Courtney L. Parker, Appellant/Petitioner v. State of Indiana, Appellee/Respondent (2025)

MEMORANDUM DECISION

Case Summary

[1] In 2019, a jury convicted Courtney Parker of Level 6 felony residential entry, and the trial court sentenced him to two years of incarceration, a sentence that was affirmed on direct appeal.¹ In 2023, Parked petitioned for post-conviction relief (“PCR”), claiming that he had received ineffective assistance of appellate counsel. The post-conviction court denied Parker's PCR petition. Parker contends that the post-conviction court clearly erred in concluding that he had not received ineffective assistance of appellate counsel. We affirm.

Facts and Procedural History

[2] The circumstances of Parker's offense were described by us in our disposition of his direct appeal:

Patricia Torres and Parker have a child together. Patricia lived with Parker and Parker's girlfriend until April of 2017. She then moved in with her sister, Melis[ ]a[2] Torres, and Melis[ ]a's boyfriend, Alex Velasquez, in a house in Hammond, Indiana. In the early morning hours of April 8, 2017, Melis[ ]a and Velasquez were woken up by a loud pounding on the door. Patricia was not at the house at the time. Melis[ ]a went downstairs, realized the knocking was coming from the back door, which separated the living areas from a mud room. The mud room was separated from outside the house by a locked storm door. Melis[ ]a asked, “who is it [?], who is it [?]”

Parker identified himself and asked about Patricia's location. Melis[ ]a also looked out a window and recognized Parker. Parker continued to knock on the door and demanded to talk with Patricia. Melis[ ]a informed Parker that Patricia was not at the house and asked him to leave. At some point, Parker went around to the front door. Melis[ ]a told Parker that she would shoot him with a shotgun if he did not leave, and Melis[ ]a called the police. Parker left before the police arrived. Melis[ ]a examined the house after Parker left and noticed the storm door was damaged. She testified the storm door “was pulled or pried open where it was yanked too hard where the lock no longer reaches to latch it, so it closes but it doesn't no [sic] longer lock.”

Throughout the day on April 8, 2017, Parker tried to contact Patricia by calling her between ten and twenty times, sending her text messages, and contacting her via Facebook. Between 10:00 pm and 11:00 pm, Patricia was in her room, lying on her bed, watching a movie on her laptop. Patricia's bedroom was located toward the front of the house with windows facing the front yard and street. Patricia observed Parker arrive at the house and knock on the front door. She then saw Parker look at her through her bedroom window. Patricia notified Melis[ ]a that Parker was at the door, and Melis[ ]a yelled that she was calling the police. Parker then threw a rock from the front yard through Patricia's bedroom window and ran away. Patricia testified that the rock landed on her foot and broken glass cut her forehead. Police apprehended Parker approximately ten minutes later outside a bar near the house.

Parker v. State, 2019 WL 5608140, slip op. at *2–3 (Ind. Ct. App. Oct. 31, 2019) (record citations omitted; footnote omitted; brackets related to the apparent misspelling of Melisa Torres's name supplied), trans. denied. On April 9, 2017, the State charged Parker with Level 6 felony residential entry, Level 6 felony attempted residential entry, Level 6 felony criminal recklessness, and Class B misdemeanor criminal mischief.³

[3] During an omnibus hearing on April 10, 2018, the trial court advised Parker about the consequences of proceeding pro se.⁴ Parker told the trial court that he had represented himself three times in the past; had completed several paralegal classes and business law classes at Ivy Tech; and that he could follow the trial rules and procedural guidelines and maintain court decorum. The trial court allowed Parker to proceed pro se.

[4] Parker had standby counsel during his jury trial, which began on January 28, 2019. Hammond Police Officer Jason Chorba testified that at approximately 11:45 p.m. on April 8, 2017, he had been dispatched to investigate a report of a possible residential entry. Officer Chorba indicated that when he had encountered Parker outside of a bar, Parker had begun to run and had been discovered hiding underneath a pickup truck behind the bar. Parker did not object to the jury instructions, which included an instruction that stated, “The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, if proved, is not evidence of guilt. It is, however, evidence of consciousness of guilt.” DA Appellant's App. Vol. III p. 104. The jury found Parker guilty of Level 6 felony residential entry and not guilty of all other charges.

[5] On March 15, 2019, the trial court held a sentencing hearing. At the start of the hearing, the trial court stated that it was going to recuse after the sentencing hearing because Parker had filed a complaint against the court. Parker asked if he could speak about the recusal, which the trial court allowed. Parker said,

Your Honor, I believe her Honor to be a fair Judge. You have been—you have shown integrity and you have stood on law. So with that said, when I filed a complaint, it was not against her Honor. It was due to the fact of the situation that was taking place in Lake County Jail with them preventing me from obtaining my legal mail.

[․.]

Your Honor, I'd really would like [sic] to get this behind me. I'm quite sure the State would like to get me off the docket. I'm quite sure the alleged victims would like to move on with their lives. I would ask that I be able to stay in her Honor's courtroom.

DA Tr. Vol. V pp. 6–7. The trial court did not recuse prior to sentencing and sentenced him to two years of incarceration. Parker, represented by attorney P. Jeffrey Schlesinger, appealed his sentence. Parker, 2019 WL 5608140, slip op. at *1. Parker unsuccessfully argued that the trial court had abused its discretion in sentencing him and that his sentence was inappropriate in light of the nature of his offense and his character. Id.

[6] On August 18, 2023, Parker petitioned for PCR and amended his petition on July 30, 2024. In his amended PCR petition, Parker argued that Schlesinger had been ineffective when he had failed to argue that the trial court had erred in failing to (1) recuse prior to sentencing, (2) adequately advise him of the perils of self-representation, and (3) properly instruct the jury on flight.

[7] On October 4, 2024, the post-conviction court held an evidentiary hearing on Parker's petition, at which Schlesinger testified. Schlesinger had worked in the appellate division of the Lake County Public Defender's Office for twenty-four years. Regarding the potential jury-instruction claim, Schlesinger testified that he “always review[ed] the instructions. It's a good source of appellate review, potential appellate review.” Tr. Vol. II p. 12. Schlesinger did not remember the flight instruction or having considered raising it on appeal. Regarding the pro se advisement, Schlesinger testified as follows: “I think I considered it and decided not to. I know I considered potential problems with self-representation. Whether the advisement was sufficient, or not, I'm not sure if I considered that. It appeared -- I guess, it appeared to me on its face to be sufficient.” Tr. Vol. II p. 14.

[8] On February 3, 2025, the post-conviction court issued its findings of fact and conclusions thereon. The post-conviction court determined that the potential claim regarding the trial court's failure to recuse at sentencing would not have been successful on appeal. The post-conviction court reasoned that Parker had “specifically stated [at sentencing] that he did not want the judge to recuse herself, and that he knew her to be a fair judge.” Appellant's App. Vol. II p. 111. The post-conviction court concluded that Schlesinger's decision not to raise an issue about the pro se advisement had been “strategic[ ]” and that “had he noticed the advisement lacking in any way, he would have raised that issue.” Appellant's App. Vol. II p. 111. As for the flight instruction, the post-conviction court determined that, while it had been error to give the flight instruction, the error had been harmless. Appellant's App. Vol. II p. 112. The post-conviction court concluded that Schlesinger's representation had neither fallen below professional norms nor prejudiced Parker.

Discussion and Decision

[9] A petitioner who has been denied post-conviction relief faces a rigorous standard of review. Benefiel v. State, 716 N.E.2d 906, 912 (Ind. 1999), reh'g denied, cert. denied, 531 U.S. 830, 121 S. Ct. 83, 148 L. Ed. 2d 45 (2000). As such, the petitioner must convince the court on review that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. Prowell v. State, 741 N.E.2d 704, 708 (Ind. 2001). Stated differently, “[t]his Court will disturb a post-conviction court's decision as being contrary to law only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion.” Miller v. State, 702 N.E.2d 1053, 1058 (Ind. 1998). Further, the reviewing court accepts the post-conviction court's findings of fact unless clearly erroneous. Ben–Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000).

Dewitt v. State, 755 N.E.2d 167, 169–70 (Ind. 2001).

[10] There is a strong presumption that Parker's counsel rendered adequate assistance and made all significant decisions in the exercise of his reasonable professional judgment; Parker could only have rebutted this presumption with “strong and convincing evidence” to the contrary. Carr v. State, 728 N.E.2d 125, 132 (Ind. 2000) (citation and quotation marks omitted). To rebut this strong presumption, Parker must show that (1) counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001) (citing Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984)). A reasonable probability is one “sufficient to undermine confidence in the outcome.” Id.

[11] Ineffectiveness is “very rarely” found in cases regarding the failure to raise an issue on appeal, because the decision of what issues to raise is one of “the most important strategic decisions to be made by appellate counsel,” and “reviewing courts should be particularly deferential to counsel's strategic decision to exclude certain issues in favor of others, unless such a decision was unquestionably unreasonable.” Bieghler v. State, 690 N.E.2d 188, 193–94 (Ind. 1997) (citation and quotation marks omitted). A reviewing court looks first to whether the unraised issues were “significant and obvious” from the face of the record and, if so, compares the unraised issues to those raised; deficient performance is only found when ignored issues are clearly stronger than those presented. Id. at 194 (citation and quotation marks omitted). Deficient performance should not be found when counsel's choice of some issues over others was reasonable in light of the facts of the case and the precedent available to counsel when that choice was made. Id.

[12] As mentioned, Parker challenged only his sentence on direct appeal and now contends that Schlesinger was ineffective for failing to argue that the trial court had abused its discretion in (1) failing to recuse before his sentencing hearing, (2) advising him of the perils of self-representation, and (3) instructing the jury on flight.

A. Failing to Recuse

[13] Parker contends that Schlesinger was ineffective for failing to argue that the trial court had erred in not recusing before his sentencing. As the State correctly points out, however, this claim was waived for appellate review because Parker did not object to the trial court remaining on his case. A party must object to preserve a recusal issue for appeal. Carr v. State, 799 N.E.2d 1096, 1098 (Ind. Ct. App. 2003). “A party may not lie in wait and only raise the recusal issue after receiving an adverse decision.” Id. (citing Tyson v. State, 622 N.E.2d 457, 460 (Ind. 1993)).

[14] Parker explained on the record that his complaint was not even against the trial court, it was against the jail, and specifically asked the trial court to stay on his case. Any claim that the trial court should have recused before sentencing is without basis in the record, and, even if there were some reason to believe that the trial court should have recused, any error in that regard was invited. See, e.g., Miller v. State, 188 N.E.3d 871, 874–75 (Ind. 2022) (“The invited-error doctrine generally precludes a party from obtaining appellate relief for his own errors, even if those errors were fundamental.”). Schlesinger was not ineffective for failing to raise a claim that had been waived for appellate review; could not support a claim for fundamental error because it had been invited; and, in any event, was also without basis.

B. Advising Parker of the Perils of Self-Representation

[15] Parker also contends that Schlesinger was ineffective for failing to argue that the trial court had inadequately advised him of the perils of self-representation. The right to counsel can only be waived with a knowing, intelligent, and voluntary waiver. Miller v. State, 789 N.E.2d 32, 37 (Ind. Ct. App. 2003) (citation omitted). When a defendant asserts his right to self-representation, the trial court should tell the defendant of the “dangers and disadvantages of self-representation.” Id. (citing Faretta v. California, 422 U.S. 806, 835 (1975)). There are four factors in determining whether a waiver is knowing and intelligent: the extent of the trial court's inquiry into the defendant's choice, evidence that shows the defendant understood the dangers and disadvantages of self-representation, the defendant's background and experience, and the context of the defendant's choice to represent himself. Id. (citing Poynter v. State, 749 N.E.2d 1122, 1127–28 (Ind. 2001)). There are no specific “talking points” that the trial court must follow; instead, the trial court must come to a “considered determination” that the defendant's waiver is knowing, intelligent, and voluntary. Jackson v. State, 992 N.E.2d 926, 932 (Ind. Ct. App. 2013) (citation omitted), trans. denied.

[16] When Parker indicated a desire to represent himself, the trial court advised him as follows:

You may have some defenses available to you, and you may have some factors that might mitigate your sentence if you were convicted and sentenced, or there may be factors that could aggravate your sentence. As a result -- well, a trained attorney has developed skills and expertise to prepare and present a defense for your charges.

These skills include investigating the case, analyzing the strengths and weaknesses and giving you expert advice on negotiating or not with the prosecutor; locating, examining, and cross-examining witnesses; gathering and admitting evidence; preparing and filing motions; presenting effective opening and closing statements; recognizing objectionable and unfavorable evidence and promptly objecting; presenting favorable evidence and information and attacking unfavorable information.

In addition, if you're convicted, you may not file a[n] appeal based on ineffective assistance of counsel. If you proceed without an attorney, you will not receive any special treatment with your defense.

I cannot give you any advice about what you should do, nor can the prosecutor assist you in any way. You will have to follow all the same legal rules and procedures as an attorney.

DA Omnibus Tr. pp. 9–10. Parker stated on the record that he had represented himself three times in the past and completed “several” paralegal classes and business-law classes at Ivy Tech. DA Omnibus Tr. p. 13. Parker also told the trial court that he could follow the trial rules, the procedural guidelines, and maintain courtroom decorum. When the trial court asked Parker why he desired to proceed pro se, he responded that he “had already [done] all the groundwork and [ ] knew the facts” and thought that he was as prepared as appointed counsel would be. DA Omnibus Tr. p. 12.

[17] Under the circumstances, we agree with the post-conviction court's apparent conclusion that Schlesinger had not been ineffective for failing to argue that the pro se advisements had been insufficient. The trial court's advisement was thorough; it advised Parker that, in general, a criminal defense attorney has specialized skill and training for conducting a criminal trial and identified some circumstances in which that lack of training might hurt him. The trial court also informed Parker that he would get no special treatment or advice and would have to follow the rules of court. Parker expressed no confusion on the record about any of this and indicated that he would be able to follow the rules of court and maintain proper decorum. The trial court also asked Parker why he wished to represent himself (to which he replied that he was as prepared as appointed counsel would be), and the record establishes that Parker had defended himself on three previous occasions and had had some legal training.

[18] Parker argues only that the trial court's recitation of the skills defense attorneys possess and the things they might do in a criminal case did not adequately advise Parker of the perils of self-representation. We are unpersuaded. In this context, the obvious implication of such a recitation is that these are benefits a defendant would quite possibly forfeit if he or she decided to proceed pro se. Moreover, Parker's argument ignores that he had already represented himself in multiple legal proceedings and had had some legal education as well. Because Parker has failed to establish that his advisements regarding self-representation were inadequate, he has failed to establish that Schlesinger was deficient for failing to raise the claim on direct appeal.

C. Jury Instruction on Flight

[19] Finally, Parker contends that his appellate counsel was ineffective for failing to challenge the trial court's flight instruction on direct appeal as fundamental error.⁵ “An error is fundamental if it made a fair trial impossible or if it clearly and blatantly violated basic principles of due process resulting in undeniable and substantial potential for harm.” Batchelor v. State, 119 N.E.3d 550, 559 (Ind. 2019) (citation and quotation marks omitted). Assuming, arguendo, that the giving of the flight was error at all, any such error can only be considered harmless.

[20] First and foremost, Parker's alleged flight had had nothing to do with his conviction for residential entry. The jury found Parker guilty of residential entry for acts that had occurred in the early morning of April 8, and the only evidence in the record that could be characterized as flight was Officer Chorba's testimony regarding the evening of April 8, several hours later. As it happened, the jury found Parker not guilty of any crimes alleged to have occurred on the evening of April 8.⁶ An error is harmless if its probable impact, in light of all the evidence, “is sufficiently minor so as not to affect the substantial rights of the parties.” Hayko v. State, 211 N.E.3d 483, 491 (Ind. 2023) (citation omitted). Schlesinger was not deficient for failing to raise a claim that would have been found harmless. See, e.g., Seeley v. State, 782 N.E.2d 1052 1061 (Ind. Ct. App. 2003) (concluding that, in order to demonstrate prejudice, a defendant must show that, but for counsel's error, the outcome of the proceeding would have been different), trans. denied. Parker has failed to establish that Schlesinger provided him with ineffective assistance of appellate counsel.

[21] We affirm the judgment of the post-conviction court.

FOOTNOTES

1.   Citations to the record on direct appeal will be preceded by “DA.”

2.   The record indicates that Torres's first name is spelled “Melisa.” DA Tr. Vol. II p. 119.

3.   The State also charged Parker with Level 6 felony auto theft, a charge dropped before trial.

4.   It would seem that this was Parker's second advisement in this case, as he had received one at an earlier hearing, the recording of which was corrupted, preventing transcription.

5.   Parker did not object to this instruction at trial, so, as with his recusal claim, this claim was waived for appellate review and could only be reviewed for fundamental error. See Batchelor v. State, 119 N.E.3d 550, 559 (Ind. 2019) (“Having concluded that Batchelor did not invite the alleged instructional error, we now review his claim for fundamental error, as he failed to object to the tendered instruction at trial.”).

6.   At trial, the State specifically identified evidence related to the morning of April 8 as supporting the residential entry charge and identified evidence related to the late evening of April 8 as supporting the attempted residential entry, criminal recklessness, and criminal mischief charges.

Bradford, Judge.

Judges May and Mathias concur. May, J., and Mathias, J., concur.