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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.

ATTORNEYS FOR APPELLANT: STEVE CARTER Attorney General of Indiana CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: SUSAN K. CARPENTER Public Defender of Indiana JAMES T. ACKLIN Deputy Public Defender Indianapolis, Indiana

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

No. 49A02-0509-PC-901

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Nancy Broyles, Master Commissioner Cause No. 49G05-9608-PC-120978

August 30, 2006 MEMORANDUM DECISION - NOT FOR PUBLICATION

SHARPNACK, Judge

The State of Indiana appeals the post-conviction court's grant of post-conviction relief to Paul Trice. The State raises one issue, which we restate as whether the postconviction court erred when it found Trice received the ineffective assistance of trial and appellate counsel. We affirm in part, reverse in part, and remand. The relevant facts from Trice's direct appeal follow. On August 11, 1996, Nathan Williams and Welby Hendrickson drove to 2800 North Kenwood in Indianapolis, where the D'Ware gang was known to sell drugs. Upon arrival, they observed Paul "Champ" Trice, Derrick "Little D" Proctor and several other unidentified individuals drinking liquor. Proctor and his companions approached Williams's vehicle and placed a bottle of liquor and a beer on the roof. An unidentified person then sold cocaine to Williams and Hendrickson. As Williams drove away, Proctor whistled for him to stop. The drinks fell from the roof of the vehicle as it came to a stop. Proctor demanded that Williams and Hendrickson pay for the liquor. When they refused, Proctor reached through the open car window and struck Williams. Proctor, Trice and several others then pulled Williams from the car and beat him while Hendrickson fled the scene. Sometime thereafter, Hendrickson returned to the scene of the beating and found Williams lying unconscious next to his vehicle. Hendrickson was unable to revive Williams, whose jewelry and shoes were missing. After a local resident called the police, Indianapolis Police Officer Timothy Snyder arrived and radioed for an ambulance. Williams was then transported to an Indianapolis hospital where he remained comatose for nearly three weeks. Williams was later moved to a nursing home where he underwent rehabilitation. Eventually, Williams was released but has been unable to return to work because of his injuries. During their investigation, the police identified Proctor's fingerprints on the automobile and Trice's fingerprints on the liquor bottle. Hendrickson informed the police that Williams had been beaten by "Champ" and "Little D," and he then identified the two men in a photo array. Subsequently, Indianapolis Police Officer Scott Sitton identified Proctor and Trice as members of the D'Ware gang. Trice v. State, 693 N.E.2d 649, 650 (Ind. Ct. App. 1998). 2

The State charged Trice with robbery as a class A felony, 1 aggravated battery as a class B felony, 2 criminal gang activity as a class D felony, 3 and being an habitual offender. 4 Id. After a jury trial, Trice was convicted of aggravated battery and criminal gang activity but acquitted of robbery and was found to be an habitual offender. Id. Trice was sentenced to twenty years for aggravated battery. Id. That sentence was enhanced by thirty years based on the determination that Trice was an habitual offender. Id. Trice also received a concurrent sentence of one and one-half years for the criminal gang activity conviction for a total sentence of fifty years. Id. On direct appeal, Trice argued that the evidence was insufficient to sustain his convictions for aggravated battery and criminal gang activity and that his sentence was manifestly unreasonable. Id. This court held that the evidence was sufficient to sustain Trice's conviction for aggravated battery and that his sentence was not manifestly unreasonable. Id. at 651-652. However, regarding the criminal gang activity conviction, we held: [T]he State presented no evidence that the battery was gang related. Rather, the evidence shows that after his alcoholic beverages fell from the roof of the car, Trice spontaneously beat Williams for causing the liquor to

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Ind. Code

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