Zieman v. State

• Decision Date: 25 June 2013
• Docket Number: No. 45A03–1301–PC–1.,45A03–1301–PC–1.
• Parties: Timmy T. ZIEMAN, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent.
• Court: Indiana Appellate Court

990 N.E.2d 53

Timmy T. ZIEMAN, Appellant–Petitioner,

v.STATE of Indiana, Appellee–Respondent.

No. 45A03–1301–PC–1.

Court of Appeals of Indiana.

June 25, 2013.

Stephen T. Owens, Public Defender of Indiana, Victoria Christ, Deputy Public defender, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

Timmy T. Zieman fled from police and crashed his car into an officer's vehicle, causing that officer serious bodily injury. The State charged Zieman with several crimes including attempted murder and class C felony resisting law enforcement resulting in serious bodily injury. A jury found Zieman guilty but mentally ill of these offenses. The trial court sentenced Zieman to an aggregate sentence of thirty-five years.

Zieman filed a petition for post-conviction relief (“PCR”), arguing that his trial and appellate counsel were ineffective in failing to argue that the same evidence supporting the attempted murder conviction also supported the serious bodily injury element that elevated the resisting law enforcement conviction to a class C felony and therefore his convictions violated double jeopardy principles. The post-conviction (“PC”) court found that there was no double jeopardy violation and denied Zieman's petition.

Zieman now appeals the denial of his PCR petition. He argues that trial counsel was ineffective in failing to challenge the elevation of his resisting law enforcement conviction to a class C felony based on serious bodily injury because there is a reasonable possibility that the jury used the same evidence to support the substantial step element of his attempted murder conviction. Based on the prosecutor's arguments at trial and the lack of specificity in the charging information and jury instructions, we conclude that such a reasonablepossibility existed, and therefore double jeopardy principles were violated. Accordingly, the PC court clearly erred in finding that trial counsel did not provide ineffective assistance, and we reverse the denial of Zieman's PCR petition. We remand with instructions for the PC court to reduce Zieman's class C felony conviction to a class D felony conviction and sentence him to one and a half years on that count, for an aggregate sentence of thirty-three and a half years.

Facts and Procedural History

We summarized the facts underlying Zieman's convictions in a memorandum decision on direct appeal as follows:

Zieman and his wife, Nicole Zieman (“Nicole”), had been experiencing marital difficulties, and Nicole decided to seek a divorce. On December 4, 2008, one of Nicole's relatives contacted the Schererville Police Department and requested that police escort Nicole from her home. Nicole declined the offer because she wished to pack her belongings before leaving, and asked the police to return the next day.

That day, December 5, 2008, Nicole informed Zieman that she was leaving. The two argued, and Nicole called her mother, who called the Schererville Police Department. Zieman also called the police, informed them that nothing was wrong, and eventually left the home, got into his white Chevrolet S–10 pickup truck, and drove away.

In response to the phone calls and their prior visit to the Zieman home, several police officers drove to the home to ensure Nicole's welfare. Other officers were alerted that Zieman had driven away from the home. One of these officers, Adam Biella (“Officer Biella”) saw Zieman's truck and followed him for a brief period until dispatch informed him that Zieman's driver's license had been suspended. Another officer, Timothy Mele (“Officer Mele”), had dealt with Zieman before and informed Officer Biella that Zieman was likely “in the process of fighting or fleeing.”

Officer Biella initiated a traffic stop. Zieman pulled over, but then sped away as Officer Biella was walking from his patrol car to Zieman's truck. Officer Biella got back into his patrol car and gave chase, radioing to dispatch that Zieman appeared to be driving back toward his home.

Officer Biella was later joined in his pursuit by Officer Mele and Corporal Marcus Handley (“Corporal Handley”). The three pursued Zieman through Schererville with lights and sirens activated. At various points in the pursuit, Zieman was driving very rapidly, without using turn signals or stopping at stop lights. During portions of the pursuit, Zieman appeared to be reaching underneath the seat of his car, and at other times appeared to be holding an object against his neck. It was later determined that Zieman had been stabbing his legs and chest and had cut his own neck in an attempt to kill himself.

The officers continued to follow Zieman, but once Zieman's driving posed a danger not only to the public but also to himself, Corporal Handley terminated the pursuit. The officers turned off their lights and sirens, ceased their pursuit, and headed to other calls. Other Schererville officers continued to follow Zieman outside of Schererville's jurisdiction and into Crown Point, though they did not actively pursue him. Once active pursuit ceased, Zieman reduced his speed, though his driving remained somewhat erratic, including rolling stops rather than complete stops at stop signs.

Zieman eventually crossed from Schererville to Merrillville and then into Crown Point. Deputy Joseph Kraus (“Deputy Kraus”), of the Lake County Sheriff's Office, had heard about the Schererville pursuit, saw Zieman's truck, and initiated a second pursuit. He was eventually joined by Officer Airren Nylen of the Crown Point Police Department and Trooper Roa of the Indiana State Police. The three officers pursued Zieman through portions of Crown Point, with Zieman reaching speeds of more than seventy-five miles per hour and swerving through heavy daytime traffic, all the while continuing to accelerate his truck.

Also apprised of the pursuits over police radio was Crown Point Sergeant John Allendorf, Jr. (“Sergeant Allendorf”). Though close to the end of his work day, Sergeant Allendorf was close to the area of the pursuit in Crown Point—near the intersection of 93rd Avenue and Broadway Avenue—and set out to assist Deputy Kraus, Officer Nylen, and Trooper Roa. Entering the intersection of 93rd Avenue and Broadway Avenue, Sergeant Allendorf observed Zieman's truck with police cars in pursuit, with Zieman headed east in the southernmost of two west-bound lanes on 93rd Avenue and the police cars following in the east-bound lanes. Sergeant Allendorf maneuvered his car into the northernmost of the west-bound lanes, leaving sufficient space on the road for Zieman to drive past the patrol car without a collision. Zieman, however, drove his truck into the northernmost lane and steered the vehicle directly at Sergeant Allendorf's car.

Sergeant Allendorf attempted to avoid a collision with Zieman by gunning his engine and jumping the curb with two tires, but had no chance of escape. Travelling at least sixty-eight miles per hour, Zieman slammed his truck into the front driver's side of Sergeant Allendorf's slow-moving patrol car, at or just in front of the driver's door. The force of the collision rammed Sergeant Allendorf's car completely over the curb, pinning Sergeant Allendorf inside the patrol car and severely injuring him. Zieman's truck was sent airborne down 93rd Avenue toward Broadway Avenue, eventually landing upside down with flames briefly alight on the vehicle's undercarriage.

Both Zieman and Sergeant Allendorf were extracted from their cars and were rushed to separate emergency rooms. Sergeant Allendorf suffered from an open fracture of his femur; bruised kidney, liver, and lung; and numerous broken ribs, and was required to undergo two surgeries and extensive physical therapy from shortly after the crash until January 2010.

Zieman v. State, No. 45A03–1005–CR–230, slip op. at 2–3, 949 N.E.2d 888 (Ind. Ct.App. June 3, 2011) (footnote and citation omitted).

The State charged Zieman with attempted murder, class B felony aggravated battery, two counts of class C felony battery, class C felony resisting law enforcement resulting in serious bodily injury, class D felony criminal recklessness, class A misdemeanor criminal recklessness, and class B misdemeanor reckless driving. A jury found Zieman guilty but mentally ill on all charges except the last, on which it found Zieman guilty. The trial court entered judgment of conviction only for attempted murder, class C felony resisting law enforcement resulting in serious bodily injury, and class A misdemeanor criminal recklessness. The trial court sentenced Zieman to thirty years for attempted murder, four years for resisting law enforcement, and one year for criminal recklessness, to be served consecutively for an aggregate sentence of thirty-five years.

Zieman appealed his attempted murder conviction, arguing that the evidence was insufficient to establish his intent to kill. Concluding that the evidence was sufficient, we affirmed. Id., slip op. at 4–5.

In an amended PCR petition, Zieman, by counsel, claimed that his trial and appellate counsel provided ineffective assistance because neither challenged his attempted murder conviction and the serious bodily injury element that elevated his resisting law enforcement conviction on double jeopardy grounds. Following an evidentiary hearing, the PC court issued its findings of fact and conclusions of law denying Zieman relief, which provides in relevant part,

In Zieman's case, the charging information for attempted murder does not allege what conduct of Zieman constituted the substantial step toward commission of the crime of murder. Therefore, the statutory elements of the charging informations do not allege the same act to establish both the attempted murder ... and resisting law enforcement causing serious bodily injury.... Zieman argues however, that the actual...