MEMORANDUM DECISION                                                    FILED
                                                                  Jun 30 2016, 7:18 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                       CLERK
this Memorandum Decision shall not be                              Indiana Supreme Court
                                                                      Court of Appeals
regarded as precedent or cited before any                               and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Terry Fennessee, Pro-Se                                  Gregory F. Zoeller
Bunker Hill, Indiana                                     Attorney General of Indiana

                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Terry Fennessee,                                         June 30, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         71A04-1503-PC-134
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jane Woodward
Appellee-Respondent.                                     Miller, Judge
                                                         Trial Court Cause No.
                                                         71D01-1003-PC-17



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A04-1503-PC-134 | June 30, 2016        Page 1 of 9
                                               Case Summary
[1]   Pro-se Appellant-Petitioner Terry Fennessee (“Fennessee”) appeals the denial

      of his petition for post-conviction relief, which challenged his conviction for

      Attempted Murder.1 We affirm.



                                                        Issues
[2]   Fennessee presents two issues for review:

                 I.       Whether judicial bias denied him a fair post-conviction
                          proceeding;2 and


                 II.      Whether he was denied the effective assistance of trial and
                          appellate counsel.


                                Facts and Procedural History
[3]   On direct appeal, a panel of this Court recited the relevant facts as follows:




      1
          Ind. Code §§ 35-41-5-1, 35-42-1-1.
      2
        To the extent that Fennessee also claims he was denied a fair hearing by an impartial judge at his trial, we
      do not address this contention, which could have been raised on direct appeal. The post-conviction rules
      contemplate a narrow remedy for subsequent collateral challenges to convictions. Reed v. State, 856 N.E.2d
      1189, 1194 (Ind. 2006). The purpose of a petition for post-conviction relief is to provide petitioners the
      opportunity to raise issues not known or available at the time of the original trial or direct appeal. Stephenson
      v. State, 864 N.E.2d 1022, 1028 (Ind. 2007). If an issue was known and available but not raised on direct
      appeal, the issue is procedurally foreclosed. Id. If an issue was raised and decided on direct appeal, it is res
      judicata. Id. Moreover, collateral challenges to convictions must be based upon grounds enumerated in the
      post-conviction rule. Shanabarger v. State, 846 N.E.2d 702, 707 (Ind. Ct. App. 2006), trans. denied; see also
      Post-Conviction Rule 1(1). To the extent that Fennessee attempts to raise free-standing issues arising from
      his trial, they are not properly addressed through post-conviction proceedings. Bunch v. State, 778 N.E.2d
      1285, 1289 (Ind. 2002).

      Court of Appeals of Indiana | Memorandum Decision 71A04-1503-PC-134 | June 30, 2016                   Page 2 of 9
               Fennessee married Tasha Townsend in 2002, and, in early 2007,
               Townsend filed for divorce. In March 2007, Townsend obtained
               an ex parte protective order against Fennessee, which barred him
               from Townsend’s residence. Fennessee was not personally
               served with the protective order, but a copy of the order was left
               at his residence.


               On April 15, 2007, Timothy Watson, who has a fourteen-year-
               old daughter with Townsend, was visiting Townsend and their
               daughter at Townsend’s apartment. Watson’s two other children
               and a young relative accompanied him. At approximately 10:00
               p.m., Townsend was walking Watson and the children out of her
               apartment building when they found Fennessee standing outside.
               Townsend reminded Fennessee about the protective order, but he
               did not leave. Watson walked toward his car to try to leave, but
               Fennessee kept talking to Watson, asking him whether he had
               been “messing around” with Townsend. Watson said no, and he
               turned his back to Fennessee to leave. Fennessee then shot
               Watson several times in the back. After that, Fennessee walked
               over to Watson and shot him in the back of his head. Watson
               survived his injuries.


               The State charged Fennessee with attempted murder, and a jury
               found him guilty as charged. The trial court entered judgment
               accordingly and sentenced Fennessee to forty years.


      Fennessee v. State, No. 71A03-0903-CR-97, slip op. at 1 (Ind. Ct. App. June 30,

      2009).


[4]   On direct appeal, Fennessee challenged the admission into evidence of the

      protective order against him, and alleged that the trial court had abused its

      discretion in permitting the State to question him regarding prior threats against

      a witness. See id. Fennessee’s conviction was affirmed. Id.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1503-PC-134 | June 30, 2016   Page 3 of 9
[5]   On March 15, 2010, Fennessee filed a petition for post-conviction relief, which

      was later amended. On August 22, 2014, and on January 9, 2015, the post-

      conviction court conducted evidentiary hearings. On February 25, 2015, the

      post-conviction court issued its findings of fact, conclusions of law, and order

      denying Fennessee post-conviction relief. He now appeals.



                                 Discussion and Decision
                                        Standard of Review
[6]   Post-conviction proceedings are not “super appeals”; rather, they afford

      petitioners a limited opportunity to raise issues that were unavailable or

      unknown at trial and on direct appeal. Wilkes v. State, 984 N.E.2d 1236, 1240

      (Ind. 2013). Post-conviction proceedings are civil in nature, and petitioners

      bear the burden of proving their grounds for relief by a preponderance of the

      evidence. Id. We accept the post-conviction court’s findings of fact unless they

      are clearly erroneous, but we do not defer to its conclusions of law. State v.

      Hollin, 970 N.E.2d 147, 151 (Ind. 2012). We may not reweigh the evidence or

      assess the credibility of the witnesses. Id. at 150.


                                    Procedural Due Process
[7]   Fennessee contends that the post-conviction court exhibited “plain and overt”

      bias against him, such that he was denied due process of law, specifically, a fair

      proceeding before a neutral fact-finder. Appellant’s Br. at 4. According to

      Fennessee, the post-conviction court knowingly issued false findings of fact in


      Court of Appeals of Indiana | Memorandum Decision 71A04-1503-PC-134 | June 30, 2016   Page 4 of 9
      the post-conviction order and subsequently hindered Fennessee’s appeal by

      claiming that his Notice of Appeal was untimely.


[8]   In effect, Fennessee argues that the post-conviction judge demonstrated her bias

      in the post-conviction proceedings because she had entered adverse rulings at

      trial, and then she entered factual findings contrary to Fennessee’s post-

      conviction evidence or legal argument. Yet an adverse ruling is not sufficient to

      show bias or prejudice. Flowers v. State, 738 N.E.2d 1051, 1060 n.4 (Ind. 2000).

      Instead, a party “must show that the trial judge’s action or demeanor crossed

      the barrier of impartiality and prejudiced” his case. Id. No such showing has

      been made in this case.


[9]   Fennessee’s claim that the post-conviction court hindered his appeal arises from

      the initial finding by the post-conviction judge that Fennessee’s Notice of

      Appeal was untimely, four days outside the thirty-day limit. Fennessee filed a

      motion to reinstate his Notice of Appeal, requesting application of the prison

      mailbox rule. The motion was not granted and, with counsel’s assistance,

      Fennessee sought and obtained an order from this Court. Although there may

      have been some initial confusion, Fennessee’s Notice of Appeal was ultimately

      accepted and his appeal was perfected.3 Thus, he was not denied his right to




      3
        On November 20, 2015, this Court issued an order clarifying that Fennessee had thirty days from February
      25, 2015, or until March 27, 2015, to file his Notice of Appeal. (App. at 64.) He had reportedly given the
      Notice of Appeal to prison officials on March 23, 2015. The certificate of service was dated March 19, 2015.
      The Clerk of the Court filed the Notice of Appeal on March 27, 2015. Finding any of those dates to be
      timely, this Court granted, in part, Fennessee’s “Verified Motion to Reinstate Notice of Appeal as Timely
      Filed, Pursuant to Prison Mailbox Rule.” (App. at 64.)

      Court of Appeals of Indiana | Memorandum Decision 71A04-1503-PC-134 | June 30, 2016              Page 5 of 9
       appeal due to any mistake or other conduct on the part of the post-conviction

       judge. Moreover, the adverse post-conviction judgment is not evidence of bias

       on the part of the post-conviction court.


[10]   Fennessee has not demonstrated that he was denied due process in the post-

       conviction proceedings.


                                  Assistance of Trial Counsel
[11]   Fennessee claims that his trial counsel was ineffective for failing to more

       vigorously pursue Fennessee’s defense of self-defense. According to Fennessee,

       trial counsel should have obtained more accurate documents to evidence

       Watson’s violent past and should have elicited additional testimony from

       Fennessee. Specifically, Fennessee claims that his trial attorney should have

       elicited testimony from Fennessee to the effect that Watson had threatened him

       by saying: “Just got out a couple of weeks ago for shooting a Bitch-ass N-----

       like you.” Appellant’s Br. at 19.


[12]   We evaluate Sixth Amendment claims of ineffective assistance of counsel under

       the two-part test announced in Strickland v. Washington, 466 U.S. 668, 698

       (1984). To succeed on a claim of ineffective assistance of counsel, a petitioner

       must show not only that his trial counsel’s representation fell below an objective

       standard of reasonableness, but also that counsel’s errors were so serious as to

       deprive him of a fair trial because of a reasonable probability that, but for

       counsel’s unprofessional errors, the result would have been different. Stevens v.

       State, 770 N.E.2d 739, 746 (Ind. 2002), cert. denied. A reasonable probability is

       Court of Appeals of Indiana | Memorandum Decision 71A04-1503-PC-134 | June 30, 2016   Page 6 of 9
       a probability sufficient to undermine confidence in the outcome. Id. There is a

       strong presumption that counsel rendered adequate assistance and made all

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


[13]   A valid claim of self-defense is a legal justification for an act that is otherwise

       defined as criminal. Pinkston v. State, 821 N.E.2d 830, 842 (Ind. Ct. App. 2004).

       A self-defense claim is established upon showing: that the actor was in a place

       where he had a right to be, he did not provoke, instigate, or participate willingly

       in the violence, and he had a reasonable fear of death or great bodily harm.

       Hood v. State, 877 N.E.2d 492, 497 (Ind. Ct. App. 2007).


[14]   In furtherance of his claim of self-defense, Fennessee testified at trial that

       Watson was the bigger man, Watson had threatened to “f--- up” and to kill

       Fennessee, Watson had claimed that he could kill Fennessee and get away with

       it because of the protective order Fennessee’s wife had obtained, Watson had

       shot someone in the State of Tennessee, Watson had pushed a woman down in

       a dispute over a dog, federal marshals had raided Fennessee’s residence looking

       for Watson on drug and firearms charges, Watson was known to promote

       animal fighting, and he had committed “break-ins” and robberies. (Tr. at 422-

       494.)


[15]   The post-conviction court concluded that, had the jury been told of one

       additional threat, the incremental information would not likely have produced a

       different outcome. We agree with this assessment of the evidence. Moreover,

       had the jury been convinced that Fennessee reasonably feared Watson, this is


       Court of Appeals of Indiana | Memorandum Decision 71A04-1503-PC-134 | June 30, 2016   Page 7 of 9
       not the end of the matter. Fennessee was in a place where he had no right to

       be. He was prohibited by a protective order from being at his wife’s residence.

       Moreover, he fired five shots into Watson, one to Watson’s head as he lay on

       the sidewalk. It is well-settled that firing multiple shots undercuts a claim of

       self-defense. Randolph v. State, 755 N.E.2d 572, 575 (Ind. 2001). Trial counsel

       was not ineffective in failing to produce additional evidence of Watson’s

       conduct or criminal history.


[16]   Fennessee also claims that his trial counsel was ineffective for failing to object

       when the trial court modified a tendered instruction on aggravated battery by

       changing the phrase “must find the defendant guilty” to “shall find the

       defendant guilty.” (Tr. at 530.) Fennessee does not provide relevant authority

       and cogent argument to support the claim that the instruction was erroneous.

       However, the two prongs of the Strickland are separate and independent

       inquiries. 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. Here, assuming that an incorrect instruction on

       aggravated battery was given, Fennessee suffered no prejudice. He was not

       convicted of aggravated battery.


                              Assistance of Appellate Counsel
[17]   A defendant is entitled to the effective assistance of appellate counsel. Stevens,

       770 N.E.2d at 760. The two-pronged standard for evaluating the assistance of

       trial counsel first enunciated in Strickland is applicable to appellate counsel


       Court of Appeals of Indiana | Memorandum Decision 71A04-1503-PC-134 | June 30, 2016   Page 8 of 9
       ineffective assistance claims. Bieghler v. State, 690 N.E.2d 188, 192 (Ind. 1997).

       There are three basic categories of alleged appellate ineffectiveness: (1) denying

       access to an appeal, (2) waiver of issues, and (3) failure to present issues well.

       Id. at 193-95. The second category is implicated, as Fennessee argues that his

       appellate counsel failed to raise an obvious issue: the allegedly erroneous

       aggravated battery instruction. As previously observed, Fennessee was not

       convicted of aggravated battery. Accordingly, there was no reason for appellate

       counsel to raise an issue regarding an aggravated battery instruction.



                                               Conclusion
[18]   Fennessee has not demonstrated that he was denied a fair post-conviction

       proceeding. Nor has he demonstrated that he was denied the effective

       assistance of trial or appellate counsel.


[19]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1503-PC-134 | June 30, 2016   Page 9 of 9
