      MEMORANDUM DECISION
                                                                                FILED
      Pursuant to Ind. Appellate Rule 65(D),                               May 23 2018, 8:31 am

      this Memorandum Decision shall not be                                     CLERK
                                                                            Indiana Supreme Court
      regarded as precedent or cited before any                                Court of Appeals
                                                                                 and Tax Court
      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Lawrence Nunley                                          Curtis T. Hill, Jr.
      Carlisle, Indiana                                        Attorney General of Indiana
                                                               Ian McLean
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Lawrence Nunley,                                         May 23, 2018
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               31A01-1703-PC-547
              v.                                               Appeal from the Harrison Superior
                                                               Court
      State of Indiana,                                        The Honorable Joseph L.
      Appellee-Respondent.                                     Claypool, Judge
                                                               Trial Court Cause No.
                                                               31D01-1009-PC-011



      Mathias, Judge.

[1]   Lawrence Nunley (“Nunley”) appeals pro se the Harrison Superior Court’s

      denial of his petition for post-conviction relief. Nunley claims that post-


      Court of Appeals of Indiana | Memorandum Decision 31A01-1703-PC-547 | May 23, 2018            Page 1 of 20
      conviction relief is warranted because both his trial and appellate counsel were

      ineffective.


[2]   We affirm.


                                 Facts and Procedural History
[3]   The facts surrounding Nunley’s convictions were described in Nunley v. State,

      916 N.E.2d 712 (Ind. Ct. App. 2009), trans. denied, and are reproduced here:


              Nunley lived with his teenage son and his son’s girlfriend, K.S.
              K.S. sometimes babysat six-year-old A.Y. A.Y.’s mother, T.C.,
              testified A.Y. “loved [K.S.] to death.” On April 13, 2007, A.Y.
              asked to spend the night at Nunley’s residence. When T.C.
              dropped off A.Y., Nunley told her K.S. was on the way there.
              T.C. was under the impression that K.S. would be watching A.Y.
              According to A.Y., K.S. and her boyfriend were there for only a
              brief time that night.

              Sometime during the evening, Nunley called A.Y. back to his
              bedroom and showed her a pornographic video. A.Y. was
              wearing a tee shirt and panties. He took off her panties and licked
              her vagina. He also made her suck on his penis.

              The next day, T.C. and R.C. picked up A.Y. After they had been
              in the car for a few minutes, A.Y. told them she and Nunley had
              a secret. A.Y. would not say what it was, so T.C. tried to trick
              her into telling by saying, “That’s okay. I know what the secret
              is.” Then A.Y. wanted to tell them, but she did not want to say it
              out loud, so her parents gave her a pencil and an envelope to
              write on. Her note indicated she “was sucking his weenie-bob
              and he was licking my pee-pee.”

              After reading the note, T.C. turned the vehicle around and went
              back to Nunley’s residence. She took a bat and started hitting
              Nunley’s motorcycle and truck so he would come outside.

      Court of Appeals of Indiana | Memorandum Decision 31A01-1703-PC-547 | May 23, 2018   Page 2 of 20
        Nunley came to the door. T.C. yelled at him and accused him of
        molesting A.Y. Nunley denied her accusations.

        T.C., R.C., and A.Y. then went to the Washington County
        Police Department to make a report. They spoke to State
        Trooper Kevin Bowling. Trooper Bowling first attempted to
        interview A.Y. alone, but that did not work well, so T.C. stayed
        in the room with her while A.Y. answered questions. A.Y. said
        Nunley made her watch a “bad movie.” Trooper Bowling asked
        her what she meant by that, and she said, a “naked movie.” T.C.
        showed him the note A.Y. had written. T.C. believed she left the
        note with Trooper Bowling, but Trooper Bowling had no record
        or recollection of what happened with the note. Trooper Bowling
        referred the case to the Department of Child Services.

        Authorities tried to arrange a forensic interview of A.Y., but T.C.
        did not immediately follow through. The interview was finally
        conducted on April 18, 2008, a little over a year after A.Y. was
        molested.

        Donna Lloyd Black conducted the forensic interview of A.Y. at
        Comfort House. A.Y.’s interview was videotaped. Comfort
        House has an observation room for representatives from the
        prosecutor’s office, law enforcement, and the Department of
        Child Services. Black can communicate with them by two-way
        radio, but a child being interviewed cannot see or hear the people
        in the observation room. Detective William Wibbels was in the
        observation room during A.Y.’s interview.

        Nunley was charged with four counts of Class A felony child
        molesting: Count 1 alleged he touched A.Y.’s vagina with his
        mouth, Count 2 alleged he made A.Y. put her mouth on his
        penis, Count 3 alleged he put his hand in A.Y.'s vagina, and
        Count 4 alleged he touched A.Y.’s vagina with his penis. He was
        also charged with one count of Class D felony dissemination of
        matter harmful to minors, which alleged he showed A.Y. a
        pornographic movie.


Court of Appeals of Indiana | Memorandum Decision 31A01-1703-PC-547 | May 23, 2018   Page 3 of 20
        At the time of trial, A.Y. was eight years old. A.Y. started crying
        at several points during her testimony and needed multiple
        breaks. A.Y. stated it was hard to say what had happened and
        that she could only write it. The prosecutor then had her write
        down what happened and read it to the jury. She testified she
        saw Nunley’s penis when he made her suck on it and he licked
        her “pee pee.” A.Y. testified he forced her to do these things by
        threatening to hurt her parents or call the police.

        T.C. testified as to why she did not immediately bring A.Y. for a
        forensic interview: “I had second thoughts ... just because of the
        fact of putting my daughter through this. And not only that ...
        there's a side of you that thinks maybe if you just don't
        acknowledge it, that it'll go away.” A juror asked, “[W]hat made
        you continue to think about it? What, was it brought up by
        [A.Y.]?” T.C. responded, “No, it wasn't brought up by [A.Y.]. It
        was brought up by other people. Uhm, there were other
        allegations that I had heard about.” Nunley objected and moved
        for a mistrial, because T.C. had been instructed not to refer to
        any other allegations against him. The trial court denied the
        motion for mistrial because T.C. did not specify the nature of the
        allegations, and it instructed the jury to disregard T.C.'s answer.

        The videotape was played for the jury. The video was difficult to
        understand in some places, but Black testified she was able to
        understand what A.Y. was saying to her during the interview.
        The prosecutor therefore asked Black to recount how A.Y. had
        said Nunley had touched her. Black testified A.Y. said Nunley
        “touched her on her pee-pee with his weenie-bob, his hand and
        his tongue,” that he “made her put his weenie-bob in her mouth
        and suck it,” and that he made her watch a video with naked
        people in it. Detective Wibbels also testified concerning A.Y.'s
        allegations made during the interview.

        Nunley testified in his own behalf. He claimed T.C. called and
        asked if he could watch A.Y. while she went to Corydon. He
        asserted T.C. did not bring any extra clothes for A.Y., and he did
        not think A.Y. would be spending the night. He claimed A.Y. fell
Court of Appeals of Indiana | Memorandum Decision 31A01-1703-PC-547 | May 23, 2018   Page 4 of 20
              asleep on the couch soon after arriving, and then his friend,
              Michelle Cayton, came over to Nunley's residence to spend the
              night, leaving shortly before T.C. picked up A.Y. Nunley
              claimed he was in a relationship with T.C., and when T.C. came
              to pick up A.Y., she asked to move in with him. He would not let
              her, and she was angry when she left. Although Nunley
              voluntarily spoke with the police, he never told them Cayton had
              been at his residence on the night in question.

              The jury found Nunley guilty as charged.

      Id. at 714–16 (record citations omitted). Nunley was ordered to serve an

      aggregate sentence of seventy-six years and four months.


[4]   On appeal, our court held that the trial court committed reversible error by

      admitting A.Y.’s hearsay statements made during her interview at the Comfort

      House approximately one year after the molestation occurred. Because the

      unreliable hearsay statements were the only evidence supporting Counts 3 and

      4, our court reversed Nunley’s convictions on those counts. As a result,

      Nunley’s aggregate sentence was reduced by four years and eight months. We

      affirmed the trial court in all other respects.


[5]   On September 24, 2010, Nunley filed a pro se petition for post-conviction relief,

      and he amended his petition on January 14, 2016. The post-conviction court

      held an evidentiary hearing on January 12, 2017. The court denied Nunley’s

      petition after concluding that his trial counsel’s and appellate counsel’s

      performance was not deficient.


[6]   Nunley now appeals. Additional facts will be provided as necessary.



      Court of Appeals of Indiana | Memorandum Decision 31A01-1703-PC-547 | May 23, 2018   Page 5 of 20
                                            Standard of Review
[7]   Nunley appeals the post-conviction court's denial of his petition for post-

      conviction relief.1


               The petitioner in a post-conviction proceeding bears the burden
               of establishing grounds for relief by a preponderance of the
               evidence. When appealing the denial of post-conviction relief, the
               petitioner stands in the position of one appealing from a negative
               judgment. To prevail on appeal from the denial of post-
               conviction relief, a petitioner must show that the evidence as a
               whole leads unerringly and unmistakably to a conclusion
               opposite that reached by the post-conviction court. Further, the
               post-conviction court in this case made findings of fact and
               conclusions of law in accordance with Indiana Post–Conviction
               Rule 1(6). Although we do not defer to the post-conviction
               court's legal conclusions, [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.


      Campbell v. State, 19 N.E.3d 271, 273–74 (Ind. 2014) (citations and quotations

      omitted).


[8]   Moreover, post-conviction proceedings are not “super appeals” through which

      convicted persons can raise issues they failed to raise at trial or on direct appeal.

      McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002). Post-conviction proceedings




      1
        Nunley’s claim that the State abandoned its right to defend against Nunley’s arguments raised in his
      petition for post-conviction relief because the State failed to present evidence or argument at the hearing on
      his post-conviction relief lacks merit. The State filed an answer to Nunley’s petition, asserted denials of his
      claims, and actively participated at the hearing.

      Court of Appeals of Indiana | Memorandum Decision 31A01-1703-PC-547 | May 23, 2018                   Page 6 of 20
       instead afford petitioners a limited opportunity to raise issues that were

       unavailable or unknown at trial and on direct appeal. Davidson v. State, 763

       N.E.2d 441, 443 (Ind. 2002).


                          Ineffective Assistance of Trial Counsel
[9]    First, we address Nunley’s claim that his trial counsel was ineffective. A claim

       of ineffective assistance of trial counsel requires a showing that: (1) Nunley’s

       trial counsel’s performance was deficient by falling below an objective standard

       of reasonableness; and (2) that the deficient performance prejudiced Nunley

       such that “there is a reasonable probability that, but for counsel’s

       unprofessional errors, the result of the proceeding would have been different.”

       Strickland v. Washington, 466 U.S. 668, 669 (1984). Failure to satisfy either of the

       two elements will cause the claim to fail. French v. State, 778 N.E.2d 816, 824

       (Ind. 2002). And “[i]solated mistakes, poor strategy, or bad tactics do not

       necessarily amount to ineffective assistance of counsel.” Herrera v. State, 679

       N.E.2d 1322, 1326 (Ind. 1997) (citations omitted).


[10]   If it is easier to dispose of an ineffectiveness claim on the lack of prejudice, then

       this is the course we should follow. Trujillo v. State, 962 N.E.2d 110, 114 (Ind.

       Ct. App. 2011). Prejudice occurs when a reasonable probability exists that, but

       for counsel’s errors, the result of the proceeding would have been different.

       Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013).


[11]   Nunley claims that his trial counsel was ineffective for: (1) failing to use A.Y.’s

       deposition testimony to impeach her at trial; (2) failing to object when the trial

       Court of Appeals of Indiana | Memorandum Decision 31A01-1703-PC-547 | May 23, 2018   Page 7 of 20
       court allowed A.Y. to write down her trial testimony and failing to object when

       the trial court admitted the written testimony into evidence; (3) failing to object

       to the admission of the State’s Exhibit 2, a DVD entitled “Sex Ed Tutor”; (4)

       failing to object when the trial court allowed A.Y. to have lunch with her

       parents, who had not yet testified, in violation of the separation of witnesses

       order; and (5) failing to object to testimony vouching for A.Y.’s credibility.


[12]   As we address Nunley’s claims, we do so under the principle that

       “[r]epresentation is constitutionally ineffective only if the proper functioning of

       the adversarial process was so undermined that the defendant was denied a fair

       trial.” Woodson v. State, 961 N.E.2d 1035, 1042 (Ind. Ct. App. 2012), trans.

       denied. And we do not “second-guess” strategic decisions requiring reasonable

       professional judgment even if the strategy in hindsight did not best serve the

       defendant’s interests. State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997).


       A. A.Y.’s Deposition Testimony

[13]   First, we observe that the method used to impeach a witness is a tactical

       decision and a matter of trial strategy that does not amount to ineffective

       assistance. See Kubsch v. State, 934 N.E.2d 1138, 1151 (Ind. 2010); see also

       Waldon v. State, 684 N.E.2d 206, 208 (Ind. Ct. App. 1997) (stating that the

       nature and extent of cross-examining a witness is a matter of trial strategy that

       is left to trial counsel), trans. denied.


[14]   Nunley’s defense at trial was that A.Y. fabricated her claim that Nunley

       molested her. A.Y. was six years old when Nunley molested her in April 2008,

       Court of Appeals of Indiana | Memorandum Decision 31A01-1703-PC-547 | May 23, 2018   Page 8 of 20
       and she gave her deposition over a year later when she was seven. Nunley’s

       trial counsel made strategic choices of how best to cast doubt on A.Y.’s trial

       testimony. Counsel had to tread carefully given A.Y.’s young age and her

       emotional state at trial. A.Y. cried during her direct examination and did not

       want to discuss the molestation because it was “too scary.” Trial Tr. p. 438.

       A.Y. was similarly reluctant to answer questions about the molestation during

       her deposition and stated that she did not want to remember it. For all of these

       reasons, we conclude that Nunley’s trial counsel was not ineffective for failing

       to use A.Y.’s deposition testimony to impeach her at trial.


       B. A.Y.’s Written Trial Testimony

[15]   Nunley also argues that his trial counsel should have objected when the trial

       court allowed A.Y. to write down her trial testimony and when those

       documents were admitted into evidence and given to the jury. Nunley cites to

       Shaffer v. State, 674 N.E.2d 1 (Ind. Ct. App. 1996), trans. denied, in which our

       court stated that “Indiana law is distinctly biased against trial procedures which

       tend to emphasize the testimony of any single witness.” Id. at 5 (citation and

       quotation omitted). But our court also observed that for a child, testifying in

       court can be a traumatic experience, and therefore “trial courts have permitted

       children to testify under special conditions despite the possibility that it would

       emphasize their testimony.” Id. “As a result, the manner in which a party is

       entitled to question a witness of tender years, especially in embarrassing

       situations, is left largely to the discretion of the trial court.” Id. (citing Jackson v.

       State, 535 N.E.2d 1173, 1174 (Ind. 1989)).

       Court of Appeals of Indiana | Memorandum Decision 31A01-1703-PC-547 | May 23, 2018   Page 9 of 20
[16]   At trial, A.Y. was distressed and cried when she was asked to testify about the

       molestation. She was afraid to answer the prosecutor’s questions because of the

       number of people in the courtroom. Trial Tr. pp. 438–39. She asked if she could

       write down her answers to the State’s questions, and the trial court allowed her

       to do so. In response to questions concerning where she and Nunley were when

       she saw his “weenie bob” and “what happened that night,” A.Y. wrote on one

       piece of paper, “I was on the bed and Ed was to” and “He made me suck on his

       weeny bob.”2 Trial Tr. pp. 441–42; Trial Ex. Vol., Joint Ex. 1. On another piece

       of paper she wrote, “He made me suck on his weedy bob.” Trial Ex. Vol., Joint

       Ex. 2. The trial court sua sponte admitted the two written statements into

       evidence to “identify it as the pieces of paper the witness . . . wrote on, which is

       in effect . . . part of her testimony.” Trial Tr. p. 445. A.Y. later read her

       statement on Joint Exhibit 2 to the jury. Trial Tr. p. 450.


[17]   Nunley’s counsel was not ineffective for failing to object when the trial court

       allowed a distraught eight-year-old child to write her testimony down on a piece

       of paper. Moreover, Nunley has not established prejudice in the trial court’s

       decision to admit the two written statements into evidence. A.Y.’s written

       statements were consistent with what she had reported to her parents and law

       enforcement officers, which evidence was also admitted at trial.




       2
           A.Y. testified that she called male genitals “weenie-bobs.” Trial Tr. p. 425.


       Court of Appeals of Indiana | Memorandum Decision 31A01-1703-PC-547 | May 23, 2018   Page 10 of 20
       C. Admission of the DVD

[18]   Nunley claims that his trial counsel was ineffective for failing to object to the

       admission of a DVD entitled “Sex Ed Tutor.” Nunley claims that the DVD was

       not properly authenticated because A.Y. did not view the contents of the DVD

       at trial and could not identify the title of the DVD that Nunley showed to her.

       Further, Nunley argues that the DVD was the only “tangible evidence” to

       support his conviction on Count V, Class D felony dissemination of matter

       harmful to minors.


[19]   Indiana Evidence Rule 901(a) provides that “[t]o satisfy the requirement of

       authenticating or identifying an item of evidence, the proponent must produce

       evidence sufficient to support a finding that the item is what the proponent

       claims it is.” Authenticity may be established, among other methods, by

       “[t]estimony of a [w]itness with [k]nowledge. . . that an item is what it is

       claimed to be[.]” Ind. Evid. R. 901(b)(1).


[20]   At trial, A.Y. testified that Nunley showed her a movie with naked boys and

       girls “doing bad stuff to each other.” Trial Tr. p. 431. She identified State’s Ex.

       2 as the “DVD that has the bad stuff on it,” Id. at 432, and that it was the DVD

       that Nunley had her watch in his bedroom. A.Y. testified that she saw the DVD

       before Nunley put it into the DVD player, and she identified it as the same

       DVD at trial. Id. at 469. Detective William Wibbels, who searched Nunley’s

       home, testified that he found the DVD in Nunley’s apartment. It was then

       admitted into evidence. Id. at 661–62. Because A.Y. testified that the DVD was

       the same one Nunley made her watch and she recognized it from seeing it in his
       Court of Appeals of Indiana | Memorandum Decision 31A01-1703-PC-547 | May 23, 2018   Page 11 of 20
       apartment before he put it in the DVD player, Nunley’s trial counsel was not

       ineffective for failing to object to the admission of the DVD.


       D. Separation of Witnesses

[21]   The purpose of a separation of witnesses order is to prevent the testimony of

       one witness from influencing that of another. Smiley v. State, 649 N.E.2d 697,

       699 (Ind. Ct. App. 1995), trans. denied. Nunley claims the separation of

       witnesses order was violated because during trial and before A.Y. had finished

       testifying, the trial court allowed A.Y. to have lunch with her parents, who

       were also on the witness list. The trial court also ordered the prosecuting

       attorney to accompany them to lunch. Nunley argues that before lunch, A.Y.

       refused to answer several questions, but after lunch she was willing to answer

       those same questions. Nunley claims that A.Y. was “provided with appropriate

       answers during the recess.” Appellant’s Br. at 26.


[22]   Much of Nunley’s argument amounts to pure speculation. And the trial court

       sent the deputy prosecutor to lunch with A.Y. and her parents to ensure that the

       separation of witnesses order was not violated. The trial court inquired of the

       prosecutor if anything needed to be addressed before trial resumed, and the

       prosecutor replied in the negative. Trial Tr. p. 447. Moreover, it was certainly

       not unreasonable for the trial court to allow A.Y. to have lunch with her

       parents. It is evident from the record before us that the trial was very stressful

       for the young child. For all of these reasons, Nunley’s trial counsel was not

       ineffective for failing to object to the violation of the separation of witnesses

       order.
       Court of Appeals of Indiana | Memorandum Decision 31A01-1703-PC-547 | May 23, 2018   Page 12 of 20
       E. Vouching Testimony

[23]   Nunley asserts that his trial counsel was ineffective for failing to object to

       Detective Wibbels’s testimony “vouching for the veracity and truthfulness of

       A.Y.” Appellant’s Br. at 28. Nunley failed to provide a record citation to the

       alleged vouching testimony. Therefore, Nunley waived this claim on appeal. See

       e.g. Thomas v. State, 965 N.E.2d 70, 77 n.2 (Ind. Ct. App. 2012), trans. denied;

       Ind. Appellate Rule 46(A)(8)(a).


       F. Cumulative Error

[24]   Finally, Nunley claims that even if the alleged individual errors were not

       prejudicial, their cumulative effect was. However, Nunley does not cite to any

       authority or present any argument addressing how he was prejudiced by the

       cumulative impact. Therefore, he has waived this issue on appeal. Ind.

       Appellate Rule 46(A)(8)(a).


                        Ineffective Assistance of Appellate Counsel
[25]   Nunley also claims that his appellate counsel was constitutionally ineffective for

       several reasons.3 When we review claims of ineffective assistance of appellate

       counsel, we use the same standard applied to claims of ineffective assistance of

       trial counsel, i.e., Nunley must show that appellate counsel's performance fell




       3
         Nunley claims that appellate counsel was ineffective for failing to raise the issues and arguments that he
       argues his trial counsel was ineffective for failing to raise. Because we conclude that Nunley’s trial counsel
       was not ineffective, we similarly conclude that Nunley cannot establish that he was prejudiced by those
       alleged errors. Therefore, Nunley’s appellate counsel was not ineffective for failing to raise those issues on
       appeal.

       Court of Appeals of Indiana | Memorandum Decision 31A01-1703-PC-547 | May 23, 2018                 Page 13 of 20
       below an objective standard of reasonableness and that there is a reasonable

       probability that, but for the deficient performance of counsel, the result of the

       proceeding would have been different. Manzano v. State, 12 N.E.3d 321, 329

       (Ind. Ct. App. 2014) (citing Harris v. State, 861 N.E.2d 1182, 1186 (Ind. 2007)),

       trans. denied. To show that counsel was ineffective for failing to raise an issue on

       appeal, the defendant must overcome the strongest presumption of adequate

       assistance, and judicial scrutiny is highly deferential. Id. (citing Reed v. State, 856

       N.E.2d 1189, 1195 (Ind. 2006)).


[26]   To evaluate the performance prong when counsel failed to raise 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 issues are “clearly stronger” than the raised issues. Id. If the analysis

       under this test demonstrates deficient performance, then we examine 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. at 329–30.


[27]   Ineffective assistance is very rarely found in cases where a defendant asserts that

       appellate counsel failed to raise an issue on direct appeal because the decision of

       what issues to raise is one of the most important strategic decisions to be made

       by appellate counsel. Id. at 330. Indeed, our supreme court has warned that we

       “should be particularly sensitive to the need for separating the wheat from the

       chaff in appellate advocacy,” and we “should not find deficient performance

       when counsel’s choice of some issues over others was reasonable in light of the

       facts of the case and the precedent available to counsel when that choice was

       Court of Appeals of Indiana | Memorandum Decision 31A01-1703-PC-547 | May 23, 2018   Page 14 of 20
       made.” Reed, 856 N.E.2d at 1196 (quoting Bieghler v. State, 690 N.E.2d 188, 194

       (Ind. 1997)).


[28]   Nunley claims that his appellate counsel was ineffective for (1) failing to argue

       that Nunley was denied the ability to present his defense because the trial court

       refused to admit evidence that A.Y. had made false accusations against another

       person, (2) failing to argue a double jeopardy violation, and (3) failing to argue

       that Nunley’s sentence was inappropriate.


       A. Inability to Present his Defense

[29]   Nunley argues his appellate counsel was ineffective for failing to argue that

       Nunley was denied the opportunity to present a complete defense because he

       was not able to present evidence that A.Y. had fabricated allegations of abuse

       against another person. First, we observe that Nunley does not cite to any

       portion of the record where he attempted to have this alleged evidence admitted

       at trial. Therefore, his claim is waived. See Ind. Appellate Rule 46(A)(8)(a).


[30]   Moreover, his appellate counsel argued on appeal that the trial court erred

       when it excluded evidence that A.Y. “had made a false allegation to the police

       on another occasion.” Nunley, 916 N.E.2d at 720. Our court held that the

       evidence was properly excluded pursuant to Evidence Rule 608(b), that the

       State did not open the door to admission of the evidence, and we rejected the

       argument that the rule “should yield to his right to present a defense.” Id. (citing

       Saunders v. State, 848 N.E.2d 1117, 1122 (Ind. Ct. App. 2006), trans. denied).




       Court of Appeals of Indiana | Memorandum Decision 31A01-1703-PC-547 | May 23, 2018   Page 15 of 20
[31]   Nunley’s appellate counsel petitioned for transfer on the issue, which petition

       was ultimately denied. Nunley’s claim that there was additional evidence that

       A.Y. fabricated a claim of prior abuse would not have prevailed under Evidence

       Rule 608(b) for the same reasons the similar claim was rejected in his direct

       appeal. We therefore conclude that Nunley’s appellate counsel was not

       ineffective for failing to raise this argument on direct appeal.


       B. Double Jeopardy Claim

[32]   Nunley also argues that his appellate counsel was ineffective because he failed

       to argue that Nunley was convicted in violation of the Double Jeopardy Clause

       for the three acts charged in Counts I, II, and V. Specifically, Nunley claims

       that the three acts were “part and parcel of a single confrontation with a single

       victim.” Appellant’s Br. at 32.


[33]   But the authority that Nunley relies upon, Bowling v. State, 560 N.E.2d 658 (Ind.

       1990), was impliedly overruled by our supreme court in Richardson v. State, 717

       N.E.2d 32 (Ind. 1999). See Vermillion v. State, 978 N.E.2d 459, 465 (Ind. Ct.

       App. 2012) (stating that “when Richardson was decided in 1999, it abrogated a

       number of cases that articulated the ‘single incident’ reasoning found in

       Bowling. However, Richardson made no mention of Bowling.”). The Vermillion

       court held that “[a] trial court may impose consecutive sentences for separate

       and distinct crimes that arise out of a single confrontation involving the same

       victim–subject to Richardson’s double-jeopardy protections, other sentencing

       mandates, and our abuse-of-discretion review.” Id. at 466; see also Ind. Code §

       35-50-1-2.
       Court of Appeals of Indiana | Memorandum Decision 31A01-1703-PC-547 | May 23, 2018   Page 16 of 20
[34]   For all of these reasons, Nunley’s appellate counsel was not ineffective for

       failing to argue that his sentences for Counts I, II, and V violated double

       jeopardy principles.


       C. Sentencing Errors

[35]   Lastly, Nunley argues that his appellate counsel was ineffective when he failed

       to challenge the trial court’s consideration of uncharged criminal conduct as an

       aggravating factor. And he claims his counsel was ineffective for failing to argue

       that Nunley’s enhanced and consecutive sentences are inappropriate in light of

       the nature of the offense and the character of the offender.


[36]   Nunley did not have a prior criminal history, but the trial court considered as

       aggravating that he had a history of criminal behavior because he was under

       investigation for molesting another child. The Court noted that it had “heard

       sworn testimony with respect to . . . the offenses that . . . the defendant

       allegedly committed.” Trial Tr. p. 911. And “the defendant was present, the

       defendant’s attorney was present, and the witness was subject to cross

       examination.” Id. The court also considered that he was in a position of care

       and control of the victim when he molested her. Nunley was ordered to serve

       consecutive terms of thirty-five years for the Class A felony child molesting

       convictions and twenty-one months for the Class D felony dissemination of

       matter harmful to minors conviction.4 Nunley’s sentences were less than the




       4
        He was also ordered to serve a concurrent thirty-five-year term for Count III (Class A felony child
       molesting) and a consecutive four years and eight months for Count IV (Class C felony child molesting). Our

       Court of Appeals of Indiana | Memorandum Decision 31A01-1703-PC-547 | May 23, 2018            Page 17 of 20
       maximum fifty years allowed by law for a Class A Felony conviction and the

       maximum three years allowed for a Class D felony conviction on the date of

       Nunley’s sentencing hearing. Ind. Code §§ 35-50-2-4, -7 (2005).


[37]   Nunley’s appellate counsel was not ineffective for failing to argue that the trial

       court improperly considered his uncharged criminal conduct as an aggravating

       circumstance. It is well-established that trial courts “may consider previous

       criminal activity, even though uncharged, in the determination of aggravating

       circumstances at sentencing.” Washington v. State, 902 N.E.2d 280, 291 (Ind. Ct.

       App. 2009), trans. denied. See also McElroy v. State, 865 N.E.2d 584, 591 (Ind.

       2007); Harlan v. State, 971 N.E.2d 163, 170 (Ind. Ct. App. 2012) (stating that

       “allegations of prior criminal activity need not be reduced to conviction before

       they may be properly considered as aggravating circumstances by a sentencing

       court”). The trial court considered sworn testimony that was subject to cross-

       examination in finding Nunley’s abuse of another child as an aggravating

       circumstance.


[38]   Nunley was also not prejudiced by his appellate counsel’s decision to forego an

       inappropriate sentence claim. Our court will revise a sentence authorized by

       statute only “if, after due consideration of the trial court’s decision, the Court

       finds that the sentence is inappropriate in light of the nature of the offense and

       the character of the offender.” Ind. Appellate Rule 7(B). The question is not




       court reversed those two convictions on direct appeal, effectively reducing Nunley’s sentence by four years
       and eight months.

       Court of Appeals of Indiana | Memorandum Decision 31A01-1703-PC-547 | May 23, 2018              Page 18 of 20
       whether another sentence is more appropriate, but whether Nunley’s sentence is

       inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). The

       “nature of the offense” refers to a defendant’s actions in comparison with the

       elements of the offense. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

       The “character of the offender” refers to “general sentencing considerations and

       the relevant aggravating and mitigating circumstances.” Douglas v. State, 878

       N.E.2d 873, 881 (Ind. Ct. App. 2007). Nunley bore the burden of proving that

       his less than maximum sentence was inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


[39]   Six-year-old A.Y. was left in Nunley’s care. Nunley terrorized the young child

       by making her perform fellatio on him and forcing her to submit to him as he

       licked her vagina. Nunley told A.Y. that he would hurt her parents if she did

       not perform fellatio on him. He also forced her to watch a pornographic movie.

       The trauma A.Y. continued to suffer as a result of Nunley’s actions was evident

       at trial. A.Y. was clearly distraught, often cried during her testimony, and took

       frequent breaks during her testimony.


[40]   Although Nunley did not have any prior criminal convictions, there was

       evidence that he had abused at least one other child and that he was in a

       position of trust with that child. And the State presented evidence at sentencing

       that Nunley had engaged in misconduct at the jail while awaiting sentencing.


[41]   Had appellate counsel raised the issue, our court would almost certainly have

       concluded that Nunley’s sentence was not inappropriate in light of the nature of


       Court of Appeals of Indiana | Memorandum Decision 31A01-1703-PC-547 | May 23, 2018   Page 19 of 20
       the offense and the character of the offender. Therefore, Nunley cannot

       establish any prejudice, and we conclude that his appellate counsel was not

       ineffective when he failed to challenge Nunley’s sentence.


                                                 Conclusion
[42]   For the reasons expressed in this decision, we conclude that Nunley has not

       established that his trial counsel or appellate counsel was ineffective. We

       therefore affirm the trial court’s denial of his petition for post-conviction relief.


[43]   Affirmed.


       Najam, J., and Barnes, J., concur.




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