Court of Appeals of Indiana | Opinion 02A03-1704-PC-824 | January 16, 2018 Page 1 of 24

ATTORNEYS FOR APPELLANT

Stephen T. Owens

Public Defender of Indiana

Anne C. Kaiser

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Lyubov Gore

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Bradford M. Crowder,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

January 16, 2018

Court of Appeals Case No.

02A03-1704-PC-824

Appeal from the Allen Superior 

Court

The Honorable John F. Surbeck, 

Jr., Judge

Trial Court Cause No.

02D05-1209-PC-164

Brown, Judge.
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[1] Bradford M. Crowder appeals the denial of his petition for post-conviction 

relief. He raises four issues which we consolidate as whether the postconviction court erred in denying his petition. We affirm in part and reverse in 

part.

Facts and Procedural History

[2] On April 19, 2011, the State charged Crowder with Count I, child molesting as 

a class A felony, and other counts including child molesting as a class C felony, 

three counts of sexual misconduct with a minor as class B felonies, three counts 

of sexual misconduct with a minor as class C felonies, four counts of child 

exploitation as class C felonies, and vicarious sexual gratification as a class D 

felony. 

[3] On August 12, 2011, Crowder entered a plea agreement, which stated: 

“COMES NOW the State of Indiana by Karen E. Richards, Prosecuting 

Attorney, 38th Judicial Circuit, pursuant to I.C. 35-35-3-3, and respectfully 

notifies the Court . . . .” Appellant’s Appendix Volume II at 59. The 

agreement then listed ten numbered items which each had a line preceding the 

item. The first item indicated that Crowder would plead guilty to all of the 

charges except for child molesting as a class A felony, and the line preceding 

the item was not initialed. Item 2, which had a line containing no initials, 

provided:

That at sentencing the Defendant, and Defendant’s attorney, and 

the State may present facts and argument, but under all 

circumstances the Court shall have the final and full authority to 
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impose the sentence it deems proper, including the minimum and 

maximum allowed by Indiana law. Nothing in this agreement 

shall be construed to limit any victim privilege or right provided 

by law or the discretion of the Court. 

Id. The line preceding item 6 which discussed the possibility of deportation was 

initialed by Crowder. Item 9, which had a line containing no initials, stated: 

“The Defendant knowingly, intelligently and voluntarily waives his/her right to 

challenge the reasonableness of the sentence received in this case under 

Appellate Rule 7(B). Defendant also knowingly, intelligently and voluntarily 

waives his/her right to challenge the sentence on the basis that it is erroneous.” 

Id. at 60. Item 10, which had a line containing no initials, stated: “At 

sentencing the State agrees to dismiss COUNT I, CHILD MOLESTING, a 

CLASS A FELONY.” Id. Crowder and his counsel signed a document stating:

I, Bradford M. Crowder, represent that I am the defendant and 

that I have read this plea agreement or I have had my attorney 

read it to me. I represent that I understand the plea agreement 

and accept same voluntarily and without force, threat or other 

promises from anyone (other than the plea agreement).

I further understand that I have a right to a speedy, public trial by 

court or by jury in the county in which the offense allegedly 

occurred; I have a right to require witnesses to be present at any 

hearing or at the trial for the purpose of testifying on my behalf 

and at my request subpoenas will be issued by the court requiring 

witnesses to appear for me; and, I have a right to remain silent 

and that I cannot be required to give any testimony or make any 

statement against myself to anyone. I understand that this plea 

of guilty waives (gives up) the aforesaid rights.
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Id. at 61.

[4] Also on August 12, 2011, the court held a hearing. Crowder stated that he had 

never been treated for any mental illness and had not suffered from a mental or 

emotional disability. He stated that he was not under the influence of alcohol 

or any drugs and that it was his intention to enter a plea of guilty. The court 

explained Crowder’s rights, and Crowder indicated that he understood he 

would be giving up those rights by pleading guilty. The court read the plea 

agreement, including the provisions that Crowder “knowingly, intelligently and 

voluntarily waives his right to challenge the reasonableness of the sentence 

received in this case under Appellate Rule 7(B)” and “also knowingly, 

intelligently and voluntarily waives his right to challenge the sentence on the 

basis that it is erroneous.” Guilty Plea Transcript at 17. Crowder indicated that 

he understood he was giving up his right to appeal his sentence. He indicated 

that he had not received any promises other than the plea agreement in order to 

induce him to plead guilty, that no one had forced or threatened him to induce 

him to plead guilty, and that pleading guilty was his own free and voluntary act. 

[5] On September 30, 2011, the court held a sentencing hearing. Crowder’s 

counsel stated: 

We would submit that in October to January a time period 

during which these offenses occurred should represent an episode 

of single episode of criminal conduct and at the very least the 

non-child molesting laded [sic] allegations we would concede 

that that would be considered violent in nature so that one could 

be ran consecutively. However, the remainder of these charges 
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should based [sic] upon his single episode of criminal conduct we 

would submit should be ran concurrently and further that, that 

means that the combined sentence should not exceed what would 

be the next highest, the advisory on the next highest which would 

be the A so we would submit that a thirty (30) years cap here is in 

play.

Sentencing Transcript at 8. The prosecutor stated that Count I, child molesting 

as a class A felony, was dismissed because 

[S.] came in to my office and told me that while the abuse began 

when she was thirteen (13) there was more of the grooming 

techniques. He did not actually begin putting his penis in her 

mouth till she turned fourteen (14) and that’s why that charge is 

dismissed that it started with him coming in and fondling her and 

touching her and grooming her and it was after she turned 

fourteen (14) that he began the more, more heinous sexual acts. 

And that’s why that count was dismissed and why he pled guilty 

to the other charges.

Id. at 15-16.

[6] The court found Crowder’s guilty plea and acceptance of responsibility as 

mitigating circumstances. The court stated:

Your attorney has further asked that I consider that these 

offenses be considered a single episode of conduct to justify 

concurrent sentencing and I think the case law clearly indicates 

that that is not correct. I certainly understand your Attorneys 

[sic] advancement of that argument but the case law does not 

support it. It’s a series of events closely related in time, place and 

circumstances that makes something a series of single episode of 

conduct and this is clearly not one (1) instance. I don’t know 

how many times you molested your daughter but it certainly 

wasn’t once, or twice or even three (3) times. 
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Id. at 25. It found Crowder’s criminal record and the extraordinary impact on 

Crowder’s daughter as aggravators. 

[7] The court sentenced Crowder to four years for child molesting as a class C 

felony, ten years each for the three counts of sexual misconduct with a minor as 

class B felonies, four years for each of the two counts of sexual misconduct with 

a minor as class C felonies, one year and 183 days for each of the two counts of 

vicarious sexual gratification as class D felonies, and four years for each of the 

four counts of child exploitation as class C felonies. The court ordered the 

sentences to be served consecutive to each other for an aggregate sentence of 

sixty-one years. 

[8] On September 17, 2012, Crowder filed a petition for post-conviction relief. On 

June 26, 2015, the trial court entered an order granting Crowder’s motion for 

permission to file a belated appeal and holding his petition for post-conviction 

relief in abeyance. In his appellate brief, Crowder argued that his sentence was 

inappropriate. On October 7, 2015, the State filed a motion to dismiss arguing 

that Crowder waived the right to appeal the appropriateness of his sentence in 

his plea agreement and because Crowder should have raised his challenge to the 

validity of his plea agreement by filing a petition for post-conviction relief. On 

November 20, 2015, this Court granted the State’s motion to dismiss the appeal 

with prejudice. On January 22, 2016, this Court denied Crowder’s petition for 

rehearing and stated that the appeal remained dismissed. 
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[9] On June 8, 2016, Crowder filed an amendment to his petition for postconviction relief which alleged that his guilty plea was not entered knowingly,

intelligently, and voluntarily and that he was denied the effective assistance of 

trial counsel.

[10] On September 30, 2016, the court held a hearing on Crowder’s petition. The 

court admitted a letter dated July 29, 2011, from the deputy prosecuting 

attorney to Crowder’s counsel which states:

As I explained to you on the phone yesterday, I met with [S.]. 

[S.] clarified some issues that I had. She explained that the 

molestation began when she was 13 years old and her mother 

was pregnant with her little brother. The molestations started by 

her father coming into her room at night and touching her. This 

type of touching occurred several times. The touching was on 

top of her clothes on her breast. The first act of oral sex did not 

occur until after she turned 14.

Based on this information the State will dismiss Count I prior to 

trial. However, the State is confident that we will secure a 

conviction on the 12 remaining counts based on [S.’s] testimony, 

your client’s admission to the Detective that he began touching 

[S.] when she was thirteen, and the videos he took which we 

have.

The State will give Mr. Crowder one final opportunity to plead 

guilty and avoid trial. He can plead to one of two plea offers. He 

can plead guilty to Counts II, III, IV and IX with a 30 year 

executed sentence. Or he can plead guilty straight-up to the 12 

counts II-XIII. That will give him an opportunity to request a 

sentence of less than 30 years, but he could also receive a 

sentence of greater than 30 years. It is his choice. However, if a 
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plea agreement is going to be accepted, he must enter a plea of 

guilty on or before August 5, 2011. 

Petitioner’s Exhibit D.

[11] Crowder’s trial counsel testified that he received a letter from a deputy 

prosecutor in July 2011 which stated that the deputy prosecutor had met with 

the victim and that she would be dismissing Count I and went on to say that she 

wanted Crowder to plead guilty to a series of counts. He testified he believed 

that one option in the letter was for Crowder to plead to a set term of thirty 

years and the other option was for him to plead straight up to a series of counts. 

He testified that Crowder rejected the offer of thirty years and chose to plead 

straight up to a series of counts, and that he recalled a separate conversation 

with the deputy prosecutor during which she reminded him that she could still 

technically proceed to trial on the count of child molesting as a class A felony 

based upon the victim’s earlier statement. When asked if he advised Crowder 

that he was “not really getting much of a benefit for the dismissal of the A 

Felony,” trial counsel answered, “I didn’t because again, I didn’t read it that 

way because her assessment that she could still technically proceed on the 

victim’s prior statement as often occurs when victims, even another context, 

recant or change their statement as to certain factors involved in the case.” 

Post-Conviction Transcript at 11. 

[12] On cross-examination, trial counsel indicated that Crowder rejected the thirtyyear deal based upon his conversations with a couple of inmates at the county 

jail and another attorney in which he heard that the charges would have to be 
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served concurrent with one another and that they could not be served 

consecutively. Trial counsel testified that he advised Crowder that that was not 

correct and that the sentences could be served consecutively. When asked if he 

advised Crowder that he could receive more than thirty years if he took the 

open plea, trial counsel answered, “Definitely.” Id. at 14. He testified that 

Crowder also wanted the opportunity to argue for a sentence less than thirty 

years. When asked about the possibility of going to trial, Crowder stated: 

“Trial wasn’t really part of the analysis because of the overwhelming amount of 

evidence that the State had against him. He never really talked about exercising 

that as an option, in my memory.” Id. 

[13] Crowder testified that his trial counsel did not explain that the State said they 

would dismiss the A felony due to the victim’s clarification of her age and that 

he did not recall his attorney explaining the appellate waiver in the plea 

agreement. When asked if he would have accepted the plea with the appellate 

waiver if he knew he was not receiving a benefit for the waiver, Crowder 

answered, “Absolutely not.” Id. at 23. He stated that he would have 

considered the other plea or gone to trial. 

[14] On cross-examination, Crowder testified:

I really did not want to go to trial. I figured I had already put my 

daughter and my family through enough. I was guilty. I was 

willing to own up to that. However, if any of the offers that were 

presented to me were not in my mind of what I thought was 

adequate or fair for what happened then I absolutely would have 

gone to trial.
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Id. at 26. Crowder also acknowledged that the plea he accepted allowed him to 

argue for a sentence of less than thirty years. He testified that he had the 

concept that he could not be sentenced to more than thirty years from 

discussing it with other individuals. During re-cross examination, Crowder 

testified that he would have seriously considered the thirty-year fixed plea, but 

could not say for certain whether he would have accepted the offer. 

[15] On March 22, 2017, the court denied Crowder’s petition. The order states in 

part:

CONCLUSIONS OF LAW

* * * * *

3. Mr. Crowder’s testimony [Findings of Fact, ¶ 7] establishes 

that he was motivated to plead guilty because he knew he was 

guilty, he did not want to put his daughter through a trial, and he 

did not know of any defense he could have presented at trial. He 

does not assert that the Court misled him, and he acknowledges 

that the prosecutor did not mislead him, about the possibility of 

being convicted on Count I. Post-Hearing Brief in Support of 

Amended Post-Conviction Relief Petition (hereinafter 

Petitioner’s Brief), at 6. The evidence establishes that [trial 

counsel] did not advise him correctly on that point [Findings of 

Fact, ¶¶ 5-6], but does not establish that the illusory possibility of 

being convicted on Count I played any part in Mr. Crowder’s 

decision to plead guilty rather than go to trial. Mr. Crowder now 

asserts that, had he known he was getting no benefit for the 

waiver of his right to appeal, “[h]e most likely would have 

accepted the thirty-year fixed plea because he did not want to put 

his daughter through trial” – not that he would have decided to 

go to trial. Petitioner’s Brief, at 5. Before pleading guilty, he was 

already aware that he was not guilty of the offense charged in 
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Count I because the victim was at least 14 years old at the time; 

therefore, he repeatedly rejected plea offers calling for him to 

plead guilty to that count. Id. at 2. Mr. Crowder did not testify, 

and no evidence suggests, that he had any actual fear of being 

convicted on Count I if he went to trial. In the language of 

Willoughby [v. State, 792 N.E.2d 560, 563 (Ind. Ct. App. 2003), 

trans. denied], although it appears that Mr. Crowder did hold an 

incorrect belief about penal consequences, there is no evidence 

that any resulting “intimidation” was “material to his decision to 

plead guilty.” In short, no objective facts support the conclusion 

that Mr. Crowder’s decision to plead guilty rather than go to trial 

was “driven” by the illusory threat of conviction on Count I, nor 

by any advice or lack of advice from [trial counsel] about the 

possibility of conviction on that count. Furthermore, the strength

of the State’s case was very great, as indicated by [trial counsel’s] 

acknowledgement that the evidence was overwhelming [Findings 

of Fact, ¶ 6]; the prosecutor’s uncontradicted assertion that nine 

(9) videos from Mr. Crowder’s cell phone depicted the offenses 

[id., ¶ 4]; and Mr. Crowder’s own lack of knowledge of any 

defense he could have presented at trial [id., ¶ 7]. Thus, two of 

the three factors identified in Suarez [v. State, 967 N.E.2d 552, 

555-556 (Ind. Ct. App. 2012), reh’g denied, trans. denied], strongly 

tend to establish that Mr. Crowder was not induced to plead 

guilty by the illusory threat of conviction on Count I, nor by 

deficient advice from [trial counsel] regarding that count. 

4. . . . . Through his own fault in disregarding relevant advice 

from [trial counsel], and relying on bad advice from fellow 

inmates as well as his own conjecture that all his offenses over a 

period of months might have formed a single episode of criminal 

conduct, Mr. Crowder erroneously believed that the benefit 

conferred by the open plea offer he accepted was greater than it 

really was [Findings of Fact, ¶¶ 6-7]. . . . Mr. Crowder’s guilty 

plea cannot be invalidated as involuntary on the ground that any 

benefit actually conferred by the plea did not include a limitation 

of his sentencing exposure to 30 years, because he was not misled 

into holding his incorrect belief that it did include such a 
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limitation by the judge, the prosecutor, or defense counsel – and 

indeed defense counsel advised him to the contrary [Findings of 

Fact, ¶ 6].

5. In summary, Mr. Crowder’s guilty plea cannot be invalidated 

as involuntary because no one misled him to believe he could 

actually be convicted on Count I, and (more importantly) 

because he has not shown that he would have decided to go to 

trial rather than plead guilty had he known that Count I was to 

be dismissed in any event. Of the three factors identified in 

Suarez, 967 N.E.2d at 555-556, two (objective factors establishing 

that the decision to plead guilty was “driven” by an illusory 

threat or erroneous advice, and the strength of the State’s case) 

strongly tend to establish that Mr. Crowder’s guilty plea was 

voluntary, and the third (the benefit provided by the guilty plea) 

does not tend to establish that it was not voluntary. [Trial 

counsel] did fail to advise Mr. Crowder that Count I was to be 

dismissed in any event, but Mr. Crowder has not shown a 

reasonable probability that he would have decided to go to trial 

rather than plead guilty if he had been so advised, and he tacitly 

admits as much. Petitioner’s Brief, at 10 (Mr. Crowder no longer 

asserts that he would have decided to go to trial, but asserts only 

that “there is a reasonable probability that he would have chosen 

the [30-year] fixed plea or entered into an open plea without a 

written plea agreement to preserve his appellate rights.”

* * * * *

10. There was no point at which Mr. Crowder could have 

entered a plea of guilty to Counts II through XIII without a plea 

agreement (thereby preserving his right to appeal his sentence) 

after the dismissal of Count I [Findings of Fact, ¶ 5]. An open 

plea offer with no waiver of his right to appeal his sentence, 

otherwise identical to the offer he did accept, was not tendered. 

It is not clear whether Mr. Crowder would have accepted such an 

offer had it been tendered. 
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Mr. Crowder did not testify that he would have done so 

[Findings of Fact, ¶ 7]; he did not tell [trial counsel] that he 

wished to do so [id., ¶ 6]; and he expressly disclaimed any 

interest in doing so at the guilty plea hearing [id., ¶ 4]. On the 

other hand, as Count I was to be dismissed in any event, Mr. 

Crowder received no real benefit in exchange for the waiver of 

his right to appeal, and [trial counsel] appears to have erred in 

overlooking this point [id., ¶¶ 5-6]. It would not be difficult to see 

a reasonable probability that, had [trial counsel] pointed out to 

the prosecutor that Mr. Crowder was getting no real benefit in 

exchange for his waiver of the right to appeal, the prosecutor 

would have decided to revise the plea offer to eliminate the 

waiver, rather than take Mr. Crowder’s remaining 12 counts to 

trial. In that event, it appears probable that Mr. Crowder would 

have accepted that revised plea offer. Thus, on the supposition 

that [trial counsel’s] performance in failing to do so was deficient, 

Mr. Crowder’s defense would have suffered prejudice to the 

extent that he lost his right to appeal his sentence. See Taylor v. 

State, 840 N.E.2d 324, 331 (Ind. 2006) (if counsel’s performance 

was deficient, defendant may prove prejudice by showing a 

reasonable probability – that is, a probability “sufficient to 

undermine confidence in the outcome” – that, but for the claimed 

errors, the result of the proceeding would have been different); 

[Missouri v. Frye, 132 S.Ct. 1399, 1409-1410 (2012)] (defendant 

may prove prejudice by showing reasonable probability that he 

would have accepted a more favorable plea offer if not for 

counsel’s error).

11. The only remedy available to Mr. Crowder on the 

suppositions set forth in paragraph 10 above, however, would be 

to restore him to the same position he would have occupied if not 

for [trial counsel’s] error in failing to procure an open plea 

agreement with no waiver of the right to appeal. See Marshall [v. 

State, 621 N.E.2d 308, 318 (Ind. 1993)], Flanders [v. State, 955 

N.E.2d 732, 752 (Ind. Ct. App. 2011), reh’g denied, trans. denied]. 

This could only be done by severing the waiver provision and 

restoring Mr. Crowder’s right to pursue a timely appeal of his 
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sentence, the same right he would have possessed at the time of 

sentencing if not for the waiver. See Frye, 132 S.Ct. 1399; Lee v. 

State, 816 N.E.2d 35, 39-40 (Ind. 2004) (a court can sever an 

illegal provision of a plea agreement, and enforce the remainder, 

if the basic purpose of the agreement has not been frustrated). As 

Mr. Crowder now asserts only that “[t]he proper remedy in this 

case is for the plea to be vacated,” not that his right to appeal his 

sentence for his existing convictions should be restored 

[Petitioner’s Brief, at 10-11], it appears that he has waived any 

claim of entitlement to the only arguably available remedy.

12. [Crowder] has failed to prove his claim on the merits by a

preponderance of the evidence.

13. The Petition for Post-Conviction Relief is hereby denied.

Appellant’s Appendix Volume III at 134-143.

Discussion

[16] Before addressing Crowder’s allegations of error, we note the general standard 

under which we review a post-conviction court’s denial of a petition for postconviction relief. The petitioner in a post-conviction proceeding bears the 

burden of establishing grounds for relief by a preponderance of the evidence. 

Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5). 

When appealing from the denial of post-conviction relief, the petitioner stands 

in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d 

at 679. On review, we will not reverse the judgment unless the evidence as a 

whole unerringly and unmistakably leads to a conclusion opposite that reached 

by the post-conviction court. Id. “A post-conviction court’s findings and 

judgment will be reversed only upon a showing of clear error – that which 
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leaves us with a definite and firm conviction that a mistake has been made.” Id. 

In this review, we accept findings of fact unless clearly erroneous, but we 

accord no deference to conclusions of law. Id. The post-conviction court is the 

sole judge of the weight of the evidence and the credibility of witnesses. Id.

[17] Crowder argues that his plea was not knowing, intelligent, or voluntary where 

he did not know the dismissal of the charge of child molesting as a class A 

felony was due to a lack of evidence and that he received no material benefit 

while also waiving his appellate rights. He argues that the post-conviction court 

clearly erred when it held that he did not show that the dismissal of Count I was 

a motivating factor in his decision to accept the open plea. In other words, he 

asserts that he accepted the open plea under the illusory threat that the State 

would proceed on Count I unless he accepted either of the two proffered pleas. 

Crowder contends that he received ineffective assistance of counsel when his 

counsel failed to advise him that the open plea provided no benefit. He also 

asserts that he waived his right to appeal his sentence, but that he did not do so 

knowingly, intelligently, and voluntarily. He argues that the post-conviction 

court erred when it determined that he might be entitled to a direct appeal of his 

sentence but waived that remedy by advocating for vacating his plea agreement. 

He requests that we reverse the denial of post-conviction relief and order that 

his guilty plea be vacated or, at a minimum, order that his appellate waiver be 

severed from his plea agreement so he may proceed to appellate review of his 

sentence. 
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[18] The State argues that Crowder was not motivated to plead guilty by an illusory 

threat of prosecution for child molesting as a class A felony and that his plea 

offered the benefits of allowing him to argue for a sentence less than thirty 

years, unlike an earlier plea offer, and avoid the futility of a trial. The State 

contends that Crowder’s trial counsel was not ineffective, and that Crowder’s 

waiver of his right to appeal his sentence was knowing and voluntary. It also 

contends that, given Crowder’s repeated failures to request that he be allowed 

to appeal his sentence, the post-conviction court properly determined that he

waived any claim of entitlement. It asserts that alternatively, should this Court 

find that Crowder’s appellate waiver was not knowing or voluntary or that trial 

counsel was ineffective in failing to advise Crowder that his appellate waiver 

inured no benefit to him, the remedy that would restore Crowder to the same 

position he would have occupied if not for these errors would be to reinstate his

right to appeal his sentence. In reply, Crowder argues in part that he did not 

waive any remedy.

[19] With respect to the voluntariness of his guilty plea, the Indiana Supreme Court 

has held that a plea entered after the trial judge has reviewed the various rights 

which a defendant is waiving and made the inquiries called for by statute is 

unlikely to be found wanting in a collateral attack. State v. Moore, 678 N.E.2d 

1258, 1265 (Ind. 1997), reh’g denied, cert. denied, 523 U.S. 1079 (1998). 

However, defendants who can show that they were coerced or misled into 

pleading guilty by the judge, prosecutor or defense counsel will present 

colorable claims for relief. Id. at 1266. In assessing the voluntariness of the 
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plea, we review all the evidence before the court which heard his postconviction petition, including testimony given at the post-conviction hearing, 

the transcript of the petitioner’s original sentencing, and any plea agreements or 

other exhibits which are a part of the record. Id. In Moore, the Court held that 

“[v]oluntariness is also distinct from ineffective assistance of counsel, despite 

some references in our cases to pleas as involuntary” and that voluntariness 

“focuses on whether the defendant knowingly and freely entered the plea, in 

contrast to ineffective assistance, which turns on the performance of counsel 

and resulting prejudice.” Id. 

[20] Generally, to prevail on a claim of ineffective assistance of counsel a petitioner 

must demonstrate both that his counsel’s performance was deficient and that 

the petitioner was prejudiced by the deficient performance. French v. State, 778 

N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104 

S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls 

below an objective standard of reasonableness based on prevailing professional 

norms. Id. To meet the appropriate test for prejudice, the petitioner must show 

that there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different. Id. A reasonable 

probability is a probability sufficient to undermine confidence in the outcome. 

Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong 

will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective 

assistance of counsel claims can be resolved by a prejudice inquiry alone. Id. 
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[21] When considering a claim of ineffective assistance of counsel, a “strong 

presumption arises that counsel rendered adequate assistance and made all 

significant decisions in the exercise of reasonable professional judgment.” 

Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance 

is presumed effective, and a defendant must offer strong and convincing 

evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73 

(Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will 

not support a claim of ineffective assistance of counsel. Clark v. State, 668 

N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S. 

Ct. 1438 (1997). 

[22] Because Crowder was convicted pursuant to a guilty plea, we analyze his 

claims under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura categorizes two 

main types of ineffective assistance of counsel cases. Smith v. State, 770 N.E.2d 

290, 295 (Ind. 2002). The first category relates to “an unutilized defense or 

failure to mitigate a penalty.” Willoughby v. State, 792 N.E.2d 560, 563 (Ind. Ct. 

App. 2003), trans. denied. The second relates to “an improper advisement of 

penal consequences,” and this category has two subcategories: (1) “claims of 

intimidation by exaggerated penalty or enticement by an understated maximum 

exposure;” or (2) “claims of incorrect advice as to the law.” Id. Crowder’s

claim, which is that his trial counsel failed to advise him that the open plea 

provided no benefit, appears to fall under the second category. 

[23] With respect to claims of exaggerated penalty, the Segura Court stated:
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Whether viewed as ineffective assistance of counsel or an 

involuntary plea, the postconviction court must resolve the factual 

issue of the materiality of the bad advice in the decision to plead, 

and postconviction relief may be granted if the plea can be shown 

to have been influenced by counsel’s error. However, if the 

postconviction court finds that the petitioner would have pleaded 

guilty even if competently advised as to the penal consequences, 

the error in advice is immaterial to the decision to plead and there 

is no prejudice.

Segura, 749 N.E.2d at 504-505. See also Willoughby, 792 N.E.2d at 563 (holding 

that it was immaterial whether the petitioner’s claim was of an involuntary plea 

or ineffective assistance and that under either standard, the petitioner must 

demonstrate that the intimidation resulting from his trial counsel’s failure to 

inform him of the single larceny rule was material to his decision to plead 

guilty); Graham v. State, 941 N.E.2d 1091, 1101-1102 (Ind. Ct. App. 2011) 

(holding that the standard set out in Segura and Willoughby was equally 

applicable to straightforward claims of an involuntary or illusory plea), aff’d on 

reh’g, 947 N.E.2d 962.

[24] In Segura, with respect to prejudice from advice that omits or misdescribes penal 

consequences, the Court held: 

We see no reason to require revisiting a guilty plea if, at the end 

of the day, the inevitable result is conviction and the same 

sentence. Yet, we agree that in extreme cases, a credible scenario 

can be posited that results in a truly innocent defendant pleading 

guilty because of incorrect advice as to the consequences. The 

cases where a showing of prejudice from incorrect advice as to 

the inevitable consequences of conviction will be able to be made 

may be few. If such a circumstance is shown, however, the 

defendant should not be stripped of the presumption of 
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innocence, the requirement of proof beyond a reasonable doubt, 

and the other procedural rights that are not available in 

postconviction proceedings. To require a showing of innocence 

to obtain a new trial would have that effect. Accordingly, we 

conclude that in order to state a claim for postconviction relief a 

petitioner may not simply allege that a plea would not have been 

entered. Nor is the petitioner’s conclusory testimony to that 

effect sufficient to prove prejudice. To state a claim of prejudice 

from counsel’s omission or misdescription of penal consequences 

that attaches to both a plea and a conviction at trial, the 

petitioner must allege, in Hill’s terms, “special circumstances,”1

or, as others have put it, “objective facts”2supporting the 

conclusion that the decision to plead was driven by the erroneous 

advice.

We believe a showing of prejudice from incorrect advice as to the 

penal consequences is to be judged by an objective standard, i.e., 

there must be a showing of facts that support a reasonable 

probability that the hypothetical reasonable defendant would 

have elected to go to trial if properly advised. . . . [A] petitioner 

may be entitled to relief if there is an objectively credible factual 

and legal basis from which it may be concluded that “there is a 

reasonable probability that, but for counsel’s errors, he would not 

have pleaded guilty and would have insisted on going to trial.” 

Hill, 474 U.S. at 59, 106 S. Ct. 366.

. . . [F]or claims relating to penal consequences, a petitioner must 

establish, by objective facts, circumstances that support the 

conclusion that counsel’s errors in advice as to penal 

consequences were material to the decision to plead. Merely 

alleging that the petitioner would not have pleaded is insufficient. 

 

1 Hill [v. Lockhart, 474 U.S. 52, 60, 106 S. Ct. 366 (1985)].

2 McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir. 1996); State v. Donald, 198 Ariz. 406, 

10 P.3d 1193, 1201 (Ct. App. 2000)[, review denied, cert. denied, 534 U.S. 825, 122 S. Ct. 63 

(2001)].
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Rather, specific facts, in addition to the petitioner’s conclusory 

allegation, must establish an objective reasonable probability that

competent representation would have caused the petitioner not to 

enter a plea.

Segura, 749 N.E.2d at 507. 

[25] Relying upon Segura, this Court later held, “when an error in advice supports a 

claim of intimidation by exaggerated penalty, a petitioner must establish 

specific facts that lead to the conclusion that a reasonable defendant would not 

have entered a plea had the error in advice not been committed.” Willoughby, 

792 N.E.2d at 564. “In addition to any special circumstances shown by the 

defendant, we also think it appropriate to consider the strength of the State’s 

case.” Suarez v. State, 967 N.E.2d 552, 556 (Ind. Ct. App. 2012), reh’g denied, 

trans. denied. “It is apparent that any reasonable defendant would take this into 

account when pondering a guilty plea.” Id. It is “also appropriate to consider 

the benefit conferred upon the defendant by his guilty plea.” Id. 

[26] The post-conviction court concluded that the evidence does not establish that 

the illusory possibility of being convicted on Count I played any part in 

Crowder’s decision to plead guilty rather than go to trial. The record reveals 

that Crowder rejected the thirty-year deal because of his understanding based 

upon conversations with others that the charges would have to be served 

concurrently with each other and they could not be served consecutively. 

Crowder’s trial counsel testified that he advised Crowder that that was not 

correct, that the sentences could be served consecutively, and that he could 

receive more than thirty years if he took the open plea. Trial counsel testified 
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that Crowder wanted the opportunity to argue for a sentence of less than thirty 

years, that trial “wasn’t really part of the analysis because of the overwhelming 

amount of evidence that the State had against him,” and that Crowder “never 

really talked about exercising that as an option, in my memory.” PostConviction Transcript at 14. While Crowder testified that he would not have 

accepted the plea agreement he ultimately accepted, he also testified that he did 

not want to go to trial, had already put his daughter and family through 

enough, was guilty, was willing to own up to that, the plea he accepted allowed 

him to argue for a sentence of less than thirty years, and that he had the concept 

that he could not be sentenced to more than thirty years from discussing it with 

individuals other than his trial counsel. Under the circumstances, we cannot 

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

conclusion opposite that reached by the post-conviction court. 

[27] With respect to the waiver provision in Crowder’s plea agreement, the State 

does not challenge the post-conviction court’s findings that Crowder’s trial 

counsel did not advise him that the plea agreement provided no benefit to him, 

that trial counsel would not have advised Crowder to accept an open plea if he 

knew it provided no benefit, and that trial counsel did not ask the prosecutor to 

remove the waiver after learning that Count I was to be dismissed in any event. 

Also, the State does not challenge the post-conviction court’s conclusions that 

Crowder’s trial counsel failed to advise him that Count I was to be dismissed in 

any event or that his trial counsel “appears to have erred in overlooking this 
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point.” Appellant’s Appendix Volume III at 110. We also observe that the 

post-conviction court concluded: 

It would not be difficult to see a reasonable probability that, had 

[trial counsel] pointed out to the prosecutor that Mr. Crowder 

was getting no real benefit in exchange for his waiver of the right 

to appeal, the prosecutor would have decided to revise the plea 

offer to eliminate the waiver, rather than take Mr. Crowder’s 

remaining 12 counts to trial.

Id. 

[28] We note that Crowder’s amendment to his petition asserted that his counsel 

should have advised him to not accept a plea agreement that waived his 

appellate rights when he received no benefit for the waiver. While Crowder’s 

post-hearing brief stated that the proper remedy was for the plea to be vacated, 

we conclude that he did not explicitly waive the remedy of severing the 

provision related to the waiver of his right to appeal his sentence from the plea 

agreement in the event that the post-conviction court found that vacation of the 

plea agreement was not warranted. Further, his proposed findings of fact 

stated:

[If this court finds Crowder did not meet his burden to show his 

entire guilty plea must be vacated:] This court concludes that 

paragraph nine is void, but the remainder of the plea agreement 

should remain intact. This court does not find that Crowder has 

waived this form of relief by arguing that the proper remedy is to 

vacate the appeal, especially where Crowder maintains in his 

post-hearing brief that the waiver is void. Pet.’s Br. at 7. This 

court directs the Allen County Public defender to appoint 

counsel to perfect an appeal of Crowder’s sentence.
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Id. at 127 (bracketed text appears in original). 

[29] The State asserts that, should this Court find that Crowder’s appellate waiver 

was not knowing or voluntary or that the trial counsel was ineffective in failing 

to advise him that his appellate waiver inured no benefit to him, the proper 

remedy would be to reinstate his right to appeal his sentence.

3

 Under these

circumstances, we reverse the post-conviction court’s finding that Crowder 

waived the alternative remedy of permitting him to pursue an appeal of his 

sentence. 

Conclusion

[30] For the foregoing reasons, we affirm the post-conviction court’s order to the 

extent it upheld the plea agreement and reverse that portion of the court’s order 

finding that Crowder waived the remedy of permitting him to pursue an appeal 

of his sentence.

[31] Affirmed in part and reversed in part.

Najam, J., and Kirsch, J., concur.

 

3 Both the State and Crowder cite Lee v State, 816 N.E. 2d 35 (Ind. 2004), also cited in the post-conviction 

court’s order, in support of severing a provision of a plea agreement.