Court of Appeals of Indiana | Memorandum Decision 19A-PC-1477 | April 21, 2020 Page 1 of 18

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

Jackie Leigh Butler

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Caroline G. Templeton

Deputy Attorney General 

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Antwan Rush,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent,

April 21, 2020

Court of Appeals Case No.

19A-PC-1477

Appeal from the Marion Superior 

Court 

The Honorable Alicia A. Gooden, 

Judge

The Honorable Richard E. 

Hagenmaier, Commissioner

Trial Court Cause No.

49G21-1003-PC-23463

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1477 | April 21, 2020 Page 2 of 18

Case Summary and Issues

[1] Following a jury trial, Antwan Rush was convicted of one count of dealing in 

cocaine as a Class A felony, among other crimes. He received an aggregate 

sentence of thirty-five years to be served in the Indiana Department of 

Correction. On direct appeal, we affirmed Rush’s convictions. Rush v. State, 

2012 WL 642064 (Ind. Ct. App. Feb. 28, 2012), trans. denied. Rush subsequently 

filed a petition for post-conviction relief (“PCR”) which was denied by the postconviction court. Rush challenges the denial of his petition, raising two issues 

for our review: 1) whether he received ineffective assistance from his trial 

counsel and 2) whether the proffered testimony of a witness at the postconviction hearing constituted newly discovered evidence. Concluding Rush’s 

trial counsel rendered effective assistance and Rush did not prove the existence 

of newly discovered evidence, we affirm. 

Facts and Procedural History 

[2] In the early morning hours of March 8, 2010, Rush was driving a Trailblazer 

when Officer Travis Hunter of the Indianapolis Metropolitan Police

Department (“IMPD”) observed that the vehicle had a cracked taillight. Officer 

Hunter initiated a traffic stop and learned that Rush’s driving privileges had 

been suspended. Rush’s cousin, Ronyai, came to the scene to take possession of 

the vehicle but IMPD policy precluded officers from releasing the Trailblazer to 

Ronyai. Rush was arrested and taken to the Marion County Jail, an inventory 
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search of the Trailblazer was conducted, and the vehicle was towed from the 

scene to an impound yard.

[3] Around this time, Detective Matthew Stevenson of the IMPD Violent Crimes 

Unit (“VCU”) was seeking to contact Rush in an unrelated matter. On the 

morning of March 8, he learned that Rush had been arrested, but Rush was 

released from jail before Detective Stevenson could contact him. Detective 

Stevenson then discovered several Indianapolis addresses connected to Rush.

Among those was a unit in a duplex on North Carrollton Avenue (“4210 

Carrollton”). Bureau of Motor Vehicles’ (“BMV”) records revealed that 4210 

Carrollton was Rush’s last known address. Detective Stevenson then requested 

this address be placed under surveillance. 

[4] During the afternoon of March 8, detectives observed a Chevrolet Malibu drive 

from 4210 Carrollton to a nearby Walgreens store. Rush’s brother, Antonio, 

exited the car, entered the store, purchased a box of latex surgical gloves, and 

got back in the car. The Malibu then returned to 4210 Carrollton. After the 

Malibu returned from Walgreens, Rush emerged from 4210 Carrollton and 

stood next to the car for several minutes before returning to the house. 

Detectives also saw Ronyai twice drive to 4210 Carrollton in a black Dodge 

Charger. There was very heavy foot and vehicular traffic to and from 4210 

Carrollton that was uncharacteristic of the neighborhood – by one detective’s 

estimate, nearly thirty-five people came and went while the house was under 

surveillance – with each person remaining at the residence for only a few 

minutes before leaving. Detectives recognized this conduct as characteristic of 
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individuals purchasing drugs. Detectives later learned that Brigitte Winters was 

among those who went to 4210 Carrollton on March 8; she went there to 

purchase crack.

[5] Late that afternoon, detectives reported that the Malibu left 4210 Carrollton.

Detective Stevenson requested that uniformed police officers stop the car, and 

he and several other detectives traveled to the scene of the traffic stop. When 

police stopped the vehicle, they found Antonio driving with Rush in the 

passenger’s seat. Each was in possession of large sums of cash. While the traffic 

stop was under way, other VCU detectives approached 4210 Carrollton and 

knocked on the front door. After receiving no reply, detectives knocked louder. 

They heard loud noises coming from inside the house. Shortly after this, 

Ronyai opened a space in the blinds to see who was at the door. After Ronyai 

saw detectives, he snapped the blinds closed. The detectives continued to hear

noise from inside the house, including Ronyai’s voice, but no one came to the 

door. Winters was still in the house when police knocked but she hid upstairs 

because there was no way for her to get out of the house without being spotted 

by police.

[6] On direct appeal, the court described what occurred next:

Knowing that older duplexes like the one at 4210 Carrollton 

often allowed attic access to the adjacent unit in the building, 

Detective Gregory knocked on the door of the other unit in the 

duplex, 4212 Carrollton. One of its occupants admitted him to 

the residence. Detective Gregory explained that police suspected 

criminal activity in 4210 Carrollton, and obtained identification

information from the occupants of 4212 Carrollton. After 
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advising the occupants to remain inside for their safety, Detective 

Gregory left 4212 Carrollton. Among those in 4212 Carrollton 

was Ronyai, who had identified himself to Detective Gregory as 

Sam Jones and provided a date of birth and social security 

number.

Detective Gregory ran each of 4212 Carrollton’s occupants[’]

names through police computers and determined that the 

information Ronyai provided was false. . . . Ronyai, 

accompanied by a female adult, left the house carrying a child in 

his arms. Detective Gregory called Ronyai over to ask him about 

the false identification information he had provided. After 

handing the child over to his female companion, Ronyai 

provided correct identification information. Detective Gregory 

checked the correct information in police computers and 

determined that Ronyai’s driving privileges had been suspended. 

Because detectives had seen Ronyai driving the black Dodge 

Charger earlier that day, [they] arrested him.

In the interim, Detective Stevenson sought and obtained [a]

search warrant[] for 4210 Carrollton . . . . During their search of 

4210 Carrollton, police found drug-related items throughout the 

first floor of the house, including 281.243 grams of powder 

cocaine and 90.639 grams of crack cocaine; cooking pans with 

cocaine residue; numerous rubber gloves and plastic baggies, 

several of which contained crack cocaine; a twenty-gauge 

shotgun and shotgun shells; and a loaded .38 Special revolver. 

Police also found, in the second floor of the house, a panel 

allowing access into the shared attic between 4210 Carrollton and 

4212 Carrollton, which permitted Ronyai to move between the 

two units in the duplex while avoiding police observation.
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Id. at *3. At the time police served the search warrant, Winters was still in the 

house. Officers spoke with Winters. However, they allowed Winters to leave 

and did not include any information about her in the probable cause affidavit.

[7] The State charged Rush with one count of dealing in cocaine as a Class A 

felony for the drugs found at 4210 Carrollton, among other crimes related to 

other times and places.

1 This charge was based on the theory of constructive 

possession because Rush was not at 4210 Carrollton when the search warrant 

was executed and the drugs were found. Winters was not listed as a State’s 

witness in the charging information. Ronyai was charged with related offenses

and tried alongside Rush. 

[8] Shortly before trial, prosecutors on this case changed and the new prosecutor 

filed the State’s final witness list which did not include Winters as a potential 

witness. However, the State notified defense counsel that a “confidential 

informant” had given a taped statement but would not be called as a witness 

during its case-in-chief. See [Direct Appeal] Transcript, Volume IV at 74.2

[9] Rush’s jury trial ensued. At the conclusion of the State’s evidence, the State 

requested to have Winters testify as a rebuttal witness to counter testimony that 

1 The State also charged Rush with one count of conspiracy to commit dealing in cocaine (a second count 

was dismissed by the State before trial) and a second count of dealing in cocaine, both Class A felonies; two 

counts of possession of cocaine and possession of cocaine and a firearm, each Class C felonies; unlawful 

possession of a firearm by a serious violent felon, a Class B felony; and possession of marijuana, a Class A 

misdemeanor. See Appellant’s [Direct Appeal] Appendix, Volume I at 36-37. 

2 Our citation to the direct appeal transcript is based on the .pdf pagination.
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Ronyai was never in the residence and never had cocaine in his possession. 

According to the State, Winters would testify that she was at 4210 Carrollton at 

the time of the search and that Ronyai was inside 4210 Carrollton with her. 

Ronyai’s counsel objected to Winters testifying; Rush’s counsel did not audibly 

join the discussion. The trial court ultimately ruled that Winters would not be 

allowed to testify.

[10] The jury found Rush guilty as charged. The trial court entered judgment of 

conviction against Rush for convictions including one count of dealing in 

cocaine at 4210 Carrollton.3 The trial court sentenced Rush to thirty-five years. 

A panel of this court affirmed Rush’s convictions on direct appeal. Rush, 2012

WL 642064 at *9. 

[11] In 2012, Rush filed a pro se petition for PCR alleging, inter alia, that his trial 

counsel was ineffective. His petition was amended by counsel in 2017 to raise

the following issues relevant to this appeal: his trial counsel was ineffective for 

failing to investigate and speak to Winters, who arguably had exculpatory 

evidence, and the testimony of his co-defendant, Ronyai, was newly discovered 

evidence. See Appellant’s [Post-Conviction Relief] Appendix, Volume I at 47. 

[12] At the PCR hearing, the court heard testimony from Winters, Rush’s trial 

counsel, and Ronyai. Winters testified that she was familiar with Rush because 

3 The trial court also entered judgments of conviction for one count of dealing in cocaine and one count of 

possession of marijuana related to drugs found during a search of the Trailblazer. 
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she used to get crack from him in 2009. On March 8, 2010, Winters had gone to 

4210 Carrollton to “get . . . a sack of crack[.]” [Post-Conviction Relief] 

Transcript (“PCR Tr.”) at 4. When she arrived at 4210 Carrollton, Rush opened 

the door and Winters noticed that the house, including the kitchen counter, was 

cleaner than usual. Rush then gave Winters a sack of crack. When asked if she

was sure that it was Rush who sold the crack to her or if there were other people 

that sold to her from that address, Winters said, “Just him and I.” Id. at 7. 

Shortly thereafter, police arrived at 4210 Carrollton; Rush had already left. The 

police knocked on the door. Winters tried to find a way to get out the house but

was unable to, so she ran upstairs and hid. At some point, Winters came back 

downstairs but this time she noticed two bags of cocaine on the kitchen counter

that were not there when she had entered. Later in her testimony, Winters

stated that she was not positive that Rush had sold her the crack because she 

kept “getting [Rush and Ronyai] mixed up[.]” Id. at 22. However, Winters said 

that she obtained crack from Rush on most occasions.

[13] Rush’s trial counsel, Jeffery Mendes, testified that he could not remember if he 

had ever spoken with Winters. However, Mendes could not locate his file 

regarding Rush’s case and was testifying from memory about an eight to nineyear-old case. Nonetheless, Mendes stated, “I don’t know why I didn’t speak to 

her, unless her name was never given to me or presented to me as a person that 

needed to be spoken to, but I don’t think any of the . . . lawyers spoke to her.” 

Id. at 31. 
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[14] Ronyai testified that he did not see Rush at 4210 Carrollton on March 8, that 

Rush was not in the house when Winters arrived, and that Rush did not sell 

Winters crack that day. See id. at 44. Ronyai confirmed that he was in the house 

when police came, the cocaine on the counter belonged to him, and he sold 

drugs to Winters at 4210 Carrollton.

4

[15] The post-conviction court issued findings of fact and conclusions thereon 

denying Rush’s amended petition. The post-conviction court concluded:

[T]here was other evidence that linked [Rush] with the house. It 

could very well have been a strategy not to pursue discovery of a 

witness who could likely be harmful to the defense. By 

discovering [Winters] and interviewing her the defense could 

very well have increased the likelihood of her being a witness, 

since the State could argue that the defense was then given 

discovery prior to trial, thus lessening the argument of surprise.

Regardless, the Court does find that [Rush] has not proven 

ineffectiveness given all of the circumstances.

Additionally, [Rush] fails to show how this evidence would have 

resulted in a different outcome. The allegation is that [Winters’] 

testimony would help show [Rush] was not there that day. Any 

minimal relevance such testimony might have had is certainly 

outweighed by the credibility issues surrounding [Winters] and 

her potential for harmful testimony. 

4 Ronyai asked Rush’s counsel to cancel the transport order for his appearance at Rush’s PCR hearing 

because he was “currently pursuing [his] own legal endeavors” and offered to instead write a statement on 

Rush’s behalf. See [Post-Conviction Relief] Exhibits, Volume II at 11. When he was nonetheless transported 

to court, he decided to testify because Rush is “taking a bullet that he don’t deserve and that’s something that 

tears me up at night and he shouldn’t . . . be here. He shouldn’t be going through this.” PCR Tr. at 47. 
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* * * 

[Ronyai] did not come forward to testify until after his appeal 

was lost and his [PCR] denied. He had nothing to lose by 

testifying at the hearing. Such testimony is inherently suspect. . . . 

Such testimony is not “newly discovered” evidence and should 

be given no weight in this case. And assuming it is considered, 

[Ronyai’s] testimony was not “worthy of credit.”

Appealed Order at 5-6, 8. Rush now appeals.

Discussion and Decision 

I. Post-Conviction Relief Standard of Review

[16] Post-conviction proceedings are civil in nature and the petitioner must therefore 

establish his claims by a preponderance of the evidence. Ind. Post-Conviction 

Rule 1(5). “Post-conviction proceedings do not afford the petitioner an 

opportunity for a super appeal, but rather, provide the opportunity to raise 

issues that were unknown or unavailable at the time of the original trial or the 

direct appeal.” Turner v. State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012), trans.

denied. To prevail on appeal, the petitioner must show that the evidence as a 

whole leads unerringly and unmistakably to a conclusion opposite that reached 

by the post-conviction court. Hall v. State, 849 N.E.2d 466, 469 (Ind. 2006). This 

court will not reweigh the evidence or reassess the credibility of the witnesses 

and we consider only the evidence and reasonable inferences supporting the 

judgment. Id. at 468-69. We do not defer to the post-conviction court’s legal 

conclusions but do accept its factual findings unless they are clearly erroneous. 
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Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002), cert. denied, 540 U.S. 830

(2003).

II. Ineffective Assistance of Trial Counsel

[17] Rush first contends the post-conviction court erred in denying his petition for 

PCR on his claim that he received ineffective assistance of trial counsel. We 

review claims of ineffective assistance of trial counsel under the two-prong test

announced in Strickland v. Washington, 466 U.S. 668 (1984). Kubsch v. State, 934 

N.E.2d 1138, 1147 (Ind. 2010). To prevail on a claim of ineffective assistance of 

counsel, the petitioner must show his trial counsel’s performance was deficient 

and counsel’s deficient performance prejudiced him. Strickland, 466 U.S. at 687. 

To satisfy the first prong, the petitioner must show counsel’s representation fell 

below an objective standard of reasonableness and counsel committed errors so 

serious petitioner did not have “counsel” guaranteed by the Sixth Amendment 

to the United States Constitution. Garrett v. State, 992 N.E.2d 710, 718-19 (Ind. 

2013). To satisfy the second prong, the petitioner must show a reasonable 

probability that, but for counsel’s deficient performance, the result of the 

proceeding would have been different. Id. at 719. “A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Strickland, 466 

U.S. at 694. These two prongs are separate and independent inquires. Manzano 

v. State, 12 N.E.3d 321, 326 (Ind. Ct. App. 2014), trans. denied, cert denied, 135 

S.Ct 2376 (2015). Therefore, “if it is easier to dispose of an ineffectiveness claim 

on one of the grounds instead of the other, that course should be followed.” 

Talley v. State, 736 N.E.2d 766, 769 (Ind. Ct. App. 2000). 
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[18] We recognize a strong presumption counsel rendered adequate legal assistance 

and afford trial counsel “considerable discretion in choosing strategy and 

tactics, and we will accord those decisions deference.” Timberlake v. State, 753 

N.E.2d 591, 603 (Ind. 2001), cert denied, 537 U.S. 839 (2002). In order to 

overcome this strong presumption, a petitioner must offer “strong and 

convincing evidence” to the contrary. Smith v. State, 822 N.E.2d 193, 202 (Ind. 

Ct. App. 2005), trans. denied. 

[19] Rush contends that Mendes was ineffective for allegedly failing to adequately 

investigate a potentially exculpatory witness – Brigitte Winters – whose 

testimony he believes would have likely acquitted him of dealing in cocaine at 

4210 Carrollton.5 When deciding a claim of ineffective assistance for failure to 

investigate, we apply a great deal of deference to counsel’s judgments. Boesch v. 

State, 778 N.E.2d 1276, 1283 (Ind. 2002). Establishing failure to investigate as a 

ground for ineffective assistance of counsel requires going beyond the trial 

record to show what an investigation, if undertaken, would have produced. 

McKnight v. State, 1 N.E.3d 193, 201 (Ind. Ct. App. 2013). “This is necessary 

because success on the prejudice prong of an ineffectiveness claim requires a 

showing of a reasonable probability affecting the result.” Id. (citation omitted).

5 Although Rush’s prayer for relief in this appeal is that “his convictions and sentences” be vacated, Brief of 

Appellant at 35, other than two peripheral mentions of the Trailblazer, he has not argued that Winters’ or 

Ronyai’s testimony would entitle him to relief on convictions related to drugs found in the vehicle.
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[20] In the instant case, the State agreed that they did not reveal Winters’ name until 

the day of Rush’s trial. Before trial, Winters was referred to only as a 

“confidential informant” by the State when revealing her existence to defense 

counsel. This would suggest that Rush’s trial counsel would not have known to 

interview Winters because of her status. On the other hand, although the record 

is unclear whether anyone else knew Winters was in the house when the 

warrant was served, at least one person (Ronyai, but also from Winters’ 

testimony at the PCR hearing, Rush) knew she was at the house earlier and she 

was a regular purchaser. Thus, Rush could have had some idea of who the 

“confidential informant” was to inform his trial counsel to investigate Winters. 

But regardless of the question of deficient performance, Rush has not shown 

how he was prejudiced by his trial counsel’s performance. See Young v. State, 

746 N.E.2d 920, 927 (Ind. 2001) (explaining that it was not necessary to address 

the allegations of deficient performance where the petitioner had failed to 

establish prejudice and affirming the trial court’s denial of PCR); Strickland, 466 

U.S. at 697 (explaining that “[i]f it is easier to dispose of an ineffectiveness 

claim on the ground of lack of sufficient prejudice, which we expect will often 

be so, that course should be followed”).

[21] Rush cannot prove that he was prejudiced because Winters was not an 

exculpatory witness as he claims. Notwithstanding that the State represented at 

trial that Winters would testify she purchased cocaine from Ronyai, Winters 

testified at the post-conviction hearing that she knew Rush because he 

previously sold crack to her and that she had gone to 4210 Carrollton on March 
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8, 2010 mainly to purchase crack from Rush. It is true that Winters became

confused about who actually sold her crack on March 8 as her testimony 

continued, but she averred that she dealt with Rush on most occasions. See

PCR Tr. at 23. Nonetheless, Winters’ testimony would have established a clear 

nexus between Rush and drugs being sold out of 4210 Carrollton, which would 

have been evidence unfavorable to Rush. Rush’s claim that Winters’ testimony 

is credible only to implicate Ronyai as the sole person at 4210 Carrollton on 

March 8 who was responsible for the drugs is an invitation for us to reassess the 

credibility of the witnesses – an invitation that we cannot accept. See Hall, 849 

N.E.2d at 469.

[22] Moreover, even if Winters had testified at trial that Ronyai sold her the drugs

and was the only person in the house with her on March 8 when the drugs were 

found, the remaining evidence does not support a reasonable probability that 

the result would have been different – that is, that Rush would have been

acquitted of dealing in cocaine from 4210 Carrollton. Rush has some possessory 

interest in 4210 Carrollton. BMV records show 4210 Carrollton as Rush’s last 

known address. While detectives surveilled the house, they noticed Rush 

emerge from the house and return to it several times. During this same time, 

they observed conduct characteristic of people purchasing drugs from that 

location. When detectives conducted a traffic stop after Rush left the house in a 

vehicle, they found Rush in possession of large amounts of cash. When 

detectives later executed a search warrant on 4210 Carrollton, they discovered a 

large quantity of drugs, paraphernalia, and weapons. In light of this evidence, a
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reasonable factfinder could conclude that the evidence was sufficient to support 

Rush’s convictions even if Winters had testified at trial as she did at the PCR 

hearing. 

[23] In the circumstances surrounding this case, Rush has failed to show prejudice, 

that is, that Winters’ testimony would have resulted in a different outcome. 

Therefore, he has failed to meet his burden of proving by a preponderance of 

the evidence that his trial counsel was ineffective. Thus, the post-conviction 

court did not err in denying him relief on this issue.6

III. Newly Discovered Evidence

[24] Rush next argues that the post-conviction court erred in determining that 

Ronyai’s testimony did not constitute newly discovered evidence. We disagree.

[25] In Indiana, new evidence will mandate a new trial only when the petitioner 

demonstrates 1) the evidence has been discovered since the trial, 2) it is material 

and relevant, 3) it is not cumulative, 4) it is not merely impeaching, 5) it is not 

privileged or incompetent, 6) due diligence was used to discover it in time for 

trial, 7) the evidence is worthy of credit, 8) it can be produced upon a retrial of 

the case, and 9) it will probably produce a different result at retrial. Carter v. 

State, 738 N.E.2d 665, 671 (Ind. 2000). We “analyze[] these nine factors with 

6 Rush alternatively argued in his petition for relief that Winters’ testimony was newly discovered evidence, 

but he failed to present that as a separate issue on appeal and therefore, we need not discuss whether Winters’ 

testimony constituted newly discovered evidence. 
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care, as the basis for newly discovered evidence should be received with great 

caution and the alleged new evidence carefully scrutinized.” Taylor v. State, 840 

N.E.2d 324, 330 (Ind. 2006) (quotation omitted). “The burden of showing that

all nine requirements are met rests with the petitioner for post-conviction 

relief.” Id. (emphasis added).

[26] The post-conviction court determined that Rush failed to prove at least one of 

the nine requirements: that Ronyai’s testimony was worthy of credit. The nine 

factors enumerated in Carter for newly discovered evidence are written in the 

conjunctive and therefore, if Rush failed to prove any one requirement, his 

claim fails. Whether a witness’s testimony at a post-conviction hearing is 

worthy of credit is a factual determination to be made by the post-conviction 

court which has the opportunity to see and hear the witness testify. McVey v. 

State, 863 N.E.2d 434, 446 (Ind. Ct. App. 2007), trans. denied. It is not within an 

appellate court’s province to replace a post-conviction court’s assessment of 

credibility with its own. State v. McCraney, 719 N.E.2d 1187, 1191 (Ind. 1999). 

[27] The post-conviction court found that Ronyai’s testimony was “inherently 

suspect” because he had nothing to lose by testifying at the hearing. Appealed 

Order at 8. Ronyai, who understandably did not testify at trial, testified at the 

PCR hearing that he did not see Rush at 4210 Carrollton on March 8 and that 

the drugs found there were his. He also testified Rush was not involved with 

drugs. Ronyai only testified at the PCR hearing after being notified of Rush’s 

extensive sentence; Ronyai did not believe Rush (his cousin) deserved to be 

incarcerated. Ronyai has nothing to lose by claiming he alone sold drugs from 
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4210 Carrollton because he is currently serving an executed sentence, his direct 

appeal was unsuccessful, and the denial of his PCR petition is final.

7

 

[28] This case is similar to Birkla v. State, 272 Ind. 117, 396 N.E.2d 115 (1979). 

Birkla and his co-defendant were charged with murder. Birkla was granted a 

separate trial and was tried before his co-defendant. Birkla’s co-defendant did 

not testify at his trial. After Birkla was convicted of murder and sentenced to life 

imprisonment, his co-defendant pleaded guilty to voluntary manslaughter. 

Birkla filed a petition for PCR alleging that newly discovered evidence from his 

co-defendant existed. At the post-conviction hearing, Birkla’s co-defendant

testified that he was the sole perpetrator and that Birkla was not involved in the 

crime. The post-conviction court denied his petition and concluded,

[Co-defendant] was tried after [Birkla], did not testify at the 

original trial of [Birkla] and was allowed to plead guilty to 

voluntary manslaughter. A witness under these circumstances 

has very little, if anything, to lose by now admitting complete 

responsibility for the crimes with which he and [Birkla] were 

charged, making it in my opinion not worthy of credit and 

therefore not likely to produce a different result in the trial of 

[Birkla]. 

7 Ronyai was charged with crimes similar to Rush. Ronyai was tried alongside Rush and was also found 

guilty of several charges, including dealing in cocaine at 4210 Carrollton. Ronyai’s conviction for dealing in 

cocaine was affirmed on direct appeal. See Thompson v. State, 966 N.E.2d 112, 124 (Ind. Ct. App. 2012), 

trans. denied. Ronyai filed a petition for PCR, but his petition was denied on May 13, 2014. See Thompson v. 

State, Cause No. 49G20-1003-PC-23467; see also PCR Tr. at 51. He did not appeal the post-conviction 

decision and the time to seek an appeal has lapsed. 
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Id. at 118, 396 N.E.2d at 116. On appeal, our supreme court affirmed the 

decision of the post-conviction court. Here, too, Ronyai has exhausted all of his 

legal remedies and therefore, he has nothing to lose by taking responsibility for 

the drugs found inside 4210 Carrollton. Given our deferential standard of 

review, we conclude that the post-conviction court did not err in denying Rush

relief on this issue.8

Conclusion

[29] Our review of the post-conviction court’s judgment does not leave us with the

belief that a mistake has been made: Rush has not shown by a preponderance of 

evidence that the evidence as a whole leads unerringly and unmistakably to the 

conclusion that his counsel was ineffective for allegedly failing to investigate 

Winters or that Ronyai’s testimony constituted newly discovered evidence. We 

therefore affirm the post-conviction court’s order denying Rush’s petition for 

post-conviction relief.

[30] Affirmed.

Bradford, C.J., and Altice, J., concur.

8 Rush also argues that the cumulative effect of his trial counsel’s alleged failure to investigate Winters and 

Ronyai’s admission entitles him to relief. Specifically, he contends that “[m]ost cases don’t involve two 

previously-unheard witnesses, one the result of ineffective assistance of counsel and the other the Fifth 

Amendment rights of a co-defendant.” Br. of Appellant at 34. However, as discussed above, we have found 

no error in either respect and therefore, Rush is not entitled to the relief he seeks.