MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                              Dec 19 2017, 5:32 am

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


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
J.B. Whitelow, Jr.                                       Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Ian McLean
                                                         Supervising Deputy
                                                         Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

J.B. Whitelow, Jr.                                       December 19, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         45A03-1701-PC-129
        v.                                               Appeal from the Lake Superior
                                                         Court 3
State of Indiana,                                        The Honorable Diane Ross
Appellee-Respondent.                                     Boswell, Judge
                                                         The Honorable Natalie Bokota,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         45G03-1206-PC-009



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017        Page 1 of 28
[1]   After this court affirmed his conviction for murder and attempted battery, J.B.

      Whitelow, Jr., (“Whitelow”) filed a petition for post-conviction relief in the

      Lake Superior Court, which denied the petition. Whitelow appeals and presents

      eight issues, which we consolidate and restate as the following two: (1) whether

      the post-conviction court clearly erred in determining that Whitelow was not

      denied the effective assistance of trial counsel, and (2) whether the post-

      conviction court clearly erred in determining that Whitelow was not denied the

      effective assistance of appellate counsel.


[2]   We affirm.


                                 Facts and Procedural History
[3]   We summarized the facts underlying Whitelow’s convictions in our

      memorandum decision on direct appeal as follows:


              In September 2008, an errantly thrown lemon slice mixed with
              hot tempers, leading to a scuffle and shooting death outside a bar
              in Hammond. Sometime between two and three o’clock in the
              morning on September 21, a bartender threw a slice of lemon to
              get the attention of a male patron, but by mistake hit Darnell
              Jones (a.k.a. “Dada”). Dada became angry, threw a glass, and
              was escorted out by Rob Moore (a.k.a. “House”), one of the bar’s
              security guards. Upon exiting, Dada began to argue with House
              and Eric Lowe (a.k.a. “Herc”), another security guard. House
              and Herc followed Dada to his car, and Dada then swung open
              his car door, hitting Herc with it. House and Herc decided to
              detain Dada and call the police, and struggled to pull him from
              the car.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 2 of 28
        At this time House heard screaming nearby, saw a woman
        restraining a man he later identified as Whitelow, heard a
        gunshot, and then ducked behind a car parked next to Dada’s.
        House then darted toward his own car to retrieve a gun, but en
        route remembered his gun was not in his car and instead ran back
        to the bar, where he alerted the other security guards to the
        shooting and told them to call 911. House then saw Herc begin to
        chase Whitelow.


        Keith Berry (a.k.a. “Butch”), another security guard, also saw
        Herc chase Whitelow, and saw Whitelow point a gun and shoot
        Herc in the head. Butch ran up to Whitelow, put him in a
        headlock, and was lying on the ground holding Whitelow’s head
        and neck while someone else kicked Butch in the head repeatedly
        and yelled at him to let go of Whitelow. At least one other joined
        the scuffle and yelled at Butch to let go of Whitelow. Herc died
        of his injuries.


        Rodreon Jones accompanied Dada to the bar that evening and
        knew Whitelow. After the gunshots and scuffle, of which she
        personally saw and heard some but not all of what happened, she
        called Whitelow’s cellular phone and asked him why he shot the
        security guard. He said “I didn’t do that. I got blood all over my
        shirt and my pants,” and then hung up.


        Over a period of months in early 2009, Whitelow described the
        incident to Brandon Humphrey three or four times. Whitelow
        told Humphrey that his sister’s child’s father, Dada, was kicked
        out of the bar and was being hassled by a security guard, so
        Whitelow told the security guard to stop. Whitelow told
        Humphrey that a scuffle between him and the security guard
        ensued, during which Whitelow pulled out a gun and shot the
        guard three times. Whitelow told Humphrey he ran from the
        scene and burned his clothes. Whitelow also told Humphrey that
        the only witnesses were his sister’s child’s father and a second
        security guard, and that “if he got rid of both of them, that that
Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 3 of 28
              [sic] was [sic] the only people that could convict him in this
              case.”


      Whitelow v. State, No. 45A05-1009-CR-586, 2011 WL 3568238 at *1-2 (Ind. Ct.

      App. Aug. 15, 2011), trans. denied (record citations omitted).


[4]   On October 7, 2008, the State charged Whitelow with murder, attempted

      murder, battery, and attempted battery. The State later alleged that Whitelow

      was a habitual offender. After the first trial ended in a mistrial, a second trial

      began in July 2010. At the conclusion of the retrial, the jury found Whitelow

      guilty of murder and attempted battery as a Class C felony. Whitelow waived

      his right to a jury trial on the habitual offender allegation, and the trial court

      found that Whitelow was a habitual offender. On August 20, 2010, the trial

      court sentenced Whitelow to consecutive sentences of fifty-five years for

      murder, four years for attempted battery, and thirty years for being a habitual

      offender, for a total of eighty-nine years of incarceration.


[5]   Whitelow appealed and claimed that the trial court erred in admitting into

      evidence Whitelow’s pre-trial statement to a witness, a witness’s lay opinion

      testimony, and evidence of Whitelow’s prior conviction for armed robbery.

      Whitelow also claimed that the State failed to present sufficient evidence to

      support his conviction for attempted battery. Whitelow, 2011 WL 3568238 at *1.

      We rejected these claims and affirmed Whitelow’s convictions. Id. at *5.


[6]   Whitelow then began his efforts to seek post-conviction relief. On June 1, 2012,

      Whitelow filed a pro se petition for post-conviction relief. On June 19, 2012, an

      Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 4 of 28
      attorney with the Indiana Public Defender’s office filed an appearance on

      Whitelow’s behalf. But on January 15, 2013, this public defender withdrew his

      appearance. Before a hearing was held on his initial petition for post-conviction

      relief, Whitelow filed a second petition on September 9, 2013. A copy of this

      petition was sent to the Indiana Public Defender’s office, which filed a notice of

      non-representation on October 16, 2013. On August 6, 2015, Whitelow

      requested permission to file an amended petition for post-conviction relief. The

      trial court granted the motion on September 14, 2015, and ordered the State to

      reply, which the State did on September 24, 2015.


[7]   Also on September 24, 2015, the trial court held an evidentiary hearing on

      Whitelow’s post-conviction petition. The only witness was Whitelow’s trial

      counsel. On December 13, 2015, the trial court entered findings of fact and

      conclusions of law denying Whitelow’s petition for post-conviction relief.

      Whitelow now appeals.


                           Post-Conviction Standard of Review
[8]   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). Post-conviction proceedings instead

      afford petitioners 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). The 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). Thus, on appeal from the denial of a petition for
      Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 5 of 28
       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.


[9]    The post-conviction court made specific findings of fact and conclusions of law

       in accordance with Indiana Post-Conviction Rule 1(6). On review, 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 on 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 for clear error. 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.


                          Ineffective Assistance of Trial Counsel
[10]   Our supreme court summarized the law regarding claims of ineffective

       assistance of trial counsel as follows:


               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

       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 6 of 28
               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,
               if it is easier to dispose of an ineffectiveness claim on the ground
               of lack of sufficient prejudice . . . that course should be followed.


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

       omitted).


            I. Whitelow’s Claims of Ineffective Assistance of Trial Counsel

                                A. Failure to Object to DNA Testimony

[11]   Whitelow presents several claims of ineffective assistance of trial counsel. The

       first of his claims is that his trial counsel was ineffective for not objecting to, and

       thereby excluding, the testimony of Rebecca Tobey (“Tobey”), a forensic

       scientist with the Indiana State Police who testified for the State with regard to

       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 7 of 28
       DNA evidence. In order to prove ineffective assistance of counsel due to the

       failure to object, Whitelow must prove that an objection would have been

       sustained if made and that he was prejudiced by the failure. Wrinkles v. State,

       749 N.E.2d 1179, 1192 (Ind. 2001) (citing Timberlake, 690 N.E.2d at 259).


[12]   Tobey testified at Whitelow’s trial with regard to DNA testing performed on

       two pieces of evidence found in an alley near the scene of the shooting: an

       athletic shoe and a .25 caliber pistol. Tobey testified that DNA found on the

       shoe and pistol belonged to the victim, Lowe, to a reasonable degree of

       scientific certainty, and that two other individuals, one being Whitelow, could

       not be excluded as contributing to the DNA found on the items. Whitelow

       argues that Tobey’s DNA analysis used only two “loci” of DNA matching,

       rather than the “13 loci or no less than 10 required by the Federal Bureau of

       Investigations.” Appellant’s Br. at 15.


[13]   In support of his argument, Whitelow refers to an exhibit he submitted at the

       post-conviction hearing which consists of a printout describing the federal

       CODIS database. CODIS is an acronym for the FBI’s Combined DNA

       Indexing System, which was put into service in the late 1990s. Quinn v. State, 45

       N.E.3d 39, 43 (Ind. Ct. App. 2015). “CODIS is a nationwide DNA database

       and has sub-databases for each state. DNA profiles are stored in CODIS, and

       law enforcement agencies can compare DNA profiles generated from pieces of

       evidence against the DNA profiles in CODIS to find a match.” Id. Indiana

       joined CODIS in 1996, Patterson v. State, 742 N.E.2d 4, 10 (Ind. Ct. App. 2000),



       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 8 of 28
       clarified on reh’g 744 N.E.2d 945 (2001), and started submitting DNA profiles to

       CODIS in 2000. Quinn, 45 N.E.3d at 43.


[14]   Whitelow appears to argue that the DNA samples taken from the shoe and

       pistol did not qualify for inclusion in the CODIS database, and that they were

       therefore inadmissible. But Whitelow cites no authority supporting the position

       that DNA evidence is inadmissible if it fails to meet the qualifications for

       inclusion to CODIS. His argument that his trial counsel was ineffective for

       failing to object to this evidence therefore fails.1


                                B. Failure to Object to Photographic Array

[15]   Whitelow next argues that his trial counsel was ineffective for failing to object

       to evidence regarding a photographic array from which a witness, Roberto

       Martinez (“Martinez”), identified him as the shooter. Whitelow claims that the

       photographic array was unduly suggestive and that Martinez’s identification of

       him from the array should not have been admitted. In addressing this claim, it

       is noteworthy that the array Whitelow now claims was unduly suggestive was

       not admitted into evidence at his trial. He claims that the array was unduly




       1
         In his Appellant’s Brief, Whitelow also argues that his trial counsel should have objected to Ms. Tobey’s
       testimony based on Evidence Rule 702, which governs the admissibility of expert testimony. However,
       Whitelow never presented this claim in either his original or amended petition for post-conviction relief.
       “Issues not raised in the petition for post-conviction relief may not be raised for the first time on post-
       conviction appeal.” Koons v. State, 771 N.E.2d 685, 691 (Ind. Ct. App. 2002), trans. denied (citing Ind. Post-
       Conviction Rule 1(8); Allen v. State, 749 N.E.2d 1158 (Ind. 2001)). The failure to raise an alleged error in the
       petition waives the right to raise that issue on appeal. Accordingly, Whitelow’s argument regarding Evidence
       Rule 702 is waived. See id.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017             Page 9 of 28
       suggestive and tainted Martinez’s identification to the extent that Martinez

       should not have been allowed to identify him.


[16]   The only photographic array in the record before us is one that was admitted at

       Whitelow’s trial and used by a witness to identify Darnell Jones, not Whitelow.

       At the post-conviction hearing, Whitelow referred to another photographic

       array, and apparently showed his trial counsel a photocopy of this array.

       However, as noted by the post-conviction court, Whitelow never admitted this

       array into evidence at the post-conviction hearing. Because Whitelow failed to

       admit evidence supporting his claim regarding the photographic array, the trial

       court did not err in concluding that Whitelow failed to meet his burden of proof

       with regard to this allegation of ineffective assistance.


[17]   Even if Whitelow had admitted the photographic array into evidence, and

       assuming that this array was unduly suggestive, there is nothing in the record to

       support Whitelow’s argument that this array tainted Martinez’s identification of

       Whitelow to the extent that the trial court would have suppressed Martinez’s

       identification testimony.


[18]   A witness who participates in an improper pre-trial identification may still

       identify the accused in court if the totality of the circumstances clearly shows

       that the witness has a basis for the in-court identification that is independent of

       the improper pre-trial identification. Jones v. State, 749 N.E.2d 575, 581 (Ind. Ct.

       App. 2001) (citing Young v. State, 700 N.E.2d 1143, 1146 (Ind. 1998)), trans.

       denied. The non-exhaustive list of factors to be considered in determining


       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 10 of 28
       whether an independent basis exists include: (1) the amount of time the witness

       was in the presence of the perpetrator; (2) the distance between the witness and

       the perpetrator; (3) the lighting conditions at the time; (4) the witness’s degree

       of attention to the perpetrator; (5) the witness’s capacity for observation; (6) the

       witness’s opportunity to perceive particular characteristics of the perpetrator; (7)

       the accuracy of any prior description of the perpetrator by the witness; (8) the

       witness’s level of certainty at the pre-trial identification; and (9) the length of

       time between the crime and the identification. Id.


[19]   Whitelow’s evidence before the post-conviction court addressed none of these

       factors, nor does his argument on appeal address them. He simply assumes that,

       if the photographic array was unduly suggestive, Martinez’s identification

       would necessarily have been suppressed had his counsel objected to it. This is

       not the case. Suffice it to say that Whitelow has not demonstrated that his trial

       counsel was ineffective for failing to object to Martinez’s in-court identification.


          C. Failure to Move for a Mistrial Based on Allegedly Perjured Testimony

[20]   Whitelow next contends that his trial counsel was ineffective for failing to move

       for a mistrial based on the State’s alleged subornation of perjury by various

       witnesses. Although Whitelow frames his argument as the failure to move for a

       mistrial, he also claims that his trial counsel was ineffective for failing to

       impeach various witnesses based on their allegedly perjured testimony.


[21]   As noted by the post-conviction court, Whitelow’s examples of “perjury” are

       simply instances of witness inconsistency. Perjury is a crime defined as making


       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 11 of 28
       a false, material statement under oath or affirmation, knowing the statement to

       be false or not believing it to be true, or knowingly making two or more

       material statements in a proceeding before a court or grand jury which are

       inconsistent to such a degree that one of them is necessarily false. Ind. Code §

       35-44.1-2-1(a). It has long been held that that inconsistency alone is not enough

       to prove perjury. Daniels v. State, 658 N.E.2d 121, 123 (Ind. Ct. App. 1995).

       Furthermore, it is up to the jury to decide who is telling the truth. See Wallace v.

       State, 474 N.E.2d 1006, 1008 (Ind. 1985) (holding that State was under no duty

       to prevent testimony of witness who gave testimony contradicting another

       witness or force the witness to admit that he was lying, and that resolution of

       inconsistencies between witness’s deposition and trial testimony which were

       brought out on cross-examination were for the jury to resolve). The remedy for

       knowingly false testimony is a charge of perjury, not exclusion of the evidence.


       1. Keith Berry’s Testimony

[22]   Whitelow argues that witness Keith Berry (“Berry”) gave perjured testimony.

       Specifically, he claims that Berry lied when he testified at trial that he saw

       Whitelow shoot Lowe, the victim, in the head. Whitelow’s trial counsel cross-

       examined Berry’s testimony and confronted him with his prior deposition

       testimony in which Berry testified that he did not know where Lowe had been

       shot. Berry agreed with this and admitted that he did not actually see where

       Lowe had been shot. Whitelow now claims that this amounts to perjury. We

       disagree.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 12 of 28
[23]   At most, Berry’s testimony was inconsistent with this prior deposition

       testimony. And when confronted with this inconsistency, Berry admitted that

       he did not actually know where Lowe had been shot. Moreover, as noted by the

       State, the medical evidence presented at the trial clearly shows that Lowe was,

       in fact, shot in the head.


[24]   Whitelow also claims that Berry perjured himself when he testified that he saw

       Whitelow with a handgun. Berry initially testified that he saw “a gentleman

       with a gun pointing in the direction” of where Lowe was arguing with the bar

       patrons. Trial Tr. p. 140. He also testified that, after he and Lowe chased after

       the shooter, the shooter “was up against the fence in the alley and pointed the

       gun and shot [Lowe] in the head.” Id. at 142. When asked what the weapon

       looked like, Berry testified, “It was black, very small, fit in like the palm of his

       hand.” Id. at 146.


[25]   On cross-examination, Berry testified that, when the shooter fired the initial

       shots, he did not actually see the weapon: “I’m sure it was too small. He was

       pointing in that direction. I technically never saw a gun, no.” Trial Tr. p. 152–

       53. From this, it is apparent that although Berry saw Whitelow raise his arm

       and fire the gun, he never actually saw the weapon itself.


[26]   Berry’s testimony may have been inconsistent with regard to whether he saw

       the weapon, but this does not make his testimony perjury. Instead, his

       testimony contained inconsistencies that were brought to the jury’s attention by

       the effective cross-examination of Whitelow’s trial counsel, and there is no


       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 13 of 28
       indication that Berry knowingly testified falsely as is required for his testimony

       to constitute perjury.


[27]   The same is true for Whitelow’s argument that Berry perjured himself by

       testifying that he did not see anyone else with a gun on the night of the

       shooting. Whitelow notes that Berry admitted on cross-examination that he

       heard someone involved in the initial argument in the parking lot state, “I’m

       going to get my gun and shoot your asses.” Trial Tr. p. 154. We fail to see how

       this contradicts Berry’s other testimony, and even if it did, it would amount to

       little more than an inconsistency, not perjury.


[28]   Whitelow also claims that Berry’s testimony regarding the weapon was perjury

       because he told the police that he saw a man in a white shirt holding a gun. But

       Berry testified that he never made such a statement to the police and that the

       police report recording this statement was in error. Yet again, this inconsistency

       was little more than a matter of credibility that was for the jury to resolve. It

       does not establish that Berry’s testimony was knowingly false.


       2. Rodreon Jones’s Testimony

[29]   Whitelow also contends that Rodreon Jones (“Jones”), his ex-girlfriend,

       testified falsely to seeing Whitelow shoot a silver handgun during her

       deposition, but testified during trial that she did not see the gun. First, if, as

       Whitelow suggests, Jones testified truthfully at Whitelow’s trial but falsely

       during her deposition, we fail to see how he was harmed. But more




       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 14 of 28
       importantly, viewing Jones’s testimony in context reveals little to no

       inconsistency between her testimony during the deposition and at trial.


[30]   Jones testified during her deposition that she saw something shiny in

       Whitelow’s hand and agreed with counsel’s description that the portion of the

       gun she saw was “chrome.” Trial Tr. p. 329–30. At trial, however, Jones

       testified as follows:


               Q.      Okay. Did you see the gun that he had?
               A.      I just saw fire. I didn’t really --
               Q.      You didn’t see the gun?
               A.      I mean, probably some shiny, but when you see fire,
                       what’s your first instinct, not to move or anything and -- I
                       don’t know. I seen fire. I’ve seen fire and I’ve seen
                       gunshots.
               Q.      Okay. So you don’t know. You just saw fire, you did not
                       see the gun; is that correct?
               A.      Something had to have been in his hand. You’re not
                       shooting firecrackers out in the parking lot.

       Trial Tr. p. 328.


[31]   This testimony is not terribly inconsistent with Jones’s deposition testimony,

       where she stated that she saw something shiny in Whitelow’s hand. Coupled

       with the fact that she consistently stated that she saw something fire from

       Whitelow’s hand, it is apparent that Jones saw some portion of a metallic object

       in Whitelow’s hand even if she did not see the entire gun. Yet again, this does

       not establish that Jones testified falsely, much less that she did so knowingly.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 15 of 28
       3. Roberto Martinez’s Testimony

[32]   Whitelow also claims that witness Roberto Martinez (“Martinez”) committed

       perjury. Again, this argument is without merit. Martinez testified in his

       deposition that Lowe had to have been hit “in the chest . . . well, in the front of

       the body, the front body part,” and later stated “[i]f it didn’t hit him [Lowe] in

       the gut, it hit him in the chest.” Trial Tr. pp. 523–25. At trial, however,

       Martinez testified on cross-examination as follows:


               Q.      And you saw [Whitelow] pull the gun out and shoot him
                       where?
               A.      In this front part. (Indicating).
               Q.      Well, you had a good vantage point; right?
               A.      Right.
               Q.      Could you see if he shot [Lowe] in the face, if he shot him
                       in the chest?
               A.      Yeah, toward the head part.
               Q.      So you think he shot him in the head?
               A.      Right.


       Trial Tr. p. 477.

[33]   Whitelow also complains that Martinez testified that he could not remember

       seeing anyone else with a gun on the night of the shooting, but during his

       deposition he testified that others present at the bar that night, including a man

       wearing a white shirt, had guns. According to a police report, Martinez also

       told the police that someone other than Whitelow fired two or three other shots



       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 16 of 28
       into Lowe as he lay in the alley. But during cross-examination at the trial,

       Martinez could not remember this.


[34]   Yet again, all Whitelow has pointed out are inconsistencies between Martinez’s

       prior statements and his testimony at trial. Whitelow has presented no evidence

       that would have required the post-conviction court to conclude that Martinez

       knowingly lied during his testimony.


       4. Brandon Humphrey’s Testimony

[35]   The last witness Whitelow now claims committed perjury is Brandon

       Humphrey (“Humphrey”). During Humphrey’s deposition, he testified that he

       had cousins in Hammond, Indiana, and he “got made aware of the story that

       was going around.” Trial Tr. p. 1046. At trial, Humphrey testified that he had

       “heard about the shooting, but I didn’t really know that [Whitelow] was

       involved.” Id. at 1044. These two statements are not in conflict. And even if

       they were, Whitelow has provided no evidence that Humphrey’s trial testimony

       was knowingly false.


[36]   In short, Whitelow merely notes inconsistencies in the testimony of several

       witnesses. These inconsistencies were highlighted by the effective cross-

       examination of the very trial counsel Whitelow now claims was ineffective. But

       Whitelow has presented no evidence to support his claim that these witnesses

       knowingly provided false testimony. Because there is no evidence of perjury,

       Whitelow’s trial counsel was not ineffective for failing to move for a mistrial

       based on this alleged perjury.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 17 of 28
                                            D. Failure to Impeach

[37]   Whitelow next claims that his trial counsel was ineffective for failing to

       impeach certain witnesses on specific matters. He claims that his counsel was

       ineffective for failing to impeach the testimony of Berry and Martinez, both of

       whom testified that Whitelow shot Lowe in the head. According to Whitelow,

       Berry and Martinez should have been impeached with an autopsy diagram,

       which Whitelow claims “clearly shows that Mr. Lowe was never shot in the

       head.” Appellant’s Br. at 25. This argument is specious.


[38]   For one, Post-Conviction Exhibit 6, which Whitelow claims is the autopsy

       diagram, is not in the materials provided to us on appeal. Trial Exhibit 6 is

       simply a photograph of the bar where the shooting took place. Trial Exhibit 106

       is an enlargement of a portion of Lowe’s autopsy diagram. The forensic

       pathologist testified that the autopsy revealed a gunshot entrance and exit

       wound on the top of Lowe’s head. Indeed, there are photographs in the record

       that graphically and explicitly show the gunshot wounds on Lowe’s head.

       Attempting to impeach Berry or Martinez’s testimony by claiming that the

       evidence did not show that Lowe had been shot in the head would have been

       more than futile—it would have been foolish.


[39]   Whitelow similarly argues that his counsel should have impeached Humphrey

       with the autopsy evidence. Humphrey, however, did not testify that he saw

       Whitelow shoot Lowe. He simply testified that Whitelow told him that he had

       shot Lowe in the face three times. Confronting Humphrey with evidence that

       Lowe had been shot in the head only once would not have impeached the
       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 18 of 28
       credibility of Humphrey’s testimony, as Whitelow may have simply lied to

       Humphrey with regard to how many times he shot Lowe. And again, the

       autopsy evidence simply confirms that Lowe was shot in the head. We cannot

       say that Whitelow’s trial counsel was ineffective for failing to reiterate this fact

       to the jury in an attempt to impeach Humphrey’s credibility.


[40]   Whitelow also claims that his trial counsel should have impeached the

       testimony of Jones with security camera footage that he baldly claims would

       have shown that her testimony was false. The post-conviction court reviewed

       the security camera recording and concluded:


               The surveillance footage is of such poor definition and quality
               that one cannot distinguish any specific actions by individuals
               other than blurry images of movement. Car lights flash on and
               off; people walk in and out of camera view and at no point can
               this court see the shooting at issue within the frame of the
               surveillance video. Whitelow presents no evidence of whether
               Ms. Jones is even in the frame of the area of the parking lot
               which is captured in the video. As such, the CD evidence neither
               supports nor refutes Ms. Jones’[s] description of what occurred at
               McTavern’s.


       Appellant’s App., Vol. 2, p. 30.


[41]   Whitelow in no way explains how Jones’s testimony was contradicted by the

       video recording. As such, we are in no position to question the post-conviction

       court’s conclusion that Whitelow’s trial counsel was not ineffective for failing to

       impeach Jones’s testimony with this video.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 19 of 28
                               E. Failing to Request a Change of Venue

[42]   Whitelow also argues that his trial counsel was ineffective for failing to request

       a change of venue based on his allegation of pre-trial publicity. As our supreme

       court explained in Ward v. State:


               At the heart of the decision on a motion for change of venue is
               the right to an impartial jury. This right derives from the Sixth
               Amendment to the United States Constitution, as applied to the
               States by the Fourteenth Amendment, as well as Article One,
               Section Thirteen of the Indiana Constitution. A fair trial in a fair
               tribunal is a basic requirement of due process. A juror’s verdict
               must be impartial regardless of the heinousness of the crime
               charged, the apparent guilt of the offender or the station in life
               which he occupies. In essence the right to jury trial guarantees to
               the criminally accused a fair trial by a panel of impartial,
               indifferent jurors.


       810 N.E.2d 1042, 1048–49 (Ind. 2004) (citations and internal quotations

       omitted).


[43]   In seeking a change of venue, a defendant must demonstrate the existence of

       two distinct elements: (1) prejudicial pretrial publicity and (2) the inability of

       jurors to render an impartial verdict. Id. at 1049 (citing Specht v. State, 734

       N.E.2d 239, 241 (Ind. 2000)). “Prejudicial pretrial publicity” means pretrial

       publicity that contains inflammatory material that would not be admissible at

       the defendant’s trial or contains misstatements or distortions of the evidence

       given at trial. Id. (citing Burdine v. State, 515 N.E.2d 1085, 1092 (Ind. 1987)).




       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 20 of 28
[44]   Here, of course, we must also view Whitelow’s claim through the lens of his

       claim of ineffective assistance. That is, it was Whitelow’s burden to establish

       that his trial counsel’s decision not to seek a change of venue fell below an

       objective standard of reasonableness, and he must show that, but for this

       decision, the result of the proceeding would have been different. See Timberlake,

       753 N.E.2d at 603.


[45]   Whitelow argues that the jury was exposed to “inflammatory” publicity prior to

       his trial. But the only evidence he presented to support his contention was the

       testimony of his trial counsel, who stated that Whitelow’s case had “a little

       more publicity” than a typical case and that he agreed that jurors “heard or had

       some knowledge about the case.” Post-Conviction Tr. pp. 32–33. This falls far

       short of establishing either element required of a defendant to entitle him to a

       change of venue. Without any evidence to support Whitelow’s claim, the post-

       conviction court properly concluded that Whitelow’s trial counsel was not

       ineffective for failing to move for a change of venue.


                                  F. Failure to Hire an Expert Witness

[46]   Whitelow next argues that his trial counsel was ineffective for failing to seek

       funds to hire an expert witness. A trial court is not required to appoint any

       expert that the defendant believes may be helpful, and the defendant bears the

       burden of demonstrating the need for the appointment, specifying precisely how

       he would benefit from the requested services. Watson v. State, 972 N.E.2d 378,

       385 (Ind. Ct. App. 2012). Although there is no exhaustive list of considerations,

       the trial court’s inquiry should address whether the services of the expert are
       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 21 of 28
       necessary to assure an adequate defense and whether the defendant precisely

       specifies how he would benefit from the requested expert services. The factors

       the court should consider in making such a determination include:


               (1) whether the services would bear on an issue generally
               regarded to be within the common experience of the average
               person, or on one for which an expert opinion would be
               necessary; (2) whether the requested expert services could
               nonetheless be performed by counsel; (3) whether the proposed
               expert could demonstrate that which the defendant desires from
               the expert; (4) whether the purpose for the expert appears to be
               only exploratory; (5) whether the expert services will go toward
               answering a substantial question in the case or simply an
               ancillary one; (6) the seriousness of the charge; (7) whether the
               State is relying upon an expert and expending substantial
               resources on the case; (8) whether a defendant with monetary
               resources would choose to hire such an expert; (9) the costs of the
               expert services; (10) the timeliness of the request for the expert
               and whether it was made in good faith; and (11) whether there is
               cumulative evidence of the defendant’s guilt.


       Id. Even where there are factors militating toward appointment of an expert—

       such as the services would have borne upon an issue outside the common

       experience of the average person, and analysis is outside the scope of the typical

       attorney’s services—the factors may still be insufficient to require the trial court

       to approve the hiring of an expert at public expense. Id.


[47]   Here, Whitelow notes that the State presented the testimony of several expert

       witnesses and then summarily concludes that his trial counsel should have

       requested an expert witness. However, Whitelow does not explain why or how

       the trial court would have been required to appoint an expert even if one had
       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 22 of 28
       been requested. As such, we cannot say that the post-conviction court clearly

       erred in rejecting this claim of ineffective assistance of trial counsel.


       G. Failure to Properly Advise with Regard to Habitual Offender Enhancement

[48]   Whitelow next argues that his trial counsel was ineffective by allowing

       Whitelow to plead guilty to the habitual offender enhancement. Whitelow

       claims that his trial counsel misled him by informing him that if he did not

       plead guilty, he would receive the maximum possible thirty-year enhancement,

       but if he did plead guilty, he would not receive a thirty-year enhancement.


[49]   Because the trial court attached the habitual offender enhancement to

       Whitelow’s murder conviction, the trial court had no discretion but to impose a

       thirty-year habitual offender enhancement. See Ind. Code § 35-50-2-8(h)2

       (providing that the trial court shall sentence a person found to be habitual

       offender to “an additional fixed term that is not less than the advisory sentence

       for the underlying offense nor more than three (3) times the advisory sentence

       for the underlying offense. However, the additional sentence may not exceed

       thirty (30) years.”). The advisory sentence for murder was fifty-five years, but

       the habitual offender enhancement could not exceed thirty years. Thus, a

       habitual offender enhancement for a murder conviction must be thirty years.




       2
        We refer to the version of the habitual offender statute that was in effect at the time Whitelow committed
       his crimes. I.C. § 35-50-2-8 (2005).

       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017         Page 23 of 28
[50]   Whitelow’s claim appears to be based on a misstatement the trial court made at

       the sentencing hearing. Specifically, when pronouncing its sentence, the trial

       court initially stated that it was imposing a ten-year habitual offender

       enhancement. The prosecuting attorney then asked the court if the habitual

       offender enhancement was attached to the sentence for murder, to which the

       trial court responded, “Yes.” Sentencing Tr. p. 54. The prosecuting attorney

       then stated, “Well, then by statute, I think you have to sentence him to 30

       years.” Id. The trial court then realized its earlier misstatement and imposed the

       required thirty-year habitual offender enhancement. Id. The trial court’s written

       sentencing order reflects that the trial court entered a thirty-year habitual

       offender enhancement. Trial App., Vol. 2, p. 320.


[51]   We agree with the State that the trial court’s brief misstatement provides no

       support for Whitelow’s claim that his trial counsel misadvised him with regard

       to the habitual offender enhancement. Whitelow asked his trial counsel no

       questions regarding the advice he gave Whitelow with respect to pleading guilty

       to the habitual offender enhancement, nor did he present any other evidence or

       testimony supporting his claim that his trial counsel misadvised him. Because

       Whitelow presented no evidence to support his claim, the post-conviction court

       did not clearly err in rejecting it.


                                            H. Cumulative Error

[52]   Whitelow’s last claim of ineffective assistance of trial counsel is that the

       cumulative effect of his trial counsel’s errors requires us to reverse his

       convictions and grant him a new trial. Errors by counsel that are not
       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 24 of 28
       individually sufficient to prove ineffective representation may add up to

       ineffective assistance when viewed cumulatively. McCullough v. State, 973

       N.E.2d 62, 75 (Ind. Ct. App. 2012) (citing Pennycuff v. State, 745 N.E.2d 804,

       816–17 (Ind. 2001)), trans. denied. Here, however, Whitelow has not established

       that his trial counsel committed any errors. Thus, there are no errors to

       accumulate.


                        II. Ineffective Assistance of Appellate Counsel

[53]   Whitelow also claims that his appellate counsel was constitutionally ineffective

       for failing to present on direct appeal a claim that Whitelow’s sentence was

       improper. When we review claims of ineffective assistance of appellate counsel,

       we use the same standard applied to claims of ineffective assistance of trial

       counsel, i.e., 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. Manzano v. State, 12 N.E.3d

       321, 329 (Ind. Ct. App. 2014) (citing Harris v. State, 861 N.E.2d 1182, 1186

       (Ind. 2007)), trans. denied. To show that counsel was ineffective for failing to

       raise an issue on appeal, the defendant must overcome the strongest

       presumption of adequate assistance, and judicial scrutiny is highly deferential.

       Id. (citing Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006)).


[54]   To evaluate the performance prong when counsel failed to raise issues upon

       appeal, we apply the following test: (1) whether the unraised issues are

       significant and obvious from the face of the record and (2) whether the unraised
       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 25 of 28
       issues are “clearly stronger” than the raised issues. Id. If the analysis under this

       test demonstrates deficient performance, then we examine 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.” Id. at 329–30.


[55]   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 330. Indeed, our supreme court has warned that we

       “should be particularly sensitive to the need for separating the wheat from the

       chaff in appellate advocacy,” and we “should not find deficient performance

       when counsel’s choice of some issues over others was reasonable in light of the

       facts of the case and the precedent available to counsel when that choice was

       made.” Reed, 856 N.E.2d at 1196 (quoting Bieghler v. State, 690 N.E.2d 188, 194

       (Ind. 1997)).


[56]   Whitelow contends that his appellate counsel was ineffective for failing to

       challenge his sentence on direct appeal in several ways. First, he argues that the

       trial court abused its discretion by failing to include a reasonably detailed

       reason of circumstances as to why the court ordered Whitelow’s sentences to be

       services to be served consecutively. We disagree.


[57]   The trial court issued a written sentencing order which delineated three

       aggravating factors: (1) Whitelow’s criminal history; (2) that Whitelow was on

       parole at the time he committed the instant offenses; and (3) that Whitelow’s


       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 26 of 28
       “character, history of violent behavior, and his gang affiliation indicate [his]

       propensity to violence.” Trial App. p. 320. In order to impose consecutive

       sentences, the trial court must find at least one aggravating factor. Henderson v.

       State, 44 N.E.3d 811, 814 (Ind. Ct. App. 2015). Here, the trial court found three

       aggravating factors. We therefore cannot fault Whitelow’s appellate counsel for

       failing to present this meritless issue on direct appeal.


[58]   Whitelow also claims that his appellate counsel should have argued that

       Whitelow’s eighty-nine-year sentence was inappropriate in light of the nature of

       the offense and the character of the offender. However, he fails to explain in

       any detail precisely how his sentence is inappropriate. We therefore consider

       this argument to be waived. Waiver notwithstanding, Whitelow would not

       prevail. Whitelow was convicted of a senseless killing, and his character is

       demonstrated by his prior criminal history, which includes convictions for

       armed robbery, carrying a handgun without a license, and unlawful possession

       of a firearm. The pre-sentence investigation report also states that Whitelow

       was reported to have attacked another inmate while in jail. Whitelow was also

       sentenced for another murder at the same time as his sentencing on the instant

       offense. Under these facts and circumstances, the decision of Whitelow’s

       appellate counsel to not bring a claim of an inappropriate sentence did not

       constitute ineffective assistance of trial counsel.


                                                 Conclusion
[59]   The post-conviction court did not clearly err in rejecting Whitelow’s claims of

       ineffective assistance of trial and appellate counsel. Accordingly, we affirm the
       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 27 of 28
       judgment of the post-conviction court denying Whitelow’s petition for post-

       conviction relief.


[60]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-PC-129 | December 19, 2017   Page 28 of 28
