      MEMORANDUM DECISION
                                                                                 Nov 30 2015, 7:50 am
      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 establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT, PRO SE                                        ATTORNEY FOR APPELLEE
      Brent D. Sharp                                           Gregory F. Zoeller
      Wabash Valley Correctional Facility                      Attorney General of Indiana
      Carlisle, Indiana
                                                               Jodi Kathryn Stein
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Brent D. Sharp,                                         November 30, 2015

      Appellant-Petitioner,                                   Court of Appeals Case No.
                                                              18A02-1410-PC-728
              v.                                              Appeal from the Delaware Circuit
                                                              Court
      State of Indiana,                                       Trial Court Cause No.
                                                              18C02-1306-FA-10
      Appellee-Defendant.
                                                              The Honorable Kimberly Dowling,
                                                              Judge




      Pyle, Judge.


                                         Statement of the Case
[1]   Appellant/Petitioner, Brent D. Sharp (“Sharp”), appeals the trial court’s denial

      of his petition for post-conviction relief, in which he requested relief from his


      Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015      Page 1 of 28
      convictions for two counts of Class A felony burglary resulting in bodily injury

      and one count each of: Class B felony rape; Class D felony criminal

      confinement; Class A felony criminal deviate conduct; Class A felony child

      molesting; and Class C felony criminal confinement.


[2]   Sharp was convicted after DNA taken from the victims of the above offenses

      matched his DNA sample in Indiana’s DNA database. On direct appeal,

      Sharp’s appellate counsel contested the submission of Sharp’s DNA sample into

      the DNA database and argued that Sharp’s trial counsel had been ineffective for

      failing to object to the admission of the DNA sample evidence at trial. This

      Court held that Sharp was collaterally estopped from challenging the

      submission of the DNA sample because he had previously litigated the issue in

      another cause. For the same reason, we held that Sharp’s trial counsel was not

      ineffective for failing to object to the DNA evidence at trial.


[3]   Sharp, pro se, then filed a petition for post-conviction relief. In his petition, he

      argued that his appellate counsel was ineffective for failing to raise several

      additional claims of trial counsel ineffectiveness on appeal and for failing to

      present an issue competently. Sharp asserts that his appellate counsel should

      have raised that his trial counsel rendered ineffective assistance by failing to:

      (1) request a change of judge; (2) request a severance of the charges against

      Sharp; (3) object to the State’s questions about the Indiana DNA database and a

      witness’s reference to Sharp as a convicted offender; (4) object to the admission

      of evidence of Sharp’s DNA sample at trial; and (5) object to improper

      aggravating factors upon sentencing. Sharp also argued that his appellate

      Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 2 of 28
      counsel failed to present his ineffective assistance of trial counsel argument

      competently on appeal. The post-conviction court denied Sharp’s petition.


[4]   On appeal, Sharp argues that the post-conviction court erred in finding that he

      had received effective assistance on each of the above issues. Because we do

      not find that Sharp met his burden on post-conviction, we affirm the post-

      conviction court’s denial of his petition for post-conviction relief.


[5]   We affirm.


                                                     Issue
              Whether Sharp’s appellate counsel provided ineffective assistance.


                                                     Facts
[6]   We stated the facts underlying Sharp’s conviction in our opinion on his direct

      appeal as follows:

              In December 2002, Tyjuana Thompson was living in Muncie
              with her two daughters, fourteen-year-old J.L.[] and nine-year-
              old A.L. On the evening of December 13, Thompson left for
              work around 10:00 p.m. After J.L. went to bed approximately
              one-half hour later, she woke up at some point and felt a
              sensation on her leg. Looking at the doorway, J.L. noticed a
              man who she initially thought was her cousin, Christopher, who
              had been released from prison a few months earlier. Christopher
              also lived next door to Thompson. The man, who wore a tan
              coat and a ski mask that covered his face, was subsequently
              identified as Sharp. Sharp approached J.L. and began to choke
              her. When J.L. began to fight, Sharp choked her harder and
              smothered her face with a pillow. Sharp then removed J.L.’s


      Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 3 of 28
        shorts and underwear and inserted his penis into her vagina. At
        some point during the assault, J.L. lost consciousness.
        When J.L. awoke, she was lying on the floor, cross-legged, and
        her arms were bound with duct tape behind her back. Her mouth
        was also covered with tape, and she was wearing only a t-shirt.
        Eventually, J.L. crawled into her sister’s room, where A.L. was
        able to remove the duct tape. The girls then called Thompson at
        work and told her about the incident.
        The police were notified, and J.L. was transported to Ball
        Memorial Hospital in Muncie, where a sexual assault evidence
        examination was performed. During the examination of J.L.,
        Dr. Max Rudicel found evidence of forced penetration. Indiana
        State Police forensic scientist Karen Bruewer analyzed the
        evidence and discovered sperm on the vaginal and cervical slides
        and swabs, the external genital swabs, and the vaginal wash. She
        forwarded this evidence to the Indiana State Police in Lowell,
        where forensic DNA analyst Nicole Ihnat prepared DNA
        profiles. It was determined that J.L.’s cousin, Christopher, was
        eliminated as a contributor of the sperm. Moreover, an initial
        search in the Indiana DNA database produced no matches.
        On the evening of May 22, 2003, Jessica Woolums was
        babysitting for her six young cousins at a Muncie residence.
        After Jessica helped her seven-year-old cousin, C.W., do her
        homework, they fell asleep in the living room with the other
        children. At some point, a man wearing a bandana and winter
        hat entered the house, picked up C.W., and carried her to a back
        room of the residence. The man, who was subsequently
        identified as Sharp, asked C.W. how old she was. After C.W.
        replied that she was seven years old, Sharp, who was armed with
        a knife, removed C.W.’s clothing. He then choked C.W. to the
        point of unconsciousness. When she awoke, Sharp carried C.W.
        to the kitchen, where he inserted his penis into her anus and
        attempted to insert his penis into her vagina. Sharp then carried
        C.W. into the dining room where he again sexually assaulted
        her. Apparently, Jessica and the other children slept through this
        episode.
Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 4 of 28
        After Sharp left the residence, C.W. and Jessica went next door
        for help. The police were contacted, and C.W. was eventually
        transported to Ball Memorial Hospital, where two sexual assault
        evidence kits were taken. Dr. Rudicel observed that C.W. had
        been choked, and Dr. Lopiccolo noticed a tear to C.W.’s anus,
        evidence of forced penetration, and a white opaque cloudy
        material in C.W.’s rectum. Bruewer, the Indiana State Police
        forensic scientist, analyzed the evidence and discovered the
        presence of semen on both the rectal swab and the rectal smear
        slide.
        Prior to these incidents, Sharp had been convicted of burglary in
        1999, was sentenced to a three-year suspended sentence and was
        placed on probation until December 2, 2002, for that offense. In
        June 2003, Sharp’s probation officer filed a petition to revoke
        probation, alleging that Sharp had failed to meet various
        conditions of probation that had been imposed upon
        him. Although the probation officer was aware of Sharp’s
        violations when they occurred, the deputy prosecutor did not file
        the petition to revoke until June 2003, long after Sharp’s
        probation had ended. As a consequence, on August 21, 2003,
        Sharp moved to dismiss the petition on the grounds that it had
        not been timely filed. The trial court denied the motion on
        August 25, 2003, placed Sharp back on probation, and ordered
        Sharp to provide a DNA sample. Prior to his release from the
        jail, Sharp submitted a DNA sample that was subsequently
        entered into the State’s DNA database. Sharp provided the
        DNA sample in accordance with a nunc pro tunc order entered
        on September 16, 2003. This order stated that Sharp’s DNA
        sample should have been taken when he was convicted of
        burglary in 1999, and that his DNA should have already been
        included in the database.
        During the course of the investigation of the above incidents, the
        police department requested neighbors and family members of
        the victims to submit to voluntary DNA testing. Also, on
        September 12, 2003, a search was conducted in the DNA
        database, where it was determined that the DNA profile in J.L.’s

Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 5 of 28
        case matched the DNA of Sharp, whose sample had been entered
        into the database in accordance with the trial court’s order
        regarding the burglary offense and the probation revocation.
        Four days later, Nicole Ihnat prepared DNA profiles from the
        evidence that was gathered from the incident involving C.W.
        The DNA profile generated from the seminal material found on
        the rectal slide in C.W.’s case matched that of Sharp, who lived
        next door to C.W.
        Thereafter, on October 3, 2003, Sharp was charged with [Count
        1, Class A felony burglary resulting in bodily injury; Count 2,
        Class B felony rape; Count 3, Class D felony criminal
        confinement; Count 4, Class A felony burglary resulting in bodily
        injury; Count 5, Class A felony criminal deviate conduct; Count
        6, Class A felony child molesting; and Count 7, Class C felony
        criminal confinement.] He then filed a motion to suppress the
        DNA evidence, contending that the sample had been obtained in
        violation of the Fourth Amendment to the United States
        Constitution as well as Article 1, Section 11 of the Indiana
        Constitution. In ruling on Sharp’s motion, the trial court
        observed that Sharp’s DNA sample had been taken pursuant to
        the nunc pro tunc order that had been issued.
        Sharp then appealed the revocation of his probation in the
        burglary case, and we determined that the petition to revoke
        probation had not been timely filed because three of the bases
        that the State alleged to support the petition occurred after the
        probationary period had ended. See Sharp v. State, 807 N.E.2d
        765, 767 (Ind. Ct. App. 2004). In our opinion that was handed
        down on May 3, 2004, we observed that[:]
                Because the probation officer knew of the violations for
                which the trial court revoked Sharp’s probation but did not
                file a petition to revoke until seven months after Sharp’s
                probationary period ended, we find that the petition
                should have been dismissed as untimely.
        Id. at 768. We further found that Sharp’s challenge to the
        constitutionality of Indiana Code section 10–13–6–10, the statute

Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 6 of 28
        governing and creating Indiana’s DNA database, was waived
        because he did not make a proper objection in the trial court. Id.
        In this case, after a hearing on Sharp’s motion to suppress, the
        trial court denied the motion on November 16, 2004, and
        adopted the order that another trial court judge in Delaware
        County Circuit Court 3 had issued when Sharp presented the
        same issues regarding the admissibility of DNA evidence. In
        particular, the trial court in both cases determined that Sharp was
        collaterally estopped from relitigating the constitutionality of the
        taking of his DNA sample because that issue had already been
        litigated in the appeal from the probation revocation. Also, as
        the State pointed out in its response to Sharp’s motion to
        suppress:
                3. The Defendant appealed the seizure of his blood under
                Cause # 18D02–9902–CF–13. The Court of Appeals
                affirmed that portion of the trial court’s decision requiring
                Defendant to submit a blood sample. Sharp v. State, 807
                N.E.2d 765 ([Ind. Ct. App. 2004]). The Defendant had a
                full and fair opportunity to litigate the issue in that case.
                Any attempt, in this case, to attack the acquisition of
                Defendant’s blood sample out of 18D02–9902–CF–13 is
                prohibited by the doctrines of res judicata and collateral
                estoppel.
                4. Additionally, in the Delaware Circuit Court 3, State of
                Indiana v. Brent Sharp, 18C03–0310–FA–19, the
                [D]efendant filed a Motion to Suppress that is identical to
                the Motion filed in the case at bar. The Delaware Circuit
                Court 3 Court denied the [D]efendant’s motion. In the
                Circuit Court 3 case, the [D]efendant attempted to
                relitigate the same issues as raised in Delaware Circuit
                Court 2 and the Indiana Court of Appeals, just as he is
                attempting in the case at bar. The Delaware Circuit Court
                3 held that the doctrine of collateral estoppel prohibited
                the Defendant from relitigating.



Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 7 of 28
      Sharp v. State, 835 N.E.2d 1079, 1081-83 (Ind. Ct. App. 2005) (internal citations

      and footnotes omitted).


[7]   The trial court held a jury trial on the charges against Sharp on November 29,

      2004 through December 1, 2004. At the conclusion of the trial, the jury found

      Sharp guilty as charged. Then, in a hearing after the trial, the jury found the

      existence of thirty-eight (38) aggravating factors.


[8]   On December 23, 2004, the trial court held a sentencing hearing. It adopted

      five of the aggravating factors the jury had found into its sentencing order.

      These factors were: (1) the seriousness and number of Sharp’s prior crimes,

      which included a Class C felony conviction for burglary, two Class A

      misdemeanor convictions for residential entry, and six Class A misdemeanor

      convictions for check deception; (2) Sharp was “in need of correctional or

      rehabilitative treatment that [could] best be provided by commitment to a penal

      facility;” (3) one of the victims had been seven years old at the time the crime

      occurred; (4) Sharp had committed the offenses in the presence of or hearing of

      people that were less than eighteen years old—specifically, A.L. and C.W.’s

      younger sisters; and (5) Sharp’s crime had affected the public at large since he

      had chosen to enter strangers’ homes at night and had targeted weaker

      members of the community. (State’s Ex. 3 at 9). The trial court also found that

      there were two mitigating factors: (1) Sharp had some family support that

      could aid in his rehabilitation; and (2) incarceration might cause undue

      hardship on Sharp’s dependents. However, the trial court noted that it assigned

      the mitigating factors “minimal weight.” (State’s Ex. 3 at 9).

      Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 8 of 28
[9]    Based on the aggravators and mitigators, the trial court sentenced Sharp to: (1)

       fifty (50) years for his Class A felony burglary resulting in bodily injury

       conviction; (2) twenty (20) years for his Class B felony rape conviction; (3) three

       (3) years for his Class D felony criminal confinement conviction; (4) fifty (50)

       years for his Class A felony burglary resulting in bodily injury conviction; (5)

       fifty (50) years for his Class A felony criminal deviate conduct conviction; (6)

       fifty (50) years for his Class A felony child molesting conviction; and (7) eight

       (8) years for his Class C felony criminal confinement conviction. Except for

       Sharp’s two criminal confinement sentences, the trial court ordered his

       sentences to be served consecutively, for an aggregate executed sentence of two

       hundred twenty (220) years.


[10]   Thereafter, Sharp appealed his convictions. On appeal, he argued that the trial

       court should not have admitted his DNA evidence at trial. Sharp, 835 N.E.2d

       at 1084. He asserted that the DNA was inadmissible because the statute

       governing Indiana’s DNA database was unconstitutional and because the trial

       court did not have probable cause to order him to submit a DNA sample. Id.

       This Court found that Sharp had already disputed the constitutionality of

       requiring him to submit his DNA sample into the database when Sharp

       challenged the nunc pro tunc order requiring him to do so. Id. at 1084-85. As a

       result, we concluded that his argument was barred on the grounds of collateral

       estoppel. Id. at 1085. Nevertheless, we addressed the merits of Sharp’s

       argument and determined that his constitutional rights had not been violated

       because the compulsory collection of DNA samples from convicted offenders


       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 9 of 28
       for inclusion in Indiana’s DNA database fell within an exception to the Fourth

       Amendment’s privacy protections. Id.


[11]   Also on appeal, Sharp’s appellate counsel argued that “[d]efense counsel should

       have objected to the DNA evidence being used because it was taken in an

       untimely manner and not in accordance with [INDIANA CODE §] 10-13-6-5

       through [INDIANA CODE §] 10-13-6-10 and the recent decision of Sharp v. State,

       807 N.E.2d (Ind. App. 2004).” (Sharp’s Ex. A)1 (improper case citation in

       original). In other words, his appellate counsel argued that, because the court

       ordered Sharp to submit the sample at the same time it revoked Sharp’s

       probation and then the probation revocation was later found to be improper,

       Sharp’s trial counsel should have objected to the admission of the DNA

       evidence at trial here. This Court interpreted this argument as an ineffective

       assistance of trial counsel claim. Sharp, 835 N.E.2d at 1086. We held that,

       because Sharp had already been convicted of a felony requiring him to provide

       a DNA sample for the DNA database at the time of his probation revocation,

       the order requiring him to do so was not related to the improper probation

       revocation. Id. As a result, we held that his trial counsel was not ineffective for

       failing to challenge the DNA sample. Id. at 1087.




       1
         This passage is from Sharp’s Appellant’s Brief. Although the exhibit volume does not reflect that the
       Appellant’s Brief was included as part of Sharp’s Exhibit A, the transcript of the post-conviction hearing
       indicates that it was admitted as part of Exhibit A.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015           Page 10 of 28
[12]   On May 13, 2013, Sharp filed a pro se amended petition for post-conviction

       relief.2 In this petition, he alleged that his appellate counsel had been ineffective

       for failing to raise certain issues on appeal and for failing to competently present

       his ineffective assistance of trial counsel claim on appeal. On January 9, 2014,

       the post-conviction court held a hearing, at which Sharp’s appellate and trial

       attorneys testified. Then, on September 25, 2014, the post-conviction court

       issued findings of fact and conclusions thereon denying Sharp post-conviction

       relief. Sharp now appeals. We will provide additional facts as necessary.


                                                       Decision
[13]   On appeal, Sharp argues that the post-conviction court erred in denying his

       petition for post-conviction relief. He asserts that the court should have granted

       him relief because his appellate counsel provided ineffective assistance.

       Specifically, he claims that his appellate counsel: (1) failed to raise certain

       issues on appeal, including that Sharp’s trial counsel was ineffective because he

       did not: (a) request a change of judge; (b) request a severance of the charges

       against him; (c) object to the State’s questions about the Indiana DNA database

       and a witness’s reference to Sharp’s status as a convicted offender, both of

       which he claims notified the jury of his status as a convicted offender; (d) object

       to the admission of evidence regarding Sharp’s DNA sample at trial; (e) object




       2
         Sharp filed his original petition on November 2, 2012. In that petition, he alleged that his trial counsel had
       been ineffective. The State filed a motion for summary disposition, arguing that Sharp had already litigated
       the effectiveness of his trial counsel in his direct appeal. The post-conviction court granted the State’s motion
       but granted Sharp leave to amend his petition.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015            Page 11 of 28
       to improper aggravating factors upon sentencing; and (2) failed to competently

       argue on appeal that Sharp’s trial counsel was ineffective for failing to object to

       the admission of the evidence of his DNA sample.


[14]   First, we must note that post-conviction proceedings afford petitioners a limited

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

       direct appeal. Pannell v. State, 36 N.E.3d 477, 485 (Ind. Ct. App. 2015). Such

       proceedings are not “super appeals” through which convicted persons can raise

       issues that they failed to raise at trial or on direct appeal. Id. The proceedings

       are civil in nature, and petitioners bear the burden of proving their grounds for

       relief by a preponderance of the evidence. Id.


[15]   When a petitioner appeals a denial of post-conviction relief, he appeals from a

       negative judgment. Id. Consequently, we may not reverse the judgment of the

       post-conviction court unless the petitioner demonstrates that the evidence “‘as a

       whole, leads unerringly and unmistakably to a decision opposite that reached

       by the post-conviction court.’” Id. (quoting Allen v. State, 791 N.E.2d 748, 752

       (Ind. Ct. App. 2003), trans. denied). We accept the post-conviction court’s

       findings of fact unless they are clearly erroneous, but we do not give deference

       to the court’s conclusions of law. Id.


[16]   Further, we must note that, although Sharp is proceeding pro se and lacks legal

       training, we hold pro se litigants to the same standards as trained counsel. Id.


[17]   A defendant claiming a violation of the right to effective assistance of trial or

       appellate counsel must establish the two components set forth in Strickland v.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 12 of 28
       Washington, 466 U.S. 668 (1984). Timberlake v. State, 753 N.E.2d 591, 603 (Ind.

       2001); Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006) (“The standard of

       review for a claim of ineffective assistance of appellate counsel is the same as

       for trial counsel . . . .”). First, the defendant must show that counsel’s

       performance was deficient. Timberlake, 753 N.E.2d at 603. 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 to the defendant by the Sixth Amendment.

       Id. Second, the defendant must show that the deficient performance prejudiced

       his defense. Id. 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. Id. A reasonable probability is a

       probability sufficient to undermine confidence in the outcome. Id.


[18]   Counsel is afforded considerable discretion in choosing strategy and tactics, and

       we will accord those decisions deference. Id. A strong presumption arises that

       counsel rendered adequate assistance and made all significant decisions in the

       exercise of reasonable professional judgment. Id. 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. Id. Isolated mistakes, poor strategy, inexperience, and instances of bad

       judgment do not necessarily render representation ineffective. Id. The two

       prongs of the Strickland test are separate and independent inquiries. Id. Thus,

       “‘[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of

       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 13 of 28
       sufficient prejudice . . . that course should be followed.’” Id. (quoting Williams

       v. State, 706 N.E.2d 149, 154 (Ind. 1999)).


[19]   Our supreme court has recognized three categories of alleged appellate counsel

       ineffectiveness: (1) denying access to an appeal, (2) failing to raise issues, and

       (3) failing to present issues competently. Id. at 604 (citing Bieghler v. State, 690

       N.E.2d 188, 193-95 (Ind. 1997), reh’g denied, cert. denied). When a claim of

       ineffective assistance is directed at appellate counsel for failing to fully and

       properly raise and support a claim of ineffective assistance of trial counsel, a

       defendant faces a compound burden on post-conviction. Id. The post-

       conviction court must conclude that appellate counsel’s performance was

       deficient and that, but for the deficiency of appellate counsel, trial counsel’s

       performance would have been found deficient and prejudicial. Id.


[20]   Here, Sharp challenges his appellate counsel’s performance under two of the

       above categories. First, he argues that his appellate counsel was ineffective for

       failing to raise several issues, and, second, he argues that his appellate counsel

       was ineffective for failing to present an issue competently. We will address

       each of these arguments in turn.


       1. Failure to Raise Issues

[21]   Sharp asserts that his appellate counsel was ineffective because he failed to raise

       several issues that, according to Sharp, were better than the issues his counsel

       did raise. Specifically, Sharp claims that his appellate counsel should have

       argued that his trial counsel was ineffective for failing to: (1) request a change


       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 14 of 28
       of judge; (2) request severance of his charges; (3) object to the State’s questions

       about the DNA database and a witness’s reference to Sharp as a convicted

       offender; (4) object to the admission of evidence regarding Sharp’s DNA

       sample at trial; and (5) object to improper aggravators during sentencing.


[22]   In a claim that appellate counsel provided ineffective assistance regarding the

       selection and presentation of issues, the defendant must overcome the strongest

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

       Ben-Yisrayl, 738 N.E.2d 253, 260-61. In such cases, we apply a two-part test.

       Timberlake, 753 N.E.2d at 605-06. First, we evaluate whether the unraised

       issues are significant and obvious from the face of the record and, second,

       whether the unraised issues are “‘clearly stronger’” than the raised issues. Id.

       (quoting Bieghler, 690 N.E.2d at 198). Otherwise stated, 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.

       (quoting Ben-Yisrayl, 738 N.E.2d at 261). Because the role and function of

       appellate counsel on direct appeal is different from that of the defendant’s post-

       conviction counsel, we do not measure the appellate counsel’s performance by

       information unknown to the appellate counsel but later developed after the

       appeal by the post-conviction counsel. Ben-Yisrayl, 738 N.E.2d at 261.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 15 of 28
           A. Change of Judge

[23]   First, Sharp argues that his appellate counsel should have argued that his trial

       counsel was ineffective for failing to move for a change of judge. During a pre-

       trial conference, Sharp’s trial judge informed the parties:


                [T]he victim whose first initial is J, I just recently found out that
                my daughter is acquainted with her, and I will have [defense
                counsel] explain. I told counsel back in my office, explain[ed] to
                him the nature of the acquaintance. So, if there’s a need for that
                to be transferred, I don’t see any reason that couldn’t just be
                transferred to Circuit Court 3 to go with the other cases.


       (Trial Tr. 21-22).3 The trial judge told Sharp’s trial counsel to talk with Sharp,

       who was also at the pre-trial conference, about the issue and to tell her whether

       Sharp wanted her to transfer the case. There is no record that Sharp’s counsel

       thereafter told the judge that Sharp did not want to transfer the case. Now,

       Sharp contends that the trial judge’s pre-trial admission demonstrated that the

       judge was biased, and he correspondingly argues that his appellate counsel

       should have asserted that his trial counsel was ineffective for failing to file a

       motion for a change of judge.




       3
         In order to distinguish between Sharp’s trial transcript and post-conviction hearing transcript, we will refer
       to the trial transcript as “Trial Tr.” and the post-conviction hearing transcript as “P-C Tr.” Similarly, we will
       refer to the Appendix from Sharp’s direct appeal as “Appellate App.” and the Appendix from his post-
       conviction hearing as “App.”

       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015            Page 16 of 28
[24]   During his post-conviction hearing, Sharp asked his trial counsel whether he

       had given any consideration to asking the trial judge to recuse herself, and his

       trial counsel responded:


               I don’t recall specifically what my thought process was then but
               with using the term “acquaintance[,]” it would have occurred to
               me that, that’s not unusual that there would be some other
               knowledge of the next Judge that might know an alleged victim.
               It’s just the way it works. So someone being an acquaintance
               and not even her but her daughter. I’m sort of guessing that it
               didn’t seem to me at the time that, that would be significant or
               that would be an issue.


       (P-C Tr. 31).


[25]   As we stated above, in a claim such as Sharp’s, a petitioner must prove that if it

       were not for his appellate counsel’s performance, his trial counsel’s

       performance would have been found deficient and prejudicial. Timberlake, 753

       N.E.2d at 604. We conclude that Sharp’s appellate counsel was not ineffective

       because, regardless of his performance, Sharp’s trial counsel’s performance

       would not have been found deficient and prejudicial on the grounds that he

       failed to request a change of judge.


[26]   Specifically, it is apparent that his trial counsel’s actions were a matter of trial

       strategy. When representing a defendant, “[c]ounsel is given ‘significant

       deference in choosing a strategy which, at the time and under the

       circumstances, he or she deems best.’” Benefield v. State, 945 N.E.2d 791, 799

       (Ind. Ct. App. 2011) (quoting Potter v. State, 684 N.E.2d 1127, 1133 (Ind.


       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 17 of 28
       1997)). “‘A reviewing court will not second-guess the propriety of trial

       counsel’s tactics.’” Id. (quoting Davidson v. State, 763 N.E.2d 441, 446 (Ind.

       2002), reh’g denied, cert. denied). “‘[T]rial strategy is not subject to attack through

       an ineffective assistance of counsel claim, unless the strategy is so deficient or

       unreasonable as to fall outside of the objective standard of reasonableness.’” Id.

       (quoting Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998)). “‘This is so even

       when such choices may be subject to criticism or the choice ultimately prove[s]

       detrimental to the defendant.’” Id. (quoting Autrey, 700 N.E.2d at 1141).


[27]   Based on Sharp’s trial counsel’s testimony at the post-conviction hearing, it is

       clear that his trial counsel believed that it was equally likely a different judge

       might know one of the victims and also that Sharp’s trial judge’s daughter’s

       acquaintance with the victim was so attenuated that it would not bias her

       determination. Therefore, his trial counsel’s decision was a matter of trial

       strategy and did not constitute deficient performance. Further, we note that

       Sharp has not pointed to any specific incidences indicating that the trial judge

       might have been actually biased. He merely raises the hypothetical argument

       that she could have been biased against him. In light of these factors, we

       conclude that Sharp’s appellate attorney was not ineffective for failing to raise a

       claim of ineffective assistance of trial counsel for failing to move for a change of

       judge. Thus, the post-conviction court did not err in denying post-conviction

       relief on that claim.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 18 of 28
           B. Severance of the Charges

[28]   Next, Sharp argues that his appellate counsel was ineffective because he did not

       argue that Sharp’s trial counsel was ineffective for failing to file a motion to

       sever Sharp’s charges. Sharp notes that the charges against him involved two

       separate girls and two separate incidents that were not closely related in time.

       As a result, he claims that he had a right to severance and that the results of his

       trial might have been different if he had been granted a severance.


[29]   Again, we conclude that Sharp’s trial counsel’s performance would not have

       been found deficient, regardless of his appellate counsel’s performance. At the

       post-conviction hearing, Sharp’s trial counsel said that he had considered filing

       a motion to sever the charges but concluded that, as a matter of strategy, he

       should not because both of the victims had identified people other than Sharp as

       the perpetrators of the crimes. Specifically, Sharp’s trial counsel testified:


               I thought it may actually favor [Sharp] because you have two (2)
               people saying, at least initially, “no it wasn’t him, I believe it was
               someone else or someone that [does not] fit his description[.”]
               Isolated[,] in other words, if those trials were separate, that’s just
               one factor where you have two (2) individuals, I think you have a
               strong case to point out to the jury. You know is this just a
               coincidence. How does this happen twice but yet they want you
               to think that this guy is guilty[?] So[,] I thought it might actually
               [] favor him to have those trials together.


       (P-C Tr. 30-31).


[30]   Sharp claims that this trial strategy was unreasonable because the DNA

       evidence established his identity, so the victims’ identifications were “moot.”

       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 19 of 28
       (Sharp’s Br. 19). However, because the DNA evidence was the only evidence

       linking Sharp to the offenses, we conclude that it was logical for Sharp’s trial

       counsel to attempt to call that identification into question through the evidence

       of the victims’ contrary identifications. His decision was a reasonable strategic

       one, and we will not find his performance deficient. See Perryman v. State, 13

       N.E.3d 923, 931 (Ind. Ct. App. 2014) (“‘reasonable strategy is not subject to

       judicial second guesses.’”) (quoting Burr v. State, 492 N.E.2d 306, 309 (Ind.

       1986)), trans. denied. Accordingly, we conclude that Sharp did not meet his

       burden of proving that his appellate counsel provided ineffective assistance by

       failing to move for a severance of the charges.


           C. Failure to Object

[31]   Next, Sharp argues that his appellate counsel should have argued that his trial

       counsel was ineffective for failing to object to: (1) the State’s reference to the

       Indiana DNA database and a witness’s reference to Sharp’s status as a

       convicted offender; (2) the State’s admission of evidence of his DNA sample at

       trial; and (3) the trial court’s consideration of certain aggravating factors during

       sentencing. In order to prevail on a claim of ineffective assistance of counsel

       due to a failure to object, a defendant must show a reasonable probability that

       the objection would have been sustained if it were made. Perryman v. State, 13

       N.E.3d 923, 931 (Ind. Ct. App. 2014) (quoting Burr v. State, 492 N.E.2d 306,

       309 (Ind. 1986)), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 20 of 28
           i.      Convicted Offender

[32]   At trial, the State questioned Nicole Ihnat (“Ihnat”), a forensic DNA analyst

       with the Indiana State Police Laboratory, about the DNA match between the

       DNA samples taken from the victims and Sharp’s DNA sample stored in

       Indiana’s DNA database, CODIS. The State asked Ihnat, “Who matched the

       profile that you entered into the CODIS data bank?” and she responded, “It

       was found to be consistent with a convicted offender sampled [sic] from Brent

       Sharp.” (Trial Tr. 622). During its closing argument, the State then referred to

       CODIS again, stating “[i]t’s not until September of ’03 when we got the CODIS

       hit.” (Trial Tr. 684). The State also said “it was Brent Sharp whose

       information DNA profile was in CODIS[.]” (Trial Tr. 685). Sharp now asserts

       that these references to his convicted offender status and CODIS, which is a

       database for the DNA of convicted offenders, prejudiced his trial by informing

       the jury that he had a criminal history. Accordingly, he contends that his

       appellate counsel should have argued that his trial counsel was ineffective for

       failing to object to those references.


[33]   At Sharp’s post-conviction hearing, his trial counsel testified that he did not

       remember the State’s references to CODIS or to Sharp’s status as a convicted

       offender, but he said that if he did not object, “something like that is often done

       for strategic reasons;” specifically, if a person “did [not] want to bring specific

       attention to it in that context.” (P-C Tr. 35). In that case, his action would

       have been a legitimate strategic decision, and Sharp’s appellate counsel would

       not be ineffective for failing to raise the issue on appeal. See Connor v. State, 711


       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 21 of 28
       N.E.2d 1238, 1250 (Ind. 1999) (holding that a defense counsel’s avoidance of

       drawing attention to testimony or argument unfavorable to the defendant is a

       legitimate strategy), reh’g denied, cert. denied.


[34]   Regardless, Sharp’s trial counsel’s failure to object to the challenged testimony

       was not prejudicial. As we stated above, 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. Timberlake, 753 N.E.2d at 603. A reasonable probability is a

       probability sufficient to undermine confidence in the outcome. Id. Here, there

       was DNA evidence directly linking Sharp to his offenses. As Ihnat stated, in

       the absence of an identical twin, Sharp was “the source of the DNA to a

       reasonable degree of scientific certainty.” (Trial Tr. 626). In addition, Ihnat

       only mentioned that Sharp was a convicted offender on one occasion, and it

       was not in response to the State’s question. Also, Sharp’s trial counsel later

       attempted to cure the admission by asking Ihnat: “Now the CODIS database

       that you mentioned, those are not just sex offenders, right? That’s anybody

       who has their profile in the database?” and she responded, “That is correct.”

       (Trial Tr. 640). In light of all of these factors, it is unlikely that Ihnat’s reference

       to Sharp’s convicted offender status or the CODIS database prejudiced Sharp

       such that there was a reasonable probability the result of the proceeding would

       have been different. Thus, Sharp’s appellate counsel was not ineffective for

       failing to argue that trial counsel should have objected to the statements, and




       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 22 of 28
       the post-conviction court did not err in finding that Sharp did not meet his

       burden of proving that he received ineffective assistance of counsel.


           ii.     DNA Sample

[35]   Next, Sharp asserts that his appellate counsel was ineffective because he did not

       argue on appeal that his trial counsel should have objected to “the DNA sample

       taken for inclusion in CODIS.” (Sharp’s Br. 21). Sharp claims that the State

       did not present any evidence at trial that his sample was taken in a “medically

       approved manner” or that there was a chain of custody of the sample prior to its

       inclusion in the database. (Sharp’s Br. 21).


[36]   Both of these arguments again challenge the propriety of the inclusion of

       Sharp’s DNA in the CODIS database, although on different grounds than he

       raised in his direct appeal. First, we must note that Sharp’s trial counsel did

       object to the “method or manner of obtaining the substances or the samples

       from Brent Sharp” at trial and was not successful. (Trial Tr. 624).

       Theoretically, the “method or manner” of obtaining the samples relates to both

       of Sharp’s arguments here and, therefore, was addressed by his trial counsel,

       contrary to his contentions. (Trial Tr. 624).


[37]   In addition, as we stated in his direct appeal, Sharp had already litigated the

       propriety of the DNA sample at the time of his trial, so he was precluded from

       collaterally attacking the manner that the evidence was submitted into CODIS.

       See Sharp, 835 N.E.2d at 1085 (finding that Sharp was collaterally estopped

       from re-litigating the submission of his DNA into CODIS). Thus, Sharp’s trial


       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 23 of 28
       counsel would not have been successful in objecting to the evidence of the

       DNA sample on either of the grounds that Sharp raises here and, accordingly,

       his appellate counsel was not ineffective for failing to raise the issue on appeal.

       See Timberlake, 753 N.E.2d at 603 (stating that a petitioner must demonstrate

       that counsel’s performance was deficient, which 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”).


           iii.    Aggravating Factors

[38]   Finally, Sharp argues that his appellate counsel was ineffective because he did

       not assert that his trial counsel was ineffective for failing to object to the

       aggravating factors the trial court adopted during sentencing. Specifically,

       Sharp claims that his trial counsel should have objected to the trial court’s

       consideration of: (1) his criminal history; (2) his “need for correctional or

       rehabilitative treatment that can best be provided by commitment to a penal

       facility;” (3) the victims’ ages; (4) the fact that the crime was committed in the

       presence of or hearing of a person who was less than eighteen years old; and (5)

       the nature and circumstances of Sharp’s offenses. (Appellate App. 446).


[39]   We need not address Sharp’s arguments individually because we conclude that

       even if the trial court’s aggravators were improper, Sharp has not shown that he

       was prejudiced by his counsel’s failure to object. See Timberlake, 753 N.E.2d at

       603 (stating that a petitioner must show that his counsel’s performance

       prejudiced his defense in order to succeed on an ineffective assistance of counsel

       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 24 of 28
       claim). Sentencing determinations are within the trial court’s discretion.

       McCann v. State, 749 N.E. 2d 1116, 1119 (Ind. 2001). At the time of Sharp’s

       offense, if a trial court relied on aggravating or mitigating circumstances to

       enhance or reduce the presumptive sentence, it had to: (1) identify all

       significant mitigating and aggravating circumstances; (2) state the specific

       reason why each circumstance was determined to be mitigating or aggravating;

       and (3) articulate the trial court’s evaluation and balancing of the identified

       circumstances. Id. “‘[A] single aggravating circumstance [was] enough to

       justify an enhancement or the imposition of consecutive sentences,’” and this

       Court would only have remanded for resentencing if we could not say “with

       confidence that the trial court would have imposed the same sentence if it

       considered the proper aggravating and mitigating circumstances.” McCann, 749

       N.E.2d at 1121. When a trial court improperly applied an aggravator but other

       aggravating circumstances existed, our supreme court would uphold a sentence

       enhancement. Garland v. State, 855 N.E.2d 703, 707 (Ind. Ct. App. 2006)

       (citing Smith v. State, 770 N.E.2d 818, 822 (Ind. 2002)), trans. denied.


[40]   Even if we found that the five aggravating factors the trial court adopted here

       were improper, the jury found that there were thirty-eight total aggravating

       factors. As Sharp has not challenged the remaining thirty-three aggravators the

       jury found, we conclude that he was not prejudiced by his trial counsel’s failure

       to object to any of the statutory aggravators that the trial court adopted.

       Accordingly, Sharp did not show that his appellate counsel was ineffective for




       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 25 of 28
       failing to raise trial counsel’s failure to object to the aggravators as an issue on

       appeal.


       2. Competent Presentation of Issues

[41]   Finally, Sharp argues that his appellate counsel was ineffective because he

       failed to present issues competently. He notes that his appellate counsel’s

       ineffective assistance of trial counsel claim lacked merit because, as we held on

       appeal, it was collaterally estopped by the prior litigation. Sharp claims that he

       was prejudiced by this meritless claim because it precluded him from raising

       better ineffective assistance of trial counsel claims in his petition for post-

       conviction relief. He also contends that the post-conviction court erred by

       failing to address this argument in its findings of fact and conclusions thereon.


[42]   Under the third category of appellate ineffectiveness, a petitioner may allege

       that, although his counsel raised particular issues, counsel’s presentation of

       them was inadequate in some way. Bieghler, 690 N.E.2d at 195. This category

       includes actions such as filing an inadequate appellate brief. Id. Sometimes,

       “appellate counsel’s work is so deficient that an issue, though technically raised,

       is deemed waived for failure to present cogent argument and/or cite to facts in

       the record supporting the claim.” Id. In other cases, however, the reviewing

       court is still able to reach the issue on its merits, even though counsel’s

       presentation of it was less than stellar. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 26 of 28
[43]   First, we disagree with Sharp’s contention that the post-conviction court failed

       to rule on this argument. In its order, the post-conviction court concluded:


               201. The Court acknowledges that the brief of appellate counsel
               was weak. He did not develop his arguments well and he “fell
               into” making an ineffective assistance of counsel claim[] that
               should have been preserved for [post-conviction] [r]elief.
               202. That being said, this Court finds that Petitioner has failed to
               meet his burden with regard to ineffective assistance of appellate
               counsel.
               203. The Court further finds and concludes that trial counsel was
               not ineffective pursuant to Strickland.
               204. The above-referenced, unraised issues were not significant
               and obvious from the face of the record, and these issues are not
               clearly stronger than the raised issues. Therefore, [a]ppellate
               [c]ounsel was not ineffective.
               Additionally, the Petitioner has failed to prove prejudice. . . .


       (App. 63-64). The post-conviction court clearly addressed Sharp’s argument in

       this excerpt.


[44]   Second, we agree with the substance of the post-conviction court’s conclusions.

       Even if Sharp’s appellate counsel’s brief was weak, Sharp has not demonstrated

       that he was prejudiced as a result. We have not found that any of the

       ineffective assistance of trial counsel claims Sharp has raised had more merit

       than the claims Sharp’s appellate counsel raised on appeal. Accordingly, we

       conclude that the results of Sharp’s appeal would not have been different if his

       appellate counsel had presented his issues differently, and, therefore, Sharp



       Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 27 of 28
failed to prove prejudice sufficient to prevail on an ineffective assistance of

counsel claim.


Affirmed.


Crone, J., and Brown, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A02-1410-PC-728 | November 30, 2015   Page 28 of 28
