Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015 Page 1 of 25

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

Quentin J. Abbott

Carlisle, 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

Quentin J. Abbott,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

October 7, 2015

Court of Appeals Case No.

34A05-1412-PC-604

Appeal from the Howard Circuit 

Court

The Honorable Lynn Murray, Judge

Cause No. 34C01-1203-PC-57

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015 Page 2 of 25

Statement of the Case

[1] Quentin Abbott appeals the post-conviction court’s denial of his amended 

petition for post-conviction relief. Abbott raises four issues for our review:

1. Whether the trial court denied him due process of law.

2. Whether the prosecutor committed misconduct that

denied him due process of law.

3. Whether he received ineffective assistance of trial counsel.

4. Whether he received ineffective assistance of appellate 

counsel.

[2] We affirm.

Facts and Procedural History

[3] The facts underlying Abbott’s conviction for murder, a felony, were set out in 

this court’s decision on his direct appeal:

Mark Methene, a crack cocaine dealer recently released from 

prison, owed Abbott approximately $800. Abbott complained of 

this debt to others. On June 6, 2001, Marcus Herron picked up 

Abbott and Dariel Jones and drove around Kokomo. Abbott 

asked Herron to stop at another person’s home, where he 

retrieved a shotgun and a box of shells. As the trio neared 

Studebaker Park, Abbott loaded the shotgun with a single shell.

Methene was playing dice in the park when Abbott exited the car 

with the shotgun. Herron told Abbott not to do anything stupid. 

Abbott approached Methene, who had money in his hand, and 

demanded repayment of the debt. Methene refused, argued with 
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Abbott, and fled. Methene then turned and faced Abbott, 

stating, “[B]itch, you gonna have to fight me for this money now, 

because you done approached me with a gun; you don’t—you a 

ho, you a bitch[.]” Tr. at 406. Methene ran back toward the dice 

game area. Abbott aimed the shotgun at Methene and fired, 

striking him in the back at close range. Methene later died from 

this wound.

Abbott fled and flagged down his companions. Abbott 

remarked, “I told him to stop playing my money.” Id. at 411. 

Shortly thereafter, Abbott told another person, “I just shot that 

nigger, Mark G, in the back.” Id. at 416. At Abbott’s request, 

Herron drove him to Marion. 

Abbott v. State, No. 34A04-0307-CR-322, slip op. at *2-*3 (Ind. Ct. App. Jan. 30, 

2004) (“Abbott I”).

[4] The State charged Abbott with murder and sought life imprisonment without 

parole. At the jury trial, the State elicited testimony that, on June 6, 2001, 

witnesses saw Abbott at the crime scene pointing a gun at Methene, heard a 

gunshot, and subsequently saw Methene with a gunshot wound. One 

eyewitness, Derrick Green, testified that he saw Abbott shoot Methene. 

Another witness, Dariel Jones, recanted his prior out-of-court sworn statement

to police wherein he identified Abbott as the shooter. Jones said his prior 

statement was false and coerced. Jones’ prior statement was read to the jury 

pursuant to Indiana Rule of Evidence 803(5) as a “recorded recollection” 

exception to the rule against hearsay.
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[5] The jury found Abbott guilty of murder. The jury recommended against a 

sentence of life without parole, and the trial court entered an order denying that 

sentence. On June 4, 2003, after weighing aggravating and mitigating factors, 

the trial court sentenced Abbott to sixty years1executed. The court based the 

five-year enhancement on several aggravating factors, including Abbott’s 

extensive juvenile record and criminal history and his continued criminal 

behavior even after receiving extensive rehabilitation services through the 

juvenile and probation systems. The trial court noted that those aggravating 

factors demonstrated an “escalating pattern of non-compliance with society’s 

laws and rules” and found that Abbott was “in need of rehabilitative and 

correctional treatment that can best be provided by commitment to a penal 

facility.” Direct Appeal App. at 251.

[6] Abbott appealed his conviction on the sole ground that the State failed to negate 

the presence of “sudden heat” beyond a reasonable doubt.2 This court affirmed 

the trial court’s judgment. Abbott I, slip op. at *5. On March 15, 2012, Abbott 

filed his Petition for Post-Conviction Relief, which he subsequently amended. 

In his amended petition, Abbott raised numerous allegations of prosecutorial 

misconduct, trial court abuse of discretion, ineffective assistance of trial 

 

1

 The statutory sentence for murder at the time of Abbott’s sentencing was “a fixed term of fifty (50) to fiftyfive (55) years, with not more than ten (10) years added for aggravating circumstances and not more than ten 

(10) years subtracted for mitigating circumstances.” Ind. Code § 35-50-2-3 (2000).

2

 “The existence of sudden heat is a mitigating factor that reduces what otherwise would be murder . . . to 

voluntary manslaughter.” Ind. Code § 35-42-1-3(b) (2000).
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counsel, and ineffective assistance of his direct-appeal counsel. A hearing on 

Abbott’s petition was held on September 26, 2014. On December 1, 2014, the 

post-conviction court denied Abbott’s petition. This appeal ensued.

Discussion and Decision

Standard of Review

[7] Abbott appeals the post-conviction court’s denial of his amended petition for 

post-conviction relief. Our standard of review is clear:

[The petitioner] bore the burden of establishing the grounds for 

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

Rule 1(5). Because he is now appealing from a negative 

judgment, to the extent his appeal turns on factual issues, [the 

petitioner] must convince this Court that the evidence as a whole 

leads unerringly and unmistakably to a decision opposite that 

reached by the post[-]conviction court. Harrison v. State, 707 

N.E.2d 767, 773 (Ind. 1999) (citing Spranger v. State, 650 N.E.2d 

1117, 1119 (Ind. 1995)). We will disturb the decision only if the 

evidence is without conflict and leads only to a conclusion 

contrary to the result of the post[-]conviction court. Id. at 774.

Post[-]conviction procedures do not afford a petitioner with a 

super-appeal, and not all issues are available. Rouster v. State, 705 

N.E.2d 999, 1003 (Ind. 1999). Rather, subsequent collateral 

challenges to convictions must be based on grounds enumerated 

in the post[-]conviction rules. P C.R. 1(1); Rouster, 705 N.E.2d at 

1003. If an issue was known and available, but not raised on 

direct appeal, it is waived. Rouster, 705 N.E.2d at 1003. If it was 

raised on appeal, but decided adversely, it is res judicata. Id. 

(citing Lowery v. State, 640 N.E.2d 1031, 1037 (Ind. 1994)). If not 

raised on direct appeal, a claim of ineffective assistance of trial 

counsel is properly presented in a post[-]conviction proceeding.
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Woods v. State, 701 N.E.2d 1208, 1215 (Ind. 1998). A claim of 

ineffective assistance of appellate counsel is also an appropriate 

issue for post[-]conviction review. As a general rule, however, 

most free-standing claims of error are not available in a post[-

]conviction proceeding because of the doctrines of waiver and res 

judicata. Some of the same contentions, to varying degrees, may 

be properly presented in support of a claim of ineffective 

assistance of trial or appellate counsel.

Timberlake v. State, 753 N.E.2d 591, 597-98 (Ind. 2001). 

Issue One: Precluded Claims

[8] Because both the claims of prosecutorial misconduct and trial court abuse of 

discretion were known and available, but not raised, in Abbott’s direct appeal, 

those claims are waived. Id. at 597 (citing Rouster v. State, 705 N.E.2d 999, 1003 

(Ind. 1999)). However, Abbott’s claims of ineffective assistance of trial and 

appellate counsel are properly before us for review. Id.

Issue Two: Ineffective Assistance of Trial Counsel

[9] Abbott argues that his trial counsel was ineffective. As our supreme court has 

noted:

This Court reviews claims of ineffective assistance of counsel 

under the two components set forth in Strickland v. Washington, 

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the 

defendant must show that counsel’s performance was deficient.

Id. at 687, 104 S.Ct. 2052. This requires a showing that counsel’s 

representation fell below an objective standard of reasonableness, 

id. at 688, 104 S.Ct. 2052, and that the errors were so serious that 

they resulted in a denial of the right to counsel guaranteed the 
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defendant by the Sixth Amendment, id. at 687, 104 S.Ct. 2052. 

Second, the defendant must show that the deficient performance 

prejudiced the defendant. Id. To establish prejudice, a defendant 

must show that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding 

would have been different. Id. at 694, 104 S.Ct. 2052. A 

reasonable probability is a probability sufficient to undermine 

confidence in the outcome. Id.

Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002).

[10] We will not second-guess trial counsel’s strategy and tactics unless they are so 

unreasonable that they fall outside objective standards. See, e.g., Benefield v. 

State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011). Isolated mistakes, poor 

strategy, inexperience, and instances of bad judgment do not necessarily render 

representation ineffective. Wentz, 766 N.E.2d at 361. And if a claim of 

ineffective assistance of counsel can be disposed of by analyzing the prejudice 

prong alone, we will do so. Benefield, 935 N.E.2d at 797 (citing Wentz, 766 

N.E.2d at 360).

[11] Abbott’s ineffective assistance of trial counsel claims allege that his counsel was 

ineffective for failing to object at certain points in the trial. Specifically, he 

claims his trial counsel was ineffective for: (1) failure to object to the admission 

of Jones’ out-of-court statement; (2) failure to object to the trial court’s

identification of aggravating factors; (3) failure to object to the identification of 

the aggravator that Abbott needed treatment in a penal facility; (4) failure to 

object to the State questioning alluding to robbery; and (5) failure to object to 
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the prosecutor’s statements in closing argument. “In order to prove ineffective 

assistance of counsel due to the failure to object, a defendant must prove that an 

objection would have been sustained if made and that he was prejudiced by the 

failure.” Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001). 

1. Failure to Object to Admission of Out-of-Court Statement

[12] Abbott alleges that his trial counsel was ineffective for failing to thoroughly and 

properly argue his objection to what Abbott refers to as Exhibit 213, which is an

audio recording of State’s witness Dariel Jones’ out-of-court, sworn statement 

given to the police on June 20, 2001. However, we need not address whether 

his counsel’s objection was ineffective because Abbott cannot show that he was 

prejudiced by any such alleged error. In Jones’ June 20 statement he said that 

he saw Abbott pointing a gun at Methene, heard a gunshot, and then saw 

Methene fall to the ground. But there were several other eye-witnesses who 

testified to these same facts. And, although no one but Jones said they heard 

Abbott say that Abbott shot Methene, one eye-witness testified that he actually 

saw Abbott shoot Methene. Thus, there was ample evidence to support the jury 

verdict, and it is highly unlikely, much less probable, that the result of the trial 

 

3

 Although both parties and the post-conviction court refer to Jones’ June 20, 2001, out-of-court statement as 

“Exhibit 21,” it was not actually admitted as an exhibit; rather, it was read into evidence without either the 

recording or a transcription of the recording being admitted as an exhibit. 
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would have been different but for trial counsel’s alleged failure to properly 

object to Jones’ June 20 out-of-court statement. 

2. Failure to Object to Trial Court Findings of Aggravating Factors

[13] Abbott argues that his counsel was ineffective for failing to object to the trial 

court’s enhancement of his sentence based on aggravating factors not found 

beyond a reasonable doubt by a jury as required by Apprendi v. New Jersey, 530 

U.S. 466 (2000). 4 The United States Supreme Court held in Apprendi that any 

fact that increases the penalty for a crime beyond the prescribed statutory 

maximum must be submitted to a jury, and proved beyond a reasonable doubt. 

Id. at 490. Four years later, in Blakely v. Washington, the Court clarified the 

Apprendi rule by stating that “statutory maximum” means

the maximum sentence a judge may impose solely on the basis of 

the facts reflected in the jury verdict or admitted by the 

defendant. . . . In other words, the relevant “statutory 

maximum” is not the maximum sentence a judge may impose 

after finding additional facts, but the maximum he may impose 

without any additional findings.

 

4 Abbott also cites Article 1, Section 19 of the Indiana Constitution as support for this argument. Article 1, 

Section 19 provides: “In all criminal cases whatever, the jury shall have the right to determine the law and 

facts.” Abbott provides no record evidence or legal authority relating to this state constitutional claim, nor 

does he provide any cogent argument as to how this provision applies to his sentencing. Therefore, his claim 

under Art. 1, § 19 is waived. Ind. Appellate Rule 46(A)(8)(a) (“Each contention must be supported by 

citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on.”); Pierce v. 

State, 29 N.E.3d 1258, 1267 (Ind. 2015) (noting failure to support arguments with appropriate citations to 

legal authority and record evidence waives those arguments for our review).
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[14] 542 U.S. 296, 303-304 (2004) (internal citations omitted). Thus, under Blakely, 

the trial court would not have been permitted to enhance Abbott’s sentence 

beyond fifty-five years unless such enhancement was based on facts found by 

the jury beyond a reasonable doubt.5 

[15] Here, however, the trial court did not engage in impermissible fact-finding 

when it enhanced Abbott’s sentence. A defendant’s juvenile record and 

criminal history need not be found by a jury to be utilized by a trial court as an 

aggravating circumstance. Freeze v. State, 827 N.E.2d 600 (Ind. Ct. App. 2005); 

see also Teeters v. State, 817 N.E.2d 275, 279 (Ind. Ct. App. 2004) (holding that 

prior criminal convictions “have already been proven beyond a reasonable 

doubt and are thus exempt from the Apprendi rule”), trans. denied. Likewise, the 

sentencing aggravator that Abbott was in need of correctional or rehabilitative 

treatment that could best be provided by commitment to a penal facility was 

derivative of the criminal history aggravator; thus, it also did not implicate 

Apprendi and Blakely. Teeters, 817 N.E.2d at 279; see also Gillem v. State, 829 

N.E.2d 598, 606 (Ind. Ct. App. 2005) (holding that the aggravating factor of 

need for corrective treatment that can best be provided in a penal facility did not 

 

5 However, prior to Blakely, Apprendi had not been interpreted to prohibit a trial court from finding additional 

facts to enhance a sentence within the statutory maximum, which was sixty-five (65) years with enhancement 

in Abbott’s case. Smylie v. State, 823 N.E.2d 679, 682-683 (Ind. 2005). And the Indiana Supreme Court has 

held Blakely only applies retroactively to cases that were pending at the trial court or on direct appeal at the 

time Blakely was decided, i.e., June 24, 2004. Id. At that time, Abbott had already been convicted and 

sentenced, and his direct appeal had already been decided against him. Thus, Apprendi/Blakely would not 

have prohibited the trial court from finding additional facts to enhance Abbott’s sentence by up to ten years 

in any case. But, for the sake of argument, we nonetheless address Abbott’s Apprendi/Blakely claim.
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implicate Blakely because it was derived from the defendant’s criminal history), 

trans. denied. Thus, the Apprendi/Blakely cases are not implicated here, and trial 

counsel was not ineffective for failing to object on the basis of that authority.

6

3. Failure to Object to Use of Aggravator that Abbott Needs 

Treatment in a Penal Facility

[16] Abbott claims that his trial counsel was ineffective for failing to object to the 

trial court’s finding as an aggravator that Abbott was in need of rehabilitative 

and correctional treatment best provided by commitment to a penal facility.7 In

support of this proposition Abbott cites Prickett v. State, 856 N.E.2d 1203 (Ind. 

2006), in which our supreme court held that a trial court finding that a 

defendant will best be served by treatment in a penal facility must include an 

explanation as to how the enhancement relates to and would achieve the goal 

of correctional and rehabilitative treatment. Id. at 1208. 

[17] But, contrary to Abbott’s assertions, the trial court’s sentencing statement here 

contains exactly such an explanation. The trial court found the aggravator of 

need for treatment in a penal facility only after (1) detailing Abbott’s extensive 

juvenile record and criminal history and his probation violations; (2) noting that 

 

6 Moreover, our supreme court has held that Blakely created a new rule of criminal procedure such that 

neither a trial nor appellate lawyer would be “ineffective for proceeding without making a Blakely claim 

before Blakely was decided.” Smylie, 823 N.E.2d at 690.

7

 Abbott also alleges, incorrectly, that the trial court improperly identified the aggravator that the imposition 

of a lesser sentence would depreciate the seriousness of the crime. The trial court identified no such 

aggravator.
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“[e]fforts to dissuade the Defendant from committing offenses and crimes 

[have] failed, despite he [sic] having received intensive services in probation, 

juvenile detention, and Boys[’] School, and having been incarcerated in jail”; 

and (3) observing that Abbott has an “escalating pattern of non-compliance 

with society’s laws and rules.” Direct Appeal App. at 251. Given this detailed 

explanation of the facts justifying the use of the aggravator, the trial court did 

not err and, thus, trial counsel did not err in failing to object.8 See Gillem, 829 

N.E.2d at 604 (holding that the trial court had properly used the aggravator of 

need for treatment in a penal facility where the court noted that the prior 

attempts of probation and court ordered counseling had been unsuccessful). 

4. Failure to Object to State Questioning Alluding to Robbery

[18] Abbott argues that his trial counsel was ineffective for failing “to object to the 

State repeatedly pursuing a line of questioning that alluded to robbery.” 

Appellant’s Br. at 19. Abbott claims this line of questioning was improper 

because he was never charged with robbery and/or felony murder. However, 

Abbott provides no citation to the record or authority to support his allegation. 

An argument on appeal “must contain the contentions of the appellant on the 

issues presented, supported by cogent reasoning. Each contention must be 

supported by citations to the authorities, statutes, and the Appendix or parts of 

 

8

 Moreover, Abbott’s enhanced sentence would have been proper based on his extensive juvenile delinquent 

and criminal history alone. “[O]nly one valid aggravating circumstance is necessary to support an enhanced 

sentence.” Johnson v. State, 725 N.E.2d 864, 868 (Ind. 2000). 
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the Record on Appeal relied on.” Ind. Appellate Rule 46(A)(8)(a). Failure to 

support arguments with appropriate citations to legal authority and record 

evidence waives those arguments for our review. Pierce v. State, 29 N.E.3d 

1258, 1267 (Ind. 2015). Although we prefer to resolve cases on the merits 

instead of procedural grounds like waiver whenever possible, Abbott’s complete 

lack of citation to anything at all renders his non-compliance with Appellate 

Rule 46(A)(8)(a) so substantial as to prevent our consideration of the issue. Id. 

Abbott has waived this claim.

5. Failure to Object to Prosecutor’s Statements in Closing Argument

[19] Finally, Abbott alleges that his trial counsel was ineffective for failing to object 

to four statements made by the prosecutor in his closing and reply arguments. 

While the prosecutor certainly engaged in zealous advocacy here, none of his 

statements constituted misconduct. And, even if they did, Abbott has provided 

no evidence of prejudice to him from the failure to object to these statements. 

[20] In his initial closing statement, the prosecutor implied that some witnesses 

recanted their earlier statements because “they have to live under the worry and 

threat from repercussions of their testimony here today.” Tr. at 474. Abbott 

claims this statement was impermissible and constitutes prosecutorial 

misconduct to which his counsel should have objected. However, a 

prosecutor’s final argument may “state and discuss the evidence and reasonable 

inferences derivable therefrom so long as there is no implication of personal 

knowledge that is independent of the evidence.” Hobson v. State, 675 N.E.2d 
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1090, 1096 (Ind. 1996) (emphasis added). Here, there was evidence in the 

record that some witnesses were reluctant to testify, that some witnesses had to 

be reminded of prior sworn statements, and that at least one witness had been 

“threatened on the streets” and was afraid of “being known as a snitch.” Tr. at 

424-25. The prosecutor’s statement was a reasonable inference derived from 

that evidence.

[21] In his closing argument, the prosecutor also stated that Abbott had acted 

“coldly, brazenly, [and] calculatingly” in shooting Methene, id. at 476; that 

Abbott had “calculate[d] his move,” id. at 486-87; and that “[t]his is a cold 

blooded murder, period,” id. at 487. Abbott claims it was impermissible for the 

prosecutor to state his opinion in this way. Yet, a final argument “need not 

consist of a bland recitation of the evidence devoid of thought-provoking 

illustration.” Clark v. State, 597 N.E.2d 4, 10 (Ind. Ct. App. 1992), trans. denied. 

Here, the prosecutor was using dramatic language to restate the intent 

requirement for murder, i.e., that the murder was done knowingly and 

intentionally. It is the prosecutor’s job to present a persuasive final argument. 

See, e.g., Bowles v. State, 737 N.E.2d 1150, 1154 (Ind. 2000) (holding trial court 

did not abuse its discretion in allowing prosecutor, in his closing argument, to 

read a poem about a cockroach and compare the defendant to the cockroach); 

Mahal v. State, 496 N.E.2d 568, 572 (Ind. 1986) (finding prosecutor’s closing 

statement to jury that they should “not allow [defendant] to prey upon others” 

and “not allow [defendant] to get to Jason or any other children” was “within 

the ambit of reasonable prosecutorial advocacy”). Moreover, “statements of 
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opinion are not prohibited” in closing arguments. Gregory v. State, 885 N.E.2d 

697, 708 (Ind. Ct. App. 2008), trans. denied. Trial counsel was not ineffective for 

failing to object to these statements by the prosecutor.

[22] In his rebuttal closing argument, the prosecutor told the jury, “if you buy the 

power point presentation and you find Quentin Abbott guilty of Voluntary 

Manslaughter, you have just rendered a verdict that says that he is excused for 

murdering Mark Methene, that he had a reason or an excuse to shoot him 

down in cold blood, period.” Tr. at 485. He also stated to the jury, “if you 

asked Mark Methene whether he was voluntarily manslaughtered, I think he 

would take great exception to that. He would say to you, Ladies and 

Gentlemen, that June 6th Quentin Abbott knowingly and intentionally shot me 

in the back and killed me, period, with no excuses.” Id. at 486. Abbott alleges

these statements constitute prosecutorial misconduct to which his counsel 

should have objected. However, these statements were made in response to 

Abbott’s closing argument that he should have been convicted of voluntary 

manslaughter rather than murder. “Prosecutors are entitled to respond to 

allegations and inferences raised by the defense even if the prosecutor’s 

response would otherwise be objectionable.” Cooper v. State, 854 N.E.2d 831, 

836 (Ind. 2006). 

[23] Moreover, even if the prosecutor’s statements constituted misconduct, Abbott 

has provided no evidence that his trial counsel’s failure to object to these

statements caused him any substantial prejudice. Abbott has not shown that 
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there is a reasonable probability that, but for his trial counsel’s failure to object, 

the result of his trial would have been different. Rather, the record contains 

ample eye-witness testimony that could support the jury’s verdict regardless of 

the prosecutor’s statements in closing argument.

Issue Three: Ineffective Assistance of Appellate Counsel

[24] Abbott raises six claims of ineffective assistance of appellate counsel: (1) failure 

to raise claims of prosecutorial misconduct regarding the line of questioning 

about robbery; (2) failure to raise claims of trial court abuse of discretion for 

refusing to instruct the jury on lesser included offenses of reckless homicide and 

involuntary manslaughter; (3) failure to raise claims regarding sentencing; (4) 

failure to raise claims that Jones’ prior out-of-court statement was inadmissible 

hearsay; (5) failure to raise claims of prosecutorial misconduct in closing 

argument; and (6) failure to adequately argue that there was insufficient 

evidence to prove Abbott did not act under “sudden heat.”

[25] The standard of review for these claims is the same as for allegations of 

ineffective assistance of trial counsel; that is, the defendant must show counsel’s 

performance fell below an objective standard of reasonableness, and, but for the 

deficient performance of counsel, there is a reasonable probability that the result 

of the proceeding would have been different. Hollowell v. State, 19 N.E.3d 263,

269 (Ind. 2014) (citing Strickland, 466 U.S. at 687-88, 694). Ineffective 

assistance of appellate counsel claims generally fall into one of three categories: 

(1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present 
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issues well. Montgomery v. State, 21 N.E.3d 846, 854 (Ind. Ct. App. 2014), trans. 

denied. 

[26] Five of Abbott’s ineffective assistance of appellate counsel claims fall into the 

second category, waiver of issues. “Ineffectiveness [under this category] ‘is very 

rarely found’ because ‘the decision of what issues to raise is one of the most 

important strategic decisions to be made by appellate counsel,’ 

and . . . ‘reviewing courts should be particularly deferential to counsel's 

strategic decision to exclude certain issues in favor of others, unless such a 

decision was unquestionably unreasonable.’” Id. (quoting Bieghler v. State, 690 

N.E.2d 188, 193-94 (Ind. 1997)). In analyzing a waiver-of-issues claim, the 

court first must determine whether the unraised issues were significant and 

obvious upon the face of the record. Id. If so, the court then compares these 

unraised obvious issues to those raised by appellate counsel, finding deficient 

performance only when ignored issues are clearly stronger than those presented.

Id. The court “should not find deficient performance when counsel’s choice of 

some issues over others was reasonable in light of the facts of the case and the 

precedent available to counsel when that choice was made.” Bieghler, 690 

N.E.2d at 194. And, of course, appellant counsel will not be faulted for failing 

to raise what would have been a meritless claim. Overstreet v. State, 877 N.E.2d 

144, 167 (Ind. 2007).

1. Failure to raise claim of prosecutorial misconduct regarding line of 

questioning about robbery 
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[27] Abbott again alleges that it was error for the prosecutor to ask questions about 

robbery because Abbott was not charged with robbery. As noted previously, 

Abbott has waived this claim by failing to provide citation to any authority or 

record evidence as support. Pierce, 29 N.E.3d at 1267; App. R. 46(A)(8)(a).

[28] However, in his ineffective assistance of appellate counsel claim (unlike in his 

claim regarding trial counsel), Abbott does cite to his “6th Amendment right to 

be informed of the nature and cause of the accusation against him and to 

prepare a defense,” claiming he had no notice of being charged with robbery. 

Appellant’s Br. at 23. He also alleges that the “5th Amendment guarantees the 

accused that he will not be tried for offenses not presented in the charging 

information,” and that this right was violated when he was “convicted of a 

crime different than that charged.” Id.

[29] Abbott’s claims regarding “robbery” all stem from Abbott’s mistaken belief that 

he was convicted of robbery and/or felony murder. Abbott provides no citation

to the record in support of this belief and, in fact, the record contains no 

showing that Abbott was ever accused of, charged with, or convicted of 

robbery. The State did question witnesses about Abbott holding money in his 

hand after the shooting of Methene. However, such questioning relates to 

Abbott’s motive for shooting Methene, not to a separate crime of robbery. Of 

course, motive is always relevant for proof of a crime. See, e.g., Turner v. State, 

953 N.E.2d 1039, 1057 (Ind. 2011). Abbott’s appellate counsel was not 
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ineffective for failing to argue prosecutorial misconduct relating to claims of 

robbery.

2. Failure to raise claim of trial court abuse of discretion for refusing to instruct jury 

on lesser included offenses of reckless homicide and involuntary manslaughter.

[30] Abbott alleges that his appellate counsel was ineffective for failing to claim on 

direct appeal that the trial court abused its discretion in refusing to instruct the 

jury on reckless homicide and involuntary manslaughter as lesser included 

offenses of murder. The Indiana Supreme Court has developed a three-part test 

that trial courts are to use when asked to instruct a jury on a lesser included 

offense of the crime charged:

First, the trial court must compare the statute defining the crime 

charged with the statute defining the alleged lesser included 

offense to determine if the alleged lesser included offense is 

inherently included in the crime charged. Id. at 566. Second, if a 

trial court determines that an alleged lesser included offense is 

not inherently included in the crime charged under step one, then 

it must determine if the alleged lesser included offense is factually 

included in the crime charged. Id. at 567. If the alleged lesser 

included offense is neither inherently nor factually included in 

the crime charged, the trial court should not give an instruction 

on the alleged lesser included offense. Id. Third, if a trial court 

has determined that an alleged lesser included offense is either 

inherently or factually included in the crime charged, “it must 

look at the evidence presented in the case by both parties” to 

determine if there is a serious evidentiary dispute about the 

element or elements distinguishing the greater from the lesser 

offense and if, in view of this dispute, a jury could conclude that 

the lesser offense was committed but not the greater. Id. “[I]t is 

reversible error for a trial court not to give an instruction, when 
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requested, on the inherently or factually included lesser offense” 

if there is such an evidentiary dispute. Id.

Webb v. State, 963 N.E.2d 1103, 1106 (Ind. 2012) (citing and quoting Wright v. 

State, 658 N.E.2d 563, 566-67 (Ind. 1995)). 

[31] Involuntary manslaughter is not an inherently included lesser offense of 

murder, as Abbott claims. See e.g., Ketcham v. State, 780 N.E.2d 1171, 1177 

(Ind. Ct. App. 2003), trans. denied. However, it may be a factually included 

lesser offense if the charging information alleges that a battery9 accomplished 

the killing. Id. It is within the State’s “discretion to draft the information in a 

manner that foreclose[s] the opportunity for [the defendant] to seek a conviction 

on a lesser offense” that is not inherently included. Norris v. State, 943 N.E.2d 

362, 369 (Ind. Ct. App. 2011), trans. denied; see also Jones v. State, 966 N.E.2d 

1256, 1258 (Ind. 2012) (noting that, although the State cannot foreclose through 

its drafting of the charging information an instruction on an inherently lesser 

included offense, it may foreclose an instruction on a factually lesser included 

offense). Here, the charging information contains no reference to battery; it 

alleges only that Abbott “did knowingly and intentionally kill [a] human 

being.” Appellant’s App. at 1. Therefore, involuntary manslaughter was not a 

 

9

 Battery is a knowing or intentional touching of another person in a rude, insolent, or angry manner. I.C. § 

35-42-2-1 (2000)
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factually lesser included offense in this case, and appellate counsel did not err in

failing to raise such a claim.

[32] Reckless homicide is an inherently lesser included offense of murder. See, e.g., 

Lane v. State, 997 N.E.2d 83, 87-88 (Ind. Ct. App. 2013), trans. denied. The only 

difference between a reckless homicide10 and a murder11 is that the latter

requires knowing or intentional conduct, while the former requires only reckless 

conduct. Webb, 963 N.E.2d at 1106. Therefore, we must determine if the 

evidence presented at trial by both parties created a serious evidentiary dispute 

about whether Abbott knowingly12 or recklessly killed Methene. Wright, 658 

N.E.2d at 567. 

[33] Here there is no serious evidentiary dispute that Abbott acted knowingly and 

intentionally. The evidence shows that he went to a friend’s house to get a gun, 

got the gun, loaded the gun on the way to confront Methene about money, took 

the gun with him when he got out of the car to confront Methene, got in an 

argument with Methene, and shot Methene in the back as Methene walked 

away from him after the argument. There is no evidence in the record to show 

that Abbott shot Methene with anything less than an awareness of a high 

 

10

 “A person who recklessly kills another human being commits reckless homicide, a Class C felony.” I.C. § 

35-42-1-5 (2000).

11

 “A person who knowingly or intentionally kills another human being . . . commits murder, a felony.” I.C. 

§ 35-42-1-1(1) (2000).

12

 “A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high 

probability that he is doing so.” I.C. § 35-41-2-2(b) (2000). 
Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015 Page 22 of 25

probability that he was engaged in killing. See, e.g., Lane, 997 N.E.2d at 89 

(finding no serious evidentiary dispute that defendant acted knowingly when 

evidence showed he shot victim in the back after a botched drug transaction). 

Thus, the trial court did not abuse its discretion in refusing to instruct the jury 

on reckless homicide, and appellate counsel did not err in failing to raise such a 

claim.

3. Failure to raise claims regarding sentencing

[34] Abbott alleges that his appellate counsel was ineffective for failing to appeal his 

sentence under Indiana Appellate Rule 7(B).

13

 However, Abbott cites no 

authority or record evidence in support of his Rule 7(B) claim. Nor does he 

present any cogent argument as to why the sentence is inappropriate in light of 

the nature of the offense and his character, let alone why a Rule 7(B) issue 

would have been obviously stronger than the issues actually raised in his direct 

appeal. See Montgomery, 21 N.E.3d at 854. Therefore his Rule 7(B) claim is 

waived. App. R. 46(A)(8)(a); see Pierce, 29 N.E.3d at 1267.

[35] Abbott also alleges that the sentence was “unreasonable” because the jury, not 

the judge, should have weighed the aggravating and mitigating factors. 

 

13

 Rule 7(B) allows us to revise a sentence if we find that the sentence is inappropriate in light of the nature 

of the offense and the character of the offender. However, “sentencing is principally a discretionary function 

in which the trial court’s judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d 

1219, 1222 (Ind. 2008).
Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015 Page 23 of 25

Appellant’s Br. 28-29. For the reasons noted above, this apparent 

Apprendi/Blakely claim fails. 

[36] Finally, Abbott alleges that his appellate counsel erred by not arguing that the 

trial court abused its discretion in considering the aggravating factor that Abbott 

is in need of treatment best provided in a penal facility. This claim fails for the 

same reason it failed as to the alleged ineffective assistance of trial counsel, i.e., 

the trial court’s sentencing statement explained why Abbott’s extensive juvenile 

record and criminal history justified the use of this aggravator and, therefore, 

the trial court did not err. 

[37] Abbott’s ineffective assistance of appellate counsel claims related to sentencing 

are without merit.

4. Failure to raise claim that Jones’ prior out-of-court statement was 

inadmissible hearsay

[38] Abbott claims his appellate counsel was ineffective for failing to raise the

alleged inadmissibility of Jones’ January 20, 2001, prior out-of-court statement. 

However, as noted above, Abbott has not demonstrated prejudice as a result of 

the alleged error in the admission of Jones’ out of court statement. Abbott 

cannot show that, but for that error, there is a reasonable probability that the 

result of the proceedings would have been different. See, e.g., Bethea v. State, 983 

N.E.2d 1134, 1139 (Ind. 2013) (holding that, even if appellate counsel’s failure 

to raise a claim was unreasonable, the defendant still must demonstrate a 

reasonable probability that the outcome of the direct appeal would have been 
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different). Thus, his appellate counsel was not ineffective for failing to raise this

argument. 

5. Failure to raise claim of prosecutorial misconduct in closing argument

[39] As noted previously, none of the prosecutor’s statements in closing argument 

constituted misconduct; therefore, appellate counsel cannot be faulted for 

failing to raise this claim on direct appeal. Moreover, even if one or all of the 

prosecutor’s statements constituted misconduct, Abbott has failed to show 

prejudice from those statements. The record contains ample evidence upon 

which the jury could have relied for its verdict, regardless of the propriety of the 

prosecutor’s closing arguments.

6. Failure to adequately argue that there was insufficient evidence to prove Abbott

did not act under “sudden heat”

[40] Abbott’s final claim of inadequate assistance of appellate counsel derives from 

the third category for such claims, i.e., failure to present issues well. 

Montgomery, 21 N.E.3d at 854. As our supreme court has noted, claims in this 

category are the most difficult for defendants to advance and for reviewing 

tribunals to support. Bieghler, 690 N.E.2d at 195. “[T]his is so because such 

claims essentially require the reviewing court to reexamine and take another 

look at specific issues it has already adjudicated to determine ‘whether the new 

record citations, case references, or arguments would have had any marginal 

effect on their previous decision.’” Hollowell v. State, 19 N.E.3d 263, 270 (Ind. 

2014) (quoting Beighler, 690 N.E.2d at 195).
Court of Appeals of Indiana | Memorandum Decision 34A05-1412-PC-604 | October 7, 2015 Page 25 of 25

[41] Abbott claims that, had his appellate counsel argued that Jones’ June 20, 2001,

out-of-court statement was inadmissible hearsay, there would have been no 

basis for the finding that Abbott acted intentionally instead of “with sudden 

heat.” As we have previously explained, Abbott is mistaken that the decision in 

this case would have been any different had that statement been excluded. 

There was ample evidence in the record besides the June 20 statement to 

support the finding that Abbott acted intentionally and not “with sudden 

heat.”14 

Conclusion

[42] In sum, neither Abbott’s trial nor appellate counsel was ineffective in his 

representation of Abbott; therefore, we affirm the judgment of the postconviction court.

[43] Affirmed.

Kirsch, J., and Barnes, J., concur.

 

14

 Moreover, Abbott’s only claim as to why he acted with sudden heat is because Methene insulted him and 

then walked away from him in front of other people. However, as we held in the direct appeal, mere words 

or gestures of disrespect are not sufficient provocation to precipitate sudden heat. Abbott I, slip op. at *4-5

(citing Gregory v. State, 540 N.E.2d 585, 593 (Ind. 1989)).