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                                        Mar 11 2014, 10:13 am

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



APPELLANT PRO SE:                                          ATTORNEYS FOR APPELLEE:

DENNIS J. TURNER                                           GREGORY F. ZOELLER
Bunker Hill, Indiana                                       Attorney General of Indiana

                                                           MICHAEL GENE WORDEN
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

DENNIS J. TURNER,                                   )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )   No. 06A01-1308-PC-347
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )


                      APPEAL FROM THE BOONE SUPERIOR COURT
                         The Honorable Matthew C. Kincaid, Judge
                              Cause No. 06D01-1111-PC-406


                                          March 11, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                         Case Summary

          Pro-se Petitioner Dennis J. Turner (“Turner”) appeals the denial of his petition for

post-conviction relief, which challenged his conviction for Burglary, as a Class B felony.1

We affirm.

                                              Issues

          Turner presents two issues for review:

          I.      Whether the post-conviction court properly granted summary judgment
                  to the State as opposed to Turner on claims allegedly barred by res
                  judicata; and

          II.     Whether the post-conviction court erroneously denied relief upon the
                  claim of ineffective assistance of appellate counsel.

                                 Facts and Procedural History

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

          Douglas Thompson and his wife, Bonnie, were friends of Turner’s. In fact,
          Turner occasionally lived with the Thompsons and kept his belongings at their
          home. On September 3, 2008, Turner and Thompson were driving in
          Indianapolis looking for houses to burglarize. They stopped near Daugherty
          Drive and Turner got out of the car. They agreed that Turner would contact
          Thompson by cell phone when he was ready to be picked up.

          A short time later, Turner forced open the door to the sun porch of the home of
          Kent and Kelly McCarthy on Daugherty Drive, smashed a large interior glass
          door, and entered the home. Turner removed items from the home including
          sapphire and diamond earrings, gold earrings, a wood-cross necklace with a
          heart-shaped ivory inlay, two laptops, several computer-related devices, and an
          expensive Kensington brand computer bag. Turner left the home with these
          items and, while walking through an adjacent wooded area, called Thompson
          and asked to be picked up. The two maintained cell-phone contact until they
          met near South Michigan Road/Highway 421, where Turner got into
          Thompson’s car and they returned to the Thompsons’ home. Once there, they

1
    Ind. Code § 35-43-2-1.

                                                2
           looked over the items taken from the McCarthys’ home. Thompson and
           Turner later traded one of the stolen computers for drugs.

           Meanwhile, at about 2:15 p.m. that day, the McCarthys arrived home and
           discovered their home had been burglarized. Kent McCarthy notified
           authorities. Kent McCarthy noted that the back-yard gate to his yard was open.
           He told investigators of this and informed them that they never left the gate
           open. Investigators walked through the woods behind the McCarthys’
           property, following a path of disturbed vegetation through the woods, over a
           creek, and exiting approximately where Thompson later claimed he had picked
           up Turner.

           Turner became a person of interest in the McCarthy burglary in November
           2008. When the investigators learned of Turner’s friendship with the
           Thompsons, they checked the Thompsons’ pawn history and learned that at
           about 2:15 p.m. on September 4, 2008, Bonnie Thompson pawned jewelry at
           an Indianapolis pawn shop that included sapphire and diamond earrings, gold
           earrings, and a wood cross necklace with an ivory-heart detail. Officials
           procured a search warrant for the Thompson home on November 13, 2008.2
           Before serving the warrant, however, an investigator telephoned Thompson’s
           wife so that she could let them in and avoid damage to her home.
           Coincidentally, Turner was in the same car when the investigator telephoned
           Thompson’s wife. He asked to be let out of the car before the Thompsons
           returned home. Law enforcement officers served the warrant and discovered
           items that had been taken from the McCarthys’ home, including a Kensington
           computer bag and several computer-related devices. The McCarthys later
           identified these items as the ones taken from their home. On December 1,
           2008, Thompson gave a statement to the authorities implicating himself and
           Turner in the burglary.

           The State charged Turner with burglary as a class B felony. A jury trial was
           held on May 27, 2010, at which Turner represented himself. The jury found
           Turner guilty as charged. He was sentenced to nineteen years in prison.

Turner v. State, No. 06A05-1006-CR-427, slip op. at 1-4 (Ind. Ct. App. January 28, 2011),

trans. denied. Turner appealed his conviction and sentence, claiming that the evidence was

insufficient to support his conviction and that his nineteen year sentence was inappropriate.

Id. at 1. His conviction and sentence were affirmed. Id.

2
    Turner was also living there at the time.

                                                 3
       On November 1, 2011, Turner filed a pro-se petition for post-conviction relief. On

December 21, 2011, he filed an amended petition for post-conviction relief, claiming that the

evidence was insufficient to support his conviction, he was improperly sentenced because an

inappropriate aggravator had been considered by the trial court, and he had received

ineffective assistance of appellate counsel.

       On May 17, 2012, Turner filed a motion for summary judgment on each of his claims.

He attached thirteen affidavits he had executed. Therein, he attacked individual evidentiary

submissions at his trial, claiming that testimony was ambiguous, incomplete, inconsistent, or

perjured. The State filed a cross-motion for summary judgment on the sufficiency of the

evidence and sentencing claims, contending that these claims were barred by res judicata.

After conducting a hearing, the post-conviction court granted the requested summary

judgment to the State. The claim of ineffectiveness of appellate counsel was set for a

hearing.

       On April 22, 2013, the post-conviction court conducted an evidentiary hearing at

which the court took judicial notice of the decision in Turner’s direct appeal. Neither Turner

nor the State submitted testimony or evidentiary exhibits. On July 23, 2013, the post-

conviction court denied Turner relief. Turner now appeals.

                                 Discussion and Decision

                                    Standard of Review

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

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


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

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

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

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

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

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

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

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

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

evidence and the credibility of witnesses. Id.

                                    I. Summary Judgment

       Post-Conviction Rule 1(4)(g) grants the court discretion to consider all pleadings,

dispositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits in

determining whether a motion for summary judgment has merit.

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

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

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

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

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

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

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


                                               5
of material fact and that he is entitled to judgment as a matter of law and the burden then

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

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

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

court and the party appealing the grant of summary judgment must show the appellate court

that the trial court erred. Id.

       The State moved for summary judgment as to two of Turner’s claims, sufficiency of

the evidence and sentencing, claiming that those issues were res judicata. We agree. Post-

conviction procedures do not afford petitioners with a “super-appeal”; rather, the post-

conviction rules contemplate a narrow remedy for subsequent collateral challenges to

convictions. Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006). The purpose of a petition for

post-conviction relief is to provide petitioners the opportunity to raise issues not known or

available at the time of the original trial or direct appeal. Stephenson v. State, 864 N.E.2d

1022, 1028 (Ind. 2007). If an issue was known and available but not raised on direct appeal,

the issue is procedurally foreclosed. Id. If an issue was raised and decided on direct appeal,

it is res judicata. Id. Moreover, collateral challenges to convictions must be based upon

grounds enumerated in the post-conviction rule. Shanabarger v. State, 846 N.E.2d 702, 707

(Ind. Ct. App. 2006), trans. denied; see also Post-Conviction Rule 1(1). As Turner’s

sufficiency of the evidence and sentencing challenges were available to him and raised on

direct appeal, they are res judicata. The State was entitled to summary judgment as to these

claims.


                                              6
                                 II. Effectiveness of Counsel

        Turner contends he was denied the effective assistance of appellate counsel.

Effectiveness of counsel is a mixed question of law and fact. Strickland v. Washington, 466

U.S. 668, 698 (1984). We evaluate Sixth Amendment claims of ineffective assistance under

the two-part test announced in Strickland. Id. To prevail on an ineffective assistance of

counsel claim, a defendant must demonstrate both deficient performance and resulting

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

687).    Deficient performance is that which falls below an objective standard of

reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d 1153,

1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that “there is a reasonable

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

have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d

687, 692 (Ind. 1996). The two prongs of the Strickland test are separate and independent

inquiries. Strickland, 466 U.S. at 697. Thus, “[i]f it is easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice . . . that course should be followed.” Id.

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

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

389, 392 (Ind. 2002). A defendant is entitled to the effective assistance of appellate counsel.

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

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


                                               7
ineffective assistance claims. Bieghler v. State, 690 N.E.2d 188, 192 (Ind. 1997). There are

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

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

category is implicated.

       At the post-conviction hearing, Turner described his complaint with appellate

counsel’s performance: “in the issues there was no claim of any violation of state or federal

law.” (P.C.R. Tr. 1.) In his appellate brief, Turner describes his alleged omitted claim as a

“Jackson claim.” Appellant’s Br. At 14. This is an apparent reference to a case he cites in

his brief for the proposition that there must be more than a modicum of evidence to support a

conviction, specifically, Jackson v. Virginia, 443 U.S. 307 (U.S. 1979). Apparently, Turner

believes that this Court would have undertaken a more stringent review of his claim of

insufficient evidence had counsel cited federal case-law.

       Appellate counsel challenged the sufficiency of the evidence; the reviewing court

examined the evidence and found it sufficient. Indeed, a criminal conviction absent proof

beyond a reasonable doubt on each element of the charged crime amounts to fundamental

error. See In re Winship, 397 U.S. 358, 361 (1970) (requiring that the State must prove every

element of the crime charged beyond a reasonable doubt). This Court would have been

obliged to reverse Turner’s conviction had this burden of proof not been met, regardless of

appellate counsel’s citation to authority.

       Turner’s brief fails to provide cogent argument with citation to relevant authority to

demonstrate a reasonable probability that the outcome of his direct appeal would have been


                                             8
different had the Jackson decision been cited by appellate counsel. Turner has not shown

that his appellate counsel overlooked a significant and obvious issue for appeal or failed to

present an issue well.

                                        Conclusion

       The State, and not Turner, was entitled to summary judgment as to issues that had

been determined adversely to Turner on direct appeal. Turner has not overcome the

presumption that he received the effective assistance of appellate counsel. Accordingly, the

post-conviction court properly denied Turner’s petition for post-conviction relief.

       Affirmed.

FRIEDLANDER, J., and KIRSCH, J., concur.




                                             9
