Lamarr T. Crittenden v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Jun 30 2015, 10:10 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT, PRO SE ATTORNEYS FOR APPELLEE
Lamarr T. Crittenden Gregory F. Zoeller
Miami Correctional Facility Attorney General of Indiana
Bunker Hill, Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lamarr T. Crittenden, June 30, 2015
Appellant-Petitioner, Court of Appeals Case No.
49A05-1405-PC-227
v. Appeal from the Marion Superior
Court
State of Indiana, Lower Court Cause No.
49G04-0810-PC-227401
Appellee-Respondent.
The Honorable Lisa F. Borges,
Judge
The Honorable Anne Flannelly,
Magistrate
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 1 of 38
Statement of the Case
[1] Lamarr T. Crittenden (“Crittenden”) filed a pro se petition for post-conviction
relief, alleging multiple claims of ineffective assistance of both trial and
appellate counsel. Prior to the post-conviction hearing, the post-conviction
court granted Crittenden’s request for the issuance of subpoenas to his trial and
appellate counsel, but it denied his request to issue subpoenas to four other
proposed witnesses, finding that the testimony of these proposed witnesses was
neither relevant nor probative. The post-conviction court also denied various
discovery motions filed by Crittenden. During the post-conviction hearing,
when Crittenden moved to admit into evidence two Department of Child
Services (“DCS”) reports, the State objected based on a lack of foundation, and
the post-conviction court sustained the objection and ruled that the reports
would not be admitted at that time.
[2] Following the hearing, the post-conviction court issued its findings and
conclusions in which it denied post-conviction relief in part and granted it in
part. Specifically, the post-conviction court concluded that Crittenden’s trial
counsel had rendered deficient performance at sentencing by failing to realize
that the statutory minimum sentence for Class A felony child molesting was
twenty years and by failing to bring the correct sentencing range to the trial
court’s attention, and the post-conviction court concluded that this
“misimpression” was sufficient to show prejudice. As a result, the post-
conviction court ordered that a new sentencing hearing be held. The post-
conviction court also concluded that Crittenden’s appellate counsel had
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 2 of 38
rendered ineffective assistance by failing to raise that sentencing issue on
appeal. In regard to Crittenden’s other allegations of ineffective assistance of
trial and appellate counsel, the post-conviction court concluded that he had
failed to meet his burden of proving these claims, and it denied post-conviction
relief on these remaining claims.
[3] On appeal, Crittenden argues that the post-conviction court erred by: (1)
denying his requests for subpoenas; (2) denying his motions for discovery; (3)
excluding the DCS reports from evidence; and (4) denying post-conviction relief
on his remaining ineffective assistance of trial and appellate counsel claims.
Concluding that the post-conviction court committed no error as alleged by
Crittenden, we affirm the post-conviction court’s judgment.
[4] We affirm.
Issues
1. Whether the post-conviction court abused its discretion by
denying Crittenden’s request to issue four subpoenas.
2. Whether the post-conviction court abused its discretion by
denying Crittenden’s various discovery motions.
3. Whether the post-conviction court abused its discretion by
excluding Crittenden’s proposed evidence of DCS records from
the post-conviction hearing.
4. Whether the post-conviction court erred by denying post-
conviction relief on Crittenden’s remaining claims of ineffective
assistance of trial and appellate counsel.
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 3 of 38
Facts
[5] The facts of Crittenden’s crimes were set forth in the memorandum decision
from his direct appeal as follows:
In 2006, Crittenden began cohabiting with Shontae Matlock and
her daughter D.M., born February 8, 1999, on Denny Street in
Indianapolis. On one occasion during 2007 or 2008, Crittenden
entered D.M.’s bedroom while she was sleeping and ordered her
to perform fellatio on him. When she refused, Crittenden placed
his hand inside her vagina and moved it around. He then
performed anal intercourse on her. Crittenden admonished
D.M. not to tell anyone about the incident.
Nevertheless, D.M. told her mother, who refused to believe her
allegations. On May 11, 2008, D.M. reported the incident to her
aunt, Lawanna Smith, who took her to the hospital for a medical
examination.
On October 7, 2008, the State charged Crittenden with two
counts of class A felony child molesting and two counts of class
C felony child molesting. On April 7, 2009, the State filed a
notice of intent to introduce child hearsay statements at trial. On
April 27, 2009, the trial court held a hearing on the matter and
determined that such statements were admissible, subject to
limitations set forth in Tyler v. State, 903 N.E.2d 463 (Ind. 2009).
That same day, Crittenden waived his right to jury trial, and a
bench trial ensued. The trial court found Crittenden guilty of one
count of class A felony child molesting [for putting his penis in
D.M.’s anus] and one count of class C child molesting [for
fondling D.M.]. At the May 26, 2009 sentencing hearing, the
trial court made the following statement:
I want to state this specifically for the record, that
my verdict was based on the child’s testimony, that
I gave no weight in my decision to the statements
that the victim made to [Aunt] Lawanna Smith or
any other individual but only upon her testimony
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 4 of 38
here at trial, which I found to be compelling and
credible.
Tr. at 153 . . . .
Crittenden v. State, No. 49A05-0906-CR-355, *1 (Ind. Ct. App. Jan. 21, 2010)
(footnote omitted), trans. denied.
[6] During Crittenden’s May 26, 2009 sentencing hearing, the trial court stated that
the “minimum amount of time” that Crittenden could receive for his Class A
felony conviction was “thirty years executed.” (Tr. 148).1 Crittenden’s trial
counsel agreed, asked the court to sentence Crittenden to “the absolutely
minimum executed sentence that the Court c[ould,]” and requested that the
trial court sentence him to “thirty years, thirty-five years, suspend five, two of
that [to] probation . . . and the minimum sentence executed in the Department
of Correction[].” (Tr. 152). The trial court sentenced Crittenden to thirty-five
(35) years, with thirty (30) years executed and five (5) years suspended, for his
Class A felony conviction and six (6) years for his Class C felony conviction,
and the trial court ordered that these sentences be served concurrently.
[7] Thereafter, Crittenden appealed his convictions and argued that the State
“failed to present sufficient evidence to establish territorial jurisdiction over his
1
We will refer to the direct appeal transcript as “(Tr.),” the direct appeal appendix as “(App.),” the post-
conviction transcript as “(P-CR Tr.),” and the post-conviction appendix as “(P-CR App.).”
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 5 of 38
case.” Crittenden v. State, No. 49A05-0906-CR-355 at *1. Our Court held that
there was sufficient evidence and affirmed his convictions.
[8] On July 29, 2010, Crittenden filed a pro se petition for post-conviction relief.
Thereafter, the State Public Defender entered an appearance, investigated
Crittenden’s claims, and then, in February 2012, withdrew its appearance
pursuant to Post-Conviction Rule 1(9)(c). Crittenden later filed amended pro se
post-conviction petitions.
[9] Crittenden raised post-conviction claims of ineffective assistance of trial and
appellate counsel, as well as, freestanding claims of error relating his sentence.
Specifically, Crittenden alleged that his trial counsel had rendered ineffective
assistance by: (1) failing to file a motion to dismiss, which he alleged should
have been based on: (a) the probable cause affidavit and charging information
lacking a file stamp; (b) a challenge to the constitutionality of the child
molesting statute; and (c) a challenge to the lack of criminal intent element; (2)
failing to sufficiently investigate his case and to present witnesses (including
character witnesses in favor of Crittenden and witnesses to discredit D.M.’s
testimony); (3) failing to advise him regarding his chances at trial and the
benefits of accepting a plea offer; (4) failing to cross-examine the child victim
and the forensic child interviewer at the pretrial child-hearsay hearing; (5)
failing to admit evidence of two DCS reports;2 (6) failing to object to the
2
One of these DCS reports was written, following a complaint filed on April 1, 2008, regarding a lack of
food, shelter, and clothing in D.M.’s home, while the other report was written, following a complaint filed on
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 6 of 38
admissibility of the victim’s medical exam and entering into a stipulation
regarding the examining nurse’s testimony; (7) being unaware that the statutory
minimum sentence for Class A child molesting was twenty years; and (8) failing
to object—based on Blakely3—to the trial court’s aggravation of his sentence.
[10] In regard to Crittenden’s ineffective assistance of appellate counsel claim, he
alleged that his counsel rendered ineffective assistance by: (1) failing to
sufficiently argue the territorial jurisdictional sufficiency issue raised on direct
appeal; (2) failing to present a separate sufficiency issue on appeal; and (3)
failing to raise sentencing issues, including a challenge that the trial court and
his trial counsel misapplied the law regarding the statutory minimum sentence
for his Class A felony child molesting conviction and a challenge to the
enhancement of his sentence based on Blakely.
[11] During the course of this post-conviction proceeding, Crittenden filed various
discovery motions, which were ultimately denied by the post-conviction court.
These motions included: (1) Requests for Access to Relevant Portions of the
Record (filed August 22, 2012 and March 8, 2013); (2) a Motion to Compel
Release of Documents (filed on November 13, 2012); (3) Request for Access to
Relevant Portions of the Record (filed March 8, 2013); (4) a Request for
Documents, Calculated to Lead to Discovery of Admissible Evidence, Pursuant
May 11, 2008, regarding allegations of sexual abuse against Crittenden that then led to the current charges
being filed against him.
3
Blakely v. Washington, 542 U.S. 296 (2004), reh’g denied.
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 7 of 38
to Trial Rule 34(B) (filed on March 11, 2013); and (5) a Motion for Offer to
Prove (filed on March 21, 2013). When denying some of these motions, the
post-conviction determined that Crittenden had “failed to show how the
requested discovery [wa]s necessary to support his pending post-conviction
relief claims, and he ha[d] not shown that he ha[d] made any effort to obtain
such evidence from his trial counsel’s file or his previously-appointed State
Public Defender.” (P-CR App. 134, 144).
[12] Prior to the post-conviction hearing, Crittenden filed a request for the post-
conviction court to issue subpoenas. He sought to have subpoenas issued to:
(1) his trial counsel; (2) his appellate counsel; (3) the deputy prosecutor from his
bench trial; (4) the nurse who performed a medical exam on the victim and who
did not testify at trial because the parties stipulated that she had examined D.M.
and stipulated that the exam did not reveal any signs of injury to D.M.’s
genitalia;4 (5) a DCS family case manager who did not testify at trial and who
wrote the April 2008 DCS report after she conducted an interview with D.M.
and her mother following a complaint regarding a lack of food, shelter, and
clothing in the home; and (6) a DCS family case manager who did not testify at
trial and who wrote the May 2008 DCS report that contained allegations of
sexual abuse against Crittenden and that led to the current charges being filed
4
Specifically, the parties stipulated that the nurse “examined” D.M. and that D.M. “did not have any
injuries to her genitalia which neither confirm[ed] nor negate[d] the allegations of sexual abuse.” (Tr. 118).
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 8 of 38
against him. Thereafter, the post-conviction court entered an order granting
Crittenden’s request for subpoenas for his trial and appellate counsel and
denying his request for subpoenas for the remaining four witnesses. The post-
conviction court explained that it denied Crittenden’s request for the remaining
witnesses “for the reason that the Court finds that each of these proposed
witness’ testimony is not relevant and probative.” (P-CR App. 209).
[13] On June 18, 2013, the post-conviction court held a hearing on Crittenden’s
petition. During the hearing, at which Crittenden represented himself pro se,
he called his trial counsel and appellate counsel as witnesses. He also testified
on his own behalf. The post-conviction court took judicial notice of its file, the
trial and sentencing transcripts, the appellate briefs, and this Court’s
memorandum decision from Crittenden’s direct appeal.
[14] Crittenden’s trial attorney did not have a specific recollection of the details of
the underlying case. When questioning his trial counsel, Crittenden moved to
admit the two DCS reports that Crittenden stated “were discovered to [his trial
counsel] by [the] Deputy Prosecuting Attorney[.]” (P-CR Tr. 58). The State
noted that the DCS reports appeared to be photocopies, and it objected to the
admission of these reports based on a lack of foundation and lack of self-
authentication. The post-conviction court sustained the objection and stated
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 9 of 38
that the reports would “not [be] admitted at this time.” (P-CR Tr. 59).
Crittenden did not try later to have the reports admitted into evidence. 5
[15] Crittenden questioned his appellate counsel about his decision-making process
when deciding what issue to raise on appeal. When Crittenden asked appellate
counsel if a sufficiency of the evidence issue would have been a more
meritorious issue to raise than the territorial jurisdiction issue, appellate counsel
disagreed. Appellate counsel stated that “there was sufficient evidence to
support the finding of guilty” and that he thought the jurisdictional issue was a
better one to raise. (P-CR Tr. 13).
[16] On May 15, 2014, the post-conviction court issued its findings and conclusions
in which it denied post-conviction relief in part and granted it in part.
Specifically, the post-conviction court concluded that Crittenden’s trial counsel
had rendered deficient performance at sentencing by stating that the statutory
minimum sentence for a Class A felony child molesting conviction was thirty
years instead of twenty years and by failing to bring the correct sentencing range
to the trial court’s attention. The post-conviction court also concluded that this
“misimpression” was sufficient to show prejudice. (P-CR App. 362). As a
result, the post-conviction court ordered that a new sentencing hearing be held.
The post-conviction court also concluded that Crittenden’s appellate counsel
5
These reports, however, appear to be part of the court’s file because the prosecutor submitted them to the
trial court for review prior to the bench trial and then filed a copy of the reports that were sent to Crittenden’s
trial counsel as part of the pre-trial discovery.
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 10 of 38
had rendered ineffective assistance by failing to raise the issue on appeal. In
regard to Crittenden’s other allegations of ineffective assistance of trial and
appellate counsel, the post-conviction court concluded that Crittenden had
failed to prove that he had received ineffective assistance of counsel. Lastly, the
post-conviction court concluded that Crittenden had waived his freestanding
claims of error relating to sentencing.
[17] Crittenden now appeals the post-conviction court’s ruling on his ineffective
assistance of counsel claims, as well as, the court’s rulings on some procedural
issues. Additional facts will be provided when discussing Crittenden’s appellate
arguments.
Decision
[18] Crittenden appeals from the post-conviction court’s order denying post-
conviction relief on his remaining claims of ineffective assistance of trial and
appellate counsel. Our standard of review in post-conviction proceedings is
well settled.
We observe that post-conviction proceedings do not grant a
petitioner a “super-appeal” but are limited to those issues
available under the Indiana Post-Conviction Rules. Post-
conviction proceedings are civil in nature, and petitioners bear
the burden of proving their grounds for relief by a preponderance
of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner
who appeals the denial of PCR faces a rigorous standard of
review, as the reviewing court may consider only the evidence
and the reasonable inferences supporting the judgment of the
post-conviction court. The appellate court must accept the post-
conviction court’s findings of fact and may reverse only if the
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 11 of 38
findings are clearly erroneous. If a PCR petitioner was denied
relief, he or she must show that the evidence as a whole leads
unerringly and unmistakably to an opposite conclusion than that
reached by the post-conviction court.
Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal case
citations omitted), trans. denied.
[19] Before addressing Crittenden’s post-conviction claims, we will first address his
challenges to the post-conviction court’s procedural rulings that occurred during
the course of this post-conviction proceeding. He argues that the post-
conviction court erred in its following rulings: (1) denying his request for the
issuance of four subpoenas; (2) denying his various discovery motions; and (3)
excluding his proposed evidence of DCS records.
1. Subpoenas
[20] We first address Crittenden’s contention that the post-conviction court erred by
denying his request to issue subpoenas to four witnesses.
[21] Post-Conviction Rule 1(9)(b)—which addresses the issuance of subpoenas in a
post-conviction proceeding—provides, in relevant part that:
If the pro se petitioner requests issuance of subpoenas for
witnesses at an evidentiary hearing, the petitioner shall
specifically state by affidavit the reason the witness’ testimony is
required and the substance of the witness’ expected testimony. If
the court finds the witness’ testimony would be relevant and
probative, the court shall order that the subpoena be issued. If
the court finds the proposed witness’ testimony is not relevant
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 12 of 38
and probative, it shall enter a finding on the record and refuse to
issue the subpoena.
[22] A post-conviction court’s decision to grant or deny a request for issuance of a
subpoena is within its discretion. Collins v. State, 14 N.E.3d 80, 84 (Ind. Ct.
App. 2014). An abuse of discretion occurs where the decision is against the
logic and effect of the facts and circumstances. Id.
[23] Here, the post-conviction court granted Crittenden’s request for the issuance of
subpoenas to his trial and appellate attorneys but denied his request for
subpoenas to four other requested witnesses, which included the deputy
prosecutor, a nurse who examined D.M., and two DCS family case managers.6
In Crittenden’s request for subpoenas for these four witnesses, he generally
alleged that they would help him prove his claims of ineffective assistance of
trial counsel. When denying Crittenden’s request for subpoenas, the post-
conviction court explained that it did so “for the reason that the Court finds that
each of these proposed witness’ testimony is not relevant and probative.” (P-
CR App. 209).
[24] On appeal, Crittenden again makes a general assertion, without further
explanation, that these witnesses would support his claims of ineffective
assistance of counsel. Accordingly, Crittenden has failed to show that the post-
conviction court abused its discretion by denying his request for subpoenas.
6
Again, neither of the DCS workers nor the nurse testified at trial.
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 13 of 38
See, e.g., Collins, 14 N.E.3d at 84 (finding no abuse of discretion by the post-
conviction court’s refusal to issue subpoenas where the petitioner failed to
provide any information on appeal to show how a proposed witness would
have offered any relevant testimony to his post-conviction claims); see also
Johnson v. State, 832 N.E.2d 985, 994-95 (Ind. Ct. App. 2005) (holding that a
petitioner who had failed to explain how a proposed witnesses’ testimony
would support his ineffective assistance of counsel claim waived his claim that
the post-conviction court erred by denying his request for a subpoena).
2. Discovery
[25] Crittenden argues that the post-conviction court abused its discretion when it
denied his various discovery motions. We have consolidated his specific
arguments on these motions and will discuss them in further detail below.
[26] “Post-conviction proceedings are governed by the same rules ‘applicable in civil
proceedings including pre-trial and discovery procedures.’” Wilkes v. State, 984
N.E.2d 1236, 1251 (Ind. 2013) (quoting P-C.R. 1(5)). “[P]ost-conviction courts
are accorded broad discretion in ruling on discovery matters[,] and we will
affirm their determinations absent a showing of clear error and resulting
prejudice.” Id. (citing State v. McManus, 868 N.E.2d 778, 790 (Ind. 2007), cert.
denied).
A. Requests for Access to Relevant Portions of the Record
[27] Crittenden first argues that the post-conviction court erred by denying his
Requests for Access to Relevant Portions of the Record, one of which he filed
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 14 of 38
August 22, 2012 and the other on March 8, 2013. In his appellate brief,
Crittenden specifically challenges the post-conviction court’s denial of his
request for the following portions of the record: (1) a photograph taken by a
DCS caseworker that was included in trial discovery from the prosecutor to
Crittenden’s trial attorney; and (2) a DVD copy of the VHS tape that contained
the statement that D.M. made to the forensic child interviewer and that was
admitted, along with the transcript of the statement, during the child-hearsay
hearing.
[28] When denying one of these motions, the post-conviction court determined that
Crittenden had “failed to show how the requested discovery [wa]s necessary to
support his pending post-conviction relief claims, and he ha[d] not shown that
he ha[d] made any effort to obtain such evidence from his trial counsel’s file or
his previously-appointed State Public Defender.” (P-CR App. 134).
[29] On appeal, Crittenden generally alleges that his requested documents were
needed to prove his post-conviction claims, but he fails to explain how these
various discovery motions would have helped to support those claims. He also
fails to dispute the post-conviction court’s conclusion that he could have
obtained these records from his trial counsel’s file or previously-appointed State
Public Defender. Accordingly, we conclude that the post-conviction court did
not abuse its discretion by denying his Requests for Access to Relevant Portions
of the Record.
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 15 of 38
B. Motion to Compel Release of Documents
[30] Crittenden next argues that the post-conviction court erred by denying his
Motion to Compel Release of Documents, in which he asked the post-
conviction court to issue an order requiring the State to serve three sets of
interrogatories that he had previously tendered to the State. These
interrogatories did not contain questions posed to the State; instead, they were
interrogatories addressed to three non-party individuals, all of whom did not
testify at his bench trial. These individuals included the nurse for whom the
parties entered a stipulation regarding her testimony and the two DCS case
workers who wrote DCS reports that were not introduced into evidence during
his bench trial.
[31] Indiana Trial Rule 33 provides, in relevant part, that “[a]ny party may serve
upon any other party written interrogatories to be answered by the party
served[.]” (Emphasis added). Here, Crittenden tendered interrogatories to the
State to serve upon three non-party individuals who did not testify at trial. On
appeal, he has not shown how the post-conviction court’s denial of his request
to compel the State to serve these interrogatories on these non-parties was clear
error or that it resulted in prejudice. Accordingly, we affirm the post-conviction
court’s denial of his Motion to Compel Release of Documents. See Wilkes, 984
N.E.2d at 1251 (explaining that we will affirm a post-conviction court’s
discovery ruling absent a showing of clear error and resulting prejudice).
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 16 of 38
C. Request for Documents Pursuant to Trial Rule 34(B)
[32] Crittenden also contends that the post-conviction court erred by denying his
Request for Documents, Calculated to Lead to Discovery of Admissible
Evidence, Pursuant to Trial Rule 34(B). In this motion, Crittenden requested
items that he had requested in previously-denied pretrial discovery motions,
such as the photograph taken by a DCS worker, an in-camera review of the two
DCS reports, and a DVD recording of D.M.’s statement to the forensic child
interviewer. The post-conviction court denied this request, determining that
Crittenden had “failed to show how the requested discovery [wa]s necessary to
support his pending post-conviction relief claims, and he ha[d] not shown that
he ha[d] made any effort to obtain such evidence from his trial counsel’s file or
his previously-appointed State Public Defender.” (P-CR App. 134).
[33] Crittenden has not shown that he could not have obtained these records from
his trial counsel’s file or previously-appointed State Public Defender. Also, he
has not shown that the post-conviction court’s determination was clearly
erroneous or that it resulted in prejudice. Accordingly, we conclude that the
post-conviction court did not abuse its discretion by denying his Request for
Documents.
D. Motion for Offer to Prove
[34] Lastly, Crittenden argues that the post-conviction court erred by denying his
Motion for Offer to Prove. As Crittenden acknowledges, in this motion, he
“once again requested the same discovery that he ha[d] requested multiple
times before[,]”which included a DVD recording of D.M.’s statement to the
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 17 of 38
forensic child interviewer, a “hard copy of the audio version of the trial and
sentencing transcripts[,]” an in-camera review of the April 2008 and May 2008
DCS reports, and the name of the complainant from the April 2008 DCS
report.7 (Crittenden’s Br. 12).
[35] Crittenden has failed to show that the post-conviction court’s ruling was
erroneous or that he was prejudiced by the denial of these items. Indeed, the
record from his direct appeal contained a VHS copy and a transcript of D.M.’s
statement to the forensic child interviewer, as well as, the transcripts from his
trial and sentencing hearings. In regard to Crittenden’s request for an in-camera
review of the two DCS reports, the record shows that he had these two
documents; indeed, he tried to introduce them into evidence during the post-
conviction hearing. As to his request for the name of the complainant from the
April 2008 DCS report, we note that this report was not admitted during his
bench trial and that it pertained to an allegation of a lack of food, shelter, and
clothing, which is an allegation unrelated to Crittenden’s crimes. Because
Crittenden has failed to show how the post-conviction court’s denial of his
Motion for Offer to Prove was clearly erroneous or prejudiced him, he has
failed to show that the post-conviction court abused its discretion by denying
his motion.
7
In his Motion for Offer to Prove, Crittenden asserted that he wanted the name of the complainant so that he
could show that it was D.M.’s aunt. This April 2008 DCS report—which was offered as Petitioner’s Exhibit
I but not admitted into evidence during the post-conviction hearing—was based upon an allegation, made by
a relative, of a lack of food, shelter, and clothing in D.M.’s home.
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 18 of 38
3. Evidentiary Ruling
[36] Turning to Crittenden’s challenge to the post-conviction court’s exclusion of the
DCS reports from evidence, we note that in a post-conviction hearing, “[t]he
admission or exclusion of evidence is within the sound discretion of the [post-
conviction] court and will not be disturbed on review unless there was an abuse
of discretion on the part of the [post-conviction] court.” Roche v. State, 690
N.E.2d 1115, 1134 (Ind. 1997), reh’g denied.
[37] When questioning his trial counsel during the post-conviction hearing,
Crittenden attempted to admit two DCS reports into evidence. The State noted
that the DCS reports appeared to be photocopies, and it objected to the
admission of these reports based on a lack of foundation and lack of self-
authentication. The post-conviction court sustained the objection and stated
that the reports would “not [be] admitted at this time.” (P-CR Tr. 59).
Crittenden did not try later to have the reports admitted into evidence.
[38] On appeal, Crittenden neither argues that the exclusion of this evidence
violated an evidentiary rule nor offers any argument as to why it should have
been admitted. Accordingly, he has not shown that the post-conviction court
abused its discretion by excluding the DCS reports from evidence. See, e.g., id.
(holding that the post-conviction court did not abuse its discretion by excluding
evidence where the petitioner made “no argument that the exclusion of th[e]
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 19 of 38
evidence violated any evidentiary rule nor even any argument as to why [the
evidence] should have been admitted”).8
4. Post-Conviction Claims – Ineffective Assistance of Counsel
[39] Lastly, we review Crittenden’s challenge to the post-conviction court’s rulings
on his ineffective assistance of counsel claims. Although the post-conviction
court granted relief based on Crittenden’s ineffective assistance of counsel
claims regarding his sentencing, the post-conviction court concluded that
Crittenden had failed to meet his burden of proving the remainder of his
ineffective assistance of counsel claims. Now, on appeal, Crittenden argues
that the post-conviction court erred by denying post-conviction relief on these
remaining ineffective assistance of trial and appellate counsel claims.
[40] We apply the same standard of review to claims of ineffective assistance of
appellate counsel as we apply to claims of ineffective assistance of trial counsel.
Williams v. State, 724 N.E.2d 1070, 1078 (Ind. 2000), reh’g denied, cert. denied. A
claim of ineffective assistance of trial counsel requires a showing that: (1)
counsel’s performance was deficient by falling below an objective standard of
reasonableness based on prevailing professional norms; and (2) counsel’s
performance prejudiced the defendant such that “‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444
8
Again, we note that these reports appear to be part of the court’s file over which the post-conviction court
took judicial notice.
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 20 of 38
(Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984), reh’g
denied), reh’g denied, cert. denied. “A reasonable probability arises when there is a
‘probability sufficient to undermine confidence in the outcome.’” Grinstead v.
State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466 U.S. at 694).
“Failure to satisfy either of the two prongs will cause the claim to fail.” Gulzar
v. State, 971 N.E.2d 1258, 1261 (Ind. Ct. App. 2012) (citing French v. State, 778
N.E.2d 816, 824 (Ind. 2002)), trans. denied. However, “[i]f we can easily
dismiss an ineffective assistance claim based upon the prejudice prong, we may
do so without addressing whether counsel’s performance was deficient.” Baer v.
State, 942 N.E.2d 80, 91 (Ind. 2011), reh’g denied. “Indeed, most ineffective
assistance of counsel claims can be resolved by a prejudice inquiry alone.”
French, 778 N.E.2d at 824.
A. Ineffective Assistance of Trial Counsel
[41] Crittenden argues that his trial counsel was ineffective for the following: (1)
failing to file a motion to dismiss the charging information because it lacked a
file stamp; (2) failing to sufficiently investigate his case and to present witnesses
and evidence at trial, including evidence of prior DCS reports; (3) failing to
advise him regarding his chances at trial and the benefits of accepting a plea
offer; (4) failing to properly cross-examine the child victim and the forensic
child interviewer at the pretrial child-hearsay hearing; and (5) failing to object to
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 21 of 38
the admissibility of the victim’s medical exam and entering into a stipulation
regarding the examining nurse’s testimony.9
[42] Before addressing Crittenden’s claims, we note that:
There is a strong presumption that counsel rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment. Counsel is afforded
considerable discretion in choosing strategy and tactics, and these
decisions are entitled to deferential review. Isolated mistakes,
poor strategy, inexperience, and instances of bad judgment do
not necessarily render representation ineffective.
Stevens v. State, 770 N.E.2d 739, 746-47 (Ind. 2002) (internal citations omitted),
reh’g denied, cert. denied. “Few points of law are as clearly established as the
principle that ‘[t]actical or strategic decisions will not support a claim of
ineffective assistance.’” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)
(quoting Sparks v. State, 499 N.E.2d 738, 739 (Ind. 1986)), reh’g denied.
1. Motion to Dismiss
[43] Crittenden asserts that his trial counsel was ineffective for failing to file a
motion to dismiss the charging information based on it not containing a file
stamp.
[44] To prevail on a claim of ineffective assistance due to the failure to file a motion
to dismiss, “the defendant must show a reasonable probability that the motion
9
We have consolidated some of Crittenden’s ineffective assistance claims but will address each claim.
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 22 of 38
to dismiss would have been granted if made.” Garrett v. State, 992 N.E.2d 710,
723 (Ind. 2013).
[45] In its findings and conclusions, the post-conviction court pointed out that the
charging information is “reflected on the clerk’s chronological case summary in
the list of case pleadings filed” and “also reflected in the court’s minutes.” (P-
CR App. 381-82). The post-conviction court also determined that, even if
Crittenden’s trial counsel would have directed the trial court’s attention to the
lack of a file stamp, the court could “have properly ordered a nunc pro tunc
entry to correct the clerical error,” and, as a result, the post-conviction court
concluded that Crittenden had failed to prove any prejudice. (P-CR App. 382).
[46] We agree with the post-conviction court and conclude that Crittenden has
failed to prove that he was prejudiced by his counsel’s failure to file a motion to
dismiss the charging information. See Owens v. State, 333 N.E.2d 745 (Ind.
1975) (“A trial court has the power and a duty to order a nunc pro tunc entry to
correct . . . a clerical error” such as an indictment without a file stamp); Emmons
v. State, 847 N.E.2d 1035, 1037-39 (Ind. Ct. App. 2006) (relying on Owens and
noting that—in a case where a charging information does not contain a file
stamp—the “better course of action” would be to have “a nunc pro tunc entry
to show the filing of the information”). Accordingly, Crittenden has failed to
persuade us that the evidence as a whole leads unerringly and unmistakably to a
decision opposite that reached by the post-conviction court.
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 23 of 38
2. Investigation/Witnesses/Evidence
[47] Crittenden next contends that his trial counsel rendered ineffective assistance
because he failed to sufficiently investigate his case; failed to call any witnesses
on his behalf; and failed to present any evidence, including evidence of the DCS
reports, at trial.
[48] Turning to Crittenden’s argument regarding the failure to investigate, we note
that “[w]hen deciding a claim of ineffective assistance for failure to investigate,
we apply a great deal of deference to counsel’s judgments.” Boesch v. State, 778
N.E.2d 1276, 1283 (Ind. 2002) (citing Strickland, 466 U.S. at 691), reh’g denied.
“[E]stablishing failure to investigate as a ground for ineffective assistance of
counsel requires going beyond the trial record to show what investigation, if
undertaken, would have produced.” McKnight v. State, 1 N.E.3d 193, 201 (Ind.
Ct. App. 2013) (citing Woods v. State, 701 N.E.2d 1208, 1214 (Ind. 1998), cert.
denied). The petitioner must also show “how that additional information would
have aided in the preparation of the case.” Turner v. State, 974 N.E.2d 575, 585
(Ind. Ct. App. 2012) (citing Coleman v. State, 694 N.E.2d 269, 274 (Ind. 1998)),
trans. denied. “This is necessary because success on the prejudice prong of an
ineffectiveness claim requires a showing of a reasonable probability of affecting
the result.” McKnight, 1 N.E.3d at 201.
[49] Crittenden asserts that his trial counsel should have investigated the DCS
reports by deposing the family case managers who wrote the reports.
Crittenden contends that if his trial counsel would have fully investigated the
DCS report from April 2008 then he would have seen that the report—which
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 24 of 38
was based on an investigation of the lack of food, shelter, and clothing in the
home—contained a statement that D.M. denied any abuse in the home at that
time. Crittenden also argues that his trial counsel was ineffective for failing to
introduce the April 2008 and May 2008 DCS reports into evidence during the
bench trial.
[50] During the post-conviction hearing, Crittenden’s trial counsel testified that he
had reviewed the DCS reports before trial. He further testified that he did not
specifically recall what his thinking or strategy was at the time of trial regarding
the reports but that, when looking at them at the post-conviction hearing, he
was able to speculate as to his strategy regarding the reports. Trial counsel
testified that he would not have offered evidence of the May 2008 report
because it “would have likely convinced the Judge [during the bench trial that
Crittenden was] guilty as opposed to anything that was exculpatory” and
because it was a repetition of what the victim had told the detective and the
forensic child interviewer. (P-CR Tr. 84). Crittenden’s trial counsel testified
that he would not have admitted the April 2008 report because it related to
conduct not charged in Crittenden’s case and that it would not have been
relevant. Additionally, counsel testified that he would not have deposed a DCS
case managers because they would have just repeated what was in the reports
and because “their testimony would have tended towards proving the State’s
case as opposed to anything exculpatory.” (P-CR Tr. 62-63).
[51] Because trial counsel’s decision to not further investigate the DCS reports by
deposing the case manager and his decision to not introduce them into evidence
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 25 of 38
was a reasonable strategic decision, Crittenden has failed to show that his trial
counsel’s performance was deficient. See Rondon v. State, 711 N.E.2d 506, 518
(Ind. 1999) (holding that “trial counsel’s decision to put the State to its burden
without conducting an investigation to discover information beyond what the
State had supplied through discovery was reasonable under the
circumstances”). Moreover, Crittenden has failed to demonstrate that there is a
reasonable probability that, but for his trial counsel’s alleged errors, the result of
the proceeding would have been different. Thus, the post-conviction court did
not err by denying post-conviction relief on Crittenden’s claims relating to the
DCS reports.
[52] Crittenden also argues that his counsel should have investigated other
occupants of the houses where D.M. lived to see if they could have possibly
disclaimed D.M.’s allegation of abuse by Crittenden. During the post-
conviction hearing, Crittenden’s trial counsel testified that he “would have
investigated every avenue to attempt to defend” Crittenden and that he
“investigated all the various leads that were open to pursue.” (P-CR Tr. 64,
70). Additionally, Crittenden offered no evidence during the post-conviction
hearing to show what an investigation of these occupants, if undertaken, would
have produced or how that additional information would have aided in the
preparation of the case. Because he has made no showing that there was a
reasonable probability that the outcome of his case would likely have been
different had counsel further investigated the occupants, the post-conviction
court did not err by denying post-conviction relief on these claims.
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 26 of 38
[53] In regard to witnesses, Crittenden argues that his counsel should have called the
following as witnesses: (1) D.M.’s mother to testify that she did not believe that
Crittenden had inappropriately touched D.M.; (2) D.M.’s teachers to see if
D.M. had ever reported abuse to them; and (3) character witnesses to testify
that Crittenden had never molested any other children.
[54] “A decision regarding what witnesses to call is a matter of trial strategy which
an appellate court will not second-guess[.]” Brown v. State, 691 N.E.2d 438, 447
(Ind. 1998). “When ineffective assistance of counsel is alleged and premised on
the attorney’s failure to present witnesses, it is incumbent upon the petitioner to
offer evidence as to who the witnesses were and what their testimony would
have been.” Lowery v. State, 640 N.E.2d 1031, 1047 (Ind. 1994), reh’g denied,
cert. denied.
[55] We need not determine whether trial counsel’s decision not to call witnesses
was a reasonable trial strategy because Crittenden has failed to meet his post-
conviction relief burden on this ineffective assistance claim. Crittenden did not
offer any affidavits from these proposed witnesses or any other evidence to
show what these witnesses’ testimony would have been; thus, he has failed to
meet his burden on this claim. See Lowery, 640 N.E.2d at 1047. As a result, he
has failed to show that the post-conviction court erred by denying relief on this
claim.
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 27 of 38
3. Advice
[56] Next, Crittenden argues that the post-conviction court erred by denying him
relief on his claim that his trial counsel was ineffective for failing to advise him
regarding his chances at trial and the benefits of accepting a plea offer.
Crittenden asserts that his trial counsel erroneously allowed him to reject a plea
offer and failed to advise him that he could be convicted based on the testimony
of the child victim.
[57] The record before us does not support Crittenden’s assertions. During
Crittenden’s sentencing hearing, his trial counsel informed the trial court that he
had discussed these issues with Crittenden.10 Specifically, his trial counsel
stated:
And Judge, I feel compelled to make at least a very minimal
record so that the Court’s [sic] aware and Mr. Crittenden may
not recall the entirety of our conversation but I did have some
other folks there with me as we were discussing it and I
remember distinctly assuring him that the Court could convict
just as easily acquit and we discussed in detail when plea
negotiations were ongoing what he was facing if convicted and
what was offered by the State and I know sitting here now
[Crittenden] probably feels like more time could have been spent
explaining it to him but I made sure before we signed that
document that I was satisfied he was clear and I thought he was
clear minded that day and I thought he understood the nature of
the circumstances, so, if that has changed I can only base my
10
Crittenden’s trial counsel made a record during sentencing because Crittenden had complained about the
lack of time to make a decision about a plea, his jury trial waiver, and counsel’s alleged promise of a positive
trial outcome.
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 28 of 38
recollection on what I remember and what I told him and I
remember distinctly warning him of all the possible outcomes.
*****
Because a plea was offered that morning that I advised him to
consider with a high level of consideration.
(Tr. 146-47).
[58] Furthermore, during the post-conviction hearing, Crittenden’s trial counsel
testified that, prior to trial, he had consulted with Crittenden regarding the
possibility of a plea agreement and testified that he would have conveyed any
plea offer to him. Additionally, his trial counsel testified that he consulted with
Crittenden and informed him of what kind of evidence could be used against
him.
[59] Other than Crittenden’s self-serving testimony during the post-conviction
hearing, he did not present any evidence that his trial counsel engaged in the
behavior that he alleged. Accordingly, he has failed to show that the post-
conviction court erred by denying his ineffective assistance claim.
4. Cross-Examination
[60] Crittenden also argues that his trial counsel was ineffective for failing to cross-
examine D.M. and failing to sufficiently cross-examine the forensic child
interviewer during the child-hearsay hearing.
[61] “‘It is well settled that the nature and extent of cross-examination is a matter of
strategy delegated to trial counsel.’” Waldon v. State, 684 N.E.2d 206, 208 (Ind.
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 29 of 38
Ct. App. 1997) (citing Osborne v. State, 481 N.E.2d 376, 380 (Ind. 1985)), trans.
denied.
[62] In regard to Crittenden’s first ineffective assistance claim regarding cross-
examination, he contends that his trial counsel was ineffective because his
counsel failed to cross-examine D.M. during the pretrial child-hearsay hearing
and challenge her credibility. The post-conviction court noted that while
Crittenden’s trial counsel did not cross-examine D.M. during the child-hearsay
hearing, he had cross-examined D.M. during the bench trial. The post-
conviction court also noted that, at the end of Crittenden’s bench trial, the trial
court specifically clarified that its verdict was based solely on the victim’s trial
testimony and not on any other statements she had made to others. The post-
conviction court determined that, as a result, Crittenden had failed to show any
prejudice from his trial counsel’s decision not to cross-examine D.M. during the
child-hearsay hearing.
[63] Our review of the record supports the post-conviction court’s determination.
Furthermore, Crittenden did not present evidence during the post-conviction
hearing to show what favorable testimony, if any, would have been elicited
from such a cross-examination and how it would have affected the outcome of
his trial. Thus, the post-conviction’s court conclusion that Crittenden had failed
to meet his burden of showing prejudice is further supported. See Fine v. State,
490 N.E.2d 305, 309 (Ind. 1986) (holding that there was no showing of
prejudice by counsel’s failure to cross-examine “key state’s witnesses” when the
defendant failed to establish that counsel could have elicited favorable
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 30 of 38
testimony); Waldon, 684 N.E.2d at 208-09 (holding that the defendant had
failed to show that he was prejudiced by trial counsel’s failure to cross-examine
a witness).
[64] In regard to Crittenden’s claim that his counsel was ineffective for not properly
cross-examining the forensic child interviewer, Crittenden merely asserts in his
appellate brief that his counsel’s cross-examination was ineffective and that he
was prejudiced, and he then refers us to his post-conviction memorandum filed
with the post-conviction court in an attempt to have us incorporate his
previously-made argument. Our Court, however, has explained that “a party
may not present an argument entirely by incorporating by reference from a
source outside the appellate briefs.” Bigler v. State, 732 N.E.2d 191, 197 (Ind.
Ct. App. 2000), trans. denied. “We [have] explained that briefs should be
prepared ‘so that each judge, considering the brief alone and independent of the
transcript, can intelligently consider each question presented.’” Id. (quoting
Pluard v. Patients Compensation Fund, 705 N.E.2d 1035, 1038 (Ind. Ct. App.
1999), trans. denied). Because Crittenden has failed to make an independent
argument in his appellate brief, he has waived this argument. See id.
5. Medical Exam/Nurse’s Statement
[65] Crittenden asserts that he received ineffective assistance of trial counsel because
his counsel did not object to the admissibility of the victim’s medical exam and
because he entered into a stipulation regarding the examining nurse’s
testimony.
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 31 of 38
[66] To demonstrate ineffective assistance of counsel for failure to object, a
defendant must prove that an objection would have been sustained if made and
that he was prejudiced by counsel’s failure to make an objection. Wrinkles v.
State, 749 N.E.2d 1179, 1192 (Ind. 2001), cert. denied.
[67] During Crittenden’s bench trial, his trial counsel and the State entered into a
stipulation regarding the testimony of the nurse who examined D.M. and
regarding the admissibility of the corresponding medical records. 11 They
stipulated that the nurse “examined” D.M. and that D.M. “did not have any
injuries to her genitalia which neither confirm[ed] nor negate[d] the allegations
of sexual abuse.” (Tr. 118). Because his counsel stipulated to the admission of
the medical records, Crittenden cannot show that an objection to those records
would have been sustained. Thus, he cannot show that his counsel rendered
ineffective assistance by failing to object to the medical records.
[68] In regard to his argument regarding counsel’s stipulation to the nurse’s
testimony, Crittenden contends that his counsel was ineffective because he did
not present live testimony from her and cross-examine her. This argument also
fails. Crittenden’s trial counsel testified during the post-conviction hearing that
a stipulation of the nurse’s testimony was the equivalent of a “very positive
outcome of any cross-examination.” (P-CR Tr. 96). Crittenden, however, did
not present any evidence during the post-conviction hearing to show how
11
The record reveals that the nurse had a scheduling issue and was not available to testify on the morning of
the bench trial.
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 32 of 38
counsel’s decision to stipulate to the nurse’s testimony constituted deficient
performance. Nor did Crittenden present any evidence of specific testimony
that would have resulted from calling the nurse as a witness and how it would
have affected the outcome of his trial. Therefore, he has failed to meet his
burden of showing that the post-conviction court erred by denying post-
conviction relief on this ineffective counsel claim.
B. Ineffective Assistance of Appellate Counsel
[69] Lastly, Crittenden contends that the post-conviction court erred by denying him
post-conviction relief on his ineffective assistance of appellate counsel claims.
Ineffective assistance of appellate counsel claims “‘generally fall into three basic
categories: (1) denial of access to an appeal, (2) waiver of issues, and (3) failure
to present issues well.’” Garrett v. State, 992 N.E.2d 710, 724 (Ind. 2013)
(quoting Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006)). Crittenden argues
that his appellate counsel rendered ineffective assistance because he failed to
raise a challenge to the sufficiency of the evidence and because he failed to
“sufficiently argue” the “meritorious issue” of territorial jurisdiction on appeal.
(Crittenden’s Br. 43). Thus, his ineffective assistance of appellate counsel
claims are based upon categories (2) and (3).
1. Waiver of Issue
[70] Turning to Crittenden’s argument regarding appellate counsel’s waiver of an
issue challenging the sufficiency of the evidence, we note that “[t]o show that
counsel was ineffective for failing to raise an issue on appeal thus resulting in
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 33 of 38
waiver for collateral review, ‘the defendant must overcome the strongest
presumption of adequate assistance, and judicial scrutiny is highly deferential.’”
Garrett, 992 N.E.2d at 724 (quoting Ben–Yisrayl v. State, 738 N.E.2d 253, 260-61
(Ind. 2000), reh’g denied, cert. denied). Our Indiana Supreme Court has explained
the “need” for a reviewing court to be deferential to appellate counsel when
considering whether counsel was ineffective for failing to raise an issue on
direct appeal:
[T]he reviewing court should be particularly sensitive to the need
for separating the wheat from the chaff in appellate advocacy,
and should not find deficient performance when counsel’s choice
of some issues over others was reasonable in light of the facts of
the case and the precedent available to counsel when that choice
was made.
Timberlake v. State, 753 N.E.2d 591, 605-06 (Ind. 2001) (quoting Bieghler v. State,
690 N.E.2d 188, 194 (Ind. 1997), reh’g denied, cert. denied), reh’g denied, cert.
denied. “Ineffective assistance is very rarely found in cases where a defendant
asserts that appellate counsel failed to raise an issue on direct appeal.” Reed,
856 N.E.2d at 1196. This is because “‘the decision of what issues to raise is one
of the most strategic decisions to be made by appellate counsel.’” Wrinkles, 749
N.E.2d at 1203 (quoting Bieghler, 690 N.E.2d at 193).
[71] “To evaluate the performance prong when counsel waived issues upon appeal,
we apply the following test: (1) whether the unraised issues are significant and
obvious from the face of the record and (2) whether the unraised issues are
“clearly stronger” than the raised issues.” Garrett, 992 N.E.2d at 724 (quoting
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 34 of 38
Timberlake, 753 N.E.2d at 605-06). “If the analysis under this test demonstrates
deficient performance, then we evaluate the prejudice prong which requires an
examination of whether ‘the issues which . . . appellate counsel failed to raise
would have been clearly more likely to result in reversal or an order for a new
trial.’” Garrett, 992 N.E.2d at 724 (quoting Bieghler, 690 N.E.2d at 194).
[72] Crittenden contends that appellate counsel was ineffective for failing to
challenge the sufficiency of the evidence to support his convictions for Class A
and Class C felony child molesting because the evidence against him was based
on D.M’s testimony and not any physical evidence. Crittenden contends that
the sufficiency issue was a stronger issue because “it is apparent from the face of
the record[] that the evidence was insufficient to sustain the judge[‘]s verdict of
guilt” on his two child molesting convictions.
[73] During the post-conviction hearing, however, Crittenden’s appellate counsel’s
testimony showed otherwise. Appellate counsel testified that he reviewed the
transcripts of the hearings, trial, and sentencing and that he tried to raise the
strongest issue. He testified that he did not raise a sufficiency issue because it
would not have been stronger than the territorial jurisdiction issue. Counsel
also testified that there was “direct testimony from the victim” and that he
thought it was “sufficient evidence to support the finding of guilt.” (P-CR Tr.
12, 13).
[74] In regard to this claim, the post-conviction court concluded that:
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 35 of 38
Crittenden had little chance of success in arguing on appeal that
the evidence was insufficient to establish his child molesting
convictions. D.M.’s testimony supported the convictions for A-
Felony and C-felony child molesting. See T.R. 64, 66-68
(Crittenden pulled her pajama bottoms and panties off and
touched her inside of her bottom with his “stuff” [previously
identified as his “private” or the body part boys use to go to the
bathroom], that he was moving and shaking, that it hurt, and that
D.M. “told him it hurted”); T.R. 65 (Crittenden touched her on
the inside of her private or “pee pot” and his hand was moving,
not still).
*****
Petitioner has failed to prove that it was unquestionably
unreasonable for appellate counsel not to raise this as a claim on
appeal. Nor does Petitioner provide any legal authority to show
a reasonable probability that such a claim would have been
successful if raised or would have been stronger than the claim
raised. With no proof of deficient performance or prejudice, this
claim fails.
(P-CR App. 394, 395) (brackets in original).
[75] In support of Crittenden’s argument, he again attempts to incorporate the
argument he made below to the post-conviction court. (See Crittenden’s Br. 44)
(directing us to “See entire argument in support of the fact that the evidence
was not sufficient to support the guilty verdict of the judge. (App. at 265-271)”)
(boldface removed). As explained above, “a party may not present an
argument entirely by incorporating by reference from a source outside the
appellate briefs.” Bigler, 732 N.E.2d at 197. Thus, he has waived review of this
claim. See id. Waiver notwithstanding, our review of the record supports the
post-conviction court’s ruling denying post-conviction relief on this claim as
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 36 of 38
Crittenden failed to “overcome the strongest presumption of adequate
assistance.” Garrett, 992 N.E.2d at 724.
2. Failure to Present Issue Well
[76] Lastly, we turn to Crittenden’s claim that his counsel was ineffective for failing
to sufficiently argue the territorial jurisdiction issue on appeal.
[77] “[C]laims of inadequate presentation of certain issues, as contrasted with the
denial of access to an appeal or waiver of issues, are the most difficult for
defendants to advance and for reviewing tribunals to support.” Hollowell v.
State, 19 N.E.3d 263, 270 (Ind. 2014) (citing Bieghler, 690 N.E.2d at 195).
“[T]his is so because such claims essentially require the reviewing court to
reexamine and take another look at specific issues it has already adjudicated to
determine ‘whether the new record citations, case references, or arguments
would have had any marginal effect on their previous decision.’” Id. (quoting
Bieghler, 690 N.E.2d at 195)) (emphasis added by Hollowell Court).
[78] In regard to this claim, the post-conviction court stated that Crittenden did
“little to explain this less than cogent claim.” (P-CR App. 393). The post-
conviction court found that “[w]hen considered in light of the requisite highest
deference to appellate counsel’s performance, Crittenden’s claim here [was]
unsupported and ma[d]e[] no sense.” (P-CR App. 393). As a result, it
concluded that Crittenden has failed to establish that appellate counsel was
ineffective.
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 37 of 38
[79] On appeal, as below, Crittenden fails to present a cogent argument. Thus, he
has waived this argument. See Johnson, 832 N.E.2d at 1006 (holding that
petitioner had waived claims of ineffective assistance of appellate counsel by
failing to make a cogent argument). He has also waived review of the argument
because he, once again, tries to incorporate his argument made below during
the post-conviction proceedings. See Bigler, 732 N.E.2d at 197. Waivers
notwithstanding, Crittenden has failed to show either deficient performance or
prejudice in regard to this claim. Accordingly, he has failed to meet his burden
of showing that the post-conviction court erred by denying relief on this claim.
[80] Affirmed.
Barnes, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1405-PC-227 | June 30, 2015 Page 38 of 38