MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                              Nov 20 2019, 6:14 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.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Christopher S. Powell                                   Curtis T. Hill, Jr.
Michigan City, Indiana                                  Attorney General of Indiana

                                                        Matthew B. MacKenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Christopher S. Powell,                                  November 20, 2019
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        18A-PC-2438
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable Jane Woodward
Appellee-Petitioner.                                    Miller, Judge
                                                        Trial Court Cause Nos.
                                                        71D01-1403-PC-14
                                                        71D01-0711-FB-153




Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-2438 | November 20, 2019              Page 1 of 9
                                       Statement of the Case
[1]   Christopher S. Powell appeals the post-conviction court’s denial of his petition

      for post-conviction relief. Powell raises one issue for our review, namely,

      whether the post-conviction court clearly erred when it determined that he had

      not received ineffective assistance from his counsel.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On November 17, 2007, Powell entered a Fun Tan tanning salon. Powell asked

      the two young female employees if he could use the phone. The employees told

      Powell that he could not use the phone and that he needed to leave. But Powell

      did not leave, so one of the employees activated the salon’s silent alarm.

      Powell then pulled a kitchen knife out of his pocket and demanded money.

      One of the employees gave Powell $300 in cash. Powell forced the employees

      onto the floor and then put tape over their hands, mouths, and eyes. When law

      enforcement officers arrived in response to the silent alarm, Powell fled.

      Officers ultimately located Powell nearby and arrested him. When officers

      arrested Powell, they searched a backpack that belonged to him. In that

      backpack, officers found a roll of tape, condoms, Vaseline, and a “sexual energy

      drink.” Appellant’s App. Vol. II at 135.


[4]   On November 20, the State charged Powell with two counts of robbery, as

      Class B felonies (Counts 1 and 2), and two counts of criminal confinement, as

      Class B felonies (Counts 3 and 4). Thereafter, on January 8, 2008, the State

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2438 | November 20, 2019   Page 2 of 9
      amended the information and additionally charged Powell with two counts of

      attempted rape, as Class A felonies (Counts 5 and 6).


[5]   On January 25, Powell’s counsel wrote a letter to the prosecuting attorney. In

      that letter, Powell’s counsel stated that there was no factual basis for the two

      attempted rape counts. However, Powell’s attorney stated that Powell would

      plead guilty to the remaining four counts in exchange for concurrent sentences,

      the lengths of which could be argued at sentencing. On February 5, the

      prosecuting attorney rejected the proposal from Powell’s attorney and, instead,

      offered a plea agreement under which the State would dismiss Counts 5 and 6 if

      Powell agreed to plead guilty to Counts 1 through 4 in exchange for an

      aggregate sentence of thirty-six years.


[6]   On February 8, Powell’s counsel responded to the February 5 letter and

      requested an aggregate sentence of twenty-four years. Three days later, on

      February 11, the prosecuting attorney rejected the counteroffer and stated that

      the State would only agree to a plea if the sentence was thirty-six years. The

      prosecuting attorney then reiterated the thirty-six-year offer but stated that that

      offer would expire on February 12. Thereafter, on March 24, Powell’s attorney

      sent another offer to the State, in which Powell’s attorney stated that, after

      reviewing the evidence, Powell would agree to plead guilty to two counts of

      robbery, as Class C felonies, and to Counts 3 and 4 as charged in exchange for a

      sentence to be argued by the parties. The State did not accept that offer.

      Ultimately, Powell agreed to plead guilty to Counts 1 through 4 in exchange for



      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2438 | November 20, 2019   Page 3 of 9
      an aggregate sentence of forty years. The trial court accepted Powell’s plea and

      sentenced him accordingly.


[7]   On August 1, 2017, Powell filed an amended petition for post-conviction relief.

      In that petition, Powell asserted that his counsel had rendered ineffective

      assistance when he had failed to communicate to Powell the State’s thirty-six-

      year offer contained in the February 5, 2008, letter. The post-conviction court

      held an evidentiary hearing on Powell’s petition on July 13, 2018.


[8]   During that hearing, Powell’s trial counsel testified that, while he did not

      specifically recall discussing the thirty-six-year offer with Powell, when he

      receives a plea offer from the State, he “almost immediately go[es] to [his] client

      and convey[s] what the offer is and discuss[es] it.” Id. at 65. He further

      testified that he “[a]ways” leaves the decision of whether to accept a plea offer

      to his client. Id. He also testified that he does not “make the decision about the

      plea. I leave it up to my clients to decide whether they want to plead or not.”

      Tr. Vol. II at 60. Additionally, Powell’s trial counsel testified that, even though

      he did not specifically recall discussing the offer with Powell, “it would appear

      that [he] did discuss it with [Powell], because [he] made a counter-offer” and he

      “wouldn’t have made a counter-offer without discussing the offer” with Powell

      first. Id.


[9]   Powell also testified at the post-conviction hearing. He testified that his trial

      counsel did not communicate the State’s thirty-six-year offer to him. He further

      testified that, had he known of that offer, he would have accepted it.


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2438 | November 20, 2019   Page 4 of 9
[10]   On September 13, the post-conviction court entered its findings and

       conclusions. In particular, the court found and concluded as follows:


               Although [counsel] had no independent recollection of the exact
               course of the plea negotiations, he was able to testify to his
               customary way of handling offers. His testimony regarding his
               routine practice was credible [and] fits with the inferences that
               can be drawn from the documentary evidence presented. In
               January, he conveyed an offer to [the prosecuting attorney] in
               which his client would plead to all the Class B felonies and face a
               maximum exposure of twenty year[s]. [The prosecuting
               attorney] replied with the February 5 counteroffer. Her
               counteroffer would have resulted in a binding thirty-six[-]year
               sentence. [Counsel] responded three days later and noted the
               parties weren’t too far apart on the terms. He reminded [the
               prosecuting attorney] that Powell was going to be doing six years
               on his old case and indicated Powell was willing to serve a
               binding twenty-four [years] on the new case. After [the
               prosecuting attorney] rejected this second proposal, Powell
               appeared in court and asked to use the law library.


               Both the content and the course of the negotiations between
               counsel leads this court to conclude that [counsel] acted in the
               way he typically acted. The court concludes that twice he made
               an offer, conveyed the responses, discussed the matter with his
               client[,] and let his client decide whether or not to accept thirty-
               six years. Mr. Powell declined to do so.


               Based on its analysis of the evidence presented and its
               determination of the value and weight to give to that evidence,
               the Court finds [counsel] conveyed the February 5 offer to
               Powell. The court, therefore[,] concludes that Powell has failed
               to prove, by a preponderance of the evidence, that his attorney’s
               performance was deficient. Powell has, therefore, failed to meet
               his burden of proof on his claim.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2438 | November 20, 2019   Page 5 of 9
       Appellant’s App. Vol. II at 140-142. 1 Based on those findings and conclusions,

       the court denied Powell’s petition for post-conviction relief. This appeal

       ensued.


                                         Discussion and Decision
[11]   Powell appeals the post-conviction court’s denial of his petition for post-

       conviction relief. As our Supreme Court has stated:


                 “The petitioner in a post-conviction proceeding bears the burden
                 of establishing grounds for relief by a preponderance of the
                 evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).
                 “When appealing the denial of post-conviction relief, the
                 petitioner stands in the position of one appealing from a negative
                 judgment.” Id. at 274. In order to prevail on an appeal from the
                 denial of post-conviction relief, a petitioner must show that the
                 evidence leads unerringly and unmistakably to a conclusion
                 opposite that reached by the post-conviction court. Weatherford v.
                 State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
                 conviction court in this case entered findings of fact and
                 conclusions of law in accordance with Indiana Post-Conviction
                 Rule 1(6). Although we do not defer to the post-conviction
                 court’s legal conclusions, “[a] post-conviction court’s findings
                 and judgment will be reversed only upon a showing of clear
                 error—that which leaves us with a definite and firm conviction
                 that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d
                 102, 106 (Ind. 2000) (internal quotation omitted).


       Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017).




       1
           Our pagination of the Appellant’s Appendix is based on the .pdf pagination.


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2438 | November 20, 2019   Page 6 of 9
[12]   In particular, Powell alleges that the post-conviction court erred when it

       determined that he was not denied the effective assistance of trial counsel. As

       our Supreme Court has explained:


               When evaluating an ineffective assistance of counsel claim, we
               apply the two-part test articulated in Strickland v. Washington, 466
               U.S. 668, 104 S. Ct. 2052, 80 L.Ed. 2d 674 (1984). See Helton v.
               State, 907 N.E.2d 1020, 1023 (Ind. 2009). 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.”
               McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
               Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
               second prong, “the defendant must show prejudice: a reasonable
               probability (i.e. a probability sufficient to undermine confidence
               in the outcome) that, but for counsel’s errors, the result of the
               proceeding would have been different.” Id. (citing Strickland, 466
               U.S. at 694, 104 S. Ct. 2052).


       Campbell v. State, 19 N.E.3d 271, 274 (Ind. 2014). The “[f]ailure to satisfy either

       prong will cause the claim to fail.” French v. State, 778 N.E.2d 816, 824 (Ind.

       2002). On appeal, Powell specifically asserts that he received ineffective

       assistance from his trial counsel because his counsel failed to communicate the

       State’s thirty-six-year plea offer to him and that, had his counsel communicated

       that offer to him, he would have accepted that offer and served thirty-six years

       instead of the forty years to which he ultimately agreed.


[13]   It is well settled that defense counsel has the duty to communicate formal offers

       from the prosecution, and failure to communicate a plea offer to an accused is


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2438 | November 20, 2019   Page 7 of 9
       deficient performance. See Woods v. State, 48 N.E.3d 374, 381 (Ind. Ct. App.

       2015). Powell maintains that “the entire record is devoid of any evidence of

       any effort by Trial Counsel to communicate the offer to Mr. Powell[.]”

       Appellant’s Br. at 8 (quotation marks omitted). We cannot agree.


[14]   Here, Powell’s trial counsel testified that, while he did not specifically recall

       discussing the State’s offer with Powell, anytime he receives a plea offer from

       the State, he “almost immediately go[es] to [his] client and convey[s] what the

       offer is and discuss[es] it.” Tr. Vol. II at 65. He further testified that he

       “[a]lways” leaves the decision of whether to accept State’s offer to his client. Id.

       And Powell’s trial counsel testified that “it would appear” that he discussed the

       State’s thirty-six-year offer with Powell because he responded to that offer with

       a counteroffer, and he “wouldn’t have made a counter-offer without discussing

       the offer” with Powell first. Id. at 71. That testimony is supported by the letters

       that were exchanged between trial counsel and the State, which letters were

       admitted into evidence at the post-conviction hearing. Specifically, those letters

       demonstrate that, on February 5, the State offered a plea agreement in which

       Powell would plead guilty to Counts 1 through 4 in exchange for a thirty-six-

       year sentence. In response, Powell’s counsel responded three days later and

       sent a counteroffer in which Powell agreed to a sentence of twenty-four years.

       But the State did not accept that counteroffer.


[15]   Based on the testimony of Powell’s trial counsel and the exchange of offers and

       counteroffers between trial counsel and the prosecuting attorney, there is

       evidence in the record to support the post-conviction court’s finding that

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2438 | November 20, 2019   Page 8 of 9
       Powell’s trial counsel communicated the State’s thirty-six-year plea offer to

       Powell. Accordingly, Powell has not met his burden to demonstrate that the

       evidence leads unerringly and unmistakably to a conclusion opposite that

       reached by the post-conviction court. See Humphrey, 73 N.E.3d 677, 681. We

       therefore affirm the post-conviction court’s denial of Powell’s petition for post-

       conviction relief.


[16]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2438 | November 20, 2019   Page 9 of 9
