MEMORANDUM DECISION
                                                                  Jun 15 2015, 10:11 am
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 establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Theron L. Bailey                                          Gregory F. Zoeller
Carlisle, Indiana                                         Attorney General of Indiana
                                                          Monika Prekopa Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Theron L. Bailey,                                         June 15, 2015

Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          27A05-1404-PC-199
        v.                                                Appeal from the
                                                          Grant Superior Court
State of Indiana,                                         The Honorable Jeffrey D. Todd,
                                                          Judge
Appellee-Respondent.
                                                          Cause Nos. 27D01-1007-PC-143 &
                                                          27D01-0703-FA-54




Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A05-1404-PC-199 | June 15, 2015       Page 1 of 16
[1]   Theron L. Bailey was convicted of Class A felony attempted murder,1 Class A

      felony kidnapping,2 Class B felony criminal confinement,3 two counts of Class

      C felony intimidation,4 six counts of Class D felony pointing a firearm at

      another person,5 Class A misdemeanor invasion of privacy,6 and Class C felony

      carrying a handgun without a license.7 Due to double jeopardy concerns, the

      trial court vacated four of his convictions and sentenced him to an aggregate

      sentence of 108 years in prison. Bailey now appeals the denial of his petition

      for post-conviction relief, raising the following consolidated and restated issue:

      whether his appellate counsel was ineffective for failing to argue that his trial

      counsel was ineffective when, during voir dire, trial counsel did not thoroughly

      explore the potential bias of a juror.


[2]   The post-conviction court did not err in finding that Bailey’s appellate counsel

      provided effective assistance of counsel. We affirm.




      1
       See Ind. Code § 35-41-5-1(a); Ind. Code § 35-42-1-1(1). We note that, effective July 1, 2014, a new version
      of the criminal statutes at issue was enacted. Because Bailey committed his crimes prior to July 1, 2014, we
      will apply the statutes in effect at the time he committed his crimes.
      2
          See Ind. Code § 35-42-3-2(b)(2).
      3
          See Ind. Code § 35-42-3-3(a)(2), (b)(2)(A).
      4
          See Ind. Code § 35-45-2-1(a)(1), (b)(2).
      5
          See Ind. Code § 35-47-4-3(b).
      6
          See Ind. Code § 35-46-1-15.1(5).
      7
          See Ind. Code §§ 35-47-2-1(a); 35-47-2-23(c).



      Court of Appeals of Indiana | Memorandum Decision 27A05-1404-PC-199 | June 15, 2015              Page 2 of 16
                                 Facts and Procedural History
[3]   This court’s unpublished memorandum decision for Bailey’s direct appeal

      provides us with facts and procedural history. Bailey v. State, 908 N.E.2d 712

      (Ind. Ct. App. 2009). Rita Underwood (“Underwood”) obtained a no-contact

      order against Bailey, her ex-boyfriend. Underwood worked at a diner in

      Marion, Indiana and lived in an apartment above the diner. On the night of

      March 3, 2007, Underwood and one of her sons, Dustin Cox (“Cox”), were in

      her apartment when Cox saw Bailey near the apartment. Bailey came to the

      door of the apartment, but Underwood was able to exit without Bailey noticing

      and went downstairs to the diner. Bailey searched Underwood’s apartment and

      then searched the diner, where patrons were dining. Soon after, Underwood

      exited the restaurant, followed by Bailey and the diner’s cook, Jesse Henry

      (“Henry”). As these events were occurring, Underwood’s other son,

      Christopher Sherron (“Sherron”), arrived at the diner.


[4]   Bailey and Underwood argued in the parking lot while her two sons and Henry

      looked on. Bailey pointed a handgun at Henry, and everyone stepped back.

      Bailey and Underwood struggled; meanwhile, the others urged Bailey to put

      away the gun, which Bailey later admitted he had no license to carry. Bailey

      then pointed his handgun at Henry, and everyone stepped back. Underwood

      walked back into the diner. Bailey followed her, and in front of witnesses, shot

      Underwood in the back of the head. Before fleeing the scene, Bailey pointed

      the gun at Cox and Sherron, asking them whether they wanted to die.



      Court of Appeals of Indiana | Memorandum Decision 27A05-1404-PC-199 | June 15, 2015   Page 3 of 16
[5]   A short time later, Bailey entered the Marion V.F.W. Hall and saw Charles

      Teegarden (“Teegarden”), a former co-worker. Teegarden agreed that, after he

      finished a game of pool, he would give Bailey a ride. Not satisfied by the delay,

      Bailey drew his gun, pointed it at Teegarden, and stated that he would shoot

      Teegarden if he did not immediately help him flee. Teegarden managed to

      escape from the situation, and Bailey left the hall.


[6]   Bailey then approached a pub, outside of which he found a man named James

      Johnson (“Johnson”) talking on his cell phone. Bailey pressed his gun into

      Johnson’s chest and told him that he would shoot him in the head if Johnson

      did not agree to drive Bailey where he wanted to go. Johnson drove Bailey to a

      trailer court.


[7]   Bailey was later arrested and charged with thirteen counts, including attempted

      murder, kidnapping, criminal confinement, invasion of privacy, carrying a

      handgun without a license, two counts of intimidation, and six counts of

      pointing a firearm. During voir dire at Bailey’s jury trial, trial counsel, Don

      Gallaway (“Gallaway”) asked a prospective juror (“Juror 4”), “Can you give

      [Bailey] the presumption of innocence even knowing the type of crime[s] with

      which he has been charged,” to which Juror 4 said, “No.” Trial Tr. at 57.

      Gallaway noted, “[B]eside[s] burden of proof an[d] reasonable doubt, the

      fundamental element of this process that we call a jury trial is fairness.” Id.

      Gallaway then impressed on the prospective jurors, “if you can’t be fair an[d]

      impartial then this may not be the case for you.” Id.



      Court of Appeals of Indiana | Memorandum Decision 27A05-1404-PC-199 | June 15, 2015   Page 4 of 16
[8]    Gallaway asked the prospective jurors whether any of them had seen Bailey “in

       a little different light” after they heard “what he’d been accused of doing.” Id.

       Only one juror, Webb, raised his hand and explained that when he heard about

       the case he “had an opinion immediately.” Id. at 58. Webb was dismissed

       from the jury. Juror 4 was not moved to answer Gallaway’s question and was

       placed on the jury.


[9]    Approximately thirty witnesses testified on behalf of the State, at least six of

       whom had been present when Bailey shot Underwood. Testimony from those

       six witnesses revealed: Bailey had been banned from the diner and had been

       asked to leave on the night in question; patrons were in the diner at the time

       Underwood was shot; Underwood was afraid of Bailey; and Bailey had opened

       the door to the diner, raised his hand, and fired at Underwood. Bailey was one

       of only two witnesses to testify in his own defense. He claimed that he was

       drunk and high on the night in question and that the gun had accidentally fired.


[10]   Outside the presence of the jury, the State argued that Bailey’s opening

       statement had opened the door to evidence of prior bad acts. The trial court

       concluded that it would “allow evidence of prior acts of violence by the

       Defendant against the alleged victim, Rita Underwood, and Rita Underwood

       only.” Trial App. at 23. Following the trial, Bailey was found guilty of all

       counts.


[11]   Cognizant of double jeopardy concerns, the trial court later vacated four of the

       thirteen convictions and sentenced Bailey to an aggregate sentence of 108 years


       Court of Appeals of Indiana | Memorandum Decision 27A05-1404-PC-199 | June 15, 2015   Page 5 of 16
       in prison. On direct appeal, Bailey raised two issues: (1) whether the trial court

       committed fundamental error by admitting evidence regarding Bailey’s prior

       convictions; and (2) whether trial counsel was ineffective for not objecting to

       the admission of the prior convictions. This court affirmed Bailey’s

       convictions, finding that Bailey had failed to establish that the admission of the

       evidence concerning two previous convictions constituted fundamental error.

       Additionally, this court concluded that trial counsel was not ineffective for

       failing to object to the admission of this evidence.


[12]   Bailey filed a pro se petition for post-conviction relief in July 2010, but

       withdrew his petition in July 2012. Again, acting pro se, Bailey filed an

       amended petition for post-conviction relief on August 22, 2013. In this petition,

       Bailey claimed that his appellate counsel was ineffective, among other reasons,

       for failing to include in his ineffective assistance of trial counsel claim – raised

       on direct appeal – that trial counsel was also ineffective for failing to question

       Juror 4 regarding his potential bias against Bailey.


[13]   At Bailey’s request, the post-conviction court admitted Petitioner’s Exhibit A –

       the record of proceedings from trial, including the transcript. PCR Tr. at 6.

       Bailey was unable to have his appellate counsel, Robert Bratch (“Bratch”),

       testify at the February 14, 2014 post-conviction hearing because Bratch had

       died prior to that date. Instead, Bailey called Gallaway to testify. On March

       18, 2014, the court issued its findings of fact and conclusions thereon, denying

       Bailey’s petition for post-conviction relief.



       Court of Appeals of Indiana | Memorandum Decision 27A05-1404-PC-199 | June 15, 2015   Page 6 of 16
[14]   The post-conviction court found that Gallaway met Bailey at the county jail to

       discuss trial strategy and possible defenses. PCR Ruling at 5.8 Gallaway

       conducted discovery and shared that discovery with Bailey, and while

       Gallaway took no depositions, he reviewed witness statements received from

       the State during discovery. Id. Furthermore, the record at trial reflected that

       Gallaway filed a motion in limine to exclude Bailey’s prior criminal history and

       a motion to bifurcate count 12 to be heard with the enhancement on count 13.

       Gallaway argued in favor of the motions, made an opening statement, cross

       examined the State’s witnesses, questioned Bailey (after Bailey decided to

       testify), and made a closing argument. Specifically addressing Bailey’s claim

       that Gallaway failed to adequately question Juror 4 during voir dire, the post-

       conviction court found that Gallaway had no recollection of such a hostile

       juror, and Bailey presented no evidence to support his claim that Juror 4 was

       biased against him.9 The post-conviction court concluded that “Bailey wholly

       failed to demonstrate that his trial counsel, Don Gallaway, was ineffective.”

       PCR Ruling at 7. The post-conviction court also concluded that Bailey did not

       prove that appellate counsel Bratch was ineffective when he failed to claim that




       8
        A copy of the post-conviction court’s findings of fact and conclusions thereon, denying Bailey’s request for
       post-conviction relief, is included in the back of the Appellant’s Brief; however we do not find a copy of this
       document in the Appellant’s Appendix. Therefore, for ease of reference, we will refer to the post-conviction
       court’s ruling merely as “PCR Ruling.”
       9
        The post-conviction court also found that Bailey presented no evidence to support his contention that
       Gallaway was ineffective because he did not object to the court’s use of remorse as an aggravating factor
       during sentencing. PCR Ruling at 5. Bailey does raise this issue on appeal.



       Court of Appeals of Indiana | Memorandum Decision 27A05-1404-PC-199 | June 15, 2015                 Page 7 of 16
       Gallaway’s improper inclusion of Juror 4 was ineffective assistance of trial

       counsel. Bailey now appeals.


                                         Discussion and Decision
[15]   Bailey has the burden of establishing his grounds for post-conviction relief by a

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

       appealing from the denial of post-conviction relief stands in the position of one

       appealing from a negative judgment. Soucy v. State, 22 N.E.3d 683, 685 (Ind.

       Ct. App. 2014). Thus, the decision will be disturbed as being contrary to law

       only if the evidence is without conflict and leads to but one conclusion, and the

       post-conviction court has reached the opposite conclusion. Id. Ineffectiveness

       of counsel claims are evaluated under the standard of Strickland v. Washington,

       466 U.S. 668 (1984). To prevail on a claim of ineffective assistance of counsel,

       a petitioner must show both deficient performance and resulting prejudice. Brown v.

       State, 880 N.E.2d 1226, 1230 (Ind. Ct. App. 2008) (citing Strickland, 466 U.S. at

       687), trans. denied (emphasis added).


[16]   Bailey first contends that his trial counsel was ineffective when, during voir

       dire, trial counsel did not question Juror 4 regarding his possible prejudice

       against Bailey and strike the juror from the jury.10 Appellant’s Br. at 7. The State



       10
          We note that in his amended petition for post-conviction relief, which was filed on August 22, 2013, Bailey
       claimed ineffective assistance of appellate counsel and judicial fundamental error as the only grounds for granting
       post-conviction relief. Appellant’s Supp. App. at 4, 12, 13. During the post-conviction hearing – likely due to
       the unavailability of appellate counsel – Bailey’s questioning focused on the actions of Gallaway as trial
       counsel. The post-conviction court concluded that Bailey had failed to demonstrate that either his trial



       Court of Appeals of Indiana | Memorandum Decision 27A05-1404-PC-199 | June 15, 2015                   Page 8 of 16
argues that Bailey is barred from asserting this claim because he raised an

ineffective assistance of trial counsel claim in his direct appeal. We agree. Our

Supreme Court addressed this issue in Woods v. State, 701 N.E.2d 1208 (Ind.

1998), Ben-Yisrayl v. State, 738 N.E.2d 253, 259 (Ind. 2000), and, again, in

Timberlake v. State, 753 N.E.2d 591, 602 (Ind. 2001). The Supreme Court held

that “once the defendant chooses to raise his claim of ineffective assistance of

trial counsel (either on direct appeal or post-conviction), he must raise all issues

relating to that claim, whether record-based or otherwise.” Timberlake, 753

N.E.2d at 602 (citation omitted). Accordingly, a defendant who chooses to

raise on direct appeal a claim of ineffective assistance of trial counsel is

foreclosed from relitigating that claim. Id.; see also Bieghler v. State, 690 N.E.2d

188, 200-01 (Ind. 1997) (“Some of the [defendant’s arguments on post-

conviction appeal] are new arguments about aspects of trial counsel’s

performance we considered on direct appeal; others focus on aspects not

mentioned earlier. In either case, the earlier ruling that trial counsel was not

ineffective is res judicata.”). On direct appeal, Bailey raised, and this court

considered and rejected, a claim of ineffective assistance of trial counsel. Res

judicata thus bars him from relitigating this issue in post-conviction

proceedings. Timberlake, 753 N.E.2d at 602.




counsel or appellate counsel was ineffective. PCR Ruling at 7, 8. On appeal, Bailey challenges both of those
conclusions.



Court of Appeals of Indiana | Memorandum Decision 27A05-1404-PC-199 | June 15, 2015              Page 9 of 16
[17]   A petitioner, however, can claim that appellate counsel was ineffective for

       failing to properly raise and support deficient performance of trial counsel.

       Sweeney v. State, 886 N.E.2d 1, 7 (Ind. Ct. App. 2008) (citing Timberlake, 753

       N.E.2d at 606), trans. denied. The standard of review for a claim of ineffective

       assistance of appellate counsel is identical to the standard for trial counsel.

       Walker v. State, 988 N.E.2d 1181, 1190 (Ind. Ct. App. 2013), trans. denied. The

       petitioner must establish deficient performance by appellate counsel resulting in

       prejudice. Id.

               Deficient performance is 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. We assess counsel’s performance based on facts that are
               known at the time and not through hindsight. Evidence of isolated
               poor strategy, inexperience, or bad tactics will not support an
               ineffective assistance claim; instead, we evaluate counsel’s
               performance as a whole. Counsel’s performance is presumed effective,
               and a defendant must offer strong and convincing evidence to
               overcome this presumption. Prejudice occurs when a reasonable
               probability exists that, but for counsel’s errors the result of the
               proceeding would have been different. A reasonable probability is a
               probability sufficient to undermine confidence in the outcome.
       Id. at 1186 (citations and internal quotation marks omitted).


[18]   Here, Bailey maintains that his appellate counsel was ineffective when he did

       not raise on direct appeal that trial counsel was not effective because he failed to

       properly question Juror 4 regarding whether that juror harbored possible

       prejudice against Bailey, which prejudice allegedly compromised the verdict




       Court of Appeals of Indiana | Memorandum Decision 27A05-1404-PC-199 | June 15, 2015   Page 10 of 16
       and resulted in fundamental error.11 “In evaluating whether appellate counsel

       performed deficiently by failing to raise an issue on appeal, we apply the

       following test: (1) whether the unraised issue is significant and obvious from

       the face of the record and (2) whether the unraised issue is ‘clearly stronger’

       than the raised issues.” Walker, 988 N.E.2d at 1191. Ineffective assistance is

       very rarely found in cases where a defendant asserts that appellate counsel

       failed to raise an issue on direct appeal because the decision of what issues to

       raise is one of the most important strategic decisions to be made by appellate

       counsel. Reed v. State, 856 N.E.2d 1189, 1196 (Ind. 2006).


[19]   Bratch died before the post-conviction hearing; therefore, he was unavailable to

       testify regarding why he raised the issues he did, instead of raising issues

       concerning Juror 4’s potential prejudice. Gallaway testified at the post-

       conviction hearing; however, he was unable to recall his conversation with

       Juror 4. Therefore, to evaluate Bratch’s representation of Bailey on direct

       appeal, we look for guidance in Petitioner’s Exhibit 1 to the post-conviction

       hearing, the transcript of Bailey’s trial. In particular, we examine the voir dire.


[20]   To determine which issues would be most likely to succeed and thus should be

       raised on direct appeal, Bratch would have had to review the trial transcript,




       11
          In his petition for post-conviction relief, Bailey claimed that appellate counsel was ineffective for failing to
       raise claims of Gallaway being ineffective when he did not: (1) question Juror 4 regarding bias; (2) prepare
       adequately for trial; (3) call certain defense witnesses; (4) request a speedy trial; and (5) object to the trial
       court using lack of remorse as an aggravating factor for sentencing. Appellant’s Supp. App. at 15, 16, 19, 35,
       40, 42. On appeal, Bailey only raises his concerns regarding Juror 4.



       Court of Appeals of Indiana | Memorandum Decision 27A05-1404-PC-199 | June 15, 2015                   Page 11 of 16
       including the voir dire. “‘The purpose of voir dire is to determine whether a

       prospective juror can render a fair and impartial verdict in accordance with the

       law and the evidence.’” Gregory v. State, 885 N.E.2d 697, 706 (Ind. Ct. App.

       2008) (quoting Joyner v. State, 736 N.E.2d 232, 237 (Ind. 2000)), trans. denied.

       “[S]uch examination of prospective jurors is used to discover whether a

       prospective juror has any opinion, belief, or bias [that] would affect or control

       his determination of the issues to be tried, providing a basis to exercise the right

       of challenge either peremptory or for cause.” Id. “[P]roper examination may

       include questions designed to disclose the jurors’ attitudes about the type of

       offense charged.” Id. at 707. Biased jurors may be removed for cause. Whiting

       v. State, 969 N.E.2d 24, 29 (Ind. 2012). Additionally, “state law provides

       defendants with a limited number of peremptory challenges, I.C. § 35-37-1-3;

       Ind. Jury Rule 18, which they may use to excuse jurors for almost any reason.”

       Id. For the crimes committed by Bailey, Gallaway should have had ten

       peremptory challenges. Ind. Code § 35-37-1-3(b) (2006).


[21]   Here, the transcript of the voir dire proceedings revealed the following

       regarding Juror 4’s potential bias. Juror 4 said that he would be open-minded

       and listen to the evidence on both sides. Trial Tr. at 43. He also said that he

       understood part of his job as a juror would be to assess the credibility of

       witnesses, and he stated that he was up to the task. Id. at 44. Juror 4 said that

       he would watch the demeanor of each witness to determine by their body

       language whether they were telling the truth. Id.




       Court of Appeals of Indiana | Memorandum Decision 27A05-1404-PC-199 | June 15, 2015   Page 12 of 16
[22]   Gallaway and Juror 4 acknowledged that they knew each other. Gallaway

       stated, “Nobody here indicated that they knew [Bailey], correct? Can you give

       him the presumption of innocence even knowing the type of crime with which

       he’s been charged?” Trial Tr. at 57. Without elaboration, Juror 4 simply said

       “No.” Gallaway continued,

               Saying that you know what I am not gonna pass judgment on you
               until I’ve heard it all. Can each one of you do that? Anyone here say
               you know what I don’t know. I heard the charges an[d] then jus[t]
               hearing an[d] you haven’t heard the details yet. Just hearing the
               charges caused me kinda inside kinda gasp a little bit an[d] all the
               sudden [sic] you look at [h]im in a little different light. How many of
               you did that? Came in here an[d] saw Theron sittin[g] here, but then
               heard the charges an[d all the sudden maybe [] you saw him in a
               different light after you’d heard what he’d been accused of doing.
               Anybody? An[d] it’s okay if you did. Because . . . beside burden of
               proof an[d] reasonable doubt the fundamental element of this process
               that we call jury trial is fairness. An[d] if you can’t be fair an[d]
               impartial then this may not be the case for you. Okay an[d] we need
               t[o] know that. I will get as transparent and open with you, buy [sic]
               in turn we need you t[o] do the same with us, okay? Can anybody say
               that [] hey you know what when we were all sittin[g] here I saw [h]im
               one way, but then [] when I heard what he’d been charged with I kinda
               saw [h]im [in a] different way. Nobody? . . . .
       Trial Tr. at 57-58.


[23]   Juror 4 did not raise his hand in response to Gallaway’s question. Potential

       juror Webb, however, did raise his hand and explained that when he heard

       about the case he “had an opinion immediately in [his] mind.” Id. at 58. When

       asked, Webb confirmed that he still carried that opinion. Id. Gallaway

       specifically asked Webb, “Do you think you can be fair? Having read what



       Court of Appeals of Indiana | Memorandum Decision 27A05-1404-PC-199 | June 15, 2015   Page 13 of 16
       you’ve read an[d] know what you known can you be fair an[d] give him a fair

       trial?” Id. at 59. Webb answered that he was not sure. Id. Gallaway moved to

       strike Webb for cause. Id. at 60. Thereafter, Webb said he thought he could

       wait to make up his mind regarding guilt until he had heard all of the evidence.

       Id. at 61. Gallaway withdrew his motion to strike Webb for cause. While it is

       not clear whether defense counsel or the State challenged Webb as a juror, he

       was dismissed from the jury. After Juror 4 confirmed that his familiarity with

       Gallaway would not in any way affect his ability to be a juror, Juror 4 remained

       on the jury. Id. at 70, 73.


[24]   Appellate counsel’s performance is presumed effective. Here, Bailey has not

       offered strong and convincing evidence to overcome this presumption. The

       record supported that Gallaway intensively questioned each potential juror,

       including Juror 4. During voir dire, about twenty-four potential jurors were

       dismissed from the jury pool. Some were dismissed for cause and others by

       preemptory challenge. Gallaway, himself, used at least seven preemptory

       challenges – an amount that the prosecutor characterized as “a lot.” Trial Tr. at

       119.12 Gallaway was clearly concerned about the fairness of trial and removed

       from the jury any individual that he believed would not provide Bailey with a

       fair trial. We cannot say that Bailey has met his burden of proving that Bratch




       12
         During voir dire, Gallaway asked the court, “[C]ould you please give me a count on my strikes?” The trial
       court told Gallaway that he had three strikes left, to which the State prosecutor responded, “You mean
       you’ve used seven (7)? That’s a lot.” Trial Tr. at 119.



       Court of Appeals of Indiana | Memorandum Decision 27A05-1404-PC-199 | June 15, 2015           Page 14 of 16
       was ineffective for failing to raise on direct appeal the ineffectiveness of

       Gallaway for not more fully questioning or striking Juror 4 from the jury pool.


[25]   Further, even if we were to find that Bratch was ineffective for not raising on

       direct appeal the ineffectiveness of Gallaway for failing to remove Juror 4 from

       the jury pool, no prejudice resulted. The evidence against Bailey was

       overwhelming. Witnesses testified that Underwood had a no-contact order

       against Bailey, Bailey went to Underwood’s apartment to find her, he followed

       her to the diner, the two struggled while Bailey was in possession of a gun,

       Bailey followed Underwood back into the diner, and when he was a couple of

       feet away from her, he pointed the gun at head and fired. Trial Tr. at 147-50,

       218-19, 240-41. Witnesses also testified as to the events surrounding the other

       charged crimes. In his defense, Bailey testified that he did not mean to shoot

       Underwood, that it was an accident. Bailey admitted that he pointed his

       handgun at Henry; however, he claimed that it was in self-defense. As to the

       other crimes, Bailey claimed to have no memory about what happened.

       Approximately thirty witnesses testified on behalf of the State, at least six of

       whom had been present when Bailey shot Underwood. The jury believed that

       the shooting of Underwood was intentional. Additionally, in the absence of

       any defense except that Bailey could not remember, the jury believed that

       Bailey had committed each of the remaining charged crimes. Prejudice occurs

       when a reasonable probability exists that, but for counsel’s errors the result of

       the proceeding would have been different. We find no prejudice caused by the

       inclusion of Juror 4.


       Court of Appeals of Indiana | Memorandum Decision 27A05-1404-PC-199 | June 15, 2015   Page 15 of 16
[26]   Here, Bailey failed to prove either that appellate counsel was deficient or that

       such deficiency resulted in prejudice. Finding that Bailey did not receive

       ineffective assistance of appellate counsel, we affirm the post-conviction court’s

       denial of Bailey’s petition.


[27]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A05-1404-PC-199 | June 15, 2015   Page 16 of 16
