                                                            FILED
Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                         May 03 2012, 9:11 am
court except for the purpose of
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




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

JOSEPH M. CLEARY                                GREGORY F. ZOELLER
Collignon & Dietrick                            Attorney General of Indiana
Indianapolis, Indiana
                                                JODI KATHRYN STEIN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

GREGORY FOSTER,                                 )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )      No. 02A04-1107-PC-398
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Respondent.                     )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Frances C. Gull, Judge
                             Cause No. 02D04-0604-PC-51


                                       May 3, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                               STATEMENT OF THE CASE

       Appellant-Petitioner, Gregory Foster (Foster), appeals the post-conviction court’s

denial of his petition for post-conviction relief.

       We affirm.

                                           ISSUES

       Foster raises three issues on appeal, which we consolidate and restate as the

following two issues:

       (1)   Whether the post-conviction court erred in finding that he received the

effective assistance of counsel; and

       (2) Whether the post-conviction court erred in denying his petition for post-

conviction relief despite Foster’s claim of newly discovered evidence.

                         FACTS AND PROCEDURAL HISTORY

       In Foster v. State, 795 N.E.2d 1078, 1082-84 (Ind. Ct. App. 2003), trans. denied.,

we outlined the facts of this case as follows:

              On November 18, 2000, at approximately 3:00 a.m., S.J. was
       walking from her apartment to visit a friend. S.J. lived in the Eden Green
       Apartments in Fort Wayne, Indiana. As S.J. walked down the street, Foster
       drove by in a white Toyota Camry, and called out the name “Diane,”
       thinking that S.J. was her aunt. S.J. informed Foster that she was not Diane
       and told him her first name. Foster offered S.J. a ride because it was late at
       night and she was walking alone. S.J. accepted the ride and entered the car.
       Once S.J. entered the car, Foster drove in the opposite direction of S.J.’s
       intended destination.
              As a result, S.J. informed Foster that he was going in the wrong
       direction. Foster told S.J. that he had to take care of some business first and
       encouraged her to calm down. At this point, S.J. became worried, but she
       was not scared. However, S.J. asked Foster several times to stop in order to
                                                 2
let her out of the car. Foster ignored her requests and continued to drive to
the Canterbury Green Apartments, on the other side of town. Foster parked
in a carport and left the car for about five minutes. S.J. testified that she
remained in the car for the following reasons: (1) it was late, (2) she did
not know the area, (3) it was dark, and (4) mostly white people, who she
did not think would help her, inhabited the Canterbury Green Apartments.
        When Foster reentered the car, he placed a black handgun on the
dashboard and drove to Shoaff Park located in Fort Wayne, Allen County,
Indiana. After seeing the handgun, S.J. was scared, and she began to cry.
Again, S.J. informed Foster that she wanted to go home. Foster told S.J. to
shut up. Then, Foster parked the car in a dark area of Shoaff Park
surrounded by trees. He ordered that S.J. perform oral sex on him. When
Foster threatened to use the handgun, S.J. performed oral sex on him as he
requested. Afterwards, Foster instructed S.J. to pull her pants off and sit
back in her seat. When S.J. complied, Foster lay on top of her, and engaged
in sexual intercourse with her. S.J. testified that she cried and asked Foster
to stop, but that he just told her to shut up and stop crying. Foster
ejaculated on S.J.’s thigh and ordered her out of the car. S.J. testified that
she refused to exit the car because she thought Foster would kill her if she
exited the car. When S.J. refused to exit the car, Foster drove her back to
her apartment. As Foster drove away, S.J. remembered the license plate
number of the car Foster was driving.
        As S.J. stood outside, she saw Fort Wayne Police Officer James
King (Officer King) in a store parking lot. S.J. approached Officer King
and told him that she had been raped. S.J. was hysterical and Officer King
calmed her down before taking her statement. S.J. provided Officer King
with a description of her attacker, and a description of the car he was
driving with the license plate number. Officer King contacted the medics
for S.J. S.J. was taken to the Sexual Assault Treatment Center and
examined by Nurse Stephanie Good (Nurse Good). Nurse Good completed
a rape kit for S.J. S.J. reported that her upper arms were tender. There
were also fresh bruises on her lower extremities. In the meantime, Officer
King ran the license plate number provided by S.J. and discovered that the
car was registered to Shirley Foster, Foster’s mother. S.J. later identified
Foster from a photo array.
        Indiana State Police DNA Analyst, Mary Reed [(DNA Analyst
Reed)], performed a DNA analysis on several of the samples from S.J.’s
rape kit. The swab taken from S.J.’s left thigh was consistent with Foster’s
DNA. [DNA Analyst Reed] testified that one African–American in fifty-
eight billion would match the DNA found on S.J.’s left thigh and external
genitalia. The vaginal and cervical swabs were consistent with S.J., Foster,

                                      3
       and an unknown third contributor. The swab taken from S.J.’s right groin
       area was also consistent with both S.J. and Foster.
            On November 21, 2000, Fort Wayne Detective Hilda Williams
       (Detective Williams) interviewed Foster. Detective Williams testified that,
       at first, Foster denied that he picked up a girl during the early hours of
       November 18, 2000. However, Detective Williams testified that Foster
       later claimed that he picked up a girl, on November 18, 2000, and drove her
       one block up the street, but that no sexual contact occurred.
               On February 16, 2001, the State of Indiana filed [an Information],
       charging Foster with Count I, rape, a Class A felony; Count II, criminal
       deviate conduct, a Class A felony; and Count III, criminal confinement, a
       Class B felony. On March 5, 2001, a warrant was issued for Foster’s arrest.
       Foster was arrested pursuant to the warrant on March 7, 2001. On March 9,
       2001, the trial court held Foster’s initial hearing. On April 25, 2001, the
       State filed an additional [I]nformation alleging that Foster was a habitual
       offender, I.C. § 35-50-2-8.

*      *      *

               A jury trial was held on April 23–24, 2002. On April 24, 2002,
       during a hearing held outside of the presence of the jury regarding final
       instructions, Foster objected to the State’s tendered final instruction
       providing that a conviction can rest on the uncorroborated testimony of the
       victim, if believed beyond a reasonable doubt. The trial court gave the
       instruction over Foster’s objection. On the same date, the jury found Foster
       guilty of rape, criminal deviate conduct, and criminal confinement. The
       jury also determined that Foster was a habitual offender.
               On May 20, 2002, a sentencing hearing was held. The trial court
       sentenced Foster to the Indiana Department of Correction for a period of
       fifty (50) years on Count I, enhanced by a term of thirty (30) years due to
       his habitual offender status; fifty (50) years on Count II; and twenty (20)
       years on Count III, for an aggregate sentence of 150 years; each sentence to
       run consecutively to the others.

       On appeal, Foster raised three issues with respect to his conviction and sentence:

(1) whether the trial court committed reversible error when it instructed the jury that the

sole and uncorroborated testimony of the alleged victim, if believed beyond a reasonable

doubt, was sufficient to support a conviction; (2) whether the trial court properly denied

                                            4
Foster’s motions for discharge pursuant to Indiana Criminal Rule 4; and (3) whether

Foster’s 150-year sentence was proper.              Id. at 1082.      On September 17, 2003, we

affirmed his conviction and sentence. Id.

        On April 27, 2006, Foster filed a petition for post-conviction relief, which he

subsequently amended on January 19, 2010. In his amended petition, Foster alleged that

(1) his trial and appellate counselors had provided him with ineffective assistance; (2) the

State had failed to disclose material exculpatory evidence; and (3) there existed newly

discovered material and exculpatory evidence that warranted a new trial for Foster.1 On

August 27, 2010, the post-conviction court held an evidentiary hearing on Foster’s

petition, and on June 15, 2011, the post-conviction court denied the petition.

        Foster now appeals. Additional facts will be provided as necessary.

                                    DISCUSSION AND DECISION

        On appeal from the denial of post-conviction relief, a petitioner stands in the

position of one appealing from a negative judgment. Mauricio v. State, 941 N.E.2d 497,

498 (Ind. 2011). In such cases, a petitioner must show that the evidence, taken as a

whole, leads unerringly and unmistakably to a conclusion opposite that reached by the

post-conviction court.        Id.     We do not defer to the post-conviction court’s legal

conclusions, but we will reverse only on a showing of clear error. Id. Moreover, this

court will only consider the probative evidence and all reasonable inferences therefrom


1
 We will not address the issue of whether the State failed to disclose material exculpatory evidence as
Foster has not raised the issue on appeal.

                                                    5
that support the post-conviction court’s determination. Bigler v. State, 732 N.E.2d 191,

194 (Ind. Ct. App. 2000), trans. denied. We will not reweigh the evidence. Id.

                           I. Ineffective Assistance of Counsel

       Foster first contends that he received ineffective assistance from both his trial and

appellate counsel. The effective assistance of counsel is a right that is guaranteed to all

criminal defendants by the Sixth Amendment to the United States Constitution and

Article I, section 13 of the Indiana Constitution.       In order to establish ineffective

assistance of counsel, a defendant must fulfill both prongs of the test set forth in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reh’g

denied. Specht v. State, 838 N.E.2d 1081, 1087 (Ind. Ct. App. 2005), trans. denied. First,

the defendant must prove that his or her counsel’s performance fell below an objective

standard of reasonableness based on prevailing professional norms, and, second, that

there is a reasonable probability that, but for counsel’s failure to meet prevailing

professional norms, the result of the proceeding would have been different. Armstrong v.

State, 932 N.E.2d 1263, 1268 (Ind. Ct. App. 2010). “Because all criminal defense

attorneys will not agree on the most effective way to represent a client, ‘isolated

mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily

render representation ineffective.’   Thus, there is a strong presumption that counsel

rendered adequate assistance and used reasonable professional judgment.”          Id. The

presumption that an attorney has discharged his duty fully is overcome for purposes of

post-conviction relief only by showing that the attorney’s action or inaction made the

                                             6
proceedings a mockery of justice and shocking to the conscience of the court. Whitlock

v. State, 456 N.E.2d 717, 718 (Ind. 1983).

                                    A. Trial Counsel

       According to Foster, his trial counsel provided ineffective assistance in four

respects: counsel failed to (1) investigate the DNA of the unknown person found during

S.J.’s examination; (2) object to S.J.’s testimony that she was not sure whether Foster was

the father of her child; (3) move for a judgment on the evidence at the end of the State’s

case; and (4) object when the trial court submitted ex parte responses to jury questions.

We will address each of these arguments individually.

                                1. Failure to Investigate

       As stated above, DNA Analyst Reed performed a DNA analysis on several of the

samples from S.J.’s rape kit. The vaginal and cervical swabs were consistent with S.J.,

Foster, and an unknown third contributor. In a deposition taken before trial by a prior

counsel, S.J. indicated that she thought the father of her child might be a man named Ben

Spencer, Jr. (Spencer). Then, at trial she indicated that she had engaged in sexual

intercourse with her boyfriend, whom she identified as Robert, shortly prior to meeting

Foster. She also indicated at trial that she was on her way to visit another man, Darrell

Masterson (Masterson), at a pool hall when she met Foster on the street. Later in the

trial, S.J. testified that she had realized that she had engaged in sexual intercourse with

Spencer prior to meeting Foster, as Spencer was her boyfriend at the time rather than



                                             7
Robert. Post-trial DNA testing indicated that a man with the last name of Pippin was the

father of S.J.’s child.

       On appeal, Foster argues that his trial counsel provided ineffective assistance

because counsel failed to investigate the identity of this unknown contributor of DNA

found during S.J.’s exam. According to Foster, knowledge of the unknown person could

have allowed him to impeach S.J.’s testimony. Also, one of his trial counsel’s theories of

defense was that S.J. was a prostitute or promiscuous, and Foster asserts that knowledge

of the identity of the unknown third person could have bolstered this defense.

       We acknowledge that the failure to conduct an investigation can constitute

ineffective assistance of counsel. See McCarty v. State, 802 N.E.2d 959 (Ind. Ct. App.

2004), trans. denied.     However, when deciding a claim of ineffective assistance of

counsel for failure to investigate, we apply a great deal of deference to counsel’s

judgments. Parish v. State, 838 N.E.2d 495, 500 (Ind. Ct. App. 2005), reh’g denied. 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; therefore, we will assume

that counsel performed adequately and we will defer to counsel’s strategic and tactical

decisions. Mallory v. State, 954 N.E.2d 933, 935 (Ind. Ct. App. 2011). Moreover, many

failures to investigate require going beyond the trial record to show what the

investigation, if undertaken, would have produced. Slusher v. State, 823 N.E.2d 1219,

1223 (Ind. Ct. App. 2005). This is necessary because the success on the prejudice prong



                                             8
of an ineffectiveness claim requires a showing of a reasonable probability of affecting the

result. Id.

       At the post-conviction hearing, Foster’s trial counsel admitted that he did not

recall making any efforts to identify the unknown third contributor of the DNA found on

S.J. However, the following exhange occurred at the post-conviction hearing:

       [STATE]: Apparently [there] was an unknown individual and the question
       I have is, like either it could’ve been some information that would have
       benefitted [Foster’s] case like well it was my boyfriend and she admitted
       she had sex with her boyfriend, or it would’ve been someone else which
       according to your theory would’ve been beneficial to your case cause it
       would’ve shown she was having sex with more and more people. Did you
       have any reason to find out which of those it was to the best of your
       recollection?

       [TRIAL COUNSEL]: Well it was either the boyfriend or an unknown
       individual so how would you find out anything different[?] . . . .

       *      *      *

       [STATE]: So it sounds like there was nothing that would’ve been
       beneficial to your case as far as you can recall in either event, find out that
       it was the boyfriend or that it was someone else.

       [TRIAL COUNSEL]: Well here’s the situation. You’ve got the identity of
       an unknown individual and perhaps it was the boyfriend so what do you
       have with that[?] Well the jury recognizes that we have a number of men
       having sex with this lady. The issue is whether it’s consensual or whether
       it was with a gun that was never found and that type of thing. So for
       example, well and hypothetically even assuming we could find the
       unknown individual[,] what would, what relevance or benefit, he could say
       something he could help us or hurt us, we don’t know. Or, so I, in trying to
       answer your question I believe at the time all, that this was coming into
       play it is a matter of trial strategy with the jury, it was beneficial for the
       jury to understand that she was sexually active and that she had sperm and
       she didn’t know who[se] it was.


                                             9
(Post-Conviction Transcript pp. 34-36).2 We agree with Foster’s trial counsel that his

failure to investigate was a reasonable trial strategy. As trial counsel stated at the post-

conviction court hearing, his defense was that S.J. was promiscuous and that, as a result,

her intercourse with Foster was consensual. It is speculative to argue that proving the

identity of the unknown person would have bolstered Foster’s defense because it is

possible that the unknown person was S.J.’s boyfriend, as she testified, which to the

contrary would have bolstered her story. Instead, maintaining the anonymity of the

unknown third contributor allowed the jury to infer that, as trial counsel stated, S.J. was

so sexually active that she did not know the identity of the third contributor.

Accordingly, we conclude that Foster’s trial counsel did not deny him effective assistance

by failing to investigate the identity of the unknown contributor.

                                  2. Failure to Object to Testimony

        In a similar vein, Foster argues that his trial counsel provided ineffective

assistance when he failed to object to S.J.’s testimony that “I don’t even know if this man

is the father of my son.” (Trial Tr. p. 294). We conclude that, as above, this was a

reasonable trial strategy. At the post-conviction hearing, Foster’s trial counsel explained

that “first of all, if I would’ve objected to it that would’ve highlighted the jury’s attention

to that response. Secondly it, I don’t even know if this is the father of my child, well, that




2
 Throughout the remainder of this Opinion, we will refer to the trial transcript as “Trial Tr.” and the post-
conviction hearing transcript as “P-C Tr.”

                                                     10
certainly told the jury she’s out having sex with . . . many other men. . . . I mean, that sort

of told me, hey I’m a loose woman[, which] went to our defense.” (P-C Tr. pp. 26-27).

       We have previously held that a decision not to draw the jury’s attention to

undesirable testimony may be a reasonable trial strategy. See Stevens v. State, 770

N.E.2d 739, 752 (Ind. 2002), cert. denied., 128 S.Ct. 2423 (2008). In addition, we find

that S.J.’s testimony reasonably supported the defense’s strategy of demonstrating to the

jury that S.J. had multiple sexual partners. Accordingly, we conclude that Foster’s

counsel’s failure to object did not deny Foster the effective assistance of counsel.

3. Failure to Timely Move for a Judgment on the Evidence

       Next, Foster claims that his trial counsel provided him with ineffective assistance

because his counsel failed to make a timely motion for judgment on the evidence. Under

Ind. Trial Rule 56, “[W]here all or some of the issues in a case tried before a jury or an

advisory jury are not supported by sufficient evidence or a verdict thereon is clearly

erroneous as contrary to the evidence because the evidence is insufficient to support it,

the court shall withdraw such issues from the jury and enter judgment thereon or shall

enter judgment thereon nothwithstanding a verdict.” Among other times, a party may

move for such a judgment on the evidence “after another party carrying the burden of

proof or of going forward with the evidence upon any one or more issues has completed

presentation of his evidence thereon.” T.R.56(1),-(3). Foster’s counsel made such a

motion at the sentencing hearing, but Foster claims that he should have made the motion

at the close of the State’s case instead. Specifically, Foster argues that because evidence

                                              11
of a gun was never recovered and there was no DNA evidence of oral sex, the trial court

would have granted a motion after the State presented its evidence.

       In support of his argument, Foster cites Williams v. State, 748 N.E.2d 887 (Ind. Ct.

App. 2001), reh’g denied. In Williams, Williams’ trial counsel failed to move for a

judgment on the evidence as to Williams’ charges and failed to challenge the sufficiency

of the evidence to support Williams’ convictions on appeal. Id. at 891. Ultimately, we

noted that the performance of Williams’ counsel fell below an objective standard of

reasonableness as determined by prevailing professional norms because there was

insufficient evidence to support the charges, and counsel was unable to provide a reason

for his failure to raise the issue. Id. at 895.

       However, we note several distinguishing factors between Williams and the case at

hand. First, Williams’ counsel did not move for a judgment on the evidence at any point

during Williams’ trial. Id. In the instant case, Foster’s counsel did move for a judgment

on the evidence, although it was at sentencing rather than at the close of the State’s case.

Also, contrary to Foster’s assertions, evidence of a gun and DNA evidence that Foster

forced S.J. to perform oral sex were not necessary to support his charges. We have

recognized that the uncorroborated testimony of a rape victim is sufficient evidence to

sustain a rape conviction on appeal, and S.J. testified that Foster placed a gun on the dash

board of her car and forced her to perform oral sex. Ellyson v. State, 603 N.E.2d 1369,

1374 (Ind. Ct. App. 1992). Thus, it was not dispositive that the investigators never

recovered a gun or DNA evidence that Foster forced S.J. to perform oral sex. As Foster

                                                  12
does not otherwise dispute the sufficiency of the State’s evidence, we conclude that a

motion for a judgment on the evidence would not have been successful at the end of the

State’s case. Thus, Foster’s counsel did not provide ineffective assistance in refraining

from moving for a judgment on the evidence at that point in time.

              4. Failure to Object to Ex Parte Communication with the Jury

       Finally, Foster argues that his trial counsel should have objected when the trial

court engaged in ex parte communication with the jury without notifying counsel or

Foster. After retiring to deliberate, the jury sent the trial court a question regarding S.J.’s

testimony. The trial court responded: “please rely on your memories or your notes of the

testimony . . . .” (Trial Tr. p. 499). The trial court later informed Foster’s counsel of the

question and counsel indicated that he agreed with the response the trial court had given

the jury. Now, however, Foster argues that the trial court’s failure to notify his counsel

prior to communicating with the jury constituted a denial of counsel at a critical stage of

the criminal proceedings and requires an automatic reversal.

       The circumstances in the instant case are analogous to those in Stephenson v.

State, 742 N.E.2d 463 (Ind. 2001), cert. denied, 128 S.Ct. 1871 (2008). In Stephenson,

the jury sent a note to the trial court after the jury had retired for deliberations. In the

note, the jury stated: “We would like to listen to [defendant’s] tape 4810. Can we see the

depositions of Brian M. & Dale Funk?” Id. at 492. In response, the trial court “advised

the [b]ailiff to tell the jury that the court could not provide the items requested [by]

them.” Id. The trial court later told both parties of the ex parte communication. Id.

                                              13
       On appeal, the supreme court noted that Indiana case law recognizes state

constitutional protection for a defendant’s right to be present when a jury makes a request

for any additional guidance during deliberations. Id. The supreme court also noted the

procedural guidelines for such a situation, specifying that the trial court should:

       notify the parties so they may be present in court and informed of the
       court’s proposed response to the jury before the judge ever communicates
       with the jury. When this procedure is not followed, it is an ex parte
       communication and such communications between the judge and the jury
       without informing the defendant are forbidden. However, although an ex
       parte communication creates a presumption of error, such presumption is
       rebuttable and does not constitute per se grounds for reversal. When a trial
       judge responds to the jury’s request by denying it, any inference of
       prejudice is rebutted and any error deemed harmless.

Id. The supreme court ultimately held that even though the trial court had failed to notify

the parties or counsel before responding to the jury, the error was harmless because the

trial court merely denied the jury’s request. Id.

       Here, almost exactly the same course of events occurred. The jury sent the trial

court a question regarding the testimony, and the trial court refused to answer the

question, merely telling the jury members to rely on their memories and notes. Foster’s

trial counsel agreed that he would have recommended the same response if the trial court

had notified him before it sent its note to the jury.        In light of these factors and

Stephenson, we conclude that the trial court’s communication was a harmless error, and




                                             14
Foster’s counsel therefore did not provide ineffective assistance in declining to object to

the ex parte communication.3

                                        B. Appellate Counsel

        Next, Foster claims that he received ineffective assistance from his appellate

counsel because his counsel did not raise the issue of his rights under the Supreme Court

of the United States’ decision in Blakely v. Washington, 594 U.S. 296 (2004), reh’g

denied. In 1977, the Indiana Legislature adopted a sentencing scheme that included fixed

term presumptive sentences, as well as upper and lower limits, for each Class of felonies.

Anglemyer v. State, 868 N.E.2d 482, 485-86 (Ind. 2007), clarified on reh’g, 875 N.E.2d

218 (Ind. 2007). When a trial court deviated from the fixed presumptive sentence, it was

required to “(1) identify all significant mitigating and aggravating circumstances; (2)

state the specific reason why each circumstance ha[d] been determined to be mitigating

or aggravating; and (3) articulate the court’s evaluation and balancing of circumstances.”

Id. at 486 (quoting Prickett v. State, 856 N.E.2d 1203, 1207 (Ind. 2006)).

        In 2004, however, the Supreme Court decided Blakely, in which it held that “other

than the fact of a prior conviction, any fact that increases the penalty for a crime beyond

the statutory maximum sentence must be submitted to a jury and proven beyond a

reasonable doubt.” Id. at 301. The Supreme Court further explained that the relevant

“statutory maximum” for Blakely purposes is “not the maximum sentence [the trial court]

3
  Foster also alleges that even if the above actions did not amount to ineffective assistance of counsel
individually, Foster was prejudiced by their cumulative effect. As we have not held that any of Foster’s
counsel’s actions were prejudicial, we do not need to address this argument.

                                                   15
may impose after finding additional facts, but the maximum [it] may impose without any

additional findings.” Id. at 303-04.

       In 2005, our supreme court clarified Blakely’s application to Indiana’s

presumptive sentencing scheme in Smylie and held that Indiana’s scheme violated the

Sixth Amendment of the United States Constitution because it mandated both a fixed

term and permitted judicial discretion in finding aggravating or mitigating circumstances.

Smylie v. State, 823 N.E.2d 679, 685 (Ind. 2005), cert. denied, 546 U.S. 976, 126 S.Ct.

545, 163 L.E.2d 459 (2005). The Smiley court interpreted the “statutory maximum” for

Blakely purposes as the statutory presumptive sentence.          Id. at 684.     Thus, any

aggravating circumstances used to enhance a circumstance beyond the presumptive

sentence had to be found by a jury beyond a reasonable doubt. Id. at 686.

        In response to Blakely and Smylie, the legislature revised Indiana’s sentencing

statutes in 2005 to provide for advisory sentences rather than presumptive sentences.

Anglemyer, 868 N.E.2d at 487-88. However, the prior presumptive scheme applies in

this case, as Foster committed his offenses in 2000, prior to the legislative revisions. See

Gutermuth v. State, 868 N.E.2d 427, 431 n. 4 (Ind. 2007) (declaring that the sentencing

statute in effect at the time a crime is committed governs the sentence for that crime). At

the time of Foster’s offenses, the presumptive sentence for a Class A felony was thirty

years, with not more than twenty years added for aggravating circumstances and not more

than ten years subtracted for mitigating circumstances. I.C. § 35-50-2-4 (1998). The

presumptive sentence for a Class B felony was ten years, with not more than ten years

                                            16
added for aggravating circumstances and not more than four years subtracted for

mitigating circumstances. I.C. § 35-50-2-5 (1998). The maximum Foster could receive

as an habitual offender was thirty years. I.C. § 35-50-2-8(e) (1998). As Foster was

sentenced to 50 years for each of his Class A felonies, as well as twenty years for his

Class B felony, he received the maximum sentence on each offense—well above the

presumptive prescribed by statute.

         Here, Foster’s appellate counsel filed an appellant’s brief in March of 2003, and

this court issued its decision affirming Foster’s conviction and sentence on September 17,

2003. On April 12, 2004, our supreme court denied transfer. Subsequently, on April 24,

2004, the Supreme Court decided Blakely. See Blakely, 594 U.S. 296.              Foster now

argues that his case was not final on direct review when the Supreme Court decided

Blakely and, as a result, his appellate counsel was ineffective for failing to raise a Blakely

claim.

         We analyze an ineffective assistance of appellate counsel claim similarly to an

ineffective assistance of trial counsel claim. Bieghler v. State, 690 N.E.2d 188, 192 (Ind.

1997), cert. denied, 119 S.Ct. 550 (1998). First, we require the defendant or petitioner to

show that, in light of all of the circumstances, the identified acts or omissions of counsel

were outside the wide range of professionally competent assistance. Id. at 193. Then, we

require the defendant or petitioner to show adverse prejudice as a result of the deficient

performance. Id. Our supreme court has recognized three basic categories of alleged



                                             17
ineffectiveness of appellate counsel: (1) denying access to an appeal; (2) failing to raise

issues; and (3) failing to present issues competently. Id. at 193-94.

       In a claim that appellate counsel provided ineffective assistance regarding the

selection and presentation of issues, the defendant must overcome the strongest

presumption of adequate assistance, and judicial scrutiny is highly deferential. Ben-

Yisrayl v. State, 738 N.E.2d 253, 2060-61 (Ind. 2000), cert. denied, 122 S.Ct. 1178

(2002). A defendant may establish that his appellate counsel’s performance was deficient

where counsel failed to present a significant and obvious issue for reasons that cannot be

explained by any strategic decision. Id. In making this determination, the reviewing

court considers the information available in the trial record or otherwise known to

appellate counsel. Id. at 261. Only the precedent available to appellate counsel at the

time of the direct appeal is relevant to our determination of whether counsel was

ineffective. Donnegan v. State, 889 N.E.2d 886, 893 (Ind. Ct. App. 2008), trans. denied.

This is because “[a]ppellate counsel cannot be held ineffective for failing to anticipate or

effectuate a change in the existing law.” Id.

       We agree with Foster that his case was not final on direct review when the

Supreme Court decided Blakely and that Blakely therefore applied to him retroactively. It

has been firmly established that “a new rule for the conduct of criminal prosecutions is to

be applied retroactively to all cases, state or federal, pending on direct review or not yet

final, with no exception for cases in which the new rule constitutes a “clear break” with

the past.” Smylie, 823 N.E.2d at 687. In Smylie, our supreme court agreed that Blakely

                                             18
constituted a new rule for the purposes of retroactivity. Id. Further, the United States

Supreme Court has held that a case is “final” when “a judgment of conviction has been

rendered, the availability of appeal exhausted, and the time for a petition for certiorari

elapsed or a petition for certiorari finally denied.” Griffith v. Kentucky, 479 U.S. 314,

321 n.6 (1987). A petition for a writ of certiorari must be filed within 90 days after entry

of judgment in a state court of last resort. United States Supreme Court Rule 13. As

Foster’s time to petition for a writ of certiorari had not elapsed when the Supreme Court

decided Blakely, his case was not final, and thus the Blakely holding applied to him

retroactively.

       Nevertheless, we have previously declined to find ineffective assistance of counsel

for a counsel’s failure to raise a Blakely claim under such circumstances. In Donnegan,

we issued our opinion on June 14, 2004, and the supreme court denied Donnegan’s

petition to transfer on August 26, 2004, almost two months after the Blakely decision.

Donnegan, 889 N.E.2d at 892. In his petition for post-conviction relief, Donnegan

argued that his appellate counsel had been ineffective for failing to file an amended

petition for transfer to our supreme court. Id. at 892. The post-conviction court denied

his petition, and on appeal we affirmed the post-conviction court’s decision. Id. Our

reasoning was that, “When Donnegan filed his petition to transfer, [] the general rule was

that an issue could not be raised for the first time in a petition to transfer. Furthermore, in

Carson v. State, 813 N.E.2d 1187, 1188-89 (Ind. Ct. App. 2004), decided August 20,

2004, this court determined that Carson waived review of any argument under Blakely

                                              19
where Carson raised the issue for the first time in his petition for rehearing.” Id. at 893.

We also noted that it was not until the Smylie decision on March 9, 2005, that the

supreme court clarified that it would apply a liberal approach in determining whether a

defendant had preserved a Blakely claim for appeal. See id. As a result, we concluded

that, because only the precedent available to counsel at the time of the direct appeal is

relevant to our determination of whether counsel is ineffective, Donnegan’s counsel was

not ineffective for failing to anticipate a change in the rules governing issues raised for

the first time in a petition to transfer. Id.

       Likewise, we also note that it was not until November 9, 2005, that our supreme

court specifically clarified in Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind. 2005), that

any appellant who filed his or her initial brief prior to Smylie and failed to raise a Blakely

claim, but nonetheless challenged his or her sentence in some form, could raise a Blakely

claim by way of amendment, petition for rehearing, or petition for transfer. Kendall v.

State, 886 N.E.2d 48, 54-55 (Ind. Ct. App. 2008), trans. denied. In Kendall, we cited this

Kincaid decision as a reason for declining to find ineffective assistance of counsel when

Kincaid’s counsel failed to raise a Blakely claim in a petition for transfer. Id. at 51. We

also noted that “[p]articularly in the case of Blakely, great confusion reigned for some

time following the opinion. The Smylie court recognized the confusion that ensued in

Footnote 12, stating, in part: ‘That so many states are wrestling with the meaning of

Blakely is further evidence of its unpredictability and a further indication that reasonable

lawyers would not have known of the outcome.’” Id. at 52.

                                                20
       We find that the same reasoning applies in the instant case. Although Foster’s

counsel had the opportunity to raise Blakely in a petition for writ of certiorari because

Foster’s case was not yet final, he could not have been able to predict that it was possible

to raise the issue for the first time in such a petition. Accordingly, we conclude that

Foster’s appellate counsel did not provide him with ineffective assistance.

                             III. Newly Discovered Evidence

       Finally, Foster argues that the post-conviction court erred in denying his petition

for post-conviction relief in light of his newly discovered evidence that he is not the

father of S.J.’s baby. At the post-conviction hearing, Foster offered documents from an

Illinois CHINS proceeding that contained a handwritten note stating that Foster was not

the father of S.J.’s child. Foster attempted to admit the documents to impeach S.J.’s

testimony that she was not sure whether Foster was the father of her baby, but the post-

conviction court denied his request.

       Our supreme court has enunciated nine criteria for admission of newly-discovered

evidence.

       [N]ew evidence will mandate a new trial only when the defendant
       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.

Taylor v. State, 840 N.E.2d 324, 329-30 (Ind. 2006). To prevail upon appeal, the

petitioner must demonstrate that the newly discovered evidence met all nine of these

                                             21
criteria and that the trial court abused its discretion by failing to find so. Powell v. State,

714 N.E.2d 624, 627 (Ind. 1999).

       Foster does not present evidence with respect to any of these criteria. His only

argument is that “S.J.’s testimony was so prejudicial as to deny Foster a fair trial. [These

documents] should have been admitted at the post-conviction hearing as they demonstrate

that her testimony was demonstrably false.” (Appellant’s Br. p. 13). This argument

supports the post-conviction court’s conclusion that the evidence was “merely

impeaching” and was therefore inappropriate under criteria number four. In addition, as

the post-conviction court also concluded, this is a case where there was significant DNA

evidence and eyewitness testimony supporting Foster’s convictions. The paternity of

S.J.’s child does not mitigate that evidence and is not an element of Foster’s crimes, so it

is not probable that the newly discovered evidence would produce a different result at

trial. Accordingly, we conclude that the post-conviction court did not err in refusing to

admit the CHINS documents as newly discovered evidence and did not err in denying

Foster’s petition despite this evidence.

                                       CONCLUSION

       Based on the foregoing, we conclude that: (1) the post-conviction court did not err

in finding that Foster received the effective assistance of counsel; and (2) the post-

conviction court did not err in denying Foster’s petition for post-conviction relief in light

of newly discovered evidence.

       Affirmed.

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NAJAM, J. and DARDEN, J. concur




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