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.


APPELLANT PRO SE:                               ATTORNEYS FOR APPELLEE:

GLENDAL RHOTON                                  GREGORY F. ZOELLER
Carlisle, Indiana                               Attorney General of Indiana

                                                BRIAN REITZ
                                                Deputy Attorney General
                                                Indianapolis, Indiana

                                                                          Oct 08 2014, 8:47 am

                              IN THE
                    COURT OF APPEALS OF INDIANA

GLENDAL RHOTON,                                 )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 49A05-1311-PC-563
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Grant W. Hawkins, Judge
                          Cause No. 49G05-0809-PC-204910



                                      October 8, 2014


             MEMORANDUM DECISION - NOT FOR PUBLICATION


ROBB, Judge
                                 Case Summary and Issues

       Glendal Rhoton, pro se, appeals the post-conviction court’s denial of his petition

for post-conviction relief, raising the following issues for review: (1) whether Rhoton

was denied the right to a fair post-conviction hearing; (2) whether Rhoton received

ineffective assistance of trial counsel; and (3) whether Rhoton received ineffective

assistance of appellate counsel. Concluding Rhoton’s post-conviction proceedings were

not fundamentally unfair and that the post-conviction court did not err in denying

Rhoton’s petition, we affirm.

                                Facts and Procedural History

       Many of the facts relevant to Rhoton’s underlying convictions were previously set

out by this court on direct appeal:

              Late in the evening of September 2, 2008, Kimberly Philpot drove
       Rhoton, her ex-husband, to the Road Dog Saloon in Indianapolis. Rhoton
       told her to leave, so she drove to a nearby strip mall to wait. The saloon was
       closed, but Rhoton walked to the back of the building with a pickax and
       flathead screwdriver. When Philpot returned about ten minutes later,
       Rhoton threw the pickax in the back of the truck and screwdriver in the cab
       and said, “I smashed the dicksucker’s brains in.”

               At Rhoton’s request, Philpot left again and then returned fifteen
       minutes later. She saw Rhoton in a shed behind the saloon, left again, and
       returned a few minutes later to find Rhoton waiting for her by the street. He
       instructed her to pull around back. There Rhoton and Philpot loaded two
       barrels full of frozen meat and other food into the back of the truck. As they
       left the saloon, Rhoton told Philpot that he needed to get rid of the pickax.
       Philpot drove back to the strip mall, where Rhoton placed the pickax next
       to a green recycling bin.

              Shortly before eleven o’clock on the evening of September 2, 2008,
       Officer Frank Vanek of the Indianapolis Metropolitan Police Department
       (“IMPD”) was dispatched to investigate an alarm at the Road Dog Saloon
       on the southeast side of Indianapolis. When Officer Vanek arrived, he

                                             2
found that the doors to the saloon were secure. However, in the rear of the
building, he found Martin Wilburn wrapped in a blanket and lying
facedown on a row of chairs that had been pushed together. Wilburn had
suffered several severe injuries to his head and was bleeding profusely. The
officers called for medics, who arrived within ten minutes and transported
Wilburn to the hospital. Officers on the scene discovered that the shed in
back of the saloon was not secure and that frozen food was missing from
the shed’s freezer.

        Wilburn died a short time later as a result of his injuries. He had
suffered three large lacerations around and below his left ear. Each
laceration was approximately one and one-half inches long, and the one
below the left earlobe penetrated “approximately one inch into the tissues
of the lower portion of the skull.” In one of the skull fractures Wilburn had
sustained, “a piece of bone was literally pushed in causing a punched out
effect[,]” and his brain was lacerated.

        At the same time that evening, IMPD Officer Craig Wildauer was
assisting another officer with an arrest for possession of marijuana on the
east side of Indianapolis. When the arrestee’s cell phone rang, Officer
Wildauer answered and pretended to be the arrestee. In a very brief
conversation, the caller, a male, asked to meet. Subsequently a female
called the arrestee’s cell phone, and then a male got on the phone. Officer
Wildauer agreed to meet the caller at the intersection of East Washington
Street and Sherman. Shortly after Officer Wildauer drove to that
intersection, he saw a pickup truck pull in to a parking lot on the southwest
corner without using a turn signal, and the truck’s driver was not wearing a
seatbelt. Officer Wildauer initiated a traffic stop of the truck.

        In the traffic stop, the officer learned that Kimberly Philpot was the
driver, and Rhoton was her passenger. Philpot and Rhoton appeared
nervous. Officer Wildauer noticed that the bed of the truck contained large
barrels filled with frozen meat and frozen breaded mushrooms. Officer
Brady Ball arrived as backup. Officer Wildauer had Rhoton wait on the
truck’s open tailgate while he took Philpot to the front of the truck. Once at
the front of the truck, Philpot told the officer that she thought someone at
the Road Dog Saloon needed help. When the officers inquired through
IMPD about a problem at the Road Dog Saloon, they learned of the break-
in and Wilburn’s injuries. Philpot then told Officer Ball that Rhoton had
left a pickax by the recycling bin behind a strip mall. Later testing disclosed
the presence of Wilburn’s blood and DNA on the pickax.



                                      3
Rhoton v. State, 938 N.E.2d 1240, 1242-43 (Ind. Ct. App. 2010) (citations omitted),

trans. denied. Rhoton was charged with murder, a felony, and burglary, a Class A felony.

The State subsequently charged Rhoton as an habitual offender. A jury found Rhoton

guilty of both counts, and he admitted to being an habitual offender.          Rhoton was

sentenced to eighty-one years imprisonment.

       On June 29, 2011, Rhoton, pro se, filed his petition for post-conviction relief,

alleging ineffective assistance of trial counsel and appellate counsel. On July 25, 2012,

an evidentiary hearing was held, at which Dominic Martin, Rhoton’s trial attorney, and

Dara Goodrich, an investigative paralegal with the public defender agency, gave

testimony. Subpoenas were issued for additional witnesses—Barbara Sherman, Dave

Ezelle, Kelly Voils, and Jennifer Hix—who did not appear at the hearing. On October

23, 2013, the post-conviction court denied Rhoton’s petition for relief. This appeal

followed. Additional facts will be provided as necessary.

                                 Discussion and Decision

                                  I. Standard of Review

       A petitioner seeking post-conviction relief bears the burden of establishing

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

A petitioner who is denied post-conviction relief appeals from a negative judgment,

which may be reversed only if “the evidence as a whole leads unerringly and

unmistakably to a decision opposite that reached by the post-conviction court.” Stevens

v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied, 540 U.S. 830 (2003). We defer to

the post-conviction court’s factual findings, unless they are clearly erroneous. Id. at 746.

                                             4
                                 II. Rhoton’s Post-Conviction Hearing

         Rhoton argues he has been denied due process and the right to a fair post-

conviction hearing. His contentions on this point are twofold. First, he asserts that

Indiana’s entire post-conviction relief system is fundamentally unfair to pro se litigants

and denies them due process. Second, Rhoton claims the post-conviction court was

biased and adversarial, precluding the possibility of a fair hearing.                             We find these

arguments unavailing.

         In Indiana, pro se litigants are held to the same standards as licensed attorneys and

are required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct.

App. 2004), trans. denied. At bottom, Rhoton claims that our procedural and evidentiary

rules are too complicated and that enforcing those requirements against pro se litigants

results in a denial of due process of law.1 This argument effectively asks us to make one

of two conclusions: (1) there is a constitutional right to counsel in post-conviction relief

proceedings, or (2) pro se litigants are not required to adhere to our system’s procedural

and evidentiary rules. We decline to hold in either respect.

         Importantly, our supreme court has recognized that “there is no constitutional right

to counsel in post-conviction, or collateral review, proceedings under either the federal or

the state constitution.” Hill v. State, 960 N.E.2d 141, 145 (Ind. 2012). Rhoton, however,

refers us to a decision by the United States Supreme Court holding a pro se litigant to

“less stringent standards” when considering a motion to dismiss against a pro se

         1
           The State Public Defender entered an appearance to represent Rhoton but later withdrew as counsel
pursuant to Indiana Post-Conviction Rule 1(9)(c). The post-conviction rules allow the State Public Defender to
withdraw an appearance if it determines “the proceeding is not meritorious or in the interests of justice.” Ind. Post-
Conviction Rule 1(9)(c).

                                                          5
complaint. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). Not only is

this standard unconnected with post-conviction proceedings, but its foundation appears to

be in gratuity rather than in the Due Process Clause.

       There is little doubt that the rules of procedure and evidence are more difficult for

a lay person to navigate than a trained attorney. Nevertheless, we cannot say that our

practice of holding pro se litigants to those standards constitutes a denial of due process.

       Rhoton argues separately that the post-conviction court’s rulings in this case

subjected him to a fundamentally unfair process. He argues “[t]he post-conviction court

denied [him] several witnesses, including Jennifer Hix, Kelly Voils, Dave Ezelle, Barbara

Sherman, and Lackeeta Brown.” Brief of Appellant at 15. This is incorrect, as the trial

court issued subpoenas to Hix, Voils, Ezelle and Sherman, and those individuals simply

failed to appear. Rhoton did not request a continuance and elected to proceed with his

post-conviction hearing without those witnesses present; therefore, any argument

regarding a “denial” of those witnesses has been forfeited. See Shuttleworth v. State, 469

N.E.2d 1210, 1213 (Ind. Ct. App. 1984).

       As to Lackeeta Brown, the trial court denied Rhoton’s request for a subpoena after

concluding Rhoton’s request failed to explain who she was or establish her relevance to

the proceedings. Petitioners proceeding pro se are entitled to request the issuance of a

subpoena by providing an affidavit stating the reason for calling the witness and the

expected testimony.     Indiana Post-Conviction Rule 1(9)(b).       “If the court finds the

witness’ testimony would be relevant and probative, the court shall order that the

subpoena be issued. If the court finds the proposed witness’ testimony is not relevant and

                                              6
probative, it shall enter a finding on the record and refuse to issue the subpoena.” Id.

The decision to grant or deny a request for issuance of a subpoena is within the trial

court’s discretion. Johnson v. State, 832 N.E.2d 985, 994 (Ind. Ct. App. 2005), trans.

denied. We do not believe the post-conviction court’s denial of Rhoton’s request to

subpoena Brown was an abuse of discretion.2

        Rhoton also complains of the post-conviction court’s sustaining of objections by

the State, which precluded Rhoton from obtaining Philpot’s medical records and from

admitting numerous exhibits without any foundation. However, Rhoton has not shown

that any of these adverse rulings were an abuse of the trial court’s discretion. And “an

adverse ruling alone is not sufficient to show bias or prejudice.” Flowers v. State, 738

N.E.2d 1051, 1060 n.4 (Ind. 2000). Rhoton further asserts the post-conviction court

“took an adversarial role” in the proceeding, Br. of Appellant at 16, but the two

exchanges in the transcript identified by Rhoton do not show the post-conviction court to

be prejudiced against Rhoton. In fact, as the State points out, on at least two occasions

the post-conviction court informed Rhoton that he was being given “leeway” due to his

pro se status. Transcript at 57, 67.

        In sum, Rhoton has not shown that his post-conviction proceedings were

fundamentally unfair.




        2
             On appeal, Rhoton attempts to establish Brown’s relevance, claiming she was a witness who could
authenticate phone records showing Rhoton had not made a phone call and spoken to Officer Wildauer on the night
of the murder. The State points out that Rhoton did not attempt to subpoena these alleged phone records, and there
is no clear connection between the phone records and Rhoton’s claims of ineffective assistance.

                                                        7
                                     III. Trial Counsel

       Rhoton argues the post-conviction court erred by denying his claim of ineffective

assistance of trial counsel.    Rhoton alleges numerous instances of ineffectiveness,

including failure to present a defense, call witnesses, impeach a key witness, present

exculpatory evidence, and suppress evidence.

       The Sixth Amendment’s “right to counsel is the right to the effective assistance of

counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v.

Richardson, 397 U.S. 759, 771 n.14 (1970)).            To establish a claim of ineffective

assistance of counsel, a convicted defendant must show (1) that counsel’s performance

was deficient such that it fell below an objective standard of reasonableness based on

prevailing professional norms and (2) the defendant was prejudiced by counsel’s

deficient performance. Id. at 687. When considering whether counsel’s performance

was deficient, the reviewing court begins with a “strong presumption” that counsel’s

performance was reasonable.      Id. at 689.       A defendant is prejudiced if “there is a

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

proceeding would have been different.” Id. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id.

       The two prongs of the Strickland test—performance and prejudice—are

independent inquiries, and both prongs need not be addressed if the defendant makes an

insufficient showing as to one of them. Id. at 697. For instance, “[i]f it is easier to

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



                                               8
course should be followed” without consideration of whether counsel’s performance was

deficient. Id.

                                A. Failure to Present a Defense

       First, Rhoton contends Martin provided ineffective assistance by failing to present

a viable defense at his jury trial. Specifically, Rhoton takes issue with Martin’s decision

to undertake a strategy of holding the State to its burden and to refrain from calling

witnesses. Our supreme court has said that “[t]rial counsel’s strategy to put the State to

its burden and not present a defense, like other strategic decisions, is a legitimate trial

strategy.” Rondon v. State, 711 N.E.2d 506, 520 (Ind. 1999). Because Rhoton did not

prove the existence of another obvious winning strategy, we cannot conclude Martin was

deficient in making this tactical decision.

                                 B. Failure to Impeach Philpot

       Next, Rhoton argues Martin performed deficiently by failing to impeach Philpot,

the State’s star witness. However, as the post-conviction court’s order points out, Martin

did in fact cross-examine Philpot and impeach her in a number of different ways. Lines

of questioning in that cross-examination included Philpot’s drug use (including drug use

on the night of the murder), her failure to call police despite her knowledge of the crime,

the fact that she aided in the robbery, that she touched the murder weapon, and that no

charges were filed against her regarding the incident. In truth, Martin did impeach

Philpot; Rhoton simply argues that Martin should have done it differently or “better.” “It

is well settled that the nature and extent of cross-examination is a matter of strategy



                                              9
delegated to trial counsel.” Waldon v. State, 684 N.E.2d 206, 208 (Ind. Ct. App. 1997),

trans. denied. We find no deficiency in trial counsel’s impeachment of Philpot.

                                C. Philpot’s Medical Records

       Related to his impeachment argument, Rhoton claims Martin was deficient by

failing to investigate Philpot’s claim that she suffered from post-traumatic stress disorder

(“PTSD”) and obtain Philpot’s medical records. We find Rhoton’s claim on this point to

be highly speculative, given that there is no evidence of what Philpot’s medical records

contain. That said, even if Philpot had exaggerated the extent of her PTSD, we can find

no deficient performance where Martin declined to obtain these records and attempt to

impeach with them at trial. Once again, the nature and extent of cross-examination is a

matter of trial strategy within the discretion of trial counsel. Id. Moreover, we note that

Martin explained during the post-conviction hearing that attempting to impeach Philpot

on the PTSD issue would open the door to evidence of Rhoton’s past acts of domestic

violence against Philpot. Such evidence of Rhoton’s violent nature would be devastating

in his murder case, and Martin’s decision not to open the door to that evidence was quite

reasonable.   Therefore, Martin did not perform deficiently by failing to introduce

evidence of Philpot’s medical history.

                                 D. Failure to Call Witnesses

       Rhoton also contends that Martin was ineffective for failing to call Hix, Sherman,

Voils, and Ezelle to testify at trial. However, Rhoton failed to present any cognizable

evidence at the post-conviction hearing regarding what these witnesses would have



                                            10
supposedly testified to at trial. Therefore, Rhoton has failed to carry his burden of

demonstrating deficient performance and prejudice.

        Rhoton argues that he was unable to present evidence of the substance of witness

testimony due to the unfair nature of the post-conviction proceedings. As we discussed

above, Rhoton’s post-conviction proceedings were not fundamentally unfair. The post-

conviction court issued subpoenas to each of the potential witnesses, and those witnesses

failed to appear at the post-conviction hearing. Rhoton did not request a continuance in

order to secure the witnesses’ presence and failed to admit other evidence of the

witnesses’ purported testimony.3

                                      E. Stipulation to DNA Evidence

        Rhoton claims Martin was deficient for stipulating to certain DNA evidence

admitted by the State at trial. Martin stipulated that DNA evidence found on Rhoton’s

clothing was from his own blood. Rhoton argues Martin should not have agreed to this

stipulation because it relieved the State of the burden of calling an expert witness, who

Rhoton alleges would not have testified that the DNA was his.

        Rhoton’s arguments as to the potential testimony of the expert witness are entirely

speculative. Thus, Rhoton has not shown deficient performance. We also note that

Martin testified that such a stipulation can be strategic to the extent that it minimizes the

evidence and prevents the State from parading in impressive experts and DNA evidence

to present to the jury.


        3
             Furthermore, Martin testified at the post-conviction hearing that he and his investigator were aware of
these witnesses and that a decision was made that several of them should not be called to testify due to issues of
credibility or the risk of bringing in evidence damaging to Rhoton’s case.

                                                        11
       Moreover, even if we assumed that an expert would have testified that the blood

on Rhoton’s jeans belonged to someone other than Rhoton, we cannot see how this would

have aided Rhoton or altered the result of the proceeding. Rhoton has not shown that the

stipulation prejudiced him in any way.

                                      F. Phone Records

       Next, Rhoton argues his trial counsel was ineffective for failing to introduce phone

records that Rhoton claims would have proved that Rhoton did not make calls to a drug

dealer’s phone as reported by Officer Wildauer. Rhoton’s claims regarding these alleged

phone records are unsubstantiated. Rhoton did not admit any evidence of such records at

the post-conviction hearing.     As discussed above, the post-conviction court denied

Rhoton’s request to subpoena Brown as a witness because Rhoton failed to establish the

relevance of Brown’s testimony to his claims, and Rhoton did not subpoena any phone

records. Because Rhoton failed to present any evidence on the issue, we cannot conclude

that his trial counsel performed deficiently or that Rhoton was prejudiced.

                               G. Failure to Suppress Evidence

       Last, Rhoton contends he received ineffective assistance of trial counsel because

Martin did not seek to suppress evidence seized from his truck as a result of a traffic stop.

The traffic stop in question was initiated by Officer Wildauer.          While making an

unrelated drug arrest, the arrestee’s phone rang and Officer Wildauer answered it.

Officer Wildauer spoke with a man and woman (ostensibly Rhoton and Philpot) who

wished to meet at a proposed intersection. Officer Wildauer drove to the location and

observed Rhoton commit a traffic violation before pulling into a parking lot at the

                                             12
intersection. Officer Wildauer then conducted a traffic stop, which led to the discovery

of items stolen from the Road Dog Saloon and Philpot’s tip to police that eventually

linked Rhoton to the murder.

       Rhoton rightly recognizes that to prevail on a claim of ineffective assistance of

counsel based on a failure to file a motion to suppress evidence, the petitioner must

demonstrate that such a motion would have been successful. See Moore v. State, 872

N.E.2d 617, 621 (Ind. Ct. App. 2007), trans. denied. Rhoton does not contest that Officer

Wildauer had the requisite reasonable suspicion to justify the traffic stop. See Veerkamp

v. State, 7 N.E.3d 390, 394 (Ind. Ct. App. 2014) (stating that reasonable suspicion

justifies a traffic stop and that the commission of a traffic violation gives rise to

reasonable suspicion). However, Rhoton claims that the stop violated his right to be free

from unreasonable searches and seizures because of “(1) the pretextual nature of the stop,

and (2) the investigative nature of the stop that far exceeds the scope of the traffic

violation.” Br. of Appellant at 32-33.

       Both the United States Supreme Court and the Indiana Supreme Court have

previously said that the pretextual nature of an investigatory stop does not render the stop

unreasonable.    Whren v. United States, 517 U.S. 806, 813 (1996) (holding the

reasonableness of a traffic stop under the Fourth Amendment does not depend on the

actual motivations of the officers involved); Mitchell v. State, 745 N.E.2d 775, 787 (Ind.

2001) (stating under the Indiana Constitution there is “nothing unreasonable in permitting

an officer, who may have knowledge or suspicion of unrelated criminal activity by the



                                            13
motorist, to nevertheless respond to an observed traffic violation.”). Therefore, Rhoton’s

first argument is without merit.

        As to Rhoton’s argument regarding the scope of the traffic stop,

        [i]t is true that an investigatory stop on “less than probable cause” (i.e.
        reasonable suspicion) must be temporary and last no longer than is
        necessary to effectuate the purpose of the stop . . . [and] should be the least
        intrusive means reasonably available to verify or dispel the officer’s
        suspicion in a short period of time. This limitation includes the length of a
        detention and the transfer of a suspect to a different location.

State v. Gilbert, 997 N.E.2d 414, 417-18 (Ind. Ct. App. 2013) (citations and quotation

marks omitted). That said, it does not appear that the scope of this particular traffic stop

was unreasonable. Because of the phone call that led him to Rhoton’s location, Officer

Wildauer already had suspicion that Rhoton may be attempting to purchase or sell drugs.

Further, Officer Wildauer observed that Rhoton and Philpot appeared nervous, and the

officer noticed large containers filled with frozen meat in the bed of Rhoton’s truck.

These facts were sufficient to extend the scope of the traffic stop. And of course, once

Philpot told an officer that someone at the Road Dog Saloon might need help, the stop

could be further extended.      In sum, Rhoton has not demonstrated that a motion to

suppress would have been successful, and thus, his claim of ineffective assistance must

fail.

                                    IV. Appellate Counsel

        Finally, Rhoton asserts that he received ineffective assistance of appellate counsel.

He argues his appellate counsel acted deficiently by “couching an issue of incredible

dubiosity within an argument regarding the sufficiency of the evidence.”                  Br. of


                                              14
Appellant at 36. According to Rhoton, this prevented appellate counsel from adequately

arguing the issues and lessened his chances of reversal by this court.

       The standard of review for assessing claims of ineffective assistance of appellate

counsel is the same as for claims of ineffective assistance of trial counsel: the petitioner

must establish deficient performance and resulting prejudice. Wrinkles v. State, 749

N.E.2d 1179, 1203 (Ind. 2001), cert. denied, 535 U.S. 1019 (2002). There are three basic

categories of alleged appellate counsel ineffectiveness: (1) denying access to an appeal;

(2) failure to raise an issue on appeal; or (3) failure to adequately present an issue despite

raising the issue on appeal. Bieghler v. State, 690 N.E.2d 188, 193-95 (Ind. 1997), cert.

denied, 525 U.S. 1021 (1998). Rhoton’s argument falls under the third category. “[A]n

ineffectiveness challenge resting on counsel’s presentation of a claim must overcome the

strongest presumption of adequate assistance. . . . Relief is only appropriate when the

appellate court is confident it would have ruled differently.” Id. at 196.

       Rhoton’s arguments do not overcome the high bar our standard of review sets

when challenging appellate counsel’s presentation of issues.         Moreover, if appellate

counsel were to separate the incredible dubiosity and sufficiency arguments, as Rhoton

suggests, we do not believe that would have changed this court’s decision in Rhoton’s

direct appeal. Therefore, we hold the post-conviction court properly denied Rhoton’s

claim of ineffective assistance of appellate counsel.




                                             15
                                        Conclusion

       Concluding Rhoton’s post-conviction proceedings were not fundamentally unfair

and that the post-conviction court properly denied Rhoton’s ineffective assistance of

counsel claims, we affirm the denial of post-conviction relief.

       Affirmed.

BAKER, J., and KIRSCH, J., concur.




                                            16
