MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 13 2018, 10:20 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
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
Douglas Crawford, July 13, 2018
Appellant-Defendant, Court of Appeals Case No.
32A05-1710-PC-2486
v. Appeal from the Hendricks
Superior Court
State of Indiana, The Honorable Robert W. Freese,
Appellee-Plaintiff. Judge
Trial Court Cause No.
32D01-1501-PC-1
Mathias, Judge.
[1] Douglas Crawford (“Douglas”) appeals the Hendricks Superior Court’s denial
of his petition for post-conviction relief. Douglas argues his trial counsel was
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ineffective and alleges that 1) counsel failed to adequately advise Douglas
regarding the benefits of the plea he rejected, and 2) counsel failed to present
Douglas’s preferred defense.
[2] We affirm.
Facts and Procedural History
[3] On January 15, 2006, Caleb Stephenson (“Caleb”) and his pregnant wife,
Samantha Stephenson (“Samantha”) invited Adam Squires (“Adam”), Ryan
Vogel (“Ryan”), Waylon Cox (“Waylon”), William Cox (“William”) and
brothers James (“James”) and Douglas Crawford (collectively, “the
Crawfords”) over to their apartment. The group was watching television when
James pulled out a gun from “under the table in the case where it was.” Ex.
Vol. III, State’s Ex. 1, p. 21. After James loaded the gun, he yelled “get your
fu**ing a**es on the ground.” Id. at 23. Ryan asked, “[A]re you serious?” and
James responded, “[T]his isn’t a joke, I’ll blow your heads off, I’ll do this.” Id.
Everyone got on the ground and “did everything [James] said.” Id.
[4] The Crawfords proceeded to search everyone’s pockets and demanded money.
They stated they “were just going to start shooting people until they got
[money].” Id. at 28. As Douglas moved toward Samantha, she told Douglas to
take her wedding rings and to leave. Douglas removed the rings from
Samantha’s hand. Douglas also pulled a PlayStation 2 off of the wall, and
James finished taking personal items from the other people in the apartment.
Before they left the apartment, James opened the blinds, instructed everyone to
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remain on the floor for twenty minutes, and threatened to kill them if they
failed to follow his instructions. Id. at 29. Ryan started to get up and lock the
door, but James came back inside the apartment and said, “[T]hat’s a good way
to get your fu**ing head blown off, you better stay on the ground.” Id.
[5] After twenty minutes passed, Caleb called the police. Three officers arrived and
questioned all of the victims. Within the next two weeks, each victim identified
James and Douglas from a photographic line up.
[6] Douglas was charged with six counts of Class B felony robbery, plus charges of
criminal recklessness and theft, nineteen counts total, for the offenses
committed on January 15, 2006. A bench trial was held on August 31, 2007,
and the court found Douglas guilty of the six robbery counts and six theft
counts and not guilty of the remaining charges. A sentencing hearing was held
on September 27, 2007, and Douglas was sentenced to serve consecutive terms
of ten years for each Class B felony robbery conviction, for a total of sixty years.
See Appellant’s App. Vol. II, pp. 36–37. No direct appeal was ever filed.
[7] On October 10, 2014, Douglas filed his petition for post-conviction relief
arguing that he was denied effective assistance of counsel. At the post-
conviction hearing held on September 18, 2015, Douglas’s trial counsel testified
that he informed Douglas he was “looking at upwards of 120 years.” PCR Tr.
p. 7. Counsel explained that the State offered a plea agreement providing that
Douglas would plead guilty to “Count 1- Armed Robbery with the penalty as a
Class B felony” and the remaining counts would be dismissed. Appellant’s App.
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Vol. III, p. 104. Trial counsel testified that he “advised [the Crawfords] that
they were offered 17 years executed [ . . . ] and that [he] believe[d] it was in
their best interest to take the plea,” but they rejected it. PCR Tr. p. 9.
[8] During the post-conviction hearing, the Crawfords testified that they wanted
trial counsel to argue that the entire occurrence was a fake robbery. James
testified that “Caleb told me that he had owed some previous money and that
he wanted to know if I would be willing to come back down there and pretend
that I’m robbing the place and take the drugs and the money out of there[,] that
way he could tell his dealer that he had lost everything and we would split it.”
PCR Tr. p. 33. However, the alleged agreement was only between James and
Caleb, not the other five victims or Douglas. Further, James testified that
Douglas did not know about the robbery in advance because he would have
talked James out of it. Id. at 42. In regard to the defense of a “pretend robbery,”
trial counsel advised the Crawfords that the defense would be unsuccessful
because the evidence presented would have resulted in them being found guilty.
Id. at 26.
[9] After the hearing, the post-conviction court made the following findings of facts
and conclusions of law:
2. [Douglas] hired attorney John Moss (“attorney Moss”) to
represent [him]. Attorney Moss filed his Appearance[] and
requested a bond reduction, which was denied after hearing.
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3. After attorney Moss repeatedly failed to appear from hearings,
[the Crawfords] hired attorney Joseph Thoms (“attorney
Thoms”) to represent them.
***
6. Attorney Thoms requested but never received [Douglas]’s file
or depositions from attorney Moss. In any event, he did not
believe that the contents of Moss’[s] files or the depositions
would have made a difference.
7. Attorney Thoms received discovery from then deputy
prosecutor Joe Manning. Later, Adrienne Champine took over
prosecution duties. Attorney Thoms reviewed the file and
believes that he went through the file with his clients.
***
9. Attorney Thoms advised the [Crawfords] that they were facing
a “maximum 120 year” sentence. He negotiated a 17 year deal
with the prosecutor and strongly recommended to the
[Crawfords] that they accept the deal. They rejected a deal and
opted for a bench trial.
10. On March 28, 2007, attorney Thoms appeared at the pretrial
conference and requested that the matter be set for bench trial,
which was held on August 31, 2007.
11. Preliminary to the trial, a record was made that [Douglas]
waived the right to a jury trial, and that each had received and
rejected the State’s final plea offer. The waivers were in writing
and were submitted to the Court. Additionally, [Douglas] orally
confirmed [his] waivers on the record.
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***
15. During the State’s case, attorney Thoms:
a. Made evidentiary objections to the questioning of the
State’s witnesses, at least one of which were sustained.
b. Cross-examined each victim, pointing out some
inconsistencies in the testimony.
c. Drew attention to the prior relationship between some
of the victims and one or both of the [Crawfords].
d. Questioned whether the victims had been smoking
marijuana before the armed robbery, suggesting that one of
the victims was a marijuana dealer. [ . . . ]
16. After the State rested, attorney Thoms moved for dismissal
stating: I don’t believe they’ve proved the elements of a prima
facie case, I believe that the statements of the victims are
equivocal and contradictory and that they cannot prove beyond a
reasonable doubt that they—that there was a gun present, the
State has not produced the firearm and therefore, I do not believe
they’ve met the elements of armed robbery at a minimum. The
motion was denied.
17. After discussion with [Douglas], it was decided it would be in
[his] best interest for [him] not to testify. [Douglas] did not want
to testify. Defense rested without calling any witnesses.
***
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19. The parties then presented their closing arguments. After the
State made their arguments, attorney Thoms raised a number of
issues regarding the State’s witnesses, alleging inconsistencies,
equivocations, and contradictions. Regarding the deadly weapon
element of armed robbery, he pointed out that the State did not
produce a weapon: “There’s no gun, they haven’t been able to
produce one, therefore, I don’t believe the element of armed
robbery has been proved.”
Appellant’s App. Vol. II, pp. 50–54. Further, the court concluded that:
37. In their PCRs, the [Crawfords’] first claim is that attorney
Thoms was ineffective in that he was not prepared to try the case
in that he failed to obtain attorney Moss’[s] files (including
depositions), and spent insufficient time with the [Crawfords]
such that their “pretend robbery” defense was not heard.
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 is [sic] this case was very strong. All six armed
robbery victims testified that the Crawford Brothers robbed them.
Minor inconsistences in their testimony did not refute or lessen
the overwhelming conclusion that the [Crawfords] robbed them
at gunpoint. At the PCR hearing, both [Crawfords] admitted to
committing the armed robbery.
39. The “pretend robbery” defense claimed by James 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 robbery
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[sic] at gunpoint. Furthermore, at the PCR hearing, James
admitted that it turned into a real robbery. [Douglas] never
thought it to be anything else. [Douglas] had no real defense to
[the] crimes. Nevertheless, attorney Thoms assisted them in
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.
***
41. Furthermore, they have failed to demonstrate how a different
approach by attorney Thoms, or a different lawyer, would have
caused a different result. They have failed to demonstrate
prejudice.
42. [Douglas] also allege[s] that [he] would have accepted the
State’s plea offer had their attorney advised [him] that the armed
robbery counts could be “stacked” (imposed consecutively). This
complaint was not raised in their PCR and was, therefore,
waived. PCR Rule 1, Section 8. In any event, attorney Thoms
testified that he did advise the Crawford Brothers that because
the six armed robbery counts could be stacked, the maximum
sentence was 120 years, which is why he strongly recommended
that they accept the State’s offer.
Appellant’s App. Vol. II, pp. 60–62.
[10] Ultimately, the court found that Douglas’s trial counsel performed within an
objectively reasonable standard, and that trial counsel’s performance was
adequate during trial. Therefore, the post-conviction court concluded that
Douglas had not established that he was denied effective assistance of counsel,
and it denied his petition. Douglas now appeals.
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Discussion and Decision
[11] The post-conviction petitioner bears the burden of establishing grounds for
relief by a preponderance of the evidence. Willoughby v. State, 792 N.E.2d 560,
562 (Ind. Ct. App. 2003), trans. denied. When a petitioner appeals the denial of a
petition for post-conviction relief, the petitioner stands in the position of one
appealing from a negative judgment. Id. On appeal, we do not reweigh evidence
nor judge the credibility of witnesses; therefore, to prevail, Douglas must show
that the evidence as a whole leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Id.
[12] Where here, the post-conviction court made specific findings of fact and
conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we
must determine if the court’s findings are sufficient to support its judgment.
Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947
N.E.2d 962. Although we do not defer to the post-conviction court’s legal
conclusions, we review the post-conviction court’s factual findings for clear
error. Id. Accordingly, we will consider only the probative evidence and
reasonable inferences flowing therefrom that support the post-conviction court’s
decision. Id.
[13] A claim of ineffective assistance of trial counsel here requires a showing that:
(1) Douglas’s trial counsel’s performance was deficient by falling below an
objective standard of reasonableness; and (2) that the deficient performance
prejudiced Douglas such that “there is a reasonable probability that, but for
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counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). Failure to satisfy
either of the two elements will cause the claim to fail. French v. State, 778
N.E.2d 816, 824 (Ind. 2002). And when it is easier to dispose of an
ineffectiveness claim on the lack of prejudice, then this is the course we should
follow. Trujillo v. State, 962 N.E.2d 110, 114 (Ind. Ct. App. 2011).
[14] Douglas argues his trial counsel’s performance was deficient because he
inadequately informed Douglas of the benefits of accepting the offered plea
agreement. Specifically, Douglas argues that his trial counsel “did not
adequately ensure that Douglas knowingly and intentionally rejected the plea
agreement offered by the prosecution[,]” and counsel’s failure prejudiced
Douglas. Appellant’s Br. at 14. Further, Douglas claims that his trial counsel
was ineffective due to counsel’s “decision to advise against Douglas’[s] defense
was not just an isolated bad strategy or simply ill advised in hindsight[.]” Id.
I. Ineffective Assistance of Counsel on Plea Agreement
[15] “If a plea bargain has been offered, a defendant has the right to effective
assistance of counsel in considering whether to accept it.” Lafler v. Cooper, 566
U.S. 156, 132 S.Ct. 1376, 1387 (2012). Douglas testified that counsel was
unprepared and failed to properly advise him in considering whether to accept
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the plea agreement. Douglas also alleges that counsel failed to explain that the
sentence could be 120 years.1
[16] However, trial counsel testified that he urged Douglas to accept the plea
agreement, but Douglas rejected it and opted for a bench trial. Trial counsel
testified that he informed Douglas he was “looking at upwards of 120 years”
PCR Tr. p. 7. Counsel stated that the Crawfords “believed that [] they had a
good relationship with Judge Freese and that they would [] receive a fair trial
with a bench trial.” Id. at 20.
[17] The post-conviction court specifically found that counsel did advise Douglas
that “because the six armed robbery counts could be stacked, the maximum
sentence was 120 years, which is why [trial counsel] strongly recommended that
[Douglas] accept that State’s offer.” Appellant’s App. Vol. II, p. 62.
Determining whether trial counsel provided ineffective assistance of counsel
boils down to a credibility issue, and the post-conviction court found counsel’s
testimony to be credible.
[18] Further, before trial began the court noted that Douglas had rejected the plea
agreement. The trial court also stated, “that if [he was] convicted, [the judge]
will be the one that will sentence [him] and these are B felonies, so [he would
be] looking at between 6 and 20 years worth of time.” Ex. Vol. III, State’s Ex.
1
We note that Douglas did not raise his allegation that he would have accepted the State’s plea offer in his
PCR, and therefore, it was waived. PCR Rule 1, Section 8. Notwithstanding the waiver, we will address the
issue.
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1, pp. 10–11. Douglas understood the court’s advisement. Here, Douglas claims
that trial counsel should have corrected the trial court’s statement of the
potential sentence he was facing, because it was actually 120 years if the
maximum sentence was imposed for each conviction. See Appellant’s Br. at 14.
However, this argument is unpersuasive because Douglas rejected the plea
agreement before the trial court noted Douglas’s understanding of his decision
to reject it.
[19] Therefore, we conclude that trial counsel presented the plea agreement to
Douglas, advised him that he faced a 120-year sentence if he proceeded to trial,
and urged him to accept the plea agreement. Douglas voluntarily rejected the
agreement against counsel’s advice. Therefore, Douglas has not established that
he was subjected to deficient performance of counsel, and we do not need to
address the prejudice element. See French, 778 N.E.2d at 824 (stating that failure
to satisfy either of the two elements will cause the claim of ineffective assistance
of counsel to fail).
II. Failure to Raise a Defense
[20] “Counsel is afforded considerable discretion in choosing strategy and tactics,
and these decisions are entitled to deferential review.” Benefield v. State, 945
N.E.2d 791, 797 (Ind. Ct. App. 2011) (citing Stevens v. State, 770 N.E.2d 739,
746–47 (Ind. 2002)) (citations omitted). Trial counsel’s “choice of defense
theory” in the instant case was a matter of trial strategy. See Overstreet v. State,
877 N.E.2d 144, 154 (Ind. 2007). Counsel believed that the testimony of six
victims would not be able to sustain the defense of a “pretend robbery.” Trial
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counsel testified that he believed “through vigorous cross examination we
would be able to defend [the Crawfords] better.” PCR Tr. p. 20.
[21] Further, Douglas admitted to the robbery during the post-conviction hearing,
and the post-conviction court found that Douglas’s preferred defense “had
obvious limitations and drawbacks” because the “alleged agreement to fake a
robbery” would have only applied to one of the six victims. Appellant’s App.
Vol. II, p. 61. Therefore, we conclude that given the weight of the evidence,
trial counsel’s decision to omit a defense that was unlikely to be successful fell
within an objective standard of reasonableness. Thus, Douglas has failed to
establish that trial counsel’s performance was deficient, and we need not
address the prejudice element of Strickland.
[22] For all of these reasons, the post-conviction court did not err in denying
Crawford’s petition for post-conviction relief.
[23] Affirmed.
Riley, J., and May, J., concur.
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