MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    May 09 2018, 9:40 am
regarded as precedent or cited before any                                     CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                         Curtis T. Hill, Jr.
Brownsburg, Indiana                                     Attorney General of Indiana

                                                        J.T. Whitehead
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Bruce K. Pond,                                          May 9, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        90A02-1709-PC-2226
        v.                                              Appeal from the Wells Circuit
                                                        Court
State of Indiana,                                       The Honorable Kenton W.
Appellee-Plaintiff.                                     Kiracofe, Judge
                                                        Trial Court Cause No.
                                                        90C01-1309-PC-6



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018                 Page 1 of 45
                                             Case Summary
[1]   Bruce Pond appeals the post-conviction court’s denial of his petition for post-

      conviction relief. We affirm.


                                                    Issues
[2]   Pond raises eight issues, which we consolidate and restate as:


                    I.         whether the post-conviction court properly
                               denied his motion for change of judge;

                   II.         whether the post-conviction court properly
                               denied his motion for finding of reckless mens
                               rea;

                  III.         whether the post-conviction court properly
                               excluded certain evidence;

                  IV.          whether the post-conviction court properly
                               denied Pond’s claim of ineffective assistance of
                               trial counsel; and

                   V.          whether the post-conviction court properly
                               denied Pond’s claim of ineffective assistance of
                               appellate counsel.


                                                    Facts
[3]   The facts, as stated in Pond’s direct appeal, follow:


              On July 22, 2011, Pond was drinking beer with his son Blake and
              a family friend on the back porch of his mother’s house in
              Ossian, Indiana. Pond became annoyed with a light shining
              from the pier of a neighboring pond. Matt Michuda (Michuda)
              along with his four year old son Jacob and two friends were
              fishing off the pier. Pond went inside the house, obtained a .22

      Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 2 of 45
        caliber rifle, and fired two shots toward the area where the light
        was shining. One of the shots hit Jacob in the right temple.
        Jacob cried for his father who picked him up and carried him
        back to Michuda’s nearby home. An ambulance arrived and
        took Jacob to a hospital where he was later pronounced dead.


        Officers arrived at the scene in the early morning hours of July
        23, 2011. After interviewing Matt’s friends, officers learned that
        the shots had come from Pond’s mother’s home. Officers
        contacted Pond, Blake, and the family friend and all three came
        to the police station where they were interviewed. Each one
        denied knowing anything about the shooting. In particular,
        Pond denied possessing any guns. However, later that day,
        Pond’s friend called the police to change his story and admitted
        that Pond had shot the rifle and that Blake had hid it before the
        officers arrived. After executing a search warrant, the officers
        located the rifle behind a barn on Pond’s mother’s property.
        Blake also later admitted that Pond had fired the shots and
        instructed him to hide the rifle behind the barn. Pond was
        arrested later that day and upon learning that Jacob had died
        admitted to possessing the rifle and firing the shots.


        On July 25, 2011, the State filed an Information charging Pond
        with Count I, reckless homicide, a Class C felony, I.C. § 35-42-1-
        5 and Count II, unlawful possession of a firearm by a domestic
        batterer, a Class A misdemeanor, I.C. § 35-47-4-6(a). On August
        2, 2011, the State filed an Amended Information amending
        Count I to murder, a felony, I.C. § 35-42-1-1(1).


        On December 16, 2011, the State filed an additional Information,
        charging Pond with Count III, voluntary manslaughter, a Class
        A felony, I.C. § 35-42-1-3(a). That same day, Pond entered into
        a plea agreement with the State in which he agreed to plead
        guilty to Count III in exchange for the State’s dismissal of Counts
        I and II as well as a charge of invasion of privacy in a separate
        case. The State also agreed to obtain written confirmation from
Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 3 of 45
              the United States Attorney’s Office that federal charges would
              not be brought against Pond for unlawful possession of a firearm.
              The plea agreement left Pond’s sentence to the trial court’s
              discretion, but capped the sentence at forty years. The trial court
              accepted Pond’s plea agreement and scheduled a sentencing
              hearing.


              On January 17, 2012, the trial court conducted the sentencing
              hearing. The State argued that the following factors justified
              aggravating Pond’s sentence: the harm suffered by Jacob was
              greater than the elements required to prove the offense; Jacob’s
              age; Pond’s criminal history and probationary status at the time
              of the crime; and his failure to cooperate with law enforcement.
              Pond argued that his prior offenses were dissimilar and minor in
              comparison to the instant offense, that the State and Jacob’s
              family benefitted from his guilty plea, and that he was
              remorseful. Although finding that Pond had no intent to kill
              Jacob, the trial court concluded that the mitigating factors
              advanced by Pond were of little or no weight while the
              aggravating factors were sufficiently supported and outweighed
              the mitigating factors. As a result, the trial court sentenced Pond
              to forty years of incarceration and ordered him to pay $9,958.64
              as restitution, which was later amended to $9,800.44.


      Pond v. State, No. 90A05-1202-CR-73, slip op. at 2-4 (Ind. Ct. App. Sept. 19,

      2012), trans. denied.


[4]   Pond appealed his sentence, arguing that the trial court abused its discretion

      when it sentenced him and that the trial court erred when it ordered him to pay

      restitution. We found no abuse of discretion and affirmed Pond’s forty-year

      sentence. We also found no error in the restitution order. Our supreme court

      denied transfer.


      Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 4 of 45
[5]   Pond filed a petition for post-conviction relief on September 13, 2013, and he

      filed a motion for change of judge on September 23, 2013, with a supporting

      affidavit. After a hearing, the post-conviction court denied the motion for

      change of judge. Pond then filed two amended petitions for post-conviction

      relief alleging ineffective assistance of trial counsel and appellate counsel. In

      July 2016, Pond filed a second motion for change of judge, which the post-

      conviction court denied. Pond also filed a “Motion for Finding of Reckless

      Mens Rea Due to State’s Concession in Brief of Appellee,” which the post-

      conviction court also denied. Appellant’s App. Vol. III p. 71.


[6]   At the evidentiary hearing, the post-conviction court excluded certain evidence

      offered by Pond, including the curriculum vitae (“CV”) and report of a ballistics

      expert, the CV and testimony of a crime scene reconstruction expert, and

      Pond’s DOC mental health records. The post-conviction court also excluded

      the CV and report of a toxicologist. The post-conviction court entered findings

      of fact and conclusions thereon denying Pond’s amended petition for post-

      conviction relief. Pond filed a motion to correct error, arguing that he was

      entitled to a change of judge for two additional reasons. The post-conviction

      court denied the motion, and Pond now appeals.


                                                  Analysis
[7]   Pond appeals the post-conviction court’s denial of his petition for post-

      conviction relief. A court that hears a post-conviction claim must make

      findings of fact and conclusions of law on all issues presented in the petition.

      Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009) (citing Ind. Post-Conviction
      Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 5 of 45
      Rule 1(6)). “The findings must be supported by facts and the conclusions must

      be supported by the law.” Id. Our review on appeal is limited to these findings

      and conclusions. Id. Because the petitioner bears the burden of proof in the

      post-conviction court, an unsuccessful petitioner appeals from a negative

      judgment. Id. (citing P-C.R. 1(5)). “A petitioner appealing from a negative

      judgment must show that the evidence as a whole ‘leads unerringly and

      unmistakably to a conclusion opposite to that reached by the trial court.’” Id.

      (quoting Allen v. State, 749 N.E.2d 1158, 1164 (Ind. 2001), cert. denied). Under

      this standard of review, “[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.” Id.


                                     I. Motion for Change of Judge

[8]   Pond argues that the post-conviction court erred by denying his motions for

      change of judge. Indiana Post-Conviction Rule 1(4)(b) provides:


              Within ten [10] days of filing a petition for post-conviction relief
              under this rule, the petitioner may request a change of judge by
              filing an affidavit that the judge has a personal bias or prejudice
              against the petitioner. The petitioner’s affidavit shall state the
              facts and the reasons for the belief that such bias or prejudice
              exists, and shall be accompanied by a certificate from the
              attorney of record that the attorney in good faith believes that the
              historical facts recited in the affidavit are true. A change of judge
              shall be granted if the historical facts recited in the affidavit
              support a rational inference of bias or prejudice. For good cause
              shown, the petitioner may be permitted to file the affidavit after
              the ten [10] day period.
      Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 6 of 45
[9]    The rule “requires the judge to examine the affidavit, treat the historical facts

       recited in the affidavit as true, and determine whether these facts support a

       rational inference of bias or prejudice.” Lambert v. State, 743 N.E.2d 719, 728

       (Ind. 2001) (quoting State ex rel. Whitehead v. Madison County Cir. Ct., 626 N.E.2d

       802, 803 (Ind. 1993)), cert. denied. A change of judge is neither “automatic” nor

       “discretionary;” rather, it requires a legal determination by the trial court. Id.

       We presume that a judge is not biased against a party. Id. Under the rule, the

       post-conviction court is disqualified from hearing a case only if the judge holds

       “a personal bias or prejudice.” Ind. Post-Conviction Rule 1(4)(b). “Typically,

       a bias is ‘personal’ if it stems from an extrajudicial source—meaning a source

       separate from the evidence and argument presented at the proceedings.” Id.

       The court’s adverse rulings on judicial matters do not indicate a personal bias

       toward a defendant. Harrison v. State, 707 N.E.2d 767, 790 (Ind. 1999), cert.

       denied.


[10]   Pond filed two motions for change of judge in the post-conviction proceedings.

       The first motion was filed ten days after his petition for post-conviction relief

       was filed. The second motion was filed in July 2016. In the first motion, Pond

       raised several allegations that he was entitled to a change of judge. In the

       second motion, Pond raised additional allegations. After the post-conviction

       court entered findings of fact and conclusions thereon denying Pond’s petition

       for post-conviction relief, Pond filed a motion to correct error raising additional

       arguments that he was entitled to a change of judge. On appeal, Pond argues

       that he was entitled to a change of judge because: (1) the judge was involved, as

       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 7 of 45
       a deputy prosecutor, in prior criminal prosecutions of Pond and used those

       convictions as aggravators in this case; (2) the judge made “baseless findings

       that Pond’s post-conviction counsel presented false evidence” and granted the

       State’s “motions before Pond had an opportunity to respond;” (3) the judge

       displayed emotion during sentencing and said that the case made him sick; (4)

       the judge refused to consider evidence regarding Pond’s character and

       background at sentencing and post-conviction hearings; (5) the judge has a

       “personal connection” to the victim’s grandparents; (6) the judge had a

       professional relationship with the former and current prosecuting attorneys; and

       (7) the judge made comments during the post-conviction proceedings about

       “riffraff.”1 Appellant’s Br. pp. 33-34.


[11]   Pond first argues that he was entitled to a change of judge because the judge

       was the deputy prosecutor in two other criminal cases against Pond, and Pond

       pled guilty to misdemeanor battery in both of those cases. Pond acknowledges

       that this is not a basis for automatic recusal. However, relying on Dishman v.

       State, 525 N.E.2d 284, 285 (Ind. 1988), he argues that recusal is required if

       “there is any factual dispute concerning the prior cases.” Appellant’s Br. p. 35.

       Pond does not explain what the factual dispute is regarding the prior battery




       1
         Pond also argues the post-conviction court used an incorrect legal standard in ruling on his motion for
       change of judge. Pond argues only that “the court found that some of the facts, in Pond’s affidavit and
       change of judge motion, were ‘inaccurate,’ ‘false,’ and/or ‘misleading.’” Appellant’s Br. p. 34. Pond fails to
       identify which facts were found inaccurate, false, and/or misleading and fails to include any other
       explanation in his argument. Pond has waived this argument by failing to provide cogent reasoning. See Ind.
       Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018                Page 8 of 45
       cases. In both cases, Pond pled guilty. He attempted to minimize his conduct

       during the sentencing hearing in this case; the fact remains, though, that Pond

       pled guilty in those cases. There is no factual dispute that would have

       warranted the judge’s recusal here.


[12]   Next, Pond argues that the judge made “baseless” allegations against his post-

       conviction counsel that she presented false evidence. Appellant’s Br. p. 36. In

       support of this argument, Pond relies upon findings that the post-conviction

       court made in the denial of the first motion for change of judge and in the order

       denying the petition for post-conviction relief. Pond raised this issue in his

       motion to correct error. Pond also contends that the post-conviction court

       granted two of the State’s motions before his counsel could respond. In both

       orders, the post-conviction court pointed out statements by Pond’s counsel that

       it considered misleading. These arguments do not demonstrate that the post-

       conviction court was biased against Pond. Rather, these orders are in the

       nature of an adverse ruling on a judicial matter.


[13]   Next, Pond argues that he was entitled to a change of judge because the judge

       wiped tears from his eyes when the victim’s mother made a statement during

       the sentencing hearing and because the judge said during the sentencing hearing

       that the case made him “sick to [his] stomach.” Exhibits Vol. V p. 24 (Ex. 1B

       p. 60). The fact that a judge uses “emotional language” in describing a

       defendant’s character and crime does not demonstrate personal bias or

       prejudice outside of the judicial function. Lambert, 743 N.E.2d at 729.

       Moreover, “[t]he mere fact a judge cries does not, in itself, demonstrate bias or

       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 9 of 45
       prejudice.” Cook v. State, 612 N.E.2d 1085, 1088 (Ind. Ct. App. 1993). Trial

       court judges are not required to be emotionless. Pond failed to demonstrate

       that he was entitled to a change of judge on this basis.


[14]   Next, Pond argues he was entitled to a change of judge because the judge

       “explicitly refused to consider almost all of the evidence that was submitted on

       Pond’s behalf at sentencing.” Appellant’s Br. p. 41. Specifically, several people

       submitted letters on Pond’s behalf for sentencing. Regarding those letters, the

       trial court stated:


               The Court also notes several letters filed with the presentence
               investigation report by family and friends of Mr. Pond’s. I note
               what appears to me to be only three of those letters were written
               by someone who actually knew Mr. Pond prior to this tragic
               event, those remaining letters are well meaning, but I think it’s
               hard to assess someone’s character when they have known them
               for less than six months and that Mr. Pond was incarcerated for
               that period of time that they have known him, so I place little
               weight on those letters. I think they speak to who he is today,
               but not maybe who [he] was on July 23rd. Of the letters that
               knew Mr. Pond prior to July 23rd [the] first letter talks about,
               one of his friends, Robert Levitz indicates that, basically says that
               he is compelled to ask for his, plead for Mr. Pond’s innocence.
               That response in the letter makes me think he either doesn’t
               believe what happened or completely misunderstands the actions
               of Mr. Pond, so I place little weight on that letter. The second
               letter is from Mr. Pond’s fiancé or girlfriend who describes him in
               the letter as a good person and she testified that way today
               despite the fact that she is a victim of an Allen County conviction
               for domestic violence at the hands of Mr. Pond. Ms. Klepper
               must, might find it however she wants, but the fact of the matter
               is Defendant pled guilty to that crime. She may wish to
               minimize it, but he pled guilty to that. So either he lied when he

       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 10 of 45
               pled guilty to it or something, I don’t know, but it happened and
               he was convicted of it. Last letter is written by his son, Blake
               Pond who calls, describes or characterizes this incident as an
               accident.


       Exhibits Vol. V pp. 21-22 (Ex. 1B pp. 57-58). It is incorrect to suggest that the

       judge refused to consider the letters; rather, the trial court assigned little weight

       to them, which was within the trial court’s prerogative. See Anglemyer v. State,

       868 N.E.2d 482, 491 (Ind. 2007) (“The relative weight or value assignable to

       reasons properly found or those which should have been found is not subject to

       review for abuse.”), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). The trial

       court assigning little weight to letters submitted on Pond’s behalf does not

       demonstrate personal bias or prejudice; rather, it is in the nature of an adverse

       ruling, which does not indicate a personal bias. Harrison, 707 N.E.2d at 790.

       Pond’s argument fails.


[15]   Next, Pond argues that the judge had a personal connection to the victim’s

       grandparents. The judge disclosed during the underlying proceedings that he

       attended the same church as the victim’s grandfather and that he sporadically

       participated in an organization with the victim’s grandfather. The judge noted

       that he was not “social friends” with the victim’s grandfather and that he did

       not believe an issue of impartiality arose. The parties did not object to the judge

       presiding over the criminal case. During the post-conviction proceedings, Pond

       raised the issue in his motion for change of judge. Our courts have held that a

       judge is not necessarily disqualified because of social relationships with the

       victim or victim’s family. See, e.g., Simmons v. State, 504 N.E.2d 575, 581 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 11 of 45
       1987) (holding that a change of judge was not required where the judge was a

       friend of the victim’s father because they were both members of the bar); Bixler

       v. State, 471 N.E.2d 1093, 1100-1101 (Ind. 1984) (holding that a change of judge

       was not mandated where the judge went to the same church as the victim’s

       family and had prepared a will for the stepfather of the victim’s mother), cert.

       denied; McKinney v. State, 873 N.E.2d 630, 640 (Ind. Ct. App. 2007) (holding

       that the defendant failed to demonstrate bias or prejudice where the victim’s

       mother was a former employee of the judge), trans. denied. Here, Pond

       demonstrated only that the judge was a member of the same church as the

       victim’s grandfather and that they were involved in the same organization.

       Pond has failed to demonstrate the type of relationship that would have

       required recusal.


[16]   Next, Pond argues that the judge had a professional relationship with the

       former and current prosecutors. Specifically, the former prosecutor, who

       prosecuted the case at the trial level and at the beginning of the post-conviction

       proceedings, was the judge’s former employer, and they had been partners at a

       private law firm. The current prosecutor was the judge’s co-worker at the

       prosecutor’s office, and they had been partners at a private law firm. Pond

       concedes that “[a] judge’s former professional associations with a prosecuting

       attorney are not automatic grounds for recusal.” Appellant’s Br. p. 47.

       However, he contends that the additional relationships as partners in a private

       firm differentiates this case. We disagree. Pond has failed to cite any authority

       or facts that suggest the judge’s former business relationships with the former


       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 12 of 45
       and current prosecutors demonstrate a personal bias or prejudice against the

       petitioner. See, e.g., Broome v. State, 687 N.E.2d 590, 596-97 (Ind. Ct. App.

       1997) (holding that the defendant was not entitled to a change of judge where

       the judge, as a former prosecutor, hired, trained and supervised the prosecutor

       on the defendant’s case), summarily affirmed in relevant part by Broome v. State, 694

       N.E.2d 280, 281 (Ind. 1998).


[17]   Finally, Pond argues that the judge made off-the-record comments after one of

       the post-conviction hearings regarding “riffraff” at a local street fair and having

       individuals with outstanding warrants arrested at the street fair. Appellant’s Br.

       p. 48. According to Pond, these comments would “cause an objectively

       reasonable person to believe that the court sees criminal defendants . . . as

       ‘riffraff’ who need to be kept out of Wells County.” Id. Pond made this

       argument in his motion to correct error, which the post-conviction court denied.

       “Expressions of impatience, dissatisfaction, annoyance, and even anger do not

       establish bias or partiality.” Rondeau v. State, 48 N.E.3d 907, 913 (Ind. Ct. App.

       2016), trans. denied. The comments did not specifically reference Pond or the

       case at issue. The fact that the judge expressed annoyance at people with

       criminal histories and active arrest warrants attending the street fair does not

       establish that the judge had a personal bias or prejudice against the petitioner.

       See, e.g., Matheney v. State, 688 N.E.2d 883, 897 (Ind. 1997) (“The articulation of

       observations by one judge to fellow judges concerning what the former

       perceives to be a trend on the part of defendants or post-conviction petitioners

       does not indicate bias.”), cert. denied.


       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 13 of 45
                            II. Motion for Finding of Reckless Mens Rea

[18]   During the post-conviction proceedings, Pond filed a “Motion for Finding of

       Reckless Mens Rea Due to State’s Concession in Brief of Appellee.” In the

       motion, Pond argued that, on direct appeal, the State described the shooting as

       a “reckless act” in its Appellee’s Brief and that the statement “constitutes a

       judicial admission which is conclusive on the State.” Appellant’s App. Vol. III

       p. 71. Pond requested that the post-conviction court “make a factual finding

       that Pond acted with a reckless mental state, and not a knowing or intentional

       mental state.” Id. In response to the motion, the post-conviction court found:


               Mr. Pond raised in the—raised three issues with the Court of
               Appeals, which the Court of Appeals consolidated into—or
               restated into two: one, issue of restitution, which this doesn’t
               reflect; and then the other being whether or not the Court—trial
               court—abused its discretion in sentencing. Um—the defendant’s
               conviction came following a plea of guilty. His mens rea was
               established in the—um—plea, and in his admission to the factual
               basis at that time. The—as I have read the—um—one page of
               the context portion of the—um — it would be the—uh—
               appellee’s brief, it is not discussing his mens rea, and it was not
               an issue on appeal so I don’t believe that it’s—um—a key point—
               uh—to address his culpability because that was already—it was
               not an issue on appeal, and was—um—had been decided at the
               trial court, but not raised at the appellate level. So I’m going to
               overrule and deny the defend—or the petitioner’s Motion for
               Finding of Reckless Mens Rea Due to Concession Brief of
               Appellee.


       Tr. Vol. II p. 62.




       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 14 of 45
[19]   On appeal, Pond contends that the State was bound by the “concession” found

       in its direct appeal Appellee’s Brief and that “Pond should have been relieved of

       the burden of proving he acted recklessly.” Appellant’s Brief p. 49. We begin

       by noting the purpose of post-conviction proceedings. Indiana Post-Conviction

       Rule 1(1)(a) provides:


               Any person who has been convicted of, or sentenced for, a crime
               by a court of this state, and who claims:


               (1) that the conviction or the sentence was in violation of the
               Constitution of the United States or the constitution or laws of
               this state;


               (2) that the court was without jurisdiction to impose sentence;


               (3) that the sentence exceeds the maximum authorized by law, or
               is otherwise erroneous;


               (4) that there exists evidence of material facts, not previously
               presented and heard, that requires vacation of the conviction or
               sentence in the interest of justice;


               (5) that his sentence has expired, his probation, parole or
               conditional release unlawfully revoked, or he is otherwise
               unlawfully held in custody or other restraint;


               (6) that the conviction or sentence is otherwise subject to
               collateral attack upon any ground of alleged error heretofore
               available under any common law, statutory or other writ,
               motion, petition, proceeding, or remedy;



       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 15 of 45
               may institute at any time a proceeding under this Rule to secure
               relief.


       It is unclear how Pond’s motion fits within any of these conditions, and Pond

       has not clarified this matter.


[20]   Moreover, even if we address this issue, Pond’s argument fails. “[A] clear and

       unequivocal admission of fact, or a formal stipulation that concedes any

       element of a claim or defense, is a binding judicial admission.” Bandini v.

       Bandini, 935 N.E.2d 253, 265 (Ind. Ct. App. 2010). “To constitute a judicial

       admission, the attorney must make ‘a clear admission of a material fact.’”

       Saylor v. State, 55 N.E.3d 354, 363 (Ind. Ct. App. 2016) (quoting 32 C.J.S.

       Evidence § 599 (2008)), trans. denied. “‘Improvident or erroneous statements or

       admissions’ resulting from ‘unguarded expressions or mistake or mere casual

       remarks, statements[,] or conversations’ are not judicial admissions.” Id.

       (quoting Collins v. State, 174 Ind. App. 116, 366 N.E.2d 229, 232 (1977)).

       “‘[B]efore a statement by an attorney can be held to be [a judicial] admission it

       must be given a meaning consistent with the context in which it is found.’” Id.

       (quoting 32 C.J.S., supra, § 599).


[21]   In addressing Pond’s direct appeal sentencing argument, the State described the

       nature of Pond’s offense and stated, “Pond did not take responsibility for his

       reckless act.” Appellant’s App. Vol. III p. 73. We do not consider this

       statement, which was made in the context of addressing a sentencing argument

       on direct appeal, to be a clear admission of material fact in the context of these

       post-conviction proceedings. The State was addressing Pond’s sentencing
       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 16 of 45
       argument after he pled guilty to voluntary manslaughter. Pond’s mens rea had

       already been conclusively established by his guilty plea. Pond’s mens rea was

       not, and could not have been, an issue in his direct appeal. The State’s

       statement was merely part of an argument addressing Pond’s sentence, not a

       concession that Pond should have been convicted of reckless homicide rather

       than voluntary manslaughter as provided in his guilty plea. See, e.g., Bandini,

       935 N.E.2d at 266 (holding that a statement of wife’s counsel was not an

       unequivocal admission but was part of an argument that husband was aware of

       the decree and his waiver of retirement pay post-dated the decree). The post-

       conviction court properly denied Pond’s motion.


                                         III. Exclusion of Evidence

[22]   Next, Pond argues that the post-conviction court erred by excluding certain

       evidence from the post-conviction hearing. Specifically, Pond argues that the

       following evidence should have been admitted: (1) the report and CV of Arthur

       Borchers, an expert in ballistics; (2) the testimony and CV of Stephen Neese, a

       crime scene reconstruction expert; (3) Pond’s DOC mental health records from

       after the sentencing hearing; and (4) the report and CV of Daniel McCoy, a

       toxicologist. “A petitioner is entitled to present evidence on his behalf during

       post-conviction proceedings.” Diaz v. State, 934 N.E.2d 1089, 1093 (Ind. 2010).

       Indiana Post-Conviction Rule 1(5) provides in relevant part that “[t]he court

       may receive affidavits, depositions, oral testimony, or other evidence . . . .”

       However, the petitioner “must comply with the established rules of procedure

       and evidence to assure both fairness and reliability in the ascertainment of guilt

       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 17 of 45
       and innocence.” Diaz, 934 N.E.2d at 1093. As the admission or exclusion of

       evidence is within the post-conviction court’s sound discretion, we defer to that

       court and will not disturb its ruling on review unless it has abused its discretion.

       Badelle v. State, 754 N.E.2d 510, 521 (Ind. Ct. App. 2001), trans. denied. Further,

       “[e]rrors in the admission or exclusion of evidence are to be disregarded as

       harmless error unless they affect the substantial rights of a party.” Barnhart v.

       State, 15 N.E.3d 138, 143 (Ind. Ct. App. 2014).


                    A. Ballistics and Crime Scene Reconstructionist Evidence

[23]   We first address the post-conviction court’s exclusion of Borchers’s report and

       CV and Neese’s testimony and CV. Borchers is a ballistics expert who

       analyzed “the probable trajectory of the bullet and the degree of bullet drop.”

       Appellant’s Br. p. 54. Neese is an accident reconstructionist who analyzed the

       lighting conditions and bullet trajectory. The State objected on the basis that

       the evidence was not relevant. Pond argued that the evidence was relevant to

       show that his trial counsel failed to perform an adequate investigation before

       advising him to plead guilty. According to Pond, the evidence was relevant to

       his mens rea and a determination of whether voluntary manslaughter or

       reckless homicide was the proper charge. The post-conviction court determined

       that the evidence was not relevant.


[24]   We conclude that, even if the post-conviction court should have admitted the

       evidence at the post-conviction hearing, any error is harmless. This evidence

       relates to Pond’s allegation of ineffective assistance of trial counsel for counsel’s

       alleged failure to conduct a proper investigation. According to Pond, his trial
       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 18 of 45
       counsel should have consulted a ballistics expert and a crime scene

       reconstruction expert before advising Pond regarding the guilty plea.


[25]   At the time of Pond’s offense, Indiana Code Section 35-42-1-3(a) provided: “A

       person who knowingly or intentionally . . . kills another human being . . . while

       acting under sudden heat commits voluntary manslaughter, a Class B felony.

       However, the offense is a Class A felony if it is committed by means of a deadly

       weapon.” “A person engages in conduct ‘knowingly’ if, when he engages in the

       conduct, he is aware of a high probability that he is doing so.” Ind. Code § 35-

       41-2-2(b). On the other hand, Indiana Code Section 35-42-1-5 provided: “A

       person who recklessly kills another human being commits reckless homicide, a

       Class C felony.” “A person engages in conduct ‘recklessly’ if he engages in the

       conduct in plain, conscious, and unjustifiable disregard of harm that might

       result and the disregard involves a substantial deviation from acceptable

       standards of conduct.” I.C. § 35-41-2-2(c).


[26]   Pond implies that the experts would have demonstrated that, based on the

       lighting and bullet drop data, Pond was not aiming at people when he shot his

       weapon. However, before Pond pled guilty, his trial counsel discussed the

       weaknesses of the State’s case with Pond, specifically focusing on the mens rea

       element. He made Pond aware that a more appropriate charge would have

       been reckless homicide. Despite his knowledge that mens rea was a significant

       issue in the case, Pond weighed his options and pled guilty to voluntary

       manslaughter in exchange for the dismissal of other charges. Pond’s trial

       counsel testified that he believed that he discussed with Pond the possibility of

       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 19 of 45
       needing a reconstructionist and a ballistics expert. At the time of the guilty

       plea, he had not moved forward with retaining such experts, but he had not

       ruled out retaining them either. When Pond pled guilty, the need for further

       investigation and hiring of experts was made unnecessary. We conclude, infra

       Issue IV(B), that trial counsel’s performance related to the ballistics expert and

       crime scene reconstruction expert was not deficient. Even if the post-conviction

       court had admitted the evidence, the evidence would not have made Pond’s

       claim of ineffective assistance of counsel successful. Pond has failed to

       demonstrate that any error in the post-conviction court’s exclusion of this

       evidence affected his substantial rights.


                                                B. Toxicologist

[27]   Next, Pond argues that the post-conviction court erred by excluding the CV and

       report of Daniel McCoy. McCoy is a toxicologist and analyzed Pond’s possible

       blood alcohol content based on whether he weighed 290 pounds or 350 pounds

       and whether he had three beers or 5.5 beers between 7:00 p.m. and 11:00 p.m.

       McCoy opined: “It is unlikely that Mr. Pond would have been intoxicated or

       impaired at the time he fired his rifle.” Exhibits Vol. VII p. 114 (Petitioner’s

       Exhibit 29 p. 2). Pond argues that this evidence was relevant because his

       substance abuse and drinking on the night of the offense was used as an

       aggravator during sentencing. Pond argues that his trial counsel should have

       investigated his intoxication level to present evidence during sentencing that he

       was not intoxicated.



       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 20 of 45
[28]   It is undisputed that Pond was drinking alcohol on the evening of the offense

       and that he had prior convictions that related to substance abuse. The trial

       court’s only mention of Pond’s substance abuse during the sentencing statement

       follows:


               The Court finds the criminal history of the Defendant shows
               what I would call an acceleration of violent or reckless behavior.
               There is a history of substance abuse laced throughout his
               criminal history and I think substance abuse played a factor into
               this night as well although he testified today that he was not
               intoxicated and I think his criminal history also and also the
               violations of probation show a continued disregard for the rule of
               law.


       Exhibits Vol. IV p. 57. There was varying evidence found during the

       investigation of the amount of alcohol consumed by Pond. McCoy’s report

       concerns Pond’s intoxication level at the time of the offense based on Pond’s

       claims of how much alcohol he consumed. However, his intoxication level

       simply was not found to be an aggravating circumstance. Rather, in the context

       of discussing Pond’s criminal history, the trial court noted that Pond had

       several substance abuse convictions and that substance abuse may have “played

       a factor” in the current offense too. Id. Pond has failed to demonstrate that the

       opinion of a toxicologist on his intoxication level was relevant to whether his

       trial counsel’s performance was effective.


[29]   Moreover, the post-conviction court found that evidence from a toxicologist

       would have been irrelevant and possibly harmful to Pond’s sentencing. First,

       the post-conviction court noted that, if Pond was proven to be sober, “it means

       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 21 of 45
       Pond’s actions on the date in question were completely unaffected by alcohol,

       and he was fully aware of what he was doing; almost becoming an aggravating

       factor.” Appellant’s App. Vol. IV p. 15. Further, the post-conviction court

       noted that the toxicologist’s findings were based on Pond’s testimony as to how

       much alcohol he consumed, which conflicted with other evidence presented.

       Pond has failed to demonstrate that any error in the post-conviction court’s

       exclusion of this evidence affected his substantial rights.


                                        C. Mental Health Records

[30]   Next, Pond argues that the post-conviction court erred by excluding his DOC

       mental health records. According to Pond, the records would have

       demonstrated that his trial counsel should have arranged a mental health

       evaluation prior to sentencing. Pond contends that he was later diagnosed with

       post-traumatic stress disorder and depression as a result of Jacob’s death. This

       evidence would tend to show Pond’s remorse. However, Pond presented

       several witnesses at the sentencing hearing who testified regarding his remorse,

       and Pond himself testified regarding his remorse. Any error in the exclusion of

       this evidence is harmless given the cumulative evidence of Pond’s remorse.


                              IV. Ineffective Assistance of Trial Counsel

[31]   Pond appeals the post-conviction court’s denial of his claim of ineffective

       assistance of trial counsel. To prevail on a claim of ineffective assistance of

       counsel, a petitioner must demonstrate both that his or her counsel’s

       performance was deficient and that the petitioner was prejudiced by the


       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 22 of 45
       deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000)

       (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064

       (1984)), cert. denied.


[32]   A counsel’s performance is deficient if it falls below an objective standard of

       reasonableness based on prevailing professional norms. French v. State, 778

       N.E.2d 816, 824 (Ind. 2002). A strong presumption arises that counsel

       rendered adequate assistance and made all significant decisions in the exercise

       of reasonable professional judgment. McCullough v. State, 973 N.E.2d 62, 74

       (Ind. Ct. App. 2012), trans. denied. “[A] defendant must offer strong and

       convincing evidence to overcome this presumption.” Id. Isolated poor strategy,

       inexperience, or bad tactics does not necessarily constitute ineffective

       assistance. Id.


[33]   In analyzing prejudice in the context of a guilty plea, we review such ineffective

       assistance of counsel claims under Segura v. State, 749 N.E.2d 496 (Ind. 2001).

       Segura created two categories of claims and enunciated different treatments of

       each respective category, depending upon whether the ineffective assistance

       allegation related to (1) an unutilized defense or failure to mitigate a penalty, or

       (2) an improper advisement of penal consequences. Willoughby v. State, 792

       N.E.2d 560, 563 (Ind. Ct. App. 2003) (citing Segura, 749 N.E.2d at 507), trans.

       denied.


[34]   Here, Pond claims that his trial counsel was ineffective by: (1) failing to advise

       Pond that the evidence supported a finding of reckless homicide, not voluntary


       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 23 of 45
       manslaughter; (2) failing to properly investigate and consult qualified experts;

       (3) failing to move for a change of judge; and (4) failing to investigate and

       consult with experts in the context of the sentencing hearing. Each of Pond’s

       arguments fall under the first category of unutilized defense or failure to

       mitigate a penalty. “A petitioner alleging ineffective assistance of counsel in

       overlooking a defense leading to a guilty plea must show a reasonable

       probability that, had the defense been raised, the petitioner would not have

       pleaded guilty and would have succeeded at trial.” Helton v. State, 907 N.E.2d

       1020, 1023 (Ind. 2009). We will address each of Pond’s arguments separately.


                               A. Failure to Advise Regarding Mens Rea

[35]   Pond first argues that his trial counsel was ineffective for failing to advise him

       that the evidence supported a finding of reckless homicide rather than voluntary

       manslaughter. According to Pond, “[t]he overwhelming weight of the evidence

       indicates Pond acted recklessly, not knowingly.” Appellant’s Br. p. 65. Pond

       contends that his trial counsel failed “to advise him that the evidence showed a

       reckless killing.” Id. at 66.


[36]   The post-conviction court rejected Pond’s argument and found, in part:


                   g. Here, the evidence indicates that while seated outside,
                      Pond observed a light coming from a neighboring
                      property. According to the witness, he became fixated on
                      the light and became frustrated with the light, and said
                      something about the light pissing him off because they
                      were being nosy. Pond said he would like that they not
                      shine the light in his direction. Ex. 22. P. 26-32 & Ex. 42,
                      p. 20-24. Pond then got up from the table, went into the

       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 24 of 45
                       house, and returned with a .22 rifle. He then fired the rifle
                       across the Michuda property, in the direction where the
                       light had been. He then fired a second shot. Pond then
                       says something to the effect of “that will teach them.” Ex.
                       22, p. 34-44, emphasis added.


                   h. Pond was experienced with firearms, and had purchased
                      the .22 rifle despite the prohibition placed on him by
                      reason of his domestic battery conviction. Pond had
                      sighted the rifle, and used it to shoot birds in his mother’s
                      backyard. Therefore, Pond was certainly aware the rifle
                      was a deadly weapon capable of causing severe injury or
                      death the moment he pulled the trigger.


                   i. Pond’s attorney discussed with him all possible scenarios;
                      specifically: going to trial on the murder and arguing for a
                      lesser included offense, pleading guilty without the benefit
                      of a plea, or pleading guilty in exchange that certain
                      offenses would be dismissed. Nordmann further discussed
                      the potential sentences Pond might receive if he were
                      convicted of murder, federal charges, and the other state
                      charges.


                   j. Pond failed to establish that his attorney’s performance
                      was deficient.


       Appellant’s App. Vol. IV pp 10-11.


[37]   Pond’s trial counsel testified during the post-conviction hearing that he advised

       Pond that “a more appropriate charge would be reckless homicide.” Tr. Vol. II

       p. 111. His trial counsel discussed with him the elements of the various

       offenses and focused on the mens rea elements. His trial counsel had a “very

       lengthy” discussion with Pond regarding the legal definition of “knowingly.”
       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 25 of 45
       Id. at 126. He discussed the strengths and weaknesses of the State’s case with

       Pond and the pros and cons of accepting the guilty plea offer. They discussed

       the strengths and weaknesses of each possible alternative during plea

       negotiations and potential consequences that Pond faced. We further note that,

       in exchange for the guilty plea, several other charges against Pond were

       dismissed or avoided. Ultimately, the decision to plead guilty to voluntary

       manslaughter was Pond’s decision. Pond has failed to demonstrate that his trial

       counsel’s performance on this issue was deficient. The post-conviction court’s

       finding is not clearly erroneous.


                                          B. Failure to Investigate

[38]   Next, Pond argues that his trial counsel was ineffective for failing to properly

       investigate and consult qualified experts. Specifically, Pond claims that his trial

       counsel should have consulted with a ballistics expert and a crime scene

       reconstructionist and investigated the crime scene. On this issue, the post-

       conviction court found:


                   a. Defense counsel provided an adequate investigation, and
                      considered retaining qualified experts prior to advising the
                      defendant to plead guilty.


                   b. Nordmann examined all of the evidence provided by the
                      State of Indiana, including the report of the Bureau of
                      Alcohol, Tobacco, and Firearms.


                   c. The manner of death and the identity of the shooter were
                      never disputed in this case.


       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 26 of 45
            d. Pond argues that an expert should have been consulted to
               help refute Pond acted with the appropriate mens rea
               when he shot the rifle. Pond’s lies to the investigators, his
               actions in hiding the gun, and his comments to the
               witnesses prior to the shooting and immediately after all
               suggest Pond was well aware of his actions and intended
               to shoot at or in the vicinity where he believed other
               person or persons to be.


            e. Pond also argues now that the ballistics investigation
               conducted by the Bureau of Alcohol, Tobacco, and
               Firearms was inaccurate.


            f. Again, the identity of the shooter or the cause of Jacob
               Michuda’s death was never disputed and Pond does not
               dispute it now.


            g. Pond’s ballistic expert retained for the PCR hearing
               testified that the shot fired by Pond would have gone
               across the rear of Michuda’s property between their home
               and pool, over a patio. The rear patio and pool area are
               visible to Pond, and he was aware of it making Pond’s
               actions even more egregious because this is an area people
               would likely be, especially during a weekend evening in
               July.


            h. Nordmann considered consulting an expert; however,
               Pond’s decision to enter a plea of guilty to voluntary
               manslaughter ended the need to pursue a ballistics expert.


            i. Pond is essentially requesting the Court retry the case and
               reweigh the evidence, which it will not do.




Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 27 of 45
                   j. Pond failed to establish his attorney’s investigation or
                      decision not to hire an expert witness was deficient.


       Appellant’s App. Vol. IV p. 12.


[39]   Pond’s trial counsel testified that he reviewed the State’s discovery, which

       included a report by the Bureau of Alcohol, Tobacco, Firearms and Explosives

       (“ATF”), attended depositions, interviewed Pond’s son and other witnesses,

       drove by the crime scene and Pond’s residence. Pond’s trial counsel testified

       that he believed that he discussed with Pond the possibility of needing a

       reconstructionist and a ballistics expert. At the time of the guilty plea, he had

       not moved forward with retaining such experts, but he had not ruled out

       retaining them either. Pond’s trial counsel specifically discussed with Pond that

       mens rea was the main issue in the case and made Pond aware of the various

       possible outcomes. Rather than move forward with a trial, Pond chose to plead

       guilty. Under such circumstances, we cannot say that Pond’s trial counsel’s

       performance was deficient. The post-conviction court’s findings on this issue

       are not clearly erroneous.


                                C. Failure to Move for Change of Judge

[40]   Next, Pond argues that his trial counsel was ineffective for failing to move for a

       change of judge. On this issue, the post-conviction court found:


                   a. Pond was not deprived of effective assistance of counsel
                      because his attorney did not request a change of judge.




       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 28 of 45
            b. Indiana “law presumes that a judge is unbiased and
               unprejudiced.” O’Conner v. State, 789 N.E.2d 504 (Ind. Ct.
               App. 2003), citing James v. State, 716 N.E.2d 935, 940 (Ind.
               1990). Further, the Indiana Code of Judicial Conduct
               requires judges to perform all duties for that office “fairly
               and impartially” and without “bias or prejudice.” Indiana
               Judicial Canon 2(A), Rule 2.2 & 2.3. A judge is required
               by the judicial code to disqualify himself from any
               proceeding in which his impartiality “might reasonably be
               questioned[.]” Id. The test for determining whether a
               judge should recuse himself or herself is “whether an
               objective person, knowledgeable of all the circumstances,
               would have a reasonable basis for doubting the judge’s
               impartiality.” O’Connor v. State, 789 N.E.2d 504, 511 (Ind.
               Ct. App. 2003), citing James, 716 N.E.2d at 940.


            c. Here, after the State of Indiana listed the victim’s paternal
               grandfather, Mark Michuda, on the State’s witness list, the
               Court had the following exchange with the attorneys on
               the record.


                         I am a member of the same church as Mr. Michuda
                         and know him, I’m not in a social relationship with
                         him, but I know who he is, we are members of the
                         same church. In addition, as is Mr. Michuda’s wife
                         is also a member there. In addition, I am in an
                         organization with Mr. Michuda that Mr. Michuda
                         is the President of. I was an officer of that
                         organization, but have resigned as an officer in that
                         organization. I don’t know that I have been
                         involved in or had any involvement in activities
                         since Mr. Michuda has been the President. I would
                         say my participation in the organization is probably
                         if ask him probably sporadic at best, but I do want
                         to make the parties aware of that relationship to one


Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 29 of 45
                         of the witnesses so that they are informed. Ex. 8,
                         pg. 44.


                The Court then further explained:


                         . . . like l said, I know Mr. Michuda, would know
                         him on sight, but I’ve not been social friends of Mr.
                         Michuda’s, simply attend the same church he
                         attends. Quite frankly I don’t know when, I go to
                         different times than he typically goes, so I see him
                         there occasionally, but l know is a regular attender
                         there, but I don’t see him all the time, we go at
                         different times. Ex. 8, pg. 45.


            d. Nordmann, Pond’s attorney, considered filing a motion
               for change of judge. Based upon his experience in
               practicing in Northeast Indiana, his experience practicing
               in front of Judge Kiracofe, and his experience practicing
               against Judge Kiracofe when he was a deputy prosecutor,
               he decided against filing a change of judge.


            e. Therefore, Nordmann considered the issue, considered his
               options, and made a calculated decision to not file a
               motion for change of judge.


            f. Pond has not shown that the actions of or the demeanor of
               the judge crossed the barrier of impartiality and prejudiced
               his case. “An adverse ruling alone is insufficient to show
               bias or prejudice.” O’Connor v. State, 789 N.E.2d 504, 511
               (Ind. Ct. App. 2003).


            g. Therefore, Pond was not denied effective assistance of
               counsel because his trial counsel did not request a change
               of judge.

Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 30 of 45
       Appellant’s App. Vol. IV pp. 12-14.


[41]   On appeal, Pond argues that his trial counsel should have requested that the

       trial judge recuse under Indiana Criminal Rule 12(B) because he had “a

       personal connection” to the victim’s grandparents, he had a “professional

       connection” to the prosecuting attorney, and he was involved in the prosecution

       of prior crimes against Pond as a deputy prosecutor. Appellant’s Br. p. 74.

       According to Pond, his trial counsel should have filed a motion for change of

       judge pursuant to Indiana Criminal Rule 12(B), which provides:


               In felony and misdemeanor cases, the state or defendant may
               request a change of judge for bias or prejudice. The party shall
               timely file an affidavit that the judge has a personal bias or
               prejudice against the state or defendant. The affidavit shall state
               the facts and the reasons for the belief that such bias or prejudice
               exists, and shall be accompanied by a certificate from the
               attorney of record that the attorney in good faith believes that the
               historical facts recited in the affidavit are true. The request shall
               be granted if the historical facts recited in the affidavit support a
               rational inference of bias or prejudice.


[42]   Pond’s trial counsel testified at the post-conviction hearing that he considered

       filing a motion for change of judge. However, he was familiar with the other

       judges in the area and ultimately decided that Judge Kiracofe “would be the

       best option.” Tr. Vol. II p. 107. The failure to file a motion for change of judge

       was a strategic decision that does not support a finding of deficient

       performance.




       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 31 of 45
[43]   Moreover, even if his trial counsel had filed the motion, it is unlikely that it

       would have been granted. We determined above, supra Issue I, that the trial

       judge’s relationship with the victim’s grandparents, prior representation of the

       State in prosecutions against Pond, and professional relationship with the

       prosecutors did not warrant a finding of personal bias or prejudice. The same

       analysis applies here. Consequently, the post-conviction court’s finding that

       Pond failed to demonstrate ineffective assistance of trial counsel on this issue is

       not clearly erroneous.


                                         D. Failure at Sentencing

[44]   Finally, Pond argues that his trial counsel was ineffective for failing to

       investigate and consult with experts in the context of the sentencing hearing.

       On this issue, the post-conviction court found:


                   a. Pond was not denied effective assistance of counsel at the
                      sentencing hearing.


                   b. Following the guilty plea hearing, the Wells County
                      Probation Department prepared a presentence
                      investigation report (PSI), filed the same with the Court,
                      and provided a copy to Pond’s trial counsel.


                   c. Nordmann advised Pond’s family and girlfriend to send in
                      as many letters of support as possible to the probation
                      department so they would include them in the presentence
                      investigation report.


                   d. At the sentencing hearing, Nordmann called two
                      witnesses: Barbara Pond and Lynne Klepper, as well as

       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 32 of 45
                Pond. Barbara Pond is Pond’s mother and Lynne Klepper
                is Pond’s girlfriend. In addition, seven letters were
                submitted to the probation department and were made a
                part of the presentence investigation report.


            e. Pond presented no evidence that Nordmann refused to
               obtain a letter from or call as a witness anyone he
               requested.


            f. Nordmann reviewed the presentence investigation report
               with Pond.


            g. Nordmann researched the potential aggravators and
               mitigators that might exist in the case, and attempted to
               tailor the mitigating factors as best to suit the facts.


            h. Pond now argues that at sentencing, Nordmann should
               have submitted letters from childhood friends of Pond,
               hired a toxicologist, hired a mental health professional to
               discuss Pond’s childhood physical abuse, and post-
               traumatic stress disorder (PTSD).


            i. “Sentencing lies within the discretion of the trial court.”
               Thacker v. State, 709 N.E.2d 3, 9 (Ind. 1999), reh’g denied.
               If a trial court uses aggravating or mitigating
               circumstances to enhance the presumptive sentence, it
               must (1) identify all significant mitigating and aggravating
               circumstances; (2) state the specific reason why each
               circumstance is determined . . . to be mitigating or
               aggravating; and (3) articulate the court’s evaluation and
               balancing of the circumstances. Id. The trial court is not
               required to find the presence of mitigating circumstances,
               Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993). When
               a defendant offers evidence of mitigators, the trial court
               has the discretion to determine whether the factors are

Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 33 of 45
                mitigating, and it is not required to explain why it does not
                find the proffered factors to be mitigating. Taylor v. State,
                681 N.E.2d 1105, 1112 (Ind. 1997). The trial court’s
                assessment of the proper weight of mitigating and
                aggravating circumstances and the appropriateness of the
                sentence as a whole are entitled to great deference and will
                be set aside only upon a showing of a manifest abuse of
                discretion. Thacker, 709 N.E.2d at 10. McCarty v. State,
                802 N.E.2d 959, 966-67 (Ind. Ct. App. 2004).


            j. Seven letters were submitted to the Court through the
               presentence investigation report regarding Pond’s
               character. Pond now argues additional witnesses could
               have been called or statements procured regarding Pond’s
               good character. As outlined in the presentencing
               investigation report, Pond had two convictions for battery,
               one conviction for domestic battery and invasion of
               privacy, has a history of substance abuse, he was
               consuming alcohol while on probation, possessed a
               firearm in violation of federal and state law and in
               violation of his probation conditions. His mother testified
               he applied for and received food stamps while Pond stated
               in the PSI that he earned $20 per hour restoring vehicles.
               These factors do not reflect well on his character despite
               how many people might say he is of good character.


            k. The Court is unclear how proving Pond’s intoxication or
               sobriety at the time of the shooting would have changed
               the Court’s decision on sentencing. Under Indiana law,
               intoxication is not a defense so it would not have been a
               mitigating factor. If he was proven to be sober by utilizing
               a toxicologist, it means Pond’s actions on the date in
               question were completely unaffected by alcohol, and he
               was fully aware of what he was doing; almost becoming an
               aggravating factor.


Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 34 of 45
            l. Further, because only Pond knows exactly how much
               alcohol he consumed on the date in question, the
               toxicologist’s findings would have been made on Pond’s
               testimony. Based upon the various statements from the
               witnesses, it is possible the Court would have disbelieved
               Pond’s statement concerning his consumption of alcohol.


            m. Nordmann’s decision to not hire a toxicologist or failure to
               consider hiring a toxicologist is completely irrelevant.


            n. Pond also argues that Nordmann should have obtained a
               mental health examination and then he could have
               presented to the Court the examination results to show
               Pond suffered PTSD and was remorseful.


            o. Pond testified about his remorse at the sentencing hearing
               stating, “I would give my life in a second to bring that little
               boy back, but I can’t do that. I will live with that every
               day of my life from now on . . . I am so so so sorry for
               bringing everybody so much grief, the Michudas for all
               their heartache, and my family for the embarrassment.”
               Ex. 1B, pg. 32. The Indiana Supreme Court has held that
               a trial court’s determination of a defendant’s remorse is
               similar to a determination of credibility. As such, without
               evidence of some impermissible consideration by the trial
               court, a review court will accept its determination as to
               remorse. Stout v. State, 834 N.E.2d 707 (Ind. Ct. App.
               2005) citing Pickens v. State, 767 N.E.2d 530 (Ind. 2002).


            p. Essentially, calling a mental health provider to testify
               regarding Pond’s remorsefulness would be akin to calling a
               witness to say the defendant is credible.


            q. The Indiana Court of Appeals found in Scott v. State that
               the sincerity of a defendant’s remorse was entitled to slight

Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 35 of 45
                weight in light of the “unprovoked shooting of a randomly
                selected victim.” Scott v. State, 840 N.E.2d 376 (Ind. Ct.
                App. 2006). Here, even if an expert had been called to
                testify regarding Pond’s remorse, the Court could have
                given it slight weight given the unprovoked and random
                act that killed a child.


            r. The Court is convinced Pond is remorseful. His actions
               resulted in the death of a four-year-old child and,
               consequently, will result in him spending forty (40) years
               in prison.


            s. Pond also testified concerning childhood abuse he received
               from his father. The prosecutor asked him why it was
               relevant as a mitigating factor. Pond replied he didn’t
               know. The Court also fails to find why this is a mitigating
               factor.


            t. “[A] court need not determine whether counsel’s
               performance was deficient before examining the prejudice
               suffered by the defendant as a result of the alleged
               deficiencies.” Games[ v. State], 684 N.E.2d [466, ]468
               [(Ind. 1997)] (quoting Strickland v. Washington, 466 U.S.
               668, 697, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), reh’g
               denied 467 US. 1267, 82 L. Ed. 2d 864, 104 S. Ct. 3562
               (1984)). If it is easier to dispose of an ineffectiveness claim
               on the ground of lack of sufficient prejudice, that course
               should be followed. Id.


            u. Pond has failed to prove that there is a reasonable
               probability that the result of the sentencing hearing would
               have been different had Nordmann called additional
               character witnesses, submitted more letters of support,
               called a toxicologist, and obtained an evaluation from a
               mental health examination.

Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 36 of 45
                   v. Therefore, the Court finds that Pond was not denied
                      effective assistance of counsel at the sentencing hearing.


       Appellant’s App. Vol. IV pp. 14-16.


[45]   On appeal, Pond argues that his trial counsel was ineffective for failing to

       investigate and present mitigators, failing to have Pond evaluated by a mental

       health professional, and failing to consult with a toxicologist. We will address

       each argument separately.


                                                 1. Mitigators

[46]   Pond argues that his trial counsel should have performed a better investigation

       into proposed mitigators, asked more individuals to write letters or testify at

       sentencing, and better prepared Pond’s mother and girlfriend to testify.

       According to Pond, a better investigation would have revealed that Pond was

       experiencing considerable mental distress, had positive character traits and

       remorse, and suffered childhood abuse from his father.


[47]   At the sentencing hearing, Pond’s trial counsel presented seven letters of

       support for Pond and his mother and girlfriend testified in support of him.

       Pond testified regarding his remorse and childhood abuse by his father. There

       is no evidence that additional evidence in support of these arguments would

       have resulted in a shorter sentence. The post-conviction court found that Pond

       had failed to demonstrate a reasonable probability that the result of the

       sentencing hearing would have been different if his trial counsel had presented

       additional evidence, and we agree. Pond’s argument fails.

       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 37 of 45
                                      2. Mental Health Professional

[48]   Next, Pond argues that his trial counsel should have presented evidence from a

       mental health professional to show that he suffered from PTSD and depression

       as a result of the offense. According to Pond, this evidence “would have shown

       his remorse and corroborated the testimony that he would never deliberately

       harm a child.” Appellant’s Br. p. 79. Again, Pond’s trial counsel presented

       evidence of Pond’s remorse. Pond testified:


               I would give my life in a second to bring that little boy back, but I
               can’t do that. I will live with that every day of my life from now
               on and the holidays stunk so bad not because I was in jail but
               because of the family, that little guy they didn’t have him around
               at Christmas. . . . I am so so so sorry for bringing everybody so
               much grief, the Michudas for all their heartache, and my family
               for the embarrassment.


       Ex. Vol. IV p. 174. The proposed evidence was cumulative of other evidence

       presented of Pond’s remorse. The post-conviction court found no evidence of a

       reasonable probability that the result of the sentencing hearing would have been

       different if Pond’s trial counsel had presented evidence of a mental health

       examination, and we agree. The post-conviction court’s finding on this issue is

       not clearly erroneous.


                                                3. Toxicologist

[49]   Finally, Pond argues that his trial counsel was ineffective for failing to present

       evidence from a toxicologist at the sentencing hearing. He argues that the

       toxicologist would have demonstrated that Pond was not intoxicated at the time

       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 38 of 45
       of the offense. We conclude that Pond was not prejudiced by his trial counsel’s

       failure to present such evidence.


[50]   Pond claims that his substance abuse and alcohol consumption on the night of

       the offense were used as an aggravating factor. As noted when discussing the

       admission of the toxicologist’s report, Pond’s intoxication level simply was not

       found to be an aggravating factor. Rather, in the context of discussing Pond’s

       criminal history, the trial court noted that Pond had several substance abuse

       convictions and that substance abuse may have “played a factor” in the current

       offense too. Exhibits Vol. IV p. 57. The post-conviction court correctly found

       that evidence from a toxicologist would have been irrelevant and possibly

       harmful to Pond’s sentencing. The post-conviction court noted that, if Pond

       was proven to be sober, “it means Pond’s actions on the date in question were

       completely unaffected by alcohol, and he was fully aware of what he was doing;

       almost becoming an aggravating factor.” Appellant’s App. Vol. IV p. 15.

       Further, the post-conviction court noted that the toxicologist’s findings were

       based on Pond’s testimony as to how much alcohol he consumed, which

       conflicted with other evidence in the case. Consequently, the post-conviction

       court concluded that Pond failed to prove a reasonable probability that the

       result of the sentencing hearing would have been different if Pond’s trial

       counsel had presented evidence from a toxicologist. We cannot say that the

       post-conviction court’s finding is clearly erroneous.




       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 39 of 45
                            V. Ineffective Assistance of Appellate Counsel

[51]   Pond next argues that his appellate counsel was ineffective. Claims of

       ineffective assistance of appellate counsel are reviewed using the same standard

       applicable to claims of trial counsel ineffectiveness. Bieghler v. State, 690 N.E.2d

       188, 193 (Ind. 1997), cert. denied. These claims generally fall into three

       categories: (1) denying access to the appeal, (2) waiver of issues, and (3) failure

       to present issues well. Pond argues that his appellate counsel was ineffective

       because: (1) there were “substantial deficiencies in the Appellant’s Appendix

       and record;” (2) there were grammatical errors in the Appellant’s Brief; (3)

       Pond’s character, letters written on his behalf, a lack of disciplinary issues in the

       jail, and his childhood abuse were not mentioned in the Appellant’s Brief; (4)

       the Appellant’s Brief did not mention the suggested statutory mitigators found

       by the probation department; (5) the statement of the facts did not contain

       citations to the record; and (6) appellate counsel failed to provide a separate

       analysis of abuse of discretion and inappropriate sentence, resulting in waiver of

       the inappropriate sentence issue. According to Pond, if the appropriateness

       issue had been considered, there is a reasonable probability that this court

       would have reduced his sentence.


[52]   On this issue, the post-conviction court found:


                   a. The Court finds that Pond’s arguments on these issues fail.


                   b. Following the sentencing hearing, Pond sought an appeal
                      of the Court’s sentencing decision.


       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 40 of 45
            c. Pond chose to be represented by Benjamin Nordmann.


            d. The Indiana Court of Appeals issued a Memorandum
               Decision on September 19, 2012, which found the trial
               court had not abused its discretion, and affirmed the trial
               court’s decision on Pond’s sentence.


                                                 *****


            g. Because Pond’s appeal followed a guilty plea, the only
               issue before the Court were issues related to sentencing.


            h. Here, Pond argues Nordmann’s appellate representation
               was inadequate for several reasons, including that the
               Appellant’s Appendix did not include the charging
               informations, the probable cause affidavit, the notice of
               appeal, or any pleadings or orders that were filed or issued
               prior to December 16, 2011. He also argues it is deficient
               because it contains “quite a few typographical errors,
               capitalization errors, and grammatical errors.” Pond’s
               proposed findings of fact, paragraph 276.


            i. Pond’s claim of alleged appellate counsel ineffectiveness
               appears to fall into the third category: inadequate
               presentation as highlighted in the Bieghler decision.


            j. In Bieghler, the Indiana Supreme Court found that claims
               of inadequate presentation are the most difficult to
               advance and reviewing tribunals to support. The Supreme
               Court found this to be true for two reasons:


                         First, these claims essentially require the reviewing
                         tribunal to review specific issues it has already
                         adjudicated to determine whether the new record

Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 41 of 45
                                citations, case references, or arguments would have
                                had any marginal effect on its previous decision.
                                Thus, this kind of ineffectiveness claim, as
                                compared to the others mentioned, most implicates
                                concerns of finality, judicial economy, and repose
                                while least affecting assurance of a valid conviction.
                                Second, an Indiana appellate court is not limited in
                                its review of issues to the facts and cases cited and
                                arguments made by the appellant’s counsel. We
                                commonly review relevant portions of the record,
                                perform separate legal research, and often decide
                                cases based on legal arguments and reasoning not
                                advanced by either party. While impressive
                                appellate advocacy can influence the decisions
                                appellate judges make and does make our task
                                easier, a less than top notch performance does not
                                necessarily prevent us from appreciating the full
                                measure of an appellant’s claim. Bieghler v. State,
                                690 N.E.2d 188, 195 (Ind. 1997).


                   k. Here, Pond has failed to demonstrate that Nordmann’s
                      performance on the appeal was deficient. Further,
                      assuming arguendo the performance was deficient, Pond
                      has failed to demonstrate that he was prejudiced by the
                      deficient performance.


       Appellant’s App. Vol. IV pp. 16-18.


[53]   Even if we assume that appellate counsel’s performance was deficient, we

       cannot say that Pond was prejudiced by the alleged deficiencies. Pond’s

       arguments appear to be in the category of “failure to present issues well.”

       Bieghler, 690 N.E.2d at 195. To the extent that Pond’s appellate counsel failed

       to present the abuse of discretion argument well, “an ineffectiveness challenge

       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 42 of 45
       resting on counsel’s presentation of a claim must overcome the strongest

       presumption of adequate assistance.” Id. at 196. “Judicial scrutiny of counsel’s

       performance, already ‘highly deferential,’ Spranger v. State, 650 N.E.2d 1117,

       1121 (Ind. 1995), is properly at its highest.” Id. “Relief is only appropriate

       when the appellate court is confident it would have ruled differently.” Id. Pond

       has made no showing that the alleged deficiencies in the Appellant’s Brief,

       Appellant’s Appendix, or record impacted his appeal in any way or that,

       without those deficiencies, his appeal would have been successful.


[54]   The main thrust of his argument seems to be that an argument that his sentence

       was inappropriate under Indiana Appellate Rule 7(B) would have been

       successful. Although appellate counsel mentioned Appellate Rule 7(B), he

       waived the issue by failing to make a separate argument regarding the issue. See

       Pond, No. 90A05-1202-CR-73, slip op. at 9 n.1. However, even if Pond’s

       appellate counsel had properly raised the Appellate Rule 7(B) issue, the

       argument is unlikely to have been successful.


[55]   Appellate Rule 7(B) provides that we may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, we find that the

       sentence is inappropriate in light of the nature of the offenses and the character

       of the offender. When considering whether a sentence is inappropriate, we

       need not be “extremely” deferential to a trial court’s sentencing decision.

       Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Still, we must

       give due consideration to that decision. Id. We also understand and recognize

       the unique perspective a trial court brings to its sentencing decisions. Id. Under

       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 43 of 45
       this rule, the burden is on the defendant to persuade the appellate court that his

       or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006).


[56]   The principal role of Rule 7(B) review “should be to attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived

       ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). We “should focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. When reviewing the appropriateness of

       a sentence under Rule 7(B), we may consider all aspects of the penal

       consequences imposed by the trial court in sentencing the defendant, including

       whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010).


[57]   The nature of Pond’s offense is that he was annoyed by a moving light on a

       neighbor’s property, retrieved his gun, fired two shots, and said, “That will

       teach them.” PSI p. 23. Four-year-old Jacob was shot in the forehead, and he

       died a few hours later. Pond had his son hide the firearm and initially denied

       any involvement in the shooting. Pond admitted his involvement only after his

       son and other visitor during the incident came forward.


[58]   As for Pond’s character, he has multiple prior convictions, including for

       domestic battery, battery, invasion of privacy, and operating while intoxicated.


       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 44 of 45
       His probation has been revoked twice, and he was on probation at the time of

       this offense. He expressed remorse for shooting Jacob and pled guilty.

       Testimony and letters were presented at the sentencing hearing regarding

       Pond’s good character.


[59]   Even if Pond’s appellate counsel had properly presented the Appellate Rule

       7(B) issue, we cannot say that Pond’s sentence would have been found

       inappropriate. Given the nature of the offense and Pond’s criminal history, the

       likelihood of Pond’s forty-year sentence being reduced on direct appeal was

       slight. Pond has failed to demonstrate that, but for his appellate counsel’s

       alleged deficiencies, his sentence would have been reduced. The post-

       conviction court’s findings denying Pond’s ineffective assistance of appellate

       counsel claim are not clearly erroneous.


                                                Conclusion
[60]   The post-conviction court properly denied Pond’s petition for post-conviction

       relief. We affirm.


[61]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018   Page 45 of 45
