      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                      FILED
      regarded as precedent or cited before any                             Jul 13 2018, 10:20 am

      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.


      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Matthew J. McGovern                                       Curtis T. Hill, Jr.
      Anderson, Indiana                                         Attorney General of Indiana
                                                                Monika Prekopa Talbot
                                                                Supervising Deputy Attorney
                                                                General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Douglas Crawford,                                         July 13, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                32A05-1710-PC-2486
              v.                                                Appeal from the Hendricks
                                                                Superior Court
      State of Indiana,                                         The Honorable Robert W. Freese,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                32D01-1501-PC-1



      Mathias, Judge.


[1]   Douglas Crawford (“Douglas”) appeals the Hendricks Superior Court’s denial

      of his petition for post-conviction relief. Douglas argues his trial counsel was

      Court of Appeals of Indiana | Memorandum Decision 32A05-1710-PC-2486 | July 13, 2018           Page 1 of 13
      ineffective and alleges that 1) counsel failed to adequately advise Douglas

      regarding the benefits of the plea he rejected, and 2) counsel failed to present

      Douglas’s preferred defense.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On January 15, 2006, Caleb Stephenson (“Caleb”) and his pregnant wife,

      Samantha Stephenson (“Samantha”) invited Adam Squires (“Adam”), Ryan

      Vogel (“Ryan”), Waylon Cox (“Waylon”), William Cox (“William”) and

      brothers James (“James”) and Douglas Crawford (collectively, “the

      Crawfords”) over to their apartment. The group was watching television when

      James pulled out a gun from “under the table in the case where it was.” Ex.

      Vol. III, State’s Ex. 1, p. 21. After James loaded the gun, he yelled “get your

      fu**ing a**es on the ground.” Id. at 23. Ryan asked, “[A]re you serious?” and

      James responded, “[T]his isn’t a joke, I’ll blow your heads off, I’ll do this.” Id.

      Everyone got on the ground and “did everything [James] said.” Id.


[4]   The Crawfords proceeded to search everyone’s pockets and demanded money.

      They stated they “were just going to start shooting people until they got

      [money].” Id. at 28. As Douglas moved toward Samantha, she told Douglas to

      take her wedding rings and to leave. Douglas removed the rings from

      Samantha’s hand. Douglas also pulled a PlayStation 2 off of the wall, and

      James finished taking personal items from the other people in the apartment.

      Before they left the apartment, James opened the blinds, instructed everyone to

      Court of Appeals of Indiana | Memorandum Decision 32A05-1710-PC-2486 | July 13, 2018   Page 2 of 13
      remain on the floor for twenty minutes, and threatened to kill them if they

      failed to follow his instructions. Id. at 29. Ryan started to get up and lock the

      door, but James came back inside the apartment and said, “[T]hat’s a good way

      to get your fu**ing head blown off, you better stay on the ground.” Id.


[5]   After twenty minutes passed, Caleb called the police. Three officers arrived and

      questioned all of the victims. Within the next two weeks, each victim identified

      James and Douglas from a photographic line up.


[6]   Douglas was charged with six counts of Class B felony robbery, plus charges of

      criminal recklessness and theft, nineteen counts total, for the offenses

      committed on January 15, 2006. A bench trial was held on August 31, 2007,

      and the court found Douglas guilty of the six robbery counts and six theft

      counts and not guilty of the remaining charges. A sentencing hearing was held

      on September 27, 2007, and Douglas was sentenced to serve consecutive terms

      of ten years for each Class B felony robbery conviction, for a total of sixty years.

      See Appellant’s App. Vol. II, pp. 36–37. No direct appeal was ever filed.


[7]   On October 10, 2014, Douglas filed his petition for post-conviction relief

      arguing that he was denied effective assistance of counsel. At the post-

      conviction hearing held on September 18, 2015, Douglas’s trial counsel testified

      that he informed Douglas he was “looking at upwards of 120 years.” PCR Tr.

      p. 7. Counsel explained that the State offered a plea agreement providing that

      Douglas would plead guilty to “Count 1- Armed Robbery with the penalty as a

      Class B felony” and the remaining counts would be dismissed. Appellant’s App.


      Court of Appeals of Indiana | Memorandum Decision 32A05-1710-PC-2486 | July 13, 2018   Page 3 of 13
      Vol. III, p. 104. Trial counsel testified that he “advised [the Crawfords] that

      they were offered 17 years executed [ . . . ] and that [he] believe[d] it was in

      their best interest to take the plea,” but they rejected it. PCR Tr. p. 9.


[8]   During the post-conviction hearing, the Crawfords testified that they wanted

      trial counsel to argue that the entire occurrence was a fake robbery. James

      testified that “Caleb told me that he had owed some previous money and that

      he wanted to know if I would be willing to come back down there and pretend

      that I’m robbing the place and take the drugs and the money out of there[,] that

      way he could tell his dealer that he had lost everything and we would split it.”

      PCR Tr. p. 33. However, the alleged agreement was only between James and

      Caleb, not the other five victims or Douglas. Further, James testified that

      Douglas did not know about the robbery in advance because he would have

      talked James out of it. Id. at 42. In regard to the defense of a “pretend robbery,”

      trial counsel advised the Crawfords that the defense would be unsuccessful

      because the evidence presented would have resulted in them being found guilty.

      Id. at 26.


[9]   After the hearing, the post-conviction court made the following findings of facts

      and conclusions of law:


              2. [Douglas] hired attorney John Moss (“attorney Moss”) to
              represent [him]. Attorney Moss filed his Appearance[] and
              requested a bond reduction, which was denied after hearing.




      Court of Appeals of Indiana | Memorandum Decision 32A05-1710-PC-2486 | July 13, 2018   Page 4 of 13
        3. After attorney Moss repeatedly failed to appear from hearings,
        [the Crawfords] hired attorney Joseph Thoms (“attorney
        Thoms”) to represent them.


                                                 ***


        6. Attorney Thoms requested but never received [Douglas]’s file
        or depositions from attorney Moss. In any event, he did not
        believe that the contents of Moss’[s] files or the depositions
        would have made a difference.


        7. Attorney Thoms received discovery from then deputy
        prosecutor Joe Manning. Later, Adrienne Champine took over
        prosecution duties. Attorney Thoms reviewed the file and
        believes that he went through the file with his clients.


                                                 ***


        9. Attorney Thoms advised the [Crawfords] that they were facing
        a “maximum 120 year” sentence. He negotiated a 17 year deal
        with the prosecutor and strongly recommended to the
        [Crawfords] that they accept the deal. They rejected a deal and
        opted for a bench trial.


        10. On March 28, 2007, attorney Thoms appeared at the pretrial
        conference and requested that the matter be set for bench trial,
        which was held on August 31, 2007.


        11. Preliminary to the trial, a record was made that [Douglas]
        waived the right to a jury trial, and that each had received and
        rejected the State’s final plea offer. The waivers were in writing
        and were submitted to the Court. Additionally, [Douglas] orally
        confirmed [his] waivers on the record.


Court of Appeals of Indiana | Memorandum Decision 32A05-1710-PC-2486 | July 13, 2018   Page 5 of 13
                                                 ***


        15. During the State’s case, attorney Thoms:


                 a. Made evidentiary objections to the questioning of the
                 State’s witnesses, at least one of which were sustained.


                 b. Cross-examined each victim, pointing out some
                 inconsistencies in the testimony.


                 c. Drew attention to the prior relationship between some
                 of the victims and one or both of the [Crawfords].


                 d. Questioned whether the victims had been smoking
                 marijuana before the armed robbery, suggesting that one of
                 the victims was a marijuana dealer. [ . . . ]


        16. After the State rested, attorney Thoms moved for dismissal
        stating: I don’t believe they’ve proved the elements of a prima
        facie case, I believe that the statements of the victims are
        equivocal and contradictory and that they cannot prove beyond a
        reasonable doubt that they—that there was a gun present, the
        State has not produced the firearm and therefore, I do not believe
        they’ve met the elements of armed robbery at a minimum. The
        motion was denied.


        17. After discussion with [Douglas], it was decided it would be in
        [his] best interest for [him] not to testify. [Douglas] did not want
        to testify. Defense rested without calling any witnesses.


                                                 ***




Court of Appeals of Indiana | Memorandum Decision 32A05-1710-PC-2486 | July 13, 2018   Page 6 of 13
        19. The parties then presented their closing arguments. After the
        State made their arguments, attorney Thoms raised a number of
        issues regarding the State’s witnesses, alleging inconsistencies,
        equivocations, and contradictions. Regarding the deadly weapon
        element of armed robbery, he pointed out that the State did not
        produce a weapon: “There’s no gun, they haven’t been able to
        produce one, therefore, I don’t believe the element of armed
        robbery has been proved.”


Appellant’s App. Vol. II, pp. 50–54. Further, the court concluded that:


        37. In their PCRs, the [Crawfords’] first claim is that attorney
        Thoms was ineffective in that he was not prepared to try the case
        in that he failed to obtain attorney Moss’[s] files (including
        depositions), and spent insufficient time with the [Crawfords]
        such that their “pretend robbery” defense was not heard.


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


        39. The “pretend robbery” defense claimed by James had
        obvious limitations and drawbacks starting with the fact that the
        alleged agreement to fake a robbery would have only applied to
        one person and not to the other five people who were robbery

Court of Appeals of Indiana | Memorandum Decision 32A05-1710-PC-2486 | July 13, 2018   Page 7 of 13
               [sic] at gunpoint. Furthermore, at the PCR hearing, James
               admitted that it turned into a real robbery. [Douglas] never
               thought it to be anything else. [Douglas] had no real defense to
               [the] crimes. Nevertheless, attorney Thoms assisted them in
               exercise of their constitutional right to make the State prove its
               case beyond a reasonable doubt. This court will not second-guess
               matters of strategy by trial counsel.


                                                        ***


               41. Furthermore, they have failed to demonstrate how a different
               approach by attorney Thoms, or a different lawyer, would have
               caused a different result. They have failed to demonstrate
               prejudice.


               42. [Douglas] also allege[s] that [he] would have accepted the
               State’s plea offer had their attorney advised [him] that the armed
               robbery counts could be “stacked” (imposed consecutively). This
               complaint was not raised in their PCR and was, therefore,
               waived. PCR Rule 1, Section 8. In any event, attorney Thoms
               testified that he did advise the Crawford Brothers that because
               the six armed robbery counts could be stacked, the maximum
               sentence was 120 years, which is why he strongly recommended
               that they accept the State’s offer.


       Appellant’s App. Vol. II, pp. 60–62.

[10]   Ultimately, the court found that Douglas’s trial counsel performed within an

       objectively reasonable standard, and that trial counsel’s performance was

       adequate during trial. Therefore, the post-conviction court concluded that

       Douglas had not established that he was denied effective assistance of counsel,

       and it denied his petition. Douglas now appeals.


       Court of Appeals of Indiana | Memorandum Decision 32A05-1710-PC-2486 | July 13, 2018   Page 8 of 13
                                      Discussion and Decision
[11]   The post-conviction petitioner bears the burden of establishing grounds for

       relief by a preponderance of the evidence. Willoughby v. State, 792 N.E.2d 560,

       562 (Ind. Ct. App. 2003), trans. denied. When a petitioner appeals the denial of a

       petition for post-conviction relief, the petitioner stands in the position of one

       appealing from a negative judgment. Id. On appeal, we do not reweigh evidence

       nor judge the credibility of witnesses; therefore, to prevail, Douglas must show

       that the evidence as a whole leads unerringly and unmistakably to a conclusion

       opposite that reached by the post-conviction court. Id.


[12]   Where here, the post-conviction court made specific findings of fact and

       conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we

       must determine if the court’s findings are sufficient to support its judgment.

       Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947

       N.E.2d 962. Although we do not defer to the post-conviction court’s legal

       conclusions, we review the post-conviction court’s factual findings for clear

       error. Id. Accordingly, we will consider only the probative evidence and

       reasonable inferences flowing therefrom that support the post-conviction court’s

       decision. Id.


[13]   A claim of ineffective assistance of trial counsel here requires a showing that:

       (1) Douglas’s trial counsel’s performance was deficient by falling below an

       objective standard of reasonableness; and (2) that the deficient performance

       prejudiced Douglas such that “there is a reasonable probability that, but for


       Court of Appeals of Indiana | Memorandum Decision 32A05-1710-PC-2486 | July 13, 2018   Page 9 of 13
       counsel’s unprofessional errors, the result of the proceeding would have been

       different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). Failure to satisfy

       either of the two elements will cause the claim to fail. French v. State, 778

       N.E.2d 816, 824 (Ind. 2002). And when it is easier to dispose of an

       ineffectiveness claim on the lack of prejudice, then this is the course we should

       follow. Trujillo v. State, 962 N.E.2d 110, 114 (Ind. Ct. App. 2011).


[14]   Douglas argues his trial counsel’s performance was deficient because he

       inadequately informed Douglas of the benefits of accepting the offered plea

       agreement. Specifically, Douglas argues that his trial counsel “did not

       adequately ensure that Douglas knowingly and intentionally rejected the plea

       agreement offered by the prosecution[,]” and counsel’s failure prejudiced

       Douglas. Appellant’s Br. at 14. Further, Douglas claims that his trial counsel

       was ineffective due to counsel’s “decision to advise against Douglas’[s] defense

       was not just an isolated bad strategy or simply ill advised in hindsight[.]” Id.


                    I. Ineffective Assistance of Counsel on Plea Agreement

[15]   “If a plea bargain has been offered, a defendant has the right to effective

       assistance of counsel in considering whether to accept it.” Lafler v. Cooper, 566

       U.S. 156, 132 S.Ct. 1376, 1387 (2012). Douglas testified that counsel was

       unprepared and failed to properly advise him in considering whether to accept




       Court of Appeals of Indiana | Memorandum Decision 32A05-1710-PC-2486 | July 13, 2018   Page 10 of 13
       the plea agreement. Douglas also alleges that counsel failed to explain that the

       sentence could be 120 years.1


[16]   However, trial counsel testified that he urged Douglas to accept the plea

       agreement, but Douglas rejected it and opted for a bench trial. Trial counsel

       testified that he informed Douglas he was “looking at upwards of 120 years”

       PCR Tr. p. 7. Counsel stated that the Crawfords “believed that [] they had a

       good relationship with Judge Freese and that they would [] receive a fair trial

       with a bench trial.” Id. at 20.


[17]   The post-conviction court specifically found that counsel did advise Douglas

       that “because the six armed robbery counts could be stacked, the maximum

       sentence was 120 years, which is why [trial counsel] strongly recommended that

       [Douglas] accept that State’s offer.” Appellant’s App. Vol. II, p. 62.

       Determining whether trial counsel provided ineffective assistance of counsel

       boils down to a credibility issue, and the post-conviction court found counsel’s

       testimony to be credible.


[18]   Further, before trial began the court noted that Douglas had rejected the plea

       agreement. The trial court also stated, “that if [he was] convicted, [the judge]

       will be the one that will sentence [him] and these are B felonies, so [he would

       be] looking at between 6 and 20 years worth of time.” Ex. Vol. III, State’s Ex.




       1
         We note that Douglas did not raise his allegation that he would have accepted the State’s plea offer in his
       PCR, and therefore, it was waived. PCR Rule 1, Section 8. Notwithstanding the waiver, we will address the
       issue.

       Court of Appeals of Indiana | Memorandum Decision 32A05-1710-PC-2486 | July 13, 2018             Page 11 of 13
       1, pp. 10–11. Douglas understood the court’s advisement. Here, Douglas claims

       that trial counsel should have corrected the trial court’s statement of the

       potential sentence he was facing, because it was actually 120 years if the

       maximum sentence was imposed for each conviction. See Appellant’s Br. at 14.

       However, this argument is unpersuasive because Douglas rejected the plea

       agreement before the trial court noted Douglas’s understanding of his decision

       to reject it.

[19]   Therefore, we conclude that trial counsel presented the plea agreement to

       Douglas, advised him that he faced a 120-year sentence if he proceeded to trial,

       and urged him to accept the plea agreement. Douglas voluntarily rejected the

       agreement against counsel’s advice. Therefore, Douglas has not established that

       he was subjected to deficient performance of counsel, and we do not need to

       address the prejudice element. See French, 778 N.E.2d at 824 (stating that failure

       to satisfy either of the two elements will cause the claim of ineffective assistance

       of counsel to fail).


                                      II. Failure to Raise a Defense

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

       and these decisions are entitled to deferential review.” Benefield v. State, 945

       N.E.2d 791, 797 (Ind. Ct. App. 2011) (citing Stevens v. State, 770 N.E.2d 739,

       746–47 (Ind. 2002)) (citations omitted). Trial counsel’s “choice of defense

       theory” in the instant case was a matter of trial strategy. See Overstreet v. State,

       877 N.E.2d 144, 154 (Ind. 2007). Counsel believed that the testimony of six

       victims would not be able to sustain the defense of a “pretend robbery.” Trial
       Court of Appeals of Indiana | Memorandum Decision 32A05-1710-PC-2486 | July 13, 2018   Page 12 of 13
       counsel testified that he believed “through vigorous cross examination we

       would be able to defend [the Crawfords] better.” PCR Tr. p. 20.


[21]   Further, Douglas admitted to the robbery during the post-conviction hearing,

       and the post-conviction court found that Douglas’s preferred defense “had

       obvious limitations and drawbacks” because the “alleged agreement to fake a

       robbery” would have only applied to one of the six victims. Appellant’s App.

       Vol. II, p. 61. Therefore, we conclude that given the weight of the evidence,

       trial counsel’s decision to omit a defense that was unlikely to be successful fell

       within an objective standard of reasonableness. Thus, Douglas has failed to

       establish that trial counsel’s performance was deficient, and we need not

       address the prejudice element of Strickland.


[22]   For all of these reasons, the post-conviction court did not err in denying

       Crawford’s petition for post-conviction relief.


[23]   Affirmed.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A05-1710-PC-2486 | July 13, 2018   Page 13 of 13
