WALTERS v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Antonio Walters appeals, pro se, the post-conviction court's order denying his petition for post-conviction relief (“PCR”). We affirm.

Issues

[2] Walters purports to raise three issues, which we restate as the following issues and sub-issues:

1. Whether he waived his claims; specifically,

a. Whether he waived his Fifth Amendment claims when he withdrew them at his PCR hearing.

b. Whether he waived his abuse of discretion claims by failing to raise them in his PCR petition.

c. Whether he has waived his Fourth Amendment claims by failing to provide cogent argument and because those claims were known, available, and not raised at trial and/or direct appeal.

2. Whether the post-conviction court erred in denying Walters's claims of ineffective assistance of trial counsel.

Facts and Procedural History

[3] On December 23, 2013, Thomas Harper contacted Kenneth Baker and arranged to purchase marijuana from Baker. Baker, Chai Graham, and Devonte Patrick drove to the location Baker had designated to meet Harper. Patrick drove with Graham in the front passenger seat and Baker in the back seat. When they arrived at the designated location, Harper and then seventeen-year-old Walters entered the back seat of the vehicle. Baker handed the marijuana to Harper who began whispering to Walters. Baker became nervous and grabbed the marijuana. Walters drew a handgun from his pants and pointed it at Baker's head. Harper also drew a gun and pointed the weapon at Baker. Walters and Harper then exited the vehicle. Walters demanded, “give me all the sh*t or I'm going to kill ya'll.” Ex. at 74. Patrick put the vehicle in reverse and began to back away. Walters and Harper started shooting, striking Patrick and causing the vehicle to crash. Walters and Harper fled the scene. Patrick died from a gunshot wound to the chest.

[4] On March 24, 2014, the State charged Walters with felony murder. Walters was arrested in Minnesota in September 2016 and extradited to Indiana in February 2017. Deputy Public Defender Christopher Crawford was appointed to represent Walters and entered his appearance on February 13, 2017. To prepare for a possible trial, Crawford met with Walters at the Elkhart County Jail several times and reviewed the discovery with him. Crawford scheduled depositions with witnesses and attempted to meet with Walters's co-defendant, Harper.

[5] After reviewing the discovery, Crawford had numerous conversations with prosecutors and negotiated a plea. Crawford then discussed the proposed plea and executed sentencing cap with Walters. Crawford reviewed with Walters the “Motion to Withdraw Plea of Not Guilty and Enter Plea of Guilty, Plea Agreement, and Disclosure[.]” Id. at 59. Walters initialed the individual paragraphs of the plea agreement and signed it with Crawford on September 20, 2017.

[6] At the guilty plea hearing on September 21, 2017, Deputy Public Defender Matthew Johnson appeared in place of Crawford on behalf of Walters. Walters testified that he had no “mental or emotional disability[.]” Id. at 6. Walters confirmed that he had reviewed the plea agreement with both Crawford and Johnson. Walters stated that he understood that he was pleading guilty to murder with an executed cap of fifty-five years. The trial court explained that the sentencing cap meant the court could not sentence Walters to an executed sentence of more than fifty-five years but could impose a suspended sentence in addition to those fifty-five years. Walters stated he understood and that he had no questions regarding the executed cap. The trial court informed Walters of the rights he was waiving by pleading guilty, and Walters affirmed his understanding. Walters repeatedly reaffirmed his understanding that he was pleading guilty to the charge of murder. He affirmed that, by doing so, he was “admitting the truth of all the material facts set forth in the charging information.” Id. at 13.

[7] The trial court explained the possible penalties for murder, and Walters stated he understood the possible penalty range and fines. Walters testified he understood what the trial court could consider when determining his sentence. Walters testified that he was not induced, forced, or threatened into pleading guilty, and that his guilty plea was his “own, free, and voluntary act[.]” Id. at 16. Walters confirmed that he was satisfied with his attorneys, felt they were “properly representing” him, and did not feel there was anything else his lawyers should have done for him. Id.

[8] Walters testified that he and Harper met with Baker with the intention of robbing Baker of marijuana, and that, during the course of that robbery, they shot at and killed Patrick. Walters then admitted that on December 23, 2013, he “committed the offense of Murder, a Felony.” Id. at 22.

[9] Prior to sentencing, Crawford reviewed the pre-sentence investigation (“PSI”) report and provided a copy to Walters. On October 12, 2017, Walters, pro se, filed a motion to withdraw his guilty plea and a letter to the court requesting the same. The trial court declined to accept Walters's motion to withdraw his guilty plea because Walters was represented by counsel. Crawford was unaware that Walters had filed a motion to set aside his guilty plea. Crawford filed a sentencing memorandum requesting that Walters be sentenced to fifty years with five suspended to probation.

[10] Crawford reiterated the arguments in his sentencing memorandum at the October 19 sentencing hearing and supported those arguments with numerous factors the trial court should find mitigating, such as Walter's young age, employment history, church involvement, childhood, that he was supporting his child, that he was a good candidate for rehabilitation, and that his alleged criminal history was disputed. The trial court noted, and the parties agreed, that the “PSI needs to be reviewed by probation and corrected by probation as to credit time that Mr. Walters would be entitled to from the time of his arrest through his return here to Elkhart County.” Id. at 29. Walters then affirmed to the court that he had no other “corrections or amendments” to the PSI report. Id. Walters affirmed that he understood the sentencing hearing was being conducted because he had “entered a plea of guilty to Murder, a Felony.” Id. at 24. Walters further stated, “I just want to say to that [victim's] family that I'm sorry for my, um, participation in that hideous crime.” Id. at 50.

[11] The trial court sentenced Walters to sixty years with five years suspended to probation. The court noted that it was a “big mitigator” that Walters had accepted responsibility for his crime at the sentencing hearing, although it was an aggravating circumstance that he had initially refused to take responsibility and instead had fled to another state prior to being apprehended for the crime. Id. at 51.

[12] On May 3, 2022, Walters, by counsel, filed a petition for post-conviction relief. The petition asserted the following grounds for relief: (1) Walters's Fourth Amendment and state constitutional rights were violated because there was a lack of probable cause for the search of his phone calls from prison and he had not been not advised of his Miranda rights; (2) Walters's Fifth Amendment and state constitutional rights were violated by, among other things, the trial court's denial of his motion to terminate counsel and failure to determine whether his guilty plea was voluntary; and (3) Walters's Sixth Amendment right to counsel was violated by his trial counsel's ineffective assistance.

[13] At the May 1, 2024, evidentiary hearing on the PCR petition, Crawford testified about the legal assistance he had provided to Walters. Among other things, Crawford testified that he discussed the plea agreement with Walters, reviewed discovery with Walters, and provided Walters with a copy of the PSI report. Crawford testified that, at the time of the sentencing hearing, he was not aware that Walters wished to withdraw his guilty plea and had filed documents to do so, pro se. Attorney Matthew Johnson also testified that he had “cover[ed]” Walters's guilty plea hearing in place of Crawford, a fellow public defender. Tr. at 59.

[14] Walters also testified. He asserted, among other things, that he had only twenty minutes to review the plea agreement before signing it, that Crawford had told him he would receive a “minimum sentence, no more than thirty years,” and that he did not understand the plea agreement because Crawford did not “go over” its terms. Id. at 72-73. Walters testified that he told Johnson at the plea hearing that he “didn't want to continue with this plea” and had “filed a motion and noticed the court.” Id. at 74.¹ Walters testified that, because Johnson told him he was “just [t]here to answer yes, no questions,” Walters felt “pressured into continuing with the plea.” Id. Walters testified that, despite his initials and signature on the plea agreement and his statements to the trial court at the plea hearing, he “didn't understand the charges of murder.” Id. at 75. Walters testified that his “comprehension of reading is low” so he must have written statements explained to him. Id. at 78. Walters testified that he met with Harper on December 23, 2013, to buy marijuana, not to steal it, and that he had accidentally discharged his gun. He testified that he thought he was pleading guilty to a lesser-included offense to murder and a maximum prison sentence of thirty years.

[15] Following the conclusion of testimony, Walters withdrew all of the due process claims contained in “all of paragraph [8](b)” of his PCR petition. Id. at 98. He also withdrew his claim based on “Miranda[.]” Id. at 97-98. The PCR court ordered the parties to submit proposed findings of fact and conclusions of law. On November 27, 2024, the PCR court issued an order, with findings and conclusions, denying Walters's PCR petition. This appeal ensued.

Discussion and Decision

[16] Walters appeals the denial of his petition for PCR.

The defendant bears the burden of establishing his claims by a preponderance of the evidence. [Ind. Post-Conviction Rule] 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), cert. denied.

[17] “Where the post-conviction court makes findings of fact and conclusions of law as required by Post–Conviction Rule 1(6) we will reverse its findings only upon a finding of clear error, namely that which leaves us with a definite and firm conviction that a mistake has been made.” Ellis v. State, 67 N.E.3d 643, 646 (Ind. 2017) (citation modified). “Because this clearly erroneous standard is a review for sufficiency of evidence, we neither reweigh the evidence nor determine the credibility of witnesses; rather, we consider only the evidence that supports the judgment and the reasonable inferences to be drawn from that evidence.” State v. Greene, 16 N.E.3d 416, 418 (Ind. 2014) (citation modified). We review questions of law de novo. E.g., Grundy v. State, 38 N.E.3d 675, 684 (Ind. Ct. App. 2015), trans. denied.

[18] Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence. P-C.R. 1(1); 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.

Gibson, 133 N.E.3d at 681. A post-conviction petitioner may overcome a procedural bar to a claim, on the ground of fundamental error, only by asserting either: (1) deprivation of the Sixth Amendment right to effective assistance of counsel, or (2) an issue demonstrably unavailable to the petitioner at the time of trial and direct appeal. White v. State, 971 N.E.2d 203, 207 (Ind. Ct. App. 2012), trans. denied.

Issue One: Waiver 2

Fifth Amendment and Art. 1, § 12 Claims

[19] The rules of post-conviction relief provide that “[a]ll grounds for relief available to a petitioner under [P-CR Rule 1] must be raised in his original petition.” P-C.R. 1(8). Moreover, “it is an essential principle of appellate procedure that a claim is not normally available for review on appeal unless [it is] first made [in the] trial [court].” Oberhansley v. State, 208 N.E.3d 1261, 1269 (Ind. 2023) (citation modified).

In general “waiver” connotes an “intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quotation omitted). And appellate review presupposes that a litigant's arguments have been raised and considered in the trial court․ Declining to review an issue not properly preserved for review is essentially a “cardinal principal of sound judicial administration.” [Freytag v. Comm'r of Internal Revenue, 501 U.S. 868, 895, 111 S. Ct. 2631, 115 L. Ed. 2d 764 (1991) (Scalia, J., concurring).]

Plank v. Cmty. Hosp. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013)

[20] Walters's statement of the first issue he raises in his PCR appeal is: “Throughout the entirety of the proceedings, the Petitioner's constitutional rights to Due Process of Law were violated as the outcome undermined fairness, resulting in the Trial Court's abuse of discretion.” Appellant's Br. at 9. Walters raised Fifth Amendment Due Process claims and Art. 1, § 12 due course of law claims in paragraph 8(b) of his PCR petition, including a claim that the trial court failed to “examine whether [his] guilty plea was knowing, intelligent, and voluntary.” App. at 83. However, at his PCR hearing, Walters withdrew his “Fifth Amendment Miranda” claims and “all of paragraph [8](b)” in his PCR petition, and the PCR court ruled that those claims were withdrawn. Tr. at 97-98. Thus, to the extent Walters purports to raise federal and state due process claims on appeal—including a claim that his guilty plea was not voluntary—he intentionally relinquished, abandoned, and waived those claims by withdrawing them from the PCR court's consideration at the PCR hearing. See Plank, 981 N.E.2d at 53.

Abuse of Discretion Claims

[21] Walters also purports to raise on appeal claims that the trial court “abused its discretion” by denying his motion to withdraw his guilty plea and failing to “hold a hearing or make an adequate inquiry into the reasons for the motion.” Appellant's Br. at 15. Walters also asserts that the trial court “improperly exceed[ed] the plain terms of the [plea] agreement.” Id. at 19. However, Walters did not raise any such claims in his PCR petition. Issues which are not raised in a post-conviction petition are waived. See P-C.R. 1(8); see also, e.g., Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002) (citation modified) (“Any issues not raised in the petition for post-conviction relief may not be raised for the first time on post-conviction appeal.”). Walters waived his abuse of discretion claims by failing to raise them in his petition for PCR.

Fourth Amendment Claims

[22] Walters also contends on appeal that “his trial counsel failed to file a motion to suppress or otherwise challenge the probable cause finding, violating his right under the Fourth Amendment to the United States Constitution.” Appellant's Br. at 31. To the extent Walters purports to raise free-standing Fourth Amendment claims separate from his ineffective assistance of counsel claims, he has waived those claims for the following reasons.

[23] First, Walters has failed to provide cogent argument and supporting legal authority for his Fourth Amendment claims. Although Walters brings this appeal pro se,

[i]t is well settled that pro se litigants are held to the same legal standards as licensed attorneys. Twin Lakes Reg'l Sewer Dist. v. Teumer, 992 N.E.2d 744, 747 (Ind. Ct. App. 2013). This means that pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so. Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004).

Lowrance v. State, 64 N.E.3d 935, 938 (Ind. Ct. App. 2016), trans. denied.

[24] Indiana Appellate Rule 46(A)(8)(a) requires that each contention in an appellant's brief must be “supported by cogent reasoning” and “by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal.” When an appellant provides no cogent argument for a contention, that contention is waived. See, e.g., Burnell v. State, 110 N.E.3d 1167, 1171 (Ind. Ct. App. 2018) (noting the presentation of the appellant's contentions must contain a clear showing of how the issues and contentions relate to the particular facts of the case under review, and we will not review undeveloped arguments). Similarly, when an appellant provides no citation to legal authority supporting his contentions, those contentions are waived. E.g., Shields v. Town of Perrysville, 136 N.E.3d 309, 312 n.2 (Ind. Ct. App. 2019). Thus, under our Appellate Rules, “[i]t is not sufficient for the argument section that an appellant simply recites facts and makes conclusory statements without analysis or authoritative support.” Kishpaugh v. Odegard, 17 N.E.3d 363, 373 n.3 (Ind. Ct. App. 2014); see also Lane Alan Schrader Tr. v. Gilbert, 974 N.E.2d 516, 521 (Ind. Ct. App. 2012) (noting Rule 46(A)(8) “prevents the court from becoming an advocate when it is forced to search the entire record for evidence in support of [a party's] broad statements”).

[25] In his brief, Walters makes conclusory statements that, had his lawyer “filed a motion to suppress,” it likely would have been granted. Appellant's Br. at 31. However, he does not explain what evidence should have been suppressed or what legal authority would support suppression. Rather, he cites only a vacated Indiana case ³ and a federal Ninth Circuit Court of Appeals case,⁴ neither of which are binding precedent and both of which are related to ineffective assistance of counsel claims rather than Fourth Amendment claims. He cites no legal authority for his contention that a warrant was required in order to “eavesdrop[ ]” on his jail phone calls. Id. at 32.⁵ Because Walters failed to provide cogent analysis and supporting legal authority for his Fourth Amendment claims, those claims are waived.

[26] Even if Walters had not waived his Fourth Amendment claims through his failure to comply with the Indiana Rules of Appellate Procedure, those claims cannot be raised in a post-conviction proceeding.

“Post-conviction procedures do not provide a petitioner with an opportunity to present freestanding claims that contend the original trial court committed error.” Wrinkles v. State, 749 N.E.2d 1179, 1187 n. 3 (Ind. 2001). Rather, “ ‘[i]n post-conviction proceedings, complaints that something went awry at trial are generally cognizable only when they show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal.’ ” Bunch v. State, 778 N.E.2d 1285, 1289-90 (Ind. 2002) (quoting Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002)). “An available grounds for relief not raised at trial or on direct appeal is not available as a grounds for collateral attack.” Canaan v. State, 683 N.E.2d 227, 235 (Ind. 1997).

Myers v. State, 33 N.E.3d 1077, 1115 (Ind. Ct. App. 2015), trans. denied. Walters's Fourth Amendment claims were available, but not raised, at trial or on direct appeal. Thus, in this PCR action, Walters may only raise the failure to seek suppression of evidence within the context of his ineffective assistance of trial counsel claims.

Issue Two: Ineffective Assistance of Trial Counsel

[27] Walters contends that his trial counsel provided ineffective assistance, thereby denying him his Sixth Amendment right to effective assistance of counsel.

When evaluating an ineffective assistance of counsel claim, we apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). See Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first prong, “the defendant must show deficient performance: representation that fell 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) (citing Strickland, 466 U.S. at 687-88). To satisfy the second prong, “the defendant must show prejudice: a reasonable probability (i.e.[,] a probability sufficient to undermine confidence in the outcome) that, but for counsel's errors, the result of the proceeding would have been different.” Id. (citing Strickland, 466 U.S. at 694).

Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017). Failure to satisfy either of the two prongs will cause the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). Indeed, most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.

[28] “[C]ounsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002). 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).

[29] Walters contends that his counsel rendered ineffective assistance when he: failed to pursue a lesser-included offense to murder and “other viable defenses,” Appellant's Br. at 26; failed to investigate his case; failed to file a motion to suppress evidence and a motion to withdraw guilty plea; failed to adequately advise him regarding the plea; and failed to appear at court hearings. We address each contention in turn.

Lesser-Included Offenses

[30] Walters asserts that his trial counsel was ineffective for failing to pursue “lesser-included offenses and possible viable defenses” such as voluntary manslaughter, involuntary manslaughter, and reckless homicide.⁶ Appellant's Br. at 17. “If a petitioner is convicted pursuant to a guilty plea and later claims that his counsel rendered ineffective assistance because counsel overlooked or impaired a defense, the petitioner must show that a defense was indeed overlooked or impaired and that the defense would have likely changed the outcome of the proceeding.” Maloney v. State, 872 N.E.2d 647, 650 (Ind. Ct. App. 2007) (citing Segura v. State, 749 N.E.2d 496, 499 (Ind. 2001)); see also Soucy v. State, 22 N.E.3d 683 (Ind. Ct. App. 2014) (“In order to set aside a conviction because of an attorney's failure to raise a defense, a petitioner who has pled guilty must establish that there is a reasonable probability that he or she would not have been convicted had he or she gone to trial and used the omitted defense.”).

[31] Here, Walters points to no record evidence that his counsel did not consider possible defenses to the murder charge. In fact, his counsel testified at the PCR hearing that took place four years after the plea that he did attempt to negotiate a better plea but could not remember exactly what he “would have suggested in that regard, whether it was an aggravated type of situation, as opposed to an intentional act in the murder aspect of it.” Tr. at 15. Therefore, Walters has failed to satisfy the first prong of Strickland, i.e., showing deficient performance.

[32] Moreover, Walters has provided no cogent argument or supporting legal authority showing the pursuit of an alleged “lesser included offense” to felony murder or some other unspecified defense would have changed the outcome of his case. Rather, we note that “[t]he absence of specific intent to kill in an allegation of felony murder signifies not that all lesser levels of culpability are included therein, but rather that none are; no lesser homicide offenses are included in the crime of felony murder.” Hopkins v. State, 582 N.E.2d 345, 352 (Ind. 1991); see also Burns v. State, 722 N.E.2d 1243, 1246 n.2 (Ind. 2000) (“Reckless homicide is not a lesser included offense of felony murder.”). Thus, Walters has also failed to satisfy the second prong of Strickland, i.e., showing prejudice.

Investigation

[33] Walters maintains that his trial counsel was ineffective for failing to adequately investigate his case.

Under Strickland, counsel has the duty to act reasonably under prevailing professional norms, including conducting reasonable investigations. Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003). In determining whether an investigation was reasonable, courts ask whether the known evidence would lead a reasonable attorney to investigate further. Id. at 527, 123 S. Ct. 2527. And like all performance under Strickland, decisions about what and how much to investigate are given a “heavy measure of deference”. Rompilla v. Beard, 545 U.S. 374, 381, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005) (cleaned up).

Isom, 170 N.E.3d at 640. “[C]laims of ineffective assistance of counsel based on a failure to investigate require[ ] a showing of what additional information may have been garnered from further consultation or investigation and how that additional information would have aided in the preparation of the case.” Turner v. State, 974 N.E.2d 575, 585 (Ind. Ct. App. 2012) (citing Coleman v. State, 694 N.E.2d 269, 274 (Ind. 1998)), trans. denied.

[34] The evidence at the PCR hearing established that Walters's trial counsel reviewed discovery, including the probable cause affidavit and charging information, spoke with Walters, scheduled depositions with witnesses, and attempted to meet with Walters's co-defendant. Based on that investigation, trial counsel “felt comfortable” in advising Walters to plead guilty. Tr. at 55. That determination was supported by Walters's admissions at the guilty plea hearing and his acceptance of responsibility and apology to the victim's family at the sentencing hearing.

[35] Walters has failed to carry his burden of showing that his trial counsel's investigation was not reasonable and not part of a reasonable trial strategy. See, e.g., Isom, 170 N.E.3d at 640. Walters has not shown how or why a reasonable attorney would have investigated further; that is, he has not shown “what additional information may have been garnered from further consultation or investigation and how that additional information would have aided in the preparation of the case.”⁷ Turner, 974 N.E.2d at 585. As he did at the PCR hearing, he simply makes conclusory statements that his counsel's alleged failure to do unspecified further investigation “prevented [Walters] from going to trial and putting the [S]tate's case to an adversarial testing.” Appellant's Br. at 27. Such bald claims are insufficient to show ineffective assistance of counsel for failure to investigate. See Turner, 974 N.E.2d at 585.

Filing of Motions

[36] Walters maintains that his trial counsel was ineffective for failing to file certain motions—specifically, a motion to suppress and a motion to withdraw guilty plea.

The decision of whether to file a particular motion is a matter of trial strategy, and, absent an express showing to the contrary, the failure to file a motion does not indicate ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim based upon counsel's failure to file motions on a defendant's behalf, the defendant must demonstrate that such motions would have been successful.”

Moore v. State, 872 N.E.2d 617, 620-21 (Ind. Ct. App. 2007) (citation modified), trans. denied.

[37] As previously noted, Walters's Fourth Amendment claims, including his claims regarding a motion to suppress evidence, may only be addressed in this PCR action to the extent he asserts that his counsel was ineffective for failing to seek suppression of evidence based on those Fourth Amendment claims. See, e.g., Myers, 33 N.E.3d at 1115. However, as also previously noted, Walters has waived such claims by failing to provide cogent argument and supporting legal authority as required under Appellate Rule 46(A)(8). That is, Walters does not identify what evidence should have been suppressed, nor does he provide any supporting legal authority for his vague claim that a warrant was required in order to constitutionally “eavesdrop[ ]” on his jail phone calls. Appellant's Br. at 32.

[38] Similarly, although Walters asserted in his PCR petition that his trial counsel “failed to file a motion to withdraw [his] guilty plea,” App. at 84, he does not cogently present such an assertion in this appeal. Regarding such a motion, Walters only states: “[His trial counsel] testified during the PCR Hearing that he'd have taken the appropriate steps for the court to consider ․ withdraw[ing] the plea agreement had he been made aware of [Walters's] desire not to go forward with the plea.” Appellant's Br. at 25. Walters then questions how his counsel could not have known about his “desire not to go forward” with the plea, but he does not assert that his counsel was ineffective for failing to file a motion to withdraw his guilty plea. Walters's failure to present cogent argument on this issue waives it. See App. R. 46(A)(8); see also Burnell, 110 N.E.3d at 1171 (noting we will not review undeveloped arguments).

[39] Moreover, even if he had not waived the claim that his counsel was ineffective for failing to file a motion to withdraw his guilty plea, that claim would still fail because Walters fails to make “an express showing” that such a motion would have been successful. Moore, 872 N.E.2d at 620. A court “may allow the defendant by motion to withdraw his plea of guilty ․ for any fair and just reason unless the state has been substantially prejudiced by reliance upon the defendant's plea.” I.C. § 35-35-1-4(b). Any such motion “shall state facts in support of the relief demanded․” Id. However, here, Walters's only evidence in support of a motion to withdraw his guilty plea is his own self-serving testimony at the PCR hearing that he did not understand the terms and consequences of his guilty plea. That testimony not only contradicts the signed guilty plea and his trial counsels’ testimonies but also contradicts his own prior sworn testimony at his guilty plea and sentencing hearing. Thus, the PCR court specifically found Walters's testimony at the PCR hearing not to be credible.

[40] Walters has failed to show that a motion to withdraw his guilty plea was likely to be successful if it had been filed by his trial counsel. His contentions to the contrary are requests that we reweigh evidence and judge witness credibility, which we will not do. See e.g., Greene, 16 N.E.3d at 418.

Advice Regarding Plea Agreement

[41] Walters contends that his trial counsel was ineffective for failing to adequately advise him regarding the terms and consequences of the guilty plea agreement.

A defendant's Sixth Amendment right to counsel extends to the plea-bargaining process. During plea negotiations defendants are entitled to the effective assistance of competent counsel․ The two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel. The performance prong of Strickland requires a defendant to show that counsel's representation fell below an objective standard of reasonableness.

Lafler v. Cooper, 566 U.S. 156, 162-63 (2012) (citation modified); see also Missouri v. Frye, 566 U.S. 134, 145 (2012) (citation modified) (“As a general rule, 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.”). To establish the Strickland prejudice prong, “a 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.” Lafler, 566 U.S. at 163 (citation modified).

[42] Here, Walters fails on the first prong of Strickland because he has not shown that his trial counsel's performance was deficient. Walters's trial counsel testified at the PCR hearing that he reviewed the discovery, PSI report, and written plea offer with Walters, “explained that forty-five (45) to sixty-five (65) years was possible, and discussed what an executed cap of fifty-five (55) years meant.” Appealed Order at 12. Walters initialed each paragraph of the plea agreement and signed it.

[43] Walters testified, on the other hand, that his trial counsel did not review discovery with him, did not “go over” each paragraph of the plea agreement with him, Tr. at 73, gave him only twenty minutes to review the plea agreement which was not “enough time,” id. at 72, recommended that he sign the plea agreement, and told him he would “receive a minimum sentence, no more than 30 years,” id. Walters said he thought, by signing the plea agreement, he was pleading to a “lesser-included offense of murder” for which he would receive “a maximum of 30 years at DOC.” Id. at 92. He also stated that he “didn't even know about any rights” that he had or was giving up. Id. at 74. Walters said he had testified at the plea hearing that he understood the plea agreement and his rights even though he did not; he asserts that he did so because his trial counsel “recommended [that he] say yes and no to these [plea hearing] questions.” Id. at 91.

[44] Walters's testimony directly conflicts with his trial counsel's testimony. However, the PCR court specifically found Walters's testimony at the PCR hearing to be “not credible,” given the “totality of the evidence,” including Walters's own prior conflicting testimony. Appealed Order at 16. The court further found that, other than Walters's self-serving testimony at the PCR hearing, “[t]here is no other evidence about any lesser [included] offense or a sentence of thirty (30) years.” Id. Thus, Walters has failed to provide evidence that his attorney provided ineffective assistance by misleading him about the plea agreement and/or failing to adequately notify him of the terms and consequences of the plea agreement. His contentions to the contrary are requests that we reweigh evidence and/or judge witness credibility, which we may not do. See, e.g., Greene, 16 N.E.3d at 418.⁸

Absence from Court Hearings

[45] Finally, Walters maintains that his trial counsel—specifically, Crawford—failed to provide effective assistance when he failed to appear at two hearings and a status conference. However, Crawford ensured that Johnson appeared for him, on behalf of Walters, at both hearings, thus assuring that Walters had legal representation. Therefore, Walters has failed to show that his trial counsel's representation “fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the counsel guaranteed by the Sixth Amendment,” as required under the first prong of Strickland. McCary, 761 N.E.2d at 392.

[46] The evidence did support Walters's assertion that neither Crawford nor substitute counsel appeared on his behalf at a June 29, 2017, status conference. However, the trial court simply reset the conference to a later date; therefore, Walters “was not prejudiced” by his counsel's actions or inactions as required under the second prong of Strickland. Appealed Order at 11.

Conclusion

[47] Walters waived his Fifth Amendment claims—including his challenge to the voluntariness of his guilty plea—by withdrawing those claims in the PCR court and not including them in his proposed findings and conclusions. He waived his free-standing abuse of discretion claims by failing to raise them in his PCR petition and not including them in his proposed findings and conclusions. Walters waived his free-standing Fourth Amendment claims by failing to provide cogent arguments and supporting legal authority, and because those claims were available but not raised at trial or on direct appeal. And Walters failed to meet his burden to show that his trial counsel was ineffective in violation of his Sixth Amendment rights.

[48] Affirmed.

FOOTNOTES

1.   We note that the plea hearing at which Walters alleged that he informed Johnson of his motion to withdraw his guilty plea took place on September 21, but Walters did not file his motion and letter seeking to withdraw his guilty plea until October 12.

3.   Helton v. State, 886 N.E.2d 107 (Ind. Ct. App. 2008), vacated by Helton v. State, 907 N.E.2d 1020 (Ind. 2009).

4.   U.S. v. Alvarez-Tautimez, 160 F.3d 573 (9th Cir. 1998).

5.   As previously noted, Walters waived his other claim that he should have been advised of his “Miranda rights” prior to such “eavesdropping[,]” Appellant's Br. at 32, when he specifically withdrew it from his PCR petition at the PCR hearing.

6.   The State addresses an alleged argument by Walters that his counsel was defective for failing to assert a claim of self-defense. However, Walters does not make an argument related to self-defense; therefore, we do not address that issue.

7.   Walters's contention that some unspecified additional investigation “could have opened doors for other viable defenses” is mere speculation and also fails for the reasons already discussed in the prior subsection of this decision, i.e., “Lesser-Included Offenses”. Appellant's Br. at 26.

8.   Walters also alleges that his counsel's “coercion and insistence that [he] accept the plea agreement” violated his constitutional right to counsel. Appellant's Br. at 23. However, those allegations go to the voluntariness of the plea, which is distinct from a claim of ineffective assistance of counsel. See, e.g., Nix v. State, 212 N.E.3d 194, 203 (Ind. Ct. App. 2023) (citation modified) (“Review of the voluntariness of a plea focuses on whether the defendant knowingly and freely entered the plea, in contrast to ineffective assistance, which turns on the performance of counsel and resulting prejudice.”), trans. denied. And, as previously noted, at the PCR hearing, Walters withdrew his involuntary guilty plea claim—which was contained in paragraph 8(b) of his PCR petition—when he specifically stated that he withdrew “[a]ll of paragraph (b) as in boy.” Tr. at 98. Therefore, Walters may not pursue that claim in this appeal. See, e.g., Oberhansley, 208 N.E.3d at 1269; Plank, 981 N.E.2d at 53.

Bailey, Judge.

Brown, J., and Weissmann, J., concur.