Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
                                                        Dec 16 2014, 10:46 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.


APPELLANT PRO SE:                              ATTORNEYS FOR APPELLEE:

DONIELLE SIMS                                  GREGORY F. ZOELLER
Michigan City, Indiana                         Attorney General of Indiana

                                               KATHERINE MODESITT COOPER
                                               Deputy Attorney General
                                               Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DONIELLE SIMS,                                 )
                                               )
       Appellant-Defendant,                    )
                                               )
              vs.                              )    No. 45A03-1404-PC-120
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Plaintiff.                     )


                    APPEAL FROM THE LAKE SUPERIOR COURT
                        The Honorable Clarence Murray, Judge
                            Cause No. 45G02-1111-PC-8



                                    December 16, 2014


             MEMORANDUM DECISION - NOT FOR PUBLICATION


ROBB, Judge
                                Case Summary and Issue

      Donielle Sims, pro se, appeals the post-conviction court’s denial of his petition for

post-conviction relief, raising one issue for our review: whether Sims was denied the

right to effective assistance of trial counsel.   Concluding the post-conviction court

properly denied Sims’s petition, we affirm.

                              Facts and Procedural History

      The facts relevant to Sims’s underlying convictions were recounted by this court

in a memorandum decision on Sims’s direct appeal:

              The evidence most favorable to the conviction is that on December
      17, 2008, as Tamicka Smith returned to her apartment in Gary, she was
      approached by Sims, who was holding a gun and told her to hurry up and
      open her door. When Smith was unable to open her door quickly, Sims
      threatened to shoot her and punched her in the temple. After Smith opened
      the door, Sims pushed her down onto a couch and began asking her where
      her gun was. Sims apparently knew that Smith was employed as a security
      guard, and she was carrying a handgun in a holster on her right hip. She
      withdrew the gun from her holster as if she was going to give it to Sims, but
      she shot him instead. Smith and Sims then exchanged several shots, each
      hitting the other. Sims eventually fled from the apartment, screaming.
              Smith was transported to a hospital. Before undergoing surgery, she
      told police that she knew and had recognized her attacker from the way he
      talked and that his name was Donny, but she could not remember his last
      name. Smith later positively identified Sims as her attacker. Smith’s
      surgery required the removal of part of her intestine, and she spent three
      weeks recovering from her wounds.
              Sims, meanwhile, sought treatment for his gunshot wounds at a
      different hospital. When police asked him how he had sustained his
      wounds, Sims claimed he had been shot by two Hispanic men. Police
      managed to recover DNA from blood stains and a cap left in Smith’s
      apartment, and the DNA matched Sims’s. In March 2009, Sims wrote
      Smith a letter in which he asked her to forgive him for shooting her.
              The State charged Sims with Class A felony attempted robbery,
      Class A felony burglary, Class B felony criminal confinement, Class B
      felony aggravated battery, and Class C felony battery. A jury trial was
      conducted on January 11-13, 2010. Sims testified that he had agreed to be

                                              2
      Smith’s boyfriend in exchange for $500, but he decided he did not want to
      be her boyfriend, which led to a confrontation in Smith’s apartment. Sims
      essentially claimed he shot Smith in self-defense after she shot him first.
      Sims was found guilty of all charges except the criminal confinement
      charge. The trial court subsequently entered judgment of conviction only
      for Class A felony attempted robbery and sentenced Sims to an executed
      term of forty-five years.

Sims v. State, 937 N.E.2d 436 at *1, No. 45A03-1003-CR-140 (Ind. Ct. App. Nov. 12,

2010) (footnote omitted). Sims appealed and raised two issues before this court: (1)

whether the prosecutor committed misconduct during closing argument by focusing on

Sims’s prior felony conviction, and (2) whether the trial court abused its discretion in

sentencing Sims. Id. Rejecting those claims, this court affirmed Sims’s convictions and

sentence. Id.

      In November 2011, Sims filed his pro se petition for post-conviction relief,

alleging ineffective assistance of trial counsel. An evidentiary hearing was held on

August 23, 2013. On March 20, 2014, the post-conviction court denied Sims’s petition.

This appeal followed.

                               Discussion and Decision

                                I. Standard of Review

      A petitioner seeking post-conviction relief bears the burden of establishing

grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).

“A petitioner who is denied post-conviction relief appeals from a negative judgment,

which may be reversed only if the evidence as a whole leads unerringly and unmistakably

to a decision opposite that reached by the post-conviction court.” Collins v. State, 14



                                           3
N.E.3d 80, 83 (Ind. Ct. App. 2014) (citation and quotation marks omitted). We defer to

the post-conviction court’s factual findings, unless they are clearly erroneous. Id.

       The Sixth Amendment’s “right to counsel is the right to the effective assistance of

counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v.

Richardson, 397 U.S. 759, 771 n.14 (1970)).          To establish a claim of ineffective

assistance of counsel, a convicted defendant must show (1) counsel’s performance was

deficient such that it fell below an objective standard of reasonableness based on

prevailing professional norms and (2) the defendant was prejudiced by counsel’s

deficient performance. Id. at 687. When considering whether counsel’s performance

was deficient, there exists a “strong presumption” that counsel’s performance was

reasonable. Id. at 689. A defendant is prejudiced if “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id.

       The two prongs of the Strickland test—performance and prejudice—are

independent inquiries, and both prongs need not be addressed if the defendant makes an

insufficient showing as to one of them. Id. at 697. For instance, “[i]f it is easier to

dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that

course should be followed” without consideration of whether counsel’s performance was

deficient. Id.

                              II. Assistance of Trial Counsel

                                   A. Failure to Investigate

                                             4
         First, Sims argues that his trial counsel provided ineffective assistance by failing

to conduct an adequate investigation of his case and to present additional witnesses at

trial.1 “[C]ounsel has a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary. In any ineffectiveness case, a

particular decision not to investigate must be directly assessed for reasonableness in all

the circumstances, applying a heavy measure of deference to counsel’s judgments.” Id. at

691. The Supreme Court has noted that “[t]he reasonableness of counsel’s actions may

be determined or substantially influenced by the defendant’s own statements or actions . .

. [and] inquiry into counsel’s conversations with the defendant may be critical to a proper

assessment of counsel’s investigation decisions . . . .” Id.

         In its findings of fact, the post-conviction court found that “Sims did not advise

counsel that there were any other witnesses to interview. Hence, counsel conducted no

other interviews.” Appellant’s Appendix at 25. Furthermore, as discussed in more detail

below, Sims claimed to have shot the victim in self-defense and that no one else was

present at the time of the incident. We cannot say it was unreasonable for trial counsel to

neglect to track down and present witnesses who did not exist.




         1
             The State contends that Sims forfeited any argument that trial counsel was ineffective for failing to
conduct adequate pretrial investigation, because Sims did not plead the specifics of this argument in his petition for
post-conviction relief. The State cites Badelle v. State, which states the general rule that a failure to raise an alleged
error in a petition for post-conviction relief forfeits that issue for appeal. 754 N.E.2d 510, 528 (Ind. Ct. App. 2001),
trans. denied. However, the court in Badelle chose to address the petitioner’s argument despite the lack of
specificity in the post-conviction relief petition, recognizing that testimony relevant to the argument was presented
at the evidentiary hearing without objection and that this court prefers to address arguments on the merits where
possible. Id. Notwithstanding the State’s allegation of forfeiture in this case, we address Sims’s arguments
regarding pretrial investigation due to relevant evidence being presented at the evidentiary hearing, a relevant factual
finding made by the post-conviction court, the State’s apparent ability to address the merits of Sims’s argument in its
appellate brief, see Brief of Appellee at 11-13, and our desire to decide issues on the merits when possible.

                                                            5
        Sims also argues that his counsel failed to discover certain facts regarding Sims’s

relationship with the victim and money the victim had loaned to Sims. He claims that a

jury armed with these facts would surely find the victim’s version of events “ridiculous.”

Appellant’s Brief at 7. What Sims does not acknowledge is that the jury was presented

with these facts through Sims’s testimony, and the jury nonetheless credited the victim’s

version of events. Furthermore, even if it could be said that trial counsel was deficient

for not presenting additional witnesses to corroborate the existence of a prior relationship

between Sims and the victim, there is no reasonable probability that such testimony

would bolster Sims’s self-defense claim and alter the result of his trial.

            B. Failure to Prepare Sims for Trial and Present Self-Defense Theory

        Next, Sims asserts that trial counsel failed to adequately prepare Sims’s trial

testimony. In a similar vein, he argues that counsel failed to develop Sims’s testimony

and present evidence of self-defense at trial.

        Sims alleges that counsel did not advise him that evidence of his past convictions

could be presented by the State if Sims chose to testify. However, the post-conviction

court’s order pointed out that Sims neither questioned trial counsel on this point nor

testified himself at the evidentiary hearing. As noted above, it is the petitioner’s burden

to present evidence substantiating his claim of ineffective assistance of counsel. See Ind.

Post-Conviction Rule 1(5). Sims has failed in this respect by neglecting to present any

evidence supporting his allegation that counsel did not adequately prepare him to testify

at trial.



                                                 6
       Sims also argues that trial counsel was deficient for failing to present evidence in

support of Sims’s self-defense claim. However, as noted above, the only witnesses to the

incident were Sims and the victim, and Sims did testify to a version of events in which

Smith shot first and Sims merely acted in self-defense. Moreover, as the State points out,

trial counsel argued in his closing argument that Sims acted in self-defense, and the trial

court provided the jury with a self-defense instruction. Sims has offered no evidence in

these post-conviction proceedings that would have bolstered his self-defense claim or

changed the outcome of his trial. Under these circumstances, we decline to find that trial

counsel provided ineffective assistance of counsel.

                               C. Failure to Suppress Evidence

       Sims contends his trial counsel was deficient for failing to have certain evidence

excluded from trial. Specifically, Sims argues that a letter he wrote to the victim after his

arrest and statements made to police at the hospital should have been excluded. To

prevail on a claim of ineffective assistance of counsel based on a failure to file a motion

or lodge an objection on a defendant’s behalf, the defendant must demonstrate that such

action would have been successful. See Moore v. State, 872 N.E.2d 617, 621 (Ind. Ct.

App. 2007), trans. denied.

                                    1. Sims’s Letter to Victim

       After his arrest, Sims wrote a letter to his victim apologizing for shooting her and

confessing that “[t]imes where [sic] hard for me and I knew you had a gun, which is no

excuse, but that was my motive.” State’s Exhibit 88. Sims argues his trial counsel was

ineffective for failing to have this letter excluded from evidence. However, Sims does

                                             7
not present us with any legal basis for excluding the letter. In fact, it seems quite clear

that the letter was relevant and admissible as “not hearsay” under Indiana Evidence Rule

801(d)(2)(A) (statement made by opposing party).                         Therefore, trial counsel did not

perform deficiently by neglecting to object to the letter.

                                           2. Sims’s Statements to Police

         Sims also argues his trial counsel should have suppressed statements that Sims

made to a police officer without the provision of a Miranda warning. In the landmark

Miranda v. Arizona decision, the United States Supreme Court held “the prosecution may

not use statements, whether exculpatory or inculpatory, stemming from custodial

interrogation of the defendant unless it demonstrates the use of procedural safeguards

effective to secure the privilege against self-incrimination.” 384 U.S. 436, 444 (1966).

Those procedural safeguards have come to be known as “Miranda warnings.”2 See, e.g.,

Salinas v. Texas, 133 S.Ct. 2174, 2177 (2013); Kubsch v. State, 784 N.E.2d 905, 914

(Ind. 2003). Miranda warnings are required “where there has been such a restriction on a

person’s freedom as to render him ‘in custody.’” Stansbury v. California, 511 U.S. 318,

322 (1994) (citation omitted). Statements elicited in noncompliance with Miranda are

subject to suppression. Id.

         “In determining whether an individual was in custody, a court must examine all of

the circumstances surrounding the interrogation, but ‘the ultimate inquiry is simply

whether there [was] a ‘formal arrest or restraint on freedom of movement’ of the degree


         2
            Miranda warnings given to a person subject to a custodial interrogation include, inter alia, an advisement
“that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that
he has a right to the presence of an attorney, either retained or appointed.” Miranda, 384 U.S. at 444.

                                                          8
associated with a formal arrest.’” Id. (quoting California v. Beheler, 463 U.S. 1121, 1125

(1983) (per curiam)) (brackets in original). In this case, Sims made statements to an

officer at the hospital where Sims had gone after being shot. According to the officer’s

trial testimony, he was made aware that a gunshot victim—Sims—was at the hospital,

and he found Sims at the hospital for the purpose of obtaining his identity and learning

how Sims sustained his injuries. The officer approached Sims, who was lying on a

gurney, and asked for his name and an explanation for what happened. At that point,

Sims identified himself and told the officer that he had been shot by two Hispanic men

who attempted to rob him. The post-conviction court concluded that these facts did not

amount to a custodial interrogation, and we agree. Because the circumstances of Sims’s

statement to police do not constitute a custodial interrogation, a motion to suppress

Sims’s statements would have been unsuccessful.          Therefore, trial counsel did not

perform deficiently by failing to file a motion to suppress.

                   D. Failure to Object to Prosecutor’s Closing Argument

       Finally, Sims argues he received ineffective assistance because his counsel failed

to object to statements made by the prosecutor in closing argument when the prosecutor

referred to Sims’s criminal history. This claim of prosecutorial misconduct is the same

argument made by Sims on direct appeal. See Sims, 937 N.E.2d 436 at *1-3. “If an issue

was raised on direct appeal, but decided adversely to the petitioner, it is res judicata.”

Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006).              “[W]here an issue, although

differently designated, was previously considered and determined upon a criminal

defendant’s direct appeal, the State may defend against defendant’s post-conviction relief

                                             9
petition on grounds of prior adjudication or res judicata.”           Id. (citation omitted)

(emphasis in original). Because the issue of prosecutorial misconduct was addressed on

direct appeal, it is not available to Sims in his post-conviction proceedings.

                                        Conclusion

       Concluding Sims did not receive ineffective assistance of counsel and that the

post-conviction court’s denial of Sims’s petition was not erroneous, we affirm.

       Affirmed.

BAILEY, J., and BROWN, J., concur.




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