Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                        Apr 23 2014, 10:16 am
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.


APPELLANT PRO SE:                               ATTORNEYS FOR APPELLEE:

TIMOTHY ROBERTSON                               GREGORY F. ZOELLER
Carlisle, Indiana                               Attorney General of Indiana

                                                KARL M. SCHARNBERG
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

TIMOTHY ROBERTSON,                              )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )      No. 27A02-1307-PC-646
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Respondent.                     )


                    APPEAL FROM THE GRANT SUPERIOR COURT
                         The Honorable Jeffrey D. Todd, Judge
                            Cause No. 27D01-0803-FB-22



                                      April 23, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Appellant-petitioner Timothy Robertson appeals the denial of his petition for post-

conviction relief. Robertson makes several arguments in his appeal, arguing that he

received ineffective assistance of counsel when trial counsel did not request a Franks

hearing,1 depose or call Sergeant Warland Artis, request a mistrial, or request an expert to

refute the State’s identification claims based on the surveillance video. Robertson also

alleges that he received ineffective assistance of counsel because trial counsel advised

him to enter a guilty plea regarding his habitual offender charge and failed to raise a

double jeopardy objection based on his sentence enhancement and the habitual offender

enhancement. Robertson also claims that he received ineffective assistance of counsel

when his appellate counsel failed to raise the sufficiency of the evidence underlying the

habitual offender finding.

          Additionally, Robertson contends that the post-conviction court showed bias when

it ruled in the State’s favor on his post-conviction relief petition even though the State

filed no findings of fact or conclusions of law. Robertson further argues that the post-

conviction court failed to address all the issues Robertson raised at his post-conviction

hearing. We conclude that Robertson was not denied effective assistance of trial or

appellate counsel and affirm the denial of his petition for post-conviction relief.




1
    Franks v. Delaware, 438 U.S. 154 (1978).

                                               2
                                            FACTS

          On March 3, 2008, Robertson was charged with armed robbery as a class B

felony,2 battery as a class B misdemeanor,3 and as an habitual offender.4 Robertson’s

three-day jury trial began on June 28, 2010. The jury found Robertson guilty as charged,

and Robertson admitted to being an habitual offender. On July 28, 2010, the trial court

sentenced Robertson to twenty years on the robbery conviction enhanced by thirty years

on the habitual offender finding to be served concurrent to 180 days on the battery

conviction.        Robertson appealed to this court, arguing that the trial court erred in

admitting testimony, by a police officer and a probation officer, that Robertson was the

robber in a surveillance video.

          On March 31, 2011, in an unpublished decision, we affirmed Robertson’s

convictions. Robertson v. State, No. 27A02-1008-CR-929, memo op. (Ind. Ct. App.

March 31, 2011). On January 26, 2012, Robertson filed a pro se petition for post-relief

conviction. On April 20, 2012, a deputy public defender filed an appearance on

Robertson’s behalf, but on August 3, 2012, the public defender withdrew her appearance

under Post-Conviction Rule 1(9)(c).5        On March 11, 2013, Robertson filed another

amended pro se petition for post-conviction relief.



2
    Ind. Code § 35-42-5-1
3
    I.C. § 35-42-2-1
4
    Ind. Code § 35-50-2-8
5
    Post-Conviction Rule 1(9)(c) states,
                                               3
       In his amended petition for post-conviction relief, Robertson raised three issues:6

1) Whether Robertson’s trial counsel, Bruce Elliott, was ineffective for failing to request

a Franks hearing; 2) whether trial counsel was ineffective for failing to call Sergeant Artis

and Anthony Newell, witnesses Robertson believed would state he was not the person in

the surveillance video, as witnesses in his defense; and 3) whether David Payne, appellate

counsel, failed to provide effective assistance of counsel when he did not raise a

sufficiency of the evidence argument regarding the evidence underlying the habitual

offender charge.

       On April 25, 2013, the trial court held an evidentiary hearing. At the hearing,

Elliott testified that his decisions relating to representation were strategic and were

discussed with Robertson. He did not request a Franks hearing because he believed there

were no grounds to make the request. Additionally, Elliott testified that he did not call

Sergeant Artis or Newell to testify because, contrary to Robertson’s belief that they

would provide exculpatory evidence concerning the surveillance video, neither witness


       [c]ounsel shall confer with petitioner and ascertain all grounds for relief under this rule,
       amending the petition if necessary to include any grounds not included by petitioner in
       the original petition. In the event that counsel determines the proceeding is not
       meritorious or in the interests of justice, before or after an evidentiary hearing is held,
       counsel shall file with the court counsel's withdrawal of appearance, accompanied by
       counsel’s certification that 1) the petitioner has been consulted regarding grounds for
       relief in his pro se petition and any other possible grounds and 2) appropriate
       investigation, including but not limited to review of the guilty plea or trial and sentencing
       records, has been conducted. Petitioner shall be provided personally with an explanation
       of the reasons for withdrawal. Petitioner retains the right to proceed pro se, in forma
       pauperis if indigent, after counsel withdraws.”
6
 Robertson failed to include his petition for post-conviction relief and the amended petition for post-
conviction relief. We have gleaned these issues from the findings of fact and conclusions of law issued
by the post-conviction court.
                                                    4
would offer testimony favorable to Robertson. Robertson also called Lieutenant Faw and

Sergeant Artis to testify at the evidentiary hearing. They did not present any evidence

favorable to Robertson on any of the three issues raised.

       Finally, Elliott testified that he did advise Robertson that it would be futile to

contest the habitual offender enhancement because the State was able to meet its burden

of proof and denied Robertson’s allegation that he had told Robertson that pleading guilty

to the charge would cause the trial judge to act leniently.

       On May 17, 2013, Robertson filed his proposed findings of fact and conclusions

of law. On July 5, 2013, the post-conviction court denied Robertson’s request for post-

conviction relief, and on July 8, 2013, the post-conviction court filed an amended

findings of fact and conclusions of law regarding Robertson’s petition.        The post-

conviction court found that neither Elliott nor Payne provided ineffective assistance of

counsel as argued by Robertson.

       Robertson now appeals.

                             DISCUSSION AND DECISION

                I. Standard of Review—Post Conviction Relief, Generally

       A post-conviction relief proceeding does not afford a petitioner a super-appeal.

Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001).            Rather, post-conviction

proceedings afford petitioners a limited opportunity to raise issues that were unavailable

or unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind.

2002). A post-conviction petitioner bears the burden of establishing grounds for relief by

                                              5
a preponderance of the evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). To

prevail on appeal from the denial of post-conviction relief, the petitioner must show that

the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that

reached by the post-conviction court. Id. at 643-44.

       Where, as here, the post-conviction court makes findings of fact and conclusions

of law in accordance with Indiana Post–Conviction Rule 1(6), we cannot affirm the

judgment on any legal basis, but rather, must determine if the court’s findings are

sufficient to support its judgment. Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct.

App. 2011). We will not reweigh the evidence or judge the credibility of witnesses, and

will consider only the probative evidence and reasonable inferences flowing therefrom

that support the post-conviction court’s decision. Id.

                                     II. Robertson’s Claims

                      A. Ineffective Assistance of Counsel – Trial Counsel

       Robertson claims that trial counsel failed to provide effective assistance of

counsel. Our Supreme Court has instructed:

       A defendant claiming a violation of the right to effective assistance of
       counsel must establish the two components set forth in Strickland v.
       Washington, 466 U.S. 668 (1984). First, the defendant must show that
       counsel's performance was deficient. This requires a showing 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 the defendant by the Sixth Amendment. Second, the
       defendant must show that the deficient performance prejudiced the defense.
       To establish prejudice, a defendant must show that there is a reasonable
       probability that, but for counsel’s unprofessional errors, the result of the


                                             6
       proceeding would have been different. A reasonable probability is a
       probability sufficient to undermine confidence in the outcome.

       Counsel is afforded considerable discretion in choosing strategy and tactics,
       and we will accord those decisions deference. A strong presumption arises
       that counsel rendered adequate assistance and made all significant decisions
       in the exercise of reasonable professional judgment. The Strickland Court
       recognized that even the finest, most experienced criminal defense
       attorneys may not agree on the ideal strategy or the most effective way to
       represent a client. Isolated mistakes, poor strategy, inexperience, and
       instances of bad judgment do not necessarily render representation
       ineffective. The two prongs of the Strickland test are separate and
       independent inquiries. 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.

Timberlake v. State, 753 N.E.2d at 603.

       Robertson raises six separate claims of ineffective assistance of trial counsel, each

of which we will address in turn.

       First, Robertson argues that his trial counsel was ineffective for failing to request a

hearing under Franks v. Delaware, 438 U.S. 154 (1978). Franks held that:

       where the defendant makes a substantial preliminary showing that a false
       statement knowingly and intentionally, or with reckless disregard for the
       truth, was included by the affiant in the warrant affidavit, and if the
       allegedly false statement is necessary to the finding of probable cause, the
       Fourth Amendment requires that a hearing be held at the defendant’s
       request.

438 U.S. at 155-156.      At the post-conviction relief hearing, Robertson argued that

Lieutenant Faw intentionally omitted details from his testimony at the probable cause

hearing. PCR Tr. p. 81. The post-conviction court found that, while Robertson did

establish that Lieutenant Faw was the only officer to testify at the probable cause hearing,


                                              7
he “elicited no testimony from Faw that remotely suggested a Franks hearing was

warranted,” and that “Robertson provided no other evidence to support his claim that

Elliottt erred by not requesting a Franks hearing.” Appellant’s App. p. 9.

       All the evidence at the post-conviction relief hearing establishes that Elliott did not

have cause to request a Franks hearing. Elliott testified that he did not request a Franks

hearing because he did not believe he had “sufficient information or evidence to support

such a hearing.” PCR Tr. p. 34. Additionally, Lieutenant Faw testified that he never

intentionally provided false information at the probable cause hearing, that he did not

intentionally leave out relevant information, and that he provided all the information he

believed to be relevant to the case. Id. at 82.

       Robertson failed to make a substantial preliminary showing that a false statement

knowingly and intentionally, or with reckless disregard for the truth, was included by

Lieutenant Faw as the rule in Franks requires. Thus, Elliott had no cause to request a

Franks hearing, and Robertson has failed to show that Elliot was ineffective on this basis.

       Next, Robertson alleges that Elliott provided ineffective assistance of counsel

when he did not call two witnesses Robertson believed would testify in his defense at

trial. Robertson asserts that Elliott should have called Sergeant Artis and his friend

Newell. Appellant’s App. p. 7. For the purposes of analyzing a claim of ineffective

assistance of counsel, counsel’s decision regarding what witness to call is a matter of trial

strategy, which an appellate court will not second-guess. Johnson v. State, 832 N.E.2d



                                              8
985, 1003 (Ind. Ct. App. 2005); see also Wrinkles v. State, 749 N.E.2d 1179, 1200 (Ind.

2009) (Stating that “which witnesses to call is the epitome of a strategic decision.”).

       Elliott testified that his decision not to call Sergeant Artis or Newell was strategic.

PCR Tr. p. 40. While Robertson believed that the two men would be favorable witnesses

and would deny that he was the individual in a surveillance video, he was incorrect. Both

Sergeant Artis and Newell told Elliot that they would testify that Robertson was indeed

the man in the surveillance video. Id. at 40-41. Moreover, Elliott did call a witness, Billy

Smith, who testified that Robertson was not the man in the video. Id. at 41. Under these

circumstances, we cannot say that Elliott was ineffective.

       Robertson also contends that Elliott provided ineffective assistance of counsel

when he failed to request a mistrial after the trial court issued an admonishment that did

not accurately reflect Lieutenant Faw’s testimony.        The exchange in question is as

follows:

       Q: Alright, An’ was there anything that you were attempting to do as these

       pictures were selected to be put on the page?

       A: No. I actually called the jail. . .

       MR. ELLIOTT: Objection, Your Honor. Can we approach?

Tr. p. 13. Following this exchange, the trial court held a bench conference, during which

Elliott asked for an admonishment regarding the implication that Robertson had spent

time in jail. The trial court agreed to provide such an admonishment and told the jury to

“disregard the witness’s last answer which I believe was a one word answer of yes.” Id.

                                                9
at 315. Robertson asserts that Elliott should have asked for a mistrial when the trial court

incorrectly identified the statement made by Lieutenant Faw.

       At the outset, we note that it does not appear that Robertson raised this issue in his

post-conviction relief petition, and, therefore, he has waived consideration of this issue.

Issues not raised in the post-conviction relief petition may not be raised for the first time

on post-conviction appeal. Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001).

       Waiver notwithstanding, Elliott was not ineffective for failing to request a mistrial,

because his decision was strategic. Elliott testified that he believed that the trial court’s

admonishment “adequately protected” Robertson and chose not to object again, as he

believed it would only call further jury attention to the matter if the court were to use the

word jail. PCR. Tr. p. 37-38. Furthermore, the trial court was unlikely to grant a mistrial

for one mention of the word jail. See Lucio v. State, 907 N.E.2d 1008 (Ind. 2009)

(stating that the remedy of a mistrial is “extreme strong medicine that should only be

prescribed when no other action can be expected to remedy the situation at the trial

level.”). Elliott determined that, under the circumstances, the best strategy was to avoid

drawing further attention to the word jail.

       Next, Robertson claims that Elliott failed to provide effective assistance of counsel

when he advised him to enter a guilty plea regarding his habitual offender charge.

According to Robertson, Elliott told him that the trail court would show lenience at

sentencing if he agreed to plead guilty to the habitual offender count. Once again, we



                                              10
note that Robertson has waived this claim, as it does not appear that he raised it in his

PCR petition. Allen, 749 N.E.2d at 1171.

       Waiver notwithstanding, Robertson failed to show that Elliott promised him that

the judge would offer leniency if he pleaded guilty on that count. As noted above, a post-

conviction petitioner bears the burden of establishing grounds for relief by a

preponderance of the evidence. Henley, 881 N.E.2d at 643.


       At the evidentiary hearing, Elliott testified that he had never promised or

suggested to Robertson that the trial court would show leniency if Robertson pleaded

guilty to the habitual offender charge. PCR Tr. p. 44. Elliott testified that he did not tell

Robertson that it would be in his best interest to plead guilty, but rather, that he suggested

that Robertson plead guilty because “they’re gonna be able to prove their case.” Id. The

only evidence Robertson presented in favor of his claim that Elliottt promised him the

trial court would be lenient was his own unsupported allegation. Id. This led the trial

court to issue a finding, as a matter of fact, that Elliottt did not make any promise of

leniency when advising Robertson to plead guilty to the habitual offender charge, and

leads us to find that Robertson did not show that Elliott provided ineffective assistance of

counsel when advising him in the matter. Appellant’s App. p. 5.

       Robertson also contends that trial counsel was ineffective for failing to use an

expert to contest witnesses’ identification of Robertson in the surveillance video. Once




                                             11
again, we note that it appears Robertson did not raise this issue in his post-conviction

petition and has, therefore, waived it. Allen, 749 N.E.2d at 1171.

       Waiver notwithstanding, Robertson presented no evidence that the lack of an

expert prejudiced him in any way.

       When, at the post-conviction hearing, Elliott was asked if he felt there was any

area where he believed that his “performance fell below professional standards,” he

stated that he did wish that he had retained an expert on identification but that it was his

“thinking that strategically I could handle that during cross-examination and voir [dire],

and argument at closing.” PCR Tr. p. 49-50. Moreover, Elliott testified that he was

unsure the court would grant a request for expert testimony, and that he based his

decision not to obtain an expert on Robertson’s incorrect assertions that there were three

witnesses who would testify that Robertson was not the individual in the surveillance

video. Id. at 50. Additionally, Elliott did call Billy Smith to testify that Robertson was

not the man in the video. Id. at 41.

       Elliott’s decision not to retain an expert for identification was a reasonable and

strategic one, which we will not second-guess. See State v. Moore, 678 N.E.2d 1258,

1261 (Ind. 1997). (Stating that “finally, although egregious errors may be grounds for

reversal, we do not second-guess strategic decisions requiring reasonable professional

judgment even if the strategy or tactic, in hindsight, did not serve the defendant’s

interest.”).



                                            12
       Finally, Robertson argues that Elliott was ineffective for failing to object to his

sentence on double jeopardy grounds.        More particularly, Robertson maintains that

double jeopardy principles were violated when his criminal history was used as both an

aggravator and as support for the habitual offender finding. At the outset, Robertson has

waived this claim, as he did not raise it in his post-conviction petition for relief. Allen,

749 N.E.2d at 1171.

       Waiver notwithstanding, Elliott did not provide ineffective assistance of counsel

by failing to object to Robertson’s sentence on double jeopardy grounds.

       In Pedraza v. State, our Supreme Court held that “when a trial court uses the same

criminal history as an aggravator and as support for a habitual offender finding, it does

not constitute impermissible double enhancement of the offender’s sentence.”             887

N.E.2d 77, 80 (Ind. 2008). Therefore, Elliott had no reason to object to the sentence, as

the trial court was acting within its discretion, and his failure to do so did not constitute

ineffective assistance of counsel.

                B. Ineffective Assistance of Counsel – Appellate Counsel

       Robertson also contends that his appellate counsel failed to provide effective

assistance of counsel when he did not raise an argument concerning the sufficiency of the

evidence underlying the habitual offender finding.          More particularly, Robertson

contends that appellate counsel, David Payne, should have raised the sufficiency of the

evidence argument because he asserts that the State was required to introduce evidence

showing that he was an habitual offender, but did not.

                                             13
       Ineffective assistance of appellate counsel claims generally fall into three

categories: 1) denial of access to an appeal; 2) waiver of issues; and 3) failing to prevent

issues well.   Henley v. State, 881 N.E.2d 639, 644 (Ind. 2008). The standard for

evaluating claims of ineffective assistance of counsel at the appellate level is the same

two-prong Strickland standard used for trial counsel. 466 U.S. at 668; Allen v. State, 749

N.E.2d 1158, 1166-67 (Ind. 2001).        Therefore, Robertson must prove that appellate

counsel performed deficiently and that he was prejudiced as a result. Id.

       Robertson’s contention that the State was required to provide evidence proving

that he was an habitual offender when he had pleaded guilty to the charge and admitted to

the allegations contained in the habitual offender information is incorrect. As the trial

court stated, “in essence, Robertson alleges that ‘pleading guilty’ is not enough evidence

to find that he is a habitual offender.” Appellant’s App. p. 11. Our Supreme Court has

held that “since a defendant may plead guilty to an habitual offender charge, the State is

relieved of its burden of proof on that charge just as a plea of guilty eliminates the need to

prove beyond a reasonable doubt the commission of the pending felony.” Frazier v.

State, 490 N.E.2d 315, 316 (Ind. 1986). Thus, Robertson’s argument fails. To hold

otherwise would, as the post-conviction court noted, “mean that virtually every plea

hearing held in this state is defective, and hundreds of thousands of convictions must be

vacated.” Appellant’s App. p. 12.




                                             14
                                  C. Post-Conviction Court Bias

         Robertson contends that the post-conviction court showed bias when it ruled in the

State’s favor on his post-conviction relief petition despite the fact that the State filed no

findings of fact or conclusions of law. Robertson asserts that the post-conviction Judge

showed bias when he “chose to rule opposite the uncontroverted facts.” Appellant’s Br.

p. 20.

         When the impartiality of a judge is challenged on appeal, the court presumes that

the judge is unbiased and unprejudiced. Lee v. State, 735 N.E.2d 1169, 1172 (Ind. 2000).

In order to rebut that presumption, Robertson needed to establish, from the judge’s

conduct, actual bias or prejudice that places him in jeopardy. Smith v. State, 770 N.E.2d

818, 823 (Ind. 2002). Adverse rulings alone are not adequate to establish bias per se.

Moore v. Liggins, 685 N.E.2d 57, 63 (Ind. Ct. App. 1997) .

         Here, Robertson offers no evidence of bias or prejudice, but rather relies on the

mistaken assertion that where one party’s findings and conclusions are not contested by

the State, the trial court is required to accept these findings and conclusions. However,

Robertson is incorrect; under Post-Conviction Rule 1(6), the post-conviction court must

“make specific findings of fact, and conclusions of law on all issues presented;” the court

may exercise its discretion when issuing its findings of fact and conclusions of law.

         The post-conviction court was not required to accept Robertson’s findings simply

because the State did not file findings of its own. Thus, this argument fails.



                                             15
      Finally, Robertson argues that the post-conviction court failed to address all the

issues Robertson raised in his post-conviction relief petition. However, Robertson did

not include his post-conviction relief petition in the record and has given this Court no

way of evaluating this claim. In addition, we have found that Robertson has waived

some of these claims. Robertson had the burden of providing this Court with an adequate

record to allow it to evaluate his claims. Richey v. State, 426 N.E.2d 389, 395 (Ind.

1981). He did not, and therefore, the issue is waived. Id

      The judgment of the post-conviction court is affirmed.

BARNES, J., and CRONE, J., concur.




                                           16
