MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                             Oct 28 2016, 5:34 am

regarded as precedent or cited before any                             CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court
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
Mario Joven                                              Jodi Kathryn Stein
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

William Taylor,                                          October 28, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         06A01-1511-PC-1876
        v.                                               Appeal from the Boone Circuit
                                                         Court
State of Indiana,                                        The Honorable Matthew C.
Appellee-Plaintiff.                                      Kincaid, Special Judge
                                                         Trial Court Cause No.
                                                         06C01-1210-PC-380



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 06A01-1511-PC-1876 | October 28, 2016   Page 1 of 15
                                       Statement of the Case
[1]   William Taylor (“Taylor”) appeals the denial of his petition for post-conviction

      relief. He specifically contends that the post-conviction court erred in denying

      his petition because he received ineffective assistance of trial counsel when

      counsel failed to communicate a plea offer to him. Finding that Taylor has

      failed to show that he was prejudiced by trial counsel’s deficient performance,

      and that the post-conviction court did not err in denying his petition, we affirm.


[2]   We affirm.


                                                     Issue
              The sole issue for our review is whether the post-conviction court
              erred in denying Taylor’s petition for post-conviction relief.


                                                     Facts
[3]   This Court set forth the facts in a memorandum decision in Taylor’s direct

      appeal as follows:

              Taylor was N.H.’s stepfather, and he lived with her and her
              mother, S.H., in Boone County while N.H. was between the ages
              of five and eight. In 1999, N.H. first remembers Taylor coming
              into her room at night, climbing into her bed, and putting his
              hand down her pants underneath her underwear when she was
              about seven years old. Taylor would ask N.H. if she knew what
              a man’s penis looked like and whether she liked what he was
              doing to her. Taylor committed these acts three or four times a
              week and continued to fondle N.H. even after her sister was born
              and sleeping in the same room.



      Court of Appeals of Indiana | Memorandum Decision 06A01-1511-PC-1876 | October 28, 2016   Page 2 of 15
        The family moved to another house in Boone County in July
        2001 when N.H. was in the fourth grade. While there, Taylor
        began putting his mouth on N.H.’s vagina and fondling her
        breasts.

        Taylor would also make N.H. put her mouth on his penis. On
        Sundays, after S.H. left for work, Taylor would take N.H. into
        his bedroom, lock the door, and undress them both. Taylor
        would then force N.H. to either give or receive oral sex. When
        Taylor forced N.H. to give oral sex, he would ejaculate into her
        mouth. Taylor took N.H. into his bedroom two to three times a
        week.

        Taylor once forced N.H. to kneel in the kitchen and put his penis
        into her mouth, choosing that location so that he could look out
        the windows to ensure that nobody came home. Taylor also
        continued to go into the room that N.H. shared with her younger
        sister and sexually fondle N.H. at night, while her sister was in
        the room.

        Taylor would tell N.H. that he loved her and often apologized
        after molesting N.H. But a few days later, he would commit the
        same act and apologize yet again. The cycle continued this way
        for a long time.

        When N.H. threatened to tell someone, Taylor laughed and told
        her that if she told anyone, he would go to prison and N.H.’s
        sister would grow up without a father, just like N.H. Taylor also
        told her that the family would not have any money and would
        lose their home.

        When N.H. eventually told her mother, she contacted the police.
        Boone County Sheriff’s Department Detective Thomas Beard
        and Indiana State Police Detective Jim Dungan took [then
        seventeen-year-old] N.H. to Suzy’s Place, a child advocacy
        center, for a forensic interview on December 17, 2009. Detective
        Dungan worked cases in Hendricks County, and N.H. had
        indicated that some of the molestations had occurred there.

Court of Appeals of Indiana | Memorandum Decision 06A01-1511-PC-1876 | October 28, 2016   Page 3 of 15
              After the interview, N.H. called Taylor while Detectives Beard
              and Dungan recorded the conversation. During the telephone
              conversation, N.H. told Taylor that she had told her mother
              about the “oral stuff,” and Taylor exclaimed, “I’m going, I’m in
              jail, I’m done. I’m dead.” Tr. p. 594. He continued, “I’ll go to
              prison for the rest of my life now ... I don’t know why I did it,
              started anything with you.” Id. at 595. Taylor told N.H. to tell
              her mother that “it was just that one (1) time and both of us has
              been sorry ever since, but we haven’t done anything since. I’m in
              jail.” Id. at 596. When N.H. stated that “it happened a lot,”
              Taylor replied, “I know it and I’m sorry for everything.” Id.
              Taylor attempted to explain to N.H. that he molested her because
              he “was in love with [her]” and “wanted to teach [her] what sex
              was supposed to be like....” Id. at 597–98.

              After the telephone conversation, Detectives Beard and Dungan
              went to Taylor’s apartment in Brownsburg to speak with him.
              And after speaking with the Hendricks County Prosecutor’s
              Office regarding their criminal investigation, the detectives
              arrested Taylor and took him to the Hendricks County jail on
              December 17, 2009.

      Taylor v. State, Cause Number 06A04-1104-CR-272, slip op. 2-4 (Ind. Ct. App.

      Dec. 20, 2011).


[4]   Taylor was charged in Hendricks County with ten counts for the most recent

      offenses against N.H., including two counts of Class A felony child molesting,

      four counts of Class B felony sexual misconduct with a minor, two counts of

      Class C felony misconduct with a minor, Class C felony child molesting, and

      Class D felony child seduction. Based on the same investigation, in February

      2010, the State charged Taylor in Boone County with one count of Class B

      felony child molesting based upon sexual deviate conduct, which had occurred


      Court of Appeals of Indiana | Memorandum Decision 06A01-1511-PC-1876 | October 28, 2016   Page 4 of 15
      before the offenses charged in Hendricks County. Taylor hired attorney Allen

      Lidy (“Lidy”) to represent him in both cases.


[5]   In September 2010, Taylor wrote a letter to Lidy wherein he explained that he

      did not know how much longer he could “take being locked up” because of his

      blood pressure. (Taylor’s Ex. A). Taylor asked Lidy why Boone County had

      only charged him with one Class B felony while Hendricks County had charged

      him with ten offenses, which included Class A, B, C, and D felonies, and

      whether there were discrepancies in N.H.’s and her mother’s depositions.

      Taylor also asked the likelihood of “beating the charges in Hendricks County

      and beating the charges in Boone County.” (Taylor’s Ex. A). Taylor further

      asked Lidy what the State was offering in pleas and what he should do.


[6]   Although Lidy hoped for a “global plea, meaning a plea that would encompass

      both cases in both counties,” with concurrent sentences that would not subject

      sixty-two-year-old Taylor to a de facto life sentence, the only offer from

      Hendricks County was for Taylor to plead guilty to Class A felony child

      molesting with a cap of forty-five years executed. (Tr. 65). Taylor, however,

      did not want to admit to a Class A felony offense, and trial was scheduled for

      February 14, 2011. At the time, there were no plea negotiations with or offers

      from Boone County.


[7]   In January 2011, the Boone County prosecutor offered Taylor the opportunity

      to plead guilty as charged to the Class B felony offense by the January 24, 2011

      plea agreement deadline. If Taylor did not accept the offer, the State planned to


      Court of Appeals of Indiana | Memorandum Decision 06A01-1511-PC-1876 | October 28, 2016   Page 5 of 15
      amend the information to two Class A felony child molesting charges based

      upon Taylor’s age. Lidy did not communicate this plea offer to Taylor, and the

      plea agreement deadline passed without resolution of the case. The trial court

      subsequently granted the State’s motion to amend the information to two

      counts of Class A felony child molesting. A jury convicted Taylor of both

      counts in February 2011, and the trial court sentenced Taylor to forty years for

      each conviction with the sentences to run consecutively.


[8]   Following the Boone County convictions, the Hendricks County trial was

      rescheduled, and Lidy began plea negotiations with the prosecutor’s office.

      Taylor eventually pled guilty to Class C felony child molesting, two counts of

      Class C felony sexual misconduct with a minor, and Class D felony child

      seduction in exchange for a twenty-five-year sentence, which ran concurrently

      with the eighty-year Boone County sentence.


[9]   After this Court affirmed Taylor’s Boone County convictions on direct appeal,

      Taylor filed a petition for post-conviction relief wherein he argued that Lidy

      was ineffective for failing to tell him about the Boone County plea offer. At the

      post-conviction hearing, Lidy testified that his strategy was to find a global

      resolution plea agreement with concurrent sentences in both counties to avoid a

      de facto life sentence. He admitted that he had not communicated the Boone

      County plea offer to Taylor. Specifically, Lidy never told Taylor that if he did

      not accept the State’s offer to plead guilty to the Boone County Class B felony,

      the State would amend the information to two Class A felony child molesting

      charges. However, Lidy further testified that Taylor would not have pled guilty

      Court of Appeals of Indiana | Memorandum Decision 06A01-1511-PC-1876 | October 28, 2016   Page 6 of 15
       to the Boone County Class B felony even if Lidy had communicated the offer to

       him. First, according to Lidy, Taylor never wanted to admit to a Class A or B

       felony offense at any point. Lidy further explained that if Taylor had accepted

       the Class B felony offer in Boone County while the Hendricks County case was

       still pending, Lidy could not “imagine [Hendricks County] doing anything

       except either making [Taylor] go to trial or plead the A felony because he

       already admitted the offense in Boone County.” (Tr. 63). Lidy explained that

       if Taylor had pled guilty in Boone County, “it would have made it next to

       impossible to get any kind of a proposal that he could [have accepted in

       Hendricks County].” (Tr. 68). Taylor testified that he would have accepted the

       plea offer so that he would not have had to “put [his] family through a trial.”

       (Tr. 101).


[10]   On October 14, 2015, the post-conviction court entered thirteen pages of

       detailed findings and conclusions, which provide, in relevant part, as follows:

                                               Findings of Fact

               1. On February 1, 2010, the Petitioner William L. Taylor
               (“Taylor”) who was sixty-one (61) years of age at the time was
               charged with child molesting, a class B felony. . . . As of
               December 10, 2009, Taylor had already been charged in
               Hendricks County with ten (10) counts related to additional
               allegations the same complaining witness had made and these
               included several A felony charges.

                                        *       *        *        *       *




       Court of Appeals of Indiana | Memorandum Decision 06A01-1511-PC-1876 | October 28, 2016   Page 7 of 15
        7. [Taylor’s counsel Allen] Lidy told this Court at its hearing in
        August that, at the time of his defense of Taylor in the Hendricks
        and Boone County cases, his strategy was to attempt to resolve
        both cases with a global plea which included concurrent
        sentences that would allow his sixty-two (62) year old client the
        possibility that he might someday be released from prison. The
        Courts [finds] that Lidy is telling the truth about his case strategy.

        8. The Court [finds] that this was a sensible strategy to formulate
        on Taylor’s behalf. Taylor had made recorded statements
        implicating himself. The complaining witness was seventeen (17)
        years of age and apparently prepared to testify in the State’s case
        in chief. No other strategy was a better strategy.

        9. Lidy testified that he did not think Taylor would ever plead
        guilty to the B felony as it would be usable against Taylor in the
        Hendricks County case as 404(b) evidence. This was a
        reasonable concern actually held by Lidy at the time, the Court
        [finds].

        10. Lidy further believed that such an admission would result in
        the Hendricks County Prosecutor pulling the offer of a cap of
        forty-five (45) years. The Court [finds] that this was a reasonable
        belief Lidy actually held. Whether or not the Hendricks County
        Prosecutor would have done that is [] uncertain, but as a concern
        of the lawyer at the time is certainly not unreasonable. A plea to
        the B in Boone would undoubtedly have engendered risk in
        Hendricks County.

        11. Lidy also testified that Taylor did not want to admit B felony
        conduct. Even after the eighty (80) year sentence was handed
        down and Taylor [had been] given the opportunity to plead to a
        concurrent term in Hendricks County, the plea was still
        structured as an admission to C felony and lower conduct. The
        Court believes Lidy is telling the truth. As a matter of fact, at no
        time during the pendency of either criminal case did Taylor ever
        want to admit to any greater sexual misconduct than fondling.
Court of Appeals of Indiana | Memorandum Decision 06A01-1511-PC-1876 | October 28, 2016   Page 8 of 15
         Taylor’s professed desire to plead guilty to a B felony is a wish
         that developed only after he was convicted and it is born out of a
         motivation to shorten the sentences that were imposed after the
         State proved to a jury beyond a reasonable doubt that Taylor was
         guilty of A felony child molesting.

                                   *        *        *        *        *

         14. Lidy testified that the only offer from the Boone County
         Prosecutor’s office was for Taylor to take the maximum twenty
         (20) years executed on the B felony. The offer was couched with
         the proviso that, if it was not accepted, the State would move to
         amend the charge to an A felony and add a new charge.

         15. Lidy testified that he did not recall passing the offer on to
         Taylor. This Court believes that Lidy is telling the truth that he
         does not recall doing this. The Court [finds] that it is more likely
         than not that Lidy did not, in fact communicate the plea offer to
         Taylor before the final pre-trial conference.1 It is easy to infer
         why Lidy would not have thought doing so to be necessary in
         this case – incorrect though that thinking was. . . With the
         overall strategy of trying to avoid de facto life in prison, accepting
         a twenty (20) year sentence in Boone County, with no assurances
         at all that he would not get a long sentence in Hendricks and
         whose prosecution his guilty plea would be fortifying, would not
         make sense. It is not something that an attorney in Lidy’s
         position would see as desirable for his client. . . .

         16. Not only would a lawyer in Lidy’s position not see such a
         plea offer as valuable. Neither would a defendant in Taylor’s
         position. How would my acceptance of this plea give me a




1
 Taylor told this post-conviction Court that Lidy never conveyed the Boone County Prosecutor’s plea offer.
He is unrebutted in his testimony and the Court [finds] that as a matter of fact Lidy never conveyed the plea
offer to Taylor.

Court of Appeals of Indiana | Memorandum Decision 06A01-1511-PC-1876 | October 28, 2016           Page 9 of 15
        chance to not die in prison, a thoughtful person in Taylor’s
        position would ask.

        17. More to the point and aside from what the hypothetical
        “reasonable defendant” would do, this Defendant would not
        have seen this offer as an attractive option from where he sat in
        January of 2011. Taylor testified at the post-conviction hearing
        that “he always wanted to plead guilty to the B felony” in order
        to “spare the family” a trial. That is a false statement the Court
        [finds]. Taylor did not always want to plead guilty. He wrote his
        lawyer asking what the chances were of beating the charges in
        both Boone and Hendricks County. In his letter, he shows that
        he wanted to defend the allegations and to exploit any
        “discrepancy” in testimony of witnesses. . . . Taylor’s crocodile
        tears about wanting to “spare the family” carry the weight of a
        pocketful of tissues. The Court does not believe that Taylor
        would have pled guilty to B felony child molesting in Boone
        County in January of 2011.

                                 *       *        *        *       *

        19. What Taylor was interested in in 2011, which remains his
        interest today, was to someday leave prison alive. That goal
        would have been placed in jeopardy by pleading guilty to a crime
        and getting twenty (20) years from Boone County with no
        assurances of what might happen in Hendricks County.

                                 *       *        *        *       *

                                      Conclusions of Law

                                 *       *        *        *       *

        2. To prove that counsel performed ineffectively, Petitioner must
        show both deficient performance and resulting prejudice.
        Strickland v. Washington, 466 U.S. 668 (1984) . . . .

Court of Appeals of Indiana | Memorandum Decision 06A01-1511-PC-1876 | October 28, 2016   Page 10 of 15
                                 *       *        *        *       *

        8. [T]o show prejudice from a lawyer not timely completing a
        plea offer, a defendant must demonstrate (1) a reasonable
        probability both that he would have accepted the more favorable
        plea offer . . . and (2) that the plea would have been entered
        without the prosecution’s canceling it or the trial court’s refusing
        to accept it.

        9. Lidy did not convey a plea offer to Taylor. He could have
        conveyed what was offered. He should have conveyed what was
        offered. Lidy’s failure to convey the offer was unreasonable and
        deficient. . . The first part of the Strickland test is met.

        10. Taylor, however, was not prejudiced.

                                 *       *        *        *       *

        13. [I]f Lidy had timely informed Taylor of the offer, it would
        not have made any difference. Taylor wanted to beat the
        charges. Taylor wanted to get out of prison at some point.
        Taylor didn’t want to admit to more than fondling C felony
        conduct. Taylor would not have accomplished any of his
        objectives by pleading guilty to a B felony in January of 2011.

        14. Taylor has not carried his burden of proof to establish by a
        preponderance of the evidence a reasonable probability that he
        would have accepted the B felony plea offer had Lidy timely
        passed the offer on to him. . . .

(Post-Conviction Court’s Order Denying Relief). Taylor appeals the denial of

his petition.




Court of Appeals of Indiana | Memorandum Decision 06A01-1511-PC-1876 | October 28, 2016   Page 11 of 15
                                                   Decision
[11]   Taylor’s sole argument is that the post-conviction court erred in denying his

       petition. Post-conviction proceedings do not afford the petitioner an

       opportunity for a super appeal, but rather, provide the opportunity to raise

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

       direct appeal. Turner v. State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012), trans.

       denied. Post-conviction procedures create a narrow remedy for subsequent

       collateral challenges to convictions. Id. The petitioner must establish his claims

       by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).


[12]   A petitioner who has been denied post-conviction relief faces a rigorous

       standard of review on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).

       In reviewing the judgment of a post-conviction court, we consider only the

       evidence and reasonable inferences supporting the judgment. Hall v. State, 849

       N.E.2d 466, 468 (Ind. 2006). We may not reweigh the evidence or reassess the

       credibility of the witnesses. Id. at 468-69. We will affirm the post-conviction

       court’s denial of post-conviction relief unless the evidence leads “unerringly and

       unmistakably to a decision opposite that reached by the post-conviction court.”

       McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002). Only where the evidence is

       without conflict and leads to but one conclusion, and the post-conviction court

       has reached the opposite conclusion, will the court’s findings or conclusions be

       disturbed as being contrary to law. Hall, 849 N.E.2d at 469. We do not defer to

       the post-conviction court’s legal conclusions, but do accept its factual findings



       Court of Appeals of Indiana | Memorandum Decision 06A01-1511-PC-1876 | October 28, 2016   Page 12 of 15
       unless they are clearly erroneous. Ind. Trial Rule 52(A); Stevens v. State, 770

       N.E.2d 739, 746 (Ind. 2002), cert. denied).


[13]   Taylor argues that the post-conviction court erred in denying his petition

       because he received ineffective assistance of trial counsel when counsel failed to

       communicate a plea offer to him. The standard by which we review ineffective

       assistance of counsel claims is well-established. Jervis v. State, 28 N.E.3d 361,

       365 (Ind. Ct. App. 2015). In order to prevail on a claim of this nature, a

       petitioner must satisfy a two-pronged test showing that: (1) his counsel’s

       performance fell below an objective standard of reasonableness based on

       prevailing professional norms; and (2) there is a reasonable probability that, but

       for counsel’s errors, the result of the proceedings would have been different. Id.


[14]   Counsel is afforded considerable discretion in choosing strategy and tactics,

       and we will afford those decisions deference. Id. A strong presumption arises

       that counsel rendered adequate assistance and made all significant decisions in

       the exercise of reasonable professional judgment. Id. Even the finest, most

       experienced criminal defense attorneys may not agree on the ideal strategy or

       the most effective way to represent a client. Id. Isolated mistakes, poor

       strategy, inexperience, and instances of bad judgment do not necessarily render

       representation ineffective. Id. We will not speculate as to what may or may not

       have been advantageous trial strategy as counsel should be given deference in

       choosing a trial strategy which, at the time, and under the circumstances, seems

       best. Id.



       Court of Appeals of Indiana | Memorandum Decision 06A01-1511-PC-1876 | October 28, 2016   Page 13 of 15
[15]   Here, the parties agree that Lidy’s failure to communicate the Boone County

       plea offer to Taylor was deficient performance. See Woods v. State, 48 N.E.3d

       374, 381 (Ind. Ct. App. 2015) (holding that counsel’s failure to communicate

       plea offer to Woods was deficient performance); Dew v. State, 843 N.E.2d 556,

       570 (Ind. Ct. App. 2006) (concluding that Dew’s counsel acted unreasonably in

       failing to communicate the State’s plea offer to Dew), ), trans. denied.


[16]   The sole issue, therefore, is whether Taylor was prejudiced by his counsel’s

       deficient performance. In Dew, this Court explained that a petitioner satisfies

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

       was a reasonable probability that he would have accepted the plea offer defense

       counsel failed to communicate to him.2 Dew, 843 N.E.2d at 571.


[17]   Our review of the post-conviction court’s order reveals that the court concluded

       that Taylor failed to show a reasonable probability that he would have accepted

       the Boone County Class B felony offer. Specifically, the post-conviction court

       did not believe Taylor’s testimony that he had always wanted to plead guilty to

       the Boone County Class B felony. Rather, the post-conviction court concluded

       that, based on Taylor’s age and his letter to Lidy asking if it was possible for

       him to beat the charges in both counties and to exploit any discrepancy in the

       testimony of the witnesses, Taylor’s overriding goal was to find a way to leave




       2
        The petitioner must also show a reasonable probability that the plea would have been adhered to by the
       prosecution and accepted by the trial court. Woods, 48 N.E.3d at 382. Because we conclude that petitioner
       did not meet his burden regarding acceptance of the offer, we need not address whether the prosecution
       would have adhered to the agreement and whether the trial court would have accepted it.

       Court of Appeals of Indiana | Memorandum Decision 06A01-1511-PC-1876 | October 28, 2016       Page 14 of 15
       prison alive. In addition, the evidence revealed that Taylor did not want to

       admit to any sexual misconduct greater than fondling. Taylor would not have

       accomplished either of his goals by pleading guilty to a Class B felony in

       January 2011. In addition, based on evidence that a Class B felony plea in the

       Boone County case while the Hendricks County case was still pending could

       have made it impossible for Taylor to get any kind of proposal from Hendricks

       County that he could have accepted, the post-conviction court concluded that it

       would not have made sense for Taylor to plead guilty to the Class B felony.

       The evidence in this case simply does not lead “unerringly and unmistakably to

       a decision opposite that reached by the post-conviction court.” See McCary v.

       State, 761 N.E.2d at 391. We affirm the post-conviction court’s denial of

       Taylor’s petition.


[18]   Affirmed.


       Kirsch, J., and Riley, J. concur.




       Court of Appeals of Indiana | Memorandum Decision 06A01-1511-PC-1876 | October 28, 2016   Page 15 of 15
