MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             Dec 23 2015, 9:32 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Thomas J. Gaunt                                          Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

John D. Quarles,                                         December 23, 2015
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A02-1503-PC-152
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Steven R.
Appellee-Respondent.                                     Eichholtz, Judge
                                                         The Honorable Peggy Ryan Hart,
                                                         Master Commissioner
                                                         Trial Court Cause No.
                                                         49G23-0803-PC-58309



Brown, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015   Page 1 of 23
[1]   John D. Quarles appeals the denial of his petition for post-conviction relief.

      Quarles raises one issue which we revise and restate as whether the post-

      conviction court erred in denying his petition for relief. We affirm.


                                      Facts and Procedural History

[2]   On March 13, 2008, the State charged Quarles with Count I, dealing in cocaine

      as a class A felony; Count II, possession of cocaine and a firearm as a class C

      felony; Count III, possession of cocaine as a class C felony; Count IV,

      possession of marijuana as a class A misdemeanor; and Count V, resisting law

      enforcement as a class A misdemeanor.


[3]   The court scheduled a jury trial for September 1, 2009. On that day Quarles

      engaged in a discussion with the court regarding the charging information and

      stated: “On a plea bargain, you was – was going to give me for the thirty (30)

      years, it don’t say that, neither, it just says Count I Dealing, Class A Felony.”

      Petitioner’s Exhibit 2 at 5. The following exchange occurred:

              THE COURT: Okay. All right. Well, you understand, we’re
              set for jury trial today, okay? And we have a lot of people, I
              believe, downstairs ready and willing to come up here. People of
              your community, sir, okay? And there’s going to be twelve (12)
              people chosen by the State and your attorney to sit in that box
              where you’re sitting in (sic) right now and listen to the evidence
              and determine whether you’re guilty or not guilty, okay? That’s
              all they’re going to do, and it has to be a unanimous verdict,
              okay? And then if the Court accepts the verdict, if it’s a
              unanimous verdict, I will - - - I will accept it, and whatever that
              is, then I’m going to enter judgment of conviction and then we
              come back for sentencing, okay? So the lead classification of


      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015   Page 2 of 23
        Count I, I believe the classification of Count I is a Class A
        Felony, correct?


        [Prosecutor]: Yes, Your Honor.


        THE COURT: Okay. So that’s worse case scenario, is Count I,
        A Felony. Do you understand that?


        [Quarles]: Yes, ma’am.


        THE COURT: Okay. And, so I understand that the State –
        there was an offer and because there’s five (5) counts and
        technically I can run some of them consecutive, so worse case
        scenario I believe he’s looking at fifty (50) plus years?


        [Defense Counsel]: I have advised him that there’s a pretty good
        double jeopardy argument that probably –


        THE COURT: With regard to Count –


        [Defense Counsel]: – probably would all be concurrent by law
        and merge but –


        THE COURT: Well, what about – what about the marijuana
        and the resist?


        [Defense Counsel]: That’s – I (inaudible) –


        [Prosecutor]: Fifty-two (52), fifty-two (52) is what’s at stake.


        THE COURT: Okay. I think – I think – I think that would be
        probably be safe to advise him, his worse case scenario would be

Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015   Page 3 of 23
        fifty-two (52) because I think he could probably have – you’re
        right I think the –


        [Defense Counsel]: Most would merge.


        THE COURT: – the possession of cocaine could merge, and the
        gun and the cocaine, –


        [Defense Counsel]: Can’t do both, right.


        THE COURT: – because that’s a count that could merge, so I
        think worse case scenario is if you go to trial and you’re
        convicted of all counts is that you’d be facing fifty-two (52) years.
        That would be worse case scenario. Do you understand that?


        [Quarles]: Yes, ma’am.


        THE COURT: Okay, and I know there was some negotiations,
        right? Were you thinking of trying to resolve this short of a jury
        trial?


        [Quarles]: No, ma’am. No, ma’am. I wanted to resolve it with
        the A gone, I would resolve it because I’m not a dealer.


        THE COURT: Okay.


        [Quarles]: I’m a user.


        THE COURT: Okay. So you were looking for, I don’t know, a
        B? Is that it? Okay.




Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015   Page 4 of 23
              [Defense Counsel]: I suppose if the agreement was offered, he
              would seriously consider it, but, you know, I don’t think that’s
              going to happen.


              [Prosecutor]: Right.


      Id. at 6-9.


[4]   After further discussion, Quarles indicated that he was intending to smoke the

      cocaine and when asked by the court if he was intending to smoke all of it,

      Quarles stated: “Partying and smoking with it.” Id. at 10. Quarles’s counsel

      told Quarles that anything he said could not be used against him today because

      they were talking about possible negotiations. After further discussion, the

      court stated: “So, all I say to you is that – and I think [defense counsel] would

      agree with me, partying with other people could implicate [the] legal definition

      [of delivery], okay? So where – where are we at? Would you still go – if he

      plead guilty to Count I, would you dismiss everything else?” Id. at 11-12. The

      prosecutor indicated that the State would dismiss the other counts except for the

      charge of resisting law enforcement which it would agree to run concurrent

      with Count I. Id. at 12.


[5]   The following exchange then occurred:


              [Defense Counsel]: And I know the Court is oftentimes very
              appreciative and tends to mitigate if people take responsibility,
              even if they have criminal histories, but – and I’ve explained that
              to you, right John? The Judge may want to back me up, but –



      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015   Page 5 of 23
              THE COURT: Oh, absolutely. You’re absolutely correct
              [defense counsel]. You’ve been – you’ve been with me before
              many times. Many, many, many a time, so absolutely, sir. So
              what he’s saying to you is that if you do plead guilty, I find that
              as a mitigating circumstance that you’ve taken responsibility.


      Id. After further discussion, the court stated: “[U]ltimately the decision is

      yours, so, you know, you can either admit your guilt and we can go open, all

      right, or we can go to a jury trial, and you – I’m – I’m fully confident that you

      are aware of the circumstances and the consequences that that entails, right?”

      Id. at 14. Quarles responded affirmatively and asked to speak with his attorney.

      The court took a recess, and then defense counsel stated that Quarles was

      interested in pleading blind to the court on a class A felony if the State agreed to

      dismiss all other charges except the charge of resisting law enforcement as a

      class A misdemeanor with the agreement that any sentence would run

      concurrent with Count I. When questioned by the court, Quarles indicated that

      he wished to plead guilty.


[6]   After another recess for the prosecutor to complete some paperwork, Quarles

      indicated that he intended to plead guilty to Counts I and V. The court

      indicated that the sentence on a class A felony “is anywhere from twenty (20) to

      fifty (50) years,” and Quarles indicated that he understood. Id. at 19. The court

      informed Quarles that he was giving up his rights to a public and speedy trial by

      jury, to cross-examine and confront witnesses, to remain silent, to require the

      State to prove his guilt beyond a reasonable doubt, and to appeal his conviction,

      and Quarles indicated that he understood.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015   Page 6 of 23
[7]   The prosecutor then stated that on or about March 12, 2008, Quarles did

      knowingly possess with the intent to deliver cocaine in an amount greater than

      three (3) grams and he either intended to give or sell the cocaine to another

      person. He also stated that Quarles knowingly obstructed and interfered with a

      law enforcement officer while the officer was executing his official duties.

      Quarles indicated that the prosecutor’s statements were true.


[8]   The following exchange then occurred:


              THE COURT: . . . Sir, did anybody threaten you or coerce you
              or force you plead [sic] guilty?


              [Quarles]: No, ma’am.


              THE COURT: Are you doing it knowingly, intelligently, and of
              your own free will?


              [Quarles]: Yes, ma’am.


              THE COURT: And are you doing it of clear and sound mind?


              [Quarles]: Yes, ma’am.


                                                   *****


              THE COURT: And you think by pleading guilty, which you just
              did, to Dealing in Cocaine with the Intent to Deliver and
              Resisting Law Enforcement is in your best interest?


              [Quarles]: Yes, ma’am.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015   Page 7 of 23
       Id. at 31-32. Quarles also indicated that he was satisfied with defense counsel’s

       performance, his advice, and how he answered his questions. The court then

       accepted Quarles’s guilty plea. The State moved to dismiss Counts II, III, and

       IV, and the court granted the motion.


[9]    On October 5, 2009, the court found Quarles’s guilty plea and acceptance of

       responsibility as mitigators and his criminal history and violation of pre-trial

       conditions as aggravators. The court found that the mitigators outweighed the

       aggravators and sentenced Quarles to twenty-five years for Count I, dealing in

       cocaine as a class A felony, with twenty-three years executed at the Department

       of Correction and two years executed at the Marion County Community

       Corrections, and one year for Count V, resisting law enforcement as a class A

       misdemeanor. The court ordered that the sentences run concurrent with each

       other.


[10]   Quarles sought a belated appeal, and this court dismissed Quarles’s direct

       appeal with prejudice in 2011.


[11]   On December 19, 2013, Quarles filed a pro se petition for post-conviction relief.

       In part, Quarles alleged that the trial court induced the plea by an improper

       threat by advising him that whether the jury found him guilty or innocent, the

       court would enter a judgment of conviction and mentioned that he was facing a

       sentence of fifty-two years and that he would probably be sentenced to the




       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015   Page 8 of 23
       maximum sentence. He also alleged that he received ineffective assistance of

       counsel.1


[12]   On October 3, 2014, the post-conviction court held a hearing. At the hearing,

       Quarles testified that he went to “about the eleventh grade” in school, that he

       was in special education in school, and that he was expecting a jury trial on

       September 1, 2009. Transcript at 13. When asked what happened instead of a

       jury trial, Quarles stated: “Pleaded guilty, mostly plead like – a bunch of talking

       was going on, and if I hadn’t of did this, if hadn’t uh plead guilty – I had

       INDISCERNIBLE jury trial, I was going to get found guilty anyway, so I took

       a plea.” Id. He also testified that “there wasn’t no point of going, I was going

       to get found guilty, get fifty years anyway.” Id. at 14. He testified that he heard

       the trial court say “fifty-two years” a few times. Id. He also testified that he did

       not think he was guilty and that was why he wanted a trial.


[13]   Quarles’s trial counsel testified that he remembered September 1, 2009, but did

       not recognize the exchange in the transcript in which the trial court told Quarles

       that “if the Court accepts the verdict, if it’s a unanimous verdict, I will - - - I will

       accept it, and whatever that is, then I’m going to enter judgment of conviction .

       . . .” Petitioner’s Exhibit 2 at 6. When asked if there was anything “alarming




       1
         At the October 3, 2014 post-conviction hearing, Quarles’s post-conviction counsel stated that he filed an
       amendment to the petition alleging that trial counsel was ineffective for failing to object to the trial court’s
       statements at the guilty plea hearing. The court indicated that it was filed September 16th. Quarles’s
       appendix contains only the petition filed on December 19, 2013.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015                Page 9 of 23
       in terms of something you might of [sic] objected to if you had heard it,”

       Quarles’s trial counsel answered affirmatively and stated:


               Well obviously, uh whether it’s uh, someone misspeaking, or
               misinterpreting the fact that a ju – uh the bench would say, that
               they’re going to enter judgment of conviction no matter what the
               verdict is. I mean that’s obviously, um not accurate, but I’m
               guessing, uh someone either misspoke or miss – misheard, there’s
               no way a judicial officer would say something like that, and
               mean it, if that’s in fact what was said.


       Transcript at 21. He testified that he did not know why he might not have

       objected. He also agreed that it might be fair to say that he probably did not

       hear it or did not catch it. On cross-examination, trial counsel testified that he

       was in the trial judge’s courtroom numerous times per week and observed the

       trial judge when she was dealing with cases other than those on which he was

       working. When asked whether he ever knew the judge to threaten a defendant

       from the bench in such a way to suggest that she would find a defendant guilty

       even if a jury found a defendant innocent, trial counsel answered: “Absolutely

       not.” Id. at 24.


[14]   On redirect examination of trial counsel, the following exchange occurred:


               Q Your testimony if I recall, is that you believe in reading the
               transcript that there was an error, a misstatement, or mistaken
               statement by the court; correct?


               A Either that, or the transcript was done wrong. I can’t imagine
               a judge saying something like that, without it being a mistake, if
               in fact it was said.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015   Page 10 of 23
               Q Uh, see you’re inclined to think it’s more an issue of whether
               there was a mistake in the transcript?


               A No, I didn’t say that, that’s one of the options.


       Id. at 25. When asked what he heard, trial counsel answered: “I

       INDISCERNIBLE back at the plea hearing I never heard [the trial judge]

       threaten that way, no.” Id. at 26.


[15]   On December 12, 2014, the post-conviction court denied Quarles’s petition for

       relief. The order states in part:


                            INEFFECTIVE ASSISTANCE OF COUNSEL


                                                    *****


               Regarding the threat of the trial court judge to convict [Quarles]
               after a trial even if a jury acquitted him, [Quarles’s trial counsel]
               said that he did not hear the judge say it, nor had he ever on
               previous occasions heard the judge threaten a criminal defendant
               in a similar manner and, further, he would have been surprised to
               hear anyone suggest that she would do so.


                                                    *****


               Regarding the trial court’s alleged threat against [Quarles]
               (discussed in more detail below), the Court finds that [trial
               counsel’s] failure to hear the judge’s comment was an isolated
               mistake and does not rise to the level of ineffectiveness.


               [Quarles] has failed to meet his burden of proof in showing that
               [trial counsel’s] representation fell below an objective standard of

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015   Page 11 of 23
        reasonableness and that his error was so serious that it resulted in
        a denial of the right to counsel guaranteed under the Sixth
        Amendment of the United States Constitution. The Petition is
        denied upon the first prong of Strickland[v. Washington, 466 U.S.
        668, 104 S. Ct. 2052 (1984), reh’g denied], that of ineffectiveness.
        [Quarles] has not shown that he received a more severe sentence
        from the trial court judge as the result of anything [trial counsel]
        said at the guilty plea hearing, nor has he convinced the Court
        that he would have elected to go to trial (discussed further below)
        if [trial counsel] had questioned the trial court’s language
        regarding the alleged threat, and so the Petition is denied upon
        the second prong of Strickland, that of prejudice.


                                   INVOLUNTARY PLEA


        [Quarles] claims that his plea was involuntary because:


                The Court induced the plea by an improper threat, to wit:
                the Court advised [Quarles] that whether the Jury Trial
                found him guilty or innocent, the Court would enter a
                judgment of conviction . . .


                                                   *****


        No one present in the courtroom commented on the judge’s slip
        of the tongue, for that is what it surely must have been. [Quarles]
        did not say anything. Nor did [his trial counsel]. Nor did the
        deputy prosecutor who immediately answered the judge’s
        question about the classification of Count I.


        At the evidentiary hearing, [Quarles] testified that he had been
        planning to go forward with trial until the moment the judge said
        she was going to find him guilty no matter what the jury found.
        However, the Court finds little evidence in the transcript of the

Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015   Page 12 of 23
        guilty plea hearing to back up this part of his claim. On page 8 of
        the guilty plea hearing transcript, the following colloquy took
        place:


                THE COURT: Okay, and I know there was (sic) some
                negotiations, right? Were you thinking of trying to resolve
                this short of a jury trial?


                [Quarles]: No, ma’am. No, ma’am. I wanted to resolve it
                with the A gone, I would resolve it because I’m not a
                dealer.


        From this Court [sic] infers that there had been negotiations for a
        guilty plea offer that might have reduced the A felony count to a
        B felony, so [Quarles’s] desire to go to trial was not as strong as
        he now makes it out to have been. [Quarles’s] response to the
        Court’s question with, “No, Ma’am. No, Ma’am.” could be
        taken literally to mean that he did not wish to resolve the case
        short of a trial, but it could also be taken to mean generally that
        he did not wish to have a trial if he could get a deal that he liked.
        However, even if the Court were inclined to give greater weight
        to a literal interpretation – that [Quarles] did not want to resolve
        the case short of a trial – the Court notes that proceedings were
        interrupted twice, to allow [Quarles] to confer with [trial counsel]
        over further negotiations, and then to allow the State some time
        to draw up a new plea document. During both of these breaks,
        there was ample opportunity for [Quarles] to speak to [trial
        counsel] about the judge’s apparent comment regarding a
        conviction following a jury acquittal. Both times, when the trial
        court reconvened there was considerable discussion about the
        ongoing negotiations with the State and explanations from the
        trial court judge regarding the possible range of prison sentences,
        but there was not one word from anyone about the possibility of
        a judge-nullification of a jury acquittal at trial.



Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015   Page 13 of 23
               From a consideration of the entire transcript of the guilty plea
               hearing, the Court finds that in all probability [Quarles]
               completely missed the judge’s misstatement, just as the
               prosecutor and [trial counsel] had, and it is only now, after
               having an opportunity to review the printed transcript of the
               guilty plea hearing, does [Quarles] make his claim that he was on
               the cusp of going to trial until the moment that the judge told him
               that his trial would be a sham. . . .


               The Court now finds that [Quarles] has failed to meet his burden
               of proof in showing that, more likely than not, he heard the
               judge’s comment about a conviction notwithstanding a jury
               acquittal. [Quarles] has also failed to show that he had been
               determined to go to trial until the judge made her comment,
               given the evidence that he had been engaged in negotiating a plea
               agreement prior to the guilty plea hearing. His claim that he was
               prejudiced by the judge’s comment (if he had heard it) is
               unconvincing.


               The Petition is denied as to his claim of involuntary plea.


       Appellant’s Appendix at 19, 22-26. On January 12, 2015, Quarles filed a

       motion to correct error. On February 11, 2015, the court denied the motion.


                                                   Discussion

[16]   The purpose of a petition for post-conviction relief is to raise issues unknown or

       unavailable to a defendant at the time of the original trial and appeal. Reed v.

       State, 856 N.E.2d 1189, 1194 (Ind. 2006). A post-conviction petition is not a

       substitute for an appeal. Id. Further, post-conviction proceedings do not afford

       a petitioner a “super-appeal.” Id. The post-conviction rules contemplate a



       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015   Page 14 of 23
       narrow remedy for subsequent collateral challenges to convictions. Id. If an

       issue was known and available but not raised on appeal, it is waived. Id.


[17]   We also note the general standard under which we review a post-conviction

       court’s denial of a petition for post-conviction relief. The petitioner in a post-

       conviction proceeding bears the burden of establishing grounds for relief by a

       preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004);

       Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-

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

       negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse

       the judgment unless the evidence as a whole unerringly and unmistakably leads

       to a conclusion opposite that reached by the post-conviction court. Id. Further,

       the post-conviction court in this case entered findings of fact and conclusions

       thereon in accordance with Indiana Post-Conviction Rule 1(6). “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.” Id. In this review, we accept findings of fact unless

       clearly erroneous, but we accord no deference to conclusions of law. Id. The

       post-conviction court is the sole judge of the weight of the evidence and the

       credibility of witnesses. Id.


[18]   Quarles argues that fundamental error occurred in the comments of the trial

       court inducing him to waive his jury trial and plead guilty. In the argument

       section of his brief, he does not specifically point to any of the trial court’s



       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015   Page 15 of 23
       statements. However, elsewhere in his brief, he focuses on the trial court’s

       following statement:


               And there’s going to be twelve (12) people chosen by the State
               and your attorney to sit in that box where you’re sitting in (sic)
               right now and listen to the evidence and determine whether
               you’re guilty or not guilty, okay? That’s all they’re going to do,
               and it has to be a unanimous verdict, okay? And then if the
               Court accepts the verdict, if it’s a unanimous verdict, I will - - - I
               will accept it, and whatever that is, then I’m going to enter judgment of
               conviction and then we come back for sentencing, okay?


       Petitioner’s Exhibit 2 at 6 (emphasis added). He argues that the trial court

       “participated in an over-involved restaging of plea negotiations on the record,

       and focused entirely seemingly on the maximum sentence that could be given

       by the Court . . . .” Appellant’s Brief at 11. He also argues that his trial counsel

       was ineffective in failing to hear the comments of the court, object to the court’s

       comments, and advise him accordingly, and in allowing the court to overreach

       in participating in the plea negotiations.


[19]   The State contends that Quarles has waived his claims on appeal because he

       fails to make a single cogent argument that is supported by authority or

       citations to the record, and that, waiver notwithstanding, his freestanding claim

       of fundamental error is not cognizable in post-conviction proceedings. The

       State argues that the post-conviction court properly addressed his claim that his




       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015   Page 16 of 23
       plea was not voluntary,2 concluding that the plea was voluntarily given. It

       asserts that no one present in the courtroom commented on the trial court’s

       misstatement, it can be inferred that no one heard the misstatement, Quarles

       never stated that he heard or understood the trial court’s misstatement, and he

       failed to show that the statement induced him to plead guilty. It also maintains

       that Quarles’s trial counsel was not ineffective.


[20]   To the extent that Quarles fails to cite to the record or develop a cogent

       argument, including his argument that the trial court participated in an “over-

       involved restaging of plea negotiations on the record,” Appellant’s Brief at 11,

       we conclude that such arguments are waived. See Cooper v. State, 854 N.E.2d

       831, 834 n.1 (Ind. 2006) (holding that the defendant’s contention was waived

       because it was “supported neither by cogent argument nor citation to

       authority”); Shane v. State, 716 N.E.2d 391, 398 n.3 (Ind. 1999) (holding that the

       defendant waived argument on appeal by failing to develop a cogent argument);

       Smith v. State, 822 N.E.2d 193, 202-203 (Ind. Ct. App. 2005) (“Generally, a

       party waives any issue raised on appeal where the party fails to develop a

       cogent argument or provide adequate citation to authority and portions of the

       record.”), trans. denied. To the extent that Quarles’s brief cites to the record




       2
        The State notes that “[r]ather than contending that fundamental error occurred, in his petition for post-
       conviction relief, [Quarles] argued that his plea was not voluntary, and the trial court properly interpreted
       and addressed the claim as it was presented.” Appellee’s Brief at 12.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015            Page 17 of 23
       elsewhere or develops a cogent argument, we will attempt to address his

       arguments.


[21]   With respect to the voluntariness of his guilty plea, the Indiana Supreme Court

       has held that a plea entered after the trial judge has reviewed the various rights

       which a defendant is waiving and made the inquiries called for by statute is

       unlikely to be found wanting in a collateral attack. State v. Moore, 678 N.E.2d

       1258, 1265 (Ind. 1997), reh’g denied, cert. denied, 523 U.S. 1079 (1998).

       However, defendants who can show that they were coerced or misled into

       pleading guilty by the judge, prosecutor or defense counsel will present

       colorable claims for relief. Id. at 1266. In assessing the voluntariness of the

       plea, we review all the evidence before the court which heard his post-

       conviction petition, including testimony given at the post-conviction hearing,

       the transcript of the petitioner’s original sentencing, and any plea agreements or

       other exhibits which are a part of the record. Id. In Moore, the Court held that

       “[v]oluntariness is also distinct from ineffective assistance of counsel, despite

       some references in our cases to pleas as involuntary” and that voluntariness

       “focuses on whether the defendant knowingly and freely entered the plea, in

       contrast to ineffective assistance, which turns on the performance of counsel

       and resulting prejudice.” Id.


[22]   As for Quarles’s ineffective assistance claim, to prevail on a claim of ineffective

       assistance of counsel a petitioner must demonstrate both that his counsel’s

       performance was deficient and that the petitioner was prejudiced by the

       deficient performance. French v. State, 778 N.E.2d 816, 824 (Ind. 2002) (citing

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015   Page 18 of 23
       Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), reh’g denied). A

       counsel’s performance is deficient if it falls below an objective standard of

       reasonableness based on prevailing professional norms. Id. To meet the

       appropriate test for prejudice, the petitioner must show that there is a

       reasonable probability that, but for counsel’s unprofessional errors, the result of

       the proceeding would have been different. Id. A reasonable probability is a

       probability sufficient to undermine confidence in the outcome. Perez v. State,

       748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong will cause the

       claim to fail. French, 778 N.E.2d at 824. Most ineffective assistance of counsel

       claims can be resolved by a prejudice inquiry alone. Id.


[23]   When considering a claim of ineffective assistance of counsel, a “strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment.”

       Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance

       is presumed effective, and a defendant must offer strong and convincing

       evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73

       (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will

       not support a claim of ineffective assistance of counsel. Clark v. State, 668

       N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.

       Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second

       guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly

       speculate as to what may or may not have been an advantageous trial strategy

       as counsel should be given deference in choosing a trial strategy which, at the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015   Page 19 of 23
       time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d

       40, 42 (Ind. 1998).


[24]   The Indiana Supreme Court categorized two main types of ineffective

       assistance of counsel cases in Segura v. State, 749 N.E.2d 496 (Ind. 2001). The

       first category relates to “an unutilized defense or failure to mitigate a penalty.”

       Willoughby v. State, 792 N.E.2d 560, 563 (Ind. Ct. App. 2003), trans. denied. The

       second relates to “an improper advisement of penal consequences,” and this

       category has two subcategories: (1) “claims of intimidation by exaggerated

       penalty or enticement by an understated maximum exposure;” or (2) “claims of

       incorrect advice as to the law.” Id. With respect to this category, the Court in

       Segura concluded:


               [I]n order to state a claim for postconviction relief a petitioner
               may not simply allege that a plea would not have been entered.
               Nor is the petitioner’s conclusory testimony to that effect
               sufficient to prove prejudice. To state a claim of prejudice from
               counsel’s omission or misdescription of penal consequences that
               attaches to both a plea and a conviction at trial, the petitioner
               must allege, in Hill’s terms, “special circumstances,”3 or, as others
               have put it, “objective facts”4 supporting the conclusion that the
               decision to plead was driven by the erroneous advice.




               3
                   Hill [v. Lockhart, 474 U.S. 52, 60, 106 S. Ct. 366 (1985)].
               4
                 McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir.1996); State v. Donald, 198 Ariz. 406,
               10 P.3d 1193, 1201 (Ct. App. 2000)[, review denied, cert. denied, 534 U.S. 825, 122 S. Ct. 63
               (2001)].

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015            Page 20 of 23
               We believe a showing of prejudice from incorrect advice as to the
               penal consequences is to be judged by an objective standard, i.e.,
               there must be a showing of facts that support a reasonable
               probability that the hypothetical reasonable defendant would
               have elected to go to trial if properly advised. Nevertheless, . . . a
               petitioner may be entitled to relief if there is an objectively
               credible factual and legal basis from which it may be concluded
               that “there is a reasonable probability that, but for counsel’s
               errors, he would not have pleaded guilty and would have insisted
               on going to trial.” Hill[ v. Lockhart, 474 U.S. 52,] 59, 106 S. Ct.
               366 [(1985)].


       Segura, 749 N.E.2d at 507. The Court also held:


               Whether viewed as ineffective assistance of counsel or an
               involuntary plea, the postconviction court must resolve the factual
               issue of the materiality of the bad advice in the decision to plead,
               and postconviction relief may be granted if the plea can be shown
               to have been influenced by counsel’s error. However, if the
               postconviction court finds that the petitioner would have pleaded
               guilty even if competently advised as to the penal consequences,
               the error in advice is immaterial to the decision to plead and there
               is no prejudice.



       Id. at 504-505.


[25]   We conclude that the trial court’s statement that “if the Court accepts the

       verdict, if it’s a unanimous verdict, I will - - - I will accept it, and whatever that

       is, then I’m going to enter judgment of conviction” was improper. Petitioner’s

       Exhibit 2 at 6. Nonetheless, we cannot say that reversal is warranted. With

       respect to this statement, trial counsel testified that it might be fair to say that he

       probably did not hear it or did not catch it. Trial counsel also stated that one of


       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015   Page 21 of 23
       the options was that the transcript was wrong and that he never heard the trial

       court judge threaten Quarles in the way suggested by post-conviction counsel.


[26]   Further, at the guilty plea hearing, the trial court later stated: “[U]ltimately the

       decision is yours, so, you know, you can either admit your guilt and we can go

       open, all right, or we can go to a jury trial . . . .” Id. at 14. Later during that

       hearing and upon questioning by the court, Quarles indicated that no one

       threatened him or coerced him to plead guilty and that he was doing so

       knowingly, intelligently, and of his own free will.


[27]   The trial court took two recesses during the September 1, 2009 hearing, and

       Quarles did not set forth any evidence regarding what he discussed with trial

       counsel during those recesses. Quarles did not testify or allege that he

       expressed any concern to his trial counsel regarding the trial court’s advisement.

       He does not argue that any statements by his trial counsel were erroneous or

       material to his decision to plead guilty. At the September 1, 2009 hearing,

       Quarles indicated that he was satisfied with trial counsel’s performance, his

       advice, and how he answered his questions.


[28]   To the extent that Quarles asserts that the trial court improperly emphasized the

       maximum sentence, we observe that the court informed him that the “worse [sic]

       case scenario is if you go to trial and you’re convicted of all counts is that you’d

       be facing fifty-two (52) years. That would be worse case [sic] scenario.” Id. at 8

       (emphases added). The court later indicated that the sentence on a class A




       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015   Page 22 of 23
       felony “is anywhere from twenty (20) to fifty (50) years,” and Quarles indicated

       that he understood. Id. at 19.


[29]   Based upon the record, we cannot say that Quarles demonstrated that he was

       coerced or misled into pleading guilty by the trial court, that any statement or

       failure on the part of his trial counsel was material to Quarles’s decision to

       plead guilty, or that the evidence as a whole unerringly and unmistakably leads

       to a conclusion opposite that reached by the post-conviction court.


                                                   Conclusion

[30]   For the foregoing reasons, we affirm the post-conviction court’s denial of

       Quarles’s petition for post-conviction relief.


[31]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-PC-152 | December 23, 2015   Page 23 of 23
