MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                    FILED
regarded as precedent or cited before any                      Dec 27 2016, 8:38 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
George A. Foote                                          Gregory F. Zoeller
Pendleton, Indiana                                       Attorney General of Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

George A. Foote,                                         December 27, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         28A01-1607-PC-1726
        v.                                               Appeal from the Greene Circuit
                                                         Court
State of Indiana,                                        The Honorable Erik Allen, Judge
Appellee-Respondent.                                     Trial Court Cause No.
                                                         28C01-0909-PC-141



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016   Page 1 of 23
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, George A. Foote (Foote), appeals the post-conviction

      court’s denial of his successive petition for post-conviction relief, in which he

      challenged his conviction for two Counts of child molesting, Class A felonies;

      and two Counts of incest, one as a Class B felony and one as a Class C felony.


[2]   We affirm.


                                                    ISSUE

[3]   Foote raises six issues on appeal, which we consolidate and restate as the

      following single issue: Whether Foote received ineffective assistance of

      appellate counsel.


                           FACTS AND PROCEDURAL HISTORY

[4]   Foote is appealing from the denial of a successive petition for post-conviction

      relief. We rely on the facts as set forth in our court’s decision following the

      denial of Foote’s first petition for post-conviction relief:


              Foote and his wife, Karen Foote (“Karen”), had two daughters,
              J.F. and B.F. J.F. was born on December 20, 1990[,] and B.F.
              was born on December 17, 1991. In 2004, Karen traveled to
              Florida to attend her mother’s funeral. While Karen was away,
              Foote forced the girls to perform several sexual acts. He put his
              mouth on J.F.’s vagina, put his finger in her vagina, and put his
              penis in her buttocks. Foote also put his mouth on B.F.’s vagina
              and blew it while he masturbated into a black pipe of insulation.
              He also made B.F. suck on his penis.

              On one occasion in early March of 2007, Foote made B.F. take

      Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016   Page 2 of 23
        off all her clothes and lie on the living room floor. He pulled
        down his pants, made B.F. turn onto her stomach, and put his
        penis on her vagina. Foote’s penis penetrated B.F.’s vagina “[a]
        little.” He rubbed it until he ejaculated, and, while doing this,
        told B.F. that her ass looked good. On other occasions in 2007,
        Foote made B.F. suck on his penis or he put his mouth on her
        vagina and blew it or licked it.

        On March 12, 2007, J.F. and B.F. were playing outside when
        Foote returned from taking Karen to work. He told B.F. to go
        inside and told J.F. to clean herself and then come back outside.
        Foote and J.F. then went into Foote’s utility van, which Foote
        had equipped with a cushion that rested on the floor, a black
        bench, and a curtain behind the two seats to eliminate visibility
        through the front windshield. Foote had also painted the other
        windows white to eliminate all other visibility.

        Inside the van, Foote made J.F. undress and then he put his
        mouth on her vagina. He told J.F. that her vagina was dirty and
        he cleaned it with a rag and also placed his finger inside. Foote
        then made J.F. get on top of him. He pulled her down, put his
        penis in her vagina, and told J.F. to say “fuck me.” Having
        Foote’s penis inside her hurt J.F., and so she pulled off of him.
        Foote then made J.F. suck on his penis while he sat on the bench
        until he ejaculated into a tissue.

        The next day at school, J.F. told her guidance counselor that her
        father was molesting her. Her guidance counselor notified the
        Assistant Principal, who then alerted the Greene County
        Department of Child Services (DCS). DCS representatives
        arrived at the school and J.F. repeated her report. B.F. was then
        called from class and also interviewed by DCS. She initially
        denied any inappropriate contact, but then eventually told DCS
        that she was being molested by Foote. DCS detained the




Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016   Page 3 of 23
              children,[ 1] made arrangements for foster care, and sent the girls
              to the emergency room for a sexual abuse examination.

              After an investigation, DCS petitioned to have all three children
              declared Children in Need of Services (CHINS). The hearing on
              that petition was held on May 2, 2007. All of the children are
              currently placed with foster parents.

              On October 1, 2007, the State charged Foote with two counts of
              Child Molesting, both as [Class] A felonies, and two counts of
              Incest, one as a [Class] C felony and another as a [Class] B
              felony. Foote’s first jury trial ended in a mistrial due to an issue
              with a juror. His second jury trial started on August 18, 2008[,]
              and concluded on August 22, 2008. At the conclusion of the
              second trial, the jury found Foote guilty as charged.


      Foote, No. 28A04-1102-PC-140, 2011 WL 6916519, at *1-2 (internal citations

      omitted).


[5]   Prior to sentencing, on September 29, 2008, Foote fired his court-appointed trial

      counsel and retained the services of David E. Schalk (Attorney Schalk). On

      October 31, 2008, the trial court sentenced Foote to an aggregate term of eighty

      years in the Indiana Department of Correction. Still represented by Attorney

      Schalk,


              Foote initiated a direct appeal of his conviction on November 17,
              2008. On March 27, 2009, he filed a motion to dismiss, which
              we granted on April 7, 2009. The appeal was dismissed without
              prejudice so that Foote could file a petition for post-conviction



      1
       “The Footes also had a son who was also detained by DCS.” Foote v. State, No. 28A04-1102-PC-140, 2011
      WL 6916519, at *1 n.4 (Ind. Ct. App. Dec. 30, 2011), trans. denied; habeas corpus denied.

      Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016   Page 4 of 23
                 relief pursuant to the Davis/Hatton procedure.[ 2]

                 Thereafter, Foote filed petitions for post-conviction relief on
                 September 14, 2009, October 26, 2010, and November 18, 2010.
                 A hearing on the post-conviction petitions was held on
                 November 18, 2010. On February 3, 2011, the post-conviction
                 court issued findings and conclusions and denied Foote’s
                 petitions for post-conviction relief.


      Id. at *2.


[6]   Foote—via Attorney Schalk—appealed the post-conviction court’s decision,

      asserting that he had been denied the effective assistance of trial counsel. See id.

      Foote did not raise any issues on direct appeal. See id. On December 30, 2011,

      our court issued a memorandum decision affirming the denial of Foote’s

      petition for post-conviction relief. See id. at *1-7. We concluded that Foote’s

      arguments regarding ineffective assistance of trial counsel largely amounted to

      an “attack [on] matters of trial strategy,” and his remaining alleged errors

      “rest[ed] upon his own testimony or flimsy evidence that was ultimately




      2
          As explained in Foote’s first post-conviction relief appeal:

                 The Davis/Hatton procedure involves a termination or suspension of a direct appeal already
                 initiated, upon appellate counsel’s motion for remand or stay, to allow a post-conviction relief
                 petition to be pursued in the trial court. Peaver v. State, 937 N.E.2d 896, 897 n.1 (Ind. Ct. App.
                 2010), trans. denied. If, after a full evidentiary hearing, the post-conviction court denies the petition,
                 the appeal can be reinstated. Slusher v. State, 823 N.E.2d 1219, 1222 (Ind. Ct. App. 2005). Thus, in
                 addition to the issues initially raised in the direct appeal, the issues litigated in the post-conviction
                 relief proceeding can also be raised. Id. That way, a full hearing and record on the issue will be
                 included in the appeal. Id. If the post-conviction relief petition is denied after a hearing, and the
                 direct appeal is reinstated, then the direct appeal and the appeal of the denial for post-conviction
                 relief are consolidated. Id.
      Foote, No. 28A04-1102-PC-140, 2011 WL 6916519, at *1 n.3.

      Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016                 Page 5 of 23
      rejected by the post-conviction court” and not subject to being reweighed on

      appeal. Id. at *7.


[7]   On October 15, 2015, Foote filed a successive (amended) petition for post-

      conviction relief, asserting that he received ineffective assistance of appellate

      counsel. In particular, Foote claimed that Attorney Schalk was ineffective by

      failing to reinstate Foote’s direct appeal in order to argue that Foote was

      improperly sentenced and improperly labeled as a sexually violent predator.

      Foote also argued that Attorney Schalk was ineffective by failing to argue

      during the first post-conviction relief proceeding that Foote’s trial counsel had

      been ineffective by failing to file a motion to sever Foote’s offenses and failing

      to move to suppress DNA evidence based on chain of custody issues. Foote

      also alleged that Attorney Schalk was ineffective for failing to challenge a

      statement made by his trial counsel admitting that Foote’s DNA was found in

      his child’s underwear. Finally, Foote contended that Attorney Schalk was

      ineffective because during his representation of Foote, Attorney Schalk was also

      defending himself in an unrelated criminal matter. On January 7, 2016, and

      February 22, 2016, the post-conviction court conducted a hearing on Foote’s

      petition. On July 1, 2016, the post-conviction court issued its Order, denying

      Foote’s successive petition for post-conviction relief.


[8]   Foote now appeals. Additional facts will be provided as necessary.




      Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016   Page 6 of 23
                                      DISCUSSION AND DECISION

                                                 I. Standard of Review 3

[9]    A post-conviction proceeding provides a petitioner with the “opportunity to

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

       the direct appeal.” Maymon v. State, 870 N.E.2d 523, 526 (Ind. Ct. App. 2007)

       (citing Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S.

       1164 (2002)), trans. denied. A post-conviction proceeding, however, is not “a

       super appeal,” and it “provide[s] only a narrow remedy for subsequent

       collateral challenges to convictions.” Id. (citing Ben-Yisrayl, 738 N.E.2d at 258).

       Because post-conviction proceedings are civil in nature, the petitioner bears the

       burden of establishing his grounds for relief by a preponderance of the evidence.

       Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied, 540 U.S. 830

       (2003); see Ind. Post-Conviction Rule 1(5).


[10]   When appealing the denial of a petition for post-conviction relief, “the

       petitioner stands in the position of one appealing from a negative judgment.”

       Willoughby v. State, 792 N.E.2d 560, 562 (Ind. Ct. App. 2003), trans. denied. Our

       court does not reweigh the evidence or judge the credibility of witnesses. Id.


                In order to prevail, the petitioner must show that the evidence is
                without conflict and leads unerringly and unmistakably to a



       3
         We note that Foote’s appellate brief includes citations to the transcript/record of both the trial and his first
       post-conviction proceeding. During the hearing on his second petition for post-conviction relief, the post-
       conviction court took judicial notice of the records relating to Foote’s prior proceedings. In fact, the trial
       court indicated that it would “enter into evidence for the proceedings the transcripts of the trial.” (Tr. p. 6).
       However, none of these documents have been transmitted to our court.

       Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016              Page 7 of 23
               conclusion opposite that reached by the post-conviction court. It
               is only where the evidence is without conflict and leads to but
               one conclusion, and the post-conviction court has reached the
               opposite conclusion, that the decision will be disturbed as being
               contrary to law.


       Id. (internal citation and quotation marks omitted). We will review the post-

       conviction court’s factual findings for clear error, but we owe no deference to its

       conclusions of law. Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013).


                                   II. Ineffectiveness of Appellate Counsel

[11]   Foote claims that he received ineffective assistance of appellate counsel. The

       Sixth Amendment to the United States Constitution “entitles a criminal

       defendant to the effective assistance of counsel not only at trial, but during his

       first appeal as of right.” Ben-Yisrayl, 738 N.E.2d at 260. We review claims of

       ineffective assistance of appellate counsel according to the two-part test

       articulated in Strickland v. Washington, 466 U.S. 668 (1984), reh’g denied. First,

       the petitioner must “establish that his counsel’s performance was deficient.

       This requires a showing that his counsel’s representation fell below an objective

       standard of reasonableness and that the errors were so serious that they resulted

       in a denial of [the petitioner’s] Sixth Amendment right to counsel.” Dawson v.

       State, 810 N.E.2d 1165, 1173 (Ind. Ct. App. 2004) (internal citation omitted),

       trans. denied. Second, the petitioner “must demonstrate that the deficient

       performance prejudiced his defense. In order to establish prejudice, [the

       petitioner] must show that there is a reasonable probability that, but for his

       counsel’s unprofessional errors, the result of the proceeding would have been

       Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016   Page 8 of 23
       different. A reasonable probability is a probability sufficient to undermine

       confidence in the outcome.” Id. (internal citations omitted).


[12]   On review, we are mindful that counsel has considerable discretion in choosing

       strategy and tactics, and we accord those decisions deference. Timberlake v.

       State, 753 N.E.2d 591, 603 (Ind. 2001). In fact, there is a strong presumption

       “that counsel rendered adequate assistance and made all significant decisions in

       the exercise of reasonable professional judgment.” Dawson, 810 N.E.2d at 1173

       (quoting Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001)). “Isolated

       mistakes, poor strategy, inexperience, and instances of bad judgment do not

       necessarily render representation ineffective.” Timberlake, 753 N.E.2d at 603.

       With respect to appellate counsel, our supreme court has recognized three

       categories of ineffective assistance claims: “(1) denying access to an appeal; (2)

       failing to raise issues; and (3) failing to present issues competently.” Dawson,

       810 N.E.2d at 1173 (citing Timberlake, 753 N.E.2d at 604).


[13]   Here, Foote primarily relies on the second category of appellate counsel

       ineffectiveness—failing to raise issues. “Ineffective assistance is very rarely

       found in cases where a defendant asserts that appellate counsel failed to raise an

       issue on direct appeal.” Reed v. State, 856 N.E.2d 1189, 1196 (Ind. 2006).

       Based on our longstanding deferential approach to appellate counsels’ strategic

       decisions to raise certain issues on appeal, in order to show that his counsel’s

       performance was deficient, Foote “must show from the information available in

       the trial record or otherwise known to appellate counsel that appellate counsel

       failed to present a significant and obvious issue and that this failure cannot be

       Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016   Page 9 of 23
       explained by any reasonable strategy.” Timberlake, 753 N.E.2d at 606 (quoting

       Ben-Yisrayl, 738 N.E.2d at 260-61). We emphasize that a claim of ineffective

       assistance of counsel will be rejected if the petitioner fails to establish either

       deficient performance or prejudice. McCullough v. State, 987 N.E.2d 1173, 1176

       (Ind. Ct. App. 2013). Thus, if we are able to “dismiss an ineffective assistance

       claim on the prejudice prong, we need not address whether counsel’s

       performance was deficient.” Id. (quoting Lee v. State, 892 N.E.2d 1231, 1233

       (Ind. 2008)).


                                A. Failure to Raise Issues on Direct Appeal

[14]   Foote first contends that Attorney Schalk was ineffective because, after moving

       to dismiss Foote’s direct appeal in favor of pursuing additional evidence

       through the Davis/Hatton procedure, Attorney Schalk failed to reinstate Foote’s

       direct appeal. Instead, only issues pertaining to the denial of Foote’s first

       petition for post-conviction relief were raised on appeal. Foote now argues that

       Attorney Schalk should have challenged the propriety of Foote’s sentence on

       direct appeal.


[15]   In his successive petition for post-conviction relief, Foote asserted that the trial

       court “erroneously aggravated beyond the presumptive [sentence]” the two

       Counts of Class A felony child molesting, which, according to Foote, were

       “charged as occurring in 2004.” (Appellant’s App. p. 38). For each of these

       Counts, the trial court imposed a forty-year sentence, to be served

       consecutively. At the time these crimes were committed, Indiana Code section

       35-50-2-4 (2004) provided that “[a] person who commits a Class A felony shall

       Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016   Page 10 of 23
       be imprisoned for a fixed term of thirty (30) years, with not more than twenty

       (20) years added for aggravating circumstances or not more than ten (10) years

       subtracted for mitigating circumstances.” If a trial court “deviated from the

       fixed term presumptive sentence, it was required to ‘(1) identify all significant

       mitigating and aggravating circumstances; (2) state the specific reason why each

       circumstance ha[d] been determined to be mitigating or aggravating; and (3)

       articulate the court’s evaluation and balancing of circumstances.’” Anglemyer v.

       State, 868 N.E.2d 482, 486 (alteration in original) (quoting Prickett v. State, 856

       N.E.2d 1203, 1207 (Ind. 2006)), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


[16]   In 2000 and then again in 2004, the United States Supreme Court stipulated

       that “[o]ther than the fact of a prior conviction, any fact that increases the

       penalty for a crime beyond the prescribed statutory maximum must be

       submitted to a jury, and proved beyond a reasonable doubt.” Id. (alteration in

       original) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) & Blakely v.

       Washington, 542 U.S. 296, 301 (2004), reh’g denied). In response to Blakely, our

       supreme court determined “that Indiana’s fixed term sentencing scheme” was

       unconstitutional “because ‘it mandates both a fixed term and permits judicial

       discretion in finding aggravating or mitigating circumstances to deviate from

       the fixed term.’” Id. at 487 (quoting Smylie v. State, 823 N.E.2d 679, 685 (Ind.

       2005)). “To remedy the constitutional infirmity,” the Smylie court determined




       Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016   Page 11 of 23
       that “a jury must find the facts used to enhance a fixed presumptive term.” Id. 4

       In his petition for post-conviction relief, Foote argued that the seven

       aggravating circumstances identified by the trial court at the time of sentencing

       ran afoul of Blakely as they were not found by a jury to have been proven

       beyond a reasonable doubt. Foote also insisted that the trial court improperly

       accorded minimal weight to the two mitigating circumstances that it identified.

       Thus, Foote’s position in his post-conviction relief petition was that Attorney

       Schalk was ineffective in failing to challenge these errors on direct appeal.


[17]   Between the commission of Foote’s crimes in 2004 and his sentencing in 2008,

       Indiana’s sentencing statutes were amended. Nevertheless, the post-conviction

       court determined that the trial court had properly sentenced Foote because two

       of its aggravating circumstances were, in fact, found by the jury: that Foote

       violated a position of trust by molesting his biological daughters and that there

       were multiple victims. On appeal, Foote now appears to concede that these

       aggravating circumstances were found by the jury; however, he argues that the

       trial court erroneously relied on the position of trust as an aggravating

       circumstance:




       4
          A few weeks after the Indiana Supreme Court issued its Smylie decision, the Indiana General Assembly
       amended Indiana’s sentencing statutes. See Anglemyer, 868 N.E.2d at 487. The General Assembly “left intact
       lower and upper limits for each class of felony offenses, but eliminated fixed presumptive terms in favor of
       ‘advisory sentences’ that are between the minimum and maximum terms. In addition, the Legislature
       eliminated the requirement that trial courts must consider certain mandatory circumstances when
       determining the exact sentence to be imposed. Rather, the amended statute now includes a non-exhaustive
       list of aggravating and mitigating circumstances trial courts ‘may consider.’” Id. (internal citation omitted)
       (quoting Ind. Code § 35-38-1-7.1(a)-(b)).

       Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016        Page 12 of 23
               Since Foote was also found guilty of two incest counts, being
               biologically related was found by the jury. When the court made
               its findings that Foote violated that position, they also concluded
               it to be found that Foote was biologically related. If incest is a
               Class B felony, then how can a finding of child molest[ing] by
               incest create a [forty-]year offense? It is illogical and
               unreasonable. Furthermore, legislators created a class of persons
               who receive less punishment for the same offense as those who
               commit the offense when not related.


       (Appellant’s Br. p. 20). As to the trial court’s identification of multiple victims

       as an aggravating circumstance, Foote does not challenge that this is a valid

       aggravator or that it was found to be proven by the jury. Rather, he insists that

       the trial court should have accorded more weight to the mitigating

       circumstances—namely, his lack of a criminal history.


[18]   We find no merit in Foote’s largely-incoherent claim, and we further find that

       he has failed to establish that he was prejudiced by Attorney Schalk’s failure to

       raise sentencing issues on direct appeal. Foote was convicted of two Counts of

       child molesting as Class A felonies for acts committed in 2004 and two Counts

       of incest, one as a Class B felony and one as a Class C felony, for acts

       committed in 2007. Foote’s Blakely argument applies only to the sentences for

       the offenses committed prior to 2005 (i.e., prior to when Indiana’s sentencing

       statutes were amended). While the trial court identified seven aggravating

       circumstances, the post-conviction court distinguished two factors that were

       found by a jury in order to support aggravating Foote’s sentences for Class A

       felony child molesting. It is well established that “[a]busing a ‘position of trust’

       is, by itself, a valid aggravator which supports the maximum enhancement of a
       Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016   Page 13 of 23
       sentence for child molesting.” Singer v. State, 674 N.E.2d 11, 14 (Ind. Ct. App.

       1996). Based on the fact that it found Foote guilty of incest, the jury clearly

       found that Foote was the biological father of the children that he molested. See

       I.C. § 35-46-1-3 (2007) (defining the crime of incest). “There is no greater

       position of trust than that of a parent to his own young child.” Hart v. State, 829

       N.E.2d 541, 544 (Ind. Ct. App. 2005). Accordingly, the trial court’s

       identification of position of trust as a valid aggravating circumstance did not

       run afoul of Blakely.


[19]   Moreover, a “trial court is not obligated to find the existence of mitigating

       circumstances, nor is it required to give the same credit as the defendant does to

       the defendant’s proffered mitigating circumstances.” Singer, 674 N.E.2d at 14.

       Here, the trial court considered that Foote had no prior criminal history but

       determined that it was outweighed by the aggravating factors. This was well

       within the trial court’s discretion. Id. at 18. Therefore, because Foote has failed

       to establish that he would have prevailed on direct appeal if Attorney Schalk

       had raised certain sentencing issues, his claim of ineffectiveness must fail.


                   B. Failure to Raise Issues Regarding Trial Counsel’s Ineffectiveness

[20]   Foote next contends that Attorney Schalk was ineffective by failing to raise

       specific instances of trial counsel ineffectiveness.

               When the claim of ineffective assistance is directed at appellate
               counsel for failing fully and properly to raise and support a claim
               of ineffective assistance of trial counsel, a defendant faces a
               compound burden on postconviction. The postconviction court
               must conclude that appellate counsel’s performance was deficient

       Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016   Page 14 of 23
               and that, but for the deficiency of appellate counsel, trial
               counsel’s performance would have been found deficient and
               prejudicial.


       Timberlake, 753 N.E.2d at 604. In other words, Foote bears the burden of

       establishing “the two elements of ineffective assistance of counsel separately as

       to both trial and appellate counsel.” Id. (citing Ben-Yisrayl, 738 N.E.2d at 261-

       62).


[21]   In Foote’s first post-conviction relief proceeding, Attorney Schalk

       unsuccessfully argued that Foote’s trial counsel had rendered ineffective

       assistance based on trial counsel’s purported failure “to impeach J.F. and B.F.

       at trial with their CHINS testimonies;” to “call certain witnesses at trial;” and

       to “address other problems or advance other defenses that Foote claims to have

       discussed with him.” Foote, No. 28A04-1102-PC-140, 2011 WL 6916519, at *2.

       Foote now argues that Attorney Schalk was ineffective because he failed to

       include in his trial counsel ineffectiveness claim that trial counsel should have

       moved for severance of the charges and should have challenged the State’s

       DNA evidence. We address each in turn.


                                            1. Severance of Offenses

[22]   Although it is not entirely clear, Foote appears to assert that his trial counsel

       should have moved to sever the child molesting charges from the incest charges

       and that Attorney Schalk was deficient in failing to argue that trial counsel was

       ineffective for not doing so. Indiana Code section 35-34-1-9(a) provides that



       Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016   Page 15 of 23
               [t]wo (2) or more offenses may be joined in the same indictment
               or information, with each offense stated in a separate count,
               when the offenses:
               (1) are of the same or similar character, even if not part of a
               single scheme or plan; or
               (2) are based on the same conduct or on a series of acts
               connected together or constituting parts of a single scheme or
               plan.


       However,


               [w]henever two (2) or more offenses have been joined for trial in
               the same indictment or information solely on the ground that
               they are of the same or similar character, the defendant shall
               have a right to a severance of the offenses. In all other cases the
               court, upon motion of the defendant or the prosecutor, shall
               grant a severance of offenses whenever the court determines that
               severance is appropriate to promote a fair determination of the
               defendant’s guilt or innocence of each offense considering:
               (1) the number of offenses charged;
               (2) the complexity of the evidence to be offered; and
               (3) whether the trier of fact will be able to distinguish the
               evidence and apply the law intelligently as to each offense.


       I.C. § 35-34-1-11(a).


[23]   In this case, Foote asserts ineffectiveness of counsel simply based on his belief

       that he was entitled to severance as a matter of right. Notwithstanding whether

       Foote would, in fact, have been entitled to severance of his offenses if such a

       motion had been made, Foote has presented no argument that he was

       prejudiced by the fact that his four charges were tried together. Therefore,




       Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016   Page 16 of 23
       Foote has failed to satisfy his burden in order to establish ineffective assistance

       of appellate counsel on this basis.


                                               2. DNA Evidence

[24]   Foote also asserts that Attorney Schalk was ineffective in failing to identify trial

       counsel’s errors with respect to the State’s DNA evidence. During the trial, the

       State presented evidence indicating that Foote’s DNA was present in mixtures

       found in a pair of underwear belonging to J.F., as well as in a tissue (in which

       Foote had purportedly ejaculated) and from a hair (which was found in the

       tissue). According to the DNA analyst, the likelihood that the DNA found in

       the underwear came from Foote was 1 in 580 million; the likelihood that the

       DNA in the tissue came from Foote was 1 in 4.7 million; and the likelihood

       that the DNA from the hair came from Foote was 1 in 16 million. Because a

       statistical frequency of 1 in 6 trillion was required in order to conclude that the

       DNA “match[ed]” that taken from Foote for comparison, the DNA analyst

       interpreted the results as being unable to exclude Foote as the source of the

       DNA. (Tr. p. 25). The DNA analyst explained that the DNA was extracted

       from mixtures of DNA of which Foote was not the major contributor (i.e.,

       J.F.’s DNA was the major profile), and the amount of DNA did not allow the

       analyst “to separate both of those profiles into their constituent parts.” (Tr. p.

       30). The DNA analyst further testified at the post-conviction hearing that “[t]t

       is not inconclusive. It is not a match. It is in between there. If it was

       inconclusive, there would be no statistic for it.” (Tr. p. 36). Although we were

       not presented with the trial transcript in order to know how the DNA analyst


       Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016   Page 17 of 23
       actually testified during the trial, she stated at the post-conviction hearing that

       she would not have told the jury that it was conclusively Foote’s DNA; rather,

       she would have stated the statistical frequencies and “that you could not

       exclude [Foote’s] standard as being a contributor to that mixture.” (Tr. p. 30).


[25]   According to Foote, his trial counsel improperly conceded during trial that the

       DNA belonged to Foote, and despite the trial court’s instruction that trial

       counsel’s statements are not to be considered as evidence, such a concession

       was tantamount to “conceding to the charge itself.” (Appellant’s Br. p. 27).

       We cannot agree that such a statement by trial counsel prejudiced the outcome

       of Foote’s case in light of the fact that the jury was presented with evidence

       indicating a strong statistical likelihood that Foote deposited the incriminating

       DNA. Furthermore, Foote testified to his innocence during the trial, and it was

       within the discretion of the jury to discredit his testimony. During the post-

       conviction hearing, Foote’s trial counsel testified that he believed the State’s

       evidence identified Foote’s DNA and further noted that Foote had admitted to

       ownership of the DNA. Thus, as a matter of trial strategy, Foote’s trial counsel

       intended to have Foote testify as to an innocent explanation for how his DNA

       was discovered in certain places. As it is not the role of this court to second-

       guess the strategies employed by defense counsel—and based on Foote’s failure

       to establish prejudice—we cannot say that trial counsel offered ineffective

       assistance on this basis. See Timberlake, 753 N.E.2d at 603. Without

       establishing the ineffectiveness of trial counsel, Foote’s claim of ineffective

       assistance of appellate counsel must also fail.


       Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016   Page 18 of 23
[26]   Regarding the DNA evidence, Foote also argues that Attorney Schalk was

       ineffective by overlooking the trial court’s failure to challenge the chain of

       custody. “An adequate foundation establishing a continuous chain of custody

       is established if the State accounts for the evidence at each stage from its

       acquisition, to its testing, and to its introduction at trial.” Espinoza v. State, 859

       N.E.2d 375, 382 (Ind. Ct. App. 2006). The State is not required to

               establish a perfect chain of custody, and once the State “strongly
               suggests” the exact whereabouts of the evidence, any gaps go to
               the weight of the evidence and not to admissibility. Moreover,
               there is a presumption of regularity in the handling of evidence
               by officers, and there is a presumption that officers exercise due
               care in handling their duties. To mount a successful challenge to
               the chain of custody, one must present evidence that does more
               than raise a mere possibility that the evidence may have been
               tampered with.


       Id. (internal citations omitted).


[27]   Foote directs our attention to a “Dissemination Record (Telephone)” from the

       crime lab, in which the serologist who processed the DNA evidence indicated

       that she contacted one of the investigators to inquire “if she knew where the

       unmarked swabs in item 9 had been collected from. [The investigator] said that

       she was present for the collection of the swabs and that they were oral swabs

       from George Foote.” (Appellant’s Exh. 2). Foote asserts that the fact that the

       unmarked swabs did not identify him as the source of the DNA samples renders

       the DNA kit unreliable. However, the serologist clarified during the post-

       conviction hearing that she did not call the investigator to inquire “about who

       Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016   Page 19 of 23
       [the swabs] were collected from. I was calling about what type of swabs they

       probably were.” (Tr. p. 49). Whether the swabs are from the oral cavity or

       another area of the body determines how the DNA evidence is processed, and,

       here, the investigator confirmed that Foote had provided oral swabs for testing.

       The serologist further stated that the swabs were contained in a box which was

       labeled with Foote’s name. Foote’s assertion on appeal that the evidence

       clearly did not remain in an undisturbed location because his name was “later

       placed on the kit in order to present it [a]t trial as evidence” has absolutely no

       basis in the record. (Appellant’s Br. p. 29).


[28]   Foote additionally challenges the chain of custody based on his belief that the

       detective who collected the evidence

               did not demonstrate he performed his job with regularity and due
               care when he took home evidence that was not fully labeled,
               failed to refrigerate the suspect kit, used an expired kit and failed
               to follow the instructions when doing so, failed to include a vital
               piece of information, and failed to include the name of the
               witness on the kit that claims to have been present for the
               collection.


       (Appellant’s Br. p. 29). The evidence establishes that, after collecting the DNA

       evidence from Foote, the detective packaged it, placed it in his patrol car, and

       released it to another investigator the following morning. The detective testified

       that it is common practice to take evidence home because it remains in his

       possession, locked in his patrol car for which he has the only set of keys.

       During the post-conviction hearing, Attorney Schalk testified that he would not


       Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016   Page 20 of 23
       have raised a chain of custody issue based on the fact that the detective took the

       evidence home if the detective “could vouch for it being in his possession until

       he turned it over to the next person who signed for it.” (Tr. p. 97). We likewise

       find no merit in Foote’s chain of custody claim as there is no evidence of any

       gap in the possession of the evidence. See Donahoo v. State, 640 N.E.2d 702,

       703-04 (Ind. 1994) (finding sufficient chain of custody where evidence was

       stored in locked vehicles).


[29]   As previously mentioned, there is no support in the record for the assertion that

       the evidence kit was improperly labeled. Moreover, with respect to

       refrigeration of the evidence, expiration of the kit, or non-conformance with the

       kit’s instructions, Foote did not address these issues in his petition for post-

       conviction relief and he did not ask any questions relating to these matters

       during the post-conviction hearing; therefore, they are waived. See Stevens, 770

       N.E.2d at 746 (“[A]ny ‘[i]ssues not raised in the petition for post-conviction

       relief may not be raised for the first time on post-conviction appeal.’” (second

       alteration in original) (quoting Allen v. State, 749 N.E.2d 1158, 1171 (Ind.

       2001))). Accordingly, Foote has failed to establish that Attorney Schalk’s

       performance was deficient—let alone prejudicial—based on the fact that he did

       not raise ineffective assistance of trial counsel arguments concerning the chain

       of custody.


                         C. Appellate Counsel’s Simultaneous Self-Representation

[30]   Finally, Foote claims that Attorney Schalk provided ineffective assistance of

       counsel because, during his representation of Foote, Attorney Schalk was also

       Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016   Page 21 of 23
       involved in his own criminal proceedings. Although he was initially

       represented by counsel, at times during the pendency of his case, Attorney

       Schalk acted pro se. On November 17, 2009, following a bench trial, Attorney

       Schalk was convicted of attempted possession of marijuana as a Class A

       misdemeanor. On February 28, 2011, our court affirmed his conviction. See

       Schalk v. State, 943 N.E.2d 427 (Ind. Ct. App. 2011), trans. denied. The Indiana

       Supreme Court subsequently suspended Attorney Schalk from the practice of

       law “for a period of not less than nine months, without automatic

       reinstatement, beginning May 24, 2013.” In re Schalk, 985 N.E.2d 1092, 1093

       (Ind. 2013) (Mem).


[31]   Foote admits that he “has no authority that demands that his counsel may not

       defend himself and a client concurrently.” (Appellant’s Br. p. 30).

       Nonetheless, “Foote would show that [Attorney Schalk] was not acting in his

       best interest when he allowed Foote to retain him in a major felony case while

       counsel was also acting in a self-preservation mode.” (Appellant’s Br. p. 30).

       Except to suggest that Attorney Schalk’s failure to reinstate Foote’s direct

       appeal was the result of being distracted with his own case—as opposed to

       being a matter of strategy as Attorney Schalk testified during the post-

       conviction hearing—Foote has not offered any argument that Attorney Schalk’s

       self-representation in his own marijuana case negatively impacted his

       representation of Foote. Furthermore, the only evidence presented on this issue

       was the testimony of Attorney Schalk, who stated during the post-conviction

       hearing that he did not neglect Foote’s case in favor of his own because “there


       Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016   Page 22 of 23
       wasn’t much to do in [Attorney Schalk’s case]” as “[a]ll the facts were totally

       on the table and the question was [whether it was] legal or not and I had my

       reasons why I thought it was and nobody could actually say why it wasn’t.

       They just didn’t like it.” (Tr. p. 110). Thus, Foote has not demonstrated that

       he received ineffective assistance of appellate counsel. 5


                                                   CONCLUSION

[32]   Based on the foregoing, we conclude that Foote did not receive ineffective

       assistance of appellate counsel.


[33]   Affirmed.


[34]   Crone, J. and Altice, J. concur




       5
          Foote additionally claims that his two convictions for Class A felony child molesting are unconstitutional
       because the General Assembly “never intended to punish those who offend within the family as severely as
       those who offend against a child outside the family and become dangerous to all of society and not just to
       their own family.” (Appellant’s Br. p. 35). However, Foote did not raise this issue in his petition for post-
       conviction relief and, therefore, has waived the matter for appeal. See Stevens, 770 N.E.2d at 746. Waiver
       notwithstanding, Foote implores our court to address this issue on the merits. As noted above, this appeal
       stems from a successive petition for post-conviction relief. Despite ample opportunity to raise this alleged
       issue in either of his post-conviction relief petitions, Foote has waited until this appeal. Therefore, we decline
       his request and find his argument waived.

       Court of Appeals of Indiana | Memorandum Decision 28A01-1607-PC-1726 | December 27, 2016            Page 23 of 23
