                                                                                       FILED
                                                                                 Jul 31 2020, 8:47 am

                                                                                       CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Jeffrey A. Baldwin                                        Curtis. T. Hill, Jr.
      Tyler D. Helmond                                          Attorney General
      Voyles Vaiana Lukemeyer Baldwin &
      Webb                                                      Ellen H. Meilaender
      Indianapolis, Indiana                                     Supervising Deputy Attorney
                                                                General
                                                                Indianapolis, Indiana




                                                   IN THE
           COURT OF APPEALS OF INDIANA

      Jerry Jones,                                              July 31, 2020
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                19A-PC-3051
              v.                                                Appeal from the Dearborn Circuit
                                                                Court
      State of Indiana,                                         The Honorable James D.
      Appellee-Respondent                                       Humphrey, Judge
                                                                Trial Court Cause No.
                                                                15C01-1712-PC-19



      Crone, Judge.


                                               Case Summary
[1]   Jerry Jones appeals the denial of his petition for post-conviction relief (PCR),

      arguing that the post-conviction court clearly erred in determining that he failed

      Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020                                  Page 1 of 23
      to demonstrate that his guilty plea counsel provided ineffective assistance.

      Finding that he either failed to establish or waived the alleged errors, we affirm.


                                   Facts and Procedural History
[2]   Between July 1 and August 20, 2014, Jones, his wife Chauntel, and Anita

      Smith, with the intent to commit the crime of level 2 felony dealing in

      (manufacturing) methamphetamine in an amount over ten grams, agreed to

      commit that crime; and in furtherance of that agreement, Smith provided Jones

      with lye, cold packs, lithium batteries, and pseudoephedrine, and/or Jones

      manufactured methamphetamine. On August 20, 2014, Dearborn County

      Sheriff’s Department officers obtained and simultaneously executed search

      warrants for Smith’s residence and Jones’s residence. Ex. Vol. at 11-13. At

      Jones’s residence, police found sources and potential sources of

      pseudoephedrine, lithium, sulfuric acid, organic solvents, hydrochloric acid,

      ammonium nitrate, and sodium hydroxide, and items used to manufacture

      methamphetamine including multiple plastic bottles containing white sludge

      and black flakes, multiple coffee filters with white residue, plastic bags with

      white residue, and a bowl containing white powder. Id. Police also found six

      firearms. Id., Tr. Vol. 2 at 36.


[3]   On August 22, 2014, the State charged Jones, Chauntel, and Smith with

      committing the following crimes between March 2014 and August 20, 2014:

      Count 1, level 2 felony dealing in (manufacturing) methamphetamine in an

      amount less than ten grams but more than five grams where an enhancing

      circumstance applied; Count 2, level 6 felony maintaining a common nuisance;
      Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020         Page 2 of 23
      and Count 3, level 2 felony conspiracy to commit dealing in (manufacturing)

      methamphetamine, and in furtherance of their agreement Smith provided Jones

      and Chauntel with lye, instant cold packs, lithium batteries, and

      pseudoephedrine, which are precursors used to manufacture

      methamphetamine. Ex. Vol. at 6. Jones was arrested, and at the police station,

      he waived his rights and gave a videotaped statement, in which he admitted

      that he had been manufacturing methamphetamine. Id. at 13.


[4]   Attorney Kevin Moser was retained by family members to represent Jones and

      Chauntel. Tr. Vol. 2 at 6-7. Prior to entering his appearance in their cases,

      Moser spoke separately to Jones and Chauntel, who were being held in the

      detention center following their arrest, to advise them of the “concerns of dual

      representation” and to make sure that his representation of both would not

      create “some kind of irreconcilable conflict.” Id. at 9, 29, 34. Jones and

      Chauntel both consented to his joint representation and signed a written waiver

      of any conflict of interest. Jones’s written waiver is not in the record before us. 1

      Id. at 34.


[5]   The prosecutor offered Jones a plea agreement, pursuant to which Jones would

      agree to plead guilty to Count 3, level 2 felony conspiracy to dealing in

      (manufacturing) methamphetamine, and in exchange the State would dismiss

      the remaining counts and recommend a sentence of thirty years with ten years



      1
        At Jones’s request, the post-conviction court took judicial notice of the court file from the underlying case,
      but Jones did not offer the written conflict-of-interest waiver as a separate exhibit.

      Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020                                   Page 3 of 23
      suspended. Ex. Vol. at 16-17. After reviewing the State’s discovery, including

      Jones’s videotaped confession, Moser believed that this was a favorable plea

      agreement for Jones. Tr. Vol. 2 at 10, 24-25. Moser knew that the prosecutor

      viewed Jones as the most culpable of the three defendants and would not offer

      Jones a more lenient agreement. Id. at 19. The prosecutor had told Moser that

      the State would seek consecutive sentences if the case went to trial. Id. at 20.

      In addition, Smith’s counsel had informed Moser that Smith was willing to

      testify against Jones in exchange for a plea deal. Id. at 27. Moser believed that

      Jones would not “do better at trial if he went to trial” and that if he went to

      trial, “he could potentially get more time.” Id. at 24. Moser also knew that

      Jones did not want to testify against his wife and “wanted to protect his wife

      and get it over with.” Id. Neither Jones nor his wife “ever suggested even once

      that they were interested in testifying against the other one. … [T]hey stayed

      true to each other the entire time.” Id. at 21-22.


[6]   On January 21, 2015, Jones pled guilty pursuant to the plea agreement. At the

      guilty plea hearing, the trial court noted that Jones filed a written conflict-of-

      interest waiver on October 28, 2014, and that they had previously discussed a

      waiver of conflict in the matter. Ex. Vol. at 26-27. The trial court then asked

      Moser to reiterate the significance of the waiver to Jones, and Moser explained,


              As we discussed earlier, and as we’re discussing again today, you
              have the right to independent counsel at all times. That having
              me represent both of you throughout this proceeding could
              present a potential conflict of interest. …. Are you today telling
              the Judge that you waive any potential conflict of interest in this
              case pursuant to the waiver that you filed earlier[?]
      Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020           Page 4 of 23
      Id. at 27 (repetitions and hyphens omitted). Jones affirmed that he was. Id.

      Jones also testified that he was satisfied with Moser’s representation. Id. at 28.

      The State moved to amend Count 3 to allege that Jones committed conspiracy

      to manufacture methamphetamine in an amount greater than ten grams

      between July 1 and August 20, 2014, thereby bringing the dates of the criminal

      conduct under the revised criminal code. Id. at 28-29. Jones had no objection,

      and the trial court granted the State’s motion to amend.


[7]   On December 7, 2017, Jones, by counsel, filed a petition for post-conviction

      relief, alleging that his guilty plea counsel provided ineffective assistance by

      representing both him and his wife, which presented counsel with a conflict of

      interest; failing to challenge the State’s amendment to the charging information,

      thereby denying Jones the benefit of being sentenced under the allegedly more

      favorable prior version of the criminal code; and allegedly incorrectly advising

      him that he could be convicted of both Counts 1 and 3 and receive consecutive

      sentences for the convictions. Appellant’s App. Vol. 2 at 9-11.


[8]   On May 14, 2019, the post-conviction court held an evidentiary hearing, at

      which Jones and Moser testified. The parties filed proposed findings of fact and

      conclusions of law. On December 16, 2019, the post-conviction issued an

      order, finding that Jones failed to show by a preponderance of the evidence that

      he received ineffective assistance of counsel and denying Jones’s petition for

      post-conviction relief. This appeal ensued.




      Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020          Page 5 of 23
                                       Discussion and Decision
[9]   Jones appeals the denial of his PCR petition. We observe that “[p]ost-

      conviction proceedings are civil proceedings in which a defendant may present

      limited collateral challenges to a conviction and sentence.” Gibson v. State, 133

      N.E.3d 673, 681 (Ind. 2019) (citing Ind. Post-Conviction Rule 1(1)(b)), petition

      for cert. filed, (July 6, 2020). “The scope of potential relief is limited to issues

      unknown at trial or unavailable on direct appeal.” Id. A defendant who files a

      petition for post-conviction relief, “bears the burden of establishing grounds for

      relief by a preponderance of the evidence.” Ind. Post-Conviction Rule 1(5);

      Humphrey v. State, 73 N.E.3d 677, 681 (Ind. 2017). Because the defendant is

      appealing from the denial of post-conviction relief, he is appealing from a

      negative judgment:


              Thus, the defendant must establish that the evidence, as a whole,
              unmistakably and unerringly points to a conclusion contrary to
              the post-conviction court’s decision. In other words, the
              defendant must convince this Court that there is no way within
              the law that the court below could have reached the decision it
              did. We review the post-conviction court’s factual findings for
              clear error, but do not defer to its conclusions of law.


      Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013) (citations and quotation

      marks omitted). We will not reweigh the evidence or judge the credibility of

      witnesses and will consider only the probative evidence and reasonable

      inferences flowing therefrom that support the post-conviction court’s decision.

      Hinesley v. State, 999 N.E.2d 975, 981 (Ind. Ct. App. 2013), trans. denied (2014).


      Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020             Page 6 of 23
[10]   Jones maintains that he is entitled to post-conviction relief because he was

       denied the right to effective assistance of counsel guaranteed by the Sixth

       Amendment to the United States Constitution. See Strickland v. Washington, 466

       U.S. 668, 686 (1984) (“[T]he right to counsel is the right to effective assistance

       of counsel.”) (quoting McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970)).

       When considering a claim of ineffective assistance of counsel, we strongly

       presume “that counsel rendered adequate assistance and made all significant

       decisions in the exercise of reasonable professional judgment.” Weisheit v. State,

       109 N.E.3d 978, 983 (Ind. 2018), cert. denied (2019). A defendant must offer

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

       875 N.E.2d 706, 714 (Ind. 2007).


[11]   We evaluate an ineffective assistance of counsel claim with the two-part test

       articulated in Strickland, 466 U.S. 668. Humphrey, 73 N.E.3d at 682. First,

       “‘the defendant must show deficient performance: representation that fell below

       an objective standard of reasonableness, committing errors so serious that the

       defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.’”

       Id. (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). Second, the

       defendant must show prejudice. Id. In the context of a guilty plea, the

       prejudice prong of the Strickland test focuses on whether counsel’s deficient

       performance affected the outcome of the plea process. Hill v. Lockhart, 474 U.S.

       52, 59 (1985). To satisfy the prejudice requirement, the petitioner therefore

       must show that there is a reasonable probability that, but for counsel’s errors, he

       would not have pled guilty. Id. “[T]o prove they would have rejected the guilty

       Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020         Page 7 of 23
       plea and insisted on trial, defendants must show some special circumstances

       that would have supported that decision. Defendants cannot simply say they

       would have gone to trial, they must establish rational reasons supporting why

       they would have made that decision.” Bobadilla v. State, 117 N.E.3d 1272, 1284

       (Ind. 2019).


         Section 1 - Jones has failed to carry his burden to show that
         joint representation resulted in an actual conflict of interest
                that adversely affected counsel’s performance.
[12]   Jones first argues that he received ineffective assistance because his guilty plea

       counsel had an actual conflict of interest arising from his joint representation of

       Jones and his wife that adversely impacted his representation of Jones. The

       Sixth Amendment right to counsel includes the right to representation by an

       attorney who does not owe conflicting duties to other defendants. Williams v.

       State, 529 N.E.2d 1313, 1315 (Ind. Ct. App. 1988) (citing Holloway v. Arkansas,

       435 U.S. 475, 481 (1978)). However, joint representation of codefendants is not

       a per se violation of the constitutional guarantee of effective assistance of

       counsel. Id. (citing Holloway, 435 U.S. at 482). As this Court has previously

       observed, the United States Supreme Court explained the reason for this rule as

       follows:


               This principle recognizes that in some cases multiple defendants
               can appropriately be represented by one attorney; indeed, in
               some cases, certain advantages might accrue from joint
               representation. In Mr. Justice Frankfurter’s view: “Joint
               representation is a means of insuring against reciprocal


       Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020          Page 8 of 23
               recrimination. A common defense often gives strength against a
               common attack.”


       T.C.H. v. State, 714 N.E.2d 1162, 1166 (Ind. Ct. App. 1999) (quoting Holloway,

       435 U.S. at 482-83), trans. denied. “Having the defense speak with a single voice

       may reduce the ability of the prosecution to play the different defendants off

       against each other.” Id.


[13]   On the other hand, joint representation may result in a conflict of interest that

       prevents an attorney from acting in the best interest of one or more of his or her

       clients:


               Joint representation of conflicting interests is suspect because of
               what it tends to prevent the attorney from doing.... [A] conflict
               may ... prevent an attorney from challenging the admission of
               evidence prejudicial to one client but perhaps favorable to
               another, or from arguing at the sentencing hearing the relative
               involvement and culpability of his clients in order to minimize
               the culpability of one by emphasizing that of another.


       Wheat v. United States, 486 U.S. 153, 160 (1988) (quoting Holloway, 435 U.S. at

       489-90). Such a conflict of interest may serve as a basis for an ineffective

       assistance claim. To establish ineffective assistance based on a conflict of

       interest arising from joint representation, a defendant who did not raise an

       objection to joint representation “at trial must demonstrate that an actual

       conflict of interest adversely affected his lawyer’s performance.” Latta v. State,

       743 N.E.2d 1121, 1127 (Ind. 2001) (quoting Cuyler v. Sullivan, 446 U.S. 335,

       348-49 (1980)). “[O]nce the defendant has demonstrated an actual conflict and


       Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020             Page 9 of 23
       an adverse effect on his lawyer’s performance, the prejudice prong of an

       ineffective assistance claim is presumed. 2 Id. (citing Strickland, 466 U.S. at 692).


[14]   Although in some cases joint representation may involve a potential for a

       conflict of interest, the Sixth Amendment’s right to effective counsel also

       encompasses the right to be represented by counsel of one’s choice. Id. (citing

       Powell v. Alabama, 287 U.S. 45, 53 (1932)).


                The right to counsel of choice has been described as an “essential
                component” of the Sixth Amendment right to counsel.... The
                right privately to retain counsel of choice derives from a
                defendant’s right to determine the type of defense he wishes to
                present. Lawyers are not fungible, and often the most important
                decision a defendant makes in shaping his defense is the selection
                of an attorney. In situations where a defendant is able to retain
                counsel privately “the choice of counsel rests in his hands, not in
                the hands of the state.”


       T.C.H., 714 N.E.2d at 1165-66 (quoting Barham v. State, 641 N.E.2d 79, 82 (Ind.

       Ct. App. 1994)). Thus, under some circumstances, a defendant may properly

       waive his or her right to be represented by counsel who is free from conflicting

       interests. Latta, 743 N.E.2d at 1127 (citing Ward v. State, 447 N.E.2d 1169,

       1172 (Ind. Ct. App. 1983)).




       2
        Although counsel may be subject to a conflict of interest from reasons other than joint representation, in
       Johnson v. State, 948 N.E.2d 331 (Ind. 2011), the Indiana Supreme Court observed that the special rules
       applying to conflict of interest have been applied by the U.S. Supreme Court only “where counsel is
       conflicted because he or she is actively representing multiple parties with conflicting interests.” Id. at 334-35.

       Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020                                   Page 10 of 23
[15]   Here, before Moser filed his appearances for Jones and his wife, Jones signed a

       written conflict-of-interest waiver, which he reaffirmed when he pled guilty.

       The State argues that because Jones waived any potential conflict of interest

       arising from Moser’s joint representation, Jones is precluded from raising an

       ineffective assistance of counsel claim based on a conflict of interest. The issue

       is not as settled as the State suggests, as shown by our supreme court’s

       examination of the issue in Latta, 743 N.E.2d 1121.


[16]   In that case, Latta and her husband were charged with the murder of their two-

       year-old son. She and her husband were tried jointly and were represented by

       the same counsel, whom they had retained. “Midway through the joint trial,

       the State moved for a mistrial, arguing, among other things, that the testimony

       of a trooper had given rise to a conflict of interest.” Id. at 1128. Latta’s

       attorney told the trial court that it was the Lattas’ choice for him to represent

       them. The trial court asked the Lattas whether their attorney had discussed the

       risks that could be involved in joint representation and whether they wanted

       him to represent both of them. Id. They answered affirmatively to both

       questions, and the trial court denied the State’s motion for mistrial. Id.


[17]   Latta was convicted and later petitioned for post-conviction relief on the ground

       she was denied effective assistance of counsel. One of her ineffective assistance

       claims was that the joint representation at trial created an actual conflict that

       adversely affected her defense. Although our supreme court did not decide the

       merits of Latta’s conflict-of-interest claim because it found her trial counsel

       ineffective on other grounds, the court opted to discuss the issue at length to

       Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020          Page 11 of 23
provide guidance in future cases. As to the effect of Latta’s waiver of her trial

attorney’s conflict of interest, our supreme court explained,


        Even if we were to conclude that Latta’s waiver of [her trial
        attorney’s] conflict was knowing and voluntary, the issue remains
        whether her initial waiver may serve to waive all future conflicts
        and any ineffective assistance of counsel claim based on these
        conflicts. Justice Marshall, concurring and dissenting in Cuyler,
        thought it impossible to waive all potential conflicts, especially
        where a waiver is obtained in the early stages of trial before it is
        feasible to contemplate all of the possible conflicts. 446 U.S. at
        354 n.1, 100 S. Ct. 1708. But the United States Supreme Court
        has given us no further clear guidance on this point.… Wheat also
        cited the “institutional interest” in a fair proceeding. Arguably
        the proper inference from Wheat is that this institutional interest
        justifies overriding the defendant’s choice of joint counsel but still
        permits a waiver to preclude a later claim of ineffective
        assistance. Wheat itself expressly reserved this issue for another
        day, as it noted, “without passing judgment on, the apparent
        willingness of Courts of Appeals to entertain ineffective-
        assistance claims from defendants who have specifically waived
        the right to conflict-free counsel.” 486 U.S. at 161-62, 108 S. Ct.
        1692.


        The post-Wheat federal circuit decisions have split on the
        question of whether a waiver eliminates further claims based on
        conflict. Compare United States v. Hall, 200 F.3d 962, 965-67 (6th
        Cir. 2000) (reversing conviction on direct appeal because of
        ineffective assistance of counsel due to conflict of interest even
        though the trial court had repeatedly warned defendant of
        conflict, and stating that the defendant’s waiver “does not bind
        the courts”), and United States v. Swartz, 975 F.2d 1042, 1049 (4th
        Cir. 1992) (a waiver obtained pursuant to Federal Rule of
        Criminal Procedure 44(c), which places a duty on the trial court
        to inform defendant of potential conflicts where defendant is

Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020          Page 12 of 23
                jointly represented, “may not serve to waive all conflicts of
                interest that arise throughout the course of that defendant’s
                criminal proceedings”), with United States v. Lowry, 971 F.2d 55,
                63-64 (7th Cir. 1992) (any ineffective assistance claim based on
                conflict of interest is barred where defendant knowingly and
                voluntarily waives conflict).


       Id. at 1129.


[18]   The Latta court then considered the issue confronting the trial court at Latta’s

       trial, noting that in Wheat, the United States Supreme Court held that the trial

       court should be given wide discretion in determining whether to accept or reject

       a waiver. 3 Id. at 1130 (citing 486 U.S. at 164). The Latta court agreed,

       indicating that “in evaluating whether the actual conflict or serious potential for

       conflict is sufficient to override the defendant’s express choice of counsel[,]” a

       trial court should make the necessary inquiry to assess “the defendant’s

       apprehension of the dangers of joint representation.” Id. The supreme court

       explained that “regardless of the ultimate resolution of the issue left open in

       Wheat, … the presumption of deference to the defendant’s choice is




       3
         One of the reasons that the trial court should be given wide discretion is the court’s institutional interest in
       fair trials. As we explained in T.C.H.,
              The [Wheat] Court noted that not only the interest of a criminal defendant but also the
              institutional interest in the rendition of just verdicts in criminal cases may be jeopardized by
              unregulated multiple representation. [486 U.S. at 160]. The [Wheat] Court further stated that
              the trial courts, when alerted by objection from one of the parties, have an independent duty to
              ensure that criminal defendants receive a trial that is fair and does not contravene the Sixth
              Amendment. Id. at 161. “Thus, where a court justifiably finds an actual conflict of interest,
              there can be no doubt that it may decline a proffer of waiver, and insist that defendants be
              separately represented.” Id. at 162.
       714 N.E.2d at 1164-65 (parallel citations omitted).

       Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020                                     Page 13 of 23
       strengthened by confidence that it is an informed and individual choice by the

       defendant.” Id.


[19]   As for the post-conviction court’s task, the Latta court stated:


               The first issue for the post-conviction court was whether, under
               these circumstances, it was within the trial court’s discretion to
               accept Latta’s waiver of conflict-free representation. We think
               the defendant’s waiver should be presumed valid, and the burden
               in post-conviction proceedings is on the defendant to prove
               otherwise. If there is evidence supporting the conclusion of an
               uninformed, or worse, improperly influenced waiver, the post-
               conviction court must assess the defendant’s appreciation of the
               risks. If knowing and voluntary, the waiver is at least entitled to
               a very strong presumption of validity, and may be conclusive,
               because it invokes her right to counsel of her choice. If the
               waiver does not preclude a subsequent claim of ineffective
               assistance, there remains the issue, as Cuyler put it, of whether
               “an actual conflict of interest adversely affected [the] lawyer’s
               performance.” Cuyler, 446 U.S. at 348-49, 100 S. Ct. 1708. If so,
               prejudice under Strickland is presumed.


       Id. at 1131.


[20]   Latta makes clear that in post-conviction proceedings, there is a presumption

       that a defendant’s waiver of conflict-free representation is valid, and the

       defendant bears the burden of rebutting that presumption. Here, at Jones’s

       post-conviction hearing, Moser testified that he explained the pitfalls of joint




       Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020        Page 14 of 23
       representation to Jones. 4 The transcript of Jones’s guilty plea hearing shows

       that Jones affirmed to the trial court that he had been informed that joint

       representation could present a “potential” conflict of interest, that he was

       waiving any “potential” conflict of interest pursuant to the waiver he had

       signed earlier, and that he was satisfied with Moser’s representation. Ex. Vol. at

       27.


[21]   Assuming, without deciding, that Jones’s conflict-of-interest waiver was valid,

       the issue remains whether that waiver bars Jones from challenging his

       conviction based on an actual conflict of interest that he alleges existed during

       discovery and plea negotiations. We observe that Latta was decided in 2001,

       and the United States Supreme Court has not spoken further on whether a

       defendant’s waiver of conflict-free representation precludes all future claims of

       ineffective assistance based on a conflict of interest. The federal cases cited by

       the State supporting its contention that a defendant’s knowing and intelligent

       waiver of the right to conflict-free representation bars any subsequent challenge

       to his or her conviction based on a conflict of interest were all decided before

       Latta. 5 There have not been any Indiana cases decided since Latta that have

       explored the waiver issue any further.




       4
         Jones notes that he testified at the post-conviction hearing that he did not receive any explanation of the
       pitfalls of dual representation, but the post-conviction court was not required to credit his testimony. Jones’s
       argument is merely a request to reweigh the evidence, which we must decline.
       5
         The State cites Lowry, 971 F.2d at 60, Gomez v. Ahitow, 29 F.3d 1128, 1135-36 (7th Cir. 1994), United States
       v. Martinez, 143 F.3d 1266, 1268-69 (9th Cir. 1998), Henderson v. Smith, 903 F.2d 534, 536 (8th Cir. 1990), and
       Duncan v. Alabama, 881 F.2d 1013, 1017 n.5 (11th Cir. 1989). The State also cites three cases from our sister

       Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020                                  Page 15 of 23
[22]   We are disinclined to issue a blanket holding that a conflict-of-interest waiver

       precludes all future claims of ineffective assistance based on an actual conflict of

       interest. Such an absolute bar seems ill-advised given the myriad of situations

       that joint representation could create a conflict of interest and the various

       circumstances under which a defendant might waive a conflict of interest. For

       example, Latta and this case present two very different situations. In Latta, the

       prosecutor moved for mistrial, arguing that the testimony of a witness created a

       conflict of interest. Latta was present to hear the testimony of the witness and

       the argument of the prosecutor. The trial court itself was aware of the precise

       conflict of interest and was able to question Latta about her wishes in light of

       the new development. 6 Here, Jones waived the potential for a conflict of

       interest at the onset of his criminal proceedings, and his case never went to trial

       because he pled guilty pursuant to a plea agreement. Although the trial court




       states but fails to articulate why we should follow them. See Dunlap v. People, 173 P.3d 1054, 1070 (Colo.
       2007) (“A defendant who validly waives the right to conflict-free counsel cannot later make a claim of
       ineffective assistance due to a conflict of interest.”); Ryan v. Eighth Judicial Dist. Ct., 168 P.3d 703, 710 (Nev.
       2007); State v. Demmerly, 722 N.W.2d 585, 590 (Wisc. Ct. App. 2006) (holding that when a defendant waives
       the right to conflict-free counsel, he “necessarily” waives the right to assert that his counsel was ineffective
       due to the alleged conflict except in rare, egregious circumstances).
       6
         We also note the protection afforded defendants in the federal criminal rules, for which there is no Indiana
       counterpart. Federal Rule of Criminal Procedure 44(c) provides,
              The court must promptly inquire about the propriety of joint representation and must personally
              advise each defendant of the right to effective assistance of counsel, including separate
              representation. Unless there is good cause to believe that no conflict of interest is likely to arise,
              the court must take appropriate measures to protect each defendant’s right to counsel.
       The trial court’s compliance with this rule bolsters an appellate court’s confidence that a defendant’s waiver
       of a conflict of interest is valid. For example, in Lowry, 971 F.2d 55, one of the cases cited by the State, the
       Seventh Circuit Court of Appeals noted that the defendant had waived two prior conflicts of interest at two
       prior hearings; there had been full compliance with Rule 44(c); the defendant clearly understood the dangers
       of counsel with a conflict, his rights, and his options; and he made a knowing and intelligent waiver; and
       therefore the defendant had forfeited any claim on that conflict of interest ground. Id. at 63-64.

       Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020                                    Page 16 of 23
       asked him to affirm his waiver at his guilty plea hearing, the trial court would

       not have been aware of any conflict of interest to the extent that the trial court

       in Latta was. Thus, notwithstanding Jones’s waiver of any potential conflict of

       interest, we opt to examine Jones’s claim under the Cuyler standard, that is,

       whether due to his joint representation, his attorney was presented with an

       actual conflict of interest that adversely affected his performance. 7


[23]   Jones asserts that the “actual conflict in this case arises from Moser’s

       representation of both [himself] and [his wife] on very serious charges arising

       from the same facts.” Appellant’s Br. at 15. However, as Jones himself

       acknowledges, “not every case of dual … representation creates a conflict of

       interest.” Id. (quoting Holleman v. State, 641 N.E.2d 638, 640 (Ind. Ct. App.

       1994), trans. denied). Jones’s overbroad assertion begs the question of what

       specific aspect(s) of this case introduced a conflict of interest into Moser’s joint

       representation. For example, a codefendant’s desire to testify against another

       codefendant would create a conflict of interest. Cf. T.C.H., 714 N.E.2d at 1167

       (concluding there was no actual conflict where none of the codefendants

       conveyed any desire to testify against the other codefendants in exchange for

       dismissal or reduction of charges). Here, the evidence shows that neither Jones

       nor Chauntel ever expressed any willingness to testify against each other. Tr.

       Vol. 2 at 21-22. In fact, it seems that they wanted to present a united front. Id.




       7
           The post-conviction court did not make any findings on this issue.


       Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020          Page 17 of 23
       Further, it was Jones’s express wish to protect Chauntel and do what was best

       for her. Id. at 22, 28. Jones contends that Moser’s loyalty to Chauntel

       prevented Moser from arguing to the prosecutor that Jones did not have more

       culpability than his wife, but that would have been contrary to Jones’s express

       wishes.


[24]   Jones also contends that Moser’s loyalty to Chauntel kept him from challenging

       the validity of the search warrant. 8 Given that Jones and Chauntel were

       married and lived together in the house targeted by the warrant, we fail to see

       how any challenge to the search warrant would have impacted their interests

       differently. Thus, any decision not to challenge the search warrant does not

       appear related to a conflict of interest. Rather, it appears that the decision was

       based on Moser’s knowledge that the prosecutor would not extend favorable

       plea offers once pretrial litigation commenced. Id. at 17. Accordingly, we

       conclude that Jones has failed to carry his burden to show that Moser’s joint

       representation was burdened by an actual conflict of interest that adversely

       affected his performance. Jones’s claim of ineffective assistance on this basis

       must fail.




       8
        We reject Jones unsupported assertion that if Moser “used even basic discovery tools like a deposition, the
       prosecutor would have withdrawn his offer to Chauntel.” Appellant’s Br. at 15.

       Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020                               Page 18 of 23
           Section 2 – Jones has failed to carry his burden to show or
            waived his claims that his attorney provided ineffective
                   assistance by advising him to plead guilty.
[25]   Jones next contends that Moser provided ineffective assistance by advising him

       to plead guilty to level 2 felony conspiracy to commit dealing in

       methamphetamine under the version of Indiana Code Section 35-48-4-1.1 that

       became effective July 1, 2014 (new version). Jones argues that he was entitled

       to be charged under the prior version of Section 35-48-4-1.1 that was in effect

       until June 30, 2014 (prior version). As initially charged, Jones was alleged to

       have committed his offenses between March 2014 and August 20, 2014, which

       included but was not limited to a time period when the prior version of the

       statute was in effect. Under the new version, dealing in methamphetamine is a

       level 2 felony if the amount involved was at least ten grams or at least five

       grams but less than ten grams and an enhancing circumstance applied. Under

       the prior version, dealing in methamphetamine was a class B felony and was

       elevated to a class A felony if the amount of the drug involved weighed three

       grams or more. Jones contends that he would have received a lighter sentence

       under the prior version.


[26]   Jones ignores that the dates alleged in the original charging information also

       included a time period when the new version was in effect. The amended

       charging information alleged that his criminal conduct was committed between

       July 1 and August 20, 2014. Jones was not entitled to be charged and

       sentenced under the prior version for criminal conduct that he engaged in after


       Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020        Page 19 of 23
       July 1, 2014. Furthermore, Jones’s argument that he would have received a

       lighter sentence under the prior version is without merit because it assumes that

       the State would have charged him with a class B felony. There is no support for

       that assumption. The prior version provided that dealing in methamphetamine

       in an amount greater than three grams was a class A felony, and he was

       originally charged with dealing more than that. If Jones had been charged with

       a class A felony, he would have faced a sentence of up to fifty years, as opposed

       to thirty years for the level 2 felony. Compare Ind. Code § 35-50-2-4 (2013)

       (providing sentencing range of twenty to fifty years for a class A felony) with

       Ind. Code § 35-50-2-4.5 (providing sentencing range of ten to thirty years for a

       level 2 felony).


[27]   Jones also maintains that Moser provided ineffective assistance by advising him

       to plead guilty to level 2 felony conspiracy to commit dealing in

       methamphetamine in an amount greater than ten grams because there was

       insufficient evidence of weight. However, the post-conviction court found that

       “Jones has not contested whether the State could prove that the agreement was

       to produce methamphetamine in an amount greater than ten grams.” Appealed

       Order at 4. Post-conviction claims that were not presented to the post-

       conviction court are not available for appellate review. Walker v. State, 843

       N.E.2d 50, 57 (Ind. Ct. App. 2006), trans. denied; see also Richardson v. State, 800

       N.E.2d 639, 647 n.4 (Ind. Ct. App. 2003) (holding that petitioner waived claim

       because it was not presented to post-conviction court), trans. denied (2004).




       Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020         Page 20 of 23
       Therefore, Jones has waived his claim that there was insufficient evidence of

       the weight of the methamphetamine.


[28]   Last, in a two-sentence paragraph, Jones argues that Moser told him that the

       prosecutor was threatening consecutive sentences if Jones did not accept the

       plea agreement. Jones asserts, “It was not possible for the trial court to impose

       consecutive sentences because Counts 1 and 3 were alternative theories of the

       same offense.” Appellant’s Br. at 19. Because Jones has not supported this

       argument with cogent reasoning and citations to authorities, this argument is

       waived. See Ind. Appellate Rule 46(A)(8)(a) (requiring that contentions in

       appellant’s brief be supported by cogent reasoning and citations to authorities,

       statutes, and the appendix or parts of the record on appeal); Casady v. State, 934

       N.E.2d 1181, 1190 (Ind. Ct. App. 2010) (concluding that defendant waived

       claim that trial court improperly admitted evidence by failing to cite rules of

       evidence and case law), trans. denied (2011).


[29]   Waiver notwithstanding, Jones’s argument is meritless. Count 1 alleged the

       offense of dealing in methamphetamine, and Count 3 alleged the offense of

       conspiracy to commit dealing in methamphetamine. In his reply brief, Jones

       argues that the “Indiana Double Jeopardy Clause prohibits a court from

       entering multiple convictions when there is a reasonable probability the actual

       evidence used to establish the essential elements of one offense were used for an

       additional challenged offense.” Appellant’s Reply Br. at 7-8 (citing Richardson

       v. State, 717 N.E.2d 32, 53 (Ind. 1999). He asserts that the allegations in both



       Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020        Page 21 of 23
       counts involved manufacturing methamphetamine over identical date ranges,

       and that a conviction could not have been entered for both counts.


[30]   As clearly explained in Coleman v. State, 952 N.E.2d 377 (Ind. Ct. App. 2011),


               [T]he conspiracy statute, Indiana Code Section 35-41-5-2, …
               contains elements that must be proven in a conspiracy case, and
               not in a case for the underlying offense: an agreement with
               another person with intent to commit a felony, and the
               commission of an overt act in furtherance of the agreement. ….
               Double jeopardy rules preclude a conviction for conspiracy and
               the underlying offense only when the same evidence is used to
               prove both the overt act committed in furtherance of the
               conspiracy and the commission of the underlying crime.
               Otherwise, a defendant may be convicted of both offenses.


       Id. at 382 (citations omitted). Here, the State alleged that the overt act

       committed in furtherance of the conspiracy to commit dealing in

       methamphetamine was that Smith provided Jones and his wife with lye, cold packs,

       lithium batteries, and pseudoephedrine and/or that Jones manufactured

       methamphetamine. Thus, to convict Jones of the conspiracy offense, the State

       could have relied on an overt act that was not the commission of the underlying

       offense, in which case Jones’s convictions for both counts would not have

       violated the prohibition against double jeopardy. Other than double jeopardy,

       Jones does not allude to any other ground that would preclude the imposition

       of consecutive sentences. Accordingly, we conclude that Jones has failed to

       carry his burden to show that Moser provided ineffective assistance by advising




       Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020            Page 22 of 23
       Jones that he could be convicted of both counts and sentenced to consecutive

       terms.


          Section 3 – Jones has waived his argument that his counsel
          provided ineffective assistance by failing to file a motion to
                         suppress the search warrant.
[31]   Jones also asserts that his counsel provided ineffective assistance by failing to

       file a motion to suppress the search warrant. The post-conviction court found

       that Jones did not allege a claim of ineffective assistance for failing to file a

       motion to suppress in his PCR petition and that he never amended his petition.

       Appealed Order at 2-3. Jones does not challenge these findings or even

       acknowledge that he did not raise this allegation in his PCR petition. We

       conclude that the issue is waived. See Ind. Post-Conviction Rule 1(8) (“All

       grounds for relief available to a petitioner under this rule must be raised in his

       original petition.”); Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001) (“Issues

       not raised in the petition for post-conviction relief may not be raised for the first

       time on post-conviction appeal.”).


[32]   Based on the foregoing, we affirm the denial of Jones’s petition for post-

       conviction relief.


[33]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020           Page 23 of 23
