Timmy T. Zieman v. State of Indiana
2013 Ind. App. LEXIS 298
| Ind. Ct. App. | 2013Background
- Timmy T. Zieman fled police in his pickup, later drove into Sergeant John Allendorf’s patrol car at high speed, severely injuring Allendorf.
- Zieman was tried and convicted (guilty but mentally ill) of multiple offenses; convictions entered for attempted murder (30 years), resisting law enforcement causing serious bodily injury (4 years), and misdemeanors—aggregate 35 years.
- The resisting count was elevated to a Class C felony based on the ‘‘serious bodily injury’’ Allendorf suffered when Zieman’s vehicle struck the patrol car.
- Zieman petitioned for post-conviction relief (PCR), claiming trial and appellate counsel were ineffective for not arguing a double jeopardy violation: the same evidence (the crash) supported both the attempted murder substantial-step element and the serious-bodily-injury enhancement.
- The PCR court denied relief; the Court of Appeals reversed, finding a reasonable possibility the jury used the same facts to prove both elements, creating a double jeopardy violation.
- Remedy: court ordered the resisting conviction reduced from Class C to Class D and resentenced that count to 1.5 years, yielding an aggregate executed sentence of 33.5 years.
Issues
| Issue | Zieman's Argument | State's Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for failing to raise double jeopardy challenge to the serious-bodily-injury enhancement of resisting law enforcement | Counsel was ineffective because the same evidentiary facts (Zieman’s act of crashing into Allendorf) could have been used to prove both the attempted murder substantial-step and the resisting enhancement | The crimes have distinct statutory elements and the facts supporting fleeing from Trooper Roa differ from the Allendorf collision; no reasonable possibility the jury used the same harm to prove both | Held for Zieman: there was a reasonable possibility the jury used the same evidence for both elements; trial counsel was ineffective for failing to raise the issue |
| Whether the Richardson statutory-elements test bars the convictions | N/A (Zieman’s argument focused on actual-evidence/common-law enhancement rules) | The statutory elements differ (attempt requires intent to kill; resisting requires flight after identification), so Richardson statutory-elements test not violated | Statutory-elements test not violated |
| Whether the Richardson actual-evidence test bars the convictions | Zieman argued the actual evidence (crash) may have been used for both offenses | State argued multiple distinct acts (fleeing from Trooper Roa vs. crash into Allendorf) supported separate elements | Court found actual-evidence test analysis supported a reasonable possibility of overlap as charged/argued, producing double jeopardy problem for enhancement |
| Appropriate remedy for double jeopardy violation | Vacate or reduce the enhancement so convictions do not punish same harm | Reduce or vacate one conviction to eliminate overlap while respecting trial court’s sentencing choices | Reduced the resisting conviction from Class C to Class D and ordered 1.5-year sentence on that count; aggregate sentence adjusted to 33.5 years |
Key Cases Cited
- Richardson v. State, 717 N.E.2d 32 (Ind. 1999) (establishes statutory-elements and actual-evidence tests for Indiana double jeopardy)
- Spivey v. State, 761 N.E.2d 831 (Ind. 2002) (clarifies actual-evidence analysis; double jeopardy not violated if overlap establishes only some, not all, elements)
- Guyton v. State, 771 N.E.2d 1141 (Ind. 2002) (recognizes common-law/ statutory-construction rules preventing enhancement based on same behavior/harm punished elsewhere)
- Pierce v. State, 761 N.E.2d 826 (Ind. 2002) (discusses Justice Sullivan’s categories and remedying double jeopardy by reducing/vacating convictions)
- Boss v. State, 964 N.E.2d 931 (Ind. Ct. App. 2012) (applies reasonable-possibility standard to determine whether same facts were used to elevate multiple convictions)
- Smith v. State, 872 N.E.2d 169 (Ind. Ct. App. 2007) (finds reasonable possibility that same bodily injury enhanced two convictions)
- Ben-Yisrayl v. State, 729 N.E.2d 102 (Ind. 2000) (adopts Strickland standard for ineffective assistance claims)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (establishes two-part ineffective assistance test: deficiency and prejudice)
- McCann v. State, 854 N.E.2d 905 (Ind. Ct. App. 2006) (discusses remedies when double jeopardy found; reduce or vacate convictions while respecting sentencing findings)