MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                               Oct 07 2015, 9:42 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


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

Victoria Christ                                          Brian Reitz
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Shepell Orr,                                             October 7, 2015
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         45A04-1503-PC-87
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Respondent.                                     Judge

                                                         The Honorable Kathleen A.
                                                         Sullivan, Magistrate
                                                         Trial Court Cause No.
                                                         45G01-1302-PC-1



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-87| October 7, 2015    Page 1 of 18
                                       Statement of the Case
[1]   Shepell Orr appeals the post-conviction court’s denial of his amended petition

      for post-conviction relief. Orr presents two issues for our review, namely,

      whether he was denied the effective assistance of trial and appellate counsel.

      We affirm.


                                 Facts and Procedural History
[2]   At approximately 12:00 a.m. on December 31, 2009, Orr entered an apartment

      building located at 3513 Guthrie in East Chicago to visit a friend, and he

      walked past four people visiting in a hallway. Approximately forty-five minutes

      later, Orr left his friend’s apartment and walked past the same four people,

      Steven Williams, Joshua Haywood, LaTonya Burnett, and Tyree Tolbert. As

      he passed by the group, Orr asked Williams, “What’s that smart remark you

      said?” Tr. at 223. Williams responded, “I don’t know you to even be saying

      anything about you.” Id. Orr then left the building, met Billy Galloway, who

      was sitting in Galloway’s truck parked across the street, and got a firearm from

      Galloway.


[3]   A few minutes later, Orr came back inside the apartment building and said to

      the group, “Folks, let me holler at you.” Id. at 225. In response, Tolbert

      walked outside with Orr. Orr then asked Tolbert “what [Williams and

      Haywood were] on.” Id. at 226. Tolbert interpreted that question to mean

      “like what [are] they about[?]” Id. Tolbert responded, “They ain’t on nothing.

      They just moved out here with they [sic] wife and kids.” Id. Orr then said to


      Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-87| October 7, 2015   Page 2 of 18
      Tolbert, “Don’t worry about it. I’m finna[1] kill everybody in this building.” Id.

      at 227. Orr then pulled out a gun and entered the apartment building. After

      Orr entered the building, Burnett ran outside, and she and Tolbert ran to a

      friend’s apartment inside a nearby building. As soon as they were inside,

      Tolbert heard multiple gunshots from the building where he had left Orr and

      the others.


[4]   A neighbor called 9-1-1, and officers arrived at the scene approximately ten

      minutes after the shootings to find Williams’ and Haywood’s dead bodies lying

      in pools of blood inside the apartment building. Williams had been shot seven

      times, and Haywood had been shot four times. There were no eyewitnesses to

      the shootings, but, after an investigation implicated Orr, police arrested him.


[5]   The State charged Orr with two counts of murder. A jury found Orr guilty as

      charged and the trial court entered a judgment of conviction accordingly. The

      trial court sentenced Orr to two consecutive terms of fifty-five years, for an

      aggregate sentence of 110 years. On direct appeal, Orr raised a single issue,

      namely, whether the trial court committed reversible error in allowing the State

      to attempt to impeach a witness with extrinsic evidence of a prior inconsistent

      statement. We affirmed Orr’s convictions. Orr v. State, 968 N.E.2d 858, 865

      (Ind. Ct. App. 2012).




      1
        “Finna” is an abbreviation of the phrase “fixing to” and means “going to.” See Urban Dictionary,
      http://www.urbandictionary.com/define.php?term=finna (last viewed September 15, 2015).

      Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-87| October 7, 2015            Page 3 of 18
[6]   On February 7, 2013, Orr filed a pro se petition for post-conviction relief. And

      on August 9, 2013, Orr, by counsel, filed an amended petition for post-

      conviction relief alleging that he was denied the effective assistance of trial and

      appellate counsel. Following a hearing, the post-conviction court denied Orr’s

      amended petition. This appeal ensued.


                                     Discussion and Decision
[7]   Orr appeals the post-conviction court’s denial of his final amended petition for

      post-conviction relief. Our standard of review is clear:


              [The petitioner] bore the burden of establishing the grounds for
              post-conviction relief by a preponderance of the evidence. See
              Ind. Post-Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d
              591, 597 (Ind. 2001). Post-conviction procedures do not afford a
              petitioner with a super-appeal, and not all issues are available.
              Timberlake, 753 N.E.2d at 597. Rather, subsequent collateral
              challenges to convictions must be based on grounds enumerated
              in the post-conviction rules. Id. If an issue was known and
              available, but not raised on direct appeal, it is waived. Id. If it
              was raised on appeal, but decided adversely, it is res judicata. Id.

              In reviewing the judgment of a post-conviction court, appellate
              courts consider only the evidence and reasonable inferences
              supporting the post-conviction court’s judgment. Hall v. State,
              849 N.E.2d 466, 468 (Ind. 2006). The post-conviction court is
              the sole judge of the evidence and the credibility of the witnesses.
              Id. at 468-69. Because he is now appealing from a negative
              judgment, to the extent his appeal turns on factual issues [the
              petitioner] must convince this court that the evidence as a whole
              leads unerringly and unmistakably to a decision opposite that
              reached by the post-conviction court. See Timberlake, 753 N.E.2d
              at 597. We will disturb the decision only if the evidence is

      Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-87| October 7, 2015   Page 4 of 18
              without conflict and leads only to a conclusion contrary to the
              result of the post-conviction court. Id.


      Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied.


[8]   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.’” Overstreet v. State, 877 N.E.2d 144, 151 (Ind.

      2007) (citation omitted).


[9]   Orr contends that he was denied the effective assistance of trial and appellate

      counsel in violation of the Sixth Amendment to the United States Constitution.

      A claim of ineffective assistance of counsel must satisfy two components.

      Strickland v. Washington, 466 U.S. 668 (1984). First, the defendant must show

      deficient performance: representation that fell 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 687-88. Second, the

      defendant must show prejudice: 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. at 694.




      Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-87| October 7, 2015   Page 5 of 18
                              Issue One: Effective Assistance of Trial Counsel

[10]   Orr first contends that he was denied the effective assistance of trial counsel.

       Specifically, Orr argues that his trial counsel failed to: (1) object to the

       erroneous jury instructions on murder and voluntary manslaughter and tender

       proper instructions; and (2) adequately impeach State’s witness Antonio Foster.

       We consider each contention in turn.


                                                    Jury Instructions

[11]   The trial court instructed the jury in relevant part as follows:

                 Instruction No. 3[2]

                 COUNT I

                 The crime of Murder is defined by statute as follows:

                 A person who knowingly or intentionally kills another human
                 being commits Murder, a felony.

                 Before you may convict the defendant of Murder, the State must
                 have proven each of the following elements:

                 1) The defendant

                 2) knowingly or intentionally
                 3) killed

                 4) Steven Williams.




       2
           Instruction No. 4 is identical to Instruction No. 3, but it names the victim as Joshua Haywood.


       Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-87| October 7, 2015                   Page 6 of 18
        If the State failed to prove each of these elements beyond a
        reasonable doubt, you must find the defendant not guilty.

                                                ***

        Instruction No. 5

        COUNTS I AND II

        The Defendant is charged with Murder. Voluntary
        Manslaughter, Class A felony, is included in Murder. If the State
        proves the Defendant guilty of Murder, you need not consider
        the included crime(s). However, if the State fails to prove the
        Defendant committed Murder, you may consider whether the
        Defendant committed Voluntary Manslaughter, Class A felony,
        which the Court will define for you.

        You must not find the Defendant guilty of more than one crime
        for each count.

        Instruction No. 6

        COUNT I

        The crime of Voluntary Manslaughter is defined by statute as
        follows:

        (a) “A person who knowingly or intentionally kills another
        human being while acting under sudden heat commits Voluntary
        Manslaughter. The offense is a Class A felony if it is committed
        by means of a deadly weapon.”

        (b) “The existence of sudden heat is a mitigating factor that
        reduces what otherwise would be Murder to Voluntary
        Manslaughter.”



Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-87| October 7, 2015   Page 7 of 18
                 Before you may convict the defendant, as charged, the State must
                 have proved each of the following elements:

                 1. The defendant

                 2. knowingly or intentionally

                 3. killed

                 4. Steven Williams

                 5. by means of a deadly weapon, and;

                 6. that the defendant did the killing while acting under sudden
                 heat.

                 If the state failed to prove each of these elements beyond a
                 reasonable doubt, you must find the defendant not guilty of
                 Voluntary Manslaughter, a Class A felony.


       Appellant’s App. at 442-45.3


[12]   Orr contends that the “instructions were erroneous” because they did not

       instruct the jury that “the State had to disprove sudden heat beyond a

       reasonable doubt before they could convict him of murder.” Appellant’s Br. at

       16. Accordingly, Orr maintains that his trial counsel was ineffective when she

       did not object to the instructions and did not tender correct instructions.




       3
           Instruction No. 7 is identical to Instruction No. 6, but it names the victim as Joshua Haywood.


       Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-87| October 7, 2015                   Page 8 of 18
[13]   The State agrees that the instructions are improper for the reasons cited by Orr.

       In particular, in Eichelberger v. State, 852 N.E.2d 631, 636 (Ind. Ct. App. 2006),

       trans. denied, we held in relevant part as follows:


               “[i]t is well settled in Indiana that sudden heat is not an element
               of voluntary manslaughter.” Boesch v. State, 778 N.E.2d 1276,
               1279 (Ind. 2002) (citing Isom v. State, 651 N.E.2d 1151, 1152
               (Ind. 1995), reh’g denied; Bane v. State, 587 N.E.2d 97, 100 (Ind.
               1992), reh’g denied; Palmer v. State, 573 N.E.2d 880 (Ind. 1991);
               Wilcoxen v. State, 705 N.E.2d 198, 203 (Ind. Ct. App. 1999), trans.
               denied), reh’g denied. Rather, once a defendant presents evidence
               of sudden heat, the State bears the burden of disproving its
               existence beyond a reasonable doubt. Id. (citing Ind. Code § 35-
               42-1-3(b) (“The existence of sudden heat is a mitigating factor
               that reduces what otherwise would be murder under section 1(1)
               of this chapter to voluntary manslaughter.”); Bane, 587 N.E.2d at
               100). An instruction assigning the burden of affirmatively
               proving sudden heat to the State is erroneous as a matter of law.
               Id. When properly objected to at trial, it may require a new trial
               on the murder charge. Id. In addition, a trial court’s failure to
               give a jury instruction explaining that the State must negate the
               presence of sudden heat beyond a reasonable doubt, when
               requested, necessitates the granting of a new trial. See Harrington
               v. State, 516 N.E.2d 65, 66 (Ind. 1987), reh’g denied.


[14]   But the State contends that Orr was not entitled to a voluntary manslaughter

       instruction and was not, therefore, prejudiced by the erroneous jury

       instructions. In support of that contention, the State correctly points out that

       there was no serious evidentiary dispute about the existence of sudden heat. It

       is well settled that an instruction on voluntary manslaughter is warranted “if the

       evidence demonstrates a serious evidentiary dispute regarding the mitigating


       Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-87| October 7, 2015   Page 9 of 18
       factor of sudden heat; that is, there must be evidence showing sufficient

       provocation to induce passion that renders a reasonable person incapable of

       cool reflection.” Massey v. State, 955 N.E.2d 247, 256 (Ind. Ct. App. 2011). As

       we explained in Massey,


               “Sudden heat is characterized as anger, rage, resentment, or
               terror sufficient to obscure the reason of an ordinary person,
               preventing deliberation and premeditation, excluding malice, and
               rendering a person incapable of cool reflection. Anger alone is not
               sufficient to support an instruction on sudden heat. Nor will words alone
               constitute sufficient provocation to warrant a jury instruction on
               voluntary manslaughter, and this is especially true when the words at
               issue are not intentionally designed to provoke the defendant, such as
               fighting words.

               In addition to the requirement of something more than mere
               words, the provocation must be sufficient to obscure the reason
               of an ordinary man, an objective as opposed to subjective
               standard. Finally, Voluntary Manslaughter involves an impetus
               to kill which arises suddenly.”


       955 N.E.2d at 256-57 (quoting Suprenant v. State, 925 N.E.2d 1280, 1282-83

       (Ind. Ct. App. 2010) (citations and quotation marks omitted), trans. denied.)

       (emphasis added).


[15]   Here, Orr contends that the following evidence shows that he acted in sudden

       heat: his “actions were prompted by an argument with the two victims,” and

       he had little time for cool reflection between the argument and the shootings.

       Appellant’s Br. at 24. Orr also suggests that, because no one witnessed “the last

       moments between Orr and the victims,” there is a serious evidentiary dispute


       Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-87| October 7, 2015   Page 10 of 18
       whether he acted in sudden heat. Id. Orr maintains that the evidence is

       sufficient to support a voluntary manslaughter instruction because, “[b]ased on

       this evidence, the [trial court] agreed to give the voluntary manslaughter

       instructions.” Id.


[16]   We agree with the State that there was no serious evidentiary dispute on the

       issue of sudden heat. Again, words alone do not constitute sufficient

       provocation, especially words that are not intentionally designed to provoke.

       Massey, 955 N.E.2d at 257. Here, the only evidence of an argument between

       Orr and the victims is the testimony that Orr said to Williams, “What’s that

       smart remark you said?” Tr. at 223. And Williams responded, “I don’t know

       you to even be saying anything about you.” Id. There is no evidence of

       anything more than an exchange of words, and Williams’ statement was not

       provocative, but appears to have been intended to avoid a confrontation with

       Orr. And, as Orr points out, no witnesses saw or heard Orr or the victims in the

       moments leading up to the shootings. There is simply no evidence, let alone a

       serious evidentiary dispute, to show that sudden heat was a factor in the

       shootings. Orr was not entitled to a voluntary manslaughter instruction, and he

       cannot show that he was prejudiced by his trial counsel’s failure to object to the

       trial court’s erroneous instructions and to tender a proper instruction. Massey,




       Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-87| October 7, 2015   Page 11 of 18
       955 N.E.2d at 257. Accordingly, Orr has not demonstrated that he was denied

       the effective assistance of trial counsel on this issue.4 Id.


                                                Witness Impeachment

[17]   Orr next contends that his trial counsel was ineffective when she did not

       adequately impeach Foster, who had agreed to testify against Orr in exchange

       for a plea deal. Foster had met Orr while they were both incarcerated, and Orr

       told Foster about the murders of Haywood and Williams. At the time, Foster

       was facing “numerous charges pertaining to distributing cocaine,” including

       dealing in cocaine, as a Class A felony. Appellant’s App. at 344. Foster was

       negotiating a plea agreement with the State and offered to testify against Orr at

       Orr’s trial in exchange for a better plea agreement. The State agreed, and,

       whereas Foster was initially going to enter into an open plea on a Class B

       felony, he entered into an open plea on a Class C felony, and the State

       dismissed his remaining charges in exchange for his testimony against Orr.


[18]   Orr’s argument on this issue is without merit. When Foster testified at Orr’s

       trial, Orr’s defense counsel conducted a thorough cross-examination and

       focused on the benefit Foster was receiving for his testimony. That cross-

       examination included the following exchange:




       4
         To the extent Orr asserts that, because the trial court instructed the jury on voluntary manslaughter it
       cannot now, on his petition for post-conviction relief, “reverse field,” we cannot agree. Appellant’s Br. at 27.
       Orr must show prejudice as a result of any alleged ineffective assistance of counsel. Because Orr cannot
       show that he was entitled to an instruction on voluntary manslaughter, he cannot show prejudice as a result
       of the improper instructions, and his ineffective assistance claim fails. See Massey, 955 N.E.2d at 257.

       Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-87| October 7, 2015               Page 12 of 18
        Q: This letter is what you sent to [your defense counsel] asking
        . . . him to get you a better plea, correct?

        A: Yes.

        Q: In fact, this letter says you will do anything to get a better
        plea, correct?

        A: Yes.

        Q: Okay. In fact, exact language says that I got all that written
        down for a good plea; probation, therapeutic [sic], community
        [sic], house arrest, a good plea, you think it’s a good move, can
        you make it work? It’s worth a try, isn’t it? That’s what you
        wrote your attorney, didn’t you?

        A: Yeah. Yes.

        Q: Okay. Now, earlier . . . you said on direct examination that
        you have a Class A felony and multiple B felonies and a D felony
        over your head right now, correct?

        A: Yes.

                                                ***

        Q: Sir, according to this proffer letter that you signed . . . , you
        are currently charged with a Class A felony carrying a minimum
        penalty range of 30 years and a maximum penalty range of 50
        years, correct?

        A: Yes.

        Q: You are also looking at five separate Class B felonies, each of
        them carrying a minimum sentence of six years, a presumptive
        sentence of 10 years and a maximum sentence of 20 years,


Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-87| October 7, 2015   Page 13 of 18
        correct?

        A: Yes.

        Q: You’re also looking at a Class D felony that carries a penalty
        of six months minimum, 18 months or a year and a half
        presumptive or three years as a maximum, correct?

        A: Yes.

        Q: Plus you are looking at the habitual offender enhancement on
        each of those counts, correct?

        A: Yes.

                                                ***

        Q: . . . In terms of your penalty range, if you testify according to
        this proffer, you are now going to be looking at a maximum of
        eight years, because a Class C felony has a range of two years to
        four years to eight years, correct?

        A: Yes.


Appellant’s App. at 359-67. After that cross-examination, the State requested

that the trial court take judicial notice of the maximum sentence Foster faced

had he not pleaded guilty. The trial court agreed and advised the jury as

follows:


        [T]he state has asked me to take what’s called judicial notice of a
        particular fact that is not in question or is very clear under the
        laws of this state. And that is in a situation where you have one
        defendant who is charged with a series of dealing in a controlled
        substance or dealing in cocaine charges, it’s dealing cases, such

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-87| October 7, 2015   Page 14 of 18
               as what we have here where [Foster] is charged with one Class A
               felony and five Class B felonies, under the same cause, such as
               what we have here, all six sentences would have to be served,
               they must be served concurrently, which means at the same time.
               So, therefore, if there’s a conviction on all six dealing cases,
               dealing charges, they would all run together at the same time.
               They overlap. That is the state of the law and that is Indiana
               law. . . .


       Id. at 387.


[19]   Orr maintains that, in fact, Indiana law does not require that Foster would have

       faced only concurrent, not consecutive sentences had he been convicted as

       charged. In support of that contention, Orr cites to our supreme court’s opinion

       in Beno v. State, 581 N.E.2d 922, 924 (Ind. 1991), where the court held as

       follows:

               Beno was convicted of committing virtually identical crimes
               separated by only four days. Most importantly, the crimes were
               committed as a result of a police sting operation. As a result of
               this operation, Beno was hooked once. The State then chose to
               let out a little more line and hook Beno for a second offense.
               There is nothing that would have prevented the State from
               conducting any number of additional buys and thereby hook
               Beno for additional crimes with each subsequent sale. We
               understand the rationale behind conducting more than one buy
               during a sting operation, however, we do not consider it
               appropriate to then impose maximum and consecutive sentences
               for each additional violation. If Beno, for instance, had sold
               drugs to different persons, or if he had provided a different type
               of drug during each buy, the consecutive sentences imposed
               might seem more appropriate. Here, however, because the
               crimes committed were nearly identical State-sponsored buys,
               consecutive sentences were inappropriate.
       Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-87| October 7, 2015   Page 15 of 18
[20]   Orr maintains that, unlike the controlled buys in Beno, the controlled buys in

       Foster’s case occurred weeks and months apart (January 24, February 13, June

       15, and June 23) and at two different locations. Indeed, our courts have

       distinguished Beno where the facts of multiple controlled buys were “not

       virtually identical.” See, e.g., Mendoza v. State, 737 N.E.2d 784, 789 (Ind. Ct.

       App. 2000). Thus, Orr is correct that, had Foster been convicted as charged, he

       would not necessarily have been sentenced to concurrent terms on the dealing

       charges.


[21]   That being said, the crux of Orr’s contention on appeal is that, had his defense

       counsel advised the jury that Foster faced a sentence “of over one hundred

       (100) years [without his plea agreement, the jury] would not have found his

       testimony credible and would not have convicted Orr.” Appellant’s Br. at 36.

       But, again, defense counsel cross-examined Foster and established that, without

       his plea agreement, he faced a possible fifty-year sentence for a Class A felony

       conviction and an enhancement for being a habitual offender. While Orr’s

       defense counsel did not specify that that enhancement could mean an

       additional thirty years, see former Ind. Code § 35-50-2-8, it was clear that

       something more than fifty years could have been imposed. And, while the trial

       court advised the jury that the dealing in cocaine convictions would have

       required concurrent sentences, the judicial notice did not address either Foster’s

       C felony possession of cocaine charge or D felony maintaining a common

       nuisance charge. Thus, as far as the jury was concerned, the sentences on those

       counts could have run consecutive to the dealing sentences.


       Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-87| October 7, 2015   Page 16 of 18
[22]   Regardless, defense counsel clarified that, in exchange for his testimony against

       Orr, Foster faced a sentencing range of only two to eight years. Thus, defense

       counsel established that Foster’s benefit for his testimony was substantial, and

       we cannot say that the jury would have been less likely to believe Foster if Orr’s

       defense counsel had gone into more detail regarding the possible sentences

       Foster had faced. Moreover, Orr exaggerates the impact of Foster’s testimony

       on the jury’s verdict. There was ample evidence of Orr’s guilt without Foster’s

       testimony. Again, Tolbert testified that, immediately before the shootings, he

       saw Orr get a firearm and heard him threaten to kill “everybody in this

       building.” Tr. at 227. And other witnesses corroborated that series of events.

       We cannot say that, had the jury discredited Foster’s testimony, it likely would

       have acquitted Orr of the murders. Orr cannot show that he was prejudiced by

       defense counsel’s impeachment of Foster, and he was not denied the effective

       assistance of trial counsel on that basis.


                        Issue Two: Effective Assistance of Appellate Counsel

[23]   Orr next contends that he was denied the effective assistance of appellate

       counsel. In particular, he contends that his counsel on direct appeal was

       ineffective when he omitted from his brief on appeal a challenge to the

       erroneous voluntary manslaughter instructions. Again, Orr must show that his

       appellate counsel’s performance fell below an objective standard of

       reasonableness and that there is a reasonable probability that, but for the

       deficient performance of counsel, the result of the proceeding would have been



       Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-87| October 7, 2015   Page 17 of 18
       different. Manzano v. State, 12 N.E.3d 321, 329 (Ind. Ct. App. 2014) (citing

       Harris v. State, 861 N.E.2d 1182, 1186 (Ind. 2007)), trans. denied.


[24]   Orr’s contention on this issue is derivative of his claim of ineffective assistance

       of trial counsel on the erroneous voluntary manslaughter instructions. Again,

       Orr was not entitled to a voluntary manslaughter instruction, and he cannot

       show that he was prejudiced by his appellate counsel’s failure to raise the issue

       of the trial court’s erroneous instructions on appeal. Massey, 955 N.E.2d at 257.

       Accordingly, Orr has not demonstrated that he was denied the effective

       assistance of appellate counsel. Id.


[25]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1503-PC-87| October 7, 2015   Page 18 of 18
