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FOR PUBLICATION

FILED
Dec 30 2010, 9:22 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANT: SUSAN K. CARPENTER Public Defender of Indiana JONATHAN O. CHENOWETH Deputy Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

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

No. 49A05-1007-PC-482

APPEAL FROM THE MARION SUPERIOR COURT CRIMINAL DIVISION, ROOM 3 The Honorable Stanley E. Kroh, Judge Pro Tempore Cause No. 49G03-0410-PC-182728

December 30, 2010 OPINION - FOR PUBLICATION RILEY, Judge

STATEMENT OF THE CASE Appellant-Petitioner, Dwayne Rhoiney (Rhoiney), appeals the post-conviction court's denial of his petition for post-conviction relief. We reverse and remand for resentencing. ISSUE Rhoiney raises two issues on appeal, which we consolidate and restate as the following issue: Whether Rhoiney's appellate counsel was ineffective when she failed to raise the imposition of consecutive sentences as an issue in his direct appeal. FACTS AND PROCEDURAL HISTORY We adopt this court's statement of facts as set forth in our memorandum opinion issued in Rhoiney's direct appeal, Rhoiney v. State, No. 49A02-0602-CR-119 (Ind. Ct. App. Dec. 8, 2006), trans. denied: On the evening of September 18, 2004, Rhoiney and an unidentified companion drove to [Gary] Wemer's house where Wemer and his cousin Charles Cook were unloading plywood. Cook, Rhoiney, and Rhoiney's companion got into an argument over money Rhoiney believed Cook had stolen some months earlier. Rhoiney threatened to kill Cook. Rhoiney's companion had a gun. Rhoiney threatened to kill Cook's girlfriend[,] Victoria Newland, and then Rhoiney and his companion left. Cook called Newland to warn her and tell her Wemer's girlfriend, Alicha Walton, was coming to pick her up. When Walton started to drive away from Wemer's house, she saw Rhoiney walking toward the house with a gun. Because her child was in the house, Walton flashed her headlights at Rhoiney to attract his attention. He walked over to her vehicle, pointed a gun at her, and threatened her. She told him Cook had returned to his own house and he left. Walton then went back inside and told Cook and Wemer that Rhoiney was on his way to Cook and Newland's house. The men left for Newland's house in separate vehicles and by separate routes.

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Newland was on the porch when Wemer arrived. Wemer got out of the car and told Newland to get in because he was taking her back to his house. Rhoiney and his companion pulled up as Newland reached Wemer's vehicle. Rhoiney got out of the car with a gun and asked Wemer if he knew where the money was. Wemer said he did not. Rhoiney told Wemer to stop or he would shoot. Wemer stopped. Wemer and Rhoiney were face-to-face and about five or six feet apart. Newland testified: Some lights came up the road, and [Rhoiney] looked at Gary Wemer, and the trigger went off on the gun. And then he got in the car. After he shot Gary, he turned around and looked at me and acted kind of frantic, got in the car and rushed off. Cook arrived as Rhoiney sped off. Wemer later died of a gunshot wound to the stomach. Newland identified Rhoiney as the person who shot Wemer. On November 23, 2005, the State filed an Information charging Rhoiney with Count I, murder, a felony, Ind. Code

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