Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: Mar 28 2013, 9:16 am
HILARY BOWE RICKS Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
DAYMON HOLBERT, ) ) Appellant-Defendant, ) ) vs. ) No. 49A05-1209-PC-455 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Steven J. Rubick, Magistrate The Honorable Kurt M. Eisgruber, Judge Cause No. 49G01-0601-PC-10054
March 28, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge Case Summary and Issues
Daymon Holbert appeals the post-conviction court’s denial of his petition for post-
conviction relief. Holbert raises two issues on appeal: 1) whether he was denied the
effective assistance of his trial counsel; and 2) whether he was denied the effective
assistance of his appellate counsel. Concluding that Holbert was not denied the effective
assistance of trial or appellate counsel, we affirm.
Facts and Procedural History
In 2006, Holbert was charged with two counts of murder and one of robbery. One
of the murder charges was eventually dropped. In 2007, Holbert and a co-defendant,
Jacques Johnson, were tried to a jury in a joint trial. Holbert was found guilty on both the
murder and robbery charges.1 Holbert was sentenced to sixty years on the murder count
and twenty years on the robbery count, to be served concurrently. Holbert filed a direct
appeal challenging the admission of a portion of testimony, and we affirmed his
conviction. Holbert v. State, 900 N.E.2d 85 (Ind. Ct. App. 2008), trans. denied. In 2009,
Holbert filed a pro se petition for post-conviction relief, which was amended in 2010. A
hearing on the petition was held in November 2011.2 In August 2012, the court issued
findings of facts and conclusions of law and denied Holbert’s petition. This appeal
followed.
1 Johnson was also found guilty of the counts charged against him. 2 Holbert’s brief states that both the original and amended petitions were filed pro se, although we note that Holbert was represented at the hearing by the same counsel who filed his brief in this appeal. 2 Discussion and Decision
I. Standard of Review
To prevail on appeal from the denial of post-conviction relief, the petitioner must
show that the evidence is without conflict and leads unerringly and unmistakably to a
conclusion opposite that reached by the post-conviction court. Thacker v. State, 715
N.E.2d 1281, 1284 (Ind. Ct. App. 1999), trans. denied. A post-conviction court’s
findings and judgment will be reversed only upon a showing of clear error, which is error
that leaves us with a definite and firm conviction that a mistake has been made.
Benefield v. State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011). We accept the post-
conviction court’s findings of fact unless they are clearly erroneous, but we do not defer
to the post-conviction court’s conclusions of law. Id. We examine only the probative
evidence and reasonable inferences that support the post-conviction court’s determination
and we do not reweigh the evidence or judge the credibility of the witnesses. Conner v.
State, 711 N.E.2d 1238, 1245 (Ind. 1999), cert. denied, 531 U.S. 829 (2000).
We review claims of ineffective assistance of counsel under the two prong test set
forth in Strickland v. Washington, 466 U.S. 668 (1984). Bieghler v. State, 690 N.E.2d
188, 192 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998). The same standard applies to
claims of ineffective assistance of trial or appellate counsel. Id. To prevail on a claim of
ineffective assistance of counsel, the petitioner must show that his counsel’s performance
was deficient and that the lack of reasonable representation prejudiced him. Randolph v.
State, 802 N.E.2d 1008, 1013 (Ind. Ct. App. 2004), trans. denied. To satisfy the first
prong, the petitioner must show that counsel’s performance was deficient in that
counsel’s representation fell below an objective standard of reasonableness and that 3 counsel committed errors so serious that petitioner did not have the “counsel” guaranteed
by the Sixth Amendment. Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). To show
prejudice, the petitioner must show a reasonable probability that, but for counsel’s errors,
the result of the proceeding would have been different. Id. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Pruitt v. State, 903
N.E.2d 899, 906 (Ind. 2009).
Under this standard, judicial scrutiny of counsel’s performance must be highly
deferential, and there is a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. Bieghler, 690 N.E.2d at 192 (citing
Strickland, 466 U.S. at 698). Counsel is afforded considerable discretion in choosing
strategy and tactics and we will accord that decision deference. Randolph, 802 N.E.2d at
1013. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do
not necessarily render representation ineffective. Id. Additionally, ineffective assistance
is very rarely found in cases where a defendant asserts that appellate counsel failed to
raise an issue on direct appeal. Reed, 856 N.E.2d at 1196. One reason for this is that the
decision of what issues to raise is one of the most important strategic decisions to be
made by appellate counsel. Id.
Finally, we note that the two prongs of the Strickland test are separate and
independent inquiries. Therefore, if it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, we may determine the prejudice prong first
without inquiring into whether counsel’s performance was adequate. Thacker, 715
N.E.2d at 1284.
4 II. Trial Counsel
We note at the outset that the State has failed to file an appellee’s brief in this
appeal. When, as here, the appellee does not file a brief, we apply a less stringent
standard of review and will reverse the trial court if the appellant establishes prima facie
error. State v. C.D., 947 N.E.2d 1018, 1021 (Ind. Ct. App. 2011). “Prima facie” is
defined as “at first sight, on first appearance, or on the face of it.” Id. This rule is not
intended to benefit the appellant, but rather to relieve us of the burden of developing
arguments on behalf of the appellee. Id. The burden of demonstrating trial court error
remains with the appellant. Id.
Holbert first argues that he was denied the effective assistance of his trial counsel
because he was not informed of a plea agreement that was offered by the State. At the
post-conviction relief hearing, testimony from Holbert’s trial attorneys as well as Holbert
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: Mar 28 2013, 9:16 am
HILARY BOWE RICKS Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
DAYMON HOLBERT, ) ) Appellant-Defendant, ) ) vs. ) No. 49A05-1209-PC-455 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Steven J. Rubick, Magistrate The Honorable Kurt M. Eisgruber, Judge Cause No. 49G01-0601-PC-10054
March 28, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge Case Summary and Issues
Daymon Holbert appeals the post-conviction court’s denial of his petition for post-
conviction relief. Holbert raises two issues on appeal: 1) whether he was denied the
effective assistance of his trial counsel; and 2) whether he was denied the effective
assistance of his appellate counsel. Concluding that Holbert was not denied the effective
assistance of trial or appellate counsel, we affirm.
Facts and Procedural History
In 2006, Holbert was charged with two counts of murder and one of robbery. One
of the murder charges was eventually dropped. In 2007, Holbert and a co-defendant,
Jacques Johnson, were tried to a jury in a joint trial. Holbert was found guilty on both the
murder and robbery charges.1 Holbert was sentenced to sixty years on the murder count
and twenty years on the robbery count, to be served concurrently. Holbert filed a direct
appeal challenging the admission of a portion of testimony, and we affirmed his
conviction. Holbert v. State, 900 N.E.2d 85 (Ind. Ct. App. 2008), trans. denied. In 2009,
Holbert filed a pro se petition for post-conviction relief, which was amended in 2010. A
hearing on the petition was held in November 2011.2 In August 2012, the court issued
findings of facts and conclusions of law and denied Holbert’s petition. This appeal
followed.
1 Johnson was also found guilty of the counts charged against him. 2 Holbert’s brief states that both the original and amended petitions were filed pro se, although we note that Holbert was represented at the hearing by the same counsel who filed his brief in this appeal. 2 Discussion and Decision
I. Standard of Review
To prevail on appeal from the denial of post-conviction relief, the petitioner must
show that the evidence is without conflict and leads unerringly and unmistakably to a
conclusion opposite that reached by the post-conviction court. Thacker v. State, 715
N.E.2d 1281, 1284 (Ind. Ct. App. 1999), trans. denied. A post-conviction court’s
findings and judgment will be reversed only upon a showing of clear error, which is error
that leaves us with a definite and firm conviction that a mistake has been made.
Benefield v. State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011). We accept the post-
conviction court’s findings of fact unless they are clearly erroneous, but we do not defer
to the post-conviction court’s conclusions of law. Id. We examine only the probative
evidence and reasonable inferences that support the post-conviction court’s determination
and we do not reweigh the evidence or judge the credibility of the witnesses. Conner v.
State, 711 N.E.2d 1238, 1245 (Ind. 1999), cert. denied, 531 U.S. 829 (2000).
We review claims of ineffective assistance of counsel under the two prong test set
forth in Strickland v. Washington, 466 U.S. 668 (1984). Bieghler v. State, 690 N.E.2d
188, 192 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998). The same standard applies to
claims of ineffective assistance of trial or appellate counsel. Id. To prevail on a claim of
ineffective assistance of counsel, the petitioner must show that his counsel’s performance
was deficient and that the lack of reasonable representation prejudiced him. Randolph v.
State, 802 N.E.2d 1008, 1013 (Ind. Ct. App. 2004), trans. denied. To satisfy the first
prong, the petitioner must show that counsel’s performance was deficient in that
counsel’s representation fell below an objective standard of reasonableness and that 3 counsel committed errors so serious that petitioner did not have the “counsel” guaranteed
by the Sixth Amendment. Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). To show
prejudice, the petitioner must show a reasonable probability that, but for counsel’s errors,
the result of the proceeding would have been different. Id. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Pruitt v. State, 903
N.E.2d 899, 906 (Ind. 2009).
Under this standard, judicial scrutiny of counsel’s performance must be highly
deferential, and there is a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. Bieghler, 690 N.E.2d at 192 (citing
Strickland, 466 U.S. at 698). Counsel is afforded considerable discretion in choosing
strategy and tactics and we will accord that decision deference. Randolph, 802 N.E.2d at
1013. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do
not necessarily render representation ineffective. Id. Additionally, ineffective assistance
is very rarely found in cases where a defendant asserts that appellate counsel failed to
raise an issue on direct appeal. Reed, 856 N.E.2d at 1196. One reason for this is that the
decision of what issues to raise is one of the most important strategic decisions to be
made by appellate counsel. Id.
Finally, we note that the two prongs of the Strickland test are separate and
independent inquiries. Therefore, if it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, we may determine the prejudice prong first
without inquiring into whether counsel’s performance was adequate. Thacker, 715
N.E.2d at 1284.
4 II. Trial Counsel
We note at the outset that the State has failed to file an appellee’s brief in this
appeal. When, as here, the appellee does not file a brief, we apply a less stringent
standard of review and will reverse the trial court if the appellant establishes prima facie
error. State v. C.D., 947 N.E.2d 1018, 1021 (Ind. Ct. App. 2011). “Prima facie” is
defined as “at first sight, on first appearance, or on the face of it.” Id. This rule is not
intended to benefit the appellant, but rather to relieve us of the burden of developing
arguments on behalf of the appellee. Id. The burden of demonstrating trial court error
remains with the appellant. Id.
Holbert first argues that he was denied the effective assistance of his trial counsel
because he was not informed of a plea agreement that was offered by the State. At the
post-conviction relief hearing, testimony from Holbert’s trial attorneys as well as Holbert
himself indicated that there was a plea agreement offered at some point, but the testimony
was inconsistent as to the terms and timing, and there was no written evidence of a plea
offer.3 Holbert contests the lower court’s finding that there is no positive evidence that a
firm offer was actually made. While we might lean more toward the conclusion that
some offer was made, as all parties remember some version of an offer, it is true that
there was no concrete evidence or consistent testimony. Further, without physical
evidence of an offer, whether there was an offer or what its terms were comes down to
weighing the credibility of witnesses, and we do not reweigh that evidence on appeal.
More importantly, regardless of where we would come down on the issue of the existence
3 Holbert testified that, after he was sentenced, he was asked by a relative why he had not taken the plea offer, and that was when he first learned that there had been an offer. 5 of a plea offer, we agree with the post-conviction court that there is no evidence that
Holbert would have taken the plea, assuming one was offered and communicated to him.
Because he can show no prejudice in any failure of counsel to apprise him of a plea offer,
we agree that he has failed to carry his burden regarding ineffective assistance of counsel.
On that point, Holbert argues that it was further ineffectiveness that leads him to
be unsure of whether he would have taken the plea if communicated to him. He argues
that his counsel did not communicate to him the status of his case or the evidence against
him, and because of that failure, he would have been unable to weigh his options and
decide whether to take the plea offer. However, this argument was not developed below
and the record does not indicate how often his counsel communicated with him or how
much they told him about his case. Further, Holbert does not detail which parts of the
case or evidence against him his counsel failed to communicate to him, or what
information would have influenced his decision to take a plea. He does not outline what
it is his attorneys were supposed to have discussed with him at the time, but did not, that
would allow him to say whether he would have taken the plea. He has failed to meet the
prongs of Strickland.
III. Appellate Counsel
Holbert next argues that his appellate counsel was ineffective in failing to raise
insufficiency of the evidence for both his robbery and murder convictions in the direct
appeal. Holbert first contends that counsel should have appealed the sufficiency of the
evidence surrounding his robbery conviction, and notes that co-defendant Johnson’s
robbery conviction was reversed on appeal. See Johnson v. State, 893 N.E.2d 779 (Ind.
Ct. App. 2008), trans. denied. Holbert takes issue with the post-conviction court’s 6 conclusion that Holbert and Johnson were differently situated such that our decision as to
Johnson does not necessarily indicate that we would have decided the same way relative
to Holbert had he appealed the same issue. This conclusion seems aimed more at the
prejudice prong of the Strickland test.4
Without disagreeing with the post-conviction court, we note that even if it could
be said with certainty at this point that we would have also reversed Holbert’s robbery
conviction had the sufficiency of the evidence supporting it been appealed, that does not
mean that Holbert would meet the deficiency prong of Strickland. In fact, the record
indicates that Holbert has not met his burden with regard to that first prong. Holbert
notes that at the post-conviction relief hearing, his appellate attorney admitted to knowing
the outcome of Johnson’s appeal. Whether intentionally or not, Holbert appears to
confuse the timeline. His appellate attorney may well know the outcome of Johnson’s
appeal now, but Johnson’s appeal was not handed down until well after Holbert’s direct
appeal was filed. Holbert’s appellate counsel did not have the benefit of the results of
Johnson’s appeal before he filed and briefed Holbert’s direct appeal. Moreover, he
testified at the hearing that he considered sufficiency of the evidence for both charges as
he was deciding what to appeal, but he did not feel that either challenge had merit. While
he may feel differently now in hindsight, that is not the standard by which we judge
counsel’s performance. The decision of what issues to raise on appeal is a strategy
decision that is left to counsel, and if counsel here considered the possible avenues and
4 Relevant to that prong, we also note that Holbert admits that reversal of his robbery charge alone would have been of no benefit to him, because his murder sentence was longer and they were to be served concurrently.
7 chose the one that he felt was most meritorious and most likely to aid his client, we
cannot say that indicates deficient performance.
Holbert also argues that appellate counsel should have raised as an issue on direct
appeal the sufficiency of the evidence supporting his murder conviction. Although
Holbert’s brief is difficult to parse, he implies that the admission of testimony which was
appealed is also relevant to his murder charge, but that in his direct appeal we only
considered it relative to his robbery charge. In his direct appeal, he challenged the
admission of a statement by a witness. We concluded that the statement was
inadmissible hearsay but that the error was harmless because there was sufficient other
evidence to support his conviction. Holbert, 900 N.E.2d 85 at *4. He claims here that
that same hearsay was the only evidence supporting his murder charge. We do not read
our opinion in Holbert’s direct appeal to be limited to the robbery charge. We mention
both murder and robbery in our discussion, and the issue presented was whether the trial
court abused its discretion in admitting the statement. Once we decided that the
statement was admitted in error, had we concluded that it was the only evidence
supporting Holbert’s murder conviction, we would not have considered the error
harmless. To the extent that Holbert is attempting to re-argue his direct appeal or
supplement that argument, it is inappropriate to do so here at the post-conviction relief
stage. The issue of the hearsay statement was available on direct appeal, and indeed was
the basis for that appeal— it does not appear from either our opinion or a cursory
inspection of Holbert’s brief on direct appeal that the issue was limited to the robbery
conviction. Holbert has not convinced us that he would have prevailed had the
sufficiency of the evidence surrounding his murder charge been directly challenged, and 8 has certainly not convinced us that his appellate counsel’s performance was deficient in
the issues that counsel chose to advance on direct appeal. We are not left with a firm
conviction that a mistake has been made by the post-conviction court.
Conclusion
Concluding that Holbert was not denied the effective assistance of either trial or
appellate counsel, we affirm the post-conviction court’s denial of his petition for post-
conviction relief.
Affirmed.
MAY, J., and PYLE, J., concur.