      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                        FILED
      regarded as precedent or cited before any                               Nov 27 2019, 8:32 am
      court except for the purpose of establishing
                                                                                   CLERK
      the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                                  Court of Appeals
      estoppel, or the law of the case.                                             and Tax Court




      APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
      Cleverly Lockhart                                       Curtis T. Hill, Jr.
      New Castle, Indiana                                     Attorney General of Indiana
                                                              Ellen H. Meilaender
                                                              Supervising Deputy Attorney
                                                              General
                                                              Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Cleverly Lockhart,                                      November 27, 2019
      Appellant-Petitioner,                                   Court of Appeals Case No.
                                                              19A-PC-195
              v.                                              Appeal from the Howard Circuit
                                                              Court
      State of Indiana,                                       The Honorable Thomas R. Lett,
      Appellee-Respondent.                                    Special Judge
                                                              Trial Court Cause No.
                                                              34C01-9406-CF-40



      Mathias, Judge.


[1]   Cleverly Lockhart (“Lockhart”), pro se, appeals the post-conviction court’s

      denial of his successive petition for post-conviction relief. Lockhart seeks relief

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019                 Page 1 of 36
      from the 1998 resentencing judgment of the Howard Circuit Court, which

      followed his convictions in 1995 for one count of Class C felony child molesting

      and three counts of Class B felony child molesting. Lockhart contends that he

      received ineffective assistance of counsel and that newly discovered evidence

      warrants reversal of his sentence and retrial.


[2]   Lockhart’s claims are waived because they are not appropriately based in our

      appellate and post-conviction rules. Waiver notwithstanding, res judicata and

      procedural default bar the relitigation of his ineffective assistance of counsel

      claims. To the extent Lockhart raises freestanding claims of error, those claims

      are unavailable in this post-conviction proceeding. Accordingly, we affirm the

      judgment of the post-conviction court.


[3]   We affirm.


                                 Facts and Procedural History
[4]   Lockhart was convicted of four counts of felony child molesting based on the

      following facts, as recounted by this court in our 1996 decision affirming the

      convictions:


              In November of 1993, Lockhart moved into the house of his
              friend, Michelle Frazier. At first, Lockhart slept on a couch, but
              eventually began sleeping in the bedroom of Frazier’s eleven year
              old son, J.R. Lockhart developed a close father-son relationship
              with J.R.


              In January of 1994, while Lockhart and J.R. sat on the floor
              under a blanket and watched television, Lockhart reached over

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 2 of 36
        and placed his hand inside J.R.’s underwear. Lockhart rubbed
        J.R.’s penis for several minutes.


        A couple of weeks later, Lockhart went into J.R.’s bedroom and
        locked the door. He told J.R. about oral sex and then pulled
        J.R.’s pants down. Lockhart placed his mouth on J.R.’s penis for
        several minutes.


        One month later, Lockhart again entered J.R.’s bedroom and
        locked the door. He performed oral sex on J.R. and forced J.R. to
        perform oral sex on him. Afterwards, Lockhart placed his penis
        into a sock and masturbated until he ejaculated.


        In March of 1994, Lockhart became angry with J.R. for not
        completing a household chore. Lockhart spanked J.R. and
        ordered him to go to his bedroom. Lockhart later went to J.R.’s
        bedroom to apologize. Lockhart told J.R. “how to make love to a
        guy” and then “french-kissed” J.R. Lockhart kissed J.R. all over
        his body and put his mouth on J.R.’s penis. Lockhart moved out
        of the house later that month. Before leaving, Lockhart told J.R.
        that if J.R. ever decided he was homosexual, he should contact
        Lockhart.


        Approximately two weeks later, J.R. told his mother about the
        molestations. Frazier immediately reported the incidents to Child
        Protective Services.


Lockhart v. State, 671 N.E.2d 893, 896–97 (Ind. Ct. App. 1996) (“Lockhart I”)

(record citation omitted). The State charged Lockhart with one count of Class C

felony child molesting and three counts of Class B felony child molesting, and

in July 1995, a jury found Lockhart guilty as charged. He was sentenced to

sixty-eight years with the Department of Corrections (“DOC”), which was


Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 3 of 36
      reduced to thirty years by the trial court. Lockhart appealed his conviction and

      sentence, and this court ruled in Lockhart I that the sentence reduction was

      erroneously based on the trial court’s misreading of the applicable sentencing

      statute. Id. at 904. In so holding, we affirmed Lockhart’s convictions, reversed

      the thirty-year sentence, and remanded the case for resentencing. In 1998, the

      trial court resentenced Lockhart to fifty-three years with the DOC. Appellant’s

      App. pp. 12–13, 206.


[5]   After his resentencing, Lockhart, proceeding pro se, filed a petition for post-

      conviction relief based on ineffective assistance of trial and appellate counsel.

      The post-conviction court denied his petition and we affirmed the denial of

      post-conviction relief in November 2009. His petition was denied by the post-

      conviction court. Lockhart v. State, No. 34A05-0905-PC-293, 2009 WL 3754043

      at *2 (Ind. Ct. App. Nov. 10, 2009) (“Lockhart II”), trans. denied.


[6]   Lockhart next filed a motion to correct erroneous sentence in which he argued

      that the trial court—when it resentenced him in 1998—did not abide by the

      conditions of a sentencing agreement purportedly reached during plea

      negotiations. The trial court denied Lockhart’s motion in April 2012, and we

      affirmed the trial court because Lockhart failed to present a case of prima facie

      error. See Lockhart v. State, No. 34A04-1204-CR-226, 2012 WL 3264988 at *2

      (Ind. Ct. App. Aug. 13, 2012) (“Lockhart III”), trans. denied.


[7]   In April 2013, Lockhart filed a petition for permission to file a belated notice of

      appeal from the 1998 resentencing decision. Appellant’s App. p. 36. The trial


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 4 of 36
      court denied Lockhart’s motion without holding a hearing, and we reversed and

      remanded with instructions to hold a hearing to determine whether Lockhart

      was entitled to a belated direct appeal. See Lockhart v. State, No. 34A02-1304-

      CR-384, 2013 WL 6857601 at *3 (Ind. Ct. App. Dec. 27, 2013) (“Lockhart IV”).

      The trial court granted Lockhart permission to file a belated notice of appeal,

      and he did so. We held that the trial court did not err in resentencing Lockhart

      and affirmed his fifty-three-year sentence. See Lockhart v. State, No. 34A04-1407-

      CR-351, 2015 WL 2451739 at *6 (Ind. Ct. App. May 20, 2015) (“Lockhart V”).


[8]   Lockhart then requested and, in June 2016 was granted permission to file, a

      successive petition for post-conviction relief. Appellant’s App. pp. 67–68. In

      March 2018, Lockhart submitted his case by affidavit. Appellant’s App. pp. 46,

      125–42. The court denied Lockhart’s petition for successive post-conviction

      relief in June 2018. Appellant’s App. pp. 46, 48. Lockhart appealed the denial,

      and in August 2018 we denied his motion for remand for an evidentiary hearing

      but ordered his case remanded for the post-conviction court to enter findings of

      fact and conclusions of law in accordance with Indiana Post-Conviction Rule

      1(6). The post-conviction court subsequently entered findings of fact and

      conclusions of law and denied Lockhart’s successive petition for post-

      conviction relief. Appellant’s App. pp. 180–82. Lockhart now appeals.

      Additional facts will be provided as needed.




      Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 5 of 36
                                          Standard of Review
[9]    A petitioner in a post-conviction proceeding bears the burden of establishing

       grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

       Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). Post-conviction

       claims must be based on grounds for relief that are enumerated in the post-

       conviction rules. Ind. Post-Conviction Rule 1(1); Timberlake v. State, 753 N.E.2d

       591, 597 (Ind. 2001). Issues that were known and available but not raised on

       direct appeal are procedurally defaulted and may not be litigated in subsequent

       post-conviction proceedings. Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002).

       Our supreme court has described post-conviction proceedings this way:


               Post-conviction proceedings are civil proceedings that provide
               defendants the opportunity to raise issues not known or available
               at the time of the original trial or direct appeal. Thus, if an issue
               was known and available but not raised on direct appeal, the
               issue is procedurally foreclosed. If an issue was raised and
               decided on direct appeal, it is res judicata. If a claim of ineffective
               assistance of trial counsel was not raised on direct appeal, that
               claim is properly raised at a post-conviction proceeding.


       Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007) (internal citations

       omitted).


[10]   Likewise, proper successive petitions for post-conviction relief contain claims

       that by their nature could not have been raised in earlier proceedings. Matheney

       v. State, 834 N.E.2d 658, 662 (Ind. 2005). Claims that could have been but were

       not raised in earlier proceedings and that were not otherwise properly preserved


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 6 of 36
       are procedurally defaulted and waived. Id. That is to say, “we do not authorize

       the filing of successive petitions [that raise] forfeited claims.” Id. The doctrine of

       res judicata bars claims that have already been decided adversely on direct

       appeal, or in earlier post-conviction proceedings, from re-litigation in a

       successive post-conviction petition. Id.


[11]   A post-conviction court must make findings of fact and conclusions of law on

       all issues presented in the petition for post-conviction relief. See P-C.R. 1(6).

       The findings must be supported by facts and the conclusions must be supported

       by law. Bivins v. State, 735 N.E.2d 1116, 1121 (Ind. 2000). Our review on appeal

       is limited to these findings and conclusions and is deferential to the post-

       conviction court’s factual findings. Id.


[12]   When a petitioner appeals from a denial of post-conviction relief, he stands in

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

       679. To the extent an appeal from a negative judgment turns on factual issues,

       the petitioner faces a rigorous standard of review and must “convince this Court

       that the evidence as a whole was such that it leads unerringly and unmistakably

       to a decision opposite that reached by the postconviction court.” Harrison v.

       State, 707 N.E.2d 767, 773–74 (Ind. 1999). Where the post-conviction court has

       made findings of fact and conclusions of law in accordance with Post-

       Conviction Rule 1(6), we will reverse only where evidence of clear error “leaves

       us with a definite and firm conviction that a mistake has been made” by the

       post-conviction court. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000)

       (internal quotation omitted). The post-conviction court is the sole judge of the

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 7 of 36
       weight of the evidence and the credibility of witnesses, and so we accept the

       post-conviction court’s findings of fact unless clearly erroneous. Fisher, 810

       N.E.2d at 679. We do not defer to the post-conviction court’s conclusions of

       law. Id.


[13]   The purpose of post-conviction and successive post-conviction proceedings is

       not to afford petitioners a chance at a “super appeal.” Turner v. State, 974

       N.E.2d 575, 581 (Ind. Ct. App. 2012), trans. denied. “Issues [that were] not

       raised in the petition for post-conviction relief may not be raised for the first

       time” in an appeal from a negative post-conviction judgment. Allen v. State, 749

       N.E.2d 1158, 1171 (Ind. 2001) (citing Post-Conviction Rule 1(8) (“All grounds

       for relief available to a petitioner under this rule must be raised in his original

       petition.”)); Howard v. State, 467 N.E.2d 1, 2 (Ind. 1984) (“It is well settled that

       issues which are not raised either at the trial level, on appeal, or in a post-

       conviction petition are waived.”).


                                       Discussion & Decision
[14]   Our decision is organized as follows: first, whether Lockhart has waived our

       review based on substantial non-compliance with Appellate Rule 46(A)(8),

       failure to develop a cogent argument with adequate citation to authority and

       portions of the record; second, whether the post-conviction court erred in

       declining to hold an evidentiary hearing in violation of Post-Conviction Rule

       1(9); and, notwithstanding waiver under Appellate Rule 46(A)(8), whether




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 8 of 36
       Lockhart’s claims of ineffective assistance of counsel are barred from

       relitigation under Post-Conviction Rule 1(8) and the doctrine of res judicata.


                            I. Waiver Under Indiana Appellate Rule 46(A)(8)

[15]   The State asserts that Lockhart waived his claims for our review by failing to

       make a cogent argument with citation to relevant authority as is required by

       Appellate Rule 46(A)(8). Though Lockhart filed a reply brief in this case, it did

       not acknowledge nor challenge the State’s argument that his claims were

       waived under the rule. We observe that Lockhart is proceeding pro se. 1 Pro se

       litigants are held to the same legal standard as trained counsel. Evans v. State,

       809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. This standard includes

       adhering to our appellate rules, the purpose of which is to aid and expedite

       review and to relieve the appellate court of the burden of searching the record

       and briefing the case. Ramsey v. Review Bd. of Indiana Dep’t of Workforce Dev., 789

       N.E.2d 486, 487 (Ind. Ct. App. 2003). In circumstances where non-compliance

       with the appellate rules obliges us to “search the record and make up [our] own

       arguments because a party has presented them in perfunctory form,” this court

       risks acting as advocate rather than adjudicator. Keller v. State, 549 N.E.2d 372,

       373 (Ind. 1990). Trained and untrained counsel alike are therefore bound to




       1
        The office of the Public Defender affirmatively declined to represent Lockhart in this successive post-
       conviction proceeding, as Post-Conviction Rule 1(9)(a) permits when the Public Defender determines the
       proceedings are not meritorious nor in the interests of justice.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019                Page 9 of 36
       follow the rules of procedure and “must be prepared to accept the consequences

       of his action.” Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004).


[16]   Appellate Rule 46(A)(8)(a) states that an appellant’s contentions “must be

       supported by citations to the authorities, statutes, and the Appendix or parts of

       the Record on Appeal relied on.” A litigant who fails to support his arguments

       with appropriate citations to legal authority and record evidence waives those

       arguments for our review. See City of Indianapolis v. Buschman, 988 N.E.2d 791,

       795 (Ind. 2013) (finding a party’s argument waived for non-compliance with

       Rule 46). If a dispute includes the admissibility of evidence, “citation shall be

       made to the pages of the Transcript where the evidence was identified, offered,

       and received or rejected.” App. R. 46(A)(8)(d). We trust trial courts to exercise

       sound discretion in deciding whether to admit or exclude evidence and reverse

       such a decision only if we believe the court abused its discretion, meaning that

       its decision is clearly against the logic and effect of the facts in the record. Blount

       v. State, 22 N.E.3d 559, 564 (Ind. 2014).


[17]   Lockhart’s appeal is preoccupied with the post-conviction court’s order striking

       what Lockhart alleges was relevant, newly discovered evidence that he

       submitted in support of his petition for post-conviction relief.2 When it issued its

       order denying Lockhart post-conviction relief, the court also issued an order

       striking from the record all evidence purporting to be signed by individuals



       2
        The order, from June 18, 2018, is listed and paginated in the table of contents of Lockhart’s appendix but
       not actually included in the appendix, nor is it cited once in Lockhart’s brief or reply brief.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019                Page 10 of 36
other than Lockhart. In its findings of fact, the post-conviction court stated that

“[t]he purported documents submitted to support Petitioner’s petition have

been submitted and considered in previous hearings[.]” Appellant’s App. p.

181. Lockhart argues on appeal that the post-conviction court erred when it

found he had not established grounds for relief by a preponderance of the

evidence. In making this argument, however, Lockhart relies on a litany of

documents that are not properly included in his appendix or the record on

appeal. Much of Lockhart’s argument is a recitation of these documents, wholly

lacking in coherent explanation of their relevance and supported only by

conclusory statements. We suspect that Lockhart’s record citations are almost

entirely to evidence that was stricken by the post-conviction court.3

Furthermore, our review of the history of this case confirms that Lockhart has

previously and unsuccessfully attempted to introduce similar – if not the same –

documents of dubious authenticity.4




3
  The State correctly notes, however, that there are no documents attached to Lockhart’s petition in his
appendix before us on appeal. So, we cannot know which documents Lockhart actually submitted to support
his petition for successive post-conviction relief. There are, however, numerous documents (improperly
included in Lockhart’s appendix) that are signed by individuals other than Lockhart; based on the post-
conviction court’s order striking such documents and on the post-conviction court’s findings of fact, we
presume that these are the same documents submitted to the post-conviction court with Lockhart’s petition.
They include: an alleged recantation by victim J.R. (Appellant’s App. pp. 79–89); alleged results of a
polygraph examination (Appellant’s App. pp. 73–74); correspondence to Lockhart purporting to be from his
counsel, the prosecutor, and others (Appellant’s App. pp. 70, 76–78, 117, 120, 123, 124); plus interrogatories
and affidavits (Appellant’s App. pp. 95–105).
4
  E.g., in 2009 we found that although Lockhart claimed a certain document indicating his incompetency to
stand trial was filed on two separate dates, “the [chronological case summary (“CCS”)] does not reveal that
these notices were filed on these dates.” Lockhart II at n.3. In the same case, we noted that Lockhart relied
substantially on ten exhibits that had been excluded from evidence by the post-conviction court. Lockhart did
not challenge their exclusion, but “wrongfully include[d] them in his Appellant’s Appendix, acting as though


Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019                 Page 11 of 36
[18]   For these reasons, we do not believe the post-conviction court abused its

       discretion in excluding Lockhart’s proffered evidence from the record. In his

       appeal, Lockhart has not only failed to provide cogent reasoning or authority to

       support any argument related to the post-conviction court’s evidentiary ruling,

       he also appears to have improperly included and relied on documents which

       were duly stricken from the record by the post-conviction court in an exercise of

       its judgment which we will not reverse.


[19]   This court addresses the merits of a claim unless we find that an appellant’s

       “non-compliance with [Rule 46] [is] sufficiently substantial to impede our

       consideration of the issue raised[.]” Pierce v. State, 29 N.E.3d 1258, 1267 (Ind.

       2015) (quoting Davis v. State, 265 Ind. 476, 478, 355 N.E.2d 836, 838 (1976)).

       Lockhart’s non-compliance with Appellate Rule 46 surely approaches the level

       of substantiality warranting the waiver of his claims. Nevertheless, resolution of

       a case on the merits is preferable to resolution on procedural grounds such as

       waiver. Roberts v. Cmty. Hospitals of Indiana, Inc., 897 N.E.2d 458, 469 (Ind.

       2008). Notwithstanding Lockhart’s failure to satisfy Appellate Rule 46, which

       hinders our review, we turn now to address the merits of his arguments and

       determine that none entitle him to post-conviction relief.




       they were properly admitted into evidence below.” Id. at *8. In 2015 we found that there was “a history of
       previous forged documents in this case associated with Lockhart. [A report] was not file-stamped and was
       contained in an appendix submitted by Lockhart pro se in prior proceedings in this case. Nothing in the CCS
       shows that this report was ever filed in this proceeding.” Lockhart V at n.5.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019              Page 12 of 36
                       II. Compliance with Indiana Post-Conviction Rule 1(9)

[20]   Lockhart complains that the post-conviction court erred in adjudicating his

       successive petition for post-conviction relief without holding an evidentiary

       hearing. The State counters that the doctrine of invited error bars Lockhart from

       now disputing the appropriateness of the method in which the post-conviction

       court disposed of his petition, and furthermore, that the court acted within its

       discretion when it ordered the parties to submit their cases by affidavit.


[21]   In fact, this court has already once denied Lockhart’s motion to remand for an

       evidentiary hearing.5 Lockhart’s motion for remand for an evidentiary hearing

       was first before this court after the post-conviction court denied Lockhart’s

       successive petition for post-conviction relief—the first time—in June 2018.

       Lockhart appealed that denial in the form of a motion for remand for an

       evidentiary hearing; however, this court remanded his case on a separate basis.

       Because the post-conviction court’s June 2018 order did not include findings of

       fact and conclusions of law as required by Post-Conviction Rule 1(6), we

       granted Lockhart’s motion in part with instructions that the trial court “enter an

       amended order including findings of fact and conclusions of law” pursuant to

       Post-Conviction Rule 1(6). Our order was silent as to Lockhart’s motion for

       remand for an evidentiary hearing, and for this reason we cannot say that our



       5
        The order denying Lockhart’s motion for remand for an evidentiary hearing can be found at Cause No.
       18A-CR-1661 and was filed on August 17, 2018. In January 2019, the State filed and we granted a Motion to
       Transfer Prior Appeal Record to Successive Post-Conviction Appeal, directing a record of the prior
       proceedings including Cause No. 18A-CR-1661 to be filed under a new post-conviction cause number.



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019            Page 13 of 36
       judgment was rendered on the merits of the claim, which would result in its

       being barred from relitigation in this appeal by res judicata. 6 However, in

       concurring in the court’s order, Senior Judge Rucker would have also remanded

       for an evidentiary hearing. Therefore, in the interest of complete thoroughness,

       we proceed to explain why the post-conviction court did not err in disposing of

       Lockhart’s petition without holding an evidentiary hearing.


[22]   Lockhart pursued post-conviction relief pro se, thus the procedure identified in

       Post-Conviction Rule 1(9)(b) was an appropriate procedure for the post-

       conviction court to use in resolving his petition. The rule reads, in relevant part:


                In the event petitioner elects to proceed pro se, the court at its
                discretion may order the cause submitted upon affidavit. It need
                not order the personal presence of the petitioner unless his
                presence is required for a full and fair determination of the issues
                raised at an evidentiary hearing.


       P-C.R. 1(9)(b).


[23]   This rule provides a “distinct way for a PCR court to rule on a petition without

       an evidentiary hearing.” Smith v. State, 822 N.E.2d 193, 201 (Ind. Ct. App.

       2005), trans. denied. In the event that a post-conviction court orders a case




       6
         For res judicata to bar litigation of a claim, the former judgment on the same matter must meet four
       requirements: 1) the former judgment was rendered on the merits; 2) the former judgment was rendered by a
       court of competent jurisdiction; 3) the matter was or could have been determined in the prior action; and 4)
       the controversy was between the same parties as in the present suit. See, e.g., M.G. v. V.P., 74 N.E.3d 259 (Ind.
       Ct. App. 2017). Here, because we granted Lockhart’s motion for remand on grounds that did not include
       whether there was need for an evidentiary hearing, we did not at that time render judgment in consideration
       of the merits of that claim.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019                   Page 14 of 36
       submitted by affidavit pursuant to Post-Conviction Rule 1(9)(b), the court “is

       only required to hold an evidentiary hearing . . . if (1) affidavits are, in fact,

       submitted, (2) either party moves for summary disposition, and (3) there is a

       genuine issue of material fact.” Laboa v. State, 131 N.E.3d 660, 664 (Ind. Ct.

       App. 2019) (See also P-C.R. 1(4)(g)).


[24]   To determine whether the post-conviction court deviated from this procedure in

       Lockhart’s case, and thus erred in not holding an evidentiary hearing, we

       recount the pertinent facts. This court authorized Lockhart to file his successive

       petition for post-conviction relief, and Lockhart did so, on June 24, 2016.

       Appellant’s App. p. 43. The post-conviction court scheduled Lockhart’s case for

       hearing in early 2017. Id. at 44. Lockhart subsequently filed a motion for an

       extension of time, which the court granted, stating in its order that “the hearing

       will be reset upon the request of either party.” Id. At no point did the post-

       conviction court at its own discretion order Lockhart’s case submitted by

       affidavit. Rather, it was Lockhart who, in January 2018, filed a motion

       requesting to submit his petition by affidavit, which the court permitted in

       accordance with Post-Conviction Rule 1(9)(b). Id. at 45. On Lockhart’s request,

       the post-conviction court entered an order directing the parties as follows:

       “Petitioner shall submit his case by affidavit on or before April 2, 2018 and the

       State shall file its response on or before May 1, 2018[.]” Id.7 (emphasis added).




       7
         The post-conviction court’s order granting Lockhart’s motion to submit his case by affidavit is not included
       in the record before us. This language is quoted from the CCS entry summarizing the substance of the order.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019                 Page 15 of 36
[25]   The parties subsequently submitted their cases by affidavit, and Lockhart

       attached to his submission the following: “Transcript for Resentencing of April

       16, 1998, Submission of Case by Affidavit Appendix, and Volumes 1–3.” Id. at

       46. The State filed a motion to strike the attachments (discussed supra, Part I),

       and the post-conviction court granted the State’s motion to strike, ordering “all

       letters, affidavits and documents containing a signature other than the petitioner

       [be] stricken from the record.” Id. The court subsequently considered,

       examined, and denied Lockhart’s petition for post-conviction relief in June

       2018. Id.


[26]   Neither party moved for summary disposition after submission of the cases by

       affidavit, nor did the post-conviction court determine that the affidavits raised

       any genuine issue of material fact. Thus, there was no need for an evidentiary

       hearing to dispose of Lockhart’s petition. The post-conviction court properly

       availed itself of the option provided by Post-Conviction Rule 1(9) to “decide a

       post-conviction case without a hearing.” Laboa, 131 N.E.3d at 665.


[27]   And because it was on Lockhart’s motion that the possibility for an evidentiary

       hearing was foreclosed, Lockhart may not now claim that the lack of an

       evidentiary hearing constituted an abuse of discretion by the post-conviction

       court. The doctrine of invited error disallows a party from taking advantage of

       an error that he “commits, invites, or which is the natural consequence of [his]

       own neglect or misconduct.” Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005).

       Lockhart invited this particular method of adjudication, which the post-



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 16 of 36
       conviction court followed in compliance with Post-Conviction Rule 1(9), and

       cannot on appeal take advantage of what he considers to be error.


                           III. Res Judicata and Post-Conviction Rule 1(8)

[28]   Our supreme court has observed that post-conviction relief is “not. . .

       inten[ded]. . . to provide a means whereby one convicted could repeatedly re-

       litigate claims of improper conviction, or could unqualifiedly, upon a legitimate

       waiver of the right to appeal. . . raise an untimely challenge directed at some

       aspect of the proceedings against him.” Langley v. State, 256 Ind. 199, 203, 267

       N.E.2d 538, 540 (1971), overruled on other grounds by Bunch v. State, 778 N.E.2d

       1285 (Ind. 2002) (emphasis added). Post-Conviction Rule 1(8) sets out the

       procedural limitation on post-conviction relief:


               All grounds for relief available to a petitioner under this rule
               must be raised in his original petition. Any ground finally
               adjudicated on the merits or not so raised and knowingly,
               voluntarily and intelligently waived in the proceeding that
               resulted in the conviction or sentence, or in any other proceeding
               the petitioner has taken to secure relief, may not be the basis for a
               subsequent petition, unless the court finds a ground for relief
               asserted which for sufficient reason was not asserted or was
               inadequately raised in the original petition.


       P-C.R. 1(8).


[29]   This rule is closely related to the principle of res judicata, which disallows issues

       that have previously been decided adverse to a petitioner’s position from being

       subject to further judicial examination. Both waiver under Post-Conviction

       Rule 1(8) and res judicata arise from the underlying rationales of finality and
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 17 of 36
       judicial economy, it being “imperative to an orderly judicial system that, at

       some point, controversies end.” Maxey v. State, 596 N.E.2d 908, 911 (Ind. Ct.

       App. 1992). In ordinary civil proceedings, the claim preclusion branch of res

       judicata bars the relitigation of both those issues which were raised and those

       which should have been raised, but were not. Id. Similarly, in the post-

       conviction relief context, “a petitioner for post-conviction relief cannot escape

       the effect of claim preclusion merely by using different language to phrase an

       issue and define an alleged error.” Mickens v. State, 579 N.E.2d 615, 619 (Ind.

       Ct. App. 1991), trans. granted, aff’d in relevant part, 596 N.E.2d 1379 (Ind. 1992).

       Simply stated, all grounds for relief available to a petitioner under the post-

       conviction rules must be raised in his original petition. State v. Daniels, 680

       N.E.2d 829, 835 n.10 (Ind. 1997) (citing P-C.R. 1(8)).


[30]   The narrow exception to procedural default in the post-conviction context is

       found in the final phrase of Post-Conviction Rule 1(8), which excuses waiver of

       an issue where “. . . the court finds a ground for relief asserted which for

       sufficient reason was not asserted or was inadequately raised in the original

       petition.” Our supreme court has clarified that this exception to waiver is not

       inconsistent with res judicata because it allows only those issues that were

       “unascertainable or unavailable at the time of the original post-conviction

       petition” to be validly raised in a successive petition for post-conviction relief.

       Arthur v. State, 663 N.E.2d 529, 532 (Ind. 1996). In other words, “a defendant is

       entitled to one post-conviction hearing and one post-conviction opportunity to




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 18 of 36
       raise the issue . . . in the absence of newly discovered evidence or a Brady violation.”

       Daniels v. State, 741 N.E.2d 1177, 1185 (Ind. 2001) (emphasis added).


[31]   Accordingly, we will disturb the post-conviction court’s denial of Lockhart’s

       successive petition for post-conviction relief as being contrary to law only if the

       unconflicted evidence leads us to conclude relief should have been granted.

       Notwithstanding the confusion presented by Lockhart’s non-compliance with

       Appellate Rule 46, his petition raises ineffective assistance of counsel as the

       grounds for relief. He contends these claims were unavailable to him until

       evidence—namely, the transcript of his 1995 trial—was discovered after all

       prior litigation had concluded. Thus, we consider whether waiver or res

       judicata bar Lockhart from raising these ineffective assistance of counsel claims,

       and whether his claims were unascertainable or unavailable during each of his

       prior attempts to secure relief.


                       IV. Ineffective Assistance of Trial & Appellate Counsel

[32]   Lockhart contends that his conviction and sentence should be vacated because

       in 1995 his trial counsel provided ineffective assistance related to an allegedly

       erroneous jury instruction to which no timely objection was made. Appellant’s

       Br. at 15–17. Lockhart insists that this claim was unavailable to him at any

       point prior to this successive petition for post-conviction relief because a copy of

       the trial transcript was not in his possession until March 16, 2017, and without

       the transcript, Lockhart could not have known about this alleged error. Id. at

       12. Lockhart alleges he was “unaware of the [jury] instruction as he never had


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 19 of 36
       the [1995 trial] transcript after the direct appeal [Lockhart I, in 1996], and post-

       conviction relief and appeal [Lockhart II, in 2009].” Reply Br. at 9.


[33]   If this claim of error was available to Lockhart in his first petition for post-

       conviction relief, which raised ineffective assistance of trial and appellate

       counsel based on a different alleged error, it is procedurally barred now.

       Furthermore, if the evidence in the record supports the successive post-

       conviction court’s conclusion that Lockhart in fact had the transcript in his

       possession at the time of his 2009 initial post-conviction proceeding, the

       argument is waived because it was ascertainable and thus available in a prior

       petition for post-conviction relief.


[34]   The extensive chronological case summary (“CCS”) and the transcript of the

       2009 post-conviction proceeding ultimately belie Lockhart’s claim that the 1995

       trial transcript was not in his possession at the time of his first petition for post-

       conviction relief. On July 23, 2007, Lockhart appeared before the post-

       conviction court for a status hearing on his then-pending amended petition for

       post-conviction relief. Appellant’s App. p. 25. In that petition, Lockhart argued

       he was entitled to post-conviction relief based on ineffective assistance of trial

       and appellate counsel. See Lockhart II at *8–10. We quote at length the following

       exchange between Lockhart and the trial judge to verify that, although there

       was confusion about the transcript’s location, the post-conviction court took

       pains to confirm that a copy of the trial transcript was indeed in Lockhart’s

       possession.



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 20 of 36
        [Court]: I set this hearing today because I have some questions
        about our current status –


        [Lockhart]: OK.


        [Court]: – and I’m going to need your assistance to help me
        determine that. My first question to you is what do you need in
        order to be prepared to have an actual hearing on your PCR
        motion?


        [Lockhart]: Ok. [] I really thought we were having a hearing
        today.


        [Court]: Are you prepared to have a hearing on your PCR today?


        [Lockhart]: Actually, no, but just by the wording of the order I
        wasn’t sure so I just brought everything.


        [Court]: OK.


        [Lockhart]: I think what we’re needing now is a transcript.


        [Court]: Of what?


        [Lockhart]: Of the original trial and –


        [Court]: You’ve not been provided with that before?


        [Lockhart]: I have been but it is my understanding that the court
        will not accept that.


        [Court]: In what way would the court need to accept that?

Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 21 of 36
         [Lockhart]: OK. What I’ve done so far is I have asked the
         Appellate Court to fax, mail or somehow release it to this court. [8]


         [Court]: OK.


         [Lockhart]: OK. Now we have another transcript for April 16th
         of ’98 [the resentencing hearing] which is a very short transcript
         and that’s going to be needed. And then I think I would be ready.


         [Court]: [W]here was the hearing on April 16, 1998, held?


         [Lockhart]: It was in Miami County. It has been filed here.


         [Court]: So you have also been provided with a copy of that
         transcript?


         [Lockhart]: Yes, that has already been filed with an erroneous
         sentence that I had done at one time. I believe that you had ruled
         on it and –


         [Court]: Was that transcript filed with this court?


         [Lockhart]: Yes, with the Howard Circuit Court.


         [Court]: So it should be in the records here?




8
  We presume this refers to Lockhart’s direct appeal of his 1995 convictions and sentence, Lockhart I, and the
fact that the trial transcript was included in the record on appeal at that time. In his appeal, Lockhart, then
represented by counsel, raised six issues, none of which challenged the jury instructions. Lockhart I, 671
N.E.2d at 896.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019                  Page 22 of 36
        [Lockhart]: It should be in the records, yeah.


[Court]: OK. Now, the transcript of the original trial which was submitted to

the Court of Appeals on your original appeal, right?


        [Lockhart]: Yes. []


        [Court]: And for what purpose in the PCR do you need that
        transcript?


        [Lockhart]: We –, I will be dealing with the sentencing so, with
        the first sentencing.


        [Court]: OK. So you need the portion of that transcript dealing
        with your sentencing hearing?


        [Lockhart]: Yeah.


        [Court]: I don’t know the procedure here in Howard County.
        Does the clerk keep a copy of the transcript or does the whole
        thing go?


        [The Reporter]: (Inaudible).


        [Court]: Right. Were you represented by an attorney at your first
        appeal?


        [Lockhart]: Yes, I was. []


        [Court]: So presumably your attorney at that time would have a
        copy of this transcript?


Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 23 of 36
        [Lockhart]: OK, no. I have written and he has no copies of it. In
        fact he doesn’t even maintain a file anymore.


        [Court]: Well, who was your first attorney?


        [Lockhart]: Mr. Menges.


        [Court]: OK. Well, he wouldn’t necessarily have a file anymore;
        however, the public defender’s office would most likely have a
        file.


        [Lockhart]: Yes. Well that’s – yeah. Now I have the transcript
        but it was just my understanding that the court would not –


        [Court]: You have it, then why would you need it?


        [Lockhart]: Well, it was my understanding that you would not
        accept. I was told from, in the prison from the law clerks there
        that the courts will not accept that, but I have a complete
        transcript that’s already certified, so if the court will accept it I
        can bring that.


        [Court]: Well –, OK.


        [Lockhart]: But I needed to know that from you.


        [Court]: I understand that you’re not in the best position but you
        might want to be cautious in taking legal advice from the law
        clerks in the prison library.


                                                ***



Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 24 of 36
               [Court]: If you have a copy then you bring your copy to court
               when we come back.


               [Lockhart]: OK. Alright.


               [Court]: OK. It’s a certified copy of the transcript –


               [Lockhart]: Yes.


               [Court]: – and you have one, correct –


               [Lockhart]: Yes.


               [Court]: – in your possession?


               [Lockhart]: Oh yes [].


               [Court]: Alright. That will be good enough.


               [Lockhart]: OK.


       Prior Case Tr. pp. 18–22.


[35]   The CCS entry for the hearing read in part:


               Defendant requests a copy of the Transcript filed 2/11/03 from
               the 4/16/98 hearing [Lockhart’s resentencing hearing] held with
               Special Judge Embry and Court forwards a copy of the same to
               defendant. Court confirms the defendant has a copy of the
               Transcript from the trial and original sentencing in his
               possession and Court notes a copy is available with the


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 25 of 36
                [Howard] Circuit Court for review by the State or Special Judge
                Lett.


       Appellant’s App. p. 25 (Emphasis added).


[36]   The initial post-conviction court denied Lockhart’s petition for relief. In

       affirming the post-conviction court’s denial, we held that Lockhart’s ineffective

       assistance of trial counsel argument failed. Lockhart II at *9. Regarding his

       appellate counsel’s performance, we noted how appellate counsel raised six

       issues as part of Lockhart’s direct appeal in 1996. Id. That the attorney did not

       raise his “own failure to pursue an insanity defense” at trial, we observed, was

       not sufficient to support a finding of deficient appellate performance and so the

       issue was waived. Id. Thus, in affirming the post-conviction court’s denial of

       relief, we concluded that Lockhart had not established grounds for relief based

       on ineffective assistance of trial or appellate counsel by a preponderance of the

       evidence nor that the properly admitted evidence in the record led to a

       conclusion opposite that reached by the post-conviction court. Id.


[37]   The successive post-conviction court made the following findings of fact and

       conclusions of law on Lockhart’s renewed ineffective assistance of counsel

       claim:


                                          FINDINGS OF FACT


                                                      ***




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 26 of 36
        11. The issues raised by Petitioner’s Amended [successive]
        Petition for Post-Conviction Relief have been heard and ruled
        upon by both the trial court and the Court of Appeals.


        12. The Petitioner has been provided a copy of the transcript of
        proceedings in this cause, and has litigated this matter many
        times since the date of his sentencing hearing.


                                               ***


                                CONCLUSIONS OF LAW


                                               ***


        2. A claim of ineffective assistance of counsel may be raised in a
        post-conviction proceeding, but when raised, all issues relating to
        that claim must be raised. Woods v. State, 701 N.E.2d 1208 (Ind.
        1998).


        3. Once raised, a claim of ineffective assistance of counsel may
        not be litigated again by alleging different grounds. Morris v.
        State, 466 N.E.2d 13 (Ind. 1984).


        4. The Petitioner raised the issue of ineffective assistance of
        counsel in his appeal which was decided by the Court of Appeals
        on November 10, 2009.


        5. Because the court has considered and rejected the issue of
        ineffective assistance of counsel, Res judicada [sic] bars re-
        litigating the issue in this post-conviction proceeding.


                                               ***


Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 27 of 36
       Appellant’s App. pp. 180–182.


[38]   We hold that the successive post-conviction court did not err in finding that

       Lockhart possessed a copy of the trial transcript prior to his initial petition for

       post-conviction relief. Because the specific claim of error he makes now was

       ascertainable and thus available at the time of his initial petition for post-

       conviction relief, but was not raised in that initial petition, it is procedurally

       defaulted. See P-C.R. 1(8), see also Matheny, 834 N.E.2d at 662; Williams v. State,

       808 N.E.2d 652, 664 (Ind. 2004); Daniels, 741 N.E.2d at 1184–88. Its inclusion

       in Lockhart’s successive petition is barred because proper successive petitions

       for post-conviction relief contain claims that by their nature could not have been

       raised in earlier proceedings.9


       A.       Ineffective Assistance of Resentencing Counsel

[39]   Lockhart also contends that his conviction and sentence should be vacated due

       to ineffective assistance of resentencing counsel. Specifically, Lockhart contends

       that evidence of an agreement between himself and his counsel regarding

       Lockhart’s 1998 resentencing supports his ineffective assistance claim. Lockhart

       also contends he has evidence that his victim—whose testimony was part of the

       evidence used to convict Lockhart—has recanted his testimony. Appellant’s Br.




       9
         Furthermore, this evidence demonstrates that Lockhart also possessed a copy of the trial transcript when he
       initiated a belated direct appeal in 2015. See Lockhart V at *2. The issue of ineffective assistance of counsel
       was thus available but not raised in his belated direct appeal, further solidifying the post-conviction court’s
       conclusion that it is now procedurally defaulted and may not be raised in the successive post-conviction
       process. See Bunch, 778 N.E.2d at 1289.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019                  Page 28 of 36
       at 13–15. If this claim of error was available to Lockhart in his first petition for

       post-conviction relief, which raised ineffective assistance of counsel based on a

       different alleged error, it is procedurally barred now. Furthermore, if this issue

       was available but not raised in any prior direct appeal, procedural default bars it

       from being raised in this post-conviction proceeding. And if these matters have

       been raised and judgment rendered previously, they are res judicata.


[40]   Our review of the evidence included in Lockhart’s appendix—including the

       numerous documents that are improperly included, likely the same that were

       stricken by the post-conviction court, see supra note 3—reveals that this specific

       claim of ineffective assistance of resentencing counsel, too, was available at the

       time of his initial post-conviction petition. The alleged resentencing agreement

       was referred to in a document purportedly sent to Lockhart in 1998. Appellant’s

       App. p. 70. The alleged recantation by the victim was purportedly made known

       to Lockhart in 2002. Appellant’s App. pp. 79–89. Both of these pre-date the

       evidentiary hearings conducted as part of Lockhart’s first post-conviction

       proceedings, in 2007. The claim of ineffective assistance of resentencing counsel

       was not raised, however, in the initial post-conviction proceeding as it should

       have been, and thus it is procedurally defaulted in this successive petition for

       post-conviction relief.


[41]   The claim of ineffective assistance of resentencing counsel is also waived

       because Lockhart failed to raise it on direct appeal. In 2012, this court affirmed

       the lower court’s denial of Lockhart’s motion to correct erroneous sentence.

       Lockhart III at *1. In his motion, Lockhart alleged that the trial court during his

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 29 of 36
       resentencing hearing “did not abide by the conditions of a sentence agreed upon

       during plea negotiations” in an abuse of its discretion. Id. However, Lockhart

       did not meet his burden of presenting a case of prima facie error, that is to say,

       he did not demonstrate that his sentence was erroneous on its face. See Neff v.

       State, 888 N.E.2d 1249, 1251 (Ind. 2008). We noted that an inmate who

       believes he has been erroneously sentenced, as Lockhart did, properly seeks

       redress via direct appeal or post-conviction relief. We thus concluded that the

       trial court did not abuse its discretion in denying Lockhart’s motion to correct

       erroneous sentence. Lockhart III at *2.


[42]   In 2015, this court heard Lockhart’s belated direct appeal of his 1998

       resentencing. Lockhart V at *1. At that time, Lockhart properly challenged what

       he alleged was his erroneous sentence imposed by the 1998 resentencing court.

       He did not, however, directly challenge the effectiveness of his resentencing

       counsel. After an extensive examination of Lockhart’s arguments, we

       ultimately held that the trial court did not abuse its discretion when it

       resentenced Lockhart in 1998, and furthermore that his sentence was

       appropriate in light of the nature of the offense and the character of the

       offender. Id. at *6. All this to say that the matter of resentencing counsel’s

       effectiveness based on alleged violation of a resentencing agreement or an

       alleged recantation by the victim should have been raised at the time Lockhart

       directly challenged the appropriateness of his sentence. On this point, the

       successive post-conviction court drew the following findings of fact and

       conclusions of law:


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 30 of 36
                                   FINDINGS OF FACT


                                               ***


        6. [T]he Petitioner filed a belated appeal, in which he appealed
        his 1998 sentencing. The appeal was denied by the Court of
        Appeals on May 20, 2015.


        7. The belated appeal raised the issues of ineffective counsel at
        both the trial and appellate states.


                                               ***


        9. The issues raised in the [successive] Amended Petition for
        Post-Conviction Relief were raised in the previously filed appeals
        and Motions for PCR, and all have been denied.


                                CONCLUSIONS OF LAW


        2. A claim of ineffective assistance of counsel may be raised in a
        post-conviction proceeding, but when raised, all issues relating to
        that claim must be raised. Woods v. State, 701 N.E.2d 1208 (Ind.
        1998).


        3. Once raised, a claim of ineffective assistance of counsel may
        not be litigated again by alleging different grounds. Morris v.
        State, 466 N.E.2d 13 (Ind. 1984).


        4. The Petitioner raised the issue of ineffective assistance of
        counsel in his appeal which was decided by the Court of Appeals
        on November 10, 2009.


                                               ***

Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 31 of 36
       Appellant’s App. pp. 180–182.


[43]   We hold that the successive post-conviction court did not err in finding that

       Lockhart waived the ability to argue he is entitled to post-conviction relief based

       on ineffective assistance of resentencing counsel. Its inclusion in Lockhart’s

       successive petition is barred for the same reason that his claims based on

       ineffective assistance of trial and appellate counsel are; by their nature, they

       could have been raised in earlier proceedings and were not, and so they are now

       procedurally barred.


       B.      Freestanding Claims of Error

[44]   Lockhart also appears to make freestanding claims of error regarding the jury

       instruction and the sufficiency of the evidence supporting the 1995 Class C

       felony child molesting conviction. Appellant’s Br. at 25–30. He characterizes

       these claims as fundamental error (Appellant’s Br. at 13, 19); however,

       fundamental error analysis has no application in post-conviction proceedings.

       Latta v. State, 743 N.E.2d 1121, 1132 (Ind. 2001); see also Davis v. State, 775

       N.E.2d 1182, 1185–86 (Ind. Ct. App. 2002) (“[F]reestanding fundamental error

       claims in a post-conviction petition may not be raised.”), trans. denied.

       Lockhart’s argument is that the trial court (not the post-conviction court)

       abused its discretion. This is a freestanding issue that is unavailable on post-

       conviction review. Our supreme court has made clear that freestanding claims

       that the original trial court committed error are generally unavailable on post-

       conviction review. See, e.g., Stephenson, 864 N.E.2d at 1029.


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 32 of 36
[45]   And we repeat: the alleged jury instruction error was known and available, but

       not raised, when Lockhart directly appealed his convictions in 1996; the

       argument is procedurally defaulted now. As for Lockhart’s challenge to the

       sufficiency of the evidence underlying his convictions, this court ruled on the

       matter when Lockhart first appealed in 1996. Lockhart I, 671 N.E.2d at 903. The

       matter is res judicata, and we will not entertain a renewed challenge to the

       evidence’s sufficiency now. Thus, to the extent Lockhart makes freestanding

       claims of error based on a jury instruction or sufficiency of the evidence, the

       claims are unavailable for post-conviction review due to waiver.


[46]   Finally, and rather incredibly, Lockhart has again failed to include in the record

       the transcript, which he now says is finally in his possession, that he points to as

       uncovering newly discovered evidence excusing waiver of his ineffective

       assistance of counsel claim. The burden of providing a record adequate for

       review is the appellant’s. Moore v. State, 426 N.E.2d 86, 87 (Ind. Ct. App. 1981).

       In our opinion affirming the denial of his initial petition for post-conviction

       relief, we explained the consequences of Lockhart’s failure to provide a record

       that included the transcript on which he relied:


               The transcript must be admitted into evidence just as any other
               exhibit. Without the record from Lockhart’s trial, we cannot
               determine which reports the State stipulated to and the post-
               conviction court considered in denying Lockhart relief.


       Lockhart II at *8 (internal citations omitted).




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 33 of 36
[47]   We mention the dearth of evidentiary support Lockhart submitted in his initial

       petition for post-conviction relief because he, again, in this appeal from the

       denial of his successive petition for post-conviction relief, improperly relies

       upon exhibits that were excluded from evidence by the post-conviction court.

       The court below found:


               10. The Petitioner has repeatedly attempted to introduce letters
               and documents that were forged, according to his attorney at the
               time. The attorney testified at the PCR in the 2008 hearing that
               the signature on the affidavit offered by Petitioner was not his.


                                                      ***


               14. The purported documents submitted to support Petitioner’s
               petition have been submitted and considered in previous
               hearings, and have been stricken under separate Order.


       Appellant’s App. p. 181.


[48]   The post-conviction court’s factual findings on the matter of any newly

       discovered evidence are not clearly erroneous. We are satisfied that the post-

       conviction court—in its unique position of weighing evidence and judging

       witness credibility—duly considered whether Lockhart’s claim of ineffective

       assistance of counsel was indeed supported by newly discovered evidence.

       Finding that the evidence Lockhart submitted was not new, the evidence was

       stricken. We agree with the post-conviction court that, in submitting this

       evidence of dubious authenticity again, Lockhart improperly seeks to have it

       reconsidered and reweighed to justify his new assertion of ineffective assistance

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 34 of 36
of counsel. No such evidence was before the post-conviction court, and thus the

post-conviction court concluded:


        1. The Petitioner bears burden [sic] of establishing the grounds for
        relief by a preponderance of the evidence. Ind. Post-Conviction
        Rule 1(5); Wright v. State, 881 N.E.2d 1018 (Ind. Ct. App.
        2008).


                                               ***


        6. Petitioner has waived his right to an evidentiary hearing in this
        cause by requesting that the matter be submitted by affidavit.


        7. Petitioner, in submitting documents previously considered by
        the trial court and appeals court, now improperly seeks to have
        those documents reconsidered and reweighed.


        8. Petitioner has submitted nothing that has not been considered
        previously by the court.


        9. Petitioner has failed in meeting his burden of proving his
        claims by a preponderance of the evidence.


        10. Petitioner’s [successive] Amended Petition for Post-
        Conviction Relief is Denied.


Appellant’s App. p. 182.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 35 of 36
                                                 Conclusion
[49]   We hold that the successive post-conviction court did not err when it found that

       Lockhart’s submissions were without evidentiary value without holding an

       evidentiary hearing.


[50]   For all of these reasons, the post-conviction court’s denial of Lockhart’s

       successive petition for post-conviction relief is affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-195 | November 27, 2019   Page 36 of 36
