MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                              Jul 25 2019, 8:59 am
court except for the purpose of establishing
                                                                           CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Megan J. Schueler                                         Curtis T. Hill, Jr.
Ferguson Law                                              Attorney General of Indiana
Bloomington, Indiana
                                                          J.T. Whitehead
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey Archer,                                           July 25, 2019
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          18A-PC-2681
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Marc Rothenberg,
Appellee-Respondent                                       Judge
                                                          The Honorable Amy Barbar,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49G02-1604-PC-16169



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019                  Page 1 of 12
[1]   Jeffrey Archer appeals the denial of his petition for post-conviction relief,

      arguing that the post-conviction court erroneously determined that he did not

      receive the ineffective assistance of appellate counsel. Finding no error, we

      affirm.


                                                     Facts
[2]   The underlying facts, as described by this Court in Archer’s direct appeal, are as

      follows:


              Archer is the paternal step-grandfather of L.B., born June 2,
              2003. L.B. lives with her maternal grandparents, Michael and
              Cindy Tollar, who have had full custody of L.B. since December
              5, 2008. The Tollars allowed L.B. to visit with her paternal
              grandmother, Patricia, who is married to Archer, every other
              weekend from Friday night to Sunday after dinner. L.B. did not
              have her own bed at Archer’s house, so she slept on an air
              mattress in the living room or in the bed between Patricia and
              Archer.


              Sometime in early 2011, Cindy noticed L.B.’s demeanor would
              be different after she returned from visits with the Archers. On
              May 2, 2011, L.B. told her school’s student services advisor that
              Archer had touched her multiple times on the bottom, vagina,
              back, and chest. L.B. also reported Archer touched her inside
              her underwear and once put his fingers in her genitalia. The
              advisor contacted the Department of Child Services.


              After detectives and service providers interviewed L.B., the State
              charged Archer with one count of Class A felony child molesting
              and two counts of Class C felony child molesting. On July 16,
              2012, a jury found Archer guilty as charged. The trial court
              entered a conviction of Class A felony child molesting and

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019   Page 2 of 12
              merged the two counts of Class C felony child molesting. The
              trial court sentenced Archer to twenty-five years for Class A
              felony child molesting and two years for Class C felony child
              molesting, to be served concurrently.


      Archer v. State, 996 N.E.2d 341, 345-46 (Ind. Ct. App. 2013). In his direct

      appeal, Archer argued, among other things, that the trial court admitted

      impermissible vouching testimony and that he had received the ineffective

      assistance of trial counsel. This Court affirmed the trial court. Id. at 354.


[3]   On November 17, 2018, Archer filed an amended petition for post-conviction

      relief, arguing that he had received the ineffective assistance of appellate

      counsel for numerous reasons, including that appellate counsel failed to argue

      prosecutorial misconduct and filed a deficient brief. Hearings on Archer’s

      petition took place on March 23 and June 6, 2018. On October 16, 2018, the

      post-conviction court denied Archer’s petition. Archer now appeals.


                                   Discussion and Decision
                                      I. Standard of Review
[4]   The general rules regarding the review of a ruling on a petition for post-

      conviction relief are well established:


              “The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
              “When appealing from the denial of post-conviction relief, the
              petitioner stands in the position of one appealing from a negative
              judgment.” Id. To prevail on appeal from the denial of post-

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019   Page 3 of 12
              conviction relief, a petitioner must show that the evidence as a
              whole leads unerringly and unmistakably to a conclusion
              opposite that reached by the post-conviction court. Weatherford v.
              State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
              conviction court in this case made findings of fact and
              conclusions of law in accordance with Indiana Post-Conviction
              Rule 1(6). Although we do not defer to the post-conviction
              court’s legal conclusions, “[a] post-conviction court’s findings
              and judgment will be reversed only upon a showing of clear
              error—that which leaves us with a definite and firm conviction
              that a mistake has been made.” Ben–Yisrayl v. State, 729 N.E.2d
              102, 106 (Ind. 2000) (quotation omitted).


      Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).


[5]   Archer’s sole argument on appeal is that the post-conviction court erroneously

      determined that he did not receive the ineffective assistance of appellate

      counsel. To establish ineffective assistance of appellate counsel, the petitioner

      must show that (1) appellate counsel was deficient in his or her performance,

      and (2) the deficiency resulted in prejudice. Id. at 269. Failure to satisfy either

      prong will cause the claim to fail. Henley v. State, 881 N.E.2d 639, 644 (Ind.

      2008). To satisfy the second prong, the defendant must show a reasonable

      probability that, but for counsel’s errors, the result of the proceeding would

      have been different. Id.




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019   Page 4 of 12
                         II. Assistance of Appellate Counsel
                               A. Prosecutorial Misconduct
[6]   Archer first alleges that he received the ineffective assistance of appellate

      counsel because appellate counsel failed to raise the issue of prosecutorial

      misconduct. He contends that prosecutorial misconduct occurred through

      improper vouching and unsavory depictions of defense counsel.


[7]   The law regarding prosecutorial misconduct is well established:


              In reviewing a claim of prosecutorial misconduct properly raised
              in the trial court, we determine (1) whether misconduct occurred,
              and if so, (2) “whether the misconduct, under all of the
              circumstances, placed the defendant in a position of grave peril to
              which he or she would not have been subjected” otherwise.
              Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006), quoted in Castillo
              v. State, 974 N.E.2d 458, 468 (Ind. 2012). A prosecutor has the
              duty to present a persuasive final argument and thus placing a
              defendant in grave peril, by itself, is not misconduct. Mahla v.
              State, 496 N.E.2d 568, 572 (Ind. 1986). “Whether a prosecutor’s
              argument constitutes misconduct is measured by reference to
              case law and the Rules of Professional Conduct. The gravity of
              peril is measured by the probable persuasive effect of the
              misconduct on the jury’s decision rather than the degree of
              impropriety of the conduct.” Cooper, 854 N.E.2d at 835
              (emphasis added) (citations omitted). To preserve a claim of
              prosecutorial misconduct, the defendant must—at the time the
              alleged misconduct occurs—request an admonishment to the
              jury, and if further relief is desired, move for a mistrial. Id.; see
              also Maldonado v. State, 265 Ind. 492, 498, 355 N.E.2d 843, 848
              (1976).




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019   Page 5 of 12
              Our standard of review is different where a claim of prosecutorial
              misconduct has been procedurally defaulted for failure to
              properly raise the claim in the trial court, that is, waived for
              failure to preserve the claim of error. Booher v. State, 773 N.E.2d
              814, 817-18 (Ind. 2002). The defendant must establish not only
              the grounds for prosecutorial misconduct but must also establish
              that the prosecutorial misconduct constituted fundamental error.
              Id. at 818. Fundamental error is an extremely narrow exception
              to the waiver rule where the defendant faces the heavy burden of
              showing that the alleged errors are so prejudicial to the
              defendant’s rights as to “make a fair trial impossible.” Benson v.
              State, 762 N.E.2d 748, 756 (Ind. 2002), quoted in Castillo, 974
              N.E.2d at 468 and Cooper, 854 N.E.2d at 835. . . .


      Ryan v. State, 9 N.E.3d 663, 667-68 (Ind. 2014) (footnote and emphases

      omitted).


[8]   Archer alleges that the prosecutor improperly vouched for L.B. during opening

      argument when she made the following statements:


          • “And [L.B.] will tell you what happened at night when she was sleeping
            with the defendant.” Appellant’s App. Vol. II p. 137.
          • L.B. told her school counselor “exactly what was happening in that
            bedroom with the defendant the best way that a then eight-year old child
            can communicate that.” Id. at 138.
          • “[T]he evidence in this case is not going to be easy to listen to. . . . [B]ut
            it happens and it happened to this kid. Id.
          • “And I just beg of you that you listen to her and what she has to tell you.
            She will tell you that the defendant is guilty of Counts I, II, and Count
            III.” Id. at 138-39.

[9]   Archer also alleges that the prosecutor improperly vouched for L.B. during

      closing argument when she made certain statements, including the following:


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019   Page 6 of 12
           • L.B. had “[n]o reason whatsoever to make this up.” Appellant’s App.
             Vol. IV p. 182.
           • “And to a kid who has had a grandfather’s hand touch her vagina, when
             a defense attorney says, well, if I were to put my hand right here, could
             you show me? [W]hat does that mean? You mean, you want me to take
             your hand and touch my vagina? No. . . . It’s creepy by my [sic] one’s
             standards. . . . But why would you do such a thing like that? Well, I’ll
             tell you why because everything that she [says] in that deposition can be
             bought [sic] out when she comes in here to testify. Classic trick. The
             same way as when your [sic] asking a child questions as defense attorney,
             you stand over hereby [sic] your client so she’s got to look at him. . . .
             It’s a trick. Classic. And so how do people get away with stuff like this?
             We read it in the news. How are those guys doing this to kids? Finally,
             not getting caught because of this. This is [w]hat happens. This is not
             the only court in this building. Other cases are going on, same thing.
             This is [w]hat happens. That’s how they get away with it.” Id. at 222-24.
           • “And I just cannot fathom that any of you would think it was reasonable
             that that was some kind of performance from her. It wasn’t.” Id. at 228.

[10]   Regarding the prosecutor’s statements made during opening argument, Archer

       fails to present any argument as to how these statements constituted misconduct

       or placed him in grave peril. But regarding the prosecutor’s statements made

       during closing argument, we agree that the prosecutor’s suggestion that defense

       counsel was playing a “classic trick” to help Archer be acquitted was

       inappropriate. As our Supreme Court has stated regarding a different closing

       argument by the same prosecutor,


               Without question, the characterization of defense counsel’s line
               of argumentation as “how guilty people walk” and a “trick,” is
               inconsistent with the requirement that lawyers “demonstrate
               respect for the legal system and for those who serve it, including
               . . . other lawyers,” see Preamble [5], Ind. Professional Conduct
               Rules.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019   Page 7 of 12
       Ryan, 9 N.E.3d at 670. And as to the prosecutor’s statement about defense

       counsel’s physical position during questioning and the prosecutor’s statement

       about how people “get away with stuff like this,” appellant’s app. vol. iv p. 223,

       we agree that those comments were also improper. This Court has addressed

       similar comments in yet another closing argument by this same prosecutor,

       finding that such comments were outside the realm of professionalism and were

       not appropriate comments on the law and the facts of the case. See Brummett v.

       State, 10 N.E.3d 78, 85 (Ind. Ct. App. 2014) (discussing prosecutor’s comments

       that implied the defense counsel’s arguments helped guilty men go free and

       statement that defense counsel employed tricks), aff'd on reh’g, 24 N.E.3d 965

       (Ind. Ct. App. 2014).


[11]   Archer argues, essentially, that as in Ryan and Brummett, the same prosecutor in

       this case committed reversible misconduct with the comments she made during

       his jury trial and that, consequently, his appellate counsel had a clearly stronger

       argument to raise—prosecutorial misconduct—than any of the litany of

       arguments he actually raised.1 Cf. Bieghler v. State, 690 N.E.2d 188, 193-94 (Ind.

       1997) (stating that a claim of ineffective assistance of appellate counsel may be




       1
        In his direct appeal, Archer alleged that the trial court allowed three witnesses to vouch for L.B.’s credibility
       as a witness. This Court found no error on this basis. Archer rehashes this argument in his appeal from the
       post-conviction court’s judgment, but because this Court has already addressed it, we decline to do so again.
       See Lowery v. State, 640 N.E.2d 1031, 1037 (Ind. 1994) (noting that issues already adjudicated in the appellate
       process are unavailable to a petitioner for post-conviction relief).

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019                        Page 8 of 12
       shown when “significant and obvious” issues that were “clearly stronger than

       those presented” existed in the record).2


[12]   Assuming solely for argument’s sake that appellate counsel failed to raise a

       clearly stronger issue of prosecutorial misconduct, Archer nonetheless is unable

       to demonstrate that, but for his counsel’s deficient performance, the result of his

       direct appeal would have been different. The prosecutor’s comments that

       Archer asserts form the basis of her alleged misconduct are, as the post-

       conviction court correctly found, “nearly identical” to the same comments

       disapproved of by our Supreme Court in Ryan. Appellant’s App. Vol. 2 at 20-

       21; compare supra at 6-7 with Ryan, 9 N.E.3d at 668-72. However, while our

       Supreme Court disapproved of the prosecutor’s similar comments in Ryan, it

       held that those comments were insufficient to demonstrate fundamental error.

       9 N.E.3d at 672-73. Accordingly, even if appellate counsel had raised the issue

       of fundamental error with respect to the prosecutor’s comments here, this Court

       would have affirmed.




       2
        To the extent that Archer argues that Brummett and Ryan were not available for appellate counsel to rely on
       because they had not yet been decided, we note that neither case created a new legal standard. Indeed, in
       Brummett, our Supreme Court explicitly clarified that “Ryan did not alter the doctrine of fundamental error”
       on issues of prosecutorial misconduct. Brummett, 24 N.E.3d at 966. In other words, the law of prosecutorial
       misconduct was well established at the time of Archer’s direct appeal and was unchanged by Brummett and
       Ryan.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019                   Page 9 of 12
[13]   In sum, the post-conviction court did not err by finding that Archer did not

       receive the ineffective assistance of appellate counsel based on the failure to

       raise this issue in the direct appeal.


                                          B. Appellate Brief
[14]   Archer next alleges that he received the ineffective assistance of appellate

       counsel because appellate counsel filed a deficient brief on his behalf. Archer

       contends that appellate counsel did not present cogent argument regarding

       improper vouching and ineffective assistance of trial counsel issues and that

       appellate counsel did not have voir dire transcribed.


[15]   Counsel is not required to be “perfect representation, only a ‘reasonably

       competent attorney.’” Woodson v. State, 961 N.E.2d 1035, 1042 (Ind. Ct. App.

       2012) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “Isolated

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

       necessarily render representation ineffective.” Id. We give great deference to

       appellate counsel’s decisions regarding which arguments to raise on appeal,

       which is “one of the most important strategic decisions of appellate counsel.”

       Hampton v. State, 961 N.E.2d 480, 491 (Ind. 2012) (citing Bieghler v. State, 690

       N.E.2d 188, 193 (Ind. 1997)). Appellate counsel’s performance, as to the

       selection and presentation of issues, will thus be presumed adequate unless

       found unquestionably unreasonable considering the information available in the

       trial record or otherwise known to the appellate counsel. Id. at 491-92. To

       succeed on this claim, the petitioner must show that the unraised issue was


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019   Page 10 of 12
       significant, obvious, and clearly stronger than the issues that were raised.

       Bieghler, 690 N.E.2d at 194.


[16]   Regarding the vouching and ineffective assistance of trial counsel issues, Archer

       contends that appellate counsel did not present cogent argument in his appellate

       brief, yet on direct appeal, this Court discussed both issues at length. Thus, we

       find his argument on this basis unavailing.


[17]   Archer also contends that appellate counsel provided ineffective assistance

       because counsel did not obtain a copy of the transcript of voir dire. During the

       post-conviction hearing, appellate counsel testified that it was not his policy to

       review voir dire because what transpires then is not evidence. A record on

       appeal includes “all proceedings before the trial court,” Ind. Appellate Rule

       2(L), and as we have stated, appellate counsel has a duty to thoroughly review

       the entire record of a defendant’s proceedings. Wilson v. State, 94 N.E.3d 312,

       321 (Ind. Ct. App. 2018).


[18]   But Archer cannot show prejudice from appellate counsel’s error. Although

       Archer contends that he was prejudiced by a prospective juror who, after

       acknowledging that she could not be fair and impartial, was selected to serve on

       the jury, the record shows that this prospective juror was dismissed from jury

       service. After defense counsel challenged this prospective juror for cause, the

       trial court stated, “I think she’s pretty bad” and “I’m going to grant” the

       challenge. Appellant’s App. Vol. II p. 122-23. This prospective juror was then




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019   Page 11 of 12
       excused. Accordingly, Archer suffered no prejudice from appellate counsel’s

       failure to review this section of the transcript. 3 4


[19]   In sum, the post-conviction court did not err by finding that Archer did not

       receive the ineffective assistance of appellate counsel.


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


       Najam, J., and Robb, J., concur.




       3
        Archer mentions several other issues that appellate counsel could have raised in the direct appeal.
       Appellate counsel raised six issues in the direct appeal. Archer does not, in this instant appeal, show that the
       unraised issues were significant, obvious, and clearly stronger than the issues that appellate counsel did raise.
       4
        In his direct appeal, Archer alleged that he had received the ineffective assistance of trial counsel. This
       Court found that he had not. Archer again raises this argument in this instant appeal, but because this Court
       has already addressed it, we decline to do so again. See Lowery, 640 N.E.2d at 1037.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019                      Page 12 of 12
