Pursuant to Ind.Appellate Rule 65(D),

                                                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                                Jul 24 2012, 8:37 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                              CLERK
                                                                        of the supreme court,
                                                                        court of appeals and
                                                                               tax court




ATTORNEYS FOR APPELLANT:                                    ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                                            GREGORY F. ZOELLER
Public Defender of Indiana                                  Attorney General of Indiana

THOMAS C. HINESLEY                                          KELLY A. MIKLOS
Deputy Public Defender                                      Deputy Attorney General
Indianapolis, Indiana                                       Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

LATINE DAVIDSON,                                    )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )      No. 10A04-1112-PC-695
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )


                        APPEAL FROM THE CLARK CIRCUIT COURT
                            The Honorable Daniel E. Moore, Judge
                               Cause No. 10C01-0401-PC-001


                                           July 24, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                              Case Summary

        Latine Davidson (“Davidson”) appeals the denial of her petition for post-conviction

relief, which challenged her 120-year sentence for two counts of Murder, imposed by the trial

court after the State failed to secure the death penalty.1 We affirm.

                                                    Issues

        Davidson presents four issues for review. We address the two issues which are not

waived, res judicata, or procedurally defaulted:2



1
 Davidson does not contend that she was erroneously convicted of Murder; rather, she seeks revision of her
sentence.
2
 Post-conviction procedures do not afford petitioners with a “super-appeal”; rather, the post-conviction rules
contemplate a narrow remedy for subsequent collateral challenges to convictions. Reed v. State, 856 N.E.2d
1189, 1194 (Ind. 2006). The purpose of a petition for post-conviction relief is to provide petitioners the
opportunity to raise issues not known or available at the time of the original trial or direct appeal. Stephenson
v. State, 864 N.E.2d 1022, 1028 (Ind. 2007). If an issue was known and available but not raised on direct
appeal, the issue is procedurally foreclosed. Id. If an issue was raised and decided on direct appeal, it is res
judicata. Id. Moreover, collateral challenges to convictions must be based upon grounds enumerated in the
post-conviction rule. Shanabarger v. State, 846 N.E.2d 702, 707 (Ind. Ct. App. 2006), trans. denied; see also
Post-Conviction Rule 1(1).
         Davidson seeks to have her sentence reviewed for “inappropriateness” pursuant to Indiana Appellate
Rule 7(B), asserting that, because the law has changed, the issue was unavailable to her on direct appeal. Since
Davidson’s appeal was perfected, the standard by which appellate courts review sentences has changed from
“manifestly unreasonable” to “inappropriateness.” Ind. Appellate Rule 7(B) (effective January 1, 2003).
Nonetheless, the issue of the propriety of her sentence was known to Davidson at the time of her direct appeal
and was in fact pursued. The Indiana Supreme Court declined to revise Davidson’s sentence, concluding
“[w]e find no reversible error in appellant’s sentencing.” Davidson v. State, 558 N.E.2d 1077, 1092 (Ind.
1990). She is not entitled to present, in post-conviction proceedings, a free-standing allegation that she was
improperly sentenced.
         Davidson also articulates an issue concerning the denial of pre-sentencing motions for a continuance to
prepare mitigating evidence and for an additional psychological evaluation. This was likewise an issue
available to her on direct appeal. Indeed, the Court addressed the denial of Davidson’s “Motion for
Continuance and Psychological Evaluation” and found an absence of prejudice: “We find it hard to imagine
that appellant held back, at the death penalty phase before the jury, any possible evidence in mitigation which
might be used subsequently to reduce a term of years. Moreover, appellant fails to specify what evidence she
might have introduced had her continuance been granted. Absent a showing of prejudice, we find no abuse of
the trial court’s discretion in denying the instant motion for continuance.” Id. at 1091. Again, the free-
standing allegation of error is not available to Davidson in post-conviction proceedings.


                                                       2
I.     Whether she was denied the effective assistance of trial counsel at
       sentencing; and

II.    Whether she was denied the effective assistance of appellate counsel in
       presenting a challenge to her sentence.

                        Facts and Procedural History

On direct appeal, the Indiana Supreme Court recited the relevant facts as follows:

In the early morning hours of July 23, 1983, police were called to appellant’s
address regarding a possible infant drowning. Appellant’s daughter, Shaccara,
was transported to the hospital, but resuscitation measures failed to revive her.
 Appellant calmly explained that Shaccara had been suffering convulsions in
the night, that she had put her in the bathtub to reduce her fever, and that after
heating a bottle in the kitchen, she returned to the bath to find the baby face
down and limp in the water.

Dr. Frances Masser, the pathologist who performed the autopsy on Shaccara,
testified the baby’s death was consistent with fresh-water drowning. She
stated that a 14-month-old child would hold her head above water unless she
were rendered unconscious, which would require some form of injury or
disease leaving signs apparent during an autopsy, and that no such signs were
found. Dr. Masser also testified that an adult easily could drown a 14-month-
old child simply by holding her head under five to six inches of water.

On June 20, 1983, appellant had applied for AFDC welfare payments, and on
July 5, 1983, she was denied payments. On July 7, appellant was informed that
a policy on Shaccara’s life, previously maintained by her deceased mother,
would lapse unless she took over paying the premiums. Appellant was then
beneficiary of the policy. She agreed to do so, obtained some cash from a
person then present and paid the premium. In December of 1983, appellant
received $5000 in benefits from the life insurance policy on Shaccara.

In October of 1983, appellant gave birth to a son she named Rodrigues
Sanchez Escabar Felicciones, and two weeks later they moved to Louisville to
live with one Darrell Cook. Two months later she moved in with her aunt,
Dodie Benedict, in New Albany, but left 2-month-old Rod with Juan Davidson
at the latter’s mother’s home in Jeffersonville, where appellant herself moved
in May of 1984.



                                        3
In June of 1984, appellant, Rod, and Juan moved in with Linda Jones and her
husband in New Albany. At this time, appellant was six months pregnant, and
while living with the Joneses she married Juan Davidson. Linda Jones testified
that while the Davidsons lived in her home, appellant took care of Juan while
Juan took care of Rod; that appellant wished aloud that Rod were not around
because Juan spent more time with Rod than with her; and that appellant
disciplined Rod by holding him upside-down in the bathroom and smacking
his bottom with the sole of a wet shoe.

Also while living with the Joneses, appellant took out a life insurance policy
on Rod worth $3000; this coverage lapsed after two months due to
nonpayment. The selling agent testified that appellant had been disappointed
at her inability to purchase vastly greater coverage on Rod’s life.

In October of 1984, appellant gave birth to another son, who she named
Mersherjuan Olean Davidson. Appellant and her husband, Juan, both were
unemployed at this time, and after a partial denial of A.F.D.C. benefits, they
moved back into the home of Juan’s mother, Lola Davidson, about one month
after Mersherjuan’s birth. Appellant made it apparent that she disliked this
arrangement and tolerated it only because she was unable to afford a home of
her own.

On January 3, 1985, appellant contacted an agent for the National Life &
Accident Insurance Company and applied for a policy on Rod to become
effective that same day. For a monthly premium of $18.47, she purchased a
policy having a face value of $20,000 with an accidental death (double
indemnity) rider. The selling agent testified that at the time of writing Rod’s
policy, he was unaware of his company’s regulation imposing a $10,000
ceiling on policies written to insure the lives of children whose parents receive
A.F.D.C. benefits.

On the following day, Juan found 14-month-old Rod dead in the bathtub. Rod
was taken by ambulance to the Clark County Hospital, where the emergency
room physician attempted resuscitation but pronounced him dead thirty-five
minutes after arrival. The doctor testified he found Rod’s mouth and lungs full
of frothy water but could find no signs of any bruising, swelling, lacerations or
abrasions. He also testified that there was no reason why a 14-month-old child
could not right himself after falling into six inches of water unless he were to
be rendered unconscious, which would leave some sign of the trauma causing
the loss of consciousness.



                                       4
      On the day of Rod’s demise, appellant had awakened around eleven a.m. and
      then had run a bath for herself and Rod. She next took Rod downstairs, fed
      him, and watched soap operas with her mother-in-law Lola and a neighbor,
      Betty Johnson, until around one p.m. when appellant remarked she was going
      to put Rod down for his nap with her husband Juan, who was still in bed.

      After taking Rod upstairs, appellant left the house to buy a bag of beans,
      ostensibly because there was no food in the home. After returning from the
      store, she complained of cramps and back pain and went to lie down in Lola’s
      downstairs bedroom. She then arose and obtained Betty Johnson’s permission
      to go to the latter’s apartment down the hallway to use her telephone. After
      appellant left, Juan got up and discovered Rod lying in the water in the
      bathtub.

      Various witnesses testified to appellant’s unemotional demeanor subsequent to
      the discovery of Rod’s drowning. When Juan’s brother, James, started that
      evening to cook the beans appellant had purchased at the store, she told him
      not to cook the beans because she needed them for evidence. Appellant
      closely tracked news coverage of Rod’s death and corrected out loud one
      article which reported Rod had been found with his arms extended from his
      sides; she stated his arms had lain next to his sides, and then added that Juan
      had told her this fact.

      Betty Johnson’s daughter, Regina, testified appellant had told her that she was
      assured of collecting Rod’s life insurance proceeds because his death would be
      resolved either as accidental or as the result of Lola’s child neglect. Appellant
      also told Regina of her plans to buy a car, take a honeymoon trip with Juan,
      and move into a house of their own.

      Instead, however, the police investigation led to a coroner’s inquest, a grand
      jury investigation, and a Child In Need of Services (CHINS) proceeding
      concerning appellant’s remaining child, Mersherjuan. After consulting with
      her attorney, appellant made an agreement with the prosecutor to undergo a
      polygraph examination into the circumstances of the deaths of Shaccara and
      Rodrigues, stipulating the results would be admissible in any subsequent trial.
      The polygraph examiner concluded appellant was not telling the truth about
      her children’s deaths. Consequently, she was charged with the murders of her
      two children, which charges were joined for trial and culminated in the instant
      convictions.

Davidson v. State, 558 N.E.2d 1077, 1081-1082 (Ind. 1990).


                                             5
       In her direct belated appeal, Davidson challenged her conviction and her 120-year

aggregate sentence (having received two consecutive sixty-year sentences). The Indiana

Supreme Court addressed issues concerning severance of the charges, pre-trial and pre-

sentencing motions for experts, denial of pretrial transcripts, admission of polygraph, grand

jury and CHINS evidence, spousal privilege, effectiveness of pretrial counsel, alleged

conflict of interest of pretrial attorney, voluntariness of a pre-trial statement, denial of a

motion for mistrial, admission of other crimes evidence, admission of documentary evidence,

admission of evidence of financial motive and paternity, and sentencing error. See id. at

1082-92. The conviction and sentence were affirmed. Id. at 1092.

       On January 2, 2004, Davidson filed a pro-se petition for post-conviction relief. With

assistance from the State Public Defender, the petition was amended on January 21, 2011.

The post-conviction court conducted hearings on August 15 and 17, 2011. On November 16,

2011, the post-conviction court entered its Findings of Fact, Conclusions of Law, and order

denying Davison post-conviction relief. She now appeals.

                                 Discussion and Decision

                           Post-Conviction Standard of Review

       The petitioner in a post-conviction proceeding bears the burden of establishing the

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

Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing from the denial of post-

conviction relief, the petitioner stands in the position of one appealing from a negative

judgment. Id. On review, we will not reverse the judgment of the post-conviction court


                                              6
unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite

that reached by the post-conviction court. Id. A post-conviction court’s findings and

judgment will be reversed only upon a showing of clear error, that which leaves us with a

definite and firm conviction that a mistake has been made. Id. In this review, findings of

fact are accepted unless they are clearly erroneous and no deference is accorded to

conclusions of law. Id. The post-conviction court is the sole judge of the weight of the

evidence and the credibility of witnesses. Id.

                               I. Effectiveness of Trial Counsel

                                     Standard of Review

       To establish a post-conviction claim alleging a violation of the Sixth Amendment right

to effective assistance of counsel, a defendant must establish the two components set forth in

Strickland v. Washington, 466 U.S. 668 (1984). “First, a defendant must show that counsel’s

performance was deficient.”        Id. at 687.     This requires a showing that counsel’s

representation fell below an objective standard of reasonableness and that “counsel made

errors so serious that counsel was not functioning as ‘counsel’ guaranteed to the defendant by

the Sixth Amendment.” Id. “Second, a defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s errors were so serious as to

deprive the defendant of a fair trial,” that is, a trial where the result is reliable. Id. To

establish prejudice, a “defendant must show that there is a reasonable probability that, but for

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

at 694. A reasonable probability is one that is sufficient to undermine confidence in the


                                               7
outcome. Id. Further, we “strongly presume” that counsel provided adequate assistance and

exercised reasonable professional judgment in all significant decisions. McCary v. State, 761

N.E.2d 389, 392 (Ind. 2002).

          Counsel is to be afforded considerable discretion in the choice of strategy and tactics.

Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001). Counsel’s conduct is assessed based

upon the facts known at the time and not through hindsight. State v. Moore, 678 N.E.2d

1258, 1261 (Ind. 1997). We do not “second-guess” strategic decisions requiring reasonable

professional judgment even if the strategy in hindsight did not serve the defendant’s interests.

    Id. In sum, 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 the objective

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

                                                 Analysis

          Pursuant to Indiana Code Section 35-50-2-9(b)(8), the State asserted that Davidson

had committed multiple murders and should be executed. Her defense team presented

several mitigation witnesses, including a psychologist who had volunteered his services and

had examined Davidson and administered intelligence testing. At trial and at sentencing,

testimony was elicited regarding Davidson’s limited intellectual functioning,3 youthfulness,

lack of criminal history, good conduct while incarcerated, domestic violence perpetrated

upon her by her husband, and her abusive and chaotic upbringing. After deliberation, the


3
 She was believed to have an intelligence quotient of 82 to 86, consistent with borderline normal intellectual
functioning.


                                                      8
jury reported that it was deadlocked and unable to make a recommendation as to the death

penalty; the trial court was then obliged to consider the death penalty or a term of years

without jury recommendation.4

          On November 12, 1986, the trial court set a sentencing date of December 2, 1986.

Davidson filed a “Motion for Continuance and Psychological Evaluation” to prepare

mitigating evidence regarding a potential death sentence. Davidson, 558 N.E.2d at 1091.

The day prior to trial, the State filed a nine-page sentencing recommendation based upon

factors enumerated in the felony sentencing statute5 as opposed to the death penalty statute.

Davidson’s counsel renewed the motion for a continuance and evaluation, based in part upon

a need to respond to the State’s recommendation. See id. The motion was denied; however,

the State withdrew the portion of its recommendation dealing with the felony sentencing

considerations and Davidson’s counsel moved to incorporate the evidence presented before

the jury at the penalty phase, which motion was granted. See id. The trial court rejected the

death penalty.

          Accordingly, Davidson received such vigorous representation that, despite her death-

penalty eligibility, she instead received a term of years. However, she received a maximum

sentence of sixty years for each murder, to be served consecutively.6 On appeal, Davidson

contends that counsel was ineffective for “failing to prepare, present, and argue Davidson’s

4
    Ind. Code § 35-50-2-9(f) (1985).
5
    Ind. Code § 35-38-1-7 [repealed].
6
 At that time, Indiana Code Section 35-50-2-3 provided for a fixed term of forty years, with no more than
twenty years added for aggravating circumstances or no more than ten years subtracted for mitigating factors.


                                                     9
many mitigating factors at the sentencing hearing.” Appellant’s Brief at 21.

         Although she finds fault with her trial counsel for failure to present additional

mitigating evidence, Davidson has not developed an evidentiary record, in post-conviction

proceedings, of additional mitigating evidence. She baldly asserts that additional mitigating

evidence could have been proffered, without identifying the evidence that existed but was

unknown by the trial court who presided over the trial and the sentencing hearing before the

jury.7

         The trial record reveals that at least one of Davidson’s attorneys suspected that

additional mitigating evidence of psychosis might be uncovered. According to the final

motion for a psychological evaluation at public expense, counsel believed that Davidson

suffered from a multiple personality disorder. However, this did not prove to be the case

when Davidson was subsequently evaluated in 2011. The examining psychiatrist, Dr. Phillip

Coons, concluded that Davidson did not suffer from multiple personality disorder or any

psychosis. In his opinion, she was depressed and shy, and had likely been depressed at the

time of her trial. He further opined that Davidson – who had attained a college degree while

in prison – was likely of normal intelligence, and that her poor performance in high school

and on standardized tests had likely been due to her chaotic environment, abuse, and multiple

family moves. In other words, a post-conviction psychological evaluation did not indicate

that Davidson lacked appreciation of the gravity of her crimes; it suggested that she was
7
 As we have previously noted, on direct appeal, the Indiana Supreme Court made the following observation:
“We find it hard to imagine that appellant held back, at the death penalty phase before the jury, any possible
evidence in mitigation which might be used subsequently to reduce a term of years. Moreover, appellant fails
to specify what evidence she might have introduced had her continuance been granted.” Davidson, 558 N.E.2d
at 1091.

                                                     10
likely capable of more sophisticated reasoning than testing at the time of trial had indicated.

Davidson has not demonstrated that trial counsel’s performance was deficient for failure to

present additional mitigating evidence.

       Davidson also argues that, even if trial counsel made appropriate decisions and

performed adequately, trial counsel was “rendered ineffective by Davidson’s original

attorney.” Appellant’s Brief at 21. Citing United States v. Cronic, 466 U.S. 648 (1984), she

claims that the surrounding circumstances justify a presumption of ineffectiveness. “Cronic

established, in effect, a narrow exception to the two-pronged Strickland test[.]” Conner v.

State, 711 N.E.2d 1238, 1254 (Ind. 1999).

       In Cronic, a defendant charged with mail fraud was appointed a real estate attorney

with no jury trial experience twenty-five days before trial, although the Government had

prepared for over four and one-half years. See Cronic, 466 U.S. 648. Ultimately, the United

States Supreme Court rejected a claim of ineffective assistance of counsel but suggested that,

in limited circumstances of extreme magnitude, “a presumption of ineffectiveness” may be

justified. 466 U.S. at 662. Such extreme circumstances are independently “sufficient [to

establish a claim of ineffective assistance] without inquiry into counsel’s actual performance

at trial.” Id. Three such situations were identified by the Cronic Court: (1) when counsel is

completely denied; (2) when counsel entirely fails to subject the prosecution’s case to

meaningful adversarial testing; or (3) when surrounding circumstances are such that,

“although counsel is available to assist the accused during trial, the likelihood that any

lawyer, even a fully competent one, could provide effective assistance is so small that a


                                              11
presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.”

Id. at 659-60.

       In evaluating a claim regarding the third situation, alleged systemic defects in a county

indigent defense system, our Indiana Supreme Court reiterated that the burden under Cronic

is “extremely heavy.” Games v. State, 684 N.E.2d 466, 481 (Ind. 1997), modified on other

grounds, 690 N.E.2d 211 (Ind. 1997). To presume prejudice under Cronic in a post-

conviction proceeding, the petitioner must show that “the circumstances completely deprived

[her] of any meaningful opportunity to subject the State’s evidence to adversarial testing” and

also must convince the appellate Court that, to the extent the claim rests upon factual issues,

the evidence presented during the post-conviction proceeding is without conflict and, as a

whole, leads unerringly and unmistakably to a decision opposite the post-conviction court’s

rejection of the petitioner’s claim. Id. at 479-80. See also Conner, 711 N.E.2d at 1255

(observing that “theoretical imperfections alone will not satisfy the extremely heavy Cronic

burden and force us to find a Cronic exception to the Strickland analysis”).

       Davidson asserts that pretrial counsel rendered poor advice and allowed Davidson to

relinquish her right to remain silent on multiple occasions, effectively setting up trial counsel

for failure regardless of their efforts. On direct appeal of Davidson’s conviction, the Court

observed that Davidson had given her police statement when she was not in custody and had

not yet been charged. Davidson, 558 N.E.2d at 1088. Accordingly, citing Whitehead v.

State, 511 N.E.2d 284 (Ind. 1987) [now overruled on other grounds], the Court further




                                               12
observed: “her right to counsel had not yet attached.” Davidson, 558 N.E.2d at 1088.8

        However, the Court reviewed pretrial counsel’s performance as necessary to address

certain allegations of error made by Davidson:

        Appellant contends the polygraph evidence should not have been admitted
        because the attorney who represented her during that time rendered ineffective
        assistance by incompetently advising her to submit to the test and that his
        performance suffered due to a conflict of interest. The funeral director who
        handled Rodrigues’ arrangements, Mr. Baity, also arranged for Louis McHenry
        to represent appellant in her attempt to collect the insurance money. McHenry
        then served as appellant’s counsel throughout the CHINS, grand jury, and
        coroner’s inquest proceedings. He discontinued his representation when
        criminal charges were filed against appellant subsequent to the polygraph
        examination and defense counsel was appointed by the court.

        A mere possibility of a conflict of interest is not sufficient to impugn a
        criminal conviction[.] . . .

        Regarding McHenry’s alleged incompetence in allowing appellant to submit to
        the polygraph test, during the suppression hearing appellant introduced the
        testimony of attorney Edwin S. Sedwick, who opined that to so advise a client
        accused of two separate murders would amount to ineffective assistance.
        However, McHenry spent thirty-five minutes just prior to the examination
        explaining to appellant the agreement in stipulation of polygraph, waivers and
        certification of understanding, and advisement of rights; throughout all the
        proceedings, appellant maintained her innocence; and in light of the
        stipulation’s provision that the State would not pursue charges if the test
        results indicated appellant’s noninvolvement in the drowning, counsel’s failure
        to dissuade her from undergoing the test clearly represents a sound tactical
        decision such as not to be condemned “through the distortions of hindsight.”
        Slaton v. State (1987), Ind., 510 N.E.2d 1343, 1345. We find no error in the
        admission of the polygraph evidence.

        Appellant contends the trial court erred in admitting into evidence the tape
        recordings and transcripts of her grand jury, CHINS hearing and coroner’s
        inquest testimony, the coroner’s verdict, the polygraph examiner’s report, and

8
 See Davis v. United States, 512 U.S. 452, 456-57 (1994) (clarifying that “The Sixth Amendment right to
counsel attaches only at the initiation of adversarial criminal proceedings and before proceedings are initiated a
suspect in a criminal investigation has no constitutional right to the assistance of counsel.”)

                                                       13
       two statements given by appellant to police. At the suppression hearing, she
       introduced testimony to the effect that she had an intelligence quotient of 86
       and a sixth-grade reading comprehension level, while the readability level of a
       standard advice of rights form is between seventh and tenth grade and that of
       the agreement in stipulation of polygraph form is at a scientific, professional,
       or technical level. Reiterating her ineffectiveness of pretrial counsel argument,
       she maintains her Sixth Amendment right to effective counsel was violated due
       to a conflict of interest, resulting in her cooperation in the above proceedings
       which led to the admission of incriminating statements in violation of her Fifth
       Amendment rights.

       Throughout the proceedings, her counsel’s advice to cooperate was clearly a
       matter of strategy. Id. Moreover, the record demonstrates that at each of the
       proceedings listed above, she was informed that her testimony could be used at
       a subsequent trial and she acknowledged she understood; it thus appears that
       despite appellant’s relatively low reading comprehension ability, with the aid
       of counsel she was able to comprehend the nature of the pretrial proceedings
       intelligently enough to waive them freely and voluntarily. See Thacker v. State
       (1985), Ind. App., 477 N.E.2d 921.

Davidson, 558 N.E.2d at 1087-88.

       Because the issue of the performance of pretrial counsel is res judicata, Davidson

purportedly challenges only trial counsel’s performance. However, in presenting her

argument that trial counsel was doomed to inadequacy, she necessarily assumes that pretrial

counsel performed in a deficient manner. This is contrary to our Supreme Court’s

recognition that pretrial counsel’s decisions were strategic; we will not indulge a presumption

of trial counsel’s ineffectiveness which necessarily rests upon a premise rejected by the

higher court.

       There was not a complete failure by trial counsel to act in a representative capacity.

Even assuming that trial counsel’s task was made more difficult by decisions of pretrial

counsel, there was no abandonment of Davidson. Davidson has not demonstrated that the


                                              14
circumstances are such that a presumption of ineffectiveness is appropriate. Accordingly, the

post-conviction court did not err in applying a Strickland analysis as opposed to presuming

prejudice under the Cronic standard.

                             II. Effectiveness of Appellate Counsel

         Davidson contends that, although appellate counsel challenged her sentence on direct

appeal, he did so inadequately. A defendant is entitled to the effective assistance of appellate

counsel. Stevens v. State, 770 N.E.2d 739, 760 (Ind. 2002). The two-pronged standard for

evaluating the assistance of trial counsel first enunciated in Strickland is applicable to

appellate counsel ineffective assistance claims. Bieghler v. State, 690 N.E.2d 188, 192 (Ind.

1997).

         There are three basic categories of alleged appellate counsel ineffectiveness: (1)

denying access to an appeal, (2) waiver of issues, and (3) failure to present issues well. Id. at

193-95. Here, the third category is implicated. Claims of inadequate presentation of issues

not waived are the most difficult to advance, and are almost always unsuccessful. Id. at 195.

First, the claims essentially require the reviewing tribunal to re-view specific issues it has

already adjudicated to determine whether new record citations, case references, or arguments

would have had “any marginal effect on their previous decision.” Id. Second, an Indiana

appellate court is not limited in its review of issues to the facts and cases cited and the

arguments made by the appellant’s counsel. Id. Rather, the reviewing court will commonly

review relevant portions of the record, perform separate legal research, and often decide

cases based on legal arguments and reasoning not advanced by either party. Id. For these


                                               15
reasons, an assertion of appellate ineffectiveness challenging the quality of counsel’s

treatment of an issue actually presented must “overcome the strongest presumption of

adequate assistance.” Id. at 196. The already “highly deferential” scrutiny of counsel’s

performance is “properly at its highest” and “relief is only appropriate when the appellate

court is confident it would have ruled differently.” Id.

       At the time of Davidson’s direct appeal, sentences were reviewed according to Indiana

Appellate Rule 17(B), which provided:

       (1)     The reviewing court will not revise a sentence authorized by statute
           except where such sentence is manifestly unreasonable in light of the
           nature of the offense and the character of the offender; and
       (2)     A sentence is not manifestly unreasonable unless no reasonable person
           could find such sentence appropriate to the particular offense and offender
           for which such sentence was imposed.

A claim that a sentence was manifestly unreasonable required the appellate court to

reexamine the valid aggravating and mitigating circumstances. Carter v. State, 711 N.E.2d

835, 841 (Ind. 1999). Review under this rule was “very deferential” to the trial court, and the

reviewing court would revise a sentence only when it was found to be “clearly, plainly and

obviously unreasonable.” Tobar v. State, 740 N.E.2d 109, 113 (Ind. 2000).

       Davidson’s sentencing challenge was addressed by the Court as follows:

       Appellant argues the trial court considered improper factors in aggravation in
       order to enhance her two murder sentences to the maximum sixty (60) years
       each to be served consecutively. She maintains it was improper for the court
       to find as aggravating circumstances that she was “incorrigible” and had been
       away from home without permission, that she had given birth to two children
       by the age of eighteen, and that she failed to show remorse such that her
       steadfast denial of responsibility for the deaths resulted in perjury charges
       pending against her at the time of sentencing.


                                              16
       Appellant characterizes the court’s use of these circumstances as constituting
       the improper use in aggravation of uncharged crimes and of her failure to
       admit guilt, which have been held to be improper reasons for enhancing [a]
       sentence in, respectively, Anderson v. State (1983), Ind., 448 N.E.2d 1180 and
       Guenther v. State (1986), Ind. App., 495 N.E.2d 788. However, appellant fails
       to note the decision in Guenther subsequently was vacated by this Court,
       holding that lack of remorse is a proper consideration where it reveals a
       likelihood the crime would be repeated. Guenther v. State (1986), Ind., 501
       N.E.2d 1071. Similarly, viewed properly in context, the trial court’s mention
       of the circumstances here at issue was by way of concluding that to prevent
       recurrence of her offenses, appellant required long-term rehabilitative
       treatment best provided by a penal institution. See also Stewart v. State
       (1988), Ind., 531 N.E.2d 1146.

       Moreover, enhancement of presumptive sentences, along with imposition of
       consecutive sentences, may be supported by a single aggravating circumstance.
        Id.; Anderson, supra. Here, the trial court found, in addition to the
       circumstances mentioned above, that there were two murders, that the victims
       were of tender age and dependent upon their mother, the perpetrator, and that
       imposition of a lesser sentence would depreciate the seriousness of the crimes.
        In light of all the factors enunciated by the trial court, we do not find the
       sentence here to be manifestly unreasonable.

Davidson, 558 N.E.2d at 1091-92.

       Davidson’s contentions with respect to appellate counsel’s performance distill to the

following: that appellate counsel did not adequately identify the shortcomings of the trial

court’s sentencing statement and challenge the weighing process and the imposition of

consecutive sentences. According to Davidson, the trial court made contradictory findings as

to mitigating factors, failed to find clearly supported mitigating factors of youth, lack of

criminal history, self-improvement in jail, extreme emotional disturbance, and borderline

intelligence, relied upon improper aggravators and “summarily” ordered consecutive

sentences. Appellant’s Brief at 7. She points out that the trial court believed her to be

incorrigible and also referenced as an aggravator “imposition of a reduced sentence … will

                                             17
depreciate the seriousness of the crimes.” (Tr. 6361-62.)

          The oral sentencing statement was not perfectly consistent.9 For example, the trial

court recognized that Davidson had no criminal history and no formal delinquency history

but found it appropriate to “infer” that Davidson had been incorrigible because she left home

without permission and had multiple teenage pregnancies. (Tr. 6361.) In Davidson’s view,

the trial court’s recognition of “incorrigibility” transformed mitigating circumstances of

youthfulness and lack of criminal record into an aggravating circumstance.                     She

acknowledges that appellate counsel “mentioned this error in passing” but claims that he

failed to present a cogent argument in this regard. Appellant’s Brief at 13.

          Nonetheless, Davidson’s contentions present the exact situation described in Bieghler:

    they require revisiting issues already adjudicated to attempt to discern if additional treatment

of the issues would have “any marginal effect.” 690 N.E.2d at 195. Although Davidson

criticizes the brevity of some sentencing arguments, she does not contend that the reviewing

Court was unaware of the relevant facts or the applicable law when conducting its

independent review. For example, the reviewing Court was clearly apprised that Davidson

was only eighteen and nineteen years of age when she committed the murders of her children.

    The record included lengthy descriptions of the abuse Davidson had endured at the hands of

her mother, a stepfather, and her husband. There was also an abundance of testimony that

Davidson had behaved well during her incarceration, participated in visitation with her living



9
    No written sentencing statement was entered into the record.


                                                      18
children,10 and nurtured relationships with family friends and a pastor.

           Moreover, the Court cannot be said to lack awareness of the limited purpose of the

isolated aggravator, “imposition of a lesser sentence would depreciate the seriousness of the

crimes.” Prior to Davidson’s appeal, the Supreme Court had recognized that the particular

statutory aggravator “appears to be applicable only when the trial court is considering the

imposition of a reduced sentence.” Evans v. State, 497 N.E.2d 919, 923 (Ind. 1986). As

noted in Bieghler, the reviewing Court predictably conducts research of its own precedent.

690 N.E.2d at 195. Thus, even where appellate counsel did not specifically challenge the

aggravator, we can safely assume that the Court did not rely upon that factor in reviewing the

sentence for manifest unreasonableness.

           Davidson also faults her appellate counsel for failing to argue that the trial court did

not contemporaneously identify an aggravating circumstance to support the imposition of

consecutive sentences. Nonetheless, a more particularized argument would not have changed

the outcome. As our supreme court observed, the record revealed multiple aggravating

circumstances, including the fact that there were multiple victims, and a single aggravating

circumstance would suffice to support the imposition of consecutive sentences. Davidson,

558 N.E.2d at 1092.

           Given all the circumstances known to the Indiana Supreme Court regarding

Davidson’s offenses and her character, the Court determined that her sentence was not

manifestly unreasonable. The development of a post-conviction record did not result in any


10
     Davidson had given birth to her fourth child during her incarceration.

                                                       19
supplementation of the direct appeal record that could have conceivably altered the Court’s

assessment of the sentence imposed.

                                       Conclusion

       Davidson has not established that she was denied the effective assistance of trial or

appellate counsel. Accordingly, the post-conviction court properly denied Davidson post-

conviction relief.

       Affirmed.

ROBB, C.J., and MATHIAS, J., concur.




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