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Date: 02-07-2021
Case Style:
James L Davidson v. State of Indiana
Case Number: 20A-PC-00517
Judge: Margret G. Robb
Court: COURT OF APPEALS OF INDIANA
Plaintiff's Attorney: Theodore E. Rokita
Attorney General of Indiana
Sierra A. Murray
Deputy Attorney General
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
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.
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[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.
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[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
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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.
Outcome: 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.
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