MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                       Feb 28 2019, 8:47 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
Robert E. Murphy                                         Curtis T. Hill, Jr.
Pendleton Correctional Facility                          Attorney General of Indiana
Pendleton, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert E. Murphy,                                        February 28, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         53A01-1711-PC-2774
        v.                                               Appeal from the Monroe Circuit
                                                         Court
State of Indiana,                                        The Honorable Teresa D. Harper,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         53C09-1108-PC-1585



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 53A01-1711-PC-2774 | February 28, 2019        Page 1 of 13
                                             Case Summary
[1]   Robert E. Murphy, pro se, appeals the post-conviction court’s denial of his

      petition for post-conviction relief. He asserts that the trial court denied him his

      right to a fast and speedy trial and that the post-conviction court clearly erred in

      determining that he failed to demonstrate that he received the ineffective

      assistance of trial counsel. Concluding that Murphy cannot raise a freestanding

      claim of trial court error, and further concluding that he has not met his burden

      to prove that the post-conviction court clearly erred in determining that he

      failed to demonstrate that he received ineffective assistance, we affirm.


                                 Facts and Procedural History
[2]   The underlying facts as recited by another panel of this Court on direct appeal

      follow:


              In the afternoon of December 20, 2008, M.H. was running a
              seventeen-mile route which included a portion of the “unofficial
              Rails to Trails” in Monroe County. As M.H. was running
              northbound on the trail just north of Country Club Drive, she
              passed three other runners going southbound on the trail,
              including Tracy Gates, whom M.H. recognized because Gates
              worked at the Bakehouse. Approximately forty-five seconds to a
              minute later, Murphy, who was running northbound on the path
              and dressed in “[s]treet clothes, black pants, black shoes and a
              dark top” and a “stocking cap,” passed Gates and the other
              runners. Gates noticed that Murphy had sustained a significant
              amount of trauma to his face.


              Approximately forty-five seconds to a minute after passing Gates
              and the other two runners, M.H. heard Murphy’s footsteps

      Court of Appeals of Indiana | Memorandum Decision 53A01-1711-PC-2774 | February 28, 2019   Page 2 of 13
        behind her and, assuming that it was another runner, moved over
        to the right to allow the approaching person to pass on the left.
        Instead of passing her, Murphy “grabbed [M.H.] from behind,”
        which was “pretty forceful” and “like being tackled,” so that
        M.H. “couldn’t move around.” Murphy held M.H. from behind,
        held her head secure, and said to her, “I'm not going to do
        anything sexual to you, I just want your money.” M.H. told
        Murphy that she was “just out running and ... [didn't] have any
        ... money on [her].”


        Murphy then told M.H. to “turn out [her] pockets,” and M.H.
        was eventually able to get a key and an energy gel packet out of
        the pocket sewn into the waistband of her tights and gave them to
        Murphy. While still holding M.H., Murphy pulled an ear
        warmer which M.H. was wearing down over M.H.’s eyes to
        blindfold her. Murphy then ordered M.H. to take off her shoes,
        and M.H. took off one shoe and held it up to show Murphy that
        she did not have anything in the shoe. M.H. then told Murphy
        she was “going to need to sit down to take off the other shoe ...
        and take off [her] gloves to undo the shoe laces.” Murphy, who
        was standing over and still holding M.H., then told M.H. to take
        off her shirt because “he wanted to see if [M.H.] had anything
        hidden in [her] bra.” M.H. pulled her shirt over her head, and
        Murphy “fumbl[ed]” around between M.H.’s breasts and there
        was nothing there.


        At that point, Murphy pulled up on M.H.’s clothing and sports
        bra, which exposed M.H.’s breasts. After M.H.'s breasts were
        exposed, Murphy told M.H. that he wanted her to lick her
        breasts, but she refused. Murphy put one of his hands on M.H.’s
        throat and told her again to lick her breasts. M.H. started to cry
        and complied. Murphy told M.H. to put her shoes back on and to
        stand up. After M.H. stood up, Murphy, who was behind M.H.
        and had one of his hands on her neck, forced M.H. forward
        towards a wooded area or brush near the trail. M.H. “struggled a
        little bit because [she] didn't want to go back there,” and Murphy

Court of Appeals of Indiana | Memorandum Decision 53A01-1711-PC-2774 | February 28, 2019   Page 3 of 13
        said “he would kill [M.H.] if [she] didn’t do as he said.” M.H.
        could not see where she was going because she was still
        blindfolded. M.H. protested and stated “please don’t do this”
        several times.


        Once in the wooded area, Murphy gave M.H. a “rougher shove”
        from behind, and M.H. fell over onto her hands and knees.
        Murphy pulled down M.H.’s pants and underwear and then
        pushed M.H. down so that she “was laying flat.” Murphy told
        M.H. that if she did as he said, he would not kill her. Murphy
        then told M.H. to “roll over so that [she] was lying face
        upwards.” Murphy ordered M.H. to “finger [her] self.” M.H.
        cried and told Murphy “don’t do this,” and Murphy told her to
        “stop screaming.” M.H. “tried to play along,” but Murphy
        “didn’t like it,” “leaned in really close,” and threatened to hit
        M.H. if she did not “do it right.”


        Murphy then made M.H. pull up her shirt and lick her breasts
        and finger her vagina at the same time. Murphy ordered M.H. to
        say “I like doing this for you daddy” and “I’m a dirty little
        whore.” Murphy also repeatedly told M.H. that he wanted her to
        repeat the phrases in a “younger voice.” Murphy also ordered
        M.H. to lick the fingers that had been inside her vagina. From
        the sounds Murphy was making, M.H. believed that Murphy was
        aroused and was under the impression that he was masturbating.


        At some point, Murphy asked M.H. if she “wanted to suck his
        cock.” M.H. said no, and Murphy grabbed her by her ponytail,
        pulled her to her knees, told her to open her mouth, and forced
        his penis into her mouth. M.H. could not breathe and was
        choking and gagging. Murphy took his penis out of M.H.’s
        mouth, and she “doubled over a little bit” trying to catch her
        breath. Murphy forced his penis into M.H.’s mouth a second
        time, and again Murphy could not breathe.



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        Murphy told M.H. to stand up and put her clothes on, and she
        complied. Murphy dropped M.H.’s water bottle, gloves and shirt
        next to her and told her to take a drink. After M.H. collected her
        belongings, Murphy guided her over to face a tree and told M.H.
        to stay there. M.H. heard Murphy “using his foot to scuff over
        the area somehow.” Murphy then told M.H. not to move until he
        told her, and M.H. heard Murphy move away. Murphy shouted
        for M.H. to “go,” and M.H. stumbled back to the trail. M.H. saw
        Gates and the other two runners that she had passed earlier in the
        day running back northbound on the trail. Gates and her friends
        called the police using M.H.’s cell phone.


        The police arrived on the scene and spoke with M.H., Gates, and
        the other runners. Gates later went to the police station and
        assisted with the generation of a composite sketch of Murphy by
        describing his different features and scarring. Bloomington Police
        Detective Sarah Carnes talked to M.H. about going to the
        hospital to do a sexual assault kit and STD testing, and M.H.
        requested Detective Carnes to go with her. Detective Carnes met
        M.H. and M.H.’s fiancé at Bloomington Hospital. While
        Detective Carnes was waiting for a room for M.H., she observed
        Murphy sitting in the emergency room. Detective Carnes noticed
        Murphy because of the distinct marking on the left side of his
        face and because “[e]verything about the composite, including
        the distinct description of the wounds appeared to match the
        subject that [she] saw sitting in the emergency room.”


        Detective Carnes spoke with Murphy, and Murphy
        acknowledged that he wore his black shoes and had walked by
        the “trail entrance” near Country Club Drive to get his bicycle
        from a crash that he had been in the previous day. Detective
        Carnes took photographs of Murphy with his permission,
        obtained his address, and asked him to submit to an evidence
        collection kit. M.H. also submitted to a sexual assault victim kit.



Court of Appeals of Indiana | Memorandum Decision 53A01-1711-PC-2774 | February 28, 2019   Page 5 of 13
        Later in the day, police asked Gates to visit the police station
        again and showed her some photographs of Murphy. Gates
        recognized Murphy as the person she observed on the trail in
        street clothes with the markings on the side of his face. At some
        point after the attack, M.H. observed a story on the internet
        which included Murphy speaking, and M.H. immediately
        recognized Murphy’s voice.


        On December 22, 2008, the State charged Murphy with: Count I,
        criminal deviate conduct as a class A felony; Count II, sexual
        battery as a class C felony; Count III, robbery as class C felony;
        Count IV, criminal confinement as a class D felony; and Count
        V, intimidation as a class D felony. A bench trial commenced on
        October 23, 2009, at which the State presented evidence and
        testimony to identify Murphy as the person who attacked M.H.
        on December 20, 2008. Murphy was found guilty of Counts I,
        III, IV, and V as charged and battery as a class B misdemeanor as
        a lesser included offense of sexual battery under Count II.
        Murphy’s convictions under Counts II and V were merged with
        his conviction under Count I for sentencing. After a hearing,
        Murphy was sentenced to fifty years for his conviction for
        criminal deviate conduct, seven years for his conviction for
        robbery, and three years for his conviction for criminal
        confinement, and the court ordered the sentences be served
        consecutive to each other.


Murphy v. State, No. 53A04-1003-CR-149, slip op. at 1-3 (Ind. Ct. App. Dec. 15,

2010) (citations omitted). On direct appeal, Murphy alleged that the State

presented insufficient evidence to sustain his convictions, and that his

convictions for criminal deviate conduct and criminal confinement violated the

prohibition against double jeopardy. Finding the evidence sufficient and no

double jeopardy violation, this Court affirmed Murphy’s convictions. Id., slip

op. at 8-10.
Court of Appeals of Indiana | Memorandum Decision 53A01-1711-PC-2774 | February 28, 2019   Page 6 of 13
[3]   Murphy filed a pro se petition for post-conviction relief on August 9, 2011.

      Following a hearing, the trial court entered a detailed order denying Murphy’s

      petition. This appeal ensued.


                                     Discussion and Decision
[4]   The appellate standard of review regarding post-conviction proceedings is well

      settled.


              Post-conviction proceedings are civil proceedings in which the
              defendant must establish his claims by a preponderance of the
              evidence. Post-conviction proceedings do not offer a super
              appeal, rather, subsequent collateral challenges to convictions
              must be based on grounds enumerated in the post-conviction
              rules. Those grounds are limited to issues that were not known at
              the time of the original trial or that were not available on direct
              appeal. Issues available but not raised on direct appeal are
              waived, while issues litigated adversely to the defendant are res
              judicata. Claims of ineffective assistance of counsel and juror
              misconduct may be proper grounds for post-conviction
              proceedings.


              Because the defendant is appealing from the denial of post-
              conviction relief, he is appealing from a negative judgment and
              bears the burden of proof. Thus, the defendant must establish
              that the evidence, as a whole, unmistakably and unerringly
              points to a conclusion contrary to the post-conviction court’s
              decision. In other words, the defendant must convince this Court
              that there is no way within the law that the court below could
              have reached the decision it did. We review the post-conviction
              court’s factual findings for clear error, but do not defer to its
              conclusions of law.




      Court of Appeals of Indiana | Memorandum Decision 53A01-1711-PC-2774 | February 28, 2019   Page 7 of 13
      Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013) (citations and quotation

      marks omitted). We will not reweigh the evidence or judge the credibility of

      witnesses, and will consider only the probative evidence and reasonable

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

      Hinesley v. State, 999 N.E.2d 975, 981 (Ind. Ct. App. 2013), trans. denied (2014).


       Section 1 – Murphy cannot raise a freestanding claim of trial
                              court error.
[5]   We first address Murphy’s assertion that he is entitled to post-conviction relief

      because the trial court denied him his right to a fast and speedy trial. Post-

      conviction procedures do not provide a petitioner with an opportunity to

      present freestanding claims that the original trial court committed error.

      Wrinkles v. State, 749 N.E.2d 1179, 1187 n.3 (Ind. 2001). Rather, “‘[i]n post-

      conviction proceedings, complaints that something went awry at trial are

      generally cognizable only when they show deprivation of the right to effective

      counsel or issues demonstrably unavailable at the time of trial or direct

      appeal.’” Bunch v. State, 778 N.E.2d 1285, 1289-90 (Ind. 2002) (quoting Sanders

      v. State, 765 N.E.2d 591, 592 (Ind. 2002)). Murphy makes no attempt to

      establish that his speedy trial claim was demonstrably unavailable on direct

      appeal. Thus, the post-conviction court properly denied this freestanding claim

      of error, and we will only address his claim in the context of ineffective

      assistance of counsel.




      Court of Appeals of Indiana | Memorandum Decision 53A01-1711-PC-2774 | February 28, 2019   Page 8 of 13
         Section 2 – Murphy has not met his burden to prove that he
               received ineffective assistance of trial counsel.
[6]   Murphy contends that he received ineffective assistance of trial counsel. When

      evaluating an ineffective assistance of counsel claim, we apply the two-part test

      articulated in Strickland v. Washington, 466 U.S. 668 (1984). Humphrey v. State,

      73 N.E.3d 677, 682 (Ind. 2017). “To satisfy the first prong, ‘the defendant must

      show deficient performance: representation that fell below an objective standard

      of reasonableness, committing errors so serious that the defendant did not have

      the ‘counsel’ guaranteed by the Sixth Amendment.’” Id. (quoting McCary v. State,

      761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the second prong, the defendant

      must show prejudice. Id. To demonstrate prejudice from counsel’s deficient

      performance, a petitioner need only show “a reasonable probability that, but for

      counsel’s unprofessional errors, the result of the proceeding would have been

      different.” Middleton v. State, 72 N.E.3d 891, 891-92 (Ind. 2017) (emphasis and

      citation omitted). “A reasonable probability is a probability sufficient to

      undermine confidence in the outcome.” Id.


[7]   Isolated poor strategy, inexperience, or bad tactics does not necessarily

      constitute ineffective assistance. Hinesley, 999 N.E.2d at 982. When considering

      a claim of ineffective assistance of counsel, we strongly presume “that counsel

      rendered adequate assistance and made all significant decisions in the exercise

      of reasonable professional judgment.” Id. (citation omitted). We presume that

      counsel performed effectively, and a defendant must offer strong and

      convincing evidence to overcome this presumption. Id.

      Court of Appeals of Indiana | Memorandum Decision 53A01-1711-PC-2774 | February 28, 2019   Page 9 of 13
                                            1.1 – Conflict of Interest

[8]   Murphy contends that his appointed public defender, Patrick Schrems, rendered

      ineffective assistance at trial due to an alleged “conflict of interest.” Appellant’s

      Br. at 16. It is true that “[i]neffective assistance of counsel can occur where

      counsel is burdened by a conflict of interest, in which case special rules apply.”

      Johnson v. State, 948 N.E.2d 331, 335 (Ind. 2011) (citations and footnote

      omitted). However, we agree with the post-conviction court that Murphy

      merely disagreed with how Schrems was representing him, but he never alleged

      an actual conflict of interest; namely, he never alleged that Schrems’s loyalties

      were divided between Murphy and another client. An actual conflict of interest

      is quite different from disagreements with one’s counsel or an ordinary case of

      alleged attorney neglect. See Johnson v. State, 948 N.E.2d 331, 335 (Ind. 2011)

      (noting that the only cases in which the U.S. Supreme Court has applied special

      conflict of interest rules to ineffective assistance of counsel are those where

      counsel is engaged in multiple representation). Murphy does not point to any

      division of loyalties or identify any other client or interest to which his counsel

      owed a duty. Murphy has failed to establish that his trial counsel was burdened

      with a conflict of interest.1




      1
        Murphy suggests that his filing disciplinary complaints against Schrems with the Indiana Supreme Court
      Disciplinary Commission both during and after his trial created an actual conflict of interest. We disagree, as
      the personal conflict of interest that would have been created is not the type of conflict to which any special
      rules apply. Johnson, 948 N.E.2d at 335 n.5.

      Court of Appeals of Indiana | Memorandum Decision 53A01-1711-PC-2774 | February 28, 2019         Page 10 of 13
                                        1.2 – Fast and Speedy Trial

[9]    The crux of Murphy’s ineffective assistance of counsel claim is his assertion that

       his trial counsel failed to move for a fast and speedy trial on his behalf despite

       his clear indication that he wanted a speedy trial. Our supreme court has stated

       that an attorney may indeed be ineffective when he or she fails to file a motion

       for a speedy trial on behalf of the client. Broome v. State, 694 N.E.2d 280, 281

       (Ind. 1998). Specifically, the court explained that “[t]here may exist

       circumstances in which defense counsel’s refusal or neglect to file a speedy trial

       motion specifically requested by a defendant could constitute deficient

       performance to support a claim of ineffective assistance of counsel.” Id.

       (emphasis added). However, such circumstances did not exist in Broome. The

       defendant in Broome attempted to request a speedy trial during a pre-trial

       conference. His counsel opposed the request, explaining that he could not

       properly prepare for the trial within the prescribed seventy days pursuant to

       Criminal Rule 4(B). Id. Our supreme court explained that “[w]hen counsel’s

       action or inaction is premised upon matters relating to trial preparation, such

       decisions are matters of trial strategy and the power to make binding decisions

       of trial strategy is generally allocated to defense counsel.” Id. Consequently, the

       Broome court rejected the defendant’s claim of ineffective assistance.


[10]   Here, Murphy inquired about a speedy trial during his initial hearing. The trial

       court instructed him to speak with his attorney, once one was appointed, about

       a speedy trial. Attorney Shrems testified during the post-conviction hearing

       that he did not recall whether Murphy ever discussed with him his desire for a

       Court of Appeals of Indiana | Memorandum Decision 53A01-1711-PC-2774 | February 28, 2019   Page 11 of 13
       speedy trial. Nevertheless, he stated that any decision by him not to file a

       speedy trial motion was strategic. Specifically, he stated that he would not have

       had enough time to prepare an adequate defense due to the complexity and

       amount of evidence, including DNA evidence,2 that was involved in Murphy’s

       case. Schrems explained, “[G]iven the nature of the case, there was so much

       information that we had to work through, … it just was not … feasible to work

       in the time frame.” Tr. Vol. 2 at 34. Thus, Shrems’s action or inaction was

       premised on matters relating to trial preparation which are considered matters

       of trial strategy generally relegated to defense counsel. Murphy has failed to

       present strong and convincing evidence to overcome the presumption that

       Schrems rendered adequate assistance on this issue.3


[11]   In sum, Murphy has not met his burden to show that the post-conviction court

       clearly erred in determining that he failed to demonstrate that he received




       2
         It appears that Murphy was hoping that the State would have been forced to go to trial before receiving
       DNA test results. He argues, “If there is not any DNA then no fact-finder can place appellant in contact with
       the ‘victim’ which brings about reasonable doubt.” Appellant’s Br. at 12. However, as noted by the post-
       conviction court, even had Schrems filed a speedy trial motion, the State would have been entitled to seek a
       continuance pursuant to Criminal Rule 4(D).
       3
         Moreover, the post-conviction court found that Murphy waived his right to a speedy trial on more than one
       occasion. Specifically, the post-conviction court found that Murphy waived his right on May 13, 2009, when
       the case was set for a June 22, 2009 bench trial, and again on June 19, 2009, when he acquiesced to a
       continuance and signed a document stating that “he understood the bench trial would be delayed and that he
       was waiving his right to a speedy trial.” Appellant’s Br. at 30. His counsel explained to the trial court that the
       continuance was necessary to accommodate independent DNA testing by the defense. Murphy agreed to the
       continuance on the record, stating that he agreed to the continuance to allow time for the independent testing
       because he wanted to be “sure.” Id. at 31. Indeed, when asked by the trial court if he favored a continuance,
       Murphy replied, “Overall, yes.” Id. Murphy does not challenge the post-conviction court’s findings in this
       regard.

       Court of Appeals of Indiana | Memorandum Decision 53A01-1711-PC-2774 | February 28, 2019            Page 12 of 13
       ineffective assistance of trial counsel. Accordingly, we affirm the denial of his

       petition for post-conviction relief.


[12]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A01-1711-PC-2774 | February 28, 2019   Page 13 of 13
