MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                             Aug 24 2020, 10:44 am

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


APPELLANT, PRO SE                                        ATTORNEYS FOR APPELLEE
Genaro Garcia                                            Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Supervising Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Genaro Garcia,                                           August 24, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-PC-1127
        v.                                               Appeal from the Greene Circuit
                                                         Court
State of Indiana,                                        The Honorable Erik C. Allen,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         28C01-1808-PC-2



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-1127 | August 24, 2020                 Page 1 of 21
                                       Statement of the Case
[1]   Genaro Garcia (“Garcia”) appeals from the post-conviction court’s denial of his

      petition for post-conviction relief. Garcia argues that the post-conviction court

      erred by: (1) adopting the State’s proposed findings of fact and conclusions of

      law; and (2) denying him post-conviction relief on his claims of ineffective

      assistance of trial counsel. Concluding that there was no error on either

      assertion, we affirm the post-conviction court’s judgment.


[2]   We affirm.


                                                     Issues
            1. Whether the post-conviction court erred by adopting the State’s
            proposed findings of fact and conclusions of law

            2. Whether the post-conviction court erred by denying post-
            conviction relief on Garcia’s claims of ineffective assistance of trial
            counsel.

                                                     Facts
[3]   The facts of Garcia’s crime were set forth in the memorandum decision from

      his direct appeal as follows:


              The facts most favorable to the verdict reveal that in June 2015,
              Brandy Corlett, (“Mother”), drove her five-year-old daughter,
              E.T. (“E.T.”), and forty-five-year-old Garcia, a long-time family
              friend, from Spencer to Solsberry to visit family and friends.
              They stopped at the trailer where Mother’s sisters, Shelby
              (“Shelby”) and Sara (“Sara”) Newton (collectively “the
              Newtons”), lived with Sara’s boyfriend, Cameron Marling

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1127 | August 24, 2020   Page 2 of 21
        (“Marling”). An intoxicated Garcia was drinking from a half-
        gallon bottle of vodka. Shortly after arriving in Solsberry,
        Mother went out with Sara and left E.T. with Garcia at the
        Newtons’ trailer. Shelby took a nap, and Marling went to a back
        bedroom to watch television.

        While Mother was out, Garcia decided to walk down the lane
        and visit some friends who lived in a nearby trailer. E.T.
        followed Garcia, and when they reached a tree-lined area, Garcia
        pulled E.T. to the side of the lane, sat her down, pushed her
        underwear to the side, and licked her vagina. Thereafter, E.T.
        followed Garcia to Garcia’s friend’s trailer. Garcia entered the
        trailer but made E.T. wait outside. E.T. subsequently ran back to
        the Newtons’ trailer. Alan Dixon (“Dixon”), who was sitting on
        his front porch, noticed a crying E.T. run by his trailer. Janice
        Corbin’s video camera on the exterior of her trailer also filmed
        E.T. running down the lane.

        When she arrived at the Newtons’ trailer, E.T. “busted through
        the door . . . and was hysteric[al].” (Tr. 321). When Marling
        asked E.T. what was wrong, she responded that Garcia “licked
        her . . . and . . . grabbed her vagina area.” (Tr. 331). Marling,
        who went searching for Garcia and found him at the friend’s
        trailer, punched Garcia twice. Garcia asked “what was that for,”
        and Marling responded, “you know what that was for.” (Tr.
        332). Garcia did not respond.

        Marling called Mother to tell her what had happened, and
        Mother quickly returned to the Newtons’ trailer. As soon as
        Mother pulled up in front of the trailer, a crying E.T. ran out to
        the car. Mother went to look for Garcia and found him walking
        down the lane with a baseball bat. Mother jumped out of the car
        and told him that he was going to go to jail. After he told her
        that he had not done anything, Mother grabbed the baseball bat
        and began hitting him with it.

        Green County Sheriff’s Department Deputy Brian Woodall
        (“Deputy Woodall”) was dispatched to the Newtons’ trailer,

Court of Appeals of Indiana | Memorandum Decision 19A-PC-1127 | August 24, 2020   Page 3 of 21
           where he arrested an intoxicated Garcia. In the meantime,
           Mother drove E.T. to St. Vincent Hospital in Indianapolis.
           Sexual assault nurse examiner Megan Merriman, (“Nurse
           Merriman”), who has special training in assessing and examining
           child sexual abuse victims, met with E.T. Nurse Merriman
           discussed the sexual abuse with E.T. and explained that she was
           a nurse who was there to help E.T. The five-year-old girl told
           Nurse Merriman that she had taken a walk with Garcia, and he
           had told her “to show [her] pee pee and then he started licking
           [her] butt. [She] told him to stop it and he didn’t stop. . . .”1 (Tr.
           412-13). Nurse Merriman also collected E.T.’s one-piece dress
           that snapped at the crotch and took swabs from her genitals. The
           genital swabs tested positive for amylase, which is found in saliva
           and other body fluids, and the crotch of the dress contained
           DNA that was consistent with Garcia’s DNA.

           The State charged Garcia with Level 1 felony child molesting on
           August 3, 2015, and on September 21, 2015, the trial court set
           Garcia’s jury trial for December 1, 2015. In October 2015, the
           State filed a motion for a continuance because Nurse Merriman,
           a critical State’s witness, was on maternity leave until the end of
           January 2016. The trial court granted the motion and scheduled
           the trial for February 9, 2016. Three days later, Garcia filed a
           motion for a speedy trial [under Criminal Rule 4(B)(1)2], which
           would have required the State to try him by January 4, 2016.
           The State responded with a Criminal Rule 4(D) motion asking
           the trial court to “reaffirm the February 9th trial date due to the
           State’s essential witness being unavailable for trial during the 70-
           day speedy trial window.” (App. 74). The trial court granted the
           State’s motion after a hearing.




1
    E.T. referred to her vagina as both her “pee pee” and her “butt.” (Tr. 413).
2
  Under Criminal Rule 4(B)(1), a defendant moves for an “early trial” within “seventy (70) calendar days
from the date of such motion[,]” and the rule contains certain exceptions.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-1127 | August 24, 2020                 Page 4 of 21
              Garcia’s trial began as scheduled on February 9, 2016. Before
              E.T. gave her substantive testimony at trial, the State asked her
              several questions to demonstrate her competency. Thereafter,
              E.T. testified that Garcia moved her underwear to the side and
              “licked her . . . private parts . . . .” (Tr. 252). Also at trial,
              Garcia made a hearsay objection to Marling’s testimony that
              E.T. had told him that Garcia had “licked her . . . and . . .
              grabbed her vagina area.” (Tr. 331). Garcia also made a hearsay
              objection to Nurse Merriman’s testimony that E.T. had told her
              that Garcia had told E.T. to “show [her] pee pee and then he
              started licking [her] butt.” (Tr. 412).

      Garcia v. State, No. 28A01-1604-CR-762 *1-2 (Ind. Ct. App. May 25, 2017),

      (footnote 1 above appearing in the opinion as footnote 2; footnote 2 above

      added), trans. denied.


[4]   When Garcia’s counsel3 cross-examined E.T., counsel asked the child about

      whether she had previously been in the courtroom. After E.T. stated that she

      had been in the courtroom the week before the trial, Garcia’s counsel asked her

      who had been in the courtroom with her, whether she had practiced what she

      needed to say at trial, and whether the prosecutor had instructed her about what

      to say and how to say it. Thereafter, the prosecutor informed the trial court that

      it was going to call Julie Criger (“Criger”), who was an investigator with the

      prosecutor’s office, as a witness due to Garcia’s counsel’s suggestion that the

      prosecutor had coached E.T. about her testimony. The prosecutor stated that




      3
       At trial, Garcia was represented by James Riester (“Trial Counsel Riester”) and Ellen Martin (“Trial
      Counsel Martin”). Trial Counsel Martin conducted the cross-examination of E.T.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1127 | August 24, 2020                 Page 5 of 21
      Criger had been present in the courtroom when he was there with E.T. the prior

      week. Garcia’s counsel objected, stating that Criger had not been on the State’s

      witness list. The prosecutor stated that he had not planned on calling Criger as

      a witness until Garcia had opened the door to her testimony. The trial court

      overruled Garcia’s objection and allowed Criger to testify. Criger testified that

      she had been in the courtroom the prior week when the prosecutor had been

      there with E.T. and that at no time did anyone tell E.T. what to say. Criger

      also testified that it was a common practice to take a child into a courtroom

      prior to a trial to make the child comfortable and familiarize the child with the

      setting. Garcia’s counsel did not cross-examine Criger.


              Following a four-day trial, the jury convicted Garcia of child
              molesting as a Level 1 felony. Evidence presented at the
              sentencing hearing revealed that Garcia has an extensive legal
              history that spans four states and almost thirty years. He has six
              felony and eleven misdemeanor convictions and has been twice
              unsatisfactorily terminated from probation. In addition, he was
              on parole when he molested E.T. After hearing the evidence, the
              trial court found no mitigating factors and the following
              aggravating factors: (1) E.T.’s age; (2) Garcia’s position of trust
              with E.T.; (3) Garcia’s probation violations; and (4) the fact that
              Garcia was on parole when he molested E.T. The trial court
              sentenced Garcia to forty (40) years.

      Garcia, No. 28A01-1604-CR-762 at *2.


[5]   On direct appeal, Garcia raised five arguments. Specifically, he argued that:

      (1) the trial court abused its discretion when it granted the State’s Indiana

      Criminal Rule 4(D) motion to continue the trial; (2) the trial court abused its


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1127 | August 24, 2020   Page 6 of 21
      discretion by admitting Marling’s and Nurse Merriman’s testimony recounting

      the child victim’s statement that Garcia had licked her vagina; (3) the trial court

      committed fundamental error when it admitted the child victim’s testimony

      without first determining whether she was a competent witness; (4) there was

      insufficient evidence to support his conviction; and (5) his sentence was

      inappropriate. In May 2017, our Court issued a memorandum decision,

      affirming Garcia’s conviction and sentence. In relevant part, we held that the

      trial court had not abused its discretion by determining that Nurse Merriman

      was an unavailable witness and granting the State’s Rule 4(D) motion to

      continue the trial. Garcia, No. 28A01-1604-CR-762 at *4. We also held that

      Marling’s testimony had been admissible under the excited utterance hearsay

      exception and that Nurse Merriman’s testimony had been admissible under the

      hearsay exception for medical diagnosis and treatment. Id. at *5-6.

      Additionally, we explained that the child victim’s competency had been

      established prior to her testimony and that there was “no error, fundamental or

      otherwise.” Id. at *6.


[6]   Subsequently, in August 2018, Garcia filed a pro se petition for post-conviction

      relief, raising approximately twenty claims of ineffective assistance of trial

      counsel.4 He alleged, in relevant part, that his trial counsel had rendered

      ineffective assistance by failing to: (1) file a motion to suppress the probable



      4
        Garcia also raised numerous claims of ineffective assistance of appellate counsel. Garcia, however, did not
      call his appellate counsel as a witness at the post-conviction hearing and does not raise any claims of
      ineffective assistance of appellate counsel in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1127 | August 24, 2020                  Page 7 of 21
      cause affidavit and arrest warrant; (2) depose the State’s expert scientific

      witnesses and file a motion to exclude the DNA evidence; (3) object that the

      State had failed to establish that Nurse Merriman was an unavailable witness;

      (4) litigate Garcia’s speedy trial rights under Criminal Rule 4(A); 5 (5) object to

      or move for a mistrial for the State leading the child victim and the child

      victim’s “incompetent” testimony; (6) file a motion for mistrial or dismissal

      when Julie Criger testified regarding whether the child victim’s testimony had

      been coached; and (7) move for a continuance or a severance to prepare for the

      State’s “surprise witness” testimony. (App. Vol. 2 at 75).


[7]   In January 2019, the post-conviction court held a hearing on Garcia’s post-

      conviction petition. During the hearing, Garcia represented himself pro se and




      5
          Criminal Rule 4(A) provides:

                 (A) Defendant in Jail. No defendant shall be detained in jail on a charge, without a trial,
                 for a period in aggregate embracing more than six (6) months from the date the criminal
                 charge against such defendant is filed, or from the date of his arrest on such charge
                 (whichever is later); except where a continuance was had on his motion, or the delay was
                 caused by his act, or where there was not sufficient time to try him during such period
                 because of congestion of the court calendar; provided, however, that in the last-mentioned
                 circumstance, the prosecuting attorney shall make such statement in a motion for
                 continuance not later than ten (10) days prior to the date set for trial, or if such motion is
                 filed less than ten (10) days prior to trial, the prosecuting attorney shall show additionally
                 that the delay in filing the motion was not the fault of the prosecutor. Provided further, that
                 a trial court may take note of congestion or an emergency without the necessity of a
                 motion, and upon so finding may order a continuance. Any continuance granted due to a
                 congested calendar or emergency shall be reduced to an order, which order shall also set
                 the case for trial within a reasonable time. Any defendant so detained shall be released on
                 his own recognizance at the conclusion of the six-month period aforesaid and may be held
                 to answer a criminal charge against him within the limitations provided for in subsection
                 (C) of this rule.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1127 | August 24, 2020                       Page 8 of 21
       called Trial Counsel Riester as a witness. Pursuant to Garcia’s request, the

       post-conviction court took judicial notice of the trial record.


[8]    Trial Counsel Riester testified that he had forty-five years of experience working

       in criminal law and that he had “spent hundreds of hours” working on Garcia’s

       case in the months prior to trial. (Tr. Vol. 2 at 20). He testified that he and

       another attorney had worked on Garcia’s case. Trial Counsel Riester also

       explained that he was unable to answer specific details about his trial

       preparation because he had given Garcia his case file when Garcia had

       requested it.


[9]    When Garcia questioned Trial Counsel Riester about his investigation of the

       probable cause affidavit, Garcia asked Trial Counsel Riester why he had not

       filed a motion to suppress the probable cause affidavit based on hearsay

       statements from Shelby Newton that were in the affidavit. Trial Counsel

       Riester responded that there was “no legal basis” to file a motion to suppress.

       (Tr. Vol. 2 at 61). Trial counsel told Garcia that the State had established

       probable cause with E.T.’s testimony that had been included in the probable

       cause affidavit.


[10]   Garcia also questioned Trial Counsel Riester about his pretrial investigation of

       the DNA expert and DNA evidence. Garcia pointed to Trial Counsel Riester’s

       cross-examination of the DNA expert and how Trial Counsel Riester elicited

       testimony from her that was favorable to Garcia’s defense. Garcia then asked

       Trial Counsel Riester how he had “investigate[d]” and prepared for the DNA


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1127 | August 24, 2020   Page 9 of 21
       witness. (Tr. Vol. 2 at 43). Trial Counsel Riester responded that he had “hired

       an expert [who] had a Ph.D. in forensic medicine to talk to [Trial Counsel

       Riester] about what all of these tests that were done, how to interpret them in

       the case[,] and . . . subpoenaed [the expert] as a witness and had him interpret

       all of these to the jury.” (Tr. Vol. 2 at 43). When Garcia asked Trial Counsel

       Riester why he had not moved to exclude the DNA evidence, Trial Counsel

       Riester explained that the evidence was relevant and that there was no legal

       basis to exclude the evidence. Trial Counsel Riester further testified that the

       DNA expert’s testimony “that she couldn’t find [Garcia’s] DNA on the

       [victim’s] clothing helped us” and that he did not want to exclude “evidence

       that tends to be exculpatory in nature[.]” (Tr. Vol. 2 at 50, 52). Trial Counsel

       Riester further explained:


               Well, my principal strategy was when you look at all of the DNA
               evidence and all the amylase evidence, I had an expert with a
               Ph.D. in Forensic Study get on the stand and say, unless there is
               DNA from the Defendant and amylase in the same sample, there
               is no way that he could have done this. That was my strategy.
               And he said that. That’s exactly what he said, if you, if you
               examined the DNA evidence and amylase evidence, and the
               evidence that the State presented in court, demonstrates that it
               couldn’t have been him. That it couldn’t have happened the way
               that she said. That’s what he testified to. That was my strategy.

       (Tr. Vol. 2 at 51).


[11]   When discussing the State’s extension sought under Criminal Rule 4(D),

       Garcia asked Trial Counsel Riester why he had not objected to the State’s

       assertion that Nurse Merriman was an unavailable witness. Trial Counsel

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1127 | August 24, 2020   Page 10 of 21
       Riester replied that he had objected and had argued that Nurse Merriman’s

       recent childbirth did not make her an unavailable witness but that the trial court

       had overruled his objection. Garcia also asked Trial Counsel Riester why he

       had not suggested that Nurse Merriman could have testified from home via

       telephone or video, and counsel explained that he did not like remote testimony

       during a jury trial and did not think it was in Garcia’s best interests.


[12]   Garcia also asked Trial Counsel Riester why he had not objected to a violation

       of Garcia’s rights under Criminal Rule 4(A), which limits the amount of time

       that a defendant may be held in jail pending trial. Garcia asserted that he

       should have been released in late January pending his February 9th trial.

       Counsel stated that he could not recall a reason for not objecting. When Garcia

       questioned Trial Counsel Riester about why he had not objected to the lack of a

       pre-trial competency hearing for the child victim, Trial Counsel Riester testified

       that he had not questioned her competency because he had believed that she

       had known the difference between right and wrong.


[13]   At the end of the hearing, the post-conviction court gave the parties the option

       to submit proposed findings and conclusions within thirty days. Thereafter, the

       post-conviction court, pursuant to Garcia’s request, granted Garcia an

       extension of time until May to file his proposed findings and conclusions. In

       late February, Garcia filed a motion to disregard his extension request, and he

       did not submit proposed findings or conclusions.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1127 | August 24, 2020   Page 11 of 21
[14]   In April 2019, the post-conviction issued an order denying Garcia’s petition for

       post-conviction relief. Garcia now appeals.


                                                   Decision
[15]   Garcia argues that the post-conviction court erred by: (1) adopting the State’s

       proposed findings of fact and conclusions of law; and (2) denying him post-

       conviction relief on his claims of ineffective assistance of trial counsel. We will

       address each argument in turn.


[16]   At the outset, we note that Garcia has chosen to proceed pro se. It is well

       settled that pro se litigants are held to the same legal standards as licensed

       attorneys. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans.

       denied. Thus, pro se litigants are bound to follow the established rules of

       procedure and must be prepared to accept the consequences of their failure to

       do so. Id. “We will not become a party’s advocate, nor will we address

       arguments that are inappropriate, improperly expressed, or too poorly

       developed to be understood.” Barrett v. State, 837 N.E.2d 1022, 1030 (Ind. Ct.

       App. 2005), trans. denied.


       1. Findings and Conclusions


[17]   We first address Garcia’s argument that the post-conviction court erred by

       adopting the State’s proposed findings and conclusions. We note that Garcia

       has not included a copy of the State’s proposed findings and conclusions in his

       Appendix, thereby impeding our appellate review of his challenge as we are

       unable to compare the State’s proposed findings with the post-conviction
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1127 | August 24, 2020   Page 12 of 21
       court’s order. Nevertheless, even if the post-conviction court adopted the

       State’s findings and conclusions, our supreme court has explained that “[i]t is

       not uncommon for a trial court to enter findings that are verbatim

       reproductions of submissions by the prevailing party.” Prowell v. State, 741

       N.E.2d 704, 708 (Ind. 2001). Indeed, a post-conviction court’s “verbatim

       adoption of a party’s proposed findings may have important practical

       advantages[,]” and our supreme court has “expressly declined to prohibit the

       practice.” Stevens v. State, 770 N.E.2d 739, 762 (Ind. 2002) (citing Prowell, 741

       N.E.2d at 708-09), reh’g denied, cert. denied. While our supreme court does “not

       encourage post-conviction court judges to adopt wholesale the findings and

       conclusions of either party,” our appellate courts “decline to find bias solely on

       that basis.” Pruitt v. State, 903 N.E.2d 899, 940 (Ind. 2009) (internal quotation

       marks and citation omitted), reh’g denied. Instead, the “critical inquiry is

       whether the findings adopted by the court are clearly erroneous.” Id.


[18]   Garcia contends that the post-conviction order is erroneous because it did not

       address his claim that trial counsel had rendered ineffective assistance by failing

       to object to the State’s discussion of DNA evidence during its closing argument.

       Garcia, however, did not raise this claim in his post-conviction petition. “Any

       ‘[i]ssues not raised in the petition for post-conviction relief may not be raised for

       the first time on post-conviction appeal.’” Stevens, 770 N.E.2d at 746 (quoting

       Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001), reh’g denied, cert. denied)

       (alteration in original). See also Ind. Post-Conviction Rule 1(8) (“All grounds

       for relief available to a petitioner under this rule must be raised in his original

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1127 | August 24, 2020   Page 13 of 21
       petition.”). Accordingly, the post-conviction order is not erroneous based on

       the absence of a finding about this claim.6


[19]   Garcia also contends that the post-conviction order contains an erroneous

       finding regarding his “surprise witness” claim. (Garcia’s Br. 43). When the

       post-conviction court addressed Garcia’s claim that trial counsel had rendered

       ineffective assistance by failing to move for a continuance to prepare for the

       State’s surprise witness’s testimony, it found that Garcia had “not pointed to a

       specific State witness whose testimony prejudiced him by not allowing him to

       prepare for cross-examination or how he was otherwise surprised by the

       witness’s appearance at trial.” (App. Vol. 2 at 90). We recognize that, during

       the post-conviction hearing, Garcia mentioned Julie Criger as the surprise

       witness and questioned Trial Counsel Riester about why he had not moved for

       a continuance or objected to Criger’s testimony. Trial Counsel Riester

       explained that he had not moved for a continuance because he had been

       prepared for trial and because there had been nothing inappropriate about her

       testimony. On appeal, Garcia does not argue that he was prejudiced by Criger’s

       testimony or that he is otherwise entitled to post-conviction relief on this claim

       of ineffective assistance of counsel; instead, he argues only that the post-

       conviction court erred by not recognizing that the surprise witness was Criger.




       6
        We note that, during the post-conviction hearing, Garcia asked Trial Counsel Riester about his lack of
       objection to the State’s closing argument. Trial Counsel Riester did not recall any specific reason for not
       objecting but stated that he “certainly in closing argued to the contrary.” (Tr. Vol. 2 at 53). In his Appellant
       Brief, Garcia does not argue that Trial Counsel Riester’s strategy to address the DNA evidence during the
       defense closing argument constituted deficient performance or prejudiced him.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1127 | August 24, 2020                    Page 14 of 21
       Thus, Garcia has not shown that the post-conviction court erred by adopting

       the State’s proposed findings and conclusions.7


       2. Ineffective Assistance of Counsel


[20]   Next, we turn to Garcia’s argument that the post-conviction court erred by

       denying him post-conviction relief on his claims of ineffective assistance of trial

       counsel. Our standard of review in post-conviction proceedings is well settled.


                We observe that post-conviction proceedings do not grant a
                petitioner a “super-appeal” but are limited to those issues
                available under the Indiana Post-Conviction Rules. Post-
                conviction proceedings are civil in nature, and petitioners bear
                the burden of proving their grounds for relief by a preponderance
                of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner
                who appeals the denial of PCR faces a rigorous standard of
                review, as the reviewing court may consider only the evidence
                and the reasonable inferences supporting the judgment of the
                post-conviction court. The appellate court must accept the post-
                conviction court’s findings of fact and may reverse only if the
                findings are clearly erroneous. If a PCR petitioner was denied
                relief, he or she must show that the evidence as a whole leads


       7
          We also reject Garcia’s other assertions of error by the post-conviction court. He mentions that the post-
       conviction court erred by denying a motion for default judgment and a motion to strike. Garcia did not
       include these motions or the post-conviction court’s order on these motions in his appellate appendix.
       Moreover, he fails to make a cogent argument to explain how the post-conviction court’s rulings were
       erroneous. Accordingly, he has waived these arguments. See Ind. App. Rule 46(A)(8)(a). See also Griffith v.
       State, 59 N.E.3d 947, 958 n.5 (Ind. 2016) (noting that the defendant had waived his arguments by failing to
       provide cogent argument). Additionally, Garcia has waived his contention that the post-conviction court
       somehow “misled” him during a March 2019 hearing about whether he needed to file proposed findings and
       conclusions. (Garcia’s Br. 46). Garcia did not request a transcription of the March 2019 hearing; thus, we
       cannot review his allegation of error. Moreover, the record on appeal shows that, at the end of the post-
       conviction hearing, the post-conviction court informed Garcia that he could file proposed findings and
       conclusions if he so chose. The post-conviction court granted Garcia an extension to file his proposed
       findings and conclusions, but then in late February 2019, Garcia filed a motion to disregard his extension
       request, and he did not submit proposed findings or conclusions.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1127 | August 24, 2020                 Page 15 of 21
               unerringly and unmistakably to an opposite conclusion than that
               reached by the post-conviction court.

       Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal case

       citations omitted), trans. denied. Additionally, “[w]e will not reweigh the

       evidence or judge the credibility of the witnesses; we examine only the

       probative evidence and reasonable inferences that support the decision of the

       post-conviction court.” Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007),

       reh’g denied, cert. denied.


[21]   On appeal, Garcia challenges some, but not all, of the ineffective assistance of

       counsel claims that he raised in his post-conviction petition. His ineffective

       assistance of counsel claims can be condensed into two categories: (1) failure to

       conduct pretrial investigation; and (2) failure to object. As for the failure to

       conduct pretrial investigation claims, Garcia asserts that his trial counsel: (a)

       failed to investigate and suppress the probable cause affidavit; and (b) failed to

       depose the State’s DNA expert witnesses and then file a motion to exclude the

       DNA evidence. In regard to the failure to object claims, Garcia argues that his

       trial counsel rendered ineffective assistance by failing to object to the following:

       (a) the State’s assertion that Nurse Merriman was an unavailable witness; (b)

       the violation of Garcia’s speedy trial rights under Criminal Rule 4(A); and (c)




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1127 | August 24, 2020   Page 16 of 21
       the trial court’s lack of a competency exam for E.T. prior to trial, making it

       fundamental error.8


[22]   A claim of ineffective assistance of counsel requires a showing that: (1)

       counsel’s performance was deficient by falling below an objective standard of

       reasonableness based on prevailing professional norms; and (2) counsel’s

       performance prejudiced the defendant such that “‘there is a reasonable

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

       proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444

       (Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984), reh’g

       denied), reh’g denied, cert. denied. “A reasonable probability arises when there is a

       ‘probability sufficient to undermine confidence in the outcome.’” Grinstead v.

       State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466 U.S. at 694).

       “Failure to satisfy either of the two prongs will cause the claim to fail.” Gulzar

       v. State, 971 N.E.2d 1258, 1261 (Ind. Ct. App. 2012) (citing French v. State, 778

       N.E.2d 816, 824 (Ind. 2002)), trans. denied. “Indeed, most ineffective assistance

       of counsel claims can be resolved by a prejudice inquiry alone.” French, 778




       8
         Garcia also argues that his trial counsel rendered ineffective assistance by failing to object to Nurse
       Merriman’s trial testimony and Marling’s trial testimony regarding E.T.’s statements to them about what
       Garcia had done to her. These claims are waived because Garcia did not raise these claims in his post-
       conviction petition. See Stevens, 770 N.E.2d at 746; Ind. Post-Conviction Rule 1(8). Waiver notwithstanding,
       Garcia challenged both Nurse Merriman’s and Marling’s testimonies on direct appeal, and we held that their
       testimony was admissible under various hearsay exceptions. We further note that Garcia attempts to raise
       additional ineffective assistance of counsel arguments in his reply brief, but those arguments are waived.
       See Snow v. State, 137 N.E.3d 965, 969 (Ind. Ct. App. 2019) (“The law is well settled that grounds for error
       may only be framed in an appellant’s initial brief and if addressed for the first time in the reply brief, they
       are waived.”), reh’g denied, trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1127 | August 24, 2020                  Page 17 of 21
       N.E.2d at 824. Therefore, if we can dismiss an ineffective assistance claim on

       the prejudice prong, we need not address whether counsel’s performance was

       deficient. Henley v. State, 881 N.E.2d 639, 645 (Ind. 2008).


[23]   We first turn to Garcia’s ineffective assistance claims regarding trial counsel’s

       failure to conduct pretrial investigation. When our Court reviews a claim of

       ineffective assistance for failure to investigate, “we apply a great deal of

       deference to counsel’s judgments.” McKnight v. State, 1 N.E.3d 193, 201 (Ind.

       Ct. App. 2013). We acknowledge that “effective representation requires

       adequate pretrial investigation and preparation,” but we will “resist judging an

       attorney’s performance with the benefit of hindsight.” Id. at 200. “‘[S]trategic

       choices made after thorough investigation of law and facts relevant to plausible

       options are virtually unchallengeable; and strategic choices made after less than

       complete investigation are reasonable precisely to the extent that reasonable

       professional judgments support the limitation on investigation.’” Id. at 201

       (quoting Strickland, 466 U.S. at 690-91). A petitioner who seeks to establish

       failure to investigate as a ground for ineffective assistance of counsel is required

       to “go[] beyond the trial record to show what investigation, if undertaken,

       would have produced.” McKnight, 1 N.E.3d at 201. “This is necessary because

       success on the prejudice prong of an ineffectiveness claim requires a showing of

       a reasonable probability of affecting the result.” Id. (internal quotation marks

       and citation omitted).


[24]   Garcia has failed to establish that his trial counsel’s pretrial investigation of the

       probable cause affidavit and the State’s DNA witnesses fell below an objective

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1127 | August 24, 2020   Page 18 of 21
       standard of reasonableness. Contrary to Garcia’s assertion, trial counsel had

       reviewed both the probable cause affidavit and the DNA evidence and had

       made a strategic decision not to seek to suppress or exclude either one. Because

       trial counsel made a reasonable strategic decision, Garcia has failed to show

       that his performance was deficient. See Smith v. State, 765 N.E.2d 578, 585

       (Ind. 2002) (“Isolated mistakes, poor strategy, inexperience, and instances of

       bad judgment do not necessarily render representation ineffective.”), reh’g

       denied. Additionally, Garcia has not established that he suffered prejudice such

       that the outcome of the proceeding would have been different. Thus, he has

       failed to meet his burden of showing that he was entitled to post-conviction

       relief on these claims.


[25]   Lastly, we review Garcia’s ineffective assistance claims regarding counsel’s

       failure to object. To demonstrate ineffective assistance of trial counsel for

       failure to object, a petitioner must prove that an objection would have been

       sustained if made and that he was prejudiced by counsel’s failure to make an

       objection. Kubsch v. State, 934 N.E.2d 1138, 1150 (Ind. 2010), reh’g denied.


[26]   Garcia has failed to meet his burden of establishing grounds for relief on his

       three ineffective assistance of counsel claims relating to counsel’s failure to

       object. First, Garcia is not entitled to relief on his claim that fundamental error

       occurred because his trial counsel failed to object to the trial court’s lack of a

       competency exam for E.T. prior to trial. Claims of fundamental error are not

       cognizable in a post-conviction proceeding. Sanders v. State, 765 N.E.2d 591,



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1127 | August 24, 2020   Page 19 of 21
       592 (Ind. 2002). Therefore, Garcia is not entitled to post-conviction relief on

       this claim.


[27]   Second, as to Garcia’s challenge that counsel should have objected to the

       State’s assertion that Nurse Merriman was an unavailable witness, we note that

       Garcia fails to recognize that his counsel did indeed challenge the unavailability

       of Nurse Merriman. He also fails to acknowledge that the issue was raised in

       his direct appeal and that we held that the trial court did not abuse its discretion

       by finding Nurse Merriman to be an unavailable witness and granting the

       State’s continuance motion. Accordingly, Garcia has failed to show that

       counsel’s performance was deficient and that he is entitled to relief on this

       claim.


[28]   Third, Garcia also failed to meet his burden on his claim that counsel was

       ineffective for failing to object to a violation of Garcia’s speedy trial rights under

       Criminal Rule 4(A) so that he would not have been detained for a couple of

       weeks pending his trial. As explained in Criminal Rule 4(A) itself, any remedy

       for a violation of Rule 4(A) is release pending trial, not discharge. See Crim. R.

       4(A). Even if counsel’s performance had been deficient, Garcia has made

       absolutely no showing that there is a reasonable probability that, but for his trial

       counsel’s alleged errors, the result of the proceeding would have been different.

       Accordingly, we affirm the post-conviction court’s denial of post-conviction

       relief on Garcia’s ineffective assistance of trial counsel claims. See French, 778

       N.E.2d at 824 (holding that a petitioner’s failure to satisfy either of the two

       prongs of an ineffective assistance of counsel will cause the claim to fail).

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1127 | August 24, 2020   Page 20 of 21
[29]   Affirmed.


       Mathias, J., and Baker, Sr.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1127 | August 24, 2020   Page 21 of 21
