MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Mar 16 2018, 9:16 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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
India Lane                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Angela Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Rick L. Robinson,                                        March 16, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1609-PC-2031
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D04-0909-PC-83



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018            Page 1 of 15
                                        Case Summary
In 2008, a jury convicted Rick L. Robinson of criminal confinement, a Class C

felony;1 intimidation, a Class D felony;2 two counts of possession of a

controlled substance, a Class D felony;3 and possession of a firearm by a serious

violent felon, a Class B felony.4 This Court affirmed Robinson’s convictions on

direct appeal. See Robinson v. State, No. 02A05-0811-CR-658 (Ind. Ct. App.

April 24, 2009). Robinson filed a pro se petition for post-conviction relief,

which was subsequently amended by counsel. Following a hearing, the post-

conviction court denied Robinson relief.5 Robinson appeals the denial of his

petition. Concluding that none of the errors alleged by Robinson amount to

ineffective assistance of trial counsel, either alone or cumulatively, we affirm

the denial of Robinson’s petition.


                                                Issue
            The sole issue for our review is whether the post-conviction court
            erred in denying Robinson’s petition.




1
    IND. CODE § 35-42-3-3.
2
    I.C. § 35-45-2-1.
3
    I.C. § 35-48-4-7.
4
    I.C. § 35-47-4-5.
5
  The post-conviction court granted relief on one issue and vacated one of Robinson’s convictions for
possession of a controlled substance. However, the court explained that Robinson’s aggregate sentence
remained unchanged because the sentence for the vacated conviction had been run concurrently with the
sentence for another conviction.

Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018        Page 2 of 15
                                                     Facts
[1]   We set forth the facts as follows in Robinson’s direct appeal:


              Robinson and Amy Pate, who first met in 2001, began dating in
              January of 2008. On February 7, 2008, Pate spent the night at
              Robinson’s home on Third Street in Fort Wayne. The next
              morning, Robinson and Pate awoke around 6:00 a.m. and had
              sexual intercourse before Pate left to take her children to school.
              Pate returned to Robinson’s home at approximately 9:30 a.m.
              That morning, Robinson and Pate ran some errands around town
              before returning to Robinson’s home together around noon.
              Robinson and Pate then “went upstairs,” “smoked a blunt,” “had
              intercourse,” and “took showers together.” Tr. p. 166. As Pate
              and Robinson walked downstairs to leave, Pate realized that she
              could not find her keys.

              Pate described what happened next as follows:


                      [Pate] said, “Baby, I can’t find my keys,‟ and [Robinson]
                      turned around and looked at me and said, “what do you
                      mean?” And I said, “I can’t find my keys.” I put my
                      hands in my coat pocket and they weren’t there and he
                      turned and said, “Bitch, I’m going to show you what
                      happens to bitches like you that want to f*** with me.”
                      He slapped me across my face and told me to sit on his
                      weight bench. He went outside to his van. When he came
                      back inside, he dead[-]bolted his door with a key. He
                      picked up a brown weight belt that he had in his living
                      room and he told me we were going to go through the
                      whole house and look for my keys and everywhere we
                      didn’t find my keys he was going to hit me with that belt.
                      We started in his living room and walked through the
                      whole downstairs. I knew when I went through the
                      kitchen and I looked at his clock and it said 1:40 p.m. We
                      got up the stairs, he told me to open up his bedroom door.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018   Page 3 of 15
                I did. We got in the room, he continued to hit me with the
                belt. I had my back to it. He wrapped the belt around my
                neck. He bent back over his bed. He was spitting at me,
                yelling things at me. I can’t exactly remember what he
                was saying because all I could think was pray to God that
                I would see my kids again. When I told him I couldn’t
                breathe, he picked me up off of my feet, put the belt
                around my neck. I remember things started to turn white
                and fade away and I felt like I was going to pass out.
                [Robinson] stopped. He started touching my face
                realizing that he had caused injury to the left side of my
                face. He started freaking out, asking me what I was going
                to say happened to me. I told him anything I could to
                make him feel safe so he would let me go. I told him I
                would tell people I fell, that I got into a fight. I convinced
                him I would not turn him into anyone so that he would let
                me out of his house.


        Tr. pp. 167-68. Robinson told Pate that she would be on the
        front page of the newspaper if she told the police what happened
        to her. Robinson and Pate then walked downstairs together
        where they talked in his kitchen for a little bit. While in the
        kitchen, Pate noticed that her keys were in a plastic Kroger bag
        on Robinson’s table. Robinson told Pate that he “knew they
        were there the whole time.” Tr. p. 182. At approximately 3:40
        p.m., Robinson allowed Pate to leave his home.

        Pate waited until approximately 1:00 a.m. on February 9, 2008, a
        time when she knew Robinson would be asleep, to seek
        treatment. Pate was treated for bruises on her back, shoulder,
        and head, for pain in her left ear, and for facial contusions and
        abrasions. Dr. Andrew McCanna, Pate’s treating physician,
        described Pate’s demeanor as “pretty tearful, crying, upset and
        anxious.” Tr. p. 263. Pate told Dr. McCanna that her boyfriend
        had assaulted her and that she was afraid of him. Dr. McCanna
        determined that Pate’s injures were consistent with blunt force
        injury.
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018   Page 4 of 15
         On Sunday, February 10, 2008, Pate visited her sister and her
         father at her sister’s apartment. Upon observing Pate’s injuries,
         Pate’s father called the police. Fort Wayne Police Officer Doug
         Hart responded to Pate’s father’s call, recorded Pate’s statement
         that Robinson had beat her, and photographed Pate’s injuries.
         Later that evening, Robinson began calling Pate, describing the
         people who were visiting Pate’s home and what they were
         wearing. Pate, fearing for her safety as well as that of her
         children and her visitors, agreed to meet Robinson at his home.

         At some point after Pate arrived at Robinson’s home, Robinson
         became afraid that the police were going to raid his home
         because he thought they knew Pate was there. Robinson
         “grabbed his gun and waved it around pacing from his window
         to his bed and told [Pate] to write a note” stating that she suffered
         injuries after falling down the stairs. Tr. p. 189. Robinson told
         Pate what to write word-for-word and directed her to sign and
         date the note. Pate complied.

         Several days later, Fort Wayne Police Detective Scott Morales
         interviewed Pate and took additional photographs of her injuries.
         Detective Morales obtained a search warrant for Robinson’s
         home based on the information provided by Pate. Upon
         executing the search warrant, Detective Morales recovered a
         large, brown weight lifting belt from Robinson’s living room, a
         loaded silver, Smith and Wesson .357 magnum revolver,[6] two
         boxes of .357 magnum ammunition, a holster, and the note
         allegedly written by Pate stating that she fell down Robinson’s




6
  Fort Wayne Police Department Detective Scott Morales (“Detective Morales”), who executed the search
warrant at Robinson’s home, testified at trial that he found the gun in a jacket that was hanging on a bedpost
in Robinson’s bedroom. According to Detective Morales, the jacket appeared to be a very large men’s jacket,
and Robinson is a very large man.
Robinson’s landlord testified at trial that he owned the gun. He further testified that he believed that the gun
was in Robinson’s apartment because Robinson had entered the landlord’s garage without the landlord’s
permission and removed the gun. According to the landlord, the gun was not in his possession when he went
to Robinson’s house to repair a broken water heater in February 2008.

Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018              Page 5 of 15
              stairs from Robinson’s bedroom. Detective Morales also
              recovered an unlabeled pill bottle containing nine pills.
              Robinson described the pills as “methadone” and “Tylenol 3s”
              and admitted to Detective Morales that he knew the pills were in
              his bedroom. Chemical tests confirmed that the pills were
              methadone and Tylenol 3, both of which are scheduled drugs
              requiring a prescription for possession. No evidence was
              presented suggesting that Robinson had a prescription for either
              drug.

              On February 22, 2008, the State charged Robinson with Class C
              felony battery, Class C felony criminal confinement, Class D
              felony intimidation, Class D felony strangulation, two counts of
              Class D felony possession of a controlled substance, and Class B
              felony possession of a firearm by a serious violent felon. Prior to
              trial, Robinson moved to suppress the evidence recovered from
              his home, claiming that the search warrant lacked probable
              cause. The trial court granted Robinson’s motion as it related to
              certain bodily fluids and his cell phone, but denied the motion as
              it related to the other evidence recovered from Robinson’s home.
              Robinson also moved to prevent the State from presenting the
              testimony of Pate’s sister, Shannon Whelchel, that Robinson had
              made an unsolicited offer to sell her methadone, stating that he
              had a “doctor in his pocket.” Tr. p. 278-79. The trial court
              denied this motion. Following trial, the jury found Robinson
              guilty of all charges, except for the Class C felony battery charge
              and the Class D felony strangulation charge. The trial court
              entered judgment against Robinson and sentenced him to an
              aggregate term of twenty-eight years.

      Robinson, No. 02A05-0811-CR-658 at *2-6.


[2]   On direct appeal, Robinson argued that: (1) the evidence was insufficient to

      support his convictions because Pate’s testimony was incredibly dubious; (2) the

      evidence was insufficient to support his possession of a controlled substance


      Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018   Page 6 of 15
      convictions because there was insufficient evidence to prove that he knowingly

      or intentionally possessed the controlled substances; (3) the trial court abused its

      discretion in admitting evidence recovered from his home because the warrant

      authorizing the search of his home was not supported by probable case where

      the affidavit was based solely upon Pate’s report of the events; (4) the trial court

      abused its discretion in admitting Whelchel’s statements that Robinson offered

      to obtain methadone for her and told her that he had “a doctor in his pocket”

      because such statements were inadmissible pursuant to Indiana Rule of

      Evidence 404(b), (Trial Tr. 279);7 and (5) the trial court “abused its discretion in

      allegedly denying his right to present a defense by excluding evidence that Pate

      had been in a disagreement with another individual during the relevant time

      period.” Robinson at 13.


[3]   This Court concluded that: (1) Pate’s testimony was not incredibly dubious; (2)

      there was sufficient evidence that Robinson knowingly and intentionally

      possessed the Tylenol 3 and methadone, which were found in his bedroom; (3)

      the trial court did not abuse its discretion in admitting evidence from the search

      of his home because a police officer setting forth the victim’s report is sufficient

      to justify the issuance of a warrant;8 (4) the trial court did not abuse its

      discretion in admitting Whelchel’s statements because they were relevant to

      prove Robinson’s knowledge that methadone was a controlled substance, which




      7
          We cite to the trial transcript as Trial Tr. and to the transcript of the post-conviction hearing as PCR-Tr.
      8
          See Mickens v. State, 479 N.E.2d 520, 523 (Ind. 1985).


      Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018                  Page 7 of 15
      required a prescription by a doctor, and because Robinson had not shown

      prejudice as a result of Whelchel’s testimony; and (5) Robinson had failed to

      show how the admission of the proffered testimony concerning an alleged

      disagreement between Pate and another individual was relevant to prove or

      disprove whether Robinson and Pate had been involved in a physical

      altercation on February 8, 2008. We further noted that any error in the

      exclusion of evidence that Pate had been involved in a disagreement with

      another individual during the relevant time period was harmless because the

      jury had acquitted Robinson of the Class C felony battery charge and the Class

      D felony strangulation charge. See id.


[4]   In 2009, Robinson filed a pro se petition for post-conviction relief. A public

      defender entered an appearance but later withdrew from the case. In 2015,

      Robinson retained private counsel who filed an amended petition and argued

      that trial counsel was ineffective because counsel had failed to: (1) argue that

      the detective who submitted the affidavit for probable cause in support of the

      search warrant omitted from the affidavit Pate’s inconsistent statements and

      alleged drug-seeking behavior; (2) tender a constructive possession jury

      instruction; (3) call Larry Dickerson to testify; and (4) make an offer of proof

      regarding the potential defense that someone else had committed the crime.

      Robinson also argued that the cumulative effect of the alleged errors amounted

      to ineffective assistance of counsel. The post-conviction court held a two-day

      hearing on the petition in July 2015 and January 2016.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018   Page 8 of 15
[5]   At the hearing, when Robinson’s post-conviction counsel asked trial counsel

      why he had not tendered a constructive possession jury instruction, trial counsel

      explained as follows: “I don’t generally find myself tendering constructive

      possession instructions, that’s usually coming from the State because they want

      an alternative to being forced to prove actual possession.” (PCR-Tr. 24).


[6]   In addition, Larry Dickerson testified that he had been to Robinson’s house

      with Robinson’s landlord in February 2008. According to Dickerson, the two

      men had gone to Robinson’s house to repair a hot water heater and foam-spray

      a window in Robinson’s bedroom, and while the two men were in Robinson’s

      bedroom, the landlord “took off his coat and left it there.” (PCR- Tr. 69).

      Dickerson further testified that Robinson was one-hundred pounds heavier than

      his landlord and could not “have got his arm in the sleeve” of his landlord’s

      coat. (PCR-Tr. 70). In addition, Dickerson testified that he did not see a gun in

      the landlord’s jacket pocket and he did not see the landlord leave a gun at the

      the house that day.


[7]   Following the hearing, the post-conviction court issued a twenty-four page

      order that denied Robinson relief. Robinson now appeals the denial of his

      petition.


                                                  Decision
[8]   A defendant who has exhausted the direct appeal process may challenge the

      correctness of his conviction and sentence by filing a post-conviction petition.

      Parish v. State, 838 N.E.2d 495, 499 (Ind. Ct. App. 2005), trans. denied . Post-

      Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018   Page 9 of 15
       conviction procedures do not provide an opportunity for a super appeal. Id.

       Rather, they create a narrow remedy for subsequent collateral challenges to

       convictions that must be based on grounds enumerated in the post-conviction

       rules. Id. Post-conviction proceedings are civil proceedings, and a defendant

       must establish his claims by a preponderance of the evidence. Id.


[9]    In reviewing the judgment of a post-conviction court, this Court considers only

       the evidence and reasonable inferences supporting its judgment. Hall v. State,

       849 N.E.2d 466, 468 (Ind. 2006). The post-conviction court is the sole judge of

       the evidence and the credibility of witnesses. Id. at 468-69. 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 469. Only where the

       evidence is without conflict and leads to but one conclusion, and the post-

       conviction court has reached the opposite conclusion, will the court’s findings

       or conclusions be disturbed as being contrary to law. Id.


[10]   Where, as here, the post-conviction judge is the same judge who conducted the

       original trial, such a jurist is uniquely situated to assess whether counsel’s

       performance fell below an objective standard of reasonableness based on

       prevailing professional norms, and whether, but for counsel’s unprofessional

       conduct, there was a reasonable probability that the jury would have reached a

       different verdict. McCullough v. State, 973 N.E.2d 62, 75 (Ind. Ct. App. 2012),

       trans. denied. See also State v. Dye, 784 N.E.2d 469, 476 (Ind. 2003) (noting that

       because the judge presided at both the original trial and post-conviction hearing,

       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018   Page 10 of 15
       the judge was in “an exceptional position” to assess weight and credibility of

       factual evidence and whether defendant was deprived of a fair trial).


[11]   Robinson argues that the post-conviction court erred in denying his petition

       because he received ineffective assistance of trial counsel. We review claims of

       ineffective assistance of trial counsel under the two-prong test established in

       Strickland v. Washington, 466 U.S. 668 (1984). The defendant must show that

       trial counsel’s performance fell below an objective standard of reasonableness

       based on prevailing professional norms and that there is a reasonable

       probability that, but for counsel’s errors, the result of the proceeding would

       have been different. Moody v. State, 749 N.E.2d 65, 67 (Ind. Ct. App. 2001),

       trans. denied.


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

       we will accord those decisions deference on appeal. Wrinkles v. State, 749

       N.E.2d 1179, 1195 (Ind. 2001), cert. denied. Counsel’s performance is presumed

       effective, and a defendant must offer strong and convincing evidence to

       overcome this presumption. Smith v. State, 822 N.E.2d 193, 202 (Ind. Ct. App.

       2005), trans. denied. We will not speculate as to what may or may not have been

       advantageous trial strategy as counsel should be given deference in choosing a

       trial strategy which, at the time and under the circumstances, seems best.

       Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998).


[13]   If we can dismiss an ineffective assistance of counsel claim on the prejudice

       prong, we need not address whether counsel’s performance was deficient.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018   Page 11 of 15
       Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). Rather, we may proceed to

       evaluate whether the alleged error would have led to a different result. Ritchie v.

       State, 875 N.E.2d 706, 716 (Ind. 2007). When making this evaluation, we

       consider the totality of the evidence, taking into account the effect of the alleged

       error. Cooper v. State, 687 N.E.2d 350, 353 (Ind. 1997). A defendant is “entitled

       to a fair trial, not a perfect trial.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014)

       (citation omitted).


[14]   Here, Robinson first contends that he is entitled to post-conviction relief

       because his trial counsel was ineffective for failing to argue in his motion to

       suppress and at trial that a police officer had omitted information from the

       probable cause affidavit offered in support of the warrant to search Robinson’s

       home. Specifically, Robinson argues that the police officer omitted information

       about Pate’s alleged drug-seeking behavior when she went to the hospital

       several times in January and February 2008 and the alleged inconsistencies in

       her descriptions of the crime. Robinson, however, has failed to prove that his

       counsel rendered deficient performance by not raising these arguments and that

       but for this alleged error, the result of the proceeding would have been different.


[15]   Specifically, in the case of an alleged omission from a probable cause affidavit,

       a defendant has the burden to show that: (1) the police engaged in a deliberate

       falsehood or reckless disregard for the truth in omitting information from the

       warrant application; and (2) probable cause would no longer exist if the omitted

       information were considered by the issuing judge. Keelyen v. State, 14 N.E.3d

       865, 877 (Ind. Ct. App. 2014), trans. denied. Here, we agree with the State that

       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018   Page 12 of 15
       Robinson has neither argued nor met his burden of proof to show that the

       omission of this information was deliberate and that probable cause would have

       no longer existed if such omitted information had been considered by the

       issuing judge. Robinson has failed to meet his burden to show that but for this

       alleged error, the result of the proceeding would have been different.

       Accordingly, he cannot show the prejudice necessary to succeed on an

       ineffective assistance of counsel claim.


[16]   Robinson next contends that trial counsel was ineffective for failing to tender a

       constructive possession jury instruction. To prevail on his claim, Robinson has

       the burden to show that counsel unreasonably failed to request a proper

       instruction and that Robinson was prejudiced by the failure to request the

       instruction. See Potter v. State, 684 N.E.2d 1127, 1134 (Ind. 1997). Robinson

       has shown neither. We further note that at the post-conviction hearing, trial

       counsel explained that he had made a strategic decision not to tender a

       constructive possession instruction. According to trial counsel, constructive

       possession instructions typically come “from the State because they want an

       alternative to being forced to prove actual possession.” (PCR-Tr. 24). Counsel

       should be given deference in choosing a trial strategy. See Whitener, 696 N.E.2d

       at 42. Robinson has failed to meet his burden to show that trial counsel was

       ineffective for failing to tender a constructive possession jury instruction.


[17]   Robinson also argues that trial counsel was ineffective for failing to call Larry

       Dickerson as a witness at trial. It appears that Robinson believes that

       Dickerson’s testimony would have established that the gun and jacket that

       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018   Page 13 of 15
       Detective Morales found in Robinson’s bedroom belonged to the landlord, who

       left it there with his gun in the pocket when he was foam-spraying the window

       in Robinson’s bedroom. However, we agree with the State that “[t]rial counsel

       was not ineffective for not calling Dickerson to provide inconsequential

       testimony.” (State’s Br. 19). Specifically, Dickerson testified that he did not see

       a gun in the landlord’s pocket or in the landlord’s possession that day. He also

       testified that Robinson was one-hundred pounds heavier than the landlord and

       could not “have got his arm in the sleeve” of his landlord’s coat. (PCR-Tr. 70).

       We agree with the State that where “Dickerson claims no knowledge about the

       gun, and he clearly states that the jacket left behind [by the landlord] would not

       have been of the same distinctly large size as the one in which the gun was

       found,” his testimony was “arguably irrelevant . . . and certainly . . . not

       sufficiently probative to have altered the outcome of trial.” (State’s Br. at 20).

       Robinson has failed to meet his burden to prove that trial counsel was

       ineffective for failing to call Larry Dickerson as a witness at trial. See Grinstead

       v. State, 845 N.E.2d 1027, 1033 (Ind. 2006).


[18]   Robinson further argues that trial counsel was “ineffective because he failed to

       make a proper argument and offer of proof that [Robinson] was allowed to put

       on a defense that someone else could have battered Ms. Pate.” (Robinson’s Br.

       16). However, on direct appeal, this Court concluded that any error in the

       exclusion of evidence that Pate had been involved in a disagreement with

       another individual during the relevant time period was harmless because the

       jury acquitted Robinson of the Class C felony battery and the Class D felony


       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018   Page 14 of 15
       strangulation. See Robinson, No. 02A05-0811-CR-658 at 15. Robinson has

       failed to meet his burden of proving he would have been prejudiced by any such

       error. If we can dismiss an ineffective assistance of counsel claim on the

       prejudice prong, we need not address whether counsel’s performance was

       deficient. See Helton, 907 N.E.2d at 1023.


[19]   Robinson also contends that the cumulative effect of counsel’s errors deprived

       him of his right to the effective assistance of counsel. However, the Indiana

       Supreme Court has explained that “[t]rial irregularities which standing alone do

       not amount to error do not gain the stature of reversible error when taken

       together.” Kubsch v. State, 934 N.E.2d 1138, 1154 (Ind. 2010) (citing Reaves v.

       State, 586 N.E.2d 847, 858 (Ind. 1992)). We find no error, cumulative or

       otherwise.9


[20]   Affirmed.


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




       9
         Robinson also argues that appellate counsel was ineffective. He has waived appellate review of this
       argument because his one-paragraph argument is supported neither by citation to authority nor cogent
       argument. See Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005) (“Generally, a party waives any
       issue raised on appeal where the party fails to develop a cogent argument or provide adequate citation to
       authority and portions of the record.”), trans. denied.

       Waiver notwithstanding, we find no error. First, the post-conviction court granted relief on one of the issues.
       Second, because we have determined that Robinson did not receive ineffective assistance of trial counsel he
       can neither show deficient performance nor resulting prejudice as a result of his appellate counsel’s failure to
       raise these issues on appeal. See Smith v. State, 792 N.E.2d 940, 946 (Ind. Ct. App. 2003) (“As we find
       Smith’s [trial] counsel was not ineffective, appellate counsel did not err in failing to raise this issue on
       appeal.”), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018             Page 15 of 15
