James L Davidson v. State of Indiana

Indianapolis, IN - Criminal defense attorney represented James Davidson with filing a petition for post-conviction relief wherein he alleged, in part, ineffective assistance of trial counsel..

[3] On June 23, 2014, Davidson was involved in the robbery of Nicky Fields,

Corey Harris, and Steven Smitson. During the robbery both Fields and Harris

were killed and Smitson was shot and seriously injured. The State charged

Davidson with two counts of murder; robbery resulting serious bodily injury, a

Class A felony; and attempted murder, a Class A felony. The State also alleged

that Davidson was an habitual offender.

[4] On July 13, 2017, the State filed an amended charging information. The

amended charges alleged that Davidson committed two counts of felony

Court of Appeals of Indiana | Memorandum Decision 20A-PC-517 | January 29, 2021 Page 3 of 15

murder and robbery resulting in a serious injury, a Class A felony.1 See

Appendix of Appellee, Volume 2 at 24-25. The amended charging information

also removed the attempted murder charge and habitual offender enhancement.

See App. of Appellee, Vol. 2 at 24-25. Davidson's trial counsel made no

objection to the State amending the charging information at this time.

[5] On July 17, 2017, Davidson pleaded guilty to robbery resulting in serious bodily

injury. The plea agreement stated that Davidson would receive a forty-year

sentence in the DOC and in exchange for his guilty plea, the remaining charges

would be dismissed and the State would not pursue an habitual offender

enhancement. See id. at 26-28. The trial court held a guilty plea hearing the

same day, determined that the factual basis was sufficient, and accepted

Davidson's guilty plea. The sentencing order stated, "Pursuant to plea

agreement . . . defendant waives right to appeal and post-conviction relief.” Id.

at 32.

[6] On December 4, 2017, Davidson filed a pro se petition for post-conviction

relief. A hearing was conducted, at which Davidson's trial counsel testified.2

After the presentation of evidence, the post-conviction court denied Davidson's

1 Robbery resulting in serious bodily injury was classified as a Class A felony at the time of the crime. It has

since been changed to a Level 2 felony. See Ind. Code § 35-42-5-1(a).

2 Davidson was initially represented by Alice Blevins. William Gray then took over the representation of

Davidson and was his attorney at the time he pleaded guilty. Davidson's initial petition for post-conviction

relief alleged that both attorneys were ineffective, see Appellant's Appendix, Volume I at 14 (citation based on

.pdf pagination); however, his claim on appeal refers only to Gray, see Brief of Appellant at 4. Both attorneys

testified at the post-conviction hearing.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-517 | January 29, 2021 Page 4 of 15

petition. See Transcript of Evidence, Volume 1 at 80. Davidson now appeals.

Additional facts will be added as necessary.

Discussion and Decision

I. Standard of Review

[7] Post-conviction proceedings are civil in nature and the petitioner must therefore

establish his claims by a preponderance of the evidence. Ind. Post-Conviction

Rule 1(5). A post-conviction proceeding does not afford defendants the

opportunity for a "super-appeal.” Atchley v. State, 730 N.E.2d 758, 762 (Ind. Ct.

App. 2000) (citation omitted), trans. denied. Instead, such proceedings provide

defendants with an opportunity to raise issues that were not known at the time

of the trial, or that were unavailable on direct appeal. Id. When appealing the

denial of post-conviction relief, the appellant faces a "rigorous standard of

review,” id., as the reviewing court may consider only the evidence and the

reasonable inferences supporting the judgment of the post-conviction court,

Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010), trans. denied. The

appellate court must accept the post-conviction court's findings of fact and may

reverse only if the findings are clearly erroneous. Id. A petitioner denied postconviction relief must show that the evidence as a whole leads unerringly and

unmistakably to an opposite conclusion than that reached by the postconviction court. Id.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-517 | January 29, 2021 Page 5 of 15

[8] We review claims of ineffective assistance of counsel under the two-prong test

set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on such a

claim, the petitioner must show 1) his counsel's performance was deficient, and

2) he was prejudiced by the deficient performance. Id. at 687. Counsel's

performance is deficient when it falls "below an objective standard of

reasonableness, committing errors so serious that the defendant did not have

the 'counsel' guaranteed by the Sixth Amendment.” McCary v. State, 761

N.E.2d 389, 392 (Ind. 2002). Where a defendant challenges counsel's

performance after pleading guilty, the second prong can only be met by the

defendant showing that there is a reasonable probability he would not have

pleaded guilty and instead would have insisted on proceeding to trial but for

counsel's deficient performance. Hendrickson v. State, 660 N.E.2d 1068, 1072

(Ind. Ct. App. 1996), trans. denied. Failure to satisfy either prong will cause the

claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind. 2002).

II. Ineffective Assistance of Trial Counsel

[9] Davidson claims the post-conviction court erred in concluding his trial counsel

was not ineffective. Specifically, he claims he was denied effective assistance

when: (1) trial counsel did not object to the State's untimely amendment of the

charging information; (2) trial counsel failed to adequately investigate; (3) trial

counsel improperly advised him of the elements of the charging information; (4)

trial counsel allowed him to plead guilty even though there was not a factual

basis for his plea; (5) trial counsel failed to ensure that Criminal Rule 4(a) was

not violated; and (6) trial counsel allowed him to sign a plea agreement waiving

Court of Appeals of Indiana | Memorandum Decision 20A-PC-517 | January 29, 2021 Page 6 of 15

his right to post-conviction relief. See Br. of Appellant at 4. Each claim will be

addressed separately.

A. Failure to Object to Amendment of Charging Information

[10] Davidson argues that trial counsel's failure to object to the State's amended

charging information was ineffective assistance. Specifically, he contends the

amendment was untimely and counsel should have objected on that basis. We

disagree.

[11] Counsel has wide latitude in selecting trial strategy and tactics, which we afford

great deference. Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012). We "will not

speculate as to what may have been counsel's most advantageous strategy, and

isolated poor strategy, bad tactics, or inexperience does not necessarily amount

to ineffective assistance.” Sarwacinski v. State, 564 N.E.2d 950, 951 (Ind. Ct.

App. 1991) (citation omitted).

[12] Here, the State's amended charging information changed Davidson's two

murder charges to felony murder charges, removed the attempted murder

charge, and did not refile the habitual offender enhancement. See App. of

Appellee, Vol. 2 at 2-3, 24-25. When asked during the post-conviction

evidentiary hearing why he did not object to the State amending the charges,

Court of Appeals of Indiana | Memorandum Decision 20A-PC-517 | January 29, 2021 Page 7 of 15

trial counsel stated that "the amendment would have benefited [Davidson]” so

there was "no reason for [him] to object to it.”3 Tr., Vol. 1 at 20.

[13] There is a "strong presumption . . . that counsel rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment.” Ward, 969 N.E.2d at 51 (internal quotations omitted). Davidson has

failed to overcome this presumption. The amendment benefited Davidson

because it reduced his criminal exposure by omitting the attempted murder

charge and the habitual offender enhancement. Thus, not objecting was a

reasonable strategy. We conclude that Davidson has not shown that trial

counsel's failure to object to the amended charging information constituted

deficient performance.

B. Failure to Adequately Investigate

[14] When deciding a claim of ineffective assistance for failure to investigate, we

apply a great deal of deference to counsel's judgments. Boesch v. State, 778

N.E.2d 1276, 1283 (Ind. 2002). Establishing failure to investigate as a ground

for ineffective assistance of counsel requires going beyond the trial record to

show what an investigation, if undertaken, would have produced. McKnight v.

State, 1 N.E.3d 193, 201 (Ind. Ct. App. 2013). "This is necessary because

3 Trial counsel also stated that "[h]ad [Davidson gone] to trial . . . the State would have been allowed to

amend the charges to conform to the evidence anyway.” Tr., Vol. 1 at 23.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-517 | January 29, 2021 Page 8 of 15

success on the prejudice prong of an ineffectiveness claim requires a showing of

a reasonable probability of affecting the result.” Id. (citation omitted).

[15] Davidson argues that trial counsel failed to adequately investigate his case

when he did not acquire transcripts of testimony that Smitson, one of the

victims, and Elbert Brooks, a co-defendant, gave in a related case.4 See Br. of

Appellant at 5. However, trial counsel testified that he filed a motion to obtain

the testimony of Smitson but because Davidson pleaded guilty there was no

longer a reason for the testimony to be transcribed. See Tr., Vol. 1 at 24. At the

post-conviction hearing, Davidson did not ask trial counsel why he did not get

Brooks' testimony. See id. And Davidson fails to present any evidence that the

failure to acquire Brooks' testimony was ineffective assistance. Furthermore,

Davidson made no showing regarding what Smitson's or Brooks' testimony

would have produced or how it would have changed his decision to plead

guilty. Thus, we conclude that trial counsel's investigation did not fall below

objective standards of reasonableness.

4 Davidson also claims that trial counsel failed to raise a proper defense; specifically, that trial counsel failed

to raise an issue about the photo identification in his case and did not attack the probable cause affidavit as

based on hearsay. However, during the post-conviction evidentiary hearing, he questioned Blevins regarding

these claims, not Gray. As previously stated, on appeal Davidson only claims that Gray was ineffective.

Therefore, we find Davidson's claim of failure to raise a proper defense waived. For the sake of

completeness, we do note that during the post-conviction hearing Blevins testified that the probable cause

affidavit and photo identification "did not appear to have weaknesses that would have valid validity for [her]

to attack[.]” Tr., Vol. 1 at 18.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-517 | January 29, 2021 Page 9 of 15

C. Failure to Advise of the Elements of the Charging

Information

[16] Davidson seemingly argues that trial counsel misinformed him about what he

would be pleading guilty to. Davidson states that he told trial counsel that he

"did not want to plea [sic] to harming anyone” but at the guilty plea hearing

trial counsel had him "plea [sic] guilty to harming [Smitson].” Br. of Appellant

at 6.

[17] Indiana Appellate Rule 46(A)(8)(a) states that the argument section of an

appellant's brief "must contain the contentions of the appellant on the issues

presented, supported by cogent reasoning. Each contention must be supported

by citations to the authorities, statutes, and the Appendix or parts of the Record

on Appeal relied on[.]” It is well settled that we will not consider an appellant's

assertion on appeal when he has not presented a cogent argument supported by

authority and references to the record as required by the rules. Pitman v.

Pitman, 717 N.E.2d 627, 633 (Ind. Ct. App. 1999). Additionally, "[w]e will not

become an advocate for a party, nor will we address arguments which are either

inappropriate, too poorly developed or improperly expressed to be

understood.” Ramsey v. Review Bd. Of Ind. Dep't of Workforce Dev., 789 N.E.2d

486, 487 (Ind. Ct. App. 2003) (quotation omitted). Because Davidson does not

make a cogent argument to support his contention, we find this section of

Davidson's argument waived.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-517 | January 29, 2021 Page 10 of 15

D. Factual Basis for Plea

[18] Pursuant to Indiana Code section 35-35-1-3(b), a trial court may not accept a

guilty plea unless a sufficient factual basis for the plea has been established. An

adequate factual basis for the acceptance of a guilty plea may be established in

several ways: 1) by the State's presentation of evidence on the elements of the

charged offenses; 2) the defendant's sworn testimony regarding the events

underlying the charges; 3) the defendant's admission of the truth of the

allegations in the information read in court; or 4) the defendant's

acknowledgment that he understands the nature of the crimes charged and that

his plea is an admission of the charges. Minor v. State, 641 N.E.2d 85, 89 (Ind.

Ct. App. 1994), trans. denied.

[19] Davidson argues that trial counsel allowed him to plead guilty to robbery

resulting in serious bodily injury even though "there was not enough factual

basis for said plea.” Br. of Appellant at 6. The State's amended charging

information stated:

Davidson did knowingly take property, to-wit: guns, from

another person or the presence of another person, to-wit:

[Fields], by threatening the use of force, to-wit: to shoot him with

a gun; said act resulting in serious bodily injury [Smitson.]

App. of Appellee, Vol. 2 at 25. Davidson argues that he did not aid in the

serious bodily injury of Smitson because he was not present at the time he was

shot.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-517 | January 29, 2021 Page 11 of 15

[20] Here, Davidson pleaded guilty to robbery resulting in serious injury, a Class A

felony. "A person who knowingly or intentionally takes property from another

person or from the presence of another person: (1) by using or threatening the

use of force on any person; or (2) by putting any person in fear; commits

robbery . . . a Class A felony if it results in serious bodily injury to any person

other than a defendant.” Ind. Code § 35-42-5-1 (1984).

[21] During the plea hearing, trial counsel questioned Davidson about his

involvement in the robbery at issue to establish a factual basis. Davidson's

responses, in relevant part, are as follows:

[Mr. Gray]: The State alleges that on [June 23, 2014] you did

knowingly take property, to-wit: guns, from another person, that

being [Fields] and the allegation would include that you carried,

ah, a sack full of merchandise or property out of the trailer

belonging to [Fields], after he had been murdered, is that correct?

[Davidson]: Well, it was before he was murdered, yes.

[Mr. Gray]: But, you did carry property out of that trailer?

[Davidson]: Yes.

* * *

[Mr. Gray]: It's also been alleged in the Information . . . that you

aided in this robbery and it also resulted in the . . . serious bodily

injury . . . [to Smitson], were you present when [Smitson] was

shot?

Court of Appeals of Indiana | Memorandum Decision 20A-PC-517 | January 29, 2021 Page 12 of 15

[Davidson]: No, I was outside.

[Mr. Gray]: Okay, but, you do understand that [Smitson] was

shot?

[Davidson]: Yes.

[Mr. Gray]: And you aided in some small part, carrying property

out of that . . . trailer, so you did at least aid in the Robbery of

[Fields], is that correct?

[Davidson]: Yes.

* * *

[Mr. Gray]: And . . . you do understand that you had a role in

this double murder, ah, in that you participated in some part, um,

at least going to the place, carrying property outside and that is

the crime of Aiding Robbery with Serious Bodily Injury, is that

right, you understand that?

[Davidson]: Yes.

[Mr. Gray]: And you do understand that [Fields] was threatened,

um, by the use of deadly force, in fact ordered on the gun, ah, by,

ah, [Brooks], you do understand that, correct?

[Davidson]: Yes, I do.

Exhibits, Volume 1 at 17-20.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-517 | January 29, 2021 Page 13 of 15

[22] We conclude that there was an adequate factual basis supporting Davidson's

guilty plea for robbery resulting in serious bodily injury. Thus, trial counsel's

performance did not fall below an objective standard of reasonableness.

E. Criminal Rule 4(a)

[23] Davidson argues that he was entitled to release under Indiana Criminal Rule

4(a) and that trial counsel "worked with [the] prosecutor . . . to where [he] did

not get this release.” Br. of Appellant at 6. Indiana Criminal Rule 4 provides, in

relevant part:

No defendant shall be detained in jail on a charge, without a

trial, for a period in aggregate embracing more than six (6)

months from the date the criminal charge against such defendant

is filed, or from the date of his arrest on such charge (whichever

is later); except where a continuance was had on his motion, or

the delay was caused by his act, or where there was not sufficient

time to try him during such period because of congestion of the

court calendar[.]

[24] Trial counsel testified that he filed a motion for a six-month release under

Indiana Criminal Rule 4(a) and a hearing was set for July 24, 2017. See Tr., Vol.

1 at 26. However, Davidson pleaded guilty on July 17, prior to the release

hearing. See App. of Appellee, Vol. 2 at 26. Davidson makes no showing that

allowing a defendant to plead guilty prior to a possible Criminal Rule 4(a)

release constitutes deficient performance. We conclude that Davidson failed to

show that trial counsel's performance was deficient in terms of Davidson's right

to a Criminal Rule 4(a) release, as even if he would have been entitled to release

for the few weeks before his trial, he was still ultimately answerable to the

Court of Appeals of Indiana | Memorandum Decision 20A-PC-517 | January 29, 2021 Page 14 of 15

charges against him. Thus, Davidson fails to show how this affected his

decision to plead guilty.

F. Waiver of Post-Conviction Relief

[25] Davidson argues that trial counsel's assistance was ineffective because counsel

"allowed [him] to sign an invalid plea.” Br. of Appellant at 7. Davidson's plea

agreement stated, "defendant waives right to appeal and post conviction relief.”

App. of Appellee, Vol. 2 at 27. However, provisions in plea agreements that

waive a defendant's right to seek post-conviction relief are void and

unenforceable. Creech v. State, 887 N.E.2d 73, 75-76 (Ind. 2008).

[26] Here, Davidson was allowed to file a petition for post-conviction relief and had

a post-conviction relief hearing. The post-conviction court acknowledged this

provision was unenforceable and told Davidson, "[Y]ou cannot waive your

right to Post-Conviction Relief . . . I permitted you to file your Post-Conviction

Relief, so that's why you're here.” Tr., Vol. 1 at 79. Davidson's petition for

post-conviction relief was decided on the merits.

[27] Allowing Davidson to sign a plea agreement containing a clause preventing him

from seeking post-conviction relief, even if not upheld, is likely representation

that falls below the reasonable standard. However, the post-conviction court

allowed him to file a petition, held a hearing, and rendered a decision on the

merits. Thus, we conclude that Davidson failed to establish that he was

prejudiced by trial counsel's deficient representation. Specifically, Davidson has

failed to show that if not for counsel's deficient performance, he would not have

Court of Appeals of Indiana | Memorandum Decision 20A-PC-517 | January 29, 2021 Page 15 of 15

pleaded guilty and instead would have insisted on proceeding to trial.

Hendrickson, 660 N.E.2d at 1072.

Davidson failed to demonstrate ineffective assistance of trial counsel. Therefore,

we conclude that the post-conviction court did not err when it denied

Davidson’s petition for post-conviction relief. Accordingly, we affirm.