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FOR PUBLICATION

ATTORNEYS FOR APPELLANT: KATHARINE C. LIELL STACY R. ULIANA Liell & McNeil Bloomington, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana KELLY A. MIKLOS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
RYAN M. SPECHT, Appellant-Petitioner, vs. STATE OF INDIANA, Appellee-Respondent. ) ) ) ) ) ) ) ) )

No. 82A05-0501-PC-45

APPEAL FROM THE VANDERBURGH CIRCUIT COURT The Honorable Carl A. Heidt, Judge Cause No. 82C01-9803-CF-254

December 12, 2005 OPINION - FOR PUBLICATION

VAIDIK, Judge

Case Summary Ryan Specht appeals the post-conviction court's partial denial of his petition for post-conviction relief. Specifically, Specht contends that the post-conviction court erred by finding that his counsel were not ineffective either at trial or on appeal in his prosecution on charges of murder, attempted murder, and robbery. 1 Finding that

Specht's counsel were ineffective at the trial level regarding the attempted murder charge, we reverse that conviction. Because his counsel were otherwise not ineffective, we affirm the post-conviction court in all other respects. Facts and Procedural History In the early part of 1998, Specht received marijuana from Brian Powers and promised to pay him $100.00. Specht then spoke with several different people about the possibility of robbing a gas station in order to pay his drug debt. In particular, Specht talked about stabbing a clerk with a broken glass bottle or hitting him with a hockey puck in a sock. One night, Specht went with his girlfriend, Michelle Evans, to the house where one of Evans' friends, Eric Schmitt, lived. While Specht and Evans were at the house, Schmitt showed them a handgun, and the three discussed robbing a convenience store. Evans and Schmitt specifically suggested robbing Motomart, a gas station/convenience store. The three eventually left the house; Specht had the handgun, and Schmitt had a shotgun. The group drove around in Evans' car for approximately twenty-five minutes before parking in a gravel lot one-half mile from Motomart.

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The same two attorneys that represented Specht at trial also represented him on appeal.

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Schmitt, Specht, and Evans walked to Motomart, and Specht walked in alone with the handgun in his pocket, planning to rob the store. Specht brought a drink to the cashier but then left the drink on the counter and walked out of the store. Outside, Schmitt took Specht's gloves and the handgun and handed the shotgun to Specht. Schmitt started talking about killing people, began jumping around, and then went into the store alone. While Specht was outside, he heard a gunshot from inside and went back into the store with the shotgun. Once inside the store, Specht saw Schmitt shoot Charlie Simpson, the store clerk. Schmitt shot Simpson three times before running across the store and shooting a customer, Brent Tracy. After Schmitt shot Tracy, he ran to one of the cash registers and began taking money. Specht attempted to open the other cash register but could not. Specht then grabbed two packs of cigarettes, and he and Schmitt ran to the car, where Evans was waiting, and sped off. After Specht and Schmitt left, Tracy called the police. Tracy survived a gunshot wound to the side of the head and a fractured jawbone, but Simpson was pronounced dead at the scene. After leaving Motomart, Specht, Schmitt, and Evans drove to Eugene Barker's house. Schmitt and Evans eventually left, and Specht remained at the house with Barker. Specht tried to sell the handgun to Barker, and he told Barker that three or four shots had been fired from it earlier that night. In the early morning hours of the next day, Specht went to Powers' house and paid him $97.00 or $98.00 of the robbery money for the marijuana. Later the next day, police questioned Specht about the incident, and Specht admitted his participation in the robbery. The State charged Specht with murder, felony 3

murder, robbery as a Class A felony, and attempted murder. On August 5, 1998, a jury found Specht guilty of all four charges, and the trial court entered judgment against Specht for murder, robbery, and attempted murder. 2 The court sentenced Specht to sixty years on the murder charge, thirty-five years on the robbery charge, and thirty-five years on the attempted murder charge, and it ordered all three sentences to run concurrently, for a total executed sentence of sixty years. On direct appeal, Specht's counsel raised two issues, namely, that the trial court erred in denying Specht's motion for a change of venue and in allowing the State to impeach Specht with evidence of his guilty plea in another matter. On August 17, 2000, the Indiana Supreme Court affirmed Specht's convictions and sentence. Specht v. State, 734 N.E.2d 239 (Ind. 2000). Then, on October 17, 2002, Specht filed his Amended Petition for Post-Conviction Relief. Specht alleged that his counsel had performed deficiently at trial by: (1) failing to object to "multiple improper jury instructions" and to tender "proper" jury instructions; (2) failing to object to "the State's misstatement of law" during closing arguments; (3) failing to move to dismiss the charging information; and (4) failing to assert "proper grounds" to support counsel's motion for judgment on the evidence. Appellant's App. p. 108. According to Specht, there is a reasonable probability that the result of his trial would have been different had his counsel done so. In addition, Specht alleged that his counsel had performed deficiently on appeal by: (1) failing to argue that counsel had been ineffective at trial; (2) failing to raise the double jeopardy violation created by the entry of judgments of conviction and the
2

The trial court did not enter judgment on the felony murder conviction because of double jeopardy concerns.

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imposition of sentences on both the Class A felony robbery and the Murder; (3) failing to raise the trial court's failure to grant a mistrial as reversible error; and (4) failing to include all possible grounds for review on direct appeal. Id. at 109. Specht contends that there is a reasonable probability that the result of his appeal would have been different had his counsel done so. After the State filed a brief answer to Specht's amended petition, each party then submitted a supporting memorandum and proposed findings of fact, conclusions of law, and judgment. On December 16, 2004, the post-conviction court entered findings of fact, conclusions of law, and judgment. The court granted relief on one of the issues raised by Specht in his petition, finding that if Specht's counsel had argued on appeal that Specht's convictions and sentences for both murder and robbery as a Class A felony violate principles of double jeopardy, the Class A felony would have been reduced or the murder conviction would have been vacated. As such, the court ordered that Specht's conviction for robbery as a Class A felony be vacated, that judgment of conviction be entered for robbery as a Class C felony, and that Specht be re-sentenced appropriately. In all other respects the court denied Specht's petition for post-conviction relief. It is from this partial denial of post-conviction relief that Specht now appeals. Discussion and Decision A defendant who has exhausted the direct appeal process may challenge the correctness of his convictions and sentence by filing a post-conviction petition. Carew v. State, 817 N.E.2d 281, 285 (Ind. Ct. App. 2004), trans. denied. Post-conviction

procedures do not provide an opportunity for a "super-appeal"; rather, they create a 5

narrow remedy for subsequent collateral challenges to convictions that must be based on grounds enumerated in the post-conviction rules. Id. Generally, "complaints that

something went awry at trial are generally cognizable only when they show deprivation of the right to effective assistance of counsel or issues demonstrably unavailable at the time of trial or direct appeal." Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002). Postconviction proceedings are civil proceedings, so a defendant must establish his claims by a preponderance of the evidence. Carew, 817 N.E.2d at 285. A petitioner who appeals the denial of post-conviction relief faces a rigorous standard of review. Benefiel v. State, 716 N.E.2d 906, 911 (Ind. 1999), reh'g denied. The reviewing court may consider only the evidence and the reasonable inferences supporting the judgment of the post-conviction court. Blunt-Keene v. State, 708 N.E.2d 17, 19 (Ind. Ct. App. 1999). Furthermore, while we do not defer to the post-conviction court's legal conclusions, we accept its factual findings unless they are clearly erroneous. Carew, 817 N.E.2d at 285. To prevail on appeal, the petitioner must establish that the evidence is uncontradicted and leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. Prowell v. State, 741 N.E.2d 704, 708 (Ind. 2001). In this appeal, Specht argues that the post-conviction court erred by failing to find that his counsel were ineffective on all of the issues that he raised in his petition. As with his petition for post-conviction relief, the claimed errors fall into two categories: ineffective assistance of trial counsel and ineffective assistance of appellate counsel. I. Ineffective Assistance of Trial Counsel 6

Specht contends that his counsel were ineffective at trial. We review claims of ineffective assistance of trial counsel under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984), reh'g denied. Carew, 817 N.E.2d at 285-86. First, the petitioner must demonstrate that counsel's performance was deficient because it fell below an objective standard of reasonableness and denied the petitioner the right to counsel guaranteed by the Sixth Amendment to the United States Constitution. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002), reh'g denied. Second, the petitioner must demonstrate that he was prejudiced by his counsel's deficient performance. Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002), reh'g denied. To demonstrate prejudice, a petitioner must demonstrate a reasonable probability that the result of the proceeding would have been different if his counsel had not made the errors. Id. A probability is reasonable if our confidence in the outcome has been undermined. Id. If we can easily dismiss an ineffective assistance claim based upon the prejudice prong, we may do so without addressing whether counsel's performance was deficient. Id. We presume that counsel is competent and provided adequate assistance, and the defendant must present strong and convincing evidence to rebut this presumption. Smith, 765 N.E.2d at 585; Winters v. State, 698 N.E.2d 1197, 1198 (Ind. Ct. App. 1998), reh'g denied, trans. denied. We give deference to counsel's choice of strategy and tactics. Smith, 765 N.E.2d at 585. "Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective." Id. And because we presume competence on the part of a lawyer, an action or omission that is within the 7

range of reasonable attorney behavior can only support a claim of ineffective assistance if that presumption is overcome by specific evidence as to the performance of the particular lawyer. Morgan v. State, 755 N.E.2d 1070, 1074 (Ind. 2001). Specht raises three issues concerning the performance of his counsel at trial. Specifically, he contends that his counsel erred by failing to: (1) object to the jury instructions on accomplice liability on the proper grounds and tender proper instructions; (2) object to the prosecutor's alleged "misstatements of law"; and (3) challenge the sufficiency of the evidence supporting his attempted murder and murder convictions through a motion for judgment on the evidence. We address each issue in turn. A. Accomplice Liability Instructions Specht acknowledges that his counsel did make objections to the accomplice liability jury instructions at trial. However, he alleges that the objections were made on improper grounds and were therefore inadequate, and that if his counsel had made the proper objections and tendered the proper instructions, there is a reasonable probability that the objections would have been sustained, the tendered instructions would have been given, and the result of his trial would have been different. 1. "Knowingly or Intentionally" Requirement Specht contends that his counsel were ineffective in failing to object to the accomplice liability instructions on the ground that they violated his due process rights. Due process requires the State to prove every element of an offense beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 524 (1979). Because Specht was

prosecuted on an accomplice liability theory, the State was required to prove that Specht 8

knowingly or intentionally aided, induced, or caused Schmitt to commit the offenses. See Ind. Code

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