Kerry E Silvers v. State of Indiana

Opinion

FILED Apr 02 2025, 8:45 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana Kerry Silvers, Appellant-Petitioner

v.

State of Indiana, Appellee-Respondent

April 2, 2025 Court of Appeals Case No. 24A-PC-277 Appeal from the Lawrence Superior Court The Honorable Robert R. Cline, Judge Trial Court Cause No. 47D02-1909-PC-001834

Opinion on Rehearing by Judge Felix Judges Pyle and Weissmann concur.

Court of Appeals of Indiana | Opinion on Rehearing 24A-PC-277 | April 2, 2025 Page 1 of 3 Felix, Judge.

[1] The State has filed a petition for rehearing from our opinion in which we

affirmed the denial of Kerry Silvers’s petition for post-conviction relief. See

Silvers v. State, 250 N.E.3d 511 (Ind. Ct. App. 2025). In its petition, the State

contends that we applied the incorrect standard in assessing any prejudice that

may have resulted from Silvers’s trial counsel’s allegedly deficient performance.

In response, Silvers agrees with the State’s contention and also challenges

several of our conclusions regarding the merits of his ineffective assistance of

counsel claims.

[2] We agree that we misstated Strickland’s prejudice standard. “[T]o 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 (Ind. 2017) (emphasis in original) (quoting Strickland v. Washington, 466

U.S. 668, 694 (1984)). “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. at 891–92 (quoting Strickland, 466

U.S. at 694) (citing Campbell v. State, 19 N.E.3d 271, 274 (Ind. 2014); Wilkes v.

State, 984 N.E.2d 1236, 1241 (Ind. 2013)). In our original opinion in this case,

we omitted the “reasonable probability” language from our recitation of

Strickland’s prejudice standard. See Silvers, 250 N.E.3d at 521–22 (quoting

Bobadilla v. State, 117 N.E.3d 1272, 1280 (Ind. 2019)).

Court of Appeals of Indiana | Opinion on Rehearing 24A-PC-277 | April 2, 2025 Page 2 of 3 [3] However, our misstatement does not change our conclusions regarding Silvers’s

ineffective assistance of counsel claims. For all the reasons set forth in our

original opinion, Silvers has not shown a reasonable probability existed that but

for his trial counsel’s alleged errors, the result of his trial would have been

different. Thus, while we grant this petition to address the State’s argument,

with these comments, we affirm our original opinion.

Pyle, J., and Weissmann, J., concur.

ATTORNEY FOR APPELLANT Victoria Bailey Casanova Casanova Legal Services, LLC Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana

Court of Appeals of Indiana | Opinion on Rehearing 24A-PC-277 | April 2, 2025 Page 3 of 3