MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 12 2019, 9:33 am
court except for the purpose of establishing CCLERK LERK Indiana Supreme Court the defense of res judicata, collateral Indiana Court Court Supreme of Appeals Court of Appeals and and Tax Tax Court Court estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE J.S. Curtis T. Hill, Jr. Erie, Pennsylvania Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
J.S., March 12, 2019 Appellant-Petitioner, Court of Appeals Case No. 18A-PC-1728 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Thomas A. Appellee-Respondent Cannon, Jr., Judge Trial Court Cause No. 18C05-1701-PC-3
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019 Page 1 of 19 [1] J.S. appeals the post-conviction court’s order denying his petition for post-
conviction relief. J.S. argues that the post-conviction court erroneously
determined that he did not receive the ineffective assistance of appellate
counsel; he also raises a freestanding claim of error regarding this Court’s
decision in his direct appeal. Finding no error, we affirm.
Facts [2] This Court described the underlying facts in J.S.’s direct appeal:
In 2013, J.S. and A.B. were both graduate students at Ball State University. While enrolled at Ball State, both J.S. and A.B. resided in Muncie. After being introduced by a mutual friend, J.S. and A.B. entered into a “boyfriend and girlfriend” relationship in July of 2013. A.B. described this relationship as a monogamous, intimate relationship. This relationship continued while A.B. completed an internship in Fishers during the months of August, September, and October. After completing her internship, A.B. returned to Muncie in the beginning of November.
Upon returning to Muncie, A.B. began residing with J.S. in his apartment. A.B. moved all of the belongings which she needed to live into J.S.’s apartment. While residing in the apartment with J.S., A.B. helped with domestic functions such as cooking and cleaning. A.B. and J.S. shared the same bed and engaged in sexual relations. A.B. also completed a change of address and listed J.S.’s address as the address on her driver’s license.
A.B. continued to reside with J.S. in his apartment until she temporarily relocated to Houston for an internship in January of
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019 Page 2 of 19 2014. J.S. and A.B. planned to again cohabitate after A.B. returned from her internship in Houston.
A.B. and J.S. began to encounter problems with their relationship while A.B. was temporarily in Houston. A.B. attributed these problems, at least in part, to the distance between them. In March of 2014, J.S. flew to Houston to help A.B. drive back to Muncie. Once in Houston, J.S. and A.B. began to argue and at one point “broke[ ] up.” They then drove back to Muncie together.
Once back in Muncie, A.B. and J.S. continued to argue. As a result of the continuing argument, A.B. decided to move out of J.S.’s apartment. However, before she did so, during the evening hours of March 30, 2014, J.S. became physical with A.B.
J.S., who outweighed A.B. by approximately fifty to sixty pounds, grabbed A.B., read a text on A.B.’s cellular phone from A.B.’s mother, and “threw [A.B.] down onto the bed.” J.S. told A.B. “if you want to fight, we'll fight.” J.S. then straddled A.B., who began trying to get away from J.S. J.S. placed his hands around A.B.’s neck. A.B. placed her hands on J.S.'s wrists and, in an attempt to get him to stop, “squeeze[ed] his arms, sticking [her] nails into him.” A.B. was unable to free herself from J.S.
During their struggle, A.B. pleaded with J.S. to stop, telling him that he was hurting her. A.B. became scared after J.S. indicated that he “was going to kill” her. J.S. continued choking A.B. until she lost consciousness.
After regaining consciousness, A.B. fled J.S.’s apartment. A.B. made her way to a nearby apartment. The resident of that apartment notified the police who came to the scene and
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019 Page 3 of 19 documented A.B.’s demeanor and injuries. A.B. was subsequently transported away from the scene by police.
On June 13, 2014, Appellee–Plaintiff the State of Indiana (the “State”) charged J.S. with Class D felony strangulation, Class A misdemeanor domestic battery, and Class D felony criminal confinement. Following a three-day jury trial, the jury found J.S. guilty of Class A misdemeanor domestic battery and not guilty of Class D felony strangulation and Class D felony criminal confinement. The trial court subsequently imposed a six-month suspended sentence. . . .
J.S. v. State, No. 18A05-1505-CR-448, at *1-*2 (Ind. Ct. App. Dec. 22, 2015)
(internal citations omitted), trans. denied.
[3] J.S. filed a direct appeal. The two arguments raised by appellate counsel were
that (1) the domestic battery statute was unconstitutionally vague as applied to
J.S. and (2) there was insufficient evidence to support his conviction. Appellate
counsel did not raise a double jeopardy challenge because J.S. was only
convicted of one offense, and she did not allege prosecutorial misconduct
because she did not see any when she examined the record. This Court
affirmed, finding that the statute was not unconstitutionally vague and that
there was sufficient evidence. Id. at *3-*4. J.S.’s appellate counsel filed a
petition to transfer. After she filed that petition, J.S. demanded that she
withdraw, which she did. He then filed a pro se petition to transfer, which our
Supreme Court denied.
[4] On January 11, 2017, J.S. filed a petition for post-conviction relief, arguing
that he had received the ineffective assistance of appellate counsel. Following Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019 Page 4 of 19 an evidentiary hearing, the trial court denied J.S.’s petition on May 1, 2018.
J.S. now appeals.
Discussion and Decision I. Standard of Review [5] The general rules regarding the review of a ruling on a petition for post-
conviction relief are well established:
“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). “When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment.” Id. To prevail on appeal from the denial of post- conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post- conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). Although we do not defer to the post-conviction court’s legal conclusions, “[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.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (quotation omitted).
Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).
[6] J.S.’s primary argument on appeal is that the post-conviction court
erroneously determined that he did not receive the ineffective assistance of
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019 Page 5 of 19 appellate counsel. To establish ineffective assistance of appellate counsel, the
petitioner must show that (1) appellate counsel was deficient in his or her
performance, and (2) the deficiency resulted in prejudice. Id. at 269. Failure to
satisfy either prong will cause the claim to fail. Henley v. State, 881 N.E.2d 639,
644 (Ind. 2008). To satisfy the first prong, the defendant must show that
counsel’s representation fell below an objective standard of reasonableness,
committing errors so egregious that the defendant did not have the counsel
guaranteed by the Constitution. Hollowell, 19 N.E.3d at 269. To satisfy the
second prong, the defendant must show a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different. Id.
II. Assistance of Appellate Counsel [7] J.S. raises multiple arguments, which we consolidate and restate as follows:
(1) counsel was ineffective in the manner in which she presented her arguments
on appeal; (2) counsel was ineffective for failing to raise claims of prosecutorial
misconduct; and (3) counsel was ineffective for failing to object to the State’s
brief on direct appeal.1
1 J.S. also argues that appellate counsel should have raised a double jeopardy claim. Given that J.S. was only convicted of one offense, it is readily apparent that there is no basis for a double jeopardy argument. It is true that double jeopardy may be an issue in “cases in which there has been an acquittal on one charge and retrial on another charge after a hung jury.” Garrett v. State, 992 N.E.2d 710, 714 (Ind. 2013). Here, however, J.S. was convicted of one charge and acquitted of two others; therefore, the Garrett scenario is not applicable. J.S. was only put in jeopardy—the risk of trial and conviction—once. Therefore, appellate counsel was not ineffective on this basis.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019 Page 6 of 19 A. Arguments Raised on Direct Appeal [8] J.S. first argues that appellate counsel was deficient in the way in which she
presented the arguments regarding the sufficiency of the evidence supporting his
conviction and the constitutionality of the domestic battery statute.
1. Sufficiency of the Evidence [9] To convict J.S. of Class A misdemeanor domestic battery, the State was
required to prove beyond a reasonable doubt that he knowingly and
intentionally touched A.B. in a rude, insolent, or angry manner, resulting in
bodily injury, and that A.B. is or was living as his spouse. Ind. Code § 35-42-2-
1.3.
[10] In arguing that the evidence was insufficient to support J.S.’s domestic battery
conviction, appellate counsel first cited the correct standard of review and
then noted correctly that the State was required to prove beyond a reasonable
doubt that J.S. and A.B. had been living as if they were spouses. Appellant’s
Br. on Direct Appeal p. 16-17. To make that case, the State was required to
address the following factors:
(1) the duration of the relationship; (2) the frequency of contact; (3) the financial interdependence; (4) whether the two (2) individuals are raising children together; (5) whether the two (2) individuals have engaged in tasks directed toward maintaining a common household; and (6) other factors the court considers relevant.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019 Page 7 of 19 I.C. § 35-42-2-1.3(c). Appellate counsel argued that “the only operative facts
which were used to establish that [A.B.] and Mr. J.S. had previously been
‘living as if a spouse’ of the other were that they had dated and that they had an
intimate sexual relationship.” Appellant’s Br. on Direct Appeal p. 17.
[11] It is true that appellate counsel could have elaborated on this argument, but we
find that even if she had, we would have affirmed the conviction. This Court
found the following evidence supported the conclusion that J.S. and A.B. had
been living as if spouses:
The record reveals that J.S. and A.B., both students at Ball State University, had resided together in J.S.’s apartment for nearly three months before A.B. temporarily relocated to Houston for an internship. They had engaged in a “boyfriend and girlfriend” relationship for several months before residing together. While residing together in J.S.’s apartment, A.B. moved her belongings into the apartment and helped with domestic functions such as cooking and cleaning. In addition, A.B. and J.S. shared the same bed and engaged in sexual relations. A.B. also completed a change of address and listed J.S.’s address as the address on her driver’s license. J.S. and A.B. also planned to cohabitate after A.B. returned from her internship in Houston.
J.S., No. 18A05-1505-CR-448, at *3 (internal citation omitted). We find that
even if appellate counsel had elaborated on this argument, it would have been
to no avail. In other words, J.S. cannot establish prejudice on this basis.
[12] J.S. contends that appellate counsel should have also challenged the
sufficiency of the evidence supporting the other elements of the domestic
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019 Page 8 of 19 battery statute. We disagree that any arguments in this regard would have
changed the result. The State presented overwhelming evidence that J.S.
battered and injured A.B. Specifically, A.B. testified that he threw her on the
bed, straddled her, put his hands around her neck, and squeezed until she lost
consciousness. She stated that when she regained consciousness, pain was
radiating from her head and neck and that it hurt to swallow and talk. Police
officers and a physician corroborated her testimony by testifying about her
many injuries, including redness, fingerprints on her neck, red eyes, a raspy
voice, and difficulty swallowing.2 Given that this evidence readily supports the
jury’s conclusion that J.S. touched A.B. in a rude, insolent, or angry manner,
causing bodily injury, J.S.’s claim of ineffective assistance of appellate counsel
based on counsel’s failure to make an argument in this regard must fail.
2. Constitutionality of Domestic Battery Statute [13] J.S. also argues that his appellate counsel was deficient in the way in which she
argued that the domestic battery statute was unconstitutional. Before 2003, the
statute did not define “living as if a spouse.” I.C. § 35-42-2-1.3 (2002). After
this Court found that the statute was unconstitutionally vague as applied
2 To the extent that J.S. argues that counsel should have contended that A.B.’s testimony was incredibly dubious, we note that the rule of incredible dubiosity applies only when a sole witness testifies. Carter v. State, 31 N.E.3d 17, 30-31 (Ind. Ct. App. 2015). Here, A.B.’s testimony was corroborated in relevant part by law enforcement officers and medical personnel. Therefore, under no circumstances would A.B.’s testimony have been found to be incredibly dubious.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019 Page 9 of 19 to the defendant in Vaughn v. State, 782 N.E.2d 417, 420-21 (Ind. Ct. App.
2003), the General Assembly amended the statute. The version of the statute in
effect at the time J.S. committed his crime provided that the factors set forth
above must be considered in determining whether a person is or was living as a
spouse of another individual. I.C. § 35-42-2-1.3(c).
[14] In J.S.’s direct appeal, appellate counsel argued that the version of the statute
in effect at the time he committed his crime was unconstitutionally vague as
applied to him. See Appellant’s Br. on Direct Appeal p. 15-16.3 She directed
this Court’s attention to the following facts in the record in support of the
argument:
Here, Mr. J.S. was the only person on the lease to the apartment at Anthony Apartments. He paid the rent and utilities. [A.B.] did not have a key to the apartment. She did not contribute financially to the household. The parties had separate checking and savings accounts. [A.B.] had been living in Houston, Texas from the beginning of January until the end of March 2014. Prior to that, she had lived in Carmel, Indiana and North Carolina. The parties had been dating for only a short period of time.
The only operative facts which were used to establish that [A.B.] and Mr. J.S. had previously been “living as if a spouse” of the other were that they had dated and that they had an intimate sexual relationship. It is not enough that two individuals have dated and those individuals had a sexual relationship during that
3 J.S. claims that counsel based her argument on the prior version of the statute, but it is apparent that he is wrong, inasmuch as the brief discusses the factors listed above. Appellant’s Br. on Direct Appeal p. 15-16.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019 Page 10 of 19 time. The Court found in Vaughn v. State, 782 N.E2d 417 (Ind. [Ct.] App. 2003) that something more than living together and having a sexual relationship is required to establish individuals are living together as spouses. At the most, [A.B.] and Mr. J.S. could have “lived together” for only a matter of days due to their internships and travels during winter break.
Therefore, the statute as it applies to Mr. J.S. is unconstitutionally vague and his conviction should be vacated.
Id. at 16. While the argument was not successful, we find that appellate counsel
did the best she could with the record before her. Given the facts in the record
clearly supporting a conclusion that J.S. and A.B. were living as if spouses, as
well as the heavy burden to carry when arguing that a statute is
unconstitutional, we find that appellate counsel was not deficient in the way in
which she presented this argument.
B. Prosecutorial Misconduct [15] Next, J.S. argues that appellate counsel should have raised multiple claims of
prosecutorial misconduct. Initially, we note that no prosecutorial misconduct
objections were raised at trial. As a result, to succeed with such a claim on
direct appeal would require showing fundamental error. Ryan v. State, 9 N.E.3d
663, 667 (Ind. 2014). Specifically, he would have had to show “a blatant
violation of basic principles, [that] the harm or potential for harm is substantial,
and [that] the resulting error denies the defendant fundamental due process.”
Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). Under these circumstances,
appellate counsel reasonably concluded as a strategic decision
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019 Page 11 of 19 that the likelihood of success on appeal was so slim that it would have been
futile to make the argument. That said, we will address each of J.S.’s
contentions specifically.
1. Doyle Violation [16] J.S. testified at his trial. At several points during his testimony, the State
questioned him about his decision to decline to participate in a university
review board hearing. Direct Appeal Tr. Vol. III p. 240-45; see also id. at Vol.
III p. 82 (emphasizing in closing arguments, “If it’s nothing more than a shove,
why not tell the review board? Why not stand on the table and shout that’s
what happened? But, he chose not to.”). J.S. contends that by pursuing this
line of argument, the State violated his constitutional rights. Specifically, he
argues that the prosecutor committed misconduct by impeaching J.S. with his
silence at the university review board hearing.
[17] The prosecution may not use statements from a custodial interrogation unless
the defendant was warned of his Fifth Amendment “right to remain silent.”
Miranda v. Arizona, 384 U.S. 436, 444 (1966). Because Miranda warnings
implicitly assure a defendant “that silence will carry no penalty,” the United
States Supreme Court held that “it would be fundamentally unfair and a
deprivation of due process to allow the arrested person’s silence to be used to
impeach an explanation subsequently offered at trial.” Doyle v. Ohio, 426 U.S.
610, 618 (1976). Our Supreme Court has further explained that
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019 Page 12 of 19 [a] defendant who receives Miranda warnings is advised that he may remain silent; he is not warned that the right continues only while he is in the custody of the arresting officers. Penalizing the accused for silence before trial is no less punishment for the exercise of a right than penalizing silence at the time of arrest.
Jones v. State, 265 Ind. 447, 451, 355 N.E.2d 402, 405 (Ind. 1976). However,
when “a defendant does not remain silent, he cannot later claim that the silence
was used against him.” Sylvester v. State, 698 N.E.2d 1126, 1131 (Ind. 1998).
[18] Here, J.S. initially talked to the police, but then asked for a lawyer.4 After he
was released on bail, but before the review board hearing, he spoke to members
of the board. He then declined to participate in the hearing.
[19] J.S. was not permitted to “remain ‘selectively’ silent and later claim[] that
voids in the incomplete statement are sheltered by the Fifth Amendment and
under Doyle cannot be used to impeach his testimony.” Carlyle v. State, 428
N.E.2d 10, 13 (Ind. 1981); see also United States v. Bonner, 302 F.3d 776, 784 (7th
Cir. 2002) (observing that “it would not serve the criminal justice system to
allow defendants to use the Fifth Amendment as both a shield and as a sword,
answering questions selectively and preventing the prosecution from
mentioning such selectiveness at trial”). Furthermore, the review board was
not required to provide J.S. with Miranda warnings because the hearing was
not a custodial interrogation. Miranda, 384 U.S. at 478-79. There can be no
4 The State did not use that request against him.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019 Page 13 of 19 Doyle violation without Miranda warnings because they are “prerequisites for
finding a constitutional violation.” Myers v. State, 27 N.E.3d 1069, 1080 (Ind.
2015). Under these circumstances, it is apparent that it would have been futile
for appellate counsel to claim a Doyle violation; therefore, we find no ineffective
assistance on this basis.
2. Vouching for Witnesses [20] Doyle next argues that the prosecutor committed misconduct by vouching for
the police officer witnesses. During closing, the prosecutor argued,
Now, would the Ball State Police Department? Do they have any reason to lie about what they saw that night? Four officers, do they have any reason to lie? In fact, if the[y] did, you know what? Their job, their profession as police officers is done. No better to end a police officer’s career, then have them lie on the stand. Their credibility is destroyed forever. They had no reason to lie. They don’t care. It’s another student-on-student violent act. They do that all the time. Not to this degree, but they deal with it all the time.
Direct Appeal Tr. Vol. III p. 84.
[21] While a prosecutor may not personally vouch for a witness, he may “‘comment
on the credibility of the witnesses as long as the assertions are based on reasons
which arise from the evidence.’” Cooper v. State, 854 N.E.2d 831, 836 (Ind.
2006) (quoting Lopez v. State, 527 N.E.2d 1119, 1127 (Ind. 1988)). A prosecutor
may also “respond to allegations and inferences raised by the defense even if the
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019 Page 14 of 19 prosecutor’s response would otherwise be objectionable.” Dumas v. State, 803
N.E.2d 1113, 1118 (Ind. 2004).
[22] Here, the prosecutor’s argument was based on the record, which did not show a
reason for the police officers to lie. Moreover, J.S. repeatedly implied that the
police conducted an incomplete investigation and lied about their observations,
meaning that the prosecutor was entitled to respond. See id.
(holding that the prosecutor “was entitled to counter with argument that the
witness was not lying and had no reason to do so”). Finally, the trial court
instructed the jury that statements made by the attorneys are not evidence.
Under these circumstances, even if appellate counsel had made this argument,
J.S. would not have prevailed. We find no error on this basis.
3. Appealing to Jury’s Passions [23] Finally, J.S. argues that the prosecutor committed misconduct by appealing to
the jury’s passions. A prosecutor may not request a jury to convict the
defendant for any reason other than his guilt or “phrase a final argument in a
manner calculated to inflame the passions or prejudice of a jury.” Jerden v.
State, 37 N.E.3d 494, 499 (Ind. Ct. App. 2015).
[24] Here, in closing arguments, the prosecutor made the following statements:
Well, we have an extremely vivid account of what happened in that bedroom on March 30, from [A.B.] She told the police at the scene. She gave a voluntary statement at the hospital. She testified at the board review hearing, and also, you heard her sit right there, facing that man, put his hands on her as he tried to
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019 Page 15 of 19 choke the life out of her. She stood up to him. She told you what happened. Consistent, consistent, consistent. Can you imagine what it must have taken to walk into this courtroom, walk past him, sit there and have to look at [the] person who did that to you? That is not an easy thing to do, and many, many victims of domestic violence can’t do that. That did happen here today.
Direct Appeal Tr. Vol. III p. 74. This argument was not an attempt to get the
jury to convict J.S. for any reason other than his guilt. Instead, it emphasized
that A.B.’s testimony was credible because it was consistent with what she had
told the police at the scene and because it would have been difficult for A.B. to
face her attacker. Moreover, it is apparent that the jury’s passions and
prejudice were not inflamed, inasmuch as it found J.S. not guilty of the two
felony charges. Under these circumstances, appellate counsel was not
ineffective for failing to make this argument.
[25] J.S. also argues that appellate counsel should have contended that the
cumulative effect of the prosecutor’s conduct amounted to fundamental error.
We have found no instances of misconduct—or anything coming close to
misconduct—therefore, counsel could not have showed cumulative misconduct
that denied J.S. a fair trial. In sum, we find that appellate counsel was not
ineffective for failing to raise any arguments regarding prosecutorial
misconduct.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019 Page 16 of 19 C. State’s Brief on Direct Appeal [26] Next, although slightly unclear, J.S. seems to argue that appellate counsel
should have objected to the State’s brief on direct appeal.5 He argues,
essentially, that the State’s statement of facts contains facts that are related to
the two charges of which he was acquitted as well as the charge of which he
was convicted.
[27] Indiana Appellate Rule 46(A)(6) states that the statement of facts “shall
describe the facts relevant to the issues presented for review . . . in accordance
with the standard of review appropriate to the judgment or order being
appealed.” J.S. challenged the constitutionality of the domestic battery statute
and the sufficiency of the evidence supporting that conviction, meaning that it
was appropriate for the State to recite all facts supporting that conviction, which
it did.
[28] What J.S. seems to be arguing is that it was inappropriate for the State to
include evidence that he choked A.B. until she lost consciousness. But this
evidence was not limited to the strangulation charge (of which he was
acquitted), as the State did not specifically allege which touching supported the
domestic battery in the charging information. We can only conclude that the
5 J.S. couches it in terms of prosecutorial misconduct, claiming that appellate counsel should have argued that the State committed prosecutorial misconduct via the content of its brief. We decline to find that a Deputy Attorney General representing the State on appeal is a prosecutor who can commit prosecutorial misconduct, but we will reframe the argument so that the substance may be addressed.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019 Page 17 of 19 choking is evidence of domestic battery. Because Indiana does not use special
verdicts, we do not know why the jury acquitted J.S. of strangulation. It may
have believed, for example, that he did not impede her breathing or blood
circulation. But the jury most likely convicted him of domestic battery for the
choking because the evidence showed that her injuries resulted from that act.
Therefore, any objection lodged or motion to strike filed by J.S.’s appellate
counsel would have been unsuccessful.6 We find no ineffective assistance on
this basis.
III. This Court’s Discussion on Direct Appeal [29] Finally, J.S. makes another somewhat unclear argument regarding this
Court’s opinion on direct appeal. It seems as though he raises a freestanding
claim of error that is similar to that raised regarding the State’s brief—he
complains that this Court discussed evidence regarding the choking when he
was convicted of domestic battery but acquitted of strangulation. This is an
issue that was known and available on direct appeal because he could have
raised it in a petition for rehearing or a petition to transfer.7 As such, it is
unavailable on post-conviction review. Williams v. State, 808 N.E.2d 652, 659
(Ind. 2004).
6 We also note that all of these facts were in the record on appeal, meaning that they were available to the Court regardless of whether they were included in the State’s brief. 7 J.S. argues that he could not have raised a new issue in a petition for rehearing. But an argument that this Court erred in its decision is precisely the type of issue that should be raised on rehearing.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019 Page 18 of 19 [30] Even if J.S. had not waived this claim, it is meritless. This Court explicitly
noted that he was acquitted of the strangulation and criminal confinement
charges, and its discussion of the underlying facts in no way implies otherwise.
He is not entitled to relief for this claim.
[31] The judgment of the post-conviction court is affirmed.
May, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019 Page 19 of 19