MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              Sep 23 2016, 9:13 am

regarded as precedent or cited before any                               CLERK
                                                                    Indiana Supreme Court
court except for the purpose of establishing                           Court of Appeals
                                                                         and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                          Gregory F. Zoeller
Brownsburg, Indiana                                      Attorney General of Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Abdullah Alkhalidi,                                      September 23, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         71A03-1602-PC-377
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jane Woodward
Appellee-Respondent                                      Miller, Judge
                                                         Trial Court Cause No.
                                                         71D01-1011-PC-53



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-377 | September 23, 2016    Page 1 of 18
[1]   Abdullah Alkhalidi appeals the denial of his petition for post-conviction relief,

      arguing that the post-conviction court erroneously determined that his trial

      attorney was not ineffective. Finding no error, we affirm.


                                                           Facts
[2]   In November 1999, the State charged Alkhalidi with murder, class D felony

      theft, felony murder, class A felony attempted robbery, and class A felony

      robbery. After a jury trial in 2000, Alkhalidi was convicted of murder, robbery,

      and theft. The trial court sentenced Alkhalidi to an aggregate sentence of sixty-

      five years imprisonment, and after a direct appeal, our Supreme Court affirmed

      the convictions. Alkhalidi v. State, 753 N.E.2d 625 (Ind. 2001) (Alkhalidi I). In

      2002, Alkhalidi filed a petition for post-conviction relief, which the trial court

      granted, ordering a new trial.


[3]   After the new trial was ordered, Alkhalidi’s attorney withdrew. On June 21,

      2007, the trial court appointed Phillip Skodinski to represent Alkhalidi.

      Eventually, Skodinski retained private investigators Howard Radde and Fred

      Franco, Jr.,1 to help with Alkhalidi’s case.


[4]   On September 13, 2007, the deputy prosecutor sent a letter to Skodinski,

      offering a plea agreement. The prosecutor stated that if Alkhalidi would plead

      guilty to class A felony robbery and class D felony auto theft, the State would




      1
          Franco is also a licensed attorney but worked only as a private investigator on Alkhalidi’s case.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-377 | September 23, 2016                Page 2 of 18
      dismiss the remaining charges. The letter gave a deadline of September 21,

      2007, for Alkhalidi’s response to the offer. Jail records show that Franco visited

      with Alkhalidi on September 12 and 18, 2007; the visitor log does not show that

      Skodinski visited during this timeframe. Radde was also present at these

      visits—the log does not show that he was in attendance—and his invoice stated,

      “9/18/07…Met with Defendants [sic] attorney at jail[.]” PCR Ex. 1. Radde’s

      invoice also stated that on September 25, 2007, he “visit[ed] jail to discuss plea

      offer by State[.]” Id. The jail did not log incoming mail addressed to the

      inmates, though Alkhalidi later testified that he never received any mail from

      Skodinski while awaiting the retrial.


[5]   On October 1, 2007, Alkhalidi moved to replace Skodinski, alleging that

      Skodinski was unprepared and had failed to communicate adequately with

      Alkhalidi. The trial court scheduled a hearing on Alkhalidi’s motion for

      October 16, 2007. On October 9, 2007, Alkhalidi sent a letter to the trial court

      stating that “on 9-20-2007 PD Skodinski advised me of the State plea offer to

      crimes ‘charges’ [sic] that was dismissed by the court on November 5, 1999[.]”

      Id. At the hearing on Alkhalidi’s motion, the following discussion occurred:


              Alkhalidi:       . . . [F]rom the period of late August and early
                               September, was there is a plea negotiation between
                               my attorney. Which is the only thing I’m aware of
                               is there is a plea investigation. In September 24,
                               you know, I noticed that. They can’t let me know,
                               say, well, this is what they offer you. They offer
                               you a class B, you know, a class A, you know.



      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-377 | September 23, 2016   Page 3 of 18
                                                ***


        Prosecutor: The problem, yes, we did send a letter to Mr.
                    Skodinski. . . . [w]ith a timeline on it, with a plea
                    offer, and it was told to us that he had no interest in
                    it.


        Alkhalidi:       Oh, that’s correct. I have not get the letter. The
                         letter, you know, I specifically, because if there’s
                         negotiation, if there is a period, I was supposed to
                         be involved. I’m supposed to know that—


        Court:           He transmitted it to you.


        Alkhalidi:       No.


        Court:           He told you about it.


        Alkhalidi:       Yes, he told me about it.


        Court:           Yeah.


        Alkhalidi:       But that was exactly the date. I mean, the time’s
                         already expired, and it’s for the crime is not even on
                         the [inaudible]. The crime has to be dismissed, in
                         ’99.


        Court:           Well that doesn’t really—I mean you can plead to
                         things that aren’t currently filed. People can plead
                         to things that aren’t currently filed.


        Alkhalidi:       No. The state has to file a motion to dismiss the
                         charges, and it was dismissed by the Court.

Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-377 | September 23, 2016   Page 4 of 18
        Court:           But they can refile that charge, and you can plead to
                         that.


        Alkhalidi:       That’s true, within the statute of limitations. I
                         mean, because I was charged with a class D felony,
                         and it’s [sic] nine years have passed.


        Court:           You can plead to anything that an agreement is
                         made to plead to.


        Alkhalidi:       Yeah, but I have to be aware of. Now you’re
                         bringing it to me after the deadline has passed. I
                         mean the invoice I got here, it says exactly. The
                         Court can read it.


                                                ***


        Court:           And you’re saying that you were never told about
                         this offer until after September 21st. Is that what
                         you’re saying to me?


        Alkhalidi:       Yes.


        Court:           But you’re also saying to me that you weren’t going
                         to accept the offer; is that right?


        Alkhalidi:       Because if I know what the offer is, you know—


        Court:           Okay. You know what the offer is. You know
                         what the offer is.


        Alkhalidi:       Exactly. And the offer, basically, it does not match
                         what I was charged with.

Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-377 | September 23, 2016   Page 5 of 18
              Court:           But, Mr. Alkhalidi, he has an obligation to tell you
                               which plea offers are made. He’s told you what
                               plea offer was made. You’re saying you’re not even
                               going to accept it anyway. So I’m not exactly
                               understanding. I’m not exactly understanding
                               where the problem is.


                                                      ***


              Alkhalidi:       . . . [N]egotiations is supposed to be as open and
                               counter offer. Only approach, she has one side.
                               You can take it or leave it.


              Court:           It can be either way.


              Alkhalidi:       Yeah. That’s what I’m asking for. You know, I
                               didn’t have that opportunity.


              Court:           Oh. You were going to make a counter offer? Well
                               why don’t you tell your attorney what the counter
                               offer is that you want to make, and I would imagine
                               that the state would listen to it.


      Retrial Tr. Addendum p. 126-131. Alkhalidi changed the subject to lack of

      communication with Skodinski and never explained what his counteroffer

      would have been. At the close of the hearing, the trial court denied Alkhalidi’s

      motion.


[6]   Following discovery, Alkhalidi’s retrial occurred in April 2008. Following the

      retrial, the jury found Alkhalidi guilty as charged and the trial court again

      imposed a sixty-five-year aggregate sentence. After Alkhalidi filed a direct

      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-377 | September 23, 2016   Page 6 of 18
      appeal, this Court affirmed and our Supreme Court denied transfer. Alkhalidi v.

      State, No. 71A03-0810-CR-481 (Ind. Ct. App. Aug. 27, 2009) (Alkhalidi II),

      trans. denied.


[7]   In November 2010, Alkhalidi filed a petition for post-conviction relief, and on

      April 28, 2014, Alkhalidi filed an amended petition. He raised multiple

      grounds for relief, though only one is relevant in this appeal—Skodinski’s

      alleged failure to inform Alkhalidi of the State’s plea offer before the response

      time had expired.


[8]   The post-conviction court held a hearing on Alkhalidi’s petition on November

      20, 2015. Alkhalidi did not subpoena Skodinski to testify at the hearing.

      Franco and Radde testified that they did not recall ever discussing a plea

      agreement with Alkhalidi. Alkhalidi testified that he learned of the plea offer in

      late September or early October, after the September 21 deadline. He also

      testified that, had he known of the offer, he would have accepted it or, “at the

      least, I will submit a counter offer.” PCR Tr. p. 64. But Alkhalidi also

      acknowledged the letter that he had written the trial court that stated he had

      learned about the plea offer on September 20, 2007. Id. at 75. He eventually

      backtracked from that letter, stating that he had gotten the date wrong. Id. at

      80. The State presented no evidence at the hearing. On January 19, 2016, the

      post-conviction court denied Alkhalidi’s petition, finding, in pertinent part, as

      follows:

                                              Findings of Fact


      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-377 | September 23, 2016   Page 7 of 18
                                                ***


        Alkhalidi claims that his lawyer never met with him in the time
        between when the [plea] offer was made and when it expired and
        that counsel never conveyed this offer to him.


        Petitioner supported this claim with both his testimony and the
        testimony of Fred Franco. . . . Franco’s testimony conflicts with
        a document in the court records. The document, a November 7,
        2007 invoice for Franco’s services, was submitted to the court for
        payment. The billing record itemized a September 18, 2007
        meeting at the jail with Franco and Skodinski, a meeting held
        only a few days after the plea offer was conveyed to counsel.
        According to that record, Mr. Skodinski and Franco met at the
        jail for ninety minutes. [fn 3] In addition, an invoice entry for
        September 25, 2007, notes that Franco again met with Alkhalidi
        and discussed the plea offer. Given the contradiction between
        Franco’s 2015 testimony and his 2007 billing records, the Court
        finds Franco’s post-conviction statements unpersuasive.


                 [fn 3] The jail log does not list Mr. Skodinski as a visitor.
                 Alkhalidi relied upon the jail log as proof his attorney did
                 not tell him about the plea offer.


        Petitioner’s claim also conflicts with a letter he sent to the court
        in October, 2007. . . . In the letter, Alkhalidi relayed a litany of
        complaints about his attorney’s performance. [The post-
        conviction court quotes the portion of the letter stating that
        Skodinski advised Alkhalidi of the plea offer on September 20,
        2007.] Although the October 10 letter contained a number of
        complaints, it did not include a complaint that the plea had been
        communicated to Alkhalidi after the offer had expired.


        . . . [At the hearing on Alkhalidi’s motion for a new attorney,] it
        was unclear whether Petitioner was more concerned that the

Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-377 | September 23, 2016   Page 8 of 18
        State’s offer had been belatedly conveyed to him, or whether
        Alkhalidi was more focused on his belief the offer was, in part,
        based on charges that had already been dismissed. . . .


                                                ***


        [The post-conviction court then spends significant time
        examining Alkhalidi’s testimony at his retrial, emphasizing that
        Alkhalidi asserted his innocence during the trial, at sentencing,
        and during post-conviction proceedings.]


                                                ***


                                      Conclusions of Law


                                                ***


        The evidence of the timing, transmittal and termination of the
        State’s plea offer to Alkhalidi is in conflict. Rather than focusing
        on counsel’s performance and deciding when Mr. Skodinski
        conveyed the state’s offer to Petitioner, the court can better
        address this claim by focusing on whether Petitioner would have
        been prejudiced by a failure to convey the offer in a timely
        manner. . . . If Alkhalidi was not prejudiced by his attorney’s
        alleged deficient performance, then Petitioner’s claim must fail.


                                                ***


        . . . Alkhalidi maintained his innocence throughout the course of
        the proceedings. Before trial, he sent a number of letters to the
        Court and to counsel professing his innocence. At trial,
        Alkhalidi raised his hand, promised to tell the truth, and sat in
        the witness chair. As Alkhalidi sat and testified, he repeatedly
        and robustly denied any role in the robbery and murder . . . .
Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-377 | September 23, 2016   Page 9 of 18
              [His testimony and protestations of innocence] lead this Court to
              conclude that Alkhalidi would not have accepted the State’s plea
              offer. Furthermore, if he had accepted the offer, he would have
              been required to provide an acceptable factual basis for a plea to
              a class A [felony] robbery. In light of Alkhalidi’s emphatic
              denials of involvement in [the] charged robbery, the Court would
              have been in legally treacherous water accepting a plea.


              Ultimately, Alkhalidi’s claims of innocence have presented a
              formidable barrier to persuasion that Petitioner has not
              overcome. Alkhalidi has failed to meet his burden of proof on
              the issue of prejudice.


      Appellant’s App. p. 8-23 (some footnotes omitted; emphases original).

      Alkhalidi now appeals.


                                   Discussion and Decision
[9]   The general rules regarding the review of a ruling on a petition for post-

      conviction relief are well established:

              “The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
              “When appealing from the denial of post-conviction relief, the
              petitioner stands in the position of one appealing from a negative
              judgment.” Id. To prevail on appeal from the denial of post-
              conviction relief, a petitioner must show that the evidence as a
              whole leads unerringly and unmistakably to a conclusion
              opposite that reached by the post-conviction court. Weatherford v.
              State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
              conviction court in this case made findings of fact and
              conclusions of law in accordance with Indiana Post–Conviction
              Rule 1(6). Although we do not defer to the post-conviction

      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-377 | September 23, 2016   Page 10 of 18
               court’s legal conclusions, “[a] post-conviction court’s findings
               and judgment will be reversed only upon a showing of clear
               error—that which leaves us with a definite and firm conviction
               that a mistake has been made.” Ben–Yisrayl v. State, 729 N.E.2d
               102, 106 (Ind. 2000) (quotation omitted).


       Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).


[10]   A claim of ineffective assistance of trial counsel requires a showing that: (1)

       counsel’s performance was deficient by falling below an objective standard of

       reasonableness based on prevailing professional norms; and (2) counsel’s

       performance prejudiced the defendant such that “‘there is a reasonable

       probability that, but for counsel's unprofessional errors, the result of the

       proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444

       (Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A

       reasonable probability arises when there is a ‘probability sufficient to undermine

       confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.

       2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two

       prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.

       Ct. App. 2012). However, “[i]f we can easily dismiss an ineffective assistance

       claim based upon the prejudice prong, we may do so without addressing

       whether counsel's performance was deficient.” Baer v. State, 942 N.E.2d 80, 91

       (Ind. 2011). “Indeed, most ineffective assistance of counsel claims can be

       resolved by a prejudice inquiry alone.” French v. State, 778 N.E.2d 816, 824

       (Ind. 2002).



       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-377 | September 23, 2016   Page 11 of 18
[11]   We agree with the post-conviction court that this case can and should be

       dispensed with on the prejudice prong of the Strickland test. With respect to

       prejudice, a defendant who claims his attorney was ineffective for failing to

       inform the defendant of a plea offer must show that (1) there was a reasonable

       probability that he would have accepted the plea offer had his attorney told him

       about it, and (2) the plea offer would have been accepted by the trial court.

       Missouri v. Frye, 132 S.Ct. 1399, 1411 (2012) (applying and interpreting

       Strickland); see also Lafler v. Cooper, 132 S.Ct. 1376, 1391 (2012) (noting

       defendant’s obligation to show a reasonable probability that he and the trial

       court would have accepted the guilty plea had it been communicated to him by

       his attorney). A defendant who proves deficient performance and provides

       proof of a sentencing disparity between an offer and the charged offenses may

       have a prima facie case establishing prejudice. Woods v. State, 48 N.E.3d 374,

       383 (Ind. Ct. App. 2015). But a post-conviction court is neither required to

       ignore other evidence that may exist in the record nor grant relief on this bare

       showing of a prima facie case alone. Lafler, 132 S.Ct. at 1385 (noting that other

       evidence, such as proof of intervening circumstances or the court’s perspective

       regarding the terms of the plea offer, may also be considered in deciding a

       Strickland prejudice claim).


[12]   Initially, we note that the record is wholly opaque as to whether Alkhalidi

       would have accepted the plea offer. At a hearing before the retrial, Alkhalidi

       testified that he would not have accepted the plea offer because “it does not

       match what I was charged with.” Retrial Tr. Addendum p. 130. He also


       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-377 | September 23, 2016   Page 12 of 18
       complained that the statute of limitations had passed for the charges to which

       he would have pleaded guilty under the offer. Id. at 127-28. Alkhalidi

       indicated that he may have wanted to make a counteroffer to the prosecution,

       but changed the subject when asked what the counteroffer would have been. Id.

       at 131. Then, at the post-conviction hearing, Alkhalidi equivocated on whether

       he would have accepted the plea offer. Initially, he testified that he would have

       accepted it, but then stated “at the least, I will submit a counter offer” and that

       “I would either offer a counter offer to that offer or accept.” PCR Tr. p. 63, 66.


[13]   To determine whether Alkhalidi sufficiently showed that he would have

       accepted the plea deal, we must also examine the underlying facts of the

       offenses and his pre- and post-retrial statements. As described by this Court in

       Alkhalidi II, the facts of Alkhalidi’s offenses are as follows:


               On May 2, 1999, Claude Purdiman (“Purdiman”) and his
               brother, Terrance Purdiman (“Terrance”), were at the home of
               their father. Purdiman showed Terrance and his father $3,000
               and said that he was going to the Blue Chip Casino in Michigan
               City, Indiana. Purdiman and Terrance left their father's house at
               the same time in separate cars. Terrance went to Benton Harbor
               and Purdiman turned off the highway to go to the casino. A
               surveillance tape from the Blue Chip Casino showed Alkhalidi
               and Purdiman leaving the casino at the same time around 2:37 in
               the morning on May 3, 1999.


               On May 3, 1999, around 12:30 or 1:00 p.m., Purdiman spoke
               with Kimberly Holmes and Marjorie Scott in South Bend,
               Indiana. Purdiman said that he was going over to Alkhalidi’s
               house because they were going back to the gambling boat.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-377 | September 23, 2016   Page 13 of 18
        On May 4, 1999, a neighbor saw Alkhalidi washing and
        shampooing the inside of his car and scrubbing the mats of his
        car. That same day, Alkhalidi went to the Blue Chip Casino and
        “bought in” for $1,600, which was unusual for him because his
        typical “buy in” was fifty to one hundred dollars. Transcript at
        956–957.


        After being unable to reach Purdiman, Terrance and Chantae
        Taylor, Purdiman’s girlfriend, filed a report with the Elkhart
        Police on May 6, 1999. Taylor and Terrance went through some
        of Purdiman's personal effects at Taylor’s house and found a
        piece of paper with Alkhalidi’s phone number on it.


        On May 8, 1999, a call was placed from Purdiman’s cell phone at
        11:01 p.m. to Dawn Schooley, a woman that Alkhalidi had a
        child with in 1997. That same day, the Berrien County Sheriff’s
        Department in Michigan received a call that a body was found in
        the woods. The body was partially burned. The police identified
        the body as Purdiman. Purdiman died due to a gunshot wound
        to the head, which was caused by a .44 caliber or .45 caliber
        bullet. Purdiman’s vehicle was discovered in Michigan, and it
        did not have a license plate.


        The police spoke to a casino employee who identified the man on
        the video as Alkhalidi, and the police obtained Alkhalidi’s
        address from his gaming card. The Berrien County Sheriff’s
        Department contacted the Indiana authorities after obtaining
        Alkhalidi’s name.


        On May 13, 1999, Detective Dave Roseneau of the Berrien
        County Sheriff's Department and members of the State Police
        observed Alkhalidi’s residence in South Bend, Indiana. Alkhalidi
        drove up to his residence and exited his vehicle. While detectives
        spoke with Alkhalidi, Detective Roseneau saw Purdiman’s


Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-377 | September 23, 2016   Page 14 of 18
               license plate sitting in the trunk of Alkhalidi’s vehicle, which was
               open and did not have a trunk liner.


               The detectives asked Alkhalidi about the license plate. Alkhalidi
               became “very, very nervous” and then became “very
               argumentative.” Transcript at 674. The detectives asked to see
               Alkhalidi's driver’s license. Alkhalidi bent into his vehicle and
               got a planner out and “was acting like he was going to show” the
               officers his driver’s license. Id. at 541. Alkhalidi then began
               patting around on the seat until Detective Roseneau said, “That's
               enough. Get out of there.” Id. Alkhalidi attempted to grab the
               license plate out of the car. Alkhalidi came out of the car, shoved
               Detective Roseneau to the ground, and ran. The detectives
               chased after Alkhalidi until a bystander tackled Alkhalidi.


               After obtaining a search warrant for Alkhalidi’s house and
               vehicle, the police discovered the trunk liner in a trash can. The
               police recovered a bottle of ammonia and Purdiman’s license
               plate from the trunk of Alkhalidi’s vehicle. The police also
               discovered a Ruger nine-millimeter handgun, a .45 caliber
               cartridge, a .45 caliber spent case, a bullet, and Purdiman’s
               driver’s license in Alkhalidi’s vehicle. The police discovered
               ammonia, wash cloths or towels, a shirt, an empty “Blue Chip
               matchbook,” and a partially burnt piece of paper that had the
               word “Blue” on it in a trash can. Id. at 840. The police also
               discovered an item from the Blue Chip Casino with Purdiman’s
               name on it. Purdiman’s blood was detected on the floor mat, the
               towel, the paper towels, a t-shirt, the trunk mat, and the floor
               carpeting from the passenger seat. Alkhalidi’s fingerprint was
               discovered on the cartridge holder.


       Alkhalidi II, No. 71A03-0810-CR-481, at *1-*2.


[14]   Before Alkhalidi’s retrial, he sent multiple letters to the trial court and to his

       attorney professing his innocence. Appellant’s App. p. 175. Alkhalidi then
       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-377 | September 23, 2016   Page 15 of 18
       testified at his retrial. He admitted that he was acquainted with Purdiman. He

       stated that on the night of Purdiman’s death, Alshamari was driving Alkhalidi’s

       vehicle, a Nissan, with Purdiman as the sole passenger, and Alkhalidi was

       following behind them in a Camaro. According to Alkhalidi, he observed a

       flash and the sound of a gunshot in the Nissan, which was on the road in front

       of him. They pulled over and Alkhalidi approached the Nissan, observing

       Purdiman, who appeared to be dead. Alshamari admitted to shooting

       Purdiman. Alkhalidi and Alshamari put Purdiman’s body in the trunk of the

       Nissan, drove away, and eventually left Purdiman’s body in a wooded area.

       Alkhalidi denied any involvement in the murder, the burning of the body, or

       the robbery. He stated that later, Alshamari gave Alkhalidi money to gamble

       with, but Alkhalidi did not know where the money was from. Alkhalidi

       testified that he had no idea how any incriminating evidence had made its way

       into the Nissan, the Camaro, or the trash receptacle by his house, and that his

       fingerprint was on the ammunition holder because police had told him to hold

       it in his hand during an interview.


[15]   At the sentencing hearing, Alkhalidi continued to maintain his innocence on all

       charged offenses. Finally, when Alkhalidi filed his initial petition for post-

       conviction relief, he alleged that his attorney had been ineffective for failing “to

       advocat [sic] actual innocence claim of Petitioner Alkhalidi.” Appellant’s App.

       p. 173.


[16]   This Court considered a similar set of circumstances in Jervis v. State, 28 N.E.3d

       361 (Ind. Ct. App. 2015), trans. denied. In Jervis, the defendant sought post-

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-377 | September 23, 2016   Page 16 of 18
       conviction relief because, among other things, he argued that his trial counsel

       was ineffective by failing to recommend that Jervis accept a plea offer. This

       Court notes that the record established that Jervis “clearly and expressly, on

       many occasions, professed his innocence and had no intention of pleading

       guilty. From his second trial leading up to his direct appeal, Jervis advanced an

       innocence claim.” Id. at 367. Under these circumstances, this Court found that

       the defendant had failed to establish that he would have accepted the plea deal

       and that the trial court would have accepted the guilty plea over protestations of

       innocence. Therefore, this Court affirmed the finding that Jervis failed to show

       ineffective assistance of trial counsel on this basis.


[17]   To sum up, the record in this case establishes the following facts:


            Leading up to the retrial, Alkhalidi repeatedly and insistently maintained
             his innocence in letters to the trial court and to counsel.
            Leading up to the retrial, Alkhalidi told the trial court that he would not
             have accepted the plea offer because it contained offenses he had not
             been charged with and because of his belief that the statute of limitations
             had expired.
            At the retrial, Alkhalidi testified that he was wholly innocent of the
             murder and robbery charges.
            At the sentencing hearing, Alkhalidi testified that he was wholly
             innocent of the murder and robbery charges.
            In his petition for post-conviction relief, Alkhalidi alleged that his trial
             attorney had been ineffective for failing to fully litigate a theory of
             innocence.
            At the post-conviction hearing, Alkhalidi was equivocal as to whether he
             would have accepted the plea offer, testifying that he would have made a
             counteroffer (which the State would have been in no way required to
             accept, and nothing in the record indicates that the State would have
             done so).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-377 | September 23, 2016   Page 17 of 18
       The robbery count, to which Alkhalidi would have pleaded guilty pursuant to

       the plea offer, alleged that Alkhalidi knowingly took money from Purdiman by

       using force (firing a gun) at Purdiman, causing him serious bodily injury

       (death). Given that Alkhalidi repeatedly and emphatically stated that he was

       innocent of the murder and robbery charges before, during, and after the retrial,

       we find that he has not established that he would have accepted the plea offer.

       Additionally, we find that he has not established that the trial court would have

       accepted the guilty plea given Alkhalidi’s many protestations of innocence.


[18]   Therefore, we find that the post-conviction court did not err by finding that

       Alkhalidi failed to show any prejudice as a result of his attorney’s alleged failure

       to inform him of the guilty plea and that, as a result, he has not established that

       he received the ineffective assistance of counsel. In other words, we find that

       the post-conviction court did not err by denying Alkhalidi’s petition for post-

       conviction relief.


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


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




       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-377 | September 23, 2016   Page 18 of 18
