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Date: 02-07-2021
Case Style:
Jeffrey Allen Rowe v. State of Indiana
Case Number: 20A-PC-00346
Judge: Robert R. Altice, Jr.
Court: COURT OF APPEALS OF INDIANA
Plaintiff's Attorney: Theodore E. Rokita
Attorney General of Indiana
Ian McLean
Supervising Deputy Attorney
General
Defendant's Attorney:
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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.
Court of Appeals of Indiana | Memorandum Decision 20A-PC-346 | January 29, 2021 Page 3 of 15
[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
Court of Appeals of Indiana | Memorandum Decision 20A-PC-346 | January 29, 2021 Page 4 of 15
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.
Court of Appeals of Indiana | Memorandum Decision 20A-PC-346 | January 29, 2021 Page 5 of 15
[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
Court of Appeals of Indiana | Memorandum Decision 20A-PC-346 | January 29, 2021 Page 6 of 15
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
Court of Appeals of Indiana | Memorandum Decision 20A-PC-346 | January 29, 2021 Page 7 of 15
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
Court of Appeals of Indiana | Memorandum Decision 20A-PC-346 | January 29, 2021 Page 8 of 15
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.
Court of Appeals of Indiana | Memorandum Decision 20A-PC-346 | January 29, 2021 Page 9 of 15
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.
Court of Appeals of Indiana | Memorandum Decision 20A-PC-346 | January 29, 2021 Page 10 of 15
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
Court of Appeals of Indiana | Memorandum Decision 20A-PC-346 | January 29, 2021 Page 11 of 15
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.
Court of Appeals of Indiana | Memorandum Decision 20A-PC-346 | January 29, 2021 Page 12 of 15
[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
Court of Appeals of Indiana | Memorandum Decision 20A-PC-346 | January 29, 2021 Page 13 of 15
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,
Court of Appeals of Indiana | Memorandum Decision 20A-PC-346 | January 29, 2021 Page 14 of 15
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.
Court of Appeals of Indiana | Memorandum Decision 20A-PC-346 | January 29, 2021 Page 15 of 15
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.
Outcome: Judgment affirmed.
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