MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be
                                                                  Dec 21 2016, 5:44 am
regarded as precedent or cited before any
court except for the purpose of establishing                           CLERK
                                                                   Indiana Supreme Court
the defense of res judicata, collateral                               Court of Appeals
                                                                        and Tax Court

estoppel, or the law of the case.


APPELLANT, PRO SE                                        ATTORNEYS FOR APPELLEE
Hezekiah Joel Colbert                                    Gregory F. Zoeller
Wabash Valley Correctional Facility                      Attorney General
Carlisle, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Hezekiah Joel Colbert,                                   December 21, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         32A01-1601-PC-220
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Peter R. Foley,
Appellee-Plaintiff                                       Special Judge
                                                         Trial Court Cause No.
                                                         32D05-1110-PC-11



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A01-1601-PC-220 | December 21, 2016    Page 1 of 16
                                       Statement of the Case
[1]   Hezekiah Joel Colbert (“Colbert”) appeals from the post-conviction court’s

      denial of his petition for post-conviction relief, in which he alleged that he had

      received ineffective assistance of trial and appellate counsel. Concluding that

      Colbert has failed to meet his burden of showing that the post-conviction court

      erred by denying relief on his allegations of ineffective assistance of trial and

      appellate counsel, we affirm the post-conviction court’s judgment.


[2]   We affirm.


                                                     Issue
            Whether the post-conviction court erred by denying post-conviction
            relief on Colbert’s claims of ineffective assistance of trial and
            appellate counsel.

                                                     Facts
[3]   The facts of Colbert’s crimes were set forth in the memorandum decision from

      his direct appeal as follows:

              At the time relevant to this appeal, Jarrod Wilson (“Jarrod”) and
              Misty Wilson (“Misty”) had been married, divorced, and re-
              married. In the summer of 2008, they had been married for
              seven years, but by the following summer, they were estranged.
              Misty had started a romantic relationship with her high school
              boyfriend, Colbert. Jarrod moved out of the marital residence on
              Murray Street in Indianapolis and began to live at his parents’
              home on Sycamore Street in Brownsburg, Indiana. Colbert then
              moved in with Misty and her children. Although Misty and
              Colbert had discussed the prospect of marriage, she later
              informed Colbert that she wanted to reunite her family and

      Court of Appeals of Indiana | Memorandum Decision 32A01-1601-PC-220 | December 21, 2016   Page 2 of 16
        return to her husband Jarrod. After learning this, Colbert said
        that he would kill Jarrod, and began to wear in his waistband a
        butcher knife that he had taken from Misty’s house. In August of
        2009, Jarrod went to Misty’s home to help her repair plumbing,
        and met Colbert at the house.

        On August 28, 2009, three days after Colbert threatened to kill
        Jarrod, Misty saw Colbert carrying the butcher knife. That same
        day, Jarrod returned from work to his parents’ house. While on
        the computer, he received an instant message from Colbert, who
        was using Misty’s account. The message stated, “Ha ha, nice try.
        She’s playing both of us.” Tr. p. 404. Jarrod did not respond,
        but did inform Misty about the message. Jarrod then opened the
        garage door in anticipation of his parents’ return home, and fell
        asleep on the living room couch.

        Jarrod awoke as Colbert was stabbing him. Colbert wrapped his
        arm around Jarrod from behind, held him down, and stabbed
        him repeatedly in the side and chest. Jarrod broke free from
        Colbert and ran to the other side of the table in front of the couch
        and “[g]ot a good look” at Colbert, who was only a few feet
        away. He saw the knife Colbert was holding, which he
        recognized as a butcher knife from Misty’s house, and also
        noticed that Colbert had a tattoo on his neck. Jarrod managed to
        escape to a neighbor’s house, where the neighbor called the
        police and an ambulance. Jarrod was taken to Wishard hospital
        in Indianapolis, where he underwent emergency surgery to repair
        his injuries, which included wounds to his chest, abdomen,
        stomach, and diaphragm. Jarrod lost over one liter of blood and
        has suffered from long-term loss of feeling in his fingers. Jarrod
        told the police investigating the stabbing that Colbert was his
        attacker. When the police went to Colbert’s residence, he
        crashed his van into a neighbor’s garage while attempting to flee.

        The State subsequently charged Colbert with Class A felony
        attempted murder, Class A felony burglary, Class B felony
        aggravated battery, and Class C felony battery. The State also
        alleged that Colbert was an habitual offender. During the jury
Court of Appeals of Indiana | Memorandum Decision 32A01-1601-PC-220 | December 21, 2016   Page 3 of 16
              trial, the State called as a witness Sergeant Jennifer Barnes (“Sgt.
              Barnes”), who worked for the cyber crimes unit of the Indiana
              State Police. Sgt. Barnes testified that she conducted a forensic
              search of the computer at Misty’s home and found evidence that
              someone had used the Yahoo! maps website to look for
              directions from Misty’s house, where Colbert had been staying,
              to Jarrod’s parents’ house, where Jarrod was attacked. Colbert
              objected to this testimony on hearsay grounds, but the trial court
              overruled his objection.

              The jury ultimately found Colbert guilty as charged and found
              him to be an habitual offender. At the sentencing hearing, the
              trial court vacated Colbert’s convictions for aggravated battery
              and battery, and reduced the burglary conviction from a Class A
              felony to a Class C felony, all on double jeopardy grounds. The
              court then concluded that the aggravating factors outweighed the
              mitigating factors and sentenced Colbert to forty-eight years for
              the attempted murder conviction, enhanced by thirty years for
              the habitual offender determination, and to a consecutive twelve
              years for the burglary conviction, for an aggregate sentence of
              ninety years.

      Colbert v. State, No. 32A04-1004-CR-259 *1-2 (Ind. Ct. App. Dec. 30, 2010),

      reh’g denied, trans. denied.


[4]   On direct appeal, Colbert raised two arguments. Specifically, he argued that:

      (1) the trial court erred by admitting evidence regarding an internet search for

      directions from Colbert’s house to the victim’s house, and (2) his aggregate

      sentence of ninety years was inappropriate. In December 2010, our Court




      Court of Appeals of Indiana | Memorandum Decision 32A01-1601-PC-220 | December 21, 2016   Page 4 of 16
      issued a memorandum decision, affirming his convictions and sentence.1

      Thereafter, Colbert filed pro se petitions for rehearing and transfer, both of

      which were denied.


[5]   Subsequently, in October 2011, Colbert filed a pro se petition for post-

      conviction relief and later filed amended pro se petitions in October 2013 and

      May 2014.2 In his final amended petition, Colbert raised post-conviction claims

      of ineffective assistance of trial and appellate counsel. Specifically, he alleged,

      in relevant part, that his trial counsel had rendered ineffective assistance by

      failing to object to the following evidence: (1) two police in-car videos (State’s

      Exhibits 122 & 123); (2) the victim’s testimony regarding his identification of

      Colbert; (3) four letters written by Colbert to Misty and her daughter (State’s

      Exhibits 115-118); and (4) the State’s cross-examination of Colbert during the

      jury trial regarding his burglary prior conviction and the State’s evidence during

      his habitual offender enhancement phase, the accumulation of which he

      claimed resulted in a “transference of [the] burden of proof” in the habitual

      offender phase. (App. 86).


[6]   In regard to Colbert’s ineffective assistance of appellate counsel claim, he

      alleged, in relevant part, that his counsel had rendered ineffective assistance by:




      1
       When addressing Colbert’s evidentiary issue, our Court noted that this issue regarding the admission of the
      computer search evidence was “interesting” and “complicated.” Colbert, No. 32A04-1004-CR-259 at *6.
      2
       The Indiana Public Defender’s Office was appointed to represent Colbert after he filed his first post-
      conviction petition, and the Deputy State Public Defender withdrew her appearance in September 2013.

      Court of Appeals of Indiana | Memorandum Decision 32A01-1601-PC-220 | December 21, 2016         Page 5 of 16
      (1) failing to raise an appellate issue regarding his Fifth Amendment right to

      remain silent; (2) failing to raise an appellate issue regarding the admission into

      evidence of the four letters written by Colbert to Misty and her daughter; and

      (3) failing to file a petition for rehearing and a petition to transfer.


[7]   On October 31, 2014, the post-conviction court held a hearing on Colbert’s

      post-conviction petition.3 During the hearing, Colbert represented himself pro

      se and called his trial counsel, Michael J. Manning (“Trial Counsel Manning”),

      and appellate counsel, Lisa Manning (“Appellate Counsel Manning”) as

      witnesses.4 The post-conviction court also took judicial notice of the trial

      record, which showed that Trial Counsel Manning had objected at trial to the

      four letters written by Colbert to Misty and her daughter (State’s Exhibits 115-

      118).


[8]   Trial Counsel Manning testified that, during Colbert’s jury trial, he had

      objected to a police officer’s testimony and moved for a mistrial after the officer

      testified that Colbert did not want to answer the officer’s questions. At trial,

      Trial Counsel Manning argued that a mistrial should be granted because the

      officer had inappropriately commented on Colbert’s right to remain silent, and

      trial counsel asserted that the prosecutor had led the officer to do so. The trial




      3
       Initially, the Honorable Stephanie LeMay-Luken was the judge in Colbert’s post-conviction proceeding.
      However, in October 2013, the post-conviction court issued an order for election of a special judge, and the
      Honorable Jane Craney (“Judge Craney”) was selected as special judge. Thus, Judge Craney presided over
      Colbert’s October 2014 post-conviction hearing.
      4
          Trial Counsel Manning and Appellate Counsel Manning are married.


      Court of Appeals of Indiana | Memorandum Decision 32A01-1601-PC-220 | December 21, 2016           Page 6 of 16
       court denied the motion for mistrial, instructed the State that it and its witnesses

       were prohibited from commenting on Colbert’s lack of statement to police, and

       the trial court specifically admonished the jury that it was not to consider the

       officer’s testimony.


[9]    In regard to the lack of objection to the introduction into evidence of two police

       in-car videos (State’s Exhibits 122 & 123), Colbert asserted that Trial Counsel

       Manning should have objected to them because Colbert himself had not viewed

       them prior to trial. Trial Counsel Manning testified that, even if Colbert had

       not previewed the videos, he had viewed the videos prior to trial and had

       discussed them with Colbert. Trial counsel also testified that he had objected to

       State’s Exhibit 123 as cumulative.


[10]   When Colbert questioned Trial Counsel Manning about his lack of objection to

       the State’s impeachment of him with his burglary conviction, Trial Counsel

       Manning testified that “[a] [b]urglary conviction would almost always be

       admissible unless it was too old.” (Tr. 164).


[11]   Appellate Attorney Manning testified that she had reviewed the trial transcripts

       and had decided to raise the two appellate issues (hearsay evidentiary issue and

       sentencing issue) because she considered them to be the two strongest issues.

       When testifying at the post-conviction hearing, Appellate Attorney Manning

       acknowledged that she and Colbert had discussed the potential appellate issue

       regarding “[t]he Doyle violation that had come up on [his] post-Miranda




       Court of Appeals of Indiana | Memorandum Decision 32A01-1601-PC-220 | December 21, 2016   Page 7 of 16
silence.” (Tr. 80) (italics added).5 Colbert questioned Appellate Attorney

Manning as to why she chose to raise the hearsay evidentiary issue on appeal

instead of an issue challenging the denial of mistrial motion based on the police

officer’s comment on his right to remain silent, and she testified as follows:


         I had done a considerable amount of evidence or research on the
         Doyle violation[] in, mostly in, from our Supreme Court here in
         Indiana and the way that the witness had testified and the way
         that the Judge had sustained part of the objection, denied the
         mistrial and most importantly in the content of [the judge’s]
         admonishment as well as the jury’s response or lack of response
         to that admonishment as well as the State’s refusal to, or their,
         their, not their refusal but the fact that they didn’t bring that up in
         closing argument. Um, I had determined from all of that that a
         Doyle violation would not be successful on appeal. At that time, I
         had flagged this issue of the Yahoo map search being hearsay
         because it was an absolutely novel issue for the Court and had
         not been litigated before and I thought that would be more
         successful on appeal.

(Tr. 83-84) (italics added).




5
 In Doyle v. Ohio, 426 U.S. 610 (1976), the United States Supreme Court “held that under the Fourteenth
Amendment a prosecutor may not use the silence of a defendant who’s been arrested and Mirandized to
impeach the defendant.” Trice v. State, 766 N.E.2d 1180, 1182 (Ind. 2002) (citing Doyle, 426 U.S. at 619).
During the post-conviction hearing, Colbert also referred to the potential Doyle violation issue as a Fifth
Amendment issue. We note that a Doyle violation is a violation of the Fourteenth Amendment’s Due
Process Clause prohibition against fundamental unfairness, not a violation of the Fifth Amendment’s
privilege against self-incrimination. See Sobolewski v. State, 889 N.E.2d 849, 856 (Ind. Ct. App. 2008), trans.
denied.




Court of Appeals of Indiana | Memorandum Decision 32A01-1601-PC-220 | December 21, 2016              Page 8 of 16
[12]   On June 8, 2015, the post-conviction issued an order denying Colbert’s petition

       for post-conviction relief on all claims of ineffective assistance of trial and

       appellate counsel (“June 2015 Post-Conviction Order”). That same day,

       Colbert filed praecipe for withdraw of submission under Trial Rule 53.1 (“Trial

       Rule 53.1 motion”). In the meantime, Colbert filed a notice of appeal and

       started an appeal from the post-conviction court’s June 2015 Post-Conviction

       Order. In August 2015, the Indiana Supreme Court granted Colbert’s Trial

       Rule 53.1 motion, ordered Judge Craney to vacate her June 2015 Post-

       Conviction Order, and appointed the Honorable Peter R. Foley as special

       judge.


[13]   Thereafter, the post-conviction court held an additional hearing on November

       6, 2015. The parties stipulated that the post-conviction court could review the

       transcript of the October 31, 2014 hearing in order to rule on Colbert’s post-

       conviction petition relief claims. The post-conviction court also allowed

       Colbert to question Trial Counsel Manning regarding a bond issue. Thereafter,

       the post-conviction court issued an order denying Colbert’s petition for post-

       conviction relief on all claims of ineffective assistance of trial and appellate

       counsel. Colbert now appeals.


                                                   Decision
[14]   At the outset, we note that Colbert has chosen to proceed pro se and that his

       appellate brief is not the model of clarity. It is well settled that pro se litigants

       are held to the same legal standards as licensed attorneys. Evans v. State, 809

       N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. Thus, pro se litigants are
       Court of Appeals of Indiana | Memorandum Decision 32A01-1601-PC-220 | December 21, 2016   Page 9 of 16
       bound to follow the established rules of procedure and must be prepared to

       accept the consequences of their failure to do so. Id. “We will not become a

       party’s advocate, nor will we address arguments that are inappropriate,

       improperly expressed, or too poorly developed to be understood.” Barrett v.

       State, 837 N.E.2d 1022, 1030 (Ind. Ct. App. 2005), trans. denied.


[15]   Colbert appeals the post-conviction court’s order denying post-conviction relief

       on his claims of ineffective assistance of trial and appellate counsel. Our

       standard of review in post-conviction proceedings is well settled.

               We observe that post-conviction proceedings do not grant a
               petitioner a “super-appeal” but are limited to those issues
               available under the Indiana Post-Conviction Rules. Post-
               conviction proceedings are civil in nature, and petitioners bear
               the burden of proving their grounds for relief by a preponderance
               of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner
               who appeals the denial of PCR 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. The appellate court must accept the post-
               conviction court’s findings of fact and may reverse only if the
               findings are clearly erroneous. If a PCR petitioner was denied
               relief, he or she must show that the evidence as a whole leads
               unerringly and unmistakably to an opposite conclusion than that
               reached by the post-conviction court.

       Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal case

       citations omitted), trans. denied. Additionally, “[w]e will not reweigh the

       evidence or judge the credibility of the witnesses; we examine only the

       probative evidence and reasonable inferences that support the decision of the


       Court of Appeals of Indiana | Memorandum Decision 32A01-1601-PC-220 | December 21, 2016   Page 10 of 16
       post-conviction court.” Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007),

       reh’g denied, cert. denied.


[16]   Turning to Colbert’s post-conviction claims regarding ineffective assistance of

       counsel, we note that we apply the same standard of review to claims of

       ineffective assistance of trial counsel and ineffective assistance of appellate

       counsel. Williams v. State, 724 N.E.2d 1070, 1078 (Ind. 2000), reh’g denied, cert.

       denied. A claim of ineffective assistance of counsel requires a showing that: (1)

       counsel’s performance was deficient by falling below an objective standard of

       reasonableness based on prevailing professional norms; and (2) counsel’s

       performance prejudiced the defendant such that “‘there is a reasonable

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

       proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444

       (Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984), reh’g

       denied), reh’g denied, cert. denied. “A reasonable probability arises when there is a

       ‘probability sufficient to undermine confidence in the outcome.’” Grinstead v.

       State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466 U.S. at 694).

       “Failure to satisfy either of the two prongs will cause the claim to fail.” Gulzar

       v. State, 971 N.E.2d 1258, 1261 (Ind. Ct. App. 2012) (citing French v. State, 778

       N.E.2d 816, 824 (Ind. 2002)), trans. denied. “Indeed, most ineffective assistance

       of counsel claims can be resolved by a prejudice inquiry alone.” French, 778

       N.E.2d at 824. Therefore, if we can dismiss an ineffective assistance claim on

       the prejudice prong, we need not address whether counsel’s performance was

       deficient. Henley v. State, 881 N.E.2d 639, 645 (Ind. 2008).

       Court of Appeals of Indiana | Memorandum Decision 32A01-1601-PC-220 | December 21, 2016   Page 11 of 16
       A. Trial Counsel

[17]   On appeal, Colbert argues that his trial counsel rendered ineffective assistance

       by failing to object to the following evidence: (1) two police in-car videos

       (State’s Exhibits 122 & 123); (2) the victim’s testimony regarding his

       identification of Colbert; (3) four letters written by Colbert (State’s Exhibits 115-

       118); and (4) evidence regarding his burglary conviction during both phases of

       his trial.6


[18]   In regard to Colbert’s ineffective assistance of trial counsel claims, the post-

       conviction court determined that Colbert had failed to meet his burden of

       establishing grounds for relief on these claims. We agree with the post-

       conviction court’s determination.


[19]   To demonstrate ineffective assistance of trial counsel for failure to object, a

       petitioner must prove that an objection would have been sustained if made and

       that he was prejudiced by counsel’s failure to make an objection. Kubusch v.

       State, 934 N.E.2d 1138, 1150 (Ind. 2010), reh’g denied. Colbert, however, has

       failed to do so for each of his claims. Colbert has failed to specify what

       objection his trial counsel should have made to the evidence he now challenges,

       and he has failed to show that any such objections would have been sustained.

       Furthermore, Colbert has made absolutely no showing that there is a reasonable




       6
         Colbert also appears to attempt to argue other ineffective assistance of trial counsel claims. These
       arguments are waived because he did not provide a cogent argument. See Ind. App. Rule 46(A)(8)(a). See
       also Griffith v. State, 59 N.E.3d 947, 958 n.5 (Ind. 2016) (noting that the defendant had waived his arguments
       by failing to provide cogent argument).

       Court of Appeals of Indiana | Memorandum Decision 32A01-1601-PC-220 | December 21, 2016           Page 12 of 16
       probability that, but for his trial counsel’s alleged errors, the result of the

       proceeding would have been different. Accordingly, we affirm the post-

       conviction court’s denial of post-conviction relief on Colbert’s ineffective

       assistance of trial counsel claims. See French, 778 N.E.2d at 824 (holding that a

       petitioner’s failure to satisfy either of the two prongs of an ineffective assistance

       of counsel will cause the claim to fail).


       B. Appellate Counsel

[20]   Lastly, Colbert contends that the post-conviction court erred by denying him

       post-conviction relief on his ineffective assistance of appellate counsel claim.

       Wading through Colbert’s brief, we find that the argument most resembling a

       cogent argument is Colbert’s claim that Appellate Attorney Manning rendered

       ineffective assistance by failing to raise an appellate issue on direct appeal.

       Specifically, Colbert contends that Appellate Attorney Manning should have

       raised an appellate challenge to the trial court’s denial of his mistrial motion

       made after a police officer testified and referenced Colbert’s right to remain

       silent.7




       7
         Colbert also appears to attempt to argue other ineffective assistance of appellate counsel claims. These
       arguments, however, are waived because he did not provide a cogent argument. See Ind. App. Rule
       46(A)(8)(a). See also Griffith, 59 N.E.3d at 958 n.5 (noting that the defendant had waived his arguments by
       failing to provide cogent argument). Additionally, in regard to Colbert’s claim that his appellate counsel was
       ineffective for not filing a petition for rehearing or transfer, we note that Colbert cannot show that he was
       prejudiced because he filed both of these petitions.



       Court of Appeals of Indiana | Memorandum Decision 32A01-1601-PC-220 | December 21, 2016          Page 13 of 16
[21]   Ineffective assistance of appellate counsel claims “‘generally fall into three basic

       categories: (1) denial of access to an appeal, (2) waiver of issues, and (3) failure

       to present issues well.’” Garrett v. State, 992 N.E.2d 710, 724 (Ind. 2013)

       (quoting Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006)). Colbert argues that

       his appellate counsel rendered ineffective assistance because she failed to raise a

       challenge to the denial of his mistrial motion on appeal. Thus, his ineffective

       assistance of appellate counsel claims are based upon category (2).


[22]   “Because the decision regarding what issues to raise and what arguments to

       make is ‘one of the most important strategic decisions to be made by appellate

       counsel,’ ineffectiveness is very rarely found.” Conner v. State, 711 N.E.2d 1238,

       1252 (Ind. 1999) (quoting Bieghler, 690 N.E.2d at 193), reh’g denied, cert. denied.

       “‘Accordingly, when assessing these types of ineffectiveness claims, reviewing

       courts should be particularly deferential to counsel’s strategic decision to

       exclude certain issues in favor of others, unless such a decision was

       unquestionably unreasonable.’” Id. (quoting Bieghler, 690 N.E.2d at 194).


[23]   We need not, however, decide whether appellate counsel’s performance was

       deficient because Colbert has not shown prejudice on this or any of his

       ineffective assistance of appellate counsel claims.8 See Young v. State, 746

       N.E.2d 920, 927 (Ind. 2001) (explaining that it was not necessary to address the

       allegations of deficient performance where the petitioner had failed to establish



       8
        We note, however, that Appellate Attorney Manning’s testimony during the post-conviction hearing clearly
       shows that she made a strategic decision to exclude the mistrial issue in favor of the hearsay evidentiary issue.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1601-PC-220 | December 21, 2016            Page 14 of 16
       prejudice and affirming the trial court’s denial of post-conviction relief);

       Coleman v. State, 741 N.E.2d 697, 701 n.4 (Ind. 2000) (quoting Strickland, 466

       U.S. at 697) (explaining that “‘[i]f it is easier to dispose of an ineffectiveness

       claim on the ground of lack of sufficient prejudice, which we expect will often

       be so, that course should be followed’”), reh’g denied, cert. denied.


[24]   To succeed on his ineffective appellate counsel claim, “the prejudice-prong of

       Strickland require[d] [Colbert] to demonstrate a reasonable probability that, but

       for his counsel’s errors, the result of his direct appeal would have been

       different.” See Martin v. State, 760 N.E.2d 597, 600 (Ind. 2002) (citing Strickland,

       466 U.S. at 694). Thus, to show prejudice on his ineffective appellate counsel

       claim regarding the lack of mistrial argument on direct appeal, Colbert was

       required to show that, had his appellate counsel raised that issue, this Court

       would have reversed the trial court’s mistrial ruling and reversed Colbert’s

       convictions.


[25]   Colbert, however, has not shown that there is a reasonable probability that the

       result of his direct appeal would have been different had his appellate counsel

       raised the mistrial issue. Indeed, his brief contains a rambling recitation of

       evidence from trial and general references to cases, and it does not specifically

       show the prejudice necessary to meet the burden of his ineffective assistance of

       appellate counsel claim. See Garrett, 992 N.E.2d at 724 (explaining that the

       prejudice prong for the waiver of issues category of an ineffective assistance of

       appellate counsel claim requires an examination of whether the issues that

       appellate counsel failed to raise would have been clearly more likely to result in

       Court of Appeals of Indiana | Memorandum Decision 32A01-1601-PC-220 | December 21, 2016   Page 15 of 16
       reversal or an order for a new trial). Accordingly, we affirm the post-conviction

       court’s denial of post-conviction relief on Colbert’s ineffective assistance of

       appellate counsel claims.


[26]   Affirmed.


       Kirsch, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1601-PC-220 | December 21, 2016   Page 16 of 16
