 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,                  Nov 18 2014, 9:47 am
 collateral estoppel, or the law of the case.




APPELLANT PRO SE:                                 ATTORNEYS FOR APPELLEE:
JACK E. PRIMMER                                   GREGORY F. ZOELLER
Pendleton, Indiana                                Attorney General of Indiana

                                                  ERIC P. BABBS
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

JACK E. PRIMMER,                                  )
                                                  )
       Appellant-Petitioner,                      )
                                                  )
           vs.                                    )        No. 79A04-1308-PC-394
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Respondent.                       )

                 APPEAL FROM THE TIPPECANOE SUPERIOR COURT 5
                          The Honorable Les A. Meade, Judge
                             Cause No. 70D05-1304-PC-1


                                       November 18, 2014
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
          Jack E. Primmer (“Primmer”) filed a petition for post-conviction relief in

Tippecanoe Superior Court, which the court denied. Primmer appeals pro se and presents

three issues for our review, which we restate as:

          I.      Whether Primmer was provided with the ineffective assistance of trial
                  counsel;

          II.     Whether Primmer’s rights under the Fourth and Fifth Amendments to the
                  United States Constitution were violated; and

          III.    Whether the prosecuting attorney committed misconduct.

          We affirm.

                                   Facts and Procedural History

          At the time relevant to this appeal, Primmer was a convicted sex offender who had

been released on parole in November 2004.1 The terms of Primmer’s parole included a

prohibition against contact with children. Nevertheless, Primmer began a relationship

with C.B., who had four young sons. One of these sons, eleven-year-old J.B., had a

learning disability.         At one point, Primmer was helping J.B. with a bath and

inappropriately touched J.B. Specifically, Primmer later admitted that he had “washed

[J.B.] a little too long.” Appellant’s App. pp. 37-38. On another occasion, Primmer

fondled J.B.’s penis when the boy was in bed with Primmer. Primmer later admitted that

he was sexually aroused by these incidents.




1
    Primmer had been convicted of child molesting after touching a boy’s penis.
2
  Heartford House is “a child advocacy center where alleged child abuse victims are interviewed.” Cox v.
State, 937 N.E.2d 874, 876 (Ind. Ct. App. 2010).
3
  This section provides in relevant part that “The court may sentence a person found to be a repeat sexual
offender to an additional fixed term that is the advisory sentence for the underlying offense. However,
                                                     2
the additional sentence may not exceed ten (10) years.”     I.C. § 35-50-2-14(f). Because Primmer was
       Primmer’s behavior toward J.B. was eventually reported to the authorities. As a

result, J.B. was interviewed at home by a caseworker for the Department of Child

Services. J.B. told the caseworker that he did not like it when Primmer took showers

with him. The caseworker then set up another interview with J.B. at Heartford House,2

and J.B. was interviewed by an investigator from the prosecutor’s office. During this

interview, J.B. stated that Primmer had touched his penis when the two were in bed.

       As a result of these interviews, two detectives from the Lafayette Police

Department went to Primmer’s place of employment to speak with him. Primmer told

the detectives that he knew they wanted to talk with him and had planned to go to the

police station after work. The detectives indicated that they preferred to speak with

Primmer then and offered him a ride to the police station. Primmer declined and drove

himself to the police station.

       During the first portion of the interview, the detectives told Primmer that he was

free to leave, and Primmer acknowledged that he was there voluntarily. Primmer stated

that J.B. was like a son to him and generally denied touching J.B. improperly. He

admitted that he had helped J.B. bathe and had showered with him once to help wash

J.B.’s hair. He also admitted that J.B. had gotten into his bed one night, but denied

intentionally touching J.B.’s penis. When Primmer indicated that he needed to go back to

work, the detectives ended the interview. In the meantime however, Primmer’s parole

officer had secured a warrant for Primmer’s arrest for violating the terms of his parole.


2
  Heartford House is “a child advocacy center where alleged child abuse victims are interviewed.” Cox v.
State, 937 N.E.2d 874, 876 (Ind. Ct. App. 2010).
                                                  3
As Primmer was leaving, but before he actually left the police station, his parole officer

took him into custody. Primmer then asked to speak with his parole officer alone, and the

detectives left the room. Primmer admitted to his parole officer that he had washed J.B.’s

penis “for a prolonged period,” and admitted to fondling J.B.’s penis in bed.

       The parole officer then informed the detectives that Primmer had made

incriminating statements, at which point they advised Primmer of his Miranda rights.

Primmer acknowledged his rights and signed a waiver-of-rights form. During this second

portion of the interview, Primmer admitted to fondling J.B.’s penis over his underwear

when J.B. was in Primmer’s bed and also admitted that he “washed [J.B.] a little too long

with a [wash] rag.” Appellant’s App. p. 37.

       On April 22, 2005, the State filed charges against Primmer for child molesting and

for being a repeat sexual offender. The State later moved to add an additional charge of

child molesting and a charge of obstruction of justice. Primmer was represented during

the trial phase by private counsel. Prior to trial, Primmer’s trial counsel filed a motion to

suppress Primmer’s statements to the police, but the trial court denied the motion. Also

prior to trial, the trial court conducted a child hearsay hearing. At this hearing, J.B.

testified that he had told the truth to the investigators at Heartford House and indicated

that he knew the difference between the truth and a lie. The prosecutor also indicated

that J.B. was prepared to testify at trial.

       As explained in our opinion on Primmer’s direct appeal, the following events then

occurred:



                                              4
On February 6, 2006, the day before Primmer’s jury trial was to be held,
Primmer entered into a plea agreement under which he was to plead guilty
to child molesting and to being a repeat sexual offender in exchange for an
agreement that the executed portion of his sentence for these two charges
would not exceed nine years. However, at the plea agreement hearing, the
following exchange took place:
   By the Court: Has anybody forced or threatened to place you or
   anybody else in fear to get you to plead guilty today?
   By Mr. Primmer: Your Honor, uh, I believe another person was
   placed in fear to get me to sign the Plea Agreement, Your Honor.
   By the Court: Who, who put you in fear?
   By Mr. Primmer: Uh, no, it was not me that was put in fear. It was
   another person.
   By the Court: I’m asking you, has anybody put you in fear, and you
   say no—
   By Mr. Primmer: In a sense, yes, they have, sir.
Transcript at 97-98. The trial court then stopped the hearing and ordered
that the case proceed to trial the following day. The next day, Primmer
entered into another plea agreement under which he was to plead guilty to
child molesting and to being a repeat sexual offender, this time in exchange
for an agreement that the executed portion of his sentence would not exceed
twelve years. The trial court held another plea agreement hearing, at which
Primmer indicated that no one was put into fear in order to convince him to
plead guilty. Primmer stated:
   Yesterday was just a confusing day. It just happened all so quick.
   I’m sorry it had to come down to twelve years, but it was just, it
   happened too quick and I didn’t have a chance to ... talk to my
   family or anything about it.
Tr. at 102. The trial court accepted Primmer’s plea and scheduled a
sentencing hearing.
Prior to the sentencing hearing, Primmer sent the trial court a letter
indicating he had not in fact committed the crimes to which he had pled
guilty. Primmer stated he pled guilty because the State had coerced the
child whom Primmer was accused of molesting and the child’s mother into
agreeing to testify falsely against Primmer, and he did not want them to
have to go through the experience of lying on the stand. At the sentencing
hearing, Primmer again proclaimed his innocence stating:
   “I signed the Plea Agreement because of harassment and threats
   made against [the mother and child] by the prosecution and the
                                     5
          people working for her. That’s why I signed the Plea Agreement,
          Your Honor. I did not commit this crime. I signed the Plea
          Agreement because my father told me to to [sic] get it over with and
          to keep [the mother and child] from having—pardon my
          expression—the hell harassed out of ‘em like they have been this
          past year, Your Honor.”
       Tr. at 121. Primmer later stated, “I mean I don’t, I really don’t think this is
       fair, Your Honor, because, like I said, I didn’t commit this crime,” and that
       “I know I pled guilty, Your Honor. And I’ve explained why I’ve pled
       guilty.” Id. at 123.
       The trial court then sentenced Primmer to the statutory maximum of eight
       years for Class C felony child molesting. The trial court sentenced
       Primmer to an additional ten years pursuant to the repeat sexual offender
       statute. Of the aggregate eighteen-year sentence, the trial court suspended
       six years and ordered that Primmer serve twelve years.

Primmer v. State, 857 N.E.2d 11, 13-14 (Ind. Ct. App. 2006) (footnotes omitted).

       On appeal, Primmer claimed that the trial court should have treated his statements

at the sentencing hearing as a motion to withdraw his guilty plea and should have granted

that motion. Noting that Primmer never filed a motion, much less a written, verified

motion, to withdraw his guilty plea, we held that the trial court did not abuse its

discretion in not withdrawing Primmer’s guilty plea before sentencing. Id. at 15. We

also noted that, to the extent that Primmer’s arguments attacked the voluntariness of his

plea, this issue was not available on direct appeal and should instead be presented in a

petition for post-conviction relief. See id. (citing Jones v. State, 675 N.E.2d 1084, 1090

(Ind. 1996)).

       With regard to Primmer’s appeal of his sentence, we first noted that the trial court

did not abuse its discretion in failing to consider Primmer’s guilty plea as a significant




                                             6
mitigating factor. Id. at 16-17. However, we also held that the trial court had imposed an

improper sentence enhancement under the repeat sexual offender statute:

        At the sentencing hearing, the prosecutor incorrectly informed the court
        that the maximum penalty allowed for the repeat sexual offender
        enhancement was twelve years. Tr. at 175. The trial court stated at the
        sentencing hearing that it would sentence Primmer to twelve years for the
        enhancement. Tr. at 207. Before the trial court issued its sentencing order,
        it apparently reconsidered, and instead sentenced Primmer to ten years
        under the enhancement. The repeat sexual offender statute authorizes
        neither the twelve-year sentence identified at the sentencing hearing nor the
        ten-year sentence actually imposed. Therefore, Primmer’s sentence is
        illegal.

Id. at 18 (footnotes omitted). We remanded with instructions that the trial court impose

the sentence enhancement authorized by statute, i.e. four years. Id. (citing Ind. Code §

35-50-2-14).3

        On May 5, 2009, Primmer filed a pro se motion for post-conviction relief. The

post-conviction court held a hearing on Primmer’s petition on September 25, 2012.

Although Primmer failed to subpoena any witnesses, Primmer’s trial counsel and the

investigating detectives did appear and testify. The post-conviction court issued findings

of fact and conclusions of law denying Primmer’s petition on July 18, 2013. Primmer

now appeals.

                              Post-Conviction Standard of Review

        Post-conviction proceedings are not “super appeals” through which convicted

persons can raise issues they failed to raise at trial or on direct appeal. McCary v. State,
3
  This section provides in relevant part that “The court may sentence a person found to be a repeat sexual
offender to an additional fixed term that is the advisory sentence for the underlying offense. However,
the additional sentence may not exceed ten (10) years.” I.C. § 35-50-2-14(f). Because Primmer was
convicted of a Class C felony, the proper sentence enhancement was four years—the advisory sentence
for a Class C felony. See Ind. Code § 35-50-2-6.
                                                    7
761 N.E.2d 389, 391 (Ind. 2002). Rather, post-conviction proceedings afford petitioners

a limited opportunity to raise issues that were unavailable or unknown at trial and on

direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). A post-conviction

petitioner bears the burden of establishing grounds for relief by a preponderance of the

evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). On appeal from the denial

of post-conviction relief, the petitioner stands in the position of one appealing from a

negative judgment. Id. To prevail on appeal from the denial of post-conviction relief, the

petitioner must show that the evidence as a whole leads unerringly and unmistakably to a

conclusion opposite that reached by the post-conviction court. Id. at 643-44.

      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 cannot affirm the

judgment on any legal basis, but rather, must determine if the court’s findings are

sufficient to support its judgment. Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App.

2011), aff’d of reh’g, 947 N.E.2d 962. Although we do not defer to the post-conviction

court’s legal conclusions, we review the post-conviction court’s factual findings under a

clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence or judge

the credibility of witnesses, and we will consider only the probative evidence and

reasonable inferences flowing therefrom that support the post-conviction court’s decision.

Id.

                       I. Ineffective Assistance of Trial Counsel

      Primmer claims that the post-conviction court clearly erred in determining that his

trial counsel was not ineffective. In Timberlake v. State, 753 N.E.2d 591 (Ind. 2001), our

                                            8
supreme court summarized the law regarding claims of ineffective assistance of trial

counsel, writing:

              A defendant claiming a violation of the right to effective assistance
       of counsel must establish the two components set forth in Strickland v.
       Washington, 466 U.S. 668 (1984). First, the defendant must show that
       counsel’s performance was deficient. 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 the defendant by the Sixth Amendment. Second, the
       defendant must show that the deficient performance prejudiced the defense.
       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. A reasonable probability is a
       probability sufficient to undermine confidence in the outcome.
               Counsel is afforded considerable discretion in choosing strategy and
       tactics, and we will accord those decisions deference.             A strong
       presumption arises that counsel rendered adequate assistance and made all
       significant decisions in the exercise of reasonable professional judgment.
       The Strickland Court recognized that even the finest, most experienced
       criminal defense attorneys may not agree on the ideal strategy or the most
       effective way to represent a client. Isolated mistakes, poor strategy,
       inexperience, and instances of bad judgment do not necessarily render
       representation ineffective. The two prongs of the Strickland test are
       separate and independent inquiries. 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. at 603 (Ind. 2001) (citations and quotations omitted).

       Claims of ineffective assistance of trial counsel following a guilty plea require

more specific considerations. With regard to guilty pleas, there are two general types of

claims of ineffective assistance of trial counsel: (1) the failure to advise the defendant on

an issue that impairs or overlooks a defense, and (2) an incorrect advisement of penal

consequences. Manzano v. State, 12 N.E.3d 321, 326 (Ind. Ct. App. 2014), trans. denied




                                             9
(citing Segura v. State, 749 N.E.2d 496, 500 (Ind. 2001). In Segura, our supreme court

wrote:

         We conclude that Hill [v. Lockhart, 474 U.S. 52 (1985)] standing alone
         requires a showing of a reasonable probability of success at trial if the
         alleged error is one that would have affected a defense. This result seems
         preferable for several reasons. In [State v.] Van Cleave, [674 N.E.2d 1293
         (Ind. 1996),] we identified sound reasons for requiring that a petitioner who
         pleads guilty show a reasonable probability of acquittal in order to prevail
         in a postconviction attack on the conviction based on a claim of ineffective
         assistance of counsel. As Hill emphasized, the State has an interest in the
         finality of guilty pleas. This is in part grounded in the cost of a new trial,
         and the demands on judicial resources that are imposed by revisiting the
         guilty plea, but also in concerns about the toll a retrial exacts from victims
         and witnesses who are required to revisit the crime years later.

Segura, 749 N.E.2d at 503 (citations omitted).

         Therefore, our supreme court concluded that “[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.” Id.4

         It is important to note that the decision to enter a guilty plea is largely the

defendant’s decision, and is therefore different from the tactical or investigatory steps

that are the bases of most claims of ineffective assistance of counsel. Manzano, 12

N.E.3d at 326. Indeed, “‘[t]he guilty plea, virtually uniquely among all procedural steps,

4
  As we noted in Manzano, the federal Seventh Circuit Court of Appeals disagrees with our supreme
court’s interpretation of Hill, and concluded that “a person who contends that ineffective assistance of
counsel induced him to plead guilty establishes ‘prejudice’ by demonstrating that, but for counsel’s errors,
he would have insisted on a trial.” Manzano, 12 N.E.3d at 326 n.1 (citing Payne v. Brown, 662 F.3d 825,
828 (7th Cir. 2011)). Because the Seventh Circuit’s decisions on federal law are not binding on us, we
apply the standard established by our supreme court in Segura. Id. (citing Jackson v. State, 830 N.E.2d
920, 921 (Ind. Ct. App. 2005)).
                                                    10
involves the judgment of the defendant as well as his attorney[.]’” Id. at 326-27 (quoting

State v. Van Cleave, 674 N.E.2d 1293, 1301 (Ind. 1996)).

       [T]he decision to plead is often strongly if not overwhelmingly influenced
       by the attorney’s advice. But it is equally true that the defendant
       appreciates the significance of the plea and is uniquely able to evaluate its
       factual accuracy. The requirement that the court satisfy itself as to the
       factual basis for the plea is designed to ensure that only guilty defendants
       plead guilty, and also that the defendant’s decision to waive a jury trial is
       an informed and reflective one. Many decisions at trial—calling a given
       witness, asserting a defense, or the extent of cross-examination—are
       difficult if not impossible for the defendant to make, and reliance on
       counsel is unavoidable. In contrast, the decision whether to plead guilty is
       ultimately the prerogative of the defendant, and the defendant alone. More
       than conjecture or hope for a lucky break at trial should be required to upset
       that action years later.

Van Cleave, 674 N.E.2d at 1301. We therefore focus our analysis on whether there is a

reasonable probability that Primmer would have succeeded at trial. See Manzano, 12

N.E.3d at 327.

       A. Child Hearsay Hearing

       Primmer first claims that his trial counsel performed deficiently at the child

hearsay hearing. Indiana Code section 35-37-4-6, known as the “protected person statute”

or the “child hearsay statute,” provides a list of certain conditions under which evidence

that would otherwise be inadmissible will be allowed in cases involving certain crimes,

including child molesting, committed against “protected persons.” J.A. v. State, 904

N.E.2d 250, 255 (Ind. Ct. App. 2009). This statute provides that a statement or videotape

that: (1) is made by a person who at the time of trial is a protected person; (2) concerns an

act that is a material element of certain listed offenses, which includes child molesting,

that was allegedly committed against the person; and (3) is not otherwise admissible into

                                             11
evidence, is admissible into evidence at trial if certain requirements are met. J.A. v. State,

904 N.E.2d 250, 255-56 (Ind. Ct. App. 2009) (citing I.C. § 35-37-4-6(d)). Among these

conditions are that the protected person testifies at trial and that the “time, content, and

circumstances of the statement or videotape provide sufficient indicia of reliability.” I.C.

§ 35-37-4-6(e). Factors to be considered in the reliability determination include the time

and circumstances of the statement, whether there was a significant opportunity for

coaching, the nature of the questioning, whether there was a motive to fabricate, use of

age-appropriate terminology, spontaneity, and repetition. J.A., 904 N.E.2d at 256.

       In the present case, Primmer claims that his trial counsel performed deficiently at

the child custody hearing by failing to point out certain issues with J.B.’s out-of-court

statements. Primmer notes that during two interviews with J.B. conducted by his trial

counsel, J.B. denied that Primmer had touched him, contradicting his earlier allegations.

He also notes that, during the interview at Heartford House, J.B. referred to the person

who had touched him only as “Jack,” and did not identify him as Jack Primmer. Primmer

also claims that J.B.’s statements during the interview at Heartford House indicated that

the fondling took place at a time when Primmer was still in prison. Primmer claims that

his trial counsel should have focused on these inconsistencies in attacking the reliability

of J.B.’s out-of-court statements.

       Primmer, however, fails to explain how these facts would have resulted in the trial

court excluding J.B.’s statements at trial. First, the trial court was informed at the child

hearsay hearing that J.B. had made statements where he denied that Primmer had

inappropriately touched him. See Appellant’s App. pp. 271-72. The State also presented

                                             12
testimony that children often have difficulty recalling the precise time when certain

events occurred. Id. at 279. We cannot say that, had Primmer’s counsel acted differently,

the trial court would have excluded J.B.’s out-of-court statements.

       More importantly, the State indicated that it would call J.B. as a witness at trial.

Accordingly, even if Primmer’s trial counsel had managed to convince the trial court to

exclude the out-of-court statements under the child hearsay statute, J.B. would have still

been able to testify at trial with regard to Primmer’s touching. Thus, Primmer has not

shown that, but for his counsel’s alleged errors, the result of a trial would have resulted in

acquittal.

       B. Suppression of Primmer’s Confession

       Primmer also claims that his trial counsel performed deficiently by failing to have

his confession to the police suppressed. We first note that Primmer’s trial counsel did

move to suppress the statements Primmer had made to the police. And the trial court’s

ruling thereon was not challenged on direct appeal. Primmer may not now directly attack

the trial court’s ruling in a petition for post-conviction relief. See McCary, 761 N.E.2d at

391; Davidson, 763 N.E.2d at 443.

       Primmer claims, however, that his trial counsel should have made certain,

allegedly more convincing arguments in support of the motion to suppress. Primmer has

not provided us with a copy of the motion to suppress filed by his trial counsel;

accordingly, we cannot say what arguments his trial counsel did or did not make in

support of the motion. The transcript of the suppression hearing is in the record before us,

and it indicates that Primmer’s trial counsel cross-examined the interrogating officers and

                                             13
elicited testimony from the interrogating officers that Primmer was in a location that was

not accessible to the public, that the police were wearing firearms during the interview,

and that Primmer was arrested once his parole officer arrived—facts supportive of

Primmer’s argument that he was in custody at the time of the first portion of the interview

prior to his arrest. Under these facts and circumstances, we cannot say that Primmer’s

trial counsel’s performance was deficient.

       And based on the circumstances surrounding the first portion of the interrogation,

we cannot say that the trial court erred in determining that Primmer was not in custody

for Miranda purposes. The detectives went to Primmer’s place of employment and asked

if he would speak with them. Primmer claims that he had no choice but to go, but he

admits that the detectives simply stated that they would “like to talk to you right now.”

Appellant’s App. p. 282. We cannot say that this amounts to a command that Primmer

had to follow.

       And Primmer was allowed to drive himself to the police station. He was also

informed that he was free to leave at any time, that he was not under arrest, and that he

did not have to talk to the detectives if he did not desire to do so. Appellant’s App. p. 11.

Under similar circumstances, we have held that a suspect was not in custody. See Laster

v. State, 918 N.E.2d 428, 433-34 (Ind. Ct. App. 2009) (holding that defendant was not in

custody where police approached defendant at home, informed him that they needed to

speak with him regarding an investigation, but did not reveal what the investigation was

about, gave him the option of driving himself to the police station, informed him that he

was not under arrest and was free to leave, and defendant was allowed to leave at the end

                                             14
of the interview); Faris v. State, 901 N.E.2d 1123 (Ind. Ct. App. 2009) (holding that

defendant was not in custody when he went to a police station for an interview regarding

an alleged molestation, was questioned by two officers for no more than two hours, was

never told that he was under arrest, and, as promised, was permitted to go home after the

interview was finished); see also Luna v. State, 788 N.E.2d 832, 834 (Ind. 2003) (holding

that a person who goes voluntarily for a police interview, receives assurances that he is

not under arrest, and leaves after the interview is complete is not in custody simply by

virtue of an energetic interrogation).

       Primmer claims that he was in custody because, he claims, he was not allowed to

leave and was arrested after the first portion of the interview was completed. The

detectives, however, testified that Primmer was free to leave and did not corroborate

Primmer’s claims that he was not allowed to leave. See Appellant’s App. pp. 287, 293.

Moreover, Primmer was not arrested by the interrogating detectives, and was instead on

his way out of the police station when he was arrested by his recently-arrived parole

officer.

       Even if Primmer had been in custody during the first portion of his interview, the

statements he made during this portion of the interview were not incriminating. Although

he admitted that he helped J.B. shower or bathe and that J.B. had been in his bed,

Primmer adamantly denied touching J.B. in an improper manner. Thus, even if Primmer

had been in custody at the time of the first interview, and therefore should have been

advised of his Miranda rights, very little useful information was gathered by the State

during that interview. Primmer fails to adequately explain how suppression of this

                                           15
portion of his statement to the police would have resulted in an acquittal had he gone to

trial.

         With regard to the second portion of the interview, Primmer claims that he had

already confessed to his parole officer prior to being advised of his Miranda rights. But

Primmer’s parole officer testified that, upon being arrested, Primmer asked to talk to him

alone and readily admitted to fondling J.B.         There is no indication that Primmer

confessed as a result of being interrogated by the parole officer. See Appellant’s App. pp.

297-98. When the detectives were called back into the office, they advised Primmer of

his Miranda rights, and Primmer signed a waiver of his rights. Primmer then admitted to

the detectives that he had fondled J.B.

         Primmer’s contrary accounts of the interrogation were obviously not credited by

either the trial court or the post-conviction court, and we cannot reassess the credibility of

these witnesses on appeal. Despite these facts, Primmer’s trial counsel still sought to

suppress Primmer’s statement to the police, albeit unsuccessfully. And Primmer has not

persuaded us that his trial counsel could have successfully argued otherwise. Primmer

has therefore not established that, but for his counsel’s allegedly-deficient performance,

he would have been successful had he gone to trial.

         In short, Primmer has not convinced us that the post-conviction court clearly erred

in concluding that Primmer was denied the effective assistance of trial counsel.

                      II. Violation of Fourth and Fifth Amendment

         Primmer also makes broad, unsupported arguments that his rights secured by the

Fourth and Fifth Amendments to the United States Constitution were violated. With

                                             16
regard to the Fourth Amendment, he claims that his rights were violated because he was

not allowed to go outside to smoke or go to the bathroom without an escort while he was

at the police station. First, Primmer does not support these claims with any citation to

authority or cogent argument, and has therefore waived these claims. See Davis v. State,

835 N.E.2d 1102, 1113 (Ind. Ct. App. 2005) (concluding that defendant’s argument was

waived where he cited no authority in support of his position); Ind. Appellate Rule

46(A)(8)(a) (“The argument must contain the contentions of the appellant on the issues

presented, supported by cogent reasoning. Each contention must be supported by

citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal

relied on[.]”).5

        Primmer’s claims regarding the Fifth Amendment are little more than a summary

of his complaint regarding the admissibility of his statement to the police, which we

addressed above. And to the extent that Primmer attempts to present these arguments as

free-standing claims of fundamental error as opposed to claims of ineffective assistance

of trial counsel, this is improper in a petition for post-conviction. Sanders v. State, 765

N.E.2d 591, 592 (Ind. 2002).

                                  III. Prosecutorial Misconduct

        Lastly, Primmer claims that the prosecutor committed misconduct during his

sentencing hearing by incorrectly stating the law regarding his repeat sexual offender



5
   We recognize that Primmer is proceeding pro se, and we have endeavored to address the issues he
presents on the merits. But pro se litigants are held to the same standards as licensed attorneys. Whatley
v. State, 937 N.E.2d 1238, 1240 (Ind. Ct. App. 2010). Accordingly, we will not and may not become
advocates for Primmer by attempting to make his arguments for him.
                                                   17
sentence enhancement.6 As noted above, the prosecuting attorney informed the trial court

that Primmer was subject to a sentence enhancement of twelve years. As we noted in

Primmer’s direct appeal, this was incorrect as the prosecuting attorney appeared to

confuse the repeat sexual offender enhancement with the general habitual offender

enhancement. Primmer, 857 N.E.2d at 18 n.7. The actual sentence enhancement was

four years. See id.

        Again, however, Primmer presents this argument as a free-standing claim of

fundamental error, not one of ineffective assistance of trial or appellate counsel. As

noted above, for over a decade, our supreme court has held that even claims of

fundamental error are not reviewable in post-conviction proceedings when presented as

free-standing claims of error. See Sanders, 765 N.E.2d at 592 (“it [is] wrong to review

[a] fundamental error claim in a post-conviction proceeding.”).                  “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. (citing Canaan v. State, 683 N.E.2d

227, 235 n.6 (Ind. 1997)); see also Conner v. State, 829 N.E.2d 21, 25 (Ind. 2005)

(holding that where petitioner made no claim that his claim was not known or available to

him in prior proceedings, his claim that he could present claim of fundamental error in

successive post-conviction petition was “simply wrong.”).


6
  Primmer also argues that the prosecuting attorney made misleading or false statements at a hearing on
his motion to modify his sentence. However, Primmer provides us with no indication that he appealed the
denial of his motion to modify his sentence, and cannot use a petition for post-conviction relief as a
substitute for direct appeal of the denial of his motion. And as explained infra, Primmer may not bring a
free-standing claim of prosecutorial misconduct in a post-conviction petition.
                                                   18
       Here, Primmer presents his claims of prosecutorial misconduct as free-standing

claims and does not explain how his claims were “demonstrably unavailable” to him on

direct appeal. His free-standing claims of prosecutorial misconduct are therefore not

cognizable in a petition for post-conviction relief. See Sanders, 765 N.E.2d at 592.

                                        Conclusion

       The post-conviction court did not clearly err in concluding that Primmer was not

denied the effective assistance of trial counsel. And Primmer’s other claims are not

cognizable in a petition for post-conviction relief. Accordingly, the post-conviction court

did not clearly err in denying Primmer’s petition for post-conviction relief.

       Affirmed.

RILEY, J., and CRONE, J., concur.




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