MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               Feb 02 2016, 9:05 am
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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana
Borahm Kim                                               Jodi Kathryn Stein
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tyrone Tapp,                                             February 2, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         82A01-1504-PC-154
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable David D. Kiely,
Appellee-Respondent                                      Judge
                                                         The Honorable Kelli E. Fink,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1203-PC-7



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1504-PC-154 | February 2, 2016      Page 1 of 7
[1]   Tyrone Tapp appeals the denial of his petition for post-conviction relief, in

      which he claimed that his trial counsel provided him with ineffective assistance

      for failing to negotiate a plea agreement. Finding no error, we affirm.


                                                     Facts
[2]   In April 2010, the State charged Tapp with class B felony robbery, three counts

      of class D felony resisting law enforcement, and class A misdemeanor criminal

      recklessness. The State later filed an information alleging that Tapp was an

      habitual offender. Tapp secured the representation of Dennis Vowels, who had

      represented Tapp on at least two prior occasions in which he was eventually

      acquitted. The State offered no plea agreement and the case proceeded to trial.


[3]   Trial was held in April 2011 and the jury found Tapp guilty of class B felony

      robbery, two counts of class D felony resisting law enforcement, and class A

      misdemeanor criminal recklessness. The jury also determined that Tapp was an

      habitual offender. Following these verdicts, the trial court sentenced Tapp to a

      total sentence of forty years. Tapp appealed his conviction, arguing that the

      trial court should have dismissed the habitual offender allegation because he

      had not been arraigned on it. We affirmed in a memorandum decision, finding

      no reversible error as Tapp had been aware of the habitual offender allegation

      prior to trial despite not being arraigned. Tapp v. State, No. 82A05-1106-CR-

      275 (Ind. Ct. App. Jan. 17, 2012).


[4]   On June 30, 2014, Tapp filed an amended petition for post-conviction relief,

      arguing that Vowels had provided ineffective assistance by failing “to

      Court of Appeals of Indiana | Memorandum Decision 82A01-1504-PC-154 | February 2, 2016   Page 2 of 7
      communicate a favorable offer to plead to a B felony and dismiss the habitual

      offender enhancement.” Appellant’s App. p. 33. The petition elaborated:


                 While awaiting trial in jail, Tapp wrote 3 letters to his attorney,
                 Dennis Vowels, indicating his desire to plead guilty. However,
                 during a hearing in Tapp’s trial, Mr. Vowels admitted that he had
                 represented to the State that Tapp had no desire to plead guilty.[ 1]
                 Also, in the hearing, it was revealed that the State was proposing
                 an open plea to the B felony robbery with dismissal of the
                 remaining counts and the habitual offender enhancement. Mr.
                 Vowels never communicated this offer to Tapp.


      Id.


[5]   On December 10, 2014, the post-conviction court held a hearing on Tapp’s

      petition. Tapp, Vowels, and two Vanderburgh County prosecutors testified.

      On April 1, 2015, the post-conviction court issued findings of fact and

      conclusions of law, denying Tapp’s petition. The post-conviction court noted

      that Tapp had not presented sufficient evidence that any plea agreement had

      been offered by the State and, therefore, it could not find that Vowels was

      ineffective for failing to communicate an offer. Tapp now appeals.


                                       Discussion and Decision
[6]   The Sixth Amendment to the United States Constitution guarantees defendants

      in criminal cases the right to “effective assistance of competent counsel.” Lafler




      1
          Vowels testified in a hearing held on Tapp’s motion to dismiss the habitual offender charge.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1504-PC-154 | February 2, 2016             Page 3 of 7
      v. Cooper, 132 S.Ct. 1376, 1384 (2012). This right extends to the plea bargaining

      process. Id. A petitioner alleging that his counsel has provided him with

      ineffective assistance must first show that counsel’s “representation fell below

      an objective standard of reasonableness and that counsel made errors so serious

      that counsel was not functioning as ‘counsel’ guaranteed to the defendant by

      the Sixth Amendment.” Overstreet v. State, 877 N.E.2d 144, 152 (Ind. 2007)

      (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). A petitioner must

      also show that these errors were prejudicial, meaning that “there is a reasonable

      probability that, but for counsel’s unprofessional errors, the result of the

      proceeding would have been different.” Id.


[7]   “[I]n the ordinary criminal case defense attorneys have a duty to inform their

      clients of plea agreements proffered by the prosecution” and “a failure to do so

      constitutes ineffective assistance of counsel.” Dew v. State, 843 N.E.2d 556, 568

      (Ind. Ct. App. 2006) (citing Johnson v. Duckworth, 793 F.2d 898, 902 (7th Cir.

      1986)). Here, Tapp does not argue that Vowels failed to inform him of a plea

      agreement proffered by the prosecution because no such agreement was ever

      proffered. Instead, he argues that Vowels was ineffective for (1) failing to have

      meaningful discussions with Tapp about seeking a plea agreement and (2)

      misrepresenting Tapp’s desire to plead guilty to the State. Appellant’s Brief p.

      1.


[8]   We find that both of these arguments fail, as Tapp has not established that he

      was prejudiced by the alleged errors. In post-conviction proceedings, the

      petitioner has the burden to establish his grounds for relief by a preponderance

      Court of Appeals of Indiana | Memorandum Decision 82A01-1504-PC-154 | February 2, 2016   Page 4 of 7
       of the evidence. Ind. Post-Conviction Rule 1(5). To show prejudice here, Tapp

       would need to show that, but for Vowels’s unprofessional errors, the

       prosecution would have proffered a plea agreement with more favorable terms

       that Tapp would have accepted. No such showing has been made.


[9]    Tapp believes that he could have avoided the habitual offender finding in this

       case by entering into a plea agreement, arguing that “the State had a practice of

       dismissing the Habitual Offender in exchange for open pleas on all other

       counts.” Id. at 7. Vowels testified to this effect at the post-conviction hearing.

       PCR. Tr. 15. However, as the State points out, simply because something may

       have been the practice generally, does not mean that the practice would be

       followed in any particular case. Tapp presented no evidence indicating that he

       would have been offered a plea agreement in this case. In fact, the evidence

       indicated the opposite. Doug Brown, Vanderburgh County’s Chief Deputy

       Prosecutor at the time of Tapp’s case, testified that Tapp would not have been

       offered a plea agreement in this case given his extensive criminal history. Id. at

       33. Brown also disagreed with Vowels’s assertion that plea agreements

       dispensing with the habitual offender allegation were common and noted that,

       even if they were, one would not have been offered to Tapp in this case. Id. at

       35.


[10]   In his second argument, Tapp asserts that Vowels incorrectly informed the

       prosecution that Tapp was not interested in negotiating a plea agreement,

       thereby preventing any consideration of a plea agreement. However, a review

       of the record shows that Tapp mischaracterizes Vowels’s actions. While

       Court of Appeals of Indiana | Memorandum Decision 82A01-1504-PC-154 | February 2, 2016   Page 5 of 7
       testifying in a previous hearing, Vowels had the following exchange with

       Charles Berger, a Vanderburgh County prosecutor with whom Vowels had

       spoken regarding Tapp’s case:


               Berger:          . . . [D]o you recall a discussion where I said is this
                                defendant going to plead guilty?


               Vowels:          Yes I know, we did do that, we had that
                                conversation.


               Berger:          And you indicated to me that it was very unlikely
                                because he’d already beaten a couple of other cases,
                                and he was set on trying this case.


               Vowels:          I think I used the words there’s no way he’s going to
                                plead guilty.


       State’s Ex. C p. 278.


[11]   Tapp attempts to present this exchange as though the two were discussing the

       possibility of a favorable plea agreement rather than simply a plea of guilty to

       the charges. However, there is no indication from the language used that this

       was the case. Vowels’s testimony at the post-conviction hearing clarifies that he

       and Berger were discussing the possibility of Tapp pleading guilty to the

       charges. He testified that


               Mr. Berger had an overwhelmingly strong case and he likes to try
               jury trials and I’ll just say this, I don’t have a direct memory of it,
               but my conclusion is that Mr. Berger told me he was going to try



       Court of Appeals of Indiana | Memorandum Decision 82A01-1504-PC-154 | February 2, 2016   Page 6 of 7
               this case or my client could just plead guilty with no
               recommendation, that was it.


       PCR Tr. p. 12-13. Therefore, the evidence only suggests that Vowels said that

       Tapp was not interested in pleading guilty to the charges, and Tapp’s claim to

       the contrary is a mischaracterization.


[12]   In sum, Tapp’s claim of ineffective assistance of counsel fails, as he did not

       present sufficient evidence that he was prejudiced as a result of any alleged error

       on the part of Vowels. All of the evidence as to whether Tapp would have been

       offered a plea agreement in this case indicated that he would not have been.

       Although we may have had a different case had Vowels informed the

       prosecution that Tapp was not interested in a favorable plea agreement, the

       evidence fails to suggest that this is what occurred here.


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


       Bradford, J., and Pyle, J., concur.




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