Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019 Page 1 of 12

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.

ATTORNEY FOR APPELLANT

Megan J. Schueler

Ferguson Law

Bloomington, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jeffrey Archer,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent

July 25, 2019

Court of Appeals Case No.

18A-PC-2681

Appeal from the Marion Superior 

Court

The Honorable Marc Rothenberg, 

Judge

The Honorable Amy Barbar, 

Magistrate

Trial Court Cause No.

49G02-1604-PC-16169

Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019 Page 2 of 12

[1] Jeffrey Archer appeals the denial of his petition for post-conviction relief, 

arguing that the post-conviction court erroneously determined that he did not 

receive the ineffective assistance of appellate counsel. Finding no error, we 

affirm.

Facts

[2] The underlying facts, as described by this Court in Archer’s direct appeal, are as 

follows:

Archer is the paternal step-grandfather of L.B., born June 2, 

2003. L.B. lives with her maternal grandparents, Michael and 

Cindy Tollar, who have had full custody of L.B. since December 

5, 2008. The Tollars allowed L.B. to visit with her paternal 

grandmother, Patricia, who is married to Archer, every other 

weekend from Friday night to Sunday after dinner. L.B. did not 

have her own bed at Archer’s house, so she slept on an air 

mattress in the living room or in the bed between Patricia and 

Archer.

Sometime in early 2011, Cindy noticed L.B.’s demeanor would 

be different after she returned from visits with the Archers. On 

May 2, 2011, L.B. told her school’s student services advisor that 

Archer had touched her multiple times on the bottom, vagina, 

back, and chest. L.B. also reported Archer touched her inside 

her underwear and once put his fingers in her genitalia. The 

advisor contacted the Department of Child Services.

After detectives and service providers interviewed L.B., the State 

charged Archer with one count of Class A felony child molesting 

and two counts of Class C felony child molesting. On July 16, 

2012, a jury found Archer guilty as charged. The trial court 

entered a conviction of Class A felony child molesting and 
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merged the two counts of Class C felony child molesting. The 

trial court sentenced Archer to twenty-five years for Class A 

felony child molesting and two years for Class C felony child 

molesting, to be served concurrently.

Archer v. State, 996 N.E.2d 341, 345-46 (Ind. Ct. App. 2013). In his direct 

appeal, Archer argued, among other things, that the trial court admitted 

impermissible vouching testimony and that he had received the ineffective 

assistance of trial counsel. This Court affirmed the trial court. Id. at 354. 

[3] On November 17, 2018, Archer filed an amended petition for post-conviction 

relief, arguing that he had received the ineffective assistance of appellate 

counsel for numerous reasons, including that appellate counsel failed to argue 

prosecutorial misconduct and filed a deficient brief. Hearings on Archer’s 

petition took place on March 23 and June 6, 2018. On October 16, 2018, the 

post-conviction court denied Archer’s petition. Archer now appeals.

Discussion and Decision

I. Standard of Review

[4] The general rules regarding the review of a ruling on a petition for postconviction relief are well established:

“The petitioner in a post-conviction proceeding bears the burden 

of establishing grounds for relief by a preponderance of the 

evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). 

“When appealing from the denial of post-conviction relief, the 

petitioner stands in the position of one appealing from a negative 

judgment.” Id. To prevail on appeal from the denial of post-
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conviction relief, a petitioner must show that the evidence as a 

whole leads unerringly and unmistakably to a conclusion 

opposite that reached by the post-conviction court. Weatherford v. 

State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the postconviction court in this case made findings of fact and 

conclusions of law in accordance with Indiana Post-Conviction 

Rule 1(6). Although we do not defer to the post-conviction 

court’s legal conclusions, “[a] post-conviction court’s findings 

and judgment will be reversed only upon a showing of clear 

error—that which leaves us with a definite and firm conviction 

that a mistake has been made.” Ben–Yisrayl v. State, 729 N.E.2d 

102, 106 (Ind. 2000) (quotation omitted).

Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).

[5] Archer’s sole argument on appeal is that the post-conviction court erroneously 

determined that he did not receive the ineffective assistance of appellate 

counsel. To establish ineffective assistance of appellate counsel, the petitioner 

must show that (1) appellate counsel was deficient in his or her performance, 

and (2) the deficiency resulted in prejudice. Id. at 269. Failure to satisfy either 

prong will cause the claim to fail. Henley v. State, 881 N.E.2d 639, 644 (Ind. 

2008). To satisfy the second prong, the defendant must show a reasonable 

probability that, but for counsel’s errors, the result of the proceeding would 

have been different. Id.
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II. Assistance of Appellate Counsel

A. Prosecutorial Misconduct

[6] Archer first alleges that he received the ineffective assistance of appellate 

counsel because appellate counsel failed to raise the issue of prosecutorial 

misconduct. He contends that prosecutorial misconduct occurred through 

improper vouching and unsavory depictions of defense counsel.

[7] The law regarding prosecutorial misconduct is well established:

In reviewing a claim of prosecutorial misconduct properly raised 

in the trial court, we determine (1) whether misconduct occurred, 

and if so, (2) “whether the misconduct, under all of the 

circumstances, placed the defendant in a position of grave peril to 

which he or she would not have been subjected” otherwise. 

Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006), quoted in Castillo 

v. State, 974 N.E.2d 458, 468 (Ind. 2012). A prosecutor has the 

duty to present a persuasive final argument and thus placing a 

defendant in grave peril, by itself, is not misconduct. Mahla v. 

State, 496 N.E.2d 568, 572 (Ind. 1986). “Whether a prosecutor’s 

argument constitutes misconduct is measured by reference to 

case law and the Rules of Professional Conduct. The gravity of 

peril is measured by the probable persuasive effect of the 

misconduct on the jury’s decision rather than the degree of 

impropriety of the conduct.” Cooper, 854 N.E.2d at 835 

(emphasis added) (citations omitted). To preserve a claim of 

prosecutorial misconduct, the defendant must—at the time the 

alleged misconduct occurs—request an admonishment to the 

jury, and if further relief is desired, move for a mistrial. Id.; see 

also Maldonado v. State, 265 Ind. 492, 498, 355 N.E.2d 843, 848 

(1976).
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Our standard of review is different where a claim of prosecutorial 

misconduct has been procedurally defaulted for failure to 

properly raise the claim in the trial court, that is, waived for 

failure to preserve the claim of error. Booher v. State, 773 N.E.2d 

814, 817-18 (Ind. 2002). The defendant must establish not only 

the grounds for prosecutorial misconduct but must also establish 

that the prosecutorial misconduct constituted fundamental error. 

Id. at 818. Fundamental error is an extremely narrow exception 

to the waiver rule where the defendant faces the heavy burden of 

showing that the alleged errors are so prejudicial to the 

defendant’s rights as to “make a fair trial impossible.” Benson v. 

State, 762 N.E.2d 748, 756 (Ind. 2002), quoted in Castillo, 974 

N.E.2d at 468 and Cooper, 854 N.E.2d at 835. . . .

Ryan v. State, 9 N.E.3d 663, 667-68 (Ind. 2014) (footnote and emphases

omitted).

[8] Archer alleges that the prosecutor improperly vouched for L.B. during opening

argument when she made the following statements:

• “And [L.B.] will tell you what happened at night when she was sleeping 

with the defendant.” Appellant’s App. Vol. II p. 137.

• L.B. told her school counselor “exactly what was happening in that 

bedroom with the defendant the best way that a then eight-year old child 

can communicate that.” Id. at 138.

• “[T]he evidence in this case is not going to be easy to listen to. . . . [B]ut 

it happens and it happened to this kid. Id.

• “And I just beg of you that you listen to her and what she has to tell you. 

She will tell you that the defendant is guilty of Counts I, II, and Count 

III.” Id. at 138-39.

[9] Archer also alleges that the prosecutor improperly vouched for L.B. during 

closing argument when she made certain statements, including the following:
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• L.B. had “[n]o reason whatsoever to make this up.” Appellant’s App. 

Vol. IV p. 182.

• “And to a kid who has had a grandfather’s hand touch her vagina, when 

a defense attorney says, well, if I were to put my hand right here, could 

you show me? [W]hat does that mean? You mean, you want me to take 

your hand and touch my vagina? No. . . . It’s creepy by my [sic] one’s 

standards. . . . But why would you do such a thing like that? Well, I’ll 

tell you why because everything that she [says] in that deposition can be 

bought [sic] out when she comes in here to testify. Classic trick. The 

same way as when your [sic] asking a child questions as defense attorney, 

you stand over hereby [sic] your client so she’s got to look at him. . . . 

It’s a trick. Classic. And so how do people get away with stuff like this? 

We read it in the news. How are those guys doing this to kids? Finally, 

not getting caught because of this. This is [w]hat happens. This is not 

the only court in this building. Other cases are going on, same thing. 

This is [w]hat happens. That’s how they get away with it.” Id. at 222-24. 

• “And I just cannot fathom that any of you would think it was reasonable 

that that was some kind of performance from her. It wasn’t.” Id. at 228.

[10] Regarding the prosecutor’s statements made during opening argument, Archer 

fails to present any argument as to how these statements constituted misconduct 

or placed him in grave peril. But regarding the prosecutor’s statements made 

during closing argument, we agree that the prosecutor’s suggestion that defense 

counsel was playing a “classic trick” to help Archer be acquitted was 

inappropriate. As our Supreme Court has stated regarding a different closing 

argument by the same prosecutor,

Without question, the characterization of defense counsel’s line 

of argumentation as “how guilty people walk” and a “trick,” is 

inconsistent with the requirement that lawyers “demonstrate 

respect for the legal system and for those who serve it, including 

. . . other lawyers,” see Preamble [5], Ind. Professional Conduct 

Rules.
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Ryan, 9 N.E.3d at 670. And as to the prosecutor’s statement about defense 

counsel’s physical position during questioning and the prosecutor’s statement 

about how people “get away with stuff like this,” appellant’s app. vol. iv p. 223, 

we agree that those comments were also improper. This Court has addressed 

similar comments in yet another closing argument by this same prosecutor, 

finding that such comments were outside the realm of professionalism and were 

not appropriate comments on the law and the facts of the case. See Brummett v. 

State, 10 N.E.3d 78, 85 (Ind. Ct. App. 2014) (discussing prosecutor’s comments 

that implied the defense counsel’s arguments helped guilty men go free and 

statement that defense counsel employed tricks), aff'd on reh’g, 24 N.E.3d 965 

(Ind. Ct. App. 2014).

[11] Archer argues, essentially, that as in Ryan and Brummett, the same prosecutor in 

this case committed reversible misconduct with the comments she made during 

his jury trial and that, consequently, his appellate counsel had a clearly stronger 

argument to raise—prosecutorial misconduct—than any of the litany of 

arguments he actually raised.1 Cf. Bieghler v. State, 690 N.E.2d 188, 193-94 (Ind. 

1997) (stating that a claim of ineffective assistance of appellate counsel may be 

 

1

In his direct appeal, Archer alleged that the trial court allowed three witnesses to vouch for L.B.’s credibility 

as a witness. This Court found no error on this basis. Archer rehashes this argument in his appeal from the 

post-conviction court’s judgment, but because this Court has already addressed it, we decline to do so again. 

See Lowery v. State, 640 N.E.2d 1031, 1037 (Ind. 1994) (noting that issues already adjudicated in the appellate 

process are unavailable to a petitioner for post-conviction relief).
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shown when “significant and obvious” issues that were “clearly stronger than 

those presented” existed in the record).2

[12] Assuming solely for argument’s sake that appellate counsel failed to raise a 

clearly stronger issue of prosecutorial misconduct, Archer nonetheless is unable 

to demonstrate that, but for his counsel’s deficient performance, the result of his 

direct appeal would have been different. The prosecutor’s comments that 

Archer asserts form the basis of her alleged misconduct are, as the postconviction court correctly found, “nearly identical” to the same comments 

disapproved of by our Supreme Court in Ryan. Appellant’s App. Vol. 2 at 20-

21; compare supra at 6-7 with Ryan, 9 N.E.3d at 668-72. However, while our 

Supreme Court disapproved of the prosecutor’s similar comments in Ryan, it 

held that those comments were insufficient to demonstrate fundamental error. 

9 N.E.3d at 672-73. Accordingly, even if appellate counsel had raised the issue 

of fundamental error with respect to the prosecutor’s comments here, this Court 

would have affirmed. 

 

2 To the extent that Archer argues that Brummett and Ryan were not available for appellate counsel to rely on

because they had not yet been decided, we note that neither case created a new legal standard. Indeed, in 

Brummett, our Supreme Court explicitly clarified that “Ryan did not alter the doctrine of fundamental error” 

on issues of prosecutorial misconduct. Brummett, 24 N.E.3d at 966. In other words, the law of prosecutorial 

misconduct was well established at the time of Archer’s direct appeal and was unchanged by Brummett and 

Ryan.
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[13] In sum, the post-conviction court did not err by finding that Archer did not 

receive the ineffective assistance of appellate counsel based on the failure to 

raise this issue in the direct appeal.

B. Appellate Brief

[14] Archer next alleges that he received the ineffective assistance of appellate 

counsel because appellate counsel filed a deficient brief on his behalf. Archer 

contends that appellate counsel did not present cogent argument regarding

improper vouching and ineffective assistance of trial counsel issues and that

appellate counsel did not have voir dire transcribed.

[15] Counsel is not required to be “perfect representation, only a ‘reasonably 

competent attorney.’” Woodson v. State, 961 N.E.2d 1035, 1042 (Ind. Ct. App. 

2012) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “Isolated 

mistakes, poor strategy, inexperience, and instances of bad judgment do not 

necessarily render representation ineffective.” Id. We give great deference to 

appellate counsel’s decisions regarding which arguments to raise on appeal, 

which is “one of the most important strategic decisions of appellate counsel.” 

Hampton v. State, 961 N.E.2d 480, 491 (Ind. 2012) (citing Bieghler v. State, 690 

N.E.2d 188, 193 (Ind. 1997)). Appellate counsel’s performance, as to the 

selection and presentation of issues, will thus be presumed adequate unless 

found unquestionably unreasonable considering the information available in the 

trial record or otherwise known to the appellate counsel. Id. at 491-92. To 

succeed on this claim, the petitioner must show that the unraised issue was 
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significant, obvious, and clearly stronger than the issues that were raised. 

Bieghler, 690 N.E.2d at 194.

[16] Regarding the vouching and ineffective assistance of trial counsel issues, Archer 

contends that appellate counsel did not present cogent argument in his appellate 

brief, yet on direct appeal, this Court discussed both issues at length. Thus, we 

find his argument on this basis unavailing.

[17] Archer also contends that appellate counsel provided ineffective assistance 

because counsel did not obtain a copy of the transcript of voir dire. During the 

post-conviction hearing, appellate counsel testified that it was not his policy to 

review voir dire because what transpires then is not evidence. A record on 

appeal includes “all proceedings before the trial court,” Ind. Appellate Rule 

2(L), and as we have stated, appellate counsel has a duty to thoroughly review 

the entire record of a defendant’s proceedings. Wilson v. State, 94 N.E.3d 312, 

321 (Ind. Ct. App. 2018). 

[18] But Archer cannot show prejudice from appellate counsel’s error. Although 

Archer contends that he was prejudiced by a prospective juror who, after

acknowledging that she could not be fair and impartial, was selected to serve on 

the jury, the record shows that this prospective juror was dismissed from jury 

service. After defense counsel challenged this prospective juror for cause, the 

trial court stated, “I think she’s pretty bad” and “I’m going to grant” the 

challenge. Appellant’s App. Vol. II p. 122-23. This prospective juror was then
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excused. Accordingly, Archer suffered no prejudice from appellate counsel’s 

failure to review this section of the transcript. 3 4

[19] In sum, the post-conviction court did not err by finding that Archer did not 

receive the ineffective assistance of appellate counsel.

[20] The judgment of the post-conviction court is affirmed.

Najam, J., and Robb, J., concur.

 

3 Archer mentions several other issues that appellate counsel could have raised in the direct appeal. 

Appellate counsel raised six issues in the direct appeal. Archer does not, in this instant appeal, show that the 

unraised issues were significant, obvious, and clearly stronger than the issues that appellate counsel did raise. 

4

In his direct appeal, Archer alleged that he had received the ineffective assistance of trial counsel. This 

Court found that he had not. Archer again raises this argument in this instant appeal, but because this Court 

has already addressed it, we decline to do so again. See Lowery, 640 N.E.2d at 1037.