MEMORANDUM DECISION
                                                                  Jun 30 2015, 10:10 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT, PRO SE                                         ATTORNEYS FOR APPELLEE
Lamarr T. Crittenden                                      Gregory F. Zoeller
Miami Correctional Facility                               Attorney General of Indiana
Bunker Hill, Indiana
                                                          George P. Sherman
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Lamarr T. Crittenden,                                     June 30, 2015

Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          49A05-1405-PC-227
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         Lower Court Cause No.
                                                          49G04-0810-PC-227401
Appellee-Respondent.
                                                          The Honorable Lisa F. Borges,
                                                          Judge
                                                          The Honorable Anne Flannelly,
                                                          Magistrate




Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015       Page 1 of 38
                                       Statement of the Case
[1]   Lamarr T. Crittenden (“Crittenden”) filed a pro se petition for post-conviction

      relief, alleging multiple claims of ineffective assistance of both trial and

      appellate counsel. Prior to the post-conviction hearing, the post-conviction

      court granted Crittenden’s request for the issuance of subpoenas to his trial and

      appellate counsel, but it denied his request to issue subpoenas to four other

      proposed witnesses, finding that the testimony of these proposed witnesses was

      neither relevant nor probative. The post-conviction court also denied various

      discovery motions filed by Crittenden. During the post-conviction hearing,

      when Crittenden moved to admit into evidence two Department of Child

      Services (“DCS”) reports, the State objected based on a lack of foundation, and

      the post-conviction court sustained the objection and ruled that the reports

      would not be admitted at that time.


[2]   Following the hearing, the post-conviction court issued its findings and

      conclusions in which it denied post-conviction relief in part and granted it in

      part. Specifically, the post-conviction court concluded that Crittenden’s trial

      counsel had rendered deficient performance at sentencing by failing to realize

      that the statutory minimum sentence for Class A felony child molesting was

      twenty years and by failing to bring the correct sentencing range to the trial

      court’s attention, and the post-conviction court concluded that this

      “misimpression” was sufficient to show prejudice. As a result, the post-

      conviction court ordered that a new sentencing hearing be held. The post-

      conviction court also concluded that Crittenden’s appellate counsel had

      Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 2 of 38
      rendered ineffective assistance by failing to raise that sentencing issue on

      appeal. In regard to Crittenden’s other allegations of ineffective assistance of

      trial and appellate counsel, the post-conviction court concluded that he had

      failed to meet his burden of proving these claims, and it denied post-conviction

      relief on these remaining claims.


[3]   On appeal, Crittenden argues that the post-conviction court erred by: (1)

      denying his requests for subpoenas; (2) denying his motions for discovery; (3)

      excluding the DCS reports from evidence; and (4) denying post-conviction relief

      on his remaining ineffective assistance of trial and appellate counsel claims.

      Concluding that the post-conviction court committed no error as alleged by

      Crittenden, we affirm the post-conviction court’s judgment.


[4]   We affirm.


                                                     Issues
              1. Whether the post-conviction court abused its discretion by
              denying Crittenden’s request to issue four subpoenas.

              2. Whether the post-conviction court abused its discretion by
              denying Crittenden’s various discovery motions.

              3. Whether the post-conviction court abused its discretion by
              excluding Crittenden’s proposed evidence of DCS records from
              the post-conviction hearing.

              4. Whether the post-conviction court erred by denying post-
              conviction relief on Crittenden’s remaining claims of ineffective
              assistance of trial and appellate counsel.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 3 of 38
                                                     Facts
[5]   The facts of Crittenden’s crimes were set forth in the memorandum decision

      from his direct appeal as follows:

              In 2006, Crittenden began cohabiting with Shontae Matlock and
              her daughter D.M., born February 8, 1999, on Denny Street in
              Indianapolis. On one occasion during 2007 or 2008, Crittenden
              entered D.M.’s bedroom while she was sleeping and ordered her
              to perform fellatio on him. When she refused, Crittenden placed
              his hand inside her vagina and moved it around. He then
              performed anal intercourse on her. Crittenden admonished
              D.M. not to tell anyone about the incident.
              Nevertheless, D.M. told her mother, who refused to believe her
              allegations. On May 11, 2008, D.M. reported the incident to her
              aunt, Lawanna Smith, who took her to the hospital for a medical
              examination.
              On October 7, 2008, the State charged Crittenden with two
              counts of class A felony child molesting and two counts of class
              C felony child molesting. On April 7, 2009, the State filed a
              notice of intent to introduce child hearsay statements at trial. On
              April 27, 2009, the trial court held a hearing on the matter and
              determined that such statements were admissible, subject to
              limitations set forth in Tyler v. State, 903 N.E.2d 463 (Ind. 2009).
              That same day, Crittenden waived his right to jury trial, and a
              bench trial ensued. The trial court found Crittenden guilty of one
              count of class A felony child molesting [for putting his penis in
              D.M.’s anus] and one count of class C child molesting [for
              fondling D.M.]. At the May 26, 2009 sentencing hearing, the
              trial court made the following statement:
                       I want to state this specifically for the record, that
                       my verdict was based on the child’s testimony, that
                       I gave no weight in my decision to the statements
                       that the victim made to [Aunt] Lawanna Smith or
                       any other individual but only upon her testimony

      Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 4 of 38
                        here at trial, which I found to be compelling and
                        credible.
               Tr. at 153 . . . .

      Crittenden v. State, No. 49A05-0906-CR-355, *1 (Ind. Ct. App. Jan. 21, 2010)

      (footnote omitted), trans. denied.


[6]   During Crittenden’s May 26, 2009 sentencing hearing, the trial court stated that

      the “minimum amount of time” that Crittenden could receive for his Class A

      felony conviction was “thirty years executed.” (Tr. 148).1 Crittenden’s trial

      counsel agreed, asked the court to sentence Crittenden to “the absolutely

      minimum executed sentence that the Court c[ould,]” and requested that the

      trial court sentence him to “thirty years, thirty-five years, suspend five, two of

      that [to] probation . . . and the minimum sentence executed in the Department

      of Correction[].” (Tr. 152). The trial court sentenced Crittenden to thirty-five

      (35) years, with thirty (30) years executed and five (5) years suspended, for his

      Class A felony conviction and six (6) years for his Class C felony conviction,

      and the trial court ordered that these sentences be served concurrently.


[7]   Thereafter, Crittenden appealed his convictions and argued that the State

      “failed to present sufficient evidence to establish territorial jurisdiction over his




      1
       We will refer to the direct appeal transcript as “(Tr.),” the direct appeal appendix as “(App.),” the post-
      conviction transcript as “(P-CR Tr.),” and the post-conviction appendix as “(P-CR App.).”

      Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015                 Page 5 of 38
      case.” Crittenden v. State, No. 49A05-0906-CR-355 at *1. Our Court held that

      there was sufficient evidence and affirmed his convictions.


[8]   On July 29, 2010, Crittenden filed a pro se petition for post-conviction relief.

      Thereafter, the State Public Defender entered an appearance, investigated

      Crittenden’s claims, and then, in February 2012, withdrew its appearance

      pursuant to Post-Conviction Rule 1(9)(c). Crittenden later filed amended pro se

      post-conviction petitions.


[9]   Crittenden raised post-conviction claims of ineffective assistance of trial and

      appellate counsel, as well as, freestanding claims of error relating his sentence.

      Specifically, Crittenden alleged that his trial counsel had rendered ineffective

      assistance by: (1) failing to file a motion to dismiss, which he alleged should

      have been based on: (a) the probable cause affidavit and charging information

      lacking a file stamp; (b) a challenge to the constitutionality of the child

      molesting statute; and (c) a challenge to the lack of criminal intent element; (2)

      failing to sufficiently investigate his case and to present witnesses (including

      character witnesses in favor of Crittenden and witnesses to discredit D.M.’s

      testimony); (3) failing to advise him regarding his chances at trial and the

      benefits of accepting a plea offer; (4) failing to cross-examine the child victim

      and the forensic child interviewer at the pretrial child-hearsay hearing; (5)

      failing to admit evidence of two DCS reports;2 (6) failing to object to the




      2
        One of these DCS reports was written, following a complaint filed on April 1, 2008, regarding a lack of
      food, shelter, and clothing in D.M.’s home, while the other report was written, following a complaint filed on

      Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015              Page 6 of 38
       admissibility of the victim’s medical exam and entering into a stipulation

       regarding the examining nurse’s testimony; (7) being unaware that the statutory

       minimum sentence for Class A child molesting was twenty years; and (8) failing

       to object—based on Blakely3—to the trial court’s aggravation of his sentence.


[10]   In regard to Crittenden’s ineffective assistance of appellate counsel claim, he

       alleged that his counsel rendered ineffective assistance by: (1) failing to

       sufficiently argue the territorial jurisdictional sufficiency issue raised on direct

       appeal; (2) failing to present a separate sufficiency issue on appeal; and (3)

       failing to raise sentencing issues, including a challenge that the trial court and

       his trial counsel misapplied the law regarding the statutory minimum sentence

       for his Class A felony child molesting conviction and a challenge to the

       enhancement of his sentence based on Blakely.


[11]   During the course of this post-conviction proceeding, Crittenden filed various

       discovery motions, which were ultimately denied by the post-conviction court.

       These motions included: (1) Requests for Access to Relevant Portions of the

       Record (filed August 22, 2012 and March 8, 2013); (2) a Motion to Compel

       Release of Documents (filed on November 13, 2012); (3) Request for Access to

       Relevant Portions of the Record (filed March 8, 2013); (4) a Request for

       Documents, Calculated to Lead to Discovery of Admissible Evidence, Pursuant




       May 11, 2008, regarding allegations of sexual abuse against Crittenden that then led to the current charges
       being filed against him.
       3
           Blakely v. Washington, 542 U.S. 296 (2004), reh’g denied.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015               Page 7 of 38
       to Trial Rule 34(B) (filed on March 11, 2013); and (5) a Motion for Offer to

       Prove (filed on March 21, 2013). When denying some of these motions, the

       post-conviction determined that Crittenden had “failed to show how the

       requested discovery [wa]s necessary to support his pending post-conviction

       relief claims, and he ha[d] not shown that he ha[d] made any effort to obtain

       such evidence from his trial counsel’s file or his previously-appointed State

       Public Defender.” (P-CR App. 134, 144).


[12]   Prior to the post-conviction hearing, Crittenden filed a request for the post-

       conviction court to issue subpoenas. He sought to have subpoenas issued to:

       (1) his trial counsel; (2) his appellate counsel; (3) the deputy prosecutor from his

       bench trial; (4) the nurse who performed a medical exam on the victim and who

       did not testify at trial because the parties stipulated that she had examined D.M.

       and stipulated that the exam did not reveal any signs of injury to D.M.’s

       genitalia;4 (5) a DCS family case manager who did not testify at trial and who

       wrote the April 2008 DCS report after she conducted an interview with D.M.

       and her mother following a complaint regarding a lack of food, shelter, and

       clothing in the home; and (6) a DCS family case manager who did not testify at

       trial and who wrote the May 2008 DCS report that contained allegations of

       sexual abuse against Crittenden and that led to the current charges being filed




       4
         Specifically, the parties stipulated that the nurse “examined” D.M. and that D.M. “did not have any
       injuries to her genitalia which neither confirm[ed] nor negate[d] the allegations of sexual abuse.” (Tr. 118).



       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015                Page 8 of 38
       against him. Thereafter, the post-conviction court entered an order granting

       Crittenden’s request for subpoenas for his trial and appellate counsel and

       denying his request for subpoenas for the remaining four witnesses. The post-

       conviction court explained that it denied Crittenden’s request for the remaining

       witnesses “for the reason that the Court finds that each of these proposed

       witness’ testimony is not relevant and probative.” (P-CR App. 209).


[13]   On June 18, 2013, the post-conviction court held a hearing on Crittenden’s

       petition. During the hearing, at which Crittenden represented himself pro se,

       he called his trial counsel and appellate counsel as witnesses. He also testified

       on his own behalf. The post-conviction court took judicial notice of its file, the

       trial and sentencing transcripts, the appellate briefs, and this Court’s

       memorandum decision from Crittenden’s direct appeal.


[14]   Crittenden’s trial attorney did not have a specific recollection of the details of

       the underlying case. When questioning his trial counsel, Crittenden moved to

       admit the two DCS reports that Crittenden stated “were discovered to [his trial

       counsel] by [the] Deputy Prosecuting Attorney[.]” (P-CR Tr. 58). The State

       noted that the DCS reports appeared to be photocopies, and it objected to the

       admission of these reports based on a lack of foundation and lack of self-

       authentication. The post-conviction court sustained the objection and stated




       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 9 of 38
       that the reports would “not [be] admitted at this time.” (P-CR Tr. 59).

       Crittenden did not try later to have the reports admitted into evidence. 5


[15]   Crittenden questioned his appellate counsel about his decision-making process

       when deciding what issue to raise on appeal. When Crittenden asked appellate

       counsel if a sufficiency of the evidence issue would have been a more

       meritorious issue to raise than the territorial jurisdiction issue, appellate counsel

       disagreed. Appellate counsel stated that “there was sufficient evidence to

       support the finding of guilty” and that he thought the jurisdictional issue was a

       better one to raise. (P-CR Tr. 13).


[16]   On May 15, 2014, the post-conviction court issued its findings and conclusions

       in which it denied post-conviction relief in part and granted it in part.

       Specifically, the post-conviction court concluded that Crittenden’s trial counsel

       had rendered deficient performance at sentencing by stating that the statutory

       minimum sentence for a Class A felony child molesting conviction was thirty

       years instead of twenty years and by failing to bring the correct sentencing range

       to the trial court’s attention. The post-conviction court also concluded that this

       “misimpression” was sufficient to show prejudice. (P-CR App. 362). As a

       result, the post-conviction court ordered that a new sentencing hearing be held.

       The post-conviction court also concluded that Crittenden’s appellate counsel




       5
         These reports, however, appear to be part of the court’s file because the prosecutor submitted them to the
       trial court for review prior to the bench trial and then filed a copy of the reports that were sent to Crittenden’s
       trial counsel as part of the pre-trial discovery.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015                  Page 10 of 38
       had rendered ineffective assistance by failing to raise the issue on appeal. In

       regard to Crittenden’s other allegations of ineffective assistance of trial and

       appellate counsel, the post-conviction court concluded that Crittenden had

       failed to prove that he had received ineffective assistance of counsel. Lastly, the

       post-conviction court concluded that Crittenden had waived his freestanding

       claims of error relating to sentencing.


[17]   Crittenden now appeals the post-conviction court’s ruling on his ineffective

       assistance of counsel claims, as well as, the court’s rulings on some procedural

       issues. Additional facts will be provided when discussing Crittenden’s appellate

       arguments.


                                                   Decision
[18]   Crittenden appeals from the post-conviction court’s order denying post-

       conviction relief on his remaining claims of ineffective assistance of trial and

       appellate counsel. Our standard of review in post-conviction proceedings is

       well settled.

               We observe that post-conviction proceedings do not grant a
               petitioner a “super-appeal” but are limited to those issues
               available under the Indiana Post-Conviction Rules. Post-
               conviction proceedings are civil in nature, and petitioners bear
               the burden of proving their grounds for relief by a preponderance
               of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner
               who appeals the denial of PCR faces a rigorous standard of
               review, as the reviewing court may consider only the evidence
               and the reasonable inferences supporting the judgment of the
               post-conviction court. The appellate court must accept the post-
               conviction court’s findings of fact and may reverse only if the

       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 11 of 38
               findings are clearly erroneous. If a PCR petitioner was denied
               relief, he or she must show that the evidence as a whole leads
               unerringly and unmistakably to an opposite conclusion than that
               reached by the post-conviction court.


       Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal case

       citations omitted), trans. denied.


[19]   Before addressing Crittenden’s post-conviction claims, we will first address his

       challenges to the post-conviction court’s procedural rulings that occurred during

       the course of this post-conviction proceeding. He argues that the post-

       conviction court erred in its following rulings: (1) denying his request for the

       issuance of four subpoenas; (2) denying his various discovery motions; and (3)

       excluding his proposed evidence of DCS records.


       1. Subpoenas

[20]   We first address Crittenden’s contention that the post-conviction court erred by

       denying his request to issue subpoenas to four witnesses.


[21]   Post-Conviction Rule 1(9)(b)—which addresses the issuance of subpoenas in a

       post-conviction proceeding—provides, in relevant part that:

               If the pro se petitioner requests issuance of subpoenas for
               witnesses at an evidentiary hearing, the petitioner shall
               specifically state by affidavit the reason the witness’ testimony is
               required and the substance of the witness’ expected testimony. If
               the court finds the witness’ testimony would be relevant and
               probative, the court shall order that the subpoena be issued. If
               the court finds the proposed witness’ testimony is not relevant


       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 12 of 38
                  and probative, it shall enter a finding on the record and refuse to
                  issue the subpoena.


[22]   A post-conviction court’s decision to grant or deny a request for issuance of a

       subpoena is within its discretion. Collins v. State, 14 N.E.3d 80, 84 (Ind. Ct.

       App. 2014). An abuse of discretion occurs where the decision is against the

       logic and effect of the facts and circumstances. Id.


[23]   Here, the post-conviction court granted Crittenden’s request for the issuance of

       subpoenas to his trial and appellate attorneys but denied his request for

       subpoenas to four other requested witnesses, which included the deputy

       prosecutor, a nurse who examined D.M., and two DCS family case managers.6

       In Crittenden’s request for subpoenas for these four witnesses, he generally

       alleged that they would help him prove his claims of ineffective assistance of

       trial counsel. When denying Crittenden’s request for subpoenas, the post-

       conviction court explained that it did so “for the reason that the Court finds that

       each of these proposed witness’ testimony is not relevant and probative.” (P-

       CR App. 209).


[24]   On appeal, Crittenden again makes a general assertion, without further

       explanation, that these witnesses would support his claims of ineffective

       assistance of counsel. Accordingly, Crittenden has failed to show that the post-

       conviction court abused its discretion by denying his request for subpoenas.




       6
           Again, neither of the DCS workers nor the nurse testified at trial.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 13 of 38
       See, e.g., Collins, 14 N.E.3d at 84 (finding no abuse of discretion by the post-

       conviction court’s refusal to issue subpoenas where the petitioner failed to

       provide any information on appeal to show how a proposed witness would

       have offered any relevant testimony to his post-conviction claims); see also

       Johnson v. State, 832 N.E.2d 985, 994-95 (Ind. Ct. App. 2005) (holding that a

       petitioner who had failed to explain how a proposed witnesses’ testimony

       would support his ineffective assistance of counsel claim waived his claim that

       the post-conviction court erred by denying his request for a subpoena).


       2. Discovery

[25]   Crittenden argues that the post-conviction court abused its discretion when it

       denied his various discovery motions. We have consolidated his specific

       arguments on these motions and will discuss them in further detail below.


[26]   “Post-conviction proceedings are governed by the same rules ‘applicable in civil

       proceedings including pre-trial and discovery procedures.’” Wilkes v. State, 984

       N.E.2d 1236, 1251 (Ind. 2013) (quoting P-C.R. 1(5)). “[P]ost-conviction courts

       are accorded broad discretion in ruling on discovery matters[,] and we will

       affirm their determinations absent a showing of clear error and resulting

       prejudice.” Id. (citing State v. McManus, 868 N.E.2d 778, 790 (Ind. 2007), cert.

       denied).


       A. Requests for Access to Relevant Portions of the Record

[27]   Crittenden first argues that the post-conviction court erred by denying his

       Requests for Access to Relevant Portions of the Record, one of which he filed


       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 14 of 38
       August 22, 2012 and the other on March 8, 2013. In his appellate brief,

       Crittenden specifically challenges the post-conviction court’s denial of his

       request for the following portions of the record: (1) a photograph taken by a

       DCS caseworker that was included in trial discovery from the prosecutor to

       Crittenden’s trial attorney; and (2) a DVD copy of the VHS tape that contained

       the statement that D.M. made to the forensic child interviewer and that was

       admitted, along with the transcript of the statement, during the child-hearsay

       hearing.


[28]   When denying one of these motions, the post-conviction court determined that

       Crittenden had “failed to show how the requested discovery [wa]s necessary to

       support his pending post-conviction relief claims, and he ha[d] not shown that

       he ha[d] made any effort to obtain such evidence from his trial counsel’s file or

       his previously-appointed State Public Defender.” (P-CR App. 134).


[29]   On appeal, Crittenden generally alleges that his requested documents were

       needed to prove his post-conviction claims, but he fails to explain how these

       various discovery motions would have helped to support those claims. He also

       fails to dispute the post-conviction court’s conclusion that he could have

       obtained these records from his trial counsel’s file or previously-appointed State

       Public Defender. Accordingly, we conclude that the post-conviction court did

       not abuse its discretion by denying his Requests for Access to Relevant Portions

       of the Record.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 15 of 38
       B. Motion to Compel Release of Documents

[30]   Crittenden next argues that the post-conviction court erred by denying his

       Motion to Compel Release of Documents, in which he asked the post-

       conviction court to issue an order requiring the State to serve three sets of

       interrogatories that he had previously tendered to the State. These

       interrogatories did not contain questions posed to the State; instead, they were

       interrogatories addressed to three non-party individuals, all of whom did not

       testify at his bench trial. These individuals included the nurse for whom the

       parties entered a stipulation regarding her testimony and the two DCS case

       workers who wrote DCS reports that were not introduced into evidence during

       his bench trial.


[31]   Indiana Trial Rule 33 provides, in relevant part, that “[a]ny party may serve

       upon any other party written interrogatories to be answered by the party

       served[.]” (Emphasis added). Here, Crittenden tendered interrogatories to the

       State to serve upon three non-party individuals who did not testify at trial. On

       appeal, he has not shown how the post-conviction court’s denial of his request

       to compel the State to serve these interrogatories on these non-parties was clear

       error or that it resulted in prejudice. Accordingly, we affirm the post-conviction

       court’s denial of his Motion to Compel Release of Documents. See Wilkes, 984

       N.E.2d at 1251 (explaining that we will affirm a post-conviction court’s

       discovery ruling absent a showing of clear error and resulting prejudice).




       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 16 of 38
       C. Request for Documents Pursuant to Trial Rule 34(B)

[32]   Crittenden also contends that the post-conviction court erred by denying his

       Request for Documents, Calculated to Lead to Discovery of Admissible

       Evidence, Pursuant to Trial Rule 34(B). In this motion, Crittenden requested

       items that he had requested in previously-denied pretrial discovery motions,

       such as the photograph taken by a DCS worker, an in-camera review of the two

       DCS reports, and a DVD recording of D.M.’s statement to the forensic child

       interviewer. The post-conviction court denied this request, determining that

       Crittenden had “failed to show how the requested discovery [wa]s necessary to

       support his pending post-conviction relief claims, and he ha[d] not shown that

       he ha[d] made any effort to obtain such evidence from his trial counsel’s file or

       his previously-appointed State Public Defender.” (P-CR App. 134).


[33]   Crittenden has not shown that he could not have obtained these records from

       his trial counsel’s file or previously-appointed State Public Defender. Also, he

       has not shown that the post-conviction court’s determination was clearly

       erroneous or that it resulted in prejudice. Accordingly, we conclude that the

       post-conviction court did not abuse its discretion by denying his Request for

       Documents.


       D. Motion for Offer to Prove

[34]   Lastly, Crittenden argues that the post-conviction court erred by denying his

       Motion for Offer to Prove. As Crittenden acknowledges, in this motion, he

       “once again requested the same discovery that he ha[d] requested multiple

       times before[,]”which included a DVD recording of D.M.’s statement to the

       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 17 of 38
       forensic child interviewer, a “hard copy of the audio version of the trial and

       sentencing transcripts[,]” an in-camera review of the April 2008 and May 2008

       DCS reports, and the name of the complainant from the April 2008 DCS

       report.7 (Crittenden’s Br. 12).


[35]   Crittenden has failed to show that the post-conviction court’s ruling was

       erroneous or that he was prejudiced by the denial of these items. Indeed, the

       record from his direct appeal contained a VHS copy and a transcript of D.M.’s

       statement to the forensic child interviewer, as well as, the transcripts from his

       trial and sentencing hearings. In regard to Crittenden’s request for an in-camera

       review of the two DCS reports, the record shows that he had these two

       documents; indeed, he tried to introduce them into evidence during the post-

       conviction hearing. As to his request for the name of the complainant from the

       April 2008 DCS report, we note that this report was not admitted during his

       bench trial and that it pertained to an allegation of a lack of food, shelter, and

       clothing, which is an allegation unrelated to Crittenden’s crimes. Because

       Crittenden has failed to show how the post-conviction court’s denial of his

       Motion for Offer to Prove was clearly erroneous or prejudiced him, he has

       failed to show that the post-conviction court abused its discretion by denying

       his motion.




       7
         In his Motion for Offer to Prove, Crittenden asserted that he wanted the name of the complainant so that he
       could show that it was D.M.’s aunt. This April 2008 DCS report—which was offered as Petitioner’s Exhibit
       I but not admitted into evidence during the post-conviction hearing—was based upon an allegation, made by
       a relative, of a lack of food, shelter, and clothing in D.M.’s home.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015            Page 18 of 38
       3. Evidentiary Ruling

[36]   Turning to Crittenden’s challenge to the post-conviction court’s exclusion of the

       DCS reports from evidence, we note that in a post-conviction hearing, “[t]he

       admission or exclusion of evidence is within the sound discretion of the [post-

       conviction] court and will not be disturbed on review unless there was an abuse

       of discretion on the part of the [post-conviction] court.” Roche v. State, 690

       N.E.2d 1115, 1134 (Ind. 1997), reh’g denied.


[37]   When questioning his trial counsel during the post-conviction hearing,

       Crittenden attempted to admit two DCS reports into evidence. The State noted

       that the DCS reports appeared to be photocopies, and it objected to the

       admission of these reports based on a lack of foundation and lack of self-

       authentication. The post-conviction court sustained the objection and stated

       that the reports would “not [be] admitted at this time.” (P-CR Tr. 59).

       Crittenden did not try later to have the reports admitted into evidence.


[38]   On appeal, Crittenden neither argues that the exclusion of this evidence

       violated an evidentiary rule nor offers any argument as to why it should have

       been admitted. Accordingly, he has not shown that the post-conviction court

       abused its discretion by excluding the DCS reports from evidence. See, e.g., id.

       (holding that the post-conviction court did not abuse its discretion by excluding

       evidence where the petitioner made “no argument that the exclusion of th[e]




       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 19 of 38
       evidence violated any evidentiary rule nor even any argument as to why [the

       evidence] should have been admitted”).8


       4. Post-Conviction Claims – Ineffective Assistance of Counsel

[39]   Lastly, we review Crittenden’s challenge to the post-conviction court’s rulings

       on his ineffective assistance of counsel claims. Although the post-conviction

       court granted relief based on Crittenden’s ineffective assistance of counsel

       claims regarding his sentencing, the post-conviction court concluded that

       Crittenden had failed to meet his burden of proving the remainder of his

       ineffective assistance of counsel claims. Now, on appeal, Crittenden argues

       that the post-conviction court erred by denying post-conviction relief on these

       remaining ineffective assistance of trial and appellate counsel claims.


[40]   We apply the same standard of review to claims of ineffective assistance of

       appellate counsel as we apply to claims of ineffective assistance of trial counsel.

       Williams v. State, 724 N.E.2d 1070, 1078 (Ind. 2000), reh’g denied, cert. denied. A

       claim of ineffective assistance of trial counsel requires a showing that: (1)

       counsel’s performance was deficient by falling below an objective standard of

       reasonableness based on prevailing professional norms; and (2) counsel’s

       performance prejudiced the defendant such that “‘there is a reasonable

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

       proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444



       8
         Again, we note that these reports appear to be part of the court’s file over which the post-conviction court
       took judicial notice.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015                Page 20 of 38
       (Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984), reh’g

       denied), reh’g denied, cert. denied. “A reasonable probability arises when there is a

       ‘probability sufficient to undermine confidence in the outcome.’” Grinstead v.

       State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466 U.S. at 694).

       “Failure to satisfy either of the two prongs will cause the claim to fail.” Gulzar

       v. State, 971 N.E.2d 1258, 1261 (Ind. Ct. App. 2012) (citing French v. State, 778

       N.E.2d 816, 824 (Ind. 2002)), trans. denied.              However, “[i]f we can easily

       dismiss an ineffective assistance claim based upon the prejudice prong, we may

       do so without addressing whether counsel’s performance was deficient.” Baer v.

       State, 942 N.E.2d 80, 91 (Ind. 2011), reh’g denied. “Indeed, most ineffective

       assistance of counsel claims can be resolved by a prejudice inquiry alone.”

       French, 778 N.E.2d at 824.


       A. Ineffective Assistance of Trial Counsel

[41]   Crittenden argues that his trial counsel was ineffective for the following: (1)

       failing to file a motion to dismiss the charging information because it lacked a

       file stamp; (2) failing to sufficiently investigate his case and to present witnesses

       and evidence at trial, including evidence of prior DCS reports; (3) failing to

       advise him regarding his chances at trial and the benefits of accepting a plea

       offer; (4) failing to properly cross-examine the child victim and the forensic

       child interviewer at the pretrial child-hearsay hearing; and (5) failing to object to




       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 21 of 38
       the admissibility of the victim’s medical exam and entering into a stipulation

       regarding the examining nurse’s testimony.9


[42]   Before addressing Crittenden’s claims, we note that:


                  There is a strong presumption that counsel rendered adequate
                  assistance and made all significant decisions in the exercise of
                  reasonable professional judgment. Counsel is afforded
                  considerable discretion in choosing strategy and tactics, and these
                  decisions are entitled to deferential review. Isolated mistakes,
                  poor strategy, inexperience, and instances of bad judgment do
                  not necessarily render representation ineffective.


       Stevens v. State, 770 N.E.2d 739, 746-47 (Ind. 2002) (internal citations omitted),

       reh’g denied, cert. denied. “Few points of law are as clearly established as the

       principle that ‘[t]actical or strategic decisions will not support a claim of

       ineffective assistance.’” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)

       (quoting Sparks v. State, 499 N.E.2d 738, 739 (Ind. 1986)), reh’g denied.


                                                 1. Motion to Dismiss

[43]   Crittenden asserts that his trial counsel was ineffective for failing to file a

       motion to dismiss the charging information based on it not containing a file

       stamp.


[44]   To prevail on a claim of ineffective assistance due to the failure to file a motion

       to dismiss, “the defendant must show a reasonable probability that the motion



       9
           We have consolidated some of Crittenden’s ineffective assistance claims but will address each claim.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015               Page 22 of 38
       to dismiss would have been granted if made.” Garrett v. State, 992 N.E.2d 710,

       723 (Ind. 2013).


[45]   In its findings and conclusions, the post-conviction court pointed out that the

       charging information is “reflected on the clerk’s chronological case summary in

       the list of case pleadings filed” and “also reflected in the court’s minutes.” (P-

       CR App. 381-82). The post-conviction court also determined that, even if

       Crittenden’s trial counsel would have directed the trial court’s attention to the

       lack of a file stamp, the court could “have properly ordered a nunc pro tunc

       entry to correct the clerical error,” and, as a result, the post-conviction court

       concluded that Crittenden had failed to prove any prejudice. (P-CR App. 382).


[46]   We agree with the post-conviction court and conclude that Crittenden has

       failed to prove that he was prejudiced by his counsel’s failure to file a motion to

       dismiss the charging information. See Owens v. State, 333 N.E.2d 745 (Ind.

       1975) (“A trial court has the power and a duty to order a nunc pro tunc entry to

       correct . . . a clerical error” such as an indictment without a file stamp); Emmons

       v. State, 847 N.E.2d 1035, 1037-39 (Ind. Ct. App. 2006) (relying on Owens and

       noting that—in a case where a charging information does not contain a file

       stamp—the “better course of action” would be to have “a nunc pro tunc entry

       to show the filing of the information”). Accordingly, Crittenden has failed to

       persuade us that the evidence as a whole leads unerringly and unmistakably to a

       decision opposite that reached by the post-conviction court.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 23 of 38
                                  2. Investigation/Witnesses/Evidence

[47]   Crittenden next contends that his trial counsel rendered ineffective assistance

       because he failed to sufficiently investigate his case; failed to call any witnesses

       on his behalf; and failed to present any evidence, including evidence of the DCS

       reports, at trial.


[48]   Turning to Crittenden’s argument regarding the failure to investigate, we note

       that “[w]hen deciding a claim of ineffective assistance for failure to investigate,

       we apply a great deal of deference to counsel’s judgments.” Boesch v. State, 778

       N.E.2d 1276, 1283 (Ind. 2002) (citing Strickland, 466 U.S. at 691), reh’g denied.

       “[E]stablishing failure to investigate as a ground for ineffective assistance of

       counsel requires going beyond the trial record to show what investigation, if

       undertaken, would have produced.” McKnight v. State, 1 N.E.3d 193, 201 (Ind.

       Ct. App. 2013) (citing Woods v. State, 701 N.E.2d 1208, 1214 (Ind. 1998), cert.

       denied). The petitioner must also show “how that additional information would

       have aided in the preparation of the case.” Turner v. State, 974 N.E.2d 575, 585

       (Ind. Ct. App. 2012) (citing Coleman v. State, 694 N.E.2d 269, 274 (Ind. 1998)),

       trans. denied. “This is necessary because success on the prejudice prong of an

       ineffectiveness claim requires a showing of a reasonable probability of affecting

       the result.” McKnight, 1 N.E.3d at 201.


[49]   Crittenden asserts that his trial counsel should have investigated the DCS

       reports by deposing the family case managers who wrote the reports.

       Crittenden contends that if his trial counsel would have fully investigated the

       DCS report from April 2008 then he would have seen that the report—which

       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 24 of 38
       was based on an investigation of the lack of food, shelter, and clothing in the

       home—contained a statement that D.M. denied any abuse in the home at that

       time. Crittenden also argues that his trial counsel was ineffective for failing to

       introduce the April 2008 and May 2008 DCS reports into evidence during the

       bench trial.


[50]   During the post-conviction hearing, Crittenden’s trial counsel testified that he

       had reviewed the DCS reports before trial. He further testified that he did not

       specifically recall what his thinking or strategy was at the time of trial regarding

       the reports but that, when looking at them at the post-conviction hearing, he

       was able to speculate as to his strategy regarding the reports. Trial counsel

       testified that he would not have offered evidence of the May 2008 report

       because it “would have likely convinced the Judge [during the bench trial that

       Crittenden was] guilty as opposed to anything that was exculpatory” and

       because it was a repetition of what the victim had told the detective and the

       forensic child interviewer. (P-CR Tr. 84). Crittenden’s trial counsel testified

       that he would not have admitted the April 2008 report because it related to

       conduct not charged in Crittenden’s case and that it would not have been

       relevant. Additionally, counsel testified that he would not have deposed a DCS

       case managers because they would have just repeated what was in the reports

       and because “their testimony would have tended towards proving the State’s

       case as opposed to anything exculpatory.” (P-CR Tr. 62-63).


[51]   Because trial counsel’s decision to not further investigate the DCS reports by

       deposing the case manager and his decision to not introduce them into evidence

       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 25 of 38
       was a reasonable strategic decision, Crittenden has failed to show that his trial

       counsel’s performance was deficient. See Rondon v. State, 711 N.E.2d 506, 518

       (Ind. 1999) (holding that “trial counsel’s decision to put the State to its burden

       without conducting an investigation to discover information beyond what the

       State had supplied through discovery was reasonable under the

       circumstances”). Moreover, Crittenden has failed to demonstrate that there is a

       reasonable probability that, but for his trial counsel’s alleged errors, the result of

       the proceeding would have been different. Thus, the post-conviction court did

       not err by denying post-conviction relief on Crittenden’s claims relating to the

       DCS reports.


[52]   Crittenden also argues that his counsel should have investigated other

       occupants of the houses where D.M. lived to see if they could have possibly

       disclaimed D.M.’s allegation of abuse by Crittenden. During the post-

       conviction hearing, Crittenden’s trial counsel testified that he “would have

       investigated every avenue to attempt to defend” Crittenden and that he

       “investigated all the various leads that were open to pursue.” (P-CR Tr. 64,

       70). Additionally, Crittenden offered no evidence during the post-conviction

       hearing to show what an investigation of these occupants, if undertaken, would

       have produced or how that additional information would have aided in the

       preparation of the case. Because he has made no showing that there was a

       reasonable probability that the outcome of his case would likely have been

       different had counsel further investigated the occupants, the post-conviction

       court did not err by denying post-conviction relief on these claims.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 26 of 38
[53]   In regard to witnesses, Crittenden argues that his counsel should have called the

       following as witnesses: (1) D.M.’s mother to testify that she did not believe that

       Crittenden had inappropriately touched D.M.; (2) D.M.’s teachers to see if

       D.M. had ever reported abuse to them; and (3) character witnesses to testify

       that Crittenden had never molested any other children.


[54]   “A decision regarding what witnesses to call is a matter of trial strategy which

       an appellate court will not second-guess[.]” Brown v. State, 691 N.E.2d 438, 447

       (Ind. 1998). “When ineffective assistance of counsel is alleged and premised on

       the attorney’s failure to present witnesses, it is incumbent upon the petitioner to

       offer evidence as to who the witnesses were and what their testimony would

       have been.” Lowery v. State, 640 N.E.2d 1031, 1047 (Ind. 1994), reh’g denied,

       cert. denied.


[55]   We need not determine whether trial counsel’s decision not to call witnesses

       was a reasonable trial strategy because Crittenden has failed to meet his post-

       conviction relief burden on this ineffective assistance claim. Crittenden did not

       offer any affidavits from these proposed witnesses or any other evidence to

       show what these witnesses’ testimony would have been; thus, he has failed to

       meet his burden on this claim. See Lowery, 640 N.E.2d at 1047. As a result, he

       has failed to show that the post-conviction court erred by denying relief on this

       claim.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 27 of 38
                                                        3. Advice

[56]   Next, Crittenden argues that the post-conviction court erred by denying him

       relief on his claim that his trial counsel was ineffective for failing to advise him

       regarding his chances at trial and the benefits of accepting a plea offer.

       Crittenden asserts that his trial counsel erroneously allowed him to reject a plea

       offer and failed to advise him that he could be convicted based on the testimony

       of the child victim.


[57]   The record before us does not support Crittenden’s assertions. During

       Crittenden’s sentencing hearing, his trial counsel informed the trial court that he

       had discussed these issues with Crittenden.10 Specifically, his trial counsel

       stated:

                 And Judge, I feel compelled to make at least a very minimal
                 record so that the Court’s [sic] aware and Mr. Crittenden may
                 not recall the entirety of our conversation but I did have some
                 other folks there with me as we were discussing it and I
                 remember distinctly assuring him that the Court could convict
                 just as easily acquit and we discussed in detail when plea
                 negotiations were ongoing what he was facing if convicted and
                 what was offered by the State and I know sitting here now
                 [Crittenden] probably feels like more time could have been spent
                 explaining it to him but I made sure before we signed that
                 document that I was satisfied he was clear and I thought he was
                 clear minded that day and I thought he understood the nature of
                 the circumstances, so, if that has changed I can only base my



       10
          Crittenden’s trial counsel made a record during sentencing because Crittenden had complained about the
       lack of time to make a decision about a plea, his jury trial waiver, and counsel’s alleged promise of a positive
       trial outcome.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015                Page 28 of 38
               recollection on what I remember and what I told him and I
               remember distinctly warning him of all the possible outcomes.
                                                     *****
               Because a plea was offered that morning that I advised him to
               consider with a high level of consideration.


       (Tr. 146-47).


[58]   Furthermore, during the post-conviction hearing, Crittenden’s trial counsel

       testified that, prior to trial, he had consulted with Crittenden regarding the

       possibility of a plea agreement and testified that he would have conveyed any

       plea offer to him. Additionally, his trial counsel testified that he consulted with

       Crittenden and informed him of what kind of evidence could be used against

       him.


[59]   Other than Crittenden’s self-serving testimony during the post-conviction

       hearing, he did not present any evidence that his trial counsel engaged in the

       behavior that he alleged. Accordingly, he has failed to show that the post-

       conviction court erred by denying his ineffective assistance claim.


                                            4. Cross-Examination

[60]   Crittenden also argues that his trial counsel was ineffective for failing to cross-

       examine D.M. and failing to sufficiently cross-examine the forensic child

       interviewer during the child-hearsay hearing.


[61]   “‘It is well settled that the nature and extent of cross-examination is a matter of

       strategy delegated to trial counsel.’” Waldon v. State, 684 N.E.2d 206, 208 (Ind.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 29 of 38
       Ct. App. 1997) (citing Osborne v. State, 481 N.E.2d 376, 380 (Ind. 1985)), trans.

       denied.


[62]   In regard to Crittenden’s first ineffective assistance claim regarding cross-

       examination, he contends that his trial counsel was ineffective because his

       counsel failed to cross-examine D.M. during the pretrial child-hearsay hearing

       and challenge her credibility. The post-conviction court noted that while

       Crittenden’s trial counsel did not cross-examine D.M. during the child-hearsay

       hearing, he had cross-examined D.M. during the bench trial. The post-

       conviction court also noted that, at the end of Crittenden’s bench trial, the trial

       court specifically clarified that its verdict was based solely on the victim’s trial

       testimony and not on any other statements she had made to others. The post-

       conviction court determined that, as a result, Crittenden had failed to show any

       prejudice from his trial counsel’s decision not to cross-examine D.M. during the

       child-hearsay hearing.


[63]   Our review of the record supports the post-conviction court’s determination.

       Furthermore, Crittenden did not present evidence during the post-conviction

       hearing to show what favorable testimony, if any, would have been elicited

       from such a cross-examination and how it would have affected the outcome of

       his trial. Thus, the post-conviction’s court conclusion that Crittenden had failed

       to meet his burden of showing prejudice is further supported. See Fine v. State,

       490 N.E.2d 305, 309 (Ind. 1986) (holding that there was no showing of

       prejudice by counsel’s failure to cross-examine “key state’s witnesses” when the

       defendant failed to establish that counsel could have elicited favorable

       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 30 of 38
       testimony); Waldon, 684 N.E.2d at 208-09 (holding that the defendant had

       failed to show that he was prejudiced by trial counsel’s failure to cross-examine

       a witness).


[64]   In regard to Crittenden’s claim that his counsel was ineffective for not properly

       cross-examining the forensic child interviewer, Crittenden merely asserts in his

       appellate brief that his counsel’s cross-examination was ineffective and that he

       was prejudiced, and he then refers us to his post-conviction memorandum filed

       with the post-conviction court in an attempt to have us incorporate his

       previously-made argument. Our Court, however, has explained that “a party

       may not present an argument entirely by incorporating by reference from a

       source outside the appellate briefs.” Bigler v. State, 732 N.E.2d 191, 197 (Ind.

       Ct. App. 2000), trans. denied. “We [have] explained that briefs should be

       prepared ‘so that each judge, considering the brief alone and independent of the

       transcript, can intelligently consider each question presented.’” Id. (quoting

       Pluard v. Patients Compensation Fund, 705 N.E.2d 1035, 1038 (Ind. Ct. App.

       1999), trans. denied). Because Crittenden has failed to make an independent

       argument in his appellate brief, he has waived this argument. See id.


                                   5. Medical Exam/Nurse’s Statement

[65]   Crittenden asserts that he received ineffective assistance of trial counsel because

       his counsel did not object to the admissibility of the victim’s medical exam and

       because he entered into a stipulation regarding the examining nurse’s

       testimony.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 31 of 38
[66]   To demonstrate ineffective assistance of counsel for failure to object, a

       defendant must prove that an objection would have been sustained if made and

       that he was prejudiced by counsel’s failure to make an objection. Wrinkles v.

       State, 749 N.E.2d 1179, 1192 (Ind. 2001), cert. denied.


[67]   During Crittenden’s bench trial, his trial counsel and the State entered into a

       stipulation regarding the testimony of the nurse who examined D.M. and

       regarding the admissibility of the corresponding medical records. 11 They

       stipulated that the nurse “examined” D.M. and that D.M. “did not have any

       injuries to her genitalia which neither confirm[ed] nor negate[d] the allegations

       of sexual abuse.” (Tr. 118). Because his counsel stipulated to the admission of

       the medical records, Crittenden cannot show that an objection to those records

       would have been sustained. Thus, he cannot show that his counsel rendered

       ineffective assistance by failing to object to the medical records.


[68]   In regard to his argument regarding counsel’s stipulation to the nurse’s

       testimony, Crittenden contends that his counsel was ineffective because he did

       not present live testimony from her and cross-examine her. This argument also

       fails. Crittenden’s trial counsel testified during the post-conviction hearing that

       a stipulation of the nurse’s testimony was the equivalent of a “very positive

       outcome of any cross-examination.” (P-CR Tr. 96). Crittenden, however, did

       not present any evidence during the post-conviction hearing to show how



       11
         The record reveals that the nurse had a scheduling issue and was not available to testify on the morning of
       the bench trial.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015             Page 32 of 38
       counsel’s decision to stipulate to the nurse’s testimony constituted deficient

       performance. Nor did Crittenden present any evidence of specific testimony

       that would have resulted from calling the nurse as a witness and how it would

       have affected the outcome of his trial. Therefore, he has failed to meet his

       burden of showing that the post-conviction court erred by denying post-

       conviction relief on this ineffective counsel claim.


       B. Ineffective Assistance of Appellate Counsel

[69]   Lastly, Crittenden contends that the post-conviction court erred by denying him

       post-conviction relief on his ineffective assistance of appellate counsel claims.

       Ineffective assistance of appellate counsel claims “‘generally fall into three basic

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

       to present issues well.’” Garrett v. State, 992 N.E.2d 710, 724 (Ind. 2013)

       (quoting Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006)). Crittenden argues

       that his appellate counsel rendered ineffective assistance because he failed to

       raise a challenge to the sufficiency of the evidence and because he failed to

       “sufficiently argue” the “meritorious issue” of territorial jurisdiction on appeal.

       (Crittenden’s Br. 43). Thus, his ineffective assistance of appellate counsel

       claims are based upon categories (2) and (3).


                                               1. Waiver of Issue


[70]   Turning to Crittenden’s argument regarding appellate counsel’s waiver of an

       issue challenging the sufficiency of the evidence, we note that “[t]o show that

       counsel was ineffective for failing to raise an issue on appeal thus resulting in


       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 33 of 38
       waiver for collateral review, ‘the defendant must overcome the strongest

       presumption of adequate assistance, and judicial scrutiny is highly deferential.’”

       Garrett, 992 N.E.2d at 724 (quoting Ben–Yisrayl v. State, 738 N.E.2d 253, 260-61

       (Ind. 2000), reh’g denied, cert. denied). Our Indiana Supreme Court has explained

       the “need” for a reviewing court to be deferential to appellate counsel when

       considering whether counsel was ineffective for failing to raise an issue on

       direct appeal:


               [T]he reviewing court should 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.


       Timberlake v. State, 753 N.E.2d 591, 605-06 (Ind. 2001) (quoting Bieghler v. State,

       690 N.E.2d 188, 194 (Ind. 1997), reh’g denied, cert. denied), reh’g denied, cert.

       denied. “Ineffective assistance is very rarely found in cases where a defendant

       asserts that appellate counsel failed to raise an issue on direct appeal.” Reed,

       856 N.E.2d at 1196. This is because “‘the decision of what issues to raise is one

       of the most strategic decisions to be made by appellate counsel.’” Wrinkles, 749

       N.E.2d at 1203 (quoting Bieghler, 690 N.E.2d at 193).


[71]   “To evaluate the performance prong when counsel waived 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.” Garrett, 992 N.E.2d at 724 (quoting

       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 34 of 38
       Timberlake, 753 N.E.2d at 605-06). “If the analysis under this test demonstrates

       deficient performance, then we evaluate the prejudice prong which requires an

       examination of 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.’” Garrett, 992 N.E.2d at 724 (quoting Bieghler, 690 N.E.2d at 194).


[72]   Crittenden contends that appellate counsel was ineffective for failing to

       challenge the sufficiency of the evidence to support his convictions for Class A

       and Class C felony child molesting because the evidence against him was based

       on D.M’s testimony and not any physical evidence. Crittenden contends that

       the sufficiency issue was a stronger issue because “it is apparent from the face of

       the record[] that the evidence was insufficient to sustain the judge[‘]s verdict of

       guilt” on his two child molesting convictions.


[73]   During the post-conviction hearing, however, Crittenden’s appellate counsel’s

       testimony showed otherwise. Appellate counsel testified that he reviewed the

       transcripts of the hearings, trial, and sentencing and that he tried to raise the

       strongest issue. He testified that he did not raise a sufficiency issue because it

       would not have been stronger than the territorial jurisdiction issue. Counsel

       also testified that there was “direct testimony from the victim” and that he

       thought it was “sufficient evidence to support the finding of guilt.” (P-CR Tr.

       12, 13).


[74]   In regard to this claim, the post-conviction court concluded that:




       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 35 of 38
               Crittenden had little chance of success in arguing on appeal that
               the evidence was insufficient to establish his child molesting
               convictions. D.M.’s testimony supported the convictions for A-
               Felony and C-felony child molesting. See T.R. 64, 66-68
               (Crittenden pulled her pajama bottoms and panties off and
               touched her inside of her bottom with his “stuff” [previously
               identified as his “private” or the body part boys use to go to the
               bathroom], that he was moving and shaking, that it hurt, and that
               D.M. “told him it hurted”); T.R. 65 (Crittenden touched her on
               the inside of her private or “pee pot” and his hand was moving,
               not still).
                                                     *****
               Petitioner has failed to prove that it was unquestionably
               unreasonable for appellate counsel not to raise this as a claim on
               appeal. Nor does Petitioner provide any legal authority to show
               a reasonable probability that such a claim would have been
               successful if raised or would have been stronger than the claim
               raised. With no proof of deficient performance or prejudice, this
               claim fails.


       (P-CR App. 394, 395) (brackets in original).


[75]   In support of Crittenden’s argument, he again attempts to incorporate the

       argument he made below to the post-conviction court. (See Crittenden’s Br. 44)

       (directing us to “See entire argument in support of the fact that the evidence

       was not sufficient to support the guilty verdict of the judge. (App. at 265-271)”)

       (boldface removed). As explained above, “a party may not present an

       argument entirely by incorporating by reference from a source outside the

       appellate briefs.” Bigler, 732 N.E.2d at 197. Thus, he has waived review of this

       claim. See id. Waiver notwithstanding, our review of the record supports the

       post-conviction court’s ruling denying post-conviction relief on this claim as
       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 36 of 38
       Crittenden failed to “overcome the strongest presumption of adequate

       assistance.” Garrett, 992 N.E.2d at 724.


                                      2. Failure to Present Issue Well


[76]   Lastly, we turn to Crittenden’s claim that his counsel was ineffective for failing

       to sufficiently argue the territorial jurisdiction issue on appeal.


[77]   “[C]laims of inadequate presentation of certain issues, as contrasted with the

       denial of access to an appeal or waiver of issues, are the most difficult for

       defendants to advance and for reviewing tribunals to support.” Hollowell v.

       State, 19 N.E.3d 263, 270 (Ind. 2014) (citing Bieghler, 690 N.E.2d at 195).

       “[T]his is so because such claims essentially require the reviewing court to

       reexamine and take another look at specific issues it has already adjudicated to

       determine ‘whether the new record citations, case references, or arguments

       would have had any marginal effect on their previous decision.’” Id. (quoting

       Bieghler, 690 N.E.2d at 195)) (emphasis added by Hollowell Court).


[78]   In regard to this claim, the post-conviction court stated that Crittenden did

       “little to explain this less than cogent claim.” (P-CR App. 393). The post-

       conviction court found that “[w]hen considered in light of the requisite highest

       deference to appellate counsel’s performance, Crittenden’s claim here [was]

       unsupported and ma[d]e[] no sense.” (P-CR App. 393). As a result, it

       concluded that Crittenden has failed to establish that appellate counsel was

       ineffective.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 37 of 38
[79]   On appeal, as below, Crittenden fails to present a cogent argument. Thus, he

       has waived this argument. See Johnson, 832 N.E.2d at 1006 (holding that

       petitioner had waived claims of ineffective assistance of appellate counsel by

       failing to make a cogent argument). He has also waived review of the argument

       because he, once again, tries to incorporate his argument made below during

       the post-conviction proceedings. See Bigler, 732 N.E.2d at 197. Waivers

       notwithstanding, Crittenden has failed to show either deficient performance or

       prejudice in regard to this claim. Accordingly, he has failed to meet his burden

       of showing that the post-conviction court erred by denying relief on this claim.


[80]   Affirmed.


       Barnes, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015   Page 38 of 38
