MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
                                                                         Feb 07 2020, 10:31 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Michael T. Barnett                                       Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael T. Barnett,                                      February 7, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-3010
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Newman,
Appellee-Respondent.                                     Jr., Judge
                                                         Trial Court Cause No.
                                                         48C03-1312-PC-54



Sharpnack, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-3010 | February 7, 2020                  Page 1 of 13
                                      Statement of the Case
[1]   Michael Barnett appeals the post-conviction court’s denial of his petition for

      post-conviction relief. We affirm.


                                                    Issues
[2]   Barnett presents four issues for our review, which we restate as:


              I.       Whether the post-conviction court erred by denying
                       Barnett’s claim of ineffective assistance of trial counsel.


              II.      Whether the post-conviction court erred by denying
                       Barnett’s claim of ineffective assistance of appellate
                       counsel.


              III.     Whether the post-conviction court erred by adopting the
                       State’s proposed findings of fact and conclusions of law.


              IV.      Whether the trial court abused its discretion in sentencing
                       Barnett and whether his sentence is manifestly
                       unreasonable.


                               Facts and Procedural History
[3]   The underlying facts, as stated in Barnett’s direct appeal, are as follows:


              Barnett was married to Lisa Williams, and they lived together
              with Williams’s two children. During the early morning hours of
              September 21, 2003, Barnett instructed his eleven-year-old step-
              daughter, E.G., to remove her clothes and lie on the floor in the
              family room. Barnett then inserted his penis into E.G.’s anus.
              Williams entered the room and caught Barnett during this act.


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-3010 | February 7, 2020   Page 2 of 13
              During the confrontation that ensued, Barnett grabbed Williams
              and beat her in the head with a metal figurine.


              On September 24, 2003, the State charged Barnett with one count
              of Class A felony child molesting and one count of Class C
              felony battery with a deadly weapon. Barnett pleaded guilty to
              the charged offenses on May 17, 2004. A sentencing hearing was
              held on June 7, 2004, at the conclusion of which the trial court
              sentenced Barnett to the maximum term of fifty years for the A
              felony and the maximum term of eight years for the C felony and
              ordered the sentences to be served consecutively for a total
              executed sentence of fifty-eight years. On July 21, 2004, Barnett
              filed a motion to file a belated notice of appeal, which the trial
              court granted the same day.


      Barnett v. State, No. 48A02-0410-CR-905, slip op. *2 (Ind. Ct. App. May 3,

      2005) (internal footnotes omitted).


[4]   On direct appeal, Barnett challenged his fifty-eight year aggregate sentence as to

      aggravating and mitigating circumstances and inappropriateness. This Court

      affirmed the judgment of the trial court. See id.


[5]   In December 2013, Barnett filed his pro se petition for post-conviction relief,

      which he later amended. An evidentiary hearing was held on Barnett’s petition

      on March 27, 2017. The court took the matter under advisement and allowed

      the parties to submit proposed findings of fact and conclusions of law. On

      October 29, 2018, the court issued its order adopting the proposed findings and

      conclusions of the State and denying Barnett’s petition. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-3010 | February 7, 2020   Page 3 of 13
                                   Discussion and Decision
[6]   To the extent the post-conviction court has denied relief, the petitioner appeals

      from a negative judgment and faces the rigorous burden of showing that the

      evidence, as a whole, leads unerringly and unmistakably to a conclusion

      opposite that reached by the post-conviction court. Harris v. State, 762 N.E.2d

      163, 166 (Ind. Ct. App. 2002), trans. denied. A post-conviction court’s findings

      and judgment will be reversed only upon a showing of clear error — that which

      leaves us with a definite and firm conviction that a mistake has been made.

      Kistler v. State, 936 N.E.2d 1258, 1261 (Ind. Ct. App. 2010), trans. denied. In this

      review, findings of fact are accepted unless they are clearly erroneous, and no

      deference is accorded to conclusions of law. Id. The post-conviction court is

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

      Witt v. State, 938 N.E.2d 1193, 1196 (Ind. Ct. App. 2010), trans. denied.


[7]   Barnett alleges ineffective assistance of both trial and appellate counsel. To

      prevail on a claim of ineffective assistance of counsel, a defendant is required to

      establish both (1) that counsel’s performance was deficient and (2) that

      counsel’s deficient performance prejudiced the defendant. Johnson v. State, 948

      N.E.2d 331, 334 (Ind. 2011) (citing Strickland v. Washington, 466 U.S. 668, 687-

      96, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). To satisfy the first element, the

      defendant must show that counsel’s representation fell below an objective

      standard of reasonableness and that counsel’s errors were so serious that the

      defendant was denied the counsel guaranteed by the Sixth Amendment. Bethea

      v. State, 983 N.E.2d 1134, 1138 (Ind. 2013). In order to satisfy the second

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-3010 | February 7, 2020   Page 4 of 13
      element, the defendant must show prejudice; that is, a reasonable probability

      that, but for counsel’s errors, the result of the proceeding would have been

      different. Id. at 1139. There is a strong presumption that counsel rendered

      effective assistance and made all significant decisions in the exercise of

      reasonable professional judgment, and the defendant has the burden of

      overcoming this presumption. Harris, 762 N.E.2d at 168-69.


                                 I. Assistance of Trial Counsel
[8]   Barnett first contends he received ineffective assistance from his trial counsel,

      claiming that counsel coerced him into accepting an illusory plea agreement.

      Particularly, he asserts that trial counsel performed deficiently by

      recommending he accept the plea offer to avoid the State’s threat of filing

      additional charges, even though the State was foreclosed from filing additional

      charges because the statutory deadline had passed. See Ind. Code § 35-34-1-

      5(b)(1) (1993) (providing that information could be amended upon written

      notice to defendant any time up to thirty days before omnibus date if defendant

      is charged with felony).


[9]   There are two main types of ineffective assistance of trial counsel claims made

      in the context of guilty pleas: (1) the failure to advise the defendant on an issue

      that impairs or overlooks a defense, and (2) an incorrect advisement of penal

      consequences. Arnold v. State, 61 N.E.3d 1171, 1179 (Ind. Ct. App. 2016).

      Barnett’s claim seems to fall within the first category, where, in order to

      establish that the guilty plea would not have been entered if counsel had


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-3010 | February 7, 2020   Page 5 of 13
       performed effectively, the petitioner must show that a defense was overlooked

       or impaired and that the defense would likely have changed the outcome of the

       proceeding. Id.


[10]   During the pendency of this case, certain facts came to light supporting

       additional charges of child molesting. The State was willing to accept Barnett’s

       open plea, and in return, it would not file additional charges which would

       expose him to a significantly longer sentence if convicted. Pursuant to the

       prevailing case law at the time of Barnett’s charges and plea, amendments to a

       charging information that were related to matters of substance were regularly

       permitted as long as the substantial rights of the defendant were not prejudiced,

       regardless of whether the amendments were untimely under Section 35-34-1-

       5(b). See, e.g., Wright v. State, 593 N.E.2d 1192 (Ind. 1992); Kindred v. State, 540

       N.E.2d 1161 (Ind. 1989); Haymaker v. State, 528 N.E.2d 83 (Ind. 1988); Hegg v.

       State, 514 N.E.2d 1061 (Ind. 1987); Laughner v. State, 769 N.E.2d 1147 (Ind. Ct.

       App. 2002), trans. denied; Townsend v. State, 753 N.E.2d 88 (Ind. Ct. App. 2001);

       Tripp v. State, 729 N.E.2d 1061 (Ind. Ct. App. 2000); Todd v. State, 566 N.E.2d
                                                                                                                    1
       67 (Ind. Ct. App. 1991); State v. Gullion, 546 N.E.2d 121 (Ind. Ct. App. 1989).




       1
         In his brief to this Court, Barnett mentions Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007), where our
       Supreme Court held that an amendment of substance to a charging information will be allowed no later than
       thirty days prior to the omnibus date, regardless of lack of prejudice to the defendant. However, that case
       was decided several years after Barnett’s charges and plea in this case. It does not constitute ineffective
       assistance of counsel for an attorney to fail to anticipate changes in the law that have not yet occurred at the
       time of representation. Frasier v. State, 267 Ind. 24, 27, 366 N.E.2d 1166, 1167 (1977). Moreover, we have
       held that Fajardo does not apply retroactively on collateral review. See Leatherwood v. State, 880 N.E.2d 315
       (Ind. Ct. App. 2008), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3010 | February 7, 2020                    Page 6 of 13
       Further, in certain circumstances, the State can dismiss the initial information

       and then refile it with additional charges after the omnibus date has passed.

       See, e.g., Mendoza v. State, 869 N.E.2d 546 (Ind. Ct. App. 2007), trans. denied

       (State’s dismissal of original charges and refiling of new charges after omnibus

       date had passed was permissible where State was not attempting to circumvent

       an adverse ruling and defendant had adequate time to prepare for trial on new

       charge).


[11]   Barnett has failed to point to any evidence demonstrating anything other than

       that his trial counsel logically and reasonably evaluated the circumstances at the

       time when he advised Barnett with respect to his plea, and he has failed to show

       that a defense was overlooked or compromised and that the defense would

       likely have changed the outcome of the proceeding. Accordingly, we cannot

       say the post-conviction erred in concluding that Barnett’s trial counsel was not

       ineffective.


                             II. Assistance of Appellate Counsel
[12]   Next, Barnett asserts that his appellate counsel was ineffective for failing to

       raise issues that were stronger than the ones raised. Because the strategic

       decision regarding which issues to raise on appeal is one of the most important

       decisions to be made by appellate counsel, counsel’s failure to raise a specific

       issue on direct appeal rarely constitutes ineffective assistance. Brown v. State,

       880 N.E.2d 1226, 1230 (Ind. Ct. App. 2008), trans. denied. “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
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3010 | February 7, 2020   Page 7 of 13
       most a few key issues.’” Walker v. State, 988 N.E.2d 1181, 1191 (Ind. Ct. App.

       2013) (quoting Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997)), trans. denied.

       Accordingly, on review, 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. To evaluate whether appellate counsel

       performed deficiently by failing to raise an issue on appeal, we apply a two-part

       test: (1) whether the unraised issue is significant and obvious from the face of

       the record, and (2) whether the unraised issue is “clearly stronger” than the

       raised issues. Walker, 988 N.E.2d at 1191.


[13]   Barnett first alleges his appellate counsel failed to raise a violation of Blakely v.

       Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Under

       Blakely and Indiana’s former sentencing scheme, trial courts could enhance a

       sentence above the presumptive based only on those facts that were established

       in one of several ways: (1) as a fact of prior conviction; (2) by a jury beyond a

       reasonable doubt; (3) when admitted by a defendant; and (4) in the course of a

       guilty plea where the defendant waived his or her Sixth Amendment rights and

       stipulated to certain facts or consented to judicial factfinding. Trusley v. State,

       829 N.E.2d 923, 925 (Ind. 2005).


[14]   In sentencing Barnett, the trial court noted as aggravating circumstances that he

       had a criminal history; that repeated attempts to reform had failed; that he fled

       the jurisdiction; that he violated his position of trust with both victims; that the

       victims were impacted by this crime, and that he had molested one of the

       victims on numerous other occasions. Barnett claims that, with the exception

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3010 | February 7, 2020   Page 8 of 13
       of the violation of trust, he admitted nothing else and was sentenced in

       violation of Blakely, which his appellate counsel should have raised in his

       appeal.


[15]   On direct appeal, counsel raised two issues: the inappropriateness of Barnett’s

       sentence and the court’s failure to consider the significant mitigating

       circumstances of acceptance of responsibility and remorse. At the evidentiary

       hearing on the post-conviction petition, appellate counsel testified that Barnett’s

       criminal history, failed reformation attempts, and fleeing were included in his

       presentence investigation report and that counsel did not believe there were any

       Blakely issues because those factors were admitted in the presentence report.

       Indeed, the presentence report contains Barnett’s criminal history, reveals

       numerous failed rehabilitation opportunities, and indicates he fled from the

       state following his commission of these offenses and he had molested the victim

       several times in the past, as well as containing comments concerning the lasting

       impact of these offenses upon the victims. At sentencing, the court asked

       Barnett if he had read the presentence report and whether he had any additions

       or corrections. Barnett stated that he had read the report and that he had no

       additions or corrections. If a defendant confirms the accuracy of a presentence

       report when given an opportunity to contest it, such confirmation amounts to

       an admission of information contained in the report for Blakely purposes.

       Sullivan v. State, 836 N.E.2d 1031, 1036 (Ind. Ct. App. 2005). Moreover,

       Barnett admitted his violation of trust at his sentencing hearing. Thus, any

       claim on appeal that these aggravating factors were not proper under Blakely


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3010 | February 7, 2020   Page 9 of 13
       would have failed. In short, the unraised Blakely issue was not clearly stronger

       than the issues raised by appellate counsel. Accordingly, Barnett has failed to

       demonstrate that his appellate counsel performed deficiently in this respect.


[16]   Barnett also claims his appellate counsel was ineffective for not asserting certain

       sentencing issues he alleges are stronger than those raised by counsel on appeal,

       including the trial court’s use of an improper aggravator and its consideration of

       his criminal history as a significant aggravator.


[17]   First, Barnett argues his appellate counsel was ineffective for failing to raise the

       issue of the abuse of the trial court’s discretion in identifying victim impact as

       an aggravating factor because the court did not explain how the harm suffered

       by the victims exceeded that which other victims of child molesting and battery

       with a deadly weapon would endure.


[18]   Generally, the impact that a victim or a family experiences as a result of a

       particular offense or offenses is accounted for in the advisory sentence.

       Simmons v. State, 746 N.E.2d 81, 91 (Ind. Ct. App. 2001), trans. denied.

       Therefore, to validly use victim impact evidence to enhance a sentence, the trial

       court must explain why the impact in the particular case exceeds that which is

       normally associated with the offense or offenses. Id.


[19]   The trial court heard the testimony of Williams and E.G. at sentencing and

       considered the impact these offenses had on them as an aggravating factor but

       did not explain why the impact suffered by them exceeded that which is

       normally associated with these crimes. Therefore, we agree with Barnett that

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3010 | February 7, 2020   Page 10 of 13
       the trial court improperly relied upon that impact as an aggravating factor when

       it sentenced him. However, even when a trial court improperly applies an

       aggravator, a sentence enhancement may be upheld if other valid aggravators

       exist. Edrington v. State, 909 N.E.2d 1093, 1097 (Ind. Ct. App. 2009), trans.

       denied. Moreover, a single aggravating factor is sufficient to support an

       enhanced sentence. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008).

       Despite the trial court’s improper reliance on the victim impact, it found several

       other valid aggravating circumstances to warrant an enhanced sentence. This

       unraised issue concerning a single aggravator was not clearly stronger than the

       issues raised by appellate counsel; Barnett has not met his burden of

       demonstrating that his appellate counsel performed deficiently.


[20]   Barnett’s second argument appears to be that appellate counsel should have

       raised the allegedly stronger argument that his criminal history is not a

       significant aggravator because, although lengthy, his criminal history contains

       no sex offense arrests or convictions.


[21]   Barnett’s adult criminal history includes a misdemeanor conviction in 1991 as

       well as a reckless driving conviction in West Virginia; two misdemeanor

       convictions in 1993; two misdemeanor convictions and a probation violation in

       1994; a conviction in 1995 of a felony that he committed while on probation in

       another cause; a failure to appear in 1995; an infraction of driving while

       suspended in 1999; a misdemeanor conviction and home detention privileges

       revocation in 2000; service of jail time twice in 2001 for contempt of court; one

       felony conviction, for which he was originally sentenced to twelve years in the

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3010 | February 7, 2020   Page 11 of 13
       DOC, and one misdemeanor conviction in 2002; conviction of possession of

       cocaine and failure to identify in Texas in 2003; and fleeing the jurisdiction in

       2003 after committing the instant offenses. This criminal history was detailed

       in the presentence report, the accuracy of which Barnett admitted at his

       sentencing hearing.


[22]   In total, Barnett has two felony convictions and at least seven misdemeanors.

       Moreover, his record indicates he has been undeterred by punishment for his

       criminal behavior. Even a limited criminal history can be considered a valid

       aggravator. Atwood v. State, 905 N.E.2d 479, 488 (Ind. Ct. App. 2009), trans.

       denied. In light of this, we cannot say that Barnett’s proposed issue is clearly

       stronger than the issues raised by appellate counsel. Consequently, counsel’s

       representation on appeal was not ineffective.


                       III. Adoption of Findings and Conclusions
[23]   In his brief, Barnett asserts the post-conviction court erred when it adopted the

       State’s proposed findings of fact and conclusions of law. Appellant’s Br. p. 11.

       Barnett provides no further argument or citations to authority in support of this

       contention. Our Supreme Court has observed, “[i]t is not uncommon for a trial

       court to enter findings that are verbatim reproductions of submissions by the

       prevailing party.” Prowell v. State, 741 N.E.2d 704, 708 (Ind. 2001). And

       Indiana courts are not prohibited from this practice. See id. at 709. Moreover,

       we accept the findings of fact unless they are clearly erroneous. Kistler, 936

       N.E.2d at 1261. Here, the post-conviction court’s findings of fact are supported


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3010 | February 7, 2020   Page 12 of 13
       by the evidence, and the findings support the conclusions of law. Barnett has

       not demonstrated error on this issue.


                                              IV. Sentencing
[24]   In his final issue, Barnett presents argument on the trial court’s abuse of its

       discretion when it sentenced him. However, Barnett’s appellate counsel raised

       sentencing issues in his direct appeal; accordingly, these claims are not available

       in a post-conviction proceeding. See Sweet v. State, 10 N.E.3d 10, 13 (Ind. Ct.

       App. 2014) (if issue was known and available, but not raised on direct appeal, it

       is waived; if it was raised on appeal, but decided adversely, it is res judicata).

       Furthermore, Barnett raised, and this Court addressed, the same issues in the

       current appeal under the umbrella of ineffective assistance of appellate counsel.


                                                Conclusion
[25]   Based on the foregoing, we conclude the post-conviction court properly denied

       Barnett’s petition for relief.


[26]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3010 | February 7, 2020   Page 13 of 13
