                                                                           FILED
                                                                       Jan 15 2020, 8:32 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
Emilee A. Grubb                                          Ellen H. Meilaender
Deputy Public Defender                                   Supervising Deputy
Indianapolis, Indiana                                    Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles E. Barber,                                       January 15, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-PC-1234
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jeffrey L. Sanford,
Appellee-Respondent,                                     Judge
                                                         Trial Court Cause No.
                                                         71D03-1712-PC-48



Robb, Judge.




Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020                           Page 1 of 22
                                Case Summary and Issue
[1]   In 1993, Charles Barber pleaded guilty to child molesting, a Class C felony, and

      was sentenced to eight years. In 2017, Barber filed a petition for post-

      conviction relief alleging that his counsel was ineffective for failing to request a

      competency evaluation and that he was denied his right to substantive due

      process when he pleaded guilty while incompetent. Following a hearing, the

      post-conviction court denied Barber’s petition. Barber now appeals, raising two

      issues for our review which we consolidate and restate as whether the post-

      conviction court erred in denying his petition. Concluding Barber did not meet

      his burden of establishing his claims by a preponderance of the evidence and

      therefore, the post-conviction court did not clearly err in denying the petition,

      we affirm.



                            Facts and Procedural History
[2]   In February 1993, the State charged Barber with child molesting. The trial

      court appointed Anthony Luber to represent him. In June 1993, Barber

      pleaded guilty to the charge in exchange for the State agreeing to forego adding

      an habitual offender enhancement. Barber was thirty-six years old at the time

      of his guilty plea. He had completed eighth grade but was unable to read or

      write. At the plea hearing, Luber informed the trial court that Barber was

      unable to read so Luber had read the plea agreement to him before he signed it.

      Barber “did ask several questions during that process and some of the terms and

      phrases were explained to him.” Trial Exhibits, Volume 3 at 24. Barber

      Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020       Page 2 of 22
      confirmed to the trial court that his attorney had read the plea agreement to him

      and they had a chance to talk about it before he signed it. The trial court asked

      Barber if he had any physical, emotional, or mental condition that would make

      it difficult for him to understand things or make decisions. Barber answered,

      “Just . . . reading and writing.” Id. at 25. The trial court then asked, “But in

      terms of understanding what people are talking about and what . . . you’re

      deciding . . ., no problem?” Id. Barber answered, “No.” Id. The trial court

      advised Barber of the rights he would be waiving by pleading guilty and Barber

      confirmed he understood and indicated he wished to proceed with the guilty

      plea. Luber then questioned Barber about the precipitating incident in order to

      lay a factual basis. Barber responded appropriately to questions posed to him

      during the plea hearing.


[3]   Before sentencing, Barber was referred for a diagnostic report from the Indiana

      Department of Correction (“DOC”) because a psychological evaluation was

      required for him to be considered for a community corrections placement. At

      the sentencing hearing, Luber acknowledged that Barber “doesn’t function at a

      very high level although he does have some intelligence. . . . He functions very

      well in an institutional setting. He has been a trustee in the jail because he is

      reliable. And if he is given a task to do, he does it.” Id. at 7-8. Luber also

      referenced the DOC report, which indicated that “while he is illiterate, he does

      possess enough mental attributes to be able to overcome that.” Id. at 9. Barber

      received an eight-year sentence with four and one-half years suspended to




      Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020       Page 3 of 22
      probation, the first year of which was to be served in community corrections.

      He completed his sentence in October 1999.


[4]   On December 8, 2017, Barber filed a pro se Petition for Post-Conviction Relief

      alleging ineffective assistance of counsel and “knowing & voluntary plea” as

      grounds for relief. Appendix to Brief of Petitioner-Appellant, Volume Two at

      16. The petition was later amended by counsel to elaborate upon those grounds

      for relief:


              Petitioner Barber was denied his right to substantive due process
              of law as guaranteed by the Fifth and Fourteenth Amendments
              to the United States Constitution and Article One, Sections 12
              and 13 of the Indiana Constitution when he pled guilty while
              incompetent.


              ***


              Petitioner Barber was denied his rights to due process of law and
              the effective assistance of counsel as guaranteed by the Fifth,
              Sixth, and Fourteenth Amendments to the United States
              Constitution and Article One, Sections 12 and 13 of the Indiana
              Constitution, when trial counsel failed to request a competency
              evaluation.


      Id. at 31-32. The State’s answer asserted the defenses of res judicata, laches,

      and waiver. At the beginning of the post-conviction hearing, however, the State

      informed the post-conviction court that it was not proceeding on res judicata or

      waiver, as Barber had not filed a direct appeal.




      Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020        Page 4 of 22
[5]   Barber called Attorney Luber to testify during the post-conviction hearing.

      Luber had no recollection of specific conversations with Barber but described

      his typical way of handling his cases – for instance, he would usually meet with

      his clients after he was appointed, read through the discovery, and convey plea

      offers. When he received a plea offer, he would go through the agreement with

      his client, and if the client could not read, he would read the agreement to the

      client.


[6]   With regard to his experience representing incompetent clients in his fifty-year

      career, Luber noted that there are “two issues dealing with the mental thing.

      One is whether or not the matter is a defense, and the other is a question about

      . . . what the person knows and understands and can comprehend [about] what

      is going on.” Transcript of Evidence [from PCR Hearing], Volume 2 at 12. He

      described his general practice at an initial meeting:


                I try to go through a background with the person [and] I usually
                get signals about where a person is in some of those things. I ask
                simple questions . . . [a]nd it gives me a hint about it. . . . And I
                think I’m sensitive to those things. . . . [I]f I don’t think someone
                is understanding, I usually – it usually gets raised.


      Id. at 12-13. Luber recalled that Barber was “clearly in the functioning level

      and had lived a life and had made adjustments[.] So I didn’t think it was a

      thing that he was acting in a very low IQ kind of [way].” Id. at 14.


[7]   Dr. James Cates also testified at the post-conviction hearing. Dr. Cates is a

      psychologist who conducted a competency evaluation of Barber for purposes of


      Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020          Page 5 of 22
his post-conviction relief petition. This was only the second time he had been

asked to determine in the present whether someone was competent in the past.

Dr. Cates agreed with Luber’s assessment that there are two basic types of

competency: competency related to mental illness and competency related to

intellectual disability. Barber falls into the latter category. Dr. Cates reviewed a

number of documents provided to him by Barber’s PCR attorney, “[t]he

majority of them related to previous assessments which had been completed on

Mr. Barber regarding his intellectual abilities regarding his vocational skills.”

Id. at 28. He disregarded some of the reports as “irrelevant.” Id. at 47. The

report with “the most comprehensive scores” was an IQ test from December 16,

1999, in which Barber achieved a “full scale IQ of 57.” Id. at 29. After his

review of these prior reports, Dr. Cates met once with Barber for several hours

during which he administered four tests to assess Barber’s academic ability and

adaptive behavior.1 Dr. Cates found Barber to be “pleasant, engaging, friendly,

and very child-like[,]” id., but his vocabulary was “much more limited” than he

would expect from an adult, id. at 30. Results from the testing in 2018 showed

Barber had a full scale IQ of 46, which Dr. Cates described as “rais[ing] a red

flag that this is probably an individual who is going to have significant difficulty

understanding what’s going on in the courtroom and being able to assist their

attorney in any kind of defense.” Id. at 34. Dr. Cates testified that the change




1
 Dr. Cates described adaptive behavior as “a measure of . . . how well he does with activities of daily living”
with respect to communication, daily living skills, and socialization. Id. at 37.

Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020                               Page 6 of 22
      in IQ from 1999 to 2018 was not a “big difference[.]” Id. at 53. He

      acknowledged that the scores in and of themselves do not indicate

      incompetence, but the low academic ability indicated by Barber’s scores cause

      concern that “even if information is read to him, he is going to have

      tremendous difficulty understanding it.” Id. at 37. Dr. Cates thinks he can “do

      a pretty good job of assessing people’s IQ just on the fly[,]” but after meeting

      Barber, “I would never have assessed him as low functioning as he is.” Id. at

      58.


[8]   Dr. Cates’ conclusion, “based on both historical data and the data [he]

      collected” about Barber’s academic ability and adaptive behavior, was that

      Barber “is not now competent and was not competent in prior time to stand

      trial.” Id. at 42. With regard to Barber’s past competence, Dr. Cates opined

      that Barber “has been intellectually disabled across his life. . . . The records

      suggest a long standard pattern of intellectual disability, of poor adaptive

      functioning.” Id. Although Barber suffered a stroke in 2017 that caused

      increased difficulty with his memory and numbness on his left side, Dr. Cates

      stated that “there is not evidence that [the stroke] has significantly impaired his

      intellectual functioning or changed his intellectual functioning from what it was

      previously.” Id. Dr. Cates’ opinion as to Barber’s competence at the time he

      pleaded guilty in this case was that “his competence in 1993 would not have

      been there. He was not competent in 1993.” Id. at 43.


[9]   The parties stipulated that the Indiana State Police detective who had

      investigated Barber’s 1993 case died in 2015. Additionally, the court took

      Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020       Page 7 of 22
       judicial notice of the “flat file” in the criminal case. Id. at 63. The “flat file”

       apparently contained some but not all of the pleadings and documents from the

       underlying case. See id. at 22 (post-conviction court noting and the State

       agreeing the pre-sentence investigation and DOC diagnostic report were not

       contained in the “flat file” and therefore not part of the trial court’s record). 2


[10]   The post-conviction court entered findings of fact and conclusions of law

       denying Barber’s petition. Specifically, the post-conviction court concluded:


                In this particular case, this Court need only look at the first prong
                of the Strickland test. [Barber] appeared before the [trial c]ourt on
                April 1, 8, June 11, 17, 18, July 16, September 22, 29, October 4,
                5, 1993. When he pled, Barber answered negatively that he had
                a mental condition that would make it difficult for him to
                understand. He just couldn’t read or write.


                ***


                This Court finds, based on the evidence presented, that Mr.
                Luber’s performance did not fall below an objective standard of
                reasonableness based on prevailing norms. [Barber] appeared
                numerous times in court, and the Judge detected no mental
                health issues and the DOC detected no IQ issues. There is
                nothing in the record that would have tipped off Luber there was
                a problem. This Court cannot hold that Mr. Luber’s
                performance was deficient.




       2
        The State’s proposed findings and conclusions contain many citations to the flat file. See App. to Br. of
       Petitioner-Appellant, Vol. Two at 60-80. The materials from the flat file were not made a part of the record
       submitted to this court on appeal, however, and we do not have access to them.

       Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020                              Page 8 of 22
       Appealed Order at 5-6.3



                                   Discussion and Decision
                        I. Post-Conviction Standard of Review
[11]   Barber appeals the denial of his petition for post-conviction relief. Post-

       conviction proceedings are not a “super-appeal.” Garrett v. State, 992 N.E.2d

       710, 718 (Ind. 2013). Rather, they provide “a narrow remedy to raise issues

       that were not known at the time of the original trial or were unavailable on

       direct appeal.” Id.


[12]   Post-conviction proceedings are civil in nature and the petitioner must therefore

       establish his claims by a preponderance of the evidence. Ind. Post-Conviction

       Rule 1(5). A petitioner who has been denied relief faces a “rigorous standard of

       review.” Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001). To prevail, 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. Hall v. State, 849 N.E.2d 466, 469 (Ind. 2006). When reviewing the post-

       conviction court’s order denying relief, we will “not defer to the post-conviction

       court’s legal conclusions,” and the “findings and judgment will be reversed only

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




       3
        The post-conviction court did not separately address Barber’s standalone claim that his plea was not
       knowing and voluntary.

       Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020                            Page 9 of 22
       conviction that a mistake has been made.” Humphrey v. State, 73 N.E.3d 677,

       682 (Ind. 2017) (quoting Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000),

       cert. denied, 534 U.S. 830 (2001)). The post-conviction court is the sole judge of

       the weight of the evidence and the credibility of witnesses. Fisher v. State, 810

       N.E.2d 674, 679 (Ind. 2004).


                                                 II. Laches
[13]   The State asserts that Barber’s claims are barred by laches and should not be

       considered on the merits. Laches arises when a party neglects to raise a known

       claim for an unreasonable period of time resulting in prejudice to the opposing

       party. Edmonson v. State, 87 N.E.3d 534, 537 (Ind. Ct. App. 2017). But laches

       implies something more than the lapse of time; it requires some change of

       circumstances that makes the relief sought inequitable. Kosciusko Cty. Cmty.

       Fair, Inc. v. Clemens, 116 N.E.3d 1131, 1139 (Ind. Ct. App. 2018). The State,

       having the burden of proving the affirmative defense of laches, must therefore

       prove by a preponderance of the evidence that Barber unreasonably delayed in

       seeking relief and that it was prejudiced by the delay. Balderas v. State, 116

       N.E.3d 1141, 1143 (Ind. Ct. App. 2018). In a post-conviction context,

       “prejudice exists when the unreasonable delay operates to materially diminish a

       reasonable likelihood of successful re-prosecution.” Armstrong v. State, 747

       N.E.2d 1119, 1120 (Ind. 2001).


[14]   Although the State informed the post-conviction court at the beginning of the

       post-conviction hearing that it was pursuing the defense of laches and entered


       Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020      Page 10 of 22
       into evidence a stipulation that the investigating officer was deceased, the State

       did not present any argument or other evidence regarding laches and

       specifically, prejudice. It offered no evidence about the whereabouts or

       availability of the victim or the victim’s mother or the possibility that the

       officer’s notes or the statements he took still exist in some form, and it appears

       at least some parts of the State’s and trial court’s files still exist. See supra n.2;

       see also Tr., Vol. 2 at 22 (State referencing documents from the criminal case

       that were in the prosecutor’s office’s files). Importantly, the post-conviction

       court made no findings about laches, and we therefore presume it concluded the

       State had not proven that defense. Although the passage of time between

       Barber’s guilty plea and his petition for post-conviction relief – twenty-four

       years – is considerable, we conclude the State failed to make the required

       showing of prejudice and we decline to decide this case on the basis of laches

       given the record before us.


                         III. Ineffective Assistance of Counsel
[15]   Barber claims the post-conviction court erred in concluding his trial counsel’s

       assistance was not ineffective when he did not request a competency evaluation

       prior to allowing him to plead guilty. The Sixth Amendment to the United

       States Constitution guarantees a criminal defendant the right to counsel and

       mandates “that the right to counsel is the right to the effective assistance of

       counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quotation

       omitted).



       Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020          Page 11 of 22
[16]   Generally, to prevail on a claim of ineffective assistance of counsel a petitioner

       must demonstrate both that his counsel’s performance was deficient and that

       the petitioner was prejudiced by the deficient performance. French v. State, 778

       N.E.2d 816, 824 (Ind. 2002) (citing Strickland, 466 U.S. at 687, 694). A

       counsel’s performance is deficient if it falls below an objective standard of

       reasonableness based on prevailing professional norms. Id. To meet the test for

       prejudice, the petitioner must show that there is a reasonable probability that,

       but for counsel’s unprofessional errors, the result of the proceeding would have

       been different. Id. A reasonable probability is a probability sufficient to

       undermine confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind.

       2001). Failure to satisfy either prong will cause the claim to fail. French, 778

       N.E.2d at 824. When we consider a claim of ineffective assistance of counsel,

       we apply a “strong presumption . . . that counsel rendered adequate assistance

       and made all significant decisions in the exercise of reasonable professional

       judgment.” Morgan v. State, 755 N.E.2d 1070, 1073 (Ind. 2001). “[C]ounsel’s

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

       convincing evidence to overcome this presumption.” Williams v. State, 771

       N.E.2d 70, 73 (Ind. 2002).


[17]   Because Barber was convicted pursuant to a guilty plea, we also analyze his

       claims under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura identifies two

       main types of ineffective assistance of counsel claims with regard to guilty

       pleas: failure to advise the defendant on an issue that impairs or overlooks a

       defense and incorrectly advising the defendant about penal consequences.

       Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020     Page 12 of 22
       Manzano v. State, 12 N.E.3d 321, 326 (Ind. Ct. App. 2014), trans. denied; cert.

       denied, 135 S.Ct. 2376 (2015). Barber’s claim, that his trial counsel failed to

       investigate a possible defense, appears to fall into the first category. To

       establish a claim of ineffective assistance of trial counsel following a guilty plea

       where the alleged error is one that would have affected a defense, the petitioner

       must show a reasonable probability of success on the merits. Segura, 749

       N.E.2d at 503. In other words, to show prejudice, Barber must prove that “a

       defense was indeed overlooked or impaired and that the defense would have

       likely changed the outcome of the proceeding.” Maloney v. State, 872 N.E.2d

       647, 650 (Ind. Ct. App. 2007).


[18]   Barber contends that had Luber investigated his competency and requested a

       competency hearing, there is a reasonable probability he would have been

       found incompetent. A defendant is not competent to stand trial when he is

       unable to understand the proceedings and assist in the preparation of his

       defense. Mast v. State, 914 N.E.2d 851, 856 (Ind. Ct. App. 2009), trans. denied;

       see also Ind. Code § 35-36-3-1(a). Due process precludes convicting and

       sentencing an incompetent defendant. Gross v. State, 41 N.E.3d 1043, 1047

       (Ind. Ct. App. 2015). Indiana statutes “control the appropriate way to

       determine a defendant’s competency and, if necessary, to commit the defendant

       and provide restoration services.” Curtis v. State, 948 N.E.2d 1143, 1153 (Ind.

       2011); Ind. Code ch. 35-36-3. When there is reason to believe a criminal

       defendant lacks the ability to understand court proceedings and assist his

       attorney, the trial court should set a hearing and appoint two or three

       Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020      Page 13 of 22
       disinterested professionals to evaluate his competency. Gross, 41 N.E.3d at

       1047; see also Ind. Code § 35-36-3-1(a). If, after a hearing at which evidence

       pertaining to the defendant’s competency is presented, the trial court determines

       the defendant lacks the ability to understand the proceedings and assist in the

       preparation of his defense, the trial will be delayed while the defendant

       undergoes competency restoration services. Ind. Code § 35-36-3-1(b). But the

       right to a competency hearing is not absolute. Campbell v. State, 732 N.E.2d

       197, 202 (Ind. Ct. App. 2000). Such a hearing is required only when the trial

       court is confronted with evidence creating a bona fide doubt as to a defendant’s

       competency. Mast, 914 N.E.2d at 856. The presence of indicators that would

       require the court to conduct a hearing under Indiana Code section 35-36-3-1 are

       determined on the facts of each case. Id.


[19]   Here, the evidence Barber presented at the post-conviction hearing does not

       lead unerringly and unmistakably to the conclusion that his trial counsel’s

       performance fell below an objective standard of reasonableness with regard to

       investigating Barber’s competence. During the underlying criminal

       proceedings, Luber was aware that Barber was illiterate, but noted at the post-

       conviction hearing that “[n]ot being able to read does not necessarily mean that

       you’re low intellectual level [and] the fact that you can read doesn’t necessarily

       mean that you don’t have a deficiency in your comprehension and

       understanding.” Tr., Vol. 2 at 15-16. At Barber’s plea hearing, Luber indicated

       that when he read the plea agreement to Barber, Barber asked several questions

       and Luber explained certain terms and phrases to him. At Barber’s sentencing


       Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020     Page 14 of 22
       hearing, Luber told the trial court that Barber “doesn’t function at a very high

       level,” but noted that he had “some intelligence” and was reliable and able to

       complete assigned tasks. Trial Exhibits, Vol. 3 at 7. The DOC report indicated

       that he “possess[ed] enough mental attributes” to overcome his illiteracy. Id. at

       9. And the trial court, in front of which Barber had appeared numerous times

       and which received the DOC diagnostic report, apparently believed that when

       Barber said he had no mental condition that would prevent him from

       understanding the proceedings and making appropriate decisions, he was telling

       the truth. At the post-conviction hearing, Luber testified that he did not recall

       the specifics of Barber’s case, but that he generally asked questions of his clients

       that would give him “signals” as to a client’s comprehension and if he did not

       think someone was understanding what was going on, “it usually [got] raised.”

       Tr., Vol. 2 at 12-13. He did recall that Barber was “clearly in the functioning

       level” and he did not think there was any reason to question that Barber was

       competent to understand the proceedings and assist in his defense. Id. at 14.


[20]   Dr. Cates opined Barber would not have been competent in 1993; however, his

       testimony mostly concerned Barber’s intellectual and adaptive state years after

       the guilty plea. Even accepting Dr. Cates’ opinion in 2019 that Barber was not

       competent twenty-five years earlier, Dr. Cates also stated that although he can

       generally assess people’s IQ even before receiving test results, he was surprised

       after meeting Barber that his scores were so low. If Barber presented to an

       expert in the field as functioning at a higher level than his scores would




       Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020      Page 15 of 22
       indicate, we cannot say that Luber should have been able to recognize his

       competency might be an issue.


[21]   We also note that during the underlying proceedings in 1993, the State

       considered filing an habitual offender enhancement against Barber, indicating

       that he had at least two prior felony convictions at that time. See Ind. Code §

       35-50-2-8 (1990). Despite Dr. Cates’ testimony that the historical data “spoke

       in terms of a mild mental retardation consistently across time[,]” Tr., Vol. 2 at

       28, there is no evidence in the record that Barber’s competency was questioned

       during those earlier proceedings. And given the fact that Barber appeared

       before the trial court on ten occasions in this case and the trial court found no

       reason to question Barber’s competency, we cannot say that if Luber had filed a

       request for a competency examination, the trial court would have had a bona

       fide doubt about his competency, granted the request, and found him

       incompetent. See Campbell, 732 N.E.2d at 202 (“A trial judge’s observations of

       a defendant in court are an adequate basis for determining whether a

       competency hearing is necessary[.]”).


[22]   Under these facts and circumstances, Barber has failed to prove by a

       preponderance of the evidence that Luber’s performance was deficient in

       overlooking a valid defense or that the defense, if raised, would have likely

       changed the outcome of this proceeding. See Maloney, 872 N.E.2d at 650.

       There is simply no contemporaneous evidence that casts doubt on his

       competence in 1993. Therefore, the post-conviction court did not clearly err in



       Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020     Page 16 of 22
       determining that Luber’s failure to investigate Barber’s competence or seek a

       competency hearing was not ineffective assistance.


                      IV. Knowing and Voluntary Guilty Plea
[23]   Barber also claims that he is entitled to post-conviction relief because his guilty

       plea was not knowing and voluntary as he was incompetent at the time he

       entered the plea. Because a guilty plea constitutes a waiver of constitutional

       rights, the defendant’s decision to plead guilty must be knowing, voluntary, and

       intelligent. Davis v. State, 675 N.E.2d 1097, 1102 (Ind. 1996). But a defendant

       cannot knowingly and voluntarily waive his constitutional rights if he is not

       sufficiently competent to do so. See Suldon v. State, 580 N.E.2d 718, 720 (Ind.

       Ct. App. 1991). As stated above, a defendant is not competent when he is

       unable to understand the proceedings and assist in the preparation of his

       defense. Ind. Code § 35-36-3-1(a). The conviction of an incompetent defendant

       is a denial of due process. Faris v. State, 901 N.E.2d 1123, 1125 (Ind. Ct. App.

       2009), trans. denied.


[24]   Barber argues that Dr. Cates’ testimony shows he was incompetent in 1993 and

       asserts that his conviction and sentence should be vacated as a result. A

       petitioner may make a substantive due process competency claim by alleging

       that he was, in fact, tried and convicted while incompetent. James v. Singletary,

       957 F.2d 1562, 1571 (11th Cir. 1992). Trying an incompetent defendant is an

       undue process regardless of whether any person could have or should have

       diagnosed the defendant’s incompetency at the time. Id. at 1573. Thus, our


       Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020      Page 17 of 22
       decision regarding ineffective assistance of counsel, though informative, is not

       dispositive of this claim. To prove a substantive competency claim, the

       petitioner must present clear and convincing evidence “creating a ‘real,

       substantial, and legitimate doubt’ as to his competence[.]” Medina v. Singletary,

       59 F.3d 1095, 1106 (11th Cir. 1995) (quoting James, 957 F.2d at 1573).


[25]   We note at this point that Barber essentially asked the post-conviction court,

       and now this court, to determine whether or not he was competent in 1993

       based on the testimony given at the post-conviction hearing. However, as

       noted above, when there is a bona fide reason to believe a defendant is

       incompetent, the procedures to be followed are outlined in Indiana Code

       section 35-36-3-1, which requires the appointment of at least two medical

       professionals to examine the defendant and testify at an evidentiary hearing. At

       the evidentiary hearing, “other evidence relevant to whether the defendant has

       the ability to understand the proceedings and assist in the preparation of the

       defendant’s defense may be introduced.” Ind. Code § 35-36-3-1(b). The post-

       conviction hearing was not the required evidentiary hearing. Thus, the only

       relief that could be granted here is to remand the issue to the trial court to

       conduct the appropriate competency hearing if Barber’s evidence shows a “real,

       substantial, and legitimate doubt” about his competence in 1993. Medina, 59

       F.3d at 1106; see also James, 957 F.2d at 1575 (court, after reviewing petitioner’s

       allegations of actual incompetency and finding that he presented clear and

       convincing evidence raising a substantial doubt as to his competency,

       remanding to the district court to conduct an evidentiary hearing on his claim).


       Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020      Page 18 of 22
[26]   Twenty-four years passed between Barber’s guilty plea and his petition alleging

       he was incompetent at the time he pleaded. Barber’s evidence that he was

       incompetent in 1993 consists primarily of evidence that he was illiterate and

       had a low IQ. However, as Luber pointed out, an inability to read does not

       necessarily equate to an inability to understand and vice versa. See Tr., Vol. 2

       at 34, 36. And a low IQ does not necessarily indicate an inability to

       comprehend legal proceedings, especially where the defendant is assisted by

       counsel, adequately advised of his rights, and has experience with the criminal

       courts. See Anness v. State, 256 Ind. 368, 370-71, 269 N.E.2d 8, 10 (1971)

       (addressing defendant’s waiver of the right to trial by jury). Barber also relies

       on Dr. Cates’ opinion, based on his review of historical data and the results of

       tests he conducted, that Barber’s “competence in 1993 would not have been

       there.” Tr., Vol. 2 at 43. But in reaching that opinion, Dr. Cates disregarded

       some of the historical data as irrelevant and the earliest data he cited was from

       1999, six years after Barber pleaded guilty. Additionally, Dr. Cates’ testing was

       conducted after Barber suffered a stroke. Although Dr. Cates expressed a clear

       opinion, the post-conviction court was free to reject the expert testimony. See

       Fisher, 810 N.E.2d at 679 (stating the post-conviction court is the sole judge of

       witness credibility).


[27]   Barber contends that all the evidence from the post-conviction hearing leads to

       only one conclusion: that he was incompetent when he pleaded guilty. See

       Reply Brief of Petitioner-Appellant at 11. However, Barber offered no

       contemporaneous medical or psychological evidence of his competence in


       Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020     Page 19 of 22
       1993. Neither Luber nor the trial court, who were in the position to interact

       with Barber before and during the proceedings, indicated any concerns about

       Barber’s competence at the time. And Luber testified at the post-conviction

       hearing that although Barber had an intellectual disability, his interactions with

       Barber during the proceedings in 1993 did not lead him to believe Barber’s

       competence was an issue. The transcripts of the guilty plea and sentencing

       hearings show that Barber affirmatively denied any mental defect affecting his

       ability to understand the proceedings and make decisions, and he responded

       appropriately to all questions posed to him in court. Thus, all the

       contemporaneous evidence from 1993 indicates Barber was competent to

       knowingly and voluntarily enter a guilty plea and the contrary evidence offered

       by Barber fails to create a real, substantial, and legitimate doubt as to that fact.


[28]   Barber did not show the evidence as a whole leads unerringly and unmistakably

       to the conclusion that he was incompetent when he pleaded guilty in 1993.

       Therefore, the post-conviction court did not clearly err in denying Barber’s

       claim for post-conviction relief.



                                               Conclusion
[29]   Our review of the post-conviction court’s judgment does not leave us with the

       conviction that a mistake has been made: Barber did not prove by a

       preponderance of the evidence that his trial counsel was ineffective in failing to

       request a competency hearing or that he was in fact incompetent at the time he



       Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020       Page 20 of 22
       pleaded guilty. We therefore affirm the post-conviction court’s order denying

       Barber’s petition for post-conviction relief.


[30]   Affirmed.


       Pyle, J., concurs.


       Mathias, J., concurs with separate opinion.




       Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020   Page 21 of 22
                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Charles E. Barber,                                       Court of Appeals Case No.
                                                               19A-PC-1234
      Appellant-Petitioner,

              v.

      State of Indiana,
      Appellee-Respondent,




      Mathias, Judge, concurring.


[1]   I write only to reiterate that competency evaluations immediately upon arrest

      are the best way for our criminal justice system to fairly treat those defendants

      who are mentally ill or deficient. At some point, such immediate competency

      evaluations will be recognized as an integral part of due process. See Wampler v.

      State, 67 N.E.3d 663 (Ind. 2017).




      Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020                 Page 22 of 22
