MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be
                                                                               Mar 01 2019, 7:42 am
regarded as precedent or cited before any
court except for the purpose of establishing                                       CLERK
                                                                               Indiana Supreme Court
the defense of res judicata, collateral                                           Court of Appeals
                                                                                    and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Lavonte Wilderness                                       Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General of Indiana

                                                         George P. Sherman
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Lavonte Wilderness,                                      March 1, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-871
        v.                                               Appeal from the
                                                         Allen Superior Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause Nos.
                                                         02D06-1503-F3-23, 02D06-1706-
                                                         PC-65



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-871 | March 1, 2019                           Page 1 of 15
                                             Case Summary
[1]   Lavonte A. Wilderness was convicted following a jury trial of Level 1 felony

      rape, Level 5 felony criminal confinement, Level 6 felony strangulation. This

      court upheld his convictions on direct appeal. Wilderness thereafter filed a pro

      se petition for post-conviction relief, which the post-conviction court denied.

      Wilderness now appeals, still pro se, and raises two issues:


              I. Whether the post-conviction court erred when it denied his
              petition without first holding an evidentiary hearing; and


              II. Whether the post-conviction court’s decision that Wilderness
              was not denied the effective assistance of trial counsel was clearly
              erroneous.


[2]   We affirm.


                                   Facts & Procedural History
[3]   The facts as found on direct appeal are, in part:


              On the evening of August 11, 2014, L.S. was making the return
              trip to her home in Decatur, Indiana after visiting her family in
              Chicago for the weekend. She took a bus from Chicago to Fort
              Wayne, where she had left her car parked near the bus station.
              While making the three-block walk to her car after getting off the
              bus, L.S. crossed paths with Wilderness. As soon as she walked
              past him, Wilderness turned around and pointed a gun at L.S.’s
              back and told her to keep walking. When they reached L.S.’s
              car, Wilderness took her keys and cell phone. He unlocked the
              car, threw her luggage in the trunk, and got in the passenger side.
              While pointing the gun at her, he told L.S. to get into the car and
              drive. L.S. told him that she did not have enough gas in the car,

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-871 | March 1, 2019   Page 2 of 15
              so they stopped at a gas station. Wilderness threatened to shoot
              L.S. in the gas station if she did not behave normally.


              After L.S. put gas in the car, Wilderness directed her to drive to a
              dead-end street. Wilderness then yanked the gearshift into park
              and began choking L.S. He then got out of the car and walked
              around to the driver’s side, where he resumed choking L.S.
              When L.S. tried to fight back, Wilderness punched her in the
              eye. Wilderness then dragged L.S. out of the car and raped her
              vaginally and anally. Afterward, Wilderness got up and walked
              away. L.S. vomited on the ground, then got into her car and
              drove home.


              While en route to Decatur, L.S. called Theresa Bodle, who went
              to L.S.’s house and found her lying on the floor, crying and
              shaking in a fetal position. Bodle called the police and took L.S.
              to a medical center where she underwent a sexual assault
              examination. DNA samples collected during the exam were
              consistent with the DNA profile of Wilderness.


      Wilderness v. State, No. 02A03-1510-CR-1725, slip op. at *1 (Ind. Ct. App. April

      26, 2016), trans. denied.


[4]   On March 23, 2015, the State charged Wilderness with Count I, Level 3 felony

      rape; Count II, Level 5 felony criminal confinement; and Count III, Level 6

      felony strangulation. Thereafter, the State filed an amended information,

      which elevated Count I from a Level 3 felony to a Level 1 felony by adding the

      allegation that Wilderness committed the crime while armed with a deadly

      weapon. Wilderness was represented in the proceedings by attorney Anthony

      S. Churchward. Following the August 2015 jury trial, Wilderness was found



      Court of Appeals of Indiana | Memorandum Decision 18A-PC-871 | March 1, 2019   Page 3 of 15
      guilty as charged. The trial court sentenced Wilderness to an aggregate sentence

      of forty-eight and one-half years.


[5]   Wilderness appealed, still represented by Churchward, raising two issues: (1)

      the trial court improperly instructed the jury and (2) his sentence was

      inappropriate. With regard to the claim of instructional error, Wilderness

      argued that the trial court erred by giving Instruction No. 8, which read:


              It is not required that the deadly weapon be held on the victim at
              all times. The initial showing of deadly force and the victim’s
              awareness of the defendant’s continued constructive possession
              of the weapon may be sufficient to satisfy the “armed with a
              deadly weapon” element.


      Direct Appeal Appellant’s Appendix at 63. Among other things, Wilderness

      asserted that Instruction No. 8 was improper because it presumed that he

      possessed a gun, when that is a fact that the State was required to prove. The

      Wilderness court rejected his argument, finding that it “overlooks the other

      instructions given to the jury,” noting that “[b]oth the preliminary and final

      instructions informed the jury that the State was required to prove the elements

      of the offenses, including the ‘using or threatening the use of deadly force or . . .

      while armed with a deadly weapon’ element of the rape charge, beyond a

      reasonable doubt.” Wilderness, slip op at *3. The court was also unpersuaded

      that Wilderness’s sentence was inappropriate, and it affirmed his convictions.




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-871 | March 1, 2019   Page 4 of 15
[6]   On June 26, 2017, Wilderness filed his pro se petition for post-conviction relief. 1

      The petition, as later amended, alleged a number of errors, which, as best we

      can discern, can be summarized as follows: (1) it was error to give Instruction

      No. 8; (2) Wilderness received ineffective assistance of trial and appellate

      counsel based upon various alleged failures in performance; (3) certain evidence

      should not have been admitted; and (4) the State failed to prove “that [he] broke

      the law in any way shape or form.” Appellant’s Appendix Vol. 2 at 46. About a

      month later, the post-conviction court granted the State’s request that

      Wilderness submit his case by affidavit pursuant to Post-Conviction Rule

      1(9)(b), allowing a post-conviction court to “order the cause submitted upon

      affidavit” when a petitioner “elects to proceed pro se[.]” Wilderness filed an

      affidavit stating that he affirmed that the matters he had set forth in his petition

      for post-conviction relief were true to the best of his knowledge and that all of

      his evidence was in the trial records. On March 18, 2018, the post-conviction

      court issued Findings of Fact and Conclusions of Law denying Wilderness’s

      petition. Wilderness now appeals. Additional information will be provided

      below as needed.




      1
       According to the post-conviction court, Wilderness “declined to accept representation by the Public
      Defender of Indiana.” Appellant’s Appendix Vol. 2 at 93. We note that when citing to Appellant’s Appendix,
      we will cite to the electronic page number, not to Wilderness’s handwritten pagination of his Appendix.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-871 | March 1, 2019                   Page 5 of 15
                                          Discussion & Decision
[7]   In a post-conviction proceeding, 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). When appealing the denial of post-conviction

      relief, the petitioner stands in the position of one appealing from a negative

      judgment. Id. In order to prevail, the petitioner must demonstrate that the

      evidence as a whole leads unerringly and unmistakably to a conclusion opposite

      that reached by the post-conviction court. Id. “In other words, the defendant

      must convince this court that there is no way within the law that the court

      below could have reached the decision it did.” Smith v. State, 822 N.E.2d 193,

      198 (Ind. Ct. App. 2005), trans. denied. We disturb that court’s factual findings

      only where clearly erroneous, leaving us with a definite and firm conviction

      that a mistake has been made. Hanks v. State, 71 N.E.3d 1178, 1183 (Ind. Ct.

      App. 2017), trans. denied. We review legal conclusions de novo. Id. Pro se

      litigants without legal training are held to the same standard as trained counsel.

      Pannell v. State, 36 N.E.3d 477, 485 (Ind. Ct. App. 2015), trans. denied.


[8]   On appeal, Wilderness presents two issues for our consideration, namely that

      the post-conviction court erred (1) by failing to hold an evidentiary hearing

      before denying his petition and (2) in determining that his trial counsel was not

      ineffective. 2 We address each in turn.




      2
       We note that Wilderness appears to raise additional issues in the Argument section of his brief.
      Specifically, he contends that (1) it was error for the trial court to give Instruction No. 8 because it invaded

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-871 | March 1, 2019                          Page 6 of 15
                                               1. Evidentiary Hearing

[9]    Wilderness asserts that the post-conviction court erred when it failed to hold an

       evidentiary hearing on his petition. Initially, we observe that, other than

       making that general allegation, Wilderness has provided no argument,

       reasoning, or factual or legal support. Accordingly, his claim is waived

       pursuant to Ind. Appellate Rule 46(A)(8). See Jervis v. State, 28 N.E.3d 361, 368

       (Ind. Ct. App. 2015) (defendant’s post-conviction argument waived for failure

       to present a cogent argument).


[10]   Waiver notwithstanding, we find no error. In this case, the post-conviction

       court granted the State’s request that the matter proceed by affidavit pursuant to

       P-C.R. 1(9)(b), which states in relevant part:


                In the event petitioner elects to proceed pro se, the court at its
                discretion may order the cause submitted upon affidavit. It need
                not order the personal presence of the petitioner unless his
                presence is required for a full and fair determination of the issues
                raised at an evidentiary hearing. If the pro se petitioner requests




       the province of the jury to determine if he possessed a gun (arguing that “[t]his Instruction also [alleviates]
       the prosecution from proving all the elements of a Level 1 Rape charge”), and (2) the State failed to present
       sufficient evidence to convict him (arguing that “[t]hey could not prove I had a gun or that I committed the
       said offenses” and “[t]he prosecutor did not prove all the elements of a level 1 Rape charge”). Appellant’s Brief
       at 9-11. As to his claim of instructional error, Wilderness does not provide the language of the challenged
       instruction, as required by Ind. Appellate Rule 46(A)(8)(e), which states that when an error is predicated
       upon the giving or refusing of an instruction, “the instruction shall be set out verbatim in the argument
       section[.]” Regardless, on direct appeal this court already addressed and decided this challenge to Instruction
       No. 8. As the post-conviction court correctly found, the matter is res judicata and “Petitioner cannot raise
       the same complaint about the same instruction again in this post-conviction proceeding.” Appellant’s
       Appendix Vol. 2 at 97; see Lee v. State, 91 N.E.3d 978, 991 (Ind. Ct. App. 2017) (“If an issue was raised on
       direct appeal, but decided adversely to the petitioner, it is res judicata.”), trans. denied. As to Wilderness’s
       general claim of insufficient evidence, it was available but not raised on direct appeal, and therefore, is
       waived. Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-871 | March 1, 2019                        Page 7 of 15
                issuance of subpoenas for witnesses at an evidentiary hearing, the
                petitioner shall specifically state by affidavit the reason the
                witness’ testimony is required and the substance of the witness’
                expected testimony. If the court finds the witness’ testimony
                would be relevant and probative, the court shall order that the
                subpoena be issued. If the court finds the proposed witness’
                testimony is not relevant and probative, it shall enter a finding on
                the record and refuse to issue the subpoena.


       This court has interpreted the language of this rule “to mean that if the PCR

       court orders the cause submitted by affidavit under Rule 1(9)(b), it is the court’s

       prerogative to determine whether an evidentiary hearing is required[.]” 3 Smith,

       822 N.E.2d at 201. Indeed, “the decision whether to hold an evidentiary

       hearing . . . , like the decision to proceed by affidavit, is best left to the [post-

       conviction] court’s discretion” such that “we will review the post-conviction

       court’s decision to forego an evidentiary hearing when affidavits have been

       submitted under Rule 1(9)(b) under an abuse of discretion standard.” Id.


[11]   Here, Wilderness has not established, or even alleged, that the post-conviction

       court abused its discretion when it decided to forego an evidentiary hearing.

       The record reflects that after Wilderness filed his petition for post-conviction

       relief, the State filed a Motion to Require Petitioner to Submit Case by

       Affidavit, pursuant to P-C.R. 1(9)(b). Wilderness did not oppose the State’s

       request, and the post-conviction court granted the motion. As P-C.R. 1(9)(b)



       3
         The Smith court observed and discussed P-C. R. 1(4)(f) and (g), which concern summary disposition, but
       found that P-C.R. 1(9)(b) provided “a third and distinct way for a PCR court to rule on a petition without an
       evidentiary hearing.” Smith v. State, 822 N.E.2d 193, 201 (Ind. Ct. App. 2005), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-871 | March 1, 2019                     Page 8 of 15
       permits, Wilderness filed with the post-conviction court Requests for Issuance

       of Subpoenas, asking the post-conviction court “to issue subpoenas to witnesses

       at an evidentiary hearing” to Churchward, the prosecutor, and the nurse

       examiner. Appellant’s Appendix Vol. 2 at 53, 57, 64, 69, 73. The post-conviction

       court denied the requests but indicated that it would reconsider them “[i]f the

       pleadings demonstrate the need for a hearing.” Id. at 77. About four months

       later, the post-conviction court issued its Findings of Fact and Conclusions of

       Law, thereby reflecting its decision that no hearing was warranted.


[12]   On appeal, Wilderness has not shown how an evidentiary hearing would have

       aided him nor shown that the post-conviction court abused its discretion. We

       find no error with the post-conviction court’s decision to forego an evidentiary

       hearing on Wilderness’s petition.


                                   2. Ineffective Assistance of Counsel

[13]   Wilderness also contends that he was denied the effective assistance of trial

       counsel. To prevail on a claim of ineffective assistance of counsel, a petitioner

       must demonstrate both that his counsel’s performance was deficient and that

       the petitioner was prejudiced by the deficient performance. French v. State, 778

       N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668

       (1984)). Counsel’s performance is deficient if it falls below an objective

       standard of reasonableness based on prevailing professional norms. Id. To

       meet the appropriate test for prejudice, the petitioner must show that there is a

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

       the proceeding would have been different. Id. A reasonable probability is a
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-871 | March 1, 2019   Page 9 of 15
       probability sufficient to undermine confidence in the outcome. Perez v. State, 748

       N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong will cause the claim

       to fail. French, 778 N.E.2d at 824. Most ineffective assistance of counsel claims

       can be resolved by a prejudice inquiry alone. Id.


[14]   Wilderness argues that his trial counsel, Churchward, was ineffective because

       he “failed to produce ANY EVIDENCE AT ALL AT TRIAL.” Appellant’s

       Brief at 10 (emphasis in original). We reject his claim. Churchward actively

       participated at trial, posed objections, and cross-examined witnesses. Contrary

       to Wilderness’s claim that Churchward presented “no defen[s]e at all,” he

       pursued a line of defense based on the theory that the State could not prove that

       the sexual encounter was nonconsensual, focusing on inconsistencies in L.S.’s

       accounts of the incident that made her claim less believable. Appellant’s Brief at

       12. “Counsel is given ‘significant deference in choosing a strategy which, at the

       time and under the circumstances, he or she deems best.’” Benefield v. State, 945

       N.E.2d 791, 799 (Ind. Ct. App. 2011) (quoting Potter v. State, 684 N.E.2d 1127,

       1133 (Ind. 1997)). “‘[T]rial strategy is not subject to attack through an

       ineffective assistance of counsel claim, unless the strategy is so deficient or

       unreasonable as to fall outside of the objective standard of reasonableness.’” Id.

       (quoting Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998)).


[15]   Churchward chose not to pursue a defense that Wilderness did not have sexual

       relations with L.S., and given the State’s evidence, we cannot say that such a

       decision was unreasonable or deficient. That is, in addition to the DNA

       evidence which showed that the DNA profiles taken from a vaginal wash of

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-871 | March 1, 2019   Page 10 of 15
       L.S. were consistent with Wilderness, the State presented the testimony of L.S.,

       who testified in detail about what occurred on her way to her car from the bus

       station. Police found L.S.’s vomit on the ground where L.S. said the attack

       occurred. A bruise under her left eye was visible at the follow-up examination

       three days after the attack, which was consistent with L.S.’s testimony that

       Wilderness punched her in the eye. There was gravel on the ground in the area,

       and gravel fell out of her clothing as she prepared for the medical examination

       with a sexual assault examiner. The probable cause affidavit reflected that

       Wilderness admitted to police that he had sexual intercourse with L.S. in and

       next to the vehicle on the date and time in question, although he suggested that

       it was consensual.


[16]   To the extent that Wilderness’s claim is that Churchward did not call witnesses

       to testify in his defense, it is well-settled that “‘a decision regarding what

       witnesses to call is a matter of trial strategy which an appellate court will not

       second-guess.’” McCullough v. State, 973 N.E.2d 62, 83 (Ind. Ct. App. 2012)

       (quoting Johnson v. State, 832 N.E.2d 985, 1003 (Ind. Ct. App. 2005), trans.

       denied), trans. denied. Furthermore, in addressing Wilderness’s post-conviction

       claim that Churchward should have called him to testify in his defense, the

       post-conviction court found and concluded:


               In order to arrive at a reasonable doubt as to whether L.S.
               consented to engage in sexual activity with Petitioner, the jury
               would have had to find not only that L.S. might have been lying
               about the gun, the abduction, and the events at the place with a
               lot of rocks on the ground, but that she might have been putting
               on a highly convincing act in order to make it appear that she
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-871 | March 1, 2019   Page 11 of 15
               had been raped, complete with vomiting on the ground, crying
               and shaking, mud all over her, rocks falling out of her clothing,
               and a possibly self-administered black eye. No evidence, either
               in Petitioner’s account or elsewhere, has any tendency to suggest
               a motive for L.S. to lie and put on an act in this manner.
               Furthermore, in order to find that a reasonable doubt arose from
               Petitioner’s account, the jury would have had to accept that L.S.
               might have been so sick to her stomach as to vomit on the
               ground, and yet not too sick to wish to engage in sexual activity
               with a total Stranger amid, mud and rocks. A far more rational
               conclusion— indeed, it would appear, the only rational
               conclusion—would have been that the sexual activity was not
               only “mostly” Petitioner’s idea as he admitted, but was entirely
               his idea, and that L.S. did not consent.


       Appellant’s Appendix Vol. 2 at 101. Therefore, the post-conviction court

       concluded that “there is no reasonable probability that the outcome of

       Petitioner’s trial would have been different if Attorney Churchward had called

       Petitioner to testify[,]” and “Attorney Churchward therefore cannot be found

       ineffective for failing to do so.” Id. We agree. Wilderness has failed to

       establish that Churchward was deficient in his selection and presentation of a

       defense, and the post-conviction court’s decision was not clearly erroneous.


[17]   Wilderness also argues that Churchward was ineffective for failing to object to

       the victim’s testimony about a deadly weapon and failed to address alleged

       prior inconsistent statements regarding the presence of a gun to show that “she

       lied about a deadly weapon and her [w]hole story is uncorroborated and

       baseless.” Appellant’s Brief at 13. With regard to objections that allegedly should

       have been made, Wilderness fails to specify exactly to what testimony that


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-871 | March 1, 2019   Page 12 of 15
       Churchward should have objected. Furthermore, “[w]hen an ineffective

       assistance of counsel claim is based on trial counsel’s failure to make an

       objection, the appellant must show that a proper objection would have been

       sustained by the trial court.” Lambert v. State, 743 N.E.2d 719, 732 (Ind. 2001).

       Wilderness has not done so, and thus his claim fails.


[18]   With regard to Wilderness’s claim that Churchward failed to address prior

       inconsistent statements, the post-conviction court made findings of fact to the

       contrary. Specifically, it determined that Churchward questioned the detectives

       about L.S.’s prior inconsistent statements regarding a gun, and, therefore,

       “[Wilderness] is incorrect in asserting that Attorney Churchward failed to

       present the prior inconsistent statements to the jury.” Appellant’s Appendix Vol. 2

       at 100. The court concluded, “[T]he jury heard those statements along with

       L.S.’s own testimony and resolved the inconsistencies in favor of finding that

       Petitioner was in fact armed with a gun.” Id. Wilderness has failed to show

       that the post-conviction court’s decision was clearly erroneous.


[19]   Wilderness also claims that Churchward should have objected “to the

       prosecutor’s language of a deadly weapon.” Appellant’s Brief at 12. On this

       issue, the post-conviction court found that “Petitioner is correct in asserting that

       Attorney Churchward did not object to the prosecutor’s word about the gun,

       but an objection would not have been sustained because there was evidence that

       Petitioner did have a gun; the prior inconsistent statements went only to the

       weight, not the admissibility, of that evidence” and determined that “Attorney

       Churchward therefore cannot be found ineffective for failing to object.”

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-871 | March 1, 2019   Page 13 of 15
       Appellant’s Appendix Vol. 2 at 100. Wilderness has shown neither deficient

       performance nor prejudice as a result of Churchward not objecting to

       statements made by the prosecutor about a gun.


[20]   Lastly, Wilderness briefly suggests that Churchward was ineffective as appellate

       counsel as well, arguing that Churchward “slandered [him]” by indicating that

       Wilderness raped and strangled L.S., included incorrect information in the

       brief, and “submitted an incomplete Brief.” Appellant’s Brief at 14. Wilderness

       provides no specific factual or legal support beyond general allegations, and

       consequently his argument is waived. App. R. 46(A)(8). Waiver

       notwithstanding, the standard of review for assessing ineffective assistance of

       counsel is the same as 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. Henley v. State, 881 N.E.2d 639, 644 (Ind.

       2008). We find that Wilderness has shown neither.


[21]   When raised on collateral review ineffective assistance of appellate counsel

       claims generally fall into three basic categories: (1) denial of access to an appeal,

       (2) waiver of issues, and (3) failure to present issues well. Id. Here, on appeal,

       Churchward presented claims of instructional and sentencing error. To the

       extent that Wilderness believes that Churchward should have raised other

       claims on direct appeal, he fails to identify them. He also fails to explain if or

       how Churchward should have presented issues differently. Wilderness’s claim

       in this regard thus fails.



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-871 | March 1, 2019   Page 14 of 15
[22]   Judgment affirmed.


       Najam, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-871 | March 1, 2019   Page 15 of 15
