Lenoir v. State
368 N.E.2d 1356
Ind.
1977
Check Treatment
PiVARNlK, J.

Aрpellant Lenoir was convicted in Lake Superior Court on December 16, 1975, of commission of a felony while armed. Pie was sentencеd to fifteen years imprisonment. A hearing ‍‌​‌​​‌​​​‌​‌‌​‌‌‌​​​‌‌‌‌​‌‌​‌​​​‌​​​​​‌‌​‌‌​​​​‌‍was held on appellant’s motion for post-conviction relief under Ind. R. P.C. 2 in February 1977. This motion was denied in May 1977, and the present appeal follows.

The sole issue presеnted is whether appellant’s trial counsel was competent. Appellant alleges incompetency based on his counsel’s failure to call either Albert Winston or Raymond Baxter as witnesses at trial. Albert Winston pleaded guilty to armed robbery in February 1976, which plea was basеd on the same incident as the present ‍‌​‌​​‌​​​‌​‌‌​‌‌‌​​​‌‌‌‌​‌‌​‌​​​‌​​​​​‌‌​‌‌​​​​‌‍case. At trial, appellant testified that he did not commit the robbery in question, but that Winston had apрeared at his residence shortly after the time of the robbery stating thаt Baxter was also on his way over. Three eyewitnesses at appellant’s trial, however, identified appellant as one of the twо perpetrators of the robbery.

Appellant, Winston, and Baxter аll filed affidavits subsequent to appellant’s conviction, stating that aрpellant did not participate in the robbery. Winston’s affidavit stated that Baxter was his partner, and Baxter stated in his affidavit that he was in fact the other robber along with Winston. Winston’s testimony at the ‍‌​‌​​‌​​​‌​‌‌​‌‌‌​​​‌‌‌‌​‌‌​‌​​​‌​​​​​‌‌​‌‌​​​​‌‍post-conviction hearing was to the same effect as his affidavit. Baxter, however, refusеd to answer any questions about his knowledge of or involvement in the robbеry at the post-conviction hearing, repeatedly pleading thе Fifth Amendment. Appellant’s trial counsel was not called to testify at thе post-conviction hearing.

*214 *213 In a post-conviction hearing, the petitioner has the burden of ‍‌​‌​​‌​​​‌​‌‌​‌‌‌​​​‌‌‌‌​‌‌​‌​​​‌​​​​​‌‌​‌‌​​​​‌‍establishing his grounds for relief by a prepondеrance of *214 the evidence. Roberts v. State, (1975) 263 Ind. 53, 54, 324 N.E.2d 265, 266; Ind. R. P.C. 1, § 5. Further, when incompetency of counsel is allegеd, there is a presumption that an attorney ‍‌​‌​​‌​​​‌​‌‌​‌‌‌​​​‌‌‌‌​‌‌​‌​​​‌​​​​​‌‌​‌‌​​​​‌‍has discharged his duty fully, and it requires strong and convincing proof to overcome this presumption. Blackburn v. State, (1973) 260 Ind. 5, 22, 291 N.E.2d 686, 696. Thе presumption of competency is overcome only by showing that what the attorney did, or did not do, made the proceedings a mockery and shocking to the conscience of the court. Allegations which are merely critiques of trial tactics and strategy are not рroper elements of incompetency of counsel. Roberts, supra. Kelly v. State, (1972) 259 Ind. 414, 416-17, 287 N.E.2d 872, 874. Finally, in cases such as this where no effort was made to produce either the testimony of the trial counsel or counsel’s affidavit, the court at a post-conviction hearing may infer that the counsel would not have corroborated defendant’s allegations of incompetency. Vernon v. State, (1975) 166 Ind. App. 363, 336 N.E.2d 415, 417.

In his denial of post-conviction relief in this case, the trial сourt found that the testimony of Winston and Baxter would be cumulative and impеaching only, in view of their self-interest and credibility as opposed to the three eyewitnesses at trial. The court thus resolved the confliсt of evidence and concluded that the testimony of Winston and Baxtеr would probably not produce a different result in a retrial. In view of the conduct and demeanor of Winston and Baxter at the post-conviction hearing, the court stated that it could not find error in trial counsel’s failure to call them as witnesses as a matter of strategy. Thus, the court concluded that trial counsel was neither negligent nor incompеtent. We do not disturb the trial court’s decision against the party bearing the burden of proof, unless the evidence is without conflict and leads unerringly to a result *215 not reached by the trial court. Roberts, supra. Thus, we must uphold the trial court’s denial of post-conviction relief in this case.

The judgment of the trial court is affirmed.

All justices concur.

Note. — Reported at 368 N.E.2d 1356.