MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Dec 20 2018, 8:13 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Desmon Catlett Curtis T. Hill, Jr.
Pendleton, Indiana Attorney General of Indiana
Ellen H. Meilaender
Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Desmon Catlett, December 20, 2018
Appellant-Petitioner, Court of Appeals Case No.
82A04-1710-PC-2460
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Hon. Robert J. Pigman,
Appellee-Respondent. Judge
Trial Court Cause No.
82D03-1208-PC-22
Bradford, Judge.
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Case Summary
[1] In 2006, Desmon Catlett was convicted of Class A felony voluntary
manslaughter and Class B felony unlawful possession of a firearm by a serious
violent felon (“SVF”) and sentenced to forty-five years of incarceration. In
2012, Catlett petitioned for post-conviction relief (“PCR”), claiming that his
trial counsel had been ineffective for allegedly failing to inform him of plea
offers the State made before his trial. The post-conviction court ordered that
the case be tried upon affidavits and denied Catlett’s PCR petition in full.
Catlett contends that the post-conviction court abused its discretion in failing to
hold an evidentiary hearing and erred in concluding that he had not received
ineffective assistance of trial counsel (“IAC”). Because we disagree, we affirm.
Facts and Procedural History
[2] The underlying facts of this post-conviction proceeding were related by this
court on direct appeal:
In January of 2005, Catlett began dating Regina Hardiman.
Hardiman had two sons: 14 year-old Te.J., and 12 year-old Tr.S.
In early March of 2005, Catlett and Hardiman ended their dating
relationship, and Hardiman began dating Tommy Jones, who
was Te.J.’s father. On April 2, 2005, Jones drove Te.J. and Tr.S.
from Hardiman’s house to baseball practice. Later that
afternoon, Jones returned—with his 13 year-old daughter D.S. in
the car—to pick up the boys. On the way to Hardiman’s house,
Jones saw Catlett in a vehicle; he honked at the vehicle, then
turned around and followed it into the parking lot of an
apartment complex. It was approximately 5:00 p.m.
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Jones parked next to the vehicle, exited his own, and approached
the passenger side of the other vehicle—where Catlett was sitting.
According to D.S., Jones and Catlett “had words” and it
“sounded like [Jones] was angry.” Catlett extended his hand, but
Jones refused to shake it. Jones struck Catlett and then tried to
pull him out of the car. Te.J. went over and “tried to stop”
Jones. Te.J. saw that Catlett had a gun and then heard a
gunshot. Jones ran around the back of the vehicles, yelling to
Te.J., Tr.S., and D.S. “to get down.” Catlett ran after him, firing
a second shot. Jones ran between two apartment buildings.
Catlett followed, firing a third shot. The children heard the shots
and saw Jones fall to the ground. Catlett walked back toward
them. D.S. asked if her father was dead, and Catlett “said, I
don’t know.” Catlett walked toward Te.J. and Tr.S. “waving the
gun” around, and then ran away.
An apartment resident called 9-1-1; both police and fire
department personnel were on the scene within minutes. A fire
department paramedic attempted to treat Jones, despite being
unable to detect any pulse or respiration by Jones.
On April 4, 2005, the State filed an information charging Catlett
with murder and [SVF], a class B felony. Catlett was tried by jury
on April 24–26, 2006. Te.J., Tr.S., and D.S. testified to the
above facts, and apartment residents testified to having seen
Jones running from Catlett. […] Forensic pathologist Mark
LeVaughn testified that Jones died of multiple gunshot wounds,
with the “fatal wound being a close range wound to the back of
the head.”
Catlett v. State, No. 82A01-0607-CR-313, slip op. at 2–4 (Ind. Ct. App. March
13, 2007).
[3] In April of 2005, the State charged Catlett with murder and Class B felony SVF,
and attorney A. Kissinger was appointed to represent him. On August 19,
2005, the State sent a letter to Kissinger in which it made a plea offer which
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would have required Catlett to (1) plead guilty to murder and SVF and (2) help
the police find the gun that was used to commit the murder in exchange for an
agreement that the sentences would run concurrently but be otherwise at the
discretion of the trial court. The chronological case summary indicates that
Kissinger last appeared in court on behalf of Catlett on October 5, 2005, and,
on November 29, it was noted that Kissinger had passed away. On December
5, 2005, attorney D. Brinkmeyer entered his appearance for Catlett. On April
26, 2006, Catlett was convicted of Class A felony voluntary manslaughter and
Class B felony SVF. The trial court imposed an aggregate forty-five-year
sentence.
[4] In August of 2012, Catlett filed a PCR petition, raising several claims of IAC
and freestanding error. On January 26, 2015, the State Public Defender
withdrew from representation. On January 27, 2017, the post-conviction court
ordered the parties to submit the case by affidavit. On April 3, 2017, Catlett
filed his affidavit, which contained no averments tending to support his claims
but in which he argued that an evidentiary hearing was necessary for him to
establish his claims.
[5] The same day, Catlett filed an amended PCR petition in which he added a
claim of IAC for allegedly failing to communicate plea offers. Catlett also filed
a motion for discovery from the State requesting information on any plea offers
that were made and filed requests for subpoenas for his trial counsel (requesting
his client file), appellate counsel (to testify about the post-conviction claims),
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and his former post-conviction counsel (to testify about any plea offers found in
the record).
[6] Catlett’s trial counsel filed a response stating that he never had access to the
predecessor counsel’s file and that his own files were destroyed after ten years in
accordance with policy when no request had been made for them, so he no
longer had a file for Catlett. In June of 2017, Catlett moved to compel
responses to requests for admissions/interrogatories, which the post-conviction
court denied as moot because they had already been granted. In August of
2017, Catlett again requested an evidentiary hearing, which request the post-
conviction court denied.
[7] On September 29, 2017, the post-conviction court denied Catlett’s PCR petition
in full. With respect to the allegation that trial counsel failed to communicate
plea offers, the post-conviction court found that Catlett had failed to:
identify the omitted offers or provide any evidence of the nature
of the offers or the likelihood and reasons [Catlett] would have
accepted a plea offer rather than proceeding to a trial by jury.
The Court is under no obligation to believe [Catlett]’s
unsupported allegation that plea offers [Catlett] would have
accepted were not communicated to him. Therefore, [Catlett]
has not sufficiently established this claim by a preponderance of
the evidence.
App. Vol. II p. 162.
Discussion and Decision
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Standard of Review
[8] Our standard for reviewing the denial of a PCR petition is well-settled:
In reviewing the judgment of a post-conviction court, appellate
courts consider only the evidence and reasonable inferences
supporting its judgment. The post-conviction court is the sole
judge of the evidence and the credibility of the witnesses. To
prevail on appeal from denial of post-conviction relief, the
petitioner must show that the evidence as a whole leads
unerringly and unmistakably to a conclusion opposite to that
reached by the post-conviction court. […] Only where the
evidence is without conflict and leads to but one conclusion, and
the post-conviction court has reached the opposite conclusion,
will its findings or conclusions be disturbed as being contrary to
law.
Hall v. State, 849 N.E.2d 466, 468, 469 (Ind. 2006) (internal citations and
quotations omitted).
I. Denial of Evidentiary Hearing
[9] Pursuant to Post-Conviction Rule 1(9)(b),
[i]n the event petitioner elects to proceed pro se, the court at its
discretion may order the cause submitted upon affidavit. It need
not order the personal presence of the petitioner unless his
presence is required for a full and fair determination of the issues
raised at an evidentiary hearing.
Affidavits constitute sworn testimony and are competent evidence in post-
conviction proceedings. Smith v. State, 822 N.E.2d 193, 201 (Ind. Ct. App.
2005), trans. denied. “[I]f the PCR court orders the cause submitted by affidavit
under Rule 1(9)(b), it is the court’s prerogative to determine whether an
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evidentiary hearing is required, along with the petitioner’s personal presence, to
achieve a ‘full and fair determination of the issues raised.’” Id. Thus, the
decision whether to hold a hearing, like the decision to order the cause
submitted by affidavit, is “best left to the PCR court’s discretion.” Id. “An
abuse of discretion occurs if the decision is clearly against the logic and effect of
the facts and circumstances before the court, or the reasonable, probable, and
actual deductions to be drawn therefrom.” McElfresh v. State, 51 N.E.3d 103,
107 (Ind. 2016) (internal quotations and citations omitted).
[10] Catlett has failed to show that the post-conviction court abused its discretion in
ordering the case to be submitted upon affidavit. Catlett’s sole substantive
claim is that he received IAC when his trial counsel allegedly failed to inform
him of plea offers. Catlett, however, points to nothing in the record supporting
his contention that an evidentiary hearing was required to fully and fairly
evaluate this claim. Catlett’s general assertion that he required an evidentiary
hearing is simply not enough. Catlett has failed to establish that the post-
conviction court abused its discretion in ordering the cause be submitted upon
affidavit.
[11] Catlett mentions the post-conviction court’s denial of his redundant request for
admissions and to answer interrogatories and seems to argue that he was
thereby denied the right to present evidence on his behalf, an alleged wrong that
an evidentiary hearing presumably would have somehow righted. For several
reasons, the denial of Catlett’s request did not prejudice him in any way. First,
the request was only denied as moot because a previous one had already been
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granted. Second, Brinkmeyer, in fact, responded to the first request. Third,
there is no reason to believe that calling Brinkmeyer to the stand at an
evidentiary hearing would have helped, as Brinkmeyer no longer had his file for
Catlett and had never had access to Kissinger’s notes or records. The trial
court’s denial of Catlett’s request for admissions and to answer interrogatories
did not give rise to the need for an evidentiary hearing.
[12] Catlett also suggests that the trial court clerk improperly recorded filings to the
wrong chronological case summary and that “either the clerk or the court had
that file destroyed, shortly after Catlett filed his notice of appeal.” Appellant’s
Br. p. 7. Catlett, however, does not identify the filings to which he is referring
or the file that was allegedly improperly destroyed. Catlett’s unsubstantiated
insinuations of misconduct do not support a conclusion that an evidentiary
hearing was required in this case.
II. IAC
[13] We review claims of IAC based upon the principles enunciated in Strickland v.
Washington, 466 U.S. 668 (1984):
Under [Strickland], a claim of [IAC] requires a showing that: (1)
counsel’s performance was deficient by falling below an objective
standard of reasonableness based on prevailing professional
norms; and (2) counsel’s performance prejudiced the defendant
so much that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 687, 694, 104 S. Ct. 2052;
Lowery v. State, 640 N.E.2d 1031, 1041 (Ind. 1994). […] Failure
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to satisfy either prong will cause the claim to fail. Vermillion v.
State, 719 N.E.2d 1201, 1208 (Ind. 1999).
French v. State, 778 N.E.2d 816, 824 (Ind. 2002).
[14] As mentioned, Catlett claims that Brinkmeyer was ineffective for allegedly
failing to communicate plea offers to him. There is, however, absolutely no
support in the record for this claim, as the affidavit filed by Catlett did not
contain any factual assertions supporting it. Specifically, the affidavit did not
contain assertions that Brinkmeyer did not tell him about the August 19, 2005,
plea offer or that Catlett would have accepted the offer if Brinkmeyer had told
him about it.1 There is no evidence to support a claim of deficient performance.
[15] Moreover, even if we assume that Catlett was not informed of the offer but
would have accepted it had he known of its existence, he does not even claim,
much less establish, that he suffered any prejudice. In any event, we do not
believe that it would be possible to make such a showing in this case. The
minimum sentence for murder in 2005 was (as it is today) forty-five years of
incarceration, the same length as the aggregate sentence the trial court imposed
after Catlett’s trial, so there is no possibility that accepting the State’s offer
would have resulted in a shorter sentence. We do not see a way that Catlett
1
Catlett also does not claim that Kissinger failed to tell him about the plea offer, even though Kissinger was
his trial counsel at the time and represented him for at least several weeks after the offer was made before
Brinkmeyer took over the case.
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could have been prejudiced under the circumstances. Catlett has failed to
establish IAC.
[16] The judgment of the post-conviction court is affirmed.
Bailey, J., and Brown, J., concur.
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