MEMORANDUM DECISION                                                              FILED
                                                                            Sep 25 2017, 10:27 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                                 CLERK
this Memorandum Decision shall not be                                        Indiana Supreme Court
                                                                                Court of Appeals
regarded as precedent or cited before any                                         and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Herbert Robertson                                        Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Herbert Robertson,                                       September 25, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         82A05-1610-PC-2303
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Kelli E. Fink,
Appellee-Respondent                                      Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1212-PC-27



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A05-1610-PC-2303 | September 25, 2017            Page 1 of 16
[1]   Herbert Robertson appeals the denial of his petition for post-conviction relief,

      arguing that the post-conviction court erroneously denied his request for an

      evidentiary hearing, his motion to compel affidavits, and his motion for

      interlocutory appeal. Robertson also claims that the post-conviction court

      erroneously determined that he did not receive the ineffective assistance of trial

      counsel. Finding no error, we affirm.


                                                     Facts
[2]   The underlying facts as set forth in Robertson’s direct appeal are as follows:


              During the evening of December 21, 2009, Andrea Atterberry
              was working alone at a Vanderburgh County liquor store.
              Robertson entered the store and purchased a half pint of vodka
              and asked for change for the soda machine. About an hour later,
              Robertson returned, bought another half pint of vodka, and asked
              Atterberry when her shift was over. Robertson entered the store
              a third time and asked Atterberry for change for a ten-dollar bill.
              Atterberry opened the cash register drawer and got the change.
              When she looked up, Robertson had a knife and demanded,
              “[B]**ch give me the money in the drawer.” She declined and
              called 911. While Atterberry was talking to the 911 operator,
              Robertson screamed and stabbed at her with the knife.
              Atterberry threw the money at him, and he left. The police
              arrived, but Robertson was gone.


              That day, Atterberry provided a description of the robber to
              Evansville Police Detective Tony Mayhew that was recorded and
              transcribed. Atterberry described the robber as about five feet
              eight inches tall, around 220 pounds, with blue eyes and a two-
              to-three-day beard growth, and wearing a black stocking cap, a
              blue hooded jacket, a blue button shirt, light colored jeans, and
              black shoes.

      Court of Appeals of Indiana | Memorandum Decision 82A05-1610-PC-2303 | September 25, 2017   Page 2 of 16
              A month or two later, Detective Mayhew was investigating an
              unrelated liquor store theft and noticed that the suspect in that
              case . . . fit Atterberry’s description. Detective Mayhew showed
              Atterberry a photo array of six men, which included [the other
              suspect] but not Robertson. Atterberry did not identify any of the
              men as the actual robber, but said that of the six men, [the other
              suspect] most resembled the robber. About a week later,
              Detective Mayhew showed Atterberry approximately fifty
              photographs, none of which were of Robertson. Atterberry said
              that none of the photographs were of the man who had robbed
              her.


              Sometime later, Atterberry informed Detective Mayhew that she
              remembered that the robber had previously come into the store
              with a woman whom Atterberry would recognize. After
              Atterberry identified that woman in a photo array, Detective
              Mayhew showed her another photo array containing Robertson’s
              picture. Atterberry immediately identified Robertson as the
              robber.


              The State charged Robertson with class B felony armed robbery
              and with being a habitual offender.


      Robertson v. State, No. 82A01-1110-CR-465, *1-*3 (Ind. Ct. App. June 21, 2012)

      (internal citations omitted).


[3]   Robertson’s trial began on July 5, 2011. At trial, the State called Atterberry and

      Detective Mayhew to testify. During cross-examination, Robertson’s trial

      counsel elicited several key facts: (1) that Atterberry had failed to inform

      Detective Mayhew that the robber had been in the store on two other occasions

      the night of the robbery; (2) that Atterberry had failed to tell Detective Mayhew

      that she had seen the robber in the store with a woman prior to the night in

      Court of Appeals of Indiana | Memorandum Decision 82A05-1610-PC-2303 | September 25, 2017   Page 3 of 16
      question; (3) that her initial description of the robber to both the 911 operator

      and Detective Mayhew was imprecise as to the estimated height, the estimated

      weight, and the perceived hair and eye color, when comparing her description

      with Robertson; (4) that she initially identified another man as looking “very

      similar” to the robber in a photo array; (5) that she failed to initially mention a

      purported gap in the robber’s teeth; and (6) that, based on Atterberry’s

      imprecise description, the police initially suspected someone else as the robber.

      Trial Tr. p. 48-55, 60-67, 134-36, 146-50, 159-69.


[4]   Jury deliberations began on July 5, 2011. On the second day of jury

      deliberations, one juror fell ill and was replaced by the alternate, who had been

      selected earlier without objection. Following deliberations, the jury found

      Robertson guilty of class B felony armed robbery, and the trial court found that

      Robertson was an habitual offender. We affirmed Robertson’s conviction.


[5]   On November 28, 2012, Robertson filed a pro se petition for post-conviction

      relief. After one and one-half years of investigation, on January 13, 2016,

      Robertson filed an amended petition for post-conviction relief and a motion for

      an evidentiary hearing on his petition. The post-conviction court denied the

      motion for an evidentiary hearing on January 20, 2016. On the same day, the

      post-conviction court ordered the case to proceed by affidavit, giving Robertson

      until March 25, 2016, and the State until May 20, 2016, to file any affidavits or

      proposed findings. On March 7, 2016, the post-conviction court denied

      Robertson’s certification for interlocutory appeal. On March 15, 2016, the post-

      conviction court denied Robertson’s motion to compel affidavits, though the

      Court of Appeals of Indiana | Memorandum Decision 82A05-1610-PC-2303 | September 25, 2017   Page 4 of 16
      court noted that it was amenable to providing additional time for Robertson to

      acquire additional affidavits if he made a written request.


[6]   After submitting his own affidavit, Robertson was granted a continuance until

      May 20, 2016, to file affidavits and proposed findings. On May 9, 2016,

      Robertson filed proposed findings of fact and conclusions of law. On

      September 19, 2016, the post-conviction court issued its findings of fact and

      conclusions of law denying post-conviction relief. Robertson now appeals.


                                   Discussion and Decision
[7]   Robertson raises six issues, which we consolidate into two: (1) whether the

      post-conviction court erred by denying his motion for an evidentiary hearing,

      his motion to compel affidavits, and his motion to certify for interlocutory

      appeal; and (2) whether the post-conviction court erred in finding that

      Robertson did not receive the ineffective assistance of counsel.


                                      I.      Standard of Review
[8]   The general rules regarding the review of a petition for post-conviction relief are

      well established:


              “The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
              “When appealing from the denial of post-conviction relief, the
              petitioner stands in the position of one appealing from a negative
              judgment.” Id. 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

      Court of Appeals of Indiana | Memorandum Decision 82A05-1610-PC-2303 | September 25, 2017   Page 5 of 16
        opposite that reached by the post-conviction court. Weatherford v.
        State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
        conviction court in this case made findings of fact and
        conclusions of law in accordance with Indiana Post-Conviction
        Rule 1(6). Although 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.” Ben-Yisrayl v. State, 729 N.E.2d
        102, 106 (Ind. 2000) (quotation omitted).


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


        When evaluating an ineffective assistance of counsel claim, we
        apply the two-part test articulated in Strickland v. Washington, 466
        U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
        State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
        prong, “the defendant must show deficient performance:
        representation that fell below an objective standard of
        reasonableness, committing errors so serious that the defendant
        did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
        McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
        Strickland, 466 U.S. at 687-88). To satisfy the second prong, “the
        defendant must show prejudice: 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. (citing Strickland, 466 U.S. at 694).


Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017). “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 establish either of the two prongs will



Court of Appeals of Indiana | Memorandum Decision 82A05-1610-PC-2303 | September 25, 2017   Page 6 of 16
       cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind. Ct. App.

       2012).


                                       II. Procedural Matters

                                       A. Evidentiary Hearing
[9]    Robertson first claims error in the post-conviction court’s decision to deny his

       request for an evidentiary hearing and, instead, to proceed by affidavit. Indiana

       Post-Conviction Rule 1(9)(b) sets forth the rules for a pro se litigant:


                In the event petitioner elects to proceed pro se, the court at its
                discretion may order the cause submitted upon affidavit. It need
                not order the personal presence of the petitioner unless his
                presence is required for a full and fair determination of the issues
                raised at an evidentiary hearing. If the pro se petitioner requests
                issuance of subpoenas for witnesses at an evidentiary hearing, the
                petitioner shall specifically state by affidavit the reason the witness’
                testimony is required and the substance of the witness’ expected
                testimony. If the court finds the witness’ testimony would be
                relevant and probative, the court shall order that the subpoena be
                issued.


       (emphasis added).


[10]   “[I]f the [post-conviction court] orders the cause submitted by affidavit under

       Rule 1(9)(b), it is the court’s prerogative to determine whether an evidentiary

       hearing is required, along with the petitioner’s personal preference, to achieve a

       ‘full and fair determination of the issues raised[.]’” Smith v. State, 822 N.E.2d

       193, 201 (Ind. Ct. App. 2005) (quoting P-C.R. 1(9)(b)). We will reverse only if



       Court of Appeals of Indiana | Memorandum Decision 82A05-1610-PC-2303 | September 25, 2017   Page 7 of 16
       “its decision is against the logic and effect of the facts and circumstances before

       it.” Pannell v. State, 36 N.E.3d 477, 486 (Ind. Ct. App. 2015), trans. denied.


[11]   Robertson’s motion to set an evidentiary hearing failed to specifically state, by

       affidavit, the reasons why the testimony of the named parties was necessary and

       what the substance of that testimony would be. Instead, Robertson simply

       made conclusory statements in the motion such as “Petitioner intends to call

       trial counsel . . . to show . . . that [trial counsel] was ineffective, unprepared,

       and failed to test the States [sic] case . . .” and “[W]itnesses will offer Material

       Facts that were not heard by the jury, and are required for the petitioner to

       carry his burden of proof . . . .” Appellant’s App. Vol. III p. 16 (original

       emphasis omitted). As such, Robertson failed to meet his burden under Post-

       Conviction Rule 1(9)(b).


[12]   While he did not submit an affidavit in support of his request for an evidentiary

       hearing,1 Robertson contends that his petition for post-conviction relief

       adequately informed the post-conviction court of what he intended to elicit

       from the proposed witnesses. Rule 1(9)(b) explicitly requires an affidavit

       containing sufficient information for the post-conviction court to determine if a

       hearing is needed. Robertson’s post-conviction petition itself does not suffice.




       1
        Robertson submitted his own affidavit in support of his petition for post-conviction relief, but it fails to
       specifically state which parties Robertson would like to have testify—except, perhaps, his trial counsel—or
       why their in-court testimony would be required.

       Court of Appeals of Indiana | Memorandum Decision 82A05-1610-PC-2303 | September 25, 2017          Page 8 of 16
[13]   Without any affidavits or other clear evidence of the substance of the proposed

       testimony, it would have been next to impossible for the post-conviction court

       to determine the necessity of holding an evidentiary hearing. Thus, we cannot

       say that the post-conviction court’s denial of the request for an evidentiary

       hearing was erroneous.


                               B. Motion to Compel Affidavits
[14]   The post-conviction court has discretion to rule on a petitioner’s request for a

       subpoena and it will only be reversed if the decision “is against the logic and

       effect of the facts and circumstances before the court.” Johnson v. State, 832

       N.E.2d 985, 994 (Ind. Ct. App. 2005). In his motion to compel affidavits,

       Robertson requested the post-conviction court to compel the following

       witnesses to submit affidavits: his trial counsel, a detective, the 911 operator,

       the other suspect’s former girlfriend, and the alternate juror. Robertson claims

       that he attempted to procure affidavits and was ignored by all proposed affiants

       twice. The post-conviction court attempted to accommodate Robertson, first by

       extending the deadline for submission of Robertson’s affidavits to May 20,

       2016, and then by leaving open the possibility of further extension, if Robertson

       made a written request to the court. Nevertheless, Robertson filed his proposed

       findings of fact and conclusions of law nearly two weeks early, and made no

       requests for additional time to acquire the affidavits.


[15]   Robertson fails to cite to any evidence that corroborates his allegation that he

       was being ignored, such as copies of his requests to the proposed affiants.


       Court of Appeals of Indiana | Memorandum Decision 82A05-1610-PC-2303 | September 25, 2017   Page 9 of 16
       Further, Robertson’s argument does not address the fact that the post-

       conviction court was willing to give Robertson more time to gather facts—an

       opportunity of which Robertson failed to take advantage. The post-conviction

       court acted reasonably by granting Robertson more time to either build his case

       or prove that he was being ignored, rather than granting him the specific relief

       he sought. Thus, we cannot say that the post-conviction court’s denial of the

       motion to compel affidavits was erroneous.2


                      III. Ineffective Assistance of Trial Counsel
                                  A. Impeachment of Atterberry
[16]   Robertson first claims that trial counsel’s performance was deficient because

       trial counsel’s impeachment of Andrea Atterberry, the store clerk who was the

       sole eyewitness to the crime, did not utilize police reports, her sworn

       statements, or the recording of her 911 call to more fully impeach and attack

       her credibility. Specifically, Robertson focuses on trial counsel’s alleged failure

       to emphasize Atterberry’s earlier inconsistent statements and identifications

       regarding the robber. The post-conviction court found that trial counsel

       “conducted extensive cross-examination” of Atterberry and that “the

       information that [trial counsel] did not elicit would not have resulted in

       prejudice to Petitioner in light of the fact that [Atterberry] identified Petitioner




       2
         Robertson also contends that the post-conviction court should have granted his motion to certify some of
       these issues for discretionary interlocutory appeal. See Ind. Appellate Rule 14. However, he failed to
       specifically address this issue in his briefs. Accordingly, he has waived this argument.

       Court of Appeals of Indiana | Memorandum Decision 82A05-1610-PC-2303 | September 25, 2017      Page 10 of 16
       at trial and in an earlier photo array as the person who committed the robbery.”

       Appellant’s App. Vol. II p. 31.


[17]   As stated above in the facts section, there is ample evidence in the record that

       trial counsel vigorously and skillfully cross-examined Atterberry and did, in

       fact, attempt to undercut her credibility by pointing to her inconsistent past

       statements. See Waldon v. State, 684 N.E.2d 206, 208 (Ind. Ct. App. 1997)

       (noting that “the nature and extent of cross-examination is a matter of trial

       strategy delegated to trial counsel.”). Nothing in the record leads us to

       conclude that the post-conviction court erred by finding that trial counsel was

       not ineffective for deciding not to use the specific pieces of evidence highlighted

       by Robertson. We decline to reverse on this basis.


                                                     B. 911 Call
[18]   Robertson next contends that trial counsel was ineffective for failing to provide

       a copy of the 911 call to Robertson3 and for not offering it into evidence at trial

       so that the jury might have compared the voice in the call to his own.

       Robertson alleges that a comparison of this recording to his own voice would

       have convinced the jury of his innocence and further impeached Atterberry.

       Robertson’s assertions are meritless. As noted above, trial counsel thoroughly

       highlighted these issues during the cross-examination of Atterberry and




       3
        Robertson fails to cite to any relevant authority or make any cogent argument for the proposition that trial
       counsel had a duty to present Robertson with a copy of the 911 call or that counsel had a duty to consult with
       him on whether to seek a voice recognition expert. Accordingly, he has waived these arguments.

       Court of Appeals of Indiana | Memorandum Decision 82A05-1610-PC-2303 | September 25, 2017       Page 11 of 16
       Detective Mayhew. These points were also emphasized to the jury in

       Robertson’s closing statements. Therefore, nothing in the record establishes

       either that trial counsel’s performance was deficient or, even if it was, that

       Robertson was prejudiced as a result. We find that the post-conviction court

       did not err in concluding that Robertson did not receive the ineffective

       assistance of trial counsel on this issue.


                                             C. Witness Issues
[19]   Robertson next alleges that trial counsel’s failure to file a defense witness list

       and his decision not to call certain witnesses rendered his assistance ineffective.

       Specifically, Robertson claims that, had a witness list been filed, trial counsel

       could have called four additional witnesses, including: the other suspect; the

       other suspect’s former girlfriend; the 911 operator; and a detective.


[20]   The record shows that none of these witnesses were excluded because of a

       witness list. The trial court excluded testimony from the other suspect because

       the testimony did not comply with rules regarding the use of evidence to

       establish that someone else committed the crime at issue. None of the

       remaining witnesses were excluded at all—because trial counsel chose not to

       call them. There is no evidence that his decision was based on the lack of a

       witness list. Therefore, Robertson cannot demonstrate prejudice because none

       of the proposed witnesses were excluded because of a failure to file a witness

       list.




       Court of Appeals of Indiana | Memorandum Decision 82A05-1610-PC-2303 | September 25, 2017   Page 12 of 16
[21]   Robertson also contends that counsel’s decision not to call these witnesses

       rendered his performance ineffective. We note that “[a] decision regarding

       what witnesses to call is a matter of trial strategy which an appellate court will

       not second-guess.” Brown v. State, 691 N.E.2d 438, 447 (Ind. 1998). The post-

       conviction court concluded in part that:


               Petitioner has not presented any affidavits of these possible
               witnesses to allow this Court to make a determination of whether
               or not there [sic] testimony would have been relevant. If the
               testimony would have been relevant, the Court then would have
               needed to make a determination as to whether or not trial
               counsel’s failure to call the witnesses was ineffective. Without
               additional information, this Court is unable to determine if the
               failure to call these witnesses was ineffective or if the result of the
               proceeding would have been different if these witnesses would
               have been called to testify at trial.


       Appellant’s App. Vol. II p. 35. We echo the post-conviction court’s sentiment.

       There is no evidence as to the substance of any testimony beyond Robertson’s

       conclusory speculations. Therefore, it is impossible to determine the value or

       relevance of any of these potential witnesses’ testimony and it is impossible to

       determine if not calling them went beyond poor trial tactics and otherwise

       resulted in discernible prejudice. Accordingly, we cannot say that we are left

       with a definite and firm conviction that the post-conviction court erred in

       finding that trial counsel was not ineffective on this issue.




       Court of Appeals of Indiana | Memorandum Decision 82A05-1610-PC-2303 | September 25, 2017   Page 13 of 16
                               D. Alternate Juror Instruction
[22]   Before jury deliberations began, the trial court instructed all jurors, including

       the alternate, as follows:


               To return a verdict, each of you must agree to it. Each of you
               must decide the case for yourself, but only after considering the
               evidence with the other jurors. It is your duty to consult with
               each other. You should try to agree on a verdict, if you can do so
               without compromising your individual judgment. Do not
               hesitate to re-examine your own views and change your mind if
               you believe you are wrong. But do not give up your honest belief
               just because the other jurors may disagree, or just to end the
               deliberations. After the verdict is read in court, you may be
               asked individually whether you agree with it.


       Trial Tr. p. 473. After the jury left the courtroom to deliberate, the alternate

       juror was permitted to return home, so long as he did not impair his judgment.

       When the trial court excused the sick juror, the alternate returned and joined

       the jury. The post-conviction court found “no evidence . . . that [Robertson]

       was prejudiced by the replacement . . . or that [trial counsel] had any basis to

       object to the alternate juror returning for deliberations.” Appellant’s App. Vol.

       II p. 33. Robertson was not present or consulted when the juror was replaced.

       He contends that he was prejudiced because: (1) he had a right to be present for

       the decision to use the alternate juror and (2) the jury should have begun

       deliberations anew or should have been given specific new instructions for the

       alternate juror to properly participate.




       Court of Appeals of Indiana | Memorandum Decision 82A05-1610-PC-2303 | September 25, 2017   Page 14 of 16
[23]   With respect to his first claim, Robertson fails to cite to any authority

       suggesting that participation in the placement of an alternate juror is in any way

       a decision that is fundamental to his defense. See Dew v. State, 843 N.E.2d 556,

       565 (Ind. Ct. App. 2006) (noting that a defendant has a constitutional right to

       participate in making decisions which are “fundamental” to his or her defense).

       There were no objections to the selection of the alternate juror during voir dire

       and there is no reason to conclude that there would have been a meritorious

       basis for challenging the placement of the alternate juror once the other juror

       became ill. As such, Robertson has failed to establish either that trial counsel

       acted below the standard of care or that Robertson suffered any material

       prejudice by it.


[24]   With respect to his second claim, Robertson has failed to allege any prejudice

       from the use of the alternate juror. Specifically, Robertson has not alleged, in

       any way, that the use of the alternate juror impacted the decision of the jury

       beyond bald guesses that group deliberations did not occur and that the rest of

       the jury had already decided Robertson’s guilt before the alternate juror joined.

       As he has shown no prejudice, Robertson’s claim on this issue fails.


                                         E. Alibi Instruction
[25]   Finally, Robertson claims that his trial counsel was ineffective for failing to

       request a jury instruction encompassing an alibi defense. Specifically,

       Robertson focuses on trial counsel’s pre-trial notice to use an alibi defense and

       subsequent decision not to seek it. Robertson’s sole alibi witness was Lisa


       Court of Appeals of Indiana | Memorandum Decision 82A05-1610-PC-2303 | September 25, 2017   Page 15 of 16
       White. White testified that she and Robertson stayed with each other from

       December 19 through December 21, 2009, at the Knight’s Inn on East 21st

       Street in Indianapolis. However, at trial, the State impeached White’s

       testimony in two ways. First, the State introduced the Knight’s Inn’s business

       records, which indicated that no one named Robertson or White had stayed at

       that location on the dates testified to by White. Second, Detective Mayhew

       testified that there were no records at the Knight’s Inn of either White or

       Robertson staying there. Moreover, the jury submitted questions to White,

       including whether White could produce a receipt from her alleged stay, which

       she could not.


[26]   It is apparent that trial counsel may have reasonably and strategically opted for

       the defense of misidentification by Atterberry, rather than an alibi defense, after

       White’s testimony was so severely undercut by the State. “Counsel is afforded

       considerable discretion in choosing strategy and tactics, and we accord that

       decision deference.” Connor v. State, 711 N.E.2d 1238, 1248 (Ind. 1999).

       Considering the deference given to counsel on matters of trial strategy, and

       considering the impeachment of White’s testimony and the jury’s own inquiries

       about White, we cannot say that trial counsel’s decision to decline to request an

       alibi instruction was a failure of his duty of care or that any prejudice resulted

       from his decision to forgo this instruction. Thus, Robertson’s claim must fail.


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


       Mathias, J., and Pyle, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 82A05-1610-PC-2303 | September 25, 2017   Page 16 of 16
