Brandan J. Franze v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
court except for the purpose of establishing Oct 29 2020, 10:11 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Chris M. Teagle Curtis T. Hill, Jr.
Muncie, Indiana Attorney General of Indiana
Samuel J. Dayton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brandan J. Franze, October 29, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-523
v. Appeal from the
Blackford Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. J. Nicholas Barry, Judge
Trial Court Cause No.
05D01-1907-F6-226
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-523 | October 29, 2020 Page 1 of 22
[1] Brandan J. Franze (“Franze”) was convicted after a jury trial of battery1 as a
Class A misdemeanor and criminal recklessness 2 as a Level 6 felony and was
sentenced to an aggregate sentence of 910 days executed. Franze appeals and
raises the following restated issues for our review:
I. Whether the trial court abused its discretion when it found
that there were not reasonable grounds to believe that
Franze lacked the ability to understand the proceedings
and assist in the preparation of his defense;
II. Whether the trial court abused its discretion when it
denied Franze’s trial counsel’s motion to withdraw and
motion to continue the trial; and
III. Whether Franze received ineffective assistance of trial
counsel.
[2] We affirm.
Facts and Procedural History
[3] On June 30, 2019, Casey Thornburgh (“Thornburgh”) was spending time with
his children at his ex-wife’s house, and at around 10:30 p.m., he decided to
leave. Tr. at 64. Thornburgh began walking home, and as he was walking
down the sidewalk, he was stopped by Franze, who yelled, “Hey! Who are
you” to Thornburgh. Id. at 67-68. Thornburgh asked Franze the same
1
See Ind. Code § 35-42-2-1(c)(1), (d)(1).
2
See Ind. Code § 35-42-2-2(a), (b)(1)(A).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-523 | October 29, 2020 Page 2 of 22
question, and Franze identified himself by name. Id. at 68. Franze walked
toward Thornburgh, and Thornburgh saw that Franze had what appeared to be
a black handgun.3 Id. at 68, 70. Franze began asking Thornburgh why
Thornburgh had been underneath Franze’s house, and Thornburgh repeatedly
told him that he had not been under Franze’s house. Id. at 68-69. Thornburgh
told Franze that he was walking home after visiting his children, and Franze
told him that he knew that Thornburgh had been to his house before, and
Thornburgh said, “You’re right. I had been at your house. I’m your FedEx
driver. I’ve delivered to you a few times.” Id. at 69. Franze said, “I knew it,”
and pointed his gun at Thornburgh’s head. Id. at 70.
[4] Thornburgh then attempted to get the gun away from Franze by using his left
arm to knock Franze’s right arm down and trying to knock Franze to the
ground. Id. at 70-71. When Thornburgh did this, he saw a flash of light and
believed that the gun discharged, although he did not remember hearing
anything. Id. at 73. The gun hit the ground, and Thornburgh thought to
himself, “I need to get control of the gun, or I’m going to end up dead.” Id. at
71. As Thornburgh bent down to pick up the gun, he felt Franze’s arm reach
around his neck and begin to choke him. Id. Thornburgh fell to the ground and
was lying face down, but he was able to keep his hand on top of the gun. Id.3
The gun that the police later recovered was either a pellet gun or a BB gun that at first glance “would appear
to be similar to a firearm.” Tr. at 119, 124-25, 127, 129.
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Franze continued to ask Thornburgh why he was underneath Franze’s house,
and Thornburgh continued to deny that he had been under the house. Id. The
next thing Thornburgh remembered was that, “everything went black.” Id.When Thornburgh regained consciousness, Franze was standing over him and
holding the gun. Id. at 73. Franze asked if Thornburgh was okay, and then he
told Thornburgh to “get the ‘f’ out of . . . there.” Id. at 72, 90-91. Thornburgh
left and called 911. Id. at 73.
[5] On July 2, 2019, the State charged Franze with Class A misdemeanor battery,
Level 6 felony strangulation, and Level 6 felony criminal recklessness.
Appellant’s App. Vol. 2 at 21-22. On December 26, 2019, Franze’s trial counsel
filed a motion to withdraw his appearance on the basis that Franze had failed to
pay trial counsel as agreed, and that motion was denied on December 29, 2019.
Id. at 54-55, 56. On January 2, 2020, trial counsel filed another motion to
withdraw, this time alleging that there had been a breakdown of the attorney-
client relationship, that Franze had failed to fulfill his obligations to his
attorney, and that Franze’s failure to cooperate with counsel negatively
impacted counsel’s ability to serve as Franze’s attorney and to defend him
against the charges. Id. at 58.
[6] The trial court held a final pretrial hearing on January 9, 2020 at which
Franze’s trial counsel explained that Franze had asked him to call a certain
witness, and trial counsel had spoken with those witnesses who said that “they
don’t have anything.” Tr. at 4, 13. Trial counsel indicated that “things are
trying to be put into the witness’s mouth” and that he had told Franze that he
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would not “call a witness and suborn perjury.” Id. at 13. Trial counsel
explained that this disagreement was an example of why he felt that he
“need[ed] to be off of this case.” Id. Trial counsel also explained that Franze
had “freaked out” when he saw templates in the case file that “had something
to do with child molest” and that “he swore [trial counsel] was trying to get him
for child molesting.” Id. at 7-8.
[7] Franze began disputing the expenses for which trial counsel billed him and
whether he had been provided with discovery, and at that time, trial counsel
orally moved to hold a competency hearing. Id. at 14-15. At that time, Franze
indicated that he felt like he was “having a little bit of a panic attack” and said
that he did not have his medicine. Id. at 16. The trial court asked how long he
had gone without medication, and Franze explained that he had been
prescribed medication about a year before, but he did not like the medicine. Id.
at 16-17. The trial court asked whether Franze would be able to control
himself, and Franze stated that he could. Id. at 17. The trial court explained to
Franze that at trial he would not be allowed to raise his hand and “start blurting
out,” and Franze indicated that he understood. Id. at 16. Franze then
explained that he had seen documents that confused him and that they had
“freaked [him] out,” and he apologized. Id. at 17. Trial counsel told the trial
court that he believed that Franze still did not understand what he had seen in
his file, but Franze replied that he did understand, stating, “I grasp that you said
that it is [a] blank form. Right? That you change as it fits my case?” Id.Court of Appeals of Indiana | Memorandum Decision 20A-CR-523 | October 29, 2020 Page 5 of 22
[8] As the hearing progressed, trial counsel asked to clarify whether evidence about
what happened when Franze was taken into custody would be excluded from
trial, and Franze objected, indicating that he thought some of this evidence was
important to his case. Id. at 18-19. The trial court explained to Franze that he
“speak[s] through [his] attorney” and that he could not “just disagree with [his]
attorney” and speak out about it. Id. at 19. Franze replied that he understood,
but trial counsel said that disagreements over what evidence should be admitted
at trial were an issue for Franze and trial counsel. Id. The trial court said,
“Well, I don’t see where alternate counsel is going to remedy this, so that’s the
way I am looking at [this situation].” Id. Trial counsel stated that he
understood that the trial court was denying the motion for a competency
evaluation hearing and that he would be filing a written motion. Id.[9] After the hearing concluded on January 9, 2020, Franze’s trial counsel filed a
written motion to have Franze examined for competency. Appellant’s App. Vol.
2 at 61-62. On January 10, 2020, the trial court denied the motion and found
that there were no reasonable grounds to delay the trial by having the defendant
examined by a mental health examiner. Id. at 63-64. On January 22, 2020, a
jury trial was held, and at the beginning of the trial, a hearing was held at which
trial counsel renewed his motion for a competency evaluation, asserting that, at
the time of the pretrial deposition of the victim, Franze “had completely
devolved . . . was paranoid . . . [s]omewhat delusional” and “was not
cooperating with [counsel] in preparation for [the] hearing.” Tr. at 29-31. Trial
counsel also mentioned that the officers who responded to Franze’s house the
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night of the incident talked about doing an emergency detainment order on
Franze that night. Id. at 29. In response to trial counsel’s argument, the trial
court said, “Your client was agitated at the final pretrial. He was upset. I
didn’t see anything that would lead me to believe that he was not competent to
understand the proceeding or assist in a defense.” Id. at 31. The trial court
further noted the following:
Maybe there was a little bit of a personal rift going on between
you and he, but . . . he has presented in Court before, as he
indicated[,] for infraction trials. He’s understood the
proceedings, and that wasn’t too long ago within the past six,
eight months. He understood the proceedings. He was able to
understand the Court’s ruling, understand the evidence. At one
time at the final pretrial, he objected. . . . I just didn’t see
anything that would lead me to believe that he didn’t understand.
Id.[10] During this exchange, Franze had not yet appeared for the trial, and the trial
court offered trial counsel an opportunity to move to continue the jury trial. Id.
at 32. Franze eventually arrived, and the trial proceeded. Id. at 35. After voir
dire was completed, trial counsel renewed his motion to have Franze’s
competency evaluated and asked for the trial court to “take some testimony
from [Franze] concerning the jury.” Id. at 36. The trial court then questioned
Franze under oath and outside the presence of the jury. Id.[11] During this questioning, Franze stated that he was thirty-three years old, able to
recall his address, explained that he had lived at his address for over two years,
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and advised that the highest level of education he completed was tenth grade.
Id. at 36-37, 39. Franze indicated that he understood what took place during
jury selection, “We sat down. We went through, we done [sic] jury selection.
He, obviously, both sides struck . . . and got rid of whoever felt like they needed
to get rid of. But, and then now . . . we’re at recess.” Id. at 37. Franze then
explained that he knew that the trial was coming up next and that the hearing
was occurring because he “had an issue with a few people that was [sic] on the
jury.” Id. Franze thought that one of the jurors had been a coworker and
friend of his estranged wife. Id. The trial court noted that it had observed
Franze conferring with his attorney, and Franze confirmed that he had
discussed the prospective jurors with trial counsel, that he did not believe that
he had enough time to discuss the potential jurors, but that he did understand
what was going on. Id. at 38-39. Franze added, “Like I understand, because
I’ve done this with you guys before. But what I don’t understand is how
quickly and unprepared I was with jury. Picking the jury. Who was on there?
How they relate in my life.” Id. at 39. The trial court confirmed with Franze
that he has participated in a jury trial as a defendant in the past and that he was
able to communicate with his attorney, voice his concerns, and participate with
his attorney. Id. at 39-40. Franze also said that he understood that his trial
counsel had moved to evaluate whether he was competent to stand trial. Id. at
40. After concluding the hearing, the trial court found that
there [is] not sufficient reasonable justification to order a
competency exam for the defendant. The defendant seems, in
the opinion of the Court; while he may not agree with the jury,
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he is able to understand the nature [of the] proceedings as far as
where we are in trial proceedings. Where we are headed, and he
does have the ability to participate in his defense with his
attorney.
Id. at 43. The trial court then denied trial counsel’s motion for a competency
evaluation. Id.[12] A short time later, but before the trial began, Franze indicated that he was
“having a little trouble understanding” the proceedings. Id. at 45. The trial
court explained in detail how the trial could proceed. Id. at 45-47. Franze
stated that he thought that maybe he did need to be evaluated as to whether he
could stand trial because he was “missing” some of what had happened and did
not feel like he was “prepared.” Id. at 47. The trial court concluded that based
on Franze’s testimony under oath, that it was “finding that [Franze] do[es] have
ability to participate in [his] defense and understand the proceedings” and that
Franze was competent to stand trial. Id. at 48, 50.
[13] At the conclusion of the jury trial, Franze was found guilty of Class A
misdemeanor battery and Level 6 felony criminal recklessness but not guilty of
Level 6 felony strangulation. Appellant’s App. Vol. 2 at 129-31. The trial court
sentenced Franze to 365 days for his battery conviction and 910 days for his
criminal recklessness conviction, to be served concurrently for an aggregate
executed sentence of 910 days. Id. at 150-52. Franze now appeals.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-523 | October 29, 2020 Page 9 of 22
Discussion and Decision
I. Competency to Stand Trial
[14] We have previously determined that “the conviction of an incompetent
defendant is a denial of federal due process and a denial of a state statutory
right as well.” Faris v. State, 901 N.E.2d 1123, 1125 (Ind. Ct. App. 2009), trans.
denied. A defendant is not competent to stand trial when he is unable to
understand the proceedings and assist in the preparation of his defense. Mast v.
State, 914 N.E.2d 851, 856 (Ind. Ct. App. 2009), trans. denied. Indiana Code
section 35-36-3-1 states in pertinent part:
(a) If at any time before the final submission of any criminal case
to the court or the jury trying the case, the court has reasonable
grounds for believing that the defendant lacks the ability to
understand the proceedings and assist in the preparation of a
defense, the court shall immediately fix a time for a hearing to
determine whether the defendant has that ability. The court shall
appoint two (2) or three (3) competent, disinterested:
(1) psychiatrists;
(2) psychologists endorsed by the Indiana state board of
examiners in psychology as health service providers in
psychology; or
(3) physicians;
who have expertise in determining competency. . . .
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Ind. Code § 35-36-3-1(a). However, the right to a competency hearing is not
absolute. Minnick v. State, 965 N.E.2d 124, 131 (Ind. Ct. App. 2012), trans.
denied. Instead, such a hearing is required only when a trial court is confronted
with evidence creating a reasonable or bona fide doubt as to a defendant’s
competency. Id. The trial court judge’s observations of a defendant in court
can serve as an adequate basis for finding that a competency hearing is not
necessary. Gibbs v. State, 952 N.E.2d 214, 220 (Ind. Ct. App. 2011), trans.
denied. Although Indiana Code section 35-36-3-1 contains provisions for the
appointment of medical professionals, those procedures “are only required
under [the statute] if ‘the court has reasonable grounds for believing that the
defendant lacks the ability to understand the proceedings and assist in the
preparation of his defense.’” Cotton v. State, 753 N.E.2d 589, 591 (Ind. 2001)
(quoting Ind Code § 35-36-3-1).
[15] The decision regarding whether there is a reasonable doubt is within the trial
court’s discretion and depends upon the specific facts and circumstances of each
case. Minnick, 965 N.E.2d at 131. We will only reverse the trial court's
decision if we find that the trial court has abused its discretion. Id. The trial
court has abused its discretion when its decision is clearly against the logic and
effect of the facts and circumstances before the court or when the trial court has
misinterpreted the law. Id. at 131-32.
[16] Franze argues that the trial court abused its discretion when it failed to conduct
an evidentiary hearing pursuant to Indiana Code section 35-36-3-1 as to his
competency to stand trial. Franze contends that the statements made by his
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trial counsel that Franze was “devolved, paranoid, and delusional and
incompetent to stand trial,” during the final pretrial hearing and the statement
of the responding officers about obtaining an emergency detainment order for
him on the night of the crimes, together with Franze’s statements regarding the
treatment he had received for his psychological problems and the medications
he had been prescribed all point to reasonable grounds for a competency
hearing to be held. He further asserts that there were reasonable grounds to
believe he could not understand the proceedings and assist in the preparation of
his defense, and that although the trial court made some effort to conduct a
hearing in accordance with the statute, it only questioned Franze as to his
understanding of the jury trial process but failed to inquire as to whether or not
Franze could effectively assist his counsel in the preparation of his defense and
failed to appoint medical professionals as set forth in the statute.
[17] In the present case, trial counsel made several requests for the trial court to
order a competency evaluation for Franze, including an oral motion at the final
pretrial hearing, a written motion the same day, and another oral motion on the
morning of the jury trial. At the final pretrial hearing, in the written motion on
the same date, and in an oral motion at a pretrial hearing on the morning of the
jury trial, trial counsel mainly focused on his interactions with Franze during
trial preparation, and trial counsel’s concerns focused on differences of opinion
that Franze had about what evidence should be admitted at trial and what
witnesses should be called to testify and that there was an issue where Franze
observed a blank template for a motion in limine that referred to child
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molesting in his file and “freaked out.” Tr. at 8, 15-16, 17, 19, 29-31; Appellant’s
App. Vol. 2 at 61-62. Franze explained that he had seen documents that
confused him and that they had “freaked [him] out,” and he apologized. Id. at
17. Trial counsel told the trial court that he believed that Franze still did not
understand what he had seen in his file, but Franze replied that he did
understand, stating, “I grasp that you said that it is [a] blank form. Right? That
you change as it fits my case?” Id.
[18] On the morning of the jury trial, trial counsel stated that at the time of the
pretrial deposition of the victim, Franze “had completely devolved . . . was
paranoid . . . [s]omewhat delusional” and “was not cooperating with [counsel]
in preparation for [the] hearing.” Tr. at 29-31. Trial counsel also mentioned
that the officers who responded to Franze’s house the night of the incident
talked about doing an emergency detainment order on Franze that night. Id. at
29. After the completion of voir dire, trial counsel renewed his motion for a
competency evaluation based on statements Franze had made to him about the
jury. Id. at 36. The trial court permitted trial counsel to examine Franze under
oath outside the presence of the jury, and the trial court followed up with
questions of its own. Id. at 36-43. When Franze realized that he did not fully
understand the trial court’s separation of witnesses order, he renewed the
request for a competency evaluation himself. Id. at 44-45.
[19] Although Franze appeared to have experienced stress or anxiety about the
criminal proceedings, he was capable of listening to his trial counsel and
providing information to assist his trial counsel. Id. at 9-10, 31, 38, 40. During
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the questioning of Franze, he stated that he was thirty-three years old, able to
recall his address, explained that he had lived at his address for over two years,
and advised that the highest level of education he completed was tenth grade.
Id. at 36-37, 39. Franze indicated that he understood what took place during
jury selection, and explained that he knew that the trial was coming up next
and that the hearing was occurring because he “had an issue with a few people
that was [sic] on the jury,” which included that he thought that one of the jurors
had been a coworker and friend of his estranged wife. Id. at 37. The trial court
noted that it had observed Franze conferring with his trial counsel, and Franze
confirmed that he had discussed the prospective jurors with trial counsel and
that he did not believe that he had enough time to discuss the potential jurors,
but that he did understand what was going on. Id. at 38-39. Franze added,
“Like I understand, because I’ve done this with you guys before. But what I
don’t understand is how quickly and unprepared I was with jury. Picking the
jury. Who was on there? How they relate in my life.” Id. at 39. The trial court
confirmed with Franze that he has participated in a jury trial as a defendant in
the past and that he was able to communicate with his current trial counsel,
voice his concerns, and participate with counsel. Id. at 39-40. Franze also said
that he understood that his counsel had moved to evaluate whether he was
competent to stand trial. Id. at 40.
[20] The record showed that Franze was capable of listening to what his trial
counsel was telling him and communicate with him. It showed that Franze
was able to understand what his counsel told him regarding the
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misunderstanding about the template and acknowledge that he made a mistake
and apologize for freaking out. Similarly, after the completion of voir dire,
Franze was able to discuss with his trial counsel and to articulate to the trial
court that he believed that one of the jurors might have been a friend and
colleague of his estranged wife. Id. at 36-38, 41. While Franze may have not
have given a perfect description of jury selection, he was able to explain in
simple terms what had transpired and that he understood the purpose of jury
selection and would be able to assist his attorney. Id. at 37. By stating that he
was concerned that one of the jurors may have known his wife, Franze
demonstrated that he was able to assist in his own defense. The trial court’s
questioning of Franze was an appropriate way to determine if reasonable
grounds existed for believing that he lacked the ability to understand the
proceedings and assist in the preparation of a defense.
[21] When the trial court explained the trial procedure to Franze and that the
attorneys would be presenting opening arguments, the jury would be instructed,
evidence would be presented, and the jury would decide the case, Franze said
that he understood that general procedure because he had “done this . . .
before.” Id. at 39. Although Franze stated that he was not sure if he was
“doing it right,” he advised the trial court that he was able to “participate with
[his] attorney.” Id. at 40. As the trial court pointed out, the standard is not
whether Franze had a perfect understanding. Id. at 39. The record showed that
Franze was able to understand the proceedings in general.
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[22] Based on the record before us, there was ample support for the trial court’s
determination that there were no reasonable grounds to believe that Franze
lacked the ability to understand the proceedings and to assist in the preparation
of his defense. We conclude that the trial court did not abuse its discretion by
denying Franze’s motion for a competency evaluation.
II. Motion to Withdraw and Motion to Continue
[23] Franze argues that the trial court abused its discretion when it denied his trial
counsel’s motion to withdraw his appearance and a motion to continue.
Whether to allow counsel to withdraw is within the trial court’s discretion, and
we will reverse only when denial constitutes a clear abuse of discretion and
prejudices the defendant's right to a fair trial. Bronough v. State, 942 N.E.2d 826,
829 (Ind. Ct. App. 2011), trans. denied. The decision whether to grant a
continuance when the motion is not based on statutory grounds is within the
discretion of the trial court. Jones v. State, 957 N.E.2d 1033, 1042 (Ind. Ct. App.
2011). We will not reverse such a decision absent a clear showing that the trial
court has abused its discretion, and the appellant must overcome a strong
presumption that the trial court exercised its discretion properly. Id. Further,
the defendant must establish that he was prejudiced because of the trial court’s
denial of his motion. Id.[24] Franze asserts that the trial court abused its discretion when it denied his trial
counsel’s motion to withdraw his appearance. Franze contends that the
evidence presented showed a breakdown in the attorney-client relationship
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between him and his trial counsel that showed that neither of them was
prepared for the jury trial. He, therefore, contends that the trial court should
have granted the continuance and motion to withdraw or in the alternative
granted the motion to continue to ensure that Franze had legal counsel who
was adequately prepared to represent him at trial.
[25] Initially, Franze has waived appellate review regarding trial counsel’s motion to
withdraw his appearance because he has failed to raise a cogent argument. The
only case he relies upon in his argument is Parr v. State, 504 N.E.2d 1014 (Ind.
1987). Parr did not involve the denial of an attorney’s motion to withdraw an
appearance and, instead, involved the denial of a motion to continue filed by a
defendant who wished to obtain private counsel. Id. at 1016. Therefore,
Franze has failed to advance a cogent argument with citations to the legal
standard for reviewing denials of motions to withdraw an appearance. See Ind.
Appellate Rule 46(A)(8)(a); see also Mallory v. State, 954 N.E.2d 933, 936 (Ind.
Ct. App. 2011) (“A party waives an issue where the party fails to develop a
cogent argument or provide adequate citation to authority and portions of the
record.”).
[26] Waiver notwithstanding, Franze has not shown that he was prejudiced by the
denial of his attorney’s motion to withdraw his appearance. “[A] defendant
must demonstrate that he was prejudiced before we may reverse because the
trial court denied counsel’s motion to withdraw.” Bronough, 942 N.E.2d at 830.
Here, Franze asserts only that neither trial counsel nor Franze “believed that
[trial counsel] was prepared to try the case.” Appellant’s Br. at 13. Franze does
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not contend, or provide any citations to the record to demonstrate, that trial
counsel was actually unprepared to try the case at trial. We, therefore,
conclude that he has not shown that he was prejudiced by the denial of the
motion to withdraw appearance and trial counsel’s continued representation of
him.
[27] As to his argument regarding the motion to continue, Franze seems to assume
that trial counsel’s request to continue the case related to his motion to
withdraw. However, the record does not support this assumption. In support
of his contention that the trial court abused its discretion, Franze cites to page
32 of the transcript. Appellant’s Br. at 12. The motion to continue referenced on
that page came after Franze had failed to appear on the morning of the trial,
and the trial court inquired as to whether trial counsel would like to move for a
continuance due to Franze’s absence. Tr. at 32. However, when Franze was
located, the jury trial went forward, and the issue of whether a continuance
should be granted due to Franze’s absence became moot. Therefore, the trial
court did not abuse its discretion by not granting a motion to continue the trial
after Franze had appeared for trial and the basis for the continuance no longer
existed and when the motion was not renewed on any other basis. We
conclude that the trial court did not abuse its discretion when it denied trial
counsel’s motion to withdraw his appearance or his motion to continue.
III. Ineffective Assistance of Counsel
[28] “The Sixth Amendment to the United States Constitution guarantees criminal
defendants the right to counsel and mandates that the right to counsel is the
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right to the effective assistance of counsel.” Bobadilla v. State, 117 N.E.3d 1272,
1279 (Ind. 2019). “We evaluate Sixth Amendment claims of ineffective
assistance under the two-part test announced in Strickland.” Rondeau v. State, 48
N.E.3d 907, 916 (Ind. Ct. App. 2016) (citing Strickland v. Washington, 466 U.S.
668, 698 (1984)), trans. denied. To prevail on a claim of ineffective assistance of
counsel, a petitioner must demonstrate that (1) counsel’s representation fell
short of prevailing professional norms, and (2) counsel’s deficient performance
prejudiced the defendant such that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Strickland, 466 U.S. at 687-88, 698. “‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” Rondeau, 48
N.E.3d at 916 (quoting Strickland, 466 U.S. at 698). “The two prongs of the
Strickland test are separate and independent inquiries.” Id. (citing Strickland, 466
U.S. at 697). “Thus, ‘[i]f it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice . . . that course should be followed.’” Id.(quoting Strickland, 466 U.S. at 697).
[29] Further, counsel’s performance is presumed effective, and a defendant must
offer strong and convincing evidence to overcome this presumption.
McCullough v. State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012), trans. denied. We
will not lightly speculate as to what may or may not have been an advantageous
trial strategy, as counsel should be given deference in choosing a trial strategy
that, at the time and under the circumstances, seems best. Perry v. State, 904
N.E.2d 302, 308 (Ind. Ct. App. 2009) (citing Whitener v. State, 696 N.E.2d 40,
Court of Appeals of Indiana | Memorandum Decision 20A-CR-523 | October 29, 2020 Page 19 of 22
42 (Ind. 1998)), trans. denied. Isolated omissions or errors, poor strategy, or bad
tactics do not necessarily render representation ineffective. McCullough, 973
N.E.2d at 74.
[30] Franze argues that he received ineffective assistance of his trial counsel. He
alleges that his trial counsel was ineffective because he was not prepared to
adequately defend Franze at trial, had advised the trial court that he believed
that Franze wanted trial counsel to suborn perjury, and had stated to the trial
court that Franze was devolved, paranoid, and delusional. Franze asserts that
the most glaring deficiency was that trial counsel’s statement to the trial court
that Franze wanted counsel to call witnesses and suborn perjury. Franze thus
contends that “there is no way that the sentence imposed could be reliable”
because the trial court could not have “possibly give[n] the same weight to the
evidence presented by Franze at the sentencing hearing when [it] had
previously been informed by Franze’s counsel that Franze wished for counsel to
suborn perjury.” Appellant’s Br. at 15. Franze argues that his convictions
should be therefore reversed.
[31] As to Franze’s contentions that his trial counsel was ineffective for not being
prepared to adequately defend Franze at the trial and making the statement to
the trial court that Franze was devolved, paranoid, and delusional, he has failed
to develop these claims with any argument supported by cogent reasoning and
citation to authorities pursuant to Indiana Appellate Rule 46(A)(8)(a). As such,
Franze has waived this argument for appellate consideration. See Davis v. State,
835 N E.2d 1102, 1113 (Ind. Ct. App. 2005) (providing that failure to make a
Court of Appeals of Indiana | Memorandum Decision 20A-CR-523 | October 29, 2020 Page 20 of 22
cogent argument results in waiver), trans. denied; see also App. R. 46(A)(8)(a)
(requiring that contentions in appellant's brief be supported by cogent reasoning
and citations to authorities, statutes, and the appendix or parts of the record on
appeal).
[32] “The two prongs of the Strickland test are separate and independent inquiries.”
Rondeau, 48 N.E.3d at 916. “Thus, ‘[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
course should be followed.’” Id. (quoting Strickland, 466 U.S. at 697). As to his
contention that his trial counsel was ineffective for advising the trial court that
he believed that Franze wanted trial counsel to suborn perjury, Franze argues
that “there is no way that the sentence imposed could be reliable,” see
Appellant’s Br. at 15, which is not the standard for determining whether his
convictions should be set aside and a new trial ordered. See Strickland, 466 U.S.
at 698. The relief Franze requests in his appeal is the reversal of his
convictions, not remand for a new sentencing hearing. See Appellant’s Br. at 15.
Franze has not shown how his claim of prejudice at sentencing is connected to
his requested relief of reversal of his convictions. His claim of prejudice on this
contention is therefore waived for failure to make a cogent argument. App. R.
46(A)(8)(a).
[33] However, even if Franze had argued that there was a reasonable probability
that the outcome of his trial would have been different had his trial counsel not
advised the trial court that he believed that Franze wanted him to suborn
perjury, the record does not support such a claim because Franze was convicted
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after a jury trial. Trial counsel made the challenged statement to the trial court
at the final pretrial hearing held on July 9, 2019. Tr. at 2, 13. The jury was not
sworn in for trial until July 22, 2020. Id. at 21, 23. Therefore, Franze has not
shown a reasonable probability of a different outcome at trial -- that the jury
would not have convicted him -- but for the fact that trial counsel told the trial
court he believed that Franze wanted him to suborn perjury. As Franze cannot
show that the result of the trial would have been different or that he suffered
any prejudice, he has not shown that he received ineffective assistance of trial
counsel.
[34] Affirmed.
Pyle, J., and Tavitas, J., concur.
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