MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 30 2016, 8:32 am
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ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana
Tracy A. Nelson Monika Prekopa Talbot
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Coyle, December 30, 2016
Appellant-Petitioner, Court of Appeals Case No.
36A01-1603-PC-644
v. Appeal from the Jackson Circuit
Court
State of Indiana, The Honorable William Vance
Appellee-Respondent. Judge
Trial Court Cause No.
36C01-1110-PC-3
Bradford, Judge.
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Case Summary
[1] Appellant-Petitioner Robert Coyle appeals the denial of his petition for post-
conviction relief (“PCR”). Specifically, Coyle raises the following restated
issue: whether the post-conviction court erred when it concluded that Coyle’s
trial counsel was not ineffective for failing to move for a dismissal of the charges
under Cause No. 36C01-0408-FA-34 (“Cause No. 34”). Because there is no
evidence that such a motion would have been granted or that Coyle suffered
any prejudice, the post-conviction court’s denial of Coyle’s PCR petition was
not clearly erroneous. We affirm.
Facts
[2] Our memorandum decision in Coyle’s prior direct appeal for the charges in
Cause No. 36C01-0410-FA-46 (“Cause No. 46”), which was handed down on
April 10, 2007, instructs us as to the underlying facts leading to this post-
conviction proceeding.
In 2004, Coyle was living in a residence in Seymour, Indiana
with his girlfriend. In August of that year, the Seymour police,
led by Detective Carl Lamb, executed a search warrant on the
residence. Based upon the officers’ findings, Coyle and others
were arrested for dealing cocaine. Coyle was imprisoned at the
Jackson County jail where he told Ryan Tincher, another
inmate, of his desire to kill Detective Lamb and his family. Once
he was released from jail, Tincher told Detective Lamb about
Coyle’s statements. Coyle had previously shared his aspiration
to kill Detective Lamb with Melvin Robison, an acquaintance,
and, while Coyle was incarcerated at the Jackson County jail,
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Robison became an inmate there, as well. While an inmate,
Robison acted as a confidential informant to obtain information
on Coyle’s plan to kill Detective Lamb and his family. A police
officer from a neighboring community posed as Robison’s
contact “on the outside,” and Coyle eventually signed over two
vehicles as payment for the murders and for the burning of
Detective Lamb’s home. Based upon the information gathered
while Coyle was incarcerated, he was charged with three counts
of conspiracy to commit murder and one count of conspiracy to
commit arson. . . .
Coyle v. State, 36A05-0606-CR-294 *1 (Ind. Ct. App. April 10, 2007),
trans. denied.
Procedural History
[3] On August 9, 2004, in Cause No. 34, the State charged Coyle with two counts
of Class A felony dealing in cocaine. On October 13, 2004, in Cause No. 46,
the State charged Coyle with three counts of Class A felony conspiracy to
commit murder and one count of conspiracy to commit arson. On December 1,
2005, in Cause No. 36C01-0512-FA-40 (“Cause No. 40”), the State charged
Coyle with Class A felony conspiracy to commit murder.
[4] On March 16, 2006, a jury found Coyle guilty as charged in Cause No. 46 and
the trial court sentenced him to concurrent sentences of 45 years on each
conspiracy to commit murder count and a 15-year consecutive sentence on the
conspiracy to commit arson count. Coyle filed a direct appeal arguing that
there was insufficient evidence to sustain his convictions and that the trial court
erroneously sentenced him to an aggregate term of 60 years because his crimes
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constituted a single episode of criminal conduct. Consequently, Coyle argued
that his sentence should have been capped at 55 years.
[5] This Court affirmed Coyle’s convictions in Cause No. 46 in a memorandum
opinion on April 10, 2007, and the Indiana Supreme Court subsequently denied
transfer. On September 10, 2007, Coyle pled guilty to one count of Class A
felony dealing in cocaine under Cause No. 34, in exchange for a 20-year
sentence and for the dismissal of the other Cause No. 34 drug charge and the
conspiracy to commit murder charge under Cause No. 40. Per the agreement,
the 20-year sentence under Cause No. 34 would be consecutive to the Cause
No. 46 sentence. On October 5, 2007, Coyle was sentenced in Cause No. 34 in
accordance with the plea agreement.
[6] On May 5, 2008, Coyle, pro se, filed a petition for PCR, which was later
amended by counsel, alleging that his appellate counsel was ineffective for not
arguing that Coyle should not have been convicted of four counts of conspiracy
when there was only evidence of one agreement. Coyle and the State
subsequently filed a joint motion to dismiss the amended petition for PCR in
exchange for vacating three convictions under Cause No. 46 along with the
sentences imposed upon them. The PCR court granted the joint motion on
August 24, 2011.
[7] On October 13, 2011, Coyle, pro se, filed a petition for PCR in Cause No. 34.
The petition was amended twice by counsel. In the final amended petition filed
on April 13, 2014, Coyle claimed that his trial attorneys were ineffective for
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failing to move for the dismissal of his charges in Cause No. 34 because those
charges should have been joined with the charges under Cause No. 46. Coyle
further alleged that the State was barred from prosecuting him in a separate
cause and he was prejudiced by his attorneys’ ineffectiveness because he pled
guilty to a charge that the State was barred from prosecuting. On March 1,
2016, the post-conviction court denied Coyle relief.
Discussion and Decision
I. Standard of Review
[8] 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 a denial of a petition for
post-conviction relief, 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 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
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findings of fact unless they are clearly erroneous but give no deference to its
conclusions of law. Id.
II. Ineffective Assistance of Trial Counsel
[9] Post-conviction proceedings do not afford a petitioner with a super-appeal, and
not all issues are available. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001).
A claim of ineffective assistance of trial counsel is properly presented in a post-
conviction proceeding if such claim is not raised on direct appeal. Id. A claim
of ineffective assistance of counsel is an appropriate issue for post-conviction
review. Id.
[10] “The right to effective counsel is rooted in the Sixth Amendment of 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.” Strickland v. Washington, 466 U.S. 668, 685, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). We evaluate such claims under the two-part
test announced in Strickland. Wheeler v. State, 15 N.E.3d 1126, 1129 (Ind. Ct.
App. 2014). A successful claim for ineffective assistance of counsel must satisfy
two components:
First, the defendant must show deficient performance:
representation that fell below an objective standard of
reasonableness, committing errors so serious that the defendant
did not have the “counsel” guaranteed by the Sixth Amendment.
Second, the defendant must show prejudice: a reasonable
probability (i.e. a probability sufficient to undermine confidence
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in the outcome) that, but for counsel’s errors, the result of the
proceeding would have been different. McCary v. State, 761
N.E.2d 389, 392 (Ind. 2002) (citing Strickland v. Washington, 466
U.S. 668, 687–88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
When considering the first prong of the Strickland test, deficient
performance, the question is not whether the attorney could—or
even should—have done something more. Rather, the question
is whether the attorney’s performance amounted to a reasonably
competent defense or did not. As a result, the inquiry must focus
on what the attorney actually did, and “[i]solated mistakes, poor
strategy, inexperience, and instances of bad judgment do not
necessarily render representation ineffective.” Timberlake v. State,
753 N.E.2d 591, 603 (Ind.2001). Moreover, because “[c]ounsel
is afforded considerable discretion in choosing strategy and
tactics, ... [a] strong presumption arises that counsel rendered
adequate assistance.” Id.
Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007).
[11] Coyle argues that his trial counsel was ineffective for failing to move to dismiss
his charges under Cause No. 34. According to Coyle, the charges in the drug
case and the conspiracy to commit murder case had to be joined because they
were a series of connected acts. Due to the fact they were not joined by the
State, Coyle argues that the drug charges under Cause No. 34 should been have
dismissed on a motion by his trial counsel. Coyle further asserts that as a result
of this deficient performance, he is serving twenty years on a conviction the
State was barred from prosecuting.
[12] The post-conviction court rejected Coyle’s argument on the ground that his trial
counsel’s failure to move to dismiss the drug charges under Cause No. 34 was
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not deficient. Specifically, the post-conviction court entered the following
findings of facts and conclusions thereon:
6. Petitioner was not entitled to dismissal of the underlying drug
case, Jackson Circuit Court Cause No. 36C01-0408-FA-34,
because those cases are not of a similar character. The cases are
not part of a single scheme or plan because they are not
connected by a distinctive nature, they do not share a common
modus operandi and they do not share a common motive.
7. Even if Petitioner was correct, and the case was in fact barred
from prosecution, the Petitioner cannot show that there was
prejudice.
8. The Strickland standard for relief for ineffective assistance of
counsel has two prongs, both of which must be met in order for a
petition for post-conviction relief to succeed. The second prong
of [Strickland] requires a showing of prejudice.
9. Petitioner’s claim of ineffective assistance of counsel rests
upon the assertion that the State was barred from prosecuting the
underlying cause due to the disposition of the State’s case in
Jackson Circuit Court Cause No. 36C01-0410-FA-40.
10. The Petitioner cannot show prejudice because he cannot
show that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.
11. The testimony presented at the fact finding hearing shows
that, even if the drug case and the conspiracy case were
sufficiently related to the extent that they should have been
joined, counsel would have moved to sever those cases.
PC App. 188-92.
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[13] The post-conviction court’s findings, based upon the Strickland test, were
supported by the record. The events surrounding the drug and conspiracy
charges occurred several months apart in different locations. The post-
conviction court found that there was no evidence that the charges arose from a
single scheme or plan, were connected by a distinctive nature, or share a
common motive. Counsel admitted to the post-conviction court that even if the
cases were sufficiently related such that they could have been joined, counsel
would have moved to sever those cases. Additionally, there is no evidence that
a motion to dismiss in Cause No. 34 would have been granted had one been
filed by his trial counsel.
[14] The evidence does not compel a decision opposite that reached by the post-
conviction court. Consequently, it was not clearly erroneous for the post-
conviction court to conclude that Coyle’s trial counsel’s performance was not
deficient and Coyle was not prejudiced by his trial counsel’s failure to file a
motion to dismiss.
[15] We affirm the post-conviction court’s judgment.
Vaidik, C.J., and Brown, J. concur.
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