Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                                            Jul 30 2014, 9:56 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                                     ATTORNEYS FOR APPELLEE:

CARA SCHAEFER WIENEKE                                       GREGORY F. ZOELLER
Wieneke Law Office, LLC                                     Attorney General of Indiana
Plainfield, Indiana
                                                            JAMES B. MARTIN
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

ERIC BARNETT,                                       )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A02-1311-PC-989
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Lisa F. Borges, Judge
                             Cause No. 49G04-0002-PC-24481


                                           July 30, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                      Case Summary

       Eric Barnett appeals the denial of his petition for post-conviction relief.

       We affirm.

                                            Issue

       The sole issue for our review is whether the post-conviction court erred in denying

Barnett’s petition.

                              Facts and Procedural History

        We summarized the facts as follows in Barnett’s direct appeal:

              During January 2000, [fifty-seven-year-old] Herb Valinetz (“Valinetz”),
       the owner of Office Pride, a janitorial services franchise, discharged Barnett
       from his employment. Barnett and two accomplices devised a plan to rob
       Valinetz in one of the office buildings where he cleaned. On January 10, 2000,
       Barnett and his accomplices hid in Geist Medical Plaza and overpowered
       Valinetz upon his arrival. The men put a bag over Valinetz’s head and tied his
       hands and legs together. They took Valinetz’s debit card and beat him until he
       disclosed the personal identification number necessary to obtain cash with the
       card. The men also took cash, cellular telephones, golf clubs and a boom box
       from the offices in the building. They used the debit card to make four cash
       withdrawals at automatic teller machines.
              After the beating, Valinetz crawled down a hallway to another office
       and summoned assistance. Valinetz was taken to a hospital and treated for the
       injuries he sustained in the beating, including twenty to twenty-five external
       bruises, multiple fractured ribs and multiple internal contusions. He was
       released the following day. Valinetz remained at home in bed for two days,
       but on the third was readmitted to the hospital where he died.

Barnett v. State, No. 49A04-0107-CR-326 (Ind. Ct. App. Feb. 25, 2002), trans. denied.

       The State charged Barnett with murder, felony murder, robbery, confinement, two

counts of burglary, and three counts of theft. At a joint bench trial for Barnett and his co-

defendant, State’s witness forensic pathologist Dr. Michael Clark, who supervised Valinetz’s


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autopsy, testified that Valinetz died as a result of “multiple blunt force injuries.” Trial Tr. p.

227. During cross-examination, Dr. Clark explained that although Valinetz had severe

coronary artery blockage, “if [he] had not been assaulted, he would not have died.” Trial Tr.

p. 233.

          Defense witness forensic pathologist Dr. John Heidingsfelder testified that after

reviewing medical records, photographs of the victim, and the autopsy report, it was “very

clear to [him] that the immediate cause of death [was] that [Valinetz] died of a heart attack.”

Trial Tr. p. 410. Dr. Heidingsfelder further testified that the injuries Valinetz sustained were

not life-threatening. However, Dr. Heidingsfelder also testified that Valinetz’s heart attack

was more likely than not caused by the blunt force trauma, and that he agreed with Dr. Clark

that the manner of death was a homicide.

          After both parties rested at trial, the trial court asked them if they would prefer to have

oral closing arguments or to submit legal briefs. Counsel for Barnett’s co-defendant

responded that he would like to present argument “as to the conflicting pathologists . . . the

primary issue in this case.” Trial Tr. pp. 552-53. The trial court set oral arguments for the

following morning and offered to give counsel additional time to submit legal briefs.

          Following oral arguments, the trial court asked the parties if they would like to submit

legal briefs. Counsel stated that they would. Attorneys for the co-defendants filed a joint

post-trial memorandum wherein they argued that Valinetz’s death was not caused by the

defendants’ acts. They attached to the memorandum a chapter from Spitz and Fisher’s

Medicolegal Investigation of Death, which Barnett describes as “a treatise on determining the


                                                  3
cause of death.” Appellant’s Br. p. 7. The arguments in the memorandum were based on and

cited to the evidence presented at trial. The State filed a memorandum in support of

conviction on charge of murder wherein it argued that the blunt force trauma the co-

defendants inflicted on Valinetz was the immediate cause of his death. The arguments in its

memorandum were also supported by the evidence presented at trial.

       On June 22, 2001, the trial court acquitted Barnett of murder, convicted him of all

other charges, and sentenced him to an aggregate sentence of seventy-nine years

imprisonment. On direct appeal, this Court affirmed Barnett’s felony murder conviction,

vacated his robbery conviction on double jeopardy grounds, and revised his sentences for

burglary and theft, resulting in an aggregate sentence of seventy-three and one-half years. Id.

       In October 2012, Barnett filed a petition for post-conviction relief wherein he argued

that his trial counsel was ineffective. The post-conviction court held a hearing on the petition

in December 2012, and denied it in October 2013. Barnett appeals the denial of his petition.

                                  Discussion and Decision

       Defendants who have exhausted the direct appeal process may challenge the

correctness of their convictions and sentences by filing a post-conviction petition. Stevens v.

State, 770 N.E.2d 739, 746 (Ind. 2002), cert. denied, 540 U.S. 830 (2003). A petitioner who

has been denied post-conviction relief faces a rigorous standard of review on appeal. Dewitt

v. State, 755 N.E.2d 167, 170 (Ind. 2001). The post-conviction court’s denial of relief will

be affirmed unless the petitioner shows that the evidence leads unerringly and unmistakably

to a decision opposite that reached by the post-conviction court. Id. We consider only the


                                               4
probative evidence and reasonable inferences therefrom that support the post-conviction

court’s determination, and we will not reweigh the evidence or judge the credibility of

witnesses. Bigler v. State, 732 N.E.2d 191, 194 (Ind. Ct. App. 2000), trans. denied.

         To establish ineffective assistance of counsel, a petitioner must first demonstrate that

counsel’s performance was deficient. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). This

part of the test requires the petitioner to demonstrate that counsel’s representation fell below

an objective standard of reasonableness, and that the counsel’s errors were so serious that

they resulted in a denial of the right to counsel guaranteed under the Sixth Amendment to the

United States Constitution. Id. There is a strong presumption that counsel rendered adequate

assistance and made all significant decisions in the exercise of reasonable professional

judgment. Stevens, 770 N.E.2d at 746. This presumption can be rebutted only with strong

and convincing evidence. Elisea v. State, 777 N.E.2d 46, 50 (Ind. Ct. App. 2002).

         The petitioner must also show that counsel’s deficient performance resulted in

prejudice to the defense. Smith, 765 N.E.2d at 585. Specifically, the petitioner must show

that but for counsel’s unprofessional errors, there is a reasonable probability that the results

of the proceeding would have been different. Id. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Id. Further, to prevail on a claim of

ineffective assistance of counsel due to the failure to object, the petitioner must show an

objection would have been sustained if made. Overstreet v. State, 877 N.E.2d 144, 155 (Ind.

2007).




                                                5
       Here, Barnett argues that “[h]ad trial counsel objected to the trial court’s allowance of

additional information after the close of the evidence, the objection would have been

sustained.” Appellant’s Br. p. 6. In support of his claim, he directs us to Owens v. State, 750

N.E.2d 403 (Ind. Ct. App. 2001). There, after Owens and the State rested, the trial court was

still not convinced beyond a reasonable doubt that Owens was innocent. The trial court

therefore questioned witnesses and ordered the parties to conduct additional discovery. Upon

hearing the additional evidence, the trial court convicted Owens of burglary, two counts of

robbery, and two counts of criminal confinement. This court affirmed his convictions on

direct appeal.

       Owens subsequently filed a petition for post-conviction relief, which the post-

conviction court denied. On appeal, Owens argued that his trial counsel was ineffective

because she failed to object to the trial court questioning witnesses and ordering the parties to

conduct additional discovery after both parties had rested. Through its questioning, the trial

court allowed the introduction of inadmissible hearsay. In addition, the evidence that was

introduced impeached Owens’ testimony. This Court found that by requiring the parties to

engage in additional discovery and return two weeks later to report their findings, the trial

court overstepped its bounds as a neutral arbiter. Id. at 410. Accordingly, we concluded that

trial counsel was ineffective for failing to object to the trial court’s actions. Id.

       However, the facts before us are distinguishable from those in Owens. Here, the trial

court did not intervene in the proceedings or require the parties to engage in additional

discovery. Rather, the trial court simply offered the parties the opportunity to submit post-


                                               6
trial briefs. The arguments in the post-trial briefs were based on and supported by the

evidence admitted at trial. There was no additional discovery in this case, and the trial court

did not overstep its bounds as a neutral arbiter. Barnett has failed to show that an objection

would have been sustained if made, and that the evidence leads unerringly and unmistakably

to a decision opposite that reached by the post-conviction court.

                                         Conclusion

       The post-conviction court did not err in denying Barnett’s petition.

       Affirmed.

KIRSCH, J., and MAY, J., concur.




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