Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                              Oct 15 2013, 9:23 am
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:

WILLIAM BEELER                                     GREGORY F. ZOELLER
Pendleton, Indiana                                 Attorney General of Indiana

                                                   KARL N. SCHARNBERG
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

WILLIAM BEELER,                                    )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 49A05-1209-PC-480
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Sheila A. Carlisle, Judge
                            Cause No. 49G03-0606-PC-114856


                                        October 15, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
        William Beeler appeals the denial of his petition for post-conviction relief (PCR). He

presents multiple issues for our review, which we consolidate1 and restate as:

        1.       Whether Beeler’s trial counsel was ineffective because counsel did not:

                 a.       Challenge two jurors;

                 b.       Move to suppress a burgundy lawn chair found at Beeler’s home;

                 c.       Object to Shannon Pratt Parsley’s testimony regarding Beeler’s

                          appearance on a particular day; and

                 d.       Object to statements the prosecutor made during closing argument; and

        2.       Whether Beeler’s appellate counsel was ineffective because counsel did not:

                 a.       Challenge Beeler’s sentence based on Ind. Code § 35-50-1-2; and

                 b.       Challenge the sentencing court’s alleged failure to give proper weight

                          to a mitigating circumstance.

We affirm.




1
  Indiana Appellate Rule 46(A)(8)(a) requires that an argument on appeal “contain the contentions of the
appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by
citations to authorities, statutes, the Appendix or parts of the Record of Appeal relied on[.]” Beeler failed to
follow App. R. 46(A)(8)(a) with regard to three of the issues he presents on appeal, specifically: (1) whether
the post-conviction court abused its discretion when it denied Beeler’s request to issue subpoenas for four trial
witnesses; (2) whether the post-conviction court erred when it denied Beeler’s request for a printed transcript
from his PCR evidentiary hearing for use during the preparation of his Proposed Findings of Fact and
Conclusions of Law; and (3) whether Beeler’s trial counsel was ineffective for failing to move to suppress a
photo array. Accordingly, those issues are waived from our consideration. See Matheney v. State, 688 N.E.2d
883, 907 (Ind. 1997) (failure to make a cogent argument supported by citation to authority results in waiver of
issue on appeal).
                                                       2
                      FACTS AND PROCEDURAL HISTORY

      The facts surrounding Beeler’s convictions, as iterated in his direct appeal, are as

follows:

              Days before the robbery, bank customer Warren Mann saw a black male
      sitting in a black Ford Taurus. The Taurus was parked where employees
      typically parked and had been backed into the parking space, so that the car
      faced the bank. Suspicious, Mann wrote down the numbers of the license
      plate, but omitted one letter.
              At 8:00 a.m. on June 16, 2006, bank employees Christopher Ferguson
      and Liza Burge opened the bank for business. A customer, Max Martens,
      immediately entered. At approximately 8:02 a.m., Beeler entered and pointed
      a handgun at Burge. At Beeler’s direction, Ferguson closed the blinds in the
      drive-through area. Ferguson used duct tape to bind Burge’s and Martens’
      arms behind them and to cover their mouths. Bound, Burge and Martens sat in
      a small copy room. Beeler forced Ferguson to the tellers’ drawers and
      instructed him to place the cash into a burgundy bag with a black strap. Long
      and cylindrical, the bag appeared to be the sort designed to carry a fold-up
      camping chair. Ferguson complied.
              As Beeler and Ferguson then approached the vault, they heard the front
      door open. Claudine Polley and her eight-year-old son entered. Ferguson
      approached them and told them to follow Beeler’s instructions. Beeler took
      Polley’s purse and her son’s GameBoy, and instructed them to sit down outside
      the copy room. They did so. By this time, there were six people in the bank:
      Beeler and the five people alleged to have been confined. Beeler and Ferguson
      then emptied the vault. Although Beeler repeatedly instructed Ferguson not to
      look at him, Ferguson did so several times. Beeler left the bank with more
      than $210,000 in cash. He exited and greeted Sandra Whitaker as she entered
      the bank. Ferguson contacted authorities.
              At 9:00 a.m., Mann, the customer who days before had written down
      the partial license plate number, returned to the bank to find the investigation
      in progress. Days later, Mann reported his observations and the license plate
      information to Lawrence Police Officer Gary Woodruff. Officer Woodruff
      searched all twenty-six possible license plate combinations and found one
      black Ford; it was registered to Beeler, a black male. Over approximately the
      same period, Beeler purchased a car ($5512), used two money orders to pay
      rent that had been due at the beginning of the month ($1060), and used cash to
      purchase a mattress ($954) and other furniture ($1558). Police searched
                                              3
       Beeler’s new car and his apartment, and found $1200 in cash and a burgundy
       lawn chair.

Beeler v. State, 49A05-0708-CR-467 (Ind. Ct. App., May 14, 2008), trans. denied.

       Beeler was convicted of robbery and five counts of criminal confinement, and he was

determined to be an habitual offender. He appealed his convictions and sentence, and we

affirmed.

       On February 11, 2009, Beeler, pro se, filed a petition for PCR alleging ineffective

assistance of trial and appellate counsel. The court appointed counsel for him on March 4,

but counsel withdrew on October 19. On January 19, 2011, Beeler, pro se, filed an amended

petition for PCR. The post-conviction court held an evidentiary hearing. After the parties

filed proposed findings of fact and conclusions of law, the post-conviction court denied

Beeler’s petition.

                             DISCUSSION AND DECISION

       We first note Beeler proceeds in this appeal pro se. A litigant who proceeds pro se is

held to the rules of procedure that trained counsel is bound to follow. Smith v. Donahue, 907

N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert. dismissed. One risk a litigant takes

when he proceeds pro se is that he will not know how to accomplish all the things an attorney

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

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

the orderly and proper conduct of his appeal. Foley v. Mannor, 844 N.E.2d 494, 502 (Ind.

Ct. App. 2006).


                                              4
       Post-conviction proceedings provide defendants with the opportunity to raise issues

that were not available on direct appeal or were not known at the time of the trial. State v.

Hernandez, 910 N.E.2d 213, 216 (Ind. 2009). Claims available, but not presented, on direct

appeal are not available for post-conviction review. Id. Thus, not all issues are available in a

post-conviction proceeding; challenges to convictions must be based on grounds enumerated

in the post-conviction rules. Id.; Post Conviction Rule 1(1). A petitioner for PCR cannot

avoid application of the waiver doctrine by asserting fundamental error. Id. Rather,

complaints that something went awry at trial are generally cognizable only when they

demonstrate deprivation of the right to effective counsel or were demonstrably unavailable at

the time of trial or direct appeal. Id.

       1.     Ineffective Assistance of Trial Counsel

       A successful claim of ineffective assistance of trial counsel must satisfy two

components. First, the defendant must show deficient performance - representation that fell

below an objective standard of reasonableness involving errors so serious that the defendant

did not have the counsel guaranteed by the Sixth Amendment. McCary v. State, 761 N.E.2d

389, 392 (Ind. 2002), reh’g denied. Second, the defendant must show prejudice - 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.

       Beeler argues his trial counsel, Marla Thomas, was ineffective for:

       Not challenging for cause two bias[ed] jurors [Susan Jodka and Nicole
       Groeschen] during voir dire, and by not attempting to suppress or object to an
       illegally obtained chair, and a suggestive Photo Array from being entered into
       evidence. Also Ms. Thomas allowed a State witness to give unchallenged
                                               5
        opinion testimony that was highly prejudicial and went beyond the limine [sic]
        agreement. Ms. Thomas did not enter into evidence various statements made,
        and point out inconsistencies of State witnesses that would have lead [sic] to a
        successful impeachment of their identification testimony. The [PCR] Court
        should have found error in Ms. Thomas allowing the State to incorrectly
        represent the time of viewing of the robber by a State witness, and the income
        of a Defense witness who made a personal loan to the Defendant in the State’s
        closing. These cumulative errors and deficiencies clearly show that Ms.
        Thomas was ineffective in her representation of the Defendant.

(Br. of Appellant at 6.) We cannot hold trial counsel was ineffective.

                 a.      Juror Challenges

        Regarding Thomas’ decision not to challenge two jurors, the PCR court found:2

                Ms. Thomas does not recall a juror named Susan Jodka; she does recall
        one of the jurors saying that her son know [sic] deputy prosecutor
        Massillamany and is positive that she did question the juror about that.
        Regarding that juror, Ms. Thomas added: [sic] that the court had already
        determined that her answers were that she could be fair and impartial, that
        there had not been contact between the juror and deputy prosecutor for a
        decade, and that the juror’s husband was a defense attorney therefore Ms.
        Thomas thought that she would be a good juror.
                Ms. Thomas does not recall Nicole Groeschen or her saying that she
        could not be impartial if the victim was a child.3 Ms. Thomas did not believe it
        was important to question her regarding a burglary in which she was a victim
        and noted that being a victim of crime is not automatic grounds to challenge
        for cause. Ms. Thomas added that a lot of times the information that is written
        on the juror’s questionnaires will influence the questions that she decides to
        ask or not to ask.
                Ms. Thomas does not recall Beeler saying that he did not want either of
        these women as jurors. Ms. Thomas knows that she would have had
        discussions with Beeler during jury selection and that she always asks her
        clients to let her know if they have a bad feeling about someone, but she does

2
 We commend the PCR court on its extensive and well-detailed findings and conclusions. The thoroughness
of the court’s order facilitated our review of this complex matter.

3
 Beeler then read a portion of the jury transcript which reflected that Ms. Thomas did let the juror know that
one of the alleged victims in the case was a 9-year-old boy and the juror responded that she believed she could
be fair. The transcript of voir dire is not otherwise before this court, as Beeler did not offer it as evidence.

                                                       6
       not have any recollection about specific conversation regarding specific jurors
       in this case because four years have passed since the jury. Ms. Thomas
       testified that she would have considered any concerns that Beeler had
       conveyed to her during jury selection. Ms. Thomas also testified that is [sic]
       she believed that there were grounds to challenge any juror for cause, then she
       would have moved to strike them for cause.

(App. at 71-72) (footnote in original). Based on those findings, the PCR court concluded:

               Trial counsel’s post-conviction testimony established that she would
       have made a challenge for cause of any potential juror that she believed
       warranted such a challenge. Regarding her questioning of these jurors to
       explore possible bias, it is clear from Ms. Thomas’s post-conviction testimony
       that she did ask such questions, that the prospective jurors responded that they
       could be fair, that Ms. Thomas considered all factors including information on
       jury questionnaire in determining who would be the most favorable jurors for
       her client, and that she also considered input from Beeler in making these
       decisions. See Findings and [sic] Fact, paragraph 12, supra. Petitioner has not
       shown otherwise and has failed to meet his burden of proving deficient
       performance here.
               Further, Petitioner chose not to submit a transcript of the voir dire
       proceedings. From the portions of voir dire that Beeler read in questioning
       trial counsel during the post-conviction relief hearing, there was no indication
       that the outcome of the trial could have been more favorable to Petitioner had
       trial counsel asked additional questions or handled voir dire differently. There
       is no evidence of prejudice in his claim.

(Id. at 78.)

       On appeal, Beeler includes in his argument quotations from the voir dire transcript.

As the voir dire transcript was not in evidence before the PCR court, we are unable to

consider it. See Bernel v. Bernel, 930 N.E.2d 673, 676 n. 2 (Ind. Ct. App. 2010) (“A trial

court can decide the issues based only upon that evidence which is properly before the court

and in the record, and we are bound by that record on appeal.”), trans. denied.




                                              7
              b.     Suppression of Burgundy Chair

       To show ineffective assistance based on counsel’s failure to object, a petitioner must

demonstrate the trial court would have sustained the objection. Glotzbach v. State, 783

N.E.2d 1221, 1224 (Ind. Ct. App. 2003). The petitioner must also establish prejudice.

Timberlake v. State, 690 N.E.2d 243, 259 (Ind. 1997), reh’g denied.

       Beeler claimed Thomas should have objected or moved to suppress a burgundy chair

found in Beeler’s home. The PCR court found:

               Regarding the burgundy lawn chair, Ms. Thomas does not necessarily
       agree that law enforcement must get an additional search warrant to seize
       items beyond those listed in the probable cause warrant and believes that it
       depends on the circumstances. Ms. Thomas believes that the only evidence at
       trial regarding the chair coming in a bag was testimony that it was the kind of
       chair that typically comes in a bag. She does not recall specifically but believe
       [sic] that the State’s justification for seizing the chair was something that
       would have come from the long, thin dark-colored duffle bag as depicted in the
       video. Ms. Thomas testified that she did not move to suppress the lawn chair
       because they would still have been able to testify about seeing it when they
       entered to serve the warrant. She explained that anytime the police are in a
       place where they have a lawful right to be, they can testify about what they
       saw.

(App. at 72.) Based on those findings, the PCR court concluded Thomas was not ineffective

because, had she filed a motion to suppress or made an objection to the admission of the

burgundy chair, that motion or objection would have been denied based on long-standing

case law. (Id. at 79.) We agree.

       In Bigler v. State, our Indiana Supreme Court held that when officers are executing a

legally obtained search warrant, they are

       authorized to seize other items of property not listed in the search warrant if
       they . . . are properly in a position from which could view a particular area,
                                                8
       they discover incriminating evidence inadvertently and it is immediately
       apparent to them the items they observe may be evidence of a crime,
       contraband or otherwise subject to seizure.

540 N.E.2d 32, 34 (Ind. 1989). In Pavey v. State, we held police could seize a black leather

jacket discovered in plain view during the execution of a legally-obtained search warrant

even though the jacket was not on the list of items to be seized, because witnesses indicated

the person who committed the crime was wearing dark clothing. 764 N.E.2d 692, 702-03

(Ind. Ct. App. 2002), trans. denied. Based on Bigler and Pavey, we cannot say the post-

conviction court erred in concluding a motion to suppress or objection would not have been

granted, and therefore Beeler has not demonstrated Thomas was ineffective. See Glotzbach,

783 N.E.2d at 1224 (PCR petitioner must demonstrate trial court would have sustained

objection).

              c.     Objection to Parsley’s Testimony

       The trial court granted a motion in limine prohibiting Shannon Pratt Parsley, the

person to whom Beeler paid his rent, from “giving her opinion that Beeler was the robber

depicted in photos from the bank surveillance video.” (App. at 83.) During trial, Parsley

testified regarding what Beeler was wearing when he delivered his rent payment to her two

days after the robbery. Beeler argues Thomas should have objected to Parsley’s testimony

because it violated the motion in limine and was impermissible opinion testimony. We

disagree.

       Thomas told the PCR court “she [did] not believe that [Parsley’s] testimony went

beyond the scope of the motion in limine.” (Id. at 73.) Based on that statement, the PCR

                                             9
court concluded Thomas was not ineffective because an objection would not have been

successful.

       The PCR court was correct. Parsley’s testimony addressed her impression of Beeler

on the day he delivered his rent to her, not her reaction upon viewing the bank surveillance

video. Her testimony was permissible under Ind. Evid. Rule 602 (witness may testify only

about something of which he has personal knowledge), and did not violate the motion in

limine. Had Thomas made an objection, it would not have been sustained. Thus, Beeler has

not demonstrated Thomas was ineffective for failing to object to Parsley’s testimony.

              d.     Objections to Closing Arguments

       Beeler argues Thomas should have objected twice during the State’s closing

argument. The PCR court found:

              Regarding the witness who testified that he loaned ten thousand dollars
       to [Beeler], Ms. Thomas does recall the witness but not the specifics. If the
       State misstated facts about that witness’s gross income in closing argument,
       Ms. Thomas testified that she would not have objected to something like that
       because the jury would pick up on it and it would hurt the State, not help them
       [sic]. Ms. Thomas testified that argument is [an] interpretation of the facts,
       and that she gets to do that as well as the State. She also testified that
       objecting to a minor point in the State’s closing argument could end up
       drawing more attention to it.
              Regarding the State pausing for thirty second [sic] in their [sic] closing
       argument, Ms. Thomas testified that is a good thing because that is less time
       that they [sic] have to speak to the jury. She does not remember the details
       regarding what the State said about Liza [sic] Burge’s testimony in its closing
       argument. If the State did say that Ms. Burge observed the robber for two to
       three minutes, Ms. Thomas explained that such a statement was not
       objectionable because the witness did testify to that initially. Ms. Thomas
       believes that she was able to show on her cross-examination of Ms. Burge that
       she had considerably less time than that to observe the robber, but that to
       object to this in closing argument would have just made her and the defendant
       look bad because the judge would never have sustained the objection and
                                              10
       would have said that was part of her testimony.

(App. at 74.) Based on that finding, the PCR court concluded Beeler had not demonstrated

any objection would have been sustained, that Thomas’ decisions not to object were strategic,

and Beeler was not prejudiced. We agree.

       Beeler’s argument on appeal seems to focus on what he perceives as misstatements of

the evidence presented at trial. The statements to which he takes issue are not misstatements

at all. Regarding the witness’ income, the PCR court noted:

       Beeler argues in his proposed findings and conclusions that trial counsel
       should have objected to the State’s reference in closing argument to Steve
       Hutchinson’s net income as $40,000 when Mr. Hutchinson testified at trial that
       his income was $190,000 and his business income was $40,000. It is
       Petitioner who misstates the evidence here. See [Trial Transcript] 621
       (Hutchinson testified that the 2005/2006 for Hutchison [sic] Trucking was
       $190,000 “minus deductions, expenses, and things of that nature.”); T.R. 623
       (Hutchison [sic] testified that after taxes his ordinary business income for 2006
       was $40,459).

(Id. at 86) (footnote omitted). The PCR court also noted Burge testified she saw the robber

for two to three minutes, as indicated in the State’s closing argument. Finally, even if there

were misstatements and Thomas should have objected, Beeler offered no evidence, nor does

he argue on appeal, that he was prejudiced by Thomas’ performance. Therefore, he has not

demonstrated Thomas was ineffective for failing to object to the statements in closing

argument.

       2.     Ineffective Assistance of Appellate Counsel

       Claims of ineffective assistance of appellate counsel are reviewed using the same

standard as claims of ineffective assistance of trial counsel. Taylor v. State, 717 N.E.2d 90,

                                              11
94 (Ind. 1999). These claims generally fall into three categories: (1) denying access to

appeal; (2) waiver of issues; and (3) failure to present issues well. Bieghler, 690 N.E.2d at

193-95. Relief is appropriate only when we are confident we would have ruled differently.

Id. at 196. Beeler argues counsel was ineffective for failing to raise on appeal the trial

court’s alleged misinterpretation of Ind. Code § 35-50-1-2 and the trial court’s failure to give

weight to Beeler’s proffered mitigating circumstances.

                a.      Ind. Code § 35-50-1-2

        The trial court sentenced Beeler to twenty years for Class B felony robbery, to be

served consecutive to the thirty-year aggregate sentence4 for the five counts of criminal

confinement.5 Beeler argues appellate counsel should have argued his sentences for criminal

confinement could not be served consecutively because criminal confinement is not a “crime

of violence” as defined by Ind. Code § 35-50-1-2(a).

        Pursuant to Ind. Code § 35-50-1-2:

        [E]xcept for crimes of violence, the total of the consecutive terms of
        imprisonment . . . to which the defendant is sentenced for felony convictions
        arising out of an episode of criminal conduct shall not exceed the advisory
        sentence for a felony which is one (1) class of felony higher than the most
        serious of the felonies for which the person has been convicted.

Beeler was convicted of five counts of Class B felony criminal confinement. The advisory


4
  The trial court sentenced Beeler to fifteen years for each of the criminal confinement convictions. His
criminal confinement convictions were numbered II – V. Counts II and III were to be served concurrently with
each other and consecutive to Counts VI and V, which were to be served concurrently with each other, for a
total of thirty years.

5
 Beeler’s aggregate sentence was seventy years, based on forty years imposed for robbery and thirty years
imposed for criminal confinement.

                                                    12
sentence for a Class A felony is thirty years. Beeler’s aggregate sentence for the five counts

of Class B felony criminal confinement was thirty years, and thus an argument challenging

the consecutive sentences would not have prevailed. Appellate counsel was not ineffective

for failing to present the issue on appeal.

              b.      Failure to Give Mitigating Circumstances Weight

       Beeler also contends appellate counsel should have argued the trial court “assigned

too much weight to the 1985 Robbery conviction of the Defendant, because the length of

time between like crimes was beyond ten years the robbery should have received low

weight.” (Br. of Appellant at 18) (citations omitted). In 2007, our Indiana Supreme Court

held in Anglemyer v. State: “Because the trial court no longer has any obligation to ‘weigh’

aggravating and mitigating factors against each other when imposing a sentence, unlike the

pre-Blakely statutory regime, a trial court can not now be said to have abused its discretion in

failing to ‘properly weigh’ such factors.” 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g

875 N.E.2d 218 (Ind. 2007). Thus, in 2008, when Beeler brought his direct appeal, any

argument regarding the weighing of aggravators or mitigators would have failed. Appellate

counsel was not ineffective for failing to present that issue on appeal.

                                      CONCLUSION

       Beeler did not demonstrate trial counsel was ineffective for failing to file a motion to

suppress or to object to the admission of a burgundy lawn chair because he did not show such

a motion or objection would have been sustained. Nor was trial counsel was ineffective for

failing to object to Parsley’s testimony, as Beeler did not show the objection would have been

                                              13
sustained. Beeler was not prejudiced when trial counsel did not object to two statements

made during the State’s closing argument. Finally, Beeler did not show appellate counsel

was ineffective because both sentencing arguments now asserted by Beeler would have been

meritless. Accordingly, we affirm the denial of post-conviction relief.

       Affirmed.

BAKER, J., and MATHIAS, J., concur.




                                            14
