MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Sep 16 2016, 7:01 am

regarded as precedent or cited before any                                 CLERK
                                                                      Indiana Supreme Court
court except for the purpose of establishing                             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
Nathan Hummel                                            Gregory F. Zoeller
Michigan City, Indiana                                   Attorney General of Indiana

                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Nathan Hummel,                                           September 16, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         75A03-1602-PC-278
        v.                                               Appeal from the Starke Circuit
                                                         Court
State of Indiana,                                        The Honorable Kim Hall, Judge
Appellee-Respondent.                                     Trial Court Cause No.
                                                         75C01-1508-PC-2



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 75A03-1602-PC-278 | September 16, 2016      Page 1 of 5
                                       Statement of the Case
[1]   Nathan Hummel was convicted of dealing in a narcotic drug, as a Class B

      felony; two counts of robbery, as Class B felonies; and disarming an officer, as a

      Class C felony, pursuant to a plea agreement. Hummel subsequently petitioned

      for post-conviction relief, which the post-conviction court denied. He now

      appeals, challenging the post-conviction court’s judgment, and he raises a single

      issue for our review, namely, whether he was denied the effective assistance of

      trial counsel. We affirm.


                                 Facts and Procedural History
[2]   In December 2011, the State charged Hummel with six felony counts related to

      his participation in an armed robbery of a CVS pharmacy. In particular, the

      State alleged that Hummel: jumped over the counter in the pharmacy and,

      armed with a knife, took controlled substances from the presence of the

      pharmacist and stole cartons of cigarettes; possessed with intent to deliver

      morphine, methadone, oxycodone, oxycontin, Ritalin, Fentora, Nucynta, and

      Avinza; and attempted to take a police officer’s gun. During a guilty plea

      hearing in April 2012, Hummel pleaded guilty to dealing in a narcotic drug, as

      a Class B felony; two counts of robbery, as Class B felonies; and disarming an

      officer, as a Class C felony. In exchange for Hummel’s plea, the State reduced

      the dealing count from a Class A felony to a Class B felony and dismissed two

      of the felony counts. And the terms of the plea agreement provided for an

      aggregate sentence of twenty-five years executed. The trial court entered



      Court of Appeals of Indiana | Memorandum Decision 75A03-1602-PC-278 | September 16, 2016   Page 2 of 5
      judgment of conviction and sentence according to the terms of the plea

      agreement.


[3]   On August 18, 2015, Hummel filed a pro se petition for post-conviction relief.

      In that petition, Hummel alleged that his “plea of guilty was not knowingly and

      voluntarily entered into due to receiving ineffective assistance of trial

      [counsel].” Appellant’s App. at 36. Following a hearing, the post-conviction

      court concluded that Hummel “freely and voluntarily, after advise [sic] of

      counsel who was not ineffective, pled guilty under the terms of the Plea

      Agreement.” Appellant’s Br. at 23.1 This appeal ensued.


                                      Discussion and Decision
[4]   Hummel contends that his plea was not knowing, intelligent, and voluntary

      because he received ineffective assistance of trial counsel.


              To prevail on a claim of ineffective assistance of counsel, a
              petitioner must demonstrate both that his counsel’s performance
              was deficient and that the petitioner was prejudiced by the
              deficient performance. Strickland v. Washington, 466 U.S. 668,
              687 (1984). However, failure to satisfy either prong will cause
              the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind. 2002).
              “[I]f we can dismiss an ineffective assistance claim on the
              prejudice prong, we need not address whether counsel’s
              performance was deficient.” Lee v. State, 892 N.E.2d 1231, 1233
              (Ind. 2008).




      1
       Hummel did not include the post-conviction court’s order in the appendix on appeal. See Ind. Appellate
      Rule 50(A)(2)(b).

      Court of Appeals of Indiana | Memorandum Decision 75A03-1602-PC-278 | September 16, 2016       Page 3 of 5
        Counsel’s performance is deficient if it falls below an objective
        standard of reasonableness based on prevailing professional
        norms. French, 778 N.E.2d at 824. Counsel is afforded
        considerable discretion in choosing strategy and tactics, and we
        will accord those decisions deference. Timberlake v. State, 753
        N.E.2d 591, 603 (Ind. 2001). A strong presumption arises that
        counsel rendered adequate assistance and made all significant
        decisions in the exercise of reasonable professional judgment. Id.
        To meet the appropriate test for prejudice, the petitioner must
        show that there is a reasonable probability that, but for counsel’s
        unprofessional errors, the result of the proceeding would have
        been different. Id. A reasonable probability is a probability
        sufficient to undermine confidence in the outcome. Perez v. State,
        748 N.E.2d 853, 854 (Ind. 2001).

        There are two different types of ineffective assistance of counsel
        claims that can be made in regards to guilty pleas: (1) failure to
        advise the defendant on an issue that impairs or overlooks a
        defense and (2) an incorrect advisement of penal consequences.
        Segura v. State, 749 N.E.2d 496, 500 (Ind. 2001); see also Smith v.
        State, 770 N.E.2d 290, 295 (Ind. 2002). . . . The specific standard
        for showing prejudice on [the first type of claim] was articulated
        by our Supreme Court in Segura and requires:

                 a showing of a reasonable probability of success at
                 trial if the alleged error is one that would have
                 affected a defense. . . . A new trial is of course
                 necessary if an unreliable plea has been accepted.
                 But its costs should not be imposed needlessly, and
                 that would be the result if the petitioner cannot show
                 a reasonable probability that the ultimate result-
                 conviction-would not have occurred despite counsel’s
                 error as to a defense.

        749 N.E.2d at 503.



Court of Appeals of Indiana | Memorandum Decision 75A03-1602-PC-278 | September 16, 2016   Page 4 of 5
      McCullough v. State, 987 N.E.2d 1173, 1176-77 (Ind. Ct. App. 2013).


[5]   We agree with the State that Hummel has waived this issue for review on

      appeal for failure to present a cogent argument in support of his contentions.

      See Ind. Appellate Rule 46(A)(8)(a). While Hummel sets out the applicable

      standard of review and cites case law relevant to his burden to prove ineffective

      assistance of counsel in general, he does not state with any specificity how his

      trial counsel’s performance was allegedly deficient or direct us to any evidence

      in the record to support his bare contentions. See id. For instance, in his brief

      on appeal, Hummel states that his trial counsel made “unprofessional errors,”

      but he does not describe those alleged errors or direct us to any part of the

      record to support that allegation. Appellant’s Br. at 15. And Hummel avers

      that his trial counsel did not “properly advise [him] on the offen[s]e of dealing

      in a narcotic” drug, but he does not explain what his trial counsel’s advice was

      or how it was improper. Id. at 16. Because of the lack of cogent argument and

      citation to the record or relevant authority, Hummel has waived his ineffective

      assistance of trial counsel claim for our review.


[6]   Affirmed.


      Vaidik, C.J., and Baker, J., concur.




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