MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),                                   Jan 12 2018, 6:50 am

this Memorandum Decision shall not be                                         CLERK
regarded as precedent or cited before any                                 Indiana Supreme Court
                                                                             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
Robert Taylor                                            Curtis T. Hill, Jr.
New Castle, Indiana                                      Attorney General of Indiana
                                                         James T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Taylor,                                           January 12, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1701-PC-30
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy Barbar, Magistrate
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         49G02-1504-PC-13099



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-30 | January 12, 2018             Page 1 of 13
                               Case Summary and Issues
[1]   Following a bench trial, Robert Taylor was found guilty of rape, a Class B

      felony. The trial court entered judgment of conviction and sentenced Taylor to

      seventeen years in the Indiana Department of Correction. On direct appeal, we

      affirmed Taylor’s conviction. Taylor v. State, No. 49G06-1011-FB-86868 (Ind.

      Ct. App. Sept. 18, 2012). Thereafter, Taylor, pro se, filed a petition for post-

      conviction relief which was denied by the post-conviction court. Taylor now

      appeals the denial of post-conviction relief, raising four issues which we

      consolidate and restate as (1) whether the post-conviction court erred in

      denying Taylor relief on his claim that the commissioner which presided over

      his trial committed judicial misconduct; (2) whether the post-conviction court

      erred in denying Taylor relief on his claims of prosecutorial misconduct; and (3)

      whether Taylor’s post-conviction counsel rendered ineffective assistance.

      Concluding the post-conviction court did not err and that post-conviction

      counsel was not ineffective, we affirm.



                            Facts and Procedural History
[2]   We summarized the facts and procedural history of this case in Taylor’s direct

      appeal,


              On June 27, 2009, S.S. was homeless and living in a shelter on
              10th Street near downtown Indianapolis. Late that Saturday
              morning, she was walking down 10th Street toward Pennsylvania
              Avenue to a location where she could have a free lunch in a park.
              While walking past a construction zone, a man pulled his car up

      Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-30 | January 12, 2018   Page 2 of 13
        by the curb and asked if she needed a ride. S.S. declined.
        Shortly thereafter, the man grabbed her from behind and dragged
        her up a hill where he threw her on the ground, pulled off her
        shorts and underwear, and raped her. After ejaculating inside
        her, the man then went back down the hill and drove away.


        Distraught and unable to call 911, S.S. dressed and then walked
        to the park for lunch. Several hours later, S.S. encountered a
        good friend and told her about the rape. The friend helped her
        call police. S.S. described her attacker as a black male in his
        twenties or thirties, about five feet and ten inches tall, with short
        hair and a thin build. Detective David Everman took S.S. to
        Methodist Hospital to be examined by a sexual assault nurse
        examiner (SANE). SANE Robin Brannan collected swabs from
        S.S., as well as the underwear S.S. wore after the attack. A panty
        liner was attached to the underwear. Brannan apparently did not
        notice the panty liner, as it was not separated from the underwear
        or documented. The underwear with the panty liner were bagged
        together, sealed, and included in the rape kit. Thereafter, the
        rape kit, which was stored in a locked refrigerator, was collected
        by the Marion County Crime Lab and securely stored at the lab.


        Shannin Guy, a forensic scientist with the Marion County
        Forensic Services Agency, conducted serology and DNA analysis
        on the material collected in the rape kit. Guy identified the
        presence of seminal material on the vaginal cervical swab, the
        speculum swab, the vaginal wash, and the panty liner. She then
        performed DNA analysis on a portion of the seminal material
        collected from each of these four items. Analysis revealed that
        the male DNA profiles from each item matched, identifying the
        same unknown male individual. Guy submitted the profile from
        the seminal material found on the panty liner to CODIS, which
        resulted in a match to Taylor in August 2010. After obtaining a
        buccal swab from Taylor, Guy performed further DNA analysis,
        directly matching his DNA to the seminal material found on the


Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-30 | January 12, 2018   Page 3 of 13
              vaginal cervical swab, the speculum swab, the vaginal wash, and
              the panty liner.


              Detective Everman met with S.S. on October 15, 2010 and
              presented her with a photo array. S.S. was unable to identify her
              attacker. The detective then directed her to Taylor’s picture and
              indicated that there had been a DNA match.


              On November 18, 2010, the State charged Taylor with class B
              felony rape and class D felony criminal confinement. Taylor
              unsuccessfully sought to suppress the DNA results. Following a
              bench trial on December 7, 2011, Taylor was found guilty as
              charged. A judgment of conviction, however, was entered only
              on the rape charge, and the trial court imposed an executed
              sentence of seventeen years.


      Id. at *1-2 (footnote omitted).


[3]   On January 2, 2013, Taylor filed a pro se petition for post-conviction relief and

      the court granted Taylor’s request to appoint Taylor a public defender. The

      public defender filed a withdrawal of appearance on October 29, 2014, pursuant

      to Indiana Post-Conviction Rule 1(9)(c), which allows counsel to withdraw

      from representation if “counsel determines the proceeding is not meritorious or

      in the interests of justice . . . .” Taylor subsequently withdrew his petition

      without prejudice before filing a second petition for post-conviction relief on

      June 9, 2015, to which the public defender filed a notice of non-representation.

      Taylor proceeded pro se.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-30 | January 12, 2018   Page 4 of 13
[4]   After conducting a hearing on Taylor’s second petition for post-conviction

      relief, the post-conviction court issued findings of fact and conclusions of law

      denying Taylor’s petition on November 1, 2016. Taylor now appeals.



                                 Discussion and Decision
                                      I. Standard of Review
[5]   Post-conviction proceedings are civil in nature and the petitioner must therefore

      establish his claims by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1(5). Post-conviction procedures create a narrow remedy for subsequent

      collateral challenges to convictions, and those challenges must be based on the

      grounds enumerated in post-conviction rules. Turner v. State, 974 N.E.2d 575,

      581 (Ind. Ct. App. 2012), trans. denied. “Post-conviction proceedings do not

      afford the petitioner an opportunity for a super appeal, but rather, provide the

      opportunity to raise issues that were unknown or unavailable at the time of the

      original trial or the direct appeal.” Id.


[6]   On appeal, a petitioner who has been denied post-conviction relief faces a

      “rigorous standard of review.” Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).

      We may not reweigh the evidence or reassess the credibility of the witnesses

      and we consider only the evidence and reasonable inferences supporting the

      judgment. Hall v. State, 849 N.E.2d 466, 468 (Ind. 2006). The petitioner must

      show that the evidence is without conflict and leads unerringly and

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

      court. Strowmatt v. State, 779 N.E.2d 971, 975 (Ind. Ct. App. 2002). The post-
      Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-30 | January 12, 2018   Page 5 of 13
      conviction court made findings of fact and conclusions of law as required by

      Indiana Post-Conviction Rule 1(6), and we therefore cannot affirm the

      judgment on any legal basis, but rather, we 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. We review the

      post-conviction court’s factual findings under a clearly erroneous standard. Id.


[7]   We also note that pro se litigants without legal training are held to the same

      legal standards as licensed attorneys. Basic v. Amouri, 58 N.E.3d 980, 983 (Ind.

      Ct. App. 2016). Pro se litigants must adhere to the rules of procedure and must

      be prepared to accept the consequences of their failure to do so, including

      waiver for failure to present cogent argument on appeal. Id. at 983-84. We

      must not become an “advocate for a party, or address arguments that are

      inappropriate or too poorly developed or expressed to be understood.” Id. at

      984.


                                     II. Judicial Misconduct
[8]   Taylor first claims the post-conviction court erred in denying his claim that

      Master Commissioner Marchal lacked jurisdiction to preside over his trial and

      thus committed judicial misconduct.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-30 | January 12, 2018   Page 6 of 13
[9]    Taylor’s case was originally assigned to Judge Mark D. Stoner1 who later

       assigned the case to Master Commissioner Marchal. On December 6, 2011,

       just one day before the case was set for a bench trial before Master

       Commissioner Marchal, Taylor filed a motion for Judge Stoner to hear the case

       pursuant to Indiana Code section 33-33-49-32(c). The statute provides,


                  (c) A party to a superior court proceeding that has been assigned
                  to a magistrate appointed under this section may request that an
                  elected judge of the superior court preside over the proceeding
                  instead of the magistrate to whom the proceeding has been
                  assigned. A request under this subsection must be in writing and
                  must be filed with the court:


                  ***


                           (2) in a criminal case, not later than ten (10) days after the
                           omnibus date.


                  Upon a timely request made under this subsection by either
                  party, the magistrate to whom the proceeding has been assigned
                  shall transfer the proceeding back to the superior court judge.


       Id.2


[10]   Judge Stoner signed an order granting Taylor’s motion. Exhibits at 6.

       However, at trial the next day, the parties discussed a later e-mail from Judge



       1
           This is after Taylor requested and was granted a change of judge.
       2
        Although Indiana Code section 33-33-49-32 only discusses magistrates, we held in Capehart v. Capehart, 771
       N.E.2d 657, 662 (Ind. Ct. App. 2002), trans. denied., that the statute equally applies to master commissioners.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-30 | January 12, 2018              Page 7 of 13
       Stoner denying Taylor’s motion. Without objection, Master Commissioner

       Marchal presided over Taylor’s trial and heard the parties’ presentation of

       evidence. Following the bench trial on December 7, 2011, the court’s judgment

       and sentence were pronounced by order of Judge Stoner on January 5, 2012.


[11]   In response to Taylor’s petition, the State contends (1) Taylor’s motion was

       untimely; (2) Taylor failed to preserve the issue by objecting at trial; (3) Taylor

       waived the issue by failing to present it on direct appeal; and (4) Taylor’s

       argument on post-conviction relief fails to allege resulting prejudice. On

       review, we conclude that Taylor waived any such claim by failing to present it

       on direct appeal.


[12]   It is well established that post-conviction relief is not a substitute for a direct

       appeal and freestanding claims that the original trial court committed error are

       available only on direct appeal. Martin v. State, 760 N.E.2d 597, 599 (Ind.

       2002). Here, it is clear that Taylor’s claim regarding Master Commissioner

       Marchal was known and available on direct appeal, but not raised. Taylor’s

       claim is therefore waived. Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002)

       (“It has long been held that claims available on direct appeal but not presented

       are not available for post-conviction review.”).3




       3
         Taylor also contends that the “purported judgment of conviction is invalid by virtue of having been enter
       [sic] purportedly by a court officer who has not been duly appointed.” Appellant’s Brief at 11. This issue is
       also waived for having been omitted from Taylor’s direct appeal. See Bunch, 778 N.E.2d at 1289.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-30 | January 12, 2018             Page 8 of 13
                                III. Prosecutorial Misconduct
[13]   Taylor next argues the post-conviction court erred in denying his claim of

       alleged prosecutorial misconduct in presenting improper DNA and

       identification testimony.


[14]   In reviewing a claim of prosecutorial misconduct, we determine (1) whether the

       prosecutor engaged in misconduct, and if so, (2) whether that misconduct,

       under all the circumstances, placed the defendant in a position of grave peril to

       which he or she should not have been subjected. Coleman v. State, 750 N.E.2d

       370, 374 (Ind. 2001). The “gravity of peril” is measured by the “‘probable

       persuasive effect of the misconduct on the jury’s decision, not on the degree of

       impropriety of the conduct.” Id. Although we determine that neither of

       Taylor’s claims of prosecutorial misconduct require us to reach the merits of his

       arguments, even if they did, Taylor failed to satisfy his burden on post-

       conviction relief.


                                              A. DNA Evidence
[15]   Taylor first alleges that he was “denied his due process rights where the

       prosecutor used tainted DNA evidence which consist [sic] of a sanitary napkin

       that was never establish [sic] as being worn by the victim right after this claim of

       rape.” Appellant’s Br. at 2. In response, the State argues Taylor waived a

       claim of prosecutorial misconduct by failing to present it on direct appeal and

       that the substance of Taylor’s claim is barred by res judicata. Concluding

       Taylor’s claim was available only on direct appeal, we agree with the State.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-30 | January 12, 2018   Page 9 of 13
[16]   Taylor’s claim of fundamental error neither presents newly discovered evidence

       nor argues ineffective assistance of counsel. As discussed above, post-

       conviction proceedings generally provide an opportunity to raise issues that

       were unknown or unavailable at the time of trial or the direct appeal. Turner,

       974 N.E.2d at 581. “A petitioner for post-conviction relief cannot avoid

       application of the waiver doctrine by asserting fundamental error. Rather,

       complaints that something went awry at trial are generally cognizable only

       when they show deprivation of the right to effective counsel or issues

       demonstrably unavailable at the time of trial or direct appeal.” Green v. State,

       994 N.E.2d 1276, 1280 (Ind. Ct. App. 2013), trans. denied. As with Taylor’s

       claim regarding judicial misconduct, it is clear that Taylor’s claim of

       prosecutorial misconduct was known and available but not raised on direct

       appeal. Therefore, this issue too is waived. Bunch, 778 N.E.2d at 1289.


[17]   Waiver notwithstanding, Taylor failed to satisfy his burden on post-conviction

       relief. On direct appeal, Taylor challenged the admission of DNA evidence

       obtained from the victim’s panty liner and we concluded that


               [t]o the extent one of the four DNA matches was improperly
               admitted, which it was not, the other three conclusively
               established his identity. Accordingly, any error in the admission
               of the evidence obtained from the panty liner would have been
               harmless.


       Taylor, No. 49G06-1011-FB-86868 at *3. The thrust of Taylor’s first claim

       regarding prosecutorial misconduct is the admission of the same DNA evidence

       discussed above and, as we have previously explained, any error in its
       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-30 | January 12, 2018   Page 10 of 13
       admission was harmless considering the remaining evidence of Taylor’s guilt.

       Therefore, even assuming Taylor satisfied his burden regarding the alleged

       prosecutorial misconduct, he still would not be entitled to relief. See Coleman v.

       State, 750 N.E.2d 370, 375 (Ind. 2001) (holding any error regarding alleged

       prosecutorial misconduct was harmless where there was independent evidence

       of defendant’s guilt).


                                       B. Identification Testimony
[18]   Next, Taylor alleges that the prosecutor engaged in misconduct when the victim

       was allowed to identify him at trial “after knowing that the [victim] suffered

       from a serious case of doubt about Taylor being the perpetrator of the crime[.]”

       Appellant’s Br. at 17.


[19]   Like Taylor’s argument regarding DNA evidence, this issue is one of trial court

       error which is available only on direct appeal. Martin, 760 N.E.2d at 599.

       Accordingly, it too is waived. Id. Taylor also incorporates into his argument

       several other undeveloped claims regarding the victim’s identification testimony

       which, even if fully developed so as to conform with Indiana Appellate Rule

       46(A)(8)(a), would be similarly waived as issues for direct appeal, not post-

       conviction relief.4




       4
         Although Taylor spends much of this section alleging the victim committed perjury, he also alleges the
       photo array was unduly suggestive and that he was entitled to counsel at the time the photo array was shown
       to the victim. See Appellant’s Br. 17-18.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-30 | January 12, 2018         Page 11 of 13
[20]   Waiver notwithstanding, we addressed the substance of Taylor’s argument on

       direct appeal and concluded that any error in the in-court identification was

       harmless because Taylor was “conclusively identified” by the DNA evidence.

       Taylor, No. 49G06-1011-FB-86868 at *4. This remains true and even if Taylor’s

       claim regarding prosecutorial misconduct was not waived, he has still failed to

       satisfy his burden on post-conviction relief. See Coleman, 750 N.E.2d at 375.


                                          IV. Right to Counsel
[21]   Finally, Taylor claims he was deprived of his right to effective assistance of

       post-conviction counsel under both the federal and state constitutions.5


[22]   The record reflects that Taylor was appointed a public defender after he filed his

       initial petition for post-conviction relief. The public defender subsequently filed

       a withdrawal of appearance pursuant to Indiana Post-Conviction Rule 1(9)(c),

       which allows withdrawal from representation if “counsel determines the

       proceeding is not meritorious or in the interests of justice . . . .” The public

       defender then filed a notice of non-representation in response to Taylor’s

       second petition for post-conviction relief and Taylor proceeded pro-se.


[23]   Although often unclear, it appears Taylor contends his post-conviction counsel

       “abandoned [him] in the first round.” Appellant’s Br. at 19. Taylor, however,




       5
         To the extent that Taylor claims ineffective assistance of trial and appellate counsel, we do not interpret
       these as freestanding claims because, in context, they merely form the basis for Taylor’s claim of ineffective
       assistance of post-conviction counsel.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-30 | January 12, 2018             Page 12 of 13
       fails to address the post-conviction court’s finding that “the State Public

       Defender did exactly that which the rule provided he must do.” Appellant’s

       Appendix, Volume 2 at 139. Instead, Taylor asks that we “review his claim

       under ineffective assistance of trial [sic] counsel claim under the prong test set

       forth in Strickland v. Washington[.]” Appellant’s Br. at 19.


[24]   We must, of course, decline Taylor’s invitation and we note that there is no

       federal or state constitutional right to counsel in post-conviction proceedings

       from which Strickland is derived. See Hill v. State, 960 N.E.2d 141, 145 (Ind.

       2012). “[T]he right to counsel in a post-conviction proceeding is guaranteed

       neither by the Sixth Amendment of the United States Constitution nor article 1,

       § 13 of the Constitution of Indiana.” Daniels v. State, 741 N.E.2d 1177, 1190

       (Ind. 2001). Concluding Taylor’s brief fails to advance a cogent argument

       regarding ineffective assistance of post-conviction counsel, we hold Taylor has

       waived such review. Ind. Appellate Rule 46(A)(8)(a).



                                               Conclusion
[25]   For the reasons discussed above, we conclude the post-conviction court did not

       err in denying Taylor’s petition for post-conviction relief and that Taylor did

       not receive ineffective assistance of post-conviction counsel. Accordingly, we

       affirm.


[26]   Affirmed.


       Crone, J., and Bradford, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-30 | January 12, 2018   Page 13 of 13
