A defense attorney’s failure to raise the consecutive sentencing limitation prejudiced his client, the majority of a Court of Appeals panel ruled, reversing denial of post-conviction relief for a man convicted of multiple burglaries. The court remanded for resentencing to trim six years off a 28-year prison term.
In April 2007, Gary A. Gallien and two accomplices drove a stolen vehicle to a Floyds Knobs Goodwill store. They broke in, stealing $71 and a handcart. Minutes later, they drove to nearby Galena, smashing the vehicle into Sammy-O’s Tavern and hauling away an automatic teller machine. Gallien was arrested a short time later.
A Floyd Circuit jury convicted Gallien of two counts of Class C felony burglary, two counts of Class D felony theft and one count of Class D felony receiving stolen property. Gallien was sentenced to an aggregate 28 years in prison – eight years each served consecutively on the burglary counts, enhanced by 12 years for his habitual offender status. He also received a concurrent sentence of three years for receiving stolen property.
Judge Michael Barnes wrote for the majority joined by Judge Elaine Brown that an analysis of whether the burglaries could be described without referring to each other, as the post-conviction court did, was not dispositive of whether the crimes constituted a single episode of criminal conduct, nor was the fact that two businesses were burglarized.
“Instead, we focus on the small distance between the two burglaries, the short amount of time between them, and the apparent scheme that tied them together. Based on that analysis, we conclude that the two burglaries were ‘closely related in time, place, and circumstance,’” Barnes wrote in Gary A. Gallien v. State of Indiana, 22A01-1402-PC-50.
“As a result, the consecutive sentencing limitation of Indiana Code Section 35-50-1-2 is applicable, and the maximum consecutive sentence possible for the two burglaries was ten years rather than the sixteen years imposed by the trial court. Gallien was prejudiced by his appellate counsel’s failure to raise the issue.”
Judge Cale Bradford wrote in dissent he would affirm the post-conviction court.
“It is of note that this court has issued a large number of seemingly inconsistent opinions regarding what constitutes a single episode of criminal conduct, some of which would tend to indicate that Gallien’s actions might be found to constitute a single episode of criminal conduct on appeal. As such, I must agree with the majority that the question of whether Gallien’s actions constituted a single episode of criminal conduct, which would limit his potential sentence to ten years rather than the sixteen imposed by the trial court, was significant and obvious from the face of the record,” Bradford wrote.
“However, even if appellate counsel’s failure to raise this issue on direct appeal amounted to deficient performance, I do not believe that the post-conviction record demonstrates that Gallien established that he was prejudiced by the allegedly deficient performance.”