Pursuant to Ind.Appellate Rule 65(D),
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:

CAMERON WILLIAMS                                  GREGORY F. ZOELLER
Pendleton, Indiana                                Attorney General of Indiana

                                                  J.T. WHITEHEAD
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana
                                                                                FILED
                                                                            Nov 07 2012, 9:35 am

                               IN THE
                                                                                    CLERK
                     COURT OF APPEALS OF INDIANA                                  of the supreme court,
                                                                                  court of appeals and
                                                                                         tax court




CAMERON WILLIAMS,                                 )
                                                  )
       Appellant-Petitioner,                      )
                                                  )
               vs.                                )       No. 49A04-1109-PC-502
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Respondent.                       )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Steven R. Eichholtz, Judge
                     The Honorable Peggy Ryan Hart, Master Commissioner
                             Cause No. 49G20-0706-PC-116679

                                       November 7, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
        Cameron Williams appeals the denial of his petition for post-conviction relief. He

presents many issues for our consideration, which we consolidate1 and restate as:

        1.       Whether the post-conviction court abused its discretion when it denied

                 Williams’ request to subpoena two witnesses;

        2.       Whether Williams received ineffective assistance of trial counsel; and

        3.       Whether Williams received ineffective assistance of appellate counsel.

We affirm.

                            FACTS AND PROCEDURAL HISTORY

        The facts of Williams’ conviction are outlined in our decision on his direct appeal:

                On June 20, 2007, Leonard Hayes, a security guard working at a
        building at 3737 North Meridian Street in Indianapolis, observed Williams fire
        a handgun into the air. Williams was standing in front of the building when he
        fired the shots, and, at the time, there were several people sitting outside an
        adjacent building. Hayes helped those people inside to safety, and Hayes then
        followed Williams towards Pennsylvania Street. Hayes called police, who
        arrived a short time later and arrested Williams.
                The State charged Williams with two counts of carrying a handgun
        without a license, unlawful possession of a firearm by a serious violent felon,
        criminal recklessness, and being an habitual offender. The State dismissed the
        first two counts before trial; a jury convicted him on the unlawful possession
        and criminal recklessness charges; and Williams admitted to being an habitual
        offender. The trial court sentenced Williams to an aggregate twenty year

1
 Williams presents two issues we decline to address in this opinion. First, Williams argues the post-conviction
court erred when it found: “Any factual allegations regarding Mr. Zapata made in either of the two petitions,
but not addressed at either of the two hearings, are deemed withdrawn.” (App. at 46 n.1.) We are unable to
address any alleged error because the record does not contain Williams’ first post-conviction petition. See
Titone v. State, 882 N.E.2d 219, 221 (Ind. Ct. App. 2008) (the appellant “has the responsibility to present a
sufficient record in order for this court to conduct an intelligent review of the issues.”). In addition, Williams
argues the trial court abused its discretion when admitting photographs of a gun. As this alleged error was
available on direct appeal, it cannot be raised in a post-conviction petition. See Lindsey v. State, 888 N.E.2d
319, 323 (Ind. Ct. App. 2008) (issues available on post-conviction limited to ineffective assistance of counsel
and issues unavailable to petitioner on direct appeal that resulted in fundamental error), trans. denied.

                                                        2
          sentence.

Williams v. State, No. 49A05-0712-CR-704 (Ind. Ct. App. Aug. 6, 2008). On direct appeal,

Williams argued the State did not present sufficient evidence he committed criminal

recklessness and he was entitled to a new sentencing hearing because the trial court did not

ask him if he had any corrections to the presentence investigation report. We affirmed.

          Williams petitioned for post conviction relief on November 25, 2008,2 and the State

responded on January 13, 2009. Williams amended his petition on March 26, 2010. On May

7, Williams requested subpoenas for Gary Morrolf, an evidence technician who did not

testify during Williams’ trial; Anthony Zapata, Williams’ trial counsel; and Andrew Borland,

Williams’ appellate counsel. The post-conviction court granted Williams’ requests as to

Zapata and Borland, but denied his request to subpoena Morrolf. On June 11, Williams

requested the court subpoena Officer Shawn McCurdy, who was the arresting officer at the

scene of the crime. The post-conviction court also denied that request.

          On June 18, 2010, and June 24, 2011, the post-conviction court held hearings on

Williams’ petition for post-conviction relief. During the first hearing, Williams appeared pro

se, but during the second, he had counsel to represent him. The post-conviction court denied

Williams’ petition on August 25, 2011.

                                    DISCUSSION AND DECISION

          Post-conviction proceedings afford petitioners a limited opportunity to raise issues

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


2
    Williams’ original petition for post-conviction relief is not included in the record.
                                                         3
N.E.2d 441, 443 (Ind. 2002), reh’g denied, cert. denied 537 U.S. 1122 (2003). As post-

conviction proceedings are civil in nature, the petitioner must prove his grounds for relief by

a preponderance of the evidence. Id. A party appealing a post-conviction judgment must

establish that the evidence is without conflict and, as a whole, unmistakably and unerringly

points to a conclusion contrary to that reached by the post-conviction court. Id. 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 do not defer to the court’s legal conclusions, but

“the 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.” Ben-Yisrayl v.

State, 729 N.E.2d 102, 106 (Ind. 2000) (internal quotation and citation omitted), reh’g

denied, cert. denied 534 U.S. 830 (2001).

       1.     Denial of Request for Subpoenas

       When determining whether to issue subpoenas, the post-conviction court has broad

discretion, and we will reverse its decision only for an abuse of that discretion. Johnson v.

State, 832 N.E.2d 985, 994 (Ind. Ct. App. 2005), trans. denied. “An abuse of discretion has

occurred if the court’s decision is against the logic and effect of the facts and circumstances

before the court.” Id. “If the pro se petitioner requests issuance of subpoenas for witnesses

at an evidentiary hearing, the petitioner shall specifically state by affidavit the reason the

witness’ testimony is required and the substance of the witness’ expected testimony.” Ind.

Post-Conviction Rule 1(9)(b).



                                              4
       Williams requested, but was denied, subpoenas for Gary Morrolf, an evidence

technician, and Officer Shawn McCurdy, who arrested Williams. In support of his request

for Morrolf’s subpoena, Williams stated:

               [Morrolf] was the evidence technician who was responsible for finding
       the handgun in the rear of an apartment building located above an air
       conditioning unit.. [sic] Morrolf will further testify that [he] was responsible
       for running tests on the handgun and had it dusted for fingerprints. Morrolf
       will further testify that he did not testify at trial and that he was never deposed
       by the defense prior to trial.
               Evidence Technician Gary Morrolf’s testimony is required at the Post
       Conviction hearing because petitioner[’]s constitutional right to confront
       witnesses against him was violated when Gary Morrolf who was responsible
       for finding, reviewing and preparing all the evidence in this case for trial never
       testified and was never deposed prior to trial to preserve his testimony, thus
       violating the Confrontation Clause protected by the Sixth Amendment of the
       U.S. Constitution.

(App. at 171.) In support of his request for Officer McCurdy’s subpoena, Williams stated:

       5.      Ofc. Shawn McCurdy is expected to testify as follow: [sic] That he was
       arresting Officer and testified at Cameron Williams [sic] trial to all evidence
       that was presented at trial.
       6.      Ofc. Shawn McCurdy’s testimony is required for the Post-Conviction
       Relief claims because he was the Witness who the State called upon to testify
       concerning the evidence that was presented at trial.

(Id. at 176-77.)    The post-conviction court denied both subpoena requests, finding

specifically that Officer McCurdy’s testimony “would not be relevant and probative to issues

raised in this post-conviction proceedings [sic].” (Id. at 178.)

       Williams argues the post-conviction court abused its discretion when it denied the two

subpoena requests because Morrolf and Officer McCurdy’s testimonies were relevant and

probative and the denial of the subpoenas “hindered and interfered with the Pro-se, Post-


                                               5
Conviction Relief Petitioner, carrying his burden of proof by preponderance of the evidence.”

(Br. of Appellant at 19) (emphasis in original). We disagree.

       While a defendant has a Sixth Amendment right to confront the witnesses against him,

the “failure of the State to call a competent witness does not deny a defendant his

constitutional right.” Beverly v. State, 543 N.E.2d 1111, 1115 (Ind. 1989). The State cannot

be compelled to call witnesses at the insistence of the accused, and a defendant has the

burden of seeing that witnesses who may have aided in his defense were called. Id. Because

Williams did not call Morrolf as a witness, Williams was not denied his Sixth Amendment

right. Therefore, the post-conviction court did not abuse its discretion when it denied

Williams’ request to subpoena Morrolf because Williams’ only argument in his request for

the subpoena implicated the violation of his Sixth Amendment rights, which we hold were

not violated.

       Additionally, Williams argues the post-conviction court erred when it did not make a

finding supporting its denial of his request to issue a subpoena for Morrolf. P-C.R. 1(9)(b)

states, in relevant part:

       If the pro se petitioner requests issuance of subpoenas for witnesses at an
       evidentiary hearing, the petitioner shall specifically state by affidavit the
       reason the witness’ testimony is required and the substance of the witness’
       expected testimony. If the court finds the witness’ testimony would be
       relevant and probative, the court shall order that the subpoena be issued. If the
       court finds the proposed witness’ testimony is not relevant and probative, it
       shall enter a finding on the record and refuse to issue the subpoena.

As there is only one reason the post-conviction court could deny Williams’ request, that is,

the testimony would be irrelevant and not probative, we conclude the post-conviction court

                                              6
implicitly made that finding in its order denying Williams’ request for subpoena. See Perdue

Farms, Inc. v. Pryor, 683 N.E.2d 239, 240 (Ind. 1997) (the appellate court presumes the

lower court knows and correctly applies the law).

       Nor did the post-conviction court abuse its discretion when it denied Williams’

request to subpoena Officer McCurdy. The post-conviction court found Officer McCurdy’s

testimony would not be relevant and probative. Furthermore, Williams’ proffered reason for

needing a subpoena was too vague to satisfy P-C R. 1(9)(b). Therefore, we cannot say the

post-conviction court abused its discretion when it denied Williams’ request for a subpoena

of Officer McCurdy.

       2.     Ineffective Assistance of Trial Counsel

       We review claims of ineffective assistance of counsel under the two-part test in

Strickland v. Washington, 466 U.S. 668, 687 (1984), reh’g denied. To prevail, a claimant

must show counsel’s performance fell below an objective level of reasonableness based on

prevailing professional norms, Taylor v. State, 882 N.E.2d 777, 781 (Ind. Ct. App. 2008), and

the deficient performance resulted in prejudice. Id. “Prejudice occurs when the defendant

demonstrates that ‘there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.’” Grinstead v. State, 845

N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466 U.S. at 694). We need not consider

whether counsel’s performance fell below the objective standard if that performance would

have not changed the outcome. Strickland, 466 U.S. at 687.



                                             7
       In his amended petition for post-conviction relief, Williams alleged his trial counsel,

Anthony Zapata, was ineffective:

       9A(1) Petitioner contends that he received ineffective assistance of counsel
       when counsel failed to object to the admission of evidence procured by the
       State through hearsay testimony (2) Petitioner[’]s trial attorney was ineffective
       for not objecting to the hearsay testimony of officer Shawn McCurdy who the
       State used a [sic] foundation for the admission of pictures of the evidence after
       the evidence technician Gary Morrolf who was responsible for finding the
       handgun, had the handgun dusted for fingerprints, took pictures of [the] crime
       scene and performed other duties in preparation for trial was not available to
       testify. Petitioner contends that if his trial counsel had objected to the
       admission of the evidence through State[’]s witness Mark [sic] McCurdy, the
       Court would have had no alternative but to sustain he [sic] objection because
       the State never satisfactorily explained the absence of evidence technician
       Gary Morrolf and petitioner never had an opportunity to confront and cross
       examine Morrolf prior to trial. (3) Petitioner[’s] trail [sic] counsel was
       ineffective for not responding and satisfying the juror question as to whether or
       not the handgun had been dusted for fingerprints. ? (See TR. At page 58)
       Petitioner contends that his trial counsel had in his possession, a document
       from the Marion County Prosecutors office clearly stating that evidence
       technician Gary Morrolf had found a ridge mark on the handgun and had it
       tested for identification purposes but it was unidentifiable to any specific
       person. (See Exhibit A). Petitioner contends that for his trial counsel to allow
       the jury to be left guessing as to whether or not his client[’]s prints was [sic] on
       the gun when trial counsel could have satisfied their question by producing the
       document that was in his possession points to deficient performance and a
       deliberate attempt to deprive petitioner of his right to present exculpatory
       evidence in his favor at a critical state of the proceeding[.]

(App. at 122-23) (emphasis and formatting mistakes in original).

              a.      Fingerprint evidence

       During the post-conviction hearings, Williams and his post-conviction counsel

questioned Zapata regarding these issues, and Zapata consistently stated his decisions were a

part of his trial strategy to keep the gun out of evidence and to create doubt in the jury’s mind


                                                8
regarding identifying marks on the gun. The post-conviction court found:

               The court does not consider Mr. Zapata’s tactics to have been
       ineffective. Although the testing of the fingerprint card did not show that
       Petitioner had touched the firearm, it did not show that he did not touch it,
       either. Given the eyewitness testimony about the gloves, the gloves
       themselves and Petitioner’s statement about fingerprints, putting Ofc. Morrolf
       on the stand to testify about fingerprints would had [sic] had, at best, a neutral
       effect on Petitioner’s defense, and at worst helped the State win the conviction.
               As to failure to depose the evidence technician, failure to enter the
       fingerprint report into evidence, failure to answer a jury question about
       fingerprints, and failure to ask for a continuance when the evidence technician
       was unavailable to testify at trial, the Court finds that trial counsel did not
       make errors so serious that he was not functioning as ‘counsel’ guaranteed to
       the defendant by the Sixth Amendment to the United States Constitution.
       Additionally, Petitioner has failed to present any evidence sufficient to prove
       the likelihood of a better outcome at trial, had trial counsel done anything
       differently as to these matters. The court therefore finds that Petitioner has not
       proven prejudice.

(Id. at 47-48) (emphasis in original).

       In his petition and on appeal, Williams appears to argue his trial counsel was

ineffective because he did not introduce allegedly exculpatory fingerprint evidence through

the testimony of Morrolf or request a continuance when it was discovered Morrolf was not

available to testify. Zapata indicated he did not interview Morrolf, call Morrolf as a witness,

or request a continuance based on Morrolf’s absence because

       if [the Prosecutors] give me a witness list and if they’re missing witnesses,
       that’s in my Defendant’s favor. . . . [I]f I would have subpoenaed [Morrolf],
       then [the State] would have had the gun in and then [the State] would have had
       at least the identification of that document with the prints in. So our goal was
       to keep the gun out as best as possible and argue the identification issue with
       it.




                                               9
(Tr. at 23-24.) In the absence of fingerprint evidence, the State presented evidence Williams

had a brown work glove when he was arrested, which suggested he was wearing gloves when

the gun was fired and thus no fingerprints would be found. An eyewitness identified

Williams as the shooter. Williams has not demonstrated Zapata deviated from a consistent

trial strategy in a way that prejudiced Williams’ defense.

              b.     Objection

       To show ineffective assistance based on failure to make an objection, a petitioner must

demonstrate that the trial court would have sustained the objection. Glotzbach v. State, 783

N.E.2d 1221, 1224 (Ind. Ct. App. 2003). The petitioner must also establish prejudice by

counsel’s failure to properly object. Timberlake v. State, 690 N.E.2d 243, 259 (Ind. 1997),

reh’g denied, cert. denied 525 U.S. 1072 (1999).

       Regarding Williams’ claim Zapata was ineffective because he did not object to certain

evidence introduced by the State, the post-conviction court found:

              That leaves the matter of Mr. Zapata’s failure to object to the admission
       of the State’s evidence at trial. At the first hearing, Petitioner asked Mr.
       Zapata why he had failed to object. Mr. Zapata stated that he did not have an
       independent recollection of objecting, or not objecting, to the State’s evidence
       and had not yet seen a transcript of the trial. Petitioner did not specify what
       evidence Mr. Zapata should have objected to, and the subject was not raised
       again at the second hearing. In the absence of any evidence to support
       Petitioner’s argument, the Court finds that Petitioner has failed to prove that
       Mr. Zapata was ineffective for failing to object to the State’s evidence, and he
       has also failed to prove how he was prejudiced by it.

(App. at 48.) Williams argues the post-conviction court’s finding is not supported by the

evidence presented, as he asked Zapata specifically about his failure to object to the State’s


                                             10
admission of Officer McCurdy’s testimony about the gun found at the scene and the

photographs of the gun. While we agree the post-conviction court’s reasoning for its finding

is erroneous, the result is nonetheless the same.

       During the first post-conviction hearing, the following exchange occurred between

Williams, proceeding pro se, and Zapata:

        [Williams]: Now, do you recall whether you did or not, object to the
                    testimony of Officer McCurdy when the State used him to admit
                    the photographs of the gun when you knew that he was not
                    testifying from personal knowledge?
       [Zapata]:    If believe they introduced the photographs, right? Is that what
                    you’re saying?
       [Williams]: Yes.
       [Zapata]:    I don’t remember. I think I stipulated to the photographs being
                    introduced.
       [Williams]: Okay.
       [Zapata]:    Which means I didn’t object I don’t think.
       [Williams]: Do you know what the legal definition is of testimony when a
                    witness testifying under oath is not testifying from personal
                    knowledge about facts - -
       [Zapata]:    Do you mean - -
       [Williams]: Excuse me?
       [Zapata]:    Do you mean hearsay?
       [Williams]: Right
       [Zapata]:    Yeah. But he had personal knowledge because he saw the gun
                    and would have been able to introduce it through the pictures as
                    far as an accurate representation of what he saw when the
                    technician sent him to the scene.

(Tr. at 48-49.) The transcript of Williams’ trial supports Zapata’s contention that the

photographs were properly admitted as representations of what Officer McCurdy saw the

date of the crime, and thus an objection to their admission would not have been sustained.

See Ind. Evid. Rule 401 (evidence is relevant if it tends to prove or disprove a fact of


                                             11
consequence) and Evid. Rule 901(a) (authentication of evidence is achieved by testimony

indicating the evidence offered is what is purports to be).

       Therefore, while the post-conviction court erroneously found Williams did not specify

the evidence to which he alleged Zapata should have objected, the result is same – Williams

did not demonstrate Zapata was ineffective because had Zapata made an objection to the

photographs of the gun, the objection likely would not have been sustained.

       3.     Ineffective Assistance of Appellate Counsel

       We review claims of ineffective assistance of appellate counsel using the same

standard applicable to claims of trial counsel ineffectiveness. Fisher v. State, 810 N.E.2d

674, 676-77 (Ind. 2004). The defendant must show that appellate counsel was deficient in

his performance and that the deficiency resulted in prejudice. Id. at 677. Ineffective

appellate assistance 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. We employ a two-part

test to evaluate “waiver of issue” claims: (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.

       Because counsel has considerable discretion in choosing strategy and tactics, we

presume counsel’s assistance was adequate and all significant decisions were made in the

exercise of reasonable professional judgment. State v. Miller, 771 N.E.2d 1284, 1288 (Ind.

Ct. App. 2002), reh’g denied, trans. denied. One of the most important strategic decisions is

deciding what issues to raise on appeal. Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1998),

                                             12
reh’g denied, cert. denied 525 U.S. 1021 (2003).

       Williams argues his appellate counsel, Andrew Borland, was ineffective because

Borland did not challenge Williams’ conviction of unlawful possession of a firearm by a

serious violent felon. Regarding this issue, the post-conviction court found:

              Appellate Counsel Andrew Borland testified only at the second hearing.
       He was asked why he had not raised the issue of gun possession in Petitioner’s
       appeal. Mr. Borland stated that he did not believe there had been a viable issue
       for appeal regarding that offense. The Court agrees.
              Although not alleged in either of the petitions, Mr. Borland was asked
       several questions about the nature of the State’s evidence. Petitioner, now
       represented by counsel, appeared to characterize the State’s evidence as being
       entirely circumstantial in nature. The Court notes that the State had an
       eyewitness, Leonard Hayes, who saw Petitioner fire the gun in question.
       Eyewitness testimony is direct evidence, not circumstantial.
              No other evidence was submitted by Petitioner to support this claim and
       the Court finds that Mr. Borland did not make errors so serious that he was not
       functioning as ‘counsel’ guaranteed to the defendant by the Sixth Amendment
       to the United States Constitution. Nor has Petitioner proven that he was
       prejudiced by Mr. Borland’s representation.

(App. at 49) (footnotes and citation omitted).

       On appeal, Williams offers no argument or authority to support the premise Borland

should have raised on appeal the issue of sufficiency of the evidence to support Williams’

conviction of unlawful possession of a firearm by a serious violent felon. Therefore,

pursuant to Ind. Appellate Rule 46(A)(8)(a), Williams’ claim of ineffective assistance of

appellate counsel is waived for failure to make a cogent argument and cite to relevant

authority.




                                             13
                                       CONCLUSION

       We hold the post-conviction court did not abuse its discretion when it denied

Williams’ requests to subpoena Morrolf and Officer McCurdy because Williams did not

demonstrate either witness would provide relevant testimony.        Nor has Williams

demonstrated his trial or appellate counsel was ineffective. Accordingly, we affirm the

denial of his petition for post-conviction relief.

       Affirmed.

KIRSCH, J., and NAJAM, J., concur.




                                              14
