      MEMORANDUM DECISION                                                   FILED
                                                                       Apr 25 2016, 5:40 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as                          CLERK
                                                                        Indiana Supreme Court
      precedent or cited before any court except for the                   Court of Appeals
                                                                             and Tax Court
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                       ATTORNEYS FOR APPELLEE
      Kelly E. Culver                                        Gregory F. Zoeller
      Pendleton, Indiana                                     Attorney General of Indiana
                                                             James B. Martin
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Kelly E. Culver,                                           April 25, 2016

      Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                 84A01-1511-PC-1964

              v.                                                 Appeal from the Vigo Superior
                                                                 Court
      State of Indiana,                                          The Honorable David R. Bolk,
                                                                 Judge
      Appellee-Respondent.
                                                                 Trial Court Cause No. 84D03-0104-
                                                                 CF-903




      Bradford, Judge.



                                            Case Summary
[1]   Appellant-Petitioner Kelly Culver was convicted in 1997 of Murder, a felony,

      and sentenced to sixty-five years of incarceration. In 2000, the Indiana

      Court of Appeals of Indiana | Memorandum Decision 84A01-1511-PC-1964 | April 25, 2016      Page 1 of 11
      Supreme Court affirmed Culver’s conviction and sentence. In 2001, Culver

      filed a pro se petition for post-conviction relief (“PCR”). In 2005, the post-

      conviction court granted Culver’s motion for indefinite extension of time. In

      2014, Culver moved to amend his PCR petition and set the matter for an

      evidentiary hearing. The post-conviction court granted Culver’s motion to

      amend his PCR petition but declined to set the matter for a hearing, ultimately

      directing that all evidence be submitted in affidavit or other form as

      contemplated by Rule 1, section 5 of the Indiana Rules of Procedure for Post-

      Conviction Remedies. Culver sent questionnaires to his trial and appellate

      counsels, but when neither responded Culver sought no help from the post-

      conviction court in securing the evidence. In November of 2015, the post-

      conviction court denied Culver’s PCR petition in full. Culver contends that the

      post-conviction court abused its discretion in failing to hold an evidentiary

      hearing, the post-conviction court erred in finding that the defense of laches

      applied in this case, and he received ineffective assistance of appellate counsel.

      Because we conclude that the post-conviction court did not abuse its discretion

      in denying Culver’s request for a hearing or in concluding that he failed to

      establish that he received ineffective assistance of appellate counsel, we affirm.



                            Facts and Procedural History
[2]   The background for this appeal was outlined by the Indiana Supreme Court in

      its disposition of Culver’s direct appeal:




      Court of Appeals of Indiana | Memorandum Decision 84A01-1511-PC-1964 | April 25, 2016   Page 2 of 11
        The facts most favorable to the verdict indicate that in the early
        morning hours of May 11, 1997, Defendant left a neighbor’s
        house intoxicated and was followed home by his girlfriend, Lori
        McCullough. Defendant began arguing with McCullough.
        When these arguments escalated, McCullough called her brother,
        Brad Peters, to come pick up her and her children. Defendant
        threatened to fight Peters and then rummaged through a kitchen
        drawer where he had previously stored an ice pick.

        As they left the apartment arguing, other residents had gathered
        in the hallway, including Charles Horton who was standing in
        his doorway. According to one witness, Horton was preparing
        for work which began at 5:00 a.m. By 4:20 a.m., Peters had
        managed to pick up his sister and her children without further
        incident.

        Shortly after 5:00 a.m., while driving on Sanford Road just east
        of State Road 63, Mark Barrett observed Horton’s car parked in
        the middle of the road. Concerned that he would be unable to
        bypass the car without hitting it, Barrett slowed down briefly and
        then stopped his car. He observed Defendant bent over along the
        side of the road as if he were searching for an item. Defendant
        approached Barrett’s vehicle, then turned and walked away. At
        this time, Defendant was wearing a black jacket. Later that
        morning, Chris Newhart saw Defendant trying to hitchhike a few
        hundred feet north of Sanford Road. Now Defendant was not
        wearing a shirt or jacket despite the cold weather.

        Around 6:00 a.m., at the intersection of State Road 63 and
        Sanford Road, Defendant approached Stephen Gariepy’s truck as
        Gariepy stopped at a stop sign. Defendant solicited Gariepy’s
        help, telling him that he and a friend had been attacked, that he
        believed his attackers killed his friend, and that he needed a ride
        into Terre Haute to notify police. Because Defendant was
        shirtless, Gariepy gave him a plaid shirt to wear. At
        approximately 6:15 a.m., Defendant exited Gariepy’s truck at a
        railroad crossing in Terre Haute within the proximity of


Court of Appeals of Indiana | Memorandum Decision 84A01-1511-PC-1964 | April 25, 2016   Page 3 of 11
        McCullough’s residence. Defendant and Gariepy parted without
        ever having notified the police of the alleged attack.

        At 6:50 a.m., while asleep at her residence, McCullough was
        awakened by a “nervous and scared” Defendant. Defendant,
        who had been wearing black sweatpants and a black Adidas
        jacket that morning, was now wearing black sweatpants and a
        plaid shirt. He had mud all over his sweatpants and red stains on
        his thermal boxer shorts. As Defendant requested, McCullough
        gave him a shirt to wear. As he changed clothes, she saw him
        remove a bundle of money from his sweatpants. Before leaving,
        Defendant told McCullough that he had done something wrong,
        that he was in trouble, and to tell people that he never owned a
        black Adidas jacket.

        At 9:30 a.m., Vigo County Police Officer Steve Barnhart
        discovered Horton’s abandoned car on Sanford Road just east of
        State Road 63. Officer Barnhart observed blood in the car and
        on the road outside of the car. Looking in the nearby wooded
        area, Officer Barnhart found Horton’s body. Horton had been
        stabbed twenty-eight times with an ice-pick. Horton received a
        final stab wound through his right eye that entered his brain.
        Officer Barnhart discovered the body with the ice-pick still in
        Horton’s eye.

        Three days after discovering Horton’s body, police found
        Defendant’s Adidas jacket near the intersection of Sanford Road
        and State Road 63. After obtaining a search warrant for
        Defendant’s apartment, officials uncovered a pair of black
        sweatpants and thermal boxer shorts in the kitchen trash
        container.

        The State charged Defendant with Murder. The jury found
        Defendant guilty as charged. The trial court sentenced Defendant
        to 65 years of incarceration.

Culver v. State, 727 N.E.2d 1062, 1064-65 (Ind. 2000) (footnotes omitted).



Court of Appeals of Indiana | Memorandum Decision 84A01-1511-PC-1964 | April 25, 2016   Page 4 of 11
[3]   The Indiana Supreme Court affirmed Culver’s conviction and sentence on

      direct appeal. Id. at 1072. On March 30, 2001, Culver filed a pro se PCR

      petition. On April 9, 2001, the State responded, denying Culver’s allegations

      and asserting waiver, res judicata, and laches. On April 19, 2001, the Public

      Defender of Indiana appeared on behalf of Culver, withdrawing on September

      6, 2005. On September 19, 2005, the post-conviction court granted Culver’s

      motion for an indefinite extension of time.


[4]   On July 28, 2014, Culver moved to amend his PCR petition and to set the

      matter for an evidentiary hearing. The post-conviction court granted Culver’s

      motion to amend but declined to set the matter for a hearing. On February 20,

      2015, the post-conviction court issued a scheduling order which gave Culver

      thirty days in which to file and exchange with the State any evidence he wished

      the post-conviction court to consider, directing that evidence be submitted in

      affidavit or other form contemplated by Post-Conviction Rule 1, section 5. On

      March 17, 2015, Culver moved for a continuance so that his trial and appellate

      counsels could respond to written questionnaires. On May 7, 2015, Culver

      moved to have the post-conviction court take judicial notice of its own record

      and Culver’s affidavit in support of his PCR petition. Apparently, neither

      Culver’s trial nor appellate counsels responded to his questionnaires.


[5]   On November 2, 2015, the post-conviction court denied Culver’s PCR petition,

      concluding, inter alia, that Culver had failed to establish that he received

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

      that because neither trial nor appellate counsel provided testimony in the

      Court of Appeals of Indiana | Memorandum Decision 84A01-1511-PC-1964 | April 25, 2016   Page 5 of 11
      matter, the record contained no credible evidence from which to conclude that

      either’s performance was deficient. Culver argues that the post-conviction court

      abused its discretion in concluding that he failed to establish ineffective

      assistance of appellate counsel, in concluding that laches applied to bar his

      claims, and in denying his request for an evidentiary hearing.



                                 Discussion and Decision
                                             Standard of Review

[6]   Our standard for reviewing the denial of a PCR petition is well-settled:


              In reviewing the judgment of a post-conviction court, appellate
              courts consider only the evidence and reasonable inferences
              supporting its judgment. The post-conviction court is the sole
              judge of the evidence and the credibility of the witnesses. To
              prevail on appeal from denial of post-conviction relief, the
              petitioner must show that the evidence as a whole leads
              unerringly and unmistakably to a conclusion opposite to that
              reached by the post-conviction court.… Only where the evidence
              is without conflict and leads to but one conclusion, and the post-
              conviction court has reached the opposite conclusion, will its
              findings or conclusions be disturbed as being contrary to law.

      Hall v. State, 849 N.E.2d 466, 468, 469 (Ind. 2006) (internal citations and

      quotations omitted).


                            I. Denial of Evidentiary Hearing
[7]   Pursuant to Post-Conviction Rule 1(9)(b), “[i]n the event petitioner elects to

      proceed pro se, the court at its discretion may order the cause submitted upon

      affidavit.” Culver’s argument is essentially that the post-conviction court’s
      Court of Appeals of Indiana | Memorandum Decision 84A01-1511-PC-1964 | April 25, 2016   Page 6 of 11
denial of his request for an evidentiary hearing denied him the opportunity to

elicit testimony from his trial and appellate counsel. We cannot agree with the

premise that it was the post-conviction court’s denial of Culver’s request for a

hearing that prevented Culver from presenting his evidence. As previously

mentioned, neither Culver’s trial nor appellate counsel responded to Culver’s

questionnaires. Culver, however, sought no help from the post-conviction court

in enforcing his efforts to secure the evidence he sought. Although “[a]ll rules

and statutes applicable in civil proceedings including pre-trial and discovery are

available to the parties,” P.C. Rule 1(5), Culver availed himself of none of

them. It is well-settled that “[p]ro se litigants without legal training are held to

the same standard as trained counsel and are required to follow procedural

rules.” Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.

“This has consistently been the standard applied to pro se litigants, and the

courts of this State have never held that a trial court is required to guide pro se

litigants through the judicial system.” Id. The post-conviction court’s denial of

Culver’s request for an evidentiary hearing did not prevent Culver from

obtaining evidence from his trial and appellate counsel.1 Culver has failed to

establish an abuse of discretion in this regard.




1
  Culver also seems to argue that the post-conviction court improperly disposed of his claims of ineffective
assistance of counsel summarily. While it is true that summary disposition of ineffective assistance of
counsel claims is improper when the facts pled raise an issue of possible merit, see, e.g., Clayton v. State, 673
N.E.2d 783, 786 (Ind. Ct. App. 1996), the post-conviction court did not summarily dispose of Culver’s claim.
The post-conviction court denied Culver’s PCR petition after receiving evidence. To the extent that Culver
relies on authority related to summary disposition, that authority is inapposite.

Court of Appeals of Indiana | Memorandum Decision 84A01-1511-PC-1964 | April 25, 2016               Page 7 of 11
                II. Ineffective Assistance of Appellate Counsel
[8]    We review claims of ineffective assistance of counsel based upon the principles

       enunciated in Strickland v. Washington, 466 U.S. 668 (1984):


               Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
               L. Ed. 2d 674 (1984), 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 so much that “there is a reasonable
               probability that, but for counsel’s unprofessional errors, the result
               of the proceeding would have been different.” Id. at 687, 694,
               104 S. Ct. 2052; Lowery v. State, 640 N.E.2d 1031, 1041 (Ind.
               1994). …. Failure to satisfy either prong will cause the claim to
               fail. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999).

       French v. State, 778 N.E.2d 816, 824 (Ind. 2002).


[9]    Moreover, counsel is given wide discretion in determining strategy and tactics,

       and therefore courts will accord these decisions deference. Timberlake v. State,

       753 N.E.2d 591, 603 (Ind. 2001). “A strong presumption arises that counsel

       rendered adequate assistance and made all significant decisions in the exercise

       of reasonable professional judgment.” Id. “Whether a lawyer performed

       reasonably under the circumstances is determined by examining the whole of

       the lawyer’s work on a case.” Oliver v. State, 843 N.E.2d 581, 591 (Ind. Ct.

       App. 2006), trans. denied.


[10]   We review claims of ineffective assistance of appellate counsel using the same

       standard applicable to claims of trial counsel ineffectiveness. Ben-Yisrayl v.


       Court of Appeals of Indiana | Memorandum Decision 84A01-1511-PC-1964 | April 25, 2016   Page 8 of 11
       State, 729 N.E.2d 102, 106 (Ind. 2000). The petitioner must show that appellate

       counsel was deficient in his performance and that the deficiency resulted in

       prejudice. Id. Ineffective assistance claims at the appellate level of proceedings

       generally fall into three basic categories: (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 (Ind. 1997).


[11]   Culver’s claims of ineffective assistance of appellate counsel fall into the second

       or third categories: appellate counsel failed to (1) challenge statements by trial

       counsel made during voir dire that Culver characterizes as conceding his guilt,

       (2) challenge trial counsel’s alleged concession of his guilt by refusing voluntary

       manslaughter instructions, (3) properly investigate his mental health

       background, (4) secure an expert witness to testify regarding a voluntary

       intoxication defense, and (5) seek rehearing to argue that the Indiana Supreme

       Court applied the incorrect standard to evaluate Culver’s claim of ineffective

       assistance of trial counsel.


[12]   The post-conviction court concluded that Culver had failed to establish

       deficient performance by his appellate counsel because Culver did not present

       any evidence from his trial or appellate counsel. We conclude that this failure

       to present any testimony from Culver’s trial or appellate counsel is dispositive.

       In the end, we will not speculate on why the strategies or reasons raised by

       Culver were not advance by his counsel. See Villalon v. State, 956 N.E.2d 697,

       706 (Ind. Ct. App. 2011) (“At the hearing upon the motion to correct error, trial

       counsel was not called to testify. As such, no record has been developed as to

       Court of Appeals of Indiana | Memorandum Decision 84A01-1511-PC-1964 | April 25, 2016   Page 9 of 11
       trial counsel’s strategy or reasons underlying his decision not to offer an alibi

       defense. We decline to speculate.”); see also Whitener v. State, 696 N.E.2d 40, 42

       (Ind. 1998) (“We will not lightly speculate as to what may or may not have

       been an advantageous trial strategy as counsel should be given deference in

       choosing a trial strategy which, at the time and under the circumstances, seems

       best.”).


[13]   Suffice it to say that none of Culver’s specific claims of deficient performance,

       even if true, establish that he suffered any prejudice. As the Indiana Supreme

       Court correctly determined, evidence of Culver’s guilt was overwhelming,

       including testimony (1) from multiple witnesses placing Culver at the scene, (2)

       that he told his girlfriend that he had done something bad and to forget that he

       owned a black Adidas jacket, (3) that red stains on Culver’s clothing matched

       the victim’s blood to an extremely high degree of certainty, (4) that the ice pick

       removed from the victim’s right eye belonged to Culver, and (5) that Culver had

       told two witnesses that he would use an ice pick if he were to get into another

       fight and would stab his opponent in the eye with it. See Culver, 727 N.E.2d at

       1069. Because Culver failed to establish either deficient performance or

       prejudice, the post-conviction court did not abuse its discretion in denying

       Culver’s claim of ineffective assistance of appellate counsel.2




       2
         Because we conclude that Culver’s claims are without merit, we need not address the post-conviction
       court’s finding of laches.

       Court of Appeals of Indiana | Memorandum Decision 84A01-1511-PC-1964 | April 25, 2016         Page 10 of 11
[14]   The judgment of the post-conviction court is affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1511-PC-1964 | April 25, 2016   Page 11 of 11
