dissenting.
I respectfully dissent because I conclude that Rowe received ineffective assistance because Rowe's trial counsel did not adequately investigate Rowe's case, told Rowe that he would win, and Rowe rejected the plea agreement based upon his trial counsel's statement that he would win.
Indiana Rule of Professional Conduct 1.4(b) states that "[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." The comment to Rule 1.4 provides in part that "[the client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the *445client is willing and able to do so." See also Turner v. Calderon, 281 F.3d 851, 881 (9th Cir.2002) (holding that although a defense attorney "cannot be required to accurately predict what the jury or court might find, ... he can be required to give the defendant the tools he needs to make an intelligent decision"). The Indiana Supreme Court has held that "in order to make a reasonable tactical decision, counsel must have adequately investigated the client's case because 'strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.'" State v. Holmes, 728 N.E.2d 164, 172 (Ind.2000) (quoting Strickland v. Washington, 466 U.S. 668, 690-91, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984), reh'g denied ), reh'g denied, cert. denied, 532 U.S. 1067, 121 S.Ct. 2220, 150 L.Ed.2d 212 (2001). See also United States v. Barnes, 83 F.3d 934, 939 (7th Cir.1996) ("When a defendant considers the government's offer of a plea agreement, a reasonably competent counsel will attempt to learn all of the facts of the case and to make an estimate of a likely sentence."), cert. denied, 519 U.S. 857, 117 S.Ct. 156, 136 L.Ed.2d 101(1996).
The majority states that Rowe's trial counsel testified that Rowe "should be sue-cessful at trial." Op. at 448-44. However, the record also reveals the context of this comment. The following exchange occurred during the direct examination of Rowe's trial counsel:
Q ... And uh how did you advise [Rowe] with regard to that offer?
A ... I advised him that, that they couldn't, that we would be successful at, that we should be successful at trial....
Q Now did you tell [Rowe] you should be successful or you would be successful?
A I was, I, I was confident so I may have said the words [sic] would.
aes
Q ... Did you tell me that you advised [Rowe] that he would, the State would not be able to convict him or should not?
A Would, like, I think that's what I just clarified earlier, that I, I would have used the word would be unable to obtain a conviction on hand-to-hand buy.
Transeript at 16-19. The affidavit of Rowe's trial counsel also stated: "In counseling Mr. Rowe on whether to accept the plea agreement I advised him the State would be unable to obtain a convietion...." Petitioner's Exhibit 3 (emphasis added). Here, trial counsel did not give Rowe the information required to make an informed decision. Rather, trial counsel told Rowe that he would not be convicted at trial.
The record also reveals that Rowe's trial counsel admitted that she did not depose any of the members of the Drug Task Force before advising Rowe that he would be successful at trial. The following exchange occurred during the direct examination of Rowe's trial counsel at the post-conviction hearing:
Q. Did you use any of that audio or video to impeach the officer's testimony at trial?
A No, and that's, that's where I made the mistake. Once, once I realized that you couldn't see Mr. Rowe on any of the footage, and that you could not hear anything on the audio, I then thought that that was a win and didn't realize that the officers would say that they saw him with their own eyes, because of the log sheets that were provided by the Prosecutor that detailed exactly who was in what car. *446But I didn't, I didn't, since I thought it, uh, since I thought it a[sic} win in my head, I just left the tapes alone, which was just stupid.
Transeript at 17-18. Under the cireum-stances, I conclude that Rowe demonstrated that his trial counsel's performance was deficient. In the context of guilty pleas, the United States Supreme Court has held that the prejudice requirement "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). The record reveals that Rowe testified that he rejected the State's plea agreement based upon his trial counsel's advice that he "couldn't lose the trial, so reject the offer." Transcript at 27. Rowe also testified that had he known he "could" have been convicted based upon the evidence he would have accepted the plea agreement. Id. at 28. The affidavit of Rowe's trial counsel states: "Following my advice Mr. Rowe rejected the State's offer" Petitioner's Exhibit 3. Based upon the record, I conclude that Rowe demonstrated that his trial counsel's ineffective performance affected the outcome of the plea process and that there is a reasonable probability that, but for trial counsel's errors, the result of the proceeding would have been different.
For these reasons, I respectfully dissent.