      MEMORANDUM DECISION
                                                                                      FILED
      Pursuant to Ind. Appellate Rule 65(D),                                      Jul 20 2018, 5:39 am
      this Memorandum Decision shall not be
                                                                                      CLERK
      regarded as precedent or cited before any                                   Indiana Supreme Court
                                                                                     Court of Appeals
      court except for the purpose of establishing                                     and Tax Court

      the defense of res judicata, collateral
      estoppel, or the law of the case.


      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      Jeffrey K. Johnson                                        Curtis T. Hill, Jr.
      Pendleton, Indiana                                        Attorney General of Indiana
                                                                Justin F. Roebel
                                                                Supervising Deputy Attorney
                                                                General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jeffrey K. Johnson,                                       July 20, 2018
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                84A01-1703-PC-491
              v.                                                Appeal from the Vigo Superior
                                                                Court
      State of Indiana,                                         The Honorable Michael R. Rader,
      Appellee-Respondent.                                      Judge
                                                                Trial Court Cause No.
                                                                84D05-1208-PC-2606



      Mathias, Judge.


[1]   After his conviction for voluntary manslaughter was affirmed on direct appeal,

      Jeffrey K. Johnson (“Johnson”) filed a petition for post-conviction relief in Vigo

      Court of Appeals of Indiana | Memorandum Decision 84A01-1703-PC-491 | July 20, 2018                 Page 1 of 14
      Superior Court. The post-conviction court denied Johnson’s petition, and

      Johnson appeals pro se, presenting two issues, which we restate as: (1) whether

      the post-conviction court applied the proper legal standard in rejecting

      Johnson’s claim of ineffective assistance of trial counsel for tendering a jury

      instruction on the lesser-included offense of voluntary manslaughter, and (2)

      whether the post-conviction court erred by not addressing in its findings of fact

      and conclusions of law numerous issues which Johnson claims were before the

      court.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In our memorandum decision on Johnson’s direct appeal, we set forth the facts

      underlying his conviction as follows:


               During October 2001, Johnson was married to Keshia Johnson,
               but they were living separately pursuant to a court’s no contact
               order. Johnson and Keshia had a history of arguing, including
               Johnson threatening to physically harm Keshia. A neighbor saw
               Johnson and Keshia arguing outside their apartment and heard
               Johnson threaten, “bitch, get back in this house . . . get back in
               this house or I’m gonna kill you.” On July 5, 2001, Keshia’s
               friend Kimberly Bryant walked into Keshia’s apartment to see
               Keshia “on the floor and [Johnson] strangling her.” On
               September 9, 2001, officers responded to a domestic dispute at
               Keshia’s residence, observed Johnson standing across the street,
               and saw marks on Keshia’s neck, “consistent with a type of a
               choking incident.”

               On October 21, 2001, police were dispatched to Keshia’s
               apartment because someone called 911, and then hung up.

      Court of Appeals of Indiana | Memorandum Decision 84A01-1703-PC-491 | July 20, 2018   Page 2 of 14
        Keshia appeared upset, and told the officers that Johnson pushed
        her and that she wanted him arrested. Johnson told the officers
        he was upset with Keshia for being “out all night” and for
        adultery. Johnson was arrested for violating his no contact order.
        While in jail, Johnson told inmate Eldridge Wade that he would
        kill his wife when he was released from jail. On October 22,
        2001, Johnson appeared in court for an arraignment hearing. He
        was released later that day. The same day, a friend of Keshia’s
        saw Johnson walk onto Keshia’s front porch, look into her
        mailbox, then jump off the porch when he realized he was being
        watched.

        During the early morning hours of October 23, 2001, Johnson
        was drinking at a bar with Lonnie VanHorn, a drug dealer who
        sold methamphetamine to Johnson. VanHorn and Johnson left
        the bar and parted ways around 2:55 a.m. At 3:51 a.m., a
        neighbor heard arguing in Keshia’s apartment. Keshia’s body
        was found in the apartment later that day. The autopsy found
        that she had been strangled and stabbed nine times.

        VanHorn and his friend James Ware were socializing in the
        house in which VanHorn was staying when Johnson arrived
        later. Johnson was acting “spooked” and told VanHorn, “I did it
        . . . I killed Keshia.” Ware heard Johnson ask VanHorn if he
        could wash some clothing, and Johnson showered at that house.

        Around 5:00 a.m., Johnson went to his friend Jeff Foster’s
        apartment. Rosetta Smith saw Johnson there. She saw blood on
        his shirt and observed that he was acting “shaky, kind of nervous
        looking” and was asking people to give him an alibi. Smith also
        said that he had “killed her,” but Smith did not know whom
        Johnson meant. Johnson left cell phone messages with a friend,
        telling the friend to contact him because of an emergency.
        Johnson went to work from 7:12 a.m. until 1:20 p.m.

        The police apprehended Johnson outside of Keshia’s apartment
        around 1:30 p.m. Johnson was placed in a room at the police
        station until approximately 4:00 p.m., and he was videotaped

Court of Appeals of Indiana | Memorandum Decision 84A01-1703-PC-491 | July 20, 2018   Page 3 of 14
              while waiting and later while being interviewed. While in jail,
              Johnson again talked to inmate Wade and told him that he had
              just killed his wife by choking her and then stabbing her.


      Johnson v. State, No. 84A01-0402-CR-64, slip op. at 2–4 (Ind. Ct. App. Dec. 6,

      2004) (citations omitted), trans. denied.


[4]   On October 29, 2001, the State charged Johnson with murder. A jury trial

      commenced on December 8, 2003. At the conclusion of the evidence,

      Johnson’s trial counsel tendered an instruction on the lesser-included offense of

      voluntary manslaughter. During its deliberations, the jury sent the trial judge a

      note that said, “What occurs if the jury is ‘hung’? After considerable

      deliberation four of us continue to assert the state did not prove [Johnson’s]

      guilt.” Direct Appeal App. p. 579. After consultation with both defense counsel

      and the prosecution, the trial court sent a note to the jury stating, “You need to

      continue to deliberate.” Id. at 580. Shortly thereafter, the jury found Johnson

      guilty of the lesser-included offense of voluntary manslaughter. The trial court

      subsequently sentenced Johnson to forty-five years of incarceration.


[5]   On direct appeal, Johnson presented five issues: (1) whether the prosecuting

      attorney committed misconduct by informing the jury that Johnson’s counsel

      requested the jury instruction on the lesser-included offense of voluntary

      manslaughter; (2) whether the trial court erred in communicating with the jury

      in open court regarding the possibility of an impasse; (3) whether the trial

      court’s admission of certain hearsay statements violated Johnson’s

      confrontation rights under Crawford v. Washington, 541 U.S. 36 (2004); (4)

      Court of Appeals of Indiana | Memorandum Decision 84A01-1703-PC-491 | July 20, 2018   Page 4 of 14
      whether the trial court erred in excluding certain evidence proffered by

      Johnson; and (5) whether the trial court properly reported Johnson’s good time

      credit in its sentencing order. Johnson, slip op. at 2.


[6]   A panel of this court rejected Johnson’s claims, holding: (1) that the

      prosecutor’s comment was harmless; (2) that Johnson waived any objection to

      the trial court communicating with the jury and that the trial court was not

      required to communicate with the jury in open court in Johnson’s presence

      because the jury was not deadlocked; (3) that the hearsay statements were not

      testimonial and therefore Crawford was inapplicable; (4) that the trial court did

      not abuse its discretion in excluding Johnson’s proffered evidence; and (5) that

      the trial court’s sentencing order was “understood to automatically award him

      809 days of credit in addition to the 809 days that he served while awaiting

      sentencing[.]” Id. at 13. Johnson filed a petition to transfer his case to the

      Indiana Supreme Court, but that court denied the petition.


[7]   On July 24, 2012, Johnson filed a pro se petition for post-conviction relief, which

      he amended on July 15, 2013. The post-conviction court summarily denied

      Johnson’s petition, and Johnson appealed. The State filed a motion to remand,

      which this court granted on December 5, 2014. Appellant’s Amended App. p.

      127–28. The post-conviction court held evidentiary hearings on remand on

      January 5, March 23, and August 31, 2015. On December 4, 2015, in apparent

      response to the post-conviction court’s request for post-hearing briefing on the

      issues, Johnson filed what he titled a “Motion for Remaining Issues to be a Part

      of the Record,” a twenty-eight-page filing referencing several items of evidence.

      Court of Appeals of Indiana | Memorandum Decision 84A01-1703-PC-491 | July 20, 2018   Page 5 of 14
      Id. at 258–86. Attached to this motion was a collection of sixteen exhibits

      submitted by Johnson. Id. at 287–337. The post-conviction court granted the

      motion in an order issued December 23, 2015. Both parties then submitted

      proposed findings of fact and conclusions of law, and on February 9, 2017, the

      post-conviction court issued its findings of fact and conclusions of law denying

      Johnson’s petition for post-conviction relief. Johnson now appeals.


                           Post-Conviction Standard of Review
[8]   Our standard of review of claims that a post-conviction court erred in denying

      relief is well settled. That is, post-conviction proceedings are not “super

      appeals” through which convicted persons can raise issues they failed to raise at

      trial or on direct appeal. Manzano v. State, 12 N.E.3d 321, 325 (Ind. Ct. App.

      2014) (citations omitted), trans. denied. Instead, post-conviction proceedings

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

      unknown at trial and on direct appeal. Id. A post-conviction petitioner bears the

      burden of establishing grounds for relief by a preponderance of the evidence. Id.

      Thus, on appeal from the denial of post-conviction relief, the petitioner stands

      in the position of one appealing from a negative judgment. Id. To prevail on

      appeal from the denial of post-conviction relief, the petitioner must show that

      the evidence as a whole leads unerringly and unmistakably to a conclusion

      opposite that reached by the post-conviction court. Id.


[9]   As required by Indiana Post-Conviction Rule 1(6), the post-conviction court

      entered findings of fact and conclusions of law. Therefore, we must determine if


      Court of Appeals of Indiana | Memorandum Decision 84A01-1703-PC-491 | July 20, 2018   Page 6 of 14
       the court’s findings are sufficient to support its judgment. Manzano, 12 N.E.3d

       at 325. We review the post-conviction court’s factual findings under a clearly

       erroneous standard, i.e., we will not reweigh the evidence or judge the

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

       reasonable inferences flowing therefrom that support the post-conviction court’s

       decision. We do not defer to the post-conviction court’s legal conclusions,

       which are reviewed de novo. Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002).


                   I. Whether the Post-Conviction Court Misstated the Law

[10]   Johnson first argues that, in addressing one of his allegations of ineffective

       assistance of trial counsel, the post-conviction court misstated the law regarding

       when a trial court should give the jury an instruction on a lesser-included

       offense.1 Specifically, Johnson argues that the post-conviction court misstated

       the law when it wrote in its findings of fact and conclusions of law:


                First, the trial court must compare the statue [sic] [defining] the
                crime charged with the statute defining the lesser-included
                offense. If the lesser-included offense may be established by proof
                of all of the same or proof of less than all of the same material
                elements, or if the alleged lesser-included offense requires proof
                of a lesser culpability, then the alleged lesser-included offense is


       1
         The State, perhaps out of an abundance of caution, treats Johnson’s argument as one of the ineffective
       assistance of counsel. Our review of Johnson’s brief, however, reveals that he makes no cognizable claim of
       ineffective assistance of counsel. We therefore do not address such an argument. See Wingate v. State, 900
       N.E.2d 468, 475 (Ind. Ct. App. 2009) (noting that 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.); Ind. Appellate Rule
       46(A)(8)(a) (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). We recognize that Johnson is
       proceeding pro se. But it is well settled that, in Indiana, pro se litigants are held to the same standards as
       licensed attorneys, and we may not become an advocate for pro se litigants or develop arguments on their
       behalf. Lowrance v. State, 64 N.E.3d 935, 938 (Ind. Ct. App. 2016), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 84A01-1703-PC-491 | July 20, 2018                Page 7 of 14
               inherently included. In the second step, if the trial court finds the
               lesser-included offense is not inherently included, then it must
               find all of the elements of the alleged lesser-included offense are
               covered by the allegations in the charging instrument. If the trial
               court finds neither, then it must examine the evidence
               presented by each party and determine whether there is a
               serious evidentiary dispute over the elements that distinguish
               the crime charged and the lesser-included. If it is possible for the
               jury to find the lesser and not the greater offense has been
               committed, the trial court must instruct the jury on both offenses.


       Appellant’s Amended App. p. 525 (citing Wright v. State, 658 N.E.2d 563, 567

       (Ind. 1995)) (emphasis added). Johnson correctly notes that this misstates what

       the Wright court actually wrote, i.e.:


               If the alleged lesser included offense is neither inherently nor
               factually included in the crime charged, then the trial court
               should not give a requested instruction on the alleged lesser
               included offense.

               . . . [I]f a trial court has determined that an alleged lesser
               included offense is either inherently or factually included in the
               crime charged, it must look at the evidence presented in the case
               by both parties. If there is a serious evidentiary dispute about the
               element or elements distinguishing the greater from the lesser
               offense and if, in view of this dispute, a jury could conclude that
               the lesser offense was committed but not the greater, then it is
               reversible error for a trial court not to give an instruction, when
               requested, on the inherently or factually included lesser offense.


       Wright, 658 N.E.2d at 567.


[11]   Here, it appears that the post-conviction court conflated these two paragraphs

       from Wright. In other words, the post-conviction court mistakenly wrote that, if

       Court of Appeals of Indiana | Memorandum Decision 84A01-1703-PC-491 | July 20, 2018   Page 8 of 14
       the trial court finds that a lesser offense is neither inherently nor factually

       included, then it must determine whether there is a serious evidentiary dispute

       as to which offense the defendant committed. Whereas the correct legal test for

       lesser included offenses is that, if a trial court finds that the lesser-included

       offense is either inherently or factually included, then it must proceed to

       determine whether there is a serious evidentiary dispute as to whether the

       defendant may have committed the lesser but not the greater offense. Id. And if

       the trial court finds that the lesser offense is neither inherently nor factually

       included, then it should not give the lesser-included offense instruction. Id. We

       conclude, however, the post-conviction court’s misstatement constitutes, at

       most, harmless error.


[12]   It is well established that voluntary manslaughter is, as a matter of law, an

       inherently lesser-included offense of murder. See Watts v. State, 885 N.E.2d

       1228, 1232 (Ind. 2008). Thus, under the Wright test, the next step was to

       determine whether there was a serious evidentiary dispute as to whether the

       defendant committed the lesser or the greater offense. Despite the mistake in

       the post-conviction court’s description of the Wright test, this is precisely what

       the post-conviction court did. That is, the post-conviction court addressed the

       question of whether there was a serious evidentiary dispute as to the existence

       of sudden heat—the element that distinguishes murder from voluntary




       Court of Appeals of Indiana | Memorandum Decision 84A01-1703-PC-491 | July 20, 2018   Page 9 of 14
       manslaughter.2 And the post-conviction court concluded that there was a

       serious evidentiary dispute regarding the existence of sudden heat sufficient to

       support an instruction on the lesser-included offense of voluntary manslaughter.

       See Appellant’s App. p. 525 (“The trial record clearly shows evidence of sudden

       heat.”).


[13]   Accordingly, even though the post-conviction court’s findings and conclusions

       contains a misstatement of the Wright test, this had no effect on the post-

       conviction court’s ultimate conclusion—that there was a serious evidentiary

       dispute as to whether Johnson acted in sudden heat—because the trial court

       properly applied the Wright test. There is therefore no need to remand for

       reconsideration as requested by Johnson.3




       2
        See Ind. Code § 35-42-1-3(b) (“The existence of sudden heat is a mitigating factor that reduces what
       otherwise would be murder under section 1(1) of this chapter to voluntary manslaughter.”); Watts, 885
       N.E.2d at 1232.
       3
         Although Johnson frames his argument as the post-conviction court misstating the applicable law, he also
       appears to argue that the trial court erred by instructing the jury on the lesser-included offense of voluntary
       manslaughter. He does not, however, frame this issue as one of the ineffective assistance of trial counsel. See
       note 1, supra. Instead, he appears to argue it as a free-standing claim of error. But Johnson cannot raise a free-
       standing issue that was known and available on direct appeal in a petition for post-conviction relief. See
       Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied. Not even an allegation that the error
       is fundamental is sufficient to overcome this waiver, as our supreme court has held that even claims of
       fundamental error are not reviewable in post-conviction proceedings when presented as free-standing claims
       of error. Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002). There is nothing in the record that would suggest
       that the instructional issue Johnson now seeks to present was either unknown or unavailable to him on direct
       appeal.
       We further note that, in addressing Johnson’s claim of prosecutorial misconduct on direct appeal, this court
       held that “the State presented ample evidence to support the jury’s finding that Johnson committed voluntary
       manslaughter.” Johnson, slip op. at 7. To the extent that Johnson now seeks to relitigate this issue, our prior
       holding is res judicata. See Lindsey, 888 N.E.2d at 322 (noting that if an issue was raised on direct appeal, but
       decided adversely, it is res judicata) (citing Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001)).

       Court of Appeals of Indiana | Memorandum Decision 84A01-1703-PC-491 | July 20, 2018                 Page 10 of 14
              II. Whether the Post-Conviction Court Failed to Address All of
                                     Johnson’s Claims

[14]   Johnson next contends that the post-conviction court failed to address all fifty-

       three of his claims for post-conviction relief and instead only addressed six of

       these claims. He therefore argues that we should remand with instructions that

       the post-conviction court address all of his claims or address them ourselves.


[15]   In his initial petition for post-conviction relief, Johnson presented the following

       claims:


                (a) Trial counsel were ineffective when they failed to investigate
                the crime scene and evidence, when they failed to fully and
                properly prepare for trial, when they failed to object to
                Constitutional violations and when they failed to advocate the
                interest of his client and the actual innocence claim of his client.

                (b) Appellate counsel was ineffective when he failed to raise
                meritorious issues and competently raise issues.


       Appellant’s Amended App. p. 17.


[16]   In his amended petition, Johnson presented seventeen allegations of the

       ineffectiveness of his trial counsel,4 five allegations of the ineffectiveness of his




       4
         Specifically, Johnson alleged that his trial counsel were ineffective for: (1) tendering a jury instruction
       unsupported by law; (2) failing to strike a juror; (3) failing to investigate the crime scene; (4) failing to
       investigate evidence available through discovery; (5) failing to call certain witnesses; (6) failing to call expert
       witnesses; (7) failing to subpoena a hard-to-find witness until shortly before trial; (8) failing to present
       evidence; (9) failing to test certain evidence for DNA; (10) failing to impeach witnesses; (11) failing to
       introduce evidence of mitigation at sentencing; (12) failing to file or properly file a motion in limine; (13)
       failing to file a motion for a continuance; (14) failing to object to allegedly inadmissible evidence; (15) failing
       to request a mistrial or an admonishment after the prosecutor’s misconduct; (16) failing to request a mistrial

       Court of Appeals of Indiana | Memorandum Decision 84A01-1703-PC-491 | July 20, 2018                   Page 11 of 14
       appellate counsel,5 and argued that the trial court committed fundamental error

       by giving a jury instruction that was improper and unsupported by the evidence.

       Id. at 74–76.


[17]   At the final evidentiary hearing, the post-conviction court asked Johnson to

       submit a brief explaining his claims in more detail. Johnson’s post-hearing

       Motion for Remaining Issues to be a Part of the Record was apparently in

       response to this request. Johnson now argues that the post-conviction court

       erred by not specifically addressing each claim Johnson raised in this post-

       hearing motion and in his petition for post-conviction relief.


[18]   We conclude that Johnson has waived this issue, as he does not specify which

       claims the trial court failed to address. He simply contends that the trial court

       failed to address all thirty-one of the claims he believes he raised in his amended

       petition and post-hearing motion without identifying what those issues are. We

       will not scour the record to develop Johnson’s arguments for him. See Lowrance

       v. State, 64 N.E.3d 935, 938 (Ind. Ct. App. 2016) (noting that this court may not

       become an advocate for pro se litigants or develop arguments on their behalf),

       trans. denied; see also Keller v. State, 549 N.E.2d 372, 373 (Ind. 1990) (noting that

       “a court which must search the record and make up its own arguments because



       for the State’s failure to disclose certain evidence during discovery; and (17) failing to raise a claim of a
       speedy trial violation. Appellant’s Amended App. pp. 74–75.
       5
         Specifically, Johnson alleged that his appellate counsel was ineffective for: (1) failing to raise issues that
       were clear from the face of the record; (2) failing to raise issues that were brought to his attention by Johnson;
       (3) incompetently arguing an issue after an incorrect analysis of the law was allegedly stated by this court on
       direct appeal; (4) failing to present the issue of a speedy trial violation; and (5) failing to raise and support a
       claim of ineffective assistance of trial counsel. Id. at 75.

       Court of Appeals of Indiana | Memorandum Decision 84A01-1703-PC-491 | July 20, 2018                   Page 12 of 14
       a party has presented them in perfunctory form runs the risk of being an

       advocate rather than an adjudicator.”).


[19]   Moreover, to the extent that Johnson’s argument is that the post-conviction

       court had a duty to consider each claim raised in his post-hearing motion, we

       agree with the State that Johnson was required to have presented these issues in

       either his original or amended petitions for post-conviction relief. See Walker v.

       State, 843 N.E.2d 50, 57 (Ind. Ct. App. 2006) (noting that issues not presented

       in a post-conviction petition are waived), trans. denied; see also Ind. Post-

       Conviction Rule 1(8) (“All grounds for relief available to a petitioner under this

       rule must be raised in his original petition.”). Nor do we consider Johnson’s

       post-hearing motion a request to amend his petition. It was instead akin to an

       argumentative brief, as it was a response to the post-conviction court’s request

       for such post-hearing briefing.


                                                 Conclusion
[20]   The post-conviction court did not commit reversible error by misstating the law

       regarding the propriety of instructing the jury on the lesser-included offense of

       voluntary manslaughter because the court ultimately addressed Johnson’s claim

       under the proper legal standard. Nor did the post-conviction court err by failing

       to specifically address all fifty-three claims Johnson argues he presented because

       Johnson does not identify which issues he claims the court should have

       addressed. Accordingly, we affirm the post-conviction court’s denial of

       Johnson’s petition for post-conviction relief.


       Court of Appeals of Indiana | Memorandum Decision 84A01-1703-PC-491 | July 20, 2018   Page 13 of 14
[21]   Affirmed.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1703-PC-491 | July 20, 2018   Page 14 of 14
