MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               Mar 19 2019, 10:26 am

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


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Nathan Berkman                                          Curtis T. Hill, Jr.
Michigan City, Indiana                                  Attorney General of Indiana
                                                        Lyubov Gore
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Nathan Berkman,                                         March 19, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        45A05-1709-PC-2120
        v.                                              Appeal from the Lake Superior
                                                        Court
State of Indiana,                                       The Honorable Diane R. Boswell,
Appellee-Plaintiff.                                     Judge
                                                        The Honorable Natalie Bokota,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        45G03-1409-PC-16



Riley, Judge




Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019             Page 1 of 14
                               STATEMENT OF THE CASE
[1]   Appellant-Petitioner, Nathan Berkman (Berkman), appeals the denial of his

      post-conviction relief.


[2]   We affirm.


                                                   ISSUE
[3]   Berkman presents seven issues on appeal, which we consolidate and restate as

      the following single issue: Whether Berkman received ineffective assistance

      from Trial Counsel.


                      FACTS AND PROCEDURAL HISTORY
[4]   The relevant facts, as set forth in this court’s opinion issued in Berkman’s direct

      appeal, are as follows


              In August of 2008, Berkman owed approximately $2000 to Olen
              Hawkins, from whom he had frequently purchased cocaine. On
              August 30, 2008, Berkman telephoned Hawkins, told him that he
              had the money he owed him, and arranged a meeting in a
              supermarket parking lot. Between 4:00 and 5:00 p.m., Berkman
              told Arlene Timmerman, his girlfriend and with whom he lived,
              that was going to leave to obtain money and cocaine and that he
              had to go by himself. Berkman left at approximately 6:00 p.m.,
              in Timmerman’s car.


              Berkman met Hawkins in the supermarket parking lot, parked
              next to him, and entered Hawkins’s vehicle. When Hawkins
              asked Berkman if he had the money that he owed him, Berkman
              slit Hawkins’s throat “from ear to ear and he robbed him for a
              couple ounces of dope and a bunch of money.” [] Berkman

      Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019   Page 2 of 14
        kicked Hawkins’s dead body into the passenger seat and drove
        Hawkins’s car back to Timmerman’s house, arriving at
        approximately 9:30 to 10:00 p.m.


        When Berkman arrived back at Timmerman’s, he yelled for
        Timmerman. Timmerman went with Berkman to the garage,
        where she saw Hawkins’s dead body in the passenger seat of his
        car. Berkman told Timmerman that he had cut Hawkins’s throat
        and taken an ounce of cocaine from him. Berkman,
        Timmerman, and Tanya Sullivan, who was visiting, then smoked
        crack cocaine in the basement until approximately 1:30 or 2:00
        a.m.


        Late in the evening of August 31, 2008, or early in the morning
        of September 1, Berkman retrieved a knife from the kitchen, held
        it to Timmerman’s neck, and said, “Get your f* * * * * * a* *
        downstairs now.” [] Timmerman managed to elude Berkman,
        leave, and go to the home of friend Meghan Johnston. At
        approximately 7:00 or 8:00 a.m. on September 1, 2008,
        Timmerman called home, Berkman apologized, and Timmerman
        returned home. Berkman told her later that day that he had
        formulated a plan to dispose of Hawkins’s body, which was still
        in Hawkins’s car in the garage. Early in the morning of
        September 2, 2008, Berkman drove Hawkins’s car to a field with
        Timmerman following in her car. While Timmerman waited,
        Berkman doused Hawkins’s car with gasoline and set it aflame.
        Hawkins’s burned-out car and remains were discovered on
        November 19, 2008.




Berkman v. State, 976 N.E.2d 68, 71 (Ind. Ct. App. 2012) trans. denied, cert.

denied, 571 U.S. 863 (2013).



Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019   Page 3 of 14
[5]   On June 9, 2009, the State filed an Information, charging Berkman with murder

      and felony murder in the perpetration of robbery, both felonies. On July 27,

      2011, a jury acquitted Berkman of murder but failed to reach a verdict on the

      felony murder Count. A second jury trial began on August 30, 2011. After a

      seven-day jury trial, Berkman was found guilty on the felony murder charge.

      On October 3, 2011, the trial court conducted a sentencing hearing and

      sentenced Berkman to a term of sixty years in the Department of Correction.

      Berkman appealed.


[6]   On direct appeal, Berkman raised four issues: (1) whether the trial court abused

      its discretion in denying his motion to dismiss as the instant charge was barred

      by prohibitions against double jeopardy; (2) whether the trial court abused its

      discretion in denying his motion for a mistrial because the trial court admitted

      certain testimony from a previous trial; (3) whether the trial court abused its

      discretion in admitting certain deposition testimony; and (4) whether his sixty-

      year sentence was inappropriate. On September 4, 2012, we affirmed the trial

      court. On March 7, 2013, the Indiana Supreme Court denied transfer. On

      October 7, 2013, the United States Supreme Court denied Berkman’s petition

      for certiorari.


[7]   On September 23, 2014, Berkman filed a pro se petition for post-conviction

      relief. On November 24, 2014, the State filed an answer. Following a hearing,

      on December 3, 2015, Berkman was permitted to file an amended petition,

      which he filed on June 20, 2016. The State also filed an amended response

      brief, and a hearing was conducted on August 12, 2016. The parties

      Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019   Page 4 of 14
       subsequently filed their proposed findings of fact and conclusions of law. On

       August 25, 2017, the trial court issued findings of facts and conclusions thereon

       denying Berkman’s petition for post-conviction relief.


[8]    On September 7, 2017, Berkman filed a notice of appeal. After three extensions

       of time, Berkman submitted a defective brief on April 18, 2018. On May 21,

       2018, we dismissed Berkman’s appeal with prejudice. Berkman sought

       rehearing, which we denied on June 29, 2018. On July 12, 2018, Berkman filed

       a verified motion to file a belated brief and also filed a defect-free appellant’s

       brief and appendix. On August 17, 2018, we granted Berkman’s verified

       motion to file a belated brief, reinstated his appeal, and ordered Berkman to file

       his brief within thirty days. On the same day, Berkman filed his appellate brief,

       and the State subsequently filed a response.


[9]    Berkman now appeals. Additional facts will be provided as necessary.


                                 DISCUSSION AND DECISION
                                                I. Standard of Review

[10]   Berkman argues that he received ineffective assistance of trial counsel. 1 Under

       the rules of post-conviction relief, the petitioner must establish the grounds for

       relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5):

       Strowmatt v. State, 779 N.E.2d 971, 974-75 (Ind. Ct. App. 2002). To succeed on




       1
         Although Berkman also argues that he received ineffective assistance of Appellate Counsel, he fails to
       develop that argument, therefore, it is waived for appellate review. See Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019              Page 5 of 14
       appeal from the denial of relief, the post-conviction petitioner must show that

       the evidence is without conflict and leads unerringly and unmistakably to a

       conclusion opposite that reached by the post-conviction court. Id. at 975. The

       purpose of post-conviction relief is not to provide a substitute for direct appeal,

       but to provide a means for raising issues not known or available to the

       defendant at the time of the original appeal. Id. If an issue was available on

       direct appeal but not litigated, it is waived. Id.


[11]   Further, the post-conviction court in this case entered findings of fact and

       conclusions thereon in accordance with Indiana Post-Conviction Rule 1, § 6.

       “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.” Little v. State, 819 N.E.2d 496, 500 (Ind. Ct.

       App. 2004) (quoting Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000), reh’g

       denied, trans. denied. In this review, findings of fact are accepted unless clearly

       erroneous, but no deference is accorded conclusions of law. Id. Additionally,

       we remind Berkman that he is not entitled to a perfect trial, but is entitled to a

       fair trial, free of errors so egregious that they, in all probability, caused the

       conviction. Averhart v. State, 614 N.E.2d 924, 929 (Ind. 1993).


[12]   Initially, we note that Berkman proceeded pro se before the post-conviction

       court and again in this appeal. We have held on numerous occasions that

       litigants who choose to proceed pro se will be held to the same rules of

       procedure as trained legal counsel and must be prepared to accept the

       consequences of their actions. Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019   Page 6 of 14
       App. 2004). Furthermore, while we prefer to decide cases on the merits, we

       will deem alleged errors waived where an appellant’s noncompliance with the

       rules of appellate procedure is so substantial that it impedes our consideration

       of the alleged errors. Id. “The purpose of the appellate rules, especially Indiana

       Appellate Rule 46, is to aid and expedite review, as well as to relieve the

       appellate court of the burden of searching the record and briefing the case.” Id.


[13]   Pursuant to Indiana Appellate Rule 46(A)(6), the statement of facts should

       contain a narrative description of the relevant facts in light of the applicable

       standard of review. In addition, the argument section of an appellant’s brief

       should “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 . . .” Ind. App. Rule 46(A)(8)(a). We will not consider an appellant’s

       arguments on appeal when the appellant has failed to present cogent argument

       supported by authority and references to the record as required by the rules.

       Shepherd, 819 N.E.2d at 463. If we were to address such arguments, we would

       be forced to abdicate our role as an impartial tribunal and would instead

       become an advocate for one of the parties. Id. This we cannot do. Id.


[14]   Although Berkman cites numerous cases within the argument section of his

       brief, he fails to use them in developing contentions in support of his position.

       Rather, they are merely general statements of rules of law without any

       application to the claims at hand. While we prefer to decide issues on the

       merits, where the appellant’s noncompliance with appellate rules is so

       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019   Page 7 of 14
       substantial as to impede our consideration of the issues, we may deem the

       alleged errors waived. Shepherd, 819 N.E.2d at 463. Although we would be

       justified to waive a majority of Berkman’s issues on appeal, we will nevertheless

       attempt to address his arguments in so far as we can decipher them. However,

       we refuse to comb through the record or transcript to find evidence to support

       his allegations as we will not become an advocate for a party, or address

       arguments that are inappropriate or too poorly developed or expressed to be

       understood. Id.


                                     II. Ineffective Assistance of Counsel

[15]   Berkman contends that he was denied the effective assistance of Trial Counsel.

       The standard by which we review claims of ineffective assistance of counsel is

       well established. In order to prevail on a claim of this nature, a defendant must

       satisfy a two-pronged test, showing that: (1) his counsel’s performance fell

       below an objective standard of reasonableness based on prevailing professional

       norms; and (2) there is a reasonable probability that, but for counsel’s errors the

       result of the proceeding would have been different. Jervis v. State, 28 N.E.3d

       361, 365 (Ind. Ct. App. 2015) (citing Strickland v. Washington, 466 U.S. 668,

       690, 694, (1984) reh’g denied), trans. denied. The two prongs of the Strickland test

       are separate and distinct inquiries. Id. Thus, “if it is easier to dispose of an

       ineffectiveness claim on the ground of lack of sufficient prejudice . . . that

       course should be followed.” Timberlake v. State, 753 N.E.2d 591, 603 (Ind.

       2001) (quoting Strickland, 466 U.S. at 697) reh’g denied; cert. denied, 537 U.S. 839

       (2002).

       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019   Page 8 of 14
                                            A. Evidence of Acquittal

[16]   Berkman claims that his Trial Counsel was ineffective for failing to advise the

       jury that he had been acquitted of murder in the first trial. At his post-

       conviction hearing, Berkman questioned Trial Counsel why he did not

       introduce evidence of his prior acquittal pursuant to Coleman v. State, 946

       N.E.2d 1160, 1163 (Ind. Ct. App. 2011). Trial counsel testified that he did not

       believe that Coleman provided him with a legal basis to attempt to bring to the

       attention of the jury that Berkman had been previously acquitted of murder.


[17]   In Coleman, Coleman shot two of his friends during a confrontation. Id. The

       State charged Coleman with murder, a felony, for the death of one of the

       victims, and attempted murder, a Class A felony, for shooting the other friend.

       Id. During a jury trial, Coleman admitted to the shootings, but contended that

       his actions against both victims were justified due to self-defense. Id. The jury

       returned a verdict of not guilty on the murder charge, but was unable to reach a

       verdict on the attempted murder charge. Id. The trial court declared a mistrial

       on the attempted murder charge and scheduled another trial. Id. Prior to retrial

       Coleman filed a motion to dismiss contending a subsequent trial on attempted

       murder was barred by collateral estoppel and would therefore violate the

       Double Jeopardy Clauses of both the United States and Indiana Constitutions.

       Id. After a hearing, the trial court denied the motion. Id. A retrial ensued, at

       the conclusion of which the jury found Coleman guilty as charged. Id.

       Thereafter the trial court sentenced him to a term of forty-five years. Id.

       Coleman appealed raising several issues for review. Id. In a divided opinion

       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019   Page 9 of 14
       we reversed Coleman’s conviction on grounds of collateral estoppel. Id. Our

       supreme court granted transfer, reaching a different conclusion on the issue. Id.

       Our supreme court also addressed Coleman’s claim that the trial court had

       erred by not permitting him to introduce evidence that he was acquitted in the

       shooting death of a victim. Id. The court found that the evidence of Coleman’s

       acquittal of the murder charge was inadmissible in the subsequent attempted

       murder prosecution, since the video documenting the shooting of the attempted

       murder victim did not reveal that Coleman shot the murder victim, thus, there

       was no evidence of the prior crime. Id. Specifically, the court found that “in

       the absence of any evidence revealing a crime against” the murder victim,

       Coleman “was not entitled to introduce evidence of [the] acquittal.” Id. at

       1170.


[18]   Trial Counsel would not have successfully argued for the admission of evidence

       of Berkman’s prior acquittal by relying on Coleman. Coleman is inapplicable to

       this case and simply does not stand for an all-inclusive admission of evidence of

       a prior acquittal is admissible. Moreover, Berkman makes no attempt to show

       how Coleman allows evidence of a defendant’s prior acquittal admissible. In

       addition we find that the fact that Berkman was acquitted of the murder charge

       in the first trial was of no moment. Our Supreme Court has held that a crime of

       which a defendant has been acquitted is admissible to show proof of motive,

       intent, preparation, plan, knowledge, identity, or absence of mistake or

       accident. Hare v. State, 467 N.E.2d 7, 18 (Ind.1984). Berkman does not claim

       that his prior murder acquittal was relevant for any legitimate purpose such as

       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019   Page 10 of 14
       “motive, intent, preparation, plan, knowledge, identity, or absence of mistake

       or accident.” Id.


[19]   Moreover, it is well established that counsel is afforded considerable discretion

       in choosing strategy and tactics. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001).

       We strongly presume that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment. Id. At

       the post-conviction hearing, Trial Counsel explained that he was aware of

       Coleman at the time of the trial, but he could “think” not “legal basis” to

       attempt to bring to the attention of the jury that Berkman had been previously

       acquitted of murder. It is apparent that Trial Counsel exercised reasonable

       professional judgment when he decided not to introduce evidence of Berkman’s

       prior acquittal of the murder charge.


[20]   Based on the foregoing, we conclude that Berkman’s Trial Counsel could not

       have been ineffective for failing to present evidence of Berkman’s acquittal,

       since the trial court would not have admitted that evidence.


                                                B. Robbery Charge


[21]   Berkman argues that his Trial Counsel performed deficiently since he failed to

       argue at his trial, that State should have additionally charged him with robbery,

       the underlying felony for the felony murder. The State contends that it does

       “not need to charge both felony murder and the underlying felony when

       charging a defendant with felony murder. In fact, the State frequently charges

       felony murder as a stand-alone offense and does not charge the underlying

       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019   Page 11 of 14
       felony.” (Appellant’s Br. p. 26). The State continues, “Berkman can point to

       no requirement in the law, and the State is unaware of any, that requires the

       State to charge the underlying felony in addition to felony murder as a separate

       [C]ount in the charging [I]nformation.” (Appellant’s Br. p. 26). We agree with

       the State.


[22]   Although Berkman cites to several cases where the underlying felony in

       addition to the felony murder was charged, those cases are inapplicable in this

       case since they do not establish that the State was required to separately charge

       the underlying felony. Trial Counsel would not have prevailed in arguing at

       trial that the State should have charged Berkman with robbery in addition to

       murder. Therefore, Trial Counsel cannot be said to have performed deficiently

       by failing to raise an argument that was completely unsupported by law and

       that would not have been successful at the trial. Similarly, we conclude that the

       Trial Counsel did not render deficient performance.


                                              C. Failure to Object

[23]   To establish ineffective assistance based on the failure to object to the admission

       of evidence, the petitioner must show that an objection would have been

       sustained had it been made and that the petitioner was prejudiced by the failure

       to object. Taylor v. State, 929 N.E.2d 912, 918 (Ind. Ct. App. 2010), trans.

       denied. Strickland does not require any more of counsel’s performance than that,

       and it “does not guarantee perfect representation, only a reasonably competent

       attorney.” McCullough v. State, 973 N.E.2d 62, 76 (Ind. Ct. App. 2012), trans.

       denied. Moreover, the inquiry under Strickland is not whether trial counsel

       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019   Page 12 of 14
       could have done more, but instead whether counsel’s performance fell below an

       objective standard of reasonableness based on prevailing professional norms.

       See Strickland, 466 U.S. at 694. Additionally, we remind Berkman that he is not

       entitled to a perfect trial, but is entitled to a fair trial, free of errors so egregious

       that they, in all probability, caused the conviction. Averhart, 614 N.E.2d at 929.


[24]   As far as we can discern, Berkman contends that Trial Counsel failed to object

       to the admission of Timmerman’s deposition at his trial. The record shows that

       prior to Berkman’s second trial, Berkman’s former girlfriend, Timmerman, who

       was among the State’s key witnesses, was unavailable to testify. Trial Counsel

       objected to the admission of Timmerman’s deposition testimony, moved for a

       mistrial, but was denied. During the post-conviction hearing, Trial Counsel

       explained, “I lost the [] Timmerman argument, but not for lack of trying.”

       (PCR Tr. p. 185). Trial Counsel was not ineffective just because the trial court

       issued unfavorable rulings in response to his objections. To the contrary, the

       facts indeed show that Trial Counsel did his utmost to ensure that

       Timmerman’s testimony would not be admitted. Even if Trial Counsel’s

       performance fell below an objective standard of reasonableness based on

       prevailing professional norms, Berkman cannot show he was prejudiced by

       Trial Counsel’s performance. Similarly, we find that the post-conviction court

       did not err in denying Berkman’s claim on this issue.


                                             D. Free Standing Claims

[25]   In addition to his allegations of ineffective assistance of Trial Counsel, Berkman

       asserts numerous complaints against the trial court and the State. Among these

       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019   Page 13 of 14
       contentions are allegations that the trial court and the State colluded against

       him at trial, and that the trial court abused its discretion in admitting certain

       evidence. As a general rule, most free-standing claims of error are not available

       in a post-conviction proceeding because of the doctrines of waiver and res

       judicata. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001). For instance,

       “[i]f an issue was known and available, but not raised on direct appeal, it is

       waived.” Id. Likewise, “[i]f an issue was raised on direct appeal, but was

       decided adversely, it is res judicata.” Id. Accordingly, Berkman waived these

       allegations, as their review is unavailable to him in post-conviction relief

       proceedings.


                                             CONCLUSION
[26]   Based on the foregoing, we conclude that Trial Counsel provided effective

       assistance to Berkman, and we accordingly affirm the post-conviction court’s

       denial of Berkman’s petition.


[27]   Affirmed.


[28]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019   Page 14 of 14
