 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                      Aug 12 2014, 9:57 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                               ATTORNEYS FOR APPELLEE:

CLARK W. HOLESINGER                                   GREGORY F. ZOELLER
Valparaiso, Indiana                                   Attorney General of Indiana

                                                      MICHAEL GENE WORDEN
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA

ERIC WILLIAM STAHL,                                   )
                                                      )
       Appellant-Defendant,                           )
                                                      )
                vs.                                   )      No. 45A04-1303-PC-137
                                                      )
STATE OF INDIANA,                                     )
                                                      )
       Appellee-Plaintiff.                            )


         APPEAL FROM THE LAKE SUPERIOR COURT CRIMINAL DIVISION 2
                     The Honorable Clarence D. Murray, Judge
                         Cause No. 45G02-1109-PC-005


                                           August 12, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       Eric William Stahl appeals from the denial of post-conviction relief from his 1992

conviction for murder and felony robbery, presenting the following restated issues for

review:

       1.     Did Stahl receive ineffective assistance of trial counsel regarding
              counsel’s advice as to the maximum possible sentence faced by Stahl?

       2.     Did Stahl receive ineffective assistance of appellate counsel?

       We affirm.

       The underlying facts were set out by our Supreme Court in Stahl’s 1993 direct

appeal, as follows:

       Louise and James McIntire operated a retail motorcycle business in Hobart,
       Indiana. In mid-July 1988, Stahl discussed the purchase of a motorcycle from
       the shop. Stahl returned to the shop on July 29, left a $100 check as a deposit,
       and indicated that he would return the following day to take delivery. After
       a telephone call to the bank about the check, Stahl was advised that he would
       be required to pay with cash or a certified check.

       Stahl returned to the store on Saturday morning, July 30, a day the store
       would normally close at 3:30. He confirmed his desire to purchase the
       motorcycle and offered the one he already owned in trade. He telephoned
       three times during the day to discuss taking delivery of the new motorcycle.
       At approximately 4:30 that afternoon, Stahl returned to the store and stayed
       until after 6:00. At around 5:00, Mr. McIntire spoke with his wife by
       telephone, telling her that Stahl was in the shop and that they were waiting
       for the purchase money to be delivered by a cashier. When later telephone
       calls to the shop went unanswered, Mrs. McIntire went to the shop and found
       her husband dead on the bathroom floor. Both the motorcycle that Stahl had
       been negotiating to purchase and all copies of the documents pertaining to
       that purchase were missing from the shop.

       The next day, Stahl was questioned by the police. He admitted being in the
       store between 4:30 and 6:00. He stated that he had paid for the motorcycle
       with cash and that just before he left the building, a white male entered with
       a weapon hidden under his belt. Additionally, Stahl turned over his copies of

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       the sales documents on the motorcycle. After reviewing the documents, the
       victim’s son testified that this paperwork was not signed by his father and
       was not completed in the same manner that his father would have completed
       it. A handwriting expert later identified some of the victim’s purported
       handwriting on these documents as belonging to Stahl and not the victim.
       Finally, two witnesses testified at trial that Stahl had admitted shooting the
       victim.

Stahl v. State, 616 N.E.2d 9, 10-11 (Ind. 1993) (footnote omitted). In his direct appeal,

Stahl challenged the refusal of a tendered instruction, as well as the admission of alleged

hearsay statements of the victim. The Supreme Court affirmed the trial court in all respects.

On September 7, 2011, Stahl filed his PCR petition, which the trial court denied following

a hearing.

       In his PCR petition, Stahl alleged that he received ineffective assistance of trial and

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

petitioner must demonstrate both that counsel’s performance was deficient and that the

petitioner was prejudiced thereby. Bethea v. State, 983 N.E.2d 1134 (Ind. 2013) (citing

Strickland v. Washington, 466 U.S. 668 (1984)); see also Taylor v. State, 840 N.E.2d 324,

331 (Ind. 2006) (the failure to satisfy either component will cause an ineffective assistance

of counsel claim to fail). This is the so-called Strickland test. Counsel’s performance is

deficient if it falls below an objective standard of reasonableness, “committing errors so

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

Id. at 1138. To establish the requisite prejudice, a petitioner must show there is “a

reasonable probability that, but for counsel’s errors, the result of the proceeding would

have been different.” Id. “A reasonable probability is a probability sufficient to undermine

                                              3
confidence in the outcome.” Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013). The

two elements of Strickland are separate and independent inquiries. Thus, if it is easier to

dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course

should be followed. Helton v. State, 907 N.E.2d 1020 (Ind. 2010).

                                              1.

       We begin with Stahl’s claim that he received ineffective assistance of trial counsel.

Under Issue II in his brief, Stahl frames this issue as: “Was Petitioner denied the effective

assistance of Counsel at either the trial level or the appellate level?” Brief of Appellant at

15. He then claims that he was advised by his trial counsel that he faced a maximum

possible sentence of sixty years, which was less than the eighty years the trial court actually

imposed. Even if this is true, Stahl does not identify the prejudice he suffered as a result

of this error, much less support his case with legal argument. Therefore, he has not satisfied

the showing of prejudice required in order to prevail on a claim of ineffective assistance of

trial counsel. Helton v. State, 907 N.E.2d 1020.

                                              2.

       We turn now to Stahl’s claims of ineffective assistance of appellate counsel. We

review claims of ineffective assistance of appellate counsel utilizing the same standard that

is used for claims pertaining to trial counsel, i.e., the petitioner must show appellate

counsel’s performance was deficient and that the deficiency resulted in prejudice. Garrett

v. State, 992 N.E.2d 710 (Ind. 2013). Claims of ineffective assistance of appellate counsel

“generally fall into three basic categories: (1) denial of access to an appeal, (2) waiver of

                                              4
issues, and (3) failure to present issues well.” Id. at 724 (quoting Reed v. State, 856 N.E.2d

1189, 1195 (Ind. 2006)). Stahl’s claim falls into the second category.1 He contends that,

in sentencing him, the trial court “did take things into account which were improper,

including factors which are elements of the crimes for which Petitioner was convicted [.]”

Brief of Appellant at 17. Specifically, he claims (1) the trial court cited elements of the

offenses of which he was convicted as aggravating circumstances, (2) considered evidence

that was presented at the sentencing hearing but had not been introduced at trial and not

disclosed to Stahl until the day of the sentencing hearing, (3) considered unrelated

misconduct in a different state, and (4) noted that Stahl took advantage of an elderly victim.

According to Stahl, had appellate counsel raised these issue on direct appeal, “there is a

reasonable probability that the appellate court would have granted relief to petitioner and

that the facts shown are sufficient to undermine confidence in the outcome that the Court

did breach in its sentencing order.” Id. at 18-19.

        To prevail on a claim of ineffective assistance of counsel for failing to raise an issue

on appeal, “the defendant must overcome the strongest presumption of adequate assistance,

and judicial scrutiny is highly deferential.” Garrett v. State, 992 N.E.2d at 724 (quoting




1
  Stahl also includes in this discussion the allegation “that at no time did [Stahl] have any contact with his
appointed appellate Counsel.” Brief of Appellant and 17. If this was intended as an argument that he
received ineffective assistance of appellate counsel because counsel did not have contact with him, it falls
considerably short of the requirements of Rule 46 (A)(8) of the Indiana Rules of Appellate Procedure, which
provides that contentions must be supported by cogent argument and reasoning, complete with citation to
authority. Therefore, the argument is waived. See Harman v. State, 4 N.E.3d 209 (Ind. Ct. App. 2014),
trans. denied.
                                                      5
Ben–Yisrayl v. State, 738 N.E.2d 253, 260–61 (Ind. 2000), cert. denied, 534 U.S. 1164

(2002)). We apply the following test when evaluating the performance element of the

Strickland test: (1) Are the unraised issues “significant and obvious from the face of the

record”, and (2) are the unraised issues “clearly stronger” than the raised issues? Id. If this

analysis demonstrates deficient performance, then we evaluate the prejudice element by

examining whether “the issues which ... appellate counsel failed to raise would have been

clearly more likely to result in reversal or an order for a new trial.” Id. (Bieghler v. State,

690 N.E.2d 188, 194 (Ind. 1998), cert. denied, 525 U.S. 1021) (quotation omitted).

       Stahl first complains that appellate counsel rendered ineffective assistance in failing

to appeal the trial court’s citing elements of the offenses of which he was convicted as

aggravating factors. In the present posture, he is required to do more than allege trial court

error; he must explain why the unraised issue was “significant and obvious” and how the

issue is “clearly stronger” than the issues raised on direct appeal. See, e.g., Reed v. State,

856 N.E.2d at 1196 and 1198, respectively. In fact, his argument on all of the claims raised

in this category suffer from the same fatal deficiencies. The issues are raised in the context

of the ineffective assistance of appellate counsel and require argument and analysis

concerning the legal viability and relative strength of those arguments vis-à-vis the issues

raised on direct appeal. Yet, Stahl’s argument, such as it is, is devoid of any discussion of

these matters and indeed seems more appropriate for a direct-appeal challenge to the

reasonableness of the sentence.      In short, Stahl identifies the issues and states the

conclusions, but provides no legal argument germane to the issue of ineffective assistance

                                              6
of appellate counsel which guides us from one to the other. The issue of the ineffective

assistance of appellate counsel is therefore waived. See Lyles v. State, 834 N.E.2d 1035

(Ind. Ct. App. 2005), trans. denied; App. R. 46(a)(8).

       Judgment affirmed.

       MATHIAS, J., and PYLE, J., concur.




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