Jennings Daugherty v. State of Indiana , 2016 Ind. App. LEXIS 99 ( 2016 )

FILED
Apr 05 2016, 8:35 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana
Laura L. Volk Karl M. Scharnberg
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jennings Daugherty, April 5, 2016
Appellant-Petitioner, Court of Appeals Case No.
89A01-1510-PC-1532
v. Appeal from the Wayne Superior
State of Indiana, Court
Appellee-Respondent. The Honorable Gregory A. Horn,
Judge
Trial Court Cause No.
89D02-1210-PC-10
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Petitioner, Jennings Daugherty (Daugherty), appeals the post-
convictions court’s denial of his petition for post-conviction relief.
[2] We affirm, in part, reverse, in part, and remand for resentencing.
ISSUES
[3] Daugherty raises two issues on appeal, which we restate as follows:
(1) Whether Daugherty was denied the effective assistance of appellate
counsel where his counsel failed to argue that his two consecutive
sentences for unlawful possession of a firearm by a serious violent felon
(SVF) convictions constituted an impermissible double enhancement;
and
(2) Whether Daugherty was denied the effective assistance of appellate
counsel where his counsel failed to argue that his aggregate sentence of
33 years exceeded the statutory limitation for consecutive sentences
arising out of a single episode of criminal conduct.
FACTS AND PROCEDURAL HISTORY
[4] We adopt this court’s statement of facts and procedural history as set forth in
our memorandum decision issued in Daugherty’s direct appeal, Daugherty v.
State, No. 89A01–1010–CR–520 (Ind. Ct. App. May 9, 2011), trans. vacated,
(internal citations to the record omitted):
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At 2:48 a.m. on May 26, 2007, Captain Thomas Porfidio
[(Captain Porfidio)] of the Richmond Police Department was
dispatched to Bertie’s Bar in Richmond upon receiving a
complaint of a bar fight. Upon arriving, Captain Porfidio spoke
with the bartender who indicated that Daugherty had shoved her.
The bartender further indicated that Daugherty was sitting in a
van that was parked across the street from the bar, and requested
that Daugherty be banned from returning to the bar. The
bartender indicated, however, that she did not wish to press
charges against Daugherty.
After speaking to the bartender, Captain Porfidio approached the
van in which Daugherty was sitting in the front passenger seat.
Captain Porfidio observed four individuals, including Daugherty,
in the van. By this time, Officer Kevin Smith [(Officer Smith)],
who had also responded to the scene, was speaking to Daugherty.
During the course of his conversation with Daugherty,
Officer Smith asked Daugherty to step out of the van.
Captain Porfidio and Officer Smith observed as Daugherty
stumbled and nearly fell while attempting to get out of the van.
Daugherty also exhibited multiple signs of intoxication, including
the strong odor of alcohol; red, bloodshot, and watery eyes;
thick-tongued, slow speech; and slow, fumbling manual
dexterity. Both Captain Porfidio and Officer Smith determined
based on their training as police officers that Daugherty was
intoxicated and, thus, incapable of driving. The officers
instructed one of the other individuals in the van to drive
Daugherty home where he could “sleep it off.”
Forty-seven minutes later, at 3:35 a.m., Captain Porfidio was
patrolling another area of Richmond when he saw the van in
which Daugherty was earlier sitting. Captain Porfidio pulled
alongside the van at a traffic light and observed that Daugherty
was driving the vehicle. Captain Porfidio activated his
emergency lights and initiated a traffic stop. Initially, Daugherty
pulled over to the curb, but started to slowly drive away as
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Captain Porfidio opened the door of his marked police cruiser.
Captain Porfidio closed his door and followed Daugherty until
he again pulled over to the curb. Daugherty attempted to slowly
drive away a second time as Captain Porfidio opened his cruiser
door. Daugherty pulled into a parking lot where he again
stopped, only to slowly drive away as Captain Porfidio again
attempted to approach his vehicle. Daugherty stopped the van
when he could no longer drive forward without driving into a
building.
Officers Smith and Ami Miller [(Officer Miller)] arrived as
Captain Porfidio approached the driver’s side of the van and
asked to see Daugherty’s identification. In attempting to comply
with Captain Porfidio’s request, Daugherty fumbled with his
wallet and dropped it into his lap. Captain Porfidio shined his
flashlight on the wallet and observed the “butt-end” of a pistol
sticking up from between Daugherty’s legs. Captain Porfidio
called out, “gun,” stepped back, and drew his service weapon.
At the same time, Officer Miller drew her taser, stepped toward
the vehicle, and tased Daugherty.
Captain Porfidio pulled Daugherty out of the vehicle while the
taser was still cycling, and the pistol that was in Daugherty’s lap
fell to the ground and was recovered by police. Police also
recovered a rifle that was found on the front floorboard of
Daugherty’s vehicle. The rifle was within reach of the driver’s
seat where Daugherty had been sitting. Both weapons were
loaded. Daugherty was taken to a local hospital where he was
hostile to the officers. Daugherty [spat] at the officers, threatened
to kill them and their families, and threatened to rape their wives.
The officers later testified that Daugherty’s threats put them in
fear for both their personal safety and their families’ safety.
Later that day, Daugherty was charged with Class A
misdemeanor carrying a handgun without a license, Class D
felony intimidation[, Ind. Code § 35–45–2–1(a)(2); (b)(1)(B)(i)
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(2006)], Class D felony operating a motor vehicle while
intoxicated, Class D felony resisting law enforcement, and two
counts of Class B felony possession of a firearm by a serious
violent felon[, I.C. § 35-47-4-5(c)]. The State further alleged that
the Class A misdemeanor carrying a handgun charge should be
enhanced to a Class C felony because Daugherty had a prior
felony conviction. Daugherty was also alleged to be a habitual
offender. On August 14, 2009, Daugherty filed a motion to
suppress the evidence recovered following what he alleged was
an illegal traffic stop by Captain Porfidio. The trial court denied
Daugherty’s motion to suppress on February 16, 2010, and
subsequently denied his request that the ruling be certified for
interlocutory appeal.
During an April 9, 2010 pre-trial hearing, Daugherty waived his
right to a jury trial and indicated that he would stipulate to being
a habitual offender if convicted of the underlying crimes.
Daugherty filed a second motion to suppress on April 13, 2010.
Daugherty failed to appear on the morning of his April 19, 2010
bench trial, and the trial was conducted, over his counsel’s
objection, without Daugherty present. The State dismissed the
resisting law enforcement charge. Upon reviewing the evidence
presented by the parties, the trial court denied Daugherty’s
second motion to suppress and found Daugherty guilty of the
remaining counts as charged.
On July 20, 2010, the State requested permission to amend its
habitual offender allegation by replacing two of Daugherty’s
alleged felony convictions with different felony convictions
because the State subsequently learned that the two alleged
felony convictions had previously been reversed by the Indiana
Supreme Court. Following a hearing, the trial court granted the
State’s request and allowed the amendment. Daugherty
subsequently admitted to being a habitual offender.
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At sentencing, the State moved to set aside the Class C felony
carrying a handgun without a license conviction out of double
jeopardy concerns. The trial court imposed a three-year sentence
for the intimidation conviction that was to run concurrently to a
one-and-one-half-year sentence for the operating while
intoxicated conviction, but consecutively to the two consecutive
fifteen-year sentences for each of the possession of a firearm by a
serious violent felon convictions. The trial court enhanced
Daugherty’s sentence by an additional twenty years as a result of
his status as a habitual offender, for an aggregate fifty-three-year
sentence.
[5] On May 9, 2011, we affirmed the trial court’s judgment. On October 29, 2012,
Daugherty filed a pro se petition for post-conviction relief, which was amended
by his counsel on July 15, 2014. On December 3, 2014, the parties jointly filed
an Agreement to Vacate Daugherty’s Habitual Offender Finding and Resulting
Enhanced Sentence on Count V. On December 8, 2014, the trial court accepted
the agreement and reduced Daugherty’s aggregate sentence to 33 years. On
July 8, 2015, the post-conviction court held an evidentiary hearing on
Daugherty’s petition for post-conviction relief. Daugherty’s appellate counsel
was the sole witness at the hearing. He testified that he raised four issues on
appeal: (1) the trial court’s denial of Daugherty’s motion to suppress
constituted an abuse of the court’s discretion; (2) Daugherty’s multiple
convictions for possession of a firearm by an SVF violated the prohibition
against double jeopardy; (3) the trial court erred in allowing the State to amend
the habitual offender information; and (4) Daugherty’s sentence was
inappropriate. Out of these issues, in appellate counsel’s opinion, the double
jeopardy violation and the inappropriateness of Daugherty’s sentence claims
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were the strongest arguments. He testified that he did not consider raising a
claim that the consecutive sentences for two SVF convictions constituted an
impermissible double enhancement and a claim that Daugherty’s aggregate
sentence exceeded the statutory limitation for consecutive sentences arising out
of a single episode of criminal conduct. On September 3, 2015, the post-
conviction court entered its Findings of Fact and Conclusions of Law, denying
the requested relief.
[6] Daugherty now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[7] In a post-conviction proceeding, the petitioner must establish the grounds for
relief by a preponderance of the evidence. Ind. Post–Conviction Rule
1(5); Overstreet v. State, 877 N.E.2d 144, 151 (Ind. 2007). When challenging the
denial of post-conviction relief, the petitioner appeals a negative judgment.
Overstreet, 877 N.E.2d at 151. To prevail, the petitioner must show that the
evidence leads unerringly and unmistakably to a decision opposite that reached
by the post-conviction court. Id. We will disturb the post-conviction court’s
decision only where the evidence is without conflict and leads to but one
conclusion and the post-conviction court reached the opposite
conclusion. Henley v. State, 881 N.E.2d 639, 643–44 (Ind. 2008).
[8] Where the post-conviction court enters findings of fact and conclusions of law,
as in the instant case, we do not defer to the post-conviction court’s legal
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conclusions; the post-conviction court’s findings and judgment will be reversed,
however, only upon a showing of clear error that leaves us with a definite and
firm conviction that a mistake has been made. Overstreet, 877 N.E.2d at 151.
Post-conviction procedures do not afford a petitioner with a super-appeal, and
not all issues are available. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001).
Rather, subsequent collateral challenges to convictions must be based on
grounds enumerated in the post-conviction rules. Id. If an issue was known and
available, but not raised on direct appeal, it is waived. Id.[9] A defendant claiming a violation of the right of effective assistance of counsel
must establish the two components set forth in Strickland v. Washington, 466
U.S. 668 (1984). Williams v. Taylor, 529 U.S. 362, 390 (2000). First, the
defendant must show that counsel’s performance was deficient. Strickland, 466
U.S. at 687. This requires a showing that counsel’s representation fell below an
objective standard of reasonableness and that counsel made errors so serious
that counsel was not functioning as “counsel” guaranteed to the defendant by
the Sixth Amendment. Id. Second, the defendant must show that the deficient
performance prejudiced the defense. Id. To establish prejudice, the defendant
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. at 694. A reasonable probability is one that is sufficient to
undermine confidence in the outcome. Id.[10] Counsel is afforded considerable discretion in choosing strategy and tactics, and
we will accord those decisions deference. Id. at 689. A strong presumption
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arises that counsel rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment. Id. at
690. The Strickland court recognized that even the finest, most experienced
criminal defense attorneys may not agree on the ideal strategy or the most
effective way to represent a client. Id. at 689. Isolated mistakes, poor strategy,
inexperience, and instances of bad judgment do not necessarily render
representation ineffective. Bieghler v. State, 690 N.E.2d 188, 199 (Ind. 1997).
The two prongs of the Strickland test are separate and independent inquiries.
Thus, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice . . . that course should be followed.” Williams v.
State, 706 N.E.2d 149, 154 (Ind. 1999) (quoting Strickland, 466 U.S. at 697).
[11] Daugherty alleges that his appellate counsel was ineffective. Our supreme court
has recognized three categories of alleged appellate counsel ineffectiveness: (1)
denying access to an appeal, (2) failing to raise issues, and (3) failing to present
issues competently. Bieghler, 690 N.E.2d at 193-95. Daugherty specifically
asserts that his appellate counsel failed to raise two issues: that the consecutive
sentences for his two SVF convictions constituted an impermissible double
enhancement and that Daugherty’s aggregate sentence exceeded the statutory
limitation for consecutive sentences arising out of a single episode of criminal
conduct. His claims fall into Bieghler’s second category. When assessing claims
under the second category, reviewing courts should be particularly deferential
to counsel’s strategic decision to exclude certain issues in favor of others, unless
such a decision was unquestionably unreasonable. Id. Finally, we review
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matters of statutory interpretations de novo because they present pure questions
of law. Nicoson v. State, 938 N.E.2d 660, 663 (Ind. 2010).
II. Double Enhancement
[12] Daugherty argues his appellate counsel was ineffective because he failed to raise
a claim that the imposition of two consecutive sentences for possession of a
firearm by an SVF, based on a single prior felony conviction, constituted an
impermissible double enhancement. Generally, double enhancements are not
permissible. Dye v State, 972 N.E.2d 853, 856 (Ind. 2012), aff’d on reh’g, 984
N.E.2d 625 (Ind. 2013). But double enhancements are permissible when there
is explicit legislative direction authorizing them. Id. at 857. There are three
types of statutes authorizing enhanced sentences for repeat offenders: the
general habitual offender statute, specialized habitual offender statutes, and
progressive-penalty statutes. Id. The first type, the “general habitual offender
statute,” provides that a person convicted of three felonies of any kind is called
a “habitual offender.” I.C. § 35–50–2–8; Beldon v. State, 926 N.E.2d 480, 482
(Ind. 2010). Habitual offenders are subject to an additional term of years
beyond that imposed for the underlying felony. Beldon, 926 N.E.2d at 482. The
second type, the “specialized habitual offender statutes,” authorize sentencing
enhancements where the defendant has been convicted of a certain number of
similar offenses. Id.; Dye, 972 N.E.2d at 857; see, e.g., I.C. § 35–50–2–14 (repeat
sex offenders); I.C. § 9–30–10–4 (habitual traffic violators). The third type, the
“progressive-penalty statutes,” which are the most specialized, elevate the level
of an offense (with a correspondingly enhanced sentence) where the defendant
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has previously been convicted of a particular offense. Dye, 972 N.E.2d at 857.
Examples of the progressive penalty statutes include the statute at issue here,
Indiana Code section 35-47-4-5(c). See Dye, 972 N.E.2d at 858 (identifying the
SVF statute as a progressive penalty statute). Double enhancement issues arise
where more than one of these statutes apply to the defendant at the same time.
Id. at 857.
[13] As a general rule, “absent explicit legislative direction, a sentence imposed
following conviction under a progressive penalty statute may not be increased
further under either the general habitual offender statute or a specialized
habitual offender statute.” Id. Similarly, a conviction under a specialized
habitual offender statute cannot be further enhanced under the general habitual
offender statute in the absence of explicit legislative direction. Id. In applying
the general rule against double enhancements, first, we determine whether the
defendant’s underlying conviction is pursuant to a progressive-penalty scheme
or a specialized habitual-offender scheme. Id. at 858. If not, then there is no
double-enhancement problem. Id. But if so, then the general rule against
double enhancements is triggered and we will invalidate a double enhancement
unless the language of the relevant statute possesses the requisite “explicit
legislative direction” to impose a double enhancement. Id.
[14] In Dye, applying this analysis, our supreme court held that the defendant’s
habitual offender enhancement violated the rule against double enhancement.
Id. First, the Dye court held that the defendant’s SVF conviction was a
progressive-penalty statute. Id. Second, the Dye court held that the general
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habitual offender statute did not include explicit legislative direction
authorizing double enhancement. Id. As such, the Dye court concluded that a
double enhancement was not proper where the underlying conviction was for
unlawful possession of a firearm by an SVF. Id.
[15] In the present case, in essence, Daugherty urges us to extend the Dye court’s
decision to cases involving consecutive sentences for two progressive-penalty
statutes. Daugherty specifically asserts that, because his two SVF convictions
were “already enhanced” and each was supported by the same underlying
felony, ordering the sentences to run consecutively violated the double
enhancement prohibition. (Appellant’s Br. p. 16). We disagree. First,
Daugherty starts off on the wrong foot. He assumes that the underlying felony
in his case was the same as the underlying felony used to enhance the
defendant’s sentence in Dye.1 Daugherty’s underlying felony was used to
establish his SVF status, and the SVF status, in turn, was an element in each
SVF count; whereas in Dye, the underlying felony was used to establish the SVF
status in one SVF count and, what distinguishes Dye from the present case, the
underlying felony was used as an enhancement for the habitual offender
adjudication. See Dye, 972 N.E.2d at 858. Second, the Dye court clearly stated
that the “[d]ouble enhancement issues arise where more than one of the [three types
of repeat offender] statutes” apply to the defendant at the same time. Id. at 857
(emphasis added). The present issue involves only the progressive-penalty
1
This would equally apply to other cases cited by Daugherty in support of his argument.
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statute, the third type of repeat offender statutes, and the other two types were
not implicated.2 Third, none of the authorities cited by Daugherty support his
argument because none of the cases dealt with two separate SVF convictions.
See id. at 858 (an SVF conviction and a habitual offender adjudication); Mills v.
State, 868 N.E.2d 446, 452 (Ind. 2007) (an SVF conviction and a habitual
offender adjudication); Sweatt v. State, 887 N.E.2d 81, 83-84 (Ind. 2008) (an
SVF conviction and a habitual offender adjudication). Fourth, the SVF statute
itself is unambiguous—“[an] [SVF] who knowingly or intentionally possesses a
firearm commits unlawful possession of a firearm by a[n] [SVF], a Class B
felony.” I.C. § 35-47-4-5(c) (2006). The statute provides that each unlawful
possession of a weapon is considered to be a separate and distinct act, and
therefore each unlawful possession is a separate and distinct offense. Taylor v.
State, 929 N.E.2d 912, 921 (Ind. Ct. App. 2010), trans. denied. Finally, we had
already addressed Daugherty’s claim of whether the trial court abused its
discretion in imposing both enhanced and consecutive sentences in 2011, when
we held that his consecutive sentences were not inappropriate in his direct
appeal.
[16] Because Daugherty’s single underlying felony conviction served as an element
in each SVF count, not as an enhancement, and because each SVF count was a
separate and distinct offense, we conclude that the imposition of two sentences
for two counts of unlawful possession of a firearm by an SVF to run
2
Daugherty’s sentence enhancement under the habitual offender statute, the first type of repeat offender
statutes, was successfully vacated on December 8, 2014, and his aggregate sentence was reduced from 53 to
33 years of imprisonment.
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consecutively was not an improper double enhancement under Indiana law and
the circumstances of this case. Further, there was no reasonable probability
that the result of the proceeding would have been any different even if appellate
counsel would have made the claim. As such, we cannot conclude that
Daugherty’s appellate counsel was ineffective for failing to raise the double
enhancement claim.
III. Consecutive Sentencing
[17] As to the second instance of ineffective assistance of counsel claim, Daugherty
contends that his sentence for the intimidation conviction ordered to run
consecutively to the other sentences exceeded the maximum allowed
punishment pursuant to Indiana Code section 35-50-1-2 (2006), which, at the
time of Daugherty’s crimes, provided:
The court may order terms of imprisonment to be served
consecutively . . . . However, except for crimes of violence, the
total of the consecutive terms of imprisonment . . . 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.
[18] Both parties seem to agree that Daugherty’s SVF convictions were not covered
by the definition of a “crime of violence” at the time.3 See I.C. § 35-50-1-2.
3
The statute contains an exhaustive list of violent crimes. The crime of unlawful possession of a firearm by
an SVF was added to the list in 2015.
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However, both parties disagree as to the definition of a “single episode of
criminal conduct,” which is dispositive here. See I.C. § 35-50-1-2. A single
episode of criminal conduct is defined as “an offense or a connected series of
offenses that are closely related in time, place, and circumstance.” I.C. § 35-50-
1-2(b).
[19] Here, Daugherty was stopped for driving while intoxicated. When the police
officers discovered a handgun between his legs, Daugherty was tased and taken
into custody. Police also recovered an SKS assault rifle on the vehicle’s
floorboard. Both weapons were loaded and within Daugherty’s immediate
reach. Daugherty was taken to a hospital where he was hostile to the officers.
He spat at the officers, threatened to kill them and their families, and threatened
to rape their wives. The officers later testified that Daugherty’s threats put them
in fear for both their personal safety and their families’ safety.
[20] Daugherty claims that these events constituted a single episode and cites to
Purdy v. State, 727 N.E.2d 1091 (Ind. Ct. App. 2000), trans. denied. In Purdy, the
defendant went to the house of his former girlfriend despite a court’s order not
to have contact with her. Id. at 1092. The defendant pounded on her door and
threatened to kick it in. Id. The former girlfriend, who did not have a
telephone in her house, tried to run next door to use the telephone at the Village
Pantry. Id. The defendant, however, grabbed her by the shoulders, bruising
her. Id. When the police arrived and attempted to handcuff the defendant, he
fought back—kicked and spat at the officers, and attempted to flee. Id. As the
officers placed the defendant in a vehicle, he threatened to kill one of them. Id.Court of Appeals of Indiana | Opinion 89A01-1510-PC-1532 | April 5, 2016 Page 15 of 20
The State charged the defendant with felony intimidation, resisting law
enforcement, and battery. Id. The Purdy court held that the defendant’s actions
constituted a single episode because “all of his actions took place during a
relatively short period of time and all were related to his assault on [his former
girlfriend].” Id. at 1093.
[21] The State, in turn, maintains that because Daugherty’s appellate counsel did
not raise the claim on direct appeal, and because appellate counsel’s decision
was “clothed” with “the strong presumption of competency,” Daugherty “can
show neither deficient performance, nor prejudice stemming from [appellate
counsel’s] election,” and his claim therefore fails. (Appellee’s Br. pp. 24-25).
Because this issue involves statutory interpretation, we reiterate that we review
it de novo. Nicoson, 938 N.E.2d at 663.
[22] The State further asserts that Daugherty’s argument “would have failed in any
case” because the events did not constitute a single episode. (Appellee’s Br. p.
24). In support, instead of addressing the negative authority presented by
Daugherty, the State cites to our decision in Newman and argues that the events
of the instant case were similar to the events in Newman. See Newman v. State,
690 N.E.2d 735 (Ind. Ct. App. 1998). In Newman, police officers were
dispatched to a tavern in response to a burglary report. Id. at 736. When they
arrived, the defendant was sitting in his car in the parking lot of the tavern. Id.The officers stopped in front of the defendant’s vehicle and ordered him three
times to get out of his car. Id. The defendant refused to get out of his car and
sped away from the police. Id. The police officers pursued the defendant’s
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vehicle until he ultimately crashed into a cement wall. Id. Following the crash,
the officers discovered cigarettes and money taken by the defendant from the
tavern. Id. They placed the defendant under arrest and summoned an
ambulance to transport the defendant to a hospital for the treatment of the
injuries he received in the crash. Id. After the defendant and the officers arrived
at the hospital, hospital personnel requested that the defendant not be
handcuffed in order that he be properly treated. Id. When no officer was
present in the treatment room, the defendant managed to flee down the hospital
corridor as hospital personnel yelled for assistance. Id. Police officers
recaptured the defendant and subsequently transported him to jail. Id. The
defendant pled guilty to burglary, theft, escape, resisting law enforcement, and
driving while suspended. Id. The Newman court found that the defendant’s
actions constituted three separate episodes: burglary and theft, being the first
distinct episode; resisting law enforcement and fleeing, as the second distinct
episode; and escape in the hospital, as the third distinct episode. Id. at 737.
The Newman court concluded that each of these episodes was sufficiently
unrelated and each could have been described independently without referring
to the specific details of the other episodes. Id. As such, the Newman court held
that the defendant’s crimes were committed during three distinct episodes of
criminal conduct. Id.[23] In reaching its decision and to “illuminate our legislature’s definition” of the
term “episode,” the Newman court examined our sister states’ approaches. Id.Court of Appeals of Indiana | Opinion 89A01-1510-PC-1532 | April 5, 2016 Page 17 of 20
The Purdy court, on the other hand, examined the statute’s underlying policy
and goals. Purdy, 727 N.E.2d at 1093. We prefer the Purdy court’s approach.
[24] We do not and may not interpret a statute that is facially clear and
unambiguous. Id. Rather, we give the statute its plain and clear meaning. Id.However, when the statute’s application results in opposite conclusions, as in
the present case where a series of connected events are treated as one episode by
one party and as several isolated episodes by another, we seek to ascertain and
give effect to the legislature’s intent. Id. In doing so, we read the act as a whole
and strive to give effect to all of the provisions, so that no part is held
meaningless if it can be reconciled with the rest of the statute. Id. Furthermore,
we presume that our legislature intended its language to be applied in a logical
manner consistent with the statute’s underlying policy and goals. Id.[25] Indiana Code section 35-50-1-2 imposes a previously nonexistent limitation
upon a trial court’s discretion to impose consecutive sentences, and is therefore
ameliorative in nature. Id. at 1094. An “ameliorative” statute is one that has
the effect of decreasing the penalty for an offense. Id. (emphasis in original).
With these goals in mind, we fail to see how the interpretation of this
ameliorative statute, which clearly reads that a single episode includes “a
connected series of offenses that are closely related in time, place, and
circumstance,” could result in an increase of the penalty by abstract separation of
the connected events in the parking lot and the hospital. See I.C. § 35-50-1-2
(2006). The legislature could not have intended this result in 2006. As a matter
of fact, once the legislature decided to change its position and give the trial
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courts the discretion to impose consecutive sentences in SVF cases, it changed
the statute in 2015 and included the SVF convictions to the list of crimes of
violence.
[26] Further, even though there was a change of location between the tasing and
discovery of two firearms episode and the intimidation episode, we fail to see
how the change of location separated the two events to the extent that each
could have been described independently without referring to the specific details
of the other episode. To prove the intimidation episode, the State was required
to show that the police officers were placed “in fear of retaliation for a prior
lawful act.” (Petitioner’s Ex. 1 p. 20). The only way to accomplish this was to
refer to Daugherty’s arrest, tasing, and discovery of two loaded firearms within
his immediate reach. All of Daugherty’s actions took place during a relatively
short period of time and all were related to his intoxication and possession of the
firearms.
[27] As such, because Daugherty’s offenses were committed in a single episode, his
aggregate sentence cannot “exceed the advisory sentence for a felony which is
one (1) class of felony higher that the most serious of the felonies for which
[Daugherty] has been convicted.” I.C. § 35-50-1-2(c) (2006). Daugherty’s most
serious conviction was a Class B felony conviction for unlawful possession of a
firearm by an SVF, limiting his aggregate sentence to 30 years, the advisory
sentence for a Class A felony. I.C. § 35-50-1-2(c); -2-4 (2006).
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[28] Appellate courts are duty bound to correct sentences that violate the trial court’s
authority to impose consecutive sentences under Indiana Code section 35-50-1-
2. Becker v. State, 695 N.E.2d 968, 973 (Ind. Ct. App. 1998). Applying our
standards of review, we conclude that appellate counsel’s performance was
deficient and that there was a reasonable probability that, but for appellate
counsel’s failure to raise the claim, the result of the proceeding would have been
different. The post-conviction court should have corrected the sentencing error.
We reverse the post-conviction court’s denial of Daugherty’s request for relief
as to the intimidation conviction and remand with instructions to resentence
Daugherty so that his sentence for the intimidation conviction runs
concurrently to the other sentences and his aggregate term is limited to 30 years.
CONCLUSION
[29] Based on the foregoing, we conclude that Daugherty was not denied the
effective assistance of appellate counsel when counsel did not raise the double
enhancement issue. However, we conclude that Daugherty was denied the
effective assistance of appellate counsel when counsel did not raise the issue of
statutory limitation for consecutive sentences arising out of a single episode of
criminal conduct.
[30] Affirmed, in part, reversed, in part, and remanded for resentencing consistent
with this decision.
[31] Najam, J. and May, J. concur
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