MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Mar 06 2020, 10:37 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
Lindsay Van Gorkom                                       Evan Matthew Comer
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Larry Warren,                                            March 6, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-PC-1299
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Respondent.                                     Mark D. Stoner, Judge
                                                         The Honorable
                                                         Jeffrey L. Marchal, Magistrate
                                                         Trial Court Cause No.
                                                         49G06-1508-PC-30158



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020                   Page 1 of 36
[1]   Larry Warren (“Warren”) was convicted of three counts of child molesting,1

      each as a Class A felony, and two counts of child solicitation,2 each as a Class

      D felony. On direct appeal, our court remanded the case for resentencing

      pursuant to Blakely v. Washington, 542 U.S. 296 (2004). Warren appealed

      following resentencing and later filed a petition for post-conviction relief. The

      post-conviction court granted Warren’s petition in part by vacating the two

      Class D felony convictions and sentences on the ground that they violated ex

      post facto laws. Warren now appeals from the partial denial of his petition for

      post-conviction review, raising the following consolidated and restated issues:


                 I. Whether Warren received ineffective assistance of counsel
                 when trial counsel failed to contemporaneously object to the
                 admission of State’s Exhibit 15, which was a sexually explicit
                 video portraying Warren and the victim;


                 II. Whether Warren received ineffective assistance of counsel
                 when appellate counsel on direct appeal failed to argue that the
                 admission of State’s Exhibit 15 constituted fundamental error;


                 III. Whether Warren received ineffective assistance of counsel
                 when appellate counsel on appeal following resentencing failed
                 to challenge the trial court’s inadequate explanation for imposing
                 consecutive sentences for two of the Class A felonies; and




      1
          See Ind. Code § 35-42-4-3.
      2
          See Ind. Code § 35-42-4-6.


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 2 of 36
               IV. Whether the post-conviction court erred when it failed to
               order a new sentencing hearing after vacating the sentence and
               conviction for each of the two Class D felonies.


[2]   We affirm.3


                                    Facts and Procedural History
[3]   The facts underlying Warren’s convictions were set forth in prior appeals as

      follows:4


               In approximately 1998, Warren met and became business
               partners with D.R., the mother of two minor daughters, J.R. and
               H.R. J.R. was nine years old when she met Warren, who was
               then approximately thirty-three years old. Soon Warren and
               D.R. began dating, and Warren began spending more time at
               D.R.’s house. Warren became a companion to J.R., driving her
               to skating lessons, taking her to movies, and taking her out to eat.
               At some point while J.R. was still nine years old, Warren began
               engaging in frequent sexual activity with her. For the first few
               years, the sexual activity included activities like oral sex but
               excluded intercourse. Then, when J.R. was thirteen years old,
               she and Warren began engaging in intercourse. Warren would
               often videotape sexual encounters with J.R., and he took
               inappropriate photographs of her. When J.R. was approximately




      3
       We thank the post-conviction court for its thorough, informative, and well-written order, which greatly
      assisted our consideration of Warren’s claims.
      4
        There were three separate appeals in this case; therefore, we will use the following abbreviations to cite to
      the records in each of those cases. We will refer to: (1) the direct appeal, Cause No. 49A04-1301-CR-25, as
      “CR-25”; (2) the resentencing appeal, Cause No. 49A02-1402-CR-89, as “CR-89”; and the underlying
      documents in the instant appeal as “PCR.”

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020                       Page 3 of 36
              fourteen and a half years old, Warren moved out of state for
              work.


              When J.R. was eighteen or nineteen years old, she began a
              relationship with Warren, and he paid her rent on an apartment
              for one year. When Warren informed J.R. that he would not be
              renewing her lease, J.R. contacted police to report the incidents
              of child molesting Warren had committed during her childhood.
              J.R. had recovered a videotape recording depicting Warren and
              then-fourteen-year-old J.R. engaging in sexual activity, and she
              turned that videotape over to the police. J.R. also gave police
              inappropriate photographs Warren had taken of her when she
              was a minor.


              [In January 2010, t]he State charged Warren with five counts of
              child molesting as Class A felonies and five counts of sexual
              misconduct with a minor as Class B felonies. [The State alleged
              that Warren had committed the Class A felony offenses between
              November 16, 1998 and November 15, 2002, when J.R. was
              under the age of fourteen.] The trial court subsequently
              dismissed the sexual misconduct counts because the statute of
              limitations had run, and the State moved to amend the
              information to add two counts of child solicitation as Class D
              felonies. [The State alleged that Warren committed child
              solicitation between November 16, 2002 and November 15,
              2004, when J.R. was at least fourteen but less than sixteen years
              of age.] The trial court granted the State’s motion to amend.


      Warren v. State, No. 49A04-1301-CR-25, 2013 WL 5532705 (“Warren I”), at *1

      (Ind. Ct. App. Oct. 8, 2013), trans. denied.


[4]   At his December 13, 2012 trial, Warren was represented by Felicia Howells

      (“Howells”) and Andrea Ciobanu (“Ciobanu”). On the morning of trial,

      Howells and Ciobanu filed a motion in limine, in part, to exclude from
      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 4 of 36
      evidence State’s Exhibit 15 (“Exhibit 15”), which was the “video allegedly

      recorded by [Warren] in or about 2003, at a time when the alleged victim would

      have been 14 years of age, purportedly depicting [Warren] digitally penetrating

      the vagina of the alleged victim.” PCR Appellant’s App. Vol. II at 144. This was

      the sixth such motion filed over the three years the case was pending that had

      sought to prevent admission of Exhibit 15 on the basis that it was “overly

      prejudicial and not probative.” CR-25 Appellant’s App. Vol. II at 246-47.


[5]   Just prior to trial, the trial court heard argument from Howells and Ciobanu

      regarding the six motions. Noting that Exhibit 15 “goes to” the Class D

      felonies, Howells offered to stipulate that Warren had touched J.R. when she

      was fourteen and a half years old, thus negating the need to introduce Exhibit

      15. CR-25 Tr. Vol. I at 14. Howells argued that Exhibit 15 was not probative

      because it “wouldn’t prove that [Warren] performed prior acts.” Id. at 15.

      Ciobanu argued that Exhibit 15 did not “go to the initial A count, which

      alleged molestation prior to the age of 14, it only addresses molestation by the

      videos on admittance that it happened at 14,” which coincides with the Class D

      felonies. Id. at 15. Howells also argued that “with respect to the video

      recordings and pictures of alleged victim naked taken by [Warren] at his

      mother’s home . . . [and] in a hotel room, we again strongly reiterate that that

      should be excluded . . . . Those pictures are highly prejudicial and

      inflammatory.” Id. at 19. Warren, likewise, sought to suppress certain letters

      that J.R. wrote to Warren, arguing that they were not relevant and more

      prejudicial than probative. Id. at 21-22.


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 5 of 36
[6]   The State argued that Exhibit 15 was “‘part and parcel of the crimes charged

      here. Not only is it actually a part of the crime in Counts [VI] and [VII],5[ ] but

      it is also part and parcel of crimes . . . as charged in [I] through [V] as it goes to

      the nature of the relationship for those counts . . . .’” Id. at 12. The State said it

      did not agree that Warren could stipulate to having committed the two Class D

      felonies. Id. at 14. The State argued that the exhibits were all “relevant” and

      “part and parcel of the crime.” Id. at 23. Argument on the motions to exclude

      the incriminating photographs and Exhibit 15 was extensive. Id. at 12-32. The

      trial court denied Warren’s requests to exclude the photographs and Exhibit 15

      and denied Warren’s offer to stipulate that he had committed the Class D

      felonies by touching J.R. in a sexual way when she was fourteen years old. Id.

      at 14, 27.


[7]   A jury was empaneled, and during opening argument, Howells contended that

      J.R.’s credibility was suspect, stating,


               [Y]ou’re going to meet a 24-year-old J.R. who took advantage of
               a situation, who when our client, Mr. Warren, stopped helping
               her out with her children, stopped helping her out with her rent,
               stopped assisting her financially, . . . after 12 years or so of
               alleged abuse, suddenly raises an issue of, he abused me from the
               time I was 9 until I was 14, 15. Which is quite interesting,
               because none of these allegations were made when she was 9,
               when she was 10, when she was on a school bus at around 11,



      5
        In the original information, the State charged Warren with Class B felony sexual misconduct with a minor
      under Counts VI through X. Those counts were dismissed, and the State amended the information to charge
      Warren with Class D felony child solicitation under Counts XI and XII. Notwithstanding that numbering,
      the trial court referred to the child solicitation felonies as Counts Six and Seven. CR-25 Tr. Vol. II at 319-22.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020                       Page 6 of 36
              and she was asked by her friend . . . about the relationship . . .,
              she denied there was a relationship . . . .


              So you’re going to hear a J.R. who, when it was convenient for
              her, when, for lack of a better phrase, the well runs dry, suddenly
              these harsh allegations, these life-altering, these incredible
              allegations are made for something that has allegedly been going
              on since age 9.


              [W]e will introduce evidence . . . that Mr. Warren, our client,
              was paying her rent . . . . And when he informed her that he was
              no longer going to be able to pay her rent . . . she was livid.
              We’re going to show that she went to the apartment manager and
              [repeatedly] told the apartment manager that I will get him. . . .
              And yeah, she got him. You guys are here today. He’s sitting
              over there simply because he was no longer supporting her.


              So you’re going to meet a J.R. who’s not this 9-year-old J.R.
              who’s a victim; you’re going to meet . . . a 24-year-old J.R. who
              really knows how to work the system, who really knows how to
              take things and use them to her advantage.


      CR-25 Tr. Vol. I at 54-56. Howells argued to the jury that dates were important;

      noting that a conviction could not rest on vagueness. Id. at 56.


[8]   Addressing the contents of Exhibit 15, Howells argued:


              [Y]ou are going to be presented with . . . a video of J.R. and
              [Warren] together. And in this particular video, there is an
              image of . . . [Warren] touching J.R. The video will say that this
              happens at [the age of] 14. Now, when you look at the charges
              that have been filed against Mr. Warren, the “A” charges, the
              most severe charges, have to do with the ages prior to 14. So the
              only objective evidence that they have is a video showing

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 7 of 36
               something at 14. Everything relating to what happened between
               9, 10, 11, 12 is all conjecture, it’s all testimony. . . . No one went
               to a nurse. No one went to a social worker. There was no
               medical examination ever done. So I just want you to just look
               at that video with the knowledge that with respect to the items
               between 9 and 14, there’s nothing, except he touched me. . . .
               That’s it. Or did this to me or he did that. But again, I remind
               you there are no dates.


       Id. at 56-57.


[9]    J.R. was the State’s key witness and testified that Warren had committed

       various acts of vaginal penetration, including acts that occurred in her mother’s

       house when J.R. was nine years old, in Warren’s mother’s house when J.R. was

       thirteen, and at a Ramada Inn when she was thirteen. Id. at 62-73. The State

       introduced a number of exhibits during J.R.’s testimony, including a letter J.R.

       wrote to Warren when she was about twelve years old, describing her intimate

       relationship with Warren. CR-25 State’s Conf. Ex. 2. When the State moved to

       admit Exhibit 15, the trial judge asked, “Response from the defense?” CR-25

       Tr. Vol. I at 86. Ciobanu responded, “I have no objection, Your Honor,” and

       the State admitted Exhibit 15. Id. at 87. J.R. testified that the sex acts depicted

       in the video, as well as the acts committed in the homes and in a Ramada Inn,

       were all performed in Marion County. J.R. identified Warren as the man

       performing the sexual acts. Id.


[10]   Against advice of counsel, Warren testified that he had not engaged in anything

       sexual in nature with J.R. when she was between the ages of nine and fourteen.

       Id. at 205. He reiterated that nothing sexual happened at J.R.’s mother’s house

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 8 of 36
       and nothing happened at his mother’s house. Id. at 208. Admitting that he had

       seen Exhibit 15, Warren testified that the video depicted the first time that he

       had any kind of sexual contact with J.R. Id. at 208-09. Although the video

       suggested that J.R. had intercourse that day, Warren denied that he was the one

       with whom she had intercourse. Id. at 230-31. Instead, Warren testified that

       J.R. and her boyfriend had engaged in intercourse earlier that day. Id. Warren

       said that he had no sexual relationship with J.R., other than that shown in

       Exhibit 15, until J.R. was eighteen years old. Id. at 215.


[11]   In closing, the State recited J.R.’s testimonial evidence as proof of the five

       counts of Class A felony child molesting and cited to Exhibit 15 as support for

       the Class D felony counts. CR-25 Tr. Vol. II at 252-55. The jury found Warren

       guilty of three counts of Class A felony child molesting and two counts of Class

       D felony child solicitation but found him not guilty of the remaining two counts

       of Class A felony child molesting. Id. at 275. The trial court sentenced Warren

       to “30 years plus 10 years aggravating” for each Class A felony conviction and

       “one and a half years plus one and a half years aggravating” for each Class D

       felony conviction and ordered that the sentences would run concurrently,

       except that one of the sentences for child molesting would run consecutive to

       the others, for an aggregate term of eighty years. Id. at 319-20.


[12]   On direct appeal, Warren’s appellate counsel, Victoria L. Bailey (“Bailey”),

       raised just one issue: “[W]hether the trial court erred when it enhanced

       [Warren’s] sentence based on aggravators that were neither found by a jury nor

       admitted in accordance with the holding in Blakely v. Washington, 542 U.S. 296

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 9 of 36
       (2004).” Warren I at *1. Our court observed that Warren committed the

       offenses prior to the April 2005 amendment of Indiana’s sentencing scheme;

       therefore, Warren was entitled to be sentenced under the former presumptive

       sentencing scheme to which Blakely applied. Id. at *2. We held that Warren’s

       testimony was sufficient to establish the aggravating circumstance that he

       violated a position of trust with J.R., an aggravator that did not violate Blakely.

       Id. at *3. However, we also held that the trial court’s other two aggravators

       violated Blakely and, therefore, could not stand. Id. We remanded to the trial

       court “with instructions to afford the State an election to prove to a jury those

       aggravating circumstances initially presented to, and found by, the trial court.”

       Id. We also held that, should the State forgo that election, the trial court was

       instructed to reconsider the appropriate sentence based on the single,

       established violation of a position of trust. Id.


[13]   During the resentencing hearing, the State did not argue aggravators to a jury;

       instead, it proceeded to resentencing with only the established aggravating

       circumstance that Warren had violated a position of trust with J.R. CR-89 Tr.

       Vol. I at 4. Warren offered mitigating circumstances saying that, while

       incarcerated, he had completed numerous courses, had no criminal history, and

       “had no conduct reports.” Id. at 6, 11. He said he was employed by PEN

       Products, was enrolled in an apprenticeship program, served as an executive

       officer with the American Legion, regularly attended church, and played and

       helped coach softball. Id. at 6. Warren testified that he was still being treated

       for post-traumatic stress disorder (“PTSD”), which arose after his military

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 10 of 36
       service. Id. at 8. In response to defense counsel’s question of what he regretted,

       Warren said:


               [T]his has been a big struggle for me, Your Honor. I have
               allowed myself to be put in situations that I should not have.
               And I’ve had to live with that every day. And I do apologize for
               my actions. I apologize for putting the Courts through this as
               well as the prosecutors, as well as my family and my attorneys. I
               just ask, Your Honor, to please have mercy on me. I deeply
               regret what I’ve done. . . . I will never allow these things to
               happen or be put in that position ever again, Your Honor. And I
               just would like to have mercy and ask mercy from the Courts and
               so that I can . . . so I can go home and be with my family and
               take care of my father, Your Honor. And be with my mom.


       Id. at 11.


[14]   The State commented that Warren had apologized to everyone but the victim

       and her family and, again, reminded the court that Warren had, for many years,

       violated a position of trust with J.R. Id. at 15. The State, responding to

       Warren’s claim that he allowed himself to be put in a situation, said:


               He was a grown-up. She was a child. That position of trust in a
               child molesting case is the worst aggravator that a person can
               violate with a child. That child was with him. Taking her
               places. He took her to . . . ice skating lessons. He took her to the
               movie. The video that we saw was of them spending the day
               together, driving around in a car where he was letting her drive
               when she was fourteen, videotaping her, videotaping her ice
               skating and then taking her to a . . . trailer and performing
               criminal deviate conduct on her [by digital penetration]. That is
               not what a grown-up does or a person who has [PTSD] or any of
               those things, does to a child. That man molested a child for a

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 11 of 36
               long period of time. That position of trust is the worst aggravator
               that can be ever done to a child in that case. This isn’t a
               modification of sentence. So I would ask that the Judge give
               little weight to . . . the programs that he has taken while he’s been
               in D.O.C. These are crimes of violence which can run
               consecutively and if the Judge takes into account that these were
               three distinct acts that took place over . . . different periods of
               times. They were three different A felonies that he was found
               guilty of. So these should run consecutively, not concurrently.


       Id. at 16.


[15]   From the evidence presented, the trial court on resentencing found one

       aggravating factor, Warren’s violation of the position of trust, and one

       mitigating circumstance, his lack of criminal history. Id. at 18-19. The court

       stated: “with respect to the proposed mitigator that you’re likely to respond

       well to short term imprisonment and you [are] low risk to re-offend, the Court

       finds there is insufficient evidence to justify that mitigator and rejects that

       mitigator looking at the nature and circumstances of the offense and

       convictions.” Id. at 18. The court rejected Warren’s proposed mitigator of his

       PTSD. Id. The court also rejected Warren’s proposed mitigator that he was

       molested as a child and stated: “If you were molested as a child, if that's true,

       then you understand the pain and the trauma that has resulted by being a victim

       of molest.” Id. The court rejected Warren’s proposed mitigator that he was on

       GPS monitoring for two years and did not re-offend. Id. at 19. The trial court

       found the aggravating factor of violating a position of trust outweighed the

       mitigating factor of lack of criminal history. Id. The court sentenced Warren to


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 12 of 36
       thirty years, aggravated by five years, for each of his Class A felony child

       molesting convictions and one and a half years, aggravated by one and a half

       years, for each of his Class D felony child solicitation convictions. Id. The

       court ordered the sentences for two of the Class A felony convictions to be

       served consecutively and ordered the remaining sentences be served

       concurrently, for an aggregate term of seventy years. Id.


[16]   Represented by attorney Eric K. Koselke (“Koselke”), Warren appealed the

       revised sentence, claiming that the trial court abused its discretion by failing to

       give weight to significant mitigating circumstances, and that Warren’s sentence

       was inappropriate in light of the nature of the offense and the character of the

       offender under Appellate Rule 7(B). Warren v. State (“Warren II”), No. 49A02-

       1402-CR-89, 2014 WL 4809796, at *1, *2 (Ind. Ct. App. Sept. 29, 2014), trans.

       denied. Addressing the first issue, our court noted:


               Under the pre-April 25, 2005 sentencing statutes, sentencing
               decisions rest within the discretion of the trial court and are
               reviewed on appeal only for an abuse of discretion. An abuse of
               discretion occurs if the decision is clearly against the logic and
               effect of the facts and circumstances before the court. In order
               for a trial court to impose an enhanced sentence, it must: (1)
               identify the significant aggravating factors and mitigating factors;
               (2) relate the specific facts and reasons that the court found to
               those aggravators and mitigators; and (3) demonstrate that the
               court has balanced the aggravators with the mitigators.


       Warren II at *3 (internal citations and quotation marks omitted). Warren

       argued that the trial court abused its discretion when it rejected all but one of


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 13 of 36
       his proposed mitigating factors. Analyzing each factor in turn, our court

       concluded that the trial court did not abuse its discretion when it found

       Warren’s lack of criminal history as the sole mitigator. Id. at *3-*5.


[17]   Koselke next argued that Warren’s sentence was inappropriate in light of the

       nature of the offense and his character. Id. at *5. Pointing to his lack of

       criminal history, his military service, his good conduct in prison, his poor

       health, and the fact he “had been a victim of molestation,” Warren urged our

       court to revise his sentence to an aggregate sentence of thirty years. Warren II at

       *5. The State responded that the nature of the offense was heinous; Warren

       “effectively groomed and bribed his young victim into providing him with sex

       and not telling about it by taking her places she wanted to go and buying her

       things that she wanted.” Id. (citation to record omitted). Regarding Warren’s

       character, the State argued that he has not led a law-abiding life, experimented

       with and used illegal substances, and did not have remorse for his sexual acts

       against J.R. Id. Our court, considering the nature of the offense and Warren’s

       character, said that Warren was in a position of trust with J.R., and he began

       engaging in frequent sexual activity with her at age nine. Id. at *6. Warren

       began having intercourse with J.R. when she was thirteen years old, and he

       taped and took inappropriate pictures of those sexual encounters. Id. Our court

       agreed that Warren had violated a position of trust but had no prior criminal

       history. Id. Based on the evidence, our court explained that the trial court (1)

       enhanced Warren’s Class A felonies by five years above the presumptive

       sentence of thirty years, (2) ordered only two of the three Class A felony

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 14 of 36
       convictions to run consecutively, and (3) ordered that the sentences for the two

       class D felonies be served concurrently. Our court concluded that “in light of

       the position of trust Warren held with J.R., . . . the sentence imposed by the

       trial court is not inappropriate in light of the nature of the offense and the

       character of the offender.” Id.


[18]   In August 2015, Warren filed a pro se petition for post-conviction relief, which

       was amended and refiled on January 8, 2018, after Warren obtained counsel.

       In the Amended Petition, Warren made allegations regarding the ineffective

       representation of trial counsel, appellate counsel on direct appeal, and appellate

       counsel and appeal following resentencing. PCR Appellant’s App. Vol. II at 46-

       49. Warren alleged that Howells and Ciobanu were ineffective for (1) failing to

       file a motion to dismiss the two child solicitation counts based upon the

       prohibition against ex post facto laws under the United States and Indiana

       Constitutions and (2) failing to contemporaneously object under Indiana

       Evidence Rules 401, 402, 403, and 404(b) to the introduction of Exhibit 15

       during trial. Id. at 46, 51. Warren also alleged that Bailey was ineffective on

       direct appeal was ineffective for (1) failing to argue that his convictions for child

       solicitation violated the prohibition against ex post facto laws under the United

       States and Indiana Constitutions and (2) failing to argue that the admission of

       Exhibit 15 was fundamental error. Id. at 47. Further, Warren alleged that

       Koselke was ineffective on appeal from resentencing for failing to argue that the

       trial court erred in imposing consecutive sentences without adequately

       explaining its reasoning. Id.


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 15 of 36
[19]   The post-conviction court held an evidentiary hearing on the Amended Petition

       on August 16, 2018. PCR Tr. Vol. II at 2. Attorneys Ciobanu, Howells,

       Koselke, and Bailey testified during the hearing. The State cross-examined

       these witnesses and did not present additional evidence. The post-conviction

       court issued Findings of Fact and Conclusions of Law Granting Post-

       Conviction Relief in Part. PRC Appellant’s App. Vol. II at 142-65. The post-

       conviction court held that Howells, Ciobanu, and Bailey were ineffective with

       regard to Warren’s ex post facto claims because the version of the child

       solicitation statute under which Warren was charged and convicted did not

       exist at the time of the alleged offenses. Id. at 159, 162. Furthermore, Neither

       Ciobanu nor Howells knew that the version of Indiana Code section 35-42-4-6

       in effect on the dates of Warren’s alleged offenses was the version applicable to

       Warren’s case. Id. at 155. During the time period when Warren was alleged to

       have committed child solicitation offenses, Indiana Code section 35-42-4-6 did

       not criminalize such conduct toward children age fourteen and above, unless

       the defendant believed the child to be under the age of fourteen. Id. at 154.

       Bailey acknowledged during the post-conviction hearing that she did not review

       the version of Indiana Code section 35-42-4-6 in effect at the time of the

       offenses and that she should have done so. Id. at 155. The post-conviction

       court vacated Warren’s two convictions for child solicitation. Id. at 165.


[20]   Warren also argued that Exhibit 15 was improperly admitted, specifically, that

       (1) trial attorneys Howell and Ciobanu were ineffective for failing to make a

       contemporaneous objection to Exhibit 15’s admission at trial; and (2) appellate

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 16 of 36
       counsel, Bailey, was ineffective for failing to argue on direct appeal that the

       admission of Exhibit 15 constituted fundamental error. Id. at 46-47. Warren

       also argued that Koselke was ineffective for failing to argue on appeal that the

       trial court’s resentencing order inadequately explained its reasons for imposing

       a consecutive sentence. Id. at 47.


[21]   During the August 16, 2018 post-conviction fact-finding hearing, Warren asked

       Ciobanu and Howells why they did not object when the State sought to admit

       Exhibit 15. Ciobanu provided two explanations saying, first, that it was not her

       role and, second, that Warren “had all these different facts . . . that kept

       morphing.” PCR Tr. Vol. II at 19-20. Howells and Ciobanu testified that they

       thought the trial court’s pre-trial ruling on the admissibility of the Exhibit 15

       was the last word on the matter and that their pre-trial arguments had preserved

       the issue for appeal. Id. at 20-21, 39-40. In response to the State’s question of

       whether Howells was aware of the general rule that the failure to

       contemporaneously object to the introduction of evidence waives the issue on

       appeal,” Howells replied, “[W]e were in the heat of trial. . . . We had a client

       who had been deceptive to us. . . . I am well aware of that . . . I had to tend to

       what was before me.” Id. at 40. Bailey testified that she had considered

       whether to challenge the admission of Exhibit 15 on direct appeal. Id. at 58.

       However, noting that trial counsel had not objected to the admission of Exhibit

       15, and therefore the issue was not preserved for appeal, Bailey determined that

       she could not meet the high standard to prove fundamental error. Id. at 60-61.

       Koselke testified that, at the time he appealed, he knew the law regarding


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 17 of 36
       consecutive sentencing, saying “that’s pretty basic stuff.” Id. at 53-54. Koselke

       stated he did not raise the issue of consecutive sentences because Warren had

       already received a ten-year reduction and, typically, when that issue is raised, it

       is sent back to the trial court and, often times, the trial court changes the

       sentencing statement but imposes the same sentence. Id. at 54. Koselke

       believed, based on his review of the record, that it was best to argue abuse of

       discretion and inappropriate sentence because, then, the sentence would be

       imposed by the court of appeals, which Koselke believed was the better venue

       for relief. Id. Koselke explained that he thought Warren “had a lot of

       mitigation. Id.


[22]   The post-conviction court found that the representation provided by Howells

       and Ciobanu fell below professional norms, when they did not object to the

       admission of Exhibit 15 yet found that counsel was not ineffective because

       Warren had not proved prejudice from that error. PCR Appellant’s App. Vol. II at

       160. The post-conviction court also found no ineffective assistance of counsel

       by: (1) Bailey, because there was “not a reasonable probability that any

       challenge to the admission of Exhibit 15 under a claim of fundamental error

       would have been successful” when Ciobanu stated she had no objection to

       Exhibit 15; and (2) Koselke, because the trial court provided sufficient

       explanation of its reason for imposing consecutive sentences. Id. at 162-63, 164.

       Finding that counsel provided effective assistance of counsel, our court left the

       remaining three convictions and sentences for Class A felony child molesting




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 18 of 36
       untouched and did not remand the case for resentencing. Warren now appeals.

       Additional facts will be presented as necessary.


                                      Discussion and Decision
[23]   This is an appeal from the denial of a petition for post-conviction relief.


               We observe that post-conviction proceedings do not grant a
               petitioner a “super-appeal” but are limited to those issues
               available under the Indiana Post-Conviction Rules. [Ind. Post-
               Conviction Rule 1(1)]. Post-conviction proceedings are civil in
               nature, and petitioners bear the burden of proving their grounds
               for relief by a preponderance of the evidence. Ind. Post-
               Conviction Rule 1(5). A petitioner who appeals the denial of
               [post-conviction relief] faces a rigorous standard of review, as the
               reviewing court may consider only the evidence and the
               reasonable inferences supporting the judgment of the post-
               conviction court. The appellate court must accept the post-
               conviction court’s findings of fact and may reverse only if the
               findings are clearly erroneous. If a [post-conviction] petitioner
               was denied relief, he or she must show that the evidence as a
               whole leads unerringly and unmistakably to an opposite
               conclusion than that reached by the post-conviction court.


       Massey v. State, 955 N.E.2d 247, 253 (Ind. Ct. App. 2011) (quoting Shepherd v.

       State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (citations omitted), trans.

       denied).


[24]   Here, the post-conviction court made findings of fact and conclusions of law in

       accordance with Indiana Post-Conviction Rule 1(6). “A postconviction 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

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 19 of 36
       made.” Benefield v. State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011) (citations

       and quotation marks omitted) (quoting Ben-Yisrayl v. State, 729 N.E.2d 102, 106

       (Ind. 2000)). “The post-conviction court is the sole judge of the weight of the

       evidence and the credibility of witnesses.” Woods v. State, 701 N.E.2d 1208,

       1210 (Ind. 1998). We do not defer to the postconviction court’s conclusions of

       law. Wilson v. State, 799 N.E.2d 51, 53 (Ind. Ct. App. 2003).


[25]   Warren challenges the effectiveness of the representation of his trial attorneys,

       appellate counsel on direct appeal, and appellate counsel on appeal after

       resentencing. “The Sixth Amendment to the United States Constitution

       guarantees criminal defendants the right to counsel and mandates that the right

       to counsel is the right to the effective assistance of counsel. Bobadilla v. State,

       117 N.E.3d 1272, 1279 (Ind. 2019). “We evaluate Sixth Amendment claims of

       ineffective assistance under the two-part test announced in Strickland.” Rondeau

       v. State, 48 N.E.3d 907, 916 (Ind. Ct. App. 2016) (citing Strickland v. Washington,

       466 U.S. 668, 698 (1984)), trans. denied. Effectiveness of counsel is a mixed

       question of law and fact. Strickland, 466 U.S. at 698. To prevail on a claim of

       ineffective assistance of counsel, Warren must demonstrate that (1) counsel’s

       representation fell short of prevailing professional norms, and (2) counsel’s

       deficient performance prejudiced the defendant such that there is a reasonable

       probability that, but for counsels unprofessional errors, the result of the

       proceeding would have been different. Strickland, 466 U.S. at 687-88, 698. “‘A

       reasonable probability is a probability sufficient to undermine confidence in the

       outcome.’” Rondeau, 48 N.E.3d at 916 (quoting Strickland, 466 U.S. at 698).

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 20 of 36
       “The two prongs of the Strickland test are separate and independent inquiries.”

       Id. (citing Strickland, 466 U.S. at 697). “Thus, ‘[i]f it is easier to dispose of an

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

       course should be followed.’” Id. (quoting Strickland, 466 U.S. at 697).


                        I. Ineffective Assistance of Trial Counsel
[26]   Warren argues that his trial counsel was ineffective for failing to make a

       contemporaneous objection to the admission of Exhibit 15 on the basis it was

       not relevant and more prejudicial than probative. “[T]o prevail on a claim of

       ineffective assistance due to the failure to object, the defendant must show an

       objection would have been sustained if made.” Overstreet v. State, 877 N.E.2d

       144, 155 (Ind. 2007).


[27]   Here, trial counsel filed numerous motions in limine seeking to exclude Exhibit

       15 from evidence. In fact, shortly before trial, Howells and Ciobanu argued

       against its admission. Nevertheless, when the State sought to introduce Exhibit

       15 during trial, Ciobanu stated, “I have no objection, Your Honor.” CR-25 Tr.

       Vol. I at 87. The post-conviction court found “that counsels’ failure to reassert

       the objection to the admission of State’s Exhibit 15 when the State sought to

       introduce the evidence at trial fell below prevailing professional norms.”

       Appellant’s Br. at 17 (citing PCR Appellant’s App. Vol. II at 160). Even so, the

       post-conviction court found no ineffective assistance of counsel, because

       Warren had not proved prejudice from trial counsels’ failure to object and

       denied post-conviction relief on that issue. The post-conviction court found:


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 21 of 36
               93. Having viewed State’s Exhibit 15 along with the remaining
               record, the Court is unable to find that an objection or renewed
               motion pursuant to Rule 403 would have been successful.
               Although the exhibit depicted unlawful sexual conduct that is
               disturbing, it is unlikely that the trial court would have sustained
               an objection on the basis that the video was overly prejudicial
               and not probative of the charges.


       PCR Appellant’s App. Vol. II at 153-54.6


[28]   Warren argues that the post-conviction court erred in making the above

       determination because Warren was prejudiced by the cumulative error of his

       own trial counsel’s failure to file a motion to dismiss the Class D felonies as

       violative of ex post facto laws. Warren contends that Exhibit 15, which was

       explicit sexual footage of J.R. when she was fourteen years old, was relevant

       only to the Class D felonies and, without those counts, which were vacated,

       Warren’s objection that Exhibit 15 was not relevant and was more prejudicial

       than probative, would likely have been successful. Appellant’s Br. at 18. We

       disagree. Exhibit 15 was relevant not only as proof of the Class D felonies but

       also served as circumstantial evidence that allowed the jury to infer that Warren

       and J.R. had a sexual relationship when J.R. was thirteen years old, a claim

       that Warren denied. Furthermore, Exhibit 15 undermined Warren’s claim that

       J.R. had made up the claims of molestation to seek revenge for Warren’s




       6
         Furthermore, on the morning of trial, Howells and Ciobanu made extensive arguments to the court on
       Warren’s motion in limine to exclude Exhibit 15, and the trial court denied that motion. We note that it was
       improbable that the trial court would have sustained any objection to the admission of Exhibit 15 just hours
       later.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020                  Page 22 of 36
       nonpayment of her rent. The trial court understood that Exhibit 15 was

       relevant to the Class A felonies as evidenced by its ruling to admit Exhibit 15

       even after Warren offered to stipulate to having committed the Class D felonies.


[29]   Even if Warren is correct that the objection to Exhibit 15 would have been

       sustained under Indiana Evidence Rule 404, merely asserting the violation of a

       particular rule of evidence, as Warren does here, is not enough to establish

       prejudice. See Kubsch v. State, 934 N.E.2d 1138, 1149 (Ind. 2010) (no prejudice

       where defendant failed to object to evidence that was not relevant to the charges

       filed against defendant). Rather, the Strickland test’s prejudice prong requires an

       additional showing that the improper admission of evidence actually had an

       adverse impact on defense by establishing a reasonable probability that but for

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

       different. Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002).


[30]   Here, Warren has not shown a reasonable probability that the jury was

       improperly swayed by the admission of Exhibit 15 in deciding that Warren was

       guilty of three of the five counts of Class A felony child molesting. First,

       Howells was able to downplay the importance of Exhibit 15 when, during

       opening argument, she argued that Exhibit 15 showed only events that occurred

       when J.R. was fourteen, events that had no bearing on Warren’s guilt for the

       Class A felonies, which occurred when J.R. was age nine through age thirteen.

       CR-25 Tr. Vol. I at 56-57. Second, Warren had the opportunity to fully cross-

       examine J.R. after Exhibit 15 was introduced. Id. at 88-120.



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 23 of 36
[31]   There are additional reasons that it was not reasonably probable that the jury

       was swayed by the admission of Exhibit 15. Although graphic and disturbing,

       Exhibit 15 was relevant and just one of the pieces of evidence that supported a

       finding of guilt on the three counts of Class A felony child molesting. J.R.

       testified that Warren had committed various acts of vaginal penetration from

       the age of nine through thirteen, including putting his penis in her vagina, once

       at her mother’s house when J.R. was nine years old, once at Warren’s mother’s

       house when J.R. was thirteen, and once at a Ramada Inn when she was

       thirteen. Id. at 62-73. J.R. testified that some sexual acts caused her to have

       vaginal bleeding around age nine. Id. at 65. Age nine was also when J.R.

       began to engage in oral sex with Warren and watch pornography. PCR

       Appellant’s App. Vol. II at 148.


[32]   Further, the State submitted other substantial evidence that made it unlikely the

       jury was unduly swayed by the admission of Exhibit 15. The State introduced

       other exhibits, including a letter J.R. wrote to Warren when she was twelve

       years old, describing her intimate relationship with Warren. CR-25 State’s Conf.

       Ex. 2. In that letter, J.R. threatened to tell people about their relationship unless

       Warren stopped dating another girl; J.R. testified she was mad at that time

       because “[Warren] was supposed to be her boyfriend.” CR-25 Tr. Vol. I at 80-

       81. Over Warren’s objection, the State also introduced several photographs

       taken by Warren that showed J.R., in sexual poses and wearing lingerie. Id. at

       83-86. J.R. testified she remembered that, at thirteen years of age, she and

       Warren went to Priscillas, “a sex toys store.” Id. at 72. J.R. had told Warren

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 24 of 36
       she “wanted to wear a really cute outfit for him, so [Warren] went in and

       bought [her] a black kind of see-through top and the bottoms that go with it.”

       Id. J.R. testified, “They were like little booty shorts.” Id. In one photograph,

       J.R. was “depicted in the black top purchased by Warren shortly before they

       engaged in sexual intercourse.” PCR Appellant’s App. Vol. II at 149.


[33]   Additionally, the jury had the opportunity to judge Warren’s credibility when,

       against the advice of counsel, he testified. Warren said he met J.R. when she

       was nine years old but denied he had engaged in anything sexual in nature with

       J.R. when she was between the ages of nine and fourteen. CR-25 Tr. Vol. I at

       205. Specifically, Warren challenged J.R.’s account that something sexual

       happened at J.R.’s mother’s house and at his mother’s house. Id. at 208-09.

       Admitting that he had seen Exhibit 15, Warren testified that the video depicted

       the first time that he had any kind of sexual contact with J.R. Id. at 209.

       Although the video suggested that J.R. had intercourse that day, Warren denied

       that he was the one with whom she had intercourse. Id. at 231. Instead,

       Warren testified that J.R. and her boyfriend had engaged in intercourse earlier

       that day. Id. at 230-31. Warren said that he had no sexual relationship with

       J.R., other than that shown in Exhibit 15, until J.R. was eighteen years old. Id.

       at 215. When J.R. was around eighteen years old, she told her mother about

       Warren having sexually abused her as a child. Soon thereafter, Warren learned

       that J.R.’s mother knew about his sexual activity with J.R. J.R. and her mother

       threatened to call the police. Id. at 232. Warren admitted that he made an

       agreement with J.R. that he would pay her rent for a year. Id. at 232-33.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 25 of 36
[34]   The manager of an apartment complex testified that she had leased an

       apartment, and Warren and J.R.’s names were both on the lease. Id. at 175.

       J.R. lived in the apartment, and Warren paid the rent. After the first year,

       Warren took his name off the lease. Id. at 179. The manager testified that,

       upon learning that Warren was no longer going to be paying the rent, J.R.

       became angry. Id. at 180. When J.R. did not pay the rent, the apartment

       complex sued J.R. and had her evicted. Id. at 181.


[35]   Here, the question of whether J.R. was molested between ages nine and

       fourteen was predominantly a question of credibility. J.R. testified that Warren

       had sexually molested her continually from age nine through age fourteen, at

       which time he moved away. J.R. testified that the relationship began again in

       her late teenage years and continued until she was nineteen. The State

       introduced photographs and letters that supported J.R.’s testimony. Warren

       argued that he did not sexually molest J.R., saying that J.R. told no one about

       the alleged molestation during her childhood and only mentioned it when

       Warren stopped paying her rent. The jury believed J.R.’s testimony over

       Warren’s testimony. While Exhibit 15 was not direct evidence of the elements

       to prove Class A felony child molesting, it allowed the jury to determine

       whether it was more probable than not that J.R. was telling the truth. From our

       review of the totality of the evidence, we find no reasonable probability that, but

       for the admission of Exhibit 15, the proceedings below would have resulted in a

       different outcome. Gibson v. State, 133 N.E.3d 673, 682 (Ind. 2019).

       Furthermore, an evidentiary error, if any, is harmless if its probable impact on


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 26 of 36
       the jury, in light of all the evidence in the case, is sufficiently minor so as not to

       affect the substantial rights of the parties. Lambert v. State, 675 N.E.2d 1060,

       1065 (Ind. 1996), cert. denied, 520 U.S. 1255 (1996). Trial counsel was not

       ineffective in their representation of Warren.


             II. Ineffective Assistance of Counsel on Direct Appeal
[36]   Warren next contends that Bailey, his appellate counsel on direct appeal,

       provided ineffective representation when she did not argue that trial counsel’s

       failure to object to the admission of Exhibit 15 constituted fundamental error.

       To establish fundamental error, a defendant must show that the alleged error

       was so prejudicial as to make a fair trial impossible. Ryan v. State, 9 N.E.3d

       663, 668 (Ind. 2014). Here, the alleged error was Bailey’s failure to argue on

       direct appeal that trial counsel committed fundamental error by not objecting to

       the admission of Exhibit 15. In other words, Warren’s argument is that the

       admission of Exhibit 15 was an error so prejudicial as to make a fair trial

       impossible.


[37]   “[B]ecause the standard for ineffective assistance prejudice is based on a

       reasonable probability of a different result and fundamental error occurs only when

       the error is so prejudicial that a fair trial is rendered impossible,” our court has held

       that “the standard required to establish fundamental error presents a higher

       bar.” Benefield, 945 N.E.2d at 804 (emphasis added). “Establishing a claim of

       fundamental error requires a showing of at least as much prejudice to the

       defendant as a claim of ineffective assistance of [trial] counsel.” Culver v. State,


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020    Page 27 of 36
       727 N.E.2d 1062, 1070 (Ind. 2000). “[A] finding that Defendant was not

       denied the effective assistance of [trial] counsel also establishes that the alleged

       error was not so prejudicial as to constitute fundamental error.” Id.

       Accordingly, our finding that Warren’s trial attorneys were not ineffective for

       failing to “object” to the admission of Exhibit 15, necessitates the conclusion

       that Bailey, likewise, was not ineffective for failing to argue that the lack of an

       “objection” constituted fundamental error. Regardless of whether Bailey’s

       representation fell short of prevailing professional norms, Warren has not

       proven that Bailey was ineffective for failing to argue that the admission of

       Exhibit 15 by the trial court was fundamental error.


             III. Ineffective Counsel on Appeal from Resentencing
[38]   Koselke, who represented Warren on appeal from resentencing, raised two

       issues, (1) whether the trial court abused its discretion by failing to give weight

       to significant mitigating circumstances, and (2) whether, under Appellate Rule

       7(B), Warren’s sentence was inappropriate in light of the nature of the offense

       and Warren’s character. Here, Warren contends that Koselke provided

       ineffective representation when he did not also challenge the resentencing

       court’s inadequate explanation for imposing consecutive sentences for two of his

       Class A felony convictions. Appellant’s Br. at 18 (emphasis added).


[39]   Citing to three Supreme Court cases—Lander v. State, 762 N.E.2d 1208 (Ind.

       2002), Monroe v. State, 886 N.E.2d 578 (Ind. 2008), and Harris v. State, 897

       N.E.2d 927 (Ind. 2008)—Warren argues, “Multiple times, the Supreme Court


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 28 of 36
       has addressed the question of whether a trial court, in imposing consecutive

       sentences under Indiana’s former presumptive sentencing scheme, adequately

       explained its reasons for doing so.” Appellant’s Br. at 39. Warren asserts that in

       those three cases, “readily available to appellate counsel at the time of Warren

       II, the Supreme Court held the trial court’s explanation was inadequate and

       thereafter revised the appellants’ sentences downward.” Id. at 39-40. Warren

       maintains that this issue was significant and obvious from the face of the

       record, and Koselke was ineffective for not raising it. Assuming without

       deciding that Koselke should have raised this issue on appeal from

       resentencing, we find Warren was not prejudiced.


[40]   Warren committed his crimes before the legislature amended Indiana’s

       sentencing statutes to provide for “advisory sentences” rather than

       “presumptive sentences.” Monroe, 886 N.E.2d at 579. The sentencing statute in

       effect at the time a crime is committed governs the sentence for that crime.

       Harris v. State, 897 N.E.2d 927, 928-29 (Ind. 2008). Therefore, the prior

       presumptive sentencing scheme applies. Monroe, 886 N.E.2d at 579.


[41]   Warren is correct that “[a]fter a court has pronounced a sentence for a felony

       conviction, the court shall issue a statement of the court’s reasons for selecting

       the sentence that it imposes.” Ind. Code § 35-38-1-1.3. Indiana’s case law has

       made clear that sentencing statements serve two primary purposes: (1) they

       guard against arbitrary and capricious sentencing; and (2) they provide an

       adequate basis for appellate review. Anglemyer v. State, 868 N.E.2d 482, 489

       (Ind. 2007) (citing Dumbsky v. State, 508 N.E.2d 1274, 1278 (Ind. 1987)), clarified

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 29 of 36
       on reh’g, 875 N.E.2d 218 (Ind. 2007). Under the prior presumptive sentencing

       scheme, when the trial court imposed a sentence other than the presumptive

       sentence, or imposed consecutive sentences where not required to do so by

       statute, our Supreme Court “would examine the record to ensure that the court

       explained its reasons for selecting the sentence it imposed.” Id. A sentencing

       statement “must include a reasonably detailed recitation of the trial court’s

       reasons for imposing a particular sentence.” Id. at 490. Before a trial court can

       impose a consecutive sentence, it must “(1) identify all significant aggravating

       and mitigating circumstances; (2) set forth the specific facts and reasons that

       lead the court to find the existence of each such circumstance; and (3)

       demonstrate that the mitigating and aggravating circumstances have been

       evaluated and balanced in determining the sentence.” Harris, 897 N.E.2d at

       929. Ways in which a trial court may abuse its discretion include “failing to

       enter a sentencing statement at all . . . or the reasons given are improper as a

       matter of law.” Anglemyer, 868 N.E.2d at 490-91.


[42]   “When sentencing a defendant on multiple counts, an Indiana trial judge may

       impose a consecutive sentence if he or she finds at least one aggravator. Smylie

       v. State, 823 N.E.2d 679, 686 (Ind. 2005). “Certainly, where a judge finds that

       aggravating and mitigating circumstances are in equipoise, we have required

       concurrent sentences, Marcum v. State, 725 N.E.2d 852, 863-64 (Ind. 2000), just

       as we have where the court has not found any aggravating circumstances at

       all.” Smylie, 823 N.E.2d at 686. However, as our Supreme Court in Smylie

       found that “our statutes do not erect any target or presumption concerning

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 30 of 36
       concurrent or consecutive sentences.” Id. “Where the criminal law leaves

       sentencing to the unguided discretion of the judge there is no ‘judicial

       impingement upon the traditional role of the jury.’” Id. (quoting Blakely, 542

       U.S. at 309). In Smylie, our Supreme Court found there is “no language in

       Blakely or in Indiana’s sentencing statutes that requires or even favors

       concurrent sentencing. Smylie, 823 N.E.2d at 686. Here, like in Smylie, the trial

       court’s order that Warren serve consecutive terms after finding an aggravating

       factor—that he violated a position of trust—did not increase Warren’s sentence

       above the statutory maximum for each offense.7


[43]   Here, both the trial court and the court on remand for resentencing entered a

       sentencing statement, and both courts found aggravating factors and mitigating

       factors. The trial court identified three aggravators: (1) Warren was in a

       position of trust with J.R.; (2) at least one incident occurred when J.R.’s minor

       sister was present; and (3) Warren violated a no contact order. Warren I, at *2.

       On remand, to avoid having to prove the existence of aggravating factors to a

       jury, the State argued only that Warren violated a position of trust. Each trial

       court found Warren’s lack of prior criminal history as the sole mitigating




       7
        On direct appeal, Bailey argued that the trial court violated Blakely when imposing Warren’s sentence.
       Bailey recognized, however, that “Smylie held that Blakely did not impact a trial court’s ability to impose
       consecutive sentences.” CR-25 Appellant’s Br. at 4 n.2. As such Bailey stated, “Warren has no constitutional
       challenge to the trial court’s order that his sentence for Count II be served consecutive to-his sentence for
       Count I.” Id. (citing Smylie, 823 N.E.2d at 686). While this statement may have waived any complaints on
       appeal that the sentences should not run consecutively, the State does not assert that the issue has been
       waived. Therefore, we address this issue.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020                    Page 31 of 36
       circumstance. On balance, both trial courts found that the aggravating

       circumstances outweighed the mitigating circumstances.


[44]   Here, the only possible question regarding the propriety of the consecutive

       sentences is whether or not there were sufficient aggravating circumstances to

       support the decision to run the sentences consecutively. As we stated above,

       the trial judge initially found three aggravators at the sentencing phase: (1)

       Warren violated his position of trust with J.R.; (2) at least one incident occurred

       when J.R.’s minor sister was present; and (3) Warren violated a no contact

       order. Warren I, at *2. While the second and third aggravators “cannot support

       an enhanced sentence in the absence of a jury finding, [they] can be used to

       support the decision to impose consecutive sentences inasmuch as findings to

       support consecutive sentences can be made by the court.” Bryant v. State, 841

       N.E.2d 1154, 1157 (Ind. 2006) (citing Smylie, 823 N.E.2d at 686). Here, there

       were sufficient aggravating factors to enhance Warren’s sentences and to run

       the sentences for two of the three Class A felonies consecutively. Koselke’s

       failure to raise the issue that there was insufficient explanation for running the

       sentences consecutively, if error, did not prejudice Warren.


                    IV. Resentencing after Post-Conviction Relief
[45]   Finally, Warren contends that the post-conviction court abused its discretion

       when it did not remand the case for resentencing after vacating the convictions

       and sentences for the two Class D felonies. Appellant’s Br. at 7. He maintains

       that, once the post-conviction court vacated those two counts, it “was required


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 32 of 36
       to fashion an appropriate remedy.” Id. at 48. Warren cites to our Supreme

       Court’s reasoning in Angleton v. State, saying:


               A sentence supported by permissible grounds sufficient to
               persuade the reviewing court that the original sentencing decision
               would have been the same had the trial court not relied on the
               impermissible factor should be affirmed. When the appellate
               court cannot reach that conclusion with confidence, it should
               remand for a new sentencing or revise the sentence.


       Id. at 47 (citing Angleton v. State, 686 N.E.2d 803, 815 (Ind. 1997)).


[46]   Citing to our court’s decision in Sanjari v. State, 981 N.E.2d 578, 583 (Ind. Ct.

       App. 2013), trans. denied, Warren maintains that remand was required here

       because “a trial court is likely to view individual sentences in a multi-count

       proceeding as part of an overall plan, a plan that can be overthrown if one or

       more of the convictions is reversed or reduced in degree.” Appellant’s Reply Br.

       at 28. Noting that the two Class D felony convictions were factors in the trial

       court’s original sentencing decision, Warren argues, “[T]he post-conviction

       court should have ordered a new sentencing hearing if it could not conclude

       with confidence that the trial court’s original sentencing decision would have

       been the same if Warren had only been sentenced on the remaining three

       counts.” Appellant’s Br. at 48 (citing Angleton, 686 N.E.2d 815). As Warren

       notes, the post-conviction court did not make any findings or conclusions

       pertinent to the question of whether Warren’s aggregate sentence of seventy

       years would have been the same “had he only been sentenced on his remaining

       convictions.” Id.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 33 of 36
[47]   On his prior remand for resentencing, Warren offered as mitigating

       circumstances that he had no criminal history, was likely to respond well to

       short-term imprisonment and to take from prison the skills that “would allow

       him to not reoffend,” had been diagnosed with PTSD after serving in the

       military, had been molested as a child; and was on G.P.S. monitoring for two

       years without offending. CR-89 Tr. Vol. I at 14-15. Warren also stated that,

       while in prison, he had completed various courses, “had no conduct reports,”

       was in an apprenticeship program, attending church, and played and helped

       coach softball. Id. at 6. Explaining its reasons, the trial court rejected most of

       Warren’s claims of mitigating circumstances but found that his lack of a prior

       criminal history was a mitigating factor. Id. at 18.


[48]   The trial court found as an aggravating circumstance that Warren was in a

       position of trust with J.R. and had violated that trust. Id. at 19. Balancing the

       aggravating circumstance against the mitigating circumstance, the trial court

       found that the aggravating factor outweighed the mitigating factor. Id.

       Reiterating that Warren was a father figure to J.R., the trial court sentenced

       him to thirty years aggravated by five years for a total of thirty-five years for

       each of the convictions for Class A felony child molesting. Id. The trial court

       stated that Warren’s “violation of a position of trust to the victim justifie[d]

       consecutive sentencing and r[an] the sentence in Count [II] consecutive to the

       sentence in Count [I] for a total of seventy years. Id. The trial court ordered the

       thirty-five-year sentence for Count [III] to run concurrent with the seventy-year

       sentence. Id. The trial court also ordered Warren to serve three years for each


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 34 of 36
       of the Class D felonies and ordered those sentences to run concurrent with each

       other and with the seventy-year sentence. Id.


[49]   While it is true that a trial court may view individual sentences in a multi-count

       proceeding as part of an overall plan, a plan that can be overthrown if one or

       more of the convictions is reversed or reduced in degree, that reasoning is not

       applicable in the instant case. Here, the trial court viewed the sentencing for the

       Class A felony counts as completely distinct from the sentencing for the Class D

       felony counts. At the initial sentencing hearing, the trial court ordered Warren

       to serve an aggregate sentence of eighty years—forty years for each of three

       Class A felonies, with two of those sentences running consecutive to each other

       and the remaining sentences, including three years for each of the Class D

       felonies, running concurrently. On remand for resentencing, the trial court

       ordered an aggregate sentence of seventy years by reducing the Class A felony

       sentences to thirty-five years each but again sentenced Warren to three years for

       each of the Class D felony convictions and ran those sentences plus the

       remaining Class A felony sentence concurrent with the sentence of seventy

       years. When given the opportunity on resentencing to change the sentences for

       the Class D felony convictions, the trial court ordered Warren to serve the exact

       same three-year sentences concurrently. Unlike the court in Sanjari, here, we

       are persuaded that the seventy-year aggregate sentence would have been the

       same even had the trial court not considered the impermissible convictions for

       Class D felony child solicitation. The post-conviction court did not abuse its




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 35 of 36
       discretion when it chose not to remand for resentencing and, instead, ordered

       Warren to serve the aggregate seventy-year sentence.


[50]   Here, there was no ineffective assistance of trial counsel and no ineffective

       assistance of appellate counsel on either direct appeal or on appeal following

       resentencing. Furthermore, the post-conviction court did not abuse its

       discretion when it affirmed Warren’s sentence, instead of remanding it for

       resentencing


[51]   Affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020   Page 36 of 36
