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                          FILED
establishing the defense of res judicata,                  Sep 19 2012, 9:00 am
collateral estoppel, or the law of the
case.                                                             CLERK
                                                                of the supreme court,
                                                                court of appeals and
                                                                       tax court




APPELLANT PRO SE:                               ATTORNEYS FOR APPELLEE:

KENNETH KELLY                                   GREGORY F. ZOELLER
Carlisle, Indiana                               Attorney General of Indiana

                                                J.T. WHITEHEAD
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

KENNETH KELLY,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 30A01-1112-PC-612
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE HANCOCK SUPERIOR COURT
                            The Honorable Terry Snow, Judge
                        The Honorable Larry Amick, Judge Pro Tem
                             Cause No. 30D01-0607-PC-127


                                    September 19, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

          Kenneth Kelly appeals the denial of his petition for post-conviction relief. We

affirm.

                                            Issue

          Kelly raises four issues, which we consolidate and restate as whether he was

constructively denied counsel at his competency and sentencing hearings.

                                            Facts

          On August 25, 2004, the State charged Kelly with murder. Attorneys James

McNew and Andria Kerney represented Kelly. A plea agreement was filed on September

2, 2004, and a guilty plea hearing was held on November 8, 2004. According to the plea

agreement, in exchange for his guilty plea to the murder charge, the prosecutor would

recommend a sentence of fifty-five years executed. The agreement also called for Kelly

to cooperate in the investigation of the murder and to testify truthfully regarding any

other person’s involvement in the murder.

          On December 15, 2004, McNew filed a motion for determination of competency

after Kelly apparently made a suicide pact with a co-defendant. A competency hearing

and a sentencing hearing were scheduled for January 25, 2005. On January 25, 2005,

Kelly’s attorneys filed a motion to withdraw, which referenced Indiana Professional

Conduct Rule 1.6(b)(2). At the beginning of the hearing, the trial court announced that it

would deal with the motion to withdraw at the conclusion of the hearing.




                                             2
       During the competency hearing, McNew argued that Kelly was not competent to

assist in his defense. Relying on the reports of Dr. Ned Masbaum and Dr. Don Olive,

however, the trial court found Kelly to be competent.

       At the conclusion of the competency hearing, the State moved to continue the

sentencing hearing. The State’s request was based on Kelly’s attorneys’ reference to

Professional Conduct Rule 1.6(b)(2) in the motion to withdraw. The prosecutor argued

that the Rule:

                 says that a lawyer may reveal information relating to the
                 representation of a client to the extent the lawyer reasonably
                 believes necessary to prevent the client from committing a
                 crime or from committing fraud that is reasonably certain to
                 resolve [sic] substantial injury to the financial interest or
                 property of another and in furtherance of which the client has
                 used or is using the lawyer’s services. Certainly your honor,
                 uh the State believes that such an allegation is being made,
                 that there is fraud either attempted to be perpetrated on this
                 Court or going to be perpetrated on this Court which is how I
                 read the statement on the Amended Motion to Withdraw – the
                 State must, in all interests of justice, be allowed time to
                 investigate such an allegation, to investigate uh – what is
                 going on at the present time rather than push forward with the
                 sentencing hearing that could resolved [sic] in a miscarriage
                 of justice for the victims of this crime and for the citizens of
                 the County and the State of Indiana . . . .

App. p. 29.       When asked to respond, McNew said he understood the trial court’s

procedure regarding ruling on the motion to withdraw and stated, “I stand on my Motion

to Withdraw.” Id. The trial court reiterated that it would deal with the motion to

withdraw immediately after the sentencing hearing. The trial court then asked McNew if

he requested any continuance of the sentencing hearing on behalf of Kelly. McNew

responded:

                                                3
               Your honor, I am reluctant to go any further in my
               representation of Mr. Kelly – I would like to point out to the
               Court that I find a distinction between the Court’s analysis of
               what is presented before the Court today – the Competency
               Hearing was an issue that arose and was in fact brought to the
               Court’s attention by myself – when I did represent and had
               every intention of representing Mr. Kelly . . . . Secondly,
               however, the Court now wishes to proceed to a sentencing
               hearing after I have now filed my Motion to Withdraw my
               Appearance for the professional reasons I have outlined. I am
               very uncomfortable with the anaclisis [sic] that the Court has
               made and now the Court is putting me in a position to either
               agree or not object to a continuance made by the State on
               behalf of my client who, I am of the frame of mind, that I no
               longer represent and I am unable to in my professional mind
               to do so adequately on behalf of Mr. Kelly. I am no longer
               aware what is in my client’s best interests because as
               previously stated, I do not believe Mr. Kelly is aware as to
               what is in his best interests.

Id. at 30-31. The trial court stated that it understood and viewed McNew as not taking a

position on the issue of continuing the sentencing hearing other than to reiterate the

request to withdraw.       The trial court ultimately denied the State’s request for a

continuance.

      After a short recess, the parties reconvened for the sentencing hearing. The State

renewed its motion to continue based on McNew’s statement that he could not represent

Kelly because of his belief that Kelly was incompetent. The prosecutor stated:

               we believe that any hearing that would proceed could create
               an issue on appeal no matter which way this Court ruled as to
               whether or not Mr. Kelly is represented at this hearing –
               certainly based upon the state of counsel basically saying he
               is not representing Mr. Kelly uh – at the competency hearing
               and I would believe based upon that statement the same
               would hold true at this hearing, therefore I think we have an
               unrepresented claim here – at least in the eyes of the appellate
               court . . . I believe the appellate court would say that he is not

                                               4
              competent at the present time to be counsel for Mr. Kelly
              based upon his own beliefs in this statement.

Id. at 33. McNew had no response. The trial court explained that Kelly “is represented

by counsel, remains represented by counsel,” and that he has been found to be competent.

Id. The trial court again denied the State’s motion to continue. The State then requested

the trial court to stay sentencing so that it could pursue an interlocutory appeal and certify

the issues for interlocutory appeal. The trial court denied the State’s request.

       The trial court then questioned Kelly about the accuracy of the presentence

investigation report and about the presentence addendum. No witnesses were called on

behalf of Kelly or the State. The trial court read into the record a letter from the victim’s

family that had been included in the presentence addendum. When asked by the trial

court, Kelly and the prosecutor said there was no reason not to accept the plea agreement

and to sentence Kelly pursuant to it. The trial court explained its role in the sentencing

process in light of the plea agreement, specifically that “it can accept or reject his

agreement – it cannot modify it.” Id. at 41. The trial court noted that the aggravators of

murder for hire and lying in wait could have been a basis for the State to pursue either the

death penalty or life without parole.        After analyzing the actual aggravators and

mitigators at issue, the trial court accepted the plea agreement and sentenced Kelly to

fifty-five years executed. After Kelly was removed from the courtroom, the trial court

granted the motion to withdraw.

       On April 19, 2010, Kelly filed a petition for post-conviction relief, asserting that

he was denied effective assistance of counsel at the competency and sentencing hearings.


                                              5
His petition was summarily denied. Kelly appealed, and we reversed and remanded for

an evidentiary hearing. See Kelly v. State, 952 N.E.2d 297 (Ind. Ct. App. 2011). On

December 13, 2011, the post-conviction court held an evidentiary hearing, at which

McNew testified. On December 14, 2011, the post-conviction denied Kelly’s petition.

The post-conviction court’s findings and conclusions provided in part:

             12. Court finds that Mr. McNew’s statements during the
             sentencing where [sic], in fact, argument and once rejected by
             the Court, had no effect on his ability or desire to represent
             the best interest of his client.

             13. It is clear by the transcript that the Defendant entered into
             a plea agreement, made no attempt to withdraw it, accepted
             the benefits of the agreement by limiting the State’s ability to
             file additional counts or aggravators and has enjoyed the
             fruits of the agreement since 2005.

             14. The Petitioner points to comments by the Deputy
             Prosecuting Attorney on this case, Mr. Nelson, indicating he
             didn’t think that Mr. McNew was representing the Defendant
             and that he didn’t think the Court of Appeals would accept
             that. However, the Court again notes that that was argument
             and the Court declined to accept said argument. Because the
             Deputy Prosecutor says it, doesn’t make it so.

                                        *****

             18.     Mr. McNew testified that the reason he felt
             uncomfortable in proceeding on, is because of the
             Defendant’s statements to him indicating that he would not
             comply with the plea agreement thereby, leaving the
             Defendant open to additional and more severe charges and
             penalties which would be detrimental to his client’s interest.
             However, once the Court declined to let him withdraw, Mr.
             McNew and Ms. Kerney proceed as attorney [sic] of record,
             representing the best interest of their client.




                                            6
             19. The record clearly reflects that Mr. McNew and Ms.
             Kerney represented the Petitioner, Kenneth Kelly, in a
             professional and competent manner.

             20. The record reflects that Mr. McNew and Ms. Kerney
             were present during all of the critical stages of the
             prosecution, put in numerous hours of preparation, and were
             fully adversarial to the State up to and including the
             sentencing hearing where they ensured that the rights of the
             Defendant were protected.

                    Wherefore, the Court now finds that the Defendant,
             was, in fact, represented by competent counsel, that counsel
             was present during all critical stages of the prosecution, and
             that said representation was professional and effective and
             meets the requirements of the U.S. and Indiana Constitutions.
             Motion for Post Conviction relief is denied.

App. pp. 122-24. Kelly now appeals.

                                        Analysis

      “The petitioner in a post-conviction proceeding bears the burden of establishing

grounds for relief by a preponderance of the evidence.” Kubsch v. State, 934 N.E.2d

1138, 1144 (Ind. 2010). Because a petitioner appealing the denial of post-conviction

relief is appealing from a negative judgment, to prevail on appeal, the petitioner must

show that the evidence as a whole leads unerringly and unmistakably to a conclusion

opposite that reached by the post-conviction court. Id. Further, although we do not defer

to a post-conviction court’s legal conclusions, the court’s findings and judgment will be

reversed only upon a showing of clear error—that which leaves us with a definite and

firm conviction that a mistake has been made. Id.

      “To establish a post-conviction claim alleging the violation of the Sixth

Amendment right to effective assistance of counsel, a defendant must establish before the

                                           7
post-conviction court the two components set forth in Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984).” Id. at 1147. First, a defendant must show

that counsel’s performance was deficient by establishing that counsel’s representation fell

below an objective standard of reasonableness and that “‘counsel made errors so serious

that counsel was not functioning as ‘counsel’ guaranteed to the defendant by the Sixth

Amendment.’”      Id. (quoting Strickland, 466 U.S. at 687, 104 S. Ct. at 2064).           A

defendant must also show that the deficient performance prejudiced the defense by

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

the result of the proceeding would have been different.           Id.   “Further, counsel’s

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

evidence to overcome this presumption.” Id.

       Kelly argues that he was constructively denied counsel at the competency and

sentencing hearings. Kelly’s argument is based on United States v. Cronic, 466 U.S. 648,

104 S. Ct. 2039 (1984).

              In Cronic, the Supreme Court recognized that in certain
              limited circumstances of extreme magnitude, prejudice to a
              criminal defendant is so likely that an inquiry into counsel’s
              actual performance is not required. Stated differently, a
              presumption of ineffectiveness arises in certain extreme
              circumstances without resort to the traditional two-prong
              Strickland analysis. The Court in Cronic identified three
              circumstances justifying such a presumption: (1) the complete
              denial of counsel; (2) situations where counsel entirely fails to
              subject the prosecution’s case to meaningful adversarial
              testing; and (3) situations where surrounding circumstances
              are such that, “although counsel is available to assist the
              accused during trial, the likelihood that any lawyer, even a
              fully competent one, could provide effective assistance is so


                                             8
              small that a presumption of prejudice is appropriate without
              inquiry into the actual conduct of the trial.”

Ward v. State, 969 N.E.2d 46, 77 (Ind. 2012) (quoting Cronic, 466 U.S. at 659-60, 104 S.

Ct. at 2047) (citations omitted).

       According to Kelly, his attorneys entirely failed to subject the State’s case to

meaningful adversarial testing. Regarding the competency hearing, Kelly claims that,

because McNew and Kerney did not believe they were counsel, they never conducted any

investigation, did not provide any doctor or the trial court any information about Kelly,

and did not attempt to litigate the competency determination in any way. The record does

not support these assertions.

       McNew repeatedly testified at the post-conviction relief hearing that he did

represent Kelly until the trial court granted the motion to withdraw at the conclusion of

the sentencing hearing. When Kelly questioned McNew about the statement McNew

made at the conclusion of the competency hearing regarding the State’s request for a

continuance in which McNew indicated he was in the frame of mind that he no longer

represented Kelly, McNew explained that those statements were part of his argument to

the trial court regarding his professional concerns about continuing to represent Kelly

without revealing conversations he had had with Kelly. McNew later explained at the

post-conviction relief hearing that Kelly had informed McNew that he would not testify

against his girlfriend, thereby not fulfilling the terms of the plea agreement. McNew was

concerned that the State could then withdraw the plea agreement and seek the death




                                           9
penalty or life without parole. When taken in context, McNew’s statements do not

establish that he did not actually represent Kelly at the competency hearing.

        Likewise, the State’s requests to continue and to stay sentencing pending an

interlocutory appeal and the arguments in support of such do not conclusively establish

that McNew did not represent Kelly at the competency hearing. A complete review of

the record indicates that the prosecutor initially moved for a continuance out of concern

that a fraud was being or was going to be perpetrated on the trial court, not out of concern

that Kelly’s right to counsel was not being fulfilled. Further, the mere fact that the

prosecutor believed that proceeding with the sentencing hearing “could create an issue on

appeal” and that McNew’s statements created “an unrepresented claim” for appeal, does

not establish that Kelly was actually denied the assistance of counsel at the competency

hearing. App. p. 33.

        To the contrary, at the competency hearing, McNew explained that he filed the

motion for determination of competency after Kelly entered into a suicide pact with a co-

defendant. The record indicates that two court-appointed doctors evaluated Kelly and

concluded he was competent. McNew argued to the trial court that those reports were

cursory in nature and identified Kelly as being anti-social and narcissistic and that Kelly

was unable to assist McNew in his representation of Kelly.                       The record of the

competency hearing shows that this was not a situation where counsel entirely failed to

subject the State’s case to meaningful adversarial testing.1


1
  In his brief Kelly suggests that his attorneys should have obtained records about Kelly’s mental health
history, and talked to his family, coworkers, and co-defendants about his mental state. Kelly, however,
                                                   10
       As for the sentencing hearing, Kelly reiterates the statements made by McNew and

the prosecutor between the competency hearing and sentencing hearing relating to the

State’s motion for a continuance. Again, these assertions were arguments by the parties

and do not conclusively establish that counsel entirely failed to subject the prosecution’s

case to meaningful adversarial testing.

       Although McNew was not particularly involved in the sentencing hearing, neither

was the prosecutor, who only informed the trial court of the victim’s family’s desire to

make a statement. During the hearing, the trial court questioned Kelly regarding the

accuracy of the presentence investigation report and the presentence addendum, both of

which Kelly had previously reviewed with counsel. Neither party called witnesses, and

Kelly declined to make a statement regarding his sentence. Based on the terms of the

plea agreement, which included a sentencing recommendation of fifty-five years, we

cannot say that the lack of participation by McNew at the sentencing hearing

conclusively establishes that he entirely failed to subject the prosecution’s case to

meaningful adversarial testing.

       Instead, a complete review of the record shows that McNew had reviewed the case

and it became apparent to him that aggravators existed that would have allowed the State

to file death penalty or life without parole, that Kelly’s co-defendants had been charged

with murder and conspiracy to commit murder and the State was seeking sentences of life

without parole, that Kelly, the shooter, who had killed a man in exchange for a car,



did not present any such evidence at the post-conviction relief hearing. This unsupported assertion does
not establish that he was constructively denied his right to counsel.
                                                  11
secured a plea agreement in which the State recommended a sentence of fifty-five years,

the presumptive sentence for murder, and that Kelly was contemplating reneging on the

plea agreement, which would have allowed the State to pursue additional charges or a

more severe penalty. McNew considered the plea agreement to be “reasonable” and

“charitable.” Tr. p. 14. Under these circumstances, Kelly has not shown that McNew’s

conduct at the sentencing hearing entirely failed to subject the prosecution’s case to

meaningful adversarial testing.2

        Finally, Kelly argues that the trial court failed to recognize that he was not

represented by counsel at the hearings and blatantly refused to allow Kelly or the State to

pursue an interlocutory appeal. Kelly asserts that McNew had an affirmative duty to file

an emergency writ of mandamus on the grounds that the trial court was unfaithful to the

law and showed a rational inference of partiality in violation of the Code of Judicial

Conduct. According to Kelly, McNew’s failure to petition for a writ caused Kelly “to

face ‘armed gladiators’, specifically, the State of Indiana without the benefit of counsel

by his side.”      Appellant’s Br. p. 7.         Kelly claims that this amounted to deficient

performance and caused him prejudice, “whereby he was constructively deprived of any

counsel whatsoever, which satisfies the narrow category of situations where prejudice is

presumed.” Id. at 8. Quite simply, we do not agree with Kelly that the failure to




2
  Kelly also suggests that, had he enjoyed the benefit of counsel during the sentencing hearing, he would
have been informed that he could set aside his guilty plea pursuant to Indiana Code Section 35-35-1-4.
The fact that Kelly was not informed of this statutory provision, without more, does not establish that he
was constructively denied counsel.
                                                   12
immediately challenge the trial court’s rulings constructively deprived him of the right

counsel under Cronic.3

       Under these circumstances, we will not presume that counsel was ineffective at the

competency and sentencing hearings under Cronic. Kelly has not established that the

evidence as a whole leads unerringly and unmistakably to a conclusion opposite that

reached by the post-conviction court. The post-conviction court properly denied Kelly’s

petition.

                                          Conclusion

       Kelly has not established that the post-conviction court erroneously denied his

petition for post-conviction relief. We affirm.

       Affirmed.

VAIDIK, J., and MATHIAS, J., concur.




3
   Although Kelly initially frames this claim as a claim of ineffective assistance of counsel under
Strickland, the substance of the claim appears to be based on Cronic, and we review it as such.
                                                13
