FOR PUBLICATION

APPELLANT PRO SE:                               ATTORNEYS FOR APPELLEE:

ANTHONY HOGAN                                   GREGORY F. ZOELLER
Michigan City, Indiana                          Attorney General of Indiana

                                                J.T. WHITEHEAD
                                                Deputy Attorney General
                                                Indianapolis, Indiana
                                                                              FILED
                                                                          Apr 19 2012, 9:16 am
                              IN THE
                                                                                  CLERK
                    COURT OF APPEALS OF INDIANA                                 of the supreme court,
                                                                                court of appeals and
                                                                                       tax court




ANTHONY HOGAN,                                  )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )      No. 20A03-1103-PC-158
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Respondent.                     )


                    APPEAL FROM THE ELKHART SUPERIOR COURT
                         The Honorable Stephen R. Bowers, Judge
                              Cause No. 20D02-0806-PC-4



                                      April 19, 2012


                               OPINION - FOR PUBLICATION


CRONE, Judge
                                        Case Summary

       Anthony Hogan was convicted of criminal deviate conduct as a class A felony,

attempted rape, battery resulting in serious bodily injury, and being a habitual offender. On

direct appeal, we vacated his battery conviction on double jeopardy grounds. Thereafter,

Hogan sought post-conviction relief. Hogan claimed that: (1) trial and appellate counsel

failed to argue that a statement that he made to a detective was inadmissible for any purpose

because it was involuntary; (2) trial counsel failed to advise him of his right to a jury trial on

the habitual offender charge and appellate counsel should have argued that the record was

devoid of evidence of a valid waiver of that right; and (3) trial counsel should have requested

an instruction on criminal deviate conduct as a class B felony and appellate counsel should

have raised the issue as fundamental error. The post-conviction court denied Hogan’s

petition.

       We affirm. Hogan did not present any evidence that his statement was made

involuntarily; thus, his first argument fails. Although it appears that a proper advisement of

rights and a personal waiver may not have been made on the record, trial counsel testified

that he informed Hogan of his right to a jury trial on the habitual offender enhancement, that

he had reviewed Hogan’s criminal record and believed that he was in fact a habitual offender,

and that Hogan agreed to admit to being a habitual offender in exchange for the State’s

agreement not to pursue certain aggravating factors. Hogan has not shown that he was

prejudiced, and therefore his second argument also fails. Finally, Hogan has not shown that

trial counsel’s decision to pursue an “all or nothing” strategy was unreasonable. Therefore,


                                                2
he has not shown ineffective assistance in regard to the lack of an instruction on the lesser-

included offense.

                              Facts and Procedural History

       The facts relevant to Hogan’s convictions were outlined in our opinion on direct

appeal:

               On a few occasions in the summer and early fall of 2004, Hogan used
       illegal drugs with Mike Oelslager and his girlfriend, Tracy Kling. On October
       5, 2004, Hogan came to the house Kling and Oelslager shared. Oelslager was
       not home at the time but Kling let Hogan in.

              After the two talked for a few minutes, Hogan asked Kling if she
       wanted to have sex with him. She declined. Hogan grabbed her from behind,
       pinned one of her arms, picked her up, and carried her to her son’s bedroom.
       He told her he was going to have sex with her. To dissuade Hogan, Kling told
       him she was on her period and he stated he would have anal sex with her
       instead. He held Kling down and attempted to remove her underwear. She
       struggled against him, and he threatened to kill her.

             Kling convinced him not to have sex with her in her son’s bedroom.
       Hogan pushed her out of the bedroom and onto the couch in the living room.
       He again attempted to remove her underwear. When Kling again stated she
       was on her period, Hogan told her to perform oral sex on him. He choked her
       and again threatened to kill her.

               Kling broke free and jumped over a banister[, which resulted in a
       sprained ankle and a back injury]. Before she could get out the front door,
       Hogan caught her and slammed the door shut. He punched her twice in the
       head, hitting her eye, nose, and forehead, and causing her to bleed. He again
       threatened to kill her. Hogan used a shirt to wipe the blood from her face. He
       then took her back to the couch and forced her to perform oral sex on him. He
       left shortly afterward, taking the shirt with him.

               Kling went to a neighbor’s house to call the police. After talking with
       police, Kling went to the hospital. She received stitches in her forehead, an
       injection for pain, and a prescription for pain medication.



                                              3
Hogan v. State, No. 20A03-0606-CR-282, 2007 WL 1217990 at *1 (Ind. Ct. App. Apr. 26,

2007) (footnotes omitted), trans. denied.

       Hogan was charged with class A felony criminal deviate conduct resulting in serious

bodily injury, attempted rape, battery resulting in serious bodily injury, and being a habitual

offender. On January 3, 2005, an initial hearing was held, and a public defender was

appointed to represent Hogan. Two days later, Detective D’Andre Biller (formerly Christian)

took Hogan’s statement without notifying counsel. Biller typed the statement, which Hogan

refused to sign afterward. The typed statement begins with an acknowledgment that he had

been advised of his rights, that he understood them, and that he was willing to talk to the

detective because he did not have “anything to hide.” Appellant’s App. at 37. The statement

says that Kling had consented to perform oral sex on Hogan in exchange for drugs and that

she had done so on multiple occasions. The conclusion of the statement reads, “Detective

Christian has asked me if I would be willing to give body standards [for DNA testing]. I

don’t have a problem with that but I don’t know why you need them because I already told

you she sucked my dick. I don’t want to sign a waiver for the body standards until I talk to

my attorney.” Id. at 39.

       Hogan’s case was tried to a jury. Kling testified to the facts outlined above. Hogan

testified in his own defense and claimed that Kling had voluntarily performed oral sex in

exchange for drugs. On cross examination, the State sought to use Hogan’s statement to

Detective Biller to impeach him. Defense counsel objected, arguing that the statement had

been taken after counsel had been appointed and without notice to counsel. The court ruled


                                              4
that the statement could be used for impeachment even if there had been a constitutional

violation.    The State attempted to impeach Hogan several times, but although he

acknowledged speaking with the detective, he either denied making the statements in the

typed statement or asserted that he was unable to remember what he had told the detective.

He asserted that she had initiated the questioning, that she typed the statement in her own

words, that he did not sign her typed statement, and that his testimony may have been more

detailed than his statement to the detective. At the conclusion of the first phase of trial, the

jury found Hogan guilty of criminal deviate conduct resulting in serious bodily injury,

attempted rape, and battery resulting in serious bodily injury.

        Thereafter, defense counsel informed the court that an agreement had been reached

with the State regarding the remaining issues:

        Your Honor, with regard to the habitual offender stage, the State has also filed
        notice of intention to present aggravators in what would be a third proceeding.
         The State then intended to then try the issue of aggravators and have the jury
        find aggravators beyond a reasonable doubt. The defendant is willing to
        stipulate to his habitual offender status, provided that the State, and the State
        had indicated that they will, withdraw their intention to have the jury find
        aggravating circumstances and so that any aggravators that would probably be
        the role of the jury will not be found.

Id. at 43.1 The State then questioned Hogan about his criminal record. The trial court entered

convictions of class A felony criminal deviate conduct, attempted rape, and battery, attached




        1
          Hogan committed his offenses while the presumptive sentencing scheme was in effect, but his trial
took place after our supreme court decided Smylie v. State, 823 N.E.2d 679 (2005), in which the court
determined that this state would comply with Blakely v. Washington, 542 U.S. 296 (2004), by trying
aggravating factors to a jury.

                                                    5
the habitual offender enhancement to the criminal deviate conduct conviction, and imposed

an aggregate sentence of sixty years.

       Counsel was appointed to pursue a direct appeal. Appellate counsel raised four

arguments: (1) there was an insufficient factual basis to support the habitual offender

enhancement; (2) Hogan’s conviction of criminal deviate conduct resulting in serious bodily

injury must be set aside because the verdict form provided to the jury referred only to

“criminal deviate conduct” and not “criminal deviate conduct resulting in serious bodily

injury”; (3) Hogan’s convictions for criminal deviate conduct and battery resulting in serious

bodily injury were based on the same evidence and therefore violated the double jeopardy

clause of the Indiana Constitution; and (4) there was insufficient evidence that Hogan took a

substantial step toward raping Kling. We agreed with Hogan on the double jeopardy issue,

but affirmed as to the other three issues; therefore, we vacated his battery conviction.

Appellate counsel filed a petition for transfer to the supreme court, which was denied.

       On April 27, 2008, Hogan filed a pro se petition for post-conviction relief. The State

Public Defender was appointed to represent Hogan, but withdrew after Hogan indicated that

he still wanted to pursue issues that the State Public Defender had found to be without merit.

Hogan amended his petition several times, but has not provided us with a complete copy of

his petition. As best as we can tell, Hogan’s claims were: (1) that trial and appellate counsel

failed to argue that his statement to the detective was inadmissible for any purpose because it

was involuntary; (2) that trial counsel failed to advise him of his right to a jury trial on the

habitual offender charge and that appellate counsel should have argued that the record was


                                               6
devoid of evidence of a valid waiver; and (3) that trial counsel should have requested an

instruction on criminal deviate conduct as a class B felony (a lesser-included offense of the

class A felony, which requires proof of serious bodily injury) and that appellate counsel

should have raised the issue as fundamental error.2

        Evidence was heard on June 30 and September 2, 2010. Concerning Hogan’s

statement to the detective, trial counsel testified that he thought that there was a possible


        2
           Hogan filed defective appendices on August 12 and August 30, 2011. On September 15, 2011, he
filed an appendix that complied with all the technical rules, but lacked portions of the record. According to our
docket, on November 4, 2011, the State filed a “Motion to Compel a Conforming Appendix,” requesting that
Hogan be ordered to file an appendix that included the missing documents, including his petition for post-
conviction relief. On November 14, 2011, we granted the State’s motion. Before receiving our order, Hogan
filed a supplemental appendix that included most of the missing documents; the clerk filed it on November 10,
2011, pursuant to the prison mailbox rule. For purposes of citation, “Appellant’s App.” refers to the appendix
filed on September 15, 2011, and “Supp. Appellant’s App.” refers to the supplemental appendix filed on
November 10, 2011.

          The supplemental appendix contains what appears to be a jumble of pages from various versions of his
post-conviction petition. Despite our order of November 14, 2011, Hogan never submitted a complete, final
copy of his petition; thus, determining the issues properly before us has presented a challenge. Hogan has
divided his brief into seven arguments. The first four arguments address three issues: his claim that his
statement to the detective was inadmissible even for impeachment, that he was not advised of his right to a jury
trial on the habitual offender charge, and that the jury should have been instructed on criminal deviate conduct
as both a class A and a class B felony. In the fifth argument, he explains why he feels that trial counsel is
responsible for these errors, and in the sixth argument, he explains why he feels that appellate counsel is
responsible for these errors. To the extent that the first four arguments are meant to be free-standing claims of
trial error, we agree with the State that those issues are foreclosed because they were available, but not raised
on direct appeal. Williams v. State, 808 N.E.2d 652, 659 (Ind. 2004) (“If an issue was known and available on
direct appeal, but not raised, it is procedurally defaulted as a basis for relief in subsequent proceedings.”). We
will consider those arguments only to the extent that they are relevant to his ineffective assistance of counsel
claims.

         Finally, Hogan’s seventh argument asserts that the post-conviction court failed to enter findings of fact
and conclusions of law on additional claims “identified in the petition as 8(d), 8(d)(1), and 9(e)(2).”
Appellant’s Br. at 39. Without his petition, we are unable to determine what these claims are and whether they
were properly before the post-conviction court. Hogan was specifically ordered to provide a copy of his
petition, and he has failed to do so; therefore, we conclude that these additional issues are waived. See Ind.
App. Rule 46(A)(8)(a) (“The argument must contain the contentions of the appellant on the issues presented,
supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and
the Appendix or parts of the Record on Appeal relied on….”); Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct.
App. 2005) (“A party waives an issue where the party fails to develop a cogent argument or provide adequate
citation to authority and portions of the record.”), trans. denied.

                                                        7
“violation of the professional rules of conduct or an evidentiary rule. There was never an

issue brought up … by you to me that you hadn’t understood that you had counsel and that

you hadn’t decided to waive it by talking.” PCR Tr. at 48-49. He stated that he felt that he

“made the best objection that … was available … at the time.” Id. at 61. The State asked

him, “Did you believe that the statement had been tak[en] involuntarily based on your review

of the police reports and talking with Mr. Hogan?” Id. at 92. Trial counsel responded

negatively.

       Regarding the habitual offender phase of Hogan’s trial, trial counsel testified:

       I cannot recall specifically the words I used to advise him. I can tell you that I
       recall telling him that we could proceed with the habitual phase and that the
       State is required to prove that sentencing enhancement to the jury or we could
       concede to it and in return we would receive some benefit and I’m, as I review
       this transcript just now, the benefit was the State’s agreement to withdraw their
       notice of aggravators to be tried to the jury.… I … reviewed Mr. Hogan’s
       criminal record with him directly and it was … my belief throughout the case
       that he was indeed was … a habitual offender and so I felt that we weren’t …
       really in a position to contest with any effectiveness the habitual offender
       stage, therefore any benefit, however small, would be a benefit in terms of the
       stipulation.

Id. at 97.

       Regarding the jury instructions, trial counsel testified that he did not tender an

instruction on criminal deviate conduct as a class B felony because he wanted to avoid a

compromise verdict. Trial counsel stated that his primary strategy was to attack the victim’s

credibility due to her drug use around the time of the offense.

       Appellate counsel testified that he had reviewed the trial transcript and raised what he

deemed to be the four strongest issues.


                                               8
       Hogan also called Detective Biller to testify. Detective Biller testified that she had not

been aware that Hogan had been appointed counsel. She stated that she read him a waiver of

rights and he said that he understood his rights, that he “didn’t have anything to hide,” and

that he was willing to talk. Id. at 110. She asserted that Hogan did not mention that he

already had counsel until she was finished taking his statement.

       On February 8, 2011, the post-conviction court issued an order denying post-

conviction relief. The court found that the statement taken by Detective Biller was an

“obvious 6th Amendment violation,” but there was “no evidence that the statement was less

than voluntary.” Appellant’s Br. at 44. The court further held that it was permissible to use

the statement for impeachment purposes notwithstanding the violation:

       The Supreme Court determined in Kansas v. Ventris that any statement in
       violation of a defendant’s Sixth Amendment right may be used for
       impeachment purposes. 129 S. Ct. 1841, 1847 (2009). The Petitioner argues
       that the case was published in 2009 and should not apply to his violation.
       However, the Court advised, “[o]ur precedents make clear the game of
       excluding tainted evidence for impeachment purposes is not worth the candle.
       The interests safe-guarded by such exclusion are ‘outweighed by the need to
       assure the integrity of the trial process.[’]” Id. at 1846, citing Stone v. Powell,
       428 U.S. 465, 488 (1976). The Petitioner’s statement was properly used for
       impeachment purposes only.

Id. at 47. The court also found that trial counsel’s decision not to offer an instruction on a

lesser included offense of class A felony criminal deviate conduct was an acceptable trial

strategy. The court did not make any findings or conclusions on any additional issues that

Hogan may have raised. Hogan now appeals.




                                               9
                                  Discussion and Decision

       The petitioner in a post-conviction proceeding bears the burden of proving the

grounds for relief by a preponderance of the evidence. Henley v. State, 881 N.E.2d 639, 643

(Ind. 2008). Hogan is appealing a negative judgment; therefore, he 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. “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.” State v. Damron, 915 N.E.2d 189, 191 (Ind. Ct.

App. 2009), trans. denied.

       Post-conviction proceedings do not afford a petitioner with a “super-appeal.”

Williams v. State, 808 N.E.2d 652, 659 (Ind. 2004). “If an issue was known and available on

direct appeal, but not raised, it is procedurally defaulted as a basis for relief in subsequent

proceedings.” Id.

       To prevail on a claim of ineffective assistance of counsel, Hogan must show both that

counsel’s performance fell below an objective standard of reasonableness and that the

deficient performance so prejudiced him. Coleman v. State, 694 N.E.2d 269, 272 (Ind.1998)

(citing Strickland v. Washington, 466 U.S. 668 (1984)). There is a strong presumption that

counsel rendered adequate assistance. Id. “Evidence of isolated poor strategy, inexperience

or bad tactics will not support a claim of ineffective assistance.” Id. at 273. “Counsel’s

performance is evaluated as a whole.” Lemond v. State, 878 N.E.2d 384, 391 (Ind. Ct. App.


                                              10
2007), trans. denied. To establish the prejudice prong of the test, the defendant must show

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Sims v. State, 771 N.E.2d 734, 741 (Ind. Ct. App.

2002), trans. denied. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. “Prejudice exists when the conviction or sentence resulted

from a breakdown in the adversarial process that rendered the result of the proceeding

fundamentally unfair or unreliable.” Coleman, 694 N.E.2d at 272. This standard applies to

both claims of ineffective assistance of trial and appellate counsel. Rhoiney v. State, 940

N.E.2d 841, 845 (Ind. Ct. App. 2010), trans. denied.

       Our supreme court has recognized three types of ineffective assistance of appellate

counsel: (1) denial of access to appeal; (2) failure to raise issues that should have been

raised; and (3) failure to present issues well. Wrinkles v. State, 749 N.E.2d 1179, 1203 (Ind.

2001), cert. denied.

       When a petitioner claims the denial of effective assistance of appellate counsel
       because counsel did not raise issues the petitioner argues should have been
       raised, reviewing courts should be particularly deferential to counsel’s
       strategic decision to exclude certain issues in favor of others, unless such a
       decision was unquestionably unreasonable. But this does not end our analysis.
       Even if we determine that counsel’s choice of issues was not reasonable, a
       petitioner must demonstrate a reasonable probability that the outcome of the
       direct appeal would have been different in order to prevail.

Taylor v. State, 840 N.E.2d 324, 338 (Ind. 2006) (citations and quotation marks omitted).

We must determine “(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



                                               11
issues.” Gray v. State, 841 N.E.2d 1210, 1214 (Ind. Ct. App. 2006) (quotation marks

omitted), trans. denied.

                                     I. Admissibility of Statement

        The State did not attempt to use Hogan’s statement as substantive evidence in its case-

in-chief, in effect conceding that his statement had been taken in violation of the Sixth

Amendment.3         The State argues that the statement was nevertheless admissible for

impeachment purposes pursuant to Kansas v. Ventris, 129 S. Ct. 1841 (2009). The State is

correct that a statement taken in violation of the Sixth Amendment right to counsel may be

admissible for impeachment, but to the extent that the State is arguing that Ventris permits it

to sidestep analysis of the voluntariness of the statement, we disagree.

        While Ventris was incarcerated pending trial on murder and robbery charges, officers

planted an informant in his cell. According to the informant, Ventris confessed to shooting a

man and taking his keys, wallet, $350, and a vehicle. At trial, Ventris testified and claimed




        3
           At the beginning of the post-conviction hearing, the State stipulated that Hogan had been appointed
counsel a few days before his statement was taken, that Hogan’s statement was taken without counsel present,
that the statement was not used in the State’s case-in-chief, and that the statement was used to impeach Hogan
when he elected to testify. PCR Tr. at 26-27.

         In Michigan v. Jackson, 475 U.S. 625, 635-36 (1986), the Supreme Court ruled that once a criminal
defendant invokes the Sixth Amendment right to counsel, a subsequent waiver of that right is presumed invalid
if secured by police-initiated conversation. The Court later characterized this as a prophylactic rule. Michigan
v. Harvey, 494 U.S. 344, 345 (1990). In Harvey, the Court held that violation of this prophylactic rule does
not prevent the State from using the statement to impeach the defendant’s false or inconsistent testimony. Id.
at 351.

        Subsequent to Hogan’s trial, Jackson was overruled by Montejo v. Louisiana, 129 S. Ct. 2079, 2091
(2009). However, statements that are in fact involuntary remain invalid apart from Jackson. See id. at 2089.


                                                      12
that a co-defendant was responsible for the crimes. The State then used the informant’s

testimony for impeachment.

       The Supreme Court stated that previous cases had not addressed the issue of when the

violation occurs – at the time of the interrogation or at the time the statement is admitted at

trial. The Court concluded that the Sixth Amendment right to counsel “is a right to be free of

uncounseled interrogation, and is infringed at the time of the interrogation.” Id. at 1846.

Therefore, the Court stated that Ventris’s case did not involve “the prevention of a

constitutional violation, but rather the scope of the remedy for a violation that has already

occurred.” Id. Citing several cases, the Court concluded that Ventris’s statement could still

be used for impeachment. Id. at 1847.

       The Court did not discuss whether Ventris’s statement was actually involuntary (and

not just a violation of the “prophylactic” rules). The State appears to interpret Ventris to

mean that inquiry into the voluntariness of a statement is unnecessary as long as the statement

is only used for impeachment. We find nothing in Ventris that permits the State to sidestep

the issue of voluntariness. On the contrary, Ventris mentioned the holding in New Jersey v.

Portash that a Fifth Amendment violation occurs “whenever a truly coerced confession is

introduced at trial, whether by way of impeachment or otherwise.” Id. at 1845 (citing New

Jersey v. Portash, 440 U.S. 450, 458-59 (1979)).

       Hogan is correct that in order for his statement to be admissible, it had to be voluntary.

When the voluntariness of a statement is challenged at the trial level, the State has the

burden of proving voluntariness beyond a reasonable doubt. Gentry v. State, 471 N.E.2d


                                              13
263, 267 (Ind. 1984). The defendant is entitled to a hearing outside the presence of a jury,

and the trial court must find voluntariness before admitting it into evidence. Morgan v. State,

675 N.E.2d 1067, 1071-72 (Ind. 1996). Trial counsel objected to the use of Hogan’s

statement. Portions of the ensuing bench conference were inaudible and therefore were not

transcribed by the court reporter, but it appears that trial counsel objected solely on the basis

that Hogan’s statement had been taken without notice to counsel. As discussed above, this

fact does not prevent his statement from being used for impeachment.

       Nevertheless, in post-conviction proceedings, it is the petitioner who bears the burden

of proof, and the record does not show that trial counsel had any basis for challenging the

voluntariness of the statement. Trial counsel testified that in reviewing the evidence and

speaking to Hogan, he had no reason to believe that the statement had been involuntary or

that Hogan had not understood that he was waiving his right to counsel. Trial counsel stated

that he believed that he had made the best objection available. Detective Biller testified that

she had advised Hogan of his right to counsel and that he indicated that he understood his

rights. She stated that Hogan had not mentioned that he already had counsel until the

conclusion of the statement. Although Hogan claimed otherwise in his trial testimony, this

testimony could rightly be considered self-serving. Appellate counsel testified that, in his

experience, it was not unusual for criminal defendants to make oral statements but refuse to

sign written statements because they did not believe that an oral statement carried the same

weight. Given the lack of evidence that the statement was involuntary, Hogan has not




                                               14
persuaded us that the post-conviction court erred by finding that neither trial nor appellate

counsel was ineffective for failing to address the issue.

                                    II. Habitual Offender

       The right to a jury trial applies to habitual offender proceedings. Gonzalez v. State,

757 N.E.2d 202, 204-05 (Ind. Ct. App. 2001), trans. denied. The defendant is presumed not

to waive this right unless he affirmatively acts to do so. Id. at 205. The defendant must

express his personal desire to waive a jury trial, and that desire must be apparent from the

record in the form of a written waiver or a colloquy in open court. Id. “It is fundamental

error to deny a defendant a jury trial unless there is evidence of the defendant’s knowing,

voluntary and intelligent waiver of the right.” Reynolds v. State, 703 N.E.2d 701, 704 (Ind.

Ct. App. 1999).

       The State notes, “It is possible that the trial court did not explicitly inform Hogan of

his right to have that evidence heard by a jury. Hogan’s record does not allow that

determination.” Appellee’s Br. at 16. Only select portions of the trial record were admitted

into evidence at the post-conviction hearing. It appears that we have the entire portion of the

transcript covering the habitual offender phase of the trial, but without a complete record, we

have no way of verifying that.

       We note that at the post-conviction hearing, Hogan requested that the court take

judicial notice of the trial record, and the court told Hogan that it could not do that. The post-

conviction court was mistaken. Effective January 1, 2010, Indiana Evidence Rule 201 was

amended to permit courts to take judicial notice of “records of a court of this state.” The


                                               15
hearing in this case commenced in June 2010. In Graham v. State, 947 N.E.2d 962, 964-65

(Ind. Ct. App. 2011), opinion on rehearing, we stated:

       First, if a pro se PCR petitioner comes to court bearing a record, including a
       transcript or other documents, that he or she wants to use in support of his or
       her petition, the PCR court should ensure that the record is introduced into
       evidence…. Second, if a PCR court does in fact, on its own initiative or at the
       request of a party, take judicial notice of other court records in ruling upon a
       PCR petition, those records should be made part of the PCR record.…
       Nothing in either of these statements requires a PCR court to go searching for
       records in support of either party’s position or to become an advocate or
       investigator for either party.

It appears that Hogan had at least portions of the trial record with him. It is unclear whether

he attempted to tender the entire record to the court.

       Giving Hogan the benefit of the doubt, we will review the portion of the transcript that

appears to cover the habitual offender proceedings. Trial counsel explained to the court that

an agreement has been reached – that Hogan would admit to being a habitual offender in

exchange for the State forgoing the aggravating circumstances that it had intended to prove to

the jury. The State then questioned Hogan to establish the factual basis for the habitual

offender enhancement. Nothing in the record shows that Hogan was advised of his right to a

jury trial during the habitual offender proceedings, and a personal waiver does not appear in

the record.

       Nevertheless, Hogan has not shown that he was prejudiced. Trial counsel testified

that he advised Hogan of his right to a jury trial on the habitual offender enhancement. He

also stated that he had reviewed Hogan’s criminal record and felt that he was not “in a

position to contest with any effectiveness the habitual offender stage.” PCR Tr. at 97.


                                              16
Therefore, he felt that any offer by the State, “however small,” would benefit Hogan. Id.

Hogan presented no evidence that he lacks the felony convictions necessary to establish his

habitual offender status, nor has he presented any evidence that he would have chosen to

proceed with a jury trial had the court explicitly informed him of that right. Therefore, we

conclude that Hogan has not established ineffective assistance of counsel with regard to

either trial or appellate counsel.

                                     III. Jury Instruction

       Finally, Hogan argues that the jury should have been instructed on criminal deviate

conduct as both a class A and class B felony. The distinguishing element between the two

offenses is serious bodily injury to the victim. Thus, the class B felony is inherently included

in the class A felony. See Wright v. State, 658 N.E.2d 563, 566 (Ind. 1995) (if the lesser

offense may be established by proof of the same material elements or less than all the

material elements of the greater offense, it is inherently included). Hogan therefore would

have been entitled to an instruction on the class B felony if there was a serious evidentiary

dispute concerning the serious bodily injury. See id. at 567 (“If there is a serious evidentiary

dispute about the element or elements distinguishing the greater from the lesser offense and

if, in view of this dispute, a jury could conclude that the lesser offense was committed but not

the greater, then it is reversible error for a trial court not to give an instruction, when

requested, on the inherently or factually included offense.”). Hogan argues that there was a

serious evidentiary dispute because the jury could have believed Kling’s testimony that she




                                              17
was forced to perform oral sex and believed his testimony that she injured herself because

she was high and behaving erratically.

       We lack a complete record with which to review this claim. See Webb v. State, No.

71S05-1106-CR-329, 2012 WL 982772 at *3 (Ind. Mar. 23, 2012) (court is to look at all

evidence presented to determine whether a serious evidentiary dispute exists). However,

even assuming that Hogan would have been entitled to the instruction, it is well established

that counsel may opt to pursue an “all or nothing” strategy. See, e.g., Autrey v. State, 700

N.E.2d 1140, 1141 (Ind. 1998). This strategy does not constitute ineffective assistance of

counsel unless it is “so deficient or unreasonable as to fall outside of the objective standard

of reasonableness.” Id. Here, trial counsel testified that his primary strategy was to attack

the victim’s credibility, and he felt that offering an instruction on the lesser-included offense

would lend some credence to her testimony. He also testified that he was concerned that the

jury would return a “compromise” verdict if given the option to convict Hogan of the class B

felony. PCR Tr. at 99. Hogan has not shown that this was an unreasonable strategy. Thus,

he has not shown that trial counsel was ineffective by not offering a lesser-included

instruction; nor has he shown that appellate counsel was ineffective by not raising the issue

as fundamental error on appeal.

                                    IV. Additional Claims

       Hogan asserts that he raised additional claims that the post-conviction court failed to

address. For the reasons discussed in footnote 2, supra, Hogan has waived appellate review

of any additional claims.


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                                          Conclusion

       Hogan is correct that his statement could not be used unless it was taken voluntarily.

However, he has not presented any evidence that his statement was involuntary; therefore, he

has not established ineffective assistance of trial or appellate counsel in regard to this issue.

Hogan is also correct that an advisement of his right to a jury trial on the habitual offender

and his personal waiver should have been made on the record. However, he has failed to

show that he was prejudiced by this and therefore has failed to establish ineffective assistance

of trial or appellate counsel. Hogan has failed to show that trial counsel’s decision not to

tender an instruction on a lesser-included offense was an unacceptable strategy and has

likewise failed to show that appellate counsel should have raised the issue as fundamental

error. Any additional claims that Hogan may have made are waived because, despite our

order to include his post-conviction petition in his appendix, he has failed to do so, and we

are unable to determine what those additional claims might be. Therefore, we affirm the

judgment of the post-conviction court.

       Affirmed.

MAY, J., and BROWN, J., concur.




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