FOR PUBLICATION

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS GREGORY F. ZOELLER

Public Defender of Indiana Attorney General of Indiana

J. MICHAEL SAUER MICHAEL GENE WORDEN

Deputy Public Defender Deputy Attorney General

Indianapolis, Indiana Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

GARY A. GALLIEN, )

)

Appellant-Petitioner, )

)

vs. ) No. 22A01-1402-PC-50

)

STATE OF INDIANA, )

)

Appellee-Respondent. )

APPEAL FROM THE FLOYD SUPERIOR COURT

The Honorable Susan L. Orth, Judge

Cause No.22D01-1010-PC-18

October 21, 2014

OPINION – FOR PUBLICATION

BARNES, Judge
2

Case Summary

Gary Gallien appeals the post-conviction court’s denial of his petition for postconviction relief. We reverse and remand.

Issue

Gallien raises one issue, which we restate as whether he was denied the effective 

assistance of appellate counsel.

Facts

The facts, as stated in Gallien’s direct appeal, follow:

Early in the morning on April 15, 2007, Gallien and two 

cohorts drove a stolen vehicle to a Goodwill store in Floyds 

Knobs, broke into the store, and stole money and a moving 

dolly. The trio then drove to a tavern in Galena, broke in, and 

stole an automated teller machine, a change machine, and 

additional money. Gallien fled when Floyd County Police 

Officer Gene Perrot arrived, but was quickly apprehended.

Gallien v. State, No. 22A01-0712-CR-565, slip op. at 2 (Ind. Ct. App. June 12, 2008). 

The State charged Gallien with two counts of Class C felony burglary, two counts of 

Class D felony theft, Class D felony receiving stolen property, and Class A misdemeanor 

resisting law enforcement. The State also alleged that he was an habitual offender. The 

State dismissed the resisting law enforcement charge, and a jury found Gallien guilty of 

the remaining charges. At the September 2007 sentencing hearing, Gallien’s counsel 

argued that the burglaries were a single episode of criminal conduct under Indiana Code 

Section 35-50-1-2(c) and that the consecutive sentencing limitations applied. The trial 

court rejected that argument and sentenced Gallien to eight years on each of the burglary 

convictions to be served consecutively. The trial court also imposed a concurrent 
3

sentence of three years on the receiving stolen property conviction and a twelve-year 

enhancement for Gallien’s habitual offender status. The trial court did not impose a 

sentence on the theft convictions due to double jeopardy concerns.

In the 2008 direct appeal, Gallien’s appellate counsel raised one issue, whether the 

sentence was inappropriate under Indiana Appellate Rule 7(B). We held that the sentence 

was not inappropriate, but we remanded for the trial court to amend the sentencing order 

to make the sentence consecutive to any sentence remaining in a case for which he was 

on probation. Gallien, No. 22A01-0712-CR-565, slip op. at 3-4. 

 Gallien filed a petition for post-conviction relief, which he later amended. 

Gallien argued that he was denied the effective assistance of appellate counsel because 

appellate counsel should have raised the consecutive sentencing limitation of Indiana 

Code Section 35-50-1-2(c) on direct appeal. At the hearing, Gallien’s appellate counsel 

testified that if he “had to do it again,” he “would want to raise” the consecutive 

sentencing issue on direct appeal. PCR Hrg. Tr. p. 8. After the hearing, the postconviction court entered findings of fact and conclusions of law denying Gallien’s 

petition. The post-conviction court concluded:

5. In the present case, the Goodwill and Sammy-O’s 

burglaries are not closely connected in time, place and 

circumstances. A complete account of one charge can 

be described without referring to the details of the 

other charge.

6. The Goodwill and Sammy-O’s burglaries were 

separated by approximately fourteen (14) to fifteen 

(15) minutes and two (2) to two and a half (2 1/2) 

miles. A complete account of the Goodwill burglary 

can be described without referring to the details of the 
4

Sammy-O’s burglary. Gallien broke in and entered 

Goodwill stealing Seventy-One Dollars ($71.00) and a 

hand cart. Gallien pried the door open at Goodwill to 

enter the store. Gallien rammed the stolen vehicle 

through the front entrance of Sammy-O’s where he 

stole an ATM and cash. The only remote detail that 

would relate the two burglaries is that the handcart 

stolen from Goodwill was used in the Sammy-O’s 

burglary to transport stolen items. The handcart being 

stolen at one place and used at the other does not make 

this an episode of criminal conduct.

7. Gallien had sufficient time between the two burglaries 

to stop and reflect on his actions. He could have 

stopped after the first burglary, but he chose to 

continue and burglarize Sammy-O’s. 

Appellant’s App. pp. 62-63. The post-conviction court concluded that Gallien had not 

“established a reasonable probability that he would prevail under any of the single 

episode of criminal conduct articulated tests of the appellate courts.” Id. at 64. The postconviction court concluded that the outcome of the appeal would have been the same 

even if Gallien’s appellate counsel had raised the consecutive sentencing issue. The postconviction court noted that “[t]hese are separate and distinct acts to burglarize two (2) 

separate businesses with two (2) separate victims.” Id. Therefore, it concluded that 

application of Indiana Code Section 35-50-2-1(c) was not appropriate. Gallien now 

appeals.

Analysis

Gallien argues that the post-conviction court’s denial of his petition is clearly 

erroneous. A court that hears a post-conviction claim must make findings of fact and 

conclusions of law on all issues presented in the petition. Pruitt v. State, 903 N.E.2d 899, 
5

905 (Ind. 2009) (citing Ind. Post-conviction Rule 1(6)). “The findings must be supported 

by facts and the conclusions must be supported by the law.” Id. Our review on appeal is 

limited to these findings and conclusions. Id. Because the petitioner bears the burden of 

proof in the post-conviction court, an unsuccessful petitioner appeals from a negative 

judgment. Id. (citing P-C.R. 1(5)). “A petitioner appealing from a negative judgment 

must show that the evidence as a whole ‘leads unerringly and unmistakably to a 

conclusion opposite to that reached by the trial court.’” Id. (quoting Allen v. State, 749 

N.E.2d 1158, 1164 (Ind. 2001), cert. denied). Under this standard of review, “[we] will 

disturb a post-conviction 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.” Id. 

On appeal, Gallien argues only that his appellate counsel was ineffective. To 

prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both 

that his or her counsel’s performance was deficient and that the petitioner was prejudiced 

by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) 

(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)), cert. 

denied. A counsel’s performance is deficient if it falls below an objective standard of 

reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816, 

824 (Ind. 2002). To meet the appropriate test for prejudice, the petitioner 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.” Strickland, 466 U.S. at 694, 104 S. 
6

Ct. at 2068. Failure to satisfy either prong will cause the claim to fail. Grinstead v. State, 

845 N.E.2d 1027, 1031 (Ind. 2006). Most ineffective assistance of counsel claims can be 

resolved by a prejudice inquiry alone. Id. 

Ineffective assistance of appellate counsel 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. Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). Gallien argues 

that his appellate counsel failed to raise an issue on appeal, resulting in waiver. To show 

that counsel was ineffective for failing to raise an issue on appeal thus resulting in waiver 

for collateral review, the defendant must overcome the strongest presumption of adequate 

assistance, and judicial scrutiny is highly deferential. Id. “To evaluate the performance 

prong when counsel waived issues upon appeal, we apply the following test: (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. (quoting 

Timberlake v. State, 753 N.E.2d 591, 605-06 (Ind. 2001), cert. denied). “If the analysis 

under this test demonstrates deficient performance, then we examine whether, ‘the issues 

which . . . appellate counsel failed to raise, would have been clearly more likely to result 

in reversal or an order for a new trial.’” Id. (quoting Bieghler v. State, 690 N.E.2d 188,

194 (Ind. 1997), cert. denied). Further, we must consider the totality of an attorney’s 

performance to determine whether the client received constitutionally adequate 

assistance. Id. at 1195-96. Ineffective assistance is very rarely found in cases where a 

defendant asserts that appellate counsel failed to raise an issue on direct appeal. Id. at 
7

1196. One reason for this is that the decision of what issues to raise is one of the most 

important strategic decisions to be made by appellate counsel. Id.

A. Deficient Performance

We first consider whether the consecutive sentencing issue was significant and 

obvious from the face of the record and whether it was clearly stronger than the issue 

raised on direct appeal. See id. at 1195. The statute at issue here is Indiana Code Section 

35-50-1-2(c), which during the relevant time periods provided:

except for crimes of violence, the total of the consecutive 

terms of imprisonment, exclusive of terms of imprisonment 

under IC 35-50-2-8 and IC 35-50-2-10, to which the 

defendant is sentenced for felony convictions arising out of an 

episode of criminal conduct shall not exceed the advisory 

sentence for a felony which is one (1) class of felony higher 

than the most serious of the felonies for which the person has 

been convicted.

The phrase “episode of criminal conduct” means “offenses or a connected series of 

offenses that are closely related in time, place, and circumstance.” Ind. Code § 35-50-1-

2(b). Gallien was sentenced to sixteen years on the two burglary convictions, but the 

advisory sentence for a Class B felony, which was the next higher class of felony, was ten 

years. See Ind. Code § 35-50-2-5.

At the sentencing hearing, Gallien’s counsel argued to the trial court that the 

consecutive sentencing statute was applicable and that his maximum consecutive 

sentence for the two burglaries was ten years, but the trial court rejected the argument. 

On direct appeal, Gallien’s appellate counsel, who was also his trial counsel, did not raise 

the consecutive sentencing issue. In fact, our supreme court had addressed this statute 
8

shortly before Gallien’s direct appeal in both Reed, 856 N.E.2d at 1199-1200, and Harris 

v. State, 861 N.E.2d 1182 (Ind. 2007). Although Gallien’s appellate counsel made the 

consecutive sentencing argument to the trial court and the issue had been recently 

addressed by our supreme court, he failed to raise the issue in Gallien’s direct appeal. 

We conclude that the consecutive sentencing issue was significant and obvious. 

The consecutive sentencing issue was also clearly stronger than the issue raised on 

appeal. Gallien’s appellate counsel argued only that Gallien’s sentence was inappropriate 

under Indiana Appellate Rule 7(B). Given the significant damage done to the Goodwill 

and the tavern and Gallien’s extensive criminal history, there was little likelihood of 

success on that issue. At the post-conviction hearing, Gallien’s appellate counsel testified 

that if he “had to do it again,” he “would want to raise” the consecutive sentencing issue 

on direct appeal. PCR Hrg. Tr. p. 8. The consecutive sentencing issue is an extremely 

fact-sensitive analysis that would have been readily suitable for appeal. See Slone v. 

State, 11 N.E.3d 969, 972 (Ind. Ct. App. 2014) (“Whether certain offenses constitute a 

‘single episode of criminal conduct’ is a fact-intensive inquiry . . . .”). It is difficult to 

imagine a reasonable strategy for not raising the consecutive sentencing issue under these 

circumstances. We conclude that Gallien’s appellate counsel’s performance was 

deficient for failing to raise the consecutive sentencing issue on direct appeal.

B. Prejudice

To succeed on a claim of ineffective assistance of counsel, Gallien must also 

demonstrate that he was prejudiced by his appellate counsel’s deficient performance. 

Gallien argues that, if his appellate counsel had raised the issue, there is a reasonable 
9

probability that the result of the appeal would have been different. The post-conviction 

court concluded that the two burglary convictions were not an episode of criminal 

conduct and, thus, the consecutive sentencing limitation of Indiana Code Section 35-50-

1-2(c) did not apply. We reach a different result.

As we noted, our supreme court addressed this statute shortly before Gallien’s 

direct appeal in both Reed, 856 N.E.2d at 1199-1200, and Harris, 861 N.E.2d at 1188-89. 

In Reed, our supreme court noted that, in determining whether offenses were an episode 

of criminal conduct, previous cases had analyzed whether a complete account of one 

charge could be related without referring to details of the other charge. Reed, 856 N.E.2d 

at 1199-1200 (discussing Tedlock v. State, 656 N.E.2d 273 (Ind. Ct. App. 1995)). The 

court held:

[A]lthough the ability to recount each charge without 

referring to the other can provide additional guidance on the 

question of whether a defendant’s conduct constitutes an 

episode of criminal conduct, it is not a critical ingredient in 

resolving the question. Rather, the statute speaks in less 

absolute terms: “a connected series of offenses that are 

closely connected in time, place, and circumstance.” I.C. § 

35-50-1-2(b). And as we have observed, “Tedlock

emphasizes the timing of the offenses” and “refers to the 

‘simultaneous’ and ‘contemporaneous’ nature of the crimes 

which would constitute a single episode of criminal conduct.”

Smith v. State, 770 N.E.2d 290, 294 (Ind. 2002) (citing 

Tedlock, 656 N.E.2d at 276).

Id. at 1200. Thus, we must consider whether the two burglaries were “offenses or a 

connected series of offenses that are closely related in time, place, and circumstance.” 

I.C. § 35-50-1-2(b). Whether the offenses could be recounted without referring to each 

other may provide additional guidance, but it is not a dispositive factor. 
10

We have considered the consecutive sentencing statute in the context of burglaries 

in two other cases.1 In Henson v. State, 881 N.E.2d 36 (Ind. Ct. App. 2008), trans. 

denied, two neighboring garages were burglarized on the same night. We concluded that 

those burglaries were “closely related in time, place, and circumstance” and that the 

consecutive sentencing limitation was applicable. Henson, 881 N.E.2d at 39. On the 

other hand, in Slone, 11 N.E.3d at 973, we concluded that three burglaries did not arise 

from a single episode of criminal conduct. There, the defendant broke into one building 

in December 2012, another in April 2013, and a third in May 2013. Although there were 

some common elements of the burglaries, they were committed over the course of six 

months.

Here, the circumstances are closer to those in Henson than Slone. At trial, the 

State proved that Gallien and two other men burglarized the Goodwill. That burglary 

began at 4:35 a.m. and concluded at 5:14 a.m. The burglary at Sammy O’s tavern began 

a few minutes later at 5:28 a.m. It was two to three miles between the Goodwill and 

Sammy O’s. Gallien and his cohorts used a cart stolen in the Goodwill burglary to load a 

change machine at Sammy O’s, and they cut telephone wires at both locations. Officer 

Perrot testified that, after receiving the Goodwill burglary report, he drove around the 

area and found the burglary in progress at Sammy O’s. He testified that there had been 

other burglaries in the area and that the “MO” was that the burglars “would hit one 

 

1 The post-conviction court also relied on Reynolds v. State, 657 N.E.2d 438 (Ind. Ct. App. 1995). There,

the defendant broke into three homes on the same day. This court found that “Each burglary took place as 

a distinct episode in itself; each can be described without referring to details of the others.” Reynolds, 

657 N.E.2d at 441. However, Reynolds relied on the analysis advocated by Tedlock, which our supreme 

court has now discouraged. See Reed, 856 N.E.2d at 1200.
11

business and while [the police] were investigating that crime they would break into 

another business.” Tr. p. 200. During closing arguments, the State emphasized the 

similarities that tied the two crimes together. The State also emphasized that the timing 

of the two burglaries was “planned out” so that the police would be responding to one 

burglary while the men carried out another one. Id. at 395. 

The post-conviction court placed much emphasis on whether the burglaries could 

be described without referring to each other. However, as Reed clarified, that analysis is 

not dispositive regarding whether the offenses are a single episode of criminal conduct. 

Our supreme court has also noted that “[t]here is no requirement that the victims be the 

same, and the acts of two crimes are almost always distinct at least in one element.” 

Harris, 861 N.E.2d at 1188. Thus, the fact that two different businesses were burglarized 

is also not dispositive. Instead, we focus on the small distance between the two 

burglaries, the short amount of time between them, and the apparent scheme that tied 

them together. Based on that analysis, we conclude that the two burglaries were “closely 

related in time, place, and circumstance.” I.C. § 35-50-1-2(b). As a result, the 

consecutive sentencing limitation of Indiana Code Section 35-50-1-2 is applicable, and

the maximum consecutive sentence possible for the two burglaries was ten years rather 

than the sixteen years imposed by the trial court. Gallien was prejudiced by his appellate 

counsel’s failure to raise the issue.

Conclusion

We conclude that the post-conviction court’s denial of Gallien’s petition for postconviction relief was clearly erroneous. Gallien’s appellate counsel was ineffective for 
12

failing to raise an argument regarding the consecutive sentencing limitation of Indiana 

Code Section 35-50-1-2. We reverse and remand for resentencing.

Reversed and remanded.

BROWN, J., concurs.

BRADFORD, J., dissents with opinion.
13

IN THE

COURT OF APPEALS OF INDIANA

GARY A. GALLIEN, )

)

Appellant-Plaintiff, )

)

vs. ) No. 22A01-1402-PC-50

)

STATE OF INDIANA, )

)

Appellee-Defendant. )

BRADFORD, Judge, dissenting.

Because I do not believe that the trial court’s denial of Gallien’s petition for postconviction relief was clearly erroneous, I respectfully dissent.

It is well-settled that post-conviction procedures do not afford the petitioner with a 

super-appeal. Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a 

narrow remedy for subsequent collateral challenges to convictions, challenges which 

must be based on grounds enumerated in the post-conviction rules. Id. A petitioner who 

has been denied post-conviction relief appeals from a negative judgment and as a result, 

faces a rigorous standard of review on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 

2001); Colliar v. State, 715 N.E.2d 940, 942 (Ind. Ct. App. 1999), trans. denied. 
14

Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 

745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his claims by a 

preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 

745. When appealing from the denial of a PCR petition, a petitioner must convince this 

court that the evidence, taken as a whole, “leads unmistakably to a conclusion opposite 

that reached by the post-conviction court.” Stevens, 770 N.E.2d at 745. “It is only where 

the evidence is without conflict and leads to but one conclusion, and the post-conviction 

court has reached the opposite conclusion, that its decision will be disturbed as contrary 

to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied. The 

post-conviction court is the sole judge of the weight of the evidence and the credibility of 

the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). We therefore accept the 

post-conviction court’s findings of fact unless they are clearly erroneous but give no 

deference to its conclusions of law. Id.

Whether the Post-Conviction Court Erred in Determining that Gallien

Did Not Receive Ineffective Assistance of Trial Counsel

Gallien sought post-conviction relief claiming that he received ineffective 

assistance of his appellate counsel. The right to effective counsel is rooted in the Sixth 

Amendment to the United States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 

2006). “‘The Sixth Amendment recognizes the right to the assistance of counsel because 

it envisions counsel’s playing a role that is critical to the ability of the adversarial system 

to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S. 668, 685 

(1984)). “The benchmark for judging any claim of ineffectiveness must be whether 
15

counsel’s conduct so undermined the proper function of the adversarial process that the 

trial court cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 

686. 

The standard of review for a claim of ineffective assistance of 

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

show appellate counsel was deficient in her performance and that the 

deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 

686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Bieghler v. State, 690 N.E.2d 

188, 192-93 (Ind. 1997). To satisfy the first prong, the petitioner must 

show that counsel’s performance was deficient in that counsel’s 

representation fell below an objective standard of reasonableness and that 

counsel committed errors so serious that petitioner did not have the 

“counsel” guaranteed by the Sixth Amendment. McCary v. State, 761 

N.E.2d 389, 392 (Ind. 2002). To show prejudice, the petitioner must show 

a reasonable probability that but for counsel’s errors the result of the 

proceeding would have been different. Id.

Ineffective assistance of appellate counsel 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. Fisher v. State, 810 N.E.2d 

674, 677 (Ind. 2004); Bieghler, 690 N.E.2d at 193-95. To show that 

counsel was ineffective for failing to raise an issue on appeal thus resulting 

in waiver for collateral review, the defendant must overcome the strongest 

presumption of adequate assistance, and judicial scrutiny is highly 

deferential. [Ben-Yisrayl v. State, 738 N.E.2d 253, 261 (Ind. 2000)]. To 

evaluate the performance prong when counsel waived issues upon appeal, 

we apply the following test: (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. Timberlake v. State, 753 

N.E.2d 591, 605-06 (Ind. 2001) (quoting Gray v. Greer, 800 F.2d 644, 646 

(7th Cir. 1986)). If the analysis under this test demonstrates deficient 

performance, then we examine whether, “the issues which ... appellate 

counsel failed to raise, would have been clearly more likely to result in 

reversal or an order for a new trial.” Bieghler, 690 N.E.2d at 194 (citation 

omitted). Further, we must

consider the totality of an attorney’s performance to 

determine whether the client received constitutionally 

adequate assistance ... [and] should be particularly sensitive to 

the need for separating the wheat from the chaff in appellate 

advocacy, and should not find deficient performance when 

counsel’s choice of some issues over others was reasonable in 
16

light of the facts of the case and the precedent available to 

counsel when that choice was made.

Id. Ineffective assistance is very rarely found in cases where a defendant 

asserts that appellate counsel failed to raise an issue on direct appeal. Id. at 

193. One reason for this is that the decision of what issues to raise is one of 

the most important strategic decisions to be made by appellate counsel. Id.

Reed v. State, 856 N.E.2d 1189, 1195-96 (Ind. 2006).

Gallien claims that his appellate counsel was ineffective for failing to argue on 

direct appeal that his sentence should have been capped at ten years because his criminal 

acts constituted a single episode of criminal conduct. Indiana Code section 35-50-1-2(c) 

provides that:

except for crimes of violence, the total of the consecutive terms of 

imprisonment, exclusive of terms of imprisonment under IC 35-50-2-8 and 

IC 35-50-2-10 (before its repeal) to which the defendant is sentenced for 

felony convictions arising out of an episode of criminal conduct shall not 

exceed the advisory sentence for a felony which is one (1) class of felony 

higher than the most serious of the felonies for which the person has been 

convicted.

An episode of criminal conduct “means offenses or a connected series of offenses that are 

closely related in time, place, and circumstance. Ind. Code § 35-50-1-2(b). Whether a 

series of acts constitute a single episode of criminal conduct is a fact-intensive inquiry. 

See Schlichter v. State, 779 N.E.2d 1155, 1157 (Ind. 2002).

It is of note that this court has issued a large number of seemingly inconsistent 

opinions regarding what constitutes a single episode of criminal conduct, some of which 

would tend to indicate that Gallien’s actions might be found to constitute a single episode 

of criminal conduct on appeal. As such, I must agree with the majority that the question 
17

of whether Gallien’s actions constituted a single episode of criminal conduct, which 

would limit his potential sentence to ten years rather than the sixteen imposed by the trial 

court, was significant and obvious from the face of the record. Further, in light of the 

damage caused by Gallien’s actions and Gallien’s criminal history, such an argument 

would arguably have been stronger, if not clearly stronger, that the appropriateness 

challenge raised by appellate counsel on direct appeal. However, even if appellate 

counsel’s failure to raise this issue on direct appeal amounted to deficient performance, I 

do not believe that the post-conviction record demonstrates that Gallien established that 

he was prejudiced by the allegedly deficient performance. 

In Reynolds v. State, 657 N.E.2d 438 (Ind. Ct. App. 1995), we concluded that the 

robbery of three homes on the same day did not constitute a single episode of criminal 

conduct. In Reynolds, the defendant and a companion broke and entered into one home, 

stole items, and left. Id. at 441. The duo then broke and entered another home on 

another street, stole property from that residence, and left. Id. The defendant and his 

companion then went to another home and were in the process of taking property 

therefrom when they encountered a deputy who ordered them to stop. Id. The trial court 

determined that each robbery constituted a separate episode of criminal conduct. Id. 

Upon appeal, we determined that it was within the trial court’s discretion to do so. Id. 

In the instant matter, Gallien and his companions broke into a Goodwill store in 

Floyds Knobs and stole money and a moving dolly. Gallien and his companions then 

drove over four miles to a tavern in Galena. After arriving at the tavern, Gallien and his 

companions broke into the tavern and stole an automated teller machine, a change 
18

machine, and additional money. These facts, similar to the facts presented in Reynolds, 

depict two completely separate thefts. Notably, this is not a situation where Gallien and 

his companions broke into neighboring houses or businesses. Instead, this is a situation 

where Gallien and his companions committed one robbery, drove to another location over 

four miles away from the first location, and committed a second robbery. Based on these 

facts, I do not believe that there was a reasonable probability that a reviewing panel of 

this court would have accepted the argument that Gallien’s actions constituted a single 

episode of criminal conduct. As such, I would conclude that Gallien failed to 

demonstrate prejudice, i.e., a reasonable probability that but for counsel’s errors the result 

of the proceeding would have been different. I would therefore conclude that the trial 

court’s determination that Gallien failed to prove that he suffered ineffective assistance of 

appellate counsel was not clearly erroneous and would vote to affirm the judgment of the 

post-conviction court.