      MEMORANDUM DECISION
                                                                                   FILED
      Pursuant to Ind. Appellate Rule 65(D), this                             Oct 24 2017, 10:00 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the                           CLERK
                                                                               Indiana Supreme Court
      purpose of establishing the defense of res judicata,                        Court of Appeals
                                                                                    and Tax Court
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      Coy Daniels                                               Curtis T. Hill, Jr.
      Carlisle, Indiana                                         Attorney General of Indiana
                                                                James B. Martin
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Coy Daniels,                                              October 24, 2017

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                49A04-1701-PC-60
              v.                                                Appeal from the Marion County
                                                                Superior Court.
                                                                The Honorable Kurt Eisgruber,
      State of Indiana                                          Judge.
      Appellee-Respondent.                                      The Honorable Steven Rubick,
                                                                Magistrate.
                                                                Trial Court Cause No.
                                                                49G01-0805-PC-106844




      Friedlander, Senior Judge

[1]   Coy Daniels appeals the denial of his petition for post-conviction relief. We

      affirm.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-60 | October 24, 2017            Page 1 of 18
[2]   The facts and procedural history of the case, as stated in Daniels’ direct appeal,

      are as follows:

              On November 17, 2007, James Compton met with Daniels, Sam
              Fancher, Lawaine Smith, and Larry Neal. They were driving a
              dark blue Dodge Magnum, which Paul Jordan had rented and
              loaned to Daniels. Compton had previously seen Daniels and
              Jordan in the same vehicle. Daniels told Compton that he “had
              a lick,” which means that he had a robbery or burglary he wanted
              to carry out. Tr. p. 87. Daniels asked Compton if he had any
              guns. During the conversation, Compton saw that Daniels had
              three 0.40 caliber Glocks and a “mini AKA” in the car. Id. at 90.
              Compton heard Lawaine talking to his father, Lanthern Smith,
              on the cell phone about the robbery and heard that Lanthern was
              supposed to open the door of the place to be robbed for them.
              Lawaine asked Lanthern if they had “any guns on them,” and
              Lanthern responded that they did not. Id. at 92.
              Curtis Williams also saw Daniels, Neal, Fancher, and Lawaine
              in a dark-colored Magnum. Daniels was wearing a leather coat
              with fur around the collar and had a 0.40 caliber gun. Williams
              heard them say that they were waiting on Compton and saw
              Compton get in the Magnum.
              On the same day, Melvin Fitzgerald had agreed to host a dice
              game at his residence on West 10th Street in Indianapolis.
              Approximately nine men participated in the dice game, including
              Arnold Fitzgerald, Lanthern, and Terrance Williams. Arnold
              was Melvin’s nephew and had lost his right eye. Melvin did not
              allow the participants to have weapons, and he patted everyone
              down. The dice game involved about $1,000 total. During the
              game, Melvin saw Lanthern talking on his cell phone. Shortly
              thereafter, Lanthern told Melvin that he needed to talk to him,
              and they went into Melvin’s bedroom. Melvin heard a knock on
              the door and told Lanthern to answer the door. Melvin heard “a
              big commotion” and shooting, and everyone “scattered.” Id. at
              59-60. Participants in the dice game tried to hide or escape the
              residence.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-60 | October 24, 2017   Page 2 of 18
        Williams was playing dice with the other men when he heard a
        knock on the door. Lanthern answered the door, and Williams
        saw a man wearing a jacket with fur on it come into the house.
        The man was holding a gun, and Williams heard someone say,
        “freeze.” State’s Exhibit 66. Williams heard gun shots and was
        shot in the right hand. Everyone started running, and Williams,
        his brother, and Arnold ran toward the basement. Williams and
        his brother went into the basement, while Arnold tried to run out
        the back door. Williams later saw Arnold on the floor near the
        back door, and Arnold was not moving. Arnold died of a
        gunshot wound to his back that damaged his heart. A 0.40
        caliber bullet was removed from his chest. Williams later
        identified Neal in a photo array as a person involved in the
        shooting.
        Melvin’s neighbor heard shots fired, called 911, saw a “black
        Magnum” sitting on 10th Street, and saw the vehicle drive away.
        Tr. p. 108.
        Later that day, Compton heard Lawaine, Fancher, and Daniels
        arguing about who shot first. Fancher was making fun of
        Daniels for shooting into the basement. They also discussed the
        money they had taken.
        The next day, Williams was at Fancher's residence with several
        other people. Fancher said, “guess what this motherf* * *er had
        us do?” Id. at 163. Pointing at Lawaine, Fancher said that
        Lawaine had them “run in the house with about 12 motherf* *
        *ers in there.” Id. Fancher then said that Compton ran back to
        the car before they walked into the house. Fancher said that a
        “one-eyed dude kept on moving.” Id. They said that Daniels
        was following men toward the basement, and Daniels said that
        he fired shots through the basement door. Daniels complained
        that he could not hear out of one of his ears due to the shooting.
        The men argued about which one of them shot first. They also
        said that they had picked up money off the floor at Melvin’s
        house.



Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-60 | October 24, 2017   Page 3 of 18
              The State charged Daniels with murder, felony murder, robbery
              as a Class A felony, and battery as a Class C felony. His first jury
              trial ended in a mistrial. At his second trial, the jury found
              Daniels guilty as charged. The trial court sentenced him to an
              aggregate sentence of fifty-five years for murder, Class B felony
              robbery, and Class C felony battery.

      Daniels v. State, No. 49A02-0912-CR-1277, *1-2 (Ind. Ct. App. Sept. 24, 2010)

      (footnote omitted), trans. denied. On appeal, Daniels claimed prosecutorial

      misconduct and challenged the sufficiency of the evidence. The Court affirmed

      the trial court’s judgment.


[3]   In 2011, Daniels filed a petition for post-conviction relief. The court referred

      the matter to the State Public Defender, who declined to represent Daniels.

      Daniels proceeded pro se and amended his petition with the court’s permission

      in 2014 and again in 2015. An evidentiary hearing was scheduled for October

      21, 2014, but on the day of the hearing neither Daniels’ trial counsel nor his

      appellate attorney was available, so the court rescheduled the hearing. The

      court held an evidentiary hearing on August 25, 2015, at which Daniels

      represented himself. At the end of the hearing, the court agreed to schedule

      another hearing to consider additional evidence. Attorney Jonathan Gotkin

      filed an appearance on behalf of Daniels on October 21, 2015. Daniels, through

      Attorney Gotkin, amended the petition for a third time in 2016. The amended

      petition raised claims of ineffective assistance of trial counsel. The court held

      additional evidentiary hearings on November 17, 2015, and March 22, 2016.

      Gotkin represented Daniels at both hearings.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-60 | October 24, 2017   Page 4 of 18
[4]   On November 3, 2016, the court issued findings of fact and conclusions of law

      denying Daniels’ petition for post-conviction relief. The court rejected Daniels’

      claims of ineffective assistance of trial counsel and ineffective assistance of

      appellate counsel. In the meantime, Daniels sent the court a pro se motion to

      withdraw his petition for post-conviction relief without prejudice and a motion

      to proceed pro se. On November 4, the court received Daniels’ pro se motion

      to withdraw the petition and denied it as moot. On November 4 and again on

      November 6, Attorney Gotkin filed motions to withdraw his appearance. The

      court granted his request on November 7. Next, Daniels filed a pro se motion

      to correct error, which the court denied. This appeal followed.


[5]   Daniels raises six issues, which we consolidate and restate as:

              1. Whether the trial court abused its discretion in denying
                 Daniels’ pro se motion to withdraw his petition for post-
                 conviction relief without prejudice.
              2. Whether the trial court abused its discretion in denying
                 Daniels’ request to issue a subpoena for Detective Charles
                 Benner.
              3. Whether the trial court abused its discretion in denying
                 Daniels’ request to admit certain documents into evidence
                 during the evidentiary hearings.
              4. Whether the post-conviction court erred in denying Daniels’
                 petition for post-conviction relief.
              5. Whether Daniels received ineffective assistance of post-
                  conviction counsel.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-60 | October 24, 2017   Page 5 of 18
                      1. Denial of Request to Withdraw Petition
[6]   Daniels argues that his motion to withdraw his petition for post-conviction

      relief was timely filed under the prison mailbox rule and the post-conviction

      court erred by denying it as moot. He further argues the court erred by denying

      his motion to correct error on this point. The State responds that the court

      acted within its discretion.


[7]   Indiana Post-Conviction Rule 1(4) provides:

              At any time prior to entry of judgment the court may grant leave
              to withdraw the petition. The petitioner shall be given leave to
              amend the petition as a matter of right no later than sixty [60]
              days prior to the date the petition has been set for trial. Any later
              amendment of the petition shall be by leave of the court.

[8]   Rule 1(4) does not confer an absolute right to withdraw a petition for post-

      conviction relief. Mitchell v. State, 946 N.E.2d 640 (Ind. Ct. App. 2011), trans.

      denied. Whether to allow withdrawal of a petition is within the discretion of the

      trial court, and we review the court’s decision for an abuse of that discretion.

      Id. An abuse of discretion occurs if the decision is clearly against the logic and

      effect of the facts and circumstances before the court. Id.


[9]   It appears Daniels gave prison officials his motion to withdraw the petition for

      post-conviction relief before the court denied the petition on November 3, 2016.

      In any event, we cannot conclude the court’s denial of the motion was against

      the logic and effect of the facts and circumstances. The court was not required

      to accept Daniels’ pro se filing because he was still represented by counsel. See



      Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-60 | October 24, 2017   Page 6 of 18
       Jenkins v. State, 809 N.E.2d 361 (Ind. Ct. App. 2004) (court not required to

       accept pro se motions from a party that is represented by counsel), trans. denied.


[10]   In addition, the procedural history of the case demonstrated that further delay

       would have been unwarranted. Daniels’ petition had been pending since 2011,

       and he had been permitted to amend it three times (twice pro se, once by

       counsel). The court had held an evidentiary hearing over three days, and

       permitting withdrawal of the petition would have nullified that expenditure of

       judicial resources. The court did not abuse its discretion in denying Daniels’

       request to withdraw the petition.


                              2. Denial of Request for Subpoena
[11]   Daniels argues the trial court should have granted his request to subpoena

       Detective Charles Benner to testify, arguing Benner’s testimony “was the only

       way to enter exhibits by proper foundation.” Appellant’s Br. p. 11. The State

       responds that Daniels has waived this issue by failing to provide cogent

       argument and citation to authority.


[12]   Per Indiana Appellate Rule 46(A)(8)(a), the argument section of an appellant’s

       brief “must contain the contentions of the appellant on the issues presented,

       supported by cogent reasoning. Each contention must be supported by citations

       to the authorities, statutes, and the Appendix or parts of the Record on Appeal

       relied on, in accordance with Rule 22.” Failure to present cogent argument or

       to provide adequate citation to authority and portions of the record results in

       waiver. Smith v. State, 822 N.E.2d 193 (Ind. Ct. App. 2005), trans. denied. Here,

       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-60 | October 24, 2017   Page 7 of 18
       Daniels’ argument on this issue consists of the sentence quoted above, a citation

       to the record, and a citation to a post-conviction rule. The argument is waived

       for failure to provide cogent argument and adequate citation to authority.


[13]   Waiver notwithstanding, we find no error. A post-conviction court “shall”

       issue a subpoena if the court determines “the witness’ testimony would be

       relevant and probative.” Ind. Post-Conviction Rule 1(9). The court thus has

       discretion to determine whether to grant or deny the petitioner’s request for a

       subpoena, and we review the decision for an abuse of discretion. Pannell v.

       State, 36 N.E.3d 477 (Ind. Ct. App. 2015), trans. denied.


[14]   During the November 17, 2015 hearing, the post-conviction court explained

       that he had denied Daniels’ request to subpoena Detective Benner “because the

       issues that he attempted to bring were not germane to this proceeding.” PCR

       Tr. Vol. II, p. 61. Daniels had argued that Benner did not testify at the original

       trial, and in order to establish that his trial counsel failed to adequately

       investigate the case, Daniels needed Benner to explain what he would have

       testified to if he had been called at trial. Appellant’s App. Vol. III, pp. 88-89.

       Daniels did not describe for the post-conviction court, and has not explained to

       this Court, the nature of Benner’s expected testimony beyond unsupported

       speculation that Benner could authenticate exhibits. Thus, Daniels did not

       carry his burden of proving Benner’s testimony would be relevant and

       probative, and the post-conviction court did not abuse its discretion in denying

       Daniels’ request to subpoena Benner.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-60 | October 24, 2017   Page 8 of 18
                       3. Refusal to Admit Exhibits into Evidence
[15]   Daniels argues the post-conviction court erred by refusing to accept as evidence

       several affidavits and other documents he tendered to the court prior to the

       evidentiary hearings. His sole argument on this point in his opening brief is as

       follows: “The Post-Conviction Court converted a procedural technicality into a

       trap preventing the introduction of evidence by a pro-se petitioner when the

       court failed to ensure that the documents Daniels attempted to enter as

       evidence were entered.” Appellant’s Br. p. 11. Daniels then cites to a single

       case and to portions of the Appellant’s Appendix. He does not discuss a

       standard of review, identify the specific evidentiary rulings he challenges, or

       explain which of his tendered exhibits are admissible and why. This claim is

       waived for failure to present cogent argument. See Norris v. State, 53 N.E.3d 512

       (Ind. Ct. App. 2016) (defendant waived challenge to admission of hearsay

       evidence by failing to present specific argument).


[16]   Waiver notwithstanding, we find no grounds for reversal. We review a court’s

       decision to admit or exclude evidence for an abuse of discretion. Montgomery v.

       State, 21 N.E.3d 846 (Ind. Ct. App. 2014), trans. denied. An abuse of discretion

       occurs where the trial court’s decision is clearly against the logic and effect of

       the facts and circumstances presented. Id.


[17]   On March 20, 2015, Daniels filed with the post-conviction court a Notice of

       Post-Conviction Relief Exhibits, asking the court to take judicial notice of




       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-60 | October 24, 2017   Page 9 of 18
       exhibits A through Z. The court indicated it had received the exhibits, but they

       would “have to be reviewed individually.” Appellant’s App. Vol. II, p. 20.


[18]   During the August 25, 2015 hearing the post-conviction court agreed to take

       judicial notice of the documents in its file, including the abstract of judgment,

       charging information, the probable cause affidavit, and the chronological case

       summary, all of which were included in Daniels’ packet of proposed exhibits.

       The court further agreed to take judicial notice of the Record on Appeal from

       Daniels’ direct appeal. The court refused to take judicial notice of documents

       that were not part of the trial court record or the appellate court record,

       including transcripts or documents that were related to another defendant’s

       case. Although a court “may judicially notice . . . records of a court of this

       state,” Ind. Evidence Rule 201, the court is not obligated to do so.


[19]   In addition to documents from other cases, Daniels’ proposed exhibits included

       handwritten notes, photographic lineups, witness statements, what appears to

       be a 911 record, and Daniels’ records from an interstate law enforcement

       database. He did not present testimony to authenticate any of those

       documents. “To satisfy the requirement of authenticating or identifying an item

       of evidence, the proponent must produce evidence sufficient to support a

       finding that the item is what the proponent claims it is.” Evid. R. 901(a). In

       the absence of an evidentiary foundation, the trial court did not abuse its

       discretion by excluding those proposed exhibits. See Reef v. Asset Acceptance,

       LLC, 43 N.E.3d 652 (Ind. Ct. App. 2015) (trial court erred in admitting



       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-60 | October 24, 2017   Page 10 of 18
       financial records; records were neither self-authenticating nor authenticated by

       an affidavit or testimony).


                                  4. Post-Conviction Judgment
[20]   Daniels challenges the post-conviction court’s denial of his petition. His

       argument in his opening brief consists of one sentence, which he repeats in the

       summary of argument and argument sections, as follows:

               The Post Conviction Court’s 11-3-2016, wholesale adoption of
               the state’s 10-24-2016 Proposed Findings of Fact and
               Conclusions of Law must be reversed where the evidence
               unerringly and unmistakably leads to the opposite conclusion
               and contains numerous error and erroneous legal standard for
               prejudice.

[21]   Appellant’s Br. pp. 9, 10. He then states in the argument section that he “relies

       entirely upon his arguments and attached evidence of the following” and

       provides citations to documents he filed with the post-conviction court, to the

       post-conviction transcript, and to the final judgment.


[22]   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 (Ind. Ct.

       App. 1999), trans. denied. Attempts to incorporate by reference arguments

       presented in trial court documents or during a trial court hearing do not comply

       with the Appellate Rules. Id. Daniels failed to present cogent argument on this

       issue in his opening brief, resulting in waiver.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-60 | October 24, 2017   Page 11 of 18
[23]   Waiver notwithstanding, Daniels’ arguments, which we decipher as best we can

       from his appellate briefs, present no grounds for reversal. A post-conviction

       court’s denial of relief will be affirmed unless the petitioner shows that the

       evidence leads unerringly and unmistakably to a decision opposite that reached

       by the trial court. West v. State, 938 N.E.2d 305 (Ind. Ct. App. 2010) (quotation

       omitted), trans. denied. We accept the post-conviction court’s findings of fact

       unless they are clearly erroneous. Id. In addition, we consider only the

       probative evidence and reasonable inferences therefrom that support the post-

       conviction court’s determination, and we will not reweigh the evidence or judge

       witness credibility. Id.


[24]   Daniels first argues the post-conviction court’s findings of fact and conclusions

       thereon are erroneous because the court adopted the State’s proposed findings

       wholesale. A court’s verbatim adoption of proposed findings and conclusions

       may leave us with a lower level of confidence that the findings reflect the

       independent judgment of the court, but such findings and conclusions are not

       “inherently suspect.” Kitchell v. Franklin, 26 N.E.3d 1050, 1058 (Ind. Ct. App.

       2015), trans. denied.


[25]   Next, Daniels argues the post-conviction court’s findings and conclusions are

       erroneous because he concludes the court misstated the standard for

       determining ineffective assistance of counsel. Specifically, he argues the court

       did not correctly describe the prejudice element of the standard. We disagree.

       The court described the prejudice element of ineffective assistance as follows:



       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-60 | October 24, 2017   Page 12 of 18
               Second, the Defendant must show the deficient performance
               prejudiced the defense. [Wesley v. State, 788 N.E.2d 1247, 1252
               (Ind. 2003)]. Prejudice is proven by showing counsel’s errors
               were so serious as to deprive the defendant of a fair trial, a failing
               so severe as to render the result unreliable. Id. In other words,
               the Defendant must show there is a reasonable probability that,
               but for counsel’s unprofessional errors, the result of his trial
               would be different. Id. A reasonable probability is a probability
               sufficient to undermine confidence in the outcome. Id.
               Furthermore, the two prongs are separate and independent
               inquiries, and if a court can “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)].

       Appellant’s App. Vol. VII, p. 72.


[26]   The court’s explanation of the prejudice standard follows established precedent,

       and we find no error. Daniels argues the court improperly altered the standard

       by stating that, with respect to Daniels’ claim that trial counsel failed to

       adequately investigate his case, Daniels “wholly failed to produce evidence that

       trial counsel should have uncovered that would have resulted in his acquittal.”

       Id. at 74. We consider the post-conviction court’s statement as a commentary

       on the evidence presented in this case rather than an alteration of the well-

       established standard for ineffective assistance.


[27]   Daniels next argues in his reply brief that the post-conviction court erred in

       rejecting his claims that his trial counsel rendered ineffective assistance by: (1)

       failing to adequately investigate the case; (2) failing to challenge the jury

       instructions on murder and felony murder; (3) failing to challenge the jury

       verdict forms; and (4) failing to argue Daniels’ convictions for murder and

       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-60 | October 24, 2017   Page 13 of 18
       felony murder violated double jeopardy. Our standard of review for claims of

       ineffective assistance of counsel is as follows:

               To prevail on a claim of ineffective assistance of counsel, a
               petitioner must demonstrate both that his counsel’s performance
               was deficient and that the petitioner was prejudiced by the
               deficient performance. A counsel’s performance is deficient if it
               falls below an objective standard of reasonableness based on
               prevailing professional norms. To establish prejudice, the
               petitioner must show that there is a reasonable probability that,
               but for counsel’s unprofessional errors, the result of the
               proceeding would have been different. Isolated poor strategy,
               inexperience, or bad tactics does not necessarily constitute
               ineffective assistance. When considering a claim of ineffective
               assistance of counsel, we strongly presume that counsel rendered
               adequate assistance and made all significant decisions in the
               exercise of reasonable professional judgment. Counsel’s
               performance is presumed effective, and a defendant must offer
               strong and convincing evidence to overcome this presumption.

       McKnight v. State, 1 N.E.3d 193, 200 (Ind. Ct. App. 2013) (citations and

       quotations omitted).


[28]   Regarding Daniels’ claim of failure to investigate, counsel has a duty to make

       reasonable investigations or to make a reasonable decision that makes

       particular investigations unnecessary. Id. (quoting Strickland v. Washington, 466

       U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). It is well settled that we

       should resist judging an attorney’s performance with the benefit of hindsight.

       Id. Accordingly, when deciding a claim of ineffective assistance for failure to

       investigate, we apply a great deal of deference to counsel’s judgments. Id. at

       201.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-60 | October 24, 2017   Page 14 of 18
[29]   Daniels pointed to tendered exhibits that he said demonstrated his trial counsel

       had failed to investigate important leads, but the post-conviction court

       determined those exhibits were unsubstantiated. We agree. The post-

       conviction court further decided counsel properly acted within her professional

       judgment. During the March 22, 2016 post-conviction hearing, trial counsel

       Michelle Wall stated her strategy was to challenge the testimony of two of the

       State’s main witnesses as “not credible enough to come to the level of guilty.”

       Tr. Vol. II, p. 87. She investigated Daniels’ alibi claim but ultimately chose not

       to present it. Id. at 90. The trial court did not err in declining to second-guess

       counsel’s strategy.


[30]   Turning to the jury verdicts, Daniels argues his trial counsel should have

       challenged the jury verdicts for murder and felony murder because they allowed

       the jury to reach “inconsistent verdicts.” Appellant’s Reply Br. p. 7. In order to

       prevail on a claim of ineffective assistance due to counsel’s failure to object, the

       petitioner must show a reasonable probability that the objection would have

       been sustained if made. Garrett v. State, 992 N.E.2d 710 (Ind. 2013).


[31]   The post-conviction court correctly noted there was no inconsistency in this

       case, because the jury determined Daniels was guilty as charged. The post-

       conviction court thus did not err in rejecting Daniels’ argument because the

       argument was based on a flawed factual premise. Daniels further claims the

       post-conviction court erred on this point because it cited a case, Marsh v. State,

       271 Ind. 454, 393 N.E.2d 757 (1979), that was overruled by Beattie v. State, 924

       N.E.2d 643 (Ind. 2010). The trial court’s citation of Marsh does not undermine

       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-60 | October 24, 2017   Page 15 of 18
       the correctness of its factual analysis. Furthermore, Beattie does not help

       Daniels’ case either because it is procedurally dissimilar. That case is

       distinguishable because it answered the question of whether a defendant may

       challenge allegedly inconsistent jury verdicts on direct appeal, not whether

       counsel should attempt to prevent inconsistent verdicts during trial. Daniels

       has failed to establish reversible error.


[32]   Next, Daniels claims his trial counsel should have objected to the verdict forms

       because they did not distinguish between principal and accomplice liability.

       Daniels cites Castillo v. State, 974 N.E.2d 458 (Ind. 2012), for the general

       principle that imposing the same penalty upon an accomplice and a principal

       may not be appropriate. That case is distinguishable because it did not involve

       a challenge to jury verdict forms. Daniels has not cited, and we have not found,

       any cases holding that counsel must ask for verdict forms that require the jury

       to determine principal and accomplice liability. To the contrary, a panel of this

       Court stated that the use of special verdict forms to assign accomplice and

       principal liability was not required and was instead, at best, harmless error.

       Batalis v. State, 887 N.E.2d 106 (Ind. Ct. App. 2008), trans. denied. Daniels has

       failed to demonstrate that counsel would have prevailed in the trial court if she

       had objected to the jury verdict forms, and the post-conviction court did not err

       in rejecting this claim.


[33]   Finally, Daniels argues his counsel should have objected to his convictions of

       murder and felony murder because the convictions violated his constitutional

       protections against double jeopardy, and merger of the convictions did not cure

       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-60 | October 24, 2017   Page 16 of 18
       the error. Daniels is incorrect because the Indiana Supreme Court has held that

       there is no double jeopardy violation where a defendant is convicted of murder

       and felony murder if the trial court merges the convictions. Laux v. State, 821

       N.E.2d 816 (Ind. 2005). Thus, counsel would not have prevailed if she had

       challenged the trial court’s decision to merge the convictions. Counsel cannot

       be deemed ineffective for choosing not to pursue a course of action that would

       have failed. In summary, even if Daniels had not procedurally defaulted his

       challenge to the post-conviction court’s judgment, none of his claims establish

       reversible error.


               5. Ineffective Assistance of Post-Conviction Counsel
[34]   For his final allegation of error, Daniels argues Attorney Gotkin “in essence

       abandoned his client” during evidentiary hearings by failing to make an offer of

       proof and by failing to argue in favor of admitting evidence Daniels sought to

       present. Appellant’s Br. p. 9. The State responds that Daniels’ attorney did not

       act inappropriately.


[35]   Neither the Sixth Amendment nor article I, section 13 of the Indiana

       Constitution guarantee the right to counsel in post-conviction proceedings.

       Graves v. State, 823 N.E.2d 1193 (Ind. 2005). Post-conviction proceedings are

       not criminal actions and need not be conducted under the standards followed

       by criminal actions. Id. As a result, when a petitioner claims ineffective

       assistance of post-conviction counsel, the key inquiry is whether “‘counsel in

       fact appeared and represented the petitioner in a procedurally fair setting which


       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-60 | October 24, 2017   Page 17 of 18
       resulted in a judgment of the court.’” Id. at 1196 (quoting Baum v. State, 533

       N.E.2d 1200, 1201 (Ind. 1989)). Indiana’s appellate courts have found post-

       conviction counsel to have rendered ineffective assistance when counsel

       effectively abandons his client and does not present any evidence in support of

       the petition. See, e.g., Waters v. State, 574 N.E.2d 911 (Ind. 1991) (counsel

       offered no evidence, client was forced to prepare and submit affidavits on his

       own).


[36]   In this case, Attorney Gotkin amended Daniels’ pro se petition to refine his

       claims. Further, Gotkin appeared at two post-conviction evidentiary hearings,

       where he questioned witnesses and offered exhibits. He repeatedly offered

       Daniels’ proposed exhibits as evidence, only to have the requests denied by the

       post-conviction court. Even then, Gotkin continued to question witnesses

       about those documents. Based on these facts, we cannot conclude Gotkin

       abandoned his client, and Daniels’ claim of ineffective assistance of post-

       conviction counsel must fail.


[37]   For the foregoing reasons, we affirm the judgment of the post-conviction court.


[38]   Judgment affirmed.


       Mathias, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-60 | October 24, 2017   Page 18 of 18
