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, 

collateral estoppel, or the law of the 

case.

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS GREGORY F. ZOELLER

Public Defender of Indiana Attorney General of Indiana

J. MICHAEL SAUER MONIKA PREKOPA TALBOT

Deputy Public Defender Deputy Attorney General

Indianapolis, Indiana Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

CLAY R. FIRESTONE, )

)

Appellant-Petitioner, )

)

vs. ) No. 32A01-1201-PC-32

)

STATE OF INDIANA, )

)

Appellee-Respondent. )

APPEAL FROM THE HENDRICKS SUPERIOR COURT

The Honorable Karen M. Love, Judge

Cause No. 32D03-0606-PC-3

September 13, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

SHARPNACK, Senior Judge
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STATEMENT OF THE CASE

Clay Firestone appeals the post-conviction court’s denial of his petition for postconviction relief. We affirm and remand with instructions.

ISSUES

Firestone presents one issue for our review, which we restate as: 

I. Whether Firestone received effective assistance of trial counsel.

In addition, we raise sua sponte:

II. Whether the trial court erred when it failed to attach the habitual offender 

enhancement to a specific conviction. 

FACTS AND PROCEDURAL HISTORY

In 2004, Firestone was charged with numerous offenses based upon an incident in 

January 2004 in which S.W. was sexually attacked by Firestone and his cousin, Bradley 

Griffin. Following a jury trial, Firestone was found guilty of rape and criminal deviate 

conduct, both as B felonies. He was also found to be an habitual offender. On direct 

appeal, this Court affirmed Firestone’s convictions. See Firestone v. State, 838 N.E.2d 

468 (Ind. Ct. App. 2005).

In 2006, Firestone filed a pro se petition for post-conviction relief claiming 

ineffective assistance of trial counsel. This petition was amended by counsel in July 

2009, and a hearing was held on the amended petition on October 4, 2011. On December 

30, 2011, the court issued an order denying Firestone’s petition. This appeal ensued.

DISCUSSION AND DECISION
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Firestone appeals from a negative judgment, and, to the extent his appeal turns on 

factual issues, he must convince this Court that the evidence as a whole leads unerringly 

and unmistakably to a decision opposite that reached by the post-conviction court. See 

Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001). Thus, we will disturb the decision 

of the post-conviction court only if the evidence is without conflict and leads only to a 

conclusion contrary to the result of the post-conviction court. Id.

I. ASSISTANCE OF COUNSEL

Firestone contends that he received ineffective assistance of trial counsel. Because 

he did not raise this issue in his direct appeal, see Firestone, 838 N.E.2d at 470, it is 

available to him in post-conviction proceedings. See Woods v. State, 701 N.E.2d 1208, 

1216 (Ind. 1998) (holding that ineffective assistance of trial counsel may be raised on 

direct appeal, but if it is not, it is available in post-conviction proceedings irrespective of 

nature of issues claimed to support competence or prejudice prongs).

In general, claims of ineffective assistance of counsel are governed by the familiar 

two-part standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 

2052, 80 L. Ed. 2d 674 (1984). A defendant is required to establish both (1) that 

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

prejudiced the defendant. Johnson v. State, 948 N.E.2d 331, 334 (Ind. 2011), cert. 

denied, 132 S. Ct. 1575, 182 L. Ed. 2d 194 (2012). The deficient performance prong 

requires a showing that counsel’s representation fell below an objective standard of 

reasonableness. Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010). The prejudice 
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prong requires a showing that counsel’s errors were so serious as to render the result of 

the trial unreliable. Id. Counsel’s performance is presumed effective, and a defendant 

must offer strong and convincing evidence to overcome this presumption. Id. Moreover, 

failure to satisfy either prong of the two-part test will cause the defendant’s claim to fail. 

Henley v. State, 881 N.E.2d 639, 645 (Ind. 2008). If we can easily dispose of an 

ineffective assistance claim based upon the prejudice prong, we may do so without 

addressing whether counsel’s performance was deficient. Id.

First, Firestone alleges that his trial counsel was ineffective for failing to object or 

otherwise take steps to prevent the jury from hearing certain references to his unrelated 

charges and periods of incarceration. Specifically, one of the detectives in the case 

testified at trial, without objection, that a branch of the Indianapolis Police Department 

creates photo line ups of people that are incarcerated. He went on to explain that the 

computer pulls pictures of people from its database that look similar to the suspect in 

order to create the line up. The detective testified that a line up that included Firestone 

was created “because he’s been incarcerated, or he had been incarcerated before at that 

jail.” Trial Tr. p. 295. In addition, State’s Exhibit 18, which was admitted at trial 

without objection, is the photo line up that was created to include Firestone’s picture, and

contains the words “Indianapolis Police Department” across the top of the page. Finally, 

State’s Exhibit 19 is an audio recording of the police interview with Firestone. This 

exhibit was also admitted without objection. Each juror was given a transcript of the 

interview, and the recorded interview was played for the jury. Exhibit 19 included 
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statements by the detective that they were at the Marion County jail with Firestone who 

was currently in custody with other cases pending. See id. at 309, 318. 

At the post-conviction hearing, Firestone’s trial counsel testified that he recalled 

very little information from Firestone’s trial and that he would normally seek to exclude 

such evidence. Indeed it does appear that an objection probably would have been granted 

by the trial court with regard to this evidence. However, Firestone’s counsel may have 

prudently determined not to object to the detective’s testimony regarding Firestone’s 

prior incarceration and to the photo line up presented in Exhibit 18 so as not to call undue 

attention to the information. See, e.g., Benefield v. State, 945 N.E.2d 791, 799-800 (Ind. 

Ct. App. 2011) (determining that counsel had strategic reason for decision not to object to 

evidence because objection may have been more damaging than evidence).

In addition, counsel’s failure to object to the admission of Exhibit 19 containing 

Firestone’s statement could very well have been a matter of strategy. By not objecting to 

Exhibit 19, counsel refrained from drawing unwanted attention to the mere mention of

Firestone’s incarceration and instead accomplished the more important task of getting 

Firestone’s version of events, in which he denied any physical contact with S.W., in front 

of the jury. Although Firestone did eventually testify in his own defense, this statement 

was already admitted so that he could weigh his options at the point in trial when he 

would have to decide whether to testify. Further, by allowing Exhibit 19 into evidence 

and by testifying, Firestone was able to twice deny wrongdoing to the jury.
6

Firestone also argues that his trial counsel knew about the photo line up and the 

recorded interview prior to trial and therefore could have filed motions to redact and/or 

motions in limine with regard to these evidentiary items. In assigning this knowledge to 

his trial counsel, Firestone does not direct us to any testimony or evidence in support of 

his claim. Moreover, based upon our analysis of resulting prejudice, counsel’s pretrial 

knowledge is of no moment.

With regard to the prejudice prong, the evidence reveals that the references to 

Firestone’s criminal history were extremely brief and vague. Additionally, the State did 

nothing to emphasize the evidence of Firestone’s criminal history and the jury received 

no information as to the nature of the previous charges. Further, the jurors had just heard 

testimony that the police department creates photo line ups so the fact that the line up 

contained the words “Indianapolis Police Department” should not have caused undue 

concern. Furthermore, the State’s evidence was compelling. S.W. testified 

unequivocally that while she was held down by Griffin, Firestone inserted his penis into 

her vagina against her will. Firestone then, against S.W.’s will, inserted his penis into her 

mouth and later again inserted his penis into her vagina. Firestone has not met his burden 

of showing that counsel’s errors rendered the result of his trial unreliable. 

Next, Firestone asserts that he was prejudiced by his trial counsel’s failure to 

object to or otherwise attempt to prevent the jury from hearing evidence of the possibility 

that a date rape drug had been administered to S.W. On this issue, Firestone presents no 
7

argument as to his counsel’s performance but rather focuses solely on the prejudice prong 

of the two-part standard.

At trial, State’s Exhibit 24 was admitted by stipulation. Exhibit 24 is a lab report 

showing the results of testing on S.W.’s urine sample using a date rape drug panel. The 

results were negative for a wide range of drugs except the stimulant Phentermine, which 

was due to a weight loss medication taken by S.W. The State also presented the 

testimony of the emergency room nurse. She testified that she is a forensic nurse 

examiner in the sexual assault program at the hospital as well as the coordinator of the 

program. The nurse testified that S.W. reported feeling more drunk than normal, 

vomiting numerous times, and being nauseous, dizzy, and weak. She explained that the 

symptoms suffered by S.W. can be caused by “date rape drugs” or “drugs used to 

facilitate sexual assault” being added to a drink to speed up the effects of alcohol. Trial 

Tr. p. 384. The nurse further testified that date rape drugs usually leave the body within 

eight to twelve hours, or sooner if the person vomits or urinates. The nurse noted that 

S.W. had indicated she had urinated and vomited several times between the time of the 

assault and her visit to the emergency room and that the assault had occurred at least 

fourteen hours prior to S.W. visiting the emergency room. 

As to the prejudice Firestone alleges he suffered due to the admission of this 

evidence, we note there was never any testimony that S.W. had probably been given a 

date rape drug. Although the nurse testified that some of S.W.’s complaints were like 

those the nurse had observed in others who had been drugged, State’s Exhibit 24 was 
8

negative for any date rape drugs in S.W.’s system. Moreover, on cross-examination by 

Firestone’s trial counsel, the nurse confirmed that the tests on S.W.’s urine sample were 

negative for all the drugs on the date rape drug panel except the stimulants contained in 

the diet drug S.W. had been taking. The nurse also admitted on cross-examination that it 

was possible that the symptoms S.W. experienced could have been caused by something 

other than a date rape drug. During his testimony, Firestone stated that he had never seen 

a date rape drug, did not discuss date rape drugs with Griffin, and did not see Griffin put 

anything into S.W.’s drink. Finally, the State’s evidence was strong, and S.W.’s 

testimony was unequivocal. Firestone has failed to fulfill his burden of showing 

prejudice to the extent that the outcome of his trial would have been different.

II. HABITUAL OFFENDER ENHANCEMENT

We raise, sua sponte, the issue of whether the trial court erred when it failed to 

attach the habitual offender enhancement to a specific conviction in sentencing Firestone. 

The trial court sentenced Firestone to eighteen years on his conviction of rape (Count I), 

eighteen years on his conviction of criminal deviate conduct (Count III), to be served 

consecutively, and twenty-eight years for his adjudication as an habitual offender. See

Appellant’s App. in Direct Appeal p. 4; Trial Tr. pp. 741-42. 

In imposing the habitual offender enhancement, the trial court did not specify 

which conviction it was enhancing. As we have previously noted, “when defendants are 

convicted of multiple offenses and found to be habitual offenders, trial courts must 

impose the resulting penalty enhancement on only one of the convictions and must 
9

specify the conviction so enhanced.” Davis v. State, 843 N.E.2d 65, 67 (Ind. Ct. App. 

2006) (citing McIntire v. State, 717 N.E.2d 96, 102 (Ind. 1999)). Failure to specify 

requires remand to the trial court to correct the sentence with regard to the habitual 

offender enhancement. Id. Thus, the omission here constitutes error for which remand is 

required.

CONCLUSION

Firestone has not shown such prejudice as would render the result of his trial 

unreliable. Therefore, we affirm the post-conviction court’s denial of relief.

However, we remand to the post-conviction court with instructions to assign the 

habitual offender enhancement to one of Firestone’s convictions.

Affirmed and remanded with instructions.

NAJAM, J., and PYLE, J., concur.