Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Aug 22 2014, 8:58 am
any 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
BORAHM KIM ANGELA N. SANCHEZ
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis,Indiana
IN THE
COURT OF APPEALS OF INDIANA
COREY A. CRAIG, )
)
Appellant-Petitioner, )
)
vs. ) No. 48A04-1311-PC-568
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Angela Warner Sims, Judge
Cause No. 48C01-1008-PC-308
August 22, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
SHARPNACK, Senior Judge
STATEMENT OF THE CASE
Corey A. Craig appeals from the post-conviction court’s order denying his petition
for post-conviction relief, contending that his trial counsel was ineffective and that he was
prejudiced by that inadequate representation. We affirm.
ISSUES
Craig presents the following issues for our review:
I. Whether there was a sufficient factual basis for his plea of guilty to
intimidation as a Class C felony;
II. Whether his guilty plea was knowingly, intelligently, and voluntarily made;
and
III. Whether the post-conviction court erred by denying Craig’s petition for post-
conviction relief alleging ineffective assistance of trial counsel.
FACTS AND PROCEDURAL HISTORY
Without the benefit of a plea agreement, Craig pleaded guilty to child molesting1 as
a Class A felony, criminal confinement2 as a Class B felony, and intimidation3 as a Class
C felony. The facts set forth in our memorandum opinion affirming Craig’s sentence on
direct appeal are as follows:
On March 8, 2004, officers from the Anderson Police Department
were dispatched to Saint John’s Hospital in reference to a six-year-old child,
F.N., being treated for vaginal injuries. F.N. had been taken to the hospital
with injuries and bleeding to her vaginal area. These injuries required
emergency surgery. Initial information revealed F.N. was home with Craig
and Darrel Gene Bradberry and received a straddle-type injury while playing
with Craig and Bradberry. After the emergency surgery, the cut was found
1
Ind. Code § 35-42-4-3(a)(2) (1998).
2
Ind. Code § 35-42-3-3(b)(2)(A) (2002).
3
Ind. Code § 35-45-2-1(b)(2)(A) (2003).
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to be larger than doctors originally believed. Further, F.N.’s doctors
indicated to police that the injuries were not consistent with a straddle-type
injury, but, rather, more consistent with a cutting-type injury.
F.N. was interviewed. She initially gave an account consistent with
the reported straddle-type injury. Upon further inquiry, however, she
indicated that Craig and Bradberry had held her down at the house while both
of them had a knife and one of them had a fork. While restraining the child,
the young men proceeded to insert a knife and fork into her vagina causing
her injury and bleeding. They then threatened F.N. that if she said anything
about what had happened they would put her in a large grill that was outside
the residence and feed her to a large dog that was at the residence.
Craig v. State, No. 48A02-0511-CR-1030, slip op. at 2-3 (Ind. Ct. App. April 28, 2006).
The trial court sentenced Craig to the presumptive sentence for each of the offenses: thirty
years, ten years, and four years, respectively. The trial court ordered the sentences for child
molesting and criminal confinement to be served concurrently, and ordered the sentence
for intimidation to be served consecutively to the sentence for child molesting, for an
aggregate sentence of thirty-four years.
After his sentence was affirmed on direct appeal, Craig filed a pro se petition for
post-conviction relief that was later amended by counsel on January 29, 2013. The post-
conviction court held a hearing on the petition after which it issued findings of fact and
conclusions thereon denying Craig’s petition. Craig now appeals.
DISCUSSION AND DECISION
Craig appeals from the post-conviction court’s denial of his petition for post-
conviction relief. “A petitioner who has been denied post-conviction relief faces a rigorous
standard of review” on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001). The post-
conviction court’s denial of relief will be affirmed unless the petitioner shows that the
evidence “leads unerringly and unmistakably to a decision opposite that reached by the
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post-conviction court.” Rowe v. State, 915 N.E.2d 561, 564 (Ind. Ct. App. 2009), trans.
denied. A petitioner has the burden of establishing the grounds for relief by a
preponderance of the evidence. Indiana Post-Conviction Rule 1(5). Accordingly, a
petitioner appeals from a negative judgment. Ritchie v. State, 875 N.E.2d 706, 714 (Ind.
2007).
This court will not disturb the denial of relief unless the evidence is without conflict
and leads to but one conclusion, and the post-conviction court reached the opposite
conclusion. Carter v. State, 738 N.E.2d 665, 671 (Ind. 2000). Furthermore, this court
accepts the post-conviction court’s findings of fact unless they are clearly erroneous.
Bigler v. State, 732 N.E.2d 191, 194 (Ind. Ct. App. 2000), trans. denied. We consider only
the probative evidence and reasonable inferences therefrom that support the post-
conviction court’s determination, and we will not reweigh the evidence or judge witness
credibility. Id.
In general, claims of ineffective assistance of counsel are reviewed under a two-part
test: (1) a demonstration that counsel’s performance fell below an objective standard of
reasonableness based on prevailing professional norms, and (2) a showing that the deficient
performance resulted in prejudice to the defendant. Grinstead v. State, 845 N.E.2d 1027,
1031 (Ind. 2006) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984)). Prejudice occurs when the defendant demonstrates that there is
a reasonable probability that, if not for counsel’s unprofessional errors, the result of the
proceeding would have been different. Grinstead, 845 N.E.2d at 1031. A reasonable
probability occurs when there is a probability sufficient to undermine confidence in the
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outcome. Id. Failure to satisfy either prong of the two-part test will cause the defendant’s
claim to fail. Henley v. State, 881 N.E.2d 639, 645 (Ind. 2008). If we can easily dispose
of an ineffective assistance claim based upon the prejudice prong, we may do so without
addressing whether counsel’s performance was deficient. Id.
Each of Craig’s arguments originate from the difference between the statutory
enhancement language describing the elevated offense of intimidation as a Class C felony
and the language used in the charging information. Craig contends that had the charging
information language tracked the language of the intimidation statute, he would not have
pleaded guilty. Further, he claims that he could not be found guilty of intimidation as a
Class C felony because of the defective wording of the charge and that there was no factual
basis that he drew or used a fork or knife while intimidating F.N.
I. ADEQUACY OF THE FACTUAL BASIS
The version of the statute at the time of Craig’s offenses provides in pertinent part
as follows:
A person who communicates a threat to another person, with the intent: that
the other person engage in conduct against the other person’s will; commits
intimidation, a Class A misdemeanor. However, the offense is a: Class C
felony if, while committing it, the person draws or uses a deadly weapon.
Ind. Code § 35-45-2-1. Count III of the charging information against Craig alleged that he
had committed Class C felony intimidation by communicating “a threat to [F.N.] while
armed with a deadly weapon, to wit: a knife and/or fork, with the intent that [F.N.] engage
in conduct against her will, to wit: not to report a sexual assault.” Direct Appeal App. p.
25. Craig argues that the difference between “draws or uses a deadly weapon” and “while
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armed with a deadly weapon” is significant enough that his decision to plead guilty was
compromised because of his trial counsel’s failure to note the defect.
The factual basis set forth by the State at Craig’s guilty plea hearing was as follows:
More specifically, the State would present evidence to show that on March
8th of 2004, officers from the Anderson Police Department were dispatched
to Saint John’s Hospital reference a six-year-old child being treated for a
vaginal injuries [sic]. Upon arrival the hospital staff indicated that [F.N.],
date of birth 8-28 of ’97 had . . . she had been taken to the hospital with
injuries and bleeding to her vagina area. Upon observation by doctors, it was
determined that there was a cut in her vaginal area. These injuries required
emergency surgery which was performed by a Doctor Gist. . . . The
information given at the hospital and initially to the police were [sic] that
[F.N.] was at the residence of 2121 Hendricks Street which was her home in
Anderson, Madison County, Indiana. And at the time of the injuries she was
home alone with the defendant, Corey A. Craig and a [D.B.] The information
initially received was that the . . . Mr. Craig and [D.B.] were playing with
[F.N.] and that she had injured her vaginal [sic] in a straddle-type injury,
either at one point by pulling her legs a part and another point of the story
was that she had fallen over a couch. After the emergency surgery was
performed, the cut was larger than what they believed to begin with. Both
the E.R. physician, Dr. Hanna and the surgeon, Dr. Gist, indicated to police
that the injuries were not consistent with a straddle-type injury and that it was
more consistent with a cutting type injury. [F.N. was interviewed. Initially
she gave the same story that it was a straddle-type injury. However, upon
interviewing her further, she did indicate that the defendants Corey A. Craig
and [D.B.] had her held . . . held her down at the house and that both of them
had a knife and one had a fork. Had inserted the knife and the fork into her
vagina causing her injury and bleeding. She also indicated that the two
individuals had threatened her that if she told about what had happened they
had indicated that one, they would put her in a large grill that was outside the
residence and they also indicated that they would feed her to a large dog that
was at the residence. She was held down during this time when she was hurt
while they had a knife and fork that injured her and her vagina, against her
will. All these events occurred here in Madison County, State of Indiana.
Direct Appeal Tr. pp. 14-16 (emphasis added). After the factual basis was recited, Craig
indicated that he had heard the prosecutor’s statements and that they were true. All parties
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stated that they were satisfied with the factual basis and the trial court accepted Craig’s
guilty plea.
The post-conviction court took judicial notice of the prior proceedings and the
filings, pleadings, and record in the case. Included among those items is the probable cause
affidavit supporting the charges filed against Craig. The probable cause affidavit provided
as follows:
On 3/8/04, APD officers were dispatched to St. John’s Hospital at 2015
Jackson St. reference a 6 year old child, [F.N.], being treated for vaginal
injuries not consistent with those of an accident. These injuries required
emergency surgery, which was performed by Dr. Gist. Both the ER
physician, Dr. Hanna, and the surgeon, Dr. Gist, felt these injuries were not
the result of an accident. The persons acting as caregiver to the child at the
time of her injuries were Corey A[.] Craig and Darrel Gene Bradberry. The
day following the victim’s surgery, she gave a video statement in which she
advised that Corey Craig and Darrel Bradberry held her down and inserted a
knife and fork into her vagina and threatened her with physical harm if she
told anyone of the incident. The insertion of the foreign objects into her
vagina caused pain and bleeding. Both suspects took steps to conceal the
results of their actions. Both initially advised that the victim’s injuries had
occurred while engaging in play, however Darrell [sic] Bradberry later
provided a videotaped statement acknowledging that the acts had occurred,
but that he was only an observer.
Corey Alan Craig & Darrel Gene Bradberry, with a child under 14 years of
age, performed deviate sexual conduct resulting in serious bodily injury by
inserting foreign objects into the vagina of a 6 year old girl causing such
injury as to require surgery. Corey Alan Craig & Darrel Gene Bradberry
knowingly and intentionally confined the aforementioned victim by holding
her down with her arms crossed on her chest and her legs pinned towards her
head and refusing to allow her to leave during the assault. Both subjects
threatened physical bodily harm to the victim and told her she would be taken
from her mother if she told anyone. The threats were made while the subjects
were holding the knife and fork, which could be perceived as deadly
weapons.
Direct Appeal App. p. 23 (emphasis added).
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During the hearing on Craig’s petition for post-conviction relief, Craig’s trial
counsel, Zaki Ali, testified that he did not realize that the wording of the statute defining
the offense differed from the language used in the charging information. He further stated
that his failure to challenge the defect was not part of a strategic decision. On cross
examination, however, he testified as follows with respect to the factual basis that the knife
and fork were drawn or used:
I want to go back to your question earlier, if I may, and mention that, is there
a difference between draws and uses? Yes. Um, draw would mean to flash,
to show, to demonstrate. To use would actually, to put to use. In this case,
um, it wasn’t drawn, it was actually used. The utensils. . . . I think they were
shown and they were probably flashed.
Tr. p. 12. Thus, despite the defect, even Craig’s trial counsel appeared to agree that the
facts of the case fit within the statutory definition of the offense.
In an opinion on rehearing in Hall v. State, 837 N.E.2d 159 (Ind. Ct. App. 2005), a
panel of this Court found that there was sufficient evidence to support a conviction for
intimidation as a Class C felony where the issue involved whether the defendant was in
actual possession of a weapon at the time the threat was communicated. We relied on our
Supreme Court’s opinion in Davis v. State, 477 N.E.2d 889 (Ind. 1985), analyzing the use
of the term “while” in the context of a murder eligible for the death penalty because it was
committed while committing the underlying felony of child molesting. We set forth the
following analysis from Davis:
Although we have not previously considered [the word “while”] as it is used
in the death penalty statute, we have repeatedly found that the phrase “while
committing” denotes a continuing chain of events under our felony-murder
statute. In other words, when there is a close proximity in terms of time and
distance between the underlying felony and the homicide and there is no
8
break in the chain of events from the inception of the felony to the time of
the homicide, we treat the two events as part of one continuous transaction.
Hall, 837 N.E.2d at 160 (quoting Davis, 477 N.E.2d at 894).
Here, the factual basis clearly establishes the proximity in time and distance between
the child molesting and confinement involving the use of the knife and the fork and the
threat to put her on a large grill and feed her to a large dog at her home if she told anyone
about the incident. The probable cause affidavit supports a finding that the knife and fork
were in hand at the time the threat was made. Nonetheless, it is clear that they were used
at least immediately prior to the making of the threatening statements. Although the threat
did not specifically refer to the knife and the fork, their presence and prior use would at the
least make F.N. think that they would be used again. We cannot say that Craig has met his
burden of showing that the evidence is without conflict and leads to but one conclusion,
and the post-conviction court reached the opposite conclusion. The factual basis is
adequate to support the conviction despite the defect in the charging information.
II. GUILTY PLEA
Craig also argues that his guilty plea was not knowingly, intelligently, and
voluntarily made because he was misled by the State about the nature of the intimidation
charge. He claims that the language in the charging information did not specifically advise
him that a deadly weapon had to be drawn or used in order to enhance the offense to a
Class C felony.
Indiana Code section 35-35-1-2(a)(1) (2003) provides that a trial court “shall not
accept a plea of guilty or guilty but mentally ill at the time of the crime without first
9
determining that the defendant understands the nature of the charge against him.” A guilty
plea is not “voluntary in the sense that it constituted an intelligent admission that he
committed the offense unless the defendant received ‘real notice of the true nature of the
charge against him, the first and most universally recognized requirement of due process.’”
Henderson v. Morgan, 426 U.S. 637, 645, 96 S. Ct. 2253, 2257-58, 49 L. Ed. 2d 108 (1976)
(quoting Smith v. O’Grady, 312 U.S. 329, 334, 61 S. Ct. 572, 574, 85 L. Ed. 859 (1941)).
Our Supreme Court has held that unless an element of the offense is a critical element of
the offense, such as specific intent to kill is to the offense of attempted murder, notice of
the elements of the offense is not required in order to satisfy Henderson’s requirement of
notice of the true nature of the charge. Patton v. State, 810 N.E.2d 690, 697 (Ind. 2004).
What is required under Henderson is that (1) a defendant have real notice of the true nature
of the charge to which he pleads guilty, (2) the record of the guilty plea hearing contains
an explanation of the charge by the trial court or a representation by trial counsel that the
nature of the offense has been explained to the defendant, or absent an explanation a
presumption that trial counsel routinely explains the nature of the offense sufficiently to
give notice to the accused, (3) where intent is a critical element of the offense, notice of
the element is required, and (4) even where required notice has not been given nor can it
be presumed, that lack of notice is subject to analysis for harmless error. Id. at 696.
Unlike specific intent in the context of attempted murder charges, the difference
between committing an offense while armed with a deadly weapon and while drawing or
using that deadly weapon is not so significant as to be a critical element of the offense. The
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trial court read the charging information and confirmed that Craig understood the charge.
The trial court further advised Craig as follows:
So in order to be guilty of [intimidation] the State would have to prove on or
about March the 8th you had done these things to little [F.N.] and you told
her if she told anybody you were gonna hurt her or something like that. Do
you understand . . . and plus you had this knife and fork or I don’t know
which one you had. Maybe it’s both. Maybe it’s one or the other. Do you
understand what I’m telling you?
Direct Appeal Tr. pp. 8-9. Craig responded that he understood. During the hearing on
Craig’s petition, Ali testified that in addition to the factual basis set forth by the State, Ali
and Craig went through the facts of the case and reviewed the discovery provided by the
State indicating what evidence supported the charges. Craig has not met his burden of
establishing that the post-conviction court erred by concluding that Craig’s guilty plea was
entered into knowingly, intelligently, and voluntarily.
II. INEFFECTIVE ASSISTANCE
Craig raises a claim of ineffective assistance of counsel, arguing that his trial
counsel’s failure to advise him of the defective wording of the intimidation charge
prejudiced him.
When considering a claim of ineffective assistance of counsel, a “strong
presumption arises that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.”
Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). Evidence of isolated
poor strategy, inexperience, or bad tactics will not support a claim of
ineffective assistance of counsel. Clark v. State, 668 N.E.2d 1206, 1211 (Ind.
1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S. Ct. 1438, 137 L. Ed.
2d 545 (1997). As a result, most ineffective assistance claims can be resolved
by a prejudice inquiry alone. Williams v. State, 706 N.E.2d 149, 154 (Ind.
1999), reh’g denied, cert. denied, 529 U.S. 1113, 120 S. Ct. 1970, 146 L. Ed.
2d 800 (2000). Moreover, if a petitioner is convicted pursuant to a guilty
plea, and later claims that his counsel rendered ineffective assistance because
11
counsel overlooked or impaired a defense, the petitioner must show that a
defense was indeed overlooked or impaired and that the defense would have
likely changed the outcome of the proceeding. Segura v. State, 749 N.E.2d
496, 499 (Ind. 2001).
Richardson v. State, 800 N.E.2d 639, 646 (Ind. Ct. App. 2003), trans. denied.
Here, Craig’s argument is not that he would have insisted on proceeding to trial on
the intimidation charge had he known about the defect. Rather, he argues that had his
counsel advised him of the defective wording of the charge, he could only have been
convicted of intimidation as a Class D felony. We disagree.
We have already concluded that the factual basis for intimidation as a Class C felony
was adequate to support Craig’s guilty plea. Therefore, Craig cannot establish prejudice
from his trial counsel’s failure to notice the defect and advise him. Furthermore, if Craig’s
trial counsel noticed the defect and brought that to the attention of the State or the trial
court, there is every reason to believe that the State would have corrected the information
to comport with the statutory language. Craig has not established that the post-conviction
court erred by finding and concluding that Craig was not prejudiced by his trial counsel’s
representation.
CONCLUSION
In light of the above, we affirm the post-conviction court’s decision.
Affirmed.
RILEY, J., and BARNES, J., concur.
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