MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Sep 17 2018, 9:16 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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
William D. Polansky Matthew B. MacKenzie
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Calvin McKeller, September 17, 2018
Appellant-Petitioner, Court of Appeals Case No.
18A-PC-570
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Sheila A. Carlisle,
Appellee-Respondent. Judge
The Honorable Stanley E. Kroh,
Magistrate
Trial Court Cause No.
49G03-1603-PC-11167
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-570 | September 17, 2018 Page 1 of 12
Case Summary
[1] Calvin McKeller (“McKeller”) appeals the denial of his petition for post-
conviction relief, which challenged his conviction for Robbery, as a Class B
felony,1 and his adjudication as a habitual offender.2 We affirm.
Issues
[2] McKeller presents two issues for review:
I. Whether he was denied the effective assistance of trial
counsel; and
II. Whether his admission that he is a habitual offender was
made voluntarily, knowingly, and intelligently.
Facts and Procedural History
[3] The facts underlying McKeller’s conviction were set forth by a panel of this
court on direct appeal:
On July 4, 2011, McKeller called Brenai Baxter (“Baxter”) and
invited her to a barbeque. Baxter had previously met McKeller
and his friend, Kevin Perry (“Perry”), at another barbeque about
a week prior. Baxter decided to go to the barbeque and agreed to
give McKeller a ride in her car. Baxter and her five-year-old son
picked McKeller up. McKeller gave Baxter directions to a house,
1
Ind. Code § 35-42-5-1.
2
I.C. § 35-50-2-8.
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but not an address. McKeller noticed some sandals in the car
and asked Baxter if he could purchase them. Initially Baxter
refused, but she eventually agreed. McKeller told Baxter to park
in an alley. Baxter did not see anyone else and asked McKeller
about others attending the barbeque. McKeller told her that the
other attendees parked in front of the house. McKeller exited the
car to get the money for the sandals. When McKeller returned,
Perry was with him. Perry asked Baxter if he could look at the
sandals. Baxter turned around to grab the sandals. When she
turned back toward Perry, he was pointing a gun at her, and
McKeller was pointing a gun at her son. Perry demanded money
from Baxter. She refused, and Perry reached into Baxter’s bra
and took her money. Perry and McKeller ran away, and Baxter
called the police.
On July 7, 2011, the State charged McKeller with robbery and
unlawful possession of a firearm by a serious violent felon, both
Class B felonies. McKeller was charged jointly with Perry for the
robbery. The State also charged McKeller with pointing a
firearm as a Class D felony and carrying a handgun without a
license as a Class A misdemeanor. A jury trial was held on July
30, 2012. After the presentation of evidence, McKeller tendered
an instruction for Class C felony robbery as a lesser-included
offense of the Class B felony robbery. The State objected, and
the trial court refused to give McKeller’s tendered instruction.
The trial court did instruct the jury on the theory of accomplice
liability. The jury convicted McKeller of robbery, but acquitted
him of the other charges.
McKeller v. State, No. 49A02-1209-CR-714, slip op. at 2-3 (Ind. Ct. App. June
28, 2013), trans. denied. McKeller appealed, raising the sole issue of whether the
trial court erred in refusing to give McKeller’s tendered instruction on the
lesser-included offense of Class C felony robbery. His conviction was affirmed.
See id. at 2.
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[4] On February 14, 2014, McKeller filed a pro-se petition for post-conviction
relief. That petition was withdrawn and, with the assistance of counsel,
McKeller filed an amended petition on October 14, 2016. On December 20,
2016, the post-conviction court conducted an evidentiary hearing, at which
McKeller’s trial counsel testified. On March 14, 2018, the post-conviction court
entered its findings of fact and conclusions of law and denied McKeller post-
conviction relief. McKeller now appeals.
Discussion and Decision
Post-Conviction Standard of Review
[5] The petitioner in a post-conviction proceeding bears the burden of establishing
the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing
from the denial of post-conviction relief, the petitioner stands in the position of
one appealing from a negative judgment. Id. On review, we will not reverse
the judgment of the post-conviction court unless the evidence as a whole
unerringly and unmistakably leads to a conclusion opposite that reached by the
post-conviction court. Id. A post-conviction court’s findings and judgment will
be reversed only upon a showing of clear error, that which leaves us with a
definite and firm conviction that a mistake has been made. Id. In this review,
findings of fact are accepted unless they are clearly erroneous, and no deference
is accorded to conclusions of law. Id. The post-conviction court is the sole
judge of the weight of the evidence and the credibility of witnesses. Id.
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Effectiveness of Trial Counsel
[6] Effectiveness of counsel is a mixed question of law and fact. Strickland v.
Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims
of ineffective assistance under the two-part test announced in Strickland. Id. To
prevail on an ineffective assistance of counsel claim, a defendant must
demonstrate both deficient performance and resulting prejudice. Dobbins v.
State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687).
Deficient performance is that which falls below an objective standard of
reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d
1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that
“there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.
1996). The two prongs of the Strickland test are separate and independent
inquiries. Strickland, 466 U.S. at 697. Thus, “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice … that course
should be followed.” Id.
[7] McKeller contends he was denied effective assistance of trial counsel because
counsel failed to object to an accomplice liability instruction that included the
language: “To be guilty, he does not have to personally participate in the crime
nor does he have to be present when the crime is committed.” (Exhibits, pg.
18.) McKeller’s trial counsel testified at the post-conviction hearing that she
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had no strategic reason for omitting an objection and she had “simply
overlooked” the objectionable language. (P-C.R. Tr. at 13.)
[8] The State responds that the instruction, taken as a whole, adequately informed
the jury as to the requisite elements for finding McKeller guilty as an
accomplice. The challenged instruction, Final Instruction 22(A), provides:
A person who, knowingly or intentionally aids another person in
committing or induces another person to commit or causes
another person to commit Robbery, a Class B felony is guilty of
Robbery, a Class B felony even though he does not personally
participate in each act constituting the Robbery, a Class B felony.
A person may be convicted of Robbery, a Class B felony even if
the other person has not been prosecuted for the Robbery, a Class
B felony; nor – or [sic] has not been convicted of the Robbery, a
Class B felony; [or] has been acquitted of the Robbery, a Class B
felony.
In order to commit Robbery, a Class B felony, by aiding,
inducing, or causing another to commit Robbery, a Class B
felony, a person must have knowledge that he is aiding, inducing,
or causing another to commit Robbery, a Class B felony. To be
guilty, he does not have to personally participate in the crime nor does he
have to be present when the crime is committed. Merely being present
at the scene of the crime is not sufficient to prove that he aided,
induced, or caused the crime. Failure to oppose the commission
of the crime is also insufficient to prove aiding, inducing, or
causing another to commit the crime. But presence at the scene
of the crime or failure to oppose the crime’s commission along
with the defendant’s companionship with the person committing
the offense and conduct before and after the offense are factors
which may be considered in determining whether there was
aiding, inducing, [or] causing another to commit the crime.
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Before you may convict the Defendant, the State must have
proved each of the following elements beyond a reasonable
doubt:
1. The Defendant.
2. Knowingly or intentionally.
3. Aided, or induced, or caused, Kevin Perry to commit the
offense of Robbery, a Class B felony, defined as
A. Knowingly.
B. Took property, that is money and/or a credit card, and/or
sandals from the person or presence of Brenai Baxter.
C. By putting Brenai Baxter in fear or by using or threatening
the use of force on Brenai Baxter.
D. And when committing these elements he was armed with
a deadly weapon, that is: handgun or guns.
If the State failed to prove each of these elements beyond a
reasonable doubt, you should find the defendant not guilty of
Robbery, a Class B felony, charged in Count I.
(Exhibits, pgs. 17-19) (emphasis added).
[9] During deliberations, the jury sent out a request for clarification of Final
Instruction 22(A), specifically identifying “Part D,” the language referencing a
deadly weapon. (Trial Tr. at 212.) The jury question was read aloud by the
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trial court, as follows: “Does this mean [McKeller] has to have a gun or just
that a gun was present and used in the commission at a robbery for Part D to
apply?” Id. By agreement of the parties, the trial court responded with a
direction to the jury to “Please reread the instructions.” Id.
[10] When an ineffective assistance of counsel claim is premised upon the trial
counsel’s failure to make an objection, the petitioner must show that a proper
objection would have been sustained by the trial court. Lambert v. State, 743
N.E.2d 719, 732 (Ind. 2001). Instruction 22(A), although cumbersome,
informed the jury of the requisite statutory elements to support a conviction for
Robbery, as a Class B felony, and the jury was properly informed that an
accomplice need not have participated in each element.3 At the same time,
however, the jury was informed that McKeller need not have participated in the
properly-defined crime. “[T]he Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged.” In re Winship, 397
U.S. 358, 364 (1970). We thus conclude that, had trial counsel objected to the
3
See also I.C. § 35-41-2-4, providing:
A person who knowingly or intentionally aids, induces, or causes another person to commit an offense
commits that offense, even if the other person:
(1) has not been prosecuted for the offense;
(2) has not been convicted of the offense; or
(3) has been acquitted of the offense.
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jury being instructed that McKeller need not have participated in the charged
crime, the objection would have been sustained.
[11] Candidly, McKeller has directed our attention to a case in which a defendant
directly appealing his convictions did not obtain a reversal despite the jury
having been instructed that an accomplice “does not have to personally
participate in the crime nor does he have to be present when the crime is
committed.” Hawn v. State, 565 N.E.2d 362, 366 (Ind. Ct. App. 1991). Hawn
was convicted of fourteen counts of dealing in cocaine, three counts of
conspiracy to deal cocaine, one count of corrupt business influence, and two
counts of maintaining a common nuisance. There was evidence of record that
Hawn had sold cocaine in Warren County, Indiana on at least nine occasions
in 1987 and 1988 and that he had driven to Florida to purchase cocaine on two
occasions in 1988. He was found complicit in money collection efforts made by
his wife and another individual. See id. at 364. In that context, a panel of this
Court held: “Although the State’s instruction does not qualify the participation
language, any error was harmless due to the strong evidence of appellant’s
guilt.” Id. at 366.
[12] According to the State, even if the performance of McKeller’s trial counsel was
less than optimal, McKeller was not prejudiced under the Strickland standard,
that is, a “reasonable probability” of a different outcome, but for counsel’s
unprofessional error. 466 U.S. at 694. At McKeller’s post-conviction hearing,
the trial record was admitted into evidence. The State asserts “the evidence
presented by the State against Petitioner was strong, minimizing any theoretical
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prejudice,” and observes that Baxter identified McKeller as a participant in her
robbery.4 Appellee’s Brief at 15. Cell phone records placed McKeller in
Baxter’s vicinity during the relevant time frame and he admitted during a
recorded telephone conversation that he owned a handgun with a beam. Baxter
had described the gun held on her as having a beam.
[13] The strength of the evidence against McKeller is such that the post-conviction
court could reasonably have found a lack of prejudice to McKeller from the use
of instruction with some conflicting language. Under Strickland, a “reasonable
probability” has been defined as “a probability sufficient to undermine
confidence in the outcome.” 466 U.S. at 694. We cannot say that the evidence
before the post-conviction court, as a whole, unerringly and unmistakably leads
to a conclusion opposite that reached by the post-conviction court.
Habitual Offender Plea
[14] McKeller contends that his admission that he is a habitual offender was not
made voluntarily, knowingly, and intelligently due to the lack of express
advisements of waiver of certain rights at the habitual offender phase. A
habitual offender adjudication is not equivalent to conviction of a crime. See
Harris v. State, 964 N.E.2d 920, 927 (Ind. Ct. App. 2012). However, if a
defendant expressly admits to the habitual offender enhancement, such an
4
Baxter’s young son also testified that a second man was present during the robbery; he was not asked to
make an in-court identification.
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admission is considered a guilty plea. See Vanzandt v. State, 730 N.E.2d 721,
726 (Ind. Ct. App. 2000). A defendant may challenge a guilty plea only in a
petition for post-conviction relief. Saylor v. State, 55 N.E.3d 354, 365 n. 10 (Ind.
Ct. App. 2016), trans. denied.
[15] After his conviction by a jury, McKeller admitted he is a habitual offender and
expressly waived his right to have that determination made by a jury.
However, during the habitual offender phase, the judge did not expressly advise
McKeller that he would be giving up his right to confront and cross-examine
witnesses and the privilege against self-incrimination. McKeller asserts that his
plea was involuntary because he was given less than all the advisements
required by Boykin v. Alabama, 395 U.S. 238, 242 (1969).
[16] In Boykin, the United States Supreme Court held that it was reversible error for
the trial court to accept a guilty plea without an affirmative showing that it was
intelligent and voluntary. “More particularly, Boykin requires that the record
must show, or there must be an allegation and evidence which show, that the
defendant was informed of, and waived, three specific federal constitutional
rights: the privilege against compulsory self-incrimination, right to trial by jury,
and the right to confront one’s accusers.” Hall v. State, 849 N.E.2d 466, 469
(Ind. 2006). Boykin does not require that the record of the guilty plea hearing
evinces a formal advisement or formal waiver; rather, Boykin only requires that
a conviction be vacated if the defendant did not know or was not advised at the
time of his plea that he was waiving his Boykin rights. Winkleman v. State, 22
N.E.3d 844, 851 (Ind. Ct. App. 2014). In Winkleman, the Court observed that
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the defendant, who had entered his plea after the guilt phase of a jury trial, had
admitted to the habitual offender enhancement ‘“in the midst of a trial, where
the Boykin rights are on display for all to see.”’ Id. (quoting Hopkins v. State, 889
N.E.2d 314, 317 (Ind. 2008)). Likewise, McKeller, who had just received
advisements as part of his jury trial before proceeding to the habitual offender
phase, did not establish that he was unaware of his Boykin rights. He has not
demonstrated that his plea was involuntary.
Conclusion
[17] McKeller was not denied the effective assistance of trial counsel and he has not
shown that he entered an involuntary plea. Accordingly, the post-conviction
court properly denied McKeller post-conviction relief.
[18] Affirmed.
Mathias, J., and Bradford, J., concur.
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Calvin McKeller v. State of Indiana (mem. dec.)
Combined Opinion