Gallien v. State, 22A01–1402–PC–50.
| Decision Date | 21 October 2014 |
| Docket Number | No. 22A01–1402–PC–50.,22A01–1402–PC–50. |
| Citation | 19 N.E.3d 303 |
| Parties | Gary A. GALLIEN, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent. |
| Court | Indiana Appellate Court |
Gary Gallien appeals the post-conviction court's denial of his petition for post-conviction relief. We reverse and remand.
Gallien raises one issue, which we restate as whether he was denied the effective assistance of appellate counsel.
The facts, as stated in Gallien's direct appeal, follow:
Early in the morning on April 15, 2007, Gallien and two cohorts drove a stolen vehicle to a Goodwill store in Floyds Knobs, broke into the store, and stole money and a moving dolly. The trio then drove to a tavern in Galena, broke in, and stole an automated teller machine, a change machine, and additional money. Gallien fled when Floyd County Police Officer Gene Perrot arrived, but was quickly apprehended.
Gallien v. State, No. 22A01–0712–CR–565, slip op. at 2, 2008 WL 2372905 (Ind. Ct.App. June 12, 2008). The State charged Gallien with two counts of Class C felony burglary, two counts of Class D felony theft, Class D felony receiving stolen property, and Class A misdemeanor resisting law enforcement. The State also alleged that he was an habitual offender. The State dismissed the resisting law enforcement charge, and a jury found Gallien guilty of the remaining charges. At the September 2007 sentencing hearing, Gallien's counsel argued that the burglaries were a single episode of criminal conduct under Indiana Code Section 35–50–1–2(c) and that the consecutive sentencing limitations applied. The trial court rejected that argument and sentenced Gallien to eight years on each of the burglary convictions to be served consecutively. The trial court also imposed a concurrent sentence of three years on the receiving stolen property conviction and a twelve-year enhancement for Gallien's habitual offender status. The trial court did not impose a sentence on the theft convictions due to double jeopardy concerns.
In the 2008 direct appeal, Gallien's appellate counsel raised one issue, whether the sentence was inappropriate under Indiana Appellate Rule 7(B). We held that the sentence was not inappropriate, but we remanded for the trial court to amend the sentencing order to make the sentence consecutive to any sentence remaining in a case for which he was on probation. Gallien, No. 22A01–0712–CR–565, slip op. at 3–4.
Gallien filed a petition for post-conviction relief, which he later amended. Gallien argued that he was denied the effective assistance of appellate counsel because appellate counsel should have raised the consecutive sentencing limitation of Indiana Code Section 35–50–1–2(c) on direct appeal. At the hearing, Gallien's appellate counsel testified that if he "had to do it again," he "would want to raise" the consecutive sentencing issue on direct appeal. PCR Hrg. Tr. p. 8. After the hearing, the post-conviction court entered findings of fact and conclusions of law denying Gallien's petition. The post-conviction court concluded:
Appellant's App. pp. 62–63. The post-conviction court concluded that Gallien had not "established a reasonable probability that he would prevail under any of the single episode of criminal conduct articulated tests of the appellate courts." Id. at 64. The post-conviction court concluded that the outcome of the appeal would have been the same even if Gallien's appellate counsel had raised the consecutive sentencing issue. The post-conviction court noted that "[t]hese are separate and distinct acts to burglarize two (2) separate businesses with two (2) separate victims." Id. Therefore, it concluded that application of Indiana Code Section 35–50–2–1(c) was not appropriate. Gallien now appeals.
Gallien argues that the post-conviction court's denial of his petition is clearly erroneous. A court that hears a post-conviction claim must make findings of fact and conclusions of law on all issues presented in the petition. Pruitt v. State, 903 N.E.2d 899, 905 (Ind.2009) (citing Ind. Post-conviction Rule 1(6) ). "The findings must be supported by facts and the conclusions must be supported by the law." Id. Our review on appeal is limited to these findings and conclusions. Id. Because the petitioner bears the burden of proof in the post-conviction court, an unsuccessful petitioner appeals from a negative judgment. Id. (citing P–C.R. 1(5) ). "A petitioner appealing from a negative judgment must show that the evidence as a whole ‘leads unerringly and unmistakably to a conclusion opposite to that reached by the trial court.’ " Id. (quoting Allen v. State, 749 N.E.2d 1158, 1164 (Ind.2001), cert. denied ). Under this standard of review, "[we] will disturb a post-conviction court's decision as being contrary to law only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion." Id.
On appeal, Gallien argues only that his appellate counsel was ineffective. To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his or her counsel's performance was deficient and that the petitioner was prejudiced by the deficient performance. Ben–Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) ), cert denied. A counsel's performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind.2002). To meet the appropriate test for prejudice, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Failure to satisfy either prong will cause the claim to fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.2006). Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.
Ineffective assistance of appellate counsel 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. Reed v. State, 856 N.E.2d 1189, 1195 (Ind.2006). Gallien argues that his appellate counsel failed to raise an issue on appeal, resulting in waiver. To show that counsel was ineffective for failing to raise an issue on appeal thus resulting in waiver for collateral review, the defendant must overcome the strongest presumption of adequate assistance, and judicial scrutiny is highly deferential. Id. "To evaluate the performance prong when counsel waived issues upon appeal, we apply the following test: (1) whether the unraised issues are significant and obvious from the face of the record and (2) whether the unraised issues are ‘clearly stronger’ than the raised issues." Id. (quoting Timberlake v. State, 753 N.E.2d 591, 605–06 (Ind.2001), cert. denied ). "If the analysis under this test demonstrates deficient performance, then we examine whether, ‘the issues which ... appellate counsel failed to raise, would have been clearly more likely to result in reversal or an order for a new trial.’ " Id. (quoting Bieghler v. State, 690 N.E.2d 188, 194 (Ind.1997), cert. denied ). Further, we must consider the totality of an attorney's performance to determine whether the client received constitutionally adequate assistance. Id. at 1195–96. Ineffective assistance is very rarely found in cases where a defendant asserts that appellate counsel failed to raise an issue on direct appeal. Id. at 1196. One reason for this is that the decision of what issues to raise is one of the most important strategic decisions to be made by appellate counsel. Id.
We first consider whether the consecutive sentencing issue was significant and obvious from the face of the record and whether it was clearly stronger than the issue raised on direct appeal. See id. at 1195. The statute at issue here is Indiana Code Section 35–50–1–2(c), which during the relevant time periods provided:
except for crimes of violence, the total of the consecutive terms of imprisonment, exclusive of terms of imprisonment under IC 35–50–2–8 and IC 35–50–2–10, to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the advisory sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted.
The phrase "episode of criminal conduct" means "offenses or a connected series of...
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