MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                             Feb 13 2020, 10:29 am

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


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Hosey L. Whitmore                                        Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Hosey L. Whitmore,                                       February 13, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         17A-PC-3039
        v.                                               Appeal from the
                                                         St. Joseph Superior Court
State of Indiana,                                        The Honorable
Appellee-Respondent                                      Elizabeth C. Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1506-PC-26



Vaidik, Judge.




Court of Appeals of Indiana | Memorandum Decision 17A-PC-3039 | February 13, 2020               Page 1 of 18
                                          Case Summary
[1]   Hosey Whitmore appeals the denial of his petition for post-conviction relief.

      We affirm.



                            Facts and Procedural History
[2]   The underlying facts of this case, taken from this Court’s opinion on direct

      appeal, are as follows:


              On the night of July 9, 2008, Whitmore, along with his friends,
              Andrew Harvey and Shannon Dockery, was gambling at an
              illegal gambling house run by Johnny Duke. After losing some
              money gambling, Whitmore left, and he and his friends went to
              the home of another friend, Jeffrey Winston. While there,
              Whitmore suggested they all return to Duke’s and rob him.
              Early the next morning, the four men left in Whitmore’s car,
              heading to Duke’s, but the car ran out of gas on the way and the
              men had to continue on foot. Winston and Harvey were armed
              with a .38 caliber and a .45 caliber handgun respectively.


              Whitmore and Dockery arrived at Duke’s house first, entered,
              and began playing dice with Duke. Winston and Harvey arrived
              a short time later. Harvey then drew his gun and pointed it at
              Duke. Whitmore and Dockery walked out of the house as Duke
              attempted to wrestle Harvey’s gun away from him. At some
              point during the scuffle, or shortly thereafter, Winston shot Duke
              twice, once in the head and once in the stomach. Harvey and
              Winston then stole money from Duke and another person in the
              house and fled. Duke died several days later from his injuries.


              While fleeing the house, Winston discarded his gun in some
              bushes. Later that day, Whitmore returned to retrieve the gun

      Court of Appeals of Indiana | Memorandum Decision 17A-PC-3039 | February 13, 2020   Page 2 of 18
                and hid it in a wall inside his home. At some point after the
                shooting, Whitmore flagged down a police officer and reported
                Duke had been shot, referring to Duke as his friend. Whitmore
                was questioned by police on three separate occasions. Initially,
                Whitmore lied to police about his involvement in the crime and
                provided false identities for his co-conspirators.


      Whitmore v. State, No. 71A03-0911-CR-507 (Ind. Ct. App. Mar. 25, 2010), trans.

      denied.


[3]   The State charged Whitmore and the three other men with felony murder and

      Class A felony robbery. Winston and Harvey pled guilty to robbery, and the

      State dismissed the felony-murder charges against them in exchange for their

      testimony against Whitmore and Dockery. At Whitmore’s jury trial, the State

      presented evidence that Dockery’s, Harvey’s, and Winston’s handprints were

      found on Whitmore’s car. Trial Tr. pp. 722-27. Following trial, Whitmore was

      found guilty of both charges. The trial court entered judgment of conviction for

      felony murder only and sentenced Whitmore to fifty-five years.


[4]   Whitmore was represented by counsel on direct appeal. Whitmore argued that

      the evidence was insufficient to support his felony-murder conviction under an

      accomplice-liability theory, the trial court abused its discretion in sentencing

      him, and his sentence was inappropriate. We found that the evidence was

      sufficient to support a finding that Whitmore knowingly and intentionally aided

      and induced the robbery and therefore affirmed his felony-murder conviction.

      See Whitmore, No. 71A03-0911-CR-507 (“[T]he evidence here indicates the

      robbery was Whitmore’s idea. In addition, Whitmore attempted to drive the

      Court of Appeals of Indiana | Memorandum Decision 17A-PC-3039 | February 13, 2020   Page 3 of 18
      group to Duke’s to commit the robbery. After the robbery and shooting,

      Whitmore recovered and hid the murder weapon.”). Although we found that

      the trial court did not abuse its discretion in sentencing Whitmore, we found

      that his fifty-five-year sentence was inappropriate because it was five years

      longer than the maximum sentence that Winston—the shooter—faced.

      Accordingly, we remanded the case for the trial court to suspend five years of

      Whitmore’s sentence to probation.


[5]   In 2015, Whitmore, pro se, filed a petition for post-conviction relief, which he

      later amended. Whitmore’s claims included ineffective assistance of trial and

      appellate counsel. In order to support his claims, Whitmore asked the post-

      conviction court to issue subpoenas to ten potential witnesses. The court

      denied eight of the subpoenas and issued two—one for Whitmore’s trial counsel

      and one for his appellate counsel. See Appellant’s P-C App. p. 92.


[6]   The evidentiary hearing on Whitmore’s petition was held in February 2017. As

      the hearing was getting ready to start, Whitmore told the post-conviction court

      that when he was transferred from the DOC to the St. Joseph County Jail three

      days earlier, the jail confiscated his legal documents, which he needed for the

      hearing. P-C Tr. p. 3. The State agreed that Whitmore needed his documents.

      The court took a break so that Whitmore’s documents could be brought over to

      him from the jail. Once Whitmore had his documents, the hearing started.

      Whitmore did not object. After the hearing, the post-conviction court entered

      an order denying relief.



      Court of Appeals of Indiana | Memorandum Decision 17A-PC-3039 | February 13, 2020   Page 4 of 18
[7]   Whitmore, pro se, now appeals.



                                 Discussion and Decision
[8]   Whitmore appeals the denial of his petition for post-conviction relief. A

      defendant who files a petition for post-conviction relief has the burden of

      establishing the grounds for relief by a preponderance of the evidence. Hollowell

      v. State, 19 N.E.3d 263, 268-69 (Ind. 2014). If the post-conviction court denies

      relief, and the petitioner appeals, the petitioner must show that the evidence

      leads unerringly and unmistakably to a conclusion opposite that reached by

      the post-conviction court. Id. at 269.


                         I. Fairness of Post-Conviction Hearing
[9]   Whitmore first contends that he was denied “a full and fair evidentiary hearing”

      because his legal documents were confiscated upon his arrival at the jail.

      Appellant’s Br. p. 11. He also notes that when his documents were returned to

      him, they were “out of context” with the paper clips and staples removed. Id. at

      12. While Whitmore did not have his documents at the beginning of the

      hearing, the post-conviction court took a break so that his documents could be

      brought over to him from the jail. Once Whitmore had his documents, the

      hearing started. Notably, Whitmore did not complain about the status of his

      documents, object on grounds that this solution was somehow inadequate, or

      request a continuance based on his inability to prepare for the hearing.

      Accordingly, because Whitmore did not raise this issue in the post-conviction

      court, it is waived. See Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004)
      Court of Appeals of Indiana | Memorandum Decision 17A-PC-3039 | February 13, 2020   Page 5 of 18
       (“[A]s a general rule, a party may not present an argument or issue on appeal

       unless the party raised that argument or issue before the trial court.”).


                     II. Ineffective Assistance of Trial Counsel
[10]   Whitmore next contends that his trial counsel was ineffective. When

       evaluating a defendant’s ineffective-assistance-of-counsel claim, we apply the

       well-established, two-part test from Strickland v. Washington, 466 U.S. 668

       (1984). Bobadilla v. State, 117 N.E.3d 1272, 1280 (Ind. 2019). The defendant

       must prove that (1) counsel rendered deficient performance, meaning counsel’s

       representation fell below an objective standard of reasonableness as gauged by

       prevailing professional norms and (2) counsel’s deficient performance

       prejudiced the defendant, i.e., but for counsel’s errors, there is a reasonable

       probability that the result of the proceeding would have been different. Id.


                           A. Failure to File Motion to Suppress
[11]   Whitmore argues that trial counsel should have filed a motion to suppress the

       evidence collected from the search of his car (handprints) on the basis that his

       “car had been processed before any warrant was issued.” Appellant’s Br. p. 25.

       Whitmore claims that the search warrant was obtained on July 17, 2008, but

       that the police searched his car before interviewing him on July 14 and 15,

       2008. The post-conviction court rejected this claim, finding that there was no

       basis for trial counsel to have filed a motion to suppress because the evidence

       showed that Whitmore’s “car was impounded, then searched after the officers

       obtained the warrant.” Appellee’s P-C App. Vol. II p. 38.


       Court of Appeals of Indiana | Memorandum Decision 17A-PC-3039 | February 13, 2020   Page 6 of 18
[12]   Whitmore challenges this finding on appeal. Specifically, he points out that the

       police asked him about Kristen Shelor during his July 14 and 15 interviews but

       that there is no way the police would have known about Shelor unless they

       searched his car before interviewing him (Shelor’s handprint was also found on

       Whitmore’s car). Not only does Whitmore provide no basis upon which the

       post-conviction court could have concluded that the police had no other reason

       to ask him about Shelor, but the record shows that the fingerprint report wasn’t

       completed until September 30, 2008—well after Whitmore’s July 14 and 15

       interviews. See Trial Tr. p. 721. The post-conviction court properly denied

       relief on this claim.


                       B. Failure to Object to Opening Statement
[13]   Whitmore argues that trial counsel was ineffective for failing to object to the

       prosecutor’s comment during opening statement that Whitmore knew the

       victim, Duke, because they were “neighbors.” See Trial Tr. p. 179. Whitmore

       claims that this statement constituted prosecutorial misconduct because the

       prosecutor knew that Whitmore and Duke weren’t neighbors. See Appellant’s

       Br. p. 21.


[14]   One purpose of an opening statement is to inform the jury of the anticipated

       evidence. See Splunge v. State, 526 N.E.2d 977, 981 (Ind. 1988), reh’g denied.

       The record shows that the prosecutor had a good-faith basis to call Whitmore

       and Duke “neighbors” during opening statement. Notably, Whitmore doesn’t

       dispute that he knew Duke. See Trial Ex. 31; P-C Ex. F. Moreover, Winston


       Court of Appeals of Indiana | Memorandum Decision 17A-PC-3039 | February 13, 2020   Page 7 of 18
       testified at trial that the house where Whitmore lived “[o]n and off” was “right

       over the tracks” from the gambling house. Trial Tr. pp. 319-21. As the post-

       conviction court found, “[t]his appears to be a factual dispute, not an instance

       of misconduct.” Appellee’s P-C App. Vol. II p. 37. The post-conviction court

       properly denied relief on this claim.


                                  C. Failure to Introduce Video
[15]   Whitmore argues that trial counsel was ineffective for failing to introduce a

       video of him speaking to South Bend Police Department Officer Rick McGee at

       the homicide office after the shooting. Whitmore claims that the video would

       have shown that Whitmore was at the homicide office until 8:15 a.m., which

       would have contradicted Winston’s trial testimony that Whitmore was

       somewhere else around this time.


[16]   Winston testified at trial that after the shooting, he, Whitmore, and Dockery

       ran to Whitmore’s house and that he tossed his gun in some bushes. According

       to Winston, the three men then parted ways, with Whitmore going to look for

       Harvey and he and Dockery going to his house. Winston testified that later

       that morning, “probably like” at 7:30 a.m., Whitmore stopped by his house and

       told him that he had “just left” the homicide office. Trial Tr. p. 338. Whitmore

       told Winston that he had retrieved the discarded gun from the bushes and put it

       inside a wall in his house. Whitmore also told Winston that when he walked

       outside after putting the gun inside the wall, he saw the police and flagged them

       down. Whitmore then told the police about the shooting at the gambling

       house, at which point he was transported to the homicide office for questioning.
       Court of Appeals of Indiana | Memorandum Decision 17A-PC-3039 | February 13, 2020   Page 8 of 18
[17]   Whitmore asserts that had trial counsel introduced the video of him speaking

       with Officer McGee at the homicide office after the shooting, it “would have

       shown that Whitmore could not have aided Jeffery Winston in the disposal of

       any weapons, because Whitmore was in police custody at the time Jeffery

       Winston claim[s] this took place.” Appellant’s Br. p. 18. Whitmore, however,

       did not introduce this video into evidence at the post-conviction hearing.

       Without the video, we can’t evaluate Whitmore’s claim. Whitmore has failed

       to carry his burden of proof on this issue.


                            D. Failure to Call Witnesses at Trial
[18]   Whitmore argues that trial counsel was ineffective for failing to call South Bend

       Police Department Officers McGee, Jayson McNicholas, and Angela Kline as

       defense witnesses at trial. He claims that had the officers testified, they would

       have contradicted Winston’s trial testimony that (1) Whitmore ran to his house

       after the shooting, retrieved the discarded gun from the bushes, and put the gun

       inside a wall in his house and (2) Whitmore was at Winston’s house around

       7:30 a.m.


[19]   We first note that there is nothing in the record suggesting that these officers

       would have testified as Whitmore claims. Whitmore first claims that Officer

       McGee would have testified that Whitmore was at the homicide office until

       8:15 a.m., which means that he could not have been at Winston’s house around

       7:30 a.m. like Winston testified. In support, Whitmore cites Officer McGee’s

       “Narrative Supplemental.” See P-C Ex. F. Although this report states that

       Officer McGee interviewed Whitmore shortly after 4 a.m., it does not state
       Court of Appeals of Indiana | Memorandum Decision 17A-PC-3039 | February 13, 2020   Page 9 of 18
       when Whitmore left the homicide office, much less that he was there until

       8:15 a.m.


[20]   Whitmore next claims that Officer McNicholas would have testified that he

       picked up Whitmore after the shooting and took him to the homicide office.

       According to Whitmore, because he was picked up after the shooting, there was

       no time for him to run back to his house and hide the gun like Winston

       testified. In support, Whitmore cites Officer McNicholas’s “Case Report.” See

       P-C Ex. H. Although this report states that Officer McNicholas was dispatched

       to the shooting, saw Whitmore running in the area, and picked him up, it does

       not give any times. As such, Officer McNicholas’s statement that he picked up

       Whitmore after the shooting doesn’t mean that Whitmore didn’t have time to

       run back to his nearby house first.


[21]   Finally, Whitmore claims that Officer Kline would have testified that she and

       her K-9 searched Whitmore’s house and didn’t find a gun, which means that he

       didn’t put the gun inside a wall in his house like Winston testified. As support,

       Winston cites Officer Kline’s “Case Report.” See P-C Ex. O. This report,

       however, only states that Officer Kline and her K-9 searched the house in order

       to “look[] for other potential suspects.” In other words, Officer Kline did not




       Court of Appeals of Indiana | Memorandum Decision 17A-PC-3039 | February 13, 2020   Page 10 of 18
       search the house for a gun.1 Whitmore has failed to prove that trial counsel was

       deficient for not calling these witnesses at trial.


[22]   In any event, even if the officers would have testified like Whitmore claims,

       Whitmore has failed to establish a reasonable probability that the result of his

       trial would have been different. Whitmore was convicted of felony-murder as

       an accomplice. Even if Whitmore did not dispose of the gun, as we explained

       on direct appeal, there was other evidence establishing that Whitmore

       knowingly and intentionally aided and induced the robbery. Winston and

       Harvey testified at trial that the robbery was Whitmore’s idea, Whitmore drove

       the group to the gambling house, Dockery’s, Harvey’s, and Winston’s

       handprints were found on Whitmore’s car, and Whitmore told changing stories

       to the police. The post-conviction court properly denied relief on this claim. 2


                                  E. Failure to Request a Mistrial
[23]   Whitmore argues that trial counsel was ineffective for failing to request a

       mistrial based on the judge’s alleged bias.3 A mistrial is appropriate only when




       1
         Whitmore also claims that trial counsel should have called Earl Richmond as a defense witness at trial.
       Richmond was at the gambling house when Duke got shot. Whitmore asserts that Richmond would have
       testified that Whitmore tried to stop the robbery. Whitmore, however, cites no evidence to support this
       claim. In fact, the only evidence in the record shows that Richmond identified Whitmore “as one of the
       individuals who had been gambling with them earlier that evening, and who had returned and robbed
       [Richmond] and Duke.” P-C Ex. O.
       2
         For these same reasons, Whitmore’s claim that the post-conviction court erred in failing to issue subpoenas
       to these witnesses is without merit.
       3
        Whitmore also raises the judge’s bias as a freestanding claim. See Appellant’s Br. pp. 36-39. But as the
       State argues on appeal and the post-conviction court found below, freestanding claims are not available on


       Court of Appeals of Indiana | Memorandum Decision 17A-PC-3039 | February 13, 2020               Page 11 of 18
       the questioned conduct is so prejudicial and inflammatory that the defendant

       was placed in a position of grave peril to which he should not have been

       subjected. See Pittman v. State, 885 N.E.2d 1246, 1255 (Ind. 2008). The gravity

       of the peril is measured by the conduct’s probable persuasive effect on the jury.

       Id.


[24]   The record shows that before voir dire started, the judge told the parties that she

       and her husband had “guardianship of [the] son of the half brother” of Winston

       and that she had known Winston for eight years. Trial Tr. p. 6.4 The judge

       explained that she recused herself in Winston’s case; however, she didn’t

       “anticipate that to be problem in this case” because she was not the finder of

       fact. Id. The judge asked the parties if they had “any problem” or wanted to

       make a record, and they said no. Id. at 6-7.


[25]   After Winston testified at trial, the judge recessed for lunch. After returning

       from lunch, the judge disclosed to the parties that she did something “really

       stupid” during the break. Id. at 479. That is, “after the court was over” and

       “while the jury was back in the jury room,” the judge went and got a

       photograph of the boy she had guardianship of and showed it to Winston, at




       post-conviction. See Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002) (“In post-conviction proceedings,
       complaints that something went awry at trial are generally cognizable only when they show deprivation of
       the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal.”).
       Accordingly, we address the judge’s bias under ineffective assistance of trial counsel only.
       4
        The record is not entirely clear about the relationship between the child the judge has guardianship of and
       Winston. Whitmore claims that the judge has guardianship of “Winston’s son’s brother.” Appellant’s Reply
       Br. p. 3. Our decision would be the same under either relationship.

       Court of Appeals of Indiana | Memorandum Decision 17A-PC-3039 | February 13, 2020               Page 12 of 18
       which point Winston started crying. Id. at 480. The judge told him that she

       didn’t mean to make him cry. The judge told the parties that she didn’t think

       what she did was grounds for a mistrial, because “[n]o one was there when I

       did it”; however, she said it was very “impulsive” and “the wrong thing to do.”

       Id. at 480. The judge asked the parties if they wanted to make a record, and

       trial counsel responded that he wasn’t “going to make any further record” than

       the one she already had made. Id. The jury was brought back in, and the trial

       resumed.


[26]   Whitmore’s claim that trial counsel should have requested a mistrial is based on

       a misunderstanding of the facts. In his brief, Whitmore states that the judge

       showed Winston the photo “while he was on the stand” and that Winston

       started “crying in court.” Appellant’s Br. p. 23. As described above, this is not

       what happened. Rather, the incident happened while the jury was in the jury

       room. Although we agree with the judge’s characterization of her conduct,

       because it occurred outside the presence of the jury, we conclude that

       Whitmore was not placed in a position of grave peril.5 This is especially so

       given trial counsel’s testimony at the post-conviction hearing that his decision

       not to request a mistrial was most likely strategic as he remembered thinking

       that the trial was going well. See P-C Tr. p. 47.




       5
         In an attempt to show that the judge exhibited bias against him in front of the jury, Whitmore cites some of
       the judge’s evidentiary rulings. However, he makes no argument that these rulings were incorrect. In any
       event, an adverse ruling alone is not sufficient to show that a judge was biased or prejudiced. See Flowers v.
       State, 738 N.E.2d 1051, 1060 n.4 (Ind. 2000), reh’g denied.

       Court of Appeals of Indiana | Memorandum Decision 17A-PC-3039 | February 13, 2020                Page 13 of 18
                F. Failure to Consult with Whitmore on Plea Offer
[27]   Whitmore argues that trial counsel was ineffective for failing to communicate to

       him a second plea offer from the State. See P-C Ex. N. Trial counsel has the

       duty to communicate formal offers from the State, and trial counsel’s failure to

       do so is deficient performance. See Woods v. State, 48 N.E.3d 374, 381 (Ind. Ct.

       App. 2015).


[28]   At the post-conviction hearing, Whitmore asked trial counsel why he didn’t tell

       him about the second plea offer from the State. Trial counsel testified that he

       “believe[d]” he discussed the second offer with Whitmore. P-C Tr. p. 53.

       Although trial counsel couldn’t remember the specifics of Whitmore’s case, he

       said he would have discussed “any offers” with Whitmore “as part of [his]

       normal practice.” Id. at 54. The post-conviction court chose to believe trial

       counsel, concluding that Whitmore failed to prove that trial counsel did not

       communicate the second offer to him. Appellee’s P-C App. Vol. II pp. 38-39;

       see Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004) (“The post-conviction court

       is the sole judge of the weight of the evidence and the credibility of witnesses.”).

       We affirm the post-conviction court on this claim.


                III. Ineffective Assistance of Appellate Counsel
[29]   Finally, Whitmore contends that his appellate counsel was ineffective.

       Although we generally consider claims of ineffective assistance of appellate

       counsel as analogous to claims of trial counsel ineffectiveness, there are

       significant and important differences between the roles of appellate counsel and


       Court of Appeals of Indiana | Memorandum Decision 17A-PC-3039 | February 13, 2020   Page 14 of 18
       trial counsel. Ben-Yisrayl v. State, 738 N.E.2d 253, 260 (Ind. 2000), reh’g denied.

       To prevail on a claim of ineffective assistance of appellate counsel, a defendant

       must show from the information available in the trial record or otherwise

       known to appellate counsel that appellate counsel failed to present a significant

       and obvious issue and that this failure cannot be explained by any reasonable

       strategy. Id. at 261.


                      A. Failure to Challenge Admission of Letter
[30]   Whitmore argues that appellate counsel was ineffective for not arguing on

       direct appeal that the trial court erred in admitting a letter that Whitmore

       allegedly sent to Harvey from jail. Whitmore claims that this letter should not

       have been admitted without an exemplar of his writing for comparison. The

       post-conviction court found that appellate counsel was not ineffective for not

       raising this issue on direct appeal because trial counsel did not object to the

       admission of Whitmore’s letter at trial:


               At trial, [trial counsel] agreed to the Court’s handling of the
               letters. When the parties were discussing the possibility of
               putting into evidence the letter that [Whitmore] had written to
               the Court for use as a handwriting exemplar to compare to the
               other, unsigned, letter purportedly written by [Whitmore], [trial
               counsel] stated that it wasn’t necessary because he was not going
               to be arguing that [Whitmore] did not write the letter. According
               to [trial counsel], he was going to offer an explanation to the jury
               for the letter.




       Court of Appeals of Indiana | Memorandum Decision 17A-PC-3039 | February 13, 2020   Page 15 of 18
       Appellee’s P-C App. Vol. II p. 41 (citing Trial Tr. pp. 539-48). When the State

       later offered the letter into evidence, trial counsel said, “No objection.” Trial

       Tr. p. 559.


[31]   On appeal, Whitmore does not acknowledge that trial counsel did not object

       when the letter was offered into evidence. Failure to object when evidence is

       introduced at trial waives the issue for appeal. See Delarosa v. State, 938 N.E.2d

       690, 694 (Ind. 2010). Accordingly, the post-conviction court properly

       concluded that Whitmore failed to prove that appellate counsel was ineffective

       for not raising this waived issue on direct appeal.


          B. Failure to Raise Ineffective Assistance of Trial Counsel
[32]   Whitmore argues that appellate counsel was ineffective for failing to raise a

       claim of ineffective assistance of trial counsel on direct appeal. As our Supreme

       Court has explained, “a postconviction hearing is normally the preferred forum

       to adjudicate an ineffectiveness claim.” Woods v. State, 701 N.E.2d 1208, 1219

       (Ind. 1998), reh’g denied. This is so because presenting such claims often

       requires the development of facts not present in the trial record. Rogers v. State,

       897 N.E.2d 955, 964-65 (Ind. Ct. App. 2008), reh’g denied, trans. denied. If a

       defendant raises ineffective assistance of trial counsel on direct appeal, the

       doctrine of res judicata bars him from raising additional claims of ineffective

       assistance of trial counsel on post-conviction. Timberlake v. State, 753 N.E.2d

       591, 602 (Ind. 2001), reh’g denied.




       Court of Appeals of Indiana | Memorandum Decision 17A-PC-3039 | February 13, 2020   Page 16 of 18
[33]   Whitmore claims that he asked appellate counsel to argue on direct appeal that

       trial counsel was ineffective for not objecting when the State played a redacted

       version of his statements to police because the parties had agreed that the State

       would play the full version. Appellate counsel testified at the post-conviction

       hearing that he did not raise this issue on direct appeal because it required the

       development of facts not in the record (i.e., the alleged video that was not

       played) and therefore should be pursued on post-conviction. P-C Tr. pp. 24-25.

       In light of this testimony, the post-conviction court concluded that appellate

       counsel was not ineffective for failing to raise this undeveloped issue on direct

       appeal. Appellee’s P-C App. Vol. II p. 42. The post-conviction court properly

       denied relief on this claim.6


                                           C. Conflict of Interest
[34]   Whitmore argues that appellate counsel was ineffective because he had a

       conflict of interest based upon his representation of Winston in another case.

       To establish a conflict of interest amounting to a Sixth Amendment violation,

       the defendant must establish that counsel had an actual conflict of interest and

       that the conflict adversely affected counsel’s performance. Coleman v. State, 694

       N.E.2d 269, 273 (Ind. 1998); Shepherd v. State, 924 N.E.2d 1274, 1287 (Ind. Ct.

       App. 2010), trans. denied.




       6
        Notably, Whitmore himself doesn’t separately argue that trial counsel was ineffective for failing to object.
       He only argues that appellate counsel should have raised the issue.

       Court of Appeals of Indiana | Memorandum Decision 17A-PC-3039 | February 13, 2020                 Page 17 of 18
[35]   Even assuming that appellate counsel had an actual conflict of interest, the post-

       conviction court found that Whitmore failed to establish that “he was in any

       way prejudiced” by appellate counsel’s representation of Winston in the other

       case. Appellee’s P-C App. Vol. II p. 42. On appeal, Whitmore maintains that

       he was, in fact, prejudiced because appellate counsel “withdrew from [his]

       direct appeal and stated he could not file the petition for transfer,” thereby

       leaving him “in the middle of his direct appeal without counsel.” Appellant’s

       Br. p. 44. The implication is that appellate counsel withdrew because of the

       conflict of interest. But as appellate counsel testified at the post-conviction

       hearing, he did not withdraw from Whitmore’s direct appeal because of any

       conflict of interest; rather, he withdrew when the direct appeal was over

       because the public defender’s office did not authorize him to seek transfer. P-C

       Tr. p. 29. The post-conviction court properly denied relief on this claim.


[36]   Affirmed.


       Riley, J., and Bradford, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 17A-PC-3039 | February 13, 2020   Page 18 of 18
