 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of
                                                                FILED
                                                              Jan 09 2013, 8:45 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.
                                                                     CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court




APPELLANT PRO SE:                                  ATTORNEYS FOR APPELLEE:
GERALD MICKENS                                     GREGORY F. ZOELLER
Michigan City, Indiana                             Attorney General of Indiana

                                                   GEORGE P. SHERMAN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

GERALD MICKENS,                                    )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
           vs.                                     )       No. 49A02-1112-PC-1162
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )

                     APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable Stanley E. Kroh, Judge Pro Tempore
                             Cause No. 49G03-9909-PC-166512


                                         January 9, 2013
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
         Gerald Mickens (“Mickens”) was convicted in Marion Superior Court of murder

and carrying a handgun without a license, and his convictions were affirmed on direct

appeal.     Mickens subsequently filed a petition for post-conviction relief alleging

ineffective assistance of trial and appellate counsel. The post-conviction court denied his

petition and Mickens appeals pro se.

         We affirm.

                               Facts and Procedural History

         Facts relevant to the issues presented in this appeal were set forth in Micken’s

direct appeal of his convictions and are as follows:

                The facts most favorable to the verdict revealed that in late March
         1999, sixteen-year-old Lanchester Whitlow (a.k.a.“Butter”) threatened to
         “beat up” eighteen-year-old Gerald Mickens (“Bolo”) if Mickens refused to
         pay off his debt to Whitlow. On the night of March 30, 1999, Mickens
         escorted his fifteen-year-old girlfriend, Sherea Upshaw, northbound on
         College Avenue to her home. Meanwhile, Whitlow and his sixteen-year-
         old friend, Marcus Lewis, walked southbound and encountered the couple.
                As the parties approached one another, no words were exchanged.
         Whitlow punched Mickens in the face once and Lewis struck him.
         Mickens then stepped back and drew a gun. Lewis had seen Mickens’ hand
         in his pocket earlier, but did not think anything of it until Mickens drew the
         gun. Lewis ran from Mickens when he saw the gun; Whitlow remained
         motionless. After hearing a shot, Lewis turned around in time to see
         Mickens fire a second shot in the vicinity of where Whitlow lay. Whitlow
         died from gunshot wounds to the head and abdomen.

Mickens v. State, 742 N.E.2d 927, 930 (Ind. 2001) (record citations omitted).

         Mickens was ordered to serve an aggregate forty-five year sentence for his murder

and carrying a handgun without a license convictions. He then pleaded guilty to being an

habitual offender, and his forty-five year sentence was enhanced by an additional thirty

years.

                                               2
       Mickens raised three issues on direct appeal: 1) the denial of his motion for

mistrial due to juror misconduct; 2) his claim that the State did not disprove his claim of

self-defense; and 3) his claim that his convictions for murder and carrying a handgun

without a license violated the Double Jeopardy Clause of the Indiana Constitution. Our

supreme court was not persuaded by Mickens’s claims of error and affirmed the trial

court in all respects.

       In November 2001, Mickens filed his first petition for post-conviction relief and

has filed subsequent petitions since. The petition at issue in this appeal is his amended

petition filed on February 9, 2010. In that petition, Mickens alleges that his trial counsel

was ineffective for 1) failing to object to the self-defense instruction tendered to the jury,

2) failing to investigate the victim’s involvement in drug or gang related activity, 3)

failing to locate and depose eyewitness James Ingram, and 4) failing to adequately

communicate a plea agreement offer to him. Mickens also alleges that his appellate

counsel was ineffective for 1) failing to challenge the self-defense instruction as

fundamental error, 2) failing to keep Mickens informed “of the decision-making process

of his defense,” and 3) failing to independently investigate Mickens’s “claims.”

Appellant’s App. p. 224.

       A hearing was held on Mickens’s petition on March 1, 2011. Mickens’s trial

counsel, James Ingram, and Mickens testified at the hearing, but appellant counsel did not

testify. On December 1, 2011, the post-conviction court issued findings of fact and

conclusions of law, determining that Mickens failed to establish that his trial and

appellate counsel were ineffective. The court therefore denied Mickens’s petition for

                                              3
post-conviction relief. Mickens now appeals. Additional facts will be provided as

necessary.

                                   Standard of Review

       Post-conviction proceedings are not “super appeals” through which convicted

persons can raise issues they failed to raise at trial or on direct appeal. McCary v. State,

761 N.E.2d 389, 391 (Ind. 2002). Rather, post-conviction proceedings afford petitioners

a limited opportunity to raise issues that were unavailable or unknown at trial and on

direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). A post-conviction

petitioner bears the burden of establishing grounds for relief by a preponderance of the

evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). On appeal from the denial

of post-conviction relief, the petitioner stands in the position of one appealing from a

negative judgment. Id. To prevail on appeal from the denial of post-conviction relief, the

petitioner must show that the evidence as a whole leads unerringly and unmistakably to a

conclusion opposite that reached by the post-conviction court. Id. at 643-44.

       Where, as here, the post-conviction court makes findings of fact and conclusions

of law in accordance with Indiana Post–Conviction Rule 1(6), we do not defer to the

court's legal conclusions, but “the findings and judgment will be reversed only upon a

showing of clear error—that which leaves us with a definite and firm conviction that a

mistake has been made.” Id. at 644.

                                Discussion and Decision

       Mickens argues that the post-conviction court erred when it concluded that he did

not receive ineffective assistance of trial and appellate counsel. To prevail on a claim of

                                             4
ineffective assistance of counsel, Mickens must show both that counsel’s performance

fell below an objective standard of reasonableness and that the deficient performance

prejudiced him. Coleman v. State, 694 N.E.2d 269, 272 (Ind. 1998) (citing Strickland v.

Washington, 466 U.S. 668 (1984)). There is a strong presumption that counsel rendered

adequate assistance. Id. “Evidence of isolated poor strategy, inexperience or bad tactics

will not support a claim of ineffective assistance.” Id. at 273.

       To establish the prejudice prong of the test, the petitioner must show there is a

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

proceeding would have been different. Sims v. State, 771 N.E.2d 734, 741 (Ind. Ct. App.

2002), trans. denied. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. “Prejudice exists when the conviction or sentence

resulted from a breakdown in the adversarial process that rendered the result of the

proceeding fundamentally unfair or unreliable.” Coleman, 694 N.E.2d at 272. This

standard applies to both claims of ineffective assistance of trial and appellate counsel.

Rhoiney v. State, 940 N.E.2d 841, 845 (Ind. Ct. App. 2010), trans. denied.

       A. Trial Counsel

       Mickens argues that his trial counsel was ineffective for failing to object to the

self-defense instruction tendered to the jury, failing to procure the testimony of

eyewitness James Ingram, and failing to adequately advise Mickens of the possibility of

the State filing a murder charge during their discussion of the State’s plea offer.




                                              5
              1. The Self-Defense Jury Instruction

       The self-defense instruction tendered to the jury was, at all times during Mickens’s

trial and appellate proceedings, the pattern jury instruction on self-defense.           The

instruction included a list of reasons a person would not be justified in using force against

another person. Approximately two weeks after our supreme court decided Mickens’s

direct appeal, the court decided Mayes v. State, 744 N.E.2d 390 (Ind. 2001).

       In that case, the court specifically addressed whether the jury should have been

instructed that a “person is not justified in using force if . . . [h]e is committing, or is

escaping after the commission] of[,] a crime[.]” Id. at 392. The court observed that “[a]

literal application of the contemporaneous crime exception would nullify claims for self-

defense in a variety of circumstances and produce absurd results in the process.” Id. at

393. The court then held:

       We conclude that because a defendant is committing a crime at the time he
       is allegedly defending himself is not sufficient standing alone to deprive the
       defendant of the defense of self-defense. Rather, there must be an
       immediate causal connection between the crime and the confrontation.
       Stated differently, the evidence must show that but for the defendant
       committing a crime, the confrontation resulting in injury to the victim
       would not have occurred.

Id. at 394. However, the court concluded that tendering the self-defense instruction to the

jury was not erroneous because it correctly stated the law, it was not covered by other

instructions, and the State presented evidence to support giving the instruction. Id. at

394-95.




                                             6
        The pattern instruction at issue in this case was a correct statement of the law.

However, after Mayes, the instruction was not a complete statement of the law.1 Even so,

we cannot conclude that trial counsel was ineffective for failing to challenge the

instruction. An attorney is not required to anticipate changes in the law in order to be

considered effective. Smylie v. State, 823 N.E.2d 679, 690 (Ind. 2005)

        Even more importantly, any error in tendering the instruction to the jury did not

prejudice Mickens. Mickens shot the victim causing him to fall to the ground and then

shot the victim a second time. “Errors in the giving or refusing of instructions are

harmless where a conviction is clearly sustained by the evidence and the jury could not

properly have found otherwise. When danger of death or great bodily harm ceases, the

right of self-defense ceases with it.” Fuentes v. State, 952 N.E.2d 275, 279 (Ind. Ct. App.

2011) (citations omitted). After Mickens shot the victim once, any threat to Mickens had

been neutralized, and his right to self-defense ceased. Because the second shot fatally

undercuts his claim of self-defense, Mickens cannot establish that he was prejudiced by

any error in the instruction. For these reasons, we cannot conclude that trial counsel was

ineffective for failing to object to the instruction.




1
  See Henderson v. State, 795 N.E.2d 473, 479-80 (Ind. Ct. App. 2003) (addressing a challenge to a
similar self-defense instruction and stating “the instruction given was a correct statement of the law as
was determined by our Supreme Court in Mayes. Nonetheless, in line with the reasoning of the
concurring opinion in Mayes, the instruction as given was an incomplete statement of the law because it
did not explain to the jury that a causal connection between the crime and the confrontation was necessary
in order to preclude a finding of self-defense. Had the trial court amended the instruction to include the
suggestion of Henderson as stated in his objection, the instruction would have still been correct and would
have been a more complete statement of the law.”).
                                                    7
              2. Ingram’s testimony

       Next, we consider whether trial counsel was ineffective for failing to procure the

testimony of eyewitness James Ingram. Generally, “in the context of an ineffective

assistance claim, ‘a decision regarding what witnesses to call is a matter of trial strategy

which an appellate court will not second-guess.’” Curtis v. State, 905 N.E.2d 410, 415

(Ind. Ct. App. 2009) (quoting Johnson v. State, 832 N.E.2d 985, 1003 (Ind. Ct. App.

2005), trans. denied); see also Wrinkles v. State, 749 N.E.2d 1179, 1200 (Ind. 2001)

(stating “[w]hich witnesses to call is the epitome of a strategic decision.”) (citation and

quotation marks omitted).

       Ingram was driving by in his van when the shooting occurred and saw the shooter

flee the scene. Ingram did not testify at trial. At the post-conviction hearing, Ingram

testified that he noticed Mickens and the victim arguing. Tr. p. 31. Ingram heard three

gunshots, observed Mickens with the gun in his hand, looking toward the ground, and

backing away from the victim. Id. at 37. He then saw the “kid with the gun” flee the

scene. Id. at 31. Ingram gave a statement to the police after the shooting, but his address

was listed incorrectly on his statement.     Trial counsel testified that he would have

reviewed Ingram’s statement but could not recall whether he had issued a subpoena for

him, or why he declined to call Ingram as a witness at trial. Tr. pp. 13-14.

       Mickens claims that if the jury had heard Ingram’s testimony that he heard three

gunshots fired one after the other, “the jury very well could have inferred that Mickens

did act in self-defense[.]” Appellant’s Br. at 15. After reviewing Ingram’s testimony at

the post-conviction hearing, we cannot conclude that his testimony would have supported

                                             8
Mickens’s claim of self-defense. As such, Mickens cannot establish that the result of his

trial would have been different. For all of these reasons, we conclude that trial counsel

was not ineffective for failing to procure Ingram’s testimony at trial.

              3. Plea Agreement Offer

       Finally, Mickens argues that his trial counsel was ineffective for failing to

adequately communicate a plea agreement offer to Mickens for the original reckless

homicide charge. Mickens’s recollection of the plea agreement was that he would agree

to plead guilty to reckless homicide and receive a twenty-year sentence. Trial counsel

testified that he conveyed the plea agreement offer to Mickens, explained the agreement,

and discussed it with him.

       Mickens agreed that trial counsel discussed the plea agreement offer with him. Tr.

p. 42. Mickens stated that it was presented to him on September 22, 1999, and that he

had “mixed emotions about the plea.” Tr. p. 43. He stated that he planned to ask trial

counsel if “he could do anything else, and if he couldn’t I was going to take the plea.” Id.

But two days later, on September 24, 1999, the State withdrew its offer and dismissed the

reckless homicide charge, and subsequently filed the murder charge.

       Mickens argues that trial counsel’s “failure to convey the possibility of a Murder

charge belies the correct and well-advised opportunity of Mickens to take the plea for

twenty years offered by the State to him prior to trial.” Appellant’s Br. at 15. But

Mickens has not presented any evidence to establish that either he or trial counsel knew

the State was contemplating filing a murder charge. But the converse is also true, it is

entirely possible that both Mickens and his trial counsel knew that filing a murder charge

                                              9
was a possibility, particularly under the facts of this case. The record is silent on this

issue. Importantly, there is also no evidence that trial counsel advised Mickens to reject

the State’s plea offer.2 For all of these reasons, Mickens has not established that he was

prejudiced by trial counsel’s performance during the plea bargaining process.

        B. Appellate Counsel

        Mickens argues that his appellate counsel was ineffective for failing to argue that

the self-defense instruction subjected him to fundamental error. Our supreme court has

recognized three types of ineffective assistance of appellate counsel: (1) denial of access

to appeal; (2) failure to raise issues that should have been raised; and (3) failure to present

issues well. Wrinkles v. State, 749 N .E.2d 1179, 1203 (Ind. 2001).

        When a petitioner claims the denial of effective assistance of appellate
        counsel because counsel did not raise issues the petitioner argues should
        have been raised, reviewing courts should be particularly deferential to
        counsel’s strategic decision to exclude certain issues in favor of others,
        unless such a decision was unquestionably unreasonable. But this does not
        end our analysis. Even if we determine that counsel’s choice of issues was
        not reasonable, a petitioner must demonstrate a reasonable probability that
        the outcome of the direct appeal would have been different in order to
        prevail.

Taylor v. State, 840 N.E.2d 324, 338 (Ind. 2006) (citations and quotation marks omitted).

We must determine “(1) whether the unraised issues are significant and obvious from the

face of the record; and (2) whether the unraised issues are clearly stronger than the raised

issues.” Gray v. State, 841 N.E.2d 1210, 1214 (Ind. Ct. App. 2006) (citation omitted),

trans. denied.

2
 For these reasons, the facts of this case are readily distinguishable from those in Lafler v. Cooper, 132
S.Ct. 1376 (2012), which Mickens cites to in his brief, but does not argue how it should be applied to his
case.
                                                   10
        Like trial counsel, “[a]ppellate counsel cannot be held ineffective for failing to

anticipate or effectuate a change in the existing law.” Donnegan v. State, 889 N.E.2d 886,

893 (Ind. Ct. App. 2008), trans. denied. Moreover, had appellate counsel challenged the

instruction as fundament error, counsel would not have prevailed. Like the circumstances,

presented in Mayes, the evidence supported giving the instruction because it was for the

jury to determine whether there was a causal connection between Mickens’s possession

of the unlicensed handgun and the victim’s death.                See Mayes 744 N.E.2d at 394.

Furthermore, as we stated above, the fact that Mickens shot the victim twice clearly

undercuts his claim of self-defense. Therefore, had the issue been raised on direct appeal,

Mickens could not have established that he was prejudiced by any error in the instruction.

We therefore conclude that the trial court properly determined that Mickens’s appellate

counsel was not ineffective.3

        For all of these reasons, we conclude that the trial court did not err when it denied

Mickens’s petition for post-conviction relief.

        Affirmed.

KIRSCH, J., and CRONE, J., concur.




3
  Mickens attempts to argue that trial counsel’s alleged failure to “conduct any meaningful pretrial
investigation and to properly present the defendant’s case” should be imputed to appellate counsel.
Appellant counsel cannot be ineffective these alleged deficiencies. See Wrinkles, 749 N.E.2d at 1203
(describing appellate counsel’s acts or omissions that are considered ineffective assistance of counsel).
                                                   11
