Tymon Brown, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Tymon Brown appeals from the post-conviction court's order denying his petition for post-conviction relief. He claims that he received the ineffective assistance of trial, appellate, and post-conviction counsel. Concluding that Brown received effective assistance of counsel at all stages, we affirm the judgment of the post-conviction court.

Facts and Procedural History

[2] The facts of the underlying criminal case were set out in Brown's direct appeal. Brown v. State, No. 49A02-1203-CR-233 (Ind. Ct. App. December, 12, 2012) (mem.). In January 2011, Brown's girlfriend and Brown's friend made plans to commit a robbery. Id. at *1. On January 26, Brown and his girlfriend picked up his girlfriend's cousin and Brown's friend. Id. The group openly discussed the robbery plan, which involved Brown's girlfriend and her cousin luring a liquor store clerk, who was a friend of theirs, outside the store so Brown and his friend could approach and commit the robbery. Id.

[3] Brown's girlfriend and her cousin dropped off Brown and his friend down the street from the liquor store before proceeding to the store. Id. Once there, they went inside the store, told the clerk they had car trouble, and asked him for help. Id. The clerk exited the store to help them and was subsequently struck on the back of the head by Brown and his friend. Id. The clerk wrestled free from Brown and his friend. Id. He then produced a gun and began shooting. Id. Brown's friend fired back with a gun owned by Brown, but which was previously borrowed or taken from Brown. Id. Brown and his friend fled. Id. Brown's girlfriend was seated in the car during the gunfire and was shot in the back of her head. Id. She died from those injuries. Id.

[4] The State charged Brown with felony murder and attempted robbery. Id. A jury found him guilty of both charges. Id. The trial court entered judgment of conviction only on the felony murder charge and sentenced Brown to a term of forty-five years. Id.

[5] Brown appealed his convictions, contending the trial court abused its discretion by admitting in evidence two letters purportedly written by him, and claiming the evidence was insufficient to support his convictions. A panel of this Court held that the trial court did not abuse its discretion by admitting the letters in evidence and that there was sufficient evidence to support his felony murder conviction. Id. at *4.

[6] Next, Brown filed a petition for post-conviction relief and counsel later amended it. In that amended petition, Brown alleged that his trial counsel was ineffective, among other conduct, for failing to object, move for a mistrial, or request an interrogation of the jurors after the trial court notified the parties of a juror question. Appellee's PCR App. Vol. 2, pp. 13-23. The court notified the parties that it had received a question from a juror and ignored the question. Direct Appeal Tr. Vol. I, p. 56. The juror question was “Would it be okay for someone to leave something on the prosecutor's table which seems inappropriate?” Id. At trial, when the court asked the parties if there was “[a]nything else for the record[,]” the parties replied there was not. Id. at 57. At the evidentiary hearing, Brown's trial counsel testified that based on his understanding and recollection of the question at trial, that juror was most likely “firmly in our camp and to move to have that juror removed . . would not have been in Mr. Brown's best interest[.]” PCR Tr. Vol. II, p. 14.

[7] And Brown also argued that his appellate counsel was ineffective for not raising that issue in his direct appeal. The post-conviction court denied Brown's petition. Brown says in his opening brief that his post-conviction counsel's performance was deficient because he “failed to apprise himself of the case law and procedural rules relevant to the case.” Pet. Br. p. 11. Brown now appeals.

Discussion and Decision

A. Standard of Review

[8] “Post-conviction procedures do not afford the petitioner with a super-appeal.” Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). “Instead, they create a narrow remedy for subsequent collateral challenges to convictions, challenges which must be based on grounds enumerated in the post-conviction rules.” Id. A petitioner who has been denied post-conviction relief appeals from a negative judgment and as a result, faces a rigorous standard of review on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001); Collier v. State, 715 N.E.2d 940, 942 (Ind. Ct. App. 1999), trans. denied.

[9] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Therefore, to prevail, a petitioner must establish his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition, a petitioner must convince this court that the evidence, taken as a whole, “leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court.” Stevens, 770 N.E.2d at 745. “In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did.” Id. “It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that its decision will be disturbed as contrary to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied. “The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

B. Assistance of Trial Counsel 1

[10] On appeal, Brown contends that the post-conviction court erred by concluding that he received the effective assistance of trial counsel. Brown argues that his counsel should have moved for a mistrial or should have requested to question the jury after discovering the juror's question about something left on the prosecutor's table, which the juror thought seemed inappropriate.

[11] “The right to effective counsel is rooted in the Sixth Amendment of the United States Constitution.” Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “ ‘The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results.’ ” Id. (quoting Strickland v. Washington, 466 U.S. 668, 685 (1984)). “ ‘The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” Id. (quoting Strickland, 466 U.S. at 686).

[12] A successful claim for ineffective assistance of counsel must satisfy two components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). For the first component, the petitioner must establish that counsel's performance was deficient by demonstrating that 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.” Id. (internal quotation omitted). “We recognize that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client,” and therefore, under this component, we will assume that counsel performed adequately and defer to counsel's strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). “Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.” Id.

[13] For the second component, the petitioner must show that the deficient performance resulted in prejudice. Reed, 866 N.E.2d at 769. A petitioner may show prejudice by demonstrating that there is “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. (italics added, internal quotation omitted).

[14] A petitioner's failure to satisfy either component will cause the ineffective assistance of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently, “[a]lthough the two parts of the Strickland test are separate inquires, a claim may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006).

[15] The evidentiary hearing established that to prepare for Brown's trial, his trial counsel met with the prosecutors, received each exhibit, prepared and organized a trial notebook, organized highlights and notes from witness statements, discussed the case and evidence with Brown, and communicated with Brown's mother about the case. PCR Tr. Vol. II, pp. 23, 25-28, 38. Counsel lodged numerous objections at trial, many of which were successful. And he cross-examined witnesses. Furthermore, counsel conferred with Brown about whether he should testify. Counsel also proposed final instructions and objected to some of the instructions proposed by the trial court. And he objected to the trial court's proposed response to a jury question during deliberations.

[16] Nevertheless, Brown argues that his counsel should have asked for a mistrial or for the opportunity to question the juror and/or the jury about the item left on the prosecutor's table. At the evidentiary hearing, Brown's trial counsel testified that, based on his understanding, he believed the juror's question implied that he or she was most likely pro-defense. He stated that he did not believe that asking permission to question the juror or to move to have that juror removed would have been in Brown's best interest.

[17] Brown contends that the post-conviction court inappropriately advocated for trial counsel by suggesting that trial counsel's decision was strategic. And Brown's counsel did not explicitly use the word strategic to describe his thought process. Nonetheless, counsel's testimony leads to the clear inference that his decision was strategic. “There is a strong presumption that trial counsel provided effective representation, and a petitioner must put forth strong evidence to rebut that presumption.” Warren v. State, 146 N.E.3d 972, 977 (Ind. Ct. App. 2020), trans. denied. “Isolated poor strategy, inexperience, or bad tactics does not necessarily constitute ineffective assistance.” McCullough v. State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012), trans. denied.

[18] On that component alone, Brown's claims fail. But we also note that Brown has not demonstrated prejudice from counsel's strategy. There was strong evidence connecting Brown with the crimes. Brown's girlfriend's cousin testified that she and Brown's girlfriend lured the clerk out of the liquor store and Brown and his friend hit the clerk over the head. She further testified that Brown was standing next to his friend when the friend fired a shot at the clerk, ultimately striking and killing Brown's girlfriend. And after his arrest, Brown attempted to coerce two friends into perjuring themselves on his behalf. Questioning the juror, who appeared to be pro-defense, would not have led to a different outcome. The post-conviction court correctly determined that Brown failed to rebut the presumption of effective assistance of counsel under either component.

C. Assistance of Appellate Counsel

[19] “The standard of review for a claim of ineffective assistance of appellate counsel is the same as for trial counsel in that the defendant must show appellate counsel was deficient in her performance and that the deficiency resulted in prejudice.” Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). “Ineffective assistance of appellate counsel claims generally fall into three basic categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well.” Id.

[20] Brown contends that his appellate counsel was ineffective for failing to challenge the trial court's handling of the juror question about the item on the prosecutor's table. Brown's appellate counsel did not testify at the evidentiary hearing. “When counsel is not called as a witness to testify in support of a petitioner's arguments, the post-conviction court may infer that counsel would not have corroborated the petitioner's allegations.” Culvahouse v. State, 819 N.E.2d 857, 863 (Ind. Ct. App. 2004), trans. denied.

[21] Brown's argument here falls in the category of a waived issue. “We employ a two-part test to evaluate ‘waiver of issue’ claims: (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.” Johnson v. State, 103 N.E.3d 704, 707 (Ind. Ct. App. 2018) (quoting Fisher v. State, 810 N.E.2d 674, 676-77 (Ind. 2004)), trans. denied.

[22] We have already determined that trial counsel made a reasonable strategic decision not to have a seemingly pro-defense juror questioned or removed. In other words, the claim was a weak claim at best. Our review of the claim would have been for fundamental error. “ ‘Fundamental error is defined as an error so prejudicial to the rights of a defendant that a fair trial is rendered impossible.’ ” Benefield v. State, 945 N.E.2d 791, 801 (Ind. Ct. App. 2011) (quoting Perez v. State, 872 N.E.2d 208, 210 (Ind. Ct. App. 2007), trans. denied). Because the question did not implicate juror tampering, juror misconduct, or any other improper influence where trial court intervention was necessary, there is no fundamental error in the trial court's handling of the issue. And Brown has not met his burden of overcoming the presumption of effective performance. We conclude the post-conviction court properly found that Brown's appellate counsel was effective.

D. Assistance of Post-Conviction Counsel

[23] Brown contends that he received ineffective assistance of post-conviction counsel because counsel raised a free-standing issue that was not available for review. Pet. Br. p. 11.

[24] We first begin by noting that “neither the Sixth Amendment of the U.S. Constitution nor article 1, section 13 of the Indiana Constitution guarantee the right to counsel in post-conviction proceedings[.]” Graves v. State, 823 N.E.2d 1193, 1196 (Ind. 2005). In assessing claims of ineffective assistance of post-conviction counsel, our Supreme Court has “explicitly declined to apply the well-known standard for trial and appellate counsel of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.E.2d 674 (1984).” Id. Instead, the Supreme Court “adopted a standard based on principles inherent in protecting due course of law—one that inquires ‘if counsel in fact appeared and represented the petitioner in a procedurally fair setting which resulted in a judgment of the court.’ ” Id. (quoting Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989)). Thus, “only in the ‘extraordinary circumstances’ that ‘his lawyer abandoned the case and prevented the client from being heard, either through counsel or pro se’ ” will a petitioner be entitled to relief. Graves, 823 N.E.2d at 1196 (quoting Harris v. United States, 367 F.3d 74, 77 (2nd Cir. 2004)). This approach was adopted in Baum. Graves, 823 N.E.2d at 1197.

[25] Here, Brown claims his challenges to post-conviction counsel's performance fall under the Strickland standard. Pet. Br. pp. 11-12. However, this is the incorrect standard. See, Graves, 823 N.E.2d at 1196-97. And his argument appears to be that his post-conviction counsel, by raising a free-standing claim, was ineffective for raising too many claims. Our review under the correct standard reveals that Brown's counsel filed an amended petition for post-conviction relief, alleging three claims of ineffective assistance of trial and appellate counsel. He appeared at the evidentiary hearing, presented witnesses, including Brown and his trial counsel, and offered exhibits in support of the claims. Counsel filed proposed findings of fact and conclusions of law supporting his claims. Thus, the record reflects that Brown's post-conviction counsel vigorously represented Brown's claims. And counsel did not come close to abandoning the case or preventing Brown from being heard. Brown has not demonstrated that he is entitled to relief.

Conclusion

[26] Based on the foregoing, we conclude that Brown received effective assistance of trial, appellate, and post-conviction counsel. The post-conviction court's judgment denying him relief is affirmed.

[27] Affirmed.

Baker, Senior Judge.

Altice, C.J., and DeBoer, J., concur.