                                                                                 FILED
MEMORANDUM DECISION                                                         May 13 2016, 6:43 am


Pursuant to Ind. Appellate Rule 65(D),                                           CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
this Memorandum Decision shall not be                                             and Tax Court

regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana

Victoria Christ                                          J.T. Whitehead
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Christopher Swartz,                                      May 13, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A05-1512-PC-2131
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey L. Marchal,
Appellee-Respondent.                                     Judge Pro Tempore
                                                         Trial Court Cause No.
                                                         49G06-0606-PC-116078



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 49A05-1512-PC-2131 | May 13, 2016             Page 1 of 21
[1]   In June of 2006, Appellee-Respondent the State of Indiana (the “State”)

      charged Appellant-Petitioner Christopher Swartz with murder. Swartz was

      found guilty following a three-day jury trial. On June 14, 2007, the trial court

      sentenced Swartz to a sixty-year term of imprisonment. Swartz appealed,

      challenging both his conviction and the appropriateness of his sentence. On

      February 25, 2008, we affirmed Swartz’s conviction and sentence.


[2]   Swartz filed a pro se petition for post-conviction relief (“PCR”) in June of 2008.

      Swartz, by counsel, subsequently filed an amended PCR petition in February of

      2015.     On November 12, 2015, the post-conviction court issued an order

      denying Swartz’s petition. Swartz appealed, arguing that the post-conviction

      court erroneously found that he did not receive ineffective assistance of trial or

      appellate counsel. Concluding that the post-conviction court did not err in

      determining that Swartz failed to prove that he suffered ineffective assistance of

      either trial or appellate counsel, we affirm.



                            Facts and Procedural History
[3]   Our memorandum decision in Swartz’s direct appeal, which was handed down

      on February 25, 2008, instructs us to the underlying facts and procedural

      history leading to this post-conviction appeal.


              Seventeen-year-old José Hernandez was walking toward his
              aunt’s house on the southeast side of Indianapolis at
              approximately 1:30 a.m. on June 24, 2006. Ken Julian and
              Tanya Bright were sitting on their front porch talking to Joe
              Culvahouse when they observed three white men approach a

      Court of Appeals of Indiana | Memorandum Decision 49A05-1512-PC-2131 | May 13, 2016   Page 2 of 21
        neighboring convenience store. One of the men, Matt Miller,
        entered the store and purchased beer. Swartz and Wilburn
        Barnard remained outside. Miller returned with the beer and the
        three men began walking on the sidewalk.

        Thirty seconds later, Hernandez began crossing the street when
        Swartz, Barnard, and Miller began heckling him and shouting
        racial epithets. Hernandez shrugged his shoulders. At that point,
        Swartz walked away from Miller and Barnard and began
        taunting Hernandez. Eventually, Hernandez removed his shirt
        and approached Swartz. Swartz swung his right fist at
        Hernandez and Hernandez ducked. Swartz told Hernandez that
        he was going to “f* * * [him] up.” Tr. p. 55, 60. Swartz and
        Hernandez began sparring, although neither landed punches.
        Miller and Barnard egged Swartz on by telling him to “f* * * him
        up.” Id. at 115. Swartz eventually lifted his shirt and asked
        Hernandez, “What you got?” Id. at 122. Hernandez looked
        down, saw a knife, and jumped back. At that point, Swartz
        lunged forward and stabbed Hernandez in the chest with the
        knife. Hernandez staggered away and Swartz turned and ran.
        Hernandez stumbled to his aunt’s front porch, where he
        collapsed. He later died at Wishard Hospital from a stab wound
        that punctured his lung and heart.

        The State charged Swartz with murder on June 27, 2006. Before
        trial, Swartz filed two motions in limine seeking to exclude (1) a
        portion of a 911 audiotape in which the caller referred to Swartz
        as a “wannabe white boy” and (2) photographs of Swartz’s upper
        torso depicting his tattoos “South,” “Side,” and “Crazy White
        Boy.” Appellant’s App. p. 111, 114. The trial court denied both
        motions after a hearing.

        A three-day jury trial began on May 7, 2007. Swartz renewed his
        pretrial objections when the photographs and the objectionable
        portion of the 911 audiotape were admitted into evidence at trial.
        The jury ultimately found Swartz guilty as charged. The trial


Court of Appeals of Indiana | Memorandum Decision 49A05-1512-PC-2131 | May 13, 2016   Page 3 of 21
              court held a sentencing hearing on June 14, 2007, and sentenced
              Swartz to sixty years imprisonment.


      Swartz v. State, 49A04-0707-CR-393, * 1 (Ind. Ct. App. February 25, 2008). On

      appeal, we affirmed Swartz’s conviction and sentence. Id. at 6-7.


[4]   On June 2, 2008, Swartz filed a pro-se PCR petition. In this petition, Swartz

      claimed that he received ineffective assistance from both his trial and appellate

      counsel. Swartz, by counsel, filed an amended PCR petition on February 11,

      2015. In this amended petition, Swartz renewed his claim that he received

      ineffective assistance from both his trial and appellate counsel. On November

      12, 2015, the post-conviction court issued an order denying Swartz’s petition.

      This appeal follows.



                                Discussion and Decision
[5]   Post-conviction procedures do not afford the petitioner with a super-appeal.

      Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a

      narrow remedy for subsequent collateral challenges to convictions, challenges

      which must be based on grounds enumerated in the post-conviction rules. Id.

      A petitioner who has been denied post-conviction relief appeals from a negative

      judgment and as a result, faces a rigorous standard of review on appeal. Dewitt

      v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942

      (Ind. Ct. App. 1999), trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1512-PC-2131 | May 13, 2016   Page 4 of 21
[6]   Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,

      745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his

      claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);

      Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition,

      a petitioner must convince this court that the evidence, taken as a whole, “leads

      unmistakably to a conclusion opposite that reached by the post-conviction

      court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without

      conflict and leads to but one conclusion, and the post-conviction court has

      reached the opposite conclusion, that its decision will be disturbed as contrary

      to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied.

      The post-conviction court is the sole judge of the weight of the evidence and the

      credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

      We therefore accept the post-conviction court’s findings of fact unless they are

      clearly erroneous but give no deference to its conclusions of law. Id.


                         I. Ineffective Assistance of Counsel
[7]   The right to effective counsel is rooted in the Sixth Amendment to the United

      States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The

      Sixth Amendment recognizes the right to the assistance of counsel because it

      envisions counsel’s playing a role that is critical to the ability of the adversarial

      system to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S.

      668, 685 (1984)). “The benchmark for judging any claim of ineffectiveness

      must be whether counsel’s conduct so undermined the proper function of the



      Court of Appeals of Indiana | Memorandum Decision 49A05-1512-PC-2131 | May 13, 2016   Page 5 of 21
      adversarial process that the trial court cannot be relied on as having produced a

      just result.” Strickland, 466 U.S. at 686.


[8]   A successful claim for ineffective assistance of counsel must satisfy two

      components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first

      prong, the petitioner must establish that counsel’s performance was deficient by

      demonstrating that counsel’s representation “fell below an objective standard of

      reasonableness, committing errors so serious that the defendant did not have

      the ‘counsel’ guaranteed by the Sixth Amendment.” Id. We recognize that

      even the finest, most experienced criminal defense attorneys may not agree on

      the ideal strategy or most effective way to represent a client, and therefore,

      under this prong, we will assume that counsel performed adequately and defer

      to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585

      (Ind. 2002). Isolated mistakes, poor strategy, inexperience, and instances of

      bad judgment do not necessarily render representation ineffective. Id.


[9]   Under the second prong, the petitioner must show that the deficient

      performance resulted in prejudice. Reed, 866 N.E.2d at 769. Again, a petitioner

      may show prejudice by demonstrating that there is “a reasonable probability

      (i.e. a probability sufficient to undermine confidence in the outcome) that, but

      for counsel’s errors, the result of the proceeding would have been different.” Id.

      A petitioner’s failure to satisfy either prong will cause the ineffective assistance

      of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently,

      “[a]lthough the two parts of the Strickland test are separate inquires, a claim



      Court of Appeals of Indiana | Memorandum Decision 49A05-1512-PC-2131 | May 13, 2016   Page 6 of 21
       may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031

       (Ind. 2006) (citing Williams, 706 N.E.2d at 154).


                       A. Ineffective Assistance of Trial Counsel
[10]   Swartz argues that his trial counsel provided ineffective assistance by failing to

       object to the tendered jury instructions relating to voluntary manslaughter and

       by failing to impeach a witness. For its part, the State argues that Swartz’s trial

       counsel did not provide ineffective assistance in either regard.


                                             1. Jury Instructions

[11]   With respect to the connection between the crimes of murder and voluntary

       manslaughter, the Indiana Supreme Court has held that:


               [t]hough we have held that voluntary manslaughter is a lesser-
               included offense of murder, voluntary manslaughter under the
               Indiana statute is not a typical example of a lesser-included
               offense. If a conviction for a crime requires proof of a list of
               elements, conviction for a lesser-included offense of that crime
               usually requires proof of some, but not all, of the elements of the
               first crime. Under the traditional formulation of the test for a
               lesser-included offense, such a defendant charged with a crime
               and with a lesser-included offense of that crime who is convicted
               of the first crime would also by definition have to have
               committed the lesser-included offense.

               In the case of voluntary manslaughter, however, sudden heat is a
               mitigating factor, not an element, that the State must prove in
               addition to the elements of murder. Though counterintuitive, it
               is logical: if a mitigating factor is present, the offense is certainly
               lesser than, if not included in, the greater offense. Most
               importantly, it has long been held in Indiana that a conviction for

       Court of Appeals of Indiana | Memorandum Decision 49A05-1512-PC-2131 | May 13, 2016   Page 7 of 21
               voluntary manslaughter is an acquittal of the greater offense of
               murder.

               Thus, even though under Indiana law voluntary manslaughter is
               a lesser-included offense of murder, a conviction for murder does
               not mean that a defendant could also have been convicted of
               voluntary manslaughter. Sudden heat must be separately proved.


       Watts v. State, 885 N.E.2d 1228, 1232 (Ind. 2008) (footnote and internal

       citations omitted). The Indiana Supreme Court has further held:


               Sudden heat is a mitigating factor in conduct that would
               otherwise be murder. It is not an element of voluntary
               manslaughter. When the presence of sudden heat is introduced
               into the case, the State carries the burden of negating the
               presence of sudden heat beyond a reasonable doubt. The State
               may meet the burden by rebutting the defendant’s evidence or by
               affirmatively showing in its case-in-chief the defendant was not
               acting in sudden heat when the killing occurred.


       Estes v. State, 451 N.E.2d 313, 314 (Ind. 1983) (internal citation omitted).

       “Whether or not defendant acted under sudden heat is a question for the jury to

       resolve.” Id. (citing Dunn v. State, 439 N.E.2d 165, 168 (Ind. 1982)).


[12]   In the instant appeal, Swartz alleges that his trial counsel provided ineffective

       assistance by failing to object to the tendered jury instructions regarding the

       State’s burden of disproving sudden heat. Swartz specifically argues that he

       was prejudiced by his trial counsel’s failure to object to the tendered jury

       instructions because the tendered instructions failed to instruct the jury that

       once the issue of sudden heat was raised, the State bore the burden of


       Court of Appeals of Indiana | Memorandum Decision 49A05-1512-PC-2131 | May 13, 2016   Page 8 of 21
       disproving sudden heat before the jury could find Swartz guilty of murder. For

       its part, the State argues that the tendered jury instructions were a correct

       statement of the law which properly instructed the jury as to the State’s burden

       of proof.


[13]   In order to review the propriety of the representation provided by Swartz’s trial

       counsel in this regard, we must review the relevant tendered final jury

       instructions, which provide as follows:


                                           Instruction Number 3

               Under the law of this State, a person charged with a crime is
               presumed to be innocent. To overcome the presumption of
               innocence, the State must prove the defendant guilty of each
               element of the crime charged, beyond a reasonable doubt.

               The defendant was not required to present any evidence to prove
               his innocence or to prove or explain anything.


                                                      ****

                                           Instruction Number 6

               The law permits the jury to determine whether the defendant is
               guilty of certain charges which are not explicitly included in the
               Information. These additional charges which the jury may
               consider are called lesser included offenses. They are called
               lesser included offenses because they are offenses which are very
               similar to the charged offense. Usually the only difference
               between the charged offense and the lesser included offense is
               that the charged offense contains an element that is not required
               to prove the lesser included offense.

               If you find the defendant not guilty of the charged offense, then

       Court of Appeals of Indiana | Memorandum Decision 49A05-1512-PC-2131 | May 13, 2016   Page 9 of 21
        you should consider whether the defendant is guilty of the lesser
        included offenses. As I have already instructed you, the
        defendant in this case is charged in Count I with Murder, a
        felony. The crimes of Voluntary Manslaughter, a Class A felony,
        Voluntary Manslaughter, a Class B felony, Involuntary
        Manslaughter, a Class C felony and Reckless Homicide, a Class
        C felony, are lesser included offenses of the crime of Murder, a
        felony. In a minute I will instruct you concerning the elements
        which the State is required to prove beyond a reasonable doubt
        before you may find the defendant guilty of any of the lesser
        included offenses.

        All of the instructions which I have given you and will give you,
        also apply to your deliberations concerning the lesser included
        offenses. The State must prove each element of the lesser
        included offenses beyond a reasonable doubt before you may
        convict the defendant of any of the lesser included offenses. You
        must not look upon the lesser included offenses as an opportunity
        compromise difference among yourselves.

                                    Instruction Number 7

        The crime of murder is defined by statute as follows:

        A person who knowingly kills another human being, commits
        murder, a felony.

        To convict the Defendant, the state must have proven each of the
        following elements:

                1.       the defendant, Christopher Swartz,
                2.       did knowingly,
                3.       kill,
                4.       another human being, namely: Jose Hernandez.

        If the State failed to prove each of these elements beyond a
        reasonable doubt, you must find the Defendant not guilty of
        Murder, a felony, as charged in Count I.
Court of Appeals of Indiana | Memorandum Decision 49A05-1512-PC-2131 | May 13, 2016   Page 10 of 21
        If the State did prove each of these elements beyond a reasonable
        doubt, you should find the Defendant guilty of Murder, a felony,
        as charged in Count I.

                                               ****

                                    Instruction Number 9

        The crime of murder is defined by the statute as follows:

        A person who knowingly or intentionally kills another human
        being, commits murder, a felony.

        An included offense of the charge in this case is the crime of
        voluntary manslaughter which is defined by the statute as
        follows:

        A person who knowingly or intentionally kills another human
        being while acting under sudden heat commits voluntary
        manslaughter, a Class B felony. However, the offense is a class
        A felony if it is committed by means of a deadly weapon.

        Sudden heat is a mitigating factor that reduces what otherwise
        would be murder to voluntary manslaughter. The State has the
        burden of proving beyond a reasonable doubt that the Defendant
        was not acting under sudden heat.

        Before you may convict the Defendant of voluntary
        manslaughter, the State must have proven each of the following
        elements:

                1.       the Defendant, Christopher Swartz;
                2.       knowingly,
                3.       killed,
                4.       another human being, namely: Jose Hernandez,
                5.       and the Defendant was not acting under sudden
        heat,
Court of Appeals of Indiana | Memorandum Decision 49A05-1512-PC-2131 | May 13, 2016   Page 11 of 21
             6.          and the Defendant killed by means of a deadly
        weapon.

        If the State failed to prove each of the elements 1-4 beyond a
        reasonable doubt, you must find the Defendant not guilty of
        murder as charged in Count I.

        If the State did prove each of the elements 1-4 and element 6
        beyond a reasonable doubt, but the State failed to prove beyond a
        reasonable doubt element 5, you should find the Defendant
        guilty of voluntary manslaughter, a Class A felony, a lesser
        included offense of Count I.

        If the State did prove each of elements 1-4 beyond a reasonable
        doubt, but the State failed to prove beyond a reasonable doubt
        elements 5 and 6, you may find the Defendant guilty of voluntary
        manslaughter, a Class B felony, a lesser included offense of
        Count I.

        If the State did prove each of elements 1-4 beyond a reasonable
        doubt, but the State failed to prove beyond a reasonable doubt
        element 5, you may find the Defendant guilty of voluntary
        manslaughter, a Class B felony, a lesser included offense of
        Count I.

                                   Instruction Number 10

        The term “sudden heat” means an excited mind. It is a condition
        that may be created by strong emotion such as fear, anger, rage,
        sudden resentment, or jealousy. It may be strong enough to
        obscure the reason of an ordinary person and prevent
        deliberation and meditation. It can render a person incapable of
        rational thought.


Appellant’s Direct Appeal App. pp. 162, 165-66, 168-70.



Court of Appeals of Indiana | Memorandum Decision 49A05-1512-PC-2131 | May 13, 2016   Page 12 of 21
[14]   Instruction Number 3 clearly indicates that the State bore the burden of proving

       each element beyond a reasonable doubt and that Swartz was under no

       obligation to “prove or explain anything.” Appellant’s Direct Appeal App. p.

       162. Instruction Number 9 indicates that if the State failed to prove that Swartz

       was not acting under sudden heat, then the jury should find Swartz not guilty of

       voluntary manslaughter. Contrary to Swartz’s claim on appeal, we believe that

       this statement, when considered together with the other relevant instructions,

       was sufficient to instruct the jury it could only find Swartz guilty of murder if it

       found that the State met its burden of proving that Swartz did not act in sudden

       heat.


[15]   The question of whether Swartz acted under sudden heat was a question for the

       jury to resolve. Estes, 451 N.E.2d at 314. The question of witness credibility,

       i.e., whether the State’s or Swartz’s witnesses were credible, was also a question

       for the jury to resolve. See Klaff v. State, 884 N.E.2d 272, 274 (Ind. Ct. App.

       2008) (providing that the jury, acting as the trier-of-fact, is free to believe

       whomever it sees fit). As such, it was within the province of the jury to find the

       version of the events presented by the State’s witnesses to be more credible than

       that presented by the defense witnesses. Review of the record demonstrates that

       the State presented sufficient evidence in its case-in-chief by which the jury

       could determine that the State met its burden of proving that Swartz did not act

       in sudden heat. See generally, id. (providing that the State may meet is burden of

       proving beyond a reasonable doubt that a defendant did not act with sudden

       heat by rebutting the defendant’s evidence or by affirmatively showing in its


       Court of Appeals of Indiana | Memorandum Decision 49A05-1512-PC-2131 | May 13, 2016   Page 13 of 21
       case-in-chief that the defendant was not acting in sudden heat when the killing

       occurred).


[16]   We reiterate that in order to prove ineffective assistance of counsel, a defendant

       must prove that he suffered prejudice as a result of counsel’s alleged errors.

       Reed, 866 N.E.2d at 769. Again, a petitioner may show prejudice by

       demonstrating that there is a reasonable probability, i.e., a probability sufficient

       to undermine confidence in the outcome, that, but for counsel’s alleged errors,

       the result of the proceeding would have been different. Id. Because the

       instructions tendered by the trial court adequately instructed the jury as to the

       State’s burden of proof and the evidence presented was such that the jury,

       acting as the trier of fact, could find that the State met said burden, we conclude

       that Swartz has failed to show that he was prejudiced by his trial counsel’s

       representation in this regard. We therefore conclude that Swartz’s claim that he

       was prejudiced by his trial counsel’s failure to object to the tendered jury

       instructions is without merit.


                                      2. Failure to Impeach Witness

[17]   Swartz also argues that his trial counsel provided ineffective assistance by

       failing to impeach Culvahouse about prior inconsistent statements he made

       regarding how many punches were thrown between Swartz and the victim and

       whether either connected with any of those punches.


[18]   The Indiana Supreme Court has repeatedly held that the method of impeaching

       a witness is a tactical decision and a matter of trial strategy that does not


       Court of Appeals of Indiana | Memorandum Decision 49A05-1512-PC-2131 | May 13, 2016   Page 14 of 21
       amount to ineffective assistance. Kubsch v. State, 934 N.E.2d 1138, 1151 (Ind.

       2010) (citing Bivins v. State, 735 N.E.2d 1116, 1134 (Ind. 2000)). This includes

       situations where there are inconsistencies between an out-of-court statement

       made by and the in-court testimony of the witness. Although questioning a

       witness about such inconsistencies could potentially be useful for impeachment

       purposes, the Indiana Supreme Court has repeatedly held that a decision not to

       impeach a witness with such inconsistent statements does not, under normal

       circumstances, amount to deficient performance because such a decision is a

       matter of strategy and counsel is permitted to make reasonable judgments in

       strategy. See Bivins, 735 N.E.2d at 1134; see also Olson v. State, 563 N.E.2d 565,

       568 (Ind. 1990) and Fugate v. State, 608 N.E.2d 1370, 1373 (Ind. 1993) (each

       holding that the method of impeaching witnesses was a tactical decision, a

       matter of trial strategy, and did not amount to ineffective assistance of counsel).


[19]   Review of the record reveals that Culvahouse’s deposition testimony that both

       Swartz and the victim threw multiple punches and that the first punch thrown

       by each man connected was inconsistent with his trial testimony that while

       Swartz threw multiple punches, the victim only threw one punch.

       Culvahouse’s deposition testimony that each man made contact with the other

       was also inconsistent with his trial testimony that the punch thrown by the

       victim did not make contact with Swartz. However, although inconsistent

       regarding the number of punches thrown by each man and whether these

       punches connected, Culvahouse’s deposition and trial testimony were

       seemingly consistent in all other regards. Specifically, Culvahouse consistently


       Court of Appeals of Indiana | Memorandum Decision 49A05-1512-PC-2131 | May 13, 2016   Page 15 of 21
       testified both in his deposition and at trial that Swartz initiated contact between

       the men by first engaging the victim, Swartz taunted the victim, the victim did

       not verbally respond to Swartz’s taunts, Swartz threw the first punch, and only

       after Swartz threw this punch did the victim respond by also throwing at least

       one punch. Culvahouse’s deposition and trial testimony were also consistent in

       stating that the victim had fallen backwards and appeared to be retreating

       before Swartz pulled out his knife and stabbed the victim.


[20]   Review of the record also reveals that trial counsel did, in fact, attempt to

       impeach Culvahouse by questioning him about other seemingly prior

       inconsistent statements. Further, in an attempt to tarnish Culvahouse’s

       credibility, Culvahouse was questioned about his criminal history which

       included prior convictions for burglary, possession of stolen property, and check

       deception. However, despite these potential credibility issues, the jury was in

       the best position to judge the truthfulness of Culvahouse’s testimony, which

       was consistent with the testimony of numerous other witnesses. See Klaff, 884

       N.E.2d at 274.


[21]   Swartz argues that additional impeachment of Culvahouse would have, in

       some way, diminished the credibility of some of the witnesses who testified for

       the State because there was testimony that the witnesses in question had taken

       oxycontin and had potentially drank alcohol on the date in question. However,

       we observe that while the consumption of alcohol or use of drugs may indeed

       affect the credibility of a witness, drug and alcohol use was an issue affecting all

       witnesses, i.e., those testifying for the State and for the defense, in this case.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1512-PC-2131 | May 13, 2016   Page 16 of 21
       Swartz fails to establish how an additional attempt to impeach Culvahouse

       would have put his credibility in greater question or would have impacted the

       jury’s credibility determination of the other witnesses who testified at trial.


[22]   Again, trial counsel placed Culvahouse’s credibility at issue during trial.

       Having already placed Culvahouse’s credibility at issue, trial counsel made the

       tactical decision not to attempt to further impeach Culvahouse with regard to

       the inconsistencies in his deposition and trial testimony regarding the number of

       punches thrown between Swartz and the victim and whether any of the

       punches connected. This approach seems reasonable given that Culvahouse’s

       trial testimony about the events in question was largely consistent with that

       provided by numerous other witnesses. As such, we agree with the post-

       conviction court’s determination that trial counsel’s decision to forgo further

       attempts to impeach Culvahouse was a reasonable tactical and strategic

       decision. Swartz has failed to prove that his trial counsel’s tactical decision not

       to attempt to further impeach Culvahouse amounted to deficient performance.

       We therefore conclude that Swartz has failed to establish that he suffered

       ineffective assistance of trial counsel in this regard.


                   B. Ineffective Assistance of Appellate Counsel
[23]   The standard of review for a claim of ineffective assistance of appellate counsel

       is the same as for trial counsel in that the petitioner must show appellate

       counsel was deficient in his performance and that the deficiency resulted in

       prejudice. Overstreet v. State, 877 N.E.2d 144, 165 (Ind. 2007) (citing Bieghler v.

       State, 690 N.E.2d 188, 193 (Ind. 1997)). Again, to satisfy the first prong, the
       Court of Appeals of Indiana | Memorandum Decision 49A05-1512-PC-2131 | May 13, 2016   Page 17 of 21
       petitioner must show that counsel’s performance was deficient in that counsel’s

       representation fell below an objective standard of reasonableness and that

       counsel committed errors so serious that petitioner did not have the “counsel”

       guaranteed by the Sixth Amendment. Id. (citing McCary v. State, 761 N.E.2d

       389, 392 (Ind. 2002)). To show prejudice, the petitioner must show a

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

       would have been different. Id. (citing McCary, 761 N.E.2d at 392). “When

       raised on collateral review, ineffective assistance 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.” Id. (citing McCary, 761 N.E.2d at 193-95).


[24]   In alleging ineffective assistance of appellate counsel, Swartz claims that his

       counsel rendered ineffective assistance by failing to challenge the above-

       discussed tendered jury instructions on direct appeal. The Indiana Supreme

       Court has noted that the failure to raise an issue on direct appeal can be a

       formidable error because of the well-established rule that issues that were or

       could have been raised on direct appeal are not available for post-conviction

       review. See Bieghler, 690 N.E.2d at 193. Nevertheless, “‘[i]neffectiveness is very

       rarely found in these cases.’” Id. (quoting Lissa Griffin, The Right to Effective

       Assistance of Appellate Counsel, 97 W. Va. L.Rev. 1, 25 (1994)) (brackets in

       original). One explanation for why ineffectiveness is rarely found in these types

       of cases is that the decision of what issues to raise on appeal is one of the most

       important strategic decisions to be made by appellate counsel. Id.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1512-PC-2131 | May 13, 2016   Page 18 of 21
               “Experienced advocates since time beyond memory have
               emphasized the importance of winnowing out weaker arguments
               on appeal and focusing on one central issue if possible, or at most
               a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct.
               3308, 3313, 77 L.Ed.2d 987 (1983). As Justice Jackson noted,
                       “Legal contentions, like the currency, depreciate
                       through over-issue. The mind of an appellate judge is
                       habitually receptive to the suggestion that a lower
                       court committed an error. But receptiveness declines
                       as the number of assigned errors increases.
                       Multiplicity hints at lack of confidence in any one....
                       [E]xperience on the bench convinces me that
                       multiplying assignments of error will dilute and
                       weaken a good case and will not save a bad one.”
               Id. at 752, 103 S.Ct. at 33133 (quoting Justice Robert H. Jackson,
               Advocacy Before the United States Supreme Court, 25 Temple L.Q.
               115, 119 (1951)). 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. See Smith v. Murray, 477 U.S. 527, 535-36, 106
               S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986).


       Id. at 193-94.


[25]   The Indiana Supreme Court noted that “[i]n analyzing this sort of case, the

       Seventh Circuit, under its performance analysis, first looks to see whether the

       unraised issues were significant and obvious upon the face of the record.” Id. at

       194. “If so, that court then compares these unraised obvious issues to those

       raised by appellate counsel, finding deficient performance ‘only when ignored

       issues are clearly stronger than those presented.’” Id. (quoting Gray v. Greer, 800

       F.2d 644, 646 (7th Cir.1986) (additional citations omitted). The Supreme Court


       Court of Appeals of Indiana | Memorandum Decision 49A05-1512-PC-2131 | May 13, 2016   Page 19 of 21
       also noted that when completing this analysis, “the reviewing court should be

       particularly sensitive to the need for separating the wheat from the chaff in

       appellate advocacy, and should not find deficient performance when counsel’s

       choice of some issues over others was reasonable in light of the facts of the case

       and the precedent available to counsel when that choice was made.” Id.


[26]   Swartz alleges that his appellate counsel provided ineffective assistance by

       failing to challenge the propriety of the above-discussed tendered jury

       instructions on appeal. During the evidentiary hearing on Swartz’s PCR

       petition, Swartz’s appellate counsel testified that he raised four different issues

       on direct appeal. He also noted that his discussions with trial counsel did not

       raise a clear concern regarding the propriety of the above-mentioned tendered

       jury instructions, which again were not objected to at trial. Although appellate

       counsel acknowledged during the evidentiary hearing that he now had some

       degree of concern regarding the propriety of the jury instructions at issue,

       appellate counsel indicated that he did not challenge the above-discussed jury

       instructions on direct appeal because it did not appear that any potential error

       in the instructions would amount to fundamental error.


[27]   Again, the decision of what claims to raise on appeal is one of the most

       important strategic decisions to be made by appellate counsel and, upon review,

       we will not second guess appellate counsel’s strategic decision as to what claims

       to raise unless counsel’s decisions in this regard were unquestionably

       unreasonable. Id. at 193-94. Given our conclusion that the above-discussed

       jury instructions correctly instructed the jury as to the State’s burden, we cannot

       Court of Appeals of Indiana | Memorandum Decision 49A05-1512-PC-2131 | May 13, 2016   Page 20 of 21
       say that a challenge to said instructions was “clearly stronger” than the issues

       presented by counsel on direct appeal. See id. at 194. As such, we conclude

       that Swartz has failed to prove that appellate counsel provided deficient

       performance by failing to challenge the propriety of the aforementioned jury

       instructions on direct appeal. Swartz’s claim in this regard is therefore without

       merit.



                                               Conclusion
[28]   We conclude that Swartz has failed to prove that he suffered ineffective

       assistance of either trial or appellate counsel. We therefore affirm the judgment

       of the post-conviction court.


[29]   The judgment of the post-conviction court is affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1512-PC-2131 | May 13, 2016   Page 21 of 21
