MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              FILED
regarded as precedent or cited before any                                Mar 26 2019, 9:15 am

court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
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estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Michael Johnson                                          Curtis T. Hill, Jr.
Pendleton Correctional Facility                          Attorney General of Indiana
Pendleton, Indiana                                       Tyler Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Johnson,                                         March 26, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A02-1708-PC-1995
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         49G04-1504-PC-11413



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1995 | March 26, 2019             Page 1 of 14
                                             Case Summary
[1]   Michael Johnson, pro se, appeals the post-conviction court’s denial of his

      petition for post-conviction relief. He asserts that the post-conviction court

      clearly erred in determining that he failed to demonstrate that he received the

      ineffective assistance of trial counsel. Concluding that he has not met his

      burden to prove clear error, we affirm.


                                 Facts and Procedural History
[2]   The underlying facts as recited by another panel of this Court on direct appeal

      follow:


              As of January 2013, Johnson had been in a relationship with his
              girlfriend, I.B., for seven years and had lived with her in Marion
              County, Indiana since the previous September. On January 4,
              2013, Johnson and I.B. spent the day together but then separated.
              I.B. told Johnson she was going to go back to their home, but
              instead she went out and did not return home until 3:00 or 4:00
              a.m. the next morning. When she returned, Johnson was asleep
              and I.B. got into bed.


              At that point, Johnson got up and “started going crazy,”
              accusing I.B. of cheating on him with their neighbor. He called
              her “a nasty bitch” and began “talking shit.” I.B. denied his
              accusations and told him that he could call the neighbor if he
              wanted to verify that she had not cheated on him. In response,
              Johnson continued to yell at I.B., including the statement:
              “Bitch, you’re a fuckin’ liar. Crack head.” Then he poured a beer
              on her and told her to leave the house.


              When I.B. refused to leave, Johnson grabbed her by the hair and
              began punching her. Johnson punched her head more times than
      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1995 | March 26, 2019   Page 2 of 14
        she could count. I.B. told him to stop and that she had not
        cheated on him, but Johnson did not stop. Although I.B. “felt
        like [she] was about to die” and told Johnson that she was about
        to pass out, Johnson responded “I don’t give a fuck bitch.” As a
        result of the blows, I.B. felt “pain” and “dizziness.” Johnson
        then threw her from one side of the bed to the other and grabbed
        her throat. I.B. gestured that she could not breathe, but Johnson
        continued to hold her by the throat with one hand and punch her
        with his other hand.


        Johnson finally released I.B. and told her to call the people with
        whom she had spent the evening. He also told her that he had
        received a text message picture of her naked with somebody else.
        When I.B. asked to see the picture, though, Johnson would not
        show it to her. I.B. called the people as Johnson had requested,
        but she was not able to reach anyone. After I.B.’s attempted
        calls, Johnson took her phone away and did not give it back to
        her for the rest of the night.


        Subsequently, Johnson began punching I.B. again and told her
        “how much he hated [her]” and how she had “destroyed his
        life.” I.B. tried to block Johnson’s punches by taking a fetal
        position on the floor, yet Johnson continued to punch her,
        causing bruises on her arms. He also punched her head and
        kicked her in the eye. I.B. repeatedly asked Johnson to stop, but
        he did not.


        Next, Johnson pulled I.B. up by her hair and ripped off her
        clothing. He dragged her across the room and threw her down
        the steps, telling her: “Bitch, get the fuck out of my house.” At
        that point, I.B. was in extreme pain, which she rated as a “ten”
        on a scale of one to ten. She attempted to come back up the
        steps, but Johnson threw her back down again and then dragged
        her through their kitchen, dining room, and living room.
        Throughout this time, Johnson continued to hit I.B. She
        attempted to hold onto the couch but lost her grip, and Johnson
Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1995 | March 26, 2019   Page 3 of 14
        threw her outside. I.B. was not wearing any clothes and was
        “freezing cold” because there was snow on the ground.


        I.B. saw one of her neighbors coming down the street in a van
        and ran to the van to get help. She told the neighbor “Help me.
        Help me. He’s about to kill me,” and asked the neighbor to call
        the police. Johnson, however, came around the van and told the
        driver, “Man, she’s just drunk.” In response, the driver rolled up
        his window and told I.B. that he could not help her. I.B. then
        continued to run down the street and came across another car.
        She asked the people in the car for help, but Johnson said that
        they should “[m]ind [their] business,” and they left.


        Johnson grabbed I.B. and led her back inside. He told her to
        “[g]et [her] ass in the shower,” but he had to help her into the
        shower because she was too injured to get in by herself. During
        the shower, I.B. kept blacking out and had trouble standing.
        Afterwards, Johnson helped her out and told her to go to bed.
        Once she was in bed, he told her to “turn around” because he
        wanted to have sex with her. I.B. said that she did not want to
        have sex, but Johnson told her again to turn around. I.B. did
        what Johnson had asked because she was “afraid” and “didn't
        want to get beat[en] [any] more.” Johnson and I.B. had
        intercourse, and, afterwards, I.B. attempted to sleep but had
        trouble because she was in too much pain. Instead of sleeping,
        she kept falling in and out of consciousness like she had in the
        shower.


        The next morning, Johnson started crying and apologized to I.B.
        for his actions the night before, and I.B. believed that Johnson
        was sorry. She and Johnson again had sex, and this time it was
        consensual. Later that day, they both went to pick up furniture
        for their house. Throughout that time, I.B. was “[i]n so much
        pain” and had marks and bruises on her arms, face, head, and
        legs. Johnson had to help her do everything.


Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1995 | March 26, 2019   Page 4 of 14
        When they returned home, I.B. told Johnson that she needed to
        go to the hospital. He told her to call her sister for a ride and said
        she should tell her sister that she had gotten robbed at a bank
        cashing a check. Later, I.B.’s sister picked I.B. up to take her to
        the hospital and noticed that I.B. was limping and had bruises
        around her eye and on her face. I.B.’s sister asked Johnson who
        had injured I.B., and he said, “Well, I wasn’t here.” On the way
        to the hospital, I.B. told her sister what had really happened.
        They also stopped at McDonald’s, but I.B. had trouble eating
        because her jaw was locked.


        At the hospital, I.B. met with a police officer and told him what
        had happened. Officers then took pictures of I.B.’s injuries,
        including bruises and cuts on her left eye, arms, back, hip, ankle,
        hands, legs, and behind her ears. They also went to I.B.’s home
        and arrested Johnson.


        On January 9, 2013, the State charged Johnson with: (1) Class B
        felony criminal confinement; (2) Class B felony criminal
        confinement; (3) Class B felony rape; (4) Class C felony battery;
        (5) Class D felony intimidation; (6) Class D felony strangulation;
        and (7) Class A misdemeanor interfering with reporting of a
        crime.


Johnson v. State, 6 N.E.3d 491, 493-96 (Ind. Ct. App. 2014) (citations omitted)

(brackets in original). Johnson waived his right to a jury trial, a bench trial was

held, and the trial court found Johnson guilty as charged. The trial court

sentenced Johnson to twenty years each for his class B felony criminal

confinement convictions to be served concurrent to each other and concurrent

to the lesser sentences imposed for the lower level felony and misdemeanor

convictions. In addition, the trial court sentenced Johnson to twenty years for


Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1995 | March 26, 2019   Page 5 of 14
      the class B felony rape conviction to be served consecutive to the other

      sentences, for an aggregate sentence of forty years.


[3]   On direct appeal, Johnson alleged that he had not knowingly, voluntarily, and

      intelligently waived his right to a jury trial on all of his charges, the trial court

      abused its discretion in denying his right to cross-examine the victim about past

      sexual conduct, and the State presented insufficient evidence to support his

      convictions for class B felony rape and class D felony intimidation. Concluding

      that Johnson knowingly, voluntarily, and intelligently waived his right to a jury

      trial on all of his charges, he waived his argument regarding his right to cross-

      examine the victim, and the evidence was sufficient, this Court affirmed

      Johnson’s convictions. Id. at 498-501.


[4]   Johnson, by counsel, filed a petition for post-conviction relief on April 8, 2015.

      Following a hearing, the post-conviction court entered a detailed order denying

      Johnson’s petition. Johnson filed a motion to correct error, which the post-

      conviction court also denied. This appeal ensued.


                                     Discussion and Decision
[5]   The appellate standard of review regarding post-conviction proceedings is well

      settled.


              Post-conviction proceedings are civil proceedings in which the
              defendant must establish his claims by a preponderance of the
              evidence. Post-conviction proceedings do not offer a super
              appeal, rather, subsequent collateral challenges to convictions
              must be based on grounds enumerated in the post-conviction

      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1995 | March 26, 2019   Page 6 of 14
              rules. Those grounds are limited to issues that were not known
              at the time of the original trial or that were not available on direct
              appeal. Issues available but not raised on direct appeal are
              waived, while issues litigated adversely to the defendant are res
              judicata. Claims of ineffective assistance of counsel and juror
              misconduct may be proper grounds for post-conviction
              proceedings.


              Because the defendant is appealing from the denial of post-
              conviction relief, he is appealing from a negative judgment and
              bears the burden of proof. Thus, the defendant must establish
              that the evidence, as a whole, unmistakably and unerringly
              points to a conclusion contrary to the post-conviction court’s
              decision. In other words, the defendant must convince this Court
              that there is no way within the law that the court below could
              have reached the decision it did. We review the post-conviction
              court’s factual findings for clear error, but do not defer to its
              conclusions of law.


      Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013) (citations and quotation

      marks omitted). We will not reweigh the evidence or judge the credibility of

      witnesses, and will consider only the probative evidence and reasonable

      inferences flowing therefrom that support the post-conviction court’s decision.

      Hinesley v. State, 999 N.E.2d 975, 981 (Ind. Ct. App. 2013), trans. denied (2014).


[6]   Johnson was represented by appointed counsel for the first seven weeks of the

      pretrial period, after which Johnson hired Jonathan Gotkin (“trial counsel”),

      who represented Johnson for the majority of the pretrial period as well as the

      bench trial and sentencing. Johnson contends that trial counsel rendered




      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1995 | March 26, 2019   Page 7 of 14
      ineffective assistance by failing to properly investigate the case and

      communicate a plea offer. 1 Appellant’s Br. at 4.


[7]   Before addressing his contentions, we note that when evaluating an ineffective

      assistance of counsel claim, we apply the two-part test articulated in Strickland v.

      Washington, 466 U.S. 668 (1984). Humphrey v. State, 73 N.E.3d 677, 682 (Ind.

      2017). “To satisfy the first prong, ‘the defendant must show deficient

      performance: 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)). To satisfy the second prong, the

      defendant must show prejudice. Id. To demonstrate prejudice from counsel’s

      deficient performance, a petitioner need only show “a reasonable probability

      that, but for counsel’s unprofessional errors, the result of the proceeding would

      have been different.” Middleton v. State, 72 N.E.3d 891, 891-92 (Ind. 2017)

      (emphasis and citation omitted). “A reasonable probability is a probability

      sufficient to undermine confidence in the outcome.” Id.


[8]   Isolated poor strategy, inexperience, or bad tactics does not necessarily

      constitute ineffective assistance. Hinesley, 999 N.E.2d at 982. When

      considering a claim of ineffective assistance of counsel, we strongly presume




      1
        Johnson also argues that trial counsel rendered ineffective assistance by failing to form and articulate a
      theory of defense and properly question I.B. concerning witness bias and her incentives to cooperate with the
      State. Essentially, these allegations present the prejudice aspect of his failure to investigate claim, so we do
      not address them separately.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1995 | March 26, 2019               Page 8 of 14
       “that counsel rendered adequate assistance and made all significant decisions in

       the exercise of reasonable professional judgment.” Id. (citation omitted). We

       presume that counsel performed effectively, and a defendant must offer strong

       and convincing evidence to overcome this presumption. Id.


[9]    We first address Johnson’s claim that trial counsel failed to investigate.

       Specifically, he asserts that trial counsel failed to investigate I.B.’s allegedly

       exculpatory medical records and the charges pending against her when she

       testified at his trial. Johnson asserts that but for trial counsel’s deficient

       performance, there is a reasonable probability that he would not have been

       convicted of class B felony rape.


[10]   While it is undisputed that effective representation requires adequate pretrial

       investigation and preparation, it is well settled that we should resist judging an

       attorney’s performance with the benefit of hindsight. Badelle v. State, 754

       N.E.2d 510, 538 (Ind. Ct. App. 2001), trans. denied. Accordingly, when

       deciding a claim of ineffective assistance for failure to investigate, we apply a

       great deal of deference to counsel’s judgments. Boesch v. State, 778 N.E.2d

       1276, 1283 (Ind. 2002). Indeed,


               strategic choices made after thorough investigation of law and
               facts relevant to plausible options are virtually unchallengeable;
               and strategic choices made after less than complete investigation
               are reasonable precisely to the extent that reasonable professional
               judgments support the limitation on investigation. In other
               words, counsel has a duty to make reasonable investigations or to
               make a reasonable decision that makes particular investigations
               unnecessary.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1995 | March 26, 2019   Page 9 of 14
       Strickland, 466 U.S. at 690-91. In addition, establishing failure to investigate as a

       ground for ineffective assistance of counsel requires going beyond the trial

       record to show what investigation, if undertaken, would have produced. Woods

       v. State, 701 N.E.2d 1208, 1214 (Ind. 1998), cert. denied (1999). “This is

       necessary because success on the prejudice prong of an ineffectiveness claim

       requires a showing of a reasonable probability of affecting the result.” Id.


[11]   As for trial counsel’s alleged failure to investigate I.B.’s medical records,

       Johnson asserts that they show that I.B. denied that he sexually assaulted her,

       and trial counsel must not have investigated the records because if he had been

       aware of this alleged exculpatory evidence, he would have used it at trial. The

       post-conviction court found that Johnson had “failed to prove that trial counsel

       failed to investigate or obtain the victim’s medical records.” Appealed Order at

       14. Our review of the record shows that at the post-conviction hearing,

       Johnson moved to admit I.B.’s purported emergency room medical records

       based on her visit the day after Johnson battered her. The records were

       recovered from Johnson’s file in the archives of the Marion County Public

       Defender Agency. The post-conviction court admitted the records for the sole

       purpose of showing that they were in the public defender’s file. One of the

       pages in the medical records included a notation that read, “Denies sexual

       assault.” PCR Ex. 10. Trial counsel testified that he reviewed prior counsel’s

       file and all the discovery the State provided. PCR Tr. Vol. 2 at 18, 55.

       Although trial counsel did not specifically recall reviewing I.B.’s medical

       records due to the passage of time, he testified, “I review all discovery that I


       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1995 | March 26, 2019   Page 10 of 14
       have. I don’t piecemeal it. Whatever it takes to acquit my client, I would have

       reviewed.” Id. at 55.


[12]   Johnson’s assertion that trial counsel failed to investigate the records is based

       solely on his assumption that, had trial counsel been aware of the medical

       records, he would have introduced them and cross-examined I.B. regarding her

       alleged denial. His assumption is pure speculation. Under the circumstances, it

       is plausible that trial counsel decided not to pursue this evidence at trial as part

       of his trial strategy. I.B.’s initial statement to the police, as revealed in the

       probable cause affidavit supporting Johnson’s arrest, was that after Johnson

       forced her to shower,


               Johnson then put on a condom and positioned her on the bed on
               her knees with her backside to him and he vaginally penetrated
               her with his penis. [I.B.] stated that as he was penetrating her
               that she kept falling over and that he had to hold her up with his
               hands around her waist. She stated that she did not want to have
               sex but she was unable to say no nor resist due to her state of
               weakness and faint consciousness.


       Direct Appeal App. at 31. If, in fact, I.B. subsequently denied that Johnson

       sexually assaulted her, trial counsel was unable to question her about it before

       trial because I.B. failed to appear at multiple planned taped statements. PCR

       Tr. Vol. 2 at 24-25. Therefore, trial counsel may have decided to avoid

       questioning I.B about her alleged recantation because he did not know how she

       would answer such questions and whether her answers would be damaging to

       the defense. We conclude that Johnson has not met his burden to show that the


       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1995 | March 26, 2019   Page 11 of 14
       post-conviction court clearly erred in determining that he failed to demonstrate

       that trial counsel provided ineffective assistance by failing to investigate I.B.’s

       medical records.


[13]   As for trial counsel’s alleged failure to investigate the charges pending against

       I.B., Johnson asserts that the pending charges provided I.B. with an incentive to

       cooperate with the State, and if trial counsel had known about them, he could

       have used this information to impeach I.B. The record shows that after

       Johnson’s arrest but before his trial, I.B. was charged with dealing in cocaine

       and possession of cocaine, and these charges were still pending when I.B.

       testified at Johnson’s trial. The post-conviction court found,


               [T]here is simply no evidence that I.B. was given any type of
               special deal in exchange for her testimony at Johnson’s trial; thus
               any investigation which [trial counsel] either did or did not do
               would not have uncovered a motive for fabrication and would
               not have improved the outcome of the trial for Johnson. With no
               prejudice, this claim … fails.


       Appealed Order at 14.


[14]   Johnson does not direct us to any evidence in the record showing that I.B. had

       been offered or received any benefit from the State in exchange for testifying

       against him. Accordingly, any cross-examination of I.B. regarding the pending

       charges would have been of minimal impeachment value. We conclude that

       Johnson has not met his burden to show that the post-conviction court clearly

       erred in determining that he failed to show prejudice from trial counsel’s alleged

       failure to investigate I.B.’s pending charges.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1995 | March 26, 2019   Page 12 of 14
[15]   Johnson also maintains that trial counsel received a plea offer from the State

       but failed to communicate the offer to Johnson, and that if trial counsel had

       communicated the plea offer “Johnson undoubtedly would have excepted [sic]

       that plea.” 2 Appellant’s Br. at 13. 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.” Missouri v. Frye,

       566 U.S. 134, 145 (2012). However, the defendant must still show prejudice as

       a result of this breach of duty.


                To show prejudice from ineffective assistance of counsel where a
                plea offer has lapsed or been rejected because of counsel’s
                deficient performance, defendants must demonstrate a reasonable
                probability they would have accepted the earlier plea offer had
                they been afforded effective assistance of counsel. Defendants
                must also demonstrate a reasonable probability the plea would
                have been entered without the prosecution canceling it or the trial
                court refusing to accept it, if they had the authority to exercise
                that discretion under state law. To establish prejudice in this
                instance, it is necessary to show a reasonable probability that the
                end result of the criminal process would have been more
                favorable by reason of a plea to a lesser charge or a sentence of
                less prison time.


       Id. In Woods v. State, 48 N.E.3d 374, 381 (Ind. Ct. App. 2015), another panel of

       this Court held that the defendant satisfied the prejudice prong under Strickland,




       2
         Apparently, the terms of the plea offer included Johnson pleading guilty to class B felony criminal
       confinement and class C felony battery with open sentencing of six to twenty years for the class B felony and
       two to eight years for the class C felony. PCR Tr. Vol. 2 at 36.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1995 | March 26, 2019           Page 13 of 14
       where he testified that he would have accepted the plea offer and the offer

       would have resulted in a maximum twenty-year sentence as opposed to the

       forty-five-year sentence that was imposed.


[16]   Here, the post-conviction court found that trial counsel’s “post-conviction

       testimony is clear that he conveyed all plea offers to his client” and that

       Johnson “also presented no testimony or evidence to show any reasonable

       probability that he would have accepted any of the State’s plea offers, thus there

       is no prejudice here either.” Appealed Order at 15. Johnson’s bald assertion on

       appeal that he would have “undoubtedly” accepted the plea offer is inadequate

       to meet his burden to show that the post-conviction court clearly erred in

       finding that he failed to demonstrate prejudice.


[17]   In sum, Johnson has not met his burden to show that the post-conviction court

       clearly erred in determining that he failed to demonstrate that he received

       ineffective assistance of trial counsel. Accordingly, we affirm the denial of his

       petition for post-conviction relief.


[18]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1995 | March 26, 2019   Page 14 of 14
