Aaron Blanche, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Aaron Blanche appeals from the post-conviction court's order, arguing the post-conviction court erred by denying him relief because his trial counsel was ineffective for failing to object to an erroneous jury instruction, and by not fully correcting his sentence when it granted him post-conviction relief. Concluding that there is no error, we affirm.

Issues

[2] We restate the issues as follows:

I. Whether the post-conviction court erred by concluding that Blanche suffered no prejudice from his trial counsel's failure to object to the attempted-murder instruction which was given.

II. Whether the post-conviction court erred by declining to vacate Blanche's habitual offender enhancement when it corrected his sentence.

Facts and Procedural History

[3] The facts supporting Blanche's conviction were reported in our Supreme Court's opinion in Blanche v. State, 690 N.E.2d 709 (Ind. 1998). A summary of the opinion follows. Early in the morning of May 5, 1995, Stacy Reed and a friend stopped at a store to buy cigarettes. The friend stayed in the car as Reed entered the store. Blanche was already in the store parking lot in another car. Reed's wife had testified against Blanche in another prosecution, and the two men knew each other. Blanche followed Reed into the store.

[4] Blanche commented on Reed's wife's testimony in a way that frightened Reed. Reed left the store, got in the car, and instructed his friend to drive away. Reed's friend was unable to put the car in gear because Reed had knocked off the gear shift knob while hurrying to get in the car. Blanche, who had followed Reed to the car, drew a gun, pointed it at Reed's head, and said he was going to kill him. When Blanche pulled the trigger, the gun did not fire. He hit the gun with his hand several times and fired it through the car window directly at Reed. The bullet somehow missed Reed and struck his friend's right thigh. Blanche attempted to shoot again multiple times, but the gun malfunctioned.

[5] Blanche ran when an off-duty sheriff's deputy arrived after hearing the shot. That deputy and other officers pursued Blanche by car and on foot. An officer found him near an apartment complex and ordered him to stop. Blanche ran away but eventually was apprehended by the officer.

[6] Officers found the gun near the area where the chase took place. Reed identified it as similar to the one used by Blanche. Testing showed that the bullet recovered from the scene was fired from that gun. An examination of the gun showed that one reason the gun malfunctioned was because it had been loaded with bullets of the wrong size.

[7] A jury convicted Blanche of attempted murder, resisting law enforcement, and carrying a handgun without a license. A prior handgun conviction was used to elevate his handgun charge to a Class C felony. Blanche was also found to be an habitual offender. The court imposed consecutive sentences of forty-five years for attempted murder, enhanced by thirty years for his habitual offender status, eight years for carrying a handgun without a license, and one year for resisting law enforcement, for an aggregate sentence of eighty-four years.

[8] In Blanche's direct appeal to the Supreme Court, he raised the following issues: (1) sufficiency of the evidence to support his convictions; (2) improper jury instruction on the specific intent required for an attempted murder conviction; (3) whether the trial court judge should have recused himself; and (4) whether his sentence was manifestly unreasonable. The Supreme Court affirmed Blanche's conviction and sentence. Blanche, 690 N.E.2d at 711.

[9] On the sufficiency issue, the Supreme Court summarized the evidence of Blanche's specific intent to kill as follows:

At Appellant's trial, two eyewitnesses testified that Appellant pointed the gun directly at Reed, that Appellant said he was going to kill Reed, and that Appellant pulled the trigger several times, and discharged the gun in close proximity to Reed. In view of this evidence, Appellant's argument that there is no direct or circumstantial evidence that he intended to kill Reed fails. Not only was there evidence that Appellant expressly stated he would kill Reed, Appellant's actions manifested that intent when he aimed and fired the gun in Reed's direction. See Taylor v. State, 681 N.E.2d 1105, 1111 (Ind.1997) (intent to commit murder may be inferred from the intentional use of a deadly weapon in a manner likely to cause death). Appellant's intention was also demonstrated by his repeated, though mostly unsuccessful, attempts to fire the gun at Reed. See Parks v. State, 513 N.E.2d 170, 171 (Ind.1987). That Appellant's aiming and shooting the gun directly at Reed was a substantial step toward the killing is obvious.

Id. at 712.

[10] And on the issue of instructional error, the Supreme Court reviewed the trial court's decision to give the following instruction:

The crime of Murder is defined by statute as follows:

A person who knowingly kills another human being commits Murder, a Felony.

A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime.

To convict the defendant of Attempted Murder, the State must prove each of the following elements:

1. the defendant

2. knowingly

3. with intent to kill

4. engaged in conduct

5. which was a substantial step toward the commission of the crime of Murder which is to knowingly kill another human being.

If the State fails to prove each of these elements, you should find the defendant not guilty.

If the State does prove each of these elements beyond a reasonable doubt, you should find the defendant guilty of the crime of Attempt[ed] Murder, a Class A Felony.

Id. at 713 n.1. Blanche's counsel did not object to the instruction.

[11] The Supreme Court agreed with Blanche that the attempted murder instruction was defective under Spradlin v. State, 569 N.E.2d 948 950 (Ind. 1991), because it did not adequately instruct the jury that it must find that Blanche intended to kill Reed. Blanche, 690 N.E.2d at 713. However, the Court found that Blanche was not entitled to relief under a fundamental error argument because his defense was one of innocence and mistaken identity, not intent to kill Reed. Id. The Court cited cases which hold that, “[w]here, for instance, the primary issue at trial was not the defendant's intent, but the defendant's identity, we have found no fundamental error.” Id. Because Blanche's defense strategy was mistaken identity he had not established fundamental error based on the defective instruction. Id.

[12] On the issue of recusal, Blanche argued that the judge committed reversible error when he denied a last minute motion for change of judge on the morning of Blanche's sentencing hearing. Blanche's motion alleged that he was linked to membership in a particular gang, and that the judge must recuse himself because he had earlier represented another member of the same gang. The trial judge declined to recuse himself, acknowledging that he had represented a purported gang member, but explaining that his representation of the other person was on a federal weapon possession charge, unrelated to gang activity. The Supreme Court affirmed the trial judge's decision not to recuse himself, concluding that “the facts recited by [Blanche's] counsel do not support a rational inference of bias or prejudice.” Id. at 714.

[13] Blanche also argued that his sentence was manifestly unreasonable. However, the Supreme Court held that the trial court found two valid aggravating factors; namely, Blanche's criminal history and his recent and repeated violation of probation. Id. at 716. The Court found that no mitigating factors were “compelled in this record.” Id.

[14] On June 7, 2019, Blanche filed a petition for post-conviction relief. In his petition, Blanche alleged that his trial counsel was ineffective for failing to object to the faulty attempted murder instruction. He also alleged that trial counsel was ineffective regarding his sentence by failing to object because the same prior conviction was used to support his habitual offender allegation and elevate his handgun penalty. He further claimed counsel was ineffective by failing to object to consecutive sentencing, asserting that the aggregate sentence was greater than the allowable maximum under the consecutive sentencing statute for convictions arising out of a single episode of criminal conduct. See Ind. Code § 35-50-1-2(a) (1994).

[15] The post-conviction court denied Blanche's claim of ineffective assistance of counsel based on the faulty attempted murder instruction. The court relied on the Supreme Court's analysis in his direct appeal, which found no fundamental error, because his central defense was identity not intent. Appellant's App. Vol. II, pp. 13-14. The court denied Blanche's claim as to the dual use of his prior conviction to support the habitual offender allegation and elevation of his handgun penalty, determining that the attempted murder sentence was enhanced by the prior conviction under the habitual offender statute, and the handgun offense was elevated by the prior offense. Id. at 14 (citing Anderson v. State, 774 N.E.2d 906, 913-14 (Ind. Ct. App. 2002)).

[16] However, the post-conviction court found that Blanche had met his burden as to his aggregate sentence. Indiana Code section 35-50-1-2(a) provided that consecutive sentences arising out of an episode of criminal conduct “shall not exceed the presumptive 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 presumptive sentence for Murder at that time was forty years. Ind. Code § 35-50-2-3(a) (1994). The post-conviction court corrected Blanche's sentence and ordered his conviction for carrying a handgun without a license to be served concurrently with his sentence for attempted murder.

[17] To summarize, the post-conviction court imposed a forty-five year sentence for attempted murder, enhanced by thirty years for his habitual offender status, and ordered the eight-year sentence for his handgun conviction to be served concurrently. Including his one-year consecutive sentence for his Class A misdemeanor resisting law enforcement sentence, his aggregate sentence was reduced to seventy-six years. Otherwise, the post-conviction court denied Blanche relief. Blanche now appeals.

Discussion and Decision

I. Ineffective Assistance of Counsel Claim

[18] “[P]ost-conviction proceedings do not grant a petitioner a ‘super-appeal’ but are limited to those issues available under the Indiana Post-Conviction Rules.” Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010), trans. denied. “In post-conviction proceedings, the petitioner bears the burden of establishing his claims by a preponderance of the evidence.” Isom v. State, 170 N.E.3d 623, 632 (Ind. 2021). “Where, as here, the petitioner is appealing from a negative judgment denying post-conviction relief, he must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision.” Id. (internal quotation marks and citation omitted).

[19] “To succeed before the fact finder on his claim of ineffective assistance of counsel, the defendant needed to prove by a preponderance of the evidence not only that his trial counsel's representation fell below an objective standard of reasonableness, but also that his [counsel's] errors were so serious as to deprive him of a fair trial because of a reasonable probability that, but for counsel's unprofessional errors, the result would have been different.” Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

[20] Blanche contends that his trial counsel was ineffective for failing to object to the faulty instruction defining attempted murder. The post-conviction court's decision on this issue rested on our Supreme Court's analysis of this issue in Blanche's direct appeal. Appellant's App. Vol. II, pp. 13-14. Blanche's counsel did not object and the instruction was defective. However, Blanche was required to show how counsel's deficient performance prejudiced his defense. He has failed to prove prejudice for two independent reasons.

[21] First, as the Supreme Court noted, Blanche's defense was mistaken identity, meaning he was not the shooter. Blanche, 690 N.E.2d at 713. His post-conviction argument centers on a defective instruction about intent. Appellant's App. Vol. II, pp. 93-94. But as the Supreme Court noted in his direct appeal, fundamental error, and therefore ineffective assistance of counsel, Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014), does not result from a flawed jury instruction that does not go to the heart of a defendant's defense. See Blanche, 690 N.E.2d at 713. Though counsel should have objected to the jury instruction, Blanche has not established prejudice because there was no harm to the core of his defense, mistaken identity. Thus, Blanche is not entitled to relief on this reason.

[22] Second, the evidence of Blanche's specific intent to kill Reed was overwhelming. He drew a gun, pointed it at Reed, and said he was going to kill him. He repeatedly pulled the trigger. “[F]iring a gun in the direction of an individual is substantial evidence from which a jury may infer intent to kill.” Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008). Moreover, Blanche had a motive to kill Reed. He was upset that Reed's wife had testified against him in another case and confronted Reed about it immediately prior to the shooting. Thus, Blanche is not entitled to relief on this reason.

[23] Blanche cites Clark v. State, 668 N.E.2d 1206 (Ind. 1996) and Majors v. State, 735 N.E.2d 334 (Ind. Ct. App. 2000), in support of his claim. However, those cases do not help his argument. Clark involved a claim of ineffective assistance of counsel for failure to object to an instruction that was defective under Spradlin. But prejudice was found in that case because the central issue was the specific intent to kill and identity was not at issue. Clark, 668 N.E.2d at 1210. And in Majors, both identity and intent were the key issues at trial. Majors’ conviction was reversed due to the Spradlin error because his intent was a central issue at trial. Majors, 735 N.E.2d at 339. Thus, because identity and not intent was the central issue in Blanche's trial, we find these cases inapposite and conclude that the post-conviction court did not err in denying Blanche's claim.

II. Post-Conviction Court's Correction of Sentence

[24] Blanche argues that the post-conviction court erred when it corrected his sentence. Sentencing decisions lie within the sound discretion of the trial court. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). A trial court abuses its discretion if its “decision is clearly against the logic and effects of the facts and circumstances before it” or if it “misinterprets or misapplies the law.” Bennett v. State, 862 N.E.2d 1281, 1286 (Ind. Ct. App. 2007).

[25] Blanche contends that the consecutive-sentencing statute limits his sentence for attempted murder to a term of forty years before adding the habitual offender enhancement. And he maintains his argument that his prior conviction could not be used to both establish his habitual offender status and elevate his handgun charge.

[26] Once the post-conviction court corrected Blanche's sentence and ordered the felony handgun conviction to be served concurrently, Indiana Code section 35- 50-1-2(a) was no longer applicable because there were no consecutive felony sentences. That section, as written in 1994, provided that

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 presumptive 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.

Blanche's most serious felony conviction was for attempted murder. At the time of Blanche's original sentencing, murder had a presumptive sentence of forty years. I.C. § 35-50-2-3(a). But the sentencing range for murder at the time was a term of between thirty and sixty years. Id. Thus, the court did not abuse its discretion where Blanche's forty-five year sentence was within the lawful sentencing range for attempted murder prior to the addition of the thirty-year habitual offender enhancement. And his felony handgun conviction was ordered to be served concurrently.

[27] Additionally, the post-conviction court did not err by failing to vacate the habitual offender enhancement. When correcting Blanche's sentence, the post-conviction court acknowledged the Supreme Court's opinion in Ross v. State, 729 N.E.2d 113, 116 (Ind. 2000), which held that “[t]he trial court should not use an already enhanced handgun conviction as the basis for further enhancement under the general habitual offender statute.” Ross’ holding was not a problem in Blanche's situation because the general habitual offender statute was applied to Blanche's murder conviction, like was done in Anderson.

[28] In Anderson, the defendant was convicted of murder, possession of a firearm by a serious violent felon, and intimidation. Anderson argued that the trial court erred “by enhancing his total sentence under the habitual offender statute, where one of the predicate offenses establishing Anderson was an habitual offender was also used to convict him of possession of a firearm by a serious violent felon.” 774 N.E.2d at 913. We observed “that a defendant convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the defendant was a serious violent felon.” Id. (internal quotations omitted).

[29] But, in Anderson, “[the] sentence for possession of a firearm by a serious violent felon was not enhanced under the habitual offender statute; it was his murder sentence that was enhanced.” Id. And we reiterated that “ ‘[i]n the case of a habitual offender proceeding following multiple convictions, the jury finding of habitual offender status is not linked to any particular conviction.’ ” Id. at 913-14 (emphasis added) (quoting Greer v. State, 680 N.E.2d 526, 527 (Ind. 1997)). “ ‘[T]he penal consequence of a habitual offender finding has no independent status as a separate crime or punishment and exists only as an integral part of a sentence imposed for a specific independent felony ․’ ” Id.

[30] Blanche's original sentencing was in 1995, and his direct appeal concluded in 1998. Although “the statute to be applied when arriving at a proper criminal penalty is that which was in effect at the time the crime was committed[,]” Wallace v. State, 753 N.E.2d 568, 569 (Ind. 2001), Blanche seeks relief under 2001 legislative amendments ¹ to the habitual offender statute, Ind. Code § 35-50-2-8(b)(1) (2001). Although remedial statutes can be applied retroactively, the 2001 amendment to the habitual offender statute was part of the “dialogue between the courts and the Legislature on the permissibility of recidivist enhancements[.]” Mills v. State, 868 N.E.2d 446, 451 (Ind. 2007). The Supreme Court explained “that both the courts and the Legislature seem to be operating in this arena according to the same general rule that, to repeat, absent explicit legislative direction, a sentence imposed following conviction under a ‘progressive penalty statute’² may not be increased further under either the general habitual offender statute or a specialized habitual offender statute.” 868 N.E.2d at 451. Thus, even if the amendments could be applied to Blanche's convictions he would not be entitled to relief. Blanche did not receive a double enhancement for his handgun conviction. The general habitual offender enhancement was applied to his attempted murder conviction and the progressive penalty enhancement was applied to his handgun conviction. Thus, we conclude that the post-conviction court did not err.

Conclusion

[31] To summarize, we conclude that the post-conviction court did not err by finding that Blanche suffered no prejudice from his counsel's failure to object to a defective instruction on attempted murder. And the post-conviction court did not err by declining to vacate Blanche's habitual offender enhancement when correcting Blanche's sentence.

[32] Affirmed.

FOOTNOTES

1.   Indiana Code section 35-50-2-8 as modified in 2001 reads as follows:(a) Except as otherwise provided in this section, the state may seek to have a person sentenced as a habitual offender for any felony by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated two (2) prior unrelated felony convictions.(b) The state may not seek to have a person sentenced as a habitual offender for a felony offense under this section if:(1) the offense is a misdemeanor that is enhanced to a felony in the same proceeding as the habitual offender proceeding solely because the person has a prior unrelated conviction;(2) the offense is an offense under IC 9–30–10–16 or IC 9–30–10–17 [certain motor vehicle offenses]; or(3) all of the following apply:(A) The offense is an offense under IC 16–42–19 [Indiana Legend Drug Act] or IC 35–48–4 [certain controlled substance offenses].(B) The offense is not listed in section 2(b)(4) [offenses for which the sentence cannot be suspended below the minimum] of this chapter.(C) The total number of unrelated convictions that the person has for:(i) dealing in or selling a legend drug under IC 16–42–19–27;(ii) dealing in cocaine or a narcotic drug (IC 35–48–4–3) [6];(iii) dealing in a schedule I, II, III controlled substance (IC 35–48–4–2)(iv) dealing in a schedule IV controlled substance (IC 35–48–4–3); and(v) dealing in a schedule V controlled substance (IC 35–48–4–4); does not exceed one (1).

2.   “Under a progressive penalty statute, ‘the seriousness of a particular charge (with a correspondingly more severe sentence) can be elevated if the person charged has previously been convicted of a particular offense.’ ” Mills, 868 N.E.2d at 448 n.4 (quoting State v. Downey, 770 N.E.2d 794, 796 (Ind. 2002)).

Baker, Senior Judge.

Judges Pyle and Weissmann concur. Pyle, J., and Weissmann, J., concur.