                                                                           Jan 12 2016, 8:40 am




      APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
      Christopher Rondeau                                        Gregory F. Zoeller
      Pendleton, Indiana                                         Attorney General of Indiana
                                                                 Monika Prekopa Talbot
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Christopher Rondeau,                                       January 12, 2016
      Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                 49A02-1505-PC-427
              v.                                                 Appeal from the Marion Superior
                                                                 Court, Criminal Division 1
      State of Indiana,                                          The Honorable Kurt Eisgruber,
      Appellee-Respondent.                                       Judge
                                                                 Trial Court Cause No.
                                                                 49G01-0904-PC-38670



      Bailey, Judge.



                                           Case Summary
[1]   Christopher Rondeau (“Rondeau”) was convicted of Murder, a felony, and

      sentenced to fifty-five years imprisonment. Proceeding pro se, he subsequently



      Court of Appeals of Indiana | Opinion 49A02-1505-PC-427 | January 12, 2016                  Page 1 of 24
      sought post-conviction relief. Rondeau’s petition for relief was denied, and he

      now appeals that denial.


[2]   We affirm.



                                                     Issues
[3]   Rondeau presents numerous issues for our review. We restate them as:

                 I.    Whether the post-conviction court was biased against Rondeau;
                II.    Whether the post-conviction court abused its discretion when it
                            a. Permitted the State to substitute its response to
                               Rondeau’s request for admissions;
                            b. Permitted the State to submit proposed findings and
                               conclusions after the deadline set forth by the post-
                               conviction court; and
                            c. Did not grant Rondeau’s requests to issue subpoenas for
                               certain witnesses;
               III.    Whether the post-conviction court erred when it concluded that
                       Rondeau did not receive ineffective assistance of trial counsel;
                       and
               IV.     Whether the post-conviction court erred when it concluded that
                       Rondeau did not receive ineffective assistance of appellate
                       counsel.


                             Facts and Procedural History
[4]   We take a portion of our statement of facts from this Court’s prior decision in

      Rondeau’s direct appeal after his conviction.

              Rondeau lived in Indianapolis with his grandmother, Franziska
              Stegbauer, and his great-uncle, Adolf Stegbauer, Franziska’s deceased

      Court of Appeals of Indiana | Opinion 49A02-1505-PC-427 | January 12, 2016       Page 2 of 24
        husband’s brother. Rondeau lived in a shed behind Franziska’s house.
        Rondeau was thirty-nine years old, Franziska was seventy-seven, and
        Adolf was sixty-nine. On April 9, 2009, Rondeau had a couple of
        beers and Adolf had been drinking all day and into the night. At some
        point, a sword fight ensued between Rondeau and Adolf, and
        Franziska intervened.
        During the fight, Franziska was stabbed in her left armpit. Although
        only “a little bit of dried blood” was visible, the injury caused a
        “massive hemorrhage within her left cavity.” Tr. pp. 85, 484–85. The
        stab wound “hit the heart—the anterior part of the left ventricle,
        caused some bleeding around the heart and then entered into the right
        hilar region where it caused some hemorrhage around the right lung
        here.” Id. at 484. Adolf was stabbed at least ten times, suffering
        injuries to his hand, arm, abdomen, head, heel, foot, and shoulder.
        Rondeau was stabbed once on the underside of his arm.
        At 12:58 a.m., Rondeau called 911. Rondeau reported, “my uncle was
        wasted, and he attacked me with a sword.” Ex.3. He stated, “So I
        attacked. I took it from him and hit him back with it.” Id. He
        continued, “And then, my grandma got involved, and she’s on the
        floor. Everybody’s bleeding.” Id. When asked if Franziska was
        awake, Rondeau said, “I have no idea.” Id. Rondeau stated that his
        glasses had been knocked off, and he could not see. Rondeau
        confirmed that everyone was awake and breathing but stated that they
        were all wounded. Rondeau then stated that he was trying to put his
        contacts in.
        When police arrived at the scene, Rondeau was standing outside
        flagging them down. Franziska was “on the ground unresponsive.”
        Tr. p. 71. Adolf was in his bedroom. He was “alert and responsive
        but he was bloody.” Id. at 72. Police could not communicate with
        Adolf because he only spoke German. When the first paramedic
        arrived, her engine crew was already performing CPR on Franziska.
        Franziska had been intubated “and they were breathing for her.” Id.
        at 83. The paramedic observed that Franziska was “pulseless” and
        “already pale and pretty cold to the touch. There was no breathing.”
        Id. In her report, however, the paramedic indicated there was “an
        irregular weak rhythm” and that Franziska’s breathing rate was ten
        breaths per minute. Id. at 92. Franziska arrived at the hospital at 2:03
        a.m. and was pronounced dead at 2:04 a.m.


Court of Appeals of Indiana | Opinion 49A02-1505-PC-427 | January 12, 2016     Page 3 of 24
        At 3:00 a.m. on April 9, 2009, Indianapolis Metropolitan Police
        Department Officer Jeffery Patterson and another officer interviewed
        Rondeau at the hospital while his leg was chained to a hospital bed.
        Rondeau was advised of his Miranda rights and signed a written waiver
        of those rights. Rondeau told police that Adolf and Franziska
        collected swords and hung them on the wall as decoration. He said
        that right before he called 911, Adolf and Franziska were arguing in
        German and that Adolf retrieved a katana. According to Rondeau,
        Franziska tried to hold Adolf back, Adolf pushed her out of the way
        twice, and she fell to the floor. Rondeau said that Adolf hit him with
        the katana, that Rondeau retrieved a saber from the wall, and that he
        hit Adolf with it at least twice. Rondeau told police that he eventually
        was able to get the katana from Adolf, that he put both swords in the
        kitchen, and that Adolf went to his bedroom. Rondeau stated that,
        after he put the swords in the kitchen, he called 911, checked on
        Franziska and tried to perform CPR, checked on Adolf and gave him
        some paper towels, went to the shed to get his contacts because his
        glasses had been knocked off, and went back into the house to the
        bathroom to put his contacts in. Rondeau said the fight took place in
        the hallway, and he tried to wipe up some of the blood. Rondeau told
        police that Franziska was on the floor the entire time he had a sword
        and that she had been on the floor two to four minutes before he called
        911. Rondeau indicated that he did not know Franziska had been
        stabbed and said it looked like she either had a stroke or a heart attack.
        An autopsy revealed that the cause of Franziska’s death was sharp
        force injury to the left chest. Adolf died on April 13, 2009. The cause
        of Adolf’s death was sharp force injury to the abdomen that caused
        bacteria in his stomach to be released into his peritoneal and
        abdominal cavities and led to septic shock.
        On April 15, 2009, the State charged Rondeau with Adolf’s murder
        and Class C felony reckless homicide relating to Franziska’s death.
        Prior to and during trial, Rondeau made motions to continue, motions
        to exclude, and motions for mistrial based on alleged discovery
        violations. At trial, over Rondeau’s objection, the trial court admitted
        his statement to police into evidence. Despite his self-defense
        argument, the jury found Rondeau guilty of Adolf’s murder. The jury
        found him not guilty of Franziska’s reckless homicide.




Court of Appeals of Indiana | Opinion 49A02-1505-PC-427 | January 12, 2016      Page 4 of 24
      Rondeau v. State, No. 49A02-1006-CR-694, slip op. at 2-5 (Ind. Ct. App. Mar.

      21, 2011). This Court affirmed Rondeau’s conviction.


[5]   On October 12, 2011, Rondeau filed a petition for post-conviction relief. The

      petition was amended to encompass additional claims for relief on June 6,

      2013.


[6]   During the pendency of the post-conviction proceedings, Rondeau twice

      requested subpoenas for testimony from numerous individuals. On June 6,

      2013, Rondeau requested subpoenas for testimony from Indianapolis

      Metropolitan Police Department Detective Daniel Bain (“Detective Bain”); his

      trial counsel, Travis Shields; his appellate counsel, Michael Fisher; four

      individuals known to Rondeau or his family, including Kevin Foster (“Foster”);

      Doctors Robert Bassett and Brian Sloan, who were Rondeau’s treating

      physicians for injuries he incurred during the fight with Stegbauer; and former

      Marion County Prosecutor Carl Brizzi. The post-conviction court granted two

      of these requests—those for testimony from trial counsel and appellate

      counsel—but denied the remainder of Rondeau’s requests without entering a

      finding with its reasoning for the denials.


[7]   The post-conviction hearing commenced on August 6, 2013. During the

      hearing, the trial court heard testimony from Rondeau’s trial counsel and from

      Foster, who appeared and provided testimony without the issuance of a

      subpoena. To allow for further testimony and argument, the hearing was

      continued to a later date.


      Court of Appeals of Indiana | Opinion 49A02-1505-PC-427 | January 12, 2016   Page 5 of 24
[8]    On September 30, 2013, after the first portion of the hearing on the petition for

       relief, Rondeau submitted a second set of requests for subponeas. In this

       second set of requests, Rondeau again requested testimony from his treating

       physicians and Detective Bain. Rondeau also requested subpoenas for

       testimony from a crime scene investigator and two technicians from the

       Indianapolis-Marion County Forensic Services Agency. The post-conviction

       court denied these with a finding stating its rationale that the requests were not

       ripe for consideration “unless or until the court hears from trial counsel as to

       the strategic and tactical decisions made during … representation of

       [Rondeau].” (App’x at 280.)


[9]    The post-conviction hearing was continued to January 29, 2014, and was

       completed on February 25, 2014. At the end of the post-conviction hearing, the

       court requested proposed findings and conclusions from Rondeau and from the

       State. Rondeau timely submitted his proposed findings and conclusions. The

       State requested two enlargements of time that the court granted over Rondeau’s

       objection. The court ultimately set November 21, 2014 as the date by which the

       State was required to submit its proposed findings and conclusions, but the

       State did not submit these until December 1, 2014.


[10]   On April 30, 2015, the post-conviction court entered its findings and

       conclusions, which denied Rondeau’s petition for relief.


[11]   This appeal ensued.




       Court of Appeals of Indiana | Opinion 49A02-1505-PC-427 | January 12, 2016   Page 6 of 24
                                   Discussion and Decision
                                                        Bias
[12]   Rondeau argues that the post-conviction court was biased against him. “A trial

       court’s adverse rulings on judicial matters do not indicate a personal bias

       toward a defendant that calls into question the trial court’s impartiality.”

       Harrison v. State, 707 N.E.2d 767, 790 (Ind. 1999). Expressions of impatience,

       dissatisfaction, annoyance, and even anger do not establish bias or partiality.

       Id. (citing Liteky v. United States, 510 U.S. 540, 555-56 (1994)).


[13]   Here, the entirety of Rondeau’s claim of bias centers upon the post-conviction

       court’s adverse rulings against him on procedural matters. He characterizes

       some of these rulings as “intervention” on the part of the post-conviction court

       (Appellant’s Br. at 9), but does not develop the argument any further. To the

       extent that he insists his bias claim is “about following the rules of procedure”

       (Appellant’s Reply Br. at 1), he fails to identify any cognizable distinction

       between rulings and the trial court’s decisions with respect to specific

       procedural rules. Our review of the record gives no indication of any personal

       bias on the part of the post-conviction court, and the presence of adverse rulings

       is not sufficient to establish bias. To the extent Rondeau’s appeal challenges

       specific rulings on their merits, we address those in turn below.




       Court of Appeals of Indiana | Opinion 49A02-1505-PC-427 | January 12, 2016   Page 7 of 24
                      Conduct of Post-Conviction Proceedings
                                        Requests for Admission
[14]   Rondeau contends that the post-conviction court erred when it permitted the

       State to file a substitute response, in the form of a signed copy to replace an

       unsigned copy, to Rondeau’s requests for admissions.


[15]   Trial Rule 36 governs the use of requests for admission in our trial courts. “A

       party may serve upon any other party a written request for the admission, for

       purposes of the pending action only, of the truth of any matters within the scope

       of Rule 26(B) set forth in the request, including the genuineness of any

       documents described in the request.” Ind. Trial Rule 36(A). “The matter is

       admitted” if a party does not respond to a request “within a period designated

       in the request, not less than thirty [30] days after service thereof or within such

       shorter or longer time as the court may allow.” Id. Responses to requests for

       admission, whether served as “a written answer or objection,” must be “signed

       by the party or his attorney.” Id.


[16]   “Any matter admitted under this rule is conclusively established unless the

       court on motion permits withdrawal or amendment of the admission.” T.R.

       36(B). “[T]he court may permit withdrawal or amendment when the

       presentation of the merits of the action will be subserved thereby and the party

       who obtained the admission fails to satisfy the court that withdrawal or

       amendment will prejudice him.” Id. Whether to grant a request to withdraw or

       amend admissions is a matter within the trial court’s discretion. Larson v.


       Court of Appeals of Indiana | Opinion 49A02-1505-PC-427 | January 12, 2016   Page 8 of 24
       Karagan, 979 N.E.2d 655, 660 (Ind. Ct. App. 2012). We will reverse the court’s

       decision only upon an abuse of that discretion. Id. Even where an abuse of

       discretion has occurred, we will not reverse the judgment where that error is

       harmless, that is, where the error has not prejudiced the substantial rights of the

       parties. T.R. 61.


[17]   Here, Rondeau served requests for admission to the State on June 28, 2013.

       The State responded on July 11, 2013, but the State’s responses were not signed

       as required by Trial Rule 36(A).1 Rondeau brought this to the post-conviction

       court’s attention on August 6, 2013, and the State subsequently filed a motion

       to substitute its prior responses with a set of signed responses. The court

       granted the State’s motion, concluding that Rondeau was not prejudiced by the

       change. Rondeau filed an objection to the court’s decision, and the court

       overruled the objection.


[18]   Rondeau points out in great detail that the State did not adhere to the formal

       timelines set forth by the Trial Rules and the Marion County Local Rules for

       the submission of responses to requests for admission. But he has not

       established how the trial court’s decision to permit the State to substitute its

       responses prejudiced his substantial rights in the underlying proceeding, nor

       how the trial court may have abused its discretion to permit an amendment




       1
         Trial Rule 36(A) provides that a party to whom a request for admission has been directed must serve “upon
       the party requesting the admission a written answer or objection addressed to the matter, signed by the party
       or by his attorney.” Failure to do so results in the request being deemed admitted.

       Court of Appeals of Indiana | Opinion 49A02-1505-PC-427 | January 12, 2016                       Page 9 of 24
       under Trial Rule 36(B). Indeed, except for a signature by a deputy prosecutor,

       the State’s substitute responses to the requests for admission are identical in all

       respects to the initial, unsigned submission. We cannot, then, conclude that the

       trial court abused its discretion when it granted the State’s request to substitute

       its responses to Rondeau’s requests for admissions.


                                      Findings and Conclusions
[19]   Rondeau also challenges the post-conviction court’s decision to permit the State

       to belatedly file its proposed findings and conclusions. The post-conviction

       court in this case granted the State two extensions of the date by which the State

       was required to submit its proposed findings and conclusion. Ultimately, the

       court set a deadline of November 21, 2014, by which the State was to submit its

       proposed findings and conclusions. The State did not submit its proposal until

       December 1, 2014, and Rondeau filed an objection, claiming that the court

       should have deemed the State to be non-responsive. That the post-conviction

       court accepted the filing, Rondeau insists, “gave the State an unfair advantage.”

       (Appellant’s Br. at 11.)


[20]   Rondeau is correct that the State’s submission failed to comply with a deadline.

       But while Rondeau states that the post-conviction court adopted the State’s

       proposed findings and conclusions nearly verbatim, he does not articulate how

       that, or the State’s late submission, prejudiced his substantial rights. Nor does

       Rondeau establish what benefit would have accrued to him had the trial court

       recorded that the State “‘failed to respond’” with a timely filed set of proposed

       findings and conclusions. (Appellant’s Reply Br. at 3.) We accordingly find no
       Court of Appeals of Indiana | Opinion 49A02-1505-PC-427 | January 12, 2016   Page 10 of 24
       reversible error on this point. The same reasoning—that Rondeau has not

       established any prejudice—applies as well to his contention that the State failed

       to properly serve its second motion for an enlargement of time in which to file

       proposed findings and conclusions.


                                                   Subpoenas
[21]   Rondeau’s final contention concerning the court’s conduct of the post-

       conviction proceeding is that the court abused its discretion when it denied his

       requests for the issuance of subpoenas to certain potential witnesses.


[22]   Our Post-Conviction Rules provide, in relevant part:

               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. If the court finds the proposed witness’ testimony
               is not relevant and probative, it shall enter a finding on the record and
               refuse to issue the subpoena.
       Ind. Post-Conviction Rule 1(9)(b).


[23]   Here, Rondeau, proceeding pro se, requested subpoenas for numerous

       witnesses. The post-conviction court granted some of the requests, but denied

       others. The court denied requests to issue subpoenas for Detective Bain; several

       individuals who Rondeau claimed would have testified concerning the

       character of his victim, Adolf Stegbauer; the two physicians who treated

       Rondeau for injuries after his arrest; former Prosecutor Brizzi; a crime scene

       specialist, Matthew Whitt; and two forensic scientists, Sarah Klassen and

       Court of Appeals of Indiana | Opinion 49A02-1505-PC-427 | January 12, 2016       Page 11 of 24
       Tonya Fishburn. Rondeau claims that the post-conviction court’s refusal was

       an abuse of discretion, arguing that (1) with respect to Rondeau’s first set of

       requests for subpoenas, the court failed to comply with Post-Conviction Rule

       1(9)(b)’s provision that a post-conviction court “enter a finding on the record”

       when it does not find that a witness’s testimony would be relevant and

       probative; and (2) the court’s denial of the subpoenas was improper because the

       testimony of each witness would be relevant and probative at the post-

       conviction stage.


[24]   Rondeau is correct that the Post-Conviction Rules require a post-conviction

       court to enter a finding when denying a pro se petitioner’s request for a

       subpoena, and it appears that the court here did not enter such a finding on

       Rondeau’s first request. As with other procedural matters, Rondeau does not

       articulate how the court’s purported error is a basis for reversal of the denial of

       his petition for post-conviction relief. And this Court has previously found no

       reversible error when a post-conviction court has denied a pro se petitioner’s

       request for a subpoena without entering specific findings but “the issues are

       sufficiently presented for review and addressed by the parties.” Pannell v. State,

       36 N.E.3d 477, 487 (Ind. Ct. App. 2015), trans. denied.


[25]   Moreover, we cannot conclude that the post-conviction court abused its

       discretion when it denied Rondeau’s various requests for subpoenas. Post-

       conviction proceedings are not designed to permit attacks on witness credibility,

       but rather to address issues demonstrably unavailable at trial and on direct

       appeal. Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002).

       Court of Appeals of Indiana | Opinion 49A02-1505-PC-427 | January 12, 2016   Page 12 of 24
[26]   Rondeau’s requested subpoenas, though framed as relevant to his claim that

       trial counsel was ineffective, were either not specific enough to establish the

       relevance of the proposed witness’s testimony to the question of ineffectiveness,

       or were relevant only to matters available at trial or direct appeal. Rondeau’s

       requests for subpoenas for testimony from individuals familiar with him and

       Stegbauer provided no information concerning what testimony these witnesses

       might provide. Rondeau’s requests to subpoena Detective Bain pointed to

       inconsistencies in trial testimony of a lead detective compared to information in

       a probable cause affidavit, matters available for inquiry at trial. Rondeau’s

       requests for testimony from forensic scientists and a crime scene specialist

       concerning the State’s decisions on what items to submit for laboratory testing

       bore no apparent connection to the question of trial counsel’s preparation and

       investigation. Rondeau’s request for a subpoena to former Prosecutor Brizzi

       demonstrated no connection to any question related to ineffectiveness of

       counsel, and instead sought testimony concerning an isolated statement to the

       press. Finally, Rondeau’s requests for subpoenas of the physicians who treated

       his injuries at the time of his arrest pertained to matters raised or best raised at

       trial: the specific nature and number of his injuries.


[27]   Because none of these matters properly pertained to Rondeau’s claimed bases

       for post-conviction relief, we find no abuse of discretion in the trial court’s

       denial of the issuance of Rondeau’s requested subpoenas.




       Court of Appeals of Indiana | Opinion 49A02-1505-PC-427 | January 12, 2016   Page 13 of 24
                        Ineffective Assistance of Trial Counsel
[28]   We turn now to Rondeau’s claim that his trial counsel was ineffective.

       Effectiveness of counsel is a mixed question of law and fact. Strickland v.

       Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims

       of ineffective assistance under the two-part test announced in Strickland. Id. To

       prevail on an ineffective assistance of counsel claim, a defendant must

       demonstrate both deficient performance and resulting prejudice. Dobbins v.

       State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687).

       Deficient performance is that which falls below an objective standard of

       reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d

       1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that

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

       the result of the proceeding would have been different. A reasonable

       probability is a probability sufficient to undermine confidence in the outcome.”

       Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.

       1996). The two prongs of the Strickland test are separate and independent

       inquiries. Strickland, 466 U.S. at 697. Thus, “[i]f it is easier to dispose of an

       ineffectiveness claim on the ground of lack of sufficient prejudice … that course

       should be followed.” Id.


[29]   We “strongly presume” that counsel provided adequate assistance and

       exercised reasonable professional judgment in all significant decisions. McCary

       v. State, 761 N.E.2d 389, 392 (Ind. 2002). Counsel is to be afforded

       considerable discretion in the choice of strategy and tactics. Timberlake v. State,

       Court of Appeals of Indiana | Opinion 49A02-1505-PC-427 | January 12, 2016   Page 14 of 24
       753 N.E.2d 591, 603 (Ind. 2001). Isolated mistakes, poor strategy,

       inexperience, and instances of bad judgment do not necessarily render

       representation ineffective. Id. Counsel’s conduct is assessed based upon the

       facts known at the time and not through hindsight. State v. Moore, 678 N.E.2d

       1258, 1261 (Ind. 1997). We do not “second-guess” strategic decisions requiring

       reasonable professional judgment even if the strategy in hindsight did not serve

       the defendant’s interests. Id. In sum, trial strategy is not subject to attack

       through an ineffective assistance of counsel claim, unless the strategy is so

       deficient or unreasonable as to fall outside the objective standard of

       reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).


[30]   Post-conviction proceedings “are not intended and will not operate as a ‘super-

       appeal’ for the convicted.” Ben-Yisrayl v. State, 753 N.E.2d 649, 653 (Ind. 2001).

       Rather, post-conviction proceedings “provide a narrower remedy” for collateral

       challenges to a conviction. Id. To successfully obtain post-conviction relief, the

       petitioner must establish grounds for relief by a preponderance of the evidence.

       Id. Where a petitioner appeals from the denial of a petition for post-conviction

       relief, he stands in the position of one appealing from a negative judgment, and

       on appeal we will consider only the evidence and reasonable inferences from

       the evidence that supports the judgment. Id. To prevail upon appeal, a

       petitioner for post-conviction relief must show that the evidence as a whole

       leads unerringly and unmistakably to a conclusion opposite that reached by the

       post-conviction court. Id.




       Court of Appeals of Indiana | Opinion 49A02-1505-PC-427 | January 12, 2016   Page 15 of 24
[31]   Rondeau advances numerous bases upon which he contends his trial counsel

       was ineffective. We address these in turn.


[32]   Preparation for Trial. A number of Rondeau’s contentions center on his claim

       that counsel was insufficiently prepared for trial, and as a result was ineffective.

       Rondeau argues that counsel was inexperienced and had too large a caseload to

       properly defend the case, did not sufficiently communicate with Rondeau

       before trial, did not interview all of the State’s witnesses before trial, did not

       interview or seek testimony from several of Rondeau’s acquaintances

       concerning Stegbauer’s character, did not hire forensic experts, and did not

       adequately investigate why the State only tested some objects for blood.


[33]   The evidence presented at the post-conviction hearing established that

       Rondeau’s trial counsel had up to thirty five active cases at the time of

       Rondeau’s trial. No evidence was presented, however, that this caseload was

       unreasonably large or that it prevented counsel from preparing for trial. Nor

       did Rondeau adduce any evidence that his trial counsel, who had tried a

       number of cases to juries before representing Rondeau, was so inexperienced as

       to be ineffective—and inexperience is not in itself a necessary basis for post-

       conviction relief. See Timberlake, 753 N.E.2d at 603. Finally, as to

       communication with counsel, Rondeau did not adduce evidence that counsel’s

       failure to conduct a full mock trial or more frequently communicate with

       Rondeau before trial prejudiced him in any way. Rondeau failed to introduce

       evidence on all these points, and the post-conviction court did not err when it

       concluded that he failed to carry his burden of proof.

       Court of Appeals of Indiana | Opinion 49A02-1505-PC-427 | January 12, 2016   Page 16 of 24
[34]   With respect to interviewing all of the State’s witnesses before trial, Rondeau

       does not indicate in his brief how counsel’s failure to do so might have

       prejudiced Rondeau’s case, and Rondeau did not adduce any evidence in that

       regard.


[35]   Rondeau presented evidence concerning trial counsel’s decision not to

       interview potential witnesses with respect to Stegbauer’s character. The core of

       Rondeau’s theory at trial was a self-defense claim. While evidence of a person’s

       character is generally inadmissible to prove action in conformity therewith on a

       particular occasion, see Ind. Evidence Rule 404(a), “witnesses other than the

       defendant should be allowed to provide testimony to corroborate the specific

       prior acts by the victim that a defendant uses to support a claim of self-defense

       on the grounds of reasonable fear.” Littler v. State, 871 N.E.2d 276, 278 (Ind.

       2007) (citing Brand v. State, 766 N.E.2d 772, 782 (Ind. Ct. App. 2002), trans.

       denied). At the post-conviction hearing, Rondeau showed that at least one of

       the four individuals he identified would have been willing to testify at trial if

       requested. Rondeau did not, however, establish how counsel’s decision not to

       adduce that witness’s testimony might have prejudiced the case such that there

       was a reasonable likelihood of a different result at trial had counsel interviewed

       the four individuals Rondeau identified.


[36]   Rondeau further argues that counsel was ineffective for failing to obtain expert

       testimony to challenge one of the State’s expert witnesses, Doctor Joye Carter

       (“Doctor Carter”), on the question of the defensive nature of Stegbauer’s

       wounds. Trial counsel testified at the post-conviction hearing that it appeared

       Court of Appeals of Indiana | Opinion 49A02-1505-PC-427 | January 12, 2016   Page 17 of 24
       during pretrial discovery that Doctor Carter’s testimony would have been

       favorable toward Rondeau’s theory of the case, but that her opinion was

       determined to be different shortly before trial. Upon learning of this, trial

       counsel timely moved for a continuance of the trial, but that motion was

       denied. Moreover, trial counsel twice sought mistrials with respect to

       testimony from this witness, and sought to exclude Doctor Carter’s testimony

       on multiple occasions. All of these motions were denied, the denial of those

       requested remedies was one of the subjects of Rondeau’s appeal, and this Court

       found no reversible error. Trial counsel made a strategic decision of the sort

       that we do not second guess, see Moore, 678 N.E.2d at 1261, and timely sought

       to obtain a remedy that the trial court ultimately denied. We cannot conclude

       that the post-conviction court erred when it did not find counsel ineffective on

       this ground.


[37]   Finally, Rondeau argues that trial counsel was ineffective in failing to seek

       testing of numerous objects from the crime scene for Rondeau’s blood. During

       the post-conviction hearing, Rondeau examined co-counsel at trial and sought

       to elicit testimony that, had additional items been tested, Rondeau’s blood

       would have been found on those items and that this would have lent support to

       the self-defense claim. As trial counsel and co-counsel both observed, evidence

       was introduced at trial that Rondeau had been injured, bolstering Rondeau’s

       theory of the case. Further, our review of the record from the trial disclosed

       that trial counsel cross-examined witnesses concerning what items were and

       were not tested for DNA, and elicited from one witness an acknowledgment


       Court of Appeals of Indiana | Opinion 49A02-1505-PC-427 | January 12, 2016   Page 18 of 24
       that the tests run could not determine that an individual’s DNA was not on an

       item—only that an individual’s DNA was not in the sample tested. (Trial Tr. at

       468-69.) And to the extent that Rondeau contends that trial counsel was

       ineffective in failing to inquire further into inconsistencies between probable

       cause affidavits and witness testimony concerning the location of blood at the

       crime scene, he has failed to establish how his trial theory of self-defense was

       prejudiced.


[38]   Objections at Trial. Rondeau also argues that trial counsel was ineffective

       because of failure to object to testimony at trial that Rondeau characterizes as

       perjury. Beyond the bald assertion on Rondeau’s part that Detective

       Patterson’s testimony concerning the number of injuries Rondeau had—one, or

       two—was perjured, his argument centers upon whether his injuries were

       “documented” by police. (Appellant’s Br. at 31.) The form of documentation

       Rondeau claims as the basis for Detective Patterson’s purportedly perjured

       testimony was Rondeau’s interview with police, the recording and transcript of

       which were both admitted into evidence at trial. Trial counsel had the

       opportunity to conduct cross-examinations of the State’s witnesses on these

       points, and did so. Moreover, Rondeau has failed to establish how the specific

       testimony at issue—whether he had one injury or two—would have established

       any greater likelihood of his success at trial on his self-defense claim, given the

       ten sword wounds identified on Stegbauer’s body. Rondeau thus failed to carry

       his burden on the question of trial counsel’s objections at the post-conviction

       hearing.


       Court of Appeals of Indiana | Opinion 49A02-1505-PC-427 | January 12, 2016   Page 19 of 24
[39]   Jury Instruction. Rondeau also contends that trial counsel was ineffective by

       failing to tender proposed jury instructions on 1) voluntary manslaughter, and

       2) defense of a third person. The theory of Rondeau’s defense at trial was one

       of self-defense, a strategy he agreed to with his attorneys. At the post-

       conviction hearing, Rondeau asked trial counsel why he “failed to tender lesser

       offense instructions.” (P-CR Tr. at 28.) Counsel testified that “after

       consultation with yourself [Rondeau] it was not the path we wanted to go,” and

       that it “was a joint decision between co-counsel, myself and yourself.” (P-CR

       Tr. at 28.) Rondeau now argues that the decision not to seek an instruction on

       sudden heat amounted to ineffectiveness.


[40]   We cannot say that trial counsel’s decision not to seek an instruction on

       voluntary manslaughter warranted post-conviction relief. The evidence before

       the post-conviction court was that this decision was strategic: counsel, together

       with Rondeau, decided on self-defense theory, and an “all or nothing” trial

       strategy is not in itself unreasonable. Autrey v. State, 700 N.E.2d 1140, 1141

       (Ind. 1998); see Sarwacinski v. State, 564 N.E.2d 950, 951 (Ind. Ct. App. 1991)

       (finding no ineffectiveness where counsel pursued a self-defense strategy and

       did not tender an instruction on voluntary manslaughter). We decline

       Rondeau’s request to second-guess trial counsel’s strategy.


[41]   With respect to Rondeau’s claim that counsel was ineffective for failure to

       tender an instruction of defense of a third party, the State observes that the

       likelihood of the success of such an approach was low in light of the fact that

       Rondeau had himself been charged with reckless homicide with respect to the

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       third party, his grandmother. Moreover, the elements of defense of a third

       party are the same as those of self-defense. See I.C. § 35-41-3-2(c) (establishing

       as an affirmative defense the use by a person of “reasonable force against any

       other person to protect the person or a third person from what the person

       reasonably believes to be the imminent use of unlawful force”); Whipple v. State,

       523 N.E.2d 1363, 1367 (Ind. 1988) (treating defense of self and defense of

       others together for purposes of reviewing trial counsel’s refusal to tender

       proposed jury instructions). Rondeau’s self-defense claim was unsuccessful,

       and he has failed to establish that a different outcome was reasonably likely if a

       jury instruction had been given on defense of a third party.


[42]   Speedy trial. Finally, we turn to Rondeau’s claim that trial counsel should have

       filed Rondeau’s requested motion for a speedy trial, and that counsel was

       ineffective in failing to do so. During the pendency of his trial proceedings,

       Rondeau pro se submitted a request for a speedy trial; the trial court did not

       entertain the motion because Rondeau was at that time represented by counsel.

       See Underwood v. State, 722 N.E.2d 828, 832 (Ind. 2000) (holding that “once

       counsel was appointed, Defendant spoke to the court through counsel,” and

       thus the court “was not required to respond to defendant’s request” for a speedy

       trial). Rondeau then requested that his trial counsel file a motion for speedy

       trial; trial counsel did not request a speedy trial.


[43]   The post-conviction court concluded that Rondeau’s claim in this respect was a

       freestanding claim of error available for review upon direct appeal. We agree



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       with Rondeau that his argument was couched as an ineffectiveness of counsel

       question, however, and address it in that light.


[44]   Rondeau’s claim on the speedy trial question boils down to whether a request

       for a speedy trial was part of his “ultimate authority to make certain

       fundamental decisions regarding his … case,” akin to decisions concerning

       whether to plead guilty, waive a jury trial, testify, or take an appeal.

       (Appellant’s Br. at 19.) Rondeau cites no authority for this proposition, instead

       arguing baldly that “[t]he accused has a fundamental right to have a speedy trial

       if he or she wants.” (Appellant’s Br. at 19.) Yet the Indiana Supreme Court

       has observed that it is not per-se ineffectiveness for an attorney not to file a

       motion for discharge under Criminal Rule 4(B), even after filing a speedy trial

       motion. Roseborough v. State, 625 N.E.2d 1223, 1225 (Ind. 1993); Townsend v.

       State, 673 N.E.2d 503, 506-07 (Ind. Ct. App. 1996). Further, Rondeau has

       failed to argue, let alone demonstrate that he was prejudiced by counsel’s

       strategic decision not to file a motion seeking an early trial.


[45]   We accordingly conclude that the post-conviction court did not clearly err when

       it concluded that Rondeau did not receive ineffective assistance of trial counsel.


                    Ineffective Assistance of Appellate Counsel
[46]   We turn now to Rondeau’s final issue on appeal, whether his appellate counsel

       was ineffective. A defendant is entitled to the effective assistance of appellate

       counsel. Stevens v. State, 770 N.E.2d 739, 760 (Ind. 2002). The two-pronged

       standard for evaluating the assistance of trial counsel first enunciated in

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       Strickland is applicable to appellate counsel ineffective assistance claims.

       Bieghler v. State, 690 N.E.2d 188, 192 (Ind. 1997). There are three basic

       categories of alleged appellate ineffectiveness: (1) denying access to an appeal,

       (2) waiver of issues, and (3) failure to present issues well. Id. at 193-95. Here,

       the second category is implicated.


[47]   “To show that counsel was ineffective for failing to raise an issue on appeal thus

       resulting in waiver for collateral review, the defendant must overcome the

       strongest presumption of adequate assistance, and judicial scrutiny is highly

       deferential.” Henley v. State, 881 N.E.2d 639, 645 (Ind. 2008). Upon review,

       the performance prong is evaluated by applying 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 those raised. Id.


[48]   Rondeau contends that his appellate counsel was ineffective because he did not

       argue that trial counsel was ineffective for failure to proffer jury instructions on

       manslaughter and defense of a third party. Here, the question of whether trial

       counsel was ineffective for failing to request certain jury instructions was not

       clearly stronger than those raised by appellate counsel. On direct appeal, three

       issues were raised: whether the trial court abused its discretion when it denied

       trial counsel’s motion for a continuance; whether the trial court abused its

       discretion when it admitted into evidence Rondeau’s purportedly coerced

       statement to police; and whether there was sufficient evidence to sustain

       Rondeau’s conviction in light of his claim of self-defense. None of these were

       successful, and a claim of ineffectiveness of trial counsel was not clearly better

       Court of Appeals of Indiana | Opinion 49A02-1505-PC-427 | January 12, 2016   Page 23 of 24
       than these; indeed, we have above affirmed the post-conviction court’s

       judgment that counsel was not ineffective.


[49]   We accordingly find no error in the post-conviction court’s conclusion that

       Rondeau’s appellate counsel was not ineffective.



                                                Conclusion
[50]   Rondeau has failed to establish bias on the part of the post-conviction court.

       The post-conviction court did not abuse its discretion with respect to various

       aspects of post-conviction proceedings. The post-conviction court did not err

       when it concluded that Rondeau did not receive ineffective assistance of trial

       counsel and appellate counsel.


[51]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




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