Petition for Writ of Certiorari — Elmer Dean Baker, Petitioner v. Indiana

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IN THE

COURT OF APPEALS OF INDIANA

Elmer D. Baker,

Petitioner,

Court of Appeals Cause No.

23A-SP-2792

v.

FILED

State of Indiana,

Respondent.

Feb 07 2024,1:48 pm

CLERK

Indiana Supreme Court

k Court of Appeals >

and Tax Court ^

Order

[1]

On January 5, 2024, the Court declined to authorize the filing of Petitioner's

Successive Petition for Post-Conviction Relief. Petitioner has now filed a

Petition for Rehearing.

[2]

Having reviewed the matter, the Court finds and orders as follows:

[3]

Petitioner's Petition for Rehearing is denied.

Ordered: 2/7/2024

Bailey, Brown, JJ., Najam, Sr.J., concur.

For the Court,

Acting Chief Judge

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IN THE

COURT OF APPEALS OF INDIANA

Elmer D. Baker,

Petitioner,

Court of Appeals Cause No.

23A-SP-2792

v.

i

State of Indiana,

Respondent.

FILED

Jan 05 2024,11:19 am

CLERK

Indiana Supreme Court

Court of Appeals .

W and Tax Court J

l

Order

[i]

Petitioner has filed a Successive Petition for Post-Conviction Relief.

[2]

Having reviewed the matter, the Court finds and orders as follows:

1. The Petitioner has failed to establish a reasonable possibility that

Petitioner is entitled to post-conviction relief, and accordingly, the Court

declines to authorize the filing of the petition.

2. The Clerk of this Court is directed to send this order to the Petitioner and

the DeKalb Circuit and Superior Courts Clerk.

3. The DeKalb Circuit and Superior Courts Clerk is directed to file this

order under Cause Number 17D01-0607-FA-7, and, pursuant to Indiana

Trial Rule 77(D), the Clerk shall place the contents of this order in the

Record of Judgments and Orders.

Ordered: 1/5/2024

Bailey, Brown, JJ., Najam, Sr.J., concur.

For the Court,

<1

Chief Judge

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"uSDC IN/ND case 3:19-cv-00423-RLM-MGG document 13-20 filed 10/07/19 page 1 of 18

MEMORANDUM DECISION

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.

FILED

Dec 12 2018,10:48 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

APPELLANT PRO SE

Attorneys for Appellee

Elmer Dean Baker

Michigan City, Indiana

Curtis T. Hill, Jr.

Attorney General of Indiana

Angela N. Sanchez

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Elmer Dean Baker,

December 12, 2018

Appellant-Petitioner,

Court of Appeals Case No.

18A-PC-354

v.

State of Indiana,

Appellee-Respondent.

Appeal from the DeKalb Superior

Court

The Honorable J. Scott

VanDerbeck, Special Judge

Trial Court Cause No.

17DQ1-1604-PC-3

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-354 | December 12, 2018

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Case Summary

[i]

In August of 2008, Elmer Dean Baker was convicted of two counts of Class A

felony child molestation and Class C felony child molestation and found to be a

habitual offender, for which he was sentenced to 106 years of incarceration. We

affirmed Baker’s convictions on direct appeal, as did the Indiana Supreme

Court on transfer.

[2]

In 2016, Baker filed his amended petition for post-conviction relief (“PCR”),

contending, inter alia, that he was entitled to relief because he received

ineffective assistance of appellate counsel (“IAAC”). The post-conviction court

denied his petition in full. Baker contends that the post-conviction court erred

by denying him PCR. Because we conclude that Baker has failed to establish

that he received IAAC, we affirm.

Facts and Procedural History

[3]

The underlying facts leading to Baker’s appeal of the denial of his PCR petition

are as follows:

On July 3, 2006 the State charged then fifty-nine-year-old Elmer

Dean Baker with two counts of child molesting as Class A

felonies. The victims of the alleged offenses were two of Baker’s

grandchildren, C.B. and J.A. And the offenses were alleged to

have occurred in “June and July of 2003.” After a jury trial in

June of 2007 the trial court declared a mistrial when the jury

could not reach a verdict. Thereafter the State sought leave to

amend the charging information to reflect the time period “from

October 2000 through August 2003.” An additional count of

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child molesting as a Class C felony was also added. The alleged

victim was A.H., a cousin of C.B. who is unrelated to Baker.

This offense was alleged to have occurred “in or about 2002.”

Baker was also alleged to be a habitual offender.

Over Baker’s objection the trial court permitted the amendments.

And a retrial began on August 13, 2008. Evidence presented by

the State is summarized in part as follows: C.B., who was

eighteen years of age at the time of trial, testified that she was

bom in September 1990, her cousin J.A. was bom in December

1990, and that during the period between 2000 and 2003 she,

J.A., and A.H. were close friends. C.B. also testified that during

that period of time her family lived at various locations in

DeKalb County including houses and apartments in Spencerville,

Auburn, and Garrett, Indiana. According to C.B., Baker first

began touching her inappropriately when she was about nine or

ten years old. Specifically C.B. recounted an incident in which

she and J.A. spent the night at Baker’s apartment in Auburn

which was next door to her own home where she lived with her

parents. J.A. and C.B. were first sleeping in the living room but

became frightened for some reason and went into Baker’s room

to lie down on his bed. C.B. testified that at that point “he started

to touch us and he pulled me on top of him.... He [ ] pretended

like he was having sex with me but we had, like I had my

underwear on.... He like touched our vaginas.” She went on to

say, “He like placed my hand on his penis and made like the

motion of masturbating.”

When C.B. was ten or eleven years old Baker, who was a long

distance truck driver, often took C.B. with him on overnight

truck trips several weekends during the summer months of 2001

and 2002. According to C.B. most of the “sexual stuff’ happened

“in the semi” and it happened “a lot.” When asked by the

prosecutor “what kind of stuff happened in the semi truck?” C.B.

responded “my grandpa had sex, my grandpa had sex with me.”

When asked “[wjhat other sex acts took place in the semi truck?”

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C.B. recounted an incident in which she and J.A. were together

on one of the truck trips and both of them fellated Baker; on

another occasion Baker digitally penetrated her and touched her

breast.

By the summer of 2003 Baker owned a small house on Story

Lake in DeKalb County. At that point C.B. was twelve years of

age. On July 3rd of that year C.B. and J.A. were present for a

family gathering and spent the night at Baker’s house. At some

time during the course of the night C.B. and J.A. went into

Baker’s room and according to C.B. “[u]m, he had sex with

me.... Um, he inserted his penis into my vagina.” C.B. further

testified, “he like touched us and had us touch him ... on the

private parts.” The “us” referred to J.A. C.B. also testified that

both she and J.A. “would take turns” fellating Baker.

C.B. recounted another incident occurring at a trailer that Baker

owned at the North Pointe Crossing Mobile Home park just

north of where she lived in Garrett. The precise date is unclear

but the record suggests sometime between 2001 and 2003. C.B.,

J.A., and A.H. were present at Baker’s trailer. The three girls

went into Baker’s bedroom where he pretended to be asleep.

According to C.B. she and J.A. “took turns” fellating Baker, and

all three of the girls “touch[ed] his penis.”

J.A., who was seventeen years of age at the time of trial, testified

that C.B. is her step first cousin and that she refers to Baker as

“Grandpa Dean.” She also testified that during 2000 to 2003 she,

C.B., and A.H. were good friends. She offered testimony that

tended to corroborate that of C.B. including an incident

involving A.H. According to J.A. the three girls were present at

Baker’s house. Baker was present and pretending to be asleep.

The three girls went into his bedroom where A.H. fellated Baker

and J.A. played with his scrotum. “And then me and [A.H.]

switched.” She further recalled that C.B. was on top of Baker and

he was “sucking on her [breast].”

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A.H., who was also seventeen at the time of trial, was the third of

the alleged victims to testify. Although no specific dates were

given, A.H. largely corroborated the testimony of C.B. and J.A.

concerning the alleged incident occurring at Baker’s house at the

mobile home park. Among other things she confirmed that C.B.

fellated Baker, and “then [J.A.] did it and then after that I tried

it.” A.H. also recounted an occasion when she and J.A. were

together on a trucking trip with Baker in his semi. The truck was

equipped with a bed. While J.A. was in the passenger seat, A.H.

went to sleep in the bed. A.H. testified that when she awoke

Baker was lying next to her, and her clothing had been removed.

Baker rubbed his fingers over her “private area,” got on top of

her, and “humped [her] stomach until he ejaculated.”

Baker testified on his own behalf. He acknowledged occasionally

taking all of his grandchildren on semi trucking trips at one time

or another and acknowledged owning a house on Story

Lake. However, Baker denied engaging in any sexual activity

with C.B., J.A., or A.H. In response to his attorney’s question

“[a]nd you’re saying to me that they are lying,” Baker responded,

“[t]hey absolutely are.” Essentially he testified that he believed

C.B. had organized the girls to offer false testimony as part of a

conspiracy to get even with him after he caught C.B. in a car with

a boy at three in the morning as a result of which “she got

grounded.” According to Baker, about two weeks later C.B.

started a “rumor” about him engaging in inappropriate sexual

activity.

Following a five-day jury trial Baker was convicted as charged,

and he pleaded guilty to the habitual offender allegation. The

trial court sentenced him to a consecutive term of imprisonment

on each of the three child molest counts for a total of seventy-six

years. One of the counts was enhanced by thirty years for the

habitual offender adjudication. The total executed term was 106

years.

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Baker appealed framing his contentions as follows: (1) the

convictions are not sustained by evidence of jury unanimity, (2)

the trial court’s ruling allowing amendment of the information

was in violation of proscriptions under the state and federal

constitutions against ex post facto laws; if the amendment can be

lawfully applied in this case, it was not applied properly, (3) the

trial court committed fundamental error in giving its preliminary

instruction 6 and final instruction 5, and (4) defendant’s

convictions should be set aside due to ineffective assistance of

counsel. The Court of Appeals rejected Baker’s arguments and

affirmed the judgment of the trial court.

Baker v. State, 948 N.E.2d 1169, 1171-73 (Ind. 2011) (internal citations

omitted).

[4]

The Indiana Supreme Court granted transfer to explore Baker’s jury unanimity

claim, ultimately holding that any instructional error regarding jury unanimity

was not fundamental and summarily affirming the balance of the decision by

the Court of Appeals. Id. at 1173. On April 19, 2016, Baker filed an amended

PCR petition, alleging that he received IAAC. On December 12, 2017, the post­

conviction court held a hearing on Baker’s PCR petition, at which Baker’s

appellate counsel Latrielle Wheat testified, and it was ultimately denied on

January 16, 2018.

Discussion and Decision

[5]

The standard of review for appeals from the denial of PCR is well-settled.

Petitioners who have exhausted the direct-appeal process may challenge the

correctness of their convictions and sentences by filing a post-conviction

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petition. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Petitioner bears the

burden of establishing grounds for PCR by a preponderance of the evidence. Id.

By appealing from a negative judgment, Petitioner faces a rigorous standard of

review. Wesley v. State, 788N.E.2d 1247, 1250 (Ind. 2003). Denial of PCR will

be affirmed unless, “the evidence as a whole leads unerringly and unmistakably

to a decision opposite that reached by the post-conviction court.” Id. We do not

defer to the post-conviction court’s legal conclusion but do accept its factual

findings unless they are clearly erroneous. Stevens, 770 N.E.2d at 746. The post­

conviction process does not provide petitioner with a “super-appeal” but,

rather, a “narrow remedy for subsequent collateral challenges to convictions,

challenges which must be based on grounds enumerated in the post-conviction

rules.” Rousterv. State, 705 N.E.2d 999, 1003 (Ind. 1999). Issues that were

known and available but not raised on direct appeal are waived, and issues

raised but decided adversely are res judicata. Id.

I. Sufficiency of Evidence

[6]

Baker contends that there was insufficient evidence to convict him of the two

counts of Class A felony child molestation because there was no evidence of

penetration. Although Baker has tried to frame this as a new issue, it is nothing

more than a freestanding claim that is waived. SeeRouster, 705 N.E.2d at 1003

(noting that an issue known and available but not raised on direct appeal is

waived by petitioner).

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II. IAAC

[7]

Baker contends that he received ineffective assistance from Wheat when she

represented him on direct appeal. The standard for determining whether

appellate counsel’s performance was ineffective is the same as that for trial

counsel. McKnightv. State, 1 N.E.3d 193, 204 (Ind. Ct. App. 2013). We review a

claim for IAAC based on the standard articulated in Strickland v. Washington,

466 U.S. 668 (1984):

Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984), 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 so much that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different” Id. at 687, 694, 104

S.Ct. 2052; Lowery v. State, 640N.E.2d 1031, 1041 (Ind. 1994).

[...] Failure to satisfy either prong will cause the claim to fail.

Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999).

French v. State, 778 N.E.2d 816, 824 (Ind. 2002). Counsel’s performance is

presumed effective, and instances of isolated poor strategy, inexperience, or bad

tactics are not necessarily ineffective assistance; thus a defendant must offer

strong and convincing evidence to overcome the presumption of effective

assistance. McKnight, 1 N.E.3d at 200.

[8]

“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

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to present issues well.” Reed v. State, 856 N.B.2d 1189, 1195 (Ind. 2006).

“Judicial scrutiny is highly deferential regarding a claim that counsel was

ineffective in failing to raise an issue on appeal thus resulting in waiver for

collateral review, and the [petitioner] must overcome the strongest presumption

of adequate assistance.” MeKnight, 1 N.E.3d at 204. Rarely is ineffective

assistance found where petitioner contends that appellate counsel failed to raise

an issue on direct appeal, because the decision of which issue to raise is one of

the most important strategic decisions made by appellate counsel. Id.

A, XAC Claim Brought on Direct Appeal

[9]

Baker contends that Wheat was ineffective for bringing an IAC claim on direct

appeal rather than leaving the claim for a post-conviction proceeding. Baker

contends that Wheat raised the claim ineffectively by failing to obtain testimony

from Baker’s trial counsel regarding trial counsel’s decision not to obtain a

medical expert to refute the State’s medical expert’s testimony at trial. Although .

post-conviction proceedings are usually the preferred avenue for bringing IAC

claims, they are not prohibited from being brought on direct appeal. Rogers v.

State, 897 N.E.2d 955, 965 (Ind. Ct. App. 2008), trans. denied. Post-conviction

proceedings are preferred because presenting such a claim can require

developing new facts that are not present in the trial record. Id.

[10]

Baker has offered no proof of the testimony that needed to be elicited from his

trial counsel to develop facts that were not already in the trial record. Arguing

that his appellate counsel was ineffective by not eliciting testimony from trial

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counsel, without more, is merely speculation. Fiirther, it is Baker’s burden to

make a record, and because his trial counsel was never called to testify during

his PCR hearing, the post-conviction court was not required to believe that trial

counsel would have corroborated Baker’s allegation. See Culvahouse v. State, 819

N.E.2d 857, 863 (Ind. Ct. App. 2004), trans. denied (finding that “[w]hen

counsel is not called as a witness to testify in support of a petitioner’s

arguments, the post-conviction court may infer that counsel would not have

corroborated the petitioner’s allegations.”). We cannot conclude that Wheat

was ineffective by bringing an IAC claim on direct appeal.

B. Alleged Juror Prejudice

[li]

Baker contends that Wheat provided ineffective assistance by failing to claim

that trial counsel was ineffective for not moving for a mistrial based on juror

exposure to prejudicial newspaper articles. Baker relies on two newspaper

articles which discuss his initial arrest and his first trial that resulted in a

mistrial. Because at his PCR hearing Baker never admitted these newspaper

articles nor any evidence that jurors were exposed to these articles, there was

never any evidence of juror prejudice properly before the post-conviction court.

Therefore, his claim is unsupported by evidence and therefore groundless.

C. Alleged Juror Taint

[12]

Baker also contends that Wheat provided ineffective assistance by failing to

claim that trial counsel was ineffective for not moving for a mistrial based on a

juror’s conversation with the prosecutor’s husband. “Defendants seeking

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mistrial for suspected jury taint are entitled to the presumption of prejudice only

after making two showings, by a preponderance of the evidence: (1) extra­

judicial contact or communications between jurors and unauthorized persons

occurred, and (2) the contact or communications pertained to the matter before

the jury.” Ramirez v. State, 7 N.E.3d 933, 939 (Ind. 2014). Even assuming that

the prosecutor’s husband was an unauthorized person, the communication was

not related to Baker’s case. The conversation solely consisted of whether the

prosecutor’s husband was going to play on the same soccer team as the juror

that year. (Appellant’s App. Vol. VI p. 14). Baker failed to establish that

Wheat’s performance was ineffective in this regard.

D. Statute of Limitations

[13]

Baker contends that Wheat was ineffective on direct appeal for failing to raise

that the State’s amended charge of Count III, Class C felony child molestation,

violated the applicable statute of limitations. Disregarding trial counsel’s failure

to object, Baker’s claim has no merit. “A charging information must only state

the date of the offense with sufficient particularity to show that the offense was

committed within the period of limitations applicable to that offense.” Blount v.

State, 22 N.E.3d 559, 569 (Ind. 2014) (internal citations admitted). We have

noted that when it comes to child molesting cases, time is not of the essence

because it is difficult for children to remember specific dates, especially when

these incidents of molestation are not immediately reported. Baber v. State, 870

N.E.2d 486, 492 (Ind. Ct. App. 2007), trans. denied. The statute of limitations

for amended Count III in this case was five years. See Ind. Code § 35-41-4-2(b)

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(2002). On June 18, 2007, the State filed amended Count III, Class C felony

child molestation, alleging that the molestation occurred “in or about 2002[.]”

The State argues, and Baker does not contest, that trial testimony established

that at least one instance of molestation involving all three victims occurred

after the conclusion of one Buzz Wilkens’s trial, which concluded on October

30, 2002. Thus, that instance involving all three girls occurred after June 18,

2002, which is within the five-year statute of limitations. Baker has failed to

establish that Wheat provided IAAC in this regard.

E, Waiver of Jury

[14]

Baker contends that Wheat was ineffective for failing to claim that Baker did

not knowingly, voluntarily, and intelligently waive his right to a jury trial. The

waiver Baker is referring to occurred, through trial counsel, during the

determination of his habitual offender status, at which the State presented

evidence of his previous convictions and after which the trial court determined

Baker to be a habitual offender. In support of his contention, Baker cites Horton

v. State, 51 N.E.3d 1154, 1160 (Ind. 2016), in which the Indiana Supreme Court

held that a defendant’s right to a jury trial in a felony prosecution may only be

waived by the defendant personally. Assuming, arguendo, that the holding in

Horton extends to the determination of habitual offender status, said precedent

did not exist when Baker’s direct appeal was filed in 2009. When choosing the

issues to raise on Baker’s direct appeal, Wheat could not have been ineffective

for failing to foresee legal developments seven years down the road.

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F. Sentencing

[15]

Baker contends that Wheat was ineffective for failing to make the following

sentencing challenges on direct appeal: (1) his sentence violated the United

States Supreme Court’s holdings in Blakely1 and Apprendi,2 (2) the trial court

abused its discretion by failing to explain why it imposed consecutive sentences,

and (3) his sentence was manifestly unreasonable in light of the nature of his

offense and his character.

[16]

Although Baker contends that his sentence violated the United States Supreme

Court’s precedent in Blakely and Apprendi because the trial court considered

aggravating circumstances not found by the jury, he fails to recognize that by

the time he was sentenced, steps had been taken to conform Indiana’s

sentencing statutes with said precedent. In 2005, the Indiana General Assembly

enacted new sentencing statutes to resolve the Sixth Amendment issues

presented by Blakely. Anglemyer v. State, 868 N.E.2d 482, 489 (Ind. Ct. App.

2007), clarified on reh’g 875 N.E.2d 218. In doing so, the General Assembly

eliminated fixed terms and enacted sentencing statutes that did not contain a

maximum sentence a judge may impose without any additional findings. Id.

(internal quotations admitted). “As a result, even with judicial findings of

aggravating circumstances, it is now impossible to increase the penalty for a

1 Blakely v. Washington, 542 U.S. 296 (2004).

2 Apprendi v. New Jersey, 530 U.S. 466 (2000).

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crime beyond the prescribed statutory maximum.” Id. (internal quotations

admitted). Therefore, even though the trial court found aggravating

circumstances in Baker’s case, it did not impose—nor could it have imposed—a

sentence that was beyond the prescribed statutory maximum in violation of

Blakely and Apprendi.

[17]

Baker also contends that Wheat was ineffective for failing to claim that the trial

court abused its discretion by failing to explain why it was imposing

consecutive sentences. However, the trial court found Baker to have been

convicted of multiple offenses against multiple victims, which is sufficient

reasoning for ordering consecutive sentences. See O’Connell v. State, 742 N.E.2d

943, 952 (Ind. 2001) (emphasizing that multiple crimes or victims constitute a

valid aggravating circumstance for imposing consecutive sentences).

[18]

Finally, Baker contends that Wheat was ineffective for failing to argue that his

sentence was manifestly unreasonable in light of the nature of his offenses and

his character. We note that at the time of Baker’s sentencing, the current

Indiana Appellate Rule 7(B) was effective, which uses “inappropriate” as the

standard rather than “manifestly unreasonable.” We may revise a sentence if,

“after due consideration of the trial court’s decision, the Court finds that the

sentence is inappropriate in light of the nature of the offense and the character

of the offender.” Ind. Appellate Rule 7(B). “Sentencing is principally a

discretionary function in which the trial court’s judgment should receive

considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008)

(internal citations omitted). The defendant bears the burden of proving that his

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sentence is inappropriate in the light of both the nature of his offense and his

character. Gil v. State, 988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013).

[19]

The nature of Baker’s offenses does not support a reduction in his sentence.

Baker was convicted of two counts of Class A felony child molestation and one

count of Class C felony child molestation. Baker committed these offenses

against two of his granddaughters and C.B.’s step-cousin, requiring them to

have intercourse with and fellate him while in his tractor trailer and home.

[20]

Baker’s character also does not support a reduction in his sentence. Baker has

been convicted of Class B felony criminal confinement, Class D felony theft,

Class A misdemeanor resisting law enforcement, Class A misdemeanor battery,

Class B misdemeanor disorderly conduct, and two counts of Class A

misdemeanor criminal confinement. Despite Baker’s many contacts with the

criminal justice system, starting in 1969, he has been unwilling to conform his

behavior to societal norms. Baker’s sentence was not inappropriate, therefore he

was not prejudiced by Wheat’s failure to raise a 7(B) challenge on direct appeal.

Baker has failed to establish that Wheat provided ineffective assistance in this

regard.

G. Prosecutorial Misconduct

[21]

Baker contends that Wheat provided ineffective assistance by failing to raise a

claim of prosecutorial misconduct. Baker specifically contends that the

prosecutor committed improper vouching and elicited sympathy for the State’s

witnesses. Of the prosecutor’s numerous statements which Baker alleges as

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misconduct, the one alleged as the most blatant example was in the State’s

closing argument when the prosecutor, regarding the three victims’ testimony,

stated “All three (3) of them agreed before you, when they were under oath to

tell the truth as they remember it today.” Appellant’s App. Vol. VI p. 95. We

have reviewed this statement and the others Baker has provided and find none

of them to be improper vouching or elicitation of sympathy for victims but,

rather, fair commenting on the evidence presented at trial. See Thomas v. State,

965 N.E.2d 70, 77 (Ind. Ct. App. 2012), trans. denied (noting that while a

prosecutor may not state his or her personal opinion regarding a witness’s

credibility at trial, he or she may comment as to witness credibility if the

assertions are based on reasons arising from the evidence presented at trial).

Baker has failed to establish that Wheat provided IAAC in this regard.

H. Stipulation of Evidence

[22]

Baker contends that Wheat was ineffective by failing to claim that the trial court

abused its discretion by allowing the evidentiary stipulation between Baker and

the State, which involved testimony that would have allegedly otherwise been

inadmissible. “An abuse of discretion occurs when the trial court’s decision is

clearly against the logic and effect of the facts and circumstances before the

court or when the court misinterprets the law.” Johnson v. State, 36 N.E.3d 1130,

1133 (Ind. Ct. App. 2015), trans. denied. We cannot conclude that the trial court

abused its discretion by allowing an evidentiary stipulation that was a clear

agreement by both parties.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-354 | December 12, 2018

Page 16 of 18

USDC IN/ND case 3:19-cv-00423-RLM-MGG document 13-20 filed 10/07/19 page 17 of 18

I. Plea Offer

[23]

Baker contends that Wheat was ineffective for failing to claim that Baker’s trial

counsel provided ineffective assistance by not communicating to him alleged

plea offers from the State. Baker specifically contends that he declined a plea

offer during trial because he was inadequately informed by counsel and that

counsel never disclosed another plea offer. At Baker’s PCR hearing, the post­

conviction court asked Baker if he accepted the plea that was offered during

trial, to which Baker responded, “On advice of my counsel I didn’t, no.”

Appellant’s App. Vol. Up. 191. Moreover, Baker presented another plea offer

he alleged to have discovered in his file sent by the public defender’s office,

claiming it was never disclosed to him by trial counsel. However, the plea

agreement was neither signed nor dated by the prosecuting attorney, and Baker

presented no testimony from his trial counsel on the matter. “When counsel is

not called as a witness to testify in support of a petitioner’s arguments, the post­

conviction court may infer that counsel would not have corroborated the

petitioner’s allegations.” Culvahouse, 819 N.E.2d at 863. The post-conviction

court denied Baker relief on these claims, and Baker’s arguments on appeal are

merely an invitation for us to reweigh the evidence, which we will not do.

Mahone v. State, 742 N.E.2d 982, 984 (Ind. Ct. App. 2001), trans. denied. Baker

has failed to establish that Wheat was ineffective in this regard.

J. Rehearing or Writ of Certiorari

[24]

Baker contends that Wheat was ineffective for failing to seek a rehearing from

the Indiana Supreme Court or a writ of certiorari from the United States

Court of Appeals of Indiana | Memorandum Decision 18A-PC-354 | December 12, 2018

Page 17 of 18

t 4

USDC IN/ND case 3:19-cv-00423-RLM-MGG document 13-20 filed 10/07/19 page 18 of 18

Supreme Court on the Indiana Supreme Court’s ruling on his jury unanimity

claim. Baker does not explain why a request for rehearing or certiorari would

have been granted, let alone establish that he would have achieved a ruling any

more favorable than that handed down by the Indiana Supreme Court on

transfer. Moreover, Baker has not established that failing to seek rehearing or

certiorari falls below the objective standard of reasonableness based on

prevailing professional norms, given that a majority of lawyers never even seek

transfer. See Yerden v. State, 682 N.E.2d 1283, 1286 (Ind. Ct. App. 1997) (noting

that “[a] healthy majority of lawyers who lose before the Indiana Court of

Appeals, for example, elect not to seek transfer. On the face of it, without any

explanation, a lawyer who does not petition for transfer has simply performed

according to the statistical norm.”). Baker has failed to establish that Wheat’s

representation constituted IAAC.

Conclusion

[25]

We conclude that Baker’s sufficiency of the evidence claim is barred by waiver.

We also find no merit in Baker’s various IAAC claims. Baker has failed to

establish that the post-conviction court erred by denying him PCR.

[26]

The judgment of the post-conviction court is affirmed.

Bailey, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-354 | December 12, 2018

Page 18 of 18

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Elmer D. Baker v. State of Indiana

SUPREME COURT OF INDIANA

127 N.E.3d 224; 2019 Ind, LEXIS 314

[NO NUMBER IN ORIGINAL]

May 9, 2019, Decided

Notice:

DECISION WITHOUT PUBLISHED OPINION

Editorial Information: Prior History

18A-PC-354.Baker v. State, 119 N.E.3d 230, 2018 Ind. App. Unpub. LEXIS 1480

(Ind. Ct. App., Dec. 12, 2018)

Opinion

Transfer Denied.

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USDC IN/ND case 3:19-cv-00423-RLM-MGG document 13-17 filed 10/07/19 page 75 of 82

7.

The Petirioner appealed his conviction to the Indiana Court of Appeals which affirmed the Trial

Court in Baker y, State. 922 N.E.2d 723 (Ind. App. 2010). The Indiana Court of Appeals, on

rehearing, affirmed the decision in Baker v. State. 928 N.E.2d 890 (Ind. App. 2010).

8.

The Indiana Supreme Court affirmed the judgment of the trial court in Baker v. State. 948 N.E.2d

1169 (Ind. 2011).

9.

The facts.and procedural history used in the appellate cases are found at:

1. Baker v. State, 922 N.£.2d 723 (Ind. App. 2010) at 726-727

2. Baker v. State, 928 N.E.2d 890 (Ind. App. 2010) at 891.

10.

The facts supporting Elmer Dean Baker’s conviction as found by the Indiana Supreme Court are

found at:

I. Baker v. Slate, 948 N.E.2d 1169 (Ind. 2011) at 1171-1173.

II.

On December 12, 2017 the Court held an evidentiary hearing on the Petitioner’s Amended Petition

for Post-Conviction Relief. Elmer D. Baker elected to represent himself pro se. Petitioner’s

appellate trial counsel, Latrielle Wheat, testified. The Court has ordered a transcript of her

testimony which has become part of the record.

• ---

12.

The record for this case consists of: the transcript together with exhibits and arguments for the jury

trial. The Court granted, the State's request to take judicial notice of its file in case 17D0I-0607FA-00007. This trial judge does not have a copy of the trial transcript and will refer to the record

found on a DVD sent with the transcript. All reference to location oftestimony will be in the form

of DVD 2008-filename-#.

13.

This Court now finds Latrielle Wheat to be an expert in appellate law. She has worked 3 years in

the Indiana Attorney General’s Office in the appellate division. She has filed 30-40 appellate

briefs. Her appellate training resulted in a strategy to present during direct appeal to the Court of

Appeals, only the strongest issues.

14.

Appellate Counsel, Latrielle Wheat, presented in direct appeal the following clai ms:

a. Trial Court Counsel was ineffective by entering into a stipulation.

b. Trial Court Counsel was ineffective by failing to hire an expert witness.

c. Trial Court Counsel was ineffective by not objecting to jury instructions at the time

they were given.

d. Trial Court Counsel was ineffective by not objecting to jury instructions, verdict form

or the verdicts.

15.

This Court finds that trial counsel, David G. Pappas provided competent and effective

representation. This is based on:

The extensive pre-trial arguments are located at DVD 2008 -Baker Pre-Trial 1-58. Trial Counsel

presented a series of detailed motions, including: a Motion for Additional Security, Motion for

Presentation of Exhibits used in the first Baker Trial, arguments to consider allowing a Deposition of

State medical expert versus live testimony. Also discussed was the rights of the informant of the alleged

molest to the Indiana Department of Child Services, contents of the State’s six supplemental discovery

2

USDC IN/ND case 3:19-cv-00423-RLM-MGG document 13-17 filed 10/07/19 page 76 of 82

responses. Also was. defense motions for a Test Jury to determine prejudice from pre-trial publicity,

Motion for Separation of Witnesses who were adults and parents of die minor child victims and the need

to sequester a jury' in a child molesting case with multiple victims. Also raised was a Motion for

severance of counts. Defense Motion to utilize TR412 evidence. Defense Notice of Intent to Use other

Bad Acts of Evidence, State's Motion to Use Other Bad Acts, Defendant’s Motion to Introduce RapeShield Evidence, State’s Motion in Limine, and a Stipulation regarding the admissibility of evidence.

These discussions show defense counsel was competent and prepared for trial.

The Trial Judge Kirk Carpenter found that Mr.- Pappas “was a competent defense counsel and be

has a business practice and is a popular attorney”. DVD 2008 Baker Pre-Trial 54.

This Court also finds Defense Counsel had adequate time to prepare for trial, develop a thorough

trial strategy and was an effective avdovate.

CONCLUSIONS OF LAW

16.

The Petitioner raised eight (8) issues in his Amended Petition for Post Conviction Relief.

Petitioner’s Verified Memorandum of Law presents his claimed error in 18 arguments. This Court

will address his issues as they are developed in the Memorandum of Law.

1. Standard Of Review.

Post-Conviction relief is a collateral attack on the validity of a criminal conviction, and the

petitioner carries the burden of proof. It has long been the rule that the post-conviction procedure is not a

“super-appeal,” and not all issues are available. Timberlake, supra. “If an issue was known and available,

but not raised oh direct appeal, it is waived. It is also black letter law that, “A petitioner for post­

conviction relief cannot escape the effect of claim preclusion merely by using different language to phrase

an issue and define an alleged error.” Ben-Y israyl v. Stale, 738 N.E.2d 253, 258 (Ind. 2000). Also see e.g.

Morris v. Slate, 466 N.E.2d 13 (lnd., 1984). Moreover, courts cannot address an issue where it is merely

raised as a convenient vehicle to present arguments that have been waived. See Holt v. State, 656 N.E.2d

495, 497 (Ind. Ct. App. 1995), trans. denied.

2. Ineffective Assistance ofAppellate Counsel

Petitioner’s Argument I

Claim: Appellate Counsel was ineffective by raising ineffective assistance of Trial Counsel on

direct Appeal.

The Appellate Court resolved the issue of presenting alleged Trial Court Counsel error in Baker v.

Slate, 922 N.E.2d 723 (lnd. App. 2010), at 729-732.

Considering the additional testimony and affidavits presented by Baker at the Post Conviction

hearing, this Court finds no error. If an issue of attorney incompetency was raised on appeal, and

decided adversely, it is res judicata to consider the issue again. If an issue is known and available,

but not raised on direct appeal, it is waived. Timberlake v. State, 753 N.E.2d 591 (lnd. 2001).

An experienced appellate counsel was obtained by Petitioner after she was employed for three

years in the Appellate division of the Indiana Attorney General’s Office. After a complete review

3

USDC IN/ND case 3:19-cv-00423-RLM-MGG document 13-17 filed 10/07/19 page 77 of 82

of the issues and facts she chose to present to the Court of Appeals, this Court finds no error.

Appellate Counsel was not ineffective. Ganett v. Slate, 922 N.E.2 710 find. 2013).

Argument II

Claim: Appellate Counsel Error regarding the issue of improper juror voir dire.

Petitioner, claims that his appellate counsel was ineffective by not raising this issue, to his

detriment.

The two prong standard for evaluating the effective assistance of Trial Counsel, was first

announced in Strickland v. Washington, 466 U.S. 668, 80 L.E Ed 2d 674, 104 S. Ct. 20 5 2 (1984).

This standard has been applied to claims of ineffective assistance of appellate counsel. Lowery v.

Stale, 640 N.E. 2d 1031, 1048 (lnd. 1994), Henley v. State, 881 N.E. 2d 639. There are three

categories of counsel ineffectiveness ofclaims. Lissa Griffin, The Right to Effective Assistance

Appellate Counsel, 97 W. Va. L. Rev. 1, 21-22 (1994). The first and the most serious type

category would be denying Defendant access to appeal entirely. The second category of ineffective

assistance of appellate claim, involves Appellate Counsel who did not raise issue which the

convict later argues should have been raised. “Ineffectiveness is very rarely found in these cases.”

Lissa Griffin, The Right to Effective Assistance Appellate Counsel, 97 W. Va. L. Rev. 1,21 -22

(1994) - this in essence involves a waiver of issues. Lissa Griffin, The Right to Effective

Assistance Appellate Counsel, 97 W. Va. L. Rev. I, 25 (1994). The third category of appellate

ineffectiveness claims allege that counsel’s presentation of particular issues were inadequately

presented in some way. Lissa Griffin, The Right to Effective Assistance Appellate Counsel, 97 W.

Va. L. Rev. 1, 23 (1994). Cited in Bigler v: State, 690 N.E. 2d 188, 1997 lnd. LEXIS 231 and

Henley v. State, 88 I N.E 2d 639, 2008 lnd. LEXIS 170.

Petitioner alleges the Trial Counsel errored during the jury trial held August 18-22, 2008. Before

trial one day, the DeKalb Prosecuting Attorney volunteered to the Trial Judge and opposing

Counsel that her husband inadvertently spoke to a juror after the previous day of trial. The Trial

Judge conducted a hearing on tine record.

Transcript 903-906, DVD 2008 Baker 2d 214-219

Present for tine hearing before the Judge Carpenter was Prosecutor Winebrenner, the Defendant

and Petitioner's Trial Counsel, Daniel G. Pappas (Pappas). Pappas is now Magistrate for Allen

County Superior Court. Pappas was familiar with the reputation of the Prosecuting Attorney and

family. Counsel made a trial strategy and waived the right to pursue an in camera interview with

the Juror.

Trial Counsel Pappas’ strategy ultimately lead to a conviction. This does not mean that he was

ineffective.

Trial Counsel was presenting the Petitioner in the best possible light when he waived the in camera

interview with the juror, and not make the timely objection. Thus be waived the objection. Trial

Counsel error is not ineffective. Lewis v. State, 511 N.E. 2 1054 (lnd, 1987). VcmMartin v. State,

535 N.E.2 493 (lnd. 1989).

In preparation for the post conviction hearing, Petitioner had requested to send interrogatories to

the juror in question. Petitioner requested that this juror be subpoenaed to testify at the Post

4

USDG tN/ND%ase 3:19-cv-00423-RLM-MGG document 13-17 filed 10/07/19 page 78 of 82

Conviction hearing. The PCR Judge denied both requests finding this issue was waived by trial

court counsel. Also, due to the long delays, laches has occurred.

This issue was not presented by Appellate Court Counsel for direct appeal. The issue was waived

by Appellate Court Counsel.

Petitioner claims incompetence even though he sites and briefs the point that appellate counsel

should select for argument the strongest issues, and omit the rest. Jones v. Barnes, 4-63 U.S. 745,

751-52 103 S.Ct. 3308, 77 L. Ed. 2d 987 (1983).

issue nr.

Claim: Petitioner maintains Appellate Counsel performed ineffective assistance, and the State

failed to prove that Count III, took place within the statute of limitation period.

Petitioner alleges ineffective counsel by Tracy Nelson, (appointed counsel from Indiana Public

Defender’s Office for the original PCR Petition), (page 33 of his Verified Memorandum of Law).

She declared in a letter this' issue had no merit. This issue was denied by the Indiana Court of

Appeals in Baker v. State, 922 N.E.2d 723 (Ind. App. 2010). Motion-denied.

Argument IV:

Claim: Petitioner claims that Appellate Counsel was ineffective for not presenting a possible

variance between the charging information and proof presented at trial.

Petitioner’s argument is discredited by the facts, procedural history, findings and logic found by

the Indiana Court of Appeals in Baker v. Slate, 922 N.E.2d 723 (Ind. App. 2010), pages 729-730.

Secondly, Petitioner alleges trial and appellate counsel provided ineffective assistance by failing to

argue the Court’s instructions were inadequate. A review of all of the jury instructions occurred in

Baker v. State, 922 N.£.2d 723 (Ind. App. 2010) at 729-730. Trial Counsel for the Petitioner did

not object to the jury instructions at the time they were given, the Court of Appeals found this

resulted in waiver of the issue. Baker v. State, 729 N.EJld 723 at 729-730, and Blancherd v. State,

802 N.E.2d 14, 32 (Ind. Ct. App. 2004).

Argument V:

Claim: Petitioner alleges Appellate Counsel was ineffective by not raising his “plea of guilty to

being a habitual offender” was not done in a knowing, informed, intelligent or voluntary manner.

The record of proceedings for the Habitual Offender charge begin on DVD 2008 Baker 2e 94-134.

Present was the Court, Mrs. Weinbrenner, Prosecuting Attorney, Defense Counsel, Mr. Pappas and

the Petitioner. The Jury had just pronounced the Defendant guilty of Count I, Count 2 and Count 3

and each juror had been polled and affirmed the judgment of guilt. DVD 2008 Baker 2e 91-94.

The official Court record does not state that the Defendant was present but this Court finds so as

he does not claim he was not. Defense Counsel, Pappas, moved to dismiss the Phase II of the

Habitual Criminal allegations for being unconstitutionally vague. Discussions on page 62-71. The

Trial Court denied tine Defendant’s Motion to Dismiss DVD 2008 Baker 2e 95-107.

Mr. Pappas waived ajury as to phase two of the proceedings DVD 2008 Baker 2e 107-108. The

State presented its case. The Court adjudged the Defendant to be a Habitual Offender. Judgement

was entered on Count 111. Defendant was taken into custody, a Pre-Sentence Report was Ordered

.

5

USDC IN/ND case 3:19-cv-00423-RLM-MGG document 13-17 filed 10/07/19 page 79 of 82

and a Sentencing date was set. DVD 2008 Baker 2e 109-131. The Indiana Court of Appeals found

that Petitioner waived his right to trial by jury on the habitual offender count in Baker v. Stale, 922

N.E.2d 723 (lnd. App. 2010) at p. 727.

This Court finds the trial tactics of defense counsel were a major reason for the waiver of

Defendant’s rights to trial by jury on the habitual offender account. The tactics chosen were in an

attempt to lessen the severity of the actions the Petitioner was found to have committed against his

granddaughter and other victims at trial. Motion denied.

Argument VI:

Claim: Petitioner alleges Appellate Court committed ineffective assistance by failing to challenge

the sentence in the motion to correct errors portion of the Post trial proceedings.

Petitioner alleges that trial Court was too harsh in sentencing. The Court is unconvinced that the

trial court improperly waived the aggravators and mitigators and came to an improper decision.

This argument is denied outright as the decision was in the discretion of the Trial Court.

Argument VH:

Claim: Petitioner alleges that appellate and trial counsel were ineffective by not objecting to nor ■

arguing against alleged improper vouching opinion testimony by the Prosecutor during the course

of the trial.

This Court finds that there was corroborated trial testimony regarding the Defendant’s behavior.

The testimony provided overwhelming proof of his guilt.

There was considerable testimony from each of the three victims, all minors. Also, there was also

cooberating evidence by adult witnesses.

I. Wendy Baker (mother of victim) DVD 2008 Baker Comp Parti 701-743.

2; Brandy Klemzcak (neighbor of victim) DVD 2008 Baker Comp Part I, 964-984.

3.Lisa Huff (mother of victim) DVD 2008 Baker Comp Part I, 985-1013.

Any claimed error was harmless. Williams v. State, 43 N.E.3d 578 (lnd. 2015). Motion is Denied.

Argument VUI:

' Claims: Respondent alleges appellate counsel committed ineffective representation by failing to

properly handle alleged prejudicial pre-trial publicity.

The Indiana standard to determine if a trial court errored by denying a motion for change of venue

due to pre-trial publicity is outlined in Specht v. State, 734 NE2d 239 (lnd. 2000). In this case the

trial court and trial counsel had extensive conversations about pre trial motions DVD 2008 Baker

Pretrial 1-85. Defense moved for a test jury which was denied by the Trial Court. DVD 2008

Baker Pretrial 24-37.

During voir dire, all jurors were questioned on this point. The voir dire was extensive and lasted

two (2) days. DVD 2008 Baker Comp Part I 3-356. The trial judge was satisfied tine necessary

protections in this case were received by the Petitioner. •

6

USDC IN/ND case 3:19-cv-00423-RLM-MGG document 13-17 filed 10/07/19 page 80 of 82

The claim of error in argument VII! is denied.

Argument IX:

Claim: Petitioner alleges the Prosecuting attorney gave personal analogies of the beyond a

reasonable doubt standard, causing him alleged harm. He claims the appellate counsel was

ineffective when she failed to raise on appeal an alleged error on direct appeal.

Petitioner alleged Trial Counsel, Pappas errored by not objecting to Prosecutor’s definition of

beyond a reasonable doubt DVD 2008 Baker 2e 18. By choosing not to object, trial counsel

reasonably chose a strategy which cast Defendant in die most favorable light.

Petitioner failed to prove that trial counsel was ineffective, as defined by Saylor v. State, 765

N.E.2d 525 (Ind. 2002) at 549.

Petitioner alleges defense counsel errored during his closing arguments by defining reasonable

doubt His discussion of die evidence was long. DVD 2008 Baker 2e 26-58. Trial counsel used an

analogy that reasonable doubt was like “sending your kids out on the lake on ice, die first ice of

the fall.”- DVD 2008 Baker 2e 57.

In. Northeast Indiana frozen lakes in the winter is a reality-. Many people live on or near a lake or a

pond. Trial Counsel’s strategy was an attempt to befriend thejurors and draw similarities between

their lives and the Defendant’s.

Appellate Co.unsel made no error by failing to point this issue to the Court of Appeals in direct

appeal.

Also, Judge Carpenter read the standard final instructions regarding the definition of beyond a

reasonable doubt. DVD 2008 Baker 2e 78-79. The Trial Court's instructions cured any possible

error committed during the trial.

Petitioner claims he was denied affective assistance of appellate counsel on direct appeal. As the

Indiana Supreme Court has noted, experienced appellate advocates must winnow out arguments on

appeal and focus on one central issue, or at most a few conditions.” Bieghler v. State, 690 N.£.2d

188, at 193-194 (Jone.y v. Barnes, 463 U.S. 745, 751-752, 77 L. Ed. 2d 987. 103 S. Ct. 3300

(1983).

Motion denied.

Argument X:

Claim: Petitioner alleges that appellate counsel errored when she did not raise on Appeal that the

Trial Counsel signed an evidence stipulation

This claim was addressed by the Indiana Court of Appeals in Baker v. State, 922 N.E.2d 723 (Ind.

App. 2010). The Court of Appeals found that the record indicates that Baker’s trial counsel used the

stipulations as part of a strategy- to challenge the victims during cross examination. Trial Counsel was

reasonable.

The trial strategy of appellate counsel was reasonable. She “winnowed outthe weaker

arguments” on appeal. This was recommended in Bieghler.

Motion is denied.

7

. USDC IN/ND case 3:19-cv-00423-RLM-MGG document 13-17 filed 10/07/19 page 81 of 82

Argument XI:

Claim: Petitioner claims that Appellate Counsel was ineffective regarding the admission in trial

of two evidentiary stipulation. The Indiana Court of Appeals round against this Argument in Baker v.

Stale, 922 N.E.2d 723 (Ind. App. 2010).

Trial Counsel’s opening statements evidenced a strategy to use the testimony of the three minor

victims as a tactic to attack their credibility. DVD Baker Comp Part 1,393-401.

Appellate Counsel and Trial Counsel committed no error.

Petitioner’s argument XI is denied.

Argument XII:

Claim: Petitioner claims appellate counsel was ineffective by failing to raise trial counsel did not

move to sever the Counts for separate trials.

Using the logic expressed, in argument XI above, this Court finds that trial court’s behavior was

part of a trial strategy. Trial Counsel’s strategy was reasonable. Appellate counsel committed no error.

Motion denied.

Argument XIII:

Claim: Petitioner alleges that Appellate Counsel was ineffective regarding the expert witness

testimony of the trial.

This Court finds that trial court counsel developed a strategy that included presentations of

evidence rebutting the state’s trial witnesses. Trial Counsel’s opening statement referenced the expected

testimony of the State's expert witness. Counsel clearly intended to discredit during cross examination

three minor victim’s testimony. DVD 2008 Baker Comp Part I, 400-401 Appellate Counsel committed no

error.

Further, the Indiana Court of Appeals resolved this issue unfavorably to the Petitioner in Baker v. State,

922 N.E.2d 723 (Ind. App. 2010) 733-734.

Petitioner’s claimed error is denied.

Argument XTV:

Claim: Petitioner alleges Appellate Counsel was ineffective by not raising the allegation that trial

counsel did not strongly and clearly advise the Defendant to accept a plea agreement.

Petitioner chose not to accept a plea agreement and suffered the consequences. Trial Counsel’s

strategy of going forward with a jury trial proved wrong.

Petitioner’s motion is denied.

Argument XV:

Claim: Petitioner alleges Appellate Counsel was ineffective by not pointing out alleged

Prosecutor misconduct.

8

• USDC IN/ND case 3:19^^423-RLM-MGG document 13-17 filed 10/07/19 page 82 of 82

The Court finds that trial court instructed the jury in preliminary and .final instructions as to the

sources of evidence to consider. Baker disk 2e, screens 52 to 56. The trial court’s efforts cured any

alleged error in this area. DVD Baker Comp Part 1, 369, DVD 2008 Baker 2e, 72-90.

Petitioner’s claim in argument XV is denied.

Argument XVI:

j

Claim: Petitioner alleges appellate counsel was ineffective by not petitioning for a rehearing by

the Indiana Supreme Court and creatively arguing that he was denied rights under Federal and State equal

protection laws.

There is overwhelming testimony to convict the Petitioner of multiple offenses. He may have

been fortunate the Prosecuting Attorney did not file additional counts.

The Appellate Counsel’s selective arguments regaraingjury instructions in child molest cases with

multiple counts and multiple victims resulted in new law being created in Indiana. Baker v. State,

948 N.E.2d 1169 (Tnd. 2011). She was not prescient of all possible issues, lacking seven years of

reflective thought, however, she is not ineffective.

This Court finds that appellate counsel is competent

Petitioner’s Argument XVI is denied.

Argument XVII:

Claim: Petitioner alleges Appellate Counsel was ineffective by not arguing the Indiana Supreme

Court decision was an “unreasonable application of clearly established law”.

The Petitioner’s trial attorney was thoroughly familiar with the facts of the case and was highly

competent.

Petitioner’s trial attorney tactically allowed certain evidence to be introduced by reason of the

calculated evidence stipulation. Together they took the calculated risk of trial. Petitioner now

raises issue with the State of the record and how it contains uncertainty in the evidence. There was

overwhelming testimony of guilt on each of the counts for each of the victims. There is a solid

basis for a finding of guilt

The complained of issue is waived.

Petitioner’s Argument is denied.

Petitioner’s Petition for Post Conviction Relief is denied.

SO FOUND AND ORDERED TH1S 16 DAY OF JANUARY, 2018.

*i

JvScott VanDerbeck, Special Judge

DeKalb Superior Court

9

Additional material

from this filing is

available in the

Clerk's Office.