MEMORANDUM DECISION                                                FILED
Pursuant to Ind. Appellate Rule 65(D), this                    Oct 18 2016, 7:48 am

Memorandum Decision shall not be regarded as                       CLERK
precedent or cited before any court except for the             Indiana Supreme Court
                                                                  Court of Appeals
purpose of establishing the defense of res judicata,                and Tax Court

collateral estoppel, or the law of the case.



APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Lynn K. C. Sines                                         Gregory F. Zoeller
New Castle, Indiana                                      Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Lynn K. C. Sines,                                        October 18, 2016

Appellant-Petitioner,                                    Court of Appeals Cause No.
                                                         91A02-1601-PC-113
        v.                                               Appeal from the White Superior
                                                         Court
State of Indiana,                                        The Honorable Robert Mrzlack,
                                                         Judge
Appellee-Respondent.
                                                         Cause No. 91D01-1409-PC-3




Riley, Judge.




Court of Appeals of Indiana | Memorandum Opinion 91A02-1601-PC-113 | October 18, 2016   Page 1 of 15
                                   STATEMENT OF THE CASE

[1]   Appellant-Petitioner, Lynn Sines (Sines), pro se, appeals from the denial of his

      petition for post-conviction relief.


[2]   We affirm.


                                                    ISSUES

      Sines raises two issues on appeal, which we restate as the following:

      (1) Whether Sines received ineffective assistance of counsel; and

      (2) Whether Sines’ guilty plea was voluntary.


                           FACTS AND PROCEDURAL HISTORY

[3]   On New Year’s Eve of 2012, Robert Mitchell (Mitchell) had a party at his

      house. A.M., Mitchell’s fifteen-year-old sister, Sines, Sines’ girlfriend, and

      several others were present. Everyone was drinking alcohol and smoking

      marijuana. A.M. fell asleep in the living room, and around 1:00 a.m., Mitchell

      carried her into his bedroom and covered her with a blanket. Mitchell and his

      girlfriend slept on the couch, while Sines and his girlfriend slept on the recliner.

      At around 5:00 a.m., Mitchell woke up to get a drink in the kitchen and

      observed that Sines’ girlfriend was alone on the recliner. While in the kitchen,

      Mitchell saw Sines walk out of his bedroom and go into the bathroom.

      Mitchell went into his bedroom and briefly spoke to A.M., who stated “My

      pants are down, he was on top of me, and my vagina hurts.” (Appellant’s Exh.

      3). Mitchell confronted Sines and accused him of rape. A fight ensued.


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[4]   On January 1, 2012, the police arrested Sines. After being Mirandized, Sines

      confessed that he had sexual intercourse with A.M. On the same day, the State

      filed an Information, charging Sines with sexual misconduct with a minor, a

      Class B felony, Ind. Code § 35-42-4-9(a)(1). Thereafter, the parties entered into

      a plea agreement, in which Sines agreed to plead guilty and the State agreed to

      cap his sentence at ten years. On March 29, 2012, the following exchange

      occurred:

              TRIAL COURT: [] Sines, is this your understanding of the plea
              agreement?


              [SINES]: Yes.


              TRIAL COURT: Other than the plea agreement as stated, has anyone
              made any promises to you to convince you to plead guilty?


              [SINES]: No.


              TRIAL COURT: Has anyone forced you to plead guilty?


              [SINES]: They tried to, but no.


              TRIAL COURT: Okay. Who tried to force you?


              [SINES]: That don’t matter.


      (Appellant’s Exh. 5, p. 4). After swearing him in, the trial court informed Sines

      of his rights and the penal consequence of pleading guilty. The factual basis of

      the crime was established as follows: Sines admitted that on January 1, 2012, he


      Court of Appeals of Indiana | Memorandum Opinion 91A02-1601-PC-113 | October 18, 2016   Page 3 of 15
      was at least twenty-one years old and he had sexual intercourse with A.M.,

      who was fifteen-years old. Sines indicated that he read and discussed the plea

      agreement with his counsel and he intended to plead guilty. The trial court

      took Sines’ guilty plea under advisement and set a sentencing hearing for April

      25, 2012. At the sentencing hearing, Sines was given the opportunity to make

      changes to the pre-sentencing report (PSI) and present additional evidence.

      Despite a significant alteration on the version of events in the PSI—where Sines

      claimed A.M. woke him up from the living room; invited him to the bedroom

      for sexual intercourse; and Mitchell confronted him and pointed a gun at him—

      Sines did not present additional evidence. Before accepting Sines’ guilty plea,

      the trial court asked Sines whether he wished to make a final statement through

      counsel, and Sines answered, that he did not. Subsequently, the trial court

      accepted Sines’ guilty plea and sentenced him to ten years in the Department of

      Correction. Sines’ sentence was to be served consecutively to other causes.

      Between 2012 to 2016, Sines filed eleven motions to modify his sentence. On

      February 22, 2016, Sines filed another motion arguing that the trial court

      should modify his sentence by suspending the remainder of his sentence to

      home detention and probation. On February 26,2016, the trial court denied

      Sines’ motion. Sines appealed. In our memorandum decision, we affirmed the

      trial court. See Sines v. State, No. 91A05–1603–CR–544, (Ind. Ct. App. Aug. 3,

      2016).


[5]   On September 8, 2014, Sines filed a petition for post-conviction relief. The

      State filed its response on October 9, 2014. On October 10, 2015, Sines, pro-se,


      Court of Appeals of Indiana | Memorandum Opinion 91A02-1601-PC-113 | October 18, 2016   Page 4 of 15
      amended his petition, alleging, in part, that his trial counsel failed to investigate

      the threats which induced his plea. In a supporting affidavit, Sines claimed that

      on January 1, 2012, the day of the offense, he had been threatened at gunpoint

      by Mitchell to “admit to the crime or [his] life would be in danger.”

      (Appellant’s App. p. 46). Sines further stated that he “did not want to plea[d]

      guilty” and that he “attempted to tell [the] Judge [] about the threats.”

      (Appellant’s App. pp. 46-47). Additionally, Sines claimed that his trial counsel

      failed to present exculpatory DNA evidence, an alibi witness, and challenge the

      sufficiency of the medical evidence.


[6]   An evidentiary hearing on Sines’ post-conviction petition was held on

      September 29, 2015. Sines first presented testimony from a doctor who had

      reviewed A.M.’s medical records in relation to the incident. The doctor

      indicated that the bruise on A.M.’s hymen was the “result of blunt force

      penetrating the hymen.” (PCR Tr. p. 11). The doctor indicated that the bruise

      on A.M.’s hymen could have been caused by “a whole variety of things.”

      (PCR Tr. p. 11). Next, Sines called his trial counsel. Sines first asked his

      counsel why he did not contact any expert witnesses to review A.M.’s medical

      report, and counsel responded by stating that “[t]here was no dispute as far as

      what had taken place that would require a medical expert to testify.” (PCR Tr.

      p. 15). On further inquiry about what he meant, Sines’ trial counsel stated that

      Sines had confessed, twice, to the police that he had sexual intercourse with

      A.M., and therefore delving into DNA evidence would be a waste of time.

      Sines then asked counsel why he did not establish a viable defense, and counsel


      Court of Appeals of Indiana | Memorandum Opinion 91A02-1601-PC-113 | October 18, 2016   Page 5 of 15
remembered that Sines knew that A.M. was at least fifteen-years old. With

regards to a possible alibi, trial counsel recalled that Sines’ girlfriend claimed

that Sines was with her, but counsel did not believe this claim could support a

viable alibi since Sines had confessed to the crime and other evidence placed

Sines in the bedroom with A.M. At the close of the evidence, the post-

conviction court took the matter under advisement. On December 7, 2015,

Sines filed his findings of fact and conclusions of law. On December 30, 2015,

the post-conviction court issued an order denying Sines’ post-conviction relief

and stated, in part:

        1. That on March 29, 2012, [Sines] entered a plea of guilty to [s]exual
           [m]isconduct with a [m]inor, a Class B [f]elony, pursuant to a
           written [plea] agreement. At the plea hearing [Sines] was asked if
           he signed the plea agreement, and he answered yes; [Sines] was
           asked if he understood the [plea] agreement, and he answered yes;
           [Sines] was asked if anyone made any promises to him other than
           the plea agreement to convince him to plead guilty, and he
           answered no; [Sines] was asked if anyone forced him to plead
           guilty, and he answered “they tried to, but no.” The [trial court]
           then asked [Sines] who tried to force him and he answered “That
           don’t matter.” [Sines], at the [e]videntiary [h]earing, argued that
           threats made to him by others on the date the offense was
           committed, were threats made to convince him to plead guilty and
           his guilty plea was therefore not freely, voluntarily, or intelligently
           made.


        2. At the plea hearing [Sines] was advised of the charges pending
           against him, his rights to counsel at all stages of a criminal case,
           and he was advised of his constitutional rights that he had and that
           he would be giving up if he entered a plea of guilty. At the plea
           hearing [Sines] was advised of the statute defining the offense and
           the possible penalties he faced if he had been convicted. [Sines]
           stated that he understood the charge pending against him, the

Court of Appeals of Indiana | Memorandum Opinion 91A02-1601-PC-113 | October 18, 2016   Page 6 of 15
            statute defining the offense, the possible penalties he faced, his
            rights to an attorney and his rights that he would be giving up if he
            entered a plea of guilty. At the plea hearing [Sines] also
            acknowledged that he understood that by pleading guilty he would
            be admitting as true the facts set out in the charging information.
            At the plea hearing [Sines] acknowledged that his [plea] of guilty
            was his own free and voluntary act and that by pleading guilty he
            was telling the [trial court] that he committed the offense.


        3. Following [Sines’] plea of guilty on March 29, 2012, the [trial
           court] took [Sines’] plea of guilty and the plea agreement under
           advisement and set a [s]entencing [h]earing for April 25, 2012.


        4. On April 25, 2012, [Sines] appeared in person and by counsel for a
           [s]entencing [h]earing. He was given the opportunity to make any
           changes to the pre-sentence investigation report and to present any
           evidence. No evidence was presented by [Sines]. [Sines], through
           counsel[,] was asked if he wished to make a final statement on
           behalf of [Sines], and counsel asked the [trial court] to accept the
           plea agreement. Before accepting [Sines’] guilty plea and plea
           agreement the [trial court] asked the [Sines] if there was anything
           he would like to say on his own behalf, and he answered no. The
           [trial court] then accepted [Sines’] guilty plea and sentenced [Sines]
           pursuant to the plea agreement.


        5. To establish a violation of the Sixth Amendment right to effective
           assistance of counsel, a petitioner must establish that (1) counsel’s
           performance fell below an objective standard of reasonableness
           based on prevailing professional norms; and (2) there is a
           reasonable probability that, but for counsel’s errors, the result of
           the proceeding would have been different. Strickland v. Washington,
           466 U.S. 668, 687 (1984). “A reasonable probability is a
           probability sufficient to undermine confidence in the outcome.” Id.
           at 694.


        6. The record of the plea hearing and the sentencing hearing fails to
           support [Sines’] allegation that his guilty [plea] was not freely,
           voluntarily and intelligently made, and that record speaks for itself.

Court of Appeals of Indiana | Memorandum Opinion 91A02-1601-PC-113 | October 18, 2016   Page 7 of 15
              7. [Sines] has failed through the evidence and arguments to establish
                 that his counsel’s performance fell below the objective standard of
                 reasonableness based upon prevailing professional norms.


      (Appellant’s App. pp. 87-88).


[7]   Sines now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION

                                            I. Standard of Review


[8]   Before discussing Sines’ allegations of error, we note that Sines is proceeding

      pro se, such litigants are held to the same standard as trained counsel and are

      required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind.

      Ct. App. 2004), trans. denied.


[9]   In a post-conviction proceeding, the petitioner must establish the grounds for

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

      Overstreet v. State, 877 N.E.2d 144, 151 (Ind. 2007). When challenging the

      denial of post-conviction relief, the petitioner appeals from a negative judgment.

      Overstreet, 877 N.E.2d at 151. To prevail, the petitioner must show that the

      evidence leads unerringly and unmistakably to a decision opposite that reached

      by the post-conviction court. Id. We will disturb the post-conviction court’s

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

      conclusion and the post-conviction court reached the opposite conclusion.

      Henley v. State, 881 N.E.2d 639, 643-44 (Ind. 2008).



      Court of Appeals of Indiana | Memorandum Opinion 91A02-1601-PC-113 | October 18, 2016   Page 8 of 15
[10]   Where the post-conviction court enters findings of fact and conclusions of law,

       as in the instant case, we do not defer to the post-conviction court’s legal

       conclusions; the post-conviction court’s findings and judgment will be reversed,

       however, only upon a showing of clear error that leaves us with a definite and

       firm conviction that a mistake has been made. Overstreet, 877 N.E.2d at 151.


                                II. Ineffective Assistance of Trial Counsel

[11]   The standard by which we review claims of ineffective assistance of counsel is

       well established. In order to prevail on a claim of this nature, a defendant must

       satisfy a two-pronged test, showing that: (1) his counsel’s performance fell

       below an objective standard of reasonableness based on prevailing professional

       norms; and (2) there is a reasonable probability that, but for counsel’s errors, the

       result of the proceeding would have been different. Johnson v. State, 832 N.E.2d

       985, 996 (Ind. Ct. App. 2005) (citing Strickland, 466 U.S. at 690, 694) reh’g

       denied, trans. denied. The two prongs of the Strickland test are separate and

       independent inquiries. Johnson, 832 N.E.2d at 996. Thus, “[i]f it is easier to

       dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice .

       . . that course should be followed.” Timberlake v. State, 753 N.E.2d 591, 603

       (Ind. 2001) (quoting Strickland, 466 U.S. at 697), reh’g denied, cert. denied, 537

       U.S. 839 (2002).


[12]   Counsel is afforded considerable discretion in choosing strategy and tactics and

       we will accord those decisions deference. Id. A strong presumption arises that

       counsel rendered adequate assistance and made all significant decisions in the

       exercise of reasonable professional judgment. Id. The Strickland Court
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       recognized that even the finest, most experienced criminal defense attorneys

       may not agree on the ideal strategy or the most effective way to represent a

       client. Id. Isolated mistakes, poor strategy, inexperience, and instances of bad

       judgment do not necessarily render representation ineffective. Id. Furthermore,

       we will not speculate as to what may or may not have been advantageous trial

       strategy as counsel should be given deference in choosing a trial strategy which,

       at the time and under the circumstances, seems best. Johnson, 832 N.E.2d at

       997.


                                                    A. Guilty Plea

[13]   In his amended PCR petition, Sines alleged that his trial counsel was ineffective

       because he failed to investigate the threats that prompted his plea. According to

       Sines, he only pled guilty because he received death threats from Mitchell on

       the day he committed the offense. 1


[14]   Where a petitioner pleads guilty and asserts ineffective assistance of counsel,

       the type of prejudice that must be demonstrated depends upon the type of




       1
         Sines also argues that his plea was not voluntary. Specifically, Sines argues that he “did not want to plea[d]
       guilty” and he “attempted to tell the trial court about the threats.” (Appellant’s App. pp. 46-47).
       Voluntariness in Indiana practice “focuses on whether the defendant knowingly and freely entered the plea,
       in contrast to ineffective assistance, which turns on the performance of counsel and resulting prejudice.”
       Cornelious v. State, 846 N.E.2d 354, 358 (Ind. Ct. App. 2006), trans. denied. Because Sines’ voluntariness
       argument is distinct from ineffective assistance of counsel, we choose to address this claim separately.

       Court of Appeals of Indiana | Memorandum Opinion 91A02-1601-PC-113 | October 18, 2016             Page 10 of 15
       claim. There are two categories of claims: “(1) an unutilized defense or failure

       to mitigate a penalty or (2) an improper advisement of penal consequences.”

       Willoughby v. State, 792 N.E.2d 560, 563 (Ind. Ct. App. 2003) (citing Segura v.

       State, 749 N.E.2d 496, 507 (Ind. 2001)). Claims that counsel overlooked or

       impaired a defense require that the petitioner establish that a defense was

       overlooked or impaired and that there was a reasonable probability of success at

       trial. Segura, 749 N.E.2d at 503; Reynolds v. State, 783 N.E.2d 357, 358 (Ind. Ct.

       App. 2003).


[15]   At Sines’ initial interview, Sines informed the police that he woke up in

       Mitchell’s bed and A.M. was lying next to him. Sines stated that he was still

       drunk from the night’s party and admitted that he had sexual intercourse with

       A.M. Sines claimed that it is only when he climaxed that he realized that A.M.

       was not his girlfriend. Sines stated that he left the bedroom and went to use the

       bathroom. At that point, Mitchell went into the bedroom, spoke to A.M., and

       when he exited his bedroom, Mitchell confronted him and a fight ensued. As

       noted, in the PSI, Sines altered his version of events of January 1st. Sines’

       second story was that he was afraid about how his girlfriend would feel about

       him being unfaithful. Sines claimed that A.M. woke him up in the living room

       and invited him to the bedroom, and further requested him to have sex with

       her. Sines stated that when Mitchell confronted him, he pointed a gun at him.


[16]   At the post-conviction hearing, Sines’ trial counsel partially recalled Sines’

       statement that Mitchell pointed a gun at him, but counsel did not perceive this

       as a threat to induce a guilty plea. Even if we were to find that counsel

       Court of Appeals of Indiana | Memorandum Opinion 91A02-1601-PC-113 | October 18, 2016   Page 11 of 15
       rendered deficient performance by recommending that Sines accept the plea

       agreement, Sines was not prejudiced. The evidence against Sines on the instant

       offense was overwhelming and Sines made no showing that there was a

       reasonable possibility that he would not have been convicted had he gone to

       trial. As noted, in Sines’ initial interview, he admitted to the crime. Further,

       although A.M. could not recall the sex act, she remembered Sines being in the

       bedroom with her, being on top of her, kissing her, and Mitchell confronting

       Sines. Sines’ second confession was in a letter addressed to the investigating

       officer, where he pointed out that statements in his initial interview were a “lie”

       and that it was A.M. who asked him to have sex with her, and he “agreed as

       [he] was still intoxicated by the drugs and alcohol.” (PCR Tr. p. 28). The letter

       also described him leaving A.M. in the bedroom and being confronted by

       Mitchell.


[17]   Here, we cannot conclude that the outcome of Sines’ trial would have been any

       different had he rejected the plea agreement and proceeded to trial, and

       therefore, Sines was not prejudiced by trial counsel’s performance. See Segura,

       749 N.E.2d at 507. Moreover, Sines’ self-serving statement that he would not

       have otherwise pled guilty is insufficient to show that the post-conviction court

       erred when it ruled on this issue. Sines has not demonstrated that he was

       denied the effective assistance of trial counsel.


                                           B. Failure to Investigate

[18]   Sines additionally argues that his trial counsel was ineffective by failing to

       present exculpatory DNA evidence, presenting an alibi witness, and challenging
       Court of Appeals of Indiana | Memorandum Opinion 91A02-1601-PC-113 | October 18, 2016   Page 12 of 15
       the sufficiency of A.M.’s medical report. We have held before that

       “establishing failure to investigate as a ground for ineffective assistance of

       counsel requires going beyond the trial record to show what investigation, if

       undertaken, would have produced.” McKnight v. State, 1 N.E.3d 193, 201 (Ind.

       Ct. App. 2013) (citing Woods v. State, 701 N.E.2d 1208, 1214 (Ind. 1998), cert.

       denied (1999)). “This is necessary because success on the prejudice prong of an

       ineffectiveness claim requires a showing of a reasonable probability of affecting

       the result.” Id. (quoting Woods, 701 N.E.2d at 1214).


[19]   At Sines’ post-conviction hearing, Sines’ trial counsel stated that there was no

       identity issue and delving into the DNA evidence would be “a waste of time.”

       (PCR Tr. p. 31). Specifically, trial counsel stated that Sines had made several

       confessions to the police admitting to the offense. With regard to a possible

       defense alibi, trial counsel recalled that Sines’ girlfriend had claimed that Sines

       was by her side and he never left the recliner in the living room; however,

       counsel did not believe this assertion could support a viable alibi because Sines

       was seen exiting the victim’s bedroom. Finally, with respect to the medical

       evidence, at the evidentiary hearing, Sines presented evidence from a doctor

       who had reviewed A.M.’s medical records. The doctor testified A.M.’s bruised

       hymen was a result of a “blunt force” and that it could have been caused by

       anything. (PCR Tr. p. 11). Despite his claim, we note that A.M.’s bruised

       hymen is consistent with sexual intercourse. Sines admitted, twice, that he had

       sexual intercourse with A.M. Thus, Sines’ suggestion that the medical report

       did not prove that he had sexual intercourse with A.M. is without merit.


       Court of Appeals of Indiana | Memorandum Opinion 91A02-1601-PC-113 | October 18, 2016   Page 13 of 15
                                          III. Voluntariness of Plea

[20]   Lastly, Sines also seems to argue that his guilty plea was not knowingly,

       voluntarily, and intelligently made. A trial court may not accept a plea of guilty

       unless it has determined that the plea is voluntary. Richardson v. State, 800

       N.E.2d 639, 643 (Ind. Ct. App. 2003) (citing I.C. § 35-35-1-3). Before accepting

       a guilty plea, the trial court must take steps to insure that the defendant’s plea is

       voluntary. Id. (citing I.C. §§ 35-35-1-2; -3). “Generally speaking, if a trial court

       undertakes these steps, a post-conviction petitioner will have a difficult time

       overturning his guilty plea on collateral attack.” Id. (citing State v. Moore, 678

       N.E.2d 1258, 1265 (Ind. 1997), cert. denied).


[21]   In the instant case, the colloquy between the trial court and Sines demonstrates

       that Sines’ plea was voluntary. At the plea hearing, Sines was asked if he

       signed the plea agreement, and he answered yes; Sines was asked if he

       understood the plea agreement, and he answered yes; Sines was asked if anyone

       made any promises to him other than the plea agreement to convince him to

       plead guilty, and he answered no; Sines was asked if anyone forced him to

       plead guilty, and he answered, “they tried to, but no.” (Appellant’s Exh. 5, p.

       4). The trial court then asked Sines who tried to force him and he answered,

       “That don’t matter.” (Appellant’s Exh. 5, p. 4). Sines, at the evidentiary

       hearing, argued he was in fear for his life after Mitchell pointed a gun at him,

       and his guilty plea was therefore not voluntarily or intelligently made. Despite

       Sines’ assertion that Mitchell’s threats impelled him to plead guilty, at the post-

       conviction hearing, Sines’ counsel testified that he did not believe the threats

       Court of Appeals of Indiana | Memorandum Opinion 91A02-1601-PC-113 | October 18, 2016   Page 14 of 15
       compelled Sines to plead guilty, that he went over the plea agreement with

       Sines prior, and the trial court did the same before Sines pled guilty. Based on

       the foregoing, we conclude that the post-conviction court did not err when it

       found that Sines’ guilty plea was voluntary.


                                               CONCLUSION

[22]   Based on the foregoing, we conclude that Sines did not receive ineffective

       assistance of trial counsel, and his guilty plea was voluntary.


[23]   Affirmed.


[24]   Bailey, J. and Barnes, J. concur




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