MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                               Aug 20 2015, 8:27 am
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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jeffrey A. Baldwin                                       Gregory F. Zoeller
Tyler D. Helmond                                         Attorney General of Indiana
Voyles Zahn & Paul                                       Jesse R. Drum
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Emily Duncan,                                            August 20, 2015
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         67A01-1503-PC-102
        v.                                               Appeal from the Putnam Circuit
                                                         Court
State of Indiana,                                        The Honorable Matthew L.
Appellee-Respondent.                                     Headley, Judge
                                                         Trial Court Cause No. 67C01-
                                                         1401-PC-1



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015   Page 1 of 14
                                   STATEMENT OF THE CASE

[1]   Appellant-Petitioner, Emily J. Duncan (Duncan), appeals the post-conviction

      court’s denial of her petition for post-conviction relief.


[2]   We affirm.


                                                     ISSUE

[3]   Duncan raises one issue on appeal, which we restate as follows: Whether the

      post-conviction court erred in denying Duncan’s petition for post-conviction

      relief because she was denied effective assistance of trial counsel.


                           FACTS AND PROCEDURAL HISTORY

[4]   On September 29, 2011, the State filed an Information, charging Duncan with

      two Counts of sexual misconduct with a minor, Class B felonies, Ind. Code §

      35-42-4-9(a)(1) (2011). Shortly after her arrest, Duncan retained private

      counsel, but on March 28, 2012, Duncan’s attorney filed a motion to withdraw

      due to Duncan’s inability to pay for his services as previously agreed. On April

      18, 2012, the trial court initially denied the motion to withdraw; however, on

      April 25, 2012, the trial court permitted the withdrawal of counsel and

      appointed a public defender (Trial Counsel) to represent Duncan.


[5]   Prior to trial, the State engaged in plea negotiations with Duncan through her

      attorney. In approximately August of 2012, Trial Counsel informed Duncan

      that the State had offered to reduce her charges from Class B felonies to Class C

      felonies in exchange for a guilty plea. Duncan declined the plea offer.


      Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015   Page 2 of 14
      Sometime thereafter, Trial Counsel advised Duncan that the State had offered a

      revised plea agreement, under which she would be convicted of one Class D

      felony. Again, Duncan refused to plead guilty. On October 24, 2012,

      immediately prior to the start of the trial, the State explained that the offer to

      plead guilty to a Class D felony remained on the table, which Trial Counsel

      immediately conveyed to Duncan. After Duncan indicated that she would not

      plead guilty, the trial court conducted a bench trial. At the close of the

      evidence, the trial court found Duncan guilty of both Counts of Class B felony

      sexual misconduct with a minor and entered judgment of conviction thereon.

      On December 21, 2012, following a sentencing hearing, the trial court merged

      Counts I and II and sentenced Duncan to a term of eight years—with two years

      executed in the Indiana Department of Correction, two years served in

      Community Corrections, and four years suspended to probation.


[6]   On January 4, 2013, Duncan initiated a direct appeal. However, on March 5,

      2013, she filed a verified motion to remand and temporarily stay appellate

      proceedings pursuant to the Davis-Hatton procedure. On March 12, 2013, our

      court dismissed the appeal without prejudice in order for Duncan to pursue

      post-conviction relief before the trial court.


[7]   On January 27, 2014, Duncan filed a Verified Petition for Post-Conviction

      Relief. Duncan argued that her conviction should be set aside, in pertinent

      part, because she “was denied the effective assistance of trial counsel.”




      Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015   Page 3 of 14
      (Appellant’s App. p. 121). 1 More specifically, Duncan alleged that Trial

      Counsel “was deficient and his representation fell below an objective standard

      of reasonableness” because he “failed to provide effective assistance of counsel

      during plea negotiations by not adequately explaining the consequences of plea

      offers.” (Appellant’s App. pp. 121-22). On January 7, 2015, the post-

      conviction court held a hearing and issued an Order on February 25, 2015,

      denying Duncan’s petition for post-conviction relief. The post-conviction court

      concluded that Trial Counsel’s “representation did not fall below the objective

      standard of reasonableness” because he had communicated the State’s plea

      offers to Duncan. (Appellant’s App. p. 171).


[8]   Duncan now appeals. Additional facts will be provided as necessary.


                                    DISCUSSION AND DECISION2

[9]   Duncan invoked the Davis-Hatton procedure, “which is the termination or

      suspension of a direct appeal already initiated, upon appellate counsel’s motion

      for remand or stay, to allow a petition for post-conviction relief to be pursued in

      the trial court.” White v. State, 25 N.E.3d 107, 121 (Ind. Ct. App. 2014), reh’g



      1
         We note that the second page of Duncan’s petition, which appears to enumerate additional arguments for
      setting aside her conviction, has been omitted from the Appendix. We further note that although Duncan
      cites to the trial transcript in her appellate brief, we have only been provided with the transcript from the post-
      conviction relief hearing.
      2
        We remind the parties that, pursuant to Indiana Administrative Rule 9(G)(2)(f), “[c]omplete Social
      Security Numbers of living persons” are confidential and must be excluded from public access. Additionally,
      we note that the pre-sentence investigation (PSI) report is to be excluded from public access; however, we
      have included confidential information from the PSI report in this decision to the extent necessary to resolve
      the appeal in accordance with Indiana Administrative Rule 9(G)(7)(a)(ii)(c). See I.C. § 35-38-1-13; Ind.
      Administrative Rule 9(G)(2)(b).

      Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015                 Page 4 of 14
       denied, trans. denied. In this case, because Duncan’s petition for post-conviction

       relief was denied, the direct appeal “can be reinstated.” Id. Accordingly, “in

       addition to the issues raised on direct appeal, the issues litigated in the post-

       conviction-relief proceeding can be raised”—i.e., “the direct appeal and the

       appeal of the denial of post-conviction relief are consolidated.” Id. Here,

       Duncan solely challenges the denial of her petition for post-conviction relief.


                                             I. Standard of Review

[10]   Post-conviction procedures “create a narrow remedy for subsequent collateral

       challenges to convictions.” Ben-Yisrayl v. State, 729 N.E.2d 102, 105 (Ind.

       2000), reh’g denied, cert. denied, 534 U.S. 830 (2001). In order to prevail on a

       claim of post-conviction relief, Duncan bears “the burden of establishing [her]

       grounds for relief by a preponderance of the evidence.” Ind. Post-Conviction

       Rule 1(5). Because Duncan is appealing a negative judgment, our court “will

       reverse the denial of post[-]conviction relief only if the evidence as a whole

       leads unerringly and unmistakably to a decision opposite that reached by the

       post[-]conviction court.” Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002),

       reh’g denied, cert. denied, 537 U.S 1122 (2003).


[11]   In this case, the post-conviction court entered findings of fact and conclusions

       of law in accordance with Indiana Post-Conviction Rule 1(6). As such, we will

       reverse the post-conviction court’s findings and judgment “only upon a showing

       of clear error—‘that which leaves us with a definite and firm conviction that a

       mistake has been made.’” Ben-Yisrayl, 729 N.E.2d at 106 (quoting State v.

       Moore, 678 N.E.2d 1258, 1261 (Ind. 1997), reh’g denied, cert. denied, 523 U.S.

       Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015   Page 5 of 14
       1079 (1998)). Although we accord no deference to the post-conviction court’s

       conclusions of law, “the post[-]conviction court is the sole judge of the weight

       of the evidence and the credibility of witnesses.” Davidson, 763 N.E.2d at 443-

       44.


                                  II. Ineffective Assistance of Trial Counsel

[12]   Duncan claims that Trial Counsel rendered ineffective assistance during the

       plea negotiations prior to trial. The Sixth Amendment to the United States

       Constitution—applicable to the States through the Fourteenth Amendment—

       guarantees “the right to effective assistance of counsel” to the accused in all

       criminal prosecutions. Missouri v. Frye, 132 S.Ct. 1399, 1404 (2012). It is well

       established that this Sixth Amendment right to effective representation “extends

       to the plea-bargaining process.” Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012).


[13]   As a general principle, “counsel’s performance is presumed effective”;

       therefore, Duncan “must offer strong and convincing evidence to overcome this

       presumption.” Ben-Yisrayl, 729 N.E.2d at 106. We review claims of ineffective

       assistance of counsel under the two-part test articulated in Strickland v.

       Washington, 466 U.S. 668 (1984), reh’g denied. First, Duncan must establish that

       Trial Counsel’s “performance was deficient.” White, 25 N.E.3d at 132 (citing

       Strickland, 466 U.S. at 687). “This requires a showing that counsel’s

       representation fell below an objective standard of reasonableness and that

       counsel made errors so serious that counsel was not functioning as ‘counsel’

       guaranteed to the defendant by the Sixth Amendment.” Id. Second, Duncan

       must demonstrate “that the deficient performance prejudiced the defense.” Id.

       Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015   Page 6 of 14
       (citing Strickland, 466 U.S. at 687). “To establish prejudice, a defendant must

       show that ‘there is a reasonable probability that, but for counsel’s

       unprofessional errors, the result of the proceeding would have been different.’”

       Id. (quoting Strickland, 466 U.S. at 694). Duncan’s failure to establish either of

       the prongs set forth in Strickland “will cause the claim to fail.” Id. (quoting State

       v. Greene, 16 N.E.3d 416, 419 (Ind. 2014)).


                                           A. Deficient Performance

[14]   In evaluating whether an attorney’s performance fell below “an objective

       standard of reasonableness[,]” we look to the “prevailing professional norms.”

       Woods v. State, 701 N.E.2d 1208, 1211 (Ind. 1998), reh’g denied, cert. denied, 528

       U.S. 861 (1999). “[A]s a general rule, defense counsel has the duty to

       communicate formal offers from the prosecution to accept a plea on terms and

       conditions that may be favorable to the accused.” Frye, 132 S.Ct. at 1408. Also

       relevant to this case, Indiana Professional Conduct Rule 1.4(b) provides that

       “[a] lawyer shall explain a matter to the extent reasonably necessary to permit

       the client to make informed decisions regarding the representation.”


[15]   The parties do not dispute that Trial Counsel communicated each of the State’s

       plea offers to Duncan, all of which Duncan declined. Duncan now alleges that

       Trial Counsel’s performance was deficient because, following the State’s first

       offer to plead guilty to two Class C felonies, “[t]he penalty range for a Class C

       felony was not communicated. And Duncan, given that she has no legal

       training, did not know what the penalty range for a Class C felony was.”

       (Appellant’s Br. p. 9) (internal citation omitted). In addition, subsequent to the

       Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015   Page 7 of 14
       State’s second offer that she could plead guilty to one Class D felony, Duncan

       posits that Trial Counsel “failed to explain the penalty range for a Class D

       felony. And he failed to explain so that Duncan could understand several other

       terms, such as the possibility that the conviction could be entered as an

       alternative Class A misdemeanor and would prevent her from the requirement

       of registering as a sex offender.” (Appellant’s Br. pp. 9-10) (internal citations

       omitted). See I.C. § 35-50-2-7(b) (providing that “if a person has committed a

       Class D felony, the court may enter judgment of conviction of a Class A

       misdemeanor and sentence accordingly”).


[16]   In Lawrence v. State, 464 N.E.2d 1291, 1295 (Ind. 1984), the defendant raised a

       claim of ineffective assistance of counsel based, in relevant part, on the fact

       “that his trial counsel failed to adequately explain the terms of a plea

       agreement” by misinforming him of the possible penalties for the charged

       offense and by misadvising him about the possibility that the trial court might

       reject the plea. Our supreme court rejected this argument, stating that “[t]he

       test is one of reasonableness; this does not require perfection.” Id. Here, at the

       post-conviction relief hearing, Trial Counsel answered affirmatively when asked

       whether he explained the differences in penalty ranges for Class B, C, and D

       felonies and particularly testified that he “would have informed [Duncan] what

       the [Class] C felony [penalty] was and if she didn’t ask I would tell her what the

       range was and . . . her response to every offer was I’m not pleading guilty to

       something I didn’t do.” (Tr. p. 22). Trial Counsel further elaborated that on

       the day of the trial, even though the time for a written plea agreement had


       Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015   Page 8 of 14
       lapsed, the State explained that it was still offering the Class D felony as a

       “charge bargain[].” (Tr. p. 25). Having reviewed all of the evidence against

       Duncan, Trial Counsel testified that he advised Duncan to accept the State’s

       offer to plead guilty to one Class D felony because he believed she would be

       convicted if she proceeded to trial. According to Trial Counsel:

               I mean I spent half an hour, forty five minutes in that room
               discussing that and the whole time [Duncan] said I’m not
               pleading guilty to something I did not do. At one point in time
               [the prosecutor] came in and talked and explained to her you
               know that, or we both talked about the fact that [she] didn’t have
               to report [as a sex offender]. That there was alternative
               misdemeanor sentenc[ing]. She was not interested. She was not
               interested in pleading guilty.


       (Tr. p. 23). Because the record supports the post-conviction court’s

       determination that Trial Counsel “told [Duncan] of the oral offer. He told her

       of the ramifications and he went to the extraordinary step of having the elected

       prosecutor discuss the case right up until the trial commenced[,]” we find that

       Duncan’s argument is primarily a request to reweigh the evidence and reassess

       the credibility of witnesses, neither of which are functions of this court.

       (Appellant’s App. p. 171); see Dew v. State, 843 N.E.2d 556, 560 (Ind. Ct. App.

       2006), trans. denied.


[17]   We are also unpersuaded by Duncan’s attempts to characterize Trial Counsel’s

       representation as deficient based, in large part, on the fact that by the time of

       the post-conviction relief hearing, Trial Counsel could not recall the precise

       wording he utilized two-and-a-half years earlier to explain the plea offers to

       Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015   Page 9 of 14
       Duncan. Trial Counsel testified during the post-conviction relief hearing that

       he “would have told everything that was in the offer[,]” and the post-conviction

       court specifically found that Trial Counsel “would have told [Duncan] if any

       offer required [her] to register in the sex registry. [Trial Counsel] also

       recommended . . . that she take the [Class] D felony and talked about

       alternative misdemeanor sentencing possibility.” (Tr. p. 27; Appellant’s App. p.

       170). It was well within the discretion of the post-conviction court to accept

       Trial Counsel’s testimony as credible.


[18]   Duncan additionally contends that Trial Counsel was ineffective because no

       special measures were taken to clarify the course of plea bargaining in this case.

       Specifically, she asserts that


               [t]he State did not convey any of the plea offers in writing to
               [T]rial [C]ounsel, nor did [T]rial [C]ounsel memorialize any
               conversation about plea negotiations in writing to Duncan. And
               the specific course of the plea negotiations was not put on record,
               either as a status document or verbally at the pre-trial hearings or
               the beginning of the trial.


       (Appellant’s Br. p. 11) (internal citation omitted).


[19]   We initially note that the State’s conduct in the course of the plea negotiations

       has no bearing on whether Trial Counsel rendered adequate representation.

       Moreover, the Supreme Court has explained that

               [w]hen a plea offer has lapsed or been rejected, . . . no formal
               court proceedings are involved. This underscores that the plea-
               bargaining process is often in flux, with no clear standards or

       Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015   Page 10 of 14
               timelines and with no judicial supervision of the discussions
               between prosecution and defense. Indeed, discussions between
               client and defense counsel are privileged.
               ****
               “The art of negotiation is at least as nuanced as the art of trial
               advocacy and it presents questions farther removed from
               immediate judicial supervision.” Bargaining is, by its nature,
               defined to a substantial degree by personal style. The alternative
               courses and tactics in negotiation are so individual that it may be
               neither prudent nor practicable to try to elaborate or define
               detailed standards for the proper discharge of defense counsel’s
               participation in the process.


       Frye, 132 S.Ct. at 1407-08 (quoting Premo v. Moore, 562 U.S. 115, 125 (2011)).

       Nevertheless, the Frye Court added that “[t]he prosecution and the trial courts

       may adopt some measures to help ensure against late, frivolous, or fabricated

       claims after a later, less advantageous plea offer has been accepted or after a

       trial leading to conviction with resulting harsh consequences.” Id. at 1408-09.

       For instance, the Court suggested that the State may require offers to be

       memorialized in writing or for formal offers to be made part of the record. Id.

       at 1409.


[20]   Duncan does not direct our attention to any rule or regulation requiring defense

       counsel to present plea offers to a defendant in writing. Instead, Indiana’s

       Rules of Professional Conduct require a lawyer to:


               (1) promptly inform the client of any decision or circumstance
               with respect to which the client’s informed consent . . . is
               required by these Rules;
               (2) reasonably consult with the client about the means by which
               the client’s objectives are to be accomplished;
       Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015   Page 11 of 14
               (3) keep the client reasonably informed about the status of the
               matter;
               (4) promptly comply with reasonable requests for information;
               and
               (5) consult with the client about any relevant limitation on the
               lawyer’s conduct . . . .


       Ind. Professional Conduct Rule 1.4(a). Comment 2 to this Rule specifies that

       when an attorney receives “a proffered plea bargain in a criminal case[,]” he or

       she “must promptly inform the client of its substance unless the client has

       previously indicated that the proposal will be acceptable or unacceptable or has

       authorized the lawyer to accept or to reject the offer.” Prof’l Cond. R. 1.4 cmt.

       2. In accordance with his professional duties, the evidence establishes that Trial

       Counsel promptly and reasonably consulted with Duncan to inform her of the

       substance of each plea offer and to explain the ramifications for pleading guilty

       under each scenario. Because Trial Counsel believed it was in Duncan’s best

       interest for her to plead guilty to the State’s final offer of a Class D felony, Trial

       Counsel went so far as to request the prosecuting attorney to meet with Duncan

       prior to trial in an attempt to explain the benefits of the plea. She consistently

       refused the plea offers and made it clear to Trial Counsel that she maintained

       her innocence and would not be pleading guilty. Based on this evidence, we

       cannot say that Trial Counsel’s representation was deficient.


                                                   B. Prejudice

[21]   Although we need not address the second prong of Strickland in light of our

       conclusion that Trial Counsel’s performance did not fall below an objective


       Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015   Page 12 of 14
       standard of reasonableness, we would nevertheless find that Duncan’s claim

       fails because she has not established that her defense was prejudiced by Trial

       Counsel’s conduct. See Collins v. State, 14 N.E.3d 80, 87 (Ind. Ct. App. 2014).

       As the Supreme Court has determined:


               To show prejudice from ineffective assistance of counsel where a
               plea offer has . . . been rejected because of counsel’s deficient
               performance, defendants must demonstrate a reasonable
               probability they would have accepted the earlier plea offer had
               they been afforded effective assistance of counsel. Defendants
               must also demonstrate a reasonable probability the plea would
               have been entered without the prosecution canceling it or the trial
               court refusing to accept it, if they had the authority to exercise
               that discretion under state law. To establish prejudice in this
               instance, it is necessary to show a reasonable probability that the
               end result of the criminal process would have been more
               favorable by reason of a plea to a lesser charge or a sentence of
               less prison time.


       Frye, 132 S.Ct. at 1409.


[22]   During the post-conviction relief hearing, Duncan testified that she would have

       accepted the State’s last plea offer had she known the possible sentencing range

       and been informed that judgment could have been entered as a Class A

       misdemeanor. The record, however, reveals that on numerous occasions,

       Duncan clearly “professed [her] innocence and had no intention of pleading

       guilty.” See Jervis v. State, 28 N.E.3d 361, 367 (Ind. Ct. App. 2015), trans. denied.

       Along with informing Trial Counsel that she would “not plead[] guilty to

       something [she] didn’t do[,]” Duncan stated during her pre-sentence

       investigation interview, “I have no version [of events] because it never
       Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015   Page 13 of 14
       happened.” (Tr. p. 22; Appellant’s Conf. App. p. 28). Also, Duncan’s former

       fiancé wrote a letter to the trial court on Duncan’s behalf, asking for lenient

       sentencing. He described “witness[ing] her steadfast denial of guilt even in the

       face of increasingly attractive plea offers.” (Appellant’s App. p. 88). Thus, it is

       evident that Duncan chose to maintain her innocence and proceed to trial

       despite the opportunity for a favorable plea bargain. Therefore, Duncan has

       failed to demonstrate any prejudice.


                                               CONCLUSION

[23]   Based on the foregoing, we conclude that the post-conviction court properly

       denied Duncan’s petition for post-conviction relief because she did not receive

       ineffective assistance of trial counsel during the plea negotiations.


[24]   Affirmed.


[25]   Friedlander, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015   Page 14 of 14
