MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                              Jul 08 2019, 10:13 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
Stephen T. Owens                                          Curtis T. Hill, Jr.
Public Defender of Indiana                                Attorney General of Indiana

Kristin M. Eichel                                         Henry A. Flores, Jr.
Deputy Public Defender                                    Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Demarco Delray Johnson,                                   July 8, 2019
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          19A-PC-104
        v.                                                Appeal from the Vanderburgh
                                                          Superior Court
State of Indiana,                                         The Honorable Robert J. Pigman,
Appellee-Respondent                                       Judge
                                                          Trial Court Cause No.
                                                          82D03-1410-PC-4933



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019                     Page 1 of 22
                                              Case Summary
[1]   Demarco Delray Johnson appeals from the denial of his petition for post-

      conviction relief (“PCR”). He contends that the post-conviction court erred in

      concluding that he was not denied the right to an impartial jury, that he is not

      entitled to a new trial based on alleged juror misconduct, and that his trial

      counsel was not ineffective. Finding no error, we affirm.


                                  Facts and Procedural History
[2]   The following facts are taken from Johnson’s direct appeal:


              [I]n the early morning hours of September 12, 2012, Johnson and
              Andre Parson entered a Walgreens in Evansville, Indiana. The
              two men immediately took one cart and began walking the aisles
              “all over the store”, taking things off the shelves and placing
              them in the child seat of the cart. This caught the attention of
              Craig Hasenfang, a store employee. Hasenfang eventually
              approached Johnson in the dental aisle and asked if he was
              finding everything okay. When Johnson responded
              affirmatively, Hasenfang went to the front of the store to wait
              and give them an opportunity to make a purchase.

              At some point, Hasenfang noticed that Johnson was no longer in
              the store, so he approached Parson to inquire. Parson appeared
              to be on his way out of the store, and Hasenfang observed that
              only one item remained in the cart that the men had been using.
              Hasenfang questioned Parson and informed him to wait. Parson
              fled as Hasenfang called 911 and provided dispatch with a
              description of the men.

              Shortly thereafter, Officer Kareem Neighbors observed two men
              on a scooter matching the description put out on dispatch. When
              Officer Neighbors activated his lights, the passenger, Parson,

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019   Page 2 of 22
              began throwing objects from the scooter as Johnson continued
              driving. Johnson eventually stopped, and as Parson got off the
              scooter, more items fell to the ground. These items were later
              identified as having been taken from the Walgreens store. Parson
              and Johnson were separated and then both placed under arrest.

              Johnson was upset and agitated during the arrest. Officer Jarid
              Harris, who knew Johnson, tried to calm him down. Another
              officer, Jonathan Oakley, arrived and was asked to transport
              Johnson to jail. Officer Oakley placed the already handcuffed
              Johnson in the back of his squad car, which did not have a cage
              separating the front and back seats. As Officer Oakley began to
              drive away, Johnson declared that he was not going to jail and
              lunged toward the front part of the vehicle. Officer Oakley
              stopped the vehicle and went to the back passenger side door.
              Upon opening the door, Johnson lunged at the officer. Officer
              Oakley administered a drive stun, a localized surge of electricity,
              to Johnson’s leg as Johnson attempted to kick him. The two
              ended up tussling in the back seat, so Officer Oakley
              administered another drive stun closer to Johnson’s chest.
              Johnson then turned to his side and attempted to grab the taser.
              Despite being handcuffed, Johnson managed to grab hold with
              one hand. Officer Oakley continued to struggle with Johnson
              and yelled for him to let go. By this point Officer Harris had
              become aware of the struggle and ran to Oakley’s aid. When
              Officer Oakley tased Johnson a third time and placed his body
              weight on him, Johnson finally said, “I’m done.” The officers
              called for a police wagon to take Johnson to jail.


      Johnson v. State, No. 82A05-1303-CR-128, 2013 WL 378602, at *1 (Ind. Ct.

      App. July 17, 2013) (footnote and transcript citations omitted).


[3]   The State charged Johnson with class C felony disarming a law enforcement

      officer, class D felony resisting law enforcement, and class D felony theft, and


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019   Page 3 of 22
      also alleged that he was a habitual offender. During the voir dire proceedings

      before Johnson’s February 2013 trial, the court put the prospective jurors under

      oath and asked if they knew anyone involved in the trial. Prospective juror

      Cynthia Layne was the first to respond and stated that she knew “Demarco.”

      Pet. Ex. B at 5. When the court asked how Layne knew Johnson, she replied,

      “I just know him from around.” Id. The court asked if they were “personal

      friends” or “family members” and if there was “[a]nything about that that

      would make it difficult for you to be fair and impartial in this case?” Id. Layne

      replied, “No.” Id.


[4]   The prosecutor questioned Layne as follows:


              [Prosecutor]: Now, you had indicated that you might know the
              Defendant in passing. Is there anything about that that makes
              you feel uncomfortable sitting on this jury?

              [Layne]: No.

              [Prosecutor]: Okay. That would not be something where as if at
              the end of the case you felt we had proven it beyond a reasonable
              doubt you’d – because you knew the Defendant you’d feel bad
              about it?

              [Layne]: No.


      Id. at 31. The prosecutor asked the prospective jurors whether anyone had been

      a victim of a crime, and Layne gave no response. Id. at 45. She also gave no

      response when the prosecutor asked the prospective jurors whether there was




      Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019   Page 4 of 22
      anything that he or the court had not asked that they felt “the parties should be

      aware of[.]” Id. at 47.


[5]   Johnson’s appointed trial counsel, Doug Walton, questioned Layne as follows:


               [Walton]: Okay. If you were called as a juror at this trial could
               you be fair and impartial?

               [Layne]: Yes.

               [Walton]: Could you give Mr. Johnson a fair shake?

               [Layne]: Yes.

               [Walton]: That’s a term that [the prosecutor] asked for earlier, he
               asked for a fair shake. Now a fair shake would you agree that
               means that you hold the State to their burden of proof? In other
               words you make them prove their case?

               [Layne]: Yes.


      Id. at 64. Neither party struck Layne from the panel, and she served on

      Johnson’s jury.


[6]   After hearing evidence and argument, the jury found Johnson guilty of class C

      felony attempted disarming a law enforcement officer and class D felony theft

      and not guilty of class D felony resisting law enforcement. Johnson admitted to

      being a habitual offender. At the sentencing hearing, Johnson told the trial

      court:


               I respect the jury’s call but I told my, my lawyer while we was in
               trial I said I notice there was a black lady, you know, on the jury

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019    Page 5 of 22
              named Ms. Layne. My daddy used to stay at 1715 South
              Glenwood in 2013 until he got sick and he got put in a nursing
              home and Ms. Layne, I didn't know it was her because I’m used
              to her having up-dos but she had her hair down. She knows me
              because her boyfriend which is deceased, Quan Butler, he had
              got robbed in Oakdale. That’s right around the corner from my
              dad’s house and I seen her crib get robbed and she was there and
              she blamed me and she was one of my jurors.


      Trial Tr. Vol. 1 at 126-27. Walton added,


              And Your Honor I addressed that with the Court that the
              discovery on my client’s part that Ms. Layne was part of the jury
              panel that had previously known Mr. Johnson. Beyond what she
              had indicated in voir dire and I consider that to be a patent
              misrepresentation of her sworn statements as a potential juror,
              that that was grounds for a Motion to Correct Error and I
              accordingly am delivering that information to the Public
              Defender’s Office for their proceedings.


      Id. at 127. The trial court told Johnson, “[Y]our lawyers can deal with that

      information. Nothing I can do about that at this point but you need to be sure

      and tell your appellate lawyer about that, okay?” Id. The court imposed an

      aggregate sentence of twelve years and appointed attorney Yvette LaPlante to

      represent Johnson on appeal.


[7]   No motion to correct error was filed. LaPlante challenged the sufficiency of the

      evidence supporting Johnson’s convictions and the appropriateness of his

      sentence. In July 2013, another panel of this Court affirmed Johnson’s

      convictions and sentence in a memorandum decision.



      Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019   Page 6 of 22
[8]   In October 2014, Johnson filed a pro se PCR petition, which was later amended

      by counsel. The second amended petition alleged that Johnson was denied his

      right to an impartial jury because Layne was biased against him, that Layne

      committed misconduct by concealing her bias, and that Walton provided

      ineffective assistance of counsel. In December 2018, after a hearing, the post-

      conviction court issued an order denying Johnson’s petition that contains the

      following relevant findings of fact and conclusions of law:1


                                             FINDINGS OF FACT


                 ….

                 28. Johnson’s first witness was Angela Layne.

                 28(a) Layne served on Johnson’s jury. She knew Johnson from
                 around the neighborhood. Around 2005, she lived on Oakdale
                 and came home to discover her home had possibly been
                 burglarized. She was told by a bystander that someone saw
                 Johnson at the house. Layne did not herself see Johnson and did
                 not report the incident to police because she was not sure
                 anything was taken. The incident upset her “a little bit” at that
                 time. Later, Layne saw Johnson and asked him about the
                 burglary. Johnson told her he did not do it and “we left it at
                 that.” Layne did not really know Johnson and did not have
                 further contact with him after that confrontation. Layne did not
                 have any particular feeling about Johnson. She felt “neutral”
                 about him.

                 28(b) This incident from 2005 did not come up in her mind at



      1
          We have replaced the court’s references to “Petitioner” with “Johnson.”


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019   Page 7 of 22
        the time of jury selection at Johnson’s 2013 trial. She did not
        consider herself a victim of a crime because she did not believe
        anything had been taken during the 2005 break-in. If someone
        had asked her about it during trial, she would not have said
        anything because there was “nothing to it.” Layne did remember
        the incident later during trial but did not share the information
        with anyone.

        28(c) Layne recalled previously speaking to PCR counsel Eichel
        by telephone but did not recall the conversation itself. When
        confronted with the allegation she had previously told Eichel she
        was probably biased against Johnson at his trial, Layne stated
        that she did not remember that. Layne did not think she was
        biased against Johnson at trial. She did not recall the jury ever
        finding Johnson guilty but thought that “we were just let go.”

        29. Johnson’s second witness was his trial counsel, Doug
        Walton.

        ….

        29(b) …. [Walton stated that, a]s a general rule, if a potential
        juror dislikes his client, he wants them off the jury. Walton
        recalled that Layne said she knew Johnson but she did not say
        anything negative about him during voir dire. At that time,
        Johnson told Walton he recognized Layne but did not know who
        she was. Later, Johnson to [sic] him something to the effect of
        “she’s cool.” Walton did not question Layne about the
        relationship because he “wanted to leave a sleeping dog lie.”
        Further, Layne was the only African American in the jury pool
        and he wanted to keep her if possible so that his client had a jury
        of his peers.

        29(c) Walton did not recall thinking there had been jury
        misconduct at the time of trial but discovered Layne’s potential
        bias around sentencing. He did not recall Johnson telling him
        about Layne during trial; if he had, Walton would have moved
Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019   Page 8 of 22
        for a mistrial. Johnson had later recalled to Walton that Layne
        was not who he thought she was and that they had a negative
        relationship. Johnson and Walton relayed the issue of juror
        misrepresentation to the Court during sentencing. Counsel now
        believed Layne was tainted. Had he known about Layne’s
        feelings toward Johnson during voir dire or trial, he would have
        requested her removal from the jury panel. Walton believed a
        motion to correct error should have been filed, but he did not
        believe it was his responsibility to do so. Walton filled out the
        Pre-Appeal Form and listed the issue when he returned the file to
        the Vanderburgh County Public Defender’s Office.

        30. Johnson’s third witness was appellate counsel Yvette
        LaPlante.

        ….

        30(b) LaPlante did not raise a juror bias or juror misconduct
        issue because she did not have the record to properly do so. On
        appeals, LaPlante is confined to the record, and there was
        nothing about it in the transcripts. She would have needed
        testimony from Layne. Trial counsel would have had to file a
        motion to correct error because it is not her duty on appeal to
        take depositions or engage in discovery. As appellate counsel, it
        is her duty to find record-based appellate issues on her client’s
        behalf.

        31. Johnson also testified at his hearing.

        ….

        31(b) At some point during trial, Johnson recognized Layne,
        who [sic] he knew well but only by the nickname “Booba.”
        Johnson does not recall whether he told the Court about his
        concerns.

        ….
Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019   Page 9 of 22
                                CONCLUSIONS OF LAW


        ….

        2. Johnson’s first claim is that he was denied his right to a fair
        and impartial jury and to due process of law when a biased juror
        served on his jury. In particular, Johnson asserts that juror
        Angela Layne was biased because she knew Johnson and
        believed him to be a thief because she had in 2005 accused him of
        burglarizing her home. An impartial, unbiased jury is guaranteed
        to a criminal defendant by the Sixth Amendment to the federal
        constitution and by Article 1, Section 13 of the Indiana
        constitution.…

        ….

        4. Johnson asserts that Layne was biased both in an actual and
        an implied manner.…

        5. As to the claim of actual bias, Johnson has failed to show the
        [sic] Layne had any “real bias” against him. The only relevant
        evidence of Layne’s predisposition in favor or [sic] against
        Johnson is her testimony under oath along with her willingness
        to admit to the Court she knew Johnson. Prior to trial during voir
        dire, Layne readily and voluntarily reported to the Court that she
        knew Johnson. While Johnson may argue that Layne had a
        vendetta against him and wanted to be on his jury in order to
        exact revenge, if that were the case it is highly unlikely Layne
        would have identified herself and her relationship to the Court at
        all, as she could assume Johnson would then report the 2005
        confrontation with Layne and ask that she be removed from his
        jury panel. Further, when questioned about bias, Layne
        unequivocally affirmed to the Court under oath three (3) different
        times that nothing about her prior association with Johnson
        would affect her ability to be fair and impartial at his trial. When
        asked at the PCR hearing whether she recalled telling Johnson’s

Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019   Page 10 of 22
        PCR counsel Eichel she was “probably biased” at the trial, Layne
        testified that she did not recall that conversation. Eichel did not
        testify, so any implications about her recollections of the
        conversation are not in evidence. There is no evidence from
        which the Court can conclude Layne lied under oath either
        during voir dire or at the PCR hearing. Finally, Layne testified
        that [sic] at the PCR [sic] that she was not biased and there is no
        evidence to contradict her statements under oath. Therefore, the
        Court does not find that Layne had “actual” bias against
        Johnson.

        6. As to the claim of implied bias, because an inference of
        implied bias has arisen based upon a relationship between a juror
        and a party at trial, the Court must analyze the potential bias by
        weighing the nature and extent of the parties’ connection and any
        indications of partiality. The relationship between Layne and
        Johnson was attenuated and short in duration. The only
        evidence before the Court beyond Johnson’s self-serving
        speculative testimony is Johnson’s and Layne’s factual testimony
        that Layne had once accused Johnson of breaking into her home
        in 2005. Layne testified that she believed her home had been
        broken into in 2005 but she did not see a suspect. Layne recalled
        that someone told her Johnson had been around her home at the
        time of the break-in. Shortly thereafter, Layne asked Johnson, a
        casual acquaintance from the neighborhood, if he had broken
        into her home and he denied it. This much, Johnson does not
        dispute.

        7. At this point, Layne and Johnson disagree as to the
        consequences of their discussion. Layne testified that after
        Johnson’s denial, the two “left it at that.” She testified that she
        did not consider the matter a crime or herself a victim of a crime,
        that she did not report the break-in as a crime, that she harbors
        no negative opinion of Johnson and that she forgot about the
        incident until later. To the contrary, Johnson testified that Layne
        believes he committed a crime against her and dislikes him.
        Johnson’s belief, however, is merely speculation about Layne’s
Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019   Page 11 of 22
        opinion of him, and he presents no supporting witness testimony
        or other evidence to corroborate his speculation that Layne
        thought of him as a thief. In her testimony, Layne has denied
        that at trial she was not impartial. Without further evidence, the
        Court cannot conclude that Layne and Johnson had a close or
        enduring relationship in 2005 or thereafter that negatively
        affected her ability to remain impartial in 2013.

        8. Layne is not a victim or former victim or even a relative of a
        victim of a crime committed by Johnson. There is no evidence
        establishing that, to Layne, Johnson is any more than an
        acquaintance she knew “in passing” whom [sic], many years ago,
        she briefly believed may have done something wrong. The
        evidence is that Layne then accepted Johnson’s denial of
        committing a wrong. Layne never sought to prosecute Johnson.
        The Court can find no Indiana precedent for overturning a
        verdict during post-conviction relief proceedings based upon
        implied bias where a petitioner had been briefly considered and
        then dismissed as a suspect in an unrelated, uncharged incident
        with a juror that occurred many years prior.

        9. The Court has weighed the parties’ brief and attenuated
        relationship against any indications of partiality. Layne’s
        testimony at the PCR hearing indicates that she did not form any
        type of opinion regarding Johnson. In fact, she did not recall the
        interaction in question until sometime later in trial. There were
        no other witnesses or other evidence showing that Layne had not
        been impartial at trial. Because Johnson presented no evidence
        beyond his speculation, the Court does not find that Layne was a
        juror with an implied bias. Johnson was not denied of [sic] his
        right to a fair and impartial jury and to due process on the basis
        of a biased juror.

        10. Johnson’s second claim is that he was denied his right to a
        fair and impartial jury and to due process of law when a biased
        juror concealed that bias before and during trial. As examples of
        Layne’s alleged untruths and concealment of them, Johnson

Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019   Page 12 of 22
        asserts that Layne failed to disclosed on her juror questionnaire
        and during voir dire and trial that she had been the victim of a
        2005 crime and that she knew Johnson because she believed
        Johnson was a thief who perpetrated that crime. It is misconduct
        for a juror to make false statements in response to questions on
        voir dire examination, and such is held to constitute reversible
        error because it impairs the right to challenge the juror, either
        peremptorily or for cause.

        11. Generally, proof that a juror was biased against the
        defendant or lied on voir dire entitles the defendant to a new trial.
        To obtain a new trial based on a claim of juror misconduct the
        defendant must demonstrate that the misconduct was gross and
        likely harmed the defendant. Furthermore, the defendant must
        present “specific, substantial evidence” establishing that a juror
        was possibly biased.…

        12. The Court does not find that Layne committed gross
        misconduct in failing to state on her juror questionnaire and
        during voir dire and trial that she had been a victim or witness in a
        criminal matter and that she knew Johnson because she many
        years ago believed he had burglarized her home. In support of
        that finding, the Court initially notes that Layne was not
        deceptive in her response because no criminal investigation was
        ever initiated after the 2005 incident. Thus, it was not a criminal
        matter. The Court also finds that Layne was the first juror to
        raise her hand when the jury was collectively asked if they knew
        any of the trial participants. Layne was not at all reluctant to
        admit that she knew Johnson. Her willingness to immediately
        draw attention to her acquaintance with Johnson establishes to
        the Court that Layne did not believe she concealed anything.

        13. Further, her testimony at the PCR hearing reveals that Layne
        did not believe she was misleading the Court in any of her
        responses because she did not consider herself a victim of any
        crime, let alone one committed by Johnson. In fact, it appears
        that, once Layne finally recalled the 2005 incident, she did not
Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019   Page 13 of 22
        think the occurrence was a crime at all because nothing was
        stolen and she never reported it. She also appears to have
        believed Johnson’s denial of involvement when she confronted
        him. She then seems to have forgotten about the incident in the
        ensuing eight (8) years, as she stated it had “never come up in her
        mind” during voir dire. According to her testimony, it was such
        an insignificant event that even when she remembered it later,
        she did not report it to the Court, and if someone had asked her
        about it, she would not have said anything because there was
        “nothing to it.” This is consistent with her feeling “neutral”
        toward Johnson and her belief that she was not biased again [sic]
        him during trial. The Court concludes that Layne did not
        withhold material information and did not commit gross
        misconduct.

        14. Moreover, there is little to indicate any actions or omissions
        by Layne contributed to the jury’s guilty verdict. Layne testified
        that she did not tell the other jurors about the 2005 incident.
        Layne did not even recall voting to find Johnson guilty of the
        offenses, so the likelihood that the 2005 incident contributed to
        her vote to convict is quite low. Instead, the jury was presented
        with overwhelming evidence from the store manager and the
        officers from which it could confidently conclude that Johnson
        committed the crimes for which he was convicted. There is no
        evidence that Layne’s behavior harmed Johnson. Thus, Johnson
        has failed to carry his burden of proof that he is entitled to a new
        trial due to jury misconduct.

        15. Johnson’s third claim is that his trial counsel provided
        ineffective assistance in two manners: (A) by failing to
        adequately question Layne about how she knew Johnson; and
        (B) by failing to file a motion to correct error and failing to
        request a hearing on Layne’s bias.…

        16. First, a petition must show that counsel’s performance was
        deficient.…


Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019   Page 14 of 22
        17. Second, a petitioner must show that the deficient
        performance prejudiced the defense.…

        18. As to the allegation that counsel performed deficiently by
        failing to adequately question Layne about how she knew
        Johnson, Johnson asserts that an inquiry would have produced a
        [sic] information supporting a challenge for cause that would
        have been sustained by the Court.… Walton testified that he
        relied upon Johnson’s assertion that “she’s cool” and choose [sic]
        not to further question Layne. He also wished to keep Layne, an
        African American, on the jury if at all possible so that Johnson,
        an African American, could have a jury of his peers. Such a
        strategy is not unreasonable and the Court does not second-guess
        this strategy.

        19. Further, there is no evidence upon further inquiry, Layne
        would have stated that she knew Johnson as the person who
        burglarized her home in 2005, thus resulting in removal for cause
        because Layne believed she was a prior crime victim of Johnson.
        To the contrary, Layne testified in the hearing that she did not
        realize until later in the trial, well after voir dire, that Johnson was
        the same person someone stated was near her home after the
        possible burglary in 2005. If counsel had asked Layne more
        about how she knew Johnson, it is not known whether Layne
        would have made the association between Johnson and the event
        eight (8) years prior any earlier than she did.

        20. … Further, it is unclear whether Layne would have disclosed
        any incident she considered inconsequential even if questioning
        jogged her memory. Layne stated that once trial was in progress
        and she remembered the incident and Johnson’s association with
        it, if questioned she would not have said anything because there
        was “nothing to it.” It is obvious that Layne did not consider
        herself Johnson’s crime victim because she was never sure
        Johnson was involved at all and she did not even consider the
        incident a crime. She did not witness Johnson at her home, she
        was not sure anything was taken, she never reported the incident,
Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019   Page 15 of 22
              and she dismissed the matter after confronting Johnson and
              accepting his denial. Consequently, further questioning by
              Walton during voir dire would not have elicited information
              sufficient to justify removal for cause. Because Johnson failed to
              show a reasonable probability that, but for counsel’s omission,
              the result of the proceeding would have been different, Johnson
              has not proven prejudice.

              21. As to Johnson’s allegation that counsel performed deficiently
              when he failed to file a motion to correct error and to request a
              hearing regarding Layne’s bias, Johnson asserts that had counsel
              done so, the Court would have granted it. Johnson claims that,
              because of counsel’s omission, he was denied his right to a fair
              and impartial jury.

              22. To have prevailed on a Motion to Correct Error based upon
              the presence of Layne, Johnson would had to have proven that
              prejudicial or harmful error was committed because Layne was
              indeed a biased juror. As concluded above, Johnson has not
              proven either actual or implied bias as to Layne and, therefore,
              such a motion would not have been granted. Consequently,
              Johnson was not prejudiced by Walton’s failure to file a motion
              that would not have been successful and, therefore, Walton did
              not provide ineffective assistance.


      Appealed Order at 1-18 (citations and underlining omitted). Johnson now

      appeals.


                                     Discussion and Decision
[9]   “Defendants who have exhausted the direct appeal process may challenge the

      correctness of their convictions and sentences by filing a post-conviction

      petition.” Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied (2003).

      “Post-conviction proceedings are civil proceedings, and a defendant must

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019   Page 16 of 22
establish his claims by a preponderance of the evidence.” Id. “Because

[Johnson] is now appealing from a negative judgment, to the extent his appeal

turns on factual issues, he must convince this Court that the evidence as a

whole leads unerringly and unmistakably to a decision opposite that reached by

the post-conviction court.” Id. “In other words, [Johnson] must convince this

Court that there is no way within the law that the court below could have

reached the decision it did.” Id. “[W]e do not defer to the post-conviction

court’s legal conclusions[.]” Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017).

“The post-conviction court is the sole judge of the weight of the evidence and

the credibility of witnesses.” Crowder v. State, 91 N.E.3d 1040, 1048 (Ind. Ct.

App. 2018). “We consider only the probative evidence and reasonable

inferences supporting the judgment and reverse only on a showing of clear

error.” State v. Oney, 993 N.E.2d 157, 161 (Ind. 2013). “Clear error is ‘that

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

made.’” Id. (quoting Spranger v. State, 650 N.E.2d 1117, 1119 (Ind. 1995)).




Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019   Page 17 of 22
           Section 1 – The post-conviction court did not clearly err in
            concluding that Johnson was not denied the right to an
                                 impartial jury.
[10]   Johnson first contends that the post-conviction court clearly erred in concluding

       that he was not denied the right to an impartial jury.2 “An impartial jury is the

       cornerstone of a fair trial, guaranteed by the Sixth Amendment and Article 1,

       Section 13 of our Indiana Constitution.” Ramirez v. State, 7 N.E.3d 933, 936

       (Ind. 2014). “[T]his right is an essential element of due process[,]” and “a

       biased juror must be dismissed.” Caruthers v. State, 926 N.E.2d 1016, 1020 (Ind.

       2010). “Generally, proof that a juror was biased against the defendant …

       entitles the defendant to a new trial.” Alvies v. State, 795 N.E.2d 493, 499 (Ind.

       Ct. App. 2003), trans. denied.


[11]   “A juror’s bias may be actual or implied.” Id. Absent a juror’s admission of

       partiality, actual bias can arise “by inference from some connection of the juror

       to the case, where the nexus is insufficient to create implied bias.” Threats v.




       2
        “Post-conviction procedures do not afford a petitioner with a super-appeal, and not all issues are available.”
       Stevens, 770 N.E.2d at 746 (quoting Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied (2002)).
       “If an issue was known and available but not raised on direct appeal, it is waived.” Id. (quoting Timberlake,
       753 N.E.2d at 597). The State asserts that the issues regarding Layne’s alleged bias and misconduct were
       known and available on direct appeal and are therefore waived. But, as the post-conviction court correctly
       observed in finding 30(b) of its order, Johnson’s appellate counsel did not raise these issues on appeal because
       “she did not have the record to properly do so.” Appealed Order at 9. Appellate counsel could have used the
       Davis/Hatton procedure to terminate or suspend Johnson’s direct appeal and pursue a petition for post-
       conviction relief on those issues, see Talley v. State, 51 N.E.3d 300, 302 (Ind. Ct. App. 2016), trans. denied, but
       she was not obligated to do so, and her not doing so did not result in waiver.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019                         Page 18 of 22
       State, 582 N.E.2d 396, 398 (Ind. Ct. App. 1991), trans. denied (1992).3 A

       “finding of actual bias turns on a calculus incorporating the nature of the link

       and any indications of partiality.” Id. “Implied bias is attributed to a juror upon

       a finding of a certain relationship between the juror and a person connected to

       the case, regardless of actual partiality.” Alvies, 795 N.E.2d at 499. Where an

       inference of implied bias arises, the court “should analyze such potential bias by

       considering the nature of the connection and any indications of partiality.” Id.

       “The court ‘must weigh the nature and extent of the relationship versus the

       ability of the juror to remain impartial.’” Id. (quoting Lee v. State, 735 N.E.2d

       1112, 1115 (Ind. 2000)).


[12]   Johnson claims that “the overall nature of the connection between Layne and

       Johnson overwhelmingly indicates bias exists. A juror who had previously

       accused Johnson of committing a crime against her served on his jury.”

       Appellant’s Br. at 26. Johnson disregards the post-conviction court’s finding

       that his relationship with Layne was “brief and attenuated,” Appealed Order at

       13, which is supported by their statements (Johnson’s at the sentencing hearing




       3
         Johnson complains that “[t]he post-conviction court incorrectly applied a ‘real bias’ standard when it
       analyzed whether Layne had actual bias against Johnson.… Indiana law does not require an express
       admission of bias, rather, a juror’s actual bias can arise by inference.” Appellant’s Br. at 32-33. We presume
       that the post-conviction court’s reference to “real bias” derives from Block v. State, 100 Ind. 357 (1885), which
       the court cited in conclusion 4 of its order. See id. at 362 (“The ‘bias’ which disqualifies a juror is of two
       kinds, ‘actual bias’ and ‘implied bias.’ Actual, where a real bias for or against one of the parties exists.
       Implied, where the relations which the juror sustains to one of the parties are such as to raise a presumption of
       bias in his favor.”). Although the court did not specifically acknowledge that actual bias may arise by
       inference, it effectively concluded that no inference of actual bias could reasonably be drawn in this case by
       rejecting Johnson’s “vendetta” theory in conclusion 5. Appealed Order at 11. We cannot say that this
       conclusion is clearly erroneous.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019                        Page 19 of 22
       and Layne at the PCR hearing) that the 2005 “burglary” slipped their minds

       until after voir dire was completed at the 2013 trial. Johnson also disregards

       Layne’s sworn statements during voir dire that she could “be fair and impartial”

       and give Johnson “a fair shake” despite their prior acquaintance (which she had

       voluntarily disclosed), as well as her sworn statements at the PCR hearing that

       she was not biased against Johnson at trial, that she did not consider herself to

       be the victim of a crime, and that she “left it at that” when Johnson denied

       burglarizing her home. Pet. Ex. B at 64, PCR Tr. Vol. 2 at 10.4 The post-

       conviction judge, who was also the trial judge, specifically found these

       statements credible, and we may not second-guess that determination on

       appeal.5 Based on the foregoing, we cannot say that the post-conviction court

       clearly erred in concluding that Layne did not have actual or implied bias

       against Johnson and that Johnson was not denied the right to an impartial jury.


         Section 2 – The post-conviction court did not clearly err in
       concluding that Johnson is not entitled to a new trial based on
                        Layne’s alleged misconduct.
[13]   Johnson also contends that the post-conviction court clearly erred in concluding

       that he is not entitled to a new trial based on Layne’s alleged misconduct. “To




       4
         After Layne testified that she “left it at that[,]” she was asked whether she had believed Johnson’s denial.
       She replied, “I didn’t know what to believe at that point.” PCR Tr. Vol. 2 at 14. Johnson characterizes this
       statement as an indication that Layne “did not trust him or his word.” Appellant’s Reply Br. at 7. This
       disregards Layne’s earlier testimony that she “didn’t know him to trust him or not[,]” PCR Tr. Vol. 2 at 10,
       which squares with her decision to “[leave] it at that.”
       5
        To the extent Johnson suggests that a court may not rely on a juror’s own statements of impartiality, our
       supreme court said otherwise in Ramirez. 7 N.E.3d at 941.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019                       Page 20 of 22
       obtain a new trial based on a claim of juror misconduct, the defendant must

       demonstrate that the misconduct was gross and likely harmed the defendant.”

       Stephenson v. State, 864 N.E.2d 1022, 1055 (Ind. 2007), cert. denied (2008).

       Johnson asserts that Layne committed misconduct by failing to disclose that she

       was “Johnson’s past burglary victim” and that he was harmed because he was

       denied the right to an impartial jury. Appellant’s Br. at 38.6 As indicated by the

       post-conviction court, Layne “did not consider herself a victim of any crime, let

       alone one committed by Johnson.” Appealed Order at 14 (conclusion 13).

       And even if Layne should have disclosed during trial that she had asked

       Johnson about the burglary, Johnson was not harmed because he was not

       denied the right to an impartial jury. Accordingly, we find no clear error here.


            Section 3 – The post-conviction court did not clearly err in
           concluding that Johnson’s trial counsel was not ineffective.
[14]   Finally, Johnson challenges the trial court’s conclusion that he did not receive

       ineffective assistance of trial counsel. “The Sixth Amendment guarantees

       criminal defendants the right to the effective assistance of counsel.” Johnson v.

       State, 948 N.E.2d 331, 334 (Ind. 2011), cert. denied (2012). We evaluate

       ineffectiveness claims under the two-part test enunciated in Strickland v.

       Washington, 466 U.S. 668 (1984). Rondeau v. State, 48 N.E.3d 907, 916 (Ind. Ct.




       6
         Johnson also contends that Layne’s “disclosure would have provided a valid basis for a challenge for
       cause[.]” Appellant’s Br. at 39. But Layne’s undisputed testimony establishes that she did not recall the
       alleged burglary until after voir dire was completed. See PCR Tr. Vol. 2 at 10 (“It really didn’t come up in
       my mind at the time.”).

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019                       Page 21 of 22
       App. 2016), trans. denied. “To prevail on an ineffective assistance of counsel

       claim, a defendant must demonstrate both deficient performance and resulting

       prejudice.” Id. “Deficient performance is that which falls below an objective

       standard of reasonableness.” Id. “Prejudice exists when a claimant

       demonstrates that ‘there is a reasonable probability that, but for counsel’s

       unprofessional errors, the result of the proceeding would have been different. A

       reasonable probability is a probability sufficient to undermine confidence in the

       outcome.’” Id. (quoting Strickland, 466 U.S. at 694). The two Strickland prongs

       are separate and independent inquiries, so if it is easier to dispose of an

       ineffectiveness claim based on lack of sufficient prejudice, that course should be

       followed. Id.


[15]   Johnson contends that Walton, his trial counsel, performed deficiently in failing

       to question Layne more specifically about her acquaintance with Johnson

       during voir dire and in failing to file a motion to correct error to preserve the

       bias issue for appeal. He contends that he “was prejudiced because his jury was

       not impartial.” Appellant’s Br. at 43. We have already determined otherwise,

       so Johnson’s ineffectiveness claim fails. Therefore, we affirm.


[16]   Affirmed.


       Bradford, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019   Page 22 of 22
