MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be                          Apr 21 2020, 8:50 am
regarded as precedent or cited before any
court except for the purpose of establishing                        CLERK
                                                                Indiana Supreme Court
                                                                   Court of Appeals
the defense of res judicata, collateral                              and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jackie Leigh Butler                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Antwan Rush,                                             April 21, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-PC-1477
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia A. Gooden,
Appellee-Respondent,                                     Judge
                                                         The Honorable Richard E.
                                                         Hagenmaier, Commissioner
                                                         Trial Court Cause No.
                                                         49G21-1003-PC-23463



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-1477 | April 21, 2020          Page 1 of 18
                               Case Summary and Issues
[1]   Following a jury trial, Antwan Rush was convicted of one count of dealing in

      cocaine as a Class A felony, among other crimes. He received an aggregate

      sentence of thirty-five years to be served in the Indiana Department of

      Correction. On direct appeal, we affirmed Rush’s convictions. Rush v. State,

      2012 WL 642064 (Ind. Ct. App. Feb. 28, 2012), trans. denied. Rush subsequently

      filed a petition for post-conviction relief (“PCR”) which was denied by the post-

      conviction court. Rush challenges the denial of his petition, raising two issues

      for our review: 1) whether he received ineffective assistance from his trial

      counsel and 2) whether the proffered testimony of a witness at the post-

      conviction hearing constituted newly discovered evidence. Concluding Rush’s

      trial counsel rendered effective assistance and Rush did not prove the existence

      of newly discovered evidence, we affirm.



                            Facts and Procedural History
[2]   In the early morning hours of March 8, 2010, Rush was driving a Trailblazer

      when Officer Travis Hunter of the Indianapolis Metropolitan Police

      Department (“IMPD”) observed that the vehicle had a cracked taillight. Officer

      Hunter initiated a traffic stop and learned that Rush’s driving privileges had

      been suspended. Rush’s cousin, Ronyai, came to the scene to take possession of

      the vehicle but IMPD policy precluded officers from releasing the Trailblazer to

      Ronyai. Rush was arrested and taken to the Marion County Jail, an inventory



      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1477 | April 21, 2020   Page 2 of 18
      search of the Trailblazer was conducted, and the vehicle was towed from the

      scene to an impound yard.


[3]   Around this time, Detective Matthew Stevenson of the IMPD Violent Crimes

      Unit (“VCU”) was seeking to contact Rush in an unrelated matter. On the

      morning of March 8, he learned that Rush had been arrested, but Rush was

      released from jail before Detective Stevenson could contact him. Detective

      Stevenson then discovered several Indianapolis addresses connected to Rush.

      Among those was a unit in a duplex on North Carrollton Avenue (“4210

      Carrollton”). Bureau of Motor Vehicles’ (“BMV”) records revealed that 4210

      Carrollton was Rush’s last known address. Detective Stevenson then requested

      this address be placed under surveillance.


[4]   During the afternoon of March 8, detectives observed a Chevrolet Malibu drive

      from 4210 Carrollton to a nearby Walgreens store. Rush’s brother, Antonio,

      exited the car, entered the store, purchased a box of latex surgical gloves, and

      got back in the car. The Malibu then returned to 4210 Carrollton. After the

      Malibu returned from Walgreens, Rush emerged from 4210 Carrollton and

      stood next to the car for several minutes before returning to the house.

      Detectives also saw Ronyai twice drive to 4210 Carrollton in a black Dodge

      Charger. There was very heavy foot and vehicular traffic to and from 4210

      Carrollton that was uncharacteristic of the neighborhood – by one detective’s

      estimate, nearly thirty-five people came and went while the house was under

      surveillance – with each person remaining at the residence for only a few

      minutes before leaving. Detectives recognized this conduct as characteristic of

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1477 | April 21, 2020   Page 3 of 18
      individuals purchasing drugs. Detectives later learned that Brigitte Winters was

      among those who went to 4210 Carrollton on March 8; she went there to

      purchase crack.


[5]   Late that afternoon, detectives reported that the Malibu left 4210 Carrollton.

      Detective Stevenson requested that uniformed police officers stop the car, and

      he and several other detectives traveled to the scene of the traffic stop. When

      police stopped the vehicle, they found Antonio driving with Rush in the

      passenger’s seat. Each was in possession of large sums of cash. While the traffic

      stop was under way, other VCU detectives approached 4210 Carrollton and

      knocked on the front door. After receiving no reply, detectives knocked louder.

      They heard loud noises coming from inside the house. Shortly after this,

      Ronyai opened a space in the blinds to see who was at the door. After Ronyai

      saw detectives, he snapped the blinds closed. The detectives continued to hear

      noise from inside the house, including Ronyai’s voice, but no one came to the

      door. Winters was still in the house when police knocked but she hid upstairs

      because there was no way for her to get out of the house without being spotted

      by police.


[6]   On direct appeal, the court described what occurred next:


              Knowing that older duplexes like the one at 4210 Carrollton
              often allowed attic access to the adjacent unit in the building,
              Detective Gregory knocked on the door of the other unit in the
              duplex, 4212 Carrollton. One of its occupants admitted him to
              the residence. Detective Gregory explained that police suspected
              criminal activity in 4210 Carrollton, and obtained identification
              information from the occupants of 4212 Carrollton. After
      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1477 | April 21, 2020   Page 4 of 18
        advising the occupants to remain inside for their safety, Detective
        Gregory left 4212 Carrollton. Among those in 4212 Carrollton
        was Ronyai, who had identified himself to Detective Gregory as
        Sam Jones and provided a date of birth and social security
        number.


        Detective Gregory ran each of 4212 Carrollton’s occupants[’]
        names through police computers and determined that the
        information Ronyai provided was false. . . . Ronyai,
        accompanied by a female adult, left the house carrying a child in
        his arms. Detective Gregory called Ronyai over to ask him about
        the false identification information he had provided. After
        handing the child over to his female companion, Ronyai
        provided correct identification information. Detective Gregory
        checked the correct information in police computers and
        determined that Ronyai’s driving privileges had been suspended.
        Because detectives had seen Ronyai driving the black Dodge
        Charger earlier that day, [they] arrested him.


        In the interim, Detective Stevenson sought and obtained [a]
        search warrant[] for 4210 Carrollton . . . . During their search of
        4210 Carrollton, police found drug-related items throughout the
        first floor of the house, including 281.243 grams of powder
        cocaine and 90.639 grams of crack cocaine; cooking pans with
        cocaine residue; numerous rubber gloves and plastic baggies,
        several of which contained crack cocaine; a twenty-gauge
        shotgun and shotgun shells; and a loaded .38 Special revolver.
        Police also found, in the second floor of the house, a panel
        allowing access into the shared attic between 4210 Carrollton and
        4212 Carrollton, which permitted Ronyai to move between the
        two units in the duplex while avoiding police observation.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-1477 | April 21, 2020   Page 5 of 18
      Id. at *3. At the time police served the search warrant, Winters was still in the

      house. Officers spoke with Winters. However, they allowed Winters to leave

      and did not include any information about her in the probable cause affidavit.


[7]   The State charged Rush with one count of dealing in cocaine as a Class A

      felony for the drugs found at 4210 Carrollton, among other crimes related to

      other times and places.1 This charge was based on the theory of constructive

      possession because Rush was not at 4210 Carrollton when the search warrant

      was executed and the drugs were found. Winters was not listed as a State’s

      witness in the charging information. Ronyai was charged with related offenses

      and tried alongside Rush.


[8]   Shortly before trial, prosecutors on this case changed and the new prosecutor

      filed the State’s final witness list which did not include Winters as a potential

      witness. However, the State notified defense counsel that a “confidential

      informant” had given a taped statement but would not be called as a witness

      during its case-in-chief. See [Direct Appeal] Transcript, Volume IV at 74.2


[9]   Rush’s jury trial ensued. At the conclusion of the State’s evidence, the State

      requested to have Winters testify as a rebuttal witness to counter testimony that




      1
       The State also charged Rush with one count of conspiracy to commit dealing in cocaine (a second count
      was dismissed by the State before trial) and a second count of dealing in cocaine, both Class A felonies; two
      counts of possession of cocaine and possession of cocaine and a firearm, each Class C felonies; unlawful
      possession of a firearm by a serious violent felon, a Class B felony; and possession of marijuana, a Class A
      misdemeanor. See Appellant’s [Direct Appeal] Appendix, Volume I at 36-37.
      2
          Our citation to the direct appeal transcript is based on the .pdf pagination.


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1477 | April 21, 2020                    Page 6 of 18
       Ronyai was never in the residence and never had cocaine in his possession.

       According to the State, Winters would testify that she was at 4210 Carrollton at

       the time of the search and that Ronyai was inside 4210 Carrollton with her.

       Ronyai’s counsel objected to Winters testifying; Rush’s counsel did not audibly

       join the discussion. The trial court ultimately ruled that Winters would not be

       allowed to testify.


[10]   The jury found Rush guilty as charged. The trial court entered judgment of

       conviction against Rush for convictions including one count of dealing in

       cocaine at 4210 Carrollton.3 The trial court sentenced Rush to thirty-five years.

       A panel of this court affirmed Rush’s convictions on direct appeal. Rush, 2012

       WL 642064 at *9.


[11]   In 2012, Rush filed a pro se petition for PCR alleging, inter alia, that his trial

       counsel was ineffective. His petition was amended by counsel in 2017 to raise

       the following issues relevant to this appeal: his trial counsel was ineffective for

       failing to investigate and speak to Winters, who arguably had exculpatory

       evidence, and the testimony of his co-defendant, Ronyai, was newly discovered

       evidence. See Appellant’s [Post-Conviction Relief] Appendix, Volume I at 47.


[12]   At the PCR hearing, the court heard testimony from Winters, Rush’s trial

       counsel, and Ronyai. Winters testified that she was familiar with Rush because




       3
        The trial court also entered judgments of conviction for one count of dealing in cocaine and one count of
       possession of marijuana related to drugs found during a search of the Trailblazer.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1477 | April 21, 2020                   Page 7 of 18
       she used to get crack from him in 2009. On March 8, 2010, Winters had gone to

       4210 Carrollton to “get . . . a sack of crack[.]” [Post-Conviction Relief]

       Transcript (“PCR Tr.”) at 4. When she arrived at 4210 Carrollton, Rush opened

       the door and Winters noticed that the house, including the kitchen counter, was

       cleaner than usual. Rush then gave Winters a sack of crack. When asked if she

       was sure that it was Rush who sold the crack to her or if there were other people

       that sold to her from that address, Winters said, “Just him and I.” Id. at 7.

       Shortly thereafter, police arrived at 4210 Carrollton; Rush had already left. The

       police knocked on the door. Winters tried to find a way to get out the house but

       was unable to, so she ran upstairs and hid. At some point, Winters came back

       downstairs but this time she noticed two bags of cocaine on the kitchen counter

       that were not there when she had entered. Later in her testimony, Winters

       stated that she was not positive that Rush had sold her the crack because she

       kept “getting [Rush and Ronyai] mixed up[.]” Id. at 22. However, Winters said

       that she obtained crack from Rush on most occasions.


[13]   Rush’s trial counsel, Jeffery Mendes, testified that he could not remember if he

       had ever spoken with Winters. However, Mendes could not locate his file

       regarding Rush’s case and was testifying from memory about an eight to nine-

       year-old case. Nonetheless, Mendes stated, “I don’t know why I didn’t speak to

       her, unless her name was never given to me or presented to me as a person that

       needed to be spoken to, but I don’t think any of the . . . lawyers spoke to her.”

       Id. at 31.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1477 | April 21, 2020   Page 8 of 18
[14]   Ronyai testified that he did not see Rush at 4210 Carrollton on March 8, that

       Rush was not in the house when Winters arrived, and that Rush did not sell

       Winters crack that day. See id. at 44. Ronyai confirmed that he was in the house

       when police came, the cocaine on the counter belonged to him, and he sold

       drugs to Winters at 4210 Carrollton.4


[15]   The post-conviction court issued findings of fact and conclusions thereon

       denying Rush’s amended petition. The post-conviction court concluded:


                [T]here was other evidence that linked [Rush] with the house. It
                could very well have been a strategy not to pursue discovery of a
                witness who could likely be harmful to the defense. By
                discovering [Winters] and interviewing her the defense could
                very well have increased the likelihood of her being a witness,
                since the State could argue that the defense was then given
                discovery prior to trial, thus lessening the argument of surprise.
                Regardless, the Court does find that [Rush] has not proven
                ineffectiveness given all of the circumstances.


                Additionally, [Rush] fails to show how this evidence would have
                resulted in a different outcome. The allegation is that [Winters’]
                testimony would help show [Rush] was not there that day. Any
                minimal relevance such testimony might have had is certainly
                outweighed by the credibility issues surrounding [Winters] and
                her potential for harmful testimony.




       4
         Ronyai asked Rush’s counsel to cancel the transport order for his appearance at Rush’s PCR hearing
       because he was “currently pursuing [his] own legal endeavors” and offered to instead write a statement on
       Rush’s behalf. See [Post-Conviction Relief] Exhibits, Volume II at 11. When he was nonetheless transported
       to court, he decided to testify because Rush is “taking a bullet that he don’t deserve and that’s something that
       tears me up at night and he shouldn’t . . . be here. He shouldn’t be going through this.” PCR Tr. at 47.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1477 | April 21, 2020                      Page 9 of 18
               ***


               [Ronyai] did not come forward to testify until after his appeal
               was lost and his [PCR] denied. He had nothing to lose by
               testifying at the hearing. Such testimony is inherently suspect. . . .
               Such testimony is not “newly discovered” evidence and should
               be given no weight in this case. And assuming it is considered,
               [Ronyai’s] testimony was not “worthy of credit.”


       Appealed Order at 5-6, 8. Rush now appeals.



                                 Discussion and Decision
                 I. Post-Conviction Relief Standard of Review
[16]   Post-conviction proceedings are civil in nature and the petitioner must therefore

       establish his claims by a preponderance of the evidence. Ind. Post-Conviction

       Rule 1(5). “Post-conviction proceedings do not afford the petitioner an

       opportunity for a super appeal, but rather, provide the opportunity to raise

       issues that were unknown or unavailable at the time of the original trial or the

       direct appeal.” Turner v. State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012), trans.

       denied. To prevail on appeal, the petitioner must show that the evidence as a

       whole leads unerringly and unmistakably to a conclusion opposite that reached

       by the post-conviction court. Hall v. State, 849 N.E.2d 466, 469 (Ind. 2006). This

       court will not reweigh the evidence or reassess the credibility of the witnesses

       and we consider only the evidence and reasonable inferences supporting the

       judgment. Id. at 468-69. We do not defer to the post-conviction court’s legal

       conclusions but do accept its factual findings unless they are clearly erroneous.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1477 | April 21, 2020   Page 10 of 18
       Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002), cert. denied, 540 U.S. 830

       (2003).


                    II. Ineffective Assistance of Trial Counsel
[17]   Rush first contends the post-conviction court erred in denying his petition for

       PCR on his claim that he received ineffective assistance of trial counsel. We

       review claims of ineffective assistance of trial counsel under the two-prong test

       announced in Strickland v. Washington, 466 U.S. 668 (1984). Kubsch v. State, 934

       N.E.2d 1138, 1147 (Ind. 2010). To prevail on a claim of ineffective assistance of

       counsel, the petitioner must show his trial counsel’s performance was deficient

       and counsel’s deficient performance prejudiced him. Strickland, 466 U.S. at 687.

       To satisfy the first prong, the petitioner must show counsel’s representation fell

       below an objective standard of reasonableness and counsel committed errors so

       serious petitioner did not have “counsel” guaranteed by the Sixth Amendment

       to the United States Constitution. Garrett v. State, 992 N.E.2d 710, 718-19 (Ind.

       2013). To satisfy the second prong, the petitioner must show a reasonable

       probability that, but for counsel’s deficient performance, the result of the

       proceeding would have been different. Id. at 719. “A reasonable probability is a

       probability sufficient to undermine confidence in the outcome.” Strickland, 466

       U.S. at 694. These two prongs are separate and independent inquires. Manzano

       v. State, 12 N.E.3d 321, 326 (Ind. Ct. App. 2014), trans. denied, cert denied, 135

       S.Ct 2376 (2015). Therefore, “if it is easier to dispose of an ineffectiveness claim

       on one of the grounds instead of the other, that course should be followed.”

       Talley v. State, 736 N.E.2d 766, 769 (Ind. Ct. App. 2000).

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1477 | April 21, 2020   Page 11 of 18
[18]   We recognize a strong presumption counsel rendered adequate legal assistance

       and afford trial counsel “considerable discretion in choosing strategy and

       tactics, and we will accord those decisions deference.” Timberlake v. State, 753

       N.E.2d 591, 603 (Ind. 2001), cert denied, 537 U.S. 839 (2002). In order to

       overcome this strong presumption, a petitioner must offer “strong and

       convincing evidence” to the contrary. Smith v. State, 822 N.E.2d 193, 202 (Ind.

       Ct. App. 2005), trans. denied.


[19]   Rush contends that Mendes was ineffective for allegedly failing to adequately

       investigate a potentially exculpatory witness – Brigitte Winters – whose

       testimony he believes would have likely acquitted him of dealing in cocaine at

       4210 Carrollton.5 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). Establishing failure to investigate as a

       ground for ineffective assistance of counsel requires going beyond the trial

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

       McKnight v. State, 1 N.E.3d 193, 201 (Ind. Ct. App. 2013). “This is necessary

       because success on the prejudice prong of an ineffectiveness claim requires a

       showing of a reasonable probability affecting the result.” Id. (citation omitted).




       5
        Although Rush’s prayer for relief in this appeal is that “his convictions and sentences” be vacated, Brief of
       Appellant at 35, other than two peripheral mentions of the Trailblazer, he has not argued that Winters’ or
       Ronyai’s testimony would entitle him to relief on convictions related to drugs found in the vehicle.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1477 | April 21, 2020                    Page 12 of 18
[20]   In the instant case, the State agreed that they did not reveal Winters’ name until

       the day of Rush’s trial. Before trial, Winters was referred to only as a

       “confidential informant” by the State when revealing her existence to defense

       counsel. This would suggest that Rush’s trial counsel would not have known to

       interview Winters because of her status. On the other hand, although the record

       is unclear whether anyone else knew Winters was in the house when the

       warrant was served, at least one person (Ronyai, but also from Winters’

       testimony at the PCR hearing, Rush) knew she was at the house earlier and she

       was a regular purchaser. Thus, Rush could have had some idea of who the

       “confidential informant” was to inform his trial counsel to investigate Winters.

       But regardless of the question of deficient performance, Rush has not shown

       how he was prejudiced by his trial counsel’s performance. See Young v. State,

       746 N.E.2d 920, 927 (Ind. 2001) (explaining that it was not necessary to address

       the allegations of deficient performance where the petitioner had failed to

       establish prejudice and affirming the trial court’s denial of PCR); Strickland, 466

       U.S. at 697 (explaining that “[i]f it is easier to dispose of an ineffectiveness

       claim on the ground of lack of sufficient prejudice, which we expect will often

       be so, that course should be followed”).


[21]   Rush cannot prove that he was prejudiced because Winters was not an

       exculpatory witness as he claims. Notwithstanding that the State represented at

       trial that Winters would testify she purchased cocaine from Ronyai, Winters

       testified at the post-conviction hearing that she knew Rush because he

       previously sold crack to her and that she had gone to 4210 Carrollton on March


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1477 | April 21, 2020   Page 13 of 18
       8, 2010 mainly to purchase crack from Rush. It is true that Winters became

       confused about who actually sold her crack on March 8 as her testimony

       continued, but she averred that she dealt with Rush on most occasions. See

       PCR Tr. at 23. Nonetheless, Winters’ testimony would have established a clear

       nexus between Rush and drugs being sold out of 4210 Carrollton, which would

       have been evidence unfavorable to Rush. Rush’s claim that Winters’ testimony

       is credible only to implicate Ronyai as the sole person at 4210 Carrollton on

       March 8 who was responsible for the drugs is an invitation for us to reassess the

       credibility of the witnesses – an invitation that we cannot accept. See Hall, 849

       N.E.2d at 469.


[22]   Moreover, even if Winters had testified at trial that Ronyai sold her the drugs

       and was the only person in the house with her on March 8 when the drugs were

       found, the remaining evidence does not support a reasonable probability that

       the result would have been different – that is, that Rush would have been

       acquitted of dealing in cocaine from 4210 Carrollton. Rush has some possessory

       interest in 4210 Carrollton. BMV records show 4210 Carrollton as Rush’s last

       known address. While detectives surveilled the house, they noticed Rush

       emerge from the house and return to it several times. During this same time,

       they observed conduct characteristic of people purchasing drugs from that

       location. When detectives conducted a traffic stop after Rush left the house in a

       vehicle, they found Rush in possession of large amounts of cash. When

       detectives later executed a search warrant on 4210 Carrollton, they discovered a

       large quantity of drugs, paraphernalia, and weapons. In light of this evidence, a


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1477 | April 21, 2020   Page 14 of 18
       reasonable factfinder could conclude that the evidence was sufficient to support

       Rush’s convictions even if Winters had testified at trial as she did at the PCR

       hearing.


[23]   In the circumstances surrounding this case, Rush has failed to show prejudice,

       that is, that Winters’ testimony would have resulted in a different outcome.

       Therefore, he has failed to meet his burden of proving by a preponderance of

       the evidence that his trial counsel was ineffective. Thus, the post-conviction

       court did not err in denying him relief on this issue.6


                              III. Newly Discovered Evidence
[24]   Rush next argues that the post-conviction court erred in determining that

       Ronyai’s testimony did not constitute newly discovered evidence. We disagree.


[25]   In Indiana, new evidence will mandate a new trial only when the petitioner

       demonstrates 1) the evidence has been discovered since the trial, 2) it is material

       and relevant, 3) it is not cumulative, 4) it is not merely impeaching, 5) it is not

       privileged or incompetent, 6) due diligence was used to discover it in time for

       trial, 7) the evidence is worthy of credit, 8) it can be produced upon a retrial of

       the case, and 9) it will probably produce a different result at retrial. Carter v.

       State, 738 N.E.2d 665, 671 (Ind. 2000). We “analyze[] these nine factors with




       6
         Rush alternatively argued in his petition for relief that Winters’ testimony was newly discovered evidence,
       but he failed to present that as a separate issue on appeal and therefore, we need not discuss whether Winters’
       testimony constituted newly discovered evidence.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1477 | April 21, 2020                   Page 15 of 18
       care, as the basis for newly discovered evidence should be received with great

       caution and the alleged new evidence carefully scrutinized.” Taylor v. State, 840

       N.E.2d 324, 330 (Ind. 2006) (quotation omitted). “The burden of showing that

       all nine requirements are met rests with the petitioner for post-conviction

       relief.” Id. (emphasis added).


[26]   The post-conviction court determined that Rush failed to prove at least one of

       the nine requirements: that Ronyai’s testimony was worthy of credit. The nine

       factors enumerated in Carter for newly discovered evidence are written in the

       conjunctive and therefore, if Rush failed to prove any one requirement, his

       claim fails. Whether a witness’s testimony at a post-conviction hearing is

       worthy of credit is a factual determination to be made by the post-conviction

       court which has the opportunity to see and hear the witness testify. McVey v.

       State, 863 N.E.2d 434, 446 (Ind. Ct. App. 2007), trans. denied. It is not within an

       appellate court’s province to replace a post-conviction court’s assessment of

       credibility with its own. State v. McCraney, 719 N.E.2d 1187, 1191 (Ind. 1999).


[27]   The post-conviction court found that Ronyai’s testimony was “inherently

       suspect” because he had nothing to lose by testifying at the hearing. Appealed

       Order at 8. Ronyai, who understandably did not testify at trial, testified at the

       PCR hearing that he did not see Rush at 4210 Carrollton on March 8 and that

       the drugs found there were his. He also testified Rush was not involved with

       drugs. Ronyai only testified at the PCR hearing after being notified of Rush’s

       extensive sentence; Ronyai did not believe Rush (his cousin) deserved to be

       incarcerated. Ronyai has nothing to lose by claiming he alone sold drugs from

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1477 | April 21, 2020   Page 16 of 18
       4210 Carrollton because he is currently serving an executed sentence, his direct

       appeal was unsuccessful, and the denial of his PCR petition is final.7


[28]   This case is similar to Birkla v. State, 272 Ind. 117, 396 N.E.2d 115 (1979).

       Birkla and his co-defendant were charged with murder. Birkla was granted a

       separate trial and was tried before his co-defendant. Birkla’s co-defendant did

       not testify at his trial. After Birkla was convicted of murder and sentenced to life

       imprisonment, his co-defendant pleaded guilty to voluntary manslaughter.

       Birkla filed a petition for PCR alleging that newly discovered evidence from his

       co-defendant existed. At the post-conviction hearing, Birkla’s co-defendant

       testified that he was the sole perpetrator and that Birkla was not involved in the

       crime. The post-conviction court denied his petition and concluded,


                [Co-defendant] was tried after [Birkla], did not testify at the
                original trial of [Birkla] and was allowed to plead guilty to
                voluntary manslaughter. A witness under these circumstances
                has very little, if anything, to lose by now admitting complete
                responsibility for the crimes with which he and [Birkla] were
                charged, making it in my opinion not worthy of credit and
                therefore not likely to produce a different result in the trial of
                [Birkla].




       7
         Ronyai was charged with crimes similar to Rush. Ronyai was tried alongside Rush and was also found
       guilty of several charges, including dealing in cocaine at 4210 Carrollton. Ronyai’s conviction for dealing in
       cocaine was affirmed on direct appeal. See Thompson v. State, 966 N.E.2d 112, 124 (Ind. Ct. App. 2012),
       trans. denied. Ronyai filed a petition for PCR, but his petition was denied on May 13, 2014. See Thompson v.
       State, Cause No. 49G20-1003-PC-23467; see also PCR Tr. at 51. He did not appeal the post-conviction
       decision and the time to seek an appeal has lapsed.



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1477 | April 21, 2020                    Page 17 of 18
       Id. at 118, 396 N.E.2d at 116. On appeal, our supreme court affirmed the

       decision of the post-conviction court. Here, too, Ronyai has exhausted all of his

       legal remedies and therefore, he has nothing to lose by taking responsibility for

       the drugs found inside 4210 Carrollton. Given our deferential standard of

       review, we conclude that the post-conviction court did not err in denying Rush

       relief on this issue.8



                                                  Conclusion
[29]   Our review of the post-conviction court’s judgment does not leave us with the

       belief that a mistake has been made: Rush has not shown by a preponderance of

       evidence that the evidence as a whole leads unerringly and unmistakably to the

       conclusion that his counsel was ineffective for allegedly failing to investigate

       Winters or that Ronyai’s testimony constituted newly discovered evidence. We

       therefore affirm the post-conviction court’s order denying Rush’s petition for

       post-conviction relief.


[30]   Affirmed.


       Bradford, C.J., and Altice, J., concur.




       8
        Rush also argues that the cumulative effect of his trial counsel’s alleged failure to investigate Winters and
       Ronyai’s admission entitles him to relief. Specifically, he contends that “[m]ost cases don’t involve two
       previously-unheard witnesses, one the result of ineffective assistance of counsel and the other the Fifth
       Amendment rights of a co-defendant.” Br. of Appellant at 34. However, as discussed above, we have found
       no error in either respect and therefore, Rush is not entitled to the relief he seeks.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1477 | April 21, 2020                    Page 18 of 18
