MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D), this                              Dec 20 2018, 8:13 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                           CLERK
                                                                         Indiana Supreme Court
purpose of establishing the defense of res judicata,                        Court of Appeals
                                                                              and Tax Court
collateral estoppel, or the law of the case.



APPELLANT PRO SE                                       ATTORNEYS FOR APPELLEE
Desmon Catlett                                         Curtis T. Hill, Jr.
Pendleton, Indiana                                     Attorney General of Indiana
                                                       Ellen H. Meilaender
                                                       Supervising Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Desmon Catlett,                                            December 20, 2018
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           82A04-1710-PC-2460
        v.                                                 Appeal from the Vanderburgh
                                                           Superior Court
State of Indiana,                                          The Hon. Robert J. Pigman,
Appellee-Respondent.                                       Judge
                                                           Trial Court Cause No.
                                                           82D03-1208-PC-22



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A04-1710-PC-2460 | December 20, 2018         Page 1 of 10
                                          Case Summary
[1]   In 2006, Desmon Catlett was convicted of Class A felony voluntary

      manslaughter and Class B felony unlawful possession of a firearm by a serious

      violent felon (“SVF”) and sentenced to forty-five years of incarceration. In

      2012, Catlett petitioned for post-conviction relief (“PCR”), claiming that his

      trial counsel had been ineffective for allegedly failing to inform him of plea

      offers the State made before his trial. The post-conviction court ordered that

      the case be tried upon affidavits and denied Catlett’s PCR petition in full.

      Catlett contends that the post-conviction court abused its discretion in failing to

      hold an evidentiary hearing and erred in concluding that he had not received

      ineffective assistance of trial counsel (“IAC”). Because we disagree, we affirm.



                            Facts and Procedural History
[2]   The underlying facts of this post-conviction proceeding were related by this

      court on direct appeal:


              In January of 2005, Catlett began dating Regina Hardiman.
              Hardiman had two sons: 14 year-old Te.J., and 12 year-old Tr.S.
              In early March of 2005, Catlett and Hardiman ended their dating
              relationship, and Hardiman began dating Tommy Jones, who
              was Te.J.’s father. On April 2, 2005, Jones drove Te.J. and Tr.S.
              from Hardiman’s house to baseball practice. Later that
              afternoon, Jones returned—with his 13 year-old daughter D.S. in
              the car—to pick up the boys. On the way to Hardiman’s house,
              Jones saw Catlett in a vehicle; he honked at the vehicle, then
              turned around and followed it into the parking lot of an
              apartment complex. It was approximately 5:00 p.m.

      Court of Appeals of Indiana | Memorandum Decision 82A04-1710-PC-2460 | December 20, 2018   Page 2 of 10
              Jones parked next to the vehicle, exited his own, and approached
              the passenger side of the other vehicle—where Catlett was sitting.
              According to D.S., Jones and Catlett “had words” and it
              “sounded like [Jones] was angry.” Catlett extended his hand, but
              Jones refused to shake it. Jones struck Catlett and then tried to
              pull him out of the car. Te.J. went over and “tried to stop”
              Jones. Te.J. saw that Catlett had a gun and then heard a
              gunshot. Jones ran around the back of the vehicles, yelling to
              Te.J., Tr.S., and D.S. “to get down.” Catlett ran after him, firing
              a second shot. Jones ran between two apartment buildings.
              Catlett followed, firing a third shot. The children heard the shots
              and saw Jones fall to the ground. Catlett walked back toward
              them. D.S. asked if her father was dead, and Catlett “said, I
              don’t know.” Catlett walked toward Te.J. and Tr.S. “waving the
              gun” around, and then ran away.

              An apartment resident called 9-1-1; both police and fire
              department personnel were on the scene within minutes. A fire
              department paramedic attempted to treat Jones, despite being
              unable to detect any pulse or respiration by Jones.

              On April 4, 2005, the State filed an information charging Catlett
              with murder and [SVF], a class B felony. Catlett was tried by jury
              on April 24–26, 2006. Te.J., Tr.S., and D.S. testified to the
              above facts, and apartment residents testified to having seen
              Jones running from Catlett. […] Forensic pathologist Mark
              LeVaughn testified that Jones died of multiple gunshot wounds,
              with the “fatal wound being a close range wound to the back of
              the head.”

      Catlett v. State, No. 82A01-0607-CR-313, slip op. at 2–4 (Ind. Ct. App. March

      13, 2007).


[3]   In April of 2005, the State charged Catlett with murder and Class B felony SVF,

      and attorney A. Kissinger was appointed to represent him. On August 19,

      2005, the State sent a letter to Kissinger in which it made a plea offer which
      Court of Appeals of Indiana | Memorandum Decision 82A04-1710-PC-2460 | December 20, 2018   Page 3 of 10
      would have required Catlett to (1) plead guilty to murder and SVF and (2) help

      the police find the gun that was used to commit the murder in exchange for an

      agreement that the sentences would run concurrently but be otherwise at the

      discretion of the trial court. The chronological case summary indicates that

      Kissinger last appeared in court on behalf of Catlett on October 5, 2005, and,

      on November 29, it was noted that Kissinger had passed away. On December

      5, 2005, attorney D. Brinkmeyer entered his appearance for Catlett. On April

      26, 2006, Catlett was convicted of Class A felony voluntary manslaughter and

      Class B felony SVF. The trial court imposed an aggregate forty-five-year

      sentence.


[4]   In August of 2012, Catlett filed a PCR petition, raising several claims of IAC

      and freestanding error. On January 26, 2015, the State Public Defender

      withdrew from representation. On January 27, 2017, the post-conviction court

      ordered the parties to submit the case by affidavit. On April 3, 2017, Catlett

      filed his affidavit, which contained no averments tending to support his claims

      but in which he argued that an evidentiary hearing was necessary for him to

      establish his claims.


[5]   The same day, Catlett filed an amended PCR petition in which he added a

      claim of IAC for allegedly failing to communicate plea offers. Catlett also filed

      a motion for discovery from the State requesting information on any plea offers

      that were made and filed requests for subpoenas for his trial counsel (requesting

      his client file), appellate counsel (to testify about the post-conviction claims),



      Court of Appeals of Indiana | Memorandum Decision 82A04-1710-PC-2460 | December 20, 2018   Page 4 of 10
      and his former post-conviction counsel (to testify about any plea offers found in

      the record).


[6]   Catlett’s trial counsel filed a response stating that he never had access to the

      predecessor counsel’s file and that his own files were destroyed after ten years in

      accordance with policy when no request had been made for them, so he no

      longer had a file for Catlett. In June of 2017, Catlett moved to compel

      responses to requests for admissions/interrogatories, which the post-conviction

      court denied as moot because they had already been granted. In August of

      2017, Catlett again requested an evidentiary hearing, which request the post-

      conviction court denied.


[7]   On September 29, 2017, the post-conviction court denied Catlett’s PCR petition

      in full. With respect to the allegation that trial counsel failed to communicate

      plea offers, the post-conviction court found that Catlett had failed to:


              identify the omitted offers or provide any evidence of the nature
              of the offers or the likelihood and reasons [Catlett] would have
              accepted a plea offer rather than proceeding to a trial by jury.
              The Court is under no obligation to believe [Catlett]’s
              unsupported allegation that plea offers [Catlett] would have
              accepted were not communicated to him. Therefore, [Catlett]
              has not sufficiently established this claim by a preponderance of
              the evidence.

      App. Vol. II p. 162.



                                Discussion and Decision

      Court of Appeals of Indiana | Memorandum Decision 82A04-1710-PC-2460 | December 20, 2018   Page 5 of 10
                                            Standard of Review

[8]   Our standard for reviewing the denial of a PCR petition is well-settled:


              In reviewing the judgment of a post-conviction court, appellate
              courts consider only the evidence and reasonable inferences
              supporting its judgment. The post-conviction court is the sole
              judge of the evidence and the credibility of the witnesses. To
              prevail on appeal from denial of post-conviction relief, the
              petitioner must show that the evidence as a whole leads
              unerringly and unmistakably to a conclusion opposite to that
              reached by the post-conviction court. […] Only where the
              evidence is without conflict and leads to but one conclusion, and
              the post-conviction court has reached the opposite conclusion,
              will its findings or conclusions be disturbed as being contrary to
              law.

      Hall v. State, 849 N.E.2d 466, 468, 469 (Ind. 2006) (internal citations and

      quotations omitted).


                           I. Denial of Evidentiary Hearing
[9]   Pursuant to Post-Conviction Rule 1(9)(b),


              [i]n 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.

      Affidavits constitute sworn testimony and are competent evidence in post-

      conviction proceedings. Smith v. State, 822 N.E.2d 193, 201 (Ind. Ct. App.

      2005), trans. denied. “[I]f the PCR court orders the cause submitted by affidavit

      under Rule 1(9)(b), it is the court’s prerogative to determine whether an

      Court of Appeals of Indiana | Memorandum Decision 82A04-1710-PC-2460 | December 20, 2018   Page 6 of 10
       evidentiary hearing is required, along with the petitioner’s personal presence, to

       achieve a ‘full and fair determination of the issues raised.’” Id. Thus, the

       decision whether to hold a hearing, like the decision to order the cause

       submitted by affidavit, is “best left to the PCR court’s discretion.” Id. “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, and

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

       107 (Ind. 2016) (internal quotations and citations omitted).


[10]   Catlett has failed to show that the post-conviction court abused its discretion in

       ordering the case to be submitted upon affidavit. Catlett’s sole substantive

       claim is that he received IAC when his trial counsel allegedly failed to inform

       him of plea offers. Catlett, however, points to nothing in the record supporting

       his contention that an evidentiary hearing was required to fully and fairly

       evaluate this claim. Catlett’s general assertion that he required an evidentiary

       hearing is simply not enough. Catlett has failed to establish that the post-

       conviction court abused its discretion in ordering the cause be submitted upon

       affidavit.


[11]   Catlett mentions the post-conviction court’s denial of his redundant request for

       admissions and to answer interrogatories and seems to argue that he was

       thereby denied the right to present evidence on his behalf, an alleged wrong that

       an evidentiary hearing presumably would have somehow righted. For several

       reasons, the denial of Catlett’s request did not prejudice him in any way. First,

       the request was only denied as moot because a previous one had already been

       Court of Appeals of Indiana | Memorandum Decision 82A04-1710-PC-2460 | December 20, 2018   Page 7 of 10
       granted. Second, Brinkmeyer, in fact, responded to the first request. Third,

       there is no reason to believe that calling Brinkmeyer to the stand at an

       evidentiary hearing would have helped, as Brinkmeyer no longer had his file for

       Catlett and had never had access to Kissinger’s notes or records. The trial

       court’s denial of Catlett’s request for admissions and to answer interrogatories

       did not give rise to the need for an evidentiary hearing.


[12]   Catlett also suggests that the trial court clerk improperly recorded filings to the

       wrong chronological case summary and that “either the clerk or the court had

       that file destroyed, shortly after Catlett filed his notice of appeal.” Appellant’s

       Br. p. 7. Catlett, however, does not identify the filings to which he is referring

       or the file that was allegedly improperly destroyed. Catlett’s unsubstantiated

       insinuations of misconduct do not support a conclusion that an evidentiary

       hearing was required in this case.


                                                   II. IAC
[13]   We review claims of IAC based upon the principles enunciated in Strickland v.

       Washington, 466 U.S. 668 (1984):


               Under [Strickland], a claim of [IAC] requires a showing that: (1)
               counsel’s performance was deficient by falling below an objective
               standard of reasonableness based on prevailing professional
               norms; and (2) counsel’s performance prejudiced the defendant
               so much that “there is a reasonable probability that, but for
               counsel’s unprofessional errors, the result of the proceeding
               would have been different.” Id. at 687, 694, 104 S. Ct. 2052;
               Lowery v. State, 640 N.E.2d 1031, 1041 (Ind. 1994). […] Failure


       Court of Appeals of Indiana | Memorandum Decision 82A04-1710-PC-2460 | December 20, 2018   Page 8 of 10
                to satisfy either prong will cause the claim to fail. Vermillion v.
                State, 719 N.E.2d 1201, 1208 (Ind. 1999).

       French v. State, 778 N.E.2d 816, 824 (Ind. 2002).


[14]   As mentioned, Catlett claims that Brinkmeyer was ineffective for allegedly

       failing to communicate plea offers to him. There is, however, absolutely no

       support in the record for this claim, as the affidavit filed by Catlett did not

       contain any factual assertions supporting it. Specifically, the affidavit did not

       contain assertions that Brinkmeyer did not tell him about the August 19, 2005,

       plea offer or that Catlett would have accepted the offer if Brinkmeyer had told

       him about it.1 There is no evidence to support a claim of deficient performance.


[15]   Moreover, even if we assume that Catlett was not informed of the offer but

       would have accepted it had he known of its existence, he does not even claim,

       much less establish, that he suffered any prejudice. In any event, we do not

       believe that it would be possible to make such a showing in this case. The

       minimum sentence for murder in 2005 was (as it is today) forty-five years of

       incarceration, the same length as the aggregate sentence the trial court imposed

       after Catlett’s trial, so there is no possibility that accepting the State’s offer

       would have resulted in a shorter sentence. We do not see a way that Catlett




       1
         Catlett also does not claim that Kissinger failed to tell him about the plea offer, even though Kissinger was
       his trial counsel at the time and represented him for at least several weeks after the offer was made before
       Brinkmeyer took over the case.

       Court of Appeals of Indiana | Memorandum Decision 82A04-1710-PC-2460 | December 20, 2018            Page 9 of 10
       could have been prejudiced under the circumstances. Catlett has failed to

       establish IAC.


[16]   The judgment of the post-conviction court is affirmed.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A04-1710-PC-2460 | December 20, 2018   Page 10 of 10
