FILED
Feb 24 2017, 9:36 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Small Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Dowdell, February 24, 2017
Appellant-Petitioner, Court of Appeals Case No.
49A02-1604-PC-878
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt M. Eisgruber,
Appellee-Respondent. Judge
The Honorable Steven J. Rubick,
Magistrate
Trial Court Cause No.
49G01-9508-PC-120351
Najam, Judge.
Court of Appeals of Indiana | Opinion 49A02-1604-PC-878 | February 24, 2017 Page 1 of 11
Statement of the Case
[1] Michael Dowdell appeals the post-conviction court’s denial of his successive
petition for post-conviction relief. Dowdell raises one issue for our review,
which we restate as whether the post-conviction court erred when it concluded,
on the merits of Dowdell’s petition, that Dowdell did not receive ineffective
assistance from his appellate counsel. We affirm.
Facts and Procedural History
[2] The facts underlying Dowdell’s convictions and the procedural history
immediately following those convictions were stated by the Indiana Supreme
Court as follows:
Kenneth Pack and Kimberly Renee Saxton had their first date on
the evening of August 22, 1995. The two ate take-out food at
Pack’s house and then watched television. Pack’s roommate,
Lawrence Moore, was also at home but remained in his
bedroom. At about 8:30 p.m., Pack heard a knock at the door
and answered it. He saw Dowdell, whom he had known for
nearly twenty years, on the front step. When Pack opened the
door, another man stepped out from behind Dowdell and put a
gun to Pack’s head. The armed stranger led Pack to the kitchen
where he then ordered him to call for whomever was in the
house. Pack complied, and Moore and Saxton came to the
kitchen. The stranger ordered Saxton to tie up Pack and Moore,
which she did. The stranger then held the three at gunpoint
while Dowdell ransacked the house. Dowdell later returned to
the kitchen and spoke to the stranger who responded by asking
where the money was and firing a bullet into the ceiling. Pack
told the robbers that he had $200 tucked under a sofa cushion.
Dowdell returned and, according to Pack’s testimony,
“whispered something to [the stranger] and then the [stranger]
Court of Appeals of Indiana | Opinion 49A02-1604-PC-878 | February 24, 2017 Page 2 of 11
just starting shooting.” Saxton and Moore both died of the
gunshot wounds. Pack survived.
Dowdell was arrested and charged with two counts of felony
murder, one count of attempted murder, one count of robbery,
and three counts of criminal confinement. The State’s primary
witness at trial was Pack. In addition, the State called Anthony
Ross who testified that, while he was waiting in a holding cell to
appear in court in August of 1995, Dowdell told him that he and
another man had gone to Pack's house and shot the people inside
because Dowdell and a friend “had got beat out [of] some
drugs.” A jury found Dowdell guilty on all counts and the trial
court sentenced him to an aggregate term of 160 years
imprisonment. Dowdell initiated a direct appeal of his
convictions but then sought leave to pursue postconviction relief
in the trial court. Leave was granted, and Dowdell filed a
petition for postconviction relief in the trial court, which was
denied. The direct appeal was then reinstated and consolidated
with the appeal from the denial of postconviction relief.
Dowdell v. State, 720 N.E.2d 1146, 1149 (Ind. 1999) (“Dowdell I”).
[3] On the direct appeal issues raised in Dowdell I, the Indiana Supreme Court held
that the trial court abused its discretion in sentencing Dowdell because the court
had “fail[ed] to find and balance” the “significant mitigating circumstance” of
Dowdell’s lack of criminal history. Id. at 1154. As such, our supreme court
remanded to the trial court for resentencing. On the post-conviction issues, our
supreme court held that Dowdell did not receive constitutionally effective
assistance from his trial counsel. Id. at 1151. The court then remanded for the
post-conviction court to consider whether that deficient performance resulted in
prejudice to Dowdell. Id. at 1152.
Court of Appeals of Indiana | Opinion 49A02-1604-PC-878 | February 24, 2017 Page 3 of 11
[4] Thereafter, the trial court resentenced Dowdell. In particular, the trial court
sentenced him as follows:
The Court resentenced Defendant to a total executed term of 100
years, with [below-presumptive1] terms of 50 years on each of the
murders, and [the presumptive term2 of] 30 years on the
attempted murders. The [C]ourt also entered [presumptive3]
sentences of 10 years on each of the robbery and criminal
confinement counts. The Court then determined that the murder
convictions would run consecutive to each other and the other
sentences would run concurrently with the murders. As
mitigating factors[,] the [C]ourt found the defendant’s limited
criminal history, the fact that he was not the actual shooter, that
he was helping to raise a child[,] and that incarceration would be
a hardship on the child. As aggravating circumstances, the
[C]ourt found that the defendant had a relationship with one of
the victims which he exploited to gain access, the victims
recommended an aggravated sentence, and the severe injuries
suffered by the victims.
Appellant’s App. Vol. 2 at 34-35. The court then found that those aggravating
and mitigating circumstances “balance[d].” Dowdell v. State, No. 49A05-0008-
CR-353, R. at 83 (Ind. Ct. App. Aug. 24, 2000). Nonetheless, the trial court
imposed consecutive sentences “based upon the violent nature of those
1
See Ind. Code § 35-50-2-3(a) (1995).
2
See id. §§ 35-42-5-1, -50-2-4.
3
See id. § 35-50-2-5.
Court of Appeals of Indiana | Opinion 49A02-1604-PC-878 | February 24, 2017 Page 4 of 11
convictions.” Id. at 84.4 As the post-conviction court in the instant matter
found, “[t]he [trial c]ourt [in resentencing] . . . determined that the consecutive
sentences were justified by the separate, additional aggravating circumstance
regarding the violent nature of the crimes.” Appellant’s App. Vol. 2 at 35
(emphasis added).
[5] Dowdell appealed his revised sentence. In relevant part, he argued that the trial
court abused its discretion when it ordered his sentences for murder to run
consecutively based on “the violent nature of the crimes” because “murder is
always violent.” Dowdell v. State, No. 49A05-0008-CR-353, slip op. at 9 (Ind.
Ct. App. Apr. 26, 2001) (“Dowdell II”). We rejected that argument and affirmed
his revised sentence. Id.
[6] In 2005, Dowdell filed a motion to correct erroneous sentence with the trial
court, which the court denied. On appeal from that judgment, Dowdell argued
that “the trial court could not impose consecutive sentences after imposing
reduced and presumptive sentences on the individual convictions.” Dowdell v.
State, No. 49A02-0511-PC-1101, slip op. at 5 (Ind. Ct. App. Aug. 9, 2006)
(“Dowdell III”). But we did not consider the merits of Dowdell’s argument on
appeal. Instead, we held that Dowdell’s alleged error was not obvious on the
face of the judgment, and, therefore, we affirmed the trial court’s denial of his
motion to correct erroneous sentence. Id. at 10 (citing Jackson v. State, 806
4
In his Reply Brief, Dowdell suggests that we should ignore the trial court’s statements during the
resentencing hearing because those statements are not reproduced in full in the court’s chronological case
summary. We reject that argument.
Court of Appeals of Indiana | Opinion 49A02-1604-PC-878 | February 24, 2017 Page 5 of 11
N.E.2d 773, 774 (Ind. 2004)). We also noted that Dowdell had not perfected a
successive petition for post-conviction relief and, accordingly, that the trial
court “had no jurisdiction” to entertain his motion to correct error as such a
petition. Id.
[7] In February of 2013, we granted Dowdell’s motion for leave to file a successive
petition for post-conviction relief. In his successive petition, Dowdell argued, in
relevant part, that his appellate counsel in Dowdell II had rendered ineffective
assistance of counsel when she did not rely on Marcum v. State, 725 N.E.2d 852
(Ind. 2000), and argue, as Dowdell had attempted to do in Dowdell III, that the
trial court erred when it ordered consecutive sentences after having imposed
presumptive or below-presumptive sentences on each of Dowdell’s convictions.
Following an evidentiary hearing, the post-conviction court found that Dowdell
did not receive ineffective assistance from his appellate counsel in Dowdell II.5
This appeal ensued.
Discussion and Decision
[8] Dowdell appeals the post-conviction court’s denial of his successive petition for
post-conviction relief. Our standard of review is clear:
The petitioner in a post-conviction proceeding bears the burden
of establishing grounds for relief by a preponderance of the
evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)
5
The post-conviction court also found that Dowdell’s argument was precluded by res judicata, but we need
not consider that alternative ground for the court’s denial of the successive petition.
Court of Appeals of Indiana | Opinion 49A02-1604-PC-878 | February 24, 2017 Page 6 of 11
(citations omitted). When appealing the denial of post-
conviction relief, the petitioner stands in the position of one
appealing from a negative judgment. Id. To prevail on appeal
from the denial of post-conviction relief, a petitioner must show
that the evidence as a whole leads unerringly and unmistakably
to a conclusion opposite that reached by the post-conviction
court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).
Further, the post-conviction court in this case made findings of
fact and conclusions of law in accordance with Indiana Post-
Conviction Rule 1(6). Although we do not defer to the post-
conviction court’s legal conclusions, “[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.” Ben-Yisrayl v. State,
729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).
Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014) (alteration original to
Campbell).
[9] In particular, Dowdell argues that he received ineffective assistance from his
appellate counsel in Dowdell II:
When evaluating an ineffective assistance of counsel claim, we
apply the two-part test articulated in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
prong, “the defendant must show deficient performance:
representation that fell below an objective standard of
reasonableness, committing errors so serious that the defendant
did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
second prong, “the defendant must show prejudice: a reasonable
probability (i.e. a probability sufficient to undermine confidence
in the outcome) that, but for counsel’s errors, the result of the
Court of Appeals of Indiana | Opinion 49A02-1604-PC-878 | February 24, 2017 Page 7 of 11
proceeding would have been different.” Id. (citing Strickland, 466
U.S. at 694, 104 S. Ct. 2052).
Id. at 274.
[10] Here, in resentencing Dowdell following our supreme court’s decision in
Dowdell I, the trial court imposed presumptive or below-presumptive sentences
for each conviction and expressly stated that the aggravators and mitigators
relied on in reaching those particular sentences were in balance. However, the
court then identified a freestanding, separate aggravator that it had not yet
considered, namely, the violent nature in which the murders had been
committed. Relying on that freestanding aggravator, the trial court ordered
Dowdell’s two sentences for murder to be served consecutively.
[11] Dowdell argues that the trial court erred when it ordered him to serve
consecutive sentences after it had imposed presumptive or below-presumptive
sentences on each count. According to Dowdell, in Marcum our supreme court
expressly concluded that consecutive sentences in such circumstances are
prohibited. Thus, Dowdell asserts that his appellate counsel in Dowdell II
rendered ineffective assistance when she did not rely on Marcum to argue that
Dowdell’s consecutive sentences should be reversed.
[12] In Marcum, the trial court found the aggravators and mitigators to balance but
nonetheless imposed consecutive sentences. The trial court in Marcum
identified no other aggravators other than those found to be in balance with the
mitigators. Our supreme court held that, “because the trial court found the
Court of Appeals of Indiana | Opinion 49A02-1604-PC-878 | February 24, 2017 Page 8 of 11
aggravating and mitigating circumstances to be in balance, there is no basis on
which to impose consecutive sentences.” 725 N.E.2d at 864. Thus, in Marcum
our supreme court remanded “with direction to impose concurrent sentences on
all counts.” Id.
[13] But Dowdell’s sentence is materially different from that considered by our
supreme court in Marcum. Rather, Dowdell’s sentence is like that considered by
this court in Gleaves v. State, 859 N.E.2d 766, 770-71 (Ind. Ct. App. 2007). In
Gleaves, we distinguished Marcum and held:
This court has consistently interpreted Marcum and its progeny to
require that[,] in order to impose consecutive sentences, the trial
court must find both at least one aggravating circumstance[] and
that the aggravators outweigh the mitigators. Here, the trial
court’s sentencing statement clearly met the first criterion . . . but
Gleaves claims it did not meet the second . . . .
When pronouncing sentence, the trial court identified Gleaves’s
criminal history as an aggravator[] but found it to be of “middle
or medium weight.” Transcript at 542. The court identified two
mitigators, Gleaves’s young age and his remorse. The court
found the aggravators and mitigators to be “very equal in their
weight.” Id. at 544. Thus, the court imposed the presumptive
sentence for each conviction.
At that point, the court turned its attention to the issue of
consecutive sentences, making the following comments and
observations:
Now, here the Court also needs to consider
concurrent and consecutive sentencing. And I
think, frankly, the facts of this case make that
Court of Appeals of Indiana | Opinion 49A02-1604-PC-878 | February 24, 2017 Page 9 of 11
decision very easy. And that is what I referred to
earlier, that the circumstances of your crime were
that you shot Kyle Harris. He retreated. And you
then shot at Laramie Dudley.
And so not only are those two very separate and
distinct acts at separate times, but, also, we have
two different victims here. And because of that, I
believe that Count I and Count II should be
consecutive to each other.
Id. at 544-45. We interpret the foregoing comments to constitute
the finding of an additional aggravating circumstance, i.e.,
multiple victims, over and above the ones already identified by
the trial court in its previous comments. As the aggravators and
mitigators were found to be in equipoise without it, it is an
exercise in simple logic to conclude that the aggravating
circumstances preponderate with the addition of this factor.
Our Supreme Court has indicated multiple victims is an
aggravating circumstance that supports the imposition of
consecutive sentences . . . . The multiple-victim aggravator
tipped the balance such that the aggravators outweighed the
mitigators[] and also justified the imposition of consecutive
sentences.
Id. at 771 (citation omitted; emphasis in original).
[14] The same sequence of events happened here when the trial court resentenced
Dowdell. The court initially identified several aggravators and mitigators,
which the court then found to be in equipoise. The court then separately found
an additional aggravator, the violent nature of the murders, which the court had
not yet considered and on which the court relied to impose consecutive
Court of Appeals of Indiana | Opinion 49A02-1604-PC-878 | February 24, 2017 Page 10 of 11
sentences. There is no question that the trial court’s reliance on the violent
nature of the offenses was a valid “nature and circumstances of the crime”
aggravator. See Ind. Code § 35-38-1-7.1(a)(2) (1995). As “an exercise in simple
logic,” it is clear that the additional aggravator “tipped the balance such that the
aggravators” in total “outweighed the mitigators[] and also justified the
imposition of consecutive sentences.” Id.
[15] Accordingly, had Dowdell’s appellate counsel in Dowdell II argued against the
imposition of consecutive sentences under Marcum, the argument would have
failed. In the language of Strickland, Dowdell’s appellate counsel did not render
deficient performance, and her performance caused no prejudice to Dowdell.
Thus, we agree with the post-conviction court that Dowdell has not
demonstrated that he received ineffective assistance from his appellate counsel.
We affirm the post-conviction court’s denial of Dowdell’s successive petition
for post-conviction relief.
[16] Affirmed.
Bailey, J., and May, J., concur.
Court of Appeals of Indiana | Opinion 49A02-1604-PC-878 | February 24, 2017 Page 11 of 11