                                                             FILED
                                                         Jun 23 2016, 7:57 am

                                                             CLERK
                                                         Indiana Supreme Court
                                                            Court of Appeals
                                                              and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Stephen T. Owens                                           Gregory F. Zoeller
Public Defender of Indiana                                 Attorney General of Indiana

John Pinnow                                                Brian Reitz
Deputy Public Defender                                     Deputy Attorney General
Indianapolis, Indiana                                      Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Trondo L. Humphrey,                                        June 23, 2016
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           48A02-1508-PC-1238
        v.                                                 Appeal from the Madison Circuit
                                                           Court
State of Indiana,                                          The Honorable Thomas Newman,
Appellee-Respondent.                                       Jr., Judge
                                                           Trial Court Cause No.
                                                           48C03-1206-PC-19



May, Judge.




Court of Appeals of Indiana | Opinion 48A02-1508-PC-1238 | June 23, 2016                 Page 1 of 18
[1]   Trondo L. Humphrey appeals the denial of his petition for post-conviction

      relief. As his trial counsel’s assistance was ineffective and his petition is not

      barred by laches, 1 we reverse and remand.



                              Facts and Procedural History
[2]   Humphrey was convicted of murder in 1996. Our Indiana Supreme Court

      recited the facts of the crime:

               On the night of April 28-29, 1995, Benjamin Laughlin and
               Stephen Sites were driving around a neighborhood in Anderson
               looking for crack cocaine. Sites’ account of events is summarized
               first. Sites was driving his truck. The two had been circling the
               same neighborhood for thirty to forty-five minutes when they
               saw three people in an alley. Believing the three to be drug
               dealers, Laughlin told Sites to pull into the alley. One of the
               three approached the truck on the passenger side and Laughlin
               asked the dealer to get in the cab to discuss a cocaine sale. As



      1
        On cross-appeal, the State argued the post-conviction court erred when it did not find Humphrey’s petition
      barred by laches. The State had raised laches at the post-conviction hearing, but the court’s findings and
      conclusions did not address laches, only ineffective assistance. Those findings and conclusions were
      prepared and submitted by the State and the post-conviction court adopted them verbatim.
      Post-Conviction Rule 1(6) requires the post-conviction court to make specific findings of fact and conclusions
      of law “on all issues presented,” Kelly v. State, 952 N.E.2d 297, 301 (Ind. Ct. App. 2011), so the findings and
      conclusions should have addressed laches. Where the post-conviction court enters findings and conclusions,
      as it is required to do, we cannot affirm the judgment on any legal basis -- rather, we will affirm if the court’s
      findings are sufficient to support the judgment. Lile v. State, 671 N.E.2d 1190, 1192 (Ind. Ct. App. 1996).
      The State does not in its cross-appeal acknowledge the Lile rule or offer explanation why we might be able to
      affirm based on laches despite that rule.
      In an Order issued March 30, 2016, we directed the post-conviction court to issue amended findings and
      conclusions that addressed all issues presented, specifically laches. It did so on April 22, 2016, and it
      determined Humphrey’s post-conviction petition was not barred by laches. As explained below, that was not
      error. It did not otherwise change its original order denying Humphrey’s petition on the ground Humphrey’s
      counsel was not ineffective, which we reverse.



      Court of Appeals of Indiana | Opinion 48A02-1508-PC-1238 | June 23, 2016                             Page 2 of 18
              Sites drove, Laughlin and the dealer quickly exchanged words,
              the dealer drew a gun, Laughlin grabbed it, and the gun
              discharged. Sites saw the barrel of the gun but did not see a
              “flash” because the dealer “had the gun pushed up against
              [Laughlin].” Record at 253. The single shot struck Laughlin in
              the abdomen and the dealer jumped out of the moving truck and
              ran away. Sites testified that the dealer was young, black, had
              short hair, and was about five feet ten inches tall. However, Sites
              was unable to provide a more precise identification of the dealer
              and also could not identify his two comrades waiting nearby.
              Sites estimated that the dealer was in the truck for thirty to forty
              seconds. Sites drove Laughlin to a nearby hospital where he
              eventually died from the wound. A forensic technician examined
              Sites’ truck for fingerprints and blood spatters but was unable to
              recover any physical evidence or discernable fingerprints from
              the vehicle.


[3]           Donnie Smith testified that he was drinking and smoking
              marijuana with [Humphrey] and Roosevelt Brooks on the night
              of the murder in Brooks’ garage near the alley where the shooting
              occurred. The garage door was open so the three had access to
              the alley to sell drugs on the street. At some point a truck
              stopped outside the garage and [Humphrey] went outside to greet
              it, indicating to Smith that he believed the occupants were
              looking for cocaine. Smith heard the door of the truck open and
              close in the alley but testified that he did not hear any shots or
              actually see [Humphrey] approach or enter the truck. The truck
              then “peel[ed] out” and [Humphrey] returned to the garage,
              telling Smith that the “dude” tried to “gank him” or “get him.”
              Record at 278. Smith saw only the back of the truck and could
              not testify to its color or whether it was the vehicle driven by
              Sites that evening. At some point prior to this incident, but not
              in the garage that night, Smith had seen [Humphrey] carrying a
              gun.




      Court of Appeals of Indiana | Opinion 48A02-1508-PC-1238 | June 23, 2016   Page 3 of 18
[4]            On June 16, 1995, Brooks, while in jail on an unrelated charge,
               gave an unsworn written statement to a police detective about the
               events of that night. According to the statement, Brooks was in
               his garage with someone he identified as [Humphrey] from a
               photographic lineup containing pictures of six black males.
               [Humphrey] went out to a blue truck with “white guys” inside,
               Brooks heard a “noise,” and [Humphrey] returned soon
               thereafter, stating that he had shot one of the men. Record at
               310. At trial, Brooks testified that he knew [Humphrey] but was
               not with him or Smith on the night of the shooting. Brooks
               repudiated the statement, which had been admitted to impeach
               the credibility of his courtroom version, and testified in essence
               that it was fabricated due to police pressure.


      Humphrey v. State, 680 N.E.2d 836, 837-38 (Ind. 1997) (footnote omitted).


[5]   In his direct appeal, 2 Humphrey argued the trial court abused its discretion

      when it admitted into evidence Brooks’ statement regarding Humphrey’s

      participation in the murder and erred when it did not admonish the jury to

      consider the statement for impeachment purposes only. 3 Our Indiana Supreme

      Court held Brooks’ prior inconsistent statement was admissible for

      impeachment and, regarding the admonition, “had a proper objection been




      2
        As noted above, the State submitted findings and conclusions that the post-conviction court adopted
      verbatim. One finding says: “On May 29, 1997, the Indiana Court of Appeals affirmed Humphrey’s
      conviction.” (App. at 79.) We did not. Humphrey appealed directly to the Indiana Supreme Court.
      3
        Humphrey also argued the State did not present sufficient evidence he committed murder, the trial court
      abused its discretion when it did not admit an affidavit from Brooks, and the trial court abused its discretion
      when it admitted a photograph of the victim. Humphrey did not raise these issues in his petition for post-
      conviction relief, so we do not address them.

      Court of Appeals of Indiana | Opinion 48A02-1508-PC-1238 | June 23, 2016                            Page 4 of 18
      lodged to the instruction, the court would have been required to entertain it.”

      Id. at 840 (citation to the record omitted).


[6]   On June 6, 2012, Humphrey filed a pro se petition for post-conviction relief and

      requested counsel. On March 14, 2014, Humphrey filed, via counsel, an

      amended petition for post-conviction relief, arguing his trial counsel was

      ineffective because 1) he did not object to the admission of Brooks’ pre-trial

      statement on the correct grounds; 4 2) he did not request an admonition based

      on the admission of Brooks’ pre-trial statement; 3) he did not object to the

      court’s final instruction on prior inconsistent statements; 4) he “erroneously

      endorsed,” (App. at 29), the court’s instruction regarding prior inconsistent

      statements; and 5) he did not tender a correct instruction on prior inconsistent

      statements.


[7]   The post-conviction court held evidentiary hearings on Humphrey’s petition on

      November 10, 2014, and December 22, 2014. On August 6, 2015, it denied

      Humphrey’s petition, finding Humphrey’s trial counsel was not ineffective.



                                  Discussion and Decision




      4
        Counsel objected on foundational grounds, but not hearsay grounds. As our Indiana Supreme Court noted
      in Humphrey’s direct appeal, the statement would have been admissible even if a hearsay objection had been
      successful. Humphrey, 680 N.E.2d at 839. We therefore need not address Humphrey’s allegation of error
      premised on the nature of the objection.

      Court of Appeals of Indiana | Opinion 48A02-1508-PC-1238 | June 23, 2016                      Page 5 of 18
[8]   Post-conviction proceedings are not “super appeals”; rather, they afford

      petitioners a limited opportunity to raise issues that were unavailable or

      unknown at trial and on direct appeal. Wilkes v. State, 984 N.E.2d 1236, 1240

      (Ind. 2013). Post-conviction proceedings are civil in nature, and petitioners

      bear the burden of proving their grounds for relief by a preponderance of the

      evidence. Id. We accept the post-conviction court’s findings of fact unless they

      are clearly erroneous, but we do not defer to its conclusions of law. 5 State v.

      Hollin, 970 N.E.2d 147, 151 (Ind. 2012). We may not reweigh the evidence or

      assess the credibility of the witnesses. Id. at 150.




      5
         In its brief, the State urges us to review the post-conviction court’s judgment with “greater than usual
      deference,” (State’s Br. of Appellee at 14), because the same judge presided over Humphrey’s trial and his
      post-conviction proceedings. It directs us to Hinesley v. State, 999 N.E.2d 975, 982 (Ind. Ct. App. 2013), reh’g
      denied, trans. denied, where we said “a post-conviction court’s findings and judgment should be entitled to
      ‘greater than usual deference’ when the post-conviction judge is the same judge who conducted the original
      trial.”
      We decline to review this case with an enhanced level of deference because, as noted above, the post-
      conviction court adopted, verbatim, findings and conclusions the State submitted. Our Indiana Supreme
      Court noted in Prowell v. State, 741 N.E.2d 704, 708-09 (Ind. 2001), that:
               It is not uncommon for a trial court to enter findings that are verbatim reproductions of
               submissions by the prevailing party. The trial courts of this state are faced with an
               enormous volume of cases and few have the law clerks and other resources that would be
               available in a more perfect world to help craft more elegant trial court findings and legal
               reasoning. We recognize that the need to keep the docket moving is properly a high
               priority of our trial bench. For this reason, we do not prohibit the practice of adopting a
               party’s proposed findings. But when this occurs, there is an inevitable erosion of the
               confidence of an appellate court that the findings reflect the considered judgment of the
               trial court.
      In Prowell, most of the statements in the findings of fact and conclusions of law were correct “if viewed in
      isolation, but many are presented out of context and, as a result, are significantly misleading. We find some
      of the critical findings of the postconviction court to be clearly erroneous as that term is used in Trial Rule
      52(A).” Id. at 709. We cannot in the case before us reconcile the “greater than usual deference” the State
      urges with the “inevitable erosion of the confidence of an appellate court that the [State-submitted] findings
      reflect the considered judgment” of Humphrey’s post-conviction court. That is particularly true in this case
      because, as noted, there are omissions and findings of questionable factual and legal accuracy that have
      eroded our confidence.

      Court of Appeals of Indiana | Opinion 48A02-1508-PC-1238 | June 23, 2016                            Page 6 of 18
                                                  I.       Laches
[9]    Humphrey did not seek post-conviction relief until fifteen years after his direct

       appeal was decided. The post-conviction court determined his petition was not

       barred by laches, and that was not clearly erroneous.


[10]   Because the State had the burden of proving laches as an affirmative defense,

       the applicable standard of review requires that we affirm unless we find the

       judgment clearly erroneous. Armstrong v. State, 747 N.E.2d 1119, 1120 (Ind.

       2001). This is a review for sufficiency of evidence. Id. We will not reweigh

       evidence or assess credibility of witnesses. Rather, we look only to the evidence

       and reasonable inferences favorable to the judgment, and we will affirm if there

       is probative evidence to support the post-conviction court’s judgment. Id.


[11]   “The equitable doctrine of laches operates to bar consideration of the merits of

       a claim or right of one who has neglected for an unreasonable time, under

       circumstances permitting due diligence, to do what in law should have been

       done.” Id. “For laches to apply, the State must prove by a preponderance of

       the evidence that the petitioner unreasonably delayed in seeking relief and that

       the State is prejudiced by the delay.” Id. (emphasis added).


[12]   The post-conviction court determined “[t]he State did not present evidence on

       the unreasonable delay element.” (Findings of Fact and Conclusions of Law on

       Laches at 3.) It heard testimony by Humphrey’s appellate counsel that he never

       would have talked to Humphrey about post-conviction relief. Counsel testified

       he did not raise ineffective assistance on direct appeal because “the

       Court of Appeals of Indiana | Opinion 48A02-1508-PC-1238 | June 23, 2016   Page 7 of 18
       conventional wisdom” was that “you don’t raise ineffectiveness of trial counsel

       on - - on a direct appeal.” (Tr. at 33-34.) But counsel also said he was reluctant

       to raise ineffectiveness because he had been involved in a waiver hearing and “I

       would almost have been raising myself ineffective.” (Id. at 34.)


[13]   As there was no evidence Humphrey knew post-conviction remedies were

       available to him, we decline the State’s invitation to find he was “on bright-

       lights notice about this issue and sat on [his] hands for a decade and a half.”

       (Br. of Appellee at 16.) We acknowledge that the State need not


               supply direct proof of petitioner’s knowledge. Circumstantial
               evidence is sufficient to show state of mind. Facts from which a
               reasonable finder of fact could infer petitioner’s knowledge may
               support a finding of laches.


                                                      *****


               While the evidence in some cases has provided the proverbial
               “smoking gun” of actual knowledge of post-conviction remedies,
               no one factor is controlling. Repeated contacts with the criminal
               justice system, consultation with attorneys and incarceration in a
               penal institution with legal facilities are all facts from which the
               fact finder may infer knowledge. The determination of
               sufficiency, of course, must be made by the trial court; if there is
               probative evidence to support its determination, we will affirm
               the trial court’s judgment. The court is not obligated to infer
               knowledge from any particular set of circumstances, nor is it
               bound to accept petitioner’s assertions of ignorance. The State
               must, however, present some objective facts from which the court
               may draw a reasonable inference of knowledge.


       Perry v. State, 512 N.E.2d 841, 844-45 (Ind. 1987) (citation omitted), reh’g denied.
       Court of Appeals of Indiana | Opinion 48A02-1508-PC-1238 | June 23, 2016   Page 8 of 18
[14]   As there was probative evidence to permit a determination Humphrey did not

       know post-conviction remedies were available to him, the State did not prove

       Humphrey’s delay was unreasonable. 6 Moreover, the post-conviction court

       expressly found the State’s key witnesses were available to testify in the event of

       a retrial, and “[t]he State has not shown the passage of time has affected their

       memories or ability to testify at a retrial.” (Findings of Fact and Conclusions of

       Law on Laches at 3.) In other words, the post-conviction court, after having

       considered the State’s arguments and evidence, concluded the State had not

       met its burden to demonstrate prejudice as a result of Humphrey’s delay. We

       cannot say that judgment is clearly erroneous. See Armstrong, 747 N.E.2d at

       1120 (for laches to apply, the State must prove both unreasonable delay and

       prejudice from the delay). As we cannot find clear error, Humphrey’s petition

       for post-conviction relief is not barred by laches.


                                       II.       Deficient Performance
[15]   To succeed on a claim of ineffective assistance of counsel, a petitioner must

       show not only that his trial counsel’s representation fell below an objective

       standard of reasonableness, but also that counsel’s errors were so serious as to

       deprive him of a fair trial because of a reasonable probability that, but for




       6
         The State asserts Humphrey’s fifteen-year delay in petitioning for post-conviction relief “was per se
       unreasonable.” (Br. of Appellee at 11.) It offers no legal authority to support that assertion, and we decline
       to hold a fifteen-year delay is per se unreasonable. To the contrary, we have on many occasions explicitly
       stated “lapse of time does not in and of itself constitute laches,” e.g., Kindred v. State, 514 N.E.2d 314, 317 (Ind.
       Ct. App. 1987) (emphasis added), reh’g denied, trans. denied. Per se means “[o]f, in, or by itself.” Black’s Law
       Dictionary 1162 (7th ed. 1999).

       Court of Appeals of Indiana | Opinion 48A02-1508-PC-1238 | June 23, 2016                                Page 9 of 18
       counsel’s unprofessional errors, the result would have been different. Stevens v.

       State, 770 N.E.2d 739, 746 (Ind. 2002), reh’g denied, cert. denied. A reasonable

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

       Id. There is a strong presumption that counsel rendered adequate assistance

       and made all significant decisions in the exercise of reasonable professional

       judgment. Id.


[16]   Humphrey’s counsel was deficient for not asking that the jury be correctly

       instructed that Brooks’ unsworn statement could be considered only for

       impeachment, for not objecting to the trial court’s incorrect instruction, for not

       tendering a correct instruction, and for erroneously telling the jury in closing

       argument that the statement could be used in deciding whether Humphrey was

       guilty. 7


[17]   Humphrey’s argument is centered on the unsworn statement by Roosevelt

       Brooks to the effect he was with Humphrey the night of the shooting,

       Humphrey went to the truck Laughlin was riding in, Brooks heard a noise, and

       Humphrey returned and said he had shot one of the men in the truck. Brooks

       disavowed that statement at trial. While there was evidence Humphrey was at

       the scene when the victim was shot, Brooks’ statement was the only evidence

       specifically identifying Humphrey as the shooter.




       7
         Humphrey argues counsel was ineffective for other reasons. But as we find ineffectiveness based on the
       instructional errors and counsel’s closing argument, we need not consider the other allegations of
       ineffectiveness.

       Court of Appeals of Indiana | Opinion 48A02-1508-PC-1238 | June 23, 2016                      Page 10 of 18
                                           1.      Instructional errors

[18]   The trial court admitted that hearsay statement but did not limit its use to

       impeachment. It instead erroneously instructed the jury it could consider the

       statement as substantive evidence of Humphrey’s guilt. Our Indiana Supreme

       Court explained why Brooks’ prior unsworn statement should not have been

       admitted as substantive evidence:


               [T]he statement was “classic hearsay” not ordinarily admissible
               as substantive evidence. The statement in question is clearly
               hearsay if offered to prove the facts contained because it was
               given out of court notwithstanding that Brooks was on the stand.
               This is precisely the point decided in Modesitt v. State, 578 N.E.2d
               649 (Ind. 1991), which overruled Patterson v. State, 263 Ind. 55,
               324 N.E.2d 482 (1975). Patterson had held that out-of-court
               statements not given under oath could be considered as
               substantive evidence so long as the declarant was available for
               cross-examination at trial concerning the statement. In its place,
               Modesitt adopted Federal Rule of Evidence 801(d)(1) as the law of
               Indiana. The Indiana Rules of Evidence have since been
               adopted, and accomplish by Rule what Modesitt did by decision.
               Indiana Evidence Rule 801(d)(1)(A) provides that a statement is
               not hearsay if “[t]he declarant testifies at the trial or hearing and
               is subject to cross-examination concerning the statement, and the
               statement is . . . inconsistent with the declarant’s testimony and
               was given under oath subject to the penalty of perjury at a trial,
               hearing or other proceeding, or in a deposition[.]” Because the
               prior statement was not under oath, it was not admissible under
               this Rule or any other. It was, however, admissible to impeach
               Brooks.




       Court of Appeals of Indiana | Opinion 48A02-1508-PC-1238 | June 23, 2016   Page 11 of 18
       Humphrey, 680 N.E.2d at 838-39. But the Humphrey Court determined on direct

       appeal that Humphrey had waived his argument that the jury was wrongly

       allowed to consider the statement as substantive evidence. Id. at 840.


[19]   In its final instructions to the jury, Humphrey’s trial court gave an erroneous

       “unlimiting” instruction, telling jurors they were free to consider a prior

       inconsistent statement both to impeach and as substantive evidence bearing on

       Humphrey’s guilt or innocence. That instruction “misstated the current law

       and instructed the jury that it could consider as substantive evidence an

       important piece of evidence that was admissible only for impeachment.” Id.

       Humphrey did not object to the instruction. The trial court explicitly asked

       Humphrey’s counsel if he had any objection to the proposed instructions and

       counsel answered in the negative. Nor did Humphrey’s counsel tender a

       correct instruction. Counsel’s failure to object to or correct the court’s

       instructional error was below the standard reasonably expected of counsel.


                                            2.       Closing argument

[20]   Not only did counsel decline to object to an instruction that misstated the law

       and erroneously told the jury that it could consider Brooks’ statement as

       substantive evidence, in his closing argument he misstated the law in the same

       way the jury instruction did. Counsel told the jury it could “consider the out-of-

       court statements as evidence in determining the guilt or innocence of

       [Humphrey] for the crime charged. That’s the law, plain and simple. That’s

       the instructions. You have to follow what . . . follow what you’re presented.”

       (Trial R. at 488-89).
       Court of Appeals of Indiana | Opinion 48A02-1508-PC-1238 | June 23, 2016     Page 12 of 18
[21]   As explained above, that was wrong and counsel incorrectly told the jury it

       could consider highly damaging evidence against Humphrey to determine

       whether he was guilty. The jury should have been told it could consider

       Brooks’ statement identifying Humphrey as the shooter only to determine

       whether Brooks was credible. Counsel was deficient for making the same

       erroneous statement of law as did the trial court in its instructions.


                                              3.       Trial strategy

[22]   Counsel is afforded considerable discretion in choosing strategy and tactics, and

       these decisions are entitled to deferential review. Id. at 746-47. Isolated

       mistakes, poor strategy, inexperience, and instances of bad judgment do not

       necessarily render representation ineffective. Id. at 747. On appeal, we do not

       second guess counsel’s strategic decisions requiring reasonable professional

       judgment even if the strategy or tactic, in hindsight, did not best serve the

       defendant’s interests. Elisea v. State, 777 N.E.2d 46, 50 (Ind. Ct. App. 2002).


[23]   Trial strategy is not subject to attack through an ineffective assistance of counsel

       claim unless the strategy is so deficient or unreasonable as to fall outside the

       objective standard of reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141

       (Ind. 1998). This was. If the decisions by Humphrey’s counsel were, as the

       State argues, part of a “strategy,” we hold a strategy premised on allowing and

       making erroneous statements of law that improperly permit a jury to consider

       as substantive evidence of a client’s guilt a statement that was admissible only

       for impeachment is a strategy “so deficient or unreasonable as to fall outside of

       the objective standard of reasonableness.” Id. And see Roark v. State, 573
       Court of Appeals of Indiana | Opinion 48A02-1508-PC-1238 | June 23, 2016   Page 13 of 18
       N.E.2d 881, 883 (Ind. 1991) (noting on appeal “apparent inadequacy of

       counsel’s performance at trial” for failure to tender a complete instruction on

       voluntary manslaughter). We decline the State’s invitation to characterize as

       “strategic” counsel’s apparent acquiescence to an erroneous jury instruction and

       counsel’s own endorsement in final argument of a misstatement of law that

       permitted the jury to consider highly damaging evidence against his client for

       an improper purpose.


[24]   Our Indiana Supreme Court addressed failure to correct an erroneous statement

       of law in Baer v. State, 942 N.E.2d 80, 99-100 (Ind. 2011), reh’g denied. Baer

       argued counsel was ineffective for declining to object to misstatements of law

       the prosecutor made. Our Supreme Court disagreed:

               It seems likely that defense counsel consciously chose not to
               object to the prosecutor’s misstatements as part of their general
               strategy of letting the prosecutor discredit himself. At PCR,
               [Counsel] testified that he . . . knew [the prosecutor] was capable
               of overstating his case to the jury. Trial counsel planned to
               correctly state the law to the jury when it was their turn, have the
               judge echo their statement of the law through the jury
               instructions, and hope the jury would decide from the contrast
               that the prosecutor was not credible.


               Consistent with this approach, defense counsel correctly stated
               the law in closing argument. . . . And the court’s instructions
               correctly stated the law and made it clear that they took
               precedence over arguments by counsel on what the law was. It
               was not deficient for [appellate counsel] to take a pass on this
               potential claim.



       Court of Appeals of Indiana | Opinion 48A02-1508-PC-1238 | June 23, 2016   Page 14 of 18
       Id.


[25]   In the case before us, by contrast, Humphrey’s counsel did not correctly state

       the law in closing argument, nor did the trial court in its jury instructions. We

       cannot say permitting and repeating an incorrect statement of law that told the

       jury it could consider damaging evidence against Humphrey for an improper

       purpose represented a reasonable trial strategy. Counsel’s performance was

       deficient.


                                                  III. Prejudice
[26]   To succeed on a claim of ineffective assistance of counsel, a petitioner must

       show counsel’s errors were so serious as to deprive him of a fair trial because of

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

       would have been different. 8 Overstreet v. State, 877 N.E.2d 144, 152 (Ind. 2007),




       8
         This is sometimes referred to as the “prejudice” prong of the ineffective assistance analysis. Segura v. State,
       749 N.E.2d 496, 501 (Ind. 2001). We must address the erroneous standard for prejudice the State presented
       to the post-conviction court and the court adopted.
       The court concluded Humphrey “presented no evidence of an error by trial counsel so egregious that in all
       probability that error caused Humphrey’s conviction.” (App. at 82) (emphasis added). The court erred to the
       extent it required Humphrey to meet that standard to show prejudice, and we admonish the State to refrain
       from inaccurately characterizing the controlling law in findings and conclusions it submits.
       The standard for demonstrating prejudice is: “A defendant establishes prejudice by demonstrating a
       reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have
       been different.” Peak v. State, 26 N.E.3d 1010, 1014 (Ind. Ct. App. 2015) (emphasis added). A reasonable
       probability is a probability sufficient to undermine confidence in the outcome. Id.
       As explained elsewhere in this decision, our confidence in this post-conviction order has been undermined in
       light of numerous errors in the court’s findings and conclusions. The language Humphrey’s post-conviction
       court used, which would require a showing of error by trial counsel “so egregious that in all probability that
       error caused” the conviction, is not found in any reported Indiana decision. It does appear in one unreported
       decision, in the form of a conclusion of law entered in a post-conviction case decided in the same court as
       was Humphrey’s, but by a different judge. Winbush v. State, No. 48A02-1401-PC-32, 2014 WL 4101667 (Ind.

       Court of Appeals of Indiana | Opinion 48A02-1508-PC-1238 | June 23, 2016                            Page 15 of 18
       cert. denied. Humphrey was prejudiced by the admission, as substantive

       evidence, of Brooks’ statement.


[27]   On direct appeal, our Supreme Court characterized the evidence against

       Humphrey as “extremely thin”:


                Although Brooks’ prior inconsistent statement could have been
                precluded from consideration as substantive evidence for the
                reasons explained, Humphrey’s failure to object on hearsay
                grounds or request a limiting instruction allowed the jury to
                consider the statement in deciding Humphrey’s culpability.
                Indeed, the instructions explicitly permitted jurors to consider it
                as substantive evidence under the now disapproved Patterson rule.


                                                       *****


                Humphrey contends that in the absence of Brooks’ out-of-court
                statement naming him as the assailant, there is no evidence tying
                him to Laughlin’s murder. Identity is indeed the crucial
                evidentiary issue here. The State’s case was wholly
                circumstantial and would have been extremely thin if Brooks’
                statement had not been before the jury as substantive evidence.
                No physical evidence linked the defendant to the crime and the
                State’s case hinged on the testimony of reluctant witnesses who
                contradicted their own pretrial statements about Humphrey’s
                possible involvement.


       Humphrey, 680 N.E.2d at 840-41.




       Ct. App. Aug. 20, 2014), trans. denied. That decision does not indicate whether the post-conviction judge
       adopted verbatim findings and conclusions that the State submitted and that included the incorrect standard.

       Court of Appeals of Indiana | Opinion 48A02-1508-PC-1238 | June 23, 2016                        Page 16 of 18
[28]   Humphrey was prejudiced because Brooks’ statement, which was the only

       evidence that specifically identified Humphrey as the shooter in a case where

       “[i]dentity is . . . the crucial evidentiary issue,” should not have been admitted

       as substantive evidence of his guilt. In Maymon v. State, 870 N.E.2d 523, 528

       (Ind. Ct. App. 2007), on reh’g, 875 N.E.2d 375 (Ind. Ct. App. 2007), trans.

       denied, we held Maymon was prejudiced by counsel’s ineffective assistance

       where counsel did not request severance as of right of four counts of burglary.

       The only evidence of Maymon’s intent to commit theft in two of the burglaries

       was the fact that in the other two burglaries he had also committed theft.

       Because the evidence of the two burglaries where theft did occur would have

       been inadmissible at separate trials for the two burglaries where thefts did not

       occur, Maymon was prejudiced by his trial counsel’s failure to move for

       severance of the burglary charges. Id. at 529. Similarly, in this case, counsel

       did not submit a correct instruction or object to the court’s instruction, and

       incorrectly told the jury it could consider Brooks’ statement in determining

       Humphrey’s guilt or innocence. Humphrey was prejudiced by counsel’s errors

       that allowed the jury to consider as substantive evidence the only evidence that

       identified Humphrey as the shooter.



                                                Conclusion
[29]   As Humphrey’s counsel’s performance was deficient and the deficiencies

       prejudiced Humphrey, we reverse the denial of Humphrey’s petition for post-

       conviction relief and remand for a new trial.


       Court of Appeals of Indiana | Opinion 48A02-1508-PC-1238 | June 23, 2016   Page 17 of 18
[30]   Reversed and remanded.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Opinion 48A02-1508-PC-1238 | June 23, 2016   Page 18 of 18
