Court of Appeals of Indiana | Memorandum Decision 20A03-1512-PC-2304 | January 13, 2017 Page 1 of 13

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.

APPELLANT PRO SE

Samuel L. Wait

Michigan City, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Angela N. Sanchez

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Samuel L. Wait,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

January 13, 2017

Court of Appeals Case No.

20A03-1512-PC-2304

Appeal from the Elkhart Circuit

Court

The Honorable Terry C. 

Shewmaker, Judge

Trial Court Cause No.

20C01-1003-PC-28

Baker, Judge.
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[1] Samuel Wait appeals the denial of his petition for post-conviction relief from

his Child Molesting conviction, arguing that the post-conviction court 

erroneously determined that he did not receive the ineffective assistance of trial 

and appellate counsel. He also argues that he did not receive the effective 

assistance of post-conviction relief counsel. Finding no error, we affirm.

Facts

[2] The underlying facts are as follows:

In March 2006, Heather [Statts] began a relationship with Wait. 

At that time, she was living in Ohio with S.S., her seven-year-old 

daughter. In June 2006, [Statts] and S.S. relocated to live with 

Wait in his camper. In late August 2006, they moved to a house 

in New Paris.

After they moved to New Paris, Wait committed multiple acts of 

sexual abuse against S.S. He penetrated her vagina with his 

finger and his penis, penetrated her anus with his penis, and, on a 

separate day, inserted his penis into her mouth. On another day, 

Wait forced S.S. to take her clothes off and “hump” his penis. 

S.S. saw a tattoo on Wait’s penis of a red and green snake, the 

existence of which was stipulated to by the parties. Wait told 

S.S. that if she ever told anyone “that he touched her in her 

naughty places that he would hurt her.” 

Statts’s relationship with Wait deteriorated, and Statts and S.S. 

moved out of the New Paris home and returned to Ohio at the 

end of October 2006. But Statts and Wait resumed their 

relationship the following month, at which time Statts and S.S. 

returned to Indiana to live with Wait in Goshen. Approximately 

two months thereafter, S.S. told a friend’s mother about the 

abuse, and the mother reported it to the authorities.
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[3] Wait v. State, No. 20A03-0904-CR-135, 2009 WL 3199127, at *1 (Ind. Ct. App. 

Oct. 7, 2009). On August 29, 2007, the State charged Wait with four counts of 

class A felony child molesting, and on December 31, 2008, the State alleged 

Wait to be an habitual offender and a repeat sexual offender. On January 13, 

2009, Wait’s jury trial took place. During the trial, the State orally moved to 

amend the dates in the charging information; the trial court denied the motion. 

The jury found Wait guilty as charged and Wait later admitted to being an

habitual offender and repeat sexual offender.

[4] On February 12, 2009, the trial court imposed forty-year sentences on each of 

the four convictions, with three to be served concurrently and one to be served 

consecutively. The trial court enhanced the sentences by thirty years in light of 

Wait’s status as an habitual offender, for an aggregate sentence of 110 years.

[5] Wait appealed, challenging the sufficiency of the evidence to support multiple 

convictions of child molesting and the imposition of consecutive sentences. 

This Court affirmed Wait’s convictions and sentence. Id. Wait then filed a 

petition for post-conviction relief. The post-conviction court denied Wait’s 

petition. Wait now appeals.

Discussion and Decision 

[6] Wait raises three issues on appeal: (1) that he received the ineffective assistance 

of counsel at trial; (2) that he received the ineffective assistance of counsel 

during his appeal; and (3) that he received the ineffective assistance of counsel 

during his post-conviction relief proceedings.
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I. Standard of Review

[7] 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 postconviction 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).

II. Assistance of Trial Counsel

[8] Wait argues that he was denied the effective assistance of trial counsel because 

his trial counsel did not pursue an alibi defense, allowed Wait to admit to being 
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an habitual offender and a repeat sex offender, and did not object to the 

prosecutor’s vouching statements during closing argument.1

[9] A claim of ineffective assistance of trial counsel requires a showing that: (1) 

counsel’s performance was deficient by falling below an objective standard of 

reasonableness based on prevailing professional norms; and (2) counsel’s 

performance prejudiced the defendant such that “‘there is a reasonable 

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

proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444 

(Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A 

reasonable probability arises when there is a ‘probability sufficient to undermine 

confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 

2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two 

prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind. 

Ct. App. 2012). However, “[i]f we can easily dismiss an ineffective assistance 

claim based upon the prejudice prong, we may do so without addressing 

whether counsel’s performance was deficient.” Baer v. State, 942 N.E.2d 80, 91 

(Ind. 2011). “Indeed, most ineffective assistance of counsel claims can be 

 

1 Wait also argues that his trial counsel did not cross-examine witnesses to show motive, bias, or personal 

interest. However, he does not develop an argument on this point, but instead directs us to another section of 

his brief about his post-conviction relief hearing. Therefore, we decline to address this particular issue. See 

Flynn v. State, 702 N.E.2d 741, 744 (Ind. Ct. App. 1998) (“Generally, 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.”). 
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resolved by a prejudice inquiry alone.” French v. State, 778 N.E.2d 816, 824 

(Ind. 2002). 

[10] Wait argues that his trial counsel erred when counsel did not pursue an alibi 

defense. When the State orally moved to amend the charges, Wait’s trial 

counsel objected immediately, citing Wait’s due process rights and prejudice to 

him by the proposed amendment. Wait mistakenly asserts that the trial court 

never ruled on the State’s motion, which he claims resulted in prejudice to him 

because he was not able to provide an alibi for the proposed changed dates. 

However, the trial court issued a written order denying the State’s motion to 

amend. Trial Court App. p. 140. Because the State’s motion was denied, we 

fail to see how Wait’s trial counsel was deficient or how Wait was prejudiced 

by the proposed amendment.

[11] Wait next argues that, because he received the ineffective assistance of counsel 

at trial, his admissions to being an habitual offender and repeat sex offender 

were not voluntarily, knowingly, or intelligently made. Wait argues that his 

trial counsel should have demanded a jury determination on these issues, and 

that a jury would have been more than likely to find in his favor. Wait offers no 

evidence to support his claim that his plea was not knowingly or voluntarily 

entered, and he does not dispute that the trial court fully advised him of the 

allegations, his rights, and the consequences of his admissions. The trial court 

asked him whether he understood that he was under no obligation to enter into 

an agreement admitting that he was an habitual criminal offender and a repeat 

sexual offender, and Wait replied affirmatively. The trial court asked him 
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whether he understood that by admitting that he was a repeat sexual offender 

and an habitual criminal offender, he was waiving his right to require that the 

State prove those propositions to a jury beyond a reasonable doubt, and Wait 

replied affirmatively. Accordingly, Wait did not meet his burden to show that 

his trial counsel’s performance was deficient or that he was prejudiced by it.

[12] Wait also contends that his trial counsel was ineffective when counsel did not 

object to the prosecutor’s improper vouching statements during the State’s 

closing argument, denying him a fair trial and resulting in fundamental error. 

When reviewing a claim of prosecutorial misconduct, we determine (1) whether 

the prosecutor engaged in misconduct, and, if so, (2), whether the misconduct, 

under all of the circumstances, placed the defendant in a position of grave peril 

to which he should not have been subjected. Carter v. State, 956 N.E.2d 167, 

169 (Ind. Ct. App. 2011). The gravity of the peril turns on the probable 

persuasive effect of the misconduct on the jury’s decision, not on the degree of 

impropriety of the conduct. Id. For prosecutorial misconduct to be 

fundamental error, it must make a fair trial impossible or amount to clearly 

blatant violations of basic and elementary principles of due process and present 

an undeniable and substantial potential for harm. Id. at 170.

[13] A prosecutor may not state his or her personal opinion regarding the credibility 

of a witness during trial, as such statements amount to vouching for a witness. 

Thomas v. State, 965 N.E.2d 70, 77 (Ind. Ct. App. 2012). However, “a 

prosecutor may comment as to witness credibility if the assertions are based on 

reasons arising from the evidence presented at trial.” Id.
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[14] Wait challenges the following parts of the State’s closing argument as improper 

vouching:

Society does not want torn and bleeding children coming into 

this courtroom. What society wants is they want it to be caught 

before it gets to S.S.’s stage.

* * *

To say that this child is lying means you have to come up with 

some reason as to why the child would lie. . . . There’s no way 

this child could even begin to create this conspiracy. And what 

did the mother say? The mother said that, sure, you know, she’s 

a kid, she does lie about little things, but the big stuff she’s not 

lying about. . . . You’ve got to have a good reason to discount 

this child. . . . And what mother puts a child through this when 

it’s not a custody fight? . . . There is no reason for a mother or a 

child to come forward and create a lie like this. . . . Is she trying 

to get attention? . . . I don’t think this attention was the type that 

a child would be looking for that she would not have backed out 

of this to walk away from this attention. So it’s not a lie, seeking 

attention; it’s simply the truth.

* * *

There’s nothing to be gained by coming forward with what is 

apparently going to be argued a lie. . . . All it did was cause 

incredible emotional harm in being able to talk about this. . . . 

[T]here’s simply no logical explanation for it other than it 

happened.

Tr. p. 380-384. 
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[15] We find that these statements constitute improper vouching for S.S.’s and her 

mother’s credibility. The credibility of S.S. was central to this case. We find 

that the prosecutor’s statements that S.S. and her mother had no reason to lie;

that the jury would have to find a reason for S.S. to lie or to discount her story; 

and that the jury should believe S.S. because “it’s simply the truth” and that 

“there’s simply no logical explanation for it other than it happened” were not 

based on evidence presented in trial. We conclude, therefore, that these 

statements constituted improper vouching. See Lainhart v. State, 916 N.E.2d 

924, 938 (Ind. Ct. App. 2009) (finding that prosecutor’s statement during 

closing argument that “if any officer would even come close to not putting out 

exactly what happened telling the truth, they’re out” constituted improper 

vouching and commentary on the justness of the cause).

[16] The prosecutor’s assertion that “there’s nothing to be gained by coming forward 

with” the allegation because it would only “cause incredible emotional harm in 

being able to talk about this” was also inappropriate. Tr. p. 384. The 

prosecutor’s assertion that bringing forward the allegation caused “incredible 

emotional harm” suggested that the prosecutor knew that S.S. was telling the 

truth. See Brummett v. State, 10 N.E.3d 78, 87 (Ind. Ct. App. 2014) (finding that

the prosecutor could say that a “witness had nothing to gain by, by being here 

today” but that the prosecutor improperly vouched for a witness by saying that 

“[h]e just had to do the right thing” because it suggested that the prosecutor 

knew that the witness was telling the truth). 
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[17] However, we cannot say that this misconduct placed Wait in a position of grave 

peril. During the trial, the jury heard the testimony of S.S., who testified that 

Wait penetrated her in three different ways, forced her to perform fellatio, and 

forced her to remove her clothes and “hump” his penis. Wait, slip op. at 3. It is 

unlikely that the jury found Wait guilty of child molesting for a reason other 

than the evidence introduced at trial. Any harm done by the prosecutor’s 

assertions in the closing argument was not substantial, and did not result in 

fundamental error. As a result, we find that the post-conviction court did not 

err by concluding that Wait did not receive the ineffective assistance of trial 

counsel.

III. Appellate Counsel

[18] Wait argues that appellate counsel was ineffective because counsel did not raise 

the issues of the State’s third amendment to the charges, the prosecutorial 

misconduct of improper vouching, and his sentence.2

[19] The standard of review for claims of ineffective assistance of appellate counsel 

is the same as that for trial counsel in that the defendant must show appellate 

counsel was deficient in his or her performance and that the deficiency resulted 

in prejudice. E.g., Hollowell, 19 N.E.3d at 269. Ineffectiveness is rarely found 

 

2 Wait also argues that appellate counsel was ineffective because counsel did not raise the issue of Wait’s trial 

counsel not eliciting sufficient testimony from a defense witness. To support his argument, Wait directs us to 

a discussion of his post-conviction relief hearing. Because he does not present a cogent argument, he waives 

this issue. 
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when the issue is the failure to raise a claim on direct appeal. Taylor v. State, 

717 N.E.2d 90, 94 (Ind. 1999). The decision as to what issues to raise on 

appeal is one of the most important strategic decisions made by appellate 

counsel, and we give considerable deference to those decisions. Bieghler v. State, 

690 N.E.2d 188, 195 (Ind. 1997). To succeed on this claim, the petitioner must 

show that the unraised issue was significant, obvious, and clearly stronger than 

the issues that were raised. Id. at 194. 

[20] Wait argues that appellate counsel was ineffective because appellate counsel did 

not raise the issue of the State’s amendment to the charges. However, as 

discussed above, the trial court denied the State’s motion to amend the charges. 

Accordingly, appellate counsel was not deficient in not raising this issue.

[21] Wait also argues that appellate counsel was ineffective because counsel did not 

raise the issue of prosecutorial misconduct nor did his counsel challenge his 

sentence. As for the prosecutorial misconduct, we have already found no 

fundamental error, so Wait’s appellate counsel did not err in not raising it on 

appeal. As for his sentence, his appellate counsel already challenged it during 

his direct appeal, arguing that the trial court erred by ordering one of the four 

sentences to be served consecutively to the other three concurrent terms; we 

affirmed the trial court’s decision. Wait, slip op. at 3-4. During Wait’s postconviction hearing, one of his appellate attorneys testified that “viable issues 

were somewhat limited,” post-conviction tr. p. 14, and discussed the decisionmaking process about which issues to raise on direct appeal. Wait’s appellate 

attorneys acted based on strategy, and we give great deference to their 
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decisions. Accordingly, Wait has not shown that his appellate counsel was 

deficient or that he was prejudiced by their performance.

IV. Post-Conviction Relief Counsel

[22] Wait argues that post-conviction relief counsel was ineffective because counsel 

did not competently represent him. Specifically, Wait asserts that counsel did 

not present adequate additional evidence, did not make cogent arguments 

concerning Wait’s ineffective assistance of counsel claims, did not adequately 

question his witnesses, and did not make cogent arguments against Wait’s 

sentence enhancement.

[23] There is no constitutional right under the federal or state constitution to counsel 

in post-conviction proceedings. Hill v. State, 960 N.E.2d 141, 145 (Ind. 2012). 

“When evaluating post-conviction counsel, courts inquire whether ‘counsel in 

fact appeared and represented the petitioner in a procedurally fair setting which 

resulted in a judgment of the court.’” Id. (citing Baum v. State, 533 N.E.2d 

1200, 1201 (Ind. 1989)).

[24] Wait’s first post-conviction counsel filed a petition that listed five grounds for 

relief; the post-conviction court allowed the claims of ineffective assistance of 

trial and appellate counsel to go forward, finding the others to have been 

waived, res judicata, or abandoned. Wait’s second post-conviction counsel 

called and questioned witnesses, including one of Wait’s trial attorneys, one of 

Wait’s appellate attorneys, and a witness not called during Wait’s trial, and 

submitted proposed findings of fact and conclusions of law. In short, his 
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counsel appeared and represented him in a procedurally fair setting, and the 

post-conviction court rendered a judgment on the merits of his claims. We find 

that Wait did not receive the ineffective assistance of post-conviction counsel.

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

Mathias, J., concurs.

Pyle, J., concurs in result.