MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       Nov 30 2015, 7:58 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Devon Sterling                                          Gregory F. Zoeller
Pendleton, Indiana                                      Attorney General of Indiana
                                                        Eric P. Babbs
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Devon Sterling,                                         November 30, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1412-PC-891
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Kurt M. Eisgruber,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        49G01-0706-PC-105725



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1412-PC-891 | November 30, 2015     Page 1 of 15
                               Case Summary and Issues
[1]   Following a jury trial, Devon Sterling was found guilty of murder. The trial

      court entered judgment of conviction and sentenced Sterling to sixty years

      executed in the Indiana Department of Correction. On direct appeal, we

      affirmed Sterling’s conviction. Sterling v. State, No. 49A05-0910-CR-606 (Ind.

      Ct. App. Aug. 11, 2010), trans. denied. Thereafter, Sterling filed a petition for

      post-conviction relief wherein he alleged ineffective assistance of trial counsel

      and newly discovered evidence. The post-conviction court denied Sterling’s

      petition. Sterling, pro se, now appeals the denial of post-conviction relief,

      raising three issues for our review, which we consolidate and restate as: 1)

      whether the post-conviction court erred in concluding Sterling’s trial counsel

      was not ineffective; and 2) whether Sterling’s post-conviction counsel rendered

      ineffective assistance. Concluding trial and post-conviction counsel were not

      ineffective, we affirm.



                            Facts and Procedural History
[2]   We summarized the facts and procedural history of this case in Sterling’s direct

      appeal,

              On June 8, 2007, Sterling was attending the same neighborhood
              block party as the decedent, Dewayne Butts. Several months
              before, there had been a dispute between Dewayne and Sterling’s
              father concerning the ownership of a dog that, at the time,
              Dewayne had at his mother’s home. A physical argument
              ensued between Dewayne and Sterling’s father, and the dog was
              given to the Sterlings. Because of this prior confrontation, both
      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-PC-891 | November 30, 2015   Page 2 of 15
        Dewayne and his girlfriend, Marie Ball, were familiar with
        Sterling at the time of the block party.


        Before leaving the block party, Dewayne and Sterling had a tense
        encounter and had to be separated by Marie. Dewayne and
        Marie headed to her vehicle, accompanied by Marie’s daughter,
        DeAsia, and Dewayne’s mother, Judy Butts, and her niece,
        Rockita Brown. Before leaving, while all five were seated inside
        Marie’s vehicle, Dewayne and Marie were both shot multiple
        times. The shooter, standing outside the passenger’s window,
        was later identified by both Marie and Rockita as Sterling.
        Dehaven Butts, who was standing near the vehicle at the time of
        the shooting, identified Sterling as the man he witnessed running
        from the vehicle in the moments after the shooting. Dewayne
        died as a result of the gunshot wounds.


        Sterling turned himself into police on June 10, 2007, and was
        accompanied by his family, who had retained counsel for him.
        Detective David Labanauskas was aware that they were awaiting
        the arrival of counsel, but the interrogation proceeded when
        Detective Labanauskas learned that the attorney had been
        delayed. The State subsequently charged Sterling with the
        murder of Dewayne and the attempted murder of Marie.


        The case proceeded to a jury trial on September 29, 2008, during
        which Sterling testified about the dog incident, a .40–caliber gun
        he owned, and an asserted alibi defense that he subsequently
        withdrew at a second trial. The trial court [sic] resulted in a hung
        jury, and a mistrial was declared.


        A new trial commenced on July 20, 2009. Sterling’s motion to
        suppress the statement he made to the police was denied before
        the second trial. The second trial court admitted Sterling’s
        statement to Detective Labanauskas, along with a redacted
        version of Sterling’s testimony from the first trial, evidence of the

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-PC-891 | November 30, 2015   Page 3 of 15
               .40–caliber bullet and casings found in the vicinity of the crime,
               and evidence of the dog incident. However, the trial court did
               not allow Sterling to introduce evidence of another suspect.


               At Sterling’s second trial, Marie and Rockita both identified
               Sterling as the shooter with 100% certainty. In addition,
               Dehaven testified that he was certain he saw Sterling fleeing the
               scene in the moments after the shooting. On July 23, 2009, the
               jury found Sterling guilty of murder and not guilty of attempted
               murder.


      Id. at *1-2.


[3]   On December 9, 2009, while a direct appeal was pending, Sterling filed a pro se

      petition for post-conviction relief, alleging judicial misconduct and that his trial

      counsel, Robert Hammerle, rendered ineffective assistance.1 Because Sterling’s

      direct appeal was still pending and Hammerle was acting as Sterling’s appellate

      counsel, the post-conviction court granted the State’s motion to dismiss the

      post-conviction petition. Hammerle continued as appellate counsel in the direct

      appeal and argued on Sterling’s behalf the trial court abused its discretion in




      1
        As to the judicial misconduct claim, Sterling requested a new judge hear his post-conviction petition
      because the trial court judge allegedly showed prejudice and bias during the trial. As to the claim of
      ineffective assistance of trial counsel, Sterling alleged counsel failed to make proper objections at the
      defendant’s trial and sentencing hearing, and counsel failed to call Sterling’s key witnesses. Relevant here,
      Sterling specified,
             [C]ounsel should have made a verbal objection, are [sic] requested a new trial or made some
             jesture [sic] to the court at the defendant [sic] sentencing hearing when the State’s “Marie Ball”
             key witness made an inconsistent statement, different from the one that was made at the
             defendant’s second trial. (see both second and sentencing transcripts) One saying that the
             defendant was the shooter, other saying he was not the shooter.
      Appellant’s Appendix at 53. Sterling also claimed Marie Ball’s testimony should have been excluded as
      inadmissible hearsay.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-PC-891 | November 30, 2015             Page 4 of 15
      admitting, and excluding, certain evidence. Finding no reversible error, we

      affirmed Sterling’s conviction.


[4]   On April 4, 2011, Sterling re-filed his pro se petition for post-conviction relief.

      On May 2, 2012, Sterling, through post-conviction counsel Hillary Bowe Ricks,

      amended his petition.2 However, on June 28, 2012, Sterling filed a pro se

      motion to withdraw Bowe Ricks as counsel, and a motion to withdraw his post-

      conviction petition without prejudice. The post-conviction court granted

      Sterling’s motions. Two weeks later, Sterling filed a motion to reinstate both

      his petition for post-conviction relief, and Ricks as his post-conviction counsel.

      The post-conviction court granted the motion.


[5]   On October 1, 2013, Sterling amended his petition for the final time. Sterling’s

      petition alleged newly discovered evidence existed and Hammerle rendered

      ineffective assistance in failing to call key witnesses and in failing to object to

      certain comments made by the deputy prosecutor. Sterling did not allege

      Hammerle rendered ineffective assistance as appellate counsel.3 On December




      2
        In this amendment, Sterling claimed only ineffective assistance of trial counsel. Specifically, Sterling
      claimed trial counsel failed to object to improper comments by the deputy prosecutor and failed to call key
      witnesses. The amendment did not include any allegation the State used the perjured testimony of Marie
      Ball to convict Sterling.
      3
        We note there is a single reference to a claim of ineffective assistance of appellate counsel in both the State’s
      proposed findings of fact and conclusions of law, and the post-conviction court’s findings of fact and
      conclusions of law denying Sterling’s petition for post-conviction relief. However, neither the State, Sterling,
      nor the post-conviction court addressed at the evidentiary hearing whether Hammerle was deficient as
      appellate counsel. In addition, we note the record does not include Sterling’s proposed findings of fact and
      conclusions of law, assuming he did, in fact, file such proposed findings. Therefore, we presume the
      references to ineffective assistance of appellate counsel were due to the fact Hammerle represented Sterling at
      trial and on direct appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-PC-891 | November 30, 2015               Page 5 of 15
      8, 2014, the post-conviction court entered its findings of fact and conclusions of

      law denying Sterling’s petition for post-conviction relief. The post-conviction

      court concluded: 1) Sterling presented no evidence or argument to support his

      claim of newly discovered evidence;4 and 2) Hammerle was not deficient in

      failing to call certain witnesses and in failing to object to the deputy prosecutor’s

      comments. Sterling, pro se, now appeals. Additional facts will be provided as

      necessary.



                                  Discussion and Decision
                       I. Post-Conviction Standard of Review
[6]   “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. Post-

      conviction procedures create a narrow remedy for subsequent collateral

      challenges to convictions, and those challenges must be based on the grounds

      enumerated in post-conviction rules. Id. The petitioner must establish his

      claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).




      4
       On appeal, Sterling does not argue the post-conviction court erred in concluding he presented no evidence
      or argument to support his claim of newly discovered evidence.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-PC-891 | November 30, 2015         Page 6 of 15
[7]   A petitioner who has been denied post-conviction relief faces a “rigorous

      standard of review” on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).

      In reviewing the judgment of a post-conviction court, we consider only the

      evidence and reasonable inferences supporting the judgement. Hall v. State, 849

      N.E.2d 466, 468 (Ind. 2006). We may not reweigh the evidence or reassess the

      credibility of the witnesses. Id. The post-conviction court’s denial of post-

      conviction relief will be affirmed unless the evidence leads “unerringly and

      unmistakably to a decision opposite that reached by the post-conviction court.”

      McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002). Only where the evidence is

      without conflict and leads to but one conclusion, and the post-conviction court

      reached the opposite conclusion, will the court’s findings or conclusions be

      disturbed as being contrary to law. Hall, 849 N.E.2d at 469. Finally, we do not

      defer to the post-conviction court’s legal conclusions, but do accept its factual

      findings unless they are clearly erroneous. Ind. Trial Rule 52(A); Stevens v.

      State, 770 N.E.2d 739, 746 (Ind. 2002), cert. denied, 540 U.S. 830 (2003).


                   II. Ineffective Assistance of Trial Counsel
[8]   We review claims of ineffective assistance of counsel under the two-prong test

      set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim

      of ineffective assistance of counsel, the petitioner must show 1) his counsel’s

      performance was deficient, and 2) the lack of reasonable representation

      prejudiced him. Id. at 687-88. These two prongs are separate and independent

      inquiries. Manzano v. State, 12 N.E.3d 321, 326 (Ind. Ct. App. 2014), trans.

      denied, cert. denied, 135 S.Ct. 2376 (2015). Therefore, “if it is easier to dispose of

      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-PC-891 | November 30, 2015   Page 7 of 15
       an ineffectiveness claim on one of the grounds instead of the other, that course

       should be followed.” Talley v. State, 736 N.E.2d 766, 769 (Ind. Ct. App. 2000).


[9]    To satisfy the first prong, the petitioner must show counsel’s representation fell

       below an objective standard of reasonableness and counsel committed errors so

       serious petitioner did not have the “counsel” guaranteed by the Sixth

       Amendment of the United States Constitution. Garrett v. State, 992 N.E.2d 710,

       719 (Ind. 2013). To satisfy the second prong, the petitioner must show a

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

       would have been different. Id. “A reasonable probability is a probability

       sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at

       694.


[10]   Under this standard, “[c]ounsel is afforded considerable discretion in choosing

       strategy and tactics, and we will accord those decisions deference.” Timberlake

       v. State, 753 N.E.2d 591, 603 (Ind. 2001), cert. denied, 537 U.S. 839 (2002). We

       recognize a strong presumption counsel rendered adequate legal assistance. Id.

       To overcome this presumption, the defendant must offer “strong and

       convincing evidence . . . .” Smith v. State, 822 N.E.2d 193, 202 (Ind. Ct. App.

       2005), trans. denied.


[11]   Here, Sterling contends Hammerle rendered ineffective assistance in failing to

       object to statements made by the deputy prosecutor during the State’s closing

       argument and in failing to call key witnesses. As a result, Sterling claims he




       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-PC-891 | November 30, 2015   Page 8 of 15
       suffered prejudice because had Hammerle rendered reasonable representation,

       the result of trial may have been different. We disagree.


                                         A. Failure to Object
[12]   “To prove ineffective assistance for failure to object to the State’s closing

       argument, a defendant must prove that his objections would have been

       sustained, the failure to object was unreasonable, and that he was prejudiced.”

       Lambert v. State, 743 N.E.2d 719, 734 (Ind. 2001) (citation omitted), cert. denied,

       534 U.S. 1136 (2002). During closing argument, the deputy prosecutor alleged

       Hammerle had attempted to confuse and deceive the jury during trial:

               Hammerle is very, very good. I’ve been doing this a long time,
               and I like to think I’m pretty good at this. He’s very good. But
               you know what? Think about some of the things that were done
               there. Think about some of the questions. I had to write them
               down. I don’t usually have any notes, but I wrote them down. I
               can’t – I can’t characterize it any other way than an effort to
               confuse you or deceive you. He asked questions to the detective:
               Did Marie ever tell you that in her statement that the person that
               did it was the guy with the dog, the guy with the dog incident?
               No. Why do you ask that question? No. Because he’s got to get
               you to believe that she’s lying. Do you know what she said? It
               was the guy who Wayne hit with the nose. Aren’t they the same
               people? Wasn’t it the same person? Why does he ask you that
               question unless he’s trying to confuse you, make Marie out to be
               somebody who can’t remember or is telling you – not telling you
               the truth. It was the same person. She didn’t say it was the dog
               incident, no. She said it was the guy who Dewayne hit, his dad,
               with the nose. Aren’t those the same people? But why do that
               unless he’s trying to mislead you? You know, the glasses.
               Marie, you wear glasses, don’t you. He sits up there the whole
               time, he has her read the whole time and then tries to persuade

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-PC-891 | November 30, 2015   Page 9 of 15
               you that she’s got some vision problem so she couldn’t identify
               anybody. She didn’t have any problem reading anything that
               was there, but it’s trying to confuse you. Poor Rockita. One of
               the other things he said: Rockita, well, didn’t Judy pull you
               down after the shots? He knew she didn’t pull him [sic] down.
               He knows that. He’s got all those statements – the statement
               they made to the police, the deposition that was taken by Ms.
               Devane, the prior hearing, today. He had them all charted. Do
               you see all the notes (inaudible) there? He’s got them all charted
               like this. He knew very well that Judy didn’t pull him down, but
               he asked her leading questions: Didn’t Judy pull you down?
               Because if she says yes, then he’s going, well, then you couldn’t
               possibly have seen. Then do you know what he said? Well,
               didn’t you have your face over here like that? Well, yeah. He
               knew that. He knew that already. You only say those kinds of
               things when you’re a defense attorney if you’re trying to confuse,
               trying to create the illusion of reasonable doubt. So when he
               comes up here in a little bit, he’s going to say, you know, you
               might think [Sterling] did it, but that’s not good enough. Maybe
               he probably did it, but that’s not good enough. It’s proof beyond
               a reasonable doubt. You know, maybe he did it, I don’t know,
               but that’s not good enough. He used these confusion tactics,
               these lawyer tactics that are designed to try to create the illusion
               of reasonable doubt to confuse you . . . .


       Post-Conviction Relief (“PCR”) Hearing Exhibit C at 20-23.


[13]   Hammerle did not object to the statements. Instead, Hammerle specifically

       addressed the deputy prosecutor’s statements in his closing argument:


               If it please the Court, ladies and gentlemen, [Deputy Prosecutor]
               Cummings. No man in a free country should be denied the right
               to counsel in a fair trial. No man in a free county shall be denied
               the right to counsel in a fair trial. Who said that? John Adams.
               When? When he took up the case of Captain Preston at the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-PC-891 | November 30, 2015   Page 10 of 15
               Boston Massacre, when everybody told him to stay away from
               him because the emotions of the community wanted that man
               convicted, but John Adams knew that founding this country, put
               into our Constitution, is the fact that if we’ve got a country worth
               living in, if we’ve got a country where we’re going to protect our
               rights, then you’ve got to stand tall with an accused and he’s got
               the right to counsel. I will not apologize for that. I am proud of
               it . . . .
               ***
               But let me tell you this: That [Deputy Prosecutor] Cummings
               would stand here and take issue, that would take issue with me
               questioning the witnesses? Cross-examination is a
               Constitutionally guaranteed right. That he would belittle me,
               make fun of me because I would exercise that right, somehow
               cast aspersions or doubt that I’m something less or something
               sinister? This is as [sic] truth-seeking process . . . .


       Id. at 24-25. At the post-conviction evidentiary hearing, Hammerle stated why

       he did not object at trial:


               I’ve been around the horn too many times and tried too many of
               these type [of] cases where what I’m not going to do, when I still
               have my day and time to argue, is to get lost and let the jury
               think that I’m simply whining or can’t take a hard shot.


       PCR Hearing Transcript at 57.


[14]   It is evident Hammerle’s strategy to defuse the impact of the deputy

       prosecutor’s statements was not to object, but to specifically address the

       statements, and Sterling’s constitutional rights, during his closing argument.

       See Carter v. State, 738 N.E.2d 665, 676 (Ind. 2000) (noting it was reasonable for

       defense counsel to decide that objecting to comments made by the State during


       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-PC-891 | November 30, 2015   Page 11 of 15
       closing argument “would only agitate the jury when it was so close to getting

       the case”). Counsel is afforded considerable discretion in choosing strategy and

       tactics, and we are not persuaded Hammerle’s failure to object was

       unreasonable, and we are therefore not led to a conclusion opposite that

       reached by the post-conviction court. See McCary, 761 N.E.2d at 391.


                                  B. Failure to Call Witnesses
[15]   “A decision regarding what witnesses to call is a matter of trial strategy which

       an appellate court will not second-guess, although a failure to call a useful

       witness can constitute deficient performance.” Brown v. State, 691 N.E.2d 438,

       447 (Ind. 1998) (citation omitted). We will not declare counsel ineffective for

       failure to call a particular witness absent a clear showing of prejudice. Grigsby v.

       State, 503 N.E.2d 394, 397 (Ind. 1987).


[16]   The post-conviction court found Sterling’s counsel in his first trial presented the

       jury with Sterling’s proposed witnesses, his version of the facts, and his alibi

       defense. That trial resulted in a hung jury, with the jury voting 11-1 to convict.

       At the second trial, Hammerle took over as trial counsel and contemplated a

       change in strategy. The post-conviction court found Hammerle “reviewed all

       the discovery that was available to him from the first trial . . . and interviewed al

       [sic] of [Sterling’s] proposed witnesses.” Appellant’s App. at 140.


[17]   During the post-conviction hearing, Hammerle stated he interviewed Sterling’s

       proposed witnesses and not one witness could establish a credible and viable

       alibi for Sterling. Moreover, Hammerle testified many of the witnesses would

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-PC-891 | November 30, 2015   Page 12 of 15
       have lacked credibility in front of a jury and some would have corroborated the

       State’s theory by placing Sterling at the scene of the crime, thus mitigating an

       attempt to create reasonable doubt.5 After interviewing the witnesses and

       reviewing all of the discovery available from the first trial, Hammerle decided

       not to proceed with Sterling’s alibi defense. Instead, Hammerle pursued an

       aggressive reasonable-doubt defense by attacking the credibility of the State’s

       eyewitnesses—a decision he made after consulting with Sterling. See

       Timberlake, 753 N.E.2d at 603 (“Counsel is afforded considerable discretion in

       choosing strategy and tactics, and we will accord those decisions deference.”).

       Sterling fails to show he suffered prejudice due to Hammerle’s strategic decision

       not to call the proposed witnesses. Therefore, we are not led to a conclusion

       opposite that reached by the post-conviction court. See McCary, 761 N.E.2d at

       391.


           III. Ineffective Assistance of Post-Conviction Counsel
[18]   Sterling argues his post-conviction counsel rendered ineffective assistance by

       failing to raise whether Hammerle, in his capacity as both trial and appellate

       counsel, rendered ineffective assistance by failing to address the State’s alleged

       use of perjured testimony. The State counters, 1) Sterling’s argument that post-




       5
         For example, one of Sterling’s proposed witnesses, Quianna Johnson, would have testified the shooter’s
       body type did not match Sterling’s body type. However, her testimony would have also made “the fatal
       corroboration of the State’s case that the individuals came from across an alley from across the street, which
       was the very place that other witnesses had placed Mr. Sterling walking.” PCR Tr. at 53. Thus, this
       testimony not only would have likely defeated Sterling’s alibi defense, but would likely mitigate an attempt at
       creating reasonable doubt.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-PC-891 | November 30, 2015          Page 13 of 15
       conviction counsel rendered ineffective assistance does not present a reviewable

       claim, because counsel appeared and represented Sterling in a procedurally fair

       setting, and 2) Sterling procedurally defaulted on any claim the State used

       perjured testimony at trial because he did not include the claim in his direct

       appeal.


[19]   Although there are claims of ineffective assistance of trial and appellate counsel

       in regard to the allegedly perjured testimony, we do not interpret these as

       freestanding claims because they merely form the basis of Sterling’s claim of

       ineffective assistance of post-conviction counsel. Therefore, our sole focus is

       whether Sterling’s post-conviction counsel rendered ineffective assistance.


[20]   There is no federal or state constitutional right to counsel in post-conviction

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


               We therefore apply a lesser standard responsive more to the due
               course of law or due process of law principles which are at the
               heart of the civil post-conviction remedy. We adopt the standard
               that if counsel in fact appeared and represented the petitioner in a
               procedurally fair setting which resulted in a judgment of the
               court, it is not necessary to judge his performance by the rigorous
               standard set forth in [Strickland].


       Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989).


[21]   Here, post-conviction counsel actively advocated for Sterling throughout the

       post-conviction proceedings; she twice amended the petition for post-conviction

       relief, appeared at three separate evidentiary hearings, and subpoenaed

       witnesses. There is nothing in the record suggesting counsel did not appear and
       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-PC-891 | November 30, 2015   Page 14 of 15
       represent Sterling in a procedurally fair setting that resulted in a judgment of the

       court. Therefore, we are not persuaded Sterling received ineffective assistance

       of post-conviction counsel.



                                               Conclusion
[22]   The post-conviction court did not err in denying Sterling’s petition for post-

       conviction relief. Because Sterling fails to demonstrate he received ineffective

       assistance of trial or post-conviction counsel, we affirm the post-conviction

       court’s denial of post-conviction relief.


[23]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-PC-891 | November 30, 2015   Page 15 of 15
