Michael Dowdell v. State of Indiana, 2017 Ind. App. LEXIS 81

In 1995 Dowdell participated in a home invasion during which two victims were killed and one survived; he was convicted of two counts of felony murder, attempted murder, robbery, and criminal confinement and sentenced to 160 years.
The Indiana Supreme Court in Dowdell I found trial counsel ineffective and remanded for the post-conviction court to assess prejudice and for resentencing; Dowdell was resentenced to an aggregate executed term of 100 years with consecutive murder terms.
At resentencing the trial court imposed presumptive or below-presumptive sentences on individual counts, found aggravating and mitigating circumstances to be in balance, then identified an additional, separate aggravator — the violent nature of the murders — and used that to order consecutive murder sentences.
Dowdell appealed the consecutive sentences in prior appeals and also filed a motion to correct erroneous sentence; various appeals rejected his claims on procedural or merit grounds.
The post-conviction court granted leave for a successive petition in 2013; Dowdell argued his appellate counsel in Dowdell II was ineffective for not arguing, under Marcum, that consecutive sentences cannot follow when aggravators and mitigators are balanced and individual sentences are presumptive.
After an evidentiary hearing the post-conviction court rejected ineffective-assistance claims; this appeal challenges that denial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellate counsel was ineffective for failing to argue Marcum to overturn consecutive sentences	Dowdell: appellate counsel should have relied on Marcum to contend consecutive sentences are prohibited where individual sentences are presumptive and aggravators/mitigators are balanced	State: trial court identified an additional, separate aggravator (violent nature) not previously balanced, so Marcum does not apply; counsel’s omission was not deficient or prejudicial	Court affirmed: counsel not ineffective because the additional aggravator legitimately tipped the balance and Marcum would not have succeeded

Dowdell v. State, 720 N.E.2d 1146 (Ind. 1999) (supreme court decision finding trial counsel ineffective and remanding for resentencing/post-conviction review)
Marcum v. State, 725 N.E.2d 852 (Ind. 2000) (holding that when a court finds aggravators and mitigators in balance and identifies no other aggravator, consecutive sentences cannot be imposed)
Gleaves v. State, 859 N.E.2d 766 (Ind. Ct. App. 2007) (distinguishing Marcum where the trial court later identified an additional aggravator, tipping the balance to justify consecutive sentences)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part test for ineffective assistance of counsel: deficient performance and prejudice)