MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                               Apr 27 2018, 8:10 am
this Memorandum Decision shall not be
                                                                         CLERK
regarded as precedent or cited before any                            Indiana Supreme Court
                                                                        Court of Appeals
court except for the purpose of establishing                              and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT, PRO SE                                         ATTORNEYS FOR APPELLEE
Antwaun Baker                                             Curtis T. Hill, Jr.
Bunker Hill, Indiana                                      Attorney General of Indiana
                                                          Jodi Kathryn Stein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Antwaun Darez Baker,                                      April 27, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1608-PC-1882
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable David Seiter,
Appellee-Plaintiff                                        Commissioner
                                                          Trial Court Cause No.
                                                          49G20-1206-PC-42191



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1882 | April 27, 2018        Page 1 of 16
                                        Statement of the Case
[1]   Antwaun Darez Baker (“Baker”), pro se, appeals the post-conviction court’s

      denial of his petition for post-conviction relief, in which he sought to set aside

      his guilty plea to Class A felony dealing in cocaine based on a claim of

      ineffective assistance of guilty plea counsel. Concluding that Baker has failed to

      meet his burden of showing that the post-conviction court erred by denying

      relief on his allegation of ineffective assistance of counsel, we affirm the post-

      conviction court’s judgment.


[2]   We affirm.


                                                      Issue
            Whether the post-conviction court erred by denying Baker’s petition
            for post-conviction relief.

                                                      Facts
[3]   In early 2012, the Indianapolis Metropolitan Police Department’s (“IMPD”)

      Metro Drug Task Force (“Drug Task Force”) worked with a confidential

      informant who made two controlled buys of cocaine from Baker in Marion

      County. On February 13, 2012, Baker sold over five grams of cocaine to the

      confidential informant, and on March 29, 2012, he sold over twenty-seven

      grams of cocaine. Special agents from the Drug Enforcement Agency (“DEA”)

      assisted the Drug Task Force with the March controlled buy.


[4]   A few months later, on June 20, 2012, detectives from the Drug Task Force,

      including Detective Dale Young (“Detective Young”) arrested Baker at his

      Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1882 | April 27, 2018   Page 2 of 16
      home in Hendricks County. At the time of his arrest, Baker was in possession

      of more than thirty grams of cocaine. Baker and his wife signed a consent to

      search their house.


[5]   On June 21, 2012, the State charged Baker in Marion County with two counts

      of Class A felony dealing in cocaine and two counts of Class C felony

      possession of cocaine based on the two controlled buys. Baker was represented

      by attorneys, Kim Devane (“Attorney Devane”) and Stephen Gray (“Attorney

      Gray”).1


[6]   In July 2012, Attorney Devane engaged in plea negotiations with a Marion

      County deputy prosecutor (“the deputy prosecutor”). Thereafter, the deputy

      prosecutor sent Attorney Devane an email to memorialize their discussions,

      which included an agreement for Baker to plead guilty to one count of Class A

      felony dealing in cocaine in exchange for the State’s agreement to dismiss the

      remaining three charges. The agreement also called for an executed sentence of

      twenty-five (25) years with twenty (20) years to be served in the Indiana

      Department of Correction and five (5) years open to placement after argument

      by the parties. The deputy prosecutor’s email also indicated that Baker’s

      rejection of the proposed plea agreement would lead to additional charges being

      filed against Baker in Hendricks County and in federal court, as well as a charge

      being filed against Baker’s wife for her involvement with Baker’s drug deals.




      1
       Baker initially hired Attorney Devane to represent him, and he later consulted with and then hired Attorney
      Gray to also represent him.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1882 | April 27, 2018           Page 3 of 16
      The email indicated that the Hendricks County charge would be for Baker’s

      possession of the thirty grams of cocaine at the time of his arrest and that the

      federal charge would be for his drug deals in Marion County. The email also

      indicated that the Marion County charges would be dismissed upon the filing of

      a federal indictment.


[7]   Thereafter, Attorney Gray requested that the deputy prosecutor include a

      specific provision in the plea agreement that no additional charges, State or

      federal, would be filed against Baker or his wife if Baker were to plead guilty.

      The deputy prosecutor agreed and added the following requested provision:

      “The State will not file additional charges in Hendricks County, against the

      spouse of the defendant, or pursue federal charges.” (Ex. Vol. at 37). Attorney

      Devane and Attorney Gray advised Baker that he should accept the proffered

      plea agreement. They believed that the plea agreement was in Baker’s best

      interest given the weight of the evidence against him and the greater penal

      consequences that he would face with convictions in the federal system and in

      Hendricks County. Baker agreed to plead guilty pursuant to the plea

      agreement.


[8]   In September 2012, the trial court held a guilty plea hearing. When the trial

      court asked Baker’s counsel about the unique plea agreement provision

      precluding additional charges, Attorney Gray gave the trial court the following

      explanation:


              I’m aware of that provision and in fact that was something that
              [the deputy prosecutor] and I discussed in depth. There were

      Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1882 | April 27, 2018   Page 4 of 16
              apparently federal agents who were involved in this investigation.
              And [the deputy prosecutor] spoke to them about this matter.
              And he has assurances from the U.S. Attorney[’]s office that if
              Mr. Baker took this plea agreement as proposed, that they would
              not pursue federal charges. Likewise the same is true with
              Hendricks County. At the time of Mr. Baker’s arrest, which was
              for conduct I believe that had occurred earlier that June, I think
              that it occurred in February, at the time of his arrest, they found
              some additional cocaine on him in Hendricks County. And it[’]s
              those charges that they have agreed not to file. . . .

                                                    *****

              I understand the awkwardness of it. I asked --- I specifically
              asked for that language. [The deputy prosecutor] did that. And
              I’m comfortable with it.

      (Ex. Vol. at 22-23). Attorney Gray also informed the trial court that he and

      Attorney Devane had discussed the plea agreement with Baker and that they

      had Baker consult with other attorneys who were knowledgeable in federal law,

      including Tim Burns and Jack Crawford. Additionally, Attorney Gray stated

      that it was “the consensus that this plea, although . . . harsh in terms of twenty-

      five executed years, . . . [wa]s better than the alternative of facing charges at the

      U.S. Attorney’s office and additional A Felony charges in Hendricks County”

      for which Attorney Gray “did not see a defense to those charges in Hendricks

      County.” (Ex. Vol. at 31). Thus, Attorney Gray concluded that “there [wa]s

      no question in [his] mind that this plea agreement [wa]s in [Baker’s] best

      interest.” (Ex. Vol. at 32).


[9]   At the conclusion of the hearing, Baker pled guilty to one count of Class A

      felony dealing in cocaine. Thereafter, the trial court sentenced Baker, pursuant

      Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1882 | April 27, 2018   Page 5 of 16
       to the plea agreement, to twenty-five (25) years with twenty (20) years to be

       served in the Indiana Department of Correction and five (5) years to be served

       in community corrections on home detention. No further State or federal

       charges were filed against Baker or his wife.


[10]   A few years later, in May 2014, Baker filed a pro se petition for post-conviction

       relief and then filed an amended pro se petition in August 2015. He alleged that

       he had received ineffective assistance of trial counsel. In relevant part, Baker

       alleged that his attorneys had given him “erroneous advice” when they advised

       him to plead guilty in exchange for the State’s promise that no further State or

       federal charges would be filed against him. (App. Vol. 2 at 16, 27). Baker

       argued that the advice was erroneous because the deputy prosecutor in his case

       did not have the authority to file federal charges or State charges in another

       county, and he alleged that he would not have pleaded guilty if he had known

       that the deputy prosecutor did not have the authority to file these additional

       charges.


[11]   The post-conviction court held post-conviction hearings on November 6,

       November 20, and December 4, 2015. Baker represented himself. He testified

       on his own behalf and presented testimony from his wife and from Attorney

       Devane, Attorney Gray, and Detective Young. Baker also introduced various

       exhibits, which included among others, his plea agreement, the transcript of his

       guilty plea hearing, and a probable cause affidavit.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1882 | April 27, 2018   Page 6 of 16
[12]   When Attorney Devane and Attorney Gray testified, they explained their

       strategy behind why they had recommended Baker to plead guilty. Attorney

       Gray and Attorney Devane testified that Baker could have been charged in

       Hendricks County and indicted in the federal system. They pointed out that he

       had sold cocaine on two occasions to a confidential informant and that he had

       cocaine in his possession when he was arrested in Hendricks County. Attorney

       Devane testified that that she had spoken with a DEA Agent and that the

       “federal marshals and the DEA were chomping at the bit” to indict Baker. (Tr.

       Vol. 2 at 41). Attorney Devane also testified that she had recommended

       various attorneys with whom Baker could speak about the federal sentencing

       guidelines.


[13]   Attorney Gray testified that “there was no question in [his] mind that had

       [Baker] not signed the plea, [he] would have been indicted by the federal

       government.” (Tr. Vol. 3 at 22). Attorney Gray practiced federal law and

       testified that he believed Baker would have received a harsher sentencing under

       the federal sentencing guidelines. Specifically, he explained that Baker would

       have had to serve eighty-five percent of any federal sentence compared to only

       fifty percent for a state sentence. (Tr. Vol. 3 at 31). Attorney Gray opined that

       the State would have been able to prove the Marion County charges against

       Baker beyond a reasonable doubt, and he testified that, upon his investigation

       of the potential of a charge in Hendrick County charge, he also believed that

       Baker could have been charged with possession in Hendricks County. (Tr. Vol.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1882 | April 27, 2018   Page 7 of 16
       3 at 31). Attorney Gray testified that he believed that the plea agreement was in

       Baker’s “best interest[.]” (Tr. Vol. 3 at 10).


[14]   Thereafter, the post-conviction court entered an order denying post-conviction

       relief to Baker.2 In regard to Baker’s claim of ineffective assistance of counsel,

       the post-conviction court found that Baker had failed to meet his burden of

       showing that his two attorneys had rendered deficient performance. Baker now

       appeals.


                                                      Decision
[15]   At the outset, we note that Baker has chosen to proceed pro se. Pro se litigants

       are held to the same legal standards as licensed attorneys. Evans v. State, 809

       N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. Thus, pro se litigants are

       bound to follow the established rules of procedure and must be prepared to

       accept the consequences of their failure to do so. Id. “We will not become a

       party’s advocate, nor will we address arguments that are inappropriate,

       improperly expressed, or too poorly developed to be understood.” Barrett v.

       State, 837 N.E.2d 1022, 1030 (Ind. Ct. App. 2005), trans. denied.




       2
        The post-conviction court signed the post-conviction order on April 5, 2016 but did not enter it into the
       chronological case summary until July 20, 2016.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1882 | April 27, 2018             Page 8 of 16
[16]   Baker appeals the post-conviction court’s order denying post-conviction relief

       on his claim of ineffective assistance of trial counsel. 3 Our standard of review in

       post-conviction proceedings is well settled.


                We observe that post-conviction proceedings do not grant a
                petitioner a “super-appeal” but are limited to those issues
                available under the Indiana Post-Conviction Rules. Post-
                conviction proceedings are civil in nature, and petitioners bear
                the burden of proving their grounds for relief by a preponderance
                of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner
                who appeals the denial of PCR faces a rigorous standard of
                review, as the reviewing court may consider only the evidence
                and the reasonable inferences supporting the judgment of the
                post-conviction court. The appellate court must accept the post-
                conviction court’s findings of fact and may reverse only if the
                findings are clearly erroneous. If a PCR petitioner was denied
                relief, he or she must show that the evidence as a whole leads
                unerringly and unmistakably to an opposite conclusion than that
                reached by the post-conviction court.

       Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal case

       citations omitted), trans. denied. Additionally, “[w]e will not reweigh the

       evidence or judge the credibility of the witnesses; we examine only the

       probative evidence and reasonable inferences that support the decision of the

       post-conviction court.” Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007),

       reh’g denied, cert. denied.




       3
        Baker’s post-conviction petitions contained multiple allegations of ineffective assistance of counsel;
       however, he raises only one allegation of ineffectiveness on appeal.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1882 | April 27, 2018              Page 9 of 16
[17]   Turning to Baker’s post-conviction claim regarding ineffective assistance of

       counsel, we note that such a claim 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 such that “‘there is a reasonable

       probability that, but for counsel’s unprofessional errors, the result of the

       proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444

       (Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984), reh’g

       denied), reh’g denied, cert. denied. “A reasonable probability arises when there is a

       ‘probability sufficient to undermine confidence in the outcome.’” Grinstead v.

       State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466 U.S. at 694).

       Failure to satisfy either of the two Strickland prongs will cause an ineffective

       assistance of counsel claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind.

       2002).


[18]   The United States Supreme Court has held that the two-part test set forth

       in Strickland applies to a petitioner’s challenge to a guilty plea based on alleged

       ineffective assistance of counsel. See Hill v. Lockhart, 474 U.S. 52, 57-58 (1985).

       The Hill Court explained that, for a claim of ineffective assistance of guilty plea

       counsel, the first prong of Strickland (the deficient performance prong) is

       substantially the same and focuses on attorney competence, while the second

       Strickland prong (the prejudice prong) “focuses on whether counsel’s

       constitutionally ineffective performance affected the outcome of the plea

       process.” Id. at 59. “In other words, in order to satisfy the ‘prejudice’

       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1882 | April 27, 2018   Page 10 of 16
       requirement, the defendant must show that there is a reasonable probability

       that, but for counsel’s errors, he would not have pleaded guilty and would have

       insisted on going to trial.” Id. See Lee v. United States, 137 S. Ct. 1958, 1964

       (2017). See also Segura v. State, 749 N.E.2d 496, 501-07 (Ind. 2001) (discussing

       the Hill Court’s prejudice prong requirement, and setting forth a distinction

       between: (1) prejudice resulting from counsel’s failure to advise the defendant

       on an issue that impairs or overlooks a defense; and (2) prejudice resulting from

       an incorrect advisement of penal consequences).


[19]   We will not address the prejudice prong of Baker’s claim because he did not

       establish the first required prong of his ineffective assistance of counsel claim

       (i.e., showing that his counsels’ performances were deficient by falling below an

       objective standard of reasonableness based on prevailing professional norms).

       See French, 778 N.E.2d at 824 (explaining that a petitioner’s failure to satisfy

       either the deficient performance prong or the prejudice prong will cause an

       ineffective assistance of counsel claim to fail). 4




       4
         We note, however, that there is caselaw suggesting that there are some questions about whether the Segura
       Court properly interpreted Hill and whether our Court is properly applying the Segura’s prejudice standard for
       ineffective assistance of guilty plea counsel instead of the analysis in Hill and Lee. See Lee, 137 S. Ct. at 1965
       (declining to adopt a per se rule that a defendant with no viable defense cannot show prejudice from the
       denial of his right to trial under such circumstance and noting that the “inquiry . . . prescribed in Hill v.
       Lockhart focuses on a defendant’s decisionmaking, which may not turn solely on the likelihood of conviction
       after trial”); Payne v. Brown, 662 F.3d 825, 828 (7th Cir. 2011) (disagreeing with the holding in Segura
       regarding the prejudice requirement that a petitioner would need to show a more favorable result at trial);
       Manzano v. State, 12 N.E.3d 321, 326 n. 1 (Ind. Ct. App. 2014) (rejecting the Payne Court’s interpretation and
       continuing to apply the Segura standard because “the Seventh Circuit’s decisions on questions of federal law
       are not binding on state courts”); Bobadilla v. State, -- N.E.3d --, 2018 WL 543066 (Ind. Ct. App. Jan. 25,
       2018) (where a majority panel of our Court distinguished Lee and applied the Segura prejudice requirement,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1882 | April 27, 2018               Page 11 of 16
[20]   Turning to Baker’s argument on appeal, we note that when reviewing a claim

       that counsel’s performance was deficient, we consider the following:


                There is a strong presumption that counsel rendered adequate
                assistance and made all significant decisions in the exercise of
                reasonable professional judgment. Counsel is afforded
                considerable discretion in choosing strategy and tactics, and these
                decisions are entitled to deferential review. Isolated mistakes,
                poor strategy, inexperience, and instances of bad judgment do
                not necessarily render representation ineffective.

       Stevens v. State, 770 N.E.2d 739, 746-47 (Ind. 2002) (internal citations omitted),

       reh’g denied, cert. denied. “Few points of law are as clearly established as the

       principle that ‘[t]actical or strategic decisions will not support a claim of

       ineffective assistance.’” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)

       (quoting Sparks v. State, 499 N.E.2d 738, 739 (Ind. 1986)), reh’g denied.


[21]   Baker contends that his attorneys rendered ineffective assistance by advising

       him to plead guilty in exchange for the deputy prosecutor’s promise that there

       would be no further State or federal charges against him or his wife. Baker

       contends that counsels’ advice was “erroneous” and “bad legal advice” because

       the deputy prosecutor did not have the authority to file these additional charges.

       (Baker’s Br. 9). Yet, at the same time, Baker “does not dispute that the federal




       and the dissent disagreed with the majority’s holding that the petitioner had failed to show prejudice and
       stated that the petitioner had met his burden under Lee) (Vaidik, C.J., dissenting), trans. pending.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1882 | April 27, 2018            Page 12 of 16
       authorities and the Hendricks County prosecutor could have possibly filed

       charges against him if they wanted to.” (Baker’s Br. 14).


[22]   Baker has failed to show that his counsels’ performances were deficient or that

       they fell below an objective standard of reasonableness when they advised him

       to plead guilty. Indeed, the record before us reveals that Baker’s attorneys

       made a strategic decision when advising Baker to plead guilty. While in

       Marion County, Baker sold over five grams of cocaine to a confidential

       informant on one day and then sold over twenty-seven grams of cocaine to a

       confidential informant on a different day, during which time the DEA was

       involved in the investigation. When Baker was arrested in Hendricks County,

       he had more than thirty grams of cocaine in his possession.5 After Baker was

       charged in Marion County with two counts of Class A felony dealing in cocaine

       and two counts of Class C felony possession of cocaine, Attorney Devane

       engaged in plea negotiations with the deputy prosecutor. They reached a plea

       agreement wherein Baker would plead guilty to one Class A felony count in

       exchange for the dismissal of the remaining three charges and for a set executed

       sentence of twenty-five years, which was below the advisory sentence for a




       5
         In its order, the post-conviction court made a finding that “[w]hen [Baker] was arrested in Hendricks
       County for this case, he and his wife both gave Hendricks County law enforcement officers permission to
       search the wife’s house. Illegal drugs were apparently found.” (App. Vol. 2 at 76). Baker argues that this
       finding was clearly erroneous because: (1) it was IMPD and Hamilton County Sheriff’s Department—not
       Hendricks County law enforcement—who arrested him; and (2) the drugs found in his possession that day
       were in his pocket—not in wife’s house. Thus, Baker does not dispute that he was in possession of cocaine in
       Hendricks County, nor does he dispute that his possession of the drug would have formed the basis of a
       felony charge in Hendricks County. Therefore, we will not further address Baker’s challenge to the trial
       court’s finding.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1882 | April 27, 2018         Page 13 of 16
       Class A felony. Baker’s attorneys were aware that the police had found Baker

       in possession of a large amount of cocaine in Hendricks County when they

       arrested him, and Attorney Devane knew that the “federal marshals and the

       DEA were chomping at the bit” to indict Baker. (Tr. Vol. 2 at 41). Baker’s

       attorneys were aware that Baker’s rejection of the guilty plea agreement could

       result in additional charges in State court and in a federal indictment. The

       attorneys, along with Baker, consulted other attorneys knowledgeable in federal

       law, and they concluded that Baker had the potential of receiving a harsher

       sentencing under the federal sentencing guidelines. Attorney Gray requested

       that the deputy prosecutor include a specific provision in the plea agreement

       that no charges, State or federal, would be filed against Baker or his wife if

       Baker were to plead guilty, and the deputy prosecutor agreed. Based on all

       these circumstances, Attorney Devane and Attorney Gray advised Baker to

       plead guilty pursuant to the plea agreement. Baker then pled guilty to the Class

       A felony in Marion County, and, as set out in the plea agreement, no further

       state or federal charges were filed against Baker or his wife.


[23]   In regard to Baker’s ineffective assistance of trial counsel claim that he now

       raises on appeal, the post-conviction court determined that Baker had failed to

       meet his burden of showing that the advice that he had received from counsel

       was incorrect and failed to show that counsels’ representation fell below an

       objective standard of reasonableness. Because Baker has failed to show that the

       evidence as a whole leads unerringly and unmistakably to an opposite




       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1882 | April 27, 2018   Page 14 of 16
conclusion than that reached by the post-conviction court, we affirm the post-

conviction’s judgment.




Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1882 | April 27, 2018   Page 15 of 16
[24]   Affirmed.6


       Riley, J., and Robb, J., concur.




       6
         Baker also makes a fleeting argument that his guilty plea was not knowingly or voluntary made because his
       trial counsel rendered ineffective assistance. However, Baker conflates the two arguments. The
       voluntariness of a plea is distinct from a claim of ineffective assistance of counsel, and the two claims are
       reviewed under different standards. See Hanks v. State, 71 N.E.3d 1178, 1189 (Ind. Ct. App. 2017), trans.
       denied. Our review of the voluntariness of a guilty plea “focuses on whether the defendant knowingly and
       freely entered the plea, in contrast to ineffective assistance, which turns on the performance of counsel and
       resulting prejudice.” State v. Moore, 678 N.E.2d 1258, 1266 (Ind. 1997), reh’g denied, cert. denied. Baker’s
       involuntary plea argument is waived because he did not provide a cogent argument and did not support the
       contention with citation to relevant authority. See Ind. App. Rule 46(A)(8)(a); see also Cooper v. State, 854
       N.E.2d 831, 834 n.1 (Ind. 2006) (holding that the defendant’s contention was waived because it was
       “supported neither by cogent argument nor citation to authority”).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1882 | April 27, 2018           Page 16 of 16
