MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                      Apr 10 2019, 8:29 am
regarded as precedent or cited before any                                        CLERK
court except for the purpose of establishing                                Indiana Supreme Court
                                                                               Court of Appeals
the defense of res judicata, collateral                                          and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Jeffrey Allen Rowe                                        Curtis T. Hill, Jr.
New Castle, Indiana                                       Attorney General of Indiana

                                                          Ian McLean
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey Allen Rowe,                                       April 10, 2019
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          18A-PC-1031
        v.                                                Appeal from the La Porte Circuit
                                                          Court
State of Indiana,                                         The Honorable Thomas J.
Appellee-Respondent.                                      Alevizos, Judge
                                                          Trial Court Cause No.
                                                          46C01-0911-PC-228



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019                      Page 1 of 26
                                        Statement of the Case
[1]   Jeffrey Allen Rowe appeals the post-conviction court’s denial of his petition for

      post-conviction relief. Rowe raises four issues for our review, which we revise

      and restate as the following three issues:


                1.     Whether the post-conviction court erred when it denied
                       Rowe’s two motions for summary disposition.

                2.     Whether the post-conviction court erred when it
                       concluded that Rowe was not denied the effective
                       assistance of his pretrial counsel.

                3.     Whether the post-conviction court erred when it
                       concluded that Rowe was not denied the effective
                       assistance of trial counsel.


[2]   We affirm in part, reverse in part, and remand for further proceedings.


                                  Facts and Procedural History
[3]   The facts underlying Rowe’s convictions were stated by this Court in his first

      direct appeal.


              The facts favorable to the convictions are that in January 2007,
              seventy-three-year-old Robert Toutloff resided at the Normandy
              Village apartments. Toutloff became acquainted with Bobbi Jo
              Lewis approximately four or five months before the events in
              question when she knocked on his apartment door one day and
              asked him for money so she could buy milk for her little girl.
              Toutloff gave her some money. From that point on, according to
              Toutloff, the two became friends. Toutloff explained: “I kind of
              looked after her. [I liked her]. She was a nice person.” Lewis
              asked Toutloff for money “every two or three weeks, something

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019   Page 2 of 26
        like that”, ostensibly for essential items such as diapers and milk.
        Eventually, Lewis began to steal money from Toutloff. She once
        stole $290 and he had her arrested. Toutloff estimated that Lewis
        stole money from him “half a dozen times.” Lewis continued to
        come around and Toutloff continued to give her money.


        On the evening of January 21, 2007, Lewis was with Rowe, who
        was her boyfriend, and Jennifer Benson, who was her sister. The
        three were driving around in Lewis’s father’s car. After they
        purchased five dollars worth of gas, the group was out of money.
        With Rowe driving, they traveled to the Normandy Apartments,
        where a friend, Charles Everly, gave Lewis $20. Lewis bought
        crack cocaine with the money and the three smoked it. After
        that, Lewis told Rowe that Toutloff kept some money in his right
        front pocket. Aware that Lewis had gotten money from Toutloff
        in the past, Rowe put on a hooded sweatshirt, went to Toutloff’s
        apartment, and knocked on his door. Inside, Toutloff was eating
        dinner when he heard the knock. He went to the door but did
        not see anyone through the peephole, so he returned to his meal.
        When he heard a second knock, he went to the door again and
        this time thought he saw a police officer outside the door, so he
        unlocked the deadbolt. At that moment, someone violently
        pushed the door open from the outside, knocking Toutloff to the
        floor on his back. The intruder jumped on top of Toutloff,
        straddling his stomach, and began punching Toutloff in the face
        and head. The man repeatedly demanded, “We know you’ve got
        money, where is it?” As the beating continued, Toutloff was
        eventually able to say, “In here”, pointing to a single-drawer
        filing cabinet right next to them. Still lying on his back, Toutloff
        pulled the drawer open and took out a small leather shaving kit.
        The intruder took the shaving kit, opened it, and found
        approximately $70 inside. The intruder took out the money, got
        off of Toutloff, and fled from the apartment.


        Toutloff called the police, who responded and took Toutloff’s
        description of what had occurred. Toutloff was taken to the

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019   Page 3 of 26
        hospital, where it was determined that he had suffered cuts to his
        face and neck, a broken nose, and severe bruising on his torso.
        He remained in the hospital for three days.


        Returning to Rowe, approximately five minutes after he had left
        Lewis and Benson in the parking lot, Rowe came running back to
        the car, jumped into the driver’s seat, and “squealed out.”
        Rowe’s hands were bleeding from small cuts around his
        knuckles. He informed them, “I got it.” He told the women that
        Toutloff did not have money in his pocket, but when Rowe
        punched him hard, “the dude told him it was in the cabinet in a
        drawer.” Rowe showed his companions the money he had taken
        from Toutloff. They traveled to a Family Express convenience
        store on Franklin Road, where Rowe purchased some cigarettes.
        After they left the store, Lewis called someone and arranged a
        drug purchase. A short time later, Rowe gave the drug source
        “about like $70, $80” in exchange for crack cocaine.


        Detective Larry Litchford of the Michigan City Police
        Department investigated the robbery. Detective Litchford knew
        of Toutloff’s history with Lewis, and in fact had in the recent past
        counseled Toutloff to have no contact with Lewis. After
        speaking with Toutloff following the robbery, Detective Litchford
        “knew Bobbie Jo and knew that if anything happened to Mr.
        Toutloff, that more than likely, she either knew or she was
        around when this incident occurred.” By coincidence, Detective
        Litchford learned that Sergeant Carey Brinkman was conducting
        an investigation of a death that occurred at the Normandy
        Apartments on the same night Toutloff was robbed. In speaking
        with Sergeant Brinkman, Detective Litchford learned that Lewis
        had a boyfriend named Jeff Rowe, and that Rowe, Lewis, and
        Benson had been in the apartment complex on the night of the
        robbery. Sergeant Brinkman contacted Rowe and Lewis and
        asked them to come to the police station for an interview
        regarding the death investigation.


Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019   Page 4 of 26
        Rowe and Lewis went to the police station on Thursday, January
        25, 2007, and spoke with Detective Litchford and Sergeant
        Brinkman regarding the death at the Normandy Apartments.
        Thereafter, Detective Litchford asked Lewis if she would be
        willing to voluntarily speak with him about the Toutloff robbery.
        She agreed. After waiving her rights, Lewis told him about her
        and Rowe’s and Benson’s activities that night, claiming they had
        nothing to do with the robbery. When Detective Litchford told
        her that he knew she was not telling him the truth, she admitted
        that the three had driven to Toutloff’s apartment, where Rowe
        left the car saying he was going to get some money from
        Toutloff. According to Lewis, Rowe came running back to the
        car a few minutes later, got in, claimed he had hit Toutloff, and
        showed them the money he had taken from Toutloff, which
        Lewis estimated to be $75. Detective Litchford also spoke with
        Rowe, who denied even being in the apartment complex at the
        time of the robbery. During his interview with Rowe, Detective
        Litchford observed cuts on Rowe’s hands and knuckles.
        Detective Litchford then interviewed a witness connected to the
        death investigation in the Normandy apartments, and that man,
        the aforementioned Everly, identified photos of Lewis and Rowe
        as people who came to his apartment in Normandy Village
        asking for money, and stated they were there at about the same
        time Toutloff was robbed.


        On January 30, 2007, Rowe was charged with robbery and
        burglary, both as class A felonies. On March 22, 2007, a count
        was added alleging that Rowe was a habitual offender.
        Following a jury trial, Rowe was convicted as charged and found
        to be a habitual offender. The court imposed concurrent, forty-
        year sentences for each of the class A felony convictions and
        enhanced the executed sentence by thirty years based upon the
        habitual offender finding. Thus, Rowe received a seventy-year
        executed sentence.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019   Page 5 of 26
      Rowe v. State, No. 46A03-0809-CR-439, 2009 WL 1175664, at *1-3 (Ind. Ct.

      App. Apr. 30, 2009) (footnote and citations to the record omitted) (Rowe I).


[4]   On appeal, this Court held that Rowe’s convictions for robbery and burglary,

      both as Class A felonies, violated double jeopardy principles because both

      convictions were elevated from lesser offenses based on the same serious injury.

      Id. at *3. This Court also held that the trial court erred when it sentenced Rowe

      because it had failed to specify which conviction it was enhancing when it

      imposed the habitual offender enhancement. Id. Accordingly, this Court

      remanded Rowe’s case to the trial court with instructions for the trial court to

      reduce Rowe’s burglary conviction to a Class B felony and to resentence Rowe.

      Id.


[5]   On remand, the trial court sentenced Rowe to forty years based on his

      conviction for robbery, as a Class A felony, and enhanced that sentence by

      thirty years based on the habitual offender adjudication. Rowe v. State, No.

      46A03-0907-CR-344, 2010 WL 2812698, at *1 (Ind. Ct. App. July 19, 2010)

      (Rowe II). And the trial court sentenced him to a concurrent sentence of fifteen

      years for his conviction for burglary, as a Class B felony. Id. Rowe appealed

      his sentence, and this Court affirmed the trial court. Id.


[6]   Thereafter, Rowe, pro se, filed an amended petition for post-conviction relief. In

      that petition, Rowe alleged that his pretrial and trial counsel had both rendered

      ineffective assistance when they had failed to communicate his requested plea

      agreement to the State, under which he had proposed pleading guilty to


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019   Page 6 of 26
      robbery, as a Class B felony, in exchange for a twelve-year sentence. Rowe

      further alleged that his trial counsel had rendered ineffective assistance when he

      had failed to inform Rowe of a plea offer from the State that called for Rowe to

      plead guilty to either robbery or burglary, as a Class A felony, and to serve a

      twenty-year sentence.1


[7]   Rowe filed a motion for partial summary disposition. In that motion, Rowe

      alleged that he was entitled to judgment as a matter of law on his claim that his

      attorneys had rendered ineffective assistance of counsel. In support of that

      motion, Rowe included as an attachment an affidavit in which he stated that

      neither his pretrial nor his trial counsel had communicated his proposed twelve-

      year plea offer to the State and that his trial counsel had never informed him of

      the twenty-year plea offer from the State, which he asserted he would have

      accepted had he known about it. He also attached a letter from his pretrial

      counsel in which his pretrial counsel informed Rowe that Rowe’s proposed plea

      agreement “will simply not fly” with the State and that she was “not about to

      take a plea to the Prosecuting Attorney that will cause him to laugh” at her.

      Ex. at 7. The post-conviction court denied Rowe’s motion.


[8]   Rowe then filed a second motion for partial summary disposition in which he

      again alleged that he was entitled to judgment as a matter of law on his

      ineffective assistance of counsel claim as it pertained to his trial counsel because

      his trial counsel had failed to communicate the twenty-year plea offer from the


      1
          There is no dispute that the State sent a twenty-year offer to Rowe’s trial counsel.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019             Page 7 of 26
       State. The State responded to Rowe’s second motion and included an affidavit

       from Rowe’s trial counsel as an attachment. In that affidavit, Rowe’s trial

       counsel stated that he had received a plea offer from the State, that he had

       communicated that offer to Rowe, and that Rowe had rejected the State’s offer.

       The post-conviction court denied Rowe’s second motion for partial summary

       disposition.


[9]    The post-conviction court held an evidentiary hearing on Rowe’s petition for

       post-conviction relief on December 1, 2017, and August 10, 2018. During the

       hearing, Rowe questioned his pretrial counsel about her decision to not take his

       proposed twelve-year plea offer to the State. Rowe’s pretrial counsel testified

       that, if she has a client who is “ultimately interested in a fruitful negotiation,”

       there are certain circumstances in which “it certainly doesn’t do anyone any

       good to start in a position that will solely put the State of the mindset of either

       anger or disdain” because, once that happens, “there’s never going to be any

       type of fruitful negotiation.” Tr. Vol. II at 116.


[10]   After Rowe questioned his pretrial counsel, he attempted to call his trial counsel

       as a witness, but his trial counsel was not present. The court indicated that it

       had ordered the clerk’s office to issue a subpoena for Rowe’s trial counsel but

       that the clerk’s office “apparently” did not issue the subpoena. Id. at 122. The

       court then noted that it was missing a person “that we definitely need.” Id.

       The court determined that it would hold an additional hearing on April 5, 2018,

       and that it would “make sure” to subpoena Rowe’s trial counsel. Id. at 123.



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019   Page 8 of 26
[11]   Rowe then questioned the prosecuting attorney who had filed the criminal

       charges against him. When Rowe asked the prosecuting attorney if he would

       have agreed to Rowe’s twelve-year plea, the prosecuting attorney responded,

       “[p]robably not.” Tr. Vol. II at 127. The prosecuting attorney further testified

       that he “likely would have” countered a twelve-year plea with terms that

       “certainly would not have been any less” than the terms contained in the

       twenty-year plea offer. Id. at 128.


[12]   Rowe also testified at the hearing. Rowe testified that he had requested that his

       pretrial counsel relay a twelve-year plea offer to the State but that his pretrial

       counsel “refused” to do so because his twelve-year offer was not realistic. Id. at

       142. He further testified that, after his trial counsel began representing him, he

       asked his trial counsel to relay the same twelve-year agreement to the State but

       that his trial counsel “said that if [he] wanted a plea agreement, [he] must be

       willing to accept 30 to 40 years because the State believes that they have a

       strong case.” Id. at 143. Rowe further testified that, while he would not accept

       a thirty or forty-year sentence, his intention was to start at twelve years and

       “have room to negotiate.” Id. at 144.


[13]   Additionally, Rowe testified that, had his trial counsel informed him of the

       State’s twenty-year plea offer, he would have accepted that offer because, while

       he “didn’t do exactly what had . . . been argued by the State” at his trial, he

       “was in the apartment when the situation occurred.” Id. at 146. Specifically,

       Rowe testified that he was in the apartment to distract the man who lived there

       so that his friend could get money. He further testified that his friend “just

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019   Page 9 of 26
       snapped” and “got on top” of the man who lived in the apartment and “started

       hitting him all over his midsection.” Id. at 148. Rowe further testified that,

       while he “never touched” the man in the apartment, “[he] committed burglary

       pointblank. [He] had culpability. [He] could have accepted and legitimately

       pled guilty to an A felony burglary because . . . she caused serious bodily injury

       to him, and [he] didn’t stop her.” Id. at 149.


[14]   On April 3, 2018, the post-conviction court entered its findings and conclusions

       in which it cancelled the April 5, 2018, hearing and denied Rowe’s petition for

       post-conviction relief. In particular, the court found and concluded as follows:


               7. At the most recent hearing in this matter, on August 10th . . .
               [Rowe] admitted to the crimes for which he was convicted and
               now contests. After being cautioned by the Court and the State
               that statements made in open court could be used against him,
               and with the court assuming[] that [Rowe] misspoke, [Rowe]
               confirmed the same admission of guilt when prompted.


               8. In researching Indiana law for precedent involving an
               admission of guilt during a PCR proceeding, the Court finds no
               guidance. Instead, the Court relies on the clear language of
               Section 1 of Indiana PCR Rule 1.


               9. The Court is mindful that, if successful with his PCR, [Rowe]
               would be entitled to a new trial. However, the Court finds that
               the most relevant evidence submitted during the PCR hearing
               renders futile both [Rowe’s] petition and any future retrial. . . .


               10. [Rowe’s] admission of guilt undermines the PCR purpose but
               could be viewed as evidence of material fact which was not
               previously presented or heard at [Rowe’s] trial. Unfortunately

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019   Page 10 of 26
        for [Rowe], that type of evidence does not lend to his favor, nor
        can it be overlooked if the Court is to consider the “interests of
        justice” before granting a PCR petition to vacate a conviction.
        Oppositely, the admission of guilt, being entered as evidence in
        the PCR hearing, outweighs all other evidence when considering
        the interests of justice.


                                                ***


        17. The Court finds that [Rowe’s] claims of ineffective assistance
        of counsel are unfounded.


                                                ***


        21. [Rowe] also argues that his attorneys failed him during plea
        bargaining. The Court, mindful that a criminal defendant has no
        constitutional right to engage in plea bargaining, also finds that
        [Rowe] has failed to show that [his] attorneys . . . did not act
        effectively in attempting to negotiate a plea bargain on [Rowe’s]
        behalf.


                                                ***


        23. The Court finds that [Rowe] has failed to show how [his
        attorneys’] representation of [Rowe] fell short of the standard of
        defense attorneys. The Court is left with the presumption that
        each defense attorney performed effectively as [Rowe’s] counsel.


                                                ***


        26. In light of [Rowe’s] admission of guilt, and as this Court
        heard ample argument and evidence submitted at the three
        evidentiary hearings, the Court finds that the April 5, 2018[,


Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019   Page 11 of 26
               hearing] is unnecessary and that sufficient evidence has been
               entered for this Court to make today’s determination.


       Appellant’s App. Vol. II at 23-29 (emphasis in original). The court denied

       Rowe’s petition for post-conviction relief, and this appeal ensued.


                                      Discussion and Decision
                                              Standard of Review

[15]   Rowe appeals the post-conviction court’s denial of his petition for post-

       conviction relief. As our Supreme Court has stated:


               “The petitioner in a post-conviction proceeding bears the burden
               of establishing grounds for relief by a preponderance of the
               evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).
               “When appealing the denial of post-conviction relief, the
               petitioner stands in the position of one appealing from a negative
               judgment.” Id. at 274. In order to prevail on an appeal from the
               denial of post-conviction relief, a petitioner must show that the
               evidence 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 entered 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’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) (internal quotation omitted).


       Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017).



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019   Page 12 of 26
       Further, Rowe alleges that the post-conviction court erred when it determined

       that he did not receive the ineffective assistance of counsel.


                When evaluating an ineffective assistance of counsel claim, we
                apply the two-part test articulated in Strickland v. Washington, 466
                U.S. 668, 104 S. Ct. 2052, 80 L.Ed. 2d 674 (1984). See Helton v.
                State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
                prong, “the defendant must show deficient performance:
                representation that fell below an objective standard of
                reasonableness, committing errors so serious that the defendant
                did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
                McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
                Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
                second prong, “the defendant must show prejudice: a reasonable
                probability (i.e. a probability sufficient to undermine confidence
                in the outcome) that, but for counsel’s errors, the result of the
                proceeding would have been different.” Id. (citing Strickland, 466
                U.S. at 694, 104 S. Ct. 2052).


       Campbell v. State, 19 N.E.3d 271, 274 (Ind. 2014). The “[f]ailure to satisfy either

       prong will cause the claim to fail.” French v. State, 778 N.E.2d 816, 824 (Ind.

       2002).


                        Issue One: Motions for Partial Summary Disposition

[16]   Rowe first contends that the post-conviction court erred when it denied his two

       motions2 for partial summary disposition. Indiana Post-Conviction Rule 1(4)(g)

       provides that the court




       2
        Rowe filed a third motion for partial summary judgment, which the post-conviction court also denied. But
       Rowe does not appeal the post-conviction court’s denial of that motion.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019              Page 13 of 26
               may grant a motion by either party for summary disposition of
               the petition when it appears from the pleadings, depositions,
               answer to interrogatories, admission, stipulations of fact, and any
               affidavits submitted, that there is no genuine issue of material fact
               and the moving party is entitled to judgment as a matter of law.


       As the Indiana Supreme Court has stated:


               The summary judgment procedure that is available under
               Indiana Post-Conviction Rule 1(4)(g) is the same as under Trial
               Rule 56(C). . . . The moving party must designate evidence to
               prove that there are no genuine issues of material fact and that he
               is entitled to judgment as a matter of law. After such a showing,
               the burden shifts to the nonmoving party to show that there is a
               genuine issue of material fact. Id. Any doubts about the
               existence of a fact or the inferences to be drawn therefrom are to
               be resolved in favor of the nonmoving party. Id.


       Hough v. State, 690 N.E.2d 267, 269-70 (Ind. 1997) (internal citation omitted).3


[17]   Here, Rowe contends that the post-conviction court erred when it denied his

       two motions for summary disposition because he “designated sufficient facts

       and admissible evidence . . . to demonstrate that there is no genuine issue of

       any material fact and that Rowe is entitled to summary judgment as a matter of

       law.” Appellant’s Br. at 37. We address each motion in turn.



       3
          The State asserts that Rowe’s arguments on this issue are moot since the post-conviction court entered a
       final judgment denying his petition. We cannot agree. The summary judgment procedure under Indiana
       Post-Conviction Rule 1(4)(g) is the same as under Trial Rule 56(C). Hough, 690 N.E.2d at 269. And this
       Court “has long addressed appeals from denials of motions for summary judgment following entry of a final
       judgment or order.” Keith, v. Mendus, 661 N.E.2d 26, 35 (Ind. Ct. App. 1996). Indeed, a nonfinal summary
       judgment that is not certified for interlocutory review would otherwise not be appealable. Accordingly, we
       will review the post-conviction court’s denial of Rowe’s motions for summary disposition even though the
       court subsequently entered a final judgment.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019                 Page 14 of 26
                              First Motion for Partial Summary Disposition

[18]   Rowe contends that the trial court erred when it denied his first motion for

       summary disposition. In that motion, Rowe alleged that he was entitled to

       judgment as a matter of law on his claim of ineffective assistance of counsel

       because his pretrial and trial attorneys had failed to communicate his twelve-

       year plea to the State and because his trial counsel had failed to communicate

       the State’s twenty-year plea to him. In support of that motion, Rowe included

       as an attachment his affidavit in which he stated that neither his pretrial nor his

       trial counsel had communicated his proposed plea to the State and that his trial

       counsel had never informed him of the twenty-year plea offer from the State,

       which he asserted he would have accepted had he known about it. He also

       attached a letter from his pretrial counsel in which his pretrial counsel informed

       Rowe that Rowe’s proposed twelve-year plea agreement “will simply not fly”

       with the State and that she was “not about to take a plea to the Prosecuting

       Attorney that will cause him to laugh” at her. Ex. at 7. And Rowe contends

       that, because the State failed to designate evidence in response to his motion to

       demonstrate that a genuine question of material fact existed, he was entitled to

       judgment as a matter of law. We cannot agree.


[19]   As stated above, the summary disposition procedure that is available under

       Post-Conviction Rule 1(4)(g) is the same as the procedure for summary

       judgment under Trial Rule 56(C). See Hough, 690 N.E.2d at 269. The initial

       burden was on Rowe as the movant for summary disposition to designate

       evidence to prove that there were no genuine issues of material fact. We agree

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019   Page 15 of 26
       with Rowe that the evidence he designated—his own affidavit and the letter

       from his pretrial counsel—demonstrated that no genuine issue of material fact

       existed regarding whether either of his attorneys relayed his twelve-year

       agreement to the State. Indeed, there is no dispute that neither attorney took

       that offer to the State.


[20]   However, in order to show that he was entitled to summary disposition on his

       claim that his pretrial and trial counsel both rendered ineffective assistance for

       failing to take his twelve-year plea to the State, Rowe was required to establish

       that there was no genuine issue of material fact regarding whether that failure

       constituted deficient performance and whether Rowe had been prejudiced by

       that deficient performance. See Campbell, 19 N.E.3d at 274. And Rowe did not

       designate any evidence to demonstrate that the State would have accepted the

       twelve-year plea. Accordingly, Rowe did not designate any evidence to

       demonstrate that he was prejudiced by his counsel’s failure to take his proffered

       plea agreement to the State.


[21]   Still, in his first motion for summary disposition, Rowe also asserted that he

       was entitled to judgment as a matter of law on his claim that he had received

       ineffective assistance from his trial counsel because his trial counsel had failed

       to relay the State’s twenty-year plea offer to him. But the only evidence that

       Rowe designated to support his claim that his trial counsel had not

       communicated the State’s plea to him was his own self-serving affidavit. And it

       is well settled that summary judgment “is inappropriate if a reasonable trier of

       fact could choose to disbelieve the movant’s account of the facts.” Insuremax

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019   Page 16 of 26
       Ins. Co. v. Bice, 879 N.E.2d 1187, 1190 (Ind. Ct. App. 2008). Here, the post-

       conviction court was not required to believe Rowe’s statements in his affidavit.

       Accordingly, we cannot say that the post-conviction court erred when it denied

       his motion for partial summary disposition as it relates to either his attorneys’

       failure to relay his twelve-year proposal or his trial counsel’s alleged failure to

       communicate the State’s twenty-year plea offer to him. We therefore affirm the

       post-conviction court’s denial of Rowe’s first motion for partial summary

       disposition.


                            Second Motion for Partial Summary Disposition

[22]   Rowe also asserts that the post-conviction court erred when it denied his second

       motion for summary disposition in which he asserted that his trial counsel had

       rendered ineffective assistance when he failed to communicate the State’s

       twenty-year plea offer to Rowe. In support of that motion, Rowe again

       attached an affidavit in which he stated that his trial counsel had never

       communicated the State’s offer to him.


[23]   But, again, the post-conviction court was not required to believe Rowe’s self-

       serving affidavit. See Insuremax Ins. Co., 879 N.E.2d at 1190. Further, even if

       Rowe had met his burden to designate evidence that proved that there were no

       genuine issues of material fact and that he was entitled to judgment as a matter

       of law, the burden then shifted to the State to show that there was a genuine

       issue of material fact. See Hough, 690 N.E.2d at 269-70. And, in response to

       Rowe’s second motion, the State designated as evidence the affidavit from

       Rowe’s trial counsel in which he stated that he had communicated the State’s
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019   Page 17 of 26
       plea offer to Rowe but that Rowe had rejected that offer. Accordingly, the State

       met its burden to demonstrate that a question of material fact existed regarding

       whether Rowe’s trial counsel had communicated the State’s plea offer to Rowe.

       We therefore cannot say that the post-conviction court erred when it denied

       Rowe’s second motion for partial summary disposition.


                              Issue Two: Effectiveness of Pretrial Counsel

[24]   Rowe next contends that he received ineffective assistance from his pretrial

       counsel. To demonstrate that he received ineffective assistance from his pretrial

       counsel, Rowe was required to show deficient performance and that he was

       prejudiced by that deficient performance. Campbell, 19 N.E.3d 271 at 274.

       Rowe specifically alleges that he received ineffective assistance from his pretrial

       counsel because she “fail[ed]/refuse[d] to relay Rowe’s 12[-]year plea offer to

       the State[.]” Appellant’s Br. at 43. But we agree with the State that Rowe has

       not demonstrated that the failure of his pretrial counsel to relay his proposed

       twelve-year agreement to the State amounted to deficient performance.


[25]   As the Indiana Supreme Court has stated:


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


       Stevens v. State, 770 N.E.2d 739, 746-47 (Ind. 2002) (citations omitted).

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019   Page 18 of 26
[26]   Rowe questioned his pretrial counsel at his post-conviction hearing. Rowe’s

       pretrial counsel testified that, “if [she] ha[s] a client who is ultimately interested

       in fruitful negotiation, then in certain circumstances it certainly doesn’t do

       anyone any good to start in a position that will solely put the State of the

       mindset of either anger or disdain” because, at that point, “there’s never going

       to be any type of fruitful negotiation.” Tr. Vol. II at 116. Based on that

       testimony it is clear that Rowe’s pretrial counsel made a strategic decision not

       to communicate his twelve-year plea offer to the State. We cannot say that

       Rowe’s pretrial counsel’s strategy to not take a plea agreement to the State that

       would potentially ruin any chance for future, fruitful negotiations was “‘so

       deficient or unreasonable as to fall outside the objective standard of

       reasonableness.’” State v. Miller, 771 N.E.2d 1284, 1288 (Ind. Ct. App. 2002)

       (quoting Potter v. State, 684 B.E.2d 1127, 1133 (Ind. 1997)). Accordingly, Rowe

       has not demonstrated that the post-conviction court erred when it found that his

       pretrial counsel was not ineffective.


                              Issue Three: Effectiveness of Trial Counsel

[27]   Rowe next contends that the post-conviction court erred when it concluded that

       he received the effective assistance of trial counsel. Again, to show that he

       received the ineffective assistance of trial counsel, Rowe must demonstrate that

       his counsel’s performance was deficient and that he was prejudiced by that

       deficient performance. See Campbell, 19 N.E.3d at 274. And “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). Rowe specifically contends

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019   Page 19 of 26
       that his trial counsel rendered ineffective assistance when he failed to

       communicate Rowe’s proposed twelve-year plea offer to the State and when he

       failed to communicate the State’s twenty-year plea offer to Rowe. We address

       each contention in turn.


                                       Rowe’s Twelve-Year Plea Offer

[28]   Rowe first contends that his trial counsel’s performance was deficient because

       his trial counsel did not relay his proposed twelve-year agreement to the State.

       Unlike with his pre-trial counsel, Rowe was not able to question his trial

       counsel regarding his refusal to relay Rowe’s proposed agreement to the State.

       Accordingly, we cannot ascertain whether Rowe’s trial counsel’s strategy was

       reasonable or whether it was deficient.


[29]   However, even if Rowe could demonstrate that his trial counsel’s strategy was

       deficient, Rowe has not demonstrated that he was prejudiced by his trial

       counsel’s failure to present to the State Rowe’s proposed plea agreement. At

       the post-conviction hearing, Rowe was able to question the prosecuting

       attorney who had filed the charges against him. The prosecuting attorney

       testified that he likely would not have accepted that offer. Rather, he likely

       would have countered Rowe’s twelve-year plea with a plea offer that contained

       terms that “certainly would not have been any less” than the terms contained in

       the twenty-year plea offer. Id. at 128. Accordingly, even if Rowe’s trial counsel

       had relayed the twelve-year plea offer, the State would have responded with

       terms that were no less than the terms contained in the twenty-year offer that

       the State offered to Rowe. We therefore cannot say that, but for his trial
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019   Page 20 of 26
       counsel’s failure to communicate the twelve-year plea agreement, Rowe would

       have received a better offer than the twenty-year plea the State offered to

       Rowe’s trial counsel. Rowe has not demonstrated that he received ineffective

       assistance of counsel on this issue.


                                       State’s Twenty-Year Plea Offer

[30]   Rowe next asserts that he received ineffective assistance from his trial counsel

       when his counsel failed to communicate the State’s twenty-year plea offer to

       him. Rowe contends that the post-conviction court erred when it denied his

       petition for post-conviction relief because the court’s findings do not support its

       judgment that he received the effective assistance of trial counsel on this issue.


[31]   It is well settled that “[a] court that hears a post-conviction claim must make

       findings of fact and conclusions of law on all issues presented in the petition.”

       Allen v. State, 749 N.E.2d 1158, 1164 (Ind. 2001). Further, the post-conviction

       court’s findings “must be supported by facts and the conclusions must be

       supported by the law.” Id. On appeal, Rowe specifically asserts that the

       findings do not support the court’s conclusion that “sufficient evidence has been

       entered” and that it did not need to hold the April 5, 2018, hearing in order to

       conclude that Rowe received the effective assistance of trial counsel as it relates

       to the State’s twenty-year plea offer. Appellant’s App. Vol. II at 29. We must

       agree.


[32]   Here, to support its conclusion that Rowe had failed to show that his trial

       counsel acted ineffectively in attempting to negotiate a plea bargain on Rowe’s


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019   Page 21 of 26
       behalf, the post-conviction court first found that Rowe had no constitutional

       right to engage in plea bargaining. The post-conviction court is correct that “[a]

       criminal defendant has no constitutional right to engage in plea bargaining.”

       Bethea v. State, 983 N.E.2d 1134, 1144 (Ind. 2013) (internal citation omitted).

       Further, the State has no duty to plea bargain. See id.


[33]   However, whether Rowe has a constitutional right to plea bargain was not the

       question before the post-conviction court. Rather, the question was whether

       Rowe had received effective assistance from his trial counsel. And even though

       Rowe has no constitutional right to plea bargain, “‘defense counsel has the duty

       to communicate formal offers from the prosecution to accept a plea on terms

       and conditions that may be favorable to the accused.’” Woods v. State, 48

       N.E.3d 374, 381 (Ind. Ct. App. 2015) (quoting Missouri v. Frye, 566 U.S. 134,

       145 (2012)). Accordingly, once the State decided to engage in plea bargaining

       and offer a plea to Rowe’s trial counsel, Rowe’s trial counsel was obligated to

       communicate that offer to Rowe. And the failure of a defense attorney to

       communicate a plea offer to an accused is deficient performance. See id.


[34]   Because the question of whether Rowe received the effective assistance of trial

       counsel turns on whether his trial counsel communicated the State’s twenty-

       year plea offer to him and not whether he had the right to engage in plea

       bargaining, the post-conviction court’s finding that Rowe did not have the

       constitutional right to engage in plea bargaining does not support its conclusion

       that Rowe did not receive ineffective assistance from his trial counsel.



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019   Page 22 of 26
[35]   The post-conviction court also based its ultimate conclusion that the

       supplemental hearing was unnecessary and that Rowe had received the effective

       assistance of trial counsel on its finding that Rowe admitted to having

       committed the underlying offenses to the post-conviction court. But Rowe’s

       guilt or innocence of those offenses is again not relevant to the question of

       whether his trial counsel had conveyed the plea agreement from the State and,

       therefore, rendered effective assistance. Indeed, there is no dispute that Rowe’s

       underlying convictions are supported by the evidence. And, in Woods, this

       Court held that a defendant had been prejudiced by his trial counsel’s failure to

       convey an offer from the State for him to plead guilty to robbery, as a Class B

       felony, when the defendant never denied having participated in the robbery and

       when his trial strategy had been to admit to the Class B felony robbery because

       those facts were both “consistent with his testimony that he would have

       accepted the plea offer if he had known about it.” 48 N.E.2d at 381.


[36]   Similarly, here, Rowe’s testimony that he committed burglary and could have

       pleaded guilty to burglary, as a Class A felony, is consistent with his testimony

       that he would have accepted the State’s offer to plead guilty to either burglary

       or robbery, as a Class A felony. Rowe’s admission of guilt does not support the

       post-conviction court’s finding that his counsel acted effectively but, rather, is

       consistent with his testimony that he was prejudiced by his trial counsel’s

       alleged failure to communicate the plea agreement because he would have

       accepted the State’s twenty-year plea offer, which would have been a materially

       more favorable sentence than the sentence he ultimately received.


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019   Page 23 of 26
       Accordingly, the post-conviction court’s finding that Rowe admitted to his guilt

       does not support the conclusion that Rowe received the effective assistance of

       counsel.


[37]   The post-conviction court’s findings that Rowe did not have a constitutional

       right to engage in plea bargaining and that Rowe had admitted his guilt do not

       support the post-conviction court’s conclusion that he did not receive the

       ineffective assistance of trial counsel. Before the post-conviction court can

       make a conclusion regarding whether Rowe received effective assistance from

       his trial counsel related to the State’s twenty-year plea, the court must first

       determine whether Rowe’s trial counsel presented the State’s plea offer to

       Rowe. Here, the only evidence submitted that Rowe’s counsel conveyed the

       State’s plea offer to him was an affidavit by Rowe’s trial counsel in which he

       stated that he had communicated the State’s plea offer to Rowe.


[38]   But, as discussed above, the affidavit from Rowe’s trial counsel created a

       genuine issue of material fact regarding whether Rowe’s trial counsel had

       relayed the plea agreement to him. And Rowe should have been provided the

       opportunity to present evidence to resolve that question of fact. However,

       because the post-conviction court cancelled the supplemental hearing at which

       Rowe’s trial counsel was scheduled to appear, Rowe was not able to question

       his trial counsel in order to challenge the statements made in the affidavit or

       otherwise present evidence—whether in the form of testimony from his trial

       counsel or exhibits—in support of his claim that his trial counsel had not

       communicated the State’s offer to him and had, therefore, not rendered

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019   Page 24 of 26
       effective assistance. Thus, while the affidavit was sufficient to preclude

       summary disposition, without Rowe having the opportunity to challenge it, the

       affidavit was not sufficient for the trial court to determine that Rowe had

       received the effective assistance of trial counsel. Accordingly, we remand to the

       post-conviction court to hold the supplemental hearing and to allow Rowe to

       question his trial counsel and to present evidence relevant to the question of

       whether Rowe’s trial counsel had communicated the State’s twenty-year plea

       offer to him.4


[39]   In sum, we hold that the post-conviction court did not err when it denied

       Rowe’s two motions for summary disposition or when it concluded that Rowe

       had received effective assistance from his pretrial counsel. Accordingly, we

       affirm the post-conviction court on those issues. However, we hold that the

       post-conviction court’s findings regarding Rowe’s constitutional right to plea

       bargain and his admission of guilt do not support its conclusion that Rowe had

       received effective assistance from his trial counsel as it relates to the State’s plea

       offer. We further hold that Rowe must be given the opportunity to present

       evidence to support his claim that his counsel did not communicate the State’s

       offer to him. We therefore reverse the post-conviction court’s order on that




       4
          We also agree with Rowe that, contrary to the post-conviction court’s statement in its findings, the remedy
       available to Rowe if his trial counsel did ineffectively fail to tender the State’s twenty-year offer to him is for
       the court and the parties to proceed as if Rowe had just received the State’s offer. See Woods, 48 N.E.3d at
       383. A new trial is then only necessary if Rowe accepts the plea but the trial court rejects it. See id.
       Accordingly, on remand, if Rowe demonstrates that his trial counsel failed to convey the plea agreement and
       that the failure to communicate the plea prejudiced him, the court and the parties are instructed to proceed as
       if Rowe has just received the twenty-year offer. See id.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019                       Page 25 of 26
       issue, and we remand with instructions for the post-conviction court to hold the

       supplemental hearing.


[40]   Affirmed in part, reversed in part, and remanded for further proceedings.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1031 | April 10, 2019   Page 26 of 26
