      MEMORANDUM DECISION
                                                                                     FILED
      Pursuant to Ind. Appellate Rule 65(D),                                     Mar 29 2016, 7:23 am
      this Memorandum Decision shall not be                                          CLERK
      regarded as precedent or cited before any                                  Indiana Supreme Court
                                                                                    Court of Appeals
      court except for the purpose of establishing                                    and Tax Court

      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                         Gregory F. Zoeller
      Public Defender of Indiana                               Attorney General of Indiana
      Anne Murray Burgess                                      Justin F. Roebel
      Deputy Public Defender                                   Deputy Attorney General
      Indianapolis, Indiana                                    Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jermarcus L. Grandberry,                                 March 29, 2016
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               02A03-1511-PC-1874
              v.                                               Appeal from the Allen Superior
                                                               Court
      State of Indiana,                                        The Honorable John F. Surbeck,
      Appellee-Respondent.                                     Jr., Judge
                                                               Trial Court Cause No.
                                                               02D06-1204-PC-53



      Mathias, Judge.


[1]   Jermarcus L. Grandberry (“Grandberry”) appeals the order of the Allen

      Superior Court denying his petition for post-conviction relief. On appeal,


      Court of Appeals of Indiana | Memorandum Decision No. 02A03-1511-PC-1874 | March 29, 2016          Page 1 of 17
      Grandberry claims that the post-conviction court erred by: (1) determining that

      he was not denied the effective assistance of trial counsel; and (2) rejecting his

      claim that the prosecutor committed misconduct.


[2]   We affirm.

                                    Facts and Procedural History

[3]   The facts underlying Grandberry’s conviction were set forth in our

      memorandum decision on direct appeal as follows:

              On May 9, 2010, Grandberry lived with his then girlfriend,
              Takelia Stewart, at an apartment at 1910 Hobson Road in Allen
              County. Grandberry occasionally borrowed Stewart’s green Ford
              Escort hatchback. On May 9, Grandberry borrowed Stewart’s car
              and, at noon, he picked up his brother, Sedrick Grandberry.


              At approximately two o’clock, a green Ford Escort pulled into
              the driveway of 3711 [Glencairn] Drive in Fort Wayne. Brett
              Coates, who lived nearby at 3204 [Glencairn] Drive in Fort
              Wayne observed from his living room the green Ford Escort pull
              into his neighbor’s driveway. The neighbor was not home.
              Coates observed an African-American male exit the car and
              knock on the door at 3711 Glencairn. When there was no
              answer, the man returned to the car and left. Fifteen minutes
              later, Coates saw the car return to the neighbor’s home, this time
              backing up the driveway and through the yard. Coates found that
              activity to be suspicious and telephoned the police.


              On the same afternoon, Harold Friedrich was walking his dog
              along Victoria Drive in Fort Wayne. When he was near the
              home at 4612 Victoria Drive, he observed a station wagon back
              out of the driveway very fast. About twenty-five minutes later, he
              was walking his dog again in the same area and saw between
      Court of Appeals of Indiana | Memorandum Decision No. 02A03-1511-PC-1874 | March 29, 2016   Page 2 of 17
        houses two African-American men carrying a television, but he
        did not see any cars. Friedrich assumed there had been a robbery,
        was able to note a partial license place number from the car that
        had sped past him, and telephoned the police.


        Edwina Snyder was living in Fort Wayne at 4612 Victoria Drive,
        which lies diagonally from Coates’ home and is “directly behind”
        3117 Glencairn Drive. Transcript at 160. On May 9, she returned
        home from a trip to find that her back door was “wide open.” Id.
        at 113. She also found that the lock had been damaged and that
        the casement window in her kitchen had also been “jimmied
        open.” Id. Snyder then noticed that her television and DVD
        player were missing. Further inspection revealed that her laptop
        computer, other computer equipment, CDs, and jewelry were
        also missing. And she found on the floor a nonoperational rifle
        that had been hanging over the fireplace. Snyder telephoned the
        Fort Wayne Police Department.


        Grandberry and his brother returned in the car to Stewart’s
        apartment at two-thirty in the afternoon. When they arrived at
        her apartment, they brought in electronics, a laptop computer,
        some jewelry, and a DVD player that they had not previously
        possessed. And they left a television in the car. The men later
        disposed of the television in a dumpster. That afternoon, Stewart
        also found CDs in her car that had not been there before
        Grandberry had used the car.


        Officer Matthew Cline of the Fort Wayne Police Department
        (“FWPD”) was dispatched to the area of Snyder’s home twice on
        May 9. On the first occasion, he went to 3117 Glencairn and
        spoke with Coates. The officer found CDs scattered in the yard
        and collected them for evidence. On Officer Cline’s second
        dispatch he went to Snyder’s home. There he assisted the
        primary officer on the scene and observed the damage to
        Snyder’s door and window.


Court of Appeals of Indiana | Memorandum Decision No. 02A03-1511-PC-1874 | March 29, 2016   Page 3 of 17
              Using the partial license plate number provided by Friedrich,
              police officers identified Stewart’s Escort as the car that had been
              in the area of Snyder’s home. On May 11, FWPD Detective
              Joseph Lyon interviewed Stewart at the police department.
              Stewart gave consent for police to search the vehicle, and officers
              found some of Snyder’s CDs inside. Stewart told officers that on
              May 9 she had loaned her vehicle to Grandberry, that
              Grandberry had returned with his brother in her vehicle at two-
              thirty on that day, and that Grandberry had in his possession at
              that time a television, CDs, a laptop computer, and jewelry that
              he had not had when he had originally borrowed the car.


              Subsequently on May 11, Detective Lyon interviewed
              Grandberry. After being advised of and waiving his Miranda
              rights, Grandberry admitted that he had borrowed Stewart’s car
              on the afternoon of May 9, that he had been the only one in
              control of the car that afternoon, and that he had been with his
              brother. But he denied having committed the robbery. The
              detective advised Grandberry that property from 4612 Victoria
              Drive had been found in a search of Stewart’s car and reminded
              him that he had already admitted that only he had had control of
              the car on the afternoon of May 9. Grandberry replied, “If I had
              known you were talking about a burglary I never would have
              admitted to being in that car.” Appellant’s App. at 8.


      Grandberry v. State, No. 02A05-1010-CR-643, 2011 WL 1733543 at *1-2 (Ind.

      Ct. App. May 6, 2011), trans. denied.


[4]   The State charged Grandberry with one count of Class B felony burglary.

      Following a jury trial, Grandberry was found guilty as charged, and the trial

      court sentenced Grandberry to fifteen years executed. On direct appeal,

      Grandberry presented four issues: (1) whether the evidence was sufficient to

      support his conviction; (2) whether the trial court erred in excluding evidence of

      Court of Appeals of Indiana | Memorandum Decision No. 02A03-1511-PC-1874 | March 29, 2016   Page 4 of 17
      bias, prejudice, or interest concerning Stewart; (3) whether the trial court

      abused its discretion in failing to identify certain mitigating factors; and (4)

      whether Grandberry’s fifteen-year sentence was inappropriate. We rejected all

      of Grandberry’s claims and affirmed his conviction and sentence. See id at 8.


[5]   On April 11, 2012, Grandberry filed a pro se petition for post-conviction relief.

      On October 10, 2014, Grandberry, now represented by the State Public

      Defender, filed an amended petition. The post-conviction court held a hearing

      on the matter on March 6, 2015. On October 14, 2015, the post-conviction

      court entered specific findings and conclusions denying Grandberry’s petition.

      Grandberry now appeals.


                               Post-Conviction Standard of Review

[6]   Post-conviction proceedings are not “super appeals” through which convicted

      persons can raise issues they failed to raise at trial or on direct appeal. McCary v.

      State, 761 N.E.2d 389, 391 (Ind. 2002). Post-conviction proceedings instead

      afford petitioners a limited opportunity to raise issues that were unavailable or

      unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443

      (Ind. 2002). The post-conviction petitioner bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Henley v. State, 881

      N.E.2d 639, 643 (Ind. 2008). Thus, on appeal from the denial of a petition for

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

      from a negative judgment. Id. To prevail on appeal from the denial of post-

      conviction relief, the petitioner must show that the evidence as a whole leads


      Court of Appeals of Indiana | Memorandum Decision No. 02A03-1511-PC-1874 | March 29, 2016   Page 5 of 17
      unerringly and unmistakably to a conclusion opposite that reached by the post-

      conviction court. Id. at 643-44.


[7]   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

      must determine if the court’s findings are sufficient to support its judgment.

      Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947

      N.E.2d 962. Although we do not defer to the post-conviction court’s legal

      conclusions, we review the post-conviction court’s factual findings under a

      clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence or

      judge the credibility of witnesses, and we will consider only the probative

      evidence and reasonable inferences flowing therefrom that support the post-

      conviction court’s decision. Id.


                            I. Ineffective Assistance of Trial Counsel

[8]   Grandberry claims that his trial counsel was ineffective. Our supreme court has

      summarized the law regarding claims of ineffective assistance of trial counsel as

      follows:


              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). First, the
              defendant must show that counsel’s performance was deficient.
              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. Second, the
              defendant must show that the deficient performance prejudiced

      Court of Appeals of Indiana | Memorandum Decision No. 02A03-1511-PC-1874 | March 29, 2016   Page 6 of 17
               the defense. 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. A reasonable probability is a probability sufficient
               to undermine confidence in the outcome.


               Counsel is afforded considerable discretion in choosing strategy
               and tactics, and we will accord those decisions deference. A
               strong presumption arises that counsel rendered adequate
               assistance and made all significant decisions in the exercise of
               reasonable professional judgment. 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. Isolated mistakes, poor
               strategy, inexperience, and instances of bad judgment do not
               necessarily render representation ineffective. The two prongs of
               the Strickland test are separate and independent inquiries. Thus, if
               it is easier to dispose of an ineffectiveness claim on the ground of
               lack of sufficient prejudice . . . that course should be followed.


       Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations

       omitted).


       A. Misquotation of Grandberry’s Statement to the Police

[9]    Grandberry first claims that his trial counsel should have impeached Detective

       Lyon’s testimony recounting what Grandberry told Lyon during his

       interrogation by the police.


[10]   During his interrogation, Grandberry admitted that he had been driving

       Stewart’s car. Detective Lyon testified at trial that Grandberry stated, “If I knew

       that this was a burglary investigation, I never would have told you I was in that


       Court of Appeals of Indiana | Memorandum Decision No. 02A03-1511-PC-1874 | March 29, 2016   Page 7 of 17
       car.” Trial Tr. p. 214. Detective Lyon characterized this as a “direct quote.” Id.

       However, according to the recording of the interrogation, Grandberry actually

       said, “If I go out to get and get a burglary on Sunday, I wouldn’t have told you

       I used her car Sunday,” and, “I’m telling you if I did a burglary on Sunday I

       wouldn’t have told you I used her car Sunday.” Ex. Vol., Petitioner’s Ex. 4,

       p.38.

[11]   Grandberry argues that Lyon’s misquote took what was essentially a denial of

       guilt—i.e., “if I had actually committed the burglary that day, why would I tell

       you I was in the car on that day?”—and transformed it in to what was an

       admission of guilt—i.e., “I wouldn’t have told you I was in the car if I had

       known this was a burglary investigation.” Grandberry claims that his trial

       counsel’s failure to either object to this mischaracterization or to impeach

       Detective Lyon regarding his misquote constitutes deficient performance.

[12]   The State does not deny that Detective Lyon misquoted Grandberry’s statement

       during the interrogation. However, the State claims that the failure to impeach

       Detective Lyon’s testimony did not constitute deficient performance. We agree.


[13]   Grandberry’s trial counsel testified at the post-conviction hearing. He admitted

       that he did not notice the discrepancy between Grandberry’s actual statements

       and Detective Lyon’s misquotation. Even if he had, he explained that the effect

       was essentially the same—Grandberry admitted that he had been in possession

       of Stewart’s car at the time of the burglary. He testified that, as a matter of




       Court of Appeals of Indiana | Memorandum Decision No. 02A03-1511-PC-1874 | March 29, 2016   Page 8 of 17
       strategy, he would not want to bring this topic back to the attention of the jury

       by either objecting or attempting to impeach the detective’s testimony.

[14]   Moreover, as noted by the post-conviction court, if trial counsel had attempted

       to impeach Detective Lyon’s testimony with the recording of Grandberry’s

       interrogation, this would have created the potential that the entire interrogation

       be admitted under the rule of completeness. See Ind. Evidence Rule 106 (“If a

       party introduces all or part of a writing or recorded statement, an adverse party

       may require the introduction, at that time, of any other part—or any other

       writing or recorded statement—that in fairness ought to be considered at the

       same time.”). This rule may be used to admit omitted portions of a statement in

       order to (1) explain the admitted portion; (2) place the admitted portion in

       context; (3) avoid misleading the trier of fact; or (4) insure a fair trial and

       impartial understanding of the admitted portion. Hawkins v. State, 884 N.E.2d

       939, 947 (Ind. Ct. App. 2008), trans. denied. Had this rule been used to present

       even more of Grandberry’s statements to Detective Lyon, the results would not

       have been helpful to his defense.


[15]   During the interrogation, Grandberry made inconsistent statements regarding

       the details of the day of the burglary. He also stated that he knew “from

       experience” not to involve a “female” in criminal endeavors because “they’ll

       break under pressure.” PCR Ex. Vol., Pet. Ex. 4, p. 27. He also stated that he

       would not pawn any stolen goods because he was smart enough to find a drug

       addict to whom he could sell the goods. Id. at 31.



       Court of Appeals of Indiana | Memorandum Decision No. 02A03-1511-PC-1874 | March 29, 2016   Page 9 of 17
[16]   Additionally, Grandberry later did make a statement more akin to what

       Detective Lyon described:

               [Lyon]:              You were in the car the day of the burglary. You
                                    said you were in the car the day of the burglary.
               [Grandberry]:        I was in the car on Sunday to go see my
                                    momma.

               [Lyon]:              That’s when the house was burglarized.
               [Grandberry]:        Don’t mean I did [it].
               [Lyon]:              I told you that.
               [Grandberry]:        Man, you didn’t tell me. You said what about
                                    Sunday.
               [Lyon]:              Yeah. That’s the day of the burglary.
               [Grandberry]:        You didn’t tell me until afterwards.

       Id. at 34-35. The effect of this statement is that Grandberry felt tricked by

       Detective Lyon because he asked Grandberry where he was on Sunday and

       only later stated that the burglary occurred on Sunday. From this, one could

       reasonably infer that Grandberry would not have admitted to being in the car

       on Sunday if the detective had told him up front that Sunday was the day of the

       burglary.


[17]   Thus, had Grandberry’s actual statement to the police came into evidence, the

       result would have been the same—Grandberry admitted to being in possession

       of the car on the day of the burglary and expressed consternation that he had

       admitted to being in possession of the car on that day. Under these facts and




       Court of Appeals of Indiana | Memorandum Decision No. 02A03-1511-PC-1874 | March 29, 2016 Page 10 of 17
       circumstances, we cannot say that trial counsel’s strategy not to impeach

       Detective Lyon constituted deficient performance.

[18]   Furthermore, during closing argument, Grandberry’s trial counsel did attempt

       to spin the admission that he had been in possession of the car as evidence that

       he had not committed the robbery. Specifically, trial counsel stated, “Don’t you

       think if you had committed a burglary, why would you admit to being in the car

       that you committed the burglary in?” Trial Tr. p. 247. Thus, he explained to the

       jury the gist of Grandberry’s actual statement.

[19]   Lastly, even if we were to agree with Grandberry that his trial counsel’s failure

       to impeach Officer Lyon’s testimony constituted deficient performance, we

       disagree that this prejudiced Grandberry. To be sure, the State did reference

       Officer Lyon’s misquotation in its opening and closing statements. However, as

       noted above, Grandberry’s trial counsel made an effective counterargument by

       questioning why Grandberry would admit to being in possession of the car if he

       knew that it had been seen at the burglary.

[20]   Furthermore, the evidence against Grandberry was largely circumstantial but

       significant: Grandberry was in possession of the car seen at the burglary; two

       men generally matching the description of Grandberry and his brother were

       seen at the burglarized home carrying a television; and Grandberry’s girlfriend

       testified that Grandberry and his brother returned to her home with items

       matching those stolen during the burglary. In light of this evidence, even if trial

       counsel had impeached Detective Lyon’s testimony regarding his misquotation


       Court of Appeals of Indiana | Memorandum Decision No. 02A03-1511-PC-1874 | March 29, 2016 Page 11 of 17
       of Grandberry’s statement, we cannot say that the result would have been any

       different. The effect of Grandberry’s statement remained that he admitted to

       being in possession of the car during the general period when the burglary was

       committed.


       B. Failure to Present Evidence Regarding When Grandberry Possessed the Car

[21]   Grandberry also faults his trial counsel for not cross-examining Detective Lyon

       regarding the time of day that Grandberry admitted to being in possession of

       Stewart’s car. Detective Lyon testified that Grandberry admitted to being in

       possession of the car during the afternoon of the day of the burglary.

       Grandberry claims, however, that his statement to Detective Lyon regarding

       the exact time that he was in possession of the car was equivocal: he stated that

       he could have gone to his mother’s home from anywhere between 12:00 p.m.

       and 6:00 p.m. that day, then visited his stepmother. As the burglary occurred

       sometime between 2:00 p.m. and 2:30 p.m., Grandberry now claims that he

       “could have visited his mothers in the 2 hours before the burglary or the three

       hours after.” Appellant’s Br. at 17.

[22]   Considering the full context of Grandberry’s statements, we cannot conclude

       that his trial counsel was deficient for failing to press this issue further.

       Grandberry initially told Detective Lyon that he had the car in the afternoon or

       evening of the day of the burglary. He later indicated that he had possession of

       the car soon after he woke up in the late morning. When Detective Lyon asked

       what Grandberry meant by late afternoon or evening, Grandberry replied, “like

       really like 12:00 and 3:00 between. Sometime.” PCR Ex. Vol., Petitioner’s Ex.
       Court of Appeals of Indiana | Memorandum Decision No. 02A03-1511-PC-1874 | March 29, 2016 Page 12 of 17
       4, p. 13. When Detective Lyon further attempted to clarify the time,

       Grandberry responded that he had the vehicle “somewhere late afternoon . . .

       Early afternoon as you called it.” Id. at 13. Detective Lyon then asked if it was

       “somewhere after noon and before 6:00,” Petitioner replied, “yeah, it was

       before 6:00.” Id. at 14.


[23]   None of these somewhat confusing statements to Detective Lyon provides

       much support to Grandberry’s claim that he did not commit the burglary. It

       merely acts to emphasize that he did possess the car seen at the burglary during

       the afternoon that the burglary took place. We therefore cannot fault his trial

       counsel for failing to elucidate further testimony on the time of his possession of

       the car.


       C. Evidence of Prior Bad Acts

[24]   Grandberry’s final claim of ineffective assistance of trial counsel involves the

       testimony of Grandberry’s girlfriend at the time, Stewart. During direct

       examination, the following exchange took place between the prosecuting

       attorney and Stewart:


               Q.      All right. Let’s talk about that. Did you have conversation
                       with the Defendant about the stuff that he was bringing
                       into your apartment?
               A.      I don’t recall the conversation, but I know I did have a
                       conversation with him.
               Q.      Okay. What was your—what were your emotions about
                       them bringing this stuff in?



       Court of Appeals of Indiana | Memorandum Decision No. 02A03-1511-PC-1874 | March 29, 2016 Page 13 of 17
               A.      My emotions were oh, you know, he’s bringing more items
                       into my house, you know. I’m tired of this. You know.

       Trial Tr. p. 178 (emphasis added).


[25]   According to Grandberry, this was a reference to prior incidents in which

       Grandberry brought stolen items into Stewart’s house and that his trial counsel

       should therefore have objected to this testimony on grounds that it was

       inadmissible under Indiana Evidence Rule 404(b). At the time of Grandberry’s

       trial, this rule provided:

               Other Crimes, Wrongs, or Acts. Evidence of other crimes,
               wrongs, or acts is not admissible to prove the character of a
               person in order to show action in conformity therewith. It may,
               however, be admissible for other purposes, such as proof of
               motive, intent, preparation, plan, knowledge, identity, or absence
               of mistake or accident, provided that upon request by the
               accused, the prosecution in a criminal case shall provide
               reasonable notice in advance of trial, or during trial if the court
               excuses pre-trial notice on good cause shown, of the general
               nature of any such evidence it intends to introduce at trial.


       Ind. Evid. Rule 404(b). Evidence Rule 404(b) was designed to assure that the

       State, relying upon evidence of uncharged misconduct, does not punish a

       person for his character. Rogers v. State, 897 N.E.2d 955, 960 (Ind. Ct. App.

       2008), trans. denied. The effect of Rule 404(b) is that evidence is excluded only

       when it is introduced to prove the “forbidden inference” of demonstrating the

       defendant’s propensity to commit the charged crime. Id.




       Court of Appeals of Indiana | Memorandum Decision No. 02A03-1511-PC-1874 | March 29, 2016 Page 14 of 17
[26]   Here, nothing in the challenged portion of Stewart’s testimony indicates that

       Grandberry has a propensity to commit the charged crime. It simply refers to

       him bringing more items into her house. Although Grandberry claims that the

       jury could infer from this that Stewart was referring to past instances of him

       bringing more stolen items into her house, nothing in her response suggests this.

       Moreover, “evidence which creates a mere inference of prior bad conduct does

       not fall within the purview of Evidence Rule 404(b).” Atteberry v. State, 911

       N.E.2d 601, 609 (Ind. Ct. App. 2009) (citing Rogers, 897 N.E.2d at 960 n.30).

       Thus, even if Grandberry’s trial counsel had objected, the trial court would not

       have sustained the objection because Stewart’s testimony was not subject to

       Evidence Rule 404(b).


       D. Cumulative Error

[27]   Grandberry also claims that the cumulative effect of the errors of his trial

       counsel amounts to ineffective assistance of counsel. Errors by counsel that are

       not by themselves sufficient to prove ineffective representation may add up to

       ineffective assistance when viewed cumulatively. French v. State, 778 N.E.2d

       816, 826 (Ind. 2002). However, we have determined that Grandberry’s claims

       regarding his trial counsel’s performance are without merit. “Alleged trial

       irregularities which standing alone do not amount to error do not gain the

       stature of reversible error when taken together.” Myers v. State, 33 N.E.3d 1077,

       1114 (Ind. Ct. App. 2015) (citations and internal quotations omitted), trans.

       denied. Accordingly, we are not persuaded by Grandberry’s claim of cumulative

       error.

       Court of Appeals of Indiana | Memorandum Decision No. 02A03-1511-PC-1874 | March 29, 2016 Page 15 of 17
                                        II. Prosecutorial Misconduct

[28]   Grandberry also claims that the State’s use of the “false” testimony of Detective

       Lyon was improper. Grandberry refers to the same misquotation addressed

       above and argues that the State’s use of this misquotation constituted a denial

       of due process. We conclude, however, that Grandberry may not bring this free-

       standing claim of error for the first time in a petition for post-conviction relief.


[29]   As noted above, post-conviction proceedings are not “super appeals” through

       which convicted persons can raise issues they failed to raise at trial or on direct

       appeal. McCary, 761 N.E.2d at 391. “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.”1 Sanders v. State,

       765 N.E.2d 591, 592 (Ind. 2002).


[30]   Grandberry argues that his claim was demonstrably unavailable on direct

       appeal because the discrepancy between what Grandberry actually stated and

       the misquotation by Detective Lyon are not apparent on the record. Again, the

       actual recording of the interrogation and/or a transcript thereof was not

       admitted into evidence at trial. However, Grandberry’s trial counsel was also

       his appellate counsel. Also, his counsel testified at the post-conviction hearing




       1
        We note that Grandberry also presents this claim in the context of a claim of ineffective assistance of trial
       counsel, which we have rejected above.

       Court of Appeals of Indiana | Memorandum Decision No. 02A03-1511-PC-1874 | March 29, 2016 Page 16 of 17
       that he had viewed the recording of the interrogation before trial. Moreover,

       Grandberry himself was the one who spoke to Detective Lyon. Therefore,

       either or both of them could have recognized the misquotation, and we are

       unable to say that this issue was demonstrably unavailable at the time of his

       direct appeal. Indeed, Grandberry could have filed a motion to correct error in

       order to put the recording of his interrogation into the record for appeal.

                                                  Conclusion

[31]   The post-conviction court did not clearly err in rejecting Grandberry’s claim

       that he was denied the effective assistance of trial counsel. Grandberry’s claim

       of prosecutorial misconduct cannot be brought as a free-standing claim in a

       post-conviction petition because it was not demonstrably unavailable to him on

       direct appeal.

[32]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision No. 02A03-1511-PC-1874 | March 29, 2016 Page 17 of 17
