Court of Appeals of Indiana | Opinion | 87A05-1404-PC-171 | April 7, 2015 Page 1 of 14

APPELLANT PRO SE

Mark M. Jervis

Carlisle, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Ryan D. Johanningsmeier

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Mark M. Jervis,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

April 7, 2015

Court of Appeals Cause No.

87A05-1404-PC-171

Appeal from the Warrick Superior 

Court.

The Honorable Robert R. Aylsworth, 

Judge.

Cause No. 87D02-9707-PC-59

Riley, Judge.
Court of Appeals of Indiana | Opinion | 87A05-1404-PC-171 | April 7, 2015 Page 2 of 14

STATEMENT OF THE CASE

[1] Appellant-Petitioner, Mark Jervis (Jervis), appeals the post-conviction court’s 

denial of his petition for post-conviction relief.

[2] We affirm.

ISSUE

[3] Jervis raises two issues on appeal which we consolidate and restate as the 

following single issue: Whether Jervis was denied effective assistance of trial 

and appellate counsel. 

FACTS AND PROCEDURAL HISTORY

[4] We adopt the recitation of facts as set forth in Jervis’s direct appeal as follows:

On August 14, 1993, Terri Boyer went on a drinking spree with her 

husband, her brother and the brother’s girlfriend. The four began in 

the early afternoon in Hatfield, their home town, and took the 

brother’s truck to visit several bars, the last in Newburgh. In 

Newburgh, Boyer and her husband got into an argument that resulted 

in Boyer leaving the truck. The other three drove back to Hatfield, 

leaving an intoxicated Boyer to fend for herself. Just before 10 p.m. 

Boyer found her way to Frenchie’s, a tavern in Newburgh, where she 

asked several patrons to give her a ride back to Hatfield. All refused. 

At some point, defendant Jervis entered the bar, met Boyer, and 

offered to take her to Hatfield. The two had no prior acquaintance.

Jervis and Boyer were seen leaving the bar together some time around 

midnight, but no one actually saw them drive away in Jervis’s car. 

Witness Terry Timberlake testified that he saw a car resembling 

Jervis’s station wagon pull into the Newburgh Cinema parking lot 

around 11:30 p.m. Timberlake stated that two people, one male and 

one female, appeared to be in the car, but he could not positively 

identify them as Jervis and Boyer. Approximately thirty minutes later, 
Court of Appeals of Indiana | Opinion | 87A05-1404-PC-171 | April 7, 2015 Page 3 of 14

Timberlake saw the station wagon leave the Cinema parking lot and 

park in an adjacent lot of a daycare center where it remained for about 

ten minutes. It then returned to the Cinema parking lot, and finally 

drove away. Jervis returned to Frenchie’s alone around 12:30 to 1:30 

a.m. the same night, telling those present that he was unable to take 

Boyer to Hatfield because his car had broken down. Jervis went home 

a half hour later. At approximately 12:30 p.m. the next day, the owner 

of Newburgh Cinema found Boyer’s body on a grass strip next to the 

Cinema parking lot. Boyer was nude below her waist and her bra and 

shirt were pushed up to her shoulders. An autopsy concluded that 

Boyer had been strangled and had died around midnight.

On September 5, 1993, Jervis was charged [] with Boyer’s murder. 

The State’s case against Jervis was largely circumstantial and included 

the following evidence: (1) an envelope, pencil and pen Boyer had 

been carrying in her purse were found in Jervis’s trash can outside his 

apartment; (2) Boyer’s driver’s license and her daughter’s library card 

were found in Jervis’s car; and (3) DNA evidence established a strong 

likelihood that a blood stain on Jervis’s shirt and a pubic hair found on 

his pants were Boyer’s. Several witnesses also testified as to Jervis’s 

whereabouts on the night in question. The jury was unable to reach a 

verdict in Jervis’s first trial in 1994. The State retried Jervis in 1995 

and a second jury convicted him.

[5] Jervis v. State, 679 N.E.2d 875, 876-77 (Ind. 1997). Jervis filed a direct appeal

challenging his conviction. In that appeal, Jervis raised several issues relating

to the admission of several pieces of evidence and jury misconduct. On May 

12, 1997, our supreme court affirmed Jervis’s conviction. Id. On March 18, 

2003, Jervis filed his pro se petition for post-conviction relief and subsequently

amended it on September 14, 2012. On October 1, 2013, the post-conviction

court conducted Jervis’s post-conviction hearing. Subsequently, both parties 

filed their proposed findings and conclusion of law, and on March 24, 2014, the 

post-conviction court denied Jervis’s petition. 
Court of Appeals of Indiana | Opinion | 87A05-1404-PC-171 | April 7, 2015 Page 4 of 14

[6] Jervis now appeals. Additional information will be provided as necessary. 

DISCUSSION AND DECISION

I. Standard of Review

[7] Under the rules of post-conviction relief, the petitioner must establish the 

grounds for relief by a preponderance of the evidence. Ind. Post-Conviction 

Rule 1, § 5; Strowmatt v. State, 779 N.E.2d 971, 974-75 (Ind. Ct. App. 2002). To 

succeed on appeal from the denial of relief, the post-conviction petitioner must 

show that the evidence is without conflict and leads unerringly and 

unmistakably to a conclusion opposite that reached by the post-conviction 

court. Id. at 975. The purpose of post-conviction relief is not to provide a 

substitute for direct appeal, but to provide a means for raising issues not known 

or available to the defendant at the time of the original appeal. Id. If an issue 

was available on direct appeal but not litigated, it is waived. Id. 

II. Ineffective Assistance of Counsel

[8] Jervis contends that he was denied the effective assistance of both trial and 

appellate counsel. The standard by which we review claims of ineffective 

assistance of counsel is well established. In order to prevail on a claim of this 

nature, a defendant must satisfy a two-pronged test, showing that: (1) his 

counsel’s performance fell below an objective standard of reasonableness based 

on prevailing professional norms; and (2) there is a reasonable probability that, 

but for counsel’s errors, the result of the proceeding would have been different. 

Johnson v. State, 832 N.E.2d 985, 996 (Ind. Ct. App. 2005) (citing Strickland v. 
Court of Appeals of Indiana | Opinion | 87A05-1404-PC-171 | April 7, 2015 Page 5 of 14

Washington, 466 U.S. 668, 690, 694 (1984) reh’g denied) trans. denied. The two 

prongs of the Strickland test are separate and independent inquiries. Id. 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.” Timberlake, v. State, 

753 N.E.2d 591, 603 (Ind. 2001) (quoting Strickland, 466 U.S. at 697) reh’g 

denied; cert. denied, 537 U.S. 839 (2002). 

[9] Counsel is afforded considerable discretion in choosing strategy and tactics and 

we will accord those decisions deference. Id. A strong presumption arises that 

counsel rendered adequate assistance and made all significant decisions in the 

exercise of reasonable professional judgment. Id. The Strickland Court 

recognized that even the finest, most experienced criminal defense attorneys 

may not agree on the ideal strategy or the most effective way to represent a 

client. Id. Isolated mistakes, poor strategy, inexperience, and instances of bad 

judgment do not necessarily render representation ineffective. Id. Furthermore, 

we will not speculate as to what may or may not have been advantageous trial 

strategy as counsel should be given deference in choosing a trial strategy which, 

at the time and under the circumstances, seems best. Johnson, 832 N.E.2d at 

997. 

A. Trial Counsel

[10] According to Jervis, his trial counsel was ineffective in three respects: (1)

counsel failed to recommend that he accept the State’s plea deal, (2) counsel 
Court of Appeals of Indiana | Opinion | 87A05-1404-PC-171 | April 7, 2015 Page 6 of 14

failed to object to the State’s destruction of evidence, and (3) counsel failed to 

move for mistrial due to jury bias.

1

 We will address each issue in turn. 

1. Plea Negotiations

[11] Jervis first argues that he would have accepted the State’s plea offer limiting his 

sentence to forty years had he been offered meaningful consultation. During 

Jervis’s post-conviction hearing, counsel stated that when he took the plea offer

to Jervis, he explained the deal and left the decision to Jervis. Jervis argues that 

because the decision was left to him; counsel was ineffective and he was 

prejudiced within the meaning of the Sixth Amendment. 

[12] We first note that the Sixth Amendment is an instrumental right designed to 

ensure a fair trial. Thus, “[t]he right to effective assistance of counsel extends to 

the consideration of plea offers that lapse or are rejected. That right applies to 

 

1

Jervis makes a fourth claim alleging that trial counsel was ineffective for failing to file a motion to dismiss 

after his first trial. Specifically, Jervis argues that because the State presented evidence that sperm cells were 

present in Boyer’s mouth at his first trial, the State’s objection to the admission of Jervis’s evidence that he 

had a vasectomy should have supported a successful motion to dismiss the charges against him. Because 

Jervis fails to provide us with a cogent argument on this issue, it is waived. Ind. Appellate Rule 46(A)(8)(a). 

Moreover, we note that during Jervis’s second trial, counsel asked the court to take judicial notice of the fact 

that Jervis underwent a vasectomy in 1990, which it did. Even with the admission of this evidence, the jury 

still convicted Jervis of murder. 
Court of Appeals of Indiana | Opinion | 87A05-1404-PC-171 | April 7, 2015 Page 7 of 14

all ‘critical’ stages of the criminal proceedings.” Montejo v. Louisiana, 129 U.S. 

2079, 2086 (2009). 

[13] In advancing his claim, Jervis states that the applicable standard for judging 

prejudice in the plea context is explained in Hill v. Lockhart, 474 U.S. 52, 61

(1985). In Hill, the United States Supreme Court held that the two-part test 

adopted in Strickland for evaluating claims of ineffective assistance of counsel

applies to guilty-plea challenges based on ineffective assistance of counsel. Id.

at 57. The language from Hill, standing alone, suggests that prejudice is a 

function of the outcome of the plea proceedings, i.e., if the defendant would not 

have pleaded guilty but for the attorney’s shortcomings, the prejudice prong of 

Strickland is satisfied. Notably, Hill stands for the proposition that a petitioner’s 

guilty plea may be invalid if counsel provided incorrect advice pertinent to the

plea. However, we do not find Hill controlling for the simple reason that the 

case at bar is not a challenge to a guilty plea. Rather in this instance, we rely on 

Missouri v. Frye, 132 S.Ct. 1399, 1409 (2012), and Lafler v. Cooper, 132 S.Ct. 

1376, 1380 (2012), which both addressed issues of ineffective assistance of 

counsel based on improper or insufficient advice leading to the acceptance or 

rejection of a plea deal.

[14] In Frye, the Supreme Court held that trial counsel performed deficiently by 

failing to inform Frye of a written plea offer before it expired. Id. However, the 

Supreme Court reversed the appeals court’s holding that Frye had established 

prejudice and remanded because, even though Frye could show he would have 

accepted the plea offer, the appeals court failed to require Frye to show “a 
Court of Appeals of Indiana | Opinion | 87A05-1404-PC-171 | April 7, 2015 Page 8 of 14

reasonable probability [that] neither the prosecution nor the trial court would 

have prevented the offer from being accepted or implemented.” Id. at 1410. 

The Frye Court observed that there was “strong reason to doubt the prosecution 

and the trial court would have permitted the plea bargain to become final” 

because of an intervening event: Frye was arrested for a new offense. Id. at 

1411.

[15] In Lafler, the Supreme Court determined that Lafler had demonstrated that but 

for counsel’s deficient performance that led to the plea offer’s rejection, there 

was a reasonable probability that he and the trial court would have accepted the 

guilty plea. Id. at 1380. As a result of not accepting the plea and being 

convicted at trial, the defendant received a sentence that was three and one -half 

times greater than he would have received under the plea. Id.

[16] Both Frye and Lafler involve a counsel’s failure to convey a plea offer or 

affirmative advice to reject an offer. Nevertheless, Lafler and Frye seemingly 

require, as a general proposition, that the defendant show that he would have 

accepted the plea and that neither the State nor the trial court would have 

thwarted implementation of the defendant’s plea agreement. Based on our 

examination of the record, we first note that Jervis fails to establish that he 

would have accepted the State’s plea deal. The record shows that Jervis clearly 

and expressly, on many occasions, professed his innocence and had no 

intention of pleading guilty. From his second trial leading up to his direct 

appeal, Jervis advanced an innocence claim. During his post-conviction 
Court of Appeals of Indiana | Opinion | 87A05-1404-PC-171 | April 7, 2015 Page 9 of 14

hearing, Jervis maintained his theory of innocence and the following exchange 

occurred:

[Court]: . . . Jervis, I believe in your post-conviction relief 

pleading that you filed with the court you are asking the 

court to grant you a new trial? Or, in the alternative, 

you’re asking the court to let you accept the State’s plea 

offer that they made apparently in 1995 of 40 years?

[Jervis]: . . . [c]orrect.

[Court]: Okay. And as you sit here today you still 

maintain your innocence . . .?

[Jervis]: That’s correct.

[Court]: [] Indiana Law provides that the court cannot 

accept a guilty plea from someone unless that person 

admits his or her guilt . . . 

****

[Court]: So if [] you maintain your position of innocence 

it wouldn’t matter if you were willing to plead guilty, I 

couldn’t let you. You understand that?

****

[Jervis]: I understand.

[17] (P-C Transcript pp. 76-77). Based on the foregoing dialogue, Jervis fails to 

establish that he would have accepted the State’s plea deal. Moreover, it is also 

obvious from the transcript excerpt that the trial court would not have accepted 

Jervis’s guilty plea over his protestation of innocence. Because Jervis has failed 

to show that he would have accepted the plea deal, and the fact that there is 

sufficient showing that the trial court would not have accepted Jervis’s guilty 

plea, Jervis’s claim of prejudice fails. Having established that Jervis was not 
Court of Appeals of Indiana | Opinion | 87A05-1404-PC-171 | April 7, 2015 Page 10 of 14

prejudiced by counsel, we need not inquire into whether counsel’s performance 

was adequate. See Thacker v. State, 715 N.E.2d 1281, 1284 (Ind. Ct. App. 1999), 

trans. denied.

2. Destruction of Evidence 

[18] Next, Jervis argues that his trial counsel was ineffective for failing to object to 

the State’s destruction of evidence that was potentially exculpatory. Without 

making any specific reference to the record, Jervis baldly asserts that he was 

denied access to the oral swabs taken from Boyer’s mouth during his second 

trial and that the State destroyed the samples before he could have them 

retested. It is Jervis’s ultimate contention that further testing of the oral swabs 

would have “uncovered the identity of another possible perpetrator, thereby 

exonerating” him. (Appellant’s Br. p. 13). 

[19] At the outset of his claim, we find that Jervis has waived this argument by 

failing to present a cogent argument on this issue. Ind. Appellate Rule 

46(A)(8)(a); Moore v. State, 869 N.E.2d 489, 491-92 (Ind. Ct. App. 2007). 

Waiver notwithstanding, we address his claim. 

[20] After reviewing the voluminous trial record, we discern that there were two oral 

swab taken from Boyer. Out of the two, only one oral swab was subjected to 

testing. The record shows that during Jervis’s first trial, the technician who 

conducted the forensic analysis of the oral swab testified that when she 

examined it, she saw three sperm cells. At Jervis’s second trial, her testimony 

changed after reexamining the sample under a powerful microscope and she 
Court of Appeals of Indiana | Opinion | 87A05-1404-PC-171 | April 7, 2015 Page 11 of 14

came to a conclusion that no sperm cells were present. The technician also

explained that that the untested oral swab was set aside to allow for testing if 

“desired by the defense.” (Tr. p. 2137).

[21] At Jervis’s post-conviction hearing, trial counsel testified that he did not believe 

the State destroyed any evidence without first providing access to it. In

addition, the technician testified that the second swab was reserved for Jervis if 

he wanted to test it. 

3. Failure to Move for Mistrial Due to Jury Misconduct 

[22] Jervis also argues that he received ineffective assistance of his trial counsel 

because he failed to move for a mistrial due to jury misconduct. On this claim, 

the State argues that Jervis’s challenge to jury misconduct is barred by res 

judicata because he raised this issue on his direct appeal. We agree. 

[23] As a general rule, when a reviewing court decides an issue on direct appeal, the 

doctrine of res judicata applies, thereby precluding its review in post-conviction 

proceedings. Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000). The 

doctrine of res judicata prevents the repetitious litigation of that which is 

essentially the same dispute. Sweeney v. State, 704 N.E.2d 86, 94 (Ind. 1998). 

And, a petitioner for post-conviction relief cannot escape the effect of claim 

preclusion merely by using different language to phrase an issue and define an 

alleged error. State v. Holmes, 728 N.E.2d 164, 168 (Ind. 2000). “[W]here an 

issue, although differently designated, was previously considered and 

determined upon a criminal defendant’s direct appeal, the State may defend 
Court of Appeals of Indiana | Opinion | 87A05-1404-PC-171 | April 7, 2015 Page 12 of 14

against defendant’s post-conviction relief petition on grounds of prior 

adjudication or res judicata.” Cambridge v. State, 468 N.E.2d 1047, 1049 (Ind.

1984).

[24] Here, we note that this issue of jury misconduct was litigated during Jervis’s

direct appeal. Specifically, on direct appeal Jervis argued that the trial court 

erred in dismissing a juror from the case before deliberations. “Near the end of 

trial but before deliberations began, the bailiff informed the judge that a juror 

had told the bailiff during a lunch break that if the verdict did not turn out a 

‘certain way’ the juror ‘heard’ there might be ‘problems’ for the jury.” Jervis,

679 N.E.2d at 881. The trial court questioned the tainted juror who then

expressed concern for his wife’s safety. Id. Over Jervis’s objection, the trial 

court replaced the juror with an alternate. Id. 

[25] Our supreme court affirmed the trial court’s finding that it acted correctly in 

replacing a possibly tainted juror with an alternate. Id. Because Jervis’s claim 

of jury misconduct was fully litigated on appeal, his efforts to redesignate and 

repackage it as an ineffective of assistance of trial counsel claim is barred by res 

judicata.

B. Appellate Counsel 

[26] Jervis also contends that his appellate counsel was ineffective for failing to raise 

his own incompetence as a trial counsel on direct appeal. Jervis was 

represented by the same attorney at trial and on appeal. We first note that it is 

unreasonable to believe that appellate counsel would raise the question of his 
Court of Appeals of Indiana | Opinion | 87A05-1404-PC-171 | April 7, 2015 Page 13 of 14

own competency on appeal. Askew v. State, 500 N.E.2d 1219, 1220 (Ind.1986), 

reh’g denied; Johnson v. State, 674 N.E.2d 180, 184 (Ind. Ct. App. 1996), reh’g 

denied, trans. denied. We have previously noted the danger in being represented 

by the same counsel both at trial and on appeal. Benson v. State, 780 N.E.2d 

413, 418 n.3 (Ind. Ct. App. 2002), reh’g denied, trans. denied.

[27] Our standard of review for claims of ineffective assistance of appellate counsel 

is the same as for trial counsel’s ineffective assistance. Fisher v. State, 810 

N.E.2d 674, 676 (Ind. 2004). Indiana law recognizes three basic categories for 

claims of appellate counsel’s ineffectiveness: “(1) denial of access to an appeal; 

(2) waiver of issues; and (3) failure to present issues well.” Id. at 677 (citing 

Biehgler v. State, 690 N.E.2d 188, 193-95 (Ind. 1997), cert. denied, 525 U.S. 1021 

(1998)). Here, the second category is the only category applicable and will lead 

to a finding of deficient performance only when the reviewing court determines 

that the omitted issues were significant, obvious, and “clearly stronger than 

those presented.” Id. at 194. (internal quotation marks omitted). “[T]he 

decision of what issues to raise is one of the most important strategic decisions 

to be made by appellate counsel.” Id. at 193. (internal quotation marks 

omitted).

[28] We note that Jervis’s appellate counsel unsuccessfully contested the 

admissibility of several pieces of evidence as well as jury misconduct. 

Nevertheless, Jervis argues that his appellate counsel should have raised his 

own incompetence—specifically his own failure to challenge the State’s

destruction of the evidence, and failure to raise jury misconduct—as grounds 
Court of Appeals of Indiana | Opinion | 87A05-1404-PC-171 | April 7, 2015 Page 14 of 14

for ineffective assistance of trial counsel. As discussed above, we determined 

that Jervis’s unfounded assertion that the State destroyed the oral swab is 

without merit. As for the jury misconduct claim, we have already concluded 

that it is barred by res judicata. Here, Jervis has not demonstrated that appellate 

counsel’s own failure to challenge the State’s destruction of the evidence and 

failure to raise jury misconduct were “clearly stronger” than the issues raised by 

his appellate counsel. See Bieghler, 690 N.E.2d at 194. 

[29] In light of the foregoing, we find that Jervis has not demonstrated that but for 

his appellate counsel’s alleged error, there is a reasonable probability that the 

result of the proceeding would have been different. See McCary v. State, 761 

N.E.2d 389, 392 (Ind. 2002). Therefore, we find that Jervis has failed to show 

that his appellate counsel’s performance was deficient or that he was prejudiced 

as a result of counsel’s performance.

CONCLUSION

[30] Based on the above, we conclude that the post-conviction court properly denied 

Jervis’s petition for post-conviction relief.

[31] Affirmed.

[32] Vaidik, C. J. and Baker, J. concur