MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              Sep 29 2015, 9:28 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
James A. Lynn                                            Gregory F. Zoeller
Pendleton, Indiana                                       Attorney General of Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James A. Lynn,                                           September 29, 2015
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         70A01-1412-PC-534
        v.                                               Appeal from the Rush Circuit
                                                         Court
State of Indiana,                                        The Honorable Beth A. Butsch,
Appellee-Respondent.                                     Special Judge
                                                         Trial Court Cause No.
                                                         70C01-1405-PC-154



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015   Page 1 of 15
[1]   James A. Lynn appeals the denial of his petition for post-conviction relief,

      contending that the post-conviction court erred in denying his petition. On

      appeal, he raises several issues that we consolidate and restate as:


              I. Whether Lynn received ineffective assistance of trial counsel;


              II. Whether Lynn’s freestanding allegations of error are
              procedurally defaulted and waived for appellate review; and


              III. Whether the post-conviction court abused its discretion in
              allowing Lynn’s trial counsel to testify to statements Lynn made
              to him in order to explain counsel’s trial strategy.


[2]   We affirm.


                                 Facts and Procedural History
[3]   The facts supporting Lynn’s convictions as set forth by this court in an

      unpublished decision on his direct appeal are as follows:


              On December 21, 2012, Rebecca McDonald (“McDonald”)
              came home from work and saw a white truck that she did not
              recognize in her driveway. McDonald was talking to a friend on
              her cell phone and told her about the truck; the friend said that
              she would call 911. McDonald parked next to the truck and
              blocked its exit from her driveway. McDonald got out of her
              vehicle and saw Lynn bringing items out of her home and putting
              them into the white truck. Lynn saw McDonald in the driveway,
              and he reached across the inside of the truck and blew the horn.
              Another man came out of McDonald’s house and got into the
              white truck. The white truck fled and rammed McDonald’s car
              in the process. As the white truck fled, McDonald saw the
              license plate number of the truck and reported it to the police.

      Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015   Page 2 of 15
              Law enforcement investigated the license plate number and
              determined that the truck was registered to Paul Rice (“Rice”).
              Law enforcement also connected Lynn to the truck through
              photographs from a scrap yard in Delaware County. With this
              information, police were able to put together photo arrays to
              show McDonald. McDonald identified Lynn and Rice as the
              men who burglarized her house.


              On January 11, 2013, the State charged Lynn with burglary as a
              Class B felony and theft, a Class D felony. Prior to trial, Lynn
              filed a motion to suppress the photo array prepared by police and
              shown to McDonald in an effort to identify him. Lynn claimed
              that he was denied due process because the photo array was
              unduly suggestive. The trial court denied Lynn’s motion. . . .


              On May 7, 2013, the trial court conducted a jury trial. Lynn
              renewed his objection to the photo array when it was offered into
              evidence by the State. However, he did not object to
              McDonald’s in-court identification. The jury found Lynn guilty
              of both counts and the trial court set the matter for sentencing.
              The trial court held a sentencing hearing on June 6, 2013 and
              sentenced Lynn to twenty (20) years executed on the burglary
              conviction and three (3) years executed on the theft conviction.
              The trial court ordered all of the executed time served in the
              Department of Correction with the counts running concurrently.


      Lynn v. State, No. 70A04-1307-CR-317, *1 (Ind. Ct. App. Feb. 28, 2014).


[4]   After his conviction, Lynn filed a direct appeal of his convictions, and a panel

      of this court affirmed his convictions and sentence. Id. On May 7, 2014, Lynn

      filed a petition for post-conviction relief, which was later amended on July 15,

      2014. An evidentiary hearing was held, and on November 25, 2014, the post-



      Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015   Page 3 of 15
      conviction court issued findings of facts and conclusions thereon, denying

      Lynn’s petition for relief. Lynn now appeals.


                                     Discussion and Decision
[5]   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.

      Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164

      (2002); Wieland v. State, 848 N.E.2d 679, 681 (Ind. Ct. App. 2006), trans. denied,

      cert. denied, 549 U.S. 1038 (2006). The proceedings do not substitute for a direct

      appeal and provide only a narrow remedy for subsequent collateral challenges

      to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The petitioner for post-

      conviction relief bears the burden of proving the grounds by a preponderance of

      the evidence. Ind. Post-Conviction Rule 1(5).


[6]   When a petitioner appeals a denial of post-conviction relief, he appeals a

      negative judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007),

      trans. denied. The petitioner must establish that the evidence as a whole

      unmistakably and unerringly leads to a conclusion contrary to that of the post-

      conviction court. Id. We will disturb a post-conviction court’s decision as

      being contrary to law only where the evidence is without conflict and leads to

      but one conclusion, and the post-conviction court has reached the opposite

      conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans.

      denied. The post-conviction court is the sole judge of the weight of the evidence


      Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015   Page 4 of 15
      and the credibility of witnesses. Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct.

      App. 2008), trans. denied. We accept the post-conviction court’s findings of fact

      unless they are clearly erroneous, and no deference is given to its conclusions of

      law. Fisher, 878 N.E.2d at 463.


                            I. Ineffective Assistance of Counsel
[7]   When evaluating a claim of ineffective assistance of counsel, we apply the two-

      part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Perry v.

      State, 904 N.E.2d 302, 308 (Ind. Ct. App. 2009) (citing Pinkins v. State, 799

      N.E.2d 1079, 1093 (Ind. Ct. App. 2003), trans. denied), trans. denied. First, the

      defendant must show that counsel’s performance was deficient. Id. This

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

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

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

      Fourteenth Amendments. Id. Second, the defendant must show that the

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

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

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

      Id. A reasonable probability is a probability sufficient to undermine confidence

      in the outcome. Id.


[8]   Further, counsel’s performance is presumed effective, and a defendant must

      offer strong and convincing evidence to overcome this presumption. Williams v.

      State, 771 N.E.2d 70, 73 (Ind. 2002). We will not lightly speculate as to what


      Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015   Page 5 of 15
      may or may not have been an advantageous trial strategy, as counsel should be

      given deference in choosing a trial strategy that, at the time and under the

      circumstances, seems best. Perry, 904 N.E.2d at 308 (citing Whitener v. State,

      696 N.E.2d 40, 42 (Ind. 1998)). Isolated omissions or errors, poor strategy, or

      bad tactics do not necessarily render representation ineffective. Shanabarger v.

      State, 846 N.E.2d 702, 708 (Ind. Ct. App. 2006), trans. denied. The two prongs

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

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

      2376 (2015). “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.’” Id.

      (quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001), cert. denied, 537

      U.S. 243 (1998)).


[9]   Lynn argues that he received ineffective assistance of trial counsel both from

      counsel who represented him during his trial and from counsel who represented

      him during his sentencing. Prior and during trial, Lynn was represented by

      Bryan Barrett (“Barrett”). Lynn initially contends that Barrett was ineffective

      for failing to investigate an alibi defense and failing to present the testimony of

      several witnesses that Lynn claims would have supported his alibi defense and

      proven that he was not present at the victim’s home on the day of the burglary.

      “Counsel is afforded considerable discretion in choosing strategy and tactics,

      and these decisions are entitled to deferential review.” Benefield v. State, 945

      N.E.2d 791, 797 (Ind. Ct. App. 2011). “[I]n the context of an ineffective

      assistance claim, ‘a decision regarding what witnesses to call is a matter of trial

      Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015   Page 6 of 15
       strategy which an appellate court will not second-guess.’” McCullough v. State,

       973 N.E.2d 62, 83 (Ind. Ct. App. 2012) (quoting Curtis v. State, 905 N.E.2d 410,

       415 (Ind. Ct. App. 2009), trans. denied), trans. denied.


[10]   At the post-conviction hearing, evidence was elicited that Lynn confessed to

       Barrett that he was involved in the burglary. Lynn’s confession would have

       created ethical difficulties for Barrett that would have prohibited him from

       presenting an alibi defense at trial. Additionally, the confession would have

       made clear the strength of the State’s evidence identifying Lynn as one of the

       burglars and highlighted the unlikelihood that Lynn’s alibi evidence would have

       been more reliable than the victim’s identification. Barrett faced the State’s

       evidence consisting of the victim’s positive identification of Lynn, whom she

       had been able to observe on a clear afternoon while wearing her glasses and

       looking directly at him as he placed her property inside of the Ford truck.

       Faced with this evidence and having knowledge of Lynn’s confession, we

       conclude that Barrett’s decision not to present an alibi defense at trial was one

       of trial strategy that we do not find was unreasonable. Additionally, Lynn’s

       contentions concerning Barrett’s failure to investigate are without merit. His

       assertions regarding not investigating statements by certain witnesses was

       contradicted by evidence that Barrett spoke with the witnesses and reviewed

       pretrial statements made by the witnesses. Lynn also lists several additional

       suspects that Barrett failed to investigate, but does not provide evidence about

       who these witnesses are or what further investigation would have revealed.




       Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015   Page 7 of 15
       Lynn, therefore, failed to show deficient performance of Barrett or any

       prejudice resulting from this alleged failure to investigate.


[11]   Lynn also claims ineffective assistance of trial counsel due to Barrett’s failure to

       timely file a motion to suppress the photo array used in the identification of

       Lynn by the victim and failure to timely object at trial to the same evidence.

       However, the evidence at the post-conviction hearing showed that Barrett did

       file a motion to suppress the photo array evidence, which was denied by the

       trial court. PCR Tr. at 50. Barrett also objected to the evidence during trial, and

       such objection was overruled. Id. Lynn has failed to prove that Barrett was

       ineffective for failing to challenge the identification evidence. Further, to the

       extent that Lynn argues that Barrett was ineffective for failing to give Lynn the

       opportunity to file an interlocutory appeal regarding the denial of his motion to

       suppress, we do not find ineffective assistance of counsel as any claim of

       prejudice was foreclosed by the decision on direct appeal. Lynn, No. 70A04-

       1307-CR-317 at *2; see Kubsch v. State, 934 N.E.2d 1138, 1143 n.2 (Ind. 2010)

       (“A petitioner for post-conviction relief cannot escape the effect of claim

       preclusion merely by using different language to phrase an issue and define an

       alleged error . . .[;] an issue previously considered and determined in a

       defendant’s direct appeal is barred for post-conviction review on grounds of . . .

       res judicata.”).


[12]   Lynn next argues that his trial counsel was ineffective for failing to impeach the

       victim’s testimony at trial. Lynn focuses on alleged discrepancies concerning

       the order in which the victim first observed the burglars and not on her

       Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015   Page 8 of 15
       identification of the burglars, which was the focus of Barrett’s defense at trial.

       Our Supreme Court has held that the method of impeaching a witness is a

       tactical decision and a matter of trial strategy that does not amount to

       ineffective assistance. Kubsch, 934 N.E.2d at 1151. We, therefore, conclude

       that Lynn has failed to show Barrett was ineffective in his impeachment of the

       victim.


[13]   Lynn additionally asserts that Barrett was ineffective for not discussing

       potential plea agreements with him. Lynn points to one draft plea agreement

       and one partial second plea agreement that are included in his appendix.

       Appellant’s App. at 23-25. However, at the post-conviction hearing, Lynn asked

       Barrett if, after the suppression hearing, Lynn ever requested a continuance in

       order to consider a plea agreement, to which Barrett stated he could not recall.

       PCR Tr. at 51. The suppression hearing occurred on May 7, 2013, and one of

       the draft plea agreements expired on May 2, 2013, while the second draft

       agreement was missing the second page that would have contained the

       expiration date. Lynn has failed to prove ineffective assistance for failure to

       discuss potential plea agreements.


[14]   Lynn also contends that Barrett was ineffective for failing to object to a final

       jury instruction on aiding and abetting because Lynn claims the instruction

       should have required “proof of specific intent of crime specified” and relies on

       Hopkins v. State, 759 N.E.2d 633 (Ind. 2001). However, that case dealt with

       aiding and abetting in a prosecution for attempted murder and is not applicable

       to the present case. The jury instruction given in this case was a correct

       Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015   Page 9 of 15
       statement of the law and properly instructed the jury that in order to find Lynn

       guilty as an accomplice, the State was required to prove that Lynn knowingly or

       intentionally aided another person in breaking and entering the victim’s home

       with the intent to commit theft. Trial Tr. at 311-12. We find no ineffective

       assistance of counsel.


[15]   Lastly, Lynn argues that he received ineffective assistance of his counsel at

       sentencing. During sentencing, Barret withdrew, and Andrew Eads (“Eads”)

       represented Lynn. Lynn initially contends that Barrett and Eads were

       ineffective because they allowed his rights to be violated under Blakely v.

       Washington, 542 U.S. 296 (2004) as the jury did not decide the aggravating

       factors during sentencing. However, the Indiana Legislature enacted a new

       sentencing regime in response to Blakely, which eliminated fixed terms and

       created a sentencing scheme in “which there is no longer a maximum sentence

       a judge ‘may impose without any additional findings.’” Anglemyer v. State, 868

       N.E.2d 482, 489 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007)

       (quoting Blakely, 542 U.S. at 304). Therefore, any claims concerning violations

       under Blakely have no merit.


[16]   Lynn next asserts that Eads was ineffective for failing to present character

       witnesses during sentencing and witnesses who would have testified to

       mitigating factors that should have been presented to the trial court. During the

       post-conviction hearing, Lynn presented the testimony of several witnesses,

       who all testified that they had information that would have been relevant at

       sentencing, but did not testify as to what that information would have been.

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       He, therefore, failed to establish that the failure to have these witnesses testify at

       sentencing prejudiced him. Lynn also contends that Eads was ineffective for

       failing to allow Lynn to testify at sentencing. However, Lynn did not testify at

       the post-conviction hearing and did not question Eads in detail about

       conversations they had about Lynn’s demand to testify at sentencing. We

       conclude that Lynn has not shown how he was prejudiced by this strategic

       decision by Eads, especially in light of the evidence presented at sentencing of

       Lynn’s extensive criminal history and the circumstances of the crime in which

       Lynn and his co-defendant struck the victim’s vehicle that she was standing

       near at the time and shoved it out of the way to escape from the crime scene.


[17]   Lynn also claims that he received ineffective assistance of counsel at sentencing

       due to Eads’s failure to obtain Lynn’s educational and mental health records or

       to consult with a mental health professional. However, Lynn did not admit any

       educational or mental health records at the post-conviction hearing or any

       testimony regarding what information a mental health professional would have

       provided to the trial court. Additionally, at sentencing, the trial court was able

       to consider the pre-sentencing report and discussed Lynn’s physical illnesses

       and mental health conditions when it pronounced the sentence, considering

       such as a mitigating factor. Lynn has not established how he was prejudiced by

       any failure to present further mental health evidence.


[18]   Lynn further contends that Eads was ineffective for failing to object to

       admission of the victim’s list of values for the jewelry stolen from her during the

       burglary that was used to establish the restitution order. During the sentencing

       Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015   Page 11 of 15
       hearing, Eads cross-examined the victim regarding how she assigned values to

       the jewelry and argued the issue of valuation and that the victim’s listed values

       seemed high. A victim’s in-court testimony may be sufficient to support a

       restitution order. See Blixt v. State, 872 N.E.2d 149, 153-54 (Ind. Ct. App. 2007)

       (holding evidence sufficient to support restitution order based solely on

       testimony from victim’s mother that she paid a certain amount to cover

       daughter’s psychiatric services). We find that Eads was not ineffective as to his

       handling of the victim’s restitution request.


[19]   Lastly, Lynn raises a claim that all of the contentions he has asserted constitute

       a “compilation of errors” that taken cumulatively amount to ineffective

       assistance of counsel. Appellant’s Br. at 21. “Alleged ‘[t]rial irregularities which

       standing alone do not amount to error do not gain the stature of reversible error

       when taken together.’” Kubsch, 934 N.E.2d at 1154 (quoting Reaves v. State, 586

       N.E.2d 847, 858 (Ind. 1992)). We, therefore, conclude that Lynn is not entitled

       to relief on this claim.


                              II. Free-standing Claims of Error
[20]   Post-conviction proceedings are civil proceedings that provide defendants the

       opportunity to raise issues not known or available at the time of the original

       trial or direct appeal. Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007)

       (citing Conner v. State, 711 N.E.2d 1238, 1244 (Ind. 1999), cert. denied, 531 U.S.

       829 (2000)), cert. denied, 552 U.S. 1314 (2008). Thus, if an issue was known and

       available but not raised on direct appeal, the issue is procedurally foreclosed.


       Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015   Page 12 of 15
       Id. (citing Timberlake, 753 N.E.2d at 597). “In post-conviction proceedings,

       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.” Id.


[21]   In the present case, Lynn raises several free-standing claims of error in his

       appellate brief. He first contends that the trial court erred when it did not

       conduct an inquiry at sentencing as to his ability to pay before entering a

       restitution order and that the restitution order and sentence were illegal. Lynn

       also argues that he was denied due process based on a violation of Criminal

       Rule 4(B). He further claims that he suffered a due process violation because of

       several errors in his sentencing including: (1) the aggravators were improperly

       found; (2) improper aggravators were used by the trial court to enhance his

       sentence; and (3) he was not allowed to present evidence at sentencing.


[22]   These freestanding issues raised by Lynn were all known and available at the

       time of his direct appeal. Therefore, the issues had to be raised on direct

       appeal, and because they were not, they are procedurally foreclosed and may

       not be raised now for the first time on post-conviction relief. We conclude that

       Lynn’s freestanding claims of error are foreclosed from our review on appeal.

       Further, to the extent that he attempts to argue that his appellate attorney was

       ineffective for failing to raise these issues in his direct appeal, we find such

       argument waived for failure to provide a cogent argument in support of such

       contention. A party waives an issue where the party fails to develop a cogent

       argument or provide adequate citation to authority and portions of the record.

       Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015   Page 13 of 15
       Wingate v. State, 900 N.E.2d 468, 475 (Ind. Ct. App. 2009); see also Ind.

       Appellate Rule 46(A)(8) (requiring that contentions in appellant’s brief be

       supported by cogent reasoning and citations to authorities, statutes, and the

       appendix or parts of the record on appeal). Here, Lynn merely provides a

       single sentence that his appellate attorney’s failure to address these issues

       deprived him of due process. Appellant’s Br. at 33. Therefore, Lynn has waived

       any claim regarding ineffective assistance of appellate counsel by failing to

       provide a cogent argument in support of such claim.


                                     III. Counsel’s Testimony
[23]   Lynn contends that the post-conviction court abused its discretion when, in

       order to explain the trial strategy he employed, the post-conviction court

       allowed Barrett to testify to statements that Lynn made to Barrett prior to trial.

       The admission or exclusion of evidence in a post-conviction proceeding is

       within the post-conviction court’s sound discretion. Hyppolite v. State, 774

       N.E.2d 584, 600 (Ind. Ct. App. 2002), trans. denied. We defer to the post-

       conviction court and will not disturb its ruling on review unless there was an

       abuse of discretion. Id. A defendant waives the attorney-client privilege when

       he files a petition for post-conviction relief on the grounds of ineffective

       assistance of counsel. Carter v. State, 738 N.E.2d 665, 674 n.6 (Ind. 2000).

       “‘When the professional integrity of an attorney is attacked by a client, that

       attorney has a right to defend his conduct as counsel.’” Id. (quoting Logston v.

       State, 266 Ind. 395, 399, 363 N.E.2d 975, 977 (1977)). We, therefore, conclude

       that the post-conviction court did not abuse its discretion in allowing Barrett to

       Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015   Page 14 of 15
       testify regarding statements made by Lynn in order to explain counsel’s trial

       strategy.


[24]   Affirmed.


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




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