MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                       FILED
court except for the purpose of establishing                                Apr 28 2020, 8:59 am
the defense of res judicata, collateral                                         CLERK
estoppel, or the law of the case.                                           Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
James Durham                                             Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana

                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

James Durham,                                            April 28, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-PC-2859
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Carl A. Heldt,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         82C01-1404-PC-6



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-2859| April 28, 2020                       Page 1 of 16
                                          Case Summary
[1]   In 2005, James Durham pled guilty to two counts of murder and three counts of

      Class A felony attempted murder, for which he was sentenced to an aggregate

      term of 210 years of incarceration. On appeal, we affirmed the trial court’s

      denial of Durham’s motion to withdraw his guilty plea but found his sentence

      inappropriate in light of his mental illness, reducing it to 170 years. We affirmed

      our decision on rehearing, and the Indiana Supreme Court denied transfer.


[2]   In 2014, Durham filed his petition for post-conviction relief (“PCR”), alleging

      ineffective assistance of appellate and trial counsel, and the post-conviction

      court ordered the parties to proceed by affidavit. The post-conviction court

      denied Durham’s petition in full. Durham contends that the post-conviction

      court erred by denying him a hearing and PCR. We affirm.



                            Facts and Procedural History
[3]   The underlying facts leading to Durham’s appeal of the denial of his PCR

      petition are as follows:

              On May 9, 2003, Durham shot Joseph Scales in the neck with a
              handgun. On May 10, 2003, Durham entered a bar in
              Vanderburgh County. After exclaiming religious ideations,
              Durham shot four people, killing two of them. Police arrested
              Durham shortly thereafter, and a gun found on his person was
              identified as the gun used in the shootings.

              The State charged Durham with two counts of murder [] and two
              counts of attempted murder, Class A felonies, regarding the

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2859| April 28, 2020   Page 2 of 16
        shootings at the bar. The State then added a charge for an
        Habitual Offender enhancement. Following a hearing, on May
        27, 2005, the trial court ordered evaluations to determine
        Durham’s competency and sanity. Two psychiatrists, Dr. Hilton
        and Dr. Liffick, evaluated Durham, and, after a hearing, the trial
        court found him to be incompetent to assist with his defense and
        ordered him committed to the Department of Mental Health.
        The court noted that Durham was disruptive at that hearing, “as
        in all previous court appearances.” Appellant’s App. at 24.

        Durham began treatment at the Logansport State Hospital
        (“Hospital”) in December 2003. On March 31, 2004, the
        Hospital filed its report, which included its determination that
        Durham was competent, and the trial court adopted that
        determination. At a hearing on April 13, 2004, the trial court
        ordered an evaluation to determine Durham’s sanity at the time
        of the alleged offenses. On August 4, 2004, Dr. Liffick filed his
        psychiatric report regarding Durham’s sanity. Dr. Hilton then
        informed the court that Durham refused to be transported for
        evaluation. On August 17, 2004, after a hearing, the trial court
        granted a defense motion to have Durham re-evaluated as to
        competency.

        On August 24, 2004, Durham appeared at a hearing and stated
        that he did not wish to assert an insanity defense, but he agreed
        to be evaluated. On August 25, 2004, the trial court ordered new
        evaluations regarding Durham’s competency and his sanity. On
        September 10, 2004, Dr. Hilton filed a report of his psychiatric
        evaluation of Durham, and at a hearing on September 30, 2004,
        at which Durham appeared in person, the trial court again found
        Durham competent to assist with his defense.

        Trial was scheduled to begin on January 10, 2005. At a progress
        hearing on December 10, 2004, defense counsel requested a
        weekend continuance to allow Durham to “talk with his family
        about how to proceed.” Id. at 14. The trial court denied that
        request. On January 7, 2005, three days before the trial was
        scheduled to start, the sheriff’s department informed the court
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2859| April 28, 2020   Page 3 of 16
        that Durham had stopped taking his medications “that were
        prescribed by the psychiatrist at the mental hospital after the
        court found him to be incompetent to assist in his defense.” Id. at
        12. The court noted that Durham had “returned from the mental
        hospital and [had been] adjudged competent as a result of [his]
        taking the medication. [Durham] ha[d] been calm, lucid and
        responsive in the court room and much different than what he
        was before he was sent to the mental hospital.” Id. Defense
        counsel first learned at 10:30 a.m. that day that Durham had
        ceased taking his medications, and the jail reported that Durham
        was “beginning to show symptoms [of his mental illness].” Id.

        Thereafter, the trial court brought Durham into the courtroom,
        questioned him, and determined him to be competent. Durham
        informed the court that the medications had been making him
        sick. The trial court ordered Durham to take his medications and
        stated that it would send a psychiatrist to “help give him some
        medication that won’t make him sick . . . .” Id. Durham then
        agreed to start taking his medications again. In response to
        questioning by defense counsel, Durham stated that he did not
        think he was competent at that time but would start taking his
        medications. The trial court denied defense counsel’s request to
        have Durham’s competency re-evaluated.

        On January 8, 2005, the State filed in open court an additional
        attempted murder charge, regarding the shooting of Scales.
        Thereafter, the parties filed a plea agreement, under which
        Durham pleaded guilty to two counts of murder and three counts
        of attempted murder, Class A felonies. After questioning
        Durham, the trial court found that a factual basis for the plea
        existed and that Durham had entered the plea knowingly,
        voluntarily, and intelligently.

        On January 28, 2005, Durham filed a motion to withdraw his
        guilty plea. After hearing arguments from both parties, the court
        denied the motion. On March 1, 2005, the trial court sentenced
        Durham to sixty years for each murder count and forty-five years
        for each attempted murder count. The sentences for the murders
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2859| April 28, 2020   Page 4 of 16
              and for the first two attempted murder counts were to run
              consecutive to one another, and the sentence for the third
              attempted murder count was to run [concurrent] to the other
              sentences. Durham’s total executed sentence was 210 years. This
              appeal ensued.


      Durham v. State, 82A04-0504-CR-175 (Ind. Ct. App. April 13, 2006), aff’d on

      reh’g. On direct appeal, Durham argued that the trial court abused its discretion

      by denying his motion to withdraw his guilty plea and in sentencing him. Id.

      We disagreed with Durham’s contention that he was incompetent at the time of

      his plea, thereby preventing his plea from being voluntary, knowing, and

      intelligent, and affirmed the trial court’s denial of his motion to withdraw his

      guilty plea. Id. We agreed, however, that his sentence was inappropriate in light

      of his mental illness and reduced his sentence to 170 years. Id. We granted

      Durham’s petition for rehearing and reaffirmed our prior decision. Durham v.

      State, 82A04-05-04-CR-175 (Ind Ct. App. August 31, 2006). Durham sought

      transfer, which was denied by the Indiana Supreme Court. Durham v. State, 860

      N.E.2d 596 (Ind. 2006).


[4]   On April 17, 2014, Durham filed a PCR petition, which was amended in

      December of 2014, and the post-conviction court ordered the parties to proceed

      by affidavit. Durham alleged claims of ineffective assistance of trial and

      appellate counsel. On November 13, 2019, the post-conviction court denied

      Durham PCR.




      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2859| April 28, 2020   Page 5 of 16
                                 Discussion and Decision
[5]   The standard of review for appeals from the denial of PCR is well-settled.

      Petitioners who have exhausted the direct-appeal process may challenge the

      correctness of their convictions and sentences by filing a post-conviction

      petition. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Petitioner bears the

      burden of establishing grounds for PCR by a preponderance of the evidence. Id.

      By appealing from a negative judgment, a petitioner faces a rigorous standard of

      review. Wesley v. State, 788 N.E.2d 1247, 1250 (Ind. 2003). Denial of PCR will

      be affirmed unless, “the evidence as a whole leads unerringly and unmistakably

      to a decision opposite that reached by the post-conviction court.” Id. We do not

      defer to the post-conviction court’s legal conclusion but do accept its factual

      findings unless they are clearly erroneous. Stevens, 770 N.E.2d at 746. The post-

      conviction process does not provide a petitioner with a “super-appeal” but,

      rather, a “narrow remedy for subsequent collateral challenges to convictions,

      challenges which must be based on grounds enumerated in the post-conviction

      rules.” Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999). Issues that were

      known and available but not raised on direct appeal are waived, and issues

      raised but decided adversely are res judicata. Id.


              I. Denial of Evidentiary Hearing and Subpoenas
[6]   Durham contends that the post-conviction court erroneously failed to issue

      subpoenas and hold an evidentiary hearing regarding his PCR petition.

      Pursuant to Indiana Post-Conviction Rule 1(9)(b)


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2859| April 28, 2020   Page 6 of 16
              In the event petitioner elects to proceed pro se, the court at its
              discretion may order the cause submitted upon affidavit. It need
              not order the personal presence of the petitioner unless his
              presence is required for a full and fair determination of the issues
              raised at an evidentiary hearing. If the pro se petitioner requests
              issuance of subpoenas for witnesses at an evidentiary hearing, the
              petitioner shall specifically state by affidavit the reason the
              witness’ testimony is required and the substance of the witness’
              expected testimony. If the court finds the witness’ testimony
              would be relevant and probative, the court shall order that the
              subpoena be issued. If the court finds the proposed witness’
              testimony is not relevant and probative, it shall enter a finding on
              the record and refuse to issue the subpoena. Petitioners who are
              indigent and proceeding in forma pauperis shall be entitled to
              production of guilty plea and sentencing transcripts at public
              expense, prior to a hearing, if the petition is not dismissed. In
              addition, such petitioners shall also be entitled to a record of
              the post-conviction proceeding at public expense for appeal of the
              denial or dismissal of the petition.


      We review a post-conviction court’s decision to proceed under Indiana Post-

      Conviction Rule 1(9)(b) for an abuse of discretion. Smith v. State, 822 N.E.2d

      193, 201 (Ind. Ct. App. 2005), trans. denied. “An abuse of discretion occurs

      where the decision is clearly against the logic and effect of the facts and

      circumstances.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).


[7]   In his motions to the post-conviction court and his appellate brief, Durham has

      failed to explain why an evidentiary hearing was required or how any witness’s

      testimony would have assisted in the disposition of his PCR petition. At best,

      his explanation has been merely a recitation of his contentions for PCR or a

      bald statement that witnesses are necessary for a full and fair evidentiary


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2859| April 28, 2020   Page 7 of 16
      determination of the issues. Durham has failed to establish an abuse of

      discretion in this regard.


                II. Ineffective Assistance of Appellate Counsel
[8]   Durham raises numerous specific claims of ineffective assistance of appellate

      counsel for the first time on appeal. In his PCR petition, Durham merely stated

      broadly that he received ineffective assistance of appellate counsel without

      providing any specific argument or cogent reasoning. In denying him relief, the

      post-conviction court noted that “Petitioner has failed to identify how his

      appellate counsel provided ineffective assistance nor provide any evidence by

      way of affidavits or otherwise in support of this argument.” Appellant’s Br. p.

      78. Because Durham failed to raise these specific claims of ineffective assistance

      of appellate counsel in his PCR petition, they are barred from appellate review.

      See Minnick v. State, 698 N.E.2d 745, 753 (Ind. 1998) (concluding that

      “[b]ecause the defendant’s final amended post-conviction petition did not claim

      denial of counsel from the failure to request funds, this specific claimed failure

      is not available in this appeal.”).


                   III. Ineffective Assistance of Trial Counsel
[9]   Durham contends that he received ineffective assistance from his trial counsel.


              This Court reviews claims of ineffective assistance of counsel
              under the two components set forth in Strickland v. Washington,
              466 U.S. 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the
              defendant must show that counsel’s performance was deficient.
              This requires a showing that counsel’s representation fell below

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2859| April 28, 2020   Page 8 of 16
        an objective standard of reasonableness, and that the errors were
        so serious that they resulted in a denial of the right to counsel
        guaranteed the defendant by the Sixth Amendment[.] Second,
        the defendant must show that the deficient performance
        prejudiced the defendant. To establish prejudice, a defendant
        must show that there is a reasonable probability that, but for
        counsel’s unprofessional errors, the result of the proceeding
        would have been different. A reasonable probability is a
        probability sufficient to undermine confidence in the outcome.


Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002) (internal citations omitted).


        There is a strong presumption that counsel rendered adequate
        assistance and made all significant decisions in the exercise of
        reasonable professional judgment. Counsel is afforded
        considerable discretion in choosing strategy and tactics, and these
        decisions are entitled to deferential review. Isolated mistakes,
        poor strategy, inexperience, and instances of bad judgment do
        not necessarily render representation ineffective.


Id. (cleaned up). “There are two different types of ineffective assistance of

counsel claims that can be made in regards to guilty pleas: (1) failure to advise

the defendant on an issue that impairs or overlooks a defense and (2) an

incorrect advisement of penal consequences.” McCullough v. State, 987 N.E.2d

1173, 1176 (Ind. Ct. App. 2013). The Indiana Supreme Court further explained

that


        to prove this in the case of claims related to a defense or failure to
        mitigate a penalty, it must be shown that there is a reasonable
        probability that a more favorable result would have obtained in a
        completely run trial. However, for claims relating to penal
        consequences, a petitioner must establish, by objective facts,
        circumstances that support the conclusion that counsel’s errors in
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2859| April 28, 2020   Page 9 of 16
               advice as to penal consequences were material to the decision to
               plead. Merely alleging that the petitioner would not have pleaded
               is insufficient. Rather, specific facts, in addition to the petitioner’s
               conclusory allegation, must establish an objective reasonable
               probability that competent representation would have caused the
               petitioner not to enter a plea.


       Seguara v. State, 749 N.E.2d 496, 507 (Ind. 2001).


                                          A. Scrivener’s Error
[10]   Durham contends that his trial counsel was ineffective for failing to correct a

       scrivener’s error in the plea agreement. The plea agreement requested that the

       trial court “approve and accept the aforesaid agreement pursuant to I.C. 35-5-6-

       2.” Appellant’s Direct Appeal App. p. 318. Indiana Code section 35-5-6-2 was

       repealed and replaced by Indiana Code section 35-35-3-3 years prior to

       Durham’s guilty plea. Although Durham has directed our attention to this

       scrivener’s error, he has failed to establish any specific facts that would remotely

       suggest that had counsel discovered this scrivener’s error there is an objectively

       reasonable probability that he would not have entered a plea of guilty.


                                             B. Boykin Rights
[11]   Durham claims that his trial counsel was ineffective by failing to object when he

       was not advised of his Boykin rights. “Boykin requires that the record must

       show, or there must be an allegation and evidence which show, that the

       defendant was informed of, and waived, three specific federal constitutional

       rights: the privilege against compulsory self-incrimination, right to trial by jury,

       and the right to confront one’s accusers.” Hall v. State, 849 N.E.2d 466, 469
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2859| April 28, 2020   Page 10 of 16
       (Ind. 2006). Because he was advised of his Boykin rights and waived them,

       Durham’s claim is meritless. On January 8, 2005, the trial court advised

       Durham as follows:


               BY THE COURT: I need to repeat some rights and add some
               rights that you have with regard to all five of these and I want
               you to listen closely. You are entitled to a speedy and public trial
               by Court or jury. The State must prove beyond a reasonable
               doubt that you committed the offenses charged before you could
               be convicted of them. You have the right to introduce evidence
               and testify if you so desire, however you cannot be compelled or
               forced to testify against yourself. The Court will subpoena any
               witnesses needed for your defense. You have the right to object
               to the introduction of the evidence and to confront and to cross
               examine any witness used by the State. If the verdict is against
               you and you are found guilty you would have the right to appeal,
               and if you could not afford an attorney the court would appoint
               an attorney to represent you on that appeal. Do you understand
               these rights?

               BY [DURHAM]: Yes.

               BY THE COURT: Do you also understand, Mr. Durham, that
               be pleading guilty you’re giving up all of these rights?

               BY [DURHAM]: Yes.


       Direct Appeal Tr. p. 52. Durham has failed to establish that his counsel was

       ineffective in this regard.


                                             C. Factual Basis
[12]   Durham claims that his trial counsel was ineffective for failing to object to an

       allegedly inadequate factual basis. “A sufficient factual basis can be established


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2859| April 28, 2020   Page 11 of 16
by the defendant’s admission that he understands the nature of the crime and

understands that his guilty plea is an admission that he committed the crime.”

Bates v. State, 517 N.E.2d 379, 382 (Ind. 1988). This claim is also meritless. On

January 8, 2005, the trial court and Durham had the following colloquy:


        BY THE COURT: Now I have this plea agreement in front of
        me and it recites as you know that in addition to Count V you’ve
        also been charged with Count I Murder, Count II Murder, Count
        III Attempted Murder, a Class A felony and Count IV Attempted
        Murder a Class A felony. Do you understand the nature of those
        charges?

        BY [DURHAM]: Yes.

        […]

        BY THE COURT: Do you understand that by your pleas of
        guilty you are admitting the truth of all the facts alleged in
        Counts I, II, III, IV and V and upon entry of your pleas the Court
        will proceed with judgment and sentencing, do you understand
        that?

        BY [DURHAM]: Yes.

        […]

        BY THE COURT: Now the State says in Count I that in
        Vanderburgh County, Indiana, on or about May 10, 2003 you
        knowingly killed Steve Winneke by shooting Steve Winneke …
        Steven Winneke using a Glock handgun, did you do that, Mr.
        Durham?

        BY [DURHAM]: Yes.

        BY THE COURT: In Count II they say that in Vanderburgh
        County, Indiana on or about May 10, 2003, you knowingly killed


Court of Appeals of Indiana | Memorandum Decision 19A-PC-2859| April 28, 2020   Page 12 of 16
        Marsha Fraser by shooting Marsha Fraser using a Glock
        handgun, did you do that, sir?

        BY [DURHAM]: Yes.

        BY THE COURT: And in Count III they say that in Vanderburg
        County, Indiana, on or about May 10, 2003 you attempted to
        commit the crime of murder by intentionally shooting a Glock
        handgun at Melony Jones, which conduct constituted a
        substantial step toward the commission of the crime of murder,
        did you do that?

        BY [DURHAM]: Yes.

        BY THE COURT: In Count IV they say that in Vanderburgh
        County, Indiana, on or about May 10, 2003 you attempted to
        commit the crime of murder by intentionally shooting a Glock
        handgun at Barry Rolley which conduct constituted a substantial
        step toward … toward the commission of the crime of murder,
        did you do that?

        BY [DURHAM]: Yes.

        BY THE COURT: And as I told you before in Count V they say
        that in Vanderburgh County, Indiana, on or about May 9, 2003,
        you attempted to commit the crime of murder by intentionally
        shooting Joseph Scales in the neck while using a handgun, which
        conduct constituted a substantial step toward the commission of
        the crime of murder, did you do that, Mr. Durham?

        BY [DURHAM]: Yes.


Direct Appeal Transcript pp. 51–52, 53–54. Given that there was, in fact, an

adequate factual basis, Durham has failed to establish that his counsel was

ineffective in this regard.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-2859| April 28, 2020   Page 13 of 16
                                     D. Consecutive Sentences
[13]   Because Durham’s trial counsel allegedly failed to advise him of the possibility

       of a sentence with consecutive terms, he contends that his counsel was

       ineffective. The record, however, indicates that Durham was advised of the

       possibility of consecutive sentences and still chose to plead guilty. The plea

       agreement clearly states that Durham faced a possible sentence between forty-

       five and 230 years. The plea agreement was signed by Durham and, by signing

       it, he affirmed that he understood the terms of the agreement and fully

       discussed them with his counsel. Moreover, in his affidavit responding to

       Durham’s questions in this matter, Durham’s trial counsel David Brunner

       stated that he and co-counsel “reviewed the agreement with [Durham,]

       thoroughly, and explained it to him in the secured area behind the Courtroom.”

       Appellant’s App. Vol. II p. 221. Brunner also stated that he and co-counsel

       “explained ‘consecutive’ and ‘concurrent’ sentencing to [Durham] at length.”

       Id. at 223. Finally, at the guilty plea hearing, the trial court explained to

       Durham that it could run Counts I through IV consecutively for a possible

       penalty between forty-five and 230 years, to which Durham stated that he

       understood. Durham has failed to establish that counsel was ineffective in this

       regard.


                                                 E. Count V
[14]   Durham contends that because Count V, Class A felony attempted murder was

       added after the omnibus date, his trial counsel was ineffective for failing to

       object to the addition. By agreeing to plead guilty to Count V in this case, the

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2859| April 28, 2020   Page 14 of 16
       State agreed to run Count V concurrent to the other four Counts and dismiss

       the habitual offender enhancement. Not only did Durham’s counsel’s plea

       negotiations prevent Durham from facing a possible habitual offender

       enhancement, they resulted in Count V being run concurrently to the other

       Counts in this case, rather than the possibility of the State filing the charge in a

       separate case in which there would be no guarantee of a concurrent sentence.

       Moreover, assuming, arguendo, that Durham’s trial counsel should have

       objected to the addition of Count V once it was added after the omnibus date,

       Durham has failed to assert any specific facts that establish an objective

       reasonable probability that competent representation would have caused him

       not to plead guilty. The post-conviction court’s denial of PCR was proper in

       this regard.


                                       F. Voluntariness of Plea
[15]   Durham claims that his trial counsel was ineffective for failing to adequately

       challenge that his plea was not given voluntarily, knowingly, or intelligently.

       On direct appeal, we concluded that


               Durham next contends that the trial court’s denial of his motion
               to withdraw his guilty plea worked a manifest injustice because
               he was incompetent at the time of his plea. Essentially, Durham
               is alleging that his plea was not voluntary, knowing, and
               intelligent. We cannot agree.


       Durham v. State, 82A04-0504-CR-175 (Ind. Ct. App. April 13, 2006), aff’d on

       reh’g. Given our previous conclusion that Durham’s plea was voluntary,


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2859| April 28, 2020   Page 15 of 16
       knowing, and intelligent, Durham cannot show that his trial counsel’s

       performance was deficient in this regard.


[16]   The judgment of the post-conviction court is affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2859| April 28, 2020   Page 16 of 16
