Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                      Aug 21 2014, 8:30 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

APPELLANT PRO SE:                               ATTORNEYS FOR APPELLEE:

JOHN NAYLOR                                     GREGORY F. ZOELLER
Pendleton, Indiana                              Attorney General of Indiana

                                                J.T. WHITEHEAD
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JOHN NAYLOR,                                    )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 31A01-1301-PC-4
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                 APPEAL FROM THE HARRISON SUPERIOR COURT
                         The Honorable Roger Davis, Judge
                           Cause No. 31D01-1204-PC-5



                                      August 21, 2014


             MEMORANDUM DECISION - NOT FOR PUBLICATION


ROBB, Judge
                                 Case Summary and Issue

       John Naylor, pro se, appeals the post-conviction court’s denial of his petition for

post-conviction relief, raising a single issue for our review: whether the post-conviction

court erred by denying Naylor’s petition, which was founded on a claim of ineffective

assistance of trial counsel. Concluding the denial of Naylor’s petition was not erroneous,

we affirm.

                               Facts and Procedural History

       The facts relevant to Naylor’s underlying convictions have been previously

recounted by this court in Naylor’s direct appeal:

               On June 12, 2004, Linda Pittman was driving her van and her mother,
       Myrtle Satterfield, was riding as a passenger. As Linda pulled into the
       driveway of the residence in Mauckport she shared with her husband, Hobert
       Pittman, Albert Pittman, Hobert’s son and Linda’s stepson, began shooting
       at her van. Then Albert got into a Ford Explorer that belonged to Hobert and
       began to back up towards Linda’s van. Albert stopped, and he and a
       passenger got out and both started shooting at Linda’s van. Linda “played
       dead” until Albert and his passenger got back into the Explorer and drove
       away. Linda sustained several gunshot wounds to her face and body, and
       Satterfield ultimately died of her gunshot wounds.

               Linda then drove to a nearby tavern and stopped two men in a vehicle,
       Darrell Mosier and Matthew Stanley, and asked them for help. Mosier
       observed blood on Linda’s face and arm, and he saw that Satterfield was
       “slumped over” in the backseat. Linda told Mosier and Stanley that her
       stepson, Albert, had shot them and that he and “a friend of his” had fled the
       scene in Hobert’s red Ford Explorer. Just then, Linda, Mosier, and Stanley
       saw the Explorer driving towards them, and Linda yelled, “That’s them!”
       Albert did not stop, but drove away. Stanley got out of Mosier’s vehicle to
       assist Linda, and Mosier called 911 and began following Albert and the other
       man, later identified as Naylor, in the Explorer. Mosier eventually caught up
       to the Explorer after it had stopped under a bridge, and he saw Albert and
       Naylor removing items from the Explorer and putting them into Naylor’s car,
       which had been parked there.


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               Albert and Naylor then drove away in Naylor’s car, and Mosier stayed
        with them. At one point, Naylor pulled his car up next to Mosier’s vehicle at
        a red stoplight, and Mosier got a good look at both men before they drove
        away. Mosier then drove back to the scene where he had left Stanley with
        Linda, and she was receiving medical attention. Mosier and Stanley gave
        statements to the police, who subsequently discovered Hobert’s dead body at
        his residence. Hobert had been killed prior to the attack on Linda and
        Satterfield.

                In the course of the ensuing investigation, police learned that Albert
        and Naylor had been seen together the day before the shootings and that they
        had gone to Florida together afterwards. Police in Daytona Beach, Florida,
        ultimately arrested Albert and Naylor. As Florida police brought Naylor into
        the police station, Detective Tammy Pera heard Naylor say that he “didn’t
        want to talk” and that he was “facing the death penalty.” Later, while in jail
        in Indiana, Naylor told Corrections Officer Brian Winninger, “I’m guilty of
        killing those two people. I need to talk to someone over the situation. I’m
        guilty and about to go crazy over what I’ve done. Can I please talk to you
        about it?” But while Naylor considered entering a guilty plea, he ultimately
        pleaded not guilty and faced a jury trial.

               The State charged Naylor with felony murder (Satterfield), murder
        (Hobert), attempted murder (Linda), conspiracy to commit burglary,
        burglary, theft, auto theft, and assisting a criminal.1 A jury found him guilty
        of felony murder, attempted murder, conspiracy to commit burglary, auto
        theft, and assisting a criminal, and the trial court entered judgment
        accordingly. At sentencing, the trial court found that the aggravators
        outweighed the mitigators and sentenced Naylor to an aggregate term of
        120½ years.

Naylor v. State, No. 31A01-0704-CR-157, slip op. at 1-2 (Ind. Ct. App. 2008). In his direct

appeal, Naylor raised the following issues: (1) whether the trial court abused its discretion

when it found him competent to stand trial and sentencing; (2) whether the trial court

abused its discretion when it admitted into evidence statements Naylor made to police

officers; (3) whether the trial court abused its discretion when it admitted into evidence


        1
           Police found that several items had been stolen from the Pittmans’ home, including weapons used in the
shootings and Hobert’s Ford Explorer.

                                                       3
certain photographs; (4) whether the State presented sufficient evidence to support his

convictions; and (5) whether the trial court abused its discretion when it sentenced him.

This court affirmed in all respects. Id. Our supreme court denied Naylor’s petition to

transfer on March 13, 2008.

       On April 9, 2012, Naylor filed his petition for post-conviction relief, alleging

ineffective assistance of trial counsel. A hearing was held on Naylor’s petition on

September 25, 2012. Witnesses at the hearing included Stanley Robison (Naylor’s trial

counsel), Donna Smallwood (Robison’s legal aid), Naylor, and three of Naylor’s family

members. The post-conviction court denied Naylor’s petition on December 14, 2012. This

appeal followed.

                                 Discussion and Decision

                                  I. Standard of Review

       A petitioner seeking post-conviction relief bears the burden of establishing grounds

for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner

who is denied post-conviction relief appeals from a negative judgment, which may be

reversed only if “the evidence as a whole leads unerringly and unmistakably to a decision

opposite that reached by the post-conviction court.” Stevens v. State, 770 N.E.2d 739, 745

(Ind. 2002), cert. denied, 540 U.S. 830 (2003). We defer to the post-conviction court’s

factual findings, unless they are clearly erroneous. Id. at 746.

       The Sixth Amendment’s “right to counsel is the right to the effective assistance of

counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v.

Richardson, 397 U.S. 759, 771 n.14 (1970)). To establish a claim of ineffective assistance

                                              4
of counsel, a convicted defendant must show (1) that counsel’s performance was deficient

such that it fell below an objective standard of reasonableness based on prevailing

professional norms and (2) the defendant was prejudiced by counsel’s deficient

performance. Id. at 687. When considering whether counsel’s performance was deficient,

the reviewing court begins with a “strong presumption” that counsel’s performance was

reasonable. Id. at 689. A defendant is prejudiced if “there is a reasonable probability that,

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

different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id.

       The two prongs of the Strickland test—performance and prejudice—are

independent inquiries, and both prongs need not be addressed if the defendant makes an

insufficient showing as to one of them. Id. at 697. For instance, “[i]f it is easier to dispose

of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course

should be followed” without consideration of whether counsel’s performance was

deficient. Id.

                        II. Ineffective Assistance of Trial Counsel

       On appeal, Naylor claims the post-conviction court erred in denying his petition,

and he complains of what we identify as three instances of alleged ineffective assistance of

counsel: (1) Robison’s failure to inform Naylor regarding his right to testify at trial and

his refusal to allow Naylor the opportunity to testify; (2) Robison’s failure to challenge the

admission of confessions made by Naylor; and (3) Robison’s failure to adequately

investigate or prepare for trial. We will address each of these allegations in turn.

                                              5
                                  A. Naylor’s Right to Testify

       Naylor’s primary argument throughout these post-conviction proceedings has been

that Robison performed deficiently by effectively denying Naylor his right to testify in his

own defense. In Naylor’s words, “Robison refused to allow [Naylor] the right to testify

and if he tried, Robison would ‘shout him down.’” Brief of Petitioner-Appellant at 2. The

post-conviction court, however, viewed the evidence quite differently, concluding that

Naylor’s decision not to testify was made by Naylor upon consultation with Robison. The

evidence supports the post-conviction court’s conclusion.          Robison testified that he

“discussed with [Naylor] his right to testify no less than four times. . . . We discussed it

before trial and during trial. He agreed with it every time, not to testify.” Transcript at 49.

       “The post-conviction court is the sole judge of the evidence and the credibility of

the witnesses.” Hall v. State, 849 N.E.2d 466, 468-69 (Ind. 2006). The post-conviction

court determined that Naylor chose freely to forgo testifying after receiving the advice of

counsel. The court’s decision to credit Robison’s version of events over Naylor’s is a

straightforward credibility determination by the post-conviction court, and it is one that

Naylor has failed to demonstrate is clearly erroneous.

                             B. Challenge to Naylor’s Confessions

       Next, Naylor contends Robison failed to challenge the admission of statements

made by Naylor confessing to the charges against him. The post-conviction court found,

and we agree, that Naylor’s allegations on this point are entirely groundless.            The

confessions Naylor complains of were addressed in his direct appeal, and this court

specifically noted that Robison made a contemporaneous objection at trial prior to

                                              6
admission of that evidence. Naylor, slip op. at 6. Moreover, entries in the Chronological

Case Summary reflect unsuccessful attempts by Robison to have these statements

suppressed prior to trial. See Appendix of Appellant’s Brief at 20. Naylor’s assertion that

Robison did not challenge the admission of this evidence is demonstrably false, and thus

we find no error in the post-conviction court’s rejection of Naylor’s argument on this issue.

                      C. Trial Counsel’s Preparation and Trial Strategy

       Last, Naylor asserts that Robison neglected to prepare for trial or present any

defense at trial. Specifically, Naylor states that an illness suffered by Robison hindered his

ability to adequately represent Naylor. Contrary to these assertions, the post-conviction

court found there was “a lack of any credible evidence to support any of these claims” and

that “Robison is a skilled trial attorney with [29 years] of criminal . . . experience.”

Appellant’s App. at 79. The evidence presented at Naylor’s hearing demonstrates that

Robison, among other things, filed a number of pre-trial motions to suppress or otherwise

exclude incriminating evidence, engaged in plea negotiations, participated in extensive

discovery, conducted depositions, and met with his client on numerous occasions. Robison

also testified that he turned away other prospective clients to make time for his

representation of Naylor.

       With respect to trial strategy, we note that “[c]ounsel is afforded considerable

discretion in choosing strategy and tactics, and we will accord that decision deference. A

strong presumption arises that counsel rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.”          State v.

Holmes, 728 N.E.2d 164, 172 (Ind. 2000) (citation omitted), cert. denied, 532 U.S. 1067

                                              7
(2001). The post-conviction court found Naylor’s claim that Robison did “not present[] or

prepar[e] any kind of defense,” Appellant’s Br. at 4, to be unsupported by the evidence. In

addition to the preparation mentioned above, Robison went to trial prepared to make

objections and thoroughly cross-examine the State’s witnesses. Naylor has failed to

demonstrate—either before the post-conviction court or on appeal—that any trial strategy

employed by Robison amounted to deficient performance.

                                       Conclusion

       Concluding the post-conviction court did not err by denying Naylor’s petition for

post-conviction relief, we affirm.

       Affirmed.

BAKER, J., and KIRSCH, J., concur.




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