      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                           FILED
      regarded as precedent or cited before any                                  Jul 10 2019, 9:05 am

      court except for the purpose of establishing                                    CLERK
      the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court
      estoppel, or the law of the case.


      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      David Lewicki                                             Curtis T. Hill, Jr.
      Pendleton, Indiana                                        Attorney General of Indiana
                                                                J.T. Whitehead
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      David Lewicki,                                            July 10, 2019
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                18A-PC-2356
              v.                                                Appeal from the
                                                                Madison Circuit Court
      State of Indiana,                                         The Honorable
      Appellee-Respondent.                                      Mark Dudley, Judge
                                                                Trial Court Cause No.
                                                                48C06-1602-PC-8



      Kirsch, Judge.


[1]   David Lewicki (“Lewicki”) appeals the denial of his petition for post-conviction

      relief raising the following restated issues for our review:


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2356 | July 10, 2019                      Page 1 of 13
              I.       Whether Lewicki received ineffective assistance of counsel
                       at the trial and appellate level;


              II.      Whether Lewicki should be granted relief due to newly
                       discovered evidence; and


              III.     Whether Lewicki’s habitual offender enhancement should
                       be vacated.


[2]   We affirm.


                                  Facts and Procedural History
[3]   The facts relating to Lewicki’s conviction as written in an unpublished decision

      from his direct appeal are the following:


              Very late on the evening of December 5, 2011, Lewicki, his
              girlfriend Brittany Wellman, his friend Steven Browning, and
              Browning’s girlfriend Jennifer Sprinkle, needed gas money and
              devised a plan to get some from Humberto Pelayo, an
              acquaintance of Wellman. Lewicki drove the group to Pelayo’s
              trailer in Elwood, where the women lured him to the car with the
              ruse that they were going to buy marijuana. Browning, who was
              agitated that Pelayo had sex with Sprinkle in the trailer before
              leaving, told Lewicki that they would tell Pelayo about buying
              marijuana, but would instead drive him to a remote spot in the
              country and leave him stranded after stealing his money.


              Following Browning’s directions, Lewicki drove the group to a
              pig farm and parked between a shed and the residence. After
              Lewicki ordered the frightened Pelayo out of the car, Browning
              and Sprinkle began to beat the victim. Browning was hitting
              Pelayo in the head with a machete Lewicki had previously seen
              in the car when Lewicki approached and grabbed Pelayo’s hand

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2356 | July 10, 2019   Page 2 of 13
        demanding all of his money. At that point, Lewicki received a
        deep cut to his forearm, which began bleeding heavily. He
        retreated to the car.


        Despite Pelayo’s severe injuries including large gashes to his
        scalp, he walked to a residence to ask for help, leaving a
        significant amount of blood on the porch and doorbell, but no
        one answered. A passerby telephoned for help after seeing
        Pelayo along the roadway.


        The four perpetrators sped away with Wellman at the wheel. As
        she drove the group to St. Vincent Mercy Hospital, Browning
        and Sprinkle came up with stories Lewicki could use to explain
        his injury. Around 2 a.m., Elwood Police Detective Nicholas
        Oldham was leaving the hospital on an unrelated matter when he
        encountered Wellman and Lewicki in the parking lot. Asked
        what happened, Lewicki claimed he did not remember, and
        Wellman said Lewicki had been in a fight in the country and
        been robbed. Lewicki’s story later changed when he told
        Madison County Sheriff’s Deputy Juan Galan that while driving
        down a country road with Wellman they encountered two men
        fighting and Lewicki was injured trying to stop the fight.


        At that point officers considered Lewicki a victim and the three
        others witnesses. They interviewed Browning and Sprinkle. All
        four stories conflicted. Browning’s and Sprinkle’s clothing was
        stained with blood and dirt, and their hands showed blood and
        abrasions.


        Meanwhile, responding to a dispatch, two officers encountered
        Pelayo walking along the roadside, with deep lacerations to his
        scalp and the hood of his jacket saturated in blood. His money
        was still in an interior pocket of his jacket. Transported to St.
        Vincent Mercy, Pelayo told Deputy Galan that a girl he knew
        had asked him for money, that he had left with her and others,

Court of Appeals of Indiana | Memorandum Decision 18A-PC-2356 | July 10, 2019   Page 3 of 13
        after which he was grabbed by the throat and attacked with a
        knife. Pelayo recalled seeing the image of a pig on the side of a
        building during the attack.


        Gary Davis, who owned the residence Pelayo had approached
        seeking help, called in to report the blood on his porch. When
        officers responded to Davis’s residence and the spot where
        Pelayo was found, they managed to locate the building at the pig
        farm where Pelayo was attacked. Officers recovered Pelayo’s
        shoes and hat, and Sprinkle’s purse in the grass. Despite rainy
        conditions, the gravel driveway showed fresh tire tracks.


        As Lewicki’s deep laceration was being sutured, the doctor was
        notified that a patient with severe head trauma had been
        admitted. Lewicki, who until that point had been reluctant to
        explain his injury to the doctor and was generally
        uncommunicative, immediately became interested in the new
        patient, repeatedly inquiring if he was “still alive.” Tr. at 450.
        Lewicki was initially given a low dose of Morphine and later a
        low dose of Dilaudid because he was still in pain. Lewicki did
        not display any adverse reactions to the medication and spoke
        clearly with his doctor.


        Pelayo suffered three very large lacerations to his scalp, bleeding
        on his brain, a dislocated right shoulder, and a punch-like
        laceration to his left groin. His depressed skull fracture was
        indicative of a brain injury. He continues to experience a lot of
        head pain and sometimes has difficulty thinking clearly.


        Police searched Sprinkle’s vehicle after obtaining her consent.
        They found the machete on the front passenger floorboard where
        Browning had been seated on the way to the hospital. A smaller
        green-handled folding knife, with its blade extended, was located
        in the back seat where Lewicki had sat. Cell phones owned by
        Sprinkle, Browning, and Wellman were located in the car;

Court of Appeals of Indiana | Memorandum Decision 18A-PC-2356 | July 10, 2019   Page 4 of 13
                 Pelayo’s cell phone was found in Sprinkle’s possession. DNA
                 testing of various items, including the machete, the smaller knife,
                 Browning’s clothing, and Lewicki’s clothing, revealed evidence
                 connecting Pelayo with Browning and Lewicki.


                 After Lewicki was discharged from the hospital, he was
                 transported to the Elwood Police Department, where he waived
                 his Miranda rights and gave a recorded statement admitting he
                 knew of the plan to rob Pelayo. The State charged Lewicki with
                 attempted robbery causing serious bodily injury, attempted
                 robbery using a deadly weapon, and being an habitual offender.
                 A jury found Lewicki guilty as charged, and the court imposed
                 an aggregate sentence of sixty-five years.


      Lewicki v. State, No. 48A04-1501-CR-30, *1-*2 (Ind. Ct. App. Nov. 4, 2015).


[4]      On direct appeal, Lewicki raised the issues of ineffective assistance of trial

         counsel, evidentiary rulings, and incorrect jury instructions. Id. *3-*4. We

         denied relief on all claims.


[5]      Lewicki filed a petition for post-conviction relief on February 12, 2016, and the

         trial court heard the petition on June 26, 2017. Appellant’s App. Vol. II at 41; Tr.

         at 2. On August 13, 2018, the post-conviction court issued its findings of facts

         and conclusions of law, denying relief in part and granting relief in part.

         Appellant’s App. Vol. IV at 224. It denied relief on Lewicki’s contention that

         appellate counsel was ineffective. However, finding that Lewicki’s second

         conviction of robbery, as a Level B felony, violated the prohibition on double

         jeopardy, it vacated that conviction. Lewicki now appeals the post-conviction

         court’s partial denial of his petition.


         Court of Appeals of Indiana | Memorandum Decision 18A-PC-2356 | July 10, 2019   Page 5 of 13
                                     Discussion and Decision
[6]   Post-conviction proceedings do not afford the petitioner an opportunity for a

      super appeal. Rather, they provide the opportunity to raise issues that were

      unknown or unavailable at the time of the original trial or the direct appeal.

      Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164

      (2002); Wieland v. State, 848 N.E.2d 679, 681 (Ind. Ct. App. 2006), trans. denied,

      cert. denied, 549 U.S. 1038 (2006). The proceedings do not substitute for a direct

      appeal and provide only a narrow remedy for a subsequent collateral challenges

      to convictions. Ben-Yisrayl, 738 N.E.2d at 358. The post-conviction petitioner

      bears the burden of proving the grounds by a preponderance of the evidence.

      Ind. Post-Conviction Rule1(5). Issues not raised on direct appeal are barred

      from being raised in post-conviction proceedings. Bunch v. State, 778 N.E.2d

      1285, 1289 (Ind. 2002).


[7]   When a petitioner appeals the denial of post-conviction relief, he appeals a

      negative judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007),

      trans. denied. The petitioner must establish that the evidence as a whole leads to

      a conclusion contrary to that of the post-conviction court. Id. We will disturb a

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

      without conflict, leads to but one conclusion, and the post-conviction has

      reached the opposite conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind.

      Ct. App. 2008), trans. denied. The post-conviction court is the sole judge of the

      weight of the evidence and the credibility of witnesses. Lindsey v. State, 888

      N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied. We accept the post-

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2356 | July 10, 2019   Page 6 of 13
      conviction court’s findings of fact unless they are clearly erroneous, but we do

      not defer to its conclusions of law. Fisher, 878 N.E.2d at 463.


                   I.       Ineffective Assistance of Appellate Counsel
[8]   When evaluating a claim of ineffective assistance of counsel, we apply the two-

      part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Perry v.

      State, 904 N.E.2d 302, 308 (Ind. Ct. App. 2009) (citing Pinkins v. State, 799

      N.E.2d 1079, 1093 (Ind. Ct. App. 2003), trans. denied), trans. denied. First, the

      petitioner must show that counsel’s performance was deficient. Id. This

      requires a showing that counsel’s representation fell below an objective

      standard of reasonableness and that the errors were so serious that they resulted

      in a denial of the right to counsel guaranteed by the Sixth and Fourteenth

      Amendments. Id. Second, the petitioner must show that the deficient

      performance resulted in prejudice. Id. To establish prejudice, a petitioner must

      show that there is 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. The two prongs of the Strickland test are separate and independent inquiries.

      Manzano v. State, 12 N.E.3d 321, 325 (Ind. Ct. App. 2014), trans. denied, cert.

      denied, 135 S. Ct. 2376 (2015). “Thus, ‘[i]f it is easier to dispose of an

      ineffectiveness claim on the ground of lack of sufficient prejudice . . . that

      course should be followed.’” Id. (quoting Timberlake v. State, 753 N.E.2d 591,

      603 (Ind. 2001), cert. denied, 537 U.S. 243 (1998)).



      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2356 | July 10, 2019   Page 7 of 13
[9]    Counsel’s performance is presumed effective. The petitioner must offer strong

       and convincing evidence to overcome this presumption. Williams v. State, 771

       N.E.2d 70, 73 (Ind. 2002). We will not speculate as to what may or may not

       have been an advantageous trial strategy, as counsel should be given deference

       in choosing a trial strategy that, at the time and under the circumstances,

       seemed best. Perry, 904 N.E.2d at 308 (citing Whitener v. State, 696 N.E.2d 40,

       42 (Ind. 1998)). Isolated omissions or errors, poor strategy, or bad tactics do

       not necessarily render representation ineffective. Shanabarger v. State, 846

       N.E.2d 702, 708 (Ind. Ct. App. 2006), trans. denied.


[10]   There are three recognized categories of appellate counsel ineffectiveness: “(1)

       denying access to an appeal; (2) failing to raise issues; and (3) failing to present

       issues completely.” Timberlake, 753 N.E.2d at 604. “The post-conviction court

       must conclude that appellate counsel’s performance was deficient and that, but

       for the deficiency of appellate counsel, trial counsel’s performance would have

       been found deficient and prejudicial.” Id. It was Lewicki’s burden to prove

       both elements of ineffective assistance of counsel concerning both the trial and

       appellate counsel in post-conviction court. Id.


[11]   Lewicki first argues1 that his appellate counsel was ineffective for failing to

       argue that trial counsel should have raised issues concerning his Sixth




       1
         On appeal, Lewicki also argues that his trial counsel was ineffective. However, the issue of ineffective trial
       counsel was raised on direct appeal. Issues raised on direct appeal are foreclosed from being raised again in
       post-conviction proceedings. Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008). Therefore, we will not address
       that issue.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2356 | July 10, 2019                       Page 8 of 13
       Amendment right to a speedy trial. Appellant’s Br. at 27. Pursuant to Criminal

       Rule 4(B), “[A] defendant held in jail on an indictment or an affidavit shall

       move for an early trial . . . ” Ind. Crim. R. 4. A defendant who does not object

       to a trial being held outside the one-year requirement has waived his right to

       discharge. Diederich v. State, 702 N.E.2d 1074, 1074 (Ind. 1998). Here, Lewicki

       never filed a motion for a speedy trial. Appellant’s App. Vol. IV at 221. Because

       he failed to do so, his claim was waived. Lewicki’s trial was continued, but it is

       not clear as to whether this was the result of court congestion or at Lewicki’s

       counsel’s request. Id. No matter the reason, Lewicki did not object to the

       continued trial date that was set outside of the one-year limit stated in Criminal

       Rule 4(C). Id. Because Lewicki did not object to his trial being set outside the

       one-year requirement, he waived his right to discharge.


[12]   Lewicki also claims that his appellate counsel was ineffective because counsel

       did not raise issues of prosecutorial misconduct, evidentiary rulings, and jury

       instructions. Appellant’s Br. at 25, 37, 43-44. Claims that have been previously

       raised and rejected are precluded by the res judicata doctrine. Wallace v. State,

       820 N.E.2d 1261, 1263 (Ind. 2005). Here, Lewicki’s appellate counsel raised

       issues of prosecutorial misconduct, evidence admitted at trial, and jury

       instructions on direct appeal. Appellant’s App. Vol. IV at 222. Because these

       issues were raised and decided on direct appeal, Lewicki is barred from raising

       them again in his post-conviction petition.


[13]   Finally, Lewicki argues that his appellate counsel was ineffective for failing to

       raise the issue of consecutive habitual offender enhancements. Appellant’s Br. at

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2356 | July 10, 2019   Page 9 of 13
       42. The post-conviction court noted that one of Lewicki’s habitual offender

       enhancements was previously vacated and he no longer faces consecutive

       enhancements. Appellant’s App. Vol. IV at 222-23. As a result, consecutive

       habitual offender enhancements were not at issue.


[14]   In addition to his failure to demonstrate that his appellate counsel was

       ineffective, Lewicki would not be able to show prejudice. A court will not find

       deficient performance if some of counsel’s decisions to raise certain issues

       instead of others were reasonable “in light of the facts of the case and precedent

       available to counsel when that choice was made.” Lewis v. State, 116 N.E.3d

       1144, 1160 (quoting Bieghler, 690 N.E.2d at 194). Here, Lewicki’s appellate

       counsel testified at the post-conviction petition hearing that in his years of

       experience, the “shotgun approach” does not typically succeed. Tr. at 38. He

       stated that raising every issue on appeal is not likely to succeed and that he

       narrows the issues raised on appeal to the ones most likely to win. Id.

       Lewicki’s appellate counsel’s strategy did not fall below an objective standard of

       reasonableness and Lewicki has failed to show that the decisions of his

       appellate counsel would have resulted in a different outcome and has failed to

       demonstrate ineffective assistance of appellate counsel.2




       2
         Lewicki additionally argues that his appellate counsel was ineffective for failing to raise issues concerning
       amendments to the charging information and double jeopardy. However, Lewicki’s second charge of
       robbery, a Level B felony, was vacated by the post-conviction court. Appellant’s App. Vol. IV at 224.
       Therefore, there is no need to address either of these issues as Lewicki has already obtained the relief
       requested.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2356 | July 10, 2019                       Page 10 of 13
                                 II.      Newly Discovered Evidence
[15]   Newly discovered evidence mandates a new trial when a defendant

       demonstrates that: (1) the evidence has been discovered since trial; (2) it is

       material and relevant; (3) it is not cumulative; (4) it is not merely impeaching;

       (5) it is not privileged or incompetent; (6) due diligence was used to discover it

       in time for trial; (7) it is worthy of credit; (8) it can be produced upon a retrial of

       the case; and (9) it will probably produce a different result at trial. Whedon v.

       State, 900 N.E.2d 498, 504 (Ind. Ct. App. 2009). “We ‘analyze[ ] these nine

       factors with care, as the basis for newly discovered evidence should be received

       with great caution and the alleged new evidence carefully scrutinized.’” Id.

       (quoting Taylor, 840 N.E.2d 324, 330). The petitioner for post-conviction relief

       bears the burden of showing that all nine requirements are met. Id. (emphasis

       in original).


[16]   Lewicki argues that evidence from a cell phone constituted newly discovered

       evidence which would have led to facts more favorable to the defense and

       would have resulted in a different outcome at trial. Appellant’s Br. at 47-48.

       Lewicki specifically argues that the evidence from the cell phone, including

       pictures and text messages, would have shown communications and a

       relationship between the victim, Pelayo, and co-defendant Jennifer Sprinkle

       (“Sprinkle”). Id. Lewicki argues that this evidence could have been used to

       impeach the victim.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2356 | July 10, 2019   Page 11 of 13
[17]   The State argues that Lewicki has waived this argument because Lewicki did

       not present this issue to the post-conviction court and is now raising it for the

       first time on appeal. We agree. “Issues not raised in a petition for post-

       conviction relief many not be raised for the first time on appeal.” Emerson v.

       State, 812 N.E.2d 1090, 1098-99 (Ind. Ct. App. 2004). “The failure to raise an

       alleged error in the petition waives the right to raise the issues on appeal.” Id. at

       1099. Lewicki failed to raise the issue of newly discovered evidence in his

       petition to the post-conviction court and raises it for the first time on appeal.

       Because Lewicki failed to raise the issue in his original petition, he has waived

       his right to raise the issue now.


[18]   Nevertheless, even if Lewicki had raised the issue of newly discovered evidence

       at the post-conviction court, his argument would fail. Lewicki concedes that

       the communications between co-defendant Sprinkle and the victim would

       merely be for impeaching purposes. Lewicki’s “new” evidence is solely for

       impeaching a witness, and this does not meet the standards for newly

       discovered evidence as articulated in Whedon. Whedon, 900 N.E.2d at 504.

       Lewicki is not entitled to a new trial on the basis of newly discovered evidence.


                              III. Habitual Offender Enhancement
[19]   Finally, Lewicki contends that his habitual offender enhancement was

       improper. His claim fails for two reasons. First, Lewicki has failed to cite to

       any authority as to why his habitual offender enhancement should be vacated.

       When a party does not support their argument with cogent reasoning or legal


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2356 | July 10, 2019   Page 12 of 13
       authority, they waive their argument. Burnell v. State, 110 N.E.3d 1167, 1172-73

       (Ind. Ct. App. 2018). Here, Lewicki has failed to adequately support his

       argument that his habitual offender enhancement should be vacated with any

       legal authority or cogent reasoning as required under Appellate Rule

       46(A)(8)(a). The second reason why Lewicki cannot succeed on his claim is

       because he failed to raise it to the post-conviction court. An issue that was not

       raised in the petition for post-conviction relief cannot be raised on appeal.

       Emerson, 812 N.E.2d at 1098-99. Lewicki has waived his argument as to this

       third issue.


[20]   The findings of the post-conviction court are not clearly erroneous, and the

       court did not err in its partial denial of Lewicki’s petition.


[21]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2356 | July 10, 2019   Page 13 of 13
