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