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

• Court: Indiana Court of Appeals
• Decided: June 30, 2015
• Docket: 49A05-1405-PC-227
• Status: Published

Opinion

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