MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           Sep 30 2016, 8:05 am

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


APPELLANT, PRO SE                                        ATTORNEYS FOR APPELLEE
Shane Kervin                                             Gregory F. Zoeller
Indiana Department of Correction                         Attorney General
Bunker Hill, Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Shane Kervin,                                            September 30, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         79A02-1410-PC-766
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Thomas Busch,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         79D02-1306-PC-11



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016   Page 1 of 19
                                           Statement of the Case
[1]   Shane Kervin (“Kervin”) appeals from the post-conviction court’s denial of his

      petition for post-conviction relief, in which he alleged that he had received

      ineffective assistance of trial and appellate counsel. Kervin also appeals the

      post-conviction court’s ruling denying his request for a supplemental

      evidentiary hearing. Concluding that Kervin has failed to meet his burden of

      showing that: (1) the post-conviction court abused its discretion by denying his

      request for a supplemental evidentiary hearing; and (2) the post-conviction

      court erred by denying relief on his allegations of ineffective assistance of

      counsel and showing, we affirm the post-conviction court’s judgment.


[2]   We affirm.


                                                          Issues
             1. Whether the post-conviction court abused its discretion by denying
             Kervin’s request for a supplemental evidentiary hearing.

             2. Whether the post-conviction court erred by denying post-
             conviction relief on Kervin’s claim of ineffective assistance of trial
             and appellate counsel.

                                                          Facts1
[3]   The facts of Kervin’s crimes were set forth in the memorandum decision from

      his direct appeal as follows:




      1
        We note that Kervin’s Appendix does not comply with our Appellate Rules, including, most notably, the
      rule requiring the inclusion of a table of contents that “shall specifically identify each item contained in the
      Appendix, including the item’s date.” Ind. Appellate Rule 50(C). Kervin’s failure to comply with the

      Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016              Page 2 of 19
              In October 2008, Kervin delivered cocaine to Detective Walters
              of the Lafayette Police Department in an undercover drug buy.
              As a result of this occurrence, Kervin was charged with dealing
              in cocaine, as a Class A felony,[2] and possession of cocaine, as a
              Class B felony. Ind. Code § 35-48-4-6 (2006). [Prior to trial, the
              trial court found Kervin to be incompetent to stand trial and
              ordered him to be placed at Logansport State Hospital until the
              trial court later determined him to be competent to stand trial.]
              At trial, the audio recording of the drug transaction was admitted
              into evidence over Kervin’s objection and played for the jury.
              Once the State rested, Kervin testified in his own defense and
              asserted the defense of entrapment. In order to impeach Kervin,
              the State questioned him about prior criminal convictions,
              including a prior conviction of conspiracy to commit robbery.

              The jury found Kervin guilty of both charges. At sentencing, the
              trial court [found Kervin guilty but mentally ill of both charges
              and] merged the Class B felony into the Class A felony and
              sentenced Kervin to thirty years with eight years suspended to
              probation.

      Kervin v. State, No. 79A04-1008-CR-474, *1 (Ind. Ct. App. Nov. 16, 2011)

      (additional relevant facts added in brackets), trans. denied.


[4]   On direct appeal, Kervin raised two arguments challenging the trial court’s

      admission of evidence during his jury trial. Specifically, he argued that the trial

      court abused its discretion by admitting: (1) evidence of his prior conviction for




      Appellate Rules and his disorganized Appendix have impeded our review of this case. Additionally, Kervin,
      contrary to Appellate Rule 50, included a copy of the post-conviction hearing in his Appendix. See App. R.
      50(F) (explaining that a party “should not reproduce any portion of the Transcript in the Appendix” because
      the “Transcript is transmitted to the Court on Appeal pursuant to Rule 12(B)”).
      2
        Kervin’s dealing charge was enhanced to a Class A felony based on his delivery of the drug within 1,000
      feet of a family housing complex. See IND. CODE § 35-48-4-1(b)(3)(B)(iii) (2006).

      Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016        Page 3 of 19
      conspiracy to commit robbery, arguing that it was not an impeachable offense;

      and (2) the audio recording of his drug transaction with an undercover officer,

      arguing that it was not of sufficient clarity. Id. Another panel of our Court held

      that Kervin had waived his challenge to the admission of his prior conspiracy to

      commit robbery conviction by failing to raise a timely objection at trial and

      that, waiver notwithstanding, any error in the admission of the evidence was

      harmless error because Kervin had a prior conviction for confinement that was

      used to impeach him. Id. at *1-2. Our Court also held that the trial court had

      not abused its discretion by admitting the audio recording and that, even if it

      had, any error would be harmless because it was cumulative of Detective

      Walters’ testimony. Id. at *2-3.


[5]   Subsequently, in November 2012, Kervin filed a pro se petition for post-

      conviction relief and later filed an amended petition in 2013. In these petitions,

      Kervin raised post-conviction claims of ineffective assistance of trial and

      appellate counsel. Specifically, Kervin alleged that his trial counsel had

      rendered ineffective assistance by: (1) failing to object to the State’s evidence

      regarding his prior conspiracy to commit robbery conviction; (2) failing to show

      that the State did not rebut his entrapment defense; (3) failing to raise a defense

      and show mitigating factors for the enhancement of his dealing conviction

      (being within 1,000 feet of a family housing complex); (4) failing to “investigate

      circumstances and surrounding events[;]” and (5) failing to request a Franks




      Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016   Page 4 of 19
      hearing3 to challenge the probable cause affidavit. (App. 405). In regard to

      Kervin’s ineffective assistance of appellate counsel claim, he alleged that his

      counsel had rendered ineffective assistance by “fail[ing] to argue Brady material4

      and exculpatory evidence.” (App. 405). Kervin did not allege or specify what

      exculpatory evidence his appellate counsel had failed to argue.


[6]   During the course of the post-conviction proceedings, Kervin sought to obtain a

      copy of a police body wire recording5 and accompanying transcripts that were

      introduced as exhibits during his jury trial.6 In March 2013, the post-conviction

      court ordered Kervin’s trial counsel to provide a copy of his file to Kervin. The

      court also stated that it would address Kervin’s request for the recording.


[7]   Meanwhile, in May 2013, Kervin filed a motion for change of judge, which the

      post-conviction court granted.7 Thereafter, in June 2013, Kervin filed a request

      for subpoenas. Specifically, Kervin sought to have subpoenas issued to: his

      trial counsel, Patrick Manahan (“Trial Attorney Manahan”); his appellate

      counsel, Bruce Graham (“Appellate Attorney Graham”); his trial judge, Judge

      Randy Williams; various police officers who testified or were involved in his




      3
          Franks v. Delaware, 438 U.S. 154 (1978).
      4
          Brady v. Maryland, 373 U.S. 83 (1963).
      5
          The body wire was worn by Detective Walters.
      6
       The recording was admitted as State’s Exhibit 2, and the two accompanying transcripts were admitted as
      State’s Exhibits 2a and 2b.
      7
       After the Honorable Randy J. Williams granted Kervin’s change of judge motion, the Honorable Thomas
      H. Busch assumed jurisdiction of Kervin’s post-conviction proceeding.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016      Page 5 of 19
      underlying case; the informant who gave his name to police; Dr. Jeffrey Wendt,

      who had performed a pre-trial competency evaluation of Kervin; and a member

      of the ACT team, which was a group that provided housing and living

      assistance to Kervin at the time of his crimes.


[8]   On August 22, 2013, the post-conviction court held a video conference hearing

      during which Kervin’s requests for subpoenas and the body wire transcripts

      were discussed. The State objected to Kervin’s subpoena requests, contending

      that some of his proposed witnesses were not relevant or probative of his

      ineffective assistance of counsel claims, and the post-conviction court ordered

      the parties to brief the issue. In regard to Kervin’s request for the body wire

      transcript, the post-conviction court directed the court reporter to provide

      Kervin with a copy of the transcripts of the recording that had been submitted

      during his trial. Thereafter, in January 2014, the post-conviction court agreed

      to issue subpoenas to Kervin’s trial and appellate counsel but denied his request

      for the remaining subpoenas.


[9]   On April 11, 2014, the post-conviction court held a hearing on Kervin’s post-

      conviction petition. At the beginning of the hearing, Kervin stated that he had

      not received a copy of the body wire recording or transcripts. The State and

      Kervin disagreed on whether the transcripts and recording were relevant to his

      post-conviction claims. The post-conviction court informed Kervin that it

      would allow him to proceed with the post-conviction hearing and his

      presentation of witnesses and, thereafter, would provide him with an

      opportunity to file a memorandum as to whether an additional hearing was

      Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016   Page 6 of 19
       necessary based on the recording and transcripts. Kervin confirmed that he

       understood that he could submit a memorandum for the trial court to then

       determine whether there was a need for a further hearing.


[10]   During the hearing, Kervin represented himself pro se and called his trial

       counsel and appellate counsel as witnesses. Kervin’s trial counsel testified, in

       relevant part, that prior to raising the defense of entrapment at trial, he had

       done research and investigated the facts surrounding Kervin’s offense and his

       background and psychological issues. Trial counsel also testified that he raised

       the entrapment defense “based on [his] research of the facts and the evidence in

       [Kervin’s] particular case,” even though he “was concerned that it was not

       going to be a successful defense.” (Tr. 96).


[11]   Appellate Attorney Graham testified that he had reviewed the trial transcripts

       and evidence and had decided to raise the two evidentiary appellate issues

       because he considered them to be the two strongest issues. Appellate Attorney

       Graham also testified that he had not raised an appellate issue about the

       entrapment defense because Kervin had “lost factually at trial.” (Tr. 45).


[12]   The post-conviction court stated that it would obtain and admit Kervin’s trial

       transcript and exhibits into evidence. At the end of the hearing, the post-

       conviction court again informed Kervin that he would receive a copy of the

       body wire recording and transcripts, and the court instructed the parties to file

       proposed findings and conclusions thereafter.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016   Page 7 of 19
[13]   On June 24, 2014, Kervin filed a motion to set a supplemental hearing. In his

       motion, he asserted that “[t]he [s]econd evidentiary hearing is contingent upon

       the petitioner not receiving” the tape recording and transcript of the body wire

       worn by Detective Walters, which was introduced at trial as State’s Exhibit 2.

       (App. 295). Kervin also stated that he wanted to have a supplemental hearing

       so he could re-subpoena and further question his trial and appellate counsel.


[14]   On July 24, 2014, the post-conviction court denied Kervin’s motion for a

       supplemental hearing. In its order, the post-conviction court—after noting that

       the “transcript of the body wire [wa]s part of the appellate record of [Kervin’s]

       underlying conviction” and that it had been forwarded to both parties following

       the post-conviction hearing—concluded that “[n]o further hearing [wa]s

       required.” (App. 285).


[15]   Thereafter, on September 25, 2014, the post-conviction issued an order denying

       Kervin’s petition for post-conviction relief on all claims of ineffective assistance

       of trial and appellate counsel specifically raised by Kervin in his post-conviction

       petitions. Kervin now appeals.


                                                   Decision
[16]   Kervin appeals the post-conviction court’s order denying post-conviction relief

       on his claims of ineffective assistance of trial and appellate counsel. Our

       standard of review in post-conviction proceedings is well settled.

               We observe that post-conviction proceedings do not grant a
               petitioner a “super-appeal” but are limited to those issues

       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016   Page 8 of 19
               available under the Indiana Post-Conviction Rules. Post-
               conviction proceedings are civil in nature, and petitioners bear
               the burden of proving their grounds for relief by a preponderance
               of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner
               who appeals the denial of PCR faces a rigorous standard of
               review, as the reviewing court may consider only the evidence
               and the reasonable inferences supporting the judgment of the
               post-conviction court. The appellate court must accept the post-
               conviction court’s findings of fact and may reverse only if the
               findings are clearly erroneous. If a PCR petitioner was denied
               relief, he or she must show that the evidence as a whole leads
               unerringly and unmistakably to an opposite conclusion than that
               reached by the post-conviction court.

       Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal case

       citations omitted), trans. denied. Additionally, “[w]e will not reweigh the

       evidence or judge the credibility of the witnesses; we examine only the

       probative evidence and reasonable inferences that support the decision of the

       post-conviction court.” Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007),

       reh’g denied, cert. denied.


       1. Post-Conviction Procedural Ruling

[17]   Before addressing Kervin’s post-conviction claims, we will first address his

       challenge to the post-conviction court’s procedural ruling that occurred during

       the course of this post-conviction proceeding. Specifically, Kervin argues that

       the post-conviction court erred by denying his request for a supplemental

       hearing.


[18]   We review a post-conviction court’s decision to deny a petitioner’s request for a

       supplemental evidentiary hearing for an abuse of discretion. See Pannell v. State,

       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016   Page 9 of 19
       36 N.E.3d 477, 486 (Ind. Ct. App. 2015) (explaining that a post-conviction

       court has “discretion to refuse to hold an additional hearing”), trans. denied.

       Indeed, “the decision about whether or not to hold a hearing is ‘best left to the

       [post-conviction] court’s discretion.’” Id. (quoting Smith v. State, 822 N.E.2d

       193, 201 (Ind. Ct. App. 2005), trans. denied).


[19]   Here, at the post-conviction hearing, after Kervin stated that he had not

       received a copy of the body wire recording or transcripts, the post-conviction

       court stated that it would ensure that he received a copy of those trial exhibits.

       The post-conviction court also informed Kervin that it would allow him to

       thereafter file a memorandum regarding whether a supplemental hearing was

       necessary. When Kervin filed his motion for a supplemental hearing, he

       asserted that “[t]he [s]econd evidentiary hearing [was] contingent upon the

       petitioner not receiving” the recording and transcripts of the body wire. (App.

       295). He also stated that he wanted to have a supplemental hearing so he could

       re-subpoena and further question his trial and appellate counsel. The post-

       conviction court denied Kervin’s motion for a supplemental hearing, noting

       that “[n]o further hearing [wa]s required” because Kervin had received a copy

       of the requested trial exhibits. (App. 285). Additionally, he had already had

       the opportunity to question his trial and appellate counsel during the initial

       post-conviction hearing.


[20]   Kervin has not shown that the post-conviction court’s denial of his motion

       constituted an abuse of discretion. Indeed, Kervin had an evidentiary hearing

       where he was able to question his trial and appellate counsel on his ineffective

       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016   Page 10 of 19
       assistance of counsel claims. Moreover, he did not raise any post-conviction

       claims specifically relating to the body wire recording and transcripts. Because

       Kervin has failed to show how the post-conviction court’s denial of his request

       for the supplemental hearing was an abuse of the court’s discretion, we affirm

       the trial court’s ruling.8


       2. Post-Conviction Claims – Ineffective Assistance of Counsel

[21]   Next, we turn to Kervin’s post-conviction claims regarding ineffective

       assistance of trial and appellate counsel.


[22]   We apply the same standard of review to claims of ineffective assistance of

       appellate counsel and ineffective assistance of trial counsel. Williams v. State,

       724 N.E.2d 1070, 1078 (Ind. 2000), reh’g denied, cert. denied. A claim of

       ineffective assistance of counsel requires a showing that: (1) counsel’s

       performance was deficient by falling below an objective standard of

       reasonableness based on prevailing professional norms; and (2) counsel’s

       performance prejudiced the defendant such that “‘there is a reasonable

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

       proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444

       (Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984), reh’g

       denied), reh’g denied, cert. denied. “A reasonable probability arises when there is a




       8
        In support of Kervin’s argument on this issue, he cites to Hamner v. State, 739 N.E.2d 157 (Ind. Ct. App.
       2000). We note, however, that Hamner involved review of a post-conviction court’s denial of an initial
       evidentiary hearing, not a supplemental hearing as we have here.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016        Page 11 of 19
       ‘probability sufficient to undermine confidence in the outcome.’” Grinstead v.

       State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466 U.S. at 694).

       “Failure to satisfy either of the two prongs will cause the claim to fail.” Gulzar

       v. State, 971 N.E.2d 1258, 1261 (Ind. Ct. App. 2012) (citing French v. State, 778

       N.E.2d 816, 824 (Ind. 2002)), trans. denied.


       A. Trial Counsel

[23]   Kervin argues that his trial counsel rendered ineffective assistance by: (1)

       failing to “effectively establish in the presence of the jury (fact finder) that the

       [S]tate [had] failed to rebut both prongs of [his] defense of entrapment; and (2)

       failing to present the statutory mitigating factors relating to the enhancement of

       his dealing offense for being within 1,000 feet of a family housing complex,

       specifically that he was present at the family housing complex for only a brief

       period of time and at the suggestion of the police.9


[24]   Before addressing Kervin’s claims, we note that:

                There is a strong presumption that counsel rendered adequate
                assistance and made all significant decisions in the exercise of
                reasonable professional judgment. Counsel is afforded
                considerable discretion in choosing strategy and tactics, and these
                decisions are entitled to deferential review. Isolated mistakes,




       9
        Kervin also appears to attempt to argue other ineffective assistance of trial counsel claims. These arguments
       are waived because he did not provide a cogent argument, see Ind. App. Rule 46(A)(8)(a), or because he did
       not raise them in his post-conviction petitions. See Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001) (“Issues
       not raised in the petition for post-conviction relief may not be raised for the first time on post-conviction
       appeal.”), reh’g denied, cert. denied; Ind. Post–Conviction Rule 1(8) (“All grounds for relief available to a
       petitioner under this rule must be raised in his original petition.”).

       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016         Page 12 of 19
               poor strategy, inexperience, and instances of bad judgment do
               not necessarily render representation ineffective.

       Stevens v. State, 770 N.E.2d 739, 746-47 (Ind. 2002) (internal citations omitted),

       reh’g denied, cert. denied. “Few points of law are as clearly established as the

       principle that ‘[t]actical or strategic decisions will not support a claim of

       ineffective assistance.’” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)

       (quoting Sparks v. State, 499 N.E.2d 738, 739 (Ind. 1986)), reh’g denied.


[25]   In regard to Kervin’s two ineffective assistance of trial counsel claims, the post-

       conviction court determined that Kervin had failed to meet his burden of

       establishing grounds for relief on these claims. The post-conviction court made

       several findings (Findings 8-19) on Kervin’s claim that his trial counsel failed to

       show that the State had not rebutted his entrapment defense. It also entered

       findings (Findings 20-23) addressing his claim that his trial counsel had failed to

       argue statutory mitigating factors that could have mitigated the enhancement of

       his dealing offense for being within 1,000 feet of a family housing complex (i.e.,

       that he was present at the family housing complex for only a brief period of

       time and at the suggestion of the police).


[26]   Turning to Kervin’s claim that his trial counsel failed to show that the State had

       not rebutted his entrapment defense, we note that our Indiana Supreme Court

       recently explained the defense of entrapment as follows:

               Entrapment in Indiana is statutorily defined:

               (a) It is a defense that:


       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016   Page 13 of 19
                    (1) the prohibited conduct of the person was the product of
                    a law enforcement officer, or his agent, using persuasion or
                    other means likely to cause the person to engage in the
                    conduct; and

                    (2) the person was not predisposed to commit the offense.

               (b) Conduct merely affording a person an opportunity to commit
               the offense does not constitute entrapment.

               Ind. Code § 35-41-3-9 (2008). A defendant does not need to
               formally plead the entrapment defense; rather, it is raised, often
               on cross-examination of the State’s witnesses, by affirmatively
               showing the police were involved in the criminal activity and
               expressing an intent to rely on the defense. Wallace v. State, 498
               N.E.2d 961, 964 (Ind. 1986); Fearrin v. State, 551 N.E.2d 472, 473
               (Ind. Ct. App. 1990). Officers are involved in the criminal
               activity only if they “directly participate” in it. Shelton v. State,
               679 N.E.2d 499, 502 (Ind. Ct. App. 1997) (finding, where officers
               merely placed deer decoy in field, they did not “directly
               participate in the criminal activity of road hunting,” and the
               defendants thus failed to raise the entrapment defense). The
               State then has the opportunity for rebuttal, its burden being to
               disprove one of the statutory elements beyond a reasonable
               doubt. Riley v. State, 711 N.E.2d 489, 494 (Ind. 1999); McGowan
               v. State, 674 N.E.2d 174, 175 (Ind. 1996) (holding because
               entrapment is established by the existence of two elements, it is
               defeated by the nonexistence of one). There is thus no
               entrapment if the State shows either (1) there was no police
               inducement, or (2) the defendant was predisposed to commit the
               crime. Riley, 711 N.E.2d at 494.

       Griesemer v. State, 26 N.E.3d 606, 608-09 (Ind. 2015).

[27]   When addressing Kervin’s claim that his trial counsel failed to show that the

       State had not rebutted his entrapment defense, the post-conviction court



       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016   Page 14 of 19
       recounted the entrapment-related evidence presented at trial that tended to

       rebut Kervin’s entrapment defense, and then made the follow relevant finding:


               18. Furthermore, counsel submitted an instruction to the jury on
               entrapment, and argued that defense on closing. Counsel gave
               the jury the opportunity to consider that the act of dealing was
               induced by the State, and that [Kervin] was not predisposed to
               deal, but the jury did not agree that the State had not refuted that
               contention, and found [Kervin] guilty. Trial record at 372, 389-91.

       (App. 197). Contrary to Kervin’s assertion, his trial counsel’s performance was

       not deficient. Furthermore, Kervin has failed to show what more his counsel

       should have done and that there is a reasonable probability that, but for his trial

       counsel’s alleged errors, the result of the proceeding would have been different.

       Accordingly, we affirm the post-conviction court’s denial of post-conviction

       relief on this ineffective assistance of counsel claim.


[28]   Next, we review Kervin’s claim that his trial counsel was ineffective for failing

       to show statutory mitigating facts for the enhancement of his dealing offense.

       Here, Kervin was charged with dealing cocaine, which was elevated to a Class

       A felony because he dealt it within 1,000 feet of a family housing complex. See

       I.C. § 35-48-4-1(b)(3)(B)(iii) (2006). INDIANA CODE §§ 35-48-4-16(b) and (c)

       provide that it is a defense to the enhancement to a Class A felony if the

       individual was only within 1,000 feet of a family housing complex briefly or if

       the individual was there only at the request or suggestion of law enforcement.


[29]   During the post-conviction hearing, Kervin’s trial counsel testified that he was

       aware of these factors under INDIANA CODE § 35-48-4-16 and that he did not

       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016   Page 15 of 19
raise them because there was trial evidence showing that Kervin directed the

detective to the apartment complex and that he was there for more than just a

brief time. When denying Kervin post-conviction relief on this ineffective

assistance of counsel claim, the post-conviction court found, in relevant part,

that:


        20. [Kervin’s] argument that counsel failed to raise the defense
        that he was in the Sun Villa Apartments, while dealing, for only a
        brief period, is inapt. (Also, it is not necessary that the charging
        information contain the exact times the transaction began and
        ended).

        21. The evidence showed that [Kervin] and [the] detective went
        to Sun Villa Apartments at [Kervin’s] direction. Therefore he
        cannot now be allowed to argue that he should not be penalized
        because he conducts his narcotics transactions speedily.

                                             *****

        30. Here the Court does not find that [trial] counsel was
        ineffective. In fact counsel for [Kervin] was conscientious,
        diligent and zealous in his representation, and in fact addressed
        at the time of trial the issues [Kervin] raises here for the Court.
        Counsel did not conduct errors, and therefore [Kervin] is unable
        to show that the outcome of the proceeding would have
        reasonably been different.

(App. 197). Because trial counsel’s decision not to argue these factors was a

strategic decision, Kervin cannot show that his counsel’s performance was

deficient. See McCary, 761 N.E.2d at 392 (explaining that tactical or strategic

decisions will not support a claim of ineffective assistance of counsel).

Accordingly, we affirm the post-conviction court’s denial of post-conviction

relief on this ineffective assistance of counsel claim. See French, 778 N.E.2d at
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016   Page 16 of 19
       824 (holding that a petitioner’s failure to satisfy either of the two prongs of an

       ineffective assistance of counsel will cause the claim to fail).


       B. Appellate Counsel

[30]   Lastly, Kervin contends that the post-conviction court erred by denying him

       post-conviction relief on his ineffective assistance of appellate counsel claim.

       Ineffective assistance of appellate counsel claims “‘generally fall into three basic

       categories: (1) denial of access to an appeal, (2) waiver of issues, and (3) failure

       to present issues well.’” Garrett v. State, 992 N.E.2d 710, 724 (Ind. 2013)

       (quoting Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006)). Kervin argues that

       his appellate counsel rendered ineffective assistance because he failed to raise a

       challenge to his entrapment defense on appeal. Thus, his ineffective assistance

       of appellate counsel claim is based upon category (2).


[31]   “Because the decision regarding what issues to raise and what arguments to

       make is ‘one of the most important strategic decisions to be made by appellate

       counsel,’ ineffectiveness is very rarely found.” Conner v. State, 711 N.E.2d 1238,

       1252 (Ind. 1999), (quoting Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1997),

       reh’g denied, cert. denied), reh’g denied, cert. denied. “‘Accordingly, when assessing

       these types of ineffectiveness claims, reviewing courts should be particularly

       deferential to counsel’s strategic decision to exclude certain issues in favor of

       others, unless such a decision was unquestionably unreasonable.’” Id. (quoting

       Bieghler, 690 N.E.2d at 194).




       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016   Page 17 of 19
[32]   We, however, need not review Kervin’s argument that his appellate counsel

       rendered ineffective assistance by failing to raise an entrapment issue on appeal

       because Kervin did not present this claim in his initial or amended post-

       conviction petitions. “Issues not raised in the petition for post-conviction relief

       may not be raised for the first time on post-conviction appeal.” Allen v. State,

       749 N.E.2d 1158, 1171 (Ind. 2001) (citing Ind. Post–Conviction Rule 1(8) (“All

       grounds for relief available to a petitioner under this rule must be raised in his

       original petition.”), reh’g denied, cert. denied. In his amended post-conviction

       petition, Kervin alleged that he had received ineffective assistance of appellate

       counsel because counsel had “failed to argue Brady material and exculpatory

       evidence.” (App. 405). Because Kervin did not raise this ineffective assistance

       of appellate counsel claim (failure to raise an entrapment issue on direct appeal)

       in his post-conviction petition that he now attempts to raise on appeal, he has

       waived any such argument. See, e.g., Koons v. State, 771 N.E.2d 685, 691 (Ind.

       Ct. App. 2002) (holding that issues not raised in the petition for post-conviction

       relief may not be raised for the first time on the post-conviction appeal; the

       failure to raise an argument in the petition waives the right to raise the

       argument on appeal), trans. denied.10




       10
         Moreover, waiver notwithstanding, Kervin’s claim is without merit because he has failed to show that if
       counsel had pursued the issue on direct appeal, then our Court would have reversed his convictions and
       remanded the cause for a new trial. Garrett, 992 N.E.2d at 724 (explaining that the prejudice prong for the
       waiver of issues category of an ineffective assistance of appellate counsel claim requires an examination of
       whether the issues that appellate counsel failed to raise would have been clearly more likely to result in
       reversal or an order for a new trial).



       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016         Page 18 of 19
[33]   Affirmed.


       Kirsch, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016   Page 19 of 19
