MEMORANDUM DECISION
                                                                           Jul 27 2015, 6:49 am
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.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
David A. Smith                                            Gregory F. Zoeller
McIntyre & Smith                                          Attorney General of Indiana
Bedford, Indiana
                                                          Cynthia L. Ploughe
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Larry D. Blanton, Jr.,                                    July 27, 2015

Appellant-Petitioner,                                     Court of Appeals Cause No.
                                                          53A04-1410-PC-509
        v.                                                Appeal from the Monroe Circuit
                                                          Court
                                                          Cause No. 53C05-0904-PC-980
State of Indiana,
Appellee-Respondent.                                      The Honorable Mary Ellen Diekhoff




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 53A04-1410-PC-509 | July 27, 2015           Page 1 of 17
                                             Case Summary
[1]   Larry Blanton appeals the post-conviction court’s denial of his petition for post-

      conviction relief. We affirm.


                                                     Issues
[2]   Blanton raises three issues, which we restate as:


                       I.      whether the post-conviction court properly
                               denied Blanton’s freestanding claim regarding
                               Indiana Criminal Rule 4(C);

                       II.     whether Blanton received effective assistance
                               of trial counsel; and

                       III.    whether Blanton received effective assistance
                               of appellate counsel.

                                                      Facts
[3]   The facts, as stated in Blanton’s direct appeal, follow:

              In the fall of 2001, eleven-year-old T.D. lived with his father and
              stepmother in Effingham, Illinois. His mother and stepfather, Blanton,
              lived in Bloomington, Indiana. T.D.’s mother had visitation every
              other weekend from the time he was three years old. That fall Blanton
              sexually touched T.D. on four consecutive visits to Bloomington. At
              the time of all the touchings Blanton was forty-two years old and T.D.
              was eleven.
              The first incident occurred between midnight and one in the morning.
              T.D. felt Blanton kneeling on his bed. Blanton told T.D. they were
              going to the dump in the morning; T.D. rolled over to go back to sleep,
              but Blanton did not leave. Instead, Blanton picked up T.D.’s right arm
              and put it on his erect penis having T.D. stroke it several times. Then,
              Blanton rubbed his penis on T.D.’s face and lips trying to insert it into
              T.D.’s mouth. T.D. pretended he was asleep, keeping his eyes closed
              and mouth shut as tight as possible, to avoid any further actions by

      Court of Appeals of Indiana | Memorandum Decision 53A04-1410-PC-509 | July 27, 2015   Page 2 of 17
        Blanton. All the while, T.D. could see his mother asleep in her
        bedroom. The next day, T.D. accompanied Blanton to the dump.
        T.D. did not address the incident with Blanton, nor did he report the
        incident to his mother when she drove him back to Effingham. He did
        not tell his father or stepmother once he returned to Effingham.
        Two weeks later T.D. returned to Bloomington for the weekend.
        Again, Blanton’s kneeling on T.D.’s bed awakened him. He forced
        T.D. to stroke his erect penis, rubbed his penis on T.D.’s face and lips,
        and unsuccessfully attempted to insert his penis into T.D.’s mouth.
        T.D. rolled away from Blanton. Blanton inserted his finger into T.D.’s
        anus. T.D. silently wept due to the pain of the violation.
        Two weeks later Blanton repeated his acts. This time, after forcing
        T.D. to stroke his erect penis and rubbing it on T.D.’s face and lips, he
        ejaculated on T.D.’s face. T.D. still did not report any of the incidents
        to his mother, father, or stepmother for fear of his mother and his
        safety.
        The final molestation occurred two weeks later. Blanton again made
        T.D. touch his erect penis before attempting to force T.D. to perform
        oral sex on him. Prior to leaving, however, Blanton placed T.D.’s
        penis in his mouth. T.D. closed his eyes, turned his head, and hoped
        for it to end. During each of T.D.’s encounters with Blanton T.D.
        believed Blanton was intoxicated, as he could smell alcohol emanating
        from Blanton.
        After the fourth incident, the molestations stopped. T.D. did not feel
        confident for approximately a month that it would not happen again,
        but tucked himself extra tight into his sheets. Eventually T.D.’s
        relationship with Blanton became less strained when T.D. noticed
        Blanton stopped drinking.
        For two years T.D. did not say anything about the incidents to
        anyone. In seventh grade T.D. had sexual education classes and his
        friends began talking about sex. It was then he began [to] realize what
        had really happened between Blanton and himself. Then, at the
        beginning of his eighth grade year, his mind began to wander.
        Whenever his mind was not occupied, he thought of the encounters
        with Blanton and his grades began to suffer. His father and
        stepmother asked repeatedly what was causing this change in his
        behavior, but still T.D. did not disclose what happened. Eventually,


Court of Appeals of Indiana | Memorandum Decision 53A04-1410-PC-509 | July 27, 2015   Page 3 of 17
               while watching a special on Michael Jackson, T.D. began to cry and
               told his father about the abuse.
      Blanton v. State, No. 53A01-0606-CR-226, slip op. at 2-4 (Ind. Ct. App. Apr. 19,

      2007).


[4]   On April 26, 2004, the State charged Blanton with Class A felony attempted

      child molesting, two counts of Class A felony child molesting, and Class C

      felony child molesting. Blanton was arrested on April 27, 2004. An initial

      hearing was conducted on April 28, 2004, and the trial court scheduled a

      pretrial conference for June 25, 2004. Blanton filed a motion to continue the

      pretrial conference, and the trial court rescheduled it for July 29, 2004. At the

      pretrial conference, a trial date of March 2, 2005 was set. However, the trial

      court later vacated that date due to court congestion and reset the trial for July

      28, 2005.


[5]   On July 21, 2005, Blanton filed a motion to continue the trial because “[t]he

      State wishes to add witnesses and one at least may be an ‘expert’. Counsel

      would need additional preparation time once the witness or witnesses are

      named.” App. p. 575. The motion also stated: “The State and Defense

      consulted and agreed to request this continuance.” Id. The trial court granted

      the motion for continuance and set a final pretrial conference for September 13,

      2005.1 At the September 13th conference, the trial court set an additional final




      1
        In its brief, the State mistakenly characterizes the September 13, 2005 pretrial conference as a trial date,
      resulting in erroneous calculations in the context of Criminal Rule 4(C).

      Court of Appeals of Indiana | Memorandum Decision 53A04-1410-PC-509 | July 27, 2015                   Page 4 of 17
      pretrial conference for October 25, 2005. At the October 25th conference, the

      trial court set the trial for January 30, 2006. The parties apparently also

      discussed Blanton’s Criminal Rule 4(C) concerns at the October conference,

      although we were not provided with a transcript of that conference. 2


[6]   On December 6, 2005, the trial court set a hearing for January 20, 2006,

      regarding Blanton’s motion for discharge. However, Blanton did not file a

      motion for discharge until January 20, 2006. The parties indicated that further

      research was needed on the Criminal Rule 4(C) issue, and the trial date was

      reset for February 21, 2006, by the agreement of the parties. On February 14,

      2006, the trial court denied Blanton’s motion for discharge, and the trial was

      held as scheduled on February 21, 2006.


[7]   The jury found Blanton guilty as charged, and the trial court sentenced him to

      an aggregate sentence of 105 years with thirty years suspended. On direct

      appeal, Blanton’s appellate counsel raised two issues, the sufficiency of the

      evidence and the propriety of his sentence. We affirmed his convictions but

      reduced his sentence to an aggregate sentence of thirty years in the Department

      of Correction.


[8]   Blanton filed a petition for post-conviction relief in 2009, and the petition was

      later amended twice. Blanton argued that the trial court erred by denying his




      2
       Blanton asserts that “an agreement was made to preserve Blanton’s right to seek discharge” at the October
      conference. Appellant’s Br. p. 18. However, we were provided with no record to support this assertion.

      Court of Appeals of Indiana | Memorandum Decision 53A04-1410-PC-509 | July 27, 2015            Page 5 of 17
      motion for discharge, that he received ineffective assistance of trial counsel, and

      that he received ineffective assistance of appellate counsel. After a hearing, the

      post-conviction court denied his petition. Blanton filed a motion to correct

      error, which the post-conviction court granted in part regarding its time

      calculation for the Criminal Rule 4(C) issue. However, even with the

      correction, the post-conviction court still determined that no Criminal Rule

      4(C) violation occurred. Blanton now appeals.


                                                   Analysis
[9]   Blanton argues that the post-conviction court’s denial of his petition is clearly

      erroneous. A court that hears a post-conviction claim must make findings of

      fact and conclusions of law on all issues presented in the petition. Pruitt v. State,

      903 N.E.2d 899, 905 (Ind. 2009) (citing Ind. Post-conviction Rule 1(6)). “The

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

      the law.” Id. Our review on appeal is limited to these findings and conclusions.

      Id. Because the petitioner bears the burden of proof in the post-conviction

      court, an unsuccessful petitioner appeals from a negative judgment. Id. (citing

      P-C.R. 1(5)). “A petitioner appealing from a negative judgment must show that

      the evidence as a whole ‘leads unerringly and unmistakably to a conclusion

      opposite to that reached by the trial court.’” Id. (quoting Allen v. State, 749

      N.E.2d 1158, 1164 (Ind. 2001), cert. denied). Under this standard of review,

      “[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.” Id.

      Court of Appeals of Indiana | Memorandum Decision 53A04-1410-PC-509 | July 27, 2015   Page 6 of 17
                                            I. Freestanding Claim

[10]   Blanton first argues that the post-conviction court erred by denying his claim

       that the trial court should have granted his motion for discharge under Indiana

       Criminal Rule 4(C). The Indiana Supreme Court has repeatedly emphasized

       that in “post-conviction proceedings, complaints that something went awry at

       trial are generally cognizable only when they show deprivation of the right to

       effective counsel or issues demonstrably unavailable at the time of trial or direct

       appeal.” Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002); see also Canaan v.

       State, 683 N.E.2d 227, 235-236 n.6 (Ind. 1997) (holding that the availability of

       the fundamental error exception as an exception to the waiver rule in post-

       conviction proceedings is generally limited to “deprivation of the Sixth

       Amendment right to effective assistance of counsel, or . . . an issue

       demonstrably unavailable to the petitioner at the time of his trial and direct

       appeal”), cert. denied. Whether the trial court properly denied Blanton’s

       motion for discharge was an issue that was available at the time of his direct

       appeal. We disagree with Blanton’s unsupported assertion that Criminal Rule

       4(C) issues may be presented as freestanding claims. Consequently, this

       freestanding claim was unavailable to Blanton in his post-conviction

       proceedings.


                               II. Ineffective Assistance of Trial Counsel

[11]   Blanton next argues that his trial counsel was ineffective. To prevail on a claim

       of ineffective assistance of counsel, a petitioner must demonstrate both that his

       or her counsel’s performance was deficient and that the petitioner was

       Court of Appeals of Indiana | Memorandum Decision 53A04-1410-PC-509 | July 27, 2015   Page 7 of 17
       prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102,

       106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

       2052, 2064 (1984)), cert. denied. A counsel’s performance is deficient if it falls

       below an objective standard of reasonableness based on prevailing professional

       norms. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). To meet the

       appropriate test for prejudice, the petitioner must show that there is a

       reasonable probability that, but for counsel’s unprofessional errors, the result of

       the proceeding would have been different. Id. “A reasonable probability is a

       probability sufficient to undermine confidence in the outcome.” Strickland, 466

       U.S. at 694, 104 S. Ct. at 2068. Failure to satisfy either prong will cause the

       claim to fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). Most

       ineffective assistance of counsel claims can be resolved by a prejudice inquiry

       alone. Id.


                                           A. Criminal Rule 4(C)

[12]   Blanton argues that his trial counsel was ineffective for failing to address

       Criminal Rule 4(C) adequately. Although Blanton’s counsel filed a motion for

       discharge pursuant to Criminal Rule 4(C), Blanton argues that his trial counsel

       was ineffective because he “apparently did not object to the trial setting or

       otherwise renew the motion for discharge at the beginning of the trial. Nor did

       he seek leave for an interlocutory appeal . . . .” Appellant’s Br. p. 30. The post-

       conviction court rejected Blanton’s claim.


[13]   Blanton’s trial counsel filed a motion for discharge pursuant to Criminal Rule

       4(C), which provides:
       Court of Appeals of Indiana | Memorandum Decision 53A04-1410-PC-509 | July 27, 2015   Page 8 of 17
               No person shall be held on recognizance or otherwise to answer a
               criminal charge for a period in aggregate embracing more than one
               year from the date the criminal charge against such defendant is filed,
               or from the date of his arrest on such charge, whichever is later; except
               where a continuance was had on his motion, or the delay was caused
               by his act, or where there was not sufficient time to try him during
               such period because of congestion of the court calendar; provided,
               however, that in the last-mentioned circumstance, the prosecuting
               attorney shall file a timely motion for continuance as under
               subdivision (A) of this rule. Provided further, that a trial court may
               take note of congestion or an emergency without the necessity of a
               motion, and upon so finding may order a continuance. Any
               continuance granted due to a congested calendar or emergency shall be
               reduced to an order, which order shall also set the case for trial within
               a reasonable time. Any defendant so held shall, on motion, be
               discharged.
[14]   Criminal Rule 4(C) was enacted “to provide functionality to a criminal

       defendant’s fundamental and constitutionally protected right to a speedy trial.”

       Logan v. State, 16 N.E.3d 953, 959 (Ind. 2014). The rule “places an affirmative

       duty on the State to bring the defendant to trial, but at the same time is not

       intended to be a mechanism for providing defendants a technical means to

       escape prosecution.” Id.


[15]   The State’s duty to try the defendant within one year is an affirmative duty and

       the defendant is under no obligation to remind the State of its duty. Marshall v.

       State, 759 N.E.2d 665, 668 (Ind. Ct. App. 2001). However, when a trial date is

       set beyond the one-year limit provided under Criminal Rule 4(C), the defendant

       must file a timely objection to the trial date or waive his right to a speedy trial.

       Id. Moreover, “[i]f a delay is caused by the defendant’s own motion or action,

       the one-year time limit is extended accordingly.” Cook v. State, 810 N.E.2d

       1064, 1066 (Ind. 2004).
       Court of Appeals of Indiana | Memorandum Decision 53A04-1410-PC-509 | July 27, 2015   Page 9 of 17
[16]   When Blanton was arrested on April 26, 2004, the Criminal Rule 4(C) period

       was triggered. See Isaacs v. State, 673 N.E.2d 757, 762 (Ind. 1996) (holding that

       the one-year period of Criminal Rule 4(C) commences with the date of arrest or

       filing of charges, whichever is later). Consequently, the State was required to

       bring Blanton to trial by April 26, 2005, unless the time was extended by court

       congestion or a continuance or delay caused by Blanton.


[17]   Blanton filed a motion to continue the June 25, 2004 pretrial conference, and it

       was rescheduled for July 29, 2004, resulting in a delay of 34 days attributable to

       Blanton. Due to court congestion, the March 2, 2005 trial date was reset for

       July 28, 2005, resulting in a delay of 148 days due to court congestion.


[18]   Blanton then filed a motion to continue the July 28, 2005 trial date, and it

       ultimately was rescheduled for January 30, 2006. Blanton argues, however,

       that this delay was not attributable to him because it was caused by discovery

       violations by the State. In support of his argument, Blanton relies in part on

       Biggs v. State, 546 N.E.2d 1271 (Ind. Ct. App. 1989). In Biggs, the defendant

       filed a motion to preclude the testimony of a confidential informant who failed

       to appear for depositions or, alternatively, to delay the trial until the State

       complied with discovery requests. We held:

               To put the defendants in a position whereby they must either go to
               trial unprepared due to the State’s failure to respond to discovery
               requests or be prepared to waive their rights to a speedy trial, is to put
               the defendants in an untenable situation. Therefore, we will not charge
               the defendants with any delay that may appear to have resulted from
               the July 18, 1989, motion for a continuance.
       Biggs, 546 N.E.2d at 1275.
       Court of Appeals of Indiana | Memorandum Decision 53A04-1410-PC-509 | July 27, 2015   Page 10 of 17
[19]   Here, however, the only information that we were provided with regarding the

       July 21, 2005 continuance request is from Blanton’s motion to continue and the

       CCS. The motion to continue provided: “The State wishes to add witnesses

       and one at least may be an ‘expert’. Counsel would need additional

       preparation time once the witness or witnesses are named.” App. p. 575. The

       motion also stated: “The State and Defense consulted and agreed to request this

       continuance.” Id. The CCS merely includes a notation that Blanton had filed a

       motion to continue, which the trial court granted. The record provided to us

       includes no information regarding alleged “discovery violations” by the State.

       Given this record, we cannot conclude that Biggs is controlling here. Blanton

       had the burden of demonstrating his claims, but we have no evidence that

       Blanton was placed in an “untenable situation” similar to the defendant in

       Biggs. Rather, given Blanton’s motion to continue and agreement to the

       continuance, the delay caused by the motion to continue is properly attributable

       to Blanton.


[20]   Blanton filed a motion for discharge on January 20, 2006. The 176 days

       between July 28, 2005 (the vacated trial date) and January 20, 2006 (filing of

       the motion for discharge) are attributable to Blanton. Consequently, at the time

       Blanton filed his motion for discharge, 358 days of delays and court congestion

       extended the one-year deadline to bring Blanton to trial. The Criminal Rule

       4(C) deadline had not expired when Blanton filed his motion for discharge. In

       fact, even if all of the days between January 20, 2006, and the February 21,




       Court of Appeals of Indiana | Memorandum Decision 53A04-1410-PC-509 | July 27, 2015   Page 11 of 17
       2006 trial counted toward the Criminal Rule 4(C) deadline, the deadline also

       had not expired when Blanton was brought to trial.


[21]   Blanton has failed to show that his trial counsel was deficient or that his trial

       counsel’s alleged deficiency prejudiced him. Even if his trial counsel had

       pursued the motion for discharge further, he would have been unsuccessful

       because the Criminal Rule 4(C) deadline had not expired at the time of

       Blanton’s trial. The post-conviction court properly denied Blanton’s petition on

       this issue.


                                    B. Failure to Investigate Witnesses

[22]   Blanton also argues that his trial counsel was ineffective for failing to investigate

       three exculpatory witnesses, Dr. Michael Kane, Tess Hazel, and Chris Blanton.

       “When deciding a claim of ineffective assistance of counsel for failure to

       investigate, we apply a great deal of deference to counsel’s judgments.” Parish

       v. State, 838 N.E.2d 495, 500 (Ind. Ct. App. 2005).


[23]   All three proposed witnesses testified at the post-conviction hearing. Dr. Kane

       testified that he had treated Blanton and prescribed psychiatric medications for

       him during the relevant time period, that thirty to forty percent of patients

       taking the medications reported sexual dysfunction, that the side effects would

       be heightened by alcohol consumption, and that Blanton had not reported any

       sexual dysfunction.


[24]   At the trial, T.D. testified that Blanton molested him after spending evenings at

       the Eagle’s Club. Hazel testified that she was an officer of the Eagle’s Club and

       Court of Appeals of Indiana | Memorandum Decision 53A04-1410-PC-509 | July 27, 2015   Page 12 of 17
       that she had no record of Blanton attending the Eagle’s Club during November

       and December of 2001. However, as a result of a 2010 burglary, many of the

       records were inaccessible.


[25]   Chris Blanton testified that Blanton is his father, that he would have been living

       in the house and present during T.D.’s visitations, and that his bedroom was

       directly below T.D.’s bedroom. Chris claimed that the floors were very thin

       and that he did not hear any unusual activity in T.D.’s room.


[26]   Although Blanton claims that the three witness provided exculpatory evidence

       that rebutted key claims by T.D., we disagree. We cannot conclude that

       Blanton has established a reasonable probability that, but for trial counsel’s

       error in failing to investigate these witnesses, the result of the proceeding would

       have been different. Dr. Kane merely testified that sexual dysfunction was a

       possibility in a minority of patients given the medications he prescribed to

       Blanton. There is no evidence that Blanton actually experienced sexual

       dysfunction as a result of the medications. Given the 2010 burglary, Hazel was

       unable to say definitively that Blanton did not enter the Eagle’s Club during the

       period in question. Moreover, even if she was able to say that Blanton was not

       present at the club during the fall of 2001, the evidence would not have

       established that Blanton did not molest T.D. Even if eleven-year-old T.D. was

       mistaken about Blanton’s location prior to the molestations, we cannot say that

       the result of the proceeding would have been different. Finally, Chris’s

       testimony merely established that he did not hear any unusual activity coming

       from T.D.’s bedroom during the time period in question. That alone does not

       Court of Appeals of Indiana | Memorandum Decision 53A04-1410-PC-509 | July 27, 2015   Page 13 of 17
       establish a reasonable probability that, but for trial counsel’s failure to

       investigate, the result of the proceeding would have been different. Blanton

       failed to demonstrate ineffective assistance of trial counsel regarding failure to

       investigate witnesses.


                            III. Ineffective Assistance of Appellate Counsel

[27]   Next, Blanton argues that his appellate counsel was ineffective. Specifically,

       Blanton argues that his appellate counsel should have raised the denial of his

       Criminal Rule 4(C) motion and ineffective assistance of trial counsel regarding

       the Criminal Rule 4(C) issue on direct appeal. The post-conviction court

       denied Blanton’s petition on this issue.


[28]   Ineffective assistance of appellate counsel claims generally fall into three basic

       categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure

       to present issues well. Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006).

       Blanton argues that his appellate counsel failed to raise certain issues on appeal,

       resulting in waiver. 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. Id. “To evaluate the performance prong when

       counsel waived issues upon appeal, we apply the following test: (1) whether the

       unraised issues are significant and obvious from the face of the record and (2)

       whether the unraised issues are ‘clearly stronger’ than the raised issues.” Id.

       (quoting Timberlake v. State, 753 N.E.2d 591, 605-06 (Ind. 2001), cert. denied).

       “If the analysis under this test demonstrates deficient performance, then we
       Court of Appeals of Indiana | Memorandum Decision 53A04-1410-PC-509 | July 27, 2015   Page 14 of 17
       examine whether, ‘the issues which . . . appellate counsel failed to raise, would

       have been clearly more likely to result in reversal or an order for a new trial.’”

       Id. (quoting Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997), cert. denied).

       Further, we must consider the totality of an attorney’s performance to

       determine whether the client received constitutionally adequate assistance. Id.

       at 1195-96. Ineffective assistance is very rarely found in cases where a

       defendant asserts that appellate counsel failed to raise an issue on direct appeal.

       Id. at 1196. One reason for this is that the decision of what issues to raise is one

       of the most important strategic decisions to be made by appellate counsel. Id.


                         A. Motion for Discharge under Criminal Rule 4(C)

[29]   Regarding Blanton’s Criminal Rule 4(C) claim, we have found that Blanton

       was not entitled to discharge. Consequently, Blanton cannot show that he was

       prejudiced by his appellate counsel’s failure to raise the denial of his motion for

       discharge on direct appeal. Even if his appellate counsel had raised the issue on

       direct appeal, Blanton would not have been successful, and he cannot show

       prejudice from his appellate counsel’s failure to raise the issue.


                               B. Ineffective Assistance of Trial Counsel

[30]   Blanton argues that his appellate counsel should have raised ineffective

       assistance of trial counsel on direct appeal regarding the Criminal Rule 4(C)

       issue and trial counsel’s failure to investigate the three additional witnesses. A

       post-conviction hearing, not a direct appeal, is normally the preferred forum to

       adjudicate an ineffectiveness claim. Woods v. State, 701 N.E.2d 1208, 1219 (Ind.


       Court of Appeals of Indiana | Memorandum Decision 53A04-1410-PC-509 | July 27, 2015   Page 15 of 17
       1998), cert. denied. “When the claim of ineffective assistance is directed at

       appellate counsel for failing fully and properly to raise and support a claim of

       ineffective assistance of trial counsel, a defendant faces a compound burden on

       post-conviction.” Ben-Yisrayl v. State, 738 N.E.2d 253, 261-62 (Ind. 2000), cert.

       denied. “If the claim relates to issue selection, defense counsel on post-

       conviction must demonstrate that appellate counsel’s performance was deficient

       and that, but for the deficiency of appellate counsel, trial counsel’s performance

       would have been found deficient and prejudicial.” Id. at 262. “Thus, the

       defendant’s burden before the post-conviction court was to establish the two

       elements of ineffective assistance of counsel separately as to both trial and

       appellate counsel.” Id.


[31]   We have already determined that Blanton failed to demonstrate ineffective

       assistance of trial counsel regarding both of these claims. Consequently, even if

       appellate counsel had raised ineffective assistance of trial counsel on direct

       appeal, he would not have been able to demonstrate that trial counsel’s

       performance was deficient and prejudicial.


[32]   Moreover, regarding investigating the three witnesses, we note that:

               [E]xpecting appellate lawyers to look outside the record for error is
               unreasonable in light of the realities of appellate practice. Direct appeal
               counsel should not be forced to become a second trial counsel.
               Appellate lawyers may have neither the skills nor the resources nor the
               time to investigate extra-record claims, much less to present them
               coherently and persuasively to the trial court.
[33]   Id. at 260 (quoting Woods, 701 N.E.2d at 1216). “To prevail on a claim of

       ineffective assistance of appellate counsel, a defendant must therefore show
       Court of Appeals of Indiana | Memorandum Decision 53A04-1410-PC-509 | July 27, 2015   Page 16 of 17
       from the information available in the trial record or otherwise known to

       appellate counsel that appellate counsel failed to present a significant and

       obvious issue and that this failure cannot be explained by any reasonable

       strategy.” Id. at 261.


[34]   Blanton has failed to demonstrate that the information regarding the three

       witnesses at issue was available in the trial record or otherwise known to his

       appellate counsel. This claim fails.


                                                 Conclusion
[35]   The post-conviction court properly denied Blanton’s petition for post-conviction

       relief. We affirm.


[36]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A04-1410-PC-509 | July 27, 2015   Page 17 of 17
