MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Oct 29 2019, 10:56 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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
Meggan E. Smith                                          Ellen H. Meilaender
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brandon Hicks,                                           October 29, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-PC-1177
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         49G03-1509-PC-34015



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-1177 | October 29, 2019               Page 1 of 17
[1]   Brandon Hicks appeals the denial of his petition for post-conviction relief,

      arguing that the post-conviction court erroneously determined that he did not

      receive the ineffective assistance of appellate counsel. Finding no error, we

      affirm.


                                                     Facts
[2]   The underlying facts, as described by this Court in Hicks’s direct appeal, are as

      follows:


              During the evening of September 22, 2012, Hicks was at Bubba’s
              Bar & Grill (Bubba’s) in Indianapolis, Indiana, with friends. On
              that night, Josh Bolin (Bolin) was bartending at the bar.
              According to Hicks, he and Bolin had known each other for a
              few years through their mutual work as drug dealers. After
              exchanging pleasantries, Bolin invited Hicks to an after-party at
              his house and explained that there would be high-end marijuana
              there. In response, Hicks stated that he had his own marijuana.
              This led to Bolin “sucker-punch[ing]” Hicks in his “mouth and
              nose area.” Hicks then “pulled himself back up to the bar, and
              [Bolin] hit [him] again and knocked [him] down to the ground.”
              After the altercation, Hicks sat in the parking lot outside of
              Bubba’s and called the police. . . . There was no follow-up
              conversation with the police about this altercation, and no arrests
              were made.


              On November 12, 2012, at approximately 10:30PM, Hicks and
              his friends, Graham Girgenti (Girgenti) and Misty Girgenti
              (Misty), went to Krazy Street Bar & Grill (the Bar) in
              Indianapolis, Indiana, to watch Monday Night Football. There
              were about thirty to thirty-five people at the bar. Shortly after
              their arrival, Hicks saw Bolin enter the Bar with friends.
              According to Hicks, he became afraid when he saw Bolin come
              in, so he called his brother, Ronald Hicks (Ronald), to inform
      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1177 | October 29, 2019   Page 2 of 17
              him that Bolin was there. Ronald told Hicks that he was on his
              way to pick him up.


              Soon after Hicks finished talking to his brother, Bolin
              approached him. Hicks stood up and words were exchanged, but
              no one else could hear what they were saying because of the
              noise in the bar. Hicks testified that Bolin told him,
              “Motherfucker, I will kill you.” There was no yelling, but the
              two men were only one foot away from each other. Shortly
              thereafter, Bolin punched Hicks in the face. The punch caused
              Hicks to fall back slightly, and he reached for his .40 Smith and
              Wesson semi-automatic handgun that was concealed in an inner
              holster inside his pants. Hicks pointed the gun at Bolin and fired.
              Hicks testified that he and Bolin struggled for the gun after the
              first shot. Hicks was able to free himself by firing two additional
              shots at Bolin. In total, Hicks shot Bolin three times. . . .


              . . . Bolin died at the scene as a result of the gunshot wounds.


      Hicks v. State, No. 49A02-1308-CR-739, at *1-2 (Ind. Ct. App. July 15, 2014)

      (internal citations omitted). On November 15, 2012, the State charged Hicks

      with Class A felony murder and Class A misdemeanor possession of marijuana.


[3]   Hicks’s jury trial took place on July 23-24, 2013. Hicks’s primary theory of the

      case was that he acted in self-defense. The jury instruction on self-defense read

      as follows:


              It is an issue whether the Defendant acted in self-defense.


              A person may use reasonable force against another person to
              protect himself from what the defendant reasonably believes to be
              the imminent use of unlawful force. A person is justified in using

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1177 | October 29, 2019   Page 3 of 17
        deadly force, and does not have a duty to retreat, only if he
        reasonably believes that deadly force is necessary to prevent
        serious bodily injury to himself or a third person or to prevent the
        commission of a forcible felony. However, a person may not use
        force if:


        •        He is committing a crime that is directly and immediately
                 connected to the confrontation;
        •        He is escaping after the commission of a crime that is directly and
                 immediately connected to the confrontation;
        •        He provokes a fight with another person, with intent to cause
                 bodily injury to that other person; or
        •        He has willingly entered into a fight with another person or started
                 the fight, unless he withdraws from the fight and communicates to
                 the other person his intent to withdraw and the other person
                 nevertheless continues or threatens to continue the fight.

        The State has the burden of proving beyond a reasonable doubt
        that the Defendant did not act in self-defense.


PCR Tr. Ex. 6. And the jury was instructed on murder and its lesser-included

offenses as follows:


        The crime of Murder is defined by law as follows:


        A person who knowingly or intentionally kills another human
        being, commits Murder, a Felony.


        Included in the charge in this case is the crime of Voluntary
        Manslaughter, which is defined by law as follows:


        A person who knowingly or intentionally kills another human
        being while acting under sudden heat commits Voluntary


Court of Appeals of Indiana | Memorandum Decision 19A-PC-1177 | October 29, 2019   Page 4 of 17
        Manslaughter, a Class B Felony. The offense is a Class A Felony
        if it is committed by means of a deadly weapon.


        Sudden heat is a mitigating factor that reduces what otherwise
        would be murder to voluntary manslaughter. The State has the
        burden of proving beyond a reasonable doubt that the Defendant
        was not acting under sudden heat.


        Before you may convict the Defendant, the State must have
        proven each of the following beyond a reasonable doubt:


            1. The Defendant, Brandon Hicks


            2. Knowingly


            3. Killed


            4. Another human being, namely: Joshua Bolin


            5. And the Defendant was not acting under sudden heat


            6. And the Defendant killed by means of a deadly weapon,
               that is: a handgun


        If the State failed to prove each of these elements 1 through 4
        beyond a reasonable doubt, you must find the Defendant not
        guilty of Murder as charged in Count I.


        If the State did prove each of these elements 1 through 4 and
        element 6 beyond a reasonable doubt, but the State failed to
        prove beyond a reasonable doubt element 5, you may find the
        Defendant guilty of Voluntary Manslaughter, a Class A Felony, a
        lesser included offense of Count I.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-1177 | October 29, 2019   Page 5 of 17
        If the State did prove each of these elements 1 through 5 beyond
        a reasonable doubt, you may find the Defendant guilty of
        Murder, a Felony as charged in Count I.


        If you find the Defendant did not commit Murder or Voluntary
        Manslaughter, you may consider whether or not the Defendant
        committed Reckless Homicide, a Class C Felony.


        The Crime of Reckless Homicide is defined by law as follows:


        A person who recklessly kills another human being commits
        Reckless Homicide, a Class C Felony.


        Before you may convict the Defendant, the State must have
        proved each of the following elements:


            1. The Defendant, Brandon Hicks


            2. Recklessly


            3. Killed


            4. Another human being, namely: Joshua Bolin


        If the State failed to prove each of the following [sic] elements
        beyond a reasonable doubt, you must find the Defendant not
        guilty of Reckless Homicide a Class C Felony as included in
        Count I.


Id. Hicks’s trial counsel did not object to these jury instructions.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-1177 | October 29, 2019   Page 6 of 17
[4]   The jury found Hicks not guilty of murder but guilty of voluntary manslaughter

      and possession of marijuana, and on August 7, 2013, the trial court sentenced

      Hicks to an aggregate term of forty years imprisonment. Hicks filed a direct

      appeal. Appellate counsel raised the following arguments: (1) the trial court

      erred in sentencing Hicks; and (2) trial counsel was ineffective for multiple

      reasons. Appellate counsel did not raise the jury instructions, either as a stand-

      alone issue or in the context of ineffective assistance of trial counsel.


[5]   This Court affirmed. Relevant to this appeal is appellate counsel’s contention

      that trial counsel was ineffective for failing to argue the elements of self-defense

      in a diligent manner. We disagreed, focusing on the evidence in the record

      related to self-defense:


              The State had the burden of rebutting at least one element of self-
              defense. A review of the State’s evidence shows that Bolin was
              unarmed and attacked Hicks by punching him with his fist. The
              State’s primary argument was that Hicks’ use of a gun to defend
              himself against Bolin, who was unarmed, was excessive and thus
              unreasonable. The self-defense statute requires that the force
              used to protect oneself is reasonable and “the [jury] is not
              precluded from finding that a defendant used unreasonable force
              simply because the victim was the initial aggressor.” Birdsong v.
              State, 685 N.E.2d 42, 45 (Ind. 1997). Hence, the State provided
              evidence to rebut at least one element of Hicks’ self-defense claim
              and the jury could reasonably decide that Hicks did not act in
              self-defense. Because the State did not fail to rebut at least one
              element of self-defense at trial, trial counsel was not ineffective by
              not addressing it as thoroughly as Hicks wanted her to.


      Hicks, 49A02-1308-CR-739, at *6.


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1177 | October 29, 2019   Page 7 of 17
[6]   On September 23, 2015, Hicks filed a pro se petition for post-conviction relief,

      which was later amended by counsel. Hicks argued that he received the

      ineffective assistance of appellate counsel based, in relevant part, on the

      following arguments: (1) appellate counsel should have argued that the jury

      instructions were fundamentally erroneous; and (2) appellate counsel should

      not have raised the ineffective assistance of trial counsel as part of a direct

      appeal. The post-conviction court held an evidentiary hearing on Hicks’s

      petition on February 20, 2018, and denied Hicks’s petition on May 1, 2019. 1

      Hicks now appeals.


                                     Discussion and Decision
                                       I. Standard of Review
[7]   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-



      1
       The record does not reveal the reason for the lengthy delay between the evidentiary hearing and the post-
      conviction court’s ruling.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1177 | October 29, 2019                Page 8 of 17
              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).


[8]   Hicks’s primary argument on appeal is that the post-conviction court

      erroneously determined that he did not receive the ineffective assistance of

      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.




      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1177 | October 29, 2019   Page 9 of 17
                          II. Assistance of Appellate Counsel
                           A. Failure to Raise Jury Instructions
[9]    Hicks first argues that appellate counsel was ineffective for failing to argue, in

       the direct appeal, that the jury instructions were fundamentally erroneous. In

       considering whether appellate counsel performed deficiently by failing to raise

       an issue, we determine (1) whether the unraised issue is significant and obvious

       from the face of the record, and (2) whether the unraised issue is clearly

       stronger than the issues that were raised on appeal. Bieghler v. State, 690 N.E.2d

       188, 194 (Ind. 1997). In evaluating prejudice, we examine whether the unraised

       issue would have been “‘clearly more likely to result in reversal or an order for a

       new trial.’” Id. (quoting Gray v. Greer, 800 F.2d 644, 647 (7th Cir. 1986)).


[10]   Hicks’s trial counsel did not object to the jury instructions; consequently,

       appellate counsel would have had to have shown fundamental error to warrant

       relief on this issue. The fundamental error exception is extremely narrow and

       applies only to an egregious error that constitutes a blanket denial of due

       process, rendering a fair trial impossible. E.g., Ryan v. State, 9 N.E.3d 663, 668

       (Ind. 2014). To rise to the level of fundamental error, the matter must be one

       that the trial court had a duty to correct sua sponte. Id.


[11]   The purpose of a jury instruction is to inform the jury of the law applicable to

       the facts without misleading the jury and to enable it to comprehend the case

       clearly. Buckner v. State, 857 N.E.2d 1011, 1015 (Ind. Ct. App. 2006).



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1177 | October 29, 2019   Page 10 of 17
       Therefore, the jury instructions are to be considered as a whole, and reversal is

       not appropriate unless the instructions as a whole mislead the jury. Id.


[12]   Hicks directs our attention to the jury instruction describing the elements of

       murder and its lesser-included offenses. He argues that the instruction “omitted

       an essential element—that Hicks ‘was not acting in defense of a person’—that

       the jury must find before finding Hicks guilty.” Appellant’s Br. p. 21. With this

       omission, Hicks insists that the roadmap omitted one path to acquittal of

       murder and its lesser-included offenses.


[13]   Self-defense is not an element of the crime of murder or its lesser-included

       offenses. Ind. Code §§ 35-42-1-1 (murder), -3 (voluntary manslaughter), -5

       (reckless homicide). Instead, it is a defense of justification, “admitting that the

       facts of the crime occurred but contending that the acts were justified. As such,

       these [justification] defenses negate no element of the crime.” Moon v. State,

       823 N.E.2d 710, 716 (Ind. Ct. App. 2005) (omitting internal citations).


[14]   Although a jury must be informed of the State’s burden to disprove a claim of

       self-defense—as it was in this case—Hicks cites to no authority holding that this

       burden must be included in the list of enumerated elements that the State is

       required to prove to convict, rather than by including that requirement in a

       different instruction. We can only find that because self-defense is not an

       element of the charged crimes, there is no requirement that it be included in the

       instruction describing the elements of those charges.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1177 | October 29, 2019   Page 11 of 17
[15]   Hicks observes that the introduction to pattern jury instruction 10 provides that

       when the State has the burden of persuasion related to a defense, such as with

       self-defense, the following instruction should be incorporated into the

       instruction on the elements of the crime: “If the State failed to prove each of

       these elements [including the absence of self-defense] beyond a reasonable

       doubt, you must find the Defendant not guilty of [charged offense].” Ind.

       Pattern Crim. Jury Inst. 10 INTRO. It is true that in Indiana, the preferred

       practice is to use the pattern jury instructions. E.g., Santiago v. State, 985 N.E.2d

       760, 763 (Ind. Ct. App. 2013). But Hicks points to no authority standing for the

       proposition that use of the pattern instructions is required. Indeed, pattern jury

       instructions are not always upheld as correct statements of law. E.g., Harrison v.

       State, 32 N.E.3d 240, 252 n.5 (Ind. Ct. App. 2015); Albores v. State, 987 N.E.2d

       98, 102 (Ind. Ct. App. 2013). Therefore, the mere fact that the jury instruction

       at issue here did not wholly mimic the pattern jury instruction is insufficient to

       show fundamental error.


[16]   As noted above, jury instructions are not viewed in isolation; they are viewed as

       a whole and in reference to each other. McDowell v. State, 102 N.E.3d 924, 935-

       37 (Ind. Ct. App. 2018) (holding that although voluntary manslaughter

       instruction was worded incorrectly, instructions as a whole properly instructed

       the jury on the law regarding voluntary manslaughter), trans. denied. Moreover,

       the jury was specifically instructed to consider the instructions as a whole and

       construe every instruction “in connection with, and in light of, every other

       instruction given.” PCR Tr. Ex. 6. Defense counsel told the jury that the


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1177 | October 29, 2019   Page 12 of 17
       instructions on murder and self-defense “fit together” and should be considered

       in tandem. Trial Tr. Vol. II p. 414.


[17]   Hicks finds no fault with the jury instruction on self-defense. Indeed, the

       instruction informed the jury that people may use force to protect themselves

       when certain circumstances exist and that the State had to prove beyond a

       reasonable doubt that Hicks had not acted in self-defense in this case. PCR Tr.

       Ex. 6. When the instructions are viewed as a whole, therefore, we can only find

       that reasonable jurors would have understood that if Hicks had a valid claim of

       self-defense that was not disproved by the State, he was not guilty of a criminal

       offense. Therefore, even if it may have been better to have included the State’s

       burden regarding self-defense in the instruction on the elements of the charged

       offenses, any deficiency was cured by the self-defense instruction.


[18]   Hicks first responds that during closing arguments, both trial counsel and the

       prosecutor told the jury that self-defense was a defense to murder, but did not

       further explain that it is also a defense to the lesser-included offenses. Second,

       he notes that, while the self-defense instruction explains that the State must

       prove beyond a reasonable doubt that Hicks did not act in self-defense, the

       instructions did not tell the jury what to do (i.e., acquit) if it found that the State

       failed to meet that burden.


[19]   We do not find these arguments persuasive. We decline to operate from the

       premise that Indiana jurors are unintelligent. During Hicks’s trial, the

       attorneys’ arguments were focused on murder because that was the lead charge;


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1177 | October 29, 2019   Page 13 of 17
       but neither the arguments nor the jury instructions suggested that Hicks’s claim

       of self-defense did not apply to the lesser-included offenses. Indeed, the self-

       defense instruction stated that a person is justified in using “deadly force,” not

       that he is not guilty of “murder,” when it is necessary to protect him self from

       serious bodily injury. PCR Tr. Ex. 6. Voluntary manslaughter and reckless

       homicide are both examples of the use of deadly force.


[20]   Moreover, we neither expect nor wish for our jurors to ignore the knowledge

       with which they enter the courtroom. Instead, we instruct them to use that

       knowledge. E.g., Buckner, 857 N.E.2d at 1016. Reasonable jurors would know

       that the right of self-defense is not limited to murder and would understand that

       self-defense applies equally to other forms of homicide or non-homicide

       charges. Reasonable jurors would also know that if the State failed to prove

       beyond a reasonable doubt that Hicks did not act in self-defense, they would

       have to acquit Hicks. Therefore, there is no basis for concluding that the jury

       might have believed that (1) self-defense was not a defense to the lesser-included

       charges, or (2) it could convict even if the State failed to meet its burden with

       respect to the self-defense claim. Under these circumstances, appellate counsel

       could not have established fundamental error based on the jury instructions.


[21]   In sum, we find that Hicks’s argument regarding jury instructions was neither

       significant and obvious from the face of the record nor clearly stronger than the




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1177 | October 29, 2019   Page 14 of 17
       issues raised by appellate counsel in the direct appeal. Moreover, the issue

       would not likely have resulted in a reversal or a new trial.2


                B. Decision to Argue Assistance of Trial Counsel
[22]   Hicks also argues that appellate counsel was ineffective because she raised the

       issue of the effectiveness of trial counsel in Hicks’s direct appeal. The State

       concedes that “as a general rule, the better practice is to wait to raise [ineffective

       assistance of counsel] claims on post-conviction.” Appellee’s Br. p. 27. We

       agree, given that if a defendant raises a claim of ineffective assistance of counsel

       on direct appeal, he is procedurally barred from raising the claim again on post-

       conviction. E.g., Woods v. State, 701 N.E.2d 1208, 1220 (Ind. 1998).


[23]   For argument’s sake, we will assume that it was deficient performance in this

       case for appellate counsel to have raised ineffective assistance of trial counsel

       claims in Hicks’s direct appeal. That does not end our inquiry, however, as

       Hicks must still prove that he was prejudiced by that decision. In other words,

       he must show that he has a meritorious ineffective assistance of trial counsel

       claim that he could have raised on post-conviction but for the procedural bar

       created by the direct appeal. Ben-Yisrayl, 738 N.E.2d at 261-62.




       2
         Hicks’s appellate counsel did not testify at the post-conviction hearing. The post-conviction court inferred
       from counsel’s absence that, had she been present to testify, she would not have corroborated the claims of
       ineffectiveness. Appealed Order p. 16. Hicks argues that this inference is inappropriate because he tried on
       multiple occasions to secure her presence at the hearing, but she did not respond to his mailings. The post-
       conviction court also noted that the inference was not dispositive, and its ruling would have been the same
       without it. We, likewise, do not rely on any such inference in reaching our result, and decline to consider
       Hicks’s argument that the post-conviction court erred on this basis.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1177 | October 29, 2019                  Page 15 of 17
[24]   The only purported meritorious ineffective assistance of trial counsel claim

       advanced by Hicks is trial counsel’s failure to object to the allegedly incomplete

       elements instruction and/or tender an instruction that included the “element”

       that Hicks maintains was omitted from the elements instruction. For the

       reasons discussed above, trial counsel was not deficient for failing to make this

       objection or tender this instruction, and Hicks was not prejudiced by the lack of

       an objection. Had trial counsel made such an objection, it would not have been

       sustained because the jury instructions as a whole were sufficient. E.g., Curtis v.

       State, 905 N.E.2d 410, 418 (Ind. Ct. App. 2009) (holding that to demonstrate

       deficient performance for failing to object, a petitioner must show that the trial

       court would have had no choice but to sustain the objection, had it been made).

       Therefore, even if the instruction issue had been preserved for post-conviction

       proceedings, there is no reasonable probability that raising the issue would have

       resulted in a different outcome.


[25]   Finally, we note that this Court found on direct appeal that the State had, in

       fact, disproved the claim of self-defense beyond a reasonable doubt because

       Hicks used objectively unreasonable force under the circumstances. Hicks, No.

       49A02-1308-CR-739, at *6. He shot an unarmed man multiple times in

       response to a single punch thrown that did not inflict any visible injury, much

       less any serious injury. Id. at *3 (noting that Hicks’s “use of a deadly weapon in

       response to a punch was excessive, and there were many options that were

       available to him to avoid an altercation”). Because the evidence proved that




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1177 | October 29, 2019   Page 16 of 17
       Hicks’s conduct was not a justified act of self-defense, he cannot have been

       prejudiced by any inadequacy in the jury instructions regarding self-defense.


[26]   In sum, while it may have been inadvisable for appellate counsel to have raised

       ineffective assistance of trial counsel in Hicks’s direct appeal, he has not and

       cannot show prejudice as a result of that decision. Therefore, the post-

       conviction court did not err by denying his claim on this basis.


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


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1177 | October 29, 2019   Page 17 of 17
