MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 26 2018, 7:36 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Crawford, June 26, 2018
Appellant-Petitioner, Court of Appeals Case No.
32A01-1710-PC-2487
v. Appeal from the Hendricks Superior
Court
State of Indiana, The Honorable Robert W. Freese,
Appellee-Respondent Judge
Trial Court Cause No.
32D01-1501-PC-2
Crone, Judge.
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Case Summary
[1] James Crawford appeals the denial of his petition for post-conviction relief. He
contends that the post-conviction court clearly erred in determining that he
failed to demonstrate that he received the ineffective assistance of trial counsel.
Concluding that Crawford has not met his burden to prove that he received
ineffective assistance, we affirm.
Facts and Procedural History
[2] On January 23, 2006, Crawford and his brother (collectively “the Brothers”)
were each charged with six counts of class B felony robbery (six different
victims), seven counts of class D felony theft, and six counts of class D felony
criminal recklessness, for a total of nineteen counts. The Brothers originally
hired attorney John Moss to represent them, but after he repeatedly failed to
appear for hearings, the Brothers hired attorney Joseph Thoms to represent
them.
[3] Prior to trial, attorney Thoms negotiated a plea deal with the deputy prosecutor
which would have resulted in a fourteen-year prison sentence for each of the
Brothers. Despite the strong recommendation from their attorney that they
should accept the deal, the Brothers rejected the plea agreement. The Brothers
waived the right to a jury trial, both orally and in writing, and the case
proceeded to a bench trial on August 31, 2007.
[4] During trial, the State called eight witnesses which included the six alleged
armed robbery victims, the owner of the handgun used to facilitate the
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robberies, and the police detective assigned to the case. Robbery victim
Samantha Stevenson testified that one of the Brothers pointed a gun and
ordered the six victims to get on the floor on their stomachs. She was five
months pregnant at the time, so it was difficult for her to stay on her stomach,
but one of the Brothers kept yelling at her and nudged her with his foot. One of
the Brothers took her engagement and wedding rings off her finger. One of the
Brothers kicked her hand. The Brothers repeatedly threatened to kill the six
victims. Several of the victims testified that Crawford and his brother passed
the gun back and forth during the robbery and that Crawford pointed the gun
right at their heads.
[5] At the trial’s conclusion, the court found the Brothers guilty of six counts of
class B felony robbery and six counts of class D felony theft. The trial court
found the Brothers not guilty of one count of class D felony theft and not guilty
of the six counts of class D felony criminal recklessness. The court sentenced
Crawford to the advisory sentence of ten years on each robbery count, to be
served consecutively, and six months for each theft count, to be served
concurrently with each other and with the sentences on the robbery counts, for
an aggregate sentence of sixty years’ imprisonment.
[6] No direct appeal was ever filed, but on January 21, 2015, the Brothers filed
separate petitions for post-conviction relief alleging, among other things, that
they received ineffective assistance of trial counsel. An evidentiary hearing was
held on September 18, 2015. The Brothers called attorney Thoms to testify.
Attorney Thoms stated that he met with the Brothers on multiple occasions
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prior to trial. He testified that he specifically advised the Brothers that they
faced “upwards of 120 years” because the maximum sentence for a class B
felony was twenty years and then it would be “times 6.” PCR Tr. Vol. 2 at 7.
Attorney Thoms testified that, against his clear advice, the Brothers rejected the
plea offer that he had negotiated with the State. Attorney Thoms further
testified that, due to the overwhelming evidence against the Brothers, he
believed the best defense strategy was to challenge the State’s case through
vigorous cross-examination of the witnesses, and to move for a directed verdict
at the conclusion of the State’s case, which he did. The Brothers also testified at
the hearing.
[7] On September 27, 2017, the post-conviction court entered its findings of fact,
conclusions thereon, and order denying Crawford’s petition for relief. This
appeal ensued.
Discussion and Decision
[8] The petitioner in a post-conviction proceeding has the burden of establishing
grounds for relief by a preponderance of the evidence. Ellis v. State, 67 N.E.3d
643, 646 (Ind. 2017). When appealing the denial of a petition for post-
conviction relief, the petitioner stands in the position of one appealing from a
negative judgment. Id. To prevail on appeal, a petitioner must show that the
evidence as a whole leads unerringly and unmistakably to a conclusion opposite
that reached by the post-conviction court. Id. Where, as here, the post-
conviction court makes findings of fact and conclusions of law as required by
Indiana Post-Conviction Rule 1(6), we will reverse its findings only upon a
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finding of clear error, namely “that which leaves us with a definite and firm
conviction that a mistake has been made.” Id. (citation omitted). We will not
reweigh the evidence or judge the credibility of witnesses, and will consider
only the probative evidence and reasonable inferences flowing therefrom that
support the post-conviction court’s decision. Hinesley v. State, 999 N.E.2d 975,
981 (Ind. Ct. App. 2013), trans. denied (2014).
[9] When evaluating an ineffective assistance of counsel claim, we apply the two-
part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Humphrey
v. State, 73 N.E.3d 677, 682 (Ind. 2017). “To satisfy the first prong, ‘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.’” Id.
(quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the
second prong, the defendant must show prejudice. Id. To demonstrate
prejudice from counsel’s deficient performance, a petitioner need only show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Middleton v. State, 72 N.E.3d 891,
891-92 (Ind. 2017) (emphasis and citation omitted). “A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” Id.
[10] Isolated poor strategy, inexperience, or bad tactics does not necessarily
constitute ineffective assistance. Hinesley, 999 N.E.2d at 982. When
considering a claim of ineffective assistance of counsel, we strongly presume
“that counsel rendered adequate assistance and made all significant decisions in
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the exercise of reasonable professional judgment.” Id. (citation omitted). We
presume that counsel performed effectively, and a defendant must offer strong
and convincing evidence to overcome this presumption. Id.
[11] We must acknowledge that the judge who presided over Crawford’s bench trial
is also the judge who presided over the post-conviction proceedings, and
therefore the post-conviction court’s findings and judgment are entitled to
“greater than usual deference.” Id. (quoting McCullough v. State, 973 N.E.2d 62,
75 (Ind. Ct. App. 2012), trans. denied (2013)). Indeed, we have explained that,
in such a case, the judge is uniquely situated to assess whether trial counsel’s
performance fell below an objective standard of reasonableness and whether,
but for counsel’s unprofessional conduct, there was a reasonable probability
that a different verdict would have been reached. Id.
[12] Crawford first argues that trial counsel was ineffective for failing to correctly
advise him of the potential sentence he faced and failing to ensure that he
“knowingly and intelligently rejected the plea agreement offered by the
prosecution.” Appellant’s Br. at 16. However, this issue was not raised in
Crawford’s petition for post-conviction relief and was therefore properly
determined by the post-conviction court to be waived. Accordingly, the issue is
not available for appellate review.1 See Pruitt v. State, 903 N.E.2d 899, 906 (Ind.
1
Waiver notwithstanding, attorney Thoms testified unequivocally that he advised Crawford of the potential
lengthy sentence that he faced and further advised Crawford to accept the plea agreement. We are
unpersuaded that the trial court’s misstatement regarding the maximum possible sentence that occurred at the
beginning of the bench trial and after Crawford had already rejected the plea agreement in writing had any
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2009) (“Issues not raised in the petition for post-conviction relief may not be
raised for the first time on post-conviction appeal.”) (quoting Allen v. State, 749
N.E.2d 1158, 1171 (Ind. 2001)).
[13] Crawford also questions the adequacy of counsel’s trial preparation and chosen
defense strategy, asserting that counsel was ineffective in failing to proffer a
“fake robbery” defense and argue that the Brothers arranged the whole incident
with one of the alleged victims. Appellant’s Br. at 25. Specifically, Crawford
claims that attorney Thoms failed to obtain his former attorney’s files (including
depositions) or spend sufficient time with the Brothers to prepare the “fake
robbery” defense. The post-conviction court found:
38. Regarding the depositions, attorney Thoms stated that he
was unsuccessful in attempting to get attorney Moss to turn over
his files or the depositions. Attorney Moss had a history of failing
to appear in court. Attorney Thoms admitted that he did not
attempt to obtain a copy from the Court’s file. Nevertheless,
Petitioners have failed to demonstrate how knowledge of the
contents of the depositions would have resulted in an acquittal.
The evidence in this case was very strong. All six armed robbery
victims testified that [the Brothers] robbed them. Minor
inconsistencies in their testimony did not refute or lessen the
overwhelming conclusion that the Brothers robbed them at
gunpoint. At the PCR hearing, both Brothers admitted to
committing the armed robbery.
effect on his decision to reject the agreement. Crawford has shown neither that counsel performed deficiently
nor that such performance prejudiced him.
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39. The “pretend robbery” defense claimed by [Crawford] had
obvious limitations and drawbacks starting with the fact that the
alleged agreement to fake a robbery would have only applied to
one person and not to the other five people who were robbe[d] at
gunpoint. Furthermore, at the PCR hearing, [Crawford]
admitted that it turned into a real robbery. His brother never
thought it to be anything else. The Brothers had no real defense
to their crimes. Nevertheless, attorney Thoms assisted them in
the exercise of their constitutional right to make the state prove
its case beyond a reasonable doubt. This court will not second-
guess matters of strategy by trial counsel.
40. Attorney Thoms subjected the State’s case to adversarial
testing and his performance did not fall below an objective
standard of reasonableness based upon prevailing professional
norms. Petitioners have failed to prove ineffective assistance of
counsel.
Appealed Order at 7-8.
[14] As found by the post-conviction court, Crawford has failed to present strong
and convincing evidence to overcome the presumption that counsel was
adequately prepared for trial or that it is reasonably probable that additional
preparation (such as obtaining the depositions) would have resulted in a
different verdict. Attorney Thoms testified that he met with the Brothers on
multiple occasions, conducted discovery, and was adequately prepared for trial.
He believed that the evidence against the Brothers was overwhelming and that
the best defense strategy was to challenge the State’s case through vigorous
cross-examination of the witnesses. It is well settled that choice of defense
theory is a matter of trial strategy, and trial strategy “is not subject to attack
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through an ineffective assistance of counsel claim, unless the strategy is so
deficient or unreasonable as to fall outside of the objective standard of
reasonableness.” Benefield v. State, 945 N.E.2d 791, 799 (Ind. Ct. App. 2011).
The post-conviction court concluded that attorney Thoms’s performance did
not fall below an objective standard of reasonableness in this regard, and
Crawford has not shown that the evidence as a whole leads unerringly and
unmistakably to an opposite conclusion. Accordingly, we affirm the denial of
his petition for relief.
[15] Affirmed.
Bailey, J., and Brown, J., concur.
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