Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be 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.

ATTORNEYS FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

STEPHEN T. OWEN                                  GREGORY F. ZOELLER
Public Defender of Indiana                       Attorney General of Indiana

JOANNA L. GREEN                                  JAMES B. MARTIN
Deputy Public Defender                           Deputy Attorney General
Indianapolis, Indiana                            Indianapolis, Indiana
                                                                           Apr 17 2014, 9:58 am

                              IN THE
                    COURT OF APPEALS OF INDIANA

MICHELLE D. GAUVIN,                              )
                                                 )
       Appellant-Petitioner,                     )
                                                 )
              vs.                                )      No. 79A02-1306-PC-542
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Respondent.                      )


                    APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                           The Honorable Thomas H. Busch, Judge
                             Cause No. 79D02-0807-PC-00006




                                       April 17, 2014



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Judge
                                   Case Summary and Issues

          Michelle Gauvin appeals the denial of her petition for post-conviction relief. She

raises multiple issues for our review, which we consolidate and restate as:

          1.    Whether there was an adequate factual basis for Gauvin’s guilty
          plea;
          2.    Whether the trial court committed structural errors in sentencing
          Gauvin to life without possibility of parole (“LWOP”); and
          3.    Whether Gauvin received effective assistance of counsel at trial and
          on appeal.
Concluding there was an adequate factual basis for the guilty plea, the claim of structural

error was an issue for direct appeal and not appropriate for post-conviction relief, and

Gauvin was not denied effective assistance of counsel at trial or on direct appeal, we

affirm.

                                 Facts and Procedural History

          The underlying facts of Gauvin’s case were laid out in her direct appeal to the

Indiana Supreme Court:

                  Aiyana Gauvin was born on December 12, 2000, to Christian and
          Cassandra Gauvin. Christian obtained custody of Aiyana on December 19,
          2003, following a Child in Need of Services proceeding. Christian and
          Aiyana subsequently moved in with Michelle, who married Christian on
          February 18, 2005. Michelle usually cared for Aiyana during the day;
          Christian cared for her in the evenings.
                  According to the Gauvins, Aiyana began exhibiting intermittent
          behavioral problems in summer 2004. They claimed that Aiyana
          sometimes acted defiantly or disrespectfully, would not stop picking scabs
          on her feet or pulling out her own hair, urinated and soiled herself or her
          bed, fell over and injured herself, and refused to eat or ate condiments out
          of the refrigerator during the night.
                  In response to Aiyana’s behavior, the Gauvins resorted to a number
          of disciplinary measures. Michelle often tied up Aiyana and put duct tape
          over her mouth. At times, Aiyana was bound to a play gate, or to a booster
          seat using “zip-type child cabinet safety locks.” Michelle frequently struck
          Aiyana with her hand or with pieces of a wooden cutting board. Michelle
          once bit Aiyana after the child had bitten her. Sometimes Michelle would
                                                2
leave Aiyana in Christian’s care when Michelle knew that Christian was
“fed up with her” and likely to physically abuse the child.
       Aiyana slept in a small room adjacent to the garage with a plywood
floor but no insulation or forced air heating. The room was “exceptionally
cold,” about ten to fifteen degrees colder than the rest of the house. To
prevent Aiyana from leaving the room during the night, the door was
sometimes tied shut and anchored to a chair in the next room. Aiyana’s
room contained a bed without bedding, and she was prevented at times
from sleeping even on that. Instead, she was forced to sleep bound either in
her booster seat or on a small plastic tray in the corner on the floor.
       The Gauvins also photographed Aiyana in varying states of bondage
and forced her to view these pictures of herself. In one of the photographs,
Aiyana is tied to her bed, wearing an overflowing diaper and lying in
excrement. Another shows Aiyana bound to a play gate and staring at
seven of these photographs. A digital camera found in the house contained
a memory card with two photographs still saved on it.
       On March 15, 2005, Michelle again tied Aiyana in the booster seat,
with her hands restrained behind her. Christian was particularly “fed up”
with Aiyana that night, and while Michelle was out of the house, he beat
her severely. When Michelle returned, Aiyana was still bound to the chair.
Michelle attempted to feed her a blended rice concoction, but Aiyana had
difficulty eating and vomited. In response, Michelle covered Aiyana's
mouth with duct tape and put her in her room to go to sleep, still strapped to
the booster seat. Michelle admitted knowing that Aiyana “probably needed
medical attention.” Nonetheless, she left Aiyana in this condition all night.
       The following morning, police and firefighters were called to the
Gauvin home on a report that a four-year-old child was choking. On
entering the home, emergency personnel found Aiyana not breathing,
without a pulse, and cold to the touch. She had red marks and bruising on
her face, arms, chest, and legs. Michelle explained to police that she had
found Aiyana unresponsive on the floor of the child’s room. When the
coroner arrived, she observed that Aiyana was “obviously deceased.”
       An autopsy revealed that Aiyana died from acute subdural
hemotoma [sic] caused by vigorous shaking or a blunt force injury to the
head within twenty-four hours of her discovery. Numerous bruises,
abrasions, and scratches covered Aiyana’s body, varying in age from less
than one day old to several days old. The pathologist estimated that Aiyana
had been struck at least four or five times on her head and more than two
dozen times on the rest of her body. Ligature marks were found on her
wrists. She was malnourished and dehydrated.
       In June 2005, as Michelle awaited trial for Aiyana’s death,
corrections officer Tammy Lynch of the Tippecanoe County Jail went to
Michelle’s cell to investigate a report that Michelle had attempted suicide.
During their conversation, Michelle said she was “tired of all the shit and
wanted to tell the truth.” She then stated, “I killed the little bitch. The little
                                        3
       bitch pissed me off and I killed her.” Lynch asked Michelle “if she was
       [saying] she had killed that baby girl.” Michelle responded, “Yes I killed
       the little bitch and she deserved it too.”

Gauvin v. State, 883 N.E.2d 99, 101-02 (Ind. 2008) (citations omitted).             Gauvin

ultimately entered a plea of guilty to murder, confinement, and neglect of a dependent

(the last two each a Class B felony), in exchange for the State not seeking the death

penalty. The trial court sentenced her to LWOP for murder, plus consecutive twenty year

terms for confinement and neglect. On direct appeal, Gauvin challenged the trial court’s

finding of torture as an aggravator and its rejection of extreme emotional disturbance as a

mitigator. She also challenged her sentence pursuant to Appellate Rule 7(B). Our

supreme court upheld her conviction and sentence, finding there was adequate proof to

support torture and while the trial court considered the proffered mitigator, it did not

abuse its discretion in rejecting it; and, under the facts of the case, her sentence was not

inappropriate. In dissent, Justice Sullivan reasoned that the mitigating circumstances in

Gauvin’s case were enough to persuade him she was deserving of sentence reduced to a

term of years, instead of LWOP, especially since she pled guilty to the crime, her co-

defendant had a much less severe sentence, and there had never been a similar case where

this sentence was upheld.

       Gauvin then filed a petition for post-conviction relief, alleging there was an

insufficient factual basis for her guilty plea, errors in sentencing rendered her sentence

unsound, and she received ineffective assistance of counsel at both trial and on appeal.

The post-conviction court denied her petition for post-conviction relief. Gauvin now

appeals. Additional facts will be provided as necessary.


                                             4
                                 Discussion and Decision

       At the outset, we note that in a petition for post-conviction relief, the petitioner

bears the burden of establishing grounds for relief by a preponderance of the evidence.

Bethea v. State, 983 N.E.2d 1134, 1138 (Ind. 2013). On appeal from the denial of relief,

the petitioner stands in the position of one appealing from a negative judgment and “must

show that the evidence as a whole leads unerringly and unmistakably to a conclusion

opposite that reached by the post-conviction court.” Id.

                           I. Factual Basis for the Guilty Plea

                                 A. Standard of Review

       A factual basis for a guilty plea “exists when there is evidence about the elements

of the crime from which a court could reasonably conclude that the defendant is guilty.”

Butler v. State, 658 N.E.2d 72, 77 (Ind. 1995). Requiring a factual basis ensures that, had

the defendant stood trial, she could have been convicted. Id. at 76. A court does not need

to find evidence proving guilt beyond a reasonable doubt to establish a factual basis for a

plea. Id. at 77. A court’s determination of an adequate factual basis arrives on appeal

with a presumption of correctness. Id. We will review this determination for an abuse of

discretion. Id.

                                 B. Gauvin’s Guilty Plea

       At the plea hearing, Gauvin’s counsel questioned her to establish a factual basis

for the guilty plea. Gauvin admitted to tying up Aiyana, paddling her with a wooden

cutting board, leaving her with her abusive father, and failing to seek medical attention;

she also admitting to knowingly undertaking all of those actions and that those actions


                                            5
resulted in Aiyana’s death. Then, the entirety of the State’s cross-examination consisted

of the following:

       State:  Ms. Gauvin, you understand the nature of the charge of murder,
               do you not?
       Gauvin: Yes.
       State:  And you’re admitting what’s contained therein as true, is that
               correct?
       Gauvin: Yes.

Appellant’s Appendix at 46.1                 The court took the plea under advisement until the

sentencing hearing. At the sentencing hearing, the State presented nineteen witnesses,

one of whom was corrections officer Tammy Lynch. Lynch testified that in June 2005,

Gauvin admitted to killing Aiyana. Based on all of the evidence presented, the court

concluded there was an adequate factual basis for Gauvin’s guilty plea, found two

statutory aggravating circumstances, and sentenced her to LWOP.

       In her petition for post-conviction relief, Gauvin challenged the sufficiency of the

factual basis, alleging there was little to no evidence to show whether Gauvin or Christian

inflicted the fatal blow to Aiyana and the evidence was therefore insufficient to support

the guilty plea.         In finding an adequate factual basis for the guilty plea, the post-

conviction court found Gauvin admitted to beating Aiyana and “intentionally beat Aiyana

knowing that the likely result was death.” Appendix to Brief of Petitioner-Appellant at

96.2

       The trial court ensured the State explained to Gauvin, on the record, that Gauvin

was alleged to have knowingly or intentionally killed another human; Gauvin stated she

understood.         Appellant’s Appendix at 35.                  She subsequently admitted what was
       1
           Appellant’s Appendix refers to the appendix filed in the direct appeal.
       2
           Appendix to Brief of Petitioner-Appellant refers to the appendix filed in the post-conviction relief appeal.
                                                           6
“contained therein as true.”      Id. at 46.   Further, she admitted that the actions she

knowingly undertook resulted in Aiyana’s death. Id. at 45. A witness also testified that

Gauvin admitted killing Aiyana. Based on Gauvin’s admissions and the other evidence

presented at the hearing, we conclude the evidence supported the post-conviction court’s

finding that the trial court did not abuse its discretion in finding an adequate factual basis

for Gauvin’s guilty plea.

                                    II. Structural Errors

       Gauvin raises two claims which she frames as “structural errors” made by the trial

court: the court impermissibly held Gauvin’s exercise of her right to silence against her,

and it considered irrelevant, inadmissible, and prejudicial evidence in sentencing her to

LWOP. The scope of relief available in a petition for post-conviction relief is “limited to

issues that were not known at the time of the original trial or that were not available on

direct appeal. Issues available on direct appeal but not raised are waived, while issues

litigated adversely to the defendant are res judicata.” Ward v. State, 969 N.E.2d 46, 51

(Ind. 2012) (quotations and citations omitted). These issues were available on direct

appeal and are therefore not appropriate for review in the post-conviction relief

proceedings.

                            III. Ineffective Assistance of Counsel

                                   A. Standard of Review

       Whether trial counsel offered effective assistance to a defendant is determined by

a two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). We must

assess whether counsel’s performance was deficient and whether the defendant was

prejudiced as a result of the deficient performance. Id. at 687. “A deficient performance
                                               7
is that which falls below an objective standard of reasonableness. Prejudice exists when

there is a reasonable probability that the result of the proceeding would have been

different but for defense counsel’s inadequate representation.” Ben-Yisrayl v. State, 729

N.E.2d 102, 106 (Ind. 2000) (citations and quotations omitted). If it is easier to dispose

of an ineffective assistance claim based upon a lack of prejudice without addressing

counsel’s performance, that is the course to follow. Strickland, 466 U.S. at 697.

                             B. Ineffective Assistance of Trial Counsel

        Gauvin was represented by three public defenders, all of whom were Criminal

Rule 24 qualified.3 The goal in Gauvin’s case was always to avoid the death penalty,

which counsel achieved through the plea agreement.                        Gauvin now claims, despite

reaching their goal, trial counsel was ineffective for three reasons, and the cumulative

effect was sufficient to cause her prejudice. We will address each in turn.

                                           1. Failure to Object

        Gauvin first argues her trial counsel was ineffective for failing to object to

irrelevant and prejudicial evidence because they did not understand the penalty phase in

capital sentencing is different than the penalty phase in ordinary felony sentencing. In

order to prevail on a claim of ineffective assistance due to failure to object, Gauvin must

prove that the objection would have been sustained and that she was prejudiced by the

failure. Timberlake v. State, 690 N.E.2d 243, 259 (Ind. 1997), cert. denied, 525 U.S.

1073 (1999).




       3
         Criminal Rule 24 creates standards for criminal litigation experience, training requirements, workload,
and compensation of counsel who are appointed to represent defendants in capital cases.
                                                       8
         Gauvin argues the State is limited only to relevant evidence and arguments which

prove statutory aggravators in a capital case; here, that the victim was under twelve and

that the victim was tortured while she was alive. As a general proposition, this is correct

(though evidence relevant to mitigating factors is also admissible). See Bivins v. State,

642 N.E.2d 928, 955, 957 (Ind. 1994) (“When the death sentence is sought, courts must

henceforth limit the aggravating circumstances eligible for consideration to those

specified in the death penalty statute . . . . [A]dmissibility of the . . . evidence in the

present case hinges upon its relevance to the death penalty statute's aggravating and

mitigating circumstances.”), cert. denied, 516 U.S. 1077 (1996). “A sentence of life

imprisonment without parole is imposed under the same standards and is subject to the

same requirements as the death penalty.” Holsinger v. State, 750 N.E.2d 354, 361 (Ind.

2001).     However, when testimony is offered at a sentencing hearing in which the

defendant is to be sentenced for both a capital offense and another crime, the evidence

may be admissible for consideration on the other crime under Indiana Code section 35-

38-1-7.1 (2005).        Veal v. State, 784 N.E.2d 490, 493 (Ind. 2003).                        “There is a

presumption that a court in any proceeding that is tried before the bench rather than

before a jury renders its decision solely on the basis of relevant and probative evidence.

The same is true of a sentencing hearing.”                  Id. (citations and quotations omitted).

Gauvin acknowledges the trial court recognized the statutory limitations on its

considerations during a pre-trial conference and during the sentencing hearing.4 Brief of

Petitioner-Appellant at 8.



         4
           Indeed, the trial court’s comments clearly reflect it was aware of the requirements in balancing the
aggravating and mitigating factors:
                                                      9
         Gauvin specifically objects to the admission of testimony from first responders

and Scott Hayden, the father of Gauvin’s two other children.                               The first responders

testified about the crime scene as they found it and incidents in which they had interacted

with Gauvin previously. Hayden testified about his prior relationship with Gauvin.

         We need not address whether the objections to this testimony would have been

sustained because Gauvin was not prejudiced from the admission of the challenged

statements. See Strickland, 466 U.S. at 697. Even if we found that an objection would

have been sustained, there is ample evidence properly admitted that Aiyana was under

twelve (indeed, this was undisputed) and Gauvin tortured Aiyana while she was alive; a

finding of even one of these statutory aggravators was sufficient to uphold Gauvin’s

sentence of LWOP. Gauvin’s counsel therefore was not ineffective in failing to object to

these statements.

                              2. Failure to Investigate and Cross-Examine

         Gauvin next claims that her trial counsel was ineffective for failing to investigate

claims of bias and thoroughly cross-examine some of the State’s witnesses, in particular,

Kathleen White and Tammy Lynch. Regarding the performance prong, counsel “is

afforded considerable discretion in choosing strategy and tactics, and we will accord that

decision deference. A strong presumption arises that counsel rendered adequate

assistance and made all significant decisions in the exercise of reasonable professional

judgment.” Ward, 969 N.E.2d at 51 (quotation omitted).


        The procedure for life without parole requires the Court to aggravate only based upon the specific
        alleged factors and to mitigate upon any factors that the defendant chooses to present . . . I should,
        to the extent that I can, make my decision solely upon the evidence that is presented to me under
        those criteria.
Appellant’s App. at 47.
                                                          10
       White was Gauvin’s neighbor and testified about the lack of racial animus in the

neighborhood. She also testified about instances where she saw Gauvin interact with

Aiyana. Gauvin’s counsel failed to elicit testimony from White admitting she called

Gauvin a racial slur as documented in a police report. Gauvin argues no strategic move

could have led to the decision not to cross-examine White more effectively because the

racial animus was to prove part of a mitigator, not attack White. Lynch, as mentioned

above, testified that Gauvin admitted to killing Aiyana in her presence. Gauvin argues

that circumstances in Lynch’s personal life biased Lynch against Gauvin, and that

“Lynch might have been influenced, even subconsciously, by her background in

testifying against someone accused of child abuse.” Brief of Petitioner-Appellant at 12.

The post-conviction court found that it was merely a tactical decision not to cross-

examine them at length, and it would have been an “excessive stretch of logic” to argue

Lynch was so influenced by events in her personal life as to lie about Gauvin’s

statements. App. to Brief of Petitioner-Appellant at 97.

       The failure to cross-examine White more thoroughly caused no prejudice. One of

Gauvin’s proposed mitigators was that after Gauvin was adopted, she was teased and

called “an [O]reo,” Brief of Petitioner-Appellant at 12, and she had difficulties growing

up as a bi-racial child in her neighborhood and at school. By extension, the racial

tensions in her neighborhood as an adult exacerbated that problem. Gauvin alleges

White’s testimony undermined this piece of mitigation and White should therefore have

been impeached on the issue of the neighborhood atmosphere. Gauvin has not shown a

reasonable probability that the result of the proceeding would have been different if

White had been impeached by the police report. The trial court found in its sentencing
                                            11
order that Gauvin had a “tragic childhood” that resulted in her Borderline Personality

Disorder. Appellant’s App. at 73. This shows that the court accepted, at least to some

extent, Gauvin’s proposed mitigator.        Thus, we are not led wholly to a conclusion

opposite that reached by the post-conviction court, and Gauvin was not denied effective

assistance of counsel in this respect.

       With regard to Lynch’s testimony, we do not believe Gauvin has established that

counsel’s performance in cross-examining Lynch fell below an objective standard of

reasonableness.    Lynch testified about speaking with Gauvin to investigate whether

Gauvin had attempted suicide in her cell. During that conversation, Gauvin admitted to

Lynch that she killed Aiyana.            Lynch then testified that immediately after this

conversation, she spoke with her sergeant, reported the conversation, and then filed a

report about the incident. Counsel thoroughly cross-examined Lynch to explore whether

anyone had followed up with Gauvin’s admission, or whether any other inmates who

were in the cell block also heard the confession.        Gauvin claims that counsel was

deficient because he should have explored Lynch’s potential bias on cross-examination as

Lynch had an abusive situation in her own family. At the post-conviction hearing,

Gauvin’s trial counsel stated he did not think Lynch’s family history would have a

bearing on her truthfulness. Transcript of Post-Conviction Relief Hearing at 26. We give

deference to trial counsel’s strategy and tactics and conclude the post-conviction court

did not err in concluding trial counsel used reasonable professional judgment and did not

render ineffective assistance of counsel.




                                               12
                         3. Failure to Present Mitigating Evidence

       Finally, Gauvin argues trial counsel was ineffective for failing to present

mitigating evidence from Gauvin’s brother that Gauvin intended to install flooring in

Aiyana’s bedroom and was going to finish the conversion process from garage to

bedroom. The alleged prejudice to Gauvin was that the State made an issue of the cold,

bare conditions of the room and the court considered these conditions in its sentencing

order. The post-conviction court determined that this mitigating evidence would not

“undo the fact that the victim was required to sleep there when [Gauvin’s] own children

had their own rooms which were finished, furnished, and warm while the victim was not

even permitted to sleep in her own bed.” App. to Brief of Petitioner-Appellant at 97.

Gauvin hoped to present mitigation evidence that in the future Aiyana would not have

had to live in such deplorable conditions. However, she does not dispute the fact that at

the time Aiyana was tortured and killed, Aiyana was forced to live in an unfinished room

that was colder than the rest of the house while Gauvin’s two other children each enjoyed

their own bedroom. Gauvin has not, and cannot, show the evidence as a whole leads

unerringly and unmistakably to a conclusion opposite that reached by the post-conviction

court. Bethea, 983 N.E.2d at 1138. She was not denied effective assistance of counsel

by the failure to present this proposed mitigating evidence.

                                   4. Cumulative Effect

       Gauvin argues the cumulative effect of the failure to object, investigate, cross-

examine, and offer evidence in mitigation amounted to ineffective assistance of counsel.

We find that each claim does not rise to the level of ineffective assistance; we further


                                            13
conclude that cumulatively, the claims fail to show Gauvin received ineffective assistance

of counsel.

                       C. Ineffective Assistance of Appellate Counsel

                                    1. Structural Errors

       As noted in Part II, supra, Gauvin claims there were structural errors that affected

her sentence: the court impermissibly held Gauvin’s exercise of her right to silence

against her, and it considered irrelevant, inadmissible, and prejudicial evidence in

sentencing her to LWOP. While these claims were forfeited for not being raised on direct

appeal, we may analyze them in the context of ineffective assistance of counsel for

failure to raise the issues.

       In addition to the Strickland two-pronged standard to evaluate counsel’s

performance, there are three recognized categories of alleged appellate counsel

ineffectiveness: denying access to an appeal, failing to raise issues, and failing to present

issues competently. Timberlake v. State, 753 N.E.2d 591, 604 (Ind. 2001), cert. denied,

537 U.S. 839 (2002).

       When reviewing a claim of ineffective assistance of appellate counsel
       regarding the selection and presentation of issues, the defendant must
       overcome the strongest presumption of adequate assistance. . . To prevail
       upon the claim of ineffective assistance of appellate counsel, the petitioner
       must show from the information available in the trial record or otherwise
       known to appellate counsel that appellate counsel failed to present a
       significant and obvious issue and that this failure cannot be explained by
       any reasonable strategy.

Seeley v. State, 782 N.E.2d 1052, 1059 (Ind. Ct. App. 2003), trans. denied.

         a. Failure to Raise Consideration of Gauvin’s Right to Silence on Appeal




                                             14
         Gauvin argues her appellate counsel was ineffective for failing to raise the issue of

the trial court allegedly holding it against her for not making a statement in allocution at

the end of the sentencing hearing, framing it as a violation of her Fifth Amendment right

to silence.5 The challenged portion of the sentencing order read:

         The Court also rejects the claim that Michelle played a minor role in a
         murder carried out by an accomplice. Because neither Michelle nor
         Christian have been truthful, the Court cannot determine precisely what
         happened. Michelle rejected the opportunity for [allocution]. The Court
         finds that Michelle intentionally inflicted the fatal blows. So whatever
         Christian’s culpability, and he has not yet been tried, Michelle is fully
         responsible for Aiyana’s death.

Appellant’s App. at 73.               The post-conviction court concluded that the challenged

statements in the sentencing order simply observe that neither Gauvin nor Christian

provided an account consistent with Aiyana’s injuries and summarize why circumstantial

evidence in this case was needed.

         Gauvin asserts the judge’s comment was akin to denying her right to exercise her

Fifth Amendment right to not incriminate herself. Aside from asserting that the trial

court used Gauvin’s silence against her in the sentencing decision, Gauvin does not

develop any further argument on this point of how appellate counsel was ineffective for

not raising this issue on appeal. Gauvin has failed to show how the evidence as a whole




         5
            Gauvin does not challenge her counsel as ineffective for failing to prepare her to make a statement in
allocution. Gauvin’s counsel was “surprised” by the chance for Gauvin to offer a statement in allocution at the
sentencing hearing, because he did not believe Gauvin had that right. Brief of Petitioner-Appellant at 15. Counsel
was correct about the law at the time. During Gauvin’s plea hearing in 2006, controlling authority in Indiana was
that the right of allocution applied only to those defendants who entered pleas of not guilty and, after a trial, received
a verdict or finding of guilt. See Minton v. State, 400 N.E.2d 1177 (Ind. Ct. App. 1980), disapproved of by
Biddinger v. State, 868 N.E.2d 407 (Ind. 2007). The right did not belong to a defendant who plead guilty. Fuller v.
State, 485 N.E.2d 117, 122 (Ind. 1985) overruled by Biddinger, 868 N.E.2d 407. The year after Gauvin’s plea
hearing, our supreme court concluded when a defendant who plead guilty makes a request to the court for the
opportunity to speak, the request should be granted and expressly overruled and disapproved of prior cases to the
contrary. Biddinger, 868 N.E.2d at 412.
                                                           15
leads unerringly and unmistakably to a conclusion opposite that reached by the post-

conviction court.

              b. Failure to Raise Admissibility of Certain Evidence on Appeal

       Gauvin next argues that appellate counsel was ineffective for failing to raise the

issue of irrelevant, inadmissible, and prejudicial evidence being admitted because trial

counsel failed to object.    We addressed those claims in the context of ineffective

assistance of trial counsel, Part III-B-1, supra. The reasoning by which we found trial

counsel did not render ineffective assistance of counsel applies equally to appellate

counsel on the same issues. Counsel was not ineffective with respect to these claims.

                                 2. Disparate Sentencing

       Gauvin finally argues that her sentence was disproportionately severe compared to

Christian’s sentence of fifty years for Class A felony neglect of a dependent and that

counsel was ineffective for failing to raise this issue on appeal. This is separate from the

argument made on her direct appeal pursuant to Appellate Rule 7(B). Gauvin’s counsel

knew this was an issue that could have been raised on direct appeal; he considered raising

it, but after researching the issue, determined the law was “horrible” and he could not

make a cogent argument. Tr. at 18. He decided then to allude to the issue in his brief and

discuss it more thoroughly at oral argument. Justice Sullivan, in dissent, agreed with the

argument that the punishment was disproportionately severe in light of Christian’s fifty-

year sentence. Gauvin, 883 N.E.2d at 105 (Sullivan, J., dissenting). Gauvin’s appellate

counsel’s strategy was to avoid drawing attention to negative law that could hurt

Gauvin’s position. His choice to frame the argument in the context of a 7(B) sentence

reduction was a reasonable strategy after concluding the law on proportionality was not
                                            16
favorable to her case. Gauvin therefore did not receive ineffective assistance of appellate

counsel for failure to raise the disproportionality of the sentence on appeal.

                                        Conclusion

       Concluding there was an adequate factual basis for the guilty plea, the claim of

structural error was an issue for direct appeal and not appropriate for post-conviction

relief, and Gauvin was not denied effective assistance of counsel at trial or on direct

appeal, we affirm.

       Affirmed.

BARNES, J., and BROWN, J., concur.




                                             17
