MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                             Oct 27 2016, 8:55 am

regarded as precedent or cited before any                             CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Kenneth D. Alvies                                        Gregory F. Zoeller
Michigan City, Indiana                                   Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kenneth D. Alvies,                                       October 27, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         33A04-1510-PC-1691
        v.                                               Appeal from the
                                                         Henry Circuit Court
State of Indiana,                                        The Honorable
Appellee-Respondent.                                     Mary G. Willis, Judge
                                                         Trial Court Cause No.
                                                         33C01-1411-PC-7



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 33A04-1510-PC-1691 | October 27, 2016   Page 1 of 22
[1]   Kenneth D. Alvies (“Alvies”) appeals the denial of his petition for post-

      conviction relief, contending that the post-conviction court erred in denying his

      petition. On appeal, he raises the following restated issues for our review:


              I. Whether Alvies received ineffective assistance of his trial
              counsel;


              II. Whether Alvies received ineffective assistance of his appellate
              counsel; and


              III. Whether Alvies can raise freestanding claims of error as to
              sentencing.


[2]   We affirm.


                                 Facts and Procedural History
[3]   The facts supporting Alvies’s convictions as set forth by this court in a

      published opinion on his direct appeal are as follows:


              In the spring of 2000, Alvies lived with his girlfriend, Josie
              Muscar, and her two sisters, Julia Wilder and Hazel Conley, on
              South 6th Street in New Castle. James Davis, who sold drugs,
              lived down the street from Alvies. In late May 2000, Alvies gave
              Muscar some cocaine to give to Davis, which Muscar later
              delivered to Davis at a local bar.


              On April 4, 2000, Wilder planned to pick up Conley from school
              around 2:00 p.m. Before she left, the telephone rang, and Wilder
              answered it. Wilder recognized the voice of the person calling as
              Davis and handed the phone to Alvies. Wilder heard Alvies tell
              Davis that he would “be right there.” Before Alvies left the
              house, Wilder saw him standing in Conley’s bedroom and also

      Court of Appeals of Indiana | Memorandum Decision 33A04-1510-PC-1691 | October 27, 2016   Page 2 of 22
        observed a small gun on the bed. Alvies and Wilder left the
        house at the same time, and Alvies returned fifteen to twenty
        minutes later.


        Also on April 4, Michelle Morgan, who regularly purchased
        drugs from Davis, arrived at Davis’ home to buy oxycontin.
        Morgan entered the house and saw Davis sitting on the floor
        with saliva coming out of his mouth. She then saw a second
        man, later identified as Donnie Nicholson, lying face down in the
        bathroom. Morgan believed that the men were suffering from
        drug overdoses, and she left to get help. She saw a neighbor,
        Matt Schetgen, and asked him to call 911. She then went home
        to tell her husband, and the two returned to Davis’ home. When
        Morgan discovered that no one had called 911, she made the call.


        New Castle Police Officer Brad Brown was the first officer at the
        scene. When Officer Brown arrived, he saw Morgan sitting next
        to Davis and noticed blood in Davis’ hair. Morgan told Officer
        Brown about the man in the bathroom, and the officer
        determined that Nicholson was warm but had no pulse. Officer
        Brown discovered blood on Nicholson’s chest, two holes in his
        sweatshirt, and an injury to his head. Both Davis and Nicholson
        died of gunshot wounds. Davis was shot in the head, and
        Nicholson suffered three gunshot wounds, two to the body and
        one to the head.


        As police and emergency vehicles began to arrive at Davis’
        home, Conley and others gathered on the porch to watch the
        events down the street. Alvies, however, did not go out onto the
        porch. At some point that afternoon, Alvies asked for a ride to
        Muncie. When no one in the house would give him a ride,
        Alvies contacted a friend who agreed to take him. Before he left
        for Muncie, Alvies asked Muscar for gray duct tape. Muscar,
        who was pregnant at the time and upset with Alvies because he
        was not going to take her to the doctor, asked Alvies why he was


Court of Appeals of Indiana | Memorandum Decision 33A04-1510-PC-1691 | October 27, 2016   Page 3 of 22
        leaving, and Alvies stated to Muscar that “he did it” and if she
        told anyone, he would kill her.


        Later in the day on April 4, Indiana State Police Trooper David
        Cashdollar arrived at Davis’ home to collect evidence. He
        recovered a .25 caliber automatic pistol from a recliner in the
        front room where Davis was found, but that gun was inoperable.
        Trooper Cashdollar found spent shell casings in the front room,
        on top of the washing machine in the utility room, and in the
        pocket of a shirt hanging in the utility room. Thereafter, a
        paramedic who had been at the scene working on Nicholson
        found a spent shell casing in his medical bag. According to the
        paramedic, the shell casing must have fallen inside his bag as he
        lifted Nicholson’s body off the floor.


        On the night of April 4, Conley found a brown holster under her
        mattress in her bedroom. She contacted police, and officers later
        retrieved the holster. Subsequently, by examining the caller
        identification box at Davis’ home, police learned of Davis’
        telephone call to Alvies’ home at 1:38 p.m. on April 4. On April
        14, 2000, the State charged Alvies with two counts of murder.


        While Alvies was in jail awaiting trial, he told two inmates, Brian
        Pfenninger and Matthew Dishman, that he had committed the
        murders. Specifically, he told Dishman that he went to Davis’
        house that day to collect money for cocaine that Davis was
        supposed to have sold for Alvies. Alvies told Dishman that
        Davis claimed that he did not have the money to pay him, and
        that Muscar had not given him all the cocaine that was supposed
        to have been delivered. He further told Dishman that he shot
        Davis in the head and, as he looked around the house for money,
        he saw Nicholson looking out of the bathroom. Alvies then shot
        Nicholson three times, twice in the chest and once in the head.
        Alvies told Pfenninger a similar version of events. He also told
        Pfenninger, however, that he was going to kill Muscar and her
        family and that she was too scared to testify against him.
Court of Appeals of Indiana | Memorandum Decision 33A04-1510-PC-1691 | October 27, 2016   Page 4 of 22
              On June 23, 2001, Shirley Dudley was performing some
              maintenance and gardening work at Davis’ former residence.
              While digging in an area near the back stairs, Dudley found a
              small automatic pistol wrapped in gray duct tape. As a result of
              exposure to the elements, the gun was inoperable. Indiana State
              Police Sergeant Mark Keisler repaired the gun and compared it
              with the spent casings found in Davis’ home and the bullets
              recovered from the two victims’ bodies. Sergeant Keisler
              determined that the bullets were all fired from the same weapon
              and could have been fired from either the buried gun or the gun
              officers had found inside Davis’ home. However, he determined
              that the spent casings had all been fired from the gun buried
              behind Davis’ home.


      Alvies v. State, 795 N.E.2d 493, 496-97 (Ind. Ct. App. 2003), trans. denied.


[4]   On April 14, 2000, the State charged Alvies with two counts of murder, and the

      case proceeded to jury trial in June 2002. The jury found Alvies guilty of both

      counts of murder, and on August 1, 2002, the trial court sentenced him to two

      consecutive terms of fifty-nine years, for an aggregate sentence of 118 years.

      Alvies filed a direct appeal alleging that the trial court abused its discretion

      when it denied Alvies’s motion to remove three jurors, admitted testimony that

      Alvies claimed was an evidentiary harpoon, refused to give the jury one of his

      proposed instructions regarding witness credibility and impeachment, and

      denied his motion for a mistrial. A panel of this court affirmed his convictions

      and sentence in a published opinion. See Alvies, 795 N.E.2d 493.


[5]   Alvies filed a petition for post-conviction relief, alleging ineffective assistance of

      trial counsel, ineffective assistance of appellate counsel, and sentencing error in


      Court of Appeals of Indiana | Memorandum Decision 33A04-1510-PC-1691 | October 27, 2016   Page 5 of 22
      relying on aggravating circumstances in violation of Blakely v. Washington1 and

      Apprendi v. New Jersey.2 At the hearing on his petition for post-conviction relief,

      Alvies, acting pro se, presented the testimony of New Castle Police Department

      Officer David Carnes (“Officer Carnes”), who investigated the case against

      Alvies. Officer Carnes helped create State’s Exhibit 3, a video showing a caller

      ID box belonging to Wilder, which revealed that at 1:38 p.m. on the day of the

      murders, Wilder received a call from Davis’s home address. During the post-

      conviction relief hearing, Officer Carnes testified that State’s Exhibit 3 had not

      been “tampered with before it was recorded” and the video as it had been

      shown to the jury was accurate. P-CR Tr. at 7.


[6]   Alvies also presented the testimony of David McCord (“McCord”), who was

      his trial counsel. McCord testified that the theory of defense at trial was

      Alvies’s innocence. McCord testified that Alvies never informed him of any

      alibi, but McCord did have an investigator who looked into several witnesses

      and performed investigation for the defense. Id. at 9-10, 30-31. McCord also

      stated he did not depose all witnesses in a criminal defense case because there

      can be disadvantages to doing so such as locking the witness into certain

      testimony. Id. at 29. Alvies asked McCord why he did not object to the pre-

      sentence report during sentencing, and McCord responded that he and Alvies

      had reviewed it and “didn’t have anything objectionable at the time and in fact .




      1
          542 U.S. 296 (2004).
      2
          530 U.S. 466 (2000).


      Court of Appeals of Indiana | Memorandum Decision 33A04-1510-PC-1691 | October 27, 2016   Page 6 of 22
      . . [had] hired our own sentencing and mitigation specialist who prepared our

      own Pre-Sentence Investigation Report that we provided to the Court.” Id. at

      26. McCord also testified that he did not recall some of the details of his

      representation of Alvies due to the lengthy time since the trial.


[7]   At the conclusion of the post-conviction relief hearing, the post-conviction court

      took the matter under advisement. On August 21, 2015, the post-conviction

      court issued its order denying Alvies’s petition for post-conviction relief. Alvies

      now appeals. Additional facts will be provided as necessary.


                                     Discussion and Decision
[8]   Post-conviction proceedings do not afford the petitioner an opportunity for a

      super appeal, but rather, provide the opportunity to raise issues that were

      unknown or unavailable at the time of the original trial or the direct appeal.

      Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164

      (2002); Wieland v. State, 848 N.E.2d 679, 681 (Ind. Ct. App. 2006), trans. denied,

      cert. denied, 549 U.S. 1038 (2006). The proceedings do not substitute for a direct

      appeal and provide only a narrow remedy for subsequent collateral challenges

      to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The petitioner for post-

      conviction relief bears the burden of proving the grounds by a preponderance of

      the evidence. Ind. Post-Conviction Rule 1(5).


[9]   When a petitioner appeals a denial of post-conviction relief, he appeals a

      negative judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007),

      trans. denied. The petitioner must establish that the evidence as a whole

      Court of Appeals of Indiana | Memorandum Decision 33A04-1510-PC-1691 | October 27, 2016   Page 7 of 22
       unmistakably and unerringly leads to a conclusion contrary to that of the post-

       conviction court. Id. We will disturb a post-conviction court’s decision as

       being contrary to law only where the evidence is without conflict and leads to

       but one conclusion, and the post-conviction court has reached the opposite

       conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans.

       denied. The post-conviction court is the sole judge of the weight of the evidence

       and the credibility of witnesses. Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct.

       App. 2008), trans. denied. We accept the post-conviction court’s findings of fact

       unless they are clearly erroneous, and no deference is given to its conclusions of

       law. Fisher, 878 N.E.2d at 463.


                        I. Ineffective Assistance of Trial Counsel
[10]   When evaluating a claim of ineffective assistance of counsel, we apply the two-

       part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Perry v.

       State, 904 N.E.2d 302, 308 (Ind. Ct. App. 2009) (citing Pinkins v. State, 799

       N.E.2d 1079, 1093 (Ind. Ct. App. 2003), trans. denied), trans. denied. First, the

       defendant must show that counsel’s performance was deficient. Id. This

       requires a showing that counsel’s representation fell below an objective

       standard of reasonableness and that the errors were so serious that they resulted

       in a denial of the right to counsel guaranteed to the defendant by the Sixth and

       Fourteenth Amendments. Id. Second, the defendant must show that the

       deficient performance resulted in prejudice. Id. To establish prejudice, a

       defendant must show that there is a reasonable probability that but for counsel’s

       unprofessional errors, the result of the proceeding would have been different.

       Court of Appeals of Indiana | Memorandum Decision 33A04-1510-PC-1691 | October 27, 2016   Page 8 of 22
       Id. A reasonable probability is a probability sufficient to undermine confidence

       in the outcome. Id.


[11]   Further, counsel’s performance is presumed effective, and a defendant must

       offer strong and convincing evidence to overcome this presumption. Williams v.

       State, 771 N.E.2d 70, 73 (Ind. 2002). We will not lightly speculate as to what

       may or may not have been an advantageous trial strategy, as counsel should be

       given deference in choosing a trial strategy that, at the time and under the

       circumstances, seems best. Perry, 904 N.E.2d at 308 (citing Whitener v. State,

       696 N.E.2d 40, 42 (Ind. 1998)). Isolated omissions or errors, poor strategy, or

       bad tactics do not necessarily render representation ineffective. Shanabarger v.

       State, 846 N.E.2d 702, 708 (Ind. Ct. App. 2006), trans. denied. The two prongs

       of the Strickland test are separate and independent inquiries. Manzano v. State,

       12 N.E.3d 321, 325 (Ind. Ct. App. 2014), trans. denied, cert. denied, 135 S. Ct.

       2376 (2015). “Thus, ‘[i]f it is easier to dispose of an ineffectiveness claim on the

       ground of lack of sufficient prejudice . . . that course should be followed.’” Id.

       (quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001), cert. denied, 537

       U.S. 839 (2002)).


[12]   Alvies argues that the post-conviction court erred in denying his petition for

       post-conviction relief because he received ineffective assistance of trial counsel

       for several reasons. He argues that his trial counsel was ineffective for failing to

       depose an eyewitness who saw a suspect going into Davis’s home twenty to

       thirty minutes prior to the police arriving and for failing to investigate alibi

       witnesses. Alvies also claims his trial counsel was ineffective for failing to
       Court of Appeals of Indiana | Memorandum Decision 33A04-1510-PC-1691 | October 27, 2016   Page 9 of 22
       object to certain evidence Alvies alleges was tampered with and for failing to

       hire an independent firearms examiner to examine the firearms admitted into

       evidence in this case. Lastly, Alvies argues that his trial counsel was ineffective

       because he failed to object to the pre-sentence investigation report.


                                          A. Deposition of Witness

[13]   Alvies first asserts that his trial counsel, McCord, was ineffective for failing to

       depose Deborah Shelley (“Shelley”), who was Davis’s neighbor and, prior to

       trial, gave a statement to the police in which she described observing an

       individual, later identified as Alvies, entering Davis’s residence and wearing a

       green Army jacket and being “medium to tall and thin.” Trial Tr. at 956. At

       trial, Shelley only testified that Alvies was wearing a green Army jacket when

       she observed him enter Davis’s residence twenty to thirty minutes before the

       police arrived at the scene. Id. at 948-49. On cross-examination, Shelley

       explained that the reason she described the individual she saw in more detail on

       the day of the murders was because she “probably” remembered the occurrence

       more accurately on the day it happened. Id. at 956-57.


[14]   At the post-conviction hearing, McCord testified that he did not generally

       depose all witnesses in a criminal defense case because there can be

       disadvantages and advantages to doing so, and he did not want to lock the

       witnesses into certain testimony. Id. at 29. He further testified that his decision

       whether or not to depose Shelley would have been a trial strategy. Id.

       “Counsel’s failure to interview or depose State’s witnesses does not, standing

       alone, show deficient performance.” Williams, 771 N.E.2d at 74 (Ind. 2002)
       Court of Appeals of Indiana | Memorandum Decision 33A04-1510-PC-1691 | October 27, 2016   Page 10 of 22
       (citing Williams v. State, 724 N.E.2d 1070, 1076 (Ind. 2000), cert. denied, 531

       U.S. 1128 (2001)). “The question is what additional information may have

       been gained from further investigation and how the absence of that information

       prejudiced his case.” Id. At trial, McCord was able to question Shelley about

       her prior inconsistent statement to the police, and Alvies has not shown how

       deposing Shelley prior to trial would have resulted in additional opportunity to

       impeach Shelley. Additionally, at trial, Muscar, Alvies then-girlfriend, and two

       fellow inmates testified that Alvies had admitted to them that he had killed the

       victims. Trial Tr. at 485-87, 968-72, 1082-83. Alvies has not shown how he

       was prejudiced by McCord’s strategic decision to not depose Shelley. We,

       therefore, conclude that Alvies has not shown that McCord was ineffective for a

       failure to depose Shelley.


                                              B. Alibi Witnesses

[15]   Alvies contends that McCord was ineffective for failing to investigate alibi

       witnesses. Alvies asserts that there were witnesses at “Tweedy’s auto shop”

       that would have provided an alibi for him on the day of the murders and that

       McCord should have investigated these witnesses. Appellant’s Br. at 10. At the

       post-conviction hearing, McCord, when asked by Alvies why McCord did not

       use an alibi defense, testified, “We didn’t use an alibi defense because you

       didn’t have any alibi and when we discussed it we didn’t have anything listed.”

       P-CR Tr. at 9. McCord further testified that Alvies’s first attorney did not

       inform McCord that Alvies had mentioned an alibi to him either. Id. At the

       post-conviction hearing, Alvies admitted into evidence an Indiana State Police

       Court of Appeals of Indiana | Memorandum Decision 33A04-1510-PC-1691 | October 27, 2016   Page 11 of 22
       Property Record and Receipt showing that the State had possession of a receipt

       from Auto Zone store number 0640 dated April 3, 2000. Appellant’s App. at 89.

       Alvies asserts that this receipt supports his contention that he had an alibi for

       the time of the murders; however, the receipt was dated April 3 and the

       murders occurred on April 4.


[16]   “[E]stablishing failure to investigate as a ground for ineffective assistance of

       counsel requires going beyond the trial record to show what investigation, if

       undertaken, would have produced.” McKnight v. State, 1 N.E.3d 193, 201 (Ind.

       Ct. App. 2013). “‘This is necessary because success on the prejudice prong of

       an ineffectiveness claim requires a showing of a reasonable probability of

       affecting the result.’” Id. (quoting Woods v. State, 701 N.E.2d 1208, 1214 (Ind.

       1998), cert. denied, 528 U.S. 861 (1999)). Alvies has not demonstrated what an

       investigation into his alleged alibi would have produced and how such an

       investigation would have affected the result of his trial, especially in light of the

       testimony of three witnesses to whom he confessed to committing the murders.

       We conclude that McCord was not ineffective for not investigating any alleged

       alibi witnesses.


                                               C. Caller ID Box

[17]   Alvies argues that McCord was ineffective for failing to object to the admission

       of State’s Exhibit 3, the video depicting the caller ID box from Alvies’s

       residence. He also contends that his trial counsel failed to subpoena “the phone

       records upon which the caller ID was based.” Appellant’s Br. at 10. Alvies

       claims that the State did not lay a proper foundation for the admission of State’s
       Court of Appeals of Indiana | Memorandum Decision 33A04-1510-PC-1691 | October 27, 2016   Page 12 of 22
       Exhibit 3, which was a video showing police officers viewing the caller ID box

       from the home where Alvies was staying at the time of the murders.3 The caller

       ID box reflected two incoming calls to the residence where Alvies was staying,

       one on April 4, 2000 at 1:38 p.m. from Davis’s residence and one on April 11,

       2000 from Alvies’s phone. Trial Tr. at 400. This evidence was used to

       corroborate testimony from Wilder and Muscar that, shortly before the

       murders, Alvies was speaking on the phone to Davis and told Davis he would

       meet him at Davis’s house in a few minutes. Id. at 643-45, 1071. Alvies asserts

       that the large gap between calls on the caller ID box brings into question the

       accuracy of the evidence and creates an inference that the evidence was

       tampered with.


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

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

       that he was prejudiced by counsel’s failure to make an objection. McKnight, 1

       N.E.3d at 202 (citing Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001), cert.

       denied, 535 U.S. 1019 (2002)). Alvies has not presented any evidence to support

       his contention that the caller ID box was tampered with and what additional

       investigation McCord could have done to affect the admission of the evidence. 4




       3
         At the time of the trial, this video was the only evidence of the caller ID screen of the phone because the
       information on the actual phone was lost when the battery on the phone died, and the State was not able to
       find photographs taken of the caller ID screen. Trial Tr. at 396, 399-400.
       4
        At the post-conviction hearing, Alvies introduced records from AT&T that he subpoenaed; however,
       AT&T showed no records were found responsive to his request.

       Court of Appeals of Indiana | Memorandum Decision 33A04-1510-PC-1691 | October 27, 2016          Page 13 of 22
       Alvies has also failed to specify what objection McCord could have made

       regarding State’s Exhibit 3 and that such objection would have been sustained.

       Additionally, the evidence presented at the post-conviction hearing shows that

       the accuracy of the caller ID box was challenged during trial.


[19]   At the post-conviction relief hearing, Officer Carnes testified that neither he nor

       any other officer deleted any of the calls on the caller ID box before it was

       videotaped. P-CR Tr. at 6. Officer Carnes also stated that the caller ID box was

       not tampered with before it was videotaped and that he believed it was accurate

       as shown to the jury at trial. Id. at 7. McCord testified that he investigated the

       caller ID box and there was nothing to object to because the State had laid a

       proper foundation. Id. at 13. He further stated that he had decided to cross-

       examine Wilder, the owner of the phone, about the accuracy of the caller ID

       box and had questioned “her pretty vigorously” about whether there were other

       phone calls on it and whether it had been tampered with. Id. at 14. Alvies has

       not shown that he suffered any prejudice. We, therefore, conclude that Alvies

       has not established that McCord was ineffective for not objecting to State’s

       Exhibit 3.


                                   D. Independent Firearms Examiner

[20]   Alvies contends that McCord was ineffective for failing to hire an independent

       firearms examiner to examine the two firearms admitted as evidence at trial, but

       does not specify how an independent examiner could have aided in his defense.

       At the post-conviction hearing, McCord testified that he did not believe that an

       independent firearms examiner was necessary to the theory of defense
       Court of Appeals of Indiana | Memorandum Decision 33A04-1510-PC-1691 | October 27, 2016   Page 14 of 22
       presented at trial. P-CR Tr. at 24. McCord stated that the theory of defense was

       that Alvies was not the person who killed the victims and that the firearm that

       killed them could not be tied to Alvies because there were no fingerprints on it.

       Id. at 23-24.


[21]   Counsel should be given deference in choosing a trial strategy that, at the time

       and under the circumstances, seems best. Perry, 904 N.E.2d at 308. We believe

       it was a reasonable strategic decision for McCord not to hire an independent

       firearms examiner that would have been irrelevant to the theory of defense

       pursued at trial. Additionally, as Alvies has failed to establish how an

       independent examiner could have aided in his defense at trial, we find he has

       not shown any prejudice. McCord was not ineffective for failing to hire an

       independent firearms examiner.


                                  E. Pre-Sentence Investigation Report

[22]   Alvies claims that McCord was ineffective for failing to object to the pre-

       sentence investigation report (“the PSI”). He asserts that the PSI contained

       eight dismissed charges and nine pending charges that the trial court used to

       enhance his sentence in violation of Apprendi, which held that, other than the

       fact of a prior conviction, any fact that increases the penalty for a crime beyond

       the prescribed statutory maximum must be submitted to a jury and proven

       beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 490

       (2000). Alvies contends that he was sentenced after Apprendi was handed

       down, and McCord should have objected to the trial court using the dismissed

       and pending charges contained within the PSI to enhance his sentence.
       Court of Appeals of Indiana | Memorandum Decision 33A04-1510-PC-1691 | October 27, 2016   Page 15 of 22
[23]   Although Alvies argues that the trial court used his dismissed and pending

       charges to enhance his sentence, the evidence establishes that the trial court

       only relied on Alvies’s prior misdemeanor convictions in sentencing him. Trial

       Tr. at 1379, 1384. Relying on prior convictions is a recognized exception to the

       Apprendi doctrine. Apprendi, 530 U.S. at 490. Therefore, any objection raised

       by McCord would not have been sustained, and McCord cannot be found to be

       ineffective for not raising a meritless objection. McKnight, 1 N.E.3d at 202.


                   II. Ineffective Assistance of Appellate Counsel
[24]   The standard of review for a claim of ineffective assistance of appellate counsel

       is the same as that for trial counsel. Massey v. State, 955 N.E.2d 247, 257 (Ind.

       Ct. App. 2011) (citing Bieghler v. State, 690 N.E.2d 188, 192 (Ind. 1997), cert.

       denied, 525 U.S. 1021 (1998)). The defendant must show that counsel’s

       performance was deficient in that counsel’s representation fell below an

       objective standard of reasonableness and that but for appellate counsel’s

       deficient performance, there is a reasonable probability that the result of the

       appeal would have been different. Id. at 257-58 (citing Overstreet v. State, 877

       N.E.2d 144, 165 (Ind. 2007), cert. denied, 555 U.S. 972 (2008)).


[25]   As with ineffective assistance of trial counsel claims, if it is easier to dispose of

       an ineffectiveness claim on the ground of lack of sufficient prejudice, that

       course should be followed. Id. at 258 (citing Timberlake, 753 N.E.2d at 603).

       There are three different grounds for claims of ineffective assistance of appellate

       counsel: (1) counsel’s actions denied the defendant access to appeal; (2)


       Court of Appeals of Indiana | Memorandum Decision 33A04-1510-PC-1691 | October 27, 2016   Page 16 of 22
       counsel failed to raise issues on direct appeal resulting in waiver of those issues;

       and (3) counsel failed to present issues well. Id. (citing Wrinkles, 749 N.E.2d at

       1203).


[26]   Alvies argues that the post-conviction court erred in denying his petition for

       post-conviction relief because he received ineffective assistance of appellate

       counsel for several reasons. He claims that his appellate counsel was ineffective

       for failing to raise an issue that the trial court abused its discretion in sentencing

       him because it violated Apprendi and Blakely in its determination of aggravating

       factors used to enhance his sentence. Alvies also contends his appellate counsel

       was ineffective for failing to raise an issue regarding the admission of State’s

       Exhibit 3 and for failing to raise an issue concerning the admission of testimony

       of Muscar at trial.


                                             A. Sentencing Issue

[27]   Alvies asserts that his appellate counsel was ineffective for not challenging

       Alvies’s sentence as a violation of both Apprendi and Blakely v. Washington, 542

       U.S. 296 (2004) because certain aggravating circumstances not determined by a

       jury were used to enhance his sentence. Specifically, Alvies contends that the

       trial court erroneously used his dismissed and pending charges as aggravating

       circumstances, as well as the inference that Alvies had killed Nicholson as a

       potential witness. Alvies argues that his appellate counsel should have raised

       this sentencing issue, and if appellate counsel had, Alvies’s sentence would

       have been reduced.


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[28]   As to Alvies’s contention regarding the use of dismissed and pending charges as

       aggravating factors in violation of Apprendi and Blakely, the evidence establishes

       that the trial court only relied on Alvies’s prior convictions in sentencing him

       and not any dismissed or pending charges. Trial Tr. at 1379, 1384. Relying on

       prior convictions is a recognized exception to the Apprendi doctrine. Apprendi,

       530 U.S. at 490. Therefore, had appellate counsel raised this issue on appeal, it

       is unlikely that this court would have concluded that the trial court abused its

       discretion in sentencing Alvies or that the result of the appeal would have been

       different. Massey, 955 N.E.2d at 257-58.


[29]   As to Alvies’s challenge concerning the trial court’s use of the fact that Alvies

       killed Nicholson to eliminate a witness, the trial court mentioned it in looking

       at the nature and circumstances of the offenses Alvies committed. Trial Tr. at

       1382-83. However, although the trial court did mention the nature and

       circumstances of the offenses as an aggravating factor, we do not find that the

       Apprendi/Blakely argument was significant or obvious from the face of the

       record on appeal. Alvies’s direct appeal was decided in 2003, over a year after

       Apprendi, but about a year before Blakely. “Blakely represented a new

       interpretation of ‘statutory maximum’ than that described in Apprendi,” and

       Alvies’s appellate counsel would have been required to interpret Apprendi in a

       manner that would have predicted the United States Supreme Court’s opinion

       in Blakely. Walker v. State, 843 N.E.2d 50, 60 (Ind. Ct. App. 2006), trans. denied,

       cert. denied, 549 U.S. 1130 (2007). “‘[A]ppellate counsel cannot be held

       ineffective for failing to anticipate or effectuate a change in the existing law.’”

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       Id. (quoting Trueblood v. State, 715 N.E.2d 1242, 1258 (Ind. 1999), cert. denied,

       531 U.S. 858 (2000)). We, therefore, conclude that Alvies’s appellate counsel

       was not ineffective for not raising a sentencing issue regarding the finding of

       aggravating circumstances.


                                    B. Admission of the Caller ID Box

[30]   Alvies argues that his appellate counsel was ineffective for not appealing the

       admission of State’s Exhibit 3, the video depicting the caller ID box. He claims

       that his appellate counsel should have raised an issue regarding the admission

       of that evidence because it was altered and false as it did not accurately reflect

       the calls that came into the phone. Alvies argues the evidence was unfairly

       prejudicial and misled the jury to convict him.


[31]   Alvies has failed to specify what evidentiary rule or basis his appellate counsel

       should have raised in his appeal in an attempt to argue that State’s Exhibit 3

       was wrongfully admitted. Further, Alvies has not presented any evidence to

       support his contention that the caller ID box was tampered with, and to the

       extent he is arguing that the exhibit was inaccurate, such contention goes to the

       weight of the evidence and not to its admissibility. See McKnight, 1 N.E.3d at

       203 (“Although the defense may rebut the State’s evidence regarding accuracy,

       the question of accuracy is ultimately a question for the trier of fact.”).

       Additionally, the evidence presented at the post-conviction hearing shows that

       the accuracy of the caller ID box was challenged during trial through the

       testimony of Officer Carnes and McCord. Therefore, the jury was made aware

       of possible inaccuracy of the caller ID box and was free to weigh that evidence
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       as it saw fit. Alvies has not shown that any issue concerning the admission of

       State’s Exhibit 3 would have been successful on appeal, and we conclude that

       he has not shown ineffective assistance of appellate counsel on this issue.


                                          C. Testimony of Muscar

[32]   Alvies asserts that his appellate counsel was ineffective for not raising an issue

       regarding the veracity of the State’s witness, Muscar. Alvies argues that Muscar

       lied to the police investigating the murders and these alleged lies were used in

       the probable cause affidavit and that she then changed her statements at trial,

       admitting she previously lied. Alvies contends that Muscar was not properly

       impeached and that, if his appellate counsel had raised the issue of her

       dishonesty on appeal, the outcome of his appeal would have been different.


[33]   The evidence at trial shows that the inaccuracies and inconsistencies in

       Muscar’s testimony were explored at trial and presented to the jury. Trial Tr. at

       1086-1011, 1114. Generally, issues of witness credibility are not available for

       review on appeal. Moore v. State, 27 N.E.3d 749, 754 (Ind. 2015). However, the

       incredible dubiosity rule, in limited circumstances, allows the Court to impinge

       upon a jury’s responsibility to judge the credibility of the witnesses only when

       confronted with inherently improbable testimony. Id. The incredible dubiosity

       rule is only able to be applied “‘where a sole witness presents inherently

       contradictory testimony which is equivocal or the result of coercion and there is

       a complete lack of circumstantial evidence of the appellant’s guilt.’” Id. at 755

       (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994)). Here, however,

       Muscar was not the sole witness against Alvies; the State also presented the
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       testimony of his two fellow inmates, who testified that Alvies admitted to

       killing the victims. Trial Tr. at 485-87, 968-72. Alvies’s appellate counsel was

       not ineffective for not raising a meritless issue on appeal. Massey, 955 N.E.2d at

       257-58.


                                              III. Sentencing
[34]   Post-conviction proceedings are civil proceedings that provide defendants the

       opportunity to raise issues not known or available at the time of the original

       trial or direct appeal. Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007)

       (citing Conner v. State, 711 N.E.2d 1238, 1244 (Ind. 1999), cert. denied, 531 U.S.

       829 (2000)), cert. denied, 552 U.S. 1314 (2008). Thus, if an issue was known and

       available but not raised on direct appeal, the issue is procedurally foreclosed.

       Id. (citing Timberlake, 753 N.E.2d at 597). “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.


[35]   Alvies argues that the trial court abused its discretion in sentencing. He

       contends that the trial court failed to find mitigating circumstances that were

       apparent from the record and recommended by the probation department in the

       PSI. Alvies further asserts that the trial court erred in finding several

       aggravating circumstance in violation of Apprendi and Blakely. To the extent

       that Alvies argues that the trial court abused its discretion in not finding certain

       mitigating factors, this is a freestanding issue that was known and available at


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       the time of his direct appeal. Therefore, the issue had to be raised on direct

       appeal, and because it was not, it was procedurally foreclosed and may not be

       raised now for the first time on post-conviction relief. Stephenson, 864 N.E.2d at

       1028. We conclude that Alvies’s freestanding claims of error are foreclosed

       from our review on appeal.


[36]   Alvies also argues that the trial court erroneously used aggravating factors to

       enhance his sentence in violation of Apprendi and Blakely, which is essentially an

       argument that those cases should have retroactive application. Our Supreme

       Court has already addressed this issue and determined that Blakely does not

       apply retroactively to post-conviction appeals because such appeals are neither

       “pending on direct review” nor “not yet final.” Gutermuth v. State, 868 N.E.2d

       427, 433-35 (Ind. 2007) (determining that defendant’s case is final for Blakely

       purposes when time for filing direct appeal has expired). The Gutermuth Court

       reasoned that this result “recognizes the importance of finality without

       sacrificing fairness.” Id. at 434. We, therefore, conclude that the post-

       conviction court did not err in denying Alvies’s petition for post-conviction

       relief.


[37]   Affirmed.


[38]   May, J., and Crone, J., concur.




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