      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                              FILED
      regarded as precedent or cited before any                                    Oct 16 2019, 5:43 am
      court except for the purpose of establishing
      the defense of res judicata, collateral                                            CLERK
                                                                                   Indiana Supreme Court
                                                                                      Court of Appeals
      estoppel, or the law of the case.                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      David Wemhoff                                            Curtis T. Hill, Jr.
      South Bend, Indiana                                      Attorney General of Indiana
                                                               Matthew B. MacKenzie
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Harold E. Chastain,                                      October 16, 2019
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               18A-PC-2799
              v.                                               Appeal from the Elkhart Superior
                                                               Court
      State of Indiana,                                        The Honorable Stephen R.
      Appellee-Respondent.                                     Bowers, Judge
                                                               Trial Court Cause No.
                                                               20D02-1801-PC-3



      Mathias, Judge.


[1]   Following his convictions for Class C felony intimidation with a deadly weapon

      and Class B misdemeanor battery, Harold E. Chastain (“Chastain”) filed a


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019                     Page 1 of 15
      petition for post-conviction relief in Elkhart Superior Court. The post-

      conviction court denied Chastain’s petition. Chastain appeals and presents two

      issues, which we restate as: (1) whether the post-conviction court clearly erred

      in determining that Chastain was not denied the effective assistance of trial

      counsel; and (2) whether the post-conviction court clearly erred in rejecting

      Chastain’s claim that he did not knowingly and intelligently waive his right to

      testify on his own behalf.


[2]   We affirm.


                                 Facts and Procedural History

[3]   The facts underlying Chastain’s convictions were set forth by this court on

      direct appeal as follows:


              [O]n the evening of March 8, 2013, Justin Beegle was waiting for
              a table with his family at the Between the Buns restaurant in
              Elkhart. Beegle heard Chastain loudly arguing with a woman,
              Tracy Wilmore, in the parking lot, and, after he saw Chastain
              shove her, Beegle decided to intervene. He began walking toward
              Chastain and Wilmore. Chastain noticed Beegle walking toward
              him and said, “do you have a f***ing problem?” Tr. p. 237.
              Beegle stopped walking when he was about ten to fifteen feet
              from Chastain and had some argumentative words with
              Chastain. Chastain started walking toward Beegle, who told
              Chastain, “you don’t want to do that . . . .” Id. at 238. Chastain
              then turned around, went to his truck, retrieved a handgun,
              cocked and pointed it at Beegle, and then said “I’ll f***ing kill
              you” several times. Id. Beegle responded by telling Chastain he
              was a “f***ing p***y.” Id. at 265. The encounter ended shortly
              thereafter when Chastain got in his truck and drove away.


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019   Page 2 of 15
      Chastain v. State, 58 N.E.3d 235, 236–37 (Ind. Ct. App. 2016), trans. denied. As a

      result of this encounter, the State charged Chastain with Class C felony

      intimidation, Class D felony pointing a firearm, and Class B misdemeanor

      battery. Id. at 237.


[4]   At Chastain’s jury trial, two neutral eyewitnesses testified that they heard

      Chastain threaten his girlfriend Wilmore; specifically, they heard him yell “shut

      your f**king mouth,” and “I’m going to f**king kill you.” Trial Tr. Vol. 1, pp.

      44, 46, 116. These witnesses also testified that when Beegle approached

      Chastain and Wilmore, Chastain stated to Beegle, “do you want a piece of

      this[?]” and “I’ll shoot you.” Id. at 49, 120. When Beegle responded by telling

      Chastain, “you don’t want to do that,” Chastain retrieved a handgun from his

      truck, cocked it, and pointed it at Beegle, who testified that Chastain repeatedly

      told him, “I’ll f**king kill you.” Id. at 238.


[5]   Chastain’s girlfriend testified that, when Beegle approached them, she told him

      to leave. She further testified that before he retrieved his handgun, Chastain told

      her that Beegle had a knife. She also testified that Chastain removed the

      ammunition magazine from his handgun before pointing it at Beegle. Another

      of Chastain’s friends, who was present that night, testified that he did not see a

      knife and that Chastain did not tell him that Beegle had a knife the night of the

      incident. However, this friend explained that he “heard about a knife later on.”

      Trial Tr. Vol. 2. p. 341. Beegle admitted that he carried a knife clipped on his

      belt but denied brandishing or even touching the knife on the night in question.



      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019   Page 3 of 15
      Neither of the two neutral witnesses saw a knife or heard anyone mention a

      knife during the confrontation between Chastain and Beegle.

[6]   Chastain’s trial counsel called as witnesses Beegle’s ex-girlfriend, who was

      dating Beegle at the time of the incident, and the ex-girlfriend’s father. Both of

      these witnesses testified, for purposes of impeaching Beegle’s testimony, that he

      later told them he pulled his knife on Chastain and that Chastain pulled a gun

      on him in response. Trial Tr. Vol. 2, pp. 352, 363. The trial court instructed the

      jury to consider these statements only for purposes of impeaching Beegle’s

      testimony that he did not brandish the knife.


[7]   Toward the end of the trial, Chastain’s counsel requested a break to allow

      Chastain “an opportunity to make a final call” regarding whether he would

      testify on his own behalf. Trial Tr. Vol. 2, p. 453. The court recessed and

      resumed its proceedings forty-two minutes later. Chastain did not testify.

[8]   In his closing statement, Chastain’s trial counsel argued that Chastain acted in

      self-defense after Beegle brandished his knife. He argued that the neutral

      eyewitnesses were too far away to see the knife and noted that Chastain told

      others that Beegle had a knife. He also mentioned that the testimony of Beegle’s

      ex-girlfriend and her father indicated that Beegle later admitted to them that he

      did pull his knife that night.

[9]   The jury found Chastain guilty as charged, but the trial court vacated the

      pointing a firearm conviction at sentencing. Trial Tr. Vol. 3, p. 595. On the

      Class C felony conviction, the court sentenced Chastain to six years, suspended

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019   Page 4 of 15
       to probation; on the Class B misdemeanor conviction, the trial court sentenced

       Chastain to 180 days, suspended to probation.

[10]   On direct appeal, Chastain argued that the State had presented insufficient

       evidence to convict him of Class C felony intimidation. After analyzing several

       cases interpreting the intimidation statute, we concluded:

               [A]s held by this court in Roar [v. State, 52 N.E.3d 940 (Ind. Ct.
               App. 2016)], and as adopted by our supreme court,[1] a conviction
               under the intimidation statute should not depend upon a precise
               parsing of the threatening language used by a defendant or a
               detailed timeline of when a threat was issued in relation to a prior
               lawful act. Here, it is clear that Beegle engaged in a prior lawful
               act, and there was a clear nexus between that act and Chastain’s
               threat to kill Beegle while pointing a gun at him. Thus, there is
               sufficient evidence to support the jury’s finding that Chastain
               committed the crime of intimidation while drawing or using a
               deadly weapon.


       Chastain, 58 N.E.3d at 241.


[11]   On January 17, 2018, Chastain filed a petition for post-conviction relief,

       alleging ineffective assistance of trial counsel and prosecutorial misconduct with

       regard to discovery. The post-conviction court held an evidentiary hearing on

       Chastain’s petition on August 23, 2018. At the hearing, Chastain and his trial

       counsel testified. Chastain testified that his trial counsel informed him of his



       1
         Our supreme court granted transfer in Roar and “adopt[ed] and incorporate[ed] that portion of the Court of
       Appeals’ opinion addressing the sufficiency of the evidence in accordance with Indiana Appellate Rule
       58(A)(1)[.]” Roar v. State, 54 N.E.3d 1001, 1002 (Ind. 2016). Our supreme court summarily affirmed the
       remaining portion of our opinion. Id. (citing App. R. 58(A)(2)).

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019                Page 5 of 15
       right to testify but claimed that his counsel had not prepared him to testify.

       Chastain also testified that, during trial, he could not decide whether he should

       testify but that he now wished he had testified:


               After – after the fact and understanding a lot more of how it all
               works through the court systems, how the actual proceedings
               take place, I wish I would have seen a few live trials in real life to
               see how it actually works. Uh, the preparedness of witnesses and
               the fact that the evidence was not completely given to the jury or
               the court to – after the fact, it was very clear to me that nobody
               testified to [Beegle] having the knife during the trial. It’s a huge
               part of the trial.


       Post-Conviction Tr. p. 27. On October 29, 2018, the post-conviction court

       entered findings of fact and conclusions of law denying Chastain’s petition.

       Chastain now appeals.


                            Post-Conviction Standard of Review

[12]   Our standard of review for claims that a post-conviction court erred in denying

       relief is well settled. The post-conviction petitioner bears the burden of

       establishing grounds for relief by a preponderance of the evidence. Willoughby v.

       State, 792 N.E.2d 560, 562 (Ind. Ct. App. 2003), trans. denied. When a petitioner

       appeals the denial of a petition for post-conviction relief, the petitioner stands in

       the position of one appealing from a negative judgment. Id. On appeal, we do

       not reweigh evidence nor judge the credibility of witnesses; therefore, to prevail,

       Chastain must show that the evidence in its entirety leads unerringly and

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


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019   Page 6 of 15
       court. Id. Where, as here, the post-conviction court makes findings of fact and

       conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we

       do not defer to the court's legal conclusions, but the “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.” Henley v. State, 881

       N.E.2d 639, 644 (Ind. 2008).


                                 I. Ineffective Assistance of Trial Counsel

[13]   Chastain contends that his trial counsel was ineffective for a variety of reasons.

       “[C]ounsel’s performance is presumed effective, and a defendant must offer

       strong and convincing evidence to overcome this presumption.” Kubsch v. State,

       934 N.E.2d 1138, 1147 (Ind. 2010). A claim of ineffective assistance of trial

       counsel requires a showing that: (1) counsel’s performance was deficient by

       falling below an objective standard of reasonableness; and (2) that the deficient

       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.” Strickland v. Washington, 466 U.S. 668,

       694 (1984); Kubsch, 934 N.E.2d at 1147. Failure to satisfy either of the two

       elements will cause the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind.

       2002). When it is easier to dispose of an ineffectiveness claim on the lack of

       prejudice, then this is the course we should follow. Trujillo v. State, 962 N.E.2d

       110, 114 (Ind. Ct. App. 2011). Moreover, “[i]solated mistakes, poor strategy, or

       bad tactics do not necessarily amount to ineffective assistance of counsel.”

       Herrera v. State, 679 N.E.2d 1322, 1326 (Ind. 1997) (citations omitted).

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019   Page 7 of 15
[14]   Here, Chastain contends that his trial counsel was constitutionally ineffective

       because he failed to call Chastain as a witness. As a result of this failure,

       Chastain contends that the only substantive evidence that Beegle drew a knife

       was not presented to a jury, thereby hamstringing his claim of self-defense.


[15]   It has long been the law in Indiana that “[t]he determination of whether a

       defendant should testify is a matter of trial strategy.” White v. State, 25 N.E.3d

       107, 134 (Ind. Ct. App. 2014) (citing Whitener v. State, 696 N.E.2d 40, 42 (Ind.

       1998)), trans. denied. It has also been held, however, that the right to testify is

       personal to the defendant and may not be waived by counsel as a matter of trial

       strategy. Moore v. State, 655 N.E.2d 1251, 1254 (Ind. Ct. App. 1995) (citing

       United States v. Curtis, 742 F.2d 1070, 1075 (7th Cir. 1984)). We take this to

       mean that, if a defendant wishes to testify, trial counsel cannot prevent him

       from doing so as a matter of trial strategy. And the corollary of this rule is that

       trial counsel also cannot force a client to testify if he does not wish to do so.

       Ultimately, the question of whether to testify belongs to the defendant.


[16]   Here, there is no evidence to suggest that Chastain’s counsel prevented him

       from testifying. Chastain admitted that his trial counsel informed him of his

       right to testify. See Post-Conviction Tr. p. 22 (in response to question “Did [trial

       counsel] explain anything about testifying?” Chastain responded, “He said I

       had the right to testify.”). Moreover, the trial transcript shows that trial counsel

       received an extended recess to discuss with Chastain his decision of whether to

       testify. See Trial Tr. Vol. 2, p. 453 (trial counsel requests a recess to allow

       Chastain “an opportunity to make a final call” regarding whether he would

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019   Page 8 of 15
       testify on his own behalf). When the trial resumed, Chastain did not testify.

       From this, it can reasonably be inferred that Chastain chose not to testify.

       Indeed, at the post-conviction hearing, he frankly admitted that he was unsure

       of whether to testify during his trial but, in hindsight, wished he had. This

       supports the post-conviction court’s determination that Chastain’s trial counsel

       was not ineffective. He clearly gave Chastain the choice of whether to testify,

       and Chastain chose not to do so. Chastain’s after-the-fact regret does not mean

       that his trial counsel was ineffective.


[17]   Still, Chastain argues that his testimony would have been the only substantive

       evidence regarding whether Beegle brandished his knife and that his trial

       counsel should have prepared him to testify and called him as a witness to

       establish this fact.2 He notes that, although Beegle’s ex-girlfriend and her father

       testified that Beegle told them that he pulled his knife on Chastain, the trial

       court admitted this evidence only for impeachment purposes. While this is true,

       it ignores the fact that Chastain’s girlfriend testified that, before Chastain

       retrieved his handgun, he told her that Beegle had a knife. Another of

       Chastain’s friends testified that he heard about the knife “later on.” Trial Tr.

       Vol. 2. p. 341. And Beegle admitted that he was carrying a knife but denied ever

       pulling it out during his confrontation with Chastain. Thus, assuming that the




       2
        In support of his argument that he was not adequately prepared to testify, Chastain cites Tison v. State, No.
       82A01-0904-PC-179, 2009 WL 3161404 (Ind. Ct. App. Oct. 2, 2009), trans. denied, which is an unpublished
       memorandum decision. We remind appellant’s counsel that, pursuant to Indiana Appellate Rule 65(D), a
       memorandum decision shall not be regarded as precedent or cited before any court except for the purpose of
       establishing the defense of res judicata, collateral estoppel, or law of the case.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019                   Page 9 of 15
       jury obeyed the trial court’s instructions to consider the testimony of Beegle’s

       ex-girlfriend and her father for impeachment purposes only,3 the jury also heard

       other substantive evidence that Beegle had a knife.


[18]   Furthermore, even if Chastain’s counsel did advise him not to take the stand,

       such advice was not unreasonable given Chastain’s criminal history. At the

       time of trial, Chastain had a prior conviction for Class A misdemeanor

       conversion (he was originally charged with Class D felony theft) and two prior

       convictions for Class A misdemeanor battery. Accordingly, had he testified on

       his own behalf, Chastain would have been subject to impeachment based on his

       conviction for conversion. See Ind. Evidence Rule 609(a) (providing that

       evidence of a witness’s prior conviction for a crime of dishonesty is admissible

       to impeach the witness); Johnson v. State, 671 N.E.2d 1203, 1206 n.3 (Ind. Ct.

       App. 1996) (holding that defendant’s prior conviction for criminal conversion

       was admissible for impeachment purposes under Evidence Rule 609(a)), trans.

       denied; Winegar v. State, 455 N.E.2d 398, 401 (Ind. Ct. App. 1983) (holding that

       conversion, as a lesser included offense of theft, is a crime of dishonesty, and

       thus, a conviction for conversion may be admissible for impeachment

       purposes).

[19]   Additionally, had he testified, Chastain’s prior convictions for battery may have

       been admissible to rebut his claim of self-defense, thereby weakening his case.



       3
        See Hernandez v. State, 785 N.E.2d 294, 303 (Ind. Ct. App. 2003) (noting that we will presume that the jury
       will follow the court’s admonitions to consider evidence for a particular purpose), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019                Page 10 of 15
       See Poindexter v. State, 664 N.E.2d 398, 400–01 (Ind. Ct. App. 1996) (holding

       that trial court did not err in admitting, under intent exception to Evidence Rule

       404(b), evidence of defendant’s prior batteries to rebut her claim of self-

       defense).

[20]   For similar reasons, we cannot say that Chastain established that he was

       prejudiced by his failure to testify. The jury heard evidence that Beegle had a

       knife during the encounter. Had Chastain testified, his own self-serving

       testimony would likely have been impeached by his prior convictions. His

       testimony would not have been corroborated by the neutral eyewitnesses who

       did not see Beegle in possession of a knife. Thus, Chastain has not established

       that, had he testified, the outcome of the trial would have been any different.

[21]   In short, the post-conviction court did not clearly err in determining that

       Chastain was not denied the effective assistance of counsel based on his trial

       counsel’s failure to call Chastain as a witness.4


                                        II. Waiver of the Right to Testify

[22]   Chastain also argues that the post-conviction court failed to address his claim

       that there was no proof that he knowingly and intelligently waived his right to

       testify on his own behalf. In addressing this argument, we first note that

       Chastain did not present any claim regarding the knowing and intelligent


       4
        We also reject Chastain’s argument that his trial counsel was ineffective for failing to prepare him to testify.
       Chastain fails to explain what advantage such preparation would have provided, especially in light of his
       prior convictions that would have impeached his testimony. And given that Chastain did not testify, we
       cannot fault trial counsel for failing to prepare for something that did not happen.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019                   Page 11 of 15
       waiver of his right to testify in his post-conviction petition. See Appellant’s App.

       pp. 11–13.5 The failure to present an argument in the petition waives the right to

       raise the argument on appeal. Koons v. State, 771 N.E.2d 685, 691 (Ind. Ct. App.

       2002), trans. denied. Chastain did not present a claim that he did not knowingly

       or intentionally waive his right to testify until the conclusion of the post-

       conviction hearing, see Post-Conviction Tr. p. 81, and in his post-hearing

       memorandum. See Appellant’s App. pp. 42–45, 53. We therefore conclude that

       Chastain has waived any argument regarding his waiver of his right to testify.


[23]   Furthermore, Chastain frames his argument as whether the post-conviction

       court “failed to address the issue of whether Mr. Chastain’s waiver of his

       Constitutionally protected right to testify on his own behalf was done

       knowingly, voluntarily and intelligently.” Appellant’s Br. at 27. This appears to

       be a free-standing claim of error, which is generally unavailable in post-

       conviction proceedings. Timberlake v. State, 753 N.E.2d 591, 597–98 (Ind. 2001).

       That is, if an issue was known and available, but not raised on direct appeal, it

       is waived; if it was raised on direct appeal, but decided adversely, it is res

       judicata. Lee v. State, 91 N.E.3d 978, 983 (Ind. Ct. App. 2017), trans. denied

       (citing Timberlake, 753 N.E.2d at 597–98). Even allegations of fundamental



       5
         The grounds for relief listed in Chastain’s petition were: (1) ineffective assistance of trial counsel by failing
       to call Chastain as a witness; (2) ineffective assistance of trial counsel for failing to adequately consult
       Chastain regarding him testifying; (3) ineffective assistance of trial counsel for failing to properly question
       witness Tracy Wilmore and failing to call as a witness Matt Wilmore; (4) ineffective assistance of trial
       counsel for failing to properly question witness Elizabeth Beegle; (5) ineffective assistance of trial counsel for
       failing to properly question witness Destinee Jenkins; (6) the policies of the prosecuting attorney’s office
       violated Chastain’s due process rights; and (7) ineffective assistance of trial counsel for failing to sign a
       discovery agreement with the prosecutor’s office.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019                      Page 12 of 15
       error are improper as free-standing claims of error in post-conviction

       proceedings. Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002). “In post-

       conviction proceedings, complaints that something went awry at trial are

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

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

       Id.


[24]   Here, there is no indication that Chastain’s argument that he did not knowingly

       or intelligently waive his right to testify was unknown or unavailable to him on

       direct appeal. Therefore, it cannot be presented as a free-standing claim of error

       in his petition for post-conviction relief.


[25]   However, Chastain also appears to couch his argument regarding the waiver of

       his right to testify in terms of the ineffective assistance of trial counsel. See

       Appellant’s Br. at 30 (discussing prejudice prong of Strickland test). Out of an

       abundance of caution, and our preference to decide issues on the merits, we

       address Chastain’s argument in the context of a claim of ineffective assistance

       of trial counsel.

[26]   As we explained in Vanzandt v. State, 730 N.E.2d 721, 723 (Ind. Ct. App. 2000):


               The right to testify on one’s own behalf in a criminal proceeding
               has been described by the United States Supreme Court as “a
               right implicit in the Constitution.” United States v. Dunnigan, 507
               U.S. 87, 96 (1993). See also Baxter v. State, 522 N.E.2d 362, 368
               (Ind. 1988) (“In light of all of these cases, we accept Baxter’s
               claim that his right to testify is constitutionally based.”).
               However, a trial court judge has no affirmative duty to insure

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019   Page 13 of 15
               that a defendant represented by counsel knowingly and
               intelligently waived his right to testify at trial. Correll v. State, 639
               N.E.2d 677, 681-82 (Ind. Ct. App. 1994). A trial court is entitled
               to presume that a lawyer and his client have discussed the
               possibility of testifying. Phillips v. State, 673 N.E.2d 1200, 1202
               (Ind. 1996).


[27]   Chastain argues that he did not knowingly and intelligently waive his right to

       testify because his trial counsel did not adequately consult with him or prepare

       him to testify. This argument is belied by the evidence in the record. First,

       Chastain admitted that his trial counsel informed him that he had a right to

       testify. He also testified that he and his trial counsel discussed the possibility of

       his testifying on his own behalf. The trial transcript also shows that Chastain’s

       trial counsel was granted an extended recess to discuss with Chastain whether

       he would testify, and when the trial resumed, Chastain did not testify. From

       this, the post-conviction court could reasonably conclude that Chastain

       knowingly and intelligently waived his right to testify. The post-conviction

       court was under no obligation to credit Chastain’s self-serving testimony to the

       contrary. Accordingly, the post-conviction court did not err by failing to

       conclude that Chastain did not knowingly and intelligently waive his right to

       testify.


                                                 Conclusion
[28]   The post-conviction court did not clearly err in concluding that Chastain failed

       to meet his burden of proving that he was denied the ineffective assistance of

       trial counsel or that he did not knowingly waive his right to testify.


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019   Page 14 of 15
[29]   Affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019   Page 15 of 15
