Gary Lee Beason v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
May 07 2018, 9:26 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
James C. Spencer Curtis T. Hill, Jr.
Madison, Indiana Attorney General of Indiana
Ian McLean
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gary Lee Beason, May 7, 2018
Appellant-Defendant, Court of Appeals Case No.
48A02-1701-PC-112
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Angela Warner
Appellee-Plaintiff. Sims, Judge
Trial Court Cause No.
48C01-1506-PC-13
Robb, Judge.
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Case Summary and Issue
[1] Gary Lee Beason appeals the denial of his petition for post-conviction relief.
He raises two issues for our review, which we consolidate and restate as
whether the post-conviction court erred in denying his petition for post-
conviction relief. Concluding the post-conviction court did not err in denying
his petition, we affirm.
Facts and Procedural History
[2] We summarized the facts of this case in Beason’s direct appeal:
The facts most favorable to the judgment are that on April 18,
1995, Karen Beason took four of her five children to a police
substation in Anderson, Indiana. Karen was disoriented and
confused and was admitted to the stress unit at Community
Hospital. The Madison County Division of Family and Children
took custody of the children in order to provide them with foster
care.
Pursuant to the intake process of the Division, the children were
asked questions regarding improper sexual contact. J.G. and
K.G., two of Karen’s children, gave answers which indicated that
they had been molested. Evidence provided from a subsequent
investigation indicated that Karen’s brother-in-law, Gary Lee
Beason (Beason), had molested the two girls several times. K.G.
was born on July 5, 1984. J.G. was born on December 31, 1985.
In May 1995, Detective Kevin Smith was notified by Child
Protective Services of the sexual abuse allegations regarding K.G.
and J.G. Smith arranged for the children, who had been
returned to Karen, to be removed from the home. Smith also
arranged for a videotaped interview of K.G. and J.G. during
which each girl repeated her claim of improper sexual contact by
Beason. A medical examination of K.G. and J.G. confirmed
that each girl had suffered penetrating injuries to her genitals.
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Exhibits, Volume V at 63-64.
[3] On July 7, 1995, the State charged Beason with ten counts of child molesting as
Class B felonies and one count of child molesting as a Class C felony. Beason’s
jury trial was held from August 16, 1995 through August 22, 1995. The jury
found Beason guilty as charged and the trial court sentenced Beason to an
aggregate sentence of 208 years in the Indiana Department of Correction.
[4] A significant number of the facts pertinent to Beason’s petition for post-
conviction relief occurred prior to his trial. After being arrested and charged
with child molesting, Beason exercised his constitutional right to a speedy trial
and the trial court scheduled his trial for August 10, 1995. On July 26, 1995,
Beason’s appointed counsel, R.C. Dixon, requested a continuance due to a
previously planned vacation from August 3 through August 14. The trial court
granted the motion and scheduled a new trial date of August 16, 1995. On
August 2, 1995, Dixon filed another motion for a continuance. The trial court
did not grant the continuance and Dixon went on vacation.
[5] On August 14, 1995, the trial court held a hearing to discuss the issue of
Beason’s speedy trial. The trial court had been informed that Mr. Dixon was
“going to be back the 14th of August” and Beason was transported to court
from jail for the hearing. Record of Proceedings, Volume 1 at 133. Mr. Dixon
returned late that day and was not present at the hearing.
[6] The trial court held a pretrial hearing on August 15, 1995, at which Mr. Dixon
was present and both he and Beason addressed the court.
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[Beason]: [O]n August the 14th I stated that I wasn’t
happy with Mr. Dixon at all. The same thing
. . . he is not ready to go into trial and we are
ready to pick a jury. I asked for a fast and
speedy trial, I didn’t want to sit over at that
jail for eight (8) months to a year waiting to
go to trial.
[Trial Court]: Well what is your point?
[Beason]: I am not satisfied with the help that I have
got from this lawyer at all. To go into the
Jury trial right now is just hanging me. He is
not ready to take and get my witnesses here.
He has not heard my case, nothing. All he
has got, the motions that I asked him to file I
don’t believe have been filed. . . .
[Trial Court]: I don’t know, it seems to me we are wasting
time Mr. Beason because I told you yesterday
under Criminal Rule #4 when you asked for
a speedy trial I have to try you within seventy
(70) days. I don’t have any choice. I have
got two (2) major cases. I told you I have got
Kevin Carter and I have got State versus
Weatherford and they are going to take the
bigger part of two (2) maybe three (3) months
to conclude. You asked for a speedy trial.
You didn’t withdraw it. I have no option but
to go to trial. So the problem is not Mr.
Dixon, the problem is you. . . .
***
Mr. Dixon: Your Honor, I want to address the motion I
filed for a continuance. As I advised the
Court when I requested the motion for
continuance that I was going to be out of
town. Now I understood, I thought I
understood you to say that it would be
continued to . . . I was thinking the 15th of
September.
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[Trial Court]: Well I don’t know where you got that idea
Mr. Dixon because I started Kevin Carter on
September the 5th and under Criminal Rule
#4 as you and I know and Mrs. Sauer knows
and now Mr. Beason knows I have to try Mr.
Beason within seventy (70) days or the
charges are dismissed. . . . So you can’t have
it both ways sir.
[Beason]: I am not asking for . . .
[Trial Court]: If you want a speedy trial you are going to get
a speedy trial.
[Beason]: I am asking for a lawyer that is going to be
working for me.
[Trial Court]: Well fine, your objection is noted. Your
motion for continuance is denied. I have no
choice Mr. Dixon. If I get into Kevin Carter
then I am in the middle of November or
December. I have no choice. It was Mr.
Beason’s obligation to withdraw his motion
for a speedy trial and he didn’t do it and we
are going to trial today. . . . I will give you all
the time in the world to talk. You want to
see these tapes, I have already told you we
will do it over the lunch hour. I had him here
yesterday, but you apparently got back late. .
..
[Beason]: And I didn’t get a chance to talk to him
yesterday.
[Trial Court]: The problem was caused by Mr. Beason’s
demand for a speedy trial not by me and not
by Mr. Dixon.
[Beason]: I just don’t want to sit over there for a year.
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[Trial Court]: Fine, I don’t have any problem with that sir,
it is a right that you have that we are going to
take care of you. Anything else gentlemen?
Mr. Dixon: I guess I just want to make sure the record
reflects your Honor that I have visited Mr.
Beason in jail three (3) times . . .
[Beason]: Twice.
Mr. Dixon: Before I left town. He has steadfastly told me
that he had evidence that would prove his
innocence. To date I haven’t received
anything from him, not even this witness list
that he keeps mentioning. So I am dealing
with an uncooperative defendant.
[Trial Court]: I prefer not to get involved in that . . . .
[Beason]: Your Honor there is a conflict between Mr.
Dixon and myself. There has been to day
one.
[Trial Court]: Mr. Beason?
[Beason]: Yes sir?
[Trial Court]: Our problem is caused from your insistence
to have a speedy trial.
[Beason]: I just don’t want to sit there for a year your
Honor.
[Trial Court]: I tried to explain to you that I don’t have any
room to maneuver here. I am not going to
have these charges dismissed by the Supreme
Court because I didn’t bring you to trial
within seventy (70) days. If we don’t do it
now it is going to be November or December
before I have the time. So we are going to
trial this morning and that is it. . . .
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***
[Trial Court]: Okay, so that is your discovery gentlemen. I
will make time for you over the noon hour or
later this afternoon if you wish to . . . you
know it is obvious to all of us and perhaps
you need to be reminded that the State has to
go first. You will have plenty of time to put
your case together. I will even give you a
continuance in the middle of trial if you wish,
an adjournment for a day or so, if that will be
helpful. I intend to be very cooperative with
you gentlemen. I realize the time pressure
you are under. . . . I realize that everything
cannot go according to plan but it is . . . this
is brought about by Mr. Beason requesting a
speedy trial which I am obligated to honor.
[Beason]: I just have a problem sitting here in jail
waiting to go to trial. That is the reason I
asked for the fast and speedy trial.
[Trial Court]: Yes sir and your concerns have been met and
you are getting a speedy trial.
Id. at 110-17. The parties then conducted voir dire and selected a jury before
reconvening on the record.
[Trial Court]: Alright, is there anything else now Mr. Dixon
we can take up this evening before we
adjourn?
Mr. Dixon: Yes, your Honor. We would like for the
record to reflect your Honor that Mr. Beason
was brought to Court yesterday without
benefit of counsel, without counsel even
being in the State for that matter and that Mr.
Beason tells me that he was not aware that
yesterday that he should ask that he withdraw
his speedy trial request and that that request
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was indeed made today. And your Honor we
want the record to reflect that Mr. Beason
still wants to withdraw his speedy trial
request.
[Trial Court]: Well we were told you were going to be back
the 14th of August so I added [Beason] to the
list so he could talk to you about that very
issue . . . so I mean no disrespect to you Mr.
Dixon because there was nothing on the
calendar. I just had him brought over in the
event you were here. . . . You weren’t here
and that is fine. But the . . . okay he wanted
to withdraw his speedy trial and he never
mentioned a thing about it sir. He never said
a thing. I guess the record should reflect I
was here and Mrs. Sauer was here and he
didn’t say a thing about it did he Mrs. Sauer?
[State]: No sir, and if I remember correctly your
Honor went to great length to discuss with
Mr. Beason that he understood that the
reason we were going to trial tomorrow was
his choice because he had requested a speedy
trial and any of his other problems were
related to the speedy trial request just as we
did this morning. It was very much the same
thing as this morning and I think your Honor
made it quite clear that there was certainly an
option for Mr. Beason at any time to say that
he didn’t want to go to trial that he wanted to
get better prepared and he chose that he
wanted to have a trial today.
[Trial Court]: He never mentioned once that he was
withdrawing his request for speedy trial Mr.
Dixon and I am sorry if there is any
confusion but the confusion is not mine. It is
no [sic] of my making and I have no choice
because of these other lengthy, intense, high
profile cases that are going to take into
probably November. I had no choice. He
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demanded a speedy trial so today was the day
we have to go. And so that is it. We got our
Jury. . . .
***
Mr. Dixon: Your Honor I have . . . well that brings up
another matter your Honor?
[Trial Court]: Yes sir?
Mr. Dixon: As you know I have not had time to really
confer with my client.
[Trial Court]: Why haven’t you? . . . I know you talked to
him from 9:00 o’clock till a quarter till eleven
this morning almost non-stop . . . . [Y]ou are
trying to leave the impression that I have not
allowed you the time to talk with your client.
That is certainly not true. I am not sure what
your point is.
Mr. Dixon: I am not trying. I am definitely leaving an
impression your Honor that I need more time
in order to prepare for this case.
[Trial Court]: I understand that.
Mr. Dixon: I don’t . . . .
[Trial Court]: We have been down that road . . . .
Id. at 133-35, 139-40. Following this colloquy, the parties entered into a
discussion concerning discovery.
Mr. Dixon: In response to the State’s allegations your
Honor, we would say it again, as far as
discovery is concerned we received discovery
this morning. Certainly it is not adequate
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time for us to go over anything with my
client.
[State]: Discovery was provided over a week ago and
unfortunately Mr. Dixon was out of town.
***
Mr. Dixon: The only thing we had was the information.
[State]: I discussed with Mr. Dixon everything that
there was and I further told him that there
was [sic] medical reports that I would be
providing and those were provided more than
a week ago.
[Trial Court]: And even . . .
Mr. Dixon: In my absence.
[Trial Court]: And even your client this morning was
complaining because he didn’t have copies of
statements but there aren’t any statements.
The statements are videos.
[Beason]: But isn’t the doctor’s statement still
considered a statement? I mean . . .
[Trial Court]: Read my lips. I am George Bush. She gave
it to your lawyer a week ago.
[Beason]: Oh.
[State]: Unfortunately Mr. Dixon was on vacation
which I can’t . . . I am not saying that Mr.
Dixon shouldn’t have gone on vacation, he
had a vacation planned and that is fine, I am
just saying that I just provided those[.]
[Trial Court]: My instincts tell me that he probably took
those with him. In any event . . .
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Mr. Dixon: Your Honor, let me clarify your instincts.
[Trial Court]: Yes sir.
Mr. Dixon: I have been out of town since the 3rd,
discovery was placed in . . . file marked on
the 7th. I did not get any discovery until this
morning.
[Trial Court]: Okay, great. The lady said she gave them to
you more than a week ago, that is true, she
did.
Mr. Dixon: Discovery when I am not available to receive
it is not giving it to me.
[Trial Court]: Well I am sorry Mr. Dixon I would . . . next
time I will make arrangements to have them
shipped by Federal Express, just tell us where
to send them. I will be happy to cooperate in
anyway [sic] Mr. Dixon.
Mr. Dixon: Well next time doesn’t help [Beason] any this
time.
[Trial Court]: Alright.
***
Mr. Dixon: [Y]our Honor, as we have pointed out on
several times . . ., we have been operating
with a severe time disadvantage here. We
did ask for a continuance on this trial and we
did ask for a . . .
[Trial Court]: You never asked for a continuance of the
trial, you only asked for a continuance after I
had the Jury selected.
[State]: No he asked for a continuance of the trial last
week.
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Mr. Dixon: Your Honor, I asked for a continuance before
I left town.
[Trial Court]: Well that is right, that is right, but your client
didn’t.and [sic] I made it perfectly clear I am
in a bind. If I grant the continuance I can’t
try it till November or December. And I told
you myself, get your client to sign it and he
didn’t. Had that been done I would have
granted your continuance. But I can’t have it
both ways. I can’t have one of you saying I
want to go to trial and the other one saying I
want a continuance because I will lose. It is
what the client wants that the Court looks at.
If he had signed that motion for continuance
I would have granted it. But he didn’t. I am
stuck.
Id. at 143-46, 180-81. Beason’s jury trial commenced the next day and, as
noted, the jury found Beason guilty as charged and he was sentenced to 208
years in the Department of Correction. The trial court appointed William
McCarty as Beason’s appellate counsel.
[7] Beason’s direct appeal raised four issues: 1) whether the prosecutor committed
prosecutorial misconduct; 2) whether Beason received ineffective assistance of
trial counsel; 3) whether the trial court abused its discretion in finding
aggravating sentencing factors; and 4) whether Beason’s sentence was
unreasonable. See Exhibits, Vol. V at 11, 63. With respect to Beason’s
argument concerning the effectiveness of his counsel, Beason argued his trial
counsel was ineffective for failing to object to the State’s closing argument. We
affirmed Beason’s convictions and sentence. Beason v. State, No. 48A02-9512-
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CR-775, slip op. at 14 (Ind. Ct. App. Feb. 27, 1997); see also Exhibits, Vol. V at
75.1
[8] In April of 2001, Beason, pro se, filed his petition for post-conviction relief and
a public defender was appointed. In May of 2005, the public defender’s office
withdrew its appearance from the case. In June of 2012, Beason withdrew his
petition without prejudice. On June 15, 2015, Beason, with the benefit of
counsel, filed his second petition for post-conviction relief. In his petition for
post-conviction relief, Beason alleged 1) he was denied effective assistance of
trial counsel; 2) he was denied effective assistance of appellate counsel; 3) he
was denied due process in violation of the Fourteenth Amendment to the U.S.
Constitution; and 4) he was subjected to a critical hearing the day before his
trial without the benefit of counsel in violation of the Fifth, Sixth, and
Fourteenth Amendments to the U.S. Constitution and Article 1, Sections 12
and 13 of the Indiana Constitution. The post-conviction court held an
evidentiary hearing on March 28, 2016, at which both Mr. Dixon and Mr.
McCarty testified. Mr. Dixon testified as follows:
[Counsel for Petitioner]: Were you prepared to go to trial?
[Mr. Dixon]: Based on . . . the transcript, actually
no.
***
1
On Beason’s ineffectiveness claim, this court did not address trial counsel’s performance but concluded that
Beason suffered no prejudiced from the prosecution’s closing argument. Beason, No. 48A02-9512-CR-775,
slip op. at 11; see also Exhibits, Vol. V at 72.
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[Counsel for Petitioner]: Do you think that . . . Judge Spencer
was . . . impartial when it came to
child molest cases?
***
[Mr. Dixon]: I did not think that he was impartial in
general, so.
***
[Counsel for Petitioner]: [B]ut you do admit, Mr. Dixon, that
you were not prepared for this trial? Is
that correct?
[Mr. Dixon]: I coulda used more time for sure.
Transcript, Volume I at 30-31, 43. And Mr. McCarty testified:
[Counsel for Petitioner]: You raised the issue of ineffective
assistance of counsel on appeal. Uh, is
there any reason what – or did you
consider . . . evading that issue and
waiting for post-conviction relief?
[Mr. McCarty]: I did not. I did not.
[Counsel for Petitioner]: [D]o you recall whether or not that
was an issue of some controversy even
back in nineteen (19) ninety-six (96)?
[Mr. McCarty]: About when those issues should be
raised? . . . [Y]es. There was some
debate about that, but I, I felt a
responsibility to raise the issue.
***
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[Counsel for Petitioner]: Even if the issue of ineffective
[assistance of trial counsel] is an issue
that you raised. You don’t believe that
you avoided other . . . issues as far as
the ineffectiveness of trial counsel?
[Mr. McCarty]: No.
***
[Counsel for Petitioner]: [W]ith the . . . argument of ineffective
assistance of trial counsel . . . do you
agree that, uh, you, you didn’t raise
any issue with respect to lack of
preparation?
[Mr. McCarty]: I did not raise that issue of lack of
preparation.
[Counsel for Petitioner]: Or the fact that trial counsel had no
opportunity to review, uh, discovery
prior to trial?
[Mr. McCarty]: Uh, that was not raised in the appeal.
***
[State]: When you write an appeal, can you
raise every issue that you think might
be there?
[Mr. McCarty]: [P]erhaps I should explain my
approach on appeals. Which was not
to throw everything up against the wall
and to see what stuck, I mean, this was
a, a general approach . . . . But, but
the general approach was to try to
target the most significant . . . events of
a trial that could be challenged, and
narrow the focus and, and, and get the
Appellate Court to focus on three (3)
to five (5), issues that I thought were
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paramount. . . . I felt over time, that
the best success I had was in narrowing
the focus to the . . . certain – a handful
of issues, and . . . having the Appellate
Court focus on that.
***
[State]: Did you present to the Appellate Court
what you thought had the best [sic] of
succeeding for Mr. Beason?
[Mr. McCarty]: Yes, absolutely, I did.
[State]: And does your mind change on that
any today?
[Mr. McCarty]: No. Uh, I, I – in reviewing all of this,
uh, do I second guess myself? Do we
all do that? Yes, but, but no. I, I feel
that the issues that were the best issues
were raised at the Appellate Court. I
do.
Id. at 51-52, 56, 58, 62, 68-69.
[9] On December 16, 2016, the post-conviction court issued its findings of fact and
conclusions thereon denying Beason relief. The post-conviction court
determined Beason’s allegation of ineffective assistance of trial counsel was res
judicata and, even if it was not res judicata, Beason failed to demonstrate
deficient performance by his trial counsel. With respect to his claim of
ineffective assistance of appellate counsel, the post-conviction court determined
counsel’s performance was within the wide range of professional competence.
Finally, the post-conviction court determined Beason’s claims were barred by
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the doctrine of laches. Beason now appeals. Additional facts will be added as
necessary.
Discussion and Decision
I. Standard of Review
[10] An Indiana appellate court will not reverse a post-conviction court’s denial of
post-conviction relief unless the evidence is without conflict and leads only one
conclusion, and the post-conviction court reached the opposite conclusion.
McCary v. State, 761 N.E.2d 389, 391-92 (Ind. 2002). The post-conviction
petitioner bears the burden of proof to convince the appellate court that the
evidence as a whole leads unerringly and unmistakably to a decision opposite
that reached by the post-conviction court. Id. at 391; see Ind. Post-Conviction
Rule 1(5) (“[T]he petitioner has the burden of establishing his grounds for relief
by a preponderance of the evidence.”). We review the post-conviction court’s
factual findings for clear error, but we owe no deference to its conclusions of
law. Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013).
[11] Post-conviction proceedings provide a petitioner with the “opportunity to raise
issues that were not known at the time of the original trial or that were not
available on 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 on direct appeal, the issue is waived.
Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839(2002). A petitioner claiming ineffective assistance of trial counsel may choose
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to bring such a claim on direct appeal or in post-conviction proceedings. Jewell
v. State, 887 N.E.2d 939, 941 (Ind. 2008). The appellate resolution of
petitioner’s ineffectiveness claim is res judicata if raised on direct appeal and
decided adversely. Id. In such a case, however, a petitioner may still allege
ineffective assistance of appellate counsel in bringing a claim of ineffective
assistance of trial counsel on direct appeal. McCary, 761 N.E.2d at 392-93.
II. Post-Conviction Relief
A. Ineffective Assistance of Appellate Counsel
[12] Beason first contends he received ineffective assistance of appellate counsel on
direct appeal. Specifically, Beason alleges appellate counsel was ineffective for
“raising the issue of ineffective assistance of trial counsel on direct appeal and
then raising it incompletely.” Brief of Appellant at 13.
[13] The standard of review for a claim of ineffective assistance of appellate counsel
is identical to that of ineffective assistance of trial counsel. Lowery v. State, 640
N.E.2d 1031, 1048 (Ind. 1994), cert. denied, 516 U.S. 992 (1995). Beason must
first demonstrate appellate counsel performed deficiently. Id. In this regard,
Beason must overcome the strongest presumption that appellate counsel
delivered adequate assistance and we are highly deferential to counsel’s
selection and presentation of the issues. Ben-Yisrayl, 738 N.E.2d at 260-61.
Second, Beason must show appellate counsel’s performance prejudiced him.
Id. at 260. To establish the element of prejudice, Beason must show that there
is a reasonable probability that, but for his appellate counsel’s unprofessional
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errors, the result of the proceeding would have been different. Id. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.
Id.
[14] Appellate counsel’s determination regarding the selection of issues and what
arguments to raise is one of the most important strategic decisions made by
counsel in that role. Id. at 261. Counsel must make difficult judgment calls in
narrowing a broad range of possible claims to a select few that are thought to
have the best opportunity for success. Woods v. State, 701 N.E.2d 1208, 1221
(Ind. 1998), cert. denied, 528 U.S. 861 (1999). In narrowing the issues,
potentially valid claims may be eliminated by strategic judgment so that the
perceived strongest contentions are not diluted. Id. In assessing counsel’s
performance and the strategic decision to include or exclude certain issues, this
court defers to appellate counsel’s judgment unless the decision was
“unquestionably unreasonable.” Ben-Yisrayl, 738 N.E.2d at 261. Therefore, to
prevail on a claim of ineffective assistance of appellate counsel, Beason must
demonstrate that, based on information known to appellate counsel from the
trial record, appellate counsel failed to present significant and obvious issues
that cannot be explained by any reasonable strategy. Id.
[15] Finally, Beason effectively faces a compound burden in arguing appellate
counsel was ineffective in raising the argument of ineffective assistance of trial
counsel on direct appeal. To satisfy that compound burden, Beason must
establish deficient performance and prejudice separately as to both appellate
counsel and trial counsel. Id. at 261-62.
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[16] Beason’s main complaint regarding the effectiveness of appellate counsel is the
failure to raise the issue of trial counsel’s lack of preparation for trial. Beason
alleges trial counsel’s lack of preparation manifested itself in numerous
individual incidents of deficient performance and that appellate counsel’s
performance was deficient in failing to completely raise this issue. However,
Beason’s brief offers no discussion on how the alleged errors on behalf of trial
or appellate counsel establish prejudice or a reasonable probability the result of
the proceedings would have been different. Beason’s failure to address the issue
of prejudice permits an uncomplicated disposition of the case notwithstanding
the nature of the proceedings.
[17] Moreover, we are not persuaded that appellate counsel’s selection and
presentation of the issues in this case was “unquestionably unreasonable.” Id.
at 261. At the post-conviction hearing, appellate counsel stated his belief that
he presented the issues on appeal that had the best chance of success for Beason
and he did not exclude any other valid issues of ineffective assistance of trial
counsel. See Tr., Vol. I at 56, 68. Appellate counsel’s stated strategy on appeal
was not to “throw everything up against the wall and to see what stuck . . . [his]
general approach was to try to target the most significant . . . flaws and most
significant . . . events of a trial that could be challenged . . . .” Id. at 62.
[18] With respect to the incidents which Beason alleges appellate counsel should
have also raised in his ineffective assistance of trial counsel claim, they are
either meritless, not based in fact, or require more evidence to determine their
truth. We address each of Beason’s concerns in turn.
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[19] Beason argues appellate counsel was ineffective for failing to address trial
counsel’s cross-examination of J.G. and K.G. Beason suggests trial counsel did
not review videotapes of J.G.’s and K.G.’s prior statements to police until after
they testified. Beason suggests the videotapes contain favorable impeachment
evidence. However, the alleged videotapes of J.G. and K.G.’s prior statements
were not entered into evidence and are not in the record before us. Thus,
appellate counsel’s performance was not deficient in failing to raise this
argument. See Seeley v. State, 782 N.E.2d 1052, 1061 (Ind. Ct. App. 2003)
(holding appellate counsel’s performance was not deficient in failing to search
for issues outside the record), trans. denied, cert. denied, 540 U.S. 1020 (2003).
Moreover, the trial transcript strongly suggests trial counsel reviewed the
videotapes before K.G. and J.G.’s testimony and appellate counsel was not
ineffective in failing to raise this issue. See Record of Proceedings, Vol. 1 at
177, 183-84 (trial court permitting trial counsel to view the tapes at lunch and
arranging equipment and room for them to work in); Record of Proceedings,
Vol. 4 at 802-03 (trial court and the State confirming trial counsel saw the
videotapes).2
[20] Beason next contends that appellate counsel should have included the issue of
trial counsel’s failure to investigate his claims that J.G. and K.G. had made
prior allegations of molestation in the past by “two other persons connected
2
We further note, because the videotapes are not in the record before us, the only account of their content is
Beason’s testimony at the post-conviction hearing, which the post-conviction court was not required to
believe. Daugherity v. State, 547 N.E.2d 1116, 1118 (Ind. Ct. App. 1989).
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with their mother.” Br. of Appellant at 19. He further suggests a 1992 medical
examination contradicts the 1995 medical examination performed on J.G. and
K.G. that concluded they suffered hymeneal injury. The results of the alleged
medical examinations in 1992 were inconclusive. See Record of Proceedings,
Vol. 4 at 1024. But again, no such medical report exists in the record before us
and we decline to find appellate counsel ineffective for failing to search outside
the record. Moreover, it appears the medical report to which Beason refers was
conducted in response to allegations by J.G. and K.G. that he had molested
them in 1992. Id. at 1014-24. Nonetheless, the evidentiary value of such a
report is low. “Inconclusive” results in a medical examination would not
demonstrate, as Beason appears to suggest, that J.G. and K.G. were lying or
being untruthful in 1995. Nor would it show their underlying allegations
against Beason in 1992 were demonstratively false. Appellate counsel was
therefore not deficient in failing to include this issue on direct appeal.
[21] Beason also contends appellate counsel performed deficiently in failing to
address trial counsel’s failure to object to Final Jury Instruction No. 3. This
instruction reads, “A conviction may be sustained by the uncorroborated
testimony of a single witness.” Exhibits, Vol. 1 at 61. In 2003, our supreme
court held the giving of this jury instruction is error after having been upheld
since at least 1980. Ludy v. State, 784 N.E.2d 459, 460 (Ind. 2003). Beason’s
trial was conducted in 1995 and we have held trial counsel is not ineffective for
failing to anticipate changes in the law. Overstreet v. State, 877 N.E.2d 144, 161-
62 (Ind. 2007) (holding “counsel’s representation cannot be deemed to have
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fallen below an objective standard of reasonableness for failing to anticipate a
change in the law”), cert. denied, 555 U.S. 972 (2008). Accordingly, because
appellate counsel is unlikely to have succeeded on this issue if it were raised, we
decline to find appellate counsel’s exclusion of this issue constituted deficient
performance.3
[22] Finally, we address Beason’s contention that trial counsel was unprepared for
trial. A significant portion of Beason’s brief addresses trial counsel’s lack of
preparation for trial and a large portion of the transcript from the hearing the
day prior to trial is quoted above in the “Facts and Procedural History.” From
the transcript, it is clear trial counsel intended to leave the impression he needed
more time to prepare for trial and we agree with Beason in this regard.
[23] However, as repeatedly noted by the trial court, it was required to conduct
Beason’s trial because he never withdrew his speedy trial request. The trial
court explained at great length that the court’s calendar was congested and it
would be several months, and outside of the seventy-day period for Indiana
3
Beason also alleges trial counsel “failed to object to State’s evidence of uncharged crimes committed by
Beason.” Br. of Appellant at 19. This argument is unsupported by any citation to relevant case law, statute,
or other authority and we accordingly find it to be waived. See Smith v. State, 822 N.E.2d 193, 202–03 (Ind.
Ct. App. 2005) (“[A] party waives any issue raised on appeal where the party fails to develop a cogent
argument or provide adequate citation to authority and portions of the record.”), trans. denied. Additionally,
Beason takes issue with being present in the trial court on August 14, two days before his trial, without
counsel. The trial court clarified to trial counsel the court was told he would be back from vacation on
August 14 and the trial court had Beason brought to court in case trial counsel arrived. See Record of
Proceedings, Vol. 1 at 133-35. The transcript from August 14 is not included in the record, but from what we
can gather, the trial court simply tried to impress upon Beason they were going to trial unless he withdrew his
speedy trial request. Beason did not do so until the jury was impaneled the next day and now complains of
his trial counsel’s preparation.
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Rule of Criminal Procedure 4, before Beason would be tried if the trial were to
be continued. See Ind. Crim. Rule 4(B)(1); see also Jackson v. State, 663 N.E.2d
766, 770 (Ind. 1996) (discharging a defendant for failing to bring him to trial
within seventy days of his motion for a speedy trial).
[24] Moreover, Beason never attempted to withdraw his request for a speedy trial
until after a jury had been selected. See Record of Proceedings, Vol. 1 at 135.
At that point, the trial court refused to grant a continuance. Beason was fully
aware that trial counsel went on vacation prior to trial and would return shortly
before the trial’s scheduled commencement, yet Beason still adamantly
informed the trial court he wanted to go to trial and did not want to sit in jail
awaiting a trial. Given the severity of the charges, Beason’s decision was ill-
advised.
[25] But, as the trial court stated, Beason cannot have it both ways. He demanded a
speedy trial with full knowledge that his trial counsel would be absent the week
before trial. Beason cannot place his trial counsel between a rock and a hard
place and then complain following an adverse result. The trial court made it
clear to Beason and trial counsel he would have granted a continuance had
Beason signed the motion for a continuance. Beason never did and never
requested to withdraw his speedy trial request until after a jury had been
impaneled.
[26] In sum, while Beason has brought numerous issues to our attention that he
alleges constitute deficient performance on the part of appellate and trial
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counsel, many of the issues are meritless, brought about by his demand for a
speedy trial, or require more evidence in the record before the post-conviction
court and this court on appeal. This court defers to appellate counsel’s strategic
judgment on issue selection and presentation unless it was “unquestionably
unreasonable” and we cannot say appellate counsel performed deficiently on
the issue of ineffective assistance of trial counsel. Ben-Yisrayl, 738 N.E.2d at
261.
B. Fundamental Error
[27] Beason also claims the post-conviction court erred in denying his claim for
relief alleging fundamental error. All of the issues which Beason claims amount
to fundamental error were known and available at the time of direct appeal and
are therefore waived. Timberlake, 753 N.E.2d at 597. Additionally, our
supreme court has concluded freestanding claims of fundamental error may not
be brought in a post-conviction relief proceeding. Sanders v. State, 765 N.E.2d
591, 592 (Ind. 2002). The post-conviction court did not err in denying Beason’s
claim of fundamental error.
Conclusion 4
4
Because of our resolution of the issue of ineffective assistance of appellate counsel, we do not address
Beason’s challenge to the post-conviction court’s judgment that Beason’s petition was barred by the doctrine
of laches.
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[28] The post-conviction court did not err in denying Beason’s petition for post-
conviction relief. Accordingly, we affirm the post-conviction court’s judgment.
[29] Affirmed.
Crone, J., and Bradford, J., concur.
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