Allison Moore v. State of Indiana

Court of Appeals of Indiana | Memorandum Decision 26A-PC-1659 | October 20, 2026 Page 1 of 14
Pursuant to Ind. Appellate Rule 65(E), the trial court and parties shall not
take any action in reliance upon this memorandum decision until it is
certified.
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not
binding precedent for any court and may be cited only for persuasive value
or to establish res judicata, collateral estoppel, or law of the case.
I N T H E
Court of Appeals of Indiana
Allison Moore,
Appellant-Petitioner
v.
State of Indiana,
Appellee-Respondent
October 20, 2026
Court of Appeals Case No.
26A-PC-1659
Appeal from the Ripley Circuit Court
The Honorable Jeffrey L. Sharp, Judge
Trial Court Cause No.
69C01-2209-PC-3
Memorandum Decision by Judge Bradford

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Judges Bailey and Altice concur.
Bradford, Judge.
Case Summary
[1] In 2015, Allison Moore was convicted of murder, Class B felony burglary, and
Class B felony conspiracy to commit burglary and sentenced to an aggregate
105-year term of incarceration. After being denied relief on direct appeal,
Moore petitioned for post-conviction relief (“PCR”), which the trial court
denied. Moore contends that the post-conviction court erred in denying her
PCR request. We affirm.
Facts and Procedural History
[2] The underlying facts, as originally set forth in Moore’s direct appeal, are as
follows:
While having dinner on December 29, 2012, twenty-two-year-old
Ohio resident Moore asked her mother if she would “tell on”
Moore if Moore told her that she had killed someone. Moore’s
mother responded that she would, and Moore replied that she
would not confide in her mother if she ever did anything like
that.
After dinner, Moore and her fifteen-year-old neighbor D.H.
(“D.H.”) picked up D.H.’s friends, fifteen-year-old K.B.
(“K.B.”), fifteen-year-old S.N. (“S.N.”), and S.N.’s nineteen-
year-old brother Ben Nichols (“Nichols”). While they were
riding around in Moore’s car, D.H., who knew that S.N. carried

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a .40 caliber handgun, suggested stealing money and drugs from
Ryan Jackson (“Jackson”) in Cross Plains, Indiana. D.H.
claimed that he thought Jackson would have a “couple of
thousand dollars.”
The drive from Ohio to Cross Plains in Moore’s car took forty-
five minutes to an hour. Along the way, Moore and the young
men smoked marijuana. When they arrived at Jackson’s house,
Moore parked down the street. D.H. and S.N. covered their
faces with a mask, walked to Jackson’s front door, and kicked it
open. Jackson’s mother was asleep on the couch, and Jackson
was in his bedroom with his girlfriend, Emily Spencer-King
(“Spencer-King”).
When D.H. opened Jackson’s bedroom door, Jackson slammed
it shut. D.H. kicked the door back open and told Jackson he was
“going to kill this b**** on the couch if you don’t come out.”
Jackson opened the door, and S.N. pointed the gun at Jackson
and Spencer-King and demanded money and marijuana.
Jackson gave D.H. and S.N. two bags of marijuana and $300.00
to $400.00. The two young men ran back to Moore’s car and
gave the money to Moore, who needed it for a trip to Georgia.
The young men wanted to go home, but a dissatisfied Moore said
they “needed to get another one.” Moore drove to a house that
D.H. was familiar with but the young men did not attempt to go
inside because of an alarm system. D.H. suggested one more
stop in Milan and directed Moore to sixty-eight-year-old Nancy
Hershman’s (“Hershman”) house. When they arrived at
approximately 12:30 a.m., Moore got out of the car with D.H.
and S.N. because she did not “think [they] were doing anything
right.” Specifically, Moore told the young men that they were
“being a bunch of p***ies.” Moore asked S.N. for his gun and a
glove, which he gave her. He also instructed her on how to use
the gun’s safety.
Moore, D.H., and S.N. approached Hershman’s house, and

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D.H. kicked open the back door. Moore went inside first and the
two young men followed. While the young men looked around
the house for items to steal, Moore headed directly to a
downstairs bedroom, where she discovered Hershman, who was
in her pajamas. When Hershman began screaming, Moore told
her to “shut up, b****” and not to test her. Hershman pushed
Moore and reached for the gun. Moore pushed Hershman back
and shot her in the throat.
After the shooting, Moore, D.H., and S.N. quickly ran out of the
house without taking any property. On the way back to the car,
S.N. asked for his gun back because he was afraid that Moore
might shoot him too. When they got back to the car, Moore told
K.B. and Nichols that she had shot a woman. Moore further
stated that she “thought [she] would have had a little bit more
remorse for killing somebody but [she] didn’t.” Moore drove the
four young men back to Ohio.
[…]
D.H., S.N., K.B., and Nichols eventually confessed, and the
police questioned and arrested Moore. She was subsequently
charged with: (1) murder for killing Hershman; (2) burglary for
breaking and entering Hershman’s home with the intent to
commit theft; and (3) conspiracy to commit burglary for agreeing
with D.H. or S.N. to commit the burglary of Jackson’s home. A
jury convicted Moore as charged.
[…]
The trial court sentenced Moore to sixty-five (65) years for
murder, twenty (20) years for burglary, and twenty (20) years for
conspiracy to commit burglary. The court further ordered the
sentences to run consecutively to each other, for an aggregate
sentence of one-hundred and five (105) years in the Department
of Correction.

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Moore v. State, 2017 WL 603966 at *1–2, 4 (Ind. Ct. App. February 15, 2017)
(footnote, brackets, and internal record citations omitted), trans. denied. We
affirmed Moore’s sentence on direct appeal. Id. at *6.
[3] On September 29, 2022, Moore, pro se, filed her PCR petition, which advanced
five grounds for relief: “incompetence of counsel,” “equal justice,” “due
process,” “misconduct of change of venue,” and “misconduct of attorney.”
Appellant’s App. Vol. II p. 10–11. In her brief and at the hearing, however,
Moore focused solely on her claim that she had received ineffective assistance
of counsel due to her trial counsel’s alleged failure to negotiate or provide her a
plea offer and failure to investigate whether she had knowingly or intentionally
killed Hershman.1
[4] On March 30, 2026, the post-conviction court held a hearing, and on April 16,
2026, denied Moore’s PCR petition. In doing so, the post-conviction court
found as follows:
Petitioner argues ineffective assistance of counsel due to counsel
not bringing any plea agreements to her. First, she would have to
show that there were plea agreements that were offered in this
matter. Second, that counsel was deficient in communicating a
proposed plea to her. However, at the hearing, there was no
evidence submitted nor witnesses called to testify that any plea
agreement was ever offered. Therefore, without any evidence to
support that claim, Petitioner’s first argument for post-conviction
relief is denied.
1 In her brief, Moore also addressed the State’s argument that her claim was barred by doctrine of laches.
She has not, however, raised this argument on appeal.

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Secondly, the Petitioner claims there was no evidence of intent,
or mens rea, to commit murder. However, Indiana Courts have
said repeatedly that[] the deliberate formation of an intent to
perform a future act may be as instantaneous as successive
thoughts, and the precise duration between the inception of
intent and the killing need not be appreciable to constitute
premeditation. Intent is a mental function and, absent a
confession, usually must be proved by circumstantial evidence.
[I]ntent to kill may be inferred from the nature of the attack and
the circumstances of the crime. The requisite intent to commit
murder may be inferred from the intentional use of a deadly
weapon in a manner likely to cause death. Discharging a
weapon in the direction of a victim is substantial evidence from
which a jury can infer intent to kill.
In this case, the facts support a knowing and intentional verdict.
[Petitioner] took a loaded firearm, on safety, into the victim’s
home. At some point she disengaged the safety and when
confronted by the victim, pointing the firearm at close range at
the victim and discharged it in her direction striking the victim’s
throat and killing her. The evidence presented at trial was
sufficient for a jury to infer an intent to kill.
Therefore, Petitioner fails to prove by a preponderance of the
evidence that she is entitled to post-conviction relief.
Appellant’s App. Vol. II pp. 44–45 (quotations and citations omitted; brackets
inserted).
Discussion and Decision
[5] A petitioner who has been denied post-conviction relief appeals from a negative
judgment and as a result, faces a rigorous standard of review on appeal. Dewitt

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v. State, 755 N.E.2d 167, 169 (Ind. 2001); Collier v. State, 715 N.E.2d 940, 942
(Ind. Ct. App. 1999), trans. denied. Because post-conviction proceedings are
civil in nature, a petitioner must establish her claims by a preponderance of the
evidence to prevail. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002); Ind. Post-
Conviction Rule 1(5). When appealing from the denial of a PCR petition, a
petitioner must convince this court that the evidence, taken as a whole, “leads
unerringly and unmistakably to a decision opposite that reached by the post-
conviction court.” Stevens, 770 N.E.2d at 745. “In other words, the defendant
must convince this Court that there is no way within the law that the court
below could have reached the decision it did.” Id. (emphasis in original). “It is
only where the evidence is without conflict and leads to but one conclusion,
and the post-conviction court has reached the opposite conclusion, that its
decision will be disturbed as contrary to law.” Godby v. State, 809 N.E.2d 480,
482 (Ind. Ct. App. 2004), trans. denied. “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).
I. The Post-Conviction Court did not Err in Finding that
Moore did not Prove Ineffective Assistance of Counsel
by a Preponderance of the Evidence
[6] Moore contends that the post-conviction court erred in finding that she had not
proven that she received ineffective assistance of counsel from her trial counsel.
The right to effective assistance of counsel is rooted in the Sixth Amendment to
the United States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006).

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“The Sixth Amendment recognizes the right to the assistance of counsel
because it envisions counsel’s playing a role that is critical to the ability of the
adversarial system to produce just results.” Strickland v. Washington, 466 U.S.
668, 685 (1984). “The benchmark for judging any claim of ineffectiveness must
be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just
result.” Id. at 686.
[7] A successful claim for ineffective assistance of counsel must satisfy two
components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first
prong, the petitioner must establish that counsel’s performance was deficient by
demonstrating that counsel’s representation “fell below an objective standard of
reasonableness, committing errors so serious that the defendant did not have
the ‘counsel’ guaranteed by the Sixth Amendment.” Id. We begin with the
strong presumption that counsel rendered adequate legal assistance. Weisheit v.
State, 109 N.E.3d 978, 983 (Ind. 2018) (citations omitted). Isolated mistakes,
poor strategy, inexperience, and instances of bad judgment do not necessarily
render representation ineffective. Id. at 984.
[8] Under the second prong, the petitioner must show that the deficient
performance resulted in prejudice. Reed, 866 N.E.2d at 769. A petitioner may
show prejudice by demonstrating that there is “a reasonable probability (i.e. a
probability sufficient to undermine confidence in the outcome) that, but for
counsel’s errors, the result of the proceeding would have been different.” Id. A

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petitioner’s failure to satisfy either prong will cause the ineffective assistance of
counsel claim to fail. Henley v. State, 881 N.E.2d 639, 645 (Ind. 2008).
A. Moore did not Prove that Trial Counsel Failed to Present a Plea
Offer
[9] Moore contends that her trial counsel provided ineffective assistance by failing
to present her with a plea agreement. “[D]efense counsel has the duty to
communicate formal offers from the prosecution to accept a plea on terms and
conditions that may be favorable to the accused.” Woods v. State, 48 N.E.3d
374, 381 (Ind. Ct. App. 2015) (quoting Missouri v. Frye, 566 U.S. 134 (2012)).
“Nevertheless,” this duty “does not relieve a defendant of the burden of
establishing by a preponderance of the evidence … that counsel acted
unreasonably by failing to inform [her] of the plea offer and that, but for
counsel’s actions, there was a reasonable probability that [s]he would have
accepted the plea offer.” Dew v. State, 843 N.E.2d 556, 568 (Ind. Ct. App.
2006), trans. denied. We agree with the post-conviction court that Moore has
not met this burden.
[10] In denying Moore’s PCR petition, the post-conviction court found that “there
was no evidence submitted nor witnesses called to testify that any plea
agreement was ever offered.” Appellant’s App. Vol. II p. 44. During the
evidentiary hearing, Moore claimed that her trial counsel had “failed to explain
any alternatives as to … what kind of charges could have been dropped at
presenting a plea to me.” Tr. Vol. II p. 4. She also argued that her “attorney
that took over [her] PCR for the short amount of time” had told her “that the

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State presented a plea but it was never brought to [her].” Tr. Vol. II p. 4. These
statements, however, were not testimonial evidence, and, in any event, the post-
conviction court was under no obligation to credit them. See Thompson v. State,
804 N.E.2d 1146, 1149 (Ind. 2004) (“[F]actfinders are not required to believe a
witness’s testimony[.]”). Moreover, none of the exhibits Moore submitted to
the post-conviction court discussed the existence of a potential plea offer.
Based on the evidence before it, we cannot say that the post-conviction court
erred in finding that Moore had not been presented with a plea offer.2 See
Stevens, 770 N.E.2d at 745 (“[A] defendant must establish [her] claims by a
preponderance of the evidence.”).
B. Moore did not Prove that Trial Counsel did not Adequately
Cross-Examine S.N.
[11] Moore also argues that she had received ineffective assistance because her trial
counsel had failed to use S.N.’s deposition, which had been taken by her prior
counsel, during cross-examination. Moore specifically contends that S.N.’s
testimony would have proved that she had not intended to kill Hershman
because S.N. gave her “the gun with the safety still on [and she] did not know
2 On appeal, Moore has submitted a letter from the State Public Defender’s Office, dated June 4, 2026,
which states, “Trial counsel told me the State offered a plea to murder with a sentencing cap. He said you
would not plead guilty to the State’s plea offer. You can contact trial counsel if you want further information
about the State’s plea offer and your rejection of that offer.” Appellant’s App. Vol. II p. 65. Because this
letter is dated June 4, 2026, the post-conviction court could not have considered the information therein
before it denied Moore’s PCR petition on April 16, 2026. Even so, as indicated by this letter, Moore has not
shown that she would have accepted a plea had it been offered to her. See Frye, 566 U.S. at 147 (“To show
prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of
counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have
accepted the earlier plea offer had they been afforded effective assistance of counsel.”).

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how to take the safety off[.]” Appellant’s Br. p. 13. Moore believes that this
“testimony on cross-examination … could have persuaded the jury that Moore
had acted recklessly when the gun discharged rather than intentionally[.]”
Appellant’s Br. p. 13.
[12] In support of this assertion, Moore submitted excerpts of S.N.’s deposition to
the post-conviction court:
Q: So you hand her a loaded gun that you needed for your
protection?
A: Yes.
Q: Did you take the safety off for her?
A: No.
Q: Did you tell her how to?
A: I’m sure she knew how to take the safety off.
Q: Well, how are you sure she knew how to do that?
A: Because it’s pretty easy. It’s just right there on the side.
Ex. Vol. III pp. 19–20. Moore also submitted excerpts from S.N.’s trial
testimony. Moore is correct that, in the excerpts submitted as evidence, her
trial counsel had not asked S.N. about the gun on cross-examination.
[13] This testimony from S.N., if anything, supports a finding that Moore knew how
to deactivate the safety on the firearm, undercutting any suggestion that she had
acted recklessly. Moreover, these excerpts do not provide a full picture of
S.N.’s testimony. As the State correctly notes, Moore did not submit the full
trial transcript at the evidentiary hearing, and the post-conviction court did not
take judicial notice of it. Based on the limited evidence before it, we cannot say
that the post-conviction court erred in concluding that Moore had not proven

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by a preponderance of the evidence that her trial counsel failed to use S.N.’s
deposition testimony during cross-examination.3 SeeStevens, 770 N.E.2d at 745.
Therefore, the post-conviction court properly determined that Moore had
received effective assistance of counsel and denied her relief on these grounds.4
II. The Post-Conviction Court did not Err by Failing to
Consider Moore’s Additional Claims
[14] Finally, Moore contends that the post-conviction court erred in not entering
findings of facts and conclusions of law for the remaining claims she presented
in her PCR petition. “Post-conviction procedures do not afford the petitioner
with a super-appeal.” Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999).
“Instead, they create a narrow remedy for subsequent collateral challenges to
convictions, challenges which must be based on grounds enumerated in the
post-conviction rules.” Id. “If an issue was known and available, but not raised
on direct appeal, it is waived.” Timberlake, 753 N.E.2d at 597.
[15] As a justification for post-conviction relief, Moore had cited “equal justice,”
alleging that there was a “disparity of sentencing of like crimes based on
3 Even if Moore had proven that her trial counsel failed to cross-examine S.N. about the gun’s safety,
“[c]ounsel is afforded considerable discretion in choosing strategy and tactics, and we will accord those
decisions deference.” Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001) (citing Strickland, 466 U.S. at 689).
“We will not second-guess strategic or tactical decisions even though such choices may be subject to criticism
or ultimately did not serve defendant’s interests.” Heyward v. State, 769 N.E.2d 215, 219 (Ind. Ct. App.
2002).
4 To the extent that Moore argues that the evidence does not support an intentional murder conviction, the
argument is waived because it was not brought on direct appeal. Timberlake, 753 N.E.2d at 597 (“If an issue
was known and available, but not raised on direct appeal, it is waived.”).

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incongruous elements[.]” Appellant’s App. Vol. II p. 10. However, we
previously determined that Moore’s sentence is appropriate. See Moore, 2017
WL 603966 at *6 (“Based on the nature of the offenses and her character,
Moore has failed to persuade this Court that her one-hundred-and five (105)
year sentence is inappropriate.”). “Although differently designated, an issue
previously considered and determined in a defendant’s direct appeal is barred
for post-conviction review on grounds of prior adjudication—res judicata.”
Kubsch v. State, 934 N.E.2d 1138, 1143 n.2 (Ind. 2010) (citing Reed v. State, 856
N.E.2d 1189, 1194 (Ind. 2006)). The post-conviction court did not err in failing
to issue findings of fact and conclusions of law as to this claim.
[16] As further support of her “equal justice” claim, Moore had also argued that
there was a “disparity of charges filed” because she allegedly should have been
charged with reckless homicide instead of murder. Appellant’s App. Vol. II p.
10. Moore had also claimed that her “due process” rights were violated
because her trial received “too much publicity” to be fair, and “misconduct of
change of venue” because Hershman was well-known and Moore was a
stranger from out-of-town. Appellant’s App. Vol. II pp. 10–11. However,
Indiana Post-Conviction Rule 1(8) states that “[a]ll grounds for relief available
to a petitioner under this rule must be raised in [her] original petition.” As
such, if an issue was known on direct appeal but not raised, it is waived.
Williams v. State, 808 N.E.2d 652, 659 (Ind. 2004).
[17] These claims were available when Moore filed her direct appeal and could have
been brought before us then. Moore does not point to any newly-discovered

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evidence that suggests otherwise. Post-conviction proceedings “provide the
opportunity to raise issues that were unknown or unavailable at the time of the
original trial or direct appeal[,]” and these claims do not qualify. Miske v. State,
142 N.E.3d 439, 447 (Ind. Ct. App. 2020), trans. denied. Furthermore, Moore
had abandoned these claims by failing to present a cogent argument in support
of her assertions in her brief to the post-conviction court or at the evidentiary
hearing. Basic v. Amouri, 58 N.E.3d 980, 984 (Ind. Ct. App. 2016). The post-
conviction court did not err in failing to enter findings of fact and conclusions of
law as to these grounds.
[18] The judgment of the post-conviction court is affirmed.
Bailey, J., and Altice, J., concur.
ATTORNEYS FOR APPELLANT
Evan R. Pennington
Garrett R. Bascom
Jefferson C.M. Kisor
Bascom & Kisor, LLC
Lawrenceburg, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Jesse R. Drum
Supervising Deputy Attorney General
Indianapolis, Indiana