Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                                          Oct 10 2014, 9:44 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT PRO SE:                                           ATTORNEYS FOR APPELLEE:

NICHOLAS SUDING                                             GREGORY F. ZOELLER
Carlisle, Indiana                                           Attorney General of Indiana

                                                            IAN MCLEAN
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

NICHOLAS SUDING,                                    )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )   No. 32A01-1309-PC-426
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )


                     APPEAL FROM THE HENDRICKS SUPERIOR COURT
                         The Honorable Carol J. Orbison, Special Judge
                                Cause No. 32D04-1203-PC-2


                                         October 10, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                              Case Summary

          Pro-se Petitioner Nicholas Suding (“Suding”) appeals the denial of his petition for

post-conviction relief, which challenged his convictions for three counts of Conspiracy to

Commit Murder.1 We affirm.

                                                    Issues

          Suding articulates nine issues for review. We address those issues that are not waived,

res judicata, or procedurally defaulted,2 consolidated as the following four issues:

          I.      Whether error in the post-conviction proceedings deprived Suding of
                  procedural due process;

          II.     Whether Suding is entitled to a new trial because the State failed to
                  disclose exculpatory evidence in violation of Brady v. Maryland, 373
                  U.S. 83 (1963);

          III.    Whether Suding was denied the effective assistance of trial counsel;
                  and

          IV.     Whether Suding was denied the effective assistance of appellate
                  counsel.

                                    Facts and Procedural History

          The relevant facts were recited by a panel of this Court on direct appeal, as follows:


1
    Ind. Code §§ 35-42-1-1, 35-41-5-2.

2
 Post-conviction procedures do not afford petitioners with a “super-appeal”; rather, the post-conviction rules
contemplate a narrow remedy for subsequent collateral challenges to convictions. Reed v. State, 856 N.E.2d
1189, 1194 (Ind. 2006). The purpose of a petition for post-conviction relief is to provide petitioners the
opportunity to raise issues not known or available at the time of the original trial or direct appeal. Stephenson
v. State, 864 N.E.2d 1022, 1028 (Ind. 2007). If an issue was known and available but not raised on direct
appeal, the issue is procedurally foreclosed. Id. If an issue was raised and decided on direct appeal, it is res
judicata. Id. Moreover, collateral challenges to convictions must be based upon grounds enumerated in the
post-conviction rule. Shanabarger v. State, 846 N.E.2d 702, 707 (Ind. Ct. App. 2006), trans. denied; see also
Post-Conviction Rule 1(1). To the extent that Suding attempts to raise free-standing issues, they are not
properly addressed through post-conviction proceedings. Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002).

                                                       2
      In February 2009, Suding’s wife, Renee, became concerned about Suding’s
      anger toward Tamara Scott, his ex-wife and mother of his daughter, S.S.
      Suding purchased devices to open locks and Renee heard him talking about
      entering Scott’s house to stab her. At a June 2009 hearing, the trial court
      entered an order protecting Scott and S.S. from Suding. After the hearing
      Renee heard Suding talk about killing Scott, her lawyer, and the judge who
      presided over the protective order hearing.

      In July 2009, Suding took Renee to various locations in Illinois and Kentucky
      that could serve as hideouts after the murders. Around that same time, Suding
      sold his rifle and bought two handguns. He told Renee he bought the weapons
      at a flea market because weapons purchased there could not be traced to him.
      After purchasing the handguns, Suding made two-liter bottles into silencers.
      In late July 2009, Suding instructed Renee to follow the judge and Scott’s
      attorney to determine what cars they drove, where they lived, and where they
      parked.

      On July 28, Renee reported Suding’s activities to the Hendricks County
      Sheriff’s Department. Detective Roger Call gave Renee a recording device
      and she recorded a conversation during which Suding discussed how he would
      blow up the judge’s house with propane, what would happen after he killed
      Scott, and the order and manner in which he would kill his victims. Suding
      was arrested and the State ultimately charged him with six counts of Class A
      felony conspiracy to commit murder. A jury found Suding guilty of three
      counts. The court sentenced him to forty years imprisonment, with five years
      suspended for each count, to be served concurrently.

Suding v. State, 945 N.E.2d 731, 734-35 (Ind. Ct. App. 2011), trans. denied.

      Suding’s court-appointed counsel raised five issues on appeal, challenging Suding’s

convictions and sentence. The convictions and sentence were affirmed. Id. at 734.

      On March 13, 2012, Suding filed a pro-se petition for post-conviction relief. He also

filed a motion seeking a change of judge; the motion was denied. On June 21, 2012, Suding

filed an amended petition for post-conviction relief. An evidentiary hearing was held on

September 7, 2012, at which Suding appeared pro-se. The hearing was resumed on

December 14, 2012, at which time Suding appeared by counsel. At the conclusion of the

                                            3
hearing, the post-conviction court ordered the parties to submit proposed findings of fact and

conclusions thereon.

        On February 4, 2013, Suding filed motions requesting that the post-conviction court

take judicial notice of certain facts. The State moved to strike various requests for

admissions issued by Suding, and Suding requested judicial notice of the fact that he had

served the State with the requests for admissions on January 29, 2013. On February 15,

2013, the post-conviction court denied Suding’s motions to take judicial notice. On February

21, 2013, the court granted the State’s motion to strike. On April 18, 2013, Suding filed a

motion for summary judgment; the State responded that the motion was untimely. On April

29, 2013, the post-conviction court denied the motion for summary judgment. The parties

filed their respective proposed findings and conclusions; Suding filed a motion to strike the

State’s proposal. This motion was denied.

        On July 31, 2013, the post-conviction court entered its findings, conclusions, and

order denying Suding post-conviction relief. Suding filed a motion to correct error,3 which

was denied on September 3, 2013. Suding now appeals.

                                      Discussion and Decision

                                          Standard of Review

        The petitioner in a post-conviction proceeding bears the burden of establishing the

grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);



3
 After the post-conviction order was entered, Suding filed a “Motion to Compel the Production of Exculpatory
Evidence,” claiming that the State had Suding’s personal phone records and bank records. (App. 1753). He
also sought relief via a petition for a writ of mandamus.

                                                     4
Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing from the denial of post-

conviction relief, the petitioner stands in the position of one appealing from a negative

judgment. Id. On review, we will not reverse the judgment of the post-conviction court

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

that reached by the post-conviction court. Id. A post-conviction court’s findings and

judgment will be reversed only upon a showing of clear error, that which leaves us with a

definite and firm conviction that a mistake has been made. Id. In this review, findings of

fact are accepted unless they are clearly erroneous and no deference is accorded to

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

evidence and the credibility of witnesses. Id.

               Error in Post-Conviction Proceedings – Procedural Due Process

        Suding claims that the post-conviction court committed various errors in its conduct of

the proceedings. According to Suding, he was entitled to a change of judge, a change of

venue, judicial notice of facts addressed by requests for admission, the entry of summary

judgment, and the striking of the State’s proposed findings of fact and conclusions thereon.

Suding asserts that the errors of the post-conviction court were so pervasive that he was

denied due process.4

Motion for Change of Judge. Suding claims that he was denied an impartial judge,

something critical to due process. According to Suding, the post-conviction judge was


4
  On April 29, 2013, Suding filed his “Second Complaint Against Judge” with the Indiana Commission on
Judicial Qualifications. (App. 1274.) Therein, Suding alleged that he had been denied procedural due process
when the post-conviction judge refused to deem certain facts admitted by the State or grant Suding summary
judgment.

                                                     5
required to avoid even the appearance of bias and, once her impartiality was called into

question, she was required to recuse herself.

         Pursuant to Indiana Post-Conviction Rule 1(4)(b), a petitioner may request a change of

judge “by filing an affidavit that the judge has a personal bias or prejudice against the

petitioner” and stating “the facts and the reasons for the belief that such bias or prejudice

exists.” The post-conviction court is obliged to grant the motion only “if the historical facts

recited in the affidavit support a rational inference of bias or prejudice.” Id. On appeal, we

presume that the judge is unbiased, and will overturn the denial of a motion for change of

judge only upon a showing of clear error. Azania v. State, 778 N.E.2d 1253, 1261 (Ind.

2002).

         Suding’s motion for change of judge, filed contemporaneously with his petition for

post-conviction relief, was accompanied by an affidavit stating: “[T]he P.C.R. 1 petition

alleges judicial misconduct and the petitioner intends to subpoena her as a witness to the

ineffective assictanc [sic] of trial counsel which puts her in a position of conflicted interest

disqualifying her.” (App. 27.) This language does not provide facts and reasons for the

belief that bias or prejudice exists. Moreover, the trial judge could not have testified about a

case tried before her. Cornett v. Johnson, 571 N.E.2d 572, 575 (Ind. Ct. App. 1991); Clary v.

Lite Machines Corp., 850 N.E.2d 423, 435 (Ind. Ct. App. 2006).

         On appeal, Suding has made an additional allegation; specifically, that the post-

conviction judge conferred ex parte with other judges (one an alleged intended victim of the

instant conspiracy). He does not point to evidence of record in this regard or explain how a


                                                6
judicial conference of unknown subject matter could entitle him to post-conviction relief.

Suding also contends that the judge was obliged to disqualify herself after learning that

Suding had filed complaints against her with the Judicial Commission on Judicial

Qualifications. In these complaints, Suding identified no judicial misconduct apart from the

judge’s issuance of rulings unfavorable to Suding.

       Suding now insists that the post-conviction judge was derelict in her duties for failing

to grant Suding an additional hearing, strike the State’s proposed findings and conclusions,

grant summary judgment in Suding’s favor, and take judicial notice of numerous matters at

Suding’s request. In effect, he argues that the post-conviction court was biased in entering

adverse rulings against him. Yet an adverse ruling is not sufficient to show bias or prejudice.

Flowers v. State, 738 N.E.2d 1051, 1060 n.4 (Ind. 2000). Instead, a party “must show that

the trial judge’s action or demeanor crossed the barrier of impartiality and prejudiced” his

case. Id. at 1061. Suding has not done so.

Venue/Jurisdiction. According to Suding, he was not tried on the conspiracy charges in a

court of proper venue and having jurisdiction over his person. This argument was available

to Suding on direct appeal and was not raised. It is res judicata and we will not address it

here. Stephenson, 864 N.E.2d at 1028.

Requests for Taking of Judicial Notice. On February 4 and 5, 2013, Suding filed motions to

take judicial notice of “the fact that”: Suding had pled not guilty; no counsel was present

with Suding at his arraignment; on August 17, 2009, Suding had first requested the

appointment of counsel; no counsel was present at Suding’s second preliminary hearing on


                                              7
September 4, 2009; trial counsel for Suding had anticipated a need for a continuance; trial

counsel failed to tender a request for a continuance after the charges were amended; Suding

was married to Renee Suding-Sanders on December 1, 2008; no hearing was conducted

regarded Suding’s request for appointment of new counsel; Suding had requested that new

counsel be appointed; trial counsel filed a motion in limine as to Indiana Trial Rule 404

evidence and the motion in limine had been granted; trial counsel failed to tender a timely

objection as to Trial Rule 404 evidence; an order of protection had been issued by Judge

Smith on August 6, 2009; on August 3, 2009, an order disqualifying Judge Smith had been

issued, together with a request for a special judge; there had been no assertion of marital

privilege at Suding’s trial; Suding had been married to Renee Suding-Sanders up until their

divorce on October 19, 2010; Suding had requested that the prosecution provide the defense

with discovery materials; there is no evidence to show that the prosecution relinquished to

Suding the fruits of the subpoena for Suding’s personal telephone records; the prosecution

had requested and received a subpoena for Suding’s personal telephone records; no notice of

alibi was given and no alibi defense was presented at trial; Suding requested that his trial

counsel appeal the denial of a motion for reduction of his bail; trial counsel did not appeal the

denial of bail reduction; and Suding had given specific outline instructions to his trial

counsel. (App. 166-229.) Suding also requested that the post-conviction court take judicial

notice of the trial court record.




                                               8
        On February 8, 2013, the post-conviction court denied the requests,5 stating the

reasons for the denial:

        The evidentiary hearing on Defendant’s Petition for Post Conviction Relief,
        during which the Defendant and the State were given the opportunity to
        present evidence and call witnesses, concluded on December 14, 2012.

        The parties have now been ordered to prepare proposed Findings of Fact and
        Conclusions of Law, and have been given dates for said findings and
        conclusions to be filed with the Court.

        The foregoing motions constitute pre-trial discovery, which discovery process
        was concluded at the close of the aforementioned evidentiary hearing on
        December 14, 2012.

(App. 375.)

        On February 11, 2013, Suding filed additional motions: a motion to amend his

requests for admissions and stipulations of facts and his “Verified Motion to Take Judicial

Notice that Petitioner Served Request For Admissions and Stipulation of Facts upon

Hendricks County Prosecutor on 1-24-13 and were received and signed on 1-29-13.” (App.

377.) On February 15, 2013, the post-conviction court denied these motions as untimely.

        On February 21, 2013, Suding filed a “Petitioner’s Response to State’s Response to

Numerous Defense Pleadings” requesting that the post-conviction court reconsider its earlier

rulings and “grant the Petitioner’s requests in the above matters so that due process of the law

is upheld in the interest of justice.” (App. 379, 388.) His request for reconsideration was

unsuccessful. Suding now claims that the post-conviction court judge ignored a mandatory




5
  We note, however, that the post-conviction court judge had stated – in open court – that she was taking
judicial notice of Suding’s trial transcript.

                                                   9
duty to take judicial notice of facts established according to Indiana Evidence Rule 201(a),

which, at the time of Suding’s requests, provided:

       A court may take judicial notice of a fact. A judicially-noticed fact must be
       one not subject to reasonable dispute in that it is either (1) generally known
       within the territorial jurisdiction of the trial court, or (2) capable of accurate
       and ready determination by resort to sources whose accuracy cannot
       reasonably be questioned.

Subsection (d) provided: “A court shall take judicial notice if requested by a party and

supplied with the necessary information.”

       The majority of Suding’s “requests for admissions” concerned historical events of his

trial, such as his plea, request for counsel, motions by counsel, and rulings. The post-

conviction court had taken judicial notice of the trial proceedings. Thus, Suding’s post-

hearing motions for judicial notice were largely superfluous. Moreover, a portion of the

factual information – such as Suding’s marital status at the time of trial – had been

established at the post-conviction hearings. To the extent that the requests for admissions

address something not presented at trial or at either post-conviction hearing, they were not

timely filed. As the post-conviction court observed, Suding had rested his case at the

conclusion of the December 14, 2012 evidentiary hearing. Although he baldly claims he was

denied due process, Suding provides no authority to suggest that Evidence Rule 201 operates

as a mechanism to supplement a party’s evidence after that party has been given a full and

fair opportunity for the presentation of evidence.

Requests for Admission. Indiana Trial Rule 26(A)(5) provides for a method of discovery

whereby requests for admissions may be propounded upon a party. Requests for admission


                                              10
are intended to “simplify pre-trial investigation and discovery, facilitate elimination of

unnecessary evidence at trial” and reduce the time and expense demanded by litigation.

General Motors Corp. v. Aetna Cas. & Sur., 573 N.E.2d 885, 888 (Ind. 1991).

       Suding attached purported requests for admissions to several of his motions. The

requests are addressed not to the State, as the opposing party in post-conviction proceedings,

but to individuals such as the trial prosecutor, deputy prosecutor, a judge, a detective and a

witness. The requests sought admissions or stipulations that exculpatory evidence was

withheld, the search warrant was illegal, perjury had been solicited and committed, evidence

had been mischaracterized in argument to the jury, and Suding’s wife had engaged in drug

use and financial misconduct. The requests were not made until after the presentation of

evidence at the September and December hearings. Accordingly, these requests were not

calculated to elicit admissions from a party that could simplify pre-trial investigation and

discovery by establishing facts otherwise in contention. See id.

       Moreover, post-conviction proceedings are not designed to permit attacks upon trial

witness credibility, but rather to address issues demonstrably unavailable at trial and on direct

appeal. Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002). The post-conviction court did not

err in determining that the State need not respond to untimely requests for admission

addressed to non-parties in an effort to collaterally attack the reliability and credibility of trial

evidence.

Motion for Summary Judgment. Post-Conviction Rule 1(4)(g) grants the court discretion to

consider all pleadings, depositions, answers to interrogatories, admissions, stipulations of


                                                 11
fact, and any affidavits submitted in determining whether a motion for summary disposition

has merit.

       In Hough v. State, 690 N.E.2d 267, 269 (Ind. 1997), an appeal from a grant of

summary judgment to the State in post-conviction proceedings, our Supreme Court stated:

“The summary judgment procedure that is available under Indiana Post-Conviction Rule

1(4)(g) is the same as under Trial Rule 56(C).” Under both rules, summary judgment is to be

granted when there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Id. (citing Ind. Post-Conviction Rule 1(4)(g); Ind. Trial Rule

56(C)). The moving party must designate evidence to prove that there are no genuine issues

of material fact and that he is entitled to judgment as a matter of law and the burden then

shifts to the nonmoving party to show that there is a genuine issue of material fact. Id. Any

doubts about the existence of a fact or an inference to be drawn therefrom are to be resolved

in favor of the nonmoving party. Id. Upon review, we apply the same standard as the trial

court and the party appealing the summary judgment order must show the appellate court that

the trial court erred. Id.

       Here, Suding moved for summary judgment after the evidentiary hearing was

conducted. “[I]t is clear that a motion for summary judgment after all the evidence has been

presented at trial is inappropriate.” McMahon v. Snap on Tool Corp., 478 N.E.2d 116, 119

n.1 (Ind. Ct. App. 1985).




                                             12
Motion to Strike State’s Proposed Findings and Conclusions. After the State filed proposed

findings and conclusions, Suding moved to strike the proposals in their entirety because of

non-compliance with Indiana Trial Rule 11(A), which provides in part:

       Every pleading or motion of a party represented by an attorney shall be signed
       by at least one [1] attorney of record in his individual name, whose address,
       telephone number, and attorney number shall be stated, except that this
       provision shall not apply to pleadings and motions made and transcribed at the
       trial or a hearing before the judge and received by him in such form. . . . If a
       pleading or motion is not signed or is signed with intent to defeat the purpose
       of the rule, it may be stricken as sham and false and the action may proceed as
       though the pleading had not been served.

Suding also filed an “objection” to the State’s proposed findings and conclusions requesting

that the post-conviction court “take into account the false statements made by the State and

strike from the record these falsities, strike from the record the attempts by the State to mis-

lead this Court with its false statements, take into account that the State has LIED to this

Court, note that the false statements made by the State are objected to, by the Petitioner and

grant the Petitioner his requested Post Conviction Relief in full[.]” (App. 1733-34.)

Suding’s objection was unavailing. The post-conviction court did not strike the State’s

proposed findings and conclusions. Nonetheless, the post-conviction court did not adopt the

findings and conclusions in full.

       On appeal, Suding asserts that the State’s proposed findings and conclusions should

have been stricken at his request because the document was unsigned and unaccompanied by

a certificate of service. He further asserts that the “failure to comply with [Trial Rules 5 and

11] is fatal to the pleading; failure on both of these requirements compounds this fatality …

This failure requires this reviewing Court vacate Suding’s conviction.” Appellant’s Brief at

                                              13
26. Suding does not develop an argument, with citation to relevant legal authority, to support

his bald assertion.

       A party waives any issue raised on appeal where the party has failed to develop a

cogent argument or provide adequate citation to authority and portions of the record. Smith

v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005), trans. denied. Suding has failed to

comply with Appellate Rule 46 and we will not review a bald assertion of error.

                       Alleged Exculpatory Evidence – Brady Claim

       Suding contends that he is entitled to a new trial because the State failed to turn over

exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963). Specifically,

Suding claims that the State received his personal telephone records for the date on which the

incriminating tape was made but failed to tender them to Suding’s counsel. According to

Suding, the records are exculpatory in that they would “place Suding miles and hours away

during the alleged commission of the crime.” Appellant’s Brief at 28.

       The State has an affirmative duty to disclose material evidence favorable to the

defendant. State v. Hollin, 970 N.E.2d 147, 153 (Ind. 2012). “[T]he suppression by the

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

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

faith of the prosecution.” Brady, 373 U.S. at 87. Evidence is material “if there is a

reasonable likelihood that it might have affected the outcome of the trial.” Samaniego v.

State, 679 N.E.2d 944, 948 (Ind. Ct. App. 1997), trans. denied.




                                              14
           The establishment of a Brady claim requires that the defendant show: “(1) that the

prosecution suppressed evidence, (2) that the evidence was favorable to the defense, and (3)

that the evidence was material to an issue at trial.” Minnick v. State, 698 N.E.2d 745, 755

(Ind. 1998). The State will not be found to have suppressed material evidence if it was

available to the defendant through the exercise of reasonable diligence. Bunch v. State, 964

N.E.2d 274, 297 (Ind. Ct. App. 2012), trans. denied. The suppression of Brady evidence is

constitutional error warranting a new trial. Id. at 298.6

           The records at issue here are Suding’s personal telephone records. Although Suding

claims he attempted to obtain his records from the service providers, there is no evidence as

to when this attempt occurred or why, through the exercise of reasonable diligence, Suding

was allegedly unable to timely obtain his own records. Nor does he explain how the personal

telephone records would provide exculpation.

           After the post-conviction order denying him relief was entered, Suding filed his

“Motion to Compel Production of Exculpatory Discovery Evidence,” claiming that the State

was obliged to turn over Suding’s personal telephone records and bank statements pursuant

to Indiana Trial Rule 28(H), which provides:

        Discovery after judgment may be had in proceedings to enforce or to challenge
        the judgment.

6
 When, in post-conviction proceedings, a petitioner claims that he has newly-discovered evidence that could
not have been addressed upon direct appeal, he must also demonstrate that: “(1) the evidence has been
discovered since the trial; (2) it is material and relevant; (3) it is not cumulative; (4) it is not merely
impeaching; (5) it is not privileged or incompetent; (6) due diligence was used to discover it in time for trial;
(7) the evidence is worthy of credit; (8) it can be produced upon a retrial of the case; and (9) it will probably
produce a different result at retrial.” Kubsch v. State, 934 N.E.2d 1138, 1145 (Ind. 2010). When a post-
conviction petitioner is unable to establish these nine requirements for alleged newly-discovered evidence, a
Brady claim premised upon that same evidence will also fail. Id. at 1146.

                                                      15
To the extent that Suding may be said to have raised a Brady claim, his motion only

tangentially addresses exculpation: “this information relates specifically to the Petitioner’s

whereabouts, at the time of the alleged recording, a subject very much at issue in this case.”

(App. 1754.)

          He asserts that the personal records “mirror his company phone records.”

Appellant’s Brief at 10. The company records – provided by Verizon Wireless to Suding’s

employer and admitted at the post-conviction hearing – indicate only that calls were placed to

or from Suding’s telephone between 6:26 a.m. and 4:50 p.m. on July 29, 2009. They do not

show that Suding was miles and hours away from his wife during the recording made by her.7

Nor do they tend to show that Suding did not engage in a conspiracy.

          As best we can discern, Suding’s argument of exculpation at least partially rests

upon his premise that the police officer providing the recording device committed perjury

when he testified that he turned on the recorder at 2:30 p.m. If the recording began in the

morning, as Suding has claimed in submissions to the post-conviction court, the tape would

arguably have come to an end while Suding was at work or away from home. However, the

attack on witness credibility does not establish a Brady claim. Suding has not shown that the

State failed to disclose material exculpatory evidence.

                                    Effectiveness of Trial Counsel

        Suding contends he was denied the effective assistance of trial counsel. Effectiveness

of counsel is a mixed question of law and fact. Strickland v. Washington, 466 U.S. 668, 698

7
 Suding states that the recording started “at 4:47 p.m. and at 7:30 p.m.” Appellant’s Brief at 31. He provides
no record citation for this statement.

                                                     16
(1984). We evaluate Sixth Amendment claims of ineffective assistance under the two-part

test announced in Strickland. Id. To prevail on an ineffective assistance of counsel claim, a

defendant must demonstrate both deficient performance and resulting prejudice. Dobbins v.

State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687). Deficient

performance is that which falls below an objective standard of reasonableness. Strickland,

466 U.S. at 687; see also Douglas v. State, 663 N.E.2d 1153, 1154 (Ind. 1996). Prejudice

exists when a claimant demonstrates that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind. 1996). The

two prongs of the Strickland test are separate and independent inquiries. Strickland, 466 U.S.

at 697. Thus, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice . . . that course should be followed.” Id.

       We “strongly presume” that counsel provided adequate assistance and exercised

reasonable professional judgment in all significant decisions. McCary v. State, 761 N.E.2d

389, 392 (Ind. 2002). Counsel is to be afforded considerable discretion in the choice of

strategy and tactics. Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001). Counsel’s

conduct is assessed based upon the facts known at the time and not through hindsight. State

v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997). We do not “second-guess” strategic decisions

requiring reasonable professional judgment even if the strategy in hindsight did not serve the

defendant’s interests. Id. In sum, trial strategy is not subject to attack through an ineffective


                                               17
assistance of counsel claim, unless the strategy is so deficient or unreasonable as to fall

outside the objective standard of reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141

(Ind. 1998).

       In his petition for post-conviction relief, Suding claimed that his trial counsel was

ineffective for her failure to: thoroughly attack his wife’s credibility, assert the marital

privilege to prevent his wife’s testimony, present an alibi defense, challenge hearsay, present

an intoxication defense, challenge the validity of the search warrant, file appropriate motions,

lodge objections and expand cross-examination, hire expert witnesses, and investigate

aspects of his wife’s recollection of an alleged trip to Kentucky and Illinois to look for a

campground site suitable for hiding out. Suding also claimed that trial counsel Cynthia

Helfrich (“Helfrich”), as a public defender, had a conflict of interest that precluded her

effective representation of him; that is, she was dependent for her livelihood upon

assignments from the trial court judges in whose courts she appeared and lodged defenses.

       In support of his contentions, Suding presented several witnesses at the post-

conviction evidentiary hearings. At the hearing conducted on September 7, 2012, Suding

acted pro-se. Suding elicited testimony from James Myers (“Myers”) concerning Suding’s

work schedule at Poindexter Excavating on July 29, 2009. According to Myers, Suding’s

time card showed that he had worked ten hours on that day; other information indicated that

Suding had purchased gas in Danville, Indiana at 8:19 p.m. Myers had “no idea” what

Suding did after work. (Tr. 14.) Michele Jackson testified that she had not been contacted

by Suding’s trial attorney to provide an alibi for Suding, although she had customarily met


                                              18
with Suding “almost every evening” around 5:45 to 6:00 p.m. (Tr. 32.) Mike Covey testified

that he had acted as a liaison between Suding and Helfrich but Helfrich had refused his calls.

Shane Bunnell testified that Helfrich had not contacted him to investigate whether Renee had

“cleaned out” the marital bank account. (Tr. 39.)

       Suding called Helfrich as a witness and elicited her admissions that she had not

requested drug testing of Renee, she had not asserted spousal privilege to prevent Renee’s

testimony, she had not requested funds for an expert witness, she had not presented an alibi

defense, and she had not consulted with an expert regarding the futility of a soft drink bottle

as a home-made gun silencer. Helfrich testified that she did not believe that Suding could

present a viable alibi defense, in part because he had acknowledged in a police interview that

it was his voice on the tape Renee had turned over to authorities. In Helfrich’s opinion, the

best defense was that Suding had merely been “blowing off steam” and had no intent to

commit murder. (Tr. 61.) Helfrich further testified that she had researched spousal privilege

and believed that Renee was legally permitted to waive her spousal privilege and testify

against Suding. She opined that Renee’s drug use was known to jurors because an

evidentiary photograph showed marijuana as an item present when the Suding residence was

searched. Also, Helfrich noted that Renee had admitted to drug use.

       When the evidentiary hearing was reconvened on December 14, 2012, Suding was

represented by counsel, who continued the direct examination of Helfrich. Helfrich

acknowledged that she had received a letter of explicit instructions from Suding regarding his

desired representation; in at least some instances, Helfrich had not complied with Suding’s


                                              19
directives. She further acknowledged that she had not requested Suding’s personal telephone

records and she didn’t “believe” she saw such records supplied by the State. (Tr. 130.)

However, Helfrich stated that she had “no reason to believe” that the telephone records were

exculpatory. (Tr. 131.) She had chosen to pursue a defense – consistent with Suding’s claim

to police that he had been joking – that Suding was “blowing off steam” when he made

recorded statements to Renee. (Tr. 170). Helfrich reiterated her opinion that an alibi defense

was not viable and, given the tape recording, Renee’s identification, and Suding’s statement

to police, could only bring “incredulous looks from the jury.” (Tr. 172.)

       When questioned concerning a possible conflict of interest on the part of her law

partner, Helfrich indicated that her partner had represented North Salem Bank in a collection

matter. However, she denied having any knowledge of a case involving Suding and North

Salem Bank. Helfrich conceded that she had not appealed the denial of a bond reduction, she

had not moved to suppress evidence gained in the execution of the search warrant, she had

not challenged venue, and, during the State’s opening statement, she had “dropped the ball”

as to an appropriate objection. (Tr. 167.) Explaining her lack of challenge to the search

warrant, Helfrich disagreed with Suding’s contention that a police detective had made a false

statement in order to procure the warrant.

       Suding testified that he had informed Helfrich of Renee’s mental health history,

including schizophrenia, depression, anxiety, and post-traumatic stress disorder. According

to Suding, he had received less than all of Renee’s mental health records in response to his

endeavors to obtain them. He expressed his belief that the search warrant for his residence


                                             20
specifically excluded vehicles and he explained that he had desired the trial-preparation

assistance of a voice analyst, a firearms expert, and an expert to interpret Renee’s mental

health records.8

        On appeal, Suding claims that he had a viable alibi defense, which his trial counsel

ignored. The failure to present an alibi defense is not necessarily ineffective assistance of

counsel. D.D.K. v. State, 750 N.E.2d 885, 891 (Ind. Ct. App. 2001). Suding alleges he had

ready and willing alibi witnesses that Helfrich did not contact. However, the evidence

presented at the post-conviction hearing does not support Suding’s claim of alibi. His former

employer acknowledged that Suding worked long hours; his friend Michele Jackson

indicated that she customarily met with Suding in the early evening. This testimony falls far

short of relating that, in the specific time frame of the challenged tape recording, Suding was

with a person other than his wife in a different location. Helfrich’s decision to forego an

alibi defense and argue that Suding could be heard on tape venting his emotions as opposed

to seriously planning murders is within the range of reasonable professional norms.

        As Suding observes, Indiana law provides for the assertion of a marital privilege.

Husbands and wives “shall not be required to testify … as to communications made to each

other.” Ind. Code § 34-46-3-1(4). The privilege protects against compelled testimony, but

does not bar the spouse from testifying if the spouse chooses to do so. Glover v. State, 836

N.E.2d 414, 422 (Ind. 2005). Renee waived the marital privilege and testified against



8
 Suding attempted, through the testimony of his teenaged daughter, to present evidence that he may have been
involuntarily intoxicated as a consequence of Renee’s conduct. However, the proffered testimony was stricken
by the post-conviction court upon motion from the State.

                                                    21
Suding. Despite Suding’s wishes to the contrary, Suding’s trial attorney could not prevent

Renee’s testimony by pointing out that she was Suding’s wife on the date of communication.

       As for an alleged conflict of interest arising from Helfrich’s law partner’s

representation of a bank, Suding has failed to show its actual existence. Although Suding

alludes to some account at North Salem Bank, the post-conviction evidence indicates only

that Renee “cleaned out” an account and Helfrich’s partner, Mr. Casey, had represented

North Salem Bank “on a collection matter.” (Tr. 30, 152.) Helfrich denied having any

knowledge of a case involving Suding and the bank her partner represented.

       Suding has also strenuously argued that his trial counsel should have moved to

suppress evidence obtained as a result of a search warrant. Although it is not entirely clear

what items were obtained from the residence and what items were obtained from a vehicle,

Suding insists that incriminating evidence – apparently, firearms – was obtained when

officers exceeded the authority granted under the search warrant and searched a vehicle. He

also claims that a police officer lied about a prior charge against Suding to present Suding in

a negative light and make the issuance of the search warrant more likely. According to

Suding, the officer had ready documentation to show that the charge had been dismissed.

       Helfrich conceded that she did not file a motion to suppress on grounds that the police

exceeded the scope of the search warrant. However, her testimony revealed her trial strategy.

With respect to the firearms, she testified:

       Because I felt that it would be better to let the State bring in the arsenal of guns
       you had and then cross-examine their witnesses on the fact that the guns were
       all legally possessed, and to show the jury that you did nothing wrong with
       possessing the guns. The State was making a big deal of the guns, I didn’t

                                               22
       think they were a big deal, and I, and I thought it was best to show the jury I
       didn’t think they were a big deal.

(Tr. 58.) As for Helfrich’s decision not to oppose the search warrant on grounds that it was

procured by perjury, Helfrich testified that she would not characterize the police officer’s

testimony as “a false statement.” (Tr. 163.) Helfrich explained that the officer had simply

stated that he wasn’t aware of the outcome of a prior charge against Suding.

       As previously observed, counsel is afforded considerable discretion in the choice of

strategy and tactics. Timberlake, 753 N.E.2d at 603. We do not find Helfrich’s strategy so

deficient as to fall outside the objective standard of reasonableness. Too, while Helfrich

admittedly did not object to a reference to domestic violence made by the prosecutor in an

opening statement, an isolated mistake or instance of bad judgment does not necessarily

render representation ineffective. Id.

       Finally, Suding contends that his trial counsel was ineffective for her failure to more

thoroughly challenge Renee’s credibility. In Suding’s view, Renee’s mental health records,

child custody evaluation, subsequent arrest, and alleged drug use would have undermined her

testimony, had trial counsel obtained and presented relevant documentation and expert

witnesses. By the time of the post-conviction hearings, some of Renee’s mental health

records had been provided to Suding, albeit less than he desired. However, he did not

present evidence to the post-conviction court tending to show that Renee had been an

incompetent witness. Moreover, it is clear that trial counsel had a near-insurmountable

burden in challenging Renee’s veracity because the incriminating conversation had been

recorded and Suding had admitted in a police interview that it was his voice on the tape. We

                                             23
cannot say that additional witnesses and documents directed toward and explaining Renee’s

life struggles would likely have changed the outcome of Suding’s trial.

       Trial counsel’s efforts and strategy, although they did not ultimately achieve the result

desired by Suding, were not so unreasonable as to constitute ineffective assistance of

counsel. See Badelle v. State, 754 N.E.2d 510, 539 (Ind. Ct. App. 2001) (deciding in

relevant part that, when trial counsel’s efforts were “more than adequate” to support a chosen

defense, counsel’s decision not to seek out additional witnesses was a judgment call within

the wide range of reasonable assistance), trans. denied.

                                Effectiveness of Appellate Counsel

       A defendant is entitled to the effective assistance of appellate counsel. Stevens v.

State, 770 N.E.2d 739, 760 (Ind. 2002). The two-pronged standard for evaluating the

assistance of trial counsel first enunciated in Strickland is applicable to appellate counsel

ineffective assistance claims. Bieghler v. State, 690 N.E.2d 188, 192 (Ind. 1997). There are

three basic categories of alleged appellate ineffectiveness: (1) denying access to an appeal,

(2) waiver of issues, and (3) failure to present issues well. Id. at 193-95. Here, the second

category is implicated.

       “To show that counsel was ineffective for failing to raise an issue on appeal thus

resulting in waiver for collateral review, the defendant must overcome the strongest

presumption of adequate assistance, and judicial scrutiny is highly deferential.” Henley v.

State, 881 N.E.2d 639, 645 (Ind. 2008). Upon review, the performance prong is evaluated by

applying the following test: (1) whether the unraised issues are significant and obvious from


                                              24
the face of the record and (2) whether the unraised issues are clearly stronger than those

raised. Id.

       Suding claims that his appellate counsel should have argued that the State withheld

exculpatory evidence in violation of Brady. However, for reasons previously discussed, this

was not an issue both “significant and obvious from the face of the record.” Henley, 881

N.E.2d at 645. Suding has not shown that he was denied the effective assistance of appellate

counsel.

                                         Conclusion

       Suding has not shown that he was denied procedural due process. He has not

established a Brady claim; nor has he demonstrated that he was denied the effective

assistance of trial or appellate counsel. Accordingly, the post-conviction court did not err in

denying Suding post-conviction relief.

       Affirmed.

KIRSCH, J., and MAY, J., concur.




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