MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Jun 26 2018, 7:36 am
regarded as precedent or cited before any                                    CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
      COURT OF APPEALS OF INDIANA

James Crawford,                                          June 26, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         32A01-1710-PC-2487
        v.                                               Appeal from the Hendricks Superior
                                                         Court
State of Indiana,                                        The Honorable Robert W. Freese,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         32D01-1501-PC-2



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A01-1710-PC-2487 | June 26, 2018             Page 1 of 9
                                             Case Summary
[1]   James Crawford appeals the denial of his petition for post-conviction relief. He

      contends that the post-conviction court clearly erred in determining that he

      failed to demonstrate that he received the ineffective assistance of trial counsel.

      Concluding that Crawford has not met his burden to prove that he received

      ineffective assistance, we affirm.


                                 Facts and Procedural History
[2]   On January 23, 2006, Crawford and his brother (collectively “the Brothers”)

      were each charged with six counts of class B felony robbery (six different

      victims), seven counts of class D felony theft, and six counts of class D felony

      criminal recklessness, for a total of nineteen counts. The Brothers originally

      hired attorney John Moss to represent them, but after he repeatedly failed to

      appear for hearings, the Brothers hired attorney Joseph Thoms to represent

      them.


[3]   Prior to trial, attorney Thoms negotiated a plea deal with the deputy prosecutor

      which would have resulted in a fourteen-year prison sentence for each of the

      Brothers. Despite the strong recommendation from their attorney that they

      should accept the deal, the Brothers rejected the plea agreement. The Brothers

      waived the right to a jury trial, both orally and in writing, and the case

      proceeded to a bench trial on August 31, 2007.


[4]   During trial, the State called eight witnesses which included the six alleged

      armed robbery victims, the owner of the handgun used to facilitate the

      Court of Appeals of Indiana | Memorandum Decision 32A01-1710-PC-2487 | June 26, 2018   Page 2 of 9
      robberies, and the police detective assigned to the case. Robbery victim

      Samantha Stevenson testified that one of the Brothers pointed a gun and

      ordered the six victims to get on the floor on their stomachs. She was five

      months pregnant at the time, so it was difficult for her to stay on her stomach,

      but one of the Brothers kept yelling at her and nudged her with his foot. One of

      the Brothers took her engagement and wedding rings off her finger. One of the

      Brothers kicked her hand. The Brothers repeatedly threatened to kill the six

      victims. Several of the victims testified that Crawford and his brother passed

      the gun back and forth during the robbery and that Crawford pointed the gun

      right at their heads.


[5]   At the trial’s conclusion, the court found the Brothers guilty of six counts of

      class B felony robbery and six counts of class D felony theft. The trial court

      found the Brothers not guilty of one count of class D felony theft and not guilty

      of the six counts of class D felony criminal recklessness. The court sentenced

      Crawford to the advisory sentence of ten years on each robbery count, to be

      served consecutively, and six months for each theft count, to be served

      concurrently with each other and with the sentences on the robbery counts, for

      an aggregate sentence of sixty years’ imprisonment.


[6]   No direct appeal was ever filed, but on January 21, 2015, the Brothers filed

      separate petitions for post-conviction relief alleging, among other things, that

      they received ineffective assistance of trial counsel. An evidentiary hearing was

      held on September 18, 2015. The Brothers called attorney Thoms to testify.

      Attorney Thoms stated that he met with the Brothers on multiple occasions

      Court of Appeals of Indiana | Memorandum Decision 32A01-1710-PC-2487 | June 26, 2018   Page 3 of 9
      prior to trial. He testified that he specifically advised the Brothers that they

      faced “upwards of 120 years” because the maximum sentence for a class B

      felony was twenty years and then it would be “times 6.” PCR Tr. Vol. 2 at 7.

      Attorney Thoms testified that, against his clear advice, the Brothers rejected the

      plea offer that he had negotiated with the State. Attorney Thoms further

      testified that, due to the overwhelming evidence against the Brothers, he

      believed the best defense strategy was to challenge the State’s case through

      vigorous cross-examination of the witnesses, and to move for a directed verdict

      at the conclusion of the State’s case, which he did. The Brothers also testified at

      the hearing.


[7]   On September 27, 2017, the post-conviction court entered its findings of fact,

      conclusions thereon, and order denying Crawford’s petition for relief. This

      appeal ensued.


                                     Discussion and Decision
[8]   The petitioner in a post-conviction proceeding has the burden of establishing

      grounds for relief by a preponderance of the evidence. Ellis v. State, 67 N.E.3d

      643, 646 (Ind. 2017). When appealing the denial of a petition for post-

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

      negative judgment. Id. To prevail on appeal, a 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. Where, as here, the post-

      conviction court makes findings of fact and conclusions of law as required by

      Indiana Post-Conviction Rule 1(6), we will reverse its findings only upon a
      Court of Appeals of Indiana | Memorandum Decision 32A01-1710-PC-2487 | June 26, 2018   Page 4 of 9
       finding of clear error, namely “that which leaves us with a definite and firm

       conviction that a mistake has been made.” Id. (citation omitted). We will not

       reweigh the evidence or judge the credibility of witnesses, and will consider

       only the probative evidence and reasonable inferences flowing therefrom that

       support the post-conviction court’s decision. Hinesley v. State, 999 N.E.2d 975,

       981 (Ind. Ct. App. 2013), trans. denied (2014).


[9]    When evaluating an ineffective assistance of counsel claim, we apply the two-

       part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Humphrey

       v. State, 73 N.E.3d 677, 682 (Ind. 2017). “To satisfy the first prong, ‘the

       defendant must show deficient performance: representation that fell below an

       objective standard of reasonableness, committing errors so serious that the

       defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.’” Id.

       (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the

       second prong, the defendant must show prejudice. Id. To demonstrate

       prejudice from counsel’s deficient performance, a petitioner need only show “a

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

       the proceeding would have been different.” Middleton v. State, 72 N.E.3d 891,

       891-92 (Ind. 2017) (emphasis and citation omitted). “A reasonable probability is

       a probability sufficient to undermine confidence in the outcome.” Id.


[10]   Isolated poor strategy, inexperience, or bad tactics does not necessarily

       constitute ineffective assistance. Hinesley, 999 N.E.2d at 982. When

       considering a claim of ineffective assistance of counsel, we strongly presume

       “that counsel rendered adequate assistance and made all significant decisions in

       Court of Appeals of Indiana | Memorandum Decision 32A01-1710-PC-2487 | June 26, 2018   Page 5 of 9
       the exercise of reasonable professional judgment.” Id. (citation omitted). We

       presume that counsel performed effectively, and a defendant must offer strong

       and convincing evidence to overcome this presumption. Id.


[11]   We must acknowledge that the judge who presided over Crawford’s bench trial

       is also the judge who presided over the post-conviction proceedings, and

       therefore the post-conviction court’s findings and judgment are entitled to

       “greater than usual deference.” Id. (quoting McCullough v. State, 973 N.E.2d 62,

       75 (Ind. Ct. App. 2012), trans. denied (2013)). Indeed, we have explained that,

       in such a case, the judge is uniquely situated to assess whether trial counsel’s

       performance fell below an objective standard of reasonableness and whether,

       but for counsel’s unprofessional conduct, there was a reasonable probability

       that a different verdict would have been reached. Id.


[12]   Crawford first argues that trial counsel was ineffective for failing to correctly

       advise him of the potential sentence he faced and failing to ensure that he

       “knowingly and intelligently rejected the plea agreement offered by the

       prosecution.” Appellant’s Br. at 16. However, this issue was not raised in

       Crawford’s petition for post-conviction relief and was therefore properly

       determined by the post-conviction court to be waived. Accordingly, the issue is

       not available for appellate review.1 See Pruitt v. State, 903 N.E.2d 899, 906 (Ind.




       1
         Waiver notwithstanding, attorney Thoms testified unequivocally that he advised Crawford of the potential
       lengthy sentence that he faced and further advised Crawford to accept the plea agreement. We are
       unpersuaded that the trial court’s misstatement regarding the maximum possible sentence that occurred at the
       beginning of the bench trial and after Crawford had already rejected the plea agreement in writing had any

       Court of Appeals of Indiana | Memorandum Decision 32A01-1710-PC-2487 | June 26, 2018            Page 6 of 9
       2009) (“Issues not raised in the petition for post-conviction relief may not be

       raised for the first time on post-conviction appeal.”) (quoting Allen v. State, 749

       N.E.2d 1158, 1171 (Ind. 2001)).


[13]   Crawford also questions the adequacy of counsel’s trial preparation and chosen

       defense strategy, asserting that counsel was ineffective in failing to proffer a

       “fake robbery” defense and argue that the Brothers arranged the whole incident

       with one of the alleged victims. Appellant’s Br. at 25. Specifically, Crawford

       claims that attorney Thoms failed to obtain his former attorney’s files (including

       depositions) or spend sufficient time with the Brothers to prepare the “fake

       robbery” defense. The post-conviction court found:


                38. Regarding the depositions, attorney Thoms stated that he
                was unsuccessful in attempting to get attorney Moss to turn over
                his files or the depositions. Attorney Moss had a history of failing
                to appear in court. Attorney Thoms admitted that he did not
                attempt to obtain a copy from the Court’s file. Nevertheless,
                Petitioners have failed to demonstrate how knowledge of the
                contents of the depositions would have resulted in an acquittal.
                The evidence in this case was very strong. All six armed robbery
                victims testified that [the Brothers] robbed them. Minor
                inconsistencies in their testimony did not refute or lessen the
                overwhelming conclusion that the Brothers robbed them at
                gunpoint. At the PCR hearing, both Brothers admitted to
                committing the armed robbery.




       effect on his decision to reject the agreement. Crawford has shown neither that counsel performed deficiently
       nor that such performance prejudiced him.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1710-PC-2487 | June 26, 2018              Page 7 of 9
               39. The “pretend robbery” defense claimed by [Crawford] had
               obvious limitations and drawbacks starting with the fact that the
               alleged agreement to fake a robbery would have only applied to
               one person and not to the other five people who were robbe[d] at
               gunpoint. Furthermore, at the PCR hearing, [Crawford]
               admitted that it turned into a real robbery. His brother never
               thought it to be anything else. The Brothers had no real defense
               to their crimes. Nevertheless, attorney Thoms assisted them in
               the exercise of their constitutional right to make the state prove
               its case beyond a reasonable doubt. This court will not second-
               guess matters of strategy by trial counsel.

               40. Attorney Thoms subjected the State’s case to adversarial
               testing and his performance did not fall below an objective
               standard of reasonableness based upon prevailing professional
               norms. Petitioners have failed to prove ineffective assistance of
               counsel.


       Appealed Order at 7-8.


[14]   As found by the post-conviction court, Crawford has failed to present strong

       and convincing evidence to overcome the presumption that counsel was

       adequately prepared for trial or that it is reasonably probable that additional

       preparation (such as obtaining the depositions) would have resulted in a

       different verdict. Attorney Thoms testified that he met with the Brothers on

       multiple occasions, conducted discovery, and was adequately prepared for trial.

       He believed that the evidence against the Brothers was overwhelming and that

       the best defense strategy was to challenge the State’s case through vigorous

       cross-examination of the witnesses. It is well settled that choice of defense

       theory is a matter of trial strategy, and trial strategy “is not subject to attack


       Court of Appeals of Indiana | Memorandum Decision 32A01-1710-PC-2487 | June 26, 2018   Page 8 of 9
       through an ineffective assistance of counsel claim, unless the strategy is so

       deficient or unreasonable as to fall outside of the objective standard of

       reasonableness.” Benefield v. State, 945 N.E.2d 791, 799 (Ind. Ct. App. 2011).

       The post-conviction court concluded that attorney Thoms’s performance did

       not fall below an objective standard of reasonableness in this regard, and

       Crawford has not shown that the evidence as a whole leads unerringly and

       unmistakably to an opposite conclusion. Accordingly, we affirm the denial of

       his petition for relief.


[15]   Affirmed.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1710-PC-2487 | June 26, 2018   Page 9 of 9
