ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUSAN K. CARPENTER KAREN M. FREEMAN-WILSON
Public Defender of Indiana Attorney General of Indiana
C. BRENT MARTIN TIMOTHY W. BEAM
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
COURT OF APPEALS OF INDIANA
JOHNIE E. DAVIDSON, )
vs. ) No. 22A01-0004-PC-116
STATE OF INDIANA, )
APPEAL FROM THE FLOYD SUPERIOR COURT
The Honorable Richard C. Striegel, Judge
Cause No. 22D01-8901-CF-1
September 25, 2000
OPINION - FOR PUBLICATION
Appellant-petitioner Johnie E. Davidson appeals the denial of his petition for
post-conviction relief, claiming ineffective assistance of both trial and appellate counsel. Specifically, Davidson
claims that he is entitled to relief because trial counsel failed to seek
a mandatory severance of unrelated charges which resulted in the imposition of otherwise
illegally consecutive sentences. Davidson also asserts that trial counsel was ineffective for
failing to object to the trial courts use of impermissible aggravating factors when
imposing the sentence and that appellate counsel was ineffective for failing to raise
these issues on direct appeal.
The facts most favorable to the judgment reveal that Davidson was charged with
robbery as a class B felony of the Swifty Food Mart in New
Albany which occurred on December 22, 1988. He was also charged with
robbery of the Ace Food Mart as a class B felony which took
place on December 4, 1988, and for attempted robbery of an individual at
gunpoint resulting in serious bodily injury as a class A felony which occurred
on January 1, 1989. The State also alleged that Davidson confined that
individual and charged him with a class B felony for that offense.
Moreover, Davidson was charged with battery of that individual as a class C
felony. Finally, Davidson was charged with the attempted robbery of another individual
as a class B felony which also occurred on January 1, 1989.
Davidsons counsel did not move to sever the charges and, following a jury
trial which commenced on March 13, 1989, Davidson was found guilty on all
counts except for the robbery of the Ace Food Mart. Additionally, the
jury convicted him of the attempted robbery charge, which occurred on January 1,
1989, as a class B felony and the battery of that individual as
a class A misdemeanor.
As a result of these convictions, on April 17, 1989, the trial court
sentenced Davidson to the maximum sentence on each count with all time to
be served consecutively for an aggregate sentence of eighty-one years. This court
affirmed Davidsons convictions on direct appeal in an unpublished memorandum decision.
Davidson v. State, No. 22A01-8909-CR-309 (July 17, 1990).
On February 25, 1999, Davidson filed an amended petition for post-conviction relief,
See footnote claiming
that trial counsel was ineffective for failing to move for separate trials. Davidson
asserted that the trial court would have been prohibited from imposing consecutive sentences
for each charge had trial counsel requested severance. R. at 107.
Davidson also alleged that he was erroneously sentenced because the trial court
considered a number of improper aggravating factors in determining the proper sentence to
impose. At a hearing on the petition, Davidsons trial counsel testified that
he could not recall whether he considered filing a motion for severance or
what the law was concerning a sentencing courts authority to order consecutive sentences
at the time of Davidsons trial. Following an evidentiary hearing, the post-conviction
court denied Davidsons petition for post-conviction relief on March 14, 2000. Davidson
DISCUSSION AND DECISION
I. Standard of Review
Post-conviction procedures do not afford the petitioner with a super-appeal.
State, 716 N.E.2d 906, 911 (Ind. 1999). Instead, these procedures create a
narrow remedy for subsequent collateral challenges to convictions which must be based on
grounds enumerated in the post-conviction rules. Weatherford v. State, 619 N.E.2d 915,
916-17 (Ind. 1993). We will neither reweigh the evidence nor judge the
credibility of witnesses. Rather, we will consider only the evidence and the
reasonable inferences therefrom supporting the post-conviction courts judgment. Taylor v. State, 717
N.E.2d 90, 92 (Ind. 1999).
We note that when analyzing claims of ineffective assistance of counsel, this court
applies the two-pronged standard announced in Strickland v. Washington, 466 U.S. 668 (1984).
That standard requires Davidson to prove both that counsels performance was deficient,
and that any of those alleged deficiencies prejudiced him. See Williams v.
State, 706 N.E.2d 149, 154 (Ind. 1999). The petitioner must show that
there is a reasonable probability that but for counsels errors, the result would
have been different. Woods v. State, 701 N.E.2d 1208, 1224 (Ind. 1998);
Smith v. State, 689 N.E.2d 1238, 1243 (Ind. 1997). This court has
held that failure to seek automatic severance as a right rises to the
level of deficient performance. Wilkerson v. State, 728 N.E.2d 239, 248-49 (Ind.
Ct. App. 2000).
II. Davidsons Claims
A. Ineffective Assistance - Failure to Move for Severance
Davidson claims that trial counsel was ineffective for failing to move to sever
the charges. Specifically, he asserts that prejudice resulted because, at the time
of his trial, the court was limited to ordering consecutive sentences to cases
that were simultaneously before the court for sentencing. Appellants brief at 9.
Thus, Davidson contends that he is entitled to relief because he could
only have received a maximum of forty-one years had the trials been severed.
To resolve this issue, we note at the time of Davidsons trial, I
§ 35-34-1-11(a), the severance statute, provided in relevant part as follows:
Whenever two or more offenses have been joined for trial in the same
indictment or information solely on the ground that they are of the same
or similar character, the defendant shall have the right to a severance of
Here, as pointed out in the FACTS, there were four separate incidents, with
four different victims, at four different times at four different locations with no
common distinctive nature or mode of operation. Thus, each offense could have been
tried without reference to any of the other charges. While the charged
offenses involved robberies, they were unrelated in all respects. As the severance
statute points out, the defendant has the right to severance of the charges
when they are joined solely on the ground that they are of the
same or similar character. Thus, the trial court lacked discretion to deny
a motion to sever the trial had one been made.
In addition to the provisions set forth in the severance statute, we note
that the relevant provisions of the sentencing statute, I.C. § 35-50-1-2,
provided as follows:
Except as provided in subsection (b), the court shall determine whether terms of
imprisonment shall be served concurrently or consecutively.
If, after being arrested for one (1) crime, a person commits another crime:
before the date the person is discharged from probation, parole or a term
of imprisonment imposed for the first crime; or
while the person is released:
Upon the persons own recognizance;
the terms of imprisonment for the crimes shall be served consecutively, regardless of
the order in which the crimes are tried and sentences are imposed.
Under the terms of the sentencing statute that then existed, our supreme court
determined that a trial court may impose consecutive sentences only when it was
contemporaneously imposing two or more sentences.
Kendrick v. State, 529 N.E.2d 1311,
1312 (Ind. 1988); see also Seay v. State, 550 N.E.2d 1284, 1289 (Ind.
See footnote Thus, in this case, the maximum sentence that Davidson could have
received was forty-one years. Specifically, the trial court could have ordered the
sentences for the convictions on attempted robbery, confinement and battery regarding the same
victim that were committed on January 1, 1989, to run consecutively. However,
in light of the provisions of the sentencing statute which applied to Davidson,
the sentences imposed on the remaining counts could only have been ordered to
run concurrent with the sentences imposed in the January 1 incident. Inasmuch
as Davidsons trial counsel was deficient for failing to seek automatic severance, the
consecutive sentences that were imposed cannot stand.
See Wilkerson, 728 N.E.2d at
B. Sentencing--Impermissible Aggravating Factors
Davidson next contends that he was improperly sentenced. Specifically, he asserts that
the sentence must be vacated because the trial court considered a number of
improper aggravating circumstances. In support of his claim, Davidson points to the
alleged erroneous aggravating factors that the trial court identified: 1) there
were multiple offenses; 2) Davidson pointed a gun at the victims; 3)
Davidson has displayed bad character because he is a criminal; 4)
the normal feelings of the victims; 5) Davidson is in need of
correctional or rehabilitative treatment best provided by commitment to a penal facility as
it relates to the use of a gun; and 6) a reduced
sentence and imposition of probation would depreciate the seriousness of the crime.
R. at 1947-52.
To resolve this issue, we initially observe that the trial court has discretion
to determine the appropriate sentence, and it may be reversed only if the
defendant shows a manifest abuse of discretion. Ford v. State, 704 N.E.2d
457, 461 (Ind. 1998). Additionally, it is within the trial courts discretion
to impose enhanced and maximum sentences. Allen v. State, 722 N.E.2d 1246,
1250 (Ind. 2000). A single aggravating factor may be sufficient to support
both the enhancement of a presumptive sentence and the imposition of consecutive sentences.
Allen v. State, 720 N.E.2d 707, 716 (Ind. 1999).
In Thacker v. State, 709 N.E.2d 3, 9 (Ind. 1999), our supreme court
outlined a trial courts responsibilities when it considers imposing a sentence that deviates
from the presumptive sentence authorized by statute:
If a trial court uses aggravating or mitigating circumstances to enhance or reduce
the presumptive sentence, or to impose consecutive sentences, it must (1) identify all
significant mitigating and aggravating circumstances; (2) state the specific reason why each circumstance
is determined to be mitigating or aggravating; and (3) articulate the courts evaluation
and balancing of the circumstances.
Inasmuch as only one properly considered aggravating factor may appropriately enhance a sentence
or justify the imposition of consecutive sentences, we need not address Davidsons claim
that each circumstance cited above was improper. Rather, we note that the
trial court in this instance determined that the risk was extremely high that
Davidson would commit other offenses if he were allowed to be back in
public. R. at 1947-48. Such is a proper aggravating circumstance as found
by the trial court. See Staton v. State, 640 N.E.2d 741, 743
(Ind. Ct. App. 1994), trans. denied. As the sentencing court is required
to consider a defendants character pursuant to I.C. § 35-38-1-7.1, the trial judge
noted that Davidsons character displayed extreme self-centeredness, exertion of control over others and
absolutely no concern for what could have happened to the victims. Contrary
to Davidsons claim, the trial court pointed to more than the mere fact
the defendant committed the crimes of which he was convicted. Appellants brief
at 17. Thus, the trial courts imposition of the maximum sentence which
was ordered to run consecutively may stand.
C. Ineffective Assistance of Appellate Counsel
Inasmuch as we have decided that Davidson received the ineffective assistance of trial
counsel with respect to the failure to move for severance of the charges,
we need not address his contention of ineffective assistance of appellate counsel for
failing to raise this issue. Similarly, because Davidson was properly sentenced with
respect to the finding of aggravating circumstances, we need not address his argument
with respect to appellate counsels failure to raise this sentencing error.
In light of our disposition of the issues set forth above, we conclude
that Davidsons trial counsel was ineffective for failing to move for severance of
the charges. We note, however, that Davidson was properly sentenced with respect
to the finding of valid aggravating circumstances. Inasmuch as Davidson was entitled
to severance of the charges as a matter of right, and consecutive sentences
could not have been imposed under the sentencing statute as it then existed,
we must reverse and remand this case to the trial court with instructions
that it vacate the order directing Davidson to serve consecutive sentences. Thus,
Davidson may only be ordered to serve an aggregate term of forty-one years.
Reversed in part and remanded with instructions.
SHARPNACK, C.J. and VAIDIK, J., concur.
Davidson had filed a
pro se petition for post-conviction relief
on September 12, 1994.
This statute has been substantially revised and is now codified
at I.C. § 35-50-1-2.
Footnote: Although not applicable to this case as Davidson was sentenced
in 1989, the 1994 amendment to I.C. § 35-50-1-2 has overturned the contemporaneity
requirement set forth in
Kendrick and Seay. See Weaver v. State, 664
N.E.2d 1169, 1170 (Ind. 1996); Wilkerson, 728 N.E.2d at 248 n. 2.