MEMORANDUM DECISION
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                            FILED
the defense of res judicata, collateral                            Jun 09 2017, 9:44 am
estoppel, or the law of the case.                                       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

Vickie Yaser                                             J.T. Whitehead
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Charlie L. Spencer, Jr.,                                 June 9, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         20A03-1612-PC-2845
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Stephen R.
Appellee-Respondent.                                     Bowers, Judge
                                                         Trial Court Cause No.
                                                         20D02-1407-PC-22



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1612-PC-2845 | June 9, 2017         Page 1 of 16
                                          Case Summary
[1]   On August 16, 2013, Appellee-Respondent the State of Indiana (the “State”)

      charged Appellant-Petitioner Charlie L. Spencer, Jr. under Cause Number

      20D02-1308-FD-884 (“Cause No. FD-884”) with Class D felony auto theft.

      The State also charged Spencer under Cause Number 20D02-1307-FC-152

      (“Cause No. FC-152”) with Class C felony carrying a handgun without a

      license with a prior conviction within fifteen years, Class D felony pointing a

      firearm at another person, and Class A misdemeanor carrying a handgun

      without a license.


[2]   Spencer subsequently pled guilty to Class D felony auto theft under Cause No.

      FD-884 and Class C felony carrying a handgun without a license under Cause

      No. FC-152. In exchange for Spencer’s guilty plea, the State agreed to dismiss

      the remaining charges filed under Cause No. FC-152. The trial court accepted

      Spencer’s guilty plea and sentenced him to an aggregate term of eight years.

      Spencer did not challenge his sentence on direct appeal.


[3]   Spencer subsequently filed a petition seeking post-conviction relief (“PCR”),

      arguing that he suffered ineffective assistance of trial counsel. Following an

      evidentiary hearing on Spencer’s petition, the post-conviction court determined

      that Spencer had failed to establish that he suffered ineffective assistance of trial

      counsel. Spencer challenges this determination on appeal. Concluding that

      Spencer has failed to prove that he suffered ineffective assistance of trial

      counsel, we affirm.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1612-PC-2845 | June 9, 2017   Page 2 of 16
                            Facts and Procedural History
[4]   In 2008, Spencer was convicted of felony possession of a controlled substance

      in Cook County, Illinois. On June 17, 2013, Spencer knowingly possessed a

      handgun for which he did not have a license. On June 28, 2013, Spencer

      knowingly exerted control over a vehicle belonging to Gary Edwards. At the

      time, Spencer knew that he did not have permission to control the vehicle and

      intended to deprive Edwards of use of the vehicle.


[5]   On August 16, 2013, the State charged Spencer under Cause No. FD-884 with

      Class D felony auto theft. The State also charged Spencer under Cause No.

      FC-152 with Class C felony carrying a handgun without a license with a prior

      conviction within fifteen years, Class D felony pointing a firearm at another

      person, and Class A misdemeanor carrying a handgun without a license.


[6]   Spencer subsequently pled guilty to Class D felony auto theft under Cause No.

      FD-884 and Class C felony carrying a handgun without a license under Cause

      No. FC-152. In exchange for Spencer’s guilty plea, the parties agreed that the

      executed portion of Spencer’s sentence would not exceed eight years. The State

      also agreed to dismiss the remaining charges filed under Cause No. FC-152.

      The State further agreed that unrelated charges filed under a different cause

      number would be dismissed.


[7]   During the guilty plea hearing, the trial court engaged in the following

      exchange with Spencer regarding his mental capacity:



      Court of Appeals of Indiana | Memorandum Decision 20A03-1612-PC-2845 | June 9, 2017   Page 3 of 16
        THE COURT: Sir have you ever been treated for any mental
        illness or do you now suffer from a mental or emotional
        disability?

        DEFENDANT: Yes sir.

        THE COURT: Uh, tell me more about that.

        DEFENDANT: Uh, I was – I was in learning disability class all
        my life.

        THE COURT: Other than those learning disabilities do you
        suffer from any uh, mental illness or any condition that would
        affect your ability to understand what we’re doing today in court?

        DEFENDANT: Yes sir.

        THE COURT: What is that?

        DEFENDANT: Uh, I don’t understand a lot of stuff.

        THE COURT: Okay. Have you ever been diagnosed with a
        mental illness?

        DEFENDANT: Yes.

        THE COURT: What was that diagnosis, if you know?

        DEFENDANT: Uh, I don’t remember sir.

        THE COURT: Did you receive treatment for that diagnosis?




Court of Appeals of Indiana | Memorandum Decision 20A03-1612-PC-2845 | June 9, 2017   Page 4 of 16
         DEFENDANT: Uh, I was in – I was in Hargrove[1] in Chicago.

         THE COURT: Okay. As you sit here today is your mind clear?

         DEFENDANT: No sir.

         THE COURT: Okay. What seems to be the problem today?

         DEFENDANT: I don’t – I don’t understand a lot of this.

         THE COURT: Well it’s very important that you understand
         what we are doing today. I’m going to go forward but it’s very
         important that any time you do not understand something that I
         tell you that you let me know or that you stop me and give you –
         I’ll give you the opportunity to speak with [trial counsel] to make
         sure that you do understand what you are doing today.

         DEFENDANT: Yes sir.

         THE COURT: Can you do that for me?

         DEFENDANT: Yes sir.

         THE COURT: Are you now under the influence of alcohol or
         any drugs that would affect your understanding of these
         proceedings?

         DEFENDANT: No sir.

         THE COURT: Are you taking any medication of any kind?

         DEFENDANT: No sir.




1
 While Spencer reported that he was treated at “Hargrove” it appears that the hospital is actually called
“Hartgrove Behavioral Health System.” See hartgrovehospital.com (last visited May 24, 2017).

Court of Appeals of Indiana | Memorandum Decision 20A03-1612-PC-2845 | June 9, 2017              Page 5 of 16
              THE COURT: Are you suppose [sic] to be taking any
              medication of any kind?

              DEFENDANT: Yes sir.

              THE COURT: What medication are you supposed to be taking,
              if you know?

              DEFENDANT: I forgot it.

              THE COURT: Okay. Before the Court can accept your plea of
              guilty I’ve got to be satisfied that you fully understand your
              Constitutional rights, that your plea of guilty has been made
              freely and voluntarily and that you are in fact guilty of the offense
              that you are pleading guilty to.

              I’ll need to ask you some questions and take testimony. If at any
              time you do not understand the words I use or the questions I ask
              will you stop me immediately and let me know that?

              DEFENDANT: Yes sir.

              THE COURT: I also want you to understand you may speak
              with [trial counsel] at any time during this process and before
              answering any of my questions. Are we clear so far?

              DEFENDANT: Yes sir.


      Exhibits Vol. 3 Amd., pp. 10-12.


[8]   On November 12, 2013, the trial court accepted Spencer’s guilty plea and

      conducted a sentencing hearing. During this hearing, Spencer’s counsel made

      the following statement regarding Spencer’s mental capacity:


      Court of Appeals of Indiana | Memorandum Decision 20A03-1612-PC-2845 | June 9, 2017   Page 6 of 16
              It would be the easiest thing and perhaps the most convenient
              thing to simply sentence him to the Department of Corrections
              and incapacitate him for as long as possible, but I fear in doing so
              that would simply be to put a band-aid on a situation that can be
              healed.

              Mr. Spencer is at an age where he’s still impressionable. Uhm,
              he, as the Court can see from the PSI, has not had much in the
              way of a formal education. He’s made it through 10th grade, has
              never acquired his GED. I believe he does have some mental
              health difficulties. He has some difficulty in understanding.
              Uhm, but he’s a person who is certainly capable of being more
              than he has been up to this point.


      Exhibits Vol. 3 Amd., pp. 31-32. The parties also discussed Spencer’s Pre-

      Sentence Investigation Report (“PSI”), which indicated that Spencer “received

      mental health treatment for five months in 2007 at Hargrove [sic] Hospital in

      Zion, Illinois. He stated, ‘They just said I had problems. My auntie took me

      there because she said I was trying to hurt myself.’” Exhibits Vol. 4

      Confidential, p. 14. At the conclusion of the sentencing hearing, the trial court

      sentenced Spencer to an aggregate term of eight years. Spencer did not

      challenge his sentence on direct appeal.


[9]   On July 9, 2014, Spencer filed a pro-se PCR petition. Spencer, by counsel, filed

      an amended PCR petition on October 13, 2015. In this amended petition,

      Spencer claimed that he received ineffective assistance from his trial counsel.

      On November 28, 2016, the post-conviction court issued an order denying

      Spencer’s petition. This appeal follows.



      Court of Appeals of Indiana | Memorandum Decision 20A03-1612-PC-2845 | June 9, 2017   Page 7 of 16
                                  Discussion and Decision
[10]   Post-conviction procedures do not afford the petitioner with a super-appeal.

       Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a

       narrow remedy for subsequent collateral challenges to convictions, challenges

       which must be based on grounds enumerated in the post-conviction rules. Id.

       A petitioner who has been denied post-conviction relief appeals from a negative

       judgment and as a result, faces a rigorous standard of review on appeal. Dewitt

       v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942

       (Ind. Ct. App. 1999), trans. denied.


[11]   Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,

       745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his

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

       Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition,

       a petitioner must convince this court that the evidence, taken as a whole, “leads

       unmistakably to a conclusion opposite that reached by the post-conviction

       court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without

       conflict and leads to but one conclusion, and the post-conviction court has

       reached the opposite conclusion, that its decision will be disturbed as contrary

       to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied.

       The post-conviction court is the sole judge of the weight of the evidence and the

       credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

       We therefore accept the post-conviction court’s findings of fact unless they are

       clearly erroneous but give no deference to its conclusions of law. Id.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1612-PC-2845 | June 9, 2017   Page 8 of 16
                               Ineffective Assistance of Counsel
[12]   The right to effective counsel is rooted in the Sixth Amendment to the United

       States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The

       Sixth Amendment recognizes the right to the assistance of counsel because it

       envisions counsel’s playing a role that is critical to the ability of the adversarial

       system to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S.

       668, 685 (1984)). “The benchmark for judging any claim of ineffectiveness

       must be whether counsel’s conduct so undermined the proper function of the

       adversarial process that the trial court cannot be relied on as having produced a

       just result.” Strickland, 466 U.S. at 686.


[13]   A successful claim for ineffective assistance of counsel must satisfy two

       components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first

       prong, the petitioner must establish that counsel’s performance was deficient by

       demonstrating that counsel’s representation “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. We recognize that

       even the finest, most experienced criminal defense attorneys may not agree on

       the ideal strategy or most effective way to represent a client, and therefore,

       under this prong, we will assume that counsel performed adequately and defer

       to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585

       (Ind. 2002). Isolated mistakes, poor strategy, inexperience, and instances of

       bad judgment do not necessarily render representation ineffective. Id.



       Court of Appeals of Indiana | Memorandum Decision 20A03-1612-PC-2845 | June 9, 2017   Page 9 of 16
[14]   Under the second prong, the petitioner must show that the deficient

       performance resulted in prejudice. Reed, 866 N.E.2d at 769. Again, a petitioner

       may show prejudice by demonstrating that there is “a reasonable probability

       (i.e. a probability sufficient to undermine confidence in the outcome) that, but

       for counsel’s errors, the result of the proceeding would have been different.” Id.

       A petitioner’s failure to satisfy either prong will cause the ineffective assistance

       of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently,

       “[a]lthough the two parts of the Strickland test are separate inquires, a claim

       may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031

       (Ind. 2006) (citing Williams, 706 N.E.2d at 154).


[15]   Spencer contends that his trial counsel provided ineffective assistance by failing

       to present available mitigating evidence at sentencing. Specifically, Spencer

       argues that his trial counsel


               did nothing to obtain evidence of Spencer’s educational or
               psychological background. Records that would have been
               available in 2013 show that Spencer has a low IQ, and was
               diagnosed as mildly mentally retarded and severely deficient in
               primary care, legal, social and educational skills. Testimony
               and/or letters that would have been available in 2013 would have
               informed the court of Spencer’s premature birth to a drug-
               addicted mother. Information available in a widely circulated
               newspaper and a commonly relied upon psychiatric manual
               would have advised the court of the consequences of Spencer’s
               history and intellectual disability. Spencer’s criminal behaviors
               could have been contextualized.

               Counsel’s lack of preparation and superficial speech at sentencing
               deprived the court of facts that would have provided insight into

       Court of Appeals of Indiana | Memorandum Decision 20A03-1612-PC-2845 | June 9, 2017   Page 10 of 16
               conditions that contributed to Spencer’s criminal behavior and
               warranted a less severe punishment.


       Appellant’s Br. pp. 20-21. Spencer further argues that his trial counsel’s

       presentation “gave the [trial] court only vague ideas about Spencer’s life and

       characteristics, certainly not ‘the fullest information possible’ as was his duty[.]”

       Appellant’s Br. p. 22. For its part, the State contends that Spencer’s trial

       counsel, which did present some evidence relating to Spencer’s limited mental

       capacity, did not provide ineffective assistance.


[16]   Spencer claims that the trial court’s concern with his criminal history was based

       on a lack of information because the trial court “through no fault of its own, did

       not know that Spencer’s abilities to reason, plan and learn from experience

       were compromised by his low intellect” and that his mental capacity makes him

       “more vulnerable to acting impulsively and without regard for consequences.”

       Appellant’s Br. pp. 24, 25. Spencer also claims that it was irrelevant that he

       was not incompetent at the time he committed the crimes at issue but argues

       that although not incompetent, his mental capacity should have been found at

       sentencing to signal a lesser culpability. Thus, Spencer alleges that his trial

       counsel’s failure to provide more detailed information relating to his mental

       capacities resulted in deficient performance and that he was prejudiced by said

       deficient performance.


[17]   In denying Spencer’s PCR petition, the post-conviction court made the

       following factual findings:


       Court of Appeals of Indiana | Memorandum Decision 20A03-1612-PC-2845 | June 9, 2017   Page 11 of 16
        11. The Petitioner argues that trial counsel failed to properly
        investigate his mental health history and to recognize, investigate
        and argue the impact of the Petitioner’s level of intellectual
        functioning. The testimony at the hearing is undisputed that the
        Petitioner is mildly mentally retarded with an IQ of 70. It
        appears from the Presentence Investigation Report that the
        Petitioner completed 10th grade at Marshall High School in
        Zion, Illinois. The Presentence Investigation Report also
        disclosed that the Petitioner received mental health treatment for
        five (5) months in 2007 at Hargrove [sic] Hospital in Zion,
        Illinois.

        12. The unrebutted testimony at the hearing further indicates the
        Petitioner participated in special education classes. The guilty
        plea transcript reflects that the Court was aware of the
        Petitioner’s difficulties with reading and writing, and that he had
        not graduated from high school.

        13. The Petitioner’s mother testified that she attempted to
        contact trial counsel. Trial counsel was unable to testify based
        upon his limited notes and even more limited recollection,
        whether he had ever made contact with the Petitioner’s family.
        Trial counsel did not seek to obtain either mental health records
        or educational records with respect to the Petitioner.

        14. Trial counsel did not seek a full sentencing hearing and did
        not call any witnesses on behalf of the Petitioner at sentencing.
        The Court notes that full sentencing hearings are rarely requested
        by attorneys in similar cases in Elkhart Superior Court 2.

        15. Trial counsel testified that he saw no reason to seek a
        competency determination with respect to the Petitioner.
        Nothing in the record suggests that a competency evaluation was
        called for in this case.

        16. The plea agreement in this case, which the Court reluctantly
        accepted, limited the executed sentence at the time of the original

Court of Appeals of Indiana | Memorandum Decision 20A03-1612-PC-2845 | June 9, 2017   Page 12 of 16
        sentencing to no more than eight (8) years. Had the Petitioner
        been sentenced on all pending charges and been given the
        maximum sentence for each he faced a maximum exposure of
        seventeen (17) years at the Indiana Department of Correction.

        17. With respect to the two felonies covered by the plea
        agreement the Petitioner’s total exposure was to eleven (11) years
        at the Indiana Department of Correction.

        18. The Petitioner received less than the maximum sentence on
        both charges. Six (6) years rather than the maximum of eight (8)
        years on the handgun offense and two (2) years rather than three
        (3) years on the auto theft offense.

        19. Trial counsel argued that the Petitioner should be given a
        lesser sentence due to his limited education and history of having
        been hospitalized approximately six years before the commission
        of the offenses for which he was being sentence.

        20. The sentencing transcript reflects that the Court was
        particularly bothered by the extent of the Petitioner’s criminal
        record. That record included a felony for which the Petitioner
        had been sent to prison in Illinois, seven misdemeanors
        (including a battery) and a number of violations of probation.
        The record also reflects that that Petitioner not only possessed the
        handgun but also produced the handgun and pointed it at
        someone. The presentence investigation also reflected a number
        of encounters with the criminal justice system in Cook County,
        Illinois, for which complete information about the disposition of
        the offense was not available.




Court of Appeals of Indiana | Memorandum Decision 20A03-1612-PC-2845 | June 9, 2017   Page 13 of 16
Appellant’s App. Vol. II, pp. 62-63.2 Based on these findings, the post-

conviction court concluded as follows:


        4. The medical records and other materials submitted by
        Petitioner give a more complete picture of the Petitioner’s
        limitations than the argument made by trial counsel at the time of
        sentencing. But nothing in those records contradicts the concerns
        addressed by the court in finding aggravating and mitigating
        circumstances. It is obvious from the record that the court’s chief
        concern was the Petitioner’s criminal record, particularly the fact
        that the defendant had a history of violations of probation, and
        the fact that he committed one of the offenses for which he was
        being sentenced while on bond for the other. Moreover, the
        treatment records and other information presented at the hearing
        on the petition for post conviction relief do not even remotely
        suggest that the Petitioner was incompetent at the time of the
        subject offenses or at the time of sentencing. Neither do those
        records address Petitioner’s practical level of functioning.

        5. The sentencing hearing transcript also reveals that the court
        was open to a modification of the Petitioner’s sentence to a
        community corrections placement if he demonstrated good
        behavior in the Department of Correction and took advantage of
        educational opportunities during his incarceration.

        6. The performance of counsel must be evaluated based upon the
        circumstances at the time of the representation, not with the
        benefit of hindsight. The efforts of trial counsel resulted in a



2
   We note that in challenging the denial of his PCR petition, Spencer inaccurately claims that the post-
conviction court found that the sentence imposed by the trial court was less than that sought by the
State. Review of the post-conviction court’s findings, however, reflects that contrary to Spencer’s claim,
the post-conviction court found that the sentence imposed was less than Spencer’s maximum potential
exposure had his guilty plea not limited the sentence to eight years, not that the eight-year sentence was
less than that requested by the State.



Court of Appeals of Indiana | Memorandum Decision 20A03-1612-PC-2845 | June 9, 2017          Page 14 of 16
               sentence within normal limits, and less than the sentence sought
               by the State. There is no evidence of prejudice to the Petitioner.
               Nor is there any evidence before the Court as to the prevailing
               norm for performance by counsel handling a case involving Class
               D and Class C felony charges. Given the limited exposure under
               the terms of the plea agreement and counsel’s familiarity with the
               attitude of the Court, there is no objective basis for concluding
               that counsel should have obtained additional mental health or
               educational records before sentencing. Although better
               communication with Petitioner’s family would have constituted
               better representation, that is not the same as saying that trial
               counsel’s performance was inadequate. The Petitioner simply
               has not met his burden of proof, even as to the “deficient
               performance” prong of his argument, let alone the “prejudice”
               prong.


       Appellant’s App. Vol. II, pp. 65-66.


[18]   Upon review of the record presented on appeal, we agree with the post-

       conviction court’s conclusion that while the evidence presented during the post-

       conviction proceedings relating to Spencer’s mental capacity provided a more

       detailed look at Spencer’s mental capacity, the evidence was consistent with the

       evidence presented to the trial court during the guilty plea and sentencing

       hearings. The trial court was made aware of the fact that Spencer (1) suffered

       from a learning disability, (2) had previously been hospitalized and treated for

       mental illness, and (3) continued to suffer certain cognitive limitations as

       evidence by his struggle to understand “a lot of stuff.” Ex. Vol. 3 Amd., p. 10.

       We also agree with the post-conviction court’s conclusion that even if trial

       counsel had offered the additional evidence which Spencer now claims should

       have been presented during the sentencing hearing, such evidence would not

       Court of Appeals of Indiana | Memorandum Decision 20A03-1612-PC-2845 | June 9, 2017   Page 15 of 16
       likely have affected the sentence imposed by the trial court as it did not support

       a determination that Spencer was incompetent or suffering from mental illness

       at the time he committed the offenses at issue. As such, like the post-conviction

       court, we conclude that Spencer has failed to prove that he was prejudiced by

       trial counsel’s allegedly deficient performance. Spencer, therefore, has failed to

       meet his burden of proof on appeal as he has failed to convince us that the

       evidence, taken as a whole, “leads unmistakably to a conclusion opposite that

       reached by the post-conviction court.” Stevens, 770 N.E.2d at 745.


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


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1612-PC-2845 | June 9, 2017   Page 16 of 16
