      MEMORANDUM DECISION
                                                                          May 28 2015, 8:55 am
      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 establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT, PRO SE                                        ATTORNEYS FOR APPELLEE
      David Pannell                                            Gregory F. Zoeller
      Michigan City, Indiana                                   Attorney General of Indiana
                                                               James B. Martin
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      David Pannell,                                           May 28, 2015

      Appellant-Defendant,                                     Court of Appeals Cause No.
                                                               49A04-1308-PC-415
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        Lower Court Cause No.
                                                               49G04-9502-PC-24360
      Appellee-Plaintiff.
                                                               The Honorable Lisa F. Borges,
                                                               Judge




      Pyle, Judge.


                                         Statement of the Case
[1]   Appellant/Petitioner, David Pannell (“Pannell”), appeals the post-conviction

      court’s denial of his petition for post-conviction relief, in which he requested


      Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015         Page 1 of 37
      relief from his conviction for murder. Pannell’s conviction was based on the

      murder of his wife, Leisha. On direct appeal, his appellate attorney argued that

      the trial court had abused its discretion in excluding testimony regarding

      Leisha’s drug use and that Pannell’s trial counsel had been ineffective for failing

      to submit certain evidence and explore all possible defenses. Our Indiana

      Supreme Court affirmed Pannell’s conviction.


[2]   Subsequently, Pannell filed a pro se petition for post-conviction relief, raising

      seventeen claims of ineffective assistance of appellate counsel, each arguing that

      his appellate counsel had provided ineffective assistance for failing to raise a

      claim of ineffective assistance of trial counsel. Pannell also raised multiple

      prosecutorial misconduct claims. After filing his petition, Pannell filed a

      motion for the trial court to issue subpoenas to his pre-trial, trial, and appellate

      counsel, which the trial court granted. He also filed a motion to compel

      discovery and a motion for the post-conviction court to issue subpoenas to his

      trial witnesses, both of which the post-conviction court denied. The post-

      conviction court then held a hearing at which Pannell’s appellate attorney

      testified. Pannell’s pre-trial and trial counsel did not appear, even though the

      trial court had issued subpoenas for them to appear. At the hearing, Pannell

      argued that the post-conviction court should re-issue the subpoenas for his pre-

      trial and trial counsel, but the post-conviction court ordered Pannell to submit

      the rest of his evidence on the petition via affidavit based on its conclusion that

      Pannell had not effectively questioned his appellate counsel at the hearing.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 2 of 37
      After giving Pannell ninety days to submit affidavits, the post-conviction court

      denied Pannell’s petition.


[3]   Pannell now appeals, arguing that the post-conviction court: (1) abused its

      discretion when it denied his post-conviction hearing motion to subpoena his

      pre-trial and trial counsel; (2) abused its discretion when it denied his pre-

      hearing motion to subpoena certain trial witnesses; (3) abused its discretion

      when it denied his motion to compel discovery; (4) abused its discretion when it

      denied his request to admit evidence during his post-conviction relief hearing;

      and (5) erred when it denied his petition for post-conviction relief. We find that

      the post-conviction court did not abuse its discretion when it refused to issue

      Pannell’s requested subpoenas in light of Pannell’s performance at his hearing

      and the lack of probative and relevant evidence the testimony from Pannell’s

      trial witnesses would have added to his case. We also find that: Pannell had

      waived his right to discovery of the evidence he requested; the post-conviction

      court did not exclude evidence Pannell submitted at his post-conviction relief

      hearing; and the post-conviction court did not err in denying Pannell’s petition

      for post-conviction relief.


      We affirm.


                                                    Issues
[4]   1. Whether the post-conviction court abused its discretion when it denied
      Pannell’s post-conviction hearing motion to re-issue subpoenas ordering his pre-
      trial and trial counsel to testify at his post-conviction hearing.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 3 of 37
      2. Whether the post-conviction court abused its discretion when it denied
      Pannell’s motion to issue subpoenas ordering several of Pannell’s trial witnesses
      to testify at his post-conviction hearing.

      3. Whether the post-conviction court abused its discretion when it denied
      Pannell’s motion to compel discovery.

      4. Whether the post-conviction court abused its discretion when it denied
      Pannell’s request to admit evidence during his post-conviction relief hearing.

      5. Whether the post-conviction court erred when it denied Pannell’s petition
      for post-conviction relief.

                                                     Facts
[5]   In Pannell’s direct appeal of his conviction for murder, our Indiana Supreme

      Court set forth the facts of this case as follows:


              David Pannell and his wife Leisha were separated. On February
              17, 1996, he visited the home where she lived with their five
              children. David and Leisha spent most of the afternoon and
              evening in her bedroom while the children played outside and in
              other areas of the house.

              That evening, after Leisha returned from a short trip to the store
              with some of the children to buy candy, she and David began to
              argue in the living room while the children watched television in
              her bedroom. Two of the children, then ages ten and nine,
              testified that they heard their father demand five dollars from
              Leisha, who refused, claiming she needed the money to feed the
              children. Shortly thereafter, they heard a door “slam open” and
              their mother scream. They ran to the front of the house and saw
              their father holding their mother down on the ground in front of
              the home and stabbing her with a large kitchen knife. One of the
              children ran outside and tried to stop him. Pannell pushed her
              away and continued stabbing Leisha. The children then dialed
              911 and watched as Pannell stuck the knife in the ground, got
              into his car, and drove away.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 4 of 37
              Police found Pannell approximately one hour later after his car
              was involved in a single-vehicle crash some three to four miles
              from Leisha’s home. Leisha died from stab wounds to the heart
              and lungs.


      Pannell v. State, 686 N.E.2d 824, 825-26 (Ind. 1997).


[6]   On February 21, 1995, the State charged Pannell with murder. Three days

      later, the court appointed Pannell’s pre-trial counsel to represent him. This

      attorney completed some of the early tasks of representing Pannell, including

      deposing potential witnesses. However, he filed a motion to withdraw from the

      representation on July 6, 1995, citing a breakdown of the attorney-client

      relationship due to a significant difference of opinion about defense strategy and

      witnesses. Pannell’s trial counsel then entered an appearance for Pannell and

      represented him throughout the remainder of his trial proceedings.


[7]   The trial court held a jury trial on Pannell’s charge from March 4-6, 1996. At

      trial, two of Pannell’s daughters testified that they had seen him stab their

      mother, and the State presented the audio recording of the girls calling 911 to

      report the stabbing. On cross-examination, Pannell’s trial counsel attempted to

      impeach the girls with inconsistent statements they had made during their

      depositions. These statements concerned the location of the knife used in the

      stabbing before it occurred; the girls’ response times to hearing their parents

      fighting; and Pannell’s reaction to one of the girls’ attempts to intervene in the

      stabbing.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 5 of 37
[8]    In his case-in-chief, Pannell testified; he denied stabbing his wife. He claimed

       that she had come after him with a knife but that he had disarmed her, dropped

       the knife on the ground beside the house, and driven away in his car without

       injuring her. Pannell also tried to introduce evidence that one of his daughters

       had seen drug paraphernalia in her mother’s room the day of the murder and

       that her mother had a history of drug abuse. The trial court excluded this

       evidence on the grounds that it was irrelevant. At the conclusion of the trial,

       the jury found Pannell guilty as charged, and the trial court entered judgment

       and sentenced him to sixty (60) years incarceration.


[9]    Pannell appealed his conviction and argued that the trial court had abused its

       discretion in excluding the evidence of Leisha’s alleged drug use because the

       exclusion had impacted his ability to present his defense. He also argued that

       his trial counsel had been ineffective for failing to present an ambulance run

       report that reflected the time he had been taken to the hospital after his

       automobile accident the night of the murder, as well as for allegedly failing to

       explore all potential defenses. Our Indiana Supreme Court affirmed Pannell’s

       conviction, holding that he had not raised a defense placing Leisha’s drug use at

       issue and that he had not demonstrated that his trial counsel was ineffective. Id.

       at 826. With respect to the ineffective assistance of counsel claim, the trial

       court noted that evidence of the time Pannell had arrived at the hospital bore

       “no discernible relation to the issues at trial.” Id.


[10]   Eight years later, on August 29, 2005, Pannell filed a pro se petition for post-

       conviction relief, which he later withdrew without prejudice. On June 13,

       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 6 of 37
       2011, six years after his first petition and fourteen years after his appeal, he re-

       filed his petition for post-conviction relief, again pro se.1 In this petition,

       Pannell claimed that his appellate counsel had been ineffective for failing to

       raise seventeen different claims of ineffective assistance of his trial and pre-trial

       counsel on direct appeal. Pannell also raised several prosecutorial misconduct

       claims and argued that his appellate counsel had been ineffective for failing to

       raise the same prosecutorial misconduct claims on appeal.


[11]   On June 23, 2011, Pannell filed a motion to compel discovery, requesting that

       the post-conviction court compel the State to produce a copy of the taped 911

       call admitted at trial and a copy of the police investigation report from his

       automobile accident the night of the murder. Four days later, he requested the

       post-conviction court to issue subpoenas for: (1) Detective David E. Phillips

       (“Detective Phillips”) of the Indianapolis Police Department, a detective who

       had responded to the scene of the stabbing; (2) his trial prosecutor; (3) his pre-

       trial counsel; (4) his trial counsel; and (5) his appellate counsel. That same day,

       the post-conviction court granted Pannell’s motion to issue subpoenas requiring

       Pannell’s pre-trial, trial, and appellate counsel to appear but denied his request

       to issue subpoenas to his trial prosecutor and to Detective Phillips. In a

       separate order issued the same day, the post-conviction court directed the State

       to file a response to Pannell’s discovery request within thirty days.




       1
           Pannell later amended his petition two times.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 7 of 37
[12]   On August 15, 2011, Pannell filed another motion requesting the post-

       conviction court to issue subpoenas to: (1) Officer Anthony Kelly (“Officer

       Kelly”), the police officer who had first responded to the scene of the murder;

       (2) David Evans (“Evans”), the supervisor of the Marion County Sheriff

       Department’s communications center; (3) Detective Phillips; (4) Officer Frank

       Wefler (“Officer Wefler”), the officer who had responded to the scene of

       Pannell’s automobile accident; (5) one of Pannell’s daughters who had testified

       at trial (“daughter one”); (6) another of Pannell’s daughters who had testified at

       trial (“daughter two”); (7) Pannell’s trial court prosecutor; and (8) the crime lab

       technician who had responded to the scene of Pannell’s automobile accident.

       The next day, Pannell filed another motion to compel discovery, again

       requesting that the post-conviction court compel discovery of the tape of the

       911 call and a copy of the police investigation report from his automobile

       accident. On August 24, 2011, the post-conviction court denied both motions.


[13]   On March 9, 2012, Pannell filed a motion for partial summary disposition

       under Ind. Post-Conviction Rule 1(4)(g) with respect to his prosecutorial

       misconduct claims. The post-conviction court did not rule on Pannell’s motion

       because it held a hearing on Pannell’s petition for post-conviction relief four

       days later on March 13, 2012. Pannell’s appellate counsel appeared at the

       hearing, but his pre-trial and trial counsel did not.


[14]   During his hearing, Pannell questioned his appellate counsel about her

       decisions regarding his case on appeal, but she explained that due to the

       passage of fifteen years, she could not recall many of the specifics of his case.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 8 of 37
       Throughout the examination, the post-conviction court repeatedly expressed

       frustration that Pannell was not effectively questioning his counsel. At one

       point, the court stated, “I’ve asked you a few times to get to the point and you

       just seem to be just not really getting to the point.” (Tr. 43). Another time, the

       court commented that:


               it just seems to me that this afternoon has been an exercise in
               educating—attempting to educate you on the procedure that we
               use in post-conviction relief and we keep going through questions
               that, in the Court’s view, are not relevant to any claims you’re
               trying to raise.


[15]   (Tr. 48). As a result, the post-conviction court decided to release Pannell’s

       appellate counsel from her subpoena and ordered Pannell to submit the

       remainder of his evidence, including testimony from his pre-trial and trial

       counsel, by affidavit.


[16]   Before releasing Pannell’s appellate counsel from her subpoena, however, the

       post-conviction court let the State cross-examine her. She testified on cross-

       examination that her standard procedure when doing criminal appellate work

       was to obtain and read a copy of the record, take notes about viable arguments

       or issues to present for appellate review “based on [her] experience and

       understanding of the law,” research the law, prepare a brief, and then file the

       brief. (Tr. 50). She further stated that she would not have reviewed depositions

       or police reports outside of the record unless the appellant had indicated that

       they were relevant. With respect to Pannell’s case, she stated that she did not

       remember any meritorious issues that she did not raise on appeal.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 9 of 37
[17]   Pannell requested affidavits from his pre-trial counsel and trial counsel but did

       not receive them within the ninety days the post-conviction court had allocated

       for him to submit affidavits.2 Subsequently, on August 5, 2012, the post-

       conviction court denied Pannell’s petition for post-conviction relief. The next

       day, on August 6, 2012, Pannell’s trial counsel filed an affidavit with the post-

       conviction court.3 He stated that he did not recall the specifics of his

       representation of Pannell because of the passage of time, but he stated that he

       would have zealously represented Pannell at trial, filed appropriate motions,

       and performed an appropriate investigation of his case. Pannell now appeals

       the post-conviction court’s denial of his petition.


                                                       Decision
[18]   On appeal, Pannell raises several issues, including that the post-conviction

       court: (1) abused its discretion when it denied his post-conviction hearing

       motion to re-issue subpoenas to his pre-trial counsel and trial counsel; (2)

       abused its discretion when it denied his motion to subpoena his trial witnesses;

       (3) abused its discretion when it denied his motion to compel discovery of the

       911 tape and automobile accident police report; (4) abused its discretion when it




       2
         Pannell tendered a letter that his pre-trial counsel had written in response to Pannell’s apparent service of
       interrogatories upon his pre-trial counsel. Counsel noted that the use of interrogatories was limited to parties
       in an action and asked for additional authority in support of Pannell’s request. As a result, Pannell did not
       submit an affidavit from his pre-trial counsel.
       3
        Even though this affidavit was not filed with the court until August 6, 2012, it is apparent the post-
       conviction court considered it before deciding Pannell’s case because the court discusses the affidavit in its
       order denying Pannell’s petition.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015                 Page 10 of 37
       denied his request to admit evidence during his post-conviction relief hearing;

       and (5) erred in denying his petition for post-conviction relief. We will address

       each of these arguments in turn.


[19]   First, however, we note that post-conviction proceedings afford petitioners a

       limited opportunity to raise issues that were unavailable or unknown at trial

       and on direct appeal. Allen v. State, 791 N.E.2d 748, 752 (Ind. Ct. App. 2003),

       trans. denied. Such proceedings are not “super appeals” through which

       convicted persons can raise issues that they failed to raise at trial or on direct

       appeal. Id. Post-conviction proceedings are civil in nature, and petitioners bear

       the burden of proving their grounds for relief by a preponderance of the

       evidence. Id.


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

       negative judgment. Id. Consequently, we may not reverse the judgment of the

       post-conviction court unless the petitioner demonstrates that the evidence “‘as a

       whole, leads unerringly and unmistakably to a decision opposite that reached

       by the post-conviction court.’” Id. (quoting Curry v. State, 674 N.E.2d 160, 161

       (Ind. 1996)). We accept the post-conviction court’s findings of fact unless they

       are clearly erroneous, but we do not give deference to the court’s conclusions of

       law. Id.


[21]   Further, we must note that, although Pannell is proceeding pro se and lacks

       legal training, we hold pro se litigants to the same standards as trained counsel.

       Whatley v. State, 937 N.E.2d 1238, 1240 (Ind. Ct. App. 2010).


       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 11 of 37
           1. Subpoena of Pre-Trial and Trial Counsel

[22]   First, Pannell argues that the post-conviction court abused its discretion when it

       denied his request to re-issue subpoenas to his pre-trial and trial counsel. As

       stated above, the post-conviction court initially granted Pannell’s request to

       subpoena both attorneys. However, at his post-conviction hearing, Pannell

       asked the post-conviction court if it could re-issue the subpoenas, and the post-

       conviction court commented that it did not “know that [Pannell] [had] filed an

       affidavit . . . as the rules for post[-]conviction relief require[d] to have a

       subpoena issued.” (Tr. 57). Then, after Pannell’s examination of his appellate

       counsel at that hearing, the post-conviction court determined that it would be

       inappropriate to subpoena either Pannell’s pre-trial or trial counsel and ordered

       Pannell to submit testimony from both counsel through affidavit.


[23]   On appeal, Pannell argues that the post-conviction court abused its discretion

       when it denied his request to subpoena his counsel because the court was wrong

       when it found that he had not filed an affidavit in compliance with the post-

       conviction rules. In support of this argument, he notes that the court originally

       granted his motion. Alternately, Pannell argues that once a post-conviction

       court has issued a subpoena for a witness, as it did before Pannell’s hearing

       here, it is required to let that witness testify at a hearing.


[24]   Both of these arguments depend on our interpretation of Ind. Post-Conviction

       Rule 1(9), which states:

               If the pro se petitioner requests issuance of subpoenas for
               witnesses at an evidentiary hearing, the petitioner shall

       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 12 of 37
               specifically state by affidavit the reason the witness’ testimony is
               required and the substance of the witness’ expected testimony. If
               the court finds the witness’ testimony would be relevant and
               probative, the court shall order that the subpoena be issued. If
               the court finds the proposed witness’ testimony is not relevant
               and probative, it shall enter a finding on the record and refuse to
               issue the subpoena.


       Under the post-conviction rules, the post-conviction court has the discretion to

       determine whether to grant or deny the petitioner’s request for a subpoena.

       Allen v. State, 791 N.E.2d 748, 756 (Ind. Ct. App. 2003), trans. denied. We will

       find that a court has abused this discretion if its decision is against the logic and

       effect of the facts and circumstances before it. Id.


[25]   With respect to Pannell’s first argument, Pannell is correct that the post-

       conviction court originally granted his motion to subpoena his pre-trial and trial

       counsel, so he is apparently also correct that the post-conviction court originally

       concluded that he had complied with Post-Conviction Rule 1(9). The post-

       conviction court could not have issued the subpoenas unless Pannell had

       submitted an affidavit with his motion. See P-C.R. 1(9)(b).


[26]   However, we disagree with Pannell’s argument that, because the post-

       conviction court initially granted his motion, the court was indefinitely required

       to let his pre-trial and trial counsel testify at a hearing. As stated above, a post-

       conviction court has discretion in determining whether it should issue a

       subpoena for a pro se petitioner’s requested witness. Allen, 791 N.E.2d at 756.

       The rules do not state that the post-conviction court loses its discretion to


       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 13 of 37
       determine whether to re-issue a subpoena after issuing the subpoena once. See

       P-C.R. 1(9)(b). Even if the question here concerned a modification of a

       decision to issue a subpoena rather than a decision to re-issue a subpoena, the

       post-conviction court’s discretion would be illusory if it could not modify a

       previous order.4


[27]   In addition, in order to subpoena Pannell’s pre-trial and trial counsel to testify,

       the post-conviction court here would have had to schedule another hearing

       because neither counsel was present at Pannell’s March 13, 2012 post-

       conviction hearing. We held in Smith v. State, 822 N.E.2d 193, 201 (Ind. Ct.

       App. 2005), trans. denied, that the decision about whether or not to hold a

       hearing is “best left to the [post-conviction] court’s discretion.” Thus, the post-

       conviction court also had the discretion to refuse to hold an additional hearing

       at which Pannell’s pre-trial and trial counsel could testify. As the post-

       conviction court indicated at Pannell’s first hearing, Pannell did not effectively

       question his appellate counsel or ask questions relevant to the issues he had

       raised. Accordingly, we do not find that the post-conviction court abused its

       discretion in deciding to deny Pannell’s request to re-issue subpoenas to his pre-




       4
         Notably, it is a “well-settled rule that a trial court has inherent power to reconsider, vacate, or modify any
       previous order so long as the case has not proceeded to final judgment[.]” Hubbard v. Hubbard, 690 N.E.2d
       1219, 1221 (Ind. Ct. App. 1998). Although this common law precedent has never been addressed in the post-
       conviction context, it is logical that a post-conviction court would have the same inherent powers necessary
       to exercise its authority and discretion.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015                Page 14 of 37
       trial and trial counsel, especially when no additional hearing was going to be

       held.


           2. Subpoena of Trial Witnesses

[28]   Pannell also argues that the post-conviction court abused its discretion when it

       denied his August 15, 2011 motion requesting the post-conviction court to issue

       subpoenas for several of the people who had been witnesses at his trial,

       including Officer Kelly; Evans; Detective Phillips; Officer Wefler; Pannell’s two

       daughters; the trial court prosecutor; and the crime lab technician who had

       responded to the scene of Pannell’s automobile accident. Pannell cites Post-

       Conviction Rule 1 again, which states:

               If the pro se petitioner requests issuance of subpoenas for
               witnesses at an evidentiary hearing, the petitioner shall
               specifically state by affidavit the reason the witness’ testimony is
               required and the substance of the witness’ expected testimony. If
               the court finds the witness’ testimony would be relevant and
               probative, the court shall order that the subpoena be issued. If the
               court finds the proposed witness’ testimony is not relevant and probative,
               it shall enter a finding on the record and refuse to issue the subpoena.


[29]   P-C.R. 1(9)(b) (emphasis added). Because, here, the post-conviction court

       stamped “denied” on his motion but did not explain its reason for denying the

       motion, Pannell argues that the court abused its discretion because it did not

       “enter a finding on the record” before refusing to issue his requested subpoenas.

       P-C.R. 1(9)(b). He also argues that the affidavits he submitted demonstrated

       that the witnesses’ expected testimonies were relevant and probative to his post-

       conviction arguments. He notes that the post-conviction rules use the

       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 15 of 37
       mandatory language “shall,” in the statement: “If the court finds the witness’

       testimony would be relevant and probative, the court shall order that the

       subpoena be issued” and asserts that as a result of this language and the fact

       that the witnesses’ expected testimonies were relevant and probative, the post-

       conviction court was required to issue his requested subpoenas. P-C.R. 1(9)(b)

       (emphasis added).


[30]   As Pannell argues, the post-conviction court was required to enter a finding on

       the record before denying his motion. P-C.R. 1(9)(b). However, we need not

       determine whether the post-conviction court’s “denied” stamp qualified as a

       finding because, even if it did not, we conclude that it is not reversible error.

       The post-conviction court’s denial was based on a paper record—Pannell’s

       affidavits and the record—and we will not find that a failure to enter specific

       findings is reversible error when the issues are sufficiently presented for review

       and addressed by the parties. See Jackson v. State, 676 N.E.2d 745, 750 (Ind. Ct.

       App. 1997) (stating that a failure to include specific findings of fact and

       conclusions of law in a ruling on a petition for post-conviction relief is not a

       reversible error), trans. denied; see also Ratliff v. State, 596 N.E.2d 241, 244 (Ind.

       Ct. App. 1992) (acknowledging that Post-Conviction Rule 1(6) provides that:

       “The [post-conviction] court shall make specific findings of fact and conclusions

       of law on all issues presented, whether or not a hearing is held,” but

       nevertheless holding that it was not reversible error that the court had not made

       specific findings and conclusions because the issue was easily reviewable), reh’g

       denied, trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 16 of 37
[31]   Here, the facts in the record are sufficient for us to address Pannell’s arguments

       because we may conclude from the face of Pannell’s motion that the testimony

       he expected from his requested witnesses would not have been relevant or

       probative to his post-conviction ineffective assistance of counsel or

       prosecutorial misconduct claims and, therefore, the post-conviction court was

       not required to issue his subpoena requests. As a result, the post-conviction

       court did not abuse its discretion, and the court’s failure to enter findings before

       denying the subpoenas was not a reversible error.


[32]   With respect to his first requested witness, Officer Kelly, Pannell stated that he

       expected Officer Kelly to testify at the hearing that he had arrived at the scene

       of the stabbing at 11:27 p.m. and recorded the time of the stabbing as occurring

       around 11:10 p.m. based on Pannell’s daughter’s statement that the incident

       had happened fifteen minutes earlier. Pannell claimed that this testimony was

       necessary to prove two of his ineffective assistance of counsel claims, but we

       find that the expected testimony is identical to Officer Kelly’s trial testimony

       and would not have added any probative value to the hearing as it is already a

       part of the record. Brim v. State, 624 N.E.2d 27, 35 (Ind. Ct. App. 1993) (noting

       that the probative value of evidence depends on its tendency to prove any

       disputed fact in issue), trans. denied. Therefore, we conclude that the post-

       conviction court was not required to issue a subpoena to Officer Kelly.


[33]   With respect to his second requested witness, Pannell included four pages in his

       motion documenting Detective Phillips’ expected testimony, which again

       consisted primarily of testimony and facts already in the record. Among other

       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 17 of 37
       evidence, this expected testimony included Detective Phillips’ testimony at trial

       that Pannell’s daughter had told him that Pannell had killed her mother.

       Pannell claimed that this expected testimony would prove that his appellate

       counsel was ineffective for failing to raise that his trial counsel: (1) should have

       challenged Detective Phillips’ probable cause to arrest him; (2) should have

       filed a motion to suppress evidence obtained incident to his arrest on the basis

       that there was no probable cause for the arrest; and (3) should have argued that

       Detective Phillips’ probable cause affidavit contained knowing and deliberate

       false statements. Pannell also claimed that this testimony would prove that his

       trial prosecutor had committed misconduct by intentionally soliciting the

       testimony from Detective Phillips concerning Pannell’s daughter’s statements

       about the stabbing and that his appellate counsel had been ineffective for failing

       to argue that his trial counsel had been ineffective for failing to raise this

       prosecutorial misconduct claim.


[34]   Contrary to Pannell’s arguments, this expected testimony would not have been

       at all relevant or probative to prove his claims. Testimony that Pannell’s

       daughters told Detective Phillips that Pannell had stabbed their mother would

       have been evidence that Detective Phillips did have probable cause to arrest

       Pannell, not that he lacked probable cause. See Hamlet v. State, 490 N.E.2d 715,

       719 (Ind. 1986) (holding that identification of a perpetrator of a crime by

       eyewitnesses to the crime may establish sufficient probable cause to arrest the

       suspect). Pannell also failed to specify which portions of the probable cause

       affidavit he thought were false. Nothing in Detective Phillips’ expected


       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 18 of 37
       testimony supported that conclusion because the expected testimony was

       consistent with Detective Phillips’ trial testimony. Further, since none of the

       expected testimony would have been relevant to prove that Detective Phillips

       testified falsely at trial, none of it would have been relevant to prove that the

       trial prosecutor knowingly solicited false testimony from Detective Phillips,

       either. In sum, since this testimony would not have produced relevant or

       probative evidence regarding any of Pannell’s claims, the post-conviction court

       was not required to issue the subpoena.


[35]   With respect to his third requested witness, Pannell averred that he expected

       Officer Wefler to testify that he had received a 911 call reporting Pannell’s

       automobile accident at 11:39 p.m. on the night of the murder, rather than at

       1:00 a.m., which is the time Officer Wefler identified at trial. Pannell also

       expected Officer Wefler to admit that he did not file an automobile accident

       report and that he was not an automobile accident expert. 5 Pannell argued that

       this testimony would prove that his appellate counsel had provided ineffective

       assistance by failing to raise that his trial counsel should have argued that: (1)

       Pannell had an alibi to the stabbing because he could not have stabbed his wife,

       driven to his home to change clothes, gotten rid of his bloody clothes, and




       5
        In his motion, Pannell actually states that he expects Officer Wefler to testify that he is not an “Accident
       Investigation Car[,]” but we assume he means accident investigation expert based on the context. (App.
       313).

       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015                 Page 19 of 37
       driven to the scene of the accident in “[fourteen]” minutes;6 (2) Officer Wefler

       deliberately and intentionally failed to file an accident investigation report for

       Pannell’s automobile accident and thereby deprived Pannell of exculpatory and

       impeaching evidence; (3) Officer Wefler was not an automobile accident expert

       and should not have qualified as an expert when he testified that he could not

       find a cause for Pannell’s accident; (4) Officer Wefler committed perjury when

       he testified that he was called to the scene at approximately 1 a.m.; and (5) the

       prosecutor committed prosecutorial misconduct by allegedly soliciting this false

       testimony from Officer Wefler. (App. 313). In addition, Pannell argued that

       Officer Wefler’s expected testimony would support his freestanding

       prosecutorial misconduct claim.


[36]   Many of these arguments relate to Pannell’s appellate counsel’s decisions

       concerning what issues to raise on appeal, and we are highly deferential to such

       decisions. Graham v. State, 941 N.E.2d 1091, 1099 (Ind. Ct. App. 2011),

       affirmed on reh’g. In evaluating a claim that an appellate attorney was ineffective

       for failing to raise certain issues on appeal, we must determine (1) whether an

       unraised issue was significant and obvious from the face of the record; and (2)

       whether an unraised issue was “‘clearly stronger’” than the raised issue or

       issues. Id. (quoting Fisher v. State, 810 N.E.2d 674, 677 (Ind. 2004)). Counsel is




       6
        Pannell argues that the time difference between the stabbing and his accident was only fourteen minutes,
       but even if we take Officer Wefler’s expected testimony as true, the difference between 11:10 p.m. and 11:39
       p.m. is twenty-nine minutes.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015              Page 20 of 37
       deficient only if he or she failed to present a significant and obvious issue for

       reasons that cannot be explained by any strategic decision. Id.


[37]   Based on this standard, we conclude that the post-conviction court was not

       required to issue a subpoena to Officer Wefler. Pannell’s affidavit arguments

       (1), (2), (4), and (5) are all based on Pannell’s claim that Officer Wefler actually

       responded to the scene of Pannell’s accident at 11:39 p.m. rather than 1 a.m. as

       he testified. However, there is no suggestion of that possibility in the record.

       Accordingly, even if we accept Pannell’s speculations as true, Officer Wefler’s

       expected testimony would not be relevant to Pannell’s ineffective assistance of

       appellate counsel claims, because these unraised issues were not “significant

       and obvious”—or even present—in the record, and Pannell’s appellate counsel

       could not have been ineffective for failing to raise them. See id.


[38]   As for Pannell’s argument (3) that Officer Wefler was not an automobile

       accident expert and should not have qualified as an expert when he testified

       that he could not find a cause for Pannell’s accident, there is no indication in

       the record that the State qualified Officer Wefler as an expert. Instead, the

       officer merely testified to his conclusions based upon his observations and

       experience, which included investigating over 100 automobile accidents. As

       this type of testimony is permissible, see Davis v. State, 791 N.E.2d 266, 269 (Ind.

       Ct. App. 2003) (allowing a police officer’s testimony based on his experience as

       a police officer and his perceptions), reh’g denied, trans. denied, it would not have

       been a strong issue for Pannell’s appellate counsel to raise on appeal, and his

       appellate counsel would not have been considered ineffective for failing to raise

       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 21 of 37
       it. See Graham, 941 N.E.2d 1099. Accordingly, Officer Wefler’s expected

       testimony would not have been relevant or probative to Pannell’s ineffective

       assistance of counsel claims, and the post-conviction court was not required to

       issue a subpoena for him to testify.


[39]   With respect to Pannell’s fourth requested witness, daughter one, Pannell

       included three and a half pages of testimony he expected from her at his

       hearing, including excerpts taken from her voluntary interview with the police

       the night of the stabbing; her deposition testimony; and her trial testimony.

       Neither the voluntary statement nor the deposition were admitted into evidence

       at trial, but both were discussed at trial. In daughter one’s voluntary statement

       the night of the murder, she said that she heard her parents arguing and ran out

       into the living room. At that point, she saw her father strike her mother, push

       her mother out the front door, retrieve a knife from a table inside the residence,

       and begin stabbing her mother. She said that when she tried to intervene, her

       father hit her with the knife. In contrast, at her deposition, she said that she ran

       out into the living room when she heard the front door slam and her mother

       screaming. When she ran out, she saw her father stabbing her mother, although

       she did not know how he had gotten the knife from the table. Then, she said

       that when she tried to intervene, her father pushed her against a fence. Finally,

       at trial, her testimony was substantially similar to her deposition testimony,

       except that she said she waited a few minutes after hearing the front door slam

       before running into the living room.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 22 of 37
[40]   In his motion requesting a subpoena, Pannell argued that he expected daughter

       one to verify at his hearing that she had previously made these inconsistent

       statements. He asserted that this testimony would demonstrate that his

       daughter had deliberately lied to the police during her voluntary interview, had

       later recanted her voluntary interview statements during her deposition, and

       had then committed perjury at trial. Thus, he argued that the expected

       testimony was relevant to prove that his trial counsel had been ineffective for

       failing to raise these issues and that, based on the same premise, his appellate

       counsel had been ineffective for failing to argue that his trial counsel was

       ineffective.


[41]   Contrary to Pannell’s contentions, his trial counsel did cross-examine his

       daughter about her inconsistent statements at trial in an attempt to impeach her.

       Therefore, all of these inconsistencies are in the record, and Pannell’s

       daughter’s testimony at the post-conviction hearing would not have added any

       relevant or probative evidence concerning Pannell’s ineffective assistance of

       counsel claims. Thus, the post-conviction court was not required to issue a

       subpoena to daughter one.


[42]   Next, Pannell included a description of the testimony he expected from his

       second daughter who had testified at his trial, daughter two. This description

       included excerpts of her deposition and trial testimonies, which he argued

       would prove that this second daughter had also committed perjury at trial, that

       his trial counsel had been ineffective for failing to object to the perjury, and that

       his appellate counsel had been ineffective for failing to raise an ineffective

       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 23 of 37
       assistance of counsel claim against the trial counsel on the same basis.

       However, as in the case of daughter one, Pannell’s trial counsel did attempt to

       impeach daughter two’s testimony at trial with her inconsistent deposition

       testimony. Therefore, the testimony Pannell expected from daughter two at the

       post-conviction hearing would not have added any relevant or probative

       evidence to the record, and the post-conviction court was not required to issue a

       subpoena for her to testify.


[43]   The sixth witness Pannell requested was his trial prosecutor. He argued that the

       trial prosecutor’s testimony at the hearing was necessary to prove that she had

       received a copy of daughter one’s voluntary statement from the night of the

       murder and, therefore, committed misconduct because she failed to inform the

       trial court that the daughter had supposedly recanted her voluntary statement to

       the police and also because she had failed to correct the daughter’s trial

       testimony.


[44]   We conclude that providing proof that the trial prosecutor knew about Pannell’s

       daughter would not have been relevant or probative for his ineffective assistance

       of appellate counsel claim. As stated above, in order to prove that an appellate

       counsel was ineffective for failing to raise an issue, a petitioner must prove that

       the issue was stronger than the ones the appellate counsel did raise. Id. Our

       Indiana Supreme Court has previously held that evidence of a witness’s perjury,

       where the witness was already impeached by inconsistent statements at trial,

       will not warrant a new trial on appeal. See Downs v. State, 482 N.E.2d 716, 719

       (Ind. 1985) (additionally noting that, “Despite the greater impeachment power

       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 24 of 37
       of a perjury conviction, it is still merely impeaching”). Accordingly, even if

       Pannell’s appellate counsel had raised an ineffective assistance of trial counsel

       claim arguing that Pannell’s trial counsel had failed to prove the prosecutor’s

       misconduct in soliciting perjured testimony, evidence that the prosecutor had

       allowed perjured testimony at trial would not have warranted a new trial

       because Pannell’s trial counsel had already impeached Pannell’s daughter with

       her inconsistent statements. Since this argument would not have altered

       Pannell’s conviction, it could not have been stronger than the issues his

       appellate counsel did raise. Therefore, evidence of the prosecutor’s knowledge

       of the inconsistent statements would not have been probative for Pannell’s

       ineffective assistance of counsel claims. See Graham, 941 N.E.2d at 1099.


[45]   The seventh witness Pannell requested was the crime scene technician who took

       evidence from the scene of the stabbing and the scene of his automobile

       accident. He argued that the technician’s testimony was necessary because he

       expected the technician to testify that: (1) he had examined the house’s front

       door and screen door and found no damages indicating that it had been

       slammed or kicked open; and (2) he did not have a search warrant to search

       Pannell’s car and seize evidence from it. Pannell argued that this testimony

       was necessary to prove that his appellate counsel had been ineffective for failing

       to raise a claim that his trial counsel had been ineffective for: (1) failing to

       argue that the State had presented false evidence that the door had slammed

       open; (2) failing to argue that the crime scene technician had violated Pannell’s

       federal and state constitutional rights to be free from unreasonable search and


       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 25 of 37
       seizure; (3) failing to file a motion to suppress the evidence seized from the car;

       and (4) failing to object to the admission of the evidence at trial.


[46]   We do not find that the crime scene technician’s testimony would have been

       relevant or probative to Pannell’s ineffective assistance of appellate counsel

       claims because the issue of whether the door was slammed was not stronger

       than the issues raised. At most, it would have supported Pannell’s

       impeachment of his daughters’ testimonies, but, as we stated above, that

       argument would not have warranted a new trial. See Downs, 482 N.E.2d at 719.

       In addition, there is no evidence in the record to support Pannell’s insinuation

       that the crime scene technician did not have a warrant to search Pannell’s

       automobile. “[I]n elaborating the right to effective assistance of appellate

       counsel, the Supreme Court of the United States has never suggested that

       counsel must look outside the record for possible claims of error for the

       performance to be constitutionally effective.” Woods v. State, 701 N.E.2d 1208,

       1221 (Ind. 1998), reh’ denied, cert. denied. Therefore, proof that the crime scene

       technician did not have a warrant would not have been relevant or probative to

       prove Pannell’s ineffective assistance of counsel claims, and the post-conviction

       court was not required to issue a subpoena for the technician to testify.


[47]   Finally, Pannell requested the post-conviction court to issue a subpoena for

       Evans, the supervisor of the Marion County Sheriff’s Department’s

       communication center. He claimed that Evans’ testimony was necessary

       because he expected Evans to testify that he did a search for calls coming into

       the 911 system the night of the stabbing and prepared a worksheet listing all of

       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 26 of 37
       the calls. Pannell claimed that this testimony would prove that his trial counsel

       had been ineffective—and his appellate counsel had been ineffective for failing

       to raise this ineffective assistance of trial counsel claim—for: (1) failing to argue

       that the police were aware of several additional eyewitness who had called the

       911 system and did not provide that information to Pannell even though it

       could have provided him with exculpatory evidence; and (2) failing to properly

       investigate the scene of the crime to identify additional witness who could

       provide exculpatory information. Pannell also argued that the prosecutor

       committed misconduct by denying him the information about these alleged

       additional witnesses, and his appellate counsel was accordingly ineffective for

       failing to raise this prosecutorial misconduct claim.


[48]   We do not find these arguments persuasive, first, because the State discussed at

       trial the fact that multiple people had called 911 about the stabbing and also

       played the additional recordings of the 911 calls to the jury. Thus, there was no

       indication that the State had withheld this information from Pannell or that the

       prosecutor had committed misconduct. Likewise, Pannell’s appellate counsel

       was not ineffective for failing to raise these claims. See Woods, 701 N.E.2d at

       1221 (noting that appellate counsel is not required to look outside of the record

       for claims of error). In light of the fact that Evans’ expected testimony would

       not have been probative or relevant to any of these claims, the post-conviction

       court was not required to issue a subpoena for him to testify.


[49]   In sum, as we have found that none of the witnesses whom Pannell requested

       the post-conviction court to subpoena would have provided relevant or

       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 27 of 37
       probative evidence in his post-conviction hearing. As a result, the post-

       conviction court did not abuse its discretion in denying his request to issue the

       subpoenas. Further, because we have been able to determine on the face of

       Pannell’s motion that the potential witnesses would not have provided relevant

       or probative evidence, it also was not a reversible error for the post-conviction

       court to fail to enter findings before denying the request to issue the subpoenas.


           3. Motion to Compel Discovery

[50]   Next, Pannell challenges the post-conviction court’s denial of his pre-trial

       motion to compel discovery of the 911 operator tape from the night of the

       murder, as well as the police department’s accident report concerning his

       automobile accident. He argues that, as this evidence was not privileged, the

       post-conviction court abused its discretion by not compelling the State to

       produce it.


[51]   Trial and post-conviction proceedings are governed by the same rules

       “‘applicable in civil proceedings including pre-trial and discovery procedures.’”

       Wilkes v. State, 984 N.E.2d 1236, 1251 (Ind. 2013) (quoting P-C.R. 1(5)). Trial

       and post-conviction courts are accorded broad discretion in ruling on discovery

       matters, and we will affirm their determinations absent a showing of clear error

       and resulting prejudice. Id.


[52]   Although the post-conviction rules provide for discovery, a post-conviction

       proceeding is not a normal civil action. Sewell v. State, 592 N.E.2d 705, 707

       (Ind. Ct. App. 1992), trans. denied. It is a special quasi-civil remedy designed for


       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 28 of 37
       the presentation of errors unknown or unavailable at the time of trial or direct

       appeal. Id. Because post-conviction proceedings take place after trial or a guilty

       plea hearing, the convicted individual typically has discovered particular items

       of State evidence or foregone the opportunity to do so. Id. Discovery is not

       required under the due process clause of the Constitution; therefore, a

       defendant may waive pre-trial discovery rights by failing to exercise them. Id.

       A second opportunity to discover the same evidence will typically be precluded.

       Id.


[53]   Although Pannell’s pre-trial discovery requests are not a part of the record, it is

       clear that both of the items he requested in his post-conviction motion to

       compel discovery were items that he could have discovered prior to his trial. In

       fact, the 911 operator tape was admitted at trial and is a part of the record. As a

       result, we conclude that Pannell waived his discovery rights by failing to

       exercise them at trial, and the post-conviction court did not abuse its discretion

       when it denied Pannell’s motion to compel discovery.


             4. Exclusion of Evidence

[54]   Pannell also contends that the post-conviction court abused its discretion when

       it excluded evidence he attempted to admit at his post-conviction hearing.

       However, Pannell does not identify which evidence he thinks the post-

       conviction court excluded, and we do not find that the post-conviction court

       excluded any evidence.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 29 of 37
[55]   During his hearing, Pannell attempted to admit the appellant’s brief from his

       appeal. The State objected to this admission. It argued that Pannell had not

       established a foundation for the brief’s reliability, which was questionable

       because it looked like there was handwriting in the back of the brief. To resolve

       this issue, the post-conviction court told Pannell that it would order the State to

       obtain the appellant’s brief as part of the official record and would examine the

       brief before ruling on Pannell’s petition. Pannell did not object to this

       suggestion and continued with his examination of his appellate counsel.


[56]   Later during the hearing, Pannell attempted to admit a photocopy of Officer

       Wefler’s trial testimony. The State objected on the grounds that the photocopy

       was not certified. Instead, Pannell agreed to use the document to refresh his

       appellate counsel’s memory. At the end of the hearing, the post-conviction

       court told Pannell that if he had “additional evidence that [he] want[ed] to

       present[,] it [could] be presented in the form of an affidavit.” (Tr. 56).


[57]   In light of this record of the hearing, we conclude that the post-conviction court

       did not exclude evidence that Pannell attempted to admit. The court told

       Pannell that it would order his first submitted exhibit, his appellant’s brief,

       included in the record. Officer Wefler’s trial testimony was already a part of the

       record, too. Regardless, the post-conviction court gave Pannell the opportunity

       to present any evidence by affidavit, as allowed by P-C.R. 1(9)(b), and Pannell

       did not do so.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 30 of 37
           5. Denial of Petition

[58]   Finally, we consolidate several of Pannell’s remaining arguments into one

       question of whether the post-conviction court erred in denying his petition for

       post-conviction relief. First, Pannell asserts that the post-conviction court erred

       when it determined that his free-standing prosecutorial misconduct claims were

       waived, and, second, he asserts that the post-conviction court erred because it

       did not find that his appellate counsel had provided ineffective assistance. We

       will address each of these issues in turn.


       A. Prosecutorial Misconduct

[59]   In his petition for post-conviction relief, Pannell argued that his prosecutor

       committed misconduct by soliciting false testimony from daughter one,

       daughter two, Detective Phillips, and Officer Wefler. Pannell also asserted that

       the prosecutor knowingly and intentionally withheld the police accident report

       from his automobile accident. His arguments regarding daughter one, daughter

       two, and Detective Phillips are based on the alleged inconsistencies between the

       witnesses’ trial testimonies, depositions, and statements, and his arguments

       regarding Officer Wefler and the accident report are based on speculation. The

       post-conviction court concluded that all of Pannell’s prosecutorial misconduct

       arguments were free-standing claims that he had waived for failing to raise

       them in his direct appeal. Pannell now disputes that conclusion, asserting that

       he did not waive the claims because they were based on discoveries he made

       after his trial and direct appeal.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 31 of 37
[60]   On post-conviction review, aside from claims of ineffective assistance of

       counsel, a petitioner may only raise issues that were unknown and unavailable

       at the time of the original trial or direct appeal. Stephenson v. State, 864 N.E.2d

       1022. 1028 (Ind. 2007). First, we must note that, because Pannell’s claims that

       the prosecutor solicited perjury are based on pre-trial and trial testimony, they

       were known and available at the time of the original trial and direct appeal.

       Therefore, the post-conviction court did not err in determining that Pannell had

       waived those issues. See Perryman v. State, 13 N.E.3d 923, 938 (Ind. Ct. App.

       2014) (holding that a petitioner for post-conviction relief waives issues known at

       the time of the original trial or available on direct appeal), trans. denied. As for

       Pannell’s remaining prosecutorial misconduct claims, he speculates that Officer

       Wefler was actually dispatched to the scene of Pannell’s automobile accident at

       11:40 p.m. the night of the stabbing rather than 1:00 a.m., and that Officer

       Wefler therefore testified falsely. Second, he argues that a police accident

       report existed and that the prosecutor withheld the report from him. However,

       because he has not provided evidence to support either of these prosecutorial

       misconduct claims, we conclude that the post-conviction court did not err in

       concluding they were waived.


         B. Ineffective Assistance of Appellate Counsel

[61]   Finally, Pannell argues that the post-conviction court erred in concluding that

       his appellate counsel had provided effective assistance. He claims that his

       appellate counsel was ineffective for failing to raise several issues that he

       contends were obvious in the record and much stronger than the issues that she


       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 32 of 37
did raise. Specifically, he says that she should have argued that his pre-trial

and/or trial counsel were ineffective for: (1) failing to conduct an adequate

direct examination of daughter one and to object to the prosecutor’s cross-

examination of daughter one during her deposition; (2) failing to file a motion

to suppress the evidence obtained incident to Pannell’s arrest, or to object to the

admission of that evidence at trial; (3) failing to file a motion for a “Franks

Hearing” based on Detective Phillips’ alleged false statements in the probable

cause affidavit; (4) failing to investigate and interview potential witnesses who

lived near the crime scene; (5) conceding Pannell’s guilt during voir dire and

opening argument; (6) failing to impeach the testimonies of Pannell’s daughters

with prior inconsistent statements; (7) failing to object that the prosecutor had

failed to lay a proper foundation for Officer Wefler’s testimony regarding the

automobile accident; (8) failing to object to Officer Wefler’s testimony

regarding the cause of Pannell’s automobile accident; (9) failing to object to the

admission of the 911 call audio tape based on the grounds that it was

inadmissible hearsay; (10) failing to impeach Officer Wefler with prior

inconsistent statements contained in his deposition; (11) failing to file a motion

for an expert witness to establish that the injuries suffered by Leisha were

caused by two different weapons; and (12) failing to hire a private investigator

to investigate Pannell’s automobile accident and determine that Pannell could

not have stabbed his wife and then driven home in time to be in an automobile

accident miles from his wife’s home. (App. 116).




Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 33 of 37
[62]   We do not find any error in the post-conviction court’s decision. In order to

       succeed on his ineffective assistance of appellate counsel claim, Pannell was

       required to show that his appellate counsel was deficient in her performance

       and that the deficiency resulted in prejudice. Hollowell v. State, 19 N.E.3d 263,

       269 (Ind. 2014). Ineffective assistance of appellate counsel claims generally fall

       into three categories: (1) denial of access to an appeal; (2) waiver of issues; and

       (3) failure to present issues well. Id. at 270. Here, Pannell’s ineffective

       assistance of appellate claims primarily charge that his appellate counsel was

       ineffective for failing to raise ineffective assistance of counsel claims concerning

       Pannell’s pre-trial and trial-counsel.


[63]   As stated above, when evaluating a claim that an appellate attorney should

       have raised certain issues on appeal, we must determine (1) whether an

       unraised issue was significant and obvious from the face of the record; and (2)

       whether an unraised issue was “‘clearly stronger’” than the raised issue or

       issues. Graham, 941 N.E.2d at 1099 (quoting Fisher, 810 N.E.2d at 677). We

       are highly deferential to an appellate attorney’s decisions about which issues to

       raise. Hollowell, 19 N.E.3d at 269. Counsel is deficient only if he or she failed

       to present a significant and obvious issue for reasons that cannot be explained

       by any strategic decision. Graham, 941 N.E.2d at 1099.


[64]   As we have already found in prior sections of this opinion, there is no evidence

       in the record to support Pannell’s claim that the police lacked probable cause

       for his arrest, that Detective Phillips made false statements in the probable

       cause affidavits, or that Pannell’s automobile accident occurred at 11:40 p.m.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 34 of 37
       rather than 1:00 a.m. There is also no evidence in the record to indicate that

       Pannell’s neighbors witnessed the murder and could have provided exculpatory

       evidence or that Leisha’s injuries were caused by two different weapons. In

       addition, Pannell has failed to admit the depositions of either of his daughters

       or Officer Wefler, and the record of the trial proceedings does not include a

       transcript of either voir dire or Pannell’s counsel’s opening statement. Finally,

       we have already determined that Officer Wefler properly testified to his opinion

       of the cause of the accident. Accordingly, we do not find any merit in Pannell’s

       arguments that his appellate counsel was ineffective for failing to raise issues

       (1), (2), (3), (4), (5), (6), (8), (10), (11), and (12). See Graham, 941 N.E.2d at

       1099 (noting that, to prove ineffective assistance of counsel, issues not raised

       must have been “obvious on the face of the record”).


[65]   As for Pannell’s argument that his appellate counsel was ineffective for failing

       to argue that his trial counsel should have objected to the foundation for Officer

       Wefler’s testimony, “[t]o establish ineffective assistance for counsel’s failure to

       object, a defendant must establish that the trial court would have sustained the

       objection had one been made and that he or she was prejudiced by the failure to

       object.” Jones v. State, 847 N.E.2d 190, 198-99 (Ind. Ct. App. 2006), reh’g

       denied, trans. denied. Pannell argues that his trial counsel should have objected

       that the State did not establish the foundation for Officer Wefler’s testimony

       because it did not introduce Officer Wefler’s accident report into evidence

       before questioning him about his observations of the scene of the accident.

       However, Pannell has not provided any support for his argument that the State


       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 35 of 37
       was required to introduce an accident report to establish the foundation for

       Officer Wefler’s testimony, so we conclude that Pannell has not proven that the

       trial court would have sustained his objection. See id.


[66]   Pannell also asserts that his counsel failed to object to the admission of the 911

       audio tape, which he argues was inadmissible hearsay. In Porter v. State, 700

       N.E.2d 805, 808 (Ind. Ct. App. 1998), we held that, although it varies by case,

       911 calls generally fall within the excited utterance exception to hearsay and are

       therefore admissible. As a result, Pannell cannot show that the trial court

       would have sustained any such objection. Further, as the post-conviction court

       noted, the tape was also beneficial to Pannell, and he requested to re-play the

       entire tape to the jury as part of his case-in-chief. As a result, we conclude that

       Pannell’s appellate counsel was not ineffective for failing to argue that his trial

       counsel should have objected to the admission of the tape. 7




       7
         Pannell also raises additional issues that we will not address in detail. Briefly stated, he argues that the
       post-conviction court abused its discretion when it denied him a hearing and a ruling on his motion for
       partial summary disposition. However, that argument is moot as the post-conviction entered judgment on
       Pannell’s petition. Samm v. State, 893 N.E.2d 761, 765 (Ind. Ct. App. 2008) (stating that a case is deemed
       moot when no effective relief can be rendered to the parties before the court and stating that we will not
       discuss moot questions). In addition, Pannell challenges the post-conviction court’s finding that he did not
       submit an affidavit or testimony from his pre-trial counsel, as well as the post-conviction court’s inference
       that his pre-trial counsel would not have agreed that he provided ineffective assistance. Pannell argues that,
       contrary to the post-conviction court’s finding, he did procure testimony from his pre-trial counsel because he
       requested the post-conviction court to issue a subpoena to his pre-trial counsel. However, issuing a subpoena
       to a witness is not equivalent to procuring testimony from that witness. Pannell’s pre-trial counsel did not
       testify at Pannell’s hearing, and then at the hearing the post-conviction court ordered Pannell to submit his
       pre-trial counsel’s testimony by affidavit. Pannell did not do so, even though he was given ninety days to
       comply with the post-conviction court’s requirements. Accordingly, we conclude that the post-conviction
       court’s finding was not erroneous.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015               Page 36 of 37
[67]   Because we do not find any error in the post-conviction court’s conclusions, we

       conclude that the post-conviction court properly denied Pannell’s petition for

       post-conviction relief.


       Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1308-PC-415 | May 28, 2015   Page 37 of 37
