                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                              Jul 17 2012, 9:20 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                          CLERK
                                                                    of the supreme court,
                                                                    court of appeals and
                                                                           tax court




APPELLANT PRO-SE:                                ATTORNEYS FOR APPELLEE:

ROBERT SPEARS                                    GREGORY F. ZOELLER
Michigan City, Indiana                           Attorney General of Indiana

                                                 ANN L. GOODWIN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ROBERT SPEARS,                                   )
                                                 )
       Appellant-Petitioner,                     )
                                                 )
              vs.                                )      No. 49A05-1103-PC-110
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Respondent.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Steven R. Eichholtz, Judge
                       The Honorable Michael S. Jensen, Magistrate
                           Cause No. 49G20-0510-PC-184297



                                       July 17, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
      Appellant-petitioner Robert Spears appeals the denial of his petition for post-

conviction relief, claiming ineffective assistance of both trial and appellate counsel.

Spears also argues that he was denied due process of law because he claims that the

prosecutor, trial judge, and police officers all engaged in misconduct. Finally, Spears

contends that he is entitled to a new trial on the basis of newly discovered evidence.

Concluding that Spears has failed to show that he received ineffective assistance of

counsel and finding no other error, we affirm the judgment of the post-conviction court.

                                         FACTS

      The facts, as reported in Spears’s direct appeal, are as follows:

      Spears regularly sold tablets of hydrocodone (Vicodin) and alprazolam
      (Xanax) to his niece, Shannon Welsh, for over a year. Welsh also
      occasionally sold pills she obtained from Spears to other persons and gave
      the proceeds to Spears. Welsh knew that Spears had his prescriptions for
      the drugs filled towards the end of each month, and the two would arrange
      to meet shortly thereafter for Welsh to obtain some pills. Sometimes Welsh
      initiated the contact, and sometimes Spears did.


      At some point, Welsh and her family obtained a protective order against
      Spears because of allegedly threatening behavior towards them. Welsh and
      her family contacted law enforcement for assistance with Spears’s alleged
      threats. Indianapolis Metropolitan Police Department (“IMPD”) Detective
      Noble Duke met with Welsh and her family several times to discuss Spears.
      At one of these meetings, Welsh told Detective Duke about Spears selling
      controlled substances. Eventually, Welsh agreed to make a controlled buy
      of drugs from Spears as a way “to try to help [Welsh’s family] with their
      problems.” Tr. p. 286.


      On October 25, 2005, Welsh contacted Detective Duke to let him know that
      Spears probably had medication in his possession. Welsh went to an IMPD
      district office, where she was thoroughly searched by a female officer.

                                            2
Officers also thoroughly searched Welsh’s vehicle. No contraband was
found on Welsh or in her car. She was given money that was photocopied
beforehand and outfitted with a transmitting device.


Welsh drove directly to Spears’s home in Indianapolis, followed by IMPD
officers. Detective Duke parked where he could see the rear of Spears’s
home and another group of officers were parked where they could see the
front. When Welsh pulled up to Spears’s house he was standing outside.
Welsh asked Spears if he had any pills, and Spears responded that he
wanted to drive around the block to see if there were any police officers
observing them. Spears drove around the block in his truck, with Welsh
following in her car. Officers observed Welsh driving, although they
temporarily lost sight of her at one point. At the end of the block, Welsh
drove up beside Spears and told him she did not see anybody, and they both
drove back to Spears’s house and went inside.


No one else was inside the home aside from Welsh, Spears, and Spears’s
four-year-old son. Officers could not directly see Spears’s back door for
some of the time Welsh was inside, but over the transmitter they heard no
one enter the house while Welsh was there. Welsh again asked if Spears
had any pills for sale, and he said that he did. She requested ten Xanax and
six Vicodin pills, which he gave to her in exchange for fifty dollars.


Welsh then left and drove directly to a pre-arranged location, followed by
Detective Duke. Welsh gave Detective Duke six pills containing
hydrocodone, a schedule III controlled substance, and nine pills containing
alprazolam, a schedule IV controlled substance. A search of Welsh and her
vehicle uncovered no other contraband. Police then went to Spears’s house
and arrested him. During a search incident to arrest, officers found on
Spears’s person two prescription bottles containing hydrocodone and
alprazolam, and cash that matched the buy money provided to Welsh.


The State charged Spears with Class B felony dealing in a schedule III
controlled substance and Class C felony dealing in a schedule IV controlled
substance. Spears moved to suppress evidence recovered after his arrest,
contending the arrest was not supported by probable cause because the


                                     3
       controlled buy was not conducted properly. The trial court denied the
       motion to suppress.

Spears v. State, No. 49A02-0708-CR-696 (Ind. Ct. App. Sep. 25, 2008).

       Defense counsel Mary Zahn filed several pretrial motions on Spears’s behalf and

represented him at various pre-trial hearings and at trial. Prior to trial, the defense

deposed Welsh, Detective Duke, and three other law enforcement officers that were

involved in the controlled buy.

       On October 24, 2006, Zahn filed a motion of intention to introduce evidence that

Welsh had perpetrated several offenses after her involvement in the controlled buy, that

she had not been prosecuted for those crimes, and that Detective Duke lied at his

deposition when he denied that he knew about Welsh’s alleged crimes. Spears argued

that this evidence was admissible to impeach both Welsh and Detective Duke.

       Zahn represented Spears at the first hearing on the motions that was held on

December 6, 2006. Zahn questioned Detective Duke about possible defects regarding the

transaction and the poor quality of the recording of the buy. Zahn also argued that a gun

clip that Welsh had attempted to bring into Spears’s home should be admitted at trial to

show that the police were trying to entrap Spears on a gun charge that would expose him

to federal prosecution.

       The State argued that if such evidence were allowed, it would open the door to the

admission of Spears’s criminal history. The trial court ruled that the gun clip evidence

was not relevant to this case, and Spears was cautioned that bringing in evidence of the


                                           4
gun clip would expose Spears to the admission of additional evidence that would harm

him.

       Zahn represented Spears at a second hearing on February 28, 2007.              Zahn

questioned Welsh and two police officers who were involved in the case about alleged

gaps in the controlled buy. The trial court subsequently denied Spears’s motion to

suppress, finding that the buy was sufficiently controlled and that the police officers had

probable cause to arrest Spears and search him.

       Spears’s jury trial commenced on June 21, 2007. The State filed a motion in

limine seeking to exclude any reference to, among other things, “allegations of criminal

activity involving [Welsh] which did not result in arrest and conviction” or any allegation

that Welsh received favorable treatment for her cooperation in this case. Appellant’s

App. p. 1159-60. The trial court granted a portion of the State’s motion after Zahn

asserted that it was Spears’s intention to make an offer of proof concerning those issues

at trial. The trial court also granted the State’s request to limit evidence of Welsh’s drug

use to the day of the controlled buy.

       Welsh initially indicated to the trial court that she would not testify. However,

after conferring with the prosecutor, she elected to testify. Zahn confirmed that Welsh

had not been promised leniency or other assistance in exchange for her testimony. Zahn

then impeached Welsh with the fact that she had a prior robbery conviction.

       Zahn also developed evidence through Welsh that he and Detective Duke had

planned the controlled buy to eliminate problems that Welsh and her family were

                                             5
experiencing with Spears. Welsh admitted that she was an extensive drug abuser when

the controlled buy occurred. Welsh admitted that Detective Duke had come unsolicited

to her home to speak to her and that Spears did not offer her any pills during the actual

buy. Zahn then impeached Welsh with her deposition testimony that differed from her

trial testimony about Spears’s location when Welsh arrived at his home, where Welsh had

placed the pills after receiving them from Spears, whether Welsh was searched after the

buy, and whether her vehicle was searched following the transaction.

       Zahn established through Detective Duke that he had never worked with Welsh

before, that Spears had been providing Welsh with pills for a year, and that Duke was

acting with Welsh’s family to help solve their problems with Spears. Zahn also probed

what Spears alleged were defects in the controlled buy.

       Zahn impeached Detective Duke with his deposition testimony as to whether he

had searched Spears inside or outside the residence.       Zahn also impeached another

officer, Chris Reed, about whether he had initially testified in his deposition that only

pills were found on Spears and not the buy money.         During the testimony of Welsh,

Detective David Miller, and Detective Duke, Zahn objected to the admission of the pills

or the buy money into evidence on the same grounds that had been argued in the motion

to suppress.

       Zahn argued at trial that evidence that Welsh had been involved in the ransacking

of Spears’s home should be admitted into evidence to establish Welsh’s motivation for

participating in the buy. The trial court determined that evidence about the prior dealings

                                            6
among Spears’s family, including ransacking the residence, was not relevant to the

instant charge.

       Thereafter,

       Spears renewed his objection to the introduction of evidence—the
       prescription pill bottles and cash—recovered during the search incident to
       arrest. Spears also objected to the introduction of a recording of the audio
       transmissions during the controlled buy on the basis that it was largely
       inaudible. The trial court overruled the objection, and also permitted a
       transcript of the recording to be provided to the jury while it was played in
       court, but the transcript was not introduced into evidence. Before the
       recording was played, Spears requested that it be played in its entirety.
       Later, Spears requested the jury to be admonished that some parts of the
       recording were inaccurate; Spears was concerned about references to other
       alleged criminal activity by him. The trial court refused to give the
       admonishment, noting that Spears had requested that the entire recording be
       played to the jury.

       Spears, slip op. at 5. Welsh and Spears were discussing some of the “bad blood”

that was occurring in the family, including the ransacking of Spears’s home on the

recording. Tr. p. 418. Spears decided to testify at trial against Zahn’s advice. Spears

admitted that Welsh had asked him for pills, that he quoted her a price for the drugs, that

Welsh had produced money for the pills, and that she left with pills.

       Following the presentation of evidence, the jury found Spears guilty as charged.

The trial court sentenced Spears, who has an extensive criminal history, to twenty years

on the Class B felony dealing conviction and to eight years on the Class C felony dealing

conviction, to be served consecutively.

       On direct appeal, Spears was represented by attorney Katherine Cornelius, who

presented the following four issues:

                                             7
          I.      whether the trial court properly admitted evidence recovered after
                  Spears’s arrest;

          II.     whether the trial court properly admitted a recording of a controlled
                  buy;

          III.    whether there was sufficient evidence to rebut Spears’s entrapment
                  defense; and

          IV. whether Spears’s sentence is inappropriate.

We affirmed Spears’s convictions, but revised his sentence and ordered his individual

sentences to be served concurrently rather than consecutively. Id., slip op. at 12-14.

          On October 28, 2009, Spears filed an amended petition for post-conviction relief,1

and evidentiary hearings were conducted in June 2010. Zahn testified that her strategy

regarding the cross-examination of the officers involved in the controlled buy was to

review the depositions and suppression testimony of the police officers and ask them

about inconsistencies between that testimony and their trial testimony. Zahn did not

believe that introducing the depositions and suppression hearing transcripts themselves

was the proper method of impeaching the officers.

          For instance, Zahn reviewed Detective Duke’s deposition and suppression hearing

testimony and prepared to impeach him at trial. Zahn did not impeach Detective Duke on

every inconsistency between his trial and previous testimony as a matter of strategy

because she believed that some of Detective Duke’s responses at trial were beneficial to

Spears.



1
    Spears previously filed petitions for post-conviction relief on November 26, 2008, and July 24, 2009.
                                                      8
       Zahn’s theory at trial was to pursue an entrapment defense based solely on the

pills. Zahn did know about the gun clip and realized that Spears wanted to introduce

evidence about it at trial. However, Zahn decided not to present evidence about the gun

clip because she believed that such evidence would have opened the door as to Spears’s

criminal history, including a prior federal firearm conviction.

       Zahn also wanted to prevent the admission of the recording of the controlled buy

into evidence because it was inaudible. Zahn further planned to have admitted evidence

of Welsh’s prior bad acts into evidence, but she felt constrained by the trial court’s grant

of the State’s motion in limine. Zahn believed that her strategy was sound, that they were

“in a good position,” and she did not call any of Spears’s witnesses as a result. Tr. p.

203-04.

       Cornelius testified that she remembered not raising the State’s failure to rebut

Spears’s specific gun entrapment theory because there was no evidence at trial to support

that claim. Spears introduced a United States Department of Justice press release at the

post-conviction hearing reporting that Detective Duke pleaded guilty and had been

sentenced in June 2008, to community corrections, home detention, and community

service for obstruction of justice for unlawfully disclosing the contents of federally

authorized wiretap information. Welsh also attempted to recant her trial testimony.

       The deputy prosecutor who tried Spears’s case testified that no charges had been

filed against Welsh for the alleged crimes she committed after agreeing to participate in

the controlled buy and that Welsh did not receive anything in exchange for her testimony

                                             9
at Spears’s trial. The deputy prosecutor also acknowledged that Spears had deposed all

of the police officers involved in the investigation of the crimes in which Welsh was

allegedly involved. The police officers confirmed that no criminal charges had been filed

against Welsh and that no consideration had been given to her in exchange for the State’s

decision not to charge Welsh.

      The post-conviction court denied Spears’s request for relief on February 22, 2011.

The post-conviction court determined, among other things, that Welsh’s testimony at the

post-conviction hearing was “not credible,” in light of her prior testimony at the

suppression hearing and at trial, and given the internal inconsistencies in her post-

conviction testimony. As to Detective Duke, the post-conviction court determined that

Spears had failed to show that the purported newly discovered evidence was material or

relevant to his case. Finally, the post-conviction court determined that neither trial

counsel nor appellate counsel were ineffective. Spears now appeals.

                            DISCUSSION AND DECISION

                I. Standard of Review Generally; Post-Conviction Relief

      The petitioner in post-conviction proceedings bears the burden of establishing the

grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);

Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing from the denial of

post-conviction relief, the petitioner stands in the position of one appealing from a

negative judgment. Id.    On review, we will not reverse the judgment of the post-

conviction court unless the evidence as a whole unerringly and unmistakably leads to a

                                           10
conclusion opposite that reached by the post-conviction court. Id. Put another way, the

defendant must convince us that there is “no way within the law that the court below

could have reached the decision it did.” Stevens v. State, 770 N.E.2d 739, 745 (Ind.

2002). 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. Fisher, 810 N.E.2d at 679. In this review, findings of fact are

accepted unless they are clearly erroneous and no deference is accorded to conclusions of

law. Id. The post-conviction court is the sole judge of the weight of the evidence and the

credibility of witnesses. Id.

                                   II. Spears’s Claims

                        A. Ineffective Assistance of Trial Counsel

       Spears claims that his petition for post-conviction relief should have been granted

because Zahn, his trial counsel, failed to properly investigate the facts and circumstances

of the case regarding the defense of entrapment, did not properly cross-examine and

impeach the police officers and the confidential informant, and failed to lodge proper

objections at trial.   Spears further contends that Zahn failed to interview potential

witnesses on his behalf.

       In addressing Spears’s contentions, we initially observe that he must establish the

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

Specifically, a defendant must show that counsel’s performance was deficient. Id. at 687.

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

                                            11
reasonableness and that “counsel made errors so serious that counsel was not functioning

as ‘counsel’ guaranteed to the defendant by the Sixth Amendment.” Id. In other words,

the standard asks whether, “considering all the circumstances,” counsel’s actions were

“reasonable[] under prevailing professional norms.” Id. at 688.

      Second, a defendant must show that the deficient performance prejudiced the

defense. This requires a showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial, that is, a trial where the result is reliable. 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.”

Id. at 694. A reasonable probability is one that is sufficient to undermine confidence in

the outcome. Id. We “strongly presume” that counsel provided adequate assistance and

exercised reasonable professional judgment in all significant decisions. McCary v. State,

761 N.E.2d 389, 392 (Ind. 2002).

      Trial counsel should be afforded considerable discretion in the choice of strategy

and tactics. Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001). Counsel’s conduct is

assessed based upon the facts known at the time and not through hindsight. State v.

Moore, 678 N.E.2d 1258, 1261 (Ind. 1997).          We do not “second-guess” strategic

decisions requiring reasonable professional judgment even if the strategy in hindsight did

not serve the defendant’s interests. Id. In other words, trial strategy is not subject to

attack through an ineffective assistance of counsel claim, unless the strategy is so



                                           12
deficient or unreasonable as to fall outside of the objective standard of reasonableness.

Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).

                                   1. Cross-Examination

       As for Spears’s contention that Zahn failed to accurately impeach the police

officers for alleged inconsistencies among the depositions, suppression hearing, and trial

testimony, we initially observe that the nature and extent of cross-examining a witness is

a matter of trial strategy that is left to trial counsel. Waldon v. State, 684 N.E.2d 206,

208 (Ind. Ct. App. 1997).

       The record shows that Zahn prepared for cross-examination by reading the State’s

witnesses’   deposition     and   suppression    hearing   testimony.   Zahn    identified

inconsistencies, particularly regarding the various “controls” that pertained to the buy,

and cross-examined the State’s witnesses about them. Tr. p. 127-35, 292-305. Zahn

impeached Welsh, Detective Duke, and another officer with inconsistencies between their

deposition and trial testimony. Id. at 127-35, 314-15, 381, 384. As noted above, Zahn

chose not to impeach Detective Duke with every inconsistency between his previous

testimony and his trial testimony because she believed that some of Detective Duke’s

trial testimony was favorable to Spears.

       In short, the record demonstrates that Zahn’s cross-examination strategy was a

deliberate choice that we will not second guess, and Spears has failed to rebut the strong

presumption that Zahn’s cross-examination was a reasonable exercise of professional

judgment. Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002). As a result, the post-

                                            13
conviction court did not err in denying Spears’s petition for post-conviction relief on this

basis.

                                            2. Gun Clip

         Spears next maintains that Zahn failed to introduce evidence of the gun clip as part

of the entrapment defense. Notwithstanding this contention, Zahn’s trial strategy was to

pursue the entrapment defense using only evidence concerning the pills. Zahn developed

this theory through Welsh’s testimony that she worked with Detective Duke to eliminate

problems that Welsh and her family were having with Spears, and Detective Duke also

echoed this theory during his cross-examination. Tr. p. 113-15, 286. Zahn also had

Welsh admit that Detective Duke had contacted her, and Zahn elicited testimony from

Detective Duke that his sole source of information regarding the fact that Spears had been

supplying Welsh with pills for a year was Welsh—someone with whom Detective Duke

had never worked before. And the entrapment defense was the theme of Zahn’s closing

argument.

         Zahn knew about the gun clip and Spears’s opinion about it. However, the record

shows that Zahn made a conscious decision not to pursue a defense strategy that involved

the gun clip because such evidence could have opened the door to evidence of Spears’s

criminal history, including the fact that he had recently served an executed sentence for a

federal gun-related conviction.     In our view, Zhan’s strategy was not unreasonable,

because that evidence would have negatively impacted Spears’s credibility. Moreover,

Spears has failed to show that the gun clip had much—if any—relevance to the drug

                                              14
charges that he was facing. And Spears’s claim of prejudice consisted only of his

unsupported claim that had the jury known about the gun clip, he would have been

acquitted. Such bald assertions do not meet a petitioner’s burden on appeal to show, by a

preponderance of the evidence, prejudice as a result of purported professional errors.

Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). For all of these reasons, Spears’s

claim of ineffective assistance of counsel fails with regard to evidence involving the gun

clip.

                            3. Statements, Depositions, and Transcripts

        Spears also claims that Zahn was ineffective because she should have entered the

statements, depositions, and testimony of unspecified witnesses into evidence so they

could have been properly impeached. However, Zahn did not believe that admitting the

documents themselves into evidence was the proper method of impeaching the witnesses.

Indeed, Zahn cross-examined the witnesses, and Spears has failed to show that this

method of impeachment was improper. Again, we will not second guess Zahn’s strategy,

and Spears’s claim fails.

         4. Characterization of Evidence and Re-assertion of Motion to Suppress;
                                   Co-Counsel Request


        Spears makes the apparent assertion that some of Zahn’s statements were

misleading because those statements were contradicted by deposition testimony of

witnesses. However, many of the statements involved Zahn’s questioning of witnesses

to develop evidence before the jury. Moreover, Spears’s alleged claims about Zahn’s

                                            15
improper statements are not supported by citation to the record. Thus, the claims are

waived because Spears has failed to provide a cogent argument in support of his

contention. See Bonner v. State, 776 N.E.2d 1244, 1247 n.3 (Ind. Ct. App. 2002)

(holding that a party waives an issue on appeal when a cogent argument is not developed

or when there is not adequate citation to the record or to supporting authority).

       As for the motion to suppress, Spears contends that Zahn failed to object at trial

and reassert the argument at trial. However, the record shows that Zahn did object at trial

but the objections were overruled. In short, Zahn preserved the issue for appeal, and we

did, in fact, address the issue in Spears’s direct appeal. Spears, slip op. at 3-5.

       Finally, Spears asserts in one sentence that Zahn was ineffective because she

failed to enter a motion for him to act as co-counsel. However, it is clear that a defendant

has no right to hybrid representation in Indiana. Sherwood v. State, 717 N.E.2d 131, 135

(Ind. 1999). In short, Spears could not have been prejudiced by the deprivation of

something to which he had no right.

                              5. Additional Defense Witnesses

       Spears next claims that Zahn was ineffective because she did not depose various

witnesses and call them to testify at trial. The evidence that these witnesses would

purportedly have offered may be grouped into three main categories: 1) evidence that

Spears was being set up for a gun charge; 2) evidence that Welsh was a drug addict; and

3) evidence that Welsh had committed crimes for which she had not been charged.

Appellant’s Br. p. 28.

                                              16
         As discussed above, Zahn’s strategy not to introduce evidence regarding the gun

clip was reasonable. And offering witness testimony that Spears was being set up for a

gun charge would not have furthered that strategy. Also, Welsh admitted in response to

Zahn’s questioning, that she was an extensive drug abuser when the controlled buy took

place.    Any additional evidence pertaining to Welsh’s drug use would have been

cumulative, and therefore, likely inadmissible.

         As to evidence that Welsh had committed crimes for which she had not been

prosecuted, Zahn did make an attempt to convince the trial court to allow that evidence.

The trial court made preliminary rulings that Spears would be permitted to introduce such

evidence if he could establish a nexus between the lack of charges being filed and

Welsh’s cooperation in the prosecution. However, such a connection was never shown

because the State did not offer Welsh any consideration for her testimony. Tr. p. 55, 416-

17, 426. Moreover, the trial court granted the State’s motion in limine, thus preventing

Sears from offering such evidence.

         In any event, Zahn did impeach Welsh with her robbery conviction that is

permitted under Indiana Rules of Evidence 609(a). In sum, Zahn cannot be said to have

been ineffective for not presenting evidence from witnesses whose testimony was

irrelevant and would have been in violation of the trial court’s order in limine.

                              6. Recording of Controlled Buy

         Spears next argues that Zahn was ineffective for failing to introduce the original

cassette tape of the buy into evidence, even though he specifically acknowledges that the

                                             17
original recording was lost or erased before Zahn received Spears’s file from a previous

defense counsel of record. Spears does not explain the efforts that Zahn allegedly failed

to make to retrieve the lost tape or what measures she could have taken to locate the

missing recording. Therefore, Spears has failed to show that Zahn’s performance in this

regard was deficient. The record also does not support Spears’s contention that Zahn

failed to challenge the accuracy and reliability of the tape recording.    An unenhanced

copy of the tape was admitted into evidence, and part of Zahn’s trial strategy was to

challenge the admissibility of the recording on the basis that it was inaudible. Therefore,

contrary to Spears’s contention on appeal, Zahn was not ineffective for failing to object

to the lack of expert testimony to authenticate the recording. The tape admitted was not

enhanced and Detective Duke, who listened to Welsh and Spears during the buy,

authenticated the tape by testifying that he had reviewed the tape and that it was accurate.

This was a sufficient foundation to render the recording admissible. Indiana Evid. Rule

901(a), (b)(1).

       Spears also maintains that Zahn should not have agreed to allowing the entire tape

of the controlled buy to be played for the jury. However, Zahn had tried to have evidence

of a family feud introduced into evidence that would explain Welsh’s motivation for

participating in the controlled buy. Zahn’s apparent strategy was to show that Welsh had

ulterior motives to lie about buying drugs from Spears, part of which was the apparent

bad blood caused by Welsh’s participation in ransacking Spears’s residence that was



                                            18
discussed during the controlled buy. Zahn’s insistence on having the entire recording

played to the jury was a method of placing this information before it.

       Spears maintains that he was prejudiced because the recording contained

unspecified “false and prejudicial allegations of misconduct.” Appellant’s Br. p. 31.

However, Zahn’s apparent strategy was that any potentially prejudicial content on the

recording would be overshadowed by the feud evidence that dovetailed into the overall

entrapment defense. Again, we decline to second guess Zahn’s strategy. State v. Moore,

678 N.E.2d 1258, 1261 (Ind. 1997). As a result, Spears’s claim that Zahn was ineffective

on this basis fails.

                                7.   Impeachment of Welsh

       Finally, Spears argues that Zahn was ineffective because she failed to present

evidence that the State had declined to prosecute Welsh for several crimes she had

committed. Spears contends that the State’s decision not to prosecute Welsh was to

obtain her testimony against Spears. However, as noted above, the trial court ruled that

such evidence would be admissible only if the defense could establish a nexus between

the State’s failure to prosecute and Welsh’s testimony at trial. The trial court also granted

the State’s motion in limine prohibiting such testimony.

       The record shows that the police officers who had investigated the alleged crimes

had been deposed, and their deposition testimony did not support Spears’s theory that the

State declined to prosecute Welsh in exchange for her testimony.             It was clearly

established that the State did not offer Welsh any consideration for her testimony. In

                                             19
light of the circumstances, simply offering the testimony of various witnesses who

claimed that Welsh committed crimes would not have established the nexus required to

make the desired impeachment evidence admissible. And Zahn did not introduce such

evidence because the trial court’s rulings prohibited her from doing so. Thus, Spears has

failed to show that Zahn was ineffective on this basis.

                     B. Ineffective Assistance of Appellate Counsel

       Spears next claims that Cornelius, his counsel on direct appeal, was ineffective

because additional issues should have been raised, including the defense of entrapment

and the official misconduct of the trial judge, prosecutor, and police officers. Spears

maintains that false evidence was presented to the jury and that relevant evidence was

concealed from the jury. As a result, he argues that these issues should have been raised

on direct appeal.

       We note that the standard set forth above applies to both claims of ineffective

assistance of trial and appellate counsel. Rhoiney v. State, 940 N.E.2d 841, 845 (Ind. Ct.

App. 2010), trans. denied. Our supreme court has recognized three types of ineffective

assistance of appellate counsel: (1) denial of access to appeal; (2) failure to raise issues

that should have been raised; and (3) failure to present issues well. Wrinkles v. State,

749 N.E.2d 1179, 1203 (Ind. 2001).

       When a petitioner claims that he or she was denied the effective assistance of

appellate counsel because various issues were not presented, we are particularly

deferential to counsel’s strategic decision to exclude certain issues in favor of others,

                                            20
unless such a decision was unquestionably unreasonable. Taylor v. State, 840 N.E.2d

324, 338 (Ind. 2006). However, even if we determine that counsel’s choice of issues was

not reasonable, a petitioner must demonstrate a reasonable probability that the outcome

of the direct appeal would have been different in order to prevail.       Id.   We must

determine “(1) whether the unraised issues are significant and obvious from the face of

the record; and (2) whether the issues that were not raised are clearly stronger than the

raised issues.” Gray v. State, 841 N.E.2d 1210, 1214 (Ind. Ct. App. 2006). Ineffective

assistance of counsel is rarely found when the issue is failure to raise claims on direct

appeal. Taylor v. State, 717 N.E.2d 90, 94 (Ind. 1999). This is so because the decision

about what issue or issues to raise on appeal is one of the most important strategic

decisions that an appellate counsel makes. Bieghler v. State, 690 N.E.2d 188, 193 (Ind.

1997).

         In this case, Spears argues, among other things, that Cornelius was ineffective

because she did not “properly raise the entrapment defense on the planting of false

evidence, and for failing to properly argue that the planting of false evidence is in

violation of rule 901.” Appellant’s Br. p. 34. Presumably, Spears is contending that

Cornelius should have argued on direct appeal that the State did not rebut the gun clip

entrapment defense. However, as Cornelius explained to Spears during the consultation

leading to his direct appeal, such a claim could not be raised because there was no

evidence developed at trial to support it. Tr. p. 236-37, 239-40, 243.



                                            21
       Indeed, arguments raised on direct appeal must be based on matters that are

contained in the trial record. Turner v. State, 508 N.E.2d 541, 543 (Ind. 1987). Cornelius

did argue that the State had failed to rebut the drug buy entrapment defense based on the

evidence in the record.     Spears, slip op. at 10-12.     And our review of the record

demonstrates that Cornelius did not fail to “present this issue well.” Bieghler, 690

N.E.2d at 193-95.

       Spears also claims that Cornelius was ineffective because she did not challenge the

admission of the controlled buy recording, the alleged misconduct of the judge,

prosecutor, and police officers in “misrepresenting facts regarding the planting of false

evidence,” and numerous other claims of misconduct. Appellant’s Br. p. 34.

       Notwithstanding Spears’s contentions, Cornelius raised four issues on direct

appeal, including challenging the admission of evidence procured incident to Spears’s

arrest, the admission of the recording of the buy, the evidence negating his entrapment

defense, and the appropriateness of the sentence. Spears, slip op. at 2. And through

these efforts on appeal, Spears’s aggregate sentence was reduced from twenty-eight years

to twenty years. Id. at 12-14.

       Part of Spears’s burden on appeal is to convince us that the issues he claims that

should have been raised—but were not—were clearly stronger than those that Cornelius

did choose to raise. Spears fails to meet this requirement because he offers no argument

comparing the merits of his proposed issues to those that were actually raised. Thus,

Spears’s claim of ineffective assistance of appellate counsel fails.

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                        C. Claims of Misconduct and Judicial Bias

       Spears next argues that he is entitled to post-conviction relief because the evidence

demonstrates that the prosecutor and the police engaged in various acts of misconduct,

and that the trial court judge was biased against him. We need not address the merits of

these claims because, as mentioned above, the scope of the post-conviction remedy is

limited to issues not known at the time of the original trial or that were unavailable on

direct appeal. If an issue was known and available, but not raised on direct appeal, it is

waived. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001).

       Here, all of the claims that Spears raises regarding alleged judicial bias and

prosecutorial and police misconduct could have been raised on direct appeal. Because

they were not, Spears has waived these claims.

                              D. Newly Discovered Evidence

       Finally, Spears argues that his request for post-conviction relief should have been

granted and that he is entitled to a new trial on the basis of newly-discovered evidence

because Welsh attempted to recant her trial testimony at the post-conviction hearing.

Moreover, Spears claims that because he established that Detective Duke pleaded guilty

to the crime of obstruction of justice, that fact amounted to newly-discovered evidence

that entitled him to post-conviction relief.

       In resolving this issue, we note that new evidence will mandate a new trial only

when the defendant demonstrates that: (1) the evidence has been discovered since the

trial; (2) it is material and relevant; (3) it is not cumulative; (4) it is not merely

                                               23
impeaching; (5) it is not privileged or incompetent; (6) due diligence was used to

discover it in time for trial; (7) the evidence is worthy of credit; (8) it can be produced

upon a retrial of the case; and (9) it will probably produce a different result at retrial.

Greenwell v. State, 884 N.E.2d 319, 328-29 (Ind. Ct. App. 2008). We analyze these

factors with care, as the “basis for newly discovered evidence should be received with

great caution and the alleged new evidence carefully scrutinized.” Id. at 329.

       As for Welsh’s attempt to recant her trial testimony, we note that a new trial is not

warranted if the post-conviction court determines that the recantation is not credible. See

id. at 329 (denying the petitioner a new trial based on the fact that the recantation of a

witness who previously identified him as the murderer was inconsistent and implausible).

       In this case, the post-conviction court specifically found that Welsh’s testimony at

the post-conviction hearing was inconsistent with her suppression and trial testimony. It

also determined that the testimony was somewhat internally inconsistent, in that Welsh

stated that Spears did not sell her pills, but she admitted to leaving money on the table.

The post-conviction court found this testimony to be “not credible.” Appellee’s App. p.

30. Because we defer to the post-conviction court’s factual findings, and given that

Welsh’s post-conviction testimony was not worthy of credit, Spears has failed to meet

one of the nine factors for assessing the value of newly discovered evidence. Therefore,

his claim fails. Greenwell, 884 N.E.2d at 329.

       Finally, we note that Spears’s introduction of evidence about Detective Duke’s

plea of guilty to obstruction of justice does not merit a new trial.     More specifically,

                                            24
Spears has failed to show that there is any connection between the crime to which

Detective Duke pleaded guilty and the instant offense.          And Detective Duke was

sentenced for his conviction almost three years after Spears committed and was charged

with his offense. Appellant’s App. p. 41-42. Hence, we cannot say that Detective

Duke’s decision to plead guilty to obstruction of justice is relevant to the instant matter.

It would, at best, only constitute impeachment evidence, and that type of evidence does

not warrant a new trial. Greenwell, 884 N.E.2d at 328-29. As a result, Spears’s request

for post-conviction relief on the basis of newly-discovered evidence fails.

       The judgment of the post-conviction court is affirmed.

DARDEN, J., and BAILEY, J., concur.




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