                                                                 Aug 15 2013, 5:29 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
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

WILLIAM D. POLANSKY                              JODI KATHRYN STEIN
Deputy Public Defender                           Deputy Attorney General
Indianapolis, Indiana                            Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

WILLIAM D. CORNETT,                              )
                                                 )
       Appellant-Petitioner,                     )
                                                 )
              vs.                                )      No. 82A01-1302-PC-59
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Respondent.                      )


               APPEAL FROM THE VANDERBURGH SUPERIOR COURT
                      The Honorable Mary Margaret Lloyd, Judge
                           Cause No. 82D02-0706-FB-546
                            Cause No. 82D03-1002-PC-1



                                      August 15, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Following a jury trial, the appellant-petitioner, William D. Cornett, was convicted

of Robbery,1 a class B felony. After this court affirmed Cornett’s conviction on direct

appeal, he filed a petition for post-conviction relief, claiming that both trial and appellate

counsel were ineffective.       Cornett argued that his trial counsel’s performance was

deficient and prejudiced him because there was no objection at trial to the admission of

an air pistol that the State offered into evidence at trial. Cornett also claims that his

appellate counsel was ineffective because he did not challenge the sufficiency of the

evidence on direct appeal.

          We conclude that had trial counsel objected to the admission of the air pistol, the

objection would not have been sustained because the State laid an adequate foundation

establishing the pistol’s relevance in this case that connected Cornett to the robbery.

Thus, the post-conviction court properly determined that Cornett’s trial counsel was not

ineffective on this basis.

          We further conclude that Cornett’s appellate counsel was not ineffective for not

challenging the sufficiency of the evidence on direct appeal. In light of the victim’s

testimony that Cornett pointed a black, semi-automatic pistol that looked like a real gun

at him during the robbery, we would not have reweighed the evidence or judged the

credibility of the witness.      Cornett’s appellate counsel made a reasonable, strategic

decision not to raise a sufficiency issue. As a result, we affirm the denial of Cornett’s

petition for post-conviction relief.
1
    Ind. Code § 35-42-5-1.

                                               2
                                            FACTS

         The facts regarding Cornett’s underlying robbery conviction are set forth in our

memorandum decision in Cornett’s direct appeal:

         At approximately 10:30 p.m. on June 9, 2007, Derek Tines was working at
         the Bonker’s convenience store in Vanderburgh County. As Tines stood
         outside, preparing to smoke a cigarette, Cornett pulled up. Cornett, who
         was wearing a camouflage shirt and a baseball cap with an “O” on it,
         followed Tines into the store, and then said, “[G]ive me the money.” Tr. p.
         40. Cornett removed what appeared to be a gun and pointed it at Tines, and
         Tines handed Cornett most of the money from the cash register. Cornett
         reached over and took the approximately $50 that remained in the drawer
         and left the store.

         Later that night, police showed Tines a person they had apparently detained
         nearby and asked if he was the robber. Tines responded in the negative.
         Eventually, police showed Tines two photo arrays, each containing six
         photographs, the first soon after the robbery and the second a few days
         later. Tines did not identify any of the persons pictured in the first array as
         his assailant but identified Cornett as the robber from the second. Cornett’s
         photograph was included in the second array apparently as the result of an
         anonymous tip. When police executed a search warrant for Cornett’s
         automobile and home, they found an air pistol underneath the spare tire in
         the trunk of Cornett’s automobile, a beige baseball cap with an “O” on the
         front underneath the front seat, and a camouflage shirt in Cornett’s home.

Cornett v. State, No. 82A01-0803-CR-130, memo op. at 2-3 (Ind. Ct. App. Dec. 30,

2008).

         As a result of the incident, Cornett was charged with class B felony robbery and

with being a habitual offender. During Cornett’s three-day jury trial that commenced in

January 2008, the State introduced the air pistol into evidence during Evansville

Detective Ben Gentry’s testimony. Cornett’s counsel did not challenge the admissibility

of the pistol.

                                               3
       Tines testified that Cornett pulled out a black semi-automatic handgun during the

robbery and pointed it at him with his left hand while demanding money.              Tines

acknowledged that he did not know much about guns and testified that the pistol “might”

have been a “play gun.” Tr. p. 75-76. However, on re-direct examination, Tines testified

that he thought it was a “real gun.” Id. at 78.

       When the police discovered the handgun inside the spare tire wheel well of

Cornett’s vehicle, the jury saw that the pistol resembled Detective Spaulding’s semi-

automatic handgun. Tines identified Cornette’s pistol as that type of gun.

       Following the presentation of the evidence, Cornett was found guilty of robbery

and pleaded guilty to being a habitual offender. Cornett was subsequently sentenced to

fifteen years of incarceration that was enhanced by ten years on the habitual offender

count, for an aggregate term of twenty-five years. Cornett directly appealed to this Court,

and we affirmed Cornett’s conviction in an unpublished memorandum decision. Cornett

v. State, No. 82A01-0803-CR-130, 900 N.E.2d 508, memo. op. at 1 (Ind. Ct. App. Dec.

30, 2008). On direct appeal, Cornett’s counsel raised the following issues: 1) admission

of anonymous tip evidence during the opening statement; 2) ex parte communications

with the jury; 3) admission of the videotape of the robbery; and 4) final instructions. We

affirmed Cornett’s conviction for class B felony robbery. Memo op. at 11.




                                              4
          On August 21, 2012, Cornett filed an amended petition for post-conviction relief,2

alleging that Ivan Arnaez,3 who served as both Cornett’s trial and appellate counsel, was

ineffective for failing to object to the admission of the pellet gun into evidence and for

failing to challenge the sufficiency of the evidence on direct appeal regarding possession

of a deadly weapon.

          The post-conviction court held a hearing on Cornett’s request for relief on October

19, 2012. At the post-conviction hearing, Arnaez testified:

          When I sit down to look at a case I’m looking [at] what can I do to win at
          trial and only to win at trial. I’m not looking for appeal purposes. I’m
          looking to win and . . . as I was studying the case nothing jumped out at me
          that would say we have a good Motion to Suppress ground otherwise I
          would have done it.

Tr. p. 7.

          Arnaez also testified that

          [H]ere in Vanderburgh County if your case is depending on a foundation
          you’ve already lost it because it goes to the weight of the evidence. . . .
          Now the question on the gun on a foundational issue was this. The
          question was what was it because they have to prove it was a deadly
          weapon. If we have a plastic gun it doesn’t matter how many times he hit a
          person with a plastic gun, you’re not going to do anything to them. If we
          have a metal gun then we have a deadly weapon. If we have a firearm then
          we have a deadly weapon as a matter of law. So my strategy in the entire
          case was to get the jury confused enough so that they could not establish
          what the person who committed the crime actually used and now that’s the
          way I saw it but I did not see any other reason to try and keep the gun out


2
    Cornett filed his original pro se petition for post-conviction relief on February 1, 2010.


3
 Cornett was represented on appeal by both Ivan Arnaez and John Clouse, but Arnaez testified that the
appellate brief was his work product.
                                                        5
      other than to confuse them. . . . I thought [an objection] would be a waste of
      time.

Id. at 8-9 (emphasis added).

      In explaining the reasons for selecting other issues over a challenge to the

sufficiency of the evidence, Arnaez stated:

      The guy wants to walk out of jail so you have to raise issues that might get
      him a reversal, try to get him back into Court for a second bite at the apple,
      try to get him back into Court on something else or to get a reversal where
      he can’t go back. Now I put the issues I thought that gave us the best
      chance of doing that. I wasn’t going to waste paper, you don’t have that
      much paper to do these things, with issues I thought were not good.

Id. at 17. Summarizing his explanations, Arnaez responded affirmatively when asked

about whether he “examined all the issues and whittled them down to the ones [he]

thought would be the mostly likely to succeed [on] appeal.” Id. at 19.

      The post-conviction court took the matter under advisement, and on January 22,

2013, it denied Cornett’s petition for post-conviction relief. In particular, the post-

conviction court determined that

      9. Besides testimony by at least three (3) witnesses, the State offered and
      the Court admitted without defense objection, State’s Exhibit 68, a black
      pellet gun recovered by police from Petitioner’s vehicle. Indiana law
      provides the following guidance regarding admissibility of physical
      evidence:

      To be admissible into evidence, an exhibit must be relevant and material. It
      must be shown that the exhibit was authentic and bears some relevance to
      this defendant and the transaction from which the criminal charge arises.
      The trial court has discretion to admit exhibits into evidence, and need not
      require absolute and positive identification; admission may be proper even
      where there is only a slight tendency to connect the defendant with the


                                              6
offense. Lack of positive proof or authentication reflects only . . . the
weight of the evidence, not its admissibility.

10. The Court agrees with Attorney Arnaez’s testimony at the post-
conviction hearing that if he had objected to admission of the pellet gun, the
Court would not have sustained his objection. At the time of this
evidentiary offer, the Court had already heard testimony that the gun was
recovered from Petitioner’s vehicle shortly after the date of the robbery,
and that it was similar in description to the gun Tines saw during the
robbery, even though Tines never specifically testified that Exhibit 68 was
the same gun pointed at him during the robbery. Because, as the Court
explained in overruling the defendant’s Motion for Directed Verdict, since
there existed at least a slight tendency or a “scintilla” of evidence linking
Exhibit 68 to the robbery, the gun was admissible for the jury to then
determine how much weight to assign to the evidence. . . . The Court does
not find Attorney Arnaez’s performance deficient, nor find that the defense
was prejudiced in any way, based upon counsel’s failure to make an
objection the Court would have overruled.

11. Because Arnaez testified that he made a strategic choice to argue other
issues instead of sufficiency of the evidence because he thought that
sufficiency of the evidence would not have been [a] successful issue on
appeal, the Court must determine whether this choice was unquestionably
unreasonable.
                                       ...
13. [A]s noted above, the State was required to present sufficient evidence
for a jury to find that Petitioner used a deadly weapon in commission of the
robbery. I.C. § 35-42-5-1(1). Although not firearms per se, pellet guns can
be considered deadly weapons. . . . [T]he State had only to provide
sufficient evidence that Petitioner used an item that appeared to be a gun or
that the victim believed to be a gun, rather than positive identification of the
specific gun. The jury was presented with eyewitness testimony from Tines
describing the gun, the store surveillance video and still photographs,
Detective Gentry’s testimony about the location and timing of the gun’s
recovery, and Detective Spalding’s testimony regarding her interview with
Tines, along with the gun itself. It was within the jury’s province to
determine, based upon the entire circumstances presented, that Petitioner
used a “deadly weapon” as defined by Indiana law.

14. [A]rguing sufficiency of the evidence upon appeal would not likely
have been successful, as Attorney Arnaez testified during the post-

                                       7
        conviction hearing. In applying the presumption that trial counsel provided
        effective assistance, the court cannot find that it was “unquestionably
        unreasonable” for Arnaez to argue on appeal other issues he determined to
        be more damaging to Petitioner’s case. Consequently, the Court finds that
        Petitioner has not met his burden of proof in order to establish ineffective
        assistance of appellate counsel.

Appellant’s App. p. 124-127. Cornett now appeals.

                             DISCUSSION AND DECISION

                                  I. Standard of Review

        Because post-conviction proceedings are civil proceedings, the petitioner bears the

burden of establishing grounds for relief by a preponderance of the evidence. Ben-

Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000); see also Ind. Post-Conviction Rule

1(5).   Because the post-conviction court denied relief, Cornett is appealing from a

negative judgment and faces the rigorous burden of showing “that the evidence as a

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

[post-conviction] court.” Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).

        Post-conviction proceedings do not offer a “super-appeal.” Wilkes v. State, 984

N.E.2d 1236, 1240 (Ind. 2013). Rather, post-conviction challenges are reserved for those

issues not known at the time of trial or not available on direct appeal. Id. 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.


                                             8
                                   II. Cornett’s Claims

                                    A. Trial Counsel

       Cornett claims that he was denied the effective assistance of trial counsel because

there was no objection to the admission of the pellet gun. Cornett claims that his trial

counsel should have objected to the gun’s admission on relevancy grounds because “the

State did not lay a proper foundation for the admission of the pellet gun into evidence.”

Appellant’s Br. p. 11.

       In resolving this issue, we apply the two-part test articulated in Strickland v.

Washington, 466 U.S. 668 (1984). Lawrence v. State, 464 N.E.2d 1291, 1294 (Ind.

1984). The petitioner must first establish that counsel’s performance was deficient.

Strickland, 466 U.S. at 687. It must be shown that counsel’s representation fell below an

objective standard of reasonableness and that the errors were so serious that they resulted

in a denial of the right to counsel guaranteed to the defendant by the Sixth and Fourteenth

Amendments. Id. This showing must overcome the strong presumption that counsel

rendered adequate legal assistance. Id.

       Second, the petitioner must show that the deficient performance resulted in

prejudice. Id. To establish prejudice, it must be demonstrated that there is a reasonable

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

would have been different. Id. at 694. A reasonable probability is a probability sufficient

to undermine confidence in the outcome. Id. If a claim of ineffective assistance of



                                            9
counsel can be disposed of by analyzing the prejudice prong, we will do so. Wentz v.

State, 766 N.E.2d 351, 360 (Ind. 2002).

       We also note that before a trial counsel’s failure to object may constitute

ineffective representation, a petitioner must show that had the objection been made, the

trial court would have sustained it. Oglesby v. State, 515 N.E.2d 1082, 1084 (Ind. 1987).

The petitioner must also establish that prejudice resulted as a result of trial counsel’s

failure to properly object. Timberlake v. State, 690 N.E.2d 243, 259 (Ind. 1997).

       In this case, Cornett’s trial counsel testified that he believed that an objection to

the pellet gun’s admission would have been overruled. Also, trial counsel did not want to

draw attention to the pistol. Tr. p. 8-9. We agree with the post-conviction court’s

determination that Cornett failed to show that an objection to the admission of the air

pistol would have been sustained.         More specifically, the State laid an adequate

foundation establishing that the air pistol was relevant to the charged offense.

Appellant’s App. p. 124-25.

       Relevant evidence is defined as “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Ind. Evid. Rule 401.

It has also been established that in order to be “relevant,” the evidence at issue “need only

have some tendency, however slight, to make the existence of a material fact more or less

probable, or tend to shed any light upon the guilt or innocence of the accused.” Smith v.

State, 982 N.E.2d 393, 402 (Ind. Ct. App. 2013). Moreover, our Supreme Court has

                                             10
observed that “to be properly admissible, real evidence need only constitute a small but

legitimate link in the chain of evidence connecting the defendant with the crime.”

Malone v. State, 700 N.E.2d 780, 782 (Ind. 1998); see also Garrett v. State, 602 N.E.2d

139, 142 (Ind. 1992) (observing that the lack of positive proof that a particular shotgun

presented in fact was the one used in the shooting goes to the weight of the evidence and

not admissibility).

       In this case, Tines testified that Cornett’s pistol appeared to be a black semi-

automatic handgun. Tr. p. 40, 43-44, 171. And when Detective Spaulding showed Tines

her semi-automatic handgun, Tines stated that Cornett’s handgun looked “similar to that

design.” Id. at 171. Detective Spaulding displayed her semi-automatic handgun to the

jury as an example of the design of the gun that Cornett used. Id.

       The air pistol that the police recovered from the spare tire wheel well in the trunk

of Cornett’s vehicle was black and resembled a semi-automatic handgun. Tr. p. 148-50.

That gun matched Tines’s description of the handgun that Cornett used during the

robbery. Thus, there were reasonable inferences that connected the air gun discovered in

Cornett’s vehicle with the handgun that Cornett used during the robbery. And the lack of

actual proof that this was indeed the gun used in the robbery only affected the weight of

the evidence. Garrett, 602 N.E.2d at 142.     Therefore, trial counsel was not ineffective

for arguing to the jury that it should disregard the notion that the air pistol was not

connected to the robbery. Tr. p. 269. Put another way, the post-conviction court properly



                                            11
found that Cornett’s trial counsel was not deficient for failing to object to the admission

of the air pistol.

                                    B. Appellate counsel

         Cornett also claims that his appellate counsel was ineffective because he failed to

argue on direct appeal that the State did not present sufficient evidence establishing that

the gun Cornett used in the robbery was, in fact, a deadly weapon. Thus, Cornett

maintains that his conviction should be reduced to a class C felony.

         In resolving this issue, we note that the same standard of review that applies to

claims of ineffective assistance of trial counsel also applies to claims of ineffective

assistance of appellate counsel. Burnside v. State, 858 N.E.2d 232, 238 (Ind. Ct. App.

2006).     Additionally, we have determined that there are three basic categories of

ineffective assistance of appellate counsel: (1) denying access to an appeal; (2) failing to

raise an issue on appeal; (3) and failing to present an issue completely and effectively.

Bieghler v. State, 690 N.E.2d 188, 193-95 (Ind. 1997).

         As noted above, Cornett contends that his appellate counsel was deficient for not

challenging the sufficiency of the evidence on direct appeal. To prevail on this claim,

Cornett must demonstrate that the unraised issue was significant, obvious, and “clearly

stronger” than the issues that were raised. Id. at 194. Our Supreme Court has observed

that

         [w]hen a petitioner claims the denial of effective assistance of appellate
         counsel because counsel did not raise issues the petitioner argues should
         have been raised, reviewing courts should be particularly deferential to

                                             12
       counsel’s strategic decision to exclude certain issues in favor of others,
       unless such a decision was unquestionably unreasonable. But this does not
       end our analysis. Even if we determine that counsel’s choice of issues was
       not reasonable, a petitioner must demonstrate a reasonable probability that
       the outcome of the direct appeal would have been different in order to
       prevail.

Taylor v. State, 840 N.E.2d 324, 338 (Ind. 2006) (internal citations omitted).

       Deciding which issues to raise on appeal is one of the most important strategic

decisions of appellate counsel. Bieghler, 690 N.E.2d at 193.      Ineffective assistance of

appellate counsel is very rarely found in cases where a defendant asserts that appellate

counsel did not raise an issue on direct appeal. Reed v. State, 856 N.E.2d 1189, 1196

(Ind. 2006).

       Turning to the circumstances here, we initially observe that it was not necessary to

introduce the actual weapon into evidence that was used in the robbery. Gorman v. State,

968 N.E.2d 845, 850-51 (Ind. Ct. App. 2012). Indeed, a victim’s testimony that he or she

saw the defendant use what he “figured” was a gun is, by itself, sufficient proof of the use

of a deadly weapon. Id.

       Even in light of accusations that the gun Cornett pulled on Tines may have only

been a plastic toy, Tines testified that he believed it was a real handgun. Tr. p. 78. This

testimony, along with the corroborating evidence established by the videotape, was

sufficient for the jury to conclude that Cornett was armed with a handgun during the

robbery. See Williams v. State, 983 N.E.2d 661, 669-70 (Ind. Ct. App. 2013) (observing

that the witness’s testimony that the defendant was armed with a gun was sufficient to


                                            13
support the defendant’s conviction of carrying a handgun without a license). As in

Gorman, we would reject Cornett’s invitation on direct appeal to judge Tines’s credibility

and reweigh the evidence, had the issue been presented.

       In sum, our review of the record demonstrates that Cornett’s appellate counsel

thoroughly weighed all of the possible issues that Cornett could have presented on appeal

and reasonably believed that a challenge to the sufficiency of the evidence had little

chance of success in light of the deferential standard of review to which such a claim

would be subjected. Therefore, Cornett’s appellate counsel’s decision to not challenge

the sufficiency of the evidence was an exercise of reasonable professional judgment.

Thus, the post-conviction court properly denied Cornett’s request for relief.

       The judgment of the post-conviction court is affirmed.

FRIEDLANDER, J., and VAIDIK, J., concur.




                                            14
