      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                           Jun 09 2015, 6:31 am
      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.



      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Stanley F. Wruble III                                     Gregory F. Zoeller
      Matthew J. Anderson                                       Attorney General of Indiana
      Wruble & Associates
                                                                Henry A. Flores, Jr.
      South Bend, Indiana
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      James K. Chenoweth,                                      June 9, 2015

      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               20A04-1410-PC-465
              v.                                               Appeal from the Elkhart Circuit
                                                               Court

      State of Indiana,                                        The Honorable Terry C. Shewmaker,
                                                               Judge
      Appellee-Respondent
                                                               Trial Court Cause No.
                                                               20C01-1308-PC-51




      Mathias, Judge.

[1]   James K. Chenoweth (“Chenoweth”) appeals the Elkhart Circuit Court’s denial

      of his petition for post-conviction relief.


[2]   We affirm.

      Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015           Page 1 of 18
                                     Facts and Procedural History

[3]   In 2009, Chenoweth was convicted of two counts of Class A felony child

      molesting and ordered to serve an aggregate forty-year sentence in the

      Department of Correction. Chenoweth appealed his convictions, and facts

      relevant to the post-conviction proceedings were discussed in his direct appeal:

              In 2006, A.S., the victim’s mother, dated Chenoweth for
              approximately three months. During this time, A.S., who
              suffered from a multitude of mental disorders, routinely allowed
              Chenoweth to care for the four-year-old victim. J.S., A.S.’s
              mother, also routinely cared for the victim. Because of her mental
              disorders, A.S. was considered by J.S. to be developmentally
              between twelve and fourteen years old.
              After A.S. and Chenoweth broke up, they remained friends, and
              Chenoweth often cared for the victim. A.S. married E.S., and the
              couple allowed the forty-year-old Chenoweth to move in with
              them and care for the victim. Indeed, while A.S. was hospitalized
              for approximately three weeks of mental treatment, Chenoweth
              spent a considerable amount of time with the victim.
              During this time, J.S. observed the victim simulating oral sex
              with her dolls. When A.S. was released from the hospital, J.S.
              informed her of the victim’s behavior. A.S. was indifferent and
              told J.S. to mind her own business.
              In January or February of 2007, J.S. again observed the victim
              simulating sexual behavior with the dolls by placing an unclothed
              male doll on its back and straddling him with an unclothed
              female doll. J.S. informed A.S. and E.S. of the behavior, but no
              action was taken.
              From March 9-11, 2007, Chenoweth was permitted to watch the
              victim for three consecutive days at his own residence. On March
              13, 2007, Chenoweth again watched the victim, and after
              Chenoweth had left for the evening, the victim told E.S. that she
              had pain in her “hoo-hoo,” the term she used for her vagina. E.S.
      Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015   Page 2 of 18
              and A.S. inspected the victim and noticed that both the exterior
              and interior of the victim’s vagina were red and cracking “like
              dried dirt.”
              On March 17, 2007, Chenoweth watched the victim while E.S.
              and A.S. went out for St. Patrick’s Day. While at a bar, they
              discussed the victim’s condition with friends, who urged them to
              take further action. Consequently, E.S. and A.S. left the bar and
              called the police.
              On March 23, 2007, Gayla Konanz, a forensic interviewer with
              the Child and Advocacy Center (“CAC”) conducted a forensic
              interview of the victim. During the interview, the victim
              indicated that Chenoweth had touched her vagina with his
              finger, had placed his finger inside her vagina, had inserted his
              penis in her vagina, and had ejaculated after placing his penis in
              the victim’s mouth. The victim also said that Chenoweth had
              touched her “butt” and that it had hurt. The victim said that
              Chenoweth had told her not to tell anyone and to keep a secret
              about his penis or he would go “bye-bye .”

      Chenoweth v. State, No. 20A03-0912-CR-566, 930 N.E.2d 1244 (Ind. Ct. App.

      Aug. 3, 2010), trans. denied (record citation omitted).


[4]   Chenoweth appealed his convictions and raised three issues: 1) whether the trial

      court abused its discretion when it admitted the victim’s videotaped forensic

      interview because “there [was] no sufficient indication of the time frame

      between the alleged acts of molestation and the date the videotape was made;”

      2) whether Chenoweth’s trial counsel was ineffective for failing to enter into

      evidence the transcript of the Protected Person’s Statute hearing because the

      transcript would have shown that the “victim testified that all [Chenoweth] did

      was touch the outside of her vagina with his finger;” and 3) whether the trial

      court abused its discretion when it sentenced Chenoweth and whether his forty-

      Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015   Page 3 of 18
      year aggregate sentence was inappropriate in light of the nature of the offense

      and the character of the offender. Id. Our court rejected Chenoweth’s

      arguments and affirmed his convictions and sentence.


[5]   On October 5, 2013, Chenoweth filed a petition for post-conviction relief and

      alleged, in part, that his appellate counsel was ineffective. Specifically,

      Chenoweth alleged that appellate counsel should have 1) argued that admission

      of the victim’s videotaped statement violated his Sixth Amendment right to

      confrontation; and 2) argued that his trial counsel was ineffective for failing to

      argue that the victim was not unavailable to testify at trial.


[6]   A hearing was held on Chenoweth’s petition for post-conviction relief on

      March 13, 2014. Only Chenoweth and his mother testified at the hearing.

[7]   On August 1, 2014, the post-conviction court issued findings of fact and

      conclusions of law denying Chenoweth’s requested relief. In pertinent part, the

      court found:

              19. In the instant case, Petitioner’s first claim is that the trial
              court committed fundamental error in admitting the child
              victim’s recorded forensic interview over Petitioner’s
              Confrontation Clause objection after finding that the victim was
              unavailable for medical reasons when the court determined that
              she would suffer emotional trauma if forced to testify in front of
              Petitioner at trial despite her ability to do so at the protected
              persons hearing without losing her ability to reasonably
              communicate. The Indiana Court of Appeals specifically
              discussed the foundational requirement provisions of the
              Protected Persons Statute, and held that the trial court ‘found
              that the time, content and circumstances of the videotaped

      Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015   Page 4 of 18
        interview provided sufficient indications of reliability,” and that
        there was no error with its admission. To the extent that
        Petitioner invites the court to reconsider this matter as a
        freestanding claim of fundamental error, said claim is res judicata
        and not available as grounds for Post Conviction Relief.
        20. Petitioner, however, attempts to raise the aforementioned
        issue under the umbrella of an ineffective assistance of trial
        counsel claim. As noted in paragraph 4 herein above, Petitioner
        already raised the issue of whether his trial counsel was
        ineffective for not introducing a transcript of the subject video
        recording at trial and on direct appeal. In the current post
        conviction proceedings, Petitioner now alleges his counsel was
        ineffective for failing to object to the trial court’s determination
        that the child victim was not available to testify at trial, and
        challenging the admission of the video on that basis.
        21. Petitioner can not raise a new theory of ineffective assistance
        of counsel in post conviction proceedings. . . .
        22. In the instant case, because Petitioner argued ineffective
        assistance of counsel on appeal, and the Indiana Court of
        Appeals decided against him on the merits, res judicata prohibits
        Petitioner from arguing new grounds for ineffective assistance in
        post conviction relief.
        23. Even if Petitioner’s argument was considered on the merits,
        the record does not support Petitioner’s claim that counsel was
        ineffective for failing to object to the trial court’s determination
        that the child victim was no available to testify at trial. Mari
        Duerring (“Duerring”) represented Petitioner through the
        pendency of this Cause, including during the deposition of the
        child victim, the pre-trial Protected Person’s Hearing, and the
        jury trial. During the Protected Person’s hearing, the State
        presented evidence that the victim, a minor child, was suffering
        from a medical condition. Specifically, Dr. Allen J. Stuckey,
        M.D., a board certified physician in both pediatrics and
        psychiatry, testified that he believed the victim would suffer a
        severe trauma if forced to testify at trial. Dr. Stuckey further

Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015   Page 5 of 18
        testified that he believed that the victim was suffering from Post-
        Traumatic Stress Disorder caused by severe trauma and further
        psychological damage would likely result if she was required to
        testify at trial. The victim was present at the Protected Persons
        Hearing, testified, and was cross-examined by counsel for
        Petitioner. Moreover, at the Protected Persons Hearing, counsel
        for Petitioner objected to the admissibility of the video recorded
        forensic interview of the victim on the ground that the same
        would violate Petitioner’s right to confrontation secured by the
        Sixth Amendment.
        24. The trial court took admissibility of the video taped recording
        under advisement, and on September 29, 2008, issued its
        confidential Order. That Order provided, in relevant part, as
        follows:
                 In this case, the court found that Dr. Stuckey’s conclusions
                 concerning the harm which the victim will suffer should
                 she be required to testify at trial are supported by the
                 evidence. Accordingly, the victim is deemed unavailable to
                 testify. Defendant had the opportunity to depose the
                 victim and to cross examine her at the admissibility
                 hearing; therefore, Defendant’s constitutional right to
                 confront and cross-examine his accuser has been
                 preserved.
        25. During the jury trial in the underlying matter, the State
        offered the video recording of the victim’s forensic interview as
        evidence. The record establishes that Duerring again objected
        and argued that admission of the video recorded statement would
        run afoul of Petitioner’s rights under the Confrontation Clause of
        the Sixth Amendment. The Court, however, ruled that the child
        victim was unavailable as a witness and the video recording of
        his forensic interview would be admitted as evidence at trial.
        26. It is well established that the Protected Person’s Statute, if
        followed precisely, satisfies the constitutional guarantees of
        confrontation. . . . In addition, it is clear that counsel for
        Petitioner not only had the opportunity, but availed herself

Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015   Page 6 of 18
        thoroughly of that right, in cross-examination of the victim
        during the Protected Person’s Hearing. Petitioner has not
        established that any error occurred regarding the admissibility of
        the video recorded interview. Accordingly, failure to challenge or
        object to the same cannot be the basis for ineffective assistance of
        trial counsel. Counsel did object, however, the court allowed the
        admission of the video recorded statement. Petitioner’s
        dissatisfaction with this result does not give him the right to re-
        litigate the matter and does not amount to ineffective assistance
        of counsel simply because the issue was decided adversely to
        him.
        Petitioner also contends that his appellate counsel was ineffective
        for not raising the issue of ineffective assistance of trial counsel
        on direct appeal with respect to the admission of the videotaped
        interview.
                                                 ***
        29. The record establishes that Attorney Hilgendorf raised both
        the issue of whether the admission of the video recording was
        error, and whether trial counsel was ineffective for not
        introducing a transcript of the subject video recording, on direct
        appeal. Essentially, Petitioner is simply combining these issues
        in an attempt to again raise them framed as an ineffective
        assistance of counsel claim, which is inappropriate as noted in
        paragraph 21 herein above. Clearly, appellate counsel was aware
        of, and did raise, the issue of error regarding the admission of the
        video recorded forensic interview of the victim. This claim is res
        judicata regardless of how it is framed and not available for post
        conviction review.
        30. Even if the court considered the claim on the merits, it fails.
        During the evidentiary hearing on Petitioner’s request for Post
        Conviction Relief, the only evidence presented regarding whether
        his appellate counsel was aware of the potential issue of counsel
        ineffectiveness for failing to challenge the admission of the
        videotape came from Petitioner’s mother, Linda Richmond.
        Petitioner’s appellate counsel was not called to testify. Ms.

Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015   Page 7 of 18
              Richmond testified that she and appellate counsel discussed
              various theories of ineffective assistance of counsel, the
              implications of challenging the admissibility of the video
              recorded interview, as well as strategic reasons as to why
              appellate counsel might choose to raise some issue and not
              others. Petitioner presented no evidence from any witness
              possessing the knowledge, experience, education, skill, and/or
              credibility as a legal professional in the State of Indiana who
              challenged appellate counsel’s strategy in this case. Petitioner
              failed in his burden of showing that any potential unraised issues
              were more significant and/or clearly stronger than the issues
              raised. Thus, neither deficient performance nor likelihood of a
              different outcome had different issues been raised was
              established. This court is convinced that even if appellate counsel
              had presented the issue of admissibility of the video recorded
              interview in any different manner, that such claim would not
              have been treated differently by the Indiana Court of Appeals.

      Appellant’s App. pp. 9-15. Chenoweth now appeals the denial of his petition for

      post-conviction relief.


                                    I. Untimely Notice of Appeal

[8]   The State argues that Chenoweth’s appeal should be dismissed because he did

      not file his Notice of Appeal within thirty days after the trial court issued its

      order denying the petition for post-conviction relief. See Ind. Appellate Rule 9.

      If a Notice of Appeal is not timely filed, the right to appeal is forfeited.1 Here,


      1
        Post-Conviction Rule 2(1) allows an eligible defendant to request permission to file a belated
      appeal where the failure to file a timely notice of appeal was not the petitioner's fault and the
      petitioner has been diligent in seeking permission to file a belated notice. Ind. Post-Conviction
      Rule 2(1)(a); Cooper v. State, 917 N.E.2d 667, 673 (Ind. 2009). The defendant may seek
      permission to file a belated notice of appeal of his conviction or sentence but not from an entry
      of judgment in a post-conviction relief proceeding. See Taylor v. State, 939 N.E.2d 1132, 1135
      (Ind. Ct. App. 2011).

      Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015    Page 8 of 18
       judgment was entered on August 1, 2014, and the Notice of Appeal should

       have been filed no later than September 2, 2014.2 However, Chenoweth filed his

       Notice of Appeal on September 4, 2014, two days late.


[9]    Failure to timely file a Notice of Appeal is not jurisdictional, but the appellant

       forfeits his right to an appeal absent “extraordinarily compelling reasons.” In re

       Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014). Moreover, our Supreme Court

       has observed:

               our appellate rules exist to facilitate the orderly presentation and
               disposition of appeals . . . and [as] our Court of Appeals has
               noted we are mindful that our procedural rules are merely means
               for achieving the ultimate end of orderly and speedy justice. This
               policy has been incorporated into our Rules of Appellate
               Procedure. See App. R. 1 (providing in part: “The Court may,
               upon the motion of a party or the Court’s own motion, permit
               deviation from these Rules”). Thus, despite the “shall be
               forfeited” language of Rule 9(A), the Rules themselves provide a
               mechanism allowing this Court to resurrect an otherwise
               forfeited appeal.

       Id. at 971-72 (internal quotations and citations omitted).


[10]   Chenoweth is serving a forty-year sentence in the Department of Correction.

       While the Notice of Appeal in these proceedings was filed two days late, in

       general, Chenoweth has timely and diligently pursued the relief available to

       him. Under these facts and given our preference for deciding cases on their

       merits, we deny the State’s request to dismiss Chenoweth’s appeal.




       2
        On September 1, 2014, the Clerk’s Office was closed for observance of the Labor Day
       holiday.

       Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015   Page 9 of 18
                                        II. Post-Conviction Relief

[11]   Post-conviction proceedings are not “super appeals” through which convicted

       persons can raise issues they failed to raise at trial or on direct appeal. McCary v.

       State, 761 N.E.2d 389, 391 (Ind. 2002). Rather, post-conviction proceedings

       afford petitioners a limited opportunity to raise issues that were unavailable or

       unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443

       (Ind. 2002). A post-conviction petitioner bears the burden of establishing

       grounds for relief by a preponderance of the evidence. Henley v. State, 881

       N.E.2d 639, 643 (Ind. 2008). On appeal 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,

       the petitioner must show that the evidence as a whole leads unerringly and

       unmistakably to a conclusion opposite that reached by the post-conviction

       court. Id. at 643-44.


[12]   Where, as here, the post-conviction court makes findings of fact and

       conclusions of law in accordance with Indiana Post–Conviction Rule 1(6), we

       cannot affirm the judgment on any legal basis but rather must determine if the

       court’s findings are sufficient to support its judgment. Graham v. State, 941

       N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947 N.E.2d 962.

       Although we do not defer to the post-conviction court’s legal conclusions, we

       review the post-conviction court’s factual findings under a clearly erroneous

       standard. Id. Accordingly, we will not reweigh the evidence or judge the

       credibility of witnesses, and we will consider only the probative evidence and

       Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015   Page 10 of 18
       reasonable inferences flowing therefrom that support the post-conviction court’s

       decision. Id.


       A. Ineffective Assistance of Trial Counsel

[13]   First, Chenoweth contends that the post-conviction court clearly erred when it

       concluded that he waived his claim of ineffective assistance of trial counsel.

       Chenoweth raised a claim of ineffective assistance of trial counsel on direct

       appeal, and therefore, the trial court correctly determined that the issue is

       barred by the doctrine of res judicata.3 See Woods v. State, 701 N.E.2d 1208, 1220

       (Ind. 1998) (holding that if a defendant chooses to raise a claim of ineffective

       assistance of counsel on direct appeal, “the issue will be foreclosed from

       collateral review”); see also Brewington v. State, 7N.E.3d 946, 977 (Ind. 2014)

       (stating that “[r]aising ineffectiveness on direct appeal without the benefit of an

       additional post-conviction record is permissible, but the issue becomes res

       judicata and therefore unavailable for collateral review”). Because Chenoweth’s

       freestanding claims and ineffective assistance of trial counsel claims are waived

       and/or barred by res judicata, only claims framed as ineffective assistance of

       appellate counsel are available in these post-conviction proceedings.




       3
        Although a criminal defendant claiming ineffective assistance of trial counsel is at liberty to
       elect whether to present this claim on direct appeal or in post-conviction proceedings, it is
       well-settled that a post-conviction proceeding is generally the preferred forum for adjudicating
       claims of ineffective assistance of trial counsel because the presentation of such claims often
       requires the development of new evidence not present in the trial record. See Jewell v. State, 887
       N.E.2d 939 (Ind. 2008)

       Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015    Page 11 of 18
       B. Ineffective Assistance of Appellate Counsel

[14]   Chenoweth argues that his appellate counsel was ineffective for failing to argue

       that admission of the victim’s videotaped forensic interview violated his Sixth

       Amendment right to “meaningful confrontation.” Appellant’s Br. at 33. When

       we review claims of ineffective assistance of appellate counsel, we use the same

       standard applied to claims of ineffective assistance of trial counsel: the post-

       conviction petitioner must show that appellate counsel’s performance fell below

       an objective standard of reasonableness and that there is a reasonable

       probability that, but for the deficient performance of counsel, the result of the

       proceeding would have been different. Manzano v. State, 12 N.E.3d 321, 329

       (Ind. Ct. App. 2014) (citing Harris v. State, 861 N.E.2d 1182, 1186 (Ind. 2007)),

       trans. denied.


[15]   To show that counsel was ineffective for failing to raise an issue on appeal, the

       defendant must overcome the strongest presumption of adequate assistance,

       and judicial scrutiny is highly deferential. Id. To evaluate the performance

       prong when counsel failed to raise issues upon appeal, we apply the following

       test: (1) whether the unraised issues are significant and obvious from the face of

       the record, and (2) whether the unraised issues are clearly stronger than the

       raised issues. Id. If the analysis under this test demonstrates deficient

       performance, then we examine whether the issues which appellate counsel

       failed to raise would have been clearly more likely to result in reversal or an

       order for a new trial. Id. at 329-30. Ineffective assistance is very rarely found in

       cases where a defendant asserts that appellate counsel failed to raise an issue on

       Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015   Page 12 of 18
       direct appeal because the decision of what issues to raise is one of the most

       important strategic decisions to be made by appellate counsel. Id. at 330.


[16]   Chenoweth argues that his appellate counsel was ineffective for failing to argue

       that admission of the child’s videotaped statement violated the Confrontation

       Clause and denied him a fair trial. Chenoweth also argues that his appellate

       counsel was deficient for failing to argue that trial counsel was ineffective

       because she did not challenge the trial court’s finding that the victim was

       unavailable to testify at trial.

[17]   To address these issues, we initially observe that in this case, the only direct

       evidence of molestation admitted at trial was the victim’s videotaped forensic

       interview. Indiana Code section 35-37-4-6, known as the “protected person

       statute” or the “child hearsay statute,” lists certain conditions under which

       evidence that is otherwise inadmissible may be admitted in cases involving

       certain crimes, including child molesting, committed against “protected

       persons.” J.A. v. State, 904 N.E.2d 250, 255 (Ind. Ct. App. 2009).


[18]   Because the victim was four-years old when she was molested, Chenoweth’s

       victim qualified as a protected person, and therefore, the videotape of her

       forensic interview was admissible at trial if:

               after notice to the defendant of a hearing and of the defendant’s
               right to be present, all of the following conditions are met:
                        (1) The court finds, in a hearing:
                                (A) conducted outside the presence of the jury; and



       Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015   Page 13 of 18
                                (B) attended by the protected person in person or by
                                using closed circuit television testimony as
                                described in section 8(f) and 8(g) of this chapter;
               that the time, content, and circumstances of the statement or
               videotape provide sufficient indications of reliability.
                        (2) The protected person:
                                (A) testifies at the trial; or
                                (B) is found by the court to be unavailable as a
                                witness for one (1) of the following reasons:
                                         (i) From the testimony of a psychiatrist,
                                         physician, or psychologist, and other
                                         evidence, if any, the court finds that the
                                         protected person’s testifying in the physical
                                         presence of the defendant will cause the
                                         protected person to suffer serious emotional
                                         distress such that the protected person cannot
                                         reasonably communicate.
                                         (ii) The protected person cannot participate in
                                         the trial for medical reasons.
                                         (iii) The court has determined that the
                                         protected person is incapable of
                                         understanding the nature and obligation of an
                                         oath.
       I.C. § 35-37-4-6(d) & (e). The trial court found that Chenoweth’s victim was

       unable to testify under subsection (e)(2)(B), making her videotaped statement

       admissible only if she was available for cross-examination “at the hearing

       described in subsection (e)(1)” or “when the statement or videotape was made.”

       See I.C. § 35-37-4-6(f).


[19]   Chenoweth does not claim that the trial court failed to follow the procedures

       listed in section 35-37-4-6, and he had the opportunity to depose the victim and

       Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015   Page 14 of 18
       to cross-examine her at the Protected Persons hearing. Therefore, we conclude

       that his appellate counsel was not ineffective for failing to argue on direct

       appeal that his Sixth Amendment right of confrontation was violated. See Tyler

       v. State, 903 N.E.2d 463 (Ind. 2009) (discussing how the protected persons

       statute addresses and protects the defendant’s Sixth Amendment right of

       confrontation); Howard v. State, 853 N.E.2d 461, 470 (Ind. 2006) (stating that

       “prior testimony from a subsequently unavailable witness is admissible at a

       subsequent trial, provided the defendant had the opportunity to confront the

       witness when the testimony was originally given”).

[20]   Chenoweth also claims that his appellate counsel was deficient for failing to

       argue that his trial counsel was ineffective when she failed to challenge the trial

       court’s finding that the victim was unavailable to testify for medical reasons.4 In

       support of this argument, Chenoweth relies on Maryland v. Craig, 497 U.S. 836

       (1990) and Coy v. Iowa, 487 U.S. 1012 (1988). However, those cases address

       violations of a defendant’s Sixth Amendment right of confrontation where the

       witness was available at trial but shielded from the defendant’s view while

       testifying.

[21]   In Coy, the use of a screen to shield the child witnesses from the defendant was

       held to be unconstitutional in part because there were “no individualized

       findings that these particular witnesses needed special protection[.]” 487 U.S. at


       4
        As we noted above, Chenoweth’s trial counsel repeatedly objected to admission of the
       victim’s videotaped interview on the grounds that its admission violated the Confrontation
       Clause.

       Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015   Page 15 of 18
       1021. In Craig, the Court concluded that “a State’s interest in the physical and

       psychological well-being of child abuse victims may be sufficiently important to

       outweigh, at least in some cases, a defendant’s right to face his or her accusers

       in court.” 497 U.S. at 853. Therefore, the Craig court held that “if the State

       makes [a case-specific] showing of necessity, the state interest in protecting

       child witnesses from the trauma of testifying in a child abuse case is sufficiently

       important to justify the use of a special procedure that permits a child witness in

       such cases to testify at trial against a defendant in the absence of face-to-face

       confrontation with the defendant.” Id. at 855. The statute at issue in Craig

       allowed the child victim to testify via a one-way closed circuit television.5


[22]   These cases do not support Chenoweth’s argument that the trial court

       unconstitutionally expanded the terms of Indiana Code section 35-37-4-6(e)

       when it concluded that the victim was unavailable to testify for medical

       reasons. Therefore, we reject Chenoweth’s claim that appellate counsel’s

       performance was deficient because he failed to argue that trial counsel was

       ineffective due to her “demonstrated ignorance of the law,” i.e., her failure to

       utilize Coy and Craig to challenge the unavailability of the child victim.

       Appellant’s Br. at 35.

[23]   Moreover, in its findings of fact and conclusions of law, the post-conviction

       court noted:



       5
        Indiana has a similar statute authorizing use of closed circuit television for victims who
       qualify as “protected persons” under Indiana Code section 35-37-4-6. I.C. 35-37-4-8.

       Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015   Page 16 of 18
               During the Protected Person’s hearing, the State presented
               evidence that the victim, a minor child, was suffering from a
               medical condition. Specifically, Dr. Allen J. Stuckey, M.D., a
               board certified physician in both pediatrics and psychiatry,
               testified that he believed the victim would suffer a severe trauma
               if forced to testify at trial. Dr. Stuckey further testified that he
               believed that the victim was suffering from Post-Traumatic Stress
               Disorder caused by severe trauma and further psychological damage
               would likely result if she was required to testify at trial.

       Appellant’s App. p. 12 (emphasis added). The victim’s unavailability for

       medical reasons was established by Dr. Stuckey’s testimony.6 Therefore,

       appellate counsel’s performance was not deficient when he failed to argue that

       trial counsel was ineffective because she did not challenge the trial court’s

       determination that the victim was unavailable as that term is defined in Indiana

       Code section 35-37-4-6(e). Consequently, Chenoweth has not established that

       the outcome of his direct appeal would have been different had this argument

       been raised.


[24]   For all of these reasons, we conclude that Chenoweth has not established that

       appellate counsel’s performance fell below an objective standard of

       reasonableness because the unraised issues are not clearly stronger than the

       issues appellate counsel raised on direct appeal.




       6
        Contrary to Chenoweth’s claim, the trial court did not determine that the victim was
       unavailable for the sole reason that testifying would be difficult for her and cause her
       additional trauma.

       Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015   Page 17 of 18
                                                  Conclusion

[25]   We deny the State’s request to dismiss Chenoweth’s appeal of the denial of his

       petition for post-conviction relief for untimeliness. Chenoweth’s claim of

       ineffective assistance of trial counsel is barred by the doctrine of res judicata.

       Also, Chenoweth has not established that his appellate counsel was ineffective.

       Therefore, we affirm the trial court’s order denying Chenoweth’s petition for

       post-conviction relief.

[26]   Affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015   Page 18 of 18
