Jeffrey Allen Rowe v. State of Indiana

Indianapolis, IN - Criminal defense attorney represented Jeffrey Allen Rowe with appealing from the denial of his petition for postconviction relief on his claim that trial counsel was ineffective for failing to

communicate to him a formal plea offer made by the State prior to his jury trial.

We do not go into great detail regarding the facts of the crime for which Rowe

was convicted, as they were set out fully in his first direct appeal. See Rowe v.

State, No. 46A03-0809-CR-439, 2009 WL 1175664 (Ind. Ct. App. Apr. 30,

2009) (Rowe I). Suffice it to say, seeking money to buy crack cocaine, on

January 21, 2007, Rowe drove with his girlfriend Bobbi Jo Lewis and another

woman to the apartment of seventy-three-year-old Robert Toutloff, who had

been a good Samaritan to Lewis in recent months. Wearing a hooded

sweatshirt, Rowe knocked on Toutloff's door and then violently forced it open

when Toutloff unlocked the deadbolt. Toutloff fell to the floor, and Rowe

jumped on top of him and began punching him in the face and head,

demanding money. The beating continued until Toutloff directed Rowe to a

drawer containing about $70. Rowe took the money and fled with the two

women. Toutloff suffered cuts to his face and neck, a broken nose, and severe

bruising on his torso. He remained in the hospital for three days.

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[4] On January 30, 2007, Rowe was charged with robbery and burglary, both as

class A felonies, and a habitual offender count was later added. Elizabeth

Flynn (Attorney Flynn) represented Rowe through the end of October 2007,

until withdrawing due to a conflict. Thereafter, Gregory Hofer (Attorney

Hofer) represented Rowe through the jury trial, which began on June 9, 2008,

and sentencing. Rowe was convicted as charged, found to be a habitual

offender, and sentenced to seventy years in prison (concurrent, forty-year terms

for each class A felony conviction and a thirty-year enhancement for being a

habitual offender).

[5] On direct appeal in Rowe I, we reduced Rowe's burglary conviction to a class B

felony based on a double jeopardy violation and remanded for resentencing.

The trial court then sentenced Rowe to forty years for the class A felony

robbery, along with a concurrent fifteen-year sentence for the class B felony

burglary, and enhanced the robbery conviction by thirty years based on the

habitual offender finding, for an aggregate seventy-year term. Rowe appealed

again, and we affirmed. Rowe v. State, No. 46A03-0907-CR-344, 2010 WL

2812698 (Ind. Ct. App. July 19, 2010) (Rowe II), trans. denied.

[6] After Rowe II, Rowe filed, pro se, a number of amended petitions for postconviction relief in 2014 and thereafter. Among other things, Rowe alleged that

Attorney Flynn and Attorney Hofer had each rendered ineffective assistance of

counsel. One such argument was that they had improperly refused to

communicate Rowe's requested plea agreement to the State, under which he

had proposed pleading guilty to robbery as a class B felony in exchange for a

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twelve-year sentence, with the remaining counts dismissed and for any sentence

for a probation violation under another felony Cause No. 46D01-0512-FC-163

(FC-163) to be served concurrently with the twelve-year sentence. Rowe also

alleged that Attorney Hofer failed to inform him of a plea offer from the State

that called for Rowe to plead guilty to either robbery or burglary as a class A

felony and to serve a twenty-year sentence. Rowe asserted that he would have

accepted the State's plea offer had he known about it.

[7] Following the denial of Rowe's motions for summary disposition, the postconviction court held an evidentiary hearing on December 1, 2017, and August

10, 2018. The witnesses included the detective involved in the criminal

investigation, the prosecuting attorney, Attorney Flynn, and Rowe. We

summarize the testimony relevant for our purposes below.

[8] Attorney Flynn testified that she made a strategic decision not to present

Rowe's proposed plea deal to the State, which she believed was unreasonable

and would upend any future fruitful negotiation. The prosecuting attorney

testified that he would likely not have accepted a twelve-year plea deal and that

any counteroffer "certainly” would not have been any less than twenty years.

Transcript at 71. Though he had no independent recollection of it, the

prosecuting attorney identified a written plea offer made by him on or about

March 19, 2008, which provided that in return for a guilty plea to either class A

robbery or burglary, the State would agree to a twenty-year executed sentence,

served consecutively to any sentence imposed in FC-163, and dismissal of the

remaining counts.

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[9] Rowe testified, in relevant part, that Attorney Hofer never informed him about

the State's proposed plea agreement and that he would have accepted the offer

had he known about it, because he thought he was facing the possibility of

spending the rest of his life in prison. Although he had told Attorney Hofer that

he would not be willing to accept thirty or forty years, Rowe explained that his

"intention was ... to start at 12 years and from 12 years have room to

negotiate[.]” Id. at 87. Additionally, for the first time, Rowe acknowledged his

own culpability in the robbery and presence at the scene, though he claimed,

contrary to the evidence presented at his jury trial, that Lewis was the one who

beat Toutloff and that he acted only as an accomplice.

[10] Attorney Hofer was not present for the hearing due to a mix-up regarding

issuance of his subpoena. As a result, the post-conviction court continued the

hearing to August 24, 2018, so Attorney Hofer could be properly subpoenaed.

After two additional continuances, however, the trial court cancelled the

subsequent hearing date and issued an order on April 3, 2018, denying Rowe's

petition for post-conviction relief. Rowe appealed.

[11] In Rowe v. State, No. 18A-PC-1031, 2019 WL 1549751 (Ind. Ct. App. April 10,

2019) (Rowe III), trans. denied, we affirmed in part, reversed in part, and

remanded for further proceedings. Specifically, we affirmed the post-conviction

court's denial of Rowe's motions for summary disposition and its rejection of

the claim that Attorney Flynn was ineffective for refusing to relay Rowe's

proposed twelve-year plea agreement to the State, as such was a strategic

decision. The ineffective assistance claims relating to Attorney Hofer were a

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more difficult call, however, due to his absence from the hearing. Regarding

the twelve-year plea, we concluded that Rowe had failed to demonstrate

prejudice because the testimony of the prosecuting attorney indicated that the

offer would have been rejected and that no better offer than the twenty-year

plea would have been made by the State.

[12] In Rowe III, we reversed and remanded on the issue of whether Attorney Hofer

was ineffective with respect to his handling of the State's twenty-year plea offer.

We explained:

[E]ven though Rowe has no constitutional right to plea bargain,

"'defense counsel has the duty to communicate formal offers

from the prosecution to accept a plea on terms and conditions

that may be favorable to the accused.'” Woods v. State, 48 N.E.3d

374, 381 (Ind. Ct. App. 2015) (quoting Missouri v. Frye, 566 U.S.

134, 145 (2012)). Accordingly, once the State decided to engage

in plea bargaining and offer a plea to Rowe's trial counsel,

[Attorney Hofer] was obligated to communicate that offer to

Rowe. And the failure of a defense attorney to communicate a

plea offer to an accused is deficient performance. See id.

Because the question of whether Rowe received the effective

assistance of trial counsel turns on whether his trial counsel

communicated the State's twenty-year plea offer to him and not

whether he had the right to engage in plea bargaining, the postconviction court's finding that Rowe did not have the

constitutional right to engage in plea bargaining does not support

its conclusion that Rowe did not receive ineffective assistance

from his trial counsel.

The post-conviction court also based its ultimate conclusion that

the supplemental hearing was unnecessary and that Rowe had

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received the effective assistance of trial counsel on its finding that

Rowe admitted to having committed the underlying offenses to

the post-conviction court. But Rowe's guilt or innocence of those

offenses is again not relevant to the question of whether his trial

counsel had conveyed the plea agreement from the State and,

therefore, rendered effective assistance....

[H]ere, Rowe's testimony that he committed burglary and could

have pleaded guilty to burglary, as a Class A felony, is consistent

with his testimony that he would have accepted the State's offer

to plead guilty to either burglary or robbery, as a Class A felony.

Rowe's admission of guilt does not support the post-conviction

court's finding that his counsel acted effectively but, rather, is

consistent with his testimony that he was prejudiced by his trial

counsel's alleged failure to communicate the plea agreement

because he would have accepted the State's twenty-year plea

offer, which would have been a materially more favorable

sentence than the sentence he ultimately received....

The post-conviction court's findings that Rowe did not have a

constitutional right to engage in plea bargaining and that Rowe

had admitted his guilt do not support the post-conviction court's

conclusion that he did not receive the ineffective assistance of

trial counsel. Before the post-conviction court can make a

conclusion regarding whether Rowe received effective assistance

from his trial counsel related to the State's twenty-year plea, the

court must first determine whether [Attorney Hofer] presented

the State's plea offer to Rowe. Here, the only evidence submitted

that Rowe's counsel conveyed the State's plea offer to him was

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an affidavit by [Attorney Hofer] in which he stated that he had

communicated the State's plea offer to Rowe.[1]

But, as discussed above, the affidavit from [Attorney Hofer]

created a genuine issue of material fact regarding whether

[Attorney Hofer] had relayed the plea agreement to him. And

Rowe should have been provided the opportunity to present

evidence to resolve that question of fact. However, because the

post-conviction court cancelled the supplemental hearing at

which [Attorney Hofer] was scheduled to appear, Rowe was not

able to question [him] in order to challenge the statements made

in the affidavit or otherwise present evidence – whether in the

form of testimony from his trial counsel or exhibits – in support

of his claim that his trial counsel had not communicated the

State's offer to him and had, therefore, not rendered effective

assistance. Thus, while the affidavit was sufficient to preclude

summary disposition, without Rowe having the opportunity to

challenge it, the affidavit was not sufficient for the trial court to

determine that Rowe had received the effective assistance of trial

counsel. Accordingly, we remand to the post-conviction court to hold

the supplemental hearing and to allow Rowe to question his trial counsel

and to present evidence relevant to the question of whether Rowe's trial

counsel had communicated the State's twenty-year plea offer to him.

Rowe III, slip op. at 22-25 (emphasis supplied).

[13] On September 12, 2019, the post-conviction court held the supplemental

hearing as required by Rowe III. Attorney Hofer testified that on the morning of

the jury trial he informed Rowe, as well as Rowe's father, of the State's twenty1

This affidavit had been submitted by the State in opposition to one of Rowe's motions for summary

disposition.

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year offer and that, against his advice, Rowe rejected it. Attorney Hofer

testified that there was no possibility that he overlooked telling Rowe about the

plea. Further, although he could not specifically recall the written offer (dated

less than three months before trial), as more than eleven years had passed,

Attorney Hofer testified that he "absolutely” would have conveyed the offer to

Rowe and recommended acceptance given Rowe's "great” sentencing

exposure. Transcript at 123, 124.

[14] In response to Attorney Hofer's testimony, Rowe testified/argued that he

believed he was "facing 200 years” and "[l]ogically, it doesn't make sense for

me to have turned down the 20-year plea agreement.” Id. at 130. Pointing to

his proposed twelve-year plea, Rowe explained: "I clearly wanted to negotiate a

plea agreement. That was always my position.” Id.

[15] On January 6, 2020, the post-conviction court issued an order denying Rowe's

only remaining claim for relief based on Attorney Hofer's alleged ineffective

assistance. In doing so, the post-conviction court made the following findings:

6. At the supplemental hearing on September 12, 2019, trial

counsel contended that he did communicate the State's plea offer

of twenty years to Petitioner on the morning of trial, and

Petitioner rejected it.

7. Petitioner asserts that counsel's testimony is contradicted by

Deputy Prosecuting Attorney Atley Price's testimony that he

likely would have rescinded the plea offer before the day of trial.

However, there is no evidence that he did, in fact, rescind the

offer before trial.

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8. Additionally, with respect to the issue of Petitioner's

credibility, the court recognizes that while Petitioner's admission

of guilt during a PCR hearing in August 2017, does not

completely deprive him of any remedy to be provided by this

court, it does challenge the credibility of Petitioner's testimony.

9. Thus, upon hearing the testimony of trial counsel that he

clearly remembers informing Petitioner of the state's offer, along

with Petitioner's admission of guilt in open court, the court lends

little weight to Petitioner's testimony that his trial attorney had

failed to communicate the State's plea offer to him. Therefore,

Petitioner has failed to show that counsel's performance was

deficient.

Appellant's Appendix Vol. II at 24-25. Rowe now appeals. Additional

information will be provided below as needed.

Standard of Review

[16] Rowe appeals from a negative judgment and therefore must establish that the

evidence, as a whole, leads unmistakably and unerringly to a conclusion

contrary to that reached by the post-conviction court. Wilson v. State, 157

N.E.3d 1163, 1170 (Ind. 2020). This is a "rigorous standard of review.” Id.

Further, although we will not defer to the post-conviction court's legal

conclusions, its "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.” Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017)

(quoting Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000)). "The postconviction court is the sole judge of the weight of the evidence and the

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credibility of witnesses.” Perryman v. State, 13 N.E.3d 923, 931 (Ind. Ct. App.

2014), trans. denied.

[17] When evaluating an ineffective assistance of counsel claim, which is the only

issue in this case, we apply the two-part test articulated in Strickland v.

Washington, 466 U.S. 668 (1984). Humphrey, 73 N.E.3d at 682. That is, the

defendant must show both deficient performance by counsel and resulting

prejudice. Id. The failure to establish either will cause the claim to fail. French

v. State, 778 N.E.2d 816, 824 (Ind. 2002).

Discussion & Decision

[18] The sole issue on appeal is whether the evidence supports the post-conviction

court's finding that Attorney Hofer communicated the State's twenty-year plea

offer to Rowe. In this regard, Rowe contends that the post-conviction court

failed to consider the objective evidence – jail phone calls and pretrial letters –

that he claims show his desire to enter into a plea agreement. He also

challenges the court's finding that there is no evidence that the prosecuting

attorney rescinded the offer prior to trial and contends that the post-conviction

court improperly considered Rowe's admission of guilt as reflecting negatively

on his credibility. Finally, Rowe characterizes Attorney Hofer's testimony as

confusing and internally inconsistent. In sum, Rowe asserts that "[n]o

reasonable factfinder would credit Hofer's testimony over Rowe's, given the

other evidence submitted.” Appellant's Brief at 30.

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[19] We reject Rowe's invitation to reweigh the evidence and to judge witness

credibility. Rowe and Attorney Hofer presented directly opposing testimony,

and it was the post-conviction court's duty to determine which of them to

believe. Further, contrary to Rowe's suggestion on appeal, Attorney Hofer

unequivocally testified that he informed Rowe of the plea offer on the morning

of trial and that Rowe rejected the offer. Attorney Hofer testified that there was

no possibility that he overlooked telling Rowe about the plea, which he believed

Rowe should have accepted.

[20] The so-called objective evidence to which Rowe directs us shows that Rowe

desired a much more advantageous plea deal than the one offered by the State –

twelve years as opposed to twenty years with any additional sentence for the

probation violation in FC-163 to be served concurrently rather consecutively.

Although this evidence does not foreclose the possibility that he would have

accepted an offer greater than the one Rowe proposed, it does not clearly

contradict Attorney Hofer's testimony that he notified Rowe of the State's offer

and that Rowe rejected the offer. In other words, it was not clearly erroneous

for the post-conviction court to rely on Attorney Hofer's testimony despite this

evidence, and Rowe's suggestion that the trial court was required to make a

specific finding of fact regarding this evidence is without support in the law.

[21] As noted above, Rowe also challenges the following finding made by the postconviction court:

7. Petitioner asserts that counsel's testimony is contradicted by

Deputy Prosecuting Attorney Atley Price's testimony that he

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likely would have rescinded the plea offer before the day of trial.

However, there is no evidence that he did, in fact, rescind the

offer before trial.

Appellant's Appendix Vol. II at 24-25. This finding is wholly supported by the

record. Consistent with this finding, Price testified that he had "no independent

recollection of” the plea offer that he made, as documented by Petitioner's

Exhibit 3. Transcript at 70. When Rowe asked whether Price would have

entertained any counteroffers, Price responded:

Other than the parameters which are outlined in [Petitioner's

Exhibit 3], at that point in time, no. Certainly between the time

that this letter is dated and the closer we drew to the trial date, I

likely would have withdrawn this and made no further offers

much less made any counteroffer.

Id. (emphasis supplied). The post-conviction court recognized this speculative

testimony but then observed that there was no evidence that Price actually

rescinded the plea offer before trial. In addition to there being no such

evidence, there is Attorney Hofer's testimony that the State's plea offer was

available and rejected by Rowe on the morning of his trial.

[22] Finally, Rowe faults the post-conviction court for considering his admission of

guilt in August 2017 as detracting from his credibility. Citing Jervis v. State, 28

N.E.3d 361 (Ind. Ct. App. 2015), trans. denied, Rowe suggests that he had to

admit his involvement in the robbery to establish that he would have accepted

the State's plea offer and that the trial court would have accepted the plea. See

id. at 367 (where petitioner "clearly and expressly, on many occasions,

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professed his innocence and had no intention of pleading guilty,” the court

found no prejudice because petitioner failed to show that he would have

accepted the plea if properly presented by counsel or that the trial court would

have allowed the plea over his protestation of innocence). That may very well

be the case, but we do not believe that this reality runs counter to the postconviction court's credibility consideration. For years, Rowe consistently

represented that he was not in any way involved with the robbery and suggested

that another man – John Benson – was the perpetrator.2

At the evidentiary

hearing in August 2017, Rowe acknowledged that his third motion for

summary disposition, filed on June 30, 2017, was "the first time that I've

actually gave [sic] a true accounting of what happened.” Transcript at 89. In

light of Rowe's vacillating positions and deferred admission of guilt (only as an

accomplice), we do not question the trial court's credibility determinations or its

decision to rely on Attorney Hofer's clear testimony that he recalled informing

Rowe of the State's offer on the morning of trial.

[23] In sum, Rowe has failed to establish that the evidence, as a whole, leads

unmistakably and unerringly to a conclusion contrary to that reached by the

post-conviction court. In other words, the trial court's ultimate finding that

2 For example, in Rowe's first amended petition for post-conviction relief, filed in June 2014, he alleged that

Attorney Hofer was ineffective for failing to depose Benson "when he knew there was evidence indicating

that he could have been the person that committed the robbery/burglary at issue” and for preventing Rowe

from "fulling pressing the defense that Mr. John Benson was the individual who committed the

robbery/burglary.” Appellant's Appendix at Vol. II at 54. In this vein, at the December 1, 2016 hearing, Rowe

asked for Benson to be subpoenaed "as an alternative suspect ... that was never questioned, deposed, or

called as a trial witness.” Transcript at 7.

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Attorney Hofer communicated the State's plea offer to Rowe is supported by

the evidence and not clearly erroneous. Because Rowe failed to establish

deficient performance by Attorney Hofer, the post-conviction court properly

denied his petition for post-conviction relief.

Judgment affirmed.