MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Mar 12 2019, 9:33 am

court except for the purpose of establishing                             CLERK
                                                                     Indiana Supreme Court
the defense of res judicata, collateral                                 Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Joseph Sabetti                                           Curtis T. Hill, Jr.
Erie, Pennsylvania                                       Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joseph Sabetti,                                          March 12, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-1728
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas A.
Appellee-Respondent                                      Cannon, Jr., Judge
                                                         Trial Court Cause No.
                                                         18C05-1701-PC-3



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019               Page 1 of 19
[1]   Joseph Sabetti appeals the post-conviction court’s order denying his petition for

      post-conviction relief. Sabetti argues that the post-conviction court erroneously

      determined that he did not receive the ineffective assistance of appellate

      counsel; he also raises a freestanding claim of error regarding this Court’s

      decision in his direct appeal. Finding no error, we affirm.


                                                    Facts
[2]   This Court described the underlying facts in Sabetti’s direct appeal:


              In 2013, Sabetti and A.B. were both graduate students at Ball
              State University. While enrolled at Ball State, both Sabetti and
              A.B. resided in Muncie. After being introduced by a mutual
              friend, Sabetti and A.B. entered into a “boyfriend and girlfriend”
              relationship in July of 2013. A.B. described this relationship as a
              monogamous, intimate relationship. This relationship continued
              while A.B. completed an internship in Fishers during the months
              of August, September, and October. After completing her
              internship, A.B. returned to Muncie in the beginning of
              November.


              Upon returning to Muncie, A.B. began residing with Sabetti in
              his apartment. A.B. moved all of the belongings which she
              needed to live into Sabetti’s apartment. While residing in the
              apartment with Sabetti, A.B. helped with domestic functions
              such as cooking and cleaning. A.B. and Sabetti shared the same
              bed and engaged in sexual relations. A.B. also completed a
              change of address and listed Sabetti’s address as the address on
              her driver’s license.


              A.B. continued to reside with Sabetti in his apartment until she
              temporarily relocated to Houston for an internship in January of


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019   Page 2 of 19
        2014. Sabetti and A.B. planned to again cohabitate after A.B.
        returned from her internship in Houston.


        A.B. and Sabetti began to encounter problems with their
        relationship while A.B. was temporarily in Houston. A.B.
        attributed these problems, at least in part, to the distance between
        them. In March of 2014, Sabetti flew to Houston to help A.B.
        drive back to Muncie. Once in Houston, Sabetti and A.B. began
        to argue and at one point “broke[ ] up.” They then drove back to
        Muncie together.


        Once back in Muncie, A.B. and Sabetti continued to argue. As a
        result of the continuing argument, A.B. decided to move out of
        Sabetti’s apartment. However, before she did so, during the
        evening hours of March 30, 2014, Sabetti became physical with
        A.B.


        Sabetti, who outweighed A.B. by approximately fifty to sixty
        pounds, grabbed A.B., read a text on A.B.’s cellular phone from
        A.B.’s mother, and “threw [A.B.] down onto the bed.” Sabetti
        told A.B. “if you want to fight, we'll fight.” Sabetti then
        straddled A.B., who began trying to get away from Sabetti.
        Sabetti placed his hands around A.B.’s neck. A.B. placed her
        hands on Sabetti's wrists and, in an attempt to get him to stop,
        “squeeze[ed] his arms, sticking [her] nails into him.” A.B. was
        unable to free herself from Sabetti.


        During their struggle, A.B. pleaded with Sabetti to stop, telling
        him that he was hurting her. A.B. became scared after Sabetti
        indicated that he “was going to kill” her. Sabetti continued
        choking A.B. until she lost consciousness.


        After regaining consciousness, A.B. fled Sabetti’s apartment.
        A.B. made her way to a nearby apartment. The resident of that
        apartment notified the police who came to the scene and

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019   Page 3 of 19
              documented A.B.’s demeanor and injuries. A.B. was
              subsequently transported away from the scene by police.


              On June 13, 2014, Appellee–Plaintiff the State of Indiana (the
              “State”) charged Sabetti with Class D felony strangulation, Class
              A misdemeanor domestic battery, and Class D felony criminal
              confinement. Following a three-day jury trial, the jury found
              Sabetti guilty of Class A misdemeanor domestic battery and not
              guilty of Class D felony strangulation and Class D felony
              criminal confinement. The trial court subsequently imposed a
              six-month suspended sentence. . . .


      Sabetti v. State, No. 18A05-1505-CR-448, at *1-*2 (Ind. Ct. App. Dec. 22, 2015)

      (internal citations omitted), trans. denied.


[3]   Sabetti filed a direct appeal. The two arguments raised by appellate counsel

      were that (1) the domestic battery statute was unconstitutionally vague as

      applied to Sabetti and (2) there was insufficient evidence to support his

      conviction. Appellate counsel did not raise a double jeopardy challenge

      because Sabetti was only convicted of one offense, and she did not allege

      prosecutorial misconduct because she did not see any when she examined the

      record. This Court affirmed, finding that the statute was not unconstitutionally

      vague and that there was sufficient evidence. Id. at *3-*4. Sabetti’s appellate

      counsel filed a petition to transfer. After she filed that petition, Sabetti

      demanded that she withdraw, which she did. He then filed a pro se petition to

      transfer, which our Supreme Court denied.


[4]   On January 11, 2017, Sabetti filed a petition for post-conviction relief, arguing

      that he had received the ineffective assistance of appellate counsel. Following
      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019   Page 4 of 19
      an evidentiary hearing, the trial court denied Sabetti’s petition on May 1, 2018.

      Sabetti now appeals.


                                   Discussion and Decision
                                     I. Standard of Review
[5]   The general rules regarding the review of a ruling on a petition for post-

      conviction relief are well established:


              “The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
              “When appealing 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, a petitioner must show that the evidence as a
              whole leads unerringly and unmistakably to a conclusion
              opposite that reached by the post-conviction court. Weatherford v.
              State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
              conviction court in this case made findings of fact and
              conclusions of law in accordance with Indiana Post-Conviction
              Rule 1(6). Although we do not defer to the post-conviction
              court’s legal conclusions, “[a] post-conviction court’s 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.” Ben-Yisrayl v. State, 729 N.E.2d
              102, 106 (Ind. 2000) (quotation omitted).


      Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).


[6]   Sabetti’s primary argument on appeal is that the post-conviction court

      erroneously determined that he did not receive the ineffective assistance of


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019   Page 5 of 19
      appellate counsel. To establish ineffective assistance of appellate counsel, the

      petitioner must show that (1) appellate counsel was deficient in his or her

      performance, and (2) the deficiency resulted in prejudice. Id. at 269. Failure to

      satisfy either prong will cause the claim to fail. Henley v. State, 881 N.E.2d 639,

      644 (Ind. 2008). To satisfy the first prong, the defendant must show that

      counsel’s representation fell below an objective standard of reasonableness,

      committing errors so egregious that the defendant did not have the counsel

      guaranteed by the Constitution. Hollowell, 19 N.E.3d at 269. To satisfy the

      second prong, the defendant must show a reasonable probability that, but for

      counsel’s errors, the result of the proceeding would have been different. Id.


                           II. Assistance of Appellate Counsel
[7]   Sabetti raises multiple arguments, which we consolidate and restate as follows:

      (1) counsel was ineffective in the manner in which she presented her arguments

      on appeal; (2) counsel was ineffective for failing to raise claims of prosecutorial

      misconduct; and (3) counsel was ineffective for failing to object to the State’s

      brief on direct appeal.1




      1
        Sabetti also argues that appellate counsel should have raised a double jeopardy claim. Given that Sabetti
      was only convicted of one offense, it is readily apparent that there is no basis for a double jeopardy argument.
      It is true that double jeopardy may be an issue in “cases in which there has been an acquittal on one charge
      and retrial on another charge after a hung jury.” Garrett v. State, 992 N.E.2d 710, 714 (Ind. 2013). Here,
      however, Sabetti was convicted of one charge and acquitted of two others; therefore, the Garrett scenario is
      not applicable. Sabetti was only put in jeopardy—the risk of trial and conviction—once. Therefore,
      appellate counsel was not ineffective on this basis.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019                     Page 6 of 19
                        A. Arguments Raised on Direct Appeal
[8]    Sabetti first argues that appellate counsel was deficient in the way in which she

       presented the arguments regarding the sufficiency of the evidence supporting his

       conviction and the constitutionality of the domestic battery statute.


                               1. Sufficiency of the Evidence
[9]    To convict Sabetti of Class A misdemeanor domestic battery, the State was

       required to prove beyond a reasonable doubt that he knowingly and

       intentionally touched A.B. in a rude, insolent, or angry manner, resulting in

       bodily injury, and that A.B. is or was living as his spouse. Ind. Code § 35-42-2-

       1.3.


[10]   In arguing that the evidence was insufficient to support Sabetti’s domestic

       battery conviction, appellate counsel first cited the correct standard of review

       and then noted correctly that the State was required to prove beyond a

       reasonable doubt that Sabetti and A.B. had been living as if they were spouses.

       Appellant’s Br. on Direct Appeal p. 16-17. To make that case, the State was

       required to address the following factors:


               (1)     the duration of the relationship;
               (2)     the frequency of contact;
               (3)     the financial interdependence;
               (4)     whether the two (2) individuals are raising children
                       together;
               (5)     whether the two (2) individuals have engaged in tasks
                       directed toward maintaining a common household; and
               (6)     other factors the court considers relevant.


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019   Page 7 of 19
       I.C. § 35-42-2-1.3(c). Appellate counsel argued that “the only operative facts

       which were used to establish that [A.B.] and Mr. Sabetti had previously been

       ‘living as if a spouse’ of the other were that they had dated and that they had an

       intimate sexual relationship.” Appellant’s Br. on Direct Appeal p. 17.


[11]   It is true that appellate counsel could have elaborated on this argument, but we

       find that even if she had, we would have affirmed the conviction. This Court

       found the following evidence supported the conclusion that Sabetti and A.B.

       had been living as if spouses:


               The record reveals that Sabetti and A.B., both students at Ball
               State University, had resided together in Sabetti’s apartment for
               nearly three months before A.B. temporarily relocated to
               Houston for an internship. They had engaged in a “boyfriend
               and girlfriend” relationship for several months before residing
               together. While residing together in Sabetti’s apartment, A.B.
               moved her belongings into the apartment and helped with
               domestic functions such as cooking and cleaning. In addition,
               A.B. and Sabetti shared the same bed and engaged in sexual
               relations. A.B. also completed a change of address and listed
               Sabetti’s address as the address on her driver’s license. Sabetti
               and A.B. also planned to cohabitate after A.B. returned from her
               internship in Houston.


       Sabetti, No. 18A05-1505-CR-448, at *3 (internal citation omitted). We find that

       even if appellate counsel had elaborated on this argument, it would have been

       to no avail. In other words, Sabetti cannot establish prejudice on this basis.


[12]   Sabetti contends that appellate counsel should have also challenged the

       sufficiency of the evidence supporting the other elements of the domestic

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019   Page 8 of 19
       battery statute. We disagree that any arguments in this regard would have

       changed the result. The State presented overwhelming evidence that Sabetti

       battered and injured A.B. Specifically, A.B. testified that he threw her on the

       bed, straddled her, put his hands around her neck, and squeezed until she lost

       consciousness. She stated that when she regained consciousness, pain was

       radiating from her head and neck and that it hurt to swallow and talk. Police

       officers and a physician corroborated her testimony by testifying about her

       many injuries, including redness, fingerprints on her neck, red eyes, a raspy

       voice, and difficulty swallowing.2 Given that this evidence readily supports the

       jury’s conclusion that Sabetti touched A.B. in a rude, insolent, or angry

       manner, causing bodily injury, Sabetti’s claim of ineffective assistance of

       appellate counsel based on counsel’s failure to make an argument in this regard

       must fail.


                2. Constitutionality of Domestic Battery Statute
[13]   Sabetti also argues that his appellate counsel was deficient in the way in which

       she argued that the domestic battery statute was unconstitutional. Before 2003,

       the statute did not define “living as if a spouse.” I.C. § 35-42-2-1.3 (2002).

       After this Court found that the statute was unconstitutionally vague as applied




       2
        To the extent that Sabetti argues that counsel should have contended that A.B.’s testimony was incredibly
       dubious, we note that the rule of incredible dubiosity applies only when a sole witness testifies. Carter v. State,
       31 N.E.3d 17, 30-31 (Ind. Ct. App. 2015). Here, A.B.’s testimony was corroborated in relevant part by law
       enforcement officers and medical personnel. Therefore, under no circumstances would A.B.’s testimony
       have been found to be incredibly dubious.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019                        Page 9 of 19
       to the defendant in Vaughn v. State, 782 N.E.2d 417, 420-21 (Ind. Ct. App.

       2003), the General Assembly amended the statute. The version of the statute in

       effect at the time Sabetti committed his crime provided that the factors set forth

       above must be considered in determining whether a person is or was living as a

       spouse of another individual. I.C. § 35-42-2-1.3(c).


[14]   In Sabetti’s direct appeal, appellate counsel argued that the version of the

       statute in effect at the time he committed his crime was unconstitutionally

       vague as applied to him. See Appellant’s Br. on Direct Appeal p. 15-16.3 She

       directed this Court’s attention to the following facts in the record in support of

       the argument:


                Here, Mr. Sabetti was the only person on the lease to the
                apartment at Anthony Apartments. He paid the rent and
                utilities. [A.B.] did not have a key to the apartment. She did not
                contribute financially to the household. The parties had separate
                checking and savings accounts. [A.B.] had been living in
                Houston, Texas from the beginning of January until the end of
                March 2014. Prior to that, she had lived in Carmel, Indiana and
                North Carolina. The parties had been dating for only a short
                period of time.


                The only operative facts which were used to establish that [A.B.]
                and Mr. Sabetti had previously been “living as if a spouse” of the
                other were that they had dated and that they had an intimate
                sexual relationship. It is not enough that two individuals have
                dated and those individuals had a sexual relationship during that



       3
         Sabetti claims that counsel based her argument on the prior version of the statute, but it is apparent that he
       is wrong, inasmuch as the brief discusses the factors listed above. Appellant’s Br. on Direct Appeal p. 15-16.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019                     Page 10 of 19
               time. The Court found in Vaughn v. State, 782 N.E2d 417 (Ind.
               [Ct.] App. 2003) that something more than living together and
               having a sexual relationship is required to establish individuals
               are living together as spouses. At the most, [A.B.] and Mr.
               Sabetti could have “lived together” for only a matter of days due
               to their internships and travels during winter break.


               Therefore, the statute as it applies to Mr. Sabetti is
               unconstitutionally vague and his conviction should be vacated.


       Id. at 16. While the argument was not successful, we find that appellate counsel

       did the best she could with the record before her. Given the facts in the record

       clearly supporting a conclusion that Sabetti and A.B. were living as if spouses,

       as well as the heavy burden to carry when arguing that a statute is

       unconstitutional, we find that appellate counsel was not deficient in the way in

       which she presented this argument.


                                  B. Prosecutorial Misconduct
[15]   Next, Sabetti argues that appellate counsel should have raised multiple claims

       of prosecutorial misconduct. Initially, we note that no prosecutorial

       misconduct objections were raised at trial. As a result, to succeed with such a

       claim on direct appeal would require showing fundamental error. Ryan v. State,

       9 N.E.3d 663, 667 (Ind. 2014). Specifically, he would have had to show “a

       blatant violation of basic principles, [that] the harm or potential for harm is

       substantial, and [that] the resulting error denies the defendant fundamental due

       process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). Under these

       circumstances, appellate counsel reasonably concluded as a strategic decision

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019   Page 11 of 19
       that the likelihood of success on appeal was so slim that it would have been

       futile to make the argument. That said, we will address each of Sabetti’s

       contentions specifically.


                                            1. Doyle Violation
[16]   Sabetti testified at his trial. At several points during his testimony, the State

       questioned him about his decision to decline to participate in a university

       review board hearing. Direct Appeal Tr. Vol. III p. 240-45; see also id. at Vol.

       III p. 82 (emphasizing in closing arguments, “If it’s nothing more than a shove,

       why not tell the review board? Why not stand on the table and shout that’s

       what happened? But, he chose not to.”). Sabetti contends that by pursuing this

       line of argument, the State violated his constitutional rights. Specifically, he

       argues that the prosecutor committed misconduct by impeaching Sabetti with

       his silence at the university review board hearing.


[17]   The prosecution may not use statements from a custodial interrogation unless

       the defendant was warned of his Fifth Amendment “right to remain silent.”

       Miranda v. Arizona, 384 U.S. 436, 444 (1966). Because Miranda warnings

       implicitly assure a defendant “that silence will carry no penalty,” the United

       States Supreme Court held that “it would be fundamentally unfair and a

       deprivation of due process to allow the arrested person’s silence to be used to

       impeach an explanation subsequently offered at trial.” Doyle v. Ohio, 426 U.S.

       610, 618 (1976). Our Supreme Court has further explained that




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019   Page 12 of 19
                  [a] defendant who receives Miranda warnings is advised that he
                  may remain silent; he is not warned that the right continues only
                  while he is in the custody of the arresting officers. Penalizing the
                  accused for silence before trial is no less punishment for the
                  exercise of a right than penalizing silence at the time of arrest.


       Jones v. State, 265 Ind. 447, 451, 355 N.E.2d 402, 405 (Ind. 1976). However,

       when “a defendant does not remain silent, he cannot later claim that the silence

       was used against him.” Sylvester v. State, 698 N.E.2d 1126, 1131 (Ind. 1998).


[18]   Here, Sabetti initially talked to the police, but then asked for a lawyer. 4 After he

       was released on bail, but before the review board hearing, he spoke to members

       of the board. He then declined to participate in the hearing.


[19]   Sabetti was not permitted to “remain ‘selectively’ silent and later claim[] that

       voids in the incomplete statement are sheltered by the Fifth Amendment and

       under Doyle cannot be used to impeach his testimony.” Carlyle v. State, 428

       N.E.2d 10, 13 (Ind. 1981); see also United States v. Bonner, 302 F.3d 776, 784 (7th

       Cir. 2002) (observing that “it would not serve the criminal justice system to

       allow defendants to use the Fifth Amendment as both a shield and as a sword,

       answering questions selectively and preventing the prosecution from

       mentioning such selectiveness at trial”). Furthermore, the review board was

       not required to provide Sabetti with Miranda warnings because the hearing was

       not a custodial interrogation. Miranda, 384 U.S. at 478-79. There can be no




       4
           The State did not use that request against him.


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019   Page 13 of 19
       Doyle violation without Miranda warnings because they are “prerequisites for

       finding a constitutional violation.” Myers v. State, 27 N.E.3d 1069, 1080 (Ind.

       2015). Under these circumstances, it is apparent that it would have been futile

       for appellate counsel to claim a Doyle violation; therefore, we find no ineffective

       assistance on this basis.


                                    2. Vouching for Witnesses
[20]   Doyle next argues that the prosecutor committed misconduct by vouching for

       the police officer witnesses. During closing, the prosecutor argued,


               Now, would the Ball State Police Department? Do they have
               any reason to lie about what they saw that night? Four officers,
               do they have any reason to lie? In fact, if the[y] did, you know
               what? Their job, their profession as police officers is done. No
               better to end a police officer’s career, then have them lie on the
               stand. Their credibility is destroyed forever. They had no reason
               to lie. They don’t care. It’s another student-on-student violent
               act. They do that all the time. Not to this degree, but they deal
               with it all the time.


       Direct Appeal Tr. Vol. III p. 84.


[21]   While a prosecutor may not personally vouch for a witness, he may “‘comment

       on the credibility of the witnesses as long as the assertions are based on reasons

       which arise from the evidence.’” Cooper v. State, 854 N.E.2d 831, 836 (Ind.

       2006) (quoting Lopez v. State, 527 N.E.2d 1119, 1127 (Ind. 1988)). A prosecutor

       may also “respond to allegations and inferences raised by the defense even if the




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019   Page 14 of 19
       prosecutor’s response would otherwise be objectionable.” Dumas v. State, 803

       N.E.2d 1113, 1118 (Ind. 2004).


[22]   Here, the prosecutor’s argument was based on the record, which did not show a

       reason for the police officers to lie. Moreover, Sabetti repeatedly implied that

       the police conducted an incomplete investigation and lied about their

       observations, meaning that the prosecutor was entitled to respond. See id.

       (holding that the prosecutor “was entitled to counter with argument that the

       witness was not lying and had no reason to do so”). Finally, the trial court

       instructed the jury that statements made by the attorneys are not evidence.

       Under these circumstances, even if appellate counsel had made this argument,

       Sabetti would not have prevailed. We find no error on this basis.


                                3. Appealing to Jury’s Passions
[23]   Finally, Sabetti argues that the prosecutor committed misconduct by appealing

       to the jury’s passions. A prosecutor may not request a jury to convict the

       defendant for any reason other than his guilt or “phrase a final argument in a

       manner calculated to inflame the passions or prejudice of a jury.” Jerden v.

       State, 37 N.E.3d 494, 499 (Ind. Ct. App. 2015).


[24]   Here, in closing arguments, the prosecutor made the following statements:


               Well, we have an extremely vivid account of what happened in
               that bedroom on March 30, from [A.B.] She told the police at
               the scene. She gave a voluntary statement at the hospital. She
               testified at the board review hearing, and also, you heard her sit
               right there, facing that man, put his hands on her as he tried to

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019   Page 15 of 19
               choke the life out of her. She stood up to him. She told you
               what happened. Consistent, consistent, consistent. Can you
               imagine what it must have taken to walk into this courtroom,
               walk past him, sit there and have to look at [the] person who did
               that to you? That is not an easy thing to do, and many, many
               victims of domestic violence can’t do that. That did happen here
               today.


       Direct Appeal Tr. Vol. III p. 74. This argument was not an attempt to get the

       jury to convict Sabetti for any reason other than his guilt. Instead, it

       emphasized that A.B.’s testimony was credible because it was consistent with

       what she had told the police at the scene and because it would have been

       difficult for A.B. to face her attacker. Moreover, it is apparent that the jury’s

       passions and prejudice were not inflamed, inasmuch as it found Sabetti not

       guilty of the two felony charges. Under these circumstances, appellate counsel

       was not ineffective for failing to make this argument.


[25]   Sabetti also argues that appellate counsel should have contended that the

       cumulative effect of the prosecutor’s conduct amounted to fundamental error.

       We have found no instances of misconduct—or anything coming close to

       misconduct—therefore, counsel could not have showed cumulative misconduct

       that denied Sabetti a fair trial. In sum, we find that appellate counsel was not

       ineffective for failing to raise any arguments regarding prosecutorial

       misconduct.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019   Page 16 of 19
                                C. State’s Brief on Direct Appeal
[26]   Next, although slightly unclear, Sabetti seems to argue that appellate counsel

       should have objected to the State’s brief on direct appeal. 5 He argues,

       essentially, that the State’s statement of facts contains facts that are related to

       the two charges of which he was acquitted as well as the charge of which he

       was convicted.


[27]   Indiana Appellate Rule 46(A)(6) states that the statement of facts “shall

       describe the facts relevant to the issues presented for review . . . in accordance

       with the standard of review appropriate to the judgment or order being

       appealed.” Sabetti challenged the constitutionality of the domestic battery

       statute and the sufficiency of the evidence supporting that conviction, meaning

       that it was appropriate for the State to recite all facts supporting that conviction,

       which it did.


[28]   What Sabetti seems to be arguing is that it was inappropriate for the State to

       include evidence that he choked A.B. until she lost consciousness. But this

       evidence was not limited to the strangulation charge (of which he was

       acquitted), as the State did not specifically allege which touching supported the

       domestic battery in the charging information. We can only conclude that the




       5
         Sabetti couches it in terms of prosecutorial misconduct, claiming that appellate counsel should have argued
       that the State committed prosecutorial misconduct via the content of its brief. We decline to find that a
       Deputy Attorney General representing the State on appeal is a prosecutor who can commit prosecutorial
       misconduct, but we will reframe the argument so that the substance may be addressed.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019                  Page 17 of 19
       choking is evidence of domestic battery. Because Indiana does not use special

       verdicts, we do not know why the jury acquitted Sabetti of strangulation. It

       may have believed, for example, that he did not impede her breathing or blood

       circulation. But the jury most likely convicted him of domestic battery for the

       choking because the evidence showed that her injuries resulted from that act.

       Therefore, any objection lodged or motion to strike filed by Sabetti’s appellate

       counsel would have been unsuccessful.6 We find no ineffective assistance on

       this basis.


                     III. This Court’s Discussion on Direct Appeal
[29]   Finally, Sabetti makes another somewhat unclear argument regarding this

       Court’s opinion on direct appeal. It seems as though he raises a freestanding

       claim of error that is similar to that raised regarding the State’s brief—he

       complains that this Court discussed evidence regarding the choking when he

       was convicted of domestic battery but acquitted of strangulation. This is an

       issue that was known and available on direct appeal because he could have

       raised it in a petition for rehearing or a petition to transfer. 7 As such, it is

       unavailable on post-conviction review. Williams v. State, 808 N.E.2d 652, 659

       (Ind. 2004).




       6
        We also note that all of these facts were in the record on appeal, meaning that they were available to the
       Court regardless of whether they were included in the State’s brief.
       7
         Sabetti argues that he could not have raised a new issue in a petition for rehearing. But an argument that
       this Court erred in its decision is precisely the type of issue that should be raised on rehearing.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019                   Page 18 of 19
[30]   Even if Sabetti had not waived this claim, it is meritless. This Court explicitly

       noted that he was acquitted of the strangulation and criminal confinement

       charges, and its discussion of the underlying facts in no way implies otherwise.

       He is not entitled to relief for this claim.


[31]   The judgment of the post-conviction court is affirmed.


       May, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019   Page 19 of 19
