Elisha Smith, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2026)

MEMORANDUM DECISION

Case Summary

[1] Elisha Smith appeals the denial of his petition for post-conviction relief. We affirm.

Facts and Procedural History

[2] In July 2015, the State charged Smith with six sex crimes for events that allegedly occurred between 2010 and 2014: Class A felony child molesting, Class C felony child molesting, Class D felony child solicitation, and three counts of Class D felony performance before a minor that is harmful to minors. See Cause No. 49G01-1507-FA-25666. Smith was immediately taken into custody and remained in jail throughout the trial-court proceedings. A bench trial was scheduled for November 9, 2016. That day, the State made a plea offer to Smith that would release him from jail. Specifically, Smith would plead guilty to Class C felony child molesting, the State would dismiss the other charges, and Smith would be sentenced to eight years, with the executed portion consisting of time already served in the Marion County Jail plus two years on community corrections and the remainder of the eight years suspended to sex-offender probation. Smith accepted the State's offer, and the trial court accepted his plea and scheduled a sentencing hearing.

[3] Before sentencing, Smith moved to withdraw his guilty plea, claiming he was innocent and that his attorneys had pressured him to plead. The trial court denied that motion, held the sentencing hearing, and sentenced Smith in accordance with the plea agreement. Smith appealed the denial of his motion to withdraw his guilty plea, but we affirmed. Smith v. State, No. 49A04-1707-CR-1630, 2018 WL 1004564 (Ind. Ct. App. Feb. 22, 2018) (mem.).

[4] In 2020, Smith, by counsel, petitioned for post-conviction relief. He made several claims, but the only one at issue in this appeal is that he received ineffective assistance of counsel as follows: (1) on the day of his guilty plea, he was represented and advised by three attorneys from the Marion County Public Defender Agency—Amy Blair and Jennifer Harrison, who had been his primary attorneys and would have represented him at trial, and a more senior attorney, Benjamin Jaffe; (2) before he accepted the State's offer and pled guilty, Jaffe advised him that he would be allowed to have visitation with his minor daughter upon his release from jail; (3) after he pled guilty, he learned that the conditions of sex-offender probation barred him from having contact with any minor (including his daughter) unless approved by the probation department; and (4) but for Jaffe's advisement, he would have rejected the State's offer and gone to trial.

[5] The evidentiary hearing was held over two days in September 2021 and June 2023. Smith testified as just described. He also called Jaffe as a witness, but not Blair and Harrison. Smith's attorney asked Jaffe if he had “any specific memory about sex offender advisements or conditions of sex offender probation,” and Jaffe said no. Supp. Tr. p. 21. But in his questioning of Jaffe, Smith's attorney never brought up Smith's ability to see his daughter or Jaffe's alleged statement on the topic.

[6] In October 2024, the post-conviction court denied Smith's petition. The court didn't believe Smith's testimony that Jaffe told him he could have contact with his daughter if he accepted the State's offer. And the court noted that Smith's failure to call Blair and Harrison as witnesses allowed an inference that their testimony wouldn't have corroborated his claim. Likewise, the court didn't believe Smith's testimony that “he would have insisted on going to trial if he had known or more fully understood the sex offender condition that he would be unable to visit with his minor daughter during the three-year term of probation.” Appellant's App. Vol. 2 p. 224.

[7] Smith later sought permission to bring this belated appeal, which our motions panel granted.¹

Discussion and Decision

[8] Smith contends the post-conviction court erred by denying his petition. A defendant who petitions for post-conviction relief bears the burden of establishing grounds for relief by a preponderance of the evidence. Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014). A petitioner appealing from the denial of post-conviction relief must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. at 269. “Although we do not defer to the post-conviction court's legal conclusions, 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. (quotation omitted). “For factual matters, we examine only the probative evidence and reasonable inferences that support the postconviction court's determination and do not reweigh the evidence or judge the credibility of the witnesses.” Conley v. State, 183 N.E.3d 276, 282 (Ind. 2022).

[9] Smith claims that Jaffe incorrectly told him that he would be able to have contact with his minor daughter if he pled guilty and that this amounted to ineffective assistance of counsel.² When evaluating a defendant's ineffective-assistance claim, we apply the well-established, two-part test from Strickland v. Washington, 466 U.S. 668 (1984). Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). The defendant must prove (1) counsel rendered deficient performance, meaning counsel's representation fell below an objective standard of reasonableness as gauged by prevailing professional norms, and (2) counsel's deficient performance prejudiced the defendant, i.e., but for counsel's errors, there is a reasonable probability the result of the proceeding would have been different. Id. at 1240-41. A defendant claiming bad advice during the guilty-plea stage establishes prejudice by showing “a reasonable probability that he would have rejected the guilty plea and insisted on going to trial instead.” Bobadilla v. State, 117 N.E.3d 1272, 1284 (Ind. 2019).

[10] The post-conviction court found that Smith didn't satisfy the deficient-performance prong or the prejudice prong. We need not address the prejudice prong because Smith hasn't shown clear error as to the deficient-performance prong. To satisfy that prong, Smith had to prove by a preponderance of the evidence his claim that Jaffe made the erroneous statement about Smith having contact with his daughter. The post-conviction court properly concluded that Smith failed to carry that burden. Smith called Jaffe to testify during the evidentiary hearing but didn't ask him if he made the alleged statement. And Smith didn't call his primary attorneys, Blair and Harrison, as witnesses, so they couldn't testify about whether Jaffe made the alleged statement. As the post-conviction court noted, this omission supported an inference that Blair and Harrison wouldn't have corroborated Smith's claim. See Oberst v. State, 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010) (“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.”), trans. denied. The only evidence Smith presented that Jaffe made the alleged statement was his own testimony. The post-conviction court didn't believe his testimony, and that is a credibility determination we cannot disturb.

[11] Smith has not shown that the post-conviction court erred by denying his petition.

[12] Affirmed.

FOOTNOTES

1.   The State didn't oppose Smith's motion for leave to bring a belated appeal, but it now asks us to reconsider our motions panel's decision and dismiss the appeal. We decline to do so.

2.   The State argues that Smith's ineffective-assistance claim is barred by the doctrine of res judicata because his allegation that Jaffe misadvised him about contact with his daughter was also one of the bases for his earlier, unsuccessful motion to withdraw his guilty plea. See Appellant's App. Vol. 2 p. 54. Because Smith's ineffective-assistance claim fails on the merits, we need not address the thorny issue of res judicata.

Vaidik, Judge.

Bailey, J., and Scheele, J., concur.