Cleve Stone, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Though hobbled by a severe leg injury, Cleve Stone participated in a robbery-burglary for which he was convicted. On direct appeal, this court affirmed Stone's convictions. Stone later filed a petition for post-conviction relief (“PCR”), alleging he received ineffective assistance of trial counsel. The PCR court denied Stone's petition, and Stone now appeals, raising one issue for our review: Whether the PCR court clearly erred by denying his PCR petition.

[2] We affirm.

Facts and Procedural History

[3] In 2010, Stone was shot in the lower leg with an AK-47, which resulted in “significant bone and soft tissue injuries.” Appellant's App. Vol. II at 84. Stone required surgery, and his leg was placed in a frame consisting of several “pins [that] go through to the bone in his leg,” Tr. Vol. II at 28.

[4] In 2013, Stone was found guilty of burglary resulting in bodily injury as a Class A felony, robbery as a Class C felony, and several other offenses for which he was sentenced to 70 years in prison. We have previously set out the facts underlying Stone's convictions:

On September 30, 2011, Efren Merino Lopez texted Crystal Holloway and asked her to come to his mobile home and have sex with him in exchange for money. Shortly thereafter, Crystal arrived at Efren's mobile home with her friend, Bethany Arthur.

Stone and Josh Doan rode with the girls and remained in the car. According to Bethany, the group planned to rob Efren. Crystal and Bethany went into Efren's mobile home and discussed the price for having sex. Crystal then went to the bathroom and called Stone on her cell phone.

Stone and Doan ran from the car to the mobile home and burst inside demanding money. Doan was armed with a pistol, and Stone was armed with an assault rifle.

Stone v. State, 2013 WL 5963207, at *1 (Ind. Ct. App. Nov. 6, 2013) (mem.), trans. denied. Stone held Efren at gunpoint while Doan ordered Efren's brother Fidel and Fidel's children into the living room. Id. Stone hit Fidel with the rifle, and Doan took Fidel's wallet. Id. As law enforcement officers arrived, Stone, Doan, and Bethany fled through the back window of the mobile home, where the officers apprehended Stone and Bethany and recovered Stone's rifle. Id.¹

[5] Relevant to this appeal, during Stone's trial, several witnesses testified regarding his leg injury and mobility. For instance, Bethany testified that Stone was unable to walk well; “usually” used crutches, Appellant's Am. App. Vol. III at 106; and that during the burglary, he was using his rifle as a crutch, id. at 107. Efren testified that when he observed Stone in the mobile home, Stone “limped” and “had a prosthesis ․ on his foot.” Id. at 42. Bethany further testified that Stone had “trouble” getting out through the window due to his injury. Id. at 109. Fidel testified that Stone “got stuck” in the window because “the metal on the window ․ pulled or bended a little bit.” Id. at 96.

[6] Indianapolis Metropolitan Police Department Officer Christin Ruddell testified that when she discovered Stone behind the mobile home, Stone was “walking away from” her, but “he had his leg in kind of a brace so he wasn't overly mobile.” Appellant's Am. App. Vol. III at 21. Indianapolis Metropolitan Police Department Officer Vincent Leeds observed Stone “hopping” behind the mobile home, id. at 80, and noted Stone's leg “had some kind of like metal pipes or had like surgery on it where they had -- like pins that hold it together,” id. at 80–81. Crystal also testified that Stone was “hopping” behind the mobile home. Id. at 144.

[7] At trial, Stone's defense was that he helped transport Bethany and Crystal for prostitution, only intervened when he believed a sexual assault occurred in the mobile home, and the State therefore did not prove that he intended to commit the alleged offenses. On direct appeal, Stone challenged the sufficiency of the evidence regarding his burglary and robbery convictions on similar grounds, and this court affirmed those convictions. Stone, 2013 WL 5963207, at *2–3.

[8] On August 18, 2022, Stone filed a PCR petition, alleging that he received ineffective assistance of trial counsel (“Trial Counsel”). Relevant to this appeal, Stone argued that his injuries would have made “the actions of running and jumping through a window ․ very difficult and nearly impossible,” Appellant's App. Vol. II at 13, and that Trial Counsel was ineffective for failing to (1) “fully investigate” Stone's injuries, id.; and (2) present medical evidence regarding Stone's limited mobility.

[9] At the evidentiary hearing, Stone's home healthcare aide Maury Tharpe testified that Stone used a walker; she and Stone's family had to lift Stone to move him places; and Stone “could not bear weight on [his injured] leg at all,” Tr. Vol. II at 29. Tharpe could not “possibly see [Stone] running up and down the stairs, running, jumping, skipping, or even taking a step,” id., and did not believe Stone could “hit somebody with a rifle,” id. at 30, or “jump[ ]” out of a window, id. at 31. Stone's mother offered similar testimony, although she noted Stone could “hop on ․ one foot.” Id. at 38. Dr. Brian Mullis, the physician who placed the frame on Stone's leg, testified that Stone “would have had significant difficulty with walking stairs, and it is unlikely he would have been able to run, jump, or sprint.” Appellant's App. Vol. II at 84.

[10] Trial Counsel testified that she was aware of Stone's “medical situation,” Tr. Vol. II at 8, but it did not seem “impossible” to her that Stone could have committed the charged offenses, id. at 9. Trial Counsel consulted medical professionals, although not with Dr. Mullis or Tharpe, and none “believed any doctor would ever say that it was impossible and there was no way Mr. Stone could have done that,” id. at 15. Trial Counsel maintained that an impossibility defense “would not have gone over well with a jury or a judge” and that it was not in Stone's “best interests to pursue that” defense. Id. Instead, Trial Counsel challenged the State's proof of Stone's intent to commit the alleged offenses.

[11] The PCR court concluded Trial Counsel was “not deficient in her performance,” Appellant's Am. App. Vol. IV at 82, because “it was reasonable for [Trial Counsel] to believe that a defense of impossibility was not the best defense for Mr. Stone,” id. at 83. In particular, the PCR court noted that although Dr. Mullis testified Stone “would have had significant difficulty with walking stairs and would be unlikely to have been able to run, jump or sprint,” “[s]ignificant difficulty and unlikel[ihood] fall far short of establishing impossibility.” Id. at 82–83. The PCR court further concluded that Stone did not “meet his burden in demonstrating that he was prejudiced,” id. at 83–84. Accordingly, the PCR court denied Stone's petition. This appeal ensued.²

Discussion and Decision

The PCR Court Did Not Clearly Err by Denying Stone's PCR Petition

[12] Stone contends that the PCR court erred when it denied his PCR petition. “Post-conviction actions are civil proceedings, meaning the petitioner (the prior criminal defendant) must prove his claims by a preponderance of the evidence.” Bobadilla v. State, 117 N.E.3d 1272, 1279 (Ind. 2019) (citing Ind. Post-Conviction Rule 1(5); Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013)). When a petitioner appeals the denial of post-conviction relief, he “appeals from a negative judgment, so he must show that ‘the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the postconviction court.’ ” Kelly v. State, 257 N.E.3d 782, 792 (Ind. 2025) (quoting Conley v. State, 183 N.E.3d 276, 282 (Ind. 2022)). That is, the petitioner must demonstrate “clear error—that which leaves us with a definite and firm conviction that a mistake has been made.” Bobadilla, 117 N.E.3d at 1279 (quoting Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017)). “We do not reweigh the evidence presented at the post-conviction proceedings, and we examine only the evidence and reasonable inferences that support the postconviction court's determination.” Kelly, 257 N.E.3d at 792 (quoting Conley, 183 N.E.3d at 282). We review pure legal questions de novo. Id. (citing State v. Stidham, 157 N.E.3d 1185, 1190 (Ind. 2020)).

[13] Stone contends the PCR court clearly erred when it concluded that he did not establish that he received ineffective assistance of Trial Counsel. To evaluate a petitioner's ineffective-assistance-of-counsel claim, “we apply the well-established, two-part Strickland test.”³ Bobadilla v. State, 117 N.E.3d 1272, 1280 (Ind. 2019) (citing Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017)). Under that test, 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,” that is, there exists a reasonable probability that “but for counsel's errors the result of the proceeding would have been different.” Id. (citing Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012)); see also Middleton v. State, 72 N.E.3d 891, 891 (Ind. 2017) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)) (“[T]o demonstrate prejudice from counsel's deficient performance, a petitioner need only show ‘a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ”). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Middleton, 72 N.E.3d at 891–92 (quoting Strickland, 466 U.S. at 694) (citing Campbell v. State, 19 N.E.3d 271, 274 (Ind. 2014); Wilkes, 984 N.E.2d at 1241). 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).

[14] “There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Counsel is afforded considerable discretion in choosing strategy and tactics and these decisions are entitled to deferential review.” Weisheit v. State, 109 N.E.3d 978, 983 (Ind. 2018) (internal citations omitted) (citing Stevens v. State, 770 N.E.2d 739, 746–47 (Ind. 2002)). Moreover, “isolated mistakes, poor strategy, inexperience and instances of bad judgment do not necessarily render representation ineffective.” Id. at 984 (citing Stevens, 770 N.E.2d at 747).

[15] Stone argues that Trial Counsel rendered ineffective assistance because she did not consult with Dr. Mullis and Tharpe or call them as witnesses to testify in support of an impossibility defense.⁴ “Expert testimony is appropriate when it addresses issues not within the common knowledge and experience of ordinary persons and would aid the jury.” Malloch v. State, 223 N.E.3d 683, 698 (Ind. Ct. App. 2023) (quoting Miller v. State, 770 N.E.2d 763, 773 (Ind. 2002)), trans. denied, 230 N.E.3d 885 (Ind. 2024). “When [jurors] are faced with evidence that falls outside common experience, we allow specialists to supplement the jurors’ insight.” Id. (alteration in original) (quoting Carter v. State, 754 N.E.2d 877, 882 (Ind. 2001), reh'g denied).

[16] The decision whether to call an expert witness is “generally a strategic decision that we will not second guess.” Malloch, 223 N.E.3d at 698 (citing Curtis v. State, 905 N.E.2d 410, 415 (Ind. Ct. App. 2009), trans. denied); see also Wrinkles v. State, 749 N.E.2d 1179, 1200 (Ind. 2001) (quoting Wisehart v. State, 693 N.E.2d 23, 48 n.26 (Ind. 1998)) (noting that the selection of witnesses is “the epitome of a strategic decision”). We “will not declare counsel ineffective for failure to call a particular witness absent a clear showing of prejudice.” Malloch, 223 N.E.3d at 698 (quoting Ben-Yisrayl v. State, 729 N.E.2d 102, 108 (Ind. 2000), cert. denied).

[17] Here, Trial Counsel consulted with medical professionals and determined that pursuing an impossibility defense was not in Stone's best interests. Instead, Trial Counsel argued that Stone did not have the intent to commit the alleged offenses. This was a strategic decision that was not deficient or unreasonable. See Malloch, 223 N.E.3d at 698.

[18] Moreover, Stone has not shown that Trial Counsel's strategic decision not to argue impossibility caused Stone prejudice. See Middleton, 72 N.E.3d at 891–92 (quoting Strickland, 466 U.S. at 694). First, several witnesses, including nearly all of Stone's fellow perpetrators, testified regarding Stone's participation in the burglary despite his physical limitations—they explained that Stone used a rifle as a crutch and hopped around on his uninjured leg; he had trouble getting out through the window but ultimately managed to do so. Second, although Dr. Mullis testified that Stone “would have had significant difficulty with walking stairs, and it is unlikely he would have been able to run, jump, or sprint,” Appellant's App. Vol. II at 84, Dr. Mullis did not claim that such acts were impossible. And as the State points out, the burglary took place in a mobile home, not a “high-rise building requiring Stone to climb multiple flights of stairs.” Appellee's Br. at 16. Third, even Stone in his PCR petition only states that his injuries would have made the offenses “very difficult and nearly impossible.” Appellant's App. Vol. II at 13 (emphasis added).

[19] For the foregoing reasons, Trial Counsel's assistance was not ineffective. The PCR court therefore did not clearly err by denying Stone's PCR petition. We affirm the PCR court on all issues raised.

[20] Affirmed.

FOOTNOTES

1.   In a related case, this court affirmed Doan's convictions and reversed his habitual-offender enhancement. Doan v. State, 2013 WL 5963485 (Ind. Ct. App. Nov. 6, 2013) (mem.).

2.   Stone put all his citations in footnotes. This court “discourages parties from engaging in such a footnote-citation practice because [it] disrupts the reader from the body of the text, to the bottom of the page, and then back up to the text.” Zimmerman v. Ind. Fam. & Soc. Servs. Admin., 264 N.E.3d 712, No. 24A-PL-1281, slip op. at *1 n.1 (Ind. Ct. App. June 25, 2025) (mem.), trans. denied, 271 N.E.3d 1122 (Ind. 2025).

3.   Strickland v. Washington, 466 U.S. 668, 687 (1984).

4.   Stone briefly argues that Trial Counsel also rendered ineffective assistance because she did not visit the crime scene to determine if Stone could “fit” through the window with the frame on his leg. Appellant's Br. at 15. At the evidentiary hearing, Trial Counsel testified that she would have reviewed “extensive photographs of the crime scene.” Tr. Vol. II at 21. Moreover, it is clear from the photographs Stone submitted that the frame on his leg is smaller than his waist and shoulders. The frame's size would have presented no more of an impediment to Stone's fenestral escape than his own torso.

Felix, Judge.

Tavitas, C.J., and Bradford, J., concur.