ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TAFFANEE WOODS-ONEAL STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
CHRISTOPHER L. LAFUSE
Deputy Attorney General
CHRISTY WILLIAMSON, ) ) Appellant-Defendant, ) ) vs. ) No. 07A01-0210-PC-393 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
Stevens, 770 N.E.2d at 760 (internal citations omitted).
On October 1, 1999, nineteen days before Williamsons appellate attorney filed his brief, our supreme court decided Richardson v. State, 717 N.E.2d 32 (Ind. 1999). Immediately recognized as a landmark decision, the opinion set forth a new test for analyzing double jeopardy claims under Article I, Section 14 of the Indiana Constitution. It held:
[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 elements of one challenged offense also establish the essential elements of another challenged offense.
Id. at 49. To show that two challenged offenses constitute the same offense in a claim of double jeopardy using the actual evidence test, a defendant 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.
The months immediately following Richardson saw the vacation of a number of convictions on double jeopardy grounds using the actual evidence test, where such convictions would not have been vacated previously. Most relevant to Williamsons case, on April 20, 2000, this court decided Belser v. State, 727 N.E.2d 457 (Ind. Ct. App. 2000), trans. denied. There, we applied Richardson to a scenario in which the defendant was convicted of five counts of arson. One count alleged that the defendant knowingly damaged another persons dwelling by fire, which is a Class B felony under Indiana Code Section 35-43-1-1(a)(1). The other four counts alleged that the defendant knowingly damaged the property of another by fire under circumstances that endangered human life, specifically, the lives of four separate people, which act is also a Class B felony under Indiana Code Section 35-43-1-1(a)(2). We first held that under the statutory elements test, the defendant could be convicted of both damaging anothers dwelling by fire and one count of damaging anothers property under circumstances that endangered human life, as each charge required proof of at least one essential element not contained in the other. Belser, 727 N.E.2d at 461. However, we also held, under the statutory elements test, that the defendant could not be convicted of multiple counts of damaging the property of another under circumstances that endangered human life based on endangerment to separate persons, because it was not necessary that the State show endangerment to each particular person to convict Belser of arson as long as it provides proof of circumstances that endanger human life. Id. We further held, under the actual evidence test, that the defendant could only be convicted of one count of arson total based upon the intentional setting of one fire. Id. at 462.
Williamson contends Belser and Richardson should have been argued by appellate counsel as bases for vacating all but one of his arson convictions. However, we observe that Belser was not decided until well after Williamsons appellate attorney filed his brief. For purposes of ineffective assistance of appellate counsel claims, we judge the reasonableness of appellate counsels strategic decisions based upon precedent that was available at the time the brief was filed. See Bieghler v. State, 690 N.E.2d 188, 197 n.6 (Ind. 1997); Mason v. Hanks, 97 F.3d 887, 897 (7th Cir. 1996). Thus, we will look only to the state of the law as of October 20, 1999, in determining whether appellate counsel made a reasonable strategic decision by not making a double jeopardy argument on Williamsons behalf.
We find one pre-Richardson case that might have supported a double jeopardy argument in Williamsons favor. This court held in Alexander v. State, 600 N.E.2d 549, 555 (Ind. Ct. App. 1992), that double jeopardy precluded the defendant from being convicted of eight separate criminal mischief counts based upon damage to the property of eight different parties caused by a single fire. However, the opinion provides no analysis that explains the reason for this holding and the case it cites as support for this proposition, Swafford v. State, 498 N.E.2d 1188, 1191 (Ind. 1986), is not on point. Therefore, the value of Alexander as precedent supporting a double jeopardy argument in Williamsons case would legitimately have been suspect in October 1999.
We also observe that in 1986, this court held that a defendant could only be convicted of one count of arson based upon the burning of a single dwelling. Martin v. State, 488 N.E.2d 1160, 1162 (Ind. Ct. App. 1986). Our reason for this conclusion was that the dwelling was either owned entirely by one person, or at most owned entirely by one person subject to a bank mortgage. Id. We contrasted the result in Martin to a decision by our supreme court that had held a defendant could be convicted of two counts of robbery where he had taken property from a store and the personal property of a store clerk. Id. (citing Lash v. State, 433 N.E.2d 764, (Ind. 1982)). Thus, we believe Martin and its analysis reasonably can be read as precluding multiple arson convictions where only one persons property is damaged or destroyed, but allowing them if multiple victims are involved.
On June 23, 1999, this court decided Russell v. State, 711 N.E.2d 545 (Ind. Ct. App. 1999), trans. denied. Although decided shortly before Richardson, Russell seems to have anticipated that decision somewhat in that the opinion recognizes a historical basis for the proposition that the analysis for double jeopardy claims under the Indiana Constitution should be and is different from federal double jeopardy analysis. We held that courts analyzing a state constitution double jeopardy claim based upon multiple punishments should look beyond the elements of the crimes and view the charging instruments, the jury instructions, and the proof at trial. Id. at 550. We then held the defendant could not be convicted and sentenced for both arson and reckless homicide, where the defendant was alleged in the arson charge to have endangered the life of the same person whom he also was alleged in the reckless homicide charge to have killed. [T]wo sentences were imposed for the same injurious consequences, to the same victim, during a single confrontation. . . . Accordingly, Russell is entitled to relief on double jeopardy grounds employing the Indiana Constitution and its separate analysis. Id. at 551 (emphasis added). Thus, this court, using a quasi-Richardson analysis, vacated the defendants reckless homicide conviction. In doing so, however, we used language indicating that a scenario involving a single criminal act that results in harm to multiple victims would not raise double jeopardy concerns.
A number of double jeopardy cases decided before Richardson paralleled Russell: The imposition of two sentences for the same injurious consequences which were sustained by the same victim and inflicted by the defendants singular act violatives [sic] both federal and state double jeopardy prohibitions. Hansford v. State, 490 N.E.2d 1083, 1089 (Ind. 1986) (emphasis added). In Randall v. State, 455 N.E.2d 916, 931-32 (Ind. 1983), the court held the defendant could properly be convicted of five counts of confinement arising out of a single incident where five persons were confined. In Richardson itself, Justice Sullivan concurred in Justice Dicksons lead opinion, but also stated that he was unwilling to extend double jeopardy relief beyond those situations in which our supreme court historically had done so: where multiple punishments were imposed upon a defendant who commits two crimes at the very same time against the same victim. Richardson, 717 N.E.2d at 55 (Sullivan, J., concurring) (emphasis added). Justice Boehm, joined by Justice Selby, concurred in result only in Richardson on the basis that the Indiana Constitution Double Jeopardy Clause applied only to subsequent prosecutions for the same offense, not to multiple convictions arising out of a single act. He did agree that common law and statutory considerations may preclude multiple punishments for a single act, but also stated: Under current law, everyone seems to agree that it must be possible to charge a person who kills two people with two murders. Id. at 67 (Boehm, J., concurring). As for Justice Dicksons actual evidence test, nothing in the lead opinion suggests that application of that test would necessarily prohibit multiple convictions in a case involving a single act but harm to multiple victims.
Later applications of the Richardson actual evidence test clearly indicate that, in fact, it does not prohibit multiple convictions for a single criminal act where multiple victims were harmed thereby. In 2002, our supreme court considered whether a defendant could be convicted of one count of arson and three counts of felony murder based upon three deaths and one bodily injury that arose out of one fire. Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002). First, our supreme court noted its recent clarification of the actual evidence test and that it does not prohibit multiple convictions where 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. Id. (quoting Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002) (emphasis added in Bald)). It then concluded that because the Class A arson conviction required proof of one persons injury and each felony murder conviction required evidence of a separate victims death, each conviction required proof of at least one unique evidentiary fact and there was no double jeopardy violation under the actual evidence test. Id. The court also noted that situations in which separate victims are involved has been a scenario that does not constitute double jeopardy. Id. at 1172 n.4 (citing Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring)). Cf. also Burnett v. State, 736 N.E.2d 259, 263 n.3 (Ind. 2000) (holding that multiple confinement convictions do not violate double jeopardy where there are multiple victims), overruled on other grounds by Ludy v. State, 784 N.E.2d 459 (Ind. 2003).
Therefore, we conclude pursuant to Bald that Williamsons five arson convictions do not violate Indianas Double Jeopardy Clause, in that each charge in the information names a different victim whose property worth at least $5,000 was destroyed by the blaze that Williamson started, and each conviction required unique proof with respect to each victim. See footnote Furthermore, we conclude that Williamsons appellate counsel made a reasonable strategic decision not to pursue a double jeopardy claim at the time of his direct appeal, notwithstanding the advent of the Richardson actual evidence test, the result in Alexander, and whatever speculative possibility existed that we might have ruled in Williamsons favor in the spring of 2000. The bulk of precedent available to counsel when he filed his brief would have led to a reasonable conclusion that double jeopardy is not implicated where a defendant is convicted of multiple crimes based upon the commission of a single act that results in harm to multiple victims. See footnote Such a conclusion reached in October 1999, moreover, would be proven correct by the Bald decision in 2002. We hold that appellate counsels conduct did not fall below reasonable professional norms when he failed to make a double jeopardy argument on Williamsons behalf.