MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Jul 10 2019, 10:01 am
regarded as precedent or cited before any                                      CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Roy Bessler                                               Curtis T. Hill, Jr.
Pendleton, Indiana                                        Attorney General of Indiana
                                                          Chandra K. Hein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Roy Bessler,                                              July 10, 2019
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          18A-PC-123
        v.                                                Appeal from the Dearborn Circuit
                                                          Court
State of Indiana,                                         The Honorable James D.
Appellee-Respondent.                                      Humphrey, Judge
                                                          Trial Court Cause No.
                                                          15C01-1402-PC-1




Tavitas, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-PC-123 | July 10, 2019                       Page 1 of 13
                                                  Case Summary
[1]   Roy Bessler, pro se, appeals the post-conviction court’s (“PC Court”) denial of

      his petition for post-conviction relief. We affirm.


                                                          Issue
[2]   Bessler raises two issues, which we consolidate and restate as whether Bessler

      was denied the effective assistance of trial counsel.


                                                          Facts
[3]   In January 2011, narcotics detectives of the Dearborn County Sheriff’s

      Department, aided by a confidential informant, conducted an investigation

      regarding Bessler. As a result of the investigation, on February 25, 2011, the

      State charged Bessler in Cause Number 15C01-1102-FC-10 (“the Circuit Court

      case”) with possession of marijuana with intent to deliver more than ten

      pounds, a Class C felony, and conspiracy to commit dealing in marijuana. 1

      That same day, at Bessler’s initial hearing in the Circuit Court case, the trial

      court read an advisement of rights that included Bessler’s right to a speedy trial.


[4]   On May 27, 2011, the State brought additional charges stemming from the

      narcotic investigation and charged Bessler in Cause Number 15D01-1105-FA-

      12 (“the Superior Court case”), with two counts of dealing in cocaine, Class B

      felonies, and two counts of dealing in cocaine, Class A felonies. In December




      1
          The felony designation of the conspiracy charge is unclear from the record on appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-123 | July 10, 2019                Page 2 of 13
      2011, Bessler was convicted after a jury trial in the Superior Court case; on

      appeal, we affirmed Bessler’s thirty-year sentence, comprised of four concurrent

      sentences, and our Supreme Court denied transfer. See Bessler v. State, No.

      15A04-1201-CR-37 (Ind. Ct. App. Dec. 31, 2012), trans. denied.


[5]   The State subsequently tendered a plea offer to Bessler’s appointed trial counsel,

      Attorney Gary Sorge regarding the Circuit Court case. 2 Pursuant to the plea

      agreement, Bessler would plead guilty to one count of possession of marijuana

      with intent to deliver, a Class C felony, in the Circuit Court case, and the State

      would recommend an eight-year sentence to be served concurrently with

      Bessler’s sentence in the Superior Court case. The State would also dismiss the

      conspiracy count.


[6]   On January 12, 2012, the trial court conducted a guilty plea hearing. Again,

      the trial court advised that Bessler had the right to a speedy trial, which he

      would waive by entering a guilty plea. Under questioning from the trial court,

      Bessler stated that: (1) he understood his rights; and (2) he, freely and

      voluntarily, sought to plead guilty to possession of marijuana with intent to

      deliver more than ten pounds, a Class C felony. The trial court accepted the

      plea agreement. At the outset of Bessler’s sentencing hearing on March 20,




      2
       Attorney Sorge was appointed to represent Bessler in both the Circuit Court case and the Superior Court
      case.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-123 | July 10, 2019                   Page 3 of 13
      2012, Bessler asked to withdraw his guilty plea, which the trial court denied. 3

      The trial court imposed an eight-year, fully-executed sentence to be served

      concurrently with Bessler’s sentence in the Superior Court case.


[7]   On February 10, 2014, Bessler filed a pro se petition for post-conviction relief,

      wherein he alleged, inter alia, that he was denied the effective assistance of trial

      counsel in the Circuit Court case. After an evidentiary hearing, the PC court

      entered findings of fact and conclusions of law denying Bessler’s petition for

      post-conviction relief. Bessler now appeals.


                                                      Analysis
[8]   Bessler argues that the PC court erred in denying his petition for post-conviction

      relief.


                The petitioner in a post-conviction proceeding bears the burden
                of establishing grounds for relief by a preponderance of the
                evidence. When appealing from the denial of post-conviction
                relief, the petitioner stands in the position of one appealing from
                a negative judgment. To prevail on appeal from the denial of
                post-conviction relief, a petitioner must show that the evidence as
                a whole leads unerringly and unmistakably to a conclusion
                opposite that reached by the post-conviction court. [Where, as
                here, a post-conviction court has made findings of fact and
                conclusions of law in accordance with Indiana Post-Conviction
                Rule 1(6), we] do not defer to the post-conviction court’s legal
                conclusions[.] A post-conviction court’s findings and judgment



      3
        Bessler’s request to withdraw his guilty plea stemmed from his belief, which Attorney Sorge did not share,
      that narcotics detectives conducted GPS surveillance of Bessler and Bessler’s belief that a continuance of the
      sentencing hearing would aid him in “getting to the truth[.]” Tr. Vol. II p. 37.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-123 | July 10, 2019                       Page 4 of 13
              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.


      Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014) (internal quotations and

      citations omitted). As the clearly erroneous standard “is a review for

      sufficiency of evidence, we neither reweigh the evidence nor determine the

      credibility of witnesses.” State v. Greene, 16 N.E.3d 416, 418 (Ind. 2014).

      “Rather, we ‘consider only the evidence that supports that judgment and the

      reasonable inferences to be drawn from that evidence.’” Id. (quoting Ben-Yisrayl

      v. State, 738 N.E.2d 253, 258-59 (Ind. 2000), cert. denied, 534 U.S. 1164, 122 S.

      Ct. 1178 (2000)).


                                       Ineffective Assistance of Trial Counsel


[9]   Bessler asserts that he received ineffective assistance of trial counsel. To prevail

      on a claim of ineffective assistance of counsel, a petitioner must demonstrate

      both that: (1) his or her counsel’s performance was deficient, and (2) the

      petitioner was prejudiced by the deficient performance. Ben-Yisrayl v. State, 729

      N.E.2d 102, 106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687,

      104 S. Ct. 2052, 2064 (1984)), cert. denied, 534 U.S. 830, 122 S. Ct. 73 (2001). A

      counsel’s performance is deficient if it falls below an objective standard of

      reasonableness based on prevailing professional norms. French v. State, 778

      N.E.2d 816, 824 (Ind. 2002). To meet the appropriate test for prejudice, the

      petitioner must show that there is a reasonable probability that, but for

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

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-123 | July 10, 2019   Page 5 of 13
       different. Id. “A reasonable probability is a probability sufficient to undermine

       confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

       Failure to satisfy either prong will cause the claim to fail. Grinstead v. State, 845

       N.E.2d 1027, 1031 (Ind. 2006). Most ineffective assistance of counsel claims

       can be resolved by a prejudice inquiry alone. Id.


                                        A. Failure to Seek Discharge

[10]   First, Bessler argues that: (1) the trial court, sua sponte, “ordered” a speedy

       trial for him; (2) the State failed to timely try Bessler; thus, Bessler was entitled

       to be discharged, pursuant to Rule 4(B)(1) of the Indiana Rules of Criminal

       Procedure; (3) Attorney Sorge failed to move for discharge; and (4) had

       Attorney Sorge moved for discharge, “the trial court would have granted the

       motion[,] dismissed this case, and the outcome of this case would have been

       different.” Appellant’s Br. pp. 6-7.


[11]   Rule 4(B)(1) of the Indiana Rules of Criminal Procedure provides:


               (B)(1) Defendant in Jail--Motion for Early Trial. If any
               defendant held in jail on an indictment or an affidavit shall move
               for an early trial, he shall be discharged if not brought to trial
               within seventy (70) calendar days from the date of such motion,
               except where a continuance within said period is had on his
               motion, or the delay is otherwise caused by his act, or where
               there was not sufficient time to try him during such seventy (70)
               calendar days because of the congestion of the court calendar.
               Provided, however, that in the last-mentioned circumstance, the
               prosecuting attorney shall file a timely motion for continuance as
               set forth in subdivision (A) of this rule. Provided further, that a
               trial court may take note of congestion or an emergency without

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-123 | July 10, 2019   Page 6 of 13
               the necessity of a motion, and upon so finding may order a
               continuance. Any continuance granted due to a congested
               calendar or emergency shall be reduced to an order, which order
               shall also set the case for trial within a reasonable time.


[12]   The PC court here found:


               ...


               21. Attorney Sorge testified that he remembered little
               conversation regarding the issue of a fast and speedy trial.
               Attorney Sorge also stated that one of the main concerns of Mr.
               Bessler’s defense was the Class A felony charges in Superior
               Court [in 15D01-1105-FA-12]. Attorney Sorge was aware of Mr.
               Bessler’s failure to appear on a Class A felony in a prior case as it
               related to the issue of his bond and a potential bond reduction.


                                                     *****


               25. The Court finds that Petitioner Bessler has failed to present
               any evidence to support a finding of incompetence of trial
               counsel:


                                                     *****


                (d) Petitioner Bessler has failed to show incompetence of
               counsel regarding the issue of certain continuances. Attorney
               Sorge indicated that he did not recall any significant discussions [
               ] regarding speedy trial requests. Petitioner Bessler has also
               failed to present any evidence to show how the granting of a
               speedy trial request would alter the outcome in this matter.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-123 | July 10, 2019   Page 7 of 13
               (e)   The Court finds that no evidence has been presented to
               support any allegation that may have altered the outcome of this
               cause of action.


       Appellee’s App. Vol. II pp. 14, 16.


[13]   At the evidentiary hearing, the following colloquy ensued on direct

       examination of Attorney Sorge:


               [BESSLER:] [ ] When did you first learn after my arraignment in
               being named my public defender on March the 6th, 2011 that
               Judge Humphrey had ordered a fast and speedy trial on the
               present case?


               [ATTORNEY SORGE:] To my knowledge Judge Humphrey
               never ordered a fast and speedy trial. You would have had to
               have requested that or I would have had to requested [sic] that.


               [BESSLER:] I didn’t request it, he ordered it at the very end of
               the hearing.


               [ATTORNEY SORGE:] Well, I sent you my file and if – on the
               matter, and you requested it, and I told you in the letter I was
               sending you my entire file but I have no memory of Judge
               Humphrey ordering a fast and speedy trial and if he did, I have
               no recollection of objecting to it, which would have been
               something you could have requested if you didn’t want a fast and
               speedy trial.


       PC Tr. p. 94.


[14]   But for Bessler’s self-serving statements, there is no evidence in the record that

       the trial court sua sponte ordered a speedy trial. According to their respective

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-123 | July 10, 2019   Page 8 of 13
       testimony, neither Bessler nor Attorney Sorge requested a speedy trial during

       the transcribed hearings. The only references to a speedy trial arose within the

       trial court’s advisements of rights at Bessler’s initial hearing and guilty plea

       hearing. Moreover, as Bessler acknowledges, during the relevant period, the

       trial court granted multiple motions for continuances that are attributable to

       Bessler.4 See Underwood v. State, 722 N.E.2d 828, 832 (Ind. 2000) (holding that

       delay from appointed counsel’s request for a continuance, where defendant

       objected to the request, was attributable to defendant).


[15]   Bessler failed to establish that a speedy trial request was ever made; and

       consequently, Bessler could not establish that the trial court would have ordered

       discharge pursuant to a speedy trial request that was never made. Further, as

       the post-conviction court found, Bessler has “failed to present any evidence to

       show how the granting of a speedy trial request would alter the outcome in this

       matter.” Appellee’s Supp. App. Vol. II p. 16. Thus, the PC court’s finding that

       Attorney Sorge did not render ineffective assistance of counsel in failing to seek

       discharge pursuant to Rule 4(B)(1) is not clearly erroneous.




       4
         At the evidentiary hearing, Bessler asked Attorney Sorge, “[D]id you discuss with me any motions you filed
       concerning the continuance on the fast and speedy trial, which [it] is your duty to keep your client informed
       of [ ]?” PC Tr. p. 102. Attorney Sorge again testified, “I don’t remember us having any conversations about
       a fast and speedy trial in this case.” Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-123 | July 10, 2019                    Page 9 of 13
                                B. Failure to Communicate a Plea Offer

[16]   As noted above, Bessler was convicted in the Superior Court case, of two

       counts of dealing in cocaine, Class B felonies, and two counts of dealing in

       cocaine, Class A felonies, and was sentenced to an aggregate thirty-year

       sentence. Bessler argues that Attorney Sorge failed to communicate a plea

       offer, under which the State would have dismissed the charges in the Circuit

       Court case in exchange for Bessler’s guilty plea in the Superior Court case.


[17]   The PC court here found:


                                                      *****


                         (c)    The Court finds that Petitioner Bessler has
                                presented no evidence to support the allegation
                                regarding failure to communicate a plea agreement;


                                                     *****


                         (e)    The Court finds that no evidence has been presented
                                to support any allegation that may have altered the
                                outcome of this cause of action.


       Appellee’s App. Vol. II p. 16.


[18]   At the evidentiary hearing, Bessler questioned Attorney Sorge as follows:


               Q: [ ] Why did you tell me on March 20th, 2012 at a special
               hearing when the plea issue was going to be decided, that I had
               no choice and had to accept the plea related to the March 6th
               plea hearing in Court?


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-123 | July 10, 2019   Page 10 of 13
        A. I don’t remember telling you that.


        Q: [ ] As we argued about me having to accept the plea, I
        brought up in Judge Humphrey’s Court after we argued that fact
        that you telling me I had to accept the plea with you and attorney
        Jeff Stratman sitting next [to] me at the defense table, the fact
        that for the first time in Court that day you related to me a plea
        bargain offer you hadn’t nego – you had neglected to relay to me
        before the trial in Judge Cleary’s Court. You stated that . . . I
        would not even be in this Court in front of Judge Humphrey as
        this case would have been dismissed had I accepted a plea in
        Judge Cleary’s Court concerning cause number 15D01-1105-FA-
        012. That had I accepted an offer to plead guilty in open Court
        to Judge Cleary, the case in this Court would have been
        dismissed. Can you explain why you neglected to tell me of his
        plea offer before I even went to trial in Judge Cleary’s Court in
        December of 2011 [in 15D01-1105-FA-012]?


        A: I would have told you every plea offer before we – before we
        went to a jury trial I would have told you every plea offer that the
        State put on the table. I do that in every case. If my client is
        willing to accept a plea, I want them to accept a plea rather than
        go through a jury trial. So I would have explained to you every
        possible plea combination before we would have gone to a jury
        trial.


        Q: Is it possible that you were so busy with so many cases that
        sometimes you forget that – to relate plea offers to your clients?


        A: Anything’s possible, but that would be extremely unlikely.


                                              *****




Court of Appeals of Indiana | Memorandum Decision 18A-PC-123 | July 10, 2019   Page 11 of 13
               Q: So your statement again is your [sic] saying right now that
               you told me of the plea offer. But I stated in Court after we
               argued here that you didn’t tell me. Is that your statement?


               A: I’m saying right now that I would have done everything I
               could have to encourage you to thoroughly accept – taking a plea
               agreement knowing the weight, the case that the State had
               against you and what your odds were. I remember being very,
               very thorough in going over the possibilities of getting the case
               settled. And I remember telling you that it was a very difficult
               case.


       PCR Tr. pp. 120-22.


[19]   Failure to communicate a plea offer is deficient performance that falls below an

       objective standard of reasonableness. Woods v. State, 48 N.E.3d 374, 381 (Ind.

       Ct. App. 2015) (citing Missouri v. Frye, 566 U.S. 134, 145 (2012)). Here,

       however, the only evidence that Bessler presented that supports his claim that

       Attorney Sorge failed to relay the State’s plea offer is Bessler’s own self-serving

       testimony. Attorney Sorge also testified that, as a rule, he communicates the

       State’s plea offers to his clients, and that “[it is] possible, but . . . extremely

       unlikely” that he forgot to relate a plea offer to Bessler. Id. at 122. Attorney

       Sorge also testified that he did not recall any discussion with Bessler regarding

       an undelivered plea offer. Bessler failed to carry his burden before the post-

       conviction court. Cf. Woods v. State, 48 N.E.3d 374 (Ind. Ct. App. 2015)

       (reversing the denial of petition for post-conviction relief where petitioner

       produced an official plea offer letter from the State inviting petitioner to plead

       guilty to a lesser charge and proof that said offer letter was delivered to defense

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-123 | July 10, 2019   Page 12 of 13
       counsel, in addition to petitioner’s testimony that he would have accepted the

       favorable plea offer had it been communicated to him).


[20]   Based on the foregoing, we cannot say that the PC court clearly erred in finding

       that Attorney Sorge rendered effective assistance of counsel regarding Bessler’s

       unsupported claim that Attorney Sorge failed to relay a favorable plea offer.


                                                  Conclusion
[21]   The PC court’s denial of Bessler’s petition for post-conviction relief is not

       clearly erroneous. We affirm.


[22]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-123 | July 10, 2019   Page 13 of 13
