 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of
                                                                        Aug 21 2014, 9:28 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.




ATTORNEYS FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS                                   GREGORY F. ZOELLER
Public Defender of Indiana                         Attorney General of Indiana

KATHLEEN CLEARY                                    BRIAN REITZ
Deputy Public Defender                             Deputy Attorney General
Indianapolis, Indiana                              Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

ANTONIO D. ROSE,                                   )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
           vs.                                     )       No. 45A03-1312-PC-478
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )

                       APPEAL FROM THE LAKE SUPERIOR COURT
                        The Honorable Thomas P. Stefaniak, Jr., Judge
                              Cause No. 45G04-1211-PC-018


                                         August 21, 2014
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       Antonio D. Rose (“Rose”) challenges the Lake Superior Court’s denial of his

petition for post-conviction relief. On appeal, Rose presents three issues, which we

restate as:

       I.     Whether the post-conviction court erred in concluding that Rose’s trial
              counsel was not ineffective for failing to preserve for appeal the issue of
              whether the trial court improperly limited Rose’s cross-examination of the
              State’s key witness regarding another, unrelated burglary charge pending
              against that witness;

       II.    Whether the post-conviction court erred in concluding that Rose’s appellate
              counsel was not ineffective for not presenting the issue of the trial court’s
              limitation of Rose’s cross-examination of this witness; and

       III.   Whether the post-conviction court erred in concluding that Rose was not
              deprived of due process of law when the State failed to disclose to Rose
              prior to his sentencing that it had reached a plea agreement with this
              witness in the unrelated burglary charge.

       We affirm.

                             Facts and Procedural History

       The facts underlying Rose’s convictions were set forth in our memorandum

decision in Rose’s direct appeal:

       On July 14, 2007, Larry Williams was walking by himself in Gary when he
       encountered Rose and William Pope, who intended to rob Williams. Pope
       struck Williams, and Williams pulled out a knife. Pope struck Williams
       again, and Williams fell to the ground. Pope kicked Williams in the head
       repeatedly, and Rose kicked Williams’ body several times. Rose also
       “stood on top of” Williams and hit him four times in the jaw. Finally, Pope
       took $12 from Williams, and Pope and Rose left the scene. Williams died
       as a result of his injuries.

Rose v. State, No. 45A03-0808-CR-419, 2009 WL 588925, slip op. at 2 (Ind. Ct. App.

Mar. 6, 2009) (record citation omitted).



                                            2
       As a result of this incident, on December 8, 2007 the State charged Rose with

murder, felony murder, and robbery. On May 29, 2008, a jury found Rose guilty of

felony murder, robbery, and the lesser included offense of aggravated battery, but the trial

court entered judgment only on the felony murder conviction and sentenced Rose to fifty-

six years executed. Id.

       On direct appeal, Rose argued that there was no evidence that he knowingly or

intentionally robbed Williams and that his felony murder conviction thereby could not

stand. We rejected this argument, noting that both Pope’s testimony and Rose’s own

testimony indicated that they had intended to rob Williams. Id., slip op. at 3. Rose also

claimed that the trial court’s sentence constituted an abuse of discretion and was

disproportionate to his role in the crime. We again rejected these claims, noting that

Rose was a willing and active participant in a brutal, fatal beating of a man for $12. Id.,

slip op. at 4.

       Rose subsequently filed a pro se petition for post-conviction relief on November

19, 2012. Rose filed an amended petition, by counsel, on May 28, 2013. The post-

conviction court held an evidentiary hearing on Rose’s petition on July 25, 2013, and

issued findings of fact and conclusions of law on November 14, 2013, denying Rose’s

petition. Rose now appeals.

                          Post-Conviction Standard of Review

       Post-conviction proceedings are not “super appeals” through which convicted

persons can raise issues they failed to raise at trial or on direct appeal. McCary v. State,

761 N.E.2d 389, 391 (Ind. 2002). Rather, post-conviction proceedings afford petitioners

                                             3
a limited opportunity to raise issues that were unavailable or unknown at trial and on

direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). A post-conviction

petitioner bears the burden of establishing grounds for relief by a preponderance of the

evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). On appeal from the denial

of post-conviction relief, the petitioner stands in the position of one appealing from a

negative judgment. Id. To prevail on appeal from the denial of post-conviction relief, the

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

conclusion opposite that reached by the post-conviction court. Id. at 643-44.

      Where, as here, the post-conviction court makes findings of fact and conclusions

of law in accordance with Indiana Post-Conviction Rule 1(6), we must determine if the

court’s findings are sufficient to support its judgment. Graham v. State, 941 N.E.2d 1091,

1096 (Ind. Ct. App. 2011), aff’d of reh’g, 947 N.E.2d 962. Although we do not defer to

the post-conviction court’s legal conclusions, we review the post-conviction court’s

factual findings under a clearly erroneous standard.      Id.   Accordingly, we will not

reweigh the evidence or judge the credibility of witnesses, and we will consider only the

probative evidence and reasonable inferences flowing therefrom that support the post-

conviction court’s decision. Id.

                             I. Assistance of Trial Counsel

      Rose’s first claim is that his trial counsel was ineffective. In Timberlake v. State,

our supreme court summarized the law regarding claims of ineffective assistance of trial

counsel as follows:



                                            4
           A defendant claiming a violation of the right to effective assistance of
       counsel must establish the two components set forth in Strickland v.
       Washington, 466 U.S. 668 (1984). First, the defendant must show that
       counsel’s performance was deficient. This requires a showing that
       counsel’s representation fell below an objective standard of reasonableness,
       and that the errors were so serious that they resulted in a denial of the right
       to counsel guaranteed the defendant by the Sixth Amendment. Second, the
       defendant must show that the deficient performance prejudiced the defense.
       To establish prejudice, a defendant must show that there is a reasonable
       probability that, but for counsel’s unprofessional errors, the result of the
       proceeding would have been different. A reasonable probability is a
       probability sufficient to undermine confidence in the outcome.
           Counsel is afforded considerable discretion in choosing strategy and
       tactics, and we will accord those decisions deference.             A strong
       presumption arises that counsel rendered adequate assistance and made all
       significant decisions in the exercise of reasonable professional judgment.
       The Strickland Court recognized that even the finest, most experienced
       criminal defense attorneys may not agree on the ideal strategy or the most
       effective way to represent a client. Isolated mistakes, poor strategy,
       inexperience, and instances of bad judgment do not necessarily render
       representation ineffective. The two prongs of the Strickland test are
       separate and independent inquiries. Thus, [i]f it is easier to dispose of an
       ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
       course should be followed.

753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations omitted).

       In the present case, Rose claims that his trial counsel’s performance was deficient

because he failed to properly preserve for appeal the issue of whether the trial court erred

in limiting the scope of Rose’s cross-examination of Pope.            For purposes of our

discussion, we assume arguendo that Rose’s trial counsel failed to properly preserve the

issue for appeal, and we can instead focus on the question of whether the trial court erred

in limiting the scope of Rose’s cross-examination of Pope. Simply said, if the trial court

did not err in limiting Rose’s cross-examination of Pope, then the fact that Rose’s trial




                                             5
counsel did not preserve the issue for appeal is irrelevant, because even if the issue had

been preserved, Rose would not have prevailed on direct appeal.

        Rose argues that the trial court erred by limiting the scope of his cross-

examination of Pope with regard to an unrelated Class B felony burglary charge that was

pending against Pope. Specifically, Pope was arrested on October 17, 2007, shortly after

the attack in this case, and charged as a juvenile with Class C felony burglary. Then, on

May 13, 2008—shortly before the trial in the present case—the juvenile burglary case

was transferred to adult court, and the charge was amended to allege Class B felony

burglary.1

        The trial court granted the State’s pre-trial motion in limine to prevent Rose from

asking Pope about this unrelated charge. The State explained in a pre-trial hearing that it

had no intention to give Pope any favorable consideration in the burglary case in

exchange for his testimony against Rose. Indeed, the prosecuting attorney noted that

Pope had already received a bargain for agreeing to plead guilty and testify against Rose

in the murder case, and that “there [was] going to be no more consideration for his

testimony [against Rose].” Tr. pp. 109-10.

        Importantly, although Rose was prevented from presenting to the jury any

evidence of the pending burglary charge, he was able to cross-examine Pope regarding

the plea agreement he had with the State in the murder case. Under cross-examination,

Pope admitted that he had made a plea agreement in exchange for testifying against Rose

1
  As discussed below, Pope later pleaded guilty to the lesser-included charge of Class D felony theft on
July 15, 2008, just two days before Rose was sentenced.


                                                   6
and that he received a sentence of only thirty years, despite his more active, and arguably

more culpable, role in the victim’s death.

       Rose now claims that the trial court’s ruling limiting his cross-examination of

Pope regarding the burglary charge was a violation of his constitutional rights to cross-

examine the witnesses against him. In support of his argument, Rose cites Davis v.

Alaska, 415 U.S. 308 (1974).

       In Davis the defendant was convicted of burglary and grand larceny after the trial

court had prohibited him from cross-examining a key State witness with regard to the fact

that the witness was on probation for a juvenile adjudication for burglary. The witness

had identified Davis as one of the men he had encountered and spoke to as they stood

next to a car near the scene of the burglary. The defense wanted to show that the

witness’s fear of having his probation revoked influenced his testimony; that is, the

defense wanted to capitalize on the witness’s fear of being considered a suspect and his

fear that unfavorable testimony might affect his probationary status. The trial court had

prevented Davis from questioning the witness in this regard, citing an Alaska rule

prohibiting the admission of such juvenile records in a court proceeding. Because of the

exclusion of this evidence, the witness provided deceptive testimony by denying that law

enforcement officials had ever questioned him, and his testimony went unchallenged due

to the trial court’s exclusion of the witness’s juvenile record. The United States Supreme

Court granted certiorari in Davis and held that the trial court’s act of limiting Davis’s

cross-examination of the juvenile witness regarding this impeaching evidence constituted



                                             7
a denial of Davis’s Sixth Amendment right to confront the witnesses against him. Id. at

317-18.

      Rose claims that Davis supports his claim that he had a Sixth Amendment right to

question Pope regarding the pending burglary charge against him. We, however, find

Davis to be distinguishable. The witness in Davis had provided deceptive testimony by

denying that he had ever been questioned by the police. Id. at 313-14.          And this

testimony went unchallenged due to the trial court’s exclusion of the witness’s juvenile

record. Id. Here, however, there was nothing deceptive about Pope’s testimony. See

Martin v. State, 736 N.E.2d 1213, 1220 (Ind. 2000) (distinguishing Davis by noting that

there was nothing deceptive about the testimony of the witness at issue regarding his

adjudications or prior encounters with law enforcement).

      Additionally, Rose’s trial counsel was able to thoroughly cross-examine Pope

regarding his involvement with the robbery and murder of Williams and the favorable

treatment he had received as a result of his plea agreement with the State. Thus, the jury

was well aware of Pope’s biases and had the information it needed to question his

credibility. Exposing the jury to the fact that Pope also had another pending charge

would not have made his testimony any less credible or his bias any greater. In this

respect, the facts of the present case are directly on point with those in Logan v. State,

729 N.E.2d 125 (Ind. 2000).

      In Logan, the trial court excluded evidence regarding the juvenile record of a

State’s witness. On appeal, the defendant claimed that this was in violation of his Sixth

Amendment right to confront this witness, citing Davis. Our supreme court rejected this

                                            8
claim, noting that defense counsel was able to “vigorously” cross-examine the witness

and impeach him regarding lies he had told to the police, his involvement with the crime,

and his bias associated with his plea agreement. Id. at 134. The Logan court also

rejected Logan’s claim that the admission of the juvenile record would have shown “extra

incentive” for Harrison to testify against him:

        However, unlike this case, in Davis the trial court’s decision not to allow
        the introduction of a witness’s juvenile adjudication precluded the
        defendant from presenting any evidence of bias. Such is not the case here.
        Logan was able to present evidence of Harrison’s alleged bias to the jury.
        We fail to see how this alleged extra incentive was necessary for a fair
        determination of guilt or innocence. The jury was aware that Harrison
        received favorable treatment from the State in exchange for his testimony
        against Logan. The juvenile adjudication would have added little, if
        anything, to Logan’s impeachment of Harrison.

Id. at 134-35 (emphasis added).

        The same is true here. Unlike in Davis, Rose was able to present ample evidence

of Pope’s bias. And we fail to see how evidence regarding the pending, unrelated

burglary charge against Pope would added much, if anything, to Rose’s impeachment of

Pope. As in Logan, the jury was well aware that Pope had received favorable treatment

from the State in exchange for his testimony against Rose.2

        Following Logan, we conclude that the trial court did not err in limiting the Rose’s

cross-examination of Pope regarding the pending, unrelated burglary charge. Therefore,

2
   For this reason, we also find Smith v. State, 721 N.E.2d 213 (Ind. 1999), cited by Rose, to be
distinguishable. In Smith, the court held that the trial court had erred by preventing the defendant from
cross-examining two of the State’s witnesses regarding unrelated charges pending against them. Id. at
219-20. In Smith, this prevented the defendant from exposing the biases of these witnesses. See id. Here,
however, Rose had already clearly established the Pope’s bias and his motivation to testify against Rose.
Thus, we find this case more similar to Logan than to Smith.


                                                   9
Rose’s trial counsel’s performance was not deficient for failing to preserve this issue for

appeal, because even if it had been preserved, Rose would not have been successful on

direct appeal. Accordingly, the post-conviction court did not clearly err in rejecting

Rose’s claim of ineffective assistance of trial counsel.

                           II. Assistance of Appellate Counsel

       Rose also claims that, if his trial counsel did properly preserve the issue of the trial

court’s limitation of his cross-examination of Pope, then his appellate counsel was

ineffective for failing to present this issue on direct appeal. When we review claims of

ineffective assistance of appellate counsel, we use the same standard applied to claims of

ineffective assistance of trial counsel. Harris v. State, 861 N.E.2d 1182, 1186 (Ind. 2007).

That is, the post-conviction petitioner must show that appellate counsel’s performance

fell below an objective standard of reasonableness and that there is a reasonable

probability that but for the deficient performance of counsel the result of the proceeding

would have been different. Id.

       Here, Rose’s claim of ineffective assistance of appellate counsel is based wholly

on his claim that the trial court erred in limiting his cross-examination of Pope regarding

his pending, unrelated burglary charge. However, we have already concluded above that

the trial court did not err in limiting Rose’s cross-examination of Pope. Therefore, even

if Pope’s appellate counsel had presented this issue on appeal, it would not have been

successful. Rose’s appellate counsel cannot be said to have been ineffective for failing to

present a claim that would not have been successful. Accordingly, the post-conviction



                                             10
court did not clearly err in rejecting Rose’s claim of ineffective assistance of appellate

counsel.

                               III. Denial of Due Process

      Lastly, Rose claims that he was denied the due process of law at the sentencing

when the State failed to inform him that, in the unrelated burglary case, Pope agreed to

plead guilty to the lesser offense of Class D felony theft on July 15, 2008, just two days

prior to Rose’s sentencing. Rose does not couch this argument in terms of ineffective

assistance of counsel. Instead, his argument is simply that the State’s failure to disclose

Pope’s plea to Class D felony theft constitutes a Brady violation that deprived him of due

process.

      In Brady v. Maryland, the United States Supreme Court held that “the
      suppression by the prosecution of evidence favorable to an accused upon
      request violates due process where the evidence is material either to guilt or
      to punishment, irrespective of the good faith of the prosecution.” 373 U.S.
      83, 87, 83 S. Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963). To prevail on
      a Brady claim, a defendant must establish: (1) that the prosecution
      suppressed evidence; (2) that the evidence was favorable to the defense;
      and (3) that the evidence was material to an issue at trial. Id.; United States
      v. Bagley, 473 U.S. 667, 685, 105 S. Ct. 3375, 3385, 87 L.Ed.2d 481
      (1985). Evidence is “material” only if there is a “reasonable probability
      that, had the evidence been disclosed to the defense, the result of the
      proceeding would have been different.” Bagley, 473 U.S. at 685, 105 S. Ct.
      at 3385, 87 L.Ed.2d at 496.

Minnick v. State, 698 N.E.2d 745, 755 (Ind. 1998).




                                            11
        Here, even if we assume that the prosecution “suppressed” the evidence of Pope’s

conviction,3 we still cannot say that Rose has established a Brady violation. This is so

because we agree with the post-conviction court that Rose has not established that the

evidence of Pope’s plea agreement was “material,” i.e., that there was a reasonable

probability that, had Pope’s plea been disclosed to the defense, that the result of the

proceeding—Pope’s sentencing hearing—would have been different.

        Rose claims that the information regarding the plea in the burglary case is proof

that Pope did, in fact, receive favorable consideration in that case for testifying against

Rose in the murder case. However, the post-conviction court clearly rejected this, finding

that there was “no evidence that Pope received a deal in his burglary case in exchange for

his testimony against Rose in the murder trial.” Appellant’s App. p. 96. Rose points us

to no evidence that would cause us to conclude that this finding was clearly erroneous.

The simple fact that Pope later pleaded guilty to a lesser offense in the burglary case does

not prove, ipso facto, that the State agreed to this plea because of Pope’s testimony

against Rose in the murder case.

        But even if Pope’s plea to Class D felony theft in the burglary case was evidence

of a quid pro quo with the State for his testimony in Rose’s case, we still fail to see how

this would have benefited Rose in such a manner as to lead to a different sentence. The
3
  Rose notes that his trial counsel was unaware of Pope’s plea in the burglary case until shortly before the
post-conviction hearing. We would note, however, that conviction records are generally a matter of
public record and should be relatively easy to obtain. And we note that, here, Rose was well aware of the
pending charges against Pope in the burglary case. Thus, this case is unlike State v. Hollin, 970 N.E.2d
147, 153-54 (Ind. 2012), where the court held that the State had committed a Brady violation by not
disclosing to the defendant that the State’s witness had other pending charges against him and a pending
petition to revoke his probation.


                                                    12
fact that Pope pleaded guilty to a lesser sentence in a wholly unrelated crime has little to

no bearing on his role in the murder of Williams. As such, we cannot say that this

information would have been significantly mitigating at Rose’s sentencing.4

       Because the information regarding Pope’s plea agreement in his burglary case was

neither favorable nor material, there was no Brady violation even if we assumed the State

“suppressed” this evidence. Therefore, the post-conviction court did not clearly err in

denying Rose’s claim of a Brady violation when the State did not inform him that Pope

had pleaded guilty immediately before Rose’s sentencing hearing.

                                            Conclusion

       The post-conviction court did not clearly err in rejecting Rose’s claims of

ineffective assistance of trial counsel and ineffective assistance of appellate counsel

because the trial court did not violate Rose’s constitutional rights to confrontation when it

limited his cross-examination of Pope with regard to Pope’s pending, unrelated charge

for burglary. Nor did the post-conviction court clearly err when it concluded that there

had been no Brady violation when the State did not inform Rose that Pope had pleaded

guilty in the unrelated crime before Rose’s sentencing hearing.

       Affirmed.

RILEY, J., and CRONE, J., concur.



4
  We note that Rose does not claim that there was a Brady violation by the fact that Pope’s plea in the
burglary case was not disclosed to the defense before trial. At the time of the trial, Pope had not yet
pleaded guilty in the burglary case. Thus, Rose can only claim that a Brady violation occurred with
regard to his sentencing hearing.


                                                  13
