MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                 Jun 14 2018, 8:03 am
this Memorandum Decision shall not be
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regarded as precedent or cited before any                               Indiana Supreme Court
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the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Terry W. Rexing                                          Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Terry W. Rexing,                                         June 14, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         82A01-1710-PC-2545
        v.                                               Appeal from the Vanderburgh
                                                         Superior Court
State of Indiana,                                        The Honorable Robert J. Pigman,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         82D03-1404-PC-5



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1710-PC-2545 | June 14, 2018            Page 1 of 14
[1]   Terry Rexing appeals from the denial of his petition for post-conviction relief.

      He raises multiple arguments, which we restate as follows: he received the

      ineffective assistance of trial counsel because counsel should have (1) conducted

      additional investigations; (2) handled a proposed plea agreement for a witness

      who testified against Rexing differently; (3) objected to instances of alleged

      prosecutorial misconduct; and (4) objected to the habitual offender

      enhancement imposed by the trial court. He also contends that appellate

      counsel was ineffective for raising these issues in his direct appeal. Finding no

      error, we affirm.


                                                     Facts
[2]   The underlying facts as described by this Court in Rexing’s direct appeal are as

      follows:


              Anthony Werne leased an apartment located above an insurance
              agency in Evansville. An elementary school is just across the
              street. In March 2012, Werne allowed Rexing to move in.
              Rexing slept in the apartment’s one bedroom, and Werne slept
              on a couch. Rexing kept his belongings in the bedroom and
              frequently locked the door to the bedroom even when he was not
              present.

              On August 2, 2012, Werne purchased medicine containing
              pseudoephedrine, a precursor of methamphetamine. He gave the
              medicine to Rexing. In addition, at Rexing’s request Werne
              contacted an acquaintance to see if he had any plastic tubing.
              Later that day, Werne was watching television in the apartment
              when Rexing walked out of the bedroom. Rexing told Werne
              that something in the bedroom had caught fire, and he needed
              help. Werne went into the bedroom and saw a small fire on the

      Court of Appeals of Indiana | Memorandum Decision 82A01-1710-PC-2545 | June 14, 2018   Page 2 of 14
        floor under a window. Werne put out the fire with water, and as
        he did so Rexing picked up items on the bedroom floor.

        Meanwhile, firefighters were dispatched to Werne’s apartment in
        response to a report of smoke coming out of the building. When
        the firefighters arrived, Werne, acting on Rexing’s instructions,
        initially refused to let them in. The firefighters entered the
        apartment despite Werne’s objections and told the men to
        evacuate. Werne and Rexing went outside. When a police
        officer arrived, Rexing tried to walk away, but the officer stopped
        him from leaving.

        A fire investigator entered the apartment and found two burnt
        areas, one on the floor under a window, and another in a closet.
        The investigator also saw precursors and other items used in the
        manufacture of methamphetamine. He concluded that someone
        had been making methamphetamine under the window when the
        apparatus caught fire, and someone had then placed the burnt
        items in the closet.

        Meanwhile, a police officer interviewed Rexing. Rexing claimed
        that Werne slept in the bedroom and owned the precursors and
        other methamphetamine-related items that were found there.

        The State charged Rexing with dealing in methamphetamine as a
        Class B felony, possession of precursors with intent to
        manufacture a controlled substance, maintaining a common
        nuisance, false informing, criminal recklessness, and being a
        habitual substance abuser. Rexing filed a request for a speedy
        trial. Prior to trial, the State amended the charging information
        to increase the charge of dealing in methamphetamine to a Class
        A felony, alleging that Rexing committed the offense within 1000
        feet of a school. The State also charged Rexing with being a
        habitual offender. The trial court permitted the amendments
        over Rexing’s objection.

        In addition, prior to trial the State notified Rexing that it
        intended to present to the jury evidence that Rexing had

Court of Appeals of Indiana | Memorandum Decision 82A01-1710-PC-2545 | June 14, 2018   Page 3 of 14
              purchased medicine containing pseudoephedrine several times
              and that stores had blocked him from purchasing medicine
              containing pseudoephedrine several times in the months prior to
              the fire. Rexing objected and filed a motion in limine. The trial
              court denied his motion after a hearing.

              Rexing was tried on all counts except being a habitual offender.
              Among other evidence, the State presented testimony and an
              exhibit to show that Rexing had twice purchased medicine
              containing pseudoephedrine and that stores had twice blocked
              him from purchasing medicine containing pseudoephedrine in
              the month prior to the apartment fire. The jury found him guilty
              as charged.


      Rexing v. State, No. 82A01-1212-CR-561, at *1-*2 (Ind. Ct. App. Sept. 23,

      2013). Rexing admitted to being an habitual offender. The trial court

      sentenced him to thirty years for the Class A felony dealing in

      methamphetamine conviction and enhanced that sentence by thirty years for

      the habitual offender finding. The sentences on the other counts were ordered

      to be served concurrently, meaning that Rexing received an aggregate sixty-year

      term.


[3]   Rexing filed a direct appeal, arguing that the trial court erred by allowing the

      State to amend the charging information; the trial court erred by admitting

      certain evidence; there was insufficient evidence supporting the Class A felony

      conviction; and the sentence was inappropriate. This Court affirmed. Id. at *5.


[4]   On April 4, 2014, Rexing filed a petition for post-conviction relief, arguing that

      he received the ineffective assistance of trial and appellate counsel. He filed an



      Court of Appeals of Indiana | Memorandum Decision 82A01-1710-PC-2545 | June 14, 2018   Page 4 of 14
      amended petition on May 11, 2017. Following briefing, the post-conviction

      court denied the petition on September 28, 2017. Rexing now appeals.


                                   Discussion and Decision
[5]   The general rules regarding the review of a ruling on a petition for post-

      conviction relief are well established:


              “The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
              “When appealing from the denial of post-conviction relief, the
              petitioner stands in the position of one appealing from a negative
              judgment.” Id. To prevail on appeal from the denial of post-
              conviction relief, a petitioner must show that the evidence as a
              whole leads unerringly and unmistakably to a conclusion
              opposite that reached by the post-conviction court. Weatherford v.
              State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
              conviction court in this case made findings of fact and
              conclusions of law in accordance with Indiana Post–Conviction
              Rule 1(6). Although we do not defer to the post-conviction
              court’s legal conclusions, “[a] post-conviction court’s findings
              and judgment will be reversed only upon a showing of clear
              error—that which leaves us with a definite and firm conviction
              that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d
              102, 106 (Ind. 2000) (quotation omitted).


      Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).


                    I. Ineffective Assistance of Trial Counsel
[6]   Rexing argues that his trial counsel was ineffective for a variety of reasons. A

      claim of ineffective assistance of trial counsel requires a showing that:


      Court of Appeals of Indiana | Memorandum Decision 82A01-1710-PC-2545 | June 14, 2018   Page 5 of 14
      (1) counsel’s performance was deficient by falling below an objective standard

      of reasonableness based on prevailing professional norms; and (2) counsel’s

      performance prejudiced the defendant such that “‘there is a reasonable

      probability that, but for counsel’s unprofessional errors, the result of the

      proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444

      (Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A

      reasonable probability arises when there is a ‘probability sufficient to undermine

      confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.

      2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two

      prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.

      Ct. App. 2012).


                                    A. Additional Investigation
[7]   First, Rexing contends that trial counsel should have done a more extensive

      investigation to find exculpatory evidence and to find evidence of an alleged

      Miranda1 violation. Counsel “has a duty to make reasonable investigations or

      to make a reasonable decision that makes particular investigations

      unnecessary.” Boesch v. State, 778 N.E.2d 1276, 1284 (Ind. 2002). The

      petitioner bears the burden to show what additional useful evidence further

      investigation would have revealed. McKnight v. State, 1 N.E.3d 193, 201 (Ind.

      Ct. App. 2013).




      1
          Miranda v. Arizona, 384 U.S. 436, 444 (1966).


      Court of Appeals of Indiana | Memorandum Decision 82A01-1710-PC-2545 | June 14, 2018   Page 6 of 14
                              1. Seeking Additional Evidence
[8]   It is not entirely clear, but Rexing appears to be arguing that his trial counsel

      failed to adequately investigate who obtained the methamphetamine precursors

      because counsel did not seek receipts for or fingerprints from the items or

      review surveillance videos from stores. But Rexing has not presented any

      fingerprint or video evidence during the post-conviction proceedings to show

      that it was available or would have been in his favor. Therefore, he has

      presented no new evidence establishing a reasonable probability of a different

      result. In other words, he has failed to show prejudice.


[9]   Moreover, it is apparent that trial counsel decided to use the lack of fingerprint

      and video evidence as part of the defense strategy. During closing argument,

      counsel highlighted the fact that there were no fingerprints, DNA, or direct

      evidence from stores connecting Rexing to the purchase of the precursors. We

      will not second-guess this eminently reasonable trial strategy. The post-

      conviction court did not err by finding trial counsel was not ineffective for this

      reason.2




      2
        Rexing attempts to bootstrap in an insufficient evidence claim by arguing that trial counsel should have
      investigated the fact that the evidence of methamphetamine manufacturing was circumstantial because no
      actual methamphetamine was found. It is apparent that he is actually arguing that the evidence was
      insufficient to support this conviction, which is not an argument available in post-conviction proceedings.
      Sanders v. State, 765 N.E.2d 591, 591-92 (Ind. 2002).

      Court of Appeals of Indiana | Memorandum Decision 82A01-1710-PC-2545 | June 14, 2018              Page 7 of 14
                                           2. Miranda Violation
[10]   Rexing also contends that trial counsel should have investigated an alleged

       Miranda violation. Evidently, counsel filed a motion to suppress on this basis,

       but as neither the motion nor an affidavit from counsel is present in the record

       on appeal, we have no way to evaluate it.3


[11]   Essentially, the only evidence in the record suggesting that Rexing was not

       provided with Miranda warnings prior to speaking with police is his own self-

       serving claim in his post-conviction affidavit. Rexing claims that he was

       arrested and questioned by Officer Shawn Smith before the other officers

       arrived and that Officer Smith did not advise him of his Miranda rights.


[12]   Officer Smith, however, presented no testimony at trial regarding any

       statements made by Rexing. He described being the first officer on the scene

       and detaining Rexing because he was walking away from the apartment and

       ignoring commands to stop. The State never presented any evidence suggesting

       that Rexing made any admission to Officer Smith. Under these circumstances,

       further investigation by trial counsel would not have ended in a different result,

       as it is apparent that there was no admitted evidence based on a Miranda

       violation. Therefore, Rexing was not prejudiced and the post-conviction court

       did not err in this regard.




       3
           It appears counsel abandoned the motion after further investigation and discussion with Rexing.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1710-PC-2545 | June 14, 2018              Page 8 of 14
                                  B. Werne’s Plea Agreement
[13]   Next, Rexing argues that trial counsel should have handled a proposed plea

       agreement for Werne differently. Werne was the person with whom Rexing

       was living when their apartment caught fire. Like Rexing, Werne faced drug-

       related criminal charges as a result and, ultimately, Werne testified against

       Rexing. The evidence in the record reveals that at some point before Rexing’s

       trial, the State offered Werne a plea agreement. At the time of trial, no

       agreement had been reached, nor is there any evidence that the offer was

       contingent on Werne testifying against Rexing. At trial, Rexing’s trial counsel

       questioned Werne about his testimony:


               Q:       I believe you have indicated to the Prosecutor that you got
                        pending charges?

               A:       Yeah. I have a manufacturing charge, a precursor charge
                        and a maintaining a house of a common nuisance.

               Q:       And are you getting a benefit for a bargain by testifying
                        here today?

               A:       No sir.

               Q:       Have you discussed that with anyone?

               A:       No sir.

               Q:       You hope that your testimony here today will help you
                        with your current charges?

               A:       It may, may not. I don’t know.

               Q:       You’re doing this out of the goodness of your heart to help
                        society?

       Court of Appeals of Indiana | Memorandum Decision 82A01-1710-PC-2545 | June 14, 2018   Page 9 of 14
                A:      I’m doing this, I’m doing this because I am not the one
                        that manufactured any methamphetamine.


       Trial Tr. p. 44-45.


[14]   Several days after Rexing’s trial concluded, Werne accepted the State’s plea

       offer. Rexing argues that at that point, his trial counsel should have filed a

       motion to correct error arguing that Werne had lied at trial when he denied

       receiving promises of favorable treatment in exchange for his testimony. But

       there is simply no evidence in the record suggesting that this was, in fact, the

       case. Rexing has not presented evidence in support of this contention, such as a

       copy of Werne’s plea offer or testimony from Werne or the prosecutor, to show

       that Werne’s trial testimony was false or misleading. Therefore, there is no

       evidence tending to suggest that if counsel had filed a motion to correct error, it

       would have been granted. Rexing has therefore failed to establish prejudice in

       this regard.4 We find no error in the post-conviction court’s resolution of this

       issue.




       4
         Rexing also argues that counsel should have somehow impeached Werne regarding this issue. As
       evidenced by the portion from the transcript quoted above, however, it is apparent that counsel strongly
       questioned the motivations behind Werne’s testimony. Counsel also made significant efforts to show that
       Werne was the principal drug manufacturer, forcefully cross-examining him on other grounds. Given this
       vigorous and capable questioning of Werne, the post-conviction court did not err by declining to find
       ineffective assistance on this basis.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1710-PC-2545 | June 14, 2018          Page 10 of 14
                                C. Prosecutorial Misconduct
[15]   Rexing also maintains that trial counsel was ineffective for failing to object to

       supposed prosecutorial misconduct. First, he contends that counsel should

       have argued that the prosecutor committed misconduct by allowing Werne to

       provide false testimony regarding whether he received a benefit for testifying

       against Rexing. As noted above, there is no evidence in the record beyond

       Rexing’s bald speculation that supports this assertion. Therefore, any attempt

       to make this argument would have been unsuccessful.


[16]   Second, Rexing argues that counsel should have objected when the prosecutor

       supposedly vouched for Werne during closing arguments. Indeed, it is well

       established that a prosecutor “may not state his or her personal opinion

       regarding the credibility of a witness during trial, as such statements amount to

       vouching for a witness.” Brummett v. State, 10 N.E.3d 78, 86 (Ind. Ct. App.

       2015), aff’d, 24 N.E.3d 965 (Ind. 2015). A prosecutor may, however,

       “‘comment as to witness credibility if the assertions are based on reasons arising

       from the evidence presented at trial.’” Id. (quoting Thomas v. State, 965 N.E.2d

       70, 77 (Ind. Ct. App. 2012)). In this case, the prosecutor encouraged the jury to

       find Werne credible based on the evidence in the record:


               [Defense counsel] wants to say well Mr. Werne is doing this
               because well then he can’t be found guilty. . . . You can aid and
               abet. So even if [Rexing is] found guilty [Werne] can still be
               found guilty for aiding and abetting. Mr. Werne is not going to
               get off scot-free. He’s not free just because Rexing is being found
               guilty and for that reason believe that you can find him
               believable. His story was consistent from August 2nd to
       Court of Appeals of Indiana | Memorandum Decision 82A01-1710-PC-2545 | June 14, 2018   Page 11 of 14
               yesterday. This is Mr. Rexing’s lab. It’s not Mr. Werne’s and I
               ask you to find Mr. Rexing guilty.


       Trial Tr. p. 217-28. This was not a case of the prosecutor improperly vouching

       for a witness based on personal opinion; instead, it was a proper request for the

       jurors to find Werne credible based on the evidence before them. Therefore,

       had trial counsel objected, it would have been overruled. We find no error with

       respect to the post-conviction court’s resolution of this issue.


                          D. Habitual Offender Enhancement
[17]   Next, Rexing argues that trial counsel should have objected to the length of the

       sentence enhancement for the habitual offender finding. He directs our

       attention to the following comments made by the trial court before Rexing

       admitted to being an habitual offender:


               The Court’s policy has always been that if a Defendant admits
               the habitual offender allegations then regardless of what the
               record is, the Court will not impose the maximum sentence.
               And so that’s my policy. Now if there’s a jury finding, if we have
               a trial and there’s a jury finding, of course, you know, that’s not
               the case. I’m not going to say you are going to get the maximum
               sentence but can’t make that commitment if there’s not an
               admission. Do you understand that?


       Id. at 222. After hearing this policy and further discussing the enhancement

       with counsel and the trial court, Rexing admitted to being an habitual offender.

       Thereafter, the trial court sentenced Rexing to an advisory thirty-year sentence

       for Class A felony dealing in methamphetamine with a thirty-year enhancement


       Court of Appeals of Indiana | Memorandum Decision 82A01-1710-PC-2545 | June 14, 2018   Page 12 of 14
       for being a habitual offender, as well as concurrent terms for the lower level

       offenses.


[18]   Rexing argues that trial counsel should have objected to the enhancement

       because it violated the trial court’s “promise” that implied a lesser sentence if he

       admitted to being an habitual offender.5 But the trial court had no discretion to

       impose anything less than a thirty-year enhancement because it attached to the

       Class A felony conviction. At that time, the habitual offender enhancement

       could be no less than the advisory sentence of the offense being enhanced—

       which was thirty years—and no greater than thirty years. Ind. Code § 35-50-2-

       8(h) (2012). In this case, therefore, the only possible enhancement was thirty

       years. Had trial counsel objected, the objection would have been overruled.

       Therefore, Rexing has failed to establish prejudice and the post-conviction court

       did not err by finding that counsel was not ineffective for this reason. 6


                 II. Ineffective Assistance of Appellate Counsel
[19]   Finally, Rexing contends that the post-conviction court should have found that

       he received the ineffective assistance of appellate counsel. To establish




       5
        The trial court explicitly factored Rexing’s habitual offender admission into its decision to impose only an
       advisory term on the Class A felony conviction. Trial Tr. p. 230. Therefore, Rexing did, indeed, receive a
       benefit as a result of the admission.
       6
        To the extent that Rexing makes a new argument that his habitual offender admission amounted to a guilty
       plea that was not knowing and voluntary, we note that he makes no claim that he was poorly advised by
       counsel on this issue. Instead, he claims he was poorly advised by the trial court. Therefore, this is not a
       proper claim of ineffective assistance and amounts to a new freestanding claim that he did not raise in his
       post-conviction petition. Consequently, we will not consider it. Allen v. State, 749 N.E.2d 1158, 1171 (Ind.
       2001).

       Court of Appeals of Indiana | Memorandum Decision 82A01-1710-PC-2545 | June 14, 2018             Page 13 of 14
       ineffective assistance of appellate counsel, the petitioner must show that

       (1) appellate counsel was deficient in his or her performance, and (2) the

       deficiency resulted in prejudice. Hollowell v. State, 19 N.E.3d 263, 269 (Ind.

       2014). Failure to satisfy either prong will cause the claim to fail. Henley v. State,

       881 N.E.2d 639, 644 (Ind. 2008). To satisfy the second prong, the defendant

       must show a reasonable probability that, but for counsel’s errors, the result of

       the proceeding would have been different. Id.


[20]   Rexing claims, essentially, that appellate counsel should have argued in his

       direct appeal that trial counsel was ineffective for all the reasons already

       explored in this decision. Initially, we note that we have already found that

       these claims lack merit. Moreover, these claims were still available to be raised

       in post-conviction proceedings and could have been developed with a better

       record. Finally, appellate counsel did raise several, much stronger claims in

       Rexing’s direct appeal. Under these circumstances, the post-conviction court

       did not err by finding that Rexing did not receive the ineffective assistance of

       appellate counsel.


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


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1710-PC-2545 | June 14, 2018   Page 14 of 14
