GARY A. GALLIEN, Appellant-Petitioner,
STATE OF INDIANA, Appellee-Respondent
APPEAL FROM THE FLOYD SUPERIOR COURT. The Honorable Susan L. Orth, Judge. Cause No.22D01-1010-PC-18.
ATTORNEYS FOR APPELLANT: STEPHEN T. OWENS, Public Defender of Indiana; J. MICHAEL SAUER, Deputy Public Defender, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; MICHAEL GENE WORDEN, Deputy Attorney General, Indianapolis, Indiana.
BARNES, Judge. BROWN, J., concurs. BRADFORD, J., dissents with opinion.
Gary Gallien appeals the post-conviction court's denial of his petition for post-conviction relief. We reverse and remand.
Gallien raises one issue, which we restate as whether he was denied the effective assistance of appellate counsel.
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, 888 N.E.2d 875 (Ind.Ct.App. 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 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, 888 N.E.2d 875.
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 post-conviction 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 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 post-conviction 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 post-conviction court noted that " [t]hese are separate and distinct acts to burglarize two (2) separate businesses with two (2) separate ...