CRONE, Judge.
Henry Lewis appeals the denial of his petition for postconviction relief ("PCR"), in which he argued that he received ineffective assistance of trial and appellate counsel. Concluding that Lewis has failed to carry his burden to show that the postconviction court's decision is contrary to law, we affirm.
We summarized the facts underlying Lewis's convictions in our opinion on direct appeal:
Lewis v. State, 898 N.E.2d 429, 431-32 (Ind. Ct. App. 2008) (citations omitted), trans. denied (2009) ("Lewis II").
Lewis's first trial ended in a hung jury. At his second trial, the jury found Lewis not guilty of theft but otherwise guilty as charged. He appealed. We reversed Lewis's convictions because we concluded that the trial court erred in allowing the State to reopen its case during closing arguments to present additional evidence. Lewis v. State, No. 49A02-0610-CR-921, slip op. at 2-4 (Ind. Ct. App. Apr. 24, 2007), trans. denied ("Lewis I").
A third trial was held. Even though Lewis had been acquitted of the theft count in the second trial, the State presented that count to the jury. The jury found Lewis guilty as charged. Lewis pled guilty to being a habitual offender. At sentencing, the trial court recognized that Lewis had been previously acquitted of the theft charge and dismissed it. The trial court merged the class C felony burglary count with the class B felony burglary count and the criminal recklessness count with the class B felony robbery count. The trial court sentenced Lewis for his convictions of class B felony burglary and class B felony robbery and for being a habitual offender to an aggregate term of forty-five years.
Lewis appealed his convictions. He asserted that the trial court abused its discretion in admitting identification evidence consisting of photo arrays and in refusing to give his tendered jury instructions regarding eyewitness credibility and that the evidence was insufficient to establish the bodily injury element necessary for the enhancement of his robbery conviction to a class B felony. We affirmed. Lewis II, 898 N.E.2d at 435.
Lewis filed a PCR petition, arguing that he received ineffective assistance of trial and appellate counsel. Following a hearing, the postconviction court issued an order ("PCR Order") denying his petition.
Woodson v. State, 961 N.E.2d 1035, 1040-41 (Ind. Ct. App. 2012) (citations and quotation marks omitted), trans. denied.
Lambert v. State, 743 N.E.2d 719, 726 (Ind. 2001) (citations and quotation marks omitted). Although Lewis is "proceeding pro se and lacks legal training, such litigants are held to the same standard as trained counsel and are required to follow procedural rules." Ross v. State, 877 N.E.2d 829, 833 (Ind. Ct. App. 2007), trans. denied (2008).
Lewis contends that he is entitled to postconviction relief because he was denied effective assistance of trial and appellate counsel. "The Sixth Amendment to the United States Constitution guarantees the 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)). "`The purpose of the effective assistance guarantee of the Sixth Amendment is simply to ensure that criminal defendants receive a fair trial.'" Wilkes v. State, 984 N.E.2d 1236, 1245 (Ind. 2013) (quoting Strickland, 466 U.S. at 689).
To prevail on a claim of ineffective assistance, a petitioner must demonstrate both that his counsel's performance was deficient and that he was prejudiced thereby. Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012) (citing Strickland, 466 U.S. at 687). To establish deficient performance, a petitioner must demonstrate that counsel's representation "`fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the counsel guaranteed by the Sixth Amendment.'" Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007) (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). In assessing whether counsel's performance was deficient, we observe that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or most effective way to represent a client, and therefore there is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). To establish prejudice, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Latta, 743 N.E.2d at 1125. "`A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Id. (quoting Strickland, 466 U.S. at 694).
Lewis argues that trial counsel was ineffective in failing to move to dismiss the theft charge because he had been acquitted of that charge in his second trial. Lewis does not challenge the postconviction court's conclusion that even though trial counsel's failure to object to the theft charge constituted deficient performance, Lewis had not suffered prejudice because the trial court did not enter judgment of conviction or impose sentence on the theft charge. PCR Order at 13. Rather, Lewis argues that the theft charge was the underlying offense of the burglary and robbery charges, and therefore he would not have been convicted of burglary and robbery without the theft charge and the evidence pertaining thereto. According to Lewis, the principle of collateral estoppel barred the relitigation of the theft charge as part of the burglary and robbery charges. The postconviction court rejected Lewis's collateral estoppel argument and concluded that it was not necessary for the State to use the facts related to the theft charge in the third trial. Id. at 16.
The double jeopardy rule prohibits multiple punishments for the same offense. Johnson v. State, 749 N.E.2d 1103, 1107-08 (Ind. 2001). "Collateral estoppel [also referred to as issue preclusion] is not the same as double jeopardy, but rather it is embodied within the protection against double jeopardy." Coleman v. State, 946 N.E.2d 1160, 1165 (Ind. 2011).
Id. (citations and quotation marks omitted). "[C]ollateral estoppel `will not often be available to a criminal defendant,' for `it is not often possible to determine with precision how the judge or jury has decided any particular issue.'" Hoover v. State, 918 N.E.2d 724, 734 (Ind. Ct. App. 2009) (quoting 5 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 17.4(a) (3d ed. 2007)), trans. denied (2010).
We begin by reviewing the statutory definitions of the offenses charged and the charging information. Theft is the exertion of unauthorized control over property of another person with intent to deprive the other person of its value or use. Ind. Code § 35-43-4-2. Burglary is the breaking and entering of a building or structure with the intent to commit a felony in it. Ind. Code § 35-43-2-1. Robbery is the taking of property from another person by using or threatening the use of force or by putting any person in fear. Ind. Code § 35-42-5-1. "Theft is an inherently included lesser offense of robbery. One cannot commit robbery without also committing theft." Johnson v. State, 749 N.E.2d 1103, 1109 (Ind. 2001). Thus, it is true that theft may be the underlying felony of a burglary and is a lesser included offense of robbery. However, the charging information, which Lewis completely ignores, shows that the theft of which he was acquitted was not the theft underlying the burglary and robbery charges.
The State charged Lewis with class B felony burglary as follows:
Direct Appeal App. at 48 (emphases added). The class B felony robbery charge read as follows:
Id. at 49 (emphasis added). The class D felony theft charge read as follows:
Id. (emphasis added).
Therefore, in the second trial, the jury acquitted Lewis of exerting unauthorized control over DeMichieli's property. The burglary and robbery charges, of which the jury found Lewis guilty, were not based solely on DeMichieli's property but also on Engelking's property. Therefore, in the third trial, the jury did not need to reconsider the issue of whether Lewis exerted unauthorized control over DeMichieli's property. Accordingly, Lewis has failed to carry his burden to show that the postconviction court's decision is contrary to law.
Lewis asserts that trial counsel was ineffective for failing "to object to the changed testimony of Engelking." Appellant's Br. at 11. "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 (2002). Without citation to the record, Lewis avers that at the first trial Engelking testified only that he saw a man standing outside the back fence. Lewis states that at the second trial, the prosecutor asked Engelking if he saw Lewis crawling under the fence, and that trial counsel "failed to object to [this] leading question." Id. at 7. Lewis then states that at the third trial, "Engelking again testified that he saw Lewis crawling under the fence into the alley." Id. at 8. Other than arguing that Engelking's testimony had changed, Lewis fails to provide a cogent argument or citation to the Indiana Rules of Evidence as a basis for an objection to Engelking's testimony at the third trial. Accordingly, his argument is waived. See Ind. Appellate Rule 46(A)(8)(a) (requiring that argument be supported by cogent reasoning with citations to authority); Cooper v. State, 854 N.E.2d 831, 835 n.1 (Ind. 2006).
Lewis contends that trial counsel failed to consult with him during pretrial, and
Appellant's Br. at 13. The PCR court found that trial counsel "met with Lewis numerous times at the jail prior to trial and discussed the trial strategy with Lewis." PCR Order at 5. The PCR court further concluded that Lewis presented no evidence to support this claim. Id. at 11. Our review of the record shows that at the PCR hearing, trial counsel testified that he remembered meeting with Lewis "many times at the jail," recalled "a lot of discussions about [their] strategy," and believed that he communicated to Lewis "what [their] strategy at trial was going to be." PCR Tr. at 50. Lewis did not testify at the PCR hearing, and thus his counsel's testimony is uncontradicted. We conclude that Lewis has failed to carry his burden to show that the PCR court's decision is contrary to law.
Lewis argues that trial counsel's "failure to seek suppression of evidence regarding out-of-court identification procedures, or to contemporaneously object to evidence about the out-of-court procedures or the in-court identification was ineffective assistance." Appellant's Br. at 14. The postconviction court concluded that trial counsel objected to the admission of three separate photo arrays on a variety of grounds, which were overruled by the trial court, but that he was successful in preventing an in-court identification of Lewis by a law enforcement witness. However, Lewis contends that trial counsel should have objected to the photo array shown to Engelking on the basis that it contained only six men and that he had already been informed that the perpetrator had been arrested. We are unpersuaded that an objection to the photo array on the basis now advanced would have been sustained. See Gambill v. State, 436 N.E.2d 301, 303 (Ind. 1983) ("It is inevitable that a witness may know that the police have a suspect when he is asked to view a `line up' or limited photographic array.").
Lewis also argues that "the in-court identification of [him] lacked sufficient independent reliability" to be admissible. Appellant's Br. at 15. Although Lewis does not specify the in-court identification to which he is referring or provide any citations to the record, we can infer from the PCR Order that Lewis is referring to Engelking's in-court identification of Lewis. The record shows that during the commission of the offenses, Engelking was close enough to Lewis to tap him on the shoulder and carry on a conversation. Trial Tr. at 68, 70, 73-75. Accordingly, we are unpersuaded that Engelking's in-court identification of Lewis lacked sufficient independent reliability.
Lewis asserts that trial counsel failed to tender any instruction on eyewitness identification, and thus provided ineffective assistance. Lewis is incorrect. See Lewis II, 898 N.E.2d at 433 (concluding that trial court did not abuse its discretion when it refused to give either one of trial counsel's tendered jury instruction regarding eyewitness credibility). Therefore, this claim is meritless.
Lewis contends that trial counsel was ineffective for failing to object to the trial court's elevation of the robbery charge to a class B felony on the ground that the State failed to produce any evidence that Engelking had suffered any physical impairment. The element of bodily injury elevates class C felony robbery to a class B felony. Ind. Code § 35-42-5-1. "Bodily injury" is defined as "any impairment of physical condition, including physical pain." Ind. Code § 35-41-1-4. As the State observes, this Court addressed the sufficiency of the evidence for bodily injury on direct appeal, and we concluded that Engelking's testimony that he was "punched" in the face "pretty hard" and that "it didn't feel good" was sufficient evidence that he had suffered bodily injury. Id. at 435-36; see also Lewis v. State, 438 N.E.2d 289, 294 (Ind. 1982) (concluding that physical pain suffered by victim was sufficient to establish bodily injury). Thus, Lewis's argument fails.
Lastly, Lewis asserts that his appellate counsel provided ineffective assistance by failing to argue that there was insufficient evidence of physical impairment to establish the bodily injury element of class B felony robbery. This argument is unavailing for the same reason as the previous argument. Therefore, we affirm the denial of Lewis's PCR petition.
Affirmed.
BAKER, J., and BARNES, J., concur.
