Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Jun 12 2013, 9:00 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER Public Defender of Indiana Attorney General of Indiana
CORY J. LIGHTNER IAN MCLEAN Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
STANLEY B. CRUMBLE ) a/k/a MELVIN COLEMAN, ) ) Appellant-Petitioner, ) ) vs. ) No. 32A01-1211-PC-487 ) STATE OF INDIANA, ) ) Appellee-Respondent. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT The Honorable Robert W. Freese, Judge Cause No. 32D01-1002-PC-2
June 12, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge After committing a string of robberies that spanned three counties and resulted in
the accumulation of numerous convictions and lengthy imprisonment terms, appellant-
petitioner Stanley Crumble now seeks post-conviction relief. Crumble complains that his
trial counsel was ineffective because he was misinformed about the possible sentence that
he could receive. In a connected argument, Crumble contends that his guilty plea was not
voluntary, knowing, and intelligent, because his trial counsel did not properly advise him
regarding possible imprisonment terms. Finally, Crumble maintains that the State failed
to prove its affirmative defense of laches because he did not unreasonably delay the case,
and the State was not prejudiced.
We conclude that Crumble has failed to show that the post-conviction court erred,
inasmuch as he mostly directs this Court to his own self-serving and uncorroborated
statements coupled with the fact that an objective and reasonable defendant would have
pleaded guilty under these facts and circumstances. Moreover, we find that the post-
conviction court did not err in determining that the State had established its defense of
laches. Accordingly, we affirm.
FACTS
At approximately 9:30 p.m. on November 27, 2002, Crumble entered a Speedway
gas station in Hendricks County. Crumble was wearing dark clothing and a stocking cap.
Crumble asked for cigarettes, and Candace Kennedy, the attendant, asked Crumble for
2 identification. Crumble became enraged, placed his hand in his pocket, and said, “You
know what this is, and you know what I want.” Tr. App. p. 40.1
Crumble moved to Kennedy’s side of the counter and ordered her to open the cash
register. When Kennedy explained that she could not open the register without a key,
Crumble struck her in the face with his fist causing her to fall to the floor. When
Kennedy stood up, Crumble again ordered her to open the cash register; however,
because Kennedy did not have the key to open it, Crumble repeatedly hit her in the face
nearly knocking her unconscious. After Kennedy had been brutally beaten, Crumble left
the store.
Luckily, Chris Snoeberger, a customer, entered the store and called 911 when he
found Kennedy “dazed and injured.” Tr. App. p. 39. Kennedy did not recall anyone
finding her.
Larry Piper was putting gasoline in his vehicle and saw an African-American man
exit the store, enter a blue Dodge Neon, and drive west on U.S. Highway 36. Piper
relayed this information to the Avon Police Department, who quickly found the Dodge
Neon. Crumble led them on a chase during which the Dodge collided with several
vehicles before finally coming to a stop.
Crumble was arrested and taken to Wishard Hospital, where it was determined that
the wounds on his knuckles were “consistent with . . . punching someone repeatedly
1 The Appendix from Crumble’s trial will be cited as Tr. App., and the transcript from his trial will cited as Tr. The Appendix from Crumble’s post-conviction proceedings will be cited as PCR App., and the transcript from those proceedings will be cited as PCR Tr. 3 without any type of hand protection.” Tr. App. p. 41. Inside the Dodge Neon, the police
officers recovered various items including $10, dark clothing, an unsheathed ten-inch
hunting knife, a black stocking hat, and eight cartons of Newport cigarettes affixed with
orange or white stickers bearing the number “6125.” Id. at 39-40.
Police officers returned to the Speedway gas station where they photographed
what appeared to be blood on the floor near the attendant’s counter. Officers noted
empty areas on the shelf where Newport cigarettes were displayed. At the officers’
request, store managers inventoried the cigarettes and found that nine cartons of Newport
cigarettes were missing. The manager told police officers that the store’s identification
number, 6125, had been written on either orange or white labels and affixed to the
cigarette cartons offered for sale. The photographs and other physical evidence obtained
at the scene were taken to the Avon Police Department and stored in the evidence room.
The police officers then traveled to Wishard Hospital and collected fingerprints of
the man driving the Dodge Neon. The fingerprints were submitted to Sandy Hurt of the
Indianapolis Police Department’s2 (IPD) identification unit. Using IPD resources, Hurt
discovered that the fingerprints taken from the driver of the Dodge Neon belonged to
Crumble.
Officers obtained a photograph of Crumble and composed a photographic array.
The photographic array was shown to Kennedy who identified Crumble as the man who
had beaten her. 2 These events occurred before the Indianapolis-Metropolitan Police Department was established on January 1, 2007 by City-County Ordinance 110. 4 Police officers also obtained a surveillance video from the store. The surveillance
video depicted Crumble robbing the Speedway and brutally beating Kennedy.
On December 6, 2002, Crumble was charged with class A felony robbery, class B
felony criminal confinement, class C felony battery, and class D felony theft. On
February 28, 2003, the State filed a habitual offender enhancement.
Approximately two weeks before Crumble was charged in this case, he had been
charged in Marion County under cause number 49G01-0211-FB-277965 (FB-277965)
with class B felony attempted robbery, six counts of class B felony robbery, two counts
of class C felony robbery, three counts of class B felony confinement, two counts of class
D felony confinement, and two counts of class A misdemeanor carrying a handgun
without a license. The State had also charged Crumble with being a habitual offender in
that case.
On December 13, 2002, Crumble was charged in Marion County under cause
number 49G01-0212-FC-300878 (FC-300878) with class C felony robbery. At the time
he committed these offenses, Crumble was on probation after serving nine years on four
counts of class B felony robbery and two counts of class B felony confinement. Crumble
was also facing a theft charge in Bartholomew County.
Mark Smith was appointed to represent Crumble. Smith contacted Crumble’s
Marion County counsel to discuss those charges. Smith also reviewed Crumble’s case
and discussed it with Crumble. Smith later testified that it was his practice to review
5 charges for double jeopardy concerns and that he was “positive that [he] probably did”
advise Crumble that he could not be punished for theft and robbery. PCR Tr. p. 6.
After analyzing Crumble’s case, Smith was convinced that Crumble had little
likelihood of success at trial because, among other things, Kennedy had identified him
from the photographic array, and the stolen cigarettes were recovered from Crumble’s
vehicle.
Originally, the State offered Crumble an open plea to robbery with the stipulation
that his sentence would be served consecutively to any sentences in Marion County.
Smith, however, negotiated an open plea to robbery in exchange for dismissing the other
charges, with no agreement as to whether the resulting sentence would be consecutive or
concurrent to Crumble’s Marion County sentences. With the exception of the balance of
a six-year suspended sentence, Smith believed that any of Crumble’s sentences in this
case, including the habitual offender enhancement, could be made consecutive or
concurrent with any sentence Crumble received in Marion County. Smith’s plan was to
request that the trial court allow his sentence to run concurrently with Crumble’s Marion
County sentences to allow him a “reasonable opportunity to have . . . some life after
incarceration.” PCR Tr. p. 10. If this request was successful, Crumble would be ordered
to serve all or at least part of his sentences concurrently with each other.
Crumble accepted the plea agreement on November 14, 2003, and the trial court
sentenced him to forty-five years in the Department of Correction (DOC). The court
ordered that this sentence be served consecutively to “All Other Cases in Any County.”
6 Tr. App. p. 121. Before sentencing, Crumble’s probation had been revoked, and Crumble
had been ordered to serve the remainder of his six-year suspended sentence.
Crumble received a seventy-year sentence in FB-277965 and a concurrent twenty-
year term in FB-291718. In FC-300787, Crumble received eight years in the DOC, and
his Bartholomew County charge had not been resolved.
Crumble appealed, and on May 5, 2004, a panel of this Court unanimously
affirmed his forty-five-year sentence but remanded with instructions to the trial court to
clarify whether the sentence for this offense would have to be served consecutively to any
sentence imposed in the Bartholomew County case. Coleman v. State, No. 32A04-0401-
CR-56, memo op. at 10 (Ind. Ct. App. 2004).
On February 5, 2010, Crumble filed a petition for post-conviction relief (PCR).
As later amended, the petition claimed that Crumble received ineffective assistance of
counsel and had entered into an involuntary guilty plea because Smith had not advised
him that his habitual-offender enhancement in this case could not be served consecutively
to the habitual-offender enhancement pending in Marion County. The State answered,
denying Crumble’s allegations and raising the affirmative defenses of laches, waiver, and
res judicata.
The PCR court heard evidence on August 23, 2012. Crumble testified that Smith
had “not really” discussed sentencing outcomes, but “just made me feel like uh, by him
saying that I should take a plea that I could probably end up with more time then [sic]
what I had.” PCR Tr. p. 13. Crumble stated that Smith had reviewed the plea agreement
7 and told him that he should take the plea and that Smith thought he could get a concurrent
sentence. Crumble’s PCR counsel explained to Crumble that he had calculated a total
sentence of “111 years, which would be each sentence, each charge maxed and
consecutive” and asked Crumble if he would have pleaded guilty if he had been told that
it was impossible for him to have received such a sentence. Id. at 15. Crumble
responded that he would not have pleaded guilty under those circumstances.
The PCR court also heard testimony from Detective Stoops, who had investigated
the robbery and prepared the affidavit of probable cause. Detective Stoops testified that
most of the evidence collected had been placed into storage with the Avon Police
Department and destroyed pursuant to departmental policies after the case had concluded.
The only remaining pieces of evidence were several photographs of the outside of the
Speedway, the stolen cigarette cartons, and Kennedy’s injuries. These photographs had
not been destroyed, because they had been admitted into evidence at Crumble’s
sentencing hearing.
Carin Swalley, an investigator with the Hendricks County Prosecutor’s Office,
stated that she had tried to locate Sandy Hurt by contacting the Indianapolis Metropolitan
Police Department (IMPD), but Hurt was no longer employed with the IMPD. Swalley
also attempted to contact Larry Piper at his last known address without success.
On October 8, 2012, the PCR court issued its findings of fact and conclusions of
law in its order denying Crumble’s petition for post-conviction relief. Specifically, the
PCR court determined that Smith had not misadvised Crumble because whether habitual
8 offender enhancements imposed in two different counties could be served consecutively
was an unsettled question when Crumble pleaded guilty. Moreover, the PCR court
opined that even assuming that Smith had misadvised Crumble on this issue, Smith had
advised Crumble that any sentence that he received in Hendricks County could be served
concurrently with his sentences in Marion County. Indeed, Smith had hoped that because
Crumble was pleading guilty, the trial court would impose concurrent terms.
The PCR court further determined that Crumble’s testimony amounted to “self-
serving, uncorroborated statements” that were insufficient to prove his case. PCR App.
p. 109. The PCR court also concluded that “an objective, reasonable defendant would
have accepted the plea in hopes of getting a concurrent sentence, independent of any
advice received regarding the habitual offender or lesser charges.” Id. at 110. Finally,
the PCR court determined that Crumble’s petition was barred by laches due to the
destruction of the State’s physical evidence and an inability to locate key witnesses.
Crumble now appeals.
DISCUSSION AND DECISION
I. Standard of Review
Because post-conviction proceedings are civil proceedings, the petitioner bears the
burden of establishing grounds for relief by a preponderance of the evidence. Ben-
Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000); see also Ind. Post-Conviction Rule
1(5). Because the PCR court denied relief, Crumble is appealing from a negative
judgment and faces the rigorous burden of showing “that the evidence as a whole leads
9 unerringly and unmistakably to a conclusion opposite to that reached by the [PCR]
court.” Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).
Post-conviction proceedings do not offer a super-appeal. Wilkes v. State, 984
N.E.2d 1236, 1240 (Ind. 2013). Rather, post-conviction challenges are reserved for those
issues not known at the time of trial or not available on direct appeal. Id.
II. Ineffective Assistance of Trial Counsel
Crumble argues that his trial counsel, Smith, was ineffective for failing to properly
advise him regarding the sentence that could actually be imposed. More particularly,
Crumble contends that Smith was ineffective for not informing him that consecutive
habitual offender enhancements are illegal and that there were double jeopardy violations
in the charges against him.
When evaluating a claim of ineffective assistance of counsel, we apply the two-
part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Pinkins v. State,
799 N.E.2d 1079, 1093 (Ind. Ct. App. 2003). First, the petitioner must show that
counsel’s performance was deficient. Strickland, 466 U.S. at 687. This requires a
showing that counsel’s representation fell below an objective standard of reasonableness
and that the errors were so serious that they resulted in a denial of the right to counsel
guaranteed to the defendant by the Sixth and Fourteenth Amendments. Id. Second, the
petitioner must show that the deficient performance resulted in prejudice. Id. To
establish prejudice, a defendant must show that there is a reasonable probability that but
for counsel’s unprofessional errors, the result of the proceeding would have been
10 different. Id. at 694. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id. If a claim of ineffective assistance can be disposed of by
analyzing the prejudice prong alone, we will do so. Wentz v. State, 766 N.E.2d 351, 360
(Ind. 2002).
Here, Smith did not testify that he advised Crumble that he was facing consecutive
habitual offender enhancements. To the contrary, Smith testified that his strategy was to
convince the trial court to run Crumble’s sentence concurrently with his Marion County
sentences. PCR Tr. p 7-8. And Crumble’s self-serving, uncorroborated statements are
insufficient to overcome his burden of proving ineffective assistance of counsel. Graham
v. State, 941 N.E.2d 1091, 1103 (Ind. Ct. App. 2011).
As for the asserted double jeopardy violations, Smith testified that it was a normal
part of his practice to review charges for double jeopardy issues and that he had probably
done so in Crumble’s case. PCR Tr. p. 6. In light of this testimony and the strong
presumption that counsel rendered adequate assistance, this argument must also fail. See
Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001).
III. Involuntary Guilty Plea
In a related argument, Crumble argues that because he relied on Smith’s incorrect
advice, his guilty plea was not knowing, intelligent, and voluntary. Whether a guilty plea
is entered into voluntarily is dependent upon whether the defendant knowingly and freely
entered into the plea. Cornelious v. State, 846 N.E.2d 354, 358 (Ind. Ct. App. 2006).
A guilty plea that was motivated by an improper threat is deemed illusory and a
11 denial of substantive rights. Daniels v. State, 531 N.E.2d 1173, 1174 (Ind. 1988). And
an illusory plea is not a voluntary plea. Reeves v. State, 564 N.E.2d 550, 553 (Ind. Ct.
App. 1991).
Nevertheless, a petitioner is not entitled to relief by simply testifying that he would
not have entered into the guilty plea. Springer v. State, 952 N.E.2d 799, 806 (Ind. Ct.
App. 2011), trans. denied. Rather, to prove prejudice from counsel’s omission or
mistaken advice as to the penal consequences, the petitioner must allege objective facts
that support the conclusion that the decision to plead guilty was motivated by the
erroneous advice. Id. Put another way, there must be a reasonable probability that but
for counsel’s errors, the petitioner would not have pleaded guilty and would have
proceeded to trial. Id.
Again, Crumble asserts that “he was misadvised as to the amount of time he was
facing.” Appellant’s Br. p. 14. Much like Crumble’s arguments that Smith was
ineffective, these statements are merely self-serving and uncorroborated.
As stated above, Smith’s strategy was for Crumble to plead guilty and to argue for
concurrent sentences so that Crumble would have some kind of life after incarceration.
PCR Tr. p. 10. In making this decision, Smith reviewed the evidence against Crumble,
including the surveillance video, eyewitness identifications, and the stolen property
recovered from Crumble’s vehicle. Id. at 7.
Indeed, Crumble received a benefit from pleading guilty even if it was small.
Smith’s strategy was successful, inasmuch as it reduced Crumble’s sentence by five
12 years. And the fact that Smith’s strategy was not as successful as Crumble or even Smith
had hoped does not render Crumble’s guilty plea involuntary. Under these facts and
circumstances, we cannot conclude that the PCR court erred when it concluded that “an
objective, reasonable defendant would have accepted the plea in hopes of getting a
concurrent sentence, independent of any advice received regarding the habitual offender
enhancement or lesser charges.” PCR App. p. 110. Accordingly, Crumble has failed to
convince us that his guilty plea was not voluntary, knowing, and intelligent.
IV. Laches
Finally, Crumble maintains that the PCR court erred by determining that the State
proved its laches defense by a preponderance of the evidence. This Court will affirm the
PCR court unless its judgment was clearly erroneous. Armstrong v. State, 747 N.E.2d
1119, 1120 (Ind. 2001).
To establish the defense of laches, there are two elements that must be proved.
First, the petitioner delayed seeking relief, and second, the State was prejudiced by the
delay. Perry v. State, 512 N.E.2d 841, 843 (Ind. 1987). A petitioner’s knowledge of the
means for relief and unreasonable delay may be inferred from circumstantial evidence
such as “[r]epeated contacts with the criminal justice system, consultation with attorneys
and incarceration in a penal institution with legal facilities . . . .” Id. at 845. “[P]rejudice
exists when the unreasonable delay operates to materially diminish a reasonable
likelihood of successful re-prosecution.” Kirby v. State, 822 N.E.2d 1097, 1100 (Ind. Ct.
App. 2005).
13 In this case, Crumble pleaded guilty on November 14, 2003. Tr. App. p. 87.
Crumble’s sentence was affirmed on May 5, 2004. Coleman, memo op. at 1. Further,
Crumble had a lengthy history with the criminal justice system before he pleaded guilty
in this case. Tr. App. p. 96. And, on June 16, 2004, Crumble filed a PCR petition in FB-
277965. During that time, Crumble consulted with at least two attorneys: Smith and his
counsel representing him in his PCR proceedings. Still, Crumble waited over five years,
until February 5, 2010, to seek post-conviction relief in this case.
Furthermore, most of the physical evidence has been destroyed. PCR Tr. p. 17-18.
For example, if Crumble was re-prosecuted, the State would not be able to introduce the
surveillance tape, which fully depicted Crumble’s robbery and numerous blows to
Kennedy’s face. Id. Additionally, the State could not introduce the cartons of labeled
cigarettes that Crumble had stolen or the knife found in his vehicle. Id. Even the
fingerprint evidence would be unavailable. Id.
Moreover, Hurt, who made the fingerprint comparison, is no longer employed by
the IMPD. Id. at 20. Likewise, Piper, the eyewitness who saw Crumble flee from the
Speedway after the robbery could not be located. Id. at 21. At best, the State’s case
would be confined to the photographs of the cigarettes and the knife. Id. at 17-18. Under
these circumstances, we cannot say that the PCR court’s conclusion that there was
unreasonable delay and resulting prejudice was clearly erroneous and not supported by
substantial evidence. Therefore, this argument also fails.
14 The judgment of the PCR court is affirmed.
MAY, J., and MATHIAS, J., concur.