Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
                                                              FILED
                                                           Sep 26 2012, 9:04 am
establishing the defense of res judicata,
collateral estoppel, or the law of the                            CLERK
case.                                                           of the supreme court,
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ATTORNEYS FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                                GREGORY F. ZOELLER
Public Defender of Indiana                      Attorney General of Indiana

JONATHAN O. CHENOWETH                           JAMES B. MARTIN
Deputy Public Defender                          Deputy Attorney General
Indianapolis, Indiana                           Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

RANDY G. COBB,                                  )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )        No. 20A04-1203-PC-117
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Respondent.                     )


                    APPEAL FROM THE ELKHART CIRCUIT COURT
                        The Honorable Terry C. Shewmaker, Judge
                             Cause No. 20C01-1012-PC-25



                                    September 26, 2012
               MEMORANDUM DECISION - NOT FOR PUBLICATION
GARRARD, Senior Judge
          Randy Cobb appeals the denial of his petition for post-conviction relief. His sole

contention is that he received ineffective assistance of counsel at trial because his

attorney failed to object to the court’s Final Instruction 19, which he contends contained

an impermissible Allen charge.1

          Cobb appeals from a negative judgment, and, to the extent his appeal turns on

factual issues, he must convince this Court that the evidence as a whole leads unerringly

and unmistakably to a decision opposite that reached by the post-conviction court. See

Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001). Thus, we will disturb the decision

of the post-conviction court only if the evidence is without conflict and leads only to a

conclusion contrary to the result of the post-conviction court. Id. To establish his claim,

Cobb must show both that counsel’s performance fell below an objective standard of

reasonableness and that but for the error there was a reasonable probability the result of

the proceeding would have been different. See Johnson v. State, 832 N.E.2d 985, 996

(Ind. Ct. App. 2005), trans. denied.

          The questioned portion of the instruction read as follows:
          If you should fail to reach a decision, this case will be left open and
          undecided. Like all cases it must be disposed of at some time. Another
          trial would be a heavy burden on both sides.

          There is no reason to believe that the case can be tried again any better or
          more exhaustively than it has been. There is no reason to believe that more
          evidence or clearer evidence would be produced on behalf of either side.




1
    Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).

                                                       2
          There is no reason to believe that the case would ever be submitted to
          twelve people more intelligent, more impartial or more reasonable than
          you. Any future jury must be selected in the same manner that you were.

Direct Appeal App. p. 141. In support of his argument, Cobb relies on Parish v. State,

838 N.E.2d 495 (Ind. Ct. App. 2005). In that case this Court found that identical

language in a final instruction, together with inadequate preparation of counsel,

constituted ineffective assistance of counsel. Id. at 503.2 We have long held, however,

that an attorney does not provide ineffective assistance for failing to anticipate a future

change in the law. Frasier v. State, 267 Ind. 24, 366 N.E.2d 1166, 1167 (1977); Moore v.

State, 872 N.E.2d 617, 623-24 (Ind. Ct. App. 2007), trans. denied; Shaffer v. State, 674

N.E.2d 1, 7 (Ind. Ct. App. 1996), trans. denied.

          Here, Cobb was tried and convicted in June 2005. Parish was decided December

6, 2005, some six months later. At the time of Cobb’s trial, the controlling precedent was

stated in Broadus v. State, 487 N.E.2d 1298, 1303-04 (Ind. 1986). There, the Court

found that an instruction, closely similar to Final Instruction 19, that was given as a part

of the final instructions rather than after the jury had indicated a deadlock, was harmless

error. It follows, therefore, that the assistance of Cobb’s counsel did not fall below an

objective standard of reasonableness when counsel did not object to the instruction.3

Cobb’s claim of ineffective assistance fails.

          Affirmed.


2
    We express no opinion whether the instruction alone can constitute ineffective assistance.
3
    We compliment Judge Shewmaker on the thoroughness of his findings.

                                                       3
BAKER, J., and MAY, J., concur.




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