MEMORANDUM DECISION
                                                                   Oct 07 2015, 10:05 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Quentin J. Abbott                                         Gregory F. Zoeller
Carlisle, Indiana                                         Attorney General of Indiana

                                                          Michael Gene Worden
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Quentin J. Abbott,                                        October 7, 2015

Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          34A05-1412-PC-604
        v.                                                Appeal from the Howard Circuit
                                                          Court
State of Indiana,                                         The Honorable Lynn Murray, Judge
Appellee-Respondent.
                                                          Cause No. 34C01-1203-PC-57




Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015      Page 1 of 25
                                       Statement of the Case
[1]   Quentin Abbott appeals the post-conviction court’s denial of his amended

      petition for post-conviction relief. Abbott raises four issues for our review:

              1.       Whether the trial court denied him due process of law.

              2.       Whether the prosecutor committed misconduct that
                       denied him due process of law.

              3.       Whether he received ineffective assistance of trial counsel.

              4.       Whether he received ineffective assistance of appellate
                       counsel.


[2]   We affirm.


                                 Facts and Procedural History
[3]   The facts underlying Abbott’s conviction for murder, a felony, were set out in

      this court’s decision on his direct appeal:


              Mark Methene, a crack cocaine dealer recently released from
              prison, owed Abbott approximately $800. Abbott complained of
              this debt to others. On June 6, 2001, Marcus Herron picked up
              Abbott and Dariel Jones and drove around Kokomo. Abbott
              asked Herron to stop at another person’s home, where he
              retrieved a shotgun and a box of shells. As the trio neared
              Studebaker Park, Abbott loaded the shotgun with a single shell.

              Methene was playing dice in the park when Abbott exited the car
              with the shotgun. Herron told Abbott not to do anything stupid.
              Abbott approached Methene, who had money in his hand, and
              demanded repayment of the debt. Methene refused, argued with


      Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015   Page 2 of 25
              Abbott, and fled. Methene then turned and faced Abbott,
              stating, “[B]itch, you gonna have to fight me for this money now,
              because you done approached me with a gun; you don’t—you a
              ho, you a bitch[.]” Tr. at 406. Methene ran back toward the dice
              game area. Abbott aimed the shotgun at Methene and fired,
              striking him in the back at close range. Methene later died from
              this wound.

              Abbott fled and flagged down his companions. Abbott
              remarked, “I told him to stop playing my money.” Id. at 411.
              Shortly thereafter, Abbott told another person, “I just shot that
              nigger, Mark G, in the back.” Id. at 416. At Abbott’s request,
              Herron drove him to Marion.


      Abbott v. State, No. 34A04-0307-CR-322, slip op. at *2-*3 (Ind. Ct. App. Jan. 30,

      2004) (“Abbott I”).


[4]   The State charged Abbott with murder and sought life imprisonment without

      parole. At the jury trial, the State elicited testimony that, on June 6, 2001,

      witnesses saw Abbott at the crime scene pointing a gun at Methene, heard a

      gunshot, and subsequently saw Methene with a gunshot wound. One

      eyewitness, Derrick Green, testified that he saw Abbott shoot Methene.

      Another witness, Dariel Jones, recanted his prior out-of-court sworn statement

      to police wherein he identified Abbott as the shooter. Jones said his prior

      statement was false and coerced. Jones’ prior statement was read to the jury

      pursuant to Indiana Rule of Evidence 803(5) as a “recorded recollection”

      exception to the rule against hearsay.




      Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015   Page 3 of 25
[5]   The jury found Abbott guilty of murder. The jury recommended against a

      sentence of life without parole, and the trial court entered an order denying that

      sentence. On June 4, 2003, after weighing aggravating and mitigating factors,

      the trial court sentenced Abbott to sixty years1 executed. The court based the

      five-year enhancement on several aggravating factors, including Abbott’s

      extensive juvenile record and criminal history and his continued criminal

      behavior even after receiving extensive rehabilitation services through the

      juvenile and probation systems. The trial court noted that those aggravating

      factors demonstrated an “escalating pattern of non-compliance with society’s

      laws and rules” and found that Abbott was “in need of rehabilitative and

      correctional treatment that can best be provided by commitment to a penal

      facility.” Direct Appeal App. at 251.


[6]   Abbott appealed his conviction on the sole ground that the State failed to negate

      the presence of “sudden heat” beyond a reasonable doubt.2 This court affirmed

      the trial court’s judgment. Abbott I, slip op. at *5. On March 15, 2012, Abbott

      filed his Petition for Post-Conviction Relief, which he subsequently amended.

      In his amended petition, Abbott raised numerous allegations of prosecutorial

      misconduct, trial court abuse of discretion, ineffective assistance of trial




      1
         The statutory sentence for murder at the time of Abbott’s sentencing was “a fixed term of fifty (50) to fifty-
      five (55) years, with not more than ten (10) years added for aggravating circumstances and not more than ten
      (10) years subtracted for mitigating circumstances.” Ind. Code § 35-50-2-3 (2000).
      2
        “The existence of sudden heat is a mitigating factor that reduces what otherwise would be murder . . . to
      voluntary manslaughter.” Ind. Code § 35-42-1-3(b) (2000).



      Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015                Page 4 of 25
      counsel, and ineffective assistance of his direct-appeal counsel. A hearing on

      Abbott’s petition was held on September 26, 2014. On December 1, 2014, the

      post-conviction court denied Abbott’s petition. This appeal ensued.


                                     Discussion and Decision
                                             Standard of Review

[7]   Abbott appeals the post-conviction court’s denial of his amended petition for

      post-conviction relief. Our standard of review is clear:


              [The petitioner] bore the burden of establishing the grounds for
              relief by a preponderance of the evidence. Ind. Post-Conviction
              Rule 1(5). Because he is now appealing from a negative
              judgment, to the extent his appeal turns on factual issues, [the
              petitioner] must convince this Court that the evidence as a whole
              leads unerringly and unmistakably to a decision opposite that
              reached by the post[-]conviction court. Harrison v. State, 707
              N.E.2d 767, 773 (Ind. 1999) (citing Spranger v. State, 650 N.E.2d
              1117, 1119 (Ind. 1995)). We will disturb the decision only if the
              evidence is without conflict and leads only to a conclusion
              contrary to the result of the post[-]conviction court. Id. at 774.

              Post[-]conviction procedures do not afford a petitioner with a
              super-appeal, and not all issues are available. Rouster v. State, 705
              N.E.2d 999, 1003 (Ind. 1999). Rather, subsequent collateral
              challenges to convictions must be based on grounds enumerated
              in the post[-]conviction rules. P C.R. 1(1); Rouster, 705 N.E.2d at
              1003. If an issue was known and available, but not raised on
              direct appeal, it is waived. Rouster, 705 N.E.2d at 1003. If it was
              raised on appeal, but decided adversely, it is res judicata. Id.
              (citing Lowery v. State, 640 N.E.2d 1031, 1037 (Ind. 1994)). If not
              raised on direct appeal, a claim of ineffective assistance of trial
              counsel is properly presented in a post[-]conviction proceeding.


      Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015   Page 5 of 25
               Woods v. State, 701 N.E.2d 1208, 1215 (Ind. 1998). A claim of
               ineffective assistance of appellate counsel is also an appropriate
               issue for post[-]conviction review. As a general rule, however,
               most free-standing claims of error are not available in a post[-
               ]conviction proceeding because of the doctrines of waiver and res
               judicata. Some of the same contentions, to varying degrees, may
               be properly presented in support of a claim of ineffective
               assistance of trial or appellate counsel.


      Timberlake v. State, 753 N.E.2d 591, 597-98 (Ind. 2001).


                                      Issue One: Precluded Claims

[8]   Because both the claims of prosecutorial misconduct and trial court abuse of

      discretion were known and available, but not raised, in Abbott’s direct appeal,

      those claims are waived. Id. at 597 (citing Rouster v. State, 705 N.E.2d 999, 1003

      (Ind. 1999)). However, Abbott’s claims of ineffective assistance of trial and

      appellate counsel are properly before us for review. Id.


                         Issue Two: Ineffective Assistance of Trial Counsel

[9]   Abbott argues that his trial counsel was ineffective. As our supreme court has

      noted:

               This Court reviews claims of ineffective assistance of counsel
               under the two components set forth in Strickland v. Washington,
               466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the
               defendant must show that counsel’s performance was deficient.
               Id. at 687, 104 S.Ct. 2052. This requires a showing that counsel’s
               representation fell below an objective standard of reasonableness,
               id. at 688, 104 S.Ct. 2052, and that the errors were so serious that
               they resulted in a denial of the right to counsel guaranteed the


      Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015   Page 6 of 25
               defendant by the Sixth Amendment, id. at 687, 104 S.Ct. 2052.
               Second, the defendant must show that the deficient performance
               prejudiced the defendant. Id. To establish prejudice, a defendant
               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. at 694, 104 S.Ct. 2052. A
               reasonable probability is a probability sufficient to undermine
               confidence in the outcome. Id.

       Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002).

[10]   We will not second-guess trial counsel’s strategy and tactics unless they are so

       unreasonable that they fall outside objective standards. See, e.g., Benefield v.

       State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011). Isolated mistakes, poor

       strategy, inexperience, and instances of bad judgment do not necessarily render

       representation ineffective. Wentz, 766 N.E.2d at 361. And if a claim of

       ineffective assistance of counsel can be disposed of by analyzing the prejudice

       prong alone, we will do so. Benefield, 935 N.E.2d at 797 (citing Wentz, 766

       N.E.2d at 360).


[11]   Abbott’s ineffective assistance of trial counsel claims allege that his counsel was

       ineffective for failing to object at certain points in the trial. Specifically, he

       claims his trial counsel was ineffective for: (1) failure to object to the admission

       of Jones’ out-of-court statement; (2) failure to object to the trial court’s

       identification of aggravating factors; (3) failure to object to the identification of

       the aggravator that Abbott needed treatment in a penal facility; (4) failure to

       object to the State questioning alluding to robbery; and (5) failure to object to



       Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015   Page 7 of 25
       the prosecutor’s statements in closing argument. “In order to prove ineffective

       assistance of counsel due to the failure to object, a defendant must prove that an

       objection would have been sustained if made and that he was prejudiced by the

       failure.” Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001).


                      1.       Failure to Object to Admission of Out-of-Court Statement


[12]   Abbott alleges that his trial counsel was ineffective for failing to thoroughly and

       properly argue his objection to what Abbott refers to as Exhibit 213, which is an

       audio recording of State’s witness Dariel Jones’ out-of-court, sworn statement

       given to the police on June 20, 2001. However, we need not address whether

       his counsel’s objection was ineffective because Abbott cannot show that he was

       prejudiced by any such alleged error. In Jones’ June 20 statement he said that

       he saw Abbott pointing a gun at Methene, heard a gunshot, and then saw

       Methene fall to the ground. But there were several other eye-witnesses who

       testified to these same facts. And, although no one but Jones said they heard

       Abbott say that Abbott shot Methene, one eye-witness testified that he actually

       saw Abbott shoot Methene. Thus, there was ample evidence to support the jury

       verdict, and it is highly unlikely, much less probable, that the result of the trial




       3
         Although both parties and the post-conviction court refer to Jones’ June 20, 2001, out-of-court statement as
       “Exhibit 21,” it was not actually admitted as an exhibit; rather, it was read into evidence without either the
       recording or a transcription of the recording being admitted as an exhibit.



       Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015             Page 8 of 25
       would have been different but for trial counsel’s alleged failure to properly

       object to Jones’ June 20 out-of-court statement.

                  2.       Failure to Object to Trial Court Findings of Aggravating Factors


[13]   Abbott argues that his counsel was ineffective for failing to object to the trial

       court’s enhancement of his sentence based on aggravating factors not found

       beyond a reasonable doubt by a jury as required by Apprendi v. New Jersey, 530

       U.S. 466 (2000). 4 The United States Supreme Court held in Apprendi that any

       fact that increases the penalty for a crime beyond the prescribed statutory

       maximum must be submitted to a jury, and proved beyond a reasonable doubt.

       Id. at 490. Four years later, in Blakely v. Washington, the Court clarified the

       Apprendi rule by stating that “statutory maximum” means


                the maximum sentence a judge may impose solely on the basis of
                the facts reflected in the jury verdict or admitted by the
                defendant. . . . In other words, the relevant “statutory
                maximum” is not the maximum sentence a judge may impose
                after finding additional facts, but the maximum he may impose
                without any additional findings.




       4
         Abbott also cites Article 1, Section 19 of the Indiana Constitution as support for this argument. Article 1,
       Section 19 provides: “In all criminal cases whatever, the jury shall have the right to determine the law and
       facts.” Abbott provides no record evidence or legal authority relating to this state constitutional claim, nor
       does he provide any cogent argument as to how this provision applies to his sentencing. Therefore, his claim
       under Art. 1, § 19 is waived. Ind. Appellate Rule 46(A)(8)(a) (“Each contention must be supported by
       citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on.”); Pierce v.
       State, 29 N.E.3d 1258, 1267 (Ind. 2015) (noting failure to support arguments with appropriate citations to
       legal authority and record evidence waives those arguments for our review).



       Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015               Page 9 of 25
[14]   542 U.S. 296, 303-304 (2004) (internal citations omitted). Thus, under Blakely,

       the trial court would not have been permitted to enhance Abbott’s sentence

       beyond fifty-five years unless such enhancement was based on facts found by

       the jury beyond a reasonable doubt.5


[15]   Here, however, the trial court did not engage in impermissible fact-finding

       when it enhanced Abbott’s sentence. A defendant’s juvenile record and

       criminal history need not be found by a jury to be utilized by a trial court as an

       aggravating circumstance. Freeze v. State, 827 N.E.2d 600 (Ind. Ct. App. 2005);

       see also Teeters v. State, 817 N.E.2d 275, 279 (Ind. Ct. App. 2004) (holding that

       prior criminal convictions “have already been proven beyond a reasonable

       doubt and are thus exempt from the Apprendi rule”), trans. denied. Likewise, the

       sentencing aggravator that Abbott was in need of correctional or rehabilitative

       treatment that could best be provided by commitment to a penal facility was

       derivative of the criminal history aggravator; thus, it also did not implicate

       Apprendi and Blakely. Teeters, 817 N.E.2d at 279; see also Gillem v. State, 829

       N.E.2d 598, 606 (Ind. Ct. App. 2005) (holding that the aggravating factor of

       need for corrective treatment that can best be provided in a penal facility did not




       5
         However, prior to Blakely, Apprendi had not been interpreted to prohibit a trial court from finding additional
       facts to enhance a sentence within the statutory maximum, which was sixty-five (65) years with enhancement
       in Abbott’s case. Smylie v. State, 823 N.E.2d 679, 682-683 (Ind. 2005). And the Indiana Supreme Court has
       held Blakely only applies retroactively to cases that were pending at the trial court or on direct appeal at the
       time Blakely was decided, i.e., June 24, 2004. Id. At that time, Abbott had already been convicted and
       sentenced, and his direct appeal had already been decided against him. Thus, Apprendi/Blakely would not
       have prohibited the trial court from finding additional facts to enhance Abbott’s sentence by up to ten years
       in any case. But, for the sake of argument, we nonetheless address Abbott’s Apprendi/Blakely claim.



       Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015             Page 10 of 25
       implicate Blakely because it was derived from the defendant’s criminal history),

       trans. denied. Thus, the Apprendi/Blakely cases are not implicated here, and trial

       counsel was not ineffective for failing to object on the basis of that authority.6

                       3.       Failure to Object to Use of Aggravator that Abbott Needs
                                          Treatment in a Penal Facility

[16]   Abbott claims that his trial counsel was ineffective for failing to object to the

       trial court’s finding as an aggravator that Abbott was in need of rehabilitative

       and correctional treatment best provided by commitment to a penal facility. 7 In

       support of this proposition Abbott cites Prickett v. State, 856 N.E.2d 1203 (Ind.

       2006), in which our supreme court held that a trial court finding that a

       defendant will best be served by treatment in a penal facility must include an

       explanation as to how the enhancement relates to and would achieve the goal

       of correctional and rehabilitative treatment. Id. at 1208.


[17]   But, contrary to Abbott’s assertions, the trial court’s sentencing statement here

       contains exactly such an explanation. The trial court found the aggravator of

       need for treatment in a penal facility only after (1) detailing Abbott’s extensive

       juvenile record and criminal history and his probation violations; (2) noting that




       6
        Moreover, our supreme court has held that Blakely created a new rule of criminal procedure such that
       neither a trial nor appellate lawyer would be “ineffective for proceeding without making a Blakely claim
       before Blakely was decided.” Smylie, 823 N.E.2d at 690.
       7
         Abbott also alleges, incorrectly, that the trial court improperly identified the aggravator that the imposition
       of a lesser sentence would depreciate the seriousness of the crime. The trial court identified no such
       aggravator.



       Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015               Page 11 of 25
       “[e]fforts to dissuade the Defendant from committing offenses and crimes

       [have] failed, despite he [sic] having received intensive services in probation,

       juvenile detention, and Boys[’] School, and having been incarcerated in jail”;

       and (3) observing that Abbott has an “escalating pattern of non-compliance

       with society’s laws and rules.” Direct Appeal App. at 251. Given this detailed

       explanation of the facts justifying the use of the aggravator, the trial court did

       not err and, thus, trial counsel did not err in failing to object.8 See Gillem, 829

       N.E.2d at 604 (holding that the trial court had properly used the aggravator of

       need for treatment in a penal facility where the court noted that the prior

       attempts of probation and court ordered counseling had been unsuccessful).

                    4.       Failure to Object to State Questioning Alluding to Robbery


[18]   Abbott argues that his trial counsel was ineffective for failing “to object to the

       State repeatedly pursuing a line of questioning that alluded to robbery.”

       Appellant’s Br. at 19. Abbott claims this line of questioning was improper

       because he was never charged with robbery and/or felony murder. However,

       Abbott provides no citation to the record or authority to support his allegation.

       An argument on appeal “must contain the contentions of the appellant on the

       issues presented, supported by cogent reasoning. Each contention must be

       supported by citations to the authorities, statutes, and the Appendix or parts of



       8
         Moreover, Abbott’s enhanced sentence would have been proper based on his extensive juvenile delinquent
       and criminal history alone. “[O]nly one valid aggravating circumstance is necessary to support an enhanced
       sentence.” Johnson v. State, 725 N.E.2d 864, 868 (Ind. 2000).



       Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015        Page 12 of 25
       the Record on Appeal relied on.” Ind. Appellate Rule 46(A)(8)(a). Failure to

       support arguments with appropriate citations to legal authority and record

       evidence waives those arguments for our review. Pierce v. State, 29 N.E.3d

       1258, 1267 (Ind. 2015). Although we prefer to resolve cases on the merits

       instead of procedural grounds like waiver whenever possible, Abbott’s complete

       lack of citation to anything at all renders his non-compliance with Appellate

       Rule 46(A)(8)(a) so substantial as to prevent our consideration of the issue. Id.

       Abbott has waived this claim.

                5.       Failure to Object to Prosecutor’s Statements in Closing Argument


[19]   Finally, Abbott alleges that his trial counsel was ineffective for failing to object

       to four statements made by the prosecutor in his closing and reply arguments.

       While the prosecutor certainly engaged in zealous advocacy here, none of his

       statements constituted misconduct. And, even if they did, Abbott has provided

       no evidence of prejudice to him from the failure to object to these statements.


[20]   In his initial closing statement, the prosecutor implied that some witnesses

       recanted their earlier statements because “they have to live under the worry and

       threat from repercussions of their testimony here today.” Tr. at 474. Abbott

       claims this statement was impermissible and constitutes prosecutorial

       misconduct to which his counsel should have objected. However, a

       prosecutor’s final argument may “state and discuss the evidence and reasonable

       inferences derivable therefrom so long as there is no implication of personal

       knowledge that is independent of the evidence.” Hobson v. State, 675 N.E.2d


       Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015   Page 13 of 25
       1090, 1096 (Ind. 1996) (emphasis added). Here, there was evidence in the

       record that some witnesses were reluctant to testify, that some witnesses had to

       be reminded of prior sworn statements, and that at least one witness had been

       “threatened on the streets” and was afraid of “being known as a snitch.” Tr. at

       424-25. The prosecutor’s statement was a reasonable inference derived from

       that evidence.


[21]   In his closing argument, the prosecutor also stated that Abbott had acted

       “coldly, brazenly, [and] calculatingly” in shooting Methene, id. at 476; that

       Abbott had “calculate[d] his move,” id. at 486-87; and that “[t]his is a cold

       blooded murder, period,” id. at 487. Abbott claims it was impermissible for the

       prosecutor to state his opinion in this way. Yet, a final argument “need not

       consist of a bland recitation of the evidence devoid of thought-provoking

       illustration.” Clark v. State, 597 N.E.2d 4, 10 (Ind. Ct. App. 1992), trans. denied.

       Here, the prosecutor was using dramatic language to restate the intent

       requirement for murder, i.e., that the murder was done knowingly and

       intentionally. It is the prosecutor’s job to present a persuasive final argument.

       See, e.g., Bowles v. State, 737 N.E.2d 1150, 1154 (Ind. 2000) (holding trial court

       did not abuse its discretion in allowing prosecutor, in his closing argument, to

       read a poem about a cockroach and compare the defendant to the cockroach);

       Mahal v. State, 496 N.E.2d 568, 572 (Ind. 1986) (finding prosecutor’s closing

       statement to jury that they should “not allow [defendant] to prey upon others”

       and “not allow [defendant] to get to Jason or any other children” was “within

       the ambit of reasonable prosecutorial advocacy”). Moreover, “statements of


       Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015   Page 14 of 25
       opinion are not prohibited” in closing arguments. Gregory v. State, 885 N.E.2d

       697, 708 (Ind. Ct. App. 2008), trans. denied. Trial counsel was not ineffective for

       failing to object to these statements by the prosecutor.


[22]   In his rebuttal closing argument, the prosecutor told the jury, “if you buy the

       power point presentation and you find Quentin Abbott guilty of Voluntary

       Manslaughter, you have just rendered a verdict that says that he is excused for

       murdering Mark Methene, that he had a reason or an excuse to shoot him

       down in cold blood, period.” Tr. at 485. He also stated to the jury, “if you

       asked Mark Methene whether he was voluntarily manslaughtered, I think he

       would take great exception to that. He would say to you, Ladies and

       Gentlemen, that June 6th Quentin Abbott knowingly and intentionally shot me

       in the back and killed me, period, with no excuses.” Id. at 486. Abbott alleges

       these statements constitute prosecutorial misconduct to which his counsel

       should have objected. However, these statements were made in response to

       Abbott’s closing argument that he should have been convicted of voluntary

       manslaughter rather than murder. “Prosecutors are entitled to respond to

       allegations and inferences raised by the defense even if the prosecutor’s

       response would otherwise be objectionable.” Cooper v. State, 854 N.E.2d 831,

       836 (Ind. 2006).


[23]   Moreover, even if the prosecutor’s statements constituted misconduct, Abbott

       has provided no evidence that his trial counsel’s failure to object to these

       statements caused him any substantial prejudice. Abbott has not shown that



       Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015   Page 15 of 25
       there is a reasonable probability that, but for his trial counsel’s failure to object,

       the result of his trial would have been different. Rather, the record contains

       ample eye-witness testimony that could support the jury’s verdict regardless of

       the prosecutor’s statements in closing argument.


                      Issue Three: Ineffective Assistance of Appellate Counsel

[24]   Abbott raises six claims of ineffective assistance of appellate counsel: (1) failure

       to raise claims of prosecutorial misconduct regarding the line of questioning

       about robbery; (2) failure to raise claims of trial court abuse of discretion for

       refusing to instruct the jury on lesser included offenses of reckless homicide and

       involuntary manslaughter; (3) failure to raise claims regarding sentencing; (4)

       failure to raise claims that Jones’ prior out-of-court statement was inadmissible

       hearsay; (5) failure to raise claims of prosecutorial misconduct in closing

       argument; and (6) failure to adequately argue that there was insufficient

       evidence to prove Abbott did not act under “sudden heat.”


[25]   The standard of review for these claims is the same as for allegations of

       ineffective assistance of trial counsel; that is, the defendant must show counsel’s

       performance fell below an objective standard of reasonableness, and, but for the

       deficient performance of counsel, there is a reasonable probability that the result

       of the proceeding would have been different. Hollowell v. State, 19 N.E.3d 263,

       269 (Ind. 2014) (citing Strickland, 466 U.S. at 687-88, 694). Ineffective

       assistance of appellate counsel claims generally fall into one of three categories:

       (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present


       Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015   Page 16 of 25
       issues well. Montgomery v. State, 21 N.E.3d 846, 854 (Ind. Ct. App. 2014), trans.

       denied.


[26]   Five of Abbott’s ineffective assistance of appellate counsel claims fall into the

       second category, waiver of issues. “Ineffectiveness [under this category] ‘is very

       rarely found’ because ‘the decision of what issues to raise is one of the most

       important strategic decisions to be made by appellate counsel,’

       and . . . ‘reviewing courts should be particularly deferential to counsel's

       strategic decision to exclude certain issues in favor of others, unless such a

       decision was unquestionably unreasonable.’” Id. (quoting Bieghler v. State, 690

       N.E.2d 188, 193-94 (Ind. 1997)). In analyzing a waiver-of-issues claim, the

       court first must determine whether the unraised issues were significant and

       obvious upon the face of the record. Id. If so, the court then compares these

       unraised obvious issues to those raised by appellate counsel, finding deficient

       performance only when ignored issues are clearly stronger than those presented.

       Id. The court “should not find deficient performance when counsel’s choice of

       some issues over others was reasonable in light of the facts of the case and the

       precedent available to counsel when that choice was made.” Bieghler, 690

       N.E.2d at 194. And, of course, appellant counsel will not be faulted for failing

       to raise what would have been a meritless claim. Overstreet v. State, 877 N.E.2d

       144, 167 (Ind. 2007).

                 1.     Failure to raise claim of prosecutorial misconduct regarding line of
                        questioning about robbery




       Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015   Page 17 of 25
[27]   Abbott again alleges that it was error for the prosecutor to ask questions about

       robbery because Abbott was not charged with robbery. As noted previously,

       Abbott has waived this claim by failing to provide citation to any authority or

       record evidence as support. Pierce, 29 N.E.3d at 1267; App. R. 46(A)(8)(a).


[28]   However, in his ineffective assistance of appellate counsel claim (unlike in his

       claim regarding trial counsel), Abbott does cite to his “6th Amendment right to

       be informed of the nature and cause of the accusation against him and to

       prepare a defense,” claiming he had no notice of being charged with robbery.

       Appellant’s Br. at 23. He also alleges that the “5th Amendment guarantees the

       accused that he will not be tried for offenses not presented in the charging

       information,” and that this right was violated when he was “convicted of a

       crime different than that charged.” Id.


[29]   Abbott’s claims regarding “robbery” all stem from Abbott’s mistaken belief that

       he was convicted of robbery and/or felony murder. Abbott provides no citation

       to the record in support of this belief and, in fact, the record contains no

       showing that Abbott was ever accused of, charged with, or convicted of

       robbery. The State did question witnesses about Abbott holding money in his

       hand after the shooting of Methene. However, such questioning relates to

       Abbott’s motive for shooting Methene, not to a separate crime of robbery. Of

       course, motive is always relevant for proof of a crime. See, e.g., Turner v. State,

       953 N.E.2d 1039, 1057 (Ind. 2011). Abbott’s appellate counsel was not




       Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015   Page 18 of 25
       ineffective for failing to argue prosecutorial misconduct relating to claims of

       robbery.

       2.      Failure to raise claim of trial court abuse of discretion for refusing to instruct jury
             on lesser included offenses of reckless homicide and involuntary manslaughter.

[30]   Abbott alleges that his appellate counsel was ineffective for failing to claim on

       direct appeal that the trial court abused its discretion in refusing to instruct the

       jury on reckless homicide and involuntary manslaughter as lesser included

       offenses of murder. The Indiana Supreme Court has developed a three-part test

       that trial courts are to use when asked to instruct a jury on a lesser included

       offense of the crime charged:


               First, the trial court must compare the statute defining the crime
               charged with the statute defining the alleged lesser included
               offense to determine if the alleged lesser included offense is
               inherently included in the crime charged. Id. at 566. Second, if a
               trial court determines that an alleged lesser included offense is
               not inherently included in the crime charged under step one, then
               it must determine if the alleged lesser included offense is factually
               included in the crime charged. Id. at 567. If the alleged lesser
               included offense is neither inherently nor factually included in
               the crime charged, the trial court should not give an instruction
               on the alleged lesser included offense. Id. Third, if a trial court
               has determined that an alleged lesser included offense is either
               inherently or factually included in the crime charged, “it must
               look at the evidence presented in the case by both parties” to
               determine if there is a serious evidentiary dispute about the
               element or elements distinguishing the greater from the lesser
               offense and if, in view of this dispute, a jury could conclude that
               the lesser offense was committed but not the greater. Id. “[I]t is
               reversible error for a trial court not to give an instruction, when



       Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015   Page 19 of 25
                requested, on the inherently or factually included lesser offense”
                if there is such an evidentiary dispute. Id.


       Webb v. State, 963 N.E.2d 1103, 1106 (Ind. 2012) (citing and quoting Wright v.

       State, 658 N.E.2d 563, 566-67 (Ind. 1995)).


[31]   Involuntary manslaughter is not an inherently included lesser offense of

       murder, as Abbott claims. See e.g., Ketcham v. State, 780 N.E.2d 1171, 1177

       (Ind. Ct. App. 2003), trans. denied. However, it may be a factually included

       lesser offense if the charging information alleges that a battery9 accomplished

       the killing. Id. It is within the State’s “discretion to draft the information in a

       manner that foreclose[s] the opportunity for [the defendant] to seek a conviction

       on a lesser offense” that is not inherently included. Norris v. State, 943 N.E.2d

       362, 369 (Ind. Ct. App. 2011), trans. denied; see also Jones v. State, 966 N.E.2d

       1256, 1258 (Ind. 2012) (noting that, although the State cannot foreclose through

       its drafting of the charging information an instruction on an inherently lesser

       included offense, it may foreclose an instruction on a factually lesser included

       offense). Here, the charging information contains no reference to battery; it

       alleges only that Abbott “did knowingly and intentionally kill [a] human

       being.” Appellant’s App. at 1. Therefore, involuntary manslaughter was not a




       9
         Battery is a knowing or intentional touching of another person in a rude, insolent, or angry manner. I.C. §
       35-42-2-1 (2000)



       Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015           Page 20 of 25
       factually lesser included offense in this case, and appellate counsel did not err in

       failing to raise such a claim.


[32]   Reckless homicide is an inherently lesser included offense of murder. See, e.g.,

       Lane v. State, 997 N.E.2d 83, 87-88 (Ind. Ct. App. 2013), trans. denied. The only

       difference between a reckless homicide10 and a murder11 is that the latter

       requires knowing or intentional conduct, while the former requires only reckless

       conduct. Webb, 963 N.E.2d at 1106. Therefore, we must determine if the

       evidence presented at trial by both parties created a serious evidentiary dispute

       about whether Abbott knowingly12 or recklessly killed Methene. Wright, 658

       N.E.2d at 567.


[33]   Here there is no serious evidentiary dispute that Abbott acted knowingly and

       intentionally. The evidence shows that he went to a friend’s house to get a gun,

       got the gun, loaded the gun on the way to confront Methene about money, took

       the gun with him when he got out of the car to confront Methene, got in an

       argument with Methene, and shot Methene in the back as Methene walked

       away from him after the argument. There is no evidence in the record to show

       that Abbott shot Methene with anything less than an awareness of a high



       10
          “A person who recklessly kills another human being commits reckless homicide, a Class C felony.” I.C. §
       35-42-1-5 (2000).
       11
          “A person who knowingly or intentionally kills another human being . . . commits murder, a felony.” I.C.
       § 35-42-1-1(1) (2000).
       12
          “A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high
       probability that he is doing so.” I.C. § 35-41-2-2(b) (2000).



       Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015         Page 21 of 25
       probability that he was engaged in killing. See, e.g., Lane, 997 N.E.2d at 89

       (finding no serious evidentiary dispute that defendant acted knowingly when

       evidence showed he shot victim in the back after a botched drug transaction).

       Thus, the trial court did not abuse its discretion in refusing to instruct the jury

       on reckless homicide, and appellate counsel did not err in failing to raise such a

       claim.

                               3.        Failure to raise claims regarding sentencing


[34]   Abbott alleges that his appellate counsel was ineffective for failing to appeal his

       sentence under Indiana Appellate Rule 7(B).13 However, Abbott cites no

       authority or record evidence in support of his Rule 7(B) claim. Nor does he

       present any cogent argument as to why the sentence is inappropriate in light of

       the nature of the offense and his character, let alone why a Rule 7(B) issue

       would have been obviously stronger than the issues actually raised in his direct

       appeal. See Montgomery, 21 N.E.3d at 854. Therefore his Rule 7(B) claim is

       waived. App. R. 46(A)(8)(a); see Pierce, 29 N.E.3d at 1267.


[35]   Abbott also alleges that the sentence was “unreasonable” because the jury, not

       the judge, should have weighed the aggravating and mitigating factors.




       13
           Rule 7(B) allows us to revise a sentence if we find that the sentence is inappropriate in light of the nature
       of the offense and the character of the offender. However, “sentencing is principally a discretionary function
       in which the trial court’s judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d
       1219, 1222 (Ind. 2008).



       Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015               Page 22 of 25
       Appellant’s Br. 28-29. For the reasons noted above, this apparent

       Apprendi/Blakely claim fails.


[36]   Finally, Abbott alleges that his appellate counsel erred by not arguing that the

       trial court abused its discretion in considering the aggravating factor that Abbott

       is in need of treatment best provided in a penal facility. This claim fails for the

       same reason it failed as to the alleged ineffective assistance of trial counsel, i.e.,

       the trial court’s sentencing statement explained why Abbott’s extensive juvenile

       record and criminal history justified the use of this aggravator and, therefore,

       the trial court did not err.


[37]   Abbott’s ineffective assistance of appellate counsel claims related to sentencing

       are without merit.

                4.       Failure to raise claim that Jones’ prior out-of-court statement was
                                             inadmissible hearsay

[38]   Abbott claims his appellate counsel was ineffective for failing to raise the

       alleged inadmissibility of Jones’ January 20, 2001, prior out-of-court statement.

       However, as noted above, Abbott has not demonstrated prejudice as a result of

       the alleged error in the admission of Jones’ out of court statement. Abbott

       cannot show that, but for that error, there is a reasonable probability that the

       result of the proceedings would have been different. See, e.g., Bethea v. State, 983

       N.E.2d 1134, 1139 (Ind. 2013) (holding that, even if appellate counsel’s failure

       to raise a claim was unreasonable, the defendant still must demonstrate a

       reasonable probability that the outcome of the direct appeal would have been



       Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015   Page 23 of 25
       different). Thus, his appellate counsel was not ineffective for failing to raise this

       argument.

              5.       Failure to raise claim of prosecutorial misconduct in closing argument

[39]   As noted previously, none of the prosecutor’s statements in closing argument

       constituted misconduct; therefore, appellate counsel cannot be faulted for

       failing to raise this claim on direct appeal. Moreover, even if one or all of the

       prosecutor’s statements constituted misconduct, Abbott has failed to show

       prejudice from those statements. The record contains ample evidence upon

       which the jury could have relied for its verdict, regardless of the propriety of the

       prosecutor’s closing arguments.

         6.        Failure to adequately argue that there was insufficient evidence to prove Abbott
                                      did not act under “sudden heat”

[40]   Abbott’s final claim of inadequate assistance of appellate counsel derives from

       the third category for such claims, i.e., failure to present issues well.

       Montgomery, 21 N.E.3d at 854. As our supreme court has noted, claims in this

       category are the most difficult for defendants to advance and for reviewing

       tribunals to support. Bieghler, 690 N.E.2d at 195. “[T]his is so because such

       claims essentially require the reviewing court to reexamine and take another

       look at specific issues it has already adjudicated to determine ‘whether the new

       record citations, case references, or arguments would have had any marginal

       effect on their previous decision.’” Hollowell v. State, 19 N.E.3d 263, 270 (Ind.

       2014) (quoting Beighler, 690 N.E.2d at 195).




       Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015   Page 24 of 25
[41]   Abbott claims that, had his appellate counsel argued that Jones’ June 20, 2001,

       out-of-court statement was inadmissible hearsay, there would have been no

       basis for the finding that Abbott acted intentionally instead of “with sudden

       heat.” As we have previously explained, Abbott is mistaken that the decision in

       this case would have been any different had that statement been excluded.

       There was ample evidence in the record besides the June 20 statement to

       support the finding that Abbott acted intentionally and not “with sudden

       heat.”14


                                                       Conclusion

[42]   In sum, neither Abbott’s trial nor appellate counsel was ineffective in his

       representation of Abbott; therefore, we affirm the judgment of the post-

       conviction court.


[43]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       14
           Moreover, Abbott’s only claim as to why he acted with sudden heat is because Methene insulted him and
       then walked away from him in front of other people. However, as we held in the direct appeal, mere words
       or gestures of disrespect are not sufficient provocation to precipitate sudden heat. Abbott I, slip op. at *4-5
       (citing Gregory v. State, 540 N.E.2d 585, 593 (Ind. 1989)).




       Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015             Page 25 of 25
