MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be
                                                                               Apr 24 2019, 8:38 am
regarded as precedent or cited before any
court except for the purpose of establishing                                        CLERK
                                                                                Indiana Supreme Court
the defense of res judicata, collateral                                            Court of Appeals
                                                                                     and Tax Court

estoppel, or the law of the case.


APPELLANT, PRO SE                                         ATTORNEYS FOR APPELLEE
Michael Highbaugh                                         Curtis T. Hill, Jr.
Carlisle, Indiana                                         Attorney General of Indiana
                                                          Ian McLean
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael A. Highbaugh,                                     April 24, 2019
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          49A02-1710-PC-2326
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Mark D. Stoner,
Appellee-Petitioner.                                      Judge
                                                          The Honorable Jeffrey L. Marchal,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49G06-9712-PC-183229



Pyle, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2326 | April 24, 2019            Page 1 of 17
                                        Statement of the Case
[1]   Michael Highbaugh (“Highbaugh”) appeals the denial of his petition for post-

      conviction relief. Finding no error, we affirm the post-conviction court’s denial

      of Highbaugh’s petition.


[2]   We affirm.


                                                      Issue
              The sole issue for our review is whether the post-conviction court
              erred in denying Highbaugh’s petition for post-conviction relief.


                                                      Facts
[3]   The underlying facts in this case, taken from the Indiana Supreme Court’s

      opinion in Highbaugh’s direct appeal, are as follows:


              On the evening of December 11, 1997, David Hairston was at his
              home in Indianapolis, as were twenty-year-old Khalalah and
              fifteen-year-old Michael. When the doorbell rang, Khalalah
              answered and observed two men, one of whom was wearing a
              police uniform. She also observed a police car. The two men
              entered the foyer uninvited and requested to search Hairston’s
              home, indicating that other officers were en route with a warrant.
              Hairston refused to let the men search his home until the warrant
              arrived and told them to wait outside. When they refused,
              Hairston demanded their names and badge numbers. The
              uniformed officer stated that his name was “Thompson.”
              Hairston asked “Thompson” where his name badge was, to
              which the officer replied he was not wearing his badge. Hairston
              then brushed aside the officer’s coat and saw a nametag that read
              “Powell.”


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2326 | April 24, 2019   Page 2 of 17
              The man wearing civilian clothing (later identified as Highbaugh)
              then pulled out a gun and put it to Hairston’s head. After
              Hairston refused Highbaugh’s demands to lie down on the floor,
              Highbaugh shot him in the head. He died as a result.

              In the meantime, Khalalah and Michael ran from the foyer into
              the kitchen. Highbaugh chased them and shot Michael in the
              head. The resulting wound was not fatal, and Michael lay
              motionless pretending to be dead. Highbaugh then placed the
              barrel of the gun against Khalalah’s head and pulled the trigger.
              When it misfired, Highbaugh grabbed a knife and stabbed
              Khalalah in the neck approximately ten times. She survived.

              While motionless on the kitchen floor, Michael saw [Myron]
              Powell [(“Powell”)] run to the back of the house. After several
              minutes, he saw Powell run out the door carrying several bags.

      Highbaugh v. State, 773 N.E.2d 247, 250 (Ind. 2002).


[4]   In December 1997, the State charged Highbaugh with murder, felony murder,

      two counts of attempted murder, robbery, and carrying a handgun without a

      license. In early 1998, the State filed an habitual offender enhancement and a

      request for the death penalty. Two attorneys were appointed to represent

      Highbaugh.


[5]   In February 2000, Highbaugh and the State entered into a plea agreement,

      which provided that, in exchange for Highbaugh’s guilty plea to murder and

      two counts of attempted murder, the State would drop the remaining charges

      and the habitual offender enhancement. Highbaugh also promised to cooperate

      fully and truthfully with the State in the prosecution of his co-defendant,

      Powell. The agreement further provided that if Highbaugh failed to cooperate


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2326 | April 24, 2019   Page 3 of 17
      in Powell’s prosecution, the State reserved the right to withdraw from the

      agreement. In addition, the plea agreement provided a sentencing range of

      sixty-five years to life without parole, which would be decided by the trial court

      after a sentencing hearing.


[6]   At the guilty plea hearing held that same day, Highbaugh told the trial court

      that he understood that he was pleading guilty to murdering Hairston and

      attempting to murder Khalalah and Michael and that he was admitting the

      truth and the facts of the murder and attempted murder charges. He also stated

      that he understood that the remaining charges would be dismissed and that

      after a sentencing hearing, the trial court would sentence him within a range

      from sixty-five years to life without parole. The trial court also reviewed the

      provision of the agreement regarding Highbaugh’s cooperation with the State in

      its case against Powell, which Highbaugh also said that he understood.

      Highbaugh assured the trial court that he had reviewed the plea agreement with

      his attorneys before he had signed and initialed it, that he had had sufficient

      time to discuss his case with them, and that he was satisfied with their

      performance on his behalf.


[7]   The trial court explained to Highbaugh that his trial was scheduled to begin in

      three days. The trial court also explained Highbaugh’s sentencing exposure to a

      term of years, to life without parole, or to death if he was tried and convicted at

      trial. Highbaugh told the trial court that he understood these matters and had

      had sufficient time to discuss them with his attorneys before pleading guilty.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2326 | April 24, 2019   Page 4 of 17
[8]   Also at the guilty plea hearing, the trial court asked Highbaugh’s attorneys if,

      based on their discussions with Highbaugh, they had had the opportunity to

      discuss the possible penalties that he faced in connection with the case and

      under the terms of the plea agreement, and they confirmed that they had. The

      trial court also asked the attorneys if they believed that he understood all rights

      and possible sentences in connection with the case, and they responded that

      they did. Both attorneys also told the trial court that they would have been

      prepared to try the case three days later.


[9]   Thereafter, the State set forth the following factual basis for the charges:


              [H]ad this matter gone to trial, the State would have called
              Khalalah Ector . . . who would have testified that on December
              11th of 1997 she was at a home located at 4307 North Sunshine
              Avenue in Indianapolis, Marion County, Indiana. Ms. Ector
              would testify that she believed that home to be occupied by a
              person known to her as David C. Hairston . . . Ms. Ector would
              testify that at approximately 10:30 on December 11th of 1997 two
              men appeared at the door of that home, the door which she
              answered. One of those men was in full police uniform and she
              later identified that person as Myron Powell. The other man
              who was at that door, Ms. Ector later identified as Michael
              Highbaugh. Ms. Ector would testify that the two men engaged in
              conversation with David Hairston, who was the occupant of the
              home, and at some point during the conversation the Defendant,
              Michael Highbaugh, produced a handgun, firing two shots at
              David Hairston. Medical testimony would show that those two
              gunshots killed David Hairston. Ms. Ector would further testify
              that she observed the Defendant, Michael Highbaugh, fire a shot
              at her cousin, Michael Ector, who was also at that home and that
              shot did strike Michael Ector. Ms. Ector would also testify that



      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2326 | April 24, 2019   Page 5 of 17
                the Defendant, Michael Highbaugh, grabbed a knife from the
                kitchen and stabbed her about the neck and throat area.


       (PCR App. Vol. 2 at 66-67). When the State completed the factual basis, the

       trial court asked Highbaugh if the factual basis was true, and Highbaugh

       responded that it was.


[10]   At the end of the guilty plea hearing, the trial court concluded that Highbaugh’s

       guilty plea had been freely and voluntarily given with a full understanding of

       the charges and penalties. The trial court accepted Highbaugh’s plea and

       ordered the preparation of a presentence report. The trial court and the parties

       then discussed setting Highbaugh’s sentencing hearing after Powell’s scheduled

       trial.


[11]   In March 2000, when Highbaugh refused to answer questions during a

       deposition taken by Powell’s counsel, counsel filed a motion to hold Highbaugh

       in contempt. The following week, Highbaugh refused to participate in the

       preparation of his presentence investigation report and told the officer assigned

       to complete the report that “he was going to reject the [p]lea [a]greement

       ‘because [he] didn’t do the crime.’” (Supp. Tr. Vol. 1 at 9). Highbaugh again

       refused to participate in a rescheduled meeting with the officer in April 2000.


[12]   Also in April 2000, Highbaugh filed a pro se motion to withdraw his guilty plea

       wherein he stated that he had had time to reflect on the guilty plea and wanted

       to withdraw it and go to trial on the original charges. Highbaugh specifically

       alleged that “he [had been] forced and lied to in order to take the plea


       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2326 | April 24, 2019   Page 6 of 17
       agreement” and that his attorneys had “used family to influence [the] signing of

       [the] plea.” (Tr. Vol. 5 at 1219). He further alleged that he felt that he was “not

       being properly represented by his counsel” and that there had been “prejudice

       and bias acts committed against him in the court room.” (Tr. Vol. 5 at 1219).

       Highbaugh listed no specific examples in support of his allegations.


[13]   The trial court held a sentencing hearing later that month. At the beginning of

       the hearing, the trial court addressed Highbaugh’s motion to withdraw his

       guilty plea and asked Highbaugh to “tell [it] whatever [he] want[ed] [it] to hear

       regarding [his] motion.” (Tr. Vol 6 at 1258-59). Highbaugh responded that he

       had been “pressured and coerced by [his] attorneys to sign the plea agreement”

       and he had “lied” to the trial court because he had been told that “when the

       Presentence people come that I could tell them that I didn’t do it[.]” (Tr. Vol. 6

       at 1259). The trial court then asked Highbaugh’s attorneys whether they

       believed that Highbaugh had “made a knowing and voluntary waiver of his

       rights when he pled guilty in this case.” (Tr. Vol. 6 at 1260). Both attorneys

       responded affirmatively. The trial court concluded that there was “no doubt in

       [its] mind . . . [that Highbaugh] knew exactly what [he was] doing . . . when

       [he] entered into this plea agreement,” and denied Highbaugh’s petition to

       withdraw his guilty plea. (Tr. Vol. 6 at 1260).


[14]   The next stage of the sentencing hearing focused on the statutory aggravator

       that Hairston’s murder was committed during the commission of a robbery.

       Specifically, at this point, one of Highbaugh’s attorneys “move[d] to exclude

       any evidence . . . that [was] not related to the statutory aggravator, that being an

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2326 | April 24, 2019   Page 7 of 17
       intentional killing during the commission of a [r]obbery.” (Tr. Vol. 6 at 1261).

       The trial court granted the motion and heard testimony that after the shootings,

       Powell ran out of the apartment with a zip-lock bag of marijuana and a brown

       grocery bag. Following the testimony, the trial court concluded that the State

       had proved beyond a reasonable doubt that Highbaugh had killed Hairston

       during the commission of a robbery. The trial court sentenced Highbaugh to

       life without the possibility of parole for the murder conviction.


[15]   The final stage of the sentencing hearing focused on the sentences for the

       attempted murder convictions. After hearing testimony, the trial court found

       the following aggravating factors: (1) Highbaugh’s prior criminal history,

       which included three felonies; (2) his prior attempts at rehabilitation had been

       unsuccessful; (3) Highbaugh’s probation has been revoked in the past; (4)

       Highbaugh was in need of correctional or rehabilitative treatment that could

       best be provided by commitment to a penal facility; (5) the facts and

       circumstances of the case, including the attempt to eliminate three witnesses,

       the commission of a robbery during the attempted killings, and the fact that the

       two attempted murder victims suffered from protracted impairment. The trial

       court also found the following two mitigating factors: (1) Highbaugh had the

       support of family and friends; and (2) Highbaugh was emotionally and

       physically abused as a child. “Weighing these matters out,” the trial court

       sentenced Highbaugh to fifty years for each attempted murder conviction and

       ordered the sentences to run consecutive to each other and with the life without

       parole sentence. (Tr. Vol. 6 at 1375).


       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2326 | April 24, 2019   Page 8 of 17
[16]   Two days after the sentencing hearing, the trial court held a hearing on Powell’s

       motion to hold Highbaugh in contempt. Following the hearing, the trial court

       ordered Highbaugh to answer Powell’s questions and told him that if he refused

       to do so, he could be found in contempt and sentenced for up to six months in

       jail and fined up to $500. When Highbaugh told the trial court that he was

       going to remain silent, the trial court found him to be in contempt, sentenced

       him to six months in jail concurrent with the sentence he was serving, and fined

       him $500.


[17]   Highbaugh appealed his sentence and the finding of contempt. He argued that

       the trial court had erred by ordering the sentences for his attempted murder

       convictions to run consecutive to his life without parole sentence, and that the

       trial court’s sentencing order was deficient because it had not specified and

       articulated the balancing of aggravating and mitigating circumstances. Before

       the Indiana Supreme Court had ruled on these issues, the trial court issued an

       amended sentencing order specifying that Highbaugh’s sentences for attempted

       murder would be served consecutively to each other but concurrently with the

       life without parole sentence. The Indiana Supreme Court subsequently issued

       an order noting that the trial court had “corrected the first problem . . . but [had

       taken] no action with regard to the second problem: the specificity of the

       sentencing order[.]” (P.C.R. App Vol. 2 at 207). The Court remanded

       Highbaugh’s case to the trial court for entry of a new sentencing order, which

       could be appealed with supplemental briefs. In June 2001, the trial court issued

       more specific findings and conclusions on the life without parole sentence.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2326 | April 24, 2019   Page 9 of 17
[18]   In his direct appeal, Highbaugh raised four issues. He first argued that there

       was insufficient evidence to support his life without parole sentence for the

       murder of Hairston. Specifically, he contended that the State had failed to

       prove that he had committed an intentional killing during the commission of a

       robbery. According to Highbaugh, the State had failed to establish that any

       property of value had been taken and had failed to prove that any property was

       taken from the presence of Hairston. The Indiana Supreme Court disagreed,

       pointed out that Highbaugh and Powell had left Hairston’s house with

       packaged marijuana and other bags, and concluded that there was sufficient

       evidence to support the statutory aggravator. Highbaugh, 773 N.E.2d at 251.


[19]   Secondly, Highbaugh contended on appeal that the trial court had wrongfully

       rejected the following proffered mitigators: (1) Hairston facilitated the offense;

       (2) Highbaugh was under Powell’s control; (3) Highbaugh’s life without parole

       sentence was not proportional to Powell’s sixty-five year sentence; and (4)

       Powell was not found guilty of robbery. Third, he argued that his life sentence

       was manifestly unreasonable. The Indiana Supreme Court concluded that the

       trial court did not abuse its discretion in rejecting these mitigators and that

       Highbaugh’s sentence was not manifestly unreasonable. Id. at 252-53.


[20]   Lastly, Highbaugh argued that the trial court erred when it found him in

       contempt for refusing to answer questions from Powell’s counsel. Highbaugh

       specifically argued that he could not be ordered to provide testimony in

       Powell’s case because he possessed a Fifth Amendment right to remain silent so

       as not to incriminate himself. The Indiana Supreme Court concluded that

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2326 | April 24, 2019   Page 10 of 17
       because Highbaugh had expressed his intent to appeal his life sentence, he may

       have retained his privilege with regard to the statutory aggravator. Id. at 254.

       However, the privilege would have extended only to questions that could

       incriminate him on that matter, and Highbaugh could have answered any

       number of questions without further incriminating himself. Id. Because he

       refused to answer any questions, the trial court could properly find him in

       contempt. Id. The Indiana Supreme Court affirmed both Highbaugh’s

       convictions and sentence.


[21]   Highbaugh filed a petition for post-conviction relief in February 2003 and later

       withdrew it. He filed a second petition in May 2016, and amended it in June

       2016 and in March 2017. The post-conviction court held a hearing on

       Highbaugh’s amended petition in May 2017. Highbaugh did not testify or call

       any witnesses. He told the post-conviction court that he just “need[ed] to enter

       some things on the record.” (P.-C.R. Tr. at 3). The post-conviction court asked

       Highbaugh if he was going to “pursue a Petition for Post-Conviction Relief

       alleging ineffective assistance of counsel without calling [his] counsel.” (P.-

       C.R. Tr. at 7). Highbaugh responded that he was because “everything that [he

       was] alleging [was] on the record.” (P.-C.R. Tr. at 7).


[22]   In September 2017, the post-conviction court issued a detailed fourteen-page

       order denying Highbaugh’s petition. Highbaugh now appeals.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2326 | April 24, 2019   Page 11 of 17
                                                    Decision
[23]   At the outset, we note that Highbaugh proceeds pro se. A litigant who

       proceeds pro se is held to the same rules of procedure that trained counsel is

       bound to follow. Smith v. Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009),

       trans. denied, cert. dismissed. One risk a litigant takes when he proceeds pro se is

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

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

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

       waive any rule for the orderly and proper conduct of his appeal. Foley v.

       Mannor, 844 N.E.2d 494, 502 (Ind. Ct. App. 2006). We now turn to the merits

       of Highbaugh’s argument that the post-conviction court erred in denying his

       petition.


[24]   A petitioner who has been denied post-conviction relief faces a rigorous

       standard of review. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001). As such,

       the petitioner must convince the court on review that the evidence as a whole

       leads unerringly and unmistakably to a decision opposite that reached by the

       post-conviction court. Id. at 170. Stated differently, this Court will disturb a

       post-conviction court’s decision as being contrary to law only where the

       evidence is without conflict and leads to but one conclusion, and the post-

       conviction court has reached the opposite conclusion. Id. Further, the

       reviewing court accepts the post-conviction court’s findings of fact unless

       clearly erroneous. Id.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2326 | April 24, 2019   Page 12 of 17
       1.      Insufficient Factual Basis


[25]   Highbaugh first argues that the post-conviction court erred in denying his

       petition because there was an insufficient factual basis to support his plea of

       guilty to murder.        Specifically, he contends that the factual basis should have

       included facts regarding the commission of a robbery.


[26]   A trial court may not accept a plea of guilty unless it determines that a sufficient

       factual basis exists to support the plea. Dewitt, 755 N.E.2d at 172 (citing IND.

       CODE § 35-35-1-3). A factual basis exists where there is evidence about the

       elements of the crime from which a trial court could reasonably conclude that

       the defendant is guilty. Dewitt at 172. The factual basis of a guilty plea need

       not be established beyond a reasonable doubt. Id. Rather, relatively minimal

       evidence can be adequate. Id. In addition, to be entitled to post-conviction

       relief, the defendant must prove that he was prejudiced by the lack of a factual

       basis. Id.


[27]   Here, our review of the charging information reveals that the State charged

       Highbaugh with murder for knowingly killing Hairston by shooting him with a

       handgun. At the guilty plea hearing, the factual basis provided that Highbaugh

       shot Hairston, and that Hairston died as a result of the gunshot. This is

       sufficient evidence for the trial court to reasonably conclude that Highbaugh

       was guilty of murder. To the extent that Highbaugh argues that the factual

       basis is insufficient because the “State made no mention of a commission of a

       robbery,” he is mistaken. (Appellant’s Br. at 19). The commission of a robbery


       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2326 | April 24, 2019   Page 13 of 17
       is not an element of murder.1 Rather, as the State correctly points out, the

       commission of a robbery during a murder is a statutory aggravating sentencing

       factor for the death penalty or a life without parole sentence. See IND. CODE 35-

       50-2-9. In Highbaugh’s direct appeal, the Indiana Supreme Court found that

       there was sufficient evidence set forth in Highbaugh’s sentencing hearing to

       support this statutory aggravating factor and Highbaugh’s life without parole

       sentence.2


       2.       Ineffective Assistance of Appellate Counsel


[28]   Highbaugh also argues that his appellate counsel was ineffective. To prevail on

       a claim of ineffective assistance of appellate counsel, a petitioner must

       demonstrate both that his counsel’s performance was deficient and that the

       petitioner was prejudiced by the deficient performance. Mitchell v. State, 946

       N.E.2d 640, 643 (Ind. Ct. App. 2011), trans. denied. Counsel’s performance is

       deficient if it falls below an objective standard of reasonableness based on




       1
        We note that commission of a robbery or another offense, is an element of felony murder, and this language
       was included in Highbaugh’s felony murder charging information. (Tr. Vol. 1 at 107) (alleging that
       Highbaugh shot Hairston while committing or attempting to commit a robbery). However, the felony
       murder charge was dismissed pursuant to the terms of the plea agreement.
       2
         Highbaugh also argues that: (1) his trial counsel was ineffective for allowing the trial court to accept his
       guilty plea that was not supported by a factual basis; and (2) his plea was unknowingly, involuntary, and
       unintelligent because counsel failed to tell him that the commission of a robbery was an element of murder
       that the State had to prove. These arguments fail because we have already determined that commission of a
       robbery is not an element of murder.
       We further note that Highbaugh’s cursory allegation that his guilty plea was not voluntary because his
       counsel did not advise him that he could receive an additional one-hundred years beyond the terms of his
       guilty plea. This issue became moot before Highbaugh’s direct appeal was decided when the trial court
       corrected its initial consecutive sentencing order and ordered the attempted murder convictions to run
       concurrently with the life without parole sentence.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2326 | April 24, 2019             Page 14 of 17
       prevailing professional norms. Id. To show prejudice, the petitioner must

       establish a reasonable probability that, but for counsel’s unprofessional errors,

       the result of the proceeding would have been different. Id. A reasonable

       probability is a probability sufficient to undermine confidence in the outcome.

       Id.


[29]   The standard of review for a claim of ineffective assistance of appellate counsel

       is the same as for trial counsel. Id. at 644. There are three ways in which

       appellate counsel may be considered ineffective: (1) when counsel’s actions

       deny the defendant his right of appeal; (2) when counsel fails to raise issues that

       should have been raised on appeal; (3) when counsel fails to present claims

       adequately and effectively such that the defendant is in essentially the same

       position after appeal as he would be had counsel waived the issue. Id. To

       establish deficient performance for failing to raise an issue, the petitioner must

       show that the unraised issue was clearly stronger than the issues that were

       raised. Id.


[30]   Here, Highbaugh argues that his appellate counsel failed to raise four issues that

       should have been raised in his direct appeal. He first argues that appellate

       counsel was ineffective for failing to argue that the trial court abused its

       discretion when it imposed “an additional hundred (100) years beyond his life

       without parole sentence[.]” (Highbaugh’s Br. at 29). However, appellate

       counsel raised this issue on direct appeal, and the trial court corrected its error

       before the direct appeal was decided. This issue is therefore res judicata. See

       Ben-Yisrayl v. State, 738 N.E.2d 253, 259 (Ind. 2000) (explaining that when an

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2326 | April 24, 2019   Page 15 of 17
       appellate court decides an issue on direct appeal, the doctrine of res judicata

       precludes its review in post-conviction proceedings).


[31]   Highbaugh also argues that appellate counsel was ineffective for failing to

       challenge the denial of Highbaugh’s motion to withdraw his guilty plea.

       Highbaugh appears to argue that his refusal to answer Powell’s counsel’s

       questions at the deposition was a breach of the plea agreement that required the

       trial court to vacate his guilty plea. Highbaugh has waived appellate review of

       this argument because his brief, conclusory argument is supported neither by

       citation to authority nor cogent argument. See Smith v. State, 822 N.E.2d 193,

       202-03 (Ind. Ct. App. 2005) (“Generally, a party waives any issue raised on

       appeal where the party fails to develop a cogent argument or provide adequate

       citation to authority and portions of the record.”), trans. denied. Waiver

       notwithstanding, we find no error. The plea agreement provided that the State

       reserved the right to withdraw from the agreement if Highbaugh failed to

       cooperate in Powell’s prosecution. Nothing in the agreement required the trial

       court to vacate Highbaugh’s guilty plea. Appellate counsel was not ineffective

       for failing to challenge the denial of Highbaugh’s motion to withdraw his guilty

       plea.3




       3
        Highbaugh also argues that appellate counsel was ineffective for failing to argue that the trial court erred in
       holding him in contempt for failure to answer Powell’s counsel’s questions where the terms of the plea
       agreement required the trial court to vacate the guilty plea. This argument fails because we have already
       determined that nothing in the plea agreement required the trial court to vacate the plea agreement.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2326 | April 24, 2019              Page 16 of 17
[32]   Highbaugh next argues that appellate counsel was ineffective because he failed

       to argue on appeal that the State failed to prove beyond a reasonable doubt the

       statutory sentencing aggravator of robbery for the purposes of his life without

       parole sentence. However, our review of Highbaugh’s direct appeal reveals that

       appellate counsel raised this issue, and the Indiana Supreme Court concluded

       that there was sufficient evidence to support the aggravator. This issue is

       therefore res judicata. See Ben-Yisrayl, 738 N.E.2d at 259.


[33]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2326 | April 24, 2019   Page 17 of 17
