Corey L. Spurlock v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), FILED

this Memorandum Decision shall not be

regarded as precedent or cited before any Feb 17 2017, 8:16 am

court except for the purpose of establishing CLERK

Indiana Supreme Court

the defense of res judicata, collateral Court of Appeals

and Tax Court

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Stephen T. Owens Curtis T. Hill, Jr.

Public Defender of Indiana Attorney General of Indiana

Kevin R. Hewlate Michael Gene Worden

Deputy Public Defender Deputy Attorney General

Indianapolis, Indiana Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Corey L. Spurlock, February 17, 2017

Appellant-Petitioner, Court of Appeals Case No.

49A05-1609-PC-1976

v. Appeal from the Marion Superior

Court

State of Indiana, The Honorable Kurt Eisgruber,

Appellee-Respondent. Judge

Trial Court Cause No.

49G01-0203-PC-84150

Riley, Judge.

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STATEMENT OF THE CASE

[1] Appellant-Petitioner, Corey L. Spurlock (Spurlock), appeals the post-conviction

court’s denial of his petition for post-conviction relief.

[2] We affirm in part, reverse in part, and remand.

ISSUES

[3] Spurlock raises two issues on appeal, which we restate as follows:

(1) Whether the post-conviction court erred in denying Spurlock’s petition for

post-conviction relief because he received ineffective assistance of trial counsel;

and

(2) Whether the post-conviction court erred in denying Spurlock’s petition for

post-conviction relief because he received ineffective assistance of appellate

counsel.

FACTS AND PROCEDURAL HISTORY

[4] Spurlock is appealing from the denial of a petition for post-conviction relief.

The facts underlying Spurlock’s convictions were set forth in a memorandum

decision issued on direct appeal as follows:

On November 3, 1999, Indianapolis Police officers received a

report of a dead body at 2427 North Oxford Street. There were

no signs of forced entry at the address, but once there, officers

found the dead bodies of Michael Haddix, Jr. [(Haddix)] and

Crystal Davenport [(Davenport)]. Haddix had been shot three

times including a fatal wound to the back of his head. Davenport

had been fatally shot in the forehead.

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Haddix’s father testified that it was likely that Haddix kept a gun

in his house for protection. However, no weapon was retrieved

from Haddix’s residence after his death. Further, Haddix’s father

had given Haddix some money, and Haddix recently had won

some money, but no cash was found in Haddix’s home after his

death.

On November 12, 1999, Aurelia Mason heard gunshots coming

from the residence of her next-door neighbors. When police

officers arrived, there was no sign of forced entry at 2960 North

Park Avenue, but officers found the dead bodies of Benjamin

Boone [(Boone)] and Doris Johnson [(Johnson)]. Boone had

been fatally shot in the back of the head and neck. Johnson had

been fatally shot three times in the back of the head and neck.

Boone and Johnson both used crack cocaine in their house.

There was also a gun inside the house. Ronald Freeman

[(Freeman)], Boone’s friend, was at Boone’s house in the evening

on November 11, 1999. Freeman smoked crack cocaine with

Boone and Johnson, and then left shortly after two other men

arrived at Boone’s house. Freeman testified that as he walked

away from the house he heard gunshots and saw the flash from a

gun being fired. Police officers recovered several spent shell

casings from the residence in addition to bullet fragments.

In March of 2002, during the course of another investigation,

homicide detectives received information about a suspect in the

four murders named “Lolo” and the location where “Lolo” lived.

Detectives contacted [Spurlock’s] grandmother who told them

that [Spurlock’s] nickname was “Lolo.” Detective Roy West

[(Detective West)] asked [Spurlock’s] grandmother to have

[Spurlock] contact him. That same day [Detective] West

received a phone call from [Spurlock]. [Spurlock] agreed to meet

with [Detective] West at the police headquarters the next day

after [Spurlock] finished work.

On March 7, 2002, [Spurlock] arrived at police headquarters to

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discuss the . . . homicides [of Haddix, Davenport, Boone, and

Johnson]. [Spurlock] was shown some photographs to determine

if he could identify any individuals included in the photo arrays.

[Spurlock] confirmed that one of his nicknames was “Lolo.”

Detective[] West and [Detective Thomas] Tudor [(Detective

Tudor)] advised [Spurlock] of his rights and questioned him

further about the homicides. [Spurlock] made audio-taped

statements to the detectives regarding the two incidents in

November of 1999. [Spurlock] identified Terrence Swann

[(Swann)] and Anthony “Banks” Johnson [(Banks)] as the

primary perpetrators of the homicides that were committed as

part of the robberies of those victims.[ 1] [Spurlock] returned

home after giving those statements to the detectives.

The following day, [Spurlock] telephoned Detective West and

informed him that he was no longer going to cooperate with the

police, and that what he had told them the previous day was not

true.

Spurlock v. State, No. 49A05-0305-CR-247, slip op. at 2-4 (Ind. Ct. App. May 6,

2014).

[5] On March 24, 2002, the State filed an Information, charging Spurlock with

Count I, murder, a felony, Ind. Code § 35-42-1-1; Count II, murder, a felony,

I.C. § 35-42-1-1; Count III, conspiracy to commit robbery, a Class A felony,

I.C. §§ 35-41-5-2, -42-5-1; Count IV, robbery, a Class A felony, I.C. § 35-42-5-1;

Count V, murder, a felony, I.C. § 35-42-1-1; Count VI, murder, a felony, I.C. §

1

In addition, Spurlock admitted to Detective West and Detective Tudor that he accompanied Swann and

Banks to both residences with the intent that they were going to rob Haddix/Davenport and Boone/Johnson.

Although Spurlock stated that on both occasions he was armed with a .38 caliber firearm, he explained to the

officers that, in both instances, he immediately exited the house when Swann began shooting the victims.

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35-42-1-1; Count VII, conspiracy to commit robbery, a Class A felony, I.C. §§

35-41-5-2, -42-5-1; and Count VIII, robbery, a Class A felony, I.C. § 35-42-5-1.

On July 12, 2002, Spurlock filed a motion to suppress the statements he made

during his police interview regarding the events of November 12, 1999, and on

August 1, 2002, Spurlock filed a motion to suppress the statements he made to

police regarding the events of November 3, 1999. The trial court denied

Spurlock’s suppression motions on October 31, 2002.

[6] On March 24-27, 2003, the trial court conducted a jury trial. At the close of the

State’s case-in-chief, Spurlock moved for judgment on the evidence pursuant to

Indiana Trial Rule 50, which the trial court denied. Following the presentation

of all evidence, the jury returned a guilty verdict on all eight Counts, and the

trial court entered judgment of conviction in accordance with the verdict. On

April 25, 2003, the trial court held a sentencing hearing. The trial court vacated

Spurlock’s convictions on Count IV, the Class A felony robbery of Davenport

and Haddix, and Count VIII, the Class A felony robbery of Boone and

Johnson, based on double jeopardy grounds. On Counts I and II—for the

felony murders of Davenport and Haddix—the trial court sentenced Spurlock to

forty-five years on each charge. As to Count III, Class A felony conspiracy to

commit robbery of Davenport and Haddix, the trial court sentenced Spurlock to

serve twenty years. For Counts V and VI, the felony murders of Boone and

Johnson, the trial court imposed sentences of forty-five years on each. Finally,

for Count VII, Class A felony conspiracy to commit robbery of Boone and

Johnson, the trial court ordered Spurlock to serve thirty years. Counts I, II, III,

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V, and VI were ordered to run concurrently, whereas Count VII was ordered to

be served consecutively to Count I, resulting in an aggregate sentence of

seventy-five years, fully executed in the Indiana Department of Correction.

[7] On May 19, 2003, Spurlock filed a Notice of Appeal. On May 6, 2004, this

court issued a memorandum decision, affirming Spurlock’s convictions. See

Spurlock, No. 49A05-0305-CR-247, slip op. at 15. We held that, contrary to

Spurlock’s assertions, the State satisfied the corpus delicti requirement to allow

for the admission of Spurlock’s confessions, and we further concluded that

Spurlock’s statements during his police interview were made voluntarily. See id.

slip op. at 9, 15.

[8] On March 21, 2005, Spurlock filed a pro se verified petition for post-conviction

relief, claiming that he received ineffective assistance of both trial and appellate

counsel. On September 8, 2008, the trial court dismissed Spurlock’s petition

due to his failure to prosecute. Six years later, on October 31, 2014, Spurlock

again filed a verified petition for post-conviction relief, which was amended on

September 2, 2015. In his amended petition, Spurlock once more claimed that

he was denied the effective assistance of both trial and appellate counsel in

violation of the United States and Indiana Constitutions. Specifically, Spurlock

alleged that his “trial counsel was ineffective for failing to object to statements

made by the prosecutor during closing arguments” and that his “appellate

counsel was ineffective for failing to raise a claim that [Spurlock’s] convictions

for conspiracy to commit robbery, as Class A felonies, are in violation of double

jeopardy.” (Appellant’s App. Vol. III, pp. 165-66). On November 17, 2015, the

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post-conviction court conducted a hearing on Spurlock’s petition. On August

8, 2016, the post-conviction court issued its Findings of Fact and Conclusions

of Law Denying Post-Conviction Relief.

[9] Spurlock now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

[10] A post-conviction proceeding provides a petitioner with the “opportunity to

raise issues that were unknown or unavailable at the time of the original trial or

the direct appeal.” Maymon v. State, 870 N.E.2d 523, 526 (Ind. Ct. App. 2007)

(citing Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S.

1164 (2002)). A post-conviction proceeding, however, is not “a super appeal,”

and it “provide[s] only a narrow remedy for subsequent collateral challenges to

convictions.” Id. (citing Ben-Yisrayl, 738 N.E.2d at 258). Because post-

conviction proceedings are civil in nature, the petitioner bears the burden of

establishing his grounds for relief by a preponderance of the evidence. Stevens v.

State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied, 540 U.S. 830 (2003); see Ind.

Post-Conviction Rule 1(5).

[11] As stated by our supreme court, “[a] petitioner who has been denied post-

conviction relief faces a rigorous standard of review.” Dewitt v. State, 755

N.E.2d 167, 169 (Ind. 2001). Our court will affirm the post-conviction court’s

denial of relief unless “the evidence as a whole leads unerringly and

unmistakably to a decision opposite that reached by the post-conviction court.”

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Id. at 170. In other words, “[t]his [c]ourt 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. (first alteration in original). On review, we consider

only the evidence and reasonable inferences supporting the post-conviction

court’s decision. Hall v. State, 849 N.E.2d 466, 468 (Ind. 2006). Moreover, the

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

witnesses.” Id. at 468-69. We will review the post-conviction court’s factual

findings for clear error, but we owe no deference to its conclusions of law.

Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013).

II. Ineffective Assistance of Trial Counsel

[12] Spurlock claims that his trial counsel rendered ineffective assistance. The Sixth

Amendment to the United States Constitution guarantees a criminal defendant

“the right to effective assistance of counsel.” Latta v. State, 743 N.E.2d 1121,

1125 (Ind. 2001) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984), reh’g

denied). When considering whether a petitioner has received ineffective

assistance of counsel, “a ‘strong presumption arises that counsel rendered

adequate assistance and made all significant decisions in the exercise of

reasonable and professional judgment.’” McCullough v. State, 973 N.E.2d 62, 74

(Ind. Ct. App. 2012) (quoting Morgan v. State, 755 N.E.2d 1070, 1073 (Ind.

2001)), trans. denied. Because counsel’s performance is presumed effective, “a

defendant must offer strong and convincing evidence to overcome this

presumption.” Id. (quoting Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002)).

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[13] It is well established that “[i]solated poor strategy, inexperience, or bad tactics

do not necessarily constitute ineffective assistance.” Id. (citing Clark v. State,

668 N.E.2d 1206, 1211 (Ind. 1996)). In order to succeed on a claim of

ineffective assistance of counsel, the “petitioner must demonstrate both that his

counsel’s performance was deficient and that the petitioner was prejudiced by

the deficient performance.” Id. (citing Strickland, 466 U.S. at 687). Deficient

performance is that which “falls below an objective standard of reasonableness

based on prevailing professional norms.” Id. (citing French v. State, 778 N.E.2d

816, 824 (Ind. 2002)). Prejudice is established if “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 74-75 (citing French, 778 N.E.2d

at 824). “‘A reasonable probability is a probability sufficient to undermine

confidence in the outcome.’” Id. at 75 (quoting Perez v. State, 748 N.E.2d 853,

854 (Ind. 2001)). Failure to establish either deficient performance or prejudice

will cause the petitioner’s claim to fail. Henley v. State, 881 N.E.2d 639, 645

(Ind. 2008). “If we can easily dismiss an ineffective assistance claim based

upon the prejudice prong, we may do so without addressing whether counsel’s

performance was deficient.” Id.

[14] In this case, Spurlock contends that his trial counsel’s performance was

deficient based upon a failure to object to a statement made during the State’s

closing argument. During the trial, evidence was presented that Banks, one of

Spurlock’s co-conspirators, was killed in the month following the murders of

Davenport, Haddix, Boone, and Johnson. During the course of his

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investigation into Banks’ death, Officer Andrew Stark (Officer Stark) of the

Indianapolis Metropolitan Police Department received a call from Swann—i.e.,

the third co-conspirator—concerning Banks’ murder. Based on information he

received from Swann, Officer Stark advised Detective West and Detective

Tudor that they should locate and talk to “[a] subject by the name of Lolo”

regarding the four murders from November of 1999. (Tr. Vol. II, p. 270). At

the time, there was no indication as to the real identify of “Lolo.” (Tr. Vol. II,

p. 270). As Detective West’s investigation progressed, on February 27, 2002,

he had the opportunity to escort Swann around Indianapolis in his police

vehicle for the purpose of locating the firearm that had been used in the

Boone/Johnson murders. When they drove by the house located at 3510 North

Adams Street, Swann pointed at the residence and informed Detective West

that it was Lolo’s house. On March 6, 2002, Detective West returned to the

house at 3510 North Adams. Hanna Poindexter answered the door and

indicated that her grandson, Lolo, lived there with her. From there, it was

determined that “Lolo” was an alias used by Spurlock. (Tr. Vol. II, p. 311).

[15] At trial, when Detective West was testifying as to his discovery of Spurlock

based on Swann pointing out Lolo’s house, defense counsel objected on hearsay

grounds as to “how that address was made aware to [Detective West].” (Tr.

Vol. II, p. 308). The State clarified that it was not offering the testimony for the

truth of the matter asserted, but rather to show why Detective West made the

decision to return to that house in furtherance of his investigation. The trial

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court ruled that Detective West could testify that Swann pointed to the house

but could not inform the jury that Swann had identified the house as Lolo’s.

[16] During the defense’s closing argument, Spurlock’s attorney heavily emphasized

the fact that the State’s case relied entirely on Spurlock’s confession, which

Spurlock maintained was coerced. In rebuttal, the State argued:

I want to start out with [Spurlock’s] assertion that these two

confessions are the only evidence that we have of his guilt—well,

what did he leave out when he said that, how did we get to this

point, how did we pluck him out of the air and get him to confess

to these crimes? What he failed to mention to you, that this is

not the only evidence that we have—how did we get to him?

Remember, . . . Swann pointing to Lolo’s grandmother’s house—

that’s some pretty strong evidence, and sure enough, Detective

West goes back to that house and there’s a grandmother there,

[Spurlock’s] grandmother, and there’s a Lolo there sitting right

here in front of you today, that’s some pretty strong evidence,

ladies and gentlemen, something you never heard them refer to

for obvious reasons.

(Tr. Vol. III, p. 709).

[17] “In order to prove ineffective assistance of counsel due to the failure to object, a

defendant must prove that an objection would have been sustained if made and

that he was prejudiced by the failure.” Wrinkles v. State, 749 N.E.2d 1179, 1192

(Ind. 2001), cert. denied, 535 U.S. 1019 (2002). According to Spurlock, his trial

counsel should have objected to the State’s “reference to facts not in evidence”

because “there was no evidence that Swann identified the house as Lolo’s

grandmother’s.” (Appellant’s Br. p. 27; Appellant’s Reply Br. p. 7). Moreover,

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Spurlock insists that the State was prohibited from relying on the fact that

Swann pointed to a house as substantive evidence because it was admitted only

for the purpose of showing Detective West’s course of investigation. Spurlock

insists that his trial counsel’s failure to object during the State’s closing

argument was prejudicial because there is evidence that the jury “struggl[ed]

with what weight to give Spurlock’s confession.” (Appellant’s Br. p. 30). Thus,

Spurlock argues that

[i]t is reasonable that the jury could have used the State’s

argument that [Swann] identified Spurlock’s grandmother’s

house, a fact not in evidence, to bolster Spurlock’s confession. If

the jury believed that a co-defendant, who they knew had already

been convicted of crimes in one of the incidents, identified

Spurlock as being involved, this would bolster the confession.

(Appellant’s Br. p. 31).

[18] In its Findings of Fact and Conclusions of Law Denying Post-Conviction

Relief, the post-conviction court concluded that even if Spurlock’s trial counsel

had objected, such objection would not have been sustained because the State’s

comment was nothing more than its own analysis of the evidence. We agree.

A review of the record reveals that the jury heard evidence that Officer Starks

informed Detective West and Detective Tudor that they should locate and

interview an individual with the street name of Lolo with respect to their

homicide investigations. Thereafter, Detective West was driving around with

Swann in search of the firearm used in the commission of the instant offenses.

During that time, Swann pointed at a house located at 3510 North Adams

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Street, which prompted Detective West to further investigate. When Detective

West returned to that address, he discovered that an individual named Lolo

lived there. Detective West left a message with Lolo’s grandmother, and it was

Spurlock who responded. Spurlock subsequently informed Detective West that

he is also known as Lolo.

[19] Our supreme court has recognized that there is a risk with the course-of-

investigation exception to hearsay that “the jury will rely upon the out-of-court

assertion as substantive evidence of guilt—rather than for the limited purpose of

explaining police investigation.” Blount v. State, 22 N.E.3d 559, 566 (Ind.

2014). 2 Here, however, the risk of prejudice is minimal because Detective West

was already aware of possible involvement by an individual named Lolo; as

such, Spurlock was not implicated based upon Swann’s act of pointing alone.

In addition, Swann did not directly accuse Spurlock of committing the offenses.

See id. Rather, it was Spurlock himself who confirmed his own identity as Lolo

and confessed to participating in the robbery and murders of Davenport,

Haddix, Boone, and Johnson.

[20] Accordingly, we find that it was entirely reasonable for the jury to reach the

same inference that the State argued during its closing argument without

inappropriately considering the evidence for any purpose other than for which it

was admitted. Moreover, not only did the State—immediately prior to making

2

Hearsay can include a non-verbal assertion, such as where a witness identifies a perpetrator by pointing.

Ind. Evidence Rule 801(a)(2); Sandefur v. State, 945 N.E.2d 785, 788 (Ind. Ct. App. 2011).

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the remark now at issue—emphasize that “statements by attorneys are not

evidence,” but the trial court specifically instructed the jury that any statements

made by the attorneys during closing arguments are not evidence. (Tr. Vol. III,

p. 708). Our court presumes that a jury follows the instructions that it is given.

See R.T. v. State, 848 N.E.2d 326, 332 (Ind. Ct. App. 2006), trans. denied.

Therefore, not only did Spurlock fail to prove that his objection, if made, would

have been sustained, but he also failed to carry his burden of establishing that

the results of the proceeding would have been any different.

III. Ineffective Assistance of Appellate Counsel

[21] Next, Spurlock claims that his appellate counsel rendered ineffective assistance.

When considering whether a petitioner received ineffective assistance of

appellate counsel, we rely on the same standard of review as used in an analysis

of ineffective assistance of trial counsel. Reed v. State, 856 N.E.2d 1189, 1195

(Ind. 2006). Thus, Spurlock must demonstrate that his appellate counsel was

deficient and that such deficiency resulted in prejudice. Id.

[22] In general, claims of ineffective assistance of appellate counsel “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, Spurlock argues the second type—that

his appellate counsel was ineffective by failing to raise an issue on appeal,

which resulted in waiver of the matter for collateral review. We reiterate that

Spurlock “must overcome the strongest presumption of adequate assistance,

and judicial scrutiny is highly deferential.” Id. (citing Ben-Yisrayl, 738 N.E.2d at

261). In considering whether appellate counsel’s performance was deficient for

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failing to raise an issue, “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)). “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. (second

alteration in original) (quoting Bieghler v. State, 690 N.E.2d 188, 194 (Ind.

1997)). We must further

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 light of the facts of the case and the

precedent available to counsel when that choice was made.

Id. at 1195-96 (alterations in original) (quoting Bieghler, 690 N.E.2d at 194).

[23] Spurlock argues that his appellate counsel was deficient by failing to argue that

his convictions for conspiracy to commit robbery resulting in serious bodily

injury, Class A felonies, violate double jeopardy “because it was clear that the

same injuries were used to enhance the conspiracy convictions to Class A

felonies and establish the felony murder convictions.” (Appellant’s Br. p. 18).

In arguing that the issue was obvious from the face of the record, Spurlock

directs our attention to Henderson v. State, 769 N.E.2d 172 (Ind. 2002), which

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was decided prior to Spurlock’s direct appeal. In Henderson, similar to the

instant case, the defendant challenged his convictions for felony-murder and

Class A felony conspiracy to commit robbery on double jeopardy grounds. Id.

at 177. Our supreme court found no violation of the double jeopardy clause

because it was

not reasonably possible that the jury used the same evidentiary

facts to establish all the elements of both [C]lass A felony

conspiracy to commit robbery and felony murder (the defendant

killed [the victim] while committing the robbery of [another

individual]). In other words, the offenses of felony-murder and

[C]lass A felony conspiracy were each established by the proof of

a fact not used to establish the other offense.

Id. at 178.

[24] Nonetheless, our supreme court elected to review the defendant’s claims under

certain “rules of common law and statutory construction.” Id. These “rules of

statutory construction and common law . . . are often described as double

jeopardy, but are not governed by the constitutional test set forth in Richardson

[v. State, 717 N.E.2d 32 (Ind. 1999)].” Pierce v. State, 761 N.E.2d 826, 830 (Ind.

2002). Included among these rules is “the doctrine that where one conviction is

based on the same bodily injury that forms the basis for elevating another

conviction to a higher penalty classification, the two cannot stand.” Henderson,

769 N.E.2d at 178. Because the victim’s death “was the basis for [the

defendant’s] convictions of both murder and Class A felony conspiracy,” the

Henderson court held that the conspiracy conviction should be reduced to a

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Class B felony conspiracy to commit robbery, which requires only commission

while armed with a deadly weapon rather than a result of serious bodily injury.

Id. at 178-79; see I.C. § 35-42-5-1. Spurlock now claims that had this issue been

raised on direct appeal, he would have succeeded in having his two convictions

for Class A felony conspiracy to commit robbery (Counts III and VII) reduced

to Class B felonies.

[25] The State, on the other hand, argues that the double jeopardy claim is not

obvious on the face of the record because our court, on direct appeal, did not

raise the issue sua sponte. See Whitham v. State, 49 N.E.3d 162, 168 (Ind. Ct.

App. 2015) (noting that “questions of double jeopardy implicate fundamental

rights and, as such, may be raised for the first time on appeal, or even by this

court sua sponte”), trans. denied. Nevertheless, the State maintains that even if

appellate counsel was deficient in failing to raise the common law/statutory

construction issue, Spurlock has failed to establish prejudice as to Count III

(conspiracy to commit robbery of Davenport and Haddix) because the trial

court ordered the sentence to run concurrently with the sentence imposed for

Count I (murder of Davenport). As to Count VII (conspiracy to commit

robbery of Boone and Johnson), which sentence was ordered to be served

consecutively to the rest, the State concedes that “there would be prejudice to

[Spurlock].” (State’s Br. p. 22). 3

3

Yet, the State attempts to argue that Count VII was not improperly enhanced to a Class A felony because

Count VII relies on conspiracy to commit robbery that resulted in bodily injury to Boone and Johnson,

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[26] We agree with Spurlock that, at the time of his direct appeal, it was sufficiently

established that if “one conviction is based on the same bodily injury that forms

the basis for elevating another conviction to a higher penalty classification, the

two cannot stand.” Henderson, 769 N.E.2d at 178; see also Pierce, 761 N.E.2d at

830 (reducing a robbery conviction from a Class B felony to a Class C felony

because it was based on the same bodily injury that formed the basis for a Class

A felony burglary conviction). 4 Here, the State charged in Count III, as a Class

A felony, that Spurlock committed conspiracy to commit robbery which

resulted in serious bodily injury to Davenport and Haddix. The State relied on

the same bodily injuries to charge Spurlock with the murders of Davenport and

Haddix (Counts I and II). Similarly, the same bodily injuries were relied upon

in Count VII to charge Spurlock with Class A felony conspiracy to commit

robbery of Boone and Johnson as in Counts V and VI for the murders of Boone

and Johnson. Accordingly, because the issue is obvious from the face of the

record and stronger than the issues actually raised, we find that Spurlock has

whereas Count I charged the murder of Davenport. Thus, the State contends that these charges “involve

entirely different victims” and “do not fall within the ‘double jeopardy’ rule argued by [Spurlock].” (State’s

Br. p. 22). It appears that the State’s argument is based on the fact that the trial court ordered the sentence on

Count VII to run consecutively to the sentence on Count I. It is clear, however, that Counts V and VI, the

murders of Boone and Johnson, rely on the same bodily injury as used to enhance the conspiracy charge in

Count VII to a Class A felony. By ordering Count VII to run consecutively to Count I, the trial court

necessarily ordered Count VII to also run consecutively to Counts V and VI (as Counts I, II, III, V, and VI

were all ordered to run concurrently). Therefore, we find no merit in the State’s argument.

4

The post-conviction court conversely concluded that, at the time of Spurlock’s direct appeal, the law in this

area was unsettled. In particular, the post-conviction court cited Spivey v. State, 761 N.E.2d 831 (Ind. 2002).

In Spivey, the supreme court determined that the defendant’s “convictions for felony-murder and conspiracy

to commit burglary [did] not qualify for relief” under the rules of statutory construction and common law

already discussed. Id. at 834. However, Spivey, unlike Henderson and Pierce, did not involve an enhancement

on the conspiracy charge based on the same bodily injury that formed the basis for the felony-murder charge.

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demonstrated that his appellate counsel was deficient in failing to raise this

issue on appeal. Furthermore, had this issue been raised, Spurlock likely would

have prevailed, resulting in a reduction of his conspiracy charges to Class B

felonies (as Spurlock was found to be armed with a deadly weapon in his

conspiracies to commit robbery). Notwithstanding whether the trial court

imposed a concurrent sentence as to Count III, we agree with Spurlock that a

higher-level felony is prejudicial because he “has an interest in his criminal

history accurately reflecting his convictions.” (Appellant’s Reply Br. p. 6). In

addition, because Spurlock’s sentence on Count VII was ordered to run

consecutively, entry as a Class B felony will result in a lower aggregate

sentence. Therefore, we conclude that Spurlock has demonstrated that he

received ineffective assistance of appellate counsel.

CONCLUSION

[27] Based on the foregoing, we conclude that the post-conviction court erred in

denying Spurlock’s petition for post-conviction relief because, although

Spurlock received effective assistance of trial counsel, he received ineffective

assistance of appellate counsel. Accordingly, we remand for the entry of

judgment of conviction on Counts III and VII to be reduced to Class B felonies

and for the trial court to re-sentence accordingly. 5

5

Because the trial court initially imposed the then-statutory minimum sentence of twenty years on Count III

and the then-advisory term of thirty years on Count VII for Class A felonies, Spurlock asks that we now order

the minimum and advisory sentences, respectively, for Class B felonies. As sentencing is a matter of trial

court discretion, we decline Spurlock’s request. See Buchanan v. State, 767 N.E.2d 967, 970 (Ind. 2002).

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[28] Affirmed in part, reversed in part, and remanded.

[29] Crone, J. and Altice, J. concur

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