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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. ATTORNEY FOR APPELLANT: TRACY A. NELSON Deputy Public Defender Indianapolis, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General Of Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ANDRE D. JOHNSON, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 71A05-0609-PC-499

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable William H. Albright, Judge Cause No. 71D03-0407-PC-24

September 18, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Andre Johnson appeals from the post-conviction court's denial of his petition for postconviction relief. Johnson argues that the post-conviction court improperly found that Johnson failed to meet his burden of establishing that his trial and appellate representation was ineffective. He raises two issues related to this argument: 1) whether his trial counsel was ineffective for failing to file a motion to dismiss charges that Johnson argues were required to be joined with charges filed in a prior case; and 2) whether his trial counsel was ineffective for failing to move for a dismissal of an habitual offender enhancement in the second case, and whether his appellate counsel was ineffective for not challenging this enhancement on direct appeal. Concluding that Johnson has failed to meet his burden of showing that his representation was deficient, we affirm. Facts and Procedural History The underlying facts are contained in our supreme court's opinion addressing Johnson's direct appeal: Seventy-four year old Florence Hoke called her niece, Nancy Whiteman, at 8:30 a.m. on April 10, 1990, and told Whiteman that she was going to get license plates for her car. At 12:30 p.m., Whiteman called Hoke twice, but Hoke did not recognize her. Whiteman went to Hoke's apartment, where she discovered Hoke sitting in a chair holding her head. Whiteman called "911." Richard Bourdon, a paramedic, arrived and observed that Hoke was disoriented and unable to communicate. He observed a small bruise and a bump on the back of Hoke's head. At the hospital later that day, Whiteman observed bruises on Hoke's knees and on one elbow. Hoke was diagnosed as suffering a subdural hematoma, "a collection of blood that forms under the external cover of the brain." The treating physician testified that subdural hematomas are caused by trauma, which could result from "a blow to the head, a fall, [or] any type of force." Doctors performed a craniotomy, but Hoke never regained consciousness, and died approximately 2

two months later from pneumonia and infection. Hoke's new license plates were found in her apartment, but her purse was missing. A leather bow resembling one that was on Hoke's purse was found on the ground near where Hoke's car was parked. On April 10, 1990, Margaret Jackson resided with Homer Frison. Andre D. Johnson visited that morning and left with Frison. The two told Jackson that when they returned they "would either have some money or would have a way of making some money." When Frison and Johnson later met up with Jackson, they had a purse and a wallet containing credit cards belonging to Hoke. The trio went shopping, Jackson purchased cigarettes with the credit cards, and the trio sold the cigarettes to obtain money to purchase drugs. Johnson v. State, 653 N.E.2d 478, 478-79 (Ind. 1995). In relation to Johnson's use of Hoke's credit cards, on April 26, 1990, the State charged Johnson with six counts of fraud, a Class D felony, attempted fraud, a Class D felony, and with being an habitual offender. On June 28, 1990, a jury found Johnson guilty of four counts of fraud, attempted fraud, and determined that he was an habitual offender. Hoke died two days later. On July 6, 1990, the trial court sentenced Johnson to three years for each offense, all but one to run consecutively, and enhanced the sentence by twelve years because of Johnson's habitual offender status. Johnson appealed his sentence, and our supreme court remanded with instructions that the trial court sentence Johnson under the then-existing Class D felony habitual offender statute. Johnson v. State, 593 N.E.2d 1181, 1182 (Ind. 1992). On March 19, 1992, the State charged Johnson with robbery, a Class A felony, and felony murder. On August 28, 1992, the State added an habitual offender count. On June 30, 1993, the jury found Johnson guilty of robbery, and of being an habitual offender, and not guilty of felony murder. The trial court sentenced Johnson to fifty years for robbery, 3

enhanced by twenty-five years for his status as an habitual offender, to run concurrently to his sentences for fraud. Our supreme court affirmed Johnson's conviction. Johnson, 653 N.E.2d 478. On March 21, 1997, Johnson filed a pro se petition for post-conviction relief. On October 20, 2003, Johnson, this time assisted by counsel, filed an amended petition, alleging that Johnson received ineffective assistance of trial and appellate counsel. On May 19, 2006, a hearing was held on this petition. On July 28, 2006, the trial court issued an order denying Johnson's motion. Johnson now appeals. Discussion and Decision Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied, 540 U.S. 830 (2003). Therefore, to prevail, petitioners must establish their claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 745. When appealing the denial of a petition, a petitioner appeals from a negative judgment. Burnside v. State, 858 N.E.2d 232, 237 (Ind. Ct. App. 2006). Therefore, petitioners must convince this court that the evidence, taken as a whole, leads unmistakably to a conclusion opposite that reached by the post-conviction court. Stevens, 770 N.E.2d at 745. We will review a post-conviction court's findings of fact under a clearly erroneous standard, but will review its conclusions of law de novo. Burnside, 858 N.E.2d at 237. A petitioner claiming to have received ineffective assistance of counsel must establish the two components of the test set out in Strickland v. Washington, 466 U.S. 668 (1984).

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Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first prong, the petitioner must establish that counsel's performance was deficient by demonstrating that counsel's representation fell below an objective standard of reasonableness and that the errors were so serious they resulted in a denial of the Sixth Amendment right to counsel. Id. Under this prong, we will assume that counsel performed adequately, and will defer to counsel's strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). "Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective." Douglas v. State, 800 N.E.2d 599, 607 (Ind. Ct. App. 2003), trans. denied. Under the second prong, the petitioner must show that the deficient performance resulted in prejudice. A petitioner may show prejudice by showing there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Reed, 866 N.E.2d at 769. We will find a reasonable probability exists if our confidence in the outcome is undermined. Douglas, 800 N.E.2d at 607. If we can resolve a claim of ineffective assistance of counsel based on lack of prejudice, we need not address the adequacy of counsel's performance. Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002). The same standard of review applies to claims of ineffective assistance of trial counsel and claims of ineffective assistance of appellate counsel. Burnside, 858 N.E.2d at 238. I. Failure to Move For Dismissal of Robbery Charge Johnson argues that his trial counsel was ineffective for failing to move to dismiss the

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robbery charge 1 based on three statutes. Indiana Code section 35-34-1-9(a) states: Two (2) or more offenses may be joined in the same indictment or information, with each offense stated in a separate count, when the offenses: (1) are of the same or similar character, even if not part of a single scheme or plan; or (2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. Indiana Code section 35-34-1-10 states in relevant part: (b) When a defendant has been charged with two (2) or more offenses in two (2) or more indictments or informations and the offenses could have been joined in the same indictment or information under section (9)(a)(2) of this chapter, the court, upon motion of the defendant or the prosecuting attorney, or on its own motion, shall join for trial all of such indictments or informations unless the court, in the interests of justice, orders that one (1) or more of such offenses shall be tried separately. Such motion shall be made before commencement of trial on either of the offenses charged. (c) A defendant who has been tried for one (1) offense may thereafter move to dismiss an indictment or information for an offense which could have been joined for trial with the prior offenses under section 9 of this chapter. The motion to dismiss shall be made prior to the second trial, and shall be granted if the prosecution is barred by reason of the former prosecution. Indiana Code section 35-41-4-4 provides: (a) A prosecution is barred if all of the following exist: (1) There was a former prosecution of the defendant for a different offense or for the same offense based on different facts. (2) The former prosecution resulted in an acquittal or a conviction of the defendant or in an improper termination under section 3 of this chapter. (3) The instant prosecution is for an offense with which the defendant should have been charged in the former prosecution. (b) A prosecution is not barred under this section if the offense on which it is based was not consummated when the trial under the former prosecution began.

Because the jury found Johnson not guilty of felony murder, Johnson's trial counsel could not be found ineffective for failing to move to dismiss the felony murder charge, as Johnson suffered no prejudice related to the felony murder charge.

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Johnson argues that the robbery charge met the three criteria of section 35-41-4-4, as there were previous fraud charges that resulted in convictions, and the robbery charge was an offense with which the State should have charged Johnson in the fraud prosecution pursuant to sections 35-34-1-9(a) and 35-34-1-10(b), (c). In support of this argument, Johnson cites Williams v. State, 762 N.E.2d 1216 (Ind. 2002) and Wiggins v. State, 661 N.E.2d 878 (Ind. Ct. App. 1996). These cases interpreted section 35-34-1-10 to provide, "`where two or more charges are based on the same conduct or on a series of acts constituting parts of a single scheme or plan, they should be joined for trial.'" Williams, 762 N.E.2d at 1219 (quoting Wiggins, 661 N.E.2d at 880) (emphasis in original). Therefore, had Williams and Wiggins been the law at the time of Johnson's trial and appeal, we would need to determine whether the robbery and frauds constituted a single scheme or plan. However, Williams and Wiggins were not decided until after Johnson's trial and appeal, and counsel is not ineffective for failing to anticipate a change in the law. Reed v. State, 856 N.E.2d 1189, 1197 (Ind. 2006). Our examination of the case law existing at that time leads us to conclude that Johnson's counsel was not ineffective as he could not have anticipated the rulings in Wiggins or Williams based on the existing interpretation of the relevant statutes. 2 In Seay v. State, 550 N.E.2d 1284 (Ind. 1990), superceded on other grounds, Ind. Code

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