      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                                      Mar 10 2016, 7:54 am

      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      John Andrew Goodridge                                    Gregory F. Zoeller
      Evansville, Indiana                                      Attorney General of Indiana
                                                               George P. Sherman
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jacob Aaron Phillips,                                    March 10, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               82A01-1504-PC-287
              v.                                               Appeal from the
                                                               Vanderburgh Superior Court
      State of Indiana,                                        The Honorable
      Appellee-Plaintiff.                                      Robert J. Pigman, Judge
                                                               Trial Court Cause No.
                                                               82D03-1312-PC-13



      Kirsch, Judge.


[1]   Jacob Aaron Phillips (“Phillips”) appeals the post-conviction court’s denial of

      his petition for post-conviction relief. On appeal, he raises the followed restated


      Court of Appeals of Indiana | Memorandum Decision 82A01-1504-PC-287 | March 10, 2016        Page 1 of 14
      issue: whether he received ineffective assistance of trial counsel when pleading

      guilty.


[2]   We affirm.


                                    Facts and Procedural History
[3]   In April 1999, Phillips married K.P. (“Mother”). They have four children

      together.1 At the time that they married, Mother also had a daughter, B.L.,

      born in or around 1993.2 Near the end of April 2010, the child protective

      services (“CPS”) telephone hotline received a call from an individual who

      shared with CPS that she had learned from B.L., who was then seventeen years

      old, that B.L.’s stepfather, Phillips, had “messed with” B.L. and that Phillips

      had been having sex with B.L. since she was in the fourth grade. Pet’r’s Ex. A.

      Authorities thereafter interviewed B.L., who described how Phillips had

      touched her inappropriately, including “fingering” her, having vaginal

      intercourse with her, having anal intercourse with her, performing oral sex on

      her, and requiring her to perform oral sex on him. Id. On one or more

      occasions, Mother was aware of Phillips’s conduct; B.L. told police about one




      1
       The presentence investigation report indicates that Phillips has no children. However, at the sentencing
      hearing, Phillips’s counsel clarified that Phillips and Mother have four children together, explaining that
      Phillips told the presentence investigator that he had no children because, by that point, his parental rights
      had been terminated.
      2
       Some portions of the record and the State refer to the victim as B.F. See Appellee’s Br. at 1 and Pet’r’s Ex. A.
      However, Phillips’s Brief and other portions of the record, including the sentencing hearing at which the
      victim testified, refer to her as B.L., and we will refer to her as such in our decision. There is no dispute that
      B.F. and B.L. are the same person.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1504-PC-287 | March 10, 2016                  Page 2 of 14
      occasion when Phillips penetrated her vagina with his penis while Mother was

      in the same bed and kissing Phillips.


[4]   Phillips gave a confession to police regarding activities involving B.L. over the

      course of nine years, July 1999 to December 2008, in three counties. Phillips

      admitted to: touching B.L.’s vagina; having vaginal and anal intercourse with

      her; performing oral sex on B.L.; and receiving oral sex from her. He

      acknowledged to having sexual relations with B.L. “regularly,” meaning at least

      once or twice a week, beginning in 2007. Id. Police also interviewed Mother,

      who initially denied knowledge of anything having occurred between Phillips

      and B.L., but later admitted to being aware of some of the conduct and having

      seen Phillips have sexual intercourse with B.L. Charges were filed against

      Phillips in three counties: Vanderburgh County, Warrick County, and Posey

      County.


[5]   As is relevant here, in April 2010, the State charged Phillips in the Vanderburgh

      Superior Court with having committed five offenses: Count I, Class A felony

      child molesting by sexual deviate conduct by digitally penetrating the vagina of

      B.L., a child under fourteen years; Count II, Class A felony child molesting by

      sexual deviate conduct by anal sex with B.L.; Count III, Class A felony child

      molesting by sexual deviate conduct by oral sex with B.L.; Count IV, Class B

      felony sexual misconduct with a minor by sexual intercourse with B.L.; and

      Count V, Class B felony sexual misconduct with a minor by sexual intercourse

      with B.L. On May 20, 2010, Attorney David Lamont (“Lamont”) filed an

      appearance to represent Phillips.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1504-PC-287 | March 10, 2016   Page 3 of 14
[6]   In August 2012, Phillips pleaded guilty to Counts III, IV, and V, in exchange

      for the State’s agreement to dismiss Counts I and II, each a Class A felony. The

      plea agreement (“the Agreement”) provided, “Court to determine an

      appropriate sentence, with both sides reserving the right to argue.” Pet’r’s Ex. B.

      The Agreement, at paragraph 17 (“Paragraph 17”) contained the following

      provisions:

              The Defendant agrees that he/she was fully advised of and
              knowingly, intelligently, and voluntarily waived the right to
              challenge the ‘reasonableness’ of the Court’s sentence under
              mitigating circumstances, and waived the right to challenge the
              weighing of the aggravating and mitigating circumstances. It is
              further agreed that the sentence recommended and/or imposed is
              the appropriate sentence to be served pursuant to this agreement
              and that Defendant hereby waives any further request to modify
              this sentence under I.C. § 35-38-1-17.


      Id. Above his signature, Phillips also agreed:


              I further understand that I have the right to challenge the
              “reasonableness” of the Court’s sentence under Appellate Rule
              7(B) and I hereby waive that right and waive the right to
              challenge the Court’s weighing of aggravating and mitigating
              circumstances.


      Id.3




      3
       Our Supreme Court has determined, “[A] defendant may waive the right to appellate review of his sentence
      as part of a written plea agreement. This holding does not affect our very long-standing policy that a
      defendant who can establish in a post-conviction proceeding that his plea was coerced or unintelligent is
      entitled to have his conviction set aside.” Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008).

      Court of Appeals of Indiana | Memorandum Decision 82A01-1504-PC-287 | March 10, 2016         Page 4 of 14
[7]   In October 2012, the trial court held a sentencing hearing. B.L. testified that

      during the period of time specified in the charges, she was abused by Phillips

      “at the very least, three times a week.” Sent. Tr. at 8. B.L. was nineteen years

      old at the time of the sentencing hearing, and she stated that Phillips began

      sexually abusing her when she was seven years old. The trial court found that

      the aggravating factors outweighed the mitigating factors, and it sentenced

      Phillips to the advisory sentence on each of the three counts: Count III, Class

      A felony child molesting, thirty years; County IV, Class B felony sexual

      misconduct with a minor, ten years; and Count V, Class B felony sexual

      misconduct with a minor, ten years. See Ind. Code §§ 35-50-2-4, -5. The trial

      court ordered that the sentences be served consecutive to each other, for an

      aggregate sentence of fifty years. The trial court ordered that the fifty-year

      sentence be served consecutive to a thirty-five year sentence that had been

      imposed days before in Warrick County upon Phillips’s plea of guilty to one

      count of Class A felony child molesting (also involving B.L.).4 After the trial

      court had advised Phillips of certain rights and as the hearing was concluding,

      Lamont stated:

               Judge, I believe that he would like to appeal the decision and he
               has no funds to pay for an attorney to do that appeal, and I
               would also . . . I think this will become an issue, but I’d like for
               the record to reflect that I was ineffective as his counsel on



      4
        Phillips also subsequently pleaded guilty in Posey County to three Class B felony charges of sexual
      misconduct with a minor, involving the same victim, and Phillips received three fifteen-year sentences to run
      concurrent to each other. Pet’r’s Ex. F. The Posey County trial court ordered the fifteen-year executed
      sentence to run consecutive to the sentences imposed in Vanderburgh County and Warrick County. Id.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1504-PC-287 | March 10, 2016             Page 5 of 14
              advising him as to the consequences of certain waivers that are
              contained within his plea agreement.


      Sent. Tr. at 21. The trial court asked Lamont to specify to what waiver he was

      referring, and Lamont explained that he was “ineffective” in advising Phillips

      about Paragraph 17 of the Agreement, concerning his right to challenge the trial

      court’s sentencing decision. Id. at 21-22.


[8]   In November 2012, Phillips filed a motion to correct error asserting that he had

      received ineffective assistance of counsel as to appellate waiver, which motion

      the trial court denied. In November 2013, Phillips filed a petition for post-

      conviction relief, asserting that he was denied effective assistance of trial

      counsel because his counsel had failed to advise him about the appellate waiver

      aspects of his plea and that Phillips “unknowingly lost his right to appeal the

      reasonableness of his sentence.” Appellant’s App. at 29.


[9]   In January 2015, the post-conviction court held a hearing on Phillips’s petition.

      At the hearing, attorney Lamont testified that he had performed deficiently by

      “failing to properly advise Mr. Phillips of the consequences of the waivers . . .

      in Paragraph 17,” concerning his right to appeal the sentence. PCR Tr. at 33.

      On April 21, 2015, the post-conviction court issued its findings and conclusions

      denying Phillips’s petition for post-conviction relief. It determined that Phillips

      did not identify any facts “that establish an objectively reasonable probability

      that competent representation would have changed his decision to enter a guilty

      plea.” Appellant’s App. at 87. The post-conviction court continued,


      Court of Appeals of Indiana | Memorandum Decision 82A01-1504-PC-287 | March 10, 2016   Page 6 of 14
               Nor can the Defendant show that an appeal of his sentence
               would have been successful. Petitioner does not even make an
               attempt to do so. Even if he had[,] such attempt would have
               been futile. A review of some of the most recent appellate
               decisions wherein the issue of the appropriateness of a
               [d]efendant’s sentence for child molesting has been considered
               establishes the sentence handed down in this cause is well within
               the parameters of what is considered appropriate given the nature
               and circumstances of this case.
               ....
               There is no showing that taken as a whole Attorney Lamont’s
               representation of Petitioner was inadequate . . . and Petitioner
               has failed to establish that he suffered any prejudice from any
               erroneous advice he may have received. Therefore, the Petition
               for Post-Conviction Relief is denied.


       Id. at 88. Phillips now appeals.


                                      Discussion and Decision
[10]   Post-conviction proceedings are not “super appeals” through which a convicted

       person can raise issues that he did not raise at trial or on direct appeal.

       Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839

       (2002); Hinesley v. State, 999 N.E.2d 975, 981 (Ind. Ct. App. 2013) (quoting

       Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013)), trans. denied. Instead, post-

       conviction proceedings afford petitioners a limited opportunity to raise issues

       that were unavailable or unknown at trial and on direct appeal. Hinesley, 999

       N.E.2d at 981. Post-conviction proceedings are civil in nature, and petitioners

       bear the burden of proving their grounds for relief by a preponderance of the




       Court of Appeals of Indiana | Memorandum Decision 82A01-1504-PC-287 | March 10, 2016   Page 7 of 14
       evidence. Ind. Post-Conviction Rule 1(5); Garcia v. State, 936 N.E.2d 361, 363

       (Ind. Ct. App. 2010), trans. denied.


[11]   A petitioner appealing from the denial of post-conviction relief stands in the

       position of one appealing from a negative judgment. Id. A petitioner who

       appeals the denial of post-conviction relief faces a rigorous standard of review,

       as the reviewing court may consider only the evidence and the reasonable

       inferences supporting the judgment of the post-conviction court. McCullough v.

       State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012) (citing Shepherd v. State, 924

       N.E.2d 1274, 1280 (Ind. Ct. App. 2010), trans. denied), trans. denied. The

       defendant must establish that the evidence, as a whole, unerringly and

       unmistakably leads to a conclusion opposite that reached by the post-conviction

       court. Hinesley, 999 N.E.3d at 981; Garcia, 936 N.E.2d at 363. “‘In other

       words, the defendant must convince this Court that there is no way within the

       law that the court below could have reached the decision it did.’” Wilkes, 984

       N.E.2d at 1240 (quoting Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert.

       denied, 540 U.S. 830 (2003)) (emphasis in original).


[12]   Phillips claims that the post-conviction court erred by concluding that he

       received effective assistance of counsel. To prevail on a claim of ineffective

       assistance of counsel, a petitioner must demonstrate both that his counsel’s

       performance was deficient and that he was prejudiced thereby. Wilkes, 984

       N.E.2d at 1240 (citing Strickland v. Washington, 466 U.S. 668 (1984)). This

       standard first asks whether, considering all the circumstances, counsel’s actions



       Court of Appeals of Indiana | Memorandum Decision 82A01-1504-PC-287 | March 10, 2016   Page 8 of 14
       were “reasonable[ ] under prevailing professional norms.” Id. As our Supreme

       Court has explained,

               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.


       Timberlake, 753 N.E.2d at 603 (citations and quotations omitted).


[13]   Even if counsel’s performance is deficient, the defendant must also demonstrate

       that counsel’s performance actually prejudiced the defense. Wilkes, 984 N.E.2d

       at 1241. “‘To establish the requisite prejudice, a petitioner must show there is a

       reasonable probability that, but for counsel’s unprofessional errors, the result of

       the proceeding would have been different.’” McCullough, 973 N.E.2d at 74-75.

       Our Supreme Court has stated that a “reasonable probability” is a probability

       sufficient to undermine confidence in the outcome. Smith v. State, 765 N.E.2d

       578, 585 (Ind. 2002); Carrillo v. State, 982 N.E.2d 468, 472 (Ind. Ct. App. 2013).

       The two elements of Strickland are separate and independent inquiries. Failure

       to satisfy either prong will cause the claim to fail, but most ineffective assistance

       of counsel claims can be resolved by a prejudice inquiry alone. McCullough, 973

       N.E.2d at 75; see also Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006) (failure to


       Court of Appeals of Indiana | Memorandum Decision 82A01-1504-PC-287 | March 10, 2016   Page 9 of 14
       satisfy either component will cause ineffective assistance of counsel claim to

       fail).


[14]   In asserting that he received ineffective assistance of counsel, Phillips refers us

       to Lamont’s statement at the conclusion of the sentencing hearing, where

       Lamont told the trial court, “I was ineffective as his counsel on advising him as

       to the consequences of certain waivers that are contained within his plea

       agreement.” Sent. Tr. at 21. At the post-conviction hearing, Phillips presented

       Lamont as a witness. Lamont testified that he was an experienced attorney,

       having practiced for twenty-five years, primarily in the area of criminal defense.

       Phillips’s attorney asked Lamont why he had made “a comment of self-

       criticism” with regard to the appellate waiver contained in Paragraph 17 of the

       Agreement. PCR Tr. at 33. Lamont explained,


                [T]his was a time period for the first time since I’ve been
                practicing law that they started putting this paragraph in plea
                agreements, and I had advised Mr. Phillips that he could not
                appeal the plea of guilty, but he could appeal the sentence.


       Id. at 33-34.5 Because the Agreement provided that Phillips was waiving his

       right to challenge the trial court’s sentencing decision, Lamont believed that it




       5
         Lamont noted, “I checked recently and the new paragraph 17 in plea agreements is much stronger and, in
       fact, the information that I forgot to tell Mr. Phillips is now in bold letters for both the person accused and the
       attorney representing him.” PCR Tr. at 35-36.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1504-PC-287 | March 10, 2016                Page 10 of 14
       was appropriate for him to tell the trial court that his advisement to Phillips was

       “deficient.” Id. at 35.


[15]   Assuming without deciding that Lamont’s representation of Phillips was

       deficient, Phillips has failed to show, or even allege, that he was prejudiced by

       Lamont’s performance. On appeal, Phillips only contends that he “was

       prejudiced because the Defendant unknowingly waived his right to appeal the

       severe sentence imposed by the trial court.” Appellant’s Br. at 11. Beyond that

       statement, however, Phillips does not argue, establish, or explain in what way

       he was prejudiced. To that extent, his claim is waived. Ind. Appellate Rule

       46(A)(8)(a); Jervis v. State, 28 N.E.3d 361, 368 (Ind. Ct. App. 2015) (defendant

       waived argument by failing to present cogent argument on issue), trans. denied.


[16]   Regardless of waiver, we find no error. Here, because Phillips was convicted

       pursuant to a guilty plea, we analyze his claim under Segura v. State, 749 N.E.2d

       496 (Ind. 2001). Smith v. State, 770 N.E.2d 290, 295 (Ind. 2002); Clarke v. State,

       974 N.E.2d 562, 565 (Ind. Ct. App. 2012). Segura categorizes two main types of

       ineffective assistance of counsel cases: failure to advise the defendant on an

       issue that impairs or overlooks a defense, and an incorrect advisement of penal

       consequences. Smith, 770 N.E.2d at 295. Phillips’s claim – that his trial

       counsel was ineffective for failing to advise him about the appellate waiver

       contained in Paragraph 17 of the Agreement, concerning waiver of his right to

       contest the sentence – implicates the second of the two Segura categories.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1504-PC-287 | March 10, 2016   Page 11 of 14
[17]   With respect to a claim that a defendant has received incorrect advice as to

       penal consequences of a plea, the Segura Court stated:


               Whether viewed as ineffective assistance of counsel or an
               involuntary plea, the post-conviction court must resolve the
               factual issue of the materiality of the bad advice in the decision to
               plead, and post-conviction relief may be granted if the plea can be
               shown to have been influenced by counsel’s error. However, if
               the post-conviction court finds that the petitioner would have
               pleaded guilty even if competently advised as to the penal
               consequences, the error in advice is immaterial to the decision to
               plead and there is no prejudice.


       Roberts v. State, 953 N.E.2d 559, 563 (Ind. Ct. App. 2011) (quoting Segura, 749

       N.E.2d at 504-05), trans. denied.


[18]   In accordance with the Segura Court’s directive, the post-conviction court

       considered the materiality of Lamont’s failure to properly advise Phillips and

       whether the error influenced Phillips’s decision to plead guilty. The post-

       conviction court observed,


               Merely alleging that the petitioner would not have pleaded is
               insufficient. Rather, specific facts, in addition to the petitioner’s
               conclusory allegation, must establish an objective reasonable
               probability that competent representation would have caused the
               petitioner not to enter a plea.


       Appellant’s App. at 87 (quoting Segura, 749 N.E.2d at 507). The post-conviction

       court considered that, based on recent appellate decisions, “the sentence

       handed down in this cause is well within the parameters of what is considered

       appropriate given the nature and circumstances of this offense[,]”and thus any
       Court of Appeals of Indiana | Memorandum Decision 82A01-1504-PC-287 | March 10, 2016   Page 12 of 14
       appeal of his sentence on the basis that it was inappropriate would not have

       been successful. Id. at 88. The post-conviction court also noted that the

       Agreement allowed Phillips to avoid facing convictions and sentences for two

       additional Class A felonies, and it concluded that Phillips failed to establish an

       objectively reasonable probability that, but for Lamont’s failure to advise, he

       would not have entered the plea. We agree.


[19]   Phillips did not testify that he would have insisted on going to trial if Lamont

       had told him that he was waiving his right to challenge the appropriateness or

       reasonableness of his sentence. Even if Phillips had made that assertion, he

       would have needed to provide “specific facts” that “establish an objective

       reasonable probability that competent representation would have caused [him]

       not to enter a plea.” Segura, 749 N.E.2d at 507. Phillips presented no such

       specific facts, nor does the record suggest any. Indeed, Phillips had given a

       “complete confession” to authorities regarding his conduct with B.L. that

       resulted in a total of ten charges being filed against him in three counties, five

       alleging Class A felony child molesting and five alleging Class B felony sexual

       misconduct with a minor. Sent. Tr. at 4; Pet’r’s Exs. A, E, F. In addition,

       Mother and B.L. gave statements to police that were not inconsistent with

       Phillips’s admissions. Pursuant to the Agreement, the State offered to dismiss

       two Class A felonies in exchange for Phillips’s agreement to plead guilty to one

       Class A felony and two Class B felonies, for which he received the advisory

       sentence on each. We agree with the State that “in light of the substantial

       benefit from the plea agreement and the evidence against him,” there was “no


       Court of Appeals of Indiana | Memorandum Decision 82A01-1504-PC-287 | March 10, 2016   Page 13 of 14
       strategic reason to take the case to trial and risk the possibility of being

       convicted and sentenced on multiple Class A felonies.” Appellee’s Br. at 5. The

       record before us does not include facts to show an objectively reasonable

       probability that, but for Lamont’s failure to advise him about the waiver of his

       right to contest his sentence on direct appeal, he would not have pleaded guilty.


[20]   Affirmed.


[21]   Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1504-PC-287 | March 10, 2016   Page 14 of 14
