      MEMORANDUM DECISION
                                                                          Apr 13 2015, 6:12 am
      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
      Sheba Sorrells                                            Gregory F. Zoeller
      Pendleton, Indiana                                        Attorney General of Indiana
                                                                James B. Martin
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Sheba Sorrells,                                           April 13, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                73A01-1411-PC-499
              v.                                                Appeal from the Shelby Superior
                                                                Court, No. 1
      State of Indiana,                                         The Honorable Jack A. Tandy,
                                                                Judge
      Appellee-Plaintiff
                                                                Case No. 73D01-0812-FB-016




      Vaidik, Chief Judge.



                                            Case Summary
[1]   In 2009 Sheba Sorrells was convicted of Class B felony sexual misconduct with

      a minor, Class C felony sexual misconduct with a minor, and Class A


      Court of Appeals of Indiana | Memorandum Decision 73A01-1411-PC-499 | April 13, 2015       Page 1 of 9
      misdemeanor contributing to the delinquency of a minor; at a bifurcated

      proceeding, Sorrells was also found to be a repeat sexual offender. Sorrells filed

      a notice of appeal but did not thereafter pursue the direct appeal. In June 2011

      Sorrells filed a pro se petition for post-conviction relief, arguing that he received

      ineffective assistance of trial counsel and that the trial court committed

      fundamental error in denying his motion to continue. Following a hearing at

      which Sorrells presented witness testimony of several family members, the post-

      conviction court issued written findings of fact and conclusions of law denying

      relief. Sorrells, pro se, now appeals.



                              Facts and Procedural History1
[2]   In 2009, following a three-day jury trial, Sheba Sorrells was convicted of Class

      B felony sexual misconduct with a minor, Class C felony sexual misconduct

      with a minor, and Class A misdemeanor contributing to the delinquency of a

      minor. These convictions came about because of acts committed against a

      teenage victim, R.M.H. At a bifurcated proceeding, Sorrells was also found to

      be a repeat sexual offender. Following sentencing the trial court advised

      Sorrells of his appellate rights and then instructed Sorrells’ attorney, G. Allen

      Lidy (“Attorney Lidy”), to preserve his appellate rights. Attorney Lidy filed a




      1
       Sorrells’ trial counsel filed a Notice of Appeal, requesting the Clerk to assemble the trial court’s record, the
      entire transcript of the jury trial, and the transcript of the sentencing hearing. See Appellant’s App. p. 147.
      However, Sorrells failed to pursue a direct appeal, and it appears that a transcript was never created. In any
      event, we do not have before us a factual record of the proceedings below.

      Court of Appeals of Indiana | Memorandum Decision 73A01-1411-PC-499 | April 13, 2015                   Page 2 of 9
      Notice of Appeal but Sorrells did not follow through on perfecting a direct

      appeal from judgment.


[3]   In 2011 Sorrells filed a pro se petition for post-conviction relief arguing that he

      received ineffective assistance of trial counsel and that the trial court committed

      fundamental error when it denied his motion to continue based on an allegedly

      late discovery by the State of a medical report. An evidentiary hearing was held

      in 2014. At the hearing, Sorrells called four witnesses to testify—his mother,

      father, grandfather, and daughter, C.H.—in support of his argument that his

      trial counsel was ineffective for failing to call these witnesses at his trial. The

      testimony of these witnesses at the post-conviction hearing revealed that

      Sorrells’ mother, brother, and grandfather had not observed and had no first-

      hand knowledge of the crimes of which Sorrells was convicted. C.H. testified

      that Attorney Lidy interviewed her before the trial and then decided not to have

      her testify. On cross-examination at the post-conviction hearing, C.H. admitted

      that in her statement to the police she had lied about Sorrells taking her and her

      friend, the teenage victim R.M.H., to a liquor store to buy alcohol because she

      “was afraid [her] dad was going to get in trouble.” P-C Tr. p. 33. C.H. also

      testified that her father told her and R.M.H., “What happens here stays here.”

      Id. at 43.


[4]   Sorrells also submitted into evidence a check for $545.72—which was admitted

      as Petitioner’s Exhibit A—from his trial counsel’s law firm, which was

      deposited into his trust account at Pendleton Correctional Facility after he filed

      the petition for post-conviction relief. At the time he offered the check into

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      evidence, Sorrells stated, “I don’t know about anyone else here, but when

      someone is given a refund of money for the job that they’ve done, I believe it’s

      because, you know, they didn’t do an adequate job.” Id. at 44.


[5]   Sorrells presented no evidence at the hearing on the trial court’s failure to grant

      his motion to continue, resulting in—as he argued in his petition for post-

      conviction relief—“fundamental error and denial of due process of law and fair

      trial.” Appellant’s App. p. 163. During closing argument, when the State

      referenced this claim from Sorrells’ petition, Sorrells interjected, “I forgot about

      that.” Tr. p. 49.


[6]   Following the hearing, the post-conviction court issued findings of fact and

      conclusions of law denying Sorrells’ petition for post-conviction relief. The

      court wrote in pertinent part:

              5) The Petition alleges fundamental error and denial of due process of
              law and fair trial because the State purposely withheld evidence from
              him and the trial court denied a requested continuance of his jury trial
              date. The Petitioner presented no evidence of withheld evidence by
              the State of Indiana or any evidence or argument related to denial of
              requested continuance of his trial.
              6) The Petitioner also alleged ineffective assistance of his trial counsel
              by failing to investigate the facts of the case, interview witnesses,
              introduce documentary evidence, and present medical expert
              testimony regarding DNA evidence. Petitioner presented four
              witnesses at the hearing. Each witness, all family members of
              Petitioner, testified they were present at the scene of the criminal
              allegations and had information related to the demeanor and
              appearance of the victim. They each testified they discussed with
              [Attorney] Lidy their anticipated testimony. None of the four
              witnesses were called to testify. Each testified [Attorney] Lidy told


      Court of Appeals of Indiana | Memorandum Decision 73A01-1411-PC-499 | April 13, 2015   Page 4 of 9
              them that their testimony was not necessary or that it would not be in
              petitioner’s best interests for them to testify.
              7) Trial counsel Lidy vigorously represented Petitioner during the
              three day jury trial.
      Appellant’s App. p. 193-94.


[7]   Sorrells now appeals.



                                 Discussion and Decision
[8]   On appeal, Sorrells argues that the post-conviction court erred in finding that he

      was not denied effective assistance of trial counsel, and he continues to

      maintain that the trial court committed fundamental error in denying his

      motion to continue his trial. In post-conviction proceedings, the petitioner

      bears the burden of proof by a preponderance of the evidence. Ind. Post-

      Conviction Rule 1(5); Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). When

      appealing from the denial of post-conviction relief, the petitioner stands in the

      position of one appealing from a negative judgment, and the standard of review

      is rigorous. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); see also Trujillo v.

      State, 962 N.E.2d 110, 113 (Ind. 2011). “To prevail on appeal from the denial

      of post-conviction relief, a petitioner must show that the evidence as a whole

      leads unerringly and unmistakably to a conclusion opposite that reached by the

      post-conviction court.” Kubsch v. State, 934 N.E.2d 1138, 1144 (Ind. 2010),

      reh’g denied. Here, the post-conviction court made findings of fact and

      conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). “A

      post-conviction court’s findings and judgment will be reversed only upon a

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      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) (citation and quotation marks omitted). “The post-conviction court is the

      sole judge of the weight of the evidence and the credibility of witnesses.” Woods

      v. State, 701 N.E.2d 1208, 1210 (Ind. 1998). Accordingly, we accept the post-

      conviction court’s findings of fact unless they are clearly erroneous, but we do

      not defer to the post-conviction court’s conclusions of law. Wilson v. State, 799

      N.E.2d 51, 53 (Ind. Ct. App. 2003).


[9]   First Sorrells alleges that he received ineffective assistance of trial counsel

      because Attorney Lidy failed to “investigate[] the scene of the crime” and didn’t

      call four “key witnesses.” Appellant’s Br. p. 5. A defendant claiming a

      violation of the right to effective assistance of counsel must establish the two

      components set forth in Strickland v. Washington, 466 U.S. 668 (1984).

      Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001). First, the defendant must

      show that counsel’s performance was deficient. Id. (citing Strickland, 466 U.S.

      at 687). 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 the defendant by the

      Sixth Amendment. Id. (internal citation omitted). Second, the defendant must

      show that the deficient performance prejudiced the defense. 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




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       been different. Id. A reasonable probability is a probability sufficient to

       undermine confidence in the outcome. Id.


[10]   Counsel is afforded considerable discretion in choosing strategy and tactics, and

       we will accord those decisions deference. Id. A strong presumption arises that

       counsel rendered adequate assistance and made all significant decisions in the

       exercise of reasonable professional judgment. Id. The Strickland Court

       recognized that even the finest, most experienced criminal defense attorneys

       may not agree on the ideal strategy or the most effective way to represent a

       client. Id. Isolated mistakes, poor strategy, inexperience, and instances of bad

       judgment do not necessarily render representation ineffective. Id. (citing

       Bieghler v. State, 690 N.E.2d 188, 199 (Ind. 1997); Davis v. State, 598 N.E.2d

       1041, 1051 (Ind. 1992); Ingram v. State, 508 N.E.2d 805, 808 (Ind. 1987)). The

       two prongs of the Strickland test are separate and independent inquiries. Id.

       Thus, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of

       lack of sufficient prejudice . . . that course should be followed.” Williams v.

       State, 706 N.E.2d 149, 154 (Ind. 1999) (quoting Strickland, 466 U.S. at 697).


[11]   At the post-conviction hearing, Sorrells called four witnesses to testify—his

       mother, father, grandfather, and daughter, C.H.—in support of his argument

       that his trial counsel was ineffective for failing to call these witnesses at his trial.

       Sorrells’ mother testified that she spoke with the victim, R.M.H., on the

       telephone “[d]uring the week in question” and R.M.H. “never said a word and

       she never acted like anything was happening.” P-C Tr. p. 8. Sorrells’ mother

       also testified that she asked Attorney Lidy if he wanted her to testify and he said

       Court of Appeals of Indiana | Memorandum Decision 73A01-1411-PC-499 | April 13, 2015   Page 7 of 9
       he didn’t need her to. Sorrells’ brother testified that he asked Attorney Lidy if

       he could testify, and Attorney Lidy had asked for an interview, but Sorrells’

       brother thought perhaps he (the brother) had not “followed through” before the

       trial. Id. at 11. Sorrells’ brother went on to testify that he had conversed with

       R.M.H. around the time of the events for which Sorrells was convicted and

       R.M.H. “showed no signs of [having been molested].” Id. at 15. On cross-

       examination, the State confirmed that Sorrells’ brother’s opinion that “it likely

       didn’t happen” was “the entire evidence [he] had in this.” Id. at 19. On cross-

       examination, Sorrells’ grandfather admitted that he had no personal knowledge

       of any of the events that led to Sorrells’ convictions.


[12]   And finally, Sorrells’ daughter, C.H., testified that Attorney Lidy had

       interviewed her before the trial and then decided not to have her testify. On

       cross-examination at the post-conviction hearing, C.H. admitted that in her

       statement to the police she had lied about Sorrells taking her and her friend, the

       teenage victim R.M.H., to a liquor store to buy alcohol because she “was afraid

       [her] dad was going to get in trouble.” P-C Tr. p. 33. C.H. also testified that

       her father told her and R.M.H., “What happens here stays here.” Id. at 43. In

       light of this testimony, it is understandable that Attorney Lidy did not believe

       that C.H. would be particularly helpful to Sorrells’ case.


[13]   Given the testimony elicited from all four witnesses at the post-conviction

       hearing, we cannot say that Sorrells has met his burden of showing a reasonable

       probability that, but for Attorney Lidy’s decision not to have these witnesses

       testify—insofar as that can be considered counsel’s “unprofessional errors”—

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       the result of the proceeding would have been different. See Strickland, 466 U.S.

       at 694; Timberlake, 753 N.E.2d at 603. Sorrells has failed to show that counsel’s

       performance fell below an objective standard of reasonableness such that

       Sorrells was denied effective assistance of trial counsel.


[14]   Next Sorrells maintains that the trial court committed fundamental error in

       denying his motion to continue after the State produced a medical report

       shortly before the trial. However, the post-conviction procedures do not

       provide a petitioner with an opportunity to consider freestanding claims that the

       original trial court committed error. Lambert v. State, 743 N.E.2d 719, 726 (Ind.

       2001), reh’g denied. Such claims are available only on direct appeal. Id. (citing

       Williams v. State, 724 N.E.2d 1070, 1076 (Ind. 2000)). Moreover, at the post-

       conviction hearing, Sorrells presented no evidence whatsoever in support of this

       contention, and the post-conviction court noted as much in its findings of fact.


[15]   We cannot say that Sorrells has shown that the evidence as a whole leads

       unerringly and unmistakably to a conclusion opposite that reached by the post-

       conviction court. See Kubsch, 934 N.E.2d at 1144.


       Affirmed.


       Kirsch, J., and Bradford, J., concur.




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