MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 30 2016, 8:05 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT, PRO SE ATTORNEYS FOR APPELLEE Shane Kervin Gregory F. Zoeller Indiana Department of Correction Attorney General Bunker Hill, Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Shane Kervin, September 30, 2016 Appellant-Petitioner, Court of Appeals Case No. 79A02-1410-PC-766 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Thomas Busch, Appellee-Respondent. Judge Trial Court Cause No. 79D02-1306-PC-11
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016 Page 1 of 19 Statement of the Case [1] Shane Kervin (“Kervin”) appeals from the post-conviction court’s denial of his
petition for post-conviction relief, in which he alleged that he had received
ineffective assistance of trial and appellate counsel. Kervin also appeals the
post-conviction court’s ruling denying his request for a supplemental
evidentiary hearing. Concluding that Kervin has failed to meet his burden of
showing that: (1) the post-conviction court abused its discretion by denying his
request for a supplemental evidentiary hearing; and (2) the post-conviction
court erred by denying relief on his allegations of ineffective assistance of
counsel and showing, we affirm the post-conviction court’s judgment.
[2] We affirm.
Issues 1. Whether the post-conviction court abused its discretion by denying Kervin’s request for a supplemental evidentiary hearing.
2. Whether the post-conviction court erred by denying post- conviction relief on Kervin’s claim of ineffective assistance of trial and appellate counsel.
Facts1 [3] The facts of Kervin’s crimes were set forth in the memorandum decision from
his direct appeal as follows:
1 We note that Kervin’s Appendix does not comply with our Appellate Rules, including, most notably, the rule requiring the inclusion of a table of contents that “shall specifically identify each item contained in the Appendix, including the item’s date.” Ind. Appellate Rule 50(C). Kervin’s failure to comply with the
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016 Page 2 of 19 In October 2008, Kervin delivered cocaine to Detective Walters of the Lafayette Police Department in an undercover drug buy. As a result of this occurrence, Kervin was charged with dealing in cocaine, as a Class A felony,[2] and possession of cocaine, as a Class B felony. Ind. Code § 35-48-4-6 (2006). [Prior to trial, the trial court found Kervin to be incompetent to stand trial and ordered him to be placed at Logansport State Hospital until the trial court later determined him to be competent to stand trial.] At trial, the audio recording of the drug transaction was admitted into evidence over Kervin’s objection and played for the jury. Once the State rested, Kervin testified in his own defense and asserted the defense of entrapment. In order to impeach Kervin, the State questioned him about prior criminal convictions, including a prior conviction of conspiracy to commit robbery.
The jury found Kervin guilty of both charges. At sentencing, the trial court [found Kervin guilty but mentally ill of both charges and] merged the Class B felony into the Class A felony and sentenced Kervin to thirty years with eight years suspended to probation.
Kervin v. State, No. 79A04-1008-CR-474, *1 (Ind. Ct. App. Nov. 16, 2011)
(additional relevant facts added in brackets), trans. denied.
[4] On direct appeal, Kervin raised two arguments challenging the trial court’s
admission of evidence during his jury trial. Specifically, he argued that the trial
court abused its discretion by admitting: (1) evidence of his prior conviction for
Appellate Rules and his disorganized Appendix have impeded our review of this case. Additionally, Kervin, contrary to Appellate Rule 50, included a copy of the post-conviction hearing in his Appendix. See App. R. 50(F) (explaining that a party “should not reproduce any portion of the Transcript in the Appendix” because the “Transcript is transmitted to the Court on Appeal pursuant to Rule 12(B)”). 2 Kervin’s dealing charge was enhanced to a Class A felony based on his delivery of the drug within 1,000 feet of a family housing complex. See IND. CODE § 35-48-4-1(b)(3)(B)(iii) (2006).
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016 Page 3 of 19 conspiracy to commit robbery, arguing that it was not an impeachable offense;
and (2) the audio recording of his drug transaction with an undercover officer,
arguing that it was not of sufficient clarity. Id. Another panel of our Court held
that Kervin had waived his challenge to the admission of his prior conspiracy to
commit robbery conviction by failing to raise a timely objection at trial and
that, waiver notwithstanding, any error in the admission of the evidence was
harmless error because Kervin had a prior conviction for confinement that was
used to impeach him. Id. at *1-2. Our Court also held that the trial court had
not abused its discretion by admitting the audio recording and that, even if it
had, any error would be harmless because it was cumulative of Detective
Walters’ testimony. Id. at *2-3.
[5] Subsequently, in November 2012, Kervin filed a pro se petition for post-
conviction relief and later filed an amended petition in 2013. In these petitions,
Kervin raised post-conviction claims of ineffective assistance of trial and
appellate counsel. Specifically, Kervin alleged that his trial counsel had
rendered ineffective assistance by: (1) failing to object to the State’s evidence
regarding his prior conspiracy to commit robbery conviction; (2) failing to show
that the State did not rebut his entrapment defense; (3) failing to raise a defense
and show mitigating factors for the enhancement of his dealing conviction
(being within 1,000 feet of a family housing complex); (4) failing to “investigate
circumstances and surrounding events[;]” and (5) failing to request a Franks
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016 Page 4 of 19 hearing3 to challenge the probable cause affidavit. (App. 405). In regard to
Kervin’s ineffective assistance of appellate counsel claim, he alleged that his
counsel had rendered ineffective assistance by “fail[ing] to argue Brady material4
and exculpatory evidence.” (App. 405). Kervin did not allege or specify what
exculpatory evidence his appellate counsel had failed to argue.
[6] During the course of the post-conviction proceedings, Kervin sought to obtain a
copy of a police body wire recording5 and accompanying transcripts that were
introduced as exhibits during his jury trial.6 In March 2013, the post-conviction
court ordered Kervin’s trial counsel to provide a copy of his file to Kervin. The
court also stated that it would address Kervin’s request for the recording.
[7] Meanwhile, in May 2013, Kervin filed a motion for change of judge, which the
post-conviction court granted.7 Thereafter, in June 2013, Kervin filed a request
for subpoenas. Specifically, Kervin sought to have subpoenas issued to: his
trial counsel, Patrick Manahan (“Trial Attorney Manahan”); his appellate
counsel, Bruce Graham (“Appellate Attorney Graham”); his trial judge, Judge
Randy Williams; various police officers who testified or were involved in his
3 Franks v. Delaware, 438 U.S. 154 (1978). 4 Brady v. Maryland, 373 U.S. 83 (1963). 5 The body wire was worn by Detective Walters. 6 The recording was admitted as State’s Exhibit 2, and the two accompanying transcripts were admitted as State’s Exhibits 2a and 2b. 7 After the Honorable Randy J. Williams granted Kervin’s change of judge motion, the Honorable Thomas H. Busch assumed jurisdiction of Kervin’s post-conviction proceeding.
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016 Page 5 of 19 underlying case; the informant who gave his name to police; Dr. Jeffrey Wendt,
who had performed a pre-trial competency evaluation of Kervin; and a member
of the ACT team, which was a group that provided housing and living
assistance to Kervin at the time of his crimes.
[8] On August 22, 2013, the post-conviction court held a video conference hearing
during which Kervin’s requests for subpoenas and the body wire transcripts
were discussed. The State objected to Kervin’s subpoena requests, contending
that some of his proposed witnesses were not relevant or probative of his
ineffective assistance of counsel claims, and the post-conviction court ordered
the parties to brief the issue. In regard to Kervin’s request for the body wire
transcript, the post-conviction court directed the court reporter to provide
Kervin with a copy of the transcripts of the recording that had been submitted
during his trial. Thereafter, in January 2014, the post-conviction court agreed
to issue subpoenas to Kervin’s trial and appellate counsel but denied his request
for the remaining subpoenas.
[9] On April 11, 2014, the post-conviction court held a hearing on Kervin’s post-
conviction petition. At the beginning of the hearing, Kervin stated that he had
not received a copy of the body wire recording or transcripts. The State and
Kervin disagreed on whether the transcripts and recording were relevant to his
post-conviction claims. The post-conviction court informed Kervin that it
would allow him to proceed with the post-conviction hearing and his
presentation of witnesses and, thereafter, would provide him with an
opportunity to file a memorandum as to whether an additional hearing was
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016 Page 6 of 19 necessary based on the recording and transcripts. Kervin confirmed that he
understood that he could submit a memorandum for the trial court to then
determine whether there was a need for a further hearing.
[10] During the hearing, Kervin represented himself pro se and called his trial
counsel and appellate counsel as witnesses. Kervin’s trial counsel testified, in
relevant part, that prior to raising the defense of entrapment at trial, he had
done research and investigated the facts surrounding Kervin’s offense and his
background and psychological issues. Trial counsel also testified that he raised
the entrapment defense “based on [his] research of the facts and the evidence in
[Kervin’s] particular case,” even though he “was concerned that it was not
going to be a successful defense.” (Tr. 96).
[11] Appellate Attorney Graham testified that he had reviewed the trial transcripts
and evidence and had decided to raise the two evidentiary appellate issues
because he considered them to be the two strongest issues. Appellate Attorney
Graham also testified that he had not raised an appellate issue about the
entrapment defense because Kervin had “lost factually at trial.” (Tr. 45).
[12] The post-conviction court stated that it would obtain and admit Kervin’s trial
transcript and exhibits into evidence. At the end of the hearing, the post-
conviction court again informed Kervin that he would receive a copy of the
body wire recording and transcripts, and the court instructed the parties to file
proposed findings and conclusions thereafter.
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016 Page 7 of 19 [13] On June 24, 2014, Kervin filed a motion to set a supplemental hearing. In his
motion, he asserted that “[t]he [s]econd evidentiary hearing is contingent upon
the petitioner not receiving” the tape recording and transcript of the body wire
worn by Detective Walters, which was introduced at trial as State’s Exhibit 2.
(App. 295). Kervin also stated that he wanted to have a supplemental hearing
so he could re-subpoena and further question his trial and appellate counsel.
[14] On July 24, 2014, the post-conviction court denied Kervin’s motion for a
supplemental hearing. In its order, the post-conviction court—after noting that
the “transcript of the body wire [wa]s part of the appellate record of [Kervin’s]
underlying conviction” and that it had been forwarded to both parties following
the post-conviction hearing—concluded that “[n]o further hearing [wa]s
required.” (App. 285).
[15] Thereafter, on September 25, 2014, the post-conviction issued an order denying
Kervin’s petition for post-conviction relief on all claims of ineffective assistance
of trial and appellate counsel specifically raised by Kervin in his post-conviction
petitions. Kervin now appeals.
Decision [16] Kervin appeals the post-conviction court’s order denying post-conviction relief
on his 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
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016 Page 8 of 19 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 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. Additionally, “[w]e will not reweigh the
evidence or judge the credibility of the witnesses; we examine only the
probative evidence and reasonable inferences that support the decision of the
post-conviction court.” Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007),
reh’g denied, cert. denied.
1. Post-Conviction Procedural Ruling
[17] Before addressing Kervin’s post-conviction claims, we will first address his
challenge to the post-conviction court’s procedural ruling that occurred during
the course of this post-conviction proceeding. Specifically, Kervin argues that
the post-conviction court erred by denying his request for a supplemental
hearing.
[18] We review a post-conviction court’s decision to deny a petitioner’s request for a
supplemental evidentiary hearing for an abuse of discretion. See Pannell v. State,
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016 Page 9 of 19 36 N.E.3d 477, 486 (Ind. Ct. App. 2015) (explaining that a post-conviction
court has “discretion to refuse to hold an additional hearing”), trans. denied.
Indeed, “the decision about whether or not to hold a hearing is ‘best left to the
[post-conviction] court’s discretion.’” Id. (quoting Smith v. State, 822 N.E.2d
193, 201 (Ind. Ct. App. 2005), trans. denied).
[19] Here, at the post-conviction hearing, after Kervin stated that he had not
received a copy of the body wire recording or transcripts, the post-conviction
court stated that it would ensure that he received a copy of those trial exhibits.
The post-conviction court also informed Kervin that it would allow him to
thereafter file a memorandum regarding whether a supplemental hearing was
necessary. When Kervin filed his motion for a supplemental hearing, he
asserted that “[t]he [s]econd evidentiary hearing [was] contingent upon the
petitioner not receiving” the recording and transcripts of the body wire. (App.
295). He also stated that he wanted to have a supplemental hearing so he could
re-subpoena and further question his trial and appellate counsel. The post-
conviction court denied Kervin’s motion for a supplemental hearing, noting
that “[n]o further hearing [wa]s required” because Kervin had received a copy
of the requested trial exhibits. (App. 285). Additionally, he had already had
the opportunity to question his trial and appellate counsel during the initial
post-conviction hearing.
[20] Kervin has not shown that the post-conviction court’s denial of his motion
constituted an abuse of discretion. Indeed, Kervin had an evidentiary hearing
where he was able to question his trial and appellate counsel on his ineffective
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016 Page 10 of 19 assistance of counsel claims. Moreover, he did not raise any post-conviction
claims specifically relating to the body wire recording and transcripts. Because
Kervin has failed to show how the post-conviction court’s denial of his request
for the supplemental hearing was an abuse of the court’s discretion, we affirm
the trial court’s ruling.8
2. Post-Conviction Claims – Ineffective Assistance of Counsel
[21] Next, we turn to Kervin’s post-conviction claims regarding ineffective
assistance of trial and appellate counsel.
[22] We apply the same standard of review to claims of ineffective assistance of
appellate counsel and 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 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
(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
8 In support of Kervin’s argument on this issue, he cites to Hamner v. State, 739 N.E.2d 157 (Ind. Ct. App. 2000). We note, however, that Hamner involved review of a post-conviction court’s denial of an initial evidentiary hearing, not a supplemental hearing as we have here.
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016 Page 11 of 19 ‘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.
A. Trial Counsel
[23] Kervin argues that his trial counsel rendered ineffective assistance by: (1)
failing to “effectively establish in the presence of the jury (fact finder) that the
[S]tate [had] failed to rebut both prongs of [his] defense of entrapment; and (2)
failing to present the statutory mitigating factors relating to the enhancement of
his dealing offense for being within 1,000 feet of a family housing complex,
specifically that he was present at the family housing complex for only a brief
period of time and at the suggestion of the police.9
[24] Before addressing Kervin’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,
9 Kervin also appears to attempt to argue other ineffective assistance of trial counsel claims. These arguments are waived because he did not provide a cogent argument, see Ind. App. Rule 46(A)(8)(a), or because he did not raise them in his post-conviction petitions. See Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001) (“Issues not raised in the petition for post-conviction relief may not be raised for the first time on post-conviction appeal.”), reh’g denied, cert. denied; Ind. Post–Conviction Rule 1(8) (“All grounds for relief available to a petitioner under this rule must be raised in his original petition.”).
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016 Page 12 of 19 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.
[25] In regard to Kervin’s two ineffective assistance of trial counsel claims, the post-
conviction court determined that Kervin had failed to meet his burden of
establishing grounds for relief on these claims. The post-conviction court made
several findings (Findings 8-19) on Kervin’s claim that his trial counsel failed to
show that the State had not rebutted his entrapment defense. It also entered
findings (Findings 20-23) addressing his claim that his trial counsel had failed to
argue statutory mitigating factors that could have mitigated the enhancement of
his dealing offense for being within 1,000 feet of a family housing complex (i.e.,
that he was present at the family housing complex for only a brief period of
time and at the suggestion of the police).
[26] Turning to Kervin’s claim that his trial counsel failed to show that the State had
not rebutted his entrapment defense, we note that our Indiana Supreme Court
recently explained the defense of entrapment as follows:
Entrapment in Indiana is statutorily defined:
(a) It is a defense that:
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016 Page 13 of 19 (1) the prohibited conduct of the person was the product of a law enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and
(2) the person was not predisposed to commit the offense.
(b) Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.
Ind. Code § 35-41-3-9 (2008). A defendant does not need to formally plead the entrapment defense; rather, it is raised, often on cross-examination of the State’s witnesses, by affirmatively showing the police were involved in the criminal activity and expressing an intent to rely on the defense. Wallace v. State, 498 N.E.2d 961, 964 (Ind. 1986); Fearrin v. State, 551 N.E.2d 472, 473 (Ind. Ct. App. 1990). Officers are involved in the criminal activity only if they “directly participate” in it. Shelton v. State, 679 N.E.2d 499, 502 (Ind. Ct. App. 1997) (finding, where officers merely placed deer decoy in field, they did not “directly participate in the criminal activity of road hunting,” and the defendants thus failed to raise the entrapment defense). The State then has the opportunity for rebuttal, its burden being to disprove one of the statutory elements beyond a reasonable doubt. Riley v. State, 711 N.E.2d 489, 494 (Ind. 1999); McGowan v. State, 674 N.E.2d 174, 175 (Ind. 1996) (holding because entrapment is established by the existence of two elements, it is defeated by the nonexistence of one). There is thus no entrapment if the State shows either (1) there was no police inducement, or (2) the defendant was predisposed to commit the crime. Riley, 711 N.E.2d at 494.
Griesemer v. State, 26 N.E.3d 606, 608-09 (Ind. 2015).
[27] When addressing Kervin’s claim that his trial counsel failed to show that the
State had not rebutted his entrapment defense, the post-conviction court
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016 Page 14 of 19 recounted the entrapment-related evidence presented at trial that tended to
rebut Kervin’s entrapment defense, and then made the follow relevant finding:
18. Furthermore, counsel submitted an instruction to the jury on entrapment, and argued that defense on closing. Counsel gave the jury the opportunity to consider that the act of dealing was induced by the State, and that [Kervin] was not predisposed to deal, but the jury did not agree that the State had not refuted that contention, and found [Kervin] guilty. Trial record at 372, 389-91.
(App. 197). Contrary to Kervin’s assertion, his trial counsel’s performance was
not deficient. Furthermore, Kervin has failed to show what more his counsel
should have done and that there is a reasonable probability that, but for his trial
counsel’s alleged errors, the result of the proceeding would have been different.
Accordingly, we affirm the post-conviction court’s denial of post-conviction
relief on this ineffective assistance of counsel claim.
[28] Next, we review Kervin’s claim that his trial counsel was ineffective for failing
to show statutory mitigating facts for the enhancement of his dealing offense.
Here, Kervin was charged with dealing cocaine, which was elevated to a Class
A felony because he dealt it within 1,000 feet of a family housing complex. See
I.C. § 35-48-4-1(b)(3)(B)(iii) (2006). INDIANA CODE §§ 35-48-4-16(b) and (c)
provide that it is a defense to the enhancement to a Class A felony if the
individual was only within 1,000 feet of a family housing complex briefly or if
the individual was there only at the request or suggestion of law enforcement.
[29] During the post-conviction hearing, Kervin’s trial counsel testified that he was
aware of these factors under INDIANA CODE § 35-48-4-16 and that he did not
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016 Page 15 of 19 raise them because there was trial evidence showing that Kervin directed the
detective to the apartment complex and that he was there for more than just a
brief time. When denying Kervin post-conviction relief on this ineffective
assistance of counsel claim, the post-conviction court found, in relevant part,
that:
20. [Kervin’s] argument that counsel failed to raise the defense that he was in the Sun Villa Apartments, while dealing, for only a brief period, is inapt. (Also, it is not necessary that the charging information contain the exact times the transaction began and ended).
21. The evidence showed that [Kervin] and [the] detective went to Sun Villa Apartments at [Kervin’s] direction. Therefore he cannot now be allowed to argue that he should not be penalized because he conducts his narcotics transactions speedily.
*****
30. Here the Court does not find that [trial] counsel was ineffective. In fact counsel for [Kervin] was conscientious, diligent and zealous in his representation, and in fact addressed at the time of trial the issues [Kervin] raises here for the Court. Counsel did not conduct errors, and therefore [Kervin] is unable to show that the outcome of the proceeding would have reasonably been different.
(App. 197). Because trial counsel’s decision not to argue these factors was a
strategic decision, Kervin cannot show that his counsel’s performance was
deficient. See McCary, 761 N.E.2d at 392 (explaining that tactical or strategic
decisions will not support a claim of ineffective assistance of counsel).
Accordingly, we affirm the post-conviction court’s denial of post-conviction
relief on this ineffective assistance of counsel claim. See French, 778 N.E.2d at Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016 Page 16 of 19 824 (holding that a petitioner’s failure to satisfy either of the two prongs of an
ineffective assistance of counsel will cause the claim to fail).
B. Appellate Counsel
[30] Lastly, Kervin contends that the post-conviction court erred by denying him
post-conviction relief on his ineffective assistance of appellate counsel claim.
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)). Kervin argues that
his appellate counsel rendered ineffective assistance because he failed to raise a
challenge to his entrapment defense on appeal. Thus, his ineffective assistance
of appellate counsel claim is based upon category (2).
[31] “Because the decision regarding what issues to raise and what arguments to
make is ‘one of the most important strategic decisions to be made by appellate
counsel,’ ineffectiveness is very rarely found.” Conner v. State, 711 N.E.2d 1238,
1252 (Ind. 1999), (quoting Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1997),
reh’g denied, cert. denied), reh’g denied, cert. denied. “‘Accordingly, when assessing
these types of ineffectiveness claims, reviewing courts should be particularly
deferential to counsel’s strategic decision to exclude certain issues in favor of
others, unless such a decision was unquestionably unreasonable.’” Id. (quoting
Bieghler, 690 N.E.2d at 194).
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016 Page 17 of 19 [32] We, however, need not review Kervin’s argument that his appellate counsel
rendered ineffective assistance by failing to raise an entrapment issue on appeal
because Kervin did not present this claim in his initial or amended post-
conviction petitions. “Issues not raised in the petition for post-conviction relief
may not be raised for the first time on post-conviction appeal.” Allen v. State,
749 N.E.2d 1158, 1171 (Ind. 2001) (citing Ind. Post–Conviction Rule 1(8) (“All
grounds for relief available to a petitioner under this rule must be raised in his
original petition.”), reh’g denied, cert. denied. In his amended post-conviction
petition, Kervin alleged that he had received ineffective assistance of appellate
counsel because counsel had “failed to argue Brady material and exculpatory
evidence.” (App. 405). Because Kervin did not raise this ineffective assistance
of appellate counsel claim (failure to raise an entrapment issue on direct appeal)
in his post-conviction petition that he now attempts to raise on appeal, he has
waived any such argument. See, e.g., Koons v. State, 771 N.E.2d 685, 691 (Ind.
Ct. App. 2002) (holding that issues not raised in the petition for post-conviction
relief may not be raised for the first time on the post-conviction appeal; the
failure to raise an argument in the petition waives the right to raise the
argument on appeal), trans. denied.10
10 Moreover, waiver notwithstanding, Kervin’s claim is without merit because he has failed to show that if counsel had pursued the issue on direct appeal, then our Court would have reversed his convictions and remanded the cause for a new trial. Garrett, 992 N.E.2d at 724 (explaining that the prejudice prong for the waiver of issues category of an ineffective assistance of appellate counsel claim requires an examination of whether the issues that appellate counsel failed to raise would have been clearly more likely to result in reversal or an order for a new trial).
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016 Page 18 of 19 [33] Affirmed.
Kirsch, J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-766 | September 30, 2016 Page 19 of 19