MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Nov 07 2016, 9:19 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana
Joanna Green Justin F. Roebel
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Theodore T. Schwartz, November 7, 2016
Appellant-Petitioner, Court of Appeals Case No.
02A03-1602-PC-279
v. Appeal from the
Allen Superior Court
State of Indiana, The Honorable
Appellee-Respondent. Frances C. Gull, Judge
Trial Court Cause No.
02D06-1109-PC-116
Kirsch, Judge.
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[1] Theodore T. Schwartz (“Schwartz”) appeals the post-conviction court’s partial
denial of his petition for post-conviction relief. On appeal, he raises the
following consolidated, restated, and reordered issues:
I. Whether Schwartz received ineffective assistance of both trial
and appellate counsel; and
II. Whether Schwartz entered his guilty plea knowingly,
intelligently, and voluntarily.
[2] We affirm.1
Facts and Procedural History
[3] The facts supporting Schwartz’s convictions as set forth by this court in an
unpublished memorandum decision on his direct appeal are as follows:
On August 19, 2009, Schwartz escaped from the Berne Police
Station. He went to J.H.’s house in Allen County where he had
previously done restoration work on her barn. Schwartz parked
the car he was driving behind J.H.’s barn and broke into her
house. When J.H. returned home from work at 6:15 p.m., she
unlocked the door, and Schwartz accosted her. Schwartz
grabbed J.H. and told her to give him money. J.H. told Schwartz
her money was in her car, and he led her outside. J.H. gave
Schwartz the money from her purse. When Schwartz tried to get
J.H. to go back inside, a struggle ensued. Schwartz struck J.H. in
the face, causing her head to go through the glass window. He
1
We commend the post-conviction relief court on its thorough findings, which greatly facilitated our
appellate review.
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also placed his hands on J.H.’s throat, causing her to
momentarily stop breathing.
Schwartz forced J.H. back into the house, retrieved a knife from
the kitchen, and forced her upstairs. Schwartz cut off some of
J.H.’s clothing with the knife, fondled her, forced her to perform
oral sex on him, and performed oral sex on her. Schwartz also
forced J.H. to have intercourse with him. At one point, Schwarz
put a pillow over J.H.’s head and tied a bandana around her
mouth to keep her from screaming. J.H. believed she was going
to die. After the sexual assault, Schwartz attempted to tie up
J.H. with a belt and the reins from a horse bridle. He also tried
to lock her in a closet.
In the meantime, J.H.’s mother, who lived nearby, saw the
strange car parked behind the barn and J.H. struggling outside.
J.H.’s mother investigated and sought help from neighbors, who
called police. When police arrived, Schwartz jumped out of a
second story window, stole J.H.’s car, and fled. Schwartz was
eventually apprehended in Wells County.
Schwartz v. State, No. 02A05-1010-CR-714, 2011 WL 1204832, at *1 (Ind. Ct.
App. Mar. 31, 2011) (footnotes omitted), trans. denied.
[4] On October 8, 2009, the State charged Schwartz with fifteen felony counts.
Schwartz was initially represented by a public defender; however, attorney
Stanley Campbell (“Campbell”) was later hired to represent Schwartz during
his plea proceedings. During an August 20, 2010 guilty plea hearing, the trial
court questioned Schwartz concerning his mental health. Schwartz informed
the trial court that he was being treated for depression, but was able to
understand the proceedings, was able to assist in his defense, was not under the
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influence of drugs or alcohol, and was competent to enter a plea. Guilty Plea Tr.
at 5-6. The trial court also informed Schwartz of the charges against him and
the rights he would be giving up by pleading guilty. That same day, Schwartz
pleaded guilty to: Count 1, rape as a Class A felony (armed with a deadly
weapon); Count 2, criminal deviate conduct as a Class A felony (armed with a
deadly weapon); Count 3, criminal deviate conduct as a Class A felony (armed
with a deadly weapon); Count 4, burglary as a Class A felony (resulting in
bodily injury); Count 5, robbery as a Class A felony (resulting in serious bodily
injury); Count 6, criminal confinement as a Class B felony (armed with a
deadly weapon); Count 7, battery as a Class C felony (resulting in serious
bodily injury); Count 9, strangulation, a Class D felony; and Count 10, auto
theft as a Class D felony. Sentencing was left to the trial court’s discretion.
There was no agreement as to: Count 8, forgery, a Class C felony; Count 11,
receiving stolen auto parts as a Class D felony; Count 12, dealing in
methamphetamine as a Class B felony; Count 13, possession of
methamphetamine as a Class D felony; Count 14, possession of chemical
reagents with intent to manufacture methamphetamine as a Class D felony; and
Count 15, possession of a controlled substance as a Class D felony. Following
a sentencing hearing, Schwartz was committed to the Indiana Department of
Correction for an aggregate sentence of 100 years.
[5] In arriving at the sentence, the trial court considered Schwartz’s guilty plea to
be a mitigating factor and his criminal history to be neither a mitigator nor a
significant aggravator. The trial court rejected Schwartz’s argument that his
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methamphetamine use was a mitigating factor, reasoning that Schwartz had a
history of substance abuse, and his claim—that drug use prevented him from
knowing what he was doing—lacked credibility. The trial court considered the
offenses to be either property-related or sex-related.2 The trial court sentenced
Schwartz to fifty years for the property-related offenses, consisting of fifty years
each for the burglary and robbery convictions and one and one-half years for
the auto theft conviction, all of which were to be served concurrently.
Sentencing Tr. at 49.3 The trial court sentenced Schwartz to fifty years on each
of the Class A felony sex-related convictions, ten years on the criminal
confinement conviction, and one and one-half years on the strangulation
conviction and ordered those sentences to be served concurrent with each other.
The trial court entered no sentence for the battery, merging that conviction into
the robbery. The trial court justified this sentence on the basis of the nature of
the offenses, i.e., the brutality and injury suffered by J.H., and the number of
different offenses, and noted that the sentence was “far from a maximum.” Id.
at 50. The trial court then ordered the sentences for the two groups of offenses
to be served consecutively and committed Schwartz to the Indiana Department
2
On direct appeal, our court noted, “Although the judgment of conviction groups the offenses slightly
differently, both the sentence announced at the sentencing hearing and the judgment of conviction categorize
the offenses into two consecutive groups, totaling 100 years.” Schwartz, 2011 WL 1204832, at *2 n.2.
3
At the post-conviction relief hearing, the State introduced trial court records, such as transcripts from the
guilty plea hearing and sentencing hearing and exhibits from the direct appeal, as Exhibits 1 and 2. Because
those documents are separately bound, for clarity, we omit the reference to PCR Ex. and cite to them by
name.
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of Correction for a period of 100 years. At the conclusion of the sentencing
hearing, Counts 8, 11, 12, 13, 14, and 15 were dismissed.
[6] Schwartz filed a direct appeal and, again, was represented by Campbell. There,
Schwartz alleged that the trial court abused its discretion by relying on facts not
supported by the record to establish aggravating circumstances and by finding
his addiction was not a mitigating circumstance. Schwartz also argued that his
sentence was inappropriate in light of the nature of the offenses and the
character of the offender. Our court affirmed Schwartz’s 100-year sentence.
Schwartz, 2011 WL 1204832, at *5.
[7] In November 2014, Schwartz filed “Amendment to Petition for Post-
Conviction Relief,”4 alleging ineffective assistance of trial counsel, ineffective
assistance of appellate counsel, and that his guilty plea was not knowing,
intelligent, and voluntary. Schwartz alleged that Campbell rendered ineffective
assistance as trial counsel when he: (1) failed to ask the State to eliminate
alleged “double jeopardy enhancements,” such as use of the knife and bodily
injury; (2) failed to argue that J.H.’s injuries did not constitute serious bodily
injury; (3) failed to argue that Schwartz did not use the knife throughout the
four crimes for which it was used as an enhancement; and (4) allowed Schwartz
to plead guilty while a competency evaluation was pending in another county.
Id. at 59-60, 247-48. Schwartz also alleged that Campbell rendered ineffective
4
Schwartz, acting pro se, had initially filed a petition for post-conviction relief in September 2011. The
November 14, 2014 filing was an amendment to that petition. Appellant’s Br. at 6.
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assistance as appellate counsel when he: (1) waived the issue of whether J.H.’s
injuries constituted serious bodily injury; (2) failed to argue alleged double
jeopardy violations; and (3) failed to include, as evidence on appeal the five
character letters written in support of Schwartz and offered during sentencing.
Id. at 61, 248. Finally, Schwartz alleged that his plea was not knowing,
intelligent, and voluntary because he did not understand the definition of
serious bodily injury or the double jeopardy implications of his plea. Id.
[8] At the April 2015 post-conviction relief (“PCR”) evidentiary hearing, Schwartz
offered the records pertaining to his guilty plea proceedings and his direct
appeal, as well as records pertaining to J.H.’s medical examination following
the attack. Schwartz also offered the testimony of two witnesses, attorneys
Larry Mock (“Mock”) and Campbell. Mock, who had represented Schwartz in
a Wells County case around the same time as the instant offense, testified that
he had filed a request in January 2010 for appointment of medical experts “to
determine [Schwartz’s] ability to assist in his defense” in that separate action.
Pet’r’s PCR Ex. 3. Campbell knew that a competency evaluation had been
requested in Schwartz’s Wells County case. Schwartz asserted that his trial
counsel was ineffective for failing to determine he was competent prior to
allowing him to plead guilty.
[9] Campbell represented Schwartz during his guilty plea proceedings, at
sentencing, and on direct appeal. During the PCR hearing, Campbell testified
that he did not recall discussing with the prosecutor as part of plea negotiations
the issues of double jeopardy or whether the serious bodily injury enhancement
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was supported by the evidence. PCR Tr. at 15-16. However, Campbell did
recall that there had been three different plea agreements offered and that the
prosecutor “was pretty entrenched in her position in terms of a plea offer” and
did not seem inclined to dismiss charges.5 Id. at 16. The prosecutor wanted to
establish a minimum sentence, or floor, of around fifty years for the plea
agreement, while Schwartz wanted an agreement with a sentence of thirty to
thirty-five years. Accordingly, Campbell’s discussion with the prosecutor
focused on eliminating or reducing the sentence floor. Schwartz eventually
decided to plead guilty to nine counts. Campbell testified that it was his
strategy “that if the State wanted to go forward with the remaining [six] Counts
they could do that, but ultimately, as we hoped they would, [the State] ended
up dismissing those Counts that [Schwartz] hadn’t pled guilty to.” Id. at 17.
Regarding his representation of Schwartz on appeal, Campbell explained that
he did not include the character letters written in support of Schwartz for the
purposes of sentencing because “it wasn’t the focus of the attack we were
making on appeal.” Id. at 21.
[10] Following the hearing, the PCR court granted partial relief, concluding that
Schwartz correctly asserted that “although the victim suffered bodily injury, it
5
The only change the prosecutor agreed to was a modification of the plea agreement to allow Schwartz to
plead guilty to possession of methamphetamine, instead of dealing in methamphetamine, as charged. PCR
Tr. at 25.
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does not appear to have met the statutory definition of serious bodily injury.”
Pet’r’s PCR App. at 210. The PCR court reasoned:
The evidence submitted by Petitioner at the post-conviction
hearing [Findings of Fact, number 13] 6 is sufficient to meet his
burden of proving, by a preponderance of the evidence, that the
victim did not suffer serious bodily injury. This evidence was
available to Attorney Campbell in the original proceeding.
Petitioner correctly maintains that Attorney Campbell could and
should have used this evidence to obtain a reduction of the
Robbery charge to a Class C felony and of the Battery charge to a
Class A misdemeanor.
Id.
[11] The PCR court noted that this evidence was available to Campbell on direct
appeal and, had Campbell raised that issue, this court would have granted
relief. Accordingly, the PCR court: (1) changed Schwartz’s conviction for
Count 5 robbery from a Class A to a Class C felony, reducing the sentence from
fifty years to eight years; and (2) changed his conviction for Count 7 battery
from a Class C felony to a Class A misdemeanor. Although no initial sentence
was entered on the battery because it was merged, the PCR court reduced that
6
The post-conviction court’s Findings of Fact Number 13, in pertinent part provided:
At the post-conviction hearing, Petitioner submitted evidence establishing that, when taken to
the hospital after the attack, the victim complained of little pain; she had numerous lacerations
and abrasions, but no fractures or other injuries.
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sentence to one year.7 Id. The PCR court denied relief to Schwartz on all other
issues. Schwartz now appeals.
Discussion and Decision
[12] Schwartz contends that the PCR court erred in failing to grant him full relief.
PCR proceedings do not afford the petitioner an opportunity for a super appeal,
but rather, provide the opportunity to raise issues that were unknown or
unavailable at the time of the original trial or the direct appeal. Ben-Yisrayl v.
State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164 (2002);
Wieland v. State, 848 N.E.2d 679, 681 (Ind. Ct. App. 2006), trans. denied, cert.
denied, 549 U.S. 1038 (2006). The proceedings do not substitute for a direct
appeal and provide only a narrow remedy for subsequent collateral challenges
to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The PCR petitioner bears the
burden of proving the grounds by a preponderance of the evidence. Ind. Post-
Conviction Rule 1(5).
[13] When appealing the denial of post-conviction relief, the petitioner stands in the
position of one appealing from a negative judgment. Hubbell v. State, 58 N.E.3d
268, 274 (Ind. Ct. App. 2016). The petitioner must establish that the evidence
as a whole unmistakably and unerringly leads to a conclusion contrary to that
7
During sentencing, the State noted that the battery conviction had to be merged into the robbery conviction,
stating, “I think the battery is the serious bodily injury which is basically the facial injury when she got
shoved through the window which is right in the proximity when he's demanding the money and she doesn't
provide him with enough money.” Sentencing Tr. at 36-37. The trial court agreed it was appropriate to merge
the offense and entered no sentence for the battery conviction. Id. at 50.
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of the PCR court. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007),
trans. denied. We will disturb a PCR court’s decision as being contrary to law
only where the evidence is without conflict and leads to but one conclusion,
and the PCR court has reached the opposite conclusion. Wright v. State, 881
N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans. denied. The PCR court is the
sole judge of the weight of the evidence and the credibility of witnesses. Lindsey
v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied. We accept that
court’s findings of fact unless clearly erroneous, but we accord no deference to
conclusions of law. Fisher, 878 N.E.2d at 463.
I. Ineffective Assistance of Counsel
[14] Schwartz claims that the PCR court erred by concluding that he received
effective assistance of both trial and appellate counsel. To prevail on a claim of
ineffective assistance of counsel, a petitioner must demonstrate both that his or
her counsel’s performance was deficient—that is, that counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed to
defendant by the Sixth and Fourteenth Amendments—and that the petitioner
was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S.
668, 687 (1984); Black v. State, 54 N.E.3d 414, 424 (Ind. Ct. App. 2016), trans.
denied. Counsel’s performance is deficient if it falls below an objective standard
of reasonableness based on prevailing professional norms. Black, 54 N.E.3d at
424. To meet the appropriate test for prejudice, the petitioner must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Id. “A reasonable
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probability is a probability sufficient to undermine confidence in the outcome.”
Id. Failure to prove either that counsel was defective or that petitioner was
prejudiced will cause petitioner’s claim to fail. Id.
[15] “When considering a claim of ineffective assistance of counsel, a ‘strong
presumption arises that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment’”; a
defendant must offer strong and convincing evidence to overcome this
presumption. Black, 54 N.E.3d at 424-25 (quoting Morgan v. State, 755 N.E.2d
1070, 1073 (Ind. 2001)). Evidence of isolated poor strategy, inexperience, or
bad tactics will not support a claim of ineffective assistance of counsel. Id. The
two prongs of the Strickland test are separate and independent inquiries.
Manzano v. State, 12 N.E.3d 321, 325 (Ind. Ct. App. 2014), trans. denied, cert.
denied, 135 S. Ct. 2376 (2015). “Thus, if it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
course should be followed.” Id. (internal quotation marks omitted).
A. Trial Counsel
[16] Schwartz argues that trial counsel provided ineffective assistance during plea
negotiations, the guilty plea hearing, and the sentencing hearing. Specifically,
Schwartz contends that trial counsel should have challenged: (1) that J.H.’s
injuries did not meet the statutory definition of serious bodily injury to elevate
the crimes of robbery and battery; (2) that enhancing the crimes of rape,
criminal deviate conduct, and confinement all on the basis of Schwartz being
armed with a deadly weapon (the knife) violated double jeopardy principles;
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and (3) the same bodily injury could not be used to elevate the three charges of
burglary, robbery, and battery. Further, he contends that trial counsel should
have ensured that Schwartz was competent to plead guilty.
[17] Schwartz pleaded guilty to three offenses that were enhanced by bodily injury
(burglary) or serious bodily injury (robbery and battery). Schwartz suggests two
ways in which trial counsel was ineffective in connection with these charges.
First, trial counsel failed to recognize that the evidence did not support a
finding that J.H. suffered serious bodily injury, and second, trial counsel failed
to argue that the same bodily injury that enhanced the burglary count was also
used to enhance both the robbery and the battery counts. The PCR court
agreed with Schwartz’s first claim, and the State conceded that trial counsel was
ineffective for not raising the improper use of the “serious bodily injury”
enhancement. Appellant’s App. at 210. Accordingly, the PCR court removed
the serious bodily injury enhancement from the two counts and reduced
Schwartz’s robbery conviction to a Class C felony and his battery conviction to
a Class A misdemeanor. Id.
[18] The PCR court, however, did not agree with Schwartz’s claim that trial counsel
was ineffective for failing to argue that the same bodily injury was improperly
used to enhance the charges of burglary, robbery, and battery. We recognize
that charges based on the same bodily injury cannot stand, Owens v. State, 897
N.E.2d 537, 539 (Ind. Ct. App. 2008); however, we agree with the PCR court
that J.H. suffered injuries that were separate in time and location. The evidence
supporting Schwartz’s Class A burglary conviction was that Schwartz admitted
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he broke into J.H.’s dwelling, with intent to commit a felony therein, and the
felony resulted in bodily injury—bruises to J.H.’s shoulder and bruises and pain
to her back. Sentencing Tr. at 33. Schwartz’s conviction for Class A
misdemeanor battery was supported by his admission that he knowingly or
intentionally touched J.H. in a rude insolent or angry manner, resulting in
bodily injury—a facial injury caused when Schwartz shoved J.H.’s head into a
glass window. Id. at 34. Finally, Schwartz’s conviction for Class C robbery
required no injury. That conviction was supported by Schwartz’s admission
that he knowingly or intentionally took money from J.H. by using or
threatening the use of force or by putting J.H. in fear while he forcibly took J.H.
to her car to retrieve her purse. These three convictions did not rely on an
improper bodily injury enhancement. Trial counsel was not ineffective for
failing to challenge the bodily injury enhancements.
[19] Schwartz next argues that trial counsel was ineffective for not questioning the
use of the enhancement “armed with a deadly weapon [, the knife,]” to elevate
the seriousness of the charges of rape, criminal confinement, and two counts of
criminal deviant conduct. During the PCR hearing, Schwartz maintained that
trial counsel was ineffective for failing to argue that the knife was not used
repeatedly and, therefore, should not have enhanced four separate counts. PCR
Tr. at 15, 16 & 20. As support for his position, Schwartz pointed to the State’s
comment, during sentencing, that Schwartz “used the knife to cut off [J.H.]’s
clothes in order to facilitate his sexual acts.” Appellant’s Br. at 11 (citing
Sentencing Tr. at 35). The State countered, offering J.H.’s sentencing testimony
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that “the knife always was present,” and J.H. “felt that he could do anything at
any time.” Sentencing Tr. at 25.
[20] The PCR court agreed with the State, reasoning:
The victim’s statement that the knife “was always present,” and,
along with Petitioner’s rage, “ruled [her] behavior” [Findings of
Fact, number 10], supports a rational inference that Petitioner did
use the knife in the course of forcing the victim to submit to all the
charged sex offenses and the confinement. In this regard,
Petitioner’s case is comparable to Marshall v. State, 832 N.E.2d
615 (Ind. Ct. App. 2008), trans. denied. In [that] case, Marshall
held a knife to the 13 year old victim’s throat once, and
committed three different acts of molestation. Marshall appealed
the convictions on three counts of Class A felony child molesting,
asserting all three should not have been elevated to Class A
felonies because he did not use the knife repeatedly. The Court
of Appeals succinctly disagreed: “Although Marshall only held
his knife to D.N’s throat once, it is not as if Marshall needed to
remind D.N. of the knife’s presence as he used the threat of the
knife to facilitate each independent molestation.” It is clear from
the victim’s statement that Petitioner did not need to remind
[J.H.] of the knife’s presence as he used the threat of the knife to
facilitate each sex offense and the confinement. Petitioner has
not shown a reasonable probability that Attorney Campbell could
have succeeded in obtaining a reduction of the class of any of the
Class A felony sex offenses or the Class B confinement offense,
by any means. Attorney Campbell cannot be found ineffective
for failing to do so.
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Pet’r’s PCR App. at 210-11 (emphasis added) (internal citations omitted).
Schwartz has not proved that trial counsel was ineffective for failing to raise a
claim of improper enhancement based on the use of the knife. 8
[21] Moreover, Schwartz has not proven that he was prejudiced by trial counsel’s
actions during plea negotiations, guilty plea hearing, or sentencing. To show
prejudice resulting from deficient performance in plea negotiations, a petitioner
for post-conviction relief must show a reasonable probability that the end result
of the criminal process would have been more favorable by reason of a lesser
charge or a sentence of less prison time. Missouri v. Frye, 132 S. Ct. 1399, 1409
(2012). Schwartz argues that he was prejudiced by trial counsel’s failure to raise
the above issues during plea negotiations because, if trial counsel had effectively
attacked these improper enhancements, the severity of the crimes would have
been reduced, and the State would have been negotiating from a weaker and
certainly different sentencing position. Appellant’s Br. at 11.
[22] Here, Schwartz cannot show he was prejudiced by his trial counsel’s conduct
during plea negotiations, Schwartz cannot establish prejudice because there is
no evidence that the end result of the criminal process would have been more
8
See also Sistrunk v. State, 36 N.E.3d 1051 (Ind. 2015). There, acting sua sponte, our Supreme Court,
reversing this court, held that it was not improper to enhance both of defendant’s convictions for robbery and
criminal confinement from Class C to Class B felonies on the basis of the same evidence, namely, defendant’s
act of being armed with a deadly weapon. Id. at 1054. Therefore, we agree with the State that, even if
Schwartz could prove that he did not repeatedly threaten J.H. with the knife, “[M]ultiple enhancements
would still be proper if the victim complied with his subsequent demands due to the original threat by a
deadly weapon.” Appellee’s Br. at 21.
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favorable by reason of a lesser charge or a sentence of less than 100 years. First,
the trial court imposed a 100-year sentence, which was ten years more than the
State had requested. Second, the PCR court was convinced that the prosecutor
was “pretty entrenched” and refused to drop any charges, and Campbell did not
make much progress in his attempt to get the State to reduce Schwartz’s
charges. Pet’r’s PCR App. at 207. Third, even though the PCR court reduced
the severity and sentence for Schwartz’s robbery and battery convictions, the
PCR court found no reason to reduce Schwartz’s sentence of 100 years;
Schwartz remained guilty of Class A felony rape, two counts of Class A felony
criminal deviate conduct, and one count of Class A felony burglary, among
other crimes. There is no evidence that trial counsel prevented him from
getting a better plea offer or a lesser sentence. No prejudice was shown.
[23] To show prejudice in the guilty plea context, Schwartz had to prove that but for
trial counsel’s deficient performance, he would not have pleaded guilty and
would likely have succeeded at trial. Manzano, 12 N.E.3d at 326. Here, the
case against Schwartz was very strong. There was no question that Schwartz
was the man who committed the crimes; he had worked for J.H., so his identity
was known. Further, Schwartz knew the severity of the crimes and the injuries
he had caused. Prior to entering his plea, the trial court informed Schwartz that
his five Class A felonies carried a sentencing range of twenty to fifty years with
a thirty-year advisory; his one Class B felony carried a range of six to twenty
years with an advisory of ten; his one Class C felony carried a range of two to
eight years with an advisory of four years; and his two Class D felonies carried
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a range of six months to three years with an advisory of one and one-half years.
Guilty Plea Tr. at 12-13. The trial court also informed Schwartz, “Indiana law
provides for aggravating circumstances that may be considered by the Court at
sentencing and that in considering such aggravating circumstances the Court
could impose consecutive terms of imprisonment for multiple offenses.” Id. at
14. Schwartz pleaded guilty to nine of the fifteen counts without a plea
agreement. The remaining six counts were dismissed. Even if we ignore
Counts 5 and 7 and consider only the remaining convictions, Schwartz was
guilty of four Class A felonies, one Class B felony, and two Class D felonies.
The advisory sentence for each of those crimes, served consecutively,
constituted an aggregate sentence of 133 years. There is no evidence that but
for trial counsel’s claimed deficient performance, Schwartz would not have
pleaded guilty and would likely have succeeded at trial. Manzano, 12 N.E.3d at
326. Additionally, there is no evidence that Schwartz could have negotiated a
better plea, no prejudice was proven.
[24] To prove prejudice in the sentencing context, Schwartz had to prove that
counsel’s deficient performance deprived him of a substantive or procedural
right. Schwartz claims that trial counsel’s ineffective representation resulted in
a sentence of 100 years. Schwartz’s arguments regarding prejudice from
ineffective assistance of counsel for sentencing are essentially the same as the
issues already addressed with regard to assistance of counsel during plea
negotiations and the guilty plea hearing. The PCR court found that Schwartz
had “not shown any prejudice to his defense resulted in regard to the aggregate
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sentence. He is entitled to no reduction in the aggregate sentence.” Pet’r’s PCR
App. at 213. We agree with the PCR court that Schwartz was not prejudiced by
trial counsel’s representation during sentencing. First, Schwartz received relief
in the PCR court with regard to his claims regarding serious bodily injury
enhancements. Pet’r’s PCR App. at 210, 213, 222. Second, he was not entitled
to any relief on his claims regarding the deadly weapon enhancements. Third,
there is no reasonable probability that Schwartz would have received a lesser
sentence if he had presented sentencing arguments regarding the bodily injury
enhancement. Schwartz’s 100-year sentence was supported by his Class A
felony convictions for rape and burglary and his convictions for criminal
deviate conduct, robbery, criminal confinement, strangulation, and auto theft.
[25] A criminal defendant’s due process rights to a fair trial are not adequately
protected if he is not legally competent to stand trial. Drope v. Missouri, 420 U.S.
162 (1975). Schwartz argues that Campbell provided deficient representation
by allowing Schwartz to plead guilty without waiting for the Wells County
evaluations to be complete. At the PCR hearing, Mock, who had represented
Schwartz in a Wells County case around the same time as the instant offenses,
testified that, upon being appointed to the case, Schwartz “would talk about
demons being in the room with us and things of that nature,” and Mock was
unable to communicate with Schwartz about the case. PCR Tr. at 7-8. As such,
Mock filed a request in January 2010 for appointment of medical experts “to
determine [Schwartz’s] ability to assist in his defense.” Pet’r’s PCR Ex. 3. Two
doctors were appointed to evaluate Schwartz’s competency; however, Mock
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withdrew his evaluation request in October 2010 because, by then, Schwartz
could help with his case and no longer appeared to be incompetent. During the
PCR hearing, Campbell testified that he became aware that competency
evaluations had been sought in Wells County, but he did not remember
whether he spoke to Mock to inquire about Schwartz’s competence. PCR Tr. at
13-14. Campbell thought Schwartz’s use of “meth” had skewed his thought
processes, but Campbell “never had the impression that [Schwartz] was
incompetent or did not understand what they were talking about.” Pet’r’s PCR
App. at 208. Nothing Campbell observed led him to conclude that there was
any need to delay the guilty plea proceedings for a competency evaluation.
[26] The PCR court found that Campbell was not ineffective for failing to await the
outcome of a competency hearing in another case, in another county, which
was ultimately withdrawn. We agree. Observations of a defendant’s demeanor
in court provide an adequate basis for finding that no competency hearing is
needed. Brown v. State, 516 N.E.2d 29, 30 (Ind. 1987). During the guilty plea
hearing, the trial court questioned Schwartz regarding his mental health and
learned that Schwartz was being treated for depression, was taking medication,
and felt competent to participate in the proceedings. Guilty Plea Tr. at 5-6.
Campbell concurred with Schwartz’s assessment and agreed that Schwartz
understood the situation he was in, was able to assist in his defense, and was
competent to enter a plea. Id. at 6. The trial court was satisfied regarding
Schwartz’s competency and accepted his plea. Schwartz may have been
experiencing mental health issues in 2010; however, he has presented no
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evidence that they were of the type that would have rendered him incompetent
to plead guilty. Schwartz has not shown either ineffective assistance or
prejudice by his counsel’s failure to challenge his competency.
B. Appellate Counsel
[27] Schwartz next contends that the PCR court erred in finding that Campbell
provided effective assistance of appellate counsel. Specifically, he argues that
appellate counsel rendered ineffective assistance on appeal by: (1) waiving the
issue of whether J.H.’s injuries should have been used to aggravate the
sentence; (2) failing to argue alleged double jeopardy violations; and (3) failing
to include in the record on appeal the five letters supporting Schwartz’s
character.
[28] The standard of review for a claim of ineffective assistance of appellate counsel
is identical to the standard for trial counsel. Lowery v. State, 640 N.E.2d 1031,
1048 (Ind. 1994), cert. denied, 516 U.S. 992 (1995). The petitioner must establish
deficient performance by appellate counsel resulting in prejudice. Id.
“Ineffective assistance of appellate counsel claims generally fall into three basic
categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure
to present issues well.” Henley v. State, 881 N.E.2d 639, 644 (Ind. 2008). “[T]he
decision of what issues to raise is one of the most important strategic decisions
to be made by appellate counsel.” Reed v. State, 856 N.E.2d 1189, 1196 (Ind.
2006). In evaluating whether appellate counsel performed deficiently by failing
to raise an issue on appeal, we apply the following test: (1) whether the
unraised issue is significant and obvious from the face of the record; and (2)
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whether the unraised issue is “clearly stronger” than the raised issues. Henley,
881 N.E.2d at 645. For countless years, experienced advocates have
“emphasized the importance of winnowing out weaker arguments on appeal
and focusing on one central issue if possible, or at most a few key issues.”
Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997), cert. denied, 525 U.S. 1021
(1998) (citation and quotation marks omitted). Thus, when reviewing these
types of claims, we should be particularly deferential to appellate counsel’s
strategic decision to exclude certain issues in favor of other issues more likely to
result in a reversal. Id. As a result, “[i]neffective assistance is very rarely found
in cases where a defendant asserts that appellate counsel failed to raise an issue
on direct appeal.” Reed, 856 N.E.2d at 1196.
Schwartz contends the PCR court erred in finding appellate counsel was not
ineffective for failing to admit five reference letters on direct appeal. Schwartz
argues, if this court on direct appeal had understood Schwartz’s character
outside his addiction to drugs, it may have found the 100-year sentence was
inappropriate. The letters pertained to Schwartz’s character when he was not
on drugs, an issue that was not in dispute. The PCR court found questionable
the relevance of Schwartz’s character when he was not on drugs “in view of the
fact that he was on drugs for a significant period of time, i.e., some years before
the offenses.” Pet’r’s PCR App. at 219. The PCR court denied Schwartz’s claim
that appellate counsel was ineffective, finding unpersuasive Schwartz’s reliance
on Long v. State, 865 N.E.2d 1031 (Ind. Ct. App. 2007), trans. denied. The PCR
court cited to the following reasons why Long’s character, as set forth in the
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letters, was relevant while Schwartz’s was not. The court in Long found: (1)
Long’s character did not justify the maximum sentence, but Schwartz was not
given the maximum sentence; (2) Long’s act of voluntary manslaughter was
clearly out of character because he had no criminal history, while Schwartz had
a criminal history; (3) Long was not on drugs, but Schwartz was on drugs; and
(4) Long’s twenty-three character letters were not cumulative, while Schwartz’s
five letters were. Pet’r’s PCR App. at 219-21. Schwartz argues that these four
factors are not pertinent. However, his arguments are merely a request that we
reweigh the evidence, which we will not do. Sweet v. State, 10 N.E.3d 10, 15
(Ind. Ct. App. 2014). Appellate counsel was not ineffective for failing to offer
the character letters on direct appeal.
[29] Schwartz’s remaining ineffective assistance of appellate counsel claims
essentially echo those asserted against his trial counsel. For the reasons
previously explained herein, we find that, like trial counsel, appellate counsel
did not provide ineffective assistance to Schwartz, and Schwartz was in no way
prejudiced by appellate counsel’s representation.
II. Voluntariness of Guilty Plea
[30] Schwartz also claims that his guilty plea was not knowingly, intelligently, and
voluntarily entered because he did not understand that he was pleading guilty to
an enhancement (“serious bodily injury”) that could not be proven. Schwartz
characterizes this issue not as one of ineffective assistance of counsel, but
instead, as a question of voluntariness—the distinction being, “voluntariness
‘focuses on whether the defendant knowingly and freely entered the plea, in
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contrast to ineffective assistance, which turns on the performance of counsel
and resulting prejudice.’” Black, 54 N.E.3d at 424. In general, a defendant may
not challenge a guilty plea through direct appeal. St. Clair v. State, 901 N.E.2d
490, 492 (Ind. 2009). “The path to challenging the plea and conviction runs by
way of a petition for post-conviction relief.” Id.
[31] “The long-standing test for the validity of a guilty plea is ‘whether the plea
represents a voluntary and intelligent choice among the alternative courses of
action open to the defendant.’” Diaz v. State, 934 N.E.2d 1089, 1094 (Ind. 2010)
(quoting N. Carolina v. Alford, 400 U.S. 25, 31 (1970)). In furtherance of this
objective, the Indiana Code provides that the court accepting the guilty plea
must determine that the defendant: (1) understands the nature of the charges;
(2) has been informed that a guilty plea effectively waives several constitutional
rights, including trial by jury, confrontation and cross-examining of witnesses,
compulsory process, and proof of guilt beyond a reasonable doubt without self-
incrimination; and (3) has been informed of the maximum and minimum
sentences for the crime charged. Ind. Code § 35-35-1-2.; Diaz, 934 N.E.2d at
1094.
[32] In assessing the voluntariness of the plea, this court reviews all the evidence
before the PCR court, “including testimony given at the post-conviction trial,
the transcript of the petitioner’s original sentencing, and any plea agreements or
other exhibits which are part of the record.” Black, 54 N.E.3d at 424 (citation
omitted). Generally speaking, if a trial court undertakes these steps, a PCR
petitioner will have a difficult time overturning his guilty plea on collateral
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attack. Richardson v. State, 800 N.E.2d 639, 643 (Ind. Ct. App. 2003) (citation
omitted).
[33] Schwartz pleaded guilty to nine felony counts, including Count 5 robbery and
Count 7 battery, both of which had been elevated by the State’s allegation that
they resulted in serious bodily injury to J.H. “Serious bodily injury” is defined
in Indiana Code section 35-31.5-2-292.9 Schwartz maintains that his trial
counsel did not inform him of the meaning of that term, and therefore, he did
not know that the element of serious bodily injury could not be proven under
Counts 5 and 7. Schwartz argues, that a guilty plea “cannot be truly voluntary
unless the defendant possesses an understanding of the law in relation to the
facts.” Appellant’s Br. at 19 (quoting Henderson v. Morgan, 426 U.S. 637, 641
(1976)). As such, Schwartz claims that his pleas of guilty to robbery and battery
were not knowing, voluntary, and intelligent.
[34] Evidence that a person was “coerced or misled into pleading guilty by the
judge, prosecutor or defense counsel will present a colorable claim that their
plea was not voluntary.” Black, 54 N.E.3d at 424 (citing State v. Moore, 678
N.E.2d 1258, 1265 (Ind. 1997), cert. denied, 523 U.S. 1079 (1998)). Here, we
find no such colorable claim. Trial counsel testified that he could not recall
9
Indiana Code section 35-31.5-2-292 provides, “Serious bodily injury” means bodily injury that creates a
substantial risk of death or that causes: (1) serious permanent disfigurement; (2) unconsciousness; (3)
extreme pain; (4) permanent or protracted loss or impairment of the function of a bodily member or organ; or
(5) loss of a fetus.
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whether he had explained to Schwartz the definition of serious bodily injury.
PCR Tr. at 17. Even so, Schwartz did not testify at the PCR evidentiary hearing
that he was coerced or misled into pleading guilty.
[35] Here, the evidence against Schwartz was overwhelming. There was no
question that Schwartz was the man who committed the crimes; he had worked
for J.H. so his identity was known. Further, Schwartz also knew the severity of
the injuries he had caused. Schwartz pleaded guilty to nine of fifteen charged
felonies without a plea agreement, and the remaining six counts were
dismissed. Prior to accepting Schwartz’s plea, the trial court inquired into
Schwartz’s mental health and competency to make the plea. Guilty Plea Tr. at
5-6. The court also confirmed that Schwartz understood the nature of the
charges and that a guilty plea effectively waived certain constitutional rights.
Id. at 6-12. Finally, the trial court informed Schwartz that: his five Class A
felonies carried a sentencing range of twenty to fifty years with a thirty-year
advisory; his one Class B felony carried a range of six to twenty years with an
advisory of ten; his one Class C felony carried a range of two to eight years with
an advisory of four years; and his two Class D felonies carried a range of six
months to three years with an advisory of one and one-half years. Id. at 12-13.
Schwartz contends that his lack of knowledge about the meaning of “serious
bodily injury” meant his plea was not voluntarily or intelligently made. We
disagree, finding that Schwartz’s “plea represents a voluntary and intelligent
choice among the alternative courses of action open to [him].” See Alford, 400
U.S. at 37-38 (when plea is viewed in light of evidence, which substantially
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negated defendant’s claim of innocence and provided means by which judge
could test whether plea was intelligently entered, plea’s validity cannot be
seriously questioned).
[36] Affirmed.
May, J., and Crone, J., concur.
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