Anthony Taylor v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
FILED
Feb 29 2012, 9:33 am
collateral estoppel, or the law of the
case. CLERK
of the supreme court,
court of appeals and
tax court
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
ANTHONY TAYLOR GREGORY F. ZOELLER
Bunker Hill, Indiana Attorney General of Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANTHONY TAYLOR, )
)
Appellant, )
)
vs. ) No. 49A02-1108-PC-752
)
STATE OF INDIANA, )
)
Appellee. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Grant W. Hawkins, Judge
Cause No. 49G05-0608-PC-146891
February 29, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Judge
STATEMENT OF THE CASE
Anthony Taylor appeals from the post-conviction court‘s order denying his
petition for post-conviction relief.
We reverse and remand.
ISSUE
Whether the post-conviction court erred by denying Taylor‘s petition for
post-conviction relief.
FACTS
In 2006, police stopped Taylor for speeding and found, among other things, that he
had a handgun in his car and was wearing body armor. The State charged Taylor with
various offenses, including class B felony unlawful possession of a firearm by a serious
violent felon and class D felony unlawful use of body armor. Specifically, the State
alleged:
COUNT I
[Taylor], being a serious violent felon, that is: having been convicted of
Rape, a class B felony . . . on March 13, 1991, did, on or about August 8,
2006, knowingly or intentionally possess a firearm, that is: a handgun[.]
COUNT II
[Taylor], on or about August 8, 2006, did knowingly or intentionally use
body armor while committing a felony, that is: Unlawfully Possessing a
Firearm as a Serious Violent Felon.
Taylor v. State, 49A04-0705-CR-283, slip op. at 1 (Ind. Ct. App. Dec. 27, 2007). The
State also alleged that Taylor was an habitual offender based upon the same 1991 rape
conviction used in his serious violent felon charge and upon a 1989 carrying a handgun
without a license conviction.
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In 2007, following a bench trial, the trial court found Taylor guilty of unlawful
possession of a firearm by a serious violent felon (―SVF conviction‖) and unlawful use of
body armor (―body armor conviction‖). The trial court also determined that Taylor was
an habitual offender. The trial court sentenced Taylor to fifteen years on his SVF
conviction enhanced by twenty years for his habitual offender determination and to a
concurrent term of three years on his body armor conviction. Thus, the trial court
ordered Taylor to serve an aggregate sentence of thirty-five years in the Department of
Correction.
On direct appeal, Taylor challenged his habitual offender finding and the
enhancement of his SVF conviction, arguing that the trial court erred by ordering an
enhanced sentence where the same underlying felony was used to support his SVF
conviction and his status as an habitual offender. See Taylor v. State, 49A04-0705-CR-
283 (Ind. Ct. App. Dec. 27, 2007). The State conceded that, based upon the Indiana
Supreme Court‘s holding in Mills v. State, 868 N.E.2d 446 (Ind. 2007), the trial court had
erred and that Taylor‘s habitual offender enhancement should be vacated. See id., slip
op. at 1. We reversed the trial court and remanded with instructions for the trial court to
vacate Taylor‘s habitual offender enhancement. Id., slip op. at 2. Thereafter, the trial
court vacated Taylor‘s habitual offender enhancement, leaving the fifteen-year sentence
on Taylor‘s SVF conviction and the concurrent three-year term on the body armor
conviction unchanged.
In 2008, Taylor, pro se, filed a petition for post-conviction relief, which he
amended in 2009. In his amended petition, Taylor alleged, among other things, that his
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trial counsel and appellate counsel were ineffective for failing to raise a double jeopardy
argument that his SVF and body armor convictions and sentences were entered in
violation of the Indiana Double Jeopardy Clause.
The post-conviction court held a hearing on August 26, 2009. On February 4,
2010, the post-conviction court issued an order denying post-conviction relief to Taylor.
When addressing Taylor‘s ineffective assistance of trial and appellate counsel claims
based on counsels‘ failure to raise a double jeopardy argument at trial and on appeal, the
post-conviction court acknowledged that a double jeopardy objection or argument would
have been successful at trial and on appeal, but it concluded that, ultimately, Taylor was
not prejudiced because his sentences were ordered to be served concurrently.
On January 10, 2011, this court ordered the post-conviction court to allow Taylor
to file a notice of appeal to appeal the denial of his petition for post-conviction relief. See
Taylor v. State, 939 N.E.2d 1132, 1137-38 (Ind. Ct. App. 2011) (concluding that—
because Taylor had demonstrated he was entitled to relief under Indiana Trial Rule 72(E)
due to some procedural irregularities with the post-conviction court‘s notice to Taylor of
the post-conviction judgment and pursuant to the court‘s inherent power to grant
equitable relief—Taylor was entitled to appeal the post-conviction order). Taylor now
appeals.
DECISION
Taylor appeals from the post-conviction court‘s order denying post-conviction
relief, and our standard of review in post-conviction proceedings is well settled.
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We observe that post-conviction proceedings do not grant a petitioner a
―super-appeal‖ but are limited to those issues available under the Indiana
Post-Conviction Rules. Post-conviction proceedings are civil in nature, and
petitioners bear the burden of proving their grounds for relief by a
preponderance of the evidence. Ind. Post–Conviction Rule 1(5). A
petitioner who appeals the denial of PCR faces a rigorous standard of
review, as the reviewing court may consider only the evidence and the
reasonable inferences supporting the judgment of the post-conviction court.
The appellate court must accept the post-conviction court‘s findings of fact
and may reverse only if the findings are clearly erroneous. If a PCR
petitioner was denied relief, he or she must show that the evidence as a
whole leads unerringly and unmistakably to an opposite conclusion than
that reached by the post-conviction court.
Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (case citations omitted),
trans. denied.
Taylor argues that his trial counsel was ineffective for failing to object that his
SVF and body armor convictions and sentences were prohibited by double jeopardy
principles. Specifically, Taylor claims that his convictions constitute double jeopardy
because there is a reasonable possibility that the same evidentiary facts were used to
establish the essential elements of his SVF offense and body armor offense.1
A claim of ineffective assistance of trial counsel requires a showing that: (1)
counsel‘s performance was deficient by falling below an objective standard of
reasonableness based on prevailing professional norms; and (2) counsel‘s performance
prejudiced the defendant so much that ―‗there is a reasonable probability that, but for
1
Taylor also argues that his appellate counsel was ineffective for failing to raise a double jeopardy
argument in relation to his SVF and body armor convictions and sentences and that his trial counsel was
ineffective for failing to request a trifurcated proceeding on the body armor charge and for failing to seek
dismissal of his body armor charge. Because we find that Taylor is entitled to post-conviction relief on
his claim of ineffective assistance of trial counsel for failing to raise a double jeopardy argument and we
remand for the trial court to vacate his body armor conviction and sentence, we need not review these
other post-conviction claims relating to his body armor conviction.
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counsel‘s unprofessional errors, the result of the proceeding would have been different.‘‖
Davidson v. State, 763 N.E.2d 441, 444 (Ind. 2002) (quoting Strickland v. Washington,
466 U.S. 668, 687 (1984)), reh’g denied, cert. denied. ―In order to prove ineffective
assistance of counsel due to the failure to object, a defendant must prove that an objection
would have been sustained if made and that he was prejudiced by the failure.‖ Wrinkles
v. State, 749 N.E.2d 1179, 1192 (Ind. 2001), cert. denied.
Turning to Taylor‘s argument that trial counsel was ineffective for failing to make
a double jeopardy objection, we note that the Indiana Double Jeopardy Clause provides,
in relevant part, that ―No person shall be put in jeopardy twice for the same offense.‖
Ind. Const. art. I, § 14. ―Indiana‘s Double Jeopardy Clause was intended to prevent the
State from being able to proceed against a person twice for the same criminal
transgression.‖ Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). Consequently, two
or more offenses are the ―same offense‖ and violate the state double jeopardy clause 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.‖ Id.Taylor contends that the Double Jeopardy Clause was violated under the actual
evidence test. The Double Jeopardy Clause is violated under the actual evidence test if
there is ―a reasonable possibility that the evidentiary facts used by the fact-finder 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. Our supreme court
explained that ―under the Richardson actual evidence test, the Indiana Double Jeopardy
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Clause is not violated when the evidentiary facts establishing the essential elements of
one offense also establish only one or even several, but not all, of the essential elements
of a second offense.‖ Guyton v. State, 771 N.E.2d 1141, 1142 (Ind. 2002) (quoting
Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002)). In applying the actual evidence test,
this court must identify the essential elements of each offense and evaluate the evidence
from the trier of fact‘s perspective. Spivey, 761 N.E.2d at 832.
Here, the State charged Taylor with unlawful possession of handgun by a SVF,
which required the State to show beyond a reasonable doubt that Taylor was a SVF
because he was convicted of rape on March 13, 1991 and that he knowingly or
intentionally possessed a handgun. Under the unlawful use of body armor charge, the
State was required to prove beyond a reasonable doubt that Taylor knowingly or
intentionally used body armor while committing a felony, specifically the felony of
unlawful possession of a handgun by a SVF.
The State acknowledges that Taylor‘s SVF offense and body armor offense were
―inextricably intertwined‖ and concedes that the same evidence was used to prove both
Taylor‘s body armor and SVF offenses.2 State‘s Br. at 10. Indeed, even the post-
conviction court recognized that a double jeopardy objection would have been granted
and that a judgment of conviction would not have been entered on the body armor
2
In addition to the State‘s acknowledgment that a double jeopardy violation could be found under the
actual evidence test, we also conclude that such a violation would also exist under the statutory elements
test because each offense did not contain at least one element separate and distinct from the other offense
so that the same evidence would not be necessary to convict for both offenses. See Richardson, 717
N.E.2d at 52. Specifically, the SVF offense did not contain a statutory element that was separate and
distinct from the body armor offense. Indeed, the body armor offense could only be established by the
same evidence used to establish the essential elements of the SVF offense.
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offense. However, unlike the post-conviction court that concluded that Taylor was not
prejudiced by counsel‘s failure to raise a double jeopardy objection to the body armor
conviction and sentence because Taylor received concurrent sentences, the State correctly
recognizes that Taylor was prejudiced by the entry of a judgment of conviction and
sentence upon his body armor offense where it would have been otherwise vacated. See
Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008), (―A double jeopardy
violation occurs when judgments of conviction are entered and cannot be remedied by the
‗practical effect‘ of concurrent sentences[.]‖), trans. denied. The State further properly
concedes that the proper remedy for such a double jeopardy violation would be to vacate
the body armor conviction while leaving the SVF conviction undisturbed. See
Richardson, 717 N.E.2d at 54-55 (explaining that where two convictions are determined
to violate double jeopardy principles and where neither conviction can be reduced to a
less serious form of the same offense to eliminate the violation, then the conviction ―with
the less severe penal consequences‖ must be vacated).
Because Taylor‘s SVF and body armor offenses violate the prohibition against
double jeopardy and because Taylor received a judgment and sentence on his body armor
conviction that would have been prohibited by double jeopardy principles, we conclude
that the post-conviction court erred by denying Taylor post-conviction relief on his claim
of ineffective assistance of trial counsel due to counsel‘s failure to raise a double
jeopardy objection. Accordingly, we reverse the post-conviction court and remand with
instructions to grant Taylor post-conviction relief and to vacate Taylor‘s conviction and
sentence for unlawful use of body armor.
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Reversed and remanded.
BAKER, J., and BAILEY, J., concur.
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