MEMORANDUM DECISION                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                         Apr 22 2016, 6:03 am

this Memorandum Decision shall not be                                               CLERK
                                                                                Indiana Supreme Court
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                                                                                     and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Stephen T. Owens                                          Gregory F. Zoeller
Public Defender of Indiana                                Attorney General of Indiana

William D. Polansky                                       Justin F. Roebel
Deputy Public Defender                                    Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Raymond Lamont Hawkins,                                   April 22, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1507-PC-987
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Kurt M. Eisgruber,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49G01-0303-PC-41722




May, Judge.


Court of Appeals of Indiana | Memorandum Decision 49A02-1507-PC-987 | April 22, 2016                Page 1 of 8
[1]   Raymond Hawkins appeals the denial of his petition for post-conviction relief.

      As Hawkins’s counsel was not ineffective for declining to investigate certain

      witnesses, we affirm.


                                  Facts and Procedural History
[2]   At about 3:30 the morning of March 16, 2003, A.S. drove to the Watering

      Hole, a neighborhood bar, to leave a note on her boyfriend’s truck. Her six-

      year old daughter and six-week old son were with her. As she walked back

      from the truck, she was approached by a man who propositioned her. Hawkins

      intervened and told the man to leave A.S. alone. The man left, then Hawkins

      began propositioning A.S. A.S. tried to leave, but Hawkins walked in front of

      her. As she was entering her car, Hawkins pulled her hair, put a gun to her

      neck, and told her that she better do what he said or her children would die.

      A.S. and Hawkins got into her car.


[3]   Hawkins told A.S. to drive. He eventually told A.S. to park and ordered her to

      get out of the car. Hawkins grabbed A.S.’s arm, put a gun to her side, and

      threatened to shoot her. He pushed A.S. to a wooded area near a building.

      Hawkins demanded A.S. perform oral sex, and she complied. He then raped

      her. He threatened A.S. and her children, then produced a tape recorder and

      recorded A.S. saying things he demanded she say.


[4]   Hawkins pointed the gun at A.S. and robbed her. A.S. handed Hawkins the

      five dollars she had with her and they returned to her car. He drove to an alley

      just off State Street and demanded to see A.S.’s license. He then threatened

      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-PC-987 | April 22, 2016   Page 2 of 8
      her, saying “I got a picture and I got your address. If you ever tell anybody, I’ll

      come and kill you and your kids.” (Tr. at 62.) Hawkins exited the car, took a

      duffel bag filled with diapers, bottles, and children’s clothing, and a bag of food

      A.S. had recently purchased, then ordered A.S. to drive away with her lights

      switched off.


[5]   A.S. drove to a friend’s house where she beat on the door, crying and hollering,

      and told her friend she had been threatened, raped, and robbed. A.S. called the

      police. After an examination at a hospital, DNA testing revealed Hawkins’

      DNA in the swab samples taken from A.S. A.S. identified Hawkins in a photo

      array. Police officers arrested Hawkins at his mother’s home later that day and

      executed a search warrant. They did not find a gun, A.S.’s identification, or the

      duffel bag, but they did find a grocery bag of food. Hawkins’ mother said the

      food belonged to Hawkins. The items in the bag matched those on A.S.’s

      grocery receipt.


[6]   The State charged Hawkins with twelve counts, including rape, criminal deviate

      conduct, carjacking, criminal confinement, and intimidation. It also charged

      Hawkins as an habitual offender. A jury found Hawkins guilty of rape and

      criminal deviate conduct, and acquitted him of the other charges. Hawkins

      waived a jury trial for the habitual offender adjudication and the trial court

      found him guilty.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-PC-987 | April 22, 2016   Page 3 of 8
[7]   On direct appeal, Hawkins challenged the sufficiency of the evidence. We

      affirmed. Hawkins then petitioned for post-conviction relief, which petition

      was denied.


                                     Discussion and Decision
[8]   Post-conviction proceedings are not “super appeals”; rather, those proceedings

      afford petitioners a limited opportunity to raise issues that were unavailable or

      unknown at trial and on direct appeal. Wilkes v. State, 984 N.E.2d 1236, 1240

      (Ind. 2013). Post-conviction proceedings are civil in nature, and petitioners

      bear the burden of proving their grounds for relief by a preponderance of the

      evidence. Id. We accept the post-conviction court’s findings of fact unless they

      are clearly erroneous, but we do not defer to its conclusions of law. State v.

      Hollin, 970 N.E.2d 147, 151 (Ind. 2012). We may not reweigh the evidence or

      assess the credibility of the witnesses. Id. at 150.


[9]   To succeed on a claim of ineffective assistance of counsel, a petitioner must

      show not only that his trial counsel’s representation fell below an objective

      standard of reasonableness, but also that the deficient performance resulted in

      prejudice. To establish prejudice, a petitioner must show that counsel’s errors

      were so serious as to deprive him of a fair trial because of a reasonable

      probability that, but for counsel’s unprofessional errors, the result would have

      been different. Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002), cert. denied;

      Benefield v. State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011). A reasonable




      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-PC-987 | April 22, 2016   Page 4 of 8
       probability is a probability sufficient to undermine confidence in the outcome.

       Id.


[10]   There is a strong presumption that counsel rendered adequate assistance and

       made all significant decisions in the exercise of reasonable professional

       judgment. Id. Counsel is afforded considerable discretion in choosing strategy

       and tactics, and these decisions are entitled to deferential review. Id. at 746-47.

       Isolated mistakes, poor strategy, inexperience, and instances of bad judgment

       do not necessarily render representation ineffective. Id. at 747. On appeal, we

       do not second guess counsel’s strategic decisions requiring reasonable

       professional judgment even if the strategy or tactic, in hindsight, did not best

       serve the defendant’s interests. Elisea v. State, 777 N.E.2d 46, 50 (Ind. Ct. App.

       2002). If a claim of ineffective assistance can be disposed of by analyzing the

       prejudice prong alone, we will do so. Benefield v. State, 945 N.E.2d 791, 797

       (Ind. Ct. App. 2011).


[11]   Effective representation requires adequate pretrial investigation and

       preparation, but we resist judging an attorney’s performance with the benefit of

       hindsight. McKnight v. State, 1 N.E.3d 193, 200 (Ind. Ct. App. 2013).

       Accordingly, when deciding a claim of ineffective assistance for failure to

       investigate, we give a great deal of deference to counsel’s judgments. Id. at 201.

       Strategic choices made after thorough investigation of law and facts relevant to

       plausible options are virtually unchallengeable, and strategic choices made after

       less than complete investigation are reasonable precisely to the extent that

       reasonable professional judgments support the limitation on investigation. Id.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-PC-987 | April 22, 2016   Page 5 of 8
       In other words, counsel has a duty to make reasonable investigations or to

       make a reasonable decision that makes particular investigations unnecessary.

       Id.


[12]   As counsel’s decision not to investigate the witnesses 1 Hawkins offered was a

       reasonable strategic choice, we may not reverse. Hawkins admitted having sex

       with A.S., but testified at trial it was consensual and based on a “sex-for-drugs”

       agreement. He testified he had met A.S at the Watering Hole a year earlier,

       and since then they had engaged in at least two sex-for-drugs transactions. He

       testified A.S. might have falsely accused him of rape because she was angry that

       she had dropped the rock of cocaine Hawkins had given her and he would not

       give her any more to replace it. A.S. testified she had never seen Hawkins

       before or gotten drugs from him.


[13]   Hawkins now argues counsel should have secured witnesses, particularly one

       named Nicole Welch, who could have provided evidence that A.S. and




       1
         One witness Hawkins argues his counsel should have presented did not appear to have evidence that would
       support Hawkins’ premise that he and A.S. knew each other. Jennifer Luna testified at the post-conviction
       hearing that she worked at the Watering Hole when A.S. and Hawkins were both patrons there, but she said
       only that she was “pretty sure” they had both been there at the same time. She couldn’t “place them at the
       same table together.” (Tr. at 20.)
       The other witness Hawkins argues should have been presented, Nicole Welch, testified at the post-conviction
       hearing that she had seen Hawkins and A.S. together before the rape accusation. In its findings and
       conclusions the post-conviction court said Welch “stated that on one occasion, she saw the victim and
       Defendant together at a gas station,” and she “did not testify as to any specific interaction between
       Defendant and the victim.” (Findings and Conclusions at 7.)
       Welch’s testimony was not so limited. The post-conviction court’s findings do not acknowledge Welch’s
       testimony that she not only saw the two “together at a gas station,” (Tr. at 15), but they were in a car, and it
       was A.S.’s car. Welch also testified she had seen Hawkins and A.S. “quite a few places.” (Id.)

       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-PC-987 | April 22, 2016                  Page 6 of 8
       Hawkins knew each other. Such evidence, he argues, would have indicated

       A.S. was not being truthful and “[s]uch a material diminution of A.S.’s

       credibility would have given Mr. Hawkins a reason-able [sic] shot at an

       acquittal.” (Br. of Petitioner-Appellant at 16.)


[14]   Hawkins’ counsel testified he believed the defense that Hawkins and A.S. had

       engaged in sex-for-drugs transactions and the sex was consensual “just . . .

       didn’t make any sense.” (Tr. at 58.) Counsel interviewed A.S. and found her

       “extremely emotional” with emotion that was “sincere and . . . not consistent

       with somebody who . . . would have reported [Hawkins] as having committed

       what appeared to be from the materials a vicious sexual assault because he

       refused to give her additional drugs.” (Id.) A.S. would have been “a very

       sympathetic figure from what appeared to be very sincere emotion.” (Id.)

       Counsel believed it was unwise for Hawkins to testify the encounter was

       consensual because it would put Hawkins in a bad light as a drug dealer, and

       given A.S.’s demeanor, “it was a terrible line of questioning.” 2 (Id. at 48.)




       2
         Hawkins testified at his post-conviction hearing that he provided his counsel the names of several
       witnesses, including “Nikki Welch.” (Tr. at 10.) In its Statement of the Facts and again in the Argument
       section of its brief, the State notes trial counsel’s testimony that at some point during his preparation, he
       considered a possible witness named “Nikki,” but counsel’s notes indicated Hawkins did not want her called
       as a witness because she was a “crackhead” and he didn’t know what she would say. (Id. at 55.) The State
       offers that testimony to support its argument that not “procuring witnesses of very limited – if any – value,”
       (Br. of Appellee at 16), was a strategic choice.
       We decline to consider that part of the State’s argument. The record reflects this case involved two persons
       called “Nikki,” but the State does not appear to acknowledge in its brief anyone called “Nikki” other than
       Nicole Welch. That omission suggests the witness “Nikki” that Hawkins did not want because she was a
       “crackhead” must have been Welch. But the State does not direct us to anything in the record to indicate the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-PC-987 | April 22, 2016               Page 7 of 8
[15]   Counsel’s decision not to call Nicole Welch as a witness was a reasonable

       strategic choice we will not second-guess, and we must therefore affirm.


[16]   Affirmed.


       Najam, J., and Riley, J., concur.




       “Nikki” that Hawkins did not want called as a witness was Welch, who is the person Hawkins argued his
       counsel should have investigated and presented as a witness at trial.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-PC-987 | April 22, 2016          Page 8 of 8