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            Nov 19 2013, 9:05 am
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE:                               ATTORNEYS FOR APPELLEE:

MORGAN GOVAN                                    GREGORY F. ZOELLER
Westville, Indiana                              Attorney General of Indiana

                                                RYAN D. JOHANNINGSMEIER
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

MORGAN GOVAN,                                   )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )       No. 02A04-1302-PC-91
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Respondent.                     )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                           The Honorable Fran C. Gull, Judge
                             Cause No. 02D06-1010-PC-97


                                    November 19, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Petitioner, Morgan Govan (Govan), appeals the post-conviction court’s

Order denying his petition for post-conviction relief.

       We affirm.

                                         ISSUES

       Govan raises five issues on appeal, which we consolidate and restate as the

following three issues:

       (1) Whether Govan’s trial counsel provided ineffective assistance of counsel;

       (2) Whether Govan’s appellate counsel provided ineffective assistance of counsel;

          and

       (3) Whether the post-conviction court abused its discretion by ordering the cause to

          be submitted by affidavit.

                          FACTS AND PROCEDURAL HISTORY

       We described the factual background in the direct appeal of this case as follows:

              In 2008, Govan and A.H. were involved in an on-again, off-again
       relationship that spanned thirteen years. They had an open relationship,
       which meant that they could “associate with other [people] and still be
       together.” A.H. lived in an apartment in Allen County. Govan lived with his
       mother but stayed most nights with A.H. and kept some of his belongings
       there.

              When A.H. arrived at her apartment in the early morning hours of
       September 11, 2008, Govan asked her if she had cheated on him. A.H., who
       had in fact cheated on him, said no. However, Govan, sensing otherwise,
       became angry because A.H. had lied to him. According to A.H.’s trial
       testimony, she realized that she had emotionally hurt Govan and decided that
                                             2
“[she] wanted him to hurt [her].” So, A.H. instructed Govan to tie her up.
Govan had recently undergone shoulder surgery and had limited mobility
with his dominant hand because that arm was in a brace and wrapped to his
torso. As such, A.H. and Govan, as a team, ripped bed sheets into strips.
Govan then instructed A.H., who was now naked, how to tie the strips around
her wrists. Govan then tied A.H.'s wrists and ankles together. At this point,
A.H. was “hog tied” on the floor.

       After a period of time, Govan untied A.H., and she moved to the bed,
where she was then tied to the bed frame. Govan then started poking her with
a knife that he had heated with a lighter. According to A.H.’s trial testimony,
this “hurt.” Govan did this “[b]ecause he wanted to hurt [her].” Govan then
tried to “brand” A.H. with his initials. The State asked A.H. on direct
examination if she agreed that Govan could brand her, and the following
exchange occurred:

       Q And when it came to the knife, was this something that you had
agreed that [he] could brand his initials on your butt with a knife?
       A I told him to hurt me, because I know I realized I hurt him.
       Q Did that include the knife though?
       A Yes.
       Q And did it get to the point where, did it ever get to the point with
the knife that you no longer wanted him to do it?
       A Yes. I told him to stop.
       Q And did he stop when you told him to stop?
       A Yes.
       Q While the act was occurring, what did you do because of the pain?
       A I just put my head down in the pillow.

However, it was pointed out on cross-examination that A.H. gave a slightly
different version of the branding incident in her pre-trial deposition.
Specifically, when she was asked during her deposition whether the knife
was applied to her skin with her consent, A.H. replied, “[T]o an extent,
[though Govan] took it a little too far.” A.H. then explained that what she
meant by that response was that she “didn't realize what he was going to do
was ... brand me with a hot knife,” though she knew something painful in
general was going to occur.

       A.H. was tied to the bed for approximately ten or fifteen minutes, and
during this period of time, her hands went numb. When she relayed this to
Govan, he released her. Though the timing is unclear, Govan also hit A.H.
on her back with an extension cord, which left a mark. According to A.H.,
                                      3
she and Govan had sex at some point on September 11. []. A.H. explained
that these activities were a “turn on” to her.

        In any event, after being released from the bed, A.H. went into the
closet “on [her][own] free will” and locked the door from the inside. After
A.H. went inside the closet, Govan pushed a couch in front of the door. A.H.
tried to hang herself in the closet, but the clothing rod was too low.
Eventually, A.H. went to sleep because she was exhausted. After a couple
of hours, A.H. emerged from the closet to use the restroom. In an attempt to
get away from Govan, she told him that she needed to go to work to pick up
her paycheck, though payday was the following day. Govan accompanied
her but stayed in the car. Once A.H. was inside her place of employment,
she locked the door. Her co-worker, Myra Neireiter, described A.H. as
“shaken, very nervous, and distraught.” A.H. told Neireiter that Govan had
“whipped her and tied her up.” A.H. lifted up her shirt to reveal her injuries.
A.H. then called 911. According to the 911 call, which was played for the
jury during trial, she told the dispatcher that she and Govan had been getting
into it over the past two days, Govan had beat her with a cord, she wanted
the police to pick him up, and she wanted to press charges. She told the
dispatcher that she was not going outside the building to talk to the police
until Govan was detained. When the police arrived at A.H.’s work, she told
them that Govan had branded her with a hot knife and struck her with an
extension cord. She, however, did not tell the police that she had asked
Govan to do these things to her because she felt that she deserved it for lying
to him about cheating on him. The police later went to A.H.’s apartment to
collect evidence and take pictures of her.

        The following day, the police videotaped an interview with Govan.
During the interview, Govan said that on September 11, 2008, A.H. came
home and, after first lying about being with another man, admitted to being
with another man. Govan said he became upset because A.H. had lied to
him. He explained that what followed was not heated, but he probably took
it too far. Govan said he had A.H. tie sheets to a bed and was yelling at her
and instructing her how to do things. He also admitted to hitting A.H. with
a belt-like object on her back, “beat[ing]” her, and making her go into a closet
for fifteen or twenty minutes. He said he went on a “rampage,” which scared
the “shi* out of [A.H.].” This all came about, he explained, because he saw
marks on A.H., and if another man was going to beat on A.H., he was going
to do so, too. On multiple occasions in the interview, Govan denied having
sex with A.H. on September 11, 2008. Near the end of the interview, when
Govan expressed uncertainty about A.H.’s allegations against him, he said to
the detectives, “Now she’s saying battery [for the belt], okay, I'm guilty for
                                        4
       that.” But he quickly said it was not like that, because they typically do kinky
       things like that during sex. Govan also said they often role-play during sex.

               The State charged Govan with Class B felony criminal confinement[,
       Ind. Code § 35-42-3-6], Class C felony battery (deadly weapon: knife)[, I.C.
       § 35-42-2-1(a)(3)], and Class A misdemeanor battery (bodily injury: physical
       pain and/or visible injury)[, I.C. § 35-42-2-1(a)(1)(A)]. The State later added
       a count alleging that Govan was a habitual offender[, I.C. § 35-50-2-8]. A
       jury trial was held in November 2008. As noted above, A.H. testified at trial,
       and Govan’s videotaped interview and A.H.’s 911 call were admitted into
       evidence. A.H. testified that she did not want to be there and she still had
       feelings for Govan. At the close of the evidence, the defense moved for
       judgment on the evidence for the criminal confinement charge, which the
       trial court granted. During closing arguments, the State argued that consent
       is not a defense to battery and specifically argued, “[I]t is not a defense to
       battery that someone cheats on you.” The State reasoned that Govan battered
       A.H. because he was mad that she had lied to him and that if another man
       had beat her, he was going to do so, too. []. The jury found Govan guilty of
       both [C]ounts of battery and also found him to be a habitual offender. The
       trial court sentenced Govan to four years for the Class C felony battery and
       one year for the Class A misdemeanor battery, to be served concurrently, and
       enhanced the sentence by four years for the habitual offender adjudication.

Govan v. State, 913 N.E.2d 237, 238-41 (Ind. Ct. App. 2009), trans. denied. (internal

citations omitted).

       Govan appealed, challenging the sufficiency of the evidence, and arguing that

A.H.’s consent to his “sadomasochistic sexual practices” negated his culpability. Id. at

241. We concluded that pursuant to Helton v. State, 624 N.E.2d 499 (Ind. Ct. App. 1993),

trans. denied, cert. denied, 520 U.S. 1119 (1997), “A.H.’s consent is not a defense to the

crimes because Govan’s actions involved a deadly weapon.” Govan at 913 N.E.2d at 242.

Further, we determined that the jury “was free to conclude that A.H. did not consent to be

beaten with the extension cord.” Id. at 243. As a result, we affirmed Govan’s convictions


                                              5
for both Class C felony and Class A misdemeanor battery, and his habitual offender

adjudication.

          On October 25, 2010, Govan filed a petition for post-conviction relief.         On

November 30, 2010, the State filed its answer. On March 28, 2012, the State filed a motion

to require Govan to submit his case by affidavit, which the post-conviction court granted.

On January 31, 2012, the post-conviction court issued its Order denying post-conviction

relief.

          Govan now appeals. Additional facts will be provided as necessary.

                               DISCUSSION AND DECISION

                                    I. Standard of Review

          Post-conviction proceedings do not afford the petitioner an opportunity for a super

appeal, but rather, provide the opportunity to raise issues that were unknown or unavailable

at the time of the original trial or the direct appeal. Turner v. State, 974 N.E.2d 575, 581

(Ind. Ct. App. 2012), trans. denied. The proceedings do not substitute for a direct appeal

and provide only a narrow remedy for subsequent collateral challenges to convictions. Id.

If an issue was available on direct appeal but not litigated, it is waived. Id. A petitioner

must establish his claims to post-conviction relief by a preponderance of the evidence. Ind.

Post-Conviction Rule 1, § 5.

          Appeal from a denial of post-conviction relief is equivalent to an appeal from a

negative judgment. Turner, 974 N.E.2d at 581. We will therefore not reverse unless the

evidence as a whole leads unerringly and unmistakably to a decision opposite that reached

                                               6
by the post-conviction court. Id. Where the post-conviction court has entered findings of

fact and conclusions of law, we accept the findings of fact unless clearly erroneous, but

accord no deference for conclusions of law. Id. We will disturb a post-conviction court’s

decision as being contrary to law only where the evidence is without conflict and leads to

but one conclusion, and the post-conviction court has reached the opposite conclusion. Id.

at 581-82. The post-conviction court is the sole judge of the weight of the evidence and

the credibility of witnesses. Id.

                         II. Ineffective Assistance of Trial Counsel

       Govan argues that he was denied the effective assistance of both trial and appellate

counsel as pertaining to his conviction for Class C felony battery. Govan’s attorney acted

as both trial and appellate counsel. The post-conviction court concluded that Govan had

failed to establish ineffective assistance of trial and appellate counsel.

       Ineffective assistance of counsel claims are subject to the two-prong test established

in Strickland v. Washington, 466 U.S. 668 (1984). Counsel’s performance must fall below

an objective standard of reasonableness in light of professional norms, and must prejudice

the defendant. Johnson v. State, 832 N.E.2d 985, 996-97 (Ind. Ct. App. 2005), reh’g

denied, trans. denied. Regarding the first prong, there is a strong presumption “that counsel

rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.” Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012), reh’g

denied. Trial counsel has wide latitude in selecting trial strategy and tactics, which will be

subjected to deferential review. Id. “[A] petitioner must offer strong and convincing

                                               7
evidence to overcome this presumption.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.

2000), cert. denied, 534 U.S. 830 (2001).          Prejudice is measured by a reasonable

probability that, but for counsel’s deficiencies, the result of the proceeding would have

been different. Ward, 969 N.E.2d at 51. If it is easier to dispose of an ineffectiveness claim

on the ground of lack of sufficient prejudice, that course should be followed.              See

Timberlake, v. State, 753 N.E.2d 591, 603 (Ind. 2001), reh’g denied, cert. denied, 537 U.S.

839 (2002).

                                    A. Jury Instructions

       Govan first argues that his trial counsel was ineffective for failing to request jury

instructions on 1) consent as a defense to battery; 2) mistake of fact; and 3) a lesser included

defense instruction on criminal recklessness. In our review of the propriety of a trial court’s

decision to give an instruction, we look to see whether the instruction correctly states the

law; whether the record contains evidence to support the giving of the instruction; and

whether the substance of the tendered instruction is covered by other instructions which

were given. Montano v. State, 649 N.E.2d 1053, 1058 (Ind. Ct. App. 1995), trans. denied.

       Govan contends that this court’s decision in his direct appeal was “a direct invasion

within the providence of the jury” and a consent defense was, in fact, available.

(Appellant’s Br. p. 12). In Govan, we relied upon Jaske v. State, 539 N.E.2d 14 (Ind. 1989)

and Helton, to reject Govan’s claim that A.H.’s consent to his sadomasochistic sex

practices constituted a defense. Govan, 913 N.E.2d at 241-42. While consent is not an

element of battery, it may provide a defense in certain circumstances, such as athletic

                                               8
contests. Id. However, it is not a defense when a deadly weapon is used, nor is it a defense

“[w]here it is against public policy to permit the conduct or resulting harm even though it

is consented to, as where there are no sexual overtones and the battery is a severe one which

involves a breach of the public peace, as well as, an invasion of the victim’s physical

security.” Id. (quoting from Helton, 624 N.E.2d at 514). Because Govan used a deadly

weapon, a knife, to batter A.H., consent was not available as a defense. See Govan, 913

N.E.2d at 242. The underlying assumption for Govan’s argument – that consent was a

defense to his battery of A.H. – has already been decided adversely to him on direct appeal.

Any jury instruction on consent would have misstated the law and been rejected by the trial

court. Therefore, trial counsel was not ineffective for failing to tender an instruction on

consent.

       Next, Govan claims that a mistake of fact instruction was applicable based upon his

misunderstanding on the scope of A.H.’s consent. Consent or the lack thereof is a fact.

Tyson v. State, 619 N.E.2d 276, 306 (Ind. Ct. App. 1993), trans. denied. A mistake of fact

defense requires the defendant to convince the court that his mistake was 1) honest and

reasonable; 2) about a matter of fact; and 3) the mistake negated the culpability required to

commit the crime. Payne v. State, 854 N.E.2d 7, 20 (Ind. Ct. App. 2006). For Govan to

be mistaken about A.H.’s consent, her consent must have been a defense to the battery,

which it was not. Thus, the trial court would have rejected the instruction if tendered.

Therefore, trial counsel was not ineffective for failing to tender an instruction on mistake

of fact.

                                             9
       Finally, he alleges trial counsel’s ineffectiveness due to the failure to request a lesser

included offense instruction for criminal recklessness since he was entitled to “any

instruction that could reduce the penalty statute to a lesser offense.” (Appellant’s Br. p.

14). We are mindful that “[a] tactical decision not to tender a lesser included offense does

not constitute ineffective assistance of counsel, even where the lesser included offense is

inherently included in the greater offense.” Autrey v. State, 700 N.E.2d 1140, 1141

(Ind.1998). Criminal recklessness is not an inherently included lesser offense of battery

because each requires proof of an element that the other does not – battery requires proof

of touching and criminal recklessness requires proof of substantial risk of bodily injury.

Sanders v. State, 704 N.E.2d 119, 120 (Ind. 1999). Criminal recklessness may, however,

be factually included in the crime of battery if the charging instrument alleges facts that

“reflect a substantial risk of bodily injury” and “show that the touching was done with a

disregard of the harm that might occur.” Id. at 121-22. Though alleging an intentional

touching with a deadly weapon, the Information contained no allegation that Govan

“disregarded the consequences of his actions.” Id. at 122. We therefore conclude that

Govan has not overcome the presumption that trial “counsel provided adequate assistance

and made all significant decisions in the exercise of reasonable professional judgment.”

Ward, 969 N.E.2d at 51. By failing to establish the trial court would have tendered any of

these jury instructions, Govan cannot prevail on his ineffective assistance claim.

                                B. Prosecutorial Misconduct



                                              10
       Govan also alleges that trial counsel was deficient for failing to object to three

purported instances of prosecutorial misconduct. It is well established that in order to

prevail on a claim of ineffective assistance due to the failure to object, a petitioner for post-

conviction relief must show an objection would have been sustained if made. Pruitt v.

State, 903 N.E.2d 899, 928 (Ind. 2009), reh’g denied. Further, to prevail on a claim of

ineffective assistance due to prosecutorial misconduct, a post-conviction petitioner must

show that prosecutorial misconduct in fact occurred. Id. A court applies a two-step test in

deciding claims of prosecutorial misconduct. Gasaway v. State, 547 N.E.2d 898, 901 (Ind.

Ct. App. 1989), trans. denied. First, the court must determine whether the prosecutor in

fact engaged in misconduct. Id. This determination is made by referencing case law and

the Rules of Professional Conduct. Id. Second, the court must consider whether the

misconduct, under the totality of the circumstances, placed the defendant in a position of

grave peril to which he should not have been subjected. Id. The gravity of peril is measured

by the probable persuasive effect of the misconduct on the jury’s decision rather than the

degree of impropriety of the conduct. Baer v. State, 866 N.E.2d 752, 756 (Ind. 2007), cert.

denied, 552 U.S. 1313 (2008).

       First, Govan contends that the prosecutor committed misconduct by arguing that “If

there’s no rough sex, there is no defense to the battery, and in Indiana consent is not even

a defense to battery.” (Transcript p. 205). He argues that the prosecutor misstated the law

and that trial counsel’s failure to object prejudiced him because the trial court was not

permitted to inform the jury that consent provided a defense to battery. We disagree. Even

                                               11
if the prosecutor misstated the law, the trial court specifically instructed the jury on the

applicable law. Govan claims that the prosecutor’s comments somehow implied that “it

did not shoulder the burden of disproving consent;” however, consent was not an available

defense to Class C felony battery pursuant to Jaske and Helton. See Govan, 913 N.E.2d at

241-42. Therefore, no prosecutorial misconduct occurred. See Nevel v. State, 818 N.E.2d

1, 6 (Ind. Ct. App. 2004).

        Second, Govan argues that the prosecutor committed misconduct by making “eight

(8) references suggesting that the evidence implying confinement were means to convict

[Govan] of the remaining two (2) [C]ounts of battery.” (Appellant’s Br. p. 17). He insists

that the fact that A.H. was hog-tied and “held against her will” was impermissibly used by

the State “as the means to convict him of battery” given that he was acquitted of the

criminal confinement charge by a directed verdict. (Appellant’s Br. p. 17). However, the

post-conviction court concluded that “[n]o passages in the trial record appear to show that

the prosecutor engaged in any such argument,” and that there was “no indication that

[Govan’s] convictions on the two charges of battery were affected by the charge of criminal

confinement.” (Appellant’s Br. pp. 31, 35).1

        Govan does not support his argument with citations to the parts of the record on

which he relies, as required by Indiana Appellate Rule 46(A)(8)(a). We further note that

the trial court instructed the jury prior to closing arguments that the criminal confinement


1
 Govan failed to include a copy of the Order denying post-conviction relief in his Appendices. See Ind.
App.R. 50(A)(2)(b).

                                                   12
charge “should not enter into your deliberations in any way regarding the other two

[C]ounts of battery.” (Tr. pp. 203-04). In light of the foregoing, we are unable to conclude

that the prosecutor committed misconduct, and therefore Govan’s trial counsel was not

ineffective for failing to object.

       Finally, Govan argues that the prosecutor submitted false evidence at trial.

Specifically, Govan contends that the discrepancy between A.H.’s deposition testimony,

in which she stated that Govan used a heated knife on her and later tied her up, and her trial

testimony, in which she stated that Govan tied her up, untied her, and later attempted to

brand her with the heated knife, constitutes false testimony that the State knowingly put

before the jury. “[T]he prosecution may not stand mute while testimony known to be false

is received into evidence. False evidence, when it appears, must not go uncorrected.”

Coleman v. State, 946 N.E.2d 1160, 1167 (Ind. 2011).            However, contradictory or

inconsistent testimony by a witness does not constitute perjury. Wallace v. State, 474

N.E.2d 1006, 1008 (Ind. 1985). The jury, in their function as the finder of fact, is charged

with resolving the discrepancy. See id. Here, Govan has shown only that A.H.’s trial

testimony is inconsistent, not that it is false. His claim that trial counsel was ineffective

for failing to object to that testimony accordingly fails. In sum, without misconduct, not

only did the prosecutor’s argument not place Govan in a position of grave peril, but we

also cannot say that an objection from trial counsel would have led to a different result.

Thus, Govan has not shown that the evidence is without conflict and leads unerringly and



                                             13
unmistakably to a conclusion opposite that reached by the post-conviction court as to the

assistance of his trial counsel.

                                     C. Judicial Bias

       Govan next claims that his trial counsel was ineffective for failing to object to

comments from the trial court outside the presence of the jury. Specifically, Govan

contends that the trial court’s remarks violated judicial cannons and deprived him of the

right to a trial before a fair and impartial tribunal. The law presumes that a judge is

unbiased and unprejudiced. Everling v. State, 929 N.E.2d 1281, 1287 (Ind. 2010). To

rebut this presumption, a defendant must establish from the judge’s conduct actual bias or

prejudice that places the defendant in jeopardy. Id. Bias or prejudice that would warrant

reversal exists only where the judge has expressed an opinion on the issue of guilt or

innocence. Mitchell v. State, 690 N.E.2d 1200, 1208 (Ind. Ct. App. 1998), trans. denied.

       After A.H. recanted her testimony during trial, a side bar was held to discuss the

State’s plans to impeach A.H. with witnesses who would testify to statements she made

after informing the police about Govan. The trial court stated:

       And I’m sorry, I understand exactly what happened. I understand this man
       beat the hell out of her and now she’s changed her mind that she doesn’t want
       to prosecute him and she doesn’t want him to go to jail. But in the meantime,
       at some point we’ve all got to decide that we can’t protect everybody from
       themselves.

(Tr. p. 131-32).

       Even assuming that the trial court’s comments somehow constituted a statement on

his guilt, Govan has not demonstrated prejudice. It is undisputed that the trial court’s

                                            14
comments were made outside the presence of the jury. Comments made outside the

presence of the jury do not risk influencing the jurors. See Peek v. State, 454 N.E.2d 450,

456 (Ind. Ct. App. 1983). We therefore conclude that Govan has not met his burden to

demonstrate ineffective assistance based upon trial counsel’s failure to object to the trial

court’s comments.

                      III. Ineffective Assistance of Appellate Counsel

                                            A. Standard

       Govan also alleges that his appellate counsel failed to render effective assistance.

The standard for determining the effectiveness of assistance of counsel is the same for both

trial and appellate counsel. Fisher v. State, 810 N.E.2d 674, 676 (Ind. 2004). Our supreme

court has identified three categories of appellate counsel ineffectiveness claims, including:

(1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well.

Bieghler v. State, 690 N.E.2d 188, 193-95, reh’g denied, cert. denied, 525 U.S. 1021

(1998). Here, the majority of Govan’s claims fall into the waiver of issues category.

                                 B. Failure to Raise Issues

                                        1. Vagueness

       Govan first argues that his appellate counsel was ineffective because he failed to

challenge the battery statute, Ind. Code § 35-42-2-1(A)(3), as void for vagueness.

Specifically, he contends that the statute is void-for-vagueness since a touching cannot be

rude, insolent, or angry when done with the other party’s consent. The State argues that



                                              15
appellate counsel was not ineffective for challenging the statute because “no existing

authority would have supported such an argument.” (Appellee’s Br. p. 17).

       There is the “strongest presumption” of effective appellate advocacy in the face of

allegations of failure to raise a claim. Ben–Yisrayl v. State, 738 N.E.2d 253, 260 (Ind.

2000), cert. denied, 534 U.S. 1164 (2002). In evaluating whether appellate counsel was

ineffective by failing to raise an issue, we use the following two part 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 the raised issues. Biehgler, 690 N.E.2d at 194.

However, no deficient performance will be found where appellate counsel’s election of

issues presented was reasonable in light of the facts of the case. Id. Thus, to prevail in

such claim in post-conviction proceedings, it is not enough to show that appellate counsel

did not raise some potential issue; instead, the defendant must show that the issue was one

which a reasonable attorney would have thought availing. Hampton v. State, 961 N.E.2d

480, 491 (Ind. 2012). Appellate advocacy is not ineffective for failure to present a meritless

claim. Stowers v. State, 657 N.E.2d 194, 200 (Ind.Ct.App.1995), trans. denied.

       We conclude that Govan did not receive ineffective assistance of appellate counsel

because a vagueness challenge was not one which a reasonable attorney would have

thought availing. Although Govan asserts that I.C. § 35-42-2-1(A)(3) is vague in light of

A.H.’s purported consent, the underlying principle of the void-for-vagueness doctrine is

that no person “shall be held criminally responsible for conduct which he could not

reasonably understand to be proscribed.” United States v. Harriss, 347 U.S. 612, 617

                                             16
(1954). Here, the statute clearly provides a person of ordinary intelligence with fair notice

that battery with a deadly weapon is prohibited under the statute. Claiming that consent,

which is not even a defense under these circumstances, is incompatible with the elements

of the statute, is a far cry from arguing that the elements of the crime are so vague that

Govan could not know that his conduct was prohibited. We cannot therefore say that

appellate counsel was ineffective for declining to raise this issue.

                          2. Failure to Supply Record on Appeal

       Govan also alleges that his appellate counsel was ineffective for failing to provide

portions of the transcript on appeal. Although appellate counsel did not provide jury

instructions on direct appeal, Govan now argues that his appellate counsel’s purported

failure waived any argument that the jury should have been instructed as to A.H.’s consent.

However, consent is not an available defense to the crime of battery with a deadly weapon.

See Govan, 913 N.E.2d at 242-43. Thus, we cannot agree that appellate counsel’s

purported failure to provide a record containing jury instructions on direct appeal

constituted ineffective assistance. See Vaughn v. State, 559 N.E.2d 610, 615 (Ind. 1990).

                                      3. Other Issues

       Govan also contends that his appellate counsel was ineffective for failing to raise

on direct appeal the same issues that he contends that his trial counsel should have

challenged. Specifically, Govan asserts that appellate counsel should have raised trial

counsel’s failure to tender jury instructions, challenged alleged prosecutorial misconduct,

and contested the allegedly improper comments from the trial court. Further, because his

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trial counsel represented him on direct appeal, counsel “had a duty to inform [Govan]

concerning the conflict of presenting [these] issues.” (Appellant’s Br. p. 22).

       We have already determined Govan’s trial counsel was not ineffective for failing to

raise any of these issues. Where a petitioner did not receive ineffective assistance of trial

counsel, he can neither show deficient performance nor resulting prejudice as a result of

his appellate counsel’s failure to raise the same arguments on appeal. See Davis v. State,

819 N.E.2d 863, 870 (Ind. Ct. App. 2004), trans. denied. We therefore conclude that

Govan has not met his burden to prove that his appellate counsel was ineffective.

                        IV. Indiana Post-Conviction Rule 1, §9(b)

       Finally, Govan raises a procedural claim regarding the post-conviction proceedings.

Specifically, Govan contends that the post-conviction court improperly denied his request

for an evidentiary hearing and abused its discretion by proceeding by affidavit. Govan

asserts that he should have been given the opportunity to present evidence at an evidentiary

hearing where he could have subpoenaed A.H. and the police detective who interviewed

her.

       Indiana Post-Conviction Rule 1, § 9(b), in relevant part, provides that:

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

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       the proposed witness’ testimony is not relevant and probative, it shall enter a
       finding on the record and refuse to issue the subpoena.

If a petitioner proceeds pro se, as Govan did, the post-conviction court may at its discretion

determine that the cause should be submitted by affidavit. Under Rule 1 § 9(b), it is the

post-conviction court’s prerogative to determine whether an evidentiary hearing is

required. Smith v. State, 822 N.E.2d 193, 201 (Ind. Ct. App. 2005), trans. denied. Here,

the issues raised by Govan were matters of law or otherwise capable of resolution through

the trial record. Consequently, we cannot say that the post-conviction court abused its

discretion by declining to hold an evidentiary hearing and ordering the case to proceed by

affidavit.

                                      CONCLUSION

       Based on the foregoing, we conclude that Govan did not receive ineffective

assistance of trial or appellate counsel. Further, we conclude that the post-conviction court

did not abuse its discretion by ordering the cause to be submitted upon affidavit.

       Affirmed.

ROBB, C. J. and KIRSCH, J. concur




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