MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Dec 30 2016, 8:32 am
court except for the purpose of establishing                             CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana
Tracy A. Nelson                                          Monika Prekopa Talbot
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert Coyle,                                            December 30, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         36A01-1603-PC-644
        v.                                               Appeal from the Jackson Circuit
                                                         Court
State of Indiana,                                        The Honorable William Vance
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         36C01-1110-PC-3



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 36A01-1603-PC-644 | December 30, 2016      Page 1 of 9
                                      Case Summary
[1]   Appellant-Petitioner Robert Coyle appeals the denial of his petition for post-

      conviction relief (“PCR”). Specifically, Coyle raises the following restated

      issue: whether the post-conviction court erred when it concluded that Coyle’s

      trial counsel was not ineffective for failing to move for a dismissal of the charges

      under Cause No. 36C01-0408-FA-34 (“Cause No. 34”). Because there is no

      evidence that such a motion would have been granted or that Coyle suffered

      any prejudice, the post-conviction court’s denial of Coyle’s PCR petition was

      not clearly erroneous. We affirm.



                                                Facts
[2]   Our memorandum decision in Coyle’s prior direct appeal for the charges in

      Cause No. 36C01-0410-FA-46 (“Cause No. 46”), which was handed down on

      April 10, 2007, instructs us as to the underlying facts leading to this post-

      conviction proceeding.


              In 2004, Coyle was living in a residence in Seymour, Indiana
              with his girlfriend. In August of that year, the Seymour police,
              led by Detective Carl Lamb, executed a search warrant on the
              residence. Based upon the officers’ findings, Coyle and others
              were arrested for dealing cocaine. Coyle was imprisoned at the
              Jackson County jail where he told Ryan Tincher, another
              inmate, of his desire to kill Detective Lamb and his family. Once
              he was released from jail, Tincher told Detective Lamb about
              Coyle’s statements. Coyle had previously shared his aspiration
              to kill Detective Lamb with Melvin Robison, an acquaintance,
              and, while Coyle was incarcerated at the Jackson County jail,

      Court of Appeals of Indiana | Memorandum Decision 36A01-1603-PC-644 | December 30, 2016   Page 2 of 9
              Robison became an inmate there, as well. While an inmate,
              Robison acted as a confidential informant to obtain information
              on Coyle’s plan to kill Detective Lamb and his family. A police
              officer from a neighboring community posed as Robison’s
              contact “on the outside,” and Coyle eventually signed over two
              vehicles as payment for the murders and for the burning of
              Detective Lamb’s home. Based upon the information gathered
              while Coyle was incarcerated, he was charged with three counts
              of conspiracy to commit murder and one count of conspiracy to
              commit arson. . . .


      Coyle v. State, 36A05-0606-CR-294 *1 (Ind. Ct. App. April 10, 2007),
      trans. denied.



                                   Procedural History
[3]   On August 9, 2004, in Cause No. 34, the State charged Coyle with two counts

      of Class A felony dealing in cocaine. On October 13, 2004, in Cause No. 46,

      the State charged Coyle with three counts of Class A felony conspiracy to

      commit murder and one count of conspiracy to commit arson. On December 1,

      2005, in Cause No. 36C01-0512-FA-40 (“Cause No. 40”), the State charged

      Coyle with Class A felony conspiracy to commit murder.


[4]   On March 16, 2006, a jury found Coyle guilty as charged in Cause No. 46 and

      the trial court sentenced him to concurrent sentences of 45 years on each

      conspiracy to commit murder count and a 15-year consecutive sentence on the

      conspiracy to commit arson count. Coyle filed a direct appeal arguing that

      there was insufficient evidence to sustain his convictions and that the trial court

      erroneously sentenced him to an aggregate term of 60 years because his crimes

      Court of Appeals of Indiana | Memorandum Decision 36A01-1603-PC-644 | December 30, 2016   Page 3 of 9
      constituted a single episode of criminal conduct. Consequently, Coyle argued

      that his sentence should have been capped at 55 years.


[5]   This Court affirmed Coyle’s convictions in Cause No. 46 in a memorandum

      opinion on April 10, 2007, and the Indiana Supreme Court subsequently denied

      transfer. On September 10, 2007, Coyle pled guilty to one count of Class A

      felony dealing in cocaine under Cause No. 34, in exchange for a 20-year

      sentence and for the dismissal of the other Cause No. 34 drug charge and the

      conspiracy to commit murder charge under Cause No. 40. Per the agreement,

      the 20-year sentence under Cause No. 34 would be consecutive to the Cause

      No. 46 sentence. On October 5, 2007, Coyle was sentenced in Cause No. 34 in

      accordance with the plea agreement.


[6]   On May 5, 2008, Coyle, pro se, filed a petition for PCR, which was later

      amended by counsel, alleging that his appellate counsel was ineffective for not

      arguing that Coyle should not have been convicted of four counts of conspiracy

      when there was only evidence of one agreement. Coyle and the State

      subsequently filed a joint motion to dismiss the amended petition for PCR in

      exchange for vacating three convictions under Cause No. 46 along with the

      sentences imposed upon them. The PCR court granted the joint motion on

      August 24, 2011.


[7]   On October 13, 2011, Coyle, pro se, filed a petition for PCR in Cause No. 34.

      The petition was amended twice by counsel. In the final amended petition filed

      on April 13, 2014, Coyle claimed that his trial attorneys were ineffective for


      Court of Appeals of Indiana | Memorandum Decision 36A01-1603-PC-644 | December 30, 2016   Page 4 of 9
      failing to move for the dismissal of his charges in Cause No. 34 because those

      charges should have been joined with the charges under Cause No. 46. Coyle

      further alleged that the State was barred from prosecuting him in a separate

      cause and he was prejudiced by his attorneys’ ineffectiveness because he pled

      guilty to a charge that the State was barred from prosecuting. On March 1,

      2016, the post-conviction court denied Coyle relief.



                            Discussion and Decision
                            I.         Standard of Review
[8]   Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,

      745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his

      claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);

      Stevens, 770 N.E.2d at 745. When appealing from a denial of a petition for

      post-conviction relief, a petitioner must convince this court that the evidence,

      taken as a whole, “leads unmistakably to a conclusion opposite that reached by

      the post-conviction court.” Stevens, 770 N.E.2d at 745. “It is only where the

      evidence is without conflict and leads to but one conclusion, and the post-

      conviction court has reached the opposite conclusion, that its decision will be

      disturbed as contrary to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct.

      App. 2004), trans. Denied. The post-conviction court is the sole judge of the

      weight of the evidence and the credibility of the witnesses. Fisher v. State, 810

      N.E.2d 674, 679 (Ind. 2004). We therefore accept the post-conviction court’s



      Court of Appeals of Indiana | Memorandum Decision 36A01-1603-PC-644 | December 30, 2016   Page 5 of 9
       findings of fact unless they are clearly erroneous but give no deference to its

       conclusions of law. Id.


           II.          Ineffective Assistance of Trial Counsel
[9]    Post-conviction proceedings do not afford a petitioner with a super-appeal, and

       not all issues are available. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001).

       A claim of ineffective assistance of trial counsel is properly presented in a post-

       conviction proceeding if such claim is not raised on direct appeal. Id. A claim

       of ineffective assistance of counsel is an appropriate issue for post-conviction

       review. Id.


[10]   “The right to effective counsel is rooted in the Sixth Amendment of the United

       States Constitution.” Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “The

       Sixth Amendment recognizes the right to the assistance of counsel because it

       envisions counsel’s playing a role that is critical to the ability of the adversarial

       system to produce just results.” Strickland v. Washington, 466 U.S. 668, 685, 104

       S.Ct. 2052, 80 L.Ed.2d 674 (1984). We evaluate such claims under the two-part

       test announced in Strickland. Wheeler v. State, 15 N.E.3d 1126, 1129 (Ind. Ct.

       App. 2014). A successful claim for ineffective assistance of counsel must satisfy

       two components:


               First, 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.
               Second, the defendant must show prejudice: a reasonable
               probability (i.e. a probability sufficient to undermine confidence

       Court of Appeals of Indiana | Memorandum Decision 36A01-1603-PC-644 | December 30, 2016   Page 6 of 9
               in the outcome) that, but for counsel’s errors, the result of the
               proceeding would have been different. McCary v. State, 761
               N.E.2d 389, 392 (Ind. 2002) (citing Strickland v. Washington, 466
               U.S. 668, 687–88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
               When considering the first prong of the Strickland test, deficient
               performance, the question is not whether the attorney could—or
               even should—have done something more. Rather, the question
               is whether the attorney’s performance amounted to a reasonably
               competent defense or did not. As a result, the inquiry must focus
               on what the attorney actually did, and “[i]solated mistakes, poor
               strategy, inexperience, and instances of bad judgment do not
               necessarily render representation ineffective.” Timberlake v. State,
               753 N.E.2d 591, 603 (Ind.2001). Moreover, because “[c]ounsel
               is afforded considerable discretion in choosing strategy and
               tactics, ... [a] strong presumption arises that counsel rendered
               adequate assistance.” Id.


       Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007).


[11]   Coyle argues that his trial counsel was ineffective for failing to move to dismiss

       his charges under Cause No. 34. According to Coyle, the charges in the drug

       case and the conspiracy to commit murder case had to be joined because they

       were a series of connected acts. Due to the fact they were not joined by the

       State, Coyle argues that the drug charges under Cause No. 34 should been have

       dismissed on a motion by his trial counsel. Coyle further asserts that as a result

       of this deficient performance, he is serving twenty years on a conviction the

       State was barred from prosecuting.


[12]   The post-conviction court rejected Coyle’s argument on the ground that his trial

       counsel’s failure to move to dismiss the drug charges under Cause No. 34 was


       Court of Appeals of Indiana | Memorandum Decision 36A01-1603-PC-644 | December 30, 2016   Page 7 of 9
not deficient. Specifically, the post-conviction court entered the following

findings of facts and conclusions thereon:


        6. Petitioner was not entitled to dismissal of the underlying drug
        case, Jackson Circuit Court Cause No. 36C01-0408-FA-34,
        because those cases are not of a similar character. The cases are
        not part of a single scheme or plan because they are not
        connected by a distinctive nature, they do not share a common
        modus operandi and they do not share a common motive.


        7. Even if Petitioner was correct, and the case was in fact barred
        from prosecution, the Petitioner cannot show that there was
        prejudice.


        8. The Strickland standard for relief for ineffective assistance of
        counsel has two prongs, both of which must be met in order for a
        petition for post-conviction relief to succeed. The second prong
        of [Strickland] requires a showing of prejudice.


        9. Petitioner’s claim of ineffective assistance of counsel rests
        upon the assertion that the State was barred from prosecuting the
        underlying cause due to the disposition of the State’s case in
        Jackson Circuit Court Cause No. 36C01-0410-FA-40.


        10. The Petitioner cannot show prejudice because he cannot
        show that, but for counsel’s unprofessional errors, the result of
        the proceeding would have been different.


        11. The testimony presented at the fact finding hearing shows
        that, even if the drug case and the conspiracy case were
        sufficiently related to the extent that they should have been
        joined, counsel would have moved to sever those cases.


PC App. 188-92.
Court of Appeals of Indiana | Memorandum Decision 36A01-1603-PC-644 | December 30, 2016   Page 8 of 9
[13]   The post-conviction court’s findings, based upon the Strickland test, were

       supported by the record. The events surrounding the drug and conspiracy

       charges occurred several months apart in different locations. The post-

       conviction court found that there was no evidence that the charges arose from a

       single scheme or plan, were connected by a distinctive nature, or share a

       common motive. Counsel admitted to the post-conviction court that even if the

       cases were sufficiently related such that they could have been joined, counsel

       would have moved to sever those cases. Additionally, there is no evidence that

       a motion to dismiss in Cause No. 34 would have been granted had one been

       filed by his trial counsel.


[14]   The evidence does not compel a decision opposite that reached by the post-

       conviction court. Consequently, it was not clearly erroneous for the post-

       conviction court to conclude that Coyle’s trial counsel’s performance was not

       deficient and Coyle was not prejudiced by his trial counsel’s failure to file a

       motion to dismiss.


[15]   We affirm the post-conviction court’s judgment.


       Vaidik, C.J., and Brown, J. concur.




       Court of Appeals of Indiana | Memorandum Decision 36A01-1603-PC-644 | December 30, 2016   Page 9 of 9
