Larry Warren v. State of Indiana (mem. dec.)
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Opinion
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 06 2020, 10:37 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Curtis T. Hill, Jr. Public Defender of Indiana Attorney General of Indiana Lindsay Van Gorkom Evan Matthew Comer Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Larry Warren, March 6, 2020 Appellant-Petitioner, Court of Appeals Case No. 19A-PC-1299 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Respondent. Mark D. Stoner, Judge The Honorable Jeffrey L. Marchal, Magistrate Trial Court Cause No. 49G06-1508-PC-30158
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 1 of 36 [1] Larry Warren (“Warren”) was convicted of three counts of child molesting,1
each as a Class A felony, and two counts of child solicitation,2 each as a Class
D felony. On direct appeal, our court remanded the case for resentencing
pursuant to Blakely v. Washington, 542 U.S. 296 (2004). Warren appealed
following resentencing and later filed a petition for post-conviction relief. The
post-conviction court granted Warren’s petition in part by vacating the two
Class D felony convictions and sentences on the ground that they violated ex
post facto laws. Warren now appeals from the partial denial of his petition for
post-conviction review, raising the following consolidated and restated issues:
I. Whether Warren received ineffective assistance of counsel when trial counsel failed to contemporaneously object to the admission of State’s Exhibit 15, which was a sexually explicit video portraying Warren and the victim;
II. Whether Warren received ineffective assistance of counsel when appellate counsel on direct appeal failed to argue that the admission of State’s Exhibit 15 constituted fundamental error;
III. Whether Warren received ineffective assistance of counsel when appellate counsel on appeal following resentencing failed to challenge the trial court’s inadequate explanation for imposing consecutive sentences for two of the Class A felonies; and
1 See Ind. Code § 35-42-4-3. 2 See Ind. Code § 35-42-4-6.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 2 of 36 IV. Whether the post-conviction court erred when it failed to order a new sentencing hearing after vacating the sentence and conviction for each of the two Class D felonies.
[2] We affirm.3
Facts and Procedural History [3] The facts underlying Warren’s convictions were set forth in prior appeals as
follows:4
In approximately 1998, Warren met and became business partners with D.R., the mother of two minor daughters, J.R. and H.R. J.R. was nine years old when she met Warren, who was then approximately thirty-three years old. Soon Warren and D.R. began dating, and Warren began spending more time at D.R.’s house. Warren became a companion to J.R., driving her to skating lessons, taking her to movies, and taking her out to eat. At some point while J.R. was still nine years old, Warren began engaging in frequent sexual activity with her. For the first few years, the sexual activity included activities like oral sex but excluded intercourse. Then, when J.R. was thirteen years old, she and Warren began engaging in intercourse. Warren would often videotape sexual encounters with J.R., and he took inappropriate photographs of her. When J.R. was approximately
3 We thank the post-conviction court for its thorough, informative, and well-written order, which greatly assisted our consideration of Warren’s claims. 4 There were three separate appeals in this case; therefore, we will use the following abbreviations to cite to the records in each of those cases. We will refer to: (1) the direct appeal, Cause No. 49A04-1301-CR-25, as “CR-25”; (2) the resentencing appeal, Cause No. 49A02-1402-CR-89, as “CR-89”; and the underlying documents in the instant appeal as “PCR.”
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 3 of 36 fourteen and a half years old, Warren moved out of state for work.
When J.R. was eighteen or nineteen years old, she began a relationship with Warren, and he paid her rent on an apartment for one year. When Warren informed J.R. that he would not be renewing her lease, J.R. contacted police to report the incidents of child molesting Warren had committed during her childhood. J.R. had recovered a videotape recording depicting Warren and then-fourteen-year-old J.R. engaging in sexual activity, and she turned that videotape over to the police. J.R. also gave police inappropriate photographs Warren had taken of her when she was a minor.
[In January 2010, t]he State charged Warren with five counts of child molesting as Class A felonies and five counts of sexual misconduct with a minor as Class B felonies. [The State alleged that Warren had committed the Class A felony offenses between November 16, 1998 and November 15, 2002, when J.R. was under the age of fourteen.] The trial court subsequently dismissed the sexual misconduct counts because the statute of limitations had run, and the State moved to amend the information to add two counts of child solicitation as Class D felonies. [The State alleged that Warren committed child solicitation between November 16, 2002 and November 15, 2004, when J.R. was at least fourteen but less than sixteen years of age.] The trial court granted the State’s motion to amend.
Warren v. State, No. 49A04-1301-CR-25, 2013 WL 5532705 (“Warren I”), at *1
(Ind. Ct. App. Oct. 8, 2013), trans. denied.
[4] At his December 13, 2012 trial, Warren was represented by Felicia Howells
(“Howells”) and Andrea Ciobanu (“Ciobanu”). On the morning of trial,
Howells and Ciobanu filed a motion in limine, in part, to exclude from Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 4 of 36 evidence State’s Exhibit 15 (“Exhibit 15”), which was the “video allegedly
recorded by [Warren] in or about 2003, at a time when the alleged victim would
have been 14 years of age, purportedly depicting [Warren] digitally penetrating
the vagina of the alleged victim.” PCR Appellant’s App. Vol. II at 144. This was
the sixth such motion filed over the three years the case was pending that had
sought to prevent admission of Exhibit 15 on the basis that it was “overly
prejudicial and not probative.” CR-25 Appellant’s App. Vol. II at 246-47.
[5] Just prior to trial, the trial court heard argument from Howells and Ciobanu
regarding the six motions. Noting that Exhibit 15 “goes to” the Class D
felonies, Howells offered to stipulate that Warren had touched J.R. when she
was fourteen and a half years old, thus negating the need to introduce Exhibit
15. CR-25 Tr. Vol. I at 14. Howells argued that Exhibit 15 was not probative
because it “wouldn’t prove that [Warren] performed prior acts.” Id. at 15.
Ciobanu argued that Exhibit 15 did not “go to the initial A count, which
alleged molestation prior to the age of 14, it only addresses molestation by the
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 06 2020, 10:37 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Curtis T. Hill, Jr. Public Defender of Indiana Attorney General of Indiana Lindsay Van Gorkom Evan Matthew Comer Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Larry Warren, March 6, 2020 Appellant-Petitioner, Court of Appeals Case No. 19A-PC-1299 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Respondent. Mark D. Stoner, Judge The Honorable Jeffrey L. Marchal, Magistrate Trial Court Cause No. 49G06-1508-PC-30158
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 1 of 36 [1] Larry Warren (“Warren”) was convicted of three counts of child molesting,1
each as a Class A felony, and two counts of child solicitation,2 each as a Class
D felony. On direct appeal, our court remanded the case for resentencing
pursuant to Blakely v. Washington, 542 U.S. 296 (2004). Warren appealed
following resentencing and later filed a petition for post-conviction relief. The
post-conviction court granted Warren’s petition in part by vacating the two
Class D felony convictions and sentences on the ground that they violated ex
post facto laws. Warren now appeals from the partial denial of his petition for
post-conviction review, raising the following consolidated and restated issues:
I. Whether Warren received ineffective assistance of counsel when trial counsel failed to contemporaneously object to the admission of State’s Exhibit 15, which was a sexually explicit video portraying Warren and the victim;
II. Whether Warren received ineffective assistance of counsel when appellate counsel on direct appeal failed to argue that the admission of State’s Exhibit 15 constituted fundamental error;
III. Whether Warren received ineffective assistance of counsel when appellate counsel on appeal following resentencing failed to challenge the trial court’s inadequate explanation for imposing consecutive sentences for two of the Class A felonies; and
1 See Ind. Code § 35-42-4-3. 2 See Ind. Code § 35-42-4-6.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 2 of 36 IV. Whether the post-conviction court erred when it failed to order a new sentencing hearing after vacating the sentence and conviction for each of the two Class D felonies.
[2] We affirm.3
Facts and Procedural History [3] The facts underlying Warren’s convictions were set forth in prior appeals as
follows:4
In approximately 1998, Warren met and became business partners with D.R., the mother of two minor daughters, J.R. and H.R. J.R. was nine years old when she met Warren, who was then approximately thirty-three years old. Soon Warren and D.R. began dating, and Warren began spending more time at D.R.’s house. Warren became a companion to J.R., driving her to skating lessons, taking her to movies, and taking her out to eat. At some point while J.R. was still nine years old, Warren began engaging in frequent sexual activity with her. For the first few years, the sexual activity included activities like oral sex but excluded intercourse. Then, when J.R. was thirteen years old, she and Warren began engaging in intercourse. Warren would often videotape sexual encounters with J.R., and he took inappropriate photographs of her. When J.R. was approximately
3 We thank the post-conviction court for its thorough, informative, and well-written order, which greatly assisted our consideration of Warren’s claims. 4 There were three separate appeals in this case; therefore, we will use the following abbreviations to cite to the records in each of those cases. We will refer to: (1) the direct appeal, Cause No. 49A04-1301-CR-25, as “CR-25”; (2) the resentencing appeal, Cause No. 49A02-1402-CR-89, as “CR-89”; and the underlying documents in the instant appeal as “PCR.”
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 3 of 36 fourteen and a half years old, Warren moved out of state for work.
When J.R. was eighteen or nineteen years old, she began a relationship with Warren, and he paid her rent on an apartment for one year. When Warren informed J.R. that he would not be renewing her lease, J.R. contacted police to report the incidents of child molesting Warren had committed during her childhood. J.R. had recovered a videotape recording depicting Warren and then-fourteen-year-old J.R. engaging in sexual activity, and she turned that videotape over to the police. J.R. also gave police inappropriate photographs Warren had taken of her when she was a minor.
[In January 2010, t]he State charged Warren with five counts of child molesting as Class A felonies and five counts of sexual misconduct with a minor as Class B felonies. [The State alleged that Warren had committed the Class A felony offenses between November 16, 1998 and November 15, 2002, when J.R. was under the age of fourteen.] The trial court subsequently dismissed the sexual misconduct counts because the statute of limitations had run, and the State moved to amend the information to add two counts of child solicitation as Class D felonies. [The State alleged that Warren committed child solicitation between November 16, 2002 and November 15, 2004, when J.R. was at least fourteen but less than sixteen years of age.] The trial court granted the State’s motion to amend.
Warren v. State, No. 49A04-1301-CR-25, 2013 WL 5532705 (“Warren I”), at *1
(Ind. Ct. App. Oct. 8, 2013), trans. denied.
[4] At his December 13, 2012 trial, Warren was represented by Felicia Howells
(“Howells”) and Andrea Ciobanu (“Ciobanu”). On the morning of trial,
Howells and Ciobanu filed a motion in limine, in part, to exclude from Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 4 of 36 evidence State’s Exhibit 15 (“Exhibit 15”), which was the “video allegedly
recorded by [Warren] in or about 2003, at a time when the alleged victim would
have been 14 years of age, purportedly depicting [Warren] digitally penetrating
the vagina of the alleged victim.” PCR Appellant’s App. Vol. II at 144. This was
the sixth such motion filed over the three years the case was pending that had
sought to prevent admission of Exhibit 15 on the basis that it was “overly
prejudicial and not probative.” CR-25 Appellant’s App. Vol. II at 246-47.
[5] Just prior to trial, the trial court heard argument from Howells and Ciobanu
regarding the six motions. Noting that Exhibit 15 “goes to” the Class D
felonies, Howells offered to stipulate that Warren had touched J.R. when she
was fourteen and a half years old, thus negating the need to introduce Exhibit
15. CR-25 Tr. Vol. I at 14. Howells argued that Exhibit 15 was not probative
because it “wouldn’t prove that [Warren] performed prior acts.” Id. at 15.
Ciobanu argued that Exhibit 15 did not “go to the initial A count, which
alleged molestation prior to the age of 14, it only addresses molestation by the
videos on admittance that it happened at 14,” which coincides with the Class D
felonies. Id. at 15. Howells also argued that “with respect to the video
recordings and pictures of alleged victim naked taken by [Warren] at his
mother’s home . . . [and] in a hotel room, we again strongly reiterate that that
should be excluded . . . . Those pictures are highly prejudicial and
inflammatory.” Id. at 19. Warren, likewise, sought to suppress certain letters
that J.R. wrote to Warren, arguing that they were not relevant and more
prejudicial than probative. Id. at 21-22.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 5 of 36 [6] The State argued that Exhibit 15 was “‘part and parcel of the crimes charged
here. Not only is it actually a part of the crime in Counts [VI] and [VII],5[ ] but
it is also part and parcel of crimes . . . as charged in [I] through [V] as it goes to
the nature of the relationship for those counts . . . .’” Id. at 12. The State said it
did not agree that Warren could stipulate to having committed the two Class D
felonies. Id. at 14. The State argued that the exhibits were all “relevant” and
“part and parcel of the crime.” Id. at 23. Argument on the motions to exclude
the incriminating photographs and Exhibit 15 was extensive. Id. at 12-32. The
trial court denied Warren’s requests to exclude the photographs and Exhibit 15
and denied Warren’s offer to stipulate that he had committed the Class D
felonies by touching J.R. in a sexual way when she was fourteen years old. Id.
at 14, 27.
[7] A jury was empaneled, and during opening argument, Howells contended that
J.R.’s credibility was suspect, stating,
[Y]ou’re going to meet a 24-year-old J.R. who took advantage of a situation, who when our client, Mr. Warren, stopped helping her out with her children, stopped helping her out with her rent, stopped assisting her financially, . . . after 12 years or so of alleged abuse, suddenly raises an issue of, he abused me from the time I was 9 until I was 14, 15. Which is quite interesting, because none of these allegations were made when she was 9, when she was 10, when she was on a school bus at around 11,
5 In the original information, the State charged Warren with Class B felony sexual misconduct with a minor under Counts VI through X. Those counts were dismissed, and the State amended the information to charge Warren with Class D felony child solicitation under Counts XI and XII. Notwithstanding that numbering, the trial court referred to the child solicitation felonies as Counts Six and Seven. CR-25 Tr. Vol. II at 319-22.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 6 of 36 and she was asked by her friend . . . about the relationship . . ., she denied there was a relationship . . . .
So you’re going to hear a J.R. who, when it was convenient for her, when, for lack of a better phrase, the well runs dry, suddenly these harsh allegations, these life-altering, these incredible allegations are made for something that has allegedly been going on since age 9.
[W]e will introduce evidence . . . that Mr. Warren, our client, was paying her rent . . . . And when he informed her that he was no longer going to be able to pay her rent . . . she was livid. We’re going to show that she went to the apartment manager and [repeatedly] told the apartment manager that I will get him. . . . And yeah, she got him. You guys are here today. He’s sitting over there simply because he was no longer supporting her.
So you’re going to meet a J.R. who’s not this 9-year-old J.R. who’s a victim; you’re going to meet . . . a 24-year-old J.R. who really knows how to work the system, who really knows how to take things and use them to her advantage.
CR-25 Tr. Vol. I at 54-56. Howells argued to the jury that dates were important;
noting that a conviction could not rest on vagueness. Id. at 56.
[8] Addressing the contents of Exhibit 15, Howells argued:
[Y]ou are going to be presented with . . . a video of J.R. and [Warren] together. And in this particular video, there is an image of . . . [Warren] touching J.R. The video will say that this happens at [the age of] 14. Now, when you look at the charges that have been filed against Mr. Warren, the “A” charges, the most severe charges, have to do with the ages prior to 14. So the only objective evidence that they have is a video showing
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 7 of 36 something at 14. Everything relating to what happened between 9, 10, 11, 12 is all conjecture, it’s all testimony. . . . No one went to a nurse. No one went to a social worker. There was no medical examination ever done. So I just want you to just look at that video with the knowledge that with respect to the items between 9 and 14, there’s nothing, except he touched me. . . . That’s it. Or did this to me or he did that. But again, I remind you there are no dates.
Id. at 56-57.
[9] J.R. was the State’s key witness and testified that Warren had committed
various acts of vaginal penetration, including acts that occurred in her mother’s
house when J.R. was nine years old, in Warren’s mother’s house when J.R. was
thirteen, and at a Ramada Inn when she was thirteen. Id. at 62-73. The State
introduced a number of exhibits during J.R.’s testimony, including a letter J.R.
wrote to Warren when she was about twelve years old, describing her intimate
relationship with Warren. CR-25 State’s Conf. Ex. 2. When the State moved to
admit Exhibit 15, the trial judge asked, “Response from the defense?” CR-25
Tr. Vol. I at 86. Ciobanu responded, “I have no objection, Your Honor,” and
the State admitted Exhibit 15. Id. at 87. J.R. testified that the sex acts depicted
in the video, as well as the acts committed in the homes and in a Ramada Inn,
were all performed in Marion County. J.R. identified Warren as the man
performing the sexual acts. Id.
[10] Against advice of counsel, Warren testified that he had not engaged in anything
sexual in nature with J.R. when she was between the ages of nine and fourteen.
Id. at 205. He reiterated that nothing sexual happened at J.R.’s mother’s house
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 8 of 36 and nothing happened at his mother’s house. Id. at 208. Admitting that he had
seen Exhibit 15, Warren testified that the video depicted the first time that he
had any kind of sexual contact with J.R. Id. at 208-09. Although the video
suggested that J.R. had intercourse that day, Warren denied that he was the one
with whom she had intercourse. Id. at 230-31. Instead, Warren testified that
J.R. and her boyfriend had engaged in intercourse earlier that day. Id. Warren
said that he had no sexual relationship with J.R., other than that shown in
Exhibit 15, until J.R. was eighteen years old. Id. at 215.
[11] In closing, the State recited J.R.’s testimonial evidence as proof of the five
counts of Class A felony child molesting and cited to Exhibit 15 as support for
the Class D felony counts. CR-25 Tr. Vol. II at 252-55. The jury found Warren
guilty of three counts of Class A felony child molesting and two counts of Class
D felony child solicitation but found him not guilty of the remaining two counts
of Class A felony child molesting. Id. at 275. The trial court sentenced Warren
to “30 years plus 10 years aggravating” for each Class A felony conviction and
“one and a half years plus one and a half years aggravating” for each Class D
felony conviction and ordered that the sentences would run concurrently,
except that one of the sentences for child molesting would run consecutive to
the others, for an aggregate term of eighty years. Id. at 319-20.
[12] On direct appeal, Warren’s appellate counsel, Victoria L. Bailey (“Bailey”),
raised just one issue: “[W]hether the trial court erred when it enhanced
[Warren’s] sentence based on aggravators that were neither found by a jury nor
admitted in accordance with the holding in Blakely v. Washington, 542 U.S. 296
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 9 of 36 (2004).” Warren I at *1. Our court observed that Warren committed the
offenses prior to the April 2005 amendment of Indiana’s sentencing scheme;
therefore, Warren was entitled to be sentenced under the former presumptive
sentencing scheme to which Blakely applied. Id. at *2. We held that Warren’s
testimony was sufficient to establish the aggravating circumstance that he
violated a position of trust with J.R., an aggravator that did not violate Blakely.
Id. at *3. However, we also held that the trial court’s other two aggravators
violated Blakely and, therefore, could not stand. Id. We remanded to the trial
court “with instructions to afford the State an election to prove to a jury those
aggravating circumstances initially presented to, and found by, the trial court.”
Id. We also held that, should the State forgo that election, the trial court was
instructed to reconsider the appropriate sentence based on the single,
established violation of a position of trust. Id.
[13] During the resentencing hearing, the State did not argue aggravators to a jury;
instead, it proceeded to resentencing with only the established aggravating
circumstance that Warren had violated a position of trust with J.R. CR-89 Tr.
Vol. I at 4. Warren offered mitigating circumstances saying that, while
incarcerated, he had completed numerous courses, had no criminal history, and
“had no conduct reports.” Id. at 6, 11. He said he was employed by PEN
Products, was enrolled in an apprenticeship program, served as an executive
officer with the American Legion, regularly attended church, and played and
helped coach softball. Id. at 6. Warren testified that he was still being treated
for post-traumatic stress disorder (“PTSD”), which arose after his military
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 10 of 36 service. Id. at 8. In response to defense counsel’s question of what he regretted,
Warren said:
[T]his has been a big struggle for me, Your Honor. I have allowed myself to be put in situations that I should not have. And I’ve had to live with that every day. And I do apologize for my actions. I apologize for putting the Courts through this as well as the prosecutors, as well as my family and my attorneys. I just ask, Your Honor, to please have mercy on me. I deeply regret what I’ve done. . . . I will never allow these things to happen or be put in that position ever again, Your Honor. And I just would like to have mercy and ask mercy from the Courts and so that I can . . . so I can go home and be with my family and take care of my father, Your Honor. And be with my mom.
Id. at 11.
[14] The State commented that Warren had apologized to everyone but the victim
and her family and, again, reminded the court that Warren had, for many years,
violated a position of trust with J.R. Id. at 15. The State, responding to
Warren’s claim that he allowed himself to be put in a situation, said:
He was a grown-up. She was a child. That position of trust in a child molesting case is the worst aggravator that a person can violate with a child. That child was with him. Taking her places. He took her to . . . ice skating lessons. He took her to the movie. The video that we saw was of them spending the day together, driving around in a car where he was letting her drive when she was fourteen, videotaping her, videotaping her ice skating and then taking her to a . . . trailer and performing criminal deviate conduct on her [by digital penetration]. That is not what a grown-up does or a person who has [PTSD] or any of those things, does to a child. That man molested a child for a
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 11 of 36 long period of time. That position of trust is the worst aggravator that can be ever done to a child in that case. This isn’t a modification of sentence. So I would ask that the Judge give little weight to . . . the programs that he has taken while he’s been in D.O.C. These are crimes of violence which can run consecutively and if the Judge takes into account that these were three distinct acts that took place over . . . different periods of times. They were three different A felonies that he was found guilty of. So these should run consecutively, not concurrently.
Id. at 16.
[15] From the evidence presented, the trial court on resentencing found one
aggravating factor, Warren’s violation of the position of trust, and one
mitigating circumstance, his lack of criminal history. Id. at 18-19. The court
stated: “with respect to the proposed mitigator that you’re likely to respond
well to short term imprisonment and you [are] low risk to re-offend, the Court
finds there is insufficient evidence to justify that mitigator and rejects that
mitigator looking at the nature and circumstances of the offense and
convictions.” Id. at 18. The court rejected Warren’s proposed mitigator of his
PTSD. Id. The court also rejected Warren’s proposed mitigator that he was
molested as a child and stated: “If you were molested as a child, if that's true,
then you understand the pain and the trauma that has resulted by being a victim
of molest.” Id. The court rejected Warren’s proposed mitigator that he was on
GPS monitoring for two years and did not re-offend. Id. at 19. The trial court
found the aggravating factor of violating a position of trust outweighed the
mitigating factor of lack of criminal history. Id. The court sentenced Warren to
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 12 of 36 thirty years, aggravated by five years, for each of his Class A felony child
molesting convictions and one and a half years, aggravated by one and a half
years, for each of his Class D felony child solicitation convictions. Id. The
court ordered the sentences for two of the Class A felony convictions to be
served consecutively and ordered the remaining sentences be served
concurrently, for an aggregate term of seventy years. Id.
[16] Represented by attorney Eric K. Koselke (“Koselke”), Warren appealed the
revised sentence, claiming that the trial court abused its discretion by failing to
give weight to significant mitigating circumstances, and that Warren’s sentence
was inappropriate in light of the nature of the offense and the character of the
offender under Appellate Rule 7(B). Warren v. State (“Warren II”), No. 49A02-
1402-CR-89, 2014 WL 4809796, at *1, *2 (Ind. Ct. App. Sept. 29, 2014), trans.
denied. Addressing the first issue, our court noted:
Under the pre-April 25, 2005 sentencing statutes, sentencing decisions rest within the discretion of the trial court and are reviewed on appeal only for an abuse of discretion. An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the court. In order for a trial court to impose an enhanced sentence, it must: (1) identify the significant aggravating factors and mitigating factors; (2) relate the specific facts and reasons that the court found to those aggravators and mitigators; and (3) demonstrate that the court has balanced the aggravators with the mitigators.
Warren II at *3 (internal citations and quotation marks omitted). Warren
argued that the trial court abused its discretion when it rejected all but one of
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 13 of 36 his proposed mitigating factors. Analyzing each factor in turn, our court
concluded that the trial court did not abuse its discretion when it found
Warren’s lack of criminal history as the sole mitigator. Id. at *3-*5.
[17] Koselke next argued that Warren’s sentence was inappropriate in light of the
nature of the offense and his character. Id. at *5. Pointing to his lack of
criminal history, his military service, his good conduct in prison, his poor
health, and the fact he “had been a victim of molestation,” Warren urged our
court to revise his sentence to an aggregate sentence of thirty years. Warren II at
*5. The State responded that the nature of the offense was heinous; Warren
“effectively groomed and bribed his young victim into providing him with sex
and not telling about it by taking her places she wanted to go and buying her
things that she wanted.” Id. (citation to record omitted). Regarding Warren’s
character, the State argued that he has not led a law-abiding life, experimented
with and used illegal substances, and did not have remorse for his sexual acts
against J.R. Id. Our court, considering the nature of the offense and Warren’s
character, said that Warren was in a position of trust with J.R., and he began
engaging in frequent sexual activity with her at age nine. Id. at *6. Warren
began having intercourse with J.R. when she was thirteen years old, and he
taped and took inappropriate pictures of those sexual encounters. Id. Our court
agreed that Warren had violated a position of trust but had no prior criminal
history. Id. Based on the evidence, our court explained that the trial court (1)
enhanced Warren’s Class A felonies by five years above the presumptive
sentence of thirty years, (2) ordered only two of the three Class A felony
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 14 of 36 convictions to run consecutively, and (3) ordered that the sentences for the two
class D felonies be served concurrently. Our court concluded that “in light of
the position of trust Warren held with J.R., . . . the sentence imposed by the
trial court is not inappropriate in light of the nature of the offense and the
character of the offender.” Id.
[18] In August 2015, Warren filed a pro se petition for post-conviction relief, which
was amended and refiled on January 8, 2018, after Warren obtained counsel.
In the Amended Petition, Warren made allegations regarding the ineffective
representation of trial counsel, appellate counsel on direct appeal, and appellate
counsel and appeal following resentencing. PCR Appellant’s App. Vol. II at 46-
49. Warren alleged that Howells and Ciobanu were ineffective for (1) failing to
file a motion to dismiss the two child solicitation counts based upon the
prohibition against ex post facto laws under the United States and Indiana
Constitutions and (2) failing to contemporaneously object under Indiana
Evidence Rules 401, 402, 403, and 404(b) to the introduction of Exhibit 15
during trial. Id. at 46, 51. Warren also alleged that Bailey was ineffective on
direct appeal was ineffective for (1) failing to argue that his convictions for child
solicitation violated the prohibition against ex post facto laws under the United
States and Indiana Constitutions and (2) failing to argue that the admission of
Exhibit 15 was fundamental error. Id. at 47. Further, Warren alleged that
Koselke was ineffective on appeal from resentencing for failing to argue that the
trial court erred in imposing consecutive sentences without adequately
explaining its reasoning. Id.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 15 of 36 [19] The post-conviction court held an evidentiary hearing on the Amended Petition
on August 16, 2018. PCR Tr. Vol. II at 2. Attorneys Ciobanu, Howells,
Koselke, and Bailey testified during the hearing. The State cross-examined
these witnesses and did not present additional evidence. The post-conviction
court issued Findings of Fact and Conclusions of Law Granting Post-
Conviction Relief in Part. PRC Appellant’s App. Vol. II at 142-65. The post-
conviction court held that Howells, Ciobanu, and Bailey were ineffective with
regard to Warren’s ex post facto claims because the version of the child
solicitation statute under which Warren was charged and convicted did not
exist at the time of the alleged offenses. Id. at 159, 162. Furthermore, Neither
Ciobanu nor Howells knew that the version of Indiana Code section 35-42-4-6
in effect on the dates of Warren’s alleged offenses was the version applicable to
Warren’s case. Id. at 155. During the time period when Warren was alleged to
have committed child solicitation offenses, Indiana Code section 35-42-4-6 did
not criminalize such conduct toward children age fourteen and above, unless
the defendant believed the child to be under the age of fourteen. Id. at 154.
Bailey acknowledged during the post-conviction hearing that she did not review
the version of Indiana Code section 35-42-4-6 in effect at the time of the
offenses and that she should have done so. Id. at 155. The post-conviction
court vacated Warren’s two convictions for child solicitation. Id. at 165.
[20] Warren also argued that Exhibit 15 was improperly admitted, specifically, that
(1) trial attorneys Howell and Ciobanu were ineffective for failing to make a
contemporaneous objection to Exhibit 15’s admission at trial; and (2) appellate
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 16 of 36 counsel, Bailey, was ineffective for failing to argue on direct appeal that the
admission of Exhibit 15 constituted fundamental error. Id. at 46-47. Warren
also argued that Koselke was ineffective for failing to argue on appeal that the
trial court’s resentencing order inadequately explained its reasons for imposing
a consecutive sentence. Id. at 47.
[21] During the August 16, 2018 post-conviction fact-finding hearing, Warren asked
Ciobanu and Howells why they did not object when the State sought to admit
Exhibit 15. Ciobanu provided two explanations saying, first, that it was not her
role and, second, that Warren “had all these different facts . . . that kept
morphing.” PCR Tr. Vol. II at 19-20. Howells and Ciobanu testified that they
thought the trial court’s pre-trial ruling on the admissibility of the Exhibit 15
was the last word on the matter and that their pre-trial arguments had preserved
the issue for appeal. Id. at 20-21, 39-40. In response to the State’s question of
whether Howells was aware of the general rule that the failure to
contemporaneously object to the introduction of evidence waives the issue on
appeal,” Howells replied, “[W]e were in the heat of trial. . . . We had a client
who had been deceptive to us. . . . I am well aware of that . . . I had to tend to
what was before me.” Id. at 40. Bailey testified that she had considered
whether to challenge the admission of Exhibit 15 on direct appeal. Id. at 58.
However, noting that trial counsel had not objected to the admission of Exhibit
15, and therefore the issue was not preserved for appeal, Bailey determined that
she could not meet the high standard to prove fundamental error. Id. at 60-61.
Koselke testified that, at the time he appealed, he knew the law regarding
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 17 of 36 consecutive sentencing, saying “that’s pretty basic stuff.” Id. at 53-54. Koselke
stated he did not raise the issue of consecutive sentences because Warren had
already received a ten-year reduction and, typically, when that issue is raised, it
is sent back to the trial court and, often times, the trial court changes the
sentencing statement but imposes the same sentence. Id. at 54. Koselke
believed, based on his review of the record, that it was best to argue abuse of
discretion and inappropriate sentence because, then, the sentence would be
imposed by the court of appeals, which Koselke believed was the better venue
for relief. Id. Koselke explained that he thought Warren “had a lot of
mitigation. Id.
[22] The post-conviction court found that the representation provided by Howells
and Ciobanu fell below professional norms, when they did not object to the
admission of Exhibit 15 yet found that counsel was not ineffective because
Warren had not proved prejudice from that error. PCR Appellant’s App. Vol. II at
160. The post-conviction court also found no ineffective assistance of counsel
by: (1) Bailey, because there was “not a reasonable probability that any
challenge to the admission of Exhibit 15 under a claim of fundamental error
would have been successful” when Ciobanu stated she had no objection to
Exhibit 15; and (2) Koselke, because the trial court provided sufficient
explanation of its reason for imposing consecutive sentences. Id. at 162-63, 164.
Finding that counsel provided effective assistance of counsel, our court left the
remaining three convictions and sentences for Class A felony child molesting
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 18 of 36 untouched and did not remand the case for resentencing. Warren now appeals.
Additional facts will be presented as necessary.
Discussion and Decision [23] This is an appeal from the denial of a petition for post-conviction relief.
We observe that post-conviction proceedings do not grant a petitioner a “super-appeal” but are limited to those issues available under the Indiana Post-Conviction Rules. [Ind. Post- Conviction Rule 1(1)]. Post-conviction proceedings are civil in nature, and petitioners bear the burden of proving their grounds for relief by a preponderance of the evidence. Ind. Post- Conviction Rule 1(5). A petitioner who appeals the denial of [post-conviction relief] faces a rigorous standard of review, as the reviewing court may consider only the evidence and the reasonable inferences supporting the judgment of the post- conviction court. The appellate court must accept the post- conviction court’s findings of fact and may reverse only if the findings are clearly erroneous. If a [post-conviction] petitioner was denied relief, he or she must show that the evidence as a whole leads unerringly and unmistakably to an opposite conclusion than that reached by the post-conviction court.
Massey v. State, 955 N.E.2d 247, 253 (Ind. Ct. App. 2011) (quoting Shepherd v.
State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (citations omitted), trans.
denied).
[24] Here, the post-conviction court made findings of fact and conclusions of law in
accordance with Indiana Post-Conviction Rule 1(6). “A postconviction court’s
findings and judgment will be reversed only upon a showing of clear error—that
which leaves us with a definite and firm conviction that a mistake has been
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 19 of 36 made.” Benefield v. State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011) (citations
and quotation marks omitted) (quoting Ben-Yisrayl v. State, 729 N.E.2d 102, 106
(Ind. 2000)). “The post-conviction court is the sole judge of the weight of the
evidence and the credibility of witnesses.” Woods v. State, 701 N.E.2d 1208,
1210 (Ind. 1998). We do not defer to the postconviction court’s conclusions of
law. Wilson v. State, 799 N.E.2d 51, 53 (Ind. Ct. App. 2003).
[25] Warren challenges the effectiveness of the representation of his trial attorneys,
appellate counsel on direct appeal, and appellate counsel on appeal after
resentencing. “The Sixth Amendment to the United States Constitution
guarantees criminal defendants the right to counsel and mandates that the right
to counsel is the 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. Effectiveness of counsel is a mixed
question of law and fact. Strickland, 466 U.S. at 698. To prevail on a claim of
ineffective assistance of counsel, Warren 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 counsels 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).
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 20 of 36 “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).
I. Ineffective Assistance of Trial Counsel [26] Warren argues that his trial counsel was ineffective for failing to make a
contemporaneous objection to the admission of Exhibit 15 on the basis it was
not relevant and more prejudicial than probative. “[T]o prevail on a claim of
ineffective assistance due to the failure to object, the defendant must show an
objection would have been sustained if made.” Overstreet v. State, 877 N.E.2d
144, 155 (Ind. 2007).
[27] Here, trial counsel filed numerous motions in limine seeking to exclude Exhibit
15 from evidence. In fact, shortly before trial, Howells and Ciobanu argued
against its admission. Nevertheless, when the State sought to introduce Exhibit
15 during trial, Ciobanu stated, “I have no objection, Your Honor.” CR-25 Tr.
Vol. I at 87. The post-conviction court found “that counsels’ failure to reassert
the objection to the admission of State’s Exhibit 15 when the State sought to
introduce the evidence at trial fell below prevailing professional norms.”
Appellant’s Br. at 17 (citing PCR Appellant’s App. Vol. II at 160). Even so, the
post-conviction court found no ineffective assistance of counsel, because
Warren had not proved prejudice from trial counsels’ failure to object and
denied post-conviction relief on that issue. The post-conviction court found:
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 21 of 36 93. Having viewed State’s Exhibit 15 along with the remaining record, the Court is unable to find that an objection or renewed motion pursuant to Rule 403 would have been successful. Although the exhibit depicted unlawful sexual conduct that is disturbing, it is unlikely that the trial court would have sustained an objection on the basis that the video was overly prejudicial and not probative of the charges.
PCR Appellant’s App. Vol. II at 153-54.6
[28] Warren argues that the post-conviction court erred in making the above
determination because Warren was prejudiced by the cumulative error of his
own trial counsel’s failure to file a motion to dismiss the Class D felonies as
violative of ex post facto laws. Warren contends that Exhibit 15, which was
explicit sexual footage of J.R. when she was fourteen years old, was relevant
only to the Class D felonies and, without those counts, which were vacated,
Warren’s objection that Exhibit 15 was not relevant and was more prejudicial
than probative, would likely have been successful. Appellant’s Br. at 18. We
disagree. Exhibit 15 was relevant not only as proof of the Class D felonies but
also served as circumstantial evidence that allowed the jury to infer that Warren
and J.R. had a sexual relationship when J.R. was thirteen years old, a claim
that Warren denied. Furthermore, Exhibit 15 undermined Warren’s claim that
J.R. had made up the claims of molestation to seek revenge for Warren’s
6 Furthermore, on the morning of trial, Howells and Ciobanu made extensive arguments to the court on Warren’s motion in limine to exclude Exhibit 15, and the trial court denied that motion. We note that it was improbable that the trial court would have sustained any objection to the admission of Exhibit 15 just hours later.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 22 of 36 nonpayment of her rent. The trial court understood that Exhibit 15 was
relevant to the Class A felonies as evidenced by its ruling to admit Exhibit 15
even after Warren offered to stipulate to having committed the Class D felonies.
[29] Even if Warren is correct that the objection to Exhibit 15 would have been
sustained under Indiana Evidence Rule 404, merely asserting the violation of a
particular rule of evidence, as Warren does here, is not enough to establish
prejudice. See Kubsch v. State, 934 N.E.2d 1138, 1149 (Ind. 2010) (no prejudice
where defendant failed to object to evidence that was not relevant to the charges
filed against defendant). Rather, the Strickland test’s prejudice prong requires an
additional showing that the improper admission of evidence actually had an
adverse impact on defense by establishing a reasonable probability that but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002).
[30] Here, Warren has not shown a reasonable probability that the jury was
improperly swayed by the admission of Exhibit 15 in deciding that Warren was
guilty of three of the five counts of Class A felony child molesting. First,
Howells was able to downplay the importance of Exhibit 15 when, during
opening argument, she argued that Exhibit 15 showed only events that occurred
when J.R. was fourteen, events that had no bearing on Warren’s guilt for the
Class A felonies, which occurred when J.R. was age nine through age thirteen.
CR-25 Tr. Vol. I at 56-57. Second, Warren had the opportunity to fully cross-
examine J.R. after Exhibit 15 was introduced. Id. at 88-120.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 23 of 36 [31] There are additional reasons that it was not reasonably probable that the jury
was swayed by the admission of Exhibit 15. Although graphic and disturbing,
Exhibit 15 was relevant and just one of the pieces of evidence that supported a
finding of guilt on the three counts of Class A felony child molesting. J.R.
testified that Warren had committed various acts of vaginal penetration from
the age of nine through thirteen, including putting his penis in her vagina, once
at her mother’s house when J.R. was nine years old, once at Warren’s mother’s
house when J.R. was thirteen, and once at a Ramada Inn when she was
thirteen. Id. at 62-73. J.R. testified that some sexual acts caused her to have
vaginal bleeding around age nine. Id. at 65. Age nine was also when J.R.
began to engage in oral sex with Warren and watch pornography. PCR
Appellant’s App. Vol. II at 148.
[32] Further, the State submitted other substantial evidence that made it unlikely the
jury was unduly swayed by the admission of Exhibit 15. The State introduced
other exhibits, including a letter J.R. wrote to Warren when she was twelve
years old, describing her intimate relationship with Warren. CR-25 State’s Conf.
Ex. 2. In that letter, J.R. threatened to tell people about their relationship unless
Warren stopped dating another girl; J.R. testified she was mad at that time
because “[Warren] was supposed to be her boyfriend.” CR-25 Tr. Vol. I at 80-
81. Over Warren’s objection, the State also introduced several photographs
taken by Warren that showed J.R., in sexual poses and wearing lingerie. Id. at
83-86. J.R. testified she remembered that, at thirteen years of age, she and
Warren went to Priscillas, “a sex toys store.” Id. at 72. J.R. had told Warren
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 24 of 36 she “wanted to wear a really cute outfit for him, so [Warren] went in and
bought [her] a black kind of see-through top and the bottoms that go with it.”
Id. J.R. testified, “They were like little booty shorts.” Id. In one photograph,
J.R. was “depicted in the black top purchased by Warren shortly before they
engaged in sexual intercourse.” PCR Appellant’s App. Vol. II at 149.
[33] Additionally, the jury had the opportunity to judge Warren’s credibility when,
against the advice of counsel, he testified. Warren said he met J.R. when she
was nine years old but denied he had engaged in anything sexual in nature with
J.R. when she was between the ages of nine and fourteen. CR-25 Tr. Vol. I at
205. Specifically, Warren challenged J.R.’s account that something sexual
happened at J.R.’s mother’s house and at his mother’s house. Id. at 208-09.
Admitting that he had seen Exhibit 15, Warren testified that the video depicted
the first time that he had any kind of sexual contact with J.R. Id. at 209.
Although the video suggested that J.R. had intercourse that day, Warren denied
that he was the one with whom she had intercourse. Id. at 231. Instead,
Warren testified that J.R. and her boyfriend had engaged in intercourse earlier
that day. Id. at 230-31. Warren said that he had no sexual relationship with
J.R., other than that shown in Exhibit 15, until J.R. was eighteen years old. Id.
at 215. When J.R. was around eighteen years old, she told her mother about
Warren having sexually abused her as a child. Soon thereafter, Warren learned
that J.R.’s mother knew about his sexual activity with J.R. J.R. and her mother
threatened to call the police. Id. at 232. Warren admitted that he made an
agreement with J.R. that he would pay her rent for a year. Id. at 232-33.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 25 of 36 [34] The manager of an apartment complex testified that she had leased an
apartment, and Warren and J.R.’s names were both on the lease. Id. at 175.
J.R. lived in the apartment, and Warren paid the rent. After the first year,
Warren took his name off the lease. Id. at 179. The manager testified that,
upon learning that Warren was no longer going to be paying the rent, J.R.
became angry. Id. at 180. When J.R. did not pay the rent, the apartment
complex sued J.R. and had her evicted. Id. at 181.
[35] Here, the question of whether J.R. was molested between ages nine and
fourteen was predominantly a question of credibility. J.R. testified that Warren
had sexually molested her continually from age nine through age fourteen, at
which time he moved away. J.R. testified that the relationship began again in
her late teenage years and continued until she was nineteen. The State
introduced photographs and letters that supported J.R.’s testimony. Warren
argued that he did not sexually molest J.R., saying that J.R. told no one about
the alleged molestation during her childhood and only mentioned it when
Warren stopped paying her rent. The jury believed J.R.’s testimony over
Warren’s testimony. While Exhibit 15 was not direct evidence of the elements
to prove Class A felony child molesting, it allowed the jury to determine
whether it was more probable than not that J.R. was telling the truth. From our
review of the totality of the evidence, we find no reasonable probability that, but
for the admission of Exhibit 15, the proceedings below would have resulted in a
different outcome. Gibson v. State, 133 N.E.3d 673, 682 (Ind. 2019).
Furthermore, an evidentiary error, if any, is harmless if its probable impact on
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 26 of 36 the jury, in light of all the evidence in the case, is sufficiently minor so as not to
affect the substantial rights of the parties. Lambert v. State, 675 N.E.2d 1060,
1065 (Ind. 1996), cert. denied, 520 U.S. 1255 (1996). Trial counsel was not
ineffective in their representation of Warren.
II. Ineffective Assistance of Counsel on Direct Appeal [36] Warren next contends that Bailey, his appellate counsel on direct appeal,
provided ineffective representation when she did not argue that trial counsel’s
failure to object to the admission of Exhibit 15 constituted fundamental error.
To establish fundamental error, a defendant must show that the alleged error
was so prejudicial as to make a fair trial impossible. Ryan v. State, 9 N.E.3d
663, 668 (Ind. 2014). Here, the alleged error was Bailey’s failure to argue on
direct appeal that trial counsel committed fundamental error by not objecting to
the admission of Exhibit 15. In other words, Warren’s argument is that the
admission of Exhibit 15 was an error so prejudicial as to make a fair trial
impossible.
[37] “[B]ecause the standard for ineffective assistance prejudice is based on a
reasonable probability of a different result and fundamental error occurs only when
the error is so prejudicial that a fair trial is rendered impossible,” our court has held
that “the standard required to establish fundamental error presents a higher
bar.” Benefield, 945 N.E.2d at 804 (emphasis added). “Establishing a claim of
fundamental error requires a showing of at least as much prejudice to the
defendant as a claim of ineffective assistance of [trial] counsel.” Culver v. State,
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 27 of 36 727 N.E.2d 1062, 1070 (Ind. 2000). “[A] finding that Defendant was not
denied the effective assistance of [trial] counsel also establishes that the alleged
error was not so prejudicial as to constitute fundamental error.” Id.
Accordingly, our finding that Warren’s trial attorneys were not ineffective for
failing to “object” to the admission of Exhibit 15, necessitates the conclusion
that Bailey, likewise, was not ineffective for failing to argue that the lack of an
“objection” constituted fundamental error. Regardless of whether Bailey’s
representation fell short of prevailing professional norms, Warren has not
proven that Bailey was ineffective for failing to argue that the admission of
Exhibit 15 by the trial court was fundamental error.
III. Ineffective Counsel on Appeal from Resentencing [38] Koselke, who represented Warren on appeal from resentencing, raised two
issues, (1) whether the trial court abused its discretion by failing to give weight
to significant mitigating circumstances, and (2) whether, under Appellate Rule
7(B), Warren’s sentence was inappropriate in light of the nature of the offense
and Warren’s character. Here, Warren contends that Koselke provided
ineffective representation when he did not also challenge the resentencing
court’s inadequate explanation for imposing consecutive sentences for two of his
Class A felony convictions. Appellant’s Br. at 18 (emphasis added).
[39] Citing to three Supreme Court cases—Lander v. State, 762 N.E.2d 1208 (Ind.
2002), Monroe v. State, 886 N.E.2d 578 (Ind. 2008), and Harris v. State, 897
N.E.2d 927 (Ind. 2008)—Warren argues, “Multiple times, the Supreme Court
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 28 of 36 has addressed the question of whether a trial court, in imposing consecutive
sentences under Indiana’s former presumptive sentencing scheme, adequately
explained its reasons for doing so.” Appellant’s Br. at 39. Warren asserts that in
those three cases, “readily available to appellate counsel at the time of Warren
II, the Supreme Court held the trial court’s explanation was inadequate and
thereafter revised the appellants’ sentences downward.” Id. at 39-40. Warren
maintains that this issue was significant and obvious from the face of the
record, and Koselke was ineffective for not raising it. Assuming without
deciding that Koselke should have raised this issue on appeal from
resentencing, we find Warren was not prejudiced.
[40] Warren committed his crimes before the legislature amended Indiana’s
sentencing statutes to provide for “advisory sentences” rather than
“presumptive sentences.” Monroe, 886 N.E.2d at 579. The sentencing statute in
effect at the time a crime is committed governs the sentence for that crime.
Harris v. State, 897 N.E.2d 927, 928-29 (Ind. 2008). Therefore, the prior
presumptive sentencing scheme applies. Monroe, 886 N.E.2d at 579.
[41] Warren is correct that “[a]fter a court has pronounced a sentence for a felony
conviction, the court shall issue a statement of the court’s reasons for selecting
the sentence that it imposes.” Ind. Code § 35-38-1-1.3. Indiana’s case law has
made clear that sentencing statements serve two primary purposes: (1) they
guard against arbitrary and capricious sentencing; and (2) they provide an
adequate basis for appellate review. Anglemyer v. State, 868 N.E.2d 482, 489
(Ind. 2007) (citing Dumbsky v. State, 508 N.E.2d 1274, 1278 (Ind. 1987)), clarified
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 29 of 36 on reh’g, 875 N.E.2d 218 (Ind. 2007). Under the prior presumptive sentencing
scheme, when the trial court imposed a sentence other than the presumptive
sentence, or imposed consecutive sentences where not required to do so by
statute, our Supreme Court “would examine the record to ensure that the court
explained its reasons for selecting the sentence it imposed.” Id. A sentencing
statement “must include a reasonably detailed recitation of the trial court’s
reasons for imposing a particular sentence.” Id. at 490. Before a trial court can
impose a consecutive sentence, it must “(1) identify all significant aggravating
and mitigating circumstances; (2) set forth the specific facts and reasons that
lead the court to find the existence of each such circumstance; and (3)
demonstrate that the mitigating and aggravating circumstances have been
evaluated and balanced in determining the sentence.” Harris, 897 N.E.2d at
929. Ways in which a trial court may abuse its discretion include “failing to
enter a sentencing statement at all . . . or the reasons given are improper as a
matter of law.” Anglemyer, 868 N.E.2d at 490-91.
[42] “When sentencing a defendant on multiple counts, an Indiana trial judge may
impose a consecutive sentence if he or she finds at least one aggravator. Smylie
v. State, 823 N.E.2d 679, 686 (Ind. 2005). “Certainly, where a judge finds that
aggravating and mitigating circumstances are in equipoise, we have required
concurrent sentences, Marcum v. State, 725 N.E.2d 852, 863-64 (Ind. 2000), just
as we have where the court has not found any aggravating circumstances at
all.” Smylie, 823 N.E.2d at 686. However, as our Supreme Court in Smylie
found that “our statutes do not erect any target or presumption concerning
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 30 of 36 concurrent or consecutive sentences.” Id. “Where the criminal law leaves
sentencing to the unguided discretion of the judge there is no ‘judicial
impingement upon the traditional role of the jury.’” Id. (quoting Blakely, 542
U.S. at 309). In Smylie, our Supreme Court found there is “no language in
Blakely or in Indiana’s sentencing statutes that requires or even favors
concurrent sentencing. Smylie, 823 N.E.2d at 686. Here, like in Smylie, the trial
court’s order that Warren serve consecutive terms after finding an aggravating
factor—that he violated a position of trust—did not increase Warren’s sentence
above the statutory maximum for each offense.7
[43] Here, both the trial court and the court on remand for resentencing entered a
sentencing statement, and both courts found aggravating factors and mitigating
factors. The trial court identified three aggravators: (1) Warren was in a
position of trust with J.R.; (2) at least one incident occurred when J.R.’s minor
sister was present; and (3) Warren violated a no contact order. Warren I, at *2.
On remand, to avoid having to prove the existence of aggravating factors to a
jury, the State argued only that Warren violated a position of trust. Each trial
court found Warren’s lack of prior criminal history as the sole mitigating
7 On direct appeal, Bailey argued that the trial court violated Blakely when imposing Warren’s sentence. Bailey recognized, however, that “Smylie held that Blakely did not impact a trial court’s ability to impose consecutive sentences.” CR-25 Appellant’s Br. at 4 n.2. As such Bailey stated, “Warren has no constitutional challenge to the trial court’s order that his sentence for Count II be served consecutive to-his sentence for Count I.” Id. (citing Smylie, 823 N.E.2d at 686). While this statement may have waived any complaints on appeal that the sentences should not run consecutively, the State does not assert that the issue has been waived. Therefore, we address this issue.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 31 of 36 circumstance. On balance, both trial courts found that the aggravating
circumstances outweighed the mitigating circumstances.
[44] Here, the only possible question regarding the propriety of the consecutive
sentences is whether or not there were sufficient aggravating circumstances to
support the decision to run the sentences consecutively. As we stated above,
the trial judge initially found three aggravators at the sentencing phase: (1)
Warren violated his position of trust with J.R.; (2) at least one incident occurred
when J.R.’s minor sister was present; and (3) Warren violated a no contact
order. Warren I, at *2. While the second and third aggravators “cannot support
an enhanced sentence in the absence of a jury finding, [they] can be used to
support the decision to impose consecutive sentences inasmuch as findings to
support consecutive sentences can be made by the court.” Bryant v. State, 841
N.E.2d 1154, 1157 (Ind. 2006) (citing Smylie, 823 N.E.2d at 686). Here, there
were sufficient aggravating factors to enhance Warren’s sentences and to run
the sentences for two of the three Class A felonies consecutively. Koselke’s
failure to raise the issue that there was insufficient explanation for running the
sentences consecutively, if error, did not prejudice Warren.
IV. Resentencing after Post-Conviction Relief [45] Finally, Warren contends that the post-conviction court abused its discretion
when it did not remand the case for resentencing after vacating the convictions
and sentences for the two Class D felonies. Appellant’s Br. at 7. He maintains
that, once the post-conviction court vacated those two counts, it “was required
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 32 of 36 to fashion an appropriate remedy.” Id. at 48. Warren cites to our Supreme
Court’s reasoning in Angleton v. State, saying:
A sentence supported by permissible grounds sufficient to persuade the reviewing court that the original sentencing decision would have been the same had the trial court not relied on the impermissible factor should be affirmed. When the appellate court cannot reach that conclusion with confidence, it should remand for a new sentencing or revise the sentence.
Id. at 47 (citing Angleton v. State, 686 N.E.2d 803, 815 (Ind. 1997)).
[46] Citing to our court’s decision in Sanjari v. State, 981 N.E.2d 578, 583 (Ind. Ct.
App. 2013), trans. denied, Warren maintains that remand was required here
because “a trial court is likely to view individual sentences in a multi-count
proceeding as part of an overall plan, a plan that can be overthrown if one or
more of the convictions is reversed or reduced in degree.” Appellant’s Reply Br.
at 28. Noting that the two Class D felony convictions were factors in the trial
court’s original sentencing decision, Warren argues, “[T]he post-conviction
court should have ordered a new sentencing hearing if it could not conclude
with confidence that the trial court’s original sentencing decision would have
been the same if Warren had only been sentenced on the remaining three
counts.” Appellant’s Br. at 48 (citing Angleton, 686 N.E.2d 815). As Warren
notes, the post-conviction court did not make any findings or conclusions
pertinent to the question of whether Warren’s aggregate sentence of seventy
years would have been the same “had he only been sentenced on his remaining
convictions.” Id.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 33 of 36 [47] On his prior remand for resentencing, Warren offered as mitigating
circumstances that he had no criminal history, was likely to respond well to
short-term imprisonment and to take from prison the skills that “would allow
him to not reoffend,” had been diagnosed with PTSD after serving in the
military, had been molested as a child; and was on G.P.S. monitoring for two
years without offending. CR-89 Tr. Vol. I at 14-15. Warren also stated that,
while in prison, he had completed various courses, “had no conduct reports,”
was in an apprenticeship program, attending church, and played and helped
coach softball. Id. at 6. Explaining its reasons, the trial court rejected most of
Warren’s claims of mitigating circumstances but found that his lack of a prior
criminal history was a mitigating factor. Id. at 18.
[48] The trial court found as an aggravating circumstance that Warren was in a
position of trust with J.R. and had violated that trust. Id. at 19. Balancing the
aggravating circumstance against the mitigating circumstance, the trial court
found that the aggravating factor outweighed the mitigating factor. Id.
Reiterating that Warren was a father figure to J.R., the trial court sentenced
him to thirty years aggravated by five years for a total of thirty-five years for
each of the convictions for Class A felony child molesting. Id. The trial court
stated that Warren’s “violation of a position of trust to the victim justifie[d]
consecutive sentencing and r[an] the sentence in Count [II] consecutive to the
sentence in Count [I] for a total of seventy years. Id. The trial court ordered the
thirty-five-year sentence for Count [III] to run concurrent with the seventy-year
sentence. Id. The trial court also ordered Warren to serve three years for each
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 34 of 36 of the Class D felonies and ordered those sentences to run concurrent with each
other and with the seventy-year sentence. Id.
[49] While it is true that a trial court may view individual sentences in a multi-count
proceeding as part of an overall plan, a plan that can be overthrown if one or
more of the convictions is reversed or reduced in degree, that reasoning is not
applicable in the instant case. Here, the trial court viewed the sentencing for the
Class A felony counts as completely distinct from the sentencing for the Class D
felony counts. At the initial sentencing hearing, the trial court ordered Warren
to serve an aggregate sentence of eighty years—forty years for each of three
Class A felonies, with two of those sentences running consecutive to each other
and the remaining sentences, including three years for each of the Class D
felonies, running concurrently. On remand for resentencing, the trial court
ordered an aggregate sentence of seventy years by reducing the Class A felony
sentences to thirty-five years each but again sentenced Warren to three years for
each of the Class D felony convictions and ran those sentences plus the
remaining Class A felony sentence concurrent with the sentence of seventy
years. When given the opportunity on resentencing to change the sentences for
the Class D felony convictions, the trial court ordered Warren to serve the exact
same three-year sentences concurrently. Unlike the court in Sanjari, here, we
are persuaded that the seventy-year aggregate sentence would have been the
same even had the trial court not considered the impermissible convictions for
Class D felony child solicitation. The post-conviction court did not abuse its
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 35 of 36 discretion when it chose not to remand for resentencing and, instead, ordered
Warren to serve the aggregate seventy-year sentence.
[50] Here, there was no ineffective assistance of trial counsel and no ineffective
assistance of appellate counsel on either direct appeal or on appeal following
resentencing. Furthermore, the post-conviction court did not abuse its
discretion when it affirmed Warren’s sentence, instead of remanding it for
resentencing
[51] Affirmed.
Bailey, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 36 of 36
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