      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                             FILED
      court except for the purpose of establishing                      Apr 05 2017, 5:56 am

      the defense of res judicata, collateral                               CLERK
                                                                        Indiana Supreme Court
      estoppel, or the law of the case.                                    Court of Appeals
                                                                             and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                          Curtis T. Hill, Jr.
      Public Defender of Indiana                                Attorney General of Indiana
      John Pinnow                                               Monika Prekopa Talbot
      Deputy Public Defender                                    Deputy Attorney General
      Indianapolis, Indiana                                     Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Joseph Miller,                                            April 5, 2017
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                64A04-1609-PC-2121
              v.                                                Appeal from the
                                                                Porter Superior Court
      State of Indiana,                                         The Honorable
      Appellee-Respondent.                                      Roger V. Bradford, Judge
                                                                Trial Court Cause No.
                                                                64D01-1402-PC-918



      Kirsch, Judge.


[1]   Joseph Miller (“Miller”) appeals the denial of his petition for post-conviction

      relief, contending that the post-conviction court erred. On appeal, he raises the


      Court of Appeals of Indiana | Memorandum Decision 64A04-1609-PC-2121 | April 5, 2017      Page 1 of 11
      following restated issue for our review: whether Miller received ineffective

      assistance of his appellate counsel.


[2]   We affirm.


                                  Facts and Procedural History
[3]   The facts supporting Miller’s conviction as set forth by this court in an

      unpublished memorandum decision on his direct appeal are as follows:


              In July of 2009, then-nine-year-old M.S. traveled to Porter to visit
              her father, S.S., for the month. As she had during previous visits,
              M.S. also liked to visit with Miller, her paternal uncle. On July
              26, 2009, M.S. spent the night at Miller’s house after spending
              the day with Miller and his family. While several family
              members slept in other rooms, M.S. and Miller watched
              television in the living room, where a bed had been made for
              M.S. At some point, Miller “started rubbing” M.S. “[d]own
              there.” Tr. at 31. Miller then told M.S. to “l[ie] down and take
              off [her] shorts and underwear.” Id. Feeling “[r]eally scared,”
              M.S. did as she was told. Id. Miller then “put his thing in
              [M.S.’s.],” but she did not know how far inside he placed his
              penis. Id. at 32. He also licked her “down there” and had her
              touch his penis. Id. at 33. Miller then asked M.S. to go into the
              bathroom with him, but she refused.


              The next morning, M.S. reported the incident to A.P., her
              father’s girlfriend’s daughter, who later reported it to her mother,
              Natalie Hardesty. That evening, Hardesty reported M.S.’s
              account to S.S., who took M.S. to Porter Hospital. Janice Ault
              (“Ault”), an emergency room nurse and Sexual Assault Nurse
              Examiner, examined M.S. Id. at 63. Ault found “perihymenal
              redness,” or redness around the hymen, which is a “normal
              finding in children.” Id. at 78. She also found “a small, circular

      Court of Appeals of Indiana | Memorandum Decision 64A04-1609-PC-2121 | April 5, 2017   Page 2 of 11
              red area on the hymen,” id. at 79, which she considered normal
              and not necessarily an injury as “redness can be a normal
              finding.” Id. at 80.


      Miller v. State, No. 64 A03-1105-CR-204, *1-*2 (Ind. Ct. App. Nov. 16, 2011),

      trans. denied.


[4]   On July 31, 2009, the State charged Miller with two counts of Class A felony

      child molesting, Count I alleging that Miller “knowingly or intentionally

      perform[ed] or submit[ed] to sexual intercourse” with M.S. and Count II

      alleging that Miller “knowingly or intentionally perform[ed] or submit[ed] to

      deviate sexual conduct” with M.S. Appellant’s Trial App. at 2. The charging

      information listed Miller’s date of birth as “6-21-77.” Id. The body of the

      charging information did not separately allege that Miller was over the age of

      twenty-one at the time he committed the offenses, but it alleged that the

      offenses took place on or about July 26, 2009. Id. On February 1, 2010, Miller

      filed a motion in limine, seeking to exclude any mention of his choice to

      exercise his right to remain silent. The trial court denied the motion “as to the

      fact of [Miller] being invited to speak to the police and declining” but granted it

      “as to any argument using” the fact that he declined to speak to the police,

      ordering the State not to “ask the jury to draw any inference from that fact . . .

      .” Trial Tr. at 7.


[5]   A jury trial took place on March 7-9, 2011. During the testimony of Ault, the

      State moved to admit M.S.’s medical records, and Miller objected, arguing that

      the medical records contained several hearsay statements by M.S., which were

      Court of Appeals of Indiana | Memorandum Decision 64A04-1609-PC-2121 | April 5, 2017   Page 3 of 11
      not testified to in court. The State responded that any hearsay statements

      contained in the medical records were admissible under the exception for

      statements made for medical treatment, and the trial court overruled Miller’s

      objection. S.S. testified at the trial that Miller was about thirty-five years old

      and that in July 2009, Miller was over the age of twenty-one. Id. at 198. Miller

      did not testify during the trial. Miller’s parents and wife testified that they did

      not see or hear anything unusual the night M.S. spent the night. During his

      closing argument, Miller noted that the others present in the house did not hear

      anything unusual and that his wife never saw him leave the bedroom. In its

      rebuttal closing argument, the State stated that M.S.’s testimony was

      uncontroverted, but acknowledged that others in the home that night had

      testified that they did not hear anything. Miller did not object to the State’s

      argument. At the conclusion of the trial, the jury found Miller guilty of Count

      II, child molesting as a Class A felony. At sentencing, the trial court found

      Miller’s position of trust to be an aggravating circumstance and Miller’s lack of

      “charged” prior criminal history to be a mitigating circumstance. Sent. Tr. at

      38. Finding the aggravator and the mitigator to be equal in weight, the trial

      court sentenced Miller to the advisory sentence of thirty years.


[6]   Miller filed a direct appeal and was represented by counsel. On appeal, Miller

      alleged that the trial court abused its discretion in admitting M.S.’s medical

      records, the State committed prosecutorial misconduct in statements made

      during closing argument, and the trial court erred in sentencing him. A panel of

      this court affirmed the trial court in an unpublished memorandum decision, and


      Court of Appeals of Indiana | Memorandum Decision 64A04-1609-PC-2121 | April 5, 2017   Page 4 of 11
      the Indiana Supreme Court denied transfer. Miller v. State, No. 64 A03-1105-

      CR-204, *1-*2 (Ind. Ct. App. Nov. 16, 2011), trans. denied.


[7]   On January 14, 2014, Miller filed a pro se petition for post-conviction relief.

      On October 19, 2014, an amended petition was filed by Miller’s counsel, which

      alleged that Miller was denied the effective assistance of appellate counsel. An

      evidentiary hearing was held on this petition, and on August 31, 2016, the post-

      conviction court issued an order denying Miller’s petition for post-conviction

      relief. Miller now appeals.


                                     Discussion and Decision
[8]   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.

      Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006); Ben-Yisrayl v. State, 738 N.E.2d

      253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164 (2002). The proceedings do not

      substitute for a direct appeal and provide only a narrow remedy for subsequent

      collateral challenges to convictions. Reed, 856 N.E.2d at 1194. The petitioner

      for post-conviction relief bears the burden of proving the grounds by a

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


[9]   When a petitioner appeals a denial of post-conviction relief, he appeals a

      negative judgment. Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009). The

      petitioner must establish that the evidence as a whole unmistakably and

      unerringly leads to a conclusion contrary to that of the post-conviction court.

      Court of Appeals of Indiana | Memorandum Decision 64A04-1609-PC-2121 | April 5, 2017   Page 5 of 11
       Id. We will disturb a post-conviction court’s decision as being contrary to law

       only where the evidence is without conflict and leads to but one conclusion,

       and the post-conviction court has reached the opposite conclusion. Wright v.

       State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans. denied. In reviewing

       the judgment of a post-conviction court, appellate courts consider only the

       evidence and reasonable inferences supporting the post-conviction court’s

       judgment. Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans.

       denied. The post-conviction court is the sole judge of the weight of the evidence

       and the credibility of witnesses. Id. We accept the post-conviction court’s

       findings of fact unless they are clearly erroneous, and no deference is given to

       its conclusions of law. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007),

       trans. denied.


[10]   When evaluating a claim of ineffective assistance of counsel, we apply the two-

       part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Perry v.

       State, 904 N.E.2d 302, 308 (Ind. Ct. App. 2009) (citing Pinkins v. State, 799

       N.E.2d 1079, 1093 (Ind. Ct. App. 2003), trans. denied), trans. denied. First, the

       defendant must show that counsel’s performance was deficient. Id. This

       requires a showing that counsel’s representation fell below an objective

       standard of reasonableness and that the errors were so serious that they resulted

       in a denial of the right to counsel guaranteed to the defendant by the Sixth and

       Fourteenth Amendments. Id. Second, the defendant must show that the

       deficient performance resulted in prejudice. Id. To establish prejudice, a

       defendant must show that there is a reasonable probability that but for counsel’s

       Court of Appeals of Indiana | Memorandum Decision 64A04-1609-PC-2121 | April 5, 2017   Page 6 of 11
       unprofessional errors, the result of the proceeding would have been different.

       Id. A reasonable probability is a probability sufficient to undermine confidence

       in the outcome. Id.


[11]   Further, counsel’s performance is presumed effective, and a defendant must

       offer strong and convincing evidence to overcome this presumption.

       McCullough v. State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012), trans. denied. 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

       that, at the time and under the circumstances, seems best. Perry, 904 N.E.2d at

       308 (citing Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998)). Isolated omissions

       or errors, poor strategy, or bad tactics do not necessarily render representation

       ineffective. McCullough, 973 N.E.2d at 74. The two prongs of the Strickland test

       are separate and independent inquiries. Manzano v. State, 12 N.E.3d 321, 325

       (Ind. Ct. App. 2014), trans. denied, cert. denied, 135 S. Ct. 2376 (2015). “Thus,

       ‘[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of

       sufficient prejudice . . . that course should be followed.’” Id. (quoting

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

       (2002)).


[12]   The standard of review for a claim of ineffective assistance of appellate counsel

       is the same as that for trial counsel. Massey v. State, 955 N.E.2d 247, 257 (Ind.

       Ct. App. 2011) (citing Bieghler v. State, 690 N.E.2d 188, 192 (Ind. 1997), cert.

       denied, 525 U.S. 1021 (1998)). The defendant must show that counsel’s

       performance was deficient in that counsel’s representation fell below an
       Court of Appeals of Indiana | Memorandum Decision 64A04-1609-PC-2121 | April 5, 2017   Page 7 of 11
       objective standard of reasonableness and that but for appellate counsel’s

       deficient performance, there is a reasonable probability that the result of the

       appeal would have been different. Id. at 257-58 (citing Overstreet v. State, 877

       N.E.2d 144, 165 (Ind. 2007), cert. denied, 555 U.S. 972 (2008)).


[13]   As with ineffective assistance of trial counsel claims, if it is easier to dispose of

       an ineffectiveness claim on the ground of lack of sufficient prejudice, that

       course should be followed. Id. at 258 (citing Timberlake, 753 N.E.2d at 603).

       There are three different grounds for claims of ineffective assistance of appellate

       counsel: (1) counsel’s actions denied the defendant access to appeal; (2)

       counsel failed to raise issues on direct appeal resulting in waiver of those issues;

       and (3) counsel failed to present issues well. Id. (citing Wrinkles v. State, 749

       N.E.2d 1179, 1203 (Ind. 2001), cert. denied, 535 U.S. 1019 (2002)).


[14]   Miller argues that he received the ineffective assistance of his appellate counsel.

       He alleges that his appellate counsel’s performance was deficient because

       counsel failed to raise the issue on appeal that he was convicted and sentenced

       for Class A felony child molesting when the charging information only alleged

       the elements for a Class B felony. Miller contends that this issue was significant

       and obvious on the face of the record since the body of the charging

       information did not allege that he was over twenty-one years of age, which was

       the element that would elevate the child molesting offense to a Class A felony.

       Miller further claims that this unraised issue was clearly stronger than the issues

       that his appellate counsel raised on direct appeal because he asserts that none of

       the issues raised on appeal had a strong likelihood of success. He also argues

       Court of Appeals of Indiana | Memorandum Decision 64A04-1609-PC-2121 | April 5, 2017   Page 8 of 11
       that he was prejudiced by his appellate counsel’s deficient performance because

       there was a reasonable possibility that, if the error had been raised on appeal,

       his conviction would have been modified to a Class B felony, and he would

       have been resentenced accordingly.


[15]   Miller was charged with Class A felony child molesting under Indiana Code

       section 35-42-4-3(a)(1), which at the time of Miller’s offense stated in pertinent

       part:


               A person who, with a child under fourteen (14) years of age,
               performs or submits to sexual intercourse or deviate sexual
               conduct commits child molesting, a Class B felony. However,
               the offense is a Class A felony if: (1) it is committed by a person
               at least twenty-one (21) years of age[.]


       Because Miller was charged with Class A felony child molesting, his age was an

       element of the crime. The caption of the charging information listed Miller’s

       date of birth as “6-21-77.” Appellant’s Trial App. at 2. The body of the charging

       information did not separately allege that Miller was over the age of twenty-one

       at the time he committed the offenses, but it alleged the elements of the offenses

       and that the offenses took place on or about July 26, 2009. Id.


[16]   At trial, Miller did not raise any objection to the charging information;

       therefore, appellate counsel would have been required to prove fundamental

       error occurred as to any challenge to the charging information on direct appeal.

       See Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (“A claim that has been

       waived by a defendant’s failure to raise a contemporaneous objection can be


       Court of Appeals of Indiana | Memorandum Decision 64A04-1609-PC-2121 | April 5, 2017   Page 9 of 11
       reviewed on appeal if the reviewing court determines that a fundamental error

       occurred.”). The fundamental error exception is “extremely narrow, and

       applies only when the error constitutes a blatant violation of basic principles,

       the harm or potential for harm is substantial, and the resulting error denies the

       defendant fundamental due process.” Id. “The error claimed must either

       ‘make a fair trial impossible’ or constitute ‘clearly blatant violations of basic and

       elementary principles of due process.’” Id. (quoting Clark v. State, 915 N.E.2d

       126, 131 (Ind. 2009)). The fundamental error exception is available only in

       egregious circumstances. Id.


[17]   Miller has not shown that he was prejudiced by his appellate counsel’s failure to

       raise the charging information issue on direct appeal. “‘The purpose of the

       charging instrument is to provide a defendant with notice of the crime of which

       he is charged so that he is able to prepare a defense.’” Hayden v. State, 19

       N.E.3d 831, 840 (Ind. Ct. App. 2014) (quoting Ben-Yisrayl, 738 N.E.2d at 271),

       trans. denied. Although the body of the charging information did not specifically

       state that Miller was over the age of twenty-one at the time he committed the

       charged offense, his birthdate was listed as “6-21-77” in the caption of the

       charging information and the body alleged that the charged offense occurred on

       or about July 27, 2009. Appellant’s Trial App. at 2. This put Miller on notice of

       what he was being charged with since the body of the charging information

       contained the elements of the underlying offense and the caption included his

       date of birth. Additionally, at trial, S.S. testified that Miller was about thirty-

       five years old at the time of the trial and that, in July 2009, Miller was over the


       Court of Appeals of Indiana | Memorandum Decision 64A04-1609-PC-2121 | April 5, 2017   Page 10 of 11
       age of twenty-one. Tr. at 198. The trial court gave Final Instruction 15, which

       instructed the jury that, in order to find Miller guilty of Class A felony child

       molesting, the State was required to prove that Miller was at least twenty-one

       years of age when he committed the offense. Appellant’s Trial App. at 103.


[18]   We, therefore, conclude that Miller was sufficiently on notice of the charges he

       was facing. See Young v. State, 30 N.E.3d 719, 723 (Ind. 2015) (“[i]t is ancient

       doctrine of both the common law and of our Constitution that a defendant

       cannot be held to answer a charge not contained in the indictment brought

       against him[,]” and “[t]he question, then, is whether the defendant has clear

       notice of the charge or charges against which the State summons him to

       defend.”). Based on the charging information, the evidence presented at trial,

       and the instructions given, Miller was adequately informed of the nature of the

       charge against him and was given a sufficient opportunity to prepare a defense.

       Therefore, had appellate counsel raised this issue on appeal, it is unlikely that

       this court would have concluded that fundamental error occurred and that the

       result of the appeal would have been different. The post-conviction court did

       not err in denying Miller’s petition.


[19]   Affirmed.


       Robb, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 64A04-1609-PC-2121 | April 5, 2017   Page 11 of 11
