MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Jun 28 2017, 6:24 am
court except for the purpose of establishing                              CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Stephen M. Haines                                        Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General of Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Stephen M. Haines,                                       June 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1611-PC-2620
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         45G01-1209-PC-13



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1611-PC-2620 | June 28, 2017          Page 1 of 12
                                Case Summary and Issue
[1]   In 2010, Stephen Haines entered into a plea agreement with the State pursuant

      to which Haines pleaded guilty to murder and robbery in exchange for the

      State’s agreement not to seek a sentence of life without parole and dismissal of a

      felony murder charge. Thereafter, Haines filed a petition for post-conviction

      relief. The post-conviction court denied Haines’ petition. Haines, pro se, now

      appeals the denial of post-conviction relief. Haines raises two issues for our

      review, which we restate as: (1) whether the post-conviction court erred in

      denying his petition for post-conviction relief, and (2) whether his convictions

      violate Indiana’s constitutional prohibition against double jeopardy.

      Concluding the post-conviction court did not err in denying his petition and his

      convictions do not violate the prohibition against double jeopardy, we affirm.



                            Facts and Procedural History
[2]   Pursuant to his guilty plea, Haines stipulated to the following facts. On June

      14, 2009, Haines and three confederates formed a plan to rob a gas station in

      Gary, Indiana. The four men entered the store and Haines pointed a gun at the

      gas station clerk. Haines advanced toward the clerk and shot him in the back.

      The store clerk later died from his wounds. The four men took cartons of

      cigarettes, a VCR, and other items from the store.


[3]   The State originally charged Haines with felony murder and murder and sought

      a sentence of life without parole. Prior to trial, Haines and his attorneys,


      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-PC-2620 | June 28, 2017   Page 2 of 12
Angela Jones and Sonya Scott-Dix, entered into plea negotiations with the

State. Both Jones and Scott-Dix believed it was in Haines’ best interest to

negotiate a plea because the State possessed a “videotape which showed Mr.

Haines shooting the . . . clerk as the . . . clerk was turned around with his back

to him with his hands up. And then Mr. Haines taking items from the store

thereafter and exiting.” Transcript, Volume 2 at 12 (Attorney Jones’

testimony). After numerous rounds of negotiations, the parties reached a plea

agreement. The plea agreement provided the State would file an amended

information adding a charge of robbery as a Class B felony. Haines then

pleaded guilty to murder and robbery in exchange for the State’s agreement to

dismiss the charge of felony murder and to not seek a sentence of life without

parole. The plea agreement also provided Haines would be sentenced to the

Indiana Department of Correction for an aggregate term of eighty years; sixty-

five years for murder and fifteen years for robbery. At the guilty plea hearing,

the trial court instructed Haines on the length of his sentence:


        Court:           The parties agree that you’ll be sentenced to 65
                         years in the Department of Correction [for murder]
                         and fifteen years in the Department of Correction
                         [for robbery], with the sentences to be served
                         consecutively, meaning one after the other, total
                         being, of course, 80 years in the Department of
                         Correction . . . . Mr. Haines do you understand this
                         portion of the agreement that I reviewed with you?

        [Haines]:        Yes.

        Court:           If I decide to accept your agreement your sentence
                         is indicated within this document. To be very clear.
                         You are asking me to accept a plea agreement in

Court of Appeals of Indiana | Memorandum Decision 45A03-1611-PC-2620 | June 28, 2017   Page 3 of 12
                               your . . . case that will put you in prison for eighty
                               (80) years. If I decide to accept your agreement, this
                               will be your sentence, 80 years in the Department of
                               Correction. Do you follow me?

              [Haines]:        Yes.

              Court:           Do you have any questions on that?

              [Haines]:        No.


      Guilty Plea Hearing Transcript at 5-7.


[4]   In 2012, Haines filed his petition for post-conviction relief alleging ineffective

      assistance of trial counsel and that his convictions violated the prohibition

      against double jeopardy. The post-conviction court conducted an evidentiary

      hearing on March 31, 2015, and heard additional evidence on April 23, 2015.

      On October 19, 2016, the post-conviction court issued its findings of fact and

      conclusions thereon denying Haines’ petition for post-conviction relief. Haines,

      pro se, now appeals. Additional facts will be added as necessary.



                                 Discussion and Decision
                                   I. Post-Conviction Relief
                                      A. Standard of Review
[5]   A post-conviction proceeding affords the petitioner an “opportunity to raise

      issues that were unknown or unavailable at the time of the original trial or the

      direct appeal.” Maymon v. State, 870 N.E.2d 523, 526 (Ind. Ct. App. 2007),

      trans. denied. However, a post-conviction proceeding does not constitute “a

      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-PC-2620 | June 28, 2017   Page 4 of 12
      super appeal,” and it “provide[s] only a narrow remedy for subsequent

      collateral challenges to convictions.” Id.


[6]   Post-conviction proceedings are civil in nature and the petitioner bears the

      burden of establishing his grounds for relief by a preponderance of the evidence.

      Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied, 540 U.S. 830

      (2003). On appeal from the denial of a petition for post-conviction relief, the

      petitioner stands in the position of one appealing from a negative judgment.

      Willoughby v. State, 792 N.E.2d 560, 562 (Ind. Ct. App. 2003), trans. denied.


              In order to prevail, the petitioner must show that the evidence is
              without conflict and leads unerringly and unmistakably to a
              conclusion opposite that reached by the post-conviction court. It
              is only where the evidence is without conflict and leads to but
              one conclusion, and the post-conviction court has reached the
              opposite conclusion, that the decision will be disturbed as being
              contrary to law.


      Id. (internal citation and quotation marks omitted). We will not reweigh

      evidence or assess the credibility of witnesses. Id.


                      B. Ineffective Assistance of Trial Counsel
[7]   Haines first asserts he received ineffective assistance of trial counsel.

      Specifically, he claims trial counsel was ineffective for failing (1) to properly

      advise him of the consequences of pleading guilty, which subsequently caused

      him to enter a guilty plea that was not knowing, intelligent, and voluntary, and

      (2) to properly advise him regarding available sentence reductions within the

      Department of Correction.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-PC-2620 | June 28, 2017   Page 5 of 12
[8]    We review claims of ineffective assistance of counsel based upon the principles

       enunciated in Strickland v. Washington, 466 U.S. 668 (1984):


               [A] claimant must demonstrate that counsel’s performance fell
               below an objective standard of reasonableness based on
               prevailing professional norms, and that the deficient performance
               resulted in prejudice. Prejudice occurs when the defendant
               demonstrates that “there is a reasonable probability that, but for
               counsel’s unprofessional errors, the result of the proceeding
               would have been different.” A reasonable probability arises
               when there is a “probability sufficient to undermine confidence in
               the outcome.”


       Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466

       U.S. at 694).


[9]    There is a “strong presumption” that counsel rendered adequate service. Myers

       v. State, 33 N.E.3d 1077, 1089 (Ind. Ct. App. 2015), trans. denied. “We afford

       counsel considerable discretion in choosing strategy and tactics, and ‘[i]solated

       mistakes, poor strategy, inexperience, and instances of bad judgment do not

       necessarily render representation ineffective.’” State v. Hollin, 970 N.E.2d 147,

       151 (Ind. 2012) (alteration in original) (quoting Timberlake v. State, 753 N.E.2d

       591, 603 (Ind. 2001)).


[10]   Moreover, in the context of a guilty plea, a petitioner must establish a

       reasonable probability that, but for counsel’s errors, he would not have pleaded

       guilty and would have instead insisted on going to trial. Scott v. State, 986

       N.E.2d 292, 296 (Ind. Ct. App. 2013). “A reasonable probability is one that is


       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-PC-2620 | June 28, 2017   Page 6 of 12
       sufficient to undermine confidence in the outcome.” Kubsch v. State, 934

       N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland, 466 U.S. at 694).


[11]   Haines first alleges his guilty plea was not knowing, intelligent, and voluntary

       because his attorneys “led him to pled [sic] guilty without either fully

       investigating or explaining all of the possible valid defenses in this case.”

       Amended Appellant’s Brief at 17-18. However, Haines offers no explanation

       for what defenses may have been available to him that his attorneys failed to

       investigate. In addition, both of Haines’ attorneys testified at the post-

       conviction evidentiary hearing that they explained his plea agreement and

       sentence to him on multiple occasions. When asked how she ensured Haines

       understood his plea of guilty and the consequences of that plea, Attorney Jones

       stated, “[b]y going over it[,] each and every paragraph in the plea agreement,

       reading it aloud. Not just having him read it silently, but reading it aloud with

       him there in my presence.” Tr., Vol. 2 at 18. Attorney Jones testified she

       believed Haines had a complete and full understanding of his guilty plea.

       Likewise, Attorney Scott-Dix testified that she discussed the plea agreement

       with Haines and was satisfied he understood the guilty plea and its

       consequences. Scott-Dix testified, “I believed him to have understood it, only

       because we went over it several times to insure [sic] that he understood it.” Id.

       at 51.


[12]   Further, at the guilty plea hearing, the trial court discussed the guilty plea with

       Haines prior to accepting it.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-PC-2620 | June 28, 2017   Page 7 of 12
        Court:           Mr. Haines, because you are a defendant in a
                         criminal case, you have significant and important
                         legal rights that are guaranteed to you. All these
                         rights are found within your plea agreement. Upon
                         your review of this plea document with your
                         attorneys, you should be aware that you have a right
                         to a speedy and public trial by a jury. . . . With the
                         plea agreement that you’re asking me to accept, you
                         will never have that trial. . . . You understand me?

        [Haines]:        Yes.

        Court:           By giving up your right to a trial by a jury, you are
                         giving up rights that you would have if we had that
                         trial. For example, you are also giving up the right
                         to require the State of Indiana to prove you guilty
                         by the standard of beyond a reasonable doubt. You
                         are giving up the right to confront and cross-
                         examine State’s witnesses at trial. You are giving
                         up the right to use the Court’s subpoena power to
                         have evidence or witnesses assist you at trial. . . .
                         Do you understand these rights that you’re giving
                         up by pleading guilty?

        [Haines]:        Yes.

        Court:           To be clear on this jury-trial issue, you have a right
                         to a trial by jury not only as to the charges that have
                         been filed, you have the right to—all the rights that
                         go along with a trial by jury, but you also have a
                         right to a trial by jury on the enhancement, which is
                         a—which is the life without parole. . . . And only if
                         they—if a jury were to find you guilty of these two
                         charges, at that point it would be the obligation of
                         the State to present further information to the jury
                         to determine whether you should be sentenced to
                         life without parole. So your trial would come in
                         two parts. You are giving up the—this two-part
                         requirement by pleading guilty today. You
                         understand me?

        [Haines]:        Yes.

Court of Appeals of Indiana | Memorandum Decision 45A03-1611-PC-2620 | June 28, 2017   Page 8 of 12
               Court:           All these rights you are giving up by asking me to
                                accept a plea agreement today. You understand
                                me?

               [Haines]:        Yes.

               Court:           Do you still want to plead guilty?

               [Haines]:        Yes.


       Guilty Plea Hearing Tr. at 15-18. Simply put, there is ample evidence in the

       record that Haines’ guilty plea was made knowingly, voluntarily, and

       intelligently. Because the record supports the post-conviction court’s

       determination that trial counsel and the trial court adequately informed Haines

       of the nature and consequences of his guilty plea, we find that Haines argument

       is simply a request to reweigh the evidence and reassess the credibility of

       witnesses, neither of which are functions of this court. Willoughby, 792 N.E.2d

       at 562.


[13]   Haines also alleges his counsel was ineffective for failing to properly advise him

       regarding available sentence reduction programs while imprisoned.

       Specifically, Haines contends counsel led him to believe he could reduce his

       sentence by up to twelve years by taking advantage of rehabilitation programs

       while in prison. After he pleaded guilty, Haines claims he discovered the

       maximum amount of credit time he may earn is four years. See Ind. Code § 35-

       50-6-3.3(i)(1) (2010). However, this argument too, is a request to reweigh

       evidence and judge witness credibility, which our standard of review does not

       permit. Willoughby, 792 N.E.2d at 562. At the post-conviction evidentiary

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       hearing, both Attorney Jones and Attorney Scott-Dix testified they never told

       Haines he could reduce his sentence by up to twelve years. They stated Haines

       requested information about available sentence reduction programs and they

       compiled the relevant information, including Indiana Code section 35-50-6-3.3,

       and reviewed it with him. Other than Haines’ own testimony, there is no

       evidence either attorney informed Haines he would be able to reduce his

       sentence by twelve years.1


[14]   In sum, Haines has not demonstrated deficient performance by his trial counsel

       and the record supports the conclusion reached by the post-conviction court.


                                          II. Double Jeopardy
[15]   Next, Haines appears to argue his convictions for murder and robbery violate

       Indiana’s constitutional prohibition against double jeopardy. Haines states the

       “victims of the robbery and the murder were the same individual and occurred

       in the same course of conduct on the same date.” Amended Appellant’s Br. at

       23. However, Haines has waived this claim by entering into a plea agreement.

       See Games v. State, 743 N.E.2d 1132, 1134-35 (Ind. 2001) (holding a defendant

       who enters a plea agreement to achieve an advantageous position must keep the

       bargain and cannot then challenge the sentence on double jeopardy grounds).




       1
        Haines also alleges his attorneys coerced him into signing a plea agreement by misleading him into
       believing he would automatically receive a sentence of life without parole if the jury found him to be guilty as
       charged. There is no evidence in the record to support this assertion. That Haines prudently listened to the
       advice of his attorneys and negotiated a term of years rather than face the risk of life imprisonment, which the
       State originally intended to seek, does not equate with coercion or misrepresentation.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-PC-2620 | June 28, 2017              Page 10 of 12
[16]   Waiver notwithstanding, Haines’ convictions do not violate the prohibition

       against double jeopardy. Article 1, Section 14 of the Indiana Constitution

       provides that “[n]o person shall be put in jeopardy twice for the same offense.”

       The standard for evaluating an alleged double jeopardy violation is well-settled:


               two or more offenses are the “same offense” in violation of
               Article I, Section 14 of the Indiana Constitution, if, with respect
               to either the statutory elements of the challenged crimes or the
               actual evidence used to convict, the essential elements of one
               challenged offense also establish the essential elements of another
               challenged offense.


       Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).


[17]   Haines appears to argue his convictions for murder and robbery violate the

       actual evidence test. To establish a violation under the actual evidence test, the

       defendant must demonstrate a reasonable possibility that the evidentiary facts

       used by the fact-finder to establish the essential elements of one offense may

       also have been used to establish the elements of a second challenged offense.

       Id. at 53.


[18]   Our supreme court has specifically determined that when there is a “reasonable

       possibility that the jury may have used evidentiary facts establishing all the

       essential elements of robbery as a Class A felony to establish also all the

       essential elements of murder,” a violation of the Indiana Double Jeopardy

       Clause results. Gross v. State, 769 N.E.2d 1136, 1139 (Ind. 2002). The court

       noted that “where a single act forms the basis of both a Class A felony robbery

       conviction and also the act element of the murder conviction, the two cannot
       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-PC-2620 | June 28, 2017   Page 11 of 12
       stand.” Id. (citing Kingery v. State, 659 N.E.2d 490, 495-96 (Ind. 1995)). In such

       cases, the appropriate remedy is to reduce the robbery conviction to a Class B

       felony, if supported by the evidence. Id. at 1139-40.


[19]   Here, Haines did not plead guilty to robbery as a Class A felony, which would

       require proof he caused serious bodily injury. Haines pleaded guilty to robbery

       as a Class B felony which requires the use of a deadly weapon. Ind. Code § 35-

       42-5-1 (1984). Haines stipulated to the fact he used a gun during the

       commission of his crimes. Therefore, independent facts support his convictions

       for robbery as a Class B felony and murder, and his convictions do not violate

       the prohibition against double jeopardy. See Gross, 769 N.E.2d at 1139-40.



                                               Conclusion
[20]   The post-conviction court did not err in concluding Haines did not receive

       ineffective assistance of counsel and his convictions do not violate the

       prohibition against double jeopardy. We therefore affirm the judgment of the

       post-conviction court.


[21]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-PC-2620 | June 28, 2017   Page 12 of 12
