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FOR PUBLICATION

ATTORNEYS FOR APPELLANT: SUSAN K. CARPENTER Public Defender of Indiana LINDA G. NICHOLSON Deputy Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana

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

No. 49A05-0603-PC-157

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Sheila Carlisle, Judge The Honorable W.T. Robinette, Commissioner Cause No. 49G03-9708-PC-127103

September 29, 2006

OPINION - FOR PUBLICATION

CRONE, Judge

Case Summary Mario McCann appeals the denial of his petition for post-conviction relief. We affirm in part, reverse in part, and remand. Issues We restate McCann's issues as follows: I. Whether trial counsel was ineffective in failing to object to the trial court's instruction on attempted murder and tender a correct instruction; and Whether appellate counsel was ineffective in failing to raise a double jeopardy argument regarding McCann's convictions and sentences for attempted murder and class A felony burglary. Facts and Procedural History We recite the facts most favorable to the judgment as outlined in McCann's direct appeal to this Court: On the evening of August 2, 1997, McCann approached and talked to A.L. ("A.L.") and Anthony Dozier ("Dozier") at their home at 38th Street and College Avenue in Indianapolis. After McCann left, A.L. went upstairs and fell asleep in her bed with the television on. When A.L. awoke McCann was in her bedroom. McCann tried to pull her covers off and told her he had a gun that he would use if she was not quiet. Additionally, McCann touched A.L.'s breasts and stated "shut up, it [won't] take very long, and then [I'll] leave [you] alone." A.L. viewed McCann's face for approximately ten minutes. A.L.'s boyfriend, Dozier, then entered the bedroom, saw McCann, and began to struggle with McCann. During this struggle, McCann shot Dozier in the chest. McCann then left through the bedroom window. Dozier viewed McCann's face for approximately five minutes. An upstairs neighbor called the police. Detective Lawrence Cahill ("Detective Cahill"), of the Indianapolis Police Department, responded to the police radio call, and conducted the investigation of the crime. A.L. described McCann as a young black male approximately five feet ten inches in height, and other residents of the apartment and neighbors indicated to Detective Cahill that the suspect's first name was Mario. From a police database, Detective Cahill printed out photographs comprised of black males named Mario. Then, after eliminating
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II.

pictures from suspects that were in the database more than once and removing names, Detective Cahill presented a thirty-two-picture array to A.L. and Dozier. Two of the pictures within this array were of McCann. Both Dozier and A.L. identified McCann as the person who attempted to rape A.L. and shot Dozier. Thereafter, McCann was arrested and charged for Attempted Murder, Burglary, and Attempted Rape. Prior to trial, McCann moved to suppress A.L.'s and Dozier's in-court identifications of him. McCann argued that the out of court identification procedures were unduly suggestive. The trial court denied this motion. During trial, McCann renewed his objections to A.L.'s and Dozier's in-court identifications. These objections were denied. [On February 9, 1999,] McCann was found guilty on all three charged offenses. [At a sentencing hearing on March 8, 1999, the] trial court cited four aggravating circumstances and no mitigating circumstances. The trial court sentenced McCann to fifty years for each offense, with the Attempted Murder conviction and Burglary conviction to run consecutively and the Attempted Rape conviction to run concurrently. McCann was sentenced to a total executed sentence of one hundred years. McCann v. State, 742 N.E.2d 998, 1001-02 (Ind. Ct. App. 2001) ("McCann I"), aff'd in part and vacated in part by 749 N.E.2d 1116 (Ind. 2001) ("McCann II"). Another panel of this Court affirmed McCann's convictions but remanded for resentencing based on the trial court's finding of two improper aggravators. McCann I, 742 N.E.2d at 1007-08. On transfer, our supreme court held that one of those aggravators was proper and affirmed McCann's convictions and sentence. McCann II, 749 N.E.2d at 1120-21. On September 18, 2002, McCann filed pro se an amended petition for post-conviction relief. The State filed its answer on October 15, 2002. On August 29, 2005, McCann filed by counsel a motion to amend his petition, which the post-conviction court granted three days later. The State filed its response on September 7, 2005. On October 4, 2005, the postconviction court held a hearing on McCann's petition. On January 31, 2006, the postconviction court denied McCann's petition. McCann now appeals.
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Discussion and Decision Standard of Review In addressing McCann's allegations of error, we employ the following standard of review: The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. On review, we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Further, the post-conviction court in this case entered findings of fact and conclusions thereon in accordance with Indiana PostConviction Rule 1(6). A post-conviction court's findings and judgment will be reversed only upon a showing of clear error--that which leaves us with a definite and firm conviction that a mistake has been made. In this review, we accept findings of fact unless clearly erroneous, but we accord no deference to conclusions of law. The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Walker v. State, 843 N.E.2d 50, 56 (Ind. Ct. App. 2006) (quotation marks and some citations omitted), trans. denied.

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I. Attempted Murder Instruction McCann first contends that trial counsel was ineffective in failing to object to the trial court's attempted murder instruction and tender a correct instruction. 1 ineffectiveness claims, our supreme court has stated, A defendant claiming a violation of the right to effective assistance of counsel must establish the two components set forth in Strickland v. Washington, 466 U.S. 668 (1984); accord Williams v. Taylor, 529 U.S. 362, 390-91 (2000). First, the defendant must show that counsel's performance was deficient. Strickland, 466 U.S. at 687. This requires a showing that counsel's representation fell below an objective standard of reasonableness, id. at 688, and that the errors were so serious that they resulted in a denial of the right to counsel guaranteed the defendant by the Sixth Amendment, id. at 687. Second, the defendant must show that the deficient performance prejudiced the defense. Id. To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. Counsel is afforded considerable discretion in choosing strategy and tactics, and we will accord those decisions deference. Id. at 689. A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690. The Strickland Court recognized that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client. Id. at 689. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. The two prongs of the Strickland test are separate and independent inquiries. Thus, if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice that course should be followed. Regarding

In addressing the propriety of the attempted murder instruction, the post-conviction court stated that McCann "did not raise this issue on direct appeal. Since the issue was available then, it is now waived." Appellant's App. at 113. While it is true that McCann waived any freestanding claim of error by failing to raise the issue on direct appeal, he may nevertheless challenge the propriety of the instruction in the context of an ineffective assistance of counsel claim. See Williamson v. State, 798 N.E.2d 450, 452-53 (Ind. Ct. App. 2003) (addressing appellant's double jeopardy claim), trans. denied (2004).

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Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001) (quotation marks, alterations, and some citations omitted), cert. denied (2002). Without objection, the trial court gave the following instruction to the jury: Attempt Murder A person attempts to commit a crime when he knowingly engages in conduct that constitutes a substantial step toward the commission of the crime. The crime of Murder is defined by statute as follows: A person who knowingly kills another human being commits Murder. The elements of this offense are that the defendant must: 1. Intentionally 2. Engage in conduct that constituted a substantial step toward the commission of 3. Knowingly or intentionally killing another human being The defendant must have had the specific intent to commit Murder in order to be found guilty of Attempt Murder, a Class A Felony. Intent to kill may be inferred from the use of a deadly weapon in a manner reasonably calculated to cause death. Trial Record at 126 (capitalization altered). "The Indiana Supreme Court has recognized the special need to instruct juries precisely as to the correct level of culpability for attempted murder because of the stringent penalties for that charge and the inherent ambiguity often involved in its proof." Specht v. State, 838 N.E.2d 1081, 1089 (Ind. Ct. App. 2005), trans. denied (2006). McCann observes that our supreme court has long held that an attempted murder instruction "must inform the jury that the State must prove beyond a reasonable doubt that the defendant, with intent to kill the victim, engaged in conduct which was a substantial step toward such killing." Spradlin v. State, 569 N.E.2d 948, 950 (Ind. 1991). Stated differently, An instruction that purports to set forth the elements required for an attempted murder conviction must ... specifically state that the jury is required to find that the defendant intended to kill the victim. Instructing the jury with a list of
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elements which suggests that it may convict on a lesser mens rea, such as "knowingly," constitutes error. Beasley v. State, 643 N.E.2d 346, 348 (Ind. 1994) (citing, inter alia, Spradlin, 659 N.E.2d at 950-51); compare Ind. Code

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