      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                          FILED
      regarded as precedent or cited before any                                 Sep 26 2019, 8:51 am
      court except for the purpose of establishing                                   CLERK
      the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                                    Court of Appeals
      estoppel, or the law of the case.                                               and Tax Court




      APPELLANT, PRO SE                                        ATTORNEYS FOR APPELLEE
      Kevin L. Martin                                          Jamie C. Woods
                                                               Christopher S. Riley
                                                               Thorne Grodnik, LLP
                                                               Mishawaka, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Kevin Martin,                                            September 26, 2019
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               19A-CT-1126
              v.                                               Appeal from the St. Joseph Circuit
                                                               Court
      Arvil R. Howe,                                           The Honorable John Broden,
      Appellee-Defendant.                                      Judge
                                                               Trial Court Cause No.
                                                               71C01-1803-CT-123



      Pyle, Judge.


                                       Statement of the Case
[1]   Kevin Martin (“Martin”), pro se, appeals the trial court’s grant of summary

      judgment in favor of attorney Arvil Howe (“Howe”) in Martin’s legal

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1126 | September 26, 2019                 Page 1 of 5
      malpractice action. Because the issue of ineffective assistance of counsel was

      decided unfavorably to Martin and affirmed on appeal, the trial court properly

      granted summary judgment in favor of Howe.


[2]   We affirm.


                                                     Facts
[3]   The State charged Martin with murder in July 2006. Howe was Martin’s public

      defender at trial. A jury convicted Martin as charged in February 2007, and the

      trial court sentenced him to sixty-five (65) years. In the appeal of his conviction

      and sentence, Martin argued that Howe was ineffective. This Court disagreed

      with Martin and concluded that Howe was not ineffective. See Martin v. State,

      No. 71A03-0707-CR-323 (Ind. Ct. App. Dec. 31, 2007), trans. denied.


[4]   In June 2008, Howe filed a petition for post-conviction relief wherein he again

      argued that Howe was ineffective. In its order denying Martin’s petition in

      December 2017, the post-conviction court explained as follows:


              The issue of ineffectiveness of trial counsel was raised on direct
              appeal and therefore the Court of Appeals’ finding that trial
              counsel was not ineffective is res judicata as to this issue and he




      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1126 | September 26, 2019   Page 2 of 5
               may not re-litigate it in a PCR proceeding.[1] See Timberlake v.
               State, 753 N.E.2d 591, 602 (Ind. 2001).[2]


      (Appellee’s App. Vol. 2 at 14-15). Martin appealed the denial of his post-

      conviction petition, and this Court dismissed the appeal with prejudice in May

      2018.


[5]   In January 2018, during the pendency of his post-conviction appeal, Martin

      filed a legal malpractice complaint against Howe. Howe filed a summary

      judgment motion, which the trial court granted. In its order granting Howe’s

      motion, the trial court concluded that because the post-conviction court had

      previously determined that Howe was not ineffective, the doctrine of claim

      preclusion barred subsequent litigation of the issue, including Martin’s claims

      against Howe in the legal malpractice action. Martin now appeals the trial

      court’s grant of Howe’s summary judgment motion.


                                                       Decision
[6]   At the outset, we note that Martin proceeds pro se. A litigant who proceeds pro

      se is held to the same rules of procedure that trained counsel is bound to follow.

      Smith v. Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert.




      1
[1]     The post-conviction court alternatively concluded that Howe was not ineffective. Specifically, the post-
      conviction court explained that Martin had not met his burden of proof to show that Howe was ineffective.
      According to the post-conviction court, Martin’s questioning of Howe at the post-conviction hearing had developed
      no facts supporting Martin’s allegations and Martin had offered no other evidence supporting his claim.

      2
       In Timberlake, the Indiana Supreme Court explained that where Timberlake raised an ineffective assistance of
      counsel claim on direct appeal, and the Indiana Supreme Court considered and rejected it, res judicata barred
      Timberlake from relitigating the issue in post-conviction proceedings. Timberlake, 753 N.E.2d at 602.


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1126 | September 26, 2019                    Page 3 of 5
      dismissed. One risk a litigant takes when he proceeds pro se is that he will not

      know how to accomplish all the things an attorney would know how to

      accomplish. Id. When a party elects to represent himself, there is no reason for

      us to indulge in any benevolent presumption on his behalf or to waive any rule

      for the orderly and proper conduct of his appeal. Foley v. Mannor, 844 N.E.2d

      494, 502 (Ind. Ct. App. 2006). We will not become an advocate for the party or

      address arguments that are too poorly developed or expressed to be understood.

      Basic v. Amouri, 58 N.E.3d 980, 984 (Ind. Ct. App. 2016). We now turn to the

      merits of Martin’s appeal.


[7]   Martin argues that the trial court erred in granting Howe’s summary judgment

      motion. We review an order for summary judgment de novo, which is the

      same standard of review applied by the trial court. Ind. Restorative Dentistry, P.C.

      v. Laven Ins. Agency, Inc., 27 N.E.3d 260, 264 (Ind. 2015). The moving party

      must “affirmatively negate an opponent’s claim” by demonstrating that the

      designated evidence raises no genuine issue of material fact and that the moving

      party is entitled to judgment as a matter of law. Id. The burden then shifts to

      the nonmoving party to demonstrate a genuine issue of material fact. Id.


[8]   In deciding whether summary judgment is proper, we consider only the

      evidence the parties specifically designated to the trial court. Ind. Trial Rule

      56(C), (H). We construe all factual inferences in favor of the nonmoving party

      and resolve all doubts regarding the existence of a material issue against the

      moving party. Carson v. Palombo, 18 N.E.3d 1036, 1041 (Ind. 2014). Where

      material facts are not in dispute, the issue is the application of the law to the

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1126 | September 26, 2019   Page 4 of 5
       facts. Belford v. McHale Cook & Welch, 648 N.E.2d 1241, 1244 (Ind. Ct. App.

       1995), trans. denied.


[9]    In Belford, this Court explained that, as a matter of law, where “[t]he issue of

       ineffective assistance of counsel was decided unfavorably to [Belford] and

       affirmed” on appeal, the trial court properly granted summary judgment in

       favor of the attorney in Belford’s legal malpractice claim. Id. This is because a

       finding that counsel was not ineffective provides the necessary identity of issues

       to preclude a malpractice action stemming from the same proceedings. Id. at

       1245 (citing Hockett v. Breunig, 526 N.E.2d 995, 999-1003 (Ind. Ct. App. 1988))

       (Shields, J., concurring).


[10]   Here, as in Belford, the issue of ineffective assistance of counsel was decided

       unfavorably to Martin and affirmed on appeal. Accordingly, here, as in Belford,

       the trial court properly granted summary judgment in favor of Howe on

       Martin’s legal malpractice claim. See also Williams v. Maschmeyer, 870 N.E.2d

       1069, 1071 (Ind. Ct. App. 2007) (holding that where “the question whether

       [Williams’] trial counsel provided ineffective assistance [of counsel] was

       litigated in Williams’ post-conviction petition[,]” it may not be relitigated in a

       legal malpractice case).


[11]   Affirmed.


       Robb, J. and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1126 | September 26, 2019   Page 5 of 5
