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
                                                           Apr 10 2013, 9:10 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.




APPELLANT PRO SE:                                 ATTORNEYS FOR APPELLEE:

TIMOTHY MILLER                                    GREGORY F. ZOELLER
Carlisle, Indiana                                 Attorney General of Indiana

                                                  CYNTHIA L. PLOUGHE
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana

                               IN THE
                     COURT OF APPEALS OF INDIANA

TIMOTHY MILLER,                                   )
                                                  )
        Appellant-Petitioner,                     )
                                                  )
               vs.                                )      No. 06A04-1211-PC-59 1
                                                  )
STATE OF INDIANA,                                 )
                                                  )
        Appellee-Respondent.                      )


                       APPEAL FROM THE BOONE CIRCUIT COURT
                          The Honorable Rebecca S. McClure, Judge
                               Cause No. 06C01-1205-PC-135


                                        April 10, 2013

                MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       Timothy Miller appeals the post-conviction court’s denial of his petition for post-

conviction relief. We affirm.

                                            Issue

       Miller raises one issue, which we restate as whether he received ineffective

assistance of trial counsel.

                                            Facts

        The facts, as detailed in Miller’s direct appeal, follow:

                      In early 2007, Detective Mike Beard of the Boone
              County Sheriff’s Department received a report that Miller had
              been molesting his step-daughter, H.G., who was born on
              November 15, 1989. Ultimately, H.G. told Detective Beard
              that her step-father, Miller, had been molesting her for years
              and was the father of her child, who was born on May 4,
              2006. H.G. told Detective Beard that Miller had threatened
              her with violence if she said anything about the abuse.
              Detective Beard obtained DNA samples from H.G., her child,
              and Miller. The child’s DNA revealed that she inherited
              DNA from both H.G. and Miller, and tests determined that
              there was a 99.99% chance that Miller was the child’s father.
                      At trial, H.G. testified that the first time Miller had sex
              with her was when she was twelve years old and detailed
              what she was wearing and the circumstances of the first
              molestation. H.G. stated that Miller continued to molest her
              for several years, first in Miller’s apartment, later at her
              mother’s house, and sometimes in the sleeper cab of his truck.
                      H.G. testified that when she told Miller she was
              pregnant, he told her to get an abortion, but H.G. objected.
              Miller later told H.G. that she should tell people that a
              recently deceased friend was the father of her child. H.G. did
              initially tell her mother that story, and H.G.’s mother repeated
              that story to H.G.’s siblings. Miller continued to attempt to
              have intercourse with H.G. while she was pregnant.
                      Dr. Robert McCarty was the obstetrician/gynecologist
              who treated H.G. Dr. Ted Winkler, Dr. McCarty’s partner,

                                              2
                 saw H.G. on February 27, 2006, and Dr. McCarty saw her on
                 April 13, 2006. The doctors determined on H.G.’s first visit
                 that the baby was likely conceived in September 2005 and
                 was due in June 2006. However, a March 2006 ultrasound
                 revealed that the baby was due in May 2006. Based upon
                 ultrasound measurements, Dr. McCarty estimated that the
                 baby was conceived approximately on August 14, 2005, with
                 a range of error from late July to early September. H.G.’s
                 baby was born on May 4, 2006. In Dr. McCarty’s opinion,
                 H.G. was fifteen years old when the baby was conceived.

Miller v. State, No. 06A01-0810-CR-487, slip op. at 2-3 (Ind. Ct. App. May 6, 2009),

trans. denied.

       In 2007, the State charged Miller with Class A felony child molesting and Class B

felony sexual misconduct with a minor. A jury found Miller guilty as charged. The trial

court sentenced Miller to concurrent sentences of forty years for the child molesting

conviction and fifteen years for the sexual misconduct with a minor conviction. We

affirmed Miller’s convictions and sentences on direct appeal.

       In 2012, Miller filed a petition for post-conviction relief, arguing that his trial

counsel was ineffective. Miller argued in part that his trial counsel failed to present

evidence that Miller first had sexual intercourse with H.G. after she turned fourteen years

old rather than before she was fourteen. According to Miller, that evidence would have

precluded his Class A felony child molesting conviction. After a hearing, the post-

conviction court entered findings of fact and conclusions thereon denying Miller’s

petition for post-conviction relief. Miller now appeals.




                                              3
                                         Analysis

       Miller challenges the denial of his petition for post-conviction relief. 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.

       Miller argues that he received ineffective assistance of trial counsel. 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 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,

                                             4
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.

       On appeal, Miller argues that his trial counsel should have presented evidence that

he did not lease his apartment where the first assault occurred until January 2003.

According to Miller, this evidence would have established that H.G. was not assaulted in

2001 as she testified during the trial. The post-conviction court noted that Miller had

submitted two inconsistent leases during post-conviction proceedings:

              32.    The Lease tendered at post-conviction hearing as
                     Petitioner’s Exhibit 5, states on page one (1) that
                     Petitioner’s lease with Parkview Apartments covered a
                     period of twenty four (24) months from January 18,
                     2003, to January 31, 2005. On page three (3) of
                     Petitioner’s Exhibit 5, the lease appears to have been
                     signed by the Petitioner on January 18, 2003. It is
                     obvious that the 2003 date on page three (3) of
                     Petitioner’s Exhibit 5 was changed from 2002 to 2003
                     at some time.

                                          *****

              35.    On August 24, 2012, Miller submitted a signed
                     Parkview Apartment Lease Agreement (“Lease”)
                     together with the Affidavit of Attorney Richard
                     Milam. The lease submitted on August 24, 2012,
                     differs from the lease offered at post-conviction
                     hearing in July. The later submitted lease states that

                                              5
                      the lease was to cover the twelve (12) month period
                      from January 18, 2003, through January 18, 2004. It is
                      obvious that the dates 2003 and 2004 have been
                      altered. On page three (3) of the Lease submitted on
                      August 24, 2012 it appears that the Petitioner signed
                      the Parkview Lease on January 18, 2002. This number
                      does not appear to have been altered.

App. pp. 12-13. In its conclusions, the trial court found:

                51.   The Lease Agreement tendered by Petitioner at post-
                      conviction hearing and his August 24, 2012,
                      submission are not the same. Further, on page three
                      (3) of the Lease Agreement tendered by post-
                      conviction counsel on August 24, 2012, the lease
                      appears to have been executed in January 2002.

                52.   In January 2002, [H.G.] was twelve (12) years of age.

                53.   Given the date on the Lease, and that [H.G.] would
                      have been twelve (12) years of age at that time, the
                      Court cannot conclude that production of the Parkview
                      Apartment Lease at trial would have likely resulted in
                      a different outcome. Had the Lease been admitted at
                      trial the impact of that Lease, given the date of
                      execution, is highly questionable.

                                         *****

                55.   The Court finds that [Miller’s counsel’s] failure to
                      offer the Lease Agreement from Parkview Apartments
                      does not demonstrate deficient performance.

Id. at 16-17.

       The offense of child molesting is governed by Indiana Code Section 35-42-4-3,

which provides: “A person who, with a child under fourteen (14) years of age, performs

or submits to sexual intercourse or deviate sexual conduct commits child molesting . . . .”

The offense is a Class A felony if committed by a person at least twenty-one years old.


                                             6
H.G. was born on November 15, 1989, and she turned fourteen years old on November

15, 2003. She testified that Miller started molesting her at his apartment in 2001 when

she was twelve years old. However, H.G.’s mother testified that Miller moved into his

apartment in April 2003.      Based on the lease agreements submitted during post-

conviction proceedings, Miller argues that he lived in the apartment beginning in January

2003. The post-conviction court analyzed the two competing lease agreements and

determined that one of the leases indicates that Miller lived in the apartment beginning in

January 2002, when H.G. was twelve years old. Even if we accept Miller’s argument that

he did not move into the apartment until January 2003, H.G. would have been thirteen

years old for the majority of Miller’s stay in that apartment. Further, H.G. became

pregnant in approximately August 2005 when she was fifteen years old, and she testified

that Miller had been molesting her for several years before the birth of her child in May

2006.

        Miller has failed to demonstrate a reasonable probability that, but for trial

counsel’s failure to offer the lease into evidence, the result of the proceeding would have

been different. We conclude that the post-conviction court was correct that, even if

Miller’s trial counsel had offered the lease agreements as evidence at his trial, the impact

of the lease at trial was “highly questionable.” App. p. 16. The post-conviction court

concluded that Miller’s trial counsel’s performance was not deficient and, even if it was

deficient, “the actions/omissions of trial counsel did not prejudice” Miller. Id. at 18. We

cannot say the post-conviction court’s conclusion is clearly erroneous.



                                             7
                                      Conclusion

      The post-conviction court’s denial of Miller’s petition for post-conviction relief is

not clearly erroneous. We affirm.

      Affirmed.

NAJAM, J., and BAILEY, J., concur.




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