MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                            Feb 19 2016, 9:39 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE
DeJuan McIntyre
Michigan City, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

DeJuan McIntyre,                                         February 19, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1504-PC-256
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt Eisgruber,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G01-1407-PC-37582 and 49G01-
                                                         0712-PC-259671



Altice, Judge.


                                          Case Summary




Court of Appeals of Indiana | Memorandum Decision 49A02-1504-PC-256 | February 19, 2016       Page 1 of 11
[1]   DeJuan McIntyre appeals from the denial of his petition for post-conviction

      relief (PCR). On appeal, he asserts that the post-conviction court erred in

      rejecting his claims of ineffective assistance of trial and appellate counsel.


[2]   We affirm.


                                       Facts & Procedural History


[3]   The facts underlying McIntyre’s convictions were set forth by this court in an

      unpublished memorandum decision on direct appeal as follows:

              McIntyre and Amy Silva dated “[o]ff and on for about three and
              a half years.” The relationship ended on November 25, 2007.
              On November 28, 2007, McIntyre went to Silva’s workplace.
              McIntyre was angry and asked Silva if he could look in her car.
              Silva opened her trunk and told McIntyre that there was no need
              for him to be at her workplace. McIntyre told Silva that
              “everything was just going to be taken care of.” McIntyre then
              walked back to his vehicle, pulled back around, and yelled at
              Silva’s coworker, “you work with a crazy bitch and everything’s
              going to be taken care of, don’t worry about it....” Silva was
              afraid and went downtown to file a protective order.


              On November 29, 2007, McIntyre called Silva’s cell phone
              multiple times while she was at work. Silva answered one of the
              calls, and McIntyre “started screaming and yelling” at her.
              McIntyre said, “Bitch, you think this is a fucking game. This is
              not a game. I’m going to kill you.” Silva called the police and
              reported the incident.


              On the evening of November 30, 2007, Silva, Silva’s children,
              and John Gaines, a family friend, were in Silva’s apartment.
              Someone knocked on the door to the apartment, and Silva

      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-PC-256 | February 19, 2016   Page 2 of 11
              looked through the peephole but did not see anyone. After
              another knock, Silva again looked through the peephole and saw
              McIntyre standing to the side. Silva called the “on-site sheriff.”
              McIntyre said that he was the police and knocked continuously
              on the door. McIntyre kicked the door and the door framing
              cracked. McIntyre kicked the door again and the door flew open.


              McIntyre came into the apartment with a butcher knife and said
              that he wanted to talk to Silva. McIntyre was holding the knife
              with the blade facing outward. Gaines told McIntyre that he
              could talk to Silva but he did not need the knife. McIntyre set the
              knife down for a “split second” and then picked it up. McIntyre
              led Gaines and Silva’s son toward the back bedroom.


              In a “split second,” McIntyre “lunged” forward toward Silva.
              Gaines then grabbed McIntyre, and Gaines and Silva’s son
              attempted to hold McIntyre back, but McIntyre struck Silva in
              the head with the blade of the knife. McIntyre and Gaines
              “tussled a little bit,” and McIntyre eventually left. Silva suffered
              a “laceration or a bleeding wound to her head,” and Gaines
              suffered a “very large laceration to the back of the scalp.”


      McIntyre v. State, No. 49A05-0902-CR-56, slip op. at *1 (Dec. 8, 2009) (record

      citations omitted). McIntyre was ultimately convicted of burglary as a class A

      felony, two counts of battery as a class C felony (one count for battering Silva

      and another for battering Gaines), and two counts of domestic battery as a class

      D felony against Silva.


[4]   On direct appeal, McIntyre challenged the sufficiency of the evidence

      supporting his burglary conviction and his conviction for battering Gaines. He

      also argued that his convictions violated the prohibition against double


      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-PC-256 | February 19, 2016   Page 3 of 11
      jeopardy. This court concluded that the State presented sufficient evidence to

      support the convictions, but that McIntyre’s convictions ran afoul of double

      jeopardy protections. The court therefore vacated McIntyre’s convictions for

      domestic battery and battery against Silva. McIntyre’s convictions for class A

      felony burglary and class C felony battery against Gaines remained

      undisturbed.


[5]   McIntyre filed a pro se petition for post-conviction relief (PCR) on September

      17, 2010, which he amended on February 22, 2012, and May 13, 2013. In the

      petition, McIntyre alleged that he received ineffective assistance of both trial

      and appellate counsel. The post-conviction court held evidentiary hearings on

      November 19, 2013, and February 25, 2014, after which the court took the

      matter under advisement. On April 15, 2015, the post-conviction court issued

      its order denying McIntyre’s PCR petition. McIntyre now appeals.


                                             Discussion & Decision


[6]   As an initial matter, we note that McIntyre is proceeding pro se on appeal.1 Pro

      se litigants are held to the same standard as trained counsel and are required to

      follow procedural rules. Smith v. State, 38 N.E.3d 218, 220 (Ind. Ct. App.

      2015). McIntyre’s appellate brief is littered with misquotations of the record,




      1
        We also note that the State has not filed a brief in this matter. Accordingly, McIntyre will prevail on appeal
      if he makes a prima facie case of error. See Sims v. State, 771 N.E.2d 734, 737 n.1 (Ind. Ct. App. 2002), trans.
      denied. “However, this circumstance in no way relieves us of our obligation to decide the law as applied to
      the facts in the record in order to determine whether reversal is required.” Id.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-PC-256 | February 19, 2016            Page 4 of 11
      and McIntyre repeatedly omits portions of quotations without noting the

      alteration. Moreover, McIntyre attributes quotes to his appellate counsel that

      do not appear anywhere in the record.2 McIntyre’s pro se status does not

      excuse his multiple mischaracterizations of the record.


[7]   Turning now to the merits of McIntyre’s appeal, we note that in a post-

      conviction proceeding, the petitioner bears the burden of establishing grounds

      for relief by a preponderance of the evidence. Bethea v. State, 983 N.E.2d 1134,

      1138 (Ind. 2013). “When appealing the denial of post-conviction relief, the

      petitioner stands in the position of one appealing from a negative judgment.”

      Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In order to

      prevail, the petitioner must demonstrate that the evidence as a whole leads

      unerringly and unmistakably to a conclusion opposite the post-conviction

      court’s conclusion. Id. Although we do not defer to a post-conviction court’s

      legal conclusions, we will reverse its findings and judgment only upon a

      showing of clear error, i.e., “that which leaves us with a definite and firm

      conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729

      N.E.2d 102, 106 (Ind. 2000)).


                                1. Ineffective Assistance of Trial Counsel




      2
       According to McIntyre, when asked whether she had read a specific case, appellate counsel testified that she
      “was not aware of that case when preparing the brief[.]” Appellant’s Brief at 15. Appellate counsel said no
      such thing. Instead, she testified that she had no specific recollection of whether she read the case, but “if the
      case was available, [she] probably read it[.]” PCR Transcript at 39.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-PC-256 | February 19, 2016              Page 5 of 11
[8]   A petitioner will prevail on a claim of ineffective assistance of counsel only

      upon a showing that counsel’s performance fell below an objective standard of

      reasonableness and that the deficient performance prejudiced the petitioner.

      Bethea, 983 N.E.2d at 1138. To satisfy the first element, the petitioner must

      demonstrate deficient performance, which is “representation that fell below an

      objective standard of reasonableness, committing errors so serious that the

      defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id.

      (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the

      second element, the petitioner must show prejudice, which is “a reasonable

      probability that, but for counsel’s errors, the result of the proceeding would

      have been different.” Id. at 1139. “A reasonable probability is one that is

      sufficient to undermine confidence in the outcome.” Kubsch v. State, 934

      N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington, 466 U.S. 668,

      694 (1984)).      Because a petitioner must prove both deficient performance and

      prejudice in order to prevail on a claim of ineffective assistance of counsel, the

      failure to prove either element defeats such a claim. See Young v. State, 746

      N.E.2d 920, 927 (Ind. 2001) (holding that because the two elements of

      Strickland are separate and independent inquiries, the court may dispose of the

      claim on the ground of lack of sufficient prejudice if it is easier).


[9]   McIntyre first argues that his trial counsel was ineffective for failing to object to

      the introduction of evidence prohibited under Ind. Evidence Rule 404(b).

      However, our review of the record reveals that trial counsel did object to the




      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-PC-256 | February 19, 2016   Page 6 of 11
       introduction of this evidence on that basis at both a pretrial hearing and during

       trial. McIntyre’s argument in this regard is therefore meritless.


[10]   Next, McIntyre argues that his first, privately-hired trial counsel was ineffective

       for withdrawing due to McIntyre’s failure to fulfill his financial obligations.

       McIntyre’s private counsel filed his motion to withdraw nearly eight months

       before the case was tried, and the trial court appointed the Public Defender

       Agency to represent McIntyre on the same day it granted private counsel’s

       motion to withdraw. McIntyre has made no attempt to explain any prejudice

       he suffered as a result of private counsel’s withdrawal. Accordingly, he has not

       established trial counsel ineffectiveness on this basis.


[11]   McIntyre also argues that his trial counsel was ineffective for failing to

       communicate a plea offer to him. The post-conviction court rejected this claim,

       finding that McIntyre had failed to produce any evidence that a plea offer was

       made. The only evidence in the record supporting McIntyre’s claim that a plea

       offer was made is a statement of the prosecuting attorney at a pretrial hearing,

       at which McIntyre was present, that she had emailed defense counsel a plea

       offer the previous day. At the time of the PCR hearing, defense counsel could

       not recall whether he had received a plea offer.


[12]   Even if we assume that the State made a plea offer and that defense counsel

       failed to communicate that offer to McIntyre, we still conclude that McIntyre

       has not established that trial counsel was ineffective. In Dew v. State, this court

       held that defense attorneys have a duty to inform their clients of proffered plea


       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-PC-256 | February 19, 2016   Page 7 of 11
       agreements, and failure to do so constitutes ineffective assistance of trial

       counsel if the defendant can establish “that counsel acted unreasonably by

       failing to inform him of the plea offer and that, but for counsel’s actions, there

       was a reasonable probability that he would have accepted the plea offer.” 843

       N.E.2d 556, 569 (Ind. Ct. App. 2006), trans. denied. McIntyre has wholly failed

       to introduce any evidence establishing a reasonable probability that he would

       have accepted the plea offer had he been aware of it. Indeed, he has not even

       introduced evidence concerning the substance of the purported plea offer.

       Accordingly, McIntyre has not made the requisite showing of prejudice.


[13]   McIntyre also argues that trial counsel was ineffective for inadequately

       impeaching one of the State’s witnesses. Specifically, McIntyre asserts that

       counsel should have introduced Gaines’s pretrial deposition into evidence. Our

       review of the record reveals defense counsel sought to admit the deposition into

       evidence as a prior inconsistent statement, but the trial court concluded that the

       deposition itself was inadmissible. Defense counsel was allowed to use the

       deposition to refresh Gaines’s recollection and to impeach his testimony. On

       appeal, McIntyre argues that counsel was ineffective for failing to lay a proper

       foundation for the admission of the deposition. McIntyre has not explained

       how the deposition was admissible or what was required to establish a proper

       foundation. Nor has he included the deposition in the record or made any

       attempt to explain how the substance of the deposition would have aided his

       defense or further undermined Gaines’s credibility. Consequently, McIntyre




       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-PC-256 | February 19, 2016   Page 8 of 11
       has failed to establish either deficient performance or prejudice resulting from

       the exclusion of the deposition.


                           2. Ineffective Assistance of Appellate Counsel


[14]   McIntyre also argues that his appellate counsel was ineffective for failing to cite

       certain authority in support of the double jeopardy argument presented on

       direct appeal. “The standard by which we review claims of ineffective

       assistance of appellate counsel is the same standard applicable to claims of trial

       counsel ineffectiveness.” Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App.

       2008), trans. denied. Our supreme court has recognized three types of ineffective

       assistance of appellate counsel: (1) denial of access to appeal; (2) failure to raise

       issues that should have been raised; and (3) failure to present issues well.

       Wrinkles v. State, 749 N.E.2d 1179, 1203 (Ind. 2001). McIntyre’s claim falls into

       the third category. Our Supreme Court has noted that “claims of inadequate

       presentation of certain issues, as contrasted with the denial of access to an

       appeal or waiver of issues, are the most difficult for defendants to advance and

       for reviewing tribunals to support.” Holowell v. State, 19 N.E.3d 263, 270 (Ind.

       2014). This is the case because such claims require the reviewing court to

       reexamine specific issues on which it has already ruled to determine “whether

       the new record citations, case references, or arguments would have had any

       marginal effect on their previous decision.” Bieghler v. State, 690 N.E.2d 188,

       195 (Ind. 1997). Additionally, Indiana’s appellate courts are not limited to the

       cases cited and arguments made by appellate counsel, and “[w]e commonly

       review relevant portions of the record, perform separate legal research, and

       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-PC-256 | February 19, 2016   Page 9 of 11
       often decide cases based on legal arguments and reasoning not advanced by

       either party.” Id.


[15]   McIntyre’s argument is difficult to fully understand, but it appears to turn on a

       claim that his appellate counsel was ineffective for failing to cite Campbell v.

       State, 622 N.E.2d 495 (Ind. 1993), abrogated in part by Richardson v. State, 717

       N.E.2d 32 (Ind. 1999). We note that McIntyre’s appellate counsel successfully

       raised a double jeopardy argument, resulting in three of McIntyre’s five

       convictions being vacated. Moreover, although appellate counsel did not cite

       Campbell, this court cited that case in its memorandum decision on McIntyre’s

       direct appeal. See McIntyre, No. 49A05-0902-CR-56, slip op. at *5 n.8. Because

       this court clearly considered Campbell, we cannot conclude that appellate

       counsel’s citation of that case would have had an impact on the outcome of

       McIntyre’s direct appeal.


[16]   In any event, Campbell is clearly distinguishable from the case at hand and

       would not compel the reversal of McIntyre’s remaining battery conviction. In

       Campbell, the defendant was sentenced for class A felony burglary and class C

       felony battery after he broke into a home where his ex-girlfriend was staying the

       night and slashed her face with a sharp object. 622 N.E.2d at 497. Our

       Supreme Court concluded that the defendant was improperly sentenced for

       class C felony battery because “the enhanced felony level of both crimes was

       based upon the same injurious consequences,” i.e., the slashing of the victim’s

       face. Id. at 500.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-PC-256 | February 19, 2016   Page 10 of 11
[17]   In this case, however, McIntyre inflicted two separate injuries on two separate

       victims. In keeping with double jeopardy principles, McIntyre’s domestic

       battery convictions and the class C felony battery conviction based on the injury

       he inflicted on Silva were vacated. See McIntyre, No. 49A05-0902-CR-56, slip

       op. at *5 (explaining that “the very same act, i.e., McIntyre’s touching of Silva,

       formed the basis of both of the domestic battery convictions . . . , one of the

       battery convictions . . . , and the enhancement of the burglary conviction to a

       class A felony”). McIntyre is not entitled to also have his class C felony battery

       conviction based on the injury he inflicted on Gaines vacated. For all of these

       reasons, McIntyre has not established that his appellate counsel was ineffective.


[18]   Judgment affirmed.


[19]   Robb, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-PC-256 | February 19, 2016   Page 11 of 11
