Bradford M. Crowder v. State of Indiana , 91 N.E.3d 1040 ( 2018 )

FILED
Jan 16 2018, 8:53 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Anne C. Kaiser Lyubov Gore
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bradford M. Crowder, January 16, 2018
Appellant-Petitioner, Court of Appeals Case No.
02A03-1704-PC-824
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable John F. Surbeck,
Appellee-Respondent. Jr., Judge
Trial Court Cause No.
02D05-1209-PC-164
Brown, Judge.
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 1 of 24
[1] Bradford M. Crowder appeals the denial of his petition for post-conviction
relief. He raises four issues which we consolidate as whether the post-
conviction court erred in denying his petition. We affirm in part and reverse in
part.
Facts and Procedural History
[2] On April 19, 2011, the State charged Crowder with Count I, child molesting as
a class A felony, and other counts including child molesting as a class C felony,
three counts of sexual misconduct with a minor as class B felonies, three counts
of sexual misconduct with a minor as class C felonies, four counts of child
exploitation as class C felonies, and vicarious sexual gratification as a class D
felony.
[3] On August 12, 2011, Crowder entered a plea agreement, which stated:
“COMES NOW the State of Indiana by Karen E. Richards, Prosecuting
Attorney, 38th Judicial Circuit, pursuant to I.C. 35-35-3-3, and respectfully
notifies the Court . . . .” Appellant’s Appendix Volume II at 59. The
agreement then listed ten numbered items which each had a line preceding the
item. The first item indicated that Crowder would plead guilty to all of the
charges except for child molesting as a class A felony, and the line preceding
the item was not initialed. Item 2, which had a line containing no initials,
provided:
That at sentencing the Defendant, and Defendant’s attorney, and
the State may present facts and argument, but under all
circumstances the Court shall have the final and full authority to
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 2 of 24
impose the sentence it deems proper, including the minimum and
maximum allowed by Indiana law. Nothing in this agreement
shall be construed to limit any victim privilege or right provided
by law or the discretion of the Court.
Id. The line preceding item 6 which discussed the possibility of deportation was
initialed by Crowder. Item 9, which had a line containing no initials, stated:
“The Defendant knowingly, intelligently and voluntarily waives his/her right to
challenge the reasonableness of the sentence received in this case under
Appellate Rule 7(B). Defendant also knowingly, intelligently and voluntarily
waives his/her right to challenge the sentence on the basis that it is erroneous.”
Id. at 60. Item 10, which had a line containing no initials, stated: “At
sentencing the State agrees to dismiss COUNT I, CHILD MOLESTING, a
CLASS A FELONY.” Id. Crowder and his counsel signed a document stating:
I, Bradford M. Crowder, represent that I am the defendant and
that I have read this plea agreement or I have had my attorney
read it to me. I represent that I understand the plea agreement
and accept same voluntarily and without force, threat or other
promises from anyone (other than the plea agreement).
I further understand that I have a right to a speedy, public trial by
court or by jury in the county in which the offense allegedly
occurred; I have a right to require witnesses to be present at any
hearing or at the trial for the purpose of testifying on my behalf
and at my request subpoenas will be issued by the court requiring
witnesses to appear for me; and, I have a right to remain silent
and that I cannot be required to give any testimony or make any
statement against myself to anyone. I understand that this plea
of guilty waives (gives up) the aforesaid rights.
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 3 of 24
Id. at 61.
[4] Also on August 12, 2011, the court held a hearing. Crowder stated that he had
never been treated for any mental illness and had not suffered from a mental or
emotional disability. He stated that he was not under the influence of alcohol
or any drugs and that it was his intention to enter a plea of guilty. The court
explained Crowder’s rights, and Crowder indicated that he understood he
would be giving up those rights by pleading guilty. The court read the plea
agreement, including the provisions that Crowder “knowingly, intelligently and
voluntarily waives his right to challenge the reasonableness of the sentence
received in this case under Appellate Rule 7(B)” and “also knowingly,
intelligently and voluntarily waives his right to challenge the sentence on the
basis that it is erroneous.” Guilty Plea Transcript at 17. Crowder indicated that
he understood he was giving up his right to appeal his sentence. He indicated
that he had not received any promises other than the plea agreement in order to
induce him to plead guilty, that no one had forced or threatened him to induce
him to plead guilty, and that pleading guilty was his own free and voluntary act.
[5] On September 30, 2011, the court held a sentencing hearing. Crowder’s
counsel stated:
We would submit that in October to January a time period
during which these offenses occurred should represent an episode
of single episode of criminal conduct and at the very least the
non-child molesting laded [sic] allegations we would concede
that that would be considered violent in nature so that one could
be ran consecutively. However, the remainder of these charges
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 4 of 24
should based [sic] upon his single episode of criminal conduct we
would submit should be ran concurrently and further that, that
means that the combined sentence should not exceed what would
be the next highest, the advisory on the next highest which would
be the A so we would submit that a thirty (30) years cap here is in
play.
Sentencing Transcript at 8. The prosecutor stated that Count I, child molesting
as a class A felony, was dismissed because
[S.] came in to my office and told me that while the abuse began
when she was thirteen (13) there was more of the grooming
techniques. He did not actually begin putting his penis in her
mouth till she turned fourteen (14) and that’s why that charge is
dismissed that it started with him coming in and fondling her and
touching her and grooming her and it was after she turned
fourteen (14) that he began the more, more heinous sexual acts.
And that’s why that count was dismissed and why he pled guilty
to the other charges.
Id. at 15-16.
[6] The court found Crowder’s guilty plea and acceptance of responsibility as
mitigating circumstances. The court stated:
Your attorney has further asked that I consider that these
offenses be considered a single episode of conduct to justify
concurrent sentencing and I think the case law clearly indicates
that that is not correct. I certainly understand your Attorneys
[sic] advancement of that argument but the case law does not
support it. It’s a series of events closely related in time, place and
circumstances that makes something a series of single episode of
conduct and this is clearly not one (1) instance. I don’t know
how many times you molested your daughter but it certainly
wasn’t once, or twice or even three (3) times.
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 5 of 24
Id. at 25. It found Crowder’s criminal record and the extraordinary impact on
Crowder’s daughter as aggravators.
[7] The court sentenced Crowder to four years for child molesting as a class C
felony, ten years each for the three counts of sexual misconduct with a minor as
class B felonies, four years for each of the two counts of sexual misconduct with
a minor as class C felonies, one year and 183 days for each of the two counts of
vicarious sexual gratification as class D felonies, and four years for each of the
four counts of child exploitation as class C felonies. The court ordered the
sentences to be served consecutive to each other for an aggregate sentence of
sixty-one years.
[8] On September 17, 2012, Crowder filed a petition for post-conviction relief. On
June 26, 2015, the trial court entered an order granting Crowder’s motion for
permission to file a belated appeal and holding his petition for post-conviction
relief in abeyance. In his appellate brief, Crowder argued that his sentence was
inappropriate. On October 7, 2015, the State filed a motion to dismiss arguing
that Crowder waived the right to appeal the appropriateness of his sentence in
his plea agreement and because Crowder should have raised his challenge to the
validity of his plea agreement by filing a petition for post-conviction relief. On
November 20, 2015, this Court granted the State’s motion to dismiss the appeal
with prejudice. On January 22, 2016, this Court denied Crowder’s petition for
rehearing and stated that the appeal remained dismissed.
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 6 of 24
[9] On June 8, 2016, Crowder filed an amendment to his petition for post-
conviction relief which alleged that his guilty plea was not entered knowingly,
intelligently, and voluntarily and that he was denied the effective assistance of
trial counsel.
[10] On September 30, 2016, the court held a hearing on Crowder’s petition. The
court admitted a letter dated July 29, 2011, from the deputy prosecuting
attorney to Crowder’s counsel which states:
As I explained to you on the phone yesterday, I met with [S.].
[S.] clarified some issues that I had. She explained that the
molestation began when she was 13 years old and her mother
was pregnant with her little brother. The molestations started by
her father coming into her room at night and touching her. This
type of touching occurred several times. The touching was on
top of her clothes on her breast. The first act of oral sex did not
occur until after she turned 14.
Based on this information the State will dismiss Count I prior to
trial. However, the State is confident that we will secure a
conviction on the 12 remaining counts based on [S.’s] testimony,
your client’s admission to the Detective that he began touching
[S.] when she was thirteen, and the videos he took which we
have.
The State will give Mr. Crowder one final opportunity to plead
guilty and avoid trial. He can plead to one of two plea offers. He
can plead guilty to Counts II, III, IV and IX with a 30 year
executed sentence. Or he can plead guilty straight-up to the 12
counts II-XIII. That will give him an opportunity to request a
sentence of less than 30 years, but he could also receive a
sentence of greater than 30 years. It is his choice. However, if a
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 7 of 24
plea agreement is going to be accepted, he must enter a plea of
guilty on or before August 5, 2011.
Petitioner’s Exhibit D.
[11] Crowder’s trial counsel testified that he received a letter from a deputy
prosecutor in July 2011 which stated that the deputy prosecutor had met with
the victim and that she would be dismissing Count I and went on to say that she
wanted Crowder to plead guilty to a series of counts. He testified he believed
that one option in the letter was for Crowder to plead to a set term of thirty
years and the other option was for him to plead straight up to a series of counts.
He testified that Crowder rejected the offer of thirty years and chose to plead
straight up to a series of counts, and that he recalled a separate conversation
with the deputy prosecutor during which she reminded him that she could still
technically proceed to trial on the count of child molesting as a class A felony
based upon the victim’s earlier statement. When asked if he advised Crowder
that he was “not really getting much of a benefit for the dismissal of the A
Felony,” trial counsel answered, “I didn’t because again, I didn’t read it that
way because her assessment that she could still technically proceed on the
victim’s prior statement as often occurs when victims, even another context,
recant or change their statement as to certain factors involved in the case.”
Post-Conviction Transcript at 11.
[12] On cross-examination, trial counsel indicated that Crowder rejected the thirty-
year deal based upon his conversations with a couple of inmates at the county
jail and another attorney in which he heard that the charges would have to be
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 8 of 24
served concurrent with one another and that they could not be served
consecutively. Trial counsel testified that he advised Crowder that that was not
correct and that the sentences could be served consecutively. When asked if he
advised Crowder that he could receive more than thirty years if he took the
open plea, trial counsel answered, “Definitely.” Id. at 14. He testified that
Crowder also wanted the opportunity to argue for a sentence less than thirty
years. When asked about the possibility of going to trial, Crowder stated:
“Trial wasn’t really part of the analysis because of the overwhelming amount of
evidence that the State had against him. He never really talked about exercising
that as an option, in my memory.” Id.
[13] Crowder testified that his trial counsel did not explain that the State said they
would dismiss the A felony due to the victim’s clarification of her age and that
he did not recall his attorney explaining the appellate waiver in the plea
agreement. When asked if he would have accepted the plea with the appellate
waiver if he knew he was not receiving a benefit for the waiver, Crowder
answered, “Absolutely not.” Id. at 23. He stated that he would have
considered the other plea or gone to trial.
[14] On cross-examination, Crowder testified:
I really did not want to go to trial. I figured I had already put my
daughter and my family through enough. I was guilty. I was
willing to own up to that. However, if any of the offers that were
presented to me were not in my mind of what I thought was
adequate or fair for what happened then I absolutely would have
gone to trial.
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 9 of 24
Id. at 26. Crowder also acknowledged that the plea he accepted allowed him to
argue for a sentence of less than thirty years. He testified that he had the
concept that he could not be sentenced to more than thirty years from
discussing it with other individuals. During re-cross examination, Crowder
testified that he would have seriously considered the thirty-year fixed plea, but
could not say for certain whether he would have accepted the offer.
[15] On March 22, 2017, the court denied Crowder’s petition. The order states in
part:
CONCLUSIONS OF LAW
*****
3. Mr. Crowder’s testimony [Findings of Fact, ¶ 7] establishes
that he was motivated to plead guilty because he knew he was
guilty, he did not want to put his daughter through a trial, and he
did not know of any defense he could have presented at trial. He
does not assert that the Court misled him, and he acknowledges
that the prosecutor did not mislead him, about the possibility of
being convicted on Count I. Post-Hearing Brief in Support of
Amended Post-Conviction Relief Petition (hereinafter
Petitioner’s Brief), at 6. The evidence establishes that [trial
counsel] did not advise him correctly on that point [Findings of
Fact, ¶¶ 5-6], but does not establish that the illusory possibility of
being convicted on Count I played any part in Mr. Crowder’s
decision to plead guilty rather than go to trial. Mr. Crowder now
asserts that, had he known he was getting no benefit for the
waiver of his right to appeal, “[h]e most likely would have
accepted the thirty-year fixed plea because he did not want to put
his daughter through trial” – not that he would have decided to
go to trial. Petitioner’s Brief, at 5. Before pleading guilty, he was
already aware that he was not guilty of the offense charged in
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 10 of 24
Count I because the victim was at least 14 years old at the time;
therefore, he repeatedly rejected plea offers calling for him to
plead guilty to that count. Id. at 2. Mr. Crowder did not testify,
and no evidence suggests, that he had any actual fear of being
convicted on Count I if he went to trial. In the language of
Willoughby [v. State, 792 N.E.2d 560, 563 (Ind. Ct. App. 2003),
trans. denied], although it appears that Mr. Crowder did hold an
incorrect belief about penal consequences, there is no evidence
that any resulting “intimidation” was “material to his decision to
plead guilty.” In short, no objective facts support the conclusion
that Mr. Crowder’s decision to plead guilty rather than go to trial
was “driven” by the illusory threat of conviction on Count I, nor
by any advice or lack of advice from [trial counsel] about the
possibility of conviction on that count. Furthermore, the strength
of the State’s case was very great, as indicated by [trial counsel’s]
acknowledgement that the evidence was overwhelming [Findings
of Fact, ¶ 6]; the prosecutor’s uncontradicted assertion that nine
(9) videos from Mr. Crowder’s cell phone depicted the offenses
[id., ¶ 4]; and Mr. Crowder’s own lack of knowledge of any
defense he could have presented at trial [id., ¶ 7]. Thus, two of
the three factors identified in Suarez [v. State, 967 N.E.2d 552,
555-556 (Ind. Ct. App. 2012), reh’g denied, trans. denied], strongly
tend to establish that Mr. Crowder was not induced to plead
guilty by the illusory threat of conviction on Count I, nor by
deficient advice from [trial counsel] regarding that count.
4. . . . . Through his own fault in disregarding relevant advice
from [trial counsel], and relying on bad advice from fellow
inmates as well as his own conjecture that all his offenses over a
period of months might have formed a single episode of criminal
conduct, Mr. Crowder erroneously believed that the benefit
conferred by the open plea offer he accepted was greater than it
really was [Findings of Fact, ¶¶ 6-7]. . . . Mr. Crowder’s guilty
plea cannot be invalidated as involuntary on the ground that any
benefit actually conferred by the plea did not include a limitation
of his sentencing exposure to 30 years, because he was not misled
into holding his incorrect belief that it did include such a
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 11 of 24
limitation by the judge, the prosecutor, or defense counsel – and
indeed defense counsel advised him to the contrary [Findings of
Fact, ¶ 6].
5. In summary, Mr. Crowder’s guilty plea cannot be invalidated
as involuntary because no one misled him to believe he could
actually be convicted on Count I, and (more importantly)
because he has not shown that he would have decided to go to
trial rather than plead guilty had he known that Count I was to
be dismissed in any event. Of the three factors identified in
Suarez, 967 N.E.2d at 555-556, two (objective factors establishing
that the decision to plead guilty was “driven” by an illusory
threat or erroneous advice, and the strength of the State’s case)
strongly tend to establish that Mr. Crowder’s guilty plea was
voluntary, and the third (the benefit provided by the guilty plea)
does not tend to establish that it was not voluntary. [Trial
counsel] did fail to advise Mr. Crowder that Count I was to be
dismissed in any event, but Mr. Crowder has not shown a
reasonable probability that he would have decided to go to trial
rather than plead guilty if he had been so advised, and he tacitly
admits as much. Petitioner’s Brief, at 10 (Mr. Crowder no longer
asserts that he would have decided to go to trial, but asserts only
that “there is a reasonable probability that he would have chosen
the [30-year] fixed plea or entered into an open plea without a
written plea agreement to preserve his appellate rights.”
*****
10. There was no point at which Mr. Crowder could have
entered a plea of guilty to Counts II through XIII without a plea
agreement (thereby preserving his right to appeal his sentence)
after the dismissal of Count I [Findings of Fact, ¶ 5]. An open
plea offer with no waiver of his right to appeal his sentence,
otherwise identical to the offer he did accept, was not tendered.
It is not clear whether Mr. Crowder would have accepted such an
offer had it been tendered.
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 12 of 24
Mr. Crowder did not testify that he would have done so
[Findings of Fact, ¶ 7]; he did not tell [trial counsel] that he
wished to do so [id., ¶ 6]; and he expressly disclaimed any
interest in doing so at the guilty plea hearing [id., ¶ 4]. On the
other hand, as Count I was to be dismissed in any event, Mr.
Crowder received no real benefit in exchange for the waiver of
his right to appeal, and [trial counsel] appears to have erred in
overlooking this point [id., ¶¶ 5-6]. It would not be difficult to see
a reasonable probability that, had [trial counsel] pointed out to
the prosecutor that Mr. Crowder was getting no real benefit in
exchange for his waiver of the right to appeal, the prosecutor
would have decided to revise the plea offer to eliminate the
waiver, rather than take Mr. Crowder’s remaining 12 counts to
trial. In that event, it appears probable that Mr. Crowder would
have accepted that revised plea offer. Thus, on the supposition
that [trial counsel’s] performance in failing to do so was deficient,
Mr. Crowder’s defense would have suffered prejudice to the
extent that he lost his right to appeal his sentence. See Taylor v.
State, 840 N.E.2d 324, 331 (Ind. 2006) (if counsel’s performance
was deficient, defendant may prove prejudice by showing a
reasonable probability – that is, a probability “sufficient to
undermine confidence in the outcome” – that, but for the claimed
errors, the result of the proceeding would have been different);
[Missouri v. Frye, 132 S.Ct. 1399, 1409-1410 (2012)] (defendant
may prove prejudice by showing reasonable probability that he
would have accepted a more favorable plea offer if not for
counsel’s error).
11. The only remedy available to Mr. Crowder on the
suppositions set forth in paragraph 10 above, however, would be
to restore him to the same position he would have occupied if not
for [trial counsel’s] error in failing to procure an open plea
agreement with no waiver of the right to appeal. See Marshall [v.
State, 621 N.E.2d 308, 318 (Ind. 1993)], Flanders [v. State, 955
N.E.2d 732, 752 (Ind. Ct. App. 2011), reh’g denied, trans. denied].
This could only be done by severing the waiver provision and
restoring Mr. Crowder’s right to pursue a timely appeal of his
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 13 of 24
sentence, the same right he would have possessed at the time of
sentencing if not for the waiver. See Frye, 132 S.Ct. 1399; Lee v.
State, 816 N.E.2d 35, 39-40 (Ind. 2004) (a court can sever an
illegal provision of a plea agreement, and enforce the remainder,
if the basic purpose of the agreement has not been frustrated). As
Mr. Crowder now asserts only that “[t]he proper remedy in this
case is for the plea to be vacated,” not that his right to appeal his
sentence for his existing convictions should be restored
[Petitioner’s Brief, at 10-11], it appears that he has waived any
claim of entitlement to the only arguably available remedy.
12. [Crowder] has failed to prove his claim on the merits by a
preponderance of the evidence.
13. The Petition for Post-Conviction Relief is hereby denied.
Appellant’s Appendix Volume III at 134-143.
Discussion
[16] Before addressing Crowder’s allegations of error, we note the general standard
under which we review a post-conviction court’s denial of a 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.
Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5).
When appealing from the denial of post-conviction relief, the petitioner stands
in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d
at 679. On review, we will not reverse the judgment unless the evidence as a
whole unerringly and unmistakably leads to a conclusion opposite that reached
by the post-conviction court. Id. “A post-conviction court’s findings and
judgment will be reversed only upon a showing of clear error – that which
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 14 of 24
leaves us with a definite and firm conviction that a mistake has been made.” Id.
In this review, we accept findings of fact unless clearly erroneous, but we
accord no deference to conclusions of law. Id. The post-conviction court is the
sole judge of the weight of the evidence and the credibility of witnesses. Id.
[17] Crowder argues that his plea was not knowing, intelligent, or voluntary where
he did not know the dismissal of the charge of child molesting as a class A
felony was due to a lack of evidence and that he received no material benefit
while also waiving his appellate rights. He argues that the post-conviction court
clearly erred when it held that he did not show that the dismissal of Count I was
a motivating factor in his decision to accept the open plea. In other words, he
asserts that he accepted the open plea under the illusory threat that the State
would proceed on Count I unless he accepted either of the two proffered pleas.
Crowder contends that he received ineffective assistance of counsel when his
counsel failed to advise him that the open plea provided no benefit. He also
asserts that he waived his right to appeal his sentence, but that he did not do so
knowingly, intelligently, and voluntarily. He argues that the post-conviction
court erred when it determined that he might be entitled to a direct appeal of his
sentence but waived that remedy by advocating for vacating his plea agreement.
He requests that we reverse the denial of post-conviction relief and order that
his guilty plea be vacated or, at a minimum, order that his appellate waiver be
severed from his plea agreement so he may proceed to appellate review of his
sentence.
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 15 of 24
[18] The State argues that Crowder was not motivated to plead guilty by an illusory
threat of prosecution for child molesting as a class A felony and that his plea
offered the benefits of allowing him to argue for a sentence less than thirty
years, unlike an earlier plea offer, and avoid the futility of a trial. The State
contends that Crowder’s trial counsel was not ineffective, and that Crowder’s
waiver of his right to appeal his sentence was knowing and voluntary. It also
contends that, given Crowder’s repeated failures to request that he be allowed
to appeal his sentence, the post-conviction court properly determined that he
waived any claim of entitlement. It asserts that alternatively, should this Court
find that Crowder’s appellate waiver was not knowing or voluntary or that trial
counsel was ineffective in failing to advise Crowder that his appellate waiver
inured no benefit to him, the remedy that would restore Crowder to the same
position he would have occupied if not for these errors would be to reinstate his
right to appeal his sentence. In reply, Crowder argues in part that he did not
waive any remedy.
[19] With respect to the voluntariness of his guilty plea, the Indiana Supreme Court
has held that a plea entered after the trial judge has reviewed the various rights
which a defendant is waiving and made the inquiries called for by statute is
unlikely to be found wanting in a collateral attack. State v. Moore, 678 N.E.2d
1258, 1265 (Ind. 1997), reh’g denied, cert. denied, 523 U.S. 1079 (1998).
However, defendants who can show that they were coerced or misled into
pleading guilty by the judge, prosecutor or defense counsel will present
colorable claims for relief. Id. at 1266. In assessing the voluntariness of the
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 16 of 24
plea, we review all the evidence before the court which heard his post-
conviction petition, including testimony given at the post-conviction hearing,
the transcript of the petitioner’s original sentencing, and any plea agreements or
other exhibits which are a part of the record. Id. In Moore, the Court held that
“[v]oluntariness is also distinct from ineffective assistance of counsel, despite
some references in our cases to pleas as involuntary” and that voluntariness
“focuses on whether the defendant knowingly and freely entered the plea, in
contrast to ineffective assistance, which turns on the performance of counsel
and resulting prejudice.” Id.
[20] Generally, to prevail on a claim of ineffective assistance of counsel a petitioner
must demonstrate both that his counsel’s performance was deficient and that
the petitioner was prejudiced by the deficient performance. French v. State, 778
N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls
below an objective standard of reasonableness based on prevailing professional
norms. Id. 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 different. Id. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.
Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong
will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective
assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 17 of 24
[21] When considering a claim of ineffective assistance of counsel, a “strong
presumption arises that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.”
Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance
is presumed effective, and a defendant must offer strong and convincing
evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73
(Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will
not support a claim of ineffective assistance of counsel. Clark v. State, 668
N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.
Ct. 1438 (1997).
[22] Because Crowder was convicted pursuant to a guilty plea, we analyze his
claims under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura categorizes two
main types of ineffective assistance of counsel cases. Smith v. State, 770 N.E.2d
290, 295 (Ind. 2002). The first category relates to “an unutilized defense or
failure to mitigate a penalty.” Willoughby v. State, 792 N.E.2d 560, 563 (Ind. Ct.
App. 2003), trans. denied. The second relates to “an improper advisement of
penal consequences,” and this category has two subcategories: (1) “claims of
intimidation by exaggerated penalty or enticement by an understated maximum
exposure;” or (2) “claims of incorrect advice as to the law.” Id. Crowder’s
claim, which is that his trial counsel failed to advise him that the open plea
provided no benefit, appears to fall under the second category.
[23] With respect to claims of exaggerated penalty, the Segura Court stated:
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 18 of 24
Whether viewed as ineffective assistance of counsel or an
involuntary plea, the postconviction court must resolve the factual
issue of the materiality of the bad advice in the decision to plead,
and postconviction relief may be granted if the plea can be shown
to have been influenced by counsel’s error. However, if the
postconviction court finds that the petitioner would have pleaded
guilty even if competently advised as to the penal consequences,
the error in advice is immaterial to the decision to plead and there
is no prejudice.
Segura, 749 N.E.2d at 504-505. See also Willoughby, 792 N.E.2d at 563 (holding
that it was immaterial whether the petitioner’s claim was of an involuntary plea
or ineffective assistance and that under either standard, the petitioner must
demonstrate that the intimidation resulting from his trial counsel’s failure to
inform him of the single larceny rule was material to his decision to plead
guilty); Graham v. State, 941 N.E.2d 1091, 1101-1102 (Ind. Ct. App. 2011)
(holding that the standard set out in Segura and Willoughby was equally
applicable to straightforward claims of an involuntary or illusory plea), aff’d on
reh’g, 947 N.E.2d 962.
[24] In Segura, with respect to prejudice from advice that omits or misdescribes penal
consequences, the Court held:
We see no reason to require revisiting a guilty plea if, at the end
of the day, the inevitable result is conviction and the same
sentence. Yet, we agree that in extreme cases, a credible scenario
can be posited that results in a truly innocent defendant pleading
guilty because of incorrect advice as to the consequences. The
cases where a showing of prejudice from incorrect advice as to
the inevitable consequences of conviction will be able to be made
may be few. If such a circumstance is shown, however, the
defendant should not be stripped of the presumption of
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 19 of 24
innocence, the requirement of proof beyond a reasonable doubt,
and the other procedural rights that are not available in
postconviction proceedings. To require a showing of innocence
to obtain a new trial would have that effect. Accordingly, we
conclude that in order to state a claim for postconviction relief a
petitioner may not simply allege that a plea would not have been
entered. Nor is the petitioner’s conclusory testimony to that
effect sufficient to prove prejudice. To state a claim of prejudice
from counsel’s omission or misdescription of penal consequences
that attaches to both a plea and a conviction at trial, the
petitioner must allege, in Hill’s terms, “special circumstances,”1
or, as others have put it, “objective facts” 2 supporting the
conclusion that the decision to plead was driven by the erroneous
advice.
We believe a showing of prejudice from incorrect advice as to the
penal consequences is to be judged by an objective standard, i.e.,
there must be a showing of facts that support a reasonable
probability that the hypothetical reasonable defendant would
have elected to go to trial if properly advised. . . . [A] petitioner
may be entitled to relief if there is an objectively credible factual
and legal basis from which it may be concluded 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.”
Hill, 474 U.S. at 59, 106 S. Ct. 366.
. . . [F]or claims relating to penal consequences, a petitioner must
establish, by objective facts, circumstances that support the
conclusion that counsel’s errors in advice as to penal
consequences were material to the decision to plead. Merely
alleging that the petitioner would not have pleaded is insufficient.
1
Hill [v. Lockhart, 474 U.S. 52, 60, 106 S. Ct. 366 (1985)].
2
McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir. 1996); State v. Donald, 198 Ariz. 406,
10 P.3d 1193, 1201 (Ct. App. 2000)[, review denied, cert. denied, 534 U.S. 825, 122 S. Ct. 63(2001)].
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 20 of 24
Rather, specific facts, in addition to the petitioner’s conclusory
allegation, must establish an objective reasonable probability that
competent representation would have caused the petitioner not to
enter a plea.
Segura, 749 N.E.2d at 507.
[25] Relying upon Segura, this Court later held, “when an error in advice supports a
claim of intimidation by exaggerated penalty, a petitioner must establish
specific facts that lead to the conclusion that a reasonable defendant would not
have entered a plea had the error in advice not been committed.” Willoughby,
792 N.E.2d at 564. “In addition to any special circumstances shown by the
defendant, we also think it appropriate to consider the strength of the State’s
case.” Suarez v. State, 967 N.E.2d 552, 556 (Ind. Ct. App. 2012), reh’g denied,
trans. denied. “It is apparent that any reasonable defendant would take this into
account when pondering a guilty plea.” Id. It is “also appropriate to consider
the benefit conferred upon the defendant by his guilty plea.” Id.[26] The post-conviction court concluded that the evidence does not establish that
the illusory possibility of being convicted on Count I played any part in
Crowder’s decision to plead guilty rather than go to trial. The record reveals
that Crowder rejected the thirty-year deal because of his understanding based
upon conversations with others that the charges would have to be served
concurrently with each other and they could not be served consecutively.
Crowder’s trial counsel testified that he advised Crowder that that was not
correct, that the sentences could be served consecutively, and that he could
receive more than thirty years if he took the open plea. Trial counsel testified
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 21 of 24
that Crowder wanted the opportunity to argue for a sentence of less than thirty
years, that trial “wasn’t really part of the analysis because of the overwhelming
amount of evidence that the State had against him,” and that Crowder “never
really talked about exercising that as an option, in my memory.” Post-
Conviction Transcript at 14. While Crowder testified that he would not have
accepted the plea agreement he ultimately accepted, he also testified that he did
not want to go to trial, had already put his daughter and family through
enough, was guilty, was willing to own up to that, the plea he accepted allowed
him to argue for a sentence of less than thirty years, and that he had the concept
that he could not be sentenced to more than thirty years from discussing it with
individuals other than his trial counsel. Under the circumstances, we cannot
say that the evidence as a whole unerringly and unmistakably leads to a
conclusion opposite that reached by the post-conviction court.
[27] With respect to the waiver provision in Crowder’s plea agreement, the State
does not challenge the post-conviction court’s findings that Crowder’s trial
counsel did not advise him that the plea agreement provided no benefit to him,
that trial counsel would not have advised Crowder to accept an open plea if he
knew it provided no benefit, and that trial counsel did not ask the prosecutor to
remove the waiver after learning that Count I was to be dismissed in any event.
Also, the State does not challenge the post-conviction court’s conclusions that
Crowder’s trial counsel failed to advise him that Count I was to be dismissed in
any event or that his trial counsel “appears to have erred in overlooking this
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 22 of 24
point.” Appellant’s Appendix Volume III at 110. We also observe that the
post-conviction court concluded:
It would not be difficult to see a reasonable probability that, had
[trial counsel] pointed out to the prosecutor that Mr. Crowder
was getting no real benefit in exchange for his waiver of the right
to appeal, the prosecutor would have decided to revise the plea
offer to eliminate the waiver, rather than take Mr. Crowder’s
remaining 12 counts to trial.
Id.[28] We note that Crowder’s amendment to his petition asserted that his counsel
should have advised him to not accept a plea agreement that waived his
appellate rights when he received no benefit for the waiver. While Crowder’s
post-hearing brief stated that the proper remedy was for the plea to be vacated,
we conclude that he did not explicitly waive the remedy of severing the
provision related to the waiver of his right to appeal his sentence from the plea
agreement in the event that the post-conviction court found that vacation of the
plea agreement was not warranted. Further, his proposed findings of fact
stated:
[If this court finds Crowder did not meet his burden to show his
entire guilty plea must be vacated:] This court concludes that
paragraph nine is void, but the remainder of the plea agreement
should remain intact. This court does not find that Crowder has
waived this form of relief by arguing that the proper remedy is to
vacate the appeal, especially where Crowder maintains in his
post-hearing brief that the waiver is void. Pet.’s Br. at 7. This
court directs the Allen County Public defender to appoint
counsel to perfect an appeal of Crowder’s sentence.
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 23 of 24
Id. at 127 (bracketed text appears in original).
[29] The State asserts that, should this Court find that Crowder’s appellate waiver
was not knowing or voluntary or that the trial counsel was ineffective in failing
to advise him that his appellate waiver inured no benefit to him, the proper
remedy would be to reinstate his right to appeal his sentence.3 Under these
circumstances, we reverse the post-conviction court’s finding that Crowder
waived the alternative remedy of permitting him to pursue an appeal of his
sentence.
Conclusion
[30] For the foregoing reasons, we affirm the post-conviction court’s order to the
extent it upheld the plea agreement and reverse that portion of the court’s order
finding that Crowder waived the remedy of permitting him to pursue an appeal
of his sentence.
[31] Affirmed in part and reversed in part.
Najam, J., and Kirsch, J., concur.
3
Both the State and Crowder cite Lee v State, 816 N.E. 2d 35 (Ind. 2004), also cited in the post-conviction
court’s order, in support of severing a provision of a plea agreement.
Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 24 of 24