MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Jul 09 2020, 9:55 am
regarded as precedent or cited before any                                  CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court


estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Curt Lowder                                               Curtis T. Hill, Jr.
Michigan City, Indiana                                    Attorney General of Indiana
                                                          George P. Sherman
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Curt Lowder,                                              July 9, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-PC-269
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Richard
Appellee-Plaintiff.                                       Hagenmaier, Commissioner
                                                          The Honorable Lisa F. Borges,
                                                          Judge
                                                          Trial Court Cause No.
                                                          49G04-1012-PC-92401



Tavitas, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020                    Page 1 of 31
                                              Case Summary
[1]   Curt Lowder, pro se, appeals the post-conviction court’s (“PC Court”) denial of

      his petition for post-conviction relief (“PCR”). We affirm.


                                                     Issues
[2]   Lowder raises three issues on appeal, which we consolidate and restate as

      follows:


              I.       Whether the PC Court erred in denying Lowder’s petition
                       for PCR.


              II.      Whether the PC Court erred in denying Lowder’s request
                       to withdraw his petition for PCR.


                                                      Facts

[3]   The facts as stated in Lowder’s direct appeal are as follows:


              In the early morning hours of December 13, 2010, Lowder and
              his girlfriend, Angela Dodson, returned to their shared residence
              after consuming alcohol at a local bar. Lowder and Dodson
              were joined by their mutual friend Troy Malone and a fourth
              individual who departed before the incident in question occurred.
              At approximately 3:00 a.m., Lowder placed a telephone call to
              his friend David Applegate in search of beer. Lowder then drove
              in his truck to the Applegate residence, accompanied by Dodson
              and Malone.


              At the Applegate residence, Dodson and Malone waited in the
              truck while Lowder went inside and spoke with Applegate and


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020   Page 2 of 31
         Applegate’s thirteen-year-old son, D.A.[ 1] During this
         conversation, Lowder received a call on his cellular telephone,
         became angry, and left the Applegate residence without taking
         any beer. Lowder testified that Dodson had accidentally called
         Lowder from the truck on her cellular telephone and that, upon
         answering this call, Lowder overheard Dodson performing oral
         sex on Malone.


         Outside the Applegate residence, Lowder approached the
         passenger side of his truck, where Malone was seated, and asked,
         “What the f*** you watching out for?” Malone replied, “What
         the f*** are you talking about?”, and Lowder claimed, “You’re
         out here f***ing around with my old lady.” Lowder then drew a
         handgun from his waistband and struck Malone in the face with
         it. Malone exited the truck, raised his hands, and backed away
         before walking off down the street.


         At some point during the incident between Lowder and Malone,
         Lowder’s handgun discharged. The bullet struck Dodson in the
         head, entering through her right eye. At trial, Lowder testified
         that the gun accidentally fired when he used it to strike Malone
         in the face. D.A. heard the gunshot from inside the Applegate
         residence and opened the front door to see Lowder standing at
         the driver side door of his truck and holding a handgun. Malone
         was seen standing at the rear of the truck with Dodson inside the
         bloody truck, slumped down, and not moving. As Malone began
         to back away from the truck, D.A. heard Lowder ask, “What the
         f*** do I do now, she’s dead?” Lowder then got into his truck
         and drove away.




1
 Although Applegate’s son was identified in the direct appeal by his initials due to his age, we will identify
him as David Applegate, Jr. (“David Jr.”) during the appeal of this PCR proceeding because he is no longer a
minor. We will identify his father, David Applegate, Sr. as “David Sr.”

Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020                      Page 3 of 31
        Lowder drove to the parking lot of a McDonald’s restaurant with
        Dodson, severely wounded and bleeding, still inside the truck.
        Lowder testified that he stopped at the restaurant in order to calm
        his nerves and to compose himself. He then drove Dodson to the
        emergency room at St. Francis Hospital. Dodson was
        pronounced dead from a gunshot wound to the head at
        approximately 5:00 a.m.


        At the hospital, Lowder told a security guard that Dodson had
        been shot at a Marathon gas station. Lowder also placed a
        telephone call to Dodson’s father and gave him the same
        explanation. Lowder similarly told the responding Indianapolis
        Metropolitan Police Department (“IMPD”) officer, Erin
        Ri[n]gham, that Dodson had been shot at a gas station. Officer
        Ringham testified that Lowder “acted more nervous than upset.”
        And another police officer testified that Lowder “seemed calm”
        and “didn’t appear to be . . . overly distraught given the
        situation.”


        Lowder was taken to the IMPD homicide office to be
        interviewed as a witness. During his interview with Detective
        Kevin Duley, Lowder changed his narrative of the shooting three
        or four times. First, Lowder maintained that Dodson had been
        shot at a Marathon gas station by an unknown assailant for an
        unknown reason. Lowder also initially claimed that he had not
        been at the Applegate residence that morning and that he drove
        Dodson directly to the hospital after she was shot. Lowder then
        claimed that Dodson was murdered at the gas station because she
        “owed some [drug] money to some Mexicans.” Next, Lowder
        claimed that he had been at the Applegate residence and believed
        Dodson and Malone were “messing around” in his truck while
        he was inside. When Lowder confronted Dodson and Malone,
        the handgun Lowder was brandishing accidentally discharged.
        At trial, Lowder admitted that he lied to police on multiple
        occasions and fabricated different accounts of the shooting.
        Lowder also testified that upon opening the door of the truck, he

Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020   Page 4 of 31
                 saw that Malone’s pants were unzipped. However, Malone
                 contends that he and Dodson did not “fool around” while
                 Lowder was inside the Applegate residence.


                 On December 16, 2010, the State charged Lowder with murder
                 and Class C felony battery. The State later added a charge that
                 Lowder was a habitual offender. After a trial on the charges of
                 murder and battery, a jury convicted Lowder of both crimes. A
                 different jury later found Lowder to be a habitual offender. On
                 March 19, 2012, the trial court sentenced Lowder to fifty-five
                 years for murder, enhanced to eighty-five years by virtue of
                 Lowder’s habitual offender status. Lowder was also sentenced
                 consecutively to five years for Class C felony battery, for an
                 aggregate sentence of ninety years.


      Lowder v. State, No. 49A04-1204-CR-160, slip op. at 1-5 (Ind. Ct. App. Oct. 17,

      2012) (citations omitted), trans. denied. On appeal, Lowder argued that the

      evidence was insufficient to support his murder conviction and challenged his

      sentence as inappropriate. We affirmed the judgment. Id. at 5-8.


[4]   On June 14, 2013, Lowder filed his pro se petition for PCR, which he

      subsequently amended on November 30, 2015. 2 Lowder alleged approximately

      twenty-four instances of ineffective assistance of counsel (“IAC”) by Kelly

      Bauder (“Attorney Bauder”), who represented Lowder during the pretrial

      period, at Lowder’s jury trial, and at Lowder’s sentencing. On December 21,

      2015, Attorney Jonathan Gotkin entered an appearance on behalf of Lowder in




      2
          Lowder was represented by counsel at the hearing on the petition for PCR, but he is now proceeding pro se.


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020                       Page 5 of 31
      the PCR proceeding. Attorney Gotkin represented Lowder at the evidentiary

      hearing on the petition for PCR on June 14, 2016, and withdrew after the

      evidentiary hearing.


[5]   On December 19, 2016, Lowder, pro se, filed a request to dismiss the petition

      for PCR without prejudice because Lowder desired to expand the PCR record; 3

      on January 13, 2019, the PC Court denied Lowder’s request. On January 14,

      2019, the PC Court entered findings of fact and conclusions of law denying

      Lowder’s petition for PCR. Lowder now appeals.


                                                       Analysis

[6]   Post-conviction proceedings are civil proceedings in which a petitioner may

      present limited collateral challenges to a conviction and sentence. Gibson v.

      State, 133 N.E.3d 673, 681 (Ind. 2019); Ind. Post-Conviction Rule 1(1)(b). The

      petitioner bears the burden of establishing his claims by a preponderance of the

      evidence. Gibson, 133 N.E.3d at 681; P-C.R. 1(5). When, as here, the

      petitioner appeals from a negative judgment denying post-conviction relief, he

      “must establish that the evidence, as a whole, unmistakably and unerringly

      points to a conclusion contrary to the post-conviction court’s decision.” Gibson,

      133 N.E.3d at 681. When a petitioner fails to meet this “rigorous standard of

      review,” we will affirm the post-conviction court’s denial of relief. Id. Under




      3
          The State did not file a response to Lowder’s request to withdraw the petition for PCR.


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020                   Page 6 of 31
      this standard of review, “[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.” Gallien v. State, 19 N.E.3d 303, 307 (Ind. Ct. App. 2014).


                                                I.      Alleged IAC

[7]   Lowder argues that Attorney Bauder rendered ineffective assistance of counsel;

      Lowder also alleges that the cumulative effect of Attorney Bauder’s individual

      failures constituted IAC. To prevail on a claim of IAC, a petitioner must

      demonstrate that: (1) his or her counsel’s performance was deficient, and (2) the

      petitioner was prejudiced by the deficient performance. Ben-Yisrayl v. State, 729

      N.E.2d 102, 106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687,

      104 S. Ct. 2052, 2064 (1984)), reh’g denied, cert. denied, 534 U.S. 830, 122 S. Ct.

      73 (2001).


[8]   An attorney’s performance is deficient if it falls below an objective standard of

      reasonableness based on prevailing professional norms. Woodson v. State, 961

      N.E.2d 1035, 1041 (Ind. Ct. App. 2012), trans denied. A strong presumption

      arises that counsel rendered adequate assistance and made all significant

      decisions in the exercise of reasonable professional judgment. McCullough v.

      State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012), trans. denied. “[A] defendant

      must offer strong and convincing evidence to overcome this presumption.” Id.

      Isolated poor strategy, inexperience, or bad tactics does not necessarily

      constitute IAC. Id.


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020   Page 7 of 31
[9]    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. Davis v. State, 139 N.E.3d 246,

       261 (Ind. Ct. App. 2019). “A reasonable probability is a probability sufficient to

       undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct.

       at 2068. Failure to satisfy either prong will cause the claim to fail. Barber v.

       State, 141 N.E.3d 35, 42 (Ind. Ct. App. 2020). Most ineffective assistance of

       counsel claims can be resolved by a prejudice inquiry alone. Davis, 139 N.E.3d

       at 261.


                        A. Failure to Investigate Mitigating Facts and Witnesses

[10]   Lowder argues that Attorney Bauder rendered IAC by failing to investigate

       mitigating facts and witnesses. Lowder argues specifically that Attorney

       Bauder failed to adequately investigate Troy Malone and should have

       discovered that Malone lied in his statements to the police and at trial.


[11]   When deciding a claim for failure to investigate, we apply a great deal of

       deference to counsel’s judgments. McKnight v. State, 1 N.E.3d 193, 201 (Ind.

       Ct. App. 2013). Establishing failure to investigate as a ground for IAC requires

       going beyond the trial record to show what an investigation, if undertaken,

       would have produced. Id. “This is necessary because success on the prejudice

       prong of an IAC claim requires a showing of a reasonable probability affecting

       the result.” Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020   Page 8 of 31
[12]   By way of background, we note that, at Lowder’s jury trial, Malone testified

       that: he did not “fool around” with Dodson; Lowder accused him of doing so;

       Lowder was the initial aggressor of the violence; without provocation, Lowder

       struck Malone in the head with a gun; and Malone stumbled away from the

       scene, did not hear the gunshot, and did not see Dodson wounded. Prior Case

       Tr. Vol. I p. 60. Malone was subject to cross-examination by Attorney Bauder.


[13]   At the evidentiary hearing, Attorney Bauder testified that she investigated the

       scene and persons identified by Lowder, spoke with witnesses, and reviewed the

       State’s discovery, including the various witnesses’ statements to the police. She

       then decided to: (1) rely on the various witnesses’ statements to the police,

       rather than on depositions, to avoid the potential adverse impact on Lowder’s

       defense from depositions introduced in lieu of trial testimony, if any of the

       witnesses failed to appear for trial; and (2) refrain from calling any witness to

       testify that could harm Lowder’s defense.


[14]   As to Malone, Attorney Bauder testified further that she: (1) investigated, left

       voicemail messages for, and spoke with Malone on the phone; 4 (2) elected not

       to take Malone’s deposition; (3) found Malone to be “pretty flaky every time

       [she] talked to him”; and (4) believed, “given his background[,] . . . there was a

       chance [Malone] may not show [up at trial].” PCR Tr. Vol. p. 12. Also at the

       evidentiary PCR hearing, Malone testified that he lied to the police; he lied




       4
           Malone denies ever speaking with Attorney Bauder.


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020   Page 9 of 31
       during the jury trial; 5 and he believed he would “not” have told the truth on the

       witness stand but “can’t say for sure.” 6 Id. at 65.


[15]   The foregoing strategic decisions taken by Attorney Bauder are afforded

       considerable deference and do not give rise to IAC. Counsel need not be

       clairvoyant to be deemed effective. The record reveals that Attorney Bauder:

       (1) took at face value Malone’s two statements to police, which Malone later

       contended were false; (2) assessed Malone’s remarks to David Jr. and Virginia

       Applegate, which Malone later contended were false; and (3) made the strategic

       decision not to treat Malone as a mitigating witness for fear that he would harm

       the defense. Given Malone’s testimony at the hearing on the petition for PCR

       that he could not be sure that he would have testified truthfully even if Attorney

       Bauder had investigated him differently, Lowder cannot show that Malone




       5
         At the PCR hearing, Malone testified that, on the night of the incident, he made unwanted advances to
       Dodson, who accidentally dialed Lowder’s phone; Lowder appeared and caught Malone groping Dodson;
       Malone tried and failed to hit Lowder; and Lowder struck Malone with the gun, which discharged and fatally
       struck Dodson. Malone testified further that: (1) he traded voicemails with Attorney Bauder but never spoke
       with her; (2) he lied to the police because he was on probation, subject to a ten-year suspended sentence, and
       “didn’t want to get in any trouble”; (3) he also lied because “[he] was messin[g] around with [Dodson] . . .
       [and] didn't really feel comfortable in sayin[g] that in front of [his] wife”; and (4) he lied to Virginia
       Applegate, David Jr., and Malone’s brother about the incident. PCR Tr. Vol. pp. 56-57, 64.
       6
           The PC Court admitted into evidence Malone’s affidavit regarding the shooting, which provided:

                  [ ] Had I been contacted by Lowder’s defense counsel and told that this approach [of
                  lying] could only hurt Lowder, I would have told the truth that: (1) Lowder acted in
                  defense of [Dodson] first when she called him on the phone for help. (2) Lowder then
                  acted in self defense, when I moved to attack Lowder for catching me, by hitting me with
                  a gun which discharged and accidentally hit [Dodson] . . . .


       PCR Exhibits Vol. p. 24.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020                      Page 10 of 31
       would have benefited the defense. Lowder has not overcome the presumption

       that Attorney Bauder rendered adequate assistance and exercised reasonable

       professional judgment in her investigation and assessment of mitigating facts

       and witnesses. See Young v. State, 746 N.E.2d 920, 927 (Ind. 2001). Nor has

       Lowder demonstrated how he was prejudiced by the alleged failure of Attorney

       Bauder to investigate. The PC Court did not clearly err in this regard.


                                        B. Failure to Take Depositions

[16]   Lowder argues that Attorney Bauder rendered IAC by failing to take witness

       depositions. At the evidentiary hearing, Attorney Bauder testified that: (1) she

       “do[es]n’t believe” she took witness depositions of the persons named in

       Lowder’s petition for PCR; (2) she “had statements from these witnesses” and

       “knew what these witnesses [would] say . . . so [she] felt [she] was prepared”;

       (3) “[she] was “pretty reluctant to do [depositions] because depositions can be

       used in lieu of actual testimony at trial if the person [ ] disappears [or] doesn’t

       show for any number of reasons”; and (4) “[she] didn’t want to do anything

       that could be [ ] used against” Lowder. PCR Tr. pp. 7, 8, 9.


[17]   Lowder has not overcome the strong presumption that Attorney Bauder

       rendered adequate assistance and exercised reasonable professional judgment in

       forgoing witness depositions. See McCary v. State, 761 N.E.2d 389, 392 (Ind.

       2002) (“Few points of law are as clearly established as the principle that tactical

       or strategic decisions will not support a claim of ineffective assistance.”); see also

       Young, 746 N.E.2d at 927. Nor has Lowder shown how he was prejudiced by


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020   Page 11 of 31
       Attorney Bauder’s failure to take witness depositions. The PC Court’s findings

       and conclusions were not clearly erroneous in this regard.


                                    C. Failure to Call Witnesses to Testify

[18]   Lowder argues that Attorney Bauder rendered IAC by failing to call certain

       persons to testify at his jury trial. “A decision regarding what witnesses to call

       is a matter of trial strategy which an appellate court will not second-guess,

       although a failure to call a useful witness can constitute deficient performance.”

       Brown v. State, 691 N.E.2d 438, 447 (Ind. 1998) (citation omitted); see Young,

       746 N.E.2d at 927 (holding counsel’s strategic decisions are afforded

       considerable deference and do not give rise to IAC). We will not find counsel

       ineffective for failure to call a particular witness absent a clear showing of

       prejudice. Ben-Yisrayl v. State, 729 N.E.2d 102, 108 (Ind. 2000), cert. denied, 534

       U.S. 830 (2001). Moreover, when an IAC claim alleges the failure to present

       witnesses, the petitioner must offer evidence as to who the witnesses were and

       what their testimony would have been. Lee v. State, 694 N.E.2d 719, 722 (Ind.

       1998), cert. denied, 525 U.S. 1023 (1998).


                                   1. Wayne Adams and Tammy Lowder

[19]   Lowder alleges IAC from Attorney Bauder’s failure to call Wayne Adams and

       Tammy Lowder to testify at trial. Lowder presented no evidence whatsoever

       regarding the contents of these individuals’ testimony and, therefore, cannot

       make a clear showing of prejudice. See Lee, 694 N.E.2d at 722. The PC Court’s

       findings and conclusions are not clearly erroneous in this regard.


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020   Page 12 of 31
                                                     2. David Sr.

[20]   Lowder alleges IAC from Attorney Bauder’s failure to call David Sr. to testify

       at trial. At the evidentiary hearing, Attorney Bauder testified that she did not

       call David Sr. to testify because she knew the likely gist of his trial testimony

       from his statement to the police.


[21]   The jury trial record reveals that David Sr. did not testify for the State. At the

       PCR hearing, Lowder presented no evidence as to what the contents of David

       Sr.’s testimony would have been or how David Sr. would have benefited the

       defense.7 Lowder, therefore, cannot make a clear showing of prejudice. See

       Lee, 694 N.E.2d at 722. The PC Court’s findings and conclusions are not

       clearly erroneous in this regard.


                           D. Failure to File Motion to Suppress Statement

[22]   Next, Lowder argues that Attorney Bauder rendered IAC by failing to file a

       motion to suppress Lowder’s statement to the police because Lowder was

       sleepy and intoxicated at the time of the interview. To prevail on an ineffective

       assistance of counsel claim based on counsel’s failure to file motions, Lowder

       must demonstrate a reasonable probability that the motion would have been

       granted. Talley v. State, 51 N.E.3d 300, 303 (Ind. Ct. App. 2016), trans. denied.




       7
        At the evidentiary hearing, Lowder introduced into evidence Detective Schemenaur’s notes from David
       Sr.’s interview. David Sr.’s statement was extremely damaging to Lowder and corroborated the statements
       of David Jr. and Virginia Applegate. See PCR Exhibits Vol. p. 17.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020                 Page 13 of 31
[23]   “The admissibility of a confession is controlled by determining from the totality

       of the circumstances whether the confession was made voluntarily and was not

       induced by violence, threats, or other improper influences that overcame the

       defendant’s free will.” Carter v. State, 730 N.E.2d 155, 157 (Ind. 2000). Our

       Supreme Court has held that it is “only when an accused is so intoxicated that

       he is unconscious as to what he is saying that his confession will be

       inadmissible.” Id. “Intoxication of a lesser degree goes only to the weight to be

       given to the statement and not its admissibility.” Id.


[24]   In Treadway v. State, 924 N.E.2d 621, 635 (Ind. 2010), the defendant argued that

       his statement to the police was involuntary because he was tired and intoxicated

       during the interview. Our Supreme Court opined:


               It is true that intoxication and lack of sleep may be factors in
               determining voluntariness. But these factors are not sufficient of
               themselves. Instead they are included in the totality of the
               circumstances that a trial court considers in ruling on whether to
               admit a statement. . . . [A]t the time Treadway gave his
               statement he was cogent and lucid. Also, he had not consumed
               any drugs or alcohol for at least six hours. There was no
               evidence of threats, violence, promises, or use of improper
               influences. . . .[T]he trial court did not err in allowing the
               statement into evidence.


       Id. (citations omitted).


[25]   Our review reveals that the start of Lowder’s interview was delayed, and

       Lowder was asleep when the detectives were ready to speak with him.

       Detective Duley woke Lowder and asked Lowder to confirm the spelling of his

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020   Page 14 of 31
       name, his date of birth, and his Social Security number, which Lowder did

       accurately. Detective Duley read the constitutional rights advisements, which

       Lowder verbally acknowledged and signed. Occasionally, the detectives

       restated questions and asked if Lowder was paying attention. Lowder replied,

       “I’m with you” and answered, “Yes sir” to the detectives’ questions. Exhibit 41

       pp. 3, 4-6, 9-16. Lowder verbally acknowledged that he was not threatened,

       coerced, or otherwise influenced regarding his statement to the police.


[26]   At the evidentiary hearing on the petition for PCR, Attorney Bauder testified

       that: (1) she believed Lowder “was asleep [ ] on the tape,” and Lowder claimed

       “he took some kind of drugs”; (2) in her view, Lowder’s statement was neither

       involuntary nor coerced; and (3) she saw no “legal basis in which to” suppress

       the statement. PCR Tr. Vol. I pp. 20, 21.


[27]   Lowder has failed to demonstrate that a motion to suppress would have been

       granted if Attorney Bauder had filed one. Although Lowder was tired and

       allegedly intoxicated during the interview, like the defendant in Treadway,

       Lowder was responsive, “cogent and lucid” when he: (1) acknowledged the

       advisements; (2) answered questions, including correctly verifying his

       identifying information; (3) denied that he spoke to the police under threat,

       coercion, or undue influence; (4) expressed hope that Dodson would survive;

       and (5) spun a false narrative before confessing his role in Dodson’s death. See

       id.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020   Page 15 of 31
[28]   We conclude that, had Attorney Bauder filed a motion to suppress the

       statement, the trial court would have found, under the totality of the

       circumstances, that Lowder’s statement was given voluntarily; was not induced

       by threats, violence, or undue influence; and Lowder was not “unconscious as

       to what he [was] saying” when he spoke with the detectives. See Carter, 730

       N.E.2d at 157. Lowder did not demonstrate that a reasonable probability

       existed that any motion to suppress his statement would have been successful;

       thus, the PC Court’s findings and conclusions denying this claim are not clearly

       erroneous.


                                     E. Failure to Call Expert Witness

[29]   Lowder claimed that Attorney Bauder failed to call an expert witness to testify

       regarding his state of intoxication and the effects thereof on his statement to the

       police. The PC Court: (1) found that Attorney Bauder “did not believe there

       was anything to be gained by seeking expert testimony regarding intoxication;

       (2) found that Lowder failed to include supporting facts in his petition for PCR

       or in his proposed findings and conclusions; and (3) concluded that Lowder

       “presented no evidence as to what the testimony of an ‘expert prescription

       doctor’ would have been . . . .” PCR App. Vol. III p. 148.


[30]   At the evidentiary hearing, Attorney Bauder testified that, during her

       representation of Lowder, she did not recall believing that retaining an expert

       witness “[was] somethin[g] that . . . was worthy of pursuing.” PCR Tr. Vol. I

       pp. 46. Also, Lowder presented no evidence as what such testimony would

       have been or how the retention of such an expert could have aided his defense.
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020   Page 16 of 31
       Lowder has, therefore, failed to demonstrate that he was prejudiced by

       Attorney Bauder’s failure to call an expert witness to testify regarding the effects

       of Lowder’s voluntary intoxication on his statement to the police. The PC

       Court’s conclusion is not clearly erroneous in this regard.


                                       F. Failure to Object and Impeach

[31]   Lowder argues that Attorney Bauder rendered IAC by failing to: (1) object to

       the State’s introduction of perjured testimony; and (2) impeach the State’s

       witnesses with prior inconsistent statements to the police. Lowder’s arguments

       pertain to David Jr. and Virginia Applegate (“Virginia”). Lowder maintains

       that Attorney Bauder’s introduction of David Jr.’s and Virginia’s prior

       inconsistent statements would have refuted the State’s argument that “Lowder

       knowingly murdered Dodson.” See Lowder’s Br. p. 10. We begin by

       summarizing David Jr.’s and Virginia’s testimony.


                                            1. David Applegate, Jr.

[32]   Detective Schemenaur’s notes, dated December 13, 2010, provide that David

       Jr.: “Checked on noise, heard boom, [saw Lowder] by passenger door,

       [Malone] walking backward, saw [Lowder] with gun, ‘What do I do now, she’s

       dead!’, Got in truck and left.” PCR Exhibits Vol. p. 17.


[33]   At trial, fourteen-year-old David Jr. testified as follows: on the night of the

       incident, during Lowder’s visit to the Applegates’ home, Lowder’s demeanor

       changed due to something related to Lowder’s cell phone; Lowder exited the

       Applegates’ house; David Jr. went to the front of the house to investigate and

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020   Page 17 of 31
       heard a gunshot; David Jr. then opened the house door and saw Lowder

       looking inside his vehicle where Dodson was slumped inside; Lowder’s arms

       were outstretched, and David Jr. saw something in Lowder’s hand; Lowder

       pointed the object at Malone, who was bleeding from his head and “walking

       backward with his arms out”; Lowder said, “What the f*** do I do [ ]now,

       she’s dead”; Lowder drove away; and David Jr. went into the house and told

       his parents: “I think [Lowder] just shot [Dodson].” Prior Case Tr. Vol. I p. 96.

       On cross-examination, Attorney Bauder elicited testimony from David Jr. that,

       because he heard the gunshot before he opened the door and went outside, he

       did not know what transpired outside before he opened the door.


                                             2. Virginia Applegate

[34]   Detective Schemenaur’s notes provide that Virginia: “Heard noise, looked out

       and saw [Lowder]. [Dodson] got out of driver’s seat and got in passenger,

       Heard loud boom, Saw [Lowder], [Malone was] walking backwards with hands

       out, Looked like [they were] arguing, [David Jr.] said, ‘hey what’s going on?’

       Saw [Lowder] go south in truck [ ], [Malone] went north on foot.” PCR

       Exhibits Vol. p. 18.


[35]   At trial, Virginia testified as follows: after Lowder exited her house on the night

       of the incident, Virginia heard a sound and looked out a window to investigate,

       then joined David Jr. in looking outside the front door. She saw Malone

       backing away from Lowder’s vehicle, and David Jr. shared his impression of

       what he witnessed. Virginia and David Jr. got into their vehicle, tracked and



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020   Page 18 of 31
       spoke with Malone, and returned home to see a news bulletin regarding a

       woman who had been shot. Attorney Bauder did not cross-examine Virginia.


                                            3. Analysis of Claims

[36]   First, we find no support in the record for Lowder’s claim that the State

       knowingly introduced perjured testimony. Moreover, even if Attorney Bauder

       had objected to the testimony of Virginia and David Jr., the fact remains that

       credibility determinations are the province of the jury, and the trial court would

       likely have left the jury to decide which account of the events to believe. See

       Miller v. State, 106 N.E.3d 1067, 1073 (Ind. Ct. App. 2018). We, therefore,

       cannot say that the trial court would have had no choice but to sustain

       Lowder’s desired objection to the alleged perjured testimony. Lowder’s claim

       fails. The PC Court’s conclusions are not clearly erroneous in this regard.


[37]   As for Attorney Bauder’s failure to impeach Virginia and David Jr. with alleged

       prior inconsistent statements, we note that “[t]he method of impeaching

       witnesses is a tactical decision and a matter of trial strategy that does not

       amount to ineffective assistance.” Kubsch v. State, 934 N.E.2d 1138, 1151 (Ind.

       2010); see also McCary, 761 N.E.2d at 392 (“Few points of law are as clearly

       established as the principle that tactical or strategic decisions will not support a

       claim of ineffective assistance.”). It was within Attorney Bauder’s discretion to

       consider the effect of putting what she deemed to be minor prior inconsistent

       statements before the jury and to refrain from questioning the Applegates about

       the same. Such is especially true here because: (1) Attorney Bauder elicited

       David Jr.’s testimony on cross-examination that he did not observe the shooting
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020   Page 19 of 31
       and, therefore, could not testify that Lowder knowingly murdered Dodson; and

       (2) Lowder’s defense already contemplated conceding that Lowder’s actions

       caused Dodson’s death. 8 Moreover, Lowder has not presented evidence as to

       how he was prejudiced by Attorney Bauder’s cross-examination. Thus,

       Lowder’s claim fails. The PC court’s findings and conclusions are not clearly

       erroneous.


                                            G. Failure to Rehabilitate Error

[38]   Lowder argues that: (1) Attorney Bauder rendered IAC by her failure to review

       the State’s redacted version of Lowder’s statement to police; (2) the redacted

       statement misled jurors regarding Lowder’s criminal history; and (3) Attorney

       Bauder failed to rehabilitate the error.


[39]   The jury trial record reveals that, during the testimony of Detective Duley, the

       State introduced Lowder’s video-recorded statement to the police, which was

       redacted by agreement of the parties. Because the audio quality was poor, the

       State introduced a transcript of Lowder’s statement as a demonstrative aid. The

       trial court admonished the jury:


                  if you notice something different -- if you hear a difference
                  between what is on the [ ] CD and what you read, the actual
                  evidence is what’s on the CD and [ ] that’s what you’re to assume
                  is your evidence. [ ] So the actual evidence is what you hear. . . .




       8
           Attorney Bauder likely also considered the optics of challenging a teen-aged witness on the stand.


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020                        Page 20 of 31
       Prior Case Tr. Vol. II p. 21.


[40]   Counsel for the State and Attorney Bauder discovered, mid-trial, that the State

       did not make all the agreed redactions to the transcript. 9 As a result, the

       following passage remained in the transcript of Lowder’s statement:


                  . . . I [ ] hear what’s going on [between Malone and Dodson], I
                  come outside [to the] side of the truck . . . . And I hear [Dodson]
                  saying keep watching for him . . . . So I f****** slide down the
                  side of the black truck . . . and I’m going to bust them in the act .
                  . . . Supposed to be one of my good buddies. I opened the door
                  and I’m like man what the f*** man? What the f***? And
                  [Dodson] she just . . . didn’t say nothing [sic]. [Malone] was like
                  well I don’t know what we going to do now? When [Malone]
                  went like that[,] I went like that . . . and shoved [the gun]
                  away[ 10] ‘cause it was unexpected . . . and the gun went off and . .
                  . [Malone] jumps out of the truck and he was like well what do
                  we do? [ ] I was like man I don’t . . . [Malone] was like well I don’t
                  know nothing and I ain’t seen nothing . . . . And you know . . . I did ten
                  years for murder and I’m thinking man are you going to shoot me
                  next or what? So I jumped in the truck and took off.


       Prior Case Exhibit 41 Vol. p. 54 (emphasis added). Although the above-

       italicized language reflected Lowder’s recounting of Malone’s remarks, the

       transcript gave the impression that Lowder had a prior murder conviction. 11




       9
           Counsel for the State advised the trial court that the video-recording was properly redacted.
       10
            In this version of Lowder’s account of the events, the gun belonged to Malone.
       11
          Malone, not Lowder, served a ten-year sentence for voluntary manslaughter. At the outset of the trial, the
       trial court granted the State’s motion in limine to exclude Malone’s conviction.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020                         Page 21 of 31
[41]   Once the error came to light, Attorney Bauder argued:


               . . . [A]s you read [the transcript], I understand that it’s [Lowder]
               explaining what [Malone] is saying but I think if we just let it go
               it [ ] perhaps could leave a false impression with the jury that this
               is a quote from [Lowder] . . . . I mean, [the jury has] seen it. I
               don’t want them to be left with any impression that he has a
               murder conviction because he doesn’t. [ ] . . . I understand you
               admonished them that this was just demonstrative but they paid
               an awful lot of attention to it and I think it leaves a very bad
               impression with them . . . .


       Prior Case Tr. Vol. II p. 51.


[42]   The State argued that: (1) both sides failed to identify the redaction error; (2) the

       State “underst[ood] that the Court needs to rehabilitate [the error] . . . to make

       sure that it’s clear that something [Attorney] Bauder believed [was] redacted

       doesn’t imply [Lowder] has a conviction for murder”; and (3) the redactions

       were made mid-trial, and the State provided Attorney Bauder with a copy of the

       transcript as soon as the State could. Id. at 52. Attorney Bauder argued:


               Today’s Tuesday. I received a redaction . . . Friday from the
               State and I was only handed this prior to it . . . being handed to
               the jury and I asked[ ], . . . is this [ ] the final and [the prosecutor]
               handed me this one. So I didn’t have time to read through sixty-
               two pages prior to it being read to the Court.


       Id. at 55-56; see also id. at 61 (Attorney Bauder’s remarks to the trial court: “. . . I

       should have just asked for it in advance; and that’s my fault and I’ll take the

       heat for that when that time comes”).


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020    Page 22 of 31
[43]   The trial court expressed frustration with counsels’ oversight and ruled that

       Attorney Bauder could rehabilitate the error by eliciting the witness’ testimony

       that Malone had a prior manslaughter conviction. Accordingly, Attorney

       Bauder and the State each elicited Detective Duley’s testimony that the ten-year

       sentence reference in the transcript pertained to Malone, not Lowder.


[44]   Before admitting the transcript, the trial court admonished the jury that the

       video-recording of Lowder’s statement, and not the transcript, constituted

       evidence and that discrepancies between the two should be resolved in favor of

       the video-recording. On discovery of the redaction errors, the trial court

       permitted Attorney Bauder to rehabilitate the error, and both counsels elicited

       clarifying testimony. In light of these efforts, it is unlikely that the jury

       attributed the ten-year incarceration to Lowder, and Lowder has not shown he

       was prejudiced by counsel’s actions. Although the best practice would have

       been for Attorney Bauder to ensure that the State properly redacted the

       demonstrative aid, given the testimony that the sentence pertained to Malone

       rather than Lowder, Lowder has not shown he was prejudiced by counsel’s

       failure to do so. See Gibson, 133 N.E.3d at 682 (“isolated mistakes, poor

       strategy, or bad tactics do not necessarily constitute [IAC].”). Thus, the PC

       court’s findings and conclusions are not clearly erroneous in this regard.


                     H. Failure to Introduce Lowder’s Jailhouse Calls in Entirety

[45]   Lowder next argues that, after the State introduced Lowder’s redacted jailhouse

       phone calls into evidence, Attorney Bauder rendered IAC by her failure to

       introduce the calls in their entirety, pursuant to the doctrine of completeness.
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020   Page 23 of 31
       Indiana Evidence Rule 106 provides that: “If a party introduces all or part of a

       writing or recorded statement, an adverse party may require the introduction, at

       that time, of any other part—or any other writing or recorded statement—that

       in fairness ought to be considered at the same time.”). This rule may be used to

       admit omitted portions of a statement in order to: (1) explain the admitted

       portion; (2) place the admitted portion in context; (3) avoid misleading the trier

       of fact; or (4) ensure a fair trial and impartial understanding of the admitted

       portion. Hawkins v. State, 884 N.E.2d 939, 947 (Ind. Ct. App. 2008).


[46]   At the evidentiary PCR hearing, Attorney Bauder testified that: (1) she

       cautioned Lowder and his family that the State was monitoring and recording

       Lowder’s jailhouse calls; (2) the State played portions of the recorded calls for

       the jury; (3) Attorney Bauder and the State “[reached] an agreement about [ ]

       what [portion] of the jailhouse calls would be redacted and not”; (4) “[t]here

       were things that were not favorable for both sides on the calls” and the parties

       agreed on redactions; and (5) Attorney Bauder did not seek, pursuant to

       Evidence Rule 106, to play the entirety of the jailhouse calls for the jury because

       the calls “didn’t . . . help[ ]” Lowder “in any way[.]” PCR Tr. Vol. I pp. 26, 27.


[47]   Counsel is afforded considerable discretion in choosing strategy and tactics,

       such as Attorney Bauder’s decision not to invoke Evidence Rule 106; we accord

       those decisions deference. See Young, 746 N.E.2d at 927. Lowder has not

       overcome the strong presumption that Attorney Bauder rendered adequate

       assistance and exercised reasonable professional judgment in declining to

       introduce evidence harmful to Lowder’s case. Lowder does not assert that any

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020   Page 24 of 31
       of the jailhouse calls contained information beneficial to his defense; nor does

       Lowder explicitly state the nature of the allegedly mitigating content. Lowder

       has not demonstrated how he was prejudiced by Attorney Bauder’s failure to

       introduce the recorded calls in their entirety. The PC court’s findings and

       conclusions are not clearly erroneous in this regard.


                                 I. Failure to Pursue Theory of Self-Defense

[48]   Lowder argues that Attorney Bauder rendered IAC by her failure to pursue a

       theory of self-defense. The choice of defenses for trial is a matter of trial

       strategy, which we will not second-guess unless it is so deficient or

       unreasonable as to fall outside of the objective standard of reasonableness.

       Overstreet v. State, 877 N.E.2d 144, 154 (Ind. 2007). This is even true when the

       strategic choices made ultimately prove detrimental or worthy of criticism.

       Wrinkles v. State, 749 N.E.2d 1179, 1195 (Ind. 2001).


[49]   A valid claim of self-defense is a legal justification for an otherwise criminal act.

       Ind. Code. § 35-41-3-2(a) (2010). To prevail on such a claim, the defendant

       must show he: (1) was in a place where he had a right to be; (2) did not

       provoke, instigate, or participate willingly in the violence; and (3) had a

       reasonable fear of death or great bodily harm. Pinkston v. State, 821 N.E.2d 830

       (Ind. Ct. App. 2004), trans. denied. The amount of force that an individual may

       use to protect himself must be proportionate to the urgency of the situation. Id.

       When a person uses more force than is reasonably necessary under the

       circumstances, the right of self-defense is extinguished. Id.


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020   Page 25 of 31
[50]   There was no evidence presented at Lowder’s jury trial that he acted without

       fault or in reasonable fear of great bodily harm. At the evidentiary hearing,

       Lowder testified as follows: “when I went out there and caught Troy Malone

       messin around with . . . Angela Dotson [sic]—when I opened the door he

       knewed [sic] he got caught. Well, he come at me and kind of got aggressive

       with me”; “I’ve known him my whole life you know what I’m sayin—I know

       his reputation, you know what I mean so I was kind of intimidated—you see—I

       mean, he’s a bigger guy than me, you know what I’m sayin so I didn’t know

       what was gonna transpire so I felt I had a right to defend myself”; and “I

       smacked him with the pistol and it went off and shot Angela sittin next to him.”

       PCR Tr. Vol. pp. 83-84. Lowder presented Malone’s affidavit which provided

       that Malone “turned to strike Lowder[,]” “fumbled and missed[,]” and

       “Lowder stepped to the side and struck [Malone] in the eye with the butt of a

       gun that discharged upon impact with [Malone’s] skull and accidentally shot

       [Dodson, who was] sitting behind [Malone]. . . .” PCR Exhibits Vol. p. 23.


[51]   This testimony, even if believed, does not conclusively establish a viable claim

       of self-defense. Even if Malone testified consistently with the testimony he gave

       at the hearing on the petition for PCR, it is questionable that Lowder could

       have prevailed in relying on a claim of self-defense at trial. Under the

       circumstances outlined by Malone, Lowder faced no real danger from Malone,




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020   Page 26 of 31
       whose drunken fisticuffs had reportedly “fumbled and missed[,]” when Lowder

       struck Malone with the loaded handgun. 12 See id.


[52]   The record reveals that, to Attorney Bauder’s knowledge, Virginia’s and David

       Jr’s. statements to the police indicated that Lowder was the initial aggressor of

       the violence that resulted in Dodson’s death. At trial, Attorney Bauder

       conceded that Lowder committed reckless homicide and presented supporting

       evidence and argument thereon. Allowing Lowder to proceed on an alternative

       theory that he acted in self-defense was not, in Attorney Bauder’s view,

       supported by the evidence. Attorney Bauder’s tactical decision to forgo

       pursuing a theory of self-defense is entitled to considerable deference. See

       Overstreet, 877 N.E.2d at 154. Moreover, even if trial counsel had presented a

       claim of self-defense, Lowder has not established a reasonable probability that

       the result of the proceeding would have been different. In light of the lack of

       prejudice, Lowder’s claim of ineffective assistance of trial counsel fails. The PC

       Court did not clearly err here.




       12
            Indiana Code Section 35-41-3-2 (2010) provided:

                A person is justified in using reasonable force against another person to protect the person or a
                third person from what the person reasonably believes to be the imminent use of unlawful force.
                However, a person:
                  (1) is justified in using deadly force; and
                  (2) does not have a duty to retreat;
                if the person reasonably believes that that force is necessary to prevent serious bodily injury to
                the person or a third person or the commission of a forcible felony. No person in this state shall
                be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by
                reasonable means necessary.



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020                         Page 27 of 31
                                          J. Lesser-Included Offense

[53]   Lowder alleges IAC from Attorney Bauder’s concession of Lowder’s guilt to

       reckless homicide and battery during the jury trial. At the evidentiary hearing,

       Attorney Bauder testified that: (1) she would have discussed any concessions of

       guilt with Lowder and proceeded only with his approval; (2) she and Lowder

       “talked about offering the reckless homicide [defense]” and “thought [such] was

       the best way to handle the case”; and (3) she told the jury that Lowder was

       guilty of a Class C felony battery on Malone because the defense “went for . . .

       any opportunity to not get a murder conviction[.]” PCR Tr. Vol. pp. 31, 47.

       Attorney Bauder’s concession of Lowder’s guilt to a lesser-included offense was

       a strategic decision and subject to due deference, which does not support a

       claim of IAC. See Humphrey, 73 N.E.3d at 683. The PC Court did not clearly

       err here.


                                                    K. Sentencing

[54]   Lowder argues that Attorney Bauder rendered IAC by failing to elicit mitigating

       testimony from his siblings, Glema Cash and Theodore Lowder, at his

       sentencing hearing. Lowder’s siblings testified at the sentencing hearing;

       however, neither sibling raised Lowder’s history of childhood abuse, drug

       addiction, or alcoholism before the trial court. At the evidentiary PCR hearing,

       Attorney Bauder testified that “if [she] had” mitigating evidence, she “presented

       it[.]” PCR Tr. Vol. I p. 36. Lowder’s siblings testified at the PCR hearing that

       they did not reveal Lowder’s history to Attorney Bauder during Bauder’s

       representation of Lowder. Absent a showing that Attorney Bauder was ever

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020   Page 28 of 31
       made aware of Lowder’s history, the PC Court did not clearly err in concluding

       that Attorney Bauder did not commit IAC in this regard.


                                               L. Cumulative Effect

[55]   Based on the foregoing, the PC Court did not clearly err in concluding that the

       cumulative effect of Attorney Bauder’s alleged errors did not constitute IAC.


                               II.      Request to Withdraw Petition for PCR

[56]   Lastly, Lowder argues that the PC Court abused its discretion in denying his

       request to withdraw his petition for PCR without prejudice where “[t]he State

       failed to respond to th[e] [request] and show how the[ ] [State] would be

       prejudiced”; and “[t]he PCR Court had not made a final judgment . . . .”

       Lowder’s Br. p. 27.


[57]   A post-conviction court’s denial of a request to withdraw a petition for PCR is

       reviewed under an abuse of discretion standard. Tucker v. State, 786 N.E.2d

       710, 712 (Ind. 2003). We will disturb a trial court’s exercise of its discretion

       “only when the court reached an erroneous conclusion and judgment, one

       clearly against the logic and effect of the facts and circumstances before the

       court or the reasonable, probable and actual deductions to be drawn

       therefrom.” Tapia v. State, 753 N.E.2d 581, 585 (Ind. 2001). “[W]hile prejudice

       to the non-moving party is one relevant indicator, ‘it is not a proxy for the post-

       conviction court’s discretion[ .]’” Id. at 585-86.


[58]   PCR Rule 1(4)(c) provides:


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020   Page 29 of 31
               At any time prior to entry of judgment the court may grant leave
               to withdraw the petition. The petitioner shall be given leave to
               amend the petition as a matter of right no later than sixty [60]
               days prior to the date the petition has been set for trial. Any later
               amendment of the petition shall be by leave of the court.


[59]   The record reveals that the evidentiary hearing on Lowder’s petition for PCR

       was conducted on June 14, 2016. Six months later, on December 19, 2016,

       Lowder sought to withdraw his petition for PCR without prejudice. Lowder

       maintains that he sought to “expand the record[,]” “[to] produce the evidence

       that PCR counsel Jonathan Gotkin failed to get admitted into evidence at the

       PCR hearing”; to produce evidence that Attorney Bauder “never” introduced

       into evidence at trial; and to “call[ ] in additional witnesses to support the IAC

       claims he raised. See Lowder’s Br. at 29.


[60]   Given: (1) the time and resources that the PC Court expended regarding

       Lowder’s evidentiary hearing; (2) the preparation efforts of trial and PCR

       counsel; (3) and the inconvenience to the testifying witnesses, we cannot say

       that the PC Court’s denial of Lowder’s request to withdraw his petition for PCR

       six months after the evidentiary hearing was conducted was clearly against the

       logic and effect of the facts and circumstances before the PC Court. See Tinker

       v. State, 805 N.E.2d 1284, 1289 (Ind. Ct. App. 2004) (affirming denial, with

       prejudice, of Tinker’s motion to withdraw his second petition for PCR where,

       after five continuances, Tinker was unprepared to proceed at the evidentiary

       hearing, and holding “it may reasonably be inferred that the court and the State

       would suffer the costs of wasted time and preparation if Tinker were again

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020   Page 30 of 31
       allowed to withdraw his petition without prejudice”). The PC Court did not

       abuse its discretion by denying Lowder’s request to withdraw his petition for

       PCR six months after the evidentiary hearing thereon.


                                                  Conclusion
[61]   The PC Court did not clearly err in denying Lowder’s petition for PCR and

       Lowder’s request to dismiss his petition for PCR without prejudice. We affirm.


[62]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-269 | July 9, 2020   Page 31 of 31
