Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 1 of 26

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

James C. Spencer

Madison, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ian McLean

Supervising Deputy Attorney 

General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Gary Lee Beason,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 7, 2018

Court of Appeals Case No.

48A02-1701-PC-112

Appeal from the Madison Circuit 

Court 

The Honorable Angela Warner 

Sims, Judge

Trial Court Cause No.

48C01-1506-PC-13

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 2 of 26

Case Summary and Issue

[1] Gary Lee Beason appeals the denial of his petition for post-conviction relief. 

He raises two issues for our review, which we consolidate and restate as

whether the post-conviction court erred in denying his petition for postconviction relief. Concluding the post-conviction court did not err in denying 

his petition, we affirm.

Facts and Procedural History

[2] We summarized the facts of this case in Beason’s direct appeal:

The facts most favorable to the judgment are that on April 18, 

1995, Karen Beason took four of her five children to a police 

substation in Anderson, Indiana. Karen was disoriented and 

confused and was admitted to the stress unit at Community 

Hospital. The Madison County Division of Family and Children 

took custody of the children in order to provide them with foster 

care.

Pursuant to the intake process of the Division, the children were 

asked questions regarding improper sexual contact. J.G. and 

K.G., two of Karen’s children, gave answers which indicated that 

they had been molested. Evidence provided from a subsequent 

investigation indicated that Karen’s brother-in-law, Gary Lee 

Beason (Beason), had molested the two girls several times. K.G. 

was born on July 5, 1984. J.G. was born on December 31, 1985.

In May 1995, Detective Kevin Smith was notified by Child 

Protective Services of the sexual abuse allegations regarding K.G. 

and J.G. Smith arranged for the children, who had been 

returned to Karen, to be removed from the home. Smith also 

arranged for a videotaped interview of K.G. and J.G. during 

which each girl repeated her claim of improper sexual contact by 

Beason. A medical examination of K.G. and J.G. confirmed 

that each girl had suffered penetrating injuries to her genitals.
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 3 of 26

Exhibits, Volume V at 63-64.

[3] On July 7, 1995, the State charged Beason with ten counts of child molesting as 

Class B felonies and one count of child molesting as a Class C felony. Beason’s 

jury trial was held from August 16, 1995 through August 22, 1995. The jury 

found Beason guilty as charged and the trial court sentenced Beason to an 

aggregate sentence of 208 years in the Indiana Department of Correction.

[4] A significant number of the facts pertinent to Beason’s petition for postconviction relief occurred prior to his trial. After being arrested and charged 

with child molesting, Beason exercised his constitutional right to a speedy trial

and the trial court scheduled his trial for August 10, 1995. On July 26, 1995, 

Beason’s appointed counsel, R.C. Dixon, requested a continuance due to a 

previously planned vacation from August 3 through August 14. The trial court 

granted the motion and scheduled a new trial date of August 16, 1995. On 

August 2, 1995, Dixon filed another motion for a continuance. The trial court 

did not grant the continuance and Dixon went on vacation.

[5] On August 14, 1995, the trial court held a hearing to discuss the issue of 

Beason’s speedy trial. The trial court had been informed that Mr. Dixon was 

“going to be back the 14th of August” and Beason was transported to court 

from jail for the hearing. Record of Proceedings, Volume 1 at 133. Mr. Dixon 

returned late that day and was not present at the hearing.

[6] The trial court held a pretrial hearing on August 15, 1995, at which Mr. Dixon 

was present and both he and Beason addressed the court.
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 4 of 26

[Beason]: [O]n August the 14th I stated that I wasn’t 

happy with Mr. Dixon at all. The same thing 

. . . he is not ready to go into trial and we are 

ready to pick a jury. I asked for a fast and 

speedy trial, I didn’t want to sit over at that 

jail for eight (8) months to a year waiting to 

go to trial.

[Trial Court]: Well what is your point?

[Beason]: I am not satisfied with the help that I have 

got from this lawyer at all. To go into the 

Jury trial right now is just hanging me. He is 

not ready to take and get my witnesses here. 

He has not heard my case, nothing. All he 

has got, the motions that I asked him to file I 

don’t believe have been filed. . . .

[Trial Court]: I don’t know, it seems to me we are wasting 

time Mr. Beason because I told you yesterday 

under Criminal Rule #4 when you asked for 

a speedy trial I have to try you within seventy 

(70) days. I don’t have any choice. I have 

got two (2) major cases. I told you I have got 

Kevin Carter and I have got State versus 

Weatherford and they are going to take the 

bigger part of two (2) maybe three (3) months 

to conclude. You asked for a speedy trial. 

You didn’t withdraw it. I have no option but 

to go to trial. So the problem is not Mr. 

Dixon, the problem is you. . . .

* * *

Mr. Dixon: Your Honor, I want to address the motion I 

filed for a continuance. As I advised the 

Court when I requested the motion for 

continuance that I was going to be out of 

town. Now I understood, I thought I 

understood you to say that it would be 

continued to . . . I was thinking the 15th of 

September.
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 5 of 26

[Trial Court]: Well I don’t know where you got that idea 

Mr. Dixon because I started Kevin Carter on 

September the 5th and under Criminal Rule 

#4 as you and I know and Mrs. Sauer knows 

and now Mr. Beason knows I have to try Mr. 

Beason within seventy (70) days or the 

charges are dismissed. . . . So you can’t have 

it both ways sir.

[Beason]: I am not asking for . . . 

[Trial Court]: If you want a speedy trial you are going to get 

a speedy trial.

[Beason]: I am asking for a lawyer that is going to be 

working for me.

[Trial Court]: Well fine, your objection is noted. Your 

motion for continuance is denied. I have no 

choice Mr. Dixon. If I get into Kevin Carter 

then I am in the middle of November or 

December. I have no choice. It was Mr. 

Beason’s obligation to withdraw his motion 

for a speedy trial and he didn’t do it and we 

are going to trial today. . . . I will give you all 

the time in the world to talk. You want to 

see these tapes, I have already told you we 

will do it over the lunch hour. I had him here 

yesterday, but you apparently got back late. . 

. .

[Beason]: And I didn’t get a chance to talk to him 

yesterday.

[Trial Court]: The problem was caused by Mr. Beason’s 

demand for a speedy trial not by me and not 

by Mr. Dixon.

[Beason]: I just don’t want to sit over there for a year.
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 6 of 26

[Trial Court]: Fine, I don’t have any problem with that sir, 

it is a right that you have that we are going to 

take care of you. Anything else gentlemen?

Mr. Dixon: I guess I just want to make sure the record 

reflects your Honor that I have visited Mr. 

Beason in jail three (3) times . . . 

[Beason]: Twice.

Mr. Dixon: Before I left town. He has steadfastly told me 

that he had evidence that would prove his 

innocence. To date I haven’t received 

anything from him, not even this witness list 

that he keeps mentioning. So I am dealing 

with an uncooperative defendant.

[Trial Court]: I prefer not to get involved in that . . . .

[Beason]: Your Honor there is a conflict between Mr. 

Dixon and myself. There has been to day 

one.

[Trial Court]: Mr. Beason?

[Beason]: Yes sir?

[Trial Court]: Our problem is caused from your insistence 

to have a speedy trial.

[Beason]: I just don’t want to sit there for a year your

Honor.

[Trial Court]: I tried to explain to you that I don’t have any 

room to maneuver here. I am not going to 

have these charges dismissed by the Supreme 

Court because I didn’t bring you to trial 

within seventy (70) days. If we don’t do it 

now it is going to be November or December 

before I have the time. So we are going to 

trial this morning and that is it. . . .
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 7 of 26

* * *

[Trial Court]: Okay, so that is your discovery gentlemen. I 

will make time for you over the noon hour or 

later this afternoon if you wish to . . . you 

know it is obvious to all of us and perhaps 

you need to be reminded that the State has to 

go first. You will have plenty of time to put 

your case together. I will even give you a 

continuance in the middle of trial if you wish, 

an adjournment for a day or so, if that will be 

helpful. I intend to be very cooperative with 

you gentlemen. I realize the time pressure 

you are under. . . . I realize that everything 

cannot go according to plan but it is . . . this 

is brought about by Mr. Beason requesting a 

speedy trial which I am obligated to honor.

[Beason]: I just have a problem sitting here in jail 

waiting to go to trial. That is the reason I 

asked for the fast and speedy trial.

[Trial Court]: Yes sir and your concerns have been met and 

you are getting a speedy trial.

Id. at 110-17. The parties then conducted voir dire and selected a jury before 

reconvening on the record.

[Trial Court]: Alright, is there anything else now Mr. Dixon 

we can take up this evening before we 

adjourn?

Mr. Dixon: Yes, your Honor. We would like for the 

record to reflect your Honor that Mr. Beason 

was brought to Court yesterday without 

benefit of counsel, without counsel even 

being in the State for that matter and that Mr. 

Beason tells me that he was not aware that 

yesterday that he should ask that he withdraw 

his speedy trial request and that that request 
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 8 of 26

was indeed made today. And your Honor we 

want the record to reflect that Mr. Beason 

still wants to withdraw his speedy trial 

request.

[Trial Court]: Well we were told you were going to be back 

the 14th of August so I added [Beason] to the 

list so he could talk to you about that very 

issue . . . so I mean no disrespect to you Mr. 

Dixon because there was nothing on the 

calendar. I just had him brought over in the 

event you were here. . . . You weren’t here 

and that is fine. But the . . . okay he wanted 

to withdraw his speedy trial and he never 

mentioned a thing about it sir. He never said 

a thing. I guess the record should reflect I 

was here and Mrs. Sauer was here and he 

didn’t say a thing about it did he Mrs. Sauer?

[State]: No sir, and if I remember correctly your 

Honor went to great length to discuss with 

Mr. Beason that he understood that the 

reason we were going to trial tomorrow was 

his choice because he had requested a speedy 

trial and any of his other problems were 

related to the speedy trial request just as we 

did this morning. It was very much the same 

thing as this morning and I think your Honor 

made it quite clear that there was certainly an 

option for Mr. Beason at any time to say that 

he didn’t want to go to trial that he wanted to 

get better prepared and he chose that he 

wanted to have a trial today.

[Trial Court]: He never mentioned once that he was 

withdrawing his request for speedy trial Mr. 

Dixon and I am sorry if there is any 

confusion but the confusion is not mine. It is 

no [sic] of my making and I have no choice 

because of these other lengthy, intense, high 

profile cases that are going to take into 

probably November. I had no choice. He 
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 9 of 26

demanded a speedy trial so today was the day 

we have to go. And so that is it. We got our 

Jury. . . .

* * *

Mr. Dixon: Your Honor I have . . . well that brings up 

another matter your Honor?

[Trial Court]: Yes sir?

Mr. Dixon: As you know I have not had time to really 

confer with my client.

[Trial Court]: Why haven’t you? . . . I know you talked to 

him from 9:00 o’clock till a quarter till eleven 

this morning almost non-stop . . . . [Y]ou are 

trying to leave the impression that I have not 

allowed you the time to talk with your client. 

That is certainly not true. I am not sure what 

your point is.

Mr. Dixon: I am not trying. I am definitely leaving an 

impression your Honor that I need more time 

in order to prepare for this case.

[Trial Court]: I understand that.

Mr. Dixon: I don’t . . . .

[Trial Court]: We have been down that road . . . .

Id. at 133-35, 139-40. Following this colloquy, the parties entered into a 

discussion concerning discovery.

Mr. Dixon: In response to the State’s allegations your 

Honor, we would say it again, as far as 

discovery is concerned we received discovery 

this morning. Certainly it is not adequate 
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 10 of 26

time for us to go over anything with my 

client.

[State]: Discovery was provided over a week ago and 

unfortunately Mr. Dixon was out of town.

* * *

Mr. Dixon: The only thing we had was the information.

[State]: I discussed with Mr. Dixon everything that 

there was and I further told him that there 

was [sic] medical reports that I would be 

providing and those were provided more than 

a week ago.

[Trial Court]: And even . . .

Mr. Dixon: In my absence.

[Trial Court]: And even your client this morning was 

complaining because he didn’t have copies of 

statements but there aren’t any statements. 

The statements are videos.

[Beason]: But isn’t the doctor’s statement still 

considered a statement? I mean . . .

[Trial Court]: Read my lips. I am George Bush. She gave 

it to your lawyer a week ago.

[Beason]: Oh.

[State]: Unfortunately Mr. Dixon was on vacation 

which I can’t . . . I am not saying that Mr. 

Dixon shouldn’t have gone on vacation, he 

had a vacation planned and that is fine, I am 

just saying that I just provided those[.]

[Trial Court]: My instincts tell me that he probably took 

those with him. In any event . . . 
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 11 of 26

Mr. Dixon: Your Honor, let me clarify your instincts.

[Trial Court]: Yes sir.

Mr. Dixon: I have been out of town since the 3rd, 

discovery was placed in . . . file marked on 

the 7th. I did not get any discovery until this 

morning.

[Trial Court]: Okay, great. The lady said she gave them to 

you more than a week ago, that is true, she 

did.

Mr. Dixon: Discovery when I am not available to receive 

it is not giving it to me.

[Trial Court]: Well I am sorry Mr. Dixon I would . . . next 

time I will make arrangements to have them 

shipped by Federal Express, just tell us where 

to send them. I will be happy to cooperate in 

anyway [sic] Mr. Dixon.

Mr. Dixon: Well next time doesn’t help [Beason] any this 

time.

[Trial Court]: Alright.

* * *

Mr. Dixon: [Y]our Honor, as we have pointed out on 

several times . . ., we have been operating 

with a severe time disadvantage here. We 

did ask for a continuance on this trial and we 

did ask for a . . . 

[Trial Court]: You never asked for a continuance of the 

trial, you only asked for a continuance after I 

had the Jury selected.

[State]: No he asked for a continuance of the trial last 

week.
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 12 of 26

Mr. Dixon: Your Honor, I asked for a continuance before 

I left town.

[Trial Court]: Well that is right, that is right, but your client 

didn’t.and [sic] I made it perfectly clear I am 

in a bind. If I grant the continuance I can’t 

try it till November or December. And I told 

you myself, get your client to sign it and he 

didn’t. Had that been done I would have 

granted your continuance. But I can’t have it 

both ways. I can’t have one of you saying I 

want to go to trial and the other one saying I 

want a continuance because I will lose. It is 

what the client wants that the Court looks at. 

If he had signed that motion for continuance 

I would have granted it. But he didn’t. I am 

stuck.

Id. at 143-46, 180-81. Beason’s jury trial commenced the next day and, as 

noted, the jury found Beason guilty as charged and he was sentenced to 208 

years in the Department of Correction. The trial court appointed William 

McCarty as Beason’s appellate counsel.

[7] Beason’s direct appeal raised four issues: 1) whether the prosecutor committed 

prosecutorial misconduct; 2) whether Beason received ineffective assistance of 

trial counsel; 3) whether the trial court abused its discretion in finding 

aggravating sentencing factors; and 4) whether Beason’s sentence was 

unreasonable. See Exhibits, Vol. V at 11, 63. With respect to Beason’s 

argument concerning the effectiveness of his counsel, Beason argued his trial 

counsel was ineffective for failing to object to the State’s closing argument. We 

affirmed Beason’s convictions and sentence. Beason v. State, No. 48A02-9512-
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 13 of 26

CR-775, slip op. at 14 (Ind. Ct. App. Feb. 27, 1997); see also Exhibits, Vol. V at 

75.1

[8] In April of 2001, Beason, pro se, filed his petition for post-conviction relief and 

a public defender was appointed. In May of 2005, the public defender’s office

withdrew its appearance from the case. In June of 2012, Beason withdrew his 

petition without prejudice. On June 15, 2015, Beason, with the benefit of 

counsel, filed his second petition for post-conviction relief. In his petition for 

post-conviction relief, Beason alleged 1) he was denied effective assistance of 

trial counsel; 2) he was denied effective assistance of appellate counsel; 3) he 

was denied due process in violation of the Fourteenth Amendment to the U.S. 

Constitution; and 4) he was subjected to a critical hearing the day before his 

trial without the benefit of counsel in violation of the Fifth, Sixth, and 

Fourteenth Amendments to the U.S. Constitution and Article 1, Sections 12 

and 13 of the Indiana Constitution. The post-conviction court held an 

evidentiary hearing on March 28, 2016, at which both Mr. Dixon and Mr. 

McCarty testified. Mr. Dixon testified as follows:

[Counsel for Petitioner]: Were you prepared to go to trial?

[Mr. Dixon]: Based on . . . the transcript, actually 

no.

* * *

 

1 On Beason’s ineffectiveness claim, this court did not address trial counsel’s performance but concluded that 

Beason suffered no prejudiced from the prosecution’s closing argument. Beason, No. 48A02-9512-CR-775, 

slip op. at 11; see also Exhibits, Vol. V at 72.
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 14 of 26

[Counsel for Petitioner]: Do you think that . . . Judge Spencer 

was . . . impartial when it came to 

child molest cases?

* * *

[Mr. Dixon]: I did not think that he was impartial in 

general, so.

* * *

[Counsel for Petitioner]: [B]ut you do admit, Mr. Dixon, that 

you were not prepared for this trial? Is 

that correct?

[Mr. Dixon]: I coulda used more time for sure.

Transcript, Volume I at 30-31, 43. And Mr. McCarty testified:

[Counsel for Petitioner]: You raised the issue of ineffective 

assistance of counsel on appeal. Uh, is 

there any reason what – or did you 

consider . . . evading that issue and 

waiting for post-conviction relief?

[Mr. McCarty]: I did not. I did not.

[Counsel for Petitioner]: [D]o you recall whether or not that 

was an issue of some controversy even 

back in nineteen (19) ninety-six (96)?

[Mr. McCarty]: About when those issues should be 

raised? . . . [Y]es. There was some 

debate about that, but I, I felt a 

responsibility to raise the issue.

* * *
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 15 of 26

[Counsel for Petitioner]: Even if the issue of ineffective 

[assistance of trial counsel] is an issue 

that you raised. You don’t believe that 

you avoided other . . . issues as far as 

the ineffectiveness of trial counsel?

[Mr. McCarty]: No.

* * *

[Counsel for Petitioner]: [W]ith the . . . argument of ineffective 

assistance of trial counsel . . . do you 

agree that, uh, you, you didn’t raise 

any issue with respect to lack of 

preparation?

[Mr. McCarty]: I did not raise that issue of lack of 

preparation.

[Counsel for Petitioner]: Or the fact that trial counsel had no 

opportunity to review, uh, discovery 

prior to trial?

[Mr. McCarty]: Uh, that was not raised in the appeal.

* * *

[State]: When you write an appeal, can you 

raise every issue that you think might 

be there?

[Mr. McCarty]: [P]erhaps I should explain my 

approach on appeals. Which was not 

to throw everything up against the wall 

and to see what stuck, I mean, this was

a, a general approach . . . . But, but 

the general approach was to try to 

target the most significant . . . events of 

a trial that could be challenged, and 

narrow the focus and, and, and get the 

Appellate Court to focus on three (3) 

to five (5), issues that I thought were 
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 16 of 26

paramount. . . . I felt over time, that 

the best success I had was in narrowing 

the focus to the . . . certain – a handful 

of issues, and . . . having the Appellate 

Court focus on that.

* * *

[State]: Did you present to the Appellate Court 

what you thought had the best [sic] of 

succeeding for Mr. Beason?

[Mr. McCarty]: Yes, absolutely, I did.

[State]: And does your mind change on that 

any today?

[Mr. McCarty]: No. Uh, I, I – in reviewing all of this, 

uh, do I second guess myself? Do we 

all do that? Yes, but, but no. I, I feel 

that the issues that were the best issues 

were raised at the Appellate Court. I 

do.

Id. at 51-52, 56, 58, 62, 68-69.

[9] On December 16, 2016, the post-conviction court issued its findings of fact and 

conclusions thereon denying Beason relief. The post-conviction court 

determined Beason’s allegation of ineffective assistance of trial counsel was res 

judicata and, even if it was not res judicata, Beason failed to demonstrate 

deficient performance by his trial counsel. With respect to his claim of 

ineffective assistance of appellate counsel, the post-conviction court determined 

counsel’s performance was within the wide range of professional competence. 

Finally, the post-conviction court determined Beason’s claims were barred by 
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 17 of 26

the doctrine of laches. Beason now appeals. Additional facts will be added as 

necessary.

Discussion and Decision

I. Standard of Review

[10] An Indiana appellate court will not reverse a post-conviction court’s denial of 

post-conviction relief unless the evidence is without conflict and leads only one 

conclusion, and the post-conviction court reached the opposite conclusion. 

McCary v. State, 761 N.E.2d 389, 391-92 (Ind. 2002). The post-conviction 

petitioner bears the burden of proof to convince the appellate court that the 

evidence as a whole leads unerringly and unmistakably to a decision opposite 

that reached by the post-conviction court. Id. at 391; see Ind. Post-Conviction 

Rule 1(5) (“[T]he petitioner has the burden of establishing his grounds for relief 

by a preponderance of the evidence.”). We review the post-conviction court’s 

factual findings for clear error, but we owe no deference to its conclusions of 

law. Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013).

[11] Post-conviction proceedings provide a petitioner with the “opportunity to raise 

issues that were not known at the time of the original trial or that were not 

available on direct appeal.” Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 

2000), cert. denied 534 U.S. 1164 (2002). As a general rule, if an issue was 

known and available but not presented on direct appeal, the issue is waived.

Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839 

(2002). A petitioner claiming ineffective assistance of trial counsel may choose 
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 18 of 26

to bring such a claim on direct appeal or in post-conviction proceedings. Jewell 

v. State, 887 N.E.2d 939, 941 (Ind. 2008). The appellate resolution of 

petitioner’s ineffectiveness claim is res judicata if raised on direct appeal and 

decided adversely. Id. In such a case, however, a petitioner may still allege 

ineffective assistance of appellate counsel in bringing a claim of ineffective 

assistance of trial counsel on direct appeal. McCary, 761 N.E.2d at 392-93.

II. Post-Conviction Relief

A. Ineffective Assistance of Appellate Counsel

[12] Beason first contends he received ineffective assistance of appellate counsel on 

direct appeal. Specifically, Beason alleges appellate counsel was ineffective for 

“raising the issue of ineffective assistance of trial counsel on direct appeal and 

then raising it incompletely.” Brief of Appellant at 13.

[13] The standard of review for a claim of ineffective assistance of appellate counsel 

is identical to that of ineffective assistance of trial counsel. Lowery v. State, 640 

N.E.2d 1031, 1048 (Ind. 1994), cert. denied, 516 U.S. 992 (1995). Beason must 

first demonstrate appellate counsel performed deficiently. Id. In this regard, 

Beason must overcome the strongest presumption that appellate counsel 

delivered adequate assistance and we are highly deferential to counsel’s 

selection and presentation of the issues. Ben-Yisrayl, 738 N.E.2d at 260-61. 

Second, Beason must show appellate counsel’s performance prejudiced him. 

Id. at 260. To establish the element of prejudice, Beason must show that there 

is a reasonable probability that, but for his appellate counsel’s unprofessional 
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 19 of 26

errors, the result of the proceeding would have been different. Id. A reasonable 

probability is a probability sufficient to undermine confidence in the outcome. 

Id.

[14] Appellate counsel’s determination regarding the selection of issues and what 

arguments to raise is one of the most important strategic decisions made by 

counsel in that role. Id. at 261. Counsel must make difficult judgment calls in 

narrowing a broad range of possible claims to a select few that are thought to 

have the best opportunity for success. Woods v. State, 701 N.E.2d 1208, 1221 

(Ind. 1998), cert. denied, 528 U.S. 861 (1999). In narrowing the issues, 

potentially valid claims may be eliminated by strategic judgment so that the 

perceived strongest contentions are not diluted. Id. In assessing counsel’s 

performance and the strategic decision to include or exclude certain issues, this 

court defers to appellate counsel’s judgment unless the decision was 

“unquestionably unreasonable.” Ben-Yisrayl, 738 N.E.2d at 261. Therefore, to 

prevail on a claim of ineffective assistance of appellate counsel, Beason must 

demonstrate that, based on information known to appellate counsel from the 

trial record, appellate counsel failed to present significant and obvious issues

that cannot be explained by any reasonable strategy. Id.

[15] Finally, Beason effectively faces a compound burden in arguing appellate 

counsel was ineffective in raising the argument of ineffective assistance of trial 

counsel on direct appeal. To satisfy that compound burden, Beason must 

establish deficient performance and prejudice separately as to both appellate 

counsel and trial counsel. Id. at 261-62.
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 20 of 26

[16] Beason’s main complaint regarding the effectiveness of appellate counsel is the

failure to raise the issue of trial counsel’s lack of preparation for trial. Beason 

alleges trial counsel’s lack of preparation manifested itself in numerous 

individual incidents of deficient performance and that appellate counsel’s 

performance was deficient in failing to completely raise this issue. However, 

Beason’s brief offers no discussion on how the alleged errors on behalf of trial 

or appellate counsel establish prejudice or a reasonable probability the result of 

the proceedings would have been different. Beason’s failure to address the issue 

of prejudice permits an uncomplicated disposition of the case notwithstanding 

the nature of the proceedings.

[17] Moreover, we are not persuaded that appellate counsel’s selection and 

presentation of the issues in this case was “unquestionably unreasonable.” Id.

at 261. At the post-conviction hearing, appellate counsel stated his belief that 

he presented the issues on appeal that had the best chance of success for Beason 

and he did not exclude any other valid issues of ineffective assistance of trial 

counsel. See Tr., Vol. I at 56, 68. Appellate counsel’s stated strategy on appeal 

was not to “throw everything up against the wall and to see what stuck . . . [his] 

general approach was to try to target the most significant . . . flaws and most 

significant . . . events of a trial that could be challenged . . . .” Id. at 62.

[18] With respect to the incidents which Beason alleges appellate counsel should 

have also raised in his ineffective assistance of trial counsel claim, they are 

either meritless, not based in fact, or require more evidence to determine their 

truth. We address each of Beason’s concerns in turn.
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 21 of 26

[19] Beason argues appellate counsel was ineffective for failing to address trial 

counsel’s cross-examination of J.G. and K.G. Beason suggests trial counsel did 

not review videotapes of J.G.’s and K.G.’s prior statements to police until after 

they testified. Beason suggests the videotapes contain favorable impeachment 

evidence. However, the alleged videotapes of J.G. and K.G.’s prior statements 

were not entered into evidence and are not in the record before us. Thus,

appellate counsel’s performance was not deficient in failing to raise this 

argument. See Seeley v. State, 782 N.E.2d 1052, 1061 (Ind. Ct. App. 2003)

(holding appellate counsel’s performance was not deficient in failing to search 

for issues outside the record), trans. denied, cert. denied, 540 U.S. 1020 (2003). 

Moreover, the trial transcript strongly suggests trial counsel reviewed the

videotapes before K.G. and J.G.’s testimony and appellate counsel was not 

ineffective in failing to raise this issue. See Record of Proceedings, Vol. 1 at 

177, 183-84 (trial court permitting trial counsel to view the tapes at lunch and 

arranging equipment and room for them to work in); Record of Proceedings, 

Vol. 4 at 802-03 (trial court and the State confirming trial counsel saw the 

videotapes).2

[20] Beason next contends that appellate counsel should have included the issue of 

trial counsel’s failure to investigate his claims that J.G. and K.G. had made 

prior allegations of molestation in the past by “two other persons connected 

 

2 We further note, because the videotapes are not in the record before us, the only account of their content is 

Beason’s testimony at the post-conviction hearing, which the post-conviction court was not required to 

believe. Daugherity v. State, 547 N.E.2d 1116, 1118 (Ind. Ct. App. 1989).
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 22 of 26

with their mother.” Br. of Appellant at 19. He further suggests a 1992 medical 

examination contradicts the 1995 medical examination performed on J.G. and 

K.G. that concluded they suffered hymeneal injury. The results of the alleged 

medical examinations in 1992 were inconclusive. See Record of Proceedings, 

Vol. 4 at 1024. But again, no such medical report exists in the record before us 

and we decline to find appellate counsel ineffective for failing to search outside 

the record. Moreover, it appears the medical report to which Beason refers was 

conducted in response to allegations by J.G. and K.G. that he had molested 

them in 1992. Id. at 1014-24. Nonetheless, the evidentiary value of such a 

report is low. “Inconclusive” results in a medical examination would not 

demonstrate, as Beason appears to suggest, that J.G. and K.G. were lying or 

being untruthful in 1995. Nor would it show their underlying allegations 

against Beason in 1992 were demonstratively false. Appellate counsel was 

therefore not deficient in failing to include this issue on direct appeal.

[21] Beason also contends appellate counsel performed deficiently in failing to 

address trial counsel’s failure to object to Final Jury Instruction No. 3. This 

instruction reads, “A conviction may be sustained by the uncorroborated 

testimony of a single witness.” Exhibits, Vol. 1 at 61. In 2003, our supreme 

court held the giving of this jury instruction is error after having been upheld 

since at least 1980. Ludy v. State, 784 N.E.2d 459, 460 (Ind. 2003). Beason’s 

trial was conducted in 1995 and we have held trial counsel is not ineffective for 

failing to anticipate changes in the law. Overstreet v. State, 877 N.E.2d 144, 161-

62 (Ind. 2007) (holding “counsel’s representation cannot be deemed to have 
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 23 of 26

fallen below an objective standard of reasonableness for failing to anticipate a 

change in the law”), cert. denied, 555 U.S. 972 (2008). Accordingly, because 

appellate counsel is unlikely to have succeeded on this issue if it were raised, we 

decline to find appellate counsel’s exclusion of this issue constituted deficient 

performance.3

[22] Finally, we address Beason’s contention that trial counsel was unprepared for 

trial. A significant portion of Beason’s brief addresses trial counsel’s lack of 

preparation for trial and a large portion of the transcript from the hearing the 

day prior to trial is quoted above in the “Facts and Procedural History.” From 

the transcript, it is clear trial counsel intended to leave the impression he needed 

more time to prepare for trial and we agree with Beason in this regard.

[23] However, as repeatedly noted by the trial court, it was required to conduct 

Beason’s trial because he never withdrew his speedy trial request. The trial 

court explained at great length that the court’s calendar was congested and it 

would be several months, and outside of the seventy-day period for Indiana 

 

3 Beason also alleges trial counsel “failed to object to State’s evidence of uncharged crimes committed by 

Beason.” Br. of Appellant at 19. This argument is unsupported by any citation to relevant case law, statute,

or other authority and we accordingly find it to be waived. See Smith v. State, 822 N.E.2d 193, 202–03 (Ind.

Ct. App. 2005) (“[A] party waives any issue raised on appeal where the party fails to develop a cogent 

argument or provide adequate citation to authority and portions of the record.”), trans. denied. Additionally, 

Beason takes issue with being present in the trial court on August 14, two days before his trial, without 

counsel. The trial court clarified to trial counsel the court was told he would be back from vacation on 

August 14 and the trial court had Beason brought to court in case trial counsel arrived. See Record of 

Proceedings, Vol. 1 at 133-35. The transcript from August 14 is not included in the record, but from what we 

can gather, the trial court simply tried to impress upon Beason they were going to trial unless he withdrew his 

speedy trial request. Beason did not do so until the jury was impaneled the next day and now complains of 

his trial counsel’s preparation.
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 24 of 26

Rule of Criminal Procedure 4, before Beason would be tried if the trial were to 

be continued. See Ind. Crim. Rule 4(B)(1); see also Jackson v. State, 663 N.E.2d 

766, 770 (Ind. 1996) (discharging a defendant for failing to bring him to trial 

within seventy days of his motion for a speedy trial).

[24] Moreover, Beason never attempted to withdraw his request for a speedy trial 

until after a jury had been selected. See Record of Proceedings, Vol. 1 at 135. 

At that point, the trial court refused to grant a continuance. Beason was fully 

aware that trial counsel went on vacation prior to trial and would return shortly 

before the trial’s scheduled commencement, yet Beason still adamantly 

informed the trial court he wanted to go to trial and did not want to sit in jail 

awaiting a trial. Given the severity of the charges, Beason’s decision was illadvised.

[25] But, as the trial court stated, Beason cannot have it both ways. He demanded a 

speedy trial with full knowledge that his trial counsel would be absent the week 

before trial. Beason cannot place his trial counsel between a rock and a hard 

place and then complain following an adverse result. The trial court made it 

clear to Beason and trial counsel he would have granted a continuance had 

Beason signed the motion for a continuance. Beason never did and never 

requested to withdraw his speedy trial request until after a jury had been 

impaneled.

[26] In sum, while Beason has brought numerous issues to our attention that he 

alleges constitute deficient performance on the part of appellate and trial 
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 25 of 26

counsel, many of the issues are meritless, brought about by his demand for a 

speedy trial, or require more evidence in the record before the post-conviction 

court and this court on appeal. This court defers to appellate counsel’s strategic 

judgment on issue selection and presentation unless it was “unquestionably 

unreasonable” and we cannot say appellate counsel performed deficiently on 

the issue of ineffective assistance of trial counsel. Ben-Yisrayl, 738 N.E.2d at 

261.

B. Fundamental Error

[27] Beason also claims the post-conviction court erred in denying his claim for 

relief alleging fundamental error. All of the issues which Beason claims amount 

to fundamental error were known and available at the time of direct appeal and 

are therefore waived. Timberlake, 753 N.E.2d at 597. Additionally, our 

supreme court has concluded freestanding claims of fundamental error may not 

be brought in a post-conviction relief proceeding. Sanders v. State, 765 N.E.2d 

591, 592 (Ind. 2002). The post-conviction court did not err in denying Beason’s 

claim of fundamental error.

Conclusion4

 

4 Because of our resolution of the issue of ineffective assistance of appellate counsel, we do not address 

Beason’s challenge to the post-conviction court’s judgment that Beason’s petition was barred by the doctrine 

of laches.
Court of Appeals of Indiana | Memorandum Decision 48A02-1701-PC-112 | May 7, 2018 Page 26 of 26

[28] The post-conviction court did not err in denying Beason’s petition for postconviction relief. Accordingly, we affirm the post-conviction court’s judgment.

[29] Affirmed.

Crone, J., and Bradford, J., concur.