Maurice McClung, Jr. v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 30 2020, 11:24 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Jeffrey A. Baldwin Angela Sanchez
Tyler D. Helmond Deputy Attorney General
Voyles Vaiana Lukemeyer Baldwin & Indianapolis, Indiana
Webb
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Maurice McClung, Jr., November 30, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-PC-413
v. Appeal from the Grant Circuit
Court
State of Indiana, The Honorable Mark E. Spitzer,
Appellee-Plaintiff. Judge
Trial Court Cause No.
27C01-1010-PC-4
Brown, Judge.
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[1] Maurice McClung, Jr., appeals the denial of his petition for post-conviction
relief. We affirm.
Facts and Procedural History
[2] The relevant facts as discussed in McClung’s direct appeal follow:
On August 14, 2008, Darrell Hollins (“Hollins”) was in Marion,
Indiana with his friend, Matthew Dragoo (“Dragoo”), to buy
Lortabs from Tina Jones (“Tina”) for pain he experienced from a
previous automobile accident. Tina showed Hollins some
marijuana she had and told Hollins that her son, Ralph Jones
(“Ralph”), could arrange for Hollins to buy some. Because
Hollins had lost his job ten months earlier, he was dealing
marijuana to make ends meet until he could find legitimate
employment. Hollins told Tina to give Ralph his contact
information and left. Tina called Ralph with Hollins’s contact
information, and Ralph made contact with Hollins. After several
calls between the two, Hollins arranged to buy two pounds of
marijuana from Ralph for $2,200. Ralph suggested that they
meet at the Greentree Apartments in Marion. At around 5:00
p.m., Hollins and Dragoo drove to the Greentree Apartments.
Ralph had told them where to find him in the complex and that
he would be driving a black Grand Am.
After arriving at the apartment complex, Hollins saw Ralph’s
black Grand Am backed into a parking spot and pulled in beside
it. Hollins exited his car, and Dragoo remained in the car.
Ralph was waiting for Hollins with another man, Joey Bolden
(“Bolden”). The two approached Hollins and introduced
themselves. Hollins then followed Ralph into the “far foyer on
the right” side of the apartment building. Tr. at 104. Hollins
entered the foyer behind Ralph with Bolden following them. As
he walked in, Hollins saw McClung standing beside the stairs
with Allen Horton (“Horton”). Hollins did not expect to meet
anyone other than Ralph at the Greentree Apartments.
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Hollins had not previously met Ralph or Bolden, but he had met
McClung and Horton prior to that date. Hollins’s cousin was a
tattoo artist, and Hollins had previously seen the work his cousin
had done on McClung, which included a panther and a grim
reaper sitting on a throne. Hollins had met McClung about
seven years earlier, when Hollins was sixteen years old. He had
met Horton a year before encountering him in the foyer, when
they lived in the same apartment complex.
Earlier in the day, Ralph, McClung, Bolden, Horton, and Cletus
Luster had devised a plan to rob Hollins. They took mulch from
Tina and placed it inside some plastic grocery bags. They
planned to rob Hollins when he arrived to purchase the
marijuana at the Greentree Apartments. When Hollins walked
into the foyer, he saw a duffle bag that contained two knotted
Wal-Mart plastic bags on the staircase. Hollins walked over to
the duffle bag and saw that the plastic bags contained mulch. He
immediately knew he was going to be robbed. As Hollins looked
to his right, he saw McClung give Ralph a “look” and then saw a
gun in McClung’s hand. Id. at 109. Without saying a word,
McClung began shooting Hollins from approximately two feet
away. McClung shot Hollins once in the leg, twice in the
stomach, once above the heart, and once in the left arm. Hollins
fell back and tried to kick the door open behind him, while Ralph
and Horton tried to grab him and drag him back inside. As
Hollins attempted to turn and run away, McClung followed and
shot him two more times. McClung shot Hollins in the lower
back, and Hollins grabbed his money and threw it at McClung.
Hollins fell to the ground, and McClung approached him and
shot him in the upper left shoulder.
Hollins lost consciousness, and as he awoke, he saw Ralph,
McClung, and Bolden picking his money up off of the ground.
Hollins then jumped up and grabbed his arm because it felt as if it
was “barely attached.” Id. at 111. He tried to get to his car, but
fell again. Dragoo helped Hollins into the car as McClung,
Ralph, Bolden, and Horton fled. Dragoo picked up the
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remaining money at Hollins’s request. The next thing that
Hollins remembered was speaking to the paramedic and telling
her that he was shot “everywhere.” Id. at 115.
The paramedic was the last thing that Hollins remembered
seeing. As a result of the extreme blood loss from his gunshot
wounds, Hollins had a stroke, which disabled his optic nerve and
rendered him blind. Hollins suffered seven total gunshot
wounds. Because of these wounds, his intestines and bowels had
to be rerouted and his gall bladder removed. He breathed
through a tracheotomy tube and had a feeding tube for six
months. One of the bones in Hollins’s left arm was shattered,
and he had to undergo surgery to regain use of the arm. Hollins
was hospitalized for four months after being shot and had
continuous health problems as a result of his injuries.
Marion Police Officer Jeff Wells (“Officer Wells”) responded to a
dispatch of the shooting and stopped Ralph and Bolden in the
black Grand Am. When they were stopped, both men had
wadded-up money in their possession. McClung’s forty-five
caliber handgun, shirt, and hat were found in a trash barrel a
short distance from the Greentree Apartments. Three bullets
were left in the gun. Three bullet casings located at the crime
scene matched the gun found. The magazine of the gun would
hold ten rounds. Police officers located Horton the next day, and
McClung eventually turned himself in to the police.
McClung v. State, No. 27A02-0910-CR-1012, slip op. at 2-5 (Ind. Ct. App. April
20, 2010), trans. denied.
[3] The State charged McClung with attempted murder and armed robbery as class
A felonies and unlawful possession of a firearm by a serious violent felon as a
class B felony. Id. at 5. A jury found him guilty of attempted murder and
armed robbery as class A felonies. Id. at 6. In a subsequent proceeding, the
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trial court found McClung guilty of unlawful possession of a firearm by a
serious violent felon as a class B felony after he admitted he had the prior
convictions listed in the charging information. Id. at 6-7. The court sentenced
him to fifty years for Count I, attempted murder; fifty years for Count II, armed
robbery; and twenty years for Count III, unlawful possession of a firearm by a
serious violent felon. Id. at 7. The court ordered the sentences for Counts I and
II to be served concurrently with and consecutive to the sentence for Count III
for an aggregate sentence of seventy years. Id.
[4] On direct appeal, McClung argued that the trial court abused its discretion
when it allowed evidence admitted of an occasion, prior to the instant crime,
when Hollins purchased marijuana from McClung. Id. at 8. This Court found
that McClung initiated the subject when he questioned Hollins about his
deposition testimony and had invited any error and waived the issue. Id.
McClung also argued that the trial court abused its discretion when it allowed
the prosecutor to refer to photographs during closing argument that had not
been admitted into evidence. Id. at 9. This Court held that this argument had
been waived where the photographs in question were not included in the record
on appeal. Id. at 10. He also challenged his sentence, and we affirmed. 1 Id. at
11-12.
1
We observed that McClung argued that “his seventy-year aggregate sentence should be revised pursuant to
Indiana Appellate Rule 7(B).” McClung, slip op. at 11. We noted that while McClung argued that his
sentence was “manifestly unreasonable” under Ind. Appellate Rule 7(B), “the current version of the rule,
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[5] On October 5, 2010, McClung filed a verified petition for post-conviction relief
alleging he was denied effective assistance of trial counsel and appellate
counsel. On July 24, 2019, the post-conviction court held a hearing.
McClung’s counsel stated that McClung’s trial counsel, Attorney Lee Calvin
Buckley, had some health problems and was unable to travel and that the
parties conducted a deposition on May 17, 2018, in lieu of his testimony at the
hearing. The court admitted the deposition.
[6] Amber Burks-Goble testified that she knew McClung for about fifteen years and
picked him up at the Boys and Girls Club on August 14, 2008. When asked
when she was with McClung that day, she answered: “Um, probably between
five thirty and six.” Transcript at 10. When later asked if she was constantly
with McClung from the time she picked him up at the Boys and Girls Club until
9:00 or 9:30, she answered affirmatively. She testified that Attorney Buckley
did not contact or interview her.
[7] David Anderson testified that he was McClung’s friend. When asked if he
remembered seeing McClung on the day of the shooting at Greentree, he
answered: “Uh, I don’t remember the date, but yeah I seen him at the Boy’s
and Girl’s Club.” Id. at 16. When asked if that was the day of the shooting, he
answered affirmatively. He testified that he was at the Boys and Girls Club “a
little bit after five, maybe five ten, five fifteen” and that McClung approached
effective January 1, 2003, allows us to revise a sentence we find ‘inappropriate’ in light of the nature of the
offense and the character of the offender.” Id. at 11 n.4.
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him minutes later at “[p]robably about five ten, five fifteen.” Id. at 17. He
testified that he left the Boys and Girls Club at “[m]aybe five thirty, somewhere
around there, a little bit later,” and that McClung was still there when he left.
Id.
[8] McClung’s mother, Michelle, testified that she picked McClung up at his house
at “about four thirty” and took him to her mother’s house and “dropped him off
at the Boy’s and Girl’s Club at five o’clock that day.” Id. at 23. She testified
she was in contact with Attorney Buckley prior to trial and provided him with
names and addresses of potential witnesses shortly after McClung’s arrest.
[9] On January 21, 2020, in a twenty-four page order, the court denied McClung’s
petition.
Discussion
[10] The petitioner in a post-conviction proceeding bears the burden of establishing
grounds for relief by a preponderance of the evidence. Fisher v. State, 810
N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5). When appealing
from the denial of post-conviction relief, the petitioner stands in the position of
one appealing from a negative judgment. Fisher, 810 N.E.2d at 679. On
review, we will not reverse the judgment unless the evidence as a whole
unerringly and unmistakably leads to a conclusion opposite that reached by the
post-conviction court. Id. “A post-conviction court’s findings and judgment
will be reversed only upon a showing of clear error—that which leaves us with a
definite and firm conviction that a mistake has been made.” Id. In this review,
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we accept findings of fact unless clearly erroneous, but we accord no deference
to conclusions of law. Id. The post-conviction court is the sole judge of the
weight of the evidence and the credibility of witnesses. Id.
[11] To prevail on a claim of ineffective assistance of counsel a petitioner must
demonstrate both that his counsel’s performance was deficient and that the
petitioner was prejudiced by the deficient performance. French v. State, 778
N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls
below an objective standard of reasonableness based on prevailing professional
norms. Id. To meet the appropriate test for prejudice, the petitioner must show
that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Id. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.
Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong
will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective
assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.
[12] When considering a claim of ineffective assistance of counsel, a “strong
presumption arises that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.”
Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance
is presumed effective, and a defendant must offer strong and convincing
evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73
(Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will
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not support a claim of ineffective assistance of counsel. Clark v. State, 668
N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.
Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second
guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly
speculate as to what may or may not have been an advantageous trial strategy
as counsel should be given deference in choosing a trial strategy which, at the
time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d
40, 42 (Ind. 1998). In order to prevail on a claim of ineffective assistance due to
the failure to object, the defendant must show a reasonable probability that the
objection would have been sustained if made. Passwater v. State, 989 N.E.2d
766, 772 (Ind. 2013).
[13] 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,
531 U.S. 1128, 121 S. Ct. 886 (2001). Ineffective assistance of appellate counsel
claims fall into three 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). To show that counsel was ineffective for failing to raise an
issue on appeal thus resulting in waiver for collateral review, the defendant
must overcome the strongest presumption of adequate assistance, and judicial
scrutiny is highly deferential. Id. 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)
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whether the unraised issues are clearly stronger than the raised issues. Id. 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. Id.
A. Trial Counsel
[14] McClung argues his trial counsel was ineffective for failing to investigate and
adequately present the alibi defense and failing to perform adequately at trial on
multiple grounds. He also contends that trial counsel’s errors combine to
constitute ineffective assistance.
1. Failure to Investigate and Present Alibi Defense
[15] Without citation to the record, McClung asserts in part that “[h]is alibi defense
lost three critical witnesses”: Burks-Goble, Anderson, and his mother, Michelle.
Appellant’s Brief at 16. He also argues that his trial counsel failed to interview
a single investigator, a single alibi witness, or any of the State’s witnesses other
than Ralph and Hollins.
[16] It is undisputed that effective representation requires adequate pretrial
investigation and preparation. Badelle v. State, 754 N.E.2d 510, 538 (Ind. Ct.
App. 2001), trans. denied. However, it is well-settled that we should resist
judging an attorney’s performance with the benefit of hindsight. Id. “When
deciding a claim of ineffective assistance of counsel for failure to investigate, we
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apply a great deal of deference to counsel’s judgments.” Boesch v. State, 778
N.E.2d 1276, 1283 (Ind. 2002), reh’g denied. With the benefit of hindsight, a
defendant can always point to some rock left unturned to argue counsel should
have investigated further. Ritchie v. State, 875 N.E.2d 706, 719 (Ind. 2007), reh’g
denied. The benchmark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper functioning of the
adversarial process that it deprived the defendant of a fair trial. Id. (citing
Strickland, 466 U.S. at 686, 104 S. Ct. 2052). Generally, “[c]ounsel’s failure to
interview or depose State’s witnesses does not, standing alone, show deficient
performance.” Williams, 771 N.E.2d at 74. “The question is what additional
information may have been gained from further investigation and how the
absence of that information prejudiced his case.” Id.
[17] In his argument, McClung does not assert what additional information may
have been gained from further investigation and how the absence of that
information prejudiced his case. 2 Further, the post-conviction court found in
part that Burks-Goble and Anderson were not alibi witnesses because the
shooting occurred sometime before 5:00 p.m. at the Greentree Apartments,
which was a short drive from the Boys and Girls Club. The court also found
that the testimony of Burks-Goble and Anderson lacked credibility. With
respect to McClung’s mother, the court found that, “if her testimony is to be
2
Ind. Appellate Rule 46(a)(8) provides that each contention in the argument section “must be supported by
citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in
accordance with Rule 22.”
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believed, McClung was with her at the time of the shooting. However, her
name was not listed on the Notice of Alibi as a witness, although she and
Buckley both testified she was a primary source of the names of potential
witnesses provided to Buckley.” Appellant’s Appendix Volume II at 83. The
court also found that her testimony was lacking in credibility. We cannot say
that McClung has demonstrated reversal is warranted on this basis.
2. Hollins’s Deposition
[18] With respect to his assertion that his trial counsel failed to object to
inadmissible evidence, McClung does not say which evidence was inadmissible.
Rather, he argues his counsel “not only failed to object to inadmissible
evidence, he initiated the introduction of the evidence himself.” Appellant’s
Brief at 17 (citing Trial Transcript at 138). He also asserts that “[t]his was
deficient performance to introduce otherwise inadmissible Rule 404(b)
evidence.” Id. at 18. He contends that his trial counsel sought no limiting
instruction and that trial counsel acknowledged there was no strategic reason to
fail to do so.
[19] To the extent McClung cites page 138 of the trial transcript, which contains a
reference by trial counsel to Hollins’s deposition, we note that Hollins had
already identified McClung at trial as the person who shot him. During recross-
examination, Hollins testified about his prior interactions with McClung.
McClung’s counsel asked: “And that’s the only time you’ve ever had any
dealings with [McClung]?” Trial Transcript Volume I at 137-138. Hollins
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answered: “That I can remember. Yes.” Id. at 138. The following exchange
then occurred:
Q Just want to refer you back to that deposition that you gave on
the 26th day of June, 2009. On page fifteen you were asked
questions about taking . . . smoking marijuana and taking pills
and that kinda stuff. Do you remember that question?
A Not really. You’ll have to refresh me.
Q Do you remember being asked a question on page fourteen of
that deposition, at line twenty. How old were you on that date of
the shooting in August of ’08. Answer, how old was I.
Question, yeah. Answer, twenty-three. Question, okay, had . . .
now, had from sixteen to twenty-three, have you bought
marijuana or any pills or any kind or anything from him during
that or other than the one time you mentioned. When I was
sixteen? It wasn’t like two pounds or nothing. It was just some
little, some for me. Where. Answer, because I smoked back
then. Question, where did that. Answer, it. Question, I’m
sorry, where did the transaction occur. Answer, what. When he
sold you some marijuana. Answer, oh at my grandma’s house
across from Little Tara’s, the Handy Andy. You remember being
asked those questions and giving those answers?
A No.
Id. We note that McClung does not point to the record to show that Hollins’s
deposition was admitted as evidence. To the extent McClung asserts that his
trial counsel sought no limiting instruction and that his trial counsel
acknowledged there was no strategic reason to fail to do so, we observe that
McClung cites to a portion of his trial counsel’s deposition in which his trial
counsel answered “[p]robably not” when asked if there was any strategic reason
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not to request a limiting instruction. Exhibits Volume I at 29. However,
McClung does not assert that any questioning of Hollins regarding his
deposition lacked a strategic reason. Further, we observe that the post-
conviction court found that McClung’s trial counsel was faced with the strategic
decision of whether to attack Hollins’s testimony regarding identification and
that this was the type of strategic decision that defense attorneys often make in
the course of trial. Under the circumstances, we cannot say that the evidence as
a whole unerringly and unmistakably leads to a conclusion opposite that
reached by the post-conviction court.
3. Photo Array
[20] McClung next argues that his trial counsel failed to object to Marion Police
Captain Kay’s reference to a photo array using the term “mug photo system.”
Appellant’s Brief at 18 (quoting Trial Transcript Volume II at 416). He does
not indicate whose photo was involved in the photo array or develop an
argument as to why an objection would have been sustained. The record
indicates that Captain Kay testified that the photo array was generated through
“the Grant County Sheriff’s Department mug photo system computer” and was
shown to Bolden who identified Horton. Trial Transcript Volume II at 416.
McClung has not demonstrated reversible error. See Powell v. State, 714 N.E.2d
624, 629-630 (Ind. 1999) (observing that “[a]t most the mug shot demonstrates
that [a codefendant], not the defendant, had been previously arrested” and
“[t]he arrest could have been for a misdemeanor, charges may never have been
filed, or charges may have been resolved short of a conviction through dismissal
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or acquittal,” and holding that the danger of unfair prejudice was minimal “in
that the mugshot was not of the defendant himself but merely of one of his
codefendants and no mention of a prior arrest or conviction was made to the
jury”).
4. Mention of Robbery
[21] McClung contends a witness testified that this case was “a classic robbery” and
this was later summarized for the jury as a “classic textbook robbery.”
Appellant’s Brief at 18 (quoting Trial Transcript Volume II at 413, 448). He
asserts that the witness’s legal conclusion was not admissible and cites Ind.
Evidence Rule 704(b) and Williams v. State, 43 N.E.3d 578 (Ind. 2015).
[22] When asked if he began drawing conclusions based on his experience and
walkthrough of the scene, Captain Kay answered:
Well, initially because, you know, we knew . . . had the
information and went there to purchase marijuana . . . from the
first appearance of a drug deal gone bad, but as information
come in and the scene started to be processed by the technicians
and things of that nature and the discovery of the duffle bag with
red mulch in it, it then became clear that it was just a classic
robbery. That that was a prop or whatever for the lure in and it
was clearly, I think I call it a classic robbery . . . a school . . . a
schoolyard bully type deal. Draw the individual into a enclosed
area, private area and surround them and, you know, bully them,
out of the money or whatever. What it appeared.
Trial Transcript Volume II at 413. During closing argument, the prosecutor
stated in part: “You also heard from . . . briefly from Captain Jay Kay and what
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did he describe after his conclusions of the crime scene? Classic textbook
robbery.” Id. at 448.
[23] We note that other witnesses testified regarding the robbery. Specifically,
Hollins testified that McClung shot him multiple times and McClung picked up
money from the ground that he had thrown to stop McClung from shooting
him. When asked if a conversation occurred in the garage regarding the plan to
rob Hollins, Ralph answered affirmatively. Bolden testified that he was serving
time for his part of the robbery and that he picked some money up off the
ground. When asked if he became aware that “they were going to rip off this
white guy, take his money,” Horton answered affirmatively. Id. at 309.
[24] Further, the post-conviction court found that Captain Kay was describing the
course of the investigation, conclusions officers made from the evidence at the
scene, and the type of crime. The court also found that the statement did not
implicate McClung in any way. Unlike in Williams, in which a detective
observed a controlled buy and later testified that “a transaction for cocaine”
occurred and where the Indiana Supreme Court found such a statement
violated Ind. Evidence Rule 704(b), 3 43 N.E.3d at 580, 583, Captain Kay’s
statement followed a question of his conclusion based merely upon his
experience and a walkthrough of the scene and not whether McClung was
3
Ind. Evidence Rule 704(b) provides: “Witnesses may not testify to opinions concerning intent, guilt, or
innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or
legal conclusions.”
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guilty. With respect to the prosecutor’s comment, McClung did not assert in
his petition that his trial counsel was ineffective for failing to object. Further,
the Indiana Supreme Court has held that “[a] prosecutor, in final arguments,
can ‘state and discuss the evidence and reasonable inferences derivable
therefrom so long as there is no implication of personal knowledge that is
independent of the evidence.’” Hobson v. State, 675 N.E.2d 1090, 1096 (Ind.
1996) (quoting Kappos v. State, 577 N.E.2d 974, 977 (Ind. Ct. App. 1991), trans.
denied). Again, there is no basis for reversal.
5. Cross-Examination of Bolden
[25] McClung argues that his trial counsel failed to conduct an adequate cross-
examination of Bolden, his co-defendant, because he did not question him
regarding Bolden’s grant of use immunity, his related criminal case, or if he
could reduce his own punishment. The trial court found that there was no deal
reached with the State to reduce Bolden’s conviction or sentence, and McClung
does not cite to the record for his assertion that Bolden provided his testimony
pursuant to a grant of use immunity and has not demonstrated reversible error.
6. Waiver of Jury Trial and Lesser-Included Instructions
[26] McClung argues that his trial counsel “did not adequately advise [him] of the
consequences of waiving jury and entering stipulations for Count III, nor did
trial counsel offer lesser-included instructions or discuss the subject of offering
lesser included instructions with” him. Appellant’s Brief at 19. McClung does
not further develop this argument, cite to the record to indicate he would not
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have waived a jury trial if properly informed, or specify which lesser-included
instructions his trial counsel should have offered. We cannot say that McClung
has demonstrated reversal is warranted or that any alleged errors combined to
constitute ineffective assistance.
B. Appellate Counsel
[27] McClung challenges the post-conviction court’s finding that his petition merely
stated that he failed to raise viable issues available to him in the direct appeal
and that neither his petition nor his tendered findings of fact and conclusions of
law indicated any more specific allegation. He asserts that his petition and
memorandum explained that the State failed to prove all of the elements of
robbery and cites to his memorandum of law in support of his petition for post-
conviction relief. He argues that his appellate counsel failed to submit the
photographs involved in the reference to photographs as demonstrative
evidence during final argument. He also contends his appellate counsel failed
to present the sentencing issue well and “made very little effort to argue about
the circumstances and the nature of the offense or mitigation evidence
concerning McClung’s history and character.” Appellant’s Brief at 25.
[28] In his brief, McClung does not cite to the trial record to support his argument
that the evidence was insufficient to support his robbery conviction. At the
time of the offense, Ind. Code § 35-42-5-1 provided that a person who
knowingly or intentionally takes property from another person or from the
presence of another person by using or threatening the use of force on any
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person or by putting any person in fear commits robbery, and the offense is a
class A felony if it results in serious bodily injury to any person other than a
defendant. 4 In light of the evidence noted and contained in the record, that
appellate counsel was not ineffective for failing to raise this issue. As for
McClung’s argument that his appellate counsel failed to include certain
photographs in the record, he does not point to the record to indicate that the
photographs were introduced or admitted at the post-conviction hearing. With
respect to his assertion that appellate counsel failed to present the sentencing
issue well, he does not develop an argument regarding what his appellate
counsel should have argued regarding the nature of the offense or his character.
We cannot say McClung has demonstrated that reversal is warranted.
[29] For the foregoing reasons, we affirm the denial of McClung’s petition for post-
conviction relief.
[30] Affirmed.
Robb, J., and Crone, J., concur.
4
Subsequently amended by Pub. L. No. 158-2013, § 450 (eff. July 1, 2014); Pub. L. No. 202-2017 § 25 (eff.
July 1, 2017).
Court of Appeals of Indiana | Memorandum Decision 20A-PC-413 | November 30, 2020 Page 19 of 19