                                                                FILED
MEMORANDUM DECISION                                        Aug 04 2016, 7:54 am


Pursuant to Ind. Appellate Rule 65(D),                          CLERK
                                                            Indiana Supreme Court
this Memorandum Decision shall not be                          Court of Appeals
                                                                 and Tax Court

regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael K. Ausbrook                                      Gregory F. Zoeller
Bloomington, Indiana                                     Attorney General of Indiana
                                                         Brian Reitz
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony Wheeler,                                         August 4, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A02-1509-PC-1436
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Respondent.                                     Lisa F. Borges, Judge
                                                         The Honorable
                                                         Anne Flannelly, Magistrate
                                                         Trial Court Cause No.
                                                         49G04-8808-PC-78324




Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1436 | August 4, 2016   Page 1 of 16
[1]   Anthony Wheeler (“Wheeler”) was convicted of and sentenced for two counts

      of criminal deviate conduct, as Class A felonies, two counts of burglary, as

      Class B felonies, and two counts of confinement, also as Class B felonies. His

      convictions were affirmed on appeal. Wheeler now appeals the denial of his

      successive petition for post-conviction relief contending that the post-conviction

      court erred in denying his petition and raises the following restated issues:


                I.     Whether Wheeler’s due process rights were violated when
                       he was sentenced to an enhanced and consecutive sentence
                       of ninety years; and


               II.     Whether Wheeler received ineffective assistance of his trial
                       counsel.


[2]   We affirm.


                                 Facts and Procedural History
[3]   The facts supporting Wheeler’s convictions as set forth by this court in an

      unpublished decision on his appeal of the denial of his first petition for post-

      conviction relief are as follows:

              [O]n June 22, 1988, the victim, S.M.A., was approached by
              Wheeler when she stopped to use the phone on her way home
              from work. Wheeler asked her for a cigarette. She gave him one
              and lit it for him and then went home.

              S.M.A. had intended to lay out in the sun in her backyard when
              she got home. Upon arriving home, she placed some pillows in
              her back yard. She went back inside to change into her bathing
              suit but did not lock the back door. As she came out of the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1436 | August 4, 2016   Page 2 of 16
        bathroom, she encountered Wheeler in the hallway. Wheeler
        had rope wrapped around both hands and was holding a knife.
        He grabbed S.M.A. by the neck and threw her back into the
        bathroom into the bathtub causing her to strike her head on the
        bathtub. Wheeler then forced her to commit an act of fellatio
        upon him. Next, he turned her around, pulled her bathing suit
        off, leaned her over the bathtub and raped her from behind. He
        ordered her to remain there for a few minutes as he was going to
        leave.

        S.M.A. did not report the above incident to the police. She
        stayed away from her home for approximately three weeks.
        Upon S.M.A.’s request, her landlord secured her windows by
        placing nails into the sills.

        On July 21, 1988, Wheeler broke into S.M.A.’s house late at
        night through a window and attacked S.M.A. as she lay there
        sleeping on the couch in the living room with her son. Wheeler
        threatened her with a knife and told her he would cut her throat
        if she made any noise that might wake up her boyfriend who was
        sleeping in the bedroom. He also threatened to kill her boyfriend
        if she should wake him up. Wheeler grabbed S.M.A. by the hair
        and forced her to commit an act of fellatio upon him. He then
        forced her to the floor and made her get down on all fours and
        raped her from behind. Wheeler then led S.M.A. by the arm into
        the kitchen and later had her walk him to the front door. S.M.A.
        did not resist because she feared further violence.

        Before leaving, Wheeler asked S.M.A. if he could return. She
        agreed to allow Wheeler to return the following Monday night
        after 8:00 p.m. She called the police the morning after the second
        attack. The police were present and arrested Wheeler when he
        arrived at S.M.A.’s home the following Monday night.


        On August 1, 1988, the State charged Wheeler with two counts
        of burglary as class B felonies (Counts I and V); two counts of

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1436 | August 4, 2016   Page 3 of 16
        criminal deviate conduct as class A felonies (Counts II and VI);
        two counts of confinement as class B felonies. (Counts IV and
        VIII). Counts I through IV stemmed from the incident on July
        21, 1988, and Counts V through VIII stemmed from the incident
        that occurred on June 22, 1988. Wheeler was eventually released
        on bond. On October 4, 1988, the State moved to revoke
        Wheeler’s bond, alleging as the basis therefrom that Wheeler had
        been arrested for an attempted rape on September 11, 1988.
        Following an evidentiary hearing, the trial court denied the
        State’s request to revoke Wheeler’s bond.

        Following a two-day jury trial that commenced on April 17,
        1989, Wheeler was found guilty as charged. At a May 12, 1989
        sentencing hearing, defense counsel asked the court to consider
        the fact that the charges against Wheeler stemming from the
        September 11 incident had been dismissed. In response, the State
        informed the court through the testimony of a deputy prosecutor
        that those charges were dismissed because of Wheeler’s
        convictions in the instant case and because of the victim’s
        reluctance to testify. The State pointed out that although the
        charges were dismissed the evidence against Wheeler was strong;
        noting specifically that the victim in the September 11 incident
        had identified Wheeler as her attacker. In setting forth the
        sentence imposed, the trial court stated:


                 I don’t think I can ignore the fact that again, while the
                 defendant was out on this particular matter, the 9/11/88
                 offense was committed. And as the Pre-Sentence
                 Investigation Report indicate [sic] the aggravating
                 circumstances certainly outweigh the mitigating in this
                 particular matter. The aggravating especially being as
                 outlined in the Pre-Sentence Investigation Report, namely,
                 that the defendant is in need of correctional rehabilitative
                 treatment that can best be provided by his commitment to
                 a penal facility; imposition of a reduced sentence would
                 depreciate the seriousness of the offence, and by reason of

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1436 | August 4, 2016   Page 4 of 16
                 those matters of aggravation, the court at this time, Mr.
                 Wheeler, will sentence you to the Indiana Department of
                 Corrections [sic].


        The trial court sentenced Wheeler to an aggregate term of ninety
        years—thirty-five years for each class A felony conviction and
        ten years for each class B felony conviction, with the sentences
        for the felony convictions resulting from each attack to run
        consecutively to each other and the two sets of four convictions
        (each set representing one attack) to run concurrently.

        On direct appeal, Wheeler’s appellate counsel presented the
        following issues for this court’s review: (1) Whether the trial
        court’s sentencing statement was sufficient to support the
        imposition of enhanced and consecutive sentences; (2) whether
        Wheeler’s ninety-year sentence was unconstitutional; (3) whether
        Wheeler received ineffective assistance of trial counsel; and (4)
        whether the evidence of penetration was sufficient to support
        Wheeler’s rape convictions. This court affirmed Wheeler’s
        convictions in a memorandum decision. As part of its analysis of
        Wheeler’s first sentencing claim, this court noted that “the trial
        court did state a specific fact which supported the imposition of
        enhanced and consecutive sentences – that Wheeler was arrested
        and charged with the ‘9/11/88 offense’ . . . .” Slip op. at 7.
        Our court docket and the trial court’s chronological case
        summary indicate that Wheeler, pro se, filed a petition for
        rehearing that was denied by this court and a petition for transfer,
        which our Supreme Court denied. On July 5, 2005, Wheeler
        filed a pro se petition for post-conviction relief. On January 2,
        2007, the State responded to Wheeler’s PCR petition, raising res
        judicata and laches as affirmative defenses. On April 6, 2009,
        Wheeler, by counsel, requested permission to amend Wheeler’s
        pro se petition for post-conviction relief. In his amended PCR
        petition, Wheeler claimed his appellate counsel was ineffective
        for failing to challenge the trial court’s finding that the September
        11 offenses were “committed” while Wheeler was out on bond in

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1436 | August 4, 2016   Page 5 of 16
        the present case. Wheeler maintains that this is an erroneous
        historical fact that could not have been used to support
        imposition of enhanced and consecutive sentences. The post-
        conviction court held evidentiary hearings on June 9, 2009 and
        January 19, 2010. Wheeler stipulated that he never requested
        assistance from the trial court or from his appellate counsel in
        filing his petitions for rehearing and transfer. Copies of
        Wheeler’s petitions for rehearing and transfer were not made part
        of the record in Wheeler’s PCR proceeding. The parties also
        stipulated to the admission of an affidavit from Wheeler’s
        appellate counsel in which counsel stated that he had no specific
        recollection of his handling of Wheeler’s appeal. On January 5,
        2011, the post-conviction court entered its order denying Wheeler
        his requested relief.


Wheeler v. State, No. 49A02-8907-CR-332, slip op. at *2-3. (Ind. Ct. App. Mar.

14, 1991); see also Wheeler v. State, No. 49A02-1101-PC-22, slip op. at *1-8 (Ind.

Ct. App. Sept. 2, 2011, reh’g denied, trans. denied. (internal citations omitted).


A panel of this court held as follows:

        . . . [W]e note that in deciding Wheeler’s sentencing claims, this
        court found that Wheeler had been “arrested and charged” with
        the September 11 offenses and that such had occurred while
        Wheeler was out on bond. This court did not find that Wheeler
        actually committed the offenses. This is a fair reading of the trial
        court’s sentencing statement. Further, the record is clear that all
        the parties and the trial court were aware that the charges had
        been dismissed because of the convictions in this case and the
        victim’s reluctance to testify. The argument Wheeler now seeks
        to put forth is unavailing as it requires a very narrow reading of
        parts of the record in isolation.


Id. at *4. The court continued:

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1436 | August 4, 2016   Page 6 of 16
        Moreover, even if appellate counsel had presented the argument
        in more explicit terms, Wheeler has not shown that his sentence
        would have been reversed. As noted above, it is clear from the
        record that the parties and the trial court were well aware that the
        charges against Wheeler for the September 11 incident had been
        dismissed. The State presented evidence during the sentencing
        hearing explaining that the charges were being dismissed in part
        because of the convictions in this case as well as the reluctance of
        the victim of the September 11 offenses to testify. [. . .] Wheeler
        does not deny the fact that he was arrested and charged for the
        September 11 incident and does not argue that such fact could
        not be considered as support for imposition of enhanced and
        consecutive sentences.


Id. at *5.


        Wheeler, by counsel Brent Westerfeld, pursued an appeal of the
        denial of his petition for post-conviction relief, regarding two of
        the PCR issues: (I) whether Wheeler’s appellate counsel was
        ineffective for failing to argue on direct appeal that the trial court
        had enhanced his sentence based on an impermissible factor,
        specifically that the trial court had relied upon “an erroneous
        historical fact . . . that while Wheeler was out on bond on his
        particular matter, the 9/11/88 offense was committed;” and (II)
        whether Wheeler’s appellate counsel was ineffective for failing to
        seek rehearing and/or transfer, arguing that appellate counsel (a)
        should have sought rehearing because the appellate court had
        made a misstatement of fact when it concluded that the trial
        judge had used the arrest and charge for the 9/11/88 offense as
        an aggravating circumstance when the trial judge instead had
        found that the 9/11/88 offense was committed while Wheeler
        was on bond in this case, and (b) should have sought rehearing
        and/or transfer in light of Tunstill v. State, 568 N.E.2d 539 (Ind.
        1991), decided two weeks after the appellate court’s decision in
        this case was handed down. The Indiana Court of Appeals
        affirmed the denial of post-conviction relief [citing that]

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1436 | August 4, 2016   Page 7 of 16
              Wheeler’s claim was “unavailing as it required a very narrow
              reading of the parts of the record in isolation.” The Indiana
              Supreme Court denied transfer on November 16, 2011.


      Appellant’s App. at 21-22. (internal citations omitted).


[4]   Wheeler, pro se, filed to expunge the record of his September 11, 1988 arrest in

      June of 2012. The petition was denied on June 15, 2012, but Wheeler filed a

      motion to correct error. Id. On September 5, 2012, the Indianapolis

      Metropolitan Police Department filed an objection to the petition. The trial

      court held a hearing on the motion to correct error on December 13, 2012 and

      ordered Wheeler’s September 11, 1988 arrest record expunged.

              On May 17, 2013, the Indiana Court of Appeals authorized
              Wheeler’s filing of a pro se successive petition for post-conviction
              relief. The successive petition was then filed with the post-
              conviction court on July 6, 2013, claiming as grounds for relief:
              (a) that he received ineffective assistance of trial, appellate, and
              post-conviction counsel pertaining to the 9/11/88 charge and
              arrest used as an aggravating circumstance at sentencing; (b) that
              the trial court abused its discretion in relying on a
              “misrepresentation of facts” in imposing enhanced and
              consecutive sentences resulting in a violation of due process
              rights; and (c) that recent expungement of the 9/11/88 arrest
              renders it impermissible to support the previously-imposed
              sentence.


      Appellant’s App. at 22.


[5]   Wheeler’s successive post-conviction relief evidentiary hearing was held on

      August 19, 2014. Id. All parties stipulated that Michael Siegel represented


      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1436 | August 4, 2016   Page 8 of 16
      Wheeler during his trial in this matter and that he was deceased and therefore

      not able to testify in the original post-conviction relief proceedings. Id. at 23.

      The post-conviction affidavit of Wheeler’s appellate counsel, Kenneth Roberts,

      reflects that he did not have any files regarding Anthony Wheeler and no

      independent recollection of his appeal. Id. at 24.


[6]   Brent Westerfeld (“Westerfeld”) represented Wheeler during his first PCR

      proceeding and testified at Wheeler’s successive PCR hearing that he and

      Wheeler challenged appellate counsel’s effectiveness and also raised a free-

      standing error regarding the aggravated sentence based on an act of which

      Wheeler had not been convicted. Id. at 25. Westerfeld testified that he

      attempted to find out whatever he could regarding the investigation of the

      September 11 incident. He looked through the entire prosecution file and tried

      to track down the complainant of the September 11 incident, but he could not

      locate her. Tr. at 41-42. Westerfeld could not talk to trial counsel as he had

      passed away, and appellate counsel had absolutely no memory of the case

      despite attempts to refresh his memory. Id. Westerfeld testified during the

      successive PCR hearing about his representation during Wheeler’s first post-

      conviction proceedings that he does not remember if he attempted to look at the

      court file for the September 11th incident, and his experience with dismissed

      cases is that the court files are destroyed and not microfilmed. Id. However, it

      is his practice to attempt to recover all documents related to a case. Id.


[7]   Westerfeld did not have an opinion regarding the expungement and whether he

      should have pursued one. Id. at 39. He explained that the argument he

      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1436 | August 4, 2016   Page 9 of 16
      pursued on behalf of Wheeler was that the trial court had incorrectly stated that

      Wheeler had committed the offense. Therefore, Westerfeld’s focus throughout

      was not whether Wheeler was arrested; a record of arrest for that offense was

      irrelevant according to Westerfeld. Appellant’s App. at 26.


[8]   Following Wheeler’s successive post-conviction proceeding, the court

      concluded that whether Wheeler received ineffective assistance of trial counsel

      was an issue raised, reviewed, and decided adversely to Wheeler in his direct

      appeal and first post-conviction relief proceeding . Appellant’s App. at 34. The

      successive post-conviction court also concluded that the post-conviction court

      properly found the claim unavailable due to res judicata. Id. Wheeler also

      claimed that his post-conviction relief counsel was ineffective. Id. The

      successive post-conviction court said that the Indiana Supreme Court has held

      that a claim of defective performance of post-conviction counsel “poses no

      cognizable grounds for post-conviction relief” and denied Wheeler’s claim

      again. Id. at 36.


[9]   In response to Wheeler’s claims that the post-conviction court abused its

      discretion in his first request for post-conviction relief, the successive post-

      conviction court concluded that the information used to aggravate Wheeler’s

      sentence was knowable and available at the time of trial, direct appeal, and the

      first post-conviction relief effort. Id. at 37. Furthermore, the trial court’s

      sentencing statement was reviewed by this court

              “to determine that it was sufficient to justify the imposition of
              enhanced and consecutive sentences, whether the court ignored
      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1436 | August 4, 2016   Page 10 of 16
               mitigating factor, whether the court’s consideration of the
               9/11/88 arrest was proper, and whether Wheeler’s sentence was
               unconstitutional as grossly out of proportion to the severity of the
               crimes constituting cruel and unusual punishment.”


       Id. at 38. Finding that this issue was examined and affirmed on direct appeal

       and in the first post-conviction relief, the successive post-conviction court

       determined that Wheeler’s right to bring those claims had been waived and

       further review was barred. Id. at 37-39.


[10]   The successive post-conviction court did not bar Wheeler’s claim that the

       aggravator involved in the September 11, 1988 charge and arrest relied upon by

       the sentencing court had recently been expunged from Wheeler’s arrest record,

       rendering the aggravating circumstances “impermissible as a matter of law to

       support the sentence.” That issue was unavailable at the time of Wheeler’s

       trial, direct appeal, and first post-conviction relief proceedings. Id. at 39.

       However, the successive post-conviction court concluded that: (1) Wheeler’s

       sentence included multiple aggravators and one is enough to aggravate a

       sentence; and (2) even when a trial court considers improper aggravators in

       imposing a sentence, the sentence will be affirmed if it is otherwise supported

       by a legitimate aggravator. Appellant’s App. at 39-40. The successive post-

       conviction court concluded that sufficient aggravators remained to support

       Wheeler’s sentence in the pre-sentence report and denied Wheeler post-

       conviction relief. Wheeler now appeals.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1436 | August 4, 2016   Page 11 of 16
                                      Discussion and Decision
[11]   Indiana has long deemed post-conviction proceedings to be collateral, quasi-

       civil and totally separate and distinct from the underlying criminal trial. Hall v.

       State, 849 N.E.2d 466, 472 (Ind. 2006). Post-conviction proceedings are not an

       opportunity for the petitioner to file a super appeal, but rather, present a chance

       to raise issues that were unknown or unavailable at the time of the original trial

       or direct appeal. Turner v. State, 947 N.E.2d 575, 581 (Ind. Ct. App. 2012),

       trans. denied. Post-conviction rules contemplate a “narrow remedy for subsequent

       collateral challenges to conviction.” Reed v. State, 856 N.E.2d 1189, 1194 (Ind.

       2006) (emphasis in original). Wheeler must establish his claims by a

       preponderance of the evidence. Ind. Post-Conviction Rule 1(5).


[12]   In reviewing the judgment of a post-conviction court, we consider only the

       evidence and reasonable inferences supporting the judgment. Hall v. State, 849

       N.E.2d 466, 468 (Ind. 2006). We cannot reweigh the evidence or reexamine

       the credibility of the witnesses. Id. at 468-69. The post-conviction court here

       made findings of fact and conclusions thereon, which “will be reversed only

       upon showing a clear error—that which leaves [this court] with a definite and

       firm conviction that a mistake has been made.” Hollowell v. State, 19 N.E.3d

       263, 268-69 (Ind. 2014) (citing Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.

       2000)).


[13]   Not all issues are available for post-conviction review. Timberlake v. State, 753

       N.E.2d 591, 597 (Ind. 2001) (citing Rouster v. State, 705 N.E.2d 999, 1003 (Ind.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1436 | August 4, 2016   Page 12 of 16
       1999)). For example, issues that were known and available, but not raised on

       direct appeal, are waived. Id. (citing Rouster, 705 N.E.2d at 1003). Moreover,

       issues that have already been raised, and decided adversely are res judicata. Id.

       (citing Rouster, 705 N.E.2d at 1003).


                                              I.       Due Process
[14]   Wheeler argues that his federal due process rights were violated because he was

       not sentenced on materially accurate information, and this case represents “an

       extreme malfunction in the state’s criminal justice system.” Appellant’s Br. at

       13. Wheeler contends that his now-expunged arrest record, regarding the

       September 11, 1988 incident, was the principle justification for Wheeler’s

       enhanced and consecutive sentence totaling ninety years. He also argues that

       the sentencing court did not give enough weight to his absolute lack of criminal

       history or arrest record under Loveless v. State, 624 N.E.2d 947, 976 (Ind. 1994)

       (stating that age and lack of delinquent or criminal record “deserve substantial

       mitigating weight”). We disagree.


[15]   Contrary to Wheeler’s claim, this case does not involve “an extreme

       malfunction in the state’s criminal justice system.” Appellant’s Br. at 13. Society

       has a large interest in ensuring the finality of convictions and upholding the

       integrity of the criminal justice system. Jackson v. State, 826 N.E.2d 120, 129

       (Ind. Ct. App. 2005), trans. denied. All parties, including Wheeler, were aware

       that the case from the September 11, 1988 incident was dismissed because the

       State had obtained eight other felony convictions and the victim was reluctant


       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1436 | August 4, 2016   Page 13 of 16
       to testify. The record shows the prosecution was also attempting to use

       resources responsibly by not over prosecuting Wheeler. Appellant’s App. at 30-

       31. Wheeler cannot now take advantage of the State’s discretion to avoid

       prosecutorial “over-kill” in not pursuing those charges. Id.


[16]   Even if Wheeler’s arrest record was expunged at the time of sentencing, the

       expungement would not have prevented the prosecution from discussing the

       September 11, 1988 incident. “Uncharged misconduct is a valid aggravator.”

       Singer v. State, 674 N.E.2d 11, 14 (Ind. Ct. App. 1996). The only case that

       Wheeler relied on for this point, Day v. State, 560 N.E.2d 641 (Ind. 1990),

       involved juvenile records, and did not mention expungement. In Day, our

       Supreme Court explained that when juvenile proceedings end without a

       disposition, “the mere fact that a petition was filed alleging delinquency does

       not suffice as proof of a criminal history.” Id. at 643. Even accepting the

       differences between the juvenile proceedings in Day and the adult proceedings

       here, Day can be distinguished further from the instant case because it did not

       involve expungement, but delinquency proceedings without a disposition. Id.

       Day does not change the fact that Wheeler’s conduct on September 11, 1988,

       could be a valid aggravating factor with or without expungement of that arrest

       record. Lockard v. State, 600 N.E.2d 985, 987-88 (Ind. Ct. App. 1992) (citing

       Hensley, 573 N.E.2d 913, 917 (Ind. Ct. App. 1991)).


[17]   Here, the pre-sentence investigation report included the following aggravating

       factors: Wheeler raped the same victim on two separate occasions; Wheeler

       threatened to kill both the victim and her boyfriend; Wheeler attacked the
       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1436 | August 4, 2016   Page 14 of 16
       victim while the victim’s young son was asleep in the same room; Wheeler

       stated that he believed he had consent despite breaking into the victim’s

       residence, threatening the victim, the victim having verbally refused; and

       Wheeler’s history of inappropriate sexual behavior to subordinates at work. Id.

       at 32. The fact that Wheeler was arrested while out on bond could have been

       used as an aggravating factor. Concepcion v. State, 567 N.E.2d 784, 791 (Ind.

       1991) (“[T]he nature of the crimes and the manner in which the crimes were

       committed may be considered as aggravating circumstances.”). Wheeler’s

       sentence would have likely been the same with or without the mention of his

       conduct on September 11, 1988.


                        II. Ineffective Assistance of Trial Counsel
[18]   Wheeler further contends that his trial counsel was ineffective because he failed

       to more fully investigate the circumstances surrounding the September 11, 1988

       incident. The State contends, and we agree that this claim is barred by res

       judicata. The doctrine of res judicata “prevents the repetitious litigation of that

       which is essentially the same dispute.” State v. Holmes, 728 N.E.2d 164, 168

       (Ind. 2000). Wheeler “cannot escape the effect of claim preclusion merely by

       using different language to phrase an issue and define the alleged error.” Ben-

       Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000).


[19]   Wheeler first raised ineffective assistance of trial counsel during his direct

       appeal proceedings, and the claim was litigated and decided adversely to

       Wheeler. Successive claims are barred by res judicata. Furthermore, as stated


       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1436 | August 4, 2016   Page 15 of 16
       above, expungement of the September 11, 1988 incident would likely not have

       changed Wheeler’s sentence, as there were multiple other aggravators to use.

       The post-conviction court did not err when it denied Wheeler’s successive

       petition for post-conviction relief.


[20]   Affirmed.


[21]   Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1436 | August 4, 2016   Page 16 of 16
