Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018 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

Leif O’Connell

Pendleton, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ellen H. Meilaender

Supervising Deputy

Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Leif O’Connell,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

December 17, 2018

Court of Appeals Case No.

18A-PC-372

Appeal from the St. Joseph 

Superior Court

The Honorable Jane Woodward 

Miller, Judge

Trial Court Cause No.

71D01-1701-PC-6

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018 Page 2 of 13

Case Summary and Issues

[1] Following a jury trial in 1999, Leif O’Connell was convicted of one count of 

murder and five counts of attempted murder and sentenced to 175 years. 

O’Connell pursued a direct appeal, as a result of which his convictions were 

affirmed. In 2014, O’Connell’s first petition for post-conviction relief was 

denied. In that petition, O’Connell alleged his trial counsel and appellate 

counsel were ineffective in several respects. O’Connell did not appeal the 

denial of post-conviction relief.

[2] In 2016, O’Connell sought permission from this court to file a successive 

petition for post-conviction relief, which this court granted. O’Connell then 

filed his successive petition for post-conviction relief, which the post-conviction 

court denied. O’Connell now appeals the denial, raising the following issues: 

1) whether the post-conviction court erred in determining he did not receive 

ineffective assistance of appellate counsel when appellate counsel raised issues 

that had no merit and failed to raise significant and obvious issues; and 2) 

whether the post-conviction court erred in determining he did not receive 

ineffective assistance of trial counsel when trial counsel failed to object to 

prosecutorial misconduct during closing arguments and misadvised him 

regarding a plea agreement offer. The State asserts O’Connell’s claims are 

barred because he raised issues concerning ineffective assistance of trial and 

appellate counsel in previous proceedings. Concluding the State is correct and 

that O’Connell’s claims are procedurally defaulted, we affirm the denial of postconviction relief.
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Facts and Procedural History

[3] O’Connell purchased a gun on February 11, 1997. From February 12 to 

February 26, O’Connell shot at six people, injuring four and killing one. The 

State charged O’Connell with one count of murder and five counts of attempted 

murder. At the conclusion of his jury trial, O’Connell was convicted of all 

counts. The trial court imposed consecutive sentences totaling 175 years. 

[4] On direct appeal, O’Connell raised four issues: 1) whether O’Connell waived 

the right to a court-ordered pre-trial lineup and whether the trial court erred in 

allowing in-court identifications by two victims; 2) whether O’Connell waived 

any error in the trial court allowing a surprise witness by the State; 3) whether 

the evidence was sufficient to support his convictions; and 4) whether the trial 

court erred in sentencing O’Connell to consecutive sentences. Our supreme 

court affirmed O’Connell’s convictions but found that the sentencing statement 

was insufficient to afford meaningful review of the sentence and remanded to 

the trial court on that issue. O’Connell v. State, 742 N.E.2d 943, 952-53 (Ind. 

2001). On remand, the trial court entered a new sentencing order but imposed 

the same aggregate 175-year sentence. This court affirmed the sentence on 

appeal. O’Connell v. State, No. 71A04-0105-CR-224 (Ind. Ct. App. Nov. 30, 

2001), trans. denied.

[5] In 2002, O’Connell filed his first petition for post-conviction relief pro se, which 

was amended in 2012 by privately-retained counsel after the State Public 

Defender withdrew. At the post-conviction hearing in 2014, the following 
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issues were addressed: whether O’Connell’s trial counsel provided ineffective 

assistance by failing to raise an insanity defense at trial, failing to follow 

through with a court-ordered pre-trial line-up and failing to object to 

identification evidence presented at trial, failing to request a continuance 

because a State’s witness was belatedly disclosed, and failing to retain a 

ballistics expert. In addition, O’Connell claimed that his appellate counsel was 

ineffective by failing to raise these instances of ineffective assistance of trial 

counsel on direct appeal. The post-conviction court denied O’Connell’s 

petition for post-conviction relief. No appeal was taken from the denial.

[6] In 2016, O’Connell filed with this court a petition for permission to file a 

successive petition for post-conviction relief. In that petition, O’Connell alleged 

as grounds for relief that his post-conviction counsel “was clearly wrong” in 

raising the issue of whether appellate counsel was ineffective for failing to raise 

the issue of ineffective assistance of trial counsel on direct appeal because that 

practice is not encouraged; rather, post-conviction counsel should have raised 

the issues of whether appellate counsel raised issues on appeal that were 

without merit or that were not presented well and whether appellate counsel 

failed to raise significant issues clearly present in the record. Appellant’s 

Appendix, Volume 2 at 12. He also alleged as grounds for relief that his postconviction counsel’s “misrepresentation and bad advice” resulted in no 

meritorious claims against appellate counsel in his first post-conviction 

proceeding and caused him to forfeit his right to appeal meritorious issues 

related to ineffective assistance of his trial counsel. Id. at 14-15. This court 
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granted O’Connell’s petition, concluding he “has established a reasonable 

possibility that he is entitled to post-conviction relief[.]” Id. at 17.

[7] On October 5, 2016, O’Connell filed his successive petition for post-conviction 

relief with the post-conviction court. The petition was subsequently amended 

by permission of the post-conviction court. The issues raised therein were:

(a) Whether [O’Connell] was denied effective assistance of 

appellate counsel in violation of the Sixth and Fourteenth 

Amendments to the United States Constitution; Article One, 

sections Twelve and Thirteen of the Indiana Constitution when 

appellate counsel raised issues that had no merit failing to present 

them well on appeal, and failing to raise significant and obvious 

issues stronger than the issues raised.

Id. at 20.

(b) Whether [O’Connell] was denied effective assistance of 

counsel in violation of the Sixth and Fourteenth Amendments to 

the United States Constitution and Article One, sections Twelve 

and Thirteen of the Indiana Constitution when Trial counsel 

failed to object to prosecutorial misconduct during closing 

arguments and misadvised [O’Connell] concerning an insanity 

defense and in declining a plea agreement offer.

Id. at 65 (emphasis omitted).

1

 With respect to appellate counsel, O’Connell 

specifically argued he should have raised the following issues: whether the trial 

 

1

In his reply brief, O’Connell withdraws his claim regarding the insanity defense because it is res judicata, 

having already been litigated in his first post-conviction proceeding. See Appellant’s Reply Brief at 6; see also, 

e.g., Conner v. State, 829 N.E.2d 21, 25 (Ind. 2005) (noting that to the extent a claim is the same as has been 

raised before and decided adversely, it is barred by the doctrine of res judicata).
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court abused its discretion in admitting autopsy photographs; whether the trial 

court erred in dismissing two jurors and not dismissing a third; and whether the 

State committed prosecutorial misconduct during closing argument. See id. at 

26-33. The State responded, pleading the affirmative defenses of waiver and res 

judicata. The post-conviction court held a hearing over two days in 2017 at 

which O’Connell stated, “I feel that none of my previous appeals have any of 

my issues ever been litigated to the fullest extent.” Transcript, Volume 1 at 55. 

O’Connell called his trial and appellate counsel as witnesses. The postconviction court issued its order denying O’Connell relief on January 26, 2018.2

 

O’Connell now appeals the denial.

Discussion and Decision

I. Standard of Review

[8] Post-conviction proceedings are civil in nature and the petitioner must therefore 

establish his claims by a preponderance of the evidence. Ind. Post-Conviction 

Rule 1(5). Post-conviction procedures create a narrow remedy for subsequent 

collateral challenges to convictions, and those challenges must be based on the 

grounds enumerated in post-conviction rules. Turner v. State, 974 N.E.2d 575, 

581 (Ind. Ct. App. 2012), trans. denied. “Post-conviction proceedings do not 

afford the petitioner an opportunity for a super appeal, but rather, provide the 

 

2 The post-conviction court’s order addresses O’Connell’s petition solely on the merits and does not address 

the State’s waiver or res judicata arguments. 
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opportunity to raise issues that were unknown or unavailable at the time of the 

original trial or the direct appeal.” Id. 

[9] A petitioner who has been denied post-conviction relief faces a “rigorous 

standard of review” on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 

2001). We may not reweigh the evidence or reassess the credibility of the 

witnesses and we consider only the evidence and reasonable inferences 

supporting the judgment. Hall v. State, 849 N.E.2d 466, 468-69 (Ind. 

2006). The petitioner must show the evidence is without conflict and leads 

“unerringly and unmistakably to a conclusion opposite that reached by the postconviction court.” Strowmatt v. State, 779 N.E.2d 971, 975 (Ind. Ct. App. 

2002).

II. Trial & Appellate Counsel Claims

[10] O’Connell concedes in his brief that he filed a successive petition for postconviction relief “raising Ineffective assistance of appellate counsel and trial 

counsel[.]” Brief of Appellant at 7. His arguments on appeal are that appellate 

counsel failed to review the pre-trial record, raised issues that “had no merit and 

were destined to fail on appeal[,]” id. at 8, and failed to raise several issues that 

were significant and obvious on the face of the record; and that trial counsel 

failed to object to the State’s closing argument and misadvised O’Connell 

regarding a plea offer from the State. His conclusion is that he “has proven 

beyond the preponderance of the evidence that his trial counsel and appellate 
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counsels were ineffective in representing him during trial and on direct 

appeal[.]” Id. at 40. 

[11] The State asserts O’Connell’s claims are barred by res judicata or otherwise 

procedurally defaulted. “Proper successive petitions contain claims that by 

their nature could not have been raised in earlier proceedings.” Matheney v. 

State, 834 N.E.2d 658, 662 (Ind. 2005). Claims that could have been raised in 

earlier proceedings but were not are procedurally defaulted; claims that have 

already been decided adversely to the petitioner are barred from re-litigation in 

successive post-conviction proceedings by res judicata. Id. O’Connell 

acknowledges the State asserted the affirmative defenses of waiver and res 

judicata in its response to his successive petition but claims that it is actually the 

State that has waived this issue by failing to argue it at the post-conviction 

hearing or address it in its proposed findings of fact and conclusions. However, 

“where an issue has not been properly preserved for review, an appellate court 

may decline to address such an issue whether or not the State has properly 

pleaded or proved the affirmative defense of waiver.” Taylor v. State, 780 

N.E.2d 430, 433 (Ind. Ct. App. 2002), trans. denied; see also Bunch v. State, 778 

N.E.2d 1285, 1287 (Ind. 2002) (noting aside from the Trial Rule 8(C) 

affirmative defense of waiver, there is a “doctrine of judicial administration 

whereby appellate courts may sua sponte find an issue foreclosed under a 

variety of circumstances in which a party has failed to take the necessary steps 

to preserve the issue” known as procedural default). Therefore, we may 
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consider the State’s argument that O’Connell has not properly presented his 

claims in this successive post-conviction proceeding. 

[12] O’Connell claims his attorney provided poor representation during trial and 

lists several alleged deficiencies. However, deficiencies in trial counsel’s 

performance were raised in O’Connell’s first post-conviction petition and 

addressed therein. O’Connell has not made any showing that the additional 

deficiencies he now alleges were unavailable or unknown to him or his postconviction counsel in that proceeding. O’Connell’s current grounds for arguing 

ineffective assistance of trial counsel were previously available but unasserted 

and are therefore procedurally defaulted at this stage. 

[13] O’Connell also claims his appellate attorney provided inadequate 

representation during his direct appeal. Again, however, the assistance of his 

appellate counsel was raised in his first post-conviction petition and O’Connell 

has not made any showing that the claims of inadequate assistance he makes 

now were unavailable then. In short, because the ineffectiveness of the counsel 

who handled O’Connell’s trial and his direct appeal was raised in the first postconviction petition and decided adversely to him, he is not entitled to be heard 

on additional issues bearing on their effectiveness in this successive petition. 

See Hardy v. State, 786 N.E.2d 783, 787 (Ind. Ct. App. 2003) (“[A] defendant 

must present all claims of ineffective assistance of counsel . . . at the same time. 

Those not presented when a claim of ineffective assistance of counsel is first 

advanced . . . are waived.”), trans. denied.
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[14] To the extent O’Connell claims that this court’s order granting him permission 

to file a successive petition for post-conviction relief allows him to raise these 

claims, we first note that Post-Conviction Rule 1(12)(c) specifically states that 

“[a]uthorization to file a successive petition is not a determination on the merits 

for any other purpose[.]” And we note again that all grounds for relief available 

to a petitioner under the Post-Conviction Rules are required to be raised in the 

original petition. P-C.R. 1(8). Only those grounds that were not known or 

available may be advanced in a successive petition for post-conviction relief. 

O’Connell’s petition for permission to file a successive petition for postconviction relief invoked errors by his post-conviction counsel that would have 

been available for the first time in a successive petition. But O’Connell 

abandoned that line of argument when he changed tactics and addressed only 

trial and appellate counsel in the successive petition he filed with the postconviction court. 

[15] O’Connell has had direct appeals of his convictions and sentence and has 

availed himself of the rule that permits a person convicted of a crime in an 

Indiana court one collateral review of the conviction and sentence in a postconviction proceeding. See P-C.R. 1(1). He has completed the review of his 

convictions and sentence to which he is entitled as a matter of right. That 

O’Connell was granted permission to file a successive petition does not obligate 

this court to consider issues that are procedurally defaulted such as those he 

raises here. O’Connell’s successive petition for relief was therefore properly 

denied.
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III. Post-Conviction Counsel Claims

[16] To the extent O’Connell can be said to have challenged the performance of his 

post-conviction attorney, his claims are subject to Graves v. State, 823 N.E.2d 

1193, 1195-97 (Ind. 2005). In Graves, it was noted that post-conviction 

proceedings are not criminal actions and therefore need not be conducted under 

the same standard articulated in Strickland v. Washington, 466 U.S. 668 (1984), 

for trial and appellate counsel. Rather, the standard for post-conviction counsel 

is whether “counsel in fact appeared and represented the petitioner in a 

procedurally fair setting which resulted in a judgment of the court” and a claim 

of defective performance of counsel in a post-conviction proceeding “poses no 

cognizable grounds for post-conviction relief[.]” Graves, 823 N.E.2d at 1196. 

[17] In his petition requesting permission to file a successive petition for postconviction relief, O’Connell alleged his post-conviction counsel’s actions 

resulted in forfeiting his appeal from the denial of his first post-conviction 

petition. In Graves, the petitioner’s first post-conviction petition was denied. 

His post-conviction counsel failed to timely appeal the post-conviction court’s 

denial. The petitioner then filed a successive petition for post-conviction relief 

alleging he received ineffective assistance of his post-conviction counsel. In 

announcing the standard for evaluating the performance of post-conviction 

counsel, the supreme court never discussed the failure to timely appeal or 

suggested it was a consideration in assessing whether the petitioner was denied 

a procedurally fair setting in which to adjudicate his post-conviction claim. 

Rather, the court noted that the petitioner’s counsel appeared at and 
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participated in the post-conviction hearing and therefore, “certainly did not 

abandon” the petitioner. 823 N.E.2d at 1197. The court affirmed the denial of 

the petitioner’s second petition for post-conviction relief. Id.

[18] The same result obtains here. O’Connell’s post-conviction counsel appeared at 

the post-conviction hearing, offered testimony from one witness by affidavit and 

elicited testimony from another witness, and submitted proposed findings of 

fact and conclusions of law on O’Connell’s behalf. In addition, counsel 

apparently reached an agreement with the State to modify O’Connell’s 

sentence; however, the agreement was not approved by the trial court. 

O’Connell was represented by counsel in a procedurally fair setting and has no 

grounds for challenging the performance of his post-conviction counsel.3

Conclusion

[19] The issues O’Connell raised in his successive petition for post-conviction 

regarding his trial and appellate counsel’s performance were all known and 

available to him at the time of his first post-conviction proceeding and the 

performance of his post-conviction counsel does not present a cognizable claim. 

Therefore, the denial of his second post-conviction petition is affirmed. 

 

3 O’Connell alleges “newly discovered evidence” from the post-conviction hearing concerning the sentencing 

judge’s impartiality and the post-conviction judge’s previous service in the county prosecutor’s office. 

O’Connell raises these issues for the first time on appeal and they are therefore waived. See Pavan v. State, 64 

N.E.3d 231, 233 (Ind. Ct. App. 2016) (“It is well settled that issues not raised in a PCR petition may not be 

raised for the first time on appeal.”).
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[20] Affirmed.

Baker, J., and May, J., concur.