                                                                            FILED
                                                                       Dec 01 2016, 8:23 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Jeffrey A. Baldwin                                        Gregory F. Zoeller
      Tyler D. Helmond                                          Attorney General of Indiana
      Indianapolis, Indiana
                                                                Jesse R. Drum
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Corey Middleton,                                          December 1, 2016
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                32A01-1603-PC-592
              v.                                                Appeal from the Hendricks
                                                                Superior Court
      State of Indiana,                                         The Honorable Rhett Stuard,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                32D02-1502-PC-3



      Altice, Judge.


                                                Case Summary


[1]   Corey Middleton appeals from the denial of his petition for post-conviction

      relief. He asserts that the post-conviction court erred in rejecting his claim of

      ineffective assistance of trial counsel.


      Court of Appeals of Indiana | Opinion 32A01-1603-PC-592 | December 1, 2016                Page 1 of 16
[2]   We affirm.


                                        Facts & Procedural History


[3]   On December 1, 4, and 5, 2000, undercover officers met Middleton in a van in

      a Kroger parking lot in Brownsburg and purchased cocaine and ecstasy from

      him. On the third day, Middleton showed the officers his “baby,” a silver .380

      caliber handgun that he pulled from his waistband. Middleton v. State, No.

      32A04-0308-CR-412, slip op. at 3 (Ind. Ct. App. June 29, 2004). Middleton told

      the officers that the handgun might be for sale later. The officers left the van

      and signaled to other officers to move in. After Middleton was arrested, officers

      found the handgun under the seat where Middleton had been sitting.


[4]   On December 6, 2000, Middleton was charged with Class A felony dealing in

      cocaine, two counts of Class B felony dealing in a controlled substance, four

      counts of drug possession, and possession of a firearm by a serious violent felon

      (SVF). Middleton initially requested that counsel be appointed, but a month

      later, he retained his own attorney, Robert Williams. During the last pre-trial

      conference on May 2, 2001, Middleton sought to have Williams replaced.

      Later, during the same pre-trial hearing, Williams requested to withdraw as

      Middleton’s attorney, citing lack of payment by Middleton. Given that there

      were only three weeks until the scheduled trial date, the trial court denied both

      requests.


[5]   On May 23, 2001, Middleton failed to appear for his jury trial and was tried in

      absentia. At the start of the trial, Williams informed the court that he had paged

      Court of Appeals of Indiana | Opinion 32A01-1603-PC-592 | December 1, 2016   Page 2 of 16
      and called Middleton the night before but did not talk to him. Williams also

      explained:


              [Middleton] was aware this was the final trial date. . . . And he
              was advised this was a first choice jury trial and the Court denied
              my motion to withdraw so I talked to him later that day or the
              following day with the new plea offer from the State. He refused
              it and I said that was the last day. If he didn’t accept that we’d be
              going to trial on the 23rd. I’ve had no further contact with him,
              Your Honor.


      Petitioner’s Exhibit 1, Transcript at 52-53.1 The jury trial proceeded.


[6]   During voir dire, Williams posed the following question to prospective jurors:

              I’d ask you, all of you the one question and that is Corey
              Middleton happens to be a Negro, an African American or Black
              whatever term is politically correct these days, so I need to ask all
              of you and remember you’re under oath and please don’t take
              that as an affront. I don’t mean it as an affront. But I still think
              in this country there are some racial problems. So my job is to
              make sure first of all if Corey Middleton, the black man, was
              sitting there, would any of you have any problems forgetting he’s
              black or forgetting he’s white or Indian or Chinese or whatever[?]
              Does race make any difference to you in these proceedings
              because if it does we need to know that right now[?]


      Id. at 92. After a jury was selected, the State presented its evidence. To prove

      Middleton was an SVF, the State offered into evidence a certified copy of




      1
        Additional comments by Williams indicate that he last spoke with Middleton the day of or the day after the
      final pre-trial conference that was held on May 2, 2001.

      Court of Appeals of Indiana | Opinion 32A01-1603-PC-592 | December 1, 2016                      Page 3 of 16
      Middleton’s Michigan criminal history that showed he had a prior felony

      conviction for possession with intent to deliver cocaine (under thirty grams).

      Williams objected, arguing that Middleton was not there to confirm or dispute

      its accuracy. The trial court overruled the objection. At the conclusion of the

      evidence, the jury found Middleton guilty as charged. The trial court merged

      several of the drug offenses due to double jeopardy concerns.


[7]   In 2002, Middleton was located in Atlanta, Georgia. Middleton was arrested

      and returned to Indiana. On May 27, 2003, the trial court sentenced him to an

      aggregate forty-year term in the Department of Correction.2 Middleton was

      appointed counsel to pursue a direct appeal. This court affirmed Middleton’s

      SVF conviction, but ordered that the drug possession charges be vacated rather

      than simply merged. See Middleton, slip op. at 130.


[8]   On February 9, 2015, Middleton filed the instant petition for post-conviction

      relief (PCR),3 in which he challenged his trial counsel’s performance.

      Specifically, Middleton alleged that his trial counsel was ineffective for (1)

      failing to adequately investigate,4 (2) failing to move to bifurcate the SVF

      offense from the drug offenses; (3) referring to him as a “Negro” during voir

      dire; (4) failing to object to the admission of evidence concerning a prior drug



      2
          Middleton was represented at the sentencing hearing by court-appointed counsel.
      3
       Middleton filed his first PCR petition, pro se, on November 1, 2004. In his petition he alleged ineffective
      assistance of both his trial and appellate counsel. He was eventually appointed a public defender. The
      action, however, was dismissed in 2007 for “lack of action.” Transcript at 32.
      4
          On appeal, Middleton does not advance any argument concerning failure to investigate.


      Court of Appeals of Indiana | Opinion 32A01-1603-PC-592 | December 1, 2016                        Page 4 of 16
      dealing conviction, and (5) failing to communicate to him a plea offer.5 The

      post-conviction court held a hearing on November 20, 2015. Middleton did not

      call Williams to testify. On February 22, 2016, the post-conviction court

      entered its findings of fact and conclusions of law denying Middleton’s PCR

      petition. Middleton now appeals. Additional facts will be provided as

      necessary.


                                              Discussion & Decision


[9]   In a post-conviction proceeding, the petitioner bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Bethea v. State, 983

      N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction

      relief, the petitioner stands in the position of one appealing from a negative

      judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In

      order to prevail, the petitioner must demonstrate that the evidence as a whole

      leads unerringly and unmistakably to a conclusion opposite the post-conviction

      court’s conclusion. Id. Although we do not defer to a post-conviction court’s

      legal conclusions, we will reverse its findings and judgment only upon a

      showing of clear error, i.e., “that which leaves us with a definite and firm

      conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729

      N.E.2d 102, 106 (Ind. 2000)).




      5
        In 2002 Williams was disbarred for serial neglect of several of his clients’ legal affairs and for refusing to
      meaningfully participate in the Disciplinary Commission’s prosecution. See In re Williams, 764 N.E.2d 613
      (Ind. 2002).

      Court of Appeals of Indiana | Opinion 32A01-1603-PC-592 | December 1, 2016                            Page 5 of 16
[10]   A petitioner will prevail on a claim of ineffective assistance of counsel only

       upon a showing that counsel’s performance fell below an objective standard of

       reasonableness and that the deficient performance prejudiced the petitioner.

       Bethea, 983 N.E.2d at 1138. To satisfy the first element, the petitioner must

       demonstrate deficient performance, which is “representation that fell below an

       objective standard of reasonableness, committing errors so serious that the

       defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id.

       (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)).


[11]   To satisfy the second element, the petitioner must show prejudice, which is “a

       reasonable probability that, but for counsel’s errors, the result of the proceeding

       would have been different.” Id. at 1139. “A reasonable probability is one that

       is sufficient to undermine confidence in the outcome.” Kubsch v. State, 934

       N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington, 466 U.S. 668,

       694 (1984)). Because a petitioner must prove both deficient performance and

       prejudice in order to prevail on a claim of ineffective assistance of counsel, the

       failure to prove either element defeats such a claim. See Young v. State, 746

       N.E.2d 920, 927 (Ind. 2001).


[12]   There is a strong presumption that counsel rendered adequate service. Bethea,

       983 N.E.2d at 1139. “We afford counsel considerable discretion in choosing

       strategy and tactics, and ‘[i]solated mistakes, poor strategy, inexperience, and

       instances of bad judgment do not necessarily render representation ineffective.’”

       State v. Hollin, 970 N.E.2d 147, 151 (Ind. 2012) (quoting Timberlake v. State, 753

       N.E.2d 591, 603 (Ind. 2001)).

       Court of Appeals of Indiana | Opinion 32A01-1603-PC-592 | December 1, 2016   Page 6 of 16
                                       Communication of Plea Offer


[13]   The Sixth Amendment right to the effective assistance of counsel extends to

       plea negotiations. Missouri v. Frye, 132 S.Ct. 1399, 1405 (2012). As the U.S.

       Supreme Court recognized,


               [t]he reality is that plea bargains have become so central to the
               administration of the criminal justice system that defense counsel
               have responsibilities in the plea bargain process, responsibilities
               that must be met to render the adequate assistance of counsel that
               the Sixth Amendment requires in the criminal process at critical
               stages.


       Id. at 1407. With this reality in mind, the Supreme Court thus held that, as a

       general rule, “defense counsel has the duty to communicate formal offers from

       the prosecution to accept a plea on terms and conditions that may be favorable

       to the accused.” Id. at 1408; see also Woods v. State, 48 N.E.3d 374, 381 (Ind. Ct.

       App. 2015).


[14]   Counsel’s effectiveness at the plea stage is reviewed under the two-part test set

       out in Strickland. It has been held that failure to communicate a plea agreement

       and its terms and conditions constitutes deficient performance. See Frye, 132

       S.Ct. at 1408; Woods, 48 N.E.3d at 381. As held by this court in Dew v. State,

       843 N.E.2d 556, 571 (Ind. Ct. App. 2006), trans. denied, prejudice is established

       when there is a reasonable probability that the petitioner would have accepted

       the plea offer that was not communicated to him by defense counsel. As more

       recently stated in Frye, the petitioner must establish that he would have

       accepted the plea if it had been communicated, that the prosecution would have
       Court of Appeals of Indiana | Opinion 32A01-1603-PC-592 | December 1, 2016   Page 7 of 16
       adhered to the plea, and that the trial court would have accepted the plea. 132

       S.Ct. at 1411.


[15]   Here, Middleton claims that Williams failed to communicate to him a plea

       agreement that called for Middleton to plead guilty to one count of Class A

       felony dealing in cocaine greater than three grams with the remaining counts to

       be dismissed and for sentencing to be left to the trial court’s discretion.

       Middleton further claims that he would have accepted the plea agreement had it

       been communicated to him.


[16]   The evidence before the post-conviction court was that Williams appeared at

       Middleton’s jury trial and Middleton did not, having apparently already fled to

       Georgia. In explaining Middleton’s absence, Williams stated:


               [Middleton] was aware this was the final trial date. He was at
               the Pre-Trial last time we were here [i.e., May 2, 2001]. . . . And
               he was advised this was a first choice jury trial and the Court
               denied my motion to withdraw so I talked to him later that day or
               the following day with the new plea offer from the State. He refused it
               and I said that was the last day. If he didn’t accept that we’d be
               going to trial on the 23rd. I’ve had no further contact with him,
               Your Honor.


       Transcript at 52-53 (emphasis supplied). As noted by the post-conviction court:

       “Middleton had an opportunity to dispute his attorney’s statement to the Court;

       but he waived it by failing to attend his own jury trial.” Appellant’s Appendix at

       60. Likewise, Middleton did not present any evidence at the PCR hearing aside

       from his own self-serving testimony that would lead to a contrary finding.


       Court of Appeals of Indiana | Opinion 32A01-1603-PC-592 | December 1, 2016    Page 8 of 16
[17]   Further, Middleton did not call Williams to testify. It is well established that

       when counsel is not called as a witness to testify in support of a petitioner’s

       arguments, the post-conviction court may infer that counsel would not have

       corroborated the petitioner’s allegations.6 Oberst v. State, 935 N.E.2d 1250, 1254

       (Ind. Ct. App. 2010), trans. denied. The post-conviction court made such an

       inference here and we cannot say that it was error to do so. Thus, Middleton

       did not satisfy his burden of showing his counsel rendered deficient

       performance by failing to communicate a plea offer.


                                                         Bifurcation


[18]   Relying on Pace v. State, 981 N.E.2d 1253 (Ind. Ct. App. 2013), Middleton

       argues that Williams was ineffective for failing to file a motion to bifurcate the

       SVF offense from the drug offenses. The decision regarding whether to file a

       particular motion is a matter of trial strategy. Moore v. State, 872 N.E.2d 617,

       620 (Ind. Ct. App. 2007), trans. denied. “‘To prevail on an ineffective assistance

       of counsel claim based upon counsel’s failure to file motions on a defendant’s

       behalf, the defendant must demonstrate that such motions would have been




       6
         Citing Schmittler v. State, 93 N.E.2d 184, 191 (Ind. 1950), overruled in part on other grounds by State v. Lindsey,
       106 N.E.2d 230, 233 (Ind. 1952), Middleton asserts that this presumption applies only in instances where the
       petitioner “did not produce or at least make an effort to produce the testimony of the witness.” Middleton
       then points to his evidence that Williams had been disbarred over thirteen years prior to the post-conviction
       hearing and that Williams did not respond to Middleton’s request to retrieve his file. Middleton’s evidence,
       however, does not establish that he made any effort to secure Williams’s testimony at the post-conviction
       hearing. Thus, the post-conviction court was left with Middleton’s claim that he was not advised of the plea
       agreement and Williams’s direct statement made at the time of trial to the contrary. Under these
       circumstances, Schmittler does not persuade us that the post-conviction court erred in inferring that Williams
       would not have corroborated Middleton’s claim.

       Court of Appeals of Indiana | Opinion 32A01-1603-PC-592 | December 1, 2016                              Page 9 of 16
       successful.’” Id. at 621 (quoting Wales v. State, 768 N.E.2d 513, 523 (Ind. Ct.

       App. 2002), clarified on reh’g, 774 N.E.2d 116 (Ind. Ct. App. 2002), trans. denied).


[19]   We do not find the decision in Pace to be dispositive of the outcome in this case.

       In Pace, the court held that petitioner’s trial counsel was ineffective for failing to

       move to bifurcate the trial of a dealing in amphetamine charge and a charge of

       unlawful possession of a firearm by an SVF where his status as an SVF was

       based on a prior conviction for dealing in cocaine. However, the key

       component of the Pace court’s analysis was that the petitioner’s trial counsel

       should have been aware of the Supreme Court’s decision in Hines v. State, 801

       N.E.2d 634 (Ind. 2004), which was decided over nine months prior to

       petitioner’s jury trial. In Hines, the Supreme Court held that “it was error to

       refuse a defendant’s request to bifurcate a trial where there is an SVF charge

       and another unrelated felony.” The Pace court thus found that trial counsel’s

       decision not to request bifurcation was not a reasonable strategic decision in

       light of Hines and that under the circumstances, a motion to bifurcate would

       have been granted.


[20]   Here, like in Hines and Pace, Middleton was charged with an SVF offense and

       separate felony offenses. The State established Middleton’s SVF status by

       offering into evidence a certified copy of Middleton’s criminal history in

       Michigan that showed he had prior felony conviction for possession with intent

       to deliver cocaine (under thirty grams). Middleton would have us hold that in

       light of the holding in Hines, trial counsel’s failure to bifurcate amounted to

       ineffective assistance. The Hines case, however, was not decided until several

       Court of Appeals of Indiana | Opinion 32A01-1603-PC-592 | December 1, 2016   Page 10 of 16
       years after Middleton’s trial. It is well settled that “[f]or purposes of ineffective

       assistance of counsel claims, the law requires consideration of legal precedent

       available to counsel at the time of his representation of the accused, and counsel

       will not be deemed ineffective for not anticipating or initiating changes in the

       law.” Woodson v. State, 961 N.E.2d 1035, 1044 (Ind. Ct. App. 2012) (quoting

       Sweeney v. State, 886 N.E.2d 1, 8 (Ind. Ct. App. 2008), trans. denied), trans.

       denied. Having been decided well after Middleton’s trial, the decisions in Pace

       and Hines are not controlling.


[21]   In light of his reliance on Pace, Middleton has not established his counsel

       rendered deficient performance. Middleton also has not established prejudice.

       Indeed, we note there was direct evidence from undercover police officers that

       Middleton was in possession of and dealing cocaine on multiple occasions. As

       already acknowledged by this court on direct appeal, there was “significant

       independent evidence” to support the various drug convictions. As such, we

       find there was no prejudice resulting from trying the SVF charge with the

       possession/dealing drug charges.


                              Failure to Object to Admission of Evidence


[22]   Middleton argues that his trial counsel was ineffective for failing to object to

       admission of evidence relating to his prior drug dealing conviction on grounds

       that such violated Evidence Rule 404. In order to prove ineffective assistance

       due to the failure to object, the petitioner must prove that an objection would




       Court of Appeals of Indiana | Opinion 32A01-1603-PC-592 | December 1, 2016   Page 11 of 16
       have been sustained and that he was prejudiced thereby. Timberlake v. State, 690

       N.E.2d 243, 259 (Ind. 1997).


[23]   As acknowledged by Middleton, this issue presents the same concerns as the

       bifurcation issue. We conclude that the outcome is likewise the same. We first

       note that there is no statutory requirement for bifurcation. Additionally,

       Middleton’s trial counsel was not required to anticipate the development in the

       law that occurred in Hines nearly three years after his trial or in Pace, which was

       decided over ten years after his trial. Thus, at the time of Middleton’s trial,

       there was no precedent or statutory provision that required bifurcation.

       Without bifurcation, the prosecutor was required to introduce substantive

       evidence of Middleton’s prior conviction to prove his SVF status. Given the

       state of the law, Middleton has not established that an objection, if made,

       would have been sustained. Further, as noted above, given the overwhelming

       evidence in support of his convictions, Middleton cannot show that he was

       prejudiced by admission of the evidence regarding his prior conviction.


                                        Comment During Voir Dire


[24]   Finally, Middleton argues that Williams was ineffective when, during voir dire,

       he referred to Middleton as a “negro.” Petitioner’s Exhibit 1, Transcript at 92.

       Trial counsel’s full statement is set forth above. Middleton asserts that

       Williams’s use of a racial insult was unnecessary to describe his race, especially




       Court of Appeals of Indiana | Opinion 32A01-1603-PC-592 | December 1, 2016   Page 12 of 16
       given that he was being tried in absentia.7 He maintains that Williams’s conduct

       in this regard should be deemed to have “so undermined the proper functioning

       of the adversarial process that the trial cannot be relied on as having produced a

       just result.” Appellant’s Brief at 18-19 (quoting Strickland, 466 U.S. at 686).


[25]   Considering the entire context of Williams’s statement, it is evident that

       Williams’s choice of words was in the manner of exploring possible bias of

       prospective jurors. Even in this context, his choice of words was wholly

       unacceptable and amounted to deficient performance. Nevertheless, Middleton

       is not entitled to reversal because he has not established that but for counsel’s

       error, the result of the proceeding would have been different. As noted

       previously, there was overwhelming evidence to support his convictions.


[26]   Judgment affirmed.


[27]   Bradford, J., concurs.


[28]   Pyle, J., concurs in result with opinion.




       7
         Although Middleton was not present during his trial, his race was made known to the jury through witness
       testimony and admitted evidence.

       Court of Appeals of Indiana | Opinion 32A01-1603-PC-592 | December 1, 2016                    Page 13 of 16
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Corey Middleton,                                          Court of Appeals Case No.
                                                                 32A01-1603-PC-592
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Pyle, Judge concurring in result with opinion.


[29]   I concur with my colleagues holding, but I write separately because I believe

       Middleton’s counsel’s performance fell below current objective professional

       norms and also prejudiced Middleton. During voir dire, Middleton’s counsel

       properly explored the issue of race with prospective jurors. However, counsel

       referred to his absent client as a “Negro.” In a sterile environment, this word

       might not be any more offensive than the next. But, we do not live in a sterile

       environment. Words have power. Words convey explicit and implicit


       Court of Appeals of Indiana | Opinion 32A01-1603-PC-592 | December 1, 2016            Page 14 of 16
meanings they have acquired. While many dictionaries may still define the

term “Negro” as “a person of black African origin or descent[,]” it is also cross

referenced with the vile slur known euphemistically as “the N-word.” OXFORD

ENGLISH DICTIONARY, http://www.oed.com (last visited November 21, 2016)

[hereinafter OXFORD ENGLISH DICTIONARY]. “Negro” is not a word that is

used solely to distinguish one group of society from another; today’s usage of

this word does not embrace “‘that intent . . . . [I]t flows from the fountain of

purpose to injure.’” Randall Kennedy, NIGGER: THE STRANGE CAREER OF A

TROUBLESOME WORD 5 (2002) (quoting Hosea Easton, A Treatise on the

Intellectual Character and Civil and Political Condition of the Colored People of the

United States: and the Prejudice Exercised Towards Them (1837)) (emphasis added).

For this reason, the United States Census Department, among many other

public and private entities, has stopped using the term “Negro” on census

surveys.8 H. Yen, US stopping use of term ‘Negro’ for census Surveys, ASSOCIATED

PRESS, Feb. 5, 2013. The United States Army has also followed suit.

Associated Press, Army drops use of the term Negro in document, WASHINGTON

POST, (Nov. 6, 2014). While these are relatively recent examples of what has

long been understood, it seems likely that Middleton’s counsel also understood

the gravity of his choice of words; he quickly tried to correct himself and

reframe his error under the guise of “political correctness.”




8
 “‘Negro’ is still, however, used in positive contexts as part of the names of certain organizations,
particularly the United Negro College Fund, and in historical context, with reference to baseball’s Negro
Leagues.” OXFORD ENGLISH DICTIONARY.

Court of Appeals of Indiana | Opinion 32A01-1603-PC-592 | December 1, 2016                      Page 15 of 16
[30]   In the context of a criminal jury trial, counsel’s use of the term “Negro” to refer

       to his client in front of the potential jurors, who would determine whether he

       was guilty or not, goes far beyond “political correctness.” The right to counsel

       is constitutional and indispensable to the fair administration of justice. See

       Gideon v. Wainwright, 372 U.S. 335, 343 (1963). Connected to this right is

       counsel’s legal duty to defend Middleton, to advocate for him, and to not act

       against his interests. IND. ADMISSION AND DISCIPLINE RULE 22. While

       counsel properly performed many other tasks on behalf of his client, he also

       prejudiced his client. Before evidence had even been introduced, potential

       jurors saw and heard Middleton’s attorney, the person who was supposed to be

       his advocate, refer to Middleton in a racially offensive manner. While there is

       no evidence that counsel intended harm to Middleton, the harm was

       nonetheless inflicted. Middleton was presented to potential jurors in a racially

       offensive manner. For these reasons, I believe counsel’s performance during

       voir dire was deficient and also prejudiced Middleton. Nonetheless, in order

       for us to reverse the trial courts denial of Middleton’s petition, we would have

       to believe that “but for counsel’s errors, the result of the proceeding would have

       been different.” Oberst v. State, 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010). In

       this case, the evidence against Middleton was considerable. As a result, I am

       not convinced that the result would have been different.




       Court of Appeals of Indiana | Opinion 32A01-1603-PC-592 | December 1, 2016   Page 16 of 16
