MEMORANDUM DECISION
                                                                                   FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                              Nov 21 2017, 10:09 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                          CLERK
                                                                               Indiana Supreme Court
court except for the purpose of establishing                                      Court of Appeals
                                                                                    and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
David Fischer                                           Curtis T. Hill, Jr.
New Castle, Indiana                                     Attorney General of Indiana
                                                        J. T. Whitehead
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

David M. Fischer,                                       November 21, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A04-1608-PC-1931
        v.                                              Appeal from the Delaware Circuit
                                                        Court
State of Indiana,                                       The Honorable Thomas A.
Appellee-Plaintiff.                                     Cannon, Jr., Judge
                                                        Trial Court Cause No.
                                                        18C05-1209-PC-1



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A04-1608-PC-1931 | November 21, 2017       Page 1 of 10
                               STATEMENT OF THE CASE
[1]   Appellant-Petitioner, David M. Fischer (Fischer), appeals the post-conviction

      court’s denial of his petition for post-conviction relief following a guilty plea at

      the trial court level.


[2]   We affirm.


                                                   ISSUE
[3]   Fischer appears to present us with four issues on appeal, which we consolidate

      and restate as: Whether he received ineffective assistance of trial counsel.


                      FACTS AND PROCEDURAL HISTORY
[4]   On June 11, 2010, Fischer enticed A.F., whom he knew to be fifteen years old

      at the time, to come to his apartment, where he gave her vodka and then

      subjected her to vaginal, oral, and anal sex. A.F. later reported Fischer. On

      June 18, 2010, the State filed an Information, charging Fischer with three

      Counts of sexual misconduct with a minor, Class B felonies; and one Count of

      contributing to the delinquency of a minor, a Class A misdemeanor.


[5]   On April 26, 2011, the trial court accepted Fischer’s plea of guilty to two

      Counts of Class B felony sexual misconduct with a minor and one Count of

      contributing to the delinquency of a minor, a Class A misdemeanor. After the

      parties presented arguments on the sentence, the trial court entered judgment,

      sentencing Fischer to twelve years, with ten years executed and two years




      Court of Appeals of Indiana | Memorandum Decision 18A04-1608-PC-1931 | November 21, 2017   Page 2 of 10
      suspended, each on the two Counts of sexual misconduct with a minor, to be

      served consecutively, and one year suspended on the Class A misdemeanor.


[6]   Fischer now appeals. Additional facts will be provided when necessary.


                              DISCUSSION AND DECISION
                                            I. Standard of Review


[7]   Under the rules of post-conviction relief, the petitioner must establish the

      grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1, § 5; Strowmatt v. State, 779 N.E.2d 971, 974-75 (Ind. Ct. App. 2002). To

      succeed on appeal from the denial of relief, the post-conviction petitioner must

      show that the evidence is without conflict and leads unerringly and

      unmistakably to a conclusion opposite that reached by the post-conviction

      court. Id. at 975. The purpose of post-conviction relief is not to provide a

      substitute for direct appeal, but to provide a means for raising issues not known

      or available to the defendant at the time of the original appeal. Id. If an issue

      was available on direct appeal but not litigated, it is waived. Id.


[8]   Where, as here, the post-conviction court makes findings of fact and

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

      cannot affirm the judgment on any legal basis, but rather, must determine if the

      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 under a clearly erroneous
      Court of Appeals of Indiana | Memorandum Decision 18A04-1608-PC-1931 | November 21, 2017   Page 3 of 10
      standard. 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.


[9]   Initially, we note that Fischer proceeded pro se before the post-conviction court

      and again on appeal. While Fischer has every right to represent himself in legal

      proceedings, a pro se litigant is nevertheless held to the same standard as a

      trained attorney and is afforded no inherent leniency simply by virtue of being

      self-represented. See Zavodnik v. Harper, 17 N.E.2d 259, 266 (Ind. 2014). This

      also means that pro se litigants are bound to follow the established rules of

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

      do so, which can include waiver for failure to present a cogent argument on

      appeal and adherence to Indiana Appellate Rule 46(A)(8). See Shepherd v.

      Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004). Here, Fischer’s appellate

      brief consists of twenty-one handwritten pages with barely any references to the

      record, appendix, or transcript. It is difficult to discern Fischer’s precise

      allegations because of the many deficiencies in his brief. Pursuant to Ind.

      Appellate Rule 46(A)(6), the statement of facts should contain a narrative

      description of the relevant facts in light of the applicable standard of review.

      Instead, Fischer’s statement of facts is a self-serving recitation of perceived

      concessions made by the State and his trial counsel, admitting to, among

      others, an excessive sentence, ineffectiveness, and Fischer’s innocence.

      Similarly, Fischer’s statement of the case does not lay out the relevant

      Court of Appeals of Indiana | Memorandum Decision 18A04-1608-PC-1931 | November 21, 2017   Page 4 of 10
       procedural posture of the case as required by Ind. Appellate Rule 46(A)(5), but

       instead focuses on the facts, as interpreted by him. Turning to the argument

       section of Fischer’s appellate brief, we note that his arguments lack cogency.

       See Ind. Appellate Rule 46(A)(8). Besides the difficulties this court has in

       deciphering Fischer’s arguments, the overwhelming amount of case law cited

       within the argument section is not used in developing contentions in support of

       his position. Rather, they are merely general statements of rules of law without

       any application to the claims at hand.


[10]   While we prefer to decide issues on the merits, where the appellant’s

       noncompliance with appellate rules is so substantial as to impede our

       consideration of the issues, we may deem the alleged errors waived. Id.

       Although we would be justified to waive Fischer’s issues on appeal, we will

       nevertheless attempt to address his arguments in so far as we can decipher

       them. However, we refuse to comb through the record or transcript to find

       evidence to support his allegations as we will not become an “advocate for a

       party, or address arguments that are inappropriate or too poorly developed or

       expressed to be understood.”1 Id.


                                          II. Ineffective Assistance of Counsel




       1
         It should be pointed out that the State is not free of blame either: in several instances in its appellate brief,
       the State refers to Fischer as Freeman.

       Court of Appeals of Indiana | Memorandum Decision 18A04-1608-PC-1931 | November 21, 2017                Page 5 of 10
[11]   Fischer contends that he was denied the effective assistance of trial counsel.

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

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

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

       below an objective standard of reasonableness based on prevailing professional

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

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

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

       690, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) reh’g denied), trans. denied. The

       two prongs of the Strickland test are separate and distinct inquiries. Id. Thus,

       “if it is easier to dispose of an ineffectiveness claim on the ground of lack of

       sufficient prejudice . . . that course should be followed.” Timberlake v. State, 753

       N.E.2d 591, 603 (Ind. 2001) (quoting Strickland, 466 U.S. at 697) reh’g denied;

       cert. denied, 537 U.S. 839, 123 S.Ct. 162, 154 L.Ed.2d 61 (2002).


[12]   Counsel is afforded considerable discretion in choosing strategy and tactics and

       we will accord those decisions deference. Jervis, 28 N.E.3d at 365. A strong

       presumption arises that counsel rendered adequate assistance and made all

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

       The Strickland court recognized that even the finest, most experienced criminal

       defense attorney may not agree on the ideal strategy or the most effective way

       to represent a client. Id. Isolated mistakes, poor strategy, inexperience, and

       instances of bad judgment do not necessarily render representation ineffective.

       Id. Furthermore, we will not speculate as to what may or may not have been

       Court of Appeals of Indiana | Memorandum Decision 18A04-1608-PC-1931 | November 21, 2017   Page 6 of 10
       advantageous trial strategy as counsel should be given deference in choosing a

       trial strategy which, at the time and under the circumstances, seems best. Id.


[13]   Because Fischer brings his petition for post-conviction relief after pleading

       guilty at the trial court level, it is important to observe that “[t]here are two

       different types of ineffective assistance of counsel claims that can be made in

       regards to guilty pleas: (1) failure to advise the defendant on an issue that

       impairs or overlooks a defense; and (2) an incorrect advisement of penal

       consequences.” McCullough v. State, 987 N.E.2d 1173, 1176 (Ind. Ct. App.

       2013) (citing Segura v. State, 749 N.E.2d 496, 500 (Ind. 2001)). Importantly, the

       decision to enter a guilty plea is largely the defendant’s decision, and is

       therefore different from the tactical or investigatory steps that are the bases of

       most claims of ineffective assistance of counsel. Segura, 749 N.E.2d at 503-04.

       In State v. Van Cleave, 674 N.E.2d 1293, 1301 (Ind. 1996), our supreme court

       reasoned:


               Demonstrating prejudice seems particularly appropriate in the
               context of a claim of ineffective assistance by a defendant who
               has pleaded guilty. The guilty plea, virtually unique among all
               procedural steps, involves the judgment of the defendant as well
               as his attorney . . . [T]he decision to plead is often strongly if not
               overwhelmingly influenced by the attorney’s advice. But it is
               equally true that the defendant appreciated the significance of the
               plea and is uniquely able to evaluate its factual accuracy. The
               requirement that the court satisfy itself as to the factual basis for
               the plea is designed to ensure that only guilty defendants plead
               guilty, and also that the defendant’s decision to waive a jury trial
               is an informed and reflective one. Many decisions at trial—
               calling a given witness, asserting a defense, or the extent of cross-

       Court of Appeals of Indiana | Memorandum Decision 18A04-1608-PC-1931 | November 21, 2017   Page 7 of 10
               examination—are difficult if not impossible for the defendant to
               make, and reliance on counsel is unavoidable. In contrast, the
               decision to plead guilty is ultimately the prerogative of the
               defendant, and the defendant alone. More than conjecture or
               hope for a lucky break at trial should be required to upset that
               action years later.


       Likewise, “if the error or omission has the result of overlooking evidence or

       circumstances that affect the sentence imposed, prejudice is evaluated by the

       reasonable probability that it had that effect.” Segura, 749 N.E.2d at 504.


                                                1. Trial Counsel


[14]   As far as we can discern, Fischer contends that his trial counsel failed to

       investigate, failed to object to the accuracy of facts used at sentencing, and

       failed to research controlling law. His argument is mostly focused on his

       counsel’s lack of contacting witnesses who could have provided evidence of

       mitigating circumstances to be used during his sentencing. It appears that the

       mitigating circumstance Fischer alludes his trial counsel overlooked was the

       abuse he had suffered as a child. Trial counsel testified during the post-

       conviction relief hearing that even though he had tried to contact Fischer’s

       brother, the number Fischer had given him did not work. Fischer did not

       provide trial counsel with any other witnesses to contact. Furthermore, Fischer

       failed to establish that even if his mental health history or abusive childhood

       could have been established, the result of the sentencing hearing would have

       been different. Our supreme court has consistently held that evidence of a



       Court of Appeals of Indiana | Memorandum Decision 18A04-1608-PC-1931 | November 21, 2017   Page 8 of 10
       difficult childhood “is entitled to little, if any, mitigating weight.” Bethea v.

       State, 983 N.E.2d 1134, 1141 (Ind. 2013).


[15]   Additionally, Fischer petitioned the post-conviction court for relief on a claim

       that trial counsel failed to file certain unspecified motions. If Fischer is to prove

       successfully that ineffective assistance stemmed from a failure to file a motion,

       he must show that the motion would have been granted if raised—which he did

       not. Sweet v. State, 10 N.E.3d 10, 14 (Ind. Ct. App. 2014) (citing Helton v. State,

       907 N.E.2d 1020, 1023 (Ind. 2009)).


[16]   Besides several pages filled with generalized statements and without references

       to the record, Fischer fails to provide any evidence supporting his allegations,

       let alone establish that he was prejudiced by these perceived omissions.


                                            2. Freestanding Claims


[17]   In addition to his allegations of ineffective assistance of trial counsel, Fischer

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

       contentions are allegations that the trial court’s sentence was excessive, that the

       trial court and the State violated the terms of the plea agreement, and that the

       trial court erroneously imposed consecutive sentences. As we have repeatedly

       noted, “[p]ost-conviction relief is not a substitute for a direct appeal.” Ind.

       Post-Conviction Rule 1, § 1(b). Post-conviction procedures create a narrow

       remedy for subsequent collateral challenges to convictions. Martin v. State, 760

       N.E.2d 597, 599 (Ind. 2002). Freestanding claims that the original trial court

       committed error are available only on direct appeal. Id. Accordingly, Fischer

       Court of Appeals of Indiana | Memorandum Decision 18A04-1608-PC-1931 | November 21, 2017   Page 9 of 10
       waived these allegations as their review is unavailable to him in post-conviction

       relief proceedings.


                                            CONCLUSION
[18]   Based on the foregoing, we conclude that trial counsel provided effective

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

       denial of Fischer’s petition.


[19]   Affirmed.


[20]   Robb, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A04-1608-PC-1931 | November 21, 2017 Page 10 of 10
