Court of Appeals of Indiana | Opinion 32A01-1603-PC-592 | December 1, 2016 Page 1 of 16

ATTORNEYS FOR APPELLANT

Jeffrey A. Baldwin

Tyler D. Helmond

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Jesse R. Drum

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Corey Middleton,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 1, 2016

Court of Appeals Case No.

32A01-1603-PC-592

Appeal from the Hendricks 

Superior Court

The Honorable Rhett Stuard, 

Judge

Trial Court Cause No.

32D02-1502-PC-3

Altice, Judge.

Case Summary

[1] Corey Middleton appeals from the denial of his petition for post-conviction 

relief. He asserts that the post-conviction court erred in rejecting his claim of 

ineffective assistance of trial counsel.
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[2] We affirm.

Facts & Procedural History

[3] On December 1, 4, and 5, 2000, undercover officers met Middleton in a van in 

a Kroger parking lot in Brownsburg and purchased cocaine and ecstasy from 

him. On the third day, Middleton showed the officers his “baby,” a silver .380 

caliber handgun that he pulled from his waistband. Middleton v. State, No. 

32A04-0308-CR-412, slip op. at 3 (Ind. Ct. App. June 29, 2004). Middleton told 

the officers that the handgun might be for sale later. The officers left the van 

and signaled to other officers to move in. After Middleton was arrested, officers 

found the handgun under the seat where Middleton had been sitting. 

[4] On December 6, 2000, Middleton was charged with Class A felony dealing in 

cocaine, two counts of Class B felony dealing in a controlled substance, four 

counts of drug possession, and possession of a firearm by a serious violent felon 

(SVF). Middleton initially requested that counsel be appointed, but a month 

later, he retained his own attorney, Robert Williams. During the last pre-trial 

conference on May 2, 2001, Middleton sought to have Williams replaced. 

Later, during the same pre-trial hearing, Williams requested to withdraw as 

Middleton’s attorney, citing lack of payment by Middleton. Given that there 

were only three weeks until the scheduled trial date, the trial court denied both 

requests. 

[5] On May 23, 2001, Middleton failed to appear for his jury trial and was tried in 

absentia. At the start of the trial, Williams informed the court that he had paged 
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and called Middleton the night before but did not talk to him. Williams also 

explained:

[Middleton] was aware this was the final trial date. . . . And he 

was advised this was a first choice jury trial and the Court denied 

my motion to withdraw so I talked to him later that day or the 

following day with the new plea offer from the State. He refused 

it and I said that was the last day. If he didn’t accept that we’d be 

going to trial on the 23rd. I’ve had no further contact with him, 

Your Honor.

Petitioner’s Exhibit 1, Transcript at 52-53.1 The jury trial proceeded.

[6] During voir dire, Williams posed the following question to prospective jurors:

I’d ask you, all of you the one question and that is Corey 

Middleton happens to be a Negro, an African American or Black 

whatever term is politically correct these days, so I need to ask all 

of you and remember you’re under oath and please don’t take 

that as an affront. I don’t mean it as an affront. But I still think 

in this country there are some racial problems. So my job is to 

make sure first of all if Corey Middleton, the black man, was 

sitting there, would any of you have any problems forgetting he’s 

black or forgetting he’s white or Indian or Chinese or whatever[?] 

Does race make any difference to you in these proceedings 

because if it does we need to know that right now[?]

Id. at 92. After a jury was selected, the State presented its evidence. To prove 

Middleton was an SVF, the State offered into evidence a certified copy of 

 

1 Additional comments by Williams indicate that he last spoke with Middleton the day of or the day after the 

final pre-trial conference that was held on May 2, 2001.
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Middleton’s Michigan criminal history that showed he had a prior felony 

conviction for possession with intent to deliver cocaine (under thirty grams). 

Williams objected, arguing that Middleton was not there to confirm or dispute 

its accuracy. The trial court overruled the objection. At the conclusion of the 

evidence, the jury found Middleton guilty as charged. The trial court merged 

several of the drug offenses due to double jeopardy concerns.

[7] In 2002, Middleton was located in Atlanta, Georgia. Middleton was arrested 

and returned to Indiana. On May 27, 2003, the trial court sentenced him to an 

aggregate forty-year term in the Department of Correction.2 Middleton was 

appointed counsel to pursue a direct appeal. This court affirmed Middleton’s 

SVF conviction, but ordered that the drug possession charges be vacated rather 

than simply merged. See Middleton, slip op. at 130. 

[8] On February 9, 2015, Middleton filed the instant petition for post-conviction 

relief (PCR),3in which he challenged his trial counsel’s performance. 

Specifically, Middleton alleged that his trial counsel was ineffective for (1) 

failing to adequately investigate,4(2) failing to move to bifurcate the SVF 

offense from the drug offenses; (3) referring to him as a “Negro” during voir 

dire; (4) failing to object to the admission of evidence concerning a prior drug 

 

2 Middleton was represented at the sentencing hearing by court-appointed counsel.

3 Middleton filed his first PCR petition, pro se, on November 1, 2004. In his petition he alleged ineffective 

assistance of both his trial and appellate counsel. He was eventually appointed a public defender. The 

action, however, was dismissed in 2007 for “lack of action.” Transcript at 32.

4 On appeal, Middleton does not advance any argument concerning failure to investigate.
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dealing conviction, and (5) failing to communicate to him a plea offer.

5

 The 

post-conviction court held a hearing on November 20, 2015. Middleton did not 

call Williams to testify. On February 22, 2016, the post-conviction court 

entered its findings of fact and conclusions of law denying Middleton’s PCR 

petition. Middleton now appeals. Additional facts will be provided as 

necessary.

Discussion & Decision

[9] In a post-conviction proceeding, the petitioner bears the burden of establishing 

grounds for relief by a preponderance of the evidence. Bethea v. State, 983 

N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction 

relief, the petitioner stands in the position of one appealing from a negative 

judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In 

order to prevail, the petitioner must demonstrate that the evidence as a whole 

leads unerringly and unmistakably to a conclusion opposite the post-conviction 

court’s conclusion. Id. Although we do not defer to a post-conviction court’s 

legal conclusions, we will reverse its findings and judgment only upon a 

showing of clear error, i.e., “that which leaves us with a definite and firm 

conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729 

N.E.2d 102, 106 (Ind. 2000)).

 

5

In 2002 Williams was disbarred for serial neglect of several of his clients’ legal affairs and for refusing to 

meaningfully participate in the Disciplinary Commission’s prosecution. See In re Williams, 764 N.E.2d 613 

(Ind. 2002). 
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[10] A petitioner will prevail on a claim of ineffective assistance of counsel only 

upon a showing that counsel’s performance fell below an objective standard of 

reasonableness and that the deficient performance prejudiced the petitioner. 

Bethea, 983 N.E.2d at 1138. To satisfy the first element, the petitioner must 

demonstrate deficient performance, which is “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)). 

[11] To satisfy the second element, the petitioner must show prejudice, which is “a 

reasonable probability that, but for counsel’s errors, the result of the proceeding 

would have been different.” Id. at 1139. “A reasonable probability is one that 

is sufficient to undermine confidence in the outcome.” Kubsch v. State, 934 

N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington, 466 U.S. 668, 

694 (1984)). Because a petitioner must prove both deficient performance and 

prejudice in order to prevail on a claim of ineffective assistance of counsel, the 

failure to prove either element defeats such a claim. See Young v. State, 746 

N.E.2d 920, 927 (Ind. 2001). 

[12] There is a strong presumption that counsel rendered adequate service. Bethea, 

983 N.E.2d at 1139. “We afford counsel considerable discretion in choosing 

strategy and tactics, and ‘[i]solated mistakes, poor strategy, inexperience, and 

instances of bad judgment do not necessarily render representation ineffective.’” 

State v. Hollin, 970 N.E.2d 147, 151 (Ind. 2012) (quoting Timberlake v. State, 753 

N.E.2d 591, 603 (Ind. 2001)). 
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Communication of Plea Offer

[13] The Sixth Amendment right to the effective assistance of counsel extends to 

plea negotiations. Missouri v. Frye, 132 S.Ct. 1399, 1405 (2012). As the U.S. 

Supreme Court recognized, 

[t]he reality is that plea bargains have become so central to the 

administration of the criminal justice system that defense counsel 

have responsibilities in the plea bargain process, responsibilities 

that must be met to render the adequate assistance of counsel that 

the Sixth Amendment requires in the criminal process at critical 

stages.

Id. at 1407. With this reality in mind, the Supreme Court thus held that, as a 

general rule, “defense counsel has the duty to communicate formal offers from 

the prosecution to accept a plea on terms and conditions that may be favorable 

to the accused.” Id. at 1408; see also Woods v. State, 48 N.E.3d 374, 381 (Ind. Ct. 

App. 2015). 

[14] Counsel’s effectiveness at the plea stage is reviewed under the two-part test set 

out in Strickland. It has been held that failure to communicate a plea agreement 

and its terms and conditions constitutes deficient performance. See Frye, 132 

S.Ct. at 1408; Woods, 48 N.E.3d at 381. As held by this court in Dew v. State, 

843 N.E.2d 556, 571 (Ind. Ct. App. 2006), trans. denied, prejudice is established 

when there is a reasonable probability that the petitioner would have accepted 

the plea offer that was not communicated to him by defense counsel. As more 

recently stated in Frye, the petitioner must establish that he would have 

accepted the plea if it had been communicated, that the prosecution would have 
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adhered to the plea, and that the trial court would have accepted the plea. 132 

S.Ct. at 1411. 

[15] Here, Middleton claims that Williams failed to communicate to him a plea 

agreement that called for Middleton to plead guilty to one count of Class A 

felony dealing in cocaine greater than three grams with the remaining counts to 

be dismissed and for sentencing to be left to the trial court’s discretion. 

Middleton further claims that he would have accepted the plea agreement had it 

been communicated to him.

[16] The evidence before the post-conviction court was that Williams appeared at 

Middleton’s jury trial and Middleton did not, having apparently already fled to 

Georgia. In explaining Middleton’s absence, Williams stated:

[Middleton] was aware this was the final trial date. He was at 

the Pre-Trial last time we were here [i.e., May 2, 2001]. . . . And 

he was advised this was a first choice jury trial and the Court 

denied my motion to withdraw so I talked to him later that day or 

the following day with the new plea offer from the State. He refused it 

and I said that was the last day. If he didn’t accept that we’d be 

going to trial on the 23rd. I’ve had no further contact with him, 

Your Honor.

Transcript at 52-53 (emphasis supplied). As noted by the post-conviction court: 

“Middleton had an opportunity to dispute his attorney’s statement to the Court; 

but he waived it by failing to attend his own jury trial.” Appellant’s Appendix at 

60. Likewise, Middleton did not present any evidence at the PCR hearing aside 

from his own self-serving testimony that would lead to a contrary finding. 
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[17] Further, Middleton did not call Williams to testify. It is well established that 

when counsel is not called as a witness to testify in support of a petitioner’s 

arguments, the post-conviction court may infer that counsel would not have 

corroborated the petitioner’s allegations.6 Oberst v. State, 935 N.E.2d 1250, 1254 

(Ind. Ct. App. 2010), trans. denied. The post-conviction court made such an 

inference here and we cannot say that it was error to do so. Thus, Middleton 

did not satisfy his burden of showing his counsel rendered deficient 

performance by failing to communicate a plea offer.

Bifurcation

[18] Relying on Pace v. State, 981 N.E.2d 1253 (Ind. Ct. App. 2013), Middleton 

argues that Williams was ineffective for failing to file a motion to bifurcate the 

SVF offense from the drug offenses. The decision regarding whether to file a 

particular motion is a matter of trial strategy. Moore v. State, 872 N.E.2d 617, 

620 (Ind. Ct. App. 2007), trans. denied. “‘To prevail on an ineffective assistance 

of counsel claim based upon counsel’s failure to file motions on a defendant’s 

behalf, the defendant must demonstrate that such motions would have been 

 

6

 Citing Schmittler v. State, 93 N.E.2d 184, 191 (Ind. 1950), overruled in part on other grounds by State v. Lindsey, 

106 N.E.2d 230, 233 (Ind. 1952), Middleton asserts that this presumption applies only in instances where the 

petitioner “did not produce or at least make an effort to produce the testimony of the witness.” Middleton 

then points to his evidence that Williams had been disbarred over thirteen years prior to the post-conviction 

hearing and that Williams did not respond to Middleton’s request to retrieve his file. Middleton’s evidence, 

however, does not establish that he made any effort to secure Williams’s testimony at the post-conviction 

hearing. Thus, the post-conviction court was left with Middleton’s claim that he was not advised of the plea 

agreement and Williams’s direct statement made at the time of trial to the contrary. Under these 

circumstances, Schmittler does not persuade us that the post-conviction court erred in inferring that Williams 

would not have corroborated Middleton’s claim. 
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successful.’” Id. at 621 (quoting Wales v. State, 768 N.E.2d 513, 523 (Ind. Ct.

App. 2002), clarified on reh’g, 774 N.E.2d 116 (Ind. Ct. App. 2002), trans. denied).

[19] We do not find the decision in Pace to be dispositive of the outcome in this case. 

In Pace, the court held that petitioner’s trial counsel was ineffective for failing to 

move to bifurcate the trial of a dealing in amphetamine charge and a charge of 

unlawful possession of a firearm by an SVF where his status as an SVF was 

based on a prior conviction for dealing in cocaine. However, the key 

component of the Pace court’s analysis was that the petitioner’s trial counsel 

should have been aware of the Supreme Court’s decision in Hines v. State, 801 

N.E.2d 634 (Ind. 2004), which was decided over nine months prior to 

petitioner’s jury trial. In Hines, the Supreme Court held that “it was error to 

refuse a defendant’s request to bifurcate a trial where there is an SVF charge 

and another unrelated felony.” The Pace court thus found that trial counsel’s 

decision not to request bifurcation was not a reasonable strategic decision in 

light of Hines and that under the circumstances, a motion to bifurcate would 

have been granted. 

[20] Here, like in Hines and Pace, Middleton was charged with an SVF offense and 

separate felony offenses. The State established Middleton’s SVF status by 

offering into evidence a certified copy of Middleton’s criminal history in 

Michigan that showed he had prior felony conviction for possession with intent 

to deliver cocaine (under thirty grams). Middleton would have us hold that in 

light of the holding in Hines, trial counsel’s failure to bifurcate amounted to 

ineffective assistance. The Hines case, however, was not decided until several 
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years after Middleton’s trial. It is well settled that “[f]or purposes of ineffective 

assistance of counsel claims, the law requires consideration of legal precedent 

available to counsel at the time of his representation of the accused, and counsel 

will not be deemed ineffective for not anticipating or initiating changes in the 

law.” Woodson v. State, 961 N.E.2d 1035, 1044 (Ind. Ct. App. 2012) (quoting 

Sweeney v. State, 886 N.E.2d 1, 8 (Ind. Ct. App. 2008), trans. denied), trans. 

denied. Having been decided well after Middleton’s trial, the decisions in Pace

and Hines are not controlling.

[21] In light of his reliance on Pace, Middleton has not established his counsel 

rendered deficient performance. Middleton also has not established prejudice. 

Indeed, we note there was direct evidence from undercover police officers that 

Middleton was in possession of and dealing cocaine on multiple occasions. As 

already acknowledged by this court on direct appeal, there was “significant 

independent evidence” to support the various drug convictions. As such, we 

find there was no prejudice resulting from trying the SVF charge with the 

possession/dealing drug charges.

Failure to Object to Admission of Evidence

[22] Middleton argues that his trial counsel was ineffective for failing to object to 

admission of evidence relating to his prior drug dealing conviction on grounds 

that such violated Evidence Rule 404. In order to prove ineffective assistance 

due to the failure to object, the petitioner must prove that an objection would 
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have been sustained and that he was prejudiced thereby. Timberlake v. State, 690 

N.E.2d 243, 259 (Ind. 1997).

[23] As acknowledged by Middleton, this issue presents the same concerns as the 

bifurcation issue. We conclude that the outcome is likewise the same. We first 

note that there is no statutory requirement for bifurcation. Additionally, 

Middleton’s trial counsel was not required to anticipate the development in the 

law that occurred in Hines nearly three years after his trial or in Pace, which was 

decided over ten years after his trial. Thus, at the time of Middleton’s trial, 

there was no precedent or statutory provision that required bifurcation. 

Without bifurcation, the prosecutor was required to introduce substantive 

evidence of Middleton’s prior conviction to prove his SVF status. Given the 

state of the law, Middleton has not established that an objection, if made,

would have been sustained. Further, as noted above, given the overwhelming 

evidence in support of his convictions, Middleton cannot show that he was 

prejudiced by admission of the evidence regarding his prior conviction. 

Comment During Voir Dire

[24] Finally, Middleton argues that Williams was ineffective when, during voir dire, 

he referred to Middleton as a “negro.” Petitioner’s Exhibit 1, Transcript at 92. 

Trial counsel’s full statement is set forth above. Middleton asserts that 

Williams’s use of a racial insult was unnecessary to describe his race, especially 
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given that he was being tried in absentia.

7

 He maintains that Williams’s conduct 

in this regard should be deemed to have “so undermined the proper functioning 

of the adversarial process that the trial cannot be relied on as having produced a 

just result.” Appellant’s Brief at 18-19 (quoting Strickland, 466 U.S. at 686). 

[25] Considering the entire context of Williams’s statement, it is evident that 

Williams’s choice of words was in the manner of exploring possible bias of 

prospective jurors. Even in this context, his choice of words was wholly 

unacceptable and amounted to deficient performance. Nevertheless, Middleton 

is not entitled to reversal because he has not established that but for counsel’s 

error, the result of the proceeding would have been different. As noted 

previously, there was overwhelming evidence to support his convictions.

[26] Judgment affirmed.

[27] Bradford, J., concurs.

[28] Pyle, J., concurs in result with opinion.

 

7 Although Middleton was not present during his trial, his race was made known to the jury through witness 

testimony and admitted evidence.
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I N T H E

COURT OF APPEALS OF INDIANA

Corey Middleton,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

Court of Appeals Case No.

32A01-1603-PC-592

Pyle, Judge concurring in result with opinion.

[29] I concur with my colleagues holding, but I write separately because I believe 

Middleton’s counsel’s performance fell below current objective professional 

norms and also prejudiced Middleton. During voir dire, Middleton’s counsel 

properly explored the issue of race with prospective jurors. However, counsel 

referred to his absent client as a “Negro.” In a sterile environment, this word 

might not be any more offensive than the next. But, we do not live in a sterile 

environment. Words have power. Words convey explicit and implicit 
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meanings they have acquired. While many dictionaries may still define the 

term “Negro” as “a person of black African origin or descent[,]” it is also cross 

referenced with the vile slur known euphemistically as “the N-word.” OXFORD 

ENGLISH DICTIONARY, http://www.oed.com (last visited November 21, 2016) 

[hereinafter OXFORD ENGLISH DICTIONARY]. “Negro” is not a word that is 

used solely to distinguish one group of society from another; today’s usage of 

this word does not embrace “‘that intent . . . . [I]t flows from the fountain of 

purpose to injure.’” Randall Kennedy, NIGGER: THE STRANGE CAREER OF A 

TROUBLESOME WORD 5 (2002) (quoting Hosea Easton, A Treatise on the 

Intellectual Character and Civil and Political Condition of the Colored People of the 

United States: and the Prejudice Exercised Towards Them (1837)) (emphasis added). 

For this reason, the United States Census Department, among many other 

public and private entities, has stopped using the term “Negro” on census 

surveys.8 H. Yen, US stopping use of term ‘Negro’ for census Surveys, ASSOCIATED 

PRESS, Feb. 5, 2013. The United States Army has also followed suit. 

Associated Press, Army drops use of the term Negro in document, WASHINGTON 

POST, (Nov. 6, 2014). While these are relatively recent examples of what has 

long been understood, it seems likely that Middleton’s counsel also understood 

the gravity of his choice of words; he quickly tried to correct himself and 

reframe his error under the guise of “political correctness.”

 

8

“‘Negro’ is still, however, used in positive contexts as part of the names of certain organizations, 

particularly the United Negro College Fund, and in historical context, with reference to baseball’s Negro 

Leagues.” OXFORD ENGLISH DICTIONARY.
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[30] In the context of a criminal jury trial, counsel’s use of the term “Negro” to refer 

to his client in front of the potential jurors, who would determine whether he 

was guilty or not, goes far beyond “political correctness.” The right to counsel 

is constitutional and indispensable to the fair administration of justice. See

Gideon v. Wainwright, 372 U.S. 335, 343 (1963). Connected to this right is 

counsel’s legal duty to defend Middleton, to advocate for him, and to not act 

against his interests. IND. ADMISSION AND DISCIPLINE RULE 22. While 

counsel properly performed many other tasks on behalf of his client, he also 

prejudiced his client. Before evidence had even been introduced, potential 

jurors saw and heard Middleton’s attorney, the person who was supposed to be 

his advocate, refer to Middleton in a racially offensive manner. While there is 

no evidence that counsel intended harm to Middleton, the harm was 

nonetheless inflicted. Middleton was presented to potential jurors in a racially 

offensive manner. For these reasons, I believe counsel’s performance during 

voir dire was deficient and also prejudiced Middleton. Nonetheless, in order 

for us to reverse the trial courts denial of Middleton’s petition, we would have 

to believe that “but for counsel’s errors, the result of the proceeding would have 

been different.” Oberst v. State, 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010). In 

this case, the evidence against Middleton was considerable. As a result, I am 

not convinced that the result would have been different.