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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.

ATTORNEY FOR APPELLANT: MATTHEW D. BARRETT Matthew D. Barrett, P.C. Logansport, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ANN L. GOODWIN Deputy Attorney General Indianapolis, Indiana

FILED
Jun 30 2011, 9:40 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
SHAWN D. DOWNS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 09A02-1011-CR-1246

APPEAL FROM THE CASS SUPERIOR COURT The Honorable Thomas C. Perrone, Judge Cause No. 09D01-0908-FD-210

June 30, 2011

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Shawn D. Downs was convicted of failure to pay support for his two children. He was placed in a community corrections program, but violated the conditions of his placement and was sent to prison. After his release, he continued his pattern of not meeting his support obligations, even when he had a job. In August 2009, the State charged him with class D felony nonsupport of a dependent child. As of May 2009, Downs owed more than $12,000 in child support. Downs pled guilty and was scheduled for a psychiatric evaluation prior to sentencing. In the interim, he was charged with four new offenses, all related to drugs or alcohol. At sentencing, the trial court cited his criminal record as an aggravating factor and sentenced him to a three-year term. Upon Downss request, the trial court concluded that if eligible, he could serve his sentence on work release. The court also ordered Downs to pay the arrearage as restitution. Downs now appeals and makes the following claims: that he received ineffective assistance of counsel, that the arrearage was miscalculated, and that the trial court committed sentencing errors. Finding no error, we affirm. Facts and Procedural History In the early 1990s, Downs began a relationship with Jennifer Beane. The couple married after Beane gave birth to S.D. in April 1996, and I.D. in July 1999. They eventually divorced, and Downs was ordered to pay child support for both children. In 2005, he was convicted of class C felony nonsupport of a dependent child and sentenced to four years

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work release. On January 2, 2007, he violated his work release conditions and was remanded to the Indiana Department of Correction ("DOC"). His child support arrearage increased during his incarceration. He was released on July 7, 2009, whereupon he obtained employment and earned approximately $18,000. Nonetheless, he did not make child support payments. On August 18, 2009, the State charged Downs with class D felony nonsupport, alleging that between August 31, 2005, and May 31, 2009, he knowingly or intentionally failed to provide support for S.D. and I.D. The State contemporaneously filed an affidavit executed by Beane, stating that as of May 31, 2009, Downs had made $0 in total direct child support payments and had an arrearage of $12,427.74. Appellants App. at 28. Downs pled guilty on January 21, 2010. While awaiting sentencing, he was charged with Xanax possession, paraphernalia possession, public intoxication, and operating while intoxicated ("OWI") endangering a person. In May 2010, he underwent a psychiatric evaluation and was diagnosed with polysubstance dependence and mood disorder not otherwise specified ("NOS"). At his November 1, 2010 sentencing hearing, Downs requested work release. The trial court found his criminal history to be a "dramatic" aggravating factor and his guilty plea to be the sole mitigating factor. Tr. at 68. The court imposed a three-year executed sentence, but specified that he could serve his term on work release if he were found to be eligible. Without objection, the trial court ordered Downs to pay Beane $12,421.74 in restitution. This appeal ensued. Additional facts will be provided as necessary.

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Discussion and Decision I. Ineffective Assistance of Counsel Downs first contends that he was denied his constitutional right to effective assistance of counsel. He bases his ineffective assistance claim on three alleged errors by his defense counsel: (1) failure to follow up regarding Downss eligibility for work release; (2) failure to interpose an "inability to pay" defense; and (3) failure to file a motion to dismiss the class D felony charge. At the outset, we note that Downs pled guilty as charged. Citing Collins v. State, 676 N.E.2d 741, 743 (Ind. Ct. App. 1996), the State argues that by pleading guilty, Downs waived the right to raise on direct appeal any ineffectiveness assistance claims that are based on his guilty plea. Although his second and third claims relate to the basis of his guilty plea, we nevertheless address all three of his claims on the merits. A defendant must satisfy two components to prevail on an ineffective assistance claim. Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005), trans. denied. He must demonstrate both deficient performance and prejudice resulting from it. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance is representation that fell below an objective standard of reasonableness, wherein counsel has "committ[ed] errors so serious that the defendant did not have the ,,counsel guaranteed by the Sixth Amendment." Brown v. State, 880 N.E.2d 1226, 1230 (Ind. Ct. App. 2008), trans. denied. We assess counsels performance based on facts that are known at the time and not through hindsight. Shanabarger v. State, 846 N.E.2d 702, 709 (Ind. Ct. App. 2006), trans. denied. "[C]ounsels performance is presumed effective, and a defendant must offer strong and convincing

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evidence to overcome this presumption." Ritchie v. State, 875 N.E.2d 706, 714 (Ind. 2007). Prejudice occurs when a reasonable probability exists that "but for counsels errors the result of the proceeding would have been different." Brown, 880 N.E.2d at 1230. We can dispose of claims upon failure of either component. Id. As stated, Downs raises his ineffective assistance claim on direct appeal. A postconviction proceeding is normally the preferred forum for adjudicating ineffective assistance claims, since the presentation of such claims often requires the development of new facts not present in the trial record. McIntire v. State, 717 N.E.2d 96, 101 (Ind. 1999). On direct appeal, we do not have the benefit of extrinsic evidence to overcome the presumption of competence; as such, "[i]t is no surprise that [ineffective assistance] claims [brought on direct appeal] almost always fail." Woods v. State, 701 N.E.2d 1208, 1216 (Ind. 1998) (citation and quotation marks omitted). In examining Downss ineffectiveness claim, we are limited to the facts contained in the record of proceedings through trial and judgment. Jewell v. State, 887 N.E.2d 939, 941 (Ind. 2008).1 First, Downs contends that defense counsel was ineffective for failing to follow up with the court and DOC concerning Downss work release eligibility. This claim is difficult to assess on direct appeal, as the record before us is devoid of any evidence regarding any

If a defendant elects to raise ineffective assistance of trial counsel "on direct appeal, the appellate resolution of the issue acts as res judicata and precludes its relitigation in subsequent post-conviction relief proceedings." Jewell, 887 N.E.2d at 941.
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steps that defense counsel did or did not take to assess such eligibility.2 Without any extrinsic evidence, we are left to speculate whether Downs remained in the DOC due to any failure by counsel to follow up or due to a determination that Downs in fact was not eligible for work release. Without such evidence, we must conclude that Downs has not overcome the presumption of competence. Likewise, without extrinsic evidence, we find it impossible to assess Downss claim that defense counsel was ineffective for not raising an inability to pay defense. At the initial hearing, defense counsel indicated that Downs intended to maintain his innocence. Subsequently, Downs pled guilty. "A petitioner alleging ineffective assistance of counsel in overlooking a defense leading to a guilty plea must show a reasonable probability that, had the defense been raised, the petitioner would not have pleaded guilty and would have succeeded at trial." Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). Without testimony from Downs and/or defense counsel concerning the reasons for Downss ultimate decision to plead guilty rather than proceed to trial, we cannot say that defense counsel overlooked an "inability to pay" defense. Likewise, to the extent Downss "inability to pay" defense was based on his previous incarceration, we note that he continued to accumulate arrearages even when he was employed in 2009 and earned nearly $18,000. In short, Downs has not presented evidence sufficient to overcome the presumption of his counsels competence regarding this possible defense.

At sentencing, community corrections representative Dave Wagner testified that he was uncertain if Downs would be eligible for work release because Downs: (a) had been arrested for drug- and alcohol-related offenses while awaiting sentencing; and (b) had wavered on whether to pursue work release at all because he did not want to pay the county fees associated with that program. Tr. at 59-60.

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Finally, Downs asserts that defense counsel was ineffective for failing to file a motion to dismiss the class D felony nonsupport charge. He argues that he was entitled to a dismissal based on double jeopardy concerns, namely that some of the arrearage in this case is carried over from his class C felony conviction for the same offense. Article 1, Section 14 of the Indiana Constitution states that "[n]o person shall be put in jeopardy twice for the same offense." Two or more offenses are deemed the same offense "if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense." Lee v. State, 892 N.E.2d 1231, 1233 (Ind. 2008) (citation and quotation marks omitted). In addition to the constitutional test, our supreme court has adhered to a series of rules of statutory construction and common law often described as double jeopardy. Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002). Among these are categories barring "[c]onviction and punishment for an enhancement of a crime where the enhancement is imposed for the very same behavior or harm as another crime for which the defendant has been convicted and punished" and "[c]onviction and punishment for a crime which consists of the very same act as another crime for which the defendant has been convicted and punished." Id. Downs asserts that certain unspecified portions of the total arrearage in this case were already included to reach the threshold amount of $15,000 to establish his conviction for class C felony nonsupport in 2005.3 As such, he argues that the same evidence (arrearage)

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