MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                             Sep 17 2018, 9:16 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
William D. Polansky                                      Matthew B. MacKenzie
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Calvin McKeller,                                         September 17, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-570
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Respondent.                                     Judge
                                                         The Honorable Stanley E. Kroh,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G03-1603-PC-11167



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-570 | September 17, 2018              Page 1 of 12
                                             Case Summary
[1]   Calvin McKeller (“McKeller”) appeals the denial of his petition for post-

      conviction relief, which challenged his conviction for Robbery, as a Class B

      felony,1 and his adjudication as a habitual offender.2 We affirm.



                                                    Issues
[2]   McKeller presents two issues for review:


                 I.           Whether he was denied the effective assistance of trial
                              counsel; and


                 II.          Whether his admission that he is a habitual offender was
                              made voluntarily, knowingly, and intelligently.


                                   Facts and Procedural History
[3]   The facts underlying McKeller’s conviction were set forth by a panel of this

      court on direct appeal:


                 On July 4, 2011, McKeller called Brenai Baxter (“Baxter”) and
                 invited her to a barbeque. Baxter had previously met McKeller
                 and his friend, Kevin Perry (“Perry”), at another barbeque about
                 a week prior. Baxter decided to go to the barbeque and agreed to
                 give McKeller a ride in her car. Baxter and her five-year-old son
                 picked McKeller up. McKeller gave Baxter directions to a house,



      1
          Ind. Code § 35-42-5-1.
      2
          I.C. § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-570 | September 17, 2018   Page 2 of 12
        but not an address. McKeller noticed some sandals in the car
        and asked Baxter if he could purchase them. Initially Baxter
        refused, but she eventually agreed. McKeller told Baxter to park
        in an alley. Baxter did not see anyone else and asked McKeller
        about others attending the barbeque. McKeller told her that the
        other attendees parked in front of the house. McKeller exited the
        car to get the money for the sandals. When McKeller returned,
        Perry was with him. Perry asked Baxter if he could look at the
        sandals. Baxter turned around to grab the sandals. When she
        turned back toward Perry, he was pointing a gun at her, and
        McKeller was pointing a gun at her son. Perry demanded money
        from Baxter. She refused, and Perry reached into Baxter’s bra
        and took her money. Perry and McKeller ran away, and Baxter
        called the police.


        On July 7, 2011, the State charged McKeller with robbery and
        unlawful possession of a firearm by a serious violent felon, both
        Class B felonies. McKeller was charged jointly with Perry for the
        robbery. The State also charged McKeller with pointing a
        firearm as a Class D felony and carrying a handgun without a
        license as a Class A misdemeanor. A jury trial was held on July
        30, 2012. After the presentation of evidence, McKeller tendered
        an instruction for Class C felony robbery as a lesser-included
        offense of the Class B felony robbery. The State objected, and
        the trial court refused to give McKeller’s tendered instruction.
        The trial court did instruct the jury on the theory of accomplice
        liability. The jury convicted McKeller of robbery, but acquitted
        him of the other charges.


McKeller v. State, No. 49A02-1209-CR-714, slip op. at 2-3 (Ind. Ct. App. June

28, 2013), trans. denied. McKeller appealed, raising the sole issue of whether the

trial court erred in refusing to give McKeller’s tendered instruction on the

lesser-included offense of Class C felony robbery. His conviction was affirmed.

See id. at 2.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-570 | September 17, 2018   Page 3 of 12
[4]   On February 14, 2014, McKeller filed a pro-se petition for post-conviction

      relief. That petition was withdrawn and, with the assistance of counsel,

      McKeller filed an amended petition on October 14, 2016. On December 20,

      2016, the post-conviction court conducted an evidentiary hearing, at which

      McKeller’s trial counsel testified. On March 14, 2018, the post-conviction court

      entered its findings of fact and conclusions of law and denied McKeller post-

      conviction relief. McKeller now appeals.



                                 Discussion and Decision
                         Post-Conviction Standard of Review
[5]   The petitioner in a post-conviction proceeding bears the burden of establishing

      the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

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

      from the denial of post-conviction relief, the petitioner stands in the position of

      one appealing from a negative judgment. Id. On review, we will not reverse

      the judgment of the post-conviction court unless the evidence as a whole

      unerringly and unmistakably leads to a conclusion opposite that reached by the

      post-conviction court. Id. A post-conviction court’s findings and judgment will

      be reversed only upon a showing of clear error, that which leaves us with a

      definite and firm conviction that a mistake has been made. Id. In this review,

      findings of fact are accepted unless they are clearly erroneous, and no deference

      is accorded to conclusions of law. Id. The post-conviction court is the sole

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

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-570 | September 17, 2018   Page 4 of 12
                               Effectiveness of Trial Counsel
[6]   Effectiveness of counsel is a mixed question of law and fact. Strickland v.

      Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims

      of ineffective assistance under the two-part test announced in Strickland. Id. To

      prevail on an ineffective assistance of counsel claim, a defendant must

      demonstrate both deficient performance and resulting prejudice. Dobbins v.

      State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687).

      Deficient performance is that which falls below an objective standard of

      reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d

      1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that

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

      the result of the proceeding would have been different. A reasonable

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

      Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.

      1996). The two prongs of the Strickland test are separate and independent

      inquiries. Strickland, 466 U.S. at 697. Thus, “[i]f it is easier to dispose of an

      ineffectiveness claim on the ground of lack of sufficient prejudice … that course

      should be followed.” Id.


[7]   McKeller contends he was denied effective assistance of trial counsel because

      counsel failed to object to an accomplice liability instruction that included the

      language: “To be guilty, he does not have to personally participate in the crime

      nor does he have to be present when the crime is committed.” (Exhibits, pg.

      18.) McKeller’s trial counsel testified at the post-conviction hearing that she

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-570 | September 17, 2018   Page 5 of 12
      had no strategic reason for omitting an objection and she had “simply

      overlooked” the objectionable language. (P-C.R. Tr. at 13.)


[8]   The State responds that the instruction, taken as a whole, adequately informed

      the jury as to the requisite elements for finding McKeller guilty as an

      accomplice. The challenged instruction, Final Instruction 22(A), provides:


              A person who, knowingly or intentionally aids another person in
              committing or induces another person to commit or causes
              another person to commit Robbery, a Class B felony is guilty of
              Robbery, a Class B felony even though he does not personally
              participate in each act constituting the Robbery, a Class B felony.


              A person may be convicted of Robbery, a Class B felony even if
              the other person has not been prosecuted for the Robbery, a Class
              B felony; nor – or [sic] has not been convicted of the Robbery, a
              Class B felony; [or] has been acquitted of the Robbery, a Class B
              felony.


              In order to commit Robbery, a Class B felony, by aiding,
              inducing, or causing another to commit Robbery, a Class B
              felony, a person must have knowledge that he is aiding, inducing,
              or causing another to commit Robbery, a Class B felony. To be
              guilty, he does not have to personally participate in the crime nor does he
              have to be present when the crime is committed. Merely being present
              at the scene of the crime is not sufficient to prove that he aided,
              induced, or caused the crime. Failure to oppose the commission
              of the crime is also insufficient to prove aiding, inducing, or
              causing another to commit the crime. But presence at the scene
              of the crime or failure to oppose the crime’s commission along
              with the defendant’s companionship with the person committing
              the offense and conduct before and after the offense are factors
              which may be considered in determining whether there was
              aiding, inducing, [or] causing another to commit the crime.
      Court of Appeals of Indiana | Memorandum Decision 18A-PC-570 | September 17, 2018   Page 6 of 12
              Before you may convict the Defendant, the State must have
              proved each of the following elements beyond a reasonable
              doubt:


              1. The Defendant.


              2. Knowingly or intentionally.


              3. Aided, or induced, or caused, Kevin Perry to commit the
                 offense of Robbery, a Class B felony, defined as


                  A. Knowingly.


                  B. Took property, that is money and/or a credit card, and/or
                     sandals from the person or presence of Brenai Baxter.


                  C. By putting Brenai Baxter in fear or by using or threatening
                     the use of force on Brenai Baxter.


                  D. And when committing these elements he was armed with
                     a deadly weapon, that is: handgun or guns.


              If the State failed to prove each of these elements beyond a
              reasonable doubt, you should find the defendant not guilty of
              Robbery, a Class B felony, charged in Count I.


      (Exhibits, pgs. 17-19) (emphasis added).


[9]   During deliberations, the jury sent out a request for clarification of Final

      Instruction 22(A), specifically identifying “Part D,” the language referencing a

      deadly weapon. (Trial Tr. at 212.) The jury question was read aloud by the


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-570 | September 17, 2018   Page 7 of 12
       trial court, as follows: “Does this mean [McKeller] has to have a gun or just

       that a gun was present and used in the commission at a robbery for Part D to

       apply?” Id. By agreement of the parties, the trial court responded with a

       direction to the jury to “Please reread the instructions.” Id.


[10]   When an ineffective assistance of counsel claim is premised upon the trial

       counsel’s failure to make an objection, the petitioner must show that a proper

       objection would have been sustained by the trial court. Lambert v. State, 743

       N.E.2d 719, 732 (Ind. 2001). Instruction 22(A), although cumbersome,

       informed the jury of the requisite statutory elements to support a conviction for

       Robbery, as a Class B felony, and the jury was properly informed that an

       accomplice need not have participated in each element.3 At the same time,

       however, the jury was informed that McKeller need not have participated in the

       properly-defined crime. “[T]he Due Process Clause protects the accused

       against conviction except upon proof beyond a reasonable doubt of every fact

       necessary to constitute the crime with which he is charged.” In re Winship, 397

       U.S. 358, 364 (1970). We thus conclude that, had trial counsel objected to the




       3
           See also I.C. § 35-41-2-4, providing:

       A person who knowingly or intentionally aids, induces, or causes another person to commit an offense
       commits that offense, even if the other person:
                  (1) has not been prosecuted for the offense;
                  (2) has not been convicted of the offense; or
                  (3) has been acquitted of the offense.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-570 | September 17, 2018             Page 8 of 12
       jury being instructed that McKeller need not have participated in the charged

       crime, the objection would have been sustained.


[11]   Candidly, McKeller has directed our attention to a case in which a defendant

       directly appealing his convictions did not obtain a reversal despite the jury

       having been instructed that an accomplice “does not have to personally

       participate in the crime nor does he have to be present when the crime is

       committed.” Hawn v. State, 565 N.E.2d 362, 366 (Ind. Ct. App. 1991). Hawn

       was convicted of fourteen counts of dealing in cocaine, three counts of

       conspiracy to deal cocaine, one count of corrupt business influence, and two

       counts of maintaining a common nuisance. There was evidence of record that

       Hawn had sold cocaine in Warren County, Indiana on at least nine occasions

       in 1987 and 1988 and that he had driven to Florida to purchase cocaine on two

       occasions in 1988. He was found complicit in money collection efforts made by

       his wife and another individual. See id. at 364. In that context, a panel of this

       Court held: “Although the State’s instruction does not qualify the participation

       language, any error was harmless due to the strong evidence of appellant’s

       guilt.” Id. at 366.


[12]   According to the State, even if the performance of McKeller’s trial counsel was

       less than optimal, McKeller was not prejudiced under the Strickland standard,

       that is, a “reasonable probability” of a different outcome, but for counsel’s

       unprofessional error. 466 U.S. at 694. At McKeller’s post-conviction hearing,

       the trial record was admitted into evidence. The State asserts “the evidence

       presented by the State against Petitioner was strong, minimizing any theoretical

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-570 | September 17, 2018   Page 9 of 12
       prejudice,” and observes that Baxter identified McKeller as a participant in her

       robbery.4 Appellee’s Brief at 15. Cell phone records placed McKeller in

       Baxter’s vicinity during the relevant time frame and he admitted during a

       recorded telephone conversation that he owned a handgun with a beam. Baxter

       had described the gun held on her as having a beam.


[13]   The strength of the evidence against McKeller is such that the post-conviction

       court could reasonably have found a lack of prejudice to McKeller from the use

       of instruction with some conflicting language. Under Strickland, a “reasonable

       probability” has been defined as “a probability sufficient to undermine

       confidence in the outcome.” 466 U.S. at 694. We cannot say that the evidence

       before the post-conviction court, as a whole, unerringly and unmistakably leads

       to a conclusion opposite that reached by the post-conviction court.


                                       Habitual Offender Plea
[14]   McKeller contends that his admission that he is a habitual offender was not

       made voluntarily, knowingly, and intelligently due to the lack of express

       advisements of waiver of certain rights at the habitual offender phase. A

       habitual offender adjudication is not equivalent to conviction of a crime. See

       Harris v. State, 964 N.E.2d 920, 927 (Ind. Ct. App. 2012). However, if a

       defendant expressly admits to the habitual offender enhancement, such an




       4
        Baxter’s young son also testified that a second man was present during the robbery; he was not asked to
       make an in-court identification.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-570 | September 17, 2018              Page 10 of 12
       admission is considered a guilty plea. See Vanzandt v. State, 730 N.E.2d 721,

       726 (Ind. Ct. App. 2000). A defendant may challenge a guilty plea only in a

       petition for post-conviction relief. Saylor v. State, 55 N.E.3d 354, 365 n. 10 (Ind.

       Ct. App. 2016), trans. denied.


[15]   After his conviction by a jury, McKeller admitted he is a habitual offender and

       expressly waived his right to have that determination made by a jury.

       However, during the habitual offender phase, the judge did not expressly advise

       McKeller that he would be giving up his right to confront and cross-examine

       witnesses and the privilege against self-incrimination. McKeller asserts that his

       plea was involuntary because he was given less than all the advisements

       required by Boykin v. Alabama, 395 U.S. 238, 242 (1969).


[16]   In Boykin, the United States Supreme Court held that it was reversible error for

       the trial court to accept a guilty plea without an affirmative showing that it was

       intelligent and voluntary. “More particularly, Boykin requires that the record

       must show, or there must be an allegation and evidence which show, that the

       defendant was informed of, and waived, three specific federal constitutional

       rights: the privilege against compulsory self-incrimination, right to trial by jury,

       and the right to confront one’s accusers.” Hall v. State, 849 N.E.2d 466, 469

       (Ind. 2006). Boykin does not require that the record of the guilty plea hearing

       evinces a formal advisement or formal waiver; rather, Boykin only requires that

       a conviction be vacated if the defendant did not know or was not advised at the

       time of his plea that he was waiving his Boykin rights. Winkleman v. State, 22

       N.E.3d 844, 851 (Ind. Ct. App. 2014). In Winkleman, the Court observed that

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-570 | September 17, 2018   Page 11 of 12
       the defendant, who had entered his plea after the guilt phase of a jury trial, had

       admitted to the habitual offender enhancement ‘“in the midst of a trial, where

       the Boykin rights are on display for all to see.”’ Id. (quoting Hopkins v. State, 889

       N.E.2d 314, 317 (Ind. 2008)). Likewise, McKeller, who had just received

       advisements as part of his jury trial before proceeding to the habitual offender

       phase, did not establish that he was unaware of his Boykin rights. He has not

       demonstrated that his plea was involuntary.



                                               Conclusion
[17]   McKeller was not denied the effective assistance of trial counsel and he has not

       shown that he entered an involuntary plea. Accordingly, the post-conviction

       court properly denied McKeller post-conviction relief.


[18]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-570 | September 17, 2018   Page 12 of 12
