Brent D. Mullis v. State of Indiana (mem. dec.), 03A04-1602-PC-203

Mullis was charged with two class C burglary counts (La Mode Hair Salon and Yee Kee Restaurant) after glass fragments and a shoe impression linked his shoes to the La Mode burglary and eyewitness/K‑9 evidence linked him to the Yee Kee incident.
Trial proceeded October 30–31, 2007; Mullis was absent from trial, convicted on both burglary counts and found to be an habitual offender; sentencing resulted in an aggregate 28‑year term.
Mullis filed a petition for post‑conviction relief (PCR) alleging, among other claims, ineffective assistance of counsel because trial counsel failed to move to sever the two burglary counts.
At the PCR evidentiary hearing, trial counsel (Nowak) testified he made a strategic decision not to seek severance to avoid giving the State two trials and to present a unified defense; he also said he did not discuss severance with Mullis because Mullis was not available.
The PCR court denied relief, concluding Mullis failed to show prejudice from counsel’s decision given substantial independent evidence linking Mullis to each burglary and that severance would not necessarily have prevented consecutive sentencing.
The Court of Appeals affirmed, applying Strickland’s ineffective assistance framework and concluding Mullis failed to meet his burden to prove prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel was ineffective for not moving to sever the two burglary counts	Mullis: counsel should have sought severance as a matter of right (charges joined based on similar character) and severance would have prevented cross‑admissibility of evidence and likely reduced sentencing exposure	State/Nowak: counsel made a reasonable strategy decision — joinder was proper as crimes were connected by time, location, and modus operandi; separate trials would have given State two chances and not guaranteed concurrent sentences	Court affirmed denial of PCR: even assuming deficient performance, Mullis failed to show prejudice because each burglary was supported by independent, substantial evidence and severance would not necessarily have altered sentencing

Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard requiring deficient performance and prejudice)
Maymon v. State, 870 N.E.2d 523 (joinder vs. severance where multiple burglaries over time were not part of single scheme)
Wilkerson v. State, 728 N.E.2d 239 (modus operandi test for joinder; counsel’s failure to move to sever can be ineffective where no strategy explanation)
Reed v. State, 856 N.E.2d 1189 (PCR is narrow remedy; issues known at trial/appeal waived)
French v. State, 778 N.E.2d 816 (application of Strickland in Indiana PCR context)
Clark v. State, 695 N.E.2d 999 (declining to reverse on ineffective assistance for failure to seek severance where evidence on each count was substantial)