MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   Oct 22 2015, 6:17 am
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
Jeffrey E. Akard                                         Gregory F. Zoeller
Marion, Illinois                                         Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey E. Akard,                                        October 22, 2015
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         79A05-1411-PC-553
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Thomas H. Busch,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         79D02-1101-PC-1



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015         Page 1 of 40
[1]   Over the course of approximately eighteen or nineteen hours beginning on

      September 9, 2006, Appellant-Petitioner Jeffrey E. Akard brutally raped and

      battered A.A. while confining her in his Lafayette apartment. Following a

      three-day jury trial, Akard was convicted of two counts of Class A felony rape

      and Class A felony criminal deviate conduct, one count of Class B felony rape

      and Class B felony criminal deviate conduct, two counts of Class B felony

      criminal confinement, and two counts of Class C felony battery. The trial court

      imposed an aggregate ninety-three-year sentence. Akard’s convictions were

      affirmed on direct appeal. This court modified Akard’s sentence to an

      aggregate term of 118 years. The Indiana Supreme Court, however,

      subsequently modified Akard’s sentence to an aggregate term of ninety-four

      years.


[2]   Akard filed a petition for post-conviction relief (“PCR”) in January of 2011.

      On October 30, 2014, the post-conviction court issued an order denying

      Akard’s petition. Akard then appealed, arguing that the post-conviction court

      erroneously found that he did not receive ineffective assistance of trial or

      appellate counsel. Concluding that the post-conviction court did not err in

      determining that Akard failed to prove that he suffered ineffective assistance

      from either his trial or appellate counsel, we affirm.



                            Facts and Procedural History



      Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 2 of 40
[3]   Our opinion in Akard’s prior direct appeal, which was handed down on March

      30, 2010, instructs us as to the underlying facts and procedural history leading

      to this post-conviction appeal:


              In the early hours of September 9, 2006, A.A. was in Lafayette,
              Indiana, and met Akard as he was walking down the street.
              Because he was purportedly drunk, Akard asked A.A. to walk
              him home so that he would not be charged with public
              intoxication, and A.A. obliged. After a fifteen minute walk, the
              two arrived at Akard’s house at approximately 2:15 a.m., and
              A.A. went into the house so that she could use the bathroom.
              Once inside, Akard used a key to lock the deadbolt. The two
              then sat down on the couch and started a conversation, which
              included A.A. telling Akard that she was currently homeless and
              without any money. The topic eventually turned to Akard
              offering A.A. $150 for a “head job.” Trial transcript at 67. A.A.
              agreed and proceeded to perform an act of oral sex on Akard.
              During the act, Akard grabbed A.A.’s head and forced her onto
              him to the point A.A. was choking and had “snot coming out of
              [her] nose.” Tr. at 72. Akard continued to force A.A.’s head
              back and forth until he lifted her up and told her that “today was
              the day [she] was gonna die.” Id.

              A.A. repeatedly begged Akard to let her leave, but Akard ordered
              her to the bathroom and proceeded to cut A.A.’s t-shirt and bra
              in order to remove them. Akard then ordered A.A. to remove
              her pants and go into the bedroom. Despite A.A.’s repeated
              pleas to leave, Akard told her that she could not leave. Once in
              the bedroom, Akard said that he had “a toy” for A.A., reached
              under the bed, and then used a taser gun on A.A.’s back and
              heart area approximately five times. Tr. at 81. When A.A.
              began to scream, Akard reached under the bed for his handgun
              and held it to A.A.’s head.

              A.A. then sat on the bed while Akard handcuffed her arms
              behind her back. Akard then forced A.A. to take some pills with

      Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 3 of 40
        Mountain Dew. During the process, A.A. spilled some of the
        Mountain Dew, causing Akard to become upset and hit A.A. in
        the head. Akard then ordered A.A. back to the bathroom where
        Akard undressed and they both entered the shower. While in the
        shower, Akard made A.A. kneel so that he could urinate in her
        mouth. A.A. spit out the urine, which upset Akard. Akard then
        hit A.A., knocking her unconscious.

        When she awoke, she was laying face down on Akard’s bed and
        now had zip ties restraining her ankles. As A.A. faded in and out
        of consciousness, Akard raped her vaginally and anally a total of
        four to five times. To prevent A.A. from screaming, Akard
        placed a golf ball in A.A.’s toothless mouth and then used a sock
        as a gag. While A.A. was bound, Akard used sex toys on both of
        them. At one point, A.A. woke up and noticed stockings on her
        legs that were not hers. During another instance of
        consciousness, A.A. realized that she had a metal, link chain tied
        around her and tied to the door, so that the chain would rattle
        every time she moved.

        At another point when A.A. was only bound in handcuffs, Akard
        called out to A.A. from the living room, telling her to come to
        that room. Akard then showed A.A. “a lot” of pictures of child
        pornography on his laptop. Tr. at 99. During this display, Akard
        said that he had “done plenty” of children. Tr. at 100.

        When A.A. finally woke the next day, she was in the bed and the
        chain was still around her. Pretending not to remember what
        happened, she commented to Akard, “we must have had some
        really kinky sex last night[.]” Tr. at 103. A.A. then indicated
        that she needed to leave immediately because she had to pick up
        her children. Akard responded, “Are we okay?” Id. A.A.
        indicated affirmatively. Akard then told A.A. that she had to
        take a shower before she left, which she did but purposely did not
        use soap.

        Immediately after leaving Akard’s apartment on the afternoon of
        September 9, 2006, A.A. ran to a neighboring house to obtain

Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 4 of 40
        assistance. After A.A. told the neighbor that she was held
        against her will for nineteen hours and displayed her wounds, the
        neighbor called 9-1-1. After police responded and initially
        interviewed A.A., she was taken to the hospital where samples
        were collected for a rape kit analysis and pictures of A.A.’s
        wounds were taken.

        The police obtained a search warrant for Akard’s apartment
        based on A.A.’s statement and executed it early on the morning
        of September 10, 2006. When the officers breached the door,
        Akard was sitting on his couch, viewing pornography on his
        computer while masturbating. Items recovered from the
        apartment search included a set of keys on a key chain including
        a handcuff key, zip ties, a woman’s Old Navy shirt that had been
        cut as well as a bra, a pair of handcuffs, a metal link chain, two
        golf balls and “fairly stretchable” socks, a stun gun, bottles of
        Tylenol, Tylenol PM, Doxycycline, Alprazolam and
        Hydrocodone, A.A.’s identification card and cell phone, a
        collection of sex toys, a BB gun, an air rifle, a handgun, purple
        and orange rope that was tied to the bed frame, blue stockings,
        and a laptop containing approximately 2900 pornographic
        pictures.

        [Appellee-Respondent the State of Indiana (the “State”)] initially
        filed charges against Akard on September 14, 2006, but later filed
        a nolle prosequi motion to dismiss the case without prejudice. The
        motion was granted. On October 1, 2008, the State re-filed
        charges against Akard of three counts of Rape, two as Class A
        felonies and one as a Class B felony, three counts of Criminal
        Deviate Conduct, two as Class A felonies and one as a Class B
        felony, two counts of Criminal Confinement, as Class B felonies,
        and two counts of Battery, as Class C felonies. After a three day
        trial, a jury found Akard guilty as charged. The trial court
        sentenced Akard to an aggregate sentence of ninety-three years.




Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 5 of 40
      Akard v. State, 924 N.E.2d 202, 205-06 (Ind. Ct. App. 2010), aff’d on reh’g, trans.

      granted, aff’d in part, vacated in part, 937 N.E.2d 811 (Ind. 2010). On appeal, we

      affirmed Akard’s convictions but revised his aggregate sentence to 118 years.

      Id. at 212. The Indiana Supreme Court granted transfer and affirmed Akard’s

      convictions and modified Akard’s sentence to ninety-four years. Akard, 937

      N.E.2d at 814.


[4]   On January 26, 2011, Akard filed a pro-se PCR petition. In this petition, Akard

      claimed that he was received ineffective assistance from his trial, appellate, and

      post-conviction counsel. Akard also claimed that newly-discovered evidence

      cast doubt on his convictions. On October 30, 2014, the post-conviction court

      issued an order denying Akard’s petition. This appeal follows.



                                 Discussion and Decision
[5]   Post-conviction procedures do not afford the petitioner with a super-appeal.

      Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a

      narrow remedy for subsequent collateral challenges to convictions, challenges

      which must be based on grounds enumerated in the post-conviction rules. Id.

      A petitioner who has been denied post-conviction relief appeals from a negative

      judgment and as a result, faces a rigorous standard of review on appeal. Dewitt

      v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942

      (Ind. Ct. App. 1999), trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 6 of 40
[6]   Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,

      745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his

      claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);

      Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition,

      a petitioner must convince this court that the evidence, taken as a whole, “leads

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

      court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without

      conflict and leads to but one conclusion, and the post-conviction court has

      reached the opposite conclusion, that its decision will be disturbed as contrary

      to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied.

      The post-conviction court is the sole judge of the weight of the evidence and the

      credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

      We therefore accept the post-conviction court’s findings of fact unless they are

      clearly erroneous but give no deference to its conclusions of law. Id.


                         I. Ineffective Assistance of Counsel
[7]   The right to effective counsel is rooted in the Sixth Amendment to the United

      States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The

      Sixth Amendment recognizes the right to the assistance of counsel because it

      envisions counsel’s playing a role that is critical to the ability of the adversarial

      system to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S.

      668, 685 (1984)). “The benchmark for judging any claim of ineffectiveness

      must be whether counsel’s conduct so undermined the proper function of the



      Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 7 of 40
      adversarial process that the trial court cannot be relied on as having produced a

      just result.” Strickland, 466 U.S. at 686.


[8]   A successful claim for ineffective assistance of counsel must satisfy two

      components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first

      prong, the petitioner must establish that counsel’s performance was deficient by

      demonstrating that counsel’s representation “fell below an objective standard of

      reasonableness, committing errors so serious that the defendant did not have

      the ‘counsel’ guaranteed by the Sixth Amendment.” Id. We recognize that

      even the finest, most experienced criminal defense attorneys may not agree on

      the ideal strategy or most effective way to represent a client, and therefore,

      under this prong, we will assume that counsel performed adequately and defer

      to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585

      (Ind. 2002). Isolated mistakes, poor strategy, inexperience, and instances of

      bad judgment do not necessarily render representation ineffective. Id.


[9]   Under the second prong, the petitioner must show that the deficient

      performance resulted in prejudice. Reed, 866 N.E.2d at 769. Again, a petitioner

      may show prejudice by demonstrating that there is “a reasonable probability

      (i.e. a probability sufficient to undermine confidence in the outcome) that, but

      for counsel’s errors, the result of the proceeding would have been different.” Id.

      A petitioner’s failure to satisfy either prong will cause the ineffective assistance

      of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently,

      “[a]lthough the two parts of the Strickland test are separate inquires, a claim



      Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 8 of 40
       may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031

       (Ind. 2006) (citing Williams, 706 N.E.2d at 154).


                       A. Ineffective Assistance of Trial Counsel
[10]   Initially, we note that Akard’s ineffective assistance claims are not raised in a

       particularly clear manner. That being said, we will do our best to decipher

       Akard’s arguments on appeal. Akard seems to argue that his trial counsel

       provided ineffective assistance in an overwhelming number of ways, including

       (1) failing to object to pornographic images found on Akard’s computer being

       admitted into evidence; (2) failing to question A.A. about a prior rape

       accusations she levied against another individual; (3) waiving Akard’s right to a

       speedy trial; (4) failing to establish the exact time at which A.A.’s sustained

       certain bruises; (5) failing to request a continuance because neither Akard nor

       his counsel were in possession of Akard’s legal notes at the beginning of

       Akard’s trial; (6) failing to request a separation of witnesses; (7) failing to ensure

       that the jury was made up of a fair cross-section of the community; (8)

       acknowledging Akard’s federal convictions; (9) failing to challenge the veracity

       of the search warrant; (10) failing to object to the admission of or seek to

       suppress certain evidence that was found on his computer; (11) being

       unprepared for trial; (12) failure to report alleged violations of the trial court’s

       discovery order to the trial court; (13) failing to have the recording of the 911

       emergency call replayed before the jury; (14) failing to object to the type of

       paper that certain exhibits were printed on; (15) failing to investigate potential

       plea possibilities; (16) failing to seek information or advice from Akard and

       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 9 of 40
       present said information to the trial court during sidebar discussions; (17) failing

       to object to the proffered jury instructions; and (18) failing to demand that the

       jury form for one of the counts be signed by the jury foreman.


              1. Admission of Pornographic Images Found on Akard’s Computer

[11]   Akard argues that his trial counsel was ineffective for failing to suppress certain

       pornographic images that were found on his computer. Specifically, Akard

       claims that the challenged images, some of which involved children, should

       have been suppressed because they were inadmissible under Indiana Evidence

       Rule 404(b).1


[12]   Akard challenged the admission of the pornographic images on direct appeal,

       arguing that they were inadmissible under Indiana Evidence Rule 404(b). After

       considering Akard’s challenge, we concluded as follows:


               The pictures admitted as State’s Exhibit 154 are pornographic
               images selected from Akard’s computer that depict females of
               various ages that are bound and gagged, similar to A.A.’s
               description of how Akard bound her. At trial, Akard conceded
               that the pictures had “some basic relevance,” but argued that the
               pictures unfairly prejudiced him because some depict young girls.
               Tr. at 333. These pictures have more relevancy than conceded.
               The Exhibit 154 pictures are probative of Akard’s plan to make
               A.A. resemble the pictures stored on the laptop. It is undisputed



       1
         Evidence Rule 404(b)(1) provides that “[e]vidence of a crime, wrong, or other act is not
       admissible to prove a person’s character in order to show that on a particular occasion the person
       acted in accordance with the character.” This evidence, however, “may be admissible for
       another purpose such as proving motive, opportunity, intent, preparation, plan, knowledge,
       identity, absence of mistake, or lack of accident.” Ind. Evid. R. 404(b)(2).

       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 10 of 40
               that A.A.’s genitalia had been shaved during the incident and
               that she is petite, standing only five feet tall and weighing ninety
               pounds. A.A. also testified that at some point she woke to find
               stockings on her legs. During the incident, Akard even looked at
               some of the pictures. Due to the similarity between the pictures'
               content and what Akard did to A.A., the danger of unfair
               prejudice that may have resulted from the exhibit does not
               substantially outweigh the probative value. Therefore the trial
               court did not abuse its discretion in admitting Exhibit 154.


       Akard, 924 N.E.2d at 207. The Indiana Supreme Court summarily affirmed our

       conclusion in this regard.


[13]   The conclusion that the pornographic photographs were admissible as evidence

       at trial is now the law of the case. See generally, Ben-Yisrayl v. State, 738 N.E.2d

       253, 258 (Ind. 2000) (providing that as a general rule, when a court decides an

       issue on direct appeal, the doctrine of res judicata applies, thereby precluding its

       review in post-conviction proceedings). Akard cannot “escape the effect of

       claim preclusion merely by using different language to phase an issue and

       define an alleged error.” Id. Thus, having unsuccessfully challenged the

       admissibility of the pornographic photographs under Indiana Evidence Rule

       404(b) on direct appeal, Akard is precluded from merely rephrasing said

       challenge to allege that his trial counsel provided ineffective assistance by

       failing to have the challenged evidence excluded from trial.


                 2. Evidence Relating to Prior Rape Accusations Levied by A.A.

[14]   Akard also claims that his trial counsel provided ineffective assistance by failing

       to question A.A. about prior rape accusations she had levied against another

       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 11 of 40
       individual. In disposing of this claim, the post-conviction court found as

       follows:


               The fact that the victim had made another report of rape against
               another party that was not prosecuted by the State does not prove
               that the victim was lying about petitioner’s conduct in the instant
               case. Furthermore, evidence offered to prove that a victim or
               witness engaged in other sexual behavior or to prove a victim’s or
               witness’s sexual predisposition, was barred under Indiana Rule of
               Evidence 412. The report of the other allegation, which
               petitioner focuses on where he states, “the accusations against
               the petitioner is an effort by the victim to hide or explain a
               situation that can only have resulted from sexual activity, the
               same as [the victim’s] other cases” would have fallen under
               [Indiana Rule of Evidence] 412, and such an argument would
               not have been allowed at trial.


       Appellant’s Amd. App. p. 186 (first set of brackets in original, last set of

       brackets added).


[15]           The admission of evidence relating to a victim’s past sexual
               conduct is governed by Indiana Evidence Rule 412, which is
               commonly referred to as the Rape Shield Rule. Rule 412
               provides that, with very few exceptions, in a prosecution for a sex
               crime, evidence of the past sexual conduct of a victim or witness
               may not be admitted into evidence.… [However,] a common
               law exception has survived the 1994 adoption of the Indiana
               Rules of Evidence, and this exception provides that evidence of a
               prior accusation of rape is admissible if: (1) the victim has
               admitted that his or her prior accusation of rape is false; or (2) the
               victim’s prior accusation is demonstrably false. State v. Walton,
               715 N.E.2d 824, 828 (Ind. 1999). Prior accusations are
               demonstrably false where the victim has admitted the falsity of
               the charges or they have been disproved. Candler v. State, 837
               N.E.2d 1100, 1103 (Ind. Ct. App. 2005).
       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 12 of 40
       State v. Luna, 932 N.E.2d 210, 212-13 (Ind. Ct. App. 2010) (footnote omitted).


[16]   Akard seems to claim that evidence relating to the prior rape allegations made

       by A.A. would have been admissible at trial because the prior rape accusations

       made by A.A. were demonstrably false. In making this claim, Akard relies on

       the fact that the State ultimately dropped the charges brought against A.A.’s

       alleged attacker. However, we note that a prosecutor is vested with broad

       discretion in the performance of his or her duties, including the decision

       whether to prosecute a suspect. See Allen v. State, 813 N.E.2d 349, 368 (Ind. Ct.

       App. 2004), trans. denied. We believe, however, that a prosecutor may choose

       to drop charges against an alleged perpetrator for many reasons, such as

       insufficient evidence, and the fact that a prosecutor chose to drop charges,

       without more, does not prove that the allegations raised against the individual

       were false.


[17]   The record before us on appeal does not indicate why the prosecutor chose to

       dismiss the charges filed in connection to A.A.’s prior rape allegation. Akard

       has also failed to provide evidence showing that A.A. has ever admitted that the

       prior rape allegations were false or that the allegations were subsequently

       proven to be false. As such, we conclude that Akard has failed to demonstrate

       that A.A.’s prior accusations were demonstrably false. Because Akard has

       failed to prove that evidence relating to the prior rape accusations levied by

       A.A. would have been admissible at trial, we must conclude that his counsel

       was not ineffective for failing to present such evidence during trial.



       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 13 of 40
                                                3. Speedy Trial

[18]   Akard seems to claim that his trial counsel provided ineffective assistance by

       waiving Akard’s right to a speedy trial. With respect to Akard’s speedy trial

       claim, his trial counsel averred that Akard’s speedy trial claim “is without

       merit, as he was in federal custody for much of the pendency of this cause, and

       was not being held on his Tippecanoe County case.” Appellant’s App. p. 247.

       The post-conviction court reviewed this claim and found as follows:


               3.     Petitioner was not denied a speedy trial in this case, as he
               was in federal custody on child pornography charges, and not in
               State custody, for the pendency of most of this case. While this is
               normally an issue for direct appeal, the Court will address it here
               since petitioner has raised it as grounds for relief.

               4.      Petitioner was originally charged on September 14, 2006,
               in cause number 79D02-1609-FA-16 and filed a speedy trial
               motion on April 3, 2007, which was withdrawn on May 15, 2007
               and the trial date was continued. By that time petitioner was in
               federal custody, and the trial was reset to August 7, 2007. On
               July 7, 2007, the petitioner waived Criminal Rule 4 and speedy
               trial rights, and the trial was continued by agreement until
               November 2007, to allow the federal case to be resolved. On
               November 1, 2007, the State filed nolle prosequi[2] in FA-16.

               5.    On October 2, 2008, the State refiled the case in 79D02-
               0810-FA-36, and petitioner was produced from federal custody
               by Writ of Habeas Corpus. A trial date was set for January 13,




       2
        “Nolle prosequi” means to have a case dismissed. See BLACK’S LAW DICTIONARY (10th ed.) p.
       1210.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 14 of 40
               2009, and petitioner was again produced under Habeas Corpus,
               and the trial was conducted from January 13 to 15, 2009.

               6.     During much of the pendency of FA-16, petitioner was in
               federal custody, and waived CR4 on July 7, 2007. During that
               period 296 days ran against the State, although that total includes
               time the defendant was also held in federal custody, being held in
               the Lake County jail. The period from October 2, 2008, to
               January 13, 2009, would not run against the State, since the
               petitioner was being held in federal custody having been
               sentenced in his child pornography case.

               7.     As the Indiana Supreme Court has long acknowledged,
               Criminal Rule 4 (in that particular case CR4(B)) is limited in
               application when a defendant is held or incarcerated in another
               jurisdiction:

                        While it may be reasonable to impose the time limit
                        of Criminal Rule 4(B) when a criminal defendant is
                        within the exclusive control of the State of Indiana,
                        for purposes of certainty and ease of administration
                        of the rule, it becomes irrational to extend its
                        application to a defendant who is incarcerated in
                        another jurisdiction which has an interest in retaining
                        the defendant in its custody, either for trial or to serve
                        a sentence.

               Smith v. State, 368 N.E.2d 1154, 1156 (Ind. 1977).

               8.     Therefore, petitioner’s Criminal Rule 4 claim is overruled
               as to this petition.


       Appellant’s Amd. App. pp. 184-85 (first emphasis added).


[19]           The inquiry as to whether a defendant has been denied a speedy
               trial under the Sixth Amendment involves balancing a number of
               factors: (1) the length of delay; (2) the reason for the delay; (3) the
               defendant’s assertion of the right to a speedy trial; and (4) any
       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 15 of 40
               resulting prejudice to the defendant. Danks v. State, 733 N.E.2d
               474 (Ind. Ct. App. 2000) (citing Barker v. Wingo, 407 U.S. 514, 92
               S.Ct. 2182, 33 L.Ed.2d 101 (1972)), trans. denied. “[N]one of the
               four factors ... [is] either a necessary or sufficient condition to the
               finding of a deprivation of the right of speedy trial. Rather, they
               are related factors and must be considered together with such
               other circumstances as may be relevant.” [Barker, 407 U.S. at
               533].


       Fisher v. State, 933 N.E.2d 526, 530 (Ind. Ct. App. 2010) (first two sets of

       brackets in original, last set of brackets added).


[20]   According to Akard’s argument on appeal, neither the State nor his trial

       counsel knew that he was in federal custody on May 7, 2007, the date that

       Akard’s trial was scheduled to begin. When Akard’s whereabouts were

       discovered on May 15, 2007, Akard’s trial counsel withdrew Akard’s request

       for a speedy trial. Akard claims that he was prejudiced by the withdrawal of his

       request for a speedy trial. Akard further claims that he was prejudiced by the

       delay that resulted from the State’s act of dismissing and subsequently refiling

       the charges against Akard.


[21]   The record, however, is unclear as to whether federal authorities would have

       transferred Akard to State custody while he was being held and was awaiting

       trial on federal criminal charges. The record seems to indicate that the State

       charges were refiled soon after the federal case was resolved and Akard was

       produced from federal custody for hearings related to and his underlying trial.

       Given the uncertainty surrounding whether the federal authorities would have

       transferred Akard to State authorities for the purpose of conducting the

       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 16 of 40
       underlying trial prior to the conclusion of the federal criminal proceedings

       together with the fact that Akard’s right to a speedy trial would not apply while

       Akard was in federal custody, see Spalding v. State, 992 N.E.2d 881, 887 (Ind. Ct.

       App. 2013) (providing that if a defendant who is incarcerated in another

       jurisdiction is not brought into Indiana’s exclusive control, Criminal Rule 4

       does not apply), trans. denied, we conclude that Akard has failed to prove that he

       was prejudiced by the waiver of his speedy trial rights. Akard, therefore, has

       failed to prove that his trial counsel provided ineffective assistance in this

       regard.


                                 4. Exact Time When Bruises Inflicted

[22]   Akard also seems to claim that his trial counsel was ineffective for failing to

       elicit testimony from witnesses which would pinpoint the exact time during

       A.A.’s confinement in which A.A. sustained certain bruises and injuries.

       Akard appears to argue that his defense would have been bolstered by being

       able to establish the exact time during A.A.’s confinement that she sustained

       her injuries. Akard, however, does not appear to argue that A.A. sustained

       these injuries from any independent source. Given that the evidence

       demonstrated that Akard confined A.A. to his apartment and assaulted A.A.

       over the course of approximately eighteen or nineteen hours, we believe that

       even if it were possible to pinpoint the exact time during A.A.’s confinement at

       which each bruise was sustained, such evidence would be irrelevant as it would

       not have had any influence on the question of whether the injuries were

       inflicted by Akard. Akard, therefore, was not prejudiced by his trial counsel’s

       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 17 of 40
       alleged failure to elicit testimony from witnesses relating to the exact time at

       which A.A. sustained her injuries. Akard’s trial counsel did not provide

       ineffective assistance in this regard.


                    5. Request for Continuance to Locate Akard’s Legal Notes

[23]   Akard also seems to claim that his counsel was ineffective for failing to request

       a continuance of Akard’s trial to allow Akard or his counsel to locate Akard’s

       legal notes. Akard, however, has failed to establish that his legal notes would

       have been of any benefit to either him or his trial counsel. Akard, therefore, has

       failed to establish that he was prejudiced by not having his legal notes available

       at the beginning of his trial. His trial counsel, therefore, did not provide

       ineffective assistance by failing to request a continuance for the purpose of

       trying to obtain said legal notes.


                                 6. Request for Separation of Witnesses

[24]   Akard also appears to claim that his trial counsel provided ineffective assistance

       by failing to request a separation of witnesses. In considering this claim below,

       the post-conviction court found as follows:

               The Court finds no evidence that a decision not to move for
               separation of witnesses prejudiced the petitioner, or was
               ineffective, or that the State’s witnesses colluded on their
               testimony as a result. Petitioner raises this assertion but fails to
               prove any evidence that this happened, or provide authority that
               characterizes such a tactic as ineffective per se.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 18 of 40
       Appellant’s Amd. App. p. 188. Similarly, Akard provides no evidence on

       appeal to support his assertion that the State’s witnesses colluded on their

       testimony during trial. Akard’s assertion that certain witnesses may have

       colluded on their testimony, without more, is insufficient to prove prejudice.

       As a result, we conclude that Akard failed to prove that he suffered ineffective

       assistance of counsel in this regard.


                                               7. Jury Selection

[25]   Akard seems to claim that his trial counsel provided ineffective assistance by

       failing to ensure that the jury was made up of a fair cross-section of the

       community. In raising this claim, Akard seems to assert that the jury did not

       fairly represent a cross-section of the community and was in some way tainted

       because many members of the jury had children.


[26]   In disposing of this claim below, the post-conviction court found as follows:

               There is no evidence of juror bias. The fact that several jurors
               were parents with young children does not show that they were
               biased against the defendant, nor that they could not be impartial
               jurors.


       Appellant’s Amd. App. p. 185. Akard does not present any evidence

       supporting his personal belief that the jury was in some way tainted or biased

       against him. Akard has not shown that the jury did not represent a cross-

       section of the community or that his trial counsel performed inadequately

       during jury selection. Akard, therefore, has failed to prove that his trial counsel

       provided ineffective assistance in this regard.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 19 of 40
                                 8. Acknowledging Federal Convictions

[27]   Akard claims that his trial counsel provided ineffective assistance by

       acknowledging Akard’s federal convictions before the jury. In disposing of this

       claim below, the post-conviction court found as follows:


               This Court finds that trial counsel acknowledging petitioner’s
               child pornography conviction was a strategic decision, given the
               fact that this conviction was already known in the community,
               and counsel could not assume that no jurors would recall the
               federal case. Counsel chose to address the matter at the outset
               rather than risk it coming up later in the trial (and risk the
               appearance that the petitioner had attempted to conceal the
               matter from the jury). This Court cannot say that this was
               ineffective, given the circumstances.


       Appellant’s Amd. App. p. 187. Akard has presented no evidence on appeal to

       prove that trial counsel’s decision to acknowledge the federal convictions was

       anything other than a tactical decision aimed at minimizing any potential

       negative impact later disclosure might have on the jury. We will not second-

       guess trial counsel’s tactical decisions on appeal. See generally, Smith, 765

       N.E.2d at 585 (providing that we will defer to counsel’s strategic and tactical

       decisions).


                                    9. Veracity of the Search Warrant

[28]   Akard appears to also claim that his trial counsel provided ineffective assistance

       by failing to challenge the veracity of the search warrant issued in the

       underlying case. In disposing of Akard’s claim relating to the search warrant,

       the post-conviction court found that “The search warrant in this case was duly

       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 20 of 40
       issued for the petitioner’s residence, identifying it with particularity[.]”

       Appellant’s Amd. App. p. 185. Akard seems to argue that he was prejudiced

       because the warrant was amended to accurately reflect Akard’s date of birth

       and also the date the authorities actually entered his apartment. Akard asserts

       that although the warrant was originally dated for September 9, 2006,

       authorities did not actually enter his apartment until his landlord arrived to let

       them in at approximately 2:00 a.m. on September 10, 2006. Akard has failed to

       provide any indication as to how he was prejudiced by the correction of his date

       of birth and the date of entry into his apartment on the warrant. Akard,

       therefore, has failed to establish that he suffered ineffective assistance of counsel

       in this regard.


                                         10. Contents of Computer

[29]   Akard also appears to claim that his trial counsel provided ineffective assistance

       by failing to object to the admission of or seek to suppress certain evidence that

       was found on his computer. In finding this claim to be without merit, the post-

       conviction court found as follows:


               There is no evidence of unlawfully obtained evidence in this case.
               Had counsel chosen to, he could have moved for suppression,
               but with respect to the items seized under color of warrant, his
               motion would have failed. Counsel was not ineffective in this
               respect.


       Appellant’s Amd. App. p. 187. The post-conviction court further found that:




       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 21 of 40
               Failure to suppress evidence absent a constitutional issue is not
               an indicator of ineffectiveness. Petitioner has failed to show
               grounds on which a court would have suppressed any of the
               evidence gathered by the State. In the absence of at least a theory
               how counsel would have accomplished this, petitioner again fails
               to meet his burden.


       Appellant’s Amd. App. p. 188. Again, in order to prove ineffective assistance

       of counsel due to a failure to challenge the admission of evidence, whether by

       objection or motion to suppress, a petitioner must prove that an objection

       would have been sustained if made. See generally, Kubsch v. State, 934 N.E.2d

       1138 1150 (Ind. 2010) (providing that in order to prove ineffective assistance of

       counsel due to the failure to object, the petitioner must prove that an objection

       would have been sustained); see also Overstreet v. State, 877 N.E.2d 144, 155 (Ind.

       2007) (same). Akard has failed to do so.


[30]   Further, Akard does not explain what evidence was allegedly found on his

       computer other than the above-discussed pornography photographs. As we

       have discussed above, Akard has failed to prove that his trial counsel provided

       ineffective assistance with regard to the pornographic images found on Akard’s

       computer.


                                  11. Counsel’s Preparedness for Trial

[31]   Akard additionally claims that his trial counsel provided ineffective assistance

       because counsel allegedly failed to review certain pieces of evidence and, as a

       result, was unprepared for trial. With respect to his preparedness for trial,

       Akard’s trial counsel averred as follows:

       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 22 of 40
        11. Contrary to petitioner’s assertion, his case was thoroughly
        investigated and zealously presented, in view of the State’s claim
        against him.

                                                ****

        14. The bulk of petitioner’s affidavit, and the gravamen of his
        petition, is that I should have mounted a scorched-earth
        campaign against the State’s evidence and the victim, and that I
        should have argued alternative interpretations to the jury
        consonant with petitioner’s take on the case.

        15. Frankly, many of petitioner’s arguments would have
        reduced the chances of his acquittal even more, had they been
        made in open court. As counsel, I am expected to make
        determinations of strategy in the presentation of a defense. This
        does not include pushing every argument to the point of
        absurdity.

        16. Petitioner has his own perception of the events that took
        place, but I was constrained by the evidence to make a plausible
        argument for acquittal or to at least mitigate petitioner’s
        culpability.

                                                ****

        18. Petitioner clearly has his own interpretation of much of the
        evidence. To the extent my professional judgment allowed, I
        presented some of these arguments, but to have presented all of
        the petitioner’s arguments, again in my opinion, actually would
        have convinced the jury even more of his guilt rather than his
        innocence.

                                                ****

        20. In my professional opinion, I did the best I could have
        done in this case, dealing with the facts and evidence which I
        knew would be admitted at trial, making those arguments that
        would have the most credibility with the jury and not simply

Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 23 of 40
        show the defense to be contrarian, arguing over every piece of
        evidence.


Appellant’s App. p. 248. In finding Akard’s claim to be without merit, the post-

conviction court found as follows:

        30. Petitioner asserts that counsel did not adequately prepare
        for trial, but this Court finds that counsel took appropriate
        measures to prepare, conducted necessary investigations, and
        was well-prepared for trial.

                                                ****

        32. The ‘failure to investigate’ claim is related to petitioner’s
        claim that counsel was not adequately prepared. In fact counsel
        did investigate matters he felt could lead to an acquittal, or
        mitigation of culpability. That counsel did not conduct the
        investigations that petitioner thinks would have been fruitful is
        not evidence of ineffective assistance of counsel. This is equally
        true of the blue-stockings issue, as with the bathroom window
        issue.

        33. This Court finds that counsel investigated those witness
        brought to his attention by petitioner prior to trial, and that he
        made appropriate investigations of their probable testimony. The
        decision whether or not to call a witness is a strategic decision,
        based upon an attorney’s experience as a litigator. Petitioner
        furthermore does not address what their probable testimony
        would have been, whether they would have been credible to the
        jury, and that their testimony would have out-weighted the
        State’s evidence.

        34. Petitioner alleges that counsel failed to review transcripts
        and depositions, which is not convincing evidence that counsel
        failed to adequately prepare. His claim that this issue applies to
        “all witnesses of trial” is so broad and vague as to be
        unpersuasive. It is dubious that engaging in cross examination
Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 24 of 40
               before the jury regarding the price of an act of oral sex would
               have convinced the jury of petitioner’s innocence. Petitioner fails
               to show where an alleged omission impaired the defense of his
               charges.

                                                       ****

               39. Counsel’s “failure” to raise “significant and obvious
               issues” appears to be a reiteration of petitioner’s complaint that
               counsel did not make the same arguments and judgments he
               himself would have had he presented his own case. Petitioner’s
               attempt, for instant, to recast himself as the victim in this affair
               was a theory of the case his counsel was not required to adopt or
               to argue. Petitioner’s argument that had counsel excoriated the
               victim that he would have been acquired is unconvincing.


       Appellant’s Amd. App. pp. 188-89.


[32]   Akard has presented no clear argument as to what more counsel could

       reasonably have done to prepare for trial. Likewise, he has pointed to no

       evidence that suggests that the outcome of his trial would have been different

       had his trial counsel examined any additional evidence or further prepared for

       trial in any way. As such, Akard has failed to establish that he suffered

       ineffective assistance of trial counsel in this regard.


                                     12. Alleged Discovery Violations

[33]   Akard additionally claims that his trial counsel provided ineffective assistance

       by failing to “bring up” certain alleged violations of the trial court’s discovery

       order. Specifically, Akard appears to argue that his trial counsel failed to

       inform the trial court the State had withheld certain evidence from the defense

       in violation of Brady v. Maryland, 373 U.S. 83 (1963).
       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 25 of 40
[34]           To prevail on a Brady claim, a defendant must establish: (1) that
               the prosecution suppressed evidence; (2) that the suppressed
               evidence was favorable to the defense; and (3) that the evidence
               was material to an issue at trial. Bunch v. State, 964 N.E.2d 274,
               297 (Ind. Ct. App. 2012), trans. denied. Evidence is “material”
               under Brady only if there is a reasonable probability that, had the
               evidence been disclosed to the defense, the result of the
               proceeding would have been different. Id. And a “reasonable
               probability” is a probability sufficient to undermine confidence in
               the outcome. Id. However, the State will not be found to have
               suppressed material evidence if it was available to a defendant
               through the exercise of reasonable diligence. Id.


       Shelby v. State, 986 N.E.2d 345, 358 (Ind. Ct. App. 2013), trans. denied.


[35]   Although his argument is difficult to follow, Akard appears to allege three

       violations of the trial court’s discovery order. The first is that the State failed to

       disclose the criminal records of two of the witnesses included on the State’s list

       of potential witnesses that was provided during discovery. The second is that

       the State failed to disclose a photograph of a bathroom window in Akard’s

       apartment, which Akard claims rebuts the State’s theory that A.A. was trapped

       in Akard’s apartment. The third is that the State failed to disclose pictures of

       the victim’s injuries and/or information about prior instances of domestic abuse

       involving the victim.


[36]   As to all three allegations, Akard has failed to point to anything in the record

       suggesting that the State violated the trial court’s discovery order or Brady by

       keeping any evidence from the defense. Akard has also failed to provide that

       any of the challenged evidence was favorable to the defense or material to an

       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 26 of 40
       issue at trial. Further, to the extent that Akard asserts that the photograph of

       the bathroom window is material because it allegedly rebuts the State’s theory

       that A.A. was confined to Akard’s apartment for a period of approximately

       eighteen or nineteen hours, we do not believe that it was reasonably probable

       that the outcome of Akard’s case would have been different if the defense

       would have had access to a photograph depicting that there was a window in

       the bathroom of Akard’s apartment. Akard presents no evidence relating to the

       size and location of the window, i.e., how high the window was from the

       ground.


[37]   Akard has failed to establish that he was prejudiced by his trial counsel’s failure

       to report the discovery and/or Brady violations allegedly committed by the State

       to the trial court. Akard, therefore, has failed to prove that he suffered

       ineffective assistance in this regard.


                                         13. Recording of 911 Call

[38]   Akard also appears to argue that his trial counsel provided ineffective assistance

       by failing to have the 911 call replayed before the jury. In finding that Akard’s

       trial counsel did not provide ineffective assistance in this regard, the post-

       conviction court found as follows:


               This Court cannot evaluate petitioner’s due process argument
               about crucial evidence contained in a 911 call, as he does not
               state what that evidence was or prove how it would have affected
               the outcome of the trial.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 27 of 40
       Appellant’s Amd. App. p. 186. Akard presents no evidence relating to the

       contents of the 911 call. Thus, like the post-conviction court, we are unable to

       determine what beneficial evidence Akard believes would have been presented

       to the jury if his trial counsel had successfully requested the trial court to replay

       the recording of the 911 call for the jury.3


                                 14. Type of Paper Exhibits Printed On

[39]   Akard claims that his trial counsel provided ineffective assistance by failing to

       ensure that certain exhibits were printed on glossy photograph paper rather than

       plain copy paper. Specifically, Akard argues that “[t]he fact that the

       photographs were printed on flat white copy machine or printer paper

       prejudiced Akard instead of glossy photograph paper since the images are from

       digital photographs.” Appellant’s Br. p. 17. Akard does not explain how he

       could possibly be prejudiced by printing the photographs on copy paper rather

       than glossy photograph paper, stating only “Contrast, shading and quality.”

       Appellant’s Br. p. 17. Akard also argues that the fact that these photographs

       were printed on white copy machine paper rather than glossy photograph paper

       proves that his trial counsel failed to check the authenticity of the exhibits.

       Akard, however, has presented no evidence supporting this argument and has

       failed to produce any evidence suggesting how he was prejudiced by his




       3
         To the extent that Akard appears to argue that the recording of the 911 call was not properly
       preserved by the State, he points to no evidence that the recording was not properly preserved.
       He merely seems to claim that he was unable to do so in preparing for the underlying post-
       conviction proceedings.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 28 of 40
       counsel’s actions in this regard. Upon review, we are unable to see how Akard

       could have possibly been prejudiced by having the exhibits printed on copy

       machine paper rather than glossy photograph paper. Akard, therefore, has

       failed to demonstrate that his trial counsel provided ineffective assistance in this

       regard.


                                      15. Potential Plea Possibilities

[40]   Akard further claims that his trial counsel provided ineffective assistance by

       failing to explore potential plea possibilities. In raising this claim on appeal,

       Akard asserts that his counsel failed to fully explore potential plea offers, to

       adequately advise Akard on an alleged plea offered by the State, or to present a

       counter-offer to the State. Akard, however, does not present any evidence

       supporting his claim that his trial counsel was somehow responsible for Akard’s

       failure to accept the plea offered by the State. Likewise, he does not present any

       evidence indicating that the tender of a counter-offer would have been

       successful.


[41]   Akard’s trial counsel presented an affidavit to the post-conviction court. In this

       affidavit, Akard’s trial counsel averred that:

               The State initially tendered a plea offer which would have
               mitigated petitioner’s sentence considerably. Petitioner was
               aware of this offer and my advice to accept it, but rejected the
               offer and the tender expired.


       Appellant’s App. p. 248. Akard’s trial counsel further averred as follows:



       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 29 of 40
               24. In my opinion, petitioner should have taken the plea offer
               tendered by the State, which I advised him to do.

               25. The decision to go to trial was petitioner’s alone, and he
               was in possession of all the necessary information and facts at all
               stages of the process.


       Appellant’s App. p. 249. The post-conviction court denied Akard’s claim that

       his counsel was ineffective in this regard, finding as follows:


               There is no evidence that counsel induced the petitioner to
               proceed to trial. The Court finds that petitioner had no intention
               of pleading in this case. Therefore it is more probable that
               petitioner instructed counsel himself that he wished to submit the
               case to a jury.


       Appellant’s Amd. App. p. 187. Akard does not present any evidence to refute

       trial counsel’s averment on appeal. Therefore, based on this record, we are

       unable to conclude that Akard has demonstrated that his trial counsel provided

       ineffective assistance in this regard.


                                16. Actions During Sidebar Discussions

[42]   Akard’s claim relating to the alleged ineffective assistance rendered by his trial

       counsel during sidebar discussions is unclear, to say the least. Akard appears to

       assert that given the fact that the trial court allegedly would not permit Akard to

       speak for himself during sidebar discussions, his trial counsel should have

       sought information or advice from Akard and presented such information to the

       trial court during said sidebar discussions. Akard, however, has presented no

       argument relating to how he was prejudiced by his counsel’s alleged failure in

       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 30 of 40
       this regard. As such, Akard has failed to demonstrate that his trial counsel

       rendered ineffective assistance in this regard.


                                            17. Jury Instructions

[43]   Akard also appears to claim that his trial counsel provided ineffective assistance

       by failing to object to the proffered jury instructions. Akard, however, did not

       raise this claim in this PCR petition.


               Issues not raised in the petition for post-conviction relief may not
               be raised for the first time on post-conviction appeal. Ind. P-C.R.
               1(8); Allen v. State, 749 N.E.2d 1158 (Ind. 2001), cert denied. The
               failure to raise an alleged error in the petition waives the right to
               raise that issue on appeal. Badelle v. State, 754 N.E.2d 510[, 528
               (Ind. Ct. App. 2001)].


       Koons v. State, 771 N.E.2d 685, 691-92 (Ind. Ct. App. 2002). Thus, because

       Akard failed to raise this issue before the post-conviction court, the argument is

       waived and he may not present the argument on appeal.


                                        18. Unsigned Verdict Form

[44]   Akard last claims that his trial counsel provided ineffective assistance by failing

       to demand that the verdict form on one of the counts be signed by the jury

       foreman. Akard presents an unsigned copy of the verdict form in his appendix.

       However, he failed to designate the entire trial court record on appeal, so it is

       impossible for this court to determine whether the trial court record includes a

       signed verdict form. Further, Akard cannot show prejudice as the outcome of

       Akard’s trial is not affected by the trial court record allegedly including an


       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 31 of 40
       unsigned verdict form. Any defect in the form allegedly being left unsigned

       would be in form only. Further, if Akard’s trial counsel would have requested

       that the form be signed, the outcome of Akard’s trial would not have been

       affected as it would have been within the trial court’s discretionary powers to

       send the form back to the jury foreman with the request that the jury foreman

       sign the form. See generally, American Home Products Corp. v. Vance, 173 Ind.

       App. 631, 634, 365 N.E.2d 780, 782 (1977) (providing that if a verdict form is

       defective, the trial court would be operating well within its discretionary limits

       in sending the form back to the jury and mandating it be returned in proper

       form).


           Conclusion Relating to Claims of Ineffective Assistance of Trial Counsel

[45]   In sum, we conclude that Akard has failed to prove that he suffered ineffective

       assistance of trial counsel. We therefore affirm the judgment of the post-

       conviction court in this regard.


                    B. Ineffective Assistance of Appellate Counsel
[46]   The standard of review for a claim of ineffective assistance of appellate counsel

       is the same as for trial counsel in that the petitioner must show appellate

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

       prejudice. Overstreet, 877 N.E.2d at 165 (citing Bieghler v. State, 690 N.E.2d 188,

       193 (Ind. 1997)). Again, to satisfy the first prong, the petitioner must show that

       counsel’s performance was deficient in that counsel’s representation fell below

       an objective standard of reasonableness and that counsel committed errors so


       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 32 of 40
       serious that petitioner did not have the “counsel” guaranteed by the Sixth

       Amendment. Id. (citing McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). To

       show prejudice, the petitioner must show a reasonable probability that but for

       counsel’s errors the result of the proceeding would have been different. Id.

       (citing McCary, 761 N.E.2d at 392). “When raised on collateral review,

       ineffective assistance claims generally fall into three basic categories: (1) denial

       of access to an appeal; (2) waiver of issues; and (3) failure to present issues

       well.” Id. (citing McCary, 761 N.E.2d at 193-95).


[47]   Similar to his claims relating to trial counsel, we note that Akard’s claims

       relating to the alleged ineffective assistance rendered by his appellate counsel

       are not raised in a particularly clear manner. That being said, we will do our

       best to decipher Akard’s arguments on appeal. In alleging ineffective assistance

       of appellate counsel, Akard seems to claim that his counsel rendered ineffective

       assistance by failing to adequately argue issues brought on appeal and failing to

       seek rehearing of the Indiana Supreme Court’s decision. Akard also makes an

       argument that counsel provided ineffective assistance in some way relating to

       Akard’s pre-Miranda4 silence.




       4
           Miranda v. Arizona, 384 U.S. 436 (1966).

       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 33 of 40
                     1. Failing to Adequately Argue Issues Brought on Appeal

                           i. Challenge to Admission of Pornographic Images

[48]   Akard appears to claim that his appellate counsel provided ineffective assistance

       by failing to argue that at least one of the images should not have been admitted

       because of slight discrepancies between A.A.’s initial statement, deposition

       testimony, and trial testimony. Specifically Akard seems to assert that although

       A.A. initially stated that the photograph in question depicted Akard having sex

       with a young child who was dead, A.A. subsequently indicated that she initially

       thought the man in the photograph looked like Akard and that the child

       appeared dead. Akard seems to argue that his appellate challenge to the

       admission of the pornography found on his computer would have been stronger

       if appellate counsel would have included argument relating to this discrepancy.

       We cannot agree.


[49]   On appeal, counsel argued that pornographic images were erroneously

       admitted because the images were unfairly prejudicial. If the images had not

       been admitted into evidence, the jury would not have heard any discussion

       about the images, including discussion about whether the child depicted in one

       of the photographs appeared dead or alive. This discussion, therefore, would

       not have been relevant at trial. Counsel’s approach amounts to a tactical

       decision, which we will not second guess. See generally, Reed, 866 N.E.2d at 769

       (providing that we defer to counsel’s strategic and tactical decisions).




       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 34 of 40
           ii. Challenge to Magazine Page Depicting Adults Urinating on Each Other

[50]   Akard also claims that his appellate counsel provided ineffective assistance with

       regard to his arguments relating to a torn magazine page found in Akard’s

       apartment that depicted adults urinating on each other. Appellate counsel

       challenged the admission of the magazine page, arguing that it was not relevant

       to the charges levied against Akard. It is unclear what additional argument

       relating to this piece of evidence Akard believes his appellate counsel should

       have made on appeal. Again, appellate counsel’s approach, i.e., arguing the

       challenged evidence was inadmissible because it was not relevant to the charges

       levied against Akard, amounts to a tactical decision, which we will not second

       guess. See generally, id. (providing that we defer to counsel’s strategic and

       tactical decisions).


                                            iii. Sentence Challenge

[51]   Akard appears to argue that his appellate counsel provided ineffective assistance

       in arguing that the imposed ninety-three year sentence was inappropriate.

       Although it is unclear what Akard believes his counsel should have done

       differently, Akard seems to assert that the trial court should have ordered his

       Indiana sentence to run concurrently to his federal sentence. Akard, however,

       provides no citation to any authority suggesting that running the Indiana

       sentence concurrently to Akard’s federal sentence would have been proper.

       Akard has failed to demonstrate that he was prejudiced by appellate counsel’s

       representation relating to his sentence.



       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 35 of 40
                                              iv. Double Jeopardy

[52]   Akard also appears to argue that his appellate counsel provided ineffective

       assistance because counsel failed to argue that his convictions violate the

       prohibitions against double jeopardy on direct appeal. Akard’s argument in this

       regard is unclear, difficult to follow, and lacks cogent reasoning. However, to

       the extent that we can decipher Akard’s arguments, it seems that he is asserting

       that because he was found guilty of Class B felonies in certain counts rather

       than Class A felonies, the jury must have found that he did not have a deadly

       weapon, and, as a result, could not have used deadly force against A.A. or A.A.

       could not have suffered serious bodily injury. This assertion is without merit.


[53]   The State charged Akard with numerous crimes, including charges of Class A

       felony and Class B felony rape and Class A felony and Class B felony criminal

       deviate conduct, and the jury found Akard guilty of each of the charged

       offenses. Akard, 924 N.E.2d at 206. The fact that the jury found Akard guilty

       of the Class A felony counts indicates that the jury found that he was either

       armed with a deadly weapon, used deadly force, or inflicted serious bodily

       injury to the victim. See Indiana Code §§ 35-42-4-1, 35-42-4-2. In addition, the

       evidence demonstrates that Akard confined A.A. for many hours, during which

       he battered her, tased her, forced her to take drugs, bound her, gagged her,

       choked her, punched her, caused her to lose consciousness, and subjected her to

       numerous sexual assaults while he was armed with a handgun. Akard, 924

       N.E.2d at 205-06. The evidence also demonstrates that A.A. suffered serious



       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 36 of 40
       bodily injury. Id. Akard has failed to establish that his appellate counsel

       performed below acceptable professional norms in this regard.


                                   v. Aggravating Factors at Sentencing

[54]   Furthermore, to the extent that Akard argues that his appellate counsel

       provided ineffective assistance because counsel allegedly failed to object to the

       use of “non-convictions” as an aggravating factor considered by the trial court,

       Akard has failed to make a cogent argument. “‘A party waives an issue where

       the party fails to develop a cogent argument or provide adequate citation to

       authority and portions of the record.’” Wingate v. State, 900 N.E.2d 468, 475

       (Ind. Ct. App. 2009) (quoting Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct.

       App. 2005), trans. denied); see also Ind. Appellate Rule 46(A)(8) (requiring that

       contentions in appellant’s briefs be supported by cogent reasoning and citations

       to authorities, statutes, and the appendix or parts of the record on appeal).

       Akard, therefore, has waived this claim by failing to provide a cogent argument

       in support of his claim.


                                       2. Failure to Seek Rehearing

[55]   Akard argues that he was prejudiced by his appellate counsel’s failure to seek

       rehearing of the Indiana Supreme Court’s decision on direct appeal. Akard’s

       argument in this regard is unclear. Akard cites to no legal authority in support

       of his argument and his argument lacks cogent reasoning. Accordingly, Akard

       has waived this challenge on appeal. See Wingate, 900 N.E.2d at 475; Ind.

       Appellate Rule 46(A)(8).


       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 37 of 40
                         3. Claim Relating to Akard’s Pre-Miranda Silence

[56]   On appeal, Akard’s appellate counsel argued that Akard suffered fundamental

       error when the State elicited testimony regarding Akard’s silence when he was

       arrested. With respect to the fundamental error claim, this court’s decision on

       direct appeal states as follows:

               Akard’s silence while the police were entering his apartment was
               mentioned four times during trial: briefly during the prosecutor’s
               opening and closing arguments and during the testimony of two
               police officers in the State’s case-in-chief. Questions asked of the
               two officers were whether Akard made any statements or asked
               any questions when he was arrested to which both officers
               responded in the negative.

                                                       ****

               While Akard argues that this line of testimony violated his
               constitutional rights, he does not argue how these few references
               worked to his actual and substantial disadvantage, creating the
               impossibility of a fair trial. Moreover, the brevity of these
               references in comparison to the other substantial evidence
               presented to prove Akard’s guilt, including the taser marks on
               A.A. and the physical evidence found at Akard’s apartment
               corroborating A.A.’s testimony, leads us to the conclusion that
               the brief mention of his pre-Miranda silence does not rise to the
               level of fundamental error.


       Akard, 924 N.E.2d at 208-09. This court’s conclusion relating to the

       fundamental error claim was summarily affirmed by the Indiana Supreme

       Court. Akard, 937 N.E.2d at 814. Akard’s argument with regard to how

       counsel provided ineffective assistance with respect to the fundamental error

       claim is unclear, to say the least. Akard does not present any argument relating

       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 38 of 40
       to how he believed appellate counsel should have handled this issue differently

       on direct appeal. Further, to the extent that Akard is challenging the

       determination that reference to his pre-Miranda silence did not amount to

       fundamental error, we note that such a challenge would be barred by the

       doctrine of res judicata. See Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001)

       (providing that if an issue was raised but decided adversely on appeal, a post-

       conviction challenge is barred by the doctrine of res judicata).


        Conclusion Relating to Claims of Ineffective Assistance of Appellate Counsel

[57]   In sum, we conclude that Akard has failed to prove that he suffered from

       ineffective assistance of appellate counsel.


              C. Ineffective Assistance of Post-Conviction Counsel
[58]   Akard last contends that his post-conviction counsel provided ineffective

       assistance by withdrawing from the case without Akard’s agreement or

       acquiescence. The right to counsel in post-conviction proceedings is not

       guaranteed by either the Sixth Amendment of the United States Constitution or

       Article I, Section 13 of the Indiana Constitution. Daniels v. State, 741 N.E.2d

       1177, 1190 (Ind. 2001) (citing Baum v. State, 533 N.E.2d 1200, 1201 (Ind.

       1989)).


[59]   While Akard claims that his post-conviction counsel withdrew from the case

       without first obtaining Akard’s agreement or acquiescence, post-conviction

       counsel’s motion to withdraw her appearance indicates that Akard had filed a

       pro-se petition, expressed his desire to proceed pro-se, and waived representation.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 39 of 40
       Following post-conviction counsel’s withdraw, Akard was afforded the

       opportunity to prepare and present his case. Akard has presented no evidence

       demonstrating that he was subjected to a procedurally unfair setting as a result

       of counsel’s withdraw. Upon review, we conclude that Akard has failed to

       establish that he suffered ineffective assistance by his post-conviction counsel.



                                               Conclusion
[60]   In sum, we conclude that Akard did not receive ineffective assistance from his

       trial, appellate, or post-conviction counsel. Accordingly, we affirm the post-

       conviction court’s denial of Akard’s PCR petition.


[61]   The judgment of the post-conviction court is affirmed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1411-PC-553 | October 22, 2015   Page 40 of 40
