MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be
                                                                     Feb 22 2017, 6:19 am
regarded as precedent or cited before any
court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
Jay M. Lee                                               Larry D. Allen
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indian



                                           IN THE
    COURT OF APPEALS OF INDIANA

Thomas Yoder,                                            February 22, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A04-1607-PC-1674
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Stephen Bowers,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         20D02-1411-PC-42



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017      Page 1 of 15
                                            Case Summary
[1]   Thomas Yoder (“Yoder”) appeals the denial of his petition for post-conviction

      relief, following his convictions of Battery by Means of a Deadly Weapon, as a

      Class C felony,1 and Intimidation, as a Class C felony.2 We affirm in part,

      reverse in part, and remand with instructions.



                                                      Issues
[2]   Yoder presents the following consolidated and restated issues:

                  I.       Whether he was denied the effective assistance of trial
                           counsel because trial counsel failed to play Yoder the
                           recording of the victim’s 9-1-1 call; and


                  II.      Whether he was denied the effective assistance of trial
                           counsel and appellate counsel because neither trial counsel
                           nor appellate counsel raised the issue of double jeopardy.




      1
       Ind. Code § 35-42-2-1(a)(3). Throughout our decision, we refer to the substantive provisions of the Indiana
      Code in effect at the time of and applicable to the charged offenses.
      2
          I.C. § 35-45-2-1(a)(2), (b)(2).


      Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017        Page 2 of 15
                              Facts and Procedural History
[3]   In March of 2013, Yoder was in a romantic relationship with Lisa Wessler

      (“Wessler”).3 In the past, Wessler and David Puro (“Puro”) had an intimate

      relationship, and the two remained friends.


[4]   On March 9, 2013, Wessler, Puro, and friends met for afternoon drinks in

      downtown Goshen. Afterward, a friend gave Puro a ride home, and Puro fell

      asleep in his living room. He woke up around 10:30 p.m. to knocking on his

      door. When he opened the door, he saw Wessler crying. Wessler told Puro

      that she and Yoder had an argument, and asked if she could stay with Puro for

      a few days. The two stayed up for a while, and then each went to sleep.


[5]   Around 1:30 a.m., Puro awoke to pounding at the front door. Puro went to the

      door, looked out the window, and saw Yoder outside. Yoder demanded entry,

      but Puro would not let him in. At some point, Yoder began kicking the door,

      and Puro said that he was going to call 9-1-1. Puro pressed his shoulder against

      the door, and placed the call. Yoder threatened to kill Puro, and kept trying to

      force his way inside. Puro told the dispatcher that Yoder was the intruder.


[6]   While Puro was on the phone, Yoder stopped trying to force the door open.

      Yoder then threw a hammer through the door window, reached inside, and




      3
        Although there was a prior appeal, the appellate opinion focused on restitution and did not recite all of the
      facts relevant to Yoder’s petition. See Yoder v. State, 19 N.E.3d 417 (Ind. Ct. App. 2014). We therefore recite
      them here.

      Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017           Page 3 of 15
      grabbed Puro by the sweater. Yoder pulled Puro toward the door and began

      beating Puro in the head with a metal chisel. Eventually, Yoder left.


[7]   Goshen Police Officer Lloyd Waddell (“Officer Waddell”) was one of the

      responding officers. He followed fresh footprints in the snow, and saw a man

      walking in the distance. Officer Waddell yelled, and the man began running in

      the general direction of Yoder’s home. Officer Waddell pursued the man, but

      lost sight of him. Shortly after the pursuit, Officer Waddell knocked on Yoder’s

      door. When Yoder answered, he was sweating and out of breath.


[8]   Yoder was arrested, and the State charged him with one count of Battery by

      Means of a Deadly Weapon, as a Class C felony, and Intimidation, as a Class C

      felony. Prior to trial, the State made a plea offer whereby Yoder could plead

      guilty to Intimidation as a Class D felony.4 The State also gave Yoder’s

      attorney, Gary Griner, a recording of the 9-1-1 call, in which Puro identifies

      Yoder and the assailant threatens to kill Puro. Griner told Yoder that he had

      the 9-1-1 recording but Griner did not play the call for Yoder.


[9]   Yoder rejected the plea offer and a jury trial commenced, during which the

      State introduced the 9-1-1 recording. Yoder was found guilty as charged.

      Shortly after the trial, Yoder told Griner that if Yoder had heard the 9-1-1 call,

      he would have accepted the plea offer. Griner then wrote Yoder a letter,

      memorializing their conversation. In the letter, Griner explained that he did



      4
          The full terms of the offer are unclear from the appellate record.


      Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017   Page 4 of 15
       not play the call for Yoder because he did not think the call was significantly

       damaging to the case or that it would affect Yoder’s decision to go to trial.


[10]   Yoder received consecutive four-year sentences, for an aggregate sentence

       length of eight years, and he was also ordered to pay restitution. On direct

       appeal, Yoder’s appellate counsel challenged only the restitution order.

       Subsequently, Yoder filed a petition for post-conviction relief on November 10,

       2014. Following a hearing, the petition was denied. This appeal ensued.



                                  Discussion and Decision
                                         Standard of Review
[11]   The petitioner in a post-conviction proceeding bears the burden of establishing

       grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

       Rule 1(5). “When appealing the denial of post-conviction relief, the petitioner

       stands in the position of one appealing from a negative judgment.” Ellis v. State,

       No. 71S05-1606-PC-360, slip op. at 4 (Ind. Jan. 26, 2017). 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. Hollowell v. State, 19 N.E.3d 263,

       268-69 (Ind. 2014). Here, the post-conviction court made findings of fact and

       conclusions of law in accordance with Indiana Post-Conviction Rule 1(6).

       Although we do not defer to the post-conviction court’s legal conclusions, “[a]

       post-conviction court’s findings and judgment will be reversed only upon a

       showing of clear error—‘that which leaves us with a definite and firm
       Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017   Page 5 of 15
       conviction that a mistake has been made.’” Ben-Yisrayl v. State, 729 N.E.2d 102,

       106 (Ind. 2000) (quoting State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997), cert.

       denied).


                           Failure to Play the 9-1-1 Recording
[12]   Yoder argues that he was denied the effective assistance of counsel because trial

       counsel did not play him the 9-1-1 recording. Yoder contends that had he

       known the contents of the call, he would have accepted the State’s plea offer.


[13]   The Sixth Amendment to the United States Constitution provides the right to

       effective assistance of counsel, Strickland v. Washington, 466 U.S. 668, 687

       (1984), and this right “extends to the plea-bargaining process.” Lafler v. Cooper,

       566 U.S. 156, 163 (2012). We analyze ineffective assistance of counsel claims

       under the two-part test announced in Strickland. That is, to prevail on an

       ineffective assistance of counsel claim, the claimant must show (1) that

       counsel’s performance was deficient, and (2) that the deficient performance

       prejudiced the defense. Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010)

       (citing Strickland, 466 U.S. at 687). Deficient performance is that which falls

       below an objective standard of reasonableness. Strickland, 466 U.S. at 688.

       Prejudice exists when a claimant demonstrates 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. at 694. The two

       prongs of the Strickland test—deficient performance and resulting prejudice—


       Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017   Page 6 of 15
       are separate and independent inquiries, and the failure to establish either prong

       will cause the claim to fail. State v. Greene, 16 N.E.3d 416, 419 (Ind. 2014).


[14]   We “strongly presume” that counsel provided adequate assistance and

       exercised reasonable professional judgment in all significant decisions. McCary

       v. State, 761 N.E.2d 389, 392 (Ind. 2002). Moreover, in assessing counsel’s

       conduct, we look at the facts known at the time and not through hindsight.

       Moore, 678 N.E.2d at 1261. Trial strategy is not subject to attack through an

       ineffective assistance of counsel claim, unless the strategy is so deficient or

       unreasonable as to fall outside the objective standard of reasonableness. Autrey

       v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).


[15]   Here, the post-conviction court concluded that Griner’s performance was not

       deficient, noting that “[h]ad the 9-1-1 recording been the only evidence against

       Yoder, the Court would agree that [trial counsel] performed deficiently when he

       failed to play the recording for Yoder while the class D felony offer was on the

       table.” (PCR App. Vol. II at 93-94.) However, at the post-conviction hearing,

       Griner testified that he went through the police reports with Yoder, and also

       showed Yoder the victim statement Puro had written. These documents

       contain Puro’s identification of Yoder as the assailant.


[16]   The defense theory was wrongful identification because there were others in the

       home where Yoder was located, there was a delay before Yoder was located,

       and evidence of alcohol consumption raised questions about the reliability of

       the State’s witnesses. In other words, the defense did not dispute that Puro was


       Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017   Page 7 of 15
       attacked, rather, the defense challenged Puro’s identification of Yoder. Thus,

       when viewing the 9-1-1 recording in relation to the intended defense, the call

       covered essentially the same ground as other evidence disclosed to Yoder—that

       Puro was attacked and that Puro identified Yoder. Although the 9-1-1

       recording did include the assailant’s voice, Griner explained in his letter to

       Yoder that the attacker did not identify himself on the recording and that “the

       sound quality is poor and I cannot imagine anyone determining it was your

       voice.” (PCR App. Vol. II at 55.) We cannot reweigh the evidence. Greene, 16

       N.E.3d at 418.


[17]   Ultimately, in light of the planned defense, we are not left with a definite and

       firm conviction that the post-conviction court erred in determining that Griner’s

       performance was not deficient because he failed to play Yoder the call. Yoder,

       therefore, did not meet his burden under the first prong of the Strickland test,

       and we accordingly do not reach the issue of resulting prejudice.


                                           Double Jeopardy
[18]   Yoder next asserts that he was deprived of the effective assistance of both trial

       counsel and appellate counsel because neither trial counsel nor appellate

       counsel raised the issue of double jeopardy.


[19]   “The standard of review for a claim of ineffective assistance of appellate counsel

       is the same as for trial counsel in that the [claimant] must show appellate

       counsel was deficient in her performance and that the deficiency resulted in

       prejudice.” Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). To evaluate the

       Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017   Page 8 of 15
       performance prong when the claim is that appellate counsel failed to raise an

       issue, a reviewing court considers “(1) whether the unraised issues are

       significant and obvious from the face of the record and (2) whether the unraised

       issues are ‘clearly stronger’ than the raised issues.” Henley v. State, 881 N.E.2d

       639, 645 (Ind. 2008). If the analysis under this test demonstrates deficient

       performance, then we evaluate the prejudice prong which requires an

       examination of whether, but for appellate counsel’s errors, the outcome of the

       direct appeal would have been different. Bieghler v. State, 690 N.E.2d 188, 194

       (Ind. 1997)


[20]   Yoder argues that evidence of the battery was used to elevate his intimidation

       charge, contrary to double jeopardy principles. Yoder’s argument focuses on

       the Indiana Constitution, which provides that “[n]o person shall be put in

       jeopardy twice for the same offense.” Ind. Const. art. I, § 14. Two convictions

       may be the “same offense” 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.” McIntire v. State, 717 N.E.2d 96, 99 (Ind. 1999).


[21]   Yoder contends that the Double Jeopardy Clause was violated under the actual

       evidence test. When reviewing an actual evidence challenge, we examine the

       evidence presented at trial to determine whether “each challenged offense was

       established by separate and distinct facts.” Richardson v. State, 717 N.E.2d 32,

       53 (Ind. 1999). To show that two offenses constitute the “same offense,” the

       claimant “must demonstrate a reasonable possibility that the evidentiary facts

       Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017   Page 9 of 15
       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.


[22]   In his Richardson concurrence, Justice Sullivan articulated five categories of

       double jeopardy violations, among them, “[c]onviction and punishment for an

       enhancement of a crime where the enhancement is imposed for the very same

       behavior or harm as another crime for which the defendant has been convicted

       and punished.” Id. at 56 (Sullivan, J., concurring). Justice Sullivan noted that

       McIntire—decided the same day as Richardson—fell within that category. Id.

       (citing McIntire, 17 N.E.2d 96).


[23]   In McIntire, the defendant struck the victim’s head with a baseball bat after

       entering the victim’s home. The defendant was convicted of multiple charges,

       including criminal recklessness, as a Class D felony, and burglary, as a Class A

       felony. In challenging these convictions on double jeopardy grounds, the

       defendant pointed out that a jury instruction defined criminal recklessness as a

       Class D felony if the defendant “recklessly, knowingly, or intentionally inflicts

       serious bodily injury on another person.” McIntire, 717 N.E.2d at 101. Yet, the

       burglary conviction was elevated to a Class A felony because the defendant’s

       behavior “result[ed] in either bodily injury or serious bodily injury to any

       person other than a defendant.” Id. at 99 (quoting I.C. § 35-43-2-1 (1993)). In

       resolving McIntire, our supreme determined that there was a double jeopardy

       violation because “the defendant ha[d] demonstrated a reasonable possibility

       that the jury used the same evidentiary facts ([the victim’s] head injury caused

       Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017   Page 10 of 15
       by the baseball bat) to establish the essential elements of both” charges. Id. at

       101. Put another way, the very same behavior that supported the criminal

       recklessness conviction—inflicting serious bodily injury on the victim with a

       baseball bat—could have elevated the crime of battery. Thus, there was a

       reasonable possibility that the defendant was twice punished for the same act.


[24]   McIntire is instructive. Here, Yoder was charged with Battery by Means of a

       Deadly Weapon as a Class C felony and Intimidation as a Class C felony. As

       charged, the relevant statutory definition of battery provides:

               A person who knowingly or intentionally touches another person
               in a rude, insolent, or angry manner commits battery, a Class B
               misdemeanor. However, the offense is . . . a Class C felony if
               it . . . is committed by means of a deadly weapon.


       I.C. § 35-42-2-1.


[25]   The relevant statutory definition of intimidation provides:


               A person who communicates a threat to another person, with the
               intent . . . that the other person be placed in fear of retaliation for
               a prior lawful act . . . commits intimidation, a Class A
               misdemeanor. . . . However, the offense is a . . . Class C felony if,
               while committing it, the person draws or uses a deadly weapon.


       I.C. § 35-45-2-1(a), (b)(2) (emphasis added).5




       5
         In the charging information for intimidation, the State alleged only that Yoder drew the metal chisel.
       However, “our identification of the evidentiary facts used by the jury in reaching its decisions may be
       informed by consideration of the final jury instructions and argument of counsel.” McIntire, 717 N.E.2d at

       Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017       Page 11 of 15
[26]   Applying McIntire, Yoder argues that there was a reasonable possibility that his

       intimidation charge was elevated for the very same conduct supporting his

       battery conviction—use of the chisel. The only “use” of the chisel supported by

       the evidence is that Yoder beat Puro with it, that is, that Yoder committed the

       battery for which he was convicted and punished.


[27]   In addressing McIntire, both the State and post-conviction court focus on a

       different double jeopardy violation presented in that case, which is inapposite.

       The State also directs us to language from a case the post-conviction court

       relied on in denying Yoder relief:


                [O]ur recognition in Richardson of the common law rule
                establishing that enhancements cannot be imposed for the very
                same behavior could not have included use of a single deadly
                weapon during the commission of separate offenses . . . because
                no such common law rule existed.


       Sistrunk v. State, 36 N.E.3d 1051, 1054 (Ind. 2015).


[28]   The reliance on Sistrunk is misplaced. In Sistrunk, multiple offenses were

       elevated because the defendant committed each offense while armed with a

       gun. Our supreme court determined that there was no double jeopardy

       violation, concluding that possession of the same weapon could elevate separate

       offenses. Id. (“[O]ur jurisprudence teaches that committing two or more




       101. Here, the State argued, and a jury instruction stated, that the jury could convict Yoder of Class C felony
       intimidation if Yoder “drew or used a deadly weapon” while committing the offense. (Trial Tr. Vol. I at 192;
       Direct Appeal App. Vol. I at 61.)

       Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017         Page 12 of 15
       separate offenses each while armed with a deadly weapon—even the same

       weapon—is not within the category of rules precluding the enhancement of

       each offense based on ‘the very same behavior.’”) Here, however, Yoder

       alleges a different sort of double jeopardy violation. It is not that both of

       Yoder’s offenses were elevated because they involved the same weapon. 6

       Rather, here, like in McIntire, the entire other crime—Yoder’s battery—was

       potentially used to elevate Yoder’s intimidation charge to a Class C felony.

       This presents the very risk contemplated by the principles of double jeopardy,

       namely, that Yoder could have been twice punished for beating Puro—once

       through the battery conviction and again through elevating the intimidation

       offense. See Richardson, 717 N.E.2d at 49 (“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.”)


[29]   Yoder demonstrated, by a preponderance of the evidence, a reasonable

       possibility that the very conduct giving rise to his battery conviction was used to

       elevate his intimidation conviction to a Class C felony, contrary to principles of

       double jeopardy. Trial counsel’s and appellate counsel’s failure to raise this

       issue was objectively unreasonable, as the issue was significant and obvious

       from the face of the record. Moreover, Yoder was prejudiced; had the issue

       been raised, Yoder’s intimidation conviction would have been reduced from a




       6
         This is one argument Yoder presented to the post-conviction court, but Yoder also argued that “the jury
       relied on the use of the chisel for both counts, as well.” (PCR App. Vol. II at 78-79.)

       Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017       Page 13 of 15
       Class C felony to a Class A misdemeanor, which carries significantly less penal

       exposure.7 Although appellate counsel successfully raised a restitution issue,

       the double jeopardy violation—a constitutional defect—was the stronger issue.


[30]   Because Yoder was convicted of an elevated charge of intimidation that would

       have been prohibited by double jeopardy principles, we conclude that the post-

       conviction court erred by denying Yoder post-conviction relief due to the failure

       of counsel to raise a double jeopardy issue. Accordingly, we reverse this aspect

       of the post-conviction court’s judgment, and remand with instructions to reduce

       Yoder’s intimidation conviction to a Class A misdemeanor and to impose a

       sentence of one year, with the sentence to run consecutive to Yoder’s existing

       four-year sentence.8



                                                   Conclusion
[31]   The post-conviction court did not clearly err in concluding that Yoder did not

       receive ineffective assistance of trial counsel due to counsel’s failure to play

       Yoder a 9-1-1 recording, but the post-conviction court clearly erred by denying




       7
        The State did not charge Yoder with Intimidation, as a Class D felony, therefore the jury verdict could rest
       only on the Class A misdemeanor. The maximum sentence for a Class A misdemeanor is one year whereas
       Yoder faced a maximum sentence of eight years on his Class C felony. See I.C. §§ 35-50-3-2, -6.
       8
         Indiana Appellate Rule 66(C) authorizes us to “grant any other appropriate relief” in deciding a case. In
       the interest of judicial economy, we elect to direct the trial court to impose a specific sentence rather than to
       remand for a resentencing hearing. See Spurlock v. State, 675 N.E.2d 312, 317 (Ind. 1996) (ordering the trial
       court to reduce two counts and to impose a specific sentence). Here, we note that the trial court, at
       sentencing, stated that it “ha[d] not found any substantial grounds that tend to excuse or justify Mr. Yoder’s
       conduct” (Trial Tr. Vol. II at 271) and that it could not “find a way to give [him] a break . . . . It’s just not
       here.” (Trial Tr. Vol. II at 272.)

       Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017            Page 14 of 15
       Yoder post-conviction relief due to trial counsel’s and appellate counsel’s failure

       to raise the issue of double jeopardy.


[32]   Affirmed in part, reversed in part, and remanded with instructions.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A04-1607-PC-1674 | February 22, 2017   Page 15 of 15