Court of Appeals of Indiana | Memorandum Decision 18A

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### 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.
A PPELLANT P RO S E Jesse Doyle, Jr. Carlisle, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Caroline G. Templet o n Monika Prekopa Talbot Deputy Attorneys General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA
Jesse Doyle, Jr. , Appellant

- Petitioner , v. 

### State of Indiana , Appellee

- Respondent

. April 2 8 , 2020 Court of Appeals Ca se No. 18A

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- 1587 Appeal from the Dearborn Circuit Court The Honorable James D. Humphrey, Judge Trial Court Cause No. 15C01

- 1312

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- 10

Kirsch , Judge .
[1] Jesse Doyle, Jr. (“ Doyle ”) appeals the denial of his petition for post

- conviction relief, contending that the post

- conviction court erred. On appeal, he raises theCourt of Appeals of Indiana | Memorandum Decision 18A

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following restated issue for our review: whether Doyle received ineffective assistance of his trial counsel.

[2] We affirm. 

### Facts and Procedural History
[3] The facts supporting Doyle ’s convictions as set forth by this court in his direct appeal are as follows: On April 29, 2011, forty

- seven - year - old Doyle was living with his girlfriend and her ten

- year - old daughter, H.H. H.H. stayed home sick from school that day , and Doyle was responsible for watching her. H.H. knew that Doyle usually kept a gun under his pillow, ammu nition in the chest next to the bed, and knives in the bedroom. H.H. was in Doyle ’ s bed , and Doyle began to tickle her and kiss her on her arm and stomach. Doyle then got on top of H.H. and told her, “I'm going to f* * * you.” State’s Ex . 3A at 77. H.H. yelled for help, and Doyle closed the window. H.H. ran for the door, but Doyle grabbed her. He then slapped H.H., told her to be quiet, and put his hand over her mouth and nose. Doyle removed H.H. ’ s pants and spread her genitals apart with his fingers. He told H.H. to get up, closed the door to his bedroom, and removed his clothing. H.H. used the connected restroom and then returned to Doyle ’ s room. Doyle told H.H. to “go lay down on the bed,” id

. at 141, and Doyle rubbed his penis on H.H. ’ s genitals and said , “You have a nice little pussy.” Id. Doyle ejaculated on H.H. and used a towel to wipe his penis and H.H. ’ s genitals. He told H.H. to stand up and put her clothes back on. H.H. then moved to lie down on the couch, but Doyle told her to “come here.” Id. at 142. He then showed H.H. a gun and a knife and threatened to kill her if she told anyone. H.H.Court of Appeals of Indiana | Memorandum Decision 18A

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“pinky

- promised” Doyle that she would not tell anyone what he had done. Id. Doyle then showed H.H. that he was putting a gun in his jacket pocket. Both Doyle and H. H. went to H.H. ’ s grandmother ’ s house that evening, and H.H. told her grandmother what Doyle had done to her. The police arrived at H. H. ’ s grandmother ’ s house and took H.H. and her mother to Cincinnati Children ’ s Hospital. Sexual

- assault evidence was collected from H.H. Police were initially unable to find Doyle. In May 2011, Doyle called his daughter, Tricia, and told her that he had intended to have intercourse with H.H. Tricia then told the police where Doyle was. When police arrived at the residence where Tricia said Doyle was, they found him hiding in a back bedroom and his car was hidden at another location. Doyle admitted to touching H.H. with his penis for approximately thirty seconds. State’s Ex . 28A at 314. The State charged Doyle with Class A felony attempted child molesting, two counts of Class A fel ony child molesting while armed with a deadly weapon, and Class C felony intimidation with a deadly weapon. A jury trial was held , and Doyle was found guilty on all counts. At the sentencing hearing, the trial court merged the two Class A felony child mo lesting while armed with a deadly weapon convictions into the Class A felony attempted child

- molesting conviction. It then sentenced Doyle to fifty years for Class A felony attempted child molesting and four years for Class C felony intimidation with a deadly weapon, to be served concurrently. Doyle v. State , No. 15A05

- 1301

- CR

- 39 , 2013 WL 4105536, *1

- *2 ( Ind. Ct. App. Aug. 14, 2013) , trans. denied

.Court of Appeals of Indiana | Memorandum Decision 18A

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[4] Doyle filed a direct appeal and was represented by counsel. On appeal, Doyle alleged that the trial court erred when it merged his two Class A felony child molesting convictions into the Class A felony att empted child molesting conviction instead of vacating them and that the State presented insufficient evidence to support his convictions for Class A felony child molesting and for Class A felony attempted child molesting . A panel of this court issued an

u npublished memorandum decision in which it affirmed the trial court in part and reversed it in part. Id

. This court held that the trial court erred in merging, and not vacating the Class A felony child molesting convictions and found that sufficient evidence sup ported the remaining conviction for Class A felony attempted child molesting. Id . at *2

- *3 . Doyle sought transfer to the Indiana Supreme Court , which was denied.

[5] On December 17, 2013, Doyle filed a pro se petition for post

- conviction relief , in which he alleged that he received ineffective assistance of trial counsel. Appellant’s PCR App. Vol. I at 21

- 31. Although t he State Public Defender filed an appearance for Doyle’s post

- conviction relief petition, the State Public Defender later with drew its appearance on Doyle’s behalf on June 23, 2016, and Doyle thereafter proceeded pro se

. Id

. at 45

- 46. Doyle amended his petition on October 19, 2017, and again alleged that he received ineffective assistance of counsel for several reasons

. Id . at 151

- 61 . Specifically, Doyle alleged that his trial counsel was ineffective because he : (1) did not challenge Juror 8; (2) did not move to suppress his statement to police; (3) did not object to Juror 8, Count IV, multiple convictions being entered, or t he jury instructionCourt of Appeals of Indiana | Memorandum Decision 18A

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on attempted child molestation; (4) did not raise a defense because he allegedly conceded Doyle’s guilt in the opening statement and some of his statements in the closing argument; (5) did not take a deposition of H.H.; and (6) did not provide advance notice of the affirmative defense of abandonment

. Id . at 152

- 59.

[6] The post

- conviction court held an evidentiary hearing on March 28, 2018

. At the hearing, Doyle’s t rial counsel testified that he had no memory of Doyle claiming that Doyle knew Juror 8 or that Juror 8 later gave a gift to the prosecutor
. PCR Tr. Vol. I at 243, 245. Trial c ounsel further testified that whether to take depositions is a matter of strategy and that he does not always take depositions of witnesses because it c an sometimes help the State by revealing possible flaws in the State’s case

. Id . at 2 46

. Trial c ounsel explained that in his opening statement he did not concede Doyle’s guilt, but only acknowledged that there was some clear evidence that could not be di sputed

. Id . at 248. Trial c ounsel also testified that he did not believe that it would have been plausible to file a motion to dismiss the charges against Doyle because it would not have been granted

. PCR Tr. Vol. II at 16

- 17.

[7] The two police officers who interviewed Doyle also testified at the post

conviction hearing regarding the interview that took place in a police car outside of a home where the officers had discovered Doyle hiding several days after the investigation began. I d . at 21 , 36

. Both officers testified that Doyle was not under custodial arrest when they questioned him and that he was free to leave. Id . at 24, 26, 27, 30, 39

- 40. The officers specifically testified that theyCourt of Appeals of Indiana | Memorandum Decision 18A

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told Doyle he was free to leave before th ey began questioning him and again informed him he was free to leave in the middle of the interview. Id . at 30 , 33 39

- 40 . They also testified that Doyle was allowed to leave the car after the interview and was not arrested at that time. Id . at 30

- 31 , 40

.
[8] The post
- conviction court issued its order, denying Doyle’s petition on June 16, 2018

. Appellant’s PCR App. Vol. II at 263

- 69. In the order, the post

- conviction
court found that as to Doyle’s claim regarding Juror 8, Doyle failed to prove that his trial counsel’s representation was deficient because there was no evidence that there was any misconduct by Juror 8 or that the juror even knew Doyle. Id . at 267. As to Doyle’s claim that trial counsel was ineffective for failing to file a motion to supp ress or dismiss because of alleged Miranda violations during his interview with the police, the post

- conviction court found that Doyle failed to prove by a preponderance of the evidence that he was at any point under custodial arrest during questioning. Id

. Because Doyle could not prove that a motion to dismiss or a motion to suppress would have been granted if filed, the post

- conviction court concluded that he failed to prove any prejudice

. Id . at 268. The post

- conviction court further concluded that the rest of Doyle’s claims were without merit because he failed to show either that trial counsel’s performance fell below an objective standard of reasonableness or that he was prejudiced by the representation. Doyle now appeals.



### Discussion and Decision
[9] Th is is an appeal from the denial of a petition for post

- conviction relief.Court of Appeals of Indiana | Memorandum Decision 18A

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We observe that post

- conviction proceedings do not grant a petitioner a “super

- appeal” but are limited to those issues available under the Indiana Post

- Conviction Rules. [ Ind. Post

Conviction Rule 1(1) ]. Post

- conviction proceedings are civil in nature, and petitioners bear the burden of proving their grounds for relief by a preponderance of the evidence. Ind. Post

Conviction Rule 1(5) . A petitioner who appeals the denial of [post

- conviction relief] faces a rigorous standard of review, as the reviewing court may consider only the evidence and the reasonab le inferences supporting the judgment of the post

conviction court. The appellate court must accept the post

conviction court’s findings of fact and may reverse only if the findings are clearly erroneous. If a [post

- conviction] petitioner was denied reli ef, he or she must show that the evidence as a whole leads unerringly and unmistakably to an opposite conclusion than that reached by the post

- conviction court.

[10] Massey v. State , 955 N.E.2d 247, 253 (Ind. Ct. App. 2011) (quoting Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (citations omitted), trans. denied )

.
[11] Doyle challenges the effectiveness of the representation of his trial counsel. “The Sixth Amendment to the United States Constitution guarantees criminal defendan ts the right to counsel and mandates that the right to counsel is the right to the effective assistance of counsel. B obadilla v. State , 117 N.E.3d 1272, 1279 (Ind. 2019)

. “We evaluate Sixth Amendment claims of ineffective assistance under the two

- part test announced in Strickland

. ” Rondeau v. State , 48 N.E.3d 907, 916 (Ind. Ct. App. 2016) (citing Strickland v. Washington, 466 U.S. 668, 698 (1984) ), trans. denied

. To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate that (1) co unsel’s representation fellCourt of Appeals of Indiana | Memorandum Decision 18A

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short of prevailing professional norms, and (2) counsel’s deficient performance prejudiced the defendant such that there is a reasonable probability that, but for counsel ’ s unprofessional errors, the result of the proceeding wou ld have been different. Strickland

, 466 U.S. at 687

- 88, 698 . “‘A reasonable probability is a probability sufficient t o undermine confidence in the outcome.’” Rondeau , 48 N.E.3d at 916 (quoting Strickland , 466 U.S. at 698 ). “The two prongs of the Strickland test are separate and independent inquiries.” Id

. (citing Strickland , 466 U.S. at 697 ). “Thus, ‘[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.’” Id

. (quoting Strickland, 466 U.S. at 697 ).

[12] Further, counsel’s performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption. McCullough v. State , 973 N.E.2d 62, 74 (Ind. Ct. App. 2012) , trans. denied . We will not lightly speculate as to what may or may not have been an advantageous trial strategy, as counsel should be given deference in choosing a trial st rategy that, at the time and under the circumstances, seems best. Perry v. State , 904 N.E.2d 302, 308 (Ind. Ct. App. 2009 ) (citing Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998) ) , trans. denied . Isolated omissions or errors, poor strate gy, or bad tactics do not necessarily render representation ineffective. McCullough , 973 N.E.2d at 74

.
[13] Doyle argues th at the post

- conviction court erred when it denied his petition for post
- conviction relief

, contending that he received ineffective assistance of trial counsel . He specifically asserts that his trial counsel was ineffective for (1)Court of Appeals of Indiana | Memorandum Decision 18A

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failing to do deposition s prior to tr ia l, (2) failing to investigate the alleged Miranda violations and failing to file a motion to suppress or a motion to dismiss the charges against him as a result of these alleged Miranda violations, (3) failing to challenge Juror 8, (4) not c alling defense witnesses that could have substantiated Doyle’s claims that he did not cause the red irritation on the victim’s vaginal area, (5) failing to object to statements made by the prosecutor during closing argument and to the admission into eviden ce of four pocket knives, (6) allegedly conceding Doyle’s guilt in his opening statement and closing argument , and (7) failing to challenge the charging information for alleged defects.

[14] Initially, we note that Doyle has failed to make a cogent argument regarding his claims of ineffective assistance of trial counsel on appeal. See Ind. Appellate Rules 46(A)(8) (a) ( stating that “ argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning ”)

. 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

re cord

. Smith v. State , 822 N.E.2d 193, 202

- 03 (Ind. Ct. App. 2005) , trans. denied

. “[P]ro se litigants are held to the same standard regarding rule compliance as are attorneys duly admitted to the practice of law and must comply with the appellate rules to have their appeal determined on the merits.” Id . at 203

. In the present case, a lthough Doyle provides citations to cases, he does not apply them in a manner that develop s and support s a reasoned argument. Because Doyle has failed to make a cogent argument regarding anyCourt of Appeals of Indiana | Memorandum Decision 18A

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of his claims of ineffectiveness of trial counsel , he has waived appellate review of his contentions. Id

. Waiver for failure to raise cogent argument notwithstanding, we proceed to reach Doyle’s contentions on the merits.

[15] Doyle first contends that his trial counsel was ineffective for not conducting a deposition of H.H. because the deposition would have shown that the State’s

accus ations that he possessed and used a weapon in the commission of the offenses were not correct and would have changed the outcome of the case. Appellant’s Br . at 11. However, i t is not clear from Doyle’s argument which of the charged offenses he bel ieves would have been affected by H. H.’s deposition. Doyle’s use of a weapon was necessary for the State to prove the elements of Counts I, III, and IV

. Direct Appeal App. Vol. I at 16

- 17. Both Counts I and III were vacated following Doyle’s direct app eal. Doyle , 2013 WL 4105536 at * 2

. Therefore, t o the extent that Doyle’s argument rests on the premise that Counts I and III wo uld have been impacted h ad his trial counsel conducted a deposition of H.H., he cannot show prejudice because he no longer stands convicted of those offenses. Further, Doyle has not met his burden to demonstrate that counsel performed deficiently. T actic al or strategic decisions will not support a claim of ineffective assistance. Humphrey v. State , 73 N.E.3d 677, 683 (In d. 2017)

. Here, trial counsel testified that he did not take H.H.’s deposition as a matter of trial strategy because, in his experience, depositions can sometimes help the State by alerting it to possible shortcomings in its case

. PCR Tr. Vol. I at 24 6. Counsel ’ s failure to interview or depose State ’ s witnesses does not, standing alone, show deficient performance. Willia ms v. State, 771Court of Appeals of Indiana | Memorandum Decision 18A

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N.E.2d 70, 74 (Ind. 2002)

. The question is what additional information may have been gained from further investigation and how the absence of that information prejudiced his case. Id. Doyle does not identify what ad ditional information would have been available to his trial counsel if counsel had conducted a deposition that was not already accessible to him

. He has, therefore, failed to meet his burde n.
[16] Doyle next argues that his trial counsel was ineffective for failing to investigate the alleged Miranda violations and failing to file a motion to suppress or a motion to dismiss the charges against him as a result of these alleged Miranda violations . T o prevail on an ineffective assistance of counsel claim based o n counsel’s failure to file motions, Doyle must demonstrate a reasonable probability that the motion would have been successful. Talley v. State , 51 N.E.3d 300 , 303 (Ind. Ct. App. 20 16 ) , trans. denied

. Here, Doyle has not shown a reasonable probability that his trial counsel w ould have been successful i f he had filed either a motion to suppress Doyle’s statement to police or a motion to dismiss the charges against Doyle because Doyle was not in custody when he spoke to the police and was, therefore, not entitled to Miranda warnings. The trigger to require Miranda warnings is custodial interrogation. Hudson v. State , 129 N.E.3d 220, 224 (Ind. Ct. App. 2019)

. To determine whether a person is in
custo dy the inquiry is whether there is formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Reid v. State , 113 N.E.3d 290, 300 (Ind. Ct. App. 2018) , trans. denied

. Questioning an individual the police suspect of a crime does not inherently render the questioningCourt of Appeals of Indiana | Memorandum Decision 18A

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custodial interrogation. Id

. Here, Doyle was not in custody when the police questioned him. He was told he was not under arrest and that he was free to leave

. PCR Tr. Vol. II at 24, 26, 27, 30, 39

- 40. D oyle agreed to speak with the officers and sat in the front passenger seat of the police car, the car door was unlocked, and Doyle was not handcuffed or restrained in anyway

. Id . at 33, 40, 41. Doyle was allowed to leave at the end of the interview

. Id . at 30

- 31, 40

. Because Doyle voluntarily spoke with the police in their car, received assurances that he was not under arrest, and was able to leave after the interview was complete, he was not in custody and Miranda warnings were not required. See Faris v. State , 901 N.E.2d 1123,1126

- 27 (Ind. Ct. App. 2009) (finding that defendant was not in custody and Miranda warni ngs were not required where defendant went to the police station voluntarily , was questioned for less than two hours, was never told he was under arrest, and was permitted to go home after the interview concluded ) , trans. denied

. Doyle had not met his bur den to show that his trial counsel was ineffective for not filing a motion to suppress or a motion to dismiss.

[17] Doyle next claims that his trial counsel was ineffective for failing to challenge Juror 8. He asserts that he told his trial counsel that both he and H.H. knew Juror 8 , and the juror did not inform anyone of this knowledge of the parties. At the post

- conviction hearing, trial c ounsel testified that he had no memory of being told a

bout a prior relationship between Doyle or H.H. with Juror 8

. PCR Tr. Vol. II at 243, 245. Doyle did not present any evidence to contra dict this testimony

. The post

- conviction court correctly concluded Doyle had failed toCourt of Appeals of Indiana | Memorandum Decision 18A

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meet his burden because trial counsel cannot be found to have provided deficient representation for failing to act on information that he did not receive from Doyle. Further , Doyle has not shown how he was prejudiced merely because a juror might have known him and H.H.

[18] As to Doyle’s contentions that his trial counsel was ineffective for not calling defense witnesses that could have substantiated hi s claims that he did not cause the red irritation on the victim’s vaginal area and for failing to object to statements made by the prosecutor and to the admission of four pocket knives, Doyle has waived these arguments. Doyle did not allege these issues in his petition for post

- conviction relief

. It is well settled that issues not raised in a petition for post

- conviction relief may not be raised for the first time o n appeal. Pavan v. State , 64 N.E.3d 231, 233 (Ind. Ct. App. 2016)

. For the first time, Doyle now alleges that his t rial counsel was ineffective for failing to call witness es that would have proven that he did not cause the red irritation on H.H.’s vagina found during the sexual assault exam

. Appellant’s Br

. at 14. Also, for the first time, Doyle contends that his tri al counsel was ineffective for failing to object to the admission of four pocket knives into evidence and to statements made by the prosecutor during closing argument. Id

. Because Doyle did not raise any of these issue s in his petition for post

- conviction relief or before the post
- conviction court , he cannot raise them now on appeal, and they are waived

. Pavan , 64 N.E. 3 d at 233

.
[19] Doyle further asserts that his trial counsel was ineffective for allegedly conceding Doyle ’s guilt in his opening and closing statements . Doyle points toCourt of Appeals of Indiana | Memorandum Decision 18A

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several statement made by his trial counsel during both his opening and closing statements, in which Doyle claims counsel admitted Doyle’s guilt to the charged offenses. At the post

- convicti on hearing, trial counsel explained that in his opening statement he did not concede Doyle’s guilt, but only acknowledged that there was some clear evidence that could not be disputed. PCR Tr. Vol. I . at 248. Trial counsel further stated that “ we strongl y argued that you were not in possession of a weapon ,” but that t here were “ certain things during the trial that [Doyle] had admitted to . . . [and] some of the evidence in the case was so clear, we couldn ’ t contradict [it].” Id

. Therefore, the challenged statements made by trial counsel were strategic decisions, and t actical or strategic decisions will not support a claim of ineffective assistance. Humphrey , 73 N.E.3d at 683

. Further, during the post

- conviction hearing, Doyle only questioned his trial counsel about one chall enged statement made during opening statement and did not inquire into the statements from closing argument that he challenges on appeal. See Appellant’s Br . at 15; PCR Tr. Vol. I at 247

- 49. Doyle ha s not met his burden to show that his trial counsel was ineffective for statements made in his opening and closing arguments.

[20] Doyle lastly argues that his trial counsel was ineffective for failing to challenge the charging information because he claims there were defects. “‘ The purpose of the charging instrument is to provide a defendant with notice of the crime of which he is c harged so that he is able to prepare a defense. ’” Hayden v. State , 19 N.E.3d 831, 840 (Ind. Ct. App. 201 4) (quoting Ben

- Yisrayl v. State, 738 N.E.2d 253, 271 (Ind. 2000) , cert. denied , 534 U.S. 1164 (2002) ) , trans. denied

. DoyleCourt of Appeals of Indiana | Memorandum Decision 18A

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does not allege or present any evi dence that suggests that he was unable to defend himself based upon the charges as written. Additionally, Doyle has not identified any particular defect in the charging information that was filed

. Appellant’s Br

. at 15. In his amended petition for post

- conviction relief, Doyle alleged that trial counsel should have objected t o Count IV

. Appellant’s PCR App. Vol. I at 157. Assuming that is still his claim o n appeal, i n order t o prevail

o n a claim that trial counsel should have filed a motion to dismiss Count IV, Doyle has to demonstrate a reasonable probability that such a motion would have been successful. Talley , 51 N.E.3d at 303

. Although Doyle did not specifically ask about the sufficiency o f the charging information during the post
- conviction hearing , trial counsel testified that he did not think it was plausible to file a motion to dismiss the charges because it would not have been granted. PCR Tr. V

ol. II at 16

- 17. The charging information in Count IV contained the name of the action and the court in which it was filed, and the

name of the offense ; provide d the statute violated, the elements o f the offense, the date o f the offense, the county of the offense, and Doyle’s name ; and was signed by the prosecuting attorney

. Direct Appeal App. Vol. I at 18. Doyle has not shown that a motion t o dismiss the charging information would have been successful and has, t herefore , not met his burden to prove his trial counsel was ineffective.

[21] Based on the above, w e conclude that Doyle has failed to prove that his trial counsel was ineffective for (1) failing to do depositions, (2) failing to investigate the alleged Miran da violations and failing to file a motion to suppress or aCourt of Appeals of Indiana | Memorandum Decision 18A

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motion to dismiss the charges against him as a result of these alleged Miranda violations, (3) failing to challenge Juror 8, (4) not calling defense witnesse s , (5) failing to object to statements made by the prosecutor during closing argument and to the admission into evidence of four pocket knives, (6) allegedly conceding Doyle’s guilt in his opening statement and closing argument , and (7) failing to challenge the charging information for alleged defects. The post

conviction court did not err in denying Doyle’s petition for post

- conviction relief.

[22] Affirmed.
Najam, J., and Brown, J., concur.