MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                FILED
regarded as precedent or cited before any                                  Aug 15 2019, 10:28 am

court except for the purpose of establishing                                    CLERK
                                                                            Indiana Supreme Court
the defense of res judicata, collateral                                        Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.


APPELLANT, PRO SE                                        ATTORNEYS FOR APPELLEE
Lavern Baltimore                                         Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lavern Baltimore,                                        August 15, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         22A01-1707-PC-1562
        v.                                               Appeal from the Floyd Superior
                                                         Court
State of Indiana,                                        The Honorable Susan L. Orth,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         22D01-1108-PC-5



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 22A01-1707-PC-1562 | August 15, 2019              Page 1 of 14
                                       Statement of the Case

[1]   Lavern Baltimore (“Baltimore”), pro se, appeals the post-conviction court’s

      denial of his petition for post-conviction relief (“PCR”). On appeal, Baltimore

      argues that he received ineffective assistance of counsel. Concluding that

      Baltimore was not denied effective assistance of trial counsel, we affirm the

      post-conviction court’s judgment.


[2]   We affirm.


                                                     Issue

              Whether the post-conviction court erred in denying Baltimore’s
              petition.

                                                     Facts

[3]   The facts of the underlying offenses, as found by this Court, are as follows:


              In June 2006, Sandra Wright and David Whitten, a married
              couple, lived in a Floyd County apartment complex with their
              son. Sandra is deaf, and David is hard of hearing. Baltimore
              lived in the same apartment complex as Sandra and David. On
              the evening of June 15, 2006, Baltimore knocked on Sandra and
              David’s door and asked David for a cigarette. Although David
              asked Baltimore to leave, Baltimore came back multiple times
              and continued to knock on the door. Sandra eventually fell
              asleep in the family room with the couple’s son, and David fell
              asleep in the bedroom.

              At approximately 2:00 a.m., Sandra awoke and saw Baltimore
              inside the apartment, very close to her. Baltimore grabbed
              Sandra by the neck and arms, leaving marks on her skin.
              Baltimore picked up Sandra’s son and kissed him. Sandra, who

      Court of Appeals of Indiana | Memorandum Decision 22A01-1707-PC-1562 | August 15, 2019   Page 2 of 14
              believed Baltimore was “using drugs and was drunk,” took her
              son and put him back to bed. Tr. p. 305. Baltimore then grabbed
              Sandra’s neck and dragged her into the hallway, placing his
              hands under Sandra’s shorts and on her breasts. David awoke to
              his wife’s screams and found Baltimore in the family room with
              one hand on Sandra’s face and the other on her breast. David
              told Baltimore to leave and he obeyed. After Baltimore left,
              David tried to close the front door of the apartment but was
              unable to do so because it was damaged.

      Baltimore v. State, 878 N.E.2d 253, 355-56 (Ind. Ct. App. 2007), trans. denied.


[4]   On June 19, 2006, the State charged Baltimore with Class A felony burglary

      and Class D felony sexual battery. In August 2006, a jury found Baltimore

      guilty as charged. At the sentencing hearing in November 2006, the trial court

      sentenced Baltimore to fifty-three (53) years in the Department of Correction.

      Thereafter, on direct appeal, Baltimore argued that: (1) the trial court

      committed fundamental error when it permitted the victim’s sign language

      interpreter to testify as a witness for the State; (2) there was insufficient evidence

      to support his Class A felony burglary conviction; (3) his convictions violated

      double jeopardy principles; and (4) the trial court’s sentence was inappropriate.

      This Court affirmed his convictions and sentence in December 2007.


[5]   In August 2011, Baltimore filed a pro se petition for PCR. On November 7,

      2011, the post-conviction court summarily denied Baltimore’s petition, and

      Baltimore appealed that denial. Thereafter, on August 17, 2012, this Court

      remanded the case to the post-conviction court to enter findings of fact and

      conclusions of law. On September 24, 2012, the post-conviction court entered a

      revised order summarily denying Baltimore’s petition. This Court reversed and


      Court of Appeals of Indiana | Memorandum Decision 22A01-1707-PC-1562 | August 15, 2019   Page 3 of 14
      remanded, holding that because Baltimore pled facts that raised issues of

      possible merit, the post-conviction court erred by summarily denying his

      petition.


[6]   In August 2016, Baltimore filed an amended petition for PCR. Baltimore

      alleged multiple grounds of ineffective assistance of trial counsel. Specifically,

      Baltimore alleged that his trial counsel was ineffective for failing to: (1) locate,

      interview, and subpoena Matthew McMahan (“McMahan”), the former owner

      of the apartment building; (2) file a motion to dismiss; (3) object to the

      testimony of a State’s witness; and (4) object to various instances of

      prosecutorial misconduct, which included comments made by the prosecutor

      during open and closing arguments. The post-conviction court held a hearing

      on February 23, 2017. At the hearing, Baltimore called his trial attorney,

      Amber Shaw (“Attorney Shaw”), and McMahan as witnesses.


[7]   When asked why she did not object to the prosecutor’s comments made during

      opening and closing arguments, Attorney Shaw testified that she typically does

      not object during either because:


              it’s usually a strategic decision to not do that because it looks bad
              to the jury when you interrupt them. And unless it’s particularly
              egregious it can’t be overcome and they also can’t unhear it. It’s
              sometimes better to not draw attention to something like that that
              they’ve said versus making it a big thing and redrawing attention
              to the comment in front of the jury. So sometimes you choose to
              just kinda let it pass as opposed to drawing attention to it. So
              that would have been a strategic decision as far as a trial.




      Court of Appeals of Indiana | Memorandum Decision 22A01-1707-PC-1562 | August 15, 2019   Page 4 of 14
      (Tr. 16-17). On June 14, 2017, the post-conviction court denied Baltimore’s

      petition. He now appeals.


                                                  Decision

[8]   Baltimore argues that the post-conviction court erred in denying his petition.

      Post-conviction proceedings afford petitioners a limited opportunity to raise

      issues that were unavailable or unknown at trial and direct appeal. Pannell v.

      State, 36 N.E.3d 477, 486 (Ind. Ct. App. 2015). Such proceedings are not

      “super appeals” through which convicted persons can raise issues that they

      failed to raise at trial or on direct appeal. Id. Post-conviction proceedings are

      civil in nature, and petitioners bear the burden of proving their grounds for

      relief by a preponderance of the evidence. Id. A party appealing from a

      negative judgment must establish that the evidence is without conflict and, as a

      whole, unmistakably and unerringly points to a conclusion contrary to the post-

      conviction court’s decision. Conner v. State, 711 N.E.2d 1238, 1244 (Ind. 1999),

      reh’g denied, cert. denied.


[9]   Where, as here, the post-conviction court makes findings of fact and

      conclusions of law, we cannot affirm the judgment on any legal basis, but

      rather, 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. 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

      Court of Appeals of Indiana | Memorandum Decision 22A01-1707-PC-1562 | August 15, 2019   Page 5 of 14
       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. We must also acknowledge that the judge who

       presided over Baltimore’s original trial is also the judge who presided over the

       post-conviction proceedings, and therefore the post-conviction court’s findings

       and judgment are entitled to greater than usual deference. See State v. Dye, 784

       N.E.2d 469, 476 (Ind. 2003) (noting that because the judge presided at both the

       original trial and post-conviction hearing, the judge was in “an exceptional

       position” to assess weight and credibility of factual evidence and whether

       defendant was deprived of a fair trial).1


[10]   Baltimore contends that the post-conviction court erred in denying his claim of

       ineffective assistance of trial counsel. We review claims of ineffective assistance

       of trial counsel under the two-pronged test established in Strickland v.

       Washington, 466 U.S. 668 (1984). The defendant must show that trial counsel’s

       performance fell below an objective standard of reasonableness based on




       1
         Baltimore also contends that the post-conviction court “failed to enter specific findings of fact and
       conclusions of law on all issues presented” in his PCR petition as required by Post-Conviction Rule 1(6).
       (Baltimore’s Br. 15). Indiana Post-Conviction Rule 1(6) requires a post-conviction court to make “specific
       findings of fact, and conclusions of law on all issues presented, whether or not a hearing is held.” The post-
       conviction court did not specifically address Baltimore’s claims of ineffective assistance of counsel for failing
       to object to: (1) two allegations of prosecutorial misconduct during closing arguments; and (2) the testimony
       of one of the State’s witnesses. However, our court has held that a post-conviction court’s failure to enter
       specific findings of fact and conclusions of law in ruling on a post-conviction petition is not reversible error
       when the issues are sufficiently presented for review and addressed by the parties. Adcock v. State, 22 N.E.3d
       720, 724 (Ind. Ct. App. 2014). If the facts underlying a claim are not in dispute, the issues are sufficiently
       clear, and both parties address the merits in their briefs, remand for more specific findings by the post-
       conviction court is not necessary. Id. The underlying facts here are not in dispute, the issues are sufficiently
       clear, and both parties address the merits in their briefs. Consequently, we will address the issues rather than
       remanding to the post-conviction court.

       Court of Appeals of Indiana | Memorandum Decision 22A01-1707-PC-1562 | August 15, 2019               Page 6 of 14
       prevailing professional norms and that there is a reasonable probability that, but

       for counsel’s errors, the result of the proceeding would have been different.

       Moody v. State, 749 N.E.2d 65, 67 (Ind. Ct. App. 2001), trans. denied. Isolated

       mistakes, poor strategy, inexperience, and instances of bad judgment do not

       necessarily render representation ineffective. Reed v. State, 866 N.E.2d 767, 769

       (Ind. 2007). Moreover, because counsel is afforded considerable discretion in

       choosing strategy and tactics, a strong presumption arises that counsel rendered

       adequate assistance. Id.


[11]   Here, Baltimore contends that Attorney Shaw rendered ineffective assistance

       for the following reasons: (1) she did not locate, interview, and subpoena

       certain witnesses; (2) she failed to file a motion to dismiss the sexual battery

       charging information; (3) she failed to object to the testimony of a State’s

       witness; and (4) she did not object to various instances of prosecutorial

       misconduct.


[12]   Baltimore’s first claim of ineffectiveness arises from the allegation that counsel

       failed to investigate witnesses. According to Baltimore, he was “prejudiced as a

       result of trial counsel[’s] failure to locate and interview his witnesses.” 2

       (Baltimore’s Br. 20). To succeed on an ineffective assistance claim regarding a

       failure to interview or depose a witness, a post-conviction petitioner must show




       2
        Baltimore refers to “witnesses,” but he identified only McMahan and did not present any evidence of other
       witnesses or how they could have assisted him. Therefore, we will address only his claim regarding
       McMahan.

       Court of Appeals of Indiana | Memorandum Decision 22A01-1707-PC-1562 | August 15, 2019         Page 7 of 14
       deficient performance. Williams v. State, 771 N.E.2d 70, 74 (Ind. 2002). “The

       question is what additional information may have been gained from further

       investigation and how the absence of that information prejudiced his case.” Id.


[13]   At the post-conviction hearing, Baltimore called McMahan, who did not testify

       at trial. Baltimore alleges that had counsel located and interviewed McMahan

       before trial, he would have testified that “the [S]tate’s exhibits . . . did not depict

       Sandra’s apartment door.” (Baltimore’s Br. 20). At the post-conviction

       hearing, McMahan testified that he only entered the apartment building

       approximately ten times, and he did not recognize the exhibit photographs of

       Sandra and David’s apartment door. On appeal, Baltimore has failed to state

       what information counsel would have gained by interviewing McMahan. Nor

       does Baltimore state how the alleged failure to interview McMahan prejudiced

       his case. Thus, Baltimore’s contention that his trial counsel was ineffective for

       failing to interview McMahan is without merit.


[14]   Second, Baltimore asserts that counsel was ineffective for not moving to dismiss

       the charging information. Specifically, Baltimore alleges that Attorney Shaw

       should have moved to dismiss the sexual battery charging information based on

       “Sandra’s own undisputed [deposition] testimony that Baltimore almost

       touched her breasts and vagina.” (Baltimore’s Br. 24). In order to prevail on

       his claim that trial counsel provided ineffective assistance by failing to file a

       motion to dismiss the sexual battery charging information, Baltimore bore the

       burden of demonstrating a reasonable probability that the motion to dismiss



       Court of Appeals of Indiana | Memorandum Decision 22A01-1707-PC-1562 | August 15, 2019   Page 8 of 14
       would have been granted if made. See Garrett v. State, 992 N.E.2d 710, 723 (Ind.

       2013).


[15]   When asked during the post-conviction hearing why she did not move to

       dismiss the State’s charging information, Attorney Shaw testified that Sandra’s

       deposition testimony involved “a factual dispute” and the testimony “[wa]s not

       one of the grounds allowed under Indiana law to file a Motion to Dismiss.”

       (Tr. 14). Indeed, INDIANA CODE § 35-34-1-4 lists several grounds upon which

       an information may be dismissed. It is clear, as the State points out, that “[a]

       discrepancy between the charge and the victim’s deposition testimony is not

       included.” (State’s Br. 17). Because Baltimore has failed to show that a motion

       to dismiss would have been granted, he failed to show that counsel rendered

       deficient performance.


[16]   Baltimore next argues that his counsel’s failure to object to the testimony of one

       of the State’s witnesses amounts to ineffective representation. Specifically,

       Baltimore alleges that he was prejudiced by Attorney Shaw’s failure to object to

       Officer Kesling’s testimony that “[i]t was an attempted rape scenario in my

       opinion.” (DA Tr. Vol. 2 at 143).3 To prove ineffective assistance of counsel

       due to the failure to object, Baltimore must prove that an objection would have

       been sustained if made and that he was prejudiced by the failure. Wrinkles v.

       State, 749 N.E.2d 1179, 1192 (Ind. 2001), cert. denied.




       3
           We will cite to the direct appeal transcript using the letters “DA.”


       Court of Appeals of Indiana | Memorandum Decision 22A01-1707-PC-1562 | August 15, 2019   Page 9 of 14
[17]   Here, when asked why she did not object, Attorney Shaw explained that she

       “didn’t feel it was warranted.” (Tr. 23). Because we recognize that there is a

       strong presumption that counsel rendered adequate legal assistance and afford

       trial counsel “considerable discretion in choosing strategy and tactics[,]” we will

       accord those decisions deference. Timberlake v. State, 753 N.E.2d 591, 597 (Ind.

       2001), reh’g denied, cert. denied. Baltimore has failed to show that an objection

       would have been sustained or that he was prejudiced by the failure, and

       therefore he has failed to overcome the strong presumption of effective

       assistance of counsel. See Smith v. State, 822 N.E.2d 193, 202 (Ind. Ct. App.

       2005) (holding that to overcome the strong presumption of adequate legal

       assistance, a petitioner must offer “strong and convincing evidence” to the

       contrary), trans. denied.


[18]   Finally, Baltimore argues that he received ineffective representation when his

       trial counsel failed to object to “various instances” of prosecutorial misconduct.

       (Baltimore’s Br. 50). As explained above, to prove ineffective assistance of

       counsel due to the failure to object, Baltimore must prove that an objection

       would have been sustained if made and that he was prejudiced by the failure.

       Wrinkles, 749 N.E.2d at 1192. Baltimore first alleges that during opening

       statements, his counsel should have objected when the prosecuting attorney

       expressed his personal opinion regarding Baltimore’s guilt and character.

       Baltimore next alleges that during closing arguments, Attorney Shaw should

       have objected when the prosecuting attorney expressed his personal opinion

       and vouched for the truthfulness of a witness. Baltimore also argues that


       Court of Appeals of Indiana | Memorandum Decision 22A01-1707-PC-1562 | August 15, 2019   Page 10 of 14
       Attorney Shaw rendered ineffective assistance by failing to object to the

       prosecutor’s references to him by race during the trial.


[19]   We first address Baltimore’s argument that Attorney Shaw should have

       objected during opening statements when the prosecutor stated that “the felony

       [Baltimore] intended to commit was sexual battery, more than likely rape.

       That’s where he was going with this until he got caught.” (DA Tr. Vol. 1 at

       104). He also argues that it was improper for the prosecutor to show his picture

       with the word guilty across his face during opening statements, and then for the

       prosecutor to state:


               But you will be able to see through the evidence, through the
               words, through the pictures, through the signs, that Lavern
               Baltimore is more than just guilty, he was a sexual predator on
               June 16th. He saw somebody weak, smaller, and he took
               advantage of her. You may think that that is the conclusion of
               the case. I say not. I think that this case is not about the
               [wrongdoings] and the evil intent of the Defendant. It’s about
               the courage and strength of somebody less fortunate.

       (DA Tr. Vol. 1 at 106).


[20]   Although Attorney Shaw did not object, she explained during the post-

       conviction hearing that she typically does not object during opening statements

       because “[i]t’s sometimes better to not draw attention to something . . . that

       they’ve said versus making it a big thing and redrawing attention to the

       comment in front of the jury . . . .” (Tr. 16). Strategic decisions do not amount

       to ineffective assistance of counsel. See Potter v. State, 684 N.E.2d 1127, 1133

       (Ind. 1997) (holding that a failure to object is not ineffective assistance of


       Court of Appeals of Indiana | Memorandum Decision 22A01-1707-PC-1562 | August 15, 2019   Page 11 of 14
       counsel “if counsel’s failure to object was the result of trial strategy”).

       Accordingly, Baltimore has failed to show that his counsel rendered ineffective

       assistance of counsel.


[21]   Baltimore next argues that Attorney Shaw should have objected to the

       following closing argument regarding David:


               He has a trach, which makes it difficult to talk. Before we go
               there, there was you know . . . that took a lot of courage for that
               man to come here and testify. I mean, you know, he came to
               court in his best clothes . . . and he was very believable, he told
               you what you knew, what he saw, and overcame, I think, a lot of
               his own problems to tell you what happened. And both of those
               were tough things and that makes it tough. It makes it even
               tougher than it normally would.

       (DA Tr. Vol. 2 at 117). He also asserts that counsel should have objected when

       the prosecutor argued on rebuttal that “Baltimore picked on somebody and

       chose somebody to assault, to batter, to possibly rape, because of their

       condition.” (DA Tr. Vol. 2 at 139).


[22]   Here, Attorney Shaw testified that not objecting during closing arguments is a

       “strategic decision to not draw attention to something that [the State] said.”

       (Tr. 18). As previously explained, strategic decisions do not necessarily amount

       to ineffective assistance of counsel. See Potter, 684 N.E.2d at 1133.

       Accordingly, Baltimore has failed to show that an objection would have been

       sustained or that he was prejudiced by the failure.


[23]   Additionally, Baltimore contends that his counsel should have objected when

       the prosecutor referred to him during trial as “the black man” when questioning

       Court of Appeals of Indiana | Memorandum Decision 22A01-1707-PC-1562 | August 15, 2019   Page 12 of 14
       Sandra. (Baltimore’s Br. 52). The victim, Sandra, is deaf and testified with the

       assistance of an American Sign Language interpreter. Initially, Sandra tried to

       identify Baltimore by spelling his name. She signed “L-e-a-v-e[]” for his first

       name and “B-l-i-m-e-r-e[]” for his last name. (DA Tr. Vol. 2 at 40). When this

       proved to be too difficult, she identified and spoke about Baltimore by referring

       to him as “the black man.” Attorney Shaw testified at the post-conviction

       hearing that examining Sandra “was very difficult.” (Tr. 38). She further

       explained that the attorneys “had to be careful in how [they] asked questions

       because the sign language interpreter couldn’t relay questions if they were too

       descriptive.” (Tr. 38). Attorney Shaw also explained that “[y]ou had to kinda

       be very narrow and so you kinda just had to use very basic terms because there

       wouldn’t be a sign for everything.” (Tr. 38).


[24]   The post-conviction court found that “[i]n order to question [Sandra] at trial, it

       was necessary for the interpreter, the State and the Defense Counsel to also

       refer to [Baltimore] as ‘[t]he [b]lack [m]an.’” (App. 93). Because the references

       to Baltimore were not based on racial animosity, but rather for the purpose of

       effectively communicating with Sandra to avoid confusion, Baltimore has failed

       to show that an objection would have been sustained or that his counsel’s

       performance was deficient. See Potter, 684 N.E.2d at 1133.


[25]   Baltimore was required to prove to the post-conviction court that his counsel’s

       performance was substandard and that the deficient performance prejudiced his

       defense. The post-conviction court rejected Baltimore’s claims of ineffective

       assistance of counsel and denied him post-conviction relief. In this appeal,

       Court of Appeals of Indiana | Memorandum Decision 22A01-1707-PC-1562 | August 15, 2019   Page 13 of 14
       Baltimore has not demonstrated that the evidence as a whole leads

       unmistakably and unerringly to a conclusion contrary to the decision of the

       post-conviction court. Accordingly, we affirm the post-conviction court’s

       judgment.


[26]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 22A01-1707-PC-1562 | August 15, 2019   Page 14 of 14
