                                                                             Feb 08 2016, 8:34 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Russell W. Brown, Jr.                                      Gregory F. Zoeller
      Office of Lake County Public Defender                      Attorney General of Indiana
      Crown Point, Indiana
                                                                 Brian Reitz
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA


      Hervin S. Talley,                                          February 8, 2016

      Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                 45A05-1507-PC-1005
              v.                                                 Appeal from Lake Superior Court.
                                                                 The Honorable Salvador Vasquez,
                                                                 Judge.
      State of Indiana,                                          Cause Nos. 45G01-1208-FB-77,
      Appellee-Respondent.                                       45G01-1310-PC-18




      Darden, Senior Judge


                                       Statement of the Case
[1]   Hervin S. Talley was convicted of possession of a firearm by a serious violent

      felon and two counts of resisting law enforcement. He appealed his convictions

      but later received permission to terminate his appeal and seek post-conviction


      Court of Appeals of Indiana | Opinion 45A05-1507-PC-1005 | February 8, 2016                   Page 1 of 11
      relief. Talley now appeals the denial of his petition for post-conviction relief.

      We affirm.


                                                       Issue
[2]   Talley raises one issue, which we restate as: whether the post-conviction court

      erred by rejecting his claim of ineffective assistance of trial counsel.


                                Facts and Procedural History
[3]   On the evening of August 5, 2012, Officer Alejandro Campos of the East

      Chicago Police Department was on routine patrol in East Chicago, Indiana.

      He was dispatched to investigate a report of a burglary. The dispatcher directed

      Officer Campos to look for a suspect who was described as a black male with

      dreadlocks wearing a white shirt and dark blue jeans.


[4]   As Officer Campos drove to the location of the burglary, he saw a person, later

      identified as Talley, walking on a sidewalk. Talley matched the reported

      description of the suspect. Officer Campos parked his car, which was fully

      marked and had its emergency lights activated. Next, Campos, who was in

      uniform, got out of his car, identified himself as a police officer, and told Talley

      to stop. Talley turned around, looked at Officer Campos for a moment, and ran

      away. Officer Campos chased him on foot.


[5]   Talley ran to a house that was later identified as his mother’s house, opened a

      gate, and entered the front yard. He shouted for his mother. At that point,

      Officer Campos caught up to Talley and grabbed him by the shoulder. As they


      Court of Appeals of Indiana | Opinion 45A05-1507-PC-1005 | February 8, 2016   Page 2 of 11
      struggled, Talley pulled a handgun out of his pants. Officer Campos grabbed

      Talley’s wrist and forced him to drop the handgun. It was later discovered that

      the gun, which was a .40 caliber Taurus semiautomatic, had a round in the

      chamber and the safety was off.


[6]   Officer Campos handcuffed Talley, secured the handgun, and called for backup.

      When another officer arrived, Officer Campos put Talley in his patrol car. At

      that point, Talley blurted out to Officer Campos, “Let me go. I’m a convicted

      felon.” Trial Tr. p. 85. As Talley sat in the car, Officer Campos took a picture

      of him with a cell phone. Later, Officer Campos showed the picture to the

      burglary victim, and she said Talley was not the burglar.


[7]   Subsequently, the State charged Talley with unlawful possession of a firearm by

      a serious violent felon (SVF), a Class B felony, resisting law enforcement as a

      Class D felony, and resisting law enforcement as a Class A misdemeanor. The

      State alleged that Talley was a SVF because he had been convicted of armed

      robbery in Illinois in 2001.


[8]   The case was tried to a jury. On the first day of trial, Talley, by counsel, filed a

      motion to exclude evidence of his 2001 Illinois conviction for armed robbery.

      He asserted in the motion that the conviction was: (1) inappropriate evidence

      of other crimes, wrongs or acts in violation of Indiana Evidence Rule 404; (2)

      unduly prejudicial in violation of Indiana Evidence Rule 403; and (3) irrelevant

      because the State would not be able to prove that Talley committed the crime

      that led to the 2001 conviction, in violation of Indiana Evidence Rule 104(b).


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       In addition, outside the presence of the jury, Talley argued to the court, “The

       conviction was in 2001, approximately ten years ago. We believe that is too

       remote in time and should not be allowed in this case.” Trial Tr. p. 22. The

       trial court denied Talley’s motion, ruling that the serious violent felon statute

       “does not give a time limitation.” Id.


[9]    During the trial, Talley renewed his objection to admission of evidence of the

       2001 predicate felony, claiming that the conviction was too old. The court

       overruled the objection. Officer Campos testified that Talley had blurted out

       that he was a convicted felon. In addition, the jury heard testimony on three

       occasions that Talley had been convicted of armed robbery. Id. at 108, 144-45,

       206. The jurors were shown a certified record from the Illinois Department of

       Corrections which included a mugshot of Talley and showed that he had been

       convicted of armed robbery in 2001. State’s Trial Ex. 9.


[10]   Talley’s mother testified during Talley’s case-in-chief and contradicted Officer

       Campos’ testimony. She stated that Talley never had the handgun. Instead,

       she said the handgun belonged to her, she was holding it when she came

       outside and saw Officer Campos arrest Talley in her front yard, and Officer

       Campos took it out of her hands and confiscated it. Talley’s sister testified to

       the same. On cross-examination during the State’s case-in-chief, Officer

       Campos denied that Talley’s mother had held the handgun.


[11]   The jurors determined that Talley was guilty as charged. The trial court

       sentenced him to an aggregate sentence of ten years.


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[12]   Talley filed a Notice of Appeal. He obtained new counsel as his appeal

       progressed, and he filed with the Court a verified motion to remand. In support

       of his motion, Talley asserted that remand was necessary to develop a factual

       record to support a claim of ineffective assistance of trial counsel. The Court

       granted the motion and dismissed his appeal, without prejudice, to his right to

       appeal after post-conviction proceedings ended.


[13]   Next, Talley filed a petition for post-conviction relief. The State filed a

       response, and the post-conviction court held an evidentiary hearing. After the

       hearing, the court denied Talley’s petition, and he now appeals.


                                     Discussion and Decision
[14]   The Court dismissed Talley’s direct appeal under the Davis-Hatton procedure,

       pursuant to which an appellate court may, upon an appellant’s motion,

       terminate or suspend a direct appeal to allow the appellant to pursue a petition

       for post-conviction relief in the trial court. See White v. State, 25 N.E.3d 107,

       121 (Ind. Ct. App. 2014), trans. denied, cert. denied, 136 S. Ct. 595 (2015). If the

       post-conviction court denies the petition, then the appeal may be reinstated, and

       the issues that would have been raised on direct appeal and the issues litigated

       in the post-conviction relief proceeding can be raised together. Id. The

       procedure is useful where a defendant needs to develop an evidentiary record to

       support a claim of ineffective assistance of trial counsel. Peaver v. State, 937

       N.E.2d 896, 899 (Ind. Ct. App. 2010), trans. denied. In this appeal, Talley does

       not present any claims that he could have raised in his direct appeal, instead


       Court of Appeals of Indiana | Opinion 45A05-1507-PC-1005 | February 8, 2016   Page 5 of 11
       focusing entirely on the post-conviction court’s rejection of his claim of

       ineffective assistance of trial counsel.


[15]   Talley is appealing from a negative judgment and bears the burden of proof.

       Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). He must convince the Court

       that there is no way within the law that the post-conviction court could have

       reached the decision it did. Id. We review the court’s factual findings for clear

       error but do not defer to its conclusions of law. Id. We will not reweigh the

       evidence or judge the credibility of witnesses. Hinesley v. State, 999 N.E.2d 975,

       981 (Ind. Ct. App. 2013), trans. denied. Instead, we consider only the probative

       evidence and reasonable inferences flowing therefrom that support the post-

       conviction court’s decision. Id.


[16]   Claims of ineffective assistance of counsel are evaluated using the Strickland

       standard articulated by the United States Supreme Court. Wilkes, 984 N.E.2d

       at 1240. The standard has two elements. First, a petitioner must demonstrate

       that counsel performed deficiently based upon prevailing professional norms.

       Id. Counsel is afforded considerable discretion in choosing strategy and tactics,

       and we will accord those decisions deference. Timberlake v. State, 753 N.E.2d

       591, 603 (Ind. 2001). Counsel’s performance is presumed effective, and a

       defendant must offer strong and convincing evidence to overcome this

       presumption. Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010). To prevail on

       an ineffective assistance of counsel claim based upon counsel’s failure to file a

       motion, the petitioner must demonstrate that the motion would have been



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       successful. Moore v. State, 872 N.E.2d 617, 621 (Ind. Ct. App. 2007), trans.

       denied.


[17]   Second, a petitioner must establish that counsel’s deficient performance resulted

       in prejudice to the petitioner. Wilkes, 984 N.E.2d at 1240. That is, the

       defendant must show a reasonable probability that, but for counsel’s errors, the

       result of the proceeding would have been different. Id. at 1241. A reasonable

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

       Id.


[18]   Talley asserts that his trial counsel should have filed a motion to bifurcate the

       charge of possession of a handgun by a SVF from the charges of resisting law

       enforcement because he was unduly prejudiced as to the resisting charges when

       the jury heard evidence that he was a SVF. The State responds that a motion to

       bifurcate would have failed and that counsel’s decision to refrain from seeking

       bifurcation was a strategic choice that this Court cannot second-guess.


[19]   We turn to whether trial counsel performed deficiently. In preparation for trial,

       Talley’s counsel, who has sixteen years alone of criminal defense experience as

       a part-time attorney with the Lake County public defender’s office, sent an

       investigator to examine the scene of the crimes and to interview witnesses,

       conducted depositions of the State’s witnesses, reviewed discovery provided by

       the State, and consulted with Talley.


[20]   After reviewing the State’s documents and talking with witnesses for both sides,

       counsel chose a strategy of directly challenging the State’s evidence that Talley

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       possessed a handgun. She intended to call witnesses to testify that Talley did

       not have a gun during the events at issue.


[21]   The evidence shows that counsel is familiar with the case law that governs

       bifurcation of trials. She considered filing a motion to bifurcate, but she

       concluded that it would not succeed because the facts related to the various

       offenses were interconnected. Furthermore, she thought that Talley’s prior

       conviction, although prejudicial, could be properly admitted as evidence of

       motive. Conversely, the prior conviction could have also established a motive

       to refrain from carrying a firearm. Counsel expected to call several witnesses to

       testify that Talley did not have a gun during the events at issue, and she

       believed those witnesses would tell the jury that Talley would never carry a gun

       because he was a convicted felon. Counsel concluded under these

       circumstances that moving to exclude the evidence of prior convictions on

       grounds of staleness was the best option to keep the jury from ever learning of

       the convictions.


[22]   Pursuant to Indiana Evidence Rule 404(B), evidence of a prior conviction may
                                                                         1
       be relevant to prove purposes, including motive. However, even if evidence of




       1
         Talley argues that we may not consider whether the prior conviction was admissible as evidence of motive
       because the State did not present the motive argument during Talley’s original trial. Talley’s argument fails
       because the State presented the motive argument during post-conviction proceedings, and the post-conviction
       court had the opportunity to consider that argument in ruling upon Talley’s claim of ineffective assistance of
       trial counsel.

       Court of Appeals of Indiana | Opinion 45A05-1507-PC-1005 | February 8, 2016                       Page 8 of 11
       a prior conviction is relevant, the probative value of such evidence must not be

       outweighed by the danger of unfair prejudice. Ind. Evidence Rule 403.


[23]   Talley’s trial counsel was correct that Talley’s prior robbery conviction could

       have been relevant to prove motive in connection with the charges of resisting

       law enforcement. See Fuentes v. State, 10 N.E.3d 68, 73 (Ind. Ct. App. 2014)

       (presence of a rifle in defendant’s car was admissible at trial because it was

       evidence of his motive to flee from the police in the car and on foot), trans.

       denied. In addition, the relevance of Talley’s prior conviction was not

       substantially outweighed by undue prejudice because the jury also heard that

       Talley had blurted out to Officer Campos, “Let me go. I’m a convicted felon”

       during his arrest. Trial Tr. p. 85. Based on Talley’s admission against his own

       interest, it was unlikely that the jury would give undue weight to evidence of the

       armed robbery conviction as described by the State’s witnesses. See Fuentes, 10

       N.E.3d at 73 (admission of rifle not unduly prejudicial where the jury heard

       evidence that defendant also possessed a handgun).


[24]   If Talley’s trial counsel had filed a motion to bifurcate, the trial court would not

       have been obligated to grant the motion because evidence of Talley’s prior

       conviction for armed robbery was relevant and admissible to prove his motive

       for resisting law enforcement. As a result, counsel made a strategic decision not

       to pursue bifurcation but rather to try to exclude Talley’s prior conviction and

       to challenge the State’s evidence by presenting evidence that Talley never

       possessed the handgun. We afford deference to such decisions.



       Court of Appeals of Indiana | Opinion 45A05-1507-PC-1005 | February 8, 2016   Page 9 of 11
[25]   Talley cites Hines v. State, 801 N.E.2d 634 (Ind. 2004), and Pace v. State, 981

       N.E.2d 1253 (Ind. Ct. App. 2013), in support of his claim that the trial court

       would have been compelled to grant bifurcation had it been requested, but those

       cases are factually distinguishable. In Hines, the defendant was charged with

       possession of a firearm by a SVF and robbery, and the prior felony conviction

       was not relevant to the robbery charge. 801 N.E.2d at 635. In Pace, the

       defendant was charged with possession of a firearm by a SVF and Class B

       felony dealing in methamphetamine, and the prior conviction was not relevant

       to the dealing charge. 981 N.E.2d at 1260. By contrast, Talley’s prior

       conviction for armed robbery was relevant to prove his motive to commit the

       offense of resisting law enforcement.


[26]   The post-conviction court did not err in rejecting Talley’s claim that trial

       counsel rendered deficient performance, so it is unnecessary to address the

       element of prejudice. Emerson v. State, 695 N.E.2d 912, 918 (Ind. 1998) (failure

       to establish both elements of a claim of ineffective assistance of counsel “will

       cause the entire claim to fail.”). Nonetheless, we note as to prejudice that, even

       if trial counsel had filed a motion to bifurcate and the trial court had granted the

       motion, the jury still would have heard during the trial on the charges of

       resisting law enforcement that Talley had blurted out to Officer Campos that he

       was a convicted felon. See Ind. Evidence Rule 801(D)(1) (a party-opponent’s

       statements are not hearsay and may be admitted). Thus, the jury would have in

       any event learned that Talley had a prior felony, and it is unclear whether being




       Court of Appeals of Indiana | Opinion 45A05-1507-PC-1005 | February 8, 2016   Page 10 of 11
       told that the prior felony was specifically an armed robbery would have resulted

       in a different outcome.


                                                  Conclusion
[27]   For the reasons stated above, we affirm the judgment of the post-conviction

       court.


[28]   Affirmed.


       Baker, J., and Najam, J., concur.




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