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: ATTORNEYS FOR APPELLEE:

JOSEPH M. CLEARY GREGORY F. ZOELLER

Collignon & Dietrick Attorney General of Indiana

Indianapolis, Indiana

JODI KATHRYN STEIN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

GREGORY FOSTER, )

)

Appellant-Petitioner, )

)

vs. ) No. 02A04-1107-PC-398

)

STATE OF INDIANA, )

)

Appellee-Respondent. )

APPEAL FROM THE ALLEN SUPERIOR COURT

The Honorable Frances C. Gull, Judge

Cause No. 02D04-0604-PC-51

May 3, 2012

MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
2

STATEMENT OF THE CASE

Appellant-Petitioner, Gregory Foster (Foster), appeals the post-conviction court’s 

denial of his petition for post-conviction relief. 

We affirm. 

ISSUES

Foster raises three issues on appeal, which we consolidate and restate as the 

following two issues:

(1) Whether the post-conviction court erred in finding that he received the 

effective assistance of counsel; and

(2) Whether the post-conviction court erred in denying his petition for postconviction relief despite Foster’s claim of newly discovered evidence.

FACTS AND PROCEDURAL HISTORY

In Foster v. State, 795 N.E.2d 1078, 1082-84 (Ind. Ct. App. 2003), trans. denied., 

we outlined the facts of this case as follows:

On November 18, 2000, at approximately 3:00 a.m., S.J. was 

walking from her apartment to visit a friend. S.J. lived in the Eden Green 

Apartments in Fort Wayne, Indiana. As S.J. walked down the street, Foster 

drove by in a white Toyota Camry, and called out the name “Diane,” 

thinking that S.J. was her aunt. S.J. informed Foster that she was not Diane 

and told him her first name. Foster offered S.J. a ride because it was late at 

night and she was walking alone. S.J. accepted the ride and entered the car.

Once S.J. entered the car, Foster drove in the opposite direction of S.J.’s 

intended destination.

As a result, S.J. informed Foster that he was going in the wrong 

direction. Foster told S.J. that he had to take care of some business first and 

encouraged her to calm down. At this point, S.J. became worried, but she 

was not scared. However, S.J. asked Foster several times to stop in order to 
3

let her out of the car. Foster ignored her requests and continued to drive to 

the Canterbury Green Apartments, on the other side of town. Foster parked 

in a carport and left the car for about five minutes. S.J. testified that she 

remained in the car for the following reasons: (1) it was late, (2) she did 

not know the area, (3) it was dark, and (4) mostly white people, who she 

did not think would help her, inhabited the Canterbury Green Apartments.

When Foster reentered the car, he placed a black handgun on the 

dashboard and drove to Shoaff Park located in Fort Wayne, Allen County, 

Indiana. After seeing the handgun, S.J. was scared, and she began to cry. 

Again, S.J. informed Foster that she wanted to go home. Foster told S.J. to 

shut up. Then, Foster parked the car in a dark area of Shoaff Park 

surrounded by trees. He ordered that S.J. perform oral sex on him. When 

Foster threatened to use the handgun, S.J. performed oral sex on him as he 

requested. Afterwards, Foster instructed S.J. to pull her pants off and sit 

back in her seat. When S.J. complied, Foster lay on top of her, and engaged 

in sexual intercourse with her. S.J. testified that she cried and asked Foster 

to stop, but that he just told her to shut up and stop crying. Foster 

ejaculated on S.J.’s thigh and ordered her out of the car. S.J. testified that 

she refused to exit the car because she thought Foster would kill her if she 

exited the car. When S.J. refused to exit the car, Foster drove her back to 

her apartment. As Foster drove away, S.J. remembered the license plate 

number of the car Foster was driving.

As S.J. stood outside, she saw Fort Wayne Police Officer James 

King (Officer King) in a store parking lot. S.J. approached Officer King 

and told him that she had been raped. S.J. was hysterical and Officer King 

calmed her down before taking her statement. S.J. provided Officer King 

with a description of her attacker, and a description of the car he was 

driving with the license plate number. Officer King contacted the medics 

for S.J. S.J. was taken to the Sexual Assault Treatment Center and 

examined by Nurse Stephanie Good (Nurse Good). Nurse Good completed 

a rape kit for S.J. S.J. reported that her upper arms were tender. There 

were also fresh bruises on her lower extremities. In the meantime, Officer 

King ran the license plate number provided by S.J. and discovered that the 

car was registered to Shirley Foster, Foster’s mother. S.J. later identified 

Foster from a photo array.

Indiana State Police DNA Analyst, Mary Reed [(DNA Analyst 

Reed)], performed a DNA analysis on several of the samples from S.J.’s 

rape kit. The swab taken from S.J.’s left thigh was consistent with Foster’s 

DNA. [DNA Analyst Reed] testified that one African–American in fiftyeight billion would match the DNA found on S.J.’s left thigh and external 

genitalia. The vaginal and cervical swabs were consistent with S.J., Foster, 
4

and an unknown third contributor. The swab taken from S.J.’s right groin 

area was also consistent with both S.J. and Foster.

On November 21, 2000, Fort Wayne Detective Hilda Williams 

(Detective Williams) interviewed Foster. Detective Williams testified that, 

at first, Foster denied that he picked up a girl during the early hours of 

November 18, 2000. However, Detective Williams testified that Foster 

later claimed that he picked up a girl, on November 18, 2000, and drove her 

one block up the street, but that no sexual contact occurred.

On February 16, 2001, the State of Indiana filed [an Information], 

charging Foster with Count I, rape, a Class A felony; Count II, criminal 

deviate conduct, a Class A felony; and Count III, criminal confinement, a 

Class B felony. On March 5, 2001, a warrant was issued for Foster’s arrest.

Foster was arrested pursuant to the warrant on March 7, 2001. On March 9, 

2001, the trial court held Foster’s initial hearing. On April 25, 2001, the 

State filed an additional [I]nformation alleging that Foster was a habitual 

offender, I.C. § 35-50-2-8.

* * *

A jury trial was held on April 23–24, 2002. On April 24, 2002, 

during a hearing held outside of the presence of the jury regarding final 

instructions, Foster objected to the State’s tendered final instruction 

providing that a conviction can rest on the uncorroborated testimony of the 

victim, if believed beyond a reasonable doubt. The trial court gave the 

instruction over Foster’s objection. On the same date, the jury found Foster 

guilty of rape, criminal deviate conduct, and criminal confinement. The 

jury also determined that Foster was a habitual offender.

On May 20, 2002, a sentencing hearing was held. The trial court 

sentenced Foster to the Indiana Department of Correction for a period of 

fifty (50) years on Count I, enhanced by a term of thirty (30) years due to 

his habitual offender status; fifty (50) years on Count II; and twenty (20) 

years on Count III, for an aggregate sentence of 150 years; each sentence to 

run consecutively to the others.

On appeal, Foster raised three issues with respect to his conviction and sentence: 

(1) whether the trial court committed reversible error when it instructed the jury that the 

sole and uncorroborated testimony of the alleged victim, if believed beyond a reasonable 

doubt, was sufficient to support a conviction; (2) whether the trial court properly denied 
5

Foster’s motions for discharge pursuant to Indiana Criminal Rule 4; and (3) whether 

Foster’s 150-year sentence was proper. Id. at 1082. On September 17, 2003, we 

affirmed his conviction and sentence. Id.

On April 27, 2006, Foster filed a petition for post-conviction relief, which he 

subsequently amended on January 19, 2010. In his amended petition, Foster alleged that 

(1) his trial and appellate counselors had provided him with ineffective assistance; (2) the 

State had failed to disclose material exculpatory evidence; and (3) there existed newly 

discovered material and exculpatory evidence that warranted a new trial for Foster.

1

 On 

August 27, 2010, the post-conviction court held an evidentiary hearing on Foster’s 

petition, and on June 15, 2011, the post-conviction court denied the petition. 

Foster now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

On appeal from the denial of post-conviction relief, a petitioner stands in the 

position of one appealing from a negative judgment. Mauricio v. State, 941 N.E.2d 497, 

498 (Ind. 2011). In such cases, a petitioner must show that the evidence, taken as a 

whole, leads unerringly and unmistakably to a conclusion opposite that reached by the 

post-conviction court. Id. We do not defer to the post-conviction court’s legal 

conclusions, but we will reverse only on a showing of clear error. Id. Moreover, this 

court will only consider the probative evidence and all reasonable inferences therefrom 

 

1 We will not address the issue of whether the State failed to disclose material exculpatory evidence as 

Foster has not raised the issue on appeal.
6

that support the post-conviction court’s determination. Bigler v. State, 732 N.E.2d 191, 

194 (Ind. Ct. App. 2000), trans. denied. We will not reweigh the evidence. Id. 

I. Ineffective Assistance of Counsel

Foster first contends that he received ineffective assistance from both his trial and 

appellate counsel. The effective assistance of counsel is a right that is guaranteed to all 

criminal defendants by the Sixth Amendment to the United States Constitution and 

Article I, section 13 of the Indiana Constitution. In order to establish ineffective 

assistance of counsel, a defendant must fulfill both prongs of the test set forth in 

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reh’g 

denied. Specht v. State, 838 N.E.2d 1081, 1087 (Ind. Ct. App. 2005), trans. denied. First, 

the defendant must prove that his or her counsel’s performance fell below an objective 

standard of reasonableness based on prevailing professional norms, and, second, that 

there is a reasonable probability that, but for counsel’s failure to meet prevailing 

professional norms, the result of the proceeding would have been different. Armstrong v. 

State, 932 N.E.2d 1263, 1268 (Ind. Ct. App. 2010). “Because all criminal defense 

attorneys will not agree on the most effective way to represent a client, ‘isolated 

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

render representation ineffective.’ Thus, there is a strong presumption that counsel 

rendered adequate assistance and used reasonable professional judgment.” Id. The 

presumption that an attorney has discharged his duty fully is overcome for purposes of 

post-conviction relief only by showing that the attorney’s action or inaction made the 
7

proceedings a mockery of justice and shocking to the conscience of the court. Whitlock 

v. State, 456 N.E.2d 717, 718 (Ind. 1983).

A. Trial Counsel

According to Foster, his trial counsel provided ineffective assistance in four 

respects: counsel failed to (1) investigate the DNA of the unknown person found during 

S.J.’s examination; (2) object to S.J.’s testimony that she was not sure whether Foster was 

the father of her child; (3) move for a judgment on the evidence at the end of the State’s 

case; and (4) object when the trial court submitted ex parte responses to jury questions. 

We will address each of these arguments individually.

1. Failure to Investigate

As stated above, DNA Analyst Reed performed a DNA analysis on several of the 

samples from S.J.’s rape kit. The vaginal and cervical swabs were consistent with S.J., 

Foster, and an unknown third contributor. In a deposition taken before trial by a prior 

counsel, S.J. indicated that she thought the father of her child might be a man named Ben 

Spencer, Jr. (Spencer). Then, at trial she indicated that she had engaged in sexual 

intercourse with her boyfriend, whom she identified as Robert, shortly prior to meeting 

Foster. She also indicated at trial that she was on her way to visit another man, Darrell 

Masterson (Masterson), at a pool hall when she met Foster on the street. Later in the

trial, S.J. testified that she had realized that she had engaged in sexual intercourse with 

Spencer prior to meeting Foster, as Spencer was her boyfriend at the time rather than 
8

Robert. Post-trial DNA testing indicated that a man with the last name of Pippin was the 

father of S.J.’s child. 

On appeal, Foster argues that his trial counsel provided ineffective assistance 

because counsel failed to investigate the identity of this unknown contributor of DNA 

found during S.J.’s exam. According to Foster, knowledge of the unknown person could 

have allowed him to impeach S.J.’s testimony. Also, one of his trial counsel’s theories of 

defense was that S.J. was a prostitute or promiscuous, and Foster asserts that knowledge 

of the identity of the unknown third person could have bolstered this defense. 

We acknowledge that the failure to conduct an investigation can constitute 

ineffective assistance of counsel. See McCarty v. State, 802 N.E.2d 959 (Ind. Ct. App. 

2004), trans. denied. However, when deciding a claim of ineffective assistance of 

counsel for failure to investigate, we apply a great deal of deference to counsel’s 

judgments. Parish v. State, 838 N.E.2d 495, 500 (Ind. Ct. App. 2005), reh’g denied. We 

recognize that even the finest, most experienced criminal defense attorneys may not agree 

on the ideal strategy or most effective way to represent a client; therefore, we will assume 

that counsel performed adequately and we will defer to counsel’s strategic and tactical 

decisions. Mallory v. State, 954 N.E.2d 933, 935 (Ind. Ct. App. 2011). Moreover, many 

failures to investigate require going beyond the trial record to show what the 

investigation, if undertaken, would have produced. Slusher v. State, 823 N.E.2d 1219, 

1223 (Ind. Ct. App. 2005). This is necessary because the success on the prejudice prong 
9

of an ineffectiveness claim requires a showing of a reasonable probability of affecting the 

result. Id. 

At the post-conviction hearing, Foster’s trial counsel admitted that he did not 

recall making any efforts to identify the unknown third contributor of the DNA found on 

S.J. However, the following exhange occurred at the post-conviction hearing:

[STATE]: Apparently [there] was an unknown individual and the question 

I have is, like either it could’ve been some information that would have 

benefitted [Foster’s] case like well it was my boyfriend and she admitted 

she had sex with her boyfriend, or it would’ve been someone else which 

according to your theory would’ve been beneficial to your case cause it 

would’ve shown she was having sex with more and more people. Did you 

have any reason to find out which of those it was to the best of your 

recollection?

[TRIAL COUNSEL]: Well it was either the boyfriend or an unknown 

individual so how would you find out anything different[?] . . . .

* * *

[STATE]: So it sounds like there was nothing that would’ve been 

beneficial to your case as far as you can recall in either event, find out that 

it was the boyfriend or that it was someone else.

[TRIAL COUNSEL]: Well here’s the situation. You’ve got the identity of 

an unknown individual and perhaps it was the boyfriend so what do you 

have with that[?] Well the jury recognizes that we have a number of men 

having sex with this lady. The issue is whether it’s consensual or whether 

it was with a gun that was never found and that type of thing. So for 

example, well and hypothetically even assuming we could find the 

unknown individual[,] what would, what relevance or benefit, he could say 

something he could help us or hurt us, we don’t know. Or, so I, in trying to 

answer your question I believe at the time all, that this was coming into 

play it is a matter of trial strategy with the jury, it was beneficial for the 

jury to understand that she was sexually active and that she had sperm and 

she didn’t know who[se] it was.
10

(Post-Conviction Transcript pp. 34-36).2 We agree with Foster’s trial counsel that his 

failure to investigate was a reasonable trial strategy. As trial counsel stated at the postconviction court hearing, his defense was that S.J. was promiscuous and that, as a result, 

her intercourse with Foster was consensual. It is speculative to argue that proving the 

identity of the unknown person would have bolstered Foster’s defense because it is 

possible that the unknown person was S.J.’s boyfriend, as she testified, which to the 

contrary would have bolstered her story. Instead, maintaining the anonymity of the 

unknown third contributor allowed the jury to infer that, as trial counsel stated, S.J. was 

so sexually active that she did not know the identity of the third contributor. 

Accordingly, we conclude that Foster’s trial counsel did not deny him effective assistance 

by failing to investigate the identity of the unknown contributor. 

2. Failure to Object to Testimony

In a similar vein, Foster argues that his trial counsel provided ineffective 

assistance when he failed to object to S.J.’s testimony that “I don’t even know if this man 

is the father of my son.” (Trial Tr. p. 294). We conclude that, as above, this was a 

reasonable trial strategy. At the post-conviction hearing, Foster’s trial counsel explained

that “first of all, if I would’ve objected to it that would’ve highlighted the jury’s attention 

to that response. Secondly it, I don’t even know if this is the father of my child, well, that 

 

2 Throughout the remainder of this Opinion, we will refer to the trial transcript as “Trial Tr.” and the postconviction hearing transcript as “P-C Tr.”
11

certainly told the jury she’s out having sex with . . . many other men. . . . I mean, that sort 

of told me, hey I’m a loose woman[, which] went to our defense.” (P-C Tr. pp. 26-27). 

We have previously held that a decision not to draw the jury’s attention to 

undesirable testimony may be a reasonable trial strategy. See Stevens v. State, 770 

N.E.2d 739, 752 (Ind. 2002), cert. denied., 128 S.Ct. 2423 (2008). In addition, we find 

that S.J.’s testimony reasonably supported the defense’s strategy of demonstrating to the 

jury that S.J. had multiple sexual partners. Accordingly, we conclude that Foster’s 

counsel’s failure to object did not deny Foster the effective assistance of counsel.

3. Failure to Timely Move for a Judgment on the Evidence

Next, Foster claims that his trial counsel provided him with ineffective assistance 

because his counsel failed to make a timely motion for judgment on the evidence. Under 

Ind. Trial Rule 56, “[W]here all or some of the issues in a case tried before a jury or an 

advisory jury are not supported by sufficient evidence or a verdict thereon is clearly 

erroneous as contrary to the evidence because the evidence is insufficient to support it, 

the court shall withdraw such issues from the jury and enter judgment thereon or shall 

enter judgment thereon nothwithstanding a verdict.” Among other times, a party may 

move for such a judgment on the evidence “after another party carrying the burden of 

proof or of going forward with the evidence upon any one or more issues has completed 

presentation of his evidence thereon.” T.R.56(1),-(3). Foster’s counsel made such a 

motion at the sentencing hearing, but Foster claims that he should have made the motion 

at the close of the State’s case instead. Specifically, Foster argues that because evidence 
12

of a gun was never recovered and there was no DNA evidence of oral sex, the trial court 

would have granted a motion after the State presented its evidence. 

In support of his argument, Foster cites Williams v. State, 748 N.E.2d 887 (Ind. Ct. 

App. 2001), reh’g denied. In Williams, Williams’ trial counsel failed to move for a 

judgment on the evidence as to Williams’ charges and failed to challenge the sufficiency 

of the evidence to support Williams’ convictions on appeal. Id. at 891. Ultimately, we 

noted that the performance of Williams’ counsel fell below an objective standard of 

reasonableness as determined by prevailing professional norms because there was 

insufficient evidence to support the charges, and counsel was unable to provide a reason 

for his failure to raise the issue. Id. at 895.

However, we note several distinguishing factors between Williams and the case at 

hand. First, Williams’ counsel did not move for a judgment on the evidence at any point 

during Williams’ trial. Id. In the instant case, Foster’s counsel did move for a judgment 

on the evidence, although it was at sentencing rather than at the close of the State’s case. 

Also, contrary to Foster’s assertions, evidence of a gun and DNA evidence that Foster 

forced S.J. to perform oral sex were not necessary to support his charges. We have 

recognized that the uncorroborated testimony of a rape victim is sufficient evidence to 

sustain a rape conviction on appeal, and S.J. testified that Foster placed a gun on the dash 

board of her car and forced her to perform oral sex. Ellyson v. State, 603 N.E.2d 1369, 

1374 (Ind. Ct. App. 1992). Thus, it was not dispositive that the investigators never 

recovered a gun or DNA evidence that Foster forced S.J. to perform oral sex. As Foster 
13

does not otherwise dispute the sufficiency of the State’s evidence, we conclude that a 

motion for a judgment on the evidence would not have been successful at the end of the 

State’s case. Thus, Foster’s counsel did not provide ineffective assistance in refraining 

from moving for a judgment on the evidence at that point in time.

4. Failure to Object to Ex Parte Communication with the Jury

Finally, Foster argues that his trial counsel should have objected when the trial 

court engaged in ex parte communication with the jury without notifying counsel or 

Foster. After retiring to deliberate, the jury sent the trial court a question regarding S.J.’s 

testimony. The trial court responded: “please rely on your memories or your notes of the 

testimony . . . .” (Trial Tr. p. 499). The trial court later informed Foster’s counsel of the 

question and counsel indicated that he agreed with the response the trial court had given 

the jury. Now, however, Foster argues that the trial court’s failure to notify his counsel 

prior to communicating with the jury constituted a denial of counsel at a critical stage of 

the criminal proceedings and requires an automatic reversal. 

The circumstances in the instant case are analogous to those in Stephenson v. 

State, 742 N.E.2d 463 (Ind. 2001), cert. denied, 128 S.Ct. 1871 (2008). In Stephenson, 

the jury sent a note to the trial court after the jury had retired for deliberations. In the 

note, the jury stated: “We would like to listen to [defendant’s] tape 4810. Can we see the 

depositions of Brian M. & Dale Funk?” Id. at 492. In response, the trial court “advised 

the [b]ailiff to tell the jury that the court could not provide the items requested [by] 

them.” Id. The trial court later told both parties of the ex parte communication. Id. 
14

On appeal, the supreme court noted that Indiana case law recognizes state 

constitutional protection for a defendant’s right to be present when a jury makes a request 

for any additional guidance during deliberations. Id. The supreme court also noted the 

procedural guidelines for such a situation, specifying that the trial court should:

notify the parties so they may be present in court and informed of the 

court’s proposed response to the jury before the judge ever communicates 

with the jury. When this procedure is not followed, it is an ex parte 

communication and such communications between the judge and the jury 

without informing the defendant are forbidden. However, although an ex 

parte communication creates a presumption of error, such presumption is 

rebuttable and does not constitute per se grounds for reversal. When a trial 

judge responds to the jury’s request by denying it, any inference of 

prejudice is rebutted and any error deemed harmless.

Id. The supreme court ultimately held that even though the trial court had failed to notify 

the parties or counsel before responding to the jury, the error was harmless because the 

trial court merely denied the jury’s request. Id.

Here, almost exactly the same course of events occurred. The jury sent the trial 

court a question regarding the testimony, and the trial court refused to answer the 

question, merely telling the jury members to rely on their memories and notes. Foster’s 

trial counsel agreed that he would have recommended the same response if the trial court 

had notified him before it sent its note to the jury. In light of these factors and 

Stephenson, we conclude that the trial court’s communication was a harmless error, and 
15

Foster’s counsel therefore did not provide ineffective assistance in declining to object to 

the ex parte communication.3

B. Appellate Counsel

Next, Foster claims that he received ineffective assistance from his appellate

counsel because his counsel did not raise the issue of his rights under the Supreme Court 

of the United States’ decision in Blakely v. Washington, 594 U.S. 296 (2004), reh’g 

denied. In 1977, the Indiana Legislature adopted a sentencing scheme that included fixed 

term presumptive sentences, as well as upper and lower limits, for each Class of felonies. 

Anglemyer v. State, 868 N.E.2d 482, 485-86 (Ind. 2007), clarified on reh’g, 875 N.E.2d 

218 (Ind. 2007). When a trial court deviated from the fixed presumptive sentence, it was 

required to “(1) identify all significant mitigating and aggravating circumstances; (2) 

state the specific reason why each circumstance ha[d] been determined to be mitigating 

or aggravating; and (3) articulate the court’s evaluation and balancing of circumstances.” 

Id. at 486 (quoting Prickett v. State, 856 N.E.2d 1203, 1207 (Ind. 2006)).

In 2004, however, the Supreme Court decided Blakely, in which it held that “other 

than the fact of a prior conviction, any fact that increases the penalty for a crime beyond 

the statutory maximum sentence must be submitted to a jury and proven beyond a 

reasonable doubt.” Id. at 301. The Supreme Court further explained that the relevant 

“statutory maximum” for Blakely purposes is “not the maximum sentence [the trial court] 

 

3

Foster also alleges that even if the above actions did not amount to ineffective assistance of counsel 

individually, Foster was prejudiced by their cumulative effect. As we have not held that any of Foster’s 

counsel’s actions were prejudicial, we do not need to address this argument.
16

may impose after finding additional facts, but the maximum [it] may impose without any 

additional findings.” Id. at 303-04. 

In 2005, our supreme court clarified Blakely’s application to Indiana’s 

presumptive sentencing scheme in Smylie and held that Indiana’s scheme violated the 

Sixth Amendment of the United States Constitution because it mandated both a fixed 

term and permitted judicial discretion in finding aggravating or mitigating circumstances. 

Smylie v. State, 823 N.E.2d 679, 685 (Ind. 2005), cert. denied, 546 U.S. 976, 126 S.Ct. 

545, 163 L.E.2d 459 (2005). The Smiley court interpreted the “statutory maximum” for 

Blakely purposes as the statutory presumptive sentence. Id. at 684. Thus, any 

aggravating circumstances used to enhance a circumstance beyond the presumptive 

sentence had to be found by a jury beyond a reasonable doubt. Id. at 686.

 In response to Blakely and Smylie, the legislature revised Indiana’s sentencing 

statutes in 2005 to provide for advisory sentences rather than presumptive sentences. 

Anglemyer, 868 N.E.2d at 487-88. However, the prior presumptive scheme applies in 

this case, as Foster committed his offenses in 2000, prior to the legislative revisions. See

Gutermuth v. State, 868 N.E.2d 427, 431 n. 4 (Ind. 2007) (declaring that the sentencing 

statute in effect at the time a crime is committed governs the sentence for that crime). At 

the time of Foster’s offenses, the presumptive sentence for a Class A felony was thirty 

years, with not more than twenty years added for aggravating circumstances and not more 

than ten years subtracted for mitigating circumstances. I.C. § 35-50-2-4 (1998). The 

presumptive sentence for a Class B felony was ten years, with not more than ten years 
17

added for aggravating circumstances and not more than four years subtracted for 

mitigating circumstances. I.C. § 35-50-2-5 (1998). The maximum Foster could receive 

as an habitual offender was thirty years. I.C. § 35-50-2-8(e) (1998). As Foster was 

sentenced to 50 years for each of his Class A felonies, as well as twenty years for his 

Class B felony, he received the maximum sentence on each offense—well above the 

presumptive prescribed by statute.

Here, Foster’s appellate counsel filed an appellant’s brief in March of 2003, and 

this court issued its decision affirming Foster’s conviction and sentence on September 17, 

2003. On April 12, 2004, our supreme court denied transfer. Subsequently, on April 24, 

2004, the Supreme Court decided Blakely. See Blakely, 594 U.S. 296. Foster now 

argues that his case was not final on direct review when the Supreme Court decided 

Blakely and, as a result, his appellate counsel was ineffective for failing to raise a Blakely 

claim.

We analyze an ineffective assistance of appellate counsel claim similarly to an 

ineffective assistance of trial counsel claim. Bieghler v. State, 690 N.E.2d 188, 192 (Ind. 

1997), cert. denied, 119 S.Ct. 550 (1998). First, we require the defendant or petitioner to 

show that, in light of all of the circumstances, the identified acts or omissions of counsel 

were outside the wide range of professionally competent assistance. Id. at 193. Then, we 

require the defendant or petitioner to show adverse prejudice as a result of the deficient 

performance. Id. Our supreme court has recognized three basic categories of alleged 
18

ineffectiveness of appellate counsel: (1) denying access to an appeal; (2) failing to raise 

issues; and (3) failing to present issues competently. Id. at 193-94.

In a claim that appellate counsel provided ineffective assistance regarding the 

selection and presentation of issues, the defendant must overcome the strongest 

presumption of adequate assistance, and judicial scrutiny is highly deferential. BenYisrayl v. State, 738 N.E.2d 253, 2060-61 (Ind. 2000), cert. denied, 122 S.Ct. 1178 

(2002). A defendant may establish that his appellate counsel’s performance was deficient 

where counsel failed to present a significant and obvious issue for reasons that cannot be 

explained by any strategic decision. Id. In making this determination, the reviewing 

court considers the information available in the trial record or otherwise known to 

appellate counsel. Id. at 261. Only the precedent available to appellate counsel at the 

time of the direct appeal is relevant to our determination of whether counsel was 

ineffective. Donnegan v. State, 889 N.E.2d 886, 893 (Ind. Ct. App. 2008), trans. denied. 

This is because “[a]ppellate counsel cannot be held ineffective for failing to anticipate or 

effectuate a change in the existing law.” Id. 

We agree with Foster that his case was not final on direct review when the 

Supreme Court decided Blakely and that Blakely therefore applied to him retroactively. It 

has been firmly established that “a new rule for the conduct of criminal prosecutions is to 

be applied retroactively to all cases, state or federal, pending on direct review or not yet 

final, with no exception for cases in which the new rule constitutes a “clear break” with 

the past.” Smylie, 823 N.E.2d at 687. In Smylie, our supreme court agreed that Blakely 
19

constituted a new rule for the purposes of retroactivity. Id. Further, the United States

Supreme Court has held that a case is “final” when “a judgment of conviction has been 

rendered, the availability of appeal exhausted, and the time for a petition for certiorari 

elapsed or a petition for certiorari finally denied.” Griffith v. Kentucky, 479 U.S. 314, 

321 n.6 (1987). A petition for a writ of certiorari must be filed within 90 days after entry 

of judgment in a state court of last resort. United States Supreme Court Rule 13. As 

Foster’s time to petition for a writ of certiorari had not elapsed when the Supreme Court 

decided Blakely, his case was not final, and thus the Blakely holding applied to him 

retroactively.

Nevertheless, we have previously declined to find ineffective assistance of counsel 

for a counsel’s failure to raise a Blakely claim under such circumstances. In Donnegan, 

we issued our opinion on June 14, 2004, and the supreme court denied Donnegan’s 

petition to transfer on August 26, 2004, almost two months after the Blakely decision. 

Donnegan, 889 N.E.2d at 892. In his petition for post-conviction relief, Donnegan 

argued that his appellate counsel had been ineffective for failing to file an amended 

petition for transfer to our supreme court. Id. at 892. The post-conviction court denied 

his petition, and on appeal we affirmed the post-conviction court’s decision. Id. Our 

reasoning was that, “When Donnegan filed his petition to transfer, [] the general rule was 

that an issue could not be raised for the first time in a petition to transfer. Furthermore, in 

Carson v. State, 813 N.E.2d 1187, 1188-89 (Ind. Ct. App. 2004), decided August 20, 

2004, this court determined that Carson waived review of any argument under Blakely
20

where Carson raised the issue for the first time in his petition for rehearing.” Id. at 893. 

We also noted that it was not until the Smylie decision on March 9, 2005, that the 

supreme court clarified that it would apply a liberal approach in determining whether a 

defendant had preserved a Blakely claim for appeal. See id. As a result, we concluded 

that, because only the precedent available to counsel at the time of the direct appeal is 

relevant to our determination of whether counsel is ineffective, Donnegan’s counsel was 

not ineffective for failing to anticipate a change in the rules governing issues raised for 

the first time in a petition to transfer. Id. 

Likewise, we also note that it was not until November 9, 2005, that our supreme 

court specifically clarified in Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind. 2005), that 

any appellant who filed his or her initial brief prior to Smylie and failed to raise a Blakely 

claim, but nonetheless challenged his or her sentence in some form, could raise a Blakely 

claim by way of amendment, petition for rehearing, or petition for transfer. Kendall v. 

State, 886 N.E.2d 48, 54-55 (Ind. Ct. App. 2008), trans. denied. In Kendall, we cited this 

Kincaid decision as a reason for declining to find ineffective assistance of counsel when 

Kincaid’s counsel failed to raise a Blakely claim in a petition for transfer. Id. at 51. We 

also noted that “[p]articularly in the case of Blakely, great confusion reigned for some 

time following the opinion. The Smylie court recognized the confusion that ensued in 

Footnote 12, stating, in part: ‘That so many states are wrestling with the meaning of 

Blakely is further evidence of its unpredictability and a further indication that reasonable 

lawyers would not have known of the outcome.’” Id. at 52. 
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We find that the same reasoning applies in the instant case. Although Foster’s 

counsel had the opportunity to raise Blakely in a petition for writ of certiorari because 

Foster’s case was not yet final, he could not have been able to predict that it was possible 

to raise the issue for the first time in such a petition. Accordingly, we conclude that 

Foster’s appellate counsel did not provide him with ineffective assistance. 

III. Newly Discovered Evidence

Finally, Foster argues that the post-conviction court erred in denying his petition 

for post-conviction relief in light of his newly discovered evidence that he is not the 

father of S.J.’s baby. At the post-conviction hearing, Foster offered documents from an 

Illinois CHINS proceeding that contained a handwritten note stating that Foster was not 

the father of S.J.’s child. Foster attempted to admit the documents to impeach S.J.’s 

testimony that she was not sure whether Foster was the father of her baby, but the postconviction court denied his request.

Our supreme court has enunciated nine criteria for admission of newly-discovered 

evidence.

[N]ew evidence will mandate a new trial only when the defendant 

demonstrates that: (1) the evidence has been discovered since the trial; (2) 

it is material and relevant; (3) it is not cumulative; (4) it is not merely 

impeaching; (5) it is not privileged or incompetent; (6) due diligence was 

used to discover it in time for trial; (7) the evidence is worthy of credit; (8) 

it can be produced upon a retrial of the case; and (9) it will probably 

produce a different result at retrial.

Taylor v. State, 840 N.E.2d 324, 329-30 (Ind. 2006). To prevail upon appeal, the 

petitioner must demonstrate that the newly discovered evidence met all nine of these 
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criteria and that the trial court abused its discretion by failing to find so. Powell v. State, 

714 N.E.2d 624, 627 (Ind. 1999).

Foster does not present evidence with respect to any of these criteria. His only 

argument is that “S.J.’s testimony was so prejudicial as to deny Foster a fair trial. [These 

documents] should have been admitted at the post-conviction hearing as they demonstrate 

that her testimony was demonstrably false.” (Appellant’s Br. p. 13). This argument 

supports the post-conviction court’s conclusion that the evidence was “merely 

impeaching” and was therefore inappropriate under criteria number four. In addition, as 

the post-conviction court also concluded, this is a case where there was significant DNA 

evidence and eyewitness testimony supporting Foster’s convictions. The paternity of 

S.J.’s child does not mitigate that evidence and is not an element of Foster’s crimes, so it 

is not probable that the newly discovered evidence would produce a different result at 

trial. Accordingly, we conclude that the post-conviction court did not err in refusing to 

admit the CHINS documents as newly discovered evidence and did not err in denying 

Foster’s petition despite this evidence.

CONCLUSION

Based on the foregoing, we conclude that: (1) the post-conviction court did not err 

in finding that Foster received the effective assistance of counsel; and (2) the postconviction court did not err in denying Foster’s petition for post-conviction relief in light 

of newly discovered evidence. 

Affirmed. 
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NAJAM, J. and DARDEN, J. concur