MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jul 07 2017, 6:26 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
James Orlando Washington                                  Curtis T. Hill, Jr.
Michigan City, Indiana                                    Attorney General of Indiana
                                                          Justin F. Roebel
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Orlando Washington,                                 July 7, 2017
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          45A04-1610-PC-2421
        v.                                                Appeal from the Lake Superior
                                                          Court
State of Indiana,                                         The Honorable Diane Ross
Appellee-Respondent.                                      Boswell, Judge
                                                          Trial Court Cause No.
                                                          45G03-1404-PC-4



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017             Page 1 of 22
[1]   James Orlando Washington appeals the denial of his petition for post-

      conviction relief. Washington raises four issues which we consolidate and

      restate as whether he was denied the effective assistance of trial counsel and

      appellate counsel. We affirm.


                                      Facts and Procedural History

[2]   On July 13, 2001, the State charged Washington with: Count I, attempted rape

      as a class A felony; Count II, rape as a class A felony; Count III, rape as a class

      A felony; Count IV, criminal confinement as a class B felony; Count V,

      burglary as a class B felony; and Count VI, robbery as a class B felony. On July

      25, 2001, Attorney Charles Graddick filed an appearance on behalf of

      Washington. On September 21, 2001, Attorney Graddick appeared with

      Washington and advised the court that he wished to engage in preliminary

      discussions with the State as to a possible plea, and the court granted a

      continuance. On February 27, 2004, Attorney Graddick filed a motion to

      withdraw, and the court later granted the motion.


[3]   On March 12, 2004, Attorney David Olson filed his appearance for

      Washington. On March 19, 2004, Attorney Olson filed a motion for

      substitution of counsel, the court granted the motion, and Attorney Patrick

      Young entered his appearance for Washington.


[4]   On January 12, 2005, Attorney Lemuel Stigler filed an appearance on behalf of

      Washington. Following multiple continuances since the time the charges were

      filed, the court scheduled a jury trial for February 14, 2005. Attorney Stigler


      Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017   Page 2 of 22
      orally moved to continue the February 14, 2005 jury trial and the court

      rescheduled it to March 14, 2005. On March 11, 2005, Attorney Stigler filed a

      motion for Rule 4(C) Discharge.1


[5]   On March 14, 2005, prior to the beginning of the jury trial and after some

      discussion, the court denied Washington’s motion for discharge. The jury

      found Washington guilty of attempted rape as a class A felony, two counts of

      rape as class A felonies, criminal confinement as a class B felony, and burglary

      as a class B felony. The court sentenced Washington to a total executed

      sentence of 120 years. Washington appealed, and this Court affirmed.


[6]   On March 10, 2014, Washington filed a pro se petition for post-conviction relief

      alleging that he was denied the right to a fair trial and the effective assistance of

      trial counsel and appellate counsel.


[7]   On May 8, 2015, the court held a hearing. Attorney Stigler and Washington’s

      appellate counsel, Thomas Vanes, testified. On September 26, 2016, the court

      denied Washington’s petition.


                                                       Discussion

[8]   Before discussing Washington’s allegations of error, we observe that he is

      proceeding pro se. Such litigants are held to the same standard as trained

      counsel. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.




      1
          The record does not contain a copy of this motion.


      Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017   Page 3 of 22
      We also note the general standard under which we review a post-conviction

      court’s denial of a petition for post-conviction relief. The petitioner in a post-

      conviction proceeding bears the burden of establishing grounds for relief by a

      preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004);

      Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-

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

      negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse

      the judgment unless the evidence as a whole unerringly and unmistakably leads

      to a conclusion opposite that reached by the post-conviction court. Id. Further,

      the post-conviction court in this case entered findings of fact and conclusions

      thereon in accordance with Indiana Post-Conviction Rule 1(6). “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, we accept findings of fact unless

      clearly erroneous, but we accord no deference 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.


[9]   The issue is whether Washington was denied the effective assistance of trial

      counsel and appellate counsel. He argues that his trial counsel was ineffective

      for failing to: (A) request a change of venue; (B) conduct a thorough

      investigation; and (C) communicate a plea offer. He also argues that his

      appellate counsel was ineffective for failing to raise the issue of a violation of

      Ind. Criminal Rule 4(C).


      Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017   Page 4 of 22
[10]   Generally, to prevail on a claim of ineffective assistance of counsel, a petitioner

       must demonstrate both that his counsel’s performance was deficient and that

       the petitioner was prejudiced by the deficient performance. French v. State, 778

       N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104

       S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls

       below an objective standard of reasonableness based on prevailing professional

       norms. Id. To meet the appropriate test for prejudice, the petitioner 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. A reasonable

       probability is a probability sufficient to undermine confidence in the outcome.

       Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong

       will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective

       assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.


[11]   When considering a claim of ineffective assistance of counsel, a “strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment.”

       Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance

       is presumed effective, and a defendant must offer strong and convincing

       evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73

       (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will

       not support a claim of ineffective assistance of counsel. Clark v. State, 668

       N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.

       Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second

       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017   Page 5 of 22
       guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly

       speculate as to what may or may not have been an advantageous trial strategy

       as counsel should be given deference in choosing a trial strategy which, at the

       time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d

       40, 42 (Ind. 1998). In order to prevail on a claim of ineffective assistance due to

       the failure to object, the defendant must show a reasonable probability that the

       objection would have been sustained if made. Passwater v. State, 989 N.E.2d

       766, 772 (Ind. 2013) (citing Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001),

       cert. denied, 535 U.S. 1019, 122 S. Ct. 1610 (2002)).


[12]   We apply the same standard of review to claims of ineffective assistance of

       appellate counsel as we apply to claims of ineffective assistance of trial counsel.

       Williams v. State, 724 N.E.2d 1070, 1078 (Ind. 2000), reh’g denied, cert. denied,

       531 U.S. 1128, 121 S. Ct. 886 (2001). Ineffective assistance of appellate counsel

       claims fall into three categories: (1) denial of access to an appeal; (2) waiver of

       issues; and (3) failure to present issues well. Garrett v. State, 992 N.E.2d 710,

       724 (Ind. 2013). “To show that counsel was ineffective for failing to raise an

       issue on appeal thus resulting in waiver for collateral review, ‘the defendant

       must overcome the strongest presumption of adequate assistance, and judicial

       scrutiny is highly deferential.’” Id. (quoting Ben-Yisrayl v. State, 738 N.E.2d 253,

       260-261 (Ind. 2000), reh’g denied, cert. denied, 534 U.S. 1164, 122 S. Ct. 1178

       (2002)). “To evaluate the performance prong when counsel waived issues upon

       appeal, we apply the following test: (1) whether the unraised issues are

       significant and obvious from the face of the record and (2) whether the unraised

       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017   Page 6 of 22
       issues are ‘clearly stronger’ than the raised issues.” Id. (quoting Timberlake v.

       State, 753 N.E.2d 591, 605-606 (Ind. 2001), reh’g denied, cert. denied, 537 U.S.

       839, 123 S. Ct. 162 (2002)). “If the analysis under this test demonstrates

       deficient performance, then we evaluate the prejudice prong which requires an

       examination of whether ‘the issues which . . . appellate counsel failed to raise

       would have been clearly more likely to result in reversal or an order for a new

       trial.’” Id. (quoting Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997), reh’g

       denied, cert. denied, 525 U.S. 1021, 119 S. Ct. 550 (1998)).


       A. Change of Venue


[13]   Washington argues that his trial counsel was ineffective for failing to request a

       change of venue due to pretrial publicity. He argues that sixteen of nineteen

       jurors expressed a belief that he was guilty based on the information provided

       by news articles. He asserts that the jury pool was tainted because Juror No.

       573 was allowed to return to the auditorium where other prospective jurors

       were waiting to be interviewed. He argues that several prospective jurors, who

       admitted they had no prior knowledge, returned after a recess for lunch and

       indicated they had knowledge about the case. He contends that during the

       examination of Juror No. 624, the prosecutor expressed some concern

       pertaining to information being spread during the lunch recess. The State

       contends that Washington has not shown that his counsel was ineffective for

       not seeking a change of venue because he presented no evidence that venue in

       Lake County resulted in a biased jury.



       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017   Page 7 of 22
[14]   The post-conviction court’s order states in part:


               Findings of Fact:


                                                     *****


               8. At the hearing on the petition, Attorney Lemuel Stigler
               testified that he did not feel that the pre-trial publicity regarding
               the case was an issue, or that a change of venue was necessary.


                                                     *****


               Conclusions of Law:


                                                     *****


               6. [Washington] has alleged that counsel was ineffective for
               failing to seek a change of venue due to pre-trial publicity, and
               has included in his arguments that the panel was tainted because
               a juror was permitted to return to the auditorium to remain with
               the other members of the venire.


               7. This issue is comparable to alleging counsel ineffective for
               failure to object. In order to prove ineffective assistance based
               upon counsel’s failure to object, a petitioner must establish that
               an objection, if made, would have been sustained. Garrett v.
               State, 992 N.E.2d 710, 723 (Ind. 2013), citing Wrinkles v. State,
               749 N.E.2d 1179, 1192 (Ind. 2001).


               8. To establish court error in the denial of a motion for change of
               venue based on undue pretrial publicity, a [defendant must
               demonstrate] (1) prejudicial pretrial publicity and (2) the inability
               of the jurors to render an impartial verdict. Wentz v. State, 766

       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017   Page 8 of 22
               N.E.2d 351, 358, (Ind. 2002), citing Specht v. State, 734 N.E.2d
               239, 241 (Ind. 2000). In this case, there was prejudicial pretrial
               publicity. However, the potential jurors were questioned about
               their exposure to that publicity, and their ability to reach an
               impartial verdict in spite of the publicity. Based upon the
               answers given by the jurors during voir dire, it is unlikely that a
               motion for change of venue would have been granted.
               Additionally, there has been no showing that the jury’s verdict
               was tainted by the publicity. Juror #573 was permitted to wait in
               the auditorium with other potential jurors after being
               admonished by the court not to discuss the publicity with anyone
               else. No evidence was presented that established that the court’s
               admonishment was disregarded by the juror, or that Juror 573
               tainted any of the other jurors.


               9. Of equal importance, regarding counsel’s effectiveness on this
               issue, Mr. Stigler testified that he did not at the time of either the
               trial or the post-conviction relief hearing consider the amount of
               pretrial publicity to be an issue. Therefore, it was a strategic
               decision, and one supported by the record.


       Appellant’s Appendix Volume 2 at 160-163.


[15]   Generally, a defendant is entitled to a change of venue upon a showing that

       jurors are unable to disregard preconceived notions of guilt and render a verdict

       based on the evidence. State v. Moore, 678 N.E.2d 1258, 1262 (Ind. 1997), reh’g

       denied, cert. denied, 523 U.S. 1079, 118 S. Ct. 1528 (1998). Disposing of a

       motion for a change is within the sound discretion of the trial court. Id. The

       decision to seek a change of venue is generally a matter of trial strategy that we

       will not second-guess on collateral attack. Id. In evaluating claims of

       ineffective assistance for failure to seek a change of venue, decisions of the


       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017   Page 9 of 22
       Indiana Supreme Court have found counsel’s handling of a case competent

       where there was insufficient evidence to conclude the defendant could not have

       received a fair trial in the county in which the case was tried. Id. The

       reasonableness of counsel’s decision not to seek a change of venue is assessed

       based on whether there was such prejudice against the defendant that there is a

       reasonable probability the motion would have been granted by a trial judge

       acting according to law. Id. “Even where this showing is made, reasonable

       trial strategy might have dictated keeping the case in the same venue for

       different reasons, and there no ineffective assistance arises.” Id. at 1262-1263.


[16]   When asked if he was aware that there was a pretrial publicity issue at that

       particular time, Attorney Stigler answered: “I didn’t consider it to be a pretrial

       publicity issue, so the answer is no.” Post-Conviction Transcript at 6. He

       testified that he did not remember Washington ever asking for a change of

       venue. He also testified: “With regard to him asking me for a change of venue,

       if the discussion was had, I didn’t feel that there was a need for one.” Id. at 13.

       After showing Attorney Stigler certain articles, Washington asked Attorney

       Stigler if he felt that a change of venue should have been actually asked for at

       that time, and he answered: “No.” Id.


[17]   Washington cites certain portions of the record to indicate that several

       prospective jurors admitted to reading about him or seeing news coverage on

       television and that it would be difficult to separate the evidence from what they

       had already heard, seen, or read. However, a review of the record reveals that

       these jurors were excused. To the extent Washington mentions Juror No. 573

       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017   Page 10 of 22
       and Juror No. 624, we observe that during jury selection, the court told Juror

       No. 573:


               Now, number 573, ma’am, you are – we are going to send you
               back to the auditorium for now. I’m instructing you that under
               no circumstances should you discuss anything that we discussed
               with you at the bench or anything that you may know or think
               you know about this case with the jurors that you’re going to be
               seated with.


       Trial Transcript at 50. Juror No. 573 replied: “Okay.” Id.


[18]   Later, the court took a recess for lunch, and then stated:


               The jurors thus far have been polled as to any knowledge they
               may have of this case by way of pre-trial publicity. Those who
               said this they did have some knowledge of it were brought up to
               the bench and questioned by the attorneys and by the Court. I
               believe there was only one who had indicated that she had some
               prior knowledge of the case that was returned to the jury pool.
               All the others were excused. That juror was number 573 . . . .
               All the other potential jurors who indicated that they had some
               prior knowledge of the case have been excused for cause. I
               intend to poll the jurors one more time when we bring them in
               just to make certain that we have a pool that has absolutely no
               knowledge of the case except for that one juror. She indicated
               that she felt that she could be fair and impartial in the case.


       Id. at 124. The court then asked the potential jurors to raise their hands if they

       thought they had any knowledge of the case by way of any pretrial publicity

       and two jurors raised their hands. One of the jurors was Juror No. 624 who

       stated that he reads a lot of newspaper articles, referred to two articles, and


       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017   Page 11 of 22
stated that he did not know if they related to the case or not. Juror No. 624

indicated that no one approached him during the break. When asked by

Washington’s counsel if he could evaluate the evidence presented “as opposed

to the newspapers,” Juror No. 624 stated:


        I don’t take everything for gospel from the newspaper, I believe
        in the principle, innocent until proven guilty, that’s basic
        fundamental law that I firmly believe in because I know many
        times the fact that the defendant is in this Court does not in any
        way indicate he is guilty. That’s what I felt all my life, so that’s
        an honest answer to that question.


Id. at 130. When asked by the court if the two newspaper articles turned out to

have something to do with Washington if that would prejudice him in any way

in terms of being able to be fair and impartial, he answered: “None

whatsoever.” Id. Juror No. 620 was the other juror who raised his hand, and

he appeared to be removed for cause.2 We cannot say that Washington has

demonstrated that his trial counsel was deficient or that he was prejudiced.3


B. Investigation




2
 The trial court indicated that it was bothered by Juror No. 620’s response, Washington’s counsel stated in
part that “we already know we have a for cause, Judge,” the court stated, “I think that’s clear,” and the
prosecutor stated, “I agree.” Trial Transcript at 136-137.
3
 At some point, the court reporter was excused and the jury selection process was completed. The post-
conviction court concluded that Washington waived the issue of whether his trial counsel failed to record
voir dire. Washington does not raise the failure to record voir dire as an issue on appeal.

Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017             Page 12 of 22
[19]   Washington argues that his trial counsel failed to conduct a thorough

       investigation regarding his mental illness, school, medical history, or military

       service. He alleges that his trial counsel failed to interview any members of his

       family. He also argues that his trial counsel failed to seek a second professional

       opinion with respect to the reports generated by DNA Supervisor, Lisa Black.

       The State argues that Washington’s claim fails under the prejudice prong

       because he did not present any evidence suggesting additional investigation

       would have supported a defense at trial or reduce his exposure at sentencing.


[20]   The post-conviction court’s order found:

               8. . . . . Mr. Stigler also testified that he did not believe that a
               DNA expert was necessary because the error made by the State’s
               DNA expert – first referencing the evidence as blood, then semen
               – did not require expertise to bring to the jury’s attention. When
               questioned about referencing “mental illness” during the
               sentencing, Mr. Stigler stated that while he did not raise insanity
               as a defense, that you can have a mitigator like mental illness that
               does not rise to the level of a defense.


       Appellant’s Appendix Volume 2 at 161. The post-conviction court concluded:

               10. [Washington] makes numerous conclusory statements about
               mental or medical health evidence that could have been
               presented had Mr. Stigler investigated further. However, even
               assuming there was evidence to substantiate those claims,
               nothing suggests that it would have risen to a defense at trial, nor
               that it would have reduced [Washington’s] exposure at
               sentencing. Also, Mr. Stigler testified that the State’s DNA
               expert’s error identified by [Washington] was not one that
               required a defense expert’s testimony to put that before the jury.


       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017   Page 13 of 22
               As such, Mr. Stigler’s decision not to call a DNA expert was a
               strategic one.


       Id. at 163-164.


[21]   With respect to an expert witness, we observe that Washington asked Attorney

       Stigler: “Did you at any time feel like an expert witness should have been called

       on my behalf who could have actually gave us a second opinion about the

       DNA results considering that a mistake was made the first time?” Post-

       Conviction Transcript at 14-15. Attorney Stigler answered:


               Mr. Washington, whenever our – I get findings from the Indiana
               State Lab, whether those findings are DNA or fingerprints or
               ballistics, I will look over those and I will see if it makes a
               difference. Now, with respect to your contention that Lisa Black
               in saying that as you stated earlier that there was blood on the
               dress that it wasn’t blood, that it was semen on the dress, that
               does not require any – any expert. So if I thought that there was
               a need for an expert, then I would have asked the chief public
               defender for the Lake County Public Defender’s Office to appoint
               one and to hire one, and I didn’t feel that such was needed.


       Id. at 15. When asked if he thought it would have been a good idea to actually

       request a second opinion, Attorney Stigler stated: “Given what you are saying

       and what I can remember, no.” Id. at 16. Washington did not present evidence

       regarding what a second professional opinion would have stated.


[22]   With respect to any mental illness, Attorney Stigler testified:

               Was there an – was there a request to have you evaluated for
               either competency or insanity? No. And I’m not – if the – if we

       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017   Page 14 of 22
               had the discussion, it would have been my belief that you would
               have negated it or that you did negate it; and as such, there was
               no – given that you were competent, it would not have been
               possible to proceed with an insanity defense.


       Id. at 18.


[23]   Washington did not present any evidence regarding his mental illness, school,

       medical history, or military service. He did not present evidence with respect to

       what interviews with members of his family would have revealed. We cannot

       say that reversal is warranted on these bases.


       C. Communication of Plea


[24]   Washington argues that Attorney Stigler was ineffective because he failed to

       communicate a plea offer that had been presented when Washington was

       represented by another defense attorney. The State argues that Washington’s

       statements at the post-conviction hearing appear to contradict his claim on

       appeal, that he presented no evidence indicating that he was not apprised of

       negotiations prior to Attorney Stigler filing his appearance, and that he

       presented no evidence showing that a plea offer of twenty years was offered,

       available, and would have been accepted by him.


[25]   The post-conviction court’s order concluded:


               11. The final issue of ineffective assistance of trial counsel
               involves an alleged failure to communicate a plea offer from the
               State. Although no evidence was presented in this regard, it
               would appear that an offer of a sentence of twenty (20) years in

       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017   Page 15 of 22
               exchange for a guilty plea may be been [sic] communicated to
               Attorney Graddick, who represented [Washington] well before
               Mr. Stigler was appointed. There was no evidence presented as
               to whether that offer was actually extended by the State, whether
               Mr. Graddick did or did not communicate that offer to
               [Washington], or [Washington’s] response. What was presented
               during questioning of Mr. Stigler was a memo dated the day
               before the final day of trial, wherein Mr. Stigler notes, “I think
               you should plead”. When questioned about this, Mr. Stigler
               stated that it was in the midst of trial; things were going badly,
               and that he was telling [Washington] that he should plead
               straight up to the charges. [Washington] has failed to sustain his
               burden of proving that Mr. Stigler failed to communicate a plea
               offer to him.


       Appellant’s Appendix Volume 2 at 164.


[26]   When asked if he recalled failing to make Washington aware of an offer of a

       plea agreement, Attorney Stigler answered: “Mr. Washington, I know how to

       do my job, and I know that the decision as to whether or not a plea agreement

       is accepted is my client’s, and that is something that I would not do.” Post-

       Conviction Transcript at 24. Attorney Stigler testified that he would have

       examined the case for the procedural posture so he would have known about

       the negotiations and that if there had been an offer made and that “it had been

       rejected which is why the case was still going on and then eventually it gets to

       me four years later.” Id. at 29. He also testified: “I would have asked the state

       is this offer still open; and if the state had said yes, it’s open – still open, I would

       have given Mr. Washington that information.” Id. On cross-examination,




       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017   Page 16 of 22
       when asked if he considered plea agreements offered four years prior to still be

       valid four years later, Attorney Stigler answered:


               If there’s nothing in the file that says that it was withdrawn or
               rejected, then, yes. What I do is to – is to then ask the prosecutor
               handling the case is this a viable plea; and if I’m told yes, then I’ll
               go to my client. If I’m told no, then it’s the next question is is
               there another offer.


       Id. at 40-41.


[27]   As pointed out by the State, Washington appeared to refer to a conversation he

       had with Attorney Stigler during his questioning of Attorney Stigler.

       Specifically, Washington stated: “Well, just based on a conversation that we

       actually had before trial, I was informed that a 20-year plea was offered, 20 do

       10, for a Class A felony of rape, and this information was actually relayed to me

       by Mr. Stigler.” Id. at 29. When asked by the court what was his question,

       Washington stated:

               That was my question. Just to see if he could recollect that that
               plea was actually offered. Now, during the course of that, Mr.
               Stigler informed me that the judge wouldn’t accept the plea and
               that wasn’t his call to make. It was actually the judge’s call to see
               whether or not a plea would be accepted. So in that instance, I
               was misinformed.


       Id. at 30. Attorney Stigler then indicated that he did not recall having a

       conversation where he indicated that the judge would not accept a plea.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017   Page 17 of 22
[28]   We also observe that other attorneys represented Washington prior to the date

       Attorney Stigler filed his appearance in 2005 and that Washington did not

       present testimony from these other attorneys. “Where trial counsel is not

       presented in support, the post-conviction court may infer that trial counsel

       would not have corroborated appellant’s allegations.” Dickson v. State, 533

       N.E.2d 586, 589 (Ind. 1989). Because Washington did not call his other trial

       counsel as witnesses at the post-conviction hearing, the court was entitled to

       infer that they would not have corroborated his allegations. Under the

       circumstances, we cannot say that reversal is warranted on this basis.


       D. Criminal Rule 4(C)


[29]   Washington argues that his appellate counsel was ineffective for failing to raise

       the issue of a violation of Ind. Criminal Rule 4(C). He asserts that the 1,340

       days between the date he was charged on July 13, 2001, and the date his trial

       began on March 14, 2005, violated his right to a speedy trial and cites the Sixth

       Amendment to the United States Constitution and Article 1, Section 12 of the

       Indiana Constitution.


[30]   The State argues Washington has not shown that an appellate claim for

       discharge under Criminal Rule 4(C) either had a reasonable probability of

       succeeding or would have been clearly stronger than double jeopardy,

       sufficiency, and sentencing issues raised. The State argues that Washington is

       attempting to improperly transform his Criminal Rule 4(C) claim, which was

       preserved by his trial counsel and presented as a claim of ineffective appellate


       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017   Page 18 of 22
       counsel in his petition, into a constitutional speedy trial claim. The State also

       contends that Washington presents no cogent argument or authority showing a

       violation of Criminal Rule 4(C)’s one-year time limitation.


[31]   The post-conviction court’s order states:


               13. Under Ind. R. Crim. P. 4(C) a defendant may not be held to
               answer a criminal charge for greater than one year unless the
               delay is caused by the defendant, emergency, or court
               congestion. However, the Supreme Court has stated, “The
               defendant’s failure to object timely will be deemed acquiescence
               in the setting of that date.” Vermillion v. State, 719 N.E.2d 1201,
               1204 (Ind. 1999), reh’g denied. “Although a defendant is not
               obliged under this rule to push the matter to trial, a defendant
               whose trial is set outside the one-year period must object to the
               setting at the earliest opportunity or the right to discharge under
               the rule is waived.” Brown v. State, 725 N.E.2d 823, 825 (Ind.
               2000).


               14. Prior to jury selection in this case, there was extensive
               argument about this issue, and the State pointed out instances
               where the delays were due to a congested docket, or were
               requested by [Washington]. The State also pointed out that
               when continuances were requested by the State, there was no
               objection lodged by the defense. Additionally, the court denied
               the defense’s motion, but granted leave for Mr. Stigler to file a
               motion to reconsider, which he never did. [Record of the
               Proceedings, pp. 8 – 13.]


               15. During the hearing on the petition for post-conviction relief,
               Mr. Vanes testified that he did not recall coming across a
               Criminal Rule 4 issue, and did not recall [Washington]
               mentioning the issue in correspondence. However, the Record of
               the Proceedings must clearly establish that there was a Criminal

       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017   Page 19 of 22
               Rule 4 issue, and the record in this case does not do so. In fact,
               this record suggests that there was not an issue based upon the
               arguments of the State, and more importantly, based upon the
               fact that the defense was given an opportunity to further explore
               the issue and request reconsideration, but did not make that
               request.


               16. Therefore, [Washington] has failed to prove that he received
               ineffective assistance of either trial or appellate counsel.


       Appellant’s Appendix Volume 2 at 164-165.


[32]   To the extent Washington attempts to argue that his appellate counsel failed to

       raise the issue of his speedy trial rights under the Sixth Amendment of the

       United States Constitution or Article 1, Section 12 of the Indiana Constitution,

       we observe that the Indiana Supreme Court has stated that:

               Although “Indiana Criminal Rule 4 generally implements the
               constitutional right of a criminal defendant to a speedy trial,
               thereby establishing time limits and providing for discharge in the
               event that limits are exceeded,” Bridwell v. State, 659 N.E.2d 552,
               553 (Ind. 1995), our review of Rule 4 challenges is “separate and
               distinct” from our review of claimed violations of the speedy trial
               rights secured by the Sixth Amendment of the U.S. Constitution
               and Article 1, Section 12 of the Indiana Constitution.


       Logan v. State, 16 N.E.3d 953, 958 (Ind. 2014) (footnote omitted).


[33]   In his petition, Washington alleged that his appellate counsel was ineffective for

       failing to raise the issue of a Criminal Rule 4(C) violation, but he did not

       mention his speedy trial rights under the Sixth Amendment of the United States


       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017   Page 20 of 22
       Constitution or Article 1, Section 12 of the Indiana Constitution. Accordingly,

       Washington waived this issue. See Allen v. State, 749 N.E.2d 1158, 1171 (Ind.

       2001) (holding that three claims were unavailable where petitioner did not raise

       them in his petition or in any of his three amended petitions),4 reh’g denied, cert.

       denied, 535 U.S. 1061, 122 S. Ct. 1925 (2002); Ind. Post-Conviction Rule 1 (“All

       grounds for relief available to a petitioner under this rule must be raised in his

       original petition.”). Thus, we turn to Ind. Criminal Rule 4(C).


[34]   Ind. Criminal Rule 4(C) provides:

                No person shall be held on recognizance or otherwise to answer
                a criminal charge for a period in aggregate embracing more than
                one year from the date the criminal charge against such
                defendant is filed, or from the date of his arrest on such charge,
                whichever is later; except where a continuance was had on his
                motion, or the delay was caused by his act, or where there was
                not sufficient time to try him during such period because of
                congestion of the court calendar; provided, however, that in the
                last-mentioned circumstance, the prosecuting attorney shall file a
                timely motion for continuance as under subdivision (A) of this
                rule. Provided further, that a trial court may take note of
                congestion or an emergency without the necessity of a motion,
                and upon so finding may order a continuance. Any continuance
                granted due to a congested calendar or emergency shall be
                reduced to an order, which order shall also set the case for trial




       4
         The Court noted: “Allen very briefly mentions the first two of these issues in his petition. He makes a brief
       reference to the third of these issues – which was not mentioned at all in the petition – in his proposed
       findings of fact and conclusions of law. The first two issues are not mentioned in those proposed findings
       and conclusions.” Allen, 749 N.E.2d at 1171 n.17.

       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017               Page 21 of 22
               within a reasonable time. Any defendant so held shall, on
               motion, be discharged.


[35]   “The rule places an affirmative duty on the State to bring a defendant to trial

       within one year of being charged or arrested, but allows for extensions of that

       time for various reasons.” Cook v. State, 810 N.E.2d 1064, 1065 (Ind. 2004).

       The determination of whether a particular delay in bringing a defendant to trial

       violates the speedy trial guarantee depends on the specific circumstances of the

       case. Payton v. State, 905 N.E.2d 508, 511 (Ind. Ct. App. 2009), trans. denied.


[36]   The only calculation in Washington’s brief is the time between the date he was

       charged and the date on which his trial began. He does not address any impact

       of the numerous continuances, his failure to object to the rescheduling of the

       trial date on multiple occasions, or the withdrawal of his trial counsel on the

       analysis under Rule 4(C). We cannot say that Washington developed a cogent

       argument, and we conclude that he waived his argument regarding Rule 4(C).


                                                    Conclusion

[37]   For the foregoing reasons, we affirm the post-conviction court’s denial of

       Washington’s petition for post-conviction relief.


[38]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017   Page 22 of 22
