. We disagree. Bennett did not touch or speak

       with Trejo during the attack, and we must conclude he was liable for the crimes
                                                              2
       against Trejo as Robert’s accomplice. Robert struck Trejo with the bat,

       committing aggravated battery. Bennett, who had a handgun, assisted Robert

       by wrestling with Trejo’s companion, Chavez, and ordering him to stay down

       while Robert took Trejo’s wallet, committing armed robbery. We agree with

       the post-conviction court that Bennett’s separate use of force against Chavez

       while assisting Robert established separate factual bases for the offenses, and

       there is no violation of the included offense statute. See Smith v. State, 881

       N.E.2d 1040, 1047 (Ind. Ct. App. 2008) (convictions of robbery and

       confinement did not violate Indiana Code section 35-38-1-6; State provided

       evidence of force used to commit confinement that was separate from force

       used to commit robbery).


[16]   Next, Bennett argues his convictions for aggravated battery and armed robbery

       violate Indiana’s common-law rules against double jeopardy. Indiana courts

       have “long adhered to a series of rules of statutory construction and common

       law that are often described as double jeopardy, but are not governed” by the




       2
           The trial court instructed the jury on aiding, inducing, or causing an offense. Trial Tr. Vol. 2, p. 484.


       Court of Appeals of Indiana | Memorandum Decision 18A02-1711-PC-2589 | April 13, 2018                  Page 8 of 14
       Indiana Double Jeopardy Clause. Pierce v. State, 761 N.E.2d 826, 830 (Ind.

       2002). Among other principles, Indiana courts prohibit “conviction and

       punishment for a crime which consists of the very same act as an element of

       another crime for which the defendant has been convicted and punished.”

       Richardson v. State, 717 N.E.2d 32, 55 (Ind. 1999) (Sullivan, J., concurring).

       This common law rule is not violated where “the subject behavior or harm is

       either separate from or more extensive than that necessary to constitute the

       element of the first crime.” Id.


[17]   Robert’s act of hitting Trejo in the head with the baseball bat established the

       force necessary to commit aggravated battery and convict Bennett as an

       accomplice. Bennett assisted Robert in robbing Trejo by wrestling Chavez to

       the ground and ordering him to stay there while armed with a handgun, thus

       establishing separate factual elements for armed robbery. Bennett argues the

       jury likely considered the same act of violence (hitting Trejo with the bat) as the

       force used in both offenses because the jury did not convict him of battering or

       robbing Chavez. He reasons the jury must have disregarded any force he used

       against Chavez. Speculating as to the jury’s reasoning is difficult, but we note

       Trejo testified at Bennett’s trial while Chavez did not. The jury’s not guilty

       verdicts as to offenses against Chavez could have reasonably been based on

       Chavez’s failure to appear as much as any doubt that Bennett committed the

       acts against Chavez that Spring described at trial. Bennett’s common law

       double jeopardy claim must fail.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1711-PC-2589 | April 13, 2018   Page 9 of 14
[18]   We have determined Bennett cannot prevail on his statutory and common law

       claims. As a result, Bennett was not prejudiced by his trial counsel’s failure to

       object, because counsel is not required to raise an objection that would have

       failed. If trial counsel had objected to Bennett’s sentence on those grounds, the

       outcome would not have been different, and the post-conviction court did not

       err in rejecting Bennett’s claims of ineffective assistance of trial counsel.


                                           2. Appellate Counsel
[19]   Bennett argues his appellate counsel rendered ineffective assistance by: (1)

       failing to raise double jeopardy claims under Indiana’s included offense statute

       and common law; and (2) failing to effectively present a claim of double

       jeopardy under the Indiana Constitution. We have determined that Bennett’s

       claims under the Indiana included offense statute and Indiana common law

       must fail. Appellate counsel will not be deemed ineffective for “failing to

       present meritless claims.” Vaughn v. State, 559 N.E.2d 610, 615 (Ind. 1990).

       That leaves Bennett’s claim under the Indiana Double Jeopardy clause.


[20]   The State argues Bennett’s Indiana double jeopardy claim is barred by res

       judicata, claiming the Indiana constitutional double jeopardy issue was resolved

       on direct appeal and should not be addressed again. We disagree. In Harris v.

       State, our Supreme Court stated that when a petitioner raises a claim of

       ineffective assistance of appellate counsel for inadequately presenting an issue,

       the underlying issue must be “re-adjudicated” and is not barred by res judicata.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1711-PC-2589 | April 13, 2018   Page 10 of 14
       861 N.E.2d 1182, 1186 (Ind. 2007). “In short, the Sixth Amendment right to

       counsel trumps the state law res judicata doctrine.” Id.


[21]   A claim of ineffective assistance of appellate counsel falls into one of three

       categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure

       to present issues well. Carter v. State, 929 N.E.2d 1276, 1278 (Ind. 2010).

       Claims of inadequate presentation of issues are the most difficult for petitioners

       to advance and for reviewing tribunals to support. Bieghler v. State, 690 N.E.2d

       188, 195 (Ind. 1997). This is so because “these claims essentially require the

       reviewing tribunal to re-view specific issues it has already adjudicated to

       determine whether the new record citations, case references, or arguments

       would have had any marginal effect on their previous decision,” thus

       implicating “concerns of finality, judicial economy, and repose while least

       affecting assurance of a valid conviction.” Id. Further, a “less than top notch

       performance” by appellate counsel does not necessarily prevent Indiana’s

       appellate courts from “appreciating the full measure of an appellant’s claim”

       because we commonly perform separate legal research on cases. Id. An

       ineffectiveness challenge resting on counsel’s inadequate presentation of a claim

       must overcome “the strongest presumption of adequate assistance.” Id. at 196.


[22]   Article I, section 14 of the Indiana Constitution provides, “No person shall be

       put in jeopardy twice for the same offense.” It is well established that two

       convictions violate the Indiana Double Jeopardy Clause when, “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

       Court of Appeals of Indiana | Memorandum Decision 18A02-1711-PC-2589 | April 13, 2018   Page 11 of 14
       essential elements of another challenged offense.” Richardson v. State, 717

       N.E.2d 32, 49 (Ind. 1999) (emphasis in original).


[23]   On direct appeal, Bennett’s counsel argued that Bennett’s convictions for armed

       robbery and aggravated battery violated the “actual evidence” component of the

       Richardson standard, claiming Robert’s single act of hitting Trejo with the bat

       established essential elements of both offenses. Bennett’s counsel raised Smith,

       881 N.E.2d 1040. In Smith, this Court sua sponte reversed Smith’s conviction

       for Class B felony robbery, concluding that the robbery conviction and Smith’s

       conviction for Class B felony aggravated battery violated Indiana’s Double

       Jeopardy Clause. The Court concluded the “actual evidence” test was violated

       because both offenses required proof of bodily injury, and the only injury the

       State demonstrated was that Smith struck a correctional officer twice, knocking

       teeth loose. Id. at 1048.


[24]   In Bennett’s direct appeal, the Court disregarded his discussion of the Smith

       case and ruled against him on his Indiana Double Jeopardy Clause claim.

       Bennett now argues his appellate counsel rendered ineffective assistance by

       discussing Smith rather than other cases that he claims more closely match the

       facts of his case. He claims Smith is factually distinguishable because that case

       addressed whether the same injury supported both offenses, whereas in this case

       the issue is whether the same act of violence supported both offenses.


[25]   We conclude Bennett’s claim is a distinction without a difference. On direct

       appeal, Bennett’s counsel clearly raised a claim that the same act of violence


       Court of Appeals of Indiana | Memorandum Decision 18A02-1711-PC-2589 | April 13, 2018   Page 12 of 14
       supported both offenses, and his citation to Smith provided a sufficient

       illustration of the “actual evidence” test for the Court to have found in

       Bennett’s favor if the facts had merited that result. The Court instead

       determined there were separate acts that supported each conviction, specifically

       Robert striking Trejo with a bat (battery) and Bennett wrestling with Chavez

       and ordering him to stay down while armed with a handgun, allowing Robert

       to take Trejo’s wallet (robbery).


[26]   Further, the cases Bennett claims his direct appeal counsel should have raised

       are factually distinct from his case. In Burnett v. State, 736 N.E.2d 259, 262-63

       (Ind. 2000), overruled in part on other grounds by Ludy v. State, 784 N.E.2d 459,

       462 (Ind. 2003), the Indiana Supreme Court determined convictions for Class A

       felony and Class B felony aggravated battery violated the Indiana Double

       Jeopardy Clause because there was a reasonable possibility the same act (the

       stabbing of the victim in the neck) supported elements of both offenses. Indeed,

       the State failed to present evidence of any other violent acts by defendant. In

       Richardson, 717 N.E.2d at 54, the Indiana Supreme Court determined

       convictions for Class C felony robbery and Class A misdemeanor battery

       violated the Indiana Double Jeopardy Clause because there was a reasonable

       possibility the same act (the beating of the victim while taking his money)

       supported elements of both offenses. Finally, in Troutner v. State, 951 N.E.2d

       603, 611 (Ind. Ct. App. 2011), trans. denied, the Court determined Troutner’s

       convictions for Class B felony robbery and Class A misdemeanor battery

       violated the Indiana Double Jeopardy Clause because there was a reasonable


       Court of Appeals of Indiana | Memorandum Decision 18A02-1711-PC-2589 | April 13, 2018   Page 13 of 14
       possibility the same act (the beating of the victim while taking his money)

       supported elements of both offenses. In contrast to those three cases, in

       Bennett’s case the State presented evidence of two acts of violence that

       separately supported the offenses. We cannot conclude that citing to different

       cases would have led to a different result in Bennett’s direct appeal. In the

       absence of prejudice, Bennett’s claim of ineffective assistance of appellate

       counsel must fail, and the post-conviction court did not err in rejecting it.


                                                 Conclusion
[27]   For the reasons stated above, we affirm the judgment of the trial court.


[28]   Judgment affirmed.


       Vaidik, C.J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1711-PC-2589 | April 13, 2018   Page 14 of 14
