Deshawn Howard, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Deshawn Howard appeals the denial of his petition for post-conviction relief. On cross-appeal, the State argues that we should dismiss the belated appeal. We affirm.

Facts and Procedural History

[2] In 2013, law enforcement utilized confidential sources to conduct two separate controlled buys from Howard. See Howard v. State, No. 20A05-1609-CR-2064, 2017 WL 2687735, at *1-2 (Ind. Ct. App. June 22, 2017). On January 30, 2015, the State charged Howard with two counts of class A felony dealing in cocaine in, on, or within 1000 feet of a family housing complex. Id. at *2. The State also alleged Howard to be an habitual offender. Id.

[3] On July 18, 2016, the first day of a two-day jury trial, Howard's counsel, Attorney Christopher Crawford, stated that he “did speak with Mr. Howard regarding habitual phase of things,” stated that an aspect would “require the court sorting through a lot of case law,” and referenced a “change of law as it related to the habitual offender.” Trial Transcript Volume II at 21-22. He also stated:

So the question becomes does the court consider the new habitual offender law or is even the habitual offender law going to be appropriate in light of the fact that when the conviction would to take place in connection with this. And we believe this is a critical legal and factual issue that would be best left to the court's deference in regards to this matter if we get to that point. And Mr. Howard and I did discuss that at length yesterday and we believe that in light of the complexity of the situation, it may make more sense for your Honor to make that decision as it relates, if it becomes appropriate.

Id. at 22. Howard's counsel then asked, “And then, Mr. Howard, that is your understanding and you're okay with doing a bench trial as it relates to that issue if it does come up.” Id. Howard answered, “Yeah.” Id.

[4] The following exchange then occurred:

THE COURT: And you had a conversation with your attorney in regards to the habitual offender portion of this trial or phase of this trial. Is that correct?

[Howard]: Yes.

THE COURT: And you feel that it's in your best interest not to have that go to the jury for the determination that, in your opinion and your attorney's opinion, that that is more of a legal argument that is going to require some studying of case law and to delve into some intricacies as to what law applies when. Is that correct?

[Howard]: Yes.

THE COURT: And that you would prefer that the judge make that decision, or myself make that decision, as opposed to allowing that decision to be made by the jury. Is that correct?

[Howard]: Yes.

* * * * *

THE COURT: All right. So if and when we get to that place then, if there is a conviction then we will just let the jury go․

Id. at 23.

[5] After closing arguments and final instructions, the court and the parties discussed the habitual offender enhancement. The prosecutor stated that Howard is “not admitting that he is in fact an habitual offender” and that he “is admitting to the conduct that the State alleges makes him a habitual offender.” Trial Transcript Volume III at 116. The following exchange then occurred:

THE COURT: Right. I guess he's admitting that he is the one – [Defense Counsel]: Just those offenses.

THE COURT: – that committed the underlying offenses from before, but not that he – not that that would constitute being a habitual offender due to the changes in the law and the nuances that –

[Defense Counsel]: Correct.

THE COURT: – we've already discussed.

[Defense Counsel]: That's what we will be arguing in our briefing to Your Honor.

Id. at 117. Howard then admitted that he committed escape in 2002 and pled guilty to and was sentenced in 2003 under cause number 20D05-0203-DF-70. He also admitted that he committed dealing in cocaine as a class B felony in 2007 and was convicted in 2009 under cause number 20D03-0710-FB-75. The court indicated it would give the parties fourteen days to file a brief regarding the impact of the change in the law on the habitual offender issue if the jury returned a guilty verdict. The jury found Howard guilty of the two dealing counts.

[6] On August 8, 2016, Howard filed a Memorandum on Habitual Offender Charge in which he referenced a change in the law, argued that “the old habitual offender statute would not apply,” and requested that the court dismiss the habitual offender allegation. Direct Appeal Appellant's Appendix Volume II at 77.

[7] On August 18, 2016, the court held a sentencing hearing. The court sentenced Howard to concurrent terms of forty years for each count of dealing to be served as ten years in the Department of Correction, followed by fifteen years in community corrections, and fifteen years of reporting probation. The court enhanced the sentence by thirty years due to his status as an habitual offender.

[8] On direct appeal, Howard argued that the trial court abused its discretion when it admitted video recordings of events inside the confidential source's vehicle pursuant to the silent witness theory and that the evidence was insufficient to sustain his convictions. Howard, 2017 WL 2687735, at *2. This Court affirmed. Id. at *5.

[9] On May 25, 2021, Howard, pro se, filed a petition for post-conviction relief. On January 25, 2024, Howard, by counsel, filed an Amendment to Petition for Post-Conviction Relief asserting that the trial court committed fundamental and structural error in failing to adequately advise him of his right to have a jury determine whether he was an habitual offender. He asserted that his trial counsel performed deficiently by not assuring that he was properly advised of his right to a jury determination of whether he was an habitual offender. He also argued that his appellate counsel performed deficiently by not raising the inadequate advisement on direct appeal.

[10] On May 24, 2024, the court held a hearing. Howard's counsel presented the testimony of his trial counsel, Attorney Crawford, and his appellate counsel in the direct appeal, Attorney Marielena Duerring. Attorney Crawford testified that he remembered “[l]imited details” regarding Howard's case. Transcript Volume II at 6. When asked what he remembered about the habitual offender proceedings, Attorney Crawford stated in part that he was “having a hard time remembering a lot of that too” and “I do not recall the extent of conversations that I had with Mr. Howard regarding the habitual criminal offender phase.” Id. at 6-7. When asked if he remembered any discussions with Howard regarding whether he had the right to have a jury determine whether he was an habitual offender, he answered, “That I cannot remember if I had that discussion with him.” Id. at 7. On cross-examination, the prosecutor asked, “[I]s it your general practice to advise your client but prior to if they decide to waive jury on the second phase, is it your practice to tell them that they have a right to a jury trial?” Id. at 11. Attorney Crawford answered, “I would say in most cases. This was a unique circumstance in light of briefs being submitted after the fact. So this was somewhat unique in that regard.” Id. He testified that he had extensive discussion with Howard regarding the habitual offender issue as it related to the “changes in the law and drafting the brief” and “[a]ny other conversation regarding the habitual criminal offender, I cannot recall.” Id. at 13.

[11] During the testimony of Howard's appellate counsel, Attorney Duerring, Howard's post-conviction counsel asked if she remembered if she considered and decided against raising the issue of whether there was an adequate advisement of the “waiver of jury.” Id. at 16. Attorney Duerring answered in part, “I honestly don't remember that specific analysis” and “I don't remember what I thought at the time.” Id. at 16-17. When asked if it would be safe to say that she did not make a strategic decision not to raise that issue, she answered, “I just don't remember specifically. I don't remember there being a specific strategic reason for not raising it.” Id. at 17.

[12] On November 12, 2024, the court entered an eleven-page order denying Howard's petition. Specifically, the court found that Howard “did make a personal expression of waiver of the right to a jury determination of his status as a habitual offender.” Appellant's Appendix Volume II at 52.

[13] On December 16, 2024, Howard, by counsel, filed a notice of appeal. On June 19, 2025, Howard, by counsel, filed a Verified Motion that Court Accept Untimely Notice of Appeal, which stated that, “[a]s the State correctly points out in its Amended Appellee's Brief, the Notice of Appeal was due on December 12, 2024.” Motion at 1. Howard's counsel alleged that counsel “accepts full responsibility for the tardy submission of Howard's Notice of Appeal” and, “[i]ndeed, Howard wrote counsel on December 9, 2024, asking whether the Notice of Appeal had been filed. (Counsel received Howard's letter on December 16, 2024.).” Id. at 1-2. On June 27, 2025, this Court granted Howard's motion.

Discussion

[14] We first address the State's argument that Howard's notice of appeal was untimely and his right to appeal was forfeited. It asserts that only two possible exceptions could apply to continue this appeal and neither exception applies because he is not an eligible defendant under Ind. Post-Conviction Rule 2 and because there were no “extraordinarily compelling reasons” to continue the appeal. Appellee's Brief at 12 (quoting In re O.R., 16 N.E.3d 965, 971 (Ind. 2014)). Howard acknowledges that “Post-Conviction Rule 2 does not apply here.” Appellant's Reply Brief at 5. He asserts that the late filing of the notice of appeal occurred without his fault and judicial economy and finality favor considering the merits of his appeal.

[15] Ind. Appellate Rule 9 provides “[a] party initiates an appeal by filing a Notice of Appeal with the Clerk ․ within thirty (30) days after the entry of a Final Judgment is noted in the Chronological Case Summary” and, “[u]nless the Notice of Appeal is timely filed, the right to appeal shall be forfeited except as provided by” Ind. Post-Conviction Rule 2.¹ The post-conviction court's order was noted in the Chronological Case Summary on November 12, 2024. Thus, Howard had until December 12, 2024, to file a notice of appeal. Howard did not file a notice of appeal until December 16, 2024, and forfeited his right to appeal.

[16] The Indiana Supreme Court has held that, if a right to appeal has been forfeited, “the question is whether there are extraordinarily compelling reasons why this forfeited right should be restored.” In re Adoption of O.R., 16 N.E.3d at 971. In In re Adoption of O.R., the Court concluded that a father's otherwise forfeited appeal deserved a determination on the merits “in light of Appellate Rule 1, Father's attempt to perfect a timely appeal, and the constitutional dimensions of the parent-child relationship.”² Id. at 972.

[17] We do not lack jurisdiction over Howard's appeal, and we believe that the extraordinarily compelling reasons for non-forfeiture recognized by our Indiana Supreme Court is not determined solely from the perspective of the litigant. See Morales v. State, 19 N.E.3d 292, 296 (Ind. Ct. App. 2014), trans. denied. “This Court has an interest in judicial economy and bringing finality to proceedings by post-conviction petitioners.” Id.

[18] In light of the four-day delay, which included a weekend, the assertion by Howard's counsel in his June 19, 2025 motion that Howard wrote him on December 9, 2024, asking whether the notice of appeal had been filed, and his assertion that counsel did not receive the letter until December 16, 2024, we elect to address the merits of Howard's contentions. See id. (holding that extraordinarily compelling reasons for non-forfeiture existed, noting this Court's interest in judicial economy and bringing finality to proceedings by post-conviction petitioners, noting the slight delay in the filing of the notice of appeal, and electing to address the merits of the appellant's contention that he received ineffective assistance of counsel).

[19] We next turn to the merits of Howard's appeal. The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d at 679. We will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. “A post-conviction court's 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.” Id. The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Id.

[20] Howard argues that the post-conviction court “erroneously decided that [he] was adequately advised that he had the right to have the jury determine whether he was a habitual offender.” Appellant's Brief at 7. He acknowledges the discussion before the trial but asserts that his “[t]rial counsel's pretrial comment that he and Howard discussed allowing the judge to decide whether [he] was a habitual offender does not resolve whether [he] was aware of this right to a jury.” Id. at 8. He asserts that the post-conviction court erred in finding that trial counsel did not provide prejudicial deficient performance when his trial counsel's advice “said nothing about Howard waiving his right to jury determination.” Id. at 11. He also argues that his appellate counsel was ineffective for failing to raise the issue of whether he was properly advised of his right to a jury trial.

[21] To the extent that Howard raises freestanding claims, the Indiana Supreme Court has held that “[t]he post-conviction procedures do not provide a petitioner with a ‘super-appeal’ or opportunity to consider freestanding claims that the original trial court committed error.” Lambert v. State, 743 N.E.2d 719, 726 (Ind. 2001), reh'g denied, cert. denied, 534 U.S. 1136, 122 S. Ct. 1082 (2002). “Post-conviction proceedings are civil proceedings that provide defendants the opportunity to raise issues not known or available at the time of the original trial or direct appeal.” Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007) (citing Conner v. State, 711 N.E.2d 1238, 1244 (Ind. 1999), reh'g denied, cert. denied, 531 U.S. 829, 121 S. Ct. 81 (2000)), reh'g denied, cert. denied, 552 U.S. 1314, 128 S. Ct. 1871 (2008). “Thus, if an issue was known and available but not raised on direct appeal, the issue is procedurally foreclosed.” Id. (citing Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), reh'g denied, cert. denied, 537 U.S. 839, 123 S. Ct. 162 (2002)). “A petitioner for post-conviction relief cannot avoid the application of the waiver doctrine by arguing that it does not apply because the challenge raises fundamental error.” State v. Hernandez, 910 N.E.2d 213, 216 (Ind. 2009) (citing Canaan v. State, 683 N.E.2d 227, 235 n.6 (Ind. 1997) (stating that the availability of fundamental error as an exception to the waiver rule is limited in post-conviction proceedings), reh'g denied, cert. denied, 524 U.S. 906, 118 S. Ct. 2064 (1998)). “In 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.” Id. (quoting Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002)).

[22] Generally, to prevail on an ineffective assistance of counsel claim, a petitioner “must show (1) that his counsel's performance fell short of prevailing professional norms, and (2) that counsel's deficient performance prejudiced his defense.” Gibson v. State, 133 N.E.3d 673, 682 (Ind. 2019) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)), reh'g denied, cert. denied, 141 S. Ct. 553 (2020). A showing of deficient performance under the first of these two prongs requires proof that legal representation lacked an objective standard of reasonableness, effectively depriving the defendant of his Sixth Amendment right to counsel. Id. To demonstrate prejudice, the defendant must show a reasonable probability that, but for counsel's errors, the proceedings below would have resulted in a different outcome. Id.

[23] We apply the same standard of review to claims of ineffective assistance of appellate counsel as we apply to claims of ineffective assistance of trial counsel. Williams v. State, 724 N.E.2d 1070, 1078 (Ind. 2000), reh'g denied, cert. denied, 531 U.S. 1128, 121 S. Ct. 886 (2001). Ineffective assistance of appellate counsel claims fall into three categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well. Garrett v. State, 992 N.E.2d 710, 724 (Ind. 2013). To show that counsel was ineffective for failing to raise an issue on appeal thus resulting in waiver for collateral review, the defendant must overcome the strongest presumption of adequate assistance, and judicial scrutiny is highly deferential. Id. To evaluate the performance prong when counsel waived issues upon appeal, we apply the following test: (1) whether the unraised issues are significant and obvious from the face of the record and (2) whether the unraised issues are clearly stronger than the raised issues. Id. If the analysis under this test demonstrates deficient performance, then we evaluate the prejudice prong which requires an examination of whether the issues which appellate counsel failed to raise would have been clearly more likely to result in reversal or an order for a new trial. Id.

[24] Generally, “[a] knowing, intelligent and voluntary waiver of a jury trial may be accomplished by a written waiver or in open court.” Jones v. State, 544 N.E.2d 492, 495 (Ind. 1989). “Where the record shows it was appellant's personal wish to waive his right to a jury trial and that he was adequately informed about that waiver, the waiver is proper.” Id.; see also Horton v. State, 51 N.E.3d 1154, 1158 (Ind. 2016) (holding that waiver of the right to a jury trial “is valid only if communicated personally by the defendant”) (citing Kellems v. State, 849 N.E.2d 1110, 1114 (Ind. 2006)).

[25] The record reveals that, on the first day of trial, Howard's trial counsel stated that he “did speak with Mr. Howard regarding habitual phase of things.” Trial Transcript Volume II at 21. He also stated, “And Mr. Howard and I did discuss that at length yesterday and we believe that in light of the complexity of the situation, it may make more sense for your Honor to make that decision as it relates, if it becomes appropriate.” Id. at 22. Howard's counsel asked, “And then, Mr. Howard, that is your understanding and you're okay with doing a bench trial as it relates to that issue if it does come up.” Id. Howard answered, “Yeah.” Id. Upon questioning by the court, which referenced the habitual offender portion, Howard answered affirmatively when asked if he felt it was in his “best interest not to have that go to the jury for the determination” and if he would “prefer that the judge make that decision, or myself make that decision, as opposed to allowing that decision to be made by the jury.” Id. at 23. Under these circumstances, we cannot say Howard has demonstrated that his trial counsel or his appellate counsel were ineffective or that reversal is warranted.³

[26] For the foregoing reasons, we affirm the post-conviction court's order.

[27] Affirmed.

FOOTNOTES

1.   Ind. Post-Conviction Rule 2 “allows belated appeals in certain criminal cases.” Dawson v. State, 943 N.E.2d 1281, 1281 (Ind. 2011). As mentioned above, Howard acknowledges that “Post-Conviction Rule 2 does not apply here.” Appellant's Reply Brief at 5. See also Huguley v. State, 967 N.E.2d 572, 574-575 (Ind. Ct. App. 2012) (holding that Ind. Post-Conviction Rule 2 does not apply to appeals from post-conviction proceedings) (citing Taylor v. State, 939 N.E.2d 1132, 1135 (Ind. Ct. App. 2011) (citing Greer v. State, 685 N.E.2d 700, 703 (Ind. 1997))), trans. denied.

2.   Ind. Appellate Rule 1 provides: “These Rules shall govern the practice and procedure for appeals to the Supreme Court and the Court of Appeals. The Court may, upon the motion of a party or the Court's own motion, permit deviation from these Rules.”

3.   Howard contends that this case “presents substantially the same fact situation as the petitioner in” Bell v. State, 173 N.E.3d 709 (Ind. Ct. App. 2021). Appellant's Brief at 14. In Bell, the trial court failed to advise the defendant of a right to a trial on the habitual offender allegations, instead stating, “you have a right to a hearing like, not exactly a trial, but they would have to prove these [convictions] beyond doubt, they'd have to you'd have a chance to question any witnesses they had just like the trial we've had ․” 173 N.E.3d at 713. On appeal, this Court held that the colloquy between the defendant and the trial court was not a constitutionally sufficient waiver of the defendant's jury trial rights and that had appellate counsel raised the invalid jury-trial waiver on direct appeal, this Court would have been obliged to reverse. Id. at 718. Given the exchanges Howard had with his trial counsel and the court prior to the trial, we find Bell distinguishable.

Brown, Judge.

Judges Bailey and Weissmann concur. Bailey, J., and Weissmann, J., concur.