Tyrone Jeffrey Toles, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Tyrone Jeffrey Toles appeals the post-conviction court's denial of his petition for post-conviction relief following an evidentiary hearing. Toles raises a single issue for our review, namely, whether the post-conviction court erred when it denied his petition. We affirm.

Facts and Procedural History

[2] The facts underlying Toles's convictions for attempted murder, Level 4 felony unlawful possession of a firearm by a serious violent felon, and Level 6 felony escape were stated by our Court in his direct appeal:

On February 28, 2018, Tyrone was moving his belongings out of his house in Indianapolis. He asked his friend, Mike Mahone, to help him lift the heavier objects out of the house. Tyrone also asked his cousin, Terrence Toles, to help. Terrence arrived later that evening, around 8:00 p.m., accompanied by his girlfriend, Channel Tyler. When Terrence and Channel arrived, Tyrone and Mike had finished moving. All four then participated in some combination of drinking beer and tequila, smoking marijuana, and snorting cocaine. Terrence, Mike, and Channel all consumed alcohol, marijuana, and cocaine while Tyrone drank only beer. The four stayed at Tyrone's house, partying late into the night. At some point, Terrence, Channel, and Mike drove to a gas station. Mike was looking for a ride home but ultimately decided not to have Terrence drive him home. All three individuals returned to Tyrone's house, and Terrence asked Channel to get more alcohol. While she was away, Terrence took her chair at the table in the living room. When Channel returned, she sat in the chair closest to the front door. More alcohol was consumed, and Channel asked Tyrone for more cocaine. She told Tyrone she would pay him later and consumed the cocaine. There were no arguments, but there were “words or something” exchanged between Terrence and Tyrone. According to Channel, around 5:00 a.m., Tyrone attacked her, beating her and shooting her multiple times. Terrence fled the house through the back door. Channel crawled from the front door of Tyrone's house to a neighbor's house, and the police were called. When the police arrived on scene, Channel was rushed to the hospital. Her injuries included a broken jaw and gunshot wounds to her head, torso, arm, buttocks, and thigh. Terrence was later found at the back door of another neighbor's house with gunshot wounds to his abdomen and thigh.

Evidence was collected immediately after the victims were sent to the hospital. There were spent shell casings on the floor of the living room, metal fragments collected from the living room and front porch, a shoebox with Aguila-manufactured .45 caliber ammunition for a handgun on the living-room table, and a Glock carrying case in the kitchen. A firearms expert determined that the shell casings found on the scene were manufactured by Aguila and Winchester. Three of the spent shell casings were of the Aguila brand, and all of the spent shell casings matched the caliber of the rounds found in the shoebox. The firearms expert also determined that the bullet jackets had the polygonal markings of a Bersa or Glock handgun.

The State charged Tyrone with two counts of Level 1 felony attempted murder (one for Terrence and one for Channel), Level 4 felony unlawful possession of a firearm, and Level 6 felony escape [for allegedly removing a GPS tracker on the day of the shootings]. A trial was held in July 2019. Tyrone and Channel testified, but Terrence and Mike did not. Ultimately, Tyrone was found guilty of unlawful possession of a firearm and escape. However, the jury hung on the two attempted-murder charges.

A second trial on the attempted-murder charges was held in November 2019. Terrence again chose not to testify. Channel and Mike testified, and Tyrone's testimony from the first trial was introduced as an exhibit. All three presented different versions of what happened on the morning of March 1. Channel testified that around 1:00 or 2:00 a.m., Mike had someone pick him up to take him home. Then, at around 5:00 a.m., Tyrone pulled out a black handgun, shot it into the air, jumped on top of Channel, and began beating her and shooting her with the gun. Channel testified that during this incident, Terrence fled the room, heading toward the kitchen and out the back door of the house. At some point, Tyrone chased after Terrence and left her in the front room of the house. She was then able to open the front door, crawl to a neighbor's house, and get the neighbor to call the police. She testified, “I do not have any doubt in my mind that Tyrone Toles was the one that shot me.”

Mike testified that Terrence and Tyrone had fallen asleep and Channel was sitting in the middle of the room mumbling to herself. Mike stated that while he was outside relieving himself on the side of the house and making calls to get a ride home, he heard the screen door at the front of Tyrone's house slam. He returned to the front of the house a minute or two later. Mike testified that once inside, he saw Tyrone wrestling with another man in a hoodie. Mike stated that after a minute or two of wrestling in the front room, Tyrone ran toward the kitchen and the back of the house. Less than a minute later, Mike heard gunshots, prompting him to flee the scene. He testified that lights were on in the house, but he never saw a gun, could not see where Channel or Terrence were during the wrestling incident between Tyrone and the man in the hoodie, and could not identify the man in the hoodie.

Tyrone testified that he had fallen asleep by the time of the incident. He said that he was woken up by a heavy thump and saw two people wrestling. He stated that upon seeing this, he chose to flee, only reaching the back door of the house when he heard the gunshots coming from the front of his house. He fled out the back door and ran away from the scene. He testified that he came back later that morning and saw ambulances and police on the scene but did not make contact with any of the authorities.

The jury found Tyrone guilty of attempting to murder Channel but not guilty of attempting to murder Terrence. The trial court imposed an aggregate sentence of thirty-five years in the Department of Correction.

Toles v. State, 151 N.E.3d 805, 806-08 (Ind. Ct. App. 2020) (footnote and record citations omitted), trans. denied.

[3] On direct appeal, Toles argued only that Channel's testimony was insufficient to support his conviction for attempted murder. Id. at 808. We concluded that her testimony was sufficient, and we affirmed his conviction. Id. at 809.

[4] Thereafter, Toles filed his petition for post-conviction relief, which he later amended multiple times. Toles, his second trial counsel, and his appellate counsel all then testified to the post-conviction court at an evidentiary hearing on Toles's last-amended petition. Following that hearing, the court entered an order with findings of fact and conclusions of law denying Toles's petition for relief. This appeal ensued.

Standard of Review

[5] Toles appeals the post-conviction court's denial of his petition for post-conviction relief following an evidentiary hearing. Our Supreme Court has made our standard of review in such appeals clear:

Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence. Ind. Post-Conviction Rule 1(1)(b); Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). The scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal. Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012). “Issues available on direct appeal but not raised are waived, while issues litigated adversely to the defendant are res judicata.” Id. The defendant bears the burden of establishing his claims by a preponderance of the evidence. P.-C.R. 1(5). When, as here, the defendant appeals from a negative judgment denying post-conviction relief, he “must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision.” Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000). When a defendant fails to meet this “rigorous standard of review,” we will affirm the post-conviction court's denial of relief. DeWitt v. State, 755 N.E.2d 167, 169-70 (Ind. 2001).

Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019).

The post-conviction court's denial of Toles's petition is not clearly erroneous.

[6] Toles raises numerous challenges to the post-conviction court's denial of his petition. His first four challenges all relate to the performance of his trial attorneys. As our Supreme Court has recognized:

Ineffective assistance of counsel claims are evaluated under the well-known, two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail, [the petitioner] must show that: (1) counsel's performance was deficient based on prevailing professional norms; and (2) the deficient performance prejudiced the defense. Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012) (citing Strickland, 466 U.S. at 687, 104 S. Ct. 2052). “Failure to satisfy either prong will cause the claim to fail.” French v. State, 778 N.E.2d 816, 824 (Ind. 2002).

In analyzing whether counsel's performance was deficient, the Court first asks whether, “ ‘considering all the circumstances,’ counsel's actions were ‘reasonable[ ] under prevailing professional norms.’ ” Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013) (quoting Strickland, 466 U.S. at 668, 104 S. Ct. 2052). Counsel is afforded considerable discretion in choosing strategy and tactics, and judicial scrutiny of counsel's performance is highly deferential. Id.

There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002). Counsel is afforded considerable discretion in choosing strategy and tactics and these decisions are entitled to deferential review. Id. at 746-47 (citing Strickland, 466 U.S. at 689, 104 S. Ct. 2052). Furthermore, isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. Id. at 747 (citations omitted).

To demonstrate prejudice, “the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. 2052.

Conley v. State, 183 N.E.3d 276, 282-83 (Ind. 2022) (brackets original to Conley).

[7] Toles first argues that the post-conviction court erred when it found and concluded that Toles's trial attorneys had not rendered ineffective assistance when they did not request that Toles receive a speedy trial. On this issue, the key point is that, during his initial hearing, Toles requested the appointment of pauper counsel, which the trial court granted. Toles then requested a speedy trial, in response to which the court informed him that any such request would have to come through his appointed counsel. Tr. Vol. 2, pp. 44-45.

[8] Toles argues that his pro se speedy trial request at the initial hearing properly invoked his speedy trial rights and, thus, his ensuing counsels’ failures to enforce those rights was ineffective assistance. But the Indiana Supreme Court has expressly stated that, “once counsel [is] appointed, [a d]efendant sp[eaks] to the court through counsel.” Underwood v. State, 722 N.E.2d 828, 832 (Ind. 2000). Thus, Toles's pro se request at the initial hearing, and ensuing pro se requests he made to the court despite having counsel of record, were not valid requests. See id.

[9] Further, in support of this issue, Toles relies on the majority opinion of our Court in Fletcher v. State, 959 N.E.2d 922, 929 (Ind. Ct. App. 2012), trans. denied. But we have previously recognized that the majority opinion in Fletcher is limited to circumstances where appointed counsel adopts the defendant's speedy trial position. See Black v. State, 7 N.E.3d 333, 337-38 (Ind. Ct. App. 2014). That did not happen here, and Toles does not argue on appeal that his trial counsel acted ineffectively in not adopting his speedy trial requests. See Appellant's Br. at 14-17. Thus, Fletcher is not applicable, and the post-conviction court did not err on this issue.

[10] Toles next asserts that his second trial attorney rendered ineffective assistance for not objecting to the trial court holding the second phase of his first trial. In the first phase of Toles's first trial, the court permitted the State to present its case on the two attempted murder counts. The first jury deadlocked on both of those counts and the court declared a mistrial as to them. The court then proceeded to the second phase, without objection, at which the State argued its case on the escape and unlawful possession of a firearm by a serious violent felon (“SVF”) charges. The jury found him guilty of those two offenses after the second phase of the first trial.

[11] Toles contends that his trial counsel's failure to object to the second phase of his first trial was ineffective assistance for two reasons. First, he asserts that the trial court had instructed the jury that the jury would proceed to phase two only if it found Toles guilty of an offense after phase one. But, had Toles's counsel objected on this point, there is no reason to believe that the trial court would have sustained the objection rather than simply clarifying its procedure to the jury, as nothing in phase two required a guilty verdict from phase one. See, e.g., Isom v. State, 170 N.E.3d 623, 643 (Ind. 2021) (stating that a petitioner claiming ineffective assistance based on a trial attorney's failure to object must show that the trial court “would have sustained counsel's objection”).

[12] Toles also argues that his trial counsel should have objected to the second phase of his first trial because that phase conflated the SVF issues of possession and a prior offense. But the escape charge was premised on Toles's removal of a GPS device, and so the reality of Toles's criminal history was already in play for the jury at the second phase. Trial counsel therefore did not act unreasonably in not demanding further partition of those issues.

[13] Toles's third argument with respect to his trial counsel alleges that his second trial counsel failed to sufficiently preserve the issue of calling a witness, Shirely Cross, at his second trial. But we agree with the State that Toles's counsel sufficiently preserved the issue when counsel informed the court that he had received a last-second voice mail from Cross and explained to the court what Cross had said, namely, that she was the mother of a decedent who had lived with Toles at the time of the shooting and that she had recently learned that, at the time of the shooting, certain third parties were trying to murder her son.

[14] Toles's argument on this issue is focused on trial counsel's purported failure to preserve Cross's proffered testimony. We conclude that trial counsel's statements to the court sufficiently put the court on notice as to what the issue would have been; that said, we also agree with the State that Toles cannot show error in the trial court's exclusion of Cross's testimony. There is no dispute that Cross's testimony was based on hearsay. As such, it was presumptively inadmissible, and Toles has not provided us with any explanation as to why the trial court would have been required to admit her hearsay-based testimony. See Ind. Evidence Rule 802 (“Hearsay is not admissible unless these rules or other law provides otherwise.”).

[15] Toles's last argument with respect to his trial counsel is to argue prejudice from the cumulative effect of the above-alleged errors. But, as we conclude there were no errors, we likewise conclude there was no prejudice, collectively or otherwise.

[16] We thus turn to Toles's two arguments against his appellate counsel. As our Supreme Court has stated:

Claims that appellate counsel were ineffective fall into three general categories of constitutionally deficient performance: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well․ For ․ waiver-of-issues claims, ineffectiveness is very rarely found because deciding which issues to raise is one of the most important strategic decisions to be made by appellate counsel. To prove deficient performance, [the petitioner] needed to show that the unraised claims were significant and obvious upon the face of the record and were clearly stronger than those presented.

Isom, 170 N.E.3d at 650 (citations, alterations, and quotation marks omitted). And, as with allegations of ineffective assistance of trial counsel, allegations of ineffective assistance of appellate counsel must also demonstrate Strickland prejudice. Id.

[17] Toles first argues that appellate counsel should have raised on appeal the issue of whether the trial court's failure to bifurcate the SVF issues in the second phase of his first trial was fundamental error. “Fundamental error is an extremely narrow doctrine that requires an error so flagrant a judge should have raised [the issue] on his own.” Id. at 651. Toles cannot meet that burden here. As explained above, the issue of Toles's criminal history was already before the jury during the second phase of his first trial due to the escape charge; further bifurcation was unnecessary and did not deny Toles a constitutionally fair trial. Thus, even if his appellate counsel had raised this issue on direct appeal, Toles would not have prevailed, and he cannot have been prejudiced by appellate counsel's decision here.

[18] Toles also asserts that his appellate counsel was ineffective for not raising the issue of whether Cross should have been permitted to testify. But, as explained above, Toles has not shown that Cross's testimony was admissible evidence. Thus, had appellate counsel raised this issue on appeal, it also would have been unsuccessful, and Toles has again not demonstrated the required Strickland prejudice.

Conclusion

[19] For all of these reasons, we affirm the post-conviction court's denial of Toles's petition for post-conviction relief.

[20] Affirmed.

Mathias, Judge.

Judges May and Bradford concur. May, J., and Bradford, J., concur.