      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                              FILED
      this Memorandum Decision shall not be                          Dec 21 2016, 6:19 am

      regarded as precedent or cited before any                           CLERK
      court except for the purpose of establishing                    Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      William A. Goebel                                        Gregory F. Zoeller
      Justin L. Froedge                                        Attorney General of Indiana
      Goebel Law Office
      Crawfordsville, Indiana                                  George P. Sherman
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Timothy Newman,                                          December 21, 2016
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               12A02-1601-PC-83
              v.                                               Appeal from the
                                                               Clinton Circuit Court
      State of Indiana,                                        The Honorable
      Appellee-Respondent.                                     Randy G. Hainlen, Senior Judge
                                                               Trial Court Cause No.
                                                               12C01-1012-PC-270



      Kirsch, Judge.


[1]   After the post-conviction court denied Timothy Newman’s (“Newman”)

      petition for post-conviction relief, he appeals and claims that his trial counsel

      Court of Appeals of Indiana | Memorandum Decision 12A02-1601-PC-83 | December 21, 2016   Page 1 of 7
      was ineffective. We consolidate his issues and restate as: whether the post-

      conviction court properly denied Newman’s petition for post-conviction relief.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In 2005, the State charged Newman with five counts of child molesting for

      conduct that he engaged in over the course of approximately nine months with

      his two step-daughters. In 2006, following a jury trial, Newman was convicted

      of three counts of Class A felony child molesting and two counts of Class C

      felony child molesting. PCR App. at 62. On June 26, 2006, the trial court

      sentenced Newman to consecutive terms of thirty years each for the Class A

      felonies and four years each for the Class C felonies. Id. at 59-61. Newman

      filed a direct appeal and raised the following issues: (1) whether the evidence

      supported his convictions; (2) whether the trial court abused its discretion when

      it allowed the victims’ grandmother to testify as a rebuttal witness; (3) whether

      Newman received ineffective assistance of trial counsel; and (4) whether his

      sentence was inappropriate. Newman v. State, No. 12A05-0608-CR-421 at *1

      (Ind. Ct. App. June 12, 2007), trans. denied. This Court affirmed his convictions

      and sentence by Memorandum Decision. Id. at *11.


[4]   In 2010, Newman filed a petition for post-conviction relief (“PCR”), asserting

      that, for a number of reasons, his trial counsel and his appellate counsel were




      Court of Appeals of Indiana | Memorandum Decision 12A02-1601-PC-83 | December 21, 2016   Page 2 of 7
ineffective.1 PCR. App. at 39-40, 44-45. In August 2012, the trial court held an

evidentiary hearing at which Newman and his trial counsel, Bradley Mohler

(“Mohler”), testified. In December 2015,2 the post-conviction court issued

Findings of Fact and Conclusions of Law Denying Post-Conviction Relief

(“Order”). PCR App. at 6-14. The post-conviction court’s Order included the

following:

         24. The effectiveness of trial counsel was litigated on direct
         appeal. As a result, the doctrines of res judicata and waiver
         prevent litigating it again through PCR.


                  If a claim of ineffective assistance of counsel has been
                  litigated on direct appeal, it is not available in post-
                  conviction proceedings[.] . . . If a claim of ineffective
                  assistance of trial counsel is presented upon direct appeal,
                  all specific allegations fitting within that category that are
                  not presented on direct appeal are waived.


         Consequently the itemization of facts claimed to support a view
         that Mohler’s performance fell below acceptable standards are
         waived and may not be raised in this PCR even if different than
         those enumerated on direct appeal.




1
  We note that, while Newman raised the issue of ineffectiveness of appellate counsel in his petition for post-
conviction relief, PCR App. at 39, and the post-conviction court determined that Newman was not entitled to
relief on that issue, id. at 12-13, Newman does not challenge that decision in his appeal. Thus, the issue is
not before us.
2
 We note the extended length of time that the matter was pending. The CCS indicates that following the
August 2012 hearing on Newman’s post-conviction petition and extending into mid-2015, there were
ongoing discovery disputes, hearings/conferences, and continuances. PCR App. at 2-4. In June 2015, the
parties submitted proposed Findings of Fact and Conclusions of Law, and the post-conviction court’s ruling
was issued thereafter, in December 2015.

Court of Appeals of Indiana | Memorandum Decision 12A02-1601-PC-83 | December 21, 2016              Page 3 of 7
      Id. at 14 (internal case citations omitted). Newman now appeals.


                                     Discussion and Decision
[5]   Defendants who have exhausted the direct appeal process may challenge the

      correctness of their convictions and sentence by filing a post-conviction petition.

      Ind. Post-Conviction Rule 1(1); Craig v. State, 804 N.E.2d 170, 172 (Ind. Ct.

      App. 2004). Post-conviction proceedings do not afford the petitioner an

      opportunity for a super appeal, but rather, provide the opportunity to raise

      issues that were unknown or unavailable at the time of the original trial or the

      direct appeal. Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied,

      534 U.S. 1164 (2002). As a general rule, if an issue was known and available,

      but not presented upon direct appeal, it is waived. Craig, 804 N.E.2d at 172. If

      it was presented upon direct appeal, but decided adversely, it is res judicata. Id.

      The petitioner for post-conviction relief bears the burden of establishing

      grounds for relief by a preponderance of the evidence. P-C.R. 1(5).


[6]   When a petitioner appeals a denial of post-conviction relief, he appeals a

      negative judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007),

      trans. denied. The petitioner must establish that the evidence as a whole

      unmistakably and unerringly leads to a conclusion contrary to that of the post-

      conviction court. Id. We will disturb a post-conviction court’s decision as

      being contrary to law only where the evidence is without conflict and leads to

      but one conclusion, and the post-conviction court has reached the opposite

      conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans.


      Court of Appeals of Indiana | Memorandum Decision 12A02-1601-PC-83 | December 21, 2016   Page 4 of 7
      denied. We accept the post-conviction court’s findings of fact unless they are

      clearly erroneous, and no deference is given to its conclusions of law. Fisher,

      878 N.E.2d at 463.


[7]   Here, Newman claims that the post-conviction court erred in denying his

      petition for post-conviction relief, arguing that he received ineffective assistance

      of trial counsel. Specifically, he contends that his trial counsel was ineffective

      for failing to (1) move for a mistrial based on a violation of the separation of

      witnesses order; (2) request a mistrial after it was learned that a juror knew a

      State’s witness; (3) request a change of venue and/or change of judge based on

      bias in the community against Newman; and (4) object to the victims’ mother’s

      testimony on the basis that she was biased against Newman or cross-examine

      her regarding inconsistencies in her testimony. See Appellant’s Br. at 7-13. The

      State maintains that Newman has forfeited his post-conviction ineffective

      assistance of trial counsel claims because he already raised the issue of

      ineffective assistance of trial counsel on direct appeal. We agree.


[8]   In Woods v. State, 701 N.E.2d 1208 (Ind. 1998), cert. denied, 528 U.S. 861 (1999),

      our Supreme Court held that claims of ineffective assistance of counsel could be

      litigated in post-conviction proceedings if, but only if, not litigated on direct

      appeal.3 See also Landis v. State, 749 N.E.2d 1130, 1133 (Ind. 2001) (“[I]f a claim

      of ineffective assistance of counsel has been litigated on direct appeal, it is not



      3
       “Prior to Woods, there was debate over whether a claim of ineffective assistance of counsel was or was not
      waived if not raised on direct appeal.” Landis v. State, 749 N.E.2d 1130, 1132 (Ind. 2001).

      Court of Appeals of Indiana | Memorandum Decision 12A02-1601-PC-83 | December 21, 2016            Page 5 of 7
available in post-conviction proceedings[.]”). We recognize that, on direct

appeal, Newman asserted that his trial counsel was ineffective for reasons

different than those that he now raises in his post-conviction appeal.4 However,

the assertion of different allegations of trial counsel error does not save

Newman’s post-conviction claims. Once a defendant chooses to raise a claim

of ineffective assistance of trial counsel, he or she “must raise all issues relating

to that claim, whether record-based or otherwise.” Ben-Yisrayl, 738 N.E.2d at

259 (citing Woods, 701 N.E.2d at 1220). The directive from the Woods decision

was that a defendant “must decide the forum for adjudication of the issue –

direct appeal or collateral review[,]” and “[t]he specific contentions supporting

the claim . . . may not be divided between the two proceedings.” 5 Woods, 701

N.E.2d at 1220; see also Craig, 804 N.E.2d at 173 (“[I]f a defendant presents a

claim of ineffectiveness upon direct appeal, he is foreclosed from subsequently

relitigating that claim, even if based upon different grounds.”) Accordingly,

here, the post-conviction court did not err when it concluded that Newman was

foreclosed from litigating his post-conviction claim of ineffective assistance of

trial counsel and denied his petition for post-conviction relief.




4
  On direct appeal, Newman had claimed that trial counsel was ineffective: (1) in his cross-examination of
the victims by failing to address alleged inconsistencies between deposition and trial testimony; (2) for failing
to object to a juror’s presence as an alternate juror during deliberations; and (3) for failing to mention the lack
of physical evidence to the jury. Newman v. State, No. 12A05-0608-CR-421 at *9 (Ind. Ct. App. June 12,
2007), trans. denied.
5
 The Woods Court observed that, “[a]s a practical matter, this rule will likely deter all but the most confident
appellants from asserting any claim of ineffectiveness on direct appeal.” Woods v. State, 701 N.E.2d 1208,
1220 (Ind. 1998).

Court of Appeals of Indiana | Memorandum Decision 12A02-1601-PC-83 | December 21, 2016                 Page 6 of 7
[9]   Affirmed.


      May, J., and Crone, J., concur




      Court of Appeals of Indiana | Memorandum Decision 12A02-1601-PC-83 | December 21, 2016   Page 7 of 7
