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 2019, 8:18 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




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Howard Harris                                            Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Howard Harris,                                           May 30, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-1389
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy J. Barber,
Appellee-Respondent.                                     Magistrate
                                                         The Honorable Marc Rothenberg,
                                                         Judge
                                                         Trial Court Cause No.
                                                         49G02-0603-PC-43071



Tavitas, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1389 | May 30, 2019                     Page 1 of 16
                                             Case Summary
[1]   Howard Harris, pro se, appeals the post-conviction court’s (“PC court”) denial

      of his petition for post-conviction relief. We affirm.


                                                    Issues
[2]   Harris raises several issues, which we revise and restate as:


              I.      Whether Harris’ freestanding claim fails.

              II.     Whether Harris was entitled to post-conviction relief based
                      on newly discovered evidence.

              III.    Whether Harris was denied the effective assistance of trial
                      counsel.

              IV.     Whether Harris was denied the effective assistance of
                      appellate counsel.

                                                     Facts
[3]   The facts as stated in Harris’ direct appeal follow:


              During the evening of February 1, 2006, Royal Amos (“Amos”)
              called Keyonia Dunn (“Dunn”), his ex-girlfriend, who was
              pregnant with his child, demanding that she surrender her SSI
              disability check to him. Amos threatened to kill Dunn if she did
              not comply.


              Later that same evening, Harris drove Amos to Dunn’s
              Indianapolis apartment. Inside the apartment, Dunn, her
              roommate Erika Thornton (“Thornton”), and their four children
              were sleeping. Harris broke through the door, and Amos entered
              the apartment armed with a handgun. Amos fired multiple
              gunshots into Dunn, Thornton, and their children. When he ran
              out of bullets, Amos began to bludgeon the children. Harris and

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1389 | May 30, 2019   Page 2 of 16
                Amos ran in different directions, and Amos disposed of the gun
                by throwing it behind a residence. The pair met up later that
                evening and fled to Kentucky together.


                At approximately 11:00 p.m. that evening, David Torres
                (“Torres”) was walking his dog through the apartment complex
                when he heard children crying. As he approached the three
                children, Torres could see that they were covered in blood. The
                two older children were carrying their five-year-old brother, who
                had sustained multiple gunshot wounds. Torres and another
                apartment resident assisted the children and called 9-1-1. Police
                found Dunn and Thornton dead inside their apartment, and
                Dunn’s two-year-old child gravely wounded. Each of the
                children survived.


                Once they learned of Amos’s threats against Dunn, the
                Indianapolis Metropolitan Police Department (“IMPD”) issued
                an “attempt to locate homicide suspect” bulletin to other law
                enforcement jurisdictions and began to track activity on Amos’s
                and Harris’s cell phones. (Tr. 244.) As the investigation
                progressed, Amos and Harris were tracked to Bowling Green,
                Kentucky and later Bloomington, Indiana. Amos and Harris
                were arrested in Bloomington.


      Harris v. State, No. 49A04-0708-CR-451 (Ind. Ct. App. Mar. 7, 2008), trans.

      denied.


[4]   On March 8, 2006, the State charged Harris with two counts of murder; four

      counts of attempted murder, Class A felonies; burglary, a Class A felony; two

      counts of aggravated battery, Class B felonies; and four counts of battery, Class

      B felonies. In July 2006, the State filed a motion to amend the charging

      information to add two counts of felony murder. On the first day of the jury

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1389 | May 30, 2019   Page 3 of 16
      trial in June 2007, the State moved to dismiss the two counts of aggravated

      battery, which the trial court granted.


[5]   The jury found Harris guilty of two counts of murder; four counts of attempted

      murder, Class A felonies; burglary, a Class A felony; four counts of battery,

      Class B felonies; and two counts of felony murder. On July 11, 2007, the trial

      court vacated the convictions for felony murder and battery and sentenced

      Harris to an aggregate sentence of 260 years.


[6]   On direct appeal, Harris argued that: (1) the trial court abused its discretion by

      allowing testimony referencing omissions in the probable cause affidavit; (2) the

      State presented insufficient evidence to support his convictions because the

      testimony of two primary witnesses was incredibly dubious; and (3) his

      sentences were inappropriate. We affirmed, and our Supreme Court denied

      Harris’ petition for transfer.


[7]   In January 2009, Harris filed a petition for post-conviction relief, which he

      amended twice, and later filed a petition to withdraw his petition without

      prejudice. The PC court granted his petition to withdraw. In June 2013, Harris

      again filed a petition for post-conviction relief, which he amended numerous

      times. Ultimately, Harris claimed that: (1) he received ineffective assistance of

      trial counsel; (2) he was entitled to a new trial based on newly discovered

      evidence; and (3) he received ineffective assistance of appellate counsel. After

      an evidentiary hearing, the PC court denied Harris’ petition for post-conviction

      relief. Harris now appeals.


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1389 | May 30, 2019   Page 4 of 16
                                                  Analysis
[8]   Our Supreme Court has stated:


              The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence. When appealing from the denial of post-conviction
              relief, the petitioner stands in the position of one appealing from
              a negative judgment. To prevail on appeal from the denial of
              post-conviction relief, a petitioner must show that the evidence as
              a whole leads unerringly and unmistakably to a conclusion
              opposite that reached by the post-conviction court. [Where, as
              here, a post-conviction court has made findings of fact and
              conclusions of law in accordance with Indiana Post-Conviction
              Rule 1(6), we] do not defer to the post-conviction court’s legal
              conclusions[.] 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.


      Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014) (internal quotations and

      citations omitted). As the clearly erroneous standard “is a review for

      sufficiency of evidence, we neither reweigh the evidence nor determine the

      credibility of witnesses.” State v. Greene, 16 N.E.3d 416, 418 (Ind. 2014)

                      . “Rather, we ‘consider only the evidence that supports that

      judgment and the reasonable inferences to be drawn from that evidence.’” Id.

      (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258-59 (Ind. 2000), cert. denied, 534

      U.S. 1164, 122 S. Ct. 1178 (2000)).




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1389 | May 30, 2019   Page 5 of 16
                                           I. Freestanding Claim

[9]    Harris argues that fundamental error occurred when the trial court allowed

       felony murder charges to be added after the commencement of the trial.

       Postconviction procedures do not afford a petitioner with a super-appeal, and

       not all issues are available. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001),

       cert. denied, 537 U.S. 839, 123 S. Ct. 162 (2002). Rather, subsequent collateral

       challenges to convictions must be based on grounds enumerated in the

       postconviction rules. Id. If an issue was known and available, but not raised on

       direct appeal, it is waived. Id. “Freestanding claims of fundamental error are

       not available in post-conviction proceedings.” Hinesley v. State, 999 N.E.2d 975,

       988 (Ind. Ct. App. 2013), trans. denied. Because this issue was known and

       available on direct appeal but not raised, Harris’ claim is not available as a

       freestanding claim of fundamental error in a petition for post-conviction relief.


                                      II. Newly Discovered Evidence

[10]   Harris argues that his “due [p]rocess [r]ights [were] violated when the State

       knowingly presented perjured testimony from its case-in-chief witness Brian

       Wynne.” Appellant’s Br. p. 20. The State and the PC court addressed this

       issue in the context of newly discovered evidence.


[11]   Indiana Post-Conviction Rule 1(1)(a)(4) provides that post-conviction relief is

       available to any “person who has been convicted of, or sentenced for, a crime

       by a court of this state, and who claims” that “there exists evidence of material




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1389 | May 30, 2019   Page 6 of 16
       facts, not previously presented and heard, that requires vacation of the

       conviction or sentence in the interest of justice.”


               [N]ew evidence will mandate a new trial only when the
               defendant demonstrates that: (1) the evidence has been
               discovered since the trial; (2) it is material and relevant; (3) it is
               not cumulative; (4) it is not merely impeaching; (5) it is not
               privileged or incompetent; (6) due diligence was used to discover
               it in time for trial; (7) the evidence is worthy of credit; (8) it can
               be produced upon a retrial of the case; and (9) it will probably
               produce a different result at retrial.


       Kubsch v. State, 934 N.E.2d 1138, 1145 (Ind. 2010). The burden of proving all

       nine requirements rests with the petitioner for post-conviction relief. Id.


[12]   During Harris’ trial, Wynne testified that he was incarcerated with Harris and

       that Harris confessed his involvement in the offenses to Wynne. Wynne

       testified regarding a benefit he received for his testimony with respect to charges

       that had been pending against him in Marion County. He also testified that

       additional charges had been filed against him in Marion County and Johnson

       County and that he was not expecting a benefit with respect to those charges in

       exchange for his testimony. Wynne, however, was hopeful to receive a benefit

       in the future.


[13]   According to Harris, the “newly discovered evidence” at issue here is testimony

       given by the Marion County deputy prosecutor at the September 2007

       sentencing hearing in Wynne’s Johnson County case. The Marion County

       deputy prosecutor testified that, with respect to the Marion County pending


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1389 | May 30, 2019   Page 7 of 16
       cases, following Wynne’s testimony in Harris’ trial, she had directed that: (1) a

       habitual offender allegation not be filed; (2) Wynne receive concurrent

       sentences; and (3) the sentences be concurrent with the sentences from the

       Johnson County charges. The Marion County deputy prosecutor testified that

       she did not intervene with respect to the Johnson County cases. The Johnson

       County trial court did not give Wynne “any additional break” because of the

       “substantial break that [Wynne] already received in Marion County.” Exhibit

       Vol. I p. 98.


[14]   The PC court rejected Harris’ argument as follows:


               15. Brian Wynne testified at length, both in direct examination
               and on cross, about his legal troubles, his existing plea
               agreement, and his hopes for future help from the State with his
               testimony. He told the jurors he would “be foolish” not to hope
               for a deal on the new cases. Transcript, p. 493. The Marion
               County prosecutor, Denise Robinson, testified at Wynne’s
               sentencing hearing on 12/20/07: “I had told Brian prior to his
               testimony in Marion County that I would offer him nothing for
               the testimony that he was going to, I expected him to keep his
               word and do what he said he was going to do.” Ex. V, p. 26.
               And while she did assist with the concurrent plea in Johnson
               County, that was long after Petitioner’s trial was complete and
               not completely unforeseen. The jurors were well aware that
               Wynne was treated favorably by the State for his cooperation.
               The jurors were well aware that Wynne hoped for continued
               favorable treatment from the State, which after all, is what
               Petitioner claims is the motivating factor for Wynne to testify.
               All of this amounts to material that is merely impeachment. And
               Petitioner never questioned Denise Robinson about the course of
               events in this matter, even though the Court bifurcated his PCR
               hearing for her to appear and she did appear. (The Court also

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1389 | May 30, 2019   Page 8 of 16
               notes that Wynne did not exactly benefit in Johnson County - he
               received a lengthy sentence that he appealed as being
               unreasonable. The Court of Appeals found otherwise).


               16. The Court finds that this evidence does not meet the
               requirements as “newly-discovered” evidence; Petitioner has
               failed to meet his burden of proof on this issue.


       Appellant’s App. Vol. I pp. 42-43.


[15]   We agree with the PC court that the newly discovered evidence does not entitle

       Harris to a new trial. This evidence is merely impeaching. Moreover, the jury

       was well aware that Wynne had received a benefit for his testimony at Harris’

       trial and that Wynne hoped to receive a benefit with respect to his additional

       pending charges in Marion and Johnson counties. The additional evidence of a

       benefit to Wynne with respect to his new charges would be unlikely to produce

       a different result if Harris was granted a new trial. The PC court’s finding on

       this issue is not clearly erroneous.


                              III. Ineffective Assistance of Trial Counsel

[16]   Harris 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: (1) his or her counsel’s performance was deficient, and (2) 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, 534 U.S. 830, 122 S. Ct. 73 (2001). A

       counsel’s performance is deficient if it falls below an objective standard of

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1389 | May 30, 2019   Page 9 of 16
       reasonableness based on prevailing professional norms. French v. State, 778

       N.E.2d 816, 824 (Ind. 2002). To meet the appropriate test for prejudice, the

       petitioner must show that there is a reasonable probability that, but for

       counsel’s unprofessional errors, the result of the proceeding would have been

       different. Id. “A reasonable probability is a probability sufficient to undermine

       confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

       Failure to satisfy either prong will cause the claim to fail. Grinstead v. State, 845

       N.E.2d 1027, 1031 (Ind. 2006). Most ineffective assistance of counsel claims

       can be resolved by a prejudice inquiry alone. Id.


                                             A. Motion to Suppress

[17]   Harris argues that his trial counsel should have moved to suppress “false

       statements submitted by Detective Rogers in his Probable Cause Arrest

       affidavit.” Appellant’s Br. p. 10. The probable cause affidavit prepared by

       Detective William Rogers discusses “voluntary statements” made by Harris to

       Detective Rogers and Detective Gullion. Harris seems to imply that statements

       were not “voluntary” and that Detective Rogers’ statements in the probable

       cause affidavit were not truthful. 1 Appellant’s Br. p. 11. Harris, however, cites

       no evidence to support his assertions. Harris’ argument is waived for failure to

       make a cogent argument. See Ind. Appellate Rule 46(A)(8)(a); Silvers v. State,




       1
        In his reply brief, Harris argues that his statements should have been recorded pursuant to Indiana Evidence
       Rule 617. This rule, however, was adopted in 2011, long after Harris’ arrest and trial.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1389 | May 30, 2019                   Page 10 of 16
       114 N.E.3d 931, 937 n.1 (Ind. Ct. App. 2018) (holding that an argument was

       waived for failure to support it with cogent reasoning).


            B. Objection to Testimony by Detective Rogers and Detective Gullion

[18]   Next, Harris contends that his trial counsel should have objected to trial

       testimony by Detective Rogers and Detective Gullion. Harris argues that

       Detectives Rogers and Gullion committed perjury by testifying that Harris

       made the voluntary statements as they were entering the interview room,

       whereas the probable cause affidavit stated that the statements were made in the

       interview room. According to Harris, his trial counsel should have objected to

       the “perjured” testimony. Appellant’s Br. p. 11.


[19]   “[T]o prevail on a claim of ineffective assistance due to the failure to object, the

       defendant must show an objection would have been sustained if made.”

       Overstreet v. State, 877 N.E.2d 144, 155 (Ind. 2007), cert. denied, 555 U.S. 972,

       129 S. Ct. 458 (2008). Harris fails to demonstrate how this minor inconsistency

       would have made the testimony of Detectives Rogers and Gullion inadmissible

       or how an objection by his trial counsel would have been sustained. Further,

       even if trial counsel had objected and the objection had been sustained, Harris

       fails to demonstrate how the outcome of his trial would have been different

       based on this very minor discrepancy. Accordingly, Harris’ argument fails.


                             C. Failure to Investigate Regarding Wynne

[20]   Harris argues that his trial counsel failed to perform an investigation of Wynne

       to discover “several pending plea offers in place for Wynne’s continued

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1389 | May 30, 2019   Page 11 of 16
       cooperation.” Appellant’s Br. p. 13. As noted above, during Wynne’s

       testimony, he mentioned that he had pending charges in Marion and Johnson

       counties. Harris, however, presented absolutely no evidence that Wynne had

       pending plea offers in those cases for his continued cooperation at the time of

       Harris’ trial. Harris has failed to demonstrate that his trial counsel was deficient

       on this issue. Moreover, as the State notes, the jury was well aware that Wynne

       had received a benefit in exchange for his testimony and that he was hopeful to

       receive more benefits. Harris has failed to demonstrate how he was prejudiced

       by his trial counsel’s alleged deficiency.


                                 D. Failure to Depose Alibi Witnesses

[21]   Harris argues that his trial counsel rendered ineffective assistance by failing to

       depose Cecciula Harris and Katherine Amos. According to Harris, these

       witnesses would have testified that Harris was with them at Chuck E. Cheese

       and Claude & Annie’s on the evening of the murders. Harris, however, failed

       to present any evidence from these alleged alibi witnesses during his post-

       conviction relief hearing. See, e.g., Hunter v. State, 578 N.E.2d 353, 355 (Ind.

       1991) (“[W]e have no idea what the witnesses would have testified about and

       have no basis to judge counsel’s performance.”). Harris’ argument is waived

       for failure to make a cogent argument. See Ind. Appellate Rule 46(A)(8)(a);

       Silvers, 114 N.E.3d at 937 n.1. Moreover, given the lack of evidence regarding

       these proposed alibi witnesses’ testimony, Harris has failed to demonstrate that

       his trial counsel’s performance was deficient or that he was prejudiced by the

       alleged deficiency.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1389 | May 30, 2019   Page 12 of 16
                        E. Failure to Interview or Depose State’s Witnesses

[22]   Harris argues that his trial counsel rendered ineffective assistance by failing to

       interview or depose David Torres, Ebony Colbert, and Denise Johnson, who

       assisted the children after their mothers were killed until the police arrived.

       Again, Harris has failed to demonstrate that additional investigation or

       depositions of these witnesses would have produced additional relevant

       evidence or impacted his trial in any way. Given the lack of additional

       evidence, Harris has failed to demonstrate that his trial counsel’s performance

       was deficient or that he was prejudiced by the alleged deficiency.


                               F. Amendment of Charging Information

[23]   Harris’ next three arguments concern his trial counsel’s failure to object to the

       amendment of the charging information on the day of the trial to add two

       felony murder charges. Harris’ argument reflects a misunderstanding of the

       record.


[24]   On March 8, 2006, the State charged Harris with two counts of murder; four

       counts of attempted murder, Class A felonies; burglary, a Class A felony; two

       counts of aggravated battery, Class B felonies; and four counts of battery, Class

       B felonies. In July 2006, the State filed a motion to amend the charging

       information to add two counts of felony murder. At a pre-trial conference on

       July 12, 2006, the parties discussed the proposed amendments, and Harris’ trial

       counsel asked for a few days to “file a response if I have an objection.”

       Appellant’s App. Vol. I p. 83. The trial court took the motion under


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1389 | May 30, 2019   Page 13 of 16
       advisement and gave Harris’ trial counsel two weeks to “file any written

       objections that you have.” Id. at 84. Harris’ trial counsel did not file an

       objection to the amendment. Although the CCS does not reflect a grant of this

       motion to amend the charging information, the felony murder charges were

       considered at the jury trial without objection from Harris’ trial counsel.


[25]   On the first day of the jury trial in June 2007, the State moved to dismiss the

       two counts of aggravated battery, which the trial court granted. The State then

       requested another amendment of the charging information to correct “clerical”

       errors. Direct Appeal Tr. p. 9. Defense counsel agreed that the changes were

       “clerical” in nature and did not object. Id.


[26]   Harris seems to believe that the clerical corrections to the charging information

       on the morning of the trial actually added the felony murder charges. The

       record, however, does not support Harris’ assertion. The PC court noted that

       the “amendment” on the morning of the trial was merely “a re-numbering of

       the charges after the State dismissed two counts.” Appellant’s App. Vol. I p.

       39. The PC court found “no substantive amendment” and no ineffective

       assistance of counsel based on this issue. Id. at 42. We agree. Harris’

       misunderstanding of the record does not establish that his trial counsel was

       deficient for failing to object to the amendment of the charges. Moreover, the

       guilty verdicts on the felony murder charges were vacated by the trial court on




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1389 | May 30, 2019   Page 14 of 16
       double jeopardy grounds. Harris cannot show prejudice from his trial counsel’s

       alleged deficiency. 2


                             IV. Ineffective Assistance of Appellate Counsel

[27]   Next, Harris argues that he received ineffective assistance of appellate counsel.

       The standard of review for a claim of ineffective assistance of appellate counsel

       is the same as for trial counsel. Ben-Yisrayl, 729 N.E.2d at 106. Our Supreme

       Court has held that ineffective assistance of appellate counsel claims “generally

       fall into three basic categories: (1) denial of access to an appeal, (2) waiver of

       issues, and (3) failure to present issues well.” Garrett v. State, 992 N.E.2d 710,

       724 (Ind. 2013).


[28]   Harris argues that his appellate counsel filed his appellant’s brief for his direct

       appeal before the court reporter completed transcribing the trial transcripts. 3

       According to Harris, his appellate counsel could not have properly reviewed

       and presented a complete appellant’s brief. The State correctly argues that

       Harris’ claim is based on a “misunderstanding of appellate procedure.”

       Appellee’s Br. p. 33. Under Indiana Appellate Rule 12(B)(1)(a), the transcript

       in a criminal appeal is not transmitted to the clerk of this court until the




       2
         Harris also argues that he is entitled to relief based upon the cumulative errors of his trial counsel. We have
       found no ineffective assistance of trial counsel based upon the individual errors presented by Harris, and his
       request for relief based on the cumulative effect of the alleged errors also fails.
       3
         Harris also seems to argue that his appellate counsel should have presented other issues on appeal regarding
       the amended charging information and juror bias. We have already rejected Harris’ argument regarding the
       amended charging information, and Harris has waived the juror bias claim by failing to make a cogent
       argument. See Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1389 | May 30, 2019                       Page 15 of 16
       appellant’s brief has been filed. The transcript, thus, would have been available

       from the county clerk’s office for Harris’ appellate counsel to review prior to the

       filing of the appellant’s brief. In fact, Harris’ appellant’s brief in his direct

       appeal contains many citations to the transcript. Accordingly, Harris’ argument

       fails. The PC court properly denied Harris’ claim of ineffective assistance of

       appellate counsel.


                                                 Conclusion
[29]   The PC Court properly denied Harris’ petition for post-conviction relief. We

       affirm.


[30]   Affirmed.


       Baker, J., and May, J. Concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1389 | May 30, 2019   Page 16 of 16
