MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              May 23 2019, 10:09 am

court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


APPELLANT, PRO SE                                        ATTORNEYS FOR APPELLEE
Ronald Williams                                          Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ronald Williams,                                         May 23, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         02A03-1712-PC-3000
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         02D04-1503-PC-42
                                                         02D06-1304-MR-4



Pyle, Judge.


Court of Appeals of Indiana | Memorandum Decision 02A03-1712-PC-3000 | May 23, 2019             Page 1 of 10
                                             Case Summary
[1]   In 2013, a jury convicted Ronald Williams (“Williams”) of murder.1 This

      Court affirmed Williams’ conviction on direct appeal. See Williams v. State, No.

      02A03-1311-CR-451 (Ind. Ct. App. July 31, 2014), trans. denied. In 2015,

      Williams filed a pro se petition for post-conviction relief, which was

      subsequently amended by counsel in 2017. Following a hearing, the post-

      conviction court denied Williams relief. Williams appeals the denial of his

      petition. Concluding that none of the errors alleged by Williams amount to

      ineffective assistance of trial counsel, we affirm the denial of Williams’ petition.


                                                     Issue
                 The sole issue for our review is whether the post-conviction court
                 erred in denying Williams’ petition.


                                                     Facts
[2]   We set forth the facts as follows in Williams’ direct appeal:


                 On March 14, 2013, Williams and some of his friends went to an
                 Allen County social club, where they were searched for weapons
                 before they could enter. After the club closed, Williams drove
                 some friends home. In the car were Carolyn Bolden, Trisha
                 VanCamp, Dexter King, Quintella Payne, and Mark Young.
                 Williams first dropped Payne and King at their home. Williams
                 asked who wanted to be dropped off next. Young replied that he
                 wanted to be taken to Eden Green. Williams stated that he did




      1
          I.C. § 35-42-1-1.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1712-PC-3000 | May 23, 2019   Page 2 of 10
              not want to drive there because it was 3:00 a.m. and there were
              police in the area. Williams and Young got into an argument,
              which escalated as to which one of them had more “street
              credit[sic].” Trial Tr. at 158. Williams stopped the car in front of
              a house and entered it. Upon his return, Williams had his hand
              in his pocket and drove off. Young stated that he was not scared
              and that he could shoot Williams in the back of the head.
              VanCamp reminded Williams that he knew that Young did not
              have a gun. Williams continued to argue with Young and took a
              handgun out of his pocket. Williams stopped the car, and Bolden
              escaped and began to run. Williams and Young stepped out of
              the car and continued to argue. Williams pointed the gun at
              Young’s chin and chest area. VanCamp exited the car and began
              to run. As she was running, she heard “five, six, seven” shots. Id.
              at 168. Bolden heard “more than three or four” shots. Id. at 208.

              Arturo Cruz lived near where Williams had stopped the car.
              Cruz noticed two men near the car and saw one shoot the other.
              After the victim fell to the ground, the shooter continued to shoot
              him. The shooter then drove away. Cruz called the police.
              When police arrived they found Young lying in the road with
              multiple gunshot wounds, from which he died. The autopsy
              showed that Young suffered from a wound behind his left ear, a
              wound to his right ear, a wound to his lower abdomen, a wound
              to his left groin, and wounds to his right and left legs.

      Id. at 2-3.


[3]   The State charged Williams with murder. During the first day of trial, trial

      counsel Randy Fisher (“Fisher”) told the trial court that he was attempting to

      locate possible witness Jerome Mowrey (“Mowrey”). According to Fisher,

      Mowrey’s mother had told investigators that Mowrey would testify that

      someone other than Williams had shot Young. The morning of the second day

      of trial, Fisher explained that his chief investigator had found Mowrey in Ohio

      Court of Appeals of Indiana | Memorandum Decision 02A03-1712-PC-3000 | May 23, 2019   Page 3 of 10
      the previous night but that Mowrey was uncooperative and had told the

      investigator that he did not have any information about the case. Fisher told

      the trial court that he had decided not to call Mowrey as a witness. Specifically,

      Fisher explained that the information about Mowrey’s knowledge of the case

      had come from Mowrey’s mother and not Mowrey. In addition, Mowrey had

      been uncooperative and had told the investigator that he did not know anything

      about the case. Based on these facts and circumstances, Fisher had determined

      there was no need to “expend [the] resources and jump through those hoops [to

      compel Mowrey’s presence at trial.]” (Trial Tr. at 336).


[4]   Also at trial, the State presented State’s Exhibit 32, which was a handgun found

      in the trunk of the vehicle that Williams had been driving when the murder

      occurred. Williams’ children’s mother had loaned Williams the vehicle a day

      or two before the murder. A firearm analyst testified that this handgun was not

      the murder weapon. Fisher did not object to the admission of the gun into

      evidence and stated during closing argument that the gun was clearly not the

      murder weapon. The State did not mention the gun during closing argument.

      Williams did not testify at trial.


[5]   A jury convicted Williams as charged, and the trial court sentenced him to

      sixty-five (65) years. This Court affirmed Williams’ conviction on direct

      appeal. Williams subsequently filed a pro se petition for post-conviction relief,

      which was later amended by counsel.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1712-PC-3000 | May 23, 2019   Page 4 of 10
[6]   At the hearing on the amended petition, Fisher testified that he was an

      experienced attorney who had served both as a prosecutor and as a public

      defender. Fisher also testified that he had represented Williams on a Class B

      felony burglary charge that had alleged that Williams had “broken into [the

      home of] one of the alleged eyewitnesses in the murder case and held that

      person against their will.” (PCR Hearing at 6). Fisher explained that he was

      concerned that if Williams had testified at his murder trial, he could have

      potentially opened the door to the allegations that had been made in the B

      felony burglary. According to Fisher, he was further concerned that if the jury

      had heard evidence and allegations that Williams had been threatening other

      witnesses, “certainly that would [have gone] against him for the 12 jurors

      determining the murder count.” (PCR Tr. at 8). Fisher explained that he had

      shared his concerns with Williams but had also made it very clear that it was

      Williams’ choice whether to testify because it was Williams’ constitutional

      right.


[7]   In addition, Fisher testified that he used an investigator to track down Mowery.

      Fisher’s investigator found Mowery in Ohio during Williams’ trial. However,

      Mowery was “uncooperative,” and Fisher determined that Mowery was “not

      going to be helpful to our case” and decided not to call him as a witness. (PCR

      Tr. at 21, 23).


[8]   Following the hearing, the post-conviction court issued a twenty-seven page

      order that denied Williams relief. Williams now appeals pro se the denial of his

      petition.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1712-PC-3000 | May 23, 2019   Page 5 of 10
                                                   Decision
[9]    At the outset, we note that Williams proceeds pro se. A litigant who proceeds

       pro se is held to the same rules of procedure that trained counsel is bound to

       follow. Smith v. Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans.

       denied, cert. dismissed. One risk a litigant takes when he proceeds pro se is that he

       will not know how to accomplish all the things an attorney would know how to

       accomplish. Id. When a party elects to represent himself, there is no reason for

       us to indulge in any benevolent presumption on his behalf or to waive any rule

       for the orderly and proper conduct of his appeal. Foley v. Mannor, 844 N.E.2d

       494, 502 (Ind. Ct. App. 2006).


[10]   We now turn to the merits of Williams’ argument that the post-conviction court

       erred in denying his petition. A defendant who has exhausted the direct appeal

       process may challenge the correctness of his conviction and sentence by filing a

       post-conviction petition. Parish v. State, 838 N.E.2d 495, 499 (Ind. Ct. App.

       2005), trans. denied. Post-conviction procedures do not provide an opportunity

       for a super appeal. Id. Rather, they create a narrow remedy for subsequent

       collateral challenges to convictions that must be based on grounds enumerated

       in the post-conviction rules. Id. Post-conviction proceedings are civil

       proceedings, and a defendant must establish his claims by a preponderance of

       the evidence. Id.


[11]   In reviewing the judgment of a post-conviction court, this Court considers only

       the evidence and reasonable inferences supporting its judgment. Hall v. State,


       Court of Appeals of Indiana | Memorandum Decision 02A03-1712-PC-3000 | May 23, 2019   Page 6 of 10
       849 N.E.2d 466, 468 (Ind. 2006). The post-conviction court is the sole judge of

       the evidence and the credibility of witnesses. Id. at 468-69. To prevail on

       appeal from the denial of post-conviction relief, the petitioner must show that

       the evidence as a whole leads unerringly and unmistakably to a conclusion

       opposite that reached by the post-conviction court. Id. at 469. Only where the

       evidence is without conflict and leads to but one conclusion, and the post-

       conviction court has reached the opposite conclusion, will the court’s findings

       or conclusions be disturbed as being contrary to law. Id.


[12]   Williams argues that the post-conviction court erred in denying his petition

       because he received ineffective assistance of trial counsel. We review claims of

       ineffective assistance of trial counsel under the two-prong test established in

       Strickland v. Washington, 466 U.S. 668 (1984). The defendant must show that

       trial counsel’s performance fell below an objective standard of reasonableness

       based on prevailing professional norms and that there is a reasonable

       probability that, but for counsel’s errors, the result of the proceeding would

       have been different. Moody v. State, 749 N.E.2d 65, 67 (Ind. Ct. App. 2001),

       trans. denied.


[13]   Counsel is afforded considerable discretion in choosing strategy and tactics, and

       we will accord those decisions deference on appeal. Wrinkles v. State, 749

       N.E.2d 1179, 1195 (Ind. 2001), cert. denied. Counsel’s performance is presumed

       effective, and a defendant must offer strong and convincing evidence to

       overcome this presumption. Smith v. State, 822 N.E.2d 193, 202 (Ind. Ct. App.

       2005), trans. denied. We will not speculate as to what may or may not have been

       Court of Appeals of Indiana | Memorandum Decision 02A03-1712-PC-3000 | May 23, 2019   Page 7 of 10
       advantageous trial strategy as counsel should be given deference in choosing a

       trial strategy which, at the time and under the circumstances, seems best.

       Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998).


[14]   Further, where, as here, the post-conviction judge is the same judge who

       conducted the original trial, such a jurist is uniquely situated to assess whether

       counsel’s performance fell below an objective standard of reasonableness based

       on prevailing professional norms, and whether, but for counsel’s unprofessional

       conduct, there was a reasonable probability that the jury would have reached a

       different verdict. McCullough v. State, 973 N.E.2d 62, 75 (Ind. Ct. App. 2012),

       trans. denied. See also State v. Dye, 784 N.E.2d 469, 476 (Ind. 2003) (noting that

       because the judge presided at both the original trial and post-conviction hearing,

       the judge was in “an exceptional position” to assess weight and credibility of

       factual evidence and whether defendant was deprived of a fair trial).


[15]   Here, Williams first contends that he is entitled to post-conviction relief because

       his trial counsel was ineffective for “discourag[ing]” him from testifying at trial.

       (Williams’ Br. at 8). The decision whether to testify is personal to the

       defendant and is a choice that a defendant, and not counsel, controls.

       Kimbrough v. State, 911 N.E.2d 621, 640 (Ind. Ct. App. 2009). Fisher testified at

       the post-conviction hearing that he was concerned that if Williams had testified

       at his murder trial, he could have potentially opened the door to the allegations

       that had been made in a B felony burglary charge. According to Fisher, he was

       further concerned about the jury hearing evidence and allegations that Williams

       had been threatening other witnesses. Fisher had shared these concerns with

       Court of Appeals of Indiana | Memorandum Decision 02A03-1712-PC-3000 | May 23, 2019   Page 8 of 10
       Williams but had also made it very clear that it was Williams’ choice whether

       to testify. Based on these facts and circumstances, Williams has failed to meet

       his burden to show that trial counsel rendered deficient performance.


[16]   Williams further contends that Fisher was ineffective for failing to subpoena

       Mowery to testify as a witness at trial. At the post-conviction hearing, Fisher

       explained that when the investigator found Mowery, Mowery had not been

       cooperative and that Fisher had decided not to call him as a witness. Deciding

       which witnesses to call is the “epitome of a strategic decision,” Wrinkles, 749

       N.E.2d at 1200, and such decisions are insufficient to establish ineffective

       representation. See Kelly v. State, 452 N.E.2d 907, 910 (Ind. 1983). Williams

       has failed to meet his burden to show that trial counsel’s performance was

       deficient because he failed to subpoena Mowery to testify as a witness at trial.

       Accordingly, he has failed to show that he received ineffective assistance of

       counsel on this claim.


[17]   Lastly, Williams contends that trial counsel was ineffective for failing to object

       to the admission into evidence of the gun found in the trunk of the car that he

       was driving on the night of the murder. However, we need not the address the

       deficient performance prong and will proceed directly to determine whether

       Williams has met the prejudice prong of his ineffective assistance of counsel

       claim. See Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009) (explaining that if

       we can dismiss an ineffective assistance of counsel claim on the prejudice

       prong, we need not address whether counsel’s performance was deficient).

       Because Williams has failed to either allege or prove that the result of the

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       proceedings would have been different had trial counsel objected to the gun, he

       has failed to meet his burden to show that trial counsel was ineffective. 2


[18]   Affirmed.


[19]   Najam, J., and Altice, J., concur.




       2
         Williams also argues that his post-conviction counsel was ineffective. However, Williams has waived appellate
       review of this argument because his brief three-sentence argument is supported by neither cogent argument nor
       adequate citation to authority. See Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005) (“Generally, a party
       waives any issue raised on appeal where the party fails to develop a cogent argument or provide adequate citation
       to authority and portions of the record.”), trans. denied.




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