MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                                         Aug 26 2019, 7:35 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                            CLERK
                                                                          Indiana Supreme Court
purpose of establishing the defense of res judicata,                         Court of Appeals
collateral estoppel, or the law of the case.                                   and Tax Court




APPELLANT PRO SE                                       ATTORNEYS FOR APPELLEE
Darren Englert                                         Curtis T. Hill, Jr.
Carlisle, Indiana                                      Attorney General of Indiana
                                                       Ian McLean
                                                       Supervising Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE

    COURT OF APPEALS OF INDIANA

Darren Englert,                                            August 26, 2019
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           18A-PC-3091
                                                           Appeal from the Tippecanoe
        v.                                                 Superior Court
                                                           The Hon. Randy J. Williams,
                                                           Judge
State of Indiana,
                                                           Trial Court Cause No.
Appellee-Respondent.                                       79D01-1411-PC-7




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-3091 | August 26, 2019                   Page 1 of 17
                                          Case Summary
[1]   In June of 2011, Jeremy Gibson and Carolann Clear invited Darren Englert and

      Antonio Williams to move in with them. Within a week of moving in, Englert

      and Williams attacked, beat, hog-tied, and killed Gibson, one using a hatchet

      and the other using a pick axe. The State charged Englert with, inter alia,

      murder. Englert pled guilty to murder and was later convicted, after a jury trial,

      of several other crimes. The trial court sentenced Englert to an aggregate term

      of eighty years of incarceration. Englert’s convictions and sentence were

      affirmed on direct appeal.

[2]   In April of 2018, Englert filed an amended petition for post-conviction relief

      (“PCR”), alleging that his guilty plea to murder had not been knowing,

      voluntary, or intelligent and that he had received ineffective assistance of trial

      counsel. Following an evidentiary hearing, the post-conviction court denied

      Englert’s PCR petition in full. As restated, Englert contends that the post-

      conviction court erred in failing to find that his guilty plea to murder had not

      been knowing, voluntary, or intelligent and that he had received ineffective

      assistance of trial counsel. Because we disagree, we affirm.


                            Facts and Procedural History
[3]   We related the underlying facts of this case in our disposition of Englert’s direct

      appeal:

              Gibson and Carolann Clear began a romantic relationship in May
              2011. Shortly thereafter, Clear and her mother, Joanne, moved
              into Gibson’s one bedroom apartment in Lafayette. Gibson, the
              father of two young children that did not live with him, was

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-3091 | August 26, 2019   Page 2 of 17
        employed as a dishwasher at a local restaurant. Neither Clear nor
        her mother was employed. In June 2011, Gibson and Clear met
        Englert and Antonio Williams at a party. Both men were
        unemployed. Shortly thereafter, Gibson invited Englert and
        Williams to move into his apartment. The two men accepted
        Gibson’s invitation and agreed to help Gibson pay for food and
        rent. Problems began immediately. Although Clear apparently
        still considered Gibson to be her boyfriend, she and Englert
        became involved in a sexual relationship, and Gibson asked
        Joanne to move out, which angered Clear.
        At approximately 2:00 a.m. on July 6, 2011, less than a week after
        they moved into Gibson’s apartment, Englert and Williams
        attacked Gibson in the kitchen when he returned home from work.
        Williams was apparently angry because he believed Gibson had
        “disrespected” Clear. Tr. p. 463. The two men hit Gibson with
        their fists and kicked him. Gibson, who was much smaller than
        his attackers, was unable to defend himself. After beating Gibson,
        Englert and Williams removed Gibson’s clothing, hog-tied his
        wrists and ankles with a dog collar and belt, threw him in a cold
        shower, and left him there for ten to fifteen minutes to rinse off his
        blood.
        While Gibson was in the shower, Englert, Williams, and Clear sat
        in the living room and discussed what to do with Gibson. Clear
        suggested killing him. Englert and Williams dragged Gibson out
        of the shower, untied him, and told him to get dressed. Gibson
        was in no condition to resist at that point, and Williams
        announced that they were all going for a ride in Joanne’s roach-
        infested compact-sized car. Williams got into the driver’s seat,
        and Gibson was placed in the front seat with a belt around his
        neck. Englert sat directly behind Gibson and restrained him with
        the belt. Clear sat next to Englert and taunted Gibson while
        performing oral sex on Englert.
        Williams drove to an acquaintance’s house and took a pick axe, a
        hatchet, a shovel, and a gas can out of the acquaintance’s garage.
        Englert, Williams, and Clear discussed digging a six foot by six
        foot hole, beating Gibson, and burying him. Williams then drove

Court of Appeals of Indiana | Memorandum Decision 18A-PC-3091 | August 26, 2019   Page 3 of 17
        out to County Road 500 North in Tippecanoe County. During the
        drive, Gibson pleaded for his life. He told Englert and Williams
        that he didn’t want to die because he had babies, and that they
        could have Clear and his SNAP food stamp benefits card.
        At some point, Williams stopped the car on the county road,
        removed Gibson from the vehicle, and placed a plastic bag over
        his head. Clear removed the tools from the car, and Englert dug a
        shallow hole next to a corn field. Williams shoved Gibson into
        the hole, and Englert handed Williams the pick axe. Both
        Williams and Englert beat Gibson with the tools until he was dead
        and then removed his bloody clothing. They left the belt around
        Gibson’s neck. Because the hole Englert dug wasn’t deep enough
        to bury Gibson, Englert and Williams put Gibson in a fetal
        position and covered his body with dirt and corn stalks from a
        nearby cornfield. Englert and Williams discussed burning
        Gibson’s body, but Clear told them that the nearby trees would
        catch fire.
        Immediately after leaving the scene, Englert, Williams, and Clear
        drove to a bridge and threw the shovel, pick axe, and hatchet into
        the Wabash River. They threw Gibson’s shoes into a dumpster,
        and returned to Gibson’s apartment to clean up the bloody
        kitchen. They hid the bloody clothes that Gibson was wearing
        when he died under the stove. About 7:00 a.m., Englert and Clear
        used Gibson’s SNAP card to purchase soda and snacks at the
        Village Pantry. Clear telephoned the restaurant that employed
        Gibson and asked for his paycheck.
        Later that day, Englert and Williams drove Joanne’s car to an Ace
        Hardware store where Williams stole a large bag of mulch and a
        bottle of hydrochloric acid. The two men returned to Gibson’s
        gravesite and poured acid on Gibson to destroy evidence. They
        also covered Gibson’s body with the mulch. The men left the
        mulch bag and acid bottle in Joanne’s car. When they returned to
        Gibson’s apartment, Joanne cleaned out her car and threw the
        mulch bag and acid bottle in the front yard.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-3091 | August 26, 2019   Page 4 of 17
        That night, Clear told a friend that Englert and Williams had
        killed Gibson. The friend called the Lafayette Police Department
        and reported that Gibson was missing. Lafayette Police
        Department Officer Shana Wainscort responded to the call at
        approximately 1:00 a.m. on July 7 and spoke with Clear’s friend,
        who took the officer to Gibson’s apartment. Officer Wainscort
        observed the mulch bag and acid bottle in the front yard. She and
        Officer Jacob Daubenmeir knocked on the front door, and Joanne
        invited them in to look around the apartment. The officers noticed
        Gibson’s wallet on the living room floor and asked Joanne to
        contact Clear. Shortly thereafter, the officers noticed Clear,
        Williams, and Englert walking down the middle of the street
        towards the apartment. Although initially cooperative, they all
        became agitated and aggressive when questioned about Gibson.
        They eventually refused to answer additional questions and
        returned to Gibson’s apartment. As the officers continued their
        investigation in the front yard, Englert and Williams came out of
        the apartment and taunted the officers about failing to arrest them.
        Later that morning, Officer Daubenmeir arrested Englert for
        minor consumption of alcohol. Marijuana was found in Englert’s
        wallet. When questioned at the police station, Englert gave
        several false statements as to where Gibson might be. When asked
        about the cuts and other injuries to his hands, arm, and neck,
        Englert became agitated and said he injured himself while peeling
        potatoes.
        Officers at Gibson’s apartment found Gibson’s blood in the
        shower and on the kitchen floor. The dog collar used to hog-tie
        Gibson was found on the bathroom floor between the toilet and
        the shower. Gibson’s blood was also found on the rubber seal on
        the trunk of Joanne’s car. Officers were eventually able to locate
        Gibson’s burial site with Williams’ help. The officers found a
        blood-stained plastic bag at the side of Gibson’s grave. As the
        officers slowly excavated the burial site by removing the corn
        stalks, mulch, and dirt, their eyes began to burn from the
        hydrochloric acid. Williams also directed the officers to the




Court of Appeals of Indiana | Memorandum Decision 18A-PC-3091 | August 26, 2019   Page 5 of 17
              Wabash River where they recovered the pick axe, shovel, and
              hatchet.
              [….]
              The evidence at trial revealed that Gibson sustained injuries
              consistent with both a hatchet and the pick side of a pick axe. His
              body also showed a pour pattern from the hydrochloric acid.
              Specifically, the injuries consistent with the hatchet were a five-
              inch laceration to the left side of his neck that severed his carotid
              artery and jugular vein, and a five-inch laceration to the right side
              of his head and neck that cut through his ear, fractured his cervical
              vertebra, and severed his spinal cord. The wound to the spinal
              cord was fatal. The injuries consistent with the pick side of the
              pick axe were circular wounds that fractured his jaw, knocked out
              his teeth, entered his brain, and entered the belt that had been
              cinched around his neck and pushed it into his neck. Gibson also
              sustained a laceration to his upper lip and bruises on the top of his
              head, his left ankle, and right thigh.
      Englert v. State, No. 79A04-1302-CR-88, slip. op. at *1-3 (October 17, 2013),

      trans. denied.

[4]   On July 13, 2011, attorneys Earl McCoy and Chad Montgomery appeared on

      behalf of Englert, with McCoy as lead counsel. On July 19, 2011, the State

      charged Englert with murder and Class A felony conspiracy to commit murder.

      On August 26, 2011, the State added charges of Class B felony conspiracy to

      commit criminal confinement, Class B felony criminal confinement, Class C

      felony conspiracy to commit battery, Class C felony battery, Class D felony

      conspiracy to commit fraud, two counts of Class D felony fraud, and Class A

      misdemeanor possession of marijuana. Englert’s defense team eventually

      learned through numerous conversations with prosecuting attorneys that the

      State was considering filing a request for the death penalty or life without parole


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-3091 | August 26, 2019   Page 6 of 17
      (“LWOP”). McCoy recalled that he and Montgomery also came to believe that

      is was likely that Englert would be found guilty of Gibson’s murder.

[5]   Although Englert had originally been uninterested in the possibility of pleading

      guilty, his opinion changed as the case progressed. McCoy and Montgomery

      discussed possible options with Englert, including an open plea to the murder

      charge in which Englert would admit to participation in the murder of Gibson

      as an accomplice but deny a direct role in inflicting Gibson’s death. McCoy’s

      plan was to remove the possibility of the death penalty or LWOP from the case

      by a preemptive plea to the murder charge. Moreover, while McCoy had

      received no promises or assurances from the State about the result of an open

      plea to murder, McCoy hoped that the State would be satisfied with a murder

      conviction and dismiss the remaining charges. If the State reacted in that way,

      McCoy thought, Englert’s guilty plea would count as a significant mitigating

      fact at sentencing.

[6]   Englert discussed this idea with his counsel on multiple occasions. Englert

      eventually decided to accept McCoy’s idea and was “absolutely on board with

      that plan.” PCR Tr. Vol. II p. 13. McCoy’s plan was to enter the plea suddenly

      at a routine hearing in order to give the State no time to file a request for the

      death penalty or LWOP. At a pretrial hearing on March 14, 2012, McCoy

      again confirmed with Englert that he wanted to plead guilty to the murder

      charge. McCoy approached the trial court and informed it that Englert wanted

      to plead guilty to the murder charge. When the prosecutor objected on the

      basis that the State was still considering requesting the death penalty or LWOP,



      Court of Appeals of Indiana | Memorandum Decision 18A-PC-3091 | August 26, 2019   Page 7 of 17
      the trial court reset the hearing for two days later. As it happened, the State did

      not request the death penalty or LWOP in the next two days.

[7]   On March 16, 2012, during Englert’s plea hearing, he and the trial court had the

      following exchange:

              BY THE COURT:         And do I understand that Mr. McCoy
              and Mr. Montgomery have been representing you throughout this
              matter?
              BY MR. ENGLERT:                   Yes, sir.
              BY THE COURT:                     And you are satisfied with their
              services?
              BY MR. ENGLERT:                   Yes, sir.
      Trial Tr. p. 42. Englert also told the trial court that no one had made any

      promises or threats to induce his guilty plea. Englert pled guilty to the murder

      charge and explained that he had knowingly helped Williams murder Gibson.

      The trial court accepted Englert’s plea and entered a judgment of conviction for

      murder. Englert waived sentencing within thirty days, and the sentencing

      hearing was later continued until the remaining charges had been tried.

[8]   On August 3, 2012, McCoy and Montgomery moved to withdraw, which

      motion the trial court heard on August 17, 2012. McCoy told the trial court

      that Englert had accused McCoy of “lying to him, misleading him” and that

      “we may be headed to a motion to withdraw a plea” in which case McCoy

      would become a witness and could not represent Englert. Appellee’s PCR App.

      Vol. II p. 6. Englert told the trial court, “I just feel like I am being not truthfully

      represented” and “I feel like they wouldn’t help me as much as they can.”

      Appellee’s PCR App. Vol. II p. 6. The trial court denied counsel’s motions on

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-3091 | August 26, 2019   Page 8 of 17
       August 23, 2012, noting that neither Englert nor his attorneys had provided

       sufficient grounds for changing Englert’s representation, particularly because

       his counsel had represented Englert for thirteen months and trial on the

       remaining charges was scheduled to begin on November 18, 2012.

[9]    On September 10, 2012, Englert sent the trial court a request to withdraw his

       guilty plea, alleging he was not of sound mind when he pled guilty. On

       September 27, 2012, the trial court struck the motion. On October 15, 2012,

       Englert moved for change of counsel on the basis that there had been a

       breakdown in the attorney/client relationship. The trial court heard this

       motion on October 19, 2012, and denied it.

[10]   On October 27, 2012, Englert filed a complaint with the Indiana Supreme

       Court Disciplinary Commission about his attorneys, accusing them of lying to

       him about various things. On November 5, 2012, Englert wrote the trial court

       to say that he had filed the disciplinary complaint. Englert wrote that “I would

       also like to let you know that I know my lawyers are working for me and I

       appreciate the work they have done and are doing on my behalf,” but that his

       counsel were “not truthful with me and have taken advantage of me.”

       Appellee’s PCR App. Vol. II p. 12. Englert complained that “it’s ridiculous and

       unprofessional at how my lawyers are acting towards me.” Appellee’s PCR

       App. Vol. II p. 13. He concluded, “As you already know I have gone to some

       inmates for information and now I know it was not the right thing to do.”

       Appellee’s PCR App. Vol. II p. 13.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3091 | August 26, 2019   Page 9 of 17
[11]   Englert’s letter was filed on November 8, 2012, and discussed at a final pretrial

       hearing on November 9, 2012. McCoy renewed his motion to withdraw,

       saying that he believed Englert’s allegations of lying or misleading conduct “are

       tied to him, to the best of my knowledge, entering a plea of guilty to the charge

       of murder.” Trial Tr. p. 112. The trial court observed that Englert’s letter

       sounded like “cold feet.” Trial Tr. p. 113. The trial court discussed Englert’s

       dissatisfaction with his counsel and guilty plea, as follows:

               Your attorneys have come before this Court on more than one
               occasion, they’ve requested funding, they’ve been running
               depositions of all the witnesses that they---that there could be.
               This is buyer’s remorse Mr. Englert. Based upon the information
               provided to me. We’re not going back in on the guilty plea. I’ve
               got a record. I’ve got a transcript of that record. And that’s a
               pretty good record in terms of what you knew what you were and
               were not doing.
       Trial Tr. p. 119.

[12]   Englert testified under oath as follows:

               Q:       First of all, State to the Court, in what manner have you,
                        well, first of all State to the Court the allegations which you
                        have raised in your comp---your disciplinary complaint
                        against your attorneys?
               A:       The allegations I raised is that my attorneys have not been
                        truthful with me.
               Q:       Is that all---is that what you said?
               A:       Yeah.
               Q:       Tell me how?
               A:       Uh, they’ve lied to me about evidence.
               Q:       Tell me how?


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3091 | August 26, 2019   Page 10 of 17
               A:       Well, they came to me and told me that, uh, they have this
                        certain evidence against me and I asked them, uh, I never
                        seen it, and then they say well maybe you’re reading it
                        wrong. You don’t know how to read it. So I asked them to
                        bring it to me to read it to me and then they said something
                        like, oh maybe, I think we just got it two weeks. They just
                        kept saying different things.
       Trial Tr. p. 121–22. The trial court denied Englert’s request, saying he had

       offered only “general statements without specifics” that could not be addressed

       by his counsel or dealt with by the trial court. Trial Tr. p. 123. The trial court

       also noted that Englert had expressed satisfaction with his counsel at the guilty-

       plea hearing.

[13]   A jury heard the remaining charges against Englert on November 13–16, 2012.

       The jury found Englert guilty of Class A felony conspiracy to commit murder,

       Class B felony conspiracy to commit criminal confinement, Class D felony

       criminal confinement, Class C felony conspiracy to commit battery, Class A

       misdemeanor battery, and Class A misdemeanor possession of marijuana. On

       January 29, 2013, the trial court sentenced Englert. When the trial court asked

       Englert if he was satisfied with the assistance his trial counsel had given him, he

       replied, “Yes sir I am.” Trial Tr. p. 828. The trial court sentenced Englert to an

       aggregate sentence of eighty years of incarceration.

[14]   On direct appeal, we affirmed Englert’s convictions and sentence in an

       unpublished decision. Englert, No. 79A04-1302-CR-88 at *8. On April 6, 2018,

       Englert filed an amended PCR petition. Following an evidentiary hearing

       conducted on August 13, 2018, the post-conviction court denied Englert’s PCR

       petition on November 30, 2018.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3091 | August 26, 2019   Page 11 of 17
                                  Discussion and Decision
[15]   Our standard for reviewing the denial of a PCR petition is well-settled:

               In reviewing the judgment of a post-conviction court, appellate
               courts consider only the evidence and reasonable inferences
               supporting its judgment. The post-conviction court is the sole
               judge of the evidence and the credibility of the witnesses. To
               prevail on appeal from denial of post-conviction relief, the
               petitioner must show that the evidence as a whole leads unerringly
               and unmistakably to a conclusion opposite to that reached by the
               post-conviction court. […] Only where the evidence is without
               conflict and leads to but one conclusion, and the post-conviction
               court has reached the opposite conclusion, will its findings or
               conclusions be disturbed as being contrary to law.
       Hall v. State, 849 N.E.2d 466, 468–69 (Ind. 2006) (internal citations and

       quotations omitted).

                        I. Whether Englert’s Guilty Plea Was
                         Knowing, Intelligent, and Voluntary
[16]   Englert seems to argue that his guilty plea to murder was rendered involuntary

       by the alleged threat that the State would seek the death penalty or LWOP if he

       did not plead guilty.

               A plea of guilty is an admission or confession of guilt made in
               court before a judge. It is also a waiver of specific constitutional
               rights. Fundamental due process requires that a criminal charge
               be proven beyond a reasonable doubt, In Re Winship, (1970) 397
               U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368, and a defendant’s
               waiver of this right must be knowing, intelligent and voluntary,
               and appear affirmatively on the record of the guilty plea
               proceedings. Boykin v. Alabama, (1969) 395 U.S. 238, 89 S. Ct.
               1709, 23 L. Ed. 2d 274. In order to uphold a guilty plea as
               knowing and voluntary the record must provide a sufficient basis


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3091 | August 26, 2019   Page 12 of 17
               for the conclusion that the defendant was meaningfully informed
               of the rights and law detailed in Ind. Code § 35-4.1-1-3 (Burns
               1979); Turman v. State, (1979) 271 Ind. 332, 392 N.E.2d 483, at
               487.
       Anderson v. State, 465 N.E.2d 1101, 1102 (Ind. 1984). Moreover,

               [a]t the moment the plea is entered, the State must possess the
               power to carry out any threat which was a factor in obtaining the
               plea agreement which was accepted. The lack of that real power is
               what makes the threat illusory and causes the representation to
               take on the characteristics of a trick.
       Daniels v. State, 531 N.E.2d 1173, 1174 (Ind. 1988).

[17]   The record, however, does not indicate that anybody ever threatened Englert

       that the State would definitely seek the death penalty or LWOP unless he pled

       guilty or that his counsel believed that such a threat had been made. Moreover,

       even if such a threat had been made, it would not have been idle. It seems clear

       that Englert was, in fact, eligible for the death penalty or LWOP on at least

       three grounds. First, Englert had also been charged with Class C felony battery

       and Class B felony criminal confinement of Gibson, and convictions for either

       or both charges would have qualified Englert for the death penalty or LWOP.

       Ind. Code § 35-50-2-9(b)(13)(A). Second, there was ample evidence that

       Englert and his accomplices tortured Gibson before killing him. Ind. Code §

       35-50-2-9(b)(11). “[T]orture is the gratuitous infliction of substantial pain or

       suffering in excess of that associated with the commission of the charged

       crime.” Gauvin v. State, 883 N.E.2d 99, 103 (Ind. 2008) (citation omitted).

       There was evidence that Englert and his accomplices beat and then hog-tied

       Gibson with a belt and dog collar before placing him in a running shower for


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3091 | August 26, 2019   Page 13 of 17
       ten to fifteen minutes. After removing Gibson from the shower, Englert and his

       accomplices again used the belt as a leash around Gibson’s neck while

       transporting him to the murder site. Englert has failed to establish that his

       guilty plea was rendered involuntary by an illusory threat to seek the death

       penalty or LWOP.

                     II. Ineffective Assistance of Trial Counsel
[18]   Englert contends that he received ineffective assistance of trial counsel. We

       review claims of ineffective assistance of counsel based upon the principles

       enunciated in Strickland v. Washington, 466 U.S. 668 (1984):

               Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
               L. Ed. 2d 674 (1984), a claim of ineffective assistance of counsel
               requires a showing that: (1) counsel’s performance was deficient
               by falling below an objective standard of reasonableness based on
               prevailing professional norms; and (2) counsel’s performance
               prejudiced the defendant so much that “there is a reasonable
               probability that, but for counsel’s unprofessional errors, the result
               of the proceeding would have been different.” Id. at 687, 694, 104
               S. Ct. 2052; Lowery v. State, 640 N.E.2d 1031, 1041 (Ind. 1994).
               […] Failure to satisfy either prong will cause the claim to fail.
               Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999).
       French v. State, 778 N.E.2d 816, 824 (Ind. 2002).

[19]   Trial counsel’s performance “is presumed effective, and a defendant must offer

       strong and convincing evidence to overcome this presumption.” Wilkes v. State,

       984 N.E.2d 1236, 1241 (Ind. 2013) (citation omitted). Englert must prove that

       his trial counsel’s representation fell below the minimum range of competence

       for attorneys in criminal cases. Strickland, 466 U.S. at 688–89. Englert cannot

       prevail by showing only “isolated poor strategy, bad tactics, a mistake,

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3091 | August 26, 2019   Page 14 of 17
       carelessness or inexperience.” Lambert v. State, 743 N.E.2d 719, 741 (Ind.

       2001), reh’g. denied. Rather, Englert must show that his counsel’s entire defense

       was inadequate. Id. Further, “‘[j]udicial scrutiny of counsel’s performance

       must be highly deferential.’” Hampton v. State, 961 N.E.2d 480, 491 (Ind. 2012)

       (quoting Strickland, 466 U.S. at 689). Englert’s counsel’s decisions are assessed

       objectively, in view of what a reasonable, minimally-competent attorney could

       have chosen to do or not do in the circumstances; this inquiry should not

       involve hindsight or evaluate his counsel’s subjective opinions or beliefs.

       Harrington v. Richter, 562 U.S. 86, 106–07 (2011).

[20]   As for prejudice, “[i]t is not enough ‘to show that the errors had some

       conceivable effect on the outcome of the proceeding.’” Id. at 104 (quoting

       Strickland, 466 U.S. at 687). Rather, Englert must show that, had his counsel

       performed competently, there is “‘a reasonable probability that […] the result of

       the proceeding would have been different.’” Id. (quoting Strickland, 466 U.S. at

       687). Failure to demonstrate both deficient performance and prejudice is fatal

       to an ineffective-assistance claim. State v. Greene, 16 N.E.3d 416, 419 (Ind.

       2014). Accordingly, if it is easier to dispose of an ineffectiveness claim on the

       ground of lack of sufficient prejudice, that course should be followed. Carter v.

       State, 929 N.E.2d 1276, 1280 (Ind. 2010). Englert’s specific claims of ineffective

       assistance are that (A) McCoy was ineffective because he coerced him into

       pleading guilty by knowingly making false statements to him and (B) both

       counsel were ineffective for failing to move to withdraw his guilty plea pursuant

       to Indiana Code section 35-35-1-4(b).



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3091 | August 26, 2019   Page 15 of 17
                                 A. Allegedly False Statements
[21]   Although Englert claims that his trial counsel made many false statements to

       him, the only one he specifically identifies on appeal is the alleged statement

       McCoy made to him and his family that the State would certainly pursue the

       death penalty or LWOP unless he pled guilty to murder. Englert, however,

       points to nothing in the record that such a statement was ever made. On the

       other hand, the record does contain substantial evidence refuting Englert’s

       claim.

[22]   For one thing, McCoy testified that no meeting between himself, Englert, and

       Englert’s parents ever occurred. Moreover, McCoy testified that while he was

       concerned that the State would request the death penalty or LWOP, he also

       testified that the State was only “considering the death penalty and [LWOP.]”

       PCR Tr. p. 21 (emphasis added). McCoy also testified that he did not coerce

       Englert into pleading guilty and “[a]bsolutely” made no false statements of

       material fact to Englert at any time. PCR Tr. p. 32. The record supports the

       post-conviction court’s finding that McCoy “did not make false statements of

       ‘material fact’ and did not coerce [Englert] into pleading guilty.” Appellant’s

       PCR App. Vol. II p. 36. Englert has failed to establish that McCoy’s

       performance was deficient for making false statements to him.

                            B. Motion to Withdraw Guilty Plea
[23]   Englert claims that his trial counsel were ineffective for failing to move to

       withdraw his guilty plea. Pursuant to Indiana Code section 35-35-1-4(b),




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3091 | August 26, 2019   Page 16 of 17
               [a]fter entry of a plea of guilty, or guilty but mentally ill at the time
               of the crime, but before imposition of sentence, the court may
               allow the defendant by motion to withdraw his plea of guilty, or
               guilty but mentally ill at the time of the crime, for any fair and just
               reason unless the state has been substantially prejudiced by
               reliance upon the defendant’s plea. [….] However, the court shall
               allow the defendant to withdraw his plea of guilty, or guilty but
               mentally ill at the time of the crime, whenever the defendant
               proves that withdrawal of the plea is necessary to correct a
               manifest injustice.
[24]   Englert’s argument is based on his already-discussed claim that his guilty plea

       was rendered involuntary by the State’s allegedly illusory threat to seek the

       death penalty or LWOP. As discussed, however, there is no indication that any

       such threat was ever made, and it would not have been illusory if it had been

       made. Englert has failed to establish that a fair and just reason to grant a

       motion to withdraw his guilty plea existed or that granting a motion to

       withdraw would have been necessary to correct a manifest injustice, fatally

       undercutting any claims of deficient performance or prejudice. Englert has

       failed to establish that he received ineffective assistance of trial counsel.

[25]   The judgment of the post-conviction court is affirmed.

       Vaidik, C.J., and Riley, J., concur.




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