ineffective assistance claim in Indiana

2020Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999), reh’g denied.

2018Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999).

2020To establish ineffective assistance based on a conflict of interest arising from joint representation, a defendant who did not raise an objection to joint representation “at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Latta v. State, 743 N.E.2d 1121, 1127 (Ind. 2001) (quoting Cuyler v. Sullivan, 446 U.S. 335, 348-49 (1980)). “[O]nce the defendant has demonstrated an actual conflict and Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020 Page 9 of 23 an adverse effect on his lawyer’s performance, the prejudice prong of a

2017Strickland, 466 U.S. at 690-91 . [12] Because success on the prejudice prong of an ineffective assistance claim requires a showing of a reasonable probability of a different result, establishing failure to investigate as a ground for ineffectiveness “requires going beyond the trial record to show what investigation, if undertaken, would have produced.” McKnight, 1 N.E.3d at 201 (citing Woods v. State, 701 N.E.2d 1208, 1214 (Ind. 1998), cert. denied (1999)). [13] Here, Bonds neither called Counsel as a witness to testify at the PCR hearing nor introduced any evidence from Counsel by affidavit o

2019Flanders v. State, 955 N.E.2d 732, 739 (Ind. Ct. App. 2011), trans. denied (2012). “[C]ounsel’s performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption.” Ritchie v. State, 875 N.E.2d 706, 714 (Ind. 2007).

2017Flanders v. State, 955 N.E.2d 732, 739 (Ind. Ct. App. 2011), trans. denied (2012). “[C]ounsel’s performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption.” Ritchie v. State, 875 N.E.2d 706, 714 (Ind. 2007).

2019Flanders v. State, 955 N.E.2d 732, 739 (Ind. Ct. App. 2011), trans. denied (2012). “[C]ounsel’s performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption.” Ritchie v. State, 875 N.E.2d 706, 714 (Ind. 2007).

2017Flanders v. State, 955 N.E.2d 732, 739 (Ind. Ct. App. 2011), trans. denied (2012). “[C]ounsel’s performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption.” Ritchie v. State, 875 N.E.2d 706, 714 (Ind. 2007).

2018See Baer v. State, 942 N.E.2d 80, 91 (Ind. 2011) (“If we can easily dismiss an ineffective assistance claim based upon the prejudice prong, we may do so without addressing whether counsel’s performance was deficient.”), reh’g denied.

2018See Baer v. State, 942 N.E.2d 80, 91 (Ind. 2011) (“If we can easily dismiss an ineffective assistance claim based upon the prejudice prong, we may do so without addressing whether counsel’s performance was deficient.”), reh’g denied.

2016See Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009) (“If we can dismiss an ineffective assistance claim on the prejudice prong, we need not address whether counsel’s performance was deficient.”).

2012See Helton v. State, 907 N.E.2d 1020 (Ind. 2009) (we need not address whether counsel’s performance was deficient if we can dismiss an ineffective assistance claim on the element of prejudice).

2017See French, 778 N.E.2d at 824 (noting failure to prove either prong of an ineffective assistance claim will cause the claim to fail). [13] Considering the high hurdle for ineffective assistance of counsel claims and counsel’s considerable discretion in strategy, Fuentes’s argument fails to establish that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite the one reached by the post-conviction court.

2016French v. State, 778 N.E.2d 816, 824 (Ind. 2002). “[I]f we can dismiss an ineffective assistance claim on the prejudice prong, we need not address whether counsel’s performance was deficient.” Lee v. State, 892 N.E.2d 1231, 1233 (Ind. 2008). 1 Hummel did not include the post-conviction court’s order in the appendix on appeal.

2016Thus, if we are able to “dismiss an ineffective assistance claim on the prejudice prong, we need not address whether counsel’s performance was deficient.” Id. (quoting Lee v. State, 892 N.E.2d 1231, 1233 (Ind. 2008)). [19] An attorney’s performance is considered deficient “if it falls below an objective standard of reasonableness based on prevailing professional norms.” Id.

2016French v. State, 778 N.E.2d 816, 824 (Ind. 2002). “[I]f we can dismiss an ineffective assistance claim on the prejudice prong, we need not address whether counsel’s performance was deficient.” Lee v. State, 892 N.E.2d 1231, 1233 (Ind. 2008). 1 Hummel did not include the post-conviction court’s order in the appendix on appeal.

2026If we can easily dismiss an ineffective assistance claim based upon the prejudice prong, we may do so without addressing whether counsel’s performance was deficient.” Henley v. State, 881 N.E.2d 639, 645 (Ind. 2008) (internal citation omitted).

2020“If we can easily dismiss an ineffective assistance claim based upon the prejudice prong, we may do so without addressing whether counsel’s performance was deficient.” Henley v. State, 881 N.E.2d 639, 645 (Ind. 2008).

2015“Counsel is afforded considerable discretion in choosing strategy and tactics, and these decisions are entitled to deferential review.” Benefield v. State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011). “[I]n the context of an ineffective assistance claim, ‘a decision regarding what witnesses to call is a matter of trial Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015 Page 6 of 15 strategy which an appellate court will not second-guess.’” McCullough v. State, 973 N.E.2d 62, 83 (Ind. Ct. App. 2012) (quoting Curtis v. State, 905 N.E.2d 410, 415 (Ind. Ct. App.

2013Generally, “in the context of an ineffective assistance claim, ‘a decision regarding what witnesses to call is a matter of trial strategy which an appellate court will not second-guess.’” Curtis v. State, 905 N.E.2d 410, 415 (Ind. Ct. App. 2009) (quoting Johnson v. State, 832 N.E.2d 985, 1003 (Ind. Ct. App. 2005), trans. denied), trans. denied; see also Wrinkles v. State, 749 N.E.2d 1179, 1200 (Ind. 2001) (stating “[w]hich witnesses to call is the epitome of a strategic decision”) (citation and quotation marks omitted).

2016Wentz v. State, 766 N.E.2d 351, 361 (Ind. 2002). [13] Harrison argues that his attorney’s performance was ineffective because counsel did not object to the phone call recording or the audio or video recordings of the controlled buy.

2008Wentz v. State, 766 N.E.2d 351, 360 (Ind.2002).

2016Pontius v. State, 930 N.E.2d 1212, 1219 (Ind. Ct. App. 2010), trans. denied.

2015Pontius v. State, 930 N.E.2d 1212, 1219 (Ind. Ct. App. 2010), trans. denied.

2013Generally, “in the context of an ineffective assistance claim, ‘a decision regarding what witnesses to call is a matter of trial strategy which an appellate court will not second-guess.’” Curtis v. State, 905 N.E.2d 410, 415 (Ind. Ct. App. 2009) (quoting Johnson v. State, 832 N.E.2d 985, 1003 (Ind. Ct. App. 2005), trans. denied), trans. denied; see also Wrinkles v. State, 749 N.E.2d 1179, 1200 (Ind. 2001) (stating “[w]hich witnesses to call is the epitome of a strategic decision”) (citation and quotation marks omitted).

2013Generally, “in the context of an ineffective assistance claim, ‘a decision regarding what witnesses to call is a matter of trial strategy which an appellate court will not second-guess.’” Curtis v. State, 905 N.E.2d 410, 415 (Ind. Ct. App. 2009) (quoting Johnson v. State, 832 N.E.2d 985, 1003 (Ind. Ct. App. 2005), trans. denied); see also Wrinkles v. State, 749 N.E.2d 1179, 1200 (Ind. 2001) (stating “[w]hich witnesses to call is the epitome of a strategic decision.”) (citation and quotation marks omitted).

2013Generally, “in the context of an ineffective assistance claim, ‘a decision regarding what witnesses to call is a matter of trial strategy which an appellate court will not second-guess.’” Curtis v. State, 905 N.E.2d 410, 415 (Ind. Ct. App. 2009) (quoting Johnson v. State, 832 N.E.2d 985, 1003 (Ind. Ct. App. 2005), trans. denied), trans. denied; see also Wrinkles v. State, 749 N.E.2d 1179, 1200 (Ind. 2001) (stating “[w]hich witnesses to call is the epitome of a strategic decision”) (citation and quotation marks omitted).

2013Generally, “in the context of an ineffective assistance claim, ‘a decision regarding what witnesses to call is a matter of trial strategy which an appellate court will not second-guess.’” Curtis v. State, 905 N.E.2d 410, 415 (Ind. Ct. App. 2009) (quoting Johnson v. State, 832 N.E.2d 985, 1003 (Ind. Ct. App. 2005), trans. denied); see also Wrinkles v. State, 749 N.E.2d 1179, 1200 (Ind. 2001) (stating “[w]hich witnesses to call is the epitome of a strategic decision.”) (citation and quotation marks omitted).

2012Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005), trans. denied.

2012Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005), trans. denied.

2002Although we need not reach this issue to decide the case before us, we note that "an ineffective assistance claim cannot be based on counsel's failure to argue the legal reasoning of cases not yet decided at the time of trial." Shaffer v. State, 674 N.E.2d 1, 7 (Ind.Ct.App.1996), trans. denied (1997) (citing Jarrett v. State, 580 N.E.2d 245, 250 (Ind.Ct.App.1991), trans. denied (1992) (counsel's failure to object to admission of testimony on basis of legal reasoning of case not decided at time of trial not ineffective assistance)).

2002We noted in our original opinion that because we were deciding the case on fundamental error, we did not need to address his alternate claims, and we further noted that "an ineffective assistance claim cannot be based on counsel’s failure to argue the legal reasoning of cases not yet decided at the time of trial." Woodson v. State, 767 N.E.2d 1022 , 1029 n. 4 (Ind.Ct.App.2002) (quoting Shaffer v. State, 674 N.E.2d 1, 7 (Ind.Ct.App.1996)).

2017Strickland, 466 U.S. at 690-91 . [12] Because success on the prejudice prong of an ineffective assistance claim requires a showing of a reasonable probability of a different result, establishing failure to investigate as a ground for ineffectiveness “requires going beyond the trial record to show what investigation, if undertaken, would have produced.” McKnight, 1 N.E.3d at 201 (citing Woods v. State, 701 N.E.2d 1208, 1214 (Ind. 1998), cert. denied (1999)). [13] Here, Bonds neither called Counsel as a witness to testify at the PCR hearing nor introduced any evidence from Counsel by affidavit o

2014That burden, in turn, magnifies the risk of raising an ineffective-assistance claim on di *978 rect appeal — because counsel’s reasoning may not be “apparent from the trial record,” making it “necessary for an additional record to be developed to show the reason for an act or omission that appears in the trial record.” Id. at 1212-13 .

2020See State v. Green, 16 N.E.3d 416, 419 (Ind. 2014) (providing that failure to demonstrate both deficient performance and prejudice is fatal to an ineffective-assistance claim).

2019State v. Greene, 16 N.E.3d 416, 419 (Ind. 2014).

2010See Pennycuff v. State, 745 N.E.2d 804, 812 (Ind.2001) ("`When an ineffective assistance claim is predicated on counsel's failure to interpose an objection, appellant has the burden to show that a proper objection would have been sustained by the trial court.'" (citation omitted)).

2010See Pennycuff v. State, 745 N.E.2d 804, 812 (Ind.2001) ("'When an ineffective assistance claim is predicated on counsel's failure to interpose an objection, appellant has the burden to show that a proper objection would have been sustained by the trial court.'" (citation omitted)).

2021Appellee’s Br. at 19; see Reed, 856 N.E.2d at 1197 (“[C]ounsel cannot be held ineffective for failing to anticipate or effectuate a change in existing law[, and] an ineffective assistance claim cannot be based upon counsel’s failure to argue legal reasoning of cases not yet decided at the time of appeal.”) (citations omitted).

2015See Garrett v. State, 992 N.E.2d 710, 724 (Ind. 2013) (holding that appellate counsel cannot be held ineffective for failing to anticipate or effectuate a change in existing law); Reed, 856 N.E.2d at 1197 (holding that an ineffective assistance claim cannot be based upon counsel’s failure to argue legal reasoning of cases not yet decided at the time of 4 In Campos v. State, 885 N.E.2d 590, 598 (Ind. 2008), the Court held that to challenge a search a defendant must establish ownership, control, possession, or interest in the premises searched and must show a subjective and objective expectation

2019A number of decisions from this court have addressed whether the petitioner had shown the necessary “special circumstances.” For instance, in Sial v. State, 862 N.E.2d 702, 706 (Ind. Ct. App. 2007), where the petitioner had been in the United States for twenty years and had a daughter who was born here, we held that the defendant did establish objective facts, or “special circumstances” to satisfy the prejudice prong of an ineffective assistance claim based on the failure to advise of the possible adverse immigration consequences from pleading guilty.

2013In Sial v. State, 862 N.E.2d 702, 706 (Ind.Ct.App.2007), we held that the defendant did establish objective facts, or “special circumstances” to satisfy the prejudice prong of an ineffective assistance claim based on the failure to advise of the possible adverse immigration consequences from pleading guilty.

2016“Because an inability to satisfy either prong of this test is fatal to an ineffective assistance claim, this court need not even evaluate counsel’s performance if the petitioner suffered no prejudice from that performance.” Suarez v. State, 967 N.E.2d 552, 555 (Ind. Ct. App. 2012). [6] When a petitioner has pled guilty, we must analyze his claim under Segura v. State, 749 N.E.2d 496 (Ind. 2001).

2013See Suarez v. State, 967 N.E.2d 552, 557 (Ind.Ct.App.2012) (affirming denial of PCR petition based on failure to establish prejudice), trans. pending; Gulzar v. State, 971 N.E.2d 1258, 1262 (Ind.Ct.App.2012) (same), trans. pending; Clarke v. State, 974 N.E.2d 562, 568 (Ind.Ct.App.2012) (same); Trujillo v. State, 962 N.E.2d 110, 114, 116 (Ind.Ct.App.2011) (same); State v. Bonilla, 957 N.E.2d 682, 685 (Ind.Ct.App.2011) (reversing grant of PCR petition based on failure to show prejudice). 9 .

2020Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 8 of 28 Because both prongs of the Strickland test constitute “separate and independent inquiries,” Landis v. State, 749 N.E.2d 1130, 1134 (Ind. 2001), failure to demonstrate either deficient performance or prejudice is fatal to an ineffective- assistance claim.

2013Landis v. State, 749 N.E.2d 1130 (Ind.2001).

2020To establish ineffective assistance based on a conflict of interest arising from joint representation, a defendant who did not raise an objection to joint representation “at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Latta v. State, 743 N.E.2d 1121, 1127 (Ind. 2001) (quoting Cuyler v. Sullivan, 446 U.S. 335, 348-49 (1980)). “[O]nce the defendant has demonstrated an actual conflict and Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020 Page 9 of 23 an adverse effect on his lawyer’s performance, the prejudice prong of a

2020To establish ineffective assistance based on a conflict of interest arising from joint representation, a defendant who did not raise an objection to joint representation “at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Latta v. State, 743 N.E.2d 1121, 1127 (Ind. 2001) (quoting Cuyler v. Sullivan, 446 U.S. 335, 348-49 (1980)). “[O]nce the defendant has demonstrated an actual conflict and Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020 Page 9 of 23 an adverse effect on his lawyer’s performance, the prejudice prong of a

2020We, however, “do not defer to the post-conviction court’s legal conclusions.” Stephenson, 864 N.E.2d at 1028 .

2018See PCR Tr. p. 50. [13] Moreover, “an ineffective assistance claim based on failure to object to restraints require[s] the restraints to be visible.” Stephenson v. State, 864 N.E.2d 1022 , 1032–1033 (Ind. 2007).

2019However, in contrast, the court in Trujillo, concluded that the petitioner “failed to demonstrate the presence of special circumstances within the meaning of Segura and therefore failed to demonstrate that he suffered prejudice” from counsel’s failure to advise him regarding the immigration consequences of pleading guilty. 962 N.E.2d at 116 .

2013See Suarez v. State, 967 N.E.2d 552, 557 (Ind.Ct.App.2012) (affirming denial of PCR petition based on failure to establish prejudice), trans. pending; Gulzar v. State, 971 N.E.2d 1258, 1262 (Ind.Ct.App.2012) (same), trans. pending; Clarke v. State, 974 N.E.2d 562, 568 (Ind.Ct.App.2012) (same); Trujillo v. State, 962 N.E.2d 110, 114, 116 (Ind.Ct.App.2011) (same); State v. Bonilla, 957 N.E.2d 682, 685 (Ind.Ct.App.2011) (reversing grant of PCR petition based on failure to show prejudice). 9 .

2016“Because an inability to satisfy either prong of this test is fatal to an ineffective assistance claim, this court need not even evaluate counsel’s performance if the petitioner suffered no prejudice from that performance.” Suarez v. State, 967 N.E.2d 552, 555 (Ind. Ct. App. 2012). [6] When a petitioner has pled guilty, we must analyze his claim under Segura v. State, 749 N.E.2d 496 (Ind. 2001).

2016Segura v. State, 749 N.E.2d 496, 501 (Ind,2001), We must address the erroneous standard for prejudice the State presented to the post-conviction court and the court adopted.