MEMORANDUM DECISION
                                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                                            Jan 31 2019, 5:37 am

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


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Robert Williams                                          Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana

                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Williams,                                         January 31, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1710-PC-2546
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Helen Marchal,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Stanley Kroh,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49F15-9012-PC-154496



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2546 | January 31, 2019         Page 1 of 11
[1]   Robert Williams appeals the denial of his petition for post-conviction relief. He

      presents multiple issues for our review, which we consolidate and restate as:


                 1. Whether Williams received ineffective assistance of counsel
                 during his guilty plea hearing; and


                 2. Whether the post-conviction court committed error by
                 allegedly adopting the State’s proposed findings of fact and
                 conclusions of law.


      We affirm.



                                Facts and Procedural History
[2]   On December 17, 1990, the State charged Williams with Class D felony theft. 1

      On April 25, 1991, Williams entered a plea agreement with the State whereby

      Williams would plead guilty as charged and receive a sentence of one year, in

      exchange for the State declining to file habitual offender charges against

      Williams based on prior unrelated convictions. Williams and his attorney, Lori

      Howard, signed the plea agreement.


[3]   On June 13, 1991, the trial court held a change of plea and sentencing hearing.

      Howard was not present at that hearing, and Maureen Keefe acted as counsel

      in Howard’s absence. The trial court accepted Williams’ plea and heard a

      factual basis therefor, ensured Williams understood the relinquishment of



      1
          Ind. Code § 35-43-4-2(a) (1986).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2546 | January 31,   Page 2 of 11


      2019
      certain rights by taking the plea, and sentenced him according to the plea

      agreement.


[4]   On March 14, 2012, Williams filed a pro se petition for post-conviction relief,

      alleging he was not represented at the change of plea hearing. That petition

      was dismissed without prejudice on December 16, 2013. On August 11, 2014,

      Williams refiled his petition for post-conviction relief and amended that petition

      in July 2016. On January 11, 2017, the post-conviction court held an

      evidentiary hearing on Williams’ petition for post-conviction relief. Williams

      did not testify at that hearing, nor did he call any witnesses. After the

      evidentiary hearing, the post-conviction court directed the parties to file

      proposed findings of fact and conclusions of law. On October 6, 2017, the post-

      conviction court issued an order denying Williams’ petition.



                                 Discussion and Decision
[5]   Post-conviction proceedings afford petitioners a limited opportunity to raise

      issues that were unavailable or unknown at trial and on direct appeal. Davidson

      v. State, 763 N.E.2d 441, 443 (Ind. 2002), reh’g denied, cert. denied sub nom.

      Davidson v. Indiana, 537 U.S. 1122 (2003). As post-conviction proceedings are

      civil in nature, the petitioner must prove his grounds for relief by a

      preponderance of the evidence. Id. A party appealing a negative post-

      conviction judgment must establish the evidence is without conflict and, as a

      whole, unerringly points to a conclusion contrary to that reached by the post-

      conviction court. Id. Where, as here, the post-conviction court makes findings

      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2546 | January 31, 2019   Page 3 of 11
      of fact and conclusions of law in accordance with Indiana Post-Conviction Rule

      1(6), we do not defer to the court’s legal conclusions, but “the 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.”

      Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (quoting State v. Moore, 678

      N.E.2d 1258, 1261 (Ind. 1997), cert. denied, 523 U.S. 1079 (1998)), reh’g denied,

      cert. denied sub nom. Ben-Yisrayl v. Indiana, 534 U.S. 830 (2001). The post-

      conviction court is the sole judge of the weight of the evidence and the

      credibility of witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).


                              Ineffective Assistance of Counsel
[6]   In reviewing a claim of ineffective assistance of counsel, we begin with a strong

      presumption “that counsel rendered adequate assistance and made all

      significant decisions in the exercise of reasonable professional judgment.” Ward

      v. State, 969 N.E.2d 46, 51 (Ind. 2012), reh’g denied. Trial counsel has wide

      latitude in selecting trial strategy and tactics, which choices will be subjected to

      deferential review. Id. A petitioner must offer “strong and convincing evidence

      to overcome this presumption” of adequate assistance and reasonable

      professional judgment. Ben-Yisrayl, 729 N.E.2d at 106.


[7]   To demonstrate ineffective assistance, a petitioner must establish both deficient

      performance and resulting prejudice. Pontius v. State, 930 N.E.2d 1212, 1219

      (Ind. Ct. App. 2010), trans. denied. Performance is deficient when trial counsel’s

      representation falls below an objective standard of reasonableness causing


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2546 | January 31, 2019   Page 4 of 11
      errors sufficiently serious to amount to a denial of a defendant’s Sixth

      Amendment right to counsel. Wesley v. State, 788 N.E.2d 1247, 1252 (Ind.

      2003), reh’g denied. A fair evaluation of counsel’s performance requires that

      every effort be made to eliminate the distorting effects of hindsight by

      evaluating the challenged conduct from counsel’s perspective at the time. Nadir

      v. State, 505 N.E.2d 440, 441 (Ind. 1987). Prejudice is established when “there

      is a reasonable probability that, but for counsel’s unprofessional errors, the

      result of the proceeding would be different.” Id. If a petitioner did not establish

      prejudice, we need not evaluate trial counsel’s performance. Pontius, 930

      N.E.2d at 1219.


[8]   Williams argues he did not receive assistance of counsel at the change of plea

      hearing because his original public defender, Howard, was not present at the

      hearing. Instead, Howard’s colleague, Keefe, was present. Williams contends

      the State did not prove Keefe was an attorney, and thus he was not represented

      at the change of plea hearing.


[9]   Regarding this issue, the post-conviction court found:


              4. On June 13, 1991, the Trial Court conducted Petitioner’s
              Guilty Plea and Sentencing, Attorney. [sic] The Trial Court’s
              Order of Judgment of Convictions reveals that attorney “M.
              Keefe,” appeared at the Plea and Sentencing on behalf of
              attorney Lori Howard. The Post-Conviction court, relying on its
              familiarity with Marion County Criminal Defense Bar of the
              early 1990’s is confident that the respective attorneys were Lori
              Howard and Maureen Keefe, both of whom were Marion
              County Deputy Public Defenders.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2546 | January 31, 2019   Page 5 of 11
       (Appealed Order at 2.)


[10]   During the Post-Conviction proceedings, the State presented a copy of the

       Abstract of Judgment, which listed “M. Keefee [sic]” as the Defense Attorney,

       (App. Vol. II at 36), and the Order of Judgment of Conviction, which indicated

       Williams appeared in person and “by counsel, M. Keefe for L. Howard[.]” (Id.

       at 37.) Finally, during the change of plea hearing, the following exchange

       occurred between Williams and the Judge:


               [Judge]:     And are you satisfied with your attorney’s
               representations in this matter?


               [Williams]: Yes.


               [Judge]:     Now you understand this lawyer didn’t represent
               you; your regular P.D.’s gone today. Do you think this one
               knows enough about your case to advise you to go ahead with
               this?


               [Williams]: Yeah, well, I guess. . . I don’t know. . .


               [Judge]:         Well - what do you think?


               [Williams]: I mean you’re asking me - whether she knows
               enough about it?


               [Judge]:     Well . . . do you have any reason not to go ahead
               with this? I mean . . . this - this Lori Howard negotiated this plea
               agreement for you.


               [Williams]: Right . . .
       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2546 | January 31, 2019   Page 6 of 11
               [Judge]:     And it calls for - the penalty is one year - that’s it.
               She doesn’t have to be here to argue what the sentence would be;
               she’s already agreed with the prosecutor as to what that would
               be. And, eh - does that satisfy you?


               [Williams]: Yes.


               [Judge]:         Do you want to go ahead with it today?


               [Williams]: Yes.


               [Judge]:      I’ll ask the public defender - did you know enough
               about it to advise him to go ahead with it?


               [Keefe]:         Yes - it’s a simple theft case, Judge.


       (Change of Plea Hearing Tr. at 14-15.) Williams’ argument is an invitation for

       us to reweigh the evidence, which we cannot do. See Fisher, 810 N.E.2d at 679

       (appellate court will not reweigh evidence or judge the credibility of witnesses).


[11]   Even if there had been an error, Williams was not prejudiced in any way by

       Keefe’s representation at the change of plea hearing. “[I]n order to establish

       that the guilty plea would not have been entered if counsel had performed

       adequately, the petitioner must show that a defense was overlooked or impaired

       and that the defense would likely have changed the outcome of the

       proceeding.” Segura v. State, 749 N.E.2d 496, 499 (Ind. 2001). As noted in the

       transcript, Howard negotiated the plea and the corresponding sentence prior to




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2546 | January 31, 2019   Page 7 of 11
       the change of plea hearing. Williams and Howard signed the plea on April 25,

       1991. (App. Vol. II at 32.)


[12]   Williams received substantial benefit from the plea. The State was prepared to

       offer testimony from store security that Williams hid merchandise and left the

       store without paying for it. The State also had closed circuit television footage

       of Williams committing the crime. The State was prepared to file a habitual

       offender charge based on Williams’ past convictions, which could have

       increased his sentence by at least ten years. See Ind. Code § 35-50-2-8(e) (1990)

       (sentencing guidelines for habitual offender adjudications). The State agreed to

       waive that charge in exchange for Williams’ plea. In addition, Williams

       received a one-year sentence for a Class D felony, which was less than the one-

       and-one-half-year presumptive sentence. See Ind. Code § 35-50-2-7(a) (1990)

       (person who commits a Class D felony “shall be imprisoned for a fixed term of

       one and one-half (1 ½) years, with . . . not more than one (1) year subtracted for

       mitigating circumstances”).


[13]   At the change of plea hearing, Williams responded in the affirmative to all

       questions regarding the relinquishment of any rights associated with his plea.

       He indicated he was satisfied with Howard’s performance and eventually

       acquiesced to Keefe’s representation. The trial court accepted the plea as signed

       by Williams, Howard, and the State. Williams has not demonstrated he

       suffered prejudice by Keefe’s representation at his change of plea hearing. See

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



       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2546 | January 31, 2019   Page 8 of 11
       establish that his decision to enter a plea was influence by the ineffective

       assistance of his counsel), trans. denied.


                Post-Conviction Court’s Findings and Conclusions 2
[14]   Williams alleges the trial court copied the State’s proposed findings and

       conclusions of law verbatim, and to do so was error. Our Indiana Supreme

       Court has explained:


                It is not uncommon for a trial court to enter findings that are
                verbatim reproductions of submissions by the prevailing party.
                The trial courts of this state are faced with an enormous volume
                of cases and few have the law clerks and other resources that
                would be available in a more perfect world to help craft more
                elegant trial court findings and legal reasoning. We recognize
                that the need to keep the docket moving is properly a high
                priority of our trial bench. For this reason, we do not prohibit
                the practice of adopting a party’s proposed findings. But when
                this occurs, there is an inevitable erosion of the confidence of an
                appellate court that the findings reflect the considered judgment
                of the trial court.


       Prowell v. State, 741 N.E.2d 704, 708-9 (Ind. 2001). “The critical inquiry is

       whether the findings adopted by the court are clearly erroneous.” Saylor v.




       2
         Williams also argues the post-conviction court erred when it did not allow him to testify or present evidence
       at the post-conviction hearing. However, Williams answered in the affirmative when the trial court asked if
       he wanted to “rest on the transcripts and then [he] will file [his] written argument[.]” (PC Tr. at 2-3.) He
       now claims on appeal the trial court prevented him from presenting evidence at the post-conviction hearing
       and he is “a lay person, with limited vocabulary [who] never realized that some words of legal magic needed
       to be announced in order to testify.” (Reply Br. of Appellant at 4.) As we hold pro se litigants to the same
       standards as licensed attorneys, Smith v. Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert.
       dismissed, Williams’ argument fails.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2546 | January 31, 2019             Page 9 of 11
       State, 765 N.E.2d 535, 565 (Ind. 2002), reversed on other unrelated grounds on reh’g,

       808 N.E.2d 646 (Ind. 2004).


[15]   Here, the State agrees the post-conviction court’s order is very similar to the

       State’s proposed order, absent a few grammatical and stylistic changes.

       However, as we determined supra that the post-conviction court’s findings and

       conclusions were not erroneous, the post-conviction court did not commit error

       when it adopted the majority of the State’s proposed findings and conclusions

       into its final order. See Pruitt v. State, 903 N.E.2d 899, 940 (Ind. 2009)

       (affirming post-conviction’s court use of State’s proposed findings and

       conclusions because findings and conclusions were supported by the record),

       reh’g denied; and see Stevens v. State, 770 N.E.2d 739, 762 (Ind. 2002) (affirming

       the post-conviction court’s adoption of the State’s proposed findings based on

       subtle changes made by the post-conviction court that led Indiana Supreme

       Court to determine the post-conviction court had “carefully considered and

       purposefully used” the State’s proposed findings and conclusions), reh’g denied,

       cert. denied sub nom Stevens v. Indiana, 540 U.S. 830 (October 6, 2003).



                                               Conclusion
[16]   Williams has not demonstrated prejudice from the substitution of Keefe for

       Howard at his change of plea hearing. Additionally, the post-conviction court

       did not err when it adopted the majority of the State’s proposed findings and

       conclusions because the court’s order was supported by the record.

       Accordingly, we affirm.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2546 | January 31, 2019   Page 10 of 11
[17]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2546 | January 31, 2019   Page 11 of 11
