 Pursuant to Ind. Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any
                                                                           Jul 15 2014, 10:21 am
 court except for the purpose of establishing
 the defense of res judicata, collateral
 estoppel, or the law of the case.



APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE:

CHRISTOPHER ANDERSON                                GREGORY F. ZOELLER
Pendleton, Indiana                                  Attorney General of Indiana

                                                    KARL M. SCHARNBERG
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

CHRISTOPHER ANDERSON,                               )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )      No. 49A04-1307-PC-340
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Sheila A. Carlisle, Judge
                     The Honorable Stanley E. Kroh, Master Commissioner
                             Cause No. 49G03-0005-PC-86704



                                           July 15, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Christopher Anderson appeals the denial of his petition for post-conviction relief,

contending that the post-conviction court erred when it found appellate counsel was not

ineffective for failing to raise the issue that trial counsel was ineffective for: (1) failing to

tender lesser-included offense instructions; and (2) failing to object to the serious violent

felon (“SVF”) in possession of a firearm count being tried together with the habitual

offender enhancement.

       We affirm.

                         FACTS AND PROCEDURAL HISTORY

       The facts supporting Anderson’s convictions as set forth by this court on direct

appeal are as follows:

       [I]n the early morning hours of May 19, 2000, Anderson’s girlfriend, Doria
       White, and Andre Clarke arrived at White’s apartment and found Anderson
       and Andre’s cousin, Robert Clarke, in the kitchen. Anderson began arguing
       with Andre, accusing him of having “somethin’ goin’ on” with White.
       Anderson pulled out a gun and threatened to rob Andre. White ran out of the
       apartment and went to a neighbor’s house. When she called her apartment
       later to see what was happening, Anderson answered the phone and assured
       her that everything was okay.

       As White was returning to her apartment, however, Andre and Anderson
       began arguing again. Anderson then shot Andre three times, killing him. He
       next pointed the gun at Robert’s head and threatened to kill him if he said
       anything. Anderson ran out the front door. Robert and White, who heard the
       gunshots, called the police. Officer Brandon Mills arrived at the scene
       approximately thirty seconds after receiving the dispatch and found Robert
       kneeling next to Andre. No weapon was found on Robert or in the residence.

       On May 26, 2000, the State charged Anderson with murder, possession of a
       firearm by a serious violent felon, carrying a handgun without a license, and
       intimidation. He was also alleged to be an habitual offender. . . .




                                               2
       Anderson’s whereabouts were unknown until June 28, 2000, when he was
       arrested in Birmingham, Alabama. He was returned to Indiana, where a jury
       trial was conducted on May 21 and 22, 2001.

Anderson v. State, 774 N.E.2d 906, 908-09 (Ind. Ct. App. 2002).

       The trial was conducted in two phases. During the first phase, the jury heard

evidence regarding the charges of murder, carrying a handgun without a license, and

intimidation. Conflicting testimony was given regarding Anderson’s demeanor that night.

Anderson’s girlfriend, White, testified that Anderson and Andre were playing around and,

while there was a gun, it was not pointed at anyone. Tr. at 38. In contrast, Andre’s cousin,

Robert, testified that while he, Andre, and Anderson were in White’s kitchen, Anderson

and Andre began arguing after Anderson started to rob Andre, who responded, “I ain’t

givin’ you nothing.” Id. at 68.

       The defense theory at trial was that Robert, not Anderson, was the shooter. In

closing, the State argued that the only witness to the shooting was Robert, a man who had

lied before and could have been lying when he testified against Anderson at trial. In closing

the State emphasized that Robert was a man who initially said he was not present when the

shooting occurred, but later implicated Anderson as the shooter; a man who said he saw

Anderson kick Andre in the stomach two or three times, yet the autopsy did not support

that testimony; and, finally, a man who was at the scene, and, yet, police failed to pursue

him as a suspect. Id. at 170-71.

       During deliberations, a juror informed the trial court that she had recognized
       one of the courtroom spectators who she believed was sitting with
       Anderson’s supporters in the courtroom. The trial court was prepared to
       remove this juror, but Anderson objected to this proposed measure and

                                             3
       moved for a mistrial instead. The trial court denied the motion. Anderson
       was found guilty of all charges and was found to be an habitual offender.
       The trial court imposed a sentence of sixty years for the murder conviction,
       enhanced by thirty years for the habitual offender finding, ten years for the
       serious violent felon firearm conviction, and four years for the intimidation
       conviction, all to be served consecutively for a total executed sentence of 104
       years. No sentence was imposed for the handgun conviction.

Anderson, 774 N.E.2d at 909.

       The jury returned the convictions at two different times. First, the jury found

Anderson guilty of the murder, intimidation, and possession of a handgun without a license

charges. Only then did the jury hear evidence, in phase two of the trial, on the SVF in

possession of a firearm count and the habitual offender allegation. The SVF firearm charge

alleged a 1987 robbery conviction as the relevant predicate violent felony; the habitual

offender charge alleged as its predicate offenses the same 1987 robbery conviction and a

1994 conviction for Class D felony carrying a handgun without a license. Id.

       Anderson’s appellate counsel raised the following five issues on direct appeal: (1)

whether the trial court erred in permitting a witness who sat through part of voir dire to

testify when there was a separation of witnesses order; (2) whether the trial court erred in

allowing the State to introduce evidence that Anderson was found by law enforcement

officials in Alabama after the murder; (3) whether the trial court should have ordered a

mistrial when one juror indicated during deliberations that she recognized one of the

courtroom spectators; (4) whether there was sufficient evidence to support the murder and

intimidation convictions; and (5) whether the enhancement of his murder sentence because

of his habitual offender status was improper because one of the prior convictions used to


                                             4
establish that status also established that Anderson was a serious violent felon. Anderson,

774 N.E.2d at 908. We affirmed Anderson’s conviction in a nine-page published opinion,

dated July 10, 2002.

        On October 4, 2011, Anderson, acting pro se, filed his Verified Petition for Post-

Conviction Relief (“PCR”) raising one issue—whether his appellate counsel was

ineffective for failing to raise ineffectiveness of trial counsel on direct appeal.1 Appellant’s

PCR App. at 17-27.2 Jeffrey Neel was Anderson’s attorney at trial, and attorney Kenneth

Roberts represented him on appeal. In his PCR Petition, Anderson claimed that Neel was

ineffective at trial for not requesting jury instructions for the lesser-included offenses of

voluntary manslaughter and reckless homicide and for not objecting to the SVF count being

tried together with the habitual offender allegation. PCR App. at 20-21. Anderson alleged

that Roberts was ineffective for failing to raise these claims of ineffectiveness of trial

counsel on direct appeal. Id. at 21-22.

        At the March 2012 PCR hearing, Neel testified that he did not request jury

instructions for any lesser included offenses because Anderson insisted he was innocent

and directed Neel not to request lesser included instructions. PCR Tr. at 6. Neel did not

have any recollection of whether the habitual offender allegation and the SVF count were

tried together and, therefore, could offer no explanation for why he did not object to that



        1
         Anderson, by counsel, filed two other petitions for post-conviction relief prior to the instant filing,
one in 2002 and the other in 2003. It is not clear what became of the first petition, but the latter one was
dismissed on Anderson’s motion in 2004. Neither petition is pertinent to the appeal before us.
        2
            Hereinafter, we will refer to Appellant’s PCR App. as PCR App.

                                                       5
procedure. Id. at 9. Roberts, testified that he had no recollection of Anderson’s case and

that he no longer had a file for Anderson. Id. at 15.

       The State and Anderson, acting pro se, filed their respective proposed findings of

fact and conclusions thereon. On June 6, 2013, the trial court denied Anderson’s PCR

Petition. Id. at 3-16. Anderson now appeals.

                            DISCUSSION AND DECISION

       Post-conviction relief does not afford a petitioner with a super-appeal. Garrett v.

State, 992 N.E.2d 710, 718 (Ind. 2013). Rather, subsequent collateral challenges to

convictions must be based on grounds enumerated in the post-conviction rules. Timberlake

v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839 (2002). If an issue

was known and available, but not raised on direct appeal, it is waived. Garrett, 992 N.E.2d

at 718. Further, in a PCR proceeding, the petitioner bears the burden of establishing his

claim by a preponderance of the evidence. Id. When appealing the denial of a PCR

petition, the petitioner stands in the position of one appealing from a negative judgment.

Id. Therefore, in order to prevail upon his 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.

       The standard of review for ineffective assistance of appellate counsel is the same as

that for trial counsel. Bieghler v. State, 690 N.E.2d 188, 192 (Ind. 1997), cert. denied, 525

U.S. 1021 (1998). To establish a post-conviction claim alleging violation of the Sixth

Amendment right to effective assistance of counsel, a defendant must establish the two


                                             6
components set forth in Strickland v. Washington, 466 U.S. 668 (1984). Garrett, 992

N.E.2d at 718. First, the defendant must show appellate counsel was deficient in his or her

performance and, second, that the deficiency resulted in prejudice. Id. at 719. “To satisfy

the first prong, the defendant must show deficient performance: representation that fell

below an objective standard of reasonableness, committing errors so serious that the

defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id. “To satisfy

the second prong, the defendant must show prejudice: a reasonable probability (i.e., a

probability sufficient to undermine confidence in the outcome) that, but for counsel’s

errors, the result of the proceeding would have been different.” Id.

       Ineffective assistance claims regarding appellate counsel, “generally fall into three

basic categories: (1) denial of access to an appeal, (2) failure to raise issues that should

have been raised, i.e., waiver of issues; and (3) failure to present issues well.” Id. at 724

(internal quotation marks omitted). Here, Anderson’s claim is based upon the waiver of

issues category.

       Recently, our Supreme Court noted:

       When evaluating a claimed deficiency in appellate representation due to an
       omission of an issue, a post-conviction court is properly deferential to
       appellate counsel’s choice of issues for appeal unless such a decision was
       unquestionably unreasonable. Such deference is appropriate because the
       selection of issues for direct appeal is one of the most important strategic
       decisions of appellate counsel. Appellate counsel’s performance, as to the
       selection and presentation of issues, will thus be presumed adequate unless
       found unquestionably unreasonable considering the information available in
       the trial record or otherwise known to the appellate counsel. In crafting an
       appeal, counsel must choose those issues which appear from the face of the
       record to be most availing. Experienced advocates since time beyond
       memory have emphasized the importance of winnowing out weaker

                                             7
       arguments on appeal and focusing on one central issue if possible, or at most
       on a few key issues. Thus, to prevail in such claim in post-conviction
       proceedings, it is not enough to show that appellate counsel did not raise
       some potential issue; instead, the defendant must show that the issue was one
       which a reasonable attorney would have thought availing.

Hampton v. State, 961 N.E.2d 480, 491-92 (Ind. 2012) (citations omitted) (internal

quotation marks omitted). As the post-conviction court correctly said, “Allegations of

ineffective assistance of appellate counsel regarding the selection and presentation of issues

must overcome the strongest presumption of adequate assistance.” PCR App. at 9 (citing

Law v. State, 797 N.E.2d 1157, 1162 (Ind. Ct. App. 2003)).

       When appellate counsel waives issues on appeal, we apply the following test to

evaluate the performance prong: (1) whether the unraised issues are significant and

obvious from the face of the record and (2) whether the unraised issues are “clearly

stronger” than the raised issues. Id. (citing Timberlake, 753 N.E.2d at 606). If the analysis

under this test demonstrates deficient performance, then we evaluate the prejudice prong

which requires an examination of whether “the issues which . . . appellate counsel failed to

raise would have been clearly more likely to result in reversal or an order for a new trial.”

Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). Ineffective assistance is very rarely

found in cases where a defendant asserts that appellate counsel failed to raise an issue on

direct appeal because the decision of what issues to raise is one of the most important

strategic decisions to be made by appellate counsel. Id. at 1196.

       When faced with the question of whether appellate counsel was ineffective for

failing to raise the issue of ineffective assistance of trial counsel, the post-conviction court


                                               8
held that appellate counsel was not ineffective. We agree. At the time of the post-

conviction hearing, Roberts had been a practicing attorney for thirty-eight years, had tried

about 130 cases and had “[d]one over 300 appeals in the federal and state courts.” PCR

Tr. at 20. To pursue Anderson’s appeal, Roberts had to make a strategic decision regarding

what issues to raise. Accordingly, he winnowed out weaker arguments and focused on five

key issues on appeal. Our court’s consideration of those issues resulted in a nine-page,

published opinion affirming Anderson’s convictions.

       As the post-conviction court noted, Roberts’s decision not to raise the ineffective

assistance claims on direct appeal “is consistent with the directive of the Indiana Supreme

Court that ‘a post-conviction hearing is normally the preferred forum to adjudicate an

ineffectiveness claim.’” PCR App. at 10 (quoting Woods v. State, 701 N.E.2d 1208, 1219

(Ind. 1998), cert. denied, 528 U.S. 861 (1999)). In Conner v. State, 711 N.E.2d 1238, 1252

(Ind. 1999), cert. denied, 531 U.S. 829 (2000), a case decided prior to Anderson’s direct

appeal, our Supreme Court said:

       This Court has recently clarified the law regarding claims of ineffective
       assistance of counsel. In Woods, we held that a Sixth Amendment claim of
       ineffective assistance of trial counsel, if not raised on direct appeal, may be
       presented in post-conviction proceedings. However, if ineffective assistance
       of trial counsel is raised on direct appeal . . ., the issue will be foreclosed
       from collateral review. Thus, because appellate counsel is not required to
       raise this claim on direct appeal, appellate counsel’s failure to do so was not
       deficient representation.

Conner, 711 N.E.2d at 1252 (citations omitted) (internal quotation marks omitted) (citing

Woods, 701 N.E.2d at 1211-20). Roberts can no longer remember having represented

Anderson on appeal. PCR Tr. at 15, 19. Even so, at the PCR hearing, Roberts testified

                                             9
that he was aware of the holding in Woods and that he would have taken that case into

account in deciding whether or not to raise an ineffectiveness claim on direct appeal. PCR

Tr. at 22-23. Failure to raise the issue that trial counsel was ineffective would not have

waived that issue for a PCR proceeding. Conner, 711 N.E.2d at 1252. We agree with the

post-conviction court’s conclusion that Roberts’s performance was not deficient for

following the guidance set forth by our Supreme Court in Woods. PCR App. at 10 (citing

Conner, 711 N.E.2d at 1252).

       Although Anderson raises only a claim of ineffectiveness of appellate counsel, his

challenge involves a claim that appellate counsel should have raised ineffectiveness of his

trial counsel on direct appeal. Like the post-conviction court, for the sake of thoroughness,

we also address Anderson’s claim that trial counsel was ineffective for failing to tender

lesser included instructions and failing to object to the SVF in possession of a weapon

charge being tried together with the habitual offender allegation.

       Our Supreme Court has said:

       A reviewing court will not second-guess the propriety of trial counsel’s
       tactics. . . . [T]rial strategy is not subject to attack through an ineffective
       assistance of counsel claim, unless the strategy is so deficient or
       unreasonable as to fall outside of the objective standard of reasonableness.
       This is so even when such choices may be subject to criticism or the choice
       ultimately prove detrimental to the defendant.

Davidson v. State, 763 N.E.2d 441, 446 (Ind. 2002) (citations omitted) (internal quotation

marks omitted), cert. denied, 537 U.S. 1122 (2003). Neel’s theory in defending Anderson

against the murder charge was that the State had charged the wrong man—Anderson did

not shoot Andre, instead, Robert was the one who committed the murder. This was

                                             10
consistent with Neel’s post-conviction testimony that Anderson maintained that he was

innocent and thus did not want to include instructions for lesser included offenses. PCR

Tr. at 11-12. Neel testified that it was his standard procedure to discuss issues with his

clients and for them to make decisions together. Id. at 12.

       Regarding giving the lesser-included instructions, Neel testified that he discussed

that option with Anderson and, thereafter, decided not to give the lesser-included

instructions. Id. Neel acknowledged that, where a client maintains his innocence, there is

a risk of losing credibility with the jury in arguing that the State charged the wrong man

but then also having a theory that allows the jury to consider that Anderson committed a

lesser-included offense. Id. As the post-conviction court recognized, regardless of whether

Anderson would even have been entitled to lesser included instructions, “it is well

established that counsel may opt to pursue an ‘all or nothing strategy.’” PCR App. at 11

(quoting Hogan v. State, 966 N.E.2d 738, 749 (Ind. Ct. App. 2012), trans. denied); see

Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998) (trial counsel not deficient for pursuing

all or nothing strategy); Metcalf v. State, 451 N.E.2d 321, 325 (Ind. 1983) (though tactic

did not work, trial counsel not ineffective for deciding, as matter of trial strategy, to take

all-or-nothing approach “so as not to give the jury any alternative to conviction as charged

or acquittal”). The post-conviction court maintained, and we agree, that the strategy of not

tendering jury instructions regarding lesser-included offenses did not constitute ineffective

assistance of trial counsel where, as here, it fell within a reasonable trial strategy.

       Anderson also contends that Neel was deficient for failing to request that his SVF


                                               11
in possession of a firearm charge be separately tried from the hearing on his habitual

offender allegation. At trial, and in response to Anderson’s objections, the proceedings

were bifurcated so that the murder, intimidation, and carrying a handgun without a license

charges were tried separately from the SVF and habitual offender charges, the latter two of

which could only be proven by the introduction of prior felonies.

       “One of the purposes of bifurcation is to keep prior convictions away from the jury

in their initial determination of guilt for the substantive crime charged.” Russell v. State,

997 N.E.2d 351, 354 (Ind. 2013) (citing Hines v. State, 794 N.E.2d 469, 472 (Ind. Ct. App.

2003), adopted and incorporated by Hines v. State, 801 N.E.2d 634 (Ind. 2004)). “[T]he

primary concern with SVF trials is the labeling of a defendant as a “serious violent felon”

and the introduction of evidence of a defendant’s criminal history in order to prove SVF

status.” Id. (internal quotation marks omitted).

       “A serious violent felon who knowingly or intentionally possesses a firearm

commits unlawful possession of a firearm by a serious violent felon, a Class B felony.”

Ind. Code § 35-47-4-5. A person is deemed a “serious violent felon” if he or she has

previously been convicted of one of a list of crimes set forth in Indiana Code section 35-

47-4-5(b). Robbery is included in that list. Ind. Code § 35-47-4-5(b)(12). “A person

convicted of murder . . . is a habitual offender if the state proves beyond a reasonable doubt

that: (1) the person has been convicted of two (2) prior unrelated felonies; and (2) at least

one (1) of the prior unrelated felonies is not . . . a Class D felony.” Ind. Code § 35-50-2-

8(b). For each of these offenses, “the rationale for inadmissibility of prior convictions


                                             12
breaks down when the evidence of the prior conviction not only has the ‘tendency’ to

establish guilt or innocence but also is essential to such determination.” Spearman v. State,

744 N.E.2d 545, 547 (Ind. Ct. App. 2001), trans. denied.

       Here, the jury heard evidence in phase one of the trial regarding the substantive

offenses of murder, intimidation, and carrying a handgun without a license, and the jury

returned a verdict of guilty on all three counts. Tr. at 198. It was not until after those

verdicts had been returned that the trial court had the jury address the possession of a

firearm by a SVF charge and the habitual offender allegation. Having found that Anderson

was guilty of carrying a handgun without a license in phase one of the trial, the only element

the State had to prove for the SVF conviction was that Anderson was a “serious violent

felon.” The State proved that element by introducing Anderson’s 1987 conviction for

robbery. Id. at 220. That predicate offense was one of the two predicate offenses used to

prove Anderson was a habitual offender.

       Inasmuch as the jury should be shielded from the defendant’s prior criminal history,

that is not possible when a defendant is both charged with SVF and alleged to be an habitual

offender. As soon as evidence is presented on either of those charges, the jury knows of

defendant’s criminal history. In other words, here, it would have been impractical to

bifurcate the evidence on the SVF count from the habitual offender allegation because

regardless of which charge was heard first, by the time the second charge was before the

jury, the jury would already know Anderson’s criminal history. Anderson suffered no

prejudice by the SVF and habitual offender counts being heard together. Appellate counsel


                                             13
was not ineffective for failing to raise meritless claims.

       “[W]e evaluate the competence of counsel by examining whether counsel’s

performance, as a whole, fell below ‘an objective standard of reasonableness’ based on

‘prevailing professional norms.’” Azania v. State, 738 N.E.2d 248, 251 (Ind. 2000)

(quoting Woods, 701 N.E.2d at 1211).           That is, effective assistance of counsel is

“determined according to the whole of the lawyer’s performance and not just on ‘the

strategy and performance at issue.’” Id. (quoting Butler v. State, 658 N.E.2d 72, 79 (Ind.

1995)). Even isolated poor strategy, bad tactics, a mistake, carelessness or inexperience

would not necessarily amount to ineffective counsel. Id. Here, appellate counsel and trial

counsel’s performances, taken as a whole, were more than adequate. Id. (quoting Davis v.

State, 675 N.E.2d 1097, 1100 (Ind. 1996)).

       Based on the foregoing, we conclude that Anderson was not denied the effective

assistance of appellate counsel. Therefore, we affirm the post-conviction court’s denial of

Anderson’s petition for relief.

       Affirmed.

BAILEY, J., and MAY, J., concur.




                                              14
