Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the                              Nov 07 2013, 10:21 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

APPELLANT PRO SE:                               ATTORNEYS FOR APPELLEE:

DAVID FIELDS                                    GREGORY F. ZOELLER
Pendleton, Indiana                              Attorney General of Indiana

                                                CHANDRA K. HEIN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DAVID FIELDS,                                   )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 15A01-1301-PC-3
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                     APPEAL FROM THE DEARBORN SUPERIOR COURT
                          The Honorable James D. Humphrey, Judge
                               Cause No. 15C01-0904-PC-1




                                     November 7, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                  Case Summary and Issue

       David Fields, pro se, appeals the post-conviction court’s denial of his petition for

post-conviction relief. Fields presents one issue on appeal: whether he was denied the

effective assistance of his trial counsel. Concluding that Fields was not denied the

effective assistance of his trial counsel, we affirm.

                                Facts and Procedural History

              In 2000, Fields’s co-defendants, Michael Green and Nathan Haas,
       burglarized the home of Larry and Judith Pohlgeers in Dearborn County.
       Green and Haas took $850 from a dresser drawer. Using information
       gained in the first burglary, Green, Haas, Fields, and Brian Allen planned a
       second burglary. On August 2, 2002, they went to scope out the
       Pohlgeerses’ home, but left because there were too many people present.
       On August 4, 2002, they again went to scope out the residence.
              On August 5, 2002, Fields and his co-defendants decided to go
       ahead with the burglary. They were dressed in black, and Fields and Green
       wore pantyhose over their heads. They wore latex gloves and brought with
       them some pipes that they had covered in electrical tape. The Pohlgeerses
       were at home watching television. Fields and Green went inside, while
       Haas and Allen kept watch outside. Green attacked Mrs. Pohlgeers, and
       Fields attacked Mr. Pohlgeers, hitting them on the head with the pipes they
       had brought. They searched the dresser for money, but left when they did
       not find any.
              As a result of the attack, the Pohlgeerses both required stitches. Mr.
       Pohlgeers was sixty-seven years old and recovering from hip replacement
       surgery at the time of the attack. He was left with a permanent crease in his
       skull where Fields had hit him with a pipe. He has had ringing in his ears
       ever since. Mrs. Pohlgeers was sixty-five years old at the time of the attack
       and has permanent hearing loss in one ear from her injuries. The Pohlgeers
       no longer felt safe in their home, and family members did not want to visit
       there anymore. Therefore, they sold the home and incurred a loss on the
       sale.
              The similarity of the second burglary to the first led the police to
       suspect Green and Haas. Their investigation of the two men led them to
       Fields as well. When Fields heard that the police were looking for him, he
       turned himself in. Fields was charged with [count I] attempted robbery, a
       class A felony; [count II] conspiracy to commit robbery, a class A felony;
       [count III] burglary, a class A felony; [count IV] conspiracy to commit
       burglary, a class A felony; [count V] aggravated battery, a class B felony;
       and [count VI] battery with a deadly weapon, a class C felony. On
                                              2
      September 25, 2003, he entered a plea agreement, in which he agreed to
      plead guilty to attempted robbery, conspiracy to commit robbery, burglary,
      and conspiracy to commit burglary. The battery charges were dropped, and
      the conspiracy to commit robbery conviction was merged with the
      attempted robbery conviction.
              Fields was originally sentenced to three consecutive terms of fifty
      years, with twenty-one years suspended. As aggravating circumstances, the
      trial court found the age of the victims, that Fields had violated probation,
      that the victims were left with permanent injuries, Fields’s criminal history,
      and the calculating method in which the offenses were carried out. As
      mitigating circumstances, the trial court found that Fields had cooperated
      with the authorities and that his incarceration would be a hardship on his
      children. The trial court accorded little weight to these mitigators. On
      direct appeal, our court reversed Fields’s sentence, holding that the 150–
      year sentence exceeded the trial court’s statutory authority and that there
      was an insufficient factual basis to convict him of conspiracy to commit
      burglary as a class A felony. Fields v. State, 825 N.E.2d 841, 847, 849
      (Ind. Ct. App. 2005), reh’g denied, trans. denied.1
             1
               Our Court found that the factual basis did not support a conviction for conspiracy to
             commit burglary as a class A felony. Fields, 825 N.E.2d at 848. The overt act alleged by
             the State was the fact that the co-defendants scoped out the residence. This fact supports
             conspiracy to commit burglary as a class B felony, since they planned to enter a
             residence. Id. at 848-49. However, the factual basis did not show that they planned to
             inflict bodily injury, which is required for a class A felony. Id. at 849.
             Our Court also concluded that Fields’s offenses were part of the same criminal episode.
             Id. at 846. Therefore, he could only get a maximum of fifty years for burglary, and a
             maximum of fifty-five years for the remaining offenses, for a total of 105 years. Id. at
             847.

      The case was remanded with instructions to sentence Fields for conspiracy
      to commit burglary as a class B felony and to impose a total sentence of no
      more than 105 years. Id.
             On October 12, 2005, a re-sentencing hearing was held. During the
      hearing, the trial court stated that “criminal history is an aggravating
      circumstance here to sentence the defendant beyond the presumptive or
      advisory sentence and with the way that he treated Mr. and Mrs. Pohlgeers
      and also ... he is a predator.” Re-sentencing Tr. at 21. In its re-sentencing
      order, the trial court cited Fields’s record of criminal activity and violence
      as aggravating circumstances and his entering a plea agreement as a
      mitigating circumstance. The trial court sentenced Fields to fifty years for
      attempted robbery, fifty years for burglary, and five years for conspiracy to
      commit burglary, for an aggregate sentence of 105 years executed.


Fields v. State, 852 N.E.2d 1030, 1031-32 (Ind. Ct. App. 2006).


                                                    3
       Following resentencing, Fields again appealed, challenging the severity and

appropriateness of his new sentence, and we affirmed. Id. at 1034. In 2009, Fields filed

a pro se petition for post-conviction relief, and in 2012, he filed an amended petition for

post-conviction relief. In November 2012, the post-conviction court held a hearing on

Fields’s petition, at which Fields’s trial attorney, Frank Cardis, was the sole witness. In

December 2012, the post-conviction court issued findings of fact and conclusions of law

and denied Fields’s petition. This appeal followed.

                                 Discussion and Decision

                                  I. Standard of Review

       To prevail on appeal from the denial of post-conviction relief, the petitioner must

show that the evidence is without conflict and leads unerringly and unmistakably to a

conclusion opposite that reached by the post-conviction court. Thacker v. State, 715

N.E.2d 1281, 1284 (Ind. Ct. App. 1999), trans. denied.         A post-conviction court’s

findings and judgment will be reversed only upon a showing of clear error, which is error

that leaves us with a definite and firm conviction that a mistake has been made.

Benefield v. State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011). We accept the post-

conviction court’s findings of fact unless they are clearly erroneous, but we do not defer

to the post-conviction court’s conclusions of law. Id. We examine only the probative

evidence and reasonable inferences that support the post-conviction court’s determination

and we do not reweigh the evidence or judge the credibility of the witnesses. Conner v.

State, 711 N.E.2d 1238, 1245 (Ind. 1999), cert. denied, 531 U.S. 829 (2000).

       We review claims of ineffective assistance of counsel under the two prong test set

forth in Strickland v. Washington, 466 U.S. 668 (1984). Bieghler v. State, 690 N.E.2d
                                            4
188, 192 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998). To prevail on a claim of

ineffective assistance of counsel, the petitioner must show that his counsel’s performance

was deficient and that the lack of reasonable representation prejudiced him. Randolph v.

State, 802 N.E.2d 1008, 1013 (Ind. Ct. App. 2004), trans. denied. To satisfy the first

prong, the petitioner must show that counsel’s performance was deficient in that

counsel’s representation fell below an objective standard of reasonableness and that

counsel committed errors so serious that petitioner did not have the “counsel” guaranteed

by the Sixth Amendment. Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). To show

prejudice, the petitioner must show a reasonable probability that, but for counsel’s errors,

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

probability sufficient to undermine confidence in the outcome.         Pruitt v. State, 903

N.E.2d 899, 906 (Ind. 2009).

       Under this standard, judicial scrutiny of counsel’s performance must be highly

deferential, and there is a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.       Bieghler, 690 N.E.2d at 193 (citing

Strickland, 466 U.S. at 689). Counsel is afforded considerable discretion in choosing

strategy and tactics and we will accord that decision deference. Randolph, 802 N.E.2d at

1013. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do

not necessarily render representation ineffective. Id.

       In a case such as this one, where the petitioner pleaded guilty, the two prongs

remain, but our supreme court has outlined what is required to show prejudice when there

was no trial. In all cases, the petitioner must demonstrate “a reasonable probability that

the hypothetical reasonable defendant would not have pled guilty and elected to go to
                                             5
trial if properly advised.” Segura v. State, 749 N.E.2d 496, 509 (Ind. 2001) (Sullivan, J.,

concurring in result). The petitioner must do more than simply allege that a plea would

not have been entered. Id. at 507. Where the alleged error is one that would have

affected a defense or is related to a failure to mitigate a penalty, the petitioner must show

that there would have been a reasonable probability of success at trial. Id. at 503, 507.

Where the alleged error is counsel’s omission or misdescription of penal consequences

that is relevant to both a plea and a conviction at trial, however, the bar is somewhat

lower.     In those cases, the petitioner must allege “‘special circumstances’ or . . .

‘objective facts’ supporting the conclusion that the decision to plead guilty was driven by

the erroneous advice.” Id. at 507 (citations omitted).

         Finally, we note that the two prongs of the Strickland test are separate and

independent inquiries. Therefore, if it is easier to dispose of an ineffectiveness claim on

the ground of lack of sufficient prejudice, we may determine the prejudice prong first

without inquiring into whether counsel’s performance was adequate.            Thacker, 715

N.E.2d at 1284.

                         II. Ineffective Assistance of Trial Counsel

         Fields argues that his trial counsel failed to provide him with effective assistance

in that counsel wrongly advised him as to the benefits of his plea agreement. Fields

argues that, had he gone to trial, he could not have been convicted of count V, aggravated

battery, or count VI, battery, on double jeopardy grounds; Fields further argues that even

if convicted of counts V and VI his sentence would not have been any greater than the

105-year sentence he is currently serving. He argues that he therefore received no benefit

from his plea and was ineffectively advised by his trial counsel.
                                              6
        Fields first argues that double jeopardy would have barred convictions for counts

V and VI—which were dropped under his plea agreement—had he gone to trial. Fields

contends that because injuries to Mr. Pohlgeers underlie both the aggravated battery of

count V and the serious bodily injury that elevated the attempted robbery charge to a

Class A felony, he could not have been convicted of both counts. Similarly, he argues

that because injuries to Mrs. Pohlgeers underlie the battery of count VI and the injury that

elevated the burglary charge to a Class A felony, he could not have been convicted of

both of those charges.1 The State counters that both of the Pohlgeerses sustained multiple

serious injuries such that they could have provided the factual basis for separate counts.

        Our supreme court has concluded that two offenses are the same offense for

double jeopardy purposes if, “with respect to either the statutory elements of the

challenged crimes or the actual evidence used to convict, the essential elements of one

challenged offense also establish the essential elements of another challenged offense.”

Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999) (emphasis in original). In analyzing

the statutory elements, the court looked to both the statute and the offense as charged. Id.

at 51-52. In our current case, the robbery statute applies to

        A person who knowingly or intentionally takes property from another
        person or from the presence of another person:
                (1) by using or threatening the use of force on any person; or
                (2) by putting any person in fear;
        . . . . However, the offense is . . . a Class A felony if it results in serious
        bodily injury to any person other than a defendant.




        1
            He also argues that he could not have been convicted of count VI because he did not hit Mrs. Pohlgeers,
and for support he cites to the facts in our earlier opinion. However, the record—both the factual basis supplied by
the State at his plea hearing, as well as the testimony of a detective at his original sentencing—indicate otherwise.
Moreover, we were not analyzing counts V or VI in either of our earlier opinions.
                                                         7
Ind. Code § 35-42-5-1.2 An amended charging information alleged that Fields, while

acting with the culpability required for robbery, took a substantial step toward

commission of the crime when he:

        did knowingly attempt to take property from the person of Larry Pohlgeers,
        by using the use of force on Larry Pohlgeers and in so doing struck Larry
        Pohlgeers with a pipe and searched a dresser drawer looking for property of
        Pohlgeers and said acts resulted in serious bodily injury to Larry Pohlgeers,
        to-wit: pain, multiple contusions, and/or lacerations.

Exhibits at 11.3 The statute for the dropped charge in count V, aggravated battery,

requires that a person “knowingly or intentionally inflict[] injury on a person that creates

a substantial risk of death or causes: (1) serious permanent disfigurement; [or] (2)

protracted loss or impairment of the function of a bodily member or organ . . . .” Ind.

Code § 35-42-2-1.5.            The amended charging information alleged that Fields “did

knowingly inflict injury on a person, to wit: repeatedly struck Larry Pohlgeers in the head

with a pipe, that created a substantial risk of death and/or caused serious permanent

disfigurement to Larry Pohlgeers.” Exh. at 12. At the statutory elements level therefore,

attempted robbery and aggravated battery are not the same offense, in that aggravated

battery requires that the injury be inflicted knowingly; and in this particular case there

were enough injuries sustained that the State could hypothetically have used different

injuries to support the two different charges.                    See Richardson, 717 N.E.2d at 51

(“Although the State may choose to do so, it is not required to include detailed factual

allegations in the charging instrument.”) (emphasis in original). A similar analysis leads
        2
           Fields was charged with attempted robbery. Our attempt statute provides that an attempt to commit a
crime occurs when a person, “acting with the culpability required for commission of the crime . . . engages in
conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a
felony or misdemeanor of the same class as the crime attempted.” Ind. Code § 35-41-5-1.
         3
           The record does not contain the original information, but only an amended information to which the State
objected at the post-conviction relief hearing because it was uncertified.
                                                        8
to the conclusion that count III, burglary, and count VI, battery, are not the “same

offense” under a statutory elements analysis.

       The heart of Field’s argument goes to the actual evidence test. Fields argues that

he “did not commit ‘multiple acts of violence’ against Larry,” but rather “struck Larry

multiple times in one act” and therefore the “single act” could not form the basis for both

counts I and V. Reply Brief of Appellant at 3. However, under the actual evidence test,

“the actual evidence presented at trial is examined to determine whether each challenged

offense was established by separate and distinct facts.” Richardson, 717 N.E.2d at 53.

Here, there was no trial and thus no actual evidence presented. We cannot speculate as to

what evidence might have been introduced had there been a trial. Without a trial, the

record is too thin to determine how protracted the beating may have been, which injuries

were sustained when and how, and in essence whether the evidence would be too

overlapping to sustain the dismissed counts.

       Fields also contends that even if he were convicted of counts V and VI, he could

not have been sentenced to additional consecutive time under Indiana Code section 35-

50-1-2, which addresses consecutive and concurrent sentences.           However, count V,

aggravated battery, is listed as a “crime of violence” under Indiana Code section 35-50-1-

2(a) and thus is exempt from the statutory cap on consecutive sentences. Had Fields been

convicted of count V, he could have been sentenced up to an additional twenty

consecutive years. See Ind. Code § 35-50-2-5 (sentencing range for Class B felonies).

       At the post-conviction relief hearing, Fields’s trial attorney, Frank Cardis, testified

about the advice he gave Fields regarding the plea agreement. Cardis testified that at the

time they were facing trial, Fields had confessed his involvement to the police, had taken
                                               9
the police to recover evidence against him, each of his co-defendants intended to

implicate Fields, the victims were ready to testify against him, and if the case had gone to

trial he believed Fields would have been found guilty. He further testified that accepting

the plea offer would open up several possible mitigating factors that would not have been

available had Fields been found guilty following a trial, such as consideration of the

acceptance of a plea, Fields’s remorse, and Fields’s assistance of the police. Because of

the overwhelming evidence of Fields’s guilt, Cardis believed that his best option was to

accept the plea agreement. Cardis testified that he did originally believe that Fields’s

maximum sentence would be 150 years if he accepted the plea offer. The State pointed

out at the hearing that, in fact, the trial court also believed the maximum was 150 years as

that is what he was sentenced to prior to appeal. Cardis agreed that it was a somewhat

complex question of law as to what Fields’s maximum sentence might be. Overall, his

strategy was that Fields would be better positioned to argue for a lesser sentence if he

accepted the plea agreement.

       Given all of the above, we cannot say that the evidence leads unerringly and

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

has not demonstrated a reasonable probability that the hypothetical reasonable defendant

would not have pleaded guilty and would have elected to go to trial if differently advised,

and we cannot say that Fields was denied the effective assistance of his trial counsel.

Even though Cardis was wrong about the 150 year maximum sentence, Fields received

the reduced sentence on appeal, and maintained dismissal of counts V and VI and the

ability to argue for mitigation. Had Fields gone to trial, even if he had not ultimately

been convicted on counts V and VI, his strategy for leniency would have been limited.
                                            10
                                      Conclusion

      Concluding that Fields was not denied the effective assistance of his trial counsel,

we affirm.

      Affirmed.

RILEY, J., and KIRSCH, J., concur.




                                           11
