MEMORANDUM DECISION
                                                              Jul 31 2015, 9:09 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
John Andrew Goodridge                                     Gregory F. Zoeller
Evansville, Indiana                                       Attorney General of Indiana
                                                          Chandra K. Hein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Danny Bailey,                                             July 31, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          82A01-1501-CR-28
        v.                                                Appeal from the Vanderburgh
                                                          Superior Court
State of Indiana,                                         The Honorable Mary Margaret
                                                          Lloyd, Judge
Appellee-Plaintiff
                                                          Cause No. 82D02-1006-FA-569




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1501-CR-28 | July 31, 2015      Page 1 of 5
[1]   Danny Bailey appeals the post-conviction court’s denial of his petition for post-

      conviction relief. Finding no error, we affirm.


                                                     Facts
[2]   On March 31, 2011, a jury found Bailey guilty of class A felony child

      molesting, class C felony child molesting, and class B felony incest. Bailey was

      sentenced to forty years on the first count, six years on the second count, and

      ten years on the third count. The trial court ordered these sentences to run

      concurrently, resulting in a forty-year executed term. Bailey appealed his

      sentence, and this Court affirmed in a memorandum decision. Bailey v. State,

      No. 82A05-1108-CR-398, 2012 WL 1069016 (Ind. Ct. App. Mar. 29, 2012).


[3]   Following this decision, Bailey filed a petition for post-conviction relief in

      which he alleged that he had been denied effective assistance of counsel. Bailey

      alleged that his trial counsel had never informed him that, prior to trial, the

      State had offered Bailey a plea that would have resulted in a term of fifteen

      years. The post-conviction court held a hearing on October 24, 2014.


[4]   Bailey called his trial attorney, Kurt Schnepper, to testify at the hearing.

      Schnepper testified that the State initially offered a plea agreement with a

      sentence of forty years. He testified that he discussed this plea with Bailey but

      did not recommend that Bailey accept it. Schnepper further testified that the

      State offered a second plea agreement, this time with a sentence of fifteen years.

      In regard to this plea offer, Schnepper testified that while he did not have a

      specific recollection of communicating the offer to Bailey, it was his practice to

      Court of Appeals of Indiana | Memorandum Decision 82A01-1501-CR-28 | July 31, 2015   Page 2 of 5
      always communicate plea offers to his clients. Following the hearing, the post-

      conviction court denied Bailey’s petition for post-conviction relief. Bailey now

      appeals.


                                   Discussion and Decision
[5]   Bailey argues that the evidence before the post-conviction court indicated that

      Schnepper failed to engage in meaningful plea negotiations and, therefore, the

      post-conviction court erred in determining that Bailey had not been denied

      effective assistance of counsel. A party appealing a post-conviction court’s

      denial of a petition for post-conviction relief “must establish that the evidence,

      as a whole, unmistakably and unerringly points to a conclusion contrary to the

      post-conviction court’s decision.” Ben-Yisrayl v. State, 738 N.E.2d 253, 258

      (Ind. 2000). We accept the post-conviction court’s findings of fact unless they

      are clearly erroneous. Id. We examine only the probative evidence and the

      reasonable inferences drawn therefrom that support the post-conviction court’s

      judgment and we do not reweigh the evidence or judge the credibility of the

      witnesses. Bigler v. State, 732 N.E.2d 191, 194 (Ind. Ct. App. 2000).


[6]   To establish a claim for post-conviction relief alleging a violation of the Sixth

      Amendment right to effective assistance of counsel, a petitioner must meet the

      requirements set forth in Strickland v. Washington, 466 U.S. 668 (1984). The

      petitioner must show that (1) “counsel’s representation fell below an objective

      standard of reasonableness” and (2) that “the deficient performance prejudiced

      the defense.” Id. at 687-88. A petitioner establishes prejudice by showing “that


      Court of Appeals of Indiana | Memorandum Decision 82A01-1501-CR-28 | July 31, 2015   Page 3 of 5
      there is a reasonable probability that, but for counsel’s unprofessional errors, the

      result of the proceeding would have been different.” Id. at 694. It is well

      established that “criminal defense attorneys have a duty to inform their clients

      of plea agreements proffered by the prosecution, and that failure to do so

      constitutes ineffective assistance of counsel under the sixth and fourteenth

      amendments.” Dew v. State, 843 N.E.2d 556, 568 (Ind. Ct. App. 2006).


[7]   On appeal, Bailey reiterates arguments made before the post-conviction court.

      Bailey argues that Schnepper failed to adequately inform him of the details of

      the State’s original forty-year offer and that Schnepper entirely failed to inform

      him of the State’s subsequent fifteen-year offer. These are both issues of fact.


[8]   Bailey points to the testimony of his wife, Georgette, who testified at the post-

      conviction hearing that Schnepper had not informed Bailey of the second offer.

      She also testified that Bailey was not able to inform her of any of the details of

      the initial offer, which Bailey believes indicates that this offer was never

      adequately communicated.


[9]   However, the post-conviction court noted that Schnepper’s testimony

      contradicted Georgette’s. It noted that Schnepper testified that he showed

      Bailey the initial offer and discussed it with him. Appellant’s Br. p. 30. It also

      noted that, as to the second offer, Schnepper testified that he “wouldn’t have

      gone through all that trouble to get the offer and then hide that from [his] client

      and not discuss it with him.” Tr. p. 20-21. Schnepper testified that it was his




      Court of Appeals of Indiana | Memorandum Decision 82A01-1501-CR-28 | July 31, 2015   Page 4 of 5
       general practice to meet with the prosecutor before trial to discuss any final plea

       offer. Schnepper testified:

               Schnepper:       I’m not going to take a class A felony to trial without
                                presenting that final offer to the client and discussing it
                                with him at length.
               Counsel:         Is it fair to say that’s your general practice?
               Schnepper:       Yes.
               Counsel:         And do you have any reason to believe why you
                                wouldn’t have done that here?
               Schnepper:       No, I just don’t have the specific recollection of whether
                                that was at the courthouse or at my office . . . .

       Tr. p. 21.


[10]   The post-conviction court noted that it had been presented with contradictory

       testimony and that it was left “to decide which of these contradictory versions

       of events carries the day.” Appellant’s Br. p. 31. The post-conviction court

       concluded that “given the totality of the witnesses’ testimony, the Court can

       only conclude that Attorney Schnepper did communicate the offers.” Tr. p. 32.

       This conclusion is supported by the testimony of Schnepper and is, therefore,

       not clearly erroneous. On appeal, we will not reweigh the evidence or judge the

       credibility of the witnesses to reach a contrary conclusion.


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


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1501-CR-28 | July 31, 2015     Page 5 of 5
