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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.

ATTORNEYS FOR APPELLANT: SUSAN K. CARPENTER Public Defender of Indiana VICTORIA CHRIST Deputy Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana JOBY D. JERRELLS Special Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
BRIAN BAXTER, Appellant-Petitioner, vs. STATE OF INDIANA, Appellee-Respondent. ) ) ) ) ) ) ) ) )

No. 49A02-0702-PC-128

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Tanya Walton Pratt, Judge The Honorable Heather Welch, Commissioner Cause No. 49G01-0110-PC-197915

November 20, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Brian Baxter appeals from the denial of his petition for post-conviction relief. We affirm. Issue Was Baxter's trial counsel ineffective in failing to tender a lesser included offense instruction on reckless homicide? Facts and Procedural History Another panel of this Court set forth the following relevant facts in Baxter's direct appeal: On October 5, 2001, Baxter, Terrance Thomas, and Larry Mitchell, armed with a gun, went to Edward Green's apartment to rob him. Green was at his apartment with Antonio McGregor and Anthony Ashmore. During the robbery, Baxter shot and injured Green and fled from the apartment. While Baxter was waiting for Thomas and Mitchell in the car, Edward Gilbert entered the apartment. Thomas then shot and killed Green, Gilbert, and McGregor, and injured Ashmore. .... On October 10, 2001, the State charged Baxter with three counts of murder [of Green, McGregor, and Gilbert], three counts of felony murder [of Green, McGregor, and Gilbert], one count of attempted murder [of Ashmore], one count of Class A felony conspiracy to commit robbery [of Green], one count of Class A felony robbery [of Green], one count of Class A misdemeanor carrying a handgun without a license, one count of Class A misdemeanor resisting law enforcement, and one count of Class D felony residential entry, that count was eventually dismissed. On June 9, 2003, Baxter filed a motion to suppress, which the trial court denied. That same day a jury trial began. The jury [which had been instructed on accomplice liability 1 ] found Baxter guilty as charged. The trial court sentenced Baxter to sixty years on each of the three felony murder charges,[ 2 ]
See Ind. Code

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