Court of Appeals of Indiana | Memorandum Decision 18A02-1711-PC-2589 | April 13, 2018 Page 1 of 14

MEMORANDUM DECISION

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

Stephen T. Owens

Public Defender of Indiana

Jonathan O. Chenoweth

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana 

Michael Gene Worden

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Matthew Dante Bennett,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

April 13, 2018

Court of Appeals Case No.

18A02-1711-PC-2589

Appeal from the Delaware Circuit 

Court.

The Honorable John M. Feick, 

Judge.

Trial Court Cause No.

18C04-1405-PC-1

Sharpnack, Senior Judge

Statement of the Case

[1] Matthew Dante Bennett appeals the post-conviction court’s denial of his 

petition for post-conviction relief. We affirm.
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Issues

[2] Bennett raises two issues, which we restate as:

I. Did the post-conviction court err in rejecting his claim of 

ineffective assistance of trial counsel.

II. Did the post-conviction court err in rejecting his claim of 

ineffective assistance of appellate counsel.

Facts and Procedural History

[3] The facts, as taken from the decision in Bennett’s direct appeal, are as follows:

On August 4, 2011, Doroteo Chavez and Abel Trejo stopped at a 

gas station in Muncie where they encountered a woman named 

Spring Miller. They arranged to meet Spring later that night so 

that Spring could dance for them. Spring subsequently met up 

with her husband Robert Miller and Bennett. Robert and 

Bennett informed Spring that they planned to accompany Spring 

to her meeting with Chavez and Trejo so that they could rob 

them. Spring did not wish to participate in the robbery, but 

because Bennett was armed with a handgun and threatened to 

hurt her children, she agreed to assist the two men.

Spring texted Chavez and Trejo and asked them to come pick her 

up at an apartment. When they arrived, Spring went outside to 

meet them while Robert and Bennett went to the alley behind the 

apartment building. Spring got in a vehicle with Chavez and 

Trejo and directed them to drive a very short distance to an 

address on Celia Avenue where there was a house set back from 

the road. After arriving at the house, Spring led the men out of 

the vehicle and to the porch of the house. It was so dark outside 

that Spring used the light on her cell phone to help see where 

they were going. As they were walking up the steps onto the 

porch, Spring heard sticks breaking “like somebody walking . . . 

coming real fast.” Tr. at 350. Spring then heard a “big woosh” 

and a “big crunch” as Robert struck Trejo in the head with a 

baseball bat. Id. at 350-51. Trejo immediately fell to the ground 
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twitching and gasping for air. Spring then saw Bennett wrestling 

with Chavez on the ground. Spring heard Bennett order Chavez 

to stay on the ground. Robert and Bennett began searching 

Trejo’s and Chavez’s pockets. Trejo testified at trial that the two 

men took his wallet containing more than $400, along with 

identification cards and driver’s licenses.

Spring ran from the scene. A few minutes later, as she was 

walking on Jackson Street, Robert pulled up next to her driving 

the vehicle that Chavez and Trejo had been driving earlier. 

Bennett was in the passenger seat. The men ordered Spring to 

get into the vehicle. Spring complied because Bennett was still 

armed with the handgun. Meanwhile, Chavez and Trejo 

managed to get to a nearby fast food restaurant and contacted 

police to report the robbery. Officer Ron Miller of the Muncie 

Police Department responded to the scene. When he arrived, he 

observed that both Chavez and Trejo appeared to have suffered 

head injuries and their faces were bloody. Trejo was lapsing in 

and out of consciousness and, due to his injuries, was unable to 

communicate with Officer Miller. Officer Miller summoned an 

ambulance, and the two victims were taken to Ball Memorial 

Hospital.

The State charged Bennett with five counts: count I, class B 

felony aggravated battery [of Trejo]; count II, class C felony 

battery [of Chavez] by means of a deadly weapon; count III, class 

B felony armed robbery [of Trejo]; count IV, class B felony 

armed robbery [of Chavez]; and count V, class D felony auto 

theft. . . . The jury found Bennett guilty of class B felony 

aggravated battery [of Trejo], class B felony armed robbery [of 

Trejo], and class D felony auto theft.

Bennett v. State, Cause No. 18A02-1306-CR-515, *2-4 (Ind. Ct. App. Jan. 21, 

2014), trans. denied.

[4] Bennett appealed, and he continued to be represented by his trial counsel. 

Bennett argued: (1) the trial court violated his right to a speedy trial; (2) the 
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evidence was insufficient to sustain his conviction of aggravated battery; (3) his 

convictions for aggravated battery and armed robbery violated Indiana’s

constitutional prohibition of double jeopardy; and (4) the trial court abused its 

discretion in the course of instructing the jury. A panel of this Court affirmed 

the trial court’s judgment.

[5] This case began when Bennett filed a petition for post-conviction relief. The 

post-conviction court held an evidentiary hearing and issued findings of fact, 

conclusions of law, and judgment in favor of the State. This appeal followed.

Discussion and Decision

[6] The petitioner in a post-conviction proceeding bears the burden of establishing 

grounds for relief by a preponderance of the evidence. Campbell v. State, 19 

N.E.3d 271, 273-74 (Ind. 2014). When appealing the denial of post-conviction

relief, the petitioner stands in the position of one appealing from a negative 

judgment. Id. at 274. 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, 269 (Ind. 2014).

[7] The post-conviction court made findings of fact and conclusions of law in 

accordance with Indiana Post-Conviction Rule 1(6). We do not defer to a postconviction court’s legal conclusions, but “‘[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 conviction that a mistake has been made.’” 
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Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013) (quoting Ben-Yisrayl v. State, 

729 N.E.2d 102, 106 (Ind. 2000) (quotation omitted)).

[8] Bennett argues the post-conviction court erred by rejecting his claims of 

ineffective assistance of trial and appellate counsel. The Indiana Supreme 

Court has stated:

To establish a post-conviction claim alleging violation of the 

Sixth Amendment right to effective assistance of counsel, a 

defendant must establish the two components set forth in 

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 

2d 674 (1984). First, a defendant must show that counsel’s 

performance was deficient. This requires a showing that 

counsel’s representation fell below an objective standard of 

reasonableness and that counsel made errors so serious that 

counsel was not functioning as ‘counsel’ guaranteed to the 

defendant by the Sixth Amendment. Second, a defendant must 

show that the deficient performance prejudiced the defense. This 

requires a showing that counsel’s errors were so serious as to 

deprive the defendant of a fair trial, meaning a trial whose result 

is reliable. 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. A reasonable probability is one that is sufficient 

to undermine confidence in the outcome.

Passwater, 989 N.E.2d at 770 (citations and quotations omitted).

[9] The standard of review for claims of ineffective assistance of appellate counsel 

is the same as for trial counsel in that the defendant must show appellate 

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

in prejudice. Hollowell, 19 N.E.3d at 269. “If it is easier to dispose of an 
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ineffectiveness claim on the ground of lack of sufficient prejudice . . . that 

course should be followed.” Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

1. Trial Counsel

[10] Bennett argues his trial counsel rendered ineffective assistance by failing to 

object at the sentencing hearing. Specifically, he claims counsel should have 

argued to the sentencing court that his convictions of robbery and aggravated 

battery violated his statutory and common law protections against double 

jeopardy. Bennett concedes that a claim that his trial counsel should have 

raised a double jeopardy claim under the Indiana Constitution would be barred 

by res judicata. Reply Br. p. 5. The State argues that Bennett’s other double 

jeopardy claims are also barred by res judicata. We disagree and consider the 

merits of Bennett’s statutory and common law claims.1

[11] When a petitioner contends that counsel was ineffective for failing to object, to

show prejudice petitioner must prove that the court would have sustained the 

objection. Passwater, 989 N.E.2d at 770. Absent such a showing, the petitioner 

cannot establish the prejudice component of the Strickland test. Id.

[12] The Indiana General Assembly has enacted a statute pertaining to double 

jeopardy, which provides:

Whenever:

 

1 Bennett is not raising a claim under the Double Jeopardy Clause of the United States Constitution.
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(1) a defendant is charged with an offense and an included 

offense in separate counts; and

(2) the defendant is found guilty of both counts;

judgment and sentence may not be entered against the defendant 

for the included offense.

Ind. Code § 35-38-1-6 (1983).

[13] An “included offense” is defined, in relevant part, as an offense that is 

established by proof of the same material elements or less than all the material 

elements required to establish the commission of the offense charged. Ind. 

Code § 35-31.5-2-168 (2012). If each offense is established by proof of an 

element not contained in the other, then Indiana Code section 35-38-1-6 does 

not preclude conviction and sentence for both offenses. Ingram v. State, 718 

N.E.2d 379, 381 (Ind. 1999).

[14] A defendant commits aggravated battery when he or she (1) knowingly or 

intentionally (2) inflicts injury on a person (3) that creates a substantial risk of 

death. Ind. Code § 35-42-2-1.5 (2014). Count one, the charge of aggravated 

battery of Trejo, tracks the statutory language. A defendant commits armed 

robbery when he or she (1) knowingly or intentionally (2) takes property from 

another person or from the presence of another person (3) by using or 

threatening the use of force or by putting any person in fear (4) while armed 

with a deadly weapon or causing bodily injury to another person. Ind. Code §

35-42-5-1 (2014). Count three, the charge of armed robbery of Trejo, tracks the 

statutory language and specifies that Bennett committed the offense while 

armed with a deadly weapon.
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[15] Bennett argues that his convictions for aggravated battery of Trejo and armed 

robbery of Trejo as charged violate Indiana Code section 35-38-1-6 because he 

claims the same force, Robert hitting Trejo in the head with a baseball bat, was 

used to accomplish both crimes. We disagree. Bennett did not touch or speak 

with Trejo during the attack, and we must conclude he was liable for the crimes 

against Trejo as Robert’s accomplice.2 Robert struck Trejo with the bat, 

committing aggravated battery. Bennett, who had a handgun, assisted Robert 

by wrestling with Trejo’s companion, Chavez, and ordering him to stay down 

while Robert took Trejo’s wallet, committing armed robbery. We agree with 

the post-conviction court that Bennett’s separate use of force against Chavez 

while assisting Robert established separate factual bases for the offenses, and 

there is no violation of the included offense statute. See Smith v. State, 881 

N.E.2d 1040, 1047 (Ind. Ct. App. 2008) (convictions of robbery and 

confinement did not violate Indiana Code section 35-38-1-6; State provided 

evidence of force used to commit confinement that was separate from force 

used to commit robbery).

[16] Next, Bennett argues his convictions for aggravated battery and armed robbery 

violate Indiana’s common-law rules against double jeopardy. Indiana courts 

have “long adhered to a series of rules of statutory construction and common 

law that are often described as double jeopardy, but are not governed” by the 

 

2 The trial court instructed the jury on aiding, inducing, or causing an offense. Trial Tr. Vol. 2, p. 484.
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Indiana Double Jeopardy Clause. Pierce v. State, 761 N.E.2d 826, 830 (Ind. 

2002). Among other principles, Indiana courts prohibit “conviction and 

punishment for a crime which consists of the very same act as an element of 

another crime for which the defendant has been convicted and punished.” 

Richardson v. State, 717 N.E.2d 32, 55 (Ind. 1999) (Sullivan, J., concurring). 

This common law rule is not violated where “the subject behavior or harm is 

either separate from or more extensive than that necessary to constitute the 

element of the first crime.” Id.

[17] Robert’s act of hitting Trejo in the head with the baseball bat established the 

force necessary to commit aggravated battery and convict Bennett as an 

accomplice. Bennett assisted Robert in robbing Trejo by wrestling Chavez to 

the ground and ordering him to stay there while armed with a handgun, thus 

establishing separate factual elements for armed robbery. Bennett argues the 

jury likely considered the same act of violence (hitting Trejo with the bat) as the 

force used in both offenses because the jury did not convict him of battering or 

robbing Chavez. He reasons the jury must have disregarded any force he used 

against Chavez. Speculating as to the jury’s reasoning is difficult, but we note 

Trejo testified at Bennett’s trial while Chavez did not. The jury’s not guilty 

verdicts as to offenses against Chavez could have reasonably been based on 

Chavez’s failure to appear as much as any doubt that Bennett committed the 

acts against Chavez that Spring described at trial. Bennett’s common law 

double jeopardy claim must fail.
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[18] We have determined Bennett cannot prevail on his statutory and common law 

claims. As a result, Bennett was not prejudiced by his trial counsel’s failure to 

object, because counsel is not required to raise an objection that would have 

failed. If trial counsel had objected to Bennett’s sentence on those grounds, the 

outcome would not have been different, and the post-conviction court did not 

err in rejecting Bennett’s claims of ineffective assistance of trial counsel.

2. Appellate Counsel

[19] Bennett argues his appellate counsel rendered ineffective assistance by: (1) 

failing to raise double jeopardy claims under Indiana’s included offense statute 

and common law; and (2) failing to effectively present a claim of double 

jeopardy under the Indiana Constitution. We have determined that Bennett’s 

claims under the Indiana included offense statute and Indiana common law 

must fail. Appellate counsel will not be deemed ineffective for “failing to 

present meritless claims.” Vaughn v. State, 559 N.E.2d 610, 615 (Ind. 1990). 

That leaves Bennett’s claim under the Indiana Double Jeopardy clause.

[20] The State argues Bennett’s Indiana double jeopardy claim is barred by res 

judicata, claiming the Indiana constitutional double jeopardy issue was resolved 

on direct appeal and should not be addressed again. We disagree. In Harris v. 

State, our Supreme Court stated that when a petitioner raises a claim of 

ineffective assistance of appellate counsel for inadequately presenting an issue, 

the underlying issue must be “re-adjudicated” and is not barred by res judicata. 
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861 N.E.2d 1182, 1186 (Ind. 2007). “In short, the Sixth Amendment right to 

counsel trumps the state law res judicata doctrine.” Id.

[21] A claim of ineffective assistance of appellate counsel falls into one of three 

categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure 

to present issues well. Carter v. State, 929 N.E.2d 1276, 1278 (Ind. 2010). 

Claims of inadequate presentation of issues are the most difficult for petitioners 

to advance and for reviewing tribunals to support. Bieghler v. State, 690 N.E.2d 

188, 195 (Ind. 1997). This is so because “these claims essentially require the 

reviewing tribunal to re-view specific issues it has already adjudicated to 

determine whether the new record citations, case references, or arguments 

would have had any marginal effect on their previous decision,” thus 

implicating “concerns of finality, judicial economy, and repose while least 

affecting assurance of a valid conviction.” Id. Further, a “less than top notch 

performance” by appellate counsel does not necessarily prevent Indiana’s 

appellate courts from “appreciating the full measure of an appellant’s claim” 

because we commonly perform separate legal research on cases. Id. An 

ineffectiveness challenge resting on counsel’s inadequate presentation of a claim 

must overcome “the strongest presumption of adequate assistance.” Id. at 196.

[22] Article I, section 14 of the Indiana Constitution provides, “No person shall be 

put in jeopardy twice for the same offense.” It is well established that two 

convictions violate the Indiana Double Jeopardy Clause when, “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 
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essential elements of another challenged offense.” Richardson v. State, 717 

N.E.2d 32, 49 (Ind. 1999) (emphasis in original).

[23] On direct appeal, Bennett’s counsel argued that Bennett’s convictions for armed 

robbery and aggravated battery violated the “actual evidence” component of the 

Richardson standard, claiming Robert’s single act of hitting Trejo with the bat 

established essential elements of both offenses. Bennett’s counsel raised Smith, 

881 N.E.2d 1040. In Smith, this Court sua sponte reversed Smith’s conviction

for Class B felony robbery, concluding that the robbery conviction and Smith’s 

conviction for Class B felony aggravated battery violated Indiana’s Double 

Jeopardy Clause. The Court concluded the “actual evidence” test was violated 

because both offenses required proof of bodily injury, and the only injury the 

State demonstrated was that Smith struck a correctional officer twice, knocking 

teeth loose. Id. at 1048.

[24] In Bennett’s direct appeal, the Court disregarded his discussion of the Smith

case and ruled against him on his Indiana Double Jeopardy Clause claim. 

Bennett now argues his appellate counsel rendered ineffective assistance by 

discussing Smith rather than other cases that he claims more closely match the 

facts of his case. He claims Smith is factually distinguishable because that case 

addressed whether the same injury supported both offenses, whereas in this case 

the issue is whether the same act of violence supported both offenses.

[25] We conclude Bennett’s claim is a distinction without a difference. On direct 

appeal, Bennett’s counsel clearly raised a claim that the same act of violence 
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supported both offenses, and his citation to Smith provided a sufficient 

illustration of the “actual evidence” test for the Court to have found in 

Bennett’s favor if the facts had merited that result. The Court instead 

determined there were separate acts that supported each conviction, specifically 

Robert striking Trejo with a bat (battery) and Bennett wrestling with Chavez 

and ordering him to stay down while armed with a handgun, allowing Robert 

to take Trejo’s wallet (robbery).

[26] Further, the cases Bennett claims his direct appeal counsel should have raised 

are factually distinct from his case. In Burnett v. State, 736 N.E.2d 259, 262-63 

(Ind. 2000), overruled in part on other grounds by Ludy v. State, 784 N.E.2d 459, 

462 (Ind. 2003), the Indiana Supreme Court determined convictions for Class A 

felony and Class B felony aggravated battery violated the Indiana Double 

Jeopardy Clause because there was a reasonable possibility the same act (the 

stabbing of the victim in the neck) supported elements of both offenses. Indeed, 

the State failed to present evidence of any other violent acts by defendant. In 

Richardson, 717 N.E.2d at 54, the Indiana Supreme Court determined 

convictions for Class C felony robbery and Class A misdemeanor battery 

violated the Indiana Double Jeopardy Clause because there was a reasonable 

possibility the same act (the beating of the victim while taking his money) 

supported elements of both offenses. Finally, in Troutner v. State, 951 N.E.2d 

603, 611 (Ind. Ct. App. 2011), trans. denied, the Court determined Troutner’s 

convictions for Class B felony robbery and Class A misdemeanor battery

violated the Indiana Double Jeopardy Clause because there was a reasonable 
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possibility the same act (the beating of the victim while taking his money) 

supported elements of both offenses. In contrast to those three cases, in 

Bennett’s case the State presented evidence of two acts of violence that

separately supported the offenses. We cannot conclude that citing to different 

cases would have led to a different result in Bennett’s direct appeal. In the 

absence of prejudice, Bennett’s claim of ineffective assistance of appellate 

counsel must fail, and the post-conviction court did not err in rejecting it.

Conclusion

[27] For the reasons stated above, we affirm the judgment of the trial court.

[28] Judgment affirmed.

Vaidik, C.J., and May, J., concur.