MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                 Jul 31 2020, 10:09 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
James Carr                                                Curtis T. Hill, Jr.
Michigan City, Indiana                                    Attorney General of Indiana

                                                          Angela N. Sanchez
                                                          Assistant Section Chief, Criminal
                                                          Appeals

                                                          Sierra A. Murray
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Carr,                                               July 31, 2020
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          18A-PC-2831
        v.                                                Appeal from the Fulton Superior
                                                          Court
State of Indiana,                                         The Honorable Wayne E. Steele,
Appellee-Respondent.                                      Judge
                                                          Trial Court Cause No.
                                                          25D01-1305-PC-319



Bradford, Chief Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020                      Page 1 of 27
                                           Case Summary
[1]   In 2006, James A. Carr was charged with the murder of Roy Shaffer. Carr was

      subsequently found guilty and sentenced to a fifty-five-year term of

      incarceration. We affirmed Carr’s conviction on August 9, 2012. In 2013, Carr

      filed a pro-se petition seeking post-conviction relief (“PCR”), arguing that he had

      not received a fair trial and that he had received ineffective assistance of trial

      counsel. Following a hearing, the post-conviction court denied Carr’s PCR

      petition. We affirm.



                            Facts and Procedural History
[2]   Our memorandum decision in Carr’s second direct appeal, which was handed

      down on August 9, 2012, instructs us to the underlying facts and procedural

      history leading to this post-conviction appeal:


              On November 4, 2006, Carr entered the Denton Corner Tavern
              in Monterey, Indiana. The bartender, Jan French, was informed
              by a customer that Carr had blood on his pants. French spoke
              with Carr, and Carr said that he needed to go home. French did
              not believe that Carr could safely drive because he was
              intoxicated. French offered to drive him home and arranged to
              have Darlene Denton, the tavern owner, follow them in a
              separate vehicle.

              During the drive, Carr informed French that “he was going to
              jail.” Tr. p. 381. She assured him that he need not worry
              because she was driving. He then told her that he had shot Roy
              Shaffer. He said that Shaffer “wouldn’t tell me the truth, so I
              pulled the trigger.” Id. at 382. Carr was allowing Shaffer to stay
              at Carr’s mother’s vacant house and was providing support until
      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 2 of 27
        Shaffer could become self-sufficient. Carr and Shaffer had spent
        the night drinking at Shaffer’s home. According to Carr, an
        argument began between the two men, which resulted in the
        shooting.

        After French delivered Carr to his home, she relayed to Denton
        what Carr had told her. French and Denton returned to the
        tavern and called the sheriff’s department to report the incident.
        Both women drove to the house in order to provide the sheriff’s
        department with more information. When they arrived at
        Shaffer’s house, the women found Shaffer lying in a wheelbarrow
        with his legs draped over the side. French was on the phone with
        the sheriff’s department when they discovered Shaffer’s body.

        Deputy Terry Engstrand of the Fulton County Sheriff’s
        Department responded to the dispatch. Deputy Engstrand found
        Shaffer in the wheelbarrow, and it was apparent that he had been
        shot in the face and had a wound on his right cheek. Detective
        Daniel Pryor arrived a short time later. When Detective Pryor
        questioned Denton and French, the women confirmed that Carr
        had admitted to killing Shaffer. Officers searched Carr’s house,
        and he was taken into custody. During the search, Carr said, “I
        haven’t told anyone. Oh wait, I did tell someone.” Id. at 471.

        On November 8, 2006, Carr was charged with murder. A jury
        trial was conducted in April 2009, and Carr was found guilty of
        murder. On June 16, 2009, Carr was sentenced to fifty-five years
        imprisonment. Carr appealed this conviction and raised the issue
        of an erroneous police interview conducted in disregard of his
        right to counsel. In a memorandum decision, we affirmed Carr’s
        conviction. The supreme court, however, granted Carr’s petition
        to transfer, and on September 29, 2010, the supreme court
        reversed our determination and remanded the case for a new
        trial.

        On March 1, 2011, Carr requested a change of venue and moved
        for a change of judge. On April 8, 2011, the trial court found that
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 3 of 27
        Carr’s motion for change of venue was premature and denied his
        motion for change of judge. On September 6, 2011, Carr filed a
        petition for writ of mandamus in our supreme court requesting
        the trial court be ordered to grant his motion for change of judge.
        The supreme court denied Carr’s petition stating that it was not
        timely filed and that it failed to demonstrate any bias. See
        Appellant App. p. 467.

        A second jury trial was conducted in October 2011. At the trial,
        the State presented evidence from forensic pathologist Dr. Joseph
        Prahlow who performed the autopsy on Shaffer. Dr. Prahlow
        concluded that Shaffer suffered a stellate shotgun wound to the
        face. Shaffer’s wound also showed signs of soot on the outside of
        and deep within the wound. Through his study of the wound,
        which included an examination of the soot and the charring of
        the wound, he could not determine if the wound was inflicted
        from a distance or in contact with Shaffer’s face. He did state
        that it was unlikely to find deep charring in a distant wound and
        that Shaffer’s wound had signs that were more characteristic of a
        contact wound.

        Carr’s counsel presented two hypothetical scenarios to Dr.
        Prahlow during cross-examination. First, counsel asked whether
        the wound was consistent with a scenario in which a person is
        holding a shotgun, stumbles, reaches across a table, and
        discharges a gun. Dr. Prahlow agreed that this is a possible
        scenario in which the wound could have occurred. Second,
        Carr’s counsel asked if the wound was consistent with a scenario
        in which one person is holding the shotgun and the victim shoves
        the person who falls to the floor and pulls the trigger as a result of
        the fall. Again, Dr. Prahlow agreed. Beyond the presentation of
        these hypothetical scenarios, Carr provided no evidence to prove
        the hypothetical scenarios.

        At trial, Carr tendered a jury instruction on the lesser included
        offense of reckless homicide. Carr asserted that there was a
        serious evidentiary dispute as to Carr’s state of mind at the time
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 4 of 27
              of the shooting, which was evidenced by Dr. Prahlow’s positive
              responses to his hypothetical scenarios. The trial court denied
              this request, finding no serious evidentiary dispute, and
              instructed the jury only on the charge of murder. The jury found
              Carr guilty of murder, and he was sentenced to fifty-five years.


      Carr v. State, 25A04-1112-CR-650 *1–2 (Ind. Ct. App. August 9, 2012) (“Carr

      II”). Carr appealed his murder conviction following his second trial, arguing

      that the trial court had erred by not granting his motion for a change of judge

      and by denying his request for an instruction on the lesser-included offense of

      reckless homicide. Id. at *2–3. Concluding that Carr had not demonstrated

      that the trial court erred in either regard, we affirmed Carr’s conviction. Id. at

      *2–3.


[3]   On May 20, 2013, Carr filed a pro se PCR petition and a motion for a change of

      judge. The post-conviction court denied Carr’s motion for a change of judge on

      July 19, 2013. Carr subsequently amended his PCR petition on July 9, 2014,

      and again on March 20, 2017.


[4]   On January 26, 2018, Carr filed a motion in which it requested that the post-

      conviction court “reverse Carr’s conviction on summary disposition.”

      Appellant’s App. Vol. III p. 110. The State objected to Carr’s request for a

      summary disposition. Finding “that there are material issues of fact that are in

      dispute and are not appropriately resolved by summary disposition,” the post-

      conviction court denied Carr’s motion. Appellant’s App. Vol. III p. 133. The

      post-conviction court conducted an evidentiary hearing on July 24, 2018. On



      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 5 of 27
      October 29, 2018, the post-conviction court issued an order denying Carr’s PCR

      petition.



                                 Discussion and Decision
[5]   Carr contends that the post-conviction court erred in denying his PCR petition.

      Post-conviction procedures do not afford the petitioner with a super-appeal.

      Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a

      narrow remedy for subsequent collateral challenges to convictions, challenges

      which must be based on grounds enumerated in the post-conviction rules. Id.

      A petitioner who has been denied post-conviction relief appeals from a negative

      judgment and as a result, faces a rigorous standard of review on appeal. Dewitt

      v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942

      (Ind. Ct. App. 1999), trans. denied.


[6]   Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,

      745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his

      claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);

      Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition,

      a petitioner must convince this court that the evidence, taken as a whole, “leads

      unmistakably to a conclusion opposite that reached by the post-conviction

      court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without

      conflict and leads to but one conclusion, and the post-conviction court has

      reached the opposite conclusion, that its decision will be disturbed as contrary

      to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 6 of 27
      The post-conviction court is the sole judge of the weight of the evidence and the

      credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).


[7]   In challenging the denial of his PCR petition, Carr alleges that the post-

      conviction court committed certain errors, that the prosecutor committed

      certain instances of prosecutorial misconduct, and that he suffered ineffective

      assistance of counsel. The State points out that “Carr raises numerous claims in

      various–sometimes unclear–legal and procedural postures.” Appellee’s Br. p.

      21. We agree with the State that “[i]t is often unclear whether [Carr] intends to

      address a claim as a freestanding claim of error or as an allegation of ineffective

      assistance by one of the many attorneys who represented him through his two

      trials, two direct appeals, and post-conviction hearing.” Appellee’s Br. p. 21.

      Despite the unclear nature of some of Carr’s arguments, we will nonetheless

      address each of his arguments below.


                I. Denial of Motion for Summary Disposition
[8]   Carr contends that the post-conviction court abused its discretion by denying

      his request for summary disposition of his PCR petition. Post-Conviction Rule

      1(4)(g) provides that


              [t]he court may grant a motion by either party for summary
              disposition of the petition when it appears from the pleadings,
              depositions, answers to interrogatories, admissions, stipulations
              of fact, and any affidavits submitted, that there is no genuine
              issue of material fact and the moving party is entitled to
              judgment as a matter of law. The court may ask for oral
              argument on the legal issue raised. If an issue of material fact is


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 7 of 27
               raised, then the court shall hold an evidentiary hearing as soon as
               reasonably possible.


[9]    Carr requested that the post-conviction court “reverse Carr’s conviction on

       summary disposition.” Appellant’s App. Vol. III p. 110. The post-conviction

       court denied Carr’s motion for summary disposition, finding “that there are

       material issues of fact that are in dispute and are not appropriately resolved by

       summary disposition.” Appellant’s App. Vol. III p. 133. Carr argues on appeal

       that the post-conviction court abused its discretion because the court should

       have unilaterally separated the issues in which he claims there was no genuine

       issue of material fact and grant partial summary disposition on those claims.

       Carr presents no authority indicting that the post-conviction court was under an

       obligation to do so, and we are aware of none. Carr did not request partial

       summary disposition, but rather full summary disposition. Given the post-

       conviction court’s determination that there were issues of material fact in

       dispute, we conclude that the post-conviction court did not abuse its discretion

       in denying Carr’s request for summary disposition.


                     II. Denial of Motion for Change of Judge
[10]   Initially we note that many of the allegations raised against the trial court by

       Carr occurred prior to his second trial. In the direct appeal from Carr’s second

       trial, Carr argued that the trial court had erred by denying his request for a

       change of judge. Carr II, 25A04-1112-CR-650 *2. We concluded on appeal that

       Carr had not alleged any specific bias or presented any evidence to suggest any

       personal prejudice on behalf of the trial court judge. Id. at * 2–3. We therefore

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 8 of 27
       concluded that “Carr ha[d] not demonstrated that the trial court erred when it

       denied his motion for a change of judge.” Id. at *3. As such, to the extent that

       Carr’s post-conviction argument can be read as a challenge to the trial court’s

       denial of his pre-trial request for a change of judge, such a challenge is barred by

       the doctrine of res judicata. See Maxey v. State, 596 N.E.2d 908, 911 (Ind. Ct.

       App. 1992) (“Issues previously decided adversely to a petitioner’s position are

       res judicata and not subject to further examination.”).


[11]   To the extent that Carr’s argument relates to the denial of his post-conviction

       motion for a change of judge, Carr contends that the post-conviction court’s

       prior orders, entered in the court’s position as the trial court, demonstrate bias.

       Specifically, Carr claims that the post-conviction court’s “rulings on this matter

       remain speculative, subsequently unfounded and prejudicial.” Appellant’s Br.

       p. 18. Carr suggests that it is possible that the post-conviction court had

       “preconceived notions of Carr’s criminal guilt and prejudicial personal beliefs

       as to Carr’s character.” Appellant’s Br. p. 19.


[12]   When the impartiality of the judge is challenged on appeal, “we will presume

       that the judge is unbiased and unprejudiced. Perry v. State, 904 N.E.2d 302, 307

       (Ind. Ct. App. 2009) (citing Smith v. State, 770 N.E.2d 818, 823 (Ind. 2002)).


               To rebut that presumption, the defendant “must establish from
               the judge’s conduct actual bias or prejudice that places the
               defendant in jeopardy.” [Smith, 770 N.E.2d at 823]. “To assess
               whether the judge has crossed the barrier into impartiality, we
               examine both the judge’s actions and demeanor.” Timberlake v.
               State, 690 N.E.2d 243, 256 (Ind. 1997).

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 9 of 27
       Id. at 307–08 (Ind. Ct. App. 2009). We have previously concluded that

       “adverse rulings alone are insufficient to establish bias per se.” Id. at 308 (citing

       Moore v. Liggins, 685 N.E.2d 57, 63 (Ind. Ct. App. 1997)). “Furthermore, bias

       will rarely, if ever, be found on the face of rulings alone because the defendant

       must show an improper or extra-judicial factor or such a high degree of

       favoritism that a fair judgment was impossible.” Id. (citing Crawford v. State,

       634 N.E.2d 86, 87 (Ind. Ct. App. 1994)). Carr has offered no evidence that the

       post-conviction court derived its decisions from an improper source or was

       motivated by the type of hostility necessary to establish judicial bias. As such,

       Carr has failed to establish that the post-conviction court’s prior rulings

       establish bias.


[13]   Apart from his argument relating to the court’s prior rulings, Carr argues that

       the post-conviction court was a witness to events which allegedly occurred in

       the court’s chambers prior to his first trial. Carr, however, does not specify

       what was discussed in the court’s chambers or how it was prejudicial to or

       suggests bias against him. The post-conviction court found that “The Court

       having reviewed [Carr’s] affidavit in support of his motion for change of judge

       shows no historical facts that demonstrate bias or prejudice on the part of the

       Judge.” Appellee’s App. Vol. II p. 23. Based on the record before us, we must

       agree with the post-conviction court that Carr has failed to establish either bias

       or prejudice with regard to any events which allegedly occurred in the court’s

       chambers prior to Carr’s first trial. The post-conviction court, therefore, did not

       err in denying Carr’s motion for a change of judge.


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 10 of 27
                           III. Search of Kewanna Residence
[14]   Carr contends that the post-conviction court abused its discretion in

       determining that the warrantless search of Shaffer’s residence, i.e., the Kewanna

       residence, was justified. Specifically, he argues that (A) a search warrant was

       necessary because French and Denton acted as agents of law enforcement when

       they went to Shaffer’s home after Carr admitting to killing Shaffer and (B) the

       post-conviction court “misinterpreted and/or misapplied the law” regardless

       warrantless searches. Appellant’s Br. p. 24. However, to the extent that Carr

       raises independent arguments relating to the warrantless search of the Kewanna

       residence, such claims are not available for post-conviction review as they were

       known and available at the time of Carr’s direct appeal. See Timberlake v. State,

       753 N.E.2d 591, 598 (Ind. 2001) (providing that an issue that was known and

       available on direct appeal and is not available as a freestanding claim in

       postconviction relief); Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993)

       (“Issues which were or could have been raised on direct appeal are not available

       for review in post-conviction.”).


                           IV. “Speedy Trial” Right Violated
[15]   At his first trial, Carr filed a motion for discharge, claiming that because he had

       not been brought to trial within the required one-year period, the murder charge

       should be dismissed pursuant to Indiana Criminal Rule 4(C). In support of his

       motion, Carr argued that two continuances, both of which his counsel had

       agreed should be attributed to Carr, were erroneously attributed to him. The

       trial court denied Carr’s motion and Carr subsequently challenged the denial on
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 11 of 27
appeal. Holding that the trial court had not erred in denying Carr’s motion, the

Indiana Supreme Court stated the following:


        The defendant’s appellate claim of error in denying his motion
        for discharge is predicated upon his assertion that these two
        continuances should not have been charged to the defendant.
        Rejecting this claim, we find no error in the trial court’s decision
        to charge both delays to the defendant and thus to deny the
        defendant’s motion for discharge under Criminal Rule 4(C).


Carr v. State, 934 N.E.2d 1096, 1101 (Ind. 2010) (“Carr I”). Thus, to the extent

that Carr’s arguments in the instant appeal can be read as rehashing this

argument, Carr’s arguments are barred by the doctrine of res judicata. See

Maxey, 596 N.E.2d at 911 (“Issues previously decided adversely to a petitioner’s

position are res judicata and not subject to further examination.”). To the extent

that Carr’s arguments in the instant appeal can be read as a different challenge

than that raised in his first direct appeal, such arguments are not available for

post-conviction review as they were known and available at the time of Carr’s

direct appeal. See Timberlake, 753 N.E.2d at 598 (providing that an issue that

was known and available on direct appeal and is not available as a freestanding

claim in postconviction relief); Weatherford, 619 N.E.2d at 917 (“Issues which

were or could have been raised on direct appeal are not available for review in

post-conviction.”).




Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 12 of 27
                V. French’s Inconsistent Testimony During the
                             Evidentiary Hearing
[16]   During the evidentiary hearing, French testified, for the first time, that Carr told

       her on the night of Shaffer’s murder that “as far as he knew, the gun didn’t

       work.” PCR Tr. Vol. II p. 142. French admitted that she had “never said

       anything about the gun not working” despite testifying at both of Carr’s trials

       and participating in police interviews. PCR Tr. Vol. II p. 155. Carr asserts on

       appeal that the post-conviction court erred in denying his PCR petition because

       French’s statements.


[17]   To the extent that he raises a free-standing claim with regard to French’s

       testimony, Carr essentially seems to argue that French’s testimony should be

       treated as newly discovered evidence. We disagree.


               [N]ew evidence will mandate a new trial only when the
               [petitioner] demonstrates that: (1) the evidence has been
               discovered since the 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) the evidence 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 retrial. See Fox v. State, 568 N.E.2d
               1006, 1007 (Ind. 1991). This Court analyzes these nine factors
               with care, as “[t]he basis for newly discovered evidence should be
               received with great caution and the alleged new evidence
               carefully scrutinized.” Reed v. State, 508 N.E.2d 4, 6 (Ind. 1987).


       Carter v. State, 738 N.E.2d 665, 671 (Ind. 2000). “The burden of showing that

       all nine requirements are met rests with the petitioner for post-conviction

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 13 of 27
       relief.” Taylor v. State, 840 N.E.2d 324, 330 (Ind. 2006) (citing Webster v. State,

       699 N.E.2d 266, 269 (Ind. 1998)). Carr has failed to prove that French’s

       testimony was not merely impeaching. He has therefore failed to carry his

       burden of proving that French’s testimony during the evidentiary hearing was

       newly discovered evidence that would warrant a new trial.


                                VI. Prosecutorial Misconduct
[18]   Carr raises numerous claims of alleged prosecutorial misconduct. The vast

       majority of these claims relate to actions and delays which allegedly occurred

       prior to or during his two trials. To the extent that Carr’s claims relate back to

       alleged misconduct that occurred prior to and during his two trials, such claims

       are not available for post-conviction review as they were known and available

       at the time of Carr’s direct appeals. See Timberlake, 753 N.E.2d at 598

       (providing that an issue that was known and available on direct appeal and is

       not available as a freestanding claim in postconviction relief); Weatherford, 619

       N.E.2d at 917 (“Issues which were or could have been raised on direct appeal

       are not available for review in post-conviction.”).


[19]   Carr identifies one instance of alleged prosecutorial misconduct during the post-

       conviction proceedings. Specifically, Carr asserts that the prosecutor

       committed misconduct by testifying as a witness during the evidentiary hearing.

       Any potential error or misconduct, however, was invited by Carr as Carr called

       the prosecutor as a witness and made no effort to have him replaced as

       prosecutor. “[A] ‘party will not be permitted to take advantage of errors which


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 14 of 27
       he himself committed or invited or induced the trial court to commit, or which

       were the natural consequences of his own neglect or misconduct.’” Batchelor v.

       State, 119 N.E.3d 550, 557 (Ind. 2019) (quoting Jolly v. Modisett, 257 Ind. 426,

       429, 275 N.E.2d 780, 782 (1971)). Stated differently, a petitioner “may not

       invite error and then complain on review.” Joyner v. State, 736 N.E.2d 232, 237

       (Ind. 2000). Carr’s claims relating to the prosecutor’s alleged misconduct are

       therefore waived.1


                    VII. Ineffective Assistance of Trial Counsel
[20]   The right to effective counsel is rooted in the Sixth Amendment to the United

       States Constitution. Taylor, 840 N.E.2d at 331. “‘The Sixth Amendment

       recognizes the right to the assistance of counsel because it envisions counsel’s

       playing a role that is critical to the ability of the adversarial system to produce

       just results.’” Id. (quoting Strickland v. Washington, 466 U.S. 668, 685 (1984)).

       “‘The benchmark for judging any claim of ineffectiveness must be whether

       counsel’s conduct so undermined the proper functioning of the adversarial




       1
         Furthermore, to the extent that Carr asserts that the post-conviction court erred by failing to act sua sponte
       to appoint a special prosecutor, Carr’s argument on appeal is wholly focused on the alleged misconduct by
       the prosecutor, apart from the single, undeveloped and unsupported statement that Carr was prejudiced “by
       the failure of [the post-conviction court] to raise a sua sponte issue concerning the validity of the proceedings.”
       Appellant’s Br. p. 36. We conclude that Carr’s assertion relating to the post-conviction court is waived for
       failure to make a cogent argument that is supported by relevant authority. See Martin v. Hunt, 130 N.E.3d
       135, 137 (Ind. Ct. App. 2019) (“Failure to present a cogent argument results in waiver of the issue on
       appeal.”); Ind. Appellate Rule 8(A)(8)(a) (“The argument must contain the contentions of the appellant on
       the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the
       authorities, statutes, and the Appendix or parts of the Record of Appeal relied on.”).

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020                        Page 15 of 27
       process that the trial cannot be relied on as having produced a just result.’” Id.

       (quoting Strickland, 466 U.S. at 686).


[21]   A successful claim for ineffective assistance of counsel must satisfy two

       components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first

       prong, the petitioner must establish that counsel’s performance was deficient by

       demonstrating that counsel’s representation “fell below an objective standard of

       reasonableness, committing errors so serious that the defendant did not have

       the ‘counsel’ guaranteed by the Sixth Amendment.” Id. We recognize that

       even the finest, most experienced criminal defense attorneys may not agree on

       the ideal strategy or most effective way to represent a client, and therefore,

       under this prong, we will assume that counsel performed adequately and defer

       to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585

       (Ind. 2002). Isolated mistakes, poor strategy, inexperience, and instances of

       bad judgment do not necessarily render representation ineffective. Id.


[22]   Under the second prong, the petitioner must show that the deficient

       performance resulted in prejudice. Reed, 866 N.E.2d at 769. A petitioner may

       show prejudice by demonstrating that there is “a reasonable probability (i.e. a

       probability sufficient to undermine confidence in the outcome) that, but for

       counsel’s errors, the result of the proceeding would have been different.” Id. A

       petitioner’s failure to satisfy either prong will cause the ineffective assistance of

       counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently,

       “[a]lthough the two parts of the Strickland test are separate inquires, a claim



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 16 of 27
       may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031

       (Ind. 2006) (citing Williams, 706 N.E.2d at 154).


             A. Collective Counsel’s Alleged Failure to Investigate
            whether French and Denton Acted as Agents of the State
[23]   Carr argues that collective counsel2 “either failed to investigate [whether French

       and Denton acted as agents of the State] in order to challenge [the] State’s

       warrantless search [of the Kewanna property] as being initiated by agents of the

       government or simply ignored Carr’s constitutional protections.” Appellant’s

       Br. p. 21. “An attorney ‘has a duty to make a reasonable investigation or to

       make a reasonable decision that the particular investigation is unnecessary.’”

       Warren v. State, 146 N.E.3d 972, 978 (Ind. Ct. App. 2020) (quoting Ritchie v.

       State, 875 N.E.2d 706, 719-720 (Ind. 2007)). Carr has failed to present any

       evidence or argument supporting his assertion that collective counsel did not

       investigate any and all potential issues relating to the search of the Kewanna

       property. In denying Carr’s claim of ineffective assistance of counsel, the post-

       conviction court found “that the Petitioner presented no affirmative evidence to

       support this claim and the Court can find no evidence in the record that would

       support any such claim by a preponderance of the evidence.” Appellee’s Br. p.

       11. We agree with the post-conviction court and conclude that Carr has failed




       2
         Carr was represented by five different attorneys during trial court and prior appellate proceedings. In
       arguing that he received ineffective assistance of counsel, he refers to them collectively as “collective
       counsel.” Except where Carr alleges ineffective assistance by a particular attorney, we will do the same.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020                    Page 17 of 27
       to establish that his collective trial counsel provided ineffective assistance in this

       regard.


               B. Collective Counsel’s Failure to Move to Suppress
                                   Evidence
[24]   Carr also argues that his collective counsel provided ineffective assistance by

       failing to move to suppress evidence recovered during the search of the

       Kewanna property. Specifically, he argues that collective counsel failed “to

       hold [the] State to its adversarial burden.” Appellant’s Br. p. 24. Carr also

       argues that collective counsel’s failure “to raise this issue prior to trial and at

       trial as well as the failure of Appellate Counsel to raise this issue as

       fundamental error on appeal, collectively fall [sic] below an acceptable standard

       for Indiana attorneys, and Carr has suffered significant financial loss, public

       deprecation of character, and legal prejudice due to their ineffectiveness.”

       Appellant’s Br. p. 30.


[25]   In raising these assertions, Carr argues that because the State failed to justify the

       warrantless search of the Kewanna property and he had standing to challenge

       the constitutionality of the search, his collective counsel were ineffective for

       failing to challenge the admissibility of the evidence prior to or at either trial or

       to raise the issue in either of his direct appeals. The post-conviction court

       rejected Carr’s claim of ineffective assistance, finding that Carr “has failed to

       meet his burden of proof that he had standing to object to the warrantless search

       of the Kewanna residence and the Court finds that the Petitioner did not have



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 18 of 27
       such standing and his attorneys were not ineffective for not filing a motion to

       suppress.” Appellee’s App. Vol. II p. 18.


[26]   However, regardless of whether Carr had standing to challenge the

       constitutionality of the search warrant, he has failed to demonstrate prejudice.

       Carr’s identity as the shooter was never in question, as he had admitted to

       French that he shot Shaffer during an argument. As such, collective counsel

       appear to have made the strategic decision to attempt to negate the mens rea

       requirement of the crime and to prove that Carr should, at most, be found guilty

       of a lesser-included offense of murder. Attorney J.A. Rigdon testified at the

       evidentiary hearing that evidence recovered from the Kewanna residence

       supported a theory that “this was something possibly done during a struggle

       over a gun, as opposed to with malice or forethought.” PCR Tr. Vol. II p. 122.

       We agree with the State that “not filing a motion to suppress the evidence was a

       reasonable trial strategy because the evidence bolstered Carr’s theory of the

       case.” Appellee’s Br. p. 33. Carr points to no evidence that was recovered

       during the search of the Kewanna residence that he claims that the jury was

       likely to have relied on in finding him guilty of murder. Further, we find it

       much more likely that in finding Carr guilty of murder, the jury relied on his

       admission to French that he had shot Shaffer together with the gun recovered

       during the unchallenged search of his home than any unspecified evidence

       recovered during the search of the Kewanna residence.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 19 of 27
        C. Collective Counsel’s Alleged Failure to Interview French
[27]   Carr argues that is collective counsel’s “failure to interview French or make any

       attempt to corroborate Carr’s Initial Interview statements falls below an

       acceptable standard for Indiana attorneys and represents ineffective assistance

       of counsel.” Appellant’s Br. p. 31. Allegations that counsel “failed to

       investigate issues and interview witnesses do not amount to ineffective

       assistance absent a showing of what additional information may have been

       garnered from further consultation or investigation and how that additional

       information would have aided in the preparation of the case.” Coleman v. State,

       694 N.E.2d 269, 274 (Ind. 1998) (citing Brown v. State, 691 N.E.2d 438, 446–47

       (Ind. 1998)).


[28]   Carr asserts that his collective counsel should have interviewed French in order

       to obtain her post-conviction testimony that Carr did not believe the gun was in

       working condition on the night of Shaffer’s death. The record reveals that

       French had been interviewed by police prior to Carr’s first trial and had made

       no indication that Carr had claimed to have believed that the gun did not work.

       Nothing from the record indicates even the possibility that French would have

       made statements to counsel that differed from those made to police. Carr does

       not claim that he ever informed counsel that he had told French that he did not

       believe the gun worked and there is no evidence to suggest that counsel had any

       reason to believe that such evidence might exist or pursue such a line of inquiry.

       French did not make the revelation about Carr’s alleged belief until many years

       after the fact and after she had been interviewed by police and had testified and

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 20 of 27
       been cross-examined during Carr’s two trials. In denying Carr’s claim, the post-

       conviction court found that “Petitioner has presented no affirmative evidence to

       support these claims and the court can find no evidence in the record that

       would support any such claims by a preponderance of the evidence.”

       Appellee’s App. Vol. II p. 12. We agree with the post-conviction court and

       conclude that Carr has failed to prove either deficient performance or that he

       was prejudiced by counsels’ failure to interview French.


          D. Counsel’s Failure to Call Carr to Testify at his Second
                                   Trial
[29]   Carr also argues that attorney J.A. Rigdon, his counsel during his second trial,

       provided ineffective assistance by failing to call him as a witness during his

       second trial. He asserts this deprived him of his constitutional right to testify on

       his own behalf. “Our supreme court has stated that counsel’s decision to not

       have the defendant testify is a trial tactic that should not be second guessed on

       appeal.” Moore v. State, 655 N.E.2d 1251, 1254 (Ind. Ct. App. 1995) (citing Ford

       v. State, 523 N.E.2d 742, 747 (Ind. 1988)). Further, while the right to testify “is

       personal and cannot be waived by counsel as a matter of trial strategy[,] … [i]t

       is not enough … for the defendant to merely assert after trial that he wanted to

       testify and his counsel would not let him.” Moore, 655 N.E.2d at 1254.


               “[T]his barebones assertion by a defendant, albeit made under
               oath, is insufficient to require a hearing or other action on his
               claim that his right to testify in his own defense was denied him.
               It just is too facile a tactic to be allowed to succeed. Some greater
               particularity is necessary—and also we think some substantiation
               is necessary, such as an affidavit from the lawyer who allegedly
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 21 of 27
               forbade his client to testify—to give the claim sufficient
               credibility to warrant a further investment of judicial resources in
               determining the truth of the claim.”


       Id. (quoting Underwood v. Clark, 939 F.2d 473, 476 (7 Cir. 1991)).


[30]   Carr has failed to prove that Rigdon prevented him from testifying. Instead, the

       record demonstrates that Rigdon merely advised against it and Carr decided to

       follow Rigdon’s advice. During the evidentiary hearing, Rigdon testified that

       he and Carr had discussed whether Carr would testify, stating “My recollection

       of the conversations was that [Carr’s] first instinct was that he wanted to talk to

       the jury. And that my advice to him that he not. That I thought it would be

       counter-productive. And that he ultimately consented and went along with my

       advice.” PCR Tr. Vol. II p. 121. Rigdon further explained that he believed it

       would be counter-productive for Carr to testify because it would likely open the

       door to admission of prior incriminating statements made by Carr during his

       interview with police which the Indiana Supreme Court had found to be

       erroneously admitted in Carr I, and which were therefore to be excluded from

       Carr’s second trial. (PCR Tr. Vol. II pp. 130–31)


[31]   In denying Carr’s claim that Rigdon was ineffective in this regard, the post-

       conviction court found


               Petitioner’s counsel at the second trial was his appellate counsel
               following the first trial. Attorney Rigdon was successful in
               reversing the first conviction solely upon the grounds that
               Petitioner’s statement to the police should have been suppressed.
               Had counsel have called on him to testify the improperly

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 22 of 27
               obtained statement, which constituted a complete confession to
               the offense, would have been fully admissible by the State. It is
               inconceivable to the Court that after having the conviction
               reversed on this ground that the petition[er] would then testify
               and thereby open the door to the reintroduction of his confession.
               The Court finds that counsel would more likely have been
               incompetent if he had called or advised the Petitioner to testify.
               The Court finds no evidence to support this claim.


       Appellee’s App. Vol. II p. 11. We agree with the post-conviction court and

       conclude that Carr has failed to prove that Rigdon’s performance, i.e., his

       recommendation that Carr not testify, was deficient or fell below an objective

       standard of reasonableness.


          E. Counsel’s Failure to Proffer a Voluntary Manslaughter
                                 Instruction
[32]   Carr argues that Rigdon provided ineffective assistance during his second trial

       “for not submitting to the Trial Court any further instruction for a lesser

       included offense of murder, especially after presenting a theory of physical

       struggle between Decedent and Carr.” Appellant’s Br. p. 38. “The decision of

       whether or not to present a defense can be considered a matter of trial strategy

       and will not be lightly second guessed.” Whitener v. State, 696 N.E.2d 40, 43

       (Ind. 1998).


               It is well-established that trial strategy is not subject to attack
               through an ineffective assistance of counsel claim, unless the
               strategy is so deficient or unreasonable as to fall outside of the
               objective standard of reasonableness. Garrett v. State, 602 N.E.2d
               139, 142 (Ind. 1992). This is so even when “such choices may be
               subject to criticism or the choice ultimately prove detrimental to
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 23 of 27
               the defendant.” Id.

               Further, this Court has previously held that a tactical decision
               not to tender a lesser included offense does not constitute
               ineffective assistance of counsel, even where the lesser included
               offense is inherently included in the greater offense. Page v. State,
               615 N.E.2d 894, 895 (Ind. 1993). In Page, we concluded: “It is
               not sound policy for this Court to second-guess an attorney
               through the distortions of hindsight.” Id. at 896. There is no
               reason to stray from this policy.


       Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998)


[33]   The record reveals that the trial court refused to tender Carr’s proffered

       voluntary manslaughter instruction during his first trial, finding that “there is

       not a serious evidentiary dispute over the element or elements that distinguish

       the crime charged from those lesser included.” Carr I, 934 N.E.2d at 1111.

       Carr challenged the trial court’s refusal to tender his proffered instruction in his

       first appeal. The Indiana Supreme Court did not consider Carr’s challenge on

       appeal, stating:


               To support the existence of a serious evidentiary dispute that
               would warrant the giving of his tendered lesser included offense
               instructions, the defendant largely relies on evidence from his
               custodial police interview. Because we have determined that it
               should have been excluded by the trial court, this issue is not
               likely to reappear upon retrial and thus does not merit further
               discussion in this appeal.


       Carr I, 934 N.E.2d at 1111. One may infer from the Supreme Court’s statement

       that a request for a voluntary-manslaughter instruction would likely be denied

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 24 of 27
       on retrial as there would not likely be evidence in the record to support giving

       such an instruction.


[34]   Rigdon testified during the evidentiary hearing that he and Carr


               had talked about two or three different lesser includeds. The
               voluntary manslaughter, I think was one that was brought up at
               the first trial. And we went with reckless homicide because that
               was something that had not been considered at the first trial.
               Therefore, I didn’t believe I’d have the same difficultly in
               overcoming the Judge’s decision that he made in the first trial, on
               some the other lesser included charges.


       PCR Tr. Vol. II pp. 126–27. Rigdon’s testimony demonstrates that he made the

       strategic decision to try a different approach, rather than reuse one that had

       been unsuccessful in the first trial. Carr has failed to show that Rigdon’s

       strategic decision was unreasonable. Carr has therefore failed to prove that

       Rigdon’s performance was deficient or fell below an objective standard of

       reasonableness.


        VIII. Ineffective Assistance of Post-Conviction Counsel
[35]   With regards to claims of ineffective assistance of post-conviction counsel, the

       Indiana Supreme Court has held as follows:


               The right to counsel in post-conviction proceedings is guaranteed
               by neither the Sixth Amendment of the United States
               Constitution nor art. 1, § 13 of the Constitution of Indiana. A
               petition for post-conviction relief is not generally regarded as a
               criminal proceeding and does not call for a public trial within the
               meaning of these constitutional provisions. Carman v. State

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 25 of 27
               (1935), 208 Ind. 297, 196 N.E. 78. It thus is not required that the
               constitutional standards be employed when judging the
               performance of counsel when prosecuting a post-conviction
               petition at the trial level or at the appellate level.

               We therefore apply a lesser standard responsive more to the due
               course of law or due process of law principles which are at the
               heart of the civil post-conviction remedy. We adopt the standard
               that if counsel in fact appeared and represented the petitioner in a
               procedurally fair setting which resulted in a judgment of the
               court, it is not necessary to judge his performance by the rigorous
               standard set forth in [Strickland].


       Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989).


[36]   Carr was represented by counsel during the evidentiary hearing. He claims that

       his post-conviction counsel provided ineffective assistance by failing “to enter a

       contemporaneous objection to the practice” of the prosecutor continuing in his

       role as the prosecutor after Carr called him as a witness during the evidentiary

       hearing. Carr, however, does not allege abandonment or that he was denied a

       procedurally fair setting. As such, Carr has failed to establish that his post-

       conviction counsel provided ineffective assistance.



                                               Conclusion
[37]   In sum, we conclude that the post-conviction court did not err in denying Carr’s

       PCR petition.


[38]   The judgment of the post-conviction court is affirmed.



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 26 of 27
Najam, J., and Mathias, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-2831 | July 31, 2020   Page 27 of 27
