MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                              Jul 13 2018, 9:06 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


APPELLANT, PRO SE                                         ATTORNEYS FOR APPELLEE
Richard Dodd                                              Curtis T. Hill, Jr.
Pendleton, Indiana                                        Attorney General of Indiana
                                                          Larry D. Allen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Richard Dodd,                                             July 13, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          71A03-1702-PC-452
        v.                                                Appeal from the St. Joseph
                                                          Superior Court
State of Indiana,                                         The Honorable Elizabeth C.
Appellee-Plaintiff.                                       Hurley, Judge
                                                          Trial Court Cause No.
                                                          71D08-1509-PC-40



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-452 | July 13, 2018            Page 1 of 18
                                        Statement of the Case
[1]   Richard Dodd (“Dodd”) appeals from the post-conviction court’s denial of his

      second successive petition for post-conviction relief. He specifically challenges

      the denial of his claim alleging that he had received ineffective assistance of

      appellate counsel from the attorney who filed the appeal from his resentencing

      hearing. Concluding that Dodd has failed to meet his burden of showing that

      the post-conviction court erred by denying relief on his allegation of ineffective

      assistance of resentencing appellate counsel, we affirm the post-conviction

      court’s judgment.


[2]   We affirm.


                                                      Issue
            Whether the post-conviction court erred by denying post-conviction
            relief on Dodd’s claim of ineffective assistance of resentencing
            appellate counsel.

                                                      Facts
[3]   This appeal stems from Dodd’s second successive post-conviction proceeding,

      in which he argued, in part, that he had received ineffective assistance of

      resentencing appellate counsel. The facts of Dodd’s crimes and procedural

      history of his case were set forth in the memorandum decision from the direct

      appeal of his resentencing order as follows:


              In December 1997, Dodd burglarized a gas station while trying
              to steal a snowmobile. Officer Brent Croymans responded to the
              burglar alarm. Dodd fired seventeen to eighteen gunshots at
              Officer Croymans, one of which hit his protective vest. The State
      Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-452 | July 13, 2018   Page 2 of 18
        charged Dodd with attempted murder, a class A felony, and
        burglary, a class C felony. A jury found him guilty as charged.

        Dodd was twenty-five years old when he committed those
        offenses. In 1990, he committed two class C felony burglaries.
        Dodd received an aggregate sentence of six years’ [sic] probation
        for the burglaries. In January 1991, Dodd committed another
        class C felony burglary, and his probation was revoked. In June
        1991, he was sentenced for the January burglary to four years in
        the Department of Correction (“DOC”) with two years’ [sic]
        probation. Dodd was released in April 1995, and his probation
        ended in April 1997. In June 1997, Dodd was convicted of
        operating a vehicle while intoxicated, a class A misdemeanor,
        and sentenced to one year of probation. Dodd was still on
        probation when he committed the attempted murder and
        burglary offenses. Dodd also reported using LSD, cocaine,
        marijuana, and alcohol to the presentence investigation report
        (“PSI”) investigator and that he was using drugs on the night of
        the attempted murder.

        At the original sentencing hearing the trial court found five
        aggravating factors: (1) Dodd’s multiple probation revocations;
        (2) Dodd’s history of criminal activity, which included three
        felony convictions for burglary; (3) Dodd used a deadly weapon
        during the burglary and attempted murder of Officer Croymans;
        (4) Dodd was on probation when he committed the present
        offenses; and (5) Dodd committed an act that was “intentionally
        and alarmingly malicious” and “void of any respect for human
        life” when he repeatedly fired in an attempt to kill Officer
        Croymans. Original Sentencing Tr. at 453. The trial court found
        no mitigating factors. Dodd was sentenced to the maximum
        term of fifty years for attempted murder and the maximum term
        of eight years for the burglary. The trial court ordered these two
        sentences to be served consecutively for a total term of fifty-eight
        years.

        On direct appeal, Dodd’s original sentence was upheld. He then
        filed a motion to correct erroneous sentence, which was denied.
Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-452 | July 13, 2018   Page 3 of 18
        This Court granted him permission to file a successive petition
        for post[-]conviction relief. [During the successive post-
        conviction hearing, the parties agreed that Dodd’s Class A felony
        attempted murder conviction and Class C felony burglary
        conviction were part of an episode of criminal conduct for
        sentencing purposes under INDIANA CODE § 35-50-1-2 and that
        his consecutive sentences totaling fifty-eight years were
        statutorily excessive.1] The post[-]conviction court found that the
        consecutive sentences imposed on Dodd exceeded the maximum
        sentence permitted for an episode of criminal conduct and
        remanded for resentencing. See Ind. Code § 35-50-1-2 (defining
        and setting sentencing limits for episode of criminal conduct).
        The trial court ordered a resentencing hearing. The trial court
        also ordered a supplemental PSI, which noted that Dodd, while
        incarcerated, claimed to have completed several programs and
        courses in order to earn his associate’s and bachelor’s degrees.
        The PSI also noted that based on Dodd’s criminal history,
        education, employment, financial situation, and other factors, he
        was classified in the high-risk category to reoffend under the
        Indiana Risk Assessment System.

        [The day before the resentencing hearing, Dodd’s resentencing
        counsel, Thomas Strickler (“Resentencing Attorney”), filed a
        motion for change of judge, contending that court records
        indicated that the current sitting judge, Judge John Marnocha
        (“Judge Marnocha”), had served as the deputy prosecuting
        attorney in Dodd’s original case. At the beginning of the
        resentencing hearing, Judge Marnocha addressed Dodd’s
        motion. The judge explained that he always checked cases that
        originated before January 1999, when he had been a deputy
        prosecuting attorney, to make sure that he had not been involved
        in the underlying case and that he would always recuse himself
        from a case if he had some involvement in the case. Judge



1
 At the time of Dodd’s offenses in 1997, attempted murder and Class C felony burglary were not included as
“crimes of violence” under INDIANA CODE § 35-50-1-2.

Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-452 | July 13, 2018           Page 4 of 18
        Marnocha stated that he had checked Dodd’s case and confirmed
        that he had no personal involvement and had not done any
        paperwork or charged the case. The judge also confirmed that
        Dodd’s original case had been tried by a different prosecuting
        attorney. Dodd and his resentencing counsel then confirmed that
        they were ready to proceed with resentencing.]

        At resentencing, the trial court noted that the original trial judge
        had found the aggravating factors to outweigh the mitigating
        factors, which we later upheld. The trial court used this as a
        “starting point” during its resentencing. Resentencing Tr. at 15.
        The trial court stated:

                 And I don’t want to confuse in resentencing the
                 things that you may have done in the DOC and your
                 conduct there with what the appropriate sentence is
                 here. Because I think sentencing and modification
                 are two separate issues. But in my review of the
                 criminal history, my review of the facts and
                 circumstances of this offense based on the pre-
                 sentence report, my review of the Court of Appeals
                 decision in this case and my sort of incorporating
                 what Judge Brook found, based upon him being the
                 trial judge, it seems to me that I agree with not only
                 Judge Brook and the Court of Appeals, that the
                 sentence should be a fifty-five[-]year sentence.

        Id. at 18-19. The trial court imposed consecutive sentences of
        fifty years for the attempted murder and five years for the
        burglary, for a total of fifty-five years, [which was advisory
        sentence for the next highest sentencing classification (murder)
        and] the maximum sentence for this episode of criminal conduct
        [pursuant to INDIANA CODE § 35-50-1-2]. . . .

Dodd v. State, Cause No. 71A03-1312-CR-475, slip op. 1-2 (Ind. Ct. App. July

29, 2014) (bracketed facts added to complete the procedural history).



Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-452 | July 13, 2018   Page 5 of 18
[4]   Thereafter, Dodd filed an appeal of the trial court’s resentencing order. His

      resentencing appellate counsel, Gary Griner (“Resentencing Appellate

      Attorney”), argued that the trial court had failed to consider several mitigating

      circumstances when resentencing Dodd. Specifically, counsel argued that the

      trial court: (1) should have considered Dodd’s letters of support; (2) was

      mistaken in its belief that it could not consider his positive conduct after his

      original sentencing; and (3) had abused its discretion by not finding Dodd’s

      remorse to be a mitigating factor. Our Court held that the trial court had not

      abused its discretion when declining to consider the letters of support because

      Dodd had not mentioned the letters during the resentencing hearing.

      Additionally, we acknowledged that evidence of Dodd’s conduct after his

      original sentencing could have been considered during resentencing, but we

      held that there was no abuse of discretion because Dodd had admitted that he

      also had been in trouble while in prison. Our Court also acknowledged that,

      during Dodd’s resentencing hearing, Dodd had once mentioned the officer he

      had shot but pointed out that Dodd had mostly focused on himself and his

      family. We gave deference to the trial court, who had been in the best position

      to determine whether Dodd was truly remorseful, and held that the trial court

      had not abused its discretion by rejecting this mitigating factor. Thus, we

      affirmed Dodd’s fifty-five-year aggregate sentence.


[5]   Subsequently, in 2015, Dodd sought and was granted permission to file a

      second successive post-conviction petition. Dodd then filed a successive

      petition for post-conviction relief, alleging, among other claims, that he had


      Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-452 | July 13, 2018   Page 6 of 18
      received ineffective assistance of resentencing counsel and resentencing

      appellate counsel. As to appellate counsel, Dodd argued that Resentencing

      Appellate Attorney was ineffective for failing to raise the following appellate

      arguments: (1) ineffective assistance of resentencing counsel based on counsel’s

      failure to inform the trial court about Dodd’s accomplishments while

      incarcerated; and (2) the resentencing court improperly found aggravating

      circumstances that were not found by a jury as required under Blakely v.

      Washington. Additionally, Dodd raised a freestanding claim that Judge

      Marnocha should have recused himself from Dodd’s resentencing hearing

      because it appeared that he may have been involved in Dodd’s original case as a

      deputy prosecuting attorney.2 Dodd also filed a motion for change of judge,

      seeking to have Judge Marnocha recuse himself from Dodd’s successive post-

      conviction proceeding. Thereafter, Judge Marnocha recused himself from

      Dodd’s proceeding, and a new post-conviction judge was appointed.


[6]   Dodd subsequently filed an amended post-conviction petition, but he did not

      include that in his Appellant’s Appendix. The post-conviction court’s order

      indicates that the amended petition was limited to claims of ineffective

      assistance of resentencing counsel and resentencing appellate counsel. From

      the record before us, Dodd apparently included a claim that resentencing




      2
          In support of his claim, Dodd stated that a discovery motion listed Judge Marnocha’s name on it.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-452 | July 13, 2018               Page 7 of 18
      appellate counsel was ineffective for failing to argue on appeal that Judge

      Marnocha should have recused himself from Dodd’s resentencing.3


[7]   In August 2016, the post-conviction court held two days of evidentiary

      hearings. During the post-conviction hearings, Dodd called Resentencing

      Attorney, Resentencing Appellate Attorney, and Judge Marnocha as witnesses.

      Judge Marnocha testified, consistent with his explanation at Dodd’s

      resentencing hearing, that he did not have any personal involvement in Dodd’s

      underlying case. He acknowledged that a discovery motion had his name listed

      in the first paragraph of the document, but he pointed out that it contained the

      signature of Frank Shaffer (“Shaffer”), the deputy prosecutor who had been

      assigned to the case. He also explained that a secretary must have mistakenly

      put his name on the discovery motion. Additionally, Judge Marnocha testified

      that he recalled Dodd’s case because it involved a police shooting, and he

      remembered the prosecutor at that time telling him that he was going to assign

      the case to Shaffer.


[8]   When Resentencing Appellate Attorney testified, he indicated that he had made

      a strategic decision not to raise appellate issues regarding Blakely and the recusal

      of the resentencing judge. Specifically, Resentencing Appellate Attorney

      testified he did not raise a Blakely issue in Dodd’s resentencing appeal because




      3
       Dodd also raised claims alleging that he had received ineffective assistance of resentencing counsel because
      counsel had failed to take additional action to ensure that Judge Marnocha recused from the resentencing
      hearing and had failed to object to Judge Marnocha’s use of some aggravating circumstances as violating
      Blakely.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-452 | July 13, 2018              Page 8 of 18
      he did not feel that it was a significant issue given Dodd’s criminal history and

      the fact that he was on probation at the time of his offenses, both of which the

      trial court used as aggravators and did not require proof of those to a jury.

      Additionally, Resentencing Appellate Attorney testified that he did not raise an

      appellate challenge to Judge Marnocha’s denial of Dodd’s motion to recuse

      from his resentencing hearing because his review of the resentencing record

      showed that Judge Marnocha had explained that he had not been involved in

      Dodd’s original case.


[9]   During Dodd’s questioning of Resentencing Appellate Attorney, he asked

      counsel various questions about his sentence in relation to INDIANA CODE § 35-

      50-2-1.3(c).4 Dodd suggested that, under that statute, the sentences for his Class

      A felony attempted murder and Class C felony burglary convictions should

      have been advisory sentences. The post-conviction court stopped Dodd’s

      questioning multiple times to have him clarify his argument in regard to his




      4
        INDIANA CODE § 35-50-2-1.3 was added by the legislature in 2005 when it changed the sentencing statutes
      from presumptive terms to advisory terms. Subsections (b) and (c) of this statute provide that:
              (b) Except as provided in subsection (c), a court is not required to use an advisory sentence.
              (c) In imposing:
                    (1) consecutive sentences for felony convictions that are not crimes of violence (as
                    defined in IC [§] 35-50-1-2(a)) arising out of an episode of criminal conduct, in
                    accordance with IC [§] 35-50-1-2;
                    (2) an additional fixed term to an habitual offender under section 8 of this chapter; or
                    (3) an additional fixed term to a repeat sexual offender under section 14 of this
                    chapter;
              a court is required to use the appropriate advisory sentence in imposing a consecutive
              sentence or an additional fixed term. However, the court is not required to use the
              advisory sentence in imposing the sentence for the underlying offense.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-452 | July 13, 2018                  Page 9 of 18
       raised claims of ineffective assistance of resentencing appellate counsel, as he

       had apparently not raised this sentencing issue in his post-conviction petitions.

       The post-conviction court allowed Dodd to submit a written argument after the

       hearing so that he could provide a more detailed explanation of his point. In

       his written argument, Dodd argued that, under INDIANA CODE § 35-50-2-1.3 in

       conjunction with INDIANA CODE § 35-50-1-2, he should have been sentenced to

       advisory terms for both his Class A and Class C felony convictions. He

       asserted that “Judge Marnocha abused his discretion by sentencing Dodd to a

       term above the two consecutive advisory terms for a class ‘A’ and class ‘C’

       felonies” and then alleged that Resentencing Appellate Attorney was ineffective

       for failing to make that argument in his resentencing appeal. (App. Vol. 2 at

       150).


[10]   Thereafter, in February 2017, the post-conviction court entered an order

       denying Dodd’s petition for successive post-conviction relief. The post-

       conviction court found, in relevant part, that Dodd had failed to meet his

       burden of showing that Resentencing Appellate Attorney had rendered

       ineffective assistance of counsel. Specifically, the post-conviction court found

       that Dodd had waived review of his newly raised sentencing argument

       regarding INDIANA CODE § 35-50-2-1.3 because he had not raised it in his initial

       or amended post-conviction petitions and that, waiver notwithstanding,

       Resentencing Appellate Attorney had not rendered ineffective assistance by

       failing to raise that issue on appeal. The post-conviction court also found that

       Resentencing Appellate Attorney had not rendered ineffective assistance by


       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-452 | July 13, 2018   Page 10 of 18
       failing to raise the recusal or Blakely issues on appeal because the resentencing

       record showed that Judge Marnocha had not personally participated in Dodd’s

       original case and because any challenge to Blakely would not have changed the

       outcome of Dodd’s resentencing appeal. The post-conviction court also found

       that the mitigating circumstances issue raised by resentencing appellate counsel

       was a “strategically sound issue” in comparison to the unraised issues. (App.

       Vol. 2 at 165). Dodd now appeals.5


                                                      Decision
[11]   Dodd appeals the post-conviction court’s order denying post-conviction relief

       on only his claim of ineffective assistance of resentencing appellate counsel.

       Our standard of review in post-conviction proceedings is well settled.


                We observe that post-conviction proceedings do not grant a
                petitioner a “super-appeal” but are limited to those issues
                available under the Indiana Post-Conviction Rules. Post-
                conviction proceedings are civil in nature, and petitioners bear
                the burden of proving their grounds for relief by a preponderance
                of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner
                who appeals the denial of PCR faces a rigorous standard of
                review, as the reviewing court may consider only the evidence
                and the reasonable inferences supporting the judgment of the
                post-conviction court. The appellate court must accept the post-
                conviction court’s findings of fact and may reverse only if the
                findings are clearly erroneous. If a PCR petitioner was denied
                relief, he or she must show that the evidence as a whole leads



       5
         The post-conviction court also denied Dodd relief on his ineffective assistance of resentencing counsel
       claims relating to recusal and Blakely. Dodd does not appeal the post-conviction court’s denial of these
       ineffective assistance of resentencing counsel claims.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-452 | July 13, 2018              Page 11 of 18
                 unerringly and unmistakably to an opposite conclusion than that
                 reached by the post-conviction court.

       Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal case

       citations omitted), trans. denied. Additionally, “[w]e will not reweigh the

       evidence or judge the credibility of the witnesses; we examine only the

       probative evidence and reasonable inferences that support the decision of the

       post-conviction court.” Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007),

       reh’g denied, cert. denied.


[12]   At the outset, we note that Dodd has chosen to proceed pro se. It is well settled

       that pro se litigants are held to the same legal standards as licensed attorneys.

       Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. Thus,

       pro se litigants are bound to follow the established rules of procedure and must

       be prepared to accept the consequences of their failure to do so. Id. “We will

       not become a party’s advocate, nor will we address arguments that are

       inappropriate, improperly expressed, or too poorly developed to be

       understood.” Barrett v. State, 837 N.E.2d 1022, 1030 (Ind. Ct. App. 2005), trans.

       denied.


[13]   Turning to Dodd’s post-conviction claims regarding ineffective assistance of

       resentencing appellate counsel, we recognize that we apply the same standard

       of review to a claim of ineffective assistance of appellate counsel as we do to an

       ineffective assistance of trial counsel claim. Garrett v. State, 992 N.E.2d 710, 724

       (Ind. 2013). Thus, a petitioner alleging a claim of ineffective assistance of

       appellate counsel is required to show that: (1) counsel’s performance was

       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-452 | July 13, 2018   Page 12 of 18
       deficient by falling below an objective standard of reasonableness based on

       prevailing professional norms; and (2) counsel’s performance prejudiced the

       defendant such that “‘there is a reasonable probability that, but for counsel’s

       unprofessional errors, the result of the proceeding would have been different.’”

       Davidson v. State, 763 N.E.2d 441, 444 (Ind. 2002) (quoting Strickland v.

       Washington, 466 U.S. 668, 687 (1984), reh’g denied), reh’g denied, cert. denied. “A

       reasonable probability arises when there is a ‘probability sufficient to undermine

       confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.

       2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two

       prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.

       Ct. App. 2012) (citing French v. State, 778 N.E.2d 816, 824 (Ind. 2002)), trans.

       denied.


[14]   Ineffective assistance of appellate counsel claims “‘generally fall into three basic

       categories: (1) denial of access to an appeal, (2) waiver of issues, [which

       includes a failure to raise issues on appeal,] and (3) failure to present issues

       well.’” Garrett v. State, 992 N.E.2d 710, 724 (Ind. 2013) (quoting Reed v. State,

       856 N.E.2d 1189, 1195 (Ind. 2006)). Dodd’s ineffective assistance of

       resentencing appellate counsel claims are based upon category (2), waiver of

       issues. Specifically, Dodd argues that his resentencing appellate counsel

       rendered ineffective assistance because he failed to raise the following appellate

       issues: (1) a challenge to his sentence received at resentencing based on Blakely

       and INDIANA CODE § 35-50-2-1.3; and (2) a challenge to the denial of Dodd’s

       motion to have Judge Marnocha recuse from his resentencing hearing.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-452 | July 13, 2018   Page 13 of 18
[15]   To evaluate the performance prong in a waiver-of-issues appellate counsel

       claim, our Court applies the following test: “(1) whether the unraised issues are

       significant and obvious from the face of the record[;] and (2) whether the

       unraised issues are ‘clearly stronger’ than the raised issues.” Garrett, 992

       N.E.2d at 724 (quoting Timberlake v. State, 753 N.E.2d 591, 605-06 (Ind. 2001),

       reh’g denied, cert. denied). The prejudice prong for the waiver-of-issues category

       of an ineffective assistance of appellate counsel claim requires an examination

       of whether the issues that appellate counsel failed to raise “‘would have been

       clearly more likely to result in reversal or an order for a new trial.’” Garrett, 992

       N.E.2d at 724 (quoting Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1997), reh’g

       denied, cert. denied).


[16]   “Ineffective assistance is very rarely found in cases where a defendant asserts

       that appellate counsel failed to raise an issue on . . . appeal” because “the

       decision of what issues to raise is one of the most important strategic decisions

       to be made by appellate counsel.” Reed, 856 N.E.2d at 1196. “‘Accordingly,

       when assessing these types of ineffectiveness claims, reviewing courts should be

       particularly deferential to counsel’s strategic decision to exclude certain issues

       in favor of others, unless such a decision was unquestionably unreasonable.’”

       Conner v. State, 711 N.E.2d 1238, 1252 (Ind. 1999), reh’g denied, cert. denied.

       (quoting Bieghler, 690 N.E.2d at 194). To show that appellate counsel was

       ineffective for failing to raise an issue on appeal, a petitioner “‘must overcome

       the strongest presumption of adequate assistance, and judicial scrutiny is highly




       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-452 | July 13, 2018   Page 14 of 18
       deferential.’” Garrett, 992 N.E.2d at 724 (quoting Ben-Yisrayl v. State, 738

       N.E.2d 253, 260-61 (Ind. 2000), reh’g denied, cert. denied).


[17]   Here, we need not review Dodd’s argument that his resentencing appellate

       counsel rendered ineffective assistance by failing to argue that his fifty-five-year

       sentence imposed during resentencing was contrary to INDIANA CODE § 35-50-

       2-1.3 because, as noted by the post-conviction court, Dodd did not present this

       claim in his initial or amended post-conviction petitions. “Issues not raised in

       the petition for post-conviction relief may not be raised for the first time on

       post-conviction appeal.” Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001)

       (citing Ind. Post–Conviction Rule 1(8) (“All grounds for relief available to a

       petitioner under this rule must be raised in his original petition.”)), reh’g denied,

       cert. denied. Because Dodd did not raise this ineffective assistance of

       resentencing appellate counsel claim in his post-conviction petitions, he has

       waived any such argument. See, e.g., Koons v. State, 771 N.E.2d 685, 691 (Ind.

       Ct. App. 2002) (holding that issues not raised in the petition for post-conviction

       relief may not be raised for the first time on the post-conviction appeal; the

       failure to raise an argument in the petition waives the right to raise the

       argument on appeal), trans. denied. 6




       6
         Waiver notwithstanding, Dodd’s claim is without merit because he has failed to meet his burden of showing
       that counsel rendered deficient performance or that he was prejudiced by counsel’s failure to pursue the issue
       in his resentencing appeal. See Robertson v. State, 871 N.E.2d 280, 285-86 (Ind. 2009) (explaining the
       application of INDIANA CODE § 35-50-2-1.3(c) and revealing the lack of merit in Dodd’s argument that the
       statute required the resentencing court to impose an advisory term for each of his convictions).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-452 | July 13, 2018             Page 15 of 18
[18]   Turning to Dodd’s remaining ineffective assistance of appellate counsel claims,

       we conclude that he has failed to meet his burden of showing the deficient

       performance or prejudice necessary to prove that Resentencing Appellate

       Attorney rendered ineffective assistance of counsel by failing to raise an

       appellate challenge to recusal and Blakely. Resentencing Appellate Attorney’s

       testimony during the post-conviction hearing clearly shows that he made a

       strategic decision to exclude the recusal and Blakely issues in favor of the

       mitigating circumstances issue that he had raised in the resentencing appeal.

       Resentencing Appellate Attorney testified he did not raise a Blakely issue in

       Dodd’s resentencing appeal because he did not feel that it was a significant

       issue given Dodd’s criminal history and the fact that he was on probation at the

       time of his offenses, both of which the trial court used as aggravators and did

       not require proof of those to a jury. Additionally, Resentencing Appellate

       Attorney testified that, despite Judge Marnocha’s name appearing on some

       court records, he did not raise an appellate challenge to Judge Marnocha’s

       denial of Dodd’s motion to recuse from the resentencing hearing because

       counsel’s review of the resentencing record showed that Judge Marnocha had

       explained that he had not been involved in Dodd’s original case. Additionally,

       the post-conviction court found that the mitigating circumstances issue was a

       strategically sound issue and was more likely to have resulted in a new

       resentencing had it succeeded.


[19]   Dodd, however, has not shown that these unraised issues were significant and

       obvious from the face of the record and that they were clearly stronger than the


       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-452 | July 13, 2018   Page 16 of 18
       raised issue, which is required to show that appellate counsel rendered deficient

       performance on a waiver-of-issue claim. See Garrett, 992 N.E.2d at 724. Nor

       has Dodd shown the requisite prejudice that these unraised issues would have

       been clearly more likely to result in reversal than the issue raised on appeal. See

       id. Instead, he sets forth arguments regarding these issues as if they are

       freestanding claims of error and then makes a conclusory assertion that the

       outcome of his resentencing appeal would have been different had they been

       raised in his resentencing appeal. Thus, Dodd has failed to show that the post-

       conviction court erred by finding that resentencing appellate counsel’s

       performance was not deficient. See Conner, 711 N.E.2d at 1252 (explaining that

       when assessing appellate ineffectiveness claims based on a waiver of issues,

       reviewing courts should be particularly deferential to counsel’s strategic

       decision to exclude certain issues in favor of others and that such ineffectiveness

       claims are “very rarely found”). Because Dodd has failed to show that the

       evidence as a whole leads unerringly and unmistakably to an opposite

       conclusion than that reached by the post-conviction court, we affirm the post-

       conviction court’s denial of post-conviction relief on Dodd’s ineffective

       assistance of resentencing appellate counsel claims.


[20]   Affirmed.7




       7
         Dodd also argues that the post-conviction court erroneously relied upon Williams v. Pennsylvania, 136 S.Ct.
       1899 (2016) when deciding whether resentencing and resentencing appellate counsel rendered deficient
       performance in regard to the recusal issue, contending that the case was not in effect at the time of his 2013
       resentencing. Dodd, however, has waived any such argument based on the doctrine of invited error. “This
       doctrine—based on the legal principle of estoppel—forbids a party from taking ‘advantage of an error that

       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-452 | July 13, 2018               Page 17 of 18
Kirsch, J., and Bailey, J., concur.




[]he commits, invites, or which is the natural consequence of her own neglect or misconduct’” and it “may
apply to a variety of errors the party requested of the trial court[.]” Durden v. State, -- N.E.3d --, 2018 WL
3040338 at *3 (Ind. June 20, 2018) (quoting Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005)). During the
post-conviction hearing, when Dodd was discussing the recusal issue, he referred the post-conviction court to
Williams and stated that he wanted “to enter [it] into the record.” (Tr. Vol. 2 at 35). Because Dodd invited
the error of which he now complains, he has waived any argument regarding the alleged error. See Durden, --
N.E.3d --, 2018 WL 3040338 at *8 (applying the invited error doctrine to structural error). Moreover, the
post-conviction court did not rely solely upon the Williams case to decide the issue of deficient performance;
it also relied upon a case that was in effect at the time of his resentencing—Patterson v. State, 926 N.E.2d 90
(Ind. Ct. App. 2010)—when deciding that there was no deficient performance because the record and Judge
Marnocha’s testimony showed that he had not participated in Dodd’s original case.

Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-452 | July 13, 2018              Page 18 of 18
