MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Dec 13 2019, 7:43 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.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
John Andrew Goodridge                                   Curtis T. Hill, Jr.
Evansville, Indiana                                     Attorney General of Indiana
                                                        Ian McLean
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Darryl Anderson,                                        December 13, 2019
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        49A02-1708-PC-1936
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Marc T.
Appellee-Respondent.                                    Rothenberg, Judge
                                                        The Honorable Amy J. Barbar,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        49G02-1411-PC-52287



Mathias, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1936 | December 13, 2019        Page 1 of 16
[1]   After his convictions for rape, criminal confinement, and battery were affirmed

      on direct appeal, Darryl Anderson (“Anderson”) filed a petition for post-

      conviction relief, which the Marion Superior Court denied. Anderson appeals

      and presents four issues, which we consolidate and restate as whether the post-

      conviction court clearly erred in determining that Anderson’s trial counsel was

      not ineffective for: (1) failing to present a Brady claim regarding evidence of the

      victim’s mental disability, (2) failing to object to the competency of the victim to

      testify based on her mental disability, and (3) failing to raise a double jeopardy

      claim at sentencing.


[2]   We affirm.


                                 Facts and Procedural History
[3]   The facts forming the basis of Anderson’s convictions were set forth by this

      court in Anderson’s direct appeal as follows:


              A.M., an adult with the mental and learning capacity of a sixth-
              grader, met Anderson in late 2009, when she lived in the city of
              Anderson. During the next four or five months, A.M. “hung out”
              with Anderson and occasionally had sex with him. In the spring
              of 2010, A.M. moved into her sister’s Indianapolis home. Soon
              thereafter, A.M. ended her relationship with Anderson and
              began dating someone else.


              On the night of May 10, 2010, A.M. was visiting a friend on the
              east side of Indianapolis when she telephoned Anderson to ask
              for a ride to her sister’s house on the west side. After picking up
              A.M., Anderson began asking her about her boyfriend and
              whether she had sex with him. When A.M. answered in the
              affirmative, Anderson struck A.M.’s head. He continued to hit
      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1936 | December 13, 2019   Page 2 of 16
        her, causing A.M. pain. Anderson told A.M. that she was “now
        in his territory” and that she was “his bitch[.]”


        Instead of taking A.M. to her sister’s house, Anderson stopped at
        an off-track betting (“OTB”) venue to pick up a friend, Michael
        Williams, and take him to work. Although Anderson left A.M.
        alone in the vehicle while he went inside the OTB, A.M. did not
        leave because Anderson “had already been hitting [her],” and she
        believed he “would have chased [her] and try [sic] to hit [her]
        some more.”


        Anderson told Williams that “he had some stuff to do on the
        west side in the morning, he didn’t feel like going back east” and
        asked if he could “just chill” at Williams’s apartment until the
        morning while Williams was at work. Anderson offered to pick
        up Williams when his shift ended at 7:00 a.m. Williams agreed
        and gave Anderson the key to his apartment.


        Anderson continued driving A.M. around after dropping off
        Williams at work. At one point, he stopped at a liquor store and
        bought some beer. A.M. again stayed in the car because she did
        not know where she was, and it was dark. From the liquor store,
        Anderson drove to an acquaintance’s house. After arguing with
        A.M., Anderson told her to get out of the car, which she did.
        Anderson then threw a beer bottle at A.M. but missed.


        After A.M. left the vehicle, Anderson telephoned A.M.’s sister,
        Marquirite Brooks, and told her that A.M. had “tripped when
        she got out of the car and started walking. . . .” By this time,
        A.M. had walked to a gas station and also telephoned Brooks.
        A.M., unaware that Anderson was on hold with Brooks, asked
        Brooks to pick her up and gave Brooks her location. Brooks
        “clicked over and told [Anderson], [A.M.] [was] at the
        Speedway, go get her.” Brooks then told A.M., “okay, he’s-he


Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1936 | December 13, 2019   Page 3 of 16
        [sic] about to come and get you.” A.M. thought Brooks meant
        Brooks’s boyfriend would be picking her up.


        Before hanging up, Anderson told Brooks they would be at the
        house in forty-five minutes. Knowing it would not take so long to
        get to her house, Brooks tried calling Anderson back several
        times, but the telephone calls kept going to voice mail.


        By the time Anderson arrived at the gas station, it was raining.
        Tired, wet, and believing that Anderson “had calmed down and
        everything was okay and he was just gonna [sic] take [her] to
        [her] sister’s house,” A.M. got in the car. Instead, Anderson
        drove to Williams’s apartment complex.


        Before he got out of the car, Anderson kept asking, “you thought
        I was gonna [sic] pick you up, but you didn’t have to give me
        nothing?” Anderson then went to the passenger’s side, grabbed
        A.M.’s arm, and pulled her out of the car. Anderson then threw
        A.M.’s bag into a dumpster. As A.M. tried to retrieve her bag,
        Anderson started “tussling” with her before pulling A.M. by the
        hair and dragging her into the apartment building. When A.M.
        protested, Anderson threatened to punch her. He then unlocked
        the door to Williams’s apartment and forced A.M. inside.


        When A.M. tried to escape, Anderson pushed her down to the
        floor. He then “stomped on [her] back” and pinned her neck
        down with his knee. A.M. struggled with Anderson, who pushed
        A.M. onto a sofa. Anderson then “unzipped his pants and he
        started wiggling his-self [sic] in [A.M.’s] face.” Anderson next
        made A.M. undress and take a shower.


        When A.M. finished showering, she returned to the living room,
        where Anderson had put her clothes. As she started getting
        dressed, Anderson grabbed A.M. by the pants and pushed her
        down on the sofa. A.M. pleaded to Anderson to stop and let her

Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1936 | December 13, 2019   Page 4 of 16
        go to her sister’s house, but Anderson kept telling her that she
        was “[a]bout to give [him] some.” Anderson then hit A.M. and
        pinned her down. Despite A.M.’s protests, Anderson “put his
        private part inside [her] vagina.”


        After Anderson ejaculated, he “got off of A.M. and let her get
        dressed. Anderson then drove A.M. to her sister’s house. Before
        A.M. got out of the vehicle, Anderson threatened that he would
        “find” A.M. if she called the police.


        After dropping off A.M., Anderson returned to Williams’s work
        at approximately 4:00 a.m. Anderson gave Williams his key back
        and “said he’d just take care of his business later on in the day.”
        Williams did not see Anderson again that day.


        Later that morning, after Brooks noticed several bruises on A.M.,
        A.M. informed her that Anderson had “beat [her] up.” She did
        not tell her sister that Anderson had raped her because she did
        not want to upset her sister. A.M.’s sister telephoned the police,
        who had A.M. transported to a hospital. A.M. told hospital
        personnel that Anderson had raped her.


        A physical examination conducted by a forensic nurse examiner
        revealed several bruises to A.M.’s head and body in addition to
        burst blood vessels in her eye, an injury commonly caused by
        pressure to the neck. A.M. also suffered a laceration to her
        vagina, which was “consistent with a sexual assault [.]”


        Using a Sexual Assault Evidence Collection Kit, the forensic
        nurse swabbed A.M.’s vagina for evidence. She also collected
        A.M.’s underwear. Anderson subsequently stipulated that tests
        revealed seminal material on the vaginal swab and A.M.’s
        underwear and that, to a reasonable degree of scientific certainty,
        he was the source of DNA extracted from both samples.


Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1936 | December 13, 2019   Page 5 of 16
              Detective Dale Horstman, a criminal investigator with the
              Speedway Police Department, interviewed A.M. Detective
              Horstman observed several injuries, including bruises to A.M.’s
              head and body and burst blood vessels in A.M.’s eye. Although
              A.M. did not know the address, Detective Horstman was able to
              locate Williams’s apartment based on a description given by
              A.M. With Williams’s cooperation, Detective Horstman
              confirmed that the lay-out of the apartment was as A.M. had
              described it.


      Anderson v. State, No. 49A02-1107-CR-601, 2012 WL 1894270 at *1–3 (Ind. Ct.

      App. May 24, 2012), trans. denied (record citations omitted).


[4]   The State charged Anderson with: Count I, Class B felony rape; Count II, Class

      C felony criminal confinement; Count III, Class C felony criminal confinement;

      Count IV, Class A misdemeanor battery; Count V, Class A misdemeanor

      battery, and Count VI, Class A misdemeanor battery. At the conclusion of a

      two-day jury trial, the jury found Anderson guilty as charged. At sentencing,

      the trial court merged Count III into Count I, and merged Counts V and VI into

      Count IV. The trial court imposed an aggregate sentence of fifteen years.


[5]   On direct appeal, Anderson claimed that the prosecutor had committed

      misconduct. We rejected this claim and affirmed Anderson’s convictions. Id. at

      *5.


[6]   Anderson filed a pro se petition for post-conviction relief on November 26,

      2012. On November 24, 2014, Anderson filed an amended petition for post-

      conviction relief. This amended petition was itself amended on February 23 and

      August 28, 2015. The trial court heard evidence on Anderson’s petition on

      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1936 | December 13, 2019   Page 6 of 16
      March 15–16, May 10, June 28, and September 20, 2016. The trial court issued

      findings of fact and conclusions of law denying Anderson’s petition on July 27,

      2017. Anderson now appeals.1


                            Post-Conviction Standard of Review
[7]   Post-conviction proceedings afford petitioners a limited opportunity to raise

      issues that were unavailable or unknown at trial and on direct appeal. Davidson

      v. State, 763 N.E.2d 441, 443 (Ind. 2002). The post-conviction petitioner bears

      the burden of establishing grounds for relief by a preponderance of the

      evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). Thus, on appeal

      from the denial of a petition for post-conviction relief, the petitioner stands in

      the position of one appealing from a negative judgment. Id. To prevail on

      appeal from the denial of post-conviction relief, the petitioner must show that

      the evidence as a whole leads unerringly and unmistakably to a conclusion

      opposite that reached by the post-conviction court. Id. at 643–44.


[8]   Because the post-conviction court made specific findings of fact and conclusions

      of law in accordance with Indiana Post-Conviction Rule 1(6), we must


      1
        Anderson filed his Notice of Appeal on August 23, 2017. The trial court clerk filed a Notice of Completion
      of Clerk’s Record on September 27, 2017, and a Notice of Completion of Transcripts on October 11, 2017.
      After numerous delays, this court issued an order on June 22, 2018, ordering Anderson to file his Brief of
      Appellant within thirty days or face dismissal of the appeal. Anderson submitted a defective Brief of
      Appellant on July 23, 2018, and the Clerk of this court issued a notice of defect. Anderson submitted an
      amended Brief on August 20, 2018, which our Clerk marked as untimely filed. We then issued an order on
      August 24, 2018, ordering our Clerk to mark this Brief as filed and ordering the State to file a Brief of
      Appellee within thirty days of our order. On October 23, 2018, we granted the State’s motion to compel
      Anderson to file a conforming Appendix and ordered that the State’s Brief be due within thirty days of the
      filing of the conforming Appendix. We issued similar orders on January 4, March 7, and March 28, 2019.
      Anderson finally filed a conforming Appendix on March 28, 2019. After receiving an extension of time, the
      State filed its Brief on May 30, 2019.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1936 | December 13, 2019         Page 7 of 16
      determine on review whether the post-conviction court’s findings are sufficient

      to support its judgment. Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App.

      2011), aff’d on reh’g, 947 N.E.2d 962. Although we do not defer to the post-

      conviction court’s legal conclusions, we review the post-conviction court’s

      factual findings for clear error. Id. Accordingly, we will not reweigh the

      evidence or judge the credibility of witnesses, and we will consider only the

      probative evidence and reasonable inferences flowing therefrom that support

      the post-conviction court’s decision. Id.


                          Effective Assistance of Trial Counsel
[9]   Anderson contends that his trial counsel was ineffective in various ways. Our

      supreme court has summarized the law regarding claims of ineffective

      assistance of trial counsel as follows:


              A defendant claiming a violation of the right to effective
              assistance of counsel must establish the two components set forth
              in Strickland v. Washington, 466 U.S. 668 (1984). First, the
              defendant must show that counsel’s performance was deficient.
              This requires a showing that counsel’s representation fell below
              an objective standard of reasonableness, and that the errors were
              so serious that they resulted in a denial of the right to counsel
              guaranteed the defendant by the Sixth Amendment. Second, the
              defendant must show that the deficient performance prejudiced
              the defense. To establish prejudice, a defendant must show that
              there is a reasonable probability that, but for counsel’s
              unprofessional errors, the result of the proceeding would have
              been different. A reasonable probability is a probability sufficient
              to undermine confidence in the outcome.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1936 | December 13, 2019   Page 8 of 16
               Counsel is afforded considerable discretion in choosing strategy
               and tactics, and we will accord those decisions deference. A
               strong presumption arises that counsel rendered adequate
               assistance and made all significant decisions in the exercise of
               reasonable professional judgment. The Strickland Court
               recognized that even the finest, most experienced criminal
               defense attorneys may not agree on the ideal strategy or the most
               effective way to represent a client. Isolated mistakes, poor
               strategy, inexperience, and instances of bad judgment do not
               necessarily render representation ineffective. The two prongs of
               the Strickland test are separate and independent inquiries. Thus,
               if it is easier to dispose of an ineffectiveness claim on the ground
               of lack of sufficient prejudice . . . that course should be followed.


       Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations

       omitted).


                                     I. Failure to Present Brady Claim

[10]   Anderson first claims that his trial counsel was ineffective for failing to present

       a Brady claim. In Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States

       Supreme Court held that “suppression by the prosecution of evidence favorable

       to an accused upon request violates due process where the evidence is material

       either to guilt or to punishment, irrespective of the good faith or bad faith of the

       prosecution.” To prevail on a Brady claim, “a defendant must establish: (1) that

       the prosecution suppressed evidence; (2) that the evidence was favorable to the

       defense; and (3) that the evidence was material to an issue at trial.” Minnick v.

       State, 698 N.E.2d 745, 755 (Ind. 1998). Under Brady, evidence is material “only

       if there is a reasonable probability that, had the evidence been disclosed to the

       defense, the result of the proceeding would have been different.” Bunch v. State,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1936 | December 13, 2019   Page 9 of 16
       964 N.E.2d 274, 297 (Ind. Ct. App. 2012) (internal quotation marks and

       citations omitted), trans. denied. Importantly, however, the State will not be

       found to have suppressed material evidence if the evidence was available to a

       defendant through the exercise of reasonable diligence. Id. (citing Conner v.

       State, 711 N.E.2d 1238, 1246 (Ind. 1999)).


[11]   Anderson claims that the State suppressed evidence that A.M., the victim, was

       mildly mentally handicapped. A.M. testified at trial that she had been

       diagnosed as “mildly mentally handicapped,” and had an IQ level of “sixth

       grade.” Trial Tr. pp. 37–38. The only evidence Anderson presented at the post-

       conviction hearing on this issue was his examination of his trial counsel with

       regard to A.M.’s mental handicap, which consists of the following exchange:


               Q.      Did the State provide you with any documentation of
                       [A.M.]’s mental condition prior, during, or after my trial?

               A.      No.

               Q.      Do you think that her testimony that she suffered a mental
                       condition was sufficiently prejudicial to the crime and a
                       fair trial?

                       [State’s objection overruled]

               A.      I do remember being surprised to hear that information
                       during the trial. Whether that means you received an
                       unfair trial, I don’t think so.

               Q.      Why would you say that?

               A.      It’s just my opinion, I guess.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1936 | December 13, 2019 Page 10 of 16
                Q.       Do you think the State should have provided you with
                         documentation of her alleged mental condition prior to my
                         trial?

                         [State’s objection overruled]

                A.       Do I think they should have? I certainly would have liked
                         them to have. I don’t believe they had a legal obligation to
                         – well, I suppose they probably should have, any relevant
                         information, exculpatory or inculpatory.

                Q.       Do you believe that the State’s failure to provide you with
                         documentations of [A.M.]’s alleged mental condition
                         constituted a Brady violation?

                A.       I don’t believe that’s a Brady violation. I do not believe
                         that’s a Brady violation.

                Q.       You do not? Okay. . . .


       Post-Conviction Tr. pp. 98–99 (emphases added).


[12]   As noted by the State, Anderson asked his trial counsel whether he had received

       any documentation regarding A.M.’s mental capacity. Anderson presented no

       evidence, however, that the State was in possession of any such documentation.

       Nor is there any indication that the State otherwise hid A.M.’s mental disability

       from Anderson. Indeed, Anderson was able to depose A.M. prior to trial. 2 And

       the evidence in the Trial Appendix shows that the Marion County Prosecutor’s

       Office maintained an “open file” policy whereby defense counsel could review




       2
        A.M. testified at trial that she did not mention her mental disability during her deposition because she did
       not think it was important. Trial Tr. p. 80.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1936 | December 13, 2019 Page 11 of 16
       the prosecutor’s file including “all appropriate discovery, excluding work

       product.” Trial Appendix pp. 46, 50, 52, 54, 59, 61.


[13]   Anderson has not shown how evidence of A.M.’s mental disability was

       unavailable to him through the exercise of reasonable diligence. See Bunch, 964

       N.E.2d at 297 (citing Conner, 711 N.E.2d at 1246). Indeed, Anderson was in a

       sexual relationship with A.M. for four or five months.


[14]   Because Anderson presented no evidence that the State suppressed evidence of

       A.M.’s mental capabilities, and because information regarding A.M.’s mental

       capabilities was available to Anderson through the exercise of reasonable

       diligence, he has not established that there was any Brady violation. Therefore,

       Anderson has not shown that his trial counsel was ineffective for failing to

       present a Brady claim.


                             II. Failure to Challenge Victim’s Competency

[15]   In a related argument, Anderson contends that his trial counsel was ineffective

       for failing to challenge A.M.’s competency to testify by seeking a continuance,

       requesting a competency hearing, objecting to A.M.’s testimony, and moving

       for a mistrial. Of course, Anderson’s trial counsel was not required to do any of

       these things if A.M. was competent to testify. And Anderson did not establish

       that A.M. was incompetent to testify.


[16]   Anderson argues that if his trial counsel had objected to A.M.’s competency to

       testify, the trial court would have been required under Indiana Evidence Rule

       601 to hold a competency hearing to satisfy the court that she was, in fact,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1936 | December 13, 2019 Page 12 of 16
       competent to testify.3 Anderson contends that, under Evidence Rule 601, a

       witness is not presumed to be either competent or incompetent. He is incorrect.


[17]   Evidence Rule 601 provides that “[e]very person is competent to be a witness

       except as otherwise provided in these rules or by statute.” We have held that

       this rule “presumes that every person is a competent witness unless otherwise

       provided by statute or rule.” Saylor v. State, 55 N.E.3d 354, 361 (Ind. Ct. App.

       2016), trans. denied; see also Ackerman v. State, 51 N.E.3d 171, 191 (Ind. 2016)

       (noting that current evidentiary rule “presumes that every person is a competent

       witness unless otherwise provided by statute or rule[.]”). Thus, contrary to

       Anderson’s claim, A.M. was presumed to be a competent witness, and he has

       not referred us to any rule or statute providing that she was incompetent.


[18]   More fundamentally, Anderson has not shown that A.M. was, in fact,

       incompetent to testify as a witness. A.M. was an adult whose testimony was

       lucid and coherent, regardless of any inconsistencies. Indeed, other than

       referring to A.M.’s testimony regarding her mental abilities, Anderson cites to

       no evidence supporting his claim that her IQ level made her incompetent to

       testify. We decline to hold that simply because A.M. had the IQ of a sixth

       grader, she was incompetent to testify. Accordingly, even if his trial counsel had



       3
         In support of his argument that the trial court would have been required to hold a competency hearing had
       his trial counsel challenged A.M.’s competency, Anderson cites Newsome v. State, 686 N.E.2d 868, 872 (Ind.
       Ct. App. 1997). The Newsome court held that Evidence Rule 601 “d[id] not affect previous Indiana decisions
       regarding the competence of children to testify.” As Newsome involved the competency of a child, we do not
       find it instructive. The same is true of Anderson’s citation to Hughes v. State, 546 N.E.2d 1203, 1209 (Ind.
       1989), which not only predates the adoption of the Indiana Rules of Evidence, but also dealt with a minor
       witness.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1936 | December 13, 2019 Page 13 of 16
       challenged A.M.’s competence to testify, Anderson has not shown that he

       would have been successful in excluding her testimony.


[19]   We also note that Anderson’s trial counsel, although he was unaware before

       trial of A.M.’s claims regarding her mental capabilities, used A.M.’s testimony

       to further attack her credibility, noting that she had not mentioned her capacity

       to the investigating detective or to defense counsel during deposition. See Trial

       Tr. pp. 79–80. We therefore conclude that the post-conviction court did not

       clearly err by rejecting Anderson’s claim that his trial counsel was ineffective for

       failing to challenge A.M.’s competency to testify.


                    III. Failure to Raise Double Jeopardy Claim at Sentencing

[20]   Lastly, Anderson contends that the post-conviction court erred by rejecting his

       claim that his trial counsel should have raised a double jeopardy argument at

       sentencing. Anderson claims that double jeopardy prevented the trial court

       from imposing convictions on Counts III, V, and VI. Anderson contends that

       Counts III, V, and VI should have been vacated, not merely “merged,” and that

       his trial counsel was ineffective for failing to argue this to the trial court at

       sentencing.


[21]   “[A] defendant’s constitutional rights are violated when a court enters judgment

       twice for the same offense, but not when a defendant is simply found guilty of a

       particular count.” Green v. State, 856 N.E.2d 703, 704 (Ind. 2006) (emphasis

       added). As we summarized in Kovats v. State:




       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1936 | December 13, 2019 Page 14 of 16
               If a trial court does not formally enter a judgment of conviction
               on a jury verdict of guilty, then there is no requirement that the
               trial court vacate the “conviction,” and merger is appropriate.
               Townsend v. State, 860 N.E.2d 1268, 1270 (Ind. Ct. App. 2007)
               (quoting Green v. State, 856 N.E.2d 703, 704 (Ind. 2006))[, trans.
               denied]. However, if the trial court does enter judgment of
               conviction on a jury’s guilty verdict, then simply merging the
               offenses is insufficient and vacation of the offense is required. See
               id.; Green, 856 N.E.2d at 704; Gregory v. State, 885 N.E.2d 697,
               703 (Ind. Ct. App. 2008) (where trial court entered judgments of
               conviction on jury’s verdicts of guilty for dealing and conspiracy,
               then later merged the convictions for double jeopardy reasons,
               such merging without also vacating the conspiracy conviction
               was insufficient to cure the double jeopardy violation)[, trans.
               denied].


       982 N.E.2d 409, 414–15 (Ind. Ct. App. 2013).


[22]   Here, there is no indication that the trial court ever entered judgments of

       conviction on Counts III, V, and VI. To the contrary, the trial court stated at

       sentencing:


               The Court would enter judgment of conviction against the
               defendant as to Count I, Rape as a Class B felony, and also as to
               Count II, Confinement as a Class C felony. The Court will be
               merging Count III into the rape charge and not entering
               judgment of conviction, and would enter judgment of conviction
               against the defendant for Count IV, Battery, finding that V and
               VI would merge into Count IV.


       Trial Tr. pp. 274–75. The abstract of judgment also indicates that the trial court

       entered judgment of conviction only on Counts I, II, and IV. Trial App. p. 21.

       Because the trial court never entered judgments of conviction on Counts III, V,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1936 | December 13, 2019 Page 15 of 16
       and VI, there was no double jeopardy problem with regard to these counts.

       Thus, the trial court’s “merger” was sufficient to cure any double jeopardy

       issue. See Kovats, 982 N.E.2d at 415. Anderson’s trial counsel was therefore not

       ineffective for failing to argue that the trial court should vacate these counts for

       which no judgment of conviction was ever entered.


                                                Conclusion
[23]   The post-conviction court did not clearly err in rejecting Anderson’s claims of

       ineffective assistance of trial counsel. The victim’s low IQ was discoverable by

       Anderson through the exercise of reasonable diligence, and there is no evidence

       that the State withheld evidence of A.M.’s mental capacity. Thus, there was no

       Brady violation, and Anderson’s trial counsel was not ineffective for failing to

       make a Brady claim. A.M., like all witnesses, was presumed competent to

       testify, and Anderson presented no evidence that she was incompetent to

       testify. His trial counsel was therefore not ineffective for failing to object to

       A.M.’s competency to testify or move for a mistrial based on her alleged

       incompetency. Lastly, the trial court did not enter judgments of conviction on

       Counts III, V, and VI. Accordingly, there was no double jeopardy issue with

       regard to these counts, and Anderson’s trial counsel was not ineffective for

       failing to argue that the trial court’s “merger” was insufficient. We therefore

       affirm the judgment of the post-conviction court.


[24]   Affirmed.


       May, J., and Brown, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1936 | December 13, 2019 Page 16 of 16
