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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

PRO SE APPELLANT: ALVA LESLIE FUNK Michigan City, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ALVA LESLIE FUNK, Appellant-Petitioner, vs. STATE OF INDIANA, Appellee-Respondent. ) ) ) ) ) ) ) ) )

No. 79A02-0605-PC-382

APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Thomas H. Busch, Judge Cause No. 79D02-0511-FC-99

April 17, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION VAIDIK, Judge

Case Summary Alva Leslie Funk appeals the post-conviction court's denial of his petition for post-conviction relief. Specifically, Funk argues that the post-conviction court erred by denying his motion for an evidentiary hearing and erred by denying his claims of denial of counsel at the arraignment hearing, improper jury instruction, improper habitual offender information, improper sentencing under Blakely v. Washington, ineffective assistance of trial counsel, and ineffective assistance of appellate counsel. Concluding that the post-conviction court properly denied Funk's motion for an evidentiary hearing and properly denied post-conviction relief on Funk's claims of denial of counsel at the arraignment hearing, improper jury instruction, improper habitual offender information, improper sentencing under Blakely v. Washington, ineffective assistance of trial counsel, but that post-conviction court erred by failing to enter specific findings on Funk's ineffective assistance of appellate counsel claims, we affirm in part and reverse in part the post-conviction's denial of Funk's post-conviction petition and remand for specific findings on Funk's ineffective assistance of appellate counsel claims. Facts and Procedural History The facts as reported in Funk's direct appeal are as follows: The evidence most favorable to the verdict indicates that Funk and Glenda Stichter ("Stichter") attempted to escape from police in a white Cam[a]ro at very high speeds and with dangerous maneuvering of the vehicle. A detective saw Stichter, who had an outstanding arrest warrant, driving the white Cam[a]ro west on Salem Street. Funk was later identified as the passenger in the Cam[a]ro. The detective followed the Cam[a]ro in an unmarked police car. The detective and other police officers planned to make a road block but the Cam[a]ro went into Tecumseh Park instead. The detective pursued the 2

Cam[a]ro into the park with lights and sirens. Another police car followed the Cam[a]ro into the park. The Cam[a]ro went through the park. The detective cut across a median to prevent the Cam[a]ro from exiting the park. As the detective cut across the median, the Cam[a]ro came broadside at him. Funk reached down in his seat and pulled up a gun. He turned the gun towards the windshield of the detective's car. The detective laid down in his seat to avoid being shot. Funk then held the gun straight out the open window; he next pointed the gun at the second officer in pursuit. The Cam[a]ro then exited the park. Meanwhile, several other police cars had arrived and tried to block the Cam[a]ro, without success. They followed the Cam[a]ro in a line and pursued it as it exited onto Interstate 65 South. After the Cam[a]ro exited onto State Road 25, it was hit on the passenger side by an oncoming car. Funk and Stichter were taken into custody. A gun containing four rounds of ammunition was discovered on the floorboard on the passenger side of the Cam[a]ro. [Following a jury trial,] Funk was found guilty of two (2) counts of Intimidation While Armed With a Deadly Weapon, class C felonies; two (2) counts of Resisting Law Enforcement While Armed With a Deadly Weapon, class D felonies[;] one (1) count of Resisting Law Enforcement, a class A misdemeanor[;] three (3) counts of Criminal Recklessness While Armed With a Deadly Weapon, class D felonies[;] and being an Habitual Offender. At sentencing, one (1) count of Criminal Recklessness While Armed With a Deadly Weapon and one (1) count of Resisting were merged into Count I, Intimidation While Armed With a Deadly Weapon. One (1) count of Resisting Law Enforcement While Armed With a Deadly Weapon and one (1) count of Criminal Recklessness While Armed With a Deadly Weapon were merged into Count III, Intimidation While Armed With a Deadly Weapon. One (1) count of Criminal Recklessness While Armed With a Deadly Weapon was merged into Count VI, Resisting Law Enforcement. Funk was sentenced to eight (8) years for Count I, Intimidation While Armed With a Deadly Weapon, eight (8) years for Count III, Intimidation While Armed With a Deadly Weapon, and one (1) year on Count VI, Resisting Law Enforcement, all to run consecutively. Count I was enhanced by thirty (30) years because of Funk's status as an habitual offender.

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Appellant's App. p. 235-37; Funk v. State, No. 79A04-9307-CR-249, slip op. at 2-4 (Ind. Ct. App. Dec. 12, 1994). Thus, Funk received an aggregate sentence of forty-seven years. In July 1993, Funk, by counsel, filed a direct appeal to this Court and argued that: (1) the trial court erred by denying his motion for continuance filed at the beginning of trial; (2) he received ineffective assistance of trial counsel; 1 (3) the trial court erred by denying his motion for change of venue; (4) the evidence was insufficient to support his convictions; and (5) his sentence was manifestly unreasonable. In an unpublished

memorandum decision of December 12, 1994, this Court affirmed Funk's convictions and sentence. Funk filed a petition to transfer, which the Indiana Supreme Court denied on January 18, 1995. In February 1995, Funk filed a motion to correct erroneous sentence, alleging that he had been erroneously sentenced on Counts I and III because the charging information, jury verdict forms, and abstract of judgment referred to intimidation "while armed" with a deadly weapon instead of "draws or uses" a deadly weapon as stated in the intimidation statute. See Ind. Code

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