Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                         FILED
any court except for the purpose of                         Jan 30 2013, 8:51 am
establishing the defense of res judicata,
collateral estoppel, or the law of the                             CLERK
                                                                 of the supreme court,

case.                                                            court of appeals and
                                                                        tax court




APPELLANT PRO SE:                                ATTORNEYS FOR APPELLEE:

KERRY L. WILLIAMS                                GREGORY F. ZOELLER
Carlisle, Indiana                                Attorney General of Indiana

                                                 IAN MCLEAN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

KERRY L. WILLIAMS,                               )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 20A03-1111-PC-519
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE ELKHART SUPERIOR COURT
                       The Honorable George W. Biddlecome, Judge
                             Cause No. 20D03-1010-PC-21



                                      January 30, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Kerry L. Williams, pro se, appeals the post-conviction court’s denial of his

petition for post-conviction relief. Williams raises seven issues which we consolidate

and restate as:

       I.     Whether Williams was deprived of a procedurally fair post-
              conviction hearing;

       II.    Whether the court erred by denying Williams’s motion to dismiss.

       III.   Whether the post-conviction court erred in denying Williams’s
              petition for relief based upon his argument that the State improperly
              suppressed evidence; and

       IV.    Whether Williams was denied the effective assistance of trial
              counsel.

We affirm.

                                         FACTS

       On August 31, 2006, Elkhart City Police Officer James Anderson, who was

working as an undercover officer, and a confidential informant made contact with

Williams. Williams and the confidential informant had a short conversation and then

Williams entered the vehicle which was equipped with a recording device and being

driven by Officer Anderson.      Officer Anderson followed Williams’s directions and

eventually arrived at a residence in Elkhart City. Officer Anderson gave Williams $250,

and Williams returned with a baggie containing crack cocaine.

                             COURSE OF PROCEEDINGS

       On December 27, 2006, the State charged Williams with Count I, dealing cocaine

weighing three grams or more as a class A felony; and Count II, dealing cocaine as a

class B felony. On January 4, 2007, Williams chose to proceed pro se, and the court

                                            2
appointed standby counsel.      In early January, the prosecutor made a plea offer to

Williams. At a hearing on January 25, 2007, Williams acknowledged the offer and

indicated that he wanted to proceed with trial.

       Beginning on January 29, 2007, the court held a jury trial. At trial, the parties and

the court engaged in a discussion regarding State’s Exhibit 2 which was the portion of the

audio recording related to the transaction from August 31, 2006. Williams argued that

State’s Exhibit 2 was incomplete and that his copy was blank.               The prosecutor

acknowledged that “there was other stuff that happened when they were driving around

earlier; but [State’s Exhibit 2] relates to the transaction . . . .” Trial Transcript at 167.

Williams eventually admitted that he listened to all of State’s Exhibit 2, and objected

because “[i]t’s not the original.” Id. The prosecutor indicated that the State had a copy

of the entire transaction and that he had told Williams’s standby counsel that he would

provide him a copy. According to Officer Anderson’s testimony, State’s Exhibits 3A and

3B consisted of an audio recording of the complete encounter from when Williams

entered the vehicle until he exited the vehicle. The court stated: “If [the defense] want to

have the balance of it played under the Rule of Completeness, I will allow them to do

that.” Id. at 169.

       The next day, Williams indicated that he had listened to both State’s Exhibit 2 as

well as the recording of the entire episode. While Officer Anderson testified that State’s

Exhibits 3A and 3B constituted an audio recording of the encounter from when Williams

entered the vehicle until Williams exited the vehicle, Williams appeared to argue that

there was additional discussion that was not included on State’s Exhibits 3A and 3B

                                             3
including that Williams asked Officer Anderson whether he was an undercover officer.

When asked by the trial court whether he wanted the entire recording played, Williams

indicated that he did not and that he only wanted State’s Exhibit 2 played for the jury.

State’s Exhibit 2 was played for the jury.

        The State introduced State’s Exhibit 4 which was the laboratory report from the

Berrien County Forensic Laboratory in which the crack cocaine was identified and

measured. Williams objected on the basis that he signed a stipulation that the content of

the baggie was cocaine base but that he did not stipulate to the weight of the cocaine.1

The trial court referenced the stipulation and indicated that there was no agreement

because there was no meeting of the minds. Following a recess, the parties provided a

document signed by Williams that stated: “The parties stipulate and agree that the drugs

contained in State’s Exhibit 1 consist of 5.910 grams of crack cocaine. The Defendant

waives the testimony of the lab personnel and accepts their written findings, State’s

Exhibit 4, into evidence.” Id. at 222. Williams confirmed that this was his agreement,

and the court admitted State’s Exhibit 4.

        The jury found Williams guilty of Count I, dealing in cocaine weighing three

grams or more as a class A felony. The court entered a judgment of conviction of dealing

in cocaine weighing three grams or more as a class A felony and dismissed Count II. The

court sentenced Williams to forty years.



        1
          The initial stipulation was dated January 26, 2007, and as read by the trial court stated: “I, Kerry
L. Williams, hereby agree to not call the lab people in my case, 20D03-06-FA-64, and to stipulate to the
identity of the cocaine in this case. I hereby affirm under the penalties for perjury that the above
representations are true and accurate. Signed Kerry L. Williams, pro se.” Trial Transcript at 222.
                                                      4
      In August 2007, Williams filed a motion to file a belated appeal, which this court

granted. After various motions and orders, this court issued an order dated March 4,

2008, which ordered Williams to file his brief and appendix within thirty days and stated

that failure to timely file the appellant’s brief and appendix would subject the appeal to

dismissal. By April 25, 2008, Williams had still not filed an appellant’s brief, and this

court dismissed the appeal on April 28, 2008.

      On October 18, 2010, Williams, pro se, filed a petition for post-conviction relief

alleging that there were numerous grounds for setting aside his conviction. Williams’s

petition indicated that he had not retained an attorney and that he did not wish to have a

public defender represent him. On November 24, 2010, the State filed an answer to

Williams’s petition. On December 8, 2010, Williams filed a motion to amend his petition

for post-conviction relief, a motion for issuance of subpoenas, and other motions.2 On

December 16, 2010, Williams filed a motion to dismiss which requested the court to

vacate his conviction on the basis that the charging information was defective.

      On January 13, 2011, the court held a preliminary hearing on Williams’s motions.

During the hearing, the court and Williams engaged in a discussion regarding the

witnesses mentioned in his motion for issuance of subpoenas. The court explained to

Williams why it refused to grant subpoenas with respect to certain witnesses. The court

also denied Williams’s motion to dismiss.

      After the hearing, the court issued a subpoena to Michael K. Banik, who had been

the deputy prosecutor at Williams’s trial. On March 21, 2011, Williams filed another

      2
          The record does not contain the motion for issuance of subpoenas filed on December 8, 2010.

                                                   5
motion for issuance of subpoenas in which Williams requested subpoenas for

approximately twenty people. An entry in the chronological case summary dated March

25, 2011, states: “MOTION denied in all particulars except that in so far as it seeks

issuance of SUBPOENA DUCES TECUM to Attorney Michael Banik, which Petition is

granted in that regard.” Appellant’s Appendix at 6.

          On April 7, 2011, the court held an evidentiary hearing. On May 25, 2011,

Williams filed a thirty-six page document titled “Closing Argument by Affidavit” which

included an “Affidavit Offer of Proof for Exclusion of Witnesses” and an “Offer of Proof

Affidavit for Unavailable Witness.” Id. at 45-80. On July 7, 2011, Williams filed a

thirty-six page memorandum of law in support of post-conviction relief.

          On October 3, 2011, the court denied Williams’s petition. The court’s order

states:

          7.    In his PETITION FOR POST CONVICTION RELIEF, [Williams]
                alleges “subversion of the legal process” because Michael Banik,
                former deputy prosecuting attorney, communicated with stand by
                counsel when [Williams] was representing himself; that stand-by
                counsel was ineffective for failing to communicate with [Williams];
                that [Williams] was denied the right to confront witnesses,
                specifically lab personnel regarding the illicit drugs admitted into
                evidence in his trial; that the evidence was insufficient to sustain the
                verdict of guilty; and, that the charging information was not
                sufficient to apprise him of the charges against him.

          8.    In the instant case, [Williams] chose to represent himself during trial
                and on direct appeal. Because he represented himself, he cannot
                bring a Sixth Amendment claim of ineffective assistance of counsel.
                Wright v. State, 663 N.E.2d 210, 212 (Ind. Ct. App. 1996). Pro se
                litigants are held to the same standard as trained counsel and are
                required to follow procedural rules. Evans v. State, 809 N.E.2d 338,
                344 (Ind. Ct. App. 2004), trans. denied. A trial court is not required
                to guide pro se litigants through the judicial system. Id. Even if the
                court were to consider [Williams’s] claim of ineffective assistance of
                                                6
                counsel with respect to stand-by counsel, [Williams] presented no
                credible evidence to support this claim.

       9.       [Williams’s] remaining allegations regard issues which were known
                at the time of the original trial and which should have been raised on
                direct appeal. Consequently, they are not available for review in this
                post conviction proceeding. Timberlake v. State, 753 N.E.2d 591,
                597 (Ind. 2001). Moreover, even if [Williams’s] allegations were
                considered on the merits, Michael Banik, former deputy prosecuting
                attorney, testified at the post conviction hearing that the parties
                entered into a stipulation that the substance being offered into
                evidence at trial was cocaine and the weight of that cocaine.
                (Transcript, p. 22, ll 12-16). Mr. Banik further testified that he
                handed the stipulation to stand by counsel and [Williams] at counsel
                table and it was signed by [Williams]. (Tr., p. 38, ll 5-16). No
                further evidence was admitted regarding [Williams’s] contentions.

       10.      In order to prevail on a petition for post-conviction relief, a
                petitioner must establish by a preponderance of the evidence that he
                is entitled to the relief claimed. In this case, [Williams] has failed to
                satisfy this burden upon the facts of this case and upon the law
                applicable to the issues raised in his petition.

Id. at 14-15.

                                  STANDARD OF REVIEW

       Before discussing Williams’s allegations of error, we note that although Williams

is proceeding pro se, such litigants are held to the same standard as trained counsel and

are required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct.

App. 2004), trans. denied. We also observe that the purpose of a petition for post-

conviction relief is to raise issues unknown or unavailable to a defendant at the time of

the original trial and appeal. Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006). A post-

conviction petition is not a substitute for an appeal.          Id.   Further, post-conviction

proceedings do not afford a petitioner a “super-appeal.” Id. The post-conviction rules


                                                7
contemplate a narrow remedy for subsequent collateral challenges to convictions. Id. If

an issue was known and available but not raised on appeal, it is waived. Id.

       We also note the general standard under which we review a post-conviction

court’s denial of a petition for post-conviction relief. 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); Ind. Post-Conviction Rule

1(5). When appealing from the denial of post-conviction relief, the petitioner stands in

the position of one appealing from a negative judgment. Fisher, 810 N.E.2d at 679. On

review, we will not reverse the judgment unless the evidence as a whole unerringly and

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

Id. Further, the post-conviction court in this case entered findings of fact and conclusions

thereon in accordance with Indiana Post-Conviction Rule 1(6). Id. “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.” Id.

In this review, we accept findings of fact unless clearly erroneous, but we accord no

deference to conclusions of law. Id. The post-conviction court is the sole judge of the

weight of the evidence and the credibility of witnesses. Id.

                                         ISSUES

                                             I.

       The first issue is whether Williams was deprived of a procedurally fair post-

conviction hearing. Williams appears to argue that the post-conviction court denied him

the opportunity to offer supporting evidence. Williams points to the post-conviction

                                             8
court’s statement in its order that “No further evidence was admitted regarding

[Williams’s] contentions.” Appellant’s Appendix at 15. Williams points out that he filed

a “closing argument by affidavit as well as a memorandum of law in support of his post

conviction petition for post conviction relief,” and argues that the post-conviction court

“refused to recognize or consider them as evidence.” Appellant’s Brief at 40 (citation

omitted). Williams also points out that he filed an “offer of proof for exclusion of

witnesses” and an “offer of proof for unavailable witness.” Id. at 41. Further, Williams

alleges that the “trial court mischaracterized direct testimony of State’s witnesses as well

as claims of impartiality.” Id. at 47.

       The State argues that the legal contentions and conclusions in the “Closing

Argument by Affidavit” and “Affidavit Offer of Proof for Exclusion of Witnesses” are

not evidence and that the post-conviction court was not required to regard them as proof

of any fact. Appellee’s Brief at 25. In other words, the State argues that the post-

conviction court “simply and properly did not consider Williams’ arguments to be

evidence.” Id.

       Williams does not cite to a specific portion of the documents that he filed with the

post-conviction court or develop an argument that he suffered any prejudice.

Consequently, this issue is waived. See, e.g., Cooper v. State, 854 N.E.2d 831, 834 n.1

(Ind. 2006) (holding that the defendant’s contention was waived because it was

“supported neither by cogent argument nor citation to authority”); Shane v. State, 716

N.E.2d 391, 398 n.3 (Ind. 1999) (holding that the defendant waived argument on appeal

by failing to develop a cogent argument).

                                             9
      Williams also appears to argue that the post-conviction court abused its discretion

in refusing to issue subpoenas without providing a reason for the refusal. The State

argues that Williams’s arguments were known and available on direct appeal and are not

grounds for post-conviction relief, that the witnesses could not have provided relevant

and probative testimony, and that the post-conviction court entered a finding on the

record and ruled on each request for a subpoena.

      Ind. Post-Conviction Rule 1(9)(b) provides that “[i]f the pro se petitioner requests

issuance of subpoenas for witnesses at an evidentiary hearing, the petitioner shall

specifically state by affidavit the reason the witness’ testimony is required and the

substance of the witness’ expected testimony.” The Rule also provides that “[i]f the court

finds the witness’ testimony would be relevant and probative, the court shall order that

the subpoena be issued. If the court finds the proposed witness’ testimony is not relevant

and probative, it shall enter a finding on the record and refuse to issue the subpoena.”

Ind. Post-Conviction Rule 1(9)(b).

      As previously mentioned, Williams filed a motion for issuance of subpoenas on

December 8, 2010, and the record does not contain a copy of this motion. At the January

13, 2011 hearing on the motion, the court explained to Williams why it refused to grant

subpoenas with respect to several witnesses. For example, the court refused to grant a

subpoena for Stephanie Burgess because she was no longer the clerk of the court and

there were other ways to authenticate documents. The court also informed Williams that

he would not allow Williams to relitigate the case. On March 21, 2011, Williams filed

another motion for issuance of subpoenas in which Williams requested subpoenas for

                                           10
approximately twenty people. Based upon the transcript from the January 13, 2011

hearing, it appears that some of the witnesses mentioned in Williams’s March 21, 2011

motion were already addressed by the court at the January 13, 2011 hearing. Further, at

the April 7, 2011 hearing, the court stated: “There is a big difference between allowing

you to file an Amended Petition For Post-Conviction Relief and allowing you to cause

the production of witnesses from all over the Department of Correction to establish

something that does not bear upon any legitimate issue raised in these post-conviction

proceedings.” Transcript of April 7, 2011 Hearing at 46. We also observe that Williams

does not specify on appeal which witness or witnesses the trial court failed to address in

findings or otherwise. Williams also does not develop an argument that the court erred in

refusing to grant a subpoena to any specific witness or witnesses.                         Under the

circumstances, we cannot say that reversal is warranted on this basis.

                                                  II.

       The next issue is whether the court erred by denying Williams’s motion to dismiss.

Williams argues that the post-conviction court abused its discretion “by denying [his]

motion to dismiss as it was statutory not discretionary.”                Appellant’s Brief at 47.

Williams’s entire argument appears to be that his sentence should be vacated “as dictated

by Statute I.C. 35-34-1-2(a)[3] as the charging information was defective pursuant to


       3
           Ind. Code § 35-34-1-2(a) provides:

       The indictment or information shall be in writing and allege the commission of an offense
       by:

       (1)       stating the title of the action and the name of the court in which the
                 indictment or information is filed;

                                                  11
statute IC. 35-34-1-6.”4 Id. at 48. The State argues that Williams’s motion was an

improper vehicle for litigating his post-conviction claims and that the claim was available

on direct appeal and is not grounds for post-conviction relief.



       (2)       stating the name of the offense in the words of the statute or any other
                 words conveying the same meaning;

       (3)       citing the statutory provision alleged to have been violated, except that
                 any failure to include such a citation or any error in such a citation does
                 not constitute grounds for reversal of a conviction where the defendant
                 was not otherwise misled as to the nature of the charges against the
                 defendant;

       (4)       setting forth the nature and elements of the offense charged in plain and
                 concise language without unnecessary repetition;

       (5)       stating the date of the offense with sufficient particularity to show that
                 the offense was committed within the period of limitations applicable to
                 that offense;

       (6)       stating the time of the offense as definitely as can be done if time is of
                 the essence of the offense;

       (7)       stating the place of the offense with sufficient particularity to show that
                 the offense was committed within the jurisdiction of the court where the
                 charge is to be filed;

       (8)       stating the place of the offense as definitely as can be done if the place is
                 of the essence of the offense; and

       (9)       stating the name of every defendant, if known, and if not known, by
                 designating the defendant by any name or description by which he can be
                 identified with reasonable certainty.
       4
           Ind. Code § 35-34-1-6 provides:

       (a)       An indictment or information is defective when:

                 (1)     it does not substantially conform to the requirements of section 2(a) of
                         this chapter;

                 (2)     the allegations demonstrate that the court does not have jurisdiction of
                         the offense charged; or

                 (3)     the statute defining the offense charged is unconstitutional or otherwise
                         invalid.

                                                      12
       Again, we cannot say that Williams has developed a cogent argument on appeal.

Consequently, this issue is waived. See, e.g., Cooper, 854 N.E.2d at 834 n.1; Shane, 716

N.E.2d at 398 n.3. Further, we cannot say that reversal is warranted based upon the

charging information and the statutes which Williams cites.

                                                 III.

       The next issue is whether the post-conviction court erred in denying Williams’s

petition for relief based upon his argument that the State improperly suppressed evidence.

Williams argues that the State failed to disclose exculpatory evidence. He contends that

the prosecutor failed to disclose “portions of a sound recording prior to State’s key

witness willfully destroying the material exculpatory evidence that could have affected

the outcome of the trial . . . .” Appellant’s Brief at 32.

       The State argues that Williams’s claim is based entirely on the record of his

original trial that was available to him on direct appeal and is therefore not grounds for

post-conviction relief. The State contends that even if Williams’s claim was a cognizable


       (b)    An information is defective if:

              (1)     the defendant was a grand jury target identified under IC 35-34-2-
                      12(a)(1);

              (2)     the offense alleged was identified on the record under IC 35-34-2-
                      12(a)(2) as an offense that the defendant allegedly committed; and

              (3)     the grand jury proceeded to deliberate on whether to issue an indictment,
                      and voted not to indict the defendant for the offense identified on the
                      record under IC 35-34-2-12(a)(2).

              However, if the prosecuting attorney shows that there is newly discovered
              material evidence that was not presented to the grand jury before the grand jury’s
              failure to indict, then the information is not defective.

       (c)    Except as provided in section 5 of this chapter, an indictment or information or a
              count thereof shall be dismissed upon motion when it is defective.
                                                 13
ground for post-conviction relief, his assertions are not supported by the record because

the complete recording was available. The State also argues that to the extent Williams’s

claims may be construed to assert that portions of events related to his drug dealing were

not recorded at all, Williams did not present evidence to this effect at trial or at the post-

conviction hearing.

       In Brady v. Maryland, the United States Supreme Court held that “the suppression

by the prosecution of evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment, irrespective of the good

faith of the prosecution.” 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-1197 (1963). “To

prevail on a Brady claim, a defendant must establish: (1) that the prosecution suppressed

evidence; (2) that the evidence was favorable to the defense; and (3) that the evidence

was material to an issue at trial.” Minnick v. State, 698 N.E.2d 745, 755 (Ind. 1998)

(citing Brady, 373 U.S. at 87, 83 S. Ct. 1194), reh’g denied, cert. denied, 528 U.S. 1006,

120 S. Ct. 501 (1999). A defendant must show that the State suppressed the evidence

either willfully or inadvertently and that prejudice ensued. Skinner v. Switzer, 131 S. Ct.

1289, 1300 (2011). The State will not be found to have suppressed material information

if that information was available to a defendant through the exercise of reasonable

diligence. Conner v. State, 711 N.E.2d 1238, 1246 (Ind. 1999), reh’g denied, cert.

denied, 531 U.S. 829, 121 S. Ct. 81 (2000).

       “Evidence is ‘material’ only if there is a ‘reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been

different.’” Minnick, 698 N.E.2d at 755 (quoting United States v. Bagley, 473 U.S. 667,

                                              14
685, 105 S. Ct. 3375, 3385 (1985)). A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Bagley, 473 U.S. at 682, 105 S. Ct. at 3383.

“Favorable evidence” includes both exculpatory evidence and impeachment evidence.

See Skinner, 131 S. Ct. at 1300; Prewitt v. State, 819 N.E.2d 393, 401 (Ind. Ct. App.

2004), trans. denied.

       The record reveals that Officer Anderson testified that State’s Exhibits 3A and 3B

consisted of the complete encounter from when Williams entered the vehicle until he

exited the vehicle, and Williams indicated at trial that he listened to State’s Exhibits 3A

and 3B. Based upon Officer Anderson’s testimony, the State did not suppress evidence.

To the extent that Williams appears to argue that a recording of the complete encounter

was not provided by the State, we observe that Williams does not specify on appeal the

contents of the audio recording he alleges was missing. Based upon our review of the

record, we cannot say that the evidence as a whole unerringly and unmistakably leads to a

conclusion opposite that reached by the post-conviction court.

                                           IV.

       The next issue is whether Williams was denied the effective assistance of trial

counsel. Ordinarily a defendant who elects to proceed pro se with the assistance of

standby counsel cannot subsequently claim that counsel was ineffective. See Carter v.

State, 512 N.E.2d 158, 163-164 (Ind. 1987). In Carter, the Indiana Supreme Court

observed that while the trial court chose to describe the defendant as “co-counsel,” the

facts showed that the defendant represented himself with the help of the public defender

acting as a liberally defined “standby counsel.” Id. at 163. The Court held that when a

                                            15
defendant takes control of his own defense,5 he waives his right to allege a Sixth

Amendment violation with respect to standby counsel’s adequacy. Id. The Court held:

               Accepting [the defendant’s] allegation of ineffectiveness of counsel
        would distort the Sixth Amendment. He has attempted to take the benefits
        of his constitutional right to self-representation without accepting the
        burdens which are inherently attached. When he chose to circumscribe “the
        guiding hand of counsel” and navigate his own defense, [the defendant]
        voluntarily traveled into the murky waters outside the safe harbor of the
        Sixth Amendment and sank any claim of ineffective assistance of counsel.

                Practical considerations also support this conclusion. To allow [the
        defendant] to participate in his defense to such an extent and then to assert
        this claim would encourage conduct contrary to the tenets of our judicial
        system. One of the essential reasons for counsel is the orderly pursuit of
        justice, a[n] objective which is at risk whenever an accused plays the role of
        courtroom advocate. Defense efforts may be repetitious or contradictory
        when the defendant, as co-counsel, and his appointed attorney follow
        different legal routes. A particularly manipulative defendant might
        contravene his public defender’s actions simply to create appealable error.
        Moreover, the law will not recognize errors which could have been
        remedied at the trial level. As co-counsel, [the defendant] had the duty to
        speak if counsel was inappropriately silent.

Id. at 164. The Court noted that its rejection of the defendant’s ineffectiveness claim

rested upon his own substantial control of the defense. Id. The Court also stated that

“[h]ad counsel been a true advocate within the meaning of the Sixth Amendment, rather

than a tool for implementing [the defendant’s] self-representation, [the defendant]

certainly would have been entitled to present this claim.” Id.

        The record reveals that Williams waived his right to an attorney and was

appointed standby counsel. Williams examined witnesses, entered into stipulations, and

        5
          The Court stated that the defendant “not only was actively participating in his own defense but
effectively managing the activities of the public defender. This was not a situation in which the public
defender listened to the advice of his client and then pursued independently the route which he believed,
in his professional judgment, was most beneficial. [The defendant] defined the public defender’s
responsibilities and had the final say on all trial decisions.” 512 N.E.2d at 164.
                                                   16
made arguments to the jury. Based upon the record, we conclude that Williams had

substantial control of the defense. Thus, Williams waived his right to allege a Sixth

Amendment violation with respect to counsel’s adequacy.

       To the extent that Williams suggests that at times his standby counsel was more

than a tool for implementing Williams’s self-representation, we will address his

arguments.    Generally, to prevail on a claim of ineffective assistance of counsel, a

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

the petitioner was prejudiced by the deficient performance. Ben-Yisrayl v. State, 729

N.E.2d 102, 106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 2064 (1984), reh’g denied), reh’g denied, cert. denied, 534 U.S. 830, 122 S. Ct.

73 (2001). A counsel’s performance is deficient if it falls below an objective standard of

reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816,

824 (Ind. 2002). To meet the appropriate test for prejudice, the petitioner 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. Perez v. State, 748 N.E.2d 853, 854

(Ind. 2001). Failure to satisfy either prong will cause the claim to fail. French, 778

N.E.2d at 824. Most ineffective assistance of counsel claims can be resolved by a

prejudice inquiry alone. Id.

       When considering a claim of ineffective assistance of counsel, a “strong

presumption arises that counsel rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Morgan v. State, 755

                                             17
N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance is presumed effective, and a

defendant must offer strong and convincing evidence to overcome this presumption.”

Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002). Evidence of isolated poor strategy,

inexperience, or bad tactics will not support a claim of ineffective assistance of counsel.

Clark v. State, 668 N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S.

1171, 117 S. Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second

guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986).

A.     Prosecutor’s Plea Offer

       Williams appears to argue that he was deprived his right to the effective assistance

of counsel during critical stages of the proceedings because the prosecutor provided the

plea offer to his standby counsel and not directly to him. Williams points to testimony

from the prosecutor that he provided an offer to his standby counsel and that he assumed

that his standby counsel conveyed it to Williams. The State argues that Williams is

unable to assert that his right to effective representation was violated as a ground for

post-conviction relief with respect to the plea offer or any other aspect of his case. The

State also argues that even if Williams had a constitutional interest in plea bargaining, or

even if delays in communication were cognizable as ineffective self-representation,

Williams discussed a plea offer with the State prior to trial, and would therefore be

unable to show prejudice requiring a new trial.

       The record reveals that Williams was aware of an offer prior to trial. At the end of

the January 25, 2007 hearing, Williams confirmed that he wanted to represent himself in

the upcoming trial and the following exchange occurred:

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       [Prosecutor]:        Just briefly, and given where we are today, on all
                            matters, everything that’s been said and heard, do you
                            still want to go to trial on Monday or do you want any
                            additional time?

       [Williams]:          Yeah, but we can go on Monday. I mean the things
                            that I am not going to be able to do to get in is not –
                            but I don’t have the documentation for the case or
                            whatever, it’s not going to make that much of a
                            difference.

       [Prosecutor]:        Well, I’m not asking – I’m asking that is it still your
                            desire based on where we stand today with this case
                            going forward as quickly as it is set on the Court’s
                            calendar, knowing everything you know today and
                            understanding the posture of the case today?

       [Williams]:          Yes. Get this over with. If I listen to those tapes, then
                            I might change my mind; doubt it.

       [Prosecutor]:        And you understand –

       [Williams]:          That the offer that you offered –

       [Prosecutor]:        Walking out of this courtroom today, there is no offer.
                            Correct?

       [Williams]:          Yes.

January 25, 2007 Hearing Transcript at 54-55. Under the circumstances, we cannot say

that the evidence as a whole unerringly and unmistakably leads to a conclusion opposite

that reached by the post-conviction court.

B.     Stipulation

       Williams argues that “his Sixth Amendment right under the Confrontation Clause

were [sic] violated because the State did not present the technician who ran the samples

through the laboratory[’]s equipment.” Appellant’s Brief at 27. Williams argues that he

signed a stipulation “due to a wink and nod agreement between the State and standby
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counsel in which [Williams] was forced into the arena to face armed gladiators that used

the guiding hand of standby counsel to lead [Williams] from the safe harbor of his Sixth

Amendment right to confrontation into murky waters.” Id. at 29. Williams also argues

that he signed a stipulation “only agreeing to contents not weight.” Id. at 30. The State

argues that to the extent that Williams’s arguments can be read as a claim that his standby

counsel was ineffective, such a claim is unavailable because Williams’s defense was his

own creation and not controlled by standby counsel.

       The record reveals that there was a stipulation dated January 26, 2007, which

mentioned only the identity of the cocaine and not the amount, and that the trial court

referenced the stipulation and indicated that there was no agreement because there was no

meeting of the minds. Following a recess, the parties provided a document signed by

Williams that stated: “The parties stipulate and agree that the drugs contained in State’s

Exhibit 1 consist of 5.910 grams of crack cocaine. The Defendant waives the testimony

of the lab personnel and accepts their written findings, State’s Exhibit 4, into evidence.”

Trial Transcript at 222. The court asked Williams whether this was his agreement, and

Williams responded: “Yes, it is.” Id. The court then asked if the agreement was to be

interpreted to mean that the lab report may be admitted into evidence without objection

and displayed to the jury, and Williams stated: “That’s correct.” Id. Consequently, the

record reveals that Williams agreed to the admission of the lab report.         Under the

circumstances, we cannot say that the evidence as a whole unerringly and unmistakably

leads to a conclusion opposite that reached by the post-conviction court.



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                                      CONCLUSION

       For the foregoing reasons, we affirm the post-conviction court’s denial of

Williams’s petition for post-conviction relief.

       Affirmed.

BAILEY, J., and VAIDIK, J., concur.




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