The Indiana Supreme Court granted transfer May 2 to a case in which the defendant was denied post-conviction relief. In Roderick Lee v. State of Indiana, No. 27A04-0705-PC-257, Lee filed a petition for relief asserting he received ineffective assistance from his trial and appellate counsel.
The Indiana Court of Appeals rejected Lee’s arguments that his trial and appellate counsel – the same attorney – was ineffective because the attorney failed to argue that entering judgments on Lee’s convictions of burglary and attempted robbery violate the Indiana Constitution’s double jeopardy clause.
However, the appellate court grappled with the proper application of the actual evidence test in terms of Lee’s ineffective assistance of counsel claim and if counsel can be considered ineffective when a literal application of the actual evidence test yields no double jeopardy violation, but a more relaxed application would yield a violation.
The Indiana Court of Appeals found there was a reasonable possibility the jury used the same evidentiary facts to establish the elements of burglary and attempted robbery; however, there isn’t a violation of double jeopardy based on a literal application of the actual evidence test. The appellate court ruled Lee didn’t prove he received ineffective trial or appellate assistance.