MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    FILED
court except for the purpose of establishing                            Nov 13 2017, 9:04 am

the defense of res judicata, collateral                                      CLERK
                                                                         Indiana Supreme Court
estoppel, or the law of the case.                                           Court of Appeals
                                                                              and Tax Court




APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Michael Kopp                                            Curtis T. Hill, Jr.
Pendleton, Indiana                                      Attorney General of Indiana

                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Kopp,                                           November 13, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1701-PC-146
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Stanley Kroh,
Appellee-Plaintiff                                      Magistrate
                                                        Trial Court Cause No.
                                                        49G03-1412-PC-054615



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1701-PC-146 | November 13, 2017          Page 1 of 9
[1]   Michael Kopp appeals the post-conviction court’s denial of his petition for post-

      conviction relief. He argues his appellate counsel was ineffective for improperly

      arguing double jeopardy and failing to raise certain issues as part of his direct

      appeal. We affirm.



                               Facts and Procedural History
[2]   The facts of Kopp’s relevant 1 convictions were set forth by our court as part of

      his direct appeal:


               Kopp is the step-father of the victim, L.P. The evidence at trial
               shows that Kopp molested his victim in numerous ways during
               his marriage to the victim’s mother.


               Count I of the charging information alleges that Kopp molested
               L.P. on or between May 1, 1998 to August 31, 1998. Count II of
               the charging information alleges that Kopp molested L.P. on or
               about September 1, 1998, to January 17, 1999.


      Kopp v. State, 867 N.E.2d 288 at *1 (Ind. Ct. App. May 24, 2007). The trial

      court sentenced Kopp to an aggregate sentence of sixty years, with forty years

      executed, twenty years suspended, and ten years of probation.




      1
        The trial court also convicted Kopp of Class D felony child seduction, but he did not challenge that
      conviction as part of his direct appeal or in the current appeal of the denial of his request for post-conviction
      relief.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1701-PC-146 | November 13, 2017                Page 2 of 9
[3]   On direct appeal, Kopp argued his convictions for two counts of Class A felony

      child molesting violated the continuing crime doctrine 2 and his right to be free

      from double jeopardy based on the actual evidence test. 3 We affirmed Kopp’s

      convictions. Regarding his first argument, we held:


                 Kopp’s acts do not constitute a continuing criminal transaction.
                 They were not compressed in time or continuity of action. The
                 victim’s testimony established that Kopp molested her on a
                 regular basis over a period of time that began during the summer
                 between the victim’s seventh and eighth grades and continued
                 through her junior year of high school.


      Id. Regarding his second argument, we concluded,


                 the Kopp jury heard testimony from the victim from which it
                 could find or infer that a molestation occurred during the time
                 frame specified in the first count and the jury heard separate
                 testimony from which it could find or infer that an additional
                 molestation occurred during the time frame specified in the
                 second count.




      2
        The continuing crime doctrine states that “actions that are sufficient in themselves to constitute separate
      criminal offenses may be so compressed in terms of time, place, singleness of purpose, and continuity of
      action as to constitute a single transaction.” Riehle v. State, 823 N.E.2d 287, 296 (Ind. Ct. App. 2005), trans.
      denied.
      3
          Under the actual evidence test,

                 the actual evidence presented at trial is examined to determine whether each challenged
                 offense was established by separate and distinct facts. To show that two challenged
                 offenses constitute the ‘same offense’ in a claim of double jeopardy, a defendant must
                 demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to
                 establish the essential elements of one offense may also have been used to establish the
                 essential elements of a second challenged offense.
      Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1701-PC-146 | November 13, 2017                 Page 3 of 9
      Id. at *2.


[4]   On July 28, 2011, Kopp filed a petition for post-conviction relief. He withdrew

      that petition on March 1, 2013, and refiled a petition for post-conviction relief

      on December 11, 2014. In the refiled petition, he alleged his appellate counsel

      was ineffective for a variety of reasons. The post-conviction court held a

      hearing on the matter on July 21, 2015, during which Kopp’s appellate counsel,

      Taffanee Keys, testified. On January 3, 2017, the post-conviction court denied

      Kopp’s petition for post-conviction relief.



                                Discussion and Decision
[5]   We first note Kopp proceeds pro se. A litigant who proceeds pro se is held to the

      same rules of procedure that trained counsel is bound to follow. Smith v.

      Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert. dismissed,

      558 U.S. 1074 (2009). One risk a litigant takes when he proceeds pro se is that

      he will not know how to accomplish all the things an attorney would know how

      to accomplish. Id. When a party elects to represent himself, there is no reason

      for us to indulge in any benevolent presumption on his behalf or to waive any

      rule for the orderly and proper conduct of his appeal. Foley v. Mannor, 844

      N.E.2d 494, 502 (Ind. Ct. App. 2006).


[6]   Post-conviction proceedings 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), reh’g denied, cert. denied, 537 U.S. 1122


      Court of Appeals of Indiana | Memorandum Decision 49A02-1701-PC-146 | November 13, 2017   Page 4 of 9
      (2003). As post-conviction proceedings are civil in nature, the petitioner must

      prove his grounds for relief by a preponderance of the evidence. Id. A party

      appealing a post-conviction judgment must establish that the evidence is

      without conflict and, as a whole, unmistakably and unerringly points to a

      conclusion contrary to that reached by the post-conviction court. Id. 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 do not defer to the

      court’s legal conclusions, but “the findings and judgment will be reversed only

      upon a showing of clear error—that which leaves us with a definite and firm

      conviction that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d 102,

      106 (Ind. 2000) (internal quotation and citation omitted), reh’g denied, cert.

      denied, 534 U.S. 830 (2001).


[7]   We review claims of ineffective assistance of appellate counsel using the same

      standard applicable to claims of trial counsel ineffectiveness. Fisher v. State, 810

      N.E.2d 674, 676-7 (Ind. 2004). The defendant must show that appellate

      counsel was deficient in his performance and that the deficiency resulted in

      prejudice. Id. at 677. A claim of ineffective appellate assistance generally falls

      into one of three categories: (1) denial of access to an appeal; (2) waiver of

      issues; or (3) failure to present issues well. Id. We employ a two-part test to

      evaluate “waiver of issue” claims: (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.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1701-PC-146 | November 13, 2017   Page 5 of 9
[8]    Because counsel has considerable discretion in choosing strategy and tactics, we

       presume counsel’s assistance was adequate and all significant decisions were

       made in the exercise of reasonable professional judgment. State v. Miller, 771

       N.E.2d 1284, 1288 (Ind. Ct. App. 2002), reh’g denied, trans. denied. One of the

       most important strategic decisions is deciding what issues to raise on appeal.

       Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1998), reh’g denied, cert. denied, 525

       U.S. 1021 (1998). Appellate counsel is not ineffective for declining to present a

       claim that had no merit. Stowers v. State, 657 N.E.2d 194, 200 (Ind. Ct. App.

       1995), trans. denied.


[9]    Kopp argues his appellate counsel, Keys, was ineffective because she

       erroneously advanced the argument Kopp’s two convictions of Class A felony

       child molest constituted a violation of the continuing crime doctrine instead of

       arguing the evidence was insufficient to support his conviction. Kopp contends

       Keys should have argued the State did not present sufficient evidence he

       molested L.P. between September 1, 1998, and January 17, 1999, as alleged in

       Count II. He claims his “double jeopardy claim is more likened to sufficiency

       of the evidence while Keys[’] double jeopardy claim is likened to [the]

       continuing crime doctrine.” (Br. of Appellant at 9.)


[10]   Our Indiana Supreme Court explained in Bieghler:


               Claims of inadequate presentation of certain issues, when such
               were not deemed waived in the direct appeal, are the most
               difficult for convicts to advance and reviewing tribunals to
               support. . . .


       Court of Appeals of Indiana | Memorandum Decision 49A02-1701-PC-146 | November 13, 2017   Page 6 of 9
               First, these claims essentially require the reviewing tribunal to re-
               view 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.
               Thus, this kind of ineffectiveness claim, as compared to the
               others mentioned, most implicates concerns of finality, judicial
               economy, and repose while least affecting assurance of a valid
               conviction.


               Second, an Indiana appellate court is not limited in its review of
               issues to the facts and cases cited and arguments made by the
               appellant’s counsel. We commonly review relevant portions of
               the record, perform separate legal research, and often decide
               cases based on legal arguments and reasoning not advanced by
               either party. . . .


               For these reasons, an ineffectiveness challenge resting on
               counsel’s presentation of a claim must overcome the strongest
               presumption of adequate assistance. Judicial scrutiny of
               counsel’s performance, already “highly deferential,” Spranger v.
               State, 650 N.E.2d 1117, 1121 (Ind. 1995), is properly at its
               highest. Relief is only appropriate when the appellate court is
               confident it would have ruled differently.


       690 N.E.2d at 195-6.


[11]   Kopp does not offer argument regarding why the continuing crime doctrine

       argument was incorrectly presented, only that he would have instead advanced

       a sufficiency of the evidence argument. In our opinion on direct appeal, we

       held “[L.P.’s] testimony established that Kopp molested her on a regular basis

       over a period of time that began during the summer between the victim’s

       seventh and eighth grades and continued through her junior year of high

       Court of Appeals of Indiana | Memorandum Decision 49A02-1701-PC-146 | November 13, 2017   Page 7 of 9
       school.” Kopp, 867 N.E.2d 288 at *1. As we do not reweigh the evidence or

       judge the credibility of witnesses, Drane v. State, 867 N.E.2d 144, 146 (Ind.

       2007), Kopp’s insufficiency of the evidence claim would not have been

       successful. See Bieghler, 690 N.E.2d at 196 (“Relief is only appropriate when the

       appellate court is confident it would have ruled differently.”). Thus, Kopp has

       not demonstrated his appellate counsel was ineffective for raising an argument

       regarding the continuing crime doctrine instead of arguing the State did not

       present sufficient evidence he committed Class A felony child molesting. See

       Stowers, 657 N.E.2d at 200 (appellate counsel is not ineffective for declining to

       present a claim that would have been meritless).


[12]   Kopp also argues his appellate counsel was ineffective because she did not

       argue the trial court abused its discretion when it denied his motion for directed

       verdict. After the State’s presentation of evidence, Kopp moved for a directed

       verdict because he claimed the State failed to present evidence he was over

       twenty-one years old at the time of the offenses as required by the elements of

       Class A felony child molesting. “In order for a trial court to appropriately grant

       a motion for a directed verdict, there must be a total lack of evidence regarding

       an essential element of the crime[.]” McClendon v. State, 910 N.E.2d 826, 836

       (Ind. Ct. App. 2009), trans. denied.


[13]   Here, the trial court stated, when it denied Kopp’s motion for directed verdict

       on the child molest charges, “I am going to deny the motion, based on the facts

       in the record right now are that there was a marriage and a date of 1995, as well

       as employment as a -- of -- as a firefighter.” (Trial Tr. at 87.) Kopp

       Court of Appeals of Indiana | Memorandum Decision 49A02-1701-PC-146 | November 13, 2017   Page 8 of 9
       subsequently admitted during direct examination to being over twenty-one

       years old at the time of the alleged crimes.


[14]   Kopp argues on appeal that there was nothing in the record to suggest the State

       presented evidence about “how old Kopp was when he married in 1995 nor that

       he was a paid fire fighter rather than a young volunteer fireman.” (Br. of

       Appellant at 12.) However, Kopp has not demonstrated this issue would have

       been stronger than the issues raised. See Fisher, 810 N.E.2d at 677 (appellate

       counsel is ineffective for failing to raise an issue if the issue is significant and

       obvious from the record and the issue is clearly stronger than others argued on

       direct appeal). Thus, he has not demonstrated his appellate counsel was

       ineffective for declining to raise it.



                                               Conclusion
[15]   Kopp has not demonstrated his appellate counsel was ineffective for choosing

       the issues presented in his direct appeal instead of the issues he thought were

       more appropriate. Accordingly, we affirm.


[16]   Affirmed.


       Barnes, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1701-PC-146 | November 13, 2017   Page 9 of 9
