MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
                                                                          Jan 02 2020, 8:45 am
regarded as precedent or cited before any
court except for the purpose of establishing                                   CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Ray O. Crowell, Jr.                                      Curtis T. Hill, Jr.
New Castle, Indiana                                      Attorney General of Indiana
                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ray O. Crowell, Jr.,                                     January 2, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-PC-1360
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable David Zent, Judge
Appellee-Respondent.                                     Trial Court Cause No.
                                                         02D05-1702-PC-15



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-1360 | January 2, 2020                    Page 1 of 14
                                                 Case Summary
[1]   Ray O. Crowell, Jr., pro se, appeals the post-conviction court’s (“PC Court”)

      denial of his petition for post-conviction relief (“PCR”). We affirm.


                                                        Issues
[2]   Crowell raises four issues on appeal, which we consolidate and restate as

      follows:


                 I.       Whether the PC Court erred in finding that Crowell did
                          not receive ineffective assistance of trial counsel.


                 II.      Whether Crowell’s trial counsel had a conflict of interest.


                 III.     Whether the PC Court erred in declining to conduct an
                          evidentiary hearing on Crowell’s petition for PCR.


                                                         Facts
[3]   On September 28, 2015, the State charged Crowell with Counts I-IV, child

      molesting, Class A felonies; Counts V-VIII, sexual misconduct with a minor,

      Class B felonies; Counts IX-XI, incest, Class C felonies; Count XII, child

      molesting, a Class C felony; and Count XIII, sexual misconduct with a minor, a

      Class C felony. 1 Attorney Quinton Ellis served as Crowell’s trial counsel.




      1
          On February 18, 2015, the State amended Count XI to incest, a Level 5 felony.


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1360 | January 2, 2020     Page 2 of 14
[4]   At a hearing on miscellaneous motions on February 16, 2016, Crowell moved

      to terminate his court-appointed lawyer, Attorney Ellis. Crowell asserted that

      Attorney Ellis misled Crowell by indicating that Crowell’s family members

      intended to cooperate with the State; and, thereby, improperly sought to

      “sway” Crowell “to take a plea.” Crowell’s App. Vol. II p. 19. The trial court

      questioned Attorney Ellis on the record and denied Crowell’s motion.


[5]   On February 22, 2016, Crowell pleaded guilty to Counts I, V, and IX. He was

      sentenced to: Count I, thirty years, with twenty-four years executed in the

      Department of Correction (“DOC”) and six years suspended; Count V, twenty

      years executed; and Count IX, eight years executed, 2 with Counts V and IX to

      be served concurrently with Count I. Crowell did not appeal his sentence.


[6]   On February 3, 2017, Crowell, pro se, 3 filed a petition for PCR in which he

      alleged that Attorney Ellis rendered ineffective assistance of trial counsel. On

      June 11, 2018, the State moved to require Crowell to submit his PCR case by

      affidavit pursuant to Indiana Post-Conviction Rule 1(9)(b). The PC Court

      granted the motion the following day. Crowell unsuccessfully moved for an

      evidentiary hearing on his petition for PCR on June 25, 2018.




      2
          In exchange for Crowell’s plea, the State agreed to dismiss Counts II-IV, VI-VIII, and X-XIII.
      3
       Crowell was briefly represented by counsel after he filed his petition for PCR; however, counsel withdrew
      on May 25, 2018.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1360 | January 2, 2020                      Page 3 of 14
[7]   On August 28, 2018, Crowell requested a hearing regarding the alleged conflict

      of interest. On August 31, 2018, Crowell, pro se, amended his petition for PCR

      and alleged further that: (1) a conflict of interest existed between himself and

      Attorney Ellis; (2) Attorney Ellis failed to fully investigate witnesses and

      evidence; and (3) Attorney Ellis failed to recognize that Counts V-VIII and XII-

      XIII were time-barred pursuant to the then-applicable statute of limitations.


[8]   On September 4, 2018, Crowell submitted his PCR case upon affidavit and

      requested the issuance of subpoenas to his ex-wife, son, and Attorney Ellis. On

      October 1, 2018, the PC Court denied Crowell’s motion to set a hearing

      regarding the alleged conflict of interest. On December 7, 2018, the State filed

      its response to Crowell’s PCR submission by affidavit. On May 30, 2019, the

      PC Court issued findings of fact and conclusions of law and denied Crowell’s

      petition for PCR. Crowell now appeals.


                                                   Analysis
[9]   Crowell appeals the denial of his petition for PCR. Post-conviction proceedings

      are civil proceedings in which a petitioner may present limited collateral

      challenges to a conviction and sentence. Gibson v. State, 133 N.E.3d 673, 681

      (Ind. 2019); Ind. Post-Conviction Rule 1(1)(b). The petitioner bears the burden

      of establishing his claims by a preponderance of the evidence. Gibson, 133

      N.E.3d at 681; P-C.R. 1(5). When, as here, the petitioner appeals from a

      negative judgment denying post-conviction relief, he “must establish that the

      evidence, as a whole, unmistakably and unerringly points to a conclusion

      contrary to the post-conviction court’s decision.” Gibson, 133 N.E.3d at 681.
      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1360 | January 2, 2020   Page 4 of 14
       When a petitioner fails to meet this “rigorous standard of review,” we will

       affirm the post-conviction court’s denial of relief. Id. Under this standard of

       review, “[we] will disturb a post-conviction court’s decision as being contrary to

       law only where the evidence is without conflict and leads to but one conclusion,

       and the post-conviction court has reached the opposite conclusion.” Pruitt v.

       State, 903 N.E.2d 899, 905 (Ind. 2009).


                               I.       Ineffective Assistance of Trial Counsel

[10]   Crowell argues that Attorney Ellis rendered ineffective assistance of trial

       counsel. To prevail on a claim of ineffective assistance of counsel, a petitioner

       must demonstrate both that: (1) his or her counsel’s performance was deficient,

       and (2) the petitioner was prejudiced by the deficient performance. Ben-Yisrayl

       v. State, 729 N.E.2d 102, 106 (Ind. 2000) (citing Strickland v. Washington, 466

       U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), reh’g denied, cert. denied, 534 U.S.

       830, 122 S. Ct. 73 (2001).


[11]   An attorney’s performance is deficient if it falls below an objective standard of

       reasonableness based on prevailing professional norms. Woodson v. State, 961

       N.E.2d 1035, 1041 (Ind. Ct. App. 2012), trans denied. A strong presumption

       arises that counsel rendered adequate assistance and made all significant

       decisions in the exercise of reasonable professional judgment. McCullough v.

       State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012), trans. denied. “[A] defendant

       must offer strong and convincing evidence to overcome this presumption.” Id.

       Isolated poor strategy, inexperience, or bad tactics does not necessarily

       constitute ineffective assistance of counsel. Id.
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1360 | January 2, 2020   Page 5 of 14
[12]   In analyzing prejudice in the context of a guilty plea, we review such ineffective

       assistance of counsel claims under Bobadilla v. State, 117 N.E.3d 1272, 1287

       (Ind. 2019). “[T]he prejudice inquiry is a subjective test, turning upon whether

       that particular defendant’s special circumstances support his claim that, had he

       been properly advised, he would have rejected the plea and insisted on going to

       trial.” Bobadilla, 117 N.E.3d at 1287. “[T]he ultimate result at trial (conviction

       versus acquittal) is not the determinative factor in these prejudice inquiries . . .

       .” Id.


[13]   Crowell argues that Attorney Ellis rendered ineffective assistance by failing to

       assert a statute of limitations defense regarding the time-barred offenses brought

       by the State. Crowell argues that Attorney Ellis, thus, negotiated from a

       position of diminished power and prejudiced Crowell by allowing Crowell to

       execute an unnecessarily harsh plea agreement.


[14]   Here, the PC Court made the following pertinent findings:


                6. . . . Mr. Crowell has identified a genuine illusory threat in the
                form of the filing of Counts 5, 6, 7, 8, 12, and 13, which were
                time-barred. It appears that these counts may have been
                considered to be timely filed in September 2015 pursuant to the
                version of IC 35-41-4-2 in effect at the time of filing, which
                provided that a prosecution for a sex offense against a child such
                as those charged in those counts “is barred unless commenced
                within ten (10) years after the commission of the offense, or
                within four (4) years after the person ceases to be a dependent of
                the person alleged to have committed the offense, whichever
                occurs later.” IC 35-41-4-2(m) (2015). However, the offenses
                charged in those counts (i.e., sexual misconduct with a minor as
                Class B and C felonies, and child molesting as a Class C felony)
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1360 | January 2, 2020   Page 6 of 14
        were alleged to have occurred no later than 2007 [Findings of
        Fact, ¶ 5], and IC 35-41-4-2(m) was not enacted until 2013. In
        2007, the statutory limitation period for filing those charges was
        five (5) years [IC 35-41-4-2(a)], not extended by any other
        provision of IC 35-41-4-2. By the time of filing of those charges,
        therefore, the statute of limitations that was in effect at the time
        of the offenses had run. Pursuant to the United States Supreme
        Court’s ruling in Stogner v. California, 539 U.S. 607, 609 (2003), as
        the prosecution of those charges had already become time-barred
        before the enactment of IC 35-41-4-2(m), the later enactment of
        that statute could not resurrect the State’s ability to prosecute
        them.


        7. Nevertheless, Mr. Crowell presents no argument to the effect that he
        would seriously have decided to go to trial and risk receiving an extremely
        long aggregate sentence on Counts 1, 2, 3, 4, 9, 10, and 11, rather than
        accept the plea agreement which provided for a much shorter aggregate
        sentence—and no credible argument to that effect can be imagined. Mr.
        Crowell was charged with Class A felonies in Counts 1, 2, 3, and
        4; a Class C felony in Count 9; and Level 5 felonies in Counts 10
        and 11. Under the law in effect at the time of the offenses, a
        Class A felony was punishable by imprisonment of 20 to 50
        years, with the presumptive or advisory sentence being 30 years.
        IC 35-50-24 (1995, 2005, 2014). A Class C felony was
        punishable by imprisonment of 2 to 8 years, with the advisory
        sentence being 4 years. 1C 35-50-2-6 (2005). A Level 5 felony
        was punishable by imprisonment of 1 to 6 years, with the
        advisory sentence being 3 years. IC 35-50-2-6(b) (2014). Mr.
        Crowell thus faced a maximum aggregate sentence of two hundred twenty
        (220) years on Counts 1, 2, 3, 4, 9, 10, and 11; consecutive presumptive
        or advisory sentences on those counts would have amounted to one
        hundred thirty (130) years; and even consecutive minimum sentences
        would have amounted to eighty-six (86) years. Assuming day-for-day
        good-time credit under the credit-time law in effect as to Counts
        1, 2, 3, 4, and 9 (and disregarding any minor increase in actual
        time resulting from the revised credit-time law applicable to

Court of Appeals of Indiana | Memorandum Decision 19A-PC-1360 | January 2, 2020   Page 7 of 14
               Counts 10 and 11), Mr. Crowell’s sentencing exposure in terms of
               actual time was from forty-three (43) to one hundred ten (110) actual
               years, compared to the executed portion of only twelve (12) years of actual
               time that would result from the plea agreement. In view of the great
               length and severity of Mr. Crowell’s course of abusive conduct as
               described by the victim at sentencing, it cannot be imagined that
               concurrent sentences would have been found appropriate in any event.
               The plea agreement thus saved Mr. Crowell at least 31 years, and
               possibly up to 98 years, of actual time, even with maximum good-time
               credit. This benefit is significantly greater than the saving of 23 to
               24 years found to be a “very substantial benefit” in Suarez [v.
               State], 967 N.E.2d [552] at 557 [(Ind. Ct. App. 2012)]. Like
               petitioner Suarez in that case, Mr. Crowell has shown no obvious
               weaknesses in the State’s case; unlike Suarez, Mr. Crowell has
               shown no special circumstances that would have affected a
               reasonable person’s decision to plead guilty. The Court cannot
               conclude that Mr. Crowell’s decision to plead guilty would have
               been affected by the knowledge that he faced a maximum
               sentence of no more than 220 years in the absence of a plea
               agreement providing for an executed portion of 24 years. Like
               Suarez, Mr. Crowell has not shown that he was prejudiced by his
               attorney’s failure to give him accurate advice, and he is not
               entitled to post-conviction relief on this basis.


       Crowell’s App. Vol. II pp. 23-25 (citations omitted) (emphasis added).


[15]   Although Crowell states that he would have rejected the plea agreement and

       proceeded to trial, Crowell has advanced no special circumstances to support

       his claim that, had Attorney Ellis advised him differently, Crowell would have

       rejected the plea agreement as to the non-time-barred counts, which presented a

       potential aggregate sentence of 220 years. In light of the foregoing, the PC

       Court did not err in denying Crowell’s claim of ineffective assistance of trial

       counsel.
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1360 | January 2, 2020   Page 8 of 14
                                            II. Conflict of Interest

[16]   Next, we address the PC Court’s rejection of Crowell’s claim that a conflict of

       interest existed between Crowell and trial counsel. Specifically, Crowell

       maintains that Attorney Ellis “tried to lead Crowell to believe” that Crowell’s

       ex-wife and son intended to cooperate with the State, “while [Attorney Ellis]

       push[ed] for Crowell to enter the plea.” Crowell’s Br. p. 12.


[17]   The constitutional right to effective assistance of counsel includes

       representation free from conflicts of interests. Gibson v. State, 133 N.E.3d 673,

       698 (Ind. 2019) (citing Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct.

       1097, 1103 (1981). To prevail on a claim of conflict of interest, the defendant

       must demonstrate to the PC Court that trial counsel had an

       actual conflict of interest and that the conflict adversely affected counsel’s

       performance.        Shepherd v. State, 924 N.E.2d 1274, 1287 (Ind. Ct.

       App. 2010), trans. denied.


               An adverse effect on performance caused by counsel’s failure to
               act requires a showing of (1) a plausible strategy or tactic that was
               not followed but might have been pursued; and (2) an
               inconsistency between that strategy or tactic and counsel’s other
               loyalties, or that the alternate strategy or tactic was not
               undertaken due to the conflict.


       Id.


[18]   Crowell has presented no evidence that Attorney Ellis had an actual conflict of

       interest or that the alleged conflict adversely affected Attorney Ellis’


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1360 | January 2, 2020   Page 9 of 14
       performance. Under questioning of the trial court below, Attorney Ellis denied

       any conflict of interest and stated that he merely recounted to Crowell

       information that Attorney Ellis gleaned from discussions with the State. Even

       assuming arguendo that a conflict of interest existed—and we find no such

       support in the record—it remains Crowell’s burden to: (1) identify a plausible

       strategy (or tactic) that Attorney Ellis neglected in Attorney Ellis’ representation

       of Crowell; and (2) demonstrate either an inconsistency between the plausible

       strategy (or tactic) and Attorney Ellis’ purported loyalties to the State or that

       Attorney Ellis eschewed certain acts in his representation of Crowell because of

       Attorney Ellis’ purported loyalties to the State. Crowell has presented no such

       argument and, accordingly, his claim must fail. 4


[19]   Moreover, even if a petitioner demonstrates an actual conflict that adversely

       affected counsel’s performance, we must still determine whether prejudice

       exists. In Gibson, our Supreme Court considered whether the defendant is

       required to show prejudice in a conflict-of-interest claim or whether such

       prejudice is presumed. See Gibson, 133 N.E.3d at 698-99 (comparing the

       presumption of prejudice standard in Cuyler v. Sullivan, 446 U.S. 335, 349-50,

       100 S. Ct. 1708, 1719 (1980), with the prejudice standard in Strickland). The

       Court noted that conflict-of-interest claims typically arise where counsel

       represented multiple defendants in the same case, “because of counsel’s



       4
         We need not reach Crowell’s claim that the PC Court erred in failing to conduct an evidentiary hearing on
       the alleged conflict of interest, as Crowell has failed to meet his threshold burden of establishing that any
       conflict of interest existed.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1360 | January 2, 2020                  Page 10 of 14
       representation of a hostile witness, because of counsel’s personal legal

       problems, or because of counsel’s previous role as judge pro tempore in the

       same case.” Id. at 699.


               Not all conflicts of interest, however, present the same concerns.
               Unlike the high risk of harm imposed on at least one client in
               multiple-representation cases, a conflict implicating counsel’s
               personal interests only (e.g., media rights or future referrals) need
               not compromise the duty of loyalty—that is, counsel may still act
               in the client’s best interest even if detrimental to counsel’s best
               interest. So, the question is whether a particular conflict-of-
               interest claim warrants application of the lower burden
               under Cuyler or the traditional prejudice standard
               under Strickland.


       Id. The Court concluded that Gibson’s conflict of interest argument fell under

       the standard Strickland analysis for prejudice. Id.


[20]   Like Gibson, who argued that his trial counsel proceeded under a conflict of

       interest, Crowell maintains that Attorney Ellis’ loyalties were divided and

       aligned with the State’s interests. We conclude that Crowell’s conflict of

       interest argument falls under the standard Strickland analysis for prejudice.

       Crowell has failed to identify any prejudice that resulted from the

       alleged conflict of interest. The PC Court’s denial of this claim is not clearly

       erroneous.


                                  III. Failure to Conduct PCR Hearing

[21]   Crowell argues further that the PC Court abused its discretion when it did not

       conduct an evidentiary hearing on his PCR claims and, instead, ordered the

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1360 | January 2, 2020   Page 11 of 14
       parties to submit their respective cases by affidavit. We review a PC Court’s

       decision to forgo an evidentiary hearing for an abuse of discretion. Smith v.

       State, 822 N.E.2d 193, 201 (Ind. Ct. App. 2005), trans. denied. “An abuse of

       discretion occurs if the decision is clearly against the logic and effect of the facts

       and circumstances before the court, or the reasonable, probable, or actual

       deductions to be drawn therefrom.” McElfresh v. State, 51 N.E.3d 103, 107 (Ind.

       2016).


[22]   Post-Conviction Rule 1(9)(b) provides, in part:


                In the event petitioner elects to proceed pro se, the court at its
                discretion may order the cause submitted upon affidavit. It need
                not order the personal presence of the petitioner unless his
                presence is required for a full and fair determination of the issues
                raised at an evidentiary hearing.


       Post-Conviction Rule 1(9), thus, “[provides a] distinct way for a PCR court to

       rule on a petition without an evidentiary hearing.” Smith, 822 N.E.2d at 201.


                . . . [W]here the PCR court orders the parties to proceed by
                affidavit under Rule 1(9)(b), the court may also determine that
                the petitioner’s personal presence at an evidentiary hearing is
                required. But we hold that the decision whether to hold an
                evidentiary hearing for a ‘full and fair determination of the issues
                raised,’ like the decision to proceed by affidavit, is best left to the
                PCR court’s discretion.


       Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1360 | January 2, 2020   Page 12 of 14
[23]   In Smith, Smith filed a pro se petition for PCR, and the PC Court ordered that

       the PCR case should be submitted upon affidavit. Smith unsuccessfully moved

       for an evidentiary hearing, which was denied. Smith also filed an affidavit in

       support of his petition for PCR. In appealing the denial of his petition for PCR,

       Smith argued on appeal the PC Court erred in declining to conduct the

       evidentiary hearing. We affirmed on appeal and found:


               [O]ther than claiming that the affidavits he and the State
               submitted raised issues of fact, Smith has failed to show how an
               evidentiary hearing could have aided him. Rather, he had made
               general assertions that he was denied an opportunity to present
               unidentified witnesses in support of his ineffective assistance of
               counsel claim. If Smith believed that there were witnesses to
               support his claims, he could have either submitted affidavits from
               those witnesses or followed the procedure set forth under Rule
               1(9)(b) and requested that such witnesses be subpoenaed. We
               therefore conclude that the PCR court did not abuse its discretion
               when it did not hold an evidentiary hearing on Smith’s petition.


       Id. at 201-02.


[24]   Here, Crowell filed his pro se petition for PCR, and the State moved for

       submission of the PCR case by affidavit, which the PC Court granted. Crowell

       subsequently moved for an evidentiary hearing on his petition for PCR to elicit

       testimony from his ex-wife, his son, and Attorney Ellis regarding the alleged

       conflict of interest; however, the PC Court denied the motion without hearing.

       On September 4, 2018, Crowell submitted his PCR case by affidavit; requested

       the issuance of subpoenas to his ex-wife and son; and moved for an evidentiary

       hearing. The PC Court declined to issue Crowell’s requested subpoenas.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1360 | January 2, 2020   Page 13 of 14
       Despite his longstanding contention that his ex-wife and son were vital

       witnesses, Crowell did not include affidavits from his ex-wife and son in his

       submission of his PCR case.


[25]   As in Smith, Crowell has not demonstrated that an evidentiary hearing would

       have aided him. Although Rule 1(9)(b) allowed Crowell to submit affidavits of

       his desired witnesses, Crowell failed to do so. See id. at 201 (“If Smith believed

       that there were witnesses to support his claims, he could have [ ] submitted

       affidavits from those witnesses . . . .”). Crowell has not demonstrated that the

       PC Court improperly deviated from the procedure enumerated in Post-

       Conviction Rule 1(9)(b).


[26]   Based on the foregoing, Crowell cannot demonstrate that the PC Court abused

       its discretion when it declined—after it ordered the PCR case to be submitted

       upon affidavit—to conduct an evidentiary hearing. The evidence before us is

       not clearly against the logic and effect of the facts and circumstances before the

       PC Court; accordingly, we find no abuse of discretion.


                                                 Conclusion
[27]   The PC Court’s denial of Crowell’s petition for PCR is not clearly erroneous.

       We affirm.


[28]   Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1360 | January 2, 2020   Page 14 of 14
