                                                                                 FILED
                                                                             Oct 16 2018, 8:45 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Marielena Duerring                                         Curtis T. Hill, Jr.
      South Bend, Indiana                                        Attorney General of Indiana

                                                                 Monika Prekopa Talbot
                                                                 Supervising Deputy Attorney
                                                                 General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Steven Bethel,                                             October 16, 2018
      Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                 18A-PC-117
              v.                                                 Appeal from the St. Joseph
                                                                 Superior Court
      State of Indiana,                                          The Honorable Elizabeth C.
      Appellee-Respondent.                                       Hurley, Judge
                                                                 Trial Court Cause No.
                                                                 71D08-1604-PC-46



      Barteau, Senior Judge.


                                       Statement of the Case
[1]   Steven Bethel appeals the denial of his successive petition for post-conviction

      relief. We affirm.



      Court of Appeals of Indiana | Opinion 18A-PC-117 | October 16, 2018                            Page 1 of 16
                                                       Issue
[2]   Bethel raises one issue, which we restate as: whether the post-conviction court

      erred in denying his claim of ineffective assistance of trial counsel.


                                Facts and Procedural History
[3]   The facts of Bethel’s case, as stated by the Indiana Supreme Court, are as

      follows:


              [O]n March 5, 1991, the defendant agreed to assist Curtis
              Crenshaw in obtaining money and [ ] they went to the J & S
              Dairy Mart in South Bend, Indiana, at approximately 11:20 p.m.
              Armed with handguns, they approached Robaska and Wrobel,
              two store employees, as they were closing the store. The
              defendant held a gun to Robaska’s head, Crenshaw grabbed
              Wrobel, and together they forced the two clerks back into the
              store. The defendant and Crenshaw tried unsuccessfully to
              obtain cash from the safe. One of the robbers threatened to shoot
              Robaska. They also forced Wrobel to empty his pockets, but he
              had no cash. The defendant and Crenshaw then took the two
              clerks back outside, told them to lie on the ground behind an ice
              machine, and began walking away. Robaska and Wrobel got up
              and observed the defendant and Crenshaw. Describing the
              ensuing events, Wrobel testified:

              They were about fifteen feet away, and [Crenshaw] turned
              around, and he pointed the gun at us, and I grabbed Patty
              [Robaska] and pulled her back down because I knew what comes
              out of a gun. And we laid there, and we heard a fire.

              There was no testimony as to the length of time that elapsed
              between the time Wrobel and Robaska went back down to the
              ground and the time the shot was fired. No witnesses testified as
              to the position of Crenshaw’s weapon or the direction it was
              pointed when fired. There was no injury to either Robaska or
      Court of Appeals of Indiana | Opinion 18A-PC-117 | October 16, 2018      Page 2 of 16
        Wrobel, nor was there evidence of bullet damage to the ice
        machine or surrounding area. No bullet was recovered.

        Approximately ten minutes later, the defendant and Crenshaw
        entered the Burger Dairy store in South Bend and found three
        men inside. They robbed the three at gunpoint, taking cash from
        the register and a wallet from one of the men. During the
        robbery, Charles Flora attempted to enter the store, and the
        defendant pointed a gun at him. Flora ran to his van in the
        parking lot and called the police from his van. The defendant
        and Crenshaw came out of the store while Flora was still in the
        lot. The direct examination of Flora includes the following:

        [Prosecutor] Did—before you were shot at, did you see the
        people that came out of the store? You said you saw them, right?

        [Flora] When they both ran out of the store, they both looked
        directly at my van.

        [Prosecutor] Did you see whether they had anything in their
        hands?

        [Flora] They had a gun in their hand.

        [Prosecutor] Both of them?

        [Flora] I’m not sure if both of them did. One I know did.

        [Prosecutor] Was the gun pointed at you?

        [Flora] When they ran out, no.

        [Prosecutor] At some point in time, was it?

        [Flora] Yes.

        [Prosecutor] When was that?

        [Flora] They was partly across the drive lot, and they pointed at
        my van, and I heard two or three shots. I know it was more than
        one shot.
Court of Appeals of Indiana | Opinion 18A-PC-117 | October 16, 2018     Page 3 of 16
              [Prosecutor] What did you do?

              [Flora] Well, I got down in my van and proceeded to go back up
              onto the lot because I didn’t know what to do.

              Neither Flora nor his van was hit, and no bullets were ever
              found. Although Flora stated at trial that he did not see and was
              “not sure” which of the two men shot at him, record at 681, he
              testified that he gave a statement to police within about an hour
              of the shooting in which he identified Crenshaw as the person
              who shot at him. As the defendant and Crenshaw attempted to
              flee, they successively encountered two police officers and fired
              shots at each officer.

      Bethel v. State, 730 N.E.2d 1242, 1244-45 (Ind. 2000) (footnotes and record

      citations omitted).


[4]   Officers captured Bethel and Crenshaw after a car chase, which ended when

      Crenshaw crashed the car. During the chase, an officer saw Bethel throw

      something out of the car. A police officer with a K-9 unit later searched the

      area and found a revolver. The same officer found a second revolver near the

      Burger Dairy store. Robert Lucas, who worked at the Burger Dairy store,

      recognized the revolvers as the guns that were used in the attempted robbery.


[5]   The State charged Bethel with two counts of attempted robbery, two counts of

      robbery, and four counts of attempted murder. The State further alleged he was

      an habitual offender. Bethel was tried by jury and testified in his own defense,

      claiming Crenshaw forced him under threat of death to accompany him as he

      committed the offenses. The jury determined Bethel was guilty as charged and

      was also an habitual offender. The trial court sentenced Bethel to 120 years.


      Court of Appeals of Indiana | Opinion 18A-PC-117 | October 16, 2018      Page 4 of 16
[6]   Bethel belatedly appealed. The Indiana Supreme Court reversed two of the

      counts of attempted murder, determining that there was insufficient evidence to

      prove that he had attempted to kill Robaska and Flora. Id. at 1246. The Court

      affirmed his other convictions. The reversal of the two convictions resulted in

      Bethel’s sentence being reduced to 102 years.


[7]   Next, Bethel filed a petition for post-conviction relief in Cause Number 71D08-

      0502-PC-10. The post-conviction court denied Bethel’s petition in 2012, and he

      appealed. Bethel claimed on appeal that the trial court had erred in admitting

      certain evidence and in determining that he was an habitual offender. A panel

      of this Court issued a memorandum decision affirming the post-conviction

      court’s judgment, concluding both claims were waived for post-conviction

      review. Bethel v. State, No. 71A03-1203-PC-139 (Ind. Ct. App. Feb. 25, 2013).


[8]   A panel of this Court later authorized Bethel to file a successive petition for

      post-conviction relief. Bethel v. State, No. 71A04-1602-SP-396 (Ind. Ct. App.

      March 29, 2016). Next, Bethel filed a successive petition alleging ineffective

      assistance of counsel. The post-conviction court held an evidentiary hearing

      and denied Bethel’s successive petition. This appeal followed.


                                    Discussion and Decision
[9]   In his successive petition for post-conviction relief, Bethel claimed he received

      ineffective assistance of trial, appellate, and post-conviction counsel. In this

      appeal, Bethel presents only a claim of ineffective assistance of trial counsel.



      Court of Appeals of Indiana | Opinion 18A-PC-117 | October 16, 2018        Page 5 of 16
[10]   The purpose of a petition for post-conviction relief is to provide a means for

       raising issues unknown or unavailable to a defendant at the time of the original

       trial and appeal. Dixon v. State, 760 N.E.2d 613, 614 (Ind. Ct. App. 2001).

       When a petitioner has already been afforded the benefit of a direct appeal, post-

       conviction relief contemplates a rather small window for further review.

       Emerson v. State, 812 N.E.2d 1090, 1095 (Ind. Ct. App. 2004). Thus, post-

       conviction procedures do not provide petitioners with a “super appeal.”

       Richardson v. State, 800 N.E.2d 639, 643 (Ind. Ct. App. 2003), trans. denied.


[11]   Post-conviction proceedings are civil proceedings in which the petitioner must

       prove claims by a preponderance of the evidence. Hampton v. State, 961 N.E.2d

       480, 491 (Ind. 2012). When appealing from the denial of a petition for post-

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

       negative judgment. Campbell v. State, 19 N.E.3d 271, 274 (Ind. 2014). 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. Id.


[12]   The post-conviction court made findings of fact and conclusions of law in

       accordance with Indiana Post-Conviction Rule 1(6). On review, findings of fact

       are accepted unless they are clearly erroneous. Witt v. State, 938 N.E.2d 1193,

       1196 (Ind. Ct. App. 2010), trans. denied. The post-conviction court is the sole

       judge of the weight of the evidence and the credibility of witnesses. Id. By

       contrast, we do not defer to the post-conviction court’s legal conclusions.

       Campbell, 19 N.E.3d at 274.

       Court of Appeals of Indiana | Opinion 18A-PC-117 | October 16, 2018      Page 6 of 16
[13]   Bethel argues his trial counsel rendered ineffective assistance by presenting

       evidence and argument in support of a defense of duress even though that

       defense was legally unavailable in his case. He claims his attorney “chose to

       adhere to a defense that was clearly not legally available” and demonstrated he

       did not “know the applicable law” or “simply chose to ignore the settled law in

       this area.” Appellant’s Br. p. 10.


[14]   Where a post-conviction petitioner brings a petition following a direct appeal or

       prior petition for post-conviction relief, allegations of error asserted therein may

       not be raised in the absence of a showing that the issue was unascertainable or

       unavailable at the time of trial, direct appeal or prior petition. Clay v. State, 533

       N.E.2d 1270, 1273 (Ind. Ct. App. 1989), trans. denied. Bethel could have raised

       his claim of ineffective assistance of trial counsel during his first post-conviction

       proceeding in Case Number 71A03-1203-PC-139. We conclude the claim is

       waived.


[15]   Waiver notwithstanding, with respect to claims of ineffective assistance of trial

       counsel, the Indiana Supreme Court has stated:


               To establish a post-conviction claim alleging violation of the
               Sixth Amendment right to effective assistance of counsel, a
               defendant must establish the two components set forth in
               Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
               2d 674 (1984). First, a defendant must show that counsel’s
               performance was deficient. This requires a showing that
               counsel’s representation fell below an objective standard of
               reasonableness and that counsel made errors so serious that
               counsel was not functioning as ‘counsel’ guaranteed to the
               defendant by the Sixth Amendment. Second, a defendant must
       Court of Appeals of Indiana | Opinion 18A-PC-117 | October 16, 2018         Page 7 of 16
               show that the deficient performance prejudiced the defense. This
               requires a showing that counsel’s errors were so serious as to
               deprive the defendant of a fair trial, meaning a trial whose result
               is reliable. 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 one that is sufficient
               to undermine confidence in the outcome.


       Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013) (citations and quotations

       omitted).


[16]   The Indiana Supreme Court has further stated:


               Counsel is afforded considerable discretion in choosing strategy
               and tactics, and we will accord those decisions deference. A
               strong presumption arises that counsel rendered adequate
               assistance and made all significant decisions in the exercise of
               reasonable professional judgment. We recognize that even the
               finest, most experienced criminal defense attorneys may not
               agree on the ideal strategy or the most effective way to represent
               a client. Isolated mistakes, poor strategy, inexperience, and
               instances of bad judgment do not necessarily render
               representation ineffective.


       Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002) (citations omitted). Further, a

       poor strategic choice does not necessarily establish ineffective assistance of

       counsel “even though such choices may be subject to criticism or . . . ultimately

       prove detrimental to the defendant.” Garrett v. State, 602 N.E.2d 139, 142 (Ind.

       1992). For these reasons, we will not lightly speculate as to what may or may

       not have been an advantageous trial strategy as counsel should be given


       Court of Appeals of Indiana | Opinion 18A-PC-117 | October 16, 2018          Page 8 of 16
       deference in choosing a trial strategy which, at the time and under the

       circumstances, seems best. White v. State, 25 N.E.3d 107, 134 (Ind. Ct. App.

       2014), trans. denied.


[17]   At the time Bethel committed his offenses, a defendant could potentially avoid

       criminal liability by proving he or she “was compelled” to engage in the

       prohibited conduct “by threat of imminent serious bodily injury to himself or

       another person.” Ind. Code § 35-41-3-8 (1977). A successful defense of duress

       establishes a “lack of criminal culpability” for “otherwise criminal acts.”

       Sanders v. State, 466 N.E.2d 424, 428 (Ind. 1984) (discussing statutory defenses

       including duress). Among other limitations, the defense “does not apply to a

       person who . . . committed an offense against the person as defined in IC 35-

       42.” Id. There is no dispute that Bethel’s offenses of robbery, attempted

       robbery, and attempted murder are crimes against the person.


[18]   To determine the reasonableness of Bethel’s trial counsel’s strategic choices, it is

       necessary to understand the case against Bethel as presented at his original trial

       in 1991. In relevant part, the State alleged that Bethel attempted to rob, or

       assisted Crenshaw in attempting to rob, Don Wrobel and Patrizia Robaska at

       the J&S Dairy Mart, and then attempted to rob, or assisted Crenshaw in

       attempting to rob, Robert Lucas and others at the Burger Dairy store. The State

       further alleged that Bethel attempted to kill, or assisted Crenshaw in attempting

       to kill, Officer Gary Jerzak and Corporal Richard Powers. For each charge, the

       State claimed that Bethel either committed the offenses as the principal actor or



       Court of Appeals of Indiana | Opinion 18A-PC-117 | October 16, 2018       Page 9 of 16
       was criminally liable because he aided Crenshaw in committing the offenses.

       Tr. Ex. Vol. 3, p. 43.


[19]   In determining whether a person aided another in the commission of a crime,

       we consider the following factors: (1) presence at the scene of the crime; (2)

       companionship with another engaged in criminal activity; (3) failure to oppose

       the crime; and (4) a defendant’s conduct before, during, and after the

       occurrence of the crime. Woods v. State, 963 N.E.2d 632, 634 (Ind. Ct. App.

       2012). An accused’s mere presence at the scene of a crime, or mere

       acquiescence in the commission of a crime, is insufficient to convict the accused

       as an accomplice. Peterson v. State, 699 N.E.2d 701, 706 (Ind. Ct. App. 1998).


[20]   Based on our review of the trial transcript, Bethel’s counsel did not raise a

       statutory defense of duress to excuse otherwise criminal acts because counsel

       did not concede that Bethel had committed any criminal acts in the first place.

       Instead, counsel claimed: (1) Bethel was not guilty of any charges as a principal

       actor because Crenshaw committed all offenses; and (2) Bethel was not guilty as

       an accomplice because Crenshaw coerced him under threat of death into

       accompanying Crenshaw on the crime spree. Counsel claimed Bethel was

       merely present for Crenshaw’s crimes, and mere presence is insufficient to

       establish accessory liability. Bethel’s counsel explained his theory of defense to

       the jury during closing argument:


               Now, you have two counts of Robbery. You’ve heard Stephen
               say that he was there because he was afraid, because he had been
               coerced or under duress. It is not a defense to commit the crime

       Court of Appeals of Indiana | Opinion 18A-PC-117 | October 16, 2018      Page 10 of 16
               of Robbery or Attempted Murder under duress, but it can explain
               how somebody can be at a place where a robbery is being
               conducted without taking part in that robbery, where you
               accompany the person who is doing the robbery, that you don’t
               do it yourself, you do nothing to aid and abet him.


       Tr. Ex. Vol. 4 p. 94. Rather than displaying ignorance of the law, Bethel’s

       counsel clarified that his strategy was to challenge the evidence supporting the

       State’s case. He did not concede, implicitly or explicitly, that the State proved

       the offenses but that Bethel was not guilty due to duress.


[21]   Counsel’s defense strategy was reasonable due to the extensive evidence that

       placed Bethel at the scenes of the crimes. At trial, Wrobel identified Bethel as

       one of the J&S Dairy Mart suspects. Robert Lucas and Charles Flora, who

       witnessed the Burger Dairy store incident, both told the jury that they had

       identified Bethel as one of the suspects after Bethel’s arrest based on Bethel’s

       clothing and body type. In addition, at trial Officer Jerzak identified Bethel as

       one of the suspects. Corporal Powers identified Bethel as one of the suspects

       who fled in a car. Powers further stated he got a good look at Bethel, the

       passenger, because Bethel looked back at him several times. In addition,

       Corporal Powers saw Bethel throw something out of the car. Finally, after the

       fleeing car wrecked, Corporal Powers saw Bethel get out of the car and

       captured him at gunpoint.


[22]   After the arrest, an officer searched the wrecked car and found a jacket that

       contained a telephone bill for Steven Bethel. Another officer with a K-9 unit

       searched areas near the Burger Dairy store and along the route of the car chase.

       Court of Appeals of Indiana | Opinion 18A-PC-117 | October 16, 2018      Page 11 of 16
       The officer found a revolver near the location where Corporal Powers saw

       Bethel throw something out of the car. The officer further found another

       revolver near the Burger Dairy store. Lucas identified those revolvers as the

       guns that were used in the Burger Dairy store attempted robbery. Under these

       circumstances, it was reasonable for counsel to concede Bethel was present at

       the scene and develop a strategy of defense that accounted for Bethel’s presence

       yet maintained his innocence.


[23]   Bethel’s counsel supported his theory of defense by stating during opening

       statements that “Stephen Bethel was as much a victim as the other person” and

       “[h]e was only acting out of fear for his own life.” Tr. Ex. Vol. 3, p. 44.

       Further, counsel cross-examined Wrobel and Lucas, who admitted that Bethel

       never threatened them. In addition, on cross-examination Flora testified that

       he had initially told the police that Crenshaw, not Bethel, shot at him in the

       store’s parking lot. Finally, during Bethel’s case-in-chief, he testified that

       Crenshaw was angry at him due to an unpaid debt and had intimidated him

       into going along by firing a handgun in Bethel’s vicinity.


[24]   To be sure, counsel’s defense strategy was not without challenges. Officer

       Jerzak and Corporal Powers both testified that Bethel, not Crenshaw, was the

       suspect who shot at them. Bethel’s counsel addressed this issue by arguing to

       the jury that the officers were confused as to the identity of the shooter “in the

       heat of battle.” Tr. Ex. Vol. 4, p. 99. Further, counsel’s strategy was ultimately

       unsuccessful, because the jury found Bethel guilty as charged. Nevertheless, an

       unsuccessful defense strategy does not establish that counsel was

       Court of Appeals of Indiana | Opinion 18A-PC-117 | October 16, 2018        Page 12 of 16
       “constitutionally ineffective.” Hinesley v. State, 999 N.E.2d 975, 983 (Ind. Ct.

       App. 2013), trans. denied. We cannot conclude Bethel’s trial counsel performed

       deficiently in selecting and pursuing his strategy.


[25]   Bethel argues his counsel should have pursued a different, allegedly stronger

       strategy: challenging the on-site identifications of Bethel by witnesses Wrobel,

       Lucas, and Flora. After the officers arrested Bethel, they took him to the J&S

       Dairy Mart and the Burger Dairy store, where the three men separately

       identified Bethel as one of the suspects.


[26]   We first reiterate that we do not “lightly speculate as to what may or may not

       have been an advantageous trial strategy.” White, 25 N.E.3d at 134. Bethel’s

       counsel chose to concede that Bethel was present for the offenses while arguing

       that Bethel was not criminally liable as either a principal or an accomplice. The

       attorney supported the theory at trial by providing evidence and argument, and

       by challenging the State’s evidence.


[27]   In any event, the Fourteenth Amendment’s guarantee of due process of law

       requires the suppression of evidence when the procedure used during a pretrial

       identification is impermissibly suggestive. Rasnick v. State, 2 N.E.3d 17, 23 (Ind.

       Ct. App. 2013), trans. denied. In some circumstances, a show-up identification

       may be so unnecessarily suggestive and so conducive to irreparable mistake as

       to constitute a violation of due process. Id. (quotation omitted). The

       admissibility of a show-up identification turns on an evaluation of the totality of

       the circumstances and whether they lead to the conclusion that the


       Court of Appeals of Indiana | Opinion 18A-PC-117 | October 16, 2018      Page 13 of 16
       confrontation was conducted in a manner that could guide a witness into

       making a mistaken identification. Gordon v. State, 981 N.E.2d 1215, 1218 (Ind.

       Ct. App. 2013). Our courts consider the following factors in evaluating the

       admissibility of a show-up identification:


               (1) the opportunity of the witness to view the criminal at the time
               of the crime,


               (2) the length of initial observation of the criminal,


               (3) lighting conditions,


               (4) distance between the witness and the criminal,


               (5) the witness’s degree of attention,


               (6) the accuracy of the witness’s prior description of the criminal,


               (7) the level of certainty demonstrated by the witness, and


               (8) any identifications of another person.


       Id.


[28]   Wrobel testified that he remembered Bethel as one of the suspects due to his

       unusual hairstyle. Wrobel had interacted with Bethel and Crenshaw for several

       minutes during the attempted robbery, at close range. Further, he

       unequivocally identified Bethel at trial.



       Court of Appeals of Indiana | Opinion 18A-PC-117 | October 16, 2018       Page 14 of 16
[29]   As for Lucas, he interacted with Bethel and Crenshaw for about ten minutes, at

       close range, inside the Burger Dairy store. Lucas had every incentive to pay

       attention to the men because they were armed. After Bethel and Crenshaw left,

       Lucas called the police and provided a description of the men. The description

       is not in the record, but twenty to thirty minutes later, officers brought Bethel

       and Crenshaw back to the Burger Dairy store. Lucas identified them based on

       their body types and Crenshaw’s clothing, and he was certain in his

       identification. Finally, Flora saw Bethel and Crenshaw inside the Burger Dairy

       store as he approached it. He returned to his vehicle and saw them leave the

       store, both holding guns. After the police brought Bethel and Crenshaw back to

       the store twenty to thirty minutes later, Flora recognized Bethel by the clothes

       he wore and by a white streak in his hair.


[30]   Considering the factors set forth above, especially the length of duration of the

       initial observations of Bethel and Crenshaw by the witnesses at close distance,

       we cannot conclude that the post-arrest show-up identification process was

       unduly suggestive. See Lyles v. State, 834 N.E.2d 1035, 1045 (Ind. Ct. App.

       2005) (show-up identification process was not unduly suggestive; victim of

       robbery had encountered defendant close up for several minutes and provided

       an accurate description; victim later identified defendant as the robber), trans.

       denied. Challenging the show-up identifications would not have been a stronger

       or more effective strategy than the one counsel chose: attempting to show that

       Bethel was not guilty of the offenses because he was not the principal actor and

       was merely present for Crenshaw’s crimes. Bethel has failed to demonstrate the


       Court of Appeals of Indiana | Opinion 18A-PC-117 | October 16, 2018      Page 15 of 16
       post-conviction court erred in denying his successive petition for post-

       conviction relief.


                                                  Conclusion
[31]   For the reasons stated above, we affirm the judgment of the post-conviction

       court.


[32]   Affirmed.


[33]   Mathias, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-PC-117 | October 16, 2018        Page 16 of 16
