MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              Dec 30 2016, 8:40 am
regarded as precedent or cited before any
                                                                        CLERK
court except for the purpose of establishing                        Indiana Supreme Court
                                                                       Court of Appeals
the defense of res judicata, collateral                                  and Tax Court

estoppel, or the law of the case.




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana

Jonathan O. Chenoweth                                    Jesse R. Drum
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Terry Smith,                                             December 30, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A04-1608-PC-1953
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt M. Eisgruber,
Appellee-Respondent.                                     Judge
                                                         The Honorable Steven J. Rubick,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G01-1003-PC-17803



Bradford, Judge.


Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016    Page 1 of 13
                                          Case Summary
[1]   In March of 2010, Appellee-Respondent the State of Indiana (“the State”)

      charged Appellant-Petitioner Terry Smith with Class A felony attempted

      murder, Class B felony armed robbery, Class B felony criminal confinement,

      Class B felony unlawful possession of a firearm by a serious violent felon

      (“SVF”), Class D felony auto theft, and Class D felony resisting law

      enforcement. The State subsequently amended the charges to add an allegation

      that Smith was a habitual offender. Following trial, the jury found Smith guilty

      of Class B felony robbery, Class D felony auto theft, and Class D felony

      resisting law enforcement. The trial court subsequently found Smith guilty of

      Class B felony unlawful possession of a firearm by a SVF. The trial court also

      determined that Smith was a habitual offender. The trial court then sentenced

      Smith to an aggregate term of forty-five years. Smith appealed, challenging,

      among other things, the sufficiency of the evidence to sustain the determination

      that he was a habitual offender.


[2]   Smith subsequently filed a petition seeking post-conviction relief (“PCR”),

      arguing that he suffered ineffective assistance of appellate counsel. Following

      an evidentiary hearing on Smith’s petition, the post-conviction court

      determined that Smith had failed to establish that he suffered ineffective

      assistance of appellate counsel. On appeal, Smith challenges the post-

      conviction court’s determination. Concluding that Smith has failed to prove

      that he suffered ineffective assistance of appellate counsel, we affirm.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016   Page 2 of 13
                            Facts and Procedural History
[3]   Our opinion in Smith’s prior direct appeal, which was handed down on

      February 7, 2013, instructs us to the underlying facts and procedural history

      leading to this post-conviction appeal.


              On March 8, 2010, the State charged Smith with Class A felony
              attempted murder, Class B felony armed robbery, Class B felony
              criminal confinement, Class B felony unlawful possession of a
              firearm by a serious violent felon, Class D felony auto theft, and
              Class D felony resisting law enforcement. The State
              subsequently amended the charges to add an allegation that
              Smith was an habitual offender. A jury trial was held on May 31
              through June 3, 2011. At the conclusion of this trial, the jury
              found Smith not guilty of attempted murder and criminal
              confinement, but was unable to reach a verdict on the remaining
              counts. The trial court declared a mistrial as to the counts on
              which the jury was unable to reach verdict, and a second jury
              trial on those counts was set for August 22, 2011.

                                                     ****

              Smith’s second jury trial began on December 19, 2011. On
              December 21, 2011, the jury found Smith guilty of Class B felony
              robbery, Class D felony auto theft, and Class D felony resisting
              law enforcement. Smith waived his right to a jury trial on the
              charge of possession of a firearm by a serious violent felon and
              the allegation that he was an habitual offender. The trial court
              later found Smith guilty of possession of a firearm by a serious
              violent felon and found Smith to be an habitual offender.

              At a hearing held on January 27, 2012, the trial court sentenced
              Smith to fifteen years on the robbery conviction, to which a
              thirty-year habitual offender enhancement was added. The trial
              court sentenced Smith to twenty years for possession of a firearm
              by a serious violent felon, three years for auto theft, and three
      Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016   Page 3 of 13
              years for resisting law enforcement. All of these sentences were
              to run concurrently with the forty-five-year enhanced sentence
              imposed on the robbery conviction.


      Smith v. State, 982 N.E.2d 393, 398-400 (Ind. Ct. App. 2013).


[4]   On December 24, 2013, Smith filed a pro-se PCR petition. Smith, by counsel,

      filed an amended PCR petition on July 8, 2015. In this amended petition,

      Smith claimed that he received ineffective assistance from his appellate counsel.

      The trial court conducted an evidentiary hearing on November 17, 2015, after

      which it took the matter under advisement. On August 1, 2016, the post-

      conviction court issued an order denying Smith’s petition. This appeal follows.



                                Discussion and Decision
[5]   Post-conviction procedures do not afford the petitioner with a super-appeal.

      Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a

      narrow remedy for subsequent collateral challenges to convictions, challenges

      which must be based on grounds enumerated in the post-conviction rules. Id.

      A petitioner who has been denied post-conviction relief appeals from a negative

      judgment and as a result, faces a rigorous standard of review on appeal. Dewitt

      v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942

      (Ind. Ct. App. 1999), trans. denied.


[6]   Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,

      745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his

      claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);
      Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016   Page 4 of 13
      Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition,

      a petitioner must convince this court that the evidence, taken as a whole, “leads

      unmistakably to a conclusion opposite that reached by the post-conviction

      court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without

      conflict and leads to but one conclusion, and the post-conviction court has

      reached the opposite conclusion, that its decision will be disturbed as contrary

      to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied.

      The post-conviction court is the sole judge of the weight of the evidence and the

      credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

      We therefore accept the post-conviction court’s findings of fact unless they are

      clearly erroneous but give no deference to its conclusions of law. Id.


                         I. Ineffective Assistance of Counsel
[7]   The right to effective counsel is rooted in the Sixth Amendment to the United

      States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The

      Sixth Amendment recognizes the right to the assistance of counsel because it

      envisions counsel’s playing a role that is critical to the ability of the adversarial

      system to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S.

      668, 685 (1984)). “The benchmark for judging any claim of ineffectiveness

      must be whether counsel’s conduct so undermined the proper function of the

      adversarial process that the trial court cannot be relied on as having produced a

      just result.” Strickland, 466 U.S. at 686.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016   Page 5 of 13
[8]    A successful claim for ineffective assistance of counsel must satisfy two

       components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). The standard of

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

       for trial counsel in that the petitioner must show appellate counsel was deficient

       in his performance and that the deficiency resulted in prejudice. Overstreet v.

       State, 877 N.E.2d 144, 165 (Ind. 2007) (citing Bieghler v. State, 690 N.E.2d 188,

       193 (Ind. 1997)).


[9]    Under the first prong, the petitioner must establish that counsel’s performance

       was deficient by demonstrating that counsel’s representation “fell below an

       objective standard of reasonableness, committing errors so serious that the

       defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.”

       Reed, 866 N.E.2d at 769. We recognize that even the finest, most experienced

       criminal defense attorneys may not agree on the ideal strategy or most effective

       way to represent a client, and therefore, under this prong, we will assume that

       counsel performed adequately and defer to counsel’s strategic and tactical

       decisions. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). Isolated mistakes,

       poor strategy, inexperience, and instances of bad judgment do not necessarily

       render representation ineffective. Id.


[10]   Under the second prong, the petitioner must show that the deficient

       performance resulted in prejudice. Reed, 866 N.E.2d at 769. Again, a petitioner

       may show prejudice by demonstrating that there is “a reasonable probability

       (i.e. a probability sufficient to undermine confidence in the outcome) that, but

       for counsel’s errors, the result of the proceeding would have been different.” Id.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016   Page 6 of 13
       A petitioner’s failure to satisfy either prong will cause the ineffective assistance

       of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently,

       “[a]lthough the two parts of the Strickland test are separate inquires, a claim

       may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031

       (Ind. 2006) (citing Williams, 706 N.E.2d at 154).


[11]   In alleging ineffective assistance of appellate counsel, Smith claims that his

       counsel rendered ineffective assistance by (1) failing to cite to certain authority

       which he claims would have strengthened his sufficiency argument on direct

       appeal and (2) failing to challenge the sufficiency of the evidence to sustain his

       conviction for unlawful possession of a firearm by a SVF. Both of Smith’s

       arguments are predicated on his claim that the State failed to present sufficient

       evidence to prove that he had been convicted in Marion County of felony

       robbery, unlawful possession of a firearm by a SVF, and auto theft in 2003.


                                A. Failure to Cite to Authority
[12]   Smith contends that his appellate counsel was ineffective for failing to cite to

       our opinions in Bochner v. State, 715 N.E.2d 416 (Ind. Ct. App. 1999) and

       Abdullah v. State, 847 N.E.2d 1031 (Ind. Ct. App. 2006), on direct appeal.

       Specifically, Smith claims that citation to each of these cases would have

       bolstered his argument that the State presented insufficient evidence to prove

       that Smith was a habitual offender.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016   Page 7 of 13
                                                  1. Bochner

[13]   In Bochner, one of the convictions used to prove Bochner’s status as a habitual

       offender was an offense that occurred in Missouri. 715 N.E.2d at 419. In the

       Missouri case, Bochner entered into a plea agreement whereby the court

       suspended imposition of his sentence and placed Bochner on probation. Id. In

       reviewing Bochner’s challenge to the sufficiency of the State’s evidence to prove

       he was a habitual offender on appeal, we noted the following:


               Missouri law provides that, “If the person is arrested but ...
               imposition of sentence is suspended in the court in which the
               action is prosecuted, official records pertaining to the case shall
               thereafter be closed records when such case is finally terminated
               except as provided in section 610.120.” MO. Ann. Stat. §
               610.105 (West 1988). Further, the Missouri Supreme Court has
               held that the suspended imposition of a sentence and the
               placement of a person on probation does not constitute a
               “conviction.” Yale v. City of Independence, 846 S.W.2d 193, 196
               (Mo. 1993). The Yale court held that the suspended imposition
               of a sentence is not a final judgment, and thus, cannot be
               considered a conviction. Id. at 194–95.


       Id. (footnote omitted). Given Missouri’s relevant statutory authority and the

       Missouri Supreme Court’s opinion in Yale, we concluded that the Missouri

       offense did not qualify as a prior conviction because, under Missouri law,

       Bochner was never convicted of the offense that he was alleged to have

       committed in that state. Id. at 420.


[14]   We are unpersuaded by Smith’s assertion that citation to Bochner would have

       somehow clarified his appellate counsel’s argument with regard to whether the

       Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016   Page 8 of 13
       abstract of judgment at issue, which dealt with an Indiana conviction and was

       signed by an Indiana judicial officer, was sufficient to prove he had, in fact,

       been convicted of the underlying crime. In fact, we have trouble ascertaining

       how citation to our opinion in Bochner, which considered a question relating to

       whether an individual was deemed to have been convicted of a crime under

       Missouri law, could have possibly aided Smith’s sufficiency argument below. 1

       Smith, therefore, has failed to prove that his appellate counsel’s failure to cite to

       Bochner constituted either deficient performance or resulted in prejudice. As

       such, we conclude that Smith has failed to prove that his appellate counsel was

       ineffective for failing to cite to Bochner on direct appeal.


                                                 2. Abdullah

[15]   We also conclude that counsel cannot be found ineffective for failing to cite to

       Abdullah in counsel’s brief on direct appeal because citation to Abdullah would

       be unavailing as it is easily distinguishable from the instant matter. In Abdullah,

       the question was whether an abstract of judgment which bore no judicial

       signature was sufficient to prove a prior conviction. 847 N.E.2d at 1033-35.

       Upon review, we noted that Trial Rule 58(B) requires that an abstract of

       judgment shall include the signature of the judge. Id. at 1034. As such, we

       concluded that “an unsigned abstract fails to represent the trial court’s final




       1
         It seems that at most, Bochner could apply insofar as it reiterates the uncontested legal principal
       that one must have two prior unrelated felony convictions before one can be determined to be
       a habitual offender.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016   Page 9 of 13
       judgment and, therefore, is insufficient to prove a prior conviction for purposes

       of proving … statuses as a serious violent felon and a habitual offender.” Id. at

       1035.


[16]   Unlike the abstract of judgment at issue in Abdullah, the abstract of judgment at

       issue in the instant matter was not unsigned. It was signed by Master

       Commissioner Nancy L. Broyles. As we noted in our opinion in Smith’s direct

       appeal, the record is devoid of any evidence of or suggestion that Smith “ever

       challenged the validity of his guilty plea and subsequent conviction for robbery

       on the basis that the master commissioner was without authority to enter a final

       order.” Smith, 982 N.E.2d at 409. Because we found that a judicial officer had

       signed the judgment, and that judgment was never challenged at trial or on

       appeal as being improper, under these facts and circumstances presented to the

       court, we concluded “that the State presented evidence sufficient for the trial

       court to conclude that Smith had in fact been convicted of robbery in 2003, and

       there was therefore sufficient evidence to support Smith’s adjudication as an

       habitual offender.” Id. (footnote omitted). Smith has failed to establish that his

       appellate counsel’s failure to cite to Abdullah, which again would have been

       unavailing as it was distinguishable from the facts and circumstances of Smith’s

       case, constituted either deficient performance or resulted in prejudice.


            B. Failure to Raise Sufficiency Claim on Direct Appeal
[17]   The Indiana Supreme Court has noted that the failure to raise an issue on direct

       appeal can be a formidable error because of the well-established rule that issues


       Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016   Page 10 of 13
that were or could have been raised on direct appeal are not available for post-

conviction review. See Bieghler, 690 N.E.2d at 193. Nevertheless,

“‘[i]neffectiveness is very rarely found in these cases.’” Id. (quoting Lissa

Griffin, The Right to Effective Assistance of Appellate Counsel, 97 W. Va. L.Rev. 1,

25 (1994)) (brackets in original). One explanation for why ineffectiveness is

rarely found in these types of cases is that the decision of what issues to raise on

appeal is one of the most important strategic decisions to be made by appellate

counsel. Id.


        “Experienced advocates since time beyond memory have
        emphasized the importance of winnowing out weaker arguments
        on appeal and focusing on one central issue if possible, or at most
        a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct.
        3308, 3313, 77 L.Ed.2d 987 (1983). As Justice Jackson noted,
                “Legal contentions, like the currency, depreciate
                through over-issue. The mind of an appellate judge is
                habitually receptive to the suggestion that a lower
                court committed an error. But receptiveness declines
                as the number of assigned errors increases.
                Multiplicity hints at lack of confidence in any one....
                [E]xperience on the bench convinces me that
                multiplying assignments of error will dilute and
                weaken a good case and will not save a bad one.”
        Id. at 752, 103 S.Ct. at 33133 (quoting Justice Robert H. Jackson,
        Advocacy Before the United States Supreme Court, 25 Temple L.Q.
        115, 119 (1951)). Accordingly, when assessing these types of
        ineffectiveness claims, reviewing courts should be particularly
        deferential to counsel’s strategic decision to exclude certain issues
        in favor of others, unless such a decision was unquestionably
        unreasonable. See Smith v. Murray, 477 U.S. 527, 535-36, 106
        S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986).


Id. at 193-94.

Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016   Page 11 of 13
[18]   The Indiana Supreme Court noted that “[i]n analyzing this sort of case, the

       Seventh Circuit, under its performance analysis, first looks to see whether the

       unraised issues were significant and obvious upon the face of the record.” Id. at

       194. “If so, that court then compares these unraised obvious issues to those

       raised by appellate counsel, finding deficient performance ‘only when ignored

       issues are clearly stronger than those presented.’” Id. (quoting Gray v. Greer, 800

       F.2d 644, 646 (7th Cir.1986) (additional citations omitted). The Indiana

       Supreme Court also noted that when completing this analysis, “the reviewing

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

       the chaff in appellate advocacy, and 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.” Id.


[19]   Smith essentially bases his contention that his appellate counsel was ineffective

       for failing to challenge the sufficiency of the evidence to prove his conviction for

       unlawful possession of a firearm by a SVF on the same arguments presented

       with regard to his citation to authority argument. The record reveals that the

       State relied on Smith’s 2003 robbery conviction as evidence that he was guilty

       of possession of a firearm by a SVF. Smith asserts in the instant appeal that had

       appellate counsel raised a sufficiency claim on direct appeal, it “may well have

       prevailed, as demonstrated by Abdullah.” Appellant’s Br. p. 16.


[20]   As we stated above, the abstract of judgment relating to Smith’s 2003

       convictions in Marion County was valid. As such, given our conclusion above

       Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016   Page 12 of 13
       that citation to Abdullah would have been unavailing as it is easily

       distinguishable from the facts presented in the instant matter, we conclude that

       Smith has failed to prove that his appellate counsel’s failure to raise a

       sufficiency claim based on the precedent set by our opinion in Abdullah

       constituted either deficient performance or resulted in prejudice. An attorney

       does not provide ineffective assistance by failing to raise a losing argument on

       direct appeal. See McChristion v. State, 511 N.E.2d 297, 302 (Ind. 1987)

       (providing that because the arguments at issue were meritless, appellate counsel

       was not ineffective for failing to raise them on direct appeal). We therefore

       further conclude that Smith has failed to prove that his appellate counsel was

       ineffective for failing to challenge the sufficiency of the evidence to sustain his

       conviction for possession of a firearm by a SVF on direct appeal.



                                               Conclusion
[21]   We conclude that Smith has failed to prove that he suffered ineffective

       assistance of appellate counsel. We therefore affirm the judgment of the post-

       conviction court.


[22]   The judgment of the post-conviction court is affirmed.


       Vaidik, C.J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016   Page 13 of 13
