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                          May 31 2013, 9:28 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

MARK SMALL                                         GREGORY F. ZOELLER
Indianapolis, Indiana                              Attorney General of Indiana

                                                   JODI KATHRYN STEIN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

DAVID MARK FRENTZ,                                 )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
              vs.                                  )      No. 59A01-1207-PC-334
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )


                        APPEAL FROM THE ORANGE CIRCUIT COURT
                         The Honorable Frank Newkirk, Jr., Special Judge
                                 Cause No. 59C01-1008-PC-91



                                         May 31, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                           STATEMENT OF THE CASE

      David Mark Frentz appeals the post-conviction court’s denial of his petition for

post-conviction relief. Frentz raises three issues for our review, which we restate as

follows:

      1.     Whether his trial counsel rendered ineffective assistance when he
             told the jury during his opening statement that he agreed with 99%
             of the State’s case;

      2.     Whether his trial counsel rendered ineffective assistance when he did
             not pursue an insanity defense; and

      3.     Whether Frentz preserved for appellate review a potential claim in
             the selection of the jury, which he did not raise in his petition for
             post-conviction relief.

      We affirm.

                     FACTS AND PROCEDURAL HISTORY

      The facts underlying Frentz’s convictions were stated by this court on direct

appeal:

      The facts most favorable to the jury’s verdict indicate that twenty-three-
      year-old Zackary Reynolds lived with the fifty-three-year-old Frentz and
      worked on his Orange County farm. On Saturday, January 22, 2005,
      Frentz’s doctor told him that he would die if he did not stop drinking.
      Frentz had been drinking for thirty years and quit “cold turkey” that day.
      Frentz’s doctor gave him pills to alleviate “the DT’s[.]” On Sunday,
      January 23, Frentz ran some errands, came home to work on a pickup truck
      with Reynolds, and then ran additional errands. On his way home, Frentz
      stopped at a fast-food drive-through in Salem between 10:00 and 11:00
      p.m. While there, he talked on his cell phone with his friend Carl Brock.
      Frentz told Brock that he had been “feeling bad” and had been
      hallucinating, with “either light poles or salt shakers dancing or something
      like that, uh, dogs running across the road laughing at him and stuff like
      that.” Brock became concerned and asked Frentz to call him when he got
      home.



                                           2
       Brock went online for an hour or two, thereby tying up his telephone
line. Brock then called Frentz’s cell phone. Frentz asked both Brock and
his wife if they had heard from his ex-girlfriend, Dusty Austin, with whom
he had broken up several weeks earlier. Frentz stated that he had been
“fucked over” by his long-time friend Chuck Woolsey, who he thought was
having a sexual relationship with Austin. During the course of the
conversation, Frentz went from “feeling ill and hallucinating to someone
who was very sober and [not] really talkative at all.” In an attempt to
smooth things over, Brock made some humorous remarks. Frentz hung up.
Brock believed that Frentz had “snapped” and tried calling him several
times, to no avail.

       At approximately 3:00 a.m. on Monday, January 24, Frentz’s
neighbor Debra Sayles drove by his house on her way home from work and
noticed that all the lights were on, which was not unusual. At
approximately 3:30 a.m., Brock finally reached Frentz by telephone. Frentz
was “freaked out” and told Brock to call the police. Frentz told Brock that
“he put PCP in that shit and people [are] up here to fuck with us.” Frentz
“said something about [who’s] out there, get back in here, who broke that
light.” Frentz “kept hollering” at Reynolds, but Brock never heard
Reynolds reply. Brock offered to pick up Frentz, and Frentz agreed. When
Brock asked to talk to Reynolds, Frentz hung up. As Brock got dressed, his
wife called Frentz and asked to talk to Reynolds. Frentz hung up again.
Brock then called a phone number that Austin had given him after breaking
up with Frentz. Woolsey answered the phone. Brock told Woolsey to tell
Austin that Frentz had “snapped.” Brock’s wife refused to let Brock go to
Frentz’s home.

       Early that morning, two of Frentz’s neighbors saw and heard what
appeared to be Frentz’s pickup truck driving down the road at a high rate of
speed. At approximately 5:30 a.m., Frentz called 911 on his cell phone and
stated that several people were trying to break into his house. The phone
line went dead several times during the course of the call. Frentz reported
that the intruders had broken into the house, that one of the intruders was
shooting, that his friend had been shot in the chest, that his friend was still
breathing, that the intruders were still in the home, that the intruders were
“trying to get in the windows” and doors, and that he had “locked the door
back.” The call ended when the operator confirmed with Frentz that
assistance had arrived.

       Officers from Washington and Orange Counties responded to
Frentz’s 911 call. None of them observed any vehicle or foot traffic or
anything unusual on their way to Frentz’s home. They saw Frentz standing
in the kitchen. Appearing disoriented and agitated, Frentz opened the door
                                      3
and motioned for them to come in. One of the officers saw an SKS assault
rifle lying on a kitchen chair and “secured it” for their safety. The SKS was
a semiautomatic firearm, which fires a bullet each time the trigger is pulled.
Another officer handcuffed Frentz, who was dressed in underwear and a t-
shirt and was “sweating really bad.” Frentz told the officers that Mexicans
on motorcycles had broken into his house and that there was someone in his
bed. The officers found no one in Frentz’s bed and no signs of a struggle or
forced entry.

        From the kitchen, a third officer saw Reynolds lying face-up in a
hallway in a pool of blood, on top of a loaded .22–caliber rifle. Reynolds’s
body was cool to the touch and showed no signs of life. He had been struck
by three bullets: one that passed through his right wrist and deeply grazed
his right abdomen; a second that entered the middle of his chest, lacerated
his liver and adrenal gland, and lodged near his spine; and a third that
entered the upper right side of his chest, fractured the ribs and collarbone,
extensively damaged his right lung, and exited above the scapula. The two
chest wounds exhibited stippling from gunshot residue, which indicated
that the firearm’s muzzle had been within two feet of Reynolds when the
bullets were fired. All the wounds were lethal, and Reynolds bled to death
within minutes. A toxicology exam revealed traces of methamphetamine
and amphetamine in Reynolds’s blood. A ballistics test established that the
bullet that lodged near Reynolds’s spine was fired from the SKS. Genetics
testing revealed traces of Reynolds’s DNA on Frentz’s t-shirt. In the
hallway, police recovered four shell casings of the same caliber as the SKS.
Three bullets had penetrated the closet door in front of which Reynolds had
been standing when he was shot. Police noticed that Reynolds’s bedroom
window had been shot through several times from the inside and found
similar shell casings nearby.

       Orange County Sheriff’s Detective Michael Dixon arrived and asked
another officer to Mirandize Frentz and remove his handcuffs. Detective
Dixon then questioned Frentz about the incident. Frentz stated that he had
been asleep in his bedroom and heard a scuffle at the other end of the
house. He grabbed the .22, walked down the hallway, and saw two
Hispanic men exiting the back door. Frentz saw Reynolds fighting with a
third Hispanic man over the SKS. Frentz set the .22 down, grabbed the
intruder, and heard two gunshots. The intruder left the home and drove
away with his companions in a sport utility vehicle. Frentz stated that the
three men had broken into his home through a window.

       Thereafter, Indiana State Trooper Bill Flick transported Frentz to
Detective Dixon’s office for an interview. Frentz read and signed an
advisement of rights form. Frentz told Trooper Flick that when he went to
                                      4
bed at 11:00 on Saturday evening, Reynolds was playing cards and drinking
beer with two unknown young white men at the kitchen table. Between
4:30 and 5:30 a.m., Frentz heard Reynolds yell and saw three Hispanic
men, two of whom went out the back door. Frentz grabbed the .22, called
911, and went into the hallway, where Reynolds was scuffling with the
third intruder over the SKS. Frentz placed the .22 on the floor, grabbed the
intruder, and heard a gun go off. The intruder went out the back door.
Frentz heard a motorcycle and saw a black sport utility vehicle drive off.
Frentz heard someone outside the house and fired shots through the
window and out the back door.

       At Frentz’s home, police found marijuana in plain view and obtained
a search warrant. Police found a total of 39.49 grams of marijuana in a
mug near the kitchen, underneath Frentz’s mattress, in a sewing basket, and
in a jar wrapped with black electrician’s tape. Police also found cocaine
residue in a one-hitter above the refrigerator, as well as methamphetamine
residue on a mirror next to a rolled-up dollar bill in a kitchen cabinet. A
toxicology exam revealed traces of ephedrine and cocaine metabolites in
Frentz’s blood. At trial, the court excluded Frentz’s toxicology report
pursuant to a motion in limine.

       After further investigating the scene and questioning Frentz’s
mother, Trooper Flick and Detective Dixon interviewed Frentz a second
time that same day. Frentz told the officers that he had stopped drinking
“cold turkey” on Saturday after thirty years and had been given medication.
He denied telling his mother that he was hallucinating and claimed that he
had told her he felt “fuzzy” from the medication. Frentz stated that
Reynolds had been “just outside of his door” when he was shot and that he
remembered hearing three gunshots. He stated that he put his hands “over
[Reynolds’s] bleeding” at the urging of the 911 operator and that he loved
Reynolds “like my boy.” Frentz spent the night in the Orange County jail.

        The following morning, Frentz asked to speak with Trooper Flick.
Frentz told Trooper Flick that he had taken his medication the night before
and experienced hallucinations. He stated that “it was like [the medication]
was givin’ [him] the DT’s” instead of taking them away. He further stated
that Reynolds had purchased drugs that weekend from someone who was
interested in Austin, his ex-girlfriend. Frentz wondered if that person might
have altered the drugs and persuaded Reynolds to “slip [him] some[.]”
Frentz denied that his medication and any altered drugs he might have
ingested might have caused him “to just randomly start shootin’ that
rifle[.]”



                                     5
       While in jail, Frentz discussed Reynolds’s shooting with fellow
prisoners and serial felons Troy Brackett and David Turner. Frentz told
Brackett that A.J. Guthrie and Eric Lloyd had sold methamphetamine to
Reynolds and then attempted to steal it back. During the ensuing struggle,
Reynolds was accidentally shot. Later, Frentz told Brackett that he and
Reynolds had argued about the drug purchase from Guthrie and Lloyd, who
had bought the drugs from Woolsey, who was living with Austin. Frentz
said that he heard a noise that night that “played to his role” and shot
Reynolds with an SKS. Frentz told Brackett that Reynolds “shouldn’t have
been messing with [his] old lady.”

       Frentz told Turner that he had come home on Sunday evening to find
Reynolds with Guthrie and Lloyd.                Reynolds offered Frentz
methamphetamine, which he declined. Frentz went to bed, then got back
up and told Reynolds that it was not a good idea to have “all that meth” in
front of Guthrie and Lloyd. Guthrie and Lloyd later broke in to steal the
methamphetamine, resulting in a struggle that claimed Reynolds’s life.
Frentz asked Turner what he thought of the story. Turner replied that if he
were on a jury, he would convict Frentz. Later, Frentz told Turner that
Woolsey and Austin had hired Mexicans to break into his home and kill
him for his life insurance policy and that they had shot the wrong person.
Frentz then told Turner that he had sent Reynolds to persuade Austin to
return to Frentz’s home. Reynolds was gone for a long time, and Frentz
began to suspect that he and Austin were romantically involved. That
night, Frentz looked out his window and saw Austin standing behind a
telephone pole. He thought that she and Reynolds were going to run off
together, which “ticked him off[.]” He grabbed a gun, confronted
Reynolds, and shot him. Frentz realized that “he’d messed up pretty bad”
and shot Reynolds twice more to kill him. Frentz said that he placed the
.22 underneath Reynolds’s body and drove his truck up and down the road
several times to make the neighbors think “that they heard several vehicles
leaving his place at a high rate of speed[.]” Frentz kept changing his story
until he finally got Turner’s approval.

        Frentz offered to pay Brackett and Turner to drop .45–caliber shells
outside his house and put pry marks outside the windows. He also told
both men that his brother had entered his home and retrieved $700 in cash
from his jacket pocket and an ounce of methamphetamine from his jeans
pocket, which his brother flushed down the toilet. Frentz’s brother and
sister-in-law did in fact find over $600 in cash in Frentz’s jeans pocket
while cleaning his house after the shooting.

      While in jail, Frentz received a letter from Reynolds’s father with
Reynolds’s obituary and a sarcastic request to help pay the funeral
                                     6
expenses. Frentz threw the obituary on the floor and told Brackett that “if
he was going to pay for [Reynolds’s] funeral he would have never killed
him.” Frentz told Turner that Reynolds’s relatives were “[m]oney-hungry
son-of-a-bitches.”

       On January 27, 2005, the State charged Frentz with murder, class C
felony methamphetamine possession, class C felony cocaine possession,
and class D felony marijuana possession. On March 16, 2005, the State
amended the information to include class C felony anhydrous ammonia
possession and class D felony receiving stolen property. On May 27, 2005,
Frentz filed a motion to sever the illicit substance counts from the murder
count, which the trial court denied. On January 3, 2006, Frentz renewed his
motion to sever, which the trial court granted in part by severing the
anhydrous ammonia possession and receiving stolen property counts from
the remaining counts.

       Frentz’s jury trial lasted from March 27, 2006, to April 10, 2006,
during which Frentz unsuccessfully renewed his motion to sever. In his
opening statement, Frentz’s counsel said, “[W]e agree with ninety-nine
percent of what the State says, probably 99.9 percent of what the State
says.” Frentz’s counsel acknowledged that there were no signs of a
struggle on the night of the shooting and that the evidence did not support
Frentz’s version of events. Detective Dixon agreed with Frentz’s counsel’s
statement that the physical evidence indicated that Reynolds “was shot
outside of his door standing up, fairly quickly, and that [Frentz] seemed to
be the only one in the residence[.]”

        After the close of evidence, the State requested an instruction on the
lesser-included offense of voluntary manslaughter. Frentz’s counsel
objected, arguing that there was no evidence of sudden heat to warrant such
an instruction. Counsel then elicited sworn testimony from Frentz that he
did not want either side to request instructions on a lesser-included offense.
The trial court found no serious evidentiary dispute as to the existence of
sudden heat and denied the State’s request for a voluntary manslaughter
instruction. The jury found Frentz guilty as charged.

        On September 5, 2006, the trial court sentenced Frentz to fifty-five
years for murder. The court also sentenced Frentz to four years for
methamphetamine possession, four years for cocaine possession, and two
years for marijuana possession, to be served concurrent [with] each other
and consecutive to the murder sentence, for an aggregate term of fifty-nine
years. . . .



                                      7
Frentz v. State, 875 N.E.2d 453, 457-61 (Ind. Ct. App. 2007) (citations and footnotes

omitted; alterations original), trans. denied (“Frentz I”).

       On direct appeal, Frentz raised four issues: whether the trial court erred when it

joined and then denied Frentz’s motions to sever the drug possession counts from the

murder count; whether the trial court abused its discretion when it denied Frentz’s

motions for a mistrial based on various allegations of prosecutorial misconduct; whether

the trial court abused its discretion when it sentenced Frentz; and whether Frentz’s

sentence was inappropriate under Indiana Appellate Rule 7(B). In considering those

issues, we stated: “The evidence that Frentz possessed methamphetamine, cocaine, and

marijuana was overwhelming. So, too, was the evidence that Frentz was the person who

shot and killed Reynolds. The only issue in dispute was whether Frentz knowingly or

intentionally killed Reynolds.”      Id. at 464.    We affirmed Frentz’s convictions and

sentence.

       On December 11, 2008, Frentz filed his petition for post-conviction relief, which

he later amended. The post-conviction court held an evidentiary hearing on Frentz’s

petition on March 15, 2012, after which the court issued findings of fact and conclusions

of law denying Frentz’s petition. This appeal ensued.

                             DISCUSSION AND DECISION

                                    Standard of Review

       Frentz appeals the post-conviction court’s denial of his petition for relief. Our

standard of review is well established:

       [The petitioner] bore the burden of establishing the grounds for post-
       conviction relief by a preponderance of the evidence. See Ind. Post-
                                               8
      Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d 591, 597 (Ind.
      2001). Post-conviction procedures do not afford a petitioner with a super-
      appeal, and not all issues are available. Timberlake, 753 N.E.2d at 597.
      Rather, subsequent collateral challenges to convictions 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. If it
      was raised on appeal, but decided adversely, it is res judicata. Id.

             In reviewing the judgment of a post-conviction court, appellate
      courts consider only the evidence and reasonable inferences supporting the
      post-conviction court’s 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 the witnesses. Id. at 468-69. Because he is now appealing
      from a negative judgment, to the extent his appeal turns on factual issues
      [the petitioner] must convince this court that the evidence as a whole leads
      unerringly and unmistakably to a decision opposite that reached by the
      post-conviction court. See Timberlake, 753 N.E.2d at 597. We will disturb
      the decision only if the evidence is without conflict and leads only to a
      conclusion contrary to the result of the post-conviction court. Id.

Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied.

      Frentz’s arguments on appeal are premised on his theory that he was denied the

effective assistance of trial counsel. A claim of ineffective assistance of counsel must

satisfy two components. Strickland v. Washington, 466 U.S. 668 (1984). First, the

defendant must show deficient performance: representation that fell below an objective

standard of reasonableness, committing errors so serious that the defendant did not have

the “counsel” guaranteed by the Sixth Amendment. Id. at 687-88. Second, the defendant

must show prejudice: a reasonable probability (i.e., a probability sufficient to undermine

confidence in the outcome) that, but for counsel’s errors, the result of the proceeding

would have been different. Id. at 694. We afford counsel considerable discretion in

choosing strategy and tactics, and “‘[i]solated mistakes, poor strategy, inexperience, and

instances of bad judgment do not necessarily render representation ineffective.’” State v.


                                            9
Hollin, 970 N.E.2d 147, 151 (Ind. 2012) (quoting Timberlake, 753 N.E.2d at 603)

(alteration original to Hollin).

       Here, Frentz alleges he was denied the effective assistance of counsel for the

following three reasons: (1) his trial counsel conceded Frentz’s guilt when he told the

jurors during his opening statement that he “agree[d] with ninety-nine percent of what the

State says, probably 99.9 percent of what the State says,” see Frentz I, 875 N.E.2d at

461; (2) his trial counsel failed to pursue an insanity defense; and (3) his counsel failed to

object when prospective jurors were dismissed from January 2006 and summoned then

again for trial in March 2006. We address each of Frentz’s arguments in turn.

                              Issue One: Opening Statement

       Frentz first asserts that his trial counsel’s opening statement, in effect, told the jury

that there was no reasonable doubt that the State’s case was correct. In support of his

position, Frentz relies on various authorities that have disapproved of quantifying the

reasonable doubt standard for jurors. See, e.g., State v. Boyd, 331 N.W.2d 480, 482

(Minn. 1983) (discussing, among other authorities, Laurence H. Tribe, Trial by

Mathematics, 84 Harv. L. Rev. 1329 (1971)). But his trial counsel’s opening statement

was not a commentary on the reasonable doubt standard.

       Rather, in a case in which the State had overwhelming physical evidence against

his client, see Frentz I, 875 N.E.2d at 474, Frentz’s trial counsel sought to bolster his

client’s credibility with the jury by frankly acknowledging the weight of the State’s

physical evidence. As we have recognized:

       concession by an attorney to certain elements of a charge or even to an
       entire charged offense may at times constitute a reasonable trial strategy.
                                              10
          For instance, concession to a particular fact or charge that is supported by
          overwhelming evidence may help enhance a defendant’s credibility on the
          remaining issues at trial.

Christian v. State, 712 N.E.2d 4, 6 (Ind. Ct. App. 1999). That strategy is all that is

reflected by Frentz’s counsel’s opening statement.          Frentz’s attempt to spin those

comments into a concession that he was guilty beyond a reasonable doubt is not

persuasive. As the post-conviction court found: “Counsel . . . did not by his opening

statement admit [an] element of the offense, concede reasonable doubt or relieve the State

of the necessity of establishing its case.” Appellant’s App. at 49.

          Neither is it relevant that Frentz’s trial counsel later testified before the post-

conviction court that he could not recall the strategy for the opening statement. We

review the post-conviction court’s judgment in light of the evidence most favorable to

that judgment. Lindsey, 888 N.E.2d at 322. Frentz’s argument is merely a request for

this court to reweigh the evidence before the post-conviction court, which we will not do.

See id.

                                Issue Two: Insanity Defense

          Frentz next asserts that his counsel was ineffective because he did not raise an

insanity defense during trial. “The decision to interpose the insanity defense is a matter

which requires trial counsel to exercise his professional skills and judgment.           Trial

counsel’s decision not to raise the insanity defense is a matter of strategy and does not

support a claim of ineffective assistance of counsel.” Osborne v. State, 481 N.E.2d 376,

380 (Ind. 1985).




                                              11
       Notably, Frentz acknowledges that his trial counsel did file a Notice of Defense of

Mental Disease or Defect at the outset of the proceedings and that he investigated the

potential for this defense.    As the post-conviction court found:          “Counsel . . . did

investigate the defense of not guilty by reason of insanity but after litigating the issue

through pre-trial pleadings and hearings made a strategic decision that it was not in

[Frentz’s] best interest[s] to pursue that defense.” Appellant’s App. at 50. In particular,

Frentz’s trial counsel had Frentz evaluated by Dr. Phillip Coons. Frentz’s trial counsel

made the strategic decision not to pursue the defense shortly thereafter.

       At the evidentiary hearing before the post-conviction court, Frentz presented the

testimony of Dr. Ned Masbaum in support of his position that he was insane when he

murdered Reynolds. According to the post-conviction court:

       66.    Dr. Masbaum testified that he interviewed [Frentz] for
              approximately two hours nearly five years after the date of the
              charging information[].

       67.    Dr. Masbaum also testified that [Frentz] was the only person he
              interviewed and that he had not reviewed the reports of the lead
              detectives, Mike Dixon and Bill Flick.

       68.    Dr. Masbaum concluded that [Frentz] “was of unsound mind at the
              time of the Offenses” based upon a diagnosis of delirium tremens.

                                           ***

       89.    Dr. M[a]sbaum testified that he had reviewed various documents
              related to the case, including the probable cause affidavit and Mr.
              Frentz’s medical records. He also admitted that he did not meet with
              or examine Mr. Frentz near the time of the killing or arrest, he did
              not review all relevant documents and he did not interview all
              knowledgeable witnesses or review their testimony.




                                            12
       90.       Dr. M[a]sbaum testified that, to a reasonable degree of medical
                 certainty, Mr. Frentz had been insane on the night of the shooting of
                 Zack Reynolds.

       91.       Dr. M[a]sbaum’s conclusion was based upon selective and
                 incomplete information.

       92.       [Frentz] has failed to show a “reasonable probability” . . . that the
                 result of the proceeding would have been different . . . .

Id. at 55, 58.

       On appeal from the post-conviction court’s judgment, Frentz asserts that Dr.

Masbaum’s testimony demonstrates that his trial counsel should have continued to pursue

an insanity defense through trial. Frentz further notes that his trial counsel testified to the

post-conviction court that he could not recall the strategic reason for why the Notice of

Defense was withdrawn.

       Frentz’s arguments on this issue are merely requests for this court to reweigh the

evidence, which, again, we will not do.            The post-conviction court discredited Dr.

Masbaum’s testimony because his conclusions were “based upon selective and

incomplete information,” and the court was not persuaded by Frentz’s counsel’s failure to

recall the strategy for not pursuing an insanity defense. Id. at 58. Moreover, Frentz

presented no evidence to the post-conviction court to demonstrate that the information

available to his trial counsel at the time of trial showed that Frentz met the statutory

criteria for this defense. Thus, Frentz cannot demonstrate that the post-conviction court

erred when it denied his petition on this issue.




                                              13
                                Issue Three: Jury Selection

       Finally, Frentz asserts that his trial counsel rendered ineffective assistance when

he did not object when prospective jurors who had been summoned and discharged in

January 2006 were again called in March and served during Frentz’s trial. The State

asserts that Frentz did not raise this issue in his petition for post-conviction relief, and the

post-conviction court did not abuse its discretion when it denied Frentz’s attempt to

amend his petition during the evidentiary hearing. We agree with the State.

       Frentz did not raise this issue in his petition for post-conviction relief. “Issues not

raised in a petition for post-conviction relief may not be raised for the first time on

appeal.”    Emerson v. State, 812 N.E.2d 1090, 1098-99 (Ind. Ct. App. 2004).

Accordingly, this issue has not been preserved for appellate review.

       On appeal, Frentz attempts to avoid his waiver by first asserting that he did raise

this issue in his petition under the guise that his trial counsel was ineffective for not

seeking a change in venue on the grounds of publicity. We cannot agree that those are

the same legal questions or that raising a venue issue put the State on proper notice that

Frentz intended to raise a jury-selection issue. And, in this appeal, Frentz does not

challenge the venue of his trial. Thus, this argument is without merit.

       Frentz also argues that the “identity of the jurors as having been on the January

panel was discovered only on the day of the evidentiary hearing.” Reply Br. at 9. As

such, he continues, he moved to amend his petition to conform with the evidence

pursuant to Indiana Trial Rule 15(A), which requires a trial court to give leave to amend a

pleading “when justice so requires.”


                                              14
          Indiana Trial Rule 15(A) does not apply here. “While our Trial Rules generally

only govern procedure and practice in civil cases, we have considered their applicability

in post-conviction proceedings on a case-by-case basis where the Indiana Rules of

Procedure for Post-Conviction Remedies are silent.” Corcoran v. State, 845 N.E.2d

1019, 1021 (Ind. 2006). But our Post-Conviction Rules on the amendment of a petition

for relief are not silent. Rather, Post-Conviction Rule 1(4)(c) states that, within sixty

days of the evidentiary hearing, a motion to amend may be granted only “by leave of the

court.”

          That rule explicitly leaves a decision on whether to amend a petition within sixty

days of the evidentiary hearing in the post-conviction court’s discretion. As our supreme

court has explained:

          Prior to [1995], the Rule stated that “the petitioner shall be given leave to
          amend the petition as a matter of right.” See Ind. Post-Conviction Rule
          1(4)(c) (1994) (emphasis added). The Rule now provides that the
          “petitioner shall be given leave to amend the petition as a matter of right no
          later than sixty . . . days prior to the date the petition has been set for trial.
          Any later amendment of the petition shall be by leave of the court.”
          (emphasis added). This change in Rule 1(4)(c) demonstrates our intent to
          grant the post-conviction court discretion when ruling on amendments
          within the 60-day period.

Tapia v. State, 753 N.E.2d 581, 586 n.7 (Ind. 2001). As such, we review the post-

conviction court’s denial of a motion to amend within sixty days of the evidentiary

hearing for an abuse of discretion. Id. at 586.

          The post-conviction court did not abuse its discretion when it denied Frentz’s

motion to amend his petition during the evidentiary hearing. Though Frentz asserts to

this court that he did not discover the potential jury-selection issue until the evidentiary


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hearing, he informed the post-conviction court that he was aware of this potential issue

when he deposed his trial counsel in October of 2009. Specifically, Frentz’s post-

conviction counsel acknowledged that he “address[ed] the release of the jurors in January

2006” during the deposition of Frentz’s trial counsel, more than a year before the post-

conviction court’s evidentiary hearing. PC Transcript at 96. Nonetheless, Frentz waited

until the day of the evidentiary hearing to attempt to add this potential issue to his petition

for relief. On these facts, we cannot say the post-conviction court abused its discretion

when it denied Frentz’s attempt to amend his petition at the last second. Hence, Frentz

did not properly preserve this potential issue by raising it in his petition for post-

conviction relief.

                                         Conclusion

       In sum, Frentz cannot demonstrate that the post-conviction court erred when it

denied his petition for relief.

       Affirmed.

BAILEY, J., and BARNES, J., concur.




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