Court of Appeals of Indiana | Memorandum Decision 16A01-1703-PC-600 | October 2, 2017 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.

APPELLANT PRO SE

Brian E. Graves

Carlisle, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Justin F. Roebel

Supervising Deputy Attorney 

General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Brian E. Graves,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

October 2, 2017

Court of Appeals Case No.

16A01-1703-PC-600

Appeal from the Decatur Circuit 

Court

The Honorable Timothy B. Day, 

Judge

Trial Court Cause No.

16C01-1303-PC-182

Bailey, Judge.
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Case Summary

[1] Brian E. Graves (“Graves”) appeals the partial denial of his petition for postconviction relief, challenging his conviction for Escape, as a Class B felony.1

 

We affirm.

Issue

[2] Graves articulates issues concerning joinder of offenses, due process, speedy 

trial rights, and assistance of counsel. We address the issue that is not waived, 

res judicata, or procedurally defaulted,2that is: whether Graves was denied the 

effective assistance of trial and appellate counsel due to failure to challenge his 

prosecution in Decatur County pursuant to Indiana’s successive prosecution 

statute.3

Facts and Procedural History

 

1

Ind. Code § 35-44-3-5(a), recodified at Ind. Code § 35-44.1-3-4. Graves’s adjudication as a habitual offender 

was vacated by the post-conviction court. 

2

Post-conviction proceedings do not afford the petitioner a “super appeal”; rather, subsequent collateral 

challenges must be based on grounds enumerated in Post-Conviction Rule 1. Williams v. State, 808 N.E.2d 

652, 659 (Ind. 2004). If an issue was known and available but not raised on direct appeal, it is procedurally 

defaulted as a basis for relief in subsequent proceedings. Id. If an issue was raised and decided adversely, it is 

res judicata. Id. If not raised on direct appeal, the issue of ineffectiveness of counsel is properly presented in 

a post-conviction proceeding but, as a general rule, most free-standing claims of error are not available in a 

post-conviction proceeding because of the doctrines of waiver and res judicata. Id. 

3

I.C. § 35-34-1-4.
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[3] Events occurring on February 7, 2010 gave rise to Graves’s convictions of 

crimes in two Indiana counties. Graves was brought to trial in Decatur County 

after he was convicted in Shelby County of Resisting Law Enforcement and 

had served, or substantially served, the related sentence. The facts underlying 

Graves’s convictions were recited by a panel of this Court on direct appeal as 

follows:

[O]n the cold and snowy evening of February 7, 2010 Indiana 

State Police Trooper Christopher Howell began to patrol 

Interstate 74 looking for drivers who might be stranded due to the 

inclement weather. The trooper observed Graves’s truck parked 

in the emergency pull-off lane on the interstate. Graves was 

standing at the front of the vehicle. When Trooper Howell 

stopped to investigate, he asked Graves what he was doing. 

Graves replied that he was scraping ice from his windshield. 

Trooper Howell, who observed that there was nothing in 

Graves’s hands, noted that Graves’s words were slurred and he 

was unsteady on his feet. At this point, Howell was standing in 

front of his police cruiser, which in turn was stopped behind 

Graves’s truck. He asked Graves to come to him. Graves 

initially refused and told the trooper he was going to “take off.” 

Transcript at 34. In response, Trooper Howell issued a “loud 

command” to Graves to walk to the trooper. Id. This time, 

Graves complied. The trooper patted down Graves and asked 

where he had been and where he was going. When Graves 

responded, Trooper Howell detected the odor of alcohol on his 

breath. He asked if Graves had been drinking and Graves said he 

had not. Trooper Howell asked for Graves’s identification and 

registration and was informed that they were in the truck. He 

escorted Graves to the vehicle and watched as Graves retrieved 

his wallet and began looking through its contents. He noted that 

Graves had an Indiana identification card, which signified to the 

trooper either that Graves did not have a driver’s license, or that 

his license was suspended. He asked Graves about the status of 
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his license and Graves responded that it had been suspended for 

nonpayment of parking tickets. Graves was not able to produce 

any of the other requested documentation. At that point, because 

of the weather and conditions, Trooper Howell asked Graves to 

sit in the front passenger seat of his police cruiser while he 

verified Graves’s information.

After the two were seated inside the cruiser, Trooper Howell 

began running Graves’s information on a laptop computer 

located between the two of them such that both Howell and 

Graves could see the information displayed on the screen. When 

the laptop began to emit audible alert tones and display Graves’s 

information, Graves was looking at the screen and reading the 

information along with Trooper Howell. Among the information 

on the screen was an indication that Graves was wanted on four 

open warrants. After a few seconds, Graves “turned his head 

and said sorry, I gotta go.” Id. at 39. He then opened the door 

and, according to Howell, “out he went.” Id. Trooper Howell at 

first just sat there, “dumbfounded.” Id. at 40. He saw Graves 

start toward his truck, and then the trooper exited his car and ran 

to intercept Graves. During the ensuing scuffle, the trooper 

repeatedly commanded Graves to “stop resisting” and told him, 

“You need to stop.” Id. at 74. He grabbed Graves while they 

were between the vehicles, but Graves slipped from his grasp and 

continued to the front passenger side of his truck. Trooper 

Howell decided to run around the driver’s side of the truck and 

intercept Graves from that direction. He caught Graves near the 

front of the vehicle. Graves pushed Howell, who fell backward 

and hit his head and was stunned for a moment. By the time 

Howell recovered, Graves had climbed into the driver’s seat of 

the truck, but the door was still open when Howell got to him 

and began pulling on Graves, attempting to extricate him from 

the truck. He continued pulling Graves by the coat and ordering 

him to get out of the truck and to quit resisting. At some point, 

Graves managed to get his truck into gear, stepped on the gas, 

and began driving away. When he did, the forward motion 
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caused the door to shut on Trooper Howell’s left hand, injuring 

one of his fingers badly enough that it later required stitches. 

Trooper Howell hung on “for a little bit” but soon let go. Id. at 

42. He called the State Police Post and gave them Graves’s 

description and a description of his truck. That description was 

relayed to law enforcement officials in the area.

Approximately ten minutes later, Deputy Joseph Mohr of the 

Shelby County Sheriff’s Department observed Graves driving on 

I-74. After ascertaining that the truck matched the description of 

the subject vehicle, Deputy Mohr initiated a traffic stop. Graves 

sped away and threw several items out of the window before he 

eventually stopped after a chase. He was ultimately convicted of 

escape as a class B felony, resisting law enforcement as a class D 

felony, and found to be a habitual offender.

Graves v. State, No. 16A01-1205-CR-227, slip op. at 1-2 (Ind. Ct. App. Nov. 8, 

2012), trans. denied.

4

[4] Graves was sentenced to twenty years of imprisonment, enhanced by thirty 

years due to his status as a habitual offender. On direct appeal, Graves 

challenged the sufficiency of the evidence supporting his conviction for Escape. 

This Court affirmed the conviction, and the Indiana Supreme Court denied 

transfer. Graves v. State, 981 N.E.2d 58 (Ind. 2013).

[5] On March 24, 2013, Graves filed a petition for post-conviction relief, which was 

subsequently amended to include claims of free-standing error, allegations as to 

 

4 The trial court vacated Graves’s conviction for Resisting Law Enforcement.
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ineffectiveness of counsel, and Graves’s contention that he had not been 

afforded proper advisements before admitting to his status as a habitual 

offender. The State responded, admitting that Graves had not received 

advisements to which he was due. After a hearing conducted on February 22, 

2016 and January 12, 2017, the post-conviction court entered an order vacating 

the habitual offender enhancement and otherwise denying Graves postconviction relief. This appeal ensued.

Discussion and Decision

Post-Conviction Standard of Review

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

grounds for relief by a preponderance of the evidence. Humphrey v. State, 73 

N.E.3d 677, 681 (Ind. 2017). On appeal, the petitioner then stands in the 

position of one appealing a negative judgment; that is, he or she must show that 

the evidence leads unerringly and unmistakably to a conclusion opposite that 

reached by the post-conviction court. Id. We do not defer to the 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. Id. at 682.

Ineffectiveness Standard of Review

[7] Here, Graves alleges that his trial and appellate counsel were ineffective for 

failing to argue that his prosecution for Escape was an improper successive 
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prosecution. When evaluating an ineffective assistance of counsel claim, we 

apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668 

(1984). See Humphrey, 73 N.E.3d at 682. To satisfy the first prong, “the 

defendant must show deficient performance: representation that fell below an 

objective standard of reasonableness, committing errors so serious that the 

defendant did not have ‘counsel’ guaranteed by the Sixth Amendment.” 

McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing Strickland, 466 U.S. at 

687-88). To satisfy the second prong, “the defendant must show prejudice: a 

reasonable probability (i.e. a probability sufficient to undermine confidence in 

the outcome) that, but for counsel’s errors, the result of the proceeding would 

have been different.” Id. (citing Strickland, 466 U.S. at 694).

Trial Counsel

[8] At the outset, we observe that Graves’s trial counsel filed a pre-trial motion 

captioned “Motion to Dismiss (Barred by Prior Prosecution/Double 

Jeopardy).” (P.C-R. App. at 11.) The motion drafted by trial counsel included 

arguments that Graves’s prosecution in Decatur County violated the double 

jeopardy protections of the United States and Indiana Constitutions. It was 

further alleged that the prosecution “is barred by I.C. 35-41-4-3” and that the 

acts were part of “one continuous event.” (P.C-R. App. at 11.) A hearing was 

conducted on the motion to dismiss and the trial court denied Graves the relief 

he sought. Graves may not obtain post-conviction relief on a claim that trial 

counsel was ineffective due to a purported omission of a successive prosecution 
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claim when counsel asserted and argued the merits of such a claim but simply 

did not prevail.

[9] Graves also argues that “charges [in Shelby County and Decatur County] 

should have been filed at the same time” and “trial counsel erred in not 

addressing this issue.” Appellant’s Brief at 18. It appears that Graves believes 

that it would have enhanced his position in plea bargaining if all charges were 

subject to disposition at the same time. 

[10] Criminal actions must be tried in the county where the offense was committed, 

unless otherwise permitted by law. Navaretta v. State, 726 N.E.2d 787, 789 (Ind. 

2000). See also Ind. Code § 35-32-2-1 (governing situations where the county of 

commission cannot be ascertained). Under our statutory scheme, one county 

may not dispose of charges or try a defendant for criminal offenses known to 

have been committed in another county. See id. To the extent that Graves 

suggests that individual county prosecutors have an obligation to coordinate 

filing of charges or conduct trials simultaneously with another county 

prosecutor, he offers no relevant authority for this proposition.

Appellate Counsel 

[11] Although trial counsel preserved the issue for appeal, appellate counsel did not 

present an issue regarding successive prosecution. The standard of review for a 

claim of ineffectiveness of appellate counsel is the same as for trial counsel, in 

that the petitioner must show appellate counsel was deficient in performance 

and that the deficiency resulted in prejudice. Ritchie v. State, 875 N.E.2d 706, 
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723 (Ind. 2007). Such claims generally fall into three basic categories: (1) 

denial of access to an appeal, (2) waiver of issues, and (3) failure to present 

issues well. Id. Here, the second category is implicated.

[12] In such cases, ineffectiveness is rarely found because “the decision of what 

issues to raise is one of the most important strategic decisions to be made by 

appellate counsel.” Id. at 724 (citing Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 

1997)). Accordingly, our review is particularly deferential to counsel’s strategic 

decision to exclude certain issues in favor of others. Id. First, we look to see 

whether the unraised issues were significant and obvious upon the face of the 

record. Id. If so, then we compare these obvious issues to those raised by 

appellate counsel, finding deficient performance only when the unraised issues 

are clearly stronger than the issues presented. Id. If deficient performance is 

found, we next turn to the prejudice prong to determine whether the omitted 

issues would have been clearly more likely to result in reversal or an order for a 

new trial. Id.

[13] Specifically, Graves contends that his appellate counsel should have argued that 

his prosecution in Decatur County was a prohibited successive prosecution 

because the Escape offense was part of the “same scheme or plan” as the Shelby 

County Resisting Law Enforcement offense. Appellant’s Brief at 18-19. We 

turn to consider whether this was a significant and obvious issue.

[14] Pursuant to Indiana Code Section 35-41-4-4(a), a prosecution is barred if all the 

following exist:
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(1) There was a former prosecution of the defendant for a 

different offense or for the same offense based on different 

facts.

(2) The former prosecution resulted in an acquittal or a 

conviction of the defendant or in an improper termination 

under section 3 of this chapter.

(3) The instant prosecution is for an offense with which the 

defendant should have been charged in the former 

prosecution.

[15] The words “should have been charged” of subsection (a)(3) are to be read in 

conjunction with Indiana’s joinder statute. Williams v. State, 762 N.E.2d 1216, 

1219 (Ind. 2002). The joinder statute provides in relevant part:

A defendant who has been tried for one (1) offense may 

thereafter move to dismiss an indictment or information for an 

offense which could have been joined for trial with the prior 

offenses under section 9 of this chapter. The motion to dismiss 

shall be made prior to the second trial, and shall be granted if the 

prosecution is barred by reason of the former prosecution.

Ind. Code § 35-34-1-10(c).

[16] In turn, section 9 provides in relevant part:

Two (2) or more offenses may be joined in the same indictment 

or information, with each offense stated in a separate count when 

the offenses ... (2) are based on the same conduct or on a series 

of acts connected together or constituting parts of a single scheme 

or plan.
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Where two or more charges are based on the same conduct or on a series of acts 

constituting parts of a single scheme or plan, they should be joined for trial and 

when the State brings multiple prosecutions for a series of acts constituting parts 

of a single criminal transaction, it does so at its own peril. Williams, 762 N.E.2d 

at 1219. To determine whether contemporaneous crimes are part of a single 

scheme or plan, we examine “whether they are connected by a distinctive 

nature, have a common modus operandi, and a common motive.” Id. at 1220 

(quoting Henderson v. State, 647 N.E.2d 7, 10 (Ind. Ct. App. 1995)).

[17] In Williams, defendant Williams faced charges in two different Marion County 

courts based upon an incident where Williams sold cocaine to an undercover 

police officer, the officer allowed Williams to leave but immediately radioed to

arrange his arrest by uniformed officers, and Williams fled to a nearby vacant 

apartment where he was apprehended and found to have rock cocaine in his 

sock. 762 N.E.2d at 1217. Williams first pled guilty to the charges stemming 

from breaking into the apartment and possessing cocaine in his sock; then he 

was charged with Dealing in Cocaine, related to the undercover buy. The 

Indiana Supreme Court concluded that the charge of Dealing in Cocaine was 

barred by Indiana’s successive prosecution statute. Id. at 1219. The Court 

observed that the undercover officer had radioed Williams’ description and sent 

another officer in pursuit and that Williams had testified he took only a few 

steps before police cars arrived and he ran into an unoccupied apartment with

officers in pursuit. Id. at 1220. The Court held: 
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These facts show that the Court 9 and Court 20 charges were 

based on a series of acts so connected that they constituted parts 

of a single scheme or plan. Therefore, they should have been 

charged in a single prosecution.

Id.

[18] In contrast, a panel of this Court concluded that an appellant who had fled from 

multiple officers in multiple counties was not entitled to have a charge of 

Resisting Law Enforcement dismissed under either Double Jeopardy principles 

or the successive prosecution statute. Johnson v. State, 774 N.E.2d 1012 (Ind. 

Ct. App. 2002). Lapel Police Officer Leeann Byrne tried to stop Johnson for 

erratic driving but, after an initial stop, Johnson drove off into adjacent 

Hamilton County. See id. at 1013. Officer Byrne stopped her pursuit due to 

foggy conditions but advised dispatch of the fleeing vehicle. Within five to ten 

minutes after the radio dispatch, Officer Aaron Von Housman of the 

Noblesville Police Department attempted to stop Johnson. Id. Although 

Johnson continued driving, he eventually stopped and was arrested a few hours 

later. 

[19] Johnson was convicted in Hamilton County of Operating a Vehicle While 

Intoxicated and Resisting Law Enforcement. He was also charged in Madison 

County with Driving While Suspended and Resisting Law Enforcement. 

Johnson’s motion to dismiss was denied, and he appealed, raising issues of 

Double Jeopardy and successive prosecution. See id. at 1014. The Johnson

Court first concluded that Johnson was not subjected to double jeopardy by 
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prosecution of the Resisting Law Enforcement in Madison County because 

“Johnson’s actions in resisting Officer Byrne and Officer Von Housman were 

sufficiently separated by time and distance as to constitute two distinct, separate 

offenses.” Id. at 1015. The Court then found that there had been no statutory 

violation because Johnson’s crimes had been committed in multiple counties 

and could not have been charged together. Thus, the requirement that “the 

instant prosecution is for an offense with which the defendant should have been 

charged in the former prosecution,” I.C. § 35-41-4-4(a)(3), was not satisfied. 

Id.5

[20] These cases had been decided when Graves’s appellate counsel selected which 

issue would be presented on direct appeal. The facts of record indicate that 

Graves fled from multiple officers in multiple jurisdictions. He did not merely 

take a few steps after one officer declined pursuit before being arrested by other 

officers, as was the case in Williams. Rather, the facts of the instant case 

substantially mirror those in Johnson. We conclude that appellate counsel did 

not omit a significant and obvious issue when declining to argue that Graves 

was subjected to a prohibited successive prosecution. 

 

5

Subsequently, in Sanders v. State, 914 N.E.2d 792 (Ind. Ct. App. 2009), an appellant who had fled from 

multiple officers in a lengthy chase, and had been convicted of two counts of Resisting Law Enforcement, 

attempted to distinguish Johnson. Sanders did not specifically claim that the successive prosecution statute 

had been violated. However, he contended that he had twice been convicted for one continuous offense, 

arguing he had engaged in “one continuous act of flight from police officers” and “there was a gap of only 

minutes instead of the two to three hour gap in Johnson.” Sanders, 914 N.E.2d at 794-95. The Sanders Court 

concluded “in the present case, as in Johnson, there were two distinct pursuits.” Id. at 795. 
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Conclusion

[21] Graves has not established that he was denied the effective assistance of trial or 

appellate counsel. The post-conviction court properly denied Graves’s petition 

for post-conviction relief, in part.

[22] Affirmed.

Baker, J., and Altice, J., concur.