MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  FILED
court except for the purpose of establishing
the defense of res judicata, collateral                               Dec 12 2018, 10:48 am

estoppel, or the law of the case.                                          CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Elmer Dean Baker                                         Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General of Indiana

                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Elmer Dean Baker,                                        December 12, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-354
        v.                                               Appeal from the DeKalb Superior
                                                         Court
State of Indiana,                                        The Honorable J. Scott
Appellee-Respondent.                                     VanDerbeck, Special Judge
                                                         Trial Court Cause No.
                                                         17D01-1604-PC-3



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-354 | December 12, 2018               Page 1 of 18
                                          Case Summary
[1]   In August of 2008, Elmer Dean Baker was convicted of two counts of Class A

      felony child molestation and Class C felony child molestation and found to be a

      habitual offender, for which he was sentenced to 106 years of incarceration. We

      affirmed Baker’s convictions on direct appeal, as did the Indiana Supreme

      Court on transfer.


[2]   In 2016, Baker filed his amended petition for post-conviction relief (“PCR”),

      contending, inter alia, that he was entitled to relief because he received

      ineffective assistance of appellate counsel (“IAAC”). The post-conviction court

      denied his petition in full. Baker contends that the post-conviction court erred

      by denying him PCR. Because we conclude that Baker has failed to establish

      that he received IAAC, we affirm.



                            Facts and Procedural History
[3]   The underlying facts leading to Baker’s appeal of the denial of his PCR petition

      are as follows:


              On July 3, 2006 the State charged then fifty-nine-year-old Elmer
              Dean Baker with two counts of child molesting as Class A
              felonies. The victims of the alleged offenses were two of Baker’s
              grandchildren, C.B. and J.A. And the offenses were alleged to
              have occurred in “June and July of 2003.” After a jury trial in
              June of 2007 the trial court declared a mistrial when the jury
              could not reach a verdict. Thereafter the State sought leave to
              amend the charging information to reflect the time period “from
              October 2000 through August 2003.” An additional count of

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-354 | December 12, 2018   Page 2 of 18
        child molesting as a Class C felony was also added. The alleged
        victim was A.H., a cousin of C.B. who is unrelated to Baker.
        This offense was alleged to have occurred “in or about 2002.”
        Baker was also alleged to be a habitual offender.


        Over Baker’s objection the trial court permitted the amendments.
        And a retrial began on August 13, 2008. Evidence presented by
        the State is summarized in part as follows: C.B., who was
        eighteen years of age at the time of trial, testified that she was
        born in September 1990, her cousin J.A. was born in December
        1990, and that during the period between 2000 and 2003 she,
        J.A., and A.H. were close friends. C.B. also testified that during
        that period of time her family lived at various locations in
        DeKalb County including houses and apartments in Spencerville,
        Auburn, and Garrett, Indiana. According to C.B., Baker first
        began touching her inappropriately when she was about nine or
        ten years old. Specifically C.B. recounted an incident in which
        she and J.A. spent the night at Baker’s apartment in Auburn
        which was next door to her own home where she lived with her
        parents. J.A. and C.B. were first sleeping in the living room but
        became frightened for some reason and went into Baker’s room
        to lie down on his bed. C.B. testified that at that point “he started
        to touch us and he pulled me on top of him.... He [ ] pretended
        like he was having sex with me but we had, like I had my
        underwear on.... He like touched our vaginas.” She went on to
        say, “He like placed my hand on his penis and made like the
        motion of masturbating.”


        When C.B. was ten or eleven years old Baker, who was a long
        distance truck driver, often took C.B. with him on overnight
        truck trips several weekends during the summer months of 2001
        and 2002. According to C.B. most of the “sexual stuff” happened
        “in the semi” and it happened “a lot.” When asked by the
        prosecutor “what kind of stuff happened in the semi truck?” C.B.
        responded “my grandpa had sex, my grandpa had sex with me.”
        When asked “[w]hat other sex acts took place in the semi truck?”

Court of Appeals of Indiana | Memorandum Decision 18A-PC-354 | December 12, 2018   Page 3 of 18
        C.B. recounted an incident in which she and J.A. were together
        on one of the truck trips and both of them fellated Baker; on
        another occasion Baker digitally penetrated her and touched her
        breast.


        By the summer of 2003 Baker owned a small house on Story
        Lake in DeKalb County. At that point C.B. was twelve years of
        age. On July 3rd of that year C.B. and J.A. were present for a
        family gathering and spent the night at Baker’s house. At some
        time during the course of the night C.B. and J.A. went into
        Baker’s room and according to C.B. “[u]m, he had sex with
        me.... Um, he inserted his penis into my vagina.” C.B. further
        testified, “he like touched us and had us touch him ... on the
        private parts.” The “us” referred to J.A. C.B. also testified that
        both she and J.A. “would take turns” fellating Baker.


        C.B. recounted another incident occurring at a trailer that Baker
        owned at the North Pointe Crossing Mobile Home park just
        north of where she lived in Garrett. The precise date is unclear
        but the record suggests sometime between 2001 and 2003. C.B.,
        J.A., and A.H. were present at Baker’s trailer. The three girls
        went into Baker’s bedroom where he pretended to be asleep.
        According to C.B. she and J.A. “took turns” fellating Baker, and
        all three of the girls “touch[ed] his penis.”


        J.A., who was seventeen years of age at the time of trial, testified
        that C.B. is her step first cousin and that she refers to Baker as
        “Grandpa Dean.” She also testified that during 2000 to 2003 she,
        C.B., and A.H. were good friends. She offered testimony that
        tended to corroborate that of C.B. including an incident
        involving A.H. According to J.A. the three girls were present at
        Baker’s house. Baker was present and pretending to be asleep.
        The three girls went into his bedroom where A.H. fellated Baker
        and J.A. played with his scrotum. “And then me and [A.H.]
        switched.” She further recalled that C.B. was on top of Baker and
        he was “sucking on her [breast].”
Court of Appeals of Indiana | Memorandum Decision 18A-PC-354 | December 12, 2018   Page 4 of 18
        A.H., who was also seventeen at the time of trial, was the third of
        the alleged victims to testify. Although no specific dates were
        given, A.H. largely corroborated the testimony of C.B. and J.A.
        concerning the alleged incident occurring at Baker’s house at the
        mobile home park. Among other things she confirmed that C.B.
        fellated Baker, and “then [J.A.] did it and then after that I tried
        it.” A.H. also recounted an occasion when she and J.A. were
        together on a trucking trip with Baker in his semi. The truck was
        equipped with a bed. While J.A. was in the passenger seat, A.H.
        went to sleep in the bed. A.H. testified that when she awoke
        Baker was lying next to her, and her clothing had been removed.
        Baker rubbed his fingers over her “private area,” got on top of
        her, and “humped [her] stomach until he ejaculated.”


        Baker testified on his own behalf. He acknowledged occasionally
        taking all of his grandchildren on semi trucking trips at one time
        or another and acknowledged owning a house on Story
        Lake. However, Baker denied engaging in any sexual activity
        with C.B., J.A., or A.H. In response to his attorney’s question
        “[a]nd you’re saying to me that they are lying,” Baker responded,
        “[t]hey absolutely are.” Essentially he testified that he believed
        C.B. had organized the girls to offer false testimony as part of a
        conspiracy to get even with him after he caught C.B. in a car with
        a boy at three in the morning as a result of which “she got
        grounded.” According to Baker, about two weeks later C.B.
        started a “rumor” about him engaging in inappropriate sexual
        activity.


        Following a five-day jury trial Baker was convicted as charged,
        and he pleaded guilty to the habitual offender allegation. The
        trial court sentenced him to a consecutive term of imprisonment
        on each of the three child molest counts for a total of seventy-six
        years. One of the counts was enhanced by thirty years for the
        habitual offender adjudication. The total executed term was 106
        years.


Court of Appeals of Indiana | Memorandum Decision 18A-PC-354 | December 12, 2018   Page 5 of 18
              Baker appealed framing his contentions as follows: (1) the
              convictions are not sustained by evidence of jury unanimity, (2)
              the trial court’s ruling allowing amendment of the information
              was in violation of proscriptions under the state and federal
              constitutions against ex post facto laws; if the amendment can be
              lawfully applied in this case, it was not applied properly, (3) the
              trial court committed fundamental error in giving its preliminary
              instruction 6 and final instruction 5, and (4) defendant’s
              convictions should be set aside due to ineffective assistance of
              counsel. The Court of Appeals rejected Baker’s arguments and
              affirmed the judgment of the trial court.


      Baker v. State, 948 N.E.2d 1169, 1171–73 (Ind. 2011) (internal citations
      omitted).


[4]   The Indiana Supreme Court granted transfer to explore Baker’s jury unanimity

      claim, ultimately holding that any instructional error regarding jury unanimity

      was not fundamental and summarily affirming the balance of the decision by

      the Court of Appeals. Id. at 1173. On April 19, 2016, Baker filed an amended

      PCR petition, alleging that he received IAAC. On December 12, 2017, the post-

      conviction court held a hearing on Baker’s PCR petition, at which Baker’s

      appellate counsel Latrielle Wheat testified, and it was ultimately denied on

      January 16, 2018.



                                 Discussion and Decision
[5]   The standard of review for appeals from the denial of PCR is well-settled.

      Petitioners who have exhausted the direct-appeal process may challenge the

      correctness of their convictions and sentences by filing a post-conviction


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-354 | December 12, 2018   Page 6 of 18
      petition. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Petitioner bears the

      burden of establishing grounds for PCR by a preponderance of the evidence. Id.

      By appealing from a negative judgment, Petitioner faces a rigorous standard of

      review. Wesley v. State, 788 N.E.2d 1247, 1250 (Ind. 2003). Denial of PCR will

      be affirmed unless, “the evidence as a whole leads unerringly and unmistakably

      to a decision opposite that reached by the post-conviction court.” Id. We do not

      defer to the post-conviction court’s legal conclusion but do accept its factual

      findings unless they are clearly erroneous. Stevens, 770 N.E.2d at 746. The post-

      conviction process does not provide petitioner with a “super-appeal” but,

      rather, a “narrow remedy for subsequent collateral challenges to convictions,

      challenges which must be based on grounds enumerated in the post-conviction

      rules.” Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999). Issues that were

      known and available but not raised on direct appeal are waived, and issues

      raised but decided adversely are res judicata. Id.


                                  I. Sufficiency of Evidence
[6]   Baker contends that there was insufficient evidence to convict him of the two

      counts of Class A felony child molestation because there was no evidence of

      penetration. Although Baker has tried to frame this as a new issue, it is nothing

      more than a freestanding claim that is waived. See Rouster, 705 N.E.2d at 1003

      (noting that an issue known and available but not raised on direct appeal is

      waived by petitioner).




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-354 | December 12, 2018   Page 7 of 18
                                                 II. IAAC
[7]   Baker contends that he received ineffective assistance from Wheat when she

      represented him on direct appeal. The standard for determining whether

      appellate counsel’s performance was ineffective is the same as that for trial

      counsel. McKnight v. State, 1 N.E.3d 193, 204 (Ind. Ct. App. 2013). We review a

      claim for IAAC based on the standard articulated in Strickland v. Washington,

      466 U.S. 668 (1984):


              Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
              L.Ed.2d 674 (1984), a claim of ineffective assistance of counsel
              requires a showing that: (1) counsel’s performance was deficient
              by falling below an objective standard of reasonableness based on
              prevailing professional norms; and (2) counsel’s performance
              prejudiced the defendant so much that “there is a reasonable
              probability that, but for counsel’s unprofessional errors, the result
              of the proceeding would have been different” Id. at 687, 694, 104
              S.Ct. 2052; Lowery v. State, 640 N.E.2d 1031, 1041 (Ind. 1994).
              […] Failure to satisfy either prong will cause the claim to fail.
              Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999).


      French v. State, 778 N.E.2d 816, 824 (Ind. 2002). Counsel’s performance is

      presumed effective, and instances of isolated poor strategy, inexperience, or bad

      tactics are not necessarily ineffective assistance; thus a defendant must offer

      strong and convincing evidence to overcome the presumption of effective

      assistance. McKnight, 1 N.E.3d at 200.


[8]   “Ineffective assistance of appellate counsel claims generally fall into three basic

      categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-354 | December 12, 2018   Page 8 of 18
       to present issues well.” Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006).

       “Judicial scrutiny is highly deferential regarding a claim that counsel was

       ineffective in failing to raise an issue on appeal thus resulting in waiver for

       collateral review, and the [petitioner] must overcome the strongest presumption

       of adequate assistance.” McKnight, 1 N.E.3d at 204. Rarely is ineffective

       assistance found where petitioner contends that appellate counsel failed to raise

       an issue on direct appeal, because the decision of which issue to raise is one of

       the most important strategic decisions made by appellate counsel. Id.


                           A. IAC Claim Brought on Direct Appeal
[9]    Baker contends that Wheat was ineffective for bringing an IAC claim on direct

       appeal rather than leaving the claim for a post-conviction proceeding. Baker

       contends that Wheat raised the claim ineffectively by failing to obtain testimony

       from Baker’s trial counsel regarding trial counsel’s decision not to obtain a

       medical expert to refute the State’s medical expert’s testimony at trial. Although

       post-conviction proceedings are usually the preferred avenue for bringing IAC

       claims, they are not prohibited from being brought on direct appeal. Rogers v.

       State, 897 N.E.2d 955, 965 (Ind. Ct. App. 2008), trans. denied. Post-conviction

       proceedings are preferred because presenting such a claim can require

       developing new facts that are not present in the trial record. Id.


[10]   Baker has offered no proof of the testimony that needed to be elicited from his

       trial counsel to develop facts that were not already in the trial record. Arguing

       that his appellate counsel was ineffective by not eliciting testimony from trial


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-354 | December 12, 2018   Page 9 of 18
       counsel, without more, is merely speculation. Further, it is Baker’s burden to

       make a record, and because his trial counsel was never called to testify during

       his PCR hearing, the post-conviction court was not required to believe that trial

       counsel would have corroborated Baker’s allegation. See Culvahouse v. State, 819

       N.E.2d 857, 863 (Ind. Ct. App. 2004), trans. denied (finding that “[w]hen

       counsel is not called as a witness to testify in support of a petitioner’s

       arguments, the post-conviction court may infer that counsel would not have

       corroborated the petitioner’s allegations.”). We cannot conclude that Wheat

       was ineffective by bringing an IAC claim on direct appeal.


                                       B. Alleged Juror Prejudice
[11]   Baker contends that Wheat provided ineffective assistance by failing to claim

       that trial counsel was ineffective for not moving for a mistrial based on juror

       exposure to prejudicial newspaper articles. Baker relies on two newspaper

       articles which discuss his initial arrest and his first trial that resulted in a

       mistrial. Because at his PCR hearing Baker never admitted these newspaper

       articles nor any evidence that jurors were exposed to these articles, there was

       never any evidence of juror prejudice properly before the post-conviction court.

       Therefore, his claim is unsupported by evidence and therefore groundless.


                                       C. Alleged Juror Taint
[12]   Baker also contends that Wheat provided ineffective assistance by failing to

       claim that trial counsel was ineffective for not moving for a mistrial based on a

       juror’s conversation with the prosecutor’s husband. “Defendants seeking


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-354 | December 12, 2018   Page 10 of 18
       mistrial for suspected jury taint are entitled to the presumption of prejudice only

       after making two showings, by a preponderance of the evidence: (1) extra-

       judicial contact or communications between jurors and unauthorized persons

       occurred, and (2) the contact or communications pertained to the matter before

       the jury.” Ramirez v. State, 7 N.E.3d 933, 939 (Ind. 2014). Even assuming that

       the prosecutor’s husband was an unauthorized person, the communication was

       not related to Baker’s case. The conversation solely consisted of whether the

       prosecutor’s husband was going to play on the same soccer team as the juror

       that year. (Appellant’s App. Vol. VI p. 14). Baker failed to establish that

       Wheat’s performance was ineffective in this regard.


                                       D. Statute of Limitations
[13]   Baker contends that Wheat was ineffective on direct appeal for failing to raise

       that the State’s amended charge of Count III, Class C felony child molestation,

       violated the applicable statute of limitations. Disregarding trial counsel’s failure

       to object, Baker’s claim has no merit. “A charging information must only state

       the date of the offense with sufficient particularity to show that the offense was

       committed within the period of limitations applicable to that offense.” Blount v.

       State, 22 N.E.3d 559, 569 (Ind. 2014) (internal citations admitted). We have

       noted that when it comes to child molesting cases, time is not of the essence

       because it is difficult for children to remember specific dates, especially when

       these incidents of molestation are not immediately reported. Baber v. State, 870

       N.E.2d 486, 492 (Ind. Ct. App. 2007), trans. denied. The statute of limitations

       for amended Count III in this case was five years. See Ind. Code § 35-41-4-2(b)

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-354 | December 12, 2018   Page 11 of 18
       (2002). On June 18, 2007, the State filed amended Count III, Class C felony

       child molestation, alleging that the molestation occurred “in or about 2002[.]”

       The State argues, and Baker does not contest, that trial testimony established

       that at least one instance of molestation involving all three victims occurred

       after the conclusion of one Buzz Wilkens’s trial, which concluded on October

       30, 2002. Thus, that instance involving all three girls occurred after June 18,

       2002, which is within the five-year statute of limitations. Baker has failed to

       establish that Wheat provided IAAC in this regard.


                                           E. Waiver of Jury
[14]   Baker contends that Wheat was ineffective for failing to claim that Baker did

       not knowingly, voluntarily, and intelligently waive his right to a jury trial. The

       waiver Baker is referring to occurred, through trial counsel, during the

       determination of his habitual offender status, at which the State presented

       evidence of his previous convictions and after which the trial court determined

       Baker to be a habitual offender. In support of his contention, Baker cites Horton

       v. State, 51 N.E.3d 1154, 1160 (Ind. 2016), in which the Indiana Supreme Court

       held that a defendant’s right to a jury trial in a felony prosecution may only be

       waived by the defendant personally. Assuming, arguendo, that the holding in

       Horton extends to the determination of habitual offender status, said precedent

       did not exist when Baker’s direct appeal was filed in 2009. When choosing the

       issues to raise on Baker’s direct appeal, Wheat could not have been ineffective

       for failing to foresee legal developments seven years down the road.



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-354 | December 12, 2018   Page 12 of 18
                                                     F. Sentencing
[15]   Baker contends that Wheat was ineffective for failing to make the following

       sentencing challenges on direct appeal: (1) his sentence violated the United

       States Supreme Court’s holdings in Blakely1 and Apprendi,2 (2) the trial court

       abused its discretion by failing to explain why it imposed consecutive sentences,

       and (3) his sentence was manifestly unreasonable in light of the nature of his

       offense and his character.


[16]   Although Baker contends that his sentence violated the United States Supreme

       Court’s precedent in Blakely and Apprendi because the trial court considered

       aggravating circumstances not found by the jury, he fails to recognize that by

       the time he was sentenced, steps had been taken to conform Indiana’s

       sentencing statutes with said precedent. In 2005, the Indiana General Assembly

       enacted new sentencing statutes to resolve the Sixth Amendment issues

       presented by Blakely. Anglemyer v. State, 868 N.E.2d 482, 489 (Ind. Ct. App.

       2007), clarified on reh’g 875 N.E.2d 218. In doing so, the General Assembly

       eliminated fixed terms and enacted sentencing statutes that did not contain a

       maximum sentence a judge may impose without any additional findings. Id.

       (internal quotations admitted). “As a result, even with judicial findings of

       aggravating circumstances, it is now impossible to increase the penalty for a




       1
           Blakely v. Washington, 542 U.S. 296 (2004).
       2
           Apprendi v. New Jersey, 530 U.S. 466 (2000).


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-354 | December 12, 2018   Page 13 of 18
       crime beyond the prescribed statutory maximum.” Id. (internal quotations

       admitted). Therefore, even though the trial court found aggravating

       circumstances in Baker’s case, it did not impose—nor could it have imposed—a

       sentence that was beyond the prescribed statutory maximum in violation of

       Blakely and Apprendi.


[17]   Baker also contends that Wheat was ineffective for failing to claim that the trial

       court abused its discretion by failing to explain why it was imposing

       consecutive sentences. However, the trial court found Baker to have been

       convicted of multiple offenses against multiple victims, which is sufficient

       reasoning for ordering consecutive sentences. See O’Connell v. State, 742 N.E.2d

       943, 952 (Ind. 2001) (emphasizing that multiple crimes or victims constitute a

       valid aggravating circumstance for imposing consecutive sentences).


[18]   Finally, Baker contends that Wheat was ineffective for failing to argue that his

       sentence was manifestly unreasonable in light of the nature of his offenses and

       his character. We note that at the time of Baker’s sentencing, the current

       Indiana Appellate Rule 7(B) was effective, which uses “inappropriate” as the

       standard rather than “manifestly unreasonable.” We may revise a sentence if,

       “after due consideration of the trial court’s decision, the Court finds that the

       sentence is inappropriate in light of the nature of the offense and the character

       of the offender.” Ind. Appellate Rule 7(B). “Sentencing is principally a

       discretionary function in which the trial court’s judgment should receive

       considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008)

       (internal citations omitted). The defendant bears the burden of proving that his

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-354 | December 12, 2018   Page 14 of 18
       sentence is inappropriate in the light of both the nature of his offense and his

       character. Gil v. State, 988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013).


[19]   The nature of Baker’s offenses does not support a reduction in his sentence.

       Baker was convicted of two counts of Class A felony child molestation and one

       count of Class C felony child molestation. Baker committed these offenses

       against two of his granddaughters and C.B.’s step-cousin, requiring them to

       have intercourse with and fellate him while in his tractor trailer and home.


[20]   Baker’s character also does not support a reduction in his sentence. Baker has

       been convicted of Class B felony criminal confinement, Class D felony theft,

       Class A misdemeanor resisting law enforcement, Class A misdemeanor battery,

       Class B misdemeanor disorderly conduct, and two counts of Class A

       misdemeanor criminal confinement. Despite Baker’s many contacts with the

       criminal justice system, starting in 1969, he has been unwilling to conform his

       behavior to societal norms. Baker’s sentence was not inappropriate, therefore he

       was not prejudiced by Wheat’s failure to raise a 7(B) challenge on direct appeal.

       Baker has failed to establish that Wheat provided ineffective assistance in this

       regard.


                                  G. Prosecutorial Misconduct
[21]   Baker contends that Wheat provided ineffective assistance by failing to raise a

       claim of prosecutorial misconduct. Baker specifically contends that the

       prosecutor committed improper vouching and elicited sympathy for the State’s

       witnesses. Of the prosecutor’s numerous statements which Baker alleges as

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-354 | December 12, 2018   Page 15 of 18
       misconduct, the one alleged as the most blatant example was in the State’s

       closing argument when the prosecutor, regarding the three victims’ testimony,

       stated “All three (3) of them agreed before you, when they were under oath to

       tell the truth as they remember it today.” Appellant’s App. Vol. VI p. 95. We

       have reviewed this statement and the others Baker has provided and find none

       of them to be improper vouching or elicitation of sympathy for victims but,

       rather, fair commenting on the evidence presented at trial. See Thomas v. State,

       965 N.E.2d 70, 77 (Ind. Ct. App. 2012), trans. denied (noting that while a

       prosecutor may not state his or her personal opinion regarding a witness’s

       credibility at trial, he or she may comment as to witness credibility if the

       assertions are based on reasons arising from the evidence presented at trial).

       Baker has failed to establish that Wheat provided IAAC in this regard.


                                    H. Stipulation of Evidence
[22]   Baker contends that Wheat was ineffective by failing to claim that the trial court

       abused its discretion by allowing the evidentiary stipulation between Baker and

       the State, which involved testimony that would have allegedly otherwise been

       inadmissible. “An abuse of discretion occurs when the trial court’s decision is

       clearly against the logic and effect of the facts and circumstances before the

       court or when the court misinterprets the law.” Johnson v. State, 36 N.E.3d 1130,

       1133 (Ind. Ct. App. 2015), trans. denied. We cannot conclude that the trial court

       abused its discretion by allowing an evidentiary stipulation that was a clear

       agreement by both parties.



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-354 | December 12, 2018   Page 16 of 18
                                                I. Plea Offer
[23]   Baker contends that Wheat was ineffective for failing to claim that Baker’s trial

       counsel provided ineffective assistance by not communicating to him alleged

       plea offers from the State. Baker specifically contends that he declined a plea

       offer during trial because he was inadequately informed by counsel and that

       counsel never disclosed another plea offer. At Baker’s PCR hearing, the post-

       conviction court asked Baker if he accepted the plea that was offered during

       trial, to which Baker responded, “On advice of my counsel I didn’t, no.”

       Appellant’s App. Vol. II p. 191. Moreover, Baker presented another plea offer

       he alleged to have discovered in his file sent by the public defender’s office,

       claiming it was never disclosed to him by trial counsel. However, the plea

       agreement was neither signed nor dated by the prosecuting attorney, and Baker

       presented no testimony from his trial counsel on the matter. “When counsel is

       not called as a witness to testify in support of a petitioner’s arguments, the post-

       conviction court may infer that counsel would not have corroborated the

       petitioner’s allegations.” Culvahouse, 819 N.E.2d at 863. The post-conviction

       court denied Baker relief on these claims, and Baker’s arguments on appeal are

       merely an invitation for us to reweigh the evidence, which we will not do.

       Mahone v. State, 742 N.E.2d 982, 984 (Ind. Ct. App. 2001), trans. denied. Baker

       has failed to establish that Wheat was ineffective in this regard.


                              J. Rehearing or Writ of Certiorari
[24]   Baker contends that Wheat was ineffective for failing to seek a rehearing from

       the Indiana Supreme Court or a writ of certiorari from the United States

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-354 | December 12, 2018   Page 17 of 18
       Supreme Court on the Indiana Supreme Court’s ruling on his jury unanimity

       claim. Baker does not explain why a request for rehearing or certiorari would

       have been granted, let alone establish that he would have achieved a ruling any

       more favorable than that handed down by the Indiana Supreme Court on

       transfer. Moreover, Baker has not established that failing to seek rehearing or

       certiorari falls below the objective standard of reasonableness based on

       prevailing professional norms, given that a majority of lawyers never even seek

       transfer. See Yerden v. State, 682 N.E.2d 1283, 1286 (Ind. Ct. App. 1997) (noting

       that “[a] healthy majority of lawyers who lose before the Indiana Court of

       Appeals, for example, elect not to seek transfer. On the face of it, without any

       explanation, a lawyer who does not petition for transfer has simply performed

       according to the statistical norm.”). Baker has failed to establish that Wheat’s

       representation constituted IAAC.



                                               Conclusion
[25]   We conclude that Baker’s sufficiency of the evidence claim is barred by waiver.

       We also find no merit in Baker’s various IAAC claims. Baker has failed to

       establish that the post-conviction court erred by denying him PCR.


[26]   The judgment of the post-conviction court is affirmed.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-354 | December 12, 2018   Page 18 of 18
