MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                        May 07 2018, 9:26 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James C. Spencer                                         Curtis T. Hill, Jr.
Madison, Indiana                                         Attorney General of Indiana
                                                         Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gary Lee Beason,                                         May 7, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1701-PC-112
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Angela Warner
Appellee-Plaintiff.                                      Sims, Judge
                                                         Trial Court Cause No.
                                                         48C01-1506-PC-13



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018                Page 1 of 26
                                Case Summary and Issue
[1]   Gary Lee Beason appeals the denial of his petition for post-conviction relief.

      He raises two issues for our review, which we consolidate and restate as

      whether the post-conviction court erred in denying his petition for post-

      conviction relief. Concluding the post-conviction court did not err in denying

      his petition, we affirm.



                            Facts and Procedural History
[2]   We summarized the facts of this case in Beason’s direct appeal:


              The facts most favorable to the judgment are that on April 18,
              1995, Karen Beason took four of her five children to a police
              substation in Anderson, Indiana. Karen was disoriented and
              confused and was admitted to the stress unit at Community
              Hospital. The Madison County Division of Family and Children
              took custody of the children in order to provide them with foster
              care.

              Pursuant to the intake process of the Division, the children were
              asked questions regarding improper sexual contact. J.G. and
              K.G., two of Karen’s children, gave answers which indicated that
              they had been molested. Evidence provided from a subsequent
              investigation indicated that Karen’s brother-in-law, Gary Lee
              Beason (Beason), had molested the two girls several times. K.G.
              was born on July 5, 1984. J.G. was born on December 31, 1985.

              In May 1995, Detective Kevin Smith was notified by Child
              Protective Services of the sexual abuse allegations regarding K.G.
              and J.G. Smith arranged for the children, who had been
              returned to Karen, to be removed from the home. Smith also
              arranged for a videotaped interview of K.G. and J.G. during
              which each girl repeated her claim of improper sexual contact by
              Beason. A medical examination of K.G. and J.G. confirmed
              that each girl had suffered penetrating injuries to her genitals.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018   Page 2 of 26
      Exhibits, Volume V at 63-64.


[3]   On July 7, 1995, the State charged Beason with ten counts of child molesting as

      Class B felonies and one count of child molesting as a Class C felony. Beason’s

      jury trial was held from August 16, 1995 through August 22, 1995. The jury

      found Beason guilty as charged and the trial court sentenced Beason to an

      aggregate sentence of 208 years in the Indiana Department of Correction.


[4]   A significant number of the facts pertinent to Beason’s petition for post-

      conviction relief occurred prior to his trial. After being arrested and charged

      with child molesting, Beason exercised his constitutional right to a speedy trial

      and the trial court scheduled his trial for August 10, 1995. On July 26, 1995,

      Beason’s appointed counsel, R.C. Dixon, requested a continuance due to a

      previously planned vacation from August 3 through August 14. The trial court

      granted the motion and scheduled a new trial date of August 16, 1995. On

      August 2, 1995, Dixon filed another motion for a continuance. The trial court

      did not grant the continuance and Dixon went on vacation.


[5]   On August 14, 1995, the trial court held a hearing to discuss the issue of

      Beason’s speedy trial. The trial court had been informed that Mr. Dixon was

      “going to be back the 14th of August” and Beason was transported to court

      from jail for the hearing. Record of Proceedings, Volume 1 at 133. Mr. Dixon

      returned late that day and was not present at the hearing.


[6]   The trial court held a pretrial hearing on August 15, 1995, at which Mr. Dixon

      was present and both he and Beason addressed the court.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018   Page 3 of 26
        [Beason]:                [O]n August the 14th I stated that I wasn’t
                                 happy with Mr. Dixon at all. The same thing
                                 . . . he is not ready to go into trial and we are
                                 ready to pick a jury. I asked for a fast and
                                 speedy trial, I didn’t want to sit over at that
                                 jail for eight (8) months to a year waiting to
                                 go to trial.

        [Trial Court]:           Well what is your point?

        [Beason]:                I am not satisfied with the help that I have
                                 got from this lawyer at all. To go into the
                                 Jury trial right now is just hanging me. He is
                                 not ready to take and get my witnesses here.
                                 He has not heard my case, nothing. All he
                                 has got, the motions that I asked him to file I
                                 don’t believe have been filed. . . .

        [Trial Court]:           I don’t know, it seems to me we are wasting
                                 time Mr. Beason because I told you yesterday
                                 under Criminal Rule #4 when you asked for
                                 a speedy trial I have to try you within seventy
                                 (70) days. I don’t have any choice. I have
                                 got two (2) major cases. I told you I have got
                                 Kevin Carter and I have got State versus
                                 Weatherford and they are going to take the
                                 bigger part of two (2) maybe three (3) months
                                 to conclude. You asked for a speedy trial.
                                 You didn’t withdraw it. I have no option but
                                 to go to trial. So the problem is not Mr.
                                 Dixon, the problem is you. . . .

        ***

        Mr. Dixon:               Your Honor, I want to address the motion I
                                 filed for a continuance. As I advised the
                                 Court when I requested the motion for
                                 continuance that I was going to be out of
                                 town. Now I understood, I thought I
                                 understood you to say that it would be
                                 continued to . . . I was thinking the 15th of
                                 September.

Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018   Page 4 of 26
        [Trial Court]:           Well I don’t know where you got that idea
                                 Mr. Dixon because I started Kevin Carter on
                                 September the 5th and under Criminal Rule
                                 #4 as you and I know and Mrs. Sauer knows
                                 and now Mr. Beason knows I have to try Mr.
                                 Beason within seventy (70) days or the
                                 charges are dismissed. . . . So you can’t have
                                 it both ways sir.

        [Beason]:                I am not asking for . . .

        [Trial Court]:           If you want a speedy trial you are going to get
                                 a speedy trial.

        [Beason]:                I am asking for a lawyer that is going to be
                                 working for me.

        [Trial Court]:           Well fine, your objection is noted. Your
                                 motion for continuance is denied. I have no
                                 choice Mr. Dixon. If I get into Kevin Carter
                                 then I am in the middle of November or
                                 December. I have no choice. It was Mr.
                                 Beason’s obligation to withdraw his motion
                                 for a speedy trial and he didn’t do it and we
                                 are going to trial today. . . . I will give you all
                                 the time in the world to talk. You want to
                                 see these tapes, I have already told you we
                                 will do it over the lunch hour. I had him here
                                 yesterday, but you apparently got back late. .
                                 ..

        [Beason]:                And I didn’t get a chance to talk to him
                                 yesterday.

        [Trial Court]:           The problem was caused by Mr. Beason’s
                                 demand for a speedy trial not by me and not
                                 by Mr. Dixon.

        [Beason]:                I just don’t want to sit over there for a year.



Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018   Page 5 of 26
        [Trial Court]:           Fine, I don’t have any problem with that sir,
                                 it is a right that you have that we are going to
                                 take care of you. Anything else gentlemen?

        Mr. Dixon:               I guess I just want to make sure the record
                                 reflects your Honor that I have visited Mr.
                                 Beason in jail three (3) times . . .

        [Beason]:                Twice.

        Mr. Dixon:               Before I left town. He has steadfastly told me
                                 that he had evidence that would prove his
                                 innocence. To date I haven’t received
                                 anything from him, not even this witness list
                                 that he keeps mentioning. So I am dealing
                                 with an uncooperative defendant.

        [Trial Court]:           I prefer not to get involved in that . . . .

        [Beason]:                Your Honor there is a conflict between Mr.
                                 Dixon and myself. There has been to day
                                 one.

        [Trial Court]:           Mr. Beason?

        [Beason]:                Yes sir?

        [Trial Court]:           Our problem is caused from your insistence
                                 to have a speedy trial.

        [Beason]:                I just don’t want to sit there for a year your
                                 Honor.

        [Trial Court]:           I tried to explain to you that I don’t have any
                                 room to maneuver here. I am not going to
                                 have these charges dismissed by the Supreme
                                 Court because I didn’t bring you to trial
                                 within seventy (70) days. If we don’t do it
                                 now it is going to be November or December
                                 before I have the time. So we are going to
                                 trial this morning and that is it. . . .


Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018   Page 6 of 26
        ***

        [Trial Court]:           Okay, so that is your discovery gentlemen. I
                                 will make time for you over the noon hour or
                                 later this afternoon if you wish to . . . you
                                 know it is obvious to all of us and perhaps
                                 you need to be reminded that the State has to
                                 go first. You will have plenty of time to put
                                 your case together. I will even give you a
                                 continuance in the middle of trial if you wish,
                                 an adjournment for a day or so, if that will be
                                 helpful. I intend to be very cooperative with
                                 you gentlemen. I realize the time pressure
                                 you are under. . . . I realize that everything
                                 cannot go according to plan but it is . . . this
                                 is brought about by Mr. Beason requesting a
                                 speedy trial which I am obligated to honor.

        [Beason]:                I just have a problem sitting here in jail
                                 waiting to go to trial. That is the reason I
                                 asked for the fast and speedy trial.

        [Trial Court]:           Yes sir and your concerns have been met and
                                 you are getting a speedy trial.


Id. at 110-17. The parties then conducted voir dire and selected a jury before

reconvening on the record.


        [Trial Court]:           Alright, is there anything else now Mr. Dixon
                                 we can take up this evening before we
                                 adjourn?

        Mr. Dixon:               Yes, your Honor. We would like for the
                                 record to reflect your Honor that Mr. Beason
                                 was brought to Court yesterday without
                                 benefit of counsel, without counsel even
                                 being in the State for that matter and that Mr.
                                 Beason tells me that he was not aware that
                                 yesterday that he should ask that he withdraw
                                 his speedy trial request and that that request

Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018   Page 7 of 26
                                 was indeed made today. And your Honor we
                                 want the record to reflect that Mr. Beason
                                 still wants to withdraw his speedy trial
                                 request.

        [Trial Court]:           Well we were told you were going to be back
                                 the 14th of August so I added [Beason] to the
                                 list so he could talk to you about that very
                                 issue . . . so I mean no disrespect to you Mr.
                                 Dixon because there was nothing on the
                                 calendar. I just had him brought over in the
                                 event you were here. . . . You weren’t here
                                 and that is fine. But the . . . okay he wanted
                                 to withdraw his speedy trial and he never
                                 mentioned a thing about it sir. He never said
                                 a thing. I guess the record should reflect I
                                 was here and Mrs. Sauer was here and he
                                 didn’t say a thing about it did he Mrs. Sauer?

        [State]:                 No sir, and if I remember correctly your
                                 Honor went to great length to discuss with
                                 Mr. Beason that he understood that the
                                 reason we were going to trial tomorrow was
                                 his choice because he had requested a speedy
                                 trial and any of his other problems were
                                 related to the speedy trial request just as we
                                 did this morning. It was very much the same
                                 thing as this morning and I think your Honor
                                 made it quite clear that there was certainly an
                                 option for Mr. Beason at any time to say that
                                 he didn’t want to go to trial that he wanted to
                                 get better prepared and he chose that he
                                 wanted to have a trial today.

        [Trial Court]:           He never mentioned once that he was
                                 withdrawing his request for speedy trial Mr.
                                 Dixon and I am sorry if there is any
                                 confusion but the confusion is not mine. It is
                                 no [sic] of my making and I have no choice
                                 because of these other lengthy, intense, high
                                 profile cases that are going to take into
                                 probably November. I had no choice. He

Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018   Page 8 of 26
                                 demanded a speedy trial so today was the day
                                 we have to go. And so that is it. We got our
                                 Jury. . . .

        ***

        Mr. Dixon:               Your Honor I have . . . well that brings up
                                 another matter your Honor?

        [Trial Court]:           Yes sir?

        Mr. Dixon:               As you know I have not had time to really
                                 confer with my client.

        [Trial Court]:           Why haven’t you? . . . I know you talked to
                                 him from 9:00 o’clock till a quarter till eleven
                                 this morning almost non-stop . . . . [Y]ou are
                                 trying to leave the impression that I have not
                                 allowed you the time to talk with your client.
                                 That is certainly not true. I am not sure what
                                 your point is.

        Mr. Dixon:               I am not trying. I am definitely leaving an
                                 impression your Honor that I need more time
                                 in order to prepare for this case.

        [Trial Court]:            I understand that.

        Mr. Dixon:               I don’t . . . .

        [Trial Court]:           We have been down that road . . . .


Id. at 133-35, 139-40. Following this colloquy, the parties entered into a

discussion concerning discovery.


        Mr. Dixon:               In response to the State’s allegations your
                                 Honor, we would say it again, as far as
                                 discovery is concerned we received discovery
                                 this morning. Certainly it is not adequate


Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018   Page 9 of 26
                                 time for us to go over anything with my
                                 client.

        [State]:                 Discovery was provided over a week ago and
                                 unfortunately Mr. Dixon was out of town.

        ***

        Mr. Dixon:               The only thing we had was the information.

        [State]:                 I discussed with Mr. Dixon everything that
                                 there was and I further told him that there
                                 was [sic] medical reports that I would be
                                 providing and those were provided more than
                                 a week ago.

        [Trial Court]:           And even . . .

        Mr. Dixon:               In my absence.

        [Trial Court]:           And even your client this morning was
                                 complaining because he didn’t have copies of
                                 statements but there aren’t any statements.
                                 The statements are videos.

        [Beason]:                But isn’t the doctor’s statement still
                                 considered a statement? I mean . . .

        [Trial Court]:           Read my lips. I am George Bush. She gave
                                 it to your lawyer a week ago.

        [Beason]:                Oh.

        [State]:                 Unfortunately Mr. Dixon was on vacation
                                 which I can’t . . . I am not saying that Mr.
                                 Dixon shouldn’t have gone on vacation, he
                                 had a vacation planned and that is fine, I am
                                 just saying that I just provided those[.]

        [Trial Court]:           My instincts tell me that he probably took
                                 those with him. In any event . . .


Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018   Page 10 of 26
        Mr. Dixon:               Your Honor, let me clarify your instincts.

        [Trial Court]:           Yes sir.

        Mr. Dixon:               I have been out of town since the 3rd,
                                 discovery was placed in . . . file marked on
                                 the 7th. I did not get any discovery until this
                                 morning.

        [Trial Court]:           Okay, great. The lady said she gave them to
                                 you more than a week ago, that is true, she
                                 did.

        Mr. Dixon:               Discovery when I am not available to receive
                                 it is not giving it to me.

        [Trial Court]:           Well I am sorry Mr. Dixon I would . . . next
                                 time I will make arrangements to have them
                                 shipped by Federal Express, just tell us where
                                 to send them. I will be happy to cooperate in
                                 anyway [sic] Mr. Dixon.

        Mr. Dixon:               Well next time doesn’t help [Beason] any this
                                 time.

        [Trial Court]:           Alright.

        ***

        Mr. Dixon:               [Y]our Honor, as we have pointed out on
                                 several times . . ., we have been operating
                                 with a severe time disadvantage here. We
                                 did ask for a continuance on this trial and we
                                 did ask for a . . .

        [Trial Court]:           You never asked for a continuance of the
                                 trial, you only asked for a continuance after I
                                 had the Jury selected.

        [State]:                 No he asked for a continuance of the trial last
                                 week.


Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018   Page 11 of 26
              Mr. Dixon:               Your Honor, I asked for a continuance before
                                       I left town.

              [Trial Court]:           Well that is right, that is right, but your client
                                       didn’t.and [sic] I made it perfectly clear I am
                                       in a bind. If I grant the continuance I can’t
                                       try it till November or December. And I told
                                       you myself, get your client to sign it and he
                                       didn’t. Had that been done I would have
                                       granted your continuance. But I can’t have it
                                       both ways. I can’t have one of you saying I
                                       want to go to trial and the other one saying I
                                       want a continuance because I will lose. It is
                                       what the client wants that the Court looks at.
                                       If he had signed that motion for continuance
                                       I would have granted it. But he didn’t. I am
                                       stuck.


      Id. at 143-46, 180-81. Beason’s jury trial commenced the next day and, as

      noted, the jury found Beason guilty as charged and he was sentenced to 208

      years in the Department of Correction. The trial court appointed William

      McCarty as Beason’s appellate counsel.


[7]   Beason’s direct appeal raised four issues: 1) whether the prosecutor committed

      prosecutorial misconduct; 2) whether Beason received ineffective assistance of

      trial counsel; 3) whether the trial court abused its discretion in finding

      aggravating sentencing factors; and 4) whether Beason’s sentence was

      unreasonable. See Exhibits, Vol. V at 11, 63. With respect to Beason’s

      argument concerning the effectiveness of his counsel, Beason argued his trial

      counsel was ineffective for failing to object to the State’s closing argument. We

      affirmed Beason’s convictions and sentence. Beason v. State, No. 48A02-9512-



      Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018   Page 12 of 26
      CR-775, slip op. at 14 (Ind. Ct. App. Feb. 27, 1997); see also Exhibits, Vol. V at

      75.1


[8]   In April of 2001, Beason, pro se, filed his petition for post-conviction relief and

      a public defender was appointed. In May of 2005, the public defender’s office

      withdrew its appearance from the case. In June of 2012, Beason withdrew his

      petition without prejudice. On June 15, 2015, Beason, with the benefit of

      counsel, filed his second petition for post-conviction relief. In his petition for

      post-conviction relief, Beason alleged 1) he was denied effective assistance of

      trial counsel; 2) he was denied effective assistance of appellate counsel; 3) he

      was denied due process in violation of the Fourteenth Amendment to the U.S.

      Constitution; and 4) he was subjected to a critical hearing the day before his

      trial without the benefit of counsel in violation of the Fifth, Sixth, and

      Fourteenth Amendments to the U.S. Constitution and Article 1, Sections 12

      and 13 of the Indiana Constitution. The post-conviction court held an

      evidentiary hearing on March 28, 2016, at which both Mr. Dixon and Mr.

      McCarty testified. Mr. Dixon testified as follows:


               [Counsel for Petitioner]: Were you prepared to go to trial?

               [Mr. Dixon]:                        Based on . . . the transcript, actually
                                                   no.

               ***



      1
        On Beason’s ineffectiveness claim, this court did not address trial counsel’s performance but concluded that
      Beason suffered no prejudiced from the prosecution’s closing argument. Beason, No. 48A02-9512-CR-775,
      slip op. at 11; see also Exhibits, Vol. V at 72.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018                Page 13 of 26
        [Counsel for Petitioner]: Do you think that . . . Judge Spencer
                                  was . . . impartial when it came to
                                  child molest cases?

        ***

        [Mr. Dixon]:                      I did not think that he was impartial in
                                          general, so.

        ***

        [Counsel for Petitioner]: [B]ut you do admit, Mr. Dixon, that
                                  you were not prepared for this trial? Is
                                  that correct?

        [Mr. Dixon]:                      I coulda used more time for sure.


Transcript, Volume I at 30-31, 43. And Mr. McCarty testified:


        [Counsel for Petitioner]: You raised the issue of ineffective
                                  assistance of counsel on appeal. Uh, is
                                  there any reason what – or did you
                                  consider . . . evading that issue and
                                  waiting for post-conviction relief?

        [Mr. McCarty]:                    I did not. I did not.

        [Counsel for Petitioner]: [D]o you recall whether or not that
                                  was an issue of some controversy even
                                  back in nineteen (19) ninety-six (96)?


        [Mr. McCarty]:                    About when those issues should be
                                          raised? . . . [Y]es. There was some
                                          debate about that, but I, I felt a
                                          responsibility to raise the issue.

        ***



Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018   Page 14 of 26
        [Counsel for Petitioner]: Even if the issue of ineffective
                                  [assistance of trial counsel] is an issue
                                  that you raised. You don’t believe that
                                  you avoided other . . . issues as far as
                                  the ineffectiveness of trial counsel?

        [Mr. McCarty]:                    No.

        ***

        [Counsel for Petitioner]: [W]ith the . . . argument of ineffective
                                  assistance of trial counsel . . . do you
                                  agree that, uh, you, you didn’t raise
                                  any issue with respect to lack of
                                  preparation?

        [Mr. McCarty]:                    I did not raise that issue of lack of
                                          preparation.

        [Counsel for Petitioner]: Or the fact that trial counsel had no
                                  opportunity to review, uh, discovery
                                  prior to trial?

        [Mr. McCarty]:                    Uh, that was not raised in the appeal.

        ***

        [State]:                          When you write an appeal, can you
                                          raise every issue that you think might
                                          be there?

        [Mr. McCarty]:                    [P]erhaps I should explain my
                                          approach on appeals. Which was not
                                          to throw everything up against the wall
                                          and to see what stuck, I mean, this was
                                          a, a general approach . . . . But, but
                                          the general approach was to try to
                                          target the most significant . . . events of
                                          a trial that could be challenged, and
                                          narrow the focus and, and, and get the
                                          Appellate Court to focus on three (3)
                                          to five (5), issues that I thought were

Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018   Page 15 of 26
                                                paramount. . . . I felt over time, that
                                                the best success I had was in narrowing
                                                the focus to the . . . certain – a handful
                                                of issues, and . . . having the Appellate
                                                Court focus on that.

              ***

              [State]:                          Did you present to the Appellate Court
                                                what you thought had the best [sic] of
                                                succeeding for Mr. Beason?

              [Mr. McCarty]:                    Yes, absolutely, I did.

              [State]:                          And does your mind change on that
                                                any today?

              [Mr. McCarty]:                    No. Uh, I, I – in reviewing all of this,
                                                uh, do I second guess myself? Do we
                                                all do that? Yes, but, but no. I, I feel
                                                that the issues that were the best issues
                                                were raised at the Appellate Court. I
                                                do.


      Id. at 51-52, 56, 58, 62, 68-69.


[9]   On December 16, 2016, the post-conviction court issued its findings of fact and

      conclusions thereon denying Beason relief. The post-conviction court

      determined Beason’s allegation of ineffective assistance of trial counsel was res

      judicata and, even if it was not res judicata, Beason failed to demonstrate

      deficient performance by his trial counsel. With respect to his claim of

      ineffective assistance of appellate counsel, the post-conviction court determined

      counsel’s performance was within the wide range of professional competence.

      Finally, the post-conviction court determined Beason’s claims were barred by


      Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018   Page 16 of 26
       the doctrine of laches. Beason now appeals. Additional facts will be added as

       necessary.



                                  Discussion and Decision
                                      I. Standard of Review
[10]   An Indiana appellate court will not reverse a post-conviction court’s denial of

       post-conviction relief unless the evidence is without conflict and leads only one

       conclusion, and the post-conviction court reached the opposite conclusion.

       McCary v. State, 761 N.E.2d 389, 391-92 (Ind. 2002). The post-conviction

       petitioner bears the burden of proof to convince the appellate court that the

       evidence as a whole leads unerringly and unmistakably to a decision opposite

       that reached by the post-conviction court. Id. at 391; see Ind. Post-Conviction

       Rule 1(5) (“[T]he petitioner has the burden of establishing his grounds for relief

       by a preponderance of the evidence.”). We review the post-conviction court’s

       factual findings for clear error, but we owe no deference to its conclusions of

       law. Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013).


[11]   Post-conviction proceedings provide a petitioner with the “opportunity to raise

       issues that were not known at the time of the original trial or that were not

       available on direct appeal.” Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind.

       2000), cert. denied 534 U.S. 1164 (2002). As a general rule, if an issue was

       known and available but not presented on direct appeal, the issue is waived.

       Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839

       (2002). A petitioner claiming ineffective assistance of trial counsel may choose
       Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018   Page 17 of 26
       to bring such a claim on direct appeal or in post-conviction proceedings. Jewell

       v. State, 887 N.E.2d 939, 941 (Ind. 2008). The appellate resolution of

       petitioner’s ineffectiveness claim is res judicata if raised on direct appeal and

       decided adversely. Id. In such a case, however, a petitioner may still allege

       ineffective assistance of appellate counsel in bringing a claim of ineffective

       assistance of trial counsel on direct appeal. McCary, 761 N.E.2d at 392-93.


                                   II. Post-Conviction Relief
                   A. Ineffective Assistance of Appellate Counsel
[12]   Beason first contends he received ineffective assistance of appellate counsel on

       direct appeal. Specifically, Beason alleges appellate counsel was ineffective for

       “raising the issue of ineffective assistance of trial counsel on direct appeal and

       then raising it incompletely.” Brief of Appellant at 13.


[13]   The standard of review for a claim of ineffective assistance of appellate counsel

       is identical to that of ineffective assistance of trial counsel. Lowery v. State, 640

       N.E.2d 1031, 1048 (Ind. 1994), cert. denied, 516 U.S. 992 (1995). Beason must

       first demonstrate appellate counsel performed deficiently. Id. In this regard,

       Beason must overcome the strongest presumption that appellate counsel

       delivered adequate assistance and we are highly deferential to counsel’s

       selection and presentation of the issues. Ben-Yisrayl, 738 N.E.2d at 260-61.

       Second, Beason must show appellate counsel’s performance prejudiced him.

       Id. at 260. To establish the element of prejudice, Beason must show that there

       is a reasonable probability that, but for his appellate counsel’s unprofessional

       Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018   Page 18 of 26
       errors, the result of the proceeding would have been different. Id. A reasonable

       probability is a probability sufficient to undermine confidence in the outcome.

       Id.


[14]   Appellate counsel’s determination regarding the selection of issues and what

       arguments to raise is one of the most important strategic decisions made by

       counsel in that role. Id. at 261. Counsel must make difficult judgment calls in

       narrowing a broad range of possible claims to a select few that are thought to

       have the best opportunity for success. Woods v. State, 701 N.E.2d 1208, 1221

       (Ind. 1998), cert. denied, 528 U.S. 861 (1999). In narrowing the issues,

       potentially valid claims may be eliminated by strategic judgment so that the

       perceived strongest contentions are not diluted. Id. In assessing counsel’s

       performance and the strategic decision to include or exclude certain issues, this

       court defers to appellate counsel’s judgment unless the decision was

       “unquestionably unreasonable.” Ben-Yisrayl, 738 N.E.2d at 261. Therefore, to

       prevail on a claim of ineffective assistance of appellate counsel, Beason must

       demonstrate that, based on information known to appellate counsel from the

       trial record, appellate counsel failed to present significant and obvious issues

       that cannot be explained by any reasonable strategy. Id.


[15]   Finally, Beason effectively faces a compound burden in arguing appellate

       counsel was ineffective in raising the argument of ineffective assistance of trial

       counsel on direct appeal. To satisfy that compound burden, Beason must

       establish deficient performance and prejudice separately as to both appellate

       counsel and trial counsel. Id. at 261-62.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018   Page 19 of 26
[16]   Beason’s main complaint regarding the effectiveness of appellate counsel is the

       failure to raise the issue of trial counsel’s lack of preparation for trial. Beason

       alleges trial counsel’s lack of preparation manifested itself in numerous

       individual incidents of deficient performance and that appellate counsel’s

       performance was deficient in failing to completely raise this issue. However,

       Beason’s brief offers no discussion on how the alleged errors on behalf of trial

       or appellate counsel establish prejudice or a reasonable probability the result of

       the proceedings would have been different. Beason’s failure to address the issue

       of prejudice permits an uncomplicated disposition of the case notwithstanding

       the nature of the proceedings.


[17]   Moreover, we are not persuaded that appellate counsel’s selection and

       presentation of the issues in this case was “unquestionably unreasonable.” Id.

       at 261. At the post-conviction hearing, appellate counsel stated his belief that

       he presented the issues on appeal that had the best chance of success for Beason

       and he did not exclude any other valid issues of ineffective assistance of trial

       counsel. See Tr., Vol. I at 56, 68. Appellate counsel’s stated strategy on appeal

       was not to “throw everything up against the wall and to see what stuck . . . [his]

       general approach was to try to target the most significant . . . flaws and most

       significant . . . events of a trial that could be challenged . . . .” Id. at 62.


[18]   With respect to the incidents which Beason alleges appellate counsel should

       have also raised in his ineffective assistance of trial counsel claim, they are

       either meritless, not based in fact, or require more evidence to determine their

       truth. We address each of Beason’s concerns in turn.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018   Page 20 of 26
[19]   Beason argues appellate counsel was ineffective for failing to address trial

       counsel’s cross-examination of J.G. and K.G. Beason suggests trial counsel did

       not review videotapes of J.G.’s and K.G.’s prior statements to police until after

       they testified. Beason suggests the videotapes contain favorable impeachment

       evidence. However, the alleged videotapes of J.G. and K.G.’s prior statements

       were not entered into evidence and are not in the record before us. Thus,

       appellate counsel’s performance was not deficient in failing to raise this

       argument. See Seeley v. State, 782 N.E.2d 1052, 1061 (Ind. Ct. App. 2003)

       (holding appellate counsel’s performance was not deficient in failing to search

       for issues outside the record), trans. denied, cert. denied, 540 U.S. 1020 (2003).

       Moreover, the trial transcript strongly suggests trial counsel reviewed the

       videotapes before K.G. and J.G.’s testimony and appellate counsel was not

       ineffective in failing to raise this issue. See Record of Proceedings, Vol. 1 at

       177, 183-84 (trial court permitting trial counsel to view the tapes at lunch and

       arranging equipment and room for them to work in); Record of Proceedings,

       Vol. 4 at 802-03 (trial court and the State confirming trial counsel saw the

       videotapes).2


[20]   Beason next contends that appellate counsel should have included the issue of

       trial counsel’s failure to investigate his claims that J.G. and K.G. had made

       prior allegations of molestation in the past by “two other persons connected



       2
        We further note, because the videotapes are not in the record before us, the only account of their content is
       Beason’s testimony at the post-conviction hearing, which the post-conviction court was not required to
       believe. Daugherity v. State, 547 N.E.2d 1116, 1118 (Ind. Ct. App. 1989).

       Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018                Page 21 of 26
       with their mother.” Br. of Appellant at 19. He further suggests a 1992 medical

       examination contradicts the 1995 medical examination performed on J.G. and

       K.G. that concluded they suffered hymeneal injury. The results of the alleged

       medical examinations in 1992 were inconclusive. See Record of Proceedings,

       Vol. 4 at 1024. But again, no such medical report exists in the record before us

       and we decline to find appellate counsel ineffective for failing to search outside

       the record. Moreover, it appears the medical report to which Beason refers was

       conducted in response to allegations by J.G. and K.G. that he had molested

       them in 1992. Id. at 1014-24. Nonetheless, the evidentiary value of such a

       report is low. “Inconclusive” results in a medical examination would not

       demonstrate, as Beason appears to suggest, that J.G. and K.G. were lying or

       being untruthful in 1995. Nor would it show their underlying allegations

       against Beason in 1992 were demonstratively false. Appellate counsel was

       therefore not deficient in failing to include this issue on direct appeal.


[21]   Beason also contends appellate counsel performed deficiently in failing to

       address trial counsel’s failure to object to Final Jury Instruction No. 3. This

       instruction reads, “A conviction may be sustained by the uncorroborated

       testimony of a single witness.” Exhibits, Vol. 1 at 61. In 2003, our supreme

       court held the giving of this jury instruction is error after having been upheld

       since at least 1980. Ludy v. State, 784 N.E.2d 459, 460 (Ind. 2003). Beason’s

       trial was conducted in 1995 and we have held trial counsel is not ineffective for

       failing to anticipate changes in the law. Overstreet v. State, 877 N.E.2d 144, 161-

       62 (Ind. 2007) (holding “counsel’s representation cannot be deemed to have


       Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018   Page 22 of 26
       fallen below an objective standard of reasonableness for failing to anticipate a

       change in the law”), cert. denied, 555 U.S. 972 (2008). Accordingly, because

       appellate counsel is unlikely to have succeeded on this issue if it were raised, we

       decline to find appellate counsel’s exclusion of this issue constituted deficient

       performance.3


[22]   Finally, we address Beason’s contention that trial counsel was unprepared for

       trial. A significant portion of Beason’s brief addresses trial counsel’s lack of

       preparation for trial and a large portion of the transcript from the hearing the

       day prior to trial is quoted above in the “Facts and Procedural History.” From

       the transcript, it is clear trial counsel intended to leave the impression he needed

       more time to prepare for trial and we agree with Beason in this regard.


[23]   However, as repeatedly noted by the trial court, it was required to conduct

       Beason’s trial because he never withdrew his speedy trial request. The trial

       court explained at great length that the court’s calendar was congested and it

       would be several months, and outside of the seventy-day period for Indiana




       3
        Beason also alleges trial counsel “failed to object to State’s evidence of uncharged crimes committed by
       Beason.” Br. of Appellant at 19. This argument is unsupported by any citation to relevant case law, statute,
       or other authority and we accordingly find it to be waived. See Smith v. State, 822 N.E.2d 193, 202–03 (Ind.
       Ct. App. 2005) (“[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. Additionally,
       Beason takes issue with being present in the trial court on August 14, two days before his trial, without
       counsel. The trial court clarified to trial counsel the court was told he would be back from vacation on
       August 14 and the trial court had Beason brought to court in case trial counsel arrived. See Record of
       Proceedings, Vol. 1 at 133-35. The transcript from August 14 is not included in the record, but from what we
       can gather, the trial court simply tried to impress upon Beason they were going to trial unless he withdrew his
       speedy trial request. Beason did not do so until the jury was impaneled the next day and now complains of
       his trial counsel’s preparation.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018                Page 23 of 26
       Rule of Criminal Procedure 4, before Beason would be tried if the trial were to

       be continued. See Ind. Crim. Rule 4(B)(1); see also Jackson v. State, 663 N.E.2d

       766, 770 (Ind. 1996) (discharging a defendant for failing to bring him to trial

       within seventy days of his motion for a speedy trial).


[24]   Moreover, Beason never attempted to withdraw his request for a speedy trial

       until after a jury had been selected. See Record of Proceedings, Vol. 1 at 135.

       At that point, the trial court refused to grant a continuance. Beason was fully

       aware that trial counsel went on vacation prior to trial and would return shortly

       before the trial’s scheduled commencement, yet Beason still adamantly

       informed the trial court he wanted to go to trial and did not want to sit in jail

       awaiting a trial. Given the severity of the charges, Beason’s decision was ill-

       advised.


[25]   But, as the trial court stated, Beason cannot have it both ways. He demanded a

       speedy trial with full knowledge that his trial counsel would be absent the week

       before trial. Beason cannot place his trial counsel between a rock and a hard

       place and then complain following an adverse result. The trial court made it

       clear to Beason and trial counsel he would have granted a continuance had

       Beason signed the motion for a continuance. Beason never did and never

       requested to withdraw his speedy trial request until after a jury had been

       impaneled.


[26]   In sum, while Beason has brought numerous issues to our attention that he

       alleges constitute deficient performance on the part of appellate and trial


       Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018   Page 24 of 26
       counsel, many of the issues are meritless, brought about by his demand for a

       speedy trial, or require more evidence in the record before the post-conviction

       court and this court on appeal. This court defers to appellate counsel’s strategic

       judgment on issue selection and presentation unless it was “unquestionably

       unreasonable” and we cannot say appellate counsel performed deficiently on

       the issue of ineffective assistance of trial counsel. Ben-Yisrayl, 738 N.E.2d at

       261.


                                         B. Fundamental Error
[27]   Beason also claims the post-conviction court erred in denying his claim for

       relief alleging fundamental error. All of the issues which Beason claims amount

       to fundamental error were known and available at the time of direct appeal and

       are therefore waived. Timberlake, 753 N.E.2d at 597. Additionally, our

       supreme court has concluded freestanding claims of fundamental error may not

       be brought in a post-conviction relief proceeding. Sanders v. State, 765 N.E.2d

       591, 592 (Ind. 2002). The post-conviction court did not err in denying Beason’s

       claim of fundamental error.



                                                 Conclusion              4




       4
        Because of our resolution of the issue of ineffective assistance of appellate counsel, we do not address
       Beason’s challenge to the post-conviction court’s judgment that Beason’s petition was barred by the doctrine
       of laches.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018               Page 25 of 26
[28]   The post-conviction court did not err in denying Beason’s petition for post-

       conviction relief. Accordingly, we affirm the post-conviction court’s judgment.


[29]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018   Page 26 of 26
