James Crawford v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 26, 2018
• Docket: 32A01-1710-PC-2487
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 26 2018, 7:36 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew J. McGovern Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana

Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

James Crawford, June 26, 2018 Appellant-Petitioner, Court of Appeals Case No. 32A01-1710-PC-2487 v. Appeal from the Hendricks Superior Court State of Indiana, The Honorable Robert W. Freese, Appellee-Respondent Judge Trial Court Cause No. 32D01-1501-PC-2

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 32A01-1710-PC-2487 | June 26, 2018 Page 1 of 9 Case Summary [1] James Crawford appeals the denial of his petition for post-conviction relief. He

contends that the post-conviction court clearly erred in determining that he

failed to demonstrate that he received the ineffective assistance of trial counsel.

Concluding that Crawford has not met his burden to prove that he received

ineffective assistance, we affirm.

Facts and Procedural History [2] On January 23, 2006, Crawford and his brother (collectively “the Brothers”)

were each charged with six counts of class B felony robbery (six different

victims), seven counts of class D felony theft, and six counts of class D felony

criminal recklessness, for a total of nineteen counts. The Brothers originally

hired attorney John Moss to represent them, but after he repeatedly failed to

appear for hearings, the Brothers hired attorney Joseph Thoms to represent

them.

[3] Prior to trial, attorney Thoms negotiated a plea deal with the deputy prosecutor

which would have resulted in a fourteen-year prison sentence for each of the

Brothers. Despite the strong recommendation from their attorney that they

should accept the deal, the Brothers rejected the plea agreement. The Brothers

waived the right to a jury trial, both orally and in writing, and the case

proceeded to a bench trial on August 31, 2007.

[4] During trial, the State called eight witnesses which included the six alleged

armed robbery victims, the owner of the handgun used to facilitate the

Court of Appeals of Indiana | Memorandum Decision 32A01-1710-PC-2487 | June 26, 2018 Page 2 of 9 robberies, and the police detective assigned to the case. Robbery victim

Samantha Stevenson testified that one of the Brothers pointed a gun and

ordered the six victims to get on the floor on their stomachs. She was five

months pregnant at the time, so it was difficult for her to stay on her stomach,

but one of the Brothers kept yelling at her and nudged her with his foot. One of

the Brothers took her engagement and wedding rings off her finger. One of the

Brothers kicked her hand. The Brothers repeatedly threatened to kill the six

victims. Several of the victims testified that Crawford and his brother passed

the gun back and forth during the robbery and that Crawford pointed the gun

right at their heads.

[5] At the trial’s conclusion, the court found the Brothers guilty of six counts of

class B felony robbery and six counts of class D felony theft. The trial court

found the Brothers not guilty of one count of class D felony theft and not guilty

of the six counts of class D felony criminal recklessness. The court sentenced

Crawford to the advisory sentence of ten years on each robbery count, to be

served consecutively, and six months for each theft count, to be served

concurrently with each other and with the sentences on the robbery counts, for

an aggregate sentence of sixty years’ imprisonment.

[6] No direct appeal was ever filed, but on January 21, 2015, the Brothers filed

separate petitions for post-conviction relief alleging, among other things, that

they received ineffective assistance of trial counsel. An evidentiary hearing was

held on September 18, 2015. The Brothers called attorney Thoms to testify.

Attorney Thoms stated that he met with the Brothers on multiple occasions

Court of Appeals of Indiana | Memorandum Decision 32A01-1710-PC-2487 | June 26, 2018 Page 3 of 9 prior to trial. He testified that he specifically advised the Brothers that they

faced “upwards of 120 years” because the maximum sentence for a class B

felony was twenty years and then it would be “times 6.” PCR Tr. Vol. 2 at 7.

Attorney Thoms testified that, against his clear advice, the Brothers rejected the

plea offer that he had negotiated with the State. Attorney Thoms further

testified that, due to the overwhelming evidence against the Brothers, he

believed the best defense strategy was to challenge the State’s case through

vigorous cross-examination of the witnesses, and to move for a directed verdict

at the conclusion of the State’s case, which he did. The Brothers also testified at

the hearing.

[7] On September 27, 2017, the post-conviction court entered its findings of fact,

conclusions thereon, and order denying Crawford’s petition for relief. This

appeal ensued.

Discussion and Decision [8] The petitioner in a post-conviction proceeding has the burden of establishing

grounds for relief by a preponderance of the evidence. Ellis v. State, 67 N.E.3d

643, 646 (Ind. 2017). When appealing the denial of a petition for post-

conviction relief, the petitioner stands in the position of one appealing from a

negative judgment. Id. To prevail on appeal, a petitioner must show that the

evidence as a whole leads unerringly and unmistakably to a conclusion opposite

that reached by the post-conviction court. Id. Where, as here, the post-

conviction court makes findings of fact and conclusions of law as required by

Indiana Post-Conviction Rule 1(6), we will reverse its findings only upon a Court of Appeals of Indiana | Memorandum Decision 32A01-1710-PC-2487 | June 26, 2018 Page 4 of 9 finding of clear error, namely “that which leaves us with a definite and firm

conviction that a mistake has been made.” Id. (citation omitted). We will not

reweigh the evidence or judge the credibility of witnesses, and will consider

only the probative evidence and reasonable inferences flowing therefrom that

support the post-conviction court’s decision. Hinesley v. State, 999 N.E.2d 975,

981 (Ind. Ct. App. 2013), trans. denied (2014).

[9] When evaluating an ineffective assistance of counsel claim, we apply the two-

part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Humphrey

v. State, 73 N.E.3d 677, 682 (Ind. 2017). “To satisfy the first prong, ‘the

defendant must show deficient performance: representation that fell below an

objective standard of reasonableness, committing errors so serious that the

defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.’” Id.

(quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the

second prong, the defendant must show prejudice. Id. To demonstrate

prejudice from counsel’s deficient performance, a petitioner need only show “a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Middleton v. State, 72 N.E.3d 891,

891-92 (Ind. 2017) (emphasis and citation omitted). “A reasonable probability is

a probability sufficient to undermine confidence in the outcome.” Id.

[10] Isolated poor strategy, inexperience, or bad tactics does not necessarily

constitute ineffective assistance. Hinesley, 999 N.E.2d at 982. When

considering a claim of ineffective assistance of counsel, we strongly presume

“that counsel rendered adequate assistance and made all significant decisions in

Court of Appeals of Indiana | Memorandum Decision 32A01-1710-PC-2487 | June 26, 2018 Page 5 of 9 the exercise of reasonable professional judgment.” Id. (citation omitted). We

presume that counsel performed effectively, and a defendant must offer strong

and convincing evidence to overcome this presumption. Id.

[11] We must acknowledge that the judge who presided over Crawford’s bench trial

is also the judge who presided over the post-conviction proceedings, and

therefore the post-conviction court’s findings and judgment are entitled to

“greater than usual deference.” Id. (quoting McCullough v. State, 973 N.E.2d 62,

75 (Ind. Ct. App. 2012), trans. denied (2013)). Indeed, we have explained that,

in such a case, the judge is uniquely situated to assess whether trial counsel’s

performance fell below an objective standard of reasonableness and whether,

but for counsel’s unprofessional conduct, there was a reasonable probability

that a different verdict would have been reached. Id.

[12] Crawford first argues that trial counsel was ineffective for failing to correctly

advise him of the potential sentence he faced and failing to ensure that he

“knowingly and intelligently rejected the plea agreement offered by the

prosecution.” Appellant’s Br. at 16. However, this issue was not raised in

Crawford’s petition for post-conviction relief and was therefore properly

determined by the post-conviction court to be waived. Accordingly, the issue is

not available for appellate review.1 See Pruitt v. State, 903 N.E.2d 899, 906 (Ind.

1 Waiver notwithstanding, attorney Thoms testified unequivocally that he advised Crawford of the potential lengthy sentence that he faced and further advised Crawford to accept the plea agreement. We are unpersuaded that the trial court’s misstatement regarding the maximum possible sentence that occurred at the beginning of the bench trial and after Crawford had already rejected the plea agreement in writing had any

Court of Appeals of Indiana | Memorandum Decision 32A01-1710-PC-2487 | June 26, 2018 Page 6 of 9 2009) (“Issues not raised in the petition for post-conviction relief may not be

raised for the first time on post-conviction appeal.”) (quoting Allen v. State, 749

N.E.2d 1158, 1171 (Ind. 2001)).

[13] Crawford also questions the adequacy of counsel’s trial preparation and chosen

defense strategy, asserting that counsel was ineffective in failing to proffer a

“fake robbery” defense and argue that the Brothers arranged the whole incident

with one of the alleged victims. Appellant’s Br. at 25. Specifically, Crawford

claims that attorney Thoms failed to obtain his former attorney’s files (including

depositions) or spend sufficient time with the Brothers to prepare the “fake

robbery” defense. The post-conviction court found:

38. Regarding the depositions, attorney Thoms stated that he was unsuccessful in attempting to get attorney Moss to turn over his files or the depositions. Attorney Moss had a history of failing to appear in court. Attorney Thoms admitted that he did not attempt to obtain a copy from the Court’s file. Nevertheless, Petitioners have failed to demonstrate how knowledge of the contents of the depositions would have resulted in an acquittal. The evidence in this case was very strong. All six armed robbery victims testified that [the Brothers] robbed them. Minor inconsistencies in their testimony did not refute or lessen the overwhelming conclusion that the Brothers robbed them at gunpoint. At the PCR hearing, both Brothers admitted to committing the armed robbery.

effect on his decision to reject the agreement. Crawford has shown neither that counsel performed deficiently nor that such performance prejudiced him.

Court of Appeals of Indiana | Memorandum Decision 32A01-1710-PC-2487 | June 26, 2018 Page 7 of 9 39. The “pretend robbery” defense claimed by [Crawford] had obvious limitations and drawbacks starting with the fact that the alleged agreement to fake a robbery would have only applied to one person and not to the other five people who were robbe[d] at gunpoint. Furthermore, at the PCR hearing, [Crawford] admitted that it turned into a real robbery. His brother never thought it to be anything else. The Brothers had no real defense to their crimes. Nevertheless, attorney Thoms assisted them in the exercise of their constitutional right to make the state prove its case beyond a reasonable doubt. This court will not second- guess matters of strategy by trial counsel.

40. Attorney Thoms subjected the State’s case to adversarial testing and his performance did not fall below an objective standard of reasonableness based upon prevailing professional norms. Petitioners have failed to prove ineffective assistance of counsel.

Appealed Order at 7-8.

[14] As found by the post-conviction court, Crawford has failed to present strong

and convincing evidence to overcome the presumption that counsel was

adequately prepared for trial or that it is reasonably probable that additional

preparation (such as obtaining the depositions) would have resulted in a

different verdict. Attorney Thoms testified that he met with the Brothers on

multiple occasions, conducted discovery, and was adequately prepared for trial.

He believed that the evidence against the Brothers was overwhelming and that

the best defense strategy was to challenge the State’s case through vigorous

cross-examination of the witnesses. It is well settled that choice of defense

theory is a matter of trial strategy, and trial strategy “is not subject to attack

Court of Appeals of Indiana | Memorandum Decision 32A01-1710-PC-2487 | June 26, 2018 Page 8 of 9 through an ineffective assistance of counsel claim, unless the strategy is so

deficient or unreasonable as to fall outside of the objective standard of

reasonableness.” Benefield v. State, 945 N.E.2d 791, 799 (Ind. Ct. App. 2011).

The post-conviction court concluded that attorney Thoms’s performance did

not fall below an objective standard of reasonableness in this regard, and

Crawford has not shown that the evidence as a whole leads unerringly and

unmistakably to an opposite conclusion. Accordingly, we affirm the denial of

his petition for relief.

[15] Affirmed.

Bailey, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 32A01-1710-PC-2487 | June 26, 2018 Page 9 of 9