Pursuant to Ind.Appellate Rule 65(D),
                                                                Jun 18 2013, 6:25 am
this Memorandum Decision shall not be
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.



APPELLANT PRO SE:                                 ATTORNEYS FOR APPELLEE:

DAVID LAUTENSCHLAGER                              GREGORY F. ZOELLER
Carlisle, Indiana                                 Attorney General of Indiana

                                                  GEORGE P. SHERMAN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

DAVID LAUTENSCHLAGER,                             )
                                                  )
       Appellant-Petitioner,                      )
                                                  )
              vs.                                 )      No. 49A04-1211-PC-653
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Respondent.                       )


                     APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Mark D. Stoner, Judge
                    The Honorable Jeffrey L. Marchal, Master Commissioner
                              Cause No. 49G06-0304-PC-64421



                                         June 18, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       David Lautenschlager appeals the post-conviction court’s denial of his petition for

post-conviction relief.   Lautenschlager raises a single issue for our review, namely,

whether the post-conviction court erred when it concluded that Lautenschlager had not

been denied the effective assistance of trial counsel. We affirm.

                      FACTS AND PROCEDURAL HISTORY

       In a memorandum decision on Lautenschlager’s direct appeal, we described the

facts underlying his convictions as follows:

       Preet Singh operates a Sunoco gas station on West Washington Street in
       Indianapolis, Indiana. On the evening of February 5, 2003, Singh was
       training a new employee, Freddie Miller, when a man entered the gas
       station and demanded money. Singh recognized the man as a patron of the
       gas station and thought he was joking until the man displayed a gun. Miller
       gave the man all of the money in the cash register, but the man demanded
       more. Singh and Miller gave him the money from their wallets. The man
       told Singh and Miller he would kill them if they called the police. He then
       took cigarettes and a lighter as he left the gas station. Miller called 911.
              On February 17, 2003, Singh was working alone at the gas station
       when the same man returned and robbed him at gunpoint again. Both
       Singh and the company which monitored a panic alarm at the station
       contacted the police.
              The police obtained the security surveillance tapes of both incidents.
       The investigation led to the production of a six-person photo array that
       included Lautenschlager’s photograph.              Marion County Sheriff’s
       Department Detective Michael Hornbrook met with Miller on April 9,
       2003, and Miller selected Lautenschlager’s photo from the array as the
       robber. Detective Hornbrook showed the array to Singh the following day,
       and Singh also selected Lautenschlager’s photo. The State then charged
       Lautenschlager with three counts of robbery as Class B felonies for being
       armed with a deadly weapon. He was also alleged to be an habitual
       offender. The jury found Lautenschlager guilty of the three counts of
       robbery. Lautenschlager waived jury trial of the habitual count, and the
       court adjudged him an habitual offender. Lautenschlager was ordered to
       serve an aggregate sentence of forty years. . . .



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Lautenschlager v. State, No. 49A02-0410-CR-838, slip op. at 2-3 (Ind. Ct. App. July 27,

2005) (footnote omitted), trans. denied (“Lautenschlager I”).

       On September 11, 2006, Lautenschlager filed his petition for post-conviction

relief, which he amended on August 19, 2010. In his amended petition, Lautenschlager

asserted that he had been denied the effective assistance of trial counsel for numerous

reasons. The post-conviction court held an evidentiary hearing on Lautenschlager’s

petition and, on May 24, 2012, the court entered findings of fact and conclusions of law

denying Lautenschlager’s petition. This appeal ensued.

                            DISCUSSION AND DECISION

                                        Overview

       Lautenschlager appeals the post-conviction court’s denial of his petition for post-

conviction relief. Our standard of review is well established:

       [The petitioner] bore the burden of establishing the grounds for post-
       conviction relief by a preponderance of the evidence. See Ind. Post-
       Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d 591, 597 (Ind.
       2001). Post-conviction procedures do not afford a petitioner with a super-
       appeal, and not all issues are available. Timberlake, 753 N.E.2d at 597.
       Rather, subsequent collateral challenges to convictions must be based on
       grounds enumerated in the post-conviction rules. Id. If an issue was
       known and available, but not raised on direct appeal, it is waived. Id. If it
       was raised on appeal, but decided adversely, it is res judicata. Id.

              In reviewing the judgment of a post-conviction court, appellate
       courts consider only the evidence and reasonable inferences supporting the
       post-conviction court’s judgment. Hall v. State, 849 N.E.2d 466, 468 (Ind.
       2006). The post-conviction court is the sole judge of the evidence and the
       credibility of the witnesses. Id. at 468-69. Because he is now appealing
       from a negative judgment, to the extent his appeal turns on factual issues
       [the petitioner] must convince this court that the evidence as a whole leads
       unerringly and unmistakably to a decision opposite that reached by the
       post-conviction court. See Timberlake, 753 N.E.2d at 597. We will disturb


                                             3
       the decision only if the evidence is without conflict and leads only to a
       conclusion contrary to the result of the post-conviction court. Id.

Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied.

       Lautenschlager’s arguments on appeal are premised on his theory that he was

denied the effective assistance of trial counsel. A claim of ineffective assistance of

counsel must satisfy two components. Strickland v. Washington, 466 U.S. 668 (1984).

First, the defendant must show deficient performance: representation that fell below an

objective standard of reasonableness, committing errors so serious that the defendant did

not have the “counsel” guaranteed by the Sixth Amendment. Id. at 687-88. Second, the

defendant must show prejudice: a reasonable probability (i.e., a probability sufficient to

undermine confidence in the outcome) that, but for counsel’s errors, the result of the

proceeding would have been different. Id. at 694. We afford counsel considerable

discretion in choosing strategy and tactics, and “‘[i]solated mistakes, poor strategy,

inexperience, and instances of bad judgment do not necessarily render representation

ineffective.’” State v. Hollin, 970 N.E.2d 147, 151 (Ind. 2012) (quoting Timberlake, 753

N.E.2d at 603) (alteration original to Hollin).

       Here, Lautenschlager alleges he was denied the effective assistance of counsel for

six reasons, which we consolidate into the following four arguments: (1) his trial counsel

failed to seek the removal of a potentially biased juror; (2) his counsel failed to call a

video identification expert; (3) his counsel failed to cross-examine witnesses regarding

Singh’s in-court identification of Lautenschlager; and (4) his counsel failed to establish

the lead detective’s bias, Lautenschlager’s alibi defense, and Lautenschlager’s use of

prescription medications during trial. We address each of these four arguments in turn.
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                                        Juror Removal

       Lautenschlager first asserts that his trial counsel was ineffective because he did not

seek the removal of a potentially biased juror.         In order to succeed on this issue,

Lautenschlager must show that his counsel’s objection to the juror’s presence would have

been successful. See, e.g., Danks v. State, 733 N.E.2d 474, 489 (Ind. Ct. App. 2000).

During Lautenschlager’s trial, the juror in question informed the court that he had been

interviewed in another case by the State’s lead detective in Lautenschlager’s case. In

response to ensuing questions from the court, the juror stated that he did not think that

there was “anything about [his] contact with [the detective] . . . that would cause [the

juror] to lose [his] ability to be fair and impartial.” Trial Transcript at 197.

       It is well established that “timely disclosure of a juror’s casual relationship with a

witness or a party, coupled with an assertion that the juror will remain impartial,

adequately protect a defendant’s right to an impartial jury.” McCants v. State, 686

N.E.2d 1281, 1285 (Ind. 1997). Accordingly, had Lautenschlager’s counsel objected to

the juror’s continued service, his objection would not have been successful. Thus,

Lautenschlager cannot demonstrate ineffective assistance on this issue.

                                       Expert Witness

       Lautenschlager next asserts that his trial counsel was ineffective because he failed

to call a video identification expert to assess the quality of the gas station’s security

videos. “[W]e do not second-guess strategic decisions requiring reasonable professional

judgment even if the strategy or tactic, in hindsight, did not best serve the defendant’s

interests.” State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997).


                                               5
       At the evidentiary hearing before the post-conviction court, Lautenschlager’s trial

counsel testified that he did not call an expert to analyze the security videos because,

instead, he submitted to the jury an FBI report in which the FBI had concluded the videos

were “essentially inconclusive.” P-C Transcript at 69. The FBI’s report was stipulated to

by the State, and Lautenschlager’s trial counsel testified that he “made a strategic

decision” to use the FBI report “in lieu of live testimony.” Id. at 70. We will not second

guess counsel’s strategic decision, and, as such, Lautenschlager cannot demonstrate that

his counsel was ineffective on this issue.

                                    Cross-Examination

       Lautenschlager next asserts that his trial counsel failed to cross-examine several

witnesses on Singh’s eyewitness identification of Lautenschlager.          During Singh’s

testimony at trial, the State asked Singh if he recognized the robber in court. Singh was

equivocal, and the State had him dismissed. But, upon leaving the witness stand, Singh

recognized Lautenschlager as the robber. The State then recalled Singh as a witness, and

Singh testified accordingly.

       In his brief in this appeal, Lautenschlager alleges that, between leaving the witness

stand and being recalled, Singh “not only spoke with the prosecutor, he also talke[d] with

police officers that had been involved in the case.”       Appellant’s Br. at 16.     Thus,

Lautenschlager, continues, his trial counsel rendered ineffective assistance when he failed

to “cross-examine[] the police officers that Mr. Singh spoke with during that time, in

order to determine whether or not the question of identification came up during those

conversations.” Id.


                                             6
          Lautenschlager cannot demonstrate reversible error on this issue. At the post-

conviction court’s evidentiary hearing, Lautenschlager did not call any of the police

officers Singh allegedly spoke with at trial to testify before the post-conviction court.

Neither does Lautenschlager demonstrate where in the record he elicited any testimony

before the post-conviction court on this alleged issue. Lautenschlager’s speculation is not

sufficient to demonstrate reversible error. Lindsey, 888 N.E.2d at 322.

                                         Other Claims

          Finally, Lautenschlager asserts that his trial counsel inadequately established the

lead detective’s bias, Lautenschlager’s alibi defense, and Lautenschlager’s use of

prescription medications during trial.             However, as Lautenschlager candidly

acknowledges: “Admittedly, Appellant failed to present evidence in support of these

claims.” Appellant’s Br. at 17. Accordingly, Lautenschlager cannot meet his burden of

demonstrating reversible error on any of these purported issues. See Lindsey, 888 N.E.2d

at 322.

                                          Conclusion

          In sum, we affirm the post-conviction court’s denial of Lautenschlager’s petition

for post-conviction relief.

          Affirmed.

BAILEY, J., and BARNES, J., concur.




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