Court of Appeals of Indiana | Opinion 79A05-1711-PC-2505 | May 31, 2018 Page 1 of 9

ATTORNEY FOR APPELLANT

Stephen T. Owens

Public Defender of Indiana

J. Michael Sauer

Deputy Public Defender

Indianapolis, Indiana 

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ellen H. Meilaender

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Matthew Johnson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

May 31, 2018

Court of Appeals Case No.

79A05-1711-PC-2505

Appeal from the Tippecanoe 

Superior Court

The Honorable Steven P. Meyer, 

Judge

Trial Court Cause No.

79D02-1407-PC-5

May, Judge.

[1] Matthew Johnson appeals the denial of his petition for post-conviction relief. 

He argues the post-conviction court erred when it rejected his allegation that his 

appellate counsel was ineffective for failing to argue the application of the 
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Proportionality Clause to Johnson’s conviction of Class B felony aggravated 

battery. We affirm.

Facts and Procedural History

[2] On July 20, 2011, the trial court found Johnson guilty of Class B felony 

aggravated battery,1 Class C felony battery,2 Class B felony possession of 

methamphetamine,3 Class C felony possession of methamphetamine,

4 and

Class C felony possession of chemical reagents or precursors with intent to 

manufacture controlled substances.

5

 The trial court also found Johnson was a 

habitual substance offender.6 On September 30, 2011, the trial court sentenced 

Johnson to fifteen years for Class B felony aggravated battery to be served 

consecutive to fifteen years for Class B felony possession of methamphetamine, 

which was enhanced by five years by virtue of Johnson’s habitual substance 

offender adjudication, for an aggregate sentence of thirty-five years 

incarcerated.7

 

 

1 Ind. Code § 35-42-2-1.5 (1997).

2 Ind. Code § 35-42-2-1(a)(3) (2009).

3 Ind. Code § 35-48-4-6.1 (b)(2) (2006).

4 Ind. Code § 35-48-4-6.1(b)(1) (2006).

5 Ind. Code § 35-48-4-14.5(e) (2006).

6 Ind. Code § 35-50-2-10(b) (2006).

7 The trial court did not enter sentences for the Class C felonies due to double jeopardy concerns.
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[3] On appeal, Johnson’s appellate counsel raised four issues: 

(1) whether the court abused its discretion by denying his motion 

to sever the drug-related charges; (2) whether the court abused its 

discretion by refusing to add language to the self-defense 

instruction; (3) whether the court abused its discretion by refusing 

to instruct the jury regarding defenses to the drug charges; and (4) 

whether the sentence was inappropriate.

(App. Vol. II at 127.) We affirmed Johnson’s convictions and sentence. 

Johnson v. State, Cause No. 79A02-1110-CR-991 (Ind. Ct. App. Sept. 21, 2012).

[4] On July 16, 2014, Johnson filed a pro se petition for post-conviction relief. On 

December 15, 2016, Johnson, with the aid of counsel, filed an amended petition 

for post-conviction relief. Johnson argued his appellate counsel was ineffective 

for failing to argue on appeal that Johnson’s conviction of Class B felony 

aggravated battery violated the Proportionality Clause. The post-conviction 

court held an evidentiary hearing on the petition on August 2, 2017. On 

October 27, 2017, the post-conviction court denied Johnson’s petition.

Discussion and Decision

[5] A post-conviction petition is not a substitute for an appeal, nor does it afford a 

petitioner a “super appeal.” Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006). 

Post-conviction proceedings afford petitioners a limited opportunity to raise 

issues that were unavailable or unknown at trial and on direct appeal. Davidson 

v. State, 763 N.E.2d 441, 443 (Ind. 2002), reh’g denied, cert. denied, 537 U.S. 1122 

(2003). As post-conviction proceedings are civil in nature, the petitioner must 
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prove his grounds for relief by a preponderance of the evidence. Id. A party 

appealing a post-conviction judgment must establish that the evidence is 

without conflict and, as a whole, unmistakably and unerringly points to a 

conclusion contrary to that reached by the post-conviction court. Id. Where, as 

here, the post-conviction court makes findings of fact and conclusions of law in 

accordance with Indiana Post-Conviction Rule 1(6), we do not defer to the 

court’s legal conclusions, but “the 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.” Ben-Yisrayl v. State, 729 N.E.2d 102, 

106 (Ind. 2000) (internal quotation and citation omitted), reh’g denied, cert. 

denied, 534 U.S. 830 (2001).

[6] We review claims of ineffective assistance of appellate counsel using the same 

standard applicable to claims of trial counsel ineffectiveness. Fisher v. State, 810 

N.E.2d 674, 676-7 (Ind. 2004). The defendant must show that appellate 

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

prejudice. Id. at 677. A claim of ineffective appellate assistance generally falls 

into one of three categories: (1) denial of access to an appeal; (2) waiver of 

issues; or (3) failure to present issues well. Id. We employ a two-part test to 

evaluate “waiver of issue” claims: (1) whether the unraised issues are significant 

and obvious from the face of the record, and (2) whether the unraised issues are 

“clearly stronger” than the raised issues. Id.

[7] Because counsel has considerable discretion in choosing strategy and tactics, we 

presume counsel’s assistance was adequate and all significant decisions were 
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made in the exercise of reasonable professional judgment. State v. Miller, 771

N.E.2d 1284, 1288 (Ind. Ct. App. 2002), reh’g denied, trans. denied. One of the 

most important strategic decisions is deciding what issues to raise on appeal. 

Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1998), reh’g denied, cert. denied, 525 

U.S. 1021 (1998). Appellate counsel is not ineffective for declining to present a 

claim that had no merit. Stowers v. State, 657 N.E.2d 194, 200 (Ind. Ct. App. 

1995), trans. denied. We consider the reasonableness of appellate counsel’s 

strategic decisions based upon precedent available at the time of the direct 

appeal. Williamson v. State, 798 N.E.2d 450, 454 (Ind. Ct. App. 2003), reh’g 

denied, trans. denied.

[8] In his post-conviction relief petition, Johnson argued his appellate counsel was 

ineffective because appellate counsel did not present on direct appeal the 

argument that the Proportionality Clause of the Indiana Constitution prohibited 

sentencing Johnson for Class B felony aggravated battery because Class B 

felony aggravated battery and Class D felony criminal recklessness8

encompassed the same elements. The Proportionality Clause of the Indiana 

Constitution states: “All penalties shall be proportioned to the nature of the 

offense.” Ind. Const. Article 1, Section 16. A sentence violates the 

Proportionality Clause when “offenses with identical elements [are] given 

 

8 Ind. Code § 35-42-2-2(d) (2006).
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different sentences.” Poling v. State, 853 N.E.2d 1270, 1276-7 (Ind. Ct. App. 

2006), reh’g denied.

[9] Before the post-conviction court, Johnson argued his appellate counsel should 

have presented a Proportionality Clause argument based on Johnson’s 

perception that there existed a “split of authority in the Court of Appeals on the 

Proportionality Clause[.]” (Br. of Appellant at 11.) Johnson contended a split 

was created our court’s holdings in Poling9 and Matthews v. State, 944 N.E.2d 29 

(Ind. Ct. App. 2011), reh’g denied, and this alleged split made the Proportionality 

Clause argument stronger than the arguments appellate counsel presented on 

appeal. 

[10] During the post-conviction evidentiary hearing, appellate counsel argued he did 

not present a Proportionality Clause argument as part of Johnson’s direct 

appeal based on our holding in Matthews, which stated, in relevant part, that a 

conviction of Class B felony aggravated battery does not violate the

Proportionality Clause because Class B felony aggravated battery and Class D 

criminal recklessness do not have the same elements. 944 N.E.2d at 33. The 

post-conviction court found:

The Matthews decision was issued 14 months before appellate 

counsel filed his brief. Matthews was grounded in the 2008 Mann

 

9 Poling held the elements of Class C felony child neglect and Class D felony child neglect were identical and,

thus, Poling’s conviction and sentence for Class C felony child neglect violated the Proportionality Clause. 

Poling, 853 N.E.2d at 1277. By contrast, the elements of Class B felony aggravated battery and Class D 

felony criminal recklessness are not identical, as held in Matthews. Matthews, 944 N.E.2d at 33. 
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decision. These cases were existing precedent and failed to 

follow the Poling decision upon which Johnson relies. The 

Matthews case is directly on point in this case and was existing 

case law at the time of Johnson’s appeal. Thus, Johnson cannot 

demonstrate that the issue his appellate counsel failed to raise 

would have been clearly more likely to result in reversal or order 

for new sentencing.

(App. Vol. II at 133-4.)

[11] In Matthews, our court affirmed the post-conviction court’s denial of postconviction relief based on an argument similar to that raised here by Johnson. 

Matthews asserted his counsel, who represented him at the trial and appellate 

levels, was ineffective because he did not argue the Proportionality Clause as 

related to Matthews’ conviction and sentence for Class B felony aggravated 

battery and Class C felony battery. Matthews, 944 N.E.2d at 33. Like Johnson, 

Matthews argued the elements for Class B felony aggravated battery were 

identical to the elements for Class D felony criminal recklessness, and thus his 

counsel was ineffective for failing to argue the Proportionality Clause because 

his conviction of and sentence for Class B felony aggravated battery violated the 

clause. Our court concluded 

the mental state required for Class D felony criminal recklessness 

is different from the mental state required for the other two 

crimes [Class B felony aggravated battery and Class C felony 

battery]. . . . Because the three crimes do not have identical 

elements, the proportionality clause of our Constitution is not 

offended if our legislature assigns different sentences to them.
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Id. Therefore, we held Matthews had not demonstrated he was prejudiced by 

any alleged error his counsel made in not arguing the Proportionality Clause.

[12] The same is true here. When appellate counsel filed Johnson’s direct appeal, 

Matthews had recently been handed down and was directly on point, as its 

holding addressed the same issue Johnson now argues should have been 

presented: whether the elements of Class B felony aggravated battery and Class 

D felony criminal recklessness were identical, making their disparate sentences

violate the Proportionality Clause. As appellate counsel relied upon the 

precedent available and directly on point at the time of the direct appeal, 

Johnson has not demonstrated appellate counsel was ineffective for failing to 

argue for the application of the Proportionality Clause. See Bieghler, 690 N.E.2d 

at 194 (courts “should not find deficient performance when counsel’s choice of 

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

precedent available to counsel when that choice was made”). Therefore, the 

trial court did not err when it denied Johnson’s petition for post-conviction 

relief. See Ben-Yisrayl, 729 N.E.2d at 106 (appellate court will reverse postconviction court’s decision only upon demonstration of clear error).

Conclusion

[13] Johnson has not demonstrated his appellate counsel was ineffective for failing 

to present a Proportionality Clause argument because the precedent existing at 

the time undermined the validity of Johnson’s proposed argument. 

Accordingly, we affirm.
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[14] Affirmed.

Riley, J., and Mathias, J., concur.