MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Nov 15 2017, 9:38 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
Danny Smith                                             Curtis T. Hill, Jr.
Branchville, Indiana                                    Attorney General of Indiana
                                                        Jesse R. Drum
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Danny Smith,                                            November 15, 2017
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        07A01-1606-PC-1379
        v.                                              Appeal from the Brown Circuit
                                                        Court
State of Indiana,                                       The Honorable Judith A. Stewart,
Appellee-Respondent.                                    Judge
                                                        Trial Court Cause No.
                                                        07C01-1012-PC-437



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 07A01-1606-PC-1379 | November 15, 2017           Page 1 of 21
                               STATEMENT OF THE CASE
[1]   Appellant-Petitioner, Danny Smith (Smith), appeals the post-conviction court’s

      denial of his petition for post-conviction relief.


[2]   We affirm.


                                                  ISSUES
[3]   Smith presents us with six issues on appeal, which we consolidate and restate as

      follows:


          (1) Whether he received ineffective assistance from trial counsel; and

          (2) Whether he received ineffective assistance of appellate counsel.


                      FACTS AND PROCEDURAL HISTORY
[4]   The relevant facts, as set forth in this court’s memorandum opinion issued in

      Smith’s direct appeal, are as follows:


              On December 7, 2006, Robert L. Smith left his house located in
              Brown County, Indiana, sometime in the early afternoon. When
              he left his house, Robert closed the door. As Robert returned to
              his house approximately one-half hour later and pulled into his
              driveway, he noticed a maroon Ford Explorer which he did not
              recognize parked near the front door of the house. Robert noted
              the license plate number of the Explorer. As Robert drove his
              vehicle closer to the house, Smith exited the front door of the
              house with a coat over his head. Smith got into the Explorer,
              backed up a short distance, and then kind of just took off down
              the yard, toward the road. Robert initially attempted to cut off
              the Explorer with his own vehicle, and when the Explorer got to



      Court of Appeals of Indiana | Memorandum Decision 07A01-1606-PC-1379 | November 15, 2017   Page 2 of 21
        the road, Robert stopped his vehicle, took out his gun, and shot
        at the Explorer.


        After the Explorer drove away, Robert reloaded his gun and
        stayed behind a cedar tree in the front lawn of his house because
        he thought that there may have been another person in his house.
        Robert eventually checked around the outside of the house and
        woods and in each room of his house to make sure that no other
        person remained in the area or in the house. Robert discovered
        that the house was trashed. Robert contacted law enforcement
        and provided a description of the Explorer and its license plate
        number. At some point, Robert discovered that a camcorder was
        missing from his house.


        Information related to the burglary and a description of the
        Explorer was dispatched to officers in Brown County and its
        surrounding counties. Indiana State Police Trooper Justin Butler
        received the dispatch information at approximately 3:00 p.m. and
        positioned himself near the 52 mile marker in the area along
        Interstate 65 near an overpass. A few minutes later, Trooper
        Butler observed a Ford Explorer matching the description
        provided by dispatch traveling southbound on I-65. Trooper
        Butler followed the Explorer and verified that the license plate of
        the Explorer matched the dispatch information. The Explorer
        exited I-65 at Exit 50, traveled westward about three-fourths of
        one mile, and then pulled into a gas station.


        Trooper Butler activated the emergency lights of his police
        vehicle and initiated a traffic stop. After he approached the
        Explorer and asked Smith for his driver’s license and registration,
        Smith stated that his driver’s license was suspended and that he
        did not have any identification on him. Trooper Butler returned
        to his vehicle and verified that Smith’s driver’s license was indeed
        suspended with a prior conviction. Trooper Butler and another
        officer who had arrived at the scene then placed Smith in custody
        and gave him a Miranda advisement. Smith stated that he had
Court of Appeals of Indiana | Memorandum Decision 07A01-1606-PC-1379 | November 15, 2017   Page 3 of 21
              been in Franklin, Indiana, with a friend. An inventory of the
              Explorer included a black sweatshirt.


              At some point, Detective Steve Brahaum of the Brown County
              Sheriff’s Department arrived at the gas station. Detective
              Brahaum took custody of Smith, placed him in his police vehicle,
              and relayed through the dispatch to have someone pick up the
              Explorer. Detective Brahaum then transported Smith to the
              Brown County Sheriff’s Department located in Nashville,
              Indiana. During the trip to the Sheriff’s Department, Smith
              asked Detective Brahaum how he could get his vehicle back and
              whether the case was about a burglary. Detective Brahaum then
              read Smith his Miranda rights and Smith indicated that he
              understood. Smith then initiated a conversation and asked
              Detective Brahaum several other questions, including questions
              related to the time frame of the burglary, if anything had been
              taken in the burglary, and how he was identified.

                                            ****
              A subsequent investigation by the detectives at the Brown
              County Sheriff’s Department revealed that tire tracks in the yard
              in front of Robert’s house matched the tires of the Explorer
              driven by Smith.

      Smith v. State, 2010 WL 1486968 (Ind. Ct. App. Apr. 14, 2010).


[5]   On December 2, 2006, the State filed an Information, charging Smith with

      burglary, as a Class B felony, and driving while suspended, as a Class A

      misdemeanor. On January 22, 2007, the State amended its charging

      Information to add an allegation that Smith was an habitual offender. During

      the course of proceedings, Smith had three different court-appointed trial

      attorneys. However, at a preliminary hearing on November 19, 2008, Smith

      indicated that he wanted to represent himself at his jury trial, which the trial

      court permitted after appointing his then-current attorney as standby counsel.


      Court of Appeals of Indiana | Memorandum Decision 07A01-1606-PC-1379 | November 15, 2017   Page 4 of 21
[6]   On November 19, 2008, Smith’s jury trial commenced. During his opening

      statement, Smith changed his mind and indicated that he would need his trial

      attorney to represent him after all. The trial court held a proceeding outside the

      presence of the jury, after which it was determined that Smith’s court-appointed

      attorney would represent him for the remainder of the trial. At the conclusion

      of the three-day trial, the jury found Smith guilty of burglary, as a Class B

      felony, and driving with a suspended license, as a Class A misdemeanor. At a

      bifurcated hearing, Smith admitted to being an habitual offender. On January

      12, 2009, Smith was sentenced to eleven years for burglary, which was

      enhanced by twenty years for the habitual offender adjudication, and one year

      for driving while suspended, to be served concurrently with the burglary

      sentence. Smith appealed. On appeal, Smith raised one issue as to whether the

      trial court committed fundamental error in tendering an alibi instruction to the

      jury. On April 14, 2010, after review, we affirmed the trial court.


[7]   On December 8, 2010, Smith filed a petition for post-conviction relief, which

      was subsequently amended. On January 22, 2016, the post-conviction court

      conducted an evidentiary hearing, and denied Smith’s petition on May 20,

      2016.


[8]   Smith now appeals. Additional facts will be provided when necessary.


                              DISCUSSION AND DECISION
                                            I. Standard of Review



      Court of Appeals of Indiana | Memorandum Decision 07A01-1606-PC-1379 | November 15, 2017   Page 5 of 21
[9]    Under the rules of post-conviction relief, the petitioner must establish the

       grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

       Rule 1, § 5; Strowmatt v. State, 779 N.E.2d 971, 974-75 (Ind. Ct. App. 2002). To

       succeed on appeal from the denial of relief, the post-conviction petitioner must

       show that the evidence is without conflict and leads unerringly and

       unmistakably to a conclusion opposite that reached by the post-conviction

       court. Id. at 975. The purpose of post-conviction relief is not to provide a

       substitute for direct appeal, but to provide a means for raising issues not known

       or available to the defendant at the time of the original appeal. Id. If an issue

       was available on direct appeal but not litigated, it is waived. Id.


[10]   Initially, we note that Smith proceeded pro se on appeal. While Smith has every

       right to represent himself in legal proceedings, a pro se litigant is nevertheless

       held to the same standard as a trained attorney and is afforded no inherent

       leniency simply by virtue of being self-represented. See Zavodnik v. Harper, 17

       N.E.2d 259, 266 (Ind. 2014). This also means that pro se litigants are bound to

       follow the established rules of procedure and must be prepared to accept the

       consequences of their failure to do so. Shepherd v. Truex, 819 N.E.2d 457, 463

       (Ind. Ct. App. 2004). These consequences include waiver for failure to present

       a cogent argument on appeal and adherence to Indiana Appellate Rule

       46(A)(8). Here, Smith’s appellate brief consists of thirty pages without an

       appropriate statement of the case or statement of the facts and without a single

       reference to the record, appendix, or transcript. While we prefer to decide

       issues on the merits, where the appellant’s noncompliance with appellate rules

       Court of Appeals of Indiana | Memorandum Decision 07A01-1606-PC-1379 | November 15, 2017   Page 6 of 21
       is so substantial as to impede our consideration of the issues, we may deem the

       alleged errors waived. Id. Although we would be justified to waive Smith’s

       issues on appeal, we will nevertheless attempt to address his arguments.

       However, we refuse to comb through the record or transcript to find evidence to

       support his allegations as we will not become an “advocate for a party, or

       address arguments that are inappropriate or too poorly developed or expressed

       to be understood.” Id.


                                     II. Ineffective Assistance of Counsel


[11]   Smith contends that he was denied the effective assistance of both trial and

       appellate counsel. The standard by which we review claims of ineffective

       assistance of counsel is well established. In order to prevail on a claim of this

       nature, a defendant must satisfy a two-pronged test, showing that: (1) his

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

       on prevailing professional norms; and (2) there is a reasonable probability that,

       but for counsel’s errors the result of the proceeding would have been different.

       Jervis v. State, 28 N.E.3d 361, 365 (Ind. Ct. App. 2015) (citing Strickland.v

       Washington, 466 U.S. 668, 690, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) reh’g

       denied), trans. denied. The two prongs of the Strickland test are separate and

       distinct inquiries. Id. Thus, “if it is easier to dispose of an ineffectiveness claim

       on the ground of lack of sufficient prejudice . . . that course should be

       followed.” Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001) (quoting

       Strickland, 466 U.S. at 697) reh’g denied; cert. denied, 537 U.S. 839, 123 S.Ct. 162,

       154 L.Ed.2d 61 (2002).

       Court of Appeals of Indiana | Memorandum Decision 07A01-1606-PC-1379 | November 15, 2017   Page 7 of 21
[12]   Counsel is afforded considerable discretion in choosing strategy and tactics and

       we will accord those decisions deference. Jervis, 28 N.E.3d at 365. A strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment. Id.

       The Strickland court recognized that even the finest, most experienced criminal

       defense attorney may not agree on the ideal strategy or the most effective way

       to represent a client. Id. Isolated mistakes, poor strategy, inexperience, and

       instances of bad judgment do not necessarily render representation ineffective.

       Id. Furthermore, we will not speculate as to what may or may not have been

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

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


                                                A. Trial Counsel


                                         1. Habitual Offender Charge


[13]   First, Smith contends that his trial counsel was ineffective for failing to object to

       the State’s amendment of the habitual offender charge. To enhance Smith’s

       sentence for being an habitual offender, the State had to prove that Smith had

       incurred two prior, unrelated felony convictions. Ind. Code § 35-50-2-8(A). As

       such, in its initial Information, the State alleged that Smith had six prior

       unrelated felonies: possession of methamphetamine in 2004, theft in 2000,

       escape in 1993, escape and criminal confinement in 1989, and burglary in 1989.

       On April 18, 2008, the State moved to amend the Information by striking

       Smith’s 1989 escape and criminal confinement convictions on the basis that


       Court of Appeals of Indiana | Memorandum Decision 07A01-1606-PC-1379 | November 15, 2017   Page 8 of 21
       these two convictions were “not unrelated to another conviction alleged.”

       (Appellant’s App. Vol. II, p. 49).


[14]   Pursuant to Indiana Code section 35-34-1-5(b), the State must make

       amendments of substance to the charging information thirty days before the

       omnibus date. However, the State may make amendments to the information

       with respect to any defect, imperfection, or omission in form which does not

       prejudice the substantial rights of the defendant at any time. I.C.§ 35-34-1-5(c).


               An amendment is one of form and not of substance if a defense
               under the original information would be equally available after
               the amendment and the accused’s evidence would apply equally
               to the information in either form. Further, an amendment is of
               substance only if it is essential to making a valid charge of the
               crime.


       Fajardo v. State, 859 N.E.2d 1201, 1205 (Ind. 2007). When the State amended

       Smith’s habitual offender Information by striking two prior felony convictions

       which could have been used to support the enhancement, the State made an

       amendment in form to the charging Information.


[15]   By amending the charging Information in form, the State actually increased its

       own burden in establishing the habitual offender enhancement. As pointed out

       by the State, under the initial Information, the State could rely on fifteen

       combinations of felony pairs to support the habitual charge, whereas after the

       amendment was filed, only six pairs remained. Even if trial counsel’s failure to

       object could be characterized as falling below an objective standard of

       reasonableness, Smith cannot establish that he was prejudiced by this omission.
       Court of Appeals of Indiana | Memorandum Decision 07A01-1606-PC-1379 | November 15, 2017   Page 9 of 21
                                            2. Failure to Investigate


[16]   Next, Smith asserts that his trial counsels were deficient because all three

       counsels “failed to investigate and raise a defense” which Smith felt necessary

       to be pursued. (Appellant’s Br. p. 11). Smith maintains that he “gave all

       counsel information, names of witnesses to be deposed, discovery he knew was

       being withheld by the State, the fact that he believed the victim and his

       residence was a drug house leading to his false allegation against him, as well as

       other things, only to be ignored[.]” (Appellant’s Br. p. 11). The post-conviction

       court summarily concluded that Smith “failed to support or give proof of such

       prejudice.” (PCR Order p. 8).


[17]   While it is undisputed that effective representation requires adequate pretrial

       investigation and preparation, it is equally well settled that we should resist

       judging an attorney’s performance with the benefit of hindsight. McKnight v.

       State, 1 N.E.3d 193, 200 (Ind. Ct. App. 2013). Accordingly, when presented

       with a claim of ineffective assistance for failure to investigate, we apply a great

       deal of deference to counsel’s judgments. Boesch v. State, 778 N.E.2d 1276, 1283

       (Ind. 2002).


               [S]trategic choices made after thorough investigation of law and
               facts relevant to plausible options are virtually unchallengeable;
               and strategic choices made after less than complete investigation
               are reasonable precisely to the extent that reasonable professional
               judgments support the limitation on investigation. In other
               words, counsel has a duty to make reasonable investigations or to
               make a reasonable decision that makes particular investigations
               unnecessary.

       Court of Appeals of Indiana | Memorandum Decision 07A01-1606-PC-1379 | November 15, 2017 Page 10 of 21
       Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. In addition, establishing failure

       to investigate as a ground for ineffective assistance of counsel requires going

       beyond the trial record to show what the investigation, if undertaken, would

       have produced. Woods v. State, 701 N.E.2d 1208, 1214 (Ind. 1998), cert. denied,

       528 U.S. 861 (1999). “This is necessary because success on the prejudice prong

       of an ineffectiveness claim requires a showing of a reasonable probability of

       affecting the result.” Id.


[18]   The record reflects that Smith’s subsequent trial counsels filed pretrial motions,

       filed a notice of alibi, deposed witnesses, requested and reviewed discovery

       materials, tendered jury instructions, cross-examined witnesses, moved for a

       judgment on the evidence, challenged jury instructions, and presented a closing

       argument. While Smith’s argument appears to focus on his self-serving

       allegation that the victim’s house was a drug house, Smith did not present any

       evidence to support this contention. Moreover, police officers testified outside

       the presence of the jury that the victim had never been the target of a drug

       investigation and that the officer had no inclination to believe that the victim

       was involved with drugs or people who were involved with drugs at the time of

       the burglary. Accordingly, we conclude that Smith failed to establish that his

       trial counsels’ conduct fell below an objective standard of reasonableness.


                                             3. Conflict of Interest


[19]   At the outset, it should be pointed out that Smith alleged a conflict of interest

       with each trial attorney that represented him. With respect to his first two trial


       Court of Appeals of Indiana | Memorandum Decision 07A01-1606-PC-1379 | November 15, 2017 Page 11 of 21
       counsels, Smith asserts that they continued to represent him after he had asked

       counsel to withdraw; however, Smith now fails to establish how he was

       prejudiced by their conduct.


[20]   With respect to his third trial counsel, Smith contends that he “wouldn’t do

       anything that I wanted him to do to investigate this case unless I would agree to

       meet him in a room and have sex with him.” (PCR Tr. p. 20). Upon

       evaluating Smith’s self-serving testimony during the post-conviction

       proceeding, the post-conviction court concluded that “the testimony flies in the

       face of [Smith’s] own testimony during the trial proceedings as well as other

       evidence and indications in the record.” (PCR Order p. 12). As the post-

       conviction court is “the sole judge of the weight of the evidence and the

       credibility of witnesses,” we affirm the post-conviction court and conclude that

       Smith’s third trial counsel was not ineffective with respect to Smith’s conflict of

       interest allegation. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).


                                          4. Suppression of Evidence


[21]   Next, Smith asserts that his trial counsels were ineffective for failing to move to

       suppress evidence seized during the search of his vehicle and statements made

       after invoking his Miranda rights. The post-conviction court rejected these

       arguments as Smith did “not demonstrate[] that such motions would have been

       successful, as is warranted here.” (PCR Order p. 9).


[22]   The evidence presented indicates that upon Smith’s arrest, his vehicle was

       searched pursuant to an inventory search. As part of their community-

       Court of Appeals of Indiana | Memorandum Decision 07A01-1606-PC-1379 | November 15, 2017 Page 12 of 21
       caretaking function, police officers may impound a vehicle because it is

       abandoned and obstructs traffic. See Wilford v. State, 50 N.E.3d 371, 375 (Ind.

       2016). Upon impounding the vehicle, the officers must “perform an

       administrative inventory search to document the vehicle’s contents to preserve

       them for the owner and protect themselves against claims of lost or stolen

       property.” Id. at 374. Here, police officers placed Smith under arrest after they

       determined his license had been suspended. Once in custody, and before

       impounding the Explorer, the officers performed a general inventory search

       pursuant to the department’s standard operating procedure. Accordingly, we

       cannot say with reasonable probability that, even if counsel would have moved

       to suppress the evidence discovered pursuant to the inventory search, he would

       have been successful. See Strickland, 466 U.S. at 690.


[23]   We reach a similar result with respect to Smith’s Miranda contention. Smith

       asserts that police officers continued to pressure him for a statement after he

       had invoked his right to counsel. It is generally acknowledged that once a

       person in custody has requested counsel, he “is not subject to further

       interrogation by authorities until counsel has been made available to him,

       unless the accused himself initiates further communication, exchanges, or

       conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).

       The record reflects that while Smith initially asked for counsel after being read

       his Miranda rights, he himself subsequently initiated a conversation with the

       officer in the officer’s vehicle. Although his trial counsel considered objecting

       to the admission of Smith’s statements, after listening to the recording from the


       Court of Appeals of Indiana | Memorandum Decision 07A01-1606-PC-1379 | November 15, 2017 Page 13 of 21
       officer’s vehicle, counsel conceded that “it appears [Smith] was the one who

       initiated conversation in the car.” (Direct Appeal Tr. p. 585). Accordingly, as

       Smith cannot establish that his trial counsel’s performance fell below an

       objective standard of reasonableness by deciding not to file a motion to suppress

       after listening to the recorded conversation, we find that trial counsel was

       effective.


                                             5. Challenge to Venue


[24]   Next, Smith contends that his trial counsel was ineffective for failing to

       challenge venue with respect to the driving while suspended charge. Because

       the victim, who was located in Brown County, could not identify him, Smith

       alleges that the jury trial on his driving while suspended charge should not have

       been conducted in Brown County, but should have been conducted in the

       county where he was ultimately arrested.


[25]   The State has the burden to prove venue by a preponderance of the evidence.

       Baugh v. State, 801 N.E.2d 629, 631 (Ind. 2004). While the victim could not

       identify Smith as the burglar, there is sufficient evidence placing Smith at the

       victim’s home in Brown County. First, the victim saw the burglar drive away

       through his yard and wrote down the license plate of the Explorer. This license

       plate and tire marks left in the yard, both corresponded with the license plate

       and the tire marks of the Explorer driven by Smith. Accordingly, Smith failed

       to establish that his trial attorney performed deficiently by not challenging

       venue as this challenge would have been meritless.


       Court of Appeals of Indiana | Memorandum Decision 07A01-1606-PC-1379 | November 15, 2017 Page 14 of 21
                                             6. Jury’s Impartiality


[26]   Smith argues that “trial counsel failed to object to the voir dire and the sworn

       jury, protecting his client’s right to a fair trial by an unbiased and impartial

       jury.” (Appellant’s Br. p. 16). We hasten to point out that Smith acted pro se

       and conducted his own voir dire of the jury. “[A] defendant who elects to

       represent himself cannot thereafter complain that the quality of his own defense

       amounted to a denial of effective assistance of counsel.” Faretta v. California,

       422 U.S. 806, 834 n.46 (1975).


[27]   With respect to the jury trial proceeding itself, Smith asserts that trial counsel

       was ineffective by failing to object to distinct behavior by panel members. At a

       certain point in the trial, the trial court called a sidebar and indicated that it

       thought “one of our jurors is snoring at times.” (Direct Appeal Tr. p. 526).

       Upon consultation with trial counsel, Smith’s counsel agreed that the jury

       should take a break. In order to move for a mistrial based on an inattentive

       juror, it must be established that “the juror was actually inattentive and the

       juror’s inattention resulted in actual prejudice.” Chubb v. State, 640 N.E.2d 44,

       48 (Ind. 1994). Merely “falling asleep for a short time does not necessarily

       constitute a sufficient cause for a new trial absent a convincing explanation as

       to why the alleged behavior deprived the defendant of his rights.” Id. In his

       appellate brief, Smith fails to present any evidence that the juror was actually

       asleep or the duration he was sleeping. Therefore, as he cannot establish with a

       reasonable probability that a motion for mistrial would have been granted, trial

       counsel was not ineffective.

       Court of Appeals of Indiana | Memorandum Decision 07A01-1606-PC-1379 | November 15, 2017 Page 15 of 21
[28]   A similar contention is brought with respect to a juror who asked for a break to

       change the battery in his or her hearing aid. Smith likewise did not establish

       that the juror could not hear the proceedings or what the juror might have

       missed. Therefore, as Smith does not establish prejudice, we cannot say that

       trial counsel was deficient.


                                  7. Deposition and Subpoena of Witnesses


[29]   Lastly, Smith alleges that he “needed the assistance of counsel to depose twelve

       (12) witnesses to prepare for trial, and he was never given the opportunity to

       depose these witnesses.” (Appellant’s Br. p. 18). He also asserts that his trial

       counsel did not properly cross-examine the victim and should have impeached

       the victim for lying under oath.


[30]   As a general rule, “an attorney’s failure to call any particular witness or any

       witnesses at all, is not proof of incompetent representation without further proof

       of harm resulting therefrom.” Robertson v. State, 319 N.E.2d 833, 835 (Ind.

       1974). In order to demonstrate prejudice, Smith must “show that other

       potential witnesses would have provided . . . evidence which would have

       assisted in . . . [his] defense.” Stewart v. State, 517 N.E.2d 1230, 1233 (Ind.

       1988). Despite formulating some generalized statements, Smith failed to

       present or direct us to any evidence supporting his claims. Accordingly, trial

       counsel did not provide ineffective assistance of counsel.


                                             B. Appellate Counsel



       Court of Appeals of Indiana | Memorandum Decision 07A01-1606-PC-1379 | November 15, 2017 Page 16 of 21
[31]   Our standard of review for claims of ineffective assistance of appellate counsel

       is the same as for trial counsel’s ineffectiveness. Fisher, 810 N.E.2d at 676.

       Indiana law recognizes three basic categories for claims of appellate counsel’s

       ineffectiveness: “(1) denial of access to an appeal; (2) waiver of issues; and (3)

       failure to present issues well.” Id. at 677 (citing Bieghler v. State, 690 N.E.2d

       188, 193-95 (Ind. 1997), cert. denied, 525 U.S. 1021, 119 S.Ct. 550, 142 L.Ed.2d

       457 (1998)). Here, Smith presents this court with issues which all are within the

       province of the second category and which will lead to a finding of deficient

       performance only when the reviewing court determines that the omitted issues

       were significant, obvious, and “clearly stronger than those presented.” Id. at

       194. “[T]he decision of what issues to raise is one of the most important

       strategic decisions to be made by appellate counsel. Id. at 193.


                                              1. Alibi Instruction


[32]   Turning to his appellate counsel, Smith first asserts that the jury instruction

       with respect to his alibi, appealed by appellate counsel as under a fundamental

       error theory, should have been raised as a preserved error and, therefore, her

       conduct was prejudicial and ineffective.


[33]   The record reflects that while trial counsel did file a notice of alibi with the trial

       court on January 15, 2008, subsequent trial counsel did not propose to tender a

       jury instruction on the alibi. Therefore, as trial counsel had not raised the jury

       instruction before the trial court, appellate counsel appropriately characterized




       Court of Appeals of Indiana | Memorandum Decision 07A01-1606-PC-1379 | November 15, 2017 Page 17 of 21
       the issue as one of fundamental error. Accordingly, appellate counsel did not

       provide ineffective assistance.


                                    2. Perceived Errors by Trial Counsel


[34]   Next, in one-line arguments, Smith contends that his appellate counsel was

       ineffective for failing to raise the lack of venue on the driving while suspended

       Count, and for failing to raise the juror bias and conduct issues. Because we

       already determined that trial counsel was not ineffective on these issues,

       appellate counsel cannot be found ineffective for failing to raise meritless

       claims.


                                          3. Motion for Continuance


[35]   Smith also argues that his appellate counsel was ineffective because she failed to

       challenge the trial court’s denial of his motion for continuance. Deciding to

       represent himself on the morning of the jury trial, Smith requested a

       continuance so as to prepare himself for trial. After the State objected, the trial

       court denied Smith’s motion.


[36]   The decision to grant or deny a motion for a continuance is within the sound

       discretion of the trial court. Litherland v. McDonnell, 796 N.E.2d 1237, 1240

       (Ind. Ct. App. 2003), trans. denied. To succeed on this issue, appellate counsel

       would have to establish that the trial court abused its discretion by denying

       Smith’s motion for a continuance when Smith had shown good cause for

       granting the motion. See id.


       Court of Appeals of Indiana | Memorandum Decision 07A01-1606-PC-1379 | November 15, 2017 Page 18 of 21
               The matter of continuance is traditionally within the discretion of
               the trial judge, and it is not every denial of a request for more
               time that violates due process even if the party fails to offer
               evidence or is compelled to defend without counsel. Contrawise,
               a myopic insistence upon expeditiousness in the face of a
               justifiable request for delay can render the right to defend with
               counsel an empty formality. There are no mechanical tests for
               deciding when a denial of a continuance is so arbitrary as to
               violate due process. The answer must be found in the
               circumstances present in every case, particularly in the reasons
               presented to the trial judge at the time the request was denied.


       Ungar v. Sarafite, 376 U.S. 575, 589-590, 84 S.Ct. 841, 849-850, 11 L.Ed.2d 921

       (1964) (citations omitted), reh’g denied. “[A]mong the things to be considered

       on appeal from the denial of a motion for continuance, we must consider

       whether the denial of a continuance resulted in the deprivation of counsel at a

       crucial stage in the proceedings.” Hess v. Hess, 679 N.E.2d 153, 154 (Ind. Ct.

       App. 1997). We also consider whether the record demonstrates dilatory tactics

       on the part of the movant designed to delay coming to trial. See id. at 155.


[37]   On the morning of trial, Smith requested his trial attorney to withdraw because

       Smith was not convinced that his trial attorney was prepared for trial, despite

       his trial counsel’s assurances to the contrary. Smith wanted to represent himself

       and requested more time to interview witnesses because “[t]here is clearly

       evidence that this case might be drug related.” (Direct Appeal Tr. p. 103-04).

       We find that the trial court was within its discretion to deny Smith’s motion as

       this motion merely constituted a dilatory tactic. Smith’s case had been pending

       for almost two years. He was represented by his third trial counsel and his


       Court of Appeals of Indiana | Memorandum Decision 07A01-1606-PC-1379 | November 15, 2017 Page 19 of 21
       motion was at least his seventh request to continue his jury trial. Therefore, as

       this issue is not clearly stronger than the one raised on direct appeal, we

       conclude that appellate counsel was not deficient in failing to bring this issue

       before the appellate tribunal.


                                              4. Other Allegations


[38]   Smith also contends that the State committed a Brady violation because it

       improperly withheld certain evidence that could have exculpated him. See

       Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (the

       prosecution is mandated to disclose evidence that is favorable to the defendant).

       Specifically, Smith asserts that testimony by a certain witness at trial establishes

       that a taped police interview existed that “was never turned over to the defense

       who required it to impeach this witness[.]” (Appellant’s Br. p. 24). Similarly,

       Smith alleges that certain other evidence—such as fingerprint evidence and

       criminal records—although requested by him prior to trial, was never turned

       over. By Smith’s own admission, this issue was known at the time of the direct

       appeal and therefore cannot now be raised by a post-conviction proceeding. See

       Collins v. State, 817 N.E.2d 230, 232 (Ind. 2004) (“[B]ecause a post-conviction

       relief proceeding is not a substitute for direct appeal but rather a process for

       raising issues unknown or not available at trial, an issue known and available

       but not raised on direct appeal may not be raised in post-conviction

       proceedings”).




       Court of Appeals of Indiana | Memorandum Decision 07A01-1606-PC-1379 | November 15, 2017 Page 20 of 21
[39]   Likewise, Smith asserts that (1) the State committed prosecutorial misconduct;

       and (2) he was not tried by an impartial and competent jury. Both of these

       claims were known and available during the direct appeal in this case and

       therefore cannot now be raised. See id.


                                            CONCLUSION
[40]   Based on the forgoing, we conclude that the post-conviction court properly

       denied Smith’s petition for relief as he was not represented by ineffective

       counsel.


[41]   Affirmed.


[42]   Robb, J. and Pyle, J. concur




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