Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the                                Dec 17 2013, 9:38 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE:

KELLY S. CRAIG                                      GREGORY F. ZOELLER
Bunker Hill, Indiana                                Attorney General of Indiana

                                                    ANGELA N. SANCHEZ
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

KELLY S. CRAIG,                                     )
                                                    )
       Appellant-Defendant,                         )
                                                    )
              vs.                                   )    No. 63A05-1209-PC-494
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                          APPEAL FROM THE PIKE CIRCUIT COURT
                       The Honorable Sherry B. Gregg Gilmore, Special Judge
                                  Cause No. 63C01-1003-PC-95




                                       December 17, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                         Case Summary and Issues

          Kelly Craig, pro se, appeals the post-conviction court’s denial of his petition for

post-conviction relief. Craig raises the following issues for our review: (1) whether the

post-conviction court improperly considered deposition testimony from Brian Powell,

one of Craig’s accomplices; and (2) whether the post-conviction court erred by denying

Craig’s post-conviction relief petition, which was based upon a claim of ineffective

assistance of counsel.1            Concluding the post-conviction court properly considered

Powell’s deposition and that Craig did not receive ineffective assistance of counsel, we

affirm.

                                       Facts and Procedural History

          Many of the facts surrounding Craig’s underlying conviction were set out by this

court in a memorandum decision on direct appeal:

                 On December 9, 1995, Craig, Brian Powell, and Leon Jones drove to
          a McDonald’s where they met Shannon Wentzel, with whom Craig had a
          previous relationship. Craig asked Powell if they could give Wentzel a ride
          home. Powell agreed and the group eventually left McDonald’s. Craig
          invited Wentzel to hang around with them until she had to go home, and
          she agreed. The group went “four wheeling” through rural areas in Pike
          County. During this trip, Jones told Wentzel that he was going to have sex
          with her and she responded “no.”
                 The group eventually stopped along a road so that Powell could
          urinate, and everyone exited the truck. When Powell returned to the group,
          Jones struck Wentzel in the head. Jones then started kicking her, and Craig
          joined in the attack. Jones then struck her with a beer bottle. Jones then
          had vaginal and anal intercourse with her and then ordered Powell to have
          sex with her. Powell then had anal sex with her. Jones told Craig that it
          was his turn, and Craig pulled down his pants and attempted to have
          intercourse with her. All three men then kicked her. Jones then got into the


          1
            Craig also raises the issue of whether the remainder of his plea agreement would stand in the event that
his conviction for attempted rape was vacated. However, because we conclude that Craig has failed to prove he
received ineffective assistance of counsel and his convictions stand, we need not address whether Craig could enjoy
the benefit of his plea agreement had it been partially vacated.
                                                         2
        truck and ran over her ten to fifteen times. Powell and Craig then helped
        Jones put her into the bed of the truck.
               While Powell was driving, Craig and Jones noticed that Wentzel was
        moving and Jones said, “the bitch ain’t dead yet.” Powell pulled over and
        Jones took her out of the truck. Craig and Jones then kicked her and
        stabbed her with a screwdriver. Craig told Jones that she still was not dead.
        Jones then got into the truck and ran over her again approximately twenty
        times. After Jones decided that Wentzel was dead, he and Powell dragged
        her body to the edge of the woods. [Wentzel] died from the combination of
        her injuries.

Craig v. State, No. 63A05-9803-CR-177, slip op. at 2-3 (Ind. Ct. App. Nov. 9, 1998)

(citation omitted). The State charged Craig with murder, a felony; rape, criminal deviate

conduct, and aiding another person to commit the crime of murder, all Class A felonies;

and two counts seeking a sentence of life imprisonment without parole.

        Attorney Russell Mahoney was appointed to represent Craig in December 1995

and continued to represent him for approximately two years—from the time charges were

filed through Craig’s guilty plea and direct appeal. Mahoney passed away prior to

Craig’s petition for post-conviction relief, but his son Brian Mahoney, who is an attorney

and practiced with his father, was familiar with the case and testified at the post-

conviction hearing regarding Mahoney’s representation of Craig. Over the course of his

representation, Mahoney billed approximately 250 attorney hours of work on the case.

Mahoney filed a number of motions on Craig’s behalf, obtained a psychological

evaluation, and retained a sentencing consultant.

        Prior to Craig’s guilty plea, confessions had been given to the police2 and both

Jones and Powell, Craig’s accomplices, had pled guilty and agreed to testify against

Craig as a condition of their plea agreements. Given those circumstances, the appalling
        2
            At the post-conviction hearing, Brian Mahoney made reference to “confessions”—separate from Powell
and Jones’s guilty pleas—as a factor in choosing to seek a plea agreement. Tr. at 78. However, the record is
unclear as to whose confessions he was referring.
                                                      3
nature of the crime, and Craig’s previous relationship with the victim, Mahoney believed

that Craig would be found guilty and sentenced to life without parole if he had decided to

take the case to trial.   Thus, Mahoney advised Craig that the best strategy was to

negotiate a plea in hopes of obtaining the lowest possible sentence.

       Multiple plea offers were discussed as a result of negotiations between Mahoney

and the prosecuting attorney, all of which required Craig to plead guilty to two charges,

one related to the murder and one related to the rape or attempted rape. The prosecutor

would not consider a plea to only one charge unless it involved a life sentence, and the

prosecutor intended to pursue a sentence of life without parole if the matter proceeded to

trial. In October 1997, Craig entered into a written plea agreement whereby he agreed to

plead guilty to aiding another person to commit the crime of murder, a Class A felony,

and attempted rape, a Class B felony, and the State agreed to amend the charges

accordingly and dismiss the remaining charges. The plea agreement left sentencing open

to the trial court’s discretion following a hearing, and the State further agreed to

recommend that Craig’s placement in the Indiana Department of Correction should be in

a different facility than Jones and Powell.

       At the plea hearing, Craig affirmed that he understood the nature of the charges

against him and that he intended to plead guilty to those charges. Despite Craig’s

statement that he understood and did not need the statutes read to him, the trial court read

the statute defining attempt on two separate occasions: “A person attempts to commit a

crime when acting with the culpability required for commission of the crime, he engages




                                              4
in conduct that constitutes a substantial step toward commission of the crime.” 3 Volume

of Exhibits (“Vol. Ex.”) at 168-69, 178. Craig confirmed that he understood the nature of

the charges and that at trial the State would be required to prove every element beyond a

reasonable doubt. The factual basis for the attempted rape charge was read to Craig; it

provided:

          “[O]n December the 9th, 1995 in Pike County, State of Indiana, that you
          did knowingly attempt to have sexual intercourse with a person of the
          opposite sex, that person being Shannon Lynn Wentzel, when such person
          was compelled by imminent threat of force, that threat being that Shannon
          Lynn Wentzel would be shot with a gun if she did not consent to
          intercourse.”

Vol. Ex. at 186. Craig admitted that this was true and he was guilty of attempted rape. In

further support of the State’s factual basis, the State offered a deposition of Powell taken

by Mahoney, which was admitted into evidence without objection. Powell’s deposition

testimony described the crimes in detail and essentially characterized Craig as a willing

participant throughout the commission of the crimes. Specific to the rape, Powell’s

testimony was that he witnessed Craig undo his pants, climb on top of the victim, and

“saw his bare ass moving, up and down.” Vol. Ex. at 247. The trial court found that

Craig understood the charges, there was a sufficient factual basis to support them, and

Craig’s guilty plea was freely and voluntarily given.

          Craig’s version of the attempted rape is recounted in the presentence investigation

report, which was submitted to the court at the sentencing hearing. Relevantly, the report

stated:



          3
              The trial court also read the statute defining rape: “A person who knowingly or intentionally has sexual
intercourse with a member of the opposite sex when the other person is compelled by force or imminent threat of
force . . . .” Vol. Ex. at 178.
                                                          5
       [Jones] said “it’s your turn Kelly.” Kelly said “no, I’m not.” Kelly
       believes that [Jones] then struck him on his head. Kelly stated that he then
       laid on top of her but didn’t have an erection or penetration. . . . While
       Kelly was on top of Shannon, [Jones and Powell] got into the truck. They
       asked Kelly if he was done. He told them he was.

Vol. Ex. at 30.

       A sentencing hearing was held in October 1997. Mahoney prepared a sentencing

memorandum and argued for a mitigated sentence. Relevant to Craig’s arguments for

post-conviction relief, Mahoney wrote:

       Kelly Craig has also pled guilty to attempted rape, even though he has
       always maintained that upon Leon Jones’ orders, he only pretended to have
       sex with Shannon Wentzel. He did lie down on top of her, with his pants
       and shorts down, and Brian Powell states in his deposition that he saw
       Kelly Craig’s bare buttocks. However, Kelly Craig says he did not have an
       erection, and he did not penetrate the sex organ of Shannon Wentzel.
       Nonetheless, these acts constitute a substantial step toward the crime of
       rape, and therefore Kelly Craig is guilty of attempted rape. Legally, the
       attempt to commit a crime constitutes the same grade of crime as the crime
       attempted. However, lying on top of Shannon Wentzel, without an
       erection, without penetration, does not warrant the same sentence for rape
       as should be meted out to a defendant who, without being ordered, actually
       penetrates a victim and satisfies his sexual desire.

Vol. Ex. at 69-70. The trial court sentenced Craig to ten years for attempted rape and

forty-five years for aiding another person to commit murder, all executed and to be

served consecutively for an aggregate sentence of fifty-five years imprisonment. This

court affirmed Craig’s sentence on direct appeal. Craig, No. 63A05-9803-CR-177, slip

op. at 2.

       In February 2000, Craig filed a petition for post-conviction relief but later

withdrew that petition without prejudice. And in March 2010, Craig filed the petition for

post-conviction relief which is the subject of this appeal. The sole grounds for relief

sought in Craig’s petition were claims of ineffective assistance of counsel. Following a
                                            6
hearing, the post-conviction court issued written findings of fact and conclusions of law

denying post-conviction relief. Craig then filed a motion to correct error, and it was

denied. Craig now brings this appeal.

                                 Discussion and Decision

                                  I. Standard of Review

       A petitioner seeking post-conviction relief bears the burden of establishing

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

A petitioner who is denied post-conviction relief appeals from a negative judgment,

which may be reversed only if “the evidence as a whole leads unerringly and

unmistakably to a decision opposite that reached by the post-conviction court.” Stevens

v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied, 540 U.S. 830 (2003). We defer to

the post-conviction court’s factual findings, unless they are clearly erroneous. Id. at 746.

                II. Post-Conviction Court’s Use of the Powell Deposition

       Craig argues that the post-conviction court incorrectly relied on the Powell

deposition in its findings of fact, because Craig believes it is contrary to “previously

established facts” found by the trial court during sentencing. Appellant’s Brief at 5. In

particular, Craig points to this statement made by the trial court: “The history of this case

shows to the Court that the defendant participated in the crimes under a threat of harm to

himself.” Vol. Ex. at 367.

       As a threshold matter, Craig makes this argument as a precursor to another

argument improperly raised for the first time on appeal. Namely, he asserts that there

was not a sufficient factual basis for his plea. In addition to lacking any discernable

merit, that issue has been forfeited for appeal because Craig failed to assert such a claim
                                             7
in his petition for post-conviction relief.4 P-C.R. 1(8) (“All grounds for relief available to

a petitioner under this rule must be raised in his original petition.”); see also Koons v.

State, 771 N.E.2d 685, 691 (Ind. Ct. App. 2002) (“Issues not raised in the petition for

post-conviction relief may not be raised for the first time on post-conviction appeal.”),

trans. denied.

         Regardless, the post-conviction court’s references to the Powell deposition merely

demonstrate that Craig’s version of events is contradicted by other evidence; this

evidentiary dispute is relevant to the issue actually preserved for appeal: ineffective

assistance of counsel.5 The deposition was admitted into evidence without objection, and

the post-conviction court’s findings are supported by the evidence. Craig presents us

with no authority prohibiting the post-conviction court from recognizing that evidence.

Therefore, the post-conviction court’s findings are not clearly erroneous.

                                  III. Ineffective Assistance of Counsel

         Craig contends that he received ineffective assistance of trial counsel and that the

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

asserts Mahoney was ineffective for a number of reasons, including: (1) failure to object

to the charging information; (2) failure to adequately advise Craig as to the elements of

attempted rape before his plea; and (3) failure to advise Craig regarding affirmative

defenses of abandonment and duress.


         4
             On reply, Craig concedes that his Appellant’s Brief raises arguments not raised in his post-conviction
relief petition. However, he asserts that these claims were separately decided by the post-conviction court and
should be addressed on appeal. Suffice it to say, Craig apparently misreads the post-conviction court’s order
denying post-conviction relief, as it was decided entirely on the backdrop of ineffective assistance of counsel.
         5
            The evidentiary dispute—and by extension, the strength of the State’s case—is relevant to the ineffective
assistance inquiry to the extent that the prejudice prong asks whether, but for any alleged deficient performance by
counsel, Craig would have likely forgone a guilty plea and proceeded to trial.
                                                         8
       The Sixth Amendment’s “right to counsel is the right to the effective assistance of

counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v.

Richardson, 397 U.S. 759, 771 n.14 (1970)).             To establish a claim of ineffective

assistance of counsel, a convicted defendant must show (1) that counsel’s performance

was deficient such that it fell below an objective standard of reasonableness based on

prevailing professional norms and (2) the defendant was prejudiced by counsel’s

deficient performance. Id. at 687. When considering whether counsel’s performance

was deficient, the reviewing court begins with a “strong presumption” that counsel’s

performance was reasonable.       Id. at 689.       A defendant is prejudiced if “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id.

       When a defendant contests his guilty plea based on claims of ineffective assistance

of counsel, we apply the same two-part test from Strickland discussed above. Hill v.

Lockhart, 474 U.S. 52, 58-59 (1985). The first part, regarding counsel’s performance, is

largely the same.     Id.   The prejudice requirement, however, “focuses on whether

counsel’s constitutionally ineffective performance affected the outcome of the plea

process.   In other words, . . . the defendant must show that there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.” Id. at 59.

       The two prongs of the Strickland test—performance and prejudice—are

independent inquiries, and both prongs need not be addressed if the defendant makes an

insufficient showing as to one of them. 466 U.S. at 697. For instance, “[i]f it is easier to
                                                9
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that

course should be followed” without consideration of whether counsel’s performance was

deficient. Id.

                                 A. The Charging Information

          Craig makes two allegations of ineffective assistance of counsel based on the

premise that Mahoney did not understand the law regarding attempted rape. The first of

these two arguments is that Mahoney failed to object to a flawed charging information

which “improperly attached the culpability of the attempted rape to the substantial step

instead of the underlying offense of rape . . . .” Appellant’s Br. at 14. Frankly, this

argument is a nonstarter. The charge plainly stated that Craig “did knowingly attempt to

have sexual intercourse with a person of the opposite sex, that person being Shannon

Lynn Wentzel, when such person was compelled by imminent threat of force . . . .” Vol.

Ex. at 186. The charge alleged that Craig knowingly attempted to rape Wentzel, and

there is not so much as a mention of the substantial step to which Craig claims the charge

improperly attached the culpability requirement. Mahoney’s performance as counsel was

not deficient for failing to object to the charging information.

              B. Elements of Attempted Rape and Counsel’s Advice to Plead Guilty

          Second, Craig contends that Mahoney incorrectly advised him regarding the

elements of attempted rape, which led to his decision to plead guilty. Craig maintains

throughout his briefing that he only pretended to rape his victim and thus did not have the

necessary culpability to commit the underlying offense of rape. He asserts that Mahoney

informed him that he was guilty despite a lack of culpability and advised him to plead

guilty.
                                             10
        In support of his contention that Mahoney misunderstood the elements of

attempted rape, Craig refers to a paragraph of the sentencing memorandum written by

Mahoney and quoted above. Although we believe that—when read in context—the

sentencing memorandum does not support Craig’s claim of deficient performance, this

issue is more easily disposed of on the grounds that Craig was not prejudiced by any

alleged incorrect advice given by Mahoney with respect to the elements of attempted

rape.

        First, any claim that Craig would have forgone a guilty plea and proceeded to trial

upon a correct advisement of the culpability requirement of attempted rape is belied by

the fact that he did receive such an advisement at the plea hearing and still chose to plead

guilty. At his plea hearing, the trial court read Craig the definition of attempt: “A person

attempts to commit a crime when acting with the culpability required for commission of

the crime, he engages in conduct that constitutes a substantial step toward commission of

the crime.” Vol. Ex. at 168-69, 178. This definition clearly and correctly states that a

person is guilty of attempt when acting with the culpability to commit the underlying

crime—in this case, rape. Craig confirmed that he understood the nature of the charge

and that at trial the State would be required to prove the intent element beyond a

reasonable doubt.

        Even if we ignored the fact that Craig was correctly advised in open court and

intelligently pled guilty thereafter, we would not conclude that there is a reasonable

probability that Craig would have insisted on going to trial. As the State points out, there

was ample evidence against Craig that would have supported a conviction of rape or

attempted rape. Both Jones and Powell agreed to testify against Craig. And Powell’s
                                            11
testimony would have been that Craig was a willing participant and that he witnessed

Craig undo his pants, climb on top of the victim, and “saw his bare ass moving, up and

down.” Vol. Ex. at 247. Their testimony would have been sufficient for a jury to find

Craig guilty of rape or attempted rape. The jury would have been under no obligation to

credit Craig’s version of events. Robinson v. State, 699 N.E.2d 1146, 1148 (Ind. 1998)

(“The jury [is] in the best position to assess the credibility of witnesses and could assign

little—or no—weight to [a defendant’s] version. It is the jury’s exclusive prerogative to

weigh conflicting evidence.”).

       Moreover, Craig’s plea agreement was extremely favorable. By pleading guilty,

Craig evaded the possibility of life without parole, which Mahoney justifiably believed

was a strong likelihood if Craig had gone to trial.        Craig has not demonstrated a

reasonable probability he would have forgone his plea agreement in exchange for a

trial—the likely outcome of which was a jury finding him guilty of rape and murder and a

resulting sentence of life imprisonment.

                                  C. Affirmative Defenses

       Finally, Craig claims that Mahoney was ineffective for failing to advise him

regarding the affirmative defenses of duress and abandonment. However, Craig has not

met his burden of establishing that Mahoney was deficient for declining to advise Craig

of these defenses.

       First, Mahoney did not perform deficiently by failing to advise Craig as to the

defense of duress. The law is clear that the defense of duress does not apply to offenses

committed against the person, including rape and attempted rape. Ind. Code § 35-41-3-8.


                                            12
The post-conviction court correctly concluded that Craig could not have defended against

a charge of rape or attempted rape on that basis.

          Second, Mahoney did not perform deficiently by not advising Craig as to the

defense of abandonment. Abandonment “is a defense that the person who engaged in the

prohibited conduct voluntarily abandoned his effort to commit the underlying crime and

voluntarily prevented its commission.” Ind. Code § 35-41-3-10. Outside of Craig’s self-

serving version of events, he identifies no evidence that would support a theory of

abandonment. Indeed, all other evidence seems to point toward Craig’s guilt. “Counsel

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.” State v. Holmes, 728 N.E.2d 164, 172 (Ind. 2000) (citation omitted), cert.

denied, 532 U.S. 1067 (2001). Given the State’s evidence against Craig and the dearth of

evidence supporting a defense of abandonment, it would have been reasonable to believe

pursuit of a guilty plea was a better strategy than proceeding to trial with a weak defense.

          We hold that Mahoney’s failure to advise Craig regarding the defenses of duress

and abandonment was not ineffective assistance of counsel.

                                        Conclusion

          Concluding the post-conviction court did not err by considering Powell’s

deposition and that it correctly denied Craig’s petition for post-conviction relief, we

affirm.

          Affirmed.

BARNES, J., and BROWN, J., concur.
                                             13
