MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jul 16 2018, 10:59 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                          Curtis T. Hill, Jr.
Public Defender of Indiana                                Attorney General of Indiana

Joanna L. Green                                           Kelly A. Loy
Laura L. Volk                                             Supervising Deputy Attorney
Deidre R. Eltzroth                                        General
Lindsay Van Gorkom
Deputies Public Defender                                  Tyler G. Banks
Indianapolis, Indiana                                     Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

William Clyde Gibson,                                     July 16, 2018
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          22A01-1711-PC-2528
        v.                                                Appeal from the Floyd Superior
                                                          Court
State of Indiana,                                         The Honorable Susan L. Orth,
Appellee-Respondent.                                      Judge
                                                          Trial Court Cause No.
                                                          22D01-1703-PC-4


Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018            Page 1 of 25
      Altice, Judge


                                             Case Summary
[1]   William Clyde Gibson, III, pled guilty to the murder of Karen Hodella and was

      sentenced to sixty-five years in the Department of Correction (DOC). Gibson

      filed a petition for post-conviction relief and appeals the denial of that petition.

      He raises several issues for our review, which we consolidate and restate as

      whether the post-conviction court erred in denying his petition for relief.


[2]   We affirm.


                                   Facts & Procedural History
[3]   This appeal stems from Gibson’s murder of Hodella. However, resolution of

      this case necessitates an account of the facts and procedural history surrounding

      Gibson’s murders of two other women, Stephanie Kirk and Christine Whitis.

      As such, we set forth an account of the facts and procedural history of all three

      murders.


[4]   On October 10, 2002, Hodella met Gibson at a bar located in Jeffersonville,

      Indiana. Hodella left the bar with Gibson, and the two went to various other

      bars, drank alcohol, and stayed together that night. At some point, Gibson and

      Hodella were in a vehicle parked in an apartment complex parking lot in New

      Albany, Indiana. The two began to argue when Hodella accused Gibson of

      stealing some of her prescription medication. During the argument, Gibson hit

      Hodella in the face. A struggle ensued, and Gibson took out his pocket knife


      Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018   Page 2 of 25
      and stabbed Hodella in the throat multiple times. Gibson then drove around

      before disposing of Hodella’s body. Hodella’s body was found on January 7,

      2003; however, her case remained unsolved until April 2012.


[5]   Gibson met Stephanie Kirk on March 24, 2012. The next day, he sexually

      assaulted, strangled, and ultimately killed her. He then buried her body in his

      backyard. On April 18, 2012, Gibson attacked and sexually assaulted,

      strangled, and eventually killed seventy-five-year-old Christine Whitis, his late

      mother’s best friend. On April 19, 2012, Whitis’s mutilated body was found in

      Gibson’s garage by his sisters. In the hours after Whitis’s body was discovered,

      police apprehended a drunk Gibson, who was driving Whitis’s vehicle.


[6]   On April 20, 2012, New Albany Police Detective Carrie East interviewed

      Gibson. After being read his Miranda rights, Gibson signed a waiver-of-rights

      form and agreed to speak to police. He admitted killing Whitis and confessed

      to murdering Hodella – a death for which he was not previously a suspect.

      Over the next several days, the police continued to speak to Gibson at his

      request, during which he confessed to Kirk’s murder. At the time of his

      confession, the police did not know that Kirk was dead. Her body was

      recovered from Gibson’s backyard.


[7]   On April 24, 2012, the State charged Gibson with the murders of Whitis and
                    1
      Hodella. On May 23, 2012, the State charged Gibson with the murder of Kirk



      1
          The State later dismissed the murder charge for Hodella and refiled it under a separate cause number.


      Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018               Page 3 of 25
       and filed for the death penalty in the Whitis and Kirk cases. In October 2013,

       Gibson was tried for the murder of Whitis. The jury returned a guilty verdict

       on October 25, 2013, and unanimously recommended a sentence of death to

       which Gibson was sentenced on November 26, 2013.


[8]    A jury trial was scheduled to take place on October 27, 2014, in the Hodella

       case. However, on March 20, 2014, Gibson pled guilty to the murder of

       Hodella. Per the plea agreement, neither the fact of her murder nor the

       conviction could be used as an aggravator in any other case, and the parties

       agreed that Gibson would receive a sixty-five-year sentence. On April 17, 2014,

       the trial court sentenced Gibson to sixty-five years in the DOC.


[9]    The trial for the murder of Kirk was set to begin on June 2, 2014. Before the

       trial began, however, Gibson pled guilty to murdering Kirk. Under the plea,

       Gibson agreed to waive his right to a jury trial for the penalty phase, and further

       agreed that the trial court alone would decide whether to sentence him to death,

       life imprisonment without parole, or a term of years. After a four-day

       sentencing hearing, the trial court, on August 15, 2014, imposed the death

       penalty.


[10]   Gibson appealed his convictions and sentences for the murders of Whitis and

       Kirk, and our Supreme Court affirmed. See Gibson v. State, 43 N.E.3d 231 (Ind.

       2015), cert. denied, and Gibson v. State, 51 N.E.3d 204 (Ind. 2016), reh’g

       denied, cert. denied. He later filed a petition for post-conviction relief in the




       Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018   Page 4 of 25
                       2
       instant case. The post-conviction court denied Gibson’s petition. He now

       appeals. Additional facts will be provided as necessary.


                                         Discussion & Decision

                                            Standard of Review
[11]   The petitioner in a post-conviction proceeding bears the burden of establishing

       grounds for relief by a preponderance of the evidence. Fisher v. State, 810

       N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5). When appealing

       from the denial of post-conviction relief, the petitioner stands in the position of

       one appealing from a negative judgment. Fisher, 810 N.E.2d at 679. On

       review, we will not reverse the judgment unless the evidence as a whole

       unerringly and unmistakably leads to a conclusion opposite that reached by

       the post-conviction court. Id. Further, the post-conviction court in this case

       entered findings of fact and conclusions thereon in accordance with P-C.R.

       1(6). Id. “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.” Id. In this review, we accept

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

       conclusions of law. Id. The post-conviction court is the sole judge of the

       weight of the evidence and the credibility of witnesses. Id.




       2
        Gibson also filed post-conviction petitions challenging his convictions and sentences in the Whitis and Kirk
       cases. All three petitions were heard during a consolidated evidentiary hearing.

       Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018             Page 5 of 25
[12]   Gibson urges this court to “employ ‘cautious appellate scrutiny’ when

       considering the post-conviction court’s findings of fact and conclusions of law”

       because the findings and conclusions entered are nearly identical to the

       proposed findings submitted by the State. Appellant’s Brief at 13. In Prowell v.

       State, 741 N.E.2d 704, 708-09 (Ind. 2001), our Supreme Court acknowledged

       that a trial court’s verbatim adoption of a party’s proposed findings may have

       important practical advantages and expressly declined to prohibit the practice.

       The court noted, however, that the wholesale adoption of one party’s findings

       results in an “inevitable erosion of the confidence of an appellate court that the

       findings reflect the considered judgment of the trial court.” Id. at 709.


[13]   We note that in the instant case, there are some differences between the State’s

       proposed findings and those entered by the post-conviction court, and that the

       post-conviction court’s extensive findings and conclusions (thirty pages in total)

       addressed all of the claims set forth in Gibson’s petition. As such, we decline

       Gibson’s invitation to modify our standard of review. See, e.g., Stevens v. State,

       770 N.E.2d 739, 762 (Ind. 2002) (court declined to hold post-conviction court’s

       utilization of State’s proposed findings constituted failure to provide full, fair,

       unbiased adjudication of post-conviction claims where findings and conclusions

       extensively addressed all claims, and post-conviction court “added two

       sentences to one issue, a couple of paragraphs to another, and corrected some

       of the misspellings” in State’s proposed findings and conclusions).


[14]   The basis of Gibson’s post-conviction relief petition is that his trial counsel

       rendered ineffective assistance of counsel. Claims of ineffective assistance of

       Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018   Page 6 of 25
       trial counsel are generally reviewed under the two-part test announced

       in Strickland v. Washington, 466 U.S. 668 (1984); that is, a defendant must

       demonstrate that his counsel’s performance fell below an objective standard of

       reasonableness based on prevailing professional norms and that his counsel’s

       deficient performance resulted in prejudice. Id. at 687-88. As for the first

       component – counsel’s performance – we have observed that “‘[c]ounsel is

       afforded considerable discretion in choosing strategy and tactics, and we will

       accord that decision deference. A strong presumption arises that counsel

       rendered adequate assistance and made all significant decisions in the exercise

       of reasonable professional judgment.’” Pruitt v. State, 903 N.E.2d 899, 906 (Ind.

       2009) (alteration in original) (quoting Lambert v. State, 743 N.E.2d 719, 730

       (Ind. 2001)). As for the second component, prejudice occurs when the

       defendant demonstrates that “there is a reasonable probability that, but for

       counsel’s unprofessional errors, the result of the proceeding would have been

       different.” Strickland, 466 U.S. at 694. A reasonable probability arises when

       there is a “probability sufficient to undermine confidence in the outcome.” Id.


[15]   A claim may be disposed of on either part of the two-part Strickland test.

       Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). An inability to satisfy

       either part is fatal to an ineffective assistance claim. Vermillion v. State, 719

       N.E.2d 1201, 1208 (Ind. 1999). Generally, we need not evaluate counsel’s

       performance if the defendant has suffered no prejudice. And most ineffective

       assistance of counsel claims can be resolved by a prejudice inquiry alone.

       French v. State, 778 N.E.2d 816, 824 (Ind. 2002).

       Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018   Page 7 of 25
                                           I. Illusory Guilty Plea
[16]   Gibson challenges his guilty plea. By way of background, Gibson pled guilty to

       murdering Hodella on March 20, 2014. Per the plea agreement, neither the fact

       of her murder nor the conviction could be used as an aggravator in any other

       case, and the parties agreed that Gibson would receive a sixty-five-year

       sentence. At the time of Gibson’s plea, the Kirk case was still pending. In that

       case, the State (on May 23, 2012) had charged Gibson with Kirk’s murder,

       alleged he was an habitual offender, and sought the death penalty based upon

       the aggravating circumstance set forth under Ind. Code § 35-50-2-9(b)(8), that

       Gibson committed another murder – namely, of Hodella. I.C. § 35-50-2-9(b)

       lists the aggravating circumstances the State may allege in order to seek the

       death penalty for murder. Subsection (b)(8) provides: “The defendant has

       committed another murder, at any time, regardless of whether the defendant has
                                                                                       3
       been convicted of that other murder.” (Emphasis added.)


[17]   Gibson contends his guilty plea was not entered knowingly, intelligently, and

       voluntarily because it was motivated by the State’s improper threat to use

       Hodella’s murder as an aggravating circumstance to support the imposition of a

       death sentence in the Kirk case. According to Gibson:


                The threat of this aggravator was improper because, at the time
                [he] was offered and accepted the plea agreement, the State did



       3
         I.C. § 35-50-2-9(b)(8) is not to be confused with I.C. § 35-50-2-9(b)(7) which lists a separate aggravating
       circumstance the State may allege in order to seek the death penalty for murder, that is, “The defendant has
       been convicted of another murder.” (Emphasis added.)

       Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018              Page 8 of 25
                 not have the power under Indiana Code section 35-50-2-9(b)(8)
                 to use Hodella’s murder to support the imposition of the death
                 penalty in [the Kirk case] . . . [because] [t]he law is settled that,
                 when the other murder alleged has not been reduced to a
                 conviction, this aggravator only applies to multiple murders that
                 are related and are tried in one proceeding.


       Appellant’s Brief at 16. Gibson also argues that his counsel at trial, J. Patrick

       Biggs and Amber Shaw, were ineffective for failing to advise him of the illusory

       nature of his guilty plea.


[18]   A plea bargain motivated by an improper threat is to be deemed illusory and a

       denial of substantive rights. Champion v. State, 478 N.E.2d 681, 683 (Ind. 1985).

       At the moment the plea is entered, the State must possess the power to carry

       out any threat that was a factor in obtaining the plea agreement. Id. The lack

       of that real power is what makes the threat illusory and causes the

       representation to take on the characteristics of a trick. Id. “‘[A] threat by a

       prosecutor to do what the law will not permit, if it motivates a defendant

       ignorant of the impossibility, renders the plea involuntary.’” Munger v.

       State, 420 N.E.2d 1380, 1387 (Ind. Ct. App. 1981) (quoting Lassiter v.

       Turner, 423 F.2d 897, 900 (4th Cir. 1970), cert. denied).


[19]   Our Supreme Court, in Segura v. State, 749 N.E.2d 496 (Ind. 2001), placed a

       high burden upon defendants who are claiming that an improper punitive

       threat compelled their guilty plea before that plea may be set aside. The court

       stated:



       Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018   Page 9 of 25
               Whether viewed as ineffective assistance of counsel or an
               involuntary plea, the postconviction court must resolve the
               factual issue of the materiality of the bad advice in the decision to
               plead, and postconviction relief may be granted if the plea can be
               shown to have been influenced by counsel’s error. However, if
               the postconviction court finds that the petitioner would have
               pleaded guilty even if competently advised as to the penal
               consequences, the error in advice is immaterial to the decision to
               plead and there is no prejudice.


       Id. at 504-05. Relying upon Segura, this court later held, “when an error in

       advice supports a claim of intimidation by exaggerated penalty, a petitioner

       must establish specific facts that lead to the conclusion that a reasonable

       defendant would not have entered a plea had the error in advice not been

       committed.” Willoughby v. State, 792 N.E.2d 560, 564 (Ind. Ct. App. 2003),

       trans. denied.


[20]   Gibson’s particular claim on this point seems to be a hybrid of an outright claim

       of involuntary or illusory plea and ineffective assistance of counsel.

       Nevertheless, whether Gibson’s claim is of an involuntary plea or ineffective

       assistance, he must demonstrate that the intimidation resulting from his trial

       counsel’s failure to properly advise him was material to his decision to plead

       guilty. See Segura, 749 N.E.2d at 504; see also Willoughby, 792 N.E.2d at 563

       (stating “it is immaterial whether [a defendant’s] claim is of an involuntary plea

       or ineffective assistance of counsel”).


[21]   As evidence that his plea was induced by an improper threat, Gibson points us

       to testimony of his defense attorneys. Biggs testified: “All I remember was the

       Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018   Page 10 of 25
       main thing was [Gibson’s murder of Hodella] was not going to be used in the

       Kirk case as an aggravator.” Post-Conviction Transcript Vol. I at 70. Shaw

       testified:


               And the concession that we got with the plea agreement was that
               it could then not be used in the death penalty cases as a prior
               circumstance, which was the main win as far as that goes. So
               that was the reason that we took the plea was because we got that
               concession from the State, that it could not be used against him
               for purposes of the death penalty.


       Post-Conviction Transcript Vol. II at 115.


[22]   Gibson is correct that the aggravator addressed in I.C. § 35-50-2-9(b)(8) is

       applicable only in “cases involving double or multiple murders for which the

       defendant is being tried in one proceeding.” Hough v. State, 560 N.E.2d 511,

       519 (Ind. 1990). Gibson was charged for the murders under three separate

       cause numbers. As such, the State could not carry out the threat of using the

       I.C. § 35-50-2-9(b)(8) aggravator in another prosecution. Indeed, on April 4,

       2014, fifteen days after Gibson pled guilty to the murder of Hodella, the State

       acknowledged as much:


               [B]ased upon our plea agreement that we had entered into
               approximately two weeks ago where we had agreed that we
               would not use the murder of Miss Hodella as an aggravating
               factor in [the Kirk] case. And [sic] I would also believe for that
               that we probably were prohibited by law, a[t] least case law.
               There was an argument that we could not use that, so we have
               removed that aggravating factor.



       Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018   Page 11 of 25
       Transcript from Kirk Case Vol. I at 161-62. However, Hodella’s murder could

       have been used as an aggravator for seeking the death penalty in the Kirk case

       under I.C. § 35-50-2-9(b)(7), once the murder was reduced to a conviction and
                                                                                 4
       without an agreement with the State to the contrary. Gibson’s acceptance of

       the plea deal in the Hodella case foreclosed all use of this aggravator in future

       prosecutions.


[23]   Even assuming that the State’s threat to use the I.C. § 35-50-2-9(b)(8) aggravator

       against Gibson was improper, Gibson still must show that such was material to

       his decision to plead guilty. We find that Gibson has not met his burden.


[24]   The record reveals that Gibson confessed numerous times to different

       individuals to killing Whitis, Kirk, and Hodella, and the details of his

       confessions were corroborated. He faced the death penalty in two of the three

       cases. At the post-conviction hearing, defense counsel Biggs testified that “all

       along Mr. Gibson just kind of wanted to get things over with . . . [;] he just

       wanted to go ahead, admit everything, and take the death penalty.” Post-

       Conviction Transcript Vol. I at 74. At the time Gibson pled guilty to murdering

       Hodella, he had been convicted by a jury of murdering Whitis. There was




       4
         Under Ind. Code § 35-34-1-5, the State had the power to amend the charging information in the Kirk case
       and change the basis of the death penalty aggravator from Gibson committed the Hodella murder to Gibson
       had been convicted of the Hodella murder. See Appellant’s Appendix from Kirk Case Vol. I at 47; I.C. §§ 35-50-2-
       9(b)(8), (b)(7); see also Gibson, 51 N.E.2d at 211 (the Kirk case) (holding trial court did not commit
       fundamental error when it allowed State to amend death penalty aggravator in charging information from
       “Gibson committed the Whitis murder to he had been convicted of it” on same day Gibson pled guilty to the
       Kirk murder).

       Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018               Page 12 of 25
       overwhelming evidence of his guilt in the Hodella case. Gibson benefited

       substantially by pleading guilty to the murder of Hodella. The plea agreement

       insured that Gibson would avoid the death penalty and be sentenced to a term

       of years.


[25]   Gibson has not shown that that the State’s threat to use the I.C. § 35-50-2-

       9(b)(8) aggravator was material to his decision to plead guilty. He has failed to

       demonstrate that he would not have pled guilty even if properly advised

       regarding the aggravating circumstance, and he has failed to demonstrate a

       showing of facts that support a reasonable probability that the hypothetical

       reasonable defendant would have elected to go to trial if properly advised. See

       Segura, 749 N.E.2d at 507 (“there must be a showing of facts that support a

       reasonable probability that the hypothetical reasonable defendant would have

       elected to go to trial if properly advised”). Thus, his claims of an illusory guilty

       plea and ineffective assistance on this basis fail.


                                      II. Failure to Investigate
[26]   Gibson claims that his trial counsel provided ineffective assistance for failing to

       adequately investigate his murder charge before advising him to plead guilty.

       Specifically, he argues that trial counsel (1) failed to properly investigate

       whether another individual killed Hodella and (2) failed to investigate the

       reliability of his confessions.


[27]   While it is undisputed that effective representation requires adequate pretrial

       investigation and preparation, it is well settled that we should resist judging an

       Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018   Page 13 of 25
       attorney’s performance with the benefit of hindsight. Badelle v. State, 754

       N.E.2d 510, 538 (Ind. Ct. App. 2001), trans. denied. Accordingly, when

       deciding a claim of ineffective assistance for failure to investigate, we apply a

       great deal of deference to counsel’s judgments. Boesch v. State, 778 N.E.2d

       1276, 1283 (Ind. 2002).


               [S]trategic choices made after thorough investigation of law and
               facts relevant to plausible options are virtually unchallengeable;
               and strategic choices made after less than complete investigation
               are reasonable precisely to the extent that reasonable professional
               judgments support the limitation on investigation. In other
               words, counsel has a duty to make reasonable investigations or to
               make a reasonable decision that makes particular investigations
               unnecessary.


       Strickland, 466 U.S. at 690-91.


                                        A. Adequacy of Investigation

[28]   Gibson maintains that counsel’s performance was deficient for failing to

       investigate whether another individual killed Hodella. According to Gibson,

       information uncovered by the police, as well as the post-mortem examination of

       Hodella (revealing multiple facial fractures in various stages of healing and a

       healed right rib fracture), should have prompted counsel to investigate whether

       Hodella’s ex-boyfriend Mike Rhodes killed her.


[29]   At the post-conviction hearing, defense attorney Biggs testified that he

       remembered receiving discovery from the State in the Hodella case; he

       reviewed the discovery; and, based upon the discovery, he interviewed


       Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018   Page 14 of 25
       Detective Rachel Lee with the Jeffersonville Police Department, who had

       investigated Hodella’s disappearance in 2002. Biggs further testified that

       “almost a week before” he became involved in Gibson’s case, Gibson “had

       already confessed to murdering . . . Ms. Hodella,” and that the details of the

       confession had been corroborated. Post-Conviction Transcript Vol. I at 50. Biggs

       testified:


               [T]he Jeffersonville police had talked to various witnesses, we
               have their statements. She had -- Ms. Hodella had been living in
               Florida with a fellow named Rhodes. She came up here from
               Florida. And they had a lot of arguments, according to
               witnesses, and the last time anybody saw her they had argued in
               the bar at the River Falls Lounge, it was called Bill’s Lounge.
               And Mr. Rhodes said he left there, and other witnesses said they
               saw Ms. Hodella leave with another gentleman that was not Mr.
               Rhodes. That was the last time anyone saw her.


               And [Gibson] had told us that he met Ms. Hodella there that
               night, said she had been arguing with her boyfriend, and she kind
               of left him and left with Mr. Gibson. So that matched up with
               his story. And he described her as a small blond woman, which
               fit Ms. Hodella’s description.


       Id. at 55-56.


[30]   Biggs recalled that, when Gibson met with Mark Mabrey, the investigator hired

       for his case, Gibson indicated that a tattoo on his arm was “a memorialization

       of the killing of Ms. Hodella.” Id. at 57. Biggs answered in the affirmative

       when asked if Gibson had “always maintain[ed] that he had, in fact, murdered .

       . . Ms. Hodella;” if Gibson communicated the confession to the investigator;

       Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018   Page 15 of 25
       and if Gibson sent statements to the media about his involvement in the

       murder.” Id. at 50. When asked if there was any competent evidence that a

       third party committed the crime, Biggs answered, “No.” Id. at 58.


[31]   Based upon the foregoing, we find that given Gibson’s confession and the

       corroborating evidence, it was reasonable for trial counsel to not undertake

       additional investigation into whether another had murdered Hodella. Gibson’s

       counsel adequately investigated whether Rhodes killed Hodella. Gibson has

       failed to establish that counsel’s investigation fell below an objective standard of

       reasonableness.


                                        B. Reliability of Confessions

[32]   Gibson says his counsel were ineffective for failing to investigate the reliability

       of his confessions to Hodella’s murder and consult with a false confessions

       expert to assess the reliability of his confessions. According to Gibson, the

       reliability of his confessions was in question because the police used “suggestive

       questioning” during their interrogations; certain details of the confessions

       conflicted with police evidence (e.g., Gibson told police he stripped Hodella of

       her clothes and threw them out with her body, but Hodella’s body was found

       clothed); and Gibson “confessed” to murdering several other people, but it was

       determined that he had fabricated those confessions so that he could receive

       perks from the police like coffee and cigarettes or time out of general lock-up.

       Appellant’s Brief at 30, 31.




       Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018   Page 16 of 25
[33]   In support of his argument, Gibson points to Professor Alan Hirsch’s testimony

       at the post-conviction hearing regarding the history and reasons behind false

       confessions and the police techniques and tactics that can lead to false

       confessions. Hirsch testified that he believed he “could have offered the

       [defense] team . . . opinions about the case, ways in which the confessions

       might be vulnerable and subject to challenge, [sic] background information

       about this area.” Post-Conviction Transcript Vol. II at 17. Regarding suggestive

       questioning by police, he testified:


               There was also a fair amount of leading and suggestive
               questioning. You know, [the police] would say things like, I
               think with respect to Ms. Hodella, and then you took her clothes
               off? And [Gibson] nodded. There was one occasion where
               [Gibson] was shown a photograph of her and did not recognize
               her. And [the police] said something like this was at the gas
               station in 2003. And that was triggering his sense of what they
               were talking about, and he said, oh, that’s Karen [Hodella]. And
               before long he was saying I’m pretty sure. And so that’s a classic
               case of leading, suggestive questioning producing evidence.


               So, I would say those are the two main things. There was a fair
                                        [5]
               amount of minimization and there was a fair amount of
               suggestive and leading questioning.




       5
         Professor Hirsch explained that “minimization” involves “communicating to the suspect that if you confess
       things won’t be so bad . . . [;] that the crime isn’t so severe and punishment won’t be so severe.” Post-
       Conviction Transcript Vol. II at 10.

       Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018          Page 17 of 25
       Id. at 18-19 (footnote added). Despite this testimony, we are not convinced that

       Gibson’s counsel’s performance fell below an objective standard of

       reasonableness regarding investigating whether Gibson’s confessions were

       reliable.


[34]   Gibson repeatedly initiated contact with the police and agreed to provide

       statements regarding Hodella’s murder, even after his counsel advised him not

       to, “in the very strongest possible language.” Post-Conviction Transcript Vol. I at

       15. Given Gibson’s repeated desire to talk to the police, a special advisement

       was created and included in the advisement of rights that the police officers

       provided each time. The special advisement reminded Gibson of a hearing that

       was held before the trial court, during which the trial court and defense counsel

       strongly advised Gibson not to talk with the police. Regarding his statements to

       the police, Gibson told attorney Biggs, “I appreciate what you’re doing, but . . .

       this is what I want to do.” Id. Biggs reviewed Gibson’s statements to the police

       and did not find evidence that he believed supported a finding that Gibson’s

       confessions were coerced.


[35]   Trial counsel also had Gibson psychologically and neurologically evaluated to

       determine whether Gibson had any brain damage, based upon information that

       Gibson may have hit his head a few times, that could have cast doubt on the

       accuracy of his confession. The neurologist determined that Gibson had no

       brain damage. Another neurologist determined that Gibson showed no

       evidence of cognitive impairment.



       Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018   Page 18 of 25
[36]   At the post-conviction hearing, Biggs testified that the defense team did not

       consider a strategy for challenging the reliability of Gibson’s confessions

       because Gibson had confessed multiple times. Moreover, Gibson’s confessions

       were corroborated. Specifically, Gibson knew and communicated accurate

       facts about Hodella; he identified her middle name; he knew she had a distinct

       tattoo; and he was able to take the police to within fifty feet of where her body

       was found.


[37]   Under these circumstances, we cannot conclude that Gibson’s counsel failed to

       adequately investigate the reliability of Gibson’s confessions and explore

       whether a false confession expert would have been beneficial to Gibson’s case.

       We find that Gibson’s trial counsel was not ineffective in this regard.


                                       III. Erroneous Findings
[38]   Gibson next claims that the post-conviction court erred in making certain

       findings. Although we do not defer to the post-conviction court’s legal

       conclusions, we review the post-conviction court’s factual findings under

       a clearly erroneous standard. Stevens, 770 N.E.2d at 746. We will not reweigh

       the evidence or judge the credibility of the witnesses; we examine only the

       probative evidence and reasonable inferences that support the decision of

       the post-conviction court. Conner v. State, 711 N.E.2d 1238, 1245 (Ind. 1999).


[39]   Gibson specifically argues that the post-conviction court erred in finding that:

       (1) his trial counsel’s investigation into Hodella’s murder included interviewing

       a police detective and employing a defense investigator to review discovery and

       Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018   Page 19 of 25
       Gibson’s statements to the police; (2) trial counsel acted reasonably by not

       further investigating Hodella’s murder; (3) there was no reason to doubt the

       reliability of Gibson’s confessions; and (4) trial counsel was not deficient for

       failing to pursue a defense that Rhodes was Hodella’s actual killer. Although

       Gibson’s arguments overlap, we address each in turn. However, we conclude

       that Gibson has failed to carry his burden to show that the post-conviction

       court’s findings are clearly erroneous.


                                   A. Police Detective and Investigator

[40]   Gibson asserts that, contrary to the post-conviction court’s findings, his counsel

       did not interview Detective Rachel Lee (with the Jeffersonville Police

       Department) and did not use investigator Mark Mabrey’s services to investigate

       Hodella’s murder. However, attorney Biggs testified that he did interview

       Detective Lee. Regarding the use of the investigator, the record supports the

       post-conviction court’s finding that “Mabrey reviewed the discovery received by

       trial counsel and all of Petitioner Gibson’s statements.” Appellant’s Appendix

       Vol. II at 210. The post-conviction court’s finding is not clearly erroneous.


                                           B. Murder Investigation

                                        1. Adequacy of Investigation

[41]   Gibson contends the post-conviction court’s “finding [that] trial counsel acted

       reasonably by not further investigating [Hodella’s murder]” was clearly

       erroneous based upon “the information known to trial counsel.” Appellant’s

       Brief at 25, 26. We already have determined that trial counsel did not render


       Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018   Page 20 of 25
       deficient performance in investigating whether another individual killed

       Hodella and the reliability of Gibson’s confessions.


                                          2. Blood-Stained Clothing

[42]   Gibson also argues that “[t]o the extent the post-conviction court found that

       [bloody clothes found in a dumpster near the time when Hodella was killed]

       were evidence of Gibson’s guilt that [justified] trial counsel’s failure to

       investigate Hodella’s murder, this finding was clearly erroneous.” Id. at 27.

       We disagree.


[43]   Blood-stained clothes were found in a dumpster in Corydon, Indiana, on

       October 11, 2002, the day after Hodella was killed. When Gibson confessed to

       killing Hodella in 2012, he told the police that, after he stabbed her to death, he
                                                                                  6
       disposed of his and her clothes in a dumpster in Corydon. The post-conviction

       court found, and the facts of the case support, that “bloody clothes were

       discovered by police shortly after [the date Hodella was killed], in what was an

       independent investigation at the time.” Appellant’s Appendix Vol. II at 211. This

       finding was not erroneous. Furthermore, the post-conviction court’s conclusion

       that trial counsel adequately investigated Gibson’s murder of Hodella was not

       based solely on the evidence of the bloody clothes, but also was based upon




       6
         DNA testing was performed on the clothing. The laboratory found a DNA profile, but it was determined
       that the clothes were not connected to any of the murders that Gibson committed.

       Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018       Page 21 of 25
       Gibson’s confessions and the corroboration of the details of the confessions.

       No error occurred here.


                                  C. Reliability of Gibson’s Confessions

[44]   Gibson claims the post-conviction court erroneously found no reason to doubt

       the reliability of his confessions. Gibson essentially rehashes the arguments

       presented in section II.B. above. There is ample evidence of the reliability of

       Gibson’s confessions. The post-conviction court’s finding that there was no

       reason to doubt the reliability of Gibson’s confessions is not clearly erroneous.


                    D. Potential Defense – Another Individual Killed Hodella

[45]   Gibson also argues that the post-conviction court erred in finding that his trial

       counsel was not deficient for failing to pursue a defense that Rhodes killed

       Hodella. The crux of this claim was addressed in section II.A. above. Defense

       counsel investigated whether someone other than Gibson committed the

       murder but concluded, based upon Gibson’s confessions and the corroboration

       of the details of the confessions, that there was no competent evidence that a

       third party committed the crime. Gibson has failed to carry his burden to show

       that the post-conviction court clearly erred in making this finding.


                                         IV. Conflict of Interest
[46]   Gibson alleges that he was denied effective assistance because Biggs had a

       conflict of interest. Gibson asserts that Biggs’s obligation as Chief Public

       Defender to oversee the fiscal demands of the public defender’s office “collided

       with his duty of loyalty to Gibson.” Appellant’s Brief at 42. Put another way,

       Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018   Page 22 of 25
       Biggs’s obligations regarding overseeing the public defender’s office resulted in

       Biggs being pressured to keep costs associated with Gibson’s capital cases as

       low as possible, which adversely affected his representation of Gibson in the

       Hodella case. Presumably due to the conflict, Biggs did not immediately

       assemble critical members of a defense team and did not adequately investigate

       the Hodella case.


[47]   The federal constitutional right to effective assistance of counsel necessarily

       includes representation that is free from conflicts of interest. Wood v. Georgia,

       450 U.S. 261, 271 (1981). To establish a violation of the Sixth Amendment due

       to a conflict, a defendant who failed to raise the objection at trial must

       demonstrate that trial counsel had an actual conflict of interest and that the

       conflict adversely affected counsel’s performance. Cuyler v. Sullivan, 446 U.S.

       335, 348, 350 (1980); Strickland, 466 U.S. at 692. Gibson has not met his

       burden.


[48]   Biggs had been the Chief Public Defender in Floyd County for nearly twenty

       years, and his duties included overseeing the operation of the public defender’s

       office. Biggs was appointed to represent Gibson on or about April 27, 2012.

       After his appointment, Biggs reduced his caseload and hired a part-time public

       defender to handle new cases assigned to the office. Biggs did not have

       concerns about being appointed Gibson’s counsel and serving as Chief Public

       Defender because, per Biggs, the chief public defender position “didn’t take that

       much of [his] time.” Post-Conviction Transcript Vol. I at 13. The trial court



       Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018   Page 23 of 25
                                                                        7
       reassessed Biggs’s compliance with Crim. R. 24, as it related to his chief public
                                                                                                          8
       defender administrative duties and determined that Biggs was compliant.


[49]   Biggs testified that he did not delay in working on Gibson’s defense and that

       meeting the requirements of Crim. R. 24 did not affect his ability to represent

       Gibson. Biggs received discovery from the State and conducted interviews.

       Biggs hired several individuals to work on Gibson’s defense, including an

       investigator, a mitigation specialist, jury consultants, an alcohol use/abuse

       specialist, a neurologist, and psychologists. For the Hodella case, Biggs

       specifically hired a former chief medical examiner to review autopsy reports

       and also hired an expert on correctional systems. Biggs did not hire additional

       experts for the Hodella case because “[w]e believed that these cases were going

       to come down to a matter of what kind of case we could make for mitigation.

       And, basically, you had the same factor in all three cases.” Post-Conviction

       Transcript Vol. I at 22.




       7
           Crim. R. 24 addresses capital cases.
       8
        After Biggs filed his appearance, the State Public Defender Commission met and discussed whether a chief
       public defender should be lead counsel in a capital case. On April 9, 2013, Larry Landis, Executive Director
       of the Indiana Public Defender Council, sent a written memorandum to the Indiana Supreme Court
       advocating for a change to Crim. R. 24 to prohibit the appointment of a chief public defender in a capital
       case. David Powell, Executive Director of the Indiana Prosecuting Attorneys Council, also sent a written
       memorandum to the Indiana Supreme Court advocating for chief public defenders to remain available for
       appointment in capital cases. Effective in May of 2013, our Supreme Court amended the rule to include that
       before a chief or managing public defender may be appointed to represent a capital defendant, a court must
       assess the impact of the appointment on the attorney’s workload, including the administrative duties. See
       Crim. R. 24(B)(3)(b).

       Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018           Page 24 of 25
[50]   Biggs testified at the post-conviction hearing that he was never questioned about

       the costs associated with representing Gibson and that he did not feel pressure

       to save the county money when determining Gibson’s defense needs.

       Specifically, “no one ever spoke to me about it. There was nothing unspoken,

       there was no . . . pressure by anyone regarding the costs. As a matter of fact, I

       figured the costs, and including the appeal it came to [a very large amount].

       And . . . no one ever said anything about it, we just turned in the claims and

       they were paid.” Id. at 45. When asked if Biggs believed his role as Chief

       Public Defender, and the administrative duties associated therewith, created a

       conflict of interest with representing Gibson, Biggs replied: “I am always

       morally, ethically and legally bound not to frivol away the funds of the county.

       By the same token, I am morally bound, ethically bound to spend whatever I

       deem is reasonable to spend in a capital case. . . . All the money was spent

       because there was a need.” Id. at 47. Biggs further testified that defense

       decisions were not made out of a concern to keep costs low.


[51]   Gibson has not demonstrated that his trial counsel had an actual conflict of

       interest. His claim that he was denied effective assistance due to a conflict of

       interest fails.


[52]   The post-conviction court did not err in denying Gibson’s petition for relief.

       Judgment affirmed.


       Robb, J. and Brown, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018   Page 25 of 25
