MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Jul 19 2017, 6:11 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Beverly Bourn Marker                                      Curtis T. Hill, Jr.
Camby, Indiana                                            Attorney General of Indiana

                                                          Michael Gene Worden
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Mark Bonds,                                               July 19, 2017
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          49A02-1608-PC-1943
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Sheila A. Carlisle,
Appellee-Respondent                                       Judge
                                                          The Honorable Stanley E. Kroh,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49G03-1009-PC-74984



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1943 | July 19, 2017          Page 1 of 15
                                             Case Summary
[1]   Mark Bonds appeals the denial of his petition for postconviction relief (“PCR”).

      He raises several freestanding claims of error, maintains that he was denied his

      constitutional right to effective assistance of counsel, and challenges the

      postconviction court’s denial of his motion for new DNA testing. Finding that

      he waived his freestanding claims of error and that he failed to establish

      ineffective assistance of counsel or error in the denial of his motion for new

      DNA testing, we affirm.


                                  Facts and Procedural History
[2]   The relevant facts as summarized in an unpublished memorandum decision in

      Bonds’s direct appeal read in pertinent part as follows:

              Bonds began dating D.C.’s mother when D.C. was eleven years
              old. When D.C. was twelve years old, she told her mother that
              Bonds had molested her, and the couple broke up. D.C. later
              recanted, and the couple resumed dating when D.C. was thirteen
              years old.


              In 2010, D.C. was thirteen, and Bonds was twenty-four years
              old. D.C.’s family had a two-bedroom, two-story apartment.
              D.C. and her brother each had a bedroom upstairs, and their
              mother slept downstairs. On September 10, D.C. slept with her
              younger brother, D.V., because her bed was covered with
              clothes, and Bonds stayed overnight with their mother
              downstairs. Early the next morning, Bonds went upstairs and,
              using his cell phone to illuminate the room, looked in on the
              children, who were still sleeping. The light from the cell phone
              woke D.C. Bonds uncovered her, pulled down her shorts and
              underwear, and placed his mouth on her vagina. Bonds then had

      Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1943 | July 19, 2017   Page 2 of 15
        intercourse with D.C. D.C. cried, told Bonds “no” and that “the
        Devil is a liar,” but he did not stop. At some point, D.V. also
        woke. When Bonds left the room, D.C. put her underwear and
        shorts back on.


        D.C.’s mother saw Bonds come down the stairs at approximately
        5:30 that morning. She noticed that he looked sweaty, and
        Bonds told her he had been sick in the bathroom upstairs. The
        home also contained a bathroom downstairs. The mother went
        to retrieve a towel and spoke to D.V., who told her what Bonds
        had done to D.C.


        After Bonds left the house, the mother asked D.C. what had
        happened, and D.C. related what Bonds had done that morning
        and that Bonds had molested her the prior week, too. The
        mother then telephoned the police. D.C. was given a rape kit
        examination. The vaginal swab revealed spermatozoa matching
        Bonds’ DNA profile, but the test also showed another DNA
        contributor besides D.C. and Bonds. Additionally, amylase, a
        substance in saliva, was found in the crotch of D.C.’s underwear.
        The amylase also matched Bonds’ DNA profile. Additional tests
        revealed that substantial amounts of D.C.’s DNA were found on
        Bonds’ hands.


        On September 30, the State charged Bonds with three counts of
        child molesting, as Class A felonies; six counts of child
        molesting, as Class C felonies; two counts of criminal
        confinement, as Class C felonies; one count of strangulation, as a
        Class D felony; and one count of battery, as a Class D felony.
        On January 5, 2011, the court granted the State’s motion to
        amend the information to add five counts of child molesting, as
        Class A felonies, and two counts of child molesting as Class C
        felonies, for a total of twenty counts. At the conclusion of the
        trial, the trial court granted Bonds’ motion for judgment on the
        evidence on ten counts, the jury found Bonds guilty of four
        counts, and the jury found Bonds not guilty on the remaining six
Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1943 | July 19, 2017   Page 3 of 15
              counts. However, the trial court subsequently granted Bonds’
              motion for a mistrial due to juror misconduct.


              On October 29 through 31, 2012, a second jury trial was held on
              the six counts on which the first jury had found Bonds guilty:
              four counts of child molesting, as Class A felonies, and two
              counts of child molesting, as Class C felonies. The jury found
              Bonds guilty of two counts of Class A felony child molesting and
              one count of Class C felony child molesting. At sentencing, the
              trial court did not enter judgment of conviction on the Class C
              felony count on double jeopardy grounds. The court found the
              aggravators and mitigators to balance and sentenced Bonds to
              concurrent thirty-year terms with five years suspended, three
              years of the suspended portion to be served on sex offender
              probation, and ordered Bonds not to have any contact with the
              victim or her family.


      Bonds v. State, No. 49A02-1212-CR-974, 2013 WL 2407101, at *1-2 (Ind. Ct.

      App. June 4, 2013) (citations omitted), trans. denied.


[3]   Bonds filed a direct appeal, challenging the sufficiency of the evidence to

      support his convictions. Finding the evidence sufficient, another panel of this

      Court affirmed his convictions.


[4]   In September 2013, Bonds filed a petition for postconviction relief. He

      requested and received pauper counsel, but counsel subsequently withdrew its

      representation. In 2015, acting pro se, he filed three amendments to his PCR

      petition, a motion for summary judgment, a motion to compel production of

      DNA samples for independent testing, and a request to subpoena certain

      witnesses. The postconviction court denied his motion for production of DNA,


      Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1943 | July 19, 2017   Page 4 of 15
      his motion for summary judgment, and his request for subpoenas, finding that

      the witnesses were not proper witnesses and that Bonds had failed to file an

      affidavit in support of his subpoena request. At the evidentiary hearing, Bonds

      offered exhibits, many of which the court declined to admit, but did not present

      any witness testimony. He indicated a desire to submit more documentation to

      the court, and the court allowed him an additional three months to file

      affidavits. In July 2016, the postconviction court issued an order with findings

      of fact and conclusions of law denying Bonds’s PCR petition. Bonds filed a

      motion to reconsider, which was also denied.


[5]   Bonds now appeals. Additional facts will be provided as necessary.


                                     Discussion and Decision
[6]   Bonds contends that the postconviction court erred in denying his PCR

      petition. The petitioner in a postconviction proceeding “bears the burden of

      establishing grounds for relief by a preponderance of the evidence.” Ind. Post-

      Conviction Rule 1(5); Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013).

      When issuing its decision to grant or deny relief, the postconviction court must

      make findings of fact and conclusions of law. Ind. Post-Conviction Rule 1(6).

      A petitioner who appeals the denial of his postconviction petition faces a

      rigorous standard of review. Massey v. State, 955 N.E.2d 247, 253 (Ind. 2011).

      In conducting our review, we neither reweigh evidence nor judge witness

      credibility; rather, we consider only the evidence and reasonable inferences

      most favorable to the judgment. McKnight v. State, 1 N.E.3d 193, 199 (Ind. Ct.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1943 | July 19, 2017   Page 5 of 15
      App. 2013), trans. denied (2014). “A post-conviction court’s findings and

      judgment will be reversed only upon a showing of clear error—that which

      leaves us with a definite and firm conviction that a mistake has been made.”

      Passwater, 989 N.E.2d at 770 (citation and quotation marks omitted). In other

      words, if a postconviction petitioner was denied relief in the proceedings below,

      he must show that the evidence as a whole leads unerringly and unmistakably

      to a conclusion opposite the one reached by the postconviction court. Massey,

      955 N.E.2d at 253.


[7]   Postconviction relief does not offer the petitioner a super appeal; rather,

      subsequent collateral challenges must be based on grounds enumerated in the

      postconviction rules. McKnight, 1 N.E.3d at 199. These rules limit the scope of

      relief to issues unknown or unavailable to the petitioner on direct appeal. Id.

      Where, as here, the judge who presided over the defendant’s trial is also the

      judge who presided over his postconviction proceedings, the postconviction

      court’s findings and judgment should be entitled to “greater than usual

      deference.” Hinesley v. State, 999 N.E.2d 975, 982 (Ind. Ct. App. 2013) (citation

      omitted), trans. denied (2014).


[8]   At the outset, we note that Bonds chose to proceed pro se, both in the PCR

      proceedings below and in filing his initial appellant’s brief in this appeal. 1 It is

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



      1
        Bonds retained representation after he filed his initial appellant’s brief, and his reply brief was written and
      submitted by counsel.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1943 | July 19, 2017                  Page 6 of 15
      attorneys. Lowrance v. State, 64 N.E.3d 935, 938 (Ind. Ct. App. 2016), trans.

      denied (2017). This means that they must follow our established rules of

      procedure and accept the consequences when they fail to do so. Id. It is not the

      court’s role to become an “advocate for a party, or address arguments that are

      inappropriate or too poorly developed or expressed to be understood.” Id.


           Section 1 – Bonds’s freestanding claims of error are
       unavailable for consideration in postconviction proceedings.
[9]   Bonds raises freestanding claims of (1) trial court error in the admission of

      evidence; and (2) prosecutorial misconduct for “introduc[ing] false documents

      and failing to disclose a full chain of custody report and intentionally using

      purjured [sic] testimony of State witnesses; also purjurying [sic] closing

      argument about evidence results.” Appellant’s Br. at 15. Because these claims

      were not demonstrably unavailable at the time of Bonds’s direct appeal, they

      are not available as freestanding claims in a petition for postconviction relief.

      Saylor v. State, 55 N.E.3d 354, 359 (Ind. Ct. App. 2016), trans. denied. This is

      true even where the postconviction petitioner characterizes the freestanding

      claims as fundamental error. See Stephenson v. State, 864 N.E.2d 1022, 1029

      (Ind. 2007) (where defendant did not object at trial and issue was not raised on

      direct appeal, he is foreclosed from raising issue in postconviction proceeding as

      freestanding claim of error, whether “fundamental” or otherwise). See also

      Lindsey v. State, 888 N.E.2d 319, 325 (Ind. Ct. App. 2008) (postconviction

      petitioner may raise claim for first time in PCR petition only if claim is for

      ineffective assistance of counsel or an issue demonstrably unavailable at trial or

      Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1943 | July 19, 2017   Page 7 of 15
       on direct appeal), trans. denied. Bonds is foreclosed from raising his freestanding

       claims, even when couched in terms of fundamental error.


         Section 2 – Bonds was not denied his constitutional right to
                     effective assistance of trial counsel.
[10]   Bonds also maintains that he was denied his constitutional right to effective

       assistance of trial counsel (“Counsel”). To prevail on an ineffective assistance

       claim, Bonds must satisfy two components: he must demonstrate both deficient

       performance and prejudice resulting from it. Strickland v. Washington, 466 U.S.

       668, 687 (1984). Deficient performance is “representation [that] fell below an

       objective standard of reasonableness, [where] counsel made errors so serious

       that counsel was not functioning as ‘counsel’ guaranteed by the Sixth

       Amendment.” Passwater, 989 N.E.2d at 770. We assess counsel’s performance

       based on facts that are known at the time and not through hindsight.

       Shanabarger v. State, 846 N.E.2d 702, 709 (Ind. Ct. App. 2006), trans. denied.

       Evidence of isolated poor strategy, inexperience, or bad tactics will not support

       an ineffective assistance claim; instead, we evaluate counsel’s performance as a

       whole. Flanders v. State, 955 N.E.2d 732, 739 (Ind. Ct. App. 2011), trans. denied

       (2012). “[C]ounsel’s performance is presumed effective, and a defendant must

       offer strong and convincing evidence to overcome this presumption.” Ritchie v.

       State, 875 N.E.2d 706, 714 (Ind. 2007). “Strickland does not guarantee perfect

       representation, only a reasonably competent attorney.” Hinesley, 999 N.E.2d at

       983.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1943 | July 19, 2017   Page 8 of 15
[11]   Bonds asserts that Counsel was ineffective in failing to conduct a reasonable

       investigation, in not calling certain witnesses during trial, and in not objecting

       during closing argument. When deciding a claim of ineffective assistance of

       counsel for failure to investigate, we apply a great deal of deference to counsel’s

       judgments. Boesch v. State, 778 N.E.2d 1276, 1283 (Ind. 2002).


               [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. In other
               words, counsel has a duty to make reasonable investigations or to
               make a reasonable decision that makes particular investigations
               unnecessary.


       Strickland, 466 U.S. at 690-91.


[12]   Because success on the prejudice prong of an ineffective assistance claim

       requires a showing of a reasonable probability of a different result, establishing

       failure to investigate as a ground for ineffectiveness “requires going beyond the

       trial record to show what investigation, if undertaken, would have produced.”

       McKnight, 1 N.E.3d at 201 (citing Woods v. State, 701 N.E.2d 1208, 1214 (Ind.

       1998), cert. denied (1999)).


[13]   Here, Bonds neither called Counsel as a witness to testify at the PCR hearing

       nor introduced any evidence from Counsel by affidavit or otherwise. Thus, we

       have no indication as to the extent of Counsel’s actual investigation. When a

       PCR petitioner does not call Counsel to testify as a witness, the postconviction


       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1943 | July 19, 2017   Page 9 of 15
       court may infer that Counsel would not have corroborated the petitioner’s

       allegations. Oberst v. State, 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010), trans.

       denied (2011). Similarly, Bonds neither testified nor presented evidence outside

       the trial record to show what evidence a more thorough investigation by

       Counsel would have produced. As such, he has failed to establish that Counsel

       performed deficiently concerning the extent of his investigation.


[14]   As for Bonds’s allegation of Counsel’s deficient performance based on not

       calling certain witnesses to testify, the decision concerning “which witnesses to

       call is the epitome of a strategic decision.” Wrinkles v. State, 749 N.E.2d 1179,

       1200 (Ind. 2001) (quoting Wisehart v. State, 693 N.E.2d 23, 48 n.26 (Ind. 1998)).

       See also Brown v. State, 691 N.E.2d 438, 447 (Ind. 1998) (“A decision regarding

       what witnesses to call is a matter of trial strategy which an appellate court will

       not second-guess”). Again, the fact that Counsel did not testify at the PCR

       hearing has resulted in a total absence of evidence as to his thought process in

       selecting which witnesses to call during Bonds’s trial. Bonds has failed to

       establish that Counsel performed deficiently in his selection of witnesses.


[15]   Bonds has likewise failed to establish ineffective assistance in Counsel’s failure

       to object to certain statements made by the prosecutor during closing argument.

       In addressing this argument, we first observe that Bonds has incorrectly

       characterized the prosecutor’s statements as perjured. See Appellant’s Br. at 15

       (“purjurying [sic] closing argument”). Since the prosecutor was not under oath,

       his statements cannot amount to perjury. See Ind. Code § 35-44.1-2-1(a)(1)

       (requiring proof of a knowingly “false, material statement under oath or

       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1943 | July 19, 2017   Page 10 of 15
affirmation” to establish perjury). To establish ineffective assistance of counsel

due to the failure to object, the petitioner must prove that an objection would

have been sustained if made and that he was prejudiced by Counsel’s failure to

do so. Kubsch v. State, 934 N.E.2d 1138, 1150 (Ind. 2010). Here, Bonds

challenges Counsel’s failure to object to the prosecutor’s closing argument

comment that DNA testing indicated the presence of amylase, a substance

found in saliva, in the crotch of the victim’s underwear and that the testing

showed amylase consistent with Bonds’s DNA profile. However, Bonds did

not offer the record from his original trial into evidence at his PCR hearing and,

although it appears that the postconviction court took judicial notice of it sua

sponte, the record is not included in the materials submitted in this appeal.2

“The appellant bears the burden to present a record that is complete with

respect to the issues raised on appeal, and this burden includes a duty to ensure

that th[is] court has a transcript of the appropriate trial proceedings.” Perez-

Grahovac v. State, 894 N.E.2d 578, 585 (Ind. Ct. App. 2008), trans. denied (2009).

Bonds did not meet his burden of ensuring that we received the transcript from

his trial. With no transcript and no witness testimony, we have no means of

reviewing whether an objection, if made, would have been sustained. See

Mitchell v. State, 946 N.E.2d 640, 644-45 (Ind. Ct. App. 2011) (petitioner who




2
  In Mitchell v. State, we emphasized the importance of the petitioner offering his original trial record into
evidence during the PCR hearing, and concluded that where the petitioner fails to offer it into evidence, the
2010 amendment to Indiana Evidence Rule 201(b)(5) allows the postconviction court, on petitioner’s motion
or sua sponte, to judicially notice the transcript of evidence from the petitioner’s underlying criminal
proceedings to evaluate ineffective assistance claims. 946 N.E.2d 640, 644-45 (Ind. Ct. App. 2011), trans.
denied.

Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1943 | July 19, 2017             Page 11 of 15
       did not offer his trial record into evidence and neither asked the postconviction

       court to take judicial notice of trial record nor called any witnesses at his PCR

       hearing failed to meet his burden of proof on his ineffective assistance claims),

       trans. denied.


[16]   Bonds bore the burden of proving his ineffective assistance claims. Yet he did

       not call Counsel or any other witnesses to testify during the PCR hearing. He

       himself did not testify, and he did not introduce his trial record or submit it in

       this appeal. His arguments of ineffective assistance of Counsel are unsupported

       by evidence. Bonds has failed to overcome the presumption that Counsel

       performed effectively.


             Section 3 – The trial court did not clearly err in denying
                  Bonds’s petition for additional DNA testing.
[17]   Finally, Bonds contends that the trial court clearly erred in denying his petition

       for additional DNA testing. Indiana Post-Conviction Rule 1(d) states,

               A petition filed by a person who has been convicted or sentenced
               for a crime by a court of this state that seeks to require forensic
               DNA testing or analysis of any evidence, whether denominated
               as a petition filed pursuant to Ind. Code § 35-38-7-5 or not, is
               considered a Petition for Post-Conviction Relief.


       Because a petitioner’s request for DNA testing is considered a petition for

       postconviction relief, he is subject to the same burden of proof as other PCR

       petitioners. See Ind. Post-Conviction Rule 1(5) (petitioner must establish




       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1943 | July 19, 2017   Page 12 of 15
       grounds for relief by a preponderance of evidence). Likewise, he is subject to

       the same standard of appellate review. See Massey, 955 N.E.2d at 253.


[18]   Indiana Code Section 35-38-7-5 states in pertinent part that “[a] person who

       was convicted of and sentenced for an offense may file a written petition with

       the court that sentenced the petitioner for the offense to require the forensic

       DNA testing and analysis of any evidence” in the court’s or State’s possession

       or in the Indiana DNA database, that is related to the petitioner’s

       prosecution/investigation resulting in his conviction, and that may contain

       biological evidence. Indiana Code Section 35-38-7-8 reads as follows with

       respect to a PCR petitioner’s burden of proof when requesting DNA testing:

               After complying with section 7 of this chapter, the court shall
               determine whether the petitioner has presented prima facie proof
               of the following:

               (1) That the evidence sought to be tested is material to identifying
               the petitioner as:

               (A) the perpetrator of; or

               (B) an accomplice to;

               the offense that resulted in the petitioner’s conviction.

               (2) That a sample of the evidence that the petitioner seeks to
               subject to DNA testing and analysis is in the possession or
               control of either:

               (A) the state or a court; or

               (B) another person, and, if this clause applies, that a sufficient
       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1943 | July 19, 2017   Page 13 of 15
               chain of custody for the evidence exists to suggest that the
               evidence has not been substituted, tampered with, replaced,
               contaminated, or degraded in any material aspect.

               (3) The evidence sought to be tested:

               (A) was not previously tested; or

               (B) was tested, but the requested DNA testing and analysis will:

               (i) provide results that are reasonably more discriminating and
               probative of the identity of the perpetrator or accomplice; or

               (ii) have a reasonable probability of contradicting prior test
               results.

               (4) A reasonable probability exists that the petitioner would not
               have:

               (A) been:

               (i) prosecuted for; or

               (ii) convicted of;

               the offense; or

               (B) received as severe a sentence for the offense;

               if exculpatory results had been obtained through the requested
               DNA testing and analysis.


[19]   As best we can discern, Bonds seeks additional DNA testing to settle conflicting

       testimony concerning the previous DNA test results. See Appellant’s Br. at 26-

       27 (“DNA re-testing … will contradict [the State’s DNA expert’s] testimony

       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1943 | July 19, 2017   Page 14 of 15
       about the results and show that [the witness] purjured [sic] her testimony … to

       help [the] state to get a conviction.”). In other words, he seeks a tiebreaking

       result as between his witness and the State’s witness. However, he failed to

       introduce probative evidence to support a finding that additional testing will

       “provide results that are reasonably more discriminating and probative of the

       identity of the perpetrator” or “have a reasonable probability of contradicting

       prior test results.” Ind. Code § 35-38-7-8(3)(B)(i), -(ii). He also failed to present

       evidence to show a reasonable probability that he would not have been

       convicted had the “exculpatory results had been obtained through the requested

       DNA testing and analysis.” Ind. Code § 35-38-7-8(4)(A)(ii).


[20]   In short, Bonds’s arguments lack evidentiary support and amount to requests to

       reweigh evidence and reassess witness credibility, which we may not and will

       not do. McKnight, 1 N.E.3d at 199. The postconviction court did not clearly

       err in denying his request for additional DNA testing. Accordingly, we affirm.


[21]   Affirmed.


       Baker, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1943 | July 19, 2017   Page 15 of 15
