MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any
                                                                   Jan 13 2017, 8:53 am
court except for the purpose of establishing
the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
estoppel, or the law of the case.                                      Court of Appeals
                                                                         and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Samuel L. Wait                                           Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General of Indiana
                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Samuel L. Wait,                                          January 13, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1512-PC-2304
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Terry C.
Appellee-Plaintiff                                       Shewmaker, Judge
                                                         Trial Court Cause No.
                                                         20C01-1003-PC-28



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1512-PC-2304 | January 13, 2017     Page 1 of 13
[1]   Samuel Wait appeals the denial of his petition for post-conviction relief from

      his Child Molesting conviction, arguing that the post-conviction court

      erroneously determined that he did not receive the ineffective assistance of trial

      and appellate counsel. He also argues that he did not receive the effective

      assistance of post-conviction relief counsel. Finding no error, we affirm.


                                                     Facts
[2]   The underlying facts are as follows:

              In March 2006, Heather [Statts] began a relationship with Wait.
              At that time, she was living in Ohio with S.S., her seven-year-old
              daughter. In June 2006, [Statts] and S.S. relocated to live with
              Wait in his camper. In late August 2006, they moved to a house
              in New Paris.


              After they moved to New Paris, Wait committed multiple acts of
              sexual abuse against S.S. He penetrated her vagina with his
              finger and his penis, penetrated her anus with his penis, and, on a
              separate day, inserted his penis into her mouth. On another day,
              Wait forced S.S. to take her clothes off and “hump” his penis.
              S.S. saw a tattoo on Wait’s penis of a red and green snake, the
              existence of which was stipulated to by the parties. Wait told
              S.S. that if she ever told anyone “that he touched her in her
              naughty places that he would hurt her.”


              Statts’s relationship with Wait deteriorated, and Statts and S.S.
              moved out of the New Paris home and returned to Ohio at the
              end of October 2006. But Statts and Wait resumed their
              relationship the following month, at which time Statts and S.S.
              returned to Indiana to live with Wait in Goshen. Approximately
              two months thereafter, S.S. told a friend’s mother about the
              abuse, and the mother reported it to the authorities.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1512-PC-2304 | January 13, 2017   Page 2 of 13
[3]   Wait v. State, No. 20A03-0904-CR-135, 2009 WL 3199127, at *1 (Ind. Ct. App.

      Oct. 7, 2009). On August 29, 2007, the State charged Wait with four counts of

      class A felony child molesting, and on December 31, 2008, the State alleged

      Wait to be an habitual offender and a repeat sexual offender. On January 13,

      2009, Wait’s jury trial took place. During the trial, the State orally moved to

      amend the dates in the charging information; the trial court denied the motion.

      The jury found Wait guilty as charged and Wait later admitted to being an

      habitual offender and repeat sexual offender.


[4]   On February 12, 2009, the trial court imposed forty-year sentences on each of

      the four convictions, with three to be served concurrently and one to be served

      consecutively. The trial court enhanced the sentences by thirty years in light of

      Wait’s status as an habitual offender, for an aggregate sentence of 110 years.


[5]   Wait appealed, challenging the sufficiency of the evidence to support multiple

      convictions of child molesting and the imposition of consecutive sentences.

      This Court affirmed Wait’s convictions and sentence. Id. Wait then filed a

      petition for post-conviction relief. The post-conviction court denied Wait’s

      petition. Wait now appeals.


                                   Discussion and Decision
[6]   Wait raises three issues on appeal: (1) that he received the ineffective assistance

      of counsel at trial; (2) that he received the ineffective assistance of counsel

      during his appeal; and (3) that he received the ineffective assistance of counsel

      during his post-conviction relief proceedings.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1512-PC-2304 | January 13, 2017   Page 3 of 13
                                      I.      Standard of Review
[7]   The general rules regarding the review of a ruling on a petition for post-

      conviction relief are well established:

              “The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
              “When appealing from the denial of post-conviction relief, the
              petitioner stands in the position of one appealing from a negative
              judgment.” Id. To prevail on appeal from the denial of post-
              conviction relief, a petitioner must show that the evidence as a
              whole leads unerringly and unmistakably to a conclusion
              opposite that reached by the post-conviction court. Weatherford v.
              State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
              conviction court in this case made findings of fact and
              conclusions of law in accordance with Indiana Post–Conviction
              Rule 1(6). Although we do not defer to the post-conviction
              court's legal conclusions, “[a] post-conviction court’s findings
              and judgment will be reversed only upon a showing of clear
              error—that which leaves us with a definite and firm conviction
              that a mistake has been made.” Ben–Yisrayl v. State, 729 N.E.2d
              102, 106 (Ind. 2000) (quotation omitted).


      Hollowell v. State, 19 N.E.3d 263, 268–69 (Ind. 2014).


                              II. Assistance of Trial Counsel
[8]   Wait argues that he was denied the effective assistance of trial counsel because

      his trial counsel did not pursue an alibi defense, allowed Wait to admit to being




      Court of Appeals of Indiana | Memorandum Decision 20A03-1512-PC-2304 | January 13, 2017   Page 4 of 13
      an habitual offender and a repeat sex offender, and did not object to the

      prosecutor’s vouching statements during closing argument. 1


[9]   A claim of ineffective assistance of trial 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)). “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). 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). “Indeed, most ineffective assistance of counsel claims can be




      1
        Wait also argues that his trial counsel did not cross-examine witnesses to show motive, bias, or personal
      interest. However, he does not develop an argument on this point, but instead directs us to another section of
      his brief about his post-conviction relief hearing. Therefore, we decline to address this particular issue. See
      Flynn v. State, 702 N.E.2d 741, 744 (Ind. Ct. App. 1998) (“Generally, a party waives any issue raised on
      appeal where the party fails to develop a cogent argument or provide adequate citation to authority and
      portions of the record.”).

      Court of Appeals of Indiana | Memorandum Decision 20A03-1512-PC-2304 | January 13, 2017           Page 5 of 13
       resolved by a prejudice inquiry alone.” French v. State, 778 N.E.2d 816, 824

       (Ind. 2002).


[10]   Wait argues that his trial counsel erred when counsel did not pursue an alibi

       defense. When the State orally moved to amend the charges, Wait’s trial

       counsel objected immediately, citing Wait’s due process rights and prejudice to

       him by the proposed amendment. Wait mistakenly asserts that the trial court

       never ruled on the State’s motion, which he claims resulted in prejudice to him

       because he was not able to provide an alibi for the proposed changed dates.

       However, the trial court issued a written order denying the State’s motion to

       amend. Trial Court App. p. 140. Because the State’s motion was denied, we

       fail to see how Wait’s trial counsel was deficient or how Wait was prejudiced

       by the proposed amendment.


[11]   Wait next argues that, because he received the ineffective assistance of counsel

       at trial, his admissions to being an habitual offender and repeat sex offender

       were not voluntarily, knowingly, or intelligently made. Wait argues that his

       trial counsel should have demanded a jury determination on these issues, and

       that a jury would have been more than likely to find in his favor. Wait offers no

       evidence to support his claim that his plea was not knowingly or voluntarily

       entered, and he does not dispute that the trial court fully advised him of the

       allegations, his rights, and the consequences of his admissions. The trial court

       asked him whether he understood that he was under no obligation to enter into

       an agreement admitting that he was an habitual criminal offender and a repeat

       sexual offender, and Wait replied affirmatively. The trial court asked him

       Court of Appeals of Indiana | Memorandum Decision 20A03-1512-PC-2304 | January 13, 2017   Page 6 of 13
       whether he understood that by admitting that he was a repeat sexual offender

       and an habitual criminal offender, he was waiving his right to require that the

       State prove those propositions to a jury beyond a reasonable doubt, and Wait

       replied affirmatively. Accordingly, Wait did not meet his burden to show that

       his trial counsel’s performance was deficient or that he was prejudiced by it.


[12]   Wait also contends that his trial counsel was ineffective when counsel did not

       object to the prosecutor’s improper vouching statements during the State’s

       closing argument, denying him a fair trial and resulting in fundamental error.

       When reviewing a claim of prosecutorial misconduct, we determine (1) whether

       the prosecutor engaged in misconduct, and, if so, (2), whether the misconduct,

       under all of the circumstances, placed the defendant in a position of grave peril

       to which he should not have been subjected. Carter v. State, 956 N.E.2d 167,

       169 (Ind. Ct. App. 2011). The gravity of the peril turns on the probable

       persuasive effect of the misconduct on the jury’s decision, not on the degree of

       impropriety of the conduct. Id. For prosecutorial misconduct to be

       fundamental error, it must make a fair trial impossible or amount to clearly

       blatant violations of basic and elementary principles of due process and present

       an undeniable and substantial potential for harm. Id. at 170.


[13]   A prosecutor may not state his or her personal opinion regarding the credibility

       of a witness during trial, as such statements amount to vouching for a witness.

       Thomas v. State, 965 N.E.2d 70, 77 (Ind. Ct. App. 2012). However, “a

       prosecutor may comment as to witness credibility if the assertions are based on

       reasons arising from the evidence presented at trial.” Id.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1512-PC-2304 | January 13, 2017   Page 7 of 13
[14]   Wait challenges the following parts of the State’s closing argument as improper

       vouching:


               Society does not want torn and bleeding children coming into
               this courtroom. What society wants is they want it to be caught
               before it gets to S.S.’s stage.


                                                       ***


               To say that this child is lying means you have to come up with
               some reason as to why the child would lie. . . . There’s no way
               this child could even begin to create this conspiracy. And what
               did the mother say? The mother said that, sure, you know, she’s
               a kid, she does lie about little things, but the big stuff she’s not
               lying about. . . . You’ve got to have a good reason to discount
               this child. . . . And what mother puts a child through this when
               it’s not a custody fight? . . . There is no reason for a mother or a
               child to come forward and create a lie like this. . . . Is she trying
               to get attention? . . . I don’t think this attention was the type that
               a child would be looking for that she would not have backed out
               of this to walk away from this attention. So it’s not a lie, seeking
               attention; it’s simply the truth.


                                                       ***


               There’s nothing to be gained by coming forward with what is
               apparently going to be argued a lie. . . . All it did was cause
               incredible emotional harm in being able to talk about this. . . .
               [T]here’s simply no logical explanation for it other than it
               happened.


       Tr. p. 380-384.



       Court of Appeals of Indiana | Memorandum Decision 20A03-1512-PC-2304 | January 13, 2017   Page 8 of 13
[15]   We find that these statements constitute improper vouching for S.S.’s and her

       mother’s credibility. The credibility of S.S. was central to this case. We find

       that the prosecutor’s statements that S.S. and her mother had no reason to lie;

       that the jury would have to find a reason for S.S. to lie or to discount her story;

       and that the jury should believe S.S. because “it’s simply the truth” and that

       “there’s simply no logical explanation for it other than it happened” were not

       based on evidence presented in trial. We conclude, therefore, that these

       statements constituted improper vouching. See Lainhart v. State, 916 N.E.2d

       924, 938 (Ind. Ct. App. 2009) (finding that prosecutor’s statement during

       closing argument that “if any officer would even come close to not putting out

       exactly what happened telling the truth, they’re out” constituted improper

       vouching and commentary on the justness of the cause).


[16]   The prosecutor’s assertion that “there’s nothing to be gained by coming forward

       with” the allegation because it would only “cause incredible emotional harm in

       being able to talk about this” was also inappropriate. Tr. p. 384. The

       prosecutor’s assertion that bringing forward the allegation caused “incredible

       emotional harm” suggested that the prosecutor knew that S.S. was telling the

       truth. See Brummett v. State, 10 N.E.3d 78, 87 (Ind. Ct. App. 2014) (finding that

       the prosecutor could say that a “witness had nothing to gain by, by being here

       today” but that the prosecutor improperly vouched for a witness by saying that

       “[h]e just had to do the right thing” because it suggested that the prosecutor

       knew that the witness was telling the truth).




       Court of Appeals of Indiana | Memorandum Decision 20A03-1512-PC-2304 | January 13, 2017   Page 9 of 13
[17]   However, we cannot say that this misconduct placed Wait in a position of grave

       peril. During the trial, the jury heard the testimony of S.S., who testified that

       Wait penetrated her in three different ways, forced her to perform fellatio, and

       forced her to remove her clothes and “hump” his penis. Wait, slip op. at 3. It is

       unlikely that the jury found Wait guilty of child molesting for a reason other

       than the evidence introduced at trial. Any harm done by the prosecutor’s

       assertions in the closing argument was not substantial, and did not result in

       fundamental error. As a result, we find that the post-conviction court did not

       err by concluding that Wait did not receive the ineffective assistance of trial

       counsel.


                                         III. Appellate Counsel
[18]   Wait argues that appellate counsel was ineffective because counsel did not raise

       the issues of the State’s third amendment to the charges, the prosecutorial

       misconduct of improper vouching, and his sentence.2


[19]   The standard of review for claims of ineffective assistance of appellate counsel

       is the same as that for trial counsel in that the defendant must show appellate

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

       in prejudice. E.g., Hollowell, 19 N.E.3d at 269. Ineffectiveness is rarely found




       2
         Wait also argues that appellate counsel was ineffective because counsel did not raise the issue of Wait’s trial
       counsel not eliciting sufficient testimony from a defense witness. To support his argument, Wait directs us to
       a discussion of his post-conviction relief hearing. Because he does not present a cogent argument, he waives
       this issue.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1512-PC-2304 | January 13, 2017            Page 10 of 13
       when the issue is the failure to raise a claim on direct appeal. Taylor v. State,

       717 N.E.2d 90, 94 (Ind. 1999). The decision as to what issues to raise on

       appeal is one of the most important strategic decisions made by appellate

       counsel, and we give considerable deference to those decisions. Bieghler v. State,

       690 N.E.2d 188, 195 (Ind. 1997). To succeed on this claim, the petitioner must

       show that the unraised issue was significant, obvious, and clearly stronger than

       the issues that were raised. Id. at 194.


[20]   Wait argues that appellate counsel was ineffective because appellate counsel did

       not raise the issue of the State’s amendment to the charges. However, as

       discussed above, the trial court denied the State’s motion to amend the charges.

       Accordingly, appellate counsel was not deficient in not raising this issue.


[21]   Wait also argues that appellate counsel was ineffective because counsel did not

       raise the issue of prosecutorial misconduct nor did his counsel challenge his

       sentence. As for the prosecutorial misconduct, we have already found no

       fundamental error, so Wait’s appellate counsel did not err in not raising it on

       appeal. As for his sentence, his appellate counsel already challenged it during

       his direct appeal, arguing that the trial court erred by ordering one of the four

       sentences to be served consecutively to the other three concurrent terms; we

       affirmed the trial court’s decision. Wait, slip op. at 3-4. During Wait’s post-

       conviction hearing, one of his appellate attorneys testified that “viable issues

       were somewhat limited,” post-conviction tr. p. 14, and discussed the decision-

       making process about which issues to raise on direct appeal. Wait’s appellate

       attorneys acted based on strategy, and we give great deference to their

       Court of Appeals of Indiana | Memorandum Decision 20A03-1512-PC-2304 | January 13, 2017   Page 11 of 13
       decisions. Accordingly, Wait has not shown that his appellate counsel was

       deficient or that he was prejudiced by their performance.


                          IV. Post-Conviction Relief Counsel
[22]   Wait argues that post-conviction relief counsel was ineffective because counsel

       did not competently represent him. Specifically, Wait asserts that counsel did

       not present adequate additional evidence, did not make cogent arguments

       concerning Wait’s ineffective assistance of counsel claims, did not adequately

       question his witnesses, and did not make cogent arguments against Wait’s

       sentence enhancement.


[23]   There is no constitutional right under the federal or state constitution to counsel

       in post-conviction proceedings. Hill v. State, 960 N.E.2d 141, 145 (Ind. 2012).

       “When evaluating post-conviction counsel, courts inquire whether ‘counsel in

       fact appeared and represented the petitioner in a procedurally fair setting which

       resulted in a judgment of the court.’” Id. (citing Baum v. State, 533 N.E.2d

       1200, 1201 (Ind. 1989)).


[24]   Wait’s first post-conviction counsel filed a petition that listed five grounds for

       relief; the post-conviction court allowed the claims of ineffective assistance of

       trial and appellate counsel to go forward, finding the others to have been

       waived, res judicata, or abandoned. Wait’s second post-conviction counsel

       called and questioned witnesses, including one of Wait’s trial attorneys, one of

       Wait’s appellate attorneys, and a witness not called during Wait’s trial, and

       submitted proposed findings of fact and conclusions of law. In short, his

       Court of Appeals of Indiana | Memorandum Decision 20A03-1512-PC-2304 | January 13, 2017   Page 12 of 13
       counsel appeared and represented him in a procedurally fair setting, and the

       post-conviction court rendered a judgment on the merits of his claims. We find

       that Wait did not receive the ineffective assistance of post-conviction counsel.


[25]   The judgment of the post-conviction court is affirmed.


       Mathias, J., concurs.


       Pyle, J., concurs in result.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1512-PC-2304 | January 13, 2017   Page 13 of 13
