Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Sep 03 2013, 5:30 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
VINCENT M. CAMPITI GREGORY F. ZOELLER
Nemeth Feeney Masters & Campiti Attorney General of Indiana
South Bend, Indiana
GARY R. ROM
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROBERT J. WININGS, )
)
Appellant-Petitioner, )
)
vs. ) No. 20A03-1301-PC-26
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable George W. Biddlecome, Judge
Cause Nos. 20D03-1201-PC-4, 20D03-1201-PC-5
September 3, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
Appellant-Petitioner Robert J. Winings pled guilty to and was convicted of Class B
felony dealing in methamphetamine and Class A felony dealing in methamphetamine within
1000 feet of a school. Winings sought post-conviction relief (“PCR”), arguing that the
factual basis was insufficient to support his guilty plea for the Class A felony conviction.
Winings also argues that he received ineffective assistance of trial counsel. Winings now
appeals from the denial of his PCR petition. Concluding that Winings waived his challenge
to the sufficiency of the factual basis to sustain his Class A felony conviction by failing to
include the relevant documents in the record on appeal, and that Winings did not receive
ineffective assistance of trial counsel, we affirm.
FACTS AND PROCEDURAL HISTORY1
On or about November 16, 2007, the State charged Winings under Cause Number
20D03-0711-FA-73 (“Cause No. FA-73”) with Class A felony dealing in methamphetamine
and Class D felony possession of chemical reagents or precursors with the intent to
manufacture controlled substances. The charges included in Cause No. FA-73 arose from
incidents that occurred at Winings’s residence on November 13, 2007. David W. Newman
served as defense counsel for Winings in the criminal proceedings that related to Cause No.
FA-73.
On May 23, 2008, Winings was arrested after officers discovered an active
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Winings did not include numerous relevant documents in his submissions on appeal. As a result,
some of the facts relating to the underlying criminal proceedings are derived from the post-conviction court’s
order denying Winings’s request for relief and the probable cause affidavit relating to Cause Number 20D03-
0805-FA-34.
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methamphetamine lab in the back of his pick-up truck during a traffic stop. The lab emitted a
strong smell of ammonia. The traffic stop occurred within 1000 feet of York Elementary
School. During the traffic stop, Winings’s passenger admitted to the officers that she and
Winings had been manufacturing methamphetamine and that she was hiding
methamphetamine in her private region. On or about May 23, 2008, the State charged
Winings under Cause Number 20D03-0805-FA-34 (“Cause No. FA-34”) with Class A felony
dealing in methamphetamine within 1000 feet of a school. Newman also served as defense
counsel for Winings in the criminal proceedings that related to Cause No. FA-34.2
On March 19, 2009, Winings pled guilty to Class B felony dealing in
methamphetamine under Cause No. FA-73 and Class A felony dealing in methamphetamine
within 1000 feet of a school under Cause No. FA-34. In exchange for Winings’s plea, the
State agreed to dismiss an unrelated Class D felony charge and agreed that the executed
portion of Winings’s sentence would be capped at forty years.3 On April 23, 2009, Winings
was sentenced pursuant to the terms of the plea agreement.4 Winings did not file a direct
appeal.
On December 30, 2011, Winings, by counsel, filed a PCR petition. The post-
conviction court conducted evidentiary hearings on Winings’s PCR petition on May 30,
2
Newman also represented Winings in an unrelated third criminal case.
3
Winings’s sentences were required to be served consecutively because Winings committed the
offense charged in Cause No. FA-34 while out on bond in Cause No. FA-74.
4
Winings’s sentence included five years of probation in addition to the forty-year executed sentence.
3
2012, and July 19, 2012. During these hearings, Winings, by counsel, presented argument in
support of his petition. Newman also testified about his representation of Winings during the
trial court proceedings. On December 28, 2012, the post-conviction court issued an order
denying Winings’s request for PCR. This appeal follows.
DISCUSSION AND DECISION
Post-conviction procedures do not afford the petitioner with a super-appeal. Williams
v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a narrow remedy for
subsequent collateral challenges to convictions, challenges which must be based on grounds
enumerated in the post-conviction rules. Id. A petitioner who has been denied PCR appeals
from a negative judgment and as a result, faces a rigorous standard of review on appeal.
Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001); Collier v. State, 715 N.E.2d 940, 942 (Ind.
Ct. App. 1999), trans. denied.
Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745
(Ind. 2002). Therefore, in order to prevail, a petitioner must establish his claims by a
preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 745.
When appealing from the denial of a PCR petition, a petitioner must convince this court that
the evidence, taken as a whole, “leads unmistakably to a conclusion opposite that reached by
the post-conviction court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is
without conflict and leads to but one conclusion, and the post-conviction court has reached
the opposite conclusion, that its decision will be disturbed as contrary to law.” Godby v.
State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied. The post-conviction court is
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the sole judge of the weight of the evidence and the credibility of the witnesses. Fisher v.
State, 810 N.E.2d 674, 679 (Ind. 2004). We therefore accept the post-conviction court’s
findings of fact unless they are clearly erroneous but give no deference to its conclusions of
law. Id.
I. Sufficiency of Evidence to Support Factual Basis
Winings argues on appeal that the post-conviction court erroneously denied his PCR
petition because the factual basis presented during the guilty plea hearing was insufficient to
sustain his conviction for Class A felony dealing in methamphetamine within 1000 feet of a
school.
A court may not accept a guilty plea unless the court determines that a
sufficient factual basis exists to support the plea. Rhoades v. State, 675 N.E.2d
698, 700 (Ind. 1996) (citing Ind. Code § 35-35-1-3). A factual basis may be
established by relatively minimal evidence about the elements of the crime
from which the court could reasonably conclude that the defendant is guilty.
Id. A trial court’s finding of an adequate factual basis is presumptively
correct. Id. Additionally, the standard for a sufficient factual basis to support
a guilty plea is less rigorous than that required to support a conviction. Id. at
702. “Reasonably concluding” that a defendant is guilty for purposes of a
factual basis is not the same as concluding guilt beyond a reasonable doubt.
Id.
Graham v. State, 941 N.E.2d 1091, 1098 (Ind. Ct. App. 2011). “On appeal from the denial of
a petition for post-conviction relief, the burden is on the petitioner to provide a record
adequate for review.” Lile v. State, 671 N.E.2d 1190, 1193 (Ind. Ct. App. 1996). “Failure to
do so has been found to be grounds for waiver of any alleged error based upon the absent
material.” Cox v. State, 475 N.E.2d 664, 667 (Ind. 1985) (noting that a criminal defendant
has a duty to provide a proper record for appeal so that an intelligent review of the issues may
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be made).
In the instant matter, our review of Winings’s claim regarding the sufficiency of the
factual basis to sustain his Class A felony conviction is frustrated by Winings’s failure to
include the transcript of the guilty plea hearing or the plea itself in the record on appeal.
Winings does not claim that either the transcript or a copy of the plea was unavailable for
submission to this court on appeal. In addition, the post-conviction court did not make any
findings specifically relating to the testimony which made up the factual basis during the
guilty plea hearing. As such, we are unable to review Winings’s claim regarding the
sufficiency of the factual basis to sustain his guilty plea and Class A felony conviction.
Because Winings had the burden to provide the court with an adequate record for review, and
Winings has failed to do so, we conclude that Winings has waived this argument on appeal.
See Cox, 475 N.E.2d at 667; Lile, 671 N.E.2d at 1193.
II. Ineffective Assistance of Counsel
The right to effective counsel is rooted in the Sixth Amendment to the United States
Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The Sixth Amendment
recognizes the right to the assistance of counsel because it envisions counsel’s playing a role
that is critical to the ability of the adversarial system to produce just results.’” Id. (quoting
Strickland v. Washington, 466 U.S. 668, 685 (1984)). “The benchmark for judging any claim
of ineffectiveness must be whether counsel’s conduct so undermined the proper function of
the adversarial process that the trial court cannot be relied on as having produced a just
result.” Strickland, 466 U.S. at 686.
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A successful claim for ineffective assistance of counsel must satisfy two components.
Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first prong, the petitioner must
establish that counsel’s performance was deficient by demonstrating that counsel’s
representation “fell below an objective standard of reasonableness, committing errors so
serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
Id. We recognize that even the finest, most experienced criminal defense attorneys may not
agree on the ideal strategy or most effective way to represent a client and therefore, under
this prong, we will assume that counsel performed adequately and defer to counsel’s strategic
and tactical decisions. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). Isolated mistakes,
poor strategy, inexperience, and instances of bad judgment do not necessarily render
representation ineffective. Id.
Under the second prong, the petitioner must show that the deficient performance
resulted in prejudice. Reed, 866 N.E.2d at 769. A petitioner may show prejudice by
demonstrating that there is “a reasonable probability (i.e. a probability sufficient to
undermine confidence in the outcome) that, but for counsel’s errors, the result of the
proceeding would have been different.” Id.
A petitioner’s failure to satisfy either prong will cause the ineffective assistance of
counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently, “[a]lthough the
two parts of the Strickland test are separate inquires, a claim may be disposed of on either
prong.” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (citing Williams, 706 N.E.2d
at 154).
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Winings challenges the post-conviction court’s determination that Newman was not
ineffective. Specifically, Winings claims that Newman was ineffective for failing to tell him
about certain statutorily-defined defenses that could have potentially been available to him in
Cause No. FA-34. Winings argues that he would not have pled guilty if Newman would have
informed him of the defenses, which he claims would have applied to his case.
Indiana Code section 35-48-4-1.1 provides that a person who knowingly or
intentionally manufactures, finances the manufacture of, delivers, or finances the delivery of
methamphetamine commits Class B felony dealing in methamphetamine. The offense is
elevated to a Class A felony if the act occurs within 1000 feet of a school. Ind. Code § 35-
48-4-1.1(b)(3)(B). Indiana Code subsections 35-48-4-16(b) and (c) provide that it is a
defense to the enhancement to a Class A felony if the individual was only within 1000 feet of
the school briefly, no person under the age of eighteen was present within 1000 feet of the
school, or the individual was only within 1000 feet of the school at the request or suggestion
of law enforcement. These defenses, however, apply only to the possession, delivery, or
financing the delivery of methamphetamine and do not apply to the manufacture of
methamphetamine. Ind. Code § 35-48-4-16(d).
Again, in the instant matter, Winings pled guilty to the elevated Class A felony. In
claiming that Newman was ineffective for failing to inform him of the defenses listed in
Indiana Code subsections 35-48-4-16(b) and (c), Winings argues that there were no children
present when he was pulled over in front of York Elementary, and that he was only in the
defined area briefly. Winings also argues that he was only present in the defined area at the
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request or suggestion of law enforcement.
During the evidentiary hearing, Newman testified that his general practice is to review
his cases to determine if there are any defenses that are available to his clients, and then to
discuss any potential defenses with said clients. Newman testified that he followed this
general practice with regard to Winings. Newman stated that he believed that he had
discussed all potentially available defenses with Winings, although he could not remember
talking to Winings specifically about Indiana Code subsections 35-48-4-16(b) and (c).
Newman also testified that he had discussed Winings’s potential defenses, including those
listed in Indiana Code subsections 35-48-4-16(b) and (c), with the deputy prosecutor assigned
to prosecute the charges levied against Winings.
Newman expressed concern about whether the defenses would have applied to
Winings’s case because the State could likely prove that, while there might not have been
children present at the school, there were children present within 1000 feet of the school at
the time Winings was pulled over. Newman also expressed concern about the applicability
of the defenses because it would be difficult, if not impossible, to prove at trial that Winings
was only in the area at the request or suggestion of law enforcement. Winings does not argue
that he could not have taken a different route that would not have passed the school when he
left the property, at which he had been manufacturing methamphetamine, in an attempt to
avoid getting caught by the police. In addition, Newman indicated that it was unclear
whether the defenses would have applied to Winings’s case because Winings was alleged to
have been manufacturing methamphetamine, not possessing, delivering, or financing the
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delivery of the drug.
Newman also outlined the other actions he took with regard to the specific charges
levied against Winings. Specifically, Newman testified that he met with Winings, either in
person or by telephone, on thirteen different occasions. Newman conducted discovery in all
three criminal matters, reviewed the discovered materials with Winings, and conducted
depositions. In Cause No. FA-34, Newman filed a motion to suppress the evidence
stemming from the traffic stop, which he indicated that he “candidly thought was our best
defense in the case.” Tr. p. 74. Newman discussed the potential penalties that Winings faced
if convicted of all charges and explained that the sentences were considered “mandatorily
consecutive” because Winings committed the criminal act alleged in Cause No. FA-34 while
out on bond for Cause No. FA-73. Tr. p. 64. Newman also negotiated a plea deal with the
State, which he believed represented the best possible outcome for Winings given the State’s
evidence against him.
Again, the record demonstrates that Newman conducted a thorough review of
Winings’s cases, including the possible penalties that Winings could face if convicted as well
as the possible defenses that Winings could raise at trial. Newman discussed the potential
penalties and defenses with Winings. Newman considered the applicability of the defenses
outlined in Indiana Code subsections 35-48-4-16(b) and (c), although he could not
specifically remember discussing these potential defenses with Winings. Newman stated
that, while it was possible that he did discuss these potential defenses with Winings, it was
also possible that he did not. Newman made tactical decisions in his attempts to garner the
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best possible outcome for Winings, including filing a motion to suppress the evidence
stemming from the traffic stop, which, again, he “candidly thought was our best defense in
the case.” Tr. p. 74. Newman also managed to negotiate a plea deal by which the State
agreed to reduce one of the two Class A felony charges that Winings was facing to a Class B
felony; cap the executed portion of Winings’s sentence, which could potentially have
exceeded one hundred years if Winings had been convicted of each of the charged offenses,
to forty years; and dismiss a felony charge that was charged under an unrelated cause
number.
Newman’s testimony regarding his strategic and tactical decisions as well as the steps
he took to insure that Winings receive a favorable outcome, lead us to the opinion that
Newman performed adequately. See Smith, 765 N.E.2d at 585. As such, we conclude that
Winings cannot establish that he suffered ineffective performance of trial counsel because he
has failed to demonstrate that Newman’s performance was deficient. See Reed, 866 N.E.2d
at 769 (providing that in order to prove a claim of ineffective assistance of counsel, petitioner
must prove both prongs set forth in Strickland, i.e., defective performance and prejudice); see
Grinstead, 845 N.E.2d at 1031 (providing that a claim of ineffective assistance of counsel
can be disposed of on either prong).
The judgment of the post-conviction court is affirmed.
BAILEY, J., and MAY, J., concur.
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