      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                          Gregory F. Zoeller
      Public Defender of Indiana                                Attorney General

      Vickie Yaser                                              Brian Reitz
      Deputy Public Defender                                    Deputy Attorney General
      Indianapolis, Indiana                                     Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Derrell Woods,                                            December 29, 2015
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                20A03-1506-PC-688
              v.                                                Appeal from the Elkhart Circuit
                                                                Court
      State of Indiana,                                         The Honorable Terry C.
      Appellee-Respondent.                                      Shewmaker, Judge
                                                                Trial Court Cause No.
                                                                20C01-1212-PC-117           Dec 29 2015, 8:22 am




      Najam, Judge.


                                        Statement of the Case
[1]   Derrell Woods appeals the post-conviction court’s denial of his amended

      petition for post-conviction relief. Woods presents a single dispositive issue for

      our review, namely, whether the post-conviction court erred when it concluded

      that Woods was not denied the effective assistance of trial counsel. We reverse.




      Court of Appeals of Indiana | Opinion 20A03-1506-PC-688 | December 29, 2015            Page 1 of 20
                                     Facts and Procedural History
[2]   We summarized the facts and procedural history of this case in Woods’ direct

      appeal, Woods v. State, No. 20A04-0401-CR-46, slip op. at 2-3 (Ind. Ct. App.

      November 12, 2004), as follows:

                On April 15, 2003, Gail Williams and her husband, Frank, went
                to Walgreens in Elkhart, Indiana, to purchase prescription
                medication for Gail’s mother. After exiting the store, Frank
                placed their purchases in the car while Gail stood on the
                sidewalk. Brandon Robinson and Woods, who had been
                standing out of view on the side of the Walgreens building,
                approached Gail from behind. Robinson pushed Gail down
                while Woods grabbed Gail’s purse from her arm. Both men then
                took off running. Gail fell to the ground after being pushed and
                broke her left leg. She also had bruises on her left arm where
                Woods had struggled with her when he grabbed her purse.
                Subsequently, Gail’s leg was placed in a splint, and she received
                medication for the pain. On April 30, 2003, Gail’s orthopedist
                replaced the leg splint with a cast, which she wore for over four
                weeks. Gail continued taking medication for the pain. After
                Gail’s cast was removed, she used a wheelchair until she learned
                through physical therapy how to walk again. Approximately
                eight months after the robbery, Gail still experienced pain and
                had difficulty walking.

                The State charged Woods with robbery resulting in serious bodily
                injury, a Class A felony.[ 1] After a bench trial, the trial court
                convicted Woods as charged and sentenced him to forty-five
                years in the Indiana Department of Correction, ten years of
                which were suspended.




      1
          Woods was fifteen-years-old at the time of the offense, but he was waived into adult court.

      Court of Appeals of Indiana | Opinion 20A03-1506-PC-688 | December 29, 2015                       Page 2 of 20
      Woods raised four issues on direct appeal, including the sufficiency of the

      evidence and the appropriateness of his sentence. We affirmed his conviction

      and sentence. Id.


[3]   On December 19, 2012, Woods filed a pro se petition for post-conviction relief,

      and he filed an amended petition, by counsel, on September 11, 2013. In his

      amended petition, Woods alleged that his trial counsel was ineffective when he:

      failed to introduce certain mitigating evidence at sentencing; and failed to

      communicate to Woods a guilty plea offer prior to trial. Following a hearing,

      the post-conviction court denied Woods’ petition. This appeal ensued.


                                      Discussion and Decision
                                             Standard of Review

[4]   Woods appeals the post-conviction court’s denial of his amended petition for

      post-conviction relief. Our standard of review is clear:

              [The petitioner] bore the burden of establishing the grounds for
              post-conviction relief by a preponderance of the evidence. See
              Ind. Post-Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d
              591, 597 (Ind. 2001). Post-conviction procedures do not afford a
              petitioner with a super-appeal, and not all issues are available.
              Timberlake, 753 N.E.2d at 597. Rather, subsequent collateral
              challenges to convictions must be based on grounds enumerated
              in the post-conviction rules. Id. If an issue was known and
              available, but not raised on direct appeal, it is waived. Id. If it
              was raised on appeal, but decided adversely, it is res judicata. Id.

              In reviewing the judgment of a post-conviction court, appellate
              courts consider only the evidence and reasonable inferences
              supporting the post-conviction court’s judgment. Hall v. State,
      Court of Appeals of Indiana | Opinion 20A03-1506-PC-688 | December 29, 2015   Page 3 of 20
              849 N.E.2d 466, 468 (Ind. 2006). The post-conviction court is
              the sole judge of the evidence and the credibility of the witnesses.
              Id. at 468-69. Because he is now appealing from a negative
              judgment, to the extent his appeal turns on factual issues [the
              petitioner] must convince this court that the evidence as a whole
              leads unerringly and unmistakably to a decision opposite that
              reached by the post-conviction court. See Timberlake, 753 N.E.2d
              at 597. We will disturb the decision only if the evidence is
              without conflict and leads only to a conclusion contrary to the
              result of the post-conviction court. Id.


      Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied.


[5]   Further, the post-conviction court in this case made findings of fact and

      conclusions of law in accordance with Indiana Post-Conviction Rule 1(6).

      “Although we do not defer to the post-conviction court’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.’” Overstreet v. State, 877 N.E.2d 144, 151 (Ind.

      2007) (citation omitted).


[6]   Woods contends that he was denied the effective assistance of trial counsel in

      violation of the Sixth Amendment to the United States Constitution. A claim

      of ineffective assistance of counsel must satisfy two components. Strickland v.

      Washington, 466 U.S. 668 (1984). First, 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. Id. at 687-88. Second, the


      Court of Appeals of Indiana | Opinion 20A03-1506-PC-688 | December 29, 2015   Page 4 of 20
      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. at 694.


                                             Deficient Performance

[7]   Woods contends that his trial counsel’s performance was deficient in two

      respects. However, because we find one of Woods’ allegations dispositive on

      appeal, we need only address whether his trial counsel was ineffective when he

      did not communicate to Woods a guilty plea offer from the State. In particular,

      Woods presented evidence to the post-conviction court, without objection, that,

      on June 23, 2003, 2 John Maciejczyk, the prosecutor, sent a signed and dated

      letter, on official letterhead, to R. Brent Zook, Woods’ defense counsel,

      proposing the following plea: 3


              1.     In 03FA100,[ 4] the Defendant will plead guilty to Count I,
              Robbery, as a Class B Felony.
              2.     In 03FB090 [sic], the Defendant will plead guilty to Count
              II, Auto Theft, a Class D Felony and Count III, Possession of
              Cocaine, a Class D Felony.




      2
        Woods was arrested on April 25, 2003, and he immediately confessed to stealing the victim’s purse and
      cooperated with police.
      3
        In addition to the Class A felony robbery charge in Cause No. 20C01-0305-FA-90, Woods was facing
      charges in Cause No. 20C01-0305-FB-100 for carjacking, a Class B felony; auto theft, as a Class D felony;
      and possession of cocaine, as a Class D felony.
      4
        The parties agree that there was no cause number ending in “FA-100” involving Woods and that this must
      have been a typographical error. The only A felony charge Woods was facing at the time was the one in
      Cause Number 20C01-0305-FA-90 for the robbery of Gail Williams.

      Court of Appeals of Indiana | Opinion 20A03-1506-PC-688 | December 29, 2015                     Page 5 of 20
                3.    In 03FB090 [sic], the the [sic] state will dismiss Count I,
                Carjacking, a Class B felony.

                4.    The Court will otherwise be free to impose whatever
                sentence it deems appropriate.

                If not accepted, this plea offer will expire this Thursday.[ 5] I
                enclose the discovery for 03FB100, which appears to not have
                been provided earlier.


      Pet. Ex. 11. Woods also presented evidence that Zook received that letter on

      June 25, 2003.


[8]   Woods testified at the hearing on his petition for post-conviction relief that

      Zook never communicated that plea offer to him and that, if he had, Woods

      would have accepted the offer. Woods testified further that, sometime after

      June 2003, Zook communicated an offer to have Woods plead guilty to the A

      felony robbery with sentencing left to the trial court’s discretion. Zook

      recommended to Woods that he reject that offer, which Woods did.


[9]   Zook was deceased at the time of Woods’ post-conviction hearing. In lieu of

      Zook’s testimony, Woods called Clifford Williams, the Chief Public Defender

      for Elkhart County, who had worked with Zook and who had reviewed Zook’s

      file regarding Woods’ defense in cause numbers FA-90 and FB-100. In support

      of his contention that the June 23, 2003, plea offer had been made by the State

      but not communicated to Woods, Woods submitted into evidence a document



      5
          June 23, 2003, was a Monday, so “this Thursday” referred to Thursday, June 26, 2003.

      Court of Appeals of Indiana | Opinion 20A03-1506-PC-688 | December 29, 2015                Page 6 of 20
       entitled “Motion to Withdraw Plea of Not Guilty and Enter Plea of Guilty and

       Plea Agreement and Disclosure.” Pet. Ex. 8. That motion contained the same

       terms of the plea offer issued by Maciejczyk on June 23, 2003, but it is neither

       signed nor dated. Williams testified that such a document “would have been

       prepared by [the public defender’s office] as a result of the plea offer which was

       extended in the letter” of June 23, 2003. Tr. at 139. Maciejczyk did not testify

       at the post-conviction hearing, but he submitted an affidavit stating that he did

       not have any recollection of plea negotiations in Woods’ case.


[10]   Williams also testified, without objection by the State, that Zook had made

       handwritten notes on a copy of the June 23, 2003, offer letter. In particular, the

       words “30 cap” were written and crossed out, and the words “no cap” were

       written next to that notation. Pet. Ex. 6. The “B” in “Class B Felony” was

       crossed out in the first paragraph of the offer letter, and the letter “A” was

       written above it. Id. And there were some notations at the bottom of the offer

       letter that are hard to discern. Williams testified that those notations likely

       reflected plea negotiations between Zook and Maciejczyk. Finally, Williams

       attempted to testify regarding what Zook may have indicated in other

       handwritten notes on the exterior of a file folder maintained in Woods’ case,

       but the State objected to that testimony, and the post-conviction court sustained

       the objection.


[11]   In its findings and conclusions, the post-conviction court stated in relevant part

       as follows:



       Court of Appeals of Indiana | Opinion 20A03-1506-PC-688 | December 29, 2015   Page 7 of 20
        41. Petitioner further argues that his attorney was ineffective
        during plea negotiations for failing to communicate a favorable
        plea offer that Petitioner would have accepted. Petitioner
        contends that there was an offer from the State that would have
        allowed him to plead guilty to Robbery as a Class B felony and
        two Class D felonies with dismissal of the carjacking count.
        Rather, the only plea offer he ever saw required him to plead
        guilty to a Class A felony, and he rejected this offer after
        consulting with his family and counsel.

        42. As previously noted, Petitioner’s counsel is now deceased.
        Mr. Williams, Chief Public Defender, brought all files pertaining
        to Petitioner from his office to the post[-]conviction hearing, and
        [he] testified that it appeared from the file in the instant case that
        ongoing plea negotiations were reflected. He noted a document on
        which was written what he presumed to be an offer; however, it was not
        ascertainable from where the document originated. There were several
        scribbles and writings on the document, including a notation
        “Deft plead to Robbery A,[”] “B felony” was lined out, and “30
        cap” scribbled out and then “no cap” written in. Essentially, Mr.
        Williams was able to say from looking at the notes in the file that
        Mr. Zook was involved in negotiating a plea with the State, but
        could not testify about the details of that process. Mr. Williams
        stated that it was uncertain if the document was prepared by the Public
        Defender’s Office or the State, and the document did not establish
        whether or not it was presented to Petitioner or if so, at what
        stage. There was a note in the file in what Mr. Williams believed
        to be Mr. Zook’s handwriting that Mr. Zook planned to see
        Petitioner, but beyond that, Mr. Williams said that it was not
        possible with any degree of certainty to say what the entries
        meant or who prepared the documents.

        43. Mr. Williams’ testimony establishes that the document relied upon
        by Petitioner in support of his contention that his counsel failed to
        produce an acceptable plea offer to him is non-discernible hearsay. No
        other evidence in this regard was presented but for Petitioner’s self-serving
        statement that he would have pled to a more favorable offer had it been
Court of Appeals of Indiana | Opinion 20A03-1506-PC-688 | December 29, 2015         Page 8 of 20
               presented. Accordingly, the court cannot draw the conclusion
               based on the evidence before it that Petitioner’s counsel was
               ineffective in his representation of Petitioner with respect to any
               plea negotiations in this case.


       Appellant’s App. at 147-48 (emphases added).


[12]   On appeal, Woods first contends, and we agree, that the evidence does not

       support the post-conviction court’s findings with respect to the June 23, 2003,

       plea offer letter. The post-conviction court found that “it was not ascertainable

       from where the document originated” and that the offer letter was “non-

       discernible hearsay.” Id. While some of the handwritten notations on Zook’s

       copy of the offer letter, submitted as Petitioner’s Exhibit 6, are “non-

       discernible,” the original type-written letter on official letterhead, signed by

       Maciejczyk, and dated June 23, 2003, and admitted separately as Petitioner’s

       Exhibit 11, is clean and represents an offer by the State to dismiss the Class A

       felony robbery charge and the carjacking charge in exchange for Woods’ plea to

       Class B felony robbery, Class D felony auto theft, and Class D felony

       possession of cocaine, with sentencing left to the trial court’s discretion.

       Indeed, in preparation for the post-conviction hearing, Woods obtained a copy

       of the letter submitted as Petitioner’s Exhibit 11 from the State, and the post-

       conviction court admitted that exhibit without objection at the hearing on

       Woods’ post-conviction petition. Moreover, Zook’s office had received the

       letter, as indicated by a file-stamped copy that reads “Received June 25, 2003.”

       Pet. Ex. 6.



       Court of Appeals of Indiana | Opinion 20A03-1506-PC-688 | December 29, 2015   Page 9 of 20
[13]   We hold that the evidence does not support the post-conviction court’s findings

       that the origin of the June 23, 2003, plea offer letter is not ascertainable and that

       the letter consists wholly of “non-discernible hearsay.” To the contrary, there

       was no dispute at the hearing that the letter was prepared by Maciejczyk, signed

       and dated, and transmitted to Zook, whose office received the letter two days

       later. Neither was there any dispute that the letter contained a plea offer with

       clear terms. 6 We agree with the post-conviction court that the handwritten

       notations on Petitioner’s Exhibit 6 are non-discernible hearsay. But the same

       letter without notations admitted as Petitioner’s Exhibit 11 does not suffer from

       any such infirmity and was obviously prepared by Maciejczyk, as indicated by

       the letterhead and his signature.


[14]   Second, in paragraph 42 of the court’s findings and conclusions, the court notes

       that “Mr. Williams stated that it was uncertain if the document was prepared by

       the Public Defender’s Office or the State.” Appellant’s App. at 148 (emphasis

       added). In the sentences leading up to that sentence in paragraph 42, when the

       trial court refers to “several scribbles and writings on the document,” the court

       is clearly referring to Exhibit 6, the copy of the plea offer letter with Zook’s

       handwritten notes. While Williams initially testified that he was not sure

       whether his office or the prosecutor’s office had prepared the motion to




       6
         Again, there were typographical errors with respect to the cause numbers, but those errors were not
       substantive.

       Court of Appeals of Indiana | Opinion 20A03-1506-PC-688 | December 29, 2015                    Page 10 of 20
       withdraw guilty plea (Exhibit 8), 7 Williams gave no such testimony with respect

       to the plea offer letter containing Zook’s handwritten notes (Exhibit 6) or, for

       that matter, the clean copy of the plea offer letter (Exhibit 11). Rather,

       Williams testified that the plea offer letter admitted as Exhibit 6 “is a document

       that originated from the prosecuting attorney’s office June 23, 2003[.]” Tr. at

       129. Thus, the post-conviction court’s finding that Williams could not be

       certain whether the plea offer letter was prepared by the Public Defender’s

       office or the State is not supported by the evidence. 8


[15]   Accordingly, there can be no dispute that the State offered Woods’ attorney a

       plea deal for Woods to plead guilty to a lesser charge, and the trial court’s

       findings and conclusion to the contrary are clear error. See Overstreet, 877

       N.E.2d at 151. In Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012), the United

       States Supreme Court squarely addressed the issue presented in this case and

       held as follows:

                  This Court now holds that, as a general rule, defense counsel has
                  the duty to communicate formal offers from the prosecution to




       7
            Williams ultimately testified that his office would likely have prepared the document submitted as Exhibit
       8.
       8
          The dissent points out that, on cross-examination, Williams testified that he “can’t definitively say”
       whether the hand-written modification of paragraph 1 of the plea offer in Exhibit 6 from Class B Felony to
       Class A felony was made by Zook during negotiations or by Maciejczyk before Zook received it. Tr. at 167.
       While that is true, it is also irrelevant because both the trial court and the majority have disregarded Exhibit 6
       as containing non-discernible hearsay. Rather, it is undisputed that Exhibit 11 is a signed and dated copy of
       the plea offer letter that was found in Maciejczyk’s file and contained no handwritten notations. That
       document speaks for itself, and whether subsequent negotiations resulted in handwritten notations on the
       letter by Zook and/or Maciejczyk has no bearing on whether the original offer, as indicated in Exhibit 11,
       was extended to Zook.

       Court of Appeals of Indiana | Opinion 20A03-1506-PC-688 | December 29, 2015                         Page 11 of 20
               accept a plea on terms and conditions that may be favorable to
               the accused. Any exceptions to that rule need not be explored
               here, for the offer was a formal one with a fixed expiration date.
               When defense counsel allowed the offer to expire without
               advising the defendant or allowing him to consider it, defense
               counsel did not render the effective assistance the Constitution
               requires.


       Here, Maciejczyk made a formal plea offer with a fixed expiration date, and the

       terms of the plea offer were favorable to Woods. Because the undisputed

       evidence shows that Zook did not communicate the June 23, 2003, offer to

       Woods, his performance was deficient.


                                                     Prejudice

[16]   Having shown that Zook’s performance was deficient, Woods must

       demonstrate that he was prejudiced by Zook’s failure to communicate the plea

       offer to him. Woods maintains that, had Zook told him about the June 23,

       2003, plea offer, he would have accepted it. That plea offer left sentencing to

       the trial court’s discretion, and Woods would have faced a maximum sentence

       of twenty years for the Class B felony in FA-90. Because Woods went on to be

       convicted of Class A felony robbery at a bench trial and the court sentenced

       him to forty-five years, Woods maintains that the prejudice to him here is

       obvious. Further, the undisputed facts show that Woods never denied having

       participated in the robbery and that his trial strategy was to admit to the Class B

       felony robbery, both of which are consistent with his testimony that he would

       have accepted the plea offer if he had known about it.



       Court of Appeals of Indiana | Opinion 20A03-1506-PC-688 | December 29, 2015   Page 12 of 20
[17]   In support of his contention, Woods cites Dew v. State, 843 N.E.2d 556, 571

       (Ind. Ct. App. 2006), trans. denied, where this court held that a defendant

       satisfies the prejudice prong of Strickland if he shows that, that, but for counsel’s

       actions, there was a reasonable probability that he would have accepted the plea

       offer that had not been communicated to him by defense counsel. And in Dew,

       we agreed with the United States Court of Appeals for the Sixth Circuit that a

       defendant is not required to submit objective evidence to prove that he would

       have accepted the State’s plea offer but for counsel’s actions. Id. at 568 n.9

       (citing Magana v. Hofbauer, 263 F.3d 542, 547 n.1 (6th Cir. 2001)). Thus, here,

       where Woods testified that he would have accepted the June 23, 2003, plea

       offer but for Zook’s actions, which would have resulted in a maximum twenty-

       year sentence as opposed to the forty-five year sentence imposed after the bench

       trial, Woods has satisfied the prejudice prong under Strickland.


[18]   Nonetheless, the State contends that, in addition to showing that he would have

       accepted the plea, Woods must also show “a reasonable probability the plea

       would have been entered without the prosecution cancelling it.” Appellee’s Br.

       at 22 (citing Frye, 132 S. Ct. at 1409). And the State maintains that Woods

       made no such showing. In Frye, the Court held that a defendant who alleges

       ineffective assistance of counsel for failure to communicate a plea offer must

       also show that the plea offer, if accepted by the defendant, “would have been

       adhered to by the prosecution and accepted by the trial court.” Id. at 1411. In

       Frye, the defendant, who was out on bond, was arrested on a “new offense for

       driving without a license” and, the court stated that “there [wa]s reason to

       Court of Appeals of Indiana | Opinion 20A03-1506-PC-688 | December 29, 2015   Page 13 of 20
       doubt that the prosecution would have adhered to the agreement or that the

       trial court would have accepted it . . . unless they were required by state law to

       do so.” Id.


[19]   Here, in contrast to the defendant in Frye, Woods was in jail awaiting trial

       when the June 23, 2003, plea offer was made and, thus, there is no indication

       that intervening circumstances like an arrest would have led the State to retract

       the offer or the trial court to disapprove of the plea agreement. In addition,

       Woods’ codefendant, who was nineteen years old at the time of the offense,

       pleaded guilty to Class A felony robbery approximately seven months after the

       offense, and the trial court approved the plea agreement and sentenced the

       codefendant to thirty-two years with ten years suspended. The evidence is

       largely undisputed that Woods’ codefendant, not Woods, was the one who

       pushed the victim to the ground, causing the leg fracture. And, while Woods’

       criminal history at that time was extensive, the trial court would have likely

       accepted that plea agreement because it would have saved the State the time

       and resources required for a trial. Indeed, the trial court was likely to accept the

       plea agreement given how common plea agreements are in resolving criminal

       charges. See, e.g., Frye, 132 S. Ct. at 1407 (noting that “ninety-four percent of

       state convictions are the result of guilty pleas”). Finally, there is no evidence

       that the State retracted the plea offer after it was extended to Zook.


[20]   In Lafler v. Cooper, 132 S. Ct. 1376 (2012), the defendant alleged that he was

       denied the effective assistance of counsel when his defense counsel gave him

       bad advice, which resulted in his rejection of a favorable plea offer and

       Court of Appeals of Indiana | Opinion 20A03-1506-PC-688 | December 29, 2015   Page 14 of 20
       conviction after trial. The Sixth Circuit had held that the defendant’s counsel

       had rendered ineffective assistance in that regard. On appeal to the United

       States Supreme Court, the State conceded that counsel had rendered ineffective

       assistance, but the State disputed the defendant’s contention that he was

       prejudiced thereby.


[21]   The United States Supreme Court held that the defendant had shown that “but

       for counsel’s deficient performance there is a reasonable probability he and the

       trial court would have accepted the guilty plea” that the defendant had rejected on

       counsel’s bad advice. Id. at 1391 (emphasis added). In support of that holding,

       the Court cited two pages from the Sixth Circuit’s decision where the court

       stated in relevant part that the defendant’s self-serving statement that he would

       have accepted the plea but for his counsel’s bad advice, along with evidence

       showing that defendant would have benefited from that plea agreement by

       receiving a shorter sentence than was imposed following trial, was sufficient to

       prove prejudice. 9 The Lafler decision is silent regarding the defendant’s burden



       9
           The dissent maintains that,

                 even presuming there was a valid plea offer for Class B Felony robbery, the only evidence
                 that Zook did not communicate such offer to Woods came from the testimony of Woods
                 himself. The post-conviction court was not required to believe Woods’ testimony about
                 that fact, even if his testimony was “undisputed.”

       However, in Lafler, again, the issue was not whether defense counsel had communicated a plea offer to the
       defendant, but whether defense counsel’s performance was deficient when he gave the defendant bad advice
       in rejecting the plea offer. In Lafler, the United States Supreme Court held that defendant’s self-serving
       testimony that he would have accepted the plea offer but for defense counsel’s bad advice, together with
       evidence that defendant would have benefited by the plea, was sufficient to prove prejudice. Likewise, here,
       Woods’ testimony that Zook did not extend the plea offer to him, absent any evidence to the contrary, is
       sufficient to prove prejudice. Indeed, Woods’ testimony in support of his post-conviction petition correlates
       with both his initial confession to police and his theory at trial that he was guilty of Class B, not Class A,
       felony robbery. Given that consistent position by Woods throughout the pendency of his case, there is no

       Court of Appeals of Indiana | Opinion 20A03-1506-PC-688 | December 29, 2015                      Page 15 of 20
       to show that the trial court would have accepted the proposed plea agreement.

       Thus, to the extent Frye imposes such a burden, there is no discussion of any

       evidence in support of that showing in Lafler, which was handed down the same

       day as Frye. And in Lew, this court did not impose any such burden. 843

       N.E.2d at 570-71. Regardless, we hold that Woods has demonstrated, without

       any evidence to suggest otherwise, a reasonable probability that the State would

       have kept the plea offer open until the Thursday deadline and that the trial

       court would have accepted the plea agreement.


[22]   In sum, two weeks after the instant offense, police arrested then-fifteen-year-old

       Woods, and he immediately confessed to the robbery. Witnesses, including the

       victim, agreed that Woods’ codefendant was the one who had pushed the

       victim to the ground, causing the leg fracture. Two months after Woods’ arrest,

       the State extended a plea offer to Zook for Woods to plead guilty to Class B

       felony robbery and two Class D felonies with sentencing left to the trial court’s

       discretion. That plea would have resulted in a maximum possible aggregate

       sentence of twenty-six years. The undisputed evidence shows that Zook never

       communicated that plea offer to Woods and that, if he had, Woods would have

       accepted the plea. Instead, following a bench trial, the trial court sentenced

       Woods to forty-five years with ten years suspended.




       reason to doubt that Woods would have accepted the plea offer had Zook communicated it to him. In short,
       the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-
       conviction court, namely, that Zook did not communicate the plea offer to Woods.

       Court of Appeals of Indiana | Opinion 20A03-1506-PC-688 | December 29, 2015                    Page 16 of 20
[23]   We hold that Zook rendered ineffective assistance of counsel when he did not

       communicate the June 23, 2003, plea offer to Woods, which prejudiced Woods

       when he was convicted of Class A felony robbery and sentenced to forty-five

       years. We therefore reverse the post-conviction court’s judgment and Woods’

       conviction. On remand, we instruct the court and the parties to proceed as if

       Woods has just received the June 23, 2003, plea offer, and he shall have four

       business days from the certification of this opinion to accept or reject the offer. 10

       If Woods accepts the offer but the trial court decides not to accept it, then

       Woods shall have a new trial. See Dew, 843 N.E.2d at 571.


[24]   Reversed.


       Riley, J., concurs.


       May, J., dissents with separate opinion.




       10
           The four-business-day time frame approximates the time frame provided in the plea offer, which was
       issued on a Monday with a Thursday deadline. Woods and his appellate counsel will also have at least thirty
       days before this opinion can be certified to consider the plea offer. Further, we note that, while the State
       dismissed the charges in Cause No. 20C01-0305-FB-100 following Woods’ conviction in the instant case,
       Woods must be afforded the opportunity to plead guilty to Class B felony robbery with sentencing left to the
       trial court’s discretion.

       Court of Appeals of Indiana | Opinion 20A03-1506-PC-688 | December 29, 2015                    Page 17 of 20
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Derrell Woods,                                            Court of Appeals Case No.
                                                                 20A03-1506-PC-688
       Appellant-Petitioner,

               v.

       State of Indiana,
       Appellee-Respondent.




       May, Judge, dissenting.


[25]   When a petitioner appeals the denial of a petition for post-conviction relief,

       which is a negative judgment, we may reverse only if that petitioner

       demonstrates “the evidence as a whole leads unerringly and unmistakably to a

       conclusion opposite that reached by the post-conviction court.” Hollowell v.

       State, 19 N.E.3d 263, 269 (Ind. 2014). I do not believe Woods has met that

       burden and, accordingly, I dissent.


[26]   Regarding whether Zook’s performance was deficient, the majority holds:

       “Because the undisputed evidence shows that Zook did not communicate the

       Court of Appeals of Indiana | Opinion 20A03-1506-PC-688 | December 29, 2015           Page 18 of 20
       June 23, 2003, offer to Woods, his performance was deficient.” Slip op. at ¶ 15.

       However, Zook is deceased and Maciejczyk has no memory of the plea

       negotiation process. Thus, even presuming there was a valid plea offer for

       Class B Felony robbery, 11 the only evidence that Zook did not communicate

       such offer to Woods came from the testimony of Woods himself. The post-

       conviction court was not required to believe Woods’ testimony about that fact,

       even if his testimony was “undisputed.” See Thompson v. State, 804 N.E.2d

       1146, 1149 (Ind. 2004) (“As a general rule, factfinders are not required to

       believe a witness’s testimony even when it is uncontradicted.”); see also

       Popplewell v. State, 428 N.E.2d 15, 16 (Ind. 1981) (“court was not obligated to

       believe Defendant’s self serving testimony”). Nor are we permitted to find

       Woods’ testimony credible and of sufficient weight to justify reversing the post-

       conviction court. See Walker v. State, 988 N.E.2d 1181, 1185 (Ind. Ct. App.

       2013) (“we neither reweigh evidence nor judge witness credibility”), trans.

       denied.


[27]   Woods had the heavy burden of overcoming the “strong presumption that

       counsel rendered adequate service.” Bethea v. State, 983 N.E.2d 1134, 1139




       11
          The majority also holds “there can be no dispute that the State offered Woods’ attorney a plea deal for
       Woods to plead guilty to a lesser charge, and the trial court’s findings and conclusion to the contrary are clear
       error.” Slip op. at ¶ 15. However, the majority does not acknowledge Williams’ admission that he “can’t
       definitively say” whether the hand-written modification of paragraph 1 of the plea offer in Exhibit 6 from
       Class B Felony to Class A felony was made by Zook during negotiations or by Maciejczyk before Zook
       received it. (Tr. at 167.) As Woods did not call Maciejczyk to clarify this fact, I would not second-guess the
       inferences drawn by the post-conviction court. See Walker v. State, 988 N.E.2d 1181, 1185 (Ind. Ct. App.
       2013) (“we consider only the evidence and reasonable inferences most favorable to the judgment”), trans.
       denied.

       Court of Appeals of Indiana | Opinion 20A03-1506-PC-688 | December 29, 2015                        Page 19 of 20
(Ind. 2013). Because I do not believe, based on the record before us, that our

standard of review permits us to overturn the post-conviction court’s decision, I

would affirm it.




Court of Appeals of Indiana | Opinion 20A03-1506-PC-688 | December 29, 2015   Page 20 of 20
