      MEMORANDUM DECISION                                                    Jan 29 2016, 9:19 am


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



      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      David Michael Jones                                       Gregory F. Zoeller
      Pendleton, Indiana                                        Attorney General of Indiana
                                                                George P. Sherman
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      David Michael Jones,                                      January 29, 2016

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                48A04-1502-PC-84
              v.                                                Appeal from the Madison Superior
                                                                Court.
      State of Indiana,                                         The Honorable Dennis D. Carroll,
                                                                Judge.
      Appellee-Respondent.                                      Cause No. 48D01-0809-PC-269




      Barteau, Senior Judge


                                       Statement of the Case
[1]   David Michael Jones appeals from the denial of his petition for post-conviction

      relief. We affirm.



      Court of Appeals of Indiana | Memorandum Decision 48A04-1502-PC-84 | January 29, 2016         Page 1 of 13
                                                    Issues
[2]   Jones raises several issues on appeal from the denial of his petition, which we

      restate as follows:


              I.       Whether the trial court erred by failing to conduct an in
                       camera inspection of Connie Scott’s psychiatric records
                       prior to trial;
              II.      Whether Jones’s trial counsel was ineffective by failing to
                       move to dismiss the criminal confinement charge and by
                       failing to locate a witness for trial;
              III.     Whether Jones’s appellate counsel rendered ineffective
                       assistance;
              IV.      Whether the State engaged in prosecutorial misconduct
                       during Jones’s trial;
              V.       Whether the State committed a discovery violation by
                       adding a witness to its witness list on the day of trial;
              VI.      Whether there is sufficient evidence to support Jones’s
                       conviction for criminal confinement;
              VII.     Whether the State committed reversible error by failing to
                       file an Evidence Rule 404(b) motion prior to trial;
              VIII. Whether the trial court erred by allowing the State to
                    amend the criminal confinement charge on the day of trial;
                    and
              IX.      Whether the trial court erred by denying Jones’s request
                       for a continuance at trial.


                               Facts and Procedural History
[3]   Jones and Connie Scott were first friends and later became romantically

      involved. In March 2005, after Jones was paroled from prison for his


      Court of Appeals of Indiana | Memorandum Decision 48A04-1502-PC-84 | January 29, 2016   Page 2 of 13
      conviction of residential entry against Scott, he moved in with her. Two

      separate incidents between the two led to the filing of further criminal charges

      against Jones. First, after choking Scott to the point of unconsciousness and

      extreme pain, and confining her in her home, Jones was charged under Cause

      Number 48D01-0506-FC-175 (“FC-175”). A few months later, in the presence

      of several people attending a social gathering at Scott’s house, Jones threatened

      to kill Scott and her cousin. Charges were filed against him related to that

      incident under Cause Number 48D01-0508-FD-239 (“FD-239”).


[4]   The charges under FC-175 and FD-239 were consolidated for trial. A jury

      found Jones guilty of all charges and he was found to be an habitual offender.

      The trial court imposed an aggregate sentence of forty-five years. Jones

      appealed raising nine issues for review, and his convictions and sentence were

      affirmed in a memorandum decision, which provides more factual and

      procedural detail. Jones v. State, No. 48A02-0611-CR-999 (Ind. Ct. App. Nov.

      8, 2007), trans. denied.


[5]   Next, Jones filed a petition for post-conviction relief. In his original petition,

      Jones raised twenty-seven claims. In his amended petition, Jones added

      twenty-six subsections to one of the original claims, seven subsections to

      another of the original claims, and alleged twenty-two separate acts in support

      of his allegation of ineffective assistance of trial counsel. After the evidentiary

      hearing was held, the post-conviction court issued findings of fact and

      conclusions of law denying Jones’s petition.



      Court of Appeals of Indiana | Memorandum Decision 48A04-1502-PC-84 | January 29, 2016   Page 3 of 13
                                   Discussion and Decision
                                         Standard of Review
[6]   A defendant who has exhausted the direct appeal process may challenge the

      correctness of his conviction and sentence by filing a post-conviction petition.

      Parish v. State, 838 N.E.2d 495, 499 (Ind. Ct. App. 2005). Post-conviction

      procedures do not provide an opportunity for a super-appeal. Id. Rather, they

      create a narrow remedy for subsequent collateral challenges to convictions that

      must be based on grounds enumerated in the post-conviction rules. Id. Post-

      conviction proceedings are civil proceedings, and a defendant must establish his

      claims by a preponderance of the evidence. Id.


[7]   In reviewing the judgment of a post-conviction court, this court considers only

      the evidence and reasonable inferences supporting its judgment. Hall v. State,

      849 N.E.2d 466, 468 (Ind. 2006). The post-conviction court is the sole judge of

      the evidence and the credibility of witnesses. Id. To prevail on appeal from the

      denial of post-conviction relief—a negative judgment—the petitioner must

      show that the evidence as a whole leads unerringly and unmistakably to a

      conclusion opposite that reached by the post-conviction court. Id. Only where

      the evidence is without conflict and leads to but one conclusion, and the post-

      conviction court has reached the opposite conclusion, will the court’s findings

      or conclusions be disturbed as being contrary to law. Id. at 469.




      Court of Appeals of Indiana | Memorandum Decision 48A04-1502-PC-84 | January 29, 2016   Page 4 of 13
                              I. Pre-Trial Inspection of Records
[8]    Jones claims that the trial court erred by failing to inspect Scott’s psychiatric

       records in camera prior to trial.


[9]    Not all issues are available in the context of collateral challenges to convictions

       via post-conviction proceedings. Timberlake v. State, 753 N.E.2d 591, 597 (Ind.

       2001). The issues must be based on grounds enumerated in the post-conviction

       rules. Id. If an issue was known and available, but not raised on direct appeal,

       it is waived. Id. This issue was known and available, but not raised on direct

       appeal. As such, this claim is barred by waiver.


                       II. Ineffective Assistance of Trial Counsel
[10]   In a claim of a violation of the right to effective assistance of counsel, a

       defendant must establish the two components set forth in Strickland v.

       Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674

       (1984); namely that counsel’s performance was deficient, so much so that it fell

       below an objective standard of reasonableness such that the errors resulted in a

       denial of the right to counsel, and that counsel’s deficient performance

       prejudiced the defense, such that there is a reasonable probability that the

       outcome of the proceeding would have been different. Id. at 603.


[11]   Jones makes two specific allegations of ineffective assistance. First, he claims

       that trial counsel should have filed a motion to dismiss the criminal

       confinement charge. That charge was added by amendment approximately ten

       days after the omnibus date, October 18, 2005, but well before the start of his

       Court of Appeals of Indiana | Memorandum Decision 48A04-1502-PC-84 | January 29, 2016   Page 5 of 13
       trial on September 5, 2006. He claims that the failure to file the motion was

       improper in light of the Supreme Court’s decision in Fajardo v. State, 859 N.E.2d

       1201 (Ind. 2007).


[12]   The amended information in FC-175, filed on October 27, 2005, charged Jones

       with battery resulting in serious bodily injury, and added the charge of criminal

       confinement, as a Class B felony, as well as an habitual offender allegation. At

       the time the charges were filed “case law regularly permitted amendments

       related to matters of substance as long as the substantial rights of the defendant

       were not prejudiced, regardless of whether the amendments were untimely

       under I.C. § 35-34-1-5(b).” Hurst v. State, 890 N.E.2d 88, 95 (Ind. Ct. App.

       2008), trans. denied.


[13]   The amendment occurred more than ten months prior to Jones’s trial. Trial

       counsel likely determined that there was no prejudice to Jones’s substantial

       rights and that a motion to dismiss likely would fail. On review, we will not

       lightly speculate as to what may have been an advantageous trial strategy given

       that counsel should be shown deference in the choice of which strategy is best at

       the time and under the circumstances. Whitener v. State, 696 N.E.2d 40, 42

       (Ind. 1998). Additionally, “counsel’s representation cannot be deemed to have

       fallen below an objective standard of reasonableness for failing to anticipate a

       change in the law.” Overstreet v. State, 877 N.E.2d 144, 161 (Ind. 2007). The

       Supreme Court’s opinion in Fajardo and the legislature’s response to the opinion

       occurred well after the charges were amended and the trial was conducted.



       Court of Appeals of Indiana | Memorandum Decision 48A04-1502-PC-84 | January 29, 2016   Page 6 of 13
       Jones has failed to establish ineffective assistance of trial counsel on this

       ground.


[14]   Next, Jones contends that trial counsel was ineffective for failing to locate a

       witness, Stephanie Chambers, to testify at trial. At trial, Jones’s counsel

       informed the trial court as follows:

               Ms. Chambers is a pretty transient character. We’re trying to
               find her. We went to two different apartments in The Oaks
               Apartment complex trying to find her. We had some
               information about her mother, Diane Taylor. We called her on a
               cell phone. We believe that Ms. Taylor lived over in Hickory
               Knoll Apartment complex. We went over there to try and find
               her there. We eventually did make phone contact with Ms.
               Taylor but she refused to tell us anything about Ms. Chambers.
       Tr. p. 374.


[15]   Jones has not come forward with evidence that Chambers could have been

       found before trial. The record reveals counsel’s efforts to locate Chambers.

       Also, Chambers did not testify at the post-conviction hearing. Therefore, Jones

       has failed to show what evidence the investigation would have produced. To

       succeed on a claim of ineffective assistance of counsel for failure to investigate,

       evidence of what an adequate investigation would have produced is necessary.

       Woods v. State, 701 N.E.2d 1208, 1214 (Ind. 1998). Jones’s claim of ineffective

       assistance of trial counsel fails on this ground as well.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1502-PC-84 | January 29, 2016   Page 7 of 13
                   III. Ineffective Assistance of Appellate Counsel
[16]   Claims of ineffective assistance of appellate counsel are considered under the

       same standard of review as that of claims against trial counsel. Overstreet, 877

       N.E.2d at 165. A petitioner must show appellate counsel was deficient in his

       performance and that the deficiency resulted in prejudice to the petitioner. Id.

       Our courts have recognized three basic categories of alleged ineffective

       representation by appellate counsel. Those categories are denying access to an

       appeal, failing to raise an issue on appeal, and failing to present an issue

       completely and effectively. Bieghler v. State, 690 N.E.2d 188, 193-95 (Ind.

       1997).


[17]   Jones argues that appellate counsel was ineffective for failing to raise on direct

       appeal an issue alleging ineffective assistance of trial counsel based on

       statements trial counsel made when requesting a continuance that was not

       granted. Jones fails to develop that argument, however, which results in a

       waiver of that argument. Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct. App.

       2005), trans. denied.


[18]   “For the denial of a continuance to be reversible error, the defendant must

       demonstrate the prejudicial abuse of discretion by a specific showing that

       additional time would have aided the defense.” Vance v. State, 640 N.E.2d 51,

       56 (Ind. 1994). Jones has failed to make this specific showing. The trial court

       made a record of the actions that were taken to address counsel’s concerns

       about his readiness for trial. Tr. pp. 70-77.


       Court of Appeals of Indiana | Memorandum Decision 48A04-1502-PC-84 | January 29, 2016   Page 8 of 13
[19]   Which issues to raise is one of the most important strategic decisions appellate

       counsel makes. Bieghler, 690 N.E.2d at 193. On review, we are deferential to

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

       unless that decision was unquestionably unreasonable. Id. at 194.                       Jones has

       not demonstrated that this unraised issue was significant and obvious on the

       face of the record and that the issue was more likely to result in reversal or an

       order for a new trial than the nine issues raised by appellate counsel on direct

       appeal. See id.


                                  IV. Prosecutorial Misconduct
[20]   Jones contends that several statements made by the prosecutor at trial amount

       to prosecutorial misconduct. However, Jones does not demonstrate that he

       objected to the comments at trial.


[21]   When a party fails to present a contemporaneous objection at trial asserting an

       occurrence of prosecutorial misconduct, the issue is waived for appellate

       review. Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002). Therefore, the issue

       would have been deemed waived had Jones raised it on direct appeal.

       Nevertheless, the issue was available on direct appeal.


[22]   An issue that is waived for failure to raise a contemporaneous objection can be

       reviewed on direct appeal if the reviewing court determines that a fundamental

       error occurred. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). However, a

       petitioner cannot avoid the application of the waiver doctrine in a post-

       conviction proceeding by arguing that it does not apply because the challenge

       Court of Appeals of Indiana | Memorandum Decision 48A04-1502-PC-84 | January 29, 2016     Page 9 of 13
       raises fundamental error. State v. Hernandez, 910 N.E.2d 213, 216 (Ind. 2009).

       In post-conviction proceedings, allegations of error at trial are generally

       cognizable only when they show a deprivation of the right to effective counsel

       or issues demonstrably unavailable at the time of trial or direct appeal. Id.

       Because Jones has not made this showing, his claim here fails.


                                       V. Discovery Violation
[23]   Jones argues that a discovery violation occurred at trial when the State added a

       witness to its witness list the day Jones’s trial started. Because this alleged

       violation occurred at trial it was known and available as an argument on direct

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

       waived.” Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999).


                                    VI. Sufficiency of Evidence
[24]   Jones was convicted of criminal confinement. In this appeal he challenges the

       sufficiency of the evidence supporting that conviction. Specifically, he claims

       that there was no evidence that Scott’s injuries resulted from being removed

       from one place and taken to another. He also claims that there is no evidence

       that he used force.


[25]   On direct appeal, Jones challenged the sufficiency of the evidence to support his

       conviction of criminal confinement, arguing that there was no evidence that the

       victim’s injuries were such that they constituted serious bodily injury. Jones v.

       State, No. 48A02-0611-CR-999, slip op. at 11-12 (Ind. Ct. App. Nov. 8, 2007),

       trans. denied. Therefore, these additional challenges to the sufficiency of the

       Court of Appeals of Indiana | Memorandum Decision 48A04-1502-PC-84 | January 29, 2016   Page 10 of 13
       evidence supporting that conviction were available but not raised on direct

       appeal. As such, these challenges are waived. See Rouster, 705 N.E.2d at 1003.


                                     VII. Evidence Rule 404(b)
[26]   Jones argues that the State violated Evidence Rule 404(b) by failing to file a

       motion ten days prior to trial for permission to play the 911 recording relating

       to Jones’s residential entry conviction involving the same victim. Jones’s trial

       counsel objected to the admission of the evidence at trial. As such, this

       argument, which was known and available, but not raised on direct appeal, is

       waived. Id.


               VIII. Amendment of Criminal Confinement Charge
[27]   Jones claims that the trial court’s decision to allow the State to amend the

       criminal confinement charge on the day of trial was improper. Jones raised this

       very issue on direct appeal and it was decided adversely. See Jones v. State, No.

       48A02-0611-CR-999, slip op. at 5-10 (Ind. Ct. App. Nov. 8, 2007), trans. denied.

       If an issue was raised on appeal, but decided adversely, it is res judicata.

       Timberlake, 753 N.E.2d at 597.


                                    IX. Denial of Continuance
[28]   Jones argues that the trial court erred by denying his counsel’s request for a

       continuance. This issue was known and available, but not raised on direct

       appeal. As such, this issue has been waived. Id.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1502-PC-84 | January 29, 2016   Page 11 of 13
[29]   Jones appears to make the additional argument that the trial court’s denial

       amounts to fundamental error. “A petitioner for post-conviction relief cannot

       avoid the application of the waiver doctrine by arguing that it does not apply

       because the challenge raises fundamental error.” Hernandez, 910 N.E.2d at 216.

       “In post-conviction proceedings, complaints that something went awry at trial

       are generally cognizable only when they show deprivation of the right to

       effective counsel or issues demonstrably unavailable at the time of trial or direct

       appeal.” Id. (quoting Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002)). To the

       extent this appears to present a claim of ineffective assistance of trial counsel,

       we address it.


[30]   Appellate courts review the denial of motions for continuance for an abuse of

       discretion. Davis v. State, 487 N.E.2d 817, 820 (Ind. 1986). We will find an

       abuse of discretion where the record shows that the defendant was prejudiced

       by the failure to grant the continuance. Id. Trial counsel explained in his

       written motion and argument why he sought a continuance. The trial court

       made a record of the myriad actions that had already been taken to address

       counsel’s concerns about his readiness for trial. Tr. pp. 70-77. The record does

       not show that Jones was prejudiced by the denial of counsel’s motion for

       continuance. Thus, Jones has not established that he received ineffective

       assistance of counsel for failure to successfully obtain a continuance.


                                                Conclusion
[31]   In light of the foregoing we affirm the post-conviction court’s decision.


       Court of Appeals of Indiana | Memorandum Decision 48A04-1502-PC-84 | January 29, 2016   Page 12 of 13
[32]   Affirmed.


       Kirsch, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1502-PC-84 | January 29, 2016   Page 13 of 13
