Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                         Aug 22 2014, 8:58 am
any court except for the purpose of
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

BORAHM KIM                                          ANGELA N. SANCHEZ
Deputy Public Defender                              Deputy Attorney General
Indianapolis, Indiana                               Indianapolis,Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

COREY A. CRAIG,                                     )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )      No. 48A04-1311-PC-568
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )


                     APPEAL FROM THE MADISON CIRCUIT COURT
                         The Honorable Angela Warner Sims, Judge
                              Cause No. 48C01-1008-PC-308


                                         August 22, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

SHARPNACK, Senior Judge
                                   STATEMENT OF THE CASE

          Corey A. Craig appeals from the post-conviction court’s order denying his petition

for post-conviction relief, contending that his trial counsel was ineffective and that he was

prejudiced by that inadequate representation. We affirm.

                                             ISSUES

          Craig presents the following issues for our review:

          I.     Whether there was a sufficient factual basis for his plea of guilty to
                 intimidation as a Class C felony;

          II.    Whether his guilty plea was knowingly, intelligently, and voluntarily made;
                 and

          III.   Whether the post-conviction court erred by denying Craig’s petition for post-
                 conviction relief alleging ineffective assistance of trial counsel.

                                 FACTS AND PROCEDURAL HISTORY

          Without the benefit of a plea agreement, Craig pleaded guilty to child molesting1 as

a Class A felony, criminal confinement2 as a Class B felony, and intimidation3 as a Class

C felony. The facts set forth in our memorandum opinion affirming Craig’s sentence on

direct appeal are as follows:

                 On March 8, 2004, officers from the Anderson Police Department
          were dispatched to Saint John’s Hospital in reference to a six-year-old child,
          F.N., being treated for vaginal injuries. F.N. had been taken to the hospital
          with injuries and bleeding to her vaginal area. These injuries required
          emergency surgery. Initial information revealed F.N. was home with Craig
          and Darrel Gene Bradberry and received a straddle-type injury while playing
          with Craig and Bradberry. After the emergency surgery, the cut was found

1
    Ind. Code § 35-42-4-3(a)(2) (1998).
2
    Ind. Code § 35-42-3-3(b)(2)(A) (2002).
3
    Ind. Code § 35-45-2-1(b)(2)(A) (2003).

                                                2
       to be larger than doctors originally believed. Further, F.N.’s doctors
       indicated to police that the injuries were not consistent with a straddle-type
       injury, but, rather, more consistent with a cutting-type injury.
               F.N. was interviewed. She initially gave an account consistent with
       the reported straddle-type injury. Upon further inquiry, however, she
       indicated that Craig and Bradberry had held her down at the house while both
       of them had a knife and one of them had a fork. While restraining the child,
       the young men proceeded to insert a knife and fork into her vagina causing
       her injury and bleeding. They then threatened F.N. that if she said anything
       about what had happened they would put her in a large grill that was outside
       the residence and feed her to a large dog that was at the residence.

Craig v. State, No. 48A02-0511-CR-1030, slip op. at 2-3 (Ind. Ct. App. April 28, 2006).

The trial court sentenced Craig to the presumptive sentence for each of the offenses: thirty

years, ten years, and four years, respectively. The trial court ordered the sentences for child

molesting and criminal confinement to be served concurrently, and ordered the sentence

for intimidation to be served consecutively to the sentence for child molesting, for an

aggregate sentence of thirty-four years.

       After his sentence was affirmed on direct appeal, Craig filed a pro se petition for

post-conviction relief that was later amended by counsel on January 29, 2013. The post-

conviction court held a hearing on the petition after which it issued findings of fact and

conclusions thereon denying Craig’s petition. Craig now appeals.

                              DISCUSSION AND DECISION

       Craig appeals from the post-conviction court’s denial of his petition for post-

conviction relief. “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). The post-

conviction court’s denial of relief will be affirmed unless the petitioner shows that the

evidence “leads unerringly and unmistakably to a decision opposite that reached by the

                                              3
post-conviction court.” Rowe v. State, 915 N.E.2d 561, 564 (Ind. Ct. App. 2009), trans.

denied.     A petitioner has the burden of establishing the grounds for relief by a

preponderance of the evidence. Indiana Post-Conviction Rule 1(5). Accordingly, a

petitioner appeals from a negative judgment. Ritchie v. State, 875 N.E.2d 706, 714 (Ind.

2007).

         This court will not disturb the denial of relief unless the evidence is without conflict

and leads to but one conclusion, and the post-conviction court reached the opposite

conclusion. Carter v. State, 738 N.E.2d 665, 671 (Ind. 2000). Furthermore, this court

accepts the post-conviction court’s findings of fact unless they are clearly erroneous.

Bigler v. State, 732 N.E.2d 191, 194 (Ind. Ct. App. 2000), trans. denied. We consider only

the probative evidence and reasonable inferences therefrom that support the post-

conviction court’s determination, and we will not reweigh the evidence or judge witness

credibility. Id.

         In general, claims of ineffective assistance of counsel are reviewed under a two-part

test: (1) a demonstration that counsel’s performance fell below an objective standard of

reasonableness based on prevailing professional norms, and (2) a showing that the deficient

performance resulted in prejudice to the defendant. Grinstead v. State, 845 N.E.2d 1027,

1031 (Ind. 2006) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984)). Prejudice occurs when the defendant demonstrates that there is

a reasonable probability that, if not for counsel’s unprofessional errors, the result of the

proceeding would have been different. Grinstead, 845 N.E.2d at 1031. A reasonable

probability occurs when there is a probability sufficient to undermine confidence in the

                                                4
outcome. Id. Failure to satisfy either prong of the two-part test will cause the defendant’s

claim to fail. Henley v. State, 881 N.E.2d 639, 645 (Ind. 2008). If we can easily dispose

of an ineffective assistance claim based upon the prejudice prong, we may do so without

addressing whether counsel’s performance was deficient. Id.

       Each of Craig’s arguments originate from the difference between the statutory

enhancement language describing the elevated offense of intimidation as a Class C felony

and the language used in the charging information. Craig contends that had the charging

information language tracked the language of the intimidation statute, he would not have

pleaded guilty. Further, he claims that he could not be found guilty of intimidation as a

Class C felony because of the defective wording of the charge and that there was no factual

basis that he drew or used a fork or knife while intimidating F.N.

                      I.     ADEQUACY OF THE FACTUAL BASIS

       The version of the statute at the time of Craig’s offenses provides in pertinent part

as follows:

       A person who communicates a threat to another person, with the intent: that
       the other person engage in conduct against the other person’s will; commits
       intimidation, a Class A misdemeanor. However, the offense is a: Class C
       felony if, while committing it, the person draws or uses a deadly weapon.

Ind. Code § 35-45-2-1. Count III of the charging information against Craig alleged that he

had committed Class C felony intimidation by communicating “a threat to [F.N.] while

armed with a deadly weapon, to wit: a knife and/or fork, with the intent that [F.N.] engage

in conduct against her will, to wit: not to report a sexual assault.” Direct Appeal App. p.

25. Craig argues that the difference between “draws or uses a deadly weapon” and “while


                                             5
armed with a deadly weapon” is significant enough that his decision to plead guilty was

compromised because of his trial counsel’s failure to note the defect.

       The factual basis set forth by the State at Craig’s guilty plea hearing was as follows:

       More specifically, the State would present evidence to show that on March
       8th of 2004, officers from the Anderson Police Department were dispatched
       to Saint John’s Hospital reference a six-year-old child being treated for a
       vaginal injuries [sic]. Upon arrival the hospital staff indicated that [F.N.],
       date of birth 8-28 of ’97 had . . . she had been taken to the hospital with
       injuries and bleeding to her vagina area. Upon observation by doctors, it was
       determined that there was a cut in her vaginal area. These injuries required
       emergency surgery which was performed by a Doctor Gist. . . . The
       information given at the hospital and initially to the police were [sic] that
       [F.N.] was at the residence of 2121 Hendricks Street which was her home in
       Anderson, Madison County, Indiana. And at the time of the injuries she was
       home alone with the defendant, Corey A. Craig and a [D.B.] The information
       initially received was that the . . . Mr. Craig and [D.B.] were playing with
       [F.N.] and that she had injured her vaginal [sic] in a straddle-type injury,
       either at one point by pulling her legs a part and another point of the story
       was that she had fallen over a couch. After the emergency surgery was
       performed, the cut was larger than what they believed to begin with. Both
       the E.R. physician, Dr. Hanna and the surgeon, Dr. Gist, indicated to police
       that the injuries were not consistent with a straddle-type injury and that it was
       more consistent with a cutting type injury. [F.N. was interviewed. Initially
       she gave the same story that it was a straddle-type injury. However, upon
       interviewing her further, she did indicate that the defendants Corey A. Craig
       and [D.B.] had her held . . . held her down at the house and that both of them
       had a knife and one had a fork. Had inserted the knife and the fork into her
       vagina causing her injury and bleeding. She also indicated that the two
       individuals had threatened her that if she told about what had happened they
       had indicated that one, they would put her in a large grill that was outside the
       residence and they also indicated that they would feed her to a large dog that
       was at the residence. She was held down during this time when she was hurt
       while they had a knife and fork that injured her and her vagina, against her
       will. All these events occurred here in Madison County, State of Indiana.

Direct Appeal Tr. pp. 14-16 (emphasis added). After the factual basis was recited, Craig

indicated that he had heard the prosecutor’s statements and that they were true. All parties



                                              6
stated that they were satisfied with the factual basis and the trial court accepted Craig’s

guilty plea.

       The post-conviction court took judicial notice of the prior proceedings and the

filings, pleadings, and record in the case. Included among those items is the probable cause

affidavit supporting the charges filed against Craig. The probable cause affidavit provided

as follows:

       On 3/8/04, APD officers were dispatched to St. John’s Hospital at 2015
       Jackson St. reference a 6 year old child, [F.N.], being treated for vaginal
       injuries not consistent with those of an accident. These injuries required
       emergency surgery, which was performed by Dr. Gist. Both the ER
       physician, Dr. Hanna, and the surgeon, Dr. Gist, felt these injuries were not
       the result of an accident. The persons acting as caregiver to the child at the
       time of her injuries were Corey A[.] Craig and Darrel Gene Bradberry. The
       day following the victim’s surgery, she gave a video statement in which she
       advised that Corey Craig and Darrel Bradberry held her down and inserted a
       knife and fork into her vagina and threatened her with physical harm if she
       told anyone of the incident. The insertion of the foreign objects into her
       vagina caused pain and bleeding. Both suspects took steps to conceal the
       results of their actions. Both initially advised that the victim’s injuries had
       occurred while engaging in play, however Darrell [sic] Bradberry later
       provided a videotaped statement acknowledging that the acts had occurred,
       but that he was only an observer.

       Corey Alan Craig & Darrel Gene Bradberry, with a child under 14 years of
       age, performed deviate sexual conduct resulting in serious bodily injury by
       inserting foreign objects into the vagina of a 6 year old girl causing such
       injury as to require surgery. Corey Alan Craig & Darrel Gene Bradberry
       knowingly and intentionally confined the aforementioned victim by holding
       her down with her arms crossed on her chest and her legs pinned towards her
       head and refusing to allow her to leave during the assault. Both subjects
       threatened physical bodily harm to the victim and told her she would be taken
       from her mother if she told anyone. The threats were made while the subjects
       were holding the knife and fork, which could be perceived as deadly
       weapons.

Direct Appeal App. p. 23 (emphasis added).


                                             7
       During the hearing on Craig’s petition for post-conviction relief, Craig’s trial

counsel, Zaki Ali, testified that he did not realize that the wording of the statute defining

the offense differed from the language used in the charging information. He further stated

that his failure to challenge the defect was not part of a strategic decision. On cross

examination, however, he testified as follows with respect to the factual basis that the knife

and fork were drawn or used:

       I want to go back to your question earlier, if I may, and mention that, is there
       a difference between draws and uses? Yes. Um, draw would mean to flash,
       to show, to demonstrate. To use would actually, to put to use. In this case,
       um, it wasn’t drawn, it was actually used. The utensils. . . . I think they were
       shown and they were probably flashed.

Tr. p. 12. Thus, despite the defect, even Craig’s trial counsel appeared to agree that the

facts of the case fit within the statutory definition of the offense.

       In an opinion on rehearing in Hall v. State, 837 N.E.2d 159 (Ind. Ct. App. 2005), a

panel of this Court found that there was sufficient evidence to support a conviction for

intimidation as a Class C felony where the issue involved whether the defendant was in

actual possession of a weapon at the time the threat was communicated. We relied on our

Supreme Court’s opinion in Davis v. State, 477 N.E.2d 889 (Ind. 1985), analyzing the use

of the term “while” in the context of a murder eligible for the death penalty because it was

committed while committing the underlying felony of child molesting. We set forth the

following analysis from Davis:

       Although we have not previously considered [the word “while”] as it is used
       in the death penalty statute, we have repeatedly found that the phrase “while
       committing” denotes a continuing chain of events under our felony-murder
       statute. In other words, when there is a close proximity in terms of time and
       distance between the underlying felony and the homicide and there is no

                                               8
       break in the chain of events from the inception of the felony to the time of
       the homicide, we treat the two events as part of one continuous transaction.

Hall, 837 N.E.2d at 160 (quoting Davis, 477 N.E.2d at 894).

       Here, the factual basis clearly establishes the proximity in time and distance between

the child molesting and confinement involving the use of the knife and the fork and the

threat to put her on a large grill and feed her to a large dog at her home if she told anyone

about the incident. The probable cause affidavit supports a finding that the knife and fork

were in hand at the time the threat was made. Nonetheless, it is clear that they were used

at least immediately prior to the making of the threatening statements. Although the threat

did not specifically refer to the knife and the fork, their presence and prior use would at the

least make F.N. think that they would be used again. We cannot say that Craig has met his

burden of showing that the evidence is without conflict and leads to but one conclusion,

and the post-conviction court reached the opposite conclusion. The factual basis is

adequate to support the conviction despite the defect in the charging information.

                                     II. GUILTY PLEA

       Craig also argues that his guilty plea was not knowingly, intelligently, and

voluntarily made because he was misled by the State about the nature of the intimidation

charge. He claims that the language in the charging information did not specifically advise

him that a deadly weapon had to be drawn or used in order to enhance the offense to a

Class C felony.

       Indiana Code section 35-35-1-2(a)(1) (2003) provides that a trial court “shall not

accept a plea of guilty or guilty but mentally ill at the time of the crime without first


                                              9
determining that the defendant understands the nature of the charge against him.” A guilty

plea is not “voluntary in the sense that it constituted an intelligent admission that he

committed the offense unless the defendant received ‘real notice of the true nature of the

charge against him, the first and most universally recognized requirement of due process.’”

Henderson v. Morgan, 426 U.S. 637, 645, 96 S. Ct. 2253, 2257-58, 49 L. Ed. 2d 108 (1976)

(quoting Smith v. O’Grady, 312 U.S. 329, 334, 61 S. Ct. 572, 574, 85 L. Ed. 859 (1941)).

Our Supreme Court has held that unless an element of the offense is a critical element of

the offense, such as specific intent to kill is to the offense of attempted murder, notice of

the elements of the offense is not required in order to satisfy Henderson’s requirement of

notice of the true nature of the charge. Patton v. State, 810 N.E.2d 690, 697 (Ind. 2004).

What is required under Henderson is that (1) a defendant have real notice of the true nature

of the charge to which he pleads guilty, (2) the record of the guilty plea hearing contains

an explanation of the charge by the trial court or a representation by trial counsel that the

nature of the offense has been explained to the defendant, or absent an explanation a

presumption that trial counsel routinely explains the nature of the offense sufficiently to

give notice to the accused, (3) where intent is a critical element of the offense, notice of

the element is required, and (4) even where required notice has not been given nor can it

be presumed, that lack of notice is subject to analysis for harmless error. Id. at 696.

       Unlike specific intent in the context of attempted murder charges, the difference

between committing an offense while armed with a deadly weapon and while drawing or

using that deadly weapon is not so significant as to be a critical element of the offense. The



                                             10
trial court read the charging information and confirmed that Craig understood the charge.

The trial court further advised Craig as follows:

       So in order to be guilty of [intimidation] the State would have to prove on or
       about March the 8th you had done these things to little [F.N.] and you told
       her if she told anybody you were gonna hurt her or something like that. Do
       you understand . . . and plus you had this knife and fork or I don’t know
       which one you had. Maybe it’s both. Maybe it’s one or the other. Do you
       understand what I’m telling you?

Direct Appeal Tr. pp. 8-9. Craig responded that he understood. During the hearing on

Craig’s petition, Ali testified that in addition to the factual basis set forth by the State, Ali

and Craig went through the facts of the case and reviewed the discovery provided by the

State indicating what evidence supported the charges. Craig has not met his burden of

establishing that the post-conviction court erred by concluding that Craig’s guilty plea was

entered into knowingly, intelligently, and voluntarily.

                             II.     INEFFECTIVE ASSISTANCE

       Craig raises a claim of ineffective assistance of counsel, arguing that his trial

counsel’s failure to advise him of the defective wording of the intimidation charge

prejudiced him.

       When considering a claim of ineffective assistance of counsel, a “strong
       presumption arises that counsel rendered adequate assistance and made all
       significant decisions in the exercise of reasonable professional judgment.”
       Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). Evidence of isolated
       poor strategy, inexperience, or bad tactics will not support a claim of
       ineffective assistance of counsel. Clark v. State, 668 N.E.2d 1206, 1211 (Ind.
       1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S. Ct. 1438, 137 L. Ed.
       2d 545 (1997). As a result, most ineffective assistance claims can be resolved
       by a prejudice inquiry alone. Williams v. State, 706 N.E.2d 149, 154 (Ind.
       1999), reh’g denied, cert. denied, 529 U.S. 1113, 120 S. Ct. 1970, 146 L. Ed.
       2d 800 (2000). Moreover, if a petitioner is convicted pursuant to a guilty
       plea, and later claims that his counsel rendered ineffective assistance because

                                               11
       counsel overlooked or impaired a defense, the petitioner must show that a
       defense was indeed overlooked or impaired and that the defense would have
       likely changed the outcome of the proceeding. Segura v. State, 749 N.E.2d
       496, 499 (Ind. 2001).

Richardson v. State, 800 N.E.2d 639, 646 (Ind. Ct. App. 2003), trans. denied.

       Here, Craig’s argument is not that he would have insisted on proceeding to trial on

the intimidation charge had he known about the defect. Rather, he argues that had his

counsel advised him of the defective wording of the charge, he could only have been

convicted of intimidation as a Class D felony. We disagree.

       We have already concluded that the factual basis for intimidation as a Class C felony

was adequate to support Craig’s guilty plea. Therefore, Craig cannot establish prejudice

from his trial counsel’s failure to notice the defect and advise him. Furthermore, if Craig’s

trial counsel noticed the defect and brought that to the attention of the State or the trial

court, there is every reason to believe that the State would have corrected the information

to comport with the statutory language. Craig has not established that the post-conviction

court erred by finding and concluding that Craig was not prejudiced by his trial counsel’s

representation.

                                      CONCLUSION

       In light of the above, we affirm the post-conviction court’s decision.

       Affirmed.

RILEY, J., and BARNES, J., concur.




                                             12
