      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                       Jul 08 2015, 9:12 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      Kyle Beals                                                Gregory F. Zoeller
      Pendleton, Indiana                                        Attorney General of Indiana
                                                                James B. Martin
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Kyle Beals,                                               July 8, 2015

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                49A02-1411-PC-776
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,
                                                                The Honorable Grant W. Hawkins,
      Appellee-Respondent.                                      Judge
                                                                Trial Court Case No.
                                                                49G05-0812-PC-292518




      Mathias, Judge.

[1]   Kyle Beals appeals from the Marion Superior Court’s denial of his petition for

      post-conviction relief. On appeal, Beals presents five issues for our review,

      which we restate as:




      Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015   Page 1 of 26
      I.      Whether the post-conviction court erred in concluding that Beals was not
              denied the effective assistance of trial counsel;

      II.     Whether the post-conviction court erred in concluding that Beals was not
              denied the effective assistance of appellate counsel;

      III.    Whether the trial court abused its discretion when it failed to issue a
              directed verdict sua sponte in Beals’ favor;

      IV.     Whether the post-conviction court erred by failing to order that the voir
              dire from Beals’ trial be transcribed and provided to him for purposes of
              pursuing his post-conviction petition; and

      V.      Whether a retrial on Beals’ habitual offender adjudication is prohibited
              by the constitutional prohibitions against double jeopardy.

[2]   We affirm.


                                     Facts and Procedural History

[3]   The facts regarding Beals’ convictions were set forth in our memorandum

      decision on direct appeal as follows:


[4]           Coming home from work shortly before 1:00 a.m. on December
              23, 2008, Pamela Murphy stopped at the 7-11 store for cigarettes.
              As she chatted with cashier Delores Booth, Beals entered the
              store wearing a black ski-mask, a tan-colored Carhartt-style
              jacket, blue jeans and white tennis shoes. Beals pulled out a
              black gun, pressed it to her back, pushed her against the counter,
              and demanded that Booth “open the register or he was going to
              kill” them both. Booth pulled out the register drawer and put it
              on the counter. Beals took the money from the drawer and
              ordered both women to the floor. They complied, and Beals left
              the store.
[5]           Booth had activated a silent alarm as she dropped to the floor,
              and after Beals left, she also called 9-1-1. Officer Robert Hicks
              responded to the 12:56 a.m. dispatch and arrived within three
              minutes. After receiving reports from the women, Hicks



      Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015   Page 2 of 26
              broadcast the robber’s description—a white male, approximately
              6'3" and 250 pounds, wearing a ski mask, Carhartt-style jacket,
              and blue jeans. Subsequently, Detective Delbert Shelton arrived
              at the 7-11 to investigate the armed robbery.
[6]           At approximately 2:30 a.m. on the same morning, Leandro
              Goodman and Roger Terry were working at the Airport
              Marathon station/store. Beals entered wearing a black ski mask,
              tan Carhartt-style jacket, blue jeans, and white tennis shoes.
              Beals displayed a black gun and ordered both men to get on the
              floor; when he was unable to open the cash register, he ordered
              Goodman to get up and open it. Goodman opened the drawer,
              and Beals “snatched the money out the drawer [sic] and ran out
              the doorway.”
[7]           Meanwhile, after finishing their shifts at a business several blocks
              away, Aaron Butler and Aaron Grose went to their vehicles and
              found that the locks on Grose’s truck had frozen. Butler drove
              Grose to the Marathon for de-icer. As the two men approached
              the door, Beals exited—wearing a Carhartt-style jacket, blue
              jeans, and black ski mask, with a gun in his right hand and
              “money coming out of” his left jacket pocket. Once inside the
              Marathon, they confirmed that it had just been robbed.
[8]           Goodman had telephoned the police to report the robbery after
              Beals left the store. Dispatch reported the robbery. Officer Doug
              Himmel was at a nearby intersection when he heard the dispatch,
              and saw a blue Explorer driven by a man in a Carhartt-style
              jacket—Beals. The driver of another vehicle pointed at the
              Explorer, and Himmel followed it.
[9]           Other officers were alerted to Beals’ location, and they
              participated in an attempted traffic stop. Beals disregarded the
              officers’ flashing lights and fled. Eventually, Beals turned into a
              semi-truck parking lot. He crashed over a curb, drove around the
              lot in circles, and then plowed through a fence before his vehicle
              came to a stop. Beals then fled on foot, with several officers in
              pursuit—“everybody . . . yelling stop police.” Himmel tackled




      Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015   Page 3 of 26
               Beals but had difficulty controlling him. Himmel finally brought
               Beals to the ground and was able to subdue him.
[10]           Beals was wearing a tan Carhartt-style jacket, blue jeans, and
               white tennis shoes. In his jacket pocket was $350.00, “crammed”
               in a “pile of money that was completely wadded up.” Further,
               inside the crashed Explorer were additional bills, as well as a
               black ski mask, and a black BB gun was found on the pavement
               of the semi-truck parking lot that Beals had circled.
[11]           From the Marathon store, various officers had individually
               transported Grose, Butler, Goodman, and Terry to the scene
               where Beals had been stopped. Grose testified that when he
               arrived at the scene, he saw Beals “standing” there “wearing the
               same exact stuff,” including the Carhartt-style jacket, and
               recognized him as the “person that [he] walked past in the gas
               station.” Butler testified that he identified Beals based on his
               physical stature and “[t]he clothes he was wearing,” which “was
               a match to the gentleman that walked out of the gas station.”
               Goodman testified that he recognized Beal[s] as “[t]he guy that
               robbed me” based on his wearing “the same tan jacket and
               jeans,” and having “the same build and height.” Terry testified
               that based on “the size of the man and the build,” he recognized
               Beal[s] as “the man that just robbed us.”
[12]           Meanwhile, at the 7-11, Officer Shelton had heard the broadcast
               description of the Marathon armed robber and noted the
               similarity to the reports of the 7-11 robbery. Shelton went to
               where Beals had been apprehended, and observed Beals’
               Carhartt-style jacket, blue jeans, and white tennis shoes, as well
               as his stature and race. Subsequently, Shelton compiled a photo
               array that included Beals.
[13]           On December 24, 2008, the State charged Beals. With respect to
               the 7-11 incident, it charged him with one count of robbery and
               two counts of criminal confinement (one as to Murphy, one as to
               Booth), all as class B felonies. With respect to the Marathon
               incident, it charged him with one count of robbery and two
               counts of criminal confinement (one as to Goodman, one as to



       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015   Page 4 of 26
               Terry), all as Class B felonies. It also charged Beals with one
               count of resisting law enforcement, as a class D felony.
[14]           On January 2, 2009, Officer Shelton showed Booth the photo
               array. Booth unequivocally identified Beals as the man who had
               robbed her at gunpoint on December 23rd, signing and dating it
               for that purpose.
[15]           On February 19, 2009, the State filed notice that it would seek to
               have Beals adjudicated as an habitual offender. On November
               29, 2009, Beals filed a motion to suppress identification evidence.
               On February 5, 2010, the parties submitted a stipulation of facts
               and evidence regarding Beals’ motion. On February 22, 2010, the
               trial court denied Beals’ motion to suppress. Beals did not appeal
               that ruling.
[16]           A jury trial was held March 1 – 2, 2010, and testimony to the
               above was heard. The jury also saw videotaped recordings of
               both robberies. At no time during the trial did Beals object to any
               identification testimony. The jury found Beals guilty as charged,
               and the trial court found him to be an habitual offender.
[17]           On April 1, 2010, the trial court held the sentencing hearing. It
               sentenced Beals to twelve years on each count for the six class B
               felony convictions, with the three counts for the 7-11 offenses to
               be served concurrently, and the three counts for the Marathon
               station offenses to be served concurrently; however, it ordered
               the two robbery counts to be served consecutive to one another.
               For the class D felony resisting law enforcement offense, it
               sentenced Beals to a term of two years—consecutive to the
               robbery sentences. In addition, the trial court enhanced the first
               robbery sentence by twenty years for his being an habitual
               offender, for a total executed sentence of forty-six years.

       Beals v. State, No. 49A02-1004-CR-461, 2011 WL 9122, slip op. at 2-6 (Ind. Ct.

       App. Jan. 3, 2011), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015   Page 5 of 26
[18]   On direct appeal, Beals presented two issues: (1) whether the trial court abused

       its discretion in admitting into evidence the pre-trial identifications of Beals,

       and (2) whether Beals’ convictions for robbery and criminal confinement

       violated the double jeopardy provisions of the Indiana Constitution. A panel of

       this court rejected the first claim but agreed with Beals that his convictions for

       robbery and criminal confinement constituted double jeopardy under the

       Indiana Constitution. Id. at 9-10, 14. Accordingly, we reversed his convictions

       for criminal confinement and remanded with instructions that the judgments

       thereon be vacated. Id. at 14.


[19]   On December 11, 2012, Beals filed a pro se petition for post-conviction relief and

       declined to be represented by counsel. At the October 9, 2014, hearing held on

       Beals’ petition, he called as witnesses his trial and appellate counsel. The trial

       court granted Beals’ petition in part, vacating Beals’ guilty plea to the habitual

       offender adjudication. However, the trial court denied the petition otherwise,

       and Beals now appeals.

                                Post-Conviction Standard of Review

[20]   Post-conviction proceedings are not “super appeals” through which convicted

       persons can raise issues they failed to raise at trial or on direct appeal. McCary v.

       State, 761 N.E.2d 389, 391 (Ind. 2002). Post-conviction proceedings instead

       afford petitioners a limited opportunity to raise issues that were unavailable or

       unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443

       (Ind. 2002). The post-conviction petitioner bears the burden of establishing

       grounds for relief by a preponderance of the evidence. Henley v. State, 881


       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015   Page 6 of 26
       N.E.2d 639, 643 (Ind. 2008). Thus, on appeal from the denial of post-conviction

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

       judgment. Id. To prevail on appeal from the denial of post-conviction relief, the

       petitioner must show that the evidence as a whole leads unerringly and

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

       court. Id. at 643-44.


[21]   Where, as here, the post-conviction court makes findings of fact and

       conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we

       must determine if the court’s findings are sufficient to support its judgment.

       Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947

       N.E.2d 962. Although we do not defer to the post-conviction court’s legal

       conclusions, we review the post-conviction court’s factual findings under a

       clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence or

       judge the credibility of witnesses, and we will consider only the probative

       evidence and reasonable inferences flowing therefrom that support the post-

       conviction court’s decision. Id.


                             I. Ineffective Assistance of Trial Counsel

[22]   Beals first claims that his trial counsel was ineffective for a variety of reasons.

       Our supreme court has summarized the law regarding claims of ineffective

       assistance of trial counsel as follows:

               A defendant claiming a violation of the right to effective
               assistance of counsel must establish the two components set forth
               in Strickland v. Washington, 466 U.S. 668 (1984). First, the


       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015   Page 7 of 26
               defendant must show that counsel’s performance was deficient.
               This requires a showing that counsel’s representation fell below
               an objective standard of reasonableness, and that the errors were
               so serious that they resulted in a denial of the right to counsel
               guaranteed the defendant by the Sixth Amendment. Second, the
               defendant must show that the deficient performance prejudiced
               the defense. To establish prejudice, a defendant must show that
               there is a reasonable probability that, but for counsel’s
               unprofessional errors, the result of the proceeding would have
               been different. A reasonable probability is a probability sufficient
               to undermine confidence in the outcome.
               Counsel is afforded considerable discretion in choosing strategy
               and tactics, and we will accord those decisions deference. A
               strong presumption arises that counsel rendered adequate
               assistance and made all significant decisions in the exercise of
               reasonable professional judgment. The Strickland Court
               recognized that even the finest, most experienced criminal
               defense attorneys may not agree on the ideal strategy or the most
               effective way to represent a client. Isolated mistakes, poor
               strategy, inexperience, and instances of bad judgment do not
               necessarily render representation ineffective. The two prongs of
               the Strickland test are separate and independent inquiries. Thus,
               [i]f it is easier to dispose of an ineffectiveness claim on the
               ground of lack of sufficient prejudice . . . that course should be
               followed.

       Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations

       omitted).


       A. Admission of BB Gun

[23]   Beals first claims that his trial counsel was ineffective for failing to object to the

       admission of the BB gun found in the parking lot near where Beals was




       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015   Page 8 of 26
       ultimately apprehended. Beals argues that the State did not adequately lay the

       foundation for the admission of the gun.


[24]   To lay a foundation for the admission of evidence, the proponent of the

       evidence must show that it has been authenticated. Pavlovich v. State, 6 N.E.3d

       969, 976 (Ind. Ct. App. 2014), trans. denied. Under Indiana Evidence Rule

       901(a),1 authentication of evidence is “satisfied by evidence sufficient to support

       a finding that the matter in question is what its proponent claims.” Absolute

       proof of authenticity is not required, and the proponent of the evidence needs to

       establish only a reasonable probability that the exhibit is what it is claimed. Id.

       Once this reasonable probability is shown, any inconclusiveness regarding the

       exhibit’s connection with the events at issue goes to the exhibit's weight, not its

       admissibility. Id.


[25]   Beals claims that none of the witnesses were shown the BB gun prior to its

       admission and that, therefore, the admission of the gun had no foundation. We

       disagree. When the BB gun was admitted into evidence, it was simply identified

       as the gun found in the parking lot where Beals had crashed his vehicle. The

       evidence technician who photographed and collected the weapon identified the

       gun as being the same one he found in the lot. Accordingly, the State properly

       laid a foundation for the admission of the BB gun.




       1
         The Indiana Rules of Evidence were amended effective January 1, 2014, but the amendments did not alter
       the substance of Evidence Rule 901. See Pavlovich, 6 N.E.3d at 979 n.4. Still, we refer to the version of
       Evidence Rule 901 in effect at the time of Beals’ trial. See id.



       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015        Page 9 of 26
[26]   Beals argues that none of the eyewitnesses to the robberies identified the BB

       gun as being the one used during the robberies. This, however, goes to the

       evidentiary weight of the BB gun, not its admissibility. The jury was presented

       with evidence that a man matching Beals’ description had robbed two

       convenience stores with a black weapon that appeared to be a semi-automatic

       handgun. Beals was apprehended after a police chase that ended when he

       crashed his vehicle in a parking lot and fled on foot. A black BB gun designed

       to look like a semi-automatic handgun was found in the lot where Beals crashed

       his vehicle. The jury could reasonably conclude that the BB gun found in the lot

       was one and the same as the one used in the robberies.


[27]   Moreover, even if we assume arguendo that Beals’ trial counsel’s failure to object

       to the admission of the BB gun fell below an objectionable standard of

       reasonableness, Beals would still not prevail on his claim of ineffective

       assistance because he has failed to demonstrate adequate prejudice. As we

       noted in our decision on Beals’ direct appeal:

               [T]he jury viewed videotape recordings of both robberies, with
               the robber clearly wearing the Carhartt-style jacket, blue jeans,
               white tennis shoes, and a ski mask; his large stature is apparent.
               From their initial reports to police immediately after the
               robberies through their testimony at trial, all witnesses described
               the robber as a tall white male, garbed in a Carhartt-style jacket,
               blue jeans, and a black ski mask. Seen driving a vehicle “less than
               500 feet from” the Marathon store, and clad in a Carhartt-style
               jacket, Beals was followed by Officer Himmel. Beals disregarded
               orders to stop, and was then pursued by Himmel and numerous
               other officers until he crashed his vehicle and fled on foot. When
               finally caught and subdued, Beals was wearing a Carhartt-style

       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015   Page 10 of 26
               jacket, blue jeans—which jeans, admitted as an exhibit at trial,
               were the same blue color as the jeans shown in the videotape
               recordings of the robberies, and white tennis shoes; his jacket
               pocket was crammed with $350.00 in loose bills; more bills were
               found lying in his crashed vehicle; a black ski mask was also in
               the vehicle; and a black BB gun was found in the lot where he
               had crashed the vehicle.

       Beals, slip op. at 9-10. Thus, even if the BB gun had been excluded, ample

       evidence still existed to support Beals’ convictions. Several witnesses testified

       that the robber used what appeared to be a black, semi-automatic handgun.

       Accordingly, we conclude that Beals did not establish that, but for his trial

       counsel’s failure to object to the admission of the BB gun, the result of his trial

       would have been different.


       B. Failure to Strike a Juror

[28]   Beals next claims that his trial counsel was ineffective for failing to strike a

       particular juror, T.L., during voir dire. At the post-conviction hearing, Beals

       claimed that T.L. stated during voir dire that his wife had been the victim of a

       robbery on the IUPUI campus and that the robber had never been caught.

       Beals’ trial counsel and his investigator did not recall the juror stating this.

       However, his trial counsel explained that, if he allowed this juror to be selected,

       then he “must have had some other reason why I liked him.” Post-Conviction

       Tr. p. 17. He further explained that “I don’t recall the juror [T.L.] in particular,

       but, you know, if I, if I chose that person, I, I chose them for a reason.” Id. at

       64.



       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015   Page 11 of 26
[29]   Even if we accept Beals’ claims regarding what juror T.L. stated during voir

       dire, i.e., that his wife had been the victim of a robbery, he cannot prevail. Beals

       points us to no evidence or authority suggesting that someone who is married to

       the victim of a crime is ineligible for jury service. Indeed, no such

       disqualification exists. See Ind. Code § 33-28-5-18 (listing disqualifications from

       jury service). Beals simply assumes that juror T.L. was prejudiced against him

       and ignored his duty as a juror to act impartially. However, this is mere

       speculation. Accordingly, Beals has not established that, but for his trial

       counsel’s failure to strike juror T.L., the result of his trial would have been

       different.


       C. Failure to Object to Pre-Trial Identification Evidence

[30]   Beals also claims that his trial counsel rendered ineffective assistance by failing

       to object at trial to evidence regarding the victims’ pre-trial identification of

       Beals as the man who robbed them. As we noted in our decision in Beals’ direct

       appeal, Beals’ trial counsel did file a pre-trial motion to suppress evidence

       regarding the pre-trial identifications, but the trial court denied this motion. At

       trial, Beals’ trial counsel did not object to the evidence because he thought that

       Beals’ complaints regarding the pre-trial identifications were not meritorious.


[31]   Beals now claims that his trial counsel’s failure to object to the pre-trial

       identification evidence precluded appellate review of the issue. In our decision

       in Beals’ direct appeal, we did acknowledge Beals’ failure to object to the pre-

       trial identification evidence, and we also stated that Beals would therefore have



       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015   Page 12 of 26
       to demonstrate fundamental error to obtain a reversal based on this issue. See

       Beals, slip op. at 7-8. However, in rejecting Beals’ claims, we held that the trial

       court did not abuse its discretion in admitting evidence regarding the pre-trial

       identifications. See id. at 8-9. Thus, we addressed Beals’ appellate argument

       regarding the pre-trial identifications on the merits and found it to be lacking.

       Accordingly, even if Beals’ trial counsel had objected to the pre-trial

       identification evidence, the result of his trial would not have been different

       because the trial court properly admitted the evidence.2


[32]   Moreover, in Beals’ direct appeal, we held that even if the admission of the pre-

       trial identification evidence was improper, it was harmless error, i.e., it did not

       contribute to the verdict. Id. at 9. If the admission of the pre-trial identification

       evidence was harmless, it would also be impossible for Beals to establish that he

       was prejudiced by the admission of the evidence. See Baer v. State, 942 N.E.2d

       80, 106 (Ind. 2011) (holding that counsel’s decision not to present a

       confrontation-clause issue on direct appeal did not prejudice defendant because

       the admission of the evidence at issue was harmless error).


[33]   We therefore conclude that Beals has not established that his trial counsel was

       constitutionally ineffective for failing to object to the pre-trial identification

       evidence.



       2
         To the extent that Beals now claims we erred in concluding that the pre-trial identification evidence was
       admissible, he cannot prevail. Because this issue was decided against him on direct appeal, it may not be
       relitigated in post-conviction proceedings. See Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000) (noting
       that when an issue is decided on direct appeal, the doctrine of res judicata applies, thereby precluding its
       review in post-conviction proceedings).



       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015            Page 13 of 26
       D. Failure to Impeach a Witness

[34]   Beals’ next argument is that his trial counsel was ineffective for not impeaching

       the testimony of Officer Fredrick Lantzer (“Officer Lantzer”) regarding whether

       he was at the hospital when he came into possession of the clothes Beals was

       wearing when arrested, clothes that were admitted into evidence at Beals’ trial.

       Beals argues that Officer Lantzer’s testimony was inconsistent with the

       testimony of evidence technician David Smiley (“Smiley”), who testified that

       he obtained the clothes from an empty emergency room at Wishard Hospital.

       In contrast, Officer Lantzer testified that he was at the emergency room and

       had handed the clothing to Smiley. Beals also notes that neither the police

       incident report nor the probable cause affidavit mention that Officer Lantzer

       traveled to the emergency room. Beals contends that, because it went

       unchallenged, Officer Lantzer’s testimony “took on great weight before the

       jury.” Appellant’s Br. p. 15.

[35]   We first note that Officer Lantzer’s testimony was not contradicted by either the

       police report or the probable cause affidavit. The fact that these documents do

       not mention Officer Lantzer’s presence in the emergency room does not

       necessarily mean that Officer Lantzer was not at the emergency room.

       Furthermore, the post-conviction court noted that one police report, as quoted

       in the pre-sentence investigation report, clearly indicated that Officer Lantzer

       was, in fact, at the emergency room:

               Officer Lantzer . . . followed the ambulance to Wishard Hospital
               that was transporting the suspect, Mr. Beals. When they arrived
               on the scene to Wishard Hospital, Officer Lantzer was able to


       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015   Page 14 of 26
                secure all the clothing from the suspect, then pass that clothing
                off to E[vidence] T[echnician] Smiley, who arrived at Wishard a
                short time thereafter.

       Appellant’s App. p. 96. Thus, any impeachment of Officer Lantzer’s testimony

       would have been of little value given the corroboration of his testimony in the

       police report. Beals has demonstrated neither that the performance of his trial

       counsel was deficient for not attempting to impeach Officer Lantzer’s testimony

       nor that the result of the trial would have been different had his trial counsel so

       attempted to impeach Officer Lantzer’s testimony.


       E. Failure to Request Lesser-Included Offense Instruction

[36]   Beals also contends that his trial counsel was ineffective for failing to request

       that the jury be given an instruction on the lesser-included offense of Class C

       felony robbery. Beals claims an evidentiary dispute at trial with regard to

       whether Beals’ use of a BB gun constituted a deadly weapon for purposes of

       elevating robbery from a Class C to a Class B felony. See Ind. Code § Ind. Code

       § 35-42-5-1 (1984)3 (providing that robbery was a Class C felony but a Class B

       felony if committed while armed with a deadly weapon). He therefore argues

       that he was entitled to a jury instruction on the lesser-included offense of Class

       C felony robbery and that his trial counsel was ineffective for failing to request

       such an instruction.




       3
         We refer to the version of the statute in effect at the time of the commission of the offense. See Culbertson v.
       State, 792 N.E.2d 573, 578 (Ind. Ct. App. 2003) (noting that the statute in effect at the time the underlying
       offense was committed governs a defendant’s proceeding).



       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015              Page 15 of 26
[37]   Regardless of whether Beals would have been entitled to an instruction on the

       lesser-included offense of Class C felony robbery, we cannot say that his trial

       counsel was ineffective for failing to request such an instruction. The defense

       theory at trial was that Beals was not the individual who had committed the

       robberies. As Beals’ trial counsel explained at the post-conviction hearing:


               the defense was it wasn’t you, so why would I say that it was you
               but it wasn’t an armed robbery, it was a lesser robbery?
                                                       ***
               to me if you, you lose credibility when you try to argue out of
               both sides of your mouth, so to speak. Well, he, he wasn’t there
               but if he was, it wasn’t, you know, an armed robbery, it was
               some lesser offense and I think that affects the weight of your
               primary argument[.]

       Post-Conviction Tr. pp. 52, 65.

[38]   Thus, Beals’ counsel’s decision not to seek a lesser-included offense instruction

       was a strategic decision based upon the defense theory that Beals was not the

       robber. We will not second-guess this strategic decision with the benefit of

       hindsight. See Brown v. State, 24 N.E.3d 529, 535 (Ind. Ct. App. 2015) (noting

       that a decision not to tender a lesser-included offense does not constitute

       ineffective assistance of counsel even where the lesser-included offense is

       inherently included in the greater offense and where that choice ultimately

       proves detrimental to the defendant).




       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015   Page 16 of 26
       F. Failure to Object to Jury Instruction Defining Deadly Weapon

[39]   Beals’ last allegation of ineffective assistance of trial counsel involves his

       counsel’s failure to object to a jury instruction which stated:

                 The term deadly weapon is defined by law as meaning:
                 1. A loaded or unloaded firearm; or
                 2. Any weapon, device, taser, electronic stun weapon,
                 equipment, chemical substance, or other material that in the
                 manner it is used, or could ordinarily be used, is readily capable
                 of causing serious bodily injury.

       Appellant’s App. p. 40. This instruction is a correct statement of the law, as it

       tracks the language of the statute defining the term “deadly weapon.” See Ind.

       Code § 35-41-1-8(a) (2006).4


[40]   According to Beals, this instruction permitted the jury to find him guilty of

       robbery with a deadly weapon under subsection (2), which deals with weapons

       other than a loaded or unloaded firearm. Beals claims this was improper

       because he was charged with using a “handgun” which is defined by statute as

       a type of “firearm.” See Ind. Code § 35-47-1-6 (1983). Accordingly, Beals argues

       that the State had to prove that he possessed a firearm, whereas the challenged

       instruction allowed the jury to find him guilty even if it found that he used a BB

       gun, which is not a firearm. See Miller v. State, 616 N.E.2d 750, 757 n.13 (Ind.




       4
           This statue has since been recodified at Ind. Code § 35-31.5-2-86 (2012) with no substantive changes.



       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015            Page 17 of 26
       Ct. App. 1993) (holding that a pellet gun cannot be considered a “handgun”

       because it uses carbon dioxide as the propellant, which cannot explode).5

[41]   Beals’ argument, however, overlooks the actual language of the charging

       information alleging that he committed robbery while armed with a deadly

       weapon. The information did not charge that Beals used a “handgun.”

       Instead, it alleged that Beals committed robbery “while armed with a deadly

       weapon, that is: an air-powered BB replica handgun[.]” Direct Appeal App. p. 31-

       33 (emphasis added).

[42]   By charging Beals with the use of “an air-powered BB replica handgun,” the

       State was not required to prove that the weapon used was an “actual handgun,”

       i.e., a “firearm.” Instead, the jury could properly find that a BB gun was a

       deadly weapon under subsection (2) of the instruction and the statute on which

       it was based. See Davis v. State, 835 N.E.2d 1102, 1112 (Ind. Ct. App. 2005)

       (noting that pellet guns and BB guns can be considered deadly weapons even

       though they are not firearms and further noting that even disabled or inoperable

       pellet guns are deadly weapons within the meaning of the robbery statute)

       (citing Merriweather v. State, 778 N.E.2d 449, 457 (Ind. Ct. App. 2002);Whitfield

       v. State, 699 N.E.2d 666, 670 (Ind. Ct. App. 1998)).




       5
        See id. at 758 (Rucker, J., dissenting in relevant part) (concluding that a pellet gun using carbon dioxide gas
       did fit the statutory definition of a “firearm” because it expelled a projectile by way of an explosion, i.e.,
       “sudden violence from internal energy caused by the pressure from CO2 gas.”).



       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015             Page 18 of 26
[43]   Because the instruction at issue was a correct statement of the law, and because

       Beals was charged with the use of a BB gun, not a firearm, we cannot say that

       his trial counsel was ineffective for failing to object to the instruction.


                        II. Ineffective Assistance of Appellate Counsel

[44]   Beals also claims that his appellate counsel was constitutionally ineffective.

       When we review claims of ineffective assistance of appellate counsel, we use

       the same standard applied to claims of ineffective assistance of trial counsel.

       Harris v. State, 861 N.E.2d 1182, 1186 (Ind. 2007). That is, the post-conviction

       petitioner must show that appellate counsel’s performance fell below an

       objective standard of reasonableness and that but for the deficient performance

       of counsel, a reasonable probability exists that the result of the proceeding

       would have been different. Id.


[45]   We must consider the totality of an attorney’s performance to determine

       whether the client received constitutionally adequate assistance and must be

       “particularly sensitive to the need for separating the wheat from the chaff in

       appellate advocacy, and should not find deficient performance when counsel’s

       choice of some issues over others was reasonable in light of the facts of the case

       and the precedent available to counsel when that choice was made.” Reed v.

       State, 856 N.E.2d 1189, 1196 (Ind. 2006). Moreover, ineffective assistance is

       very rarely found in cases where a defendant asserts that appellate counsel

       failed to raise an issue on direct appeal because the decision of what issues to

       raise is one of the most important strategic decisions to be made by appellate

       counsel. Id.


       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015   Page 19 of 26
[46]   Our supreme court has noted that claims of ineffective assistance of appellate

       counsel generally fall into three categories: (1) denial of access to an appeal; (2)

       waiver of issues; and (3) failure to present issues well. Id. at 1195. To show that

       counsel was ineffective for failing to raise an issue on appeal, the defendant

       must overcome the strongest presumption of adequate assistance, and judicial

       scrutiny is highly deferential. Id. To evaluate the performance prong when

       counsel failed to raise issues upon appeal, we apply the following test: (1)

       whether the unraised issues are significant and obvious from the face of the

       record, and (2) whether the unraised issues are “clearly stronger” than the

       raised issues. Id. If the analysis under this test demonstrates deficient

       performance, then we examine whether, “the issues which . . . appellate counsel

       failed to raise, would have been clearly more likely to result in reversal or an

       order for a new trial.” Id.


       A. Failure to Claim Ineffective Assistance on Direct Appeal

[47]   Beals first briefly argues that his appellate counsel was ineffective for failing to

       present on direct appeal his claims of ineffective assistance of trial counsel. We

       strongly disagree.

[48]   For almost twenty years, our courts have held that post-conviction proceedings

       are the preferred forum for adjudicating claims of ineffective assistance of

       counsel. Rogers v. State, 897 N.E.2d 955, 964 (Ind. Ct. App. 2008) (citing

       McIntire v. State, 717 N.E.2d 96, 101 (Ind. 1999); Woods v. State, 701 N.E.2d

       1208, 1219 (Ind. 1998)). Post-conviction proceedings are the preferred forum for



       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015   Page 20 of 26
       presenting claims of ineffective assistance because such claims usually require

       the development of new facts not present in the trial record. Id. at 964-65 (citing

       McIntire, 717 N.E.2d at 101).


[49]   Although a defendant is not prohibited from presenting a claim of ineffective

       assistance of counsel on direct appeal, if he chooses to do so, claims of

       ineffective assistance may not be presented in subsequent post-conviction

       proceedings. Id. at 965 (citing McIntire, 717 N.E.2d at 102; Woods, 701 N.E.2d

       at 1220). “[T]his rule [should] deter all but the most confident appellants from

       asserting any claim of ineffectiveness on direct appeal,” Woods, 701 N.E.2d at

       1220, and it is no surprise that claims of ineffective assistance presented on

       direct appeal almost always fail. Id. at 1216 (citing United States v. Taglia, 922

       F.2d 413, 418 (7th Cir. 1991)).


[50]   Thus, Beals’ appellate counsel followed the strongly preferred procedure by not

       presenting any claims of ineffective assistance of trial counsel on direct appeal.

       Beals’ appellate counsel’s choice was prudent and did not constitute ineffective

       assistance.


       B. Failure to Claim Insufficient Evidence

[51]   Beals also claims that his appellate counsel was ineffective for failing to present

       on direct appeal a claim that the evidence was insufficient to support his

       convictions for Class B felony robbery while armed with a deadly weapon. Yet

       again, Beals claims that the charging information alleged that he used a

       “handgun,” defined as a type of “firearm,” which an air-powered BB gun is not.


       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015   Page 21 of 26
       However, as noted above, the State did not charge Beals with using a

       “handgun” to commit the robberies. Instead, the State alleged that Beals used

       “an air-powered BB replica handgun[.]” Direct Appeal App. pp. 31-33. Beals

       does not even deny that he used a BB gun in the robberies. He instead simply

       argues that the BB gun was not a handgun because it was not a firearm.

       However, the State was not required to prove that Beals used a “handgun,” it

       was required to prove that he used an air-powered BB replica handgun, and

       ample evidence existed to prove this. Specifically, the police found a black BB

       gun that was designed to look like a semi-automatic handgun in the lot where

       Beals crashed his vehicle, and the witnesses to the robberies testified that the

       robber used what appeared to be a black, semi-automatic handgun. Under these

       facts and circumstances, Beals’ appellate counsel was not ineffective for failing

       to present this meritless claim of insufficient evidence on direct appeal.


       C. Admission of the Photo Array

[52]   Beals next claims that his appellate counsel was ineffective for failing to claim

       on direct appeal that the admission of the photo array was impermissible

       because it occurred after he was charged but was done without notification to

       Beals or the presence of his counsel. Again, however, Beals’ argument is based

       on a flawed legal presumption.

[53]   Although the presence of counsel during a physical line-up that occurs after

       adversary judicial proceedings have begun is a right, see Parsley v. State, 557

       N.E.2d 1331, 1334 (Ind. 1990), no constitutional right to the presence of



       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015   Page 22 of 26
       counsel when a witness is shown a photographic array exists. Peterson v. State,

       514 N.E.2d 265, 268 (Ind. 1987) (citing United States v. Ash, 413 U.S. 300, 321

       (1973) (“We hold, then, that the Sixth Amendment does not grant the right to

       counsel at photographic displays conducted by the Government for the purpose

       of allowing a witness to attempt an identification of the offender.”)).


[54]   Because Beals’ argument with regard to the photographic array is legally

       baseless, we cannot fault his appellate counsel for failing to present this

       meritless claim on direct appeal.6


                                              III. Directed Verdict

[55]   Beals also presents, as a free-standing claim of error, that the trial court should

       have, sua sponte, ordered a directed verdict in his favor because the State failed

       to prove that the weapon used during the robberies was a handgun. Beals’

       argument fails for at least two reasons. First, this is simply yet another attempt

       by Beals to claim that the State was required to prove that he used a handgun,

       and therefore a firearm, during the robberies. As discussed above, however, the

       State did not allege that Beals used a “actual handgun,” but instead alleged that

       he used an “air-powered BB replica handgun.”

[56]   More importantly, Beals brings this claim as a free-standing claim of error.

       However, “[i]n post-conviction proceedings, complaints that something went

       awry at trial are generally cognizable only when they show deprivation of the

       6
         Beals also briefly claims that the cumulative effect of the alleged errors of his counsel require reversal.
       However, because we have determined that his counsel’s alleged errors were not errors at all, this argument
       fails.



       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015           Page 23 of 26
       right to effective counsel or issues demonstrably unavailable at the time of trial

       or direct appeal.” Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002). Beals makes

       no claim that this claim was demonstrably unavailable to him at the time of his

       trial or direct appeal. He may not bring it as a free-standing claim of error on

       direct appeal. See Timberlake v. State, 753 N.E.2d 591, 597-98 (Ind. 2001) (noting

       that if an issue is known and available, but not raised on direct appeal, it is

       waived for purposes of post-conviction relief and that most free-standing claims

       of error are not available in a postconviction proceeding because of the

       doctrines of waiver and res judicata).

                       IV. Failure to Order Transcript of Jury Voir Dire

[57]   Beals next argues that the post-conviction court abused its discretion by failing

       to deliver to him transcripts of the voir dire of the jury panel. Beals claims that

       he repeatedly asked the post-conviction court for the transcript of his trial,

       including the voir dire of the jury. Despite this, no transcript of the voir dire was

       ever made, and Beals therefore had no access to such a transcript at the post-

       conviction proceedings. In denying his petition for post-conviction relief, the

       post-conviction court noted that Beals had failed to present the voir dire

       transcript as evidence. Beals claims that he was unable to do so because the trial

       court never responded to his requests for a transcript of the voir dire.

[58]   Beals did request by motion a copy of the record of proceedings of his trial. At

       the post-conviction hearing, Beals had a copy of the record of his trial.

       However, the record of the trial did not include a transcript of the voir dire of

       the jury. See Trial Tr. p. 13 (noting simply “VOIR DIRE” and “JURY


       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015   Page 24 of 26
       SELECTED, ALL JURORS IN OPEN COURT”). Although Beals sent a

       request to the trial court clerk asking for a copy of the trial record, including the

       voir dire, we have found nothing in the record indicating that Beals formally

       requested the post-conviction court by motion to order the trial court clerk

       prepare a transcript of the voir dire specifically. We therefore cannot say that

       the post-conviction court abused its discretion.

[59]   Moreover, as noted above, even if we assume that Beals’ recollection of the voir

       dire was correct and that juror T.L. indicated that his wife had been the victim

       of a robbery, Beals has not demonstrated any prejudice.


                         V. Retrial on Habitual Offender Enhancement

[60]   Lastly, Beals claims that the post-conviction court erred in scheduling a new

       trial on the habitual offender adjudication that the post-conviction court

       vacated. According to Beals, retrial on the habitual offender adjudication would

       constitute impermissible double jeopardy.

[61]   Generally, constitutional prohibitions of double jeopardy bar retrial when a

       defendant’s conviction is reversed due to insufficient evidence because such a

       reversal is tantamount to an acquittal. Dexter v. State, 959 N.E.2d 235, 240 (Ind.

       2012) (citing Burks v. United States, 437 U.S. 1, 16-17 (1978)). However, retrial

       on a sentencing enhancement based on a prior conviction is permitted even

       where the enhancement is reversed because of insufficient evidence. Id. (citing

       Monge v. California, 524 U.S. 721, 727-34 (1998); Jaramillo v. State, 823 N.E.2d




       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015   Page 25 of 26
       1187, 1191 (Ind. 2005)). Accordingly, no double jeopardy prohibition against

       holding a retrial on Beals’ vacated habitual offender adjudication exists.

                                                   Conclusion

[62]   The post-conviction court did not clearly err in rejecting Beals’ claims of

       ineffective assistance of trial and appellate counsel. The trial court did not err in

       failing to sua sponte order a directed verdict in favor of Beals. The post-

       conviction court did not abuse its discretion by failing to provide Beals with a

       transcript of the voir dire. Lastly, Beals’ retrial on the habitual offender

       enhancement does not constitute double jeopardy.


[63]   Affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1411-PC-776 | July 8, 2015   Page 26 of 26
