MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                  Aug 15 2019, 10:54 am

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


APPELLANT, PRO SE                                        ATTORNEYS FOR APPELLEE
Todd Daniels                                             Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Todd Daniels,                                            August 15, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-PC-388
        v.                                               Appeal from the Ripley Circuit
                                                         Court
State of Indiana,                                        The Honorable Jeffrey L. Sharp,
Appellee-Plaintiff.                                      Special Judge
                                                         Trial Court Cause No.
                                                         69C01-1710-PC-1



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-388 | August 15, 2019                      Page 1 of 8
                                             Case Summary
      Daniels appeals pro se the denial of his post-conviction petition. He argues that

      the post-conviction court erred when it determined that his trial counsel was not

      ineffective. Concluding that the post-conviction court did not err, we affirm the

      denial of Daniels’ petition.


                                                     Issue
              Whether the post-conviction court erred in denying Daniels’
              petition for post-conviction relief.


                                                     Facts
[1]   In August 2002, a jury convicted Daniels of three counts of Class A felony child

      molesting, five counts of Class B felony and one count of Class C felony incest,

      and one count of Class B felony sexual misconduct with a minor. The trial

      court sentenced him to an aggregate sixty (60) year sentence, and this Court

      affirmed his convictions and sentence on direct appeal. See Daniels v. State,

      Cause Number 69A05-0210-CR-524 (July 9, 2003).


[2]   In October 2017, Daniels filed a pro se petition for post-conviction relief

      wherein he argued that he had received ineffective assistance of trial counsel.

      Specifically, he contended that his trial counsel “was ineffective for failing to

      present [him] with a plea offer made by the State.” (App. Vol. 2 at 12). Daniels

      further explained that he had discovered the plea offer while reading through

      the Record of Proceedings and his attorney-client file in preparation for filing

      his post-conviction petition. According to Daniels, if trial counsel had

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-388 | August 15, 2019   Page 2 of 8
      “presented the offer to [] Daniels and offered sound advice regarding the

      mounting evidence, he surely would have accepted the plea agreement,” which

      would have allowed him to plead guilty to one count of Class B felony incest

      and one count of Class C felony incest. (App. Vol. 2 at 13).


[3]   At the April 2018 post-conviction hearing, Daniels’ trial counsel, John

      Kellerman II (“Kellerman”), who had been a licensed Indiana attorney since

      1993, testified that he knew that the prosecutor’s office had sent him a plea

      offer. He did not specifically remember showing the offer to Daniels.

      However, Kellerman explained that when he received plea offers from the

      prosecutor’s office, he considered them to be formal offers and that it was his

      common practice to present them to his clients. He had no reason to believe

      that he had not followed his practice in this case and presented the offer to

      Daniels. Kellerman also testified that he “had had multiple conversations with

      [Daniels] about [Daniels’] intentions in this case.” (Tr. Vol. 2 at 12).

      According to Kellerman, Daniels had “made it very plain to [him], on all of the

      occasions, that he was innocent and that he was maintaining his innocence and

      that since he wasn’t guilty of anything, he was going to be vindicated.” (Tr.

      Vol. 2 at 12).


[4]   Daniels testified that Kellerman had never communicated the plea offer to him

      and that he would have accepted it “given the evidence that was mounting.”

      (Tr. Vol. 2 at 15). He also testified that “it was [his] intention throughout the

      entirety of the proceedings to plead not guilty.” (Tr. Vol. 2 at 18).



      Court of Appeals of Indiana | Memorandum Decision 19A-PC-388 | August 15, 2019   Page 3 of 8
[5]   Following the hearing, the post-conviction court gave the parties thirty days in

      which to file proposed findings and conclusions. The State filed its proposed

      findings and conclusions on May 10, 2018, the thirtieth day after the hearing.

      The following day, the post-conviction court issued its findings and conclusions

      denying Daniels’ petition.


[6]   In June 2018, Daniels filed a motion to correct error wherein he alleged that

      although his proposed findings had not been file-stamped by the Clerk of the

      Court until May 14, 2018, three days after the post-conviction court had issued

      its findings, he had signed and dated the Certificate of Service on his proposed

      findings on May 7, 2018. He asked the trial court to grant his motion based on

      the prison mailbox rule, review his proposed findings and conclusions, and

      issue a new order.


[7]   In response to Daniels’ motion, in June 2018, the post-conviction court vacated

      its prior order denying Daniels relief to allow it to review his proposed findings.

      In January 2019, the post-conviction court issued findings of fact and

      conclusions of law denying Daniels’ petition. Specifically, the post-conviction

      court, which adopted the State’s proposed findings, concluded as follows:


              12. Based on [Daniels] unfettered insistence that he wanted a
              trial, his statements to [Kellerman] that he was going to be
              vindicated, and [Kellerman’s] testimony that he has no reason to
              believe he did not present the plea offer just as he has as a matter
              of course in all of his criminal cases, the Court does not find
              [Daniels’] testimony to be credible that he was not informed of
              the plea agreement.


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-388 | August 15, 2019   Page 4 of 8
      (App. Vol. 2 at 92-93). Daniels appeals the denial of his petition.


                                                      Decision
[8]   At the outset, we note that Daniels proceeds pro se. A litigant who proceeds

      pro se is held to the same rules of procedure that trained counsel is bound to

      follow. Smith v. Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans.

      denied, cert. dismissed. One risk a litigant takes when he proceeds pro se is that he

      will not know how to accomplish all the things an attorney would know how to

      accomplish. Id. When a party elects to represent himself, there is no reason for

      us to indulge in any benevolent presumption on his behalf or to waive any rule

      for the orderly and proper conduct of his appeal. Foley v. Mannor, 844 N.E.2d

      494, 502 (Ind. Ct. App. 2006).


[9]   Daniels argues that the post-conviction court erred when it determined that his

      trial counsel was not ineffective.1 A defendant who has exhausted the direct




      1
        Daniels also argues that the post-conviction court erred when it adopted the State’s findings. However, the
      Indiana Supreme Court has observed that “[i]t is not uncommon for a trial court to enter findings that are
      verbatim reproductions of submissions of the prevailing party.” Prowell v. State, 741 N.E.2d 704, 708 (Ind.
      2001). This is because “[t]he trial courts of this state are faced with an enormous volume of cases and few
      have the law clerks and other resources that would be available in a more perfect world to help craft more
      elegant trial court findings and legal reasoning.” Id. The need to keep the docket moving is a high priority
      for our trial bench. Id. at 709. For these reasons, the practice of adopting a party’s proposed findings is not
      prohibited. Id. Although we by no means encourage the wholesale adoption of a party’s findings and
      conclusions, where, as here, the issues in the case turn more on the credibility of the witnesses and less on
      the inferences to be drawn from the facts and the legal effect of essentially unchallenged testimony, we have
      more confidence that the findings reflect the considered judgment of the trial court. See id. We find no error
      in the post-conviction court’s adoption of the State’s findings and conclusions. In addition, Daniels’
      argument that the post-conviction court “acted rashly and hastily when it denied [Daniels] petition in one
      day” also fails. (Daniels’ Br. 15). Although the post-conviction court initially issued its findings and
      conclusions the day after receiving the State’s findings and conclusions, the post-conviction court later
      vacated that order to allow itself the opportunity to review Daniels’ proposed findings. The final order

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-388 | August 15, 2019                      Page 5 of 8
       appeal process may challenge the correctness of his conviction and sentence by

       filing a post-conviction petition. Parish v. State, 838 N.E.2d 495, 499 (Ind. Ct.

       App. 2005), trans. denied. Post-conviction procedures do not provide an

       opportunity for a super appeal. Id. Rather, they create a narrow remedy for

       subsequent collateral challenges to convictions that must be based on grounds

       enumerated in the post-conviction rules. Id. Post-conviction proceedings are

       civil proceedings, and a defendant must establish his claims by a preponderance

       of the evidence. Id.


[10]   In reviewing the judgment of a post-conviction court, this Court considers only

       the evidence and reasonable inferences supporting its judgment. Hall v. State,

       849 N.E.2d 466, 468 (Ind. 2006). The post-conviction court is the sole judge of

       the evidence and the credibility of witnesses. Id. at 468-69. To prevail on

       appeal from the denial of post-conviction relief, the petitioner must show that

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

       opposite that reached by the post-conviction court. Id. at 469. Only where the

       evidence is without conflict and leads to but one conclusion, and the post-

       conviction court has reached the opposite conclusion, will the court’s findings

       or conclusions be disturbed as being contrary to law. Id.


[11]   Daniels argues that the post-conviction court erred when it determined that his

       trial counsel was not ineffective. We review claims of ineffective assistance of




       denying Daniels’ petition was issued more than six months later. Lastly, we agree with the State that
       Daniels’ “claims of factual error in the adopted findings are either incorrect or immaterial.” (State’s Br. 14).

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-388 | August 15, 2019                        Page 6 of 8
       trial counsel under the two-prong test established in Strickland v. Washington,

       466 U.S. 668 (1984). The defendant must show that trial counsel’s performance

       fell below an objective standard of reasonableness based on prevailing

       professional norms and that there is a reasonable probability that, but for

       counsel’s errors, the result of the proceeding would have been different. Moody

       v. State, 749 N.E.2d 65, 67 (Ind. Ct. App. 2001), trans. denied.


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

       we will accord those decisions deference on appeal. Wrinkles v. State, 749

       N.E.2d 1179, 1195 (Ind. 2001), cert. denied. Counsel’s performance is presumed

       effective, and a defendant must offer strong and convincing evidence to

       overcome this presumption. Smith v. State, 822 N.E.2d 193, 202 (Ind. Ct. App.

       2005), trans. denied. We will not speculate as to what may or may not have been

       advantageous trial strategy as counsel should be given deference in choosing a

       trial strategy which, at the time and under the circumstances, seems best.

       Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998).


[13]   Here, Daniels contends that he is entitled to post-conviction relief because his

       trial counsel was ineffective for failing to communicate a plea offer to him.

       Failure to communicate a plea offer is deficient performance that falls below an

       objective standard of reasonableness. Woods v. State, 48 N.E.3d 374, 381 (Ind.

       Ct. App. 2015) (citing Missouri v. Frye, 566 U.S. 134, 145 (2012)). Here,

       however, the only evidence that supports Daniels’ claim is his self-serving

       testimony that Kellerman did not communicate the plea offer to him. On the

       other hand, Kellerman testified that although he did not specifically remember

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-388 | August 15, 2019   Page 7 of 8
       showing the offer to Daniels, it was his common practice to present such offers

       to his clients. He further had no reason to believe that he had not followed his

       practice in this case. Kellerman also testified that he had had many

       conversations with Daniels about the case, and Daniels had made it very clear

       that he planned to maintain his innocence because he was not guilty of any

       crimes. Even Daniels testified that it had been his intention throughout the case

       to plead not guilty. Daniels has failed to carry his burden to show that the

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

       that reached by the post-conviction court. His argument simply asks this Court

       to reweigh the evidence, which we cannot do. See Hall, 849 N.E.2d at 468.


[14]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-388 | August 15, 2019   Page 8 of 8
