Haggard v. State, 48A02-0311-PC-980.

• Decision Date: 23 June 2004
• Docket Number: No. 48A02-0311-PC-980.,48A02-0311-PC-980.
• Citation: 810 N.E.2d 751
• Parties: Danny F. HAGGARD, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

810 N.E.2d 751

Danny F. HAGGARD, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 48A02-0311-PC-980.

Court of Appeals of Indiana.

June 23, 2004.

Susan K. Carpenter, Public Defender of Indiana, C. Brent Martin, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Danny Haggard appeals from the denial of his petition for post-conviction relief. He presents one main issue for our review, whether he received ineffective assistance of appellate counsel.¹

We affirm in part, reverse in part, and remand.

The facts relating to Haggard's conviction and sentencing as enunciated by this court in Haggard's direct appeal follow:

"On November 28, 2000, Haggard was charged with seven counts of forgery, all as Class C felonies. He was released on bond within a day or two of his arrest. Then, on January 6, 2001, the Anderson police received a phone call reporting that there was a man at 4114 Fernway Drive, Anderson, Indiana who had injected drugs and was threatening to commit suicide. Officers Abshire and Brooks were dispatched to the residence. Shortly after they arrived at the residence, Officers Williams and Sollars arrived. The officers yelled, announced their presence, and knocked, but no one answered.

After hearing someone calling for help from inside the residence, the officers called the station and received permission from a superior officer to enter the residence. After several kicks to the door, the officers gained entry to the house. They later discovered that the door had been propped closed with a crutch. Upon entry, they heard someone calling from the basement of the residence.

Once in the basement, the officers noticed Haggard sitting amidst what appeared to be a pile of dirty clothes, wearing nothing but a camouflage pattern shirt. Haggard had a sock tied around his right arm, like a tourniquet, and was rocking with his hands between his legs. An empty syringe was on a table beside Haggard. Officer Sollars positioned himself behind a water heater, approximately two feet from Haggard. From there, Officer Sollars noticed a gun between Haggard's legs and hands. Officer Sollars then repeatedly yelled to Haggard to drop the gun. Just as Haggard began to raise the weapon and Officer Sollars prepared to shoot Haggard, Haggard fell backward.

He appeared to have a seizure and then fall asleep.

As Haggard was lying on the basement floor, the officers grabbed Haggard's gun (which turned out to be a BB gun) and attempted to handcuff him for their own safety. After his right hand was cuffed, Haggard awoke and began to struggle with the officers. The officers were eventually able to cuff Haggard's left hand also. He was then rolled onto his stomach. At this time, Officer Sollars noticed what he thought was a back brace under Haggard's shirt while he was patting Haggard on the back in an attempt to calm him.

Two of the officers then climbed the stairs to do a protective sweep and inform the medics that Haggard was in the basement. Haggard began to fight the two officers that remained in the basement. During this scuffle, Haggard turned and bit Officer Sollars' gloved hand twice without piercing his skin and was able to throw Officer Abshire approximately three to four feet into a sump pump area. As Haggard continued to struggle, he spit into Officer Sollars' face. The officers used pepper spray on him, with no apparent effect. Eventually, the officers and medics were able to subdue Haggard, get him cuffed onto a stretcher and then finally into an ambulance and on his way to a hospital.

Officer Sollars rode in the ambulance with Haggard. En route, Haggard asked Officer Sollars several times why he had not shot him. Officer Sollars then asked Haggard why he would want to be shot. Haggard replied, `that is the whole reason why you were called here.' Haggard told Officer Sollars that he was `too chicken to' shoot himself. Also while in the ambulance Haggard told Officer Sollars that he had AIDS, even though later his blood tests came back positive for only Hepatitis C and cocaine. The officers seized Haggard's shirt after it had been removed from him at the hospital. It was at this point that they noticed that body armor had been sewn into the front and back of the shirt.

On January 8, 2001, an information was filed charging Haggard with five counts: possession of cocaine, battery by body waste, resisting law enforcement, battery resulting in bodily injury, and unlawful use of body armor, all Class D felonies. Then on February 8, 2001, Haggard's bond in his pending forgery case was revoked after a hearing. A jury trial on the battery case took place in late April 2001, and Haggard was found guilty of all five offenses. Among other issues, the jurors were instructed on the defense of intoxication.

On May 8, 2001, Haggard pled guilty to all seven counts in his forgery case. Consolidated sentencing was set for May 23, 2001. The trial court judge sentenced Haggard to the Department of Correction for three years on each of the D felony charges. The sentences on the first four counts were ordered to run concurrently, but Haggard's sentence on Count V, unlawful use of body armor, was ordered to run consecutively to the sentence on the other four counts, for a total of six years." Haggard v. State, 771 N.E.2d 668, 670-71 (Ind.Ct.App.2002), (citations omitted), trans. denied.

Post-conviction proceedings do not afford a petitioner with an opportunity for a "super-appeal." Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind.2000),cert. denied, 534 U.S. 1164, 122 S.Ct. 1178, 152 L.Ed.2d 120 (2002). Post-conviction proceedings provide an opportunity to raise issues which were not known to the petitioner at the time of the original trial or were not available upon direct appeal. Id. The petitioner must establish his grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). In appealing from the denial of post-conviction relief, the petitioner bears the burden to show that the evidence is without conflict and leads to a conclusion opposite that reached by the post-conviction court. Hackett v. State, 661 N.E.2d 1231, 1233 (Ind.Ct.App.1996),trans denied.

The standard of review for a claim of ineffective assistance of appellate counsel is essentially the same as for trial counsel in that the defendant must show appellate counsel was deficient in his performance and the deficiency resulted in prejudice. Hooker v. State, 799 N.E.2d 561, 570 (Ind.Ct.App.2003), trans. denied. To satisfy the first prong, the petitioner must show that counsel's performance was deficient in that counsel's representation fell below an objective standard of reasonableness and that counsel committed errors so serious that petitioner did not have the "counsel" guaranteed by the Sixth Amendment. McCary v. State, 761 N.E.2d 389, 392 (Ind.2002). To show prejudice, the petitioner must show a reasonable probability that but for counsel's errors the result of the proceeding would have been different. Id. However, because the two components are separate and independent inquiries, "`[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.'" Landis v. State, 749 N.E.2d 1130, 1134 (Ind.2001) (quoting Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

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. Hooker, 799 N.E.2d at 570. To show that counsel was ineffective for failing to raise an issue upon appeal, the defendant must overcome the strongest presumption of adequate assistance. 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 record, and (2) whether the unraised issues are "clearly stronger" than the raised issues. Id. at 571. If that analysis demonstrates deficient performance by counsel, the court then examines whether the issues which appellate counsel failed to raise would have been more likely to result in reversal or an order for a new trial. Id.

Haggard presents two grounds which he asserts support his claim of ineffective assistance of appellate counsel. The first is that counsel should have presented the issue of whether the trial court's order that the sentence for unlawful use of body armor be served consecutively to the sentences for the other convictions for a total of six years was in contravention of Indiana Code § 35-50-1-2(c) (Burns Code Ed. Supp.2003), which states:

"[T]he court shall determine whether terms of imprisonment shall be served concurrently or consecutively.... However, except for crimes of violence, the total of the consecutive terms of imprisonment, exclusive of terms of imprisonment under IC XX-XX-X-X and IC XX-XX-X-XX, to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the presumptive 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."

An "episode of criminal conduct" is defined as "offenses or a connected series of offenses that are closely related in time, place, and circumstance." I.C. § 35-50-1-2(b). This court, in addressing the meaning of criminal episode, stated:

"`Episode' means `an occurrence or connected series of occurrences and developments which may be viewed as distinctive and apart although part of a larger or more comprehensive series.' This would cover the simultaneous robbery of seven individuals, the killing of several people with successive shots from a gun, the successive

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