Shamir Chappell v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Jan 19 2016, 8:26 am
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, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Shamir Chappell Gregory F. Zoeller
Carlisle, Indiana Attorney General
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shamir Chappell, January 19, 2016
Appellant-Defendant, Court of Appeals Case No.
89A01-1503-PC-124
v. Appeal from the Wayne Superior
Court
State of Indiana, The Honorable Gregory A. Horn,
Appellee-Plaintiff. Judge
Trial Court Cause No.
89D02-1208-PC-8
Bradford, Judge.
Case Summary
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[1] In 2014, Appellant-Defendant Shamir Chappell filed a petition for post-
conviction relief (“PCR”) relating to his 2011 convictions for Class A felony
aiding and abetting burglary resulting in bodily injury and Class C felony aiding
and abetting battery with a deadly weapon. In his petition, Chappell claimed
that he received ineffective assistance of trial and appellate counsel. The post-
conviction court denied Chappell’s petition and Chappell now appeals pro se.
We affirm.
Facts and Procedural History
[2] We outlined the following underlying facts and procedural history of this case
in Chappell’s direct appeal:
In 2010, Elly Casebolt–Flanagan (“Casebolt–Flanagan”) rented a
home in Richmond, Indiana to Dinashia Bee (“Bee”). Bee and
Casebolt–Flanagan had an “understanding” that only Bee was to
live at the home. Despite this, Bee lived at the home with her
mother and two brothers. One of Bee’s brothers, Maurice Jones
(“Maurice”) lived at the home with his wife, Heather Jones
(“Heather”). Casebolt–Flanagan was unhappy with this and
legally evicted Bee from the home on September 8, 2010. As a
result of the eviction, Bee was given until September 13, 2010 to
vacate the house and take her belongings. Although Bee and her
mother moved out of state, Maurice and Heather stayed at the
house on September 12, 2010 in order to remove the remainder
of Bee’s belongings.
That evening, Maurice went to the home of Carlotta Wilkerson
(“Wilkerson”), with whom he had a relationship. Wilkerson
began to send Heather text messages, taunting her that Maurice
was going to leave her to be with Wilkerson. Wilkerson even
called Heather and threatened to physically assault her.
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Undaunted by these threats, Heather went to Wilkerson’s home
to confront her. The two women argued, but Maurice was able
to keep them physically separated. Maurice then went back to
the rented home with Heather, and the two slept in the back
bedroom of the house.
At some point in the middle of that night, Maurice and Heather
heard someone banging on the front door. Heather got out of the
bedroom to see what was causing the noise when she saw the
door fly open and Wilkerson and Chappell enter the house.
Heather then ran back to the bedroom and shut the door.
Wilkerson and Chappell tried to force their way into the
bedroom, but Maurice and Heather held the door shut. Chappell
then kicked the door repeatedly, eventually breaking it off the
latch and hinges. Wilkerson was holding a steak knife, so
Heather attempted to flee out the front door but was blocked by
an unknown individual. Heather then ran to the basement in an
attempt to flee out a back door, but Wilkerson followed her.
In the basement, Wilkerson stabbed Heather in the arm.
Maurice and Chappell soon came to the basement, and Chappell
blocked Heather’s attempt to run back up the basement stairs.
When Maurice attempted to come to Heather’s defense,
Wilkerson told Chappell, “we’re in this together, do it,” and
“what are you waiting for?” Tr. pp. 302, 245. Chappell then
swung his fists at Maurice. Heather managed to escape back up
the basement stairs, but as she did, Wilkerson stabbed her again,
this time in the hip. Heather was then able to run out the front
door and found shelter at a neighbor’s house, where the neighbor
called the police. Maurice too ran to the front door. As he did,
Chappell ran by him, telling Wilkerson, “come on, we gotta go.”
Tr. p. 319. Wilkerson and Chappell left the house, and
Wilkerson slashed the tires on Maurice’s car. Maurice went back
into the house and also called the police.
When the police arrived, the found they [sic] front door of the
house dented and completely removed from the door frame.
Heather was taken to the hospital, and it took eight medical
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staples to close her knife wounds. Both Maurice and Heather
later identified Wilkerson and Chappell from a photographic
array as their attackers. Both were “100%” positive of the
accuracy of their identifications. Tr. pp. 182-83, 255.
On December 7, 2010, the State charged Chappell as follows:
Count I, aiding, inducing, or causing Class A felony burglary
resulting in bodily injury; Count II, aiding, inducing, or causing
Class B felony burglary of a dwelling; and Count III, Class B
misdemeanor battery. The State also alleged that Chappell was
an habitual offender. The State later moved to add Count IV,
Class C felony battery, and moved later again to amend this
charge to aiding, inducing, or causing Class C felony battery. At
that time, the State also added Count V, which alleged Class D
felony residential entry. A two-day jury trial commenced on
February 7, 2011. At the conclusion of the trial, the jury found
Chappell guilty on Counts I, II, IV, and V, but acquitted him on
Count III. Chappell then admitted to being an habitual offender.
On March 4, 2011, the trial court sentenced Chappell to forty
years on Count I, ten years on Count II, and four years on Count
IV. The trial court vacated the conviction on Count V on double
jeopardy grounds. The court also attached an habitual offender
enhancement of thirty years to the forty-year sentence on Count
I, and ordered the sentences on the other counts to run
concurrently with Count I. Thus, Chappell was sentenced to an
aggregate of seventy years incarceration.
Chappell v. State, 966 N.E.2d 124, 127-28 (Ind. Ct. App. 2012).
[3] The trial court subsequently denied Chappell’s motion to correct error and
Chappell appealed. Id. On appeal, this court affirmed Chappell’s convictions
for Class A felony burglary and Class C felony battery and vacated his
conviction for Class B felony burglary on double jeopardy grounds.
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Additionally, we found that Chappell’s seventy-year sentence was not
inappropriate.
[4] On January 28, 2014, Chappell filed an amended PCR petition, arguing in part
that his trial and appellate counsel were ineffective. Chappell argued that his
trial counsel was ineffective for “fail[ing] to properly conduct an investigation
and have court documents regarding the eviction filed by Casebolt-Flanagan
against Bee,” and for “fail[ing] to object to Maurice’s testimony that Bee gave
him permission to be in the house.” PCR Appendix p. 24. Chappell also
argues that his appellate counsel was ineffective for failing to raise the issue of
double jeopardy. After two hearings, the post-conviction court rejected
Chappell’s argument and denied his petition.
Discussion and Decision
[5] Chappell appeals the denial of his PCR petition.
In post-conviction proceedings, the petitioner bears the burden of
proof by a preponderance of the evidence. Henley v. State, 881
N.E.2d 639, 643 (Ind. 2008). “When appealing from the denial
of post-conviction relief, the petitioner stands in the position of
one appealing from a negative judgment.” Fisher v. State, 810
N.E.2d 674, 679 (Ind. 2004). “To prevail on appeal from the
denial of post-conviction relief, a petitioner must show that the
evidence as a whole leads unerringly and unmistakably to a
conclusion opposite that reached by the post-conviction court.”
Kubsch v. State, 934 N.E.2d 1138, 1144 (Ind. 2010).
Benefield v. State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011).
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[6] Chappell claims that he received ineffective assistance of trial and appellate
counsel.
When evaluating a claim of ineffective assistance of counsel, we
apply the two-part test articulated in Strickland v. Washington, 466
U.S. 668, 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 to the defendant by the Sixth and Fourteenth
Amendments. Second, the defendant must show that the
deficient performance resulted in prejudice. 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.
Id. (quoting Perry v. State, 904 N.E.2d 302, 308 (Ind. Ct. App. 2009)).
I. Ineffective Assistance of Trial Counsel
[7] Chappell claims that his trial counsel was ineffective for failing to properly
investigate Bee’s eviction and for failing to object to hearsay testimony.
1. Failure to Investigate
[8] Chappell argues that there was not a residential burglary because, at the time of
the crime, Bee had been evicted. He contends that his trial counsel was
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ineffective for failing to interview Bee1 to establish the date of eviction and
failing to obtain the court ordered eviction notice which would have shown that
Bee “no longer had any possessory interest in the relevant property” at the time
of the crime. Appellant’s Br. p. 12.
[9] Chappell’s argument appears to be that because Bee had been evicted at the
time of the crime, the home which he helped to break into was not a dwelling
or residence. However, Chappell was convicted of Class A felony burglary
under Indiana Code section 35-43-2-1(2) (2004) which does not require that the
building broken into be a dwelling or residence:
A person who breaks and enters the building or structure of
another person, with intent to commit a felony in it, commits
burglary, a Class C felony. However, the offense is:
(1) a Class B felony if:
(A) it is committed while armed with a deadly
weapon; or
(B) the building or structure is a:
(i) dwelling; or
(ii) structure used for religious worship; and
(2) a Class A felony if it results in:
(A) bodily injury; or
(B) serious bodily injury;
to any person other than a defendant.
1
“At the post-conviction relief evidentiary hearing, both Detective Michael French, a State’s witness, and
Attorney Gottlieb [Chappell’s trial counsel] testified that they tried to contact Bee prior to trial but were
unable to reach her.” PCR Appendix p. 24.
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Therefore, whether Bee was evicted from the property prior to the commission
of the crime is not relevant to the conviction for Class A felony burglary. The
fact that the building was owned by Casebolt-Flanagan and that Chappell was
not authorized to enter was sufficient to establish the elements of the crime.
Accordingly, Chappell’s trial counsel was not ineffective for failing to
investigate Bee’s whereabouts or obtain the eviction notice.
2. Failure to Object
[10] “To prove that ineffective representation resulted from the failure to object to
hearsay statements, a defendant must prove that an objection would have been
sustained, that the failure to object was unreasonable, and that he was
prejudiced.” Potter v. State, 684 N.E.2d 1127, 1134 (Ind. 1997) (citing Thompson
v. State, 671 N.E.2d 1165, 1170 (Ind. 1996)).
[11] Chappell also argues that his trial counsel was ineffective for failing to object to
Maurice’s testimony that Bee had given him permission to be in the residence
she no longer legally had authority over and that this statement was hearsay.
Chappell contends that had his trial counsel objected, it would have prevented
the victims from showing that they had a right to be in the home. Again, this
line of logic appears to be aimed at establishing that the house was not a
dwelling because the victims did not have a right to be there.
[12] Chappell’s argument fails for several reasons. First, Chappell does not cite to
any specific hearsay statement in the record. Rather, Maurice only indicated
that he and his wife had permission to be inside the home and refers to no out-
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of-court statement. Furthermore, as we have determined above, whether or not
the house was a dwelling is not relevant to prove the elements of the crime.
Accordingly, Chappell has failed to show that any objection would have been
sustained or, even assuming a hearsay statement was made, that he was
prejudiced by it.
II. Ineffective Assistance of Appellate Counsel
[13] Chappell argues that his appellate counsel was ineffective for failing to argue on
direct appeal that his Class A felony burglary and Class C felony battery
convictions violated double jeopardy. “In a claim that appellate counsel
provided ineffective assistance regarding the selection and presentation of
issues, the defendant must overcome the strongest presumption of adequate
assistance, and judicial scrutiny is highly deferential.” Ben-Yisrayl v. State, 738
N.E.2d 253, 260-61 (Ind. 2000) (citations omitted). “A defendant may establish
that his appellate counsel’s performance was deficient where counsel failed to
present a significant and obvious issue for reasons that cannot be explained by
any strategic decision.” Id. Additionally, a defendant must show that the
unraised issues are “clearly stronger than those presented.” Bieghler v. State, 690
N.E.2d 188, 194 (Ind. 1997) (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir.
1986)).
[14] “[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
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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).
Chappell claims that his convictions fail the actual evidence test. To establish
that his convictions constitute the same offense under this test, Chappell “must
demonstrate 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.
[15] To convict Chappell as an accomplice to Class A felony burglary resulting in
bodily injury, the State was required to prove that he (1) knowingly or
intentionally, (2) aided or induced Wilkerson, (3) to break and enter, (4) the
building or structure of another person, (5) with the intent to commit a felony
therein, and (6) it resulted in bodily injury to another person. Ind. Code §§ 35-
43-2-1; 35-41-2-4. To convict Chappell as an accomplice to Class C felony
battery with a deadly weapon, the State was required to prove that he (1)
knowingly or intentionally, (2) aided or induced Wilkerson, (3) to touch
another person in a rude, insolent, or angry manner, (4) with a deadly weapon.
Ind. Code §§ 35-41-2-4; 35-42-2-1 (2009).
[16] We disagree with Chappell’s contention that there is a reasonable possibility
that the jury used the same evidentiary facts to establish the essential elements
of both offenses. The fact that Chappell and Wilkerson broke down the front
door, entered the house with the intent to attack Heather, and that Heather was
injured as a result is sufficient to establish the elements of aiding and abetting
burglary.
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[17] After the burglary was complete and while the victims were hiding in the
bedroom, Chappell “kicked the [bedroom] door repeatedly, eventually breaking
it off the latch and hinges.” Chappell, 966 N.E.2d at 127. After Heather ran to
the basement and was stabbed by Wilkerson, Chappell “blocked Heather’s
attempt to run back up the basement stairs” and proceeded to attack Maurice as
he attempted to defend Heather before Wilkerson again stabbed Heather. Id.This evidence is sufficient to establish Chappell’s aiding and abetting
Wilkerson’s battery of Heather. Accordingly, we find that Chappell has failed
to meet his burden to show that his trial or appellate counsel was ineffective.
[18] The judgment of the post-conviction court is affirmed.
Baker, J., and Pyle, J., concur.
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