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.

APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:

DONALD WARE GREGORY F. ZOELLER

Pendleton, Indiana Attorney General of Indiana

RYAN D. JOHANNINGSMEIER

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

DONALD WARE, )

)

Appellant-Defendant, )

)

vs. ) No. 49A02-1304-PC-370

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT 

The Honorable Marc T. Rothenberg, Judge 

The Honorable Amy J. Barbar, Magistrate

Cause No. 49G02-0508-PC-130877

January 21, 2014

 

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge 
2

Donald Ware (“Ware”) appeals the denial of his petition for post-conviction relief, 

contending that the post-conviction court erred when it found that he was not denied the 

effective assistance of trial counsel and appellate counsel. He raises the following, restated 

issues for our review:

I. Whether Ware’s trial counsel was ineffective for failing to submit an 

alternative jury instruction for murder on the basis that the instruction 

given omitted the essential element of the absence of sudden heat and 

for failing to object to the jury instruction regarding the consideration 

of lesser included offenses; and

II. Whether Ware’s appellate counsel was ineffective for failing to raise 

an issue regarding whether Ware’s convictions for two counts of 

criminal recklessness violated double jeopardy.

We affirm.

FACTS AND PROCEDURAL HISTORY

The facts supporting Ware’s convictions as set forth by this court in his direct appeal 

are as follows:

On July 24, 2005, a group of teenage boys gathered in an area near 

the intersection of Rockville Road and Girls School Road in Marion County 

for the purpose of throwing eggs at passing cars. At one point, the boys 

struck Lisa Baker’s car. Baker stopped and began yelling that she was going 

to call the police. The boys then struck a pickup truck, which was later 

determined to be driven by Ware. Ware stopped, exited his truck, and yelled 

at the boys. He then returned to his truck and drove to where Baker had 

stopped her car. While talking to Baker, Ware made racially derogatory 

comments about the boys and told Baker that he had a rifle and was going to 

get the boys. Ware asked Baker where the boys were, and after Baker pointed 

in the general direction, Ware drove after the boys. While the boys were 

running from Ware’s truck, two shots were fired, killing Brandon Dunson 

(“Dunson”) and wounding Michael Dyer (“Dyer”).

Tracy Nash was the first police officer to arrive on the scene. Officer 

Nash was unaware that there had been a shooting, and was on the scene to 

investigate reports of boys throwing eggs at passing vehicles. He noticed 
3

Ware’s truck because it was traveling at a high rate of speed and saw it pull

into a public storage facility’s parking lot. When Officer Nash pulled in 

behind the truck, Ware exited his truck and approached the driver’s side of 

Officer Nash’s vehicle. Ware told Officer Nash that he had been struck in 

the head by an egg, and told Officer Nash that the boys who had thrown the 

eggs were running behind the public storage facility. Officer Nash told Ware 

not to leave, and went to look for the boys. When Officer Nash returned to 

the parking lot after an unsuccessful search for the boys, Ware had left the 

scene.

Dunson’s friends who were running with him were afraid of being 

caught and did not stop when Dunson was shot. Later that night, one of 

Dunson’s friends who had not participated in the egging became concerned 

about Dunson and went to look for him. He found Dunson’s body in the 

grass near the public storage facility and called the police. After learning 

that a shooting had occurred, the police turned their attention to identifying 

the man with whom Baker and Officer Nash spoke. Baker was shown a 

photographic array and initially identified, with ninety percent confidence, 

Chester Williams as the man with whom she spoke. After being shown a 

second photographic array, Baker identified Williams with one hundred 

percent confidence. However, further investigation ruled out Williams as a 

suspect. A few days later, the police received an anonymous phone call 

indicating that a man named “Donny” was responsible for shooting Dunson, 

and that he lived in Avon, Indiana, and drove a red pickup truck. Police then 

began surveillance of Ware’s house and determined that Ware was “Donny.”

Officers then showed a photographic array to Officer Nash, who identified 

Ware as the man with whom he spoke the night of the shooting. The police 

then applied for a warrant to search Ware’s house and vehicle. 

. . . .

After receiving the search warrant, officers found eggshells and 

residue in and on Ware’s truck, and found roughly forty-nine grams of 

marijuana in Ware’s residence. No gun was recovered during this search or 

throughout the remainder of the investigation. Officers took [Terri] 

Eberwein, who was at the residence at the time of the search, to the police 

station for questioning. Eberwein told officers that upon returning home the 

night of the shooting, Ware had told her he had been egged and had “said 

something about, you know shooting but he didn't say at what or anything,” 

and that he said “he fired some rounds or some shots.” State’s Ex. 113. The 

next day, officers arrested Ware without a warrant and took him in for 

questioning. Ware admitted being on the scene that night and speaking to 

Baker and Officer Nash, but denied shooting at the boys or having a gun.
4

Prior to trial, Ware filed a motion to suppress the evidence obtained 

as a result of the search and arrest, arguing that probable cause supported 

neither. After a hearing, the trial court denied Ware’s motion. At trial, the 

boys who had participated in the egging testified. All the boys testified that 

they saw a red or dark-colored pickup truck chasing them. Three of the boys 

testified that at some point while they were leaving the scene they saw a truck 

driving around in the area with someone standing in the truck’s bed. The 

jury also heard the testimony of Officer Nash and Baker, who both identified 

Ware as the person with whom they spoke that night. Eberwein also testified, 

and admitted telling officers that Ware had mentioned shooting a gun the 

night of the incident, but said that when she gave her statement to police, she 

had been intimidated, was under the influence of prescription and illegal 

drugs, and had falsified some information in her statement. The jury found 

Ware guilty of murder, battery, and two counts of criminal recklessness.

Ware filed a motion for the trial court to enter alternative final 

judgment and a motion for a new trial. The trial court denied both motions 

at the beginning of the sentencing hearing. The trial court sentenced Ware 

to sixty years for murder, six years for battery, and two years for each of the 

criminal recklessness counts. The trial court then ordered that all sentences 

be served consecutively based on the number of victims, for an aggregate 

sentence of seventy years.

Ware v. State, 859 N.E.2d 708, 713-15 (Ind. Ct. App. 2007), trans. denied. 

During discussion of the jury instructions at trial, Ware’s trial counsel, Kathleen

Sweeney (“Sweeney”), objected to the voluntary manslaughter instruction on two grounds: 

(1) the instruction should not have been given because voluntary manslaughter was not an 

inherently included offense; and (2) the instruction was misleading. Trial Tr. at 908-09. 

At a later conference regarding the instructions, Sweeney maintained that the instruction 

should not be given, but withdrew the objection that the language was misleading. Id. at 

1156-57. 

After Ware was found guilty of murder, he filed a motion under Indiana Trial Rule 

50 asking for the trial court to find him guilty of voluntary manslaughter as a lesser-
5

included offense of murder. The motion also requested that the trial court find that Ware 

was not guilty of the two counts of Class D felony criminal recklessness. Ware also filed 

a motion for a new trial, in which he stated that his defense theory at trial was, in part, to 

show that Williams was the shooter. At sentencing, Sweeney again moved for the trial 

court to enter judgment on voluntary manslaughter instead of murder. Id. at 1327-28. 

Ware appealed and raised four issues on direct appeal: (1) evidence obtained 

through a search performed pursuant to a search warrant and statements made following a 

warrantless arrest were not properly admitted; (2) evidence that the State did not disclose 

to Ware prior to trial was not properly admitted; (3) Ware’s convictions were not supported 

by sufficient evidence; and (4) Ware’s sentence was inappropriate. Ware’s convictions 

were affirmed by this court. Ware sought rehearing and transfer, which were both denied.

Ware filed his pro se petition for post-conviction relief on April 9, 2012. On 

September 19, 2012, Ware filed an amended petition for post-conviction relief, alleging 

that his trial counsel was ineffective for allowing the trial court to give defective jury 

instructions on murder, voluntary manslaughter, reckless homicide and sudden heat and 

for failing to move to vacate the murder conviction for an entry of conviction for voluntary 

manslaughter under Indiana Trial Rule 59(J).1 Ware also alleged that his appellate counsel 

was ineffective for failing to raise on direct appeal the issue of double jeopardy regarding 

his two convictions for criminal recklessness. 

 

1 We note that, although Ware raised an issue regarding the failure to move to vacate his murder 

conviction in his petition for post-conviction relief, he does not raise the denial of relief on such issue here 

on appeal. Therefore, we do not reach that issue here.
6

On November 14, 2012, an evidentiary hearing was held on Ware’s petition. At 

trial, Ware had been represented by both Jackie Butler (“Butler”) and Sweeney. At the 

post-conviction hearing, Butler testified that the defense theory at trial was that Ware did 

not commit the crimes. P-CR Tr. at 6, 21. Butler stated that she conferred with both Ware 

and his family in developing the defense theory, and she believed that Ware understood 

the legal issues. Id. at 6, 7. Ware’s attorney on direct appeal, Ann Sutton (“Sutton”) also 

testified at the hearing. She stated that she conferred with Ware and both trial attorneys 

about the issues to raise on appeal, including the theory that Ware was innocent. Id. at 24. 

Sutton testified that she raised an issue regarding sufficiency of the evidence as to one of 

the criminal recklessness convictions but did not challenge both convictions. Id. at 25-26. 

She further testified that she did not recall why she did not challenge the criminal 

recklessness convictions based on double jeopardy. Id. at 28. On April 2, 2013, after 

receiving proposed findings of fact and conclusions of law from both sides, the postconviction court denied Ware’s petition for post-conviction relief. Ware now appeals.

DISCUSSION AND DECISION

Ware argues that the post-conviction court erroneously denied his petition for postconviction relief. Post-conviction proceedings do not afford the petitioner an opportunity 

for a super appeal, but rather, provide the opportunity to raise issues that were unknown or 

unavailable at the time of the original trial or the direct appeal. Ben-Yisrayl v. State, 738 

N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164 (2002); Wieland v. State, 848 

N.E.2d 679, 681 (Ind. Ct App. 2006), trans. denied, cert. denied, 549 U.S. 1038 (2006). 

The proceedings do not substitute for a direct appeal and provide only a narrow remedy for 
7

subsequent collateral challenges to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The 

petitioner for post-conviction relief bears the burden of proving the grounds by a 

preponderance of the evidence. Ind. Post-Conviction Rule 1(5). 

When a petitioner appeals a denial of post-conviction relief, he appeals a negative 

judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007), trans. denied. The 

petitioner must establish that the evidence as a whole unmistakably and unerringly leads to 

a conclusion contrary to that of the post-conviction court. Id. We will disturb a postconviction court’s decision as being contrary to law only where the evidence is without 

conflict and leads to but one conclusion, and the post-conviction court has reached the 

opposite conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans. 

denied. The post-conviction court is the sole judge of the weight of the evidence and the 

credibility of witnesses. Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. 

denied. We accept the post-conviction court’s findings of fact unless they are clearly 

erroneous, and no deference is given to its conclusions of law. Fisher, 878 N.E.2d at 463.

I. Ineffective Assistance of Trial 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 (1984). Perry v. State, 904 

N.E.2d 302, 308 (Ind. Ct. App. 2009) (citing Pinkins v. State, 799 N.E.2d 1079, 1093 (Ind.

Ct. App. 2003), trans. denied), trans. denied. First, the defendant must show that counsel’s 

performance was deficient. Id. 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 
8

Fourteenth Amendments. Id. Second, the defendant must show that the deficient 

performance resulted in prejudice. Id. 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. Id. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome. Id.

We will not lightly speculate as to what may or may not have been an advantageous 

trial strategy, as counsel should be given deference in choosing a trial strategy that, at the 

time and under the circumstances, seems best. Id. (citing Whitener v. State, 696 N.E.2d 

40, 42 (Ind. 1998)). If a claim of ineffective assistance can be disposed of by analyzing 

the prejudice prong alone, we will do so. Id. (citing Wentz v. State, 766 N.E.2d 351, 360 

(Ind. 2002)).

Ware first contends that his trial counsel was ineffective for failing to submit an 

alternate jury instruction for murder because the instruction given omitted the essential 

element of the absence of sudden heat. He argues that, when evidence supporting the 

existence of sudden heat has been presented, the State must prove the absence of sudden 

heat to obtain a murder conviction. Ware asserts that, here, the instructions given by the 

trial court failed to properly instruct the jury, and his trial counsel did not tender an 

instruction that would have informed the jury as to the State’s burden. He therefore claims 

that he was prejudiced because the improper instructions potentially caused a wrongful 

conviction for murder, and the post-conviction court erred in finding his counsel was not 

ineffective.
9

It is well settled in Indiana that sudden heat is not an element of voluntary 

manslaughter. Eichelberger v. State, 852 N.E.2d 631, 636 (Ind. Ct. App. 2006) (citing 

Boesch v. State, 778 N.E.2d 1276, 1279 (Ind. 2002)), trans. denied. Rather, once a 

defendant presents evidence of sudden heat, the State bears the burden of disproving its 

existence beyond a reasonable doubt. Id. (citing Ind. Code § 35-42-1-3(b) (“The existence 

of sudden heat is a mitigating factor that reduces what otherwise would be murder under 

section 1(1) of this chapter to voluntary manslaughter.”)). An instruction assigning the 

burden of affirmatively proving sudden heat to the State is erroneous as a matter of law.

Id. Additionally, a trial court’s failure to give a jury instruction explaining that the State 

must negate the presence of sudden heat beyond a reasonable doubt, when requested, 

necessitates the granting of a new trial. Id. (citing Harrington v. State, 516 N.E.2d 65, 66 

(Ind.1987)). Our Supreme Court has stated that the State must prove the absence of sudden

heat to obtain a murder conviction when the defendant has asserted the issue at trial, but 

added that it is well settled in Indiana that there is no implied element of the absence of 

sudden heat on a murder charge. Conner v. State, 829 N.E.2d 21, 24 (Ind. 2005). 

In the present case, the instructions at issue read as follows:

INSTRUCTION NO. 21A

On occasion, either because of the nature of the crime(s) which is/are charged 

or because of the evidence that is presented during the trial, the law permits 

the Jury to consider whether the Defendant is guilty of certain charges that 

are not explicitly mentioned in the Information. These charges are called 

included offenses. They are called included offenses because they are 

offenses which necessarily must be committed as a part of the charged 

offense or because the evidence presented during trial can lead to a finding 

that the crime which was committed was as serious, or less serious, than the 

crime charged.
10

If you find the Defendant not guilty of the charged offense, then you may 

consider whether the Defendant is guilty of the included offense.

All of the instructions that I give you are to be applied to your deliberations 

whether you are considering a charged offense or an included offense. In 

other words, you may not convict the Defendant of any crime unless the State 

has proven the crime’s applicable elements beyond a reasonable doubt.

You must not look upon the included offense(s) as an opportunity to 

compromise the differences among yourselves.

INSTRUCTION NO. 21B

The crime of Murder, a felony, with which the Defendant is charged in Count 

1, is defined as follows:

“A person who knowingly or intentionally kills another human being 

commits Murder, a felony.”

Included in the charge of Murder in this case is the crime of Voluntary 

Manslaughter that is defined as follows:

“A person who knowingly or intentionally kills another human being while 

acting under sudden heat commits Voluntary Manslaughter, a Class B felony. 

The offense is a Class A felony if it is committed by means of a deadly 

weapon.”

Sudden heat is a mitigating factor that reduces what otherwise would be 

Murder to Voluntary Manslaughter. The State has the burden of proving 

beyond a reasonable doubt that the Defendant was not acting under sudden 

heat. 

To convict the Defendant of Murder, the State must prove each of the 

following elements beyond a reasonable doubt:

1. The Defendant, Donald Ware,

2. knowingly

3. killed Brandon Chadwick Dunson-Taylor, another human being.

If the State failed to prove each of these elements beyond a reasonable doubt, 

you must find the Defendant not guilty.
11

If the State did prove each of these elements beyond a reasonable doubt, but 

the State failed to prove beyond a reasonable doubt that the Defendant was 

not acting under sudden heat, you may find the Defendant guilty of Voluntary 

Manslaughter, a Class B felony, as covered under Count 1. If your finding 

is that the Defendant committed Voluntary Manslaughter, not Murder, and if

you further find beyond a reasonable doubt that the offense was committed 

by means of a deadly weapon, you may find the defendant guilty of 

Voluntary Manslaughter, a Class A felony, as covered under Count 1.

If the State did prove beyond a reasonable doubt that the Defendant 

knowingly killed Brandon Chadwick Dunson-Taylor, and the State also did 

prove beyond a reasonable doubt that the Defendant acted without sudden 

heat, you may find the Defendant guilty of Murder, a felony, as charged in 

Count 1.

If you find the Defendant did not commit Murder or either type of Voluntary 

Manslaughter, then you may consider whether or not the Defendant 

committed the crime of Reckless Homicide, a Class C felony. Reckless 

Homicide, a Class C felony covered under Count 1, is defined as follows:

“A person who recklessly kills another human being commits Reckless 

Homicide, a Class C felony.”

To convict the Defendant, the State must prove each of the following 

elements beyond a reasonable doubt:

1. The Defendant, Donald Ware,

2. recklessly

3. killed Brandon Chadwick Dunson-Taylor.

If the State failed to prove each of these elements beyond a reasonable doubt, 

then you may find the Defendant not guilty.

If the State did prove each of these elements beyond a reasonable doubt, then 

you may find the Defendant [guilty] of Reckless Homicide, a Class C felony 

covered under Count 1.

Appellant’s App. at 60-63. 

Ware’s trial counsel objected to the voluntary manslaughter instruction on two 

grounds: (1) voluntary manslaughter was not an inherently-included offense in this case; 
12

and (2) the instruction was misleading. Trial Tr. at 908-09. At a later instruction 

conference, his attorney withdrew the objection that the language of the instruction was 

misleading, but maintained that the objection that the instruction should not be given 

because voluntary manslaughter was not an inherently-included offense. Id. at 1156-57. 

Ware’s trial counsel did not submit any alternative instructions.

Here, the jury was instructed that, in order to prove the offense of murder, if there 

is evidence of sudden heat, the State bears the burden of negating the existence of sudden 

heat beyond a reasonable doubt. The instruction gave the jury the option of finding Ware 

guilty of voluntary manslaughter as an alternative to murder if the State failed to prove 

beyond a reasonable doubt that he was not acting under sudden heat. The instruction also 

correctly informed the jury that the State had to prove beyond a reasonable doubt both that 

Ware had killed the victim and that he had acted without sudden heat before it could find 

Ware guilty of murder. Therefore, the jury was properly instructed that the burden 

remained with the State for proving lack of sudden heat. Ware’s trial counsel was not 

ineffective for not proposing an alternative instruction.

Ware relies on Sanders v. Cotton, 398 F.3d 572 (7th Cir. 2005) and Eichelberger,

852 N.E.2d 631, to support his argument that his trial counsel should have proposed an 

alternative instruction. However, we find those two cases to be distinguishable from the 

present case. In both of those cases, the jury instructions incorrectly included the existence 

of sudden heat as an element of voluntary manslaughter and informed the jury that the State 

had to prove the existence of sudden heat beyond a reasonable doubt. Sanders, 398 F.3d 

at 582; Eichelberger, 852 N.E.2d at 635. Further, in those cases, even though the voluntary 
13

manslaughter instruction stated that the existence of sudden heat was a mitigating factor 

that reduced what would otherwise be murder to voluntary manslaughter, the jury was not 

properly informed that the State had the burden of proof for showing the absence of sudden 

heat to obtain a murder conviction. Sanders, 398 F.3d at 582-83; Eichelberger, 852 N.E.2d 

at 639. Here, the instruction given properly instructed the jury that the State had to prove 

the absence of sudden heat beyond a reasonable doubt before the jury could find Ware 

guilty of murder. We, therefore, conclude that Ware’s trial counsel was not deficient for 

not proposing an alternative jury instruction, and the post-conviction court did not err in 

denying Ware’s petition based on this contention.

Ware next argues that his trial counsel was ineffective for allowing misleading jury 

instructions that precluded the jury’s consideration of lesser included offenses. He 

contends that Instruction 21A was misleading because it was both conditional and optional, 

which allowed the jury to preclude the consideration of lesser included offenses. He asserts 

that the consideration of the included offenses was conditional on the finding of not guilty 

for murder and optional because of the non-mandatory phrase, “you may consider.” 

Appellant’s Br. at 17. He claims that he was prejudiced by the jury instructions because 

the errors contained in them prevented a reasonable jury from finding him guilty of 

voluntary manslaughter instead of murder.

Jury instructions are considered as a whole and in reference to each other. Santiago 

v. State, 985 N.E.2d 760, 761 (Ind. Ct. App. 2013), trans. denied. Here, Instruction 21A 

was not misleading because Instruction 21B simultaneously instructed the jury of the 

State’s burden of proving the absence of sudden heat before the jury could find Ware guilty 
14

of murder. Further, we also find the present case distinguishable from Roberson v. State, 

982 N.E.2d 452 (Ind. Ct. App. 2013), on which Ware relies for his argument. There, the 

jury was instructed on the elements of murder and informed that it did not need to consider 

the lesser-included offenses, including voluntary manslaughter, if it found that the State 

had proven the elements of murder, and it was not informed that sudden heat would 

mitigate murder to voluntary manslaughter. Id. at 460. However, in the present case, 

Instruction 21B did inform the jury that the State had the burden of disproving the existence 

of sudden heat before the jury could find Ware guilty of murder. Appellant’s App. at 61-

62. We, therefore, conclude that the jury was sufficiently instructed, and Ware’s trial 

counsel was not deficient for not objecting to the jury instructions as misleading. The postconviction court did not err in finding that Ware’s trial counsel was not ineffective and in 

denying Ware’s argument as to the performance of his trial counsel.

II. Ineffective Assistance of Appellate Counsel

Ware contends that he received the ineffective assistance of his appellate counsel. 

The standard of review for a claim of ineffective assistance of appellate counsel is the same 

as that for trial counsel. Massey v. State, 955 N.E.2d 247, 257 (Ind. Ct. App. 2011) (citing 

Bieghler v. State, 690 N.E.2d 188, 192 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998)). 

The petitioner must show that counsel’s performance was deficient in that counsel’s 

representation fell below an objective standard of reasonableness and that but for appellate 

counsel’s deficient performance, there is a reasonable probability that the result of the 

appeal would have been different. Id. at 257-58 (citing Overstreet v. State, 877 N.E.2d 

144, 165 (Ind. 2007), cert. denied, 555 U.S. 972 (2008)). As with ineffective assistance of 
15

trial counsel claims, if it is easier to dispose of an ineffectiveness claim on the ground of 

lack of sufficient prejudice, that course should be followed. Id. at 258 (citing Timberlake 

v. State, 753 N.E.2d 591, 603 (Ind. 2001), cert. denied, 537 U.S. 839 (2002)). There are 

three different grounds for claims of ineffective assistance of appellate counsel: (1) 

counsel’s actions denied the defendant access to appeal; (2) counsel failed to raise issues 

on direct appeal resulting in waiver of those issues; and (3) counsel failed to present issues 

well. Id. (citing Wrinkles v. State, 749 N.E.2d 1179, 1203 (Ind. 2001), cert. denied, 535 

U.S. 1019 (2002)). 

Ware argues that his appellate counsel was ineffective for failing to raise the issue 

of double jeopardy on his two Class D felony criminal recklessness convictions. He asserts 

that these two convictions violated double jeopardy because the same evidence used to 

convict him of the offenses of murder and battery, the two shots fired, was the same 

evidence used to convict him of the two criminal recklessness charges. Ware contends that 

this double jeopardy issue was significant and obvious from the record and clearly stronger 

than the issues actually raised by his appellate counsel on direct appeal. He, therefore,

claims that his appellate counsel was ineffective, and his post-conviction petition should 

have been granted.

“Ineffective assistance is very rarely found in cases where a defendant asserts that 

appellate counsel failed to raise an issue on direct appeal.” Reed v. State, 856 N.E.2d 1189, 

1196 (Ind. 2006). This is so because the choice of what issues to raise on appeal is one of 

the most important strategic decisions appellate counsel makes. Massey, 955 N.E.2d at 

258 (citing Stevens v. State, 770 N.E.2d 739, 760 (Ind. 2002), cert. denied, 540 U.S. 830 
16

(2003)). To establish deficient performance for failing to raise an issue, the petitioner must 

show that the unraised issue was significant and obvious on the face of the record and that 

it was clearly stronger than the issues raised. Id. (citing Fisher v. State, 810 N.E.2d 674, 

677 (Ind. 2004)). “‘We give considerable deference to appellate counsel’s strategic 

decisions and will not find deficient performance in appellate counsel’s choice of some 

issues over others when the choice was reasonable in light of the facts of the case and the 

precedent available to counsel at the time the decision was made.’” Brown v. State, 880 

N.E.2d 1226, 1230 (Ind. Ct. App. 2008) (quoting Taylor v. State, 717 N.E.2d 90, 94 (Ind.

1999)), trans. denied. We must consider the totality of an attorney’s performance and 

“should be particularly sensitive to the need for separating the wheat from the chaff in 

appellate advocacy.” Reed, 856 N.E.2d at 1195-96.

The Indiana Double Jeopardy Clause provides, “No person shall be put in jeopardy 

twice for the same offense.” Ind. Const. art. I, § 14. We analyze alleged violations of this 

clause pursuant to our Supreme Court’s opinion in Richardson v. State, 717 N.E.2d 32 (Ind.

1999). In Richardson, our Supreme Court held that “two 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.” 717 N.E.2d at 49 (emphasis in original). Ware 

contends that his convictions constituted double jeopardy under the “actual evidence” test.

Under the “actual evidence” test, a defendant must demonstrate a reasonable 

possibility that the evidentiary facts used by the fact-finder to establish the essential 
17

elements of one offense may also have been used to establish all of the essential elements 

of a second challenged offense. Bunch v. State, 937 N.E.2d 839, 845-46 (Ind. Ct. App. 

2010) (citing Richardson, 717 N.E.2d at 53), trans. denied. Double jeopardy is not violated 

when 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. Moore 

v. State, 882 N.E.2d 788, 794 (Ind. Ct. App. 2008) (citing Smith v. State, 872 N.E.2d 169, 

176 (Ind. Ct. App. 2007), trans. denied). 

In the present case, the State charged Ware with Class D felony criminal 

recklessness in Count 3 for shooting a firearm at or in the direction of Latwon Johnson

(“Johnson”) and with Class D felony criminal recklessness in Count 4 for shooting a 

firearm at or in the direction of Jude Sayles (“Sayles”). Ware was also charged with murder 

in Count 1 for knowingly killing Dunson by shooting a firearm at him and with Class C

felony battery for knowingly touching Dyer in a rude, insolent, or angry manner by 

shooting at him with a firearm and hitting him in the leg. A person commits Class D felony 

criminal recklessness if the person “recklessly, knowingly, or intentionally performs an act 

that creates a substantial risk of bodily injury to another person” while armed with a deadly 

weapon. Ind. Code § 35-41-2-2(b), (c). A person commits murder if the person knowingly 

or intentionally kills another human being. Ind. Code § 35-42-1-1(1). A person commits 

Class C felony battery if the person knowingly or intentionally touches another person in 

a rude, insolent, or angry manner and that touching results in serious bodily injury to any 

other person or if it is committed by means of a deadly weapon. Ind. Code § 35-42-2-

1(a)(3). 
18

The facts supporting Ware’s conviction for murder demonstrate that Ware killed 

Dunson by shooting Dunson with a firearm, and the facts supporting Ware’s conviction for 

Class C felony battery demonstrate that Ware caused serious bodily injury to Dyer by 

shooting him with a firearm. The evidence at trial showed that Johnson and Sayles were 

both close to Dunson and Dyer when Ware shot his firearm at them, so Ware’s convictions 

for Class D felony criminal recklessness were supported by the evidence that Ware shot 

his firearm in the direction of all four of the boys, endangering both Johnson and Sayles. 

Because different victims were involved in the murder and the battery and in each count of 

criminal recklessness, different evidence was used to convict Ware of each of the crimes. 

In situations where the defendant harms or threatens harm to distinct victims, double 

jeopardy is not violated by multiple convictions. Bunch, 937 N.E.2d at 847; see also Bald 

v. State, 766 N.E.2d 1170, 1172 n.4 (Ind. 2002) (double jeopardy is not violated where 

convictions arise from situation where separate victims are involved); Rawson v. State, 865 

N.E.2d 1049, 1055 (Ind. Ct. App. 2007) (where convictions arise from situation where 

separate victims are involved, no double jeopardy violation exists), trans. denied. Ware’s 

convictions did not violate double jeopardy, and therefore his appellate counsel was not

ineffective failing to raise a double jeopardy issue on direct appeal. We conclude that Ware 

did not receive ineffective assistance of either his trial or appellate counsel, and the postconviction court did not err in denying his petition for post-conviction relief.

Affirmed.

FRIEDLANDER, J., and BAILEY, J., concur.