Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020 Page 1 of 23

ATTORNEYS FOR APPELLANT

Jeffrey A. Baldwin

Tyler D. Helmond

Voyles Vaiana Lukemeyer Baldwin & 

Webb

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis. T. Hill, Jr.

Attorney General

Ellen H. Meilaender

Supervising Deputy Attorney

General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jerry Jones,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent

July 31, 2020

Court of Appeals Case No.

19A-PC-3051

Appeal from the Dearborn Circuit 

Court

The Honorable James D. 

Humphrey, Judge

Trial Court Cause No.

15C01-1712-PC-19

Crone, Judge.

Case Summary

[1] Jerry Jones appeals the denial of his petition for post-conviction relief (PCR),

arguing that the post-conviction court clearly erred in determining that he failed 
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to demonstrate that his guilty plea counsel provided ineffective assistance.

Finding that he either failed to establish or waived the alleged errors, we affirm.

Facts and Procedural History

[2] Between July 1 and August 20, 2014, Jones, his wife Chauntel, and Anita 

Smith, with the intent to commit the crime of level 2 felony dealing in 

(manufacturing) methamphetamine in an amount over ten grams, agreed to 

commit that crime; and in furtherance of that agreement, Smith provided Jones 

with lye, cold packs, lithium batteries, and pseudoephedrine, and/or Jones 

manufactured methamphetamine. On August 20, 2014, Dearborn County 

Sheriff’s Department officers obtained and simultaneously executed search 

warrants for Smith’s residence and Jones’s residence. Ex. Vol. at 11-13. At 

Jones’s residence, police found sources and potential sources of 

pseudoephedrine, lithium, sulfuric acid, organic solvents, hydrochloric acid, 

ammonium nitrate, and sodium hydroxide, and items used to manufacture 

methamphetamine including multiple plastic bottles containing white sludge 

and black flakes, multiple coffee filters with white residue, plastic bags with 

white residue, and a bowl containing white powder. Id. Police also found six 

firearms. Id., Tr. Vol. 2 at 36.

[3] On August 22, 2014, the State charged Jones, Chauntel, and Smith with 

committing the following crimes between March 2014 and August 20, 2014: 

Count 1, level 2 felony dealing in (manufacturing) methamphetamine in an 

amount less than ten grams but more than five grams where an enhancing 

circumstance applied; Count 2, level 6 felony maintaining a common nuisance;
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and Count 3, level 2 felony conspiracy to commit dealing in (manufacturing)

methamphetamine, and in furtherance of their agreement Smith provided Jones 

and Chauntel with lye, instant cold packs, lithium batteries, and 

pseudoephedrine, which are precursors used to manufacture 

methamphetamine. Ex. Vol. at 6. Jones was arrested, and at the police station, 

he waived his rights and gave a videotaped statement, in which he admitted 

that he had been manufacturing methamphetamine. Id. at 13. 

[4] Attorney Kevin Moser was retained by family members to represent Jones and 

Chauntel. Tr. Vol. 2 at 6-7. Prior to entering his appearance in their cases, 

Moser spoke separately to Jones and Chauntel, who were being held in the 

detention center following their arrest, to advise them of the “concerns of dual 

representation” and to make sure that his representation of both would not 

create “some kind of irreconcilable conflict.” Id. at 9, 29, 34. Jones and 

Chauntel both consented to his joint representation and signed a written waiver 

of any conflict of interest. Jones’s written waiver is not in the record before us.1

 

Id. at 34. 

[5] The prosecutor offered Jones a plea agreement, pursuant to which Jones would 

agree to plead guilty to Count 3, level 2 felony conspiracy to dealing in 

(manufacturing) methamphetamine, and in exchange the State would dismiss 

the remaining counts and recommend a sentence of thirty years with ten years 

1

 At Jones’s request, the post-conviction court took judicial notice of the court file from the underlying case, 

but Jones did not offer the written conflict-of-interest waiver as a separate exhibit.
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suspended. Ex. Vol. at 16-17. After reviewing the State’s discovery, including 

Jones’s videotaped confession, Moser believed that this was a favorable plea 

agreement for Jones. Tr. Vol. 2 at 10, 24-25. Moser knew that the prosecutor 

viewed Jones as the most culpable of the three defendants and would not offer 

Jones a more lenient agreement. Id. at 19. The prosecutor had told Moser that 

the State would seek consecutive sentences if the case went to trial. Id. at 20. 

In addition, Smith’s counsel had informed Moser that Smith was willing to 

testify against Jones in exchange for a plea deal. Id. at 27. Moser believed that 

Jones would not “do better at trial if he went to trial” and that if he went to 

trial, “he could potentially get more time.” Id. at 24. Moser also knew that 

Jones did not want to testify against his wife and “wanted to protect his wife 

and get it over with.” Id. Neither Jones nor his wife “ever suggested even once 

that they were interested in testifying against the other one. ... [T]hey stayed 

true to each other the entire time.” Id. at 21-22.

[6] On January 21, 2015, Jones pled guilty pursuant to the plea agreement. At the 

guilty plea hearing, the trial court noted that Jones filed a written conflict-ofinterest waiver on October 28, 2014, and that they had previously discussed a 

waiver of conflict in the matter. Ex. Vol. at 26-27. The trial court then asked 

Moser to reiterate the significance of the waiver to Jones, and Moser explained,

As we discussed earlier, and as we’re discussing again today, you 

have the right to independent counsel at all times. That having 

me represent both of you throughout this proceeding could 

present a potential conflict of interest. .... Are you today telling 

the Judge that you waive any potential conflict of interest in this 

case pursuant to the waiver that you filed earlier[?]
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Id. at 27 (repetitions and hyphens omitted). Jones affirmed that he was. Id. 

Jones also testified that he was satisfied with Moser’s representation. Id. at 28. 

The State moved to amend Count 3 to allege that Jones committed conspiracy 

to manufacture methamphetamine in an amount greater than ten grams

between July 1 and August 20, 2014, thereby bringing the dates of the criminal 

conduct under the revised criminal code. Id. at 28-29. Jones had no objection, 

and the trial court granted the State’s motion to amend.

[7] On December 7, 2017, Jones, by counsel, filed a petition for post-conviction 

relief, alleging that his guilty plea counsel provided ineffective assistance by 

representing both him and his wife, which presented counsel with a conflict of 

interest; failing to challenge the State’s amendment to the charging information,

thereby denying Jones the benefit of being sentenced under the allegedly more 

favorable prior version of the criminal code; and allegedly incorrectly advising

him that he could be convicted of both Counts 1 and 3 and receive consecutive 

sentences for the convictions. Appellant’s App. Vol. 2 at 9-11.

[8] On May 14, 2019, the post-conviction court held an evidentiary hearing, at 

which Jones and Moser testified. The parties filed proposed findings of fact and 

conclusions of law. On December 16, 2019, the post-conviction issued an 

order, finding that Jones failed to show by a preponderance of the evidence that 

he received ineffective assistance of counsel and denying Jones’s petition for

post-conviction relief. This appeal ensued.
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Discussion and Decision

[9] Jones appeals the denial of his PCR petition. We observe that “[p]ostconviction proceedings are civil proceedings in which a defendant may present 

limited collateral challenges to a conviction and sentence.” Gibson v. State, 133 

N.E.3d 673, 681 (Ind. 2019) (citing Ind. Post-Conviction Rule 1(1)(b)), petition 

for cert. filed, (July 6, 2020). “The scope of potential relief is limited to issues 

unknown at trial or unavailable on direct appeal.” Id. A defendant who files a 

petition for post-conviction relief, “bears the burden of establishing grounds for 

relief by a preponderance of the evidence.” Ind. Post-Conviction Rule 1(5); 

Humphrey v. State, 73 N.E.3d 677, 681 (Ind. 2017). Because the defendant is 

appealing from the denial of post-conviction relief, he is appealing from a 

negative judgment:

Thus, the defendant must establish that the evidence, as a whole, 

unmistakably and unerringly points to a conclusion contrary to 

the post-conviction court’s decision. 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. We review the post-conviction court’s factual findings for 

clear error, but do not defer to its conclusions of law.

Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013) (citations and quotation 

marks 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).
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[10] Jones maintains that he is entitled to post-conviction relief because he was 

denied the right to effective assistance of counsel guaranteed by the Sixth 

Amendment to the United States Constitution. See Strickland v. Washington, 466 

U.S. 668, 686 (1984) (“[T]he right to counsel is the right to effective assistance 

of counsel.”) (quoting McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970)). 

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

presume “that counsel rendered adequate assistance and made all significant 

decisions in the exercise of reasonable professional judgment.” Weisheit v. State, 

109 N.E.3d 978, 983 (Ind. 2018), cert. denied (2019). A defendant must offer 

strong and convincing evidence to overcome this presumption. Ritchie v. State, 

875 N.E.2d 706, 714 (Ind. 2007). 

[11] We evaluate an ineffective assistance of counsel claim with the two-part test 

articulated in Strickland, 466 U.S. 668. Humphrey, 73 N.E.3d at 682. First, 

“‘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)). Second, the 

defendant must show prejudice. Id. In the context of a guilty plea, the 

prejudice prong of the Strickland test focuses on whether counsel’s deficient 

performance affected the outcome of the plea process. Hill v. Lockhart, 474 U.S. 

52, 59 (1985). To satisfy the prejudice requirement, the petitioner therefore 

must show that there is a reasonable probability that, but for counsel’s errors, he 

would not have pled guilty. Id. “[T]o prove they would have rejected the guilty 
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plea and insisted on trial, defendants must show some special circumstances 

that would have supported that decision. Defendants cannot simply say they 

would have gone to trial, they must establish rational reasons supporting why 

they would have made that decision.” Bobadilla v. State, 117 N.E.3d 1272, 1284 

(Ind. 2019).

Section 1 - Jones has failed to carry his burden to show that 

joint representation resulted in an actual conflict of interest 

that adversely affected counsel’s performance.

[12] Jones first argues that he received ineffective assistance because his guilty plea

counsel had an actual conflict of interest arising from his joint representation of 

Jones and his wife that adversely impacted his representation of Jones. The 

Sixth Amendment right to counsel includes the right to representation by an 

attorney who does not owe conflicting duties to other defendants. Williams v. 

State, 529 N.E.2d 1313, 1315 (Ind. Ct. App. 1988) (citing Holloway v. Arkansas,

435 U.S. 475, 481 (1978)). However, joint representation of codefendants is not 

a per se violation of the constitutional guarantee of effective assistance of 

counsel. Id. (citing Holloway, 435 U.S. at 482). As this Court has previously 

observed, the United States Supreme Court explained the reason for this rule as 

follows:

This principle recognizes that in some cases multiple defendants 

can appropriately be represented by one attorney; indeed, in 

some cases, certain advantages might accrue from joint 

representation. In Mr. Justice Frankfurter’s view: “Joint 

representation is a means of insuring against reciprocal 
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recrimination. A common defense often gives strength against a 

common attack.”

T.C.H. v. State, 714 N.E.2d 1162, 1166 (Ind. Ct. App. 1999) (quoting Holloway, 

435 U.S. at 482-83), trans. denied. “Having the defense speak with a single voice 

may reduce the ability of the prosecution to play the different defendants off 

against each other.” Id. 

[13] On the other hand, joint representation may result in a conflict of interest that 

prevents an attorney from acting in the best interest of one or more of his or her 

clients: 

Joint representation of conflicting interests is suspect because of 

what it tends to prevent the attorney from doing.... [A] conflict 

may ... prevent an attorney from challenging the admission of 

evidence prejudicial to one client but perhaps favorable to 

another, or from arguing at the sentencing hearing the relative 

involvement and culpability of his clients in order to minimize 

the culpability of one by emphasizing that of another.

Wheat v. United States, 486 U.S. 153, 160 (1988) (quoting Holloway, 435 U.S. at 

489-90). Such a conflict of interest may serve as a basis for an ineffective 

assistance claim. To establish ineffective assistance based on a conflict of 

interest arising from joint representation, a defendant who did not raise an 

objection to joint representation “at trial must demonstrate that an actual 

conflict of interest adversely affected his lawyer’s performance.” Latta v. State, 

743 N.E.2d 1121, 1127 (Ind. 2001) (quoting Cuyler v. Sullivan, 446 U.S. 335, 

348-49 (1980)). “[O]nce the defendant has demonstrated an actual conflict and 
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an adverse effect on his lawyer’s performance, the prejudice prong of an 

ineffective assistance claim is presumed.2

 Id. (citing Strickland, 466 U.S. at 692).

[14] Although in some cases joint representation may involve a potential for a 

conflict of interest, the Sixth Amendment’s right to effective counsel also

encompasses the right to be represented by counsel of one’s choice. Id. (citing 

Powell v. Alabama, 287 U.S. 45, 53 (1932)). 

The right to counsel of choice has been described as an “essential 

component” of the Sixth Amendment right to counsel.... The 

right privately to retain counsel of choice derives from a 

defendant’s right to determine the type of defense he wishes to 

present. Lawyers are not fungible, and often the most important 

decision a defendant makes in shaping his defense is the selection 

of an attorney. In situations where a defendant is able to retain 

counsel privately “the choice of counsel rests in his hands, not in 

the hands of the state.”

T.C.H., 714 N.E.2d at 1165-66 (quoting Barham v. State, 641 N.E.2d 79, 82 (Ind.

Ct. App. 1994)). Thus, under some circumstances, a defendant may properly 

waive his or her right to be represented by counsel who is free from conflicting 

interests. Latta, 743 N.E.2d at 1127 (citing Ward v. State, 447 N.E.2d 1169, 

1172 (Ind. Ct. App. 1983)).

2 Although counsel may be subject to a conflict of interest from reasons other than joint representation, in 

Johnson v. State, 948 N.E.2d 331 (Ind. 2011), the Indiana Supreme Court observed that the special rules 

applying to conflict of interest have been applied by the U.S. Supreme Court only “where counsel is 

conflicted because he or she is actively representing multiple parties with conflicting interests.” Id. at 334-35.
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[15] Here, before Moser filed his appearances for Jones and his wife, Jones signed a 

written conflict-of-interest waiver, which he reaffirmed when he pled guilty.

The State argues that because Jones waived any potential conflict of interest

arising from Moser’s joint representation, Jones is precluded from raising an 

ineffective assistance of counsel claim based on a conflict of interest. The issue 

is not as settled as the State suggests, as shown by our supreme court’s 

examination of the issue in Latta, 743 N.E.2d 1121.

[16] In that case, Latta and her husband were charged with the murder of their twoyear-old son. She and her husband were tried jointly and were represented by 

the same counsel, whom they had retained. “Midway through the joint trial, 

the State moved for a mistrial, arguing, among other things, that the testimony 

of a trooper had given rise to a conflict of interest.” Id. at 1128. Latta’s 

attorney told the trial court that it was the Lattas’ choice for him to represent 

them. The trial court asked the Lattas whether their attorney had discussed the 

risks that could be involved in joint representation and whether they wanted 

him to represent both of them. Id. They answered affirmatively to both

questions, and the trial court denied the State’s motion for mistrial. Id. 

[17] Latta was convicted and later petitioned for post-conviction relief on the ground 

she was denied effective assistance of counsel. One of her ineffective assistance 

claims was that the joint representation at trial created an actual conflict that 

adversely affected her defense. Although our supreme court did not decide the 

merits of Latta’s conflict-of-interest claim because it found her trial counsel 

ineffective on other grounds, the court opted to discuss the issue at length to 
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provide guidance in future cases. As to the effect of Latta’s waiver of her trial 

attorney’s conflict of interest, our supreme court explained, 

Even if we were to conclude that Latta’s waiver of [her trial 

attorney’s] conflict was knowing and voluntary, the issue remains 

whether her initial waiver may serve to waive all future conflicts 

and any ineffective assistance of counsel claim based on these 

conflicts. Justice Marshall, concurring and dissenting in Cuyler, 

thought it impossible to waive all potential conflicts, especially 

where a waiver is obtained in the early stages of trial before it is 

feasible to contemplate all of the possible conflicts. 446 U.S. at 

354 n.1, 100 S. Ct. 1708. But the United States Supreme Court 

has given us no further clear guidance on this point.... Wheat also 

cited the “institutional interest” in a fair proceeding. Arguably 

the proper inference from Wheat is that this institutional interest 

justifies overriding the defendant’s choice of joint counsel but still 

permits a waiver to preclude a later claim of ineffective 

assistance. Wheat itself expressly reserved this issue for another 

day, as it noted, “without passing judgment on, the apparent 

willingness of Courts of Appeals to entertain ineffectiveassistance claims from defendants who have specifically waived 

the right to conflict-free counsel.” 486 U.S. at 161-62, 108 S. Ct. 

1692.

The post-Wheat federal circuit decisions have split on the 

question of whether a waiver eliminates further claims based on 

conflict. Compare United States v. Hall, 200 F.3d 962, 965-67 (6th 

Cir. 2000) (reversing conviction on direct appeal because of 

ineffective assistance of counsel due to conflict of interest even 

though the trial court had repeatedly warned defendant of 

conflict, and stating that the defendant’s waiver “does not bind 

the courts”), and United States v. Swartz, 975 F.2d 1042, 1049 (4th 

Cir. 1992) (a waiver obtained pursuant to Federal Rule of 

Criminal Procedure 44(c), which places a duty on the trial court 

to inform defendant of potential conflicts where defendant is 
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jointly represented, “may not serve to waive all conflicts of 

interest that arise throughout the course of that defendant’s 

criminal proceedings”), with United States v. Lowry, 971 F.2d 55, 

63-64 (7th Cir. 1992) (any ineffective assistance claim based on 

conflict of interest is barred where defendant knowingly and 

voluntarily waives conflict).

Id. at 1129.

[18] The Latta court then considered the issue confronting the trial court at Latta’s 

trial, noting that in Wheat, the United States Supreme Court held that the trial 

court should be given wide discretion in determining whether to accept or reject 

a waiver.3

 Id. at 1130 (citing 486 U.S. at 164). The Latta court agreed, 

indicating that “in evaluating whether the actual conflict or serious potential for 

conflict is sufficient to override the defendant’s express choice of counsel[,]” a 

trial court should make the necessary inquiry to assess “the defendant’s 

apprehension of the dangers of joint representation.” Id. The supreme court 

explained that “regardless of the ultimate resolution of the issue left open in 

Wheat, ... the presumption of deference to the defendant’s choice is 

3 One of the reasons that the trial court should be given wide discretion is the court’s institutional interest in 

fair trials. As we explained in T.C.H., 

The [Wheat] Court noted that not only the interest of a criminal defendant but also the 

institutional interest in the rendition of just verdicts in criminal cases may be jeopardized by 

unregulated multiple representation. [486 U.S. at 160]. The [Wheat] Court further stated that 

the trial courts, when alerted by objection from one of the parties, have an independent duty to 

ensure that criminal defendants receive a trial that is fair and does not contravene the Sixth 

Amendment. Id. at 161. “Thus, where a court justifiably finds an actual conflict of interest, 

there can be no doubt that it may decline a proffer of waiver, and insist that defendants be 

separately represented.” Id. at 162. 

714 N.E.2d at 1164-65 (parallel citations omitted).
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strengthened by confidence that it is an informed and individual choice by the 

defendant.” Id. 

[19] As for the post-conviction court’s task, the Latta court stated: 

The first issue for the post-conviction court was whether, under 

these circumstances, it was within the trial court’s discretion to 

accept Latta’s waiver of conflict-free representation. We think 

the defendant’s waiver should be presumed valid, and the burden 

in post-conviction proceedings is on the defendant to prove 

otherwise. If there is evidence supporting the conclusion of an 

uninformed, or worse, improperly influenced waiver, the postconviction court must assess the defendant’s appreciation of the 

risks. If knowing and voluntary, the waiver is at least entitled to 

a very strong presumption of validity, and may be conclusive, 

because it invokes her right to counsel of her choice. If the 

waiver does not preclude a subsequent claim of ineffective 

assistance, there remains the issue, as Cuyler put it, of whether 

“an actual conflict of interest adversely affected [the] lawyer’s 

performance.” Cuyler, 446 U.S. at 348-49, 100 S. Ct. 1708. If so, 

prejudice under Strickland is presumed.

Id. at 1131.

[20] Latta makes clear that in post-conviction proceedings, there is a presumption 

that a defendant’s waiver of conflict-free representation is valid, and the 

defendant bears the burden of rebutting that presumption. Here, at Jones’s 

post-conviction hearing, Moser testified that he explained the pitfalls of joint 
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representation to Jones.

4 The transcript of Jones’s guilty plea hearing shows 

that Jones affirmed to the trial court that he had been informed that joint 

representation could present a “potential” conflict of interest, that he was 

waiving any “potential” conflict of interest pursuant to the waiver he had 

signed earlier, and that he was satisfied with Moser’s representation. Ex. Vol. at 

27. 

[21] Assuming, without deciding, that Jones’s conflict-of-interest waiver was valid,

the issue remains whether that waiver bars Jones from challenging his 

conviction based on an actual conflict of interest that he alleges existed during 

discovery and plea negotiations. We observe that Latta was decided in 2001, 

and the United States Supreme Court has not spoken further on whether a

defendant’s waiver of conflict-free representation precludes all future claims of 

ineffective assistance based on a conflict of interest. The federal cases cited by 

the State supporting its contention that a defendant’s knowing and intelligent 

waiver of the right to conflict-free representation bars any subsequent challenge 

to his or her conviction based on a conflict of interest were all decided before 

Latta.

5

 There have not been any Indiana cases decided since Latta that have 

explored the waiver issue any further. 

4

 Jones notes that he testified at the post-conviction hearing that he did not receive any explanation of the 

pitfalls of dual representation, but the post-conviction court was not required to credit his testimony. Jones’s

argument is merely a request to reweigh the evidence, which we must decline. 

5 The State cites Lowry, 971 F.2d at 60, Gomez v. Ahitow, 29 F.3d 1128, 1135-36 (7th Cir. 1994), United States 

v. Martinez, 143 F.3d 1266, 1268-69 (9th Cir. 1998), Henderson v. Smith, 903 F.2d 534, 536 (8th Cir. 1990), and

Duncan v. Alabama, 881 F.2d 1013, 1017 n.5 (11th Cir. 1989). The State also cites three cases from our sister 
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[22] We are disinclined to issue a blanket holding that a conflict-of-interest waiver 

precludes all future claims of ineffective assistance based on an actual conflict of 

interest. Such an absolute bar seems ill-advised given the myriad of situations 

that joint representation could create a conflict of interest and the various 

circumstances under which a defendant might waive a conflict of interest. For 

example, Latta and this case present two very different situations. In Latta, the 

prosecutor moved for mistrial, arguing that the testimony of a witness created a 

conflict of interest. Latta was present to hear the testimony of the witness and 

the argument of the prosecutor. The trial court itself was aware of the precise 

conflict of interest and was able to question Latta about her wishes in light of 

the new development.

6

 Here, Jones waived the potential for a conflict of 

interest at the onset of his criminal proceedings, and his case never went to trial 

because he pled guilty pursuant to a plea agreement. Although the trial court 

states but fails to articulate why we should follow them. See Dunlap v. People, 173 P.3d 1054, 1070 (Colo. 

2007) (“A defendant who validly waives the right to conflict-free counsel cannot later make a claim of 

ineffective assistance due to a conflict of interest.”); Ryan v. Eighth Judicial Dist. Ct., 168 P.3d 703, 710 (Nev. 

2007); State v. Demmerly, 722 N.W.2d 585, 590 (Wisc. Ct. App. 2006) (holding that when a defendant waives 

the right to conflict-free counsel, he “necessarily” waives the right to assert that his counsel was ineffective 

due to the alleged conflict except in rare, egregious circumstances).

6

 We also note the protection afforded defendants in the federal criminal rules, for which there is no Indiana 

counterpart. Federal Rule of Criminal Procedure 44(c) provides, 

The court must promptly inquire about the propriety of joint representation and must personally 

advise each defendant of the right to effective assistance of counsel, including separate 

representation. Unless there is good cause to believe that no conflict of interest is likely to arise, 

the court must take appropriate measures to protect each defendant’s right to counsel. 

The trial court’s compliance with this rule bolsters an appellate court’s confidence that a defendant’s waiver 

of a conflict of interest is valid. For example, in Lowry, 971 F.2d 55, one of the cases cited by the State, the 

Seventh Circuit Court of Appeals noted that the defendant had waived two prior conflicts of interest at two 

prior hearings; there had been full compliance with Rule 44(c); the defendant clearly understood the dangers 

of counsel with a conflict, his rights, and his options; and he made a knowing and intelligent waiver; and 

therefore the defendant had forfeited any claim on that conflict of interest ground. Id. at 63-64. 
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asked him to affirm his waiver at his guilty plea hearing, the trial court would 

not have been aware of any conflict of interest to the extent that the trial court 

in Latta was. Thus, notwithstanding Jones’s waiver of any potential conflict of 

interest, we opt to examine Jones’s claim under the Cuyler standard, that is, 

whether due to his joint representation, his attorney was presented with an 

actual conflict of interest that adversely affected his performance.

7

[23] Jones asserts that the “actual conflict in this case arises from Moser’s 

representation of both [himself] and [his wife] on very serious charges arising 

from the same facts.” Appellant’s Br. at 15. However, as Jones himself 

acknowledges, “not every case of dual ... representation creates a conflict of 

interest.” Id. (quoting Holleman v. State, 641 N.E.2d 638, 640 (Ind. Ct. App. 

1994), trans. denied). Jones’s overbroad assertion begs the question of what 

specific aspect(s) of this case introduced a conflict of interest into Moser’s joint 

representation. For example, a codefendant’s desire to testify against another 

codefendant would create a conflict of interest. Cf. T.C.H., 714 N.E.2d at 1167

(concluding there was no actual conflict where none of the codefendants 

conveyed any desire to testify against the other codefendants in exchange for 

dismissal or reduction of charges). Here, the evidence shows that neither Jones 

nor Chauntel ever expressed any willingness to testify against each other. Tr. 

Vol. 2 at 21-22. In fact, it seems that they wanted to present a united front. Id. 

7

 The post-conviction court did not make any findings on this issue.
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Further, it was Jones’s express wish to protect Chauntel and do what was best 

for her. Id. at 22, 28. Jones contends that Moser’s loyalty to Chauntel

prevented Moser from arguing to the prosecutor that Jones did not have more 

culpability than his wife, but that would have been contrary to Jones’s express 

wishes. 

[24] Jones also contends that Moser’s loyalty to Chauntel kept him from challenging

the validity of the search warrant.

8 Given that Jones and Chauntel were 

married and lived together in the house targeted by the warrant, we fail to see 

how any challenge to the search warrant would have impacted their interests 

differently. Thus, any decision not to challenge the search warrant does not 

appear related to a conflict of interest. Rather, it appears that the decision was 

based on Moser’s knowledge that the prosecutor would not extend favorable

plea offers once pretrial litigation commenced. Id. at 17. Accordingly, we 

conclude that Jones has failed to carry his burden to show that Moser’s joint 

representation was burdened by an actual conflict of interest that adversely 

affected his performance. Jones’s claim of ineffective assistance on this basis 

must fail.

8 We reject Jones unsupported assertion that if Moser “used even basic discovery tools like a deposition, the 

prosecutor would have withdrawn his offer to Chauntel.” Appellant’s Br. at 15.
Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020 Page 19 of 23

Section 2 – Jones has failed to carry his burden to show or 

waived his claims that his attorney provided ineffective 

assistance by advising him to plead guilty.

[25] Jones next contends that Moser provided ineffective assistance by advising him 

to plead guilty to level 2 felony conspiracy to commit dealing in 

methamphetamine under the version of Indiana Code Section 35-48-4-1.1 that 

became effective July 1, 2014 (new version). Jones argues that he was entitled 

to be charged under the prior version of Section 35-48-4-1.1 that was in effect 

until June 30, 2014 (prior version). As initially charged, Jones was alleged to 

have committed his offenses between March 2014 and August 20, 2014, which 

included but was not limited to a time period when the prior version of the 

statute was in effect. Under the new version, dealing in methamphetamine is a 

level 2 felony if the amount involved was at least ten grams or at least five 

grams but less than ten grams and an enhancing circumstance applied. Under 

the prior version, dealing in methamphetamine was a class B felony and was 

elevated to a class A felony if the amount of the drug involved weighed three 

grams or more. Jones contends that he would have received a lighter sentence

under the prior version.

[26] Jones ignores that the dates alleged in the original charging information also 

included a time period when the new version was in effect. The amended 

charging information alleged that his criminal conduct was committed between 

July 1 and August 20, 2014. Jones was not entitled to be charged and 

sentenced under the prior version for criminal conduct that he engaged in after 
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July 1, 2014. Furthermore, Jones’s argument that he would have received a 

lighter sentence under the prior version is without merit because it assumes that 

the State would have charged him with a class B felony. There is no support for 

that assumption. The prior version provided that dealing in methamphetamine 

in an amount greater than three grams was a class A felony, and he was 

originally charged with dealing more than that. If Jones had been charged with 

a class A felony, he would have faced a sentence of up to fifty years, as opposed 

to thirty years for the level 2 felony. Compare Ind. Code § 35-50-2-4 (2013)

(providing sentencing range of twenty to fifty years for a class A felony) with

Ind. Code § 35-50-2-4.5 (providing sentencing range of ten to thirty years for a 

level 2 felony).

[27] Jones also maintains that Moser provided ineffective assistance by advising him 

to plead guilty to level 2 felony conspiracy to commit dealing in 

methamphetamine in an amount greater than ten grams because there was 

insufficient evidence of weight. However, the post-conviction court found that 

“Jones has not contested whether the State could prove that the agreement was 

to produce methamphetamine in an amount greater than ten grams.” Appealed 

Order at 4. Post-conviction claims that were not presented to the postconviction court are not available for appellate review. Walker v. State, 843 

N.E.2d 50, 57 (Ind. Ct. App. 2006), trans. denied; see also Richardson v. State, 800 

N.E.2d 639, 647 n.4 (Ind. Ct. App. 2003) (holding that petitioner waived claim 

because it was not presented to post-conviction court), trans. denied (2004). 
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Therefore, Jones has waived his claim that there was insufficient evidence of 

the weight of the methamphetamine.

[28] Last, in a two-sentence paragraph, Jones argues that Moser told him that the 

prosecutor was threatening consecutive sentences if Jones did not accept the 

plea agreement. Jones asserts, “It was not possible for the trial court to impose 

consecutive sentences because Counts 1 and 3 were alternative theories of the 

same offense.” Appellant’s Br. at 19. Because Jones has not supported this 

argument with cogent reasoning and citations to authorities, this argument is 

waived. See Ind. Appellate Rule 46(A)(8)(a) (requiring that contentions in 

appellant’s brief be supported by cogent reasoning and citations to authorities, 

statutes, and the appendix or parts of the record on appeal); Casady v. State, 934 

N.E.2d 1181, 1190 (Ind. Ct. App. 2010) (concluding that defendant waived 

claim that trial court improperly admitted evidence by failing to cite rules of 

evidence and case law), trans. denied (2011). 

[29] Waiver notwithstanding, Jones’s argument is meritless. Count 1 alleged the 

offense of dealing in methamphetamine, and Count 3 alleged the offense of 

conspiracy to commit dealing in methamphetamine. In his reply brief, Jones 

argues that the “Indiana Double Jeopardy Clause prohibits a court from 

entering multiple convictions when there is a reasonable probability the actual 

evidence used to establish the essential elements of one offense were used for an 

additional challenged offense.” Appellant’s Reply Br. at 7-8 (citing Richardson 

v. State, 717 N.E.2d 32, 53 (Ind. 1999). He asserts that the allegations in both 
Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020 Page 22 of 23

counts involved manufacturing methamphetamine over identical date ranges, 

and that a conviction could not have been entered for both counts.

[30] As clearly explained in Coleman v. State, 952 N.E.2d 377 (Ind. Ct. App. 2011), 

[T]he conspiracy statute, Indiana Code Section 35-41-5-2, ...

contains elements that must be proven in a conspiracy case, and 

not in a case for the underlying offense: an agreement with 

another person with intent to commit a felony, and the 

commission of an overt act in furtherance of the agreement. .... 

Double jeopardy rules preclude a conviction for conspiracy and 

the underlying offense only when the same evidence is used to 

prove both the overt act committed in furtherance of the 

conspiracy and the commission of the underlying crime. 

Otherwise, a defendant may be convicted of both offenses.

Id. at 382 (citations omitted). Here, the State alleged that the overt act 

committed in furtherance of the conspiracy to commit dealing in

methamphetamine was that Smith provided Jones and his wife with lye, cold packs, 

lithium batteries, and pseudoephedrine and/or that Jones manufactured 

methamphetamine. Thus, to convict Jones of the conspiracy offense, the State 

could have relied on an overt act that was not the commission of the underlying 

offense, in which case Jones’s convictions for both counts would not have 

violated the prohibition against double jeopardy. Other than double jeopardy, 

Jones does not allude to any other ground that would preclude the imposition 

of consecutive sentences. Accordingly, we conclude that Jones has failed to 

carry his burden to show that Moser provided ineffective assistance by advising 
Court of Appeals of Indiana | Opinion 19A-PC-3051 | July 31, 2020 Page 23 of 23

Jones that he could be convicted of both counts and sentenced to consecutive 

terms.

Section 3 – Jones has waived his argument that his counsel 

provided ineffective assistance by failing to file a motion to 

suppress the search warrant.

[31] Jones also asserts that his counsel provided ineffective assistance by failing to 

file a motion to suppress the search warrant. The post-conviction court found 

that Jones did not allege a claim of ineffective assistance for failing to file a 

motion to suppress in his PCR petition and that he never amended his petition. 

Appealed Order at 2-3. Jones does not challenge these findings or even 

acknowledge that he did not raise this allegation in his PCR petition. We 

conclude that the issue is waived. See Ind. Post-Conviction Rule 1(8) (“All 

grounds for relief available to a petitioner under this rule must be raised in his 

original petition.”); Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001) (“Issues 

not raised in the petition for post-conviction relief may not be raised for the first 

time on post-conviction appeal.”). 

[32] Based on the foregoing, we affirm the denial of Jones’s petition for postconviction relief.

[33] Affirmed. 

Robb, J., and Brown, J., concur.