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

ATTORNEY FOR APPELLANT:                                      Mar 28 2013, 9:16 am


HILARY BOWE RICKS
Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

DAYMON HOLBERT,                                  )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 49A05-1209-PC-455
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Steven J. Rubick, Magistrate
                        The Honorable Kurt M. Eisgruber, Judge
                           Cause No. 49G01-0601-PC-10054




                                       March 28, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                          Case Summary and Issues

         Daymon Holbert appeals the post-conviction court’s denial of his petition for post-

conviction relief. Holbert raises two issues on appeal: 1) whether he was denied the

effective assistance of his trial counsel; and 2) whether he was denied the effective

assistance of his appellate counsel. Concluding that Holbert was not denied the effective

assistance of trial or appellate counsel, we affirm.

                                         Facts and Procedural History

         In 2006, Holbert was charged with two counts of murder and one of robbery. One

of the murder charges was eventually dropped. In 2007, Holbert and a co-defendant,

Jacques Johnson, were tried to a jury in a joint trial. Holbert was found guilty on both the

murder and robbery charges.1 Holbert was sentenced to sixty years on the murder count

and twenty years on the robbery count, to be served concurrently. Holbert filed a direct

appeal challenging the admission of a portion of testimony, and we affirmed his

conviction. Holbert v. State, 900 N.E.2d 85 (Ind. Ct. App. 2008), trans. denied. In 2009,

Holbert filed a pro se petition for post-conviction relief, which was amended in 2010. A

hearing on the petition was held in November 2011.2 In August 2012, the court issued

findings of facts and conclusions of law and denied Holbert’s petition. This appeal

followed.




         1
             Johnson was also found guilty of the counts charged against him.
         2
          Holbert’s brief states that both the original and amended petitions were filed pro se, although we note that
Holbert was represented at the hearing by the same counsel who filed his brief in this appeal.
                                                          2
                                 Discussion and Decision

                                  I. Standard of Review

       To prevail on appeal from the denial of post-conviction relief, the petitioner must

show that the evidence is without conflict and leads unerringly and unmistakably to a

conclusion opposite that reached by the post-conviction court. Thacker v. State, 715

N.E.2d 1281, 1284 (Ind. Ct. App. 1999), trans. denied.          A post-conviction court’s

findings and judgment will be reversed only upon a showing of clear error, which is error

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

Benefield v. State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011). We accept the post-

conviction court’s findings of fact unless they are clearly erroneous, but we do not defer

to the post-conviction court’s conclusions of law. Id. We examine only the probative

evidence and reasonable inferences that support the post-conviction court’s determination

and we do not reweigh the evidence or judge the credibility of the witnesses. Conner v.

State, 711 N.E.2d 1238, 1245 (Ind. 1999), cert. denied, 531 U.S. 829 (2000).

       We review claims of ineffective assistance of counsel under the two prong test set

forth in Strickland v. Washington, 466 U.S. 668 (1984). Bieghler v. State, 690 N.E.2d

188, 192 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998). The same standard applies to

claims of ineffective assistance of trial or appellate counsel. Id. To prevail on a claim of

ineffective assistance of counsel, the petitioner must show that his counsel’s performance

was deficient and that the lack of reasonable representation prejudiced him. Randolph v.

State, 802 N.E.2d 1008, 1013 (Ind. Ct. App. 2004), trans. denied. To satisfy the first

prong, the petitioner must show that counsel’s performance was deficient in that

counsel’s representation fell below an objective standard of reasonableness and that
                                             3
counsel committed errors so serious that petitioner did not have the “counsel” guaranteed

by the Sixth Amendment. Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). To show

prejudice, the petitioner must show a reasonable probability that, but for counsel’s errors,

the result of the proceeding would have been different. Id. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.         Pruitt v. State, 903

N.E.2d 899, 906 (Ind. 2009).

       Under this standard, judicial scrutiny of counsel’s performance must be highly

deferential, and there is a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.       Bieghler, 690 N.E.2d at 192 (citing

Strickland, 466 U.S. at 698). Counsel is afforded considerable discretion in choosing

strategy and tactics and we will accord that decision deference. Randolph, 802 N.E.2d at

1013. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do

not necessarily render representation ineffective. Id. Additionally, ineffective 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. One reason for this is that the

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

made by appellate counsel. Id.

       Finally, we note that the two prongs of the Strickland test are separate and

independent inquiries. Therefore, if it is easier to dispose of an ineffectiveness claim on

the ground of lack of sufficient prejudice, we may determine the prejudice prong first

without inquiring into whether counsel’s performance was adequate.           Thacker, 715

N.E.2d at 1284.


                                             4
                                              II. Trial Counsel

        We note at the outset that the State has failed to file an appellee’s brief in this

appeal. When, as here, the appellee does not file a brief, we apply a less stringent

standard of review and will reverse the trial court if the appellant establishes prima facie

error. State v. C.D., 947 N.E.2d 1018, 1021 (Ind. Ct. App. 2011). “Prima facie” is

defined as “at first sight, on first appearance, or on the face of it.” Id. This rule is not

intended to benefit the appellant, but rather to relieve us of the burden of developing

arguments on behalf of the appellee. Id. The burden of demonstrating trial court error

remains with the appellant. Id.

        Holbert first argues that he was denied the effective assistance of his trial counsel

because he was not informed of a plea agreement that was offered by the State. At the

post-conviction relief hearing, testimony from Holbert’s trial attorneys as well as Holbert

himself indicated that there was a plea agreement offered at some point, but the testimony

was inconsistent as to the terms and timing, and there was no written evidence of a plea

offer.3 Holbert contests the lower court’s finding that there is no positive evidence that a

firm offer was actually made. While we might lean more toward the conclusion that

some offer was made, as all parties remember some version of an offer, it is true that

there was no concrete evidence or consistent testimony.                          Further, without physical

evidence of an offer, whether there was an offer or what its terms were comes down to

weighing the credibility of witnesses, and we do not reweigh that evidence on appeal.

More importantly, regardless of where we would come down on the issue of the existence


        3
            Holbert testified that, after he was sentenced, he was asked by a relative why he had not taken the plea
offer, and that was when he first learned that there had been an offer.
                                                         5
of a plea offer, we agree with the post-conviction court that there is no evidence that

Holbert would have taken the plea, assuming one was offered and communicated to him.

Because he can show no prejudice in any failure of counsel to apprise him of a plea offer,

we agree that he has failed to carry his burden regarding ineffective assistance of counsel.

       On that point, Holbert argues that it was further ineffectiveness that leads him to

be unsure of whether he would have taken the plea if communicated to him. He argues

that his counsel did not communicate to him the status of his case or the evidence against

him, and because of that failure, he would have been unable to weigh his options and

decide whether to take the plea offer. However, this argument was not developed below

and the record does not indicate how often his counsel communicated with him or how

much they told him about his case. Further, Holbert does not detail which parts of the

case or evidence against him his counsel failed to communicate to him, or what

information would have influenced his decision to take a plea. He does not outline what

it is his attorneys were supposed to have discussed with him at the time, but did not, that

would allow him to say whether he would have taken the plea. He has failed to meet the

prongs of Strickland.

                                  III. Appellate Counsel

       Holbert next argues that his appellate counsel was ineffective in failing to raise

insufficiency of the evidence for both his robbery and murder convictions in the direct

appeal. Holbert first contends that counsel should have appealed the sufficiency of the

evidence surrounding his robbery conviction, and notes that co-defendant Johnson’s

robbery conviction was reversed on appeal. See Johnson v. State, 893 N.E.2d 779 (Ind.

Ct. App. 2008), trans. denied.     Holbert takes issue with the post-conviction court’s
                                             6
conclusion that Holbert and Johnson were differently situated such that our decision as to

Johnson does not necessarily indicate that we would have decided the same way relative

to Holbert had he appealed the same issue. This conclusion seems aimed more at the

prejudice prong of the Strickland test.4

        Without disagreeing with the post-conviction court, we note that even if it could

be said with certainty at this point that we would have also reversed Holbert’s robbery

conviction had the sufficiency of the evidence supporting it been appealed, that does not

mean that Holbert would meet the deficiency prong of Strickland. In fact, the record

indicates that Holbert has not met his burden with regard to that first prong. Holbert

notes that at the post-conviction relief hearing, his appellate attorney admitted to knowing

the outcome of Johnson’s appeal. Whether intentionally or not, Holbert appears to

confuse the timeline. His appellate attorney may well know the outcome of Johnson’s

appeal now, but Johnson’s appeal was not handed down until well after Holbert’s direct

appeal was filed. Holbert’s appellate counsel did not have the benefit of the results of

Johnson’s appeal before he filed and briefed Holbert’s direct appeal. Moreover, he

testified at the hearing that he considered sufficiency of the evidence for both charges as

he was deciding what to appeal, but he did not feel that either challenge had merit. While

he may feel differently now in hindsight, that is not the standard by which we judge

counsel’s performance. The decision of what issues to raise on appeal is a strategy

decision that is left to counsel, and if counsel here considered the possible avenues and




        4
           Relevant to that prong, we also note that Holbert admits that reversal of his robbery charge alone would
have been of no benefit to him, because his murder sentence was longer and they were to be served concurrently.

                                                        7
chose the one that he felt was most meritorious and most likely to aid his client, we

cannot say that indicates deficient performance.

       Holbert also argues that appellate counsel should have raised as an issue on direct

appeal the sufficiency of the evidence supporting his murder conviction.         Although

Holbert’s brief is difficult to parse, he implies that the admission of testimony which was

appealed is also relevant to his murder charge, but that in his direct appeal we only

considered it relative to his robbery charge. In his direct appeal, he challenged the

admission of a statement by a witness.             We concluded that the statement was

inadmissible hearsay but that the error was harmless because there was sufficient other

evidence to support his conviction. Holbert, 900 N.E.2d 85 at *4. He claims here that

that same hearsay was the only evidence supporting his murder charge. We do not read

our opinion in Holbert’s direct appeal to be limited to the robbery charge. We mention

both murder and robbery in our discussion, and the issue presented was whether the trial

court abused its discretion in admitting the statement.       Once we decided that the

statement was admitted in error, had we concluded that it was the only evidence

supporting Holbert’s murder conviction, we would not have considered the error

harmless. To the extent that Holbert is attempting to re-argue his direct appeal or

supplement that argument, it is inappropriate to do so here at the post-conviction relief

stage. The issue of the hearsay statement was available on direct appeal, and indeed was

the basis for that appeal— it does not appear from either our opinion or a cursory

inspection of Holbert’s brief on direct appeal that the issue was limited to the robbery

conviction.   Holbert has not convinced us that he would have prevailed had the

sufficiency of the evidence surrounding his murder charge been directly challenged, and
                                            8
has certainly not convinced us that his appellate counsel’s performance was deficient in

the issues that counsel chose to advance on direct appeal. We are not left with a firm

conviction that a mistake has been made by the post-conviction court.

                                      Conclusion

       Concluding that Holbert was not denied the effective assistance of either trial or

appellate counsel, we affirm the post-conviction court’s denial of his petition for post-

conviction relief.

       Affirmed.

MAY, J., and PYLE, J., concur.




                                            9
