                                                                               FILED
                                                                           Mar 02 2020, 8:58 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                           Curtis T. Hill, Jr.
      Public Defender of Indiana                                 Attorney General of Indiana

      Liisi Brien                                                Caroline G. Templeton
      Deputy Public Defender                                     Deputy Attorney General
      Indianapolis, Indiana                                      Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jerry W. Young,                                            March 2, 2020
      Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                 19A-PC-1217
              v.                                                 Appeal from the Elkhart Superior
                                                                 Court
      State of Indiana,                                          The Honorable Kristine Osterday,
      Appellee-Respondent.                                       Judge
                                                                 The Honorable Dean O. Burton,
                                                                 Magistrate
                                                                 Trial Court Cause No.
                                                                 20D01-1706-PC-33



      Barnes, Senior Judge.


                                       Statement of the Case
[1]   Jerry Young appeals the post-conviction court’s denial of his petition for post-

      conviction relief. We vacate and remand in part and affirm in part.

      Court of Appeals of Indiana | Opinion 19A-PC-1217 | March 2, 2020                            Page 1 of 14
                                                     Issues
[2]   Young presents two issues for our review, which we restate as:


              I.       Whether the post-conviction court erred by denying
                       Young’s claim that his stipulation to habitual offender
                       enhancements was not knowing, voluntary, and
                       intelligent because he did not personally waive his right to
                       a jury trial.


              II.      Whether the post-conviction court erred by denying
                       Young’s claim of ineffective assistance of appellate
                       counsel.


                                Facts and Procedural History
[3]   The underlying facts, as stated in Young’s direct appeal, are as follows:


              On October 16, 2012 at around 1:00 a.m., A.B. arrived home and
              went to sleep on her couch. At around 3:00 a.m., A.B. was
              awaken[ed] by someone knocking on her door. Assuming it was
              one of her friends, A.B. opened the door. Instead, it was Young,
              who pushed his way into her apartment. A.B. did not know
              Young but had seen him before walking near her apartment.
              Young, who was intoxicated, sat down on A.B.’s couch, and
              A.B. tried to convince him to leave to no avail. Young told A.B.
              he wanted to “play a sexual game.” Tr. p. 144. Despite A.B.’s
              refusal, Young said “We’re going to do this,” and forced A.B. to
              have sexual intercourse with him and to fellate him.


              On April 29, 2015, the State charged Young with Class A felony
              rape, Class A felony criminal deviate conduct, and Class D
              felony intimidation. The State also alleged that Young was a
              repeat sexual offender and a habitual criminal offender. After a
              jury trial, Young was found guilty as charged and admitted to

      Court of Appeals of Indiana | Opinion 19A-PC-1217 | March 2, 2020           Page 2 of 14
              being a repeat sexual offender and a habitual offender. At
              sentencing, the trial court merged the convictions for rape and
              criminal deviate conduct and sentenced Young to fifty years for
              rape and three years for intimidation to be served concurrently.
              The trial court also enhanced Young’s sentence by thirty years
              due to his status as a habitual offender and an additional ten
              years based on his repeat sexual offender status, for an aggregate
              ninety-year sentence.


      Young v. State, 57 N.E.3d 857, 858-59 (Ind. Ct. App. 2016), trans. denied (2017).


[4]   On direct appeal, this Court found the trial court erred by merging Young’s

      convictions for rape and criminal deviate conduct and by applying two

      enhancements to the single conviction. We thus remanded the case to the trial

      court with instructions to enter judgment of conviction for the lesser-included

      offense of Class B felony criminal deviate conduct. In addition, the trial court

      was instructed to attach Young’s habitual offender enhancement to his rape

      conviction and to attach his repeat sexual offender enhancement to his criminal

      deviate conduct conviction. The two enhanced sentences were to be served

      concurrently for an aggregate sentence of eighty years. See id. On remand, the

      trial court followed our sentencing directive.


[5]   In June 2017, Young filed his pro se petition for post-conviction relief, which he

      later amended by counsel. A hearing on Young’s petition was held in

      September 2018, after which the court took the matter under advisement and

      allowed the parties to submit proposed findings of fact and conclusions of law.

      On May 7, 2019, the court issued its order denying Young’s petition. This

      appeal ensued.

      Court of Appeals of Indiana | Opinion 19A-PC-1217 | March 2, 2020            Page 3 of 14
                                    Discussion and Decision
[6]   To the extent the post-conviction court has denied relief, the petitioner appeals

      from a negative judgment and faces the rigorous burden of showing that the

      evidence, as a whole, leads unerringly and unmistakably to a conclusion

      opposite that reached by the post-conviction court. Harris v. State, 762 N.E.2d

      163, 166 (Ind. Ct. App. 2002), trans. denied. 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.

      Kistler v. State, 936 N.E.2d 1258, 1261 (Ind. Ct. App. 2010), trans. denied. In this

      review, findings of fact are accepted unless they are clearly erroneous, and no

      deference is accorded to conclusions of law. Id.


                                           I. Personal Waiver
[7]   Young contends that his stipulation to the repeat sexual offender and habitual

      criminal offender sentencing enhancements constitutes a guilty plea and that

      this plea was not knowing, voluntary, and intelligent because he did not

      personally waive his right to a jury trial.


[8]   First, we must determine whether Young’s acknowledgement concerning the

      habitual enhancements was a guilty plea or merely a stipulation. The post-

      conviction court concluded that Young’s stipulation was “essentially a guilty

      plea.” Appealed Order p. 11, ¶ 23.


[9]   In Garrett v. State, 737 N.E.2d 388 (Ind. 2000), the defendant claimed that his

      stipulation to the existence of prior offenses during the habitual offender phase

      Court of Appeals of Indiana | Opinion 19A-PC-1217 | March 2, 2020         Page 4 of 14
       of his trial amounted to a guilty plea, and thus it was error for the trial court to

       accept the stipulation without advising him on various rights he would waive by

       pleading guilty. See Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed.

       2d 274 (1969) (trial courts are obliged to inform defendants pleading guilty that

       they are waiving right to trial by jury, right to confront one’s accusers, and the

       privilege against compulsory self-incrimination). Our Supreme Court discussed

       the distinction between a factual stipulation and a guilty plea and stated: “A

       stipulation that seeks to establish certain facts does not constitute a guilty plea.”

       Garrett, 737 N.E.2d at 392. Noting that Garrett’s stipulation did not establish

       that he was an habitual offender but rather merely established the fact that the

       prior offenses existed, the Court concluded that the stipulation did not amount

       to a guilty plea. Consequently, the trial court was not required to advise Garrett

       as to the rights he would waive by pleading guilty.


[10]   Here, in its order denying Young’s petition, the post-conviction court

       reproduced, in its entirety, the parties’ Stipulation on Prior Convictions. The

       following paragraphs of the stipulation are germane to our review:


               1. THAT, prior to all relevant dates alleged in this cause of
               action, JERRY W. YOUNG (“Defendant”) had accumulated the
               following prior unrelated conviction:


               On April 8, 2004, JERRY W. YOUNG, in the Elkhart County
               Superior Court Three, Elkhart County, Indiana, in Cause
               Number 20D03-0310-FC-177, was Convicted of Sexual
               Misconduct with a Minor as a Class D Felony under Indiana
               Code section 35-42-4-9(b)(1).


       Court of Appeals of Indiana | Opinion 19A-PC-1217 | March 2, 2020           Page 5 of 14
        2. THAT Defendant, having accumulated such prior unrelated
        conviction as of the date of the offense in this action, is a Repeat Sexual
        Offender in that he had accumulated one (1) prior unrelated felony
        conviction for a sex offense under or substantially similar to I.C.
        § 35-42-4-1 through I.C. § 35-42-4-9 or I.C. § 35-46-1-3.


        3. THAT, prior to all relevant dates alleged in this cause of
        action, JERRY W. YOUNG had accumulated the following
        prior unrelated convictions:


        On or about the 1st day of April, 2000, in the County of Elkhart,
        State of Indiana, JERRY W. YOUNG committed the offense of
        Sexual Battery, a Felony, and was convicted and sentenced of
        said offense on or about the 28th day of December, 2000, in the
        Elkhart County Circuit Court, Cause No. 20C01-0005-CF-33,
        Elkhart County, Indiana, and;


        On or about the 6th day of July, 1997, in the County of Elkhart,
        State of Indiana, JERRY W. YOUNG committed the offense of
        Battery on a Police Officer, a Felony, and was convicted and
        sentenced of said offense on or about the 7th day of November,
        1997, in the Elkhart County Superior Court Three, Cause No.
        20D03-9707-DF-22, Elkhart County, Indiana.


        4. THAT Defendant, having accumulated such prior unrelated
        convictions as of the date of the offense in this action, is a Habitual
        Criminal Offender in that Defendant had accumulated two (2)
        prior unrelated felony convictions.


Appealed Order, pp. 7-8 (emphasis added).




Court of Appeals of Indiana | Opinion 19A-PC-1217 | March 2, 2020                 Page 6 of 14
[11]   In addition, the transcript from Young’s trial shows that after the jury reached

       its verdict on the principal charges, the court sent the jurors back into the

       deliberation room. This colloquy then ensued:


               THE COURT: Mr. Young, I’m going to go ahead and
               administer an oath to you again, sir. Would you please raise
               your right hand for me. Thank you. Sir, do you solemnly swear
               or affirm under the pains and penalties for perjury to tell the
               truth, the whole truth, and nothing but the truth, so help you
               God?


               MR. YOUNG: Yeah.


               THE COURT: Thank you. Mr. Young, would you state your
               full name, please, for the record.


               MR. YOUNG: Jerry Young.


               THE COURT: Thank you. [Defense Counsel], with regards to
               the enhancement as to the Repeat Sexual Offender and the
               Habitual Criminal Offender Enhancement, how do you wish to
               proceed?


               [DEFENSE COUNSEL]: Judge, I believe we’re going to
               proceed by stipulation.


               THE COURT: Thank you. [Defense Counsel], let’s go ahead
               and take a factual basis as to the stipulation.


               [DEFENSE COUNSEL]: If we could hold on for just a second,
               Judge.



       Court of Appeals of Indiana | Opinion 19A-PC-1217 | March 2, 2020          Page 7 of 14
           THE COURT: Yes, ma’am.


           [DEFENSE COUNSEL]: Judge, if we could go back into the
           holding area so I can talk with my client for awhile.

                                         1
Trial Tr. Vol. 4, pp. 128-29. The court was in recess for about four minutes;

when it reconvened, the conversation continued as follows:


           [STATE]: I’m tendering to the Court a signed stipulation
           regarding repeat sexual offense and the habitual criminal
           offenses.


           THE COURT: Thank you. If I may just have a moment.
           [Court Reporter], [State] has handed to the Court a Stipulation
           on Prior Convictions. [State], on the Stipulation on Prior
           Convictions any additional record you want to make?


           [STATE]: No. Thank you, Your Honor.


           THE COURT: All right. [Defense Counsel], any additional
           record you want to make on the Stipulation of Prior Convictions?


           [DEFENSE COUNSEL]: I would just like to point out to the
           Court that to the extent my client has been able he has
           cooperated.


           THE COURT: Thank you. All right. We’ll go ahead and show
           a Stipulation on the Prior Convictions, which the Court
           [interprets] as an admission on the part of Mr. Young to being a




1
    Our citation to the Trial Transcript is based on the .pdf pagination.


Court of Appeals of Indiana | Opinion 19A-PC-1217 | March 2, 2020            Page 8 of 14
               Repeat Sexual Offender pursuant to Page 2 of 3 of the charging
               information, as well as an admission on the part of Mr. Young to
               being an Habitual Criminal Offender as identified on Page 3 of 3
               of the charging information. [Defense Counsel], any other
               comments or objections to the Court’s interpretation as to the
               Stipulation on Prior Convictions?


               [DEFENSE COUNSEL]:                          No, Judge.


               THE COURT:       All right. [State], any objections or
               comments on the Court’s interpretation?


               [STATE]:          No. Thank you, Your Honor.


       Id. at 130-31.


[12]   Young’s stipulation established the existence of his prior convictions,

       established that the prior convictions were unrelated, and confirmed that Young

       “is a Repeat Sexual Offender” and “is a Habitual Criminal Offender.”

       Appealed Order, pp. 7, 8. Young’s status was proved by his admissions

       contained in the stipulation, and there was nothing left to be determined.

       Moreover, the trial court accepted the stipulation, stating that it interpreted the

       stipulation as Young’s admission to being both a repeat sexual offender and an

       habitual criminal offender. The court then specifically asked Young’s counsel if

       she had any objections to the court’s interpretation, and she replied in the

       negative. Young’s stipulation was the equivalent of a guilty plea.


[13]   Having concluded that Young’s stipulation amounted to a guilty plea, we turn

       to whether it was knowing, voluntary, and intelligent. Young specifically

       Court of Appeals of Indiana | Opinion 19A-PC-1217 | March 2, 2020          Page 9 of 14
       asserts the lack of his personal waiver of a jury trial. In support of his

       argument, Young cites Saylor v. State, 55 N.E.3d 354 (Ind. Ct. App. 2016), trans.

       denied, in which this Court held that when a defendant pleads guilty to an

       habitual offender enhancement, he must personally waive his right to a jury

       trial on the enhancement. Id. at 366. For its part, the State acknowledges

       Saylor and simply states that it was wrongly decided.


[14]   As evidenced by the trial transcript, Young did not personally waive his right to

       a jury trial on the repeat sexual offender and habitual criminal offender

       enhancements. Accordingly, we vacate the adjudications on these

       enhancements and remand this case for a new trial on the repeat sexual

       offender and habitual criminal offender enhancements.


                              II. Assistance of Appellate Counsel
[15]   Young next asserts that his appellate counsel was ineffective for failing to

       challenge the sufficiency of the evidence on his rape conviction.


[16]   To prevail on a claim of ineffective assistance of counsel, a defendant is

       required to establish both (1) that counsel’s performance was deficient and (2)

       that counsel’s deficient performance prejudiced the defendant. Johnson v. State,

       948 N.E.2d 331, 334 (Ind. 2011) (citing Strickland v. Washington, 466 U.S. 668,

       687-96, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). To satisfy the first element,

       the defendant must show that counsel’s representation fell below an objective

       standard of reasonableness and that counsel’s errors were so serious that the

       defendant was denied the counsel guaranteed by the Sixth Amendment. Bethea

       Court of Appeals of Indiana | Opinion 19A-PC-1217 | March 2, 2020            Page 10 of 14
       v. State, 983 N.E.2d 1134, 1138 (Ind. 2013). In order to satisfy the second

       element, the defendant must show prejudice; that is, a reasonable probability

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

       different. Id. at 1139. There is a strong presumption that counsel rendered

       effective assistance and made all significant decisions in the exercise of

       reasonable professional judgment, and the defendant has the burden of

       overcoming this presumption. Harris, 762 N.E.2d at 168-69.


[17]   Further, because the strategic decision regarding which issues to raise on appeal

       is one of the most important decisions to be made by appellate counsel,

       counsel’s failure to raise a specific issue on direct appeal rarely constitutes

       ineffective assistance. Brown v. State, 880 N.E.2d 1226, 1230 (Ind. Ct. App.

       2008), trans. denied. “For countless years, experienced advocates have

       ‘emphasized the importance of winnowing out weaker arguments on appeal

       and focusing on one central issue if possible, or at most a few key issues.’”

       Walker v. State, 988 N.E.2d 1181, 1191 (Ind. Ct. App. 2013) (quoting Bieghler v.

       State, 690 N.E.2d 188, 194 (Ind. 1997)), trans. denied. Accordingly, on review,

       we should be particularly deferential to appellate counsel’s strategic decision to

       exclude certain issues in favor of other issues more likely to result in a reversal.

       Id. To evaluate whether appellate counsel performed deficiently by failing to

       raise an issue on appeal, we apply a two-part test: (1) whether the unraised

       issue is significant and obvious from the face of the record, and (2) whether the

       unraised issue is “clearly stronger” than the raised issues. Walker, 988 N.E.2d

       at 1191.

       Court of Appeals of Indiana | Opinion 19A-PC-1217 | March 2, 2020          Page 11 of 14
[18]   On direct appeal, counsel raised the issue of the trial court’s double

       enhancement of Young’s rape conviction. This argument was successful, and

       this Court reversed and remanded with instructions to the trial court to attach

       Young’s habitual offender enhancement to his rape conviction and to attach his

       repeat sexual offender enhancement to his criminal deviate conduct conviction,

       resulting in a ten-year sentence reduction.


[19]   Now Young claims that his appellate counsel should have raised the issue of

       the sufficiency of the evidence establishing the threat of deadly force element of

       his Class A felony rape conviction. In support of his argument, Young alleges

       that the evidence concerning a threat of deadly force was inconsistent such that,

       had counsel raised the sufficiency issue on appeal, his Class A felony conviction

       would have been reduced to a Class B felony.


[20]   To be sure, the jury heard inconsistent evidence as to any threats by Young.

       For instance, A.B. testified that Young threatened to kill her but then testified

       that Young had not said he was going to kill her but that he told her to stop

       crying or it would “be bad” for her—which A.B. took to mean that he would

       hurt her. Trial Tr. Vol. 1, p. 151. A.B. later clarified:


               [STATE]: And you understand your testimony has been
               different than what you told the police detective?


               [A.B.]:           Yes.


               [STATE]:          Can you explain why that is?



       Court of Appeals of Indiana | Opinion 19A-PC-1217 | March 2, 2020        Page 12 of 14
               [A.B.]:        Some parts of it I’ve forgotten and some parts of it
               I’ve just put out of my mind.


       Id. at 161. And:


               [STATE]: And you know that there are some discrepancies on
               the 911 call with what you testified today, as well. Isn’t that
               correct?


               [A.B.]:           Yes.


               [STATE]: Didn’t you say on the 911 call that the defendant
               had a knife?


               [A.B.]:           Yes.


               [STATE]:          Why did you say that?


               [A.B.]:      Cuz I was – I assumed it was a knife when he had
               his hand in his pocket but I didn’t actually see the knife.


       Trial Tr. Vol. 2, pp. 23-24.


[21]   The offense of rape as a Class B felony was submitted to the jury on the verdict

       form as a lesser-included offense of the Class A felony rape. The jury heard the

       evidence, viewed the witnesses as they testified, and had the option of the

       lesser-included B felony rape offense in front of them; yet, it still found Young

       guilty of the Class A felony. Where contradictory or inconsistent testimony is

       presented at trial, it is up to the jury to resolve such conflicting testimony.

       Brown v. State, 830 N.E.2d 956, 968 (Ind. Ct. App. 2005). Raising this issue on

       Court of Appeals of Indiana | Opinion 19A-PC-1217 | March 2, 2020             Page 13 of 14
       appeal would merely have been a request for this Court to reweigh the evidence

       and judge the credibility of the witnesses, which it cannot do. See Sandleben v.

       State, 29 N.E.3d 126, 131 (Ind. Ct. App. 2015) (appellate court neither reweighs

       evidence nor judges credibility of witnesses), trans. denied. Young has not

       shown that the unraised issue is clearly stronger than the issue raised by

       appellate counsel. Therefore, he has not met his burden of demonstrating that

       his appellate counsel performed deficiently.


                                                 Conclusion
[22]   Based on the foregoing, we vacate Young’s habitual offender adjudications and

       remand for a new trial on those enhancements. We further conclude the post-

       conviction court properly denied Young’s petition as to his claim of ineffective

       assistance of appellate counsel.


[23]   Vacated and remanded in part and affirmed in part.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 19A-PC-1217 | March 2, 2020       Page 14 of 14
