MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                           Nov 16 2018, 9:04 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
Rickie B. Gilliam                                       Curtis T. Hill, Jr.
Carlisle, Indiana                                       Attorney General of Indiana
                                                        George P. Sherman
                                                        Supervising Deputy
                                                        Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Rickie Bill Gilliam,                                    November 16, 2018
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        79A02-1706-PC-1390
        v.                                              Appeal from the Tippecanoe
                                                        Superior Court
State of Indiana,                                       The Honorable Steven P. Meyer,
Appellee-Respondent.                                    Judge
                                                        Trial Court Cause No.
                                                        79D02-1406-PC-4



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018    Page 1 of 21
                               Case Summary and Issues
[1]   Following a jury trial, Rickie Gilliam was convicted of two counts of attempted

      murder, both Class A felonies; being a serious violent felon in possession of a

      firearm, a Class B felony; attempted battery, a Class C felony; and maintaining

      a common nuisance, a Class D felony. The trial court sentenced Gilliam to

      sixty-three years in the Indiana Department of Correction. We affirmed

      Gilliam’s convictions on direct appeal. Gilliam v. State, No. 79A02-1206-CR-

      482 (Ind. Ct. App. Apr. 1, 2013), trans. denied. Thereafter, Gilliam filed a

      petition for post-conviction relief alleging ineffective assistance of trial counsel

      which was denied by the post-conviction court. Gilliam, pro se, now appeals

      the denial of post-conviction relief, raising two issues for our review which we

      restate as (1) whether the post-conviction court erred in denying Gilliam’s

      petition for post-conviction relief, and (2) whether Gilliam received ineffective

      assistance of post-conviction counsel. Concluding the post-conviction court did

      not err and Gilliam did not receive ineffective assistance of post-conviction

      counsel, we affirm.



                            Facts and Procedural History
[2]   We summarized the facts and procedural history of this case in Gilliam’s direct

      appeal:


              Heather Short and Gilliam were involved in a romantic
              relationship for approximately three years and lived together in
              Lafayette with their three-year-old son. In December 2010, the
              couple argued and Gilliam pulled out a gun. Gilliam stated that
      Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018   Page 2 of 21
        he would “kill [Heather] with the gun if [she] didn’t knock [her]
        sh*t off.” Heather was scared and would not leave the couple’s
        bedroom. At some point, Heather sent a text message to her
        brother, Jeremiah Short, who came to the house and went to
        Heather’s bedroom window. Jeremiah talked to Heather and
        wanted her to leave with him; however, Heather declined.


        On January 8, 2011, Heather and Gilliam ended their
        relationship. Heather went to Jeremiah’s to stay, and at some
        point, Heather and Jonathan Beard, Jeremiah’s roommate, began
        a sexual relationship. On January 14, 2011, Heather drove Beard
        to his job at Penguin Liquors. Heather asked Beard if he knew of
        any place where she could stay that night because she “was
        trying to avoid her son’s father.” Beard offered to rent her a
        motel room for the weekend. After Beard’s shift ended at 2:00
        a.m., Heather picked him up and drove to an Economy Inn,
        where Beard paid for a room.


        After pulling up to one of the rooms, Heather and Beard noticed
        that the number on the door was not the same room that he had
        rented. Heather put the car in reverse, but at that moment,
        Gilliam drove up in a red vehicle. Gilliam exited his car and
        started shooting at Heather and Beard with a handgun.
        Numerous rounds hit the body of the vehicle and the windows.
        Beard hunched down to avoid being shot and Heather
        accelerated. Gilliam fired another shot that struck Heather’s
        windshield.


        After Heather drove away, she contacted 911 and reported that
        Gilliam had tried to kill her and Beard. Shortly after the call,
        several police officers went to Gilliam’s residence and noticed a
        red Chevy Impala parked in the driveway, but the license plate
        on the vehicle was registered to Gilliam’s red Pontiac Grand
        Prix. The Impala was slightly covered in snow, and the engine
        was cold.


Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018   Page 3 of 21
        The officers set up a perimeter around the house and although a
        television was on, no one was observed entering or exiting the
        house. Later that morning, a SWAT team searched the house
        and confirmed that no one was inside. The officers discovered
        twelve rounds of .9mm Ruger ammunition, as well as several
        bags of marijuana, marijuana cigarettes, rolling papers, and
        digital scales. Several .25 caliber shell casings were found in the
        motel parking lot where the shooting occurred.


        On the day of the shooting, Heather and Beard positively
        identified Gilliam from a photo array. Later that week,
        Jeremiah, who was Gilliam’s friend, observed Gilliam driving a
        red Pontiac Grand Prix. On February 14, 2011, the State
        charged Gilliam with the following offenses:


        Count I—Attempted Murder, a class A felony
        Count II—Attempted Murder, a class A felony
        Count III—Attempted Aggravated Battery, a class B felony
        Count IV—Attempted Aggravated Battery, a class B felony
        Count V—Attempted Battery, a class C felony
        Count VI—Attempted Battery, a class C felony
        Count VII—Criminal Recklessness, a class C felony
        Count VIII—Carrying a Handgun Without a License, a class A
        misdemeanor
        Count IX—Pointing a Firearm, a class D felony
        Count X—Pointing a Firearm, a class D felony
        Count XI—Dealing in Marijuana, a class D felony
        Count XII—Possession of Marijuana, a class D felony,
        Count XIII—Maintaining a Common Nuisance, a class D felony
        Count XIV—Serious Violent Felon in Possession of a Firearm, a
        class B felony


        On December 29, 2011, the State filed a notice under Indiana
        Evidence Rule 404(b), indicating that the State intended to offer
        evidence of the previous incident in December 2010 involving
        Gilliam’s threat to kill Heather with a handgun.
Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018   Page 4 of 21
        Following a hearing on December 30, 2011, the trial court ruled
        that evidence of the earlier incident would be admissible because
        it was relevant to show motive, intent, identity, and absence of
        mistake and accident. The trial court also noted that it would
        give a limiting instruction to the jury.


        On April 9, 2012, Beard spoke with Officer Michael Barthelemy
        and again identified Gilliam as the shooter. Beard told Officer
        Barthelemy that Gilliam was approximately five feet away when
        the shooting occurred.


        Gilliam’s jury trial commenced on April 16, 2012. At trial,
        Heather’s account of the events changed in several respects. For
        instance, Heather had previously told police that Gilliam had
        been dealing in marijuana. However, at trial, she claimed that
        she did not remember making that statement. When asked about
        the fact that Gilliam had threatened to kill her, Heather claimed
        that she “guessed” that was accurate. Similarly, although
        Heather had previously stated that she was afraid of Gilliam
        when he threatened to kill her, she claimed at trial that she was
        not really scared. Finally, although Heather had previously
        reported to the police that she had seen Gilliam after the first
        gunshot, she claimed at trial that she assumed it was him because
        she had seen the red car.


        Laura Berry-Bermann, the Executive Director for the Indiana
        Coalition Against Domestic Violence, also testified at trial.
        Berry-Bermann testified that it is not unusual for a woman in
        circumstances similar to those experienced by Heather to
        subsequently recant or modify a prior identification of the person
        who committed the charged offense. Berry-Bermann stated that
        there are many possible explanations for this phenomenon,
        including a fear of retaliation and future violence, fear of the loss
        of income and support for a child that they may share in
        common, and loyalty to the father of their child.


Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018   Page 5 of 21
              Following the presentation of evidence, Gilliam was found guilty
              as charged on all counts. The trial court conducted a bench trial
              on the serious violent felon charge, and Gilliam was also found
              guilty on that count.


              At the sentencing hearing, the trial court entered judgments of
              conviction on Counts I, II, XI, XIII and XIV. Gilliam was
              sentenced to an aggregate term of sixty-three years of
              incarceration[.]


      Id. at *1-3 (citations omitted).


[3]   Gilliam raised three issues on direct appeal: (1) whether trial court erred in

      admitting evidence of a prior act of violence against one of the victims in

      violation of Indiana Evidence Rule 404(b); (2) whether the evidence was

      sufficient to support the convictions because the victims did not unequivocally

      identify him as the shooter; and (3) whether his aggregate sixty-three-year

      sentence was inappropriate when considering the nature of the offenses and his

      character. Id. at *1. A panel of this court affirmed in all respects. Id. at *6.


[4]   Gilliam sought post-conviction relief alleging ineffective assistance of trial

      counsel. Following an evidentiary hearing in which post-conviction counsel

      declined to call Gilliam’s trial counsel to testify as a witness, the post-conviction

      court issued findings of fact and conclusions of law denying his petition on June




      Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018   Page 6 of 21
      23, 2016.1 Thereafter, Gilliam timely filed a motion to correct error. Following

      a hearing, the post-conviction court denied Gilliam’s motion to correct error on

      May 26, 2017. Gilliam now appeals.



                                   Discussion and Decision
                                         I. Standard of Review
[5]   Post-conviction proceedings are not an opportunity for a super-appeal; rather,

      they create a narrow remedy for subsequent collateral challenges to convictions

      that must be based on grounds enumerated in the post-conviction rules.

      Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839

      (2002). A claim of ineffective assistance of counsel is properly presented in a

      post-conviction proceeding if the claim is not presented on direct appeal. Id.

      Post-conviction proceedings are civil in nature and a petitioner must therefore

      establish his claims by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1(5).


[6]   On appeal from the denial of post-conviction relief, a petitioner faces a

      “rigorous standard of review.” Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).

      In reviewing the judgment of a post-conviction court, we do not reweigh the




      1
       We commend the post-conviction court for the clarity and thoroughness of its factual findings which have
      aided in our review. However, due to an error with the electronic noticing system, the parties were not
      notified of the post-conviction court’s decision until February 3, 2017. Therefore, the post-conviction court
      directed the clerk to reissue the court’s prior decision and provided that any motion to correct error or notice
      of appeal would be due within thirty days.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018            Page 7 of 21
      evidence or reassess witness credibility and we consider only the evidence and

      reasonable inferences supporting the judgment. Hall v. State, 849 N.E.2d 466,

      468-69 (Ind. 2006). We will affirm the post-conviction court’s denial of post-

      conviction relief unless the evidence leads “unerringly and unmistakably to a

      decision opposite that reached by the post-conviction court.” McCary v. State,

      761 N.E.2d 389, 391 (Ind. 2002).


[7]   Furthermore, we emphasize that pro se litigants without legal training are held

      to the same legal standards as licensed attorneys. Basic v. Amouri, 58 N.E.3d

      980, 983 (Ind. Ct. App. 2016). Pro se litigants must adhere to the rules of

      procedure and must be prepared to accept the consequences of their failure to

      do so, including waiver for failure to present cogent argument on appeal. Id. at

      983-84. An appellate brief should be prepared so that each judge, considering

      the brief alone and independent of the transcript, can intelligently consider each

      question presented. Pluard ex rel. Pluard v. Patients Comp. Fund, 705 N.E.2d

      1035, 1038 (Ind. Ct. App. 1999), trans. denied. We “will not search the record to

      find a basis for a party’s argument” nor will we “search the authorities cited by

      a party in order to find legal support for its position.” Thomas v. State, 965

      N.E.2d 70, 77 n.2 (Ind. Ct. App. 2012), trans. denied. We must not become an

      “advocate for a party, or address arguments that are inappropriate or too poorly

      developed or expressed to be understood.” Basic, 58 N.E.3d at 984.


[8]   In the course of his fourteen-page Brief of Appellant, Gilliam raises numerous

      issues for our review, only two of which are formally framed as questions

      presented. Almost all of these issues, however, are “too poorly developed or

      Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018   Page 8 of 21
       expressed to be understood.” Id. Although we endeavor to discuss several

       issues despite their waiver, we deem any and all remaining issues not discussed

       herein to be waived. Id. at 983-84.


                     II. Ineffective Assistance of Trial Counsel
[9]    Gilliam first claims the trial court erred in denying his petition for post-

       conviction relief on his claim that he received ineffective assistance of trial

       counsel. We disagree.


[10]   We review claims of ineffective assistance of trial counsel under the two-prong

       test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a

       claim of ineffective assistance of counsel, the petitioner must show his trial

       counsel’s performance was deficient and the lack of reasonable representation

       prejudiced him. Id. at 687. To satisfy the first prong, the petitioner must show

       counsel’s representation fell below an objective standard of reasonableness and

       counsel committed errors so serious petitioner did not have the “counsel”

       guaranteed by the Sixth Amendment of the United States Constitution. Garrett

       v. State, 992 N.E.2d 710, 718-19 (Ind. 2013). To satisfy the second prong, the

       petitioner must show a reasonable probability that, but for counsel’s errors, the

       result of the proceeding would have been different. Id. at 719. “A reasonable

       probability is a probability sufficient to undermine confidence in the outcome.”

       Strickland, 466 U.S. at 694. These two prongs are separate and independent

       inquiries. Manzano v. State, 12 N.E.3d 321, 326 (Ind. Ct. App. 2014), trans.

       denied, cert. denied, 135 S.Ct. 2376 (2015). Therefore, “if it is easier to dispose of


       Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018   Page 9 of 21
       an ineffectiveness claim on one of the grounds instead of the other, that course

       should be followed.” Talley v. State, 736 N.E.2d 766, 769 (Ind. Ct. App. 2000).


[11]   Notably, we recognize a strong presumption counsel rendered adequate legal

       assistance and afford trial counsel “considerable discretion in choosing strategy

       and tactics, and we will accord those decisions deference.” Timberlake, 753

       N.E.2d at 603. Therefore, in order to overcome this strong presumption, a

       petitioner must offer “strong and convincing evidence” to the contrary. Smith v.

       State, 822 N.E.2d 193, 202 (Ind. Ct. App. 2005), trans. denied.


                                  A. Laura Bermann’s Testimony
[12]   Gilliam alleges his trial counsel was ineffective for failing to object to Laura

       Bermann’s testimony on two different bases. In order to prove ineffective

       assistance of counsel due to the failure to object, Gilliam must prove that an

       objection would have been sustained if made and that he was prejudiced by the

       failure. Timberlake v. State, 690 N.E.2d 243, 259 (Ind. 1997), cert. denied, 525

       U.S. 1073 (1999).


[13]   The post-conviction court found:


               [Heather] was asked at trial about the threat Gilliam made to her
               a month prior where Gilliam pulled a gun on her, threatened to
               kill her, and [Heather] texted her brother. [Heather] claimed she
               did not recall why Gilliam pulled a gun on her or what Gilliam
               said to her at the time. The State of Indiana called Laura
               Bermann, Executive Director of Indiana Coalition Against
               Domestic Violence to testify. The State posed a hypothetical
               question to Ms. Bermann which consisted of facts similar to

       Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018   Page 10 of 21
               [Heather’s] situation with Gilliam and asked whether, based
               upon her training and experience, it would be unusual for a
               victim to later recant or take back what she said regarding the
               identification of the person the night of the shooting. Gilliam’s
               trial counsel initially objected to the hypothetical because it failed
               to include all relevant factors of the relationship. The State re-
               worded the hypothetical question to include additional facts.
               Ms. Bermann then stated her opinion, without objection, that it
               would not be unusual for a woman who had gone through such
               an experience to later recant or take back what she said regarding
               the identification of the person the night of the shooting. [Trial
               Transcript at 227-30]. She explained there are several barriers for
               victims of domestic violence to break away from a relationship
               including: fear of retaliation; loss of income and support; loyalty;
               lack of independence; and belief a victim can change an
               individual’s behavior.


       Appellant’s Appendix, Volume II at 18.


[14]   First, Gilliam claims,


               A proper foundation was not laid for Ms. Bermann’s testimony
               pursuant to Indiana Rules of Evidence 403. Specifically, there
               was no evidence presented to demonstrate that [Heather] had
               previously been battered by Mr. Gilliam; as a result, her
               testimony was not probative to any issue in the case. However,
               Gilliam argues that Ms. Bermann’s testimony was highly
               prejudicial to Gilliam because the inference is that [Heather] was
               battered by Mr. Gilliam, which caused her to recant. There was
               no evidence presented to support Gilliam battering [Heather].


       Brief of Appellant at 12 (citation omitted).


[15]   Gilliam’s argument, however, is left unsupported by cogent reasoning or

       adequate citation to authority. “Indiana Appellate Rule 46(A)(8) provides that
       Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018   Page 11 of 21
       the argument section of the appellant’s brief must ‘contain the contentions of

       the appellant on the issues presented, supported by cogent reasoning,’ along

       with citations to the authorities, statutes, and parts of the record relied upon,

       and a clear showing of how the issues and contentions in support thereof relate

       to the particular facts under review.” D.H. by A.M.J. v. Whipple, 103 N.E.3d

       1119, 1126 (Ind. Ct. App. 2018). Gilliam has therefore waived this issue for our

       review. Id.


[16]   Waiver notwithstanding, the hypothetical posed to Bermann was based on the

       fact that Gilliam had previously threatened Heather with a gun—not that

       Heather had previously been battered—and the State had presented evidence to

       support this fact. See Trial Tr. at 147. In any event, the record reveals trial

       counsel was prepared for the State’s line of questioning and had researched

       caselaw on the issue. Indeed, after the State posed the hypothetical, trial

       counsel requested a sidebar conference and argued the hypothetical had omitted

       key facts. The trial court sustained trial counsel’s objection and the State

       reframed the hypothetical accordingly. Therefore, to the extent we can discern

       Gilliam’s specific claim, he has failed to demonstrate deficient performance

       regarding this objection.


[17]   Next, Gilliam claims his trial counsel failed to object to Bermann’s testimony as

       inappropriate vouching testimony in violation of Indiana Evidence Rule 704(b).

       Rule 704(b) states: “Witnesses may not testify to opinions concerning intent,

       guilt, or innocence in a criminal case; the truth or falsity of allegations; whether

       a witness has testified truthfully; or legal conclusions.” However, expert

       Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018   Page 12 of 21
       testimony explaining the behavior of domestic violence victims which is not

       based upon personal knowledge does not constitute impermissible vouching.

       See Otte v. State, 967 N.E.2d 540, 548 (Ind. Ct. App. 2012), trans. denied; Iqbal v.

       State, 805 N.E.2d 401, 409-10 (Ind. Ct. App. 2004).


[18]   Here, it is uncontested that Bermann did not have personal knowledge of the

       case and she neither counseled nor met with Heather prior to her testimony.

       Trial Tr. at 222. Bermann expressed no opinion as to the truth of Heather’s

       statements and offered no testimony regarding those statements. Therefore,

       Bermann’s testimony was admissible pursuant to the well-established domestic

       violence exception to Rule 704(b).


[19]   Despite this, Gilliam argues Bermann’s testimony violated this court’s holding

       in Odom v. State, 711 N.E.2d 71 (Ind. Ct. App. 1999), trans. denied. Specifically,

       Gilliam argues:


               Ms. Bermann’s testimony also violated this court’s holding in
               [Odom] v. State, the State of Indiana used an expert witness to
               explain why a victim might recant. While the expert in [Odom]
               did not specifically mention battered woman syndrome (herein
               after “BWS”), the Indiana Court of Appeals ultimately
               determined that “because the expert’s testimony is similar to BWS
               testimony, we will determine the admissibility of such testimony as the
               admissibility of BWS, a woman must have experienced at least two
               violent incidents and thereafter remained in the relationship.” [Citing
               Odom, 711 N.E.2d at 72 n.2].


       Br. of Appellant at 12 (citation omitted; emphasis added). Gilliam presents the

       emphasized language as a direct quote from Odom—it is not. Instead, Gilliam

       Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018   Page 13 of 21
       combines language from two separate locations in the opinion and reorganizes

       them to support his argument that for Bermann’s testimony to have been

       admissible, the record must have established Heather suffered from at least two

       prior violent incidents. Whether an intentional misrepresentation or the result

       of honest confusion, Gilliam’s statement of the law is incorrect. 2


[20]   In Odom, the court cited People v. Christel, 537 N.W.2d 194, 200 (Mich. 1995),

       for the proposition that “[t]o be considered a battered woman, with regard to

       BWS, a woman must have experienced at least two violent incidents and

       thereafter remained in the relationship[,]” and then concluded, “we will

       determine the admissibility of [the expert’s] testimony as the admissibility of

       BWS and other pattern, profile and syndrome evidence are determined.”

       Odom, 711 N.E.2d at 72 n.2. However, the court’s comparison of domestic

       violence testimony to BWS was not, as Gilliam contends, to prescribe the

       factual basis required to present domestic violence testimony—i.e., that a

       “woman must have experienced at least two violent incidents and thereafter

       remained in the relationship[,]”—but rather to explain domestic violence

       testimony is admissible under Rule 704(b) similar to “other pattern, profile and

       syndrome evidence[.]” Id. Indeed, it is for this reason Odom held the domestic

       violence testimony, almost identical to that presented here, was admissible

       under Rule 704(b):




       2
        We reemphasize that pro se litigants are held to the same legal standards as licensed attorneys. Basic, 58
       N.E.3d at 983.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018         Page 14 of 21
               . . . [the expert] testified only that it would not be unusual for a
               woman, who had experienced a violent incident such as that
               charged, to recant a prior allegation regarding that incident and
               the reasons she might have done so. Further, there is no
               evidence that [the victim] had experienced a prior incident of
               abuse while she was in the relationship with [the defendant].


       Id.


[21]   Because Bermann’s testimony was admissible under Rule 704(b), Gilliam has

       failed to demonstrate his trial counsel provided deficient performance for not

       objecting thereto.


                               B. Testimony Regarding Marijuana
[22]   Gilliam next argues he received ineffective assistance in trial counsel’s failure to

       object to Heather’s testimony regarding Gilliam’s prior use—and potential

       dealing—of marijuana. On this issue, the post-conviction court found:


               At trial, the State asked [Heather]: “When you were living with
               the defendant was there any form of illegal drug use that went
               on?” She responded that “occasionally we would smoke pot
               together.” The State also asked her “were you aware that
               defendant was dealing marijuana as well?” She responded “No.”
               Trial counsel did not object to this line of questioning. The State
               then confronted [Heather] with a prior statement she made to
               police where she was asked: “If he’s dealing marijuana then I
               need you to tell me he’s dealing the marijuana? Was he?” The
               State then asked [Heather] “And you said ‘yeah.’ Is that
               accurate?” [Heather] responded “I don’t remember.”


       Appellant’s App., Vol. II at 20.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018   Page 15 of 21
[23]   Gilliam’s argument on this point is entirely devoid of cogent reasoning or

       citation to authority. In fact, Gilliam does not so much as specify which “rule

       of evidence” his trial counsel allowed the State to violate without objection. Br.

       of Appellant at 13. As such, we conclude Gilliam has waived this issue for our

       review. Whipple, 103 N.E.3d at 1126.


[24]   Waiver notwithstanding, we agree with the post-conviction court’s conclusion:


               . . . Gilliam was charged with possession of marijuana and
               dealing in marijuana that occurred on or about January 15, 2011.
               He was also charged with maintaining a common nuisance that
               occurred on or about January, 2011. [Heather] lived with
               Gilliam up to one week prior to the attack and the discovery by
               police of marijuana, scales, rolling papers, etc. in Gilliam’s
               home. [Heather]’s testimony did not address prior bad acts.
               Rather, it was evidence relating to the current charges against
               Gilliam. As such, it was relevant to the case and not subject to
               objection. Therefore, the court concludes that trial counsel’s
               failure to object to this line of questioning was not ineffective.


       Appellant’s App., Vol. II at 20-21.


[25]   Gilliam then argues that his trial counsel “failed to require the State to lay a

       proper foundation for the attempt to impeach the State’s own witness[.]” Br. of

       Appellant at 13. Again, we find this argument waived for failure to comply

       with Indiana Appellate Rule 46(A)(8). But, even if Gilliam was able to

       establish trial counsel’s performance was deficient in this regard, which he

       makes no effort to do, he would still be unable to demonstrate prejudice. As the

       post-conviction court concluded, “the State would have eventually been


       Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018   Page 16 of 21
       allowed to admit the details of [Heather’s] statement as a prior inconsistent

       statement once [Heather] responded she did not recall it.” Appellant’s App.,

       Vol. II at 21. Therefore, absent waiver, Gilliam would still fail to demonstrate

       resulting prejudice.


                                          C. Remaining Claims
[26]   Gilliam raises several additional claims, arguing “[t]rial counsel was ineffective

       for failing to object to the mischaracterized facts, unsupported testimony and

       testifying regard [sic] documents not admitted.” Br. of Appellant at 13. We

       conclude all of these remaining claims—save one—are waived for failure to

       comply with Indiana Appellate Rule 46(A)(8).


[27]   The only claim supported by citation to authority is Gilliam’s allegation that his

       trial counsel was ineffective in failing to object to Lieutenant Hayworth’s

       testimony that Heather had made a statement to him regarding Gilliam’s prior

       marijuana dealing. Specifically, Gilliam argues that because Heather “had

       already been impeached by her previous statement, . . . Lieutenant Hayworth’s

       testimony was cumulative because the statement was no longer inconsistent as

       [Heather] had already admitted to it.” Br. of Appellant at 14. Gilliam contends

       his trial counsel should have objected to the testimony and requested a

       corresponding limiting instruction.


[28]   Contrary to Gilliam’s contention, however, Heather did not confirm her

       statement when confronted by her prior inconsistent statement; rather, Heather



       Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018   Page 17 of 21
       stated “I don’t remember.” Trial Tr. at 148; see supra ¶ 22. The trial court

       concluded:


               Indiana Rules of Evidence provide that any party, including the
               party that called the witness, may attack the witness’s credibility.
               [Evid. R. 607]. The Rules further provide that extrinsic evidence
               of a witness’s prior inconsistent statement is admissible when a
               witness is given the opportunity to deny the statement. [Evid. R.
               613(b)].


               Here, [Heather] did not admit to making the statement but only
               stated that she did not remember making the statement. Per the
               Rules of Evidence, the State was allowed to bring forth extrinsic
               evidence through Lt. Hayworth that [Heather] indeed admitted
               that Gilliam dealt in marijuana as a prior inconsistent statement.
               Therefore, any objection trial counsel could have made to this
               testimony would not have been sustained and Gilliam cannot
               show how he was prejudiced by his counsel’s failure to object.


       Appellant’s App., Vol. II at 28.


[29]   On appeal, Gilliam simply reasserts his argument from his petition for post-

       conviction relief. Therefore, Gilliam has failed to demonstrate the evidence

       leads “unerringly and unmistakably to a decision opposite that reached by the

       post-conviction court[,]” and we must affirm the post-conviction court’s

       judgment. McCary, 761 N.E.2d at 391.


          III. Ineffective Assistance of Post-Conviction Counsel
[30]   Finally, Gilliam argues his post-conviction counsel rendered ineffective

       assistance by failing to “subpoena and/or secure Gilliam’s trial counsel’s


       Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018   Page 18 of 21
       testimony during the PCR-Hearing.” Br. of Appellant at 10. Once more, we

       disagree.


[31]   There is no federal or state constitutional right to counsel in post-conviction

       proceedings. Hill v. State, 960 N.E.2d 141, 145 (Ind. 2012).


               We therefore apply a lesser standard responsive more to the due
               course of law or due process of law principles which are at the
               heart of the civil post-conviction remedy. We adopt the standard
               that if counsel in fact appeared and represented the petitioner in a
               procedurally fair setting which resulted in a judgment of the
               court, it is not necessary to judge his performance by the rigorous
               standard set forth in [Strickland].


       Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989).


[32]   Since Baum, our supreme court has explained that post-conviction counsel must

       be more than a “warm body,” however. This standard occasionally requires a

       reviewing court to look to the actual representation of post-conviction counsel

       to determine whether “[c]ounsel, in essence, abandoned [their] client” by failing

       to present any evidence in support of their client’s claim. Waters v. State, 574

       N.E.2d 911, 911-12 (Ind. 1991) (holding post-conviction counsel rendered

       ineffective assistance where the post-conviction court ordered the case

       submitted on affidavits and the petitioner submitted his own inadequate

       affidavits without assistance from post-conviction counsel, thus “no actual legal

       representation occurred”). In two subsequent cases, Bahm v. State, 789 N.E.2d

       50, 61-62 (Ind. Ct. App. 2003), trans. denied, and Taylor v. State, 882 N.E.2d 777,

       783-84 (Ind. Ct. App. 2008), we held that the petitioner received ineffective

       Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018   Page 19 of 21
       assistance of post-conviction counsel where counsel failed to submit any

       evidence, particularly the trial transcript, in support of the petitioner’s claim of

       ineffective assistance of trial counsel.


[33]   Here, the record demonstrates that post-conviction counsel appeared and

       represented Gilliam, which resulted in a judgment of the post-conviction court

       now under review. Post-conviction counsel successfully admitted the record

       from Gilliam’s direct appeal and relied upon the trial transcript as evidence to

       support the claims he raised in Gilliam’s amended petition for post-conviction

       relief. Pursuant to Baum and its progeny, therefore, Gilliam received a

       procedurally fair post-conviction proceeding.


[34]   To the extent Gilliam argues his post-conviction counsel was ineffective for

       failing to present the testimony of his trial counsel, we view this argument as a

       claim of deficient performance by post-conviction counsel. However, as

       explained in Baum, deficient performance by post-conviction counsel is not a

       cognizable claim under the Sixth Amendment. Matheney v. State, 834 N.E.2d

       658, 663 (Ind. 2005). Put simply, the fact that post-conviction counsel chose to

       rely solely on the trial transcript to support his arguments without obtaining

       trial counsel’s testimony is not “abandonment” and did not deprive Gilliam of a

       procedurally fair post-conviction proceeding. Id.



                                               Conclusion


       Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018   Page 20 of 21
[35]   The post-conviction court did not err in concluding Gilliam is not entitled to

       relief on his claim that he received ineffective assistance of trial counsel and

       Gilliam similarly failed to demonstrate that he received ineffective assistance of

       post-conviction counsel. We therefore affirm the post-conviction court.


[36]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018   Page 21 of 21
