Bryan Scott Lucas v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Sep 23 2019, 9:58 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Bryan Scott Lucas Curtis T. Hill, Jr.
Bunker Hill, Indiana Attorney General of Indiana
Indianapolis, Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bryan Scott Lucas, September 23, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-PC-2267
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Samuel Cappas,
Appellee-Respondent. Judge
The Honorable Natalie Bokota,
Magistrate
Trial Court Cause No.
45G04-1605-PC-2
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Bradford, Judge.
Case Summary
[1] In October of 2008, pursuant to a plea agreement, Bryan Scott Lucas agreed to
plead guilty to seven counts of Class B felony robbery and received an
aggregate, fixed sentence of forty years. In November of 2008, the trial court
accepted the plea agreement and sentenced Lucas accordingly. In February of
2017, Lucas filed his amended petition for post-conviction relief (“PCR”),
contending that (1) his sentence violated the general rule against double
enhancement, (2) his consecutive sentences were illegal, and (3) he received
ineffective assistance of counsel. The post-conviction court denied his petition
in full. Lucas contends that the post-conviction court erred by denying him
PCR and was biased against him. Because we disagree, we affirm.
Facts and Procedural History
[2] Between November 21, 2007, and December 10, 2007, Lucas and his
accomplice committed eight robberies at different businesses in Lake County.
Each time, Lucas brandished a knife and took money from the businesses’ cash
register while a victim was present. The State charged Lucas with seven counts
of Class B felony robbery (Counts I–V, VII, VIII) and one count of Class D
felony theft (Count VI). On October 24, 2008, pursuant to a plea agreement,
Lucas pled guilty to the seven robbery counts; in exchange, the State agreed to
dismiss the theft count. The plea agreement also provided for a fixed, aggregate
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sentence of forty years. On November 19, 2008, the trial court accepted the plea
agreement and sentenced Lucas according to its terms. By agreeing to plead
guilty, Lucas waived his right to file a direct appeal. On February 21, 2017,
Lucas filed an amended PCR petition, alleging that his sentence was illegal and
that he received ineffective assistance of trial counsel. The post-conviction court
held a hearing on Lucas’s PCR petition and denied it on June 13, 2018.
Discussion and Decision
[3] The standard of review for appeals from the denial of PCR is well-settled.
Petitioners who have exhausted the direct-appeal process may challenge the
correctness of their convictions and sentences by filing a post-conviction
petition. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Petitioner bears the
burden of establishing grounds for PCR by a preponderance of the evidence. Id.By appealing from a negative judgment, Petitioner faces a rigorous standard of
review. Wesley v. State, 788 N.E.2d 1247, 1250 (Ind. 2003). Denial of PCR will
be affirmed unless, “the evidence as a whole leads unerringly and unmistakably
to a decision opposite that reached by the post-conviction court.” Id. We do not
defer to the post-conviction court’s legal conclusion but do accept its factual
findings unless they are clearly erroneous. Stevens, 770 N.E.2d at 746. The post-
conviction process does not provide petitioner with a “super-appeal” but,
rather, a “narrow remedy for subsequent collateral challenges to convictions,
challenges which must be based on grounds enumerated in the post-conviction
rules.” Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999).
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I. Double Enhancement
[4] Lucas seemingly contends that his sentence resulted in an impermissible double
enhancement. “The general rule is that, absent explicit legislative direction, a
sentence imposed following a conviction under a progressive penalty statute
may not be increased further under either the general habitual offender statute
or a specialized habitual offender statute.” Dye v. State, 972 N.E.2d 853, 857
(Ind. 2012) (internal quotations and emphasis omitted), clarified on reh’g in Dye v.
State, 984 N.E.2d 625 (Ind. 2013). “Likewise, absent explicit legislative
direction, a conviction under a specialized habitual-offender statute cannot be
further enhanced under the general habitual-offender statute.” Id. In applying
this general rule against double enhancements, we first look to determine
whether the defendant’s underlying conviction is pursuant to a progressive-
penalty statute or a specialized habitual-offender statute, if not, there is no
double-enhancement issue. Id. at 858. “Specialized habitual offender statutes
authorize sentencing enhancements where the defendant has been convicted of
a certain number of similar offenses.” Id. at 857. Progressive-penalty statutes
“elevate the level of an offense (with the correspondingly enhanced sentence)
where the defendant previously has been convicted of a particular offense.” Id.Whether a particular double enhancement is permissible is a matter of statutory
interpretation. Id.[5] Here, Lucas’s underlying convictions are Class B felony robberies, which were
elevated from Class C felonies based on his use of a deadly weapon. While
Lucas’s underlying convictions were enhanced from Class C felonies to Class B
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felonies, it was not based on him having been previously convicted of a certain
number of similar offenses or a particular offense. Therefore, Lucas’s
underlying convictions were enhanced pursuant to neither a specialized
habitual-offender statute nor a progressive-penalty statute. Consequently, there
is no double enhancement issue.
II. Consecutive Sentences
[6] Because the totality of his consecutive sentences exceeded the advisory sentence
for a felony which was one class of felony higher than the most serious of the
felonies for which he was convicted, Lucas contends that his sentence was
illegal pursuant to Indiana Code subsection 35-50-1-2(c). Indiana Code
subsection 35-50-1-2(c) provides that
(c) Except as provided in subsection (d) or (e), the court shall
determine whether terms of imprisonment shall be served
concurrently or consecutively. The court may consider the:
(1) aggravating circumstances in IC 35-38-1-7.1(a); and
(2) mitigating circumstances in IC 35-38-1-7.1(b);
in making a determination under this subsection. The court may
order terms of imprisonment to be served consecutively even if
the sentences are not imposed at the same time. However, 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.
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[7] Lucas’s reliance on Indiana Code subsection 35-50-1-2(c) fails for multiple
reasons. First, Lucas’s convictions did not arise out of one episode of criminal
conduct. An episode of criminal conduct means “offenses or a connected series
of offenses that are closely related in time, place, and circumstance.” Ind. Code
§ 35-50-1-2(b). “In determining whether multiple offenses constitute an episode
of criminal conduct, the focus is on the timing of the offenses and the
simultaneous and contemporaneous nature, if any of the crimes.” Williams v.
State, 891 N.E.2d 621, 631 (Ind. Ct. App. 2008). “[A]dditional guidance on the
question can be obtained by considering whether the alleged conduct was so
closely related in time, place, and circumstance that a complete account of one
charge cannot be related without referring to the details of the other charge.” Id.(internal quotations omitted). Here, each robbery was a distinct criminal
offense, occurring on a different day, at a different location, and with a different
victim. The complete account of each offense can be related without referring to
the others. Second, Lucas’s convictions are crimes of violence, to which
Indiana Code subsection 35-50-1-2(c) does not apply. See Indiana Code
subsection 35-50-1-2(b) (providing that Class B robbery is a crime of violence).
Given the nature of Lucas’s convictions, we conclude that the totality of his
consecutive sentences was proper. See O’Connell v. State, 742 N.E.2d 943, 952
(Ind. 2001) (emphasizing that multiple crimes or victims constitute a valid
aggravating circumstance for imposing consecutive sentences).
III. Ineffective Assistance of Counsel
[8] Lucas contends that he received ineffective assistance from his trial counsel.
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This Court reviews claims of ineffective assistance of counsel
under the two components set forth in Strickland v. Washington,
466 U.S. 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the
defendant must show that counsel’s performance was deficient.
This requires a showing that counsel’s representation fell below
an objective standard of reasonableness, and that the errors were
so serious that they resulted in a denial of the right to counsel
guaranteed the defendant by the Sixth Amendment[.] Second,
the defendant must show that the deficient performance
prejudiced the defendant. To establish prejudice, a 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. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.
Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002) (internal citations omitted).
There is a strong presumption that counsel rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment. Counsel is afforded
considerable discretion in choosing strategy and tactics, and these
decisions are entitled to deferential review. Isolated mistakes,
poor strategy, inexperience, and instances of bad judgment do
not necessarily render representation ineffective.
Id. (quoting Stevens, 770 N.E.2d at 746–47 (citations omitted)). Specifically,
Lucas contends that his trial counsel performed deficiently because his counsel
induced him into accepting a plea agreement containing an illegal sentence. As
we have previously concluded in this memorandum decision, however, Lucas’s
sentence was not illegal. Lucas has failed to establish deficient performance;
therefore, he did not receive ineffective assistance of counsel.
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IV. Judicial Bias
[9] Lucas contends that he was denied due process by the post-conviction court’s
alleged bias. A judge is presumed to be unbiased and unprejudiced. Cook v.
State, 612 N.E.2d 1085, 1088 (Ind. Ct. App. 1993). To rebut such a
presumption, the defendant must establish, based on the judge’s conduct, actual
bias or prejudice which places the defendant in jeopardy. Id. “Such bias or
prejudice exists only where there is an undisputed claim or where the judge has
expressed an opinion on the merits of the pending controversy.” Id. Adverse
rulings do not support a claim of bias. Id. Specifically, Lucas contends that the
post-conviction court was biased by (1) failing to grant him a continuance to
allow him to subpoena his trial counsel and (2) ruling that his sentence was not
illegal. Lucas’s contentions are nothing more than expressions of his
dissatisfaction with adverse rulings by the post-conviction court which do not
support a claim of bias. Lucas has failed to establish that the post-conviction
court was biased against him.
[10] The judgment of the post-conviction court is affirmed.
May, J., and Altice, J., concur.
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