MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                   May 20 2016, 10:07 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                               CLERK
                                                                    Indiana Supreme Court
court except for the purpose of establishing                           Court of Appeals
                                                                         and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jennifer M. Lukemeyer                                    Gregory F. Zoeller
Tyler D. Helmond                                         Attorney General of Indiana
Voyles Zahn & Paul
                                                         Eric P. Babbs
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kurt Hinkle,                                             May 20, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         12A02-1508-PC-1040
        v.                                               Appeal from the Clinton Superior
                                                         Court
State of Indiana,                                        The Honorable Justin H. Hunter,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         12D01-1305-PC-415



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016         Page 1 of 20
                                       Statement of the Case
[1]   Kurt Hinkle (“Hinkle”) appeals from the post-conviction court’s denial of his

      petition for post-conviction relief, in which he alleged, in relevant part, that he

      had received ineffective assistance of appellate counsel. Hinkle argues that the

      post-conviction court erred by denying his claim that his appellate counsel had

      rendered ineffective assistance when counsel failed to file a reply brief and failed

      to file a transfer petition or specifically inform him of the time period for filing a

      transfer petition. Concluding that Hinkle has failed to meet his burden of

      showing that the post-conviction court erred by denying relief on these

      allegations of ineffective assistance of appellate counsel, we affirm the post-

      conviction court’s judgment.


[2]   We affirm.


                                                     Issue
              Whether the post-conviction court erred by denying post-
              conviction relief on Hinkle’s claim of ineffective assistance of
              appellate counsel.

                                                     Facts
[3]   The facts of Hinkle’s crimes were set forth in the memorandum decision from

      his direct appeal as follows:


              K.G. was born [i]n . . . 1992. Hinkle was born [i]n . . . 1963.
              K.G. was fifteen years old during the summer of 2008, and was
              working her first job detasseling corn. Each morning, a bus
              would pick K.G. and her co-workers up at the convenience store
              where Hinkle worked. K.G. became familiar with Hinkle when

      Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016   Page 2 of 20
        she purchased chocolate donuts from the convenience store each
        morning while waiting for the bus. At some point, Hinkle, who
        was running for Clinton County Surveyor, gave K.G. a campaign
        button and asked K.G. to work on his campaign. K.G. agreed
        and soon after began attending campaign functions with Hinkle
        and his wife.

        One day in late July or early August of 2008, K.G. went to the
        home Hinkle shared with his wife following a campaign event.
        While at the home, Hinkle took K.G. on a tour of the property.
        Hinkle led K.G. into a shed, grabbed K.G., and kissed her,
        putting his tongue in K.G.’s mouth. Hinkle then took K.G.’s
        shorts and underwear off, turned her around, and placed his
        penis in K.G.’s vagina. K.G. “didn’t know what to think” so she
        “just kind of . . . went along with it.” Tr. pp. 108-09. Hinkle
        stopped before completion.

        Later that evening, Hinkle drove K.G. home following another
        campaign event. While driving along a “narrow country road in
        the middle of nowhere,” Hinkle suddenly stopped the vehicle.
        Tr. p. 116. Hinkle instructed K.G. to come over to the driver’s
        seat, “laid [her] down across the passenger seat,” and took her
        pants and underwear off. Tr. p. 116. Hinkle then engaged in
        sexual intercourse with K.G. Hinkle continued to engage in
        sexual intercourse with K.G. throughout the late summer and
        early fall of 2008. During this time, Hinkle and K.G. engaged in
        sexual intercourse “two or three times a week.” Tr. p. 119. K.G.
        testified that she engaged in sexual conduct with Hinkle “[c]ause
        he was nice to me.” Tr. p. 119.

        On August 10, 2010, the State charged Hinkle with two counts of
        Class B felony sexual misconduct with a minor. December 7,
        2011, Hinkle filed a Motion in Limine concerning evidence of
        certain other alleged misconduct by Hinkle, i.e., evidence of a
        continuing relationship between Hinkle and K.G. after K.G.
        turned sixteen. On December 19, 2011, the State requested, and
        was subsequently granted, permission to amend the charging

Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016   Page 3 of 20
                 information to include Count III, Class D felony performance
                 before a minor that is harmful to minors. Hinkle subsequently
                 filed a motion to sever Count III from the first two counts as well
                 as multiple motions to dismiss Count III. Following a hearing,
                 the trial court denied each of Hinkle’s pending motions. The
                 State subsequently moved to dismiss Count III.

                 Following a two-day trial on February 28 and 29, 2012, the jury
                 found Hinkle guilty of both counts of Class B felony sexual
                 misconduct with a minor. On March 12, 2012, the trial court
                 sentenced Hinkle to an aggregate eleven-year sentence, with nine
                 of the eleven years executed in the Department of Correction and
                 the remaining two years suspended to probation . . . .

      Hinkle v. State, No. 12A05-1204-CR-199, *1-2 (Ind. Ct. App. Nov. 15, 2012)

      (footnotes omitted).


[4]   Thereafter, Hinkle appealed his convictions and argued that “the trial court

      abused its discretion in admitting evidence at trial of his continuing relationship

      with K.G. after she turned sixteen, in violation of Indiana Evidence Rule

      404(b).” Id., slip op. at *2. Specifically, Hinkle’s appellate counsel1 argued that

      the evidence was inadmissible under Indiana Evidence Rule 404(b). Hinkle

      contended that the trial court had committed “reversible error” by admitting the

      evidence and that the admission resulted in a “fundamentally unfair trial.”

      (Hinkle’s Ex. 3 – Appellant’s Br. at 1, 8, 9). In the State’s brief, it argued that

      the trial court did not abuse its discretion by admitting the evidence.




      1
          Hinkle’s appellate counsel was F. Scott Stuard.


      Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016   Page 4 of 20
      Additionally, the State argued that admission of evidence was harmless error

      and that the “evidence about Hinkle’s relationship with K.G. after she turned

      sixteen was used by both the State and the defense – by the defense to support a

      theory of acknowledging that sexual activity occurred but disputing its timing.”

      (Hinkle’s Ex. 3 – Appellee’s Br. at 5). Hinkle’s appellate counsel did not file an

      Appellant’s Reply Brief.


[5]   When addressing Hinkle’s Rule 404(b) challenge to the admission of evidence,

      another panel of our Court explained that “‘[o]ur analysis of admissibility under

      Rule 404(b) necessarily incorporates the relevancy test of [Indiana Evidence]

      Rule 401 and the balancing test of [Indiana Evidence] Rule 403.’” Hinkle, No.

      12A05-1204-CR-199, slip op. at *2 (quoting Sanders v. State, 704 N.E.2d 119,

      123 (Ind. 1999)) (brackets added by Hinkle Court). Our Court noted the State’s

      arguments that the evidence was admitted merely to “show the ongoing nature

      of Hinkle and K.G.’s relationship” and that it was relevant to show that their

      relationship was not one of an “innocent friend” but was instead “characterized

      by Hinkle’s sexual interest in K.G.” Id. at *3 (internal citations omitted). After

      we recognized the fact that the trial court had given a limiting instruction and

      had “instructed the jury that the evidence was admitted for the sole purpose of

      showing the relationship between Hinkle and K.G.[,]” we addressed Hinkle’s

      admission of evidence issue as follows:


              Without deciding whether the evidence of Hinkle and K.G.’s
              continuing relationship was relevant under Rule 401, we
              conclude that the admission of the evidence was, at most,
              harmless. Again, “the improper admission of evidence is

      Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016   Page 5 of 20
              harmless error when the defendant’s conviction is supported by
              substantial independent evidence of guilt sufficient to satisfy the
              reviewing court that there is no substantial likelihood that the
              questioned evidence contributed to the conviction.” Ware [v.
              State], 816 N.E.2d [1167] at 1175 (Ind. Ct. App. 2004) (citing
              Hernandez [v. State], 785 N.E.2d [294] at 300 [(Ind. Ct. App.
              2003), trans. denied]). The record here demonstrates that Hinkle’s
              convictions are indeed supported by substantial independent
              evidence of guilt.

              K.G. provided unequivocal testimony regarding her sexual
              encounters with Hinkle during the late-summer and early-fall of
              2008, including sexual intercourse in a shed on Hinkle’s property
              and in Hinkle’s car along a country road. These sexual
              encounters occurred when K.G. was fifteen years old. K.G.
              further testified that after the above-mentioned sexual encounters
              but prior to her sixteenth birthday, she and Hinkle engaged in
              sexual intercourse two or three times a week. Upon review, we
              are satisfied that, in light of K.G.’s unequivocal testimony
              regarding her sexual encounters with Hinkle which occurred
              before she turned sixteen, there is no substantial likelihood that
              the evidence of Hinkle’s relationship with K.G. after she reached
              the age of sixteen contributed to Hinkle’s conviction. As such,
              the admission of the challenged evidence, to the extent improper,
              was harmless. See Ware, 816 N.E.2d at 1175.

      Id.


[6]   On November 15, 2012, the same day that our Court issued the memorandum

      decision in Hinkle’s appeal, Hinkle’s appellate counsel sent Hinkle a letter

      along with a copy of our Court’s memorandum decision. Hinkle’s appellate

      counsel informed him that “[u]fortunately the Court ha[d] affirmed the trial

      court’s decision.” (Hinkle’s Ex. 4). The letter also instructed Hinkle of the

      following:

      Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016   Page 6 of 20
              If you wish to pursue this further, you may petition the Indiana
              Supreme Court to have this matter transferred to them for further
              consideration. Please let me know if you wish to do this so that I
              can inform the Court.

              If you have any questions, please contact my office.

      (Hinkle’s Ex. 4).


[7]   Subsequently, on February 8, 2013, Hinkle’s appellate counsel sent Hinkle

      another letter, which provided, in relevant part:


              I recently received a letter from you dated January 22nd.
              However, this is the first correspondence which I have received
              from you regarding pursuing your case further. Normally, the
              standard process for contesting a denial of an appeal is to petition
              the Court to have that decision transferred to the Supreme Court.
              However, you only have thirty days from the date the decision is
              reached to pursue that route. Therefore, the time has passed for
              you to request a transfer to the Supreme Court and you cannot
              challenge the decision through that means.

      (Hinkle’s Ex. 5).


[8]   On April 10, 2013, Hinkle filed a pro se petition for post-conviction relief.

      Thereafter, Hinkle obtained counsel and filed an amended post-conviction

      petition. In Hinkle’s amended petition, he alleged, in relevant part, that he was

      denied the effective assistance of appellate counsel. Specifically, Hinkle alleged

      that his appellate counsel had rendered ineffective assistance by: (1) failing to

      file a reply brief to address harmless error; and (2) failing to file a petition for

      transfer or notify him of the deadline to file a petition to transfer, which, he

      argued, resulted in a complete denial of counsel that should be considered

      Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016   Page 7 of 20
       under the standard set out in U.S. v. Cronic, 466 U.S. 648 (1984), rather than

       under the Strickland standard.2


[9]    On February 10, 2015, the post-conviction court held a hearing on Hinkle’s

       petition. Hinkle did not call his appellate counsel as a witness. Instead, he

       testified on his own behalf, and he called Joel Schumm (“Schumm”), an

       attorney and law professor, as a witness. Additionally, Hinkle introduced the

       following as exhibits: the trial transcript; the two appellate briefs; this Court’s

       memorandum decision; the November 2012 and February 2013 letters he had

       received from his appellate attorney; Schumm’s curriculum vitae; and a chapter

       from an appellate practice manual authored by Schumm.3


[10]   During the hearing, Hinkle acknowledged that, on November 15, 2012, his

       appellate attorney sent him a copy of this Court’s memorandum decision

       affirming his conviction and a letter notifying him that he could file a petition to

       transfer. Hinkle testified that, on December 4, 2012, he wrote his appellate

       attorney a letter and requested that he file a transfer petition. Hinkle did not

       introduce a copy of this letter into evidence. Hinkle also testified that he sent




       2
        Hinkle also alleged that his appellate counsel rendered ineffective assistance by failing to raise a sentencing
       argument. He does not argue this claim on appeal.
       3
        The chapter was entitled “After the Appellate Opinion is Issued” and was part of the Appellate Practice
       Manual that Schumm wrote for the Indiana Public Defender Council.

       Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016                 Page 8 of 20
       his attorney another letter on January 22, 2013 to check on the status of the

       appeal. He did not introduce a copy of that letter into evidence.4


[11]   Upon Hinkle’s request, the trial court recognized Schumm as an “expert”

       witness “on matters of appellate procedure and substantive appellate law . . .

       within the State of Indiana.” (Tr. 35). Schumm opined that Hinkle’s appellate

       counsel’s failure to file a reply brief, failure to file a transfer petition, and failure

       to communicate the specific transfer procedure to Hinkle constituted deficient

       performance.


[12]   In regard to Hinkle’s claim that his appellate counsel had rendered ineffective

       assistance by failing to file a reply brief, Schumm testified that he generally

       advises his students to file a reply brief “in almost every case.” (Tr. 38).

       Schumm testified that Hinkle’s appellate counsel should have filed a reply brief

       to respond to the State’s harmless error argument because counsel had not pre-

       emptively addressed it in his opening brief. Schumm testified that appellate

       counsel’s failure to file a reply brief addressing the harmless error argument was

       “almost an implicit concession” of the argument. (Tr. 39). On cross-

       examination, Schumm acknowledged that Hinkle’s appellate counsel had

       argued Hinkle had been denied a fair trial by the admission of the challenged

       evidence, but he opined that he still should have filed a reply brief to respond to




       4
        At the end of the post-conviction hearing, upon a question posed by the trial court to the attorneys, the
       parties explained that appellate counsel’s file had been stored in another attorney’s office and had been
       shredded by that office’s staff.

       Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016                Page 9 of 20
       the harmless error argument because, based on his “time um clerking at the

       Court of Appeals and talking to people there[,]” the failure to file a reply brief to

       respond to the argument would be taken as “sort of a passive assumption that it

       must be because there’s nothing to say on that issue.” (Tr. 63).


[13]   Schumm also testified that appellate counsel’s November 2012 letter notifying

       Hinkle of the option of filing a petition to transfer was “inadequate” because it

       did not set forth the specific deadline and procedure for filing such a petition.

       (Tr. 40). Additionally, Schumm testified that appellate counsel’s failure to file a

       petition to transfer was “not much different than not having a lawyer at all.”

       (Tr. 42). He suggested that such failure could be considered as a denial of

       representation at a critical stage under U.S. v. Cronic, which would mean that

       Hinkle would not need to show prejudice. Schumm testified how he,

       personally, handles the process for filing a transfer petition. He opined that

       Hinkle’s admission of 404(b) evidence raised on direct appeal was a “good

       issue” that could have been raised in a transfer petition, and he testified that he

       would have filed a transfer petition. (Tr. 42). Schumm also testified that a

       petition to transfer could have been based on the Court of Appeals’ lack of

       analysis on the admission of evidence issue, opining that “the Court of Appeals

       could have more explicitly said it’s an error as opposed to they’re not gonna

       address or they’re gonna assume it’s an error.” (Tr. 50).


[14]   The post-conviction court took the matter under advisement and, later, issued

       an order denying Hinkle’s petition for post-conviction relief on all claims of

       ineffective assistance of appellate counsel. The post-conviction court rejected

       Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016   Page 10 of 20
       Hinkle’s argument that his claims should be reviewed under the Cronic standard

       instead of the Strickland standard. The post-conviction court also found that

       Hinkle had failed to show that his appellate counsel’s performance was

       deficient and had failed to show prejudice. Hinkle then filed a motion to

       correct error, which the trial court denied. Hinkle now appeals.


                                                   Decision
[15]   Hinkle appeals the post-conviction court’s order denying post-conviction relief

       on his claims of ineffective assistance of appellate counsel. Our standard of

       review in post-conviction proceedings is well settled.

               We observe that post-conviction proceedings do not grant a
               petitioner a “super-appeal” but are limited to those issues
               available under the Indiana Post-Conviction Rules. Post-
               conviction proceedings are civil in nature, and petitioners bear
               the burden of proving their grounds for relief by a preponderance
               of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner
               who appeals the denial of PCR faces a rigorous standard of
               review, as the reviewing court may consider only the evidence
               and the reasonable inferences supporting the judgment of the
               post-conviction court. The appellate court must accept the post-
               conviction court’s findings of fact and may reverse only if the
               findings are clearly erroneous. If a PCR petitioner was denied
               relief, he or she must show that the evidence as a whole leads
               unerringly and unmistakably to an opposite conclusion than that
               reached by the post-conviction court.

       Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal case

       citations omitted), trans. denied. Additionally, “[w]e will not reweigh the

       evidence or judge the credibility of the witnesses; we examine only the


       Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016   Page 11 of 20
       probative evidence and reasonable inferences that support the decision of the

       post-conviction court.” Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007),

       reh’g denied, cert. denied.


[16]   Hinkle argues that the post-conviction court erred by denying post-conviction

       relief on his claim of ineffective assistance of appellate counsel. Specifically,

       Hinkle contends that his appellate counsel rendered ineffective assistance when

       counsel: (1) failed to file a reply brief; and (2) failed to file a transfer petition or

       inform him of the deadline for filing a transfer petition.


[17]   We apply the same standard of review to claims of ineffective assistance of

       appellate counsel as we apply to claims of ineffective assistance of trial counsel.

       Williams v. State, 724 N.E.2d 1070, 1078 (Ind. 2000), reh’g denied, cert. denied. A

       claim of ineffective assistance of counsel requires a showing that: (1) counsel’s

       performance was deficient by falling below an objective standard of

       reasonableness based on prevailing professional norms; and (2) counsel’s

       performance prejudiced the defendant such that “‘there is a reasonable

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

       proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444

       (Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984), reh’g

       denied), reh’g denied, cert. denied. “A reasonable probability arises when there is a

       ‘probability sufficient to undermine confidence in the outcome.’” Grinstead v.

       State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466 U.S. at 694).

       “Failure to satisfy either of the two prongs will cause the claim to fail.” Gulzar

       v. State, 971 N.E.2d 1258, 1261 (Ind. Ct. App. 2012) (citing French v. State, 778

       Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016   Page 12 of 20
       N.E.2d 816, 824 (Ind. 2002)), trans. denied.                   However, “[i]f we can easily

       dismiss an ineffective assistance claim based upon the prejudice prong, we may

       do so without addressing whether counsel’s performance was deficient.” Baer v.

       State, 942 N.E.2d 80, 91 (Ind. 2011), reh’g denied. “Indeed, most ineffective

       assistance of counsel claims can be resolved by a prejudice inquiry alone.”

       French, 778 N.E.2d at 824.5


[18]   In order to succeed on an ineffective assistance of counsel claim, “a petitioner

       must overcome the ‘strong presumption that counsel rendered adequate

       assistance and made all significant decisions in the exercise of reasonable

       professional judgment.’” State v. Greene, 16 N.E.3d 416, 419 (Ind. 2014)

       (quoting Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002), reh’g denied, cert.

       denied). “A defendant alleging the ineffective assistance of appellate counsel on

       direct appeal bears a rigorous burden.” Conner v. State, 711 N.E.2d 1238, 1252

       (Ind. 1999), reh’g denied, cert. denied. “Because the decision regarding what

       issues to raise and what arguments to make is ‘one of the most important

       strategic decisions to be made by appellate counsel,’ ineffectiveness is very




       5
         When discussing the prejudice prong, the State seems to suggest that Hinkle was also required to show that
       his convictions were “fundamentally unfair or unreliable.” (State’s Br. 19). In Hinkle’s Reply Brief, he also
       discusses fundamental unfairness as if it is a requirement in addition to prejudice. Our Indiana Supreme
       Court, however, has clarified that “whether the result of the proceeding was fundamentally fair, is not a
       discrete third prong of the IAC analysis . . . Rather, it enters into the determination of whether the likelihood
       of a different outcome qualifies as prejudice in the Strickland sense.” Coleman v. State, 741 N.E.2d 697, 699
       (Ind. 2000) (citing Williams v. Taylor, 529 U.S. 362, 391-92 (2000)), reh’g denied, cert. denied.



       Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016                Page 13 of 20
       rarely found.” Id. (quoting Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1997),

       reh’g denied, cert. denied).


[19]   Ineffective assistance of appellate counsel claims “‘generally fall into three basic

       categories: (1) denial of access to an appeal, (2) waiver of issues, and (3) failure

       to present issues well.’” Garrett v. State, 992 N.E.2d 710, 724 (Ind. 2013)

       (quoting Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006)). Hinkle asserts that

       his ineffective assistance of appellate counsel claims are based upon categories

       (1) and (2). Specifically, he contends that his appellate counsel’s failure to file a

       reply brief responding to the State’s harmless error argument constituted the

       waiver of an issue and that his counsel’s failure to file a transfer petition and

       inform him of the transfer-filing deadline constituted the denial of access to an

       appeal. The State, on the other hand, contends that Hinkle’s claim regarding

       counsel’s failure to file a reply brief should be reviewed as a category (3) claim

       (failure to present issues well) and that Hinkle’s arguments regarding transfer

       should be reviewed as category (2) claims (waiver of issues).


[20]   We, however, conclude that, in this specific instance, all of Hinkle’s arguments

       regarding the filing of a reply brief and transfer would more properly be framed

       as whether appellate counsel failed to present the evidentiary issue well. 6




       6
         Contrary to Hinkle’s contention, his appellate counsel did not waive an issue. Harmless error was not an
       appellate issue to be raised by appellate counsel. Hinkle’s counsel raised an evidentiary issue on appeal. Any
       response to the State’s harmless error argument would have been addressing the evidentiary issue already
       raised. Thus, his counsel’s lack of response to the State’s harmless error argument would be more
       appropriately considered a failure to present that evidentiary issue well.

       Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016             Page 14 of 20
       “[C]laims of inadequate presentation of certain issues, as contrasted with the

       denial of access to an appeal or waiver of issues, are the most difficult for

       defendants to advance and for reviewing tribunals to support.” Hollowell v.

       State, 19 N.E.3d 263, 270 (Ind. 2014) (citing Bieghler, 690 N.E.2d at 195).

       “[T]his is so because such claims essentially require the reviewing court to

       reexamine and take another look at specific issues it has already adjudicated to

       determine ‘whether the new record citations, case references, or arguments

       would have had any marginal effect on their previous decision.’” Id. (quoting

       Bieghler, 690 N.E.2d at 195)) (emphasis added by Hollowell Court).


[21]   We need not, however, decide whether appellate counsel’s performance was

       deficient because Hinkle has not shown prejudice on any of his ineffective

       assistance of appellate counsel claims. See Young v. State, 746 N.E.2d 920, 927

       (Ind. 2001) (explaining that it was not necessary to address the allegations of

       deficient performance where the petitioner had failed to establish prejudice and

       affirming the trial court’s denial of post-conviction relief; Coleman, 741 N.E.2d

       at 701 n.4 (quoting Strickland, 466 U.S. at 697) (explaining that “‘[i]f it is easier

       to dispose of an ineffectiveness claim on the ground of lack of sufficient

       prejudice, which we expect will often be so, that course should be followed’”).




       Additionally, appellate counsel’s failure to file a transfer petition or inform Hinkle of the specific time limits
       for filing transfer was not a denial of access to an appeal. Hinkle’s appellate counsel perfected an appeal,
       filed an appellate brief, and obtained an appellate opinion. Because a transfer petition is a means to seek our
       Indiana Supreme Court’s review of an argument previously raised in an appeal to our Court, Hinkle
       arguments regarding transfer would be more appropriately considered a failure to present that evidentiary
       issue well.

       Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016                  Page 15 of 20
[22]   To succeed on his ineffective appellate counsel claim, “the prejudice-prong of

       Strickland require[d] [Hinkle] to demonstrate a reasonable probability that, but

       for his counsel’s errors, the result of his direct appeal would have been

       different.” See Martin v. State, 760 N.E.2d 597, 600 (Ind. 2002) (citing Strickland,

       466 U.S. at 694). Thus, to show prejudice on his ineffective appellate counsel

       claim regarding the lack of a reply brief, Hinkle was required to show that but

       for his appellate counsel’s failure to file a reply brief discussing harmless error,

       this Court would have reversed the trial court’s ruling on the evidentiary issue

       and reversed his conviction. Additionally, to show prejudice on his ineffective

       appellate counsel claim regarding the lack of a transfer petition, Hinkle was

       required to show that but for his appellate counsel’s failure to file a transfer

       petition or specifically inform him of the transfer timelines, the Indiana

       Supreme Court would have granted transfer, reversed the trial court’s ruling on

       the evidentiary issue, and reversed his conviction.7




       7
         Hinkle contends that, instead of applying the Strickland analysis, we should review his ineffective appellate
       counsel claims pursuant to Cronic and presume prejudice. “Cronic established, in effect, a narrow exception to
       the two-pronged Strickland test[.]” Conner, 711 N.E.2d at 1254. “In Cronic, the U.S. Supreme Court rejected
       a claim of ineffective assistance of counsel but did suggest that, in limited circumstances of extreme
       magnitude, ‘a presumption of ineffectiveness’ may be justified and that such circumstances are, in and of
       themselves, ‘sufficient [to establish a claim of ineffective assistance] without inquiry into counsel’s actual
       performance at trial.’” Id. (quoting Cronic, 466 U.S. at 662) (brackets added by Conner Court).
                Cronic delineates three circumstances that avoid the Strickland requirement that a defendant
                establish both deficient performance and actual prejudice: (1) the complete denial of
                counsel; (2) a complete failure by counsel to subject the State’s case to meaningful
                adversarial testing; and (3) the circumstances of the trial are such that, although counsel is
                available to assist the accused during trial, the likelihood that any lawyer, even a fully
                competent one, could provide effective assistance is so small that a presumption of
                prejudice is appropriate without inquiry into the actual conduct of the trial.

       Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016                Page 16 of 20
[23]   Hinkle, however, has not shown that there is a reasonable probability that the

       result of his direct appeal would have been different had his appellate counsel

       filed a reply brief or a transfer petition. Essentially, Hinkle’s argument

       regarding prejudice on his ineffective assistance of appellate counsel claims

       boils down to a mere assertion that he was prejudiced by counsel’s failure to file

       a reply brief and transfer petition. See (Hinkle’s Br. 9) (arguing that appellate

       counsel’s failure to file a reply brief “prejudiced Hinkle”); (Hinkle’s Br. 15, 16)

       (contending that he was prejudiced because the “remedy” of seeking transfer

       was “lost”). He attempts to support his assertion of prejudice by relying on the

       “uncontroverted testimony” of Schumm. (Hinkle’s Reply Br. 7). In other

       words, Hinkle contends that the post-conviction court should have determined

       that he was prejudiced by counsel’s actions because Schumm testified that

       Hinkle’s actions constituted deficient performance.


[24]   We acknowledge that the trial court recognized Schumm as an “expert” on

       “matters of appellate procedure and substantive appellate law . . . within the




       Harrison v. State, 707 N.E.2d 767, 774 (Ind. 1999) (internal quotations and citations omitted), reh’g denied, cert.
       denied.
       Hinkle contends that he was not required to show prejudice because, in accordance with Cronic, his appellate
       counsel’s actions effectively equated to a complete denial of counsel. The post-conviction court rejected this
       argument, as do we. Aside from Hinkle’s reliance on Schumm’s testimony that his appellate counsel’s
       representation was “‘not much different than not having a lawyer at all[,]’” (Hinkle’s Br. 14) (quoting Tr. 42),
       he has not shown how he was completely denied counsel by his appellate counsel who perfected an appeal,
       filed an appellate brief, and obtained an appellate opinion. Accordingly, the Cronic presumption of prejudice
       does not apply, and Hinkle is required to meet his burden of showing prejudice under Strickland. See Conner,
       711 N.E.2d at 659 n.26 (“If the Cronic exception does not apply, the defendant must fulfill the individualized
       requirements of Strickland.”).



       Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016                  Page 17 of 20
       State of Indiana.” (Tr. 35). Under Evidence Rule 702(a), a witness who is

       “qualified as an expert by knowledge, skill, experience, training, or education

       may testify in the form of an opinion or otherwise if the expert’s scientific,

       technical, or other specialized knowledge will help the trier of fact to

       understand the evidence or to determine a fact in issue.” However, “[t]he post-

       conviction court is the sole judge of the evidence and the credibility of the

       witnesses[,]” Hall v. State, 849 N.E.2d 466, 468-69 (Ind. 2006), and it was up to

       the post-conviction court to determine whether Schumm’s testimony helped it

       in its determination of the ineffective assistance of appellate counsel issue.


[25]   The trial court made the following findings and conclusions, which indicate

       that it did not place great weight upon Schumm’s testimony regarding Hinkle’s

       ineffective appellate counsel claims:

               31. Professor Schumm testified that [appellate counsel] should
               “absolutely” have filed a reply brief.

               32. Pursuant to Appellate Rule 63 (G) filing of reply briefs is
               discretionary.

               33. [Appellate counsel] did not address harmless error in the
               opening brief and the State argued in its brief that the admission
               of the contested evidence was harmless.

               34. Professor Schumm testified that in his experience, the
               Indiana Court of Appeals will “base its decision on the briefs.
               And if there’s nothing from one side then the argument from the
               other side is very likely to prevail.” (Tr. 39).

               35. Appellate courts are “not limited in [their] review of issues to
               the facts and cases cited and arguments raised by the appellant’s

       Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016   Page 18 of 20
               counsel. [The Court of Appeals] commonly review[s] relevant
               portions of the record, perform[s] separate legal research, and
               often decide[s] cases based on legal arguments and reasoning not
               advanced by either party.” Bieghler v. State, 690 N.E.2d 188, 193
               ([Ind.] 1997).

                                                    *****

               46. Hinkle relied on the testimony of Professor Schumm for the
               proposition that prejudice accrued to Hinkle through the lack of a
               rebuttal argument on the issue of harmless error. This presumes
               that, in the face of argument by the State on this issue, the
               appellate court had no choice but to accept the State’s position.

               47. The discussion in Bieghler makes clear that appellate courts
               are not confined to the four corners of the briefs in making their
               decisions. “While impressive appellate advocacy can influence
               the decisions appellate judges make and does make our task
               easier, a less than top notch performance does not necessarily
               prevent us from appreciating the full measure of an appellant’s
               claim.” ([Bieghler, 690 N.E.2d at]195). The harmless error
               argument is one which is frequently encountered by our appellate
               courts and is precisely the type of claim which would enjoy the
               court’s enhanced scrutiny beyond the briefs. Clearly, in Hinkle’s
               review such was the case as the opinion states that the “record
               here demonstrates that Hinkle’s convictions are indeed supported
               by substantial evidence of guilt.” (Op. p.6)[.]

       (App. 14-16).


[26]   The post-conviction court ultimately determined that Hinkle had failed to meet

       his burden of showing deficient performance and resulting prejudice. The

       knowledge of determining the effectiveness of appellate counsel was within the

       post-conviction court’s realm of knowledge, and we will not find error in the

       post-conviction court’s conclusion merely because Hinkle’s witness testified

       Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016   Page 19 of 20
       otherwise. See Stephenson, 864 N.E.2d at 1028 (“We will not reweigh the

       evidence or judge the credibility of the witnesses; we examine only the

       probative evidence and reasonable inferences that support the decision of the

       post-conviction court.”).8


[27]   Because Hinkle has failed to show prejudice in regard to his ineffective

       assistance of appellate counsel claims, he has failed to meet his burden of

       showing that the post-conviction court erred by denying relief on these claims.

       Accordingly, we affirm the post-conviction court’s denial of post-conviction

       relief.


[28]   Affirmed.


       Baker, J., and Bradford, J., concur.




       8
         We also note that, pursuant to Indiana Evidence Rule 704(b), a witness “may not testify to opinions
       concerning . . . legal conclusions.” See also Hoglund v. State, 962 N.E.2d 1230, 1234 n.3 (Ind. 2012) (noting
       that “there is authority for the proposition that Rule 704(b) was designed to preserve existing Indiana law by
       providing that witnesses may not testify to certain specific subjects”) (citing 13 Robert Lowell Miller, Jr.,
       Indiana Practice Series, Indiana Evidence § 704.201 at 589 (3d ed. 2007)), reh’g denied.



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