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 establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                                   GREGORY F. ZOELLER
Public Defender of Indiana                         Attorney General of Indiana

JOHN PINNOW                                        KARL M. SCHARNBERG
Deputy Public Defender                             Deputy Attorney General
Indianapolis, Indiana                              Indianapolis, Indiana

                                                                           Dec 09 2013, 9:59 am

                               IN THE
                     COURT OF APPEALS OF INDIANA

EDWARD R. HOFFMAN,                                 )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
               vs.                                 )       No. 18A02-1307-PC-587
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )


                     APPEAL FROM THE DELAWARE CIRCUIT COURT
                             The Honorable John M. Feick, Judge
                       Cause No. 18C04-0512-FB-26 (18C04-1008-PC-1)



                                        December 9, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Edward R. Hoffman (“Hoffman”) appeals the denial of his petition for post-

conviction relief, contending that the post-conviction court erred when it found that he was

not denied the effective assistance of appellate counsel on his direct appeal. We restate his

contention as the three following issues:

       I.     Whether the post-conviction court erred when it found that Hoffman
              failed to prove his appellate counsel was ineffective for not ensuring
              the DVD of his statement to police was included in the record on
              direct appeal;

       II.    Whether the post-conviction court erred when it found that Hoffman
              failed to prove ineffective assistance of appellate counsel for not
              arguing that the trial court erroneously relied on Hoffman’s lack of
              remorse when it sentenced him; and

       III.   Whether the post-conviction court erred when it found that Hoffman
              failed to prove his appellate counsel was ineffective for not making a
              sufficient argument that his sentence was inappropriate in light of the
              nature of the offense and the character of the offender.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       The facts supporting Hoffman’s convictions as set forth by this court on his direct

appeal are as follows:

              During February 2005, Hoffman returned from overseas to Gaston,
       Indiana, to be with his ailing mother. His mother was a close friend of
       Theresa Critzman’s, stepmother of then thirteen-year-old T.C. When
       Hoffman’s mother died, he continued to live in her home, located about two
       blocks from T.C.’s home. He quickly developed a close relationship with
       the Critzman family and was with them almost daily. Hoffman was in the
       military and, after moving back, also became a volunteer fireman for the
       town. T.C.’s father and stepmother thought Hoffman was a good role model
       for their son, and T.C. looked up to Hoffman and trusted him. Hoffman
       tutored T.C. in math at the end of the 2005 school year. T.C.’s parents
       frequently allowed (and even encouraged) T.C. to spend time alone with


                                             2
Hoffman, as T.C. had been having disciplinary issues at school and was
eventually expelled.

       On one occasion in late spring or early summer of that year, soon after
T.C. turned fourteen, Hoffman took T.C. and other children to the movies.
T.C. then spent the night at Hoffman’s home. After Hoffman’s niece went
to bed, he and T.C. retired to Hoffman’s room and closed the door. They
watched a movie on Hoffman’s laptop computer. Later, Hoffman observed
T.C. looking at pornography on the computer, so he (Hoffman) entered a
search word that caused more pornographic images to appear on the screen.
He then began to wrestle with T.C., which ultimately resulted in him rubbing
his pelvis against T.C. and telling the child he was “horny.” Tr. at 80. He
then asked T.C. to remove his pants. When T.C. refused, Hoffman
threatened to tell T.C.’s parents that he had been caught looking at
pornography.

       T.C. eventually complied with Hoffman’s request. After rubbing
baby oil on his and T.C.’s genitals, Hoffman attempted to insert his penis
into T.C.’s anus. Unable to achieve penetration, Hoffman rubbed his naked
pelvis against T.C. until Hoffman ejaculated on T.C.’s stomach.

       Later that summer, Hoffman moved out of his deceased mother’s
home and paid T.C. to help him pack and unpack. On one occasion while
helping, T.C. spent the night at Hoffman’s new home. While T.C. was using
Hoffman’s computer, Hoffman inserted a pornographic DVD into the
computer for T.C. to watch. The DVD depicted a policeman engaging in
sexual activity with another man. Hoffman told T.C., “you should learn from
this.” Id. at 87. Hoffman proceeded to disrobe, “g[e]t on top of” T.C., and
rub his pelvis against T.C. Id. He then told T.C. that they should “take it to
the shower.” Id. While in the shower with T.C., Hoffman rubbed body wash
on his and T.C.’s genital areas and again attempted anal intercourse. Unable
to penetrate T.C., Hoffman performed oral sex on T.C. and inserted his finger
into T.C.’s anus. After this episode, T.C. asked Hoffman to stop doing this,
and Hoffman agreed.

       On a later date, however, T.C. once again spent the day and night at
Hoffman’s home. During his visit, T.C. observed Hoffman looking at
homosexual pornography involving a military theme. Thereafter, he
purchased two pornographic movies for T.C. from a website. Later that
night, Hoffman began rubbing his pelvis against T.C. After lubricating with
baby oil, Hoffman then inserted his penis into T.C.’s anus. Hoffman, who
was not wearing a condom, ejaculated into the fourteen-year-old child’s
anus.

                                      3
        At the end of summer, T.C. began attending the Youth Opportunity
Center (the YOC), a school for expelled youth. Hoffman offered to drive
T.C. to the YOC each day, and T.C.’s parents accepted. During the daily
trips to school, Hoffman often spoke with T.C. about the offenses. He
warned T.C. that if he told his counselor at the YOC what had happened,
Hoffman would go to jail for a long period of time.

       In mid-September, T.C. ran away from home and was sent to live at
the YOC on a full-time basis after he was retrieved by police. Thereafter,
Hoffman attempted to visit T.C. at the YOC on one occasion and several
times expressed to T.C.’s parents a desire to visit him. When T.C. learned
that Hoffman planned to visit him over Thanksgiving with T.C.’s family,
T.C. acted out. In December, T.C. finally told his counselor about the sexual
encounters with Hoffman.

       After T.C. spoke with an officer of the Delaware County Sheriff’s
Department (the DCSD), the DCSD searched Hoffman’s home pursuant to a
warrant on December 16, 2005. Police recovered, among other things,
several pornographic DVDs, a laptop computer, and a bottle of baby oil. On
December 22, the State charged Hoffman with three counts of sexual
misconduct with a minor as class B felonies (Counts 1, 2, and 3), attempted
sexual misconduct with a minor as a class B felony (Count 4), sexual
misconduct with a minor as a class C felony (Count 5), and dissemination of
matter harmful to minors as a class D felony (Count 6).

       Hoffman’s two-day jury trial commenced on September 11, 2006.
T.C. testified regarding the three separate episodes of sexual conduct, as set
forth above. Further, the trial court admitted into evidence, over Hoffman’s
objection, three pornographic DVDs that were recovered from Hoffman’s
bedroom during the search.

....

       The jury found Hoffman guilty as charged. At the sentencing hearing
on November 1, 2006, the trial court noted, “I was here during the whole trial
and observed the demeanor of the Defendant and he had the same, sullen
look that he has right now. And I see no remorse whatsoever.” Id. at 251.
Further, in its subsequent sentencing order the trial court set forth the
following aggravating and mitigating circumstances:




                                      4
      Mitigating Circumstances:

             1. The defendant led a law-abiding life for a substantial period
             of time before commission of the crimes.
             2. These are the defendant’s first Felony convictions.

             Aggravating Circumstances:

             1. There was a substantial degree of care and planning on the
             part of the defendant in the commission of the crimes.
             a) The defendant’s role was that of a principal.
             b) The defendant carefully arranged several overnight
             occasions, designed to allow him to be alone with the victim
             for extended periods of time.
             2. The Court finds that the facts of the crime are particularly
             heinous or disturbing due to the repeated and progressive
             nature of the occurrences over a significant time period.
             3. The Court finds that the defendant is in need of correctional
             or rehabilitative treatment that can best be provided by his
             commitment to a penal facility.
             4. The Court considers the crime to be particularly devastating
             to the victim, his family members, and/or relatives.
             5. The Court finds that the defendant was in a position of trust,
             having care, temporary custody, or control of the victim of the
             offense.
             6. The Court also considers that the Defendant was a member
             of the armed forces who was trained to protect, not molest, the
             citizens of the United States.

      Appellant’s App. at 212–13. The court found that the aggravators
      outweighed the mitigators and sentenced Hoffman to thirteen years in prison
      for each of the four class B felony convictions (Counts 1–4), six years for the
      class C felony conviction (Count 5), and two years for the class D felony
      conviction (Count 6). The court further ordered the sentences for all six
      counts to be served consecutively because the offenses were “separate and
      distinct acts” and because of his “contact with the victim at [the YOC] and
      his attempts to have the victim remain silent.” Id. at 212.

Hoffman v. State, 18A02-0611-CR-1044 (Ind. Ct. App. Oct. 17, 2007). Attorney Louis

Denney (“Denney”) acted as both Hoffman’s trial counsel and his appellate counsel.



                                            5
       On November 17, 2006, Denney, on behalf of Hoffman, filed a notice of appeal with

the trial court, in which he requested “all hearings of record, including exhibits, and then

in bold, . . . entire record.” Tr. at 12. Hoffman’s videotaped statement to the police was

not included in the direct appeal record. In Hoffman’s direct appeal, the following issues

were raised: (1) abuse of discretion in the admission of two pornographic DVDs; (2) a

claim of double jeopardy; and (3) a claim that his sentence was inappropriate. A panel of

this court, in an unpublished decision on October 17, 2007, affirmed Hoffman’s

convictions and sentence.

       On August 13, 2012, Hoffman, pro se, filed a petition for post-conviction relief. On

November 15, 2012, through counsel, he filed an amended petition, alleging that he was

denied the effective assistance of appellate counsel because Denney failed to ensure that

the DVD of Hoffman’s interview with police was included in the direct appeal record,

failed to argue that the trial court erroneously relied on Hoffman’s lack of remorse when it

sentenced him, and failed to sufficiently argue that Hoffman’s sentence was inappropriate.

An evidentiary hearing was held, and on June 18, 2013, the post-conviction court issued

its findings of fact, conclusions thereon, and judgment and denied Hoffman’s petition for

post-conviction relief, concluding that he received the effective assistance of appellate

counsel. Hoffman now appeals.

                            DISCUSSION AND DECISION

       Hoffman argues that the post-conviction court erroneously denied his petition for

relief. Post-conviction proceedings do not afford the petitioner an opportunity for a super

appeal, but rather, provide the opportunity to raise issues that were unknown or unavailable

                                             6
at the time of the original trial or the direct appeal. Ben-Yisrayl v. State, 738 N.E.2d 253,

258 (Ind. 2000), cert. denied, 534 U.S. 1164 (2002); Wieland v. State, 848 N.E.2d 679, 681

(Ind. Ct App. 2006), trans. denied, cert. denied, 549 U.S. 1038 (2006). The proceedings

do not substitute for a direct appeal and provide only a narrow remedy for subsequent

collateral challenges to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The petitioner for

post-conviction relief bears the burden of proving the grounds by a preponderance of the

evidence. Ind. Post-Conviction Rule 1(5).

       When a petitioner appeals a denial of post-conviction relief, he appeals a negative

judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007), trans. denied. The

petitioner must establish that the evidence as a whole unmistakably and unerringly leads to

a conclusion contrary to that of the post-conviction court. Id. We will disturb a post-

conviction court’s decision as being contrary to law only where the evidence is without

conflict and leads to but one conclusion, and the post-conviction court has reached the

opposite conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans.

denied. The post-conviction court is the sole judge of the weight of the evidence and the

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

denied. We accept the post-conviction court’s findings of fact unless they are clearly

erroneous, and no deference is given to its conclusions of law. Fisher, 878 N.E.2d at 463.

       Hoffman contends that he received the ineffective assistance of his appellate

counsel. The standard of review for a claim of ineffective assistance of appellate counsel

is the same as that for trial counsel. Massey v. State, 955 N.E.2d 247, 257 (Ind. Ct. App.

2011) (citing Bieghler v. State, 690 N.E.2d 188, 192 (Ind. 1997), cert. denied, 525 U.S.

                                             7
1021 (1998)). The petitioner must show that counsel’s performance was deficient in that

counsel’s representation fell below an objective standard of reasonableness and that but for

appellate counsel’s deficient performance, there is a reasonable probability that the result

of the appeal would have been different. Id. at 257-58 (citing Overstreet v. State, 877

N.E.2d 144, 165 (Ind. 2007), cert. denied, 555 U.S. 972 (2008)). As with ineffective

assistance of trial counsel claims, if it is easier to dispose of an ineffectiveness claim on

the ground of lack of sufficient prejudice, that course should be followed. Id. at 258 (citing

Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001), cert. denied, 537 U.S. 839 (2002)).

There are three different grounds for claims of ineffective assistance of appellate counsel:

(1) counsel’s actions denied the defendant access to appeal; (2) counsel failed to raise

issues on direct appeal resulting in waiver of those issues; and (3) counsel failed to present

issues well. Id. (citing Wrinkles v. State, 749 N.E.2d 1179, 1203 (Ind. 2001), cert. denied,

535 U.S. 1019 (2002)).

                       I. Failure to Include Exhibit on Direct Appeal

       Hoffman argues that his appellate counsel was ineffective for failing to ensure that

a DVD recording of his pretrial statement to the police be included in the record on direct

appeal. He contends that the omission of this statement prevented a challenge to a finding

of his lack of remorse for the crimes because, on the pretrial statement, he maintained his

innocence.

       Denney filed a notice of appeal with the trial court in which he requested “all

hearings of records [sic], including exhibits, and then in bold, . . . entire record.” Tr. at 12.

The court reporter prepared the trial transcript and the volume of exhibits to be sent to this

                                               8
court on direct appeal. The exhibit volume contained copies of the documentary evidence,

but there were several non-documentary exhibits, including three pornographic DVDs and

the DVD recording of Hoffman’s pretrial statement to the police that were not included in

the exhibit volume. Instead of including the actual DVDs in the exhibit volume, the court

reporter, interpreting Indiana Appellate Rule 29(B)1 as excluding DVDs as documentary

exhibits, included a photocopy of the front of each DVD instead. Denney did not

specifically ensure that the actual DVD of Hoffman’s statement to the police was sent with

the rest of the record to this court. When asked during the evidentiary hearing on

Hoffman’s petition for post-conviction relief about his failure to make sure that the DVD

was given to this court, Denney responded, “I would not have particularly wanted them to

review it since I thought one of his biggest issues on appeal was whether his sentence was

appropriate or not. I don’t think that, and the stuff contained in that, would have in any

way helped . . . Hoffman.” Id. at 15. The post-conviction court found that Hoffman failed

to prove that Denney’s performance was deficient or how Hoffman was prejudiced by such

performance.

        Hoffman relies on Harris v. State. 861 N.E.2d 1182 (Ind. 2007), for his proposition

that counsel’s performance is deficient when pertinent parts of the record are not included

in the record on appeal. However, Harris is distinguishable from the present case because,

in that case, appellate counsel was found to be ineffective when counsel failed to provide



        1
          Indiana Appellate Rule 29(B) states: “Nondocumentary and oversized exhibits shall not be sent
to the Court, but shall remain in the custody of the trial court . . . during the appeal. Such exhibits shall be
briefly identified in the Transcript where they were admitted into evidence. Photographs of any exhibit
may be included in the volume of documentary exhibits.”

                                                       9
the Court of Appeals with the entire trial transcript, where the argument on appeal focused

on whether the defendant’s two crimes arose out of a single episode of criminal conduct

and, therefore, whether his sentence should have been capped by statute. Id. at 1187-89.

Here, Denney did not fail to include the entire trial transcript; instead, only one exhibit was

not included based on the operation of an appellate rule. Further, Denney stated that he

would have preferred that the Court of Appeals not view the DVD since he did not think it

would have helped Hoffman’s case. Tr. at 15.

       We conclude that Hoffman has failed to prove that he was prejudiced by Denney’s

failure to ensure that the DVD was included in the record on direct appeal. If it is easier to

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

should be followed. Massey, 955 N.E.2d at 258. Hoffman has failed to prove that there is

a reasonable probability that, but for his counsel’s error, the result of his direct appeal

would have been different. During the post-conviction evidentiary hearing, Denney

testified that, in his opinion, the DVD of Hoffman’s statement would not have been helpful

to Hoffman’s case on appeal. Tr. at 15. Denney characterized some of Hoffman’s

statement on the DVD to be “beyond incrimination . . . extremely incriminating.” Id.

Hoffman was charged with and convicted of crimes concerning him having sexual relations

with a fourteen-year-old boy. In his interview with the police, Hoffman admitted that the

victim spent the night at Hoffman’s house and that, during those overnight visits, he and

the victim stayed up late and “messed around, wrestled and stuff.” Pet’r’s Ex. 5. Hoffman

admitted that, on more than one occasion, the victim slept in the same bed as Hoffman. Id.

Further, when confronted with the accusation that he had sexual relations with the fourteen-

                                              10
year-old victim, Hoffman denied the accusation, but stated, “I wouldn’t mind, if he were

older, he is a good looking kid, yes.” Id. Although this statement contains a general denial

of guilt, it is hard to see how it could have helped to show Hoffman’s good character or

mitigate the crimes he committed. Hoffman has not shown that there is a reasonable

probability that the result of his direct appeal would have been different had this exhibit

been included in the record on direct appeal and been viewed by this court.

                    II. Lack of Remorse as an Aggravating Circumstance

       Hoffman contends that his appellate attorney was ineffective for failing to challenge

the trial court’s reliance on his lack of remorse as an aggravating circumstance. He asserts

that because his pretrial statement to the police was not included in the direct appeal record,

his appellate counsel could not challenge the use of the lack of remorse. Hoffman claims

that he maintained his innocence in his pretrial statement and that the trial court therefore

should not have used his lack of remorse for sentencing purposes. He argues that the

erroneous consideration of his lack of remorse was clearly a stronger issue than two of the

arguments his appellate counsel raised on appeal, and his appellate counsel was ineffective

for not raising such in his direct appeal.

       “Ineffective assistance is very rarely found in cases where a defendant asserts that

appellate counsel failed to raise an issue on direct appeal.” Reed v. State, 856 N.E.2d 1189,

1196 (Ind. 2006). This is so because the choice of what issues to raise on appeal is one of

the most important strategic decisions appellate counsel makes. Massey, 955 N.E.2d at

258 (citing Stevens v. State, 770 N.E.2d 739, 760 (Ind. 2002), cert. denied, 540 U.S. 830

(2003)). To establish deficient performance for failing to raise an issue, the petitioner must

                                              11
show that the unraised issue was significant and obvious on the face of the record and that

it was clearly stronger than the issues raised. Id. (citing Fisher v. State, 810 N.E.2d 674,

677 (Ind. 2004)). “‘We give considerable deference to appellate counsel’s strategic

decisions and will not find deficient performance in appellate counsel’s choice of some

issues over others when the choice was reasonable in light of the facts of the case and the

precedent available to counsel at the time the decision was made.’” Brown v. State, 880

N.E.2d 1226, 1230 (Ind. Ct. App. 2008) (quoting Taylor v. State, 717 N.E.2d 90, 94 (Ind.

1999)), trans. denied. We must consider the totality of an attorney’s performance and

“should be particularly sensitive to the need for separating the wheat from the chaff in

appellate advocacy.” Reed, 856 N.E.2d at 1195-96.

          Here, the trial court conducted a two-stage sentencing, where it first had to

determine if Hoffman was a sexually violent predator. In its determination, the trial court

stated:

          As for the first part of sentencing, I’m going to declare him a sexually violent
          predator. I realize the two reports, they differ a little bit with that, but I was
          here during the whole trial and observed the demeanor of the Defendant and
          he had the same, sullen look that he has right now. And I see no remorse
          whatsoever. He will register, pursuant to statute.

Trial Tr. at 251. After ordering Hoffman to register, the trial court stated that whatever

sentence it handed down would be served consecutively because of the separate acts for

which Hoffman was convicted. Then, the trial court continued discussing Hoffman’s

sentence by identifying aggravating and mitigating circumstances and pronouncing the

actual sentence. Nowhere in its discussion of aggravating and mitigating circumstances,



                                                 12
did the trial court mention Hoffman’s lack of remorse. Nor was his lack of remorse

mentioned in the written sentencing statement.

       There is, therefore, no evidence in the record that the trial court used Hoffman’s

lack of remorse as a consideration in imposing his sentence. The evidence showed that the

trial court only discussed Hoffman’s lack of remorse in determining whether he posed a

threat to reoffend and should be considered a sexually violent offender pursuant to statute.

We, therefore, conclude that Hoffman’s appellate counsel could not be ineffective for not

challenging the use of Hoffman’s lack of remorse as an aggravating circumstance when

there was no evidence to support such a challenge. Such an issue was not clearly stronger

than the issues actually raised by appellate counsel on direct appeal. Hoffman has failed

to prove that his appellate counsel’s performance fell below an objective standard of

reasonableness based on prevailing professional norms. Further, because there is no

evidence that his lack of remorse was used as an aggravating circumstance, Hoffman

cannot show prejudice because there is no indication that the outcome of his direct appeal

would have been any different had the issue been raised.

                               III. Inappropriateness Argument

       Hoffman contends that his appellate counsel was ineffective because he raised an

Indiana Appellate Rule 7(B) challenge to Hoffman’s sixty-year sentence, but made no

effort to argue how Hoffman’s sentence was inappropriate in light of the nature of the

offense and the character of the offender. He asserts that, “[i]f appellate counsel had

properly argued why the aggregate sentence is inappropriate, this [c]ourt would have had

to explain why [sixty] years is not inappropriate.” Appellant’s Br. at 19. Hoffman claims

                                            13
that based on the facts that he served in the Army, had no prior criminal history, and his

offense was engaging in non-forcible sexual acts with a fourteen year old during one

summer would have showed that his sixty-year sentence was inappropriate.

       Claims of inadequate presentation of certain issues, as contrasted with denial of

access to an appeal or waiver of issues, are the most difficult for defendants to advance and

reviewing tribunals to support. Overstreet, 877 N.E.2d at 166 (citing Bieghler, 690 N.E.2d

at 195). This is so because such claims essentially require the reviewing court to reexamine

specific issues it has already adjudicated to determine “whether the new record citations,

case references, or arguments would have had any marginal effect on their previous

decision.” Id. Further, an Indiana appellate court is not limited in its review of issues to

the facts and cases cited and arguments made by the appellant’s counsel. Bieghler, 690

N.E.2d at 195. We commonly review relevant portions of the record, perform separate

legal research, and often decide cases based on legal arguments and reasoning not advanced

by either party. Id. “While impressive appellate advocacy can influence the decisions

appellate judges make and does make our task easier, a less than top notch performance

does not necessarily prevent us from appreciating the full measure of an appellant’s claim,

or amount to a ‘breakdown in the adversarial process that our system counts on to produce

just results.’” Id. at 195-96 (quoting Strickland v. Washington, 466 U.S. 668, 696 (1984)).

       In this case, even assuming that appellate counsel’s briefing on the

inappropriateness issue was not adequate, the panel of this court that decided Hoffman’s

direct appeal was not inhibited in its review of this issue. In the determination of whether

Hoffman’s sentence was inappropriate on direct appeal, this court conducted a thorough

                                             14
review of Hoffman’s character and took into account his lack of a prior criminal history

and military service, but offset these with Hoffman’s lack of remorse. Pet’r’s Ex. 4 at 56.

A thorough consideration of the nature of the offense was also conducted where the panel

found that the nature of the offenses was “particularly heinous and disturbing” because

Hoffman “preyed on an especially vulnerable, young boy after developing a close and

trusting relationship with the boy’s family[,]” used that relationship to “groom” the boy,

and ultimately engaged in sexual abuse that escalated in severity “until [Hoffman] finally

accomplished his goal of penetrating [the victim’s] anus with his penis.” Id. at 56-57. This

court further considered that, after the abuse occurred, Hoffman conceived of a plan to

maintain contact with the victim by driving him to the YOC each day and to attempt to

keep the victim quiet about what Hoffman had done. Id. at 57. After looking at the nature

of the offense and the character of the offender, this court determined that Hoffman’s

sentence was not inappropriate. Id.

       Hoffman has not proven prejudice as he has not shown how, even if his appellate

counsel had properly argued this issue, the result of his appeal would have been any

different. Hoffman contends that, if his appellate counsel had properly argued why his

sentence was inappropriate, this court would have had to explain why sixty years is not

inappropriate. However, that is in fact what a panel of this court did on direct appeal. It

looked to both the nature of Hoffman’s offenses and his character and concluded that his

sixty-year sentence was not inappropriate. Hoffman has not shown how this outcome

would have been different had his appellate counsel’s argument been more thorough. We

therefore conclude that Hoffman has failed to show how his appellate counsel was

                                            15
ineffective for not ensuring the DVD of his statement to police was included in the record

on direct appeal, for not arguing that the trial court erroneously relied on Hoffman’s lack

of remorse when it sentenced him, and for not making a sufficient argument that his

sentence was inappropriate in light of the nature of the offense and the character of the

offender. The post-conviction court did not err in denying Hoffman’s petition for post-

conviction relief.

       Affirmed.

ROBB, C.J., and RILEY, J., concur.




                                            16
