                                                                                 FILED
                                                                             Jan 16 2018, 8:53 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Stephen T. Owens                                           Curtis T. Hill, Jr.
Public Defender of Indiana                                 Attorney General of Indiana
Anne C. Kaiser                                             Lyubov Gore
Deputy Public Defender                                     Deputy Attorney General
Indianapolis, Indiana                                      Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Bradford M. Crowder,                                       January 16, 2018
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           02A03-1704-PC-824
        v.                                                 Appeal from the Allen Superior
                                                           Court
State of Indiana,                                          The Honorable John F. Surbeck,
Appellee-Respondent.                                       Jr., Judge
                                                           Trial Court Cause No.
                                                           02D05-1209-PC-164



Brown, Judge.




Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018                           Page 1 of 24
[1]   Bradford M. Crowder appeals the denial of his petition for post-conviction

      relief. He raises four issues which we consolidate as whether the post-

      conviction court erred in denying his petition. We affirm in part and reverse in

      part.


                                       Facts and Procedural History

[2]   On April 19, 2011, the State charged Crowder with Count I, child molesting as

      a class A felony, and other counts including child molesting as a class C felony,

      three counts of sexual misconduct with a minor as class B felonies, three counts

      of sexual misconduct with a minor as class C felonies, four counts of child

      exploitation as class C felonies, and vicarious sexual gratification as a class D

      felony.


[3]   On August 12, 2011, Crowder entered a plea agreement, which stated:

      “COMES NOW the State of Indiana by Karen E. Richards, Prosecuting

      Attorney, 38th Judicial Circuit, pursuant to I.C. 35-35-3-3, and respectfully

      notifies the Court . . . .” Appellant’s Appendix Volume II at 59. The

      agreement then listed ten numbered items which each had a line preceding the

      item. The first item indicated that Crowder would plead guilty to all of the

      charges except for child molesting as a class A felony, and the line preceding

      the item was not initialed. Item 2, which had a line containing no initials,

      provided:


              That at sentencing the Defendant, and Defendant’s attorney, and
              the State may present facts and argument, but under all
              circumstances the Court shall have the final and full authority to

      Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018   Page 2 of 24
        impose the sentence it deems proper, including the minimum and
        maximum allowed by Indiana law. Nothing in this agreement
        shall be construed to limit any victim privilege or right provided
        by law or the discretion of the Court.


Id. The line preceding item 6 which discussed the possibility of deportation was

initialed by Crowder. Item 9, which had a line containing no initials, stated:

“The Defendant knowingly, intelligently and voluntarily waives his/her right to

challenge the reasonableness of the sentence received in this case under

Appellate Rule 7(B). Defendant also knowingly, intelligently and voluntarily

waives his/her right to challenge the sentence on the basis that it is erroneous.”

Id. at 60. Item 10, which had a line containing no initials, stated: “At

sentencing the State agrees to dismiss COUNT I, CHILD MOLESTING, a

CLASS A FELONY.” Id. Crowder and his counsel signed a document stating:


        I, Bradford M. Crowder, represent that I am the defendant and
        that I have read this plea agreement or I have had my attorney
        read it to me. I represent that I understand the plea agreement
        and accept same voluntarily and without force, threat or other
        promises from anyone (other than the plea agreement).


        I further understand that I have a right to a speedy, public trial by
        court or by jury in the county in which the offense allegedly
        occurred; I have a right to require witnesses to be present at any
        hearing or at the trial for the purpose of testifying on my behalf
        and at my request subpoenas will be issued by the court requiring
        witnesses to appear for me; and, I have a right to remain silent
        and that I cannot be required to give any testimony or make any
        statement against myself to anyone. I understand that this plea
        of guilty waives (gives up) the aforesaid rights.


Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018   Page 3 of 24
      Id. at 61.


[4]   Also on August 12, 2011, the court held a hearing. Crowder stated that he had

      never been treated for any mental illness and had not suffered from a mental or

      emotional disability. He stated that he was not under the influence of alcohol

      or any drugs and that it was his intention to enter a plea of guilty. The court

      explained Crowder’s rights, and Crowder indicated that he understood he

      would be giving up those rights by pleading guilty. The court read the plea

      agreement, including the provisions that Crowder “knowingly, intelligently and

      voluntarily waives his right to challenge the reasonableness of the sentence

      received in this case under Appellate Rule 7(B)” and “also knowingly,

      intelligently and voluntarily waives his right to challenge the sentence on the

      basis that it is erroneous.” Guilty Plea Transcript at 17. Crowder indicated that

      he understood he was giving up his right to appeal his sentence. He indicated

      that he had not received any promises other than the plea agreement in order to

      induce him to plead guilty, that no one had forced or threatened him to induce

      him to plead guilty, and that pleading guilty was his own free and voluntary act.


[5]   On September 30, 2011, the court held a sentencing hearing. Crowder’s

      counsel stated:


              We would submit that in October to January a time period
              during which these offenses occurred should represent an episode
              of single episode of criminal conduct and at the very least the
              non-child molesting laded [sic] allegations we would concede
              that that would be considered violent in nature so that one could
              be ran consecutively. However, the remainder of these charges

      Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018   Page 4 of 24
              should based [sic] upon his single episode of criminal conduct we
              would submit should be ran concurrently and further that, that
              means that the combined sentence should not exceed what would
              be the next highest, the advisory on the next highest which would
              be the A so we would submit that a thirty (30) years cap here is in
              play.

      Sentencing Transcript at 8. The prosecutor stated that Count I, child molesting

      as a class A felony, was dismissed because


              [S.] came in to my office and told me that while the abuse began
              when she was thirteen (13) there was more of the grooming
              techniques. He did not actually begin putting his penis in her
              mouth till she turned fourteen (14) and that’s why that charge is
              dismissed that it started with him coming in and fondling her and
              touching her and grooming her and it was after she turned
              fourteen (14) that he began the more, more heinous sexual acts.
              And that’s why that count was dismissed and why he pled guilty
              to the other charges.


      Id. at 15-16.


[6]   The court found Crowder’s guilty plea and acceptance of responsibility as

      mitigating circumstances. The court stated:


              Your attorney has further asked that I consider that these
              offenses be considered a single episode of conduct to justify
              concurrent sentencing and I think the case law clearly indicates
              that that is not correct. I certainly understand your Attorneys
              [sic] advancement of that argument but the case law does not
              support it. It’s a series of events closely related in time, place and
              circumstances that makes something a series of single episode of
              conduct and this is clearly not one (1) instance. I don’t know
              how many times you molested your daughter but it certainly
              wasn’t once, or twice or even three (3) times.
      Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018   Page 5 of 24
      Id. at 25. It found Crowder’s criminal record and the extraordinary impact on

      Crowder’s daughter as aggravators.


[7]   The court sentenced Crowder to four years for child molesting as a class C

      felony, ten years each for the three counts of sexual misconduct with a minor as

      class B felonies, four years for each of the two counts of sexual misconduct with

      a minor as class C felonies, one year and 183 days for each of the two counts of

      vicarious sexual gratification as class D felonies, and four years for each of the

      four counts of child exploitation as class C felonies. The court ordered the

      sentences to be served consecutive to each other for an aggregate sentence of

      sixty-one years.


[8]   On September 17, 2012, Crowder filed a petition for post-conviction relief. On

      June 26, 2015, the trial court entered an order granting Crowder’s motion for

      permission to file a belated appeal and holding his petition for post-conviction

      relief in abeyance. In his appellate brief, Crowder argued that his sentence was

      inappropriate. On October 7, 2015, the State filed a motion to dismiss arguing

      that Crowder waived the right to appeal the appropriateness of his sentence in

      his plea agreement and because Crowder should have raised his challenge to the

      validity of his plea agreement by filing a petition for post-conviction relief. On

      November 20, 2015, this Court granted the State’s motion to dismiss the appeal

      with prejudice. On January 22, 2016, this Court denied Crowder’s petition for

      rehearing and stated that the appeal remained dismissed.




      Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018   Page 6 of 24
[9]    On June 8, 2016, Crowder filed an amendment to his petition for post-

       conviction relief which alleged that his guilty plea was not entered knowingly,

       intelligently, and voluntarily and that he was denied the effective assistance of

       trial counsel.


[10]   On September 30, 2016, the court held a hearing on Crowder’s petition. The

       court admitted a letter dated July 29, 2011, from the deputy prosecuting

       attorney to Crowder’s counsel which states:


               As I explained to you on the phone yesterday, I met with [S.].
               [S.] clarified some issues that I had. She explained that the
               molestation began when she was 13 years old and her mother
               was pregnant with her little brother. The molestations started by
               her father coming into her room at night and touching her. This
               type of touching occurred several times. The touching was on
               top of her clothes on her breast. The first act of oral sex did not
               occur until after she turned 14.


               Based on this information the State will dismiss Count I prior to
               trial. However, the State is confident that we will secure a
               conviction on the 12 remaining counts based on [S.’s] testimony,
               your client’s admission to the Detective that he began touching
               [S.] when she was thirteen, and the videos he took which we
               have.


               The State will give Mr. Crowder one final opportunity to plead
               guilty and avoid trial. He can plead to one of two plea offers. He
               can plead guilty to Counts II, III, IV and IX with a 30 year
               executed sentence. Or he can plead guilty straight-up to the 12
               counts II-XIII. That will give him an opportunity to request a
               sentence of less than 30 years, but he could also receive a
               sentence of greater than 30 years. It is his choice. However, if a


       Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018   Page 7 of 24
               plea agreement is going to be accepted, he must enter a plea of
               guilty on or before August 5, 2011.


       Petitioner’s Exhibit D.


[11]   Crowder’s trial counsel testified that he received a letter from a deputy

       prosecutor in July 2011 which stated that the deputy prosecutor had met with

       the victim and that she would be dismissing Count I and went on to say that she

       wanted Crowder to plead guilty to a series of counts. He testified he believed

       that one option in the letter was for Crowder to plead to a set term of thirty

       years and the other option was for him to plead straight up to a series of counts.

       He testified that Crowder rejected the offer of thirty years and chose to plead

       straight up to a series of counts, and that he recalled a separate conversation

       with the deputy prosecutor during which she reminded him that she could still

       technically proceed to trial on the count of child molesting as a class A felony

       based upon the victim’s earlier statement. When asked if he advised Crowder

       that he was “not really getting much of a benefit for the dismissal of the A

       Felony,” trial counsel answered, “I didn’t because again, I didn’t read it that

       way because her assessment that she could still technically proceed on the

       victim’s prior statement as often occurs when victims, even another context,

       recant or change their statement as to certain factors involved in the case.”

       Post-Conviction Transcript at 11.


[12]   On cross-examination, trial counsel indicated that Crowder rejected the thirty-

       year deal based upon his conversations with a couple of inmates at the county

       jail and another attorney in which he heard that the charges would have to be
       Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018   Page 8 of 24
       served concurrent with one another and that they could not be served

       consecutively. Trial counsel testified that he advised Crowder that that was not

       correct and that the sentences could be served consecutively. When asked if he

       advised Crowder that he could receive more than thirty years if he took the

       open plea, trial counsel answered, “Definitely.” Id. at 14. He testified that

       Crowder also wanted the opportunity to argue for a sentence less than thirty

       years. When asked about the possibility of going to trial, Crowder stated:

       “Trial wasn’t really part of the analysis because of the overwhelming amount of

       evidence that the State had against him. He never really talked about exercising

       that as an option, in my memory.” Id.


[13]   Crowder testified that his trial counsel did not explain that the State said they

       would dismiss the A felony due to the victim’s clarification of her age and that

       he did not recall his attorney explaining the appellate waiver in the plea

       agreement. When asked if he would have accepted the plea with the appellate

       waiver if he knew he was not receiving a benefit for the waiver, Crowder

       answered, “Absolutely not.” Id. at 23. He stated that he would have

       considered the other plea or gone to trial.


[14]   On cross-examination, Crowder testified:


               I really did not want to go to trial. I figured I had already put my
               daughter and my family through enough. I was guilty. I was
               willing to own up to that. However, if any of the offers that were
               presented to me were not in my mind of what I thought was
               adequate or fair for what happened then I absolutely would have
               gone to trial.

       Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018   Page 9 of 24
       Id. at 26. Crowder also acknowledged that the plea he accepted allowed him to

       argue for a sentence of less than thirty years. He testified that he had the

       concept that he could not be sentenced to more than thirty years from

       discussing it with other individuals. During re-cross examination, Crowder

       testified that he would have seriously considered the thirty-year fixed plea, but

       could not say for certain whether he would have accepted the offer.


[15]   On March 22, 2017, the court denied Crowder’s petition. The order states in

       part:


                                        CONCLUSIONS OF LAW

                                                      *****

               3. Mr. Crowder’s testimony [Findings of Fact, ¶ 7] establishes
               that he was motivated to plead guilty because he knew he was
               guilty, he did not want to put his daughter through a trial, and he
               did not know of any defense he could have presented at trial. He
               does not assert that the Court misled him, and he acknowledges
               that the prosecutor did not mislead him, about the possibility of
               being convicted on Count I. Post-Hearing Brief in Support of
               Amended Post-Conviction Relief Petition (hereinafter
               Petitioner’s Brief), at 6. The evidence establishes that [trial
               counsel] did not advise him correctly on that point [Findings of
               Fact, ¶¶ 5-6], but does not establish that the illusory possibility of
               being convicted on Count I played any part in Mr. Crowder’s
               decision to plead guilty rather than go to trial. Mr. Crowder now
               asserts that, had he known he was getting no benefit for the
               waiver of his right to appeal, “[h]e most likely would have
               accepted the thirty-year fixed plea because he did not want to put
               his daughter through trial” – not that he would have decided to
               go to trial. Petitioner’s Brief, at 5. Before pleading guilty, he was
               already aware that he was not guilty of the offense charged in

       Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018   Page 10 of 24
        Count I because the victim was at least 14 years old at the time;
        therefore, he repeatedly rejected plea offers calling for him to
        plead guilty to that count. Id. at 2. Mr. Crowder did not testify,
        and no evidence suggests, that he had any actual fear of being
        convicted on Count I if he went to trial. In the language of
        Willoughby [v. State, 792 N.E.2d 560, 563 (Ind. Ct. App. 2003),
        trans. denied], although it appears that Mr. Crowder did hold an
        incorrect belief about penal consequences, there is no evidence
        that any resulting “intimidation” was “material to his decision to
        plead guilty.” In short, no objective facts support the conclusion
        that Mr. Crowder’s decision to plead guilty rather than go to trial
        was “driven” by the illusory threat of conviction on Count I, nor
        by any advice or lack of advice from [trial counsel] about the
        possibility of conviction on that count. Furthermore, the strength
        of the State’s case was very great, as indicated by [trial counsel’s]
        acknowledgement that the evidence was overwhelming [Findings
        of Fact, ¶ 6]; the prosecutor’s uncontradicted assertion that nine
        (9) videos from Mr. Crowder’s cell phone depicted the offenses
        [id., ¶ 4]; and Mr. Crowder’s own lack of knowledge of any
        defense he could have presented at trial [id., ¶ 7]. Thus, two of
        the three factors identified in Suarez [v. State, 967 N.E.2d 552,
        555-556 (Ind. Ct. App. 2012), reh’g denied, trans. denied], strongly
        tend to establish that Mr. Crowder was not induced to plead
        guilty by the illusory threat of conviction on Count I, nor by
        deficient advice from [trial counsel] regarding that count.

        4. . . . . Through his own fault in disregarding relevant advice
        from [trial counsel], and relying on bad advice from fellow
        inmates as well as his own conjecture that all his offenses over a
        period of months might have formed a single episode of criminal
        conduct, Mr. Crowder erroneously believed that the benefit
        conferred by the open plea offer he accepted was greater than it
        really was [Findings of Fact, ¶¶ 6-7]. . . . Mr. Crowder’s guilty
        plea cannot be invalidated as involuntary on the ground that any
        benefit actually conferred by the plea did not include a limitation
        of his sentencing exposure to 30 years, because he was not misled
        into holding his incorrect belief that it did include such a

Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018   Page 11 of 24
        limitation by the judge, the prosecutor, or defense counsel – and
        indeed defense counsel advised him to the contrary [Findings of
        Fact, ¶ 6].

        5. In summary, Mr. Crowder’s guilty plea cannot be invalidated
        as involuntary because no one misled him to believe he could
        actually be convicted on Count I, and (more importantly)
        because he has not shown that he would have decided to go to
        trial rather than plead guilty had he known that Count I was to
        be dismissed in any event. Of the three factors identified in
        Suarez, 967 N.E.2d at 555-556, two (objective factors establishing
        that the decision to plead guilty was “driven” by an illusory
        threat or erroneous advice, and the strength of the State’s case)
        strongly tend to establish that Mr. Crowder’s guilty plea was
        voluntary, and the third (the benefit provided by the guilty plea)
        does not tend to establish that it was not voluntary. [Trial
        counsel] did fail to advise Mr. Crowder that Count I was to be
        dismissed in any event, but Mr. Crowder has not shown a
        reasonable probability that he would have decided to go to trial
        rather than plead guilty if he had been so advised, and he tacitly
        admits as much. Petitioner’s Brief, at 10 (Mr. Crowder no longer
        asserts that he would have decided to go to trial, but asserts only
        that “there is a reasonable probability that he would have chosen
        the [30-year] fixed plea or entered into an open plea without a
        written plea agreement to preserve his appellate rights.”

                                               *****

        10. There was no point at which Mr. Crowder could have
        entered a plea of guilty to Counts II through XIII without a plea
        agreement (thereby preserving his right to appeal his sentence)
        after the dismissal of Count I [Findings of Fact, ¶ 5]. An open
        plea offer with no waiver of his right to appeal his sentence,
        otherwise identical to the offer he did accept, was not tendered.
        It is not clear whether Mr. Crowder would have accepted such an
        offer had it been tendered.



Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018   Page 12 of 24
        Mr. Crowder did not testify that he would have done so
        [Findings of Fact, ¶ 7]; he did not tell [trial counsel] that he
        wished to do so [id., ¶ 6]; and he expressly disclaimed any
        interest in doing so at the guilty plea hearing [id., ¶ 4]. On the
        other hand, as Count I was to be dismissed in any event, Mr.
        Crowder received no real benefit in exchange for the waiver of
        his right to appeal, and [trial counsel] appears to have erred in
        overlooking this point [id., ¶¶ 5-6]. It would not be difficult to see
        a reasonable probability that, had [trial counsel] pointed out to
        the prosecutor that Mr. Crowder was getting no real benefit in
        exchange for his waiver of the right to appeal, the prosecutor
        would have decided to revise the plea offer to eliminate the
        waiver, rather than take Mr. Crowder’s remaining 12 counts to
        trial. In that event, it appears probable that Mr. Crowder would
        have accepted that revised plea offer. Thus, on the supposition
        that [trial counsel’s] performance in failing to do so was deficient,
        Mr. Crowder’s defense would have suffered prejudice to the
        extent that he lost his right to appeal his sentence. See Taylor v.
        State, 840 N.E.2d 324, 331 (Ind. 2006) (if counsel’s performance
        was deficient, defendant may prove prejudice by showing a
        reasonable probability – that is, a probability “sufficient to
        undermine confidence in the outcome” – that, but for the claimed
        errors, the result of the proceeding would have been different);
        [Missouri v. Frye, 132 S.Ct. 1399, 1409-1410 (2012)] (defendant
        may prove prejudice by showing reasonable probability that he
        would have accepted a more favorable plea offer if not for
        counsel’s error).

        11. The only remedy available to Mr. Crowder on the
        suppositions set forth in paragraph 10 above, however, would be
        to restore him to the same position he would have occupied if not
        for [trial counsel’s] error in failing to procure an open plea
        agreement with no waiver of the right to appeal. See Marshall [v.
        State, 621 N.E.2d 308, 318 (Ind. 1993)], Flanders [v. State, 955
        N.E.2d 732, 752 (Ind. Ct. App. 2011), reh’g denied, trans. denied].
        This could only be done by severing the waiver provision and
        restoring Mr. Crowder’s right to pursue a timely appeal of his

Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018   Page 13 of 24
               sentence, the same right he would have possessed at the time of
               sentencing if not for the waiver. See Frye, 132 S.Ct. 1399; Lee v.
               State, 816 N.E.2d 35, 39-40 (Ind. 2004) (a court can sever an
               illegal provision of a plea agreement, and enforce the remainder,
               if the basic purpose of the agreement has not been frustrated). As
               Mr. Crowder now asserts only that “[t]he proper remedy in this
               case is for the plea to be vacated,” not that his right to appeal his
               sentence for his existing convictions should be restored
               [Petitioner’s Brief, at 10-11], it appears that he has waived any
               claim of entitlement to the only arguably available remedy.

               12. [Crowder] has failed to prove his claim on the merits by a
               preponderance of the evidence.

               13. The Petition for Post-Conviction Relief is hereby denied.

       Appellant’s Appendix Volume III at 134-143.


                                                     Discussion

[16]   Before addressing Crowder’s allegations of error, we note the general standard

       under which we review a post-conviction court’s denial of a petition for post-

       conviction relief. The petitioner in a post-conviction proceeding bears the

       burden of establishing grounds for relief by a preponderance of the evidence.

       Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5).

       When appealing from the denial of post-conviction relief, the petitioner stands

       in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d

       at 679. On review, we will not reverse the judgment unless the evidence as a

       whole unerringly and unmistakably leads to a conclusion opposite that reached

       by the post-conviction court. Id. “A post-conviction court’s findings and

       judgment will be reversed only upon a showing of clear error – that which


       Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018   Page 14 of 24
       leaves us with a definite and firm conviction that a mistake has been made.” Id.

       In this review, we accept findings of fact unless clearly erroneous, but we

       accord no deference to conclusions of law. Id. The post-conviction court is the

       sole judge of the weight of the evidence and the credibility of witnesses. Id.


[17]   Crowder argues that his plea was not knowing, intelligent, or voluntary where

       he did not know the dismissal of the charge of child molesting as a class A

       felony was due to a lack of evidence and that he received no material benefit

       while also waiving his appellate rights. He argues that the post-conviction court

       clearly erred when it held that he did not show that the dismissal of Count I was

       a motivating factor in his decision to accept the open plea. In other words, he

       asserts that he accepted the open plea under the illusory threat that the State

       would proceed on Count I unless he accepted either of the two proffered pleas.

       Crowder contends that he received ineffective assistance of counsel when his

       counsel failed to advise him that the open plea provided no benefit. He also

       asserts that he waived his right to appeal his sentence, but that he did not do so

       knowingly, intelligently, and voluntarily. He argues that the post-conviction

       court erred when it determined that he might be entitled to a direct appeal of his

       sentence but waived that remedy by advocating for vacating his plea agreement.

       He requests that we reverse the denial of post-conviction relief and order that

       his guilty plea be vacated or, at a minimum, order that his appellate waiver be

       severed from his plea agreement so he may proceed to appellate review of his

       sentence.




       Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018   Page 15 of 24
[18]   The State argues that Crowder was not motivated to plead guilty by an illusory

       threat of prosecution for child molesting as a class A felony and that his plea

       offered the benefits of allowing him to argue for a sentence less than thirty

       years, unlike an earlier plea offer, and avoid the futility of a trial. The State

       contends that Crowder’s trial counsel was not ineffective, and that Crowder’s

       waiver of his right to appeal his sentence was knowing and voluntary. It also

       contends that, given Crowder’s repeated failures to request that he be allowed

       to appeal his sentence, the post-conviction court properly determined that he

       waived any claim of entitlement. It asserts that alternatively, should this Court

       find that Crowder’s appellate waiver was not knowing or voluntary or that trial

       counsel was ineffective in failing to advise Crowder that his appellate waiver

       inured no benefit to him, the remedy that would restore Crowder to the same

       position he would have occupied if not for these errors would be to reinstate his

       right to appeal his sentence. In reply, Crowder argues in part that he did not

       waive any remedy.


[19]   With respect to the voluntariness of his guilty plea, the Indiana Supreme Court

       has held that a plea entered after the trial judge has reviewed the various rights

       which a defendant is waiving and made the inquiries called for by statute is

       unlikely to be found wanting in a collateral attack. State v. Moore, 678 N.E.2d

       1258, 1265 (Ind. 1997), reh’g denied, cert. denied, 523 U.S. 1079 (1998).

       However, defendants who can show that they were coerced or misled into

       pleading guilty by the judge, prosecutor or defense counsel will present

       colorable claims for relief. Id. at 1266. In assessing the voluntariness of the


       Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018   Page 16 of 24
       plea, we review all the evidence before the court which heard his post-

       conviction petition, including testimony given at the post-conviction hearing,

       the transcript of the petitioner’s original sentencing, and any plea agreements or

       other exhibits which are a part of the record. Id. In Moore, the Court held that

       “[v]oluntariness is also distinct from ineffective assistance of counsel, despite

       some references in our cases to pleas as involuntary” and that voluntariness

       “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.” Id.


[20]   Generally, to prevail on a claim of ineffective assistance of counsel a petitioner

       must demonstrate both that his counsel’s performance was deficient and that

       the petitioner was prejudiced by the deficient performance. French v. State, 778

       N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104

       S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls

       below an objective standard of reasonableness based on prevailing professional

       norms. Id. To meet the appropriate test for prejudice, the petitioner must show

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

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

       probability is a probability sufficient to undermine confidence in the outcome.

       Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong

       will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective

       assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.




       Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018   Page 17 of 24
[21]   When considering a claim of ineffective assistance of counsel, a “strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment.”

       Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance

       is presumed effective, and a defendant must offer strong and convincing

       evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73

       (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will

       not support a claim of ineffective assistance of counsel. Clark v. State, 668

       N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.

       Ct. 1438 (1997).


[22]   Because Crowder was convicted pursuant to a guilty plea, we analyze his

       claims under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura categorizes two

       main types of ineffective assistance of counsel cases. Smith v. State, 770 N.E.2d

       290, 295 (Ind. 2002). The first category relates to “an unutilized defense or

       failure to mitigate a penalty.” Willoughby v. State, 792 N.E.2d 560, 563 (Ind. Ct.

       App. 2003), trans. denied. The second relates to “an improper advisement of

       penal consequences,” and this category has two subcategories: (1) “claims of

       intimidation by exaggerated penalty or enticement by an understated maximum

       exposure;” or (2) “claims of incorrect advice as to the law.” Id. Crowder’s

       claim, which is that his trial counsel failed to advise him that the open plea

       provided no benefit, appears to fall under the second category.


[23]   With respect to claims of exaggerated penalty, the Segura Court stated:



       Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018   Page 18 of 24
               Whether viewed as ineffective assistance of counsel or an
               involuntary plea, the postconviction court must resolve the factual
               issue of the materiality of the bad advice in the decision to plead,
               and postconviction relief may be granted if the plea can be shown
               to have been influenced by counsel’s error. However, if the
               postconviction court finds that the petitioner would have pleaded
               guilty even if competently advised as to the penal consequences,
               the error in advice is immaterial to the decision to plead and there
               is no prejudice.


       Segura, 749 N.E.2d at 504-505. See also Willoughby, 792 N.E.2d at 563 (holding

       that it was immaterial whether the petitioner’s claim was of an involuntary plea

       or ineffective assistance and that under either standard, the petitioner must

       demonstrate that the intimidation resulting from his trial counsel’s failure to

       inform him of the single larceny rule was material to his decision to plead

       guilty); Graham v. State, 941 N.E.2d 1091, 1101-1102 (Ind. Ct. App. 2011)

       (holding that the standard set out in Segura and Willoughby was equally

       applicable to straightforward claims of an involuntary or illusory plea), aff’d on

       reh’g, 947 N.E.2d 962.


[24]   In Segura, with respect to prejudice from advice that omits or misdescribes penal

       consequences, the Court held:


               We see no reason to require revisiting a guilty plea if, at the end
               of the day, the inevitable result is conviction and the same
               sentence. Yet, we agree that in extreme cases, a credible scenario
               can be posited that results in a truly innocent defendant pleading
               guilty because of incorrect advice as to the consequences. The
               cases where a showing of prejudice from incorrect advice as to
               the inevitable consequences of conviction will be able to be made
               may be few. If such a circumstance is shown, however, the
               defendant should not be stripped of the presumption of
       Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018   Page 19 of 24
        innocence, the requirement of proof beyond a reasonable doubt,
        and the other procedural rights that are not available in
        postconviction proceedings. To require a showing of innocence
        to obtain a new trial would have that effect. Accordingly, we
        conclude that in order to state a claim for postconviction relief a
        petitioner may not simply allege that a plea would not have been
        entered. Nor is the petitioner’s conclusory testimony to that
        effect sufficient to prove prejudice. To state a claim of prejudice
        from counsel’s omission or misdescription of penal consequences
        that attaches to both a plea and a conviction at trial, the
        petitioner must allege, in Hill’s terms, “special circumstances,”1
        or, as others have put it, “objective facts” 2 supporting the
        conclusion that the decision to plead was driven by the erroneous
        advice.

        We believe a showing of prejudice from incorrect advice as to the
        penal consequences is to be judged by an objective standard, i.e.,
        there must be a showing of facts that support a reasonable
        probability that the hypothetical reasonable defendant would
        have elected to go to trial if properly advised. . . . [A] petitioner
        may be entitled to relief if there is an objectively credible factual
        and legal basis from which it may be concluded 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.”
        Hill, 474 U.S. at 59, 106 S. Ct. 366.

        . . . [F]or claims relating to penal consequences, a petitioner must
        establish, by objective facts, circumstances that support the
        conclusion that counsel’s errors in advice as to penal
        consequences were material to the decision to plead. Merely
        alleging that the petitioner would not have pleaded is insufficient.



        1
            Hill [v. Lockhart, 474 U.S. 52, 60, 106 S. Ct. 366 (1985)].
        2
          McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir. 1996); State v. Donald, 198 Ariz. 406,
        10 P.3d 1193, 1201 (Ct. App. 2000)[, review denied, cert. denied, 534 U.S. 825, 122 S. Ct. 63
        (2001)].

Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018                         Page 20 of 24
               Rather, specific facts, in addition to the petitioner’s conclusory
               allegation, must establish an objective reasonable probability that
               competent representation would have caused the petitioner not to
               enter a plea.

       Segura, 749 N.E.2d at 507.


[25]   Relying upon Segura, this Court later held, “when an error in advice supports a

       claim of intimidation by exaggerated penalty, a petitioner must establish

       specific facts that lead to the conclusion that a reasonable defendant would not

       have entered a plea had the error in advice not been committed.” Willoughby,

       792 N.E.2d at 564. “In addition to any special circumstances shown by the

       defendant, we also think it appropriate to consider the strength of the State’s

       case.” Suarez v. State, 967 N.E.2d 552, 556 (Ind. Ct. App. 2012), reh’g denied,

       trans. denied. “It is apparent that any reasonable defendant would take this into

       account when pondering a guilty plea.” Id. It is “also appropriate to consider

       the benefit conferred upon the defendant by his guilty plea.” Id.


[26]   The post-conviction court concluded that the evidence does not establish that

       the illusory possibility of being convicted on Count I played any part in

       Crowder’s decision to plead guilty rather than go to trial. The record reveals

       that Crowder rejected the thirty-year deal because of his understanding based

       upon conversations with others that the charges would have to be served

       concurrently with each other and they could not be served consecutively.

       Crowder’s trial counsel testified that he advised Crowder that that was not

       correct, that the sentences could be served consecutively, and that he could

       receive more than thirty years if he took the open plea. Trial counsel testified

       Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018   Page 21 of 24
       that Crowder wanted the opportunity to argue for a sentence of less than thirty

       years, that trial “wasn’t really part of the analysis because of the overwhelming

       amount of evidence that the State had against him,” and that Crowder “never

       really talked about exercising that as an option, in my memory.” Post-

       Conviction Transcript at 14. While Crowder testified that he would not have

       accepted the plea agreement he ultimately accepted, he also testified that he did

       not want to go to trial, had already put his daughter and family through

       enough, was guilty, was willing to own up to that, the plea he accepted allowed

       him to argue for a sentence of less than thirty years, and that he had the concept

       that he could not be sentenced to more than thirty years from discussing it with

       individuals other than his trial counsel. Under the circumstances, we cannot

       say that the evidence as a whole unerringly and unmistakably leads to a

       conclusion opposite that reached by the post-conviction court.


[27]   With respect to the waiver provision in Crowder’s plea agreement, the State

       does not challenge the post-conviction court’s findings that Crowder’s trial

       counsel did not advise him that the plea agreement provided no benefit to him,

       that trial counsel would not have advised Crowder to accept an open plea if he

       knew it provided no benefit, and that trial counsel did not ask the prosecutor to

       remove the waiver after learning that Count I was to be dismissed in any event.

       Also, the State does not challenge the post-conviction court’s conclusions that

       Crowder’s trial counsel failed to advise him that Count I was to be dismissed in

       any event or that his trial counsel “appears to have erred in overlooking this




       Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018   Page 22 of 24
       point.” Appellant’s Appendix Volume III at 110. We also observe that the

       post-conviction court concluded:


                 It would not be difficult to see a reasonable probability that, had
                 [trial counsel] pointed out to the prosecutor that Mr. Crowder
                 was getting no real benefit in exchange for his waiver of the right
                 to appeal, the prosecutor would have decided to revise the plea
                 offer to eliminate the waiver, rather than take Mr. Crowder’s
                 remaining 12 counts to trial.


       Id.


[28]   We note that Crowder’s amendment to his petition asserted that his counsel

       should have advised him to not accept a plea agreement that waived his

       appellate rights when he received no benefit for the waiver. While Crowder’s

       post-hearing brief stated that the proper remedy was for the plea to be vacated,

       we conclude that he did not explicitly waive the remedy of severing the

       provision related to the waiver of his right to appeal his sentence from the plea

       agreement in the event that the post-conviction court found that vacation of the

       plea agreement was not warranted. Further, his proposed findings of fact

       stated:


                 [If this court finds Crowder did not meet his burden to show his
                 entire guilty plea must be vacated:] This court concludes that
                 paragraph nine is void, but the remainder of the plea agreement
                 should remain intact. This court does not find that Crowder has
                 waived this form of relief by arguing that the proper remedy is to
                 vacate the appeal, especially where Crowder maintains in his
                 post-hearing brief that the waiver is void. Pet.’s Br. at 7. This
                 court directs the Allen County Public defender to appoint
                 counsel to perfect an appeal of Crowder’s sentence.
       Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018   Page 23 of 24
       Id. at 127 (bracketed text appears in original).


[29]   The State asserts that, should this Court find that Crowder’s appellate waiver

       was not knowing or voluntary or that the trial counsel was ineffective in failing

       to advise him that his appellate waiver inured no benefit to him, the proper

       remedy would be to reinstate his right to appeal his sentence.3 Under these

       circumstances, we reverse the post-conviction court’s finding that Crowder

       waived the alternative remedy of permitting him to pursue an appeal of his

       sentence.


                                                      Conclusion

[30]   For the foregoing reasons, we affirm the post-conviction court’s order to the

       extent it upheld the plea agreement and reverse that portion of the court’s order

       finding that Crowder waived the remedy of permitting him to pursue an appeal

       of his sentence.


[31]   Affirmed in part and reversed in part.


       Najam, J., and Kirsch, J., concur.




       3
        Both the State and Crowder cite Lee v State, 816 N.E. 2d 35 (Ind. 2004), also cited in the post-conviction
       court’s order, in support of severing a provision of a plea agreement.

       Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018                      Page 24 of 24
