Court of Appeals of Indiana | Memorandum Decision 32A01-1710-PC-2487 | June 26, 2018 Page 1 of 9

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Matthew J. McGovern

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr. 

Attorney General of Indiana

Monika Prekopa Talbot

Supervising Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

James Crawford,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent

June 26, 2018

Court of Appeals Case No.

32A01-1710-PC-2487

Appeal from the Hendricks Superior 

Court

The Honorable Robert W. Freese, 

Judge

Trial Court Cause No.

32D01-1501-PC-2

Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 32A01-1710-PC-2487 | June 26, 2018 Page 2 of 9

Case Summary

[1] James Crawford appeals the denial of his petition for post-conviction relief. He 

contends that the post-conviction court clearly erred in determining that he 

failed to demonstrate that he received the ineffective assistance of trial counsel.

Concluding that Crawford has not met his burden to prove that he received 

ineffective assistance, we affirm.

Facts and Procedural History

[2] On January 23, 2006, Crawford and his brother (collectively “the Brothers”) 

were each charged with six counts of class B felony robbery (six different 

victims), seven counts of class D felony theft, and six counts of class D felony 

criminal recklessness, for a total of nineteen counts. The Brothers originally 

hired attorney John Moss to represent them, but after he repeatedly failed to 

appear for hearings, the Brothers hired attorney Joseph Thoms to represent 

them. 

[3] Prior to trial, attorney Thoms negotiated a plea deal with the deputy prosecutor 

which would have resulted in a fourteen-year prison sentence for each of the

Brothers. Despite the strong recommendation from their attorney that they 

should accept the deal, the Brothers rejected the plea agreement. The Brothers 

waived the right to a jury trial, both orally and in writing, and the case 

proceeded to a bench trial on August 31, 2007.

[4] During trial, the State called eight witnesses which included the six alleged 

armed robbery victims, the owner of the handgun used to facilitate the 
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robberies, and the police detective assigned to the case. Robbery victim 

Samantha Stevenson testified that one of the Brothers pointed a gun and 

ordered the six victims to get on the floor on their stomachs. She was five 

months pregnant at the time, so it was difficult for her to stay on her stomach, 

but one of the Brothers kept yelling at her and nudged her with his foot. One of 

the Brothers took her engagement and wedding rings off her finger. One of the 

Brothers kicked her hand. The Brothers repeatedly threatened to kill the six 

victims. Several of the victims testified that Crawford and his brother passed 

the gun back and forth during the robbery and that Crawford pointed the gun 

right at their heads.

[5] At the trial’s conclusion, the court found the Brothers guilty of six counts of 

class B felony robbery and six counts of class D felony theft. The trial court 

found the Brothers not guilty of one count of class D felony theft and not guilty 

of the six counts of class D felony criminal recklessness. The court sentenced 

Crawford to the advisory sentence of ten years on each robbery count, to be 

served consecutively, and six months for each theft count, to be served 

concurrently with each other and with the sentences on the robbery counts, for 

an aggregate sentence of sixty years’ imprisonment.

[6] No direct appeal was ever filed, but on January 21, 2015, the Brothers filed 

separate petitions for post-conviction relief alleging, among other things, that 

they received ineffective assistance of trial counsel. An evidentiary hearing was 

held on September 18, 2015. The Brothers called attorney Thoms to testify. 

Attorney Thoms stated that he met with the Brothers on multiple occasions 
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prior to trial. He testified that he specifically advised the Brothers that they 

faced “upwards of 120 years” because the maximum sentence for a class B 

felony was twenty years and then it would be “times 6.” PCR Tr. Vol. 2 at 7. 

Attorney Thoms testified that, against his clear advice, the Brothers rejected the 

plea offer that he had negotiated with the State. Attorney Thoms further 

testified that, due to the overwhelming evidence against the Brothers, he 

believed the best defense strategy was to challenge the State’s case through 

vigorous cross-examination of the witnesses, and to move for a directed verdict 

at the conclusion of the State’s case, which he did. The Brothers also testified at 

the hearing.

[7] On September 27, 2017, the post-conviction court entered its findings of fact, 

conclusions thereon, and order denying Crawford’s petition for relief. This 

appeal ensued.

Discussion and Decision

[8] The petitioner in a post-conviction proceeding has the burden of establishing 

grounds for relief by a preponderance of the evidence. Ellis v. State, 67 N.E.3d 

643, 646 (Ind. 2017). When appealing the denial of a petition for postconviction relief, the petitioner stands in the position of one appealing from a 

negative judgment. Id. To prevail on appeal, a petitioner must show that the 

evidence as a whole leads unerringly and unmistakably to a conclusion opposite 

that reached by the post-conviction court. Id. Where, as here, the postconviction court makes findings of fact and conclusions of law as required by 

Indiana Post-Conviction Rule 1(6), we will reverse its findings only upon a 
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finding of clear error, namely “that which leaves us with a definite and firm 

conviction that a mistake has been made.” Id. (citation omitted). We will not 

reweigh the evidence or judge the credibility of witnesses, and will consider 

only the probative evidence and reasonable inferences flowing therefrom that 

support the post-conviction court’s decision. Hinesley v. State, 999 N.E.2d 975, 

981 (Ind. Ct. App. 2013), trans. denied (2014).

[9] When evaluating an ineffective assistance of counsel claim, we apply the twopart test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Humphrey 

v. State, 73 N.E.3d 677, 682 (Ind. 2017). “To satisfy the first prong, ‘the 

defendant must show deficient performance: representation that 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.

(quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the 

second prong, the defendant must show prejudice. Id. To 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.” Middleton v. State, 72 N.E.3d 891, 

891-92 (Ind. 2017) (emphasis and citation omitted). “A reasonable probability is 

a probability sufficient to undermine confidence in the outcome.” Id. 

[10] Isolated poor strategy, inexperience, or bad tactics does not necessarily 

constitute ineffective assistance. Hinesley, 999 N.E.2d at 982. When 

considering a claim of ineffective assistance of counsel, we strongly presume 

“that counsel rendered adequate assistance and made all significant decisions in 
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the exercise of reasonable professional judgment.” Id. (citation omitted). We 

presume that counsel performed effectively, and a defendant must offer strong 

and convincing evidence to overcome this presumption. Id.

[11] We must acknowledge that the judge who presided over Crawford’s bench trial 

is also the judge who presided over the post-conviction proceedings, and 

therefore the post-conviction court’s findings and judgment are entitled to 

“greater than usual deference.” Id. (quoting McCullough v. State, 973 N.E.2d 62, 

75 (Ind. Ct. App. 2012), trans. denied (2013)). Indeed, we have explained that, 

in such a case, the judge is uniquely situated to assess whether trial counsel’s 

performance fell below an objective standard of reasonableness and whether, 

but for counsel’s unprofessional conduct, there was a reasonable probability 

that a different verdict would have been reached. Id. 

[12] Crawford first argues that trial counsel was ineffective for failing to correctly 

advise him of the potential sentence he faced and failing to ensure that he

“knowingly and intelligently rejected the plea agreement offered by the 

prosecution.” Appellant’s Br. at 16. However, this issue was not raised in 

Crawford’s petition for post-conviction relief and was therefore properly 

determined by the post-conviction court to be waived. Accordingly, the issue is 

not available for appellate review.

1 See Pruitt v. State, 903 N.E.2d 899, 906 (Ind. 

 

1 Waiver notwithstanding, attorney Thoms testified unequivocally that he advised Crawford of the potential 

lengthy sentence that he faced and further advised Crawford to accept the plea agreement. We are 

unpersuaded that the trial court’s misstatement regarding the maximum possible sentence that occurred at the 

beginning of the bench trial and after Crawford had already rejected the plea agreement in writing had any 
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2009) (“Issues not raised in the petition for post-conviction relief may not be 

raised for the first time on post-conviction appeal.”) (quoting Allen v. State, 749 

N.E.2d 1158, 1171 (Ind. 2001)). 

[13] Crawford also questions the adequacy of counsel’s trial preparation and chosen 

defense strategy, asserting that counsel was ineffective in failing to proffer a 

“fake robbery” defense and argue that the Brothers arranged the whole incident 

with one of the alleged victims. Appellant’s Br. at 25. Specifically, Crawford

claims that attorney Thoms failed to obtain his former attorney’s files (including 

depositions) or spend sufficient time with the Brothers to prepare the “fake 

robbery” defense. The post-conviction court found:

38. Regarding the depositions, attorney Thoms stated that he 

was unsuccessful in attempting to get attorney Moss to turn over 

his files or the depositions. Attorney Moss had a history of failing 

to appear in court. Attorney Thoms admitted that he did not 

attempt to obtain a copy from the Court’s file. Nevertheless, 

Petitioners have failed to demonstrate how knowledge of the 

contents of the depositions would have resulted in an acquittal. 

The evidence in this case was very strong. All six armed robbery 

victims testified that [the Brothers] robbed them. Minor 

inconsistencies in their testimony did not refute or lessen the 

overwhelming conclusion that the Brothers robbed them at 

gunpoint. At the PCR hearing, both Brothers admitted to 

committing the armed robbery.

 

effect on his decision to reject the agreement. Crawford has shown neither that counsel performed deficiently 

nor that such performance prejudiced him.
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39. The “pretend robbery” defense claimed by [Crawford] had 

obvious limitations and drawbacks starting with the fact that the 

alleged agreement to fake a robbery would have only applied to 

one person and not to the other five people who were robbe[d] at 

gunpoint. Furthermore, at the PCR hearing, [Crawford] 

admitted that it turned into a real robbery. His brother never 

thought it to be anything else. The Brothers had no real defense 

to their crimes. Nevertheless, attorney Thoms assisted them in 

the exercise of their constitutional right to make the state prove 

its case beyond a reasonable doubt. This court will not secondguess matters of strategy by trial counsel.

40. Attorney Thoms subjected the State’s case to adversarial 

testing and his performance did not fall below an objective 

standard of reasonableness based upon prevailing professional 

norms. Petitioners have failed to prove ineffective assistance of 

counsel.

Appealed Order at 7-8.

[14] As found by the post-conviction court, Crawford has failed to present strong 

and convincing evidence to overcome the presumption that counsel was 

adequately prepared for trial or that it is reasonably probable that additional 

preparation (such as obtaining the depositions) would have resulted in a 

different verdict. Attorney Thoms testified that he met with the Brothers on 

multiple occasions, conducted discovery, and was adequately prepared for trial. 

He believed that the evidence against the Brothers was overwhelming and that 

the best defense strategy was to challenge the State’s case through vigorous 

cross-examination of the witnesses. It is well settled that choice of defense

theory is a matter of trial strategy, and trial strategy “is not subject to attack 
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through an ineffective assistance of counsel claim, unless the strategy is so 

deficient or unreasonable as to fall outside of the objective standard of 

reasonableness.” Benefield v. State, 945 N.E.2d 791, 799 (Ind. Ct. App. 2011).

The post-conviction court concluded that attorney Thoms’s performance did 

not fall below an objective standard of reasonableness in this regard, and 

Crawford has not shown that the evidence as a whole leads unerringly and 

unmistakably to an opposite conclusion. Accordingly, we affirm the denial of 

his petition for relief.

[15] Affirmed.

Bailey, J., and Brown, J., concur.