MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                Oct 14 2015, 8:45 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Alan W. Jenkins                                          Gregory F. Zoeller
Pendleton, Indiana                                       Attorney General of Indiana
                                                         Kelly A. Miklos
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Alan W. Jenkins,                                         October 14, 2015
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         41A01-1502-PC-77
        v.                                               Appeal from the Johnson Superior
                                                         Court
State of Indiana,                                        The Honorable Kevin M. Barton,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         41D01-0602-PC-1



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015   Page 1 of 29
[1]   Alan W. Jenkins was convicted of two counts of child molesting,1 each as a

      Class A felony, and was found to be a habitual offender.2 Jenkins now appeals

      the denial of his petition for post-conviction relief (“PCR”), raising the

      following consolidated and restated issues:


                 I. Whether Jenkins was denied effective assistance of both trial
                 and appellate counsel; and

                 II. Whether the PCR court erred in finding that laches barred
                 consideration of the merits of Jenkins’s PCR petition.


[2]   We affirm.


                                       Facts and Procedural History3
[3]   In the winter of 2002, Jenkins’s sister, S.P., and her twelve-year-old daughter,

      G.P., moved in with Jenkins. During the following two to three months,

      Jenkins’s relationship with G.P. changed from an “uncle/niece relationship,” to

      being friends, and then to a “boyfriend/girlfriend relationship.” Trial Tr. at




      1
          See Ind. Code § 35-42-4-3.
      2
        See Ind. Code § 35-50-2-8. We note that, effective July 1, 2014, a new version of these criminal statutes was
      enacted. Because Jenkins committed his crimes prior to July 1, 2014, we will apply the statutes in effect at
      the time he committed his crimes.
      3
        On direct appeal, Jenkins raised one issue—whether his consecutive and enhanced sentences, totaling one
      hundred years, violated his Sixth Amendment rights as outlined in Blakely v. Washington, 542 U.S.296 (2004).
      Extensive facts were not necessary for our court to address that sentencing issue. Therefore, unlike most
      decisions for post-conviction relief, the narrative of facts from the direct appeal are inadequate for the
      resolution of this case. Accordingly, we use facts set forth in the post-conviction court’s decision and, as
      needed, facts most favorable to the verdict.



      Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015             Page 2 of 29
      575-76.4 Jenkins and G.P., who was in sixth grade at the time, regularly

      engaged in sexual intercourse and oral sex, activities that were often

      accompanied by alcohol and drug use. G.P. would steal liquor and cigarettes

      from drugstores, and Jenkins would sometimes drive her to the stores. The two

      spent a great deal of time together, often because G.P. was skipping school. At

      some point, the two “started doing ‘crack’ together.” Id. at 587.


[4]   From December 2002 through August 2003, Jenkins, S.P., and G.P. lived in

      various apartments, and on August 25, 2003, all three moved into a home

      located on East Main Street in Greenwood, Johnson County, Indiana. G.P.

      remained in that home until December 11, 2003, when she was taken into

      custody by Juvenile Probation for having violated her probation for truancy.

      Immediately after being taken into custody, G.P. failed a mandatory drug

      screen, by testing positive for cocaine, marijuana, and alcohol. This, among

      other factors, resulted in G.P. being placed into Fresh Start, a placement home

      for juveniles who have been removed from their home and placed into the care

      of a state agency.


[5]   In February 2004, Court Appointed Special Advocate (“CASA”) Roger York

      investigated G.P.’s case and filed a report with the trial court regarding his




      4
        Because we cite to documents from the original trial, direct appeal, and PCR evidentiary hearing, we use
      the following designations: Appellant’s App. and Appellee’s App. refer to the appendices filed in connection
      with Jenkins’s direct appeal; PCR App. refers to appellant’s appendix filed in connection with the instant
      appeal; and Trial Tr. and PCR Tr. refer, respectively, to the transcripts from the trial and PCR evidentiary
      hearings. Because the record before us contains only briefs filed in connection with the instant appeal, we
      refer to those as Appellant’s Br. and Appellee’s Br.

      Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015              Page 3 of 29
      findings. CASA York reported that he had met with S.P., Jenkins, and their

      mother, Beverly Jenkins (“Beverly”) at the East Main Street home. During his

      visit, CASA York told G.P.’s family that there could be no drugs or alcohol in

      the home. When S.P. interrupted to ask when G.P. would be allowed to come

      home, the CASA explained that G.P. would have to complete her alcohol

      abuse program. PCR App. at 261. S.P. said that she understood; however,

      Jenkins “kept objecting and at one point accused the Court of kidnapping

      [G.P].” Id. “Beverly said that she had seen this coming for a long time and she

      indicated that there was something wrong with [Jenkins].” Id. Meanwhile,

      during Fresh Start counseling sessions, G.P. provided counselors with the

      names of men with whom she claimed to be sexually active.


[6]   As part of the his report, CASA York reported that he called Johnson County

      Probation Officer Shannon Chambers (“Chambers”) and Office of Family

      Services Case Manager Deborah Anderson (“Anderson”)5 and “expressed

      concerns about [Jenkins].” Id. CASA York did not expressly state the nature

      of his concerns. Both Chambers and Anderson indicated that they also had

      concerns, and Fresh Start was alerted to the concerns. Within a few weeks,

      G.P. admitted to Fresh Start employees that it was her uncle, Jenkins, with




      5
        In late 2003 and early 2004, G.P.’s Case Manager was Deborah Corley. Subsequent to Jenkins’s trial, but
      prior to the PCR evidentiary hearings, Corley married and changed her last name to Anderson. Accordingly,
      we will refer to her by the name Anderson.

      Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015        Page 4 of 29
      whom she was engaging in oral sex and sexual intercourse and that he, in part,

      “controlled her by hooking her on cocaine.” Id. at 261.


[7]   Detective Patti Cummings, of the Greenwood Police Department, was the lead

      investigator and first became involved in the investigation in early February

      2004. On February 17, 2004, the State charged Jenkins with three counts of

      child molesting, each as a Class A felony; in March 2004, the State added the

      charge of contributing to the delinquency of a minor as a Class A misdemeanor

      and alleged that Jenkins was a habitual offender. Jenkins initially requested

      that the DNA found at the scene, which implicated him, be retested. However,

      upon learning that the retesting would not be completed until after the deadline

      for his speedy trial, Jenkins chose to abandon the retesting and pursue his right

      to a speedy trial. Attorney James Dunn (“Dunn”) was initially appointed as

      Jenkins’s public defender, but was relieved of his appointment when other

      commitments interfered with Jenkins’s request for a speedy trial. John P.

      Wilson (“Wilson”) accepted the appointment as Jenkins’s new public defender

      and entered an appearance at a hearing on April 5, 2004. The jury trial

      commenced about twenty-eight days later. Wilson served as Jenkins’s counsel

      during the jury trial and through sentencing.


[8]   Jenkins’s trial commenced in Judge Kevin Barton’s courtroom on May 3, 2004

      and ran through May 11, 2004. The jury found Jenkins guilty of two counts of

      Class A felony child molesting—one for engaging in sexual intercourse with

      G.P. and one for receiving oral sex from G.P.—and determined he was a

      habitual offender. The jury, however, acquitted Jenkins of one count of Class

      Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015   Page 5 of 29
       A felony child molesting, for providing oral sex to G.P., and of Class A

       misdemeanor contributing to the delinquency of a minor. The trial court

       entered judgment of conviction on the jury verdicts and sentenced Jenkins to

       two enhanced thirty-five-year terms for the child molesting and another thirty-

       year term for being a habitual offender, all to be served consecutively, for an

       aggregate sentence of 100 years.


[9]    Attorney Charles Gantz (“Gantz”) served as Jenkins’s appellate counsel,

       raising only a sentencing issue on direct appeal. A panel of this court affirmed

       Jenkins’s sentence in an unpublished memorandum decision; however the case

       was remanded for the trial court to link the habitual offender status to one of

       the felony convictions. Jenkins v. State, No. 41A01-0502-FA-1, slip op.at 1-6

       (Ind. Ct. App. June 28, 2005). An amended sentencing order was entered on

       August 24, 2005.


[10]   Acting pro se, Jenkins filed a Verified Petition for Post-Conviction Relief on

       February 8, 2006, alleging that he was denied the effective assistance of both

       trial and appellate counsel. On March 17, 2006, the appointed public defender

       filed a notice of “present inability to investigate”. PCR App. at 97. Jenkins

       asked that the PCR court to “stay all proceedings in this case until such time as

       counsel is ready to proceed.” Id. By order dated April 6, 2006, the PCR court

       granted Jenkins’s request, stating the “matter be set for hearing when

       Petitioner’s counsel notifies the court of her ability to proceed.” Id. Jenkins’s

       counsel never notified the PCR court; instead, she obtained the court’s



       Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015   Page 6 of 29
       permission to withdraw from the case on July 1, 2008. This triggered the PCR

       court to set the post-conviction petition for a hearing on September 18, 2008.


[11]   On three occasions in 2009, the PCR court granted Jenkins a continuance and

       reset the hearing. When Jenkins requested a fourth continuance, the PCR court

       vacated the scheduled hearing, noting that the hearing would be reset after

       Jenkins had completed legal research and discovery. PCR App. at 98. No

       entries were made on the CCS from December 7, 2009 until March 3, 2011, at

       which time Jenkins informed the PCR court that he was still not ready to

       proceed with a hearing.


[12]   On February 2, 2012, Jenkins requested public funds to obtain independent

       DNA testing and to hire an expert witness; the PCR court denied the request

       and also denied Jenkins’s motion to certify that order for interlocutory appeal.

       On June 22, 2012, Jenkins filed an unverified motion to amend his PCR

       petition in part. An evidentiary hearing began on November 28, 2012, with

       Judge Barton again presiding. Trial counsel Wilson, G.P, and two other

       witnesses testified as witnesses for Jenkins; however, when time ran short, the

       PCR court ordered the hearing be reconvened on February 21, 2013. Later, the

       hearing was reset to May 29, 2013, due to a congested court calendar. On that

       day, Jenkins called seven witnesses, including his mother, his sister-in-law,

       Probation Officer Chambers, appellate attorney Gantz, Wilson, and G.P.;

       however, upon discovering that Jenkins’s witness, Case Manager Anderson,

       had not been subpoenaed, the PCR court retained a private investigator to



       Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015   Page 7 of 29
       locate and serve Anderson. Once Anderson was located, the hearing was

       rescheduled for September 17, 2013, and was concluded that same day.


[13]   Following the three-day evidentiary hearing, the PCR court denied Jenkins’s

       PCR petition, finding that both trial counsel and appellate counsel provided

       effective assistance of counsel and that the affirmative defense of laches barred

       relief to Jenkins as to the underlying convictions. Jenkins now appeals.6


                                       Discussion and Decision
[14]   Jenkins contends that the post-conviction court erred in denying his petition for

       post-conviction relief. Post-conviction proceedings provide a narrow remedy to

       raise issues that were not known at the time of the original trial or were

       unavailable on direct appeal. White v. State, 25 N.E.3d 107, 132 (Ind. Ct. App.

       2014), trans. denied. The petitioner in a post-conviction proceeding bears “the

       burden of establishing his grounds for relief by a preponderance of the

       evidence.” Ind. Post-Conviction Rule 1(5); White, 25 N.E.3d at 132. When

       issuing its decision to grant or deny relief, the post-conviction court must make

       findings of fact and conclusions of law. P-C.R. 1(6). Here, the PCR court set

       forth its findings and conclusions in a ninety-two page decision.


[15]   When appealing from the denial of post-conviction relief, the petitioner stands

       in the position of one appealing from a negative judgment. White, 25 N.E.3d at




       6
         We commend the PCR court for the thoroughness and clarity of its findings, which greatly aided appellate
       review of this case.

       Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015          Page 8 of 29
132. In conducting our review, we neither reweigh evidence nor judge witness

credibility; rather, we consider only the evidence and reasonable inferences

most favorable to the judgment. McKnight v. State, 1 N.E.3d 193, 199 (Ind. Ct.

App. 2013), trans. denied. “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.” Passwater v. State,

989 N.E.2d 766, 770 (Ind. 2013) (citation and quotation marks omitted). In

other words, if a post-conviction petitioner was denied relief in the proceedings

below, he must show that the evidence as a whole leads unerringly and

unmistakably to a conclusion opposite the one reached by the post-conviction

court. Massey v. State, 955 N.E.2d 247, 253 (Ind. 2011). Post-conviction relief

does not offer the petitioner a super appeal; rather, subsequent collateral

challenges must be based on grounds enumerated in the post-conviction rules.

McKnight, 1 N.E.3d at 199. Where, as here, the judge who presided over the

defendant’s trial is also the judge who presided over his post-conviction

proceedings, the post-conviction court’s findings and judgment should be

entitled to “greater than usual deference.” Hinesley v. State, 999 N.E.2d 975, 982

(Ind. Ct. App. 2013), trans. denied.




Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015   Page 9 of 29
                             I. Ineffective Assistance of Counsel7
[16]   Jenkins contends that he was denied effective assistance of both trial and

       appellate counsel. “The benchmark for judging any claim of ineffectiveness

       must be whether counsel’s conduct so undermined the proper functioning of the

       adversarial process that the trial cannot be relied on as having produced a just

       result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). “A convicted

       defendant’s claim that counsel’s assistance was so defective as to require

       reversal of a conviction has two components.” Id. First, the defendant must

       show that counsel’s performance was deficient. Garcia v. State, 936 N.E.2d 361,

       364 (Ind. Ct. App. 2010) (citing Strickland, 466 U.S. at 364), trans. denied. This

       requires a showing that counsel’s representation fell below an objective

       standard of reasonableness and that the errors were so serious that they resulted

       in a denial of the right to counsel guaranteed to the defendant by the Sixth and

       Fourteenth Amendments of the United States Constitution. Id. (citing

       Strickland, 466 U.S. at 687-88). Second, the defendant must show that the

       deficient performance resulted in prejudice. Id. To establish prejudice, a

       defendant must show that there is a reasonable probability that but for counsel’s

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




       7
         Jenkins filed his original PCR petition in 2006 and amended the PCR petition, in part, on June 22, 2012.
       The PCR court noted that this amendment was not verified as required by Post-Conviction Rule 1(2) or in
       the form specified by Post-Conviction Rule 1(3). The trial court nevertheless accepted the document as an
       elaboration of the grounds set forth in Jenkins’s 2006 PCR Petition, and not as an amendment to the PCR
       Petition. Nevertheless, the PCR court addressed many of the issues listed in the “amendment.” To the
       extent it is necessary, we will do the same.

       Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015          Page 10 of 29
       Id. (citing Strickland, 466 U.S. at 694). A reasonable probability is a probability

       sufficient to undermine confidence in the outcome. Perryman v. State, 13

       N.E.3d 923, 931 (Ind. Ct. App. 2014), trans. denied.


[17]   Further, counsel’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). “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 that, at the time and under the

       circumstances, seems best.” Perry v. State, 904 N.E.2d 302, 308 (Ind. Ct. App.

       2009), trans. denied. Isolated omissions or errors, poor strategy, or bad tactics do

       not necessarily render representation ineffective. Shanabarger v. State, 846

       N.E.2d 702, 708 (Ind. Ct. App. 2006), trans. denied. The two prongs of the

       Strickland test are separate and independent inquiries. Manzano v. State, 12

       N.E.3d 321, 325 (Ind. Ct. App. 2014), trans. denied, cert. denied, 135 S. Ct. 2376

       (2015). Therefore, “if it is easier to dispose of an ineffectiveness claim on one of

       the grounds instead of the other, that course should be followed.” Talley v.

       State, 736 N.E.2d 766, 769 (Ind. Ct. App. 2000).


[18]   Where, as here, the post-conviction court makes findings of fact and

       conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we

       cannot affirm the judgment on any legal basis, but rather, must determine if the

       court’s findings are sufficient to support its judgment. Graham v. State, 941

       N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947 N.E.2d 962 (Ind. Ct.

       App. 2011). Although we do not defer to the post-conviction court’s legal
       Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015   Page 11 of 29
       conclusions, we review the post-conviction court’s factual findings under a

       clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence

       or judge the credibility of witnesses, and we will consider only the probative

       evidence and reasonable inferences flowing therefrom that support the post-

       conviction court’s decision. Id.


                                                 A. Trial Counsel

[19]   Jenkins argues that the PCR court erred by finding that Wilson provided

       effective assistance of trial counsel. Specifically, Jenkins contends that his trial

       counsel was ineffective under both the standard set forth in Strickland and the

       standard set forth in United States v. Cronic, 466 U.S. 648 (1984), a companion

       case to Strickland. The Cronic test for ineffective assistance of counsel applies

       when the likelihood that any lawyer, even a fully competent one, could provide

       effective assistance is so small that a presumption of prejudice is appropriate

       without inquiry into the actual conduct of the trial; one circumstance

       warranting the presumption is the complete denial of counsel, that is, when

       counsel is either totally absent or was prevented from assisting the accused

       during a critical stage of the proceeding. Cronic, 466 U.S. at 660-61.8




       8
        While we note that Wilson’s defense resulted in Jenkins being acquitted of one Class A felony count of
       child molesting and Class A misdemeanor contributing to the delinquency of a minor, our Supreme Court
       has said, “We do not determine adequacy of representation on the basis of whether or not an acquittal was
       won.” Dillon v. State, 448 N.E.2d 21, 27 (Ind. 1983).

       Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015         Page 12 of 29
                                                    1. Cronic

[20]   We first address whether Wilson provided ineffective assistance of trial counsel

       under the Cronic standard. We begin by noting that, while Jenkins raised this

       ineffective assistance of trial counsel issue in his motion to amend in part his

       PCR petition, and the PCR court mentioned the Cronic case in its findings of

       facts and conclusions of law, Jenkins did not refer to the Cronic standard during

       the three-day PCR hearing. PCR App. at 19, 127-28. This clearly was not the

       focus of Jenkins’s attention, nor should it have been. In Cronic, the United

       States Supreme Court held that there are three scenarios in which the defendant

       need not satisfy the Strickland test, because prejudice is presumed: (1) where

       there is a complete denial of counsel; (2) where counsel entirely fails to subject

       the prosecution’s case to meaningful adversarial testing; and (3) where counsel

       is asked to provide assistance in circumstances where competent counsel likely

       could not. Cronic, 466 U.S. at 659-60.


[21]   The Cronic Court further explained that “only when surrounding circumstances

       justify a presumption of ineffectiveness can a Sixth Amendment claim be

       sufficient without inquiry into counsel’s actual performance at trial.” Id. at 662.

       United States Supreme Court Justice Powell explained that, under the

       circumstances described in the third situation, “the defendant is in effect

       deprived of counsel altogether, and thereby deprived of any meaningful

       opportunity to subject the State’s evidence to adversarial testing.” Kimmelman

       v. Morrison, 477 U.S. 365, 395 n.2 (1986) (Powell, J., concurring). Our Supreme



       Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015   Page 13 of 29
       Court has reiterated that a petitioner “faces an extremely heavy burden in

       making his Cronic claims.” Ward v. State, 969 N.E.2d 46, 77 (Ind. 2012).


[22]   Jenkins maintains that the instant facts fall within the third scenario and that

       the late appointment of Wilson as trial counsel, essentially justified a

       presumption of prejudice “without inquiry into the actual conduct of the trial.”

       Appellant’s Br. at 24. We disagree.


[23]   In Ward, our Supreme Court discussed Cronic, stating:


               [T]he district court had appointed a young lawyer with a real
               estate practice who had never conducted a jury trial to represent
               a defendant who had been indicted for mail fraud. Although it
               had taken the government four-and-one-half years to investigate
               the case and review thousands of documents, this young lawyer
               had only 25 days for pretrial preparation. The Tenth Circuit had
               held that these circumstances, among others, justified a
               presumption of ineffectiveness without inquiry into performance
               or prejudice. The Supreme Court disagreed. While recognizing
               that certain extreme circumstances justify such a presumption,
               the Supreme Court held that the circumstances at issue in that
               case did not make it unlikely that the defendant could have
               received effective assistance of counsel.


       Ward, 969 N.E.2d at 77.


[24]   The same reasoning applies to the facts before us. The PCR court found that

       Wilson is, and in 2004 was, an experienced attorney. PCR App. at 20. Since

       1988, Wilson “provided criminal defense, mostly on felony cases.” Id. Wilson:

       (1) had maintained a public defender contract with Johnson County since 1988,

       at least fifteen years prior to his representation of Jenkins; (2) had tried upwards
       Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015   Page 14 of 29
       of 100 criminal trials; and (3) handled several hundred criminal cases a year.

       Id. Additionally, Wilson was appointed as Jenkins’s counsel more than twenty-

       five days prior to trial. This case is not one in which the surrounding

       circumstances make it unlikely that the defendant could have received the

       effective assistance of counsel. Cronic, 466 U.S. at 666. Accordingly, Jenkins

       has not met his burden of proving that Wilson provided ineffective assistance of

       trial counsel pursuant to the Cronic standard.


                                                  2. Strickland

[25]   Under the Strickland standard, Jenkins contends that Wilson failed to: depose,

       subpoena, question, or impeach witnesses; adequately investigate the case; have

       DNA tested by an independent expert, thereby making Jenkins chose between

       DNA results and a speedy trial; object to jurors who were not impartial and

       unbiased; and object to prosecutorial misconduct. Jenkins also argues that

       Wilson was ineffective for failing to ensure better acoustics and equipment in

       the courtroom, where that failure produced an inaccurate or incomplete trial

       transcript.


[26]   Jenkins asserts that Wilson was ineffective when he failed to depose or

       subpoena CASA York and Detective Cummings. Jenkins contends that CASA

       York was the heart of the case; specifically, he was the one who, in his CASA

       report, first stated that he had concerns about Jenkins. In the absence of CASA

       York sharing his concerns with Chambers and Anderson, Jenkins would never

       have been included in the investigation that resulted in charges being filed

       against him. Appellant’s Br. at 7. The State responds that trial counsel made a
       Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015   Page 15 of 29
       reasonable strategic decision not to further investigate or present testimony

       from CASA York because CASA York did not make “accusations of criminal

       conduct against Jenkins.” Appellee’s Br. at 15. The PCR court agreed with the

       State.


[27]   During the PCR evidentiary hearing, Wilson testified that “Roger York was not

       the ‘accuser’ of Mr. Jenkins,” but rather, he “authored a CASA report that he

       took information on.” PCR App. at 36 (citing PCR Tr. at 104). The PCR court

       noted that the CASA report did not indicate that CASA York initiated the

       investigation of Jenkins, nor did it state that CASA York contacted Corley and

       Anderson to report concerns about molestation. Id. From this, the PCR court

       concluded, “Mr. Jenkins has failed to show how Mr. Wilson’s failure to call

       Mr. York, who had expressed concerns about Mr. Jenkins, would have

       benefitted the case.” Id. at 37. The PCR court’s findings as to this claim were

       supported by the record and are sufficient to support a finding that Wilson was

       not ineffective.


[28]   Jenkins also contends that trial counsel was ineffective for failing to question

       Detective Cummings regarding false accusations G.P. had made about other

       men having molested her. Appellant’s Br. at 9. Specifically, he contends that,

       such questions could have created a reasonable doubt by showing that G.P. lied

       or that someone else was the perpetrator. The State responds that Wilson has

       failed to show either deficient performance or prejudice. Appellee’s Br. at 18.

       Specifically, Wilson cannot be found to have been ineffective for failing to

       present the irrelevant question of whether G.P. had other sexual relations,

       Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015   Page 16 of 29
       where that question had no bearing on the proof of whether Jenkins had had

       improper sexual relations with G.P.9 Id.


[29]   Error, if any, in Wilson’s failure to question Detective Cummings regarding

       G.P.’s credibility created no prejudice. Wilson effectively probed into G.P.’s

       credibility in other ways. PCR App. at 32. While G.P. testified that Jenkins was

       the one who repeatedly molested her, she also admitted at trial that she had

       made false accusations against numerous adult men concerning sexual

       encounters. Trial Tr. at 765-69. Further, the PCR court found that Wilson’s

       questioning of G.P. revealed that she skipped school, lied, and “stole candy,

       clothes, liquor, cigarettes, and oxycontin from a man without legs.” PCR App.

       at 31. G.P. admitted that she drank and smoked “weed” in fourth grade and

       that she eventually used cocaine. Id. The PCR court concluded that Wilson

       established that G.P. “had often been untruthful and she had made false

       statements regarding sex and molestation.” Id. at 32. We agree with the PCR

       court. In light of G.P.’s own admissions, Wilson’s failure to question Detective

       Cummings about G.P.’s false accusations that other men had sex with her

       could not have prejudiced Jenkins. The PCR court’s findings as to this claim




       9
         The State maintains that Jenkins has waived this issue for appellate review by failing during the PCR
       evidentiary hearing to “present Wilson’s failure to question Detective Cummings about other adults that G.P.
       admitted to having sexual relations with as a basis of ineffective assistance of counsel.” Appellee’s Br. at 18.
       We disagree; this issue is not waived. During the PCR hearing, Jenkins did question Wilson regarding why
       he did not question Detective Cummings as to why there was no investigation into the other men, resulting
       in Jenkins being the only one charged with child molesting. PCR Tr. at 23-28.



       Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015             Page 17 of 29
       were supported by the record and are sufficient to support a finding that Wilson

       was not ineffective.10


[30]   Jenkins asserts that Wilson was ineffective when he failed to call his mother,

       Beverly, and his sister-in-law, Lynette, to testify on his behalf. He contends that

       Beverly would have testified that she read letters that Jenkins sent to G.P. while

       she was in Fresh Start, and that none of them were inappropriate. She also

       would have highlighted inconsistencies in G.P.’s testimony. He alleges that

       Lynette would have testified that she was the person G.P. contacted after she

       had been caught shoplifting. Jenkins maintains that both of these witnesses

       would have been credible witnesses and would have created doubt regarding

       G.P.’s credibility. Regardless of whether Wilson should have called these two

       witnesses, his failure to do so, did not prejudice Jenkins. As noted above, a

       significant amount of testimony was introduced regarding G.P.’s history of

       taking drugs, stealing, and lying. The jury was presented with evidence with

       which to scrutinize her testimony to determine what they could believe.

       Wilson was not ineffective for failing to call these two witnesses to testify.


[31]   Jenkins maintains that Wilson was ineffective for not thoroughly challenging

       G.P.’s testimony that described sitting on an orange recliner at the time when




       10
          Claiming newly discovered evidence, Jenkins asserts that G.P. wrote a letter after trial, in October 2007,
       stating that she made up places these crimes happened. Jenkins argues that this letter, combined with G.P.’s
       deposition “proves her credibility should be deemed dubious at best.” Appellant’s Br. at 11. The PCR court
       found that this letter provided no new evidence that was not already presented at trial. PCR App. at 90.
       Furthermore, we find, that to the extent Jenkins wanted to use this letter to attack G.P.’s credibility, Wilson
       had already attacked G.P.’s credibility during trial.

       Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015             Page 18 of 29
       Jenkins had vaginal intercourse with her. Jenkins offers that G.P. changed her

       story when no DNA was found on the recliner, and that Wilson should have

       been prepared to impeach G.P. when she changed her story regarding where

       and how Jenkins had sexual intercourse with her on an orange recliner.


[32]   During final argument, Wilson highlighted for the jury that “neither Mr.

       Jenkins’[s] nor [G.P.’s] genetic material was found on the recliner, and that fact

       contradicted G.P.’s testimony of having had sex in the chair.” PCR App. at 25.

       When questioned during the PCR hearing whether he should have questioned

       G.P. about changing her story as to sex in the recliner, Wilson testified that

       there was no need because there was so much evidence of Jenkins’s guilt, and,

       thus, the recliner “really played a pretty small part in the accumulation of

       evidence against [Jenkins].” Id. at 26. Wilson asserted that he would have

       risked alienating the jury if he had questioned G.P. on every inconsistency. The

       PCR court noted that Wilson effectively handled the cross-examination of

       G.P.’s testimony regarding having had sex with Jenkins in the recliner in a

       manner that was designed to discredit G.P. without building sympathy for her.

       Id. at 26. Accordingly, the PCR court concluded that Wilson was effective in

       handling this issue. Jenkins has not met his burden of proving otherwise.


[33]   Jenkins next asserts that Wilson was ineffective because he did not investigate

       the case. Jenkins specifically focuses on the fact that Wilson did not make a

       personal visit to the home or tree house, both of which G.P. alleged were

       locations where Jenkins committed sex acts with G.P. Jenkins maintains that

       he was prejudiced because a visit to the scene would have revealed that sex

       Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015   Page 19 of 29
       could not have happened in the places as alleged. He elaborates that there were

       sticker bushes under the tree house and that a visit would have revealed that sex

       could not have occurred there as G.P. contends. Jenkins also asserts that his

       seminal fluid was found on floor boards removed from an empty adjoining

       apartment, but that Wilson did not probe into a discrepancy regarding

       Detective Cummings’s testimony as to when floor boards were removed for

       DNA testing. The State responds that Wilson retained the services of J.P.

       Renner, a professional investigator, and that Wilson familiarized himself with

       the surroundings based on that investigator’s photographs of the scene.

       Further, the State contends that Jenkins cannot show that any prejudice

       resulted from a discrepancy about the date when the floor boards were

       removed. We agree.


[34]   While Wilson did not go to the house or the tree house, his investigator did.

       The PCR court found, “Inasmuch as attorneys commonly use the services of

       trained investigators for the purpose of investigation and developing cases for

       trial, the Court does not find that Mr. Wilson was deficient in his representation

       of Jenkins.” PCR App. at 22. Regarding allegations of Wilson’s ineffectiveness

       for failure to investigate the tree house, the PCR court noted that the tree house

       was not in Johnson County and that events occurring at the tree house “were

       not part of the acts for which Mr. Jenkins stood trial” in the instant case. Id. at

       24. Addressing the discrepancy in the removal date of the floor boards, the

       PCR court, while unable to definitively determine the date that the boards were

       removed, found that Wilson provided effective assistance of counsel. During


       Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015   Page 20 of 29
       closing argument, Wilson “dealt with the issue that the presence of Mr.

       Jenkins’s seminal fluid on the floor . . . does not mean that he engaged in sex

       with G.P. at that location.” Id. at 23. Even the landlord had testified that

       Jenkins had been in the adjoining apartment. The PCR court concluded that

       Jenkins had failed to prove that Wilson’s assistance was ineffective due to a

       “failure to take further steps in relation to the genetic material found on the

       boards in the adjoining vacant apartment.” Id. at 23-24. On appeal, Jenkins

       has not convinced us that the PCR court’s finding—that Wilson properly

       investigated the case—is clearly erroneous.


                                                     Coaching

[35]   In a summary fashion, Jenkins contends that Wilson was ineffective when he

       failed to pursue the issue of whether G.P. had been coached. During a bench

       conference, Wilson and Prosecutor Daylon Welliver said,


               Mr. Welliver: Yeah, but . . . I don’t know what kind of answer
               you’re gonna get from her.

               Mr. Wilson: Didn’t you coach her?

               Mr. Welliver: I didn’t, I didn't anticipate this line of questioning.

               Mr. Wilson: You’re a numbskull, you ought to be anticipating
               anything out of me.


       Trial Tr. at 764. Jenkins’s only argument on this issue was to pose the

       rhetorical question of how an attorney who made such a comment could be

       effective.

       Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015   Page 21 of 29
[36]   The PCR court found that the comment by Wilson was “no more than a

       display of his humor.” PCR App. at 94. “The working relationship between

       deputy prosecuting attorneys and defense bar often displays playful jabs from

       one to the other . . . . It is part of Johnson County legal culture.” Id. The PCR

       court also found significant that the comment was made in a bench conference

       and not to the jury. Id. We agree with the PCR court that Wilson’s comments

       during this bench conference are no indication that Wilson was ineffective, and

       Jenkins has not met his burden of proving otherwise.


                                                       DNA

[37]   Jenkins argues that his trial counsel was ineffective for failing to have an

       independent expert retest the “vital DNA evidence” before trial, which would

       have provided exculpatory evidence. Appellant’s Br. at 14-15. Responding to

       the claim that he chose the right to a speedy trial over the ability to retest the

       DNA, Jenkins asserts that he should have been able to have both.


[38]   During the post-conviction hearing, Jenkins’s first trial counsel, Dunn, testified

       that he and Jenkins had discussed having the DNA retested. Dunn informed

       Jenkins that an independent test would take several months to complete and

       that, in order to have the DNA tested, the request for a speedy trial would have

       to be withdrawn. Jenkins decided to proceed with the speedy trial, and Wilson

       served as trial counsel. The PCR court found:


               Jenkins asserts that he had a right to obtain an independent DNA
               analysis in the case. He was granted funds to obtain an
               independent DNA analysis. However, an independent DNA

       Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015   Page 22 of 29
               analysis could not be made within the time period established by
               Mr. Jenkins’s request for a speedy trial. Mr. Jenkins asserts that
               he has a right to obtain an independent DNA analysis within the
               time period established by his request for a speedy trial. The
               Court is unaware of any authority that requires independently
               hired third party experts to conform to the time limits imposed by
               a request for a speedy trial. As testified to by Mr. Wilson, a
               request for a speedy trial may impose limitations upon the
               defense. Here, Mr. Jenkins had the opportunity to obtain
               independent DNA analysis but rejected that opportunity so that
               the trial could be held within the time period set by his request
               for a fast and speedy trial.


       PCR App. at 28 (citation omitted).


[39]   The PCR court’s findings that trial counsel followed Jenkins’s wishes by

       moving ahead with the speedy trial, instead of waiting for the DNA to be

       retested, were supported by the evidence in the record. On appeal, Jenkins has

       cited to no authority that challenges the PCR court’s conclusion that, under the

       facts of this case, Jenkins had to choose between his right to a speedy trial and

       taking the time to retest the DNA. Under the circumstances, we cannot say

       that Wilson was ineffective for proceeding with a speedy trial instead of having

       the DNA retested. Moreover, Jenkins has failed to show that the lack of testing

       was prejudicial to him. Here, Jenkins does not deny that the DNA found on

       the floor boards at the neighboring apartment was his, or that both his and

       G.P.’s DNA were mixed in samples obtained from a comforter. Instead, he

       maintains that the State’s expert witness was not clear in explaining the results

       of each sample as it related to the sexual act alleged. Jenkins cannot show that,



       Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015   Page 23 of 29
       had the retesting been done, the outcome of his trial would have been different.

       Wilson provided effective counsel regarding the testing of the DNA.


                                            Prosecutorial Misconduct

[40]   Jenkins contends Wilson did not object to, what Jenkins deemed to be,

       prosecutorial misconduct. During closing argument, Prosecutor Welliver

       explained that the judge would read instructions about the elements of the

       crimes, but explained that the jury could follow a simpler path. “Ultimately,

       your choice is whether you believe that [G.P.] told you the truth on the stand,

       or whether you believe what [Jenkins] told the police.” Trial Tr. at 1077.

       Jenkins argues that when Wilson did not object to this statement, he essentially

       misled the jury into believing that Jenkins could be convicted without the State

       having to prove each element of the offense, specifically, the element of

       penetration.11


[41]   The PCR court noted that, in most cases, a conviction for child molesting

       depends on the testimony of the alleged victim; other evidence may corroborate

       or detract from the victim’s testimony, but the victim’s testimony, if credible,

       establishes the requisite statutory elements. PCR App. at 85. The prosecutor’s

       comment was no more than a recognition of that dynamic. Id. Further, the




       11
         As part of this argument, Jenkins argues that Wilson was ineffective when he did not investigate or consult
       with a medical expert “concerning the fact that the victim who alleged to have been sexually assaulted was
       never physically or psychologically examined to prove she was not a virgin or if she was a chronic
       pathological liar unable to even tell the truth.” Appellant’s Br. at 26. The evidence of G.P.’s prior sexual
       activity, if any, would not have been relevant to the issue of whether Jenkins had molested G.P. Further,
       Wilson provided more than sufficient evidence to place G.P.’s credibility into question.

       Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015           Page 24 of 29
       jury was correctly instructed as to the elements of each offense, and while

       penetration is not an element itself, it is included within the definition of sexual

       intercourse and deviate sexual conduct, both of which are elements. Id. at 86

       (citing Trial Tr. at 1142-46). During the PCR hearing, Wilson testified that it

       was his recollection that G.P. testified as to all of the elements of child

       molesting. The PCR court concluded that Jenkins’s assertion of prosecutorial

       misconduct was without merit. Id. We agree.


[42]   Here, the jury was properly instructed as to each of the charges and as to the

       elements required to prove each of the charges. On appeal, Jenkins does not

       deny that G.P.’s testimony, if believed, satisfied all of the elements of the crimes

       for which he was convicted. Wilson was not deficient when he did not object

       to the prosecutor’s comment regarding credibility.


                                              Acoustics and Jury

[43]   Jenkins maintains that ineffective assistance of his trial counsel resulted in a due

       process violation when Wilson did not object to “the environment, acoustics

       and audio equipment” used during trial, which produced an inaccurate or

       incomplete transcript. Appellant’s Br. at 27. The PCR court stated that

       transcription is subject to factors such as a soft-spoken witness or attorney, the

       distance of a person from the microphone, or people who talk over each other.

       PCR App. at 87. Acknowledging that the transcript contains numerous

       notations of “inaudible,” the PCR court concluded that Jenkins had failed to

       show that a complete transcript would have changed the outcome of the case.


       Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015   Page 25 of 29
       Id. In other words, Jenkins has not met his burden of proving that language

       that was not transcribed was material.


[44]   On appeal Jenkins argues that the missing language was material. Specifically,

       he argues that the record supports a finding that he did not have an impartial

       jury. Jenkins alleges that he was prejudiced because a biased potential juror,

       who stated that he would give greater weight to the testimony of a known

       officer, may have been selected as a juror; however, Jenkins could not know

       with certainty who was chosen because “inaudible” was transcribed in the place

       of the juror’s name. Trial Tr. at 125. Our review of the record before us reveals

       that Wilson engaged in extensive voir dire and thoroughly questioned potential

       jurors to root out any bias they might have against Jenkins. Moreover, Jenkins

       has not met his burden of proving that he was prejudiced by his inability to

       second guess Wilson’s selection of jury members, especially under

       circumstances where the jury acquitted Jenkins of one count of Class A felony

       child molesting and one count of Class A misdemeanor contributing to the

       delinquency of a minor. The PCR court concluded that Wilson provided

       effective assistance of counsel. Jenkins has presented no evidence that leads

       this court to come to a different conclusion.12




       12
         Jenkins also briefly mentions that bad equipment prevented the jurors from hearing testimony, thereby
       preventing him from having a fair trial. Jenkins cites to numerous cases to support his claim that he is
       entitled to a fair trial; however, he fails to present a cogent argument on this issue as required by Indiana
       Appellate Rule 46(A)(8)(a). Consequently, we find the issue waived. See Howard v. State, 32 N.E.3d 1187,
       1195 n.11 (Ind. Ct. App. 2015) (argument waived due to his lack of cogent argument).

       Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015             Page 26 of 29
[45]   The PCR court concluded that Jenkins failed to meet his burden of proving that

       Wilson provided ineffective assistance of trial counsel as to the issues discussed

       above and “in all other respects.” PCR App. at 87. We agree, and affirm the

       PCR court’s denial of Jenkins’s PCR petition alleging ineffective assistance of

       trial counsel.


                                               B. Appellate Counsel

[46]   Jenkins next asserts that his appellate counsel Gantz provided ineffective

       assistance.13 Specifically, he argues that Gantz was ineffective for failing to

       raise “every possible” significant and obvious error, as well as ones that Jenkins

       told Gantz to appeal. Appellant’s Br. at 34. The standard of review for

       ineffective assistance of appellate counsel is the same as that for trial counsel.

       Hollowell v. State, 19 N.E.3d 263, 269 (Ind. 2014). A petitioner must show that

       the representation provided by appellate counsel was, in fact, deficient and that

       the deficiency resulted in prejudice. Id. Ineffective assistance of appellate

       counsel claims generally fall into three categories: 1) denial of access to an

       appeal; 2) waiver of issues; and 3) failure to present issues well. Id. at 270.

       Petitioner’s claims fall into the second of these categories.




       13
          We note that the PCR court granted Jenkins’s petition for post-conviction relief as to one of his issues. The
       PCR court found that appellate counsel’s representation fell below an objective standard of reasonableness
       when Gantz failed to notify Jenkins of our court’s decision on direct appeal, which caused Jenkins to miss
       the deadline to file his petition to transfer the case to our Supreme Court. PCR App. at 70. The PCR court
       also found that the error was so serious that it resulted in a denial of Jenkins’s right to counsel. Id. at 104.
       Accordingly, the PCR court found Jenkins was entitled to correction of his sentence. Id. at 104, 105. This
       issue is not before this court.

       Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015             Page 27 of 29
[47]   Jenkins contends that appellate counsel had a duty to raise every issue on

       appeal. He recognizes that in order to prevail on a claim of ineffective

       assistance of appellate counsel he must show that counsel failed to present an

       issue that was significant and obvious on the record and that this failure cannot

       be explained by any reasonable strategy. Further, this failure must result in

       prejudice.


[48]   Jenkins “incorporates by reference” the claims that he made regarding trial

       counsel. Appellant’s Br. at 35. In this way, Jenkins essentially contends that

       appellate counsel was ineffective for failing to raise on appeal each alleged error

       of trial counsel. Because Jenkins did not prove that his trial counsel was

       ineffective as to the issues raised in his PCR petition, Jenkins’s argument that

       appellate counsel was ineffective for failing to raise those same issues on direct

       appeal is without merit. See Dawson v. State, 810 N.E.2d 1165, 1178 (Ind. Ct.

       App. 2004) (where defendant failed to prove that he was prejudiced by trial

       counsel’s representation, his argument that appellate counsel was ineffective for

       raising those same issues on direct appeal was without merit), trans. denied.


                                                  II. Laches
[49]   Jenkins argues that the PCR court erred in determining that his petition was

       barred by the doctrine of laches because, here, the State failed to prove by a

       preponderance of the evidence that he unreasonably delayed in seeking relief

       and that the State was prejudiced by the delay. Armstrong v. State, 747 N.E.2d

       1119, 1120 (Ind. 2001). The PCR court determined, and we have affirmed, that


       Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015   Page 28 of 29
Jenkins’s claims of ineffective assistance of trial and appellate counsel must fail.

Consequently, this issue is moot because, even if we find that Jenkins had

timely brought the appeal and is not guilty of laches, he presents no issue on the

merits justifying reversal of the PCR court’s denial of his PCR petition. See

Fisher v. State, 519 N.E.2d 539, 541 (Ind. 1988) (determining that court need not

reach issue of laches when Fisher lost on merits of PCR petition); see also

Douglas v. State, 510 N.E.2d 682, 683 (Ind. 1987) (determining that laches was

“of no legal consequence” because Douglas’s petition for post-conviction relief

was without merit).


Affirmed.


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




Court of Appeals of Indiana | Memorandum Decision 41A01-1502-PC-77 | October 14, 2015   Page 29 of 29
