Pursuant to Ind.Appellate Rule 65(D), this

                                                           FILED
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of                         Oct 04 2012, 9:17 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
                                                                CLERK
                                                              of the supreme court,
                                                              court of appeals and
                                                                     tax court




APPELLANT PRO SE:                                ATTORNEYS FOR APPELLEE:

RONALD A. BOHANNON                               GREGORY F. ZOELLER
Bunker Hill, Indiana                             Attorney General of Indiana

                                                 MICHAEL GENE WORDEN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

RONALD A. BOHANNON,                              )
                                                 )
       Appellant-Petitioner,                     )
                                                 )
              vs.                                )       No. 28A01-1203-CR-115
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Respondent.                      )


                     APPEAL FROM THE GREENE CIRCUIT COURT
                      The Honorable Gregory A. Smith, Special Judge
                             Cause No. 28C01-1109-PC-38


                                      October 4, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                               STATEMENT OF THE CASE

       Appellant-Petitioner, Ronald A. Bohannon (Bohannon), appeals the post-

conviction court’s order regarding his petition for post-conviction relief.

       We affirm.

                                          ISSUES

       Bohannon raises four issues on appeal, three of which we find dispositive and

which we restate as follows:

       (1) Whether the post-conviction court erred in denying his claim that his sentence

          violated federal and state constitutional prohibitions against double jeopardy;

       (2) Whether the post-conviction court erred in denying his claim that the State

          violated Ind. Code § 35-34-1-5(e) when it filed his habitual offender charge

          past the omnibus date; and

       (3) Whether the post-conviction court erred in denying his claim that his trial

          counsel provided ineffective assistance.

                        FACTS AND PROCEDURAL HISTORY

       On August 16, 2009, George Dallaire (Officer Dallaire), a Detective with the

Greene County Sheriff’s Department, received a dispatch concerning a shooting in

Greene County. After learning that the victim, T.B., had been admitted to the Greene

County General Hospital and was there along with his father, Officer Dallaire proceeded

to the hospital to investigate. By the time Officer Dallaire arrived at the hospital, T.B.

had passed away from his injuries. Officer Dallaire nevertheless examined T.B.’s body
                                              2
and discovered that he was a fourteen month old male infant who had received a gunshot

wound to his head. Based on partially burned and unburned gunpowder around the

wound, Officer Dallaire estimated that the gun had been discharged from within a

distance of four or five feet.

       After examining T.B., Officer Dallaire spoke with T.B.’s father, Bohannon, who

had been pushing T.B. in a stroller when he was shot. Bohannon told the Officer that he

had taken his children, S.B. and T.B., for a walk when he heard a “pop” near an old

abandoned house on the road. (Transcript p. 26). A second later, Bohannon noticed that

T.B. had been injured. Officer Dallaire asked Bohannon who he thought might be

responsible and Bohannon told him that he had recently been involved in an altercation

with his wife, Jamie Bohannon’s, ex-husband, Carl Finley (Finley), who had threatened

that he would “take care of [him.]” (Tr. p. 26). In a separate interview, Tanya Salesman

(Salesman), a woman who lived with Bohannon, also indicated that she believed Finley

was responsible. Later that night, Officer Dallaire interviewed S.B., who told the Officer

that he “thought the pop came from the gun that daddy had in his pants.” (Tr. p. 30).

This declaration contradicted previous claims by Bohannon and Salesman that although

they owned and kept a shotgun in their closet, they did not own any handguns.

       Meanwhile, a crime scene investigator collected Bohannon’s clothes from the

hospital to swab for gunpowder, and a detective swabbed Bohannon’s hands. As his

hands were being swabbed, Bohannon told the detective that he had gotten his shotgun

from the closet after T.B.’s shooting, lain down in a military position, and fired one shot

                                            3
before putting the shotgun back in the closet. However, Officer Dallaire examined the

shotgun and determined that it had not been fired in at least a month or more because its

barrel was full of cobwebs and dust.

       Two days later, Officer Dallaire interviewed Finley and discovered that he had an

alibi for the time of the shooting. Officer Dallaire brought Bohannon and Salesman in for

further questioning, but Bohannon’s story remained essentially the same. When Officer

Dallaire confronted Bohannon with the evidence that his shotgun had not been used

recently, Bohannon maintained that he had fired it the night of T.B.’s shooting.

       On August 18, 2009, Bohannon was arrested on unrelated charges. While in

custody, he admitted to the detectives that he had accidentally shot T.B. He told them

that he had tucked a .38 caliber revolver into his belt prior to his walk with his sons and

cocked the gun when he heard a noise on the walk. Then, when he heard more noises he

pulled the gun out from behind his back, placed his fingers on the trigger and hammer,

and placed the gun on the stroller handles. At that point, the gun accidentally discharged

and struck T.B. in the head.

       During the same interview, Bohannon admitted that in addition to the revolver, he

also owned a .45 caliber semi-automatic handgun. When Officer Dallaire asked him

where both handguns were, Bohannon replied that the semi-automatic handgun should

still be in the house, but that he thought Salesman had thrown the revolver in a field

behind the house. According to Bohannon, he had purchased the revolver from a person



                                            4
in Terre Haute whom he knew dealt in stolen guns. He further admitted that he and

Salesman had agreed to blame Finley for the shooting.

       Subsequently, the detectives searched the field behind Bohannon’s house and

found the revolver, but could not find Bohannon’s other handgun. They discovered that

the revolver had been stolen from a residence in Clay County in June of 2009 and that

witnesses had seen Salesman’s car at the scene of the burglary. They also learned that

Bohannon was not licensed to carry a handgun.

       On August 20, 2009, the State filed an Information charging Bohannon with six

Counts, including Count I, reckless homicide, a Class C felony; Count III, possession of a

handgun without a license, a Class A misdemeanor; Count IIIA, an enhancement of

Count III to a Class C felony based on prior felony convictions; and Count IV, receiving

stolen property, a Class D felony.1 At Bohannon’s initial hearing, the trial court set a trial

date for January 26, 2010 and an omnibus date of October 12, 2009. Subsequently, on

November 18, 2009, the State filed an additional Information charging Bohannon with

being an habitual offender, Ind. Code § 35-50-2-8. One month later, on December 18,

2009, Bohannon pled guilty to Counts I, III, IIIA, IV, and to being an habitual offender.

In exchange, the State dismissed the remaining charges and left Bohannon’s sentence to

the trial court’s discretion.     On January 29, 2010, the trial court accepted the plea

agreement and entered a judgment of conviction on the charges.


1
 As Bohannon has not provided us with a copy of his charging Information, we do not know what
offenses he was charged with in Counts II, V and VI.

                                                 5
        That same day, the trial court held a sentencing hearing and sentenced Bohannon

to eight years on Count I; seven years on Counts III and IIIA; two years on Count IV, and

five years for being an habitual offender. The trial court ordered that the sentences for

Counts I, III, and IIIA should be served consecutively, with the sentence for Count IV

served concurrently to Counts III and IIIA, and the sentence for being an habitual

offender served consecutively to all of the sentences.2 Bohannon did not file a timely

appeal.

        On September 16, 2011, Bohannon filed a petition for post-conviction relief in

which he alleged that (1) the trial court had erred by adding a double enhancement to his

sentence for possessing a handgun without a license; (2) his trial counsel’s assistance had

been ineffective; (3) the trial court had been biased and prejudiced; (4) his sentence was

erroneous under I.C. § 35-38-1-15; (5) his sentence violated double jeopardy

prohibitions; and (6) the State had erred by filing his habitual offender charge after the

omnibus date.       On January 13, 2012, the post-conviction court held an evidentiary

hearing, and on February 8, 2012, the post-conviction court granted Bohannon’s claim

with respect to his double sentence enhancement, but denied the remaining claims.

        The next day, on February 9, 2012, the trial court entered a corrected sentencing

order in which it sentenced Bohannon to eight years on Count I; seven years on Counts

2
 The trial court did not attach Bohannon’s habitual offender charge to any particular Count. The post-
conviction court recognized this error, stating “[i]n addition, a habitual felony offender [C]ount is an
enhancement of a sentence and does not run consecutive to any sentence imposed on the underlying
crime(s). It merely enhances one and only one of the underlying offences.” (Appellant’s Br. p. 14).
Therefore, the post-conviction court interpreted the charge as attached to Count III.

                                                     6
III and IIIA, to be served consecutively to Count I; two years on Count IV, to be served

concurrently with Counts I and IIIA; and five years for being an habitual offender,

attached to Count I. In aggregate, Bohannon’s sentence totaled twenty years.

       Bohannon now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

       On appeal from the denial of post-conviction relief, a petitioner stands in the

position of one appealing from a negative judgment. Mauricio v. State, 941 N.E.2d 497,

498 (Ind. 2011). In such a case, a petitioner must show that the evidence, taken as a

whole, leads unerringly and unmistakably to a conclusion opposite that reached by the

trial court. Id. We do not defer to the trial court’s legal conclusions, but we will reverse

only on a showing of clear error. Id. Moreover, this court will only consider the

probative evidence and all reasonable inferences therefrom that support the post-

conviction court’s determination and will not reweigh the evidence. Bigler v. State, 732

N.E.2d 191, 194 (Ind. Ct. App. 2000), trans. denied.

                                   II. Double Jeopardy

       First, Bohannon argues that the State violated federal and state prohibitions against

double jeopardy when it charged him with possessing the same handgun without a license

in both Counts III and IIIA. Bohannon’s sentence on Count III, possession of a handgun

without a license, a Class A misdemeanor, was enhanced by Count IIIA to a Class C

felony based on three prior felony convictions. Our supreme court has held that:

       Prohibitions against double jeopardy protect against: (1) reprosecution for
       an offense after a defendant has already been convicted of the same offense
                                             7
       in a previous prosecution; (2) reprosecution of a defendant after an
       acquittal; (3) multiple punishments for the same offense in a single trial; (4)
       reprosecution of a defendant after the conviction has been reversed for
       insufficient evidence; (5) criminal reprosecution of a defendant in limited
       circumstances following a previous civil prosecution; [and] (6)
       reprosecution of a defendant in limited circumstances after a mistrial has
       been declared.

Richardson v. State, 717 N.E.2d 32, 37 n.3 (Ind. 1999). Whether convictions violate

double jeopardy is a pure question of law, which we review de novo. Rexroat v. State,

966 N.E.2d 165, 168 (Ind. Ct. App. 2012), trans. denied.

       Bohannon has not provided us with his charging Information, but we presume that

he was charged under I.C. § 35-47-2-1, which prohibits carrying a handgun “in any

vehicle or on or about the person’s body without being licensed,” subject to certain

exceptions. Pursuant to I.C. § 35-47-2-23(c), the offense is a Class C felony if the person

has been convicted of a felony within the previous 15 years. Regardless of the statutory

authority for Bohannon’s charges, however, we will not address his argument that he has

suffered from double jeopardy because it is clear that he has waived any such claims. It

is a well-established rule that a defendant who enters a plea agreement to achieve an

advantageous position must keep the bargain. Games v. State, 743 N.E.2d 1132, 1135

(Ind. 2001). Id. “[D]efendants who plead guilty to achieve favorable outcomes give up a

plethora of substantive claims and procedural rights, such as challenges to convictions

that would otherwise constitute double jeopardy.” State v. Parham, 913 N.E.2d 770,

772-73 (Ind. Ct. App. 2009), trans. denied. This is because “retaining a benefit while

relieving oneself of the burden of the plea agreement ‘would operate as a fraud upon the

                                             8
court.’” Games, 743 N.E.2d at 1135. Accordingly, Bohannon has waived his double

jeopardy claim, and we will not address it any further.

                              III. Habitual Offender Charge

       Next, Bohannon argues that the State violated I.C. § 35-34-1-5(e) when it filed his

habitual offender charge 37 days past the omnibus date of October 12, 2009. I.C. § 35-

34-1-5(e) provides that “[a]n amendment of an indictment or [I]nformation to include a

habitual offender charge under [I.C. §] 35-50-2-8, [I.C. §] 35-50-2-8.5, or [I.C. §] 35-50-

2-10 must be made not later than ten (10) days after the omnibus date. However, upon a

showing of good cause, the court may permit the filing of a habitual offender charge at

any time before the commencement of trial.” Here, the trial court set an omnibus date of

October 12, 2009, and the State filed the habitual offender charge on November 18, 2009.

One month later, on December 18, 2009, Bohannon admitted the habitual offender

charge, while pleading guilty to the other charges. There is no evidence in the record that

the State made a showing of good cause for the belated filing or that the trial court found

good cause.

       As above, however, we conclude that Bohannon has waived this claim. Our

supreme court recently held in White v. State, 963 N.E.2d 511, 518 (Ind. 2012), that a

defendant waives a claim that the State did not timely file a habitual offender charge less

than ten days past the omnibus date if the defendant fails to request a continuance after

the trial court permits the tardy filing. The supreme court clarified in White that this rule

does not have any exceptions, even if the State does not articulate any grounds for good

                                             9
cause in its written motion requesting permission to belatedly file the habitual offender

charge, and even if the trial court does not make an explicit finding of good cause. Id. at

517-18. Because Bohannon did not request a continuance after the State’s tardy filing,

we conclude that he has waived his claim. Nevertheless, we will explore this issue

further within the context of Bohannon’s ineffective assistance of counsel claim.

                          IV. Ineffective Assistance of Counsel

       Lastly, Bohannon raises four separate arguments with respect to his trial counsel’s

assistance. He argues that, in violation of the Sixth Amendment of the United States

Constitution and Article I, section 13 of the Indiana Constitution, his counsel provided

ineffective assistance when counsel failed to: (1) bring “several mistakes” to the trial

court’s attention; (2) properly investigate mitigating factors; (3) challenge Bohannon’s

sentence within the thirty-day time limit allowed for direct appeal; and (4) object or

request a continuance when the State filed its Information charging Bohannon with being

an habitual offender 37 days past the omnibus date without a showing of good cause.

(Appellant’s Br. p. 7).

       The Sixth Amendment guarantees the effective assistance of counsel to all

criminal defendants, as does Article I, section 13.     In order to establish ineffective

assistance of counsel under either provision, a defendant must fulfill both prongs of the

test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984), reh’g denied. Specht v. State, 838 N.E.2d 1081, 1087 (Ind. Ct. App. 2005), trans.

denied. First, the defendant must prove that his or her counsel’s performance fell below

                                            10
an objective standard of reasonableness based on prevailing professional norms, and,

second, that there is a reasonable probability that, but for counsel’s failure to meet

prevailing professional norms, the result of the proceeding would have been different.

Armstrong v. State, 932 N.E.2d 1263, 1268 (Ind. Ct. App. 2010). The elements of

Strickland are separate and independent inquiries. Landis v. State, 749 N.E.2d 1130,

1134 (Ind. 2001). Thus, if it is easier to dispose of an ineffective assistance claim on the

ground of lack of sufficient prejudice, that course should be followed.           Id.   The

presumption that an attorney has fully discharged his duty is overcome for purposes of

post-conviction relief only by showing that the attorney’s action or inaction made the

proceedings a mockery of justice that is shocking to the conscience of the court.

Whitlock v. State, 456 N.E.2d 717, 718 (Ind. 1983).

                           A. Mistakes and Mitigating Factors

       The State argues, and we agree, that Bohannon has failed to present a cogent

argument with respect to his claims that his counsel was ineffective for failing to bring

mistakes to the trial court’s attention and to investigate potential mitigating factors.

Pursuant to the Indiana Appellate Rules, the failure to present a cogent argument in a

brief results in waiver of the issue on appeal. See Ind. Appellate Rule 46(A)(8)(a). Here,

Bohannon does not identify the alleged mistakes that he thinks his counsel should have

brought to the trial court’s attention, so we cannot evaluate the merits of whether such

mistakes prejudiced his defense. Bohannon also fails to explain what mitigating factors

were present that might have impacted his sentence, had his counsel investigated the

                                            11
factors and presented them to the trial court. Counsel did present mitigating evidence

that Bohannon was a dedicated and caring father prior to the shooting, and it is not clear

from the transcript that counsel overlooked other potential mitigating factors. Since

Bohannon has not clarified his arguments, we conclude that he has waived both claims.

                    B. Failure to Object to Habitual Offender Charge

       Next, we turn to Bohannon’s claim that his trial counsel provided ineffective

assistance by failing to object or move for a continuance when the State filed the

Information charging him with being an habitual offender 37 days past the omnibus date.

As we found above, in order to preserve the claim, counsel was required to request a

continuance at the time of the belated filing, which counsel did not do. See White, 963

N.E.2d at 518.      However, we need not address the reasonableness of counsel’s

performance in light of prevailing professional norms because we conclude that

Bohannon was not prejudiced by counsel’s actions.

       In Segura v. State, 749 N.E.2d 496, 503 (Ind. 2001), our supreme court held that

when a defendant who has pled guilty subsequently alleges that an error by counsel

affected one of the defendant’s defenses, the defendant must show that he would have

had a reasonable probability of success at trial absent the error. This reasoning is in part

grounded in the cost of a new trial and the demands on judicial resources that are used

revisiting a guilty plea, but also in concerns about the toll a retrial exacts from victims

and witnesses who are required to revisit the crime years later. Id.



                                             12
       Even assuming that counsel’s performance was deficient for failing to object to the

State’s late filing of the habitual offender Information, Bohannon cannot show that the

result of his proceeding would have been different absent the error because he has not

provided any evidence that the State did not have good cause for its untimely filing; nor

is there any in the record. Pursuant to I.C. § 35-34-1-5(e), the court may permit the filing

of an habitual offender charge at any time before the commencement of trial upon a

showing of good cause for the untimely charge.

       Moreover, there is little evidence that Bohannon would have been successful

disputing the habitual offender charge at trial if counsel had requested a continuance

based on the untimely addition. The State charged Bohannon as being an habitual

offender under I.C. § 35-50-2-8, which provides that the State may seek to have a

person’s sentence enhanced as an habitual offender for any felony by alleging that the

person has accumulated two prior unrelated felony convictions. In the instant case,

Bohannon pled guilty to Count I, reckless homicide, a Class C felony, and Count IV

receiving stolen property, a Class D felony. He does not dispute that at the time of his

plea he had three prior felony convictions from 1998: Class D felony theft in cause

number 11-C01-9807-CF-46; and Class C felony forgery and Class D felony receiving

stolen property in cause number 11D01-9809-CF-822. Accordingly, we conclude that

since Bohannon had two prior unrelated felony convictions, he would not have had a

reasonable probability of success disputing the habitual offender charge at trial. See I.C.



                                            13
§ 35-50-2-8.    As a result, we are not persuaded that Bohannon’s counsel provided

ineffective assistance for failing to request a continuance.

                            C. Failure to File a Timely Appeal

       Finally, we turn to Bohannon’s argument that the post-conviction court erred in

denying his claim that his counsel provided ineffective assistance when he failed to file a

timely appeal. Bohannon does not clarify what claims his counsel should have raised on

appeal. Accordingly, we will evaluate his claim with respect to the issues that he raised

before the post-conviction court. Only one of those claims would have been permissible

on appeal.

       It is a well-established rule that a person who pleads guilty is not permitted to

challenge the propriety of the underlying convictions on direct appeal. Jensen v. State,

905 N.E.2d 384, 395 (Ind. 2009). Such a person is only entitled to bring a direct claim

against the sentence imposed following the plea agreement, and only if that sentence is

one in which the trial court exercised sentencing discretion. Id. Any challenge to a

conviction imposed as a result of a guilty plea where the trial court exercised no

discretion must be made through the proper procedure afforded by the Indiana Rules of

Procedure for Post-Conviction Remedies. Id.

       Accordingly, only one of the claims that Bohannon raised before the post-

conviction court would have been eligible for direct appeal: that the trial court erred in

imposing a double sentence enhancement onto Count III. However, because the post-

conviction court addressed this claim and ordered Bohannon’s sentence corrected, we

                                             14
cannot find any prejudice in counsel’s failure to raise the claim on appeal. Accordingly,

we conclude that counsel did not provide ineffective assistance by failing to file a timely

appeal.3,4

                                             CONCLUSION

        Based on the foregoing, we conclude that (1) the post-conviction court did not err

in denying Bohannon’s claim that his sentence violated state and federal constitutional

prohibitions against double jeopardy; (2) the post-conviction court did not err in denying

his claim that the State violated I.C. 35-34-1-5(e); and (3) the post-conviction court did

not err in finding that Bohannon received the effective assistance of counsel. However,

we remand to the trial court to correct Bohannon’s sentence in accordance with the post-

conviction court’s determination that Bohannon’s original sentence for Count III was

impermissibly enhanced twice.

        Affirmed and remanded for correction of sentencing order.

BAILEY, J. and CRONE, J. concur

3
  We do note that the trial court erred in correcting Bohannon’s sentence. Pursuant to Appellate Rule 65,
a trial court may not take action in reliance upon a judicial opinion until it has been certified. In addition,
an opinion may not be certified until the time for all petitions, rehearing, transfer, or review has expired.
App. R. 65(E). Under App. R. 9(A), a party has thirty days to appeal a final judgment. As a result, the
trial court erred in correcting Bohannon’s sentence only two days after the post-conviction court ordered
the correction. The trial court did not allow Bohannon the opportunity to appeal the post-conviction
court’s order, and so its resentencing order is void. We remand to the trial court to again correct
Bohannon’s sentence in line with the post-conviction court’s order with respect to the double sentence
enhancement of Count III.
4
  In addition, Bohannon also asserts that the trial court erred by adding a double enhancement to his
sentence for reckless homicide when it resentenced him following the post-conviction court’s order. We
will not address this argument as Bohannon has appealed the post-conviction court’s order and not the
trial court’s resentencing order.

                                                      15
