Lee v. State

• Decision Date: 26 February 2008
• Docket Number: No. 27A04-0705-PC-257.,27A04-0705-PC-257.
• Citation: 880 N.E.2d 1278
• Parties: Roderick LEE, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

880 N.E.2d 1278

Roderick LEE, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 27A04-0705-PC-257.

Court of Appeals of Indiana.

February 26, 2008.

Susan K. Carpenter, Public Defender of Indiana, Anne-Marie Alward, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Case Summary and Issues

Roderick Lee appeals the denial of his petition for post-conviction relief. On appeal, Lee raises two issues, which we restate as whether the post-conviction court properly denied Lee relief on his claims of ineffective assistance of trial and appellate counsel. We affirm, concluding the postconviction court properly denied Lee relief with respect to both of his claims.

Facts and Procedural History

This court related the following facts on Lee's direct appeal:

During the evening of September 26, 2000, Dell Riley and her ten-year-old daughter, Ashley, were at their home in Marion, Indiana. Ashley was in her bedroom and Riley was on the telephone when there was a knock at the door. As Riley opened the door, three young African-American men, later identified as Lee, Jarvacus Cheney, and Antwon Drew, barged into the home, pointed guns at Riley, and demanded money. Lee wore a white jacket, had his hair in braids, and carried a small silver pistol. The other two men wore dark colored clothes, and Cheney carried a sawed-off shotgun.

While in the home, Lee threatened Riley and ordered her into her bedroom where another man emptied drawers and turned over her mattress looking for money. Ashley heard the noise and came downstairs. During the search, Lee did all of the talking and kept close to Riley and Ashley. Finding no money, Lee again pointed his gun at Riley and demanded money. Riley told Lee that she might have money in her purse, which she kept by the back door. While Lee was looking at the contents of the purse, Riley and Ashley opened the back door and ran to a neighbor's house to call the police.

Lee v. State, No. 27A05-0110-CR-452, slip op. at 2-3, 769 N.E.2d 711 (Ind.Ct.App., June 4, 2002), trans. denied. The State charged Lee with burglary, a Class B felony, and attempted robbery, a Class B felony.¹ The jury returned guilty verdicts on both charges. The trial court accepted the verdicts and sentenced Lee to twenty years for the burglary conviction and twenty years for the robbery conviction. The trial court also ordered the sentences to run consecutively, resulting in a total executed sentence of forty years. On direct appeal, this court affirmed Lee's convictions. Lee, slip op. at 11.

Following this court's decision, Lee, filed a pro se petition for post-conviction relief. Lee then filed an amended petition with the benefit of counsel asserting claims of ineffective assistance of trial and appellate counsel. The post-conviction court conducted a hearing at which Lee's counsel testified.² Following the hearing, the post-conviction court issued findings of fact and conclusions of law denying relief. Lee now appeals.

Discussion and Decision

I. Standard of Review

To obtain relief, a petitioner in a post-conviction proceeding bears the burden of establishing his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). We accept the post-conviction court's findings of fact unless they are clearly erroneous, but we do not defer to the post-conviction court's conclusions of law. Martin v. State, 740 N.E.2d 137, 139 (Ind.Ct.App.2000). Moreover, when the petitioner appeals from a denial of relief, the denial is considered a negative judgment and therefore the petitioner must establish "that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court." Stevens v. State, 770 N.E.2d 739, 745 (Ind.2002), cert. denied, 540 U.S. 830, 124 S.Ct. 69, 157 L.Ed.2d 56 (2003).

II. Ineffective Assistance of Counsel

To establish a violation of the right to effective counsel as guaranteed by the Sixth Amendment, the petitioner must establish both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Wesley v. State, 788 N.E.2d 1247, 1252 (Ind.2003). First, the petitioner must show counsel was deficient. Id. "Deficient" means that counsel's errors fell below an objective standard of reasonableness and were so serious that counsel was not functioning as "counsel" within the meaning of the Sixth Amendment. Id. Second, the petitioner must show that counsel's deficiency resulted in prejudice. Id. Prejudice exists if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. We need not address whether counsel's performance was deficient if we can resolve a claim of ineffective assistance based on lack of prejudice. Wentz v. State, 766 N.E.2d 351, 360 (Ind.2002). The same standard of review applies to claims of ineffective assistance of trial counsel and claims of ineffective assistance of appellate counsel. Burnside v. State, 858 N.E.2d 232, 238 (Ind.Ct.App.2006).

A. Trial Counsel

Lee argues counsel was deficient because he failed to argue to the trial court that entering judgments of convictions on burglary and attempted robbery violated the Indiana constitutional prohibition against double jeopardy. "[T]wo or more offenses are the `same offense' in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense." Richardson v. State, 717 N.E.2d 32, 49 (Ind.1999) (emphasis in original). Lee does not argue that burglary and attempted robbery violate the statutory elements test. Instead, Lee argues the offenses violate the actual evidence test. To prove a double jeopardy violation based on the actual evidence test, "the defendant must demonstrate a reasonable possibility that the evidentiary facts used by the factfinder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense." Id. at 53. In making this determination, a reviewing court may consider the charging information, arguments of counsel, and final jury instructions. McIntire v. State, 717 N.E.2d 96, 100 (Ind.1999).

To convict Lee of burglary as a Class B felony, the State had to prove beyond a reasonable doubt that while armed with a deadly weapon, Lee knowingly or intentionally broke and entered Riley's home with, the intent to commit a felony therein. See Ind.Code § 35-43-2-1. To convict Lee of attempted robbery as a Class B felony, the State had to prove beyond a reasonable doubt that while armed with a deadly weapon, Lee intentionally took a substantial step toward taking Riley's property by using or threatening the use of force. See Ind.Code §§ 35-41-5-1 and 35-42-5-1. The evidence presented at trial indicates Lee, Cheney, and Drew forced themselves through the front door of Riley's home. Once inside, Lee brandished a gun and demanded that Riley give him money. When Riley explained she did not have any money, Lee said, "[d]on't make me have to kill you bitch." Transcript at 40. Lee then ordered Riley into her bedroom while Cheney and Drew searched the house for money. When the search proved fruitless, Lee pointed his gun at Riley's face, stated that he would kill her, and again demanded that she give him money.

Lee argues there was a double jeopardy violation under the actual evidence test because the evidentiary facts used to establish the essential elements of burglary—Lee entering Riley's home while brandishing a gun and demanding money—also were used to establish the essential elements of attempted robbery. The State counters that there was no double jeopardy violation under the actual evidence test because the evidentiary facts established that the offenses were based on separate events; that is, the burglary was completed when Lee entered Riley's home and the attempted robbery was completed after the burglary when Lee pointed a gun at Riley's face and demanded that she give him money. In concluding there was no double jeopardy violation, the post-conviction court applied the same rationale:

Here, the evidence at trial clearly established that Lee broke the close and entered Riley's residence with the intent to steal money, while armed with a pistol. This established burglary. The evidence further established that after entering the residence (and therefore after the burglary had been committed), Lee took Riley's purse from her (in the hopes that there was money in it) by threatening Riley and Ashley with a pistol, which threats, not surprisingly, frightened Riley and Ashley. This evidence established the attempted armed robbery. Thus, there was no violation of the actual evidence test. The Court finds that it is particularly likely that the jury used this specific evidence to convict Lee of the crimes, as the prosecutor highlighted this specific evidence as she reviewed the elements of the crimes in her closing argument.

Appellant's Appendix at 41-42.

Had the State presented its case in this manner, Lee's convictions of burglary and attempted robbery would not have violated the actual evidence test. Cf. Williams v. State, 771 N.E.2d 70, 75-76 (Ind.2002) (concluding the defendant's convictions of burglary and intimidation did not violate the, actual evidence test because the defendant's act of forcibly entering the victim's apartment was "separate and distinct" from his subsequent act of pointing a gun at the victim's head). Our review of the record, however, indicates the State did not present its case in the...