MEMORANDUM DECISION                                                         FILED
Pursuant to Ind. Appellate Rule 65(D), this                            Feb 19 2020, 10:56 am

Memorandum Decision shall not be regarded as                                CLERK
precedent or cited before any court except for the                      Indiana Supreme Court
                                                                           Court of Appeals
purpose of establishing the defense of res judicata,                         and Tax Court

collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                 Curtis T. Hill, Jr.
Merrillville, Indiana                                  Attorney General of Indiana
                                                       Tyler G. Banks
                                                       Supervising Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE

    COURT OF APPEALS OF INDIANA

LeVohn Harrison Brown,                                     February 19, 2020
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           19A-PC-2189
                                                           Appeal from the Huntington
        v.                                                 Circuit Court
                                                           The Hon. Davin G. Smith, Judge
State of Indiana,                                          Trial Court Cause No.
                                                           35C01-1806-PC-6
Appellee-Respondent.




Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-2189 | February 19, 2020               Page 1 of 16
                                          Case Summary
[1]   In 2000, LeVohn Brown beat his three-year-old daughter to death, with the

      specific cause of her death being a skull fracture. Prior to trial, Brown was

      examined by Dr. Stephen Ross, Psy.D., who concluded that he was not insane

      when he killed his daughter and was competent to stand trial. Brown was

      convicted of murder and sentenced to life imprisonment without parole. After

      Brown’s first direct appeal, he was resentenced to life imprisonment without

      parole, and his conviction and sentence were affirmed following his second

      direct appeal.

[2]   In September of 2017, Brown filed a petition for post-conviction relief (“PCR”),

      claiming that he had received ineffective assistance of trial and appellate

      counsels. Brown argued that his trial counsel had rendered ineffective

      assistance by failing to emphasize evidence of his mental condition during

      sentencing. Brown contended that appellate counsel had been ineffective for (1)

      failing to claim ineffective assistance of trial counsel and (2) failing to challenge

      the procedure the trial court used when resentencing Brown to life

      imprisonment without parole. The post-conviction court denied Brown’s PCR

      petition in full. Brown contends that the post-conviction court erroneously

      denied his PCR petition. Because we disagree, we affirm.


                            Facts and Procedural History
[3]   The facts supporting Brown’s murder conviction are summarized as follows:

              Throughout the day on Friday, February 4, 2000, LeVohn Brown
              disciplined his three-year-old daughter, MicKenzie, by striking


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2189 | February 19, 2020   Page 2 of 16
               her repeatedly with a wooden paddle. Blows were administered
               to the middle of her back, her lower back and her bottom. Brown
               also struck MicKenzie across the face with his hand and knocked
               on her head as one would knock on a door. When MicKenzie
               did not respond in any way to this punishment, Brown became
               increasingly upset. That evening, when Brown struck MicKenzie
               on the back of the head with the paddle, she fell to the floor and
               Brown yelled at her to get up and stop crying. The next day,
               after another blow, MicKenzie’s eyes failed to focus, her left side
               became numb, and she could neither walk nor control her bodily
               functions. Brown continued to beat MicKenzie throughout the
               weekend, but left town on Monday, February 7th. When Brown
               returned on Thursday, February 10th, the violence resumed.
               Brown repeatedly struck MicKenzie and let her fall when she was
               unable to stand. Throughout these events, Brown did not contact
               anyone regarding MicKenzie’s medical condition, but during the
               investigation told Detective Ron Hoschstetler, from the
               Huntington City Police Department, that he thought she seemed
               “fine.”
               MicKenzie died on Friday, February 11, 2000.
      Brown v. State, 799 N.E.2d 1064, 1065–66 (Ind. 2003).

[4]   On February 14, 2000, the State charged Brown with murder and, on June 7,

      2000, filed an information seeking a sentence of life imprisonment without

      parole because MicKenzie had been younger than twelve when Brown killed

      her. Brown filed a notice of mental disease or defect. See Ind. Code § 35-50-2-

      9(12).

[5]   The trial court then appointed three mental-health experts to examine Brown.

      One of those experts was Dr. Ross, who, after his examination, filed a twenty-

      two-page report of his findings (“the Report”), dated June 20, 2000. Regarding

      the events leading to MicKenzie’s death, Brown told Dr. Ross, “I know I could


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2189 | February 19, 2020   Page 3 of 16
      have handled this better, I just got so angry, I snapped. When I look back, I

      shouldn’t have hit her with the board.” Direct Appeal Appellant’s App. p. 191.

      Brown was also asked whether he had any “mental problems” or

      “psychological difficulties,” to which he responded, “No, in my opinion,

      nothing major going on.” Direct Appeal Appellant’s App. p. 62.

[6]   Dr. Ross also administered psychological testing. During one test called the

      Structured Interview of Reported Symptoms (“SIRS”), Dr. Ross observed

      evidence of malingering, specifically that Brown “attempt[ed …] to over-report

      symptoms.” Direct Appeal Appellant’s App. p 65. From the SIRS testing data,

      Dr. Ross concluded that Brown “[was] not endorsing symptoms of extreme

      psychological disturbances.” Direct Appeal Appellant’s App. p 65. In another

      psychological test, Dr. Ross observed “an attempt on [Brown’s] part to

      exaggerate psychological symptoms.” Direct Appeal Appellant’s App. p 196.

[7]   Dr. Ross also administered a Rorschach inkblot test and made the following

      observations:

              A review of the defendant’s valid protocol suggests that he is
              currently in a state of chronic emotional overload. That is, he
              feels overwhelmed by feelings of anxiety and pessimism. He is
              prone to a distortion of reality which may result in difficulties in
              maintaining an adequate adjustment in some situations for any
              period of time. Though the defendant reported no symptoms of
              psychoses or delusions during the clinical interview, the
              Rorschach suggests the possibility of distorted thinking when
              under moments of high stress and emotional overload. [….] It is
              quite possible that the defendant’s anger at his daughter became
              so intense that his having hit her may have been more of a
              reflexive response than one thoroughly thought out. There


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2189 | February 19, 2020   Page 4 of 16
              appeared to be little pre-meditation associated with this alleged
              offense. However, his behavior and lack of appropriate attention
              to his daughter’s medical needs do appear intentional and
              evidence forethought.
              [….]
              There was one very important feature of the defendant’s
              Rorschach protocol which needs to be understood by the court.
              He is prone to emotional overload and feeling overwhelmed by
              anger and anxiety. It is quite possible that his response to his
              daughter’s statement made to him on the night of the alleged
              offense was one born out of extreme anger and impulsivity.
              When under high moments of stress, he may experience very
              brief moments of distorted reality. However, the defendant’s self-
              presentation during the clinical interview does not suggest that he
              is currently out of contact with reality.
      Direct Appeal Appellant’s App. pp. 68–69.

[8]   Dr. Ross’s report also covered Brown’s history in the Air Force, from which

      Brown had been discharged. The report indicated that the Air Force had found

      two substantiated charges of spousal abuse and one unsubstantiated child-abuse

      charge. In his conclusion that Brown was competent to stand trial and not

      insane when he killed MicKenzie, Dr. Ross opined that “on the date of the

      alleged offense, [Brown] did not appear to evidence any signs of psychoses,

      disordered thinking, or impairment in reality testing such that he was not able

      to appreciate the wrongfulness of the alleged act.” Direct Appeal Appellant’s

      App. p. 73.

[9]   At trial, Brown’s strategy was to admit to hitting his daughter and argue that he

      should be convicted of the lesser-included offense of reckless homicide. The

      State addressed this strategy in its rebuttal closing argument:


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2189 | February 19, 2020   Page 5 of 16
               [Trial Counsel] Swanson again said, this case needs to be
               reserved for the most heinous of crimes. And that’s not the
               situation for a reckless homicide (inaudible). Well, let’s put
               reckless homicide in perspective. Under the law that’s just as
               serious as driving a vehicle when your license has been
               suspended for the rest of your life. Under the law, reckless
               homicide is just as serious as loan-sharking. Under the law,
               reckless homicide is just as serious as someone who signs another
               person’s name to a check and then tries to cash it. That’s how
               serious reckless homicide (inaudible).
       Trial Tr. p. 428. Brown’s trial counsel Donald Swanson objected, arguing that

       the State was impermissibly arguing about penalties in the guilt phase. The trial

       court overruled the objection, and Swanson did not make a motion for a

       mistrial or ask for an admonition.

[10]   The jury found Brown guilty of murder. In the penalty phase Swanson

       admitted, inter alia, the Report. Swanson encouraged the jury to “carefully

       review” and take “careful note” of the Report. Trial Tr. p. 489. The jury

       returned a recommendation for a sentence of life imprisonment without parole.

[11]   At the final sentencing hearing, Swanson again offered the Report into

       evidence. Swanson told the trial court upon tendering the Report that “[i]t was

       submitted, I believe, at the sentencing phase of the uh, life without parole, but I

       would like the Court also to consider it here.” June 4, 2001, Tr. p. 4. The court

       responded, “[the Report] was in evidence at the date of the (indecipherable)—

       15th of March at the second part of the jury trial, and that the Court has seen

       and has read this on several occasions.” June 4, 2001, Tr. p. 4. Swanson

       argued that Brown “had demonstrated to some degree uh, a mental instability

       uh, while it falls far short of a legal defense uh, it certainly should be a

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2189 | February 19, 2020   Page 6 of 16
       consideration in this case.” June 4, 2001, Tr. p. 25. Swanson also argued that

       Brown had “no intent to kill his daughter when that blow uh, that fractured her

       skull was administered.” June 4, 2001, Tr. p. 25. In its order imposing life

       imprisonment without parole, the trial court found Brown’s honorable

       discharge from the military and lack of criminal history to be mitigating

       circumstances. The trial court found no other mitigating circumstances and

       that that the aggravating circumstance of MicKenzie’s age “far outweigh[ed]

       the mitigating circumstances.” Direct Appeal Supp. Appellant’s App. p. 256.

[12]   On direct appeal, Brown argued, and the State conceded, that the correct

       statutory sentencing factors for imposing a sentence of life imprisonment

       without parole had not been considered. Consequently, the Indiana Supreme

       Court ordered a new sentencing. Initially, the trial court issued a first amended

       sentencing order and imposed a sixty-five-year sentence. When the State

       objected, the trial court vacated this first amended order and set a new

       sentencing hearing. After this hearing, the trial court re-imposed a sentence of

       life imprisonment without parole.

[13]   Brown appealed a second time, arguing that the prosecutor had committed

       fundamental error by comparing reckless homicide to other crimes of the same

       punishment level. Brown, 799 N.E.2d at 1066. The Indiana Supreme Court

       concluded that, had counsel asked for an admonition, “it would have been

       appropriate for the trial court to instruct the jury that the prosecutor’s

       comments should be disregarded or that the penalty imposed for crimes may

       vary widely and the appropriate remedy is a matter for the court, not the jury,



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2189 | February 19, 2020   Page 7 of 16
       to consider.” Id. The Indiana Supreme Court ultimately concluded, however,

       that these improper comments did not rise to the level of fundamental error. Id.

       at 1067–68.

[14]   On September 22, 2017, Brown filed a petition for post-conviction relief

       (“PCR”). In his PCR petition, Brown made allegations of ineffectiveness of

       both trial and appellate counsels. Brown argued that his trial counsel was

       ineffective for “failing to present sufficient evidence regarding [his] mental

       health status of the sentencing hearing.” PCR Appellant’s App. p. 10. As for

       appellate counsel, Brown alleged that

               [a]ppellate counsel was ineffective due to failure to raise the issue
               of ineffective assistance of trial counsel for failing to present
               available evidence concerning Mr. Brown’s mental health at his
               sentencing hearing. Appellate counsel was also ineffective by
               failing to address the issue of the trial court’s sentencing Mr.
               Brown to a term of years at his second sentencing hearing and
               then, following objection by the state, issuing an amended order
               sentencing Mr. Brown to life incarceration without the
               opportunity for parole.
       PCR Appellant’s App. p. 10.

[15]   On May 14, 2019, the post-conviction court held an evidentiary hearing on

       Brown’s PCR petition. Swanson testified that he had represented defendants in

       twenty to twenty-five murder cases before Brown’s case. When asked whether

       the information in the Report could have been used, Swanson responded, “I

       think it could have been used. Would it have been effective? And my view was

       it would not have been effective.” PCR Tr. Vol. III p. 30. Swanson further

       added that he did not use the Report as a point of argument because he


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2189 | February 19, 2020   Page 8 of 16
       “[p]robably didn’t feel at the time it would do any good with Judge McIntosh.”

       PCR Tr. Vol. III p. 38. Swanson also testified that he had spoken to Dr. Ross

       before trial, even though he was not called as a witness.

[16]   Appellate counsel Gregory Lewis also testified. Lewis had spent his entire

       career with the State Public Defender’s Office, starting in 1992, and had

       exclusively done appellate work in that time. When asked how he selected

       which issue to raise, Lewis responded that he “went with the only thing that

       [he] felt had a chance of succeeding at some level[,]” i.e., the prosecutorial-

       misconduct argument. PCR Tr. Vol. III p. 51. On August 26, 2019, the post-

       conviction court denied Brown’s PCR petition in full.


                                  Discussion and Decision
                                              Standard of Review
[17]   Brown contends the post-conviction court erred in denying his PCR petition.

       Our standard for reviewing the denial of a PCR petition is well-settled:

               In reviewing the judgment of a post-conviction court, appellate
               courts consider only the evidence and reasonable inferences
               supporting its judgment. The post-conviction court is the sole
               judge of the evidence and the credibility of the witnesses. To
               prevail on appeal from denial of post-conviction relief, the
               petitioner must show that the evidence as a whole leads
               unerringly and unmistakably to a conclusion opposite to that
               reached by the post-conviction court. […] Only where the
               evidence is without conflict and leads to but one conclusion, and
               the post-conviction court has reached the opposite conclusion,
               will its findings or conclusions be disturbed as being contrary to
               law.



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2189 | February 19, 2020   Page 9 of 16
       Hall v. State, 849 N.E.2d 466, 468, 469 (Ind. 2006) (internal citations and

       quotations omitted).

                     I. Ineffective Assistance of Trial Counsel
[18]   Brown contends that he received ineffective assistance of trial counsel. We

       review claims of ineffective assistance of counsel based upon the principles

       enunciated in Strickland v. Washington, 466 U.S. 668 (1984):

               Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
               L. Ed. 2d 674 (1984), a claim of ineffective assistance of counsel
               requires a showing that: (1) counsel’s performance was deficient
               by falling below an objective standard of reasonableness based on
               prevailing professional norms; and (2) counsel’s performance
               prejudiced the defendant so much that “there is a reasonable
               probability that, but for counsel’s unprofessional errors, the result
               of the proceeding would have been different.” Id. at 687, 694,
               104 S. Ct. 2052; Lowery v. State, 640 N.E.2d 1031, 1041 (Ind.
               1994). […] Failure to satisfy either prong will cause the claim to
               fail. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999).
       French v. State, 778 N.E.2d 816, 824 (Ind. 2002).

[19]   Moreover, counsel is given wide discretion in determining strategy and tactics,

       and therefore courts will accord these decisions deference. Timberlake v. State,

       753 N.E.2d 591, 603 (Ind. 2001). “A strong presumption arises that counsel

       rendered adequate assistance and made all significant decisions in the exercise

       of reasonable professional judgment.” Id. “Whether a lawyer performed

       reasonably under the circumstances is determined by examining the whole of

       the lawyer’s work on a case.” Oliver v. State, 843 N.E.2d 581, 591 (Ind. Ct.

       App. 2006), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2189 | February 19, 2020   Page 10 of 16
[20]   Brown notes that Dr. Ross found, inter alia, that the results of the Rorschach

       test suggested the possibility of distorted thinking when under moments of high

       stress and emotional overload and that Brown’s anger at his daughter became

       so intense that his hitting of her may have been more of a reflexive response

       than one that was well thought out. Brown argues that Swanson was

       ineffective for failing to argue at sentencing that Brown was under the influence

       of extreme mental or emotional disturbance when the murder was committed

       and that Brown’s capacity to appreciate the criminality of his conduct or to

       conform that conduct to the requirements of law was substantially impaired as

       a result of mental disease or defect.

[21]   For several reasons, we conclude that Swanson’s performance was not

       deficient. First, further focus on the Report was unnecessary, as Swanson

       admitted it and urged the trial court to consider it. Swanson also specifically

       argued that Brown was suffering from “a mental instability” and that should

       “certainly” be considered by the trial court. June 4, 2001, Tr. p. 25. Moreover,

       when the Report was admitted, the trial judge stated that he had seen it and

       read it on several occasions. With the trial court stating its familiarity with the

       Report due to multiple readings, we cannot say that it was deficient

       performance to decline to belabor the point. Cf. Bradford v. State, 988 N.E.2d

       1192, 1202 (Ind. Ct. App. 2013) (“His counsel could have reasonably decided

       that using the officer’s deposition testimony to further impeach [a witness]

       would belabor the point and distract the jury[.]”), trans. denied. Indeed,

       Swanson’s approach to Brown’s sentencing appears to reflect this concern,



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2189 | February 19, 2020   Page 11 of 16
       namely, that emphasizing the Report would not have been effective with the

       sentencing judge in this case. As mentioned, trial counsel is given wide

       discretion in determining strategy and tactics, and therefore courts will afford

       these decisions deference. See Timberlake, 753 N.E.2d 603. Brown points to

       nothing in the record that would cause us to question the reasonableness of

       Swanson’s approach.

[22]   Second, emphasizing the Report would almost certainly have had the effect of

       emphasizing those portions of the Report that undercut Brown’s claim of severe

       mental illness or did not reflect well on Brown for other reasons. For one thing,

       the Report indicated that Brown was malingering or exaggerating symptoms in

       two of the psychological tests that he took. Moreover, the Report related that

       “[w]hen recounting the circumstances around his daughter’s death, [Brown]

       evidenced no tearfulness or excessive guilt[,]” which could easily be seen as a

       lack of remorse. Direct Appeal Appellant’s App. p. 62. The Report also

       recounted that Brown had had two substantiated allegations of spousal abuse

       made against him when he was in the Air Force. While the Report lends some

       support to a claim of serious mental-health issues, it also contained much

       information that undercut that claim and otherwise cast Brown in a negative

       light. In the end, we conclude that Swanson’s performance was not deficient

       for failing to emphasize the Report in his sentencing argument.

[23]   Even if Swanson’s performance had been deficient, Brown has failed to

       establish that could have been prejudiced thereby. To the extent that the Report

       mentions “chronic emotional overload[,]” Ross defined this term as being



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2189 | February 19, 2020   Page 12 of 16
       “overwhelmed by feelings of anxiety and pessimism.” Direct Appeal

       Appellant’s App. p. 68. Evidence that a person was anxious and pessimistic

       when he beat his three-year-old daughter to death would seem to be

       insignificant when compared with the gruesome aggravating circumstance.

       Further, it seems to us that “anxiety and pessimism” by itself does not meet the

       statutory mitigating circumstances of being under the influence of extreme

       mental or emotional disturbance when the murder was committed or show that

       Brown’s capacity to appreciate the criminality of his conduct was substantially

       impaired by a mental disease or defect. Ind. Code § 35-50-2-9(c)(2), -9(c)(6); see

       Mull v. State, 770 N.E.2d 308, 315, 315 n.3 (Ind. 2002) (affirming the rejection

       of these two mitigating circumstances when the defense’s psychologist

       diagnosed the defendant with borderline personality disorder, alcohol

       dependence, impulsiveness, immaturity, depression, disassociation, difficulty in

       decision making, impaired memory skills, disengagement, impoverishment of

       self-interest and law intelligence). Neither Brown’s argument nor our review of

       the record convinces us that emphasizing a small portion of Dr. Ross’s

       extensive report would have created a reasonable probability of a different

       sentence from the trial court judge.

                II. Ineffective Assistance of Appellate Counsel
[24]   We review claims of ineffective assistance of appellate counsel using the same

       standard applicable to claims of trial counsel ineffectiveness. Ben-Yisrayl v.

       State, 729 N.E.2d 102, 106 (Ind. 2000). The petitioner must show that appellate

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



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2189 | February 19, 2020   Page 13 of 16
       prejudice. Id. Ineffective assistance claims at the appellate level of proceedings

       generally fall into three basic categories: (1) denial of access to an appeal; (2)

       waiver of issues; and (3) failure to present issues well. Bieghler v. State, 690

       N.E.2d 188, 193-95 (Ind. 1997).

[25]   To prevail on a waiver-of-issues claim of ineffectiveness, “‘the defendant must

       overcome the strongest presumption of adequate assistance and judicial scrutiny

       is highly deferential.’” Garrett v. State, 992 N.E.2d 710, 724 (Ind. 2013) (quoting

       Ben-Yisrayl, 738 N.E.2d 253, 260–61 (Ind. 2000)). This is because the decision

       of which issues to raise “is one of the most important strategic decisions to be

       made by appellate counsel.” Bieghler, 690 N.E. 2d at 193. “Accordingly, when

       assessing these types of ineffectiveness claims, reviewing courts should be

       particularly deferential to [a] decision to exclude certain issues in favor of

       others, unless such a decision was unquestionably unreasonable.” Id. at 194.

[26]   We must determine “whether the unraised issues are significant and obvious

       from the face of the record and […] whether the unraised issues are ‘clearly

       stronger’ than the raised issues.” Garrett, 992 N.E.2d at 724 (citing Timberlake,

       753 N.E.2d at 605–06). If deficiency is proved, then the prejudice analysis

       “requires an examination of whether ‘the issues which […] appellate counsel

       failed to raise would have been clearly more likely to result in reversal or an

       order for a new trial.’” Id. (quoting Bieghler, 690 N.E.2d at 194). Again, we

       afford significant deference to the decisions of appellate counsel regarding

       which claims to raise, as “the process of winnowing out weaker claims on

       appeal and focusing on those more likely to prevail, far from being evidence of


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2189 | February 19, 2020   Page 14 of 16
       incompetence, is the hallmark of effective appellate advocacy.” Burger v. Kemp,

       483 U.S. 776, 784 (1987) (quoting Smith v. Murray, 477 U.S. 527, 536 (1986))

       (quotation marks omitted).

[27]   Brown argues that his appellate counsel was ineffective for failing to argue that

       the trial court abused its discretion in sentencing him. This claim, however, is

       waived for a failure to raise it below. The post-conviction rules require that all

       grounds for relief must be pled in the PCR petition. Ind. Post-Conviction Rule

       1(8) (“All grounds for relief available to a petitioner under this rule must be

       raised in his original petition.”). Failing to plead a ground for relief results in

       waiver pursuant to the post-conviction rules and the principle that new issues

       may not be raised for the first time on appeal. Id.; see also Canaan v. State, 683

       N.E.2d 227, 235 (Ind. 1997) (citing Howard v. State, 467 N.E.2d 1, 2 (Ind. 1984))

       (“[C]laims not advanced until appellant’s brief in an appeal from the denial of

       post-conviction relief are waived.”). In his PCR petition, Brown contended that

       his appellate counsel was ineffective for (1) not arguing that trial counsel was

       ineffective for failing to emphasize Brown’s mental-health issues at sentencing

       and (2) failing to challenge the process by which Brown was first resentenced to

       a term of years before the trial court re-imposed a sentence of life imprisonment

       without parole. On appeal, he claims a different basis for appellate counsel’s

       ineffectiveness, that counsel should have raised the trial court’s failure to

       identify any mental-health issues as a mitigating circumstance. Because this

       was not the ground advanced in Brown’s PCR petition and decided by the post-

       conviction court, it is waived for appellate consideration.



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2189 | February 19, 2020   Page 15 of 16
[28]   In any event, Brown does not even argue, much less establish, that the claim

       that the trial court abused its discretion in sentencing him was significant and

       obvious in the record, nor does he argue that this issue was clearly stronger than

       the prosecutorial-misconduct issue that was raised. To obtain relief on an

       ineffective-assistance-of-counsel claim, Brown must establish both deficient

       performance and prejudice, Ben-Yisrayl, 729 N.E.2d at 106, and, as the State

       points out, Brown has essentially failed to argue deficient performance. Brown

       has failed to establish that he received ineffective assistance of appellate

       counsel.

[29]   We affirm the judgment of the post-conviction court.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2189 | February 19, 2020   Page 16 of 16
