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FOR PUBLICATION

PRO SE APPELLANT: CHRISTOPHER PARISH Michigan City, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana MATTHEW D. FISHER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
CHRISTOPHER PARISH Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) )

No. 20A03-0502-PC-74

APPEAL FROM THE ELKHART SUPERIOR COURT The Honorable Stephen Platt, Judge Cause No. 20D02-0102-CF-00011

December 6, 2005 OPINION - FOR PUBLICATION

VAIDIK, Judge

Case Summary Christopher Parish, pro se, appeals the denial of his petition for post-conviction relief. His main arguments on appeal are that his trial and appellate counsel were ineffective and that he is entitled to a new trial on his charges of attempted murder and robbery resulting in serious bodily injury on grounds of newly discovered evidence. Concluding that Parish has established by a preponderance of the evidence that he received ineffective assistance of trial counsel, we reverse the post-conviction court, vacate Parish's convictions, and remand for a new trial. 1 Facts and Procedural History The underlying facts of this case, taken from this Court's opinion on direct appeal, are as follows: The facts most favorable to the verdict establish that on the evening of October 29, 1996, Michael Kershner was in his apartment watching a movie with Eddie Love, Nona Canell, Jenny Dolph, Jason Actley, and Jermaine Bradley. When Kershner answered a knock at the front door, a tall man later identified as Keith Cooper, and a short man later identified as Parish, burst into the apartment. The intruders were armed and asked for drugs, money, and guns. After a brief struggle, Cooper shot Kershner in the stomach. Parish held a gun to Dolph and Bradley and said he would kill them if they moved. Before leaving the apartment, Cooper took an SKS rifle and Parish took a bag full of quarters. They also took a taser gun from the apartment. During an investigation of the incident, Love informed Officer Steve Rezutko of the Elkhart Police Department that he knew Parish to be the non-shooter. As a result of that information, Officer Rezutko compiled an album containing sixty photographs, including Parish's. Both Canell and Dolph identified Parish as one of the intruders. Officer Rezutko subsequently showed a six-photo array to Kershner, who also identified Parish as one of the intruders.

1

We hereby deny Parish's motion for expedited consideration of his appeal.

2

On March 6, 1997, the State filed its amended information charging Parish with attempted murder and robbery resulting in serious bodily injury. Parish v. State, No. 20A04-9810-CR-506 (Ind. Ct. App. Sept. 24, 1999). The State charged Cooper with the same offenses and tried him first in 1997. Following a bench trial, Cooper was acquitted of attempted murder but convicted of robbery resulting in serious bodily injury. Parish hired attorney Mark Doty to represent him at his 1998 jury trial. At trial, Parish presented an alibi defense. Seven witnesses, all of whom were family members, testified that Parish was in Chicago at the time of the shooting. The jury found Parish guilty as charged. At Parish's sentencing hearing, Doty stated: This is a situation where--as [the deputy prosecutor] had pointed [out] and we discussed before this trial ever occurred--this is going to be a matter of identification witnesses, versus the alibi witnesses. I feel that, perhaps due to some of my failing as an attorney, maybe I didn't do as good a job as I

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