Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
                                                             FILED
                                                           Jan 25 2013, 9:57 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the                         CLERK
                                                                of the supreme court,
law of the case.                                                court of appeals and
                                                                       tax court




APPELLANT PRO SE:                                ATTORNEYS FOR APPELLEE:

DAVID MCCOMBS                                    GREGORY F. ZOELLER
Pendleton, Indiana                               Attorney General of Indiana

                                                 IAN MCLEAN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DAVID MCCOMBS,                                   )
                                                 )
       Appellant-Petitioner,                     )
                                                 )
              vs.                                )       No. 49A05-1111-PC-658
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Defendant.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Grant W. Hawkins, Judge
                          Cause Nos. 49G05-0408-PC-154588
                                     49G05-0409-PC-160786



                                      January 25, 2013


               MEMORANDUM DECISION - NOT FOR PUBLICATION


ROBB, Chief Judge
                                  Case Summary and Issue

      David McCombs, pro se, appeals the post-conviction court’s denial of his petition

for post-conviction relief.     McCombs raises one consolidated and restated issue on

appeal: whether he was denied the effective assistance of his trial and/or appellate

counsel. Concluding that McCombs was not denied the effective assistance of trial or

appellate counsel, we affirm.

                                Facts and Procedural History

      On June 16, 2005, following a bench trial, McCombs was found guilty of murder,

theft, and carrying a handgun without a license. McCombs was sentenced to sixty years

for murder, concurrent with one year for the handgun violation, to be followed by a

consecutive two year sentence for theft. On direct appeal, McCombs challenged the

sufficiency of the evidence supporting the murder conviction, and we affirmed.

McCombs v. State, 845 N.E.2d 264, No. 49A02-0508-CR-715 (Ind. Ct. App., Feb. 28,

2006). In June 2010, McCombs filed a pro se petition for post-conviction relief, and the

court held an evidentiary hearing in December 2010. On October 27, 2011, the post-

conviction court entered findings of fact and conclusions of law denying McCombs’s

petition. This appeal followed.

                                  Discussion and Decision

                                   I. Standard of Review

      To prevail on appeal from the denial of post-conviction relief, the petitioner must

show that the evidence is without conflict and leads unerringly and unmistakably to a

conclusion opposite that reached by the post-conviction court. Thacker v. State, 715

N.E.2d 1281, 1284 (Ind. Ct. App. 1999), trans. denied.         A post-conviction court’s
                                             2
findings and judgment will be reversed only upon a showing of clear error, which is error

that leaves us with a definite and firm conviction that a mistake has been made.

Benefield v. State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011). We accept the post-

conviction court’s findings of fact unless they are clearly erroneous, but we do not defer

to the post-conviction court’s conclusions of law. Id.

       We review claims of ineffective assistance of counsel under the two prongs set

forth in Strickland v. Washington, 466 U.S. 668 (1984). Bieghler v. State, 690 N.E.2d

188, 192 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998). The same standard applies to

claims of ineffective assistance of trial or appellate counsel. Id. To prevail on a claim of

ineffective assistance of counsel, the petitioner must show that his counsel’s performance

fell below an objective standard of reasonableness as determined by prevailing norms,

and that the lack of reasonable representation prejudiced him. Randolph v. State, 802

N.E.2d 1008, 1013 (Ind. Ct. App. 2004), trans. denied. To satisfy the first prong, the

petitioner must show that counsel’s performance was deficient in that counsel’s

representation fell below an objective standard of reasonableness and that counsel

committed errors so serious that petitioner did not have the “counsel” guaranteed by the

Sixth Amendment.      Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006).           To show

prejudice, the petitioner must show a reasonable probability that, but for counsel’s errors,

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

probability sufficient to undermine confidence in the outcome.         Pruitt v. State, 903

N.E.2d 899, 906 (Ind. 2009).

       Under this standard, judicial scrutiny of counsel’s performance must be highly

deferential, and there is a strong presumption that counsel’s conduct falls within the wide
                                             3
range of reasonable professional assistance.       Bieghler, 609 N.E.2d at 192 (citing

Strickland, 466 U.S. at 698). Counsel is afforded considerable discretion in choosing

strategy and tactics and we will accord that decision deference. Randolph, 802 N.E.2d at

1013. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do

not necessarily render representation ineffective. Id. Additionally, ineffective assistance

is very rarely found in cases where a defendant asserts that appellate counsel failed to

raise an issue on direct appeal. Reed, 856 N.E.2d at 1196. One reason for this is that the

decision of what issues to raise is one of the most important strategic decisions to be

made by appellate counsel. Id.

       Finally, we note that the two prongs of the Strickland test are separate and

independent inquiries. Therefore, if it is easier to dispose of an ineffectiveness claim on

the ground of lack of sufficient prejudice, we may determine the prejudice prong first

without inquiring into whether counsel’s performance was adequate. Thacker v. State,

715 N.E.2d 1281, 1284 (Ind. Ct. App. 1999), trans. denied.

                                 II. Assistance of Counsel

                                     A. Trial Counsel

       McCombs claims that he was denied the effective assistance of his trial counsel

because trial counsel failed to interview any of the State’s witnesses, failed to investigate

possible defenses, and failed to object to the prosecutor’s closing argument. As to

interviewing State witnesses and investigating defenses, the record clearly shows that

trial counsel at minimum deposed the State’s chief witness, used investigators to search

for potential witnesses, and investigated all leads toward which McCombs directed him.

Further, he had a mentor as co-counsel, and had at least one brainstorming session with
                                             4
other public defenders, in addition to other preparation. It does not appear that counsel’s

performance was deficient, and McCombs points to no specific actions that counsel

should have taken that would have resulted in a different outcome to the proceeding.

       As to the prosecutor’s closing argument, McCombs points to one page of the trial

transcript, although not to any particular wording with which he has a problem. When

reviewing a charge of prosecutorial misconduct, we employ a two-step analysis: first, we

consider whether the prosecutor engaged in misconduct; and second, we consider all the

circumstances of the case to determine whether such misconduct placed the defendant in

a position of grave peril to which he should not have been subjected. Ratliff v. State, 741

N.E.2d 424, 428-29 (Ind. Ct. App. 2000), trans. denied.

       McCombs’s brief indicates that his concern centers on statements that the

prosecutor made relating to a key witness’s credibility. “The prosecutor may argue both

law and facts and propound conclusions based upon his or her analysis of the evidence.

It is proper to state and discuss the evidence and all reasonable inferences to be drawn

therefrom, provided the prosecutor does not imply personal knowledge independent of

the evidence.” Marsillett v. State, 495 N.E.2d 699, 708 (Ind. 1986) (citations omitted).

The cited page of the transcript includes the following statements from the prosecutor to

the judge regarding the State’s chief witness, Mr. Farries:

       And you have to remember these gentlemen were friends. There’s no bias
       or motivation on behalf of Mr. Farries to testify adversely against this
       defendant. . . . I submit Mr. Farries has been honest with this court, and has
       been truthful, but for an argument on who the direct connection in giving
       the gun to the defendant. Again, he’s under oath, subjected himself in his
       mind to legal ramifications for being a felon in possession of a firearm.




                                             5
Trial Transcript at 165. On reviewing the relevant portion of the trial transcript, we, like

the post-conviction court, find no statements by the prosecutor that implied independent

personal knowledge or were anything other than a conclusion based on the available

evidence.       Without misconduct, not only did the prosecutor’s argument not place

McCombs in a position of grave peril, but we also cannot say that an objection from trial

counsel would have led the proceeding to a different result. McCombs has not shown

that the evidence is without conflict and leads unerringly and unmistakably to a

conclusion opposite that reached by the post-conviction court as to the assistance of his

trial counsel.

                                            B. Appellate Counsel

         To the extent McCombs claims ineffective assistance of appellate counsel for

failing to appeal his sentence or the prosecutor’s closing argument, those claims are not

available on appeal here because they were not raised in the petition for post-conviction

relief below.1 McCombs’s only claim of ineffective assistance of appellate counsel in his

petition was for failure to raise the issue of ineffective assistance of trial counsel. Having

concluded above that trial counsel was not ineffective, we conclude here that the outcome

would not likely have been any different had McCombs’s appeal included an issue of

ineffective assistance of trial counsel. Therefore, appellate counsel was not ineffective

for not having raised the issue. McCombs has not shown that the evidence is without


         1
           To the extent that McCombs raises an independent issue related to his sentence, the post-conviction court
correctly noted that issue has been waived because it was available on appeal, and so is not available for post-
conviction relief. Timberlake v. State, 753 N.E.2d 591, 597-98 (Ind. 2001) (“If an issue was known and available,
but not raised on direct appeal, it is waived.”), cert. denied, 537 U.S. 839. Even if it were not waived, we have
reviewed the record and conclude that the sentence was neither inappropriate nor an abuse of discretion.
         We also note that a copy of the petition for post-conviction relief is not a part of the record on appeal, but
the post-conviction court issued detailed findings of fact and conclusions of law that aided our review of this case.

                                                          6
conflict and leads unerringly and unmistakably to a conclusion opposite that reached by

the post-conviction court.

                                       Conclusion

       Concluding that McCombs was not denied the effective assistance of either trial or

appellate counsel, and that the evidence does not lead to a result unmistakably opposite to

that reached by the post-conviction court, we affirm.

       Affirmed.

MAY, J., and PYLE, J., concur.




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