MEMORANDUM DECISION                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),                                   Nov 07 2016, 9:19 am

this Memorandum Decision shall not be                                         CLERK
                                                                          Indiana Supreme Court
regarded as precedent or cited before any                                    Court of Appeals
                                                                               and Tax Court
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
Joanna Green                                            Justin F. Roebel
Deputy Public Defender                                  Deputy Attorney General
Indianapolis, Indiana                                   Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Theodore T. Schwartz,                                   November 7, 2016
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        02A03-1602-PC-279
        v.                                              Appeal from the
                                                        Allen Superior Court
State of Indiana,                                       The Honorable
Appellee-Respondent.                                    Frances C. Gull, Judge
                                                        Trial Court Cause No.
                                                        02D06-1109-PC-116



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016            Page 1 of 27
[1]   Theodore T. Schwartz (“Schwartz”) appeals the post-conviction court’s partial

      denial of his petition for post-conviction relief. On appeal, he raises the

      following consolidated, restated, and reordered issues:


              I. Whether Schwartz received ineffective assistance of both trial
              and appellate counsel; and


              II. Whether Schwartz entered his guilty plea knowingly,
              intelligently, and voluntarily.


[2]   We affirm.1


                                   Facts and Procedural History
[3]   The facts supporting Schwartz’s convictions as set forth by this court in an

      unpublished memorandum decision on his direct appeal are as follows:


              On August 19, 2009, Schwartz escaped from the Berne Police
              Station. He went to J.H.’s house in Allen County where he had
              previously done restoration work on her barn. Schwartz parked
              the car he was driving behind J.H.’s barn and broke into her
              house. When J.H. returned home from work at 6:15 p.m., she
              unlocked the door, and Schwartz accosted her. Schwartz
              grabbed J.H. and told her to give him money. J.H. told Schwartz
              her money was in her car, and he led her outside. J.H. gave
              Schwartz the money from her purse. When Schwartz tried to get
              J.H. to go back inside, a struggle ensued. Schwartz struck J.H. in
              the face, causing her head to go through the glass window. He




      1
       We commend the post-conviction relief court on its thorough findings, which greatly facilitated our
      appellate review.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016          Page 2 of 27
              also placed his hands on J.H.’s throat, causing her to
              momentarily stop breathing.


              Schwartz forced J.H. back into the house, retrieved a knife from
              the kitchen, and forced her upstairs. Schwartz cut off some of
              J.H.’s clothing with the knife, fondled her, forced her to perform
              oral sex on him, and performed oral sex on her. Schwartz also
              forced J.H. to have intercourse with him. At one point, Schwarz
              put a pillow over J.H.’s head and tied a bandana around her
              mouth to keep her from screaming. J.H. believed she was going
              to die. After the sexual assault, Schwartz attempted to tie up
              J.H. with a belt and the reins from a horse bridle. He also tried
              to lock her in a closet.


              In the meantime, J.H.’s mother, who lived nearby, saw the
              strange car parked behind the barn and J.H. struggling outside.
              J.H.’s mother investigated and sought help from neighbors, who
              called police. When police arrived, Schwartz jumped out of a
              second story window, stole J.H.’s car, and fled. Schwartz was
              eventually apprehended in Wells County.


      Schwartz v. State, No. 02A05-1010-CR-714, 2011 WL 1204832, at *1 (Ind. Ct.

      App. Mar. 31, 2011) (footnotes omitted), trans. denied.


[4]   On October 8, 2009, the State charged Schwartz with fifteen felony counts.

      Schwartz was initially represented by a public defender; however, attorney

      Stanley Campbell (“Campbell”) was later hired to represent Schwartz during

      his plea proceedings. During an August 20, 2010 guilty plea hearing, the trial

      court questioned Schwartz concerning his mental health. Schwartz informed

      the trial court that he was being treated for depression, but was able to

      understand the proceedings, was able to assist in his defense, was not under the

      Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016   Page 3 of 27
      influence of drugs or alcohol, and was competent to enter a plea. Guilty Plea Tr.

      at 5-6. The trial court also informed Schwartz of the charges against him and

      the rights he would be giving up by pleading guilty. That same day, Schwartz

      pleaded guilty to: Count 1, rape as a Class A felony (armed with a deadly

      weapon); Count 2, criminal deviate conduct as a Class A felony (armed with a

      deadly weapon); Count 3, criminal deviate conduct as a Class A felony (armed

      with a deadly weapon); Count 4, burglary as a Class A felony (resulting in

      bodily injury); Count 5, robbery as a Class A felony (resulting in serious bodily

      injury); Count 6, criminal confinement as a Class B felony (armed with a

      deadly weapon); Count 7, battery as a Class C felony (resulting in serious

      bodily injury); Count 9, strangulation, a Class D felony; and Count 10, auto

      theft as a Class D felony. Sentencing was left to the trial court’s discretion.

      There was no agreement as to: Count 8, forgery, a Class C felony; Count 11,

      receiving stolen auto parts as a Class D felony; Count 12, dealing in

      methamphetamine as a Class B felony; Count 13, possession of

      methamphetamine as a Class D felony; Count 14, possession of chemical

      reagents with intent to manufacture methamphetamine as a Class D felony; and

      Count 15, possession of a controlled substance as a Class D felony. Following

      a sentencing hearing, Schwartz was committed to the Indiana Department of

      Correction for an aggregate sentence of 100 years.


[5]   In arriving at the sentence, the trial court considered Schwartz’s guilty plea to

      be a mitigating factor and his criminal history to be neither a mitigator nor a

      significant aggravator. The trial court rejected Schwartz’s argument that his


      Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016   Page 4 of 27
methamphetamine use was a mitigating factor, reasoning that Schwartz had a

history of substance abuse, and his claim—that drug use prevented him from

knowing what he was doing—lacked credibility. The trial court considered the

offenses to be either property-related or sex-related.2 The trial court sentenced

Schwartz to fifty years for the property-related offenses, consisting of fifty years

each for the burglary and robbery convictions and one and one-half years for

the auto theft conviction, all of which were to be served concurrently.

Sentencing Tr. at 49.3 The trial court sentenced Schwartz to fifty years on each

of the Class A felony sex-related convictions, ten years on the criminal

confinement conviction, and one and one-half years on the strangulation

conviction and ordered those sentences to be served concurrent with each other.

The trial court entered no sentence for the battery, merging that conviction into

the robbery. The trial court justified this sentence on the basis of the nature of

the offenses, i.e., the brutality and injury suffered by J.H., and the number of

different offenses, and noted that the sentence was “far from a maximum.” Id.

at 50. The trial court then ordered the sentences for the two groups of offenses

to be served consecutively and committed Schwartz to the Indiana Department




2
  On direct appeal, our court noted, “Although the judgment of conviction groups the offenses slightly
differently, both the sentence announced at the sentencing hearing and the judgment of conviction categorize
the offenses into two consecutive groups, totaling 100 years.” Schwartz, 2011 WL 1204832, at *2 n.2.
3
  At the post-conviction relief hearing, the State introduced trial court records, such as transcripts from the
guilty plea hearing and sentencing hearing and exhibits from the direct appeal, as Exhibits 1 and 2. Because
those documents are separately bound, for clarity, we omit the reference to PCR Ex. and cite to them by
name.

Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016              Page 5 of 27
      of Correction for a period of 100 years. At the conclusion of the sentencing

      hearing, Counts 8, 11, 12, 13, 14, and 15 were dismissed.


[6]   Schwartz filed a direct appeal and, again, was represented by Campbell. There,

      Schwartz alleged that the trial court abused its discretion by relying on facts not

      supported by the record to establish aggravating circumstances and by finding

      his addiction was not a mitigating circumstance. Schwartz also argued that his

      sentence was inappropriate in light of the nature of the offenses and the

      character of the offender. Our court affirmed Schwartz’s 100-year sentence.

      Schwartz, 2011 WL 1204832, at *5.


[7]   In November 2014, Schwartz filed “Amendment to Petition for Post-

      Conviction Relief,”4 alleging ineffective assistance of trial counsel, ineffective

      assistance of appellate counsel, and that his guilty plea was not knowing,

      intelligent, and voluntary. Schwartz alleged that Campbell rendered ineffective

      assistance as trial counsel when he: (1) failed to ask the State to eliminate

      alleged “double jeopardy enhancements,” such as use of the knife and bodily

      injury; (2) failed to argue that J.H.’s injuries did not constitute serious bodily

      injury; (3) failed to argue that Schwartz did not use the knife throughout the

      four crimes for which it was used as an enhancement; and (4) allowed Schwartz

      to plead guilty while a competency evaluation was pending in another county.

      Id. at 59-60, 247-48. Schwartz also alleged that Campbell rendered ineffective



      4
       Schwartz, acting pro se, had initially filed a petition for post-conviction relief in September 2011. The
      November 14, 2014 filing was an amendment to that petition. Appellant’s Br. at 6.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016             Page 6 of 27
      assistance as appellate counsel when he: (1) waived the issue of whether J.H.’s

      injuries constituted serious bodily injury; (2) failed to argue alleged double

      jeopardy violations; and (3) failed to include, as evidence on appeal the five

      character letters written in support of Schwartz and offered during sentencing.

      Id. at 61, 248. Finally, Schwartz alleged that his plea was not knowing,

      intelligent, and voluntary because he did not understand the definition of

      serious bodily injury or the double jeopardy implications of his plea. Id.


[8]   At the April 2015 post-conviction relief (“PCR”) evidentiary hearing, Schwartz

      offered the records pertaining to his guilty plea proceedings and his direct

      appeal, as well as records pertaining to J.H.’s medical examination following

      the attack. Schwartz also offered the testimony of two witnesses, attorneys

      Larry Mock (“Mock”) and Campbell. Mock, who had represented Schwartz in

      a Wells County case around the same time as the instant offense, testified that

      he had filed a request in January 2010 for appointment of medical experts “to

      determine [Schwartz’s] ability to assist in his defense” in that separate action.

      Pet’r’s PCR Ex. 3. Campbell knew that a competency evaluation had been

      requested in Schwartz’s Wells County case. Schwartz asserted that his trial

      counsel was ineffective for failing to determine he was competent prior to

      allowing him to plead guilty.


[9]   Campbell represented Schwartz during his guilty plea proceedings, at

      sentencing, and on direct appeal. During the PCR hearing, Campbell testified

      that he did not recall discussing with the prosecutor as part of plea negotiations

      the issues of double jeopardy or whether the serious bodily injury enhancement

      Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016   Page 7 of 27
       was supported by the evidence. PCR Tr. at 15-16. However, Campbell did

       recall that there had been three different plea agreements offered and that the

       prosecutor “was pretty entrenched in her position in terms of a plea offer” and

       did not seem inclined to dismiss charges.5 Id. at 16. The prosecutor wanted to

       establish a minimum sentence, or floor, of around fifty years for the plea

       agreement, while Schwartz wanted an agreement with a sentence of thirty to

       thirty-five years. Accordingly, Campbell’s discussion with the prosecutor

       focused on eliminating or reducing the sentence floor. Schwartz eventually

       decided to plead guilty to nine counts. Campbell testified that it was his

       strategy “that if the State wanted to go forward with the remaining [six] Counts

       they could do that, but ultimately, as we hoped they would, [the State] ended

       up dismissing those Counts that [Schwartz] hadn’t pled guilty to.” Id. at 17.

       Regarding his representation of Schwartz on appeal, Campbell explained that

       he did not include the character letters written in support of Schwartz for the

       purposes of sentencing because “it wasn’t the focus of the attack we were

       making on appeal.” Id. at 21.


[10]   Following the hearing, the PCR court granted partial relief, concluding that

       Schwartz correctly asserted that “although the victim suffered bodily injury, it




       5
        The only change the prosecutor agreed to was a modification of the plea agreement to allow Schwartz to
       plead guilty to possession of methamphetamine, instead of dealing in methamphetamine, as charged. PCR
       Tr. at 25.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016       Page 8 of 27
       does not appear to have met the statutory definition of serious bodily injury.”

       Pet’r’s PCR App. at 210. The PCR court reasoned:


                  The evidence submitted by Petitioner at the post-conviction
                  hearing [Findings of Fact, number 13] 6 is sufficient to meet his
                  burden of proving, by a preponderance of the evidence, that the
                  victim did not suffer serious bodily injury. This evidence was
                  available to Attorney Campbell in the original proceeding.
                  Petitioner correctly maintains that Attorney Campbell could and
                  should have used this evidence to obtain a reduction of the
                  Robbery charge to a Class C felony and of the Battery charge to a
                  Class A misdemeanor.


       Id.


[11]   The PCR court noted that this evidence was available to Campbell on direct

       appeal and, had Campbell raised that issue, this court would have granted

       relief. Accordingly, the PCR court: (1) changed Schwartz’s conviction for

       Count 5 robbery from a Class A to a Class C felony, reducing the sentence from

       fifty years to eight years; and (2) changed his conviction for Count 7 battery

       from a Class C felony to a Class A misdemeanor. Although no initial sentence

       was entered on the battery because it was merged, the PCR court reduced that




       6
           The post-conviction court’s Findings of Fact Number 13, in pertinent part provided:

                At the post-conviction hearing, Petitioner submitted evidence establishing that, when taken to
                the hospital after the attack, the victim complained of little pain; she had numerous lacerations
                and abrasions, but no fractures or other injuries.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016               Page 9 of 27
       sentence to one year.7 Id. The PCR court denied relief to Schwartz on all other

       issues. Schwartz now appeals.


                                        Discussion and Decision
[12]   Schwartz contends that the PCR court erred in failing to grant him full relief.

       PCR proceedings do not afford the petitioner an opportunity for a super appeal,

       but rather, provide the opportunity to raise issues that were unknown or

       unavailable at the time of the original trial or the direct appeal. Ben-Yisrayl v.

       State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164 (2002);

       Wieland v. State, 848 N.E.2d 679, 681 (Ind. Ct. App. 2006), trans. denied, cert.

       denied, 549 U.S. 1038 (2006). The proceedings do not substitute for a direct

       appeal and provide only a narrow remedy for subsequent collateral challenges

       to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The PCR petitioner bears the

       burden of proving the grounds by a preponderance of the evidence. Ind. Post-

       Conviction Rule 1(5).


[13]   When appealing the denial of post-conviction relief, the petitioner stands in the

       position of one appealing from a negative judgment. Hubbell v. State, 58 N.E.3d

       268, 274 (Ind. Ct. App. 2016). The petitioner must establish that the evidence

       as a whole unmistakably and unerringly leads to a conclusion contrary to that




       7
         During sentencing, the State noted that the battery conviction had to be merged into the robbery conviction,
       stating, “I think the battery is the serious bodily injury which is basically the facial injury when she got
       shoved through the window which is right in the proximity when he's demanding the money and she doesn't
       provide him with enough money.” Sentencing Tr. at 36-37. The trial court agreed it was appropriate to merge
       the offense and entered no sentence for the battery conviction. Id. at 50.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016          Page 10 of 27
       of the PCR court. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007),

       trans. denied. We will disturb a PCR court’s decision as being contrary to law

       only where the evidence is without conflict and leads to but one conclusion,

       and the PCR court has reached the opposite conclusion. Wright v. State, 881

       N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans. denied. The PCR court is the

       sole judge of the weight of the evidence and the credibility of witnesses. Lindsey

       v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied. We accept that

       court’s findings of fact unless clearly erroneous, but we accord no deference to

       conclusions of law. Fisher, 878 N.E.2d at 463.


                            I. Ineffective Assistance of Counsel
[14]   Schwartz claims that the PCR court erred by concluding that he received

       effective assistance of both trial and appellate counsel. To prevail on a claim of

       ineffective assistance of counsel, a petitioner must demonstrate both that his or

       her counsel’s performance was deficient—that is, that counsel made errors so

       serious that counsel was not functioning as the “counsel” guaranteed to

       defendant by the Sixth and Fourteenth Amendments—and that the petitioner

       was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S.

       668, 687 (1984); Black v. State, 54 N.E.3d 414, 424 (Ind. Ct. App. 2016), trans.

       denied. Counsel’s performance is deficient if it falls below an objective standard

       of reasonableness based on prevailing professional norms. Black, 54 N.E.3d at

       424. To meet the appropriate test for prejudice, the petitioner must show that

       there is a reasonable probability that, but for counsel’s unprofessional errors, the

       result of the proceeding would have been different. Id. “A reasonable

       Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016   Page 11 of 27
       probability is a probability sufficient to undermine confidence in the outcome.”

       Id. Failure to prove either that counsel was defective or that petitioner was

       prejudiced will cause petitioner’s claim to fail. Id.


[15]   “When considering a claim of ineffective assistance of counsel, a ‘strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment’”; a

       defendant must offer strong and convincing evidence to overcome this

       presumption. Black, 54 N.E.3d at 424-25 (quoting Morgan v. State, 755 N.E.2d

       1070, 1073 (Ind. 2001)). Evidence of isolated poor strategy, inexperience, or

       bad tactics will not support a claim of ineffective assistance of counsel. Id. The

       two prongs of the Strickland test are separate and independent inquiries.

       Manzano v. State, 12 N.E.3d 321, 325 (Ind. Ct. App. 2014), trans. denied, cert.

       denied, 135 S. Ct. 2376 (2015). “Thus, if it is easier to dispose of an

       ineffectiveness claim on the ground of lack of sufficient prejudice . . . that

       course should be followed.” Id. (internal quotation marks omitted).


                                               A. Trial Counsel

[16]   Schwartz argues that trial counsel provided ineffective assistance during plea

       negotiations, the guilty plea hearing, and the sentencing hearing. Specifically,

       Schwartz contends that trial counsel should have challenged: (1) that J.H.’s

       injuries did not meet the statutory definition of serious bodily injury to elevate

       the crimes of robbery and battery; (2) that enhancing the crimes of rape,

       criminal deviate conduct, and confinement all on the basis of Schwartz being

       armed with a deadly weapon (the knife) violated double jeopardy principles;
       Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016   Page 12 of 27
       and (3) the same bodily injury could not be used to elevate the three charges of

       burglary, robbery, and battery. Further, he contends that trial counsel should

       have ensured that Schwartz was competent to plead guilty.


[17]   Schwartz pleaded guilty to three offenses that were enhanced by bodily injury

       (burglary) or serious bodily injury (robbery and battery). Schwartz suggests two

       ways in which trial counsel was ineffective in connection with these charges.

       First, trial counsel failed to recognize that the evidence did not support a

       finding that J.H. suffered serious bodily injury, and second, trial counsel failed

       to argue that the same bodily injury that enhanced the burglary count was also

       used to enhance both the robbery and the battery counts. The PCR court

       agreed with Schwartz’s first claim, and the State conceded that trial counsel was

       ineffective for not raising the improper use of the “serious bodily injury”

       enhancement. Appellant’s App. at 210. Accordingly, the PCR court removed

       the serious bodily injury enhancement from the two counts and reduced

       Schwartz’s robbery conviction to a Class C felony and his battery conviction to

       a Class A misdemeanor. Id.


[18]   The PCR court, however, did not agree with Schwartz’s claim that trial counsel

       was ineffective for failing to argue that the same bodily injury was improperly

       used to enhance the charges of burglary, robbery, and battery. We recognize

       that charges based on the same bodily injury cannot stand, Owens v. State, 897

       N.E.2d 537, 539 (Ind. Ct. App. 2008); however, we agree with the PCR court

       that J.H. suffered injuries that were separate in time and location. The evidence

       supporting Schwartz’s Class A burglary conviction was that Schwartz admitted

       Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016   Page 13 of 27
       he broke into J.H.’s dwelling, with intent to commit a felony therein, and the

       felony resulted in bodily injury—bruises to J.H.’s shoulder and bruises and pain

       to her back. Sentencing Tr. at 33. Schwartz’s conviction for Class A

       misdemeanor battery was supported by his admission that he knowingly or

       intentionally touched J.H. in a rude insolent or angry manner, resulting in

       bodily injury—a facial injury caused when Schwartz shoved J.H.’s head into a

       glass window. Id. at 34. Finally, Schwartz’s conviction for Class C robbery

       required no injury. That conviction was supported by Schwartz’s admission

       that he knowingly or intentionally took money from J.H. by using or

       threatening the use of force or by putting J.H. in fear while he forcibly took J.H.

       to her car to retrieve her purse. These three convictions did not rely on an

       improper bodily injury enhancement. Trial counsel was not ineffective for

       failing to challenge the bodily injury enhancements.


[19]   Schwartz next argues that trial counsel was ineffective for not questioning the

       use of the enhancement “armed with a deadly weapon [, the knife,]” to elevate

       the seriousness of the charges of rape, criminal confinement, and two counts of

       criminal deviant conduct. During the PCR hearing, Schwartz maintained that

       trial counsel was ineffective for failing to argue that the knife was not used

       repeatedly and, therefore, should not have enhanced four separate counts. PCR

       Tr. at 15, 16 & 20. As support for his position, Schwartz pointed to the State’s

       comment, during sentencing, that Schwartz “used the knife to cut off [J.H.]’s

       clothes in order to facilitate his sexual acts.” Appellant’s Br. at 11 (citing

       Sentencing Tr. at 35). The State countered, offering J.H.’s sentencing testimony


       Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016   Page 14 of 27
       that “the knife always was present,” and J.H. “felt that he could do anything at

       any time.” Sentencing Tr. at 25.


[20]   The PCR court agreed with the State, reasoning:

               The victim’s statement that the knife “was always present,” and,
               along with Petitioner’s rage, “ruled [her] behavior” [Findings of
               Fact, number 10], supports a rational inference that Petitioner did
               use the knife in the course of forcing the victim to submit to all the
               charged sex offenses and the confinement. In this regard,
               Petitioner’s case is comparable to Marshall v. State, 832 N.E.2d
               615 (Ind. Ct. App. 2008), trans. denied. In [that] case, Marshall
               held a knife to the 13 year old victim’s throat once, and
               committed three different acts of molestation. Marshall appealed
               the convictions on three counts of Class A felony child molesting,
               asserting all three should not have been elevated to Class A
               felonies because he did not use the knife repeatedly. The Court
               of Appeals succinctly disagreed: “Although Marshall only held
               his knife to D.N’s throat once, it is not as if Marshall needed to
               remind D.N. of the knife’s presence as he used the threat of the
               knife to facilitate each independent molestation.” It is clear from
               the victim’s statement that Petitioner did not need to remind
               [J.H.] of the knife’s presence as he used the threat of the knife to
               facilitate each sex offense and the confinement. Petitioner has
               not shown a reasonable probability that Attorney Campbell could
               have succeeded in obtaining a reduction of the class of any of the
               Class A felony sex offenses or the Class B confinement offense,
               by any means. Attorney Campbell cannot be found ineffective
               for failing to do so.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016   Page 15 of 27
       Pet’r’s PCR App. at 210-11 (emphasis added) (internal citations omitted).

       Schwartz has not proved that trial counsel was ineffective for failing to raise a

       claim of improper enhancement based on the use of the knife. 8


[21]   Moreover, Schwartz has not proven that he was prejudiced by trial counsel’s

       actions during plea negotiations, guilty plea hearing, or sentencing. To show

       prejudice resulting from deficient performance in plea negotiations, a petitioner

       for post-conviction relief must show a reasonable probability that the end result

       of the criminal process would have been more favorable by reason of a lesser

       charge or a sentence of less prison time. Missouri v. Frye, 132 S. Ct. 1399, 1409

       (2012). Schwartz argues that he was prejudiced by trial counsel’s failure to raise

       the above issues during plea negotiations because, if trial counsel had effectively

       attacked these improper enhancements, the severity of the crimes would have

       been reduced, and the State would have been negotiating from a weaker and

       certainly different sentencing position. Appellant’s Br. at 11.


[22]   Here, Schwartz cannot show he was prejudiced by his trial counsel’s conduct

       during plea negotiations, Schwartz cannot establish prejudice because there is

       no evidence that the end result of the criminal process would have been more




       8
         See also Sistrunk v. State, 36 N.E.3d 1051 (Ind. 2015). There, acting sua sponte, our Supreme Court,
       reversing this court, held that it was not improper to enhance both of defendant’s convictions for robbery and
       criminal confinement from Class C to Class B felonies on the basis of the same evidence, namely, defendant’s
       act of being armed with a deadly weapon. Id. at 1054. Therefore, we agree with the State that, even if
       Schwartz could prove that he did not repeatedly threaten J.H. with the knife, “[M]ultiple enhancements
       would still be proper if the victim complied with his subsequent demands due to the original threat by a
       deadly weapon.” Appellee’s Br. at 21.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016          Page 16 of 27
       favorable by reason of a lesser charge or a sentence of less than 100 years. First,

       the trial court imposed a 100-year sentence, which was ten years more than the

       State had requested. Second, the PCR court was convinced that the prosecutor

       was “pretty entrenched” and refused to drop any charges, and Campbell did not

       make much progress in his attempt to get the State to reduce Schwartz’s

       charges. Pet’r’s PCR App. at 207. Third, even though the PCR court reduced

       the severity and sentence for Schwartz’s robbery and battery convictions, the

       PCR court found no reason to reduce Schwartz’s sentence of 100 years;

       Schwartz remained guilty of Class A felony rape, two counts of Class A felony

       criminal deviate conduct, and one count of Class A felony burglary, among

       other crimes. There is no evidence that trial counsel prevented him from

       getting a better plea offer or a lesser sentence. No prejudice was shown.


[23]   To show prejudice in the guilty plea context, Schwartz had to prove that but for

       trial counsel’s deficient performance, he would not have pleaded guilty and

       would likely have succeeded at trial. Manzano, 12 N.E.3d at 326. Here, the

       case against Schwartz was very strong. There was no question that Schwartz

       was the man who committed the crimes; he had worked for J.H., so his identity

       was known. Further, Schwartz knew the severity of the crimes and the injuries

       he had caused. Prior to entering his plea, the trial court informed Schwartz that

       his five Class A felonies carried a sentencing range of twenty to fifty years with

       a thirty-year advisory; his one Class B felony carried a range of six to twenty

       years with an advisory of ten; his one Class C felony carried a range of two to

       eight years with an advisory of four years; and his two Class D felonies carried


       Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016   Page 17 of 27
       a range of six months to three years with an advisory of one and one-half years.

       Guilty Plea Tr. at 12-13. The trial court also informed Schwartz, “Indiana law

       provides for aggravating circumstances that may be considered by the Court at

       sentencing and that in considering such aggravating circumstances the Court

       could impose consecutive terms of imprisonment for multiple offenses.” Id. at

       14. Schwartz pleaded guilty to nine of the fifteen counts without a plea

       agreement. The remaining six counts were dismissed. Even if we ignore

       Counts 5 and 7 and consider only the remaining convictions, Schwartz was

       guilty of four Class A felonies, one Class B felony, and two Class D felonies.

       The advisory sentence for each of those crimes, served consecutively,

       constituted an aggregate sentence of 133 years. There is no evidence that but

       for trial counsel’s claimed deficient performance, Schwartz would not have

       pleaded guilty and would likely have succeeded at trial. Manzano, 12 N.E.3d at

       326. Additionally, there is no evidence that Schwartz could have negotiated a

       better plea, no prejudice was proven.


[24]   To prove prejudice in the sentencing context, Schwartz had to prove that

       counsel’s deficient performance deprived him of a substantive or procedural

       right. Schwartz claims that trial counsel’s ineffective representation resulted in

       a sentence of 100 years. Schwartz’s arguments regarding prejudice from

       ineffective assistance of counsel for sentencing are essentially the same as the

       issues already addressed with regard to assistance of counsel during plea

       negotiations and the guilty plea hearing. The PCR court found that Schwartz

       had “not shown any prejudice to his defense resulted in regard to the aggregate


       Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016   Page 18 of 27
       sentence. He is entitled to no reduction in the aggregate sentence.” Pet’r’s PCR

       App. at 213. We agree with the PCR court that Schwartz was not prejudiced by

       trial counsel’s representation during sentencing. First, Schwartz received relief

       in the PCR court with regard to his claims regarding serious bodily injury

       enhancements. Pet’r’s PCR App. at 210, 213, 222. Second, he was not entitled

       to any relief on his claims regarding the deadly weapon enhancements. Third,

       there is no reasonable probability that Schwartz would have received a lesser

       sentence if he had presented sentencing arguments regarding the bodily injury

       enhancement. Schwartz’s 100-year sentence was supported by his Class A

       felony convictions for rape and burglary and his convictions for criminal

       deviate conduct, robbery, criminal confinement, strangulation, and auto theft.


[25]   A criminal defendant’s due process rights to a fair trial are not adequately

       protected if he is not legally competent to stand trial. Drope v. Missouri, 420 U.S.

       162 (1975). Schwartz argues that Campbell provided deficient representation

       by allowing Schwartz to plead guilty without waiting for the Wells County

       evaluations to be complete. At the PCR hearing, Mock, who had represented

       Schwartz in a Wells County case around the same time as the instant offenses,

       testified that, upon being appointed to the case, Schwartz “would talk about

       demons being in the room with us and things of that nature,” and Mock was

       unable to communicate with Schwartz about the case. PCR Tr. at 7-8. As such,

       Mock filed a request in January 2010 for appointment of medical experts “to

       determine [Schwartz’s] ability to assist in his defense.” Pet’r’s PCR Ex. 3. Two

       doctors were appointed to evaluate Schwartz’s competency; however, Mock


       Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016   Page 19 of 27
       withdrew his evaluation request in October 2010 because, by then, Schwartz

       could help with his case and no longer appeared to be incompetent. During the

       PCR hearing, Campbell testified that he became aware that competency

       evaluations had been sought in Wells County, but he did not remember

       whether he spoke to Mock to inquire about Schwartz’s competence. PCR Tr. at

       13-14. Campbell thought Schwartz’s use of “meth” had skewed his thought

       processes, but Campbell “never had the impression that [Schwartz] was

       incompetent or did not understand what they were talking about.” Pet’r’s PCR

       App. at 208. Nothing Campbell observed led him to conclude that there was

       any need to delay the guilty plea proceedings for a competency evaluation.


[26]   The PCR court found that Campbell was not ineffective for failing to await the

       outcome of a competency hearing in another case, in another county, which

       was ultimately withdrawn. We agree. Observations of a defendant’s demeanor

       in court provide an adequate basis for finding that no competency hearing is

       needed. Brown v. State, 516 N.E.2d 29, 30 (Ind. 1987). During the guilty plea

       hearing, the trial court questioned Schwartz regarding his mental health and

       learned that Schwartz was being treated for depression, was taking medication,

       and felt competent to participate in the proceedings. Guilty Plea Tr. at 5-6.

       Campbell concurred with Schwartz’s assessment and agreed that Schwartz

       understood the situation he was in, was able to assist in his defense, and was

       competent to enter a plea. Id. at 6. The trial court was satisfied regarding

       Schwartz’s competency and accepted his plea. Schwartz may have been

       experiencing mental health issues in 2010; however, he has presented no


       Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016   Page 20 of 27
       evidence that they were of the type that would have rendered him incompetent

       to plead guilty. Schwartz has not shown either ineffective assistance or

       prejudice by his counsel’s failure to challenge his competency.


                                            B. Appellate Counsel

[27]   Schwartz next contends that the PCR court erred in finding that Campbell

       provided effective assistance of appellate counsel. Specifically, he argues that

       appellate counsel rendered ineffective assistance on appeal by: (1) waiving the

       issue of whether J.H.’s injuries should have been used to aggravate the

       sentence; (2) failing to argue alleged double jeopardy violations; and (3) failing

       to include in the record on appeal the five letters supporting Schwartz’s

       character.


[28]   The standard of review for a claim of ineffective assistance of appellate counsel

       is identical to the standard for trial counsel. Lowery v. State, 640 N.E.2d 1031,

       1048 (Ind. 1994), cert. denied, 516 U.S. 992 (1995). The petitioner must establish

       deficient performance by appellate counsel resulting in prejudice. Id.

       “Ineffective assistance of appellate counsel claims generally fall into three basic

       categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure

       to present issues well.” Henley v. State, 881 N.E.2d 639, 644 (Ind. 2008). “[T]he

       decision of what issues to raise is one of the most important strategic decisions

       to be made by appellate counsel.” Reed v. State, 856 N.E.2d 1189, 1196 (Ind.

       2006). In evaluating whether appellate counsel performed deficiently by failing

       to raise an issue on appeal, we apply the following test: (1) whether the

       unraised issue is significant and obvious from the face of the record; and (2)
       Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016   Page 21 of 27
whether the unraised issue is “clearly stronger” than the raised issues. Henley,

881 N.E.2d at 645. For countless years, experienced advocates have

“emphasized the importance of winnowing out weaker arguments on appeal

and focusing on one central issue if possible, or at most a few key issues.”

Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997), cert. denied, 525 U.S. 1021

(1998) (citation and quotation marks omitted). Thus, when reviewing these

types of claims, we should be particularly deferential to appellate counsel’s

strategic decision to exclude certain issues in favor of other issues more likely to

result in a reversal. Id. As a result, “[i]neffective assistance is very rarely found

in cases where a defendant asserts that appellate counsel failed to raise an issue

on direct appeal.” Reed, 856 N.E.2d at 1196.


Schwartz contends the PCR court erred in finding appellate counsel was not

ineffective for failing to admit five reference letters on direct appeal. Schwartz

argues, if this court on direct appeal had understood Schwartz’s character

outside his addiction to drugs, it may have found the 100-year sentence was

inappropriate. The letters pertained to Schwartz’s character when he was not

on drugs, an issue that was not in dispute. The PCR court found questionable

the relevance of Schwartz’s character when he was not on drugs “in view of the

fact that he was on drugs for a significant period of time, i.e., some years before

the offenses.” Pet’r’s PCR App. at 219. The PCR court denied Schwartz’s claim

that appellate counsel was ineffective, finding unpersuasive Schwartz’s reliance

on Long v. State, 865 N.E.2d 1031 (Ind. Ct. App. 2007), trans. denied. The PCR

court cited to the following reasons why Long’s character, as set forth in the


Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016   Page 22 of 27
       letters, was relevant while Schwartz’s was not. The court in Long found: (1)

       Long’s character did not justify the maximum sentence, but Schwartz was not

       given the maximum sentence; (2) Long’s act of voluntary manslaughter was

       clearly out of character because he had no criminal history, while Schwartz had

       a criminal history; (3) Long was not on drugs, but Schwartz was on drugs; and

       (4) Long’s twenty-three character letters were not cumulative, while Schwartz’s

       five letters were. Pet’r’s PCR App. at 219-21. Schwartz argues that these four

       factors are not pertinent. However, his arguments are merely a request that we

       reweigh the evidence, which we will not do. Sweet v. State, 10 N.E.3d 10, 15

       (Ind. Ct. App. 2014). Appellate counsel was not ineffective for failing to offer

       the character letters on direct appeal.


[29]   Schwartz’s remaining ineffective assistance of appellate counsel claims

       essentially echo those asserted against his trial counsel. For the reasons

       previously explained herein, we find that, like trial counsel, appellate counsel

       did not provide ineffective assistance to Schwartz, and Schwartz was in no way

       prejudiced by appellate counsel’s representation.


                                II. Voluntariness of Guilty Plea
[30]   Schwartz also claims that his guilty plea was not knowingly, intelligently, and

       voluntarily entered because he did not understand that he was pleading guilty to

       an enhancement (“serious bodily injury”) that could not be proven. Schwartz

       characterizes this issue not as one of ineffective assistance of counsel, but

       instead, as a question of voluntariness—the distinction being, “voluntariness

       ‘focuses on whether the defendant knowingly and freely entered the plea, in
       Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016   Page 23 of 27
       contrast to ineffective assistance, which turns on the performance of counsel

       and resulting prejudice.’” Black, 54 N.E.3d at 424. In general, a defendant may

       not challenge a guilty plea through direct appeal. St. Clair v. State, 901 N.E.2d

       490, 492 (Ind. 2009). “The path to challenging the plea and conviction runs by

       way of a petition for post-conviction relief.” Id.


[31]   “The long-standing test for the validity of a guilty plea is ‘whether the plea

       represents a voluntary and intelligent choice among the alternative courses of

       action open to the defendant.’” Diaz v. State, 934 N.E.2d 1089, 1094 (Ind. 2010)

       (quoting N. Carolina v. Alford, 400 U.S. 25, 31 (1970)). In furtherance of this

       objective, the Indiana Code provides that the court accepting the guilty plea

       must determine that the defendant: (1) understands the nature of the charges;

       (2) has been informed that a guilty plea effectively waives several constitutional

       rights, including trial by jury, confrontation and cross-examining of witnesses,

       compulsory process, and proof of guilt beyond a reasonable doubt without self-

       incrimination; and (3) has been informed of the maximum and minimum

       sentences for the crime charged. Ind. Code § 35-35-1-2.; Diaz, 934 N.E.2d at

       1094.


[32]   In assessing the voluntariness of the plea, this court reviews all the evidence

       before the PCR court, “including testimony given at the post-conviction trial,

       the transcript of the petitioner’s original sentencing, and any plea agreements or

       other exhibits which are part of the record.” Black, 54 N.E.3d at 424 (citation

       omitted). Generally speaking, if a trial court undertakes these steps, a PCR

       petitioner will have a difficult time overturning his guilty plea on collateral

       Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016   Page 24 of 27
       attack. Richardson v. State, 800 N.E.2d 639, 643 (Ind. Ct. App. 2003) (citation

       omitted).


[33]   Schwartz pleaded guilty to nine felony counts, including Count 5 robbery and

       Count 7 battery, both of which had been elevated by the State’s allegation that

       they resulted in serious bodily injury to J.H. “Serious bodily injury” is defined

       in Indiana Code section 35-31.5-2-292.9 Schwartz maintains that his trial

       counsel did not inform him of the meaning of that term, and therefore, he did

       not know that the element of serious bodily injury could not be proven under

       Counts 5 and 7. Schwartz argues, that a guilty plea “cannot be truly voluntary

       unless the defendant possesses an understanding of the law in relation to the

       facts.” Appellant’s Br. at 19 (quoting Henderson v. Morgan, 426 U.S. 637, 641

       (1976)). As such, Schwartz claims that his pleas of guilty to robbery and battery

       were not knowing, voluntary, and intelligent.


[34]   Evidence that a person was “coerced or misled into pleading guilty by the

       judge, prosecutor or defense counsel will present a colorable claim that their

       plea was not voluntary.” Black, 54 N.E.3d at 424 (citing State v. Moore, 678

       N.E.2d 1258, 1265 (Ind. 1997), cert. denied, 523 U.S. 1079 (1998)). Here, we

       find no such colorable claim. Trial counsel testified that he could not recall




       9
         Indiana Code section 35-31.5-2-292 provides, “Serious bodily injury” means bodily injury that creates a
       substantial risk of death or that causes: (1) serious permanent disfigurement; (2) unconsciousness; (3)
       extreme pain; (4) permanent or protracted loss or impairment of the function of a bodily member or organ; or
       (5) loss of a fetus.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016         Page 25 of 27
       whether he had explained to Schwartz the definition of serious bodily injury.

       PCR Tr. at 17. Even so, Schwartz did not testify at the PCR evidentiary hearing

       that he was coerced or misled into pleading guilty.


[35]   Here, the evidence against Schwartz was overwhelming. There was no

       question that Schwartz was the man who committed the crimes; he had worked

       for J.H. so his identity was known. Further, Schwartz also knew the severity of

       the injuries he had caused. Schwartz pleaded guilty to nine of fifteen charged

       felonies without a plea agreement, and the remaining six counts were

       dismissed. Prior to accepting Schwartz’s plea, the trial court inquired into

       Schwartz’s mental health and competency to make the plea. Guilty Plea Tr. at

       5-6. The court also confirmed that Schwartz understood the nature of the

       charges and that a guilty plea effectively waived certain constitutional rights.

       Id. at 6-12. Finally, the trial court informed Schwartz that: his five Class A

       felonies carried a sentencing range of twenty to fifty years with a thirty-year

       advisory; his one Class B felony carried a range of six to twenty years with an

       advisory of ten; his one Class C felony carried a range of two to eight years with

       an advisory of four years; and his two Class D felonies carried a range of six

       months to three years with an advisory of one and one-half years. Id. at 12-13.

       Schwartz contends that his lack of knowledge about the meaning of “serious

       bodily injury” meant his plea was not voluntarily or intelligently made. We

       disagree, finding that Schwartz’s “plea represents a voluntary and intelligent

       choice among the alternative courses of action open to [him].” See Alford, 400

       U.S. at 37-38 (when plea is viewed in light of evidence, which substantially


       Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-279 | November 7, 2016   Page 26 of 27
       negated defendant’s claim of innocence and provided means by which judge

       could test whether plea was intelligently entered, plea’s validity cannot be

       seriously questioned).


[36]   Affirmed.


       May, J., and Crone, J., concur.




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