MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                   May 30 2017, 9:07 am
court except for the purpose of establishing
                                                                                 CLERK
the defense of res judicata, collateral                                      Indiana Supreme Court
                                                                                Court of Appeals
estoppel, or the law of the case.                                                 and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana

Joanna Green                                             James B. Martin
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Ronnie Rice,                                             May 30, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         45A05-1608-PC-1951
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Diane R. Boswell,
Appellee-Respondent                                      Judge
                                                         The Honorable Natalie Bokota,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         45G03-1410-PC-18



Altice, Judge.


                                         Case Summary
Court of Appeals of Indiana | Memorandum Decision 45A05-1608-PC-1951 | May 30, 2017                  Page 1 of 20
[1]   Ronnie Rice appeals from the denial of his petition for post-conviction relief

      (PCR Petition). He presents four issues for our review, which we reorder and

      restate as follows:


              1. Was Rice’s guilty plea knowingly, voluntarily, and
                 intelligently made?


              2. Did the post-conviction court err in rejecting his claim of
                 ineffective assistance of trial counsel?


              3. Did the post-conviction court err in rejecting his claim of
                 ineffective assistance of appellate counsel?


              4. Did the trial court abuse its discretion in sentencing him to life
                 without the possibility of parole (LWOP)?


[2]   We affirm.


                                       Facts & Procedural History


[3]   Maxine Urbanczyk arrived to work at Kentucky Fried Chicken in Merrillville at

      around 8:30 a.m. on December 10, 2007. A store surveillance video shows Ms.

      Urbanczyk going to the back door, looking through a peephole, opening the

      door, and appearing to be familiar with the person on the other side. She

      handed the person a cordless telephone and then placed a piece of cardboard

      such that the door would not completely close, thus allowing access to the

      restaurant. A short time later, the video shows Rice, who worked at the

      restaurant, entering through the back door wearing a grey colored sweatshirt.

      Another surveillance camera captured Rice crouching down behind the front
      Court of Appeals of Indiana | Memorandum Decision 45A05-1608-PC-1951 | May 30, 2017   Page 2 of 20
      counter where the safe is located and taking items from the safe. A few minutes

      later, Rice is seen exiting the back door. Our Supreme Court, in considering

      the nature of the offense upon review of Rice’s direct-appeal challenge to his

      LWOP sentence, summarized what transpired while Rice was inside the

      restaurant.


              Rice arrived at work to rob the safe, but he needed Ms.
              Urbanczyk’s help to do it. Not wanting to leave any witnesses to
              his crime, he attacked Ms. Urbanczyk from behind with both a
              chair and a hammer. She sustained 15 head injuries including
              facial lacerations, cranial factures, brain contusions, and cranial
              hemorrhaging; a fractured rib cage; and a bruised left lung. She
              died from “extensive head injuries with chest injuries caused by
              blunt force trauma.”


      Rice v. State, 6 N.E.3d 940, 947 (Ind. 2014) (record citation omitted).


[4]   A short time later two employees arrived at the restaurant but were unable to

      gain access through the front door. Rice came from the back of the building,

      approached one of his coworker’s cars, took off his “greyish looking”

      sweatshirt, and put it in the back of her car. Sentencing Transcript at 67-8. Rice

      then asked his other coworker if he could wear his black sweatshirt.


[5]   During one of his interviews with police, Rice admitted that after he took the

      money from the safe, he approached Ms. Urbanczyk from behind and pushed

      her down and then hit her with a chair. At some point he grabbed a hammer

      and “just went berserk.” Sentencing Hearing Exhibit 75A at 29.




      Court of Appeals of Indiana | Memorandum Decision 45A05-1608-PC-1951 | May 30, 2017   Page 3 of 20
[6]   During the investigation, police located a hammer behind a filing cabinet at the

      crime scene. Swabs of blood taken from Rice’s grey sweatshirt and jeans

      matched Ms. Urbancyzk’s DNA profile. Ms. Urbanczyk’s store keys were

      found at the police station where Rice had hidden them while being

      interviewed. Ms. Urbancyzk’s jacket and bags of cash totaling $3667.89 were

      recovered from a dumpster near the area from where Rice appeared as he

      approached the front of the restaurant and encountered his coworkers.


[7]   On December 12, 2007, Rice was charged with murder, a felony, and murder in

      the perpetration of a robbery, a felony. Rice’s family hired an attorney to

      represent Rice.1 On February 5, 2008, the State amended the charging

      information to include a charge of robbery as a class B felony. The State also

      filed a request to seek a sentence of LWOP. The LWOP designation listed one

      aggravator—Rice killed the victim while committing or attempting to commit

      robbery.


[8]   On September 18, 2008, Rice filed a motion to suppress his statements to police

      and evidence gathered during a warrantless search of his home. The trial court

      conducted a suppression hearing over three days and issued an order denying

      Rice’s motion to suppress on February 24, 2009. Rice’s belated motion for




      1
       Attorney King testified at the post-conviction hearing that his first order of business in representing Rice
      was to meet with the prosecutor and try to dissuade the State from seeking the death penalty.

      Court of Appeals of Indiana | Memorandum Decision 45A05-1608-PC-1951 | May 30, 2017                 Page 4 of 20
       certification for interlocutory appeal was granted by the trial court, but this

       court denied his motion to accept jurisdiction.


[9]    On February 2, 2010, the trial court granted Rice’s motion to continue the trial

       to afford his mitigation expert additional time to investigate and prepare a

       report. On February 16, 2010, the trial court granted Rice’s petition for public

       fund payment and reimbursement for mitigation-expert expenses.


[10]   On January 18, 2011, six days before his scheduled jury trial, Rice pled guilty as

       charged without the benefit of a plea agreement. Rice submitted a statement of

       facts to serve as the factual basis for his guilty plea and therein acknowledged

       that he faced a sentence of LWOP and that sentencing would be left to the

       discretion of the trial court. After several continuances, a sentencing hearing

       was held January 9 through 12, 2012. The State requested that the court

       impose a sentence of LWOP. As mitigating evidence, Rice’s trial counsel

       called his mother and sister as witnesses and submitted three exhibits. At the

       conclusion of the hearing, the trial court sentenced Rice to LWOP.


[11]   Rice exercised his right to directly appeal to our Supreme Court. On appeal,

       Rice argued that the trial court erred in considering non-statutory aggravating

       circumstances in imposing a sentence of LWOP and that his sentence of

       LWOP was inappropriate. After holding oral argument, the Supreme Court

       issued an order directing the trial court to revise its sentencing order to comport

       with case law and to clarify whether it had relied upon non-statutory

       aggravating factors in imposing a sentence of LWOP. Rice v. State, No. 45S00-


       Court of Appeals of Indiana | Memorandum Decision 45A05-1608-PC-1951 | May 30, 2017   Page 5 of 20
       1206-CR-343, Order Remanding for Revised Sentencing Order (Ind. Feb. 12,

       2013). The trial court issued a revised sentencing order imposing a sentence of

       LWOP. Rice again appealed to the Supreme Court, arguing that the sentencing

       order remained deficient. See Rice v. State, 6 N.E.3d 940, 942 (Ind. 2014). In

       the alternative, Rice requested that the Court revise his sentence to a term of

       years. Id. at 946. The Court found no abuse of discretion by the trial court in

       identifying aggravating factors and concluded that neither the nature of the

       offense nor the character of the offender warranted a revision of Rice’s

       sentence. Id. at 946-47.


[12]   Rice, pro se, filed a PCR Petition on October 8, 2014. This petition was later

       amended by counsel on May 15, 2015. The post-conviction court held an

       evidentiary hearing on January 13, 14, and 15, 2016. The post-conviction court

       denied Rice’s PCR petition on August 2, 2016. Rice now appeals. Additional

       facts will be provided as necessary.


                                           Discussion & Decision


[13]   In a post-conviction proceeding, the petitioner bears the burden of establishing

       grounds for relief by a preponderance of the evidence. Bethea v. State, 983

       N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction

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

       judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In

       order to prevail, the petitioner must demonstrate that the evidence as a whole

       leads unerringly and unmistakably to a conclusion opposite the post-conviction


       Court of Appeals of Indiana | Memorandum Decision 45A05-1608-PC-1951 | May 30, 2017   Page 6 of 20
       court’s conclusion. Id. Although we do not defer to a post-conviction court’s

       legal conclusions, we will reverse its findings and judgment only upon a

       showing of clear error, i.e., “that which leaves us with a definite and firm

       conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729

       N.E.2d 102, 106 (Ind. 2000)).


                                                        1. Guilty Plea


[14]   Rice argues that his guilty plea was not knowing, voluntary, and intelligent. 2

       Specifically, he asserts that he did not understand that by pleading guilty he was

       also waiving his right to have a jury determine his sentence. He claims that his

       trial counsel misled him into thinking that pleading guilty with no benefit in

       exchange for his plea was in his best interest.3


[15]   With regard to sentencing, a guilty-plea defendant may waive his or her Sixth

       Amendment right to have a jury determine, beyond a reasonable doubt, all facts

       legally essential to the sentence so long as the defendant either stipulates to the

       relevant facts or consents to judicial factfinding. Averitte v. State, 824 N.E.2d




       2
        Rice is correct that post-conviction review is the appropriate mechanism by which to challenge the validity
       of his guilty plea. See Prowell v. State, 687 N.E.2d 563, 564 n.1 (Ind. 1997) (“when a defendant pleads guilty,
       he may challenge only sentencing errors on direct appeal, not alleged errors involving his guilty plea or
       conviction”) (citing Tumulty v. State, 666 N.E.2d 394 (Ind. 1996)) (emphasis in original). The post-conviction
       court erred in finding that Rice had waived his right to challenge the validity of his guilty plea by not raising
       such argument in his direct appeal. The post-conviction court also concluded, however, that even if the issue
       was not waived, Rice’s claim was meritless.
       3
         Rice does not dispute that he was advised of and understood that by pleading guilty he waived his right to
       trial by jury, his right to confrontation, and his right against self-incrimination. See Griffin v. State, 617 N.E.2d
       550, 552 (Ind. Ct. App. 1993) (noting that before a guilty plea may be considered voluntary and intelligent,
       the record must disclose that the defendant knew he was waiving these particular constitutional rights).

       Court of Appeals of Indiana | Memorandum Decision 45A05-1608-PC-1951 | May 30, 2017                     Page 7 of 20
       1283, 1287 (Ind. Ct. App. 2005) (citing Blakely v. Washington, 542 U.S. 296, 310-

       312 (2004)). At the post-conviction relief hearing, Rice’s trial counsel testified

       that he advised Rice that he could have a jury determine his sentence if he did

       not plead guilty. Rice did not present any evidence to dispute this fact.


[16]   Additionally, we note that at the guilty plea hearing, the trial court advised Rice

       of his constitutional rights and Rice indicated his understanding that he still

       faced a sentence of LWOP. Rice also submitted a document titled

       “Defendant’s Statement of Facts Re: Guilty Plea” that set forth the factual basis

       for the guilty plea and further provided:

               I [referring to Rice] further understand that I will still face the
               possible penalty for my crimes of life without parole and that by
               pleading guilty, I am giving up my right to have a jury consider
               evidence and recommend the appropriate penalty to the Court.
               Rather, I understand that the Court will conduct a sentencing
               hearing at a future date and that the Court alone will have
               authority to determine my sentence for the crimes I am pleading
               guilty to.


       Direct Appeal Appendix Vol. One at 159-60. During the guilty-plea hearing, Rice

       acknowledged his agreement with this statement and also affirmed that he had

       read, understood, and signed the document. Rice was fully aware that even by

       pleading guilty he faced a possible sentence of LWOP and that he was putting

       himself at the mercy of the trial court rather than having a jury determine his

       sentence.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1608-PC-1951 | May 30, 2017   Page 8 of 20
[17]   To the extent Rice also claimed that he was misled by his trial counsel into

       believing that he would benefit from pleading guilty, the post-conviction court

       disagreed. The post-conviction court first noted that there was no evidence that

       the State was willing to offer Rice a plea agreement with a different outcome.

       Second, the post-conviction court also noted that Rice’s trial counsel explained

       that, in his experience with cases of such a brutal nature, Rice stood a better

       chance of avoiding a sentence of LWOP if he accepted responsibility and

       submitted himself to the mercy of the trial court rather than asking a jury to

       decide his fate. As noted by the post-conviction court, simply because the trial

       court ultimately imposed a sentence of LWOP, does not establish that Rice was

       misled into pleading guilty.


[18]   We agree with the post-conviction court. Rice did not establish that he did not

       knowingly, voluntarily, and intelligently enter his guilty plea. The record

       demonstrates that Rice was fully aware of his rights and made the decision to

       follow counsel’s advice to accept responsibility by pleading guilty. He was not

       misled. Rather, he expressly acknowledged that even with pleading guilty and

       leaving sentencing to the trial court’s discretion, he still faced the possibility of

       LWOP.


                              2. Ineffective Assistance of Trial Counsel


[19]   A petitioner will prevail on a claim of ineffective assistance of counsel only

       upon a showing that counsel’s performance fell below an objective standard of

       reasonableness and that the deficient performance prejudiced the petitioner.


       Court of Appeals of Indiana | Memorandum Decision 45A05-1608-PC-1951 | May 30, 2017   Page 9 of 20
       Bethea, 983 N.E.2d at 1138. To satisfy the first element, the petitioner must

       demonstrate deficient performance, which is “representation that fell below an

       objective standard of reasonableness, committing errors so serious that the

       defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id.

       (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the

       second element, the petitioner must show prejudice, which is “a reasonable

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

       have been different.” Id. at 1139. Failure to satisfy either element will cause an

       ineffectiveness claim to fail. Carrillo v. State, 982 N.E.2d 461, 464 (Ind. Ct. App.

       2013). Thus, if a petitioner cannot establish prejudice, we need not evaluate the

       reasonableness of counsel’s performance. Id.


[20]   There is a “strong presumption” that counsel rendered adequate service. Myers

       v. State, 33 N.E.3d 1077, 1089 (Ind. 2015) (quoting Bethea, 983 N.E.2d at 1139).

       “We afford counsel considerable discretion in choosing strategy and tactics, and

       ‘[i]solated mistakes, poor strategy, inexperience, and instances of bad judgment

       do not necessarily render representation ineffective.’” State v. Hollin, 970

       N.E.2d 147, 151 (Ind. 2012) (quoting Timberlake v. State, 753 N.E.2d 591, 603

       (Ind. 2001)) (alteration in original). Indeed, “strategic choices made after

       thorough investigation of law and facts relevant to plausible options are

       virtually unchallengeable; and strategic choices made after less than complete

       investigation are reasonable precisely to the extent that reasonable professional

       judgments support the limitations on investigation.” Strickland v. Washington,

       466 U.S. 668, 690-91 (1984).

       Court of Appeals of Indiana | Memorandum Decision 45A05-1608-PC-1951 | May 30, 2017   Page 10 of 20
[21]   Rice argues that his trial counsel rendered ineffective assistance when he

       advised him to plead guilty and waive his right to have a jury determine his

       sentence. In the context of a guilty plea, a petitioner must establish a

       reasonable probability that, but for counsel’s errors, he would not have pled

       guilty and would have instead insisted on going to trial. Scott v. State, 986

       N.E.2d 292, 296 (Ind. Ct. App. 2013). “A reasonable probability is one that is

       sufficient to undermine confidence in the outcome.” Kubsch v. State, 934

       N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland, 466 U.S. at 694).


[22]   The evidence against Rice was overwhelming. Rice’s trial counsel testified at

       the post-conviction hearing and explained that his strategy in advising Rice to

       plead guilty without the benefit of a plea agreement was for Rice to receive

       some consideration for having wholly accepted responsibility for the crimes.

       Trial counsel further explained that in his experience, presenting a case of this

       nature to a jury would have created a “greater challenge to avoid the ultimate

       penalty sought than going directly to the Court.”4 Post-Conviction Transcript at

       13. Trial counsel stated that he believed that “any consideration that would be

       given was likely to come from a professional, a judge, [rather] than a jury.” Id.

       at 14.




       4
        Trial counsel noted that a trial court was without discretion if a jury recommended LWOP. See Ind. Code §
       35-50-2-9(e) (providing that “[i]f the jury reaches a sentencing recommendation [with regard to LWOP], the
       court shall sentence the defendant accordingly”) (emphasis supplied).

       Court of Appeals of Indiana | Memorandum Decision 45A05-1608-PC-1951 | May 30, 2017          Page 11 of 20
[23]   Trial counsel’s opinion was based on the circumstances of the crime and the

       evidence thereof, which would have painted a horrific picture of the last

       moments of Ms. Urbancyzk’s life as Rice brutally attacked her with first a chair

       and then a hammer in order to make sure there were no witnesses to his theft of

       money. We agree with the post-conviction court that trial counsel’s decision to

       advise Rice to plead guilty and give up his right to have a jury decide his

       sentence was clearly a strategic decision and wholly reasonable given the

       circumstances and brutal nature of the crime.


[24]   Rice also asserts that the post-conviction court failed to address his argument

       that trial counsel was ineffective because he advised Rice to plead guilty rather

       than further pursue a challenge to the voluntariness of his confession at trial,

       which would have, in turn, preserved the issue for review. Rice, however, does

       not explain how he was prejudiced. Indeed, even if we assume that Rice’s

       confession was obtained in violation of his constitutional rights and therefore

       excluded, there was overwhelming independent evidence of his guilt. That

       evidence clearly incriminated Rice in Ms. Urbanczyk’s death and would have

       included details of how Rice bludgeoned her to death with a hammer as well as

       gruesome pictures of the aftermath. Given the circumstances of the crime and

       the overwhelming evidence, Rice would be hard pressed to make a plausible

       argument that by not pleading guilty, the result of a trial would have been any

       different.


[25]   Rice argues that the post-conviction court failed to address his claim that trial

       counsel’s argument that a sentence of LWOP would be disproportionate and

       Court of Appeals of Indiana | Memorandum Decision 45A05-1608-PC-1951 | May 30, 2017   Page 12 of 20
       racially-based was unreasonable and poorly presented. Trial counsel testified

       that he spent a significant amount of time accumulating information about

       other murder cases in Lake County in order to show a racial bias as it

       concerned the decision to seek sentences of death or LWOP. Trial counsel put

       into evidence the probable cause affidavit and charging information from thirty-

       nine other murder cases in Lake County occurring in a five-year period ending

       in August 2011. Trial counsel sought to show that the State pursued the death

       penalty or LWOP in Lake County only when the victim was Caucasian and the

       defendant was a minority, with very few exceptions. Trial counsel testified that

       he was trying to point out that Rice’s crime was “not a particularly heinous

       offense” as compared with other murder cases where the State sought only a

       term of years. Post-Conviction Transcript at 34. In light of the information he had

       gathered, trial counsel argued that a sentence of LWOP was therefore

       inappropriate, especially if based only on the fact Rice is a minority.


[26]   As noted by Rice, the trial court and the State attempted to refute trial counsel’s

       argument by pointing to capital or LWOP cases not included in trial counsel’s

       evidence. Rice faults his trial counsel for not “stand[ing] by the evidence he

       presented and argue its mitigating effect.” Appellant’s Brief at 30. We have

       reviewed the record and reject Rice’s claim that counsel performed deficiently

       in this respect. Rice’s trial counsel adequately presented this argument to the

       court and was able to get his point across even though he did not explicitly

       distinguish those cases referenced by the trial court or the State. Indeed, as




       Court of Appeals of Indiana | Memorandum Decision 45A05-1608-PC-1951 | May 30, 2017   Page 13 of 20
       acknowledged by Rice, the cases mentioned by the trial court and the State did

       not disprove trial counsel’s point.


[27]   Rice argues that his trial counsel rendered ineffective assistance in failing to

       adequately investigate and present available mitigation during the penalty

       phase. At the sentencing hearing, Rice’s trial counsel called two witnesses on

       his behalf and presented the evidence in support of his disproportionate-

       sentence argument. Rice’s mother testified that Rice came from a broken home

       and that his father had been violent at times. She further detailed that Rice had

       been very close with his grandmother and that after her death he became

       depressed and seemed to withdraw. She described her son as a kind-hearted,

       loving person who was never violent. Rice’s sister echoed their mother’s

       sentiments about Rice’s nature and disposition and explained that Rice was

       under stress and was depressed at the time he committed the crimes. Both

       noted that Rice had a gambling problem and money-related issues associated

       therewith. Trial counsel did not present evidence from the mental health expert

       he had retained.


[28]   Rice called several witnesses at the post-conviction hearing—his sister, who

       testified in greater detail about their dysfunctional family, and five additional

       lay witnesses who each testified as to Rice’s non-violent nature, his rough

       upbringing, and/or his dysfunctional family. Each witness claimed they would

       have testified on Rice’s behalf at his sentencing hearing had his trial counsel

       asked them. Rice also presented the testimony of Dr. Bart Ferraro, a clinical

       psychologist, who evaluated Rice in 2015. Based on a review of the case file

       Court of Appeals of Indiana | Memorandum Decision 45A05-1608-PC-1951 | May 30, 2017   Page 14 of 20
       and interviews with family members, Dr. Ferraro concluded that Rice suffered

       from a depressive disorder not otherwise specified and a mixed personality

       disorder. He further explained the impact Rice’s upbringing had on him

       generally and on the day of the crime. Rice asserts that had trial counsel

       offered the testimony of the lay witnesses and Dr. Ferraro at the sentencing

       hearing, there was a reasonable probability that he would have been sentenced

       to a term of years rather than LWOP.


[29]   When questioned at the post-conviction hearing, Rice’s trial counsel explained

       he had reservations about the impact some of the potential witnesses would

       have had at sentencing,5 so he did not call them to testify on Rice’s behalf. He

       further explained that he did not call his mitigation expert as a witness because

       he believed that Rice’s mother, who he found to be a “very bright, very

       articulate woman,” would portray the substance of the expert’s findings in a

       “very credible manner” with a measure of emotion that only a mother who

       loves her son could provide. Post-Conviction Transcript at 22. Trial counsel

       believed Rice’s mother “would be impactive in terms of defining Mr. Rice

       beyond the four corners of the charges against him.” Id. at 23. He also noted

       that Rice’s lack of criminal history was a crucial mitigating factor.




       5
         Trial counsel expressed particular concern for calling Rice’s father, noting that after meeting with Rice’s
       father, he “did not form a positive impression” of him and found him to be “verbally combative.” Post-
       Conviction Transcript at 22.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1608-PC-1951 | May 30, 2017                Page 15 of 20
[30]   The post-conviction court summarized the testimony of the various witnesses

       Rice submitted as providing possible mitigating evidence for sentencing

       purposes. With regard to Dr. Ferraro’s testimony, the post-conviction court

       noted that although Dr. Ferraro believed Rice suffered from the specified

       disorders, he could not say that Rice was under the influence of an extreme

       mental or emotional disturbance at the time of the crime or that Rice’s capacity

       to conform his conduct was substantially impaired as a result of mental disease

       or defect at the time of the crime.


[31]   The post-conviction court also noted trial counsel’s efforts in terms of

       investigating and presenting mitigating evidence at the sentencing hearing.

       Specifically, Rice’s trial counsel had sought to hire a psychiatric expert without

       beneficial results. Further, the post-conviction court noted that although trial

       counsel did not call the mitigation expert as a witness on Rice’s behalf for

       purposes of sentencing,6 trial counsel was privy to all of the information

       gathered by the expert, including interviews with fourteen of Rice’s family

       members and friends, and his conclusions based thereon. Finally, the post-

       conviction court noted that trial counsel had personally met with several

       individuals associated with or related to Rice. Ultimately, the post-conviction




       6
         Rice’s trial counsel retained Dr. George Savarese, a mitigation expert, who researched Rice and Rice’s
       family and consulted with trial counsel. Trial counsel attempted to use Dr. Savarese’s assessment of Rice in
       support of the motion to suppress Rice’s confession to police. Based on his research of Rice and Rice’s
       family, Dr. Savarese concluded that Rice had cognitive deficits manifesting in a propensity for dissociation,
       susceptibility to contrasting extremes, and memory deficits. Dr. Savarese also concluded that Rice suffered
       from depression, dependent personality disorder, and bipolar disorder.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1608-PC-1951 | May 30, 2017              Page 16 of 20
       court concluded that Rice’s trial counsel adequately investigated mitigating

       circumstances and made a “tactical decision” with regard to how such

       circumstances were presented to the court for its consideration in sentencing.

       Appellant’s Appendix at 112. We have reviewed the record and cannot say that it

       supports a conclusion opposite that reached by the post-conviction court.

       Rice’s trial counsel was not ineffective with regard to his investigation and

       presentation of mitigating circumstances for purposes of sentencing.


                           3. Ineffective Assistance of Appellate Counsel


[32]   We review claims of ineffective assistance of appellate counsel using the same

       standard applicable to claims of ineffective assistance of trial counsel. Henley v.

       State, 881 N.E.2d 639, 644 (Ind. 2008). Accordingly, to prevail on his claim,

       Rice was required to show both that counsel’s performance was deficient and

       that the deficiency resulted in prejudice. Id. Judicial scrutiny is highly

       deferential regarding a claim that counsel was ineffective in failing to raise an

       issue on appeal thus resulting in waiver for collateral review, and the defendant

       must overcome the strongest presumption of adequate assistance. McKnight v.

       State, 1 N.E.3d 193, 204 (Ind. Ct. App. 2013) (citing Reed v. State, 856 N.E.2d

       1189, 1195 (Ind. 2006)).


[33]   On direct appeal to our Supreme Court, appellate counsel challenged whether

       the trial court impermissibly relied on non-statutory aggravators and whether a

       sentence of LWOP was inappropriate for Rice. Rice argues that his appellate

       counsel rendered ineffective assistance by failing to sufficiently state the


       Court of Appeals of Indiana | Memorandum Decision 45A05-1608-PC-1951 | May 30, 2017   Page 17 of 20
       appellate claims in terms of federal constitutional violations, thus failing to

       preserve them for federal habeas review.


[34]   The post-conviction court concluded that Rice failed to prove that he was

       prejudiced by appellate counsel’s advocacy. Rice, citing Wilson v. Corcoran, 562

       U.S. 1, 5 (2010), correctly asserts that federal habeas review exists only for

       violations of federal law. (providing that “it is only noncompliance with federal

       law that renders a State’s criminal judgment susceptible to collateral attack in

       the federal courts”) (emphasis in original)). Specifically, Rice maintains that

       appellate counsel should have argued that his right to due process and equal

       protection under the Fifth and Fourteenth Amendments of the United States

       Constitution were violated when the trial court considered and weighed non-

       statutory aggravating factors in violation of state law.


[35]   Rice’s argument itself sets forth why habeas review is not available. Rice

       clearly states that his argument is based on a violation of state law. The United

       States Supreme Court has repeatedly held that “‘federal habeas corpus relief

       does not lie for errors of state law.’” Estelle v. McGuire, 502 U.S. 62, 67 (1991)

       (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). “[I]t is not the province of a

       federal habeas court to reexamine state-court determinations on state-law

       questions.” Estelle, 502 U.S., at 67-68.


[36]   Further, the United States Supreme Court’s holding in Wilson, supra, actually

       cuts against his argument. The Supreme Court granted certiorari and vacated

       an opinion of the Seventh Circuit Court of Appeals granting habeas relief on a


       Court of Appeals of Indiana | Memorandum Decision 45A05-1608-PC-1951 | May 30, 2017   Page 18 of 20
       claim the Seventh Circuit characterized as whether “the Indiana trial court

       considered non-statutory aggravating circumstances … in contravention of state

       law.” Wilson, 562 U.S. at 5. The Supreme Court noted that the Seventh Circuit

       opinion “contained no hint that it thought the violation of Indiana law it had

       unearthed also entailed the infringement of any federal right.” Id.                   As noted

       above, Rice’s argument is based on alleged violation of state law. Rice does not

       articulate any specific violation of federal law with regard to his sentencing.

       Rather, he simply reiterates the arguments he made on direct appeal to our

       Supreme Court regarding the trial court’s consideration of non-statutory

       aggravating factors in sentencing Rice to LWOP with a cursory suggestion that

       such violated his right to due process and equal protection under the Fifth and

       Fourteenth Amendments of the United States Constitution.


[37]   In light of the Supreme Court’s holding in Wilson, any attempt by appellate

       counsel to “federalize” the argument that his sentence was in violation of state

       law would not have preserved a meritorious claim for habeas review. The post-

       conviction court did not err in concluding that appellate counsel was not

       ineffective.


                                                 4. Sentencing


[38]   Rice argues that the trial court abused its discretion in imposing a sentence of

       LWOP. Rice acknowledges that our Supreme Court reviewed his allegations

       that the trial court improperly considered non-statutory aggravating factors and

       concluded that the trial court did not abuse its discretion. Rice now claims that


       Court of Appeals of Indiana | Memorandum Decision 45A05-1608-PC-1951 | May 30, 2017    Page 19 of 20
       our Supreme Court “side-stepped the fact the trial court explicitly considered

       Rice’s future dangerousness in [the] revised sentencing order.” Appellant’s Brief

       at 37.


[39]   As a general rule, when a court decides an issue on direct appeal, the doctrine

       of res judicata applies, thereby precluding its review in post-conviction

       proceedings. Ben-Yisrayl, 738 N.E.2d at 258. The doctrine of res judicata

       prevents the repetitious litigation of that which is essentially the same dispute.

       Sweeney v. State, 704 N.E.2d 86, 94 (Ind. 1998). Our Supreme Court has

       already reviewed the sentence imposed and held that the trial court did not

       abuse its discretion in sentencing Rice to LWOP. Rice’s argument is barred by

       res judicata.


[40]   Judgment affirmed.


       Riley, J. and Crone, J., concur.




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