MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Oct 02 2017, 5:39 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Brian E. Graves Curtis T. Hill, Jr.
Carlisle, Indiana Attorney General of Indiana
Justin F. Roebel
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian E. Graves, October 2, 2017
Appellant-Petitioner, Court of Appeals Case No.
16A01-1703-PC-600
v. Appeal from the Decatur Circuit
Court
State of Indiana, The Honorable Timothy B. Day,
Appellee-Respondent. Judge
Trial Court Cause No.
16C01-1303-PC-182
Bailey, Judge.
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Case Summary
[1] Brian E. Graves (“Graves”) appeals the partial denial of his petition for post-
conviction relief, challenging his conviction for Escape, as a Class B felony.1
We affirm.
Issue
[2] Graves articulates issues concerning joinder of offenses, due process, speedy
trial rights, and assistance of counsel. We address the issue that is not waived,
res judicata, or procedurally defaulted,2 that is: whether Graves was denied the
effective assistance of trial and appellate counsel due to failure to challenge his
prosecution in Decatur County pursuant to Indiana’s successive prosecution
statute.3
Facts and Procedural History
1
Ind. Code § 35-44-3-5(a), recodified at Ind. Code § 35-44.1-3-4. Graves’s adjudication as a habitual offender
was vacated by the post-conviction court.
2
Post-conviction proceedings do not afford the petitioner a “super appeal”; rather, subsequent collateral
challenges must be based on grounds enumerated in Post-Conviction Rule 1. Williams v. State, 808 N.E.2d
652, 659 (Ind. 2004). If an issue was known and available but not raised on direct appeal, it is procedurally
defaulted as a basis for relief in subsequent proceedings. Id. If an issue was raised and decided adversely, it is
res judicata. Id. If not raised on direct appeal, the issue of ineffectiveness of counsel is properly presented in
a post-conviction proceeding but, as a general rule, most free-standing claims of error are not available in a
post-conviction proceeding because of the doctrines of waiver and res judicata. Id.
3
I.C. § 35-34-1-4.
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[3] Events occurring on February 7, 2010 gave rise to Graves’s convictions of
crimes in two Indiana counties. Graves was brought to trial in Decatur County
after he was convicted in Shelby County of Resisting Law Enforcement and
had served, or substantially served, the related sentence. The facts underlying
Graves’s convictions were recited by a panel of this Court on direct appeal as
follows:
[O]n the cold and snowy evening of February 7, 2010 Indiana
State Police Trooper Christopher Howell began to patrol
Interstate 74 looking for drivers who might be stranded due to the
inclement weather. The trooper observed Graves’s truck parked
in the emergency pull-off lane on the interstate. Graves was
standing at the front of the vehicle. When Trooper Howell
stopped to investigate, he asked Graves what he was doing.
Graves replied that he was scraping ice from his windshield.
Trooper Howell, who observed that there was nothing in
Graves’s hands, noted that Graves’s words were slurred and he
was unsteady on his feet. At this point, Howell was standing in
front of his police cruiser, which in turn was stopped behind
Graves’s truck. He asked Graves to come to him. Graves
initially refused and told the trooper he was going to “take off.”
Transcript at 34. In response, Trooper Howell issued a “loud
command” to Graves to walk to the trooper. Id. This time,
Graves complied. The trooper patted down Graves and asked
where he had been and where he was going. When Graves
responded, Trooper Howell detected the odor of alcohol on his
breath. He asked if Graves had been drinking and Graves said he
had not. Trooper Howell asked for Graves’s identification and
registration and was informed that they were in the truck. He
escorted Graves to the vehicle and watched as Graves retrieved
his wallet and began looking through its contents. He noted that
Graves had an Indiana identification card, which signified to the
trooper either that Graves did not have a driver’s license, or that
his license was suspended. He asked Graves about the status of
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his license and Graves responded that it had been suspended for
nonpayment of parking tickets. Graves was not able to produce
any of the other requested documentation. At that point, because
of the weather and conditions, Trooper Howell asked Graves to
sit in the front passenger seat of his police cruiser while he
verified Graves’s information.
After the two were seated inside the cruiser, Trooper Howell
began running Graves’s information on a laptop computer
located between the two of them such that both Howell and
Graves could see the information displayed on the screen. When
the laptop began to emit audible alert tones and display Graves’s
information, Graves was looking at the screen and reading the
information along with Trooper Howell. Among the information
on the screen was an indication that Graves was wanted on four
open warrants. After a few seconds, Graves “turned his head
and said sorry, I gotta go.” Id. at 39. He then opened the door
and, according to Howell, “out he went.” Id. Trooper Howell at
first just sat there, “dumbfounded.” Id. at 40. He saw Graves
start toward his truck, and then the trooper exited his car and ran
to intercept Graves. During the ensuing scuffle, the trooper
repeatedly commanded Graves to “stop resisting” and told him,
“You need to stop.” Id. at 74. He grabbed Graves while they
were between the vehicles, but Graves slipped from his grasp and
continued to the front passenger side of his truck. Trooper
Howell decided to run around the driver’s side of the truck and
intercept Graves from that direction. He caught Graves near the
front of the vehicle. Graves pushed Howell, who fell backward
and hit his head and was stunned for a moment. By the time
Howell recovered, Graves had climbed into the driver’s seat of
the truck, but the door was still open when Howell got to him
and began pulling on Graves, attempting to extricate him from
the truck. He continued pulling Graves by the coat and ordering
him to get out of the truck and to quit resisting. At some point,
Graves managed to get his truck into gear, stepped on the gas,
and began driving away. When he did, the forward motion
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caused the door to shut on Trooper Howell’s left hand, injuring
one of his fingers badly enough that it later required stitches.
Trooper Howell hung on “for a little bit” but soon let go. Id. at
42. He called the State Police Post and gave them Graves’s
description and a description of his truck. That description was
relayed to law enforcement officials in the area.
Approximately ten minutes later, Deputy Joseph Mohr of the
Shelby County Sheriff’s Department observed Graves driving on
I-74. After ascertaining that the truck matched the description of
the subject vehicle, Deputy Mohr initiated a traffic stop. Graves
sped away and threw several items out of the window before he
eventually stopped after a chase. He was ultimately convicted of
escape as a class B felony, resisting law enforcement as a class D
felony, and found to be a habitual offender.
Graves v. State, No. 16A01-1205-CR-227, slip op. at 1-2 (Ind. Ct. App. Nov. 8,
2012), trans. denied.4
[4] Graves was sentenced to twenty years of imprisonment, enhanced by thirty
years due to his status as a habitual offender. On direct appeal, Graves
challenged the sufficiency of the evidence supporting his conviction for Escape.
This Court affirmed the conviction, and the Indiana Supreme Court denied
transfer. Graves v. State, 981 N.E.2d 58 (Ind. 2013).
[5] On March 24, 2013, Graves filed a petition for post-conviction relief, which was
subsequently amended to include claims of free-standing error, allegations as to
4
The trial court vacated Graves’s conviction for Resisting Law Enforcement.
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ineffectiveness of counsel, and Graves’s contention that he had not been
afforded proper advisements before admitting to his status as a habitual
offender. The State responded, admitting that Graves had not received
advisements to which he was due. After a hearing conducted on February 22,
2016 and January 12, 2017, the post-conviction court entered an order vacating
the habitual offender enhancement and otherwise denying Graves post-
conviction relief. This appeal ensued.
Discussion and Decision
Post-Conviction Standard of Review
[6] The petitioner in a post-conviction proceeding bears the burden of proving the
grounds for relief by a preponderance of the evidence. Humphrey v. State, 73
N.E.3d 677, 681 (Ind. 2017). On appeal, the petitioner then stands in the
position of one appealing a negative judgment; that is, he or she must show that
the evidence leads unerringly and unmistakably to a conclusion opposite that
reached by the post-conviction court. Id. We do not defer to the post-
conviction court’s legal conclusions, but 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. Id. at 682.
Ineffectiveness Standard of Review
[7] Here, Graves alleges that his trial and appellate counsel were ineffective for
failing to argue that his prosecution for Escape was an improper successive
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prosecution. When evaluating an ineffective assistance of counsel claim, we
apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668
(1984). See Humphrey, 73 N.E.3d at 682. 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 ‘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). 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 proceeding would
have been different.” Id. (citing Strickland, 466 U.S. at 694).
Trial Counsel
[8] At the outset, we observe that Graves’s trial counsel filed a pre-trial motion
captioned “Motion to Dismiss (Barred by Prior Prosecution/Double
Jeopardy).” (P.C-R. App. at 11.) The motion drafted by trial counsel included
arguments that Graves’s prosecution in Decatur County violated the double
jeopardy protections of the United States and Indiana Constitutions. It was
further alleged that the prosecution “is barred by I.C. 35-41-4-3” and that the
acts were part of “one continuous event.” (P.C-R. App. at 11.) A hearing was
conducted on the motion to dismiss and the trial court denied Graves the relief
he sought. Graves may not obtain post-conviction relief on a claim that trial
counsel was ineffective due to a purported omission of a successive prosecution
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claim when counsel asserted and argued the merits of such a claim but simply
did not prevail.
[9] Graves also argues that “charges [in Shelby County and Decatur County]
should have been filed at the same time” and “trial counsel erred in not
addressing this issue.” Appellant’s Brief at 18. It appears that Graves believes
that it would have enhanced his position in plea bargaining if all charges were
subject to disposition at the same time.
[10] Criminal actions must be tried in the county where the offense was committed,
unless otherwise permitted by law. Navaretta v. State, 726 N.E.2d 787, 789 (Ind.
2000). See also Ind. Code § 35-32-2-1 (governing situations where the county of
commission cannot be ascertained). Under our statutory scheme, one county
may not dispose of charges or try a defendant for criminal offenses known to
have been committed in another county. See id. To the extent that Graves
suggests that individual county prosecutors have an obligation to coordinate
filing of charges or conduct trials simultaneously with another county
prosecutor, he offers no relevant authority for this proposition.
Appellate Counsel
[11] Although trial counsel preserved the issue for appeal, appellate counsel did not
present an issue regarding successive prosecution. The standard of review for a
claim of ineffectiveness of appellate counsel is the same as for trial counsel, in
that the petitioner must show appellate counsel was deficient in performance
and that the deficiency resulted in prejudice. Ritchie v. State, 875 N.E.2d 706,
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723 (Ind. 2007). Such claims generally fall into three basic categories: (1)
denial of access to an appeal, (2) waiver of issues, and (3) failure to present
issues well. Id. Here, the second category is implicated.
[12] In such cases, ineffectiveness is rarely found because “the decision of what
issues to raise is one of the most important strategic decisions to be made by
appellate counsel.” Id. at 724 (citing Bieghler v. State, 690 N.E.2d 188, 193 (Ind.
1997)). Accordingly, our review is particularly deferential to counsel’s strategic
decision to exclude certain issues in favor of others. Id. First, we look to see
whether the unraised issues were significant and obvious upon the face of the
record. Id. If so, then we compare these obvious issues to those raised by
appellate counsel, finding deficient performance only when the unraised issues
are clearly stronger than the issues presented. Id. If deficient performance is
found, we next turn to the prejudice prong to determine whether the omitted
issues would have been clearly more likely to result in reversal or an order for a
new trial. Id.
[13] Specifically, Graves contends that his appellate counsel should have argued that
his prosecution in Decatur County was a prohibited successive prosecution
because the Escape offense was part of the “same scheme or plan” as the Shelby
County Resisting Law Enforcement offense. Appellant’s Brief at 18-19. We
turn to consider whether this was a significant and obvious issue.
[14] Pursuant to Indiana Code Section 35-41-4-4(a), a prosecution is barred if all the
following exist:
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(1) There was a former prosecution of the defendant for a
different offense or for the same offense based on different
facts.
(2) The former prosecution resulted in an acquittal or a
conviction of the defendant or in an improper termination
under section 3 of this chapter.
(3) The instant prosecution is for an offense with which the
defendant should have been charged in the former
prosecution.
[15] The words “should have been charged” of subsection (a)(3) are to be read in
conjunction with Indiana’s joinder statute. Williams v. State, 762 N.E.2d 1216,
1219 (Ind. 2002). The joinder statute provides in relevant part:
A defendant who has been tried for one (1) offense may
thereafter move to dismiss an indictment or information for an
offense which could have been joined for trial with the prior
offenses under section 9 of this chapter. The motion to dismiss
shall be made prior to the second trial, and shall be granted if the
prosecution is barred by reason of the former prosecution.
Ind. Code § 35-34-1-10(c).
[16] In turn, section 9 provides in relevant part:
Two (2) or more offenses may be joined in the same indictment
or information, with each offense stated in a separate count when
the offenses … (2) are based on the same conduct or on a series
of acts connected together or constituting parts of a single scheme
or plan.
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Where two or more charges are based on the same conduct or on a series of acts
constituting parts of a single scheme or plan, they should be joined for trial and
when the State brings multiple prosecutions for a series of acts constituting parts
of a single criminal transaction, it does so at its own peril. Williams, 762 N.E.2d
at 1219. To determine whether contemporaneous crimes are part of a single
scheme or plan, we examine “whether they are connected by a distinctive
nature, have a common modus operandi, and a common motive.” Id. at 1220
(quoting Henderson v. State, 647 N.E.2d 7, 10 (Ind. Ct. App. 1995)).
[17] In Williams, defendant Williams faced charges in two different Marion County
courts based upon an incident where Williams sold cocaine to an undercover
police officer, the officer allowed Williams to leave but immediately radioed to
arrange his arrest by uniformed officers, and Williams fled to a nearby vacant
apartment where he was apprehended and found to have rock cocaine in his
sock. 762 N.E.2d at 1217. Williams first pled guilty to the charges stemming
from breaking into the apartment and possessing cocaine in his sock; then he
was charged with Dealing in Cocaine, related to the undercover buy. The
Indiana Supreme Court concluded that the charge of Dealing in Cocaine was
barred by Indiana’s successive prosecution statute. Id. at 1219. The Court
observed that the undercover officer had radioed Williams’ description and sent
another officer in pursuit and that Williams had testified he took only a few
steps before police cars arrived and he ran into an unoccupied apartment with
officers in pursuit. Id. at 1220. The Court held:
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These facts show that the Court 9 and Court 20 charges were
based on a series of acts so connected that they constituted parts
of a single scheme or plan. Therefore, they should have been
charged in a single prosecution.
Id.
[18] In contrast, a panel of this Court concluded that an appellant who had fled from
multiple officers in multiple counties was not entitled to have a charge of
Resisting Law Enforcement dismissed under either Double Jeopardy principles
or the successive prosecution statute. Johnson v. State, 774 N.E.2d 1012 (Ind.
Ct. App. 2002). Lapel Police Officer Leeann Byrne tried to stop Johnson for
erratic driving but, after an initial stop, Johnson drove off into adjacent
Hamilton County. See id. at 1013. Officer Byrne stopped her pursuit due to
foggy conditions but advised dispatch of the fleeing vehicle. Within five to ten
minutes after the radio dispatch, Officer Aaron Von Housman of the
Noblesville Police Department attempted to stop Johnson. Id. Although
Johnson continued driving, he eventually stopped and was arrested a few hours
later.
[19] Johnson was convicted in Hamilton County of Operating a Vehicle While
Intoxicated and Resisting Law Enforcement. He was also charged in Madison
County with Driving While Suspended and Resisting Law Enforcement.
Johnson’s motion to dismiss was denied, and he appealed, raising issues of
Double Jeopardy and successive prosecution. See id. at 1014. The Johnson
Court first concluded that Johnson was not subjected to double jeopardy by
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prosecution of the Resisting Law Enforcement in Madison County because
“Johnson’s actions in resisting Officer Byrne and Officer Von Housman were
sufficiently separated by time and distance as to constitute two distinct, separate
offenses.” Id. at 1015. The Court then found that there had been no statutory
violation because Johnson’s crimes had been committed in multiple counties
and could not have been charged together. Thus, the requirement that “the
instant prosecution is for an offense with which the defendant should have been
charged in the former prosecution,” I.C. § 35-41-4-4(a)(3), was not satisfied.
Id.5
[20] These cases had been decided when Graves’s appellate counsel selected which
issue would be presented on direct appeal. The facts of record indicate that
Graves fled from multiple officers in multiple jurisdictions. He did not merely
take a few steps after one officer declined pursuit before being arrested by other
officers, as was the case in Williams. Rather, the facts of the instant case
substantially mirror those in Johnson. We conclude that appellate counsel did
not omit a significant and obvious issue when declining to argue that Graves
was subjected to a prohibited successive prosecution.
5
Subsequently, in Sanders v. State, 914 N.E.2d 792 (Ind. Ct. App. 2009), an appellant who had fled from
multiple officers in a lengthy chase, and had been convicted of two counts of Resisting Law Enforcement,
attempted to distinguish Johnson. Sanders did not specifically claim that the successive prosecution statute
had been violated. However, he contended that he had twice been convicted for one continuous offense,
arguing he had engaged in “one continuous act of flight from police officers” and “there was a gap of only
minutes instead of the two to three hour gap in Johnson.” Sanders, 914 N.E.2d at 794-95. The Sanders Court
concluded “in the present case, as in Johnson, there were two distinct pursuits.” Id. at 795.
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Conclusion
[21] Graves has not established that he was denied the effective assistance of trial or
appellate counsel. The post-conviction court properly denied Graves’s petition
for post-conviction relief, in part.
[22] Affirmed.
Baker, J., and Altice, J., concur.
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