 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of                                            Jun 30 2014, 10:09 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.




ATTORNEYS FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS                                   GREGORY F. ZOELLER
Public Defender of Indiana                         Attorney General of Indiana

DEIDRE R. ELTZROTH                                 MICHAEL GENE WORDEN
Assistant Chief Deputy Public Defender             Deputy Attorney General
                                                   Indianapolis, Indiana
EMILY J. WITNEY
Deputy Public Defender
Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ANISSA L. TYLER,                                   )
                                                   )
       Appellant-Petioner,                         )
                                                   )
           vs.                                     )      No. 48A04-1309-PC-428
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )

                     APPEAL FROM THE MADISON CIRCUIT COURT
                          The Honorable Thomas Newman, Judge
                            Cause No. 48D03-1002-PC-00039
                                          June 30, 2014


                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       Anissa Tyler (“Tyler”) was convicted in Madison Circuit Court of murder and

Class A felony aiding, inducing, or causing robbery and sentenced to an aggregate term

of sixty years in the Department of Correction. After her convictions and sentence were

upheld on direct appeal, Tyler filed a petition for post-conviction relief, which the post-

conviction court denied. Tyler presents three issues in her appeal of the post-conviction

court’s denial of her petition for post-conviction relief, but we address a single dispositive

issue, namely, whether Tyler was denied the effective assistance of trial counsel because

counsel’s performance was impaired by a conflict of interest.

       We reverse and remand.

                               Facts and Procedural History

       On April 13, 2006, the body of Charles Robinette (“Robinette”) was found inside

his apartment in Anderson, Indiana. He had apparently been dead for a few days at the

time of the discovery. The cause of death was determined to be blunt force trauma to the

head. Police investigating the scene interviewed Robinette’s neighbors and, based on

those conversations, began looking for a white male, approximately forty to fifty years

old, with dark, frizzy hair.

       While leaving Robinette’s apartment complex after investigating the crime scene,

a police officer pulled behind a vehicle with two people inside and noticed that the driver

of the car, later identified as Jeff Miller (“Miller”) matched the description provided by

Robinette’s neighbors. After running the car’s license plate and learning that the car was

registered to Tracy Cripe, Miller’s sister and a person of interest in the investigation of

Robinette’s death, officers pulled over the vehicle and arrested Miller. Miller then took

                                              2
the officers to a local motel at which Tyler, who had also been identified as a person of

interest in Robinette’s death, was staying at the time. Officers brought both Miller and

Tyler to the Anderson Police Department for questioning. During a videotaped interview,

Tyler denied any direct involvement with Robinette’s death. After the questioning, the

officers arrested Tyler.

       On April 19, 2006, the State charged Tyler with Count I, Murder and Count II,

Class A felony aiding, inducing, or causing robbery. On April 26, 2006, one week after

the State filed its charges against Tyler, Ms. Gregory Hiawatha Deloris Mann (“Mann”)

was arrested for possession of cocaine and possession of drug paraphernalia. Mann was

placed in the same cellblock as Tyler. Attorney Blanchard Shearer (“Shearer”) was

appointed to represent Mann. On May 10, 2006, Mann filed a pro se request for bond

reduction, which was refused by the trial court. Then, in mid-May 2006, approximately

one week after the trial court denied Mann’s request for bond reduction, Mann

approached police, claiming that Tyler had confessed to Robinette’s murder to her.

       A videotape of a May 25, 2006 meeting between Mann and the detective who was

working on Tyler’s case portrays the detective advising Mann that the prosecutor would

be notified of Mann’s cooperation and that her bond would be reduced or she would be

released from jail. Chronological case summaries (“CCSs”) for the two drug-related

criminal prosecutions pending against Mann at the time she became an informant indicate

that on June 1, 2006, Mann’s bond was reduced and, approximately one week after that,

Mann was released. On October 16, 2006, the State dismissed one of Mann’s two

pending criminal cases. Some three months later, on January 12, 2007, Mann’s attorney,

                                           3
Shearer, was appointed to represent Tyler. Five days after his appointment to represent

Tyler, Shearer was removed as Mann’s counsel.

      On February 2, 2007, the State moved to amend the date of the offenses listed on

Tyler’s charging information. Over Tyler’s objection, the trial court granted the State’s

motion. Tyler’s jury trial began approximately two months later, on April 24, 2007. At

trial, Anderson Police Detective Larry Crenshaw (“Detective Crenshaw”) testified that he

conducted two videotaped interviews of Tyler.        He stated that, during the second

interview, he removed Tyler from the interrogation room into the adjacent hallway and

continued to question her. He testified that while he and Tyler were in the hallway, she

confessed that Robinette’s death was the result of a botched robbery for which she was a

“lookout.” Tr. p. 422. Crenshaw stated that, following this confession, he took Tyler to a

second room to record her confession, but there, Tyler again denied any participation in

Robinette’s death.

      Mann also testified for the State. When Shearer learned that Mann, his former

client, was testifying as an informant for the State, he asked his co-counsel, Jason

Childers (“Childers”), to conduct the cross-examination of Mann.           During direct

examination, Mann stated that Tyler told her that Tyler and another woman, Jana Brandle,

were with Miller at Robinette’s apartment smoking cocaine on the night of Robinette’s

death. Mann testified that Tyler told her that Miller killed Robinette after the group ran

out of cocaine and Robinette refused to give Miller money to buy more drugs.

      During Childers’s cross-examination of Mann, the following exchange occurred:



                                            4
      Childers: Ms. Mann again, when you made these statements to [the police],
      [it] was at [your] request, correct?

      Mann: Yes sir it was.

      Childers: And it’s your testimony today that you did not receive any
      favorable treatment…

      Mann: No sir I didn’t.

      Childers: So you volunteered those comments out of your own part?

      Mann: I have a family member that was murdered. My uncle was
      murdered. And he was a good man and there was no real justice, we’ve
      never had closure.

      Childers: No further questions.

      Later, during an argument outside jury’s presence, the following exchange

occurred between Shearer and the trial court:

      Shearer: Ah, Ms. Mann testified that she received no favorable treatment
      from the State of Indiana but ah, the docket sheets show that ah, in one case
      she had a bond reduced from Ten Thousand ($10,000) Two Thousand
      (2000) [sic] to O.R. and the other case was dismissed. All in June about the
      time of year she was working with the ah, as an informant in the jail for the
      State. My problem is and I’ve disclosed this to the Court and I’ve disclosed
      this to you, that ah, I was Gregory Hiawitha Mann’s public defender down
      in County Court and I was concerned about a conflict early on in the case.
      That’s why I had Jason Childers [cross-examine] her rather than me. But
      ah, I personally know what the deal was downstairs and why her bond was
      reduced to O.R. Ah, I can’t testify to that and I don’t know if that creates
      such a conflict for me that I should….”

      Trial court: Well, does the prosecutor who was on the other side of the case
      know?

      Shearer: Yes, but the prosecutor on the other side of the case is no longer
      here.

                                          ***


                                            5
        Trial court: Well, did Mr. Childers cross-examine her on what’s reflected in
        the docket sheet?

        Childers: I didn’t, Judge. I think my question to her ah, was…

        Prosecutor: Was did [sic] you come forward and she said because I had an
        Uncle killed and the murder wasn’t solved. That was the question and the
        answer.

        Childers: Yeah, and I think I asked, you know, how many other times have
        you been an informant, I think is the [g]ist of it. I believe her answer was
        no.

        Trial court: You had this information at the time you cross-examined her?

        Prosecutor: And that’s my problem with it.

        Trial court: Didn’t you?

        Childers: Yeah.

        Trial court: Well, why didn’t you [cross-examine] her? Mr. Shearer knew
        about it.

        Childers: I know, well I guess I accomplished what I wanted to accomplish
        with her.

Tr. pp. 1202-03.

        During this conversation, Shearer attempted to admit the CCSs from Mann’s two

criminal cases. The State objected1 and the trial court sustained the objection.

        During closing arguments, the State proclaimed:

        And remember, [Mann] came to us. We didn’t go seeking her. She sent
        word to law enforcement that she knew something about this. She didn’t

1
  The State argued, “[The CCSs don’t] say anything about any deals or any leniencies. She testified that
she was O.R.’d. She testified that she, she said she beat the other case and it was dismissed or whatever.
And again, they didn’t ask her and the problem is that they’re in putting these Two (2) . . . docket sheets
in and then their argument is, well these show that she had a bias and then when they see that Mr. Shearer
was her attorney, they’re going to assume he had some personal knowledge, which there’s no evidence
that he had any personal knowledge of what happened in these cases.” Tr. p. 1208.
                                                    6
       get anything in return and when they asked her, when they asked her why
       you were doing this, she told you. I had an Uncle that was murdered and it
       was never solved. That’s why I did this.

Tr. p. 1292.

       The jury found Tyler to be guilty as charged. On July 23, 2007, the trial court

sentenced Tyler to sixty years in the Department of Correction on Count I and forty-five

years on Count II, to be served concurrently. Tyler filed a direct appeal, challenging the

trial court’s amendment of the charging information and claiming that the sentence

imposed by the trial court was inappropriate. Another panel of this court affirmed, and

our supreme court denied transfer.

       On February 1, 2010, Tyler filed a pro se petition for post-conviction relief.

Approximately two and one half years later, on October 10, 2012, Tyler, by counsel, filed

an amended petition for post-conviction relief, arguing that she received ineffective

assistance of trial counsel and ineffective assistance of appellate counsel.

       The post-conviction court held a hearing on February 19, 2013. At the hearing,

the following exchange occurred between Shearer and Tyler’s post-conviction defense

counsel:

       Counsel: Are you familiar with women named Gregory Hiawatha Delores
       Mann?

       Shearer: Yes.

       Counsel: How are you familiar with Ms. Mann?

       Shearer: When I was downstairs, before I came up here, I had represented
       her in Judge Hopper’s case. And the prosecutor came to me in that case
       and said that she was a witness in a murder case and that I can’t—I don’t
       that she was going to let her out on bond or something like that and work

                                              7
with her and did I have any objections and I said I didn’t. I didn’t know
anything—she wouldn’t tell me what case it was or—I had know [sic] I
idea [sic] what she was talking about. It’s just that I had a client that was
going to cooperate and for that cooperation there was going to be
something. I mean, she apparently got out of jail—and I don’t know what
other things come of that. That was—then I was transferred upstairs, so I
was out of that case, so I don’t know what happened to it.

                                   ***

Counsel: At what point during your representation of [Tyler] did you
realize Ms. Mann [had] received a deal in the case you were representing
her on?

Shearer: I don’t know, sometime during the case, the two things clicked,
her name and what was going on and she was testifying against [Tyler],
which I became aware that I certainly had a conflict at that point. And I
notified Judge Newman that I thought I had [a] conflict. And of course this
was after a week of testimony or so. So, we were well into the trial. And
we had to make some decisions on how we were going to handle that type
of situation.

Counsel: Was there any discussion about you withdrawing on the case?

Shearer: Well yes. There was some discussion. I offered to withdraw from
the case because of my conflict. But that would’ve just left [Childers] who
I don’t think had much experience at that time trying criminal cases. So
that really wasn’t an alternative. I believe the compromise was made that
[Childers] would [cross-examine] Ms. Mann and I would not participate in
that.

Counsel: Do you remember if you informed [Tyler] that there was a
conflict?

Shearer: Well, I don’t know if I informed her. She was in court when I
informed the Court. I don’t know if I informed her ahead of time or not. I
probably did because when I realized what was happening, you know, I
think I informed [Childers] and I informed maybe [Tyler] that you know
that I might have to withdraw.

Counsel: Do you remember if she waived the conflict?

Shearer: No, I don’t.

                                     8
P.C.R. Tr. pp. 29-31.

      The following exchange occurred between Childers and Tyler’s defense counsel:

      Counsel: Do you recall whether you reviewed any videotaped statements
      made by Ms. Mann?

      Childers: I don’t remember if I did or not.            It’s possible, but I don’t
      remember that.

      Counsel: Did you view her chronological case summaries, do you
      remember?

      Childers: Oh, I’m sure I did.

      Counsel: Ms. Mann’s?

      Childers: Ms. Mann’s, yeah, because again a lot of it was, what did Ms.
      Mann hear while in jail, so obviously I was curious why she’s in jail and
      how that could perhaps be used to examine her credibility.

      Counsel: Were you aware, prior to the trial, that Mr. Shearer had previously
      represented Ms. Mann?

      Childers: Prior to trial, I don’t think I knew that.

      Counsel: Did you know at the time of her testimony that Ms. Mann had
      received a deal for her cooperation?

      Childers: I don’t recall—I don’t recall. And I don’t know if I addressed
      that on [cross-examination] or not. I don’t recall that.

      Counsel: Do you know at the time of her testimony whether she previously
      acted—whether Ms. Mann previously acted as a confidential informant?

      Childers: No, I don’t recall that, either.

      Counsel: If you had—would those had [sic] been things you would’ve
      asked her about if you knew about them ahead of time?

      Childers: Well, I mean potentially, but when you get into confidential
      informant situations, you certainly have to be careful and you get into

                                              9
       judicial discretion on what can be revealed and what not when it comes to
       confidentiality and their identity in another case. You have to be careful
       there, so, I can’t say that that’s an automatic. It would be something we’d
       have to discuss with the Court and try to make sure that that was safe to do.

P.C.R. Tr. pp. 9-10.

       On August 9, 2013, the post-conviction court issued its findings of fact and

conclusions of law denying Tyler’s petition for post-conviction relief. The court’s order

provided, in relevant part:

       11. Petitioner has failed to prove that Mr. Shearer or Childers provided
       ineffective assistance by not objecting to the apparent conflict that Mr.
       Shearer had with Ms. Mann. Mr. Shearer testified that he informed the
       Court that he had previously represented the witness Mann, and that he had
       been removed from her case on January 17, 2007 and new counsel
       appointed for her. It was decided that [co-counsel] Mr. Childers would
       conduct the cross-examination. Petitioner has not proved any prejudice by
       having Mr. Childers perform the [cross-examination]. Petitioner has failed
       to prove that Mr. Shearer or Mr. Childers performed deficiently, resulting
       in prejudice, she has failed to prove that Mr. Shearer or Mr. Childers
       provided ineffective assistance with respect to failing to object to the
       conflict.

       12. Petitioner failed to prove that Mr. Childers provided ineffective
       assistance by failing to properly [cross-examine] Ms. Mann. Petitioner did
       not offer any proof to rebut the strong presumption that Mr. Childers
       provided effective assistance. Mr. Childers had adequate time to prepare
       his [cross-examination] and crossed Ms. Mann’s credibility and the
       accuracy of her testimony. Mr. Childers felt he elicited all the information
       that the wanted to get out of Ms. Mann and that the cross was successful.
       Because Petitioner has failed to prove that Mr. Childers or Mr. Shearer
       performed deficiently, resulting in prejudice, she has failed to prove that Mr.
       Childers provided ineffective assistance with respect to her allegation of
       failing to properly [cross-examine] a witness.

Appellant’s P.C.R. App. pp. 94-95. (internal citations omitted).

       Tyler now appeals the post-conviction court’s denial of her petition for post-

conviction relief.

                                            10
                                   Standard of Review

       Post-conviction proceedings are not “super appeals” through which convicted

persons can raise issues they failed to raise at trial or on direct appeal. McCary v. State,

761 N.E.2d 389, 391 (Ind. 2002). Rather, post-conviction proceedings afford petitioners

a limited opportunity to raise issues that were unavailable or unknown at trial and on

direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). A post-conviction

petitioner bears the burden of establishing grounds for relief by a preponderance of the

evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). On appeal from the denial

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

negative judgment. Id. To prevail on appeal from the denial of post-conviction relief, the

petitioner must show that the evidence as a whole leads unerringly and unmistakably to a

conclusion opposite that reached by the post-conviction court. Id. at 643-44.

       Where, as here, the post-conviction court makes findings of fact and conclusions

of law in accordance with Indiana Post-Conviction Rule 1(6), we do not defer to the

court’s legal conclusions, but “the 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. at 644.

                                Discussion and Decision

       Tyler argues that she was denied the effective assistance of trial counsel because

Shearer’s assistance was impaired by a conflict, namely his prior representation of the

State’s informant, Mann, in another criminal case.



                                            11
       Our supreme court summarized the law regarding claims of ineffective assistance

of trial counsel in Timberlake v. State as follows:

       A defendant claiming a violation of the right to effective assistance of
       counsel must establish the two components set forth in Strickland v.
       Washington, 466 U.S. 668 (1984). First, the defendant must show that
       counsel’s performance was deficient. This requires a showing that
       counsel’s representation fell below an objective standard of reasonableness,
       and that the errors were so serious that they resulted in a denial of the right
       to counsel guaranteed the defendant by the Sixth Amendment. Second, the
       defendant must show that the deficient performance prejudiced the defense.
       To establish prejudice, a defendant must show 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 is a
       probability sufficient to undermine confidence in the outcome.

       Counsel is afforded considerable discretion in choosing strategy and tactics,
       and we will accord those decisions deference. A strong presumption arises
       that counsel rendered adequate assistance and made all significant decisions
       in the exercise of reasonable professional judgment. The Strickland Court
       recognized that even the finest, most experienced criminal defense
       attorneys may not agree on the ideal strategy or the most effective way to
       represent a client. Isolated mistakes, poor strategy, inexperience, and
       instances of bad judgment do not necessarily render representation
       ineffective. The two prongs of the Strickland test are separate and
       independent inquiries. Thus, [i]f it is easier to dispose of an ineffectiveness
       claim on the ground of lack of sufficient prejudice ... that course should be
       followed.

753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations omitted).

       A criminal defendant’s Sixth Amendment right to effective assistance of counsel

includes the right to conflict-free representation. Tate v. State, 515 N.E.2d 1145, 1146

(Ind. Ct. App. 1987), trans. denied. To establish a deprivation of the right to counsel due

to a conflict, a defendant who failed to raise the objection at trial must demonstrate that

trial counsel had an actual conflict of interest and that the conflict adversely affected

counsel’s performance. Id. To demonstrate an adverse effect on performance caused by

                                             12
counsel’s failure to act, the defendant must show that “(1) a plausible strategy or tactic

that was not followed but might have been pursued; and (2) an inconsistency between

that strategy or tactic and counsel’s other loyalties, or that the alternate strategy or tactic

was not undertaken due to the conflict.” Woods v. State, 701 N.E.2d 1208, 1223 (Ind.

1998). Once a defendant has demonstrated an actual conflict and an adverse effect on his

lawyer’s performance, the prejudice prong of an ineffective assistance claim is presumed.

Id. The mere possibility of a conflict, however, is not sufficient to impugn a criminal

conviction. Davidson v. State, 558 N.E.2d 1077 (Ind. 1990).

       Tyler argues that Shearer “provided ineffective assistance when he failed to

withdraw after learning he had a conflict of interest because he previously represented

Mann.” Appellant’s Br. at 6. She claims that Shearer’s conflict prejudiced her because

Childers, Shearer’s co-counsel, did not impeach Mann at all on cross-examination when

Mann claimed that she was testifying “for altruistic reasons.” Id. We agree.

       Tyler’s trial counsel’s performance was adversely affected by the presence of

actual conflict, which prevented trial counsel from impeaching Mann’s credibility by

cross-examining her as to her pending drug charges and subsequent reduction in bond

and release. The facts of this case are similar to those in Tate v. State, 515 N.E.2d 1145

(Ind. Ct. App. 1987), where another panel of this court reversed the convictions of two

co-defendants, concluding that an actual conflict of interest existed between codefendants

in a prosecution for the theft of groceries, where one co-defendant proclaimed his own

innocence by suggesting that it was the other co-defendant who stole the groceries. The

court held that, once the conflict arose, performance of joint counsel was impaired as to

                                              13
both co-defendants by their counsel’s continued active representation, because counsel

was precluded from cross-examining witnesses on behalf of each of the co-defendants.

Therefore, we conclude that Tyler has established that an actual conflict of interest

existed.

       Furthermore, because Mann’s credibility was of great consequence to the jury’s

consideration of this case, we cannot agree with the post-conviction court that Tyler was

not prejudiced, especially in light of the prosecutor’s apparently inaccurate comment

during closing argument that Mann had no ulterior motives in testifying against Tyler.

“‘Cross-examination is the principal means by which the believability of the witness and

the truth of [her] testimony are tested.’” Coates v. State, 534 N.E.2d 1087, 1095 (Ind.

1989) (quoting Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347

(1974)); see also Murray v. State, 761 N.E.2d 406, 408 (Ind. 2002) (linking cross-

examination regarding witness’s plea agreement to jury’s task of resolving conflicts in

the evidence and determining witness credibility). If, through a vigorous and thorough

cross-examination by trial counsel, Mann’s credibility had been seriously challenged and

perhaps even undermined by the admission of evidence regarding Mann’s bond

reduction, release, and dismissal of one of her pending cases subsequent to her becoming

an informant, we believe there is a reasonable probability that the results of the

proceeding would have been different.

       Allowing Mann, to testify unchallenged that she acted as an informant for purely

altruistic reasons resulted in clear prejudice to Tyler and, as a result, a verdict that was

not fairly reached. It is apparent to us that this failure was not a matter of a trial strategy,

                                              14
but, rather, a matter of Shearer’s failure to withdraw when he learned of the conflict and

Childers’s inadequate cross-examination. The trial transcript makes clear that Shearer

had personal knowledge of Mann’s deal. Tr. pp. 1202-03. When, during Tyler’s trial,

Shearer attempted to enter into evidence the CCSs showing that Mann received favorable

treatment after becoming an informant for the State, the State objected, stating “when

[the jury sees] that Mr. Shearer was [Mann’s] attorney, they’re going to assume he had

some personal knowledge.” Tr. p. 1208. The trial court sustained the State’s objection.

The fact that the CCSs were not admitted caused prejudice to Tyler, and it was because of

Shearer’s prior representation of Mann that the trial court refused to admit the evidence.

       Shearer’s prior representation of Mann also prevented him from cross-examining

Mann. He instead relied upon co-counsel Childers, but Childers did not even attempt to

challenge Mann when she claimed that she received no consideration from the prosecutor

for her testimony, despite having access to a videotaped interview and CCSs which

clearly indicated otherwise. See Shepherd v. State, 924 N.E.2d 1274, 1288-89 (Ind. Ct.

App. 2010) (holding that defendant received ineffective assistance of trial counsel where

trial counsel’s assistance was adversely affected by an actual conflict of interest where

counsel also represented defendant’s girlfriend, who testified for the State against

defendant; girlfriend’s testimony was directly related to possession of the cocaine; and

girlfriend’s credibility was an important factor for the jury’s consideration); Smith v.

State, 721 N.E.2d 213, 219 (Ind. 1999) (holding that “[b]ecause [the witness]’s testimony

was essential to the State’s case . . . we cannot conclude that this restriction on exploring

[the witness]’s bias was harmless beyond a reasonable doubt”); Newman v. State, 263

                                             15
Ind. 569, 571-572, 574, 334 N.E.2d 684, 686-688 (1975) (holding that the prosecution’s

nondisclosure of evidence regarding an agreement of leniency made with a prosecution

witness, an accomplice of the defendant, constituted reversible error); Hall v. United

States, 371 F.3d 969 (7th Cir. 2004) (concluding that defendant was entitled to an

evidentiary hearing on his claim that he was denied effective assistance of counsel based

on his trial counsel’s conflict of interest, arising from counsel’s previous representation

of informant who had allegedly provided to FBI agents information about co-

conspirator’s drug-distribution activities at federal prison, where defendant could

establish that counsel’s conflict of interest affected adequacy of representation if he could

show that counsel neglected preparation for trial while pressuring him to plead guilty

because of conflicting interest).

       Because Tyler has established an actual conflict and an adverse effect on her trial

counsel’s performance, the prejudice prong of her ineffective assistance claim is

presumed.     See Woods, 701 N.E.2d at 1223.               Accordingly, under the facts and

circumstances before us, we hold that the post-conviction court erred in finding that Tyler

did not receive ineffective assistance of trial counsel.

                                         Conclusion

       For all of these reasons, we conclude that the post-conviction court erred in

determining that Tyler received effective assistance of trial counsel. We reverse the

judgment of the post-conviction court, vacate Tyler’s convictions for murder and Class A

felony aiding, inducing, or causing robbery, and remand this cause for retrial.

       Reversed.

                                              16
BRADFORD, J., concurs with separate opinion.

ROBB, J., dissents in part and concurs in result in part with opinion.




                                            17
                              IN THE
                    COURT OF APPEALS OF INDIANA

ANISSA L. TYLER,                                  )
                                                  )
       Appellant-Petitioner,                      )
                                                  )
              vs.                                 )     No. 48A04-1309-PC-428
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Respondent.                       )



BRADFORD, Judge, concurring.


       I concur with the majority that the post-conviction court erred in denying Tyler’s

petition for post-conviction relief. However, I write separately to reiterate that while it is

well-established that this court does not reweigh the evidence presented before the post-

conviction court on review, in light of the particular facts presented in the instant matter,

I believe that the only reasonable inference that can gleaned from the record is that

Tyler’s trial counsel rendered ineffective assistance and that Tyler was prejudiced by trial

counsel’s ineffective assistance.

       During trial, Mann testified on behalf of the State about statements that she

claimed were made by Tyler which indicated that Tyler participated in the underlying

crimes. The undisputed facts demonstrate that prior to or during trial, Attorney Shearer

recognized a conflict of interest between his representation of Tyler and his former

                                             18
representation of Mann. Attorney Shearer indicated that he considered withdrawing from

his position as Tyler’s trial counsel but ultimately determined that withdrawal was not

necessary.

       In light of his conflict of interest, Attorney Shearer decided not to participate in

the defense’s cross-examination of Mann, instead allowing his co-counsel, Attorney

Childers, to cross-examine Mann.       However, for some unknown reason, Attorney

Childers did not challenge Mann’s credibility by questioning her about the benefit that

she received, i.e., release from prison and the dismissal of a felony charge, after she

spoke with detectives regarding Tyler’s alleged involvement in the underlying criminal

acts despite the fact that it is undisputed that defense counsel was aware of the benefit

Mann received. When asked during post-conviction proceedings why he didn’t challenge

Mann’s credibility by questioning her specifically about the benefit she received,

Attorney Childers merely stated: “well, I guess I accomplished what I wanted to

accomplish with her.” PCR Tr. p. 1205. The failure to question Mann about the benefit

she received leads to a reasonable inference that Tyler was prejudiced by the acts of trial

counsel. Further, while perhaps problematic for the conclusion of this particular trial and

insufficient to remove the prejudice suffered by Tyler, it very well may have been the

better course of action for Attorney Shearer to withdraw from his representation of Tyler

and to testify as an impeachment witness following Mann’s testimony.

       Moreover, it is important to note that the State does not argue and the record does

not support a determination that the ineffective assistance of Tyler’s trial counsel was

harmless in light of other evidence of Tyler’s guilt. Thus, because Tyler was prejudiced

                                            19
by the ineffective assistance rendered by her trial counsel, I agree with the majority that

the post-conviction court erred in denying Tyler’s request for post-conviction relief.




                                            20
                                IN THE
                     COURT OF APPEALS OF INDIANA

ANISSA L. TYLER,                             )
                                             )
          Appellant-Petitioner,              )
                                             )
           vs.                               )        No. 48A04-1309-PC-428
                                             )
STATE OF INDIANA,                            )
                                             )
          Appellee-Respondent.               )



ROBB, Judge, dissenting in part, concurring in result in part.

          I respectfully dissent from the majority’s conclusion that the post-conviction court

erred in denying Tyler’s petition for post-conviction relief because Shearer’s

representation of her was impaired by a conflict of interest. I do not believe there is a

reasonable probability Shearer’s withdrawal as her attorney when the trial was already

underway would have led to a different result. However, I do believe that Childers

provided ineffective assistance to Tyler in failing to adequately cross examine a key

State’s witness. Therefore, I agree with the majority’s ultimate conclusion that the post-

conviction court erred in denying Tyler’s petition for relief, and I respectfully concur in

result.

          Tyler’s amended petition for post-conviction relief alleged that she was

represented by Shearer and Childers and that her counsel, jointly and individually,

performed deficiently and caused prejudice by failing to object to an actual conflict of

                                                 21
interest and failing to properly cross-examine and discover/present evidence that would

have impeached a witness’s credibility. The post-conviction court found no ineffective

assistance by Shearer or Childers with regard to the conflict of interest and no ineffective

assistance by Childers with regard to his cross-examination of the witness. I agree with

the majority that Shearer’s previous representation of Mann created an actual conflict of

interest with respect to his representation of Tyler. See slip op. at 14. I also agree that

there is a reasonable probability that the result of the proceeding would have been

different if Mann’s credibility had been seriously challenged. See id. However, I do not

believe there is as direct a correlation between the two as the majority does. The majority

focuses on Shearer’s failure to withdraw as the primary cause of prejudice to Tyler, and

although I acknowledge the difficulties posed by Shearer’s involvement in Tyler’s case, I

would place the responsibility for the wrong impression the jury likely had of Mann and

her testimony on Childers’s shoulders for his handling of the cross-examination of her.

       It seems clear that Shearer did not realize his previous representation of Mann had

implications for Tyler’s case until after Tyler’s trial had started and there is no particular

indication that he should have realized it earlier. It also seems clear he told the court of

his conflict, and he considered withdrawing from the case but felt leaving Childers as the

sole attorney was not a good option because he was inexperienced. Shearer therefore

remained on the case but asked Childers to cross examine Mann. The concurring opinion

opines that the better option may have been for Shearer to withdraw and testify as an

impeachment witness. But regardless of whether or not Shearer withdrew, he could not

use or share his knowledge of what had transpired in Mann’s earlier cases either with

                                             22
Childers or with the jury without breaching confidentiality and disclosing information he

gained through his representation of Mann to Mann’s possible detriment. He could not

withdraw and then tell Childers what he knew. And even if he had never been involved

in Tyler’s case, he still could not have told Childers or any other attorney who might have

been representing Tyler what he knew. Thus, although Shearer’s prior representation of

Mann was problematic, his withdrawal would not have cured the problem, and I disagree

with the majority opinion to the extent it find prejudice based primarily on Shearer’s

failure to withdraw.2

       Childers admitted he had all the tools any other attorney who had no personal

knowledge of Mann’s prior history would have had: her videotaped statement to police

during which she was advised the prosecutor would be informed of her cooperation and

the chronological case summaries of her earlier cases showing that her bond was reduced

and she was released from jail within one month of having been previously denied a bond

reduction and within one week of speaking with police and also showing that one of her

pending cases was ultimately dismissed. Childers testified on post-conviction that he

could not recall whether he reviewed the videotaped statements but was “sure” he did

review the chronological case summaries. But he clearly did not press Mann on cross-

examination about how those materials conflicted with her stated reason for offering

information and testimony about Tyler. Shearer was a direct—but unusable in any

circumstance—source of information about Mann’s deal, but the available materials,

       2
          The majority does discuss Childers’s cross examination of Mann, but within the context of
Childers having to conduct the cross examination because Shearer’s conflict prevented him from
conducting the cross examination himself. See slip op. at 15.
                                                23
employed properly, could also have raised an inference of the same. It was Childers’s

failure to thoroughly review or properly utilize those materials that led to the jury

receiving an inaccurate picture of Mann’s credibility.

       Accordingly, I agree with the post-conviction court’s finding that Tyler failed to

prove that Shearer or Childers provided ineffective assistance for how they handled

Shearer’s conflict, and I therefore dissent from the majority opinion deciding otherwise.

However, I disagree with the post-conviction court’s finding that Tyler also failed to

prove Childers provided ineffective assistance in his cross examination of Mann. I

therefore concur with the majority’s ultimate result that Tyler’s post-conviction petition

should have been granted.




                                            24
