Opinion
Court of Appeals Case No. 21A-PC-218
06-09-2021
Timothy JOHNSON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
Attorney for Appellant: Lisa M. Johnson, Brownsburg, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, Indiana
Attorney for Appellant: Lisa M. Johnson, Brownsburg, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, Indiana
MEMORANDUM DECISION
Riley, Judge.
STATEMENT OF THE CASE
[1] Appellant-Defendant, Timothy Johnson (Johnson), appeals the denial of his petition for post-conviction relief.
[2] We affirm.
ISSUES
[3] Johnson presents two issues on appeal, which we restate as:
(1) Whether Johnson received ineffective assistance from Trial Counsel; and
(2) Whether Johnson was prejudiced by Trial Counsel's performance at sentencing.
FACTS AND PROCEDURAL HISTORY
[4] The relevant facts, as set forth in this court's memorandum decision in Johnson's direct appeal, are as follows:
At some time late on June 18, 2007, in Fort Wayne, Johnny Green called Johnson, his cousin, from whom he had been purchasing crack for more than a year. Green wanted to purchase $40.00 worth of crack cocaine. When Johnson (accompanied by Gabe Mosley) met Green to deliver the crack cocaine, Green only had $30.00; nevertheless, Johnson sold him $40.00 of crack cocaine for the $30.00—because [he had] "been a good customer." Less than two hours later, Green called Johnson again; Green said he had $20.00 and wanted to purchase more crack cocaine. When Johnson (again accompanied by Mosley) arrived to deliver the crack cocaine, Green "only had five dollars ... [s]o [Johnson] asked him for his cell phone" in exchange for "forty worth" of crack cocaine.
Green had been reselling some of the crack cocaine he purchased, and after Johnson acquired the phone, he was able to sell to Green's customers. Less than two hours after the second transaction, Green called Johnson again [ ] saying "he had some more money" and wanted more "crack cocaine." Johnson told Green where to meet him. Green arrived on his bicycle, "hopped off of it" at the corner of Drexel and Gaywood in Fort Wayne, and walked to meet Johnson and Mosley. When Johnson asked how much money he had, Green said he had no money but "needed" some crack cocaine on credit. Johnson said, "I can't do it no more." Green demanded his cell phone back, and Johnson countered with a request for Green's bicycle. "[Green] said no." Johnson and Green argued, with Green "want[ing] the drugs," and Johnson refusing to "give him ... more credit." A physical altercation ensued, and Mosley joined Johnson in fighting Green. Screaming, and with blood on his shirt, Green fled from Johnson and Mosley, who also ran away from the scene.
Green had been stabbed fifteen times in his chest, abdomen, arms, leg, scalp, and back. Staggering, Green left a trail of blood, to the corner and then to the houses along Drexel. The blood trail showed that he approached several houses.
At the fifth house on Drexel, Stacey Curry and his nephew, Jerve Wright, were playing video games at approximately 3:00 a.m. when they heard a faint knock at the front door. Curry opened the door, and they saw Green bleeding and slouched against the door post. Gree[n] told them his name and that he had been stabbed. As Green started to collapse, Curry caught him. Wright call[ed] the police, and Curry tried to staunch Green's bleeding with towels. Repeatedly, Green said that "they" had "stabbed [him]," and asked whether "they" were coming after him. As Green struggled to breathe and blood oozed from multiple wounds, "he still kept on saying, are they coming and that he was going to die ... he just kept on saying that."
Within five minutes, Fort Wayne Police Department Officer Jason Fuhrman arrived at the Curry house in response to a reported stabbing. He found Green lying on the front porch, bloody and having difficulty breathing. Fuhrman lifted Green's shirt and saw multiple stab wounds to his chest and abdomen; he asked what had happened. Green answered, "They tried to take my bike." After eliciting Green's name and age, Fuhrman asked "how many people there were," and Green "held up two fingers." Fuhrman observed that Green was "going downhill." Fuhrman "asked him if they were black," and Green "nodded." Officer David Wilkins had also responded, and observed Green lying on the porch, his shirt "covered in blood" and "a lot of blood on the .. porch." Wilkins "could hear that he was having problems breathing."
Medics arrived and transported Green to the hospital. Shortly thereafter, he died as a result of multiple stab wounds to the chest and abdomen.
The "day after [his] son got killed," Green's father was contacted by his nephew—Johnson's father—and asked "to come over." There, Johnson "didn't want to talk" but Johnson's father "told him, go on, tell him." Johnson told Green's father that Johnson had wanted Green's bike; Green refused to give it to him; "[t]hey got into it"; Green "choked" Johnson; and then some "other boy was stabbing [Green]."
On May 15, 2008, Detective James Seay interviewed Johnson. Johnson stated that Green had wanted his cell phone back, got mad, grabbed Johnson, and started choking him. Johnson further stated that Green then grabbed Mosley as well, and the three had gone to the ground and "tussl[ed]" for approximately thirty seconds. Johnson admitted to Seay that Mosley had stabbed Green, but insisted that he had not seen him stab Green or even seen him have a knife.
Johnson v. State, 02A05-1303-CR-113, slip op. at 10 (Ind. Ct. App. Apr. 6, 2010) (footnotes and record citations omitted).
[5] On August 5, 2008, the State filed an Information, charging Johnson with murder, a felony, Class A felony murder, and Class A felony attempted robbery. A two-day jury trial was conducted on June 2-3, 2009. At the close of the evidence, the jury returned a guilty verdict on the murder charge. The jury hung on the felony murder and attempted robbery charges, a mistrial was declared for the two charges, and the State later dismissed those charges.
[6] Ahead of the sentencing hearing, Trial Counsel sent Johnson the presentencing investigation report (PSI) to review. On July 6, 2007, the trial court conducted a sentencing hearing. At the beginning of the sentencing hearing, the trial court asked Johnson if he had any additions or corrections to the PSI. Johnson testified that he had reviewed the PSI and he corrected a perceived mistake in the investigation. When the trial court asked Trial Counsel if he had "any evidence or any remarks to present," Counsel stated: "Judge, I see that Mr. Johnson has some comments written down and I suspect that will be our presentation today." (Sentencing Tr. p. 5). In his allocution, Johnson blamed Mosley for the killing, asked for Green's family to forgive him, and claimed he made a "bad decision because [he] was young and didn't know right from wrong." (Sent. Tr. pp. 6-7). After Johnson's allocution, Trial Counsel indicated that the trial court had "some certificates and some statements that have been generated by his participation in educational opportunities at the jail." (Sent. Tr. p. 7). Then Johnson's father, who had not been called as a witness, stood up and introduced himself, and requested that the trial court consider showing mercy to Johnson in his sentence. The trial court then sentenced Johnson to sixty years in the Department of Correction. Johnson appealed his conviction claiming that the trial court had abused its discretion by admitting Officer Fuhrman's hearsay testimony, and that the State had not proved beyond a reasonable doubt that he committed Green's murder. We affirmed his conviction.
[7] On May 10, 2017, Johnson filed a petition for post-conviction relief, alleging that Trial Counsel was ineffective for failing to tender jury instructions on self-defense, defense of another, and the lesser-included offenses of voluntary manslaughter or reckless homicide. Johnson further claimed that Trial Counsel was ineffective for not calling a witness and for failing to present any mitigating evidence at sentencing. On July 15, 2020, Johnson amended his petition further alleging that he was prejudiced at sentencing by Trial Counsel's performance because Trial Counsel completely failed to subject the State's sentencing case to adversarial testing pursuant to United States v. Cronic , 466 U.S. 648 (1984).
[8] On August 14, 2020, the post-conviction court conducted a hearing. Trial Counsel testified that he was retired from the practice of law, he did not remember representing Johnson nor did he recall anything about the case. Trial Counsel described his normal practice as being able to rely on a trial court's jury instructions unless there was an issue that was unusual or contested. Trial Counsel also testified that he would normally prepare for sentencing by having his investigator review the PSI with the defendant and sometimes he "would review it with them." (PCR Tr. p. 11). Trial Counsel claimed that his preparation for sentencing "would vary with the client and circumstances." (PCR Tr. pp. 11-12). Johnson then testified that Trial Counsel only spoke to him once prior to trial and that they never discussed whether to tender jury instructions on lesser-included offenses or self-defense. Johnson additionally claimed that Trial Counsel did not meet with him before his sentencing hearing.
[9] Among the exhibits tendered at the post-conviction hearing, were two letters Johnson received from Trial Counsel. In the first letter, Trial Counsel discussed the pros and cons of presenting the defense of self-defense to the attempted robbery charge. In the second letter, which Trial Counsel sent a letter to Johnson ahead of his sentencing hearing, he also provided Johnson with a copy of his PSI and explained that he intended to challenge the murder conviction on appeal because the evidence seemed "very weak." (PCR Exh. 8, p. 25).
[10] At the close of the evidence, the post-conviction court took the matter under advisement and later issued findings of fact and conclusions thereon denying Johnson's petition for post-conviction relief based on Trial Counsel's performance at trial. The post-conviction court also rejected Johnson's claim that he was entitled to a presumption of prejudice under Cronic because Johnson failed to show that Trial Counsel completely failed to subject the State's sentencing case to adversarial testing.
[11] Johnson now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[12] Under the rules of post-conviction relief, the petitioner must establish the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5) : Strowmatt v. State , 779 N.E.2d 971, 974-75 (Ind. Ct. App. 2002). To succeed on appeal from the denial of relief, the post-conviction petitioner must show that the evidence is without conflict and leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. at 975. The purpose of post-conviction relief is not to provide a substitute for direct appeal, but to provide a means for raising issues not known or available to the defendant at the time of the original appeal. Id. If an issue was available on direct appeal but not litigated, it is waived. Id.
[13] Further, the post-conviction court in this case entered findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1, § 6. "A post-conviction court's findings and judgment will be reversed only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made." Little v. State , 819 N.E.2d 496, 500 (Ind. Ct. App. 2004), trans. denied. In this review, findings of fact are accepted unless clearly erroneous, but no deference is accorded to conclusions of law. Id. Additionally, we remind Johnson that he is not entitled to a perfect trial, but is entitled to a fair trial, free of errors so egregious that they, in all probability, caused the conviction. Averhart v. State , 614 N.E.2d 924, 929 (Ind. 1993).
II. Ineffective Assistance of Trial Counsel
[14] Johnson contends that he was denied the effective assistance of Trial Counsel. The standard by which we review claims of ineffective assistance of counsel is well established. In order to prevail on a claim of this nature, a defendant must satisfy a two-pronged test, showing that: (1) his counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's errors the result of the proceeding would have been different. Jervis v. State , 28 N.E.3d 361, 365 (Ind. Ct. App. 2015) (citing Strickland v. Washington , 466 U.S. 668, 690, 694, (1984)reh'g denied ), trans. denied. The two prongs of the Strickland test are separate and distinct inquiries. Id. Thus, "if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." Timberlake v. State , 753 N.E.2d 591, 603 (Ind. 2001) (quoting Strickland , 466 U.S. at 697 ) reh'g denied; cert. denied , 537 U.S. 839 (2002).
1. Jury Instructions
[15] Johnson argues that Trial Counsel was ineffective for failing to request jury instructions on the lesser included offenses of voluntary manslaughter and reckless homicide, and instructions on self-defense and defense of another. A trial court may accept a proposed instruction if: (1) it correctly states the law; (2) it is supported by the evidence; (3) it is not covered by the trial court's other instructions; and (4) it does not tend to mislead or confuse the jury. Nantz v. State , 740 N.E.2d 1276, 1283 (Ind. Ct. App. 2001), trans. denied. "[F]ailure to submit an instruction is not deficient performance if the court would have refused the instruction anyway." Williams v. State , 706 N.E.2d 149, 161 (Ind. 1999).
A. Voluntary Manslaughter
[16] Johnson claims that Trial Counsel violated prevailing professional norms when he failed to tender a jury instruction regarding the lesser included offense of voluntary manslaughter. Voluntary manslaughter is an inherently included lesser offense of murder, distinguished from murder by the presence of sudden heat. Wilson v. State , 697 N.E.2d 466, 474 (Ind. 1998). A person commits voluntary manslaughter when he knowingly kills another human being "while acting under sudden heat." I.C. § 35-42-1-3(a). For sudden heat to occur, there must be "sufficient provocation to engender passion which is demonstrated by anger, rage, sudden resentment, or terror that is sufficient to obscure the reason of an ordinary person, prevent deliberation and premeditation, and render the defendant incapable of cool reflection." Jackson v. State , 709 N.E.2d 326, 328 (Ind. 1999). "If the record contains any appreciable evidence of sudden heat, an instruction on voluntary manslaughter is justified." Roberson v. State, 982 N.E.2d 452, 456 (Ind. Ct. App. 2018).
[17] In its Order denying Johnson relief, the PCR court observed that the only evidence alleged to show sudden heat was Johnson's own testimony at trial that he was attacked by Green, was on the verge of losing consciousness when Green chocked him, and when Mosley started stabbing Green. Johnson's brief account suggested that Mosely was providing armed security for him during the drug transaction, and the PCR court found that if this version was credible then Green's alleged attack only "induced [Mosely] to do exactly what he appears to have come prepared to do." (PCR App. Vol. II, p.158). The post-conviction court further noted that even if Green had provoked Johnson by choking him and causing Johnson to be in a state of sudden heat, there was no evidence that Johnson's sudden heat induced Mosely to stab Green. In fact, Mosely did not testify explaining why he stabbed Green—as Johnson claimed—and the circumstances did not indicate Mosely was acting out of anger, rage, or sudden heat to obscure his reasoning during the stabbing.
[18] Because all the evidence at Johnson's trial went to show that a lesser-included instruction on voluntary manslaughter would have been inappropriate here, as there was no evidence of sudden heat, we conclude that Trial Counsel was not deficient in his performance for failing to tender that instruction. See Watts v. State , 885 N.E.2d 1228, 1232 (Ind. 2008) (holding that if there is no serious evidentiary dispute over sudden heat, it is error for a trial court to instruct a jury on voluntary manslaughter in addition to murder.)
B. Reckless Homicide
[19] Johnson also claims that a serious evidentiary dispute existed regarding whether Mosley knowingly or recklessly killed Green and that Trial Counsel was therefore ineffective in failing to tender an instruction on reckless homicide as a lesser included offense of murder.
[20] Our supreme court has stated that "[i]f the evidence warrants it, a requested instruction on [r]eckless [h]omicide should always be given in a case in which [m]urder has been charged." Wright v. State , 658 N.E.2d 563, 567 (Ind. 1995). The element "distinguishing murder and reckless homicide is the defendant's state of mind: reckless homicide occurs when the defendant ‘recklessly’ kills another human being, and murder occurs when the killing is done ‘knowingly’ or ‘intentionally.’ " Webb v. State , 963 N.E.2d 1103, 1106 (Ind. 2012). A person engages in conduct "knowingly" if the person is aware of a "high probability" that he or she is doing so. I.C. § 35-41-2-2(b). Reckless conduct is action taken in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct. I.C. § 35-41-2-2(c). Thus, the "determinative issue here is whether the evidence produced a serious evidentiary dispute concerning" Johnson's "state of mind that would justify giving the requested instruction." Webb , 963 N.E.2d at 1106.
[21] The post-conviction court found that there would have had to have been a serious evidentiary dispute in view of which the jury could have concluded that the "stabber may not have been aware of a high probability that the infliction of 15 stab wounds in the chest, abdomen, arms, leg, scalp, and back ... over an estimated period of 15 to 20 seconds ... would have caused the victim's death." (PCR App. Vol. II, p. 160). At Johnson's trial, neither Johnson nor Mosely provided testimony claiming that the stabbing occurred with reckless intent, and the PCR court found no such evidence. Instead, the post-conviction court found that the repeated and focused acts of stabbing were "closely comparable to numerous" Indiana cases where defendants charged with murder were found not to be entitled to instructions on reckless homicide. (PCR App. Vol. II, p. 161). See, e.g., Lyttle v. State , 709 N.E.2d 1, 3 (Ind. 1999) (defendant struck victim repeatedly with baseball bat); Griffin v. State , 963 N.E.2d 685, 691-92(Ind. Ct. App. 2012) (stabbed 12 times in neck). Because there was no serious evidentiary dispute as to reckless intent, Trial Counsel was not ineffective in failing to tender an instruction on reckless homicide as a lesser-included offense of murder.
C. Self Defense
[22] Indiana's self-defense statute provides:
A person: (1) is justified in using reasonable force, including deadly force, against any other person; and (2) does not have a duty to retreat; if the person reasonably believes that the force is necessary to prevent serious bodily injury to the person or a third person on the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.
I.C. § 35-41-3-2(c). Johnson argues that his theory at trial was that Green, who was much larger bodied person, was the initial aggressor. He claims that by "failing to tender [an] instruction on self-defense and defense of another, [Trial] [C]ounsel failed to implement his defense theory." (Appellant's Br. p. 19). The State argues that Johnson was not entitled to a self-defense instruction because the killing "arose from and was caused by a failed drug transaction." (Appellees’ Br. p. 26).
[23] Indiana Code section 35-41-3-2(g)(1) provides that "a person is not justified in using force if ... the person is committing or is escaping after the commission of a crime[.]" With respect to the limitation on the use self-defense set forth in Indiana Code section 35-41-3-2(g)(1), the Indiana Supreme Court recently stated that:
Although the self-defense statute instructs that a person cannot use force defending himself if he, among other things, "is committing ... a crime," [ ] we do not strictly apply that statute because "[t]he legislature is presumed to have intended the language used in the statute to be applied logically and not to bring about an unjust or absurd result." Instead, we have held that "there must be an immediate causal connection between the crime and the confrontation."
Gammons v. State , 148 N.E.3d 301, 304 (Ind. 2020) (citing Mayes v. State , 744 N.E.2d 390, 393-94 (Ind. 2001) ).
[24] Johnson contends that he presented evidence at his trial that Green initially attacked him and that Mosley retaliated and defended him by stabbing Green because Green attacked and choked him. Johnson therefore claims that Trial Counsel was ineffective for not tendering a self-defense or defense of another jury instruction, and he claims that had Trial Counsel offered such an instruction, there is reasonable probability that the jury would not have found him guilty of murder.
[25] On the day Green was murdered, Green gave Johnson $30 for $40 worth of cocaine, and Johnson testified that he gave Green a discount because Green was a good customer. Two hours after that transaction, Johnson, Mosely and Green, met again. Green agreed to let Johnson use his cellphone until the next day, in exchange for $20 worth of cocaine. Then two hours after the second meeting, Green called Johnson from a borrowed telephone, and they agreed to meet again. Johnson and Mosely arrived before Green, and Green rode his bicycle to the meeting. Green then informed Johnson that he did not have money, and he asked Johnson to give him more drugs on credit. Johnson refused, Green demanded his cellphone back, and Johnson countered with a request for Green's bicycle. Green refused, and Johnson and Green argued, with Green wanting more drugs and Johnson refusing to give him more drugs on credit. A physical altercation ensued, and Mosley joined Johnson in fighting Green. During the altercation, Mosely stabbed Green fifteen times and Green eventually died from those fatal stab wounds.
[26] While Johnson's argument that a self-defense or defense of another jury instruction was available to him might have merit if Green had solely attacked Johnson for refusing to sell drugs on credit; however, that is not what happened. The record shows that Johnson repeatedly sold drugs to Green and was intending to sell more drugs if Green supplied more money. This was an attempted drug sale that turned out to be a fatal confrontation when Johnson refused Green's alternative terms for the sale. The fatal confrontation would not have occurred but for Johnson's drug dealing activity, which negates his claim of self-defense or defense of another. Here, we find that there was "immediate causal connection" between the drug dealing and the murder of Green and Johnson was therefore not entitled to a self-defense instruction. See Gammons , 148 N.E.3d at 304. Thus, we hold that Trial Counsel was not ineffective for failing to offer a self-defense or defense of another jury instruction.
III. Sentencing
[27] Johnson claims that he was entitled to a presumption of prejudice under United States v. Cronic , 466 U.S. 648 (1984) because Trial Counsel's lack of effort at his sentencing amounted to a complete lack of adversarial testing.
In Cronic , the Supreme Court recognized that in certain limited circumstances of extreme magnitude, prejudice to a criminal defendant is so likely that an inquiry into counsel's actual performance is not required. Stated differently, a presumption of ineffectiveness arises in certain extreme circumstances without resort to the traditional two-prong Strickland analysis. The Court in Cronic identified three circumstances justifying such a presumption: (1) the complete denial of counsel; (2) situations where counsel entirely fails to subject the prosecution's case to meaningful adversarial testing; and (3) situations where surrounding circumstances are such that, "although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial."
Ward v. State , 969 N.E.2d 46, 77 (Ind. 2012) (quoting Cronic , 466 U.S. at 659-60 ) (citations omitted).
[28] In Bell v. Cone , 535 U.S. 685 (2002), the Supreme Court revisited Cronic in the sentencing context and emphasized that the Cronic exception is very narrow and is applied only in cases where counsel completely fails to provide representation. Id. at 696-97 (emphasis added). In Bell , defense counsel provided minimal assistance during the sentencing phase of a capital murder case. Id. at 686-87. Counsel interviewed no witnesses relevant to sentencing, presented no mitigation testimony from available witnesses, made no plea for petitioner's life, and offered no closing remarks. Id. Despite these shortcomings, the Supreme Court held that the petitioner failed to show that his attorney denied him representation "as a whole," and in the absence of a "complete" failure by counsel to represent the defendant, Cronic's presumption of prejudice did not apply. Id.
[29] The post-conviction court in the instant case found Johnson was not entitled to a presumption of prejudice because Johnson failed to show that Trial Counsel's lack of effort at sentencing amounted to a complete lack of adversarial testing. Johnson contends that this conclusion was not supported by the evidence because Trial Counsel "did nothing at sentencing. He did not call any witnesses, cross-examine the State's witness, object to any errors in the PSI, make any argument on Johnson's behalf, or make any sentencing recommendation." (Appellant's Br. p. 50). Johnson argues that the "sum total of counsel's participation at the sentencing hearing" was minimal at best and consisted of "yes" responses to the court's questions. (Appellant's Br. p. 50). Thus, Johnson argues that his claim fits within the second exception identified in Cronic because Trial Counsel failed to subject the State's case to meaningful adversarial testing at his sentencing hearing.
[30] In denying relief, the PCR court found as controlling this court's opinion in Lewis v. State 116 N.E.3d 1144, 1158-59 (Ind. Ct. App. 2018), trans. denied , which involved a nearly identical performance by the same attorney at another defendant's sentencing hearing. In Lewis, eighteen-year-old Lewis participated in the robbery and murder of two people, and a jury determined he was guilty of two Counts of robbery and two Counts of felony murder. Id. at 1149. His counsel declined to present any mitigating circumstances at sentencing, and the court imposed maximum, consecutive sentences of sixty-five years for each Count of felony murder. Id. at 1150. Later Lewis pursued post-conviction relief, in which he argued that his trial counsel failed to advocate on his behalf at sentencing, which resulted in prejudice. Id. This court observed that Cronic is limited to " ‘a very narrow set of cases in which the accused has effectively been denied counsel altogether[.]’ " Id. at 1159. (quoting Weaver v. Massachusetts , 137 S.ct. 1899, 1915 (2017) ). In denying relief, this court found that Lewis had not shown his counsel's lack of performance fell "within one of the limited circumstances of extreme magnitude that justify a presumption of ineffectiveness under Cronic ." Id. at 1159. The same result should be reached here.
[31] Ahead of his sentencing hearing, Trial Counsel sent Johnson the PSI to review. At his sentencing hearing, Johnson corrected a perceived mistake in the PSI and Johnson provided a statement in allocution. After Johnson's allocution, Trial Counsel advocated for leniency by stating that he was submitting "some certificates and some statements" showing that Johnson was participating in "educational opportunities at the jail." (Sent. Tr. p. 7). Unlike defense counsel in Bell , a complete review of the record shows that Johnson was prepared for sentencing by Trial Counsel. This evidence was weighed by the trial court who rejected the State's request for a maximum 65-year sentence and instead imposed a 60-year sentence for Johnson's murder conviction.
[32] Although Trial Counsel's role at Johnson's sentencing was minimal, Johnson has failed to demonstrate that Trial Counsel provided no legal assistance during a substantial portion of the sentencing phase and the record points to a considerably different story. Under these circumstances, Johnson has not shown that Trial Counsel's conduct at the sentencing hearing entirely failed to subject the State's case to meaningful adversarial testing. Therefore, we will not presume that Trial Counsel was ineffective at the sentencing hearing under Cronic .
CONCLUSION
[33] Johnson has failed to show that Trial Counsel rendered him ineffective assistance during his trial. Also, we conclude that Johnson was not prejudiced at his sentencing hearing. Thus, we affirm the post-conviction court's judgment denying Johnson's post-conviction relief.
[34] Affirmed
[35] Mathias, J. and Crone, J. concur