Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015 Page 1 of 20

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

Joel Rowley

Michigan City, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Michael Gene Worden

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Joel Rowley,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

April 20, 2015

Court of Appeals Case No.

49A05-1408-PC-413

Appeal from the Marion Superior 

Court.

The Honorable Marc T. Rothenberg, 

Judge.

The Honorable Amy J. Barbar, 

Magistrate.

Cause No. 49G02-1003-PC-017433

Sharpnack, Senior Judge

Statement of the Case

[1] Joel Rowley appeals from a negative judgment entered when the postconviction court denied his petition for post-conviction relief. A jury convicted 

Rowley of murder and Rowley pleaded guilty to the habitual offender
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enhancement. He argues that he received ineffective assistance of trial counsel 

and direct appeal counsel. We affirm.

Issues

[2] Rowley presents several issues for our review, which we restate as the following 

broader issues, addressed with more specificity below:

I. Whether the post-conviction court failed to address one of 

the issues raised in Rowley’s petition for post-conviction 

relief.

II. Whether Rowley received ineffective assistance of trial 

counsel.

III. Whether Rowley received ineffective assistance of 

appellate counsel.

Facts and Procedural History

[3] The facts supporting Rowley’s conviction for murder were set forth in our 

memorandum decision on direct appeal. See Rowley v. State, 49A04-1102-CR34, 952 N.E.2d 889 (Ind. Ct. App. August 26, 2011), trans. denied. Those facts 

are as follows:

In the early morning hours of March 5, 2010, Rowley and some 

of his acquaintances were involved in a bar fight in Indianapolis. 

Rowley left the altercation and went to his van, but instead of 

entering his van he went back into the fray and shot Leon Pepper 

in the back. Rowley then walked back to his van and drove 

away. Pepper died before emergency personnel could arrive.

Slip op. p. 1.
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[4] At trial, Rowley tendered a self defense instruction as noted in our opinion on 

his direct appeal. 

The defense of self-defense is defined by law as follows:

A. A person is justified in using reasonable force against another 

person to protect himself or a third person from what he 

reasonably believes to be the imminent use of unlawful force. 

However, a person is justified in using deadly force only if he 

reasonably believes that that force is necessary to prevent serious 

bodily injury to himself or a third person or the commission of a 

forcible felony. No person in this State shall be placed in legal 

jeopardy of any kind whatsoever for protecting himself, his 

family or a third person by reasonable means necessary.

B. Notwithstanding the above, a person is not justified in using 

force if:

1. the person is committing or is escaping after the commission of 

a crime[;]

2. the person provokes unlawful action by another person with 

intent to cause bodily injury to the other person; or

3. the person has entered into combat with another person or is 

the initial aggressor unless the person withdraws from the 

encounter and communicates to the other person the intent to do 

so and the other person nevertheless continues or threatens to 

continue unlawful action[.]

The State has the burden of disproving this defense beyond a 

reasonable doubt.

Appellant’s App. at 170. The trial court accepted Rowley’s 

tendered instruction as the court’s final instruction number four. 

Id. at 156. The jury found Rowley guilty as charged and the trial 

court entered its judgment of conviction and sentence 

accordingly. 

Id.
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[5] On direct appeal, Rowley challenged the adequacy of the self defense 

instruction. Id. We affirmed Rowley’s conviction after concluding that the 

error, if any, was invited error because Rowley’s counsel had tendered the 

challenged instruction. Id. 

[6] Rowley filed a petition for post-conviction relief raising claims of ineffective 

assistance of trial counsel. With respect to trial counsel, Rowley alleged that his 

counsel was ineffective for failing to include in the self defense instruction 

“standpoint of the defendant” language and for failing to incorporate that in the 

closing argument at trial. He also alleged trial counsel was ineffective for failing 

to interview a witness, Officer Derrick Hannon, and failing to call him as a 

witness as trial. He also claimed that trial counsel was ineffective for failing to 

advise him or his friends to surrender the gun used in the shooting to the police 

department or the prosecutor’s office. 

[7] With respect to appellate counsel, Rowley alleged ineffective assistance for 

failing to include a challenge to the trial court’s ruling precluding Rowley from 

presenting testimony about the victim’s reputation for carrying a gun. 

[8] Evidentiary hearings were held on May 22, 2013, October 23, 2013, and 

November 6, 2013. The post-conviction court issued an order including 

findings of fact and conclusions of law ultimately denying Rowley’s petition for 

post-conviction relief on July 10, 2014. Rowley now appeals.
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Discussion and Decision

Standard of Review for Post-Conviction Relief Proceedings

[9] “The petitioner in a post-conviction proceeding bears the burden of establishing 

grounds for relief by a preponderance of the evidence.” Campbell v. State, 19 

N.E.3d 271, 273-74 (Ind. 2014). “When appealing the denial of post-conviction 

relief, the petitioner stands in the position of one appealing from a negative 

judgment.” Id. at 274. “To prevail on appeal from the denial of post-conviction 

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.” Id. “Further, the post-conviction court in this case made findings of 

fact and conclusions of law in accordance with Indiana Post-Conviction Rule 

1(6).” Id. “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.’” Id. (quoting Ben-Yisrayl v. State, 729 

N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted)). 

Standard of Review for Assistance of Counsel

[10] Rowley raises issues involving the assistance of both trial and appellate counsel. 

“The standard of review for claims of ineffective assistance of appellate counsel 

is the same as 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.” Hollowell v. State, 19 N.E.3d 263, 269 (Ind. 2014). “When 
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evaluating an ineffective assistance of counsel claim, we apply the two-part test 

articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984).” Id. “To satisfy the first prong, ‘the defendant must show 

deficient performance: representation that fell below an objective standard of 

reasonableness, committing errors so serious that the defendant did not have 

the ‘counsel’ guaranteed by the Sixth Amendment.’” Id. (quoting McCary v. 

State, 761 N.E.2d 389, 392 (Ind. 2002) (citing Strickland, 466 U.S. at 687-88)). 

“To satisfy the second prong, ‘the defendant must show prejudice: a reasonable 

probability (i.e. a probability sufficient to undermine confidence in the 

outcome) that, but for counsel’s errors, the result of the proceeding would have 

been different.’” Id. (quoting McCary, 761 N.E.2d at 392 (citing Strickland, 466 

U.S. at 694)). If our review can dispose of an ineffective assistance claim on the 

prejudice prong, we need not address whether counsel’s performance was 

deficient. Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). “There is a strong 

presumption that counsel rendered adequate service.” Bethea v. State, 983 

N.E.2d 1134, 1139 (Ind. 2013).

I. Post-Conviction Court Omission

[11] Rowley claims that the post-conviction court failed to address an issue raised by 

Rowley in his petition for post-conviction relief. He alleged ineffective 

assistance of trial counsel for failing to interview Officer Derrick Hannon and 

for failing to call Officer Hannon as a witness at trial. 
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[12] Indiana Post-Conviction Rule 1(6) explicitly requires that post-conviction 

courts make “specific findings of fact and conclusions of law on all issues 

presented . . . .” Where the post-conviction court fails to enter findings of fact 

and conclusions of law on an issue presented in a petition for post-conviction 

relief, remand for the entry of findings and conclusions on that issue is 

appropriate. Dowdell v. State, 720 N.E.2d 1146, 1152 (Ind. 1999). This is so, 

because “[t]he principal purpose of findings of fact ‘is to have the record show 

the basis of the trial court’s decision so that on review the appellate court may 

more readily understand the former’s view of the controversy.’” Id. (quoting 

Love v. State, 257 Ind. 57, 59, 272 N.E?.2d 456, 458 (1971) (quoting 3 William 

F. Harvey, Indiana Practice 426 (1970))). “Findings of fact must be ‘sufficient to 

enable this Court to dispose of the issues upon appeal.’” Id. (quoting Taylor v. 

State, 472 N.E.2d 891, 892 (Ind. 1985)).

[13] Here, the post-conviction court failed to address the issue in its order. Rowley 

correctly notes this error in his statement of the issues, but fails to present any 

argument on the topic in his brief. “Failure to present a cogent argument for 

such an issue operates as a waiver of that issue on appeal.” Bieghler v. State, 481 

N.E.2d 78, 89 (Ind. 1985). “Errors alleged by defendant but not presented and 

argued in the argument section of [the] defendant’s brief are waived.” Guardiola 

v. State, 268 Ind. 404, 406, 375 N.E.2d 1105, 1107 (1978). “It is the 

responsibility of the defendant to support his contentions with appropriate 

citations to the record as well as to legal authorities. Without such assistance, 
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[a court on review] cannot determine the merits of his claim and will consider it 

waived.” Bieghler, 481 N.E.2d at 89.

[14] “Nevertheless, an appellate court may affirm a trial court’s judgment on any 

theory supported by the evidence.” Dowdell, 720 N.E.2d at 1152. Therefore, 

we will review the record and consider the merits of Rowley’s claim in our 

discussion of the performance of his trial counsel. 

II. Ineffective Assistance of Trial Counsel

A. Self Defense Instruction

[15] Rowley argues that his trial counsel was ineffective by failing to tender a self 

defense instruction that highlighted the requirement that when evaluating a self

defense claim the evidence should be viewed from the perspective or standpoint 

of the defendant. In conjunction with that argument, he claims that trial 

counsel should have highlighted that subjective component in closing 

argument.

[16] Here, the self defense instruction set forth above essentially tracks the pertinent 

language of the self defense statute. Ind. Code §35-41-3-2 (2006). In

Washington v. State, 997 N.E.2d 342, 349 (Ind. 2013), the Supreme Court reemphasized the holding that the “self-defense statute requires both a subjective 

belief that force was necessary to prevent serious bodily injury and that a 

reasonable person under the circumstances would have such an actual belief.” 

Therefore, self defense comprises both a subjective and objective component. 

Id. In considering “standpoint of the defendant” language, the Supreme Court 
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has emphasized that “the jury should examine circumstances as they appeared 

to the defendant. But while the defendant’s own account is critically relevant, 

the stand is still the reasonableness of the belief of the defendant.” Id. 

“Focusing on the ‘standpoint of the defendant’ means at least two things: (1)

the trier of fact must consider the circumstances as they appeared to the 

defendant, rather than to the victim or anyone else; and (2) the defendant’s own 

account, although not required to be believed, is critically relevant testimony.” 

Id. at 350.

[17] Here, if trial counsel had tendered an instruction focusing solely on the 

defendant’s subjective belief, the instruction, while correct, would not have 

been a complete statement of the law. Rowley did not present the postconviction court with an instruction he believes should have been given. 

Therefore, it is impossible to evaluate whether the instruction he favors is 

accurate and appropriate.

[18] Further, the instruction that was given did instruct the jury that the standard to 

be used was what Rowley reasonably believed at the time of the infliction of the 

injury. The post-conviction court noted that the tendered instruction was 

nearly identical to the instruction the trial court intended to give, but did not 

because Rowley’s was better and more appropriate. This was so because 

Rowley’s instruction added language regarding the protection of third persons, 

which was at the heart of Rowley’s defense. 
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[19] Rowley’s trial counsel testified that he believed that during closing argument he 

did highlight the “standpoint of the defendant.” The record reflects that trial 

counsel argued to the jury that Rowley acted reasonably and was justified in 

shooting the victim because he believed the victim was going to shoot his 

friend. Therefore, trial counsel did effectively inform the jury that the proper 

perspective from which to evaluate the evidence was the defendant’s viewpoint. 

Rowley’s counsel correctly argued the law to the jury. See id. at 348-49. 

Rowley has not met his burden of establishing that he was denied effective 

assistance of trial counsel. 

B. Failure to Investigate

[20] Rowley maintains that his trial counsel was ineffective by failing to interview 

Officer Hannon and by failing to call him as a witness at trial. Rowley argues 

that had trial counsel interviewed Officer Hannon he would have secured 

testimony conflicting with the State’s presentation of how Rowley’s jogging suit 

was preserved, and that Rowley was intoxicated at the time of his arrest and 

subsequent statement to police. Rowley claims that his trial counsel should 

have used the intoxication evidence to suppress Rowley’s statement to police in 

which he claimed not to be the shooter. That statement, which Rowley hoped 

to characterize as involuntary due to his intoxication, was inconsistent with 

Rowley’s claim of self defense. 

[21] The Supreme Court has explained appellate review of claims alleging a failure 

to investigate as follows:
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With the benefit of hindsight, a defendant can always point to 

some rock left unturned to argue counsel should have 

investigated further. The benchmark for judging any claim of 

ineffectiveness must be whether counsel’s conduct so 

undermined the proper functioning of the adversarial process that 

it deprived the defendant of a fair trial. Strickland, 466 U.S. at 

686, 104 S. Ct. 2052. Strickland does not require counsel to 

investigate every conceivable line of mitigating evidence no 

matter how unlikely the effort would be to assist the defendant at 

sentencing. Wiggins v. Smith, 539 U.S. 510, 533, 123 S. Ct. 2527, 

156 L. Ed. 2d 471 (2003). This would interfere with the 

constitutionally protected independence of counsel at the heart of 

Strickland. Id. Rather, we review a particular decision not to 

investigate by looking at whether counsel’s action was reasonable 

in light of all the circumstances. Id. at 521-22, 123 S. Ct. 2527. 

In other words, counsel has a duty to make a reasonable 

investigation or to make a reasonable decision that the particular 

investigation is unnecessary. Id. at 521, 123 S. Ct. 2527. A 

strategic choice not to present mitigating evidence made after 

thorough investigation of law and relevant facts is virtually 

unchallengeable, but a strategic choice made after less than 

complete investigation is challengeable to the extent that 

reasonable professional judgment did not support the limitations 

on the investigation. Id. Thus, the Court’s principal concern is 

not whether counsel should have presented more in mitigation 

but whether the investigation supporting their decision not to 

introduce mitigating evidence was itself reasonable. Id. at 523, 

123 S. Ct. 2527. 

Ritchie v. State, 875 N.E.2d 706, 719-20 (Ind. 2007). 

[22] Rowley contended that Officer Hannon, the officer to whom he surrendered,

informed him that the police would want his jacket and his van as part of their 

investigation, and that he told Officer Hannon where he would leave his entire 

jogging suit worn by him at the time of the crime and where his van would be 
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located. Rowley claimed that he told trial counsel what he had done with the 

jogging suit and his van and asked counsel to contact Officer Hannon. Rowley 

stated that trial counsel informed him that he was unable to locate Officer 

Hannon. At the evidentiary hearing, trial counsel testified that he did not recall 

that there was an issue at trial regarding Rowley’s disposition of his clothing, 

and stated that he did not recall speaking with Rowley about his clothing. 

[23] Officer Hannon testified during the evidentiary hearing. He stated that he 

attempted to avoid discussing the case with Rowley while transporting him to 

the police station because he was not the investigating officer. Further, he 

testified that he could not recall advising Rowley about what to do with the 

clothing he had been wearing at the time of the crime.

[24] Other than Rowley’s own testimony at the evidentiary hearing, there was no 

evidence presented demonstrating that an interview of Officer Hannon would 

have produced any relevant testimony about the clothing Rowley wore that 

would have been any benefit to his defense. Furthermore, Rowley did not meet 

his burden of establishing that had trial counsel interviewed Officer Hannon the 

outcome of his trial would have been any different. 

[25] Similarly, Rowley has not met his burden of presenting evidence to support his 

claim that had trial counsel interviewed Officer Hannon he would have gleaned 

evidence to support a motion to suppress Rowley’s statement to police. Rowley 

argues now that trial counsel should have moved to suppress his statement that 

he was not the shooter on the ground that it was involuntary due to Rowley’s 
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intoxication. That statement was at odds with the trial strategy that he acted in 

self defense. “To prevail on an ineffective assistance of counsel claim based 

upon counsel’s failure to file motions on a defendant’s behalf, the defendant 

must demonstrate that such motions would have been successful.” Wales v. 

State, 768 N.E.2d 513, 523 (Ind. Ct. App. 2002), trans. denied. 

[26] Here, Rowley claimed that his statement to police was involuntary because he 

was intoxicated at the time. “Statements are inadmissible due to intoxication 

only when an accused is intoxicated to the point that he is unaware of what he 

is saying.” Wilkes v. State, 917 N.E.2d 675, 680 (Ind. 2009). “Intoxication to a 

lesser degree goes only to the weight to be given the statement.” Id. 

[27] Rowley testified at the evidentiary hearing that he drank two or three double 

shots of Absolut Vodka and a Corona, and that by the time he left the bar with 

Officer Hannon, he was feeling the effects of his alcohol consumption. Officer 

Hannon testified that although he allowed Rowley to finish his drink before 

escorting him to the police station for questioning, he did not observe any signs 

that Rowley was intoxicated. 

[28] “Whether a witness’ testimony at a post-conviction hearing is worthy of credit 

is a factual determination to be made by the trial judge who has the opportunity 

to see and hear the witness testify.” State v. McCraney, 719 N.E.2d 1187, 1191 

(Ind. 1999). “It is not within an appellate courts province to replace the trial 

court’s assessment of credibility with its own.” Id. Since the post-conviction 
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court denied Rowley’s petition, a reasonable inference is that the postconviction court found Officer Hannon’s testimony more credible.

[29] Rowley’s testimony did not establish that he was so intoxicated that he did not 

know what he was saying when he was interviewed by police officers. In 

addition, his trial testimony did not indicate that he was claiming that he was 

intoxicated when speaking with police officers. Therefore, Rowley has not 

established that a motion to suppress his statement to police as involuntary due 

to intoxication would have been granted if raised. Consequently, Rowley has 

not established that trial counsel’s failure to interview Officer Hannon and then 

call him as a witness at trial prejudiced his defense. We find no error here. 

C. Failure to Advise

[30] Rowley claims that his trial counsel was ineffective by failing to advise him to 

personally turn over the murder weapon or to have relatives do so on his behalf. 

Because the prejudice part of this test is dispositive of this issue, we do not 

address the alleged deficiency in trial counsel’s performance.

[31] Rowley testified that he had discussed turning over the murder weapon to 

authorities with his trial counsel. He claimed that trial counsel informed him 

that if the State did not request it, there was no reason to turn over the weapon. 

Trial counsel testified that he had no recollection of a conversation with Rowley 

about the weapon. 

[32] Had counsel advised Rowley to surrender the gun, this conduct would not have 

refuted the State’s contention that Rowley’s conduct—leaving the scene of the 
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murder rather than staying and immediately turning the gun over to police—

constituted evidence of Rowley’s guilty conscience, instead of the righteous 

defense of a friend. If Rowley had surrendered the weapon to authorities after 

consulting with his attorney, the State could have argued that he fled the scene 

of the murder with the murder weapon and only surrendered it upon the advice 

of counsel.

[33] This would not have altered the outcome of Rowley’s trial. The State 

introduced a video tape showing Rowling shooting the unarmed victim in the 

back. Rowley has not demonstrated how trial counsel’s failure to advise him to 

turn the gun over to police prior to trial would have produced a different 

outcome at trial. We find no prejudice here. 

III. Ineffective Assistance of Appellate Counsel

[34] Rowley claims that he received ineffective assistance of appellate counsel. “As 

for appellate counsel, ineffective assistance claims ‘generally fall into three basic 

categories: (1) denial of access to an appeal, (2) waiver of issues, and (3) failure 

to present issues well.’” Garrett v. State, 992 N.E.2d 710, 724 (Ind. 2013) 

(quoting Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006)). Here, Rowley’s 

allegation falls under the second category, waiver of issues.

[35] “To show that counsel was ineffective for failing to raise an issue on appeal, the 

defendant must overcome the strongest presumption of adequate assistance, 

and judicial scrutiny is highly deferential.” Manzano v. State, 12 N.E.3d 321, 
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329 (Ind. Ct. App. 2014) (citing Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 

2006)), trans. denied. Furthermore,

To evaluate the performance prong when counsel failed to raise 

issues upon appeal, we apply the following test: (1) whether the 

unraised issues are significant and obvious from the face of the 

record and (2) whether the unraised issues are “clearly stronger” 

than the raised issues. If the analysis under this test demonstrates 

deficient performance, then we examine whether “the issues 

which . . . appellate counsel failed to raise, would have been 

clearly more likely to result in reversal or an order for a new 

trial.” Ineffective assistance is very rarely found in cases where a 

defendant asserts that appellate counsel failed to raise an issue on 

direct appeal because the decision of what issues to raise is one of 

the most important strategic decisions to be made by appellate 

counsel.

Id. at 329-30. (internal quotes omitted).

[36] Rowley claims that his appellate counsel was ineffective for failing to present 

any argument challenging the trial court’s ruling before trial that Rowley could 

not present evidence of the victim’s reputation for carrying a gun. Rowley’s 

direct appeal counsel testified at one of the evidentiary hearings that she did not 

recall having a strategic reason for not raising the issue on direct appeal. 

[37] First, we note that the issue was not preserved for direct appellate review. “A 

pre-trial hearing or a motion in limine is appropriate to determine the 

admissibility of evidence outside of the jury’s hearing.” Mitchell v. State, 742 

N.E.2d 953, 956 (Ind. 2001). “However, in order to preserve an error for 

appellate review, a party must do more than challenge the ruling on a motion in 

limine.” Id. “[T]o raise the question of error, the evidence must be offered at 
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trial to give the trial court an opportunity to rule on its admissibility at that 

time.” Id. (quoting Tyra v. State, 506 N.E.2d 1100, 1103 (citations omitted)). A 

defendant who fails to offer the evidence excluded at the hearing prior to trial 

has not preserved the error for appellate review. Id. 

[38] “To reverse a trial court’s decision to exclude evidence, there must have been 

error by the court that affected the defendant’s substantial rights and the 

defendant must have made an offer of proof or the evidence must have been 

clear from the context.” Harman v. State, 4 N.E.3d 209, 215 (Ind. Ct. App. 

2014), trans. denied. “A party traditionally makes an offer to prove after the trial 

court has sustained an objection to the admission of the party’s evidence.” Id.

at 216. “However, it may also be made before the trial court’s ruling on an 

objection in order to aid in the admissibility ruling.” Id. Consequently, because 

Rowley did not attempt to offer proof of the handgun reputation evidence, the 

error was not preserved for appellate review. “Appellate counsel cannot be 

faulted for failing to raise what would have been a meritless claim.” Overstreet v. 

State, 877 N.E.2d 144, 167 (Ind. 2007). 

[39] A fundamental error argument was unavailable to appellate counsel. 

“Fundamental error is an extremely narrow exception to the waiver rule where 

the defendant faces the heavy burden of showing that the alleged errors are so 

prejudicial to the defendant’s rights as to ‘make a fair trial impossible.’” Ryan v. 

State, 9 N.E.3d 663, 668 (Ind. 2014) (quoting Benson v. State, 762 N.E.2d 748, 

756 (Ind. 2002)). “In other words, to establish fundamental error, the 

defendant must show that, under the circumstances, the trial judge erred in not 
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sua sponte raising the issue because alleged errors (a) ‘constitute clearly blatant 

violations of basic and elementary principles of due process’ and (b) ‘present an 

undeniable and substantial potential for harm.’” Id. “The element of such 

harm is not established by the fact of ultimate conviction but rather ‘depends 

upon whether [the defendant’s] right to a fair trial was detrimentally affected by 

the denial of procedural opportunities for the ascertainment of truth to which he 

otherwise would have been entitled.’” Id. Our Supreme Court has stressed 

“that ‘[a] finding of fundamental error essentially means that the trial judge 

erred . . . by not acting when he or she should have. . . .’” Id. (quoting Whiting 

v. State, 969 N.E.2d 24, 34 (Ind. 2012)). “Fundamental error is meant to permit 

appellate courts a means to correct the most egregious and blatant trial errors 

that otherwise would have been procedurally barred, not to provide a second 

bite at the apple for defense counsel who ignorantly, carelessly, or strategically 

fail to preserve an error.” Id.

[40] Rowley has failed to argue or demonstrate that the exclusion of this evidence 

would have constituted fundamental error. Therefore, Rowley has not met his 

burden of demonstrating that this unpreserved issue is clearly stronger than the 

issue raised in his direct appeal or that its admission would likely have 

produced a different result at trial. It is reasonable to conclude that appellate 

counsel was reasonable in not raising this claim in Rowley’s direct 

appeal. 

[41] A strategic decision not to present the issue finds support in case law holding 

that “[w]here character evidence is introduced to show the victim’s violent 
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nature and to show that the defendant had reason to fear the victim, a 

foundation is required before that evidence is admissible. That foundation 

consists of a showing that the defendant had knowledge of the specific bad acts 

communicated to him prior to the [crime].” Norris v. State, 498 N.E.2d 1203, 

1205 (Ind. 1986). “Indiana’s general rule prohibits proof of the character of the 

deceased.” Phillips v. State, 550 N.E.2d 1290, 1297 (Ind. 1990), abrogated on 

other grounds by Fry v. State, 990 N.E.2d 429 (Ind. 2013)). “Where a self-defense 

claim is raised, however, there is an exception.” Id. “Evidence of specific bad 

acts by the victim is then admissible to show that the victim had a violent 

character and that the defendant had reason to fear the victim, but it is 

incumbent on the defendant to make a foundational showing that he had 

knowledge of those specific bad acts prior to the [crime] before such evidence 

may be admitted.” Id.

[42] Rowley has not presented evidence at trial or at his post-conviction proceeding 

that at the time of the murder he had any knowledge that the victim had a 

reputation for carrying a gun or a reputation for violence. The record reflects 

that Rowley had never met the victim and did not know anything about him 

prior to the night of the shooting. Therefore, Rowley could not have met the 

foundational prerequisite for the admission of that evidence. Thus, the 

evidence was irrelevant to Rowley’s claim of self defense and was properly 

excluded by the trial court.
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Conclusion

[43] Rowley has not met his burden of establishing that the post-conviction court’s 

omission warrants a remand of Rowley’s case, that his trial counsel was 

ineffective, or that his appellate counsel was ineffective. In light of the 

foregoing, we affirm the judgment of the post-conviction court.

[44] Affirmed. 

Bailey, J., and Robb, J., concur.