Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020 Page 1 of 22

ATTORNEYS FOR APPELLANT

Stephen T. Owens

Public Defender of Indiana

Emilee A. Grubb

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ellen H. Meilaender

Supervising Deputy

Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Charles E. Barber,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent,

January 15, 2020

Court of Appeals Case No.

19A-PC-1234

Appeal from the St. Joseph

Superior Court 

The Honorable Jeffrey L. Sanford, 

Judge

Trial Court Cause No.

71D03-1712-PC-48

Robb, Judge.
Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020 Page 2 of 22

Case Summary and Issue

[1] In 1993, Charles Barber pleaded guilty to child molesting, a Class C felony, and 

was sentenced to eight years. In 2017, Barber filed a petition for postconviction relief alleging that his counsel was ineffective for failing to request a 

competency evaluation and that he was denied his right to substantive due 

process when he pleaded guilty while incompetent. Following a hearing, the 

post-conviction court denied Barber’s petition. Barber now appeals, raising two 

issues for our review which we consolidate and restate as whether the postconviction court erred in denying his petition. Concluding Barber did not meet 

his burden of establishing his claims by a preponderance of the evidence and 

therefore, the post-conviction court did not clearly err in denying the petition, 

we affirm.

Facts and Procedural History

[2] In February 1993, the State charged Barber with child molesting. The trial 

court appointed Anthony Luber to represent him. In June 1993, Barber 

pleaded guilty to the charge in exchange for the State agreeing to forego adding 

an habitual offender enhancement. Barber was thirty-six years old at the time 

of his guilty plea. He had completed eighth grade but was unable to read or 

write. At the plea hearing, Luber informed the trial court that Barber was 

unable to read so Luber had read the plea agreement to him before he signed it. 

Barber “did ask several questions during that process and some of the terms and 

phrases were explained to him.” Trial Exhibits, Volume 3 at 24. Barber 
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confirmed to the trial court that his attorney had read the plea agreement to him 

and they had a chance to talk about it before he signed it. The trial court asked 

Barber if he had any physical, emotional, or mental condition that would make 

it difficult for him to understand things or make decisions. Barber answered, 

“Just . . . reading and writing.” Id. at 25. The trial court then asked, “But in 

terms of understanding what people are talking about and what . . . you’re 

deciding . . ., no problem?” Id. Barber answered, “No.” Id. The trial court 

advised Barber of the rights he would be waiving by pleading guilty and Barber 

confirmed he understood and indicated he wished to proceed with the guilty 

plea. Luber then questioned Barber about the precipitating incident in order to 

lay a factual basis. Barber responded appropriately to questions posed to him 

during the plea hearing.

[3] Before sentencing, Barber was referred for a diagnostic report from the Indiana 

Department of Correction (“DOC”) because a psychological evaluation was 

required for him to be considered for a community corrections placement. At 

the sentencing hearing, Luber acknowledged that Barber “doesn’t function at a 

very high level although he does have some intelligence. . . . He functions very 

well in an institutional setting. He has been a trustee in the jail because he is 

reliable. And if he is given a task to do, he does it.” Id. at 7-8. Luber also 

referenced the DOC report, which indicated that “while he is illiterate, he does 

possess enough mental attributes to be able to overcome that.” Id. at 9. Barber 

received an eight-year sentence with four and one-half years suspended to 
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probation, the first year of which was to be served in community corrections. 

He completed his sentence in October 1999.

[4] On December 8, 2017, Barber filed a pro se Petition for Post-Conviction Relief 

alleging ineffective assistance of counsel and “knowing & voluntary plea” as 

grounds for relief. Appendix to Brief of Petitioner-Appellant, Volume Two at 

16. The petition was later amended by counsel to elaborate upon those grounds 

for relief:

Petitioner Barber was denied his right to substantive due process 

of law as guaranteed by the Fifth and Fourteenth Amendments 

to the United States Constitution and Article One, Sections 12 

and 13 of the Indiana Constitution when he pled guilty while 

incompetent.

* * *

Petitioner Barber was denied his rights to due process of law and 

the effective assistance of counsel as guaranteed by the Fifth, 

Sixth, and Fourteenth Amendments to the United States 

Constitution and Article One, Sections 12 and 13 of the Indiana

Constitution, when trial counsel failed to request a competency 

evaluation.

Id. at 31-32. The State’s answer asserted the defenses of res judicata, laches, 

and waiver. At the beginning of the post-conviction hearing, however, the State 

informed the post-conviction court that it was not proceeding on res judicata or 

waiver, as Barber had not filed a direct appeal. 
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[5] Barber called Attorney Luber to testify during the post-conviction hearing. 

Luber had no recollection of specific conversations with Barber but described 

his typical way of handling his cases – for instance, he would usually meet with 

his clients after he was appointed, read through the discovery, and convey plea 

offers. When he received a plea offer, he would go through the agreement with 

his client, and if the client could not read, he would read the agreement to the 

client. 

[6] With regard to his experience representing incompetent clients in his fifty-year 

career, Luber noted that there are “two issues dealing with the mental thing. 

One is whether or not the matter is a defense, and the other is a question about

. . . what the person knows and understands and can comprehend [about] what 

is going on.” Transcript of Evidence [from PCR Hearing], Volume 2 at 12. He 

described his general practice at an initial meeting: 

I try to go through a background with the person [and] I usually 

get signals about where a person is in some of those things. I ask 

simple questions . . . [a]nd it gives me a hint about it. . . . And I 

think I’m sensitive to those things. . . . [I]f I don’t think someone 

is understanding, I usually – it usually gets raised. 

Id. at 12-13. Luber recalled that Barber was “clearly in the functioning level 

and had lived a life and had made adjustments[.] So I didn’t think it was a 

thing that he was acting in a very low IQ kind of [way].” Id. at 14. 

[7] Dr. James Cates also testified at the post-conviction hearing. Dr. Cates is a 

psychologist who conducted a competency evaluation of Barber for purposes of 
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his post-conviction relief petition. This was only the second time he had been 

asked to determine in the present whether someone was competent in the past. 

Dr. Cates agreed with Luber’s assessment that there are two basic types of 

competency: competency related to mental illness and competency related to 

intellectual disability. Barber falls into the latter category. Dr. Cates reviewed a 

number of documents provided to him by Barber’s PCR attorney, “[t]he 

majority of them related to previous assessments which had been completed on 

Mr. Barber regarding his intellectual abilities regarding his vocational skills.” 

Id. at 28. He disregarded some of the reports as “irrelevant.” Id. at 47. The 

report with “the most comprehensive scores” was an IQ test from December 16, 

1999, in which Barber achieved a “full scale IQ of 57.” Id. at 29. After his 

review of these prior reports, Dr. Cates met once with Barber for several hours 

during which he administered four tests to assess Barber’s academic ability and 

adaptive behavior.1 Dr. Cates found Barber to be “pleasant, engaging, friendly, 

and very child-like[,]” id., but his vocabulary was “much more limited” than he 

would expect from an adult, id. at 30. Results from the testing in 2018 showed 

Barber had a full scale IQ of 46, which Dr. Cates described as “rais[ing] a red 

flag that this is probably an individual who is going to have significant difficulty 

understanding what’s going on in the courtroom and being able to assist their 

attorney in any kind of defense.” Id. at 34. Dr. Cates testified that the change 

1 Dr. Cates described adaptive behavior as “a measure of . . . how well he does with activities of daily living” 

with respect to communication, daily living skills, and socialization. Id. at 37.
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in IQ from 1999 to 2018 was not a “big difference[.]” Id. at 53. He 

acknowledged that the scores in and of themselves do not indicate 

incompetence, but the low academic ability indicated by Barber’s scores cause 

concern that “even if information is read to him, he is going to have 

tremendous difficulty understanding it.” Id. at 37. Dr. Cates thinks he can “do 

a pretty good job of assessing people’s IQ just on the fly[,]” but after meeting 

Barber, “I would never have assessed him as low functioning as he is.” Id. at 

58.

[8] Dr. Cates’ conclusion, “based on both historical data and the data [he] 

collected” about Barber’s academic ability and adaptive behavior, was that 

Barber “is not now competent and was not competent in prior time to stand 

trial.” Id. at 42. With regard to Barber’s past competence, Dr. Cates opined 

that Barber “has been intellectually disabled across his life. . . . The records 

suggest a long standard pattern of intellectual disability, of poor adaptive 

functioning.” Id. Although Barber suffered a stroke in 2017 that caused 

increased difficulty with his memory and numbness on his left side, Dr. Cates 

stated that “there is not evidence that [the stroke] has significantly impaired his 

intellectual functioning or changed his intellectual functioning from what it was 

previously.” Id. Dr. Cates’ opinion as to Barber’s competence at the time he 

pleaded guilty in this case was that “his competence in 1993 would not have 

been there. He was not competent in 1993.” Id. at 43.

[9] The parties stipulated that the Indiana State Police detective who had 

investigated Barber’s 1993 case died in 2015. Additionally, the court took 
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judicial notice of the “flat file” in the criminal case. Id. at 63. The “flat file” 

apparently contained some but not all of the pleadings and documents from the 

underlying case. See id. at 22 (post-conviction court noting and the State 

agreeing the pre-sentence investigation and DOC diagnostic report were not 

contained in the “flat file” and therefore not part of the trial court’s record).2

[10] The post-conviction court entered findings of fact and conclusions of law 

denying Barber’s petition. Specifically, the post-conviction court concluded:

In this particular case, this Court need only look at the first prong 

of the Strickland test. [Barber] appeared before the [trial c]ourt on 

April 1, 8, June 11, 17, 18, July 16, September 22, 29, October 4, 

5, 1993. When he pled, Barber answered negatively that he had 

a mental condition that would make it difficult for him to 

understand. He just couldn’t read or write.

* * *

This Court finds, based on the evidence presented, that Mr. 

Luber’s performance did not fall below an objective standard of 

reasonableness based on prevailing norms. [Barber] appeared 

numerous times in court, and the Judge detected no mental 

health issues and the DOC detected no IQ issues. There is 

nothing in the record that would have tipped off Luber there was 

a problem. This Court cannot hold that Mr. Luber’s 

performance was deficient. 

2 The State’s proposed findings and conclusions contain many citations to the flat file. See App. to Br. of 

Petitioner-Appellant, Vol. Two at 60-80. The materials from the flat file were not made a part of the record 

submitted to this court on appeal, however, and we do not have access to them.
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Appealed Order at 5-6.3 

Discussion and Decision

I. Post-Conviction Standard of Review

[11] Barber appeals the denial of his petition for post-conviction relief. Postconviction proceedings are not a “super-appeal.” Garrett v. State, 992 N.E.2d 

710, 718 (Ind. 2013). Rather, they provide “a narrow remedy to raise issues 

that were not known at the time of the original trial or were unavailable on 

direct appeal.” Id. 

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

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

Rule 1(5). A petitioner who has been denied relief faces a “rigorous standard of 

review.” Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001). To prevail, the 

petitioner must show that the evidence as a whole leads unerringly and 

unmistakably to a conclusion opposite that reached by the post-conviction 

court. Hall v. State, 849 N.E.2d 466, 469 (Ind. 2006). When reviewing the postconviction court’s order denying relief, we will “not defer to the post-conviction 

court’s legal conclusions,” and the “findings and judgment will be reversed only 

upon a showing of clear error—that which leaves us with a definite and firm 

3 The post-conviction court did not separately address Barber’s standalone claim that his plea was not 

knowing and voluntary.
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conviction that a mistake has been made.” Humphrey v. State, 73 N.E.3d 677, 

682 (Ind. 2017) (quoting Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000), 

cert. denied, 534 U.S. 830 (2001)). The post-conviction court is the sole judge of 

the weight of the evidence and the credibility of witnesses. Fisher v. State, 810 

N.E.2d 674, 679 (Ind. 2004).

II. Laches

[13] The State asserts that Barber’s claims are barred by laches and should not be 

considered on the merits. Laches arises when a party neglects to raise a known 

claim for an unreasonable period of time resulting in prejudice to the opposing 

party. Edmonson v. State, 87 N.E.3d 534, 537 (Ind. Ct. App. 2017). But laches 

implies something more than the lapse of time; it requires some change of 

circumstances that makes the relief sought inequitable. Kosciusko Cty. Cmty. 

Fair, Inc. v. Clemens, 116 N.E.3d 1131, 1139 (Ind. Ct. App. 2018). The State, 

having the burden of proving the affirmative defense of laches, must therefore 

prove by a preponderance of the evidence that Barber unreasonably delayed in 

seeking relief and that it was prejudiced by the delay. Balderas v. State, 116 

N.E.3d 1141, 1143 (Ind. Ct. App. 2018). In a post-conviction context, 

“prejudice exists when the unreasonable delay operates to materially diminish a 

reasonable likelihood of successful re-prosecution.” Armstrong v. State, 747 

N.E.2d 1119, 1120 (Ind. 2001). 

[14] Although the State informed the post-conviction court at the beginning of the 

post-conviction hearing that it was pursuing the defense of laches and entered 
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into evidence a stipulation that the investigating officer was deceased, the State 

did not present any argument or other evidence regarding laches and 

specifically, prejudice. It offered no evidence about the whereabouts or 

availability of the victim or the victim’s mother or the possibility that the 

officer’s notes or the statements he took still exist in some form, and it appears 

at least some parts of the State’s and trial court’s files still exist. See supra n.2; 

see also Tr., Vol. 2 at 22 (State referencing documents from the criminal case 

that were in the prosecutor’s office’s files). Importantly, the post-conviction 

court made no findings about laches, and we therefore presume it concluded the 

State had not proven that defense. Although the passage of time between 

Barber’s guilty plea and his petition for post-conviction relief – twenty-four 

years – is considerable, we conclude the State failed to make the required 

showing of prejudice and we decline to decide this case on the basis of laches 

given the record before us.

III. Ineffective Assistance of Counsel

[15] Barber claims the post-conviction court erred in concluding his trial counsel’s 

assistance was not ineffective when he did not request a competency evaluation

prior to allowing him to plead guilty. The Sixth Amendment to the United 

States Constitution guarantees a criminal defendant the right to counsel and 

mandates “that the right to counsel is the right to the effective assistance of 

counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quotation 

omitted).
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[16] 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, 466 U.S. at 687, 694). A 

counsel’s performance is deficient if it falls below an objective standard of 

reasonableness based on prevailing professional norms. Id. To meet the 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. When we consider a claim of ineffective assistance of counsel, 

we apply a “strong presumption . . . 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, 1073 (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). 

[17] Because Barber was convicted pursuant to a guilty plea, we also analyze his 

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

main types of ineffective assistance of counsel claims with regard to guilty 

pleas: failure to advise the defendant on an issue that impairs or overlooks a 

defense and incorrectly advising the defendant about penal consequences. 
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Manzano v. State, 12 N.E.3d 321, 326 (Ind. Ct. App. 2014), trans. denied; cert. 

denied, 135 S.Ct. 2376 (2015). Barber’s claim, that his trial counsel failed to 

investigate a possible defense, appears to fall into the first category. To 

establish a claim of ineffective assistance of trial counsel following a guilty plea

where the alleged error is one that would have affected a defense, the petitioner 

must show a reasonable probability of success on the merits. Segura, 749 

N.E.2d at 503. In other words, to show prejudice, Barber must prove that “a 

defense was indeed overlooked or impaired and that the defense would have 

likely changed the outcome of the proceeding.” Maloney v. State, 872 N.E.2d 

647, 650 (Ind. Ct. App. 2007).

[18] Barber contends that had Luber investigated his competency and requested a 

competency hearing, there is a reasonable probability he would have been 

found incompetent. A defendant is not competent to stand trial when he is 

unable to understand the proceedings and assist in the preparation of his 

defense. Mast v. State, 914 N.E.2d 851, 856 (Ind. Ct. App. 2009), trans. denied; 

see also Ind. Code § 35-36-3-1(a). Due process precludes convicting and 

sentencing an incompetent defendant. Gross v. State, 41 N.E.3d 1043, 1047 

(Ind. Ct. App. 2015). Indiana statutes “control the appropriate way to 

determine a defendant’s competency and, if necessary, to commit the defendant 

and provide restoration services.” Curtis v. State, 948 N.E.2d 1143, 1153 (Ind. 

2011); Ind. Code ch. 35-36-3. When there is reason to believe a criminal 

defendant lacks the ability to understand court proceedings and assist his 

attorney, the trial court should set a hearing and appoint two or three 
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disinterested professionals to evaluate his competency. Gross, 41 N.E.3d at 

1047; see also Ind. Code § 35-36-3-1(a). If, after a hearing at which evidence 

pertaining to the defendant’s competency is presented, the trial court determines 

the defendant lacks the ability to understand the proceedings and assist in the 

preparation of his defense, the trial will be delayed while the defendant 

undergoes competency restoration services. Ind. Code § 35-36-3-1(b). But the 

right to a competency hearing is not absolute. Campbell v. State, 732 N.E.2d 

197, 202 (Ind. Ct. App. 2000). Such a hearing is required only when the trial 

court is confronted with evidence creating a bona fide doubt as to a defendant’s 

competency. Mast, 914 N.E.2d at 856. The presence of indicators that would 

require the court to conduct a hearing under Indiana Code section 35-36-3-1 are 

determined on the facts of each case. Id. 

[19] Here, the evidence Barber presented at the post-conviction hearing does not 

lead unerringly and unmistakably to the conclusion that his trial counsel’s 

performance fell below an objective standard of reasonableness with regard to 

investigating Barber’s competence. During the underlying criminal 

proceedings, Luber was aware that Barber was illiterate, but noted at the postconviction hearing that “[n]ot being able to read does not necessarily mean that 

you’re low intellectual level [and] the fact that you can read doesn’t necessarily 

mean that you don’t have a deficiency in your comprehension and 

understanding.” Tr., Vol. 2 at 15-16. At Barber’s plea hearing, Luber indicated 

that when he read the plea agreement to Barber, Barber asked several questions 

and Luber explained certain terms and phrases to him. At Barber’s sentencing 
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hearing, Luber told the trial court that Barber “doesn’t function at a very high 

level,” but noted that he had “some intelligence” and was reliable and able to 

complete assigned tasks. Trial Exhibits, Vol. 3 at 7. The DOC report indicated 

that he “possess[ed] enough mental attributes” to overcome his illiteracy. Id. at 

9. And the trial court, in front of which Barber had appeared numerous times 

and which received the DOC diagnostic report, apparently believed that when 

Barber said he had no mental condition that would prevent him from 

understanding the proceedings and making appropriate decisions, he was telling 

the truth. At the post-conviction hearing, Luber testified that he did not recall 

the specifics of Barber’s case, but that he generally asked questions of his clients 

that would give him “signals” as to a client’s comprehension and if he did not 

think someone was understanding what was going on, “it usually [got] raised.” 

Tr., Vol. 2 at 12-13. He did recall that Barber was “clearly in the functioning 

level” and he did not think there was any reason to question that Barber was 

competent to understand the proceedings and assist in his defense. Id. at 14.

[20] Dr. Cates opined Barber would not have been competent in 1993; however, his 

testimony mostly concerned Barber’s intellectual and adaptive state years after 

the guilty plea. Even accepting Dr. Cates’ opinion in 2019 that Barber was not 

competent twenty-five years earlier, Dr. Cates also stated that although he can 

generally assess people’s IQ even before receiving test results, he was surprised 

after meeting Barber that his scores were so low. If Barber presented to an 

expert in the field as functioning at a higher level than his scores would 
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indicate, we cannot say that Luber should have been able to recognize his 

competency might be an issue. 

[21] We also note that during the underlying proceedings in 1993, the State 

considered filing an habitual offender enhancement against Barber, indicating 

that he had at least two prior felony convictions at that time. See Ind. Code § 

35-50-2-8 (1990). Despite Dr. Cates’ testimony that the historical data “spoke 

in terms of a mild mental retardation consistently across time[,]” Tr., Vol. 2 at 

28, there is no evidence in the record that Barber’s competency was questioned

during those earlier proceedings. And given the fact that Barber appeared 

before the trial court on ten occasions in this case and the trial court found no 

reason to question Barber’s competency, we cannot say that if Luber had filed a 

request for a competency examination, the trial court would have had a bona 

fide doubt about his competency, granted the request, and found him 

incompetent. See Campbell, 732 N.E.2d at 202 (“A trial judge’s observations of 

a defendant in court are an adequate basis for determining whether a 

competency hearing is necessary[.]”).

[22] Under these facts and circumstances, Barber has failed to prove by a 

preponderance of the evidence that Luber’s performance was deficient in 

overlooking a valid defense or that the defense, if raised, would have likely 

changed the outcome of this proceeding. See Maloney, 872 N.E.2d at 650. 

There is simply no contemporaneous evidence that casts doubt on his 

competence in 1993. Therefore, the post-conviction court did not clearly err in 
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determining that Luber’s failure to investigate Barber’s competence or seek a 

competency hearing was not ineffective assistance.

IV. Knowing and Voluntary Guilty Plea

[23] Barber also claims that he is entitled to post-conviction relief because his guilty 

plea was not knowing and voluntary as he was incompetent at the time he 

entered the plea. Because a guilty plea constitutes a waiver of constitutional 

rights, the defendant’s decision to plead guilty must be knowing, voluntary, and 

intelligent. Davis v. State, 675 N.E.2d 1097, 1102 (Ind. 1996). But a defendant 

cannot knowingly and voluntarily waive his constitutional rights if he is not 

sufficiently competent to do so. See Suldon v. State, 580 N.E.2d 718, 720 (Ind. 

Ct. App. 1991). As stated above, a defendant is not competent when he is 

unable to understand the proceedings and assist in the preparation of his 

defense. Ind. Code § 35-36-3-1(a). The conviction of an incompetent defendant 

is a denial of due process. Faris v. State, 901 N.E.2d 1123, 1125 (Ind. Ct. App. 

2009), trans. denied.

[24] Barber argues that Dr. Cates’ testimony shows he was incompetent in 1993 and 

asserts that his conviction and sentence should be vacated as a result. A

petitioner may make a substantive due process competency claim by alleging 

that he was, in fact, tried and convicted while incompetent. James v. Singletary, 

957 F.2d 1562, 1571 (11th Cir. 1992). Trying an incompetent defendant is an 

undue process regardless of whether any person could have or should have 

diagnosed the defendant’s incompetency at the time. Id. at 1573. Thus, our 
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decision regarding ineffective assistance of counsel, though informative, is not 

dispositive of this claim. To prove a substantive competency claim, the 

petitioner must present clear and convincing evidence “creating a ‘real, 

substantial, and legitimate doubt’ as to his competence[.]” Medina v. Singletary, 

59 F.3d 1095, 1106 (11th Cir. 1995) (quoting James, 957 F.2d at 1573).

[25] We note at this point that Barber essentially asked the post-conviction court, 

and now this court, to determine whether or not he was competent in 1993 

based on the testimony given at the post-conviction hearing. However, as 

noted above, when there is a bona fide reason to believe a defendant is 

incompetent, the procedures to be followed are outlined in Indiana Code 

section 35-36-3-1, which requires the appointment of at least two medical 

professionals to examine the defendant and testify at an evidentiary hearing. At 

the evidentiary hearing, “other evidence relevant to whether the defendant has 

the ability to understand the proceedings and assist in the preparation of the 

defendant’s defense may be introduced.” Ind. Code § 35-36-3-1(b). The postconviction hearing was not the required evidentiary hearing. Thus, the only 

relief that could be granted here is to remand the issue to the trial court to 

conduct the appropriate competency hearing if Barber’s evidence shows a “real, 

substantial, and legitimate doubt” about his competence in 1993. Medina, 59 

F.3d at 1106; see also James, 957 F.2d at 1575 (court, after reviewing petitioner’s 

allegations of actual incompetency and finding that he presented clear and 

convincing evidence raising a substantial doubt as to his competency, 

remanding to the district court to conduct an evidentiary hearing on his claim).
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[26] Twenty-four years passed between Barber’s guilty plea and his petition alleging 

he was incompetent at the time he pleaded. Barber’s evidence that he was 

incompetent in 1993 consists primarily of evidence that he was illiterate and 

had a low IQ. However, as Luber pointed out, an inability to read does not 

necessarily equate to an inability to understand and vice versa. See Tr., Vol. 2 

at 34, 36. And a low IQ does not necessarily indicate an inability to 

comprehend legal proceedings, especially where the defendant is assisted by 

counsel, adequately advised of his rights, and has experience with the criminal 

courts. See Anness v. State, 256 Ind. 368, 370-71, 269 N.E.2d 8, 10 (1971) 

(addressing defendant’s waiver of the right to trial by jury). Barber also relies 

on Dr. Cates’ opinion, based on his review of historical data and the results of 

tests he conducted, that Barber’s “competence in 1993 would not have been 

there.” Tr., Vol. 2 at 43. But in reaching that opinion, Dr. Cates disregarded 

some of the historical data as irrelevant and the earliest data he cited was from 

1999, six years after Barber pleaded guilty. Additionally, Dr. Cates’ testing was 

conducted after Barber suffered a stroke. Although Dr. Cates expressed a clear 

opinion, the post-conviction court was free to reject the expert testimony. See

Fisher, 810 N.E.2d at 679 (stating the post-conviction court is the sole judge of 

witness credibility). 

[27] Barber contends that all the evidence from the post-conviction hearing leads to 

only one conclusion: that he was incompetent when he pleaded guilty. See

Reply Brief of Petitioner-Appellant at 11. However, Barber offered no 

contemporaneous medical or psychological evidence of his competence in 
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1993. Neither Luber nor the trial court, who were in the position to interact 

with Barber before and during the proceedings, indicated any concerns about 

Barber’s competence at the time. And Luber testified at the post-conviction 

hearing that although Barber had an intellectual disability, his interactions with 

Barber during the proceedings in 1993 did not lead him to believe Barber’s 

competence was an issue. The transcripts of the guilty plea and sentencing 

hearings show that Barber affirmatively denied any mental defect affecting his 

ability to understand the proceedings and make decisions, and he responded 

appropriately to all questions posed to him in court. Thus, all the 

contemporaneous evidence from 1993 indicates Barber was competent to 

knowingly and voluntarily enter a guilty plea and the contrary evidence offered 

by Barber fails to create a real, substantial, and legitimate doubt as to that fact.

[28] Barber did not show the evidence as a whole leads unerringly and unmistakably 

to the conclusion that he was incompetent when he pleaded guilty in 1993. 

Therefore, the post-conviction court did not clearly err in denying Barber’s 

claim for post-conviction relief.

Conclusion

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

conviction that a mistake has been made: Barber did not prove by a 

preponderance of the evidence that his trial counsel was ineffective in failing to 

request a competency hearing or that he was in fact incompetent at the time he 
Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020 Page 21 of 22

pleaded guilty. We therefore affirm the post-conviction court’s order denying 

Barber’s petition for post-conviction relief.

[30] Affirmed.

Pyle, J., concurs.

Mathias, J., concurs with separate opinion.
Court of Appeals of Indiana | Opinion 19A-PC-1234 | January 15, 2020 Page 22 of 22

I N T H E

COURT OF APPEALS OF INDIANA

Charles E. Barber,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent,

Court of Appeals Case No.

19A-PC-1234

Mathias, Judge, concurring.

[1] I write only to reiterate that competency evaluations immediately upon arrest 

are the best way for our criminal justice system to fairly treat those defendants 

who are mentally ill or deficient. At some point, such immediate competency 

evaluations will be recognized as an integral part of due process. See Wampler v. 

State, 67 N.E.3d 663 (Ind. 2017).