Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                           FILED
any court except for the purpose of                           Sep 07 2012, 8:57 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                         CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court




APPELLANT PRO SE:                                       ATTORNEYS FOR APPELLEE:

TERRANCE MITCHEM                                        GREGORY F. ZOELLER
Michigan City, Indiana                                  Attorney General of Indiana

                                                        AARON J. SPOLARICH
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

TERRANCE MITCHEM,                                  )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
               vs.                                 )   No. 71A03-1110-PC-497
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )


                     APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                         The Honorable Jane Woodward Miller, Judge
                               Cause No. 71D02-0801-PC-6


                                        September 7, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                          Case Summary

          Pro-se appellant Terrance Mitchem (“Mitchem”) appeals the denial of his petition for

post-conviction relief, which challenged his convictions for one count of Murder,1 three

counts of Attempted Murder,2 two counts of Rape,3 and one count of Criminal Deviate

Conduct.4 We affirm.

                                               Issue

          Mitchem presents a single issue for review, which we restate as whether he was

denied procedural due process because the post-conviction court addressed, in its findings of

fact, conclusions of law, and order, issues presented by Mitchem’s post-conviction counsel at

the post-conviction hearing, as opposed to issues delineated in the original pro-se petition for

post-conviction relief.

                                    Facts and Procedural History

          On direct appeal, the Indiana Supreme Court recited the relevant facts as follows:

          On June 12, 1995, defendant and two codefendants, Michael Greer and Dorian
          Lee, armed with weapons, entered a home occupied by four adults. Defendant
          raped the two female occupants. Defendant then told the four occupants to
          line up against the wall with their backs towards defendant, Greer and Lee.
          Defendant then changed his mind and told the occupants to turn around to face
          the defendant and to kneel. Greer, Lee, and defendant opened fire on all four
          occupants. One victim died and the other three survived.



1
    Ind. Code § 35-42-1-1.
2
    Ind. Code §§ 35-41-5-1, 35-42-1-1.
3
    Ind. Code § 35-42-4-1.
4
    Ind. Code § 35-42-4-2.

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Mitchem v. State, 685 N.E.2d 671, 673 (Ind. 1997). Mitchem was charged with Murder,

Burglary, three counts of Attempted Murder, two counts of Rape, and one count of Criminal

Deviate Conduct. On December 11, 1995, a jury acquitted Mitchem of Burglary and

convicted him of all other charges against him.          He was sentenced to ninety years

imprisonment. His conviction and sentence were affirmed on direct appeal. Id. at 680.

       On January 8, 2001, Mitchem filed a Petition for Post-Conviction Relief. Due to

changes of counsel, recusal of the initial post-conviction judge, and various continuances, the

post-conviction court did not commence an evidentiary hearing on Mitchem’s petition until

December 4, 2009. At that time, the post-conviction court observed that the CCS had

included a notation that an amendment to the petition was anticipated, but had not been filed.

The court asked Mitchem’s counsel to clarify the issues presented for post-conviction relief.

       Mitchem’s counsel articulated the following arguments: (1) whether trial counsel was

ineffective for abandoning an issue regarding suppression of a firearm, (2) whether an

adequate record was made to preserve an error relating to the requirement of specific intent

to kill (as related to Attempted Murder), (3) alleged fundamental error in jury instructions, (4)

whether appellate counsel was ineffective for failing to raise an argument regarding the jury

instructions, and (5) whether appellate counsel was ineffective for omitting a sentencing

argument as to a mitigating circumstance.

       Testimony and exhibits were presented at the December 4, 2009 hearing and at a

subsequent hearing on October 15, 2010. Mitchem and the State each filed proposed

findings of fact and conclusions of law. On August 17, 2011, the post-conviction court


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issued its findings of fact, conclusions of law, and order denying Mitchem post-conviction

relief. He now appeals.

                                   Discussion and Decision

       When a post-conviction court disposes of a petition for post-conviction relief, it “shall

make specific findings of fact, and conclusions of law on all issues presented, whether or not

a hearing is held.” Ind. Post-Conviction Rule 1(6). In a lengthy and well-reasoned order, the

post-conviction court addressed each of the allegations articulated by Mitchem’s counsel at

the post-conviction hearing.

       Mitchem now asks that we “either remand back to the lower court for a full Facts

Finding and Conclusion of Law on the PCR that was stamp filed under oath, or rule on the

PCR itself.” Appellant’s Brief at 7. The entirety of Mitchem’s argument set forth in his

appellant’s brief is as follows:

       A court that hears a Post Conviction claim must make findings of fact and
       conclusions of law on all issues presented in the petition. Allen v. State, 749
       N.E.2d 1158, 1164 (Ind. 2001), Minor v. State, 641 N.E.2d 85 (Ind. App. 1
       Dist. 1994).

       The findings must be supported by the facts, and the conclusions must be
       supported by the law. Thomas v. State, 776 N.E.2d 1227 (Ind. App. 2002).

       In the instant case, the post conviction court issued it’s [sic] finding of fact and
       conclusions of law on four issues that was [sic] orally given to the PCR court
       by counsel, thereby setting aside the PCR that was made under oath, verified,
       and filed in the trial court in accordance with the PCR rule 1.§6 [sic].

Appellant’s Brief at 6.

       As best we can discern Mitchem’s argument, he contends that the post-conviction

court is obliged to address all issues raised in a post-conviction petitioner’s original petition

                                                4
for post-conviction review, regardless of whether post-conviction counsel has communicated

an intention to abandon certain issues or to refrain from presenting evidence thereon.

Essentially, Mitchem denies that he is bound by his counsel’s representations to the post-

conviction court. He cites no authority to support these propositions. Nor does he

specifically identify any issue raised in the original petition but not addressed by the post-

conviction court.5

        Indiana Appellate Rule 46(A)(8)(a) provides:

        The argument must contain the contentions of the appellant on the issues
        presented, supported by cogent reasoning. Each contention must be supported
        by citations to the authorities, statutes, and the Appendix or parts of the Record
        on Appeal relied on, in accordance with Rule 22.

A party waives any issue raised on appeal where the party has failed to develop a cogent

argument or provide adequate citation to authority and portions of the record. Smith v. State,

822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005), trans. denied. Having failed to comply with

Appellate Rule 46, Mitchem has waived this Court’s review and thus Mitchem has failed to

establish grounds for reversal of the post-conviction order denying him relief.


5
 The State observed, in its appellee’s brief of July 5, 2012, that Mitchem had included no copy of his Petition
for Post-Conviction Relief in his Appendix. Mitchem responded by filing, on August 1, 2012, a Supplemental
Appendix containing a pro-se Petition for Post-Conviction Relief. In response to the pre-printed directive
“State concisely all the grounds known to you for vacating, setting aside or correcting your conviction and
sentence,” Mitchem had responded: “See, Memorandum of Law in Support of Post Conviction Relief
Petition.” (Supp. App. at 3.) The Memorandum included several sections designated as “arguments” and
stating Mitchem’s contentions that he had been denied due process and effective assistance of counsel. To the
extent that Mitchem attempted to present free-standing claims of error, his contentions were properly
abandoned by his post-conviction counsel. See Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002) (holding
that, generally, post-conviction complaints that something went awry at trial are cognizable only when they
show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or
direct appeal). See also Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007) (observing that, if an issue
was known and available but not raised on direct appeal, the issue is procedurally foreclosed).


                                                      5
 Affirmed.

RILEY, J., and CRONE, J., concur.




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