MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 29 2019, 9:57 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Curtis Stokes Curtis T. Hill, Jr.
Carlisle, Indiana Attorney General of Indiana
Ian McLean
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Curtis Stokes, October 29, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-PC-2982
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marc T.
Appellee-Respondent. Rothenberg, Judge
Trial Court Cause No.
49G02-0812-PC-288158
Mathias, Judge.
[1] Curtis Stokes (“Stokes”) appeals pro se the Marion Superior Court’s order
denying his petition for post-conviction relief. Stokes argues that the post-
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conviction court erred when it determined that he was not subjected to
ineffective assistance of trial and appellate counsel.
[2] We affirm.
Facts and Procedural History
[3] The facts supporting Stokes’s convictions were summarized by our court as
follows:
On December 18, 2008, Gregory Arnold, Jr., the CEO of Big
Engine Entertainment Recording Studio (“the studio”) in
Indianapolis, was working at the studio. Also present in the
studio's building that evening were: Shontez Simmons, Edriese
Phillips (“Edriese”), Collin Moore, Fred Winfield, Michael
Cameron, Andrew Steele, Earnest Simmons (“Earnest”), Willie
Brownleee, Shantell Williams, and Arnold, Jr.'s three minor
children. All of the building's occupants were spread throughout
the building in separate rooms.
At approximately 7:00 p.m., Simmons exited the studio building
to smoke a cigarette, and she saw Antonio Walker (“Antonio”)
and Antwane Walker (“Antwane”) arriving to enter the studio.
On their way inside, Antonio and Antwane greeted Simmons,
whom they knew. Once inside, they looked around for a minute
or so and exited the building. A few minutes later, Antonio and
Antwane returned accompanied by Stokes, Johnnie Stokes
(“Johnnie”), Terry Lynem, and a man named Marcus. All of the
men entered the studio building.
Once inside, Antonio and Antwane entered a room where they
found Arnold, Jr., Winfield, Williams, and Steele. Arnold, Jr.
greeted the men, whom he knew personally, and Antonio greeted
Steele and asked Steele to exit the room with him. Steele
followed Antonio outside of the room, and Antwane was waiting
outside the room. At that point, Antonio drew a gun from his
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person and placed it forcefully against Steele's face and said, “Get
down. You know what this is.” Meanwhile, in another area of
the studio, Lynem and Marcus grabbed Edriese and demanded
his money at gunpoint. Marcus took $200 from one of Edriese's
pockets. Also, one or more of the perpetrators ordered Moore to
“get down” when gunfire erupted. Moore was shot in the
abdomen, but he was not robbed. After approximately six to
twelve shots were fired, the Walkers and other perpetrators fled
the scene.
The State charged Stokes and his codefendants with eighteen
felony counts, including robbery, attempted robbery, unlawful
possession of a firearm by a serious violent felon, battery, and
criminal recklessness. During trial, several jurors inadvertently
saw documents making reference to Stokes' incarceration
pending trial, and Stokes moved for a mistrial. The trial court
denied that motion. The trial court granted Stokes' motions for
directed verdicts on three attempted robbery counts. And a jury
found Stokes guilty of six counts of attempted robbery, one as a
Class A felony and five as Class B felonies; robbery, as a Class B
felony; criminal recklessness, as a Class C felony; carrying a
handgun without a license, as a Class A misdemeanor; and of
being an habitual offender. The trial court entered judgment
accordingly and sentenced Stokes to an aggregate term of eighty-
eight years.
Stokes v. State, 919 N.E.2d 1240, 1242–43 (Ind. Ct. App. 2010), trans. denied
(record citations and footnote omitted).
[4] Stokes appealed his convictions and argued 1) that the trial court abused its
discretion when it denied his motion for a mistrial after jurors learned that
Stokes and his codefendants were incarcerated pending trial, and 2) that the
evidence was insufficient to support each of his Class A felony attempted
robbery conviction related to Moore, his five Class B felony attempted robbery
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convictions related to Arnold, Jr., Earnest, Steele, Winfield, and Williams, and
his Class B felony robbery conviction related to Phillips. Our court concluded
that the trial court did not abuse its discretion when it denied Stokes’s motion
for a mistrial. However, this court concluded that the evidence was only
sufficient to support Stokes’s Class A attempted robbery conviction of Moore,
Class B felony robbery conviction of Phillips, and the Class B felony attempted
robbery of Steele. As to the other attempted robbery convictions, our court held
that there was no evidence that Stokes or his co-defendants had the specific
intent to rob Arnold, Jr., Winfield, or Williams, and there was no evidence that
Stokes or his co-defendants attempted to rob Earnest. Therefore, our court
reversed those four attempted robbery convictions. This result did not affect
Stokes’s eighty-eight-year aggregate sentence because his sentences on those
four counts were ordered to be served concurrent with the sentences for his
remaining convictions.
[5] On January 2, 2013, Stokes filed a petition for post-conviction relief. The State
Public Defender represented Stokes for approximately nine months but was
allowed to withdraw its appearance on September 11, 2013. Stokes’s first
petition was dismissed without prejudice on January 15, 2014. Approximately
one month later, Stokes filed a second petition, which he was allowed to
withdraw on September 18, 2015. Stokes filed his third petition for post-
conviction relief on August 11, 2016.
[6] The post-conviction court held evidentiary hearings on Stokes’s petition on
December 8, 2017, and February 20, 2018. Stokes’s trial and appellate counsel
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testified at the hearing. Stokes’s ineffective assistance claims centered around
his Class A felony attempted robbery conviction of Moore.
[7] On November 8, 2018, the post-conviction court issued an order denying
Stokes’s petition for post-conviction relief. The trial court concluded that trial
counsel was not ineffective after finding in pertinent part that
Stokes initially claims that he received ineffective assistance
because his trial counsel stipulated to the testimony of a victim. .
..
During the evidentiary hearings, Stokes pointed to a stipulation
that his trial counsel supposedly made regarding State’s witness,
Collin Moore. . . .
At the evidentiary hearing, attorney Rader (Bogar) testified that
she did not specifically remember making any stipulations in the
trial, but that generally stipulations were a common way to
streamline trials, so as to focus on central, contested issues. On
this issue, the Court finds that Stokes has not introduced the
specific terms of any such express stipulation, nor has he
introduced the witness statement to which he referred, and he has
not introduced the transcript of the evidence, so that the Court
cannot determine the context, or the gravity or the
appropriateness of any stipulation, if one actually occurred.
Without more, the Court also cannot evaluate any potential
confrontation issue, and consequently, the Court must find that
on the issue, Stokes has failed to meet his burden of proof.
***
Stokes also claims that his trial counsel was ineffective because
she did not move to dismiss the charges against him at the outset
of the case. . . . In making this argument, Stokes appears to be
focused on a notation in the Case Chronology dated December
21, 2008, which seems to indicate that no probable cause was
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found, and the defendant was ordered to be released. However,
the court notes that [the] second and third entries for the same
day, indicate that the Court made a probable cause determination
and a bond was set. Additionally, the Court notes that the Case
Chronology shows that on December 23, 2008 the Presiding
Judge, conducted an initial hearing, and specifically found
probable cause. Accordingly, the Court finds that Stokes has
simply misinterpreted the Case Chronology, and his argument
fails for this reason, alone.
Appellant’s App. Vol. 3, pp. 137–139.
[8] The trial court also concluded that Stokes’s appellate counsel was not
ineffective for failing to challenge the sufficiency of the evidence on his Class A
felony attempted robbery conviction. The trial court specifically found that
Stokes’s failure to admit, as post-conviction exhibits, the record
of proceedings and the appellate briefs from his direct appeal
make a complete review of this issue virtually impossible.
Although somewhat ambiguous on this specific issue, his
appellate attorney’s testimony at the evidentiary [hearing] seems
to at least indicate her belief that she did raise the issue. The
Court of Appeals opinion is also somewhat contradictory on this
narrow point, in that on the one hand the opinion states that
Stokes[’s] claim was “the evidence is insufficient to support each
of his five Class B felony attempted robbery convictions and his
robbery conviction,” Stokes at 1244[,] but on the other hand, the
Court of Appeals carefully and separately reviewed the
sufficiency of the evidence supporting the A felony attempted
robbery of victim Colin Moore, and found, “we hold that the
evidence is sufficient to prove that Stokes was an accomplice to
the attempted robbery of Moore. The evidence shows that Moore
was in a hallway of the recording studio when he was ordered to
“get down” and shot in the . . . [omission in the original]. The
fact that he was singled out and directly ordered to “get down”
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supports a reasonable inference that the perpetrators intended to
rob him, but were interrupted when gunfire erupted. We hold
that the evidence is sufficient to support Stokes’[s] attempted
robbery of Moore.” Stokes at 1248. Thus the inescapable
conclusion is that either Stokes’s appellate attorney did raise the
issue, or even if the Court of Appeals reviewed the issue, sua
sponte, then it is difficult to see how the result would have been
different if appellate counsel raised the same issue that was
rejected by the court. And thus this Court must conclude that
Stokes has failed to meet his burden of proof of this issue, either
because he is factually incorrect, or because raising the argument
would have been meritless, Vaughn, supra.
The Court is well aware, that [] [Stokes’s] arguments are, [] most
likely motivated by the apparent disparate treatment accorded to
him and his [co-defendants] in their direct appeals. [Stokes’s]
four [co-defendants] appealed their convictions . . . A reading of
these appellate court[] opinions shows that the results are
somewhat diverse and uneven. . . .
In the present Post-Conviction relief context, Stoke[s]’s argument
is simple and clear. He assumes that his trial counsel did not raise
the sufficiency of the evidence on the A felony attempted robbery
count, and he further contends that since one appellate court
panel found insufficient evidence [] on that count, his appellate
counsel was necessarily ineffective, because she did not also raise
the issue or did not achieve the same result. . . .
Appellant’s App. pp. 141–145. The post-conviction court ultimately concluded
that appellate counsel made strategic choices that did not fall below any
objective standard of reasonableness. Id. at 146–147.
[9] Stokes now appeals pro se the denial of his petition for post-conviction relief.
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Standard of Review
[10] Our standard of review of claims that a post-conviction court erred in denying
relief is well settled. That is, post-conviction proceedings are not “super
appeals” through which convicted persons can raise issues they failed to raise at
trial or on direct appeal. Manzano v. State, 12 N.E.3d 321, 325 (Ind. Ct. App.
2014) (citations omitted), trans. denied. Instead, post-conviction proceedings
afford petitioners a limited opportunity to raise issues that were unavailable or
unknown at trial and on direct appeal. Id. A post-conviction petitioner bears the
burden of establishing grounds for relief by a preponderance of the evidence.
Thus, on appeal from 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, the petitioner must show that
the evidence as a whole leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Id.
[11] As required by Indiana Post-Conviction Rule 1(6), the post-conviction court
entered findings of fact and conclusions of law. Therefore, we must determine if
the court’s findings are sufficient to support its judgment. Id. We review the
post-conviction court’s factual findings under a clearly erroneous standard, i.e.,
we will not reweigh the evidence or judge the credibility of witnesses, and we
will consider only the probative evidence and reasonable inferences flowing
therefrom that support the post-conviction court’s decision. Id. We do not defer
to the post-conviction court’s legal conclusions, which are reviewed de novo.
Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002).
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I. Ineffective Assistance of Trial Counsel
[12] Stokes argues that his trial counsel was ineffective. In Timberlake v. State, our
supreme court summarized the law regarding claims of ineffective assistance of
trial counsel as follows:
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). First, the
defendant must show that counsel's performance was deficient.
This requires a showing that counsel’s representation fell below
an objective standard of reasonableness, 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. Second, the
defendant must show that the deficient performance prejudiced
the defense. 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. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Counsel is afforded considerable discretion in choosing strategy
and tactics, and we will accord those decisions deference. A
strong presumption arises that counsel rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment. 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. 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.
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753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations omitted).
[13] First, Stokes argues that his trial counsel was ineffective for stipulating to the
admission of Collin Moore’s statement. Moore was shot during the robbery,
and as a result, Stokes was convicted of Class A felony attempted robbery.
[14] Stokes did not introduce the record of his criminal trial into evidence.1
Therefore, a copy of the stipulation has not been included in the record in the
post-conviction proceedings. Stokes’s trial counsel had no specific recollection
of the stipulation.2 Tr. p. 8. Stokes introduced, and the post-conviction court
1
In his brief, Stokes claims that “[d]uring one of the hearings that was scheduled and continued, the Court
took judicial notice of its records and informed Stokes that the trial record would be considered.” Appellant’s
Br. at 12. There is no evidence in the record to support this claim, and the trial court found otherwise. See
Appellant’s App. Vol. 3, p. 138.
2
Stokes’s co-defendant Lynem raised this same issue in his petition for post-conviction relief, which the post-
conviction court denied. Lynem appealed, and our court engaged in a discussion of the stipulation in a
nonpublished memorandum decision as follows:
[The post-conviction court] found that Moore was unable to testify at trial; “[i]n lieu of
his live testimony, the trial counsels and the State entered into a joint stipulation
regarding his testimony” admitted at trial as State’s Exhibit 75; the stipulation indicated
Moore would have testified that he was present at the incident at the studio, during which
he was ordered to the ground, heard multiple gunshots, and suffered a gunshot wound;
and the stipulation also provided that no property was taken from Moore and he was
unable to identify any of the people who perpetrated the crime. The court found “it is
apparent that entering into this stipulation was trial strategy that was pursued by all five
attorneys who represented the defendants in the case.” It found the stipulation was “a
reasonable trial strategy which mitigated as much risk as was possible in the
circumstances,” the record indicates Moore was unavailable “primarily due to health
issues directly stemming from the crimes,” and “[f]rom a defense standpoint, ... the
stipulation as entered, presented his probable testimony by which he averred to the
obvious fact that he was injured in the incident, but while also acknowledging that he was
unable to identify any of the [sic] also while removing the specter of possibly emotional
impact of video testimony from a paralyzed crime victim.”
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admitted, Moore’s statement to the police and the testimony of the detective
who took the statement. Moore’s statement does not include any evidence
exonerating Stokes as he claims in his brief.
[15] Specifically, the investigating detective did not ask Moore if he knew Stokes or
whether Stokes participated in the robbery. Moore told the detective that he did
not know how many men participated in the offense. He stated that he laid
down on the ground of the hallway, covered his head, and faced the wall. He
tried not to look at the suspects because they had guns. He did not recognize
any of the suspects that he saw. The detective then showed Moore several
photo arrays. Moore recognized individuals in the photo arrays but stated that
those individuals were not the persons who committed the crimes at the
recording studio on the date he was shot. Ex. Vol., Petitioner’s Ex. A. From
Moore’s statement, it is reasonable to infer that Moore did not see every
individual involved in the commission of the offense.
[16] Stokes’s claim that his trial counsel violated his right to confrontation by
stipulating to Moore’s testimony cannot be addressed because he failed to
introduce his criminal trial record into evidence. Without that record, we are
left with Moore’s statement to the investigating detective, which does not
support Stokes’s claims that he was prejudiced. The post-conviction court
Lynem v. State, 18A-PC-1028, 2019 WL 2588282 *3 (Ind. Ct. App. June 25, 2019) (record citations omitted).
Our court affirmed the post-conviction court’s finding that Lynem was not subjected to ineffective assistance
of trial counsel for stipulating to Moore’s testimony.
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properly found that “the Court cannot determine the context, or the gravity or
the appropriateness of any stipulation, if one actually occurred. Without more,
the Court also cannot evaluate any potential confrontation issue, and
consequently” Stokes has not met his burden of proving ineffective assistance of
trial counsel. See Appellant’s App. Vol. 3, p. 138.
[17] Stokes also complains that his trial counsel was ineffective because she failed to
file a motion to dismiss the charges based on a lack of probable cause.
However, as the post-conviction court noted, in support of this argument,
Stokes cites to an entry in the Chronological Case Summary that Stokes has
misinterpreted. It is clear from the entries that follow that a judicial officer
found that there was probable cause to arrest Stokes for the charged offenses.
Appellant’s App. Vol. 2, p. 3.
[18] For all of these reasons, we conclude that Stokes has not met his burden of
proving that his trial counsel was ineffective.
II. Ineffective Assistance of Appellate Counsel
[19] Stokes also claims that the post-conviction court clearly erred by rejecting his
claim of ineffective assistance of appellate counsel. When we review claims of
ineffective assistance of appellate counsel, we use the same standard we apply
to claims of ineffective assistance of trial counsel, i.e., the petitioner must show
that appellate counsel’s performance fell below an objective standard of
reasonableness and that there is a reasonable probability that, but for the
deficient performance of counsel, the result of the proceeding would have been
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different. Manzano, 12 N.E.3d at 329 (citing Harris v. State, 861 N.E.2d 1182,
1186 (Ind. 2007)).
[20] We also reiterate that when the claim of deficient performance is one of
inadequate presentation of issues, the claim of ineffective assistance almost
always fails. Bieghler v. State, 690 N.E.2d 188, 195 (Ind. 1997). As explained by
the Bieghler court:
First, these claims [of inadequate presentation of issues]
essentially require the reviewing tribunal to re-view specific issues
it has already adjudicated to determine whether the new record
citations, case references, or arguments would have had any
marginal effect on their previous decision. Thus, this kind of
ineffectiveness claim, as compared to the others mentioned, most
implicates concerns of finality, judicial economy, and repose
while least affecting assurance of a valid conviction.
Second, an Indiana appellate court is not limited in its review of
issues to the facts and cases cited and arguments made by the
appellant’s counsel. We commonly review relevant portions of
the record, perform separate legal research, and often decide
cases based on legal arguments and reasoning not advanced by
either party. While impressive appellate advocacy can influence
the decisions appellate judges make and does make our task
easier, a less than top notch performance does not necessarily
prevent us from appreciating the full measure of an appellant's
claim, or amount to a breakdown in the adversarial process that
our system counts on to produce just results.
***
When the issues presented by an attorney are analyzed,
researched, discussed, and decided by an appellate court,
deference should be afforded both to the attorney's professional
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ability and the appellate judges’ ability to recognize a meritorious
argument.
For these reasons, an ineffectiveness challenge resting on
counsel's presentation of a claim must overcome the strongest
presumption of adequate assistance. Judicial scrutiny of counsel's
performance, already highly deferential, is properly at its highest.
Relief is only appropriate when the appellate court is confident it
would have ruled differently.
Id. at 195–96 (emphasis added) (citations and internal quotations omitted).
[21] In his direct appeal, our court addressed Stokes’s claims of insufficient evidence
to support his attempted robbery convictions. See Stokes, 919 N.E.2d at 1245–
48. This court concluded that the evidence was sufficient to prove that Stokes
was an accomplice to the attempted robbery of Moore.3 Specifically, we
observed that
3
Co-defendant Antwane Walker raised the same claims in his direct appeal. As in Stokes’s direct appeal, our
court affirmed his attempted robbery conviction related to victim Moore but reversed the Class B felony
attempted robbery convictions related to victims Arnold Jr., Winfield, Williams, and Phillips. See Antwane
Walker v. State, 49A02-0905-CR-432, 2010 WL 1462065 at *7–10 (Ind. Ct. App. April 13, 2010), trans. denied.
Only Johnnie Stokes received relief on direct appeal with regard to the Class A felony attempted robbery
conviction. Chief Judge Vaidik dissented from that opinion and would have affirmed the conviction for the
attempted robbery of Moore. See Johnnie Stokes v. State, 922 N.E.2d 758 (Ind. Ct. App. 2010), trans. denied.
Co-defendant Antwane Walker did not challenge the sufficiency of the evidence in his direct appeal. In post-
conviction proceedings, he argued that his appellate counsel was ineffective for failing to raise the issue. The
trial court denied his petition, and our court affirmed. See Antwane Walker v. State, No. 49A02-1112-PC-1173,
2012 WL 2928474 (Ind. Ct. App. July 19, 2012), trans. denied. In his direct appeal, co-defendant Lynem
unsuccessfully claimed that victim Edriese Phillips’s testimony was incredibly dubious and inconsistent. In
his post-conviction proceedings, he argued that appellate counsel “was ineffective in his decision not to
broaden the insufficiency of the evidence argument as to all of his attempted robbery charges[.]”Lynem v.
State, 18A-PC-1028, 2019 WL 2588282 (Ind. Ct. App. June 25, 2019). The trial court denied his petition for
post-conviction relief, and our court affirmed after concluding that it was not unreasonable “for his appellate
counsel to conclude that the evidence supports at least a reasonable inference that the co-defendants had
intent to rob Arnold Jr., Winfield, Williams, Earnest Phillips, and Moore[.]” Id. at *7.
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[t]he evidence shows that Moore was in a hallway of the
recording studio when he was ordered to “get down” and shot in
the abdomen. The fact that he was singled out and directly
ordered to “get down” supports a reasonable inference that the
perpetrators intended to rob him, but were interrupted when
gunfire erupted. We hold that the evidence is sufficient to support
Stokes’ attempted robbery of Moore.
Id. at 1248.
[22] The insufficient evidence claim was therefore raised and addressed by our court
in Stokes’s direct appeal. Stokes argues that his appellate counsel must have
been ineffective because another panel of court concluded that co-defendant
Johnnie Stokes’s Class A felony attempted robbery conviction relating to victim
Moore was not supported by sufficient evidence. Chief Judge Vaidik dissented
and would have affirmed the conviction. He also argues that our court should
revisit the issue to correct a manifest injustice. See Appellant’s Br. at 14.
[23] Our court does not follow horizontal stare decisis. Therefore, “each panel of
this Court has coequal authority on an issue and considers any previous
decisions by other panels but is not bound by those decisions.” Smith v. State, 21
N.E.3d 121, 126 (Ind. Ct. App. 2014) (emphasis in original). This court’s
opinion in Stokes’s direct appeal was decided before another panel of our court
reversed Johnnie’s Stokes’s Class A felony attempted murder conviction. See
Johnnie Stokes, 922 N.E.2d at 764. Our supreme court denied transfer in both
cases, implicitly declining to address the opposite results reached by two panels
of our court. While Stokes is understandably frustrated that Johnnie Stokes
obtained the precise relief that he also sought on direct appeal, we cannot
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conclude that the differing results constitute manifest injustice or that Stokes
was subjected to ineffective assistance of appellate counsel.
Conclusion
[24] Stokes has not established that he was subjected to ineffective assistance of trial
or appellate counsel. We therefore affirm the trial court’s order denying Stokes’s
petition for post-conviction relief.
[25] Affirmed.
Robb, J., and Pyle, J., concur.
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