Court of Appeals of Indiana | Memorandum Decision 19A-PC-1177 | October 29, 2019 Page 1 of 17

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.

ATTORNEYS FOR APPELLANT

Stephen T. Owens

Public Defender of Indiana

Meggan E. Smith

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ellen H. Meilaender

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Brandon Hicks,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent

October 29, 2019

Court of Appeals Case No.

19A-PC-1177

Appeal from the Marion Superior 

Court

The Honorable Sheila A. Carlisle, 

Judge

Trial Court Cause No.

49G03-1509-PC-34015

Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1177 | October 29, 2019 Page 2 of 17

[1] Brandon Hicks appeals the denial of his petition for post-conviction relief, 

arguing that the post-conviction court erroneously determined that he did not 

receive the ineffective assistance of appellate counsel. Finding no error, we 

affirm.

Facts

[2] The underlying facts, as described by this Court in Hicks’s direct appeal, are as 

follows:

During the evening of September 22, 2012, Hicks was at Bubba’s 

Bar & Grill (Bubba’s) in Indianapolis, Indiana, with friends. On 

that night, Josh Bolin (Bolin) was bartending at the bar. 

According to Hicks, he and Bolin had known each other for a 

few years through their mutual work as drug dealers. After 

exchanging pleasantries, Bolin invited Hicks to an after-party at 

his house and explained that there would be high-end marijuana 

there. In response, Hicks stated that he had his own marijuana. 

This led to Bolin “sucker-punch[ing]” Hicks in his “mouth and 

nose area.” Hicks then “pulled himself back up to the bar, and 

[Bolin] hit [him] again and knocked [him] down to the ground.” 

After the altercation, Hicks sat in the parking lot outside of 

Bubba’s and called the police. . . . There was no follow-up 

conversation with the police about this altercation, and no arrests 

were made.

On November 12, 2012, at approximately 10:30PM, Hicks and 

his friends, Graham Girgenti (Girgenti) and Misty Girgenti 

(Misty), went to Krazy Street Bar & Grill (the Bar) in 

Indianapolis, Indiana, to watch Monday Night Football. There 

were about thirty to thirty-five people at the bar. Shortly after 

their arrival, Hicks saw Bolin enter the Bar with friends. 

According to Hicks, he became afraid when he saw Bolin come 

in, so he called his brother, Ronald Hicks (Ronald), to inform 
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him that Bolin was there. Ronald told Hicks that he was on his 

way to pick him up.

Soon after Hicks finished talking to his brother, Bolin 

approached him. Hicks stood up and words were exchanged, but 

no one else could hear what they were saying because of the 

noise in the bar. Hicks testified that Bolin told him, 

“Motherfucker, I will kill you.” There was no yelling, but the 

two men were only one foot away from each other. Shortly 

thereafter, Bolin punched Hicks in the face. The punch caused 

Hicks to fall back slightly, and he reached for his .40 Smith and 

Wesson semi-automatic handgun that was concealed in an inner 

holster inside his pants. Hicks pointed the gun at Bolin and fired. 

Hicks testified that he and Bolin struggled for the gun after the 

first shot. Hicks was able to free himself by firing two additional 

shots at Bolin. In total, Hicks shot Bolin three times. . . .

. . . Bolin died at the scene as a result of the gunshot wounds.

Hicks v. State, No. 49A02-1308-CR-739, at *1-2 (Ind. Ct. App. July 15, 2014)

(internal citations omitted). On November 15, 2012, the State charged Hicks 

with Class A felony murder and Class A misdemeanor possession of marijuana. 

[3] Hicks’s jury trial took place on July 23-24, 2013. Hicks’s primary theory of the 

case was that he acted in self-defense. The jury instruction on self-defense read 

as follows:

It is an issue whether the Defendant acted in self-defense.

A person may use reasonable force against another person to 

protect himself from what the defendant reasonably believes to be 

the imminent use of unlawful force. A person is justified in using 
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deadly force, and does not have a duty to retreat, only if he 

reasonably believes that deadly force is necessary to prevent 

serious bodily injury to himself or a third person or to prevent the

commission of a forcible felony. However, a person may not use 

force if:

• He is committing a crime that is directly and immediately 

connected to the confrontation;

• He is escaping after the commission of a crime that is directly and 

immediately connected to the confrontation;

• He provokes a fight with another person, with intent to cause 

bodily injury to that other person; or

• He has willingly entered into a fight with another person or started 

the fight, unless he withdraws from the fight and communicates to 

the other person his intent to withdraw and the other person

nevertheless continues or threatens to continue the fight.

The State has the burden of proving beyond a reasonable doubt 

that the Defendant did not act in self-defense.

PCR Tr. Ex. 6. And the jury was instructed on murder and its lesser-included 

offenses as follows:

The crime of Murder is defined by law as follows:

A person who knowingly or intentionally kills another human 

being, commits Murder, a Felony.

Included in the charge in this case is the crime of Voluntary 

Manslaughter, which is defined by law as follows:

A person who knowingly or intentionally kills another human 

being while acting under sudden heat commits Voluntary 
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Manslaughter, a Class B Felony. The offense is a Class A Felony 

if it is committed by means of a deadly weapon.

Sudden heat is a mitigating factor that reduces what otherwise 

would be murder to voluntary manslaughter. The State has the 

burden of proving beyond a reasonable doubt that the Defendant 

was not acting under sudden heat.

Before you may convict the Defendant, the State must have 

proven each of the following beyond a reasonable doubt:

1. The Defendant, Brandon Hicks

2. Knowingly

3. Killed

4. Another human being, namely: Joshua Bolin

5. And the Defendant was not acting under sudden heat

6. And the Defendant killed by means of a deadly weapon, 

that is: a handgun

If the State failed to prove each of these elements 1 through 4 

beyond a reasonable doubt, you must find the Defendant not 

guilty of Murder as charged in Count I.

If the State did prove each of these elements 1 through 4 and 

element 6 beyond a reasonable doubt, but the State failed to 

prove beyond a reasonable doubt element 5, you may find the 

Defendant guilty of Voluntary Manslaughter, a Class A Felony, a 

lesser included offense of Count I.
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If the State did prove each of these elements 1 through 5 beyond 

a reasonable doubt, you may find the Defendant guilty of 

Murder, a Felony as charged in Count I.

If you find the Defendant did not commit Murder or Voluntary 

Manslaughter, you may consider whether or not the Defendant 

committed Reckless Homicide, a Class C Felony.

The Crime of Reckless Homicide is defined by law as follows:

A person who recklessly kills another human being commits 

Reckless Homicide, a Class C Felony.

Before you may convict the Defendant, the State must have 

proved each of the following elements:

1. The Defendant, Brandon Hicks

2. Recklessly

3. Killed

4. Another human being, namely: Joshua Bolin

If the State failed to prove each of the following [sic] elements 

beyond a reasonable doubt, you must find the Defendant not 

guilty of Reckless Homicide a Class C Felony as included in 

Count I.

Id. Hicks’s trial counsel did not object to these jury instructions.
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[4] The jury found Hicks not guilty of murder but guilty of voluntary manslaughter 

and possession of marijuana, and on August 7, 2013, the trial court sentenced 

Hicks to an aggregate term of forty years imprisonment. Hicks filed a direct 

appeal. Appellate counsel raised the following arguments: (1) the trial court 

erred in sentencing Hicks; and (2) trial counsel was ineffective for multiple 

reasons. Appellate counsel did not raise the jury instructions, either as a standalone issue or in the context of ineffective assistance of trial counsel. 

[5] This Court affirmed. Relevant to this appeal is appellate counsel’s contention 

that trial counsel was ineffective for failing to argue the elements of self-defense 

in a diligent manner. We disagreed, focusing on the evidence in the record 

related to self-defense:

The State had the burden of rebutting at least one element of selfdefense. A review of the State’s evidence shows that Bolin was 

unarmed and attacked Hicks by punching him with his fist. The 

State’s primary argument was that Hicks’ use of a gun to defend 

himself against Bolin, who was unarmed, was excessive and thus 

unreasonable. The self-defense statute requires that the force 

used to protect oneself is reasonable and “the [jury] is not 

precluded from finding that a defendant used unreasonable force 

simply because the victim was the initial aggressor.” Birdsong v. 

State, 685 N.E.2d 42, 45 (Ind. 1997). Hence, the State provided 

evidence to rebut at least one element of Hicks’ self-defense claim 

and the jury could reasonably decide that Hicks did not act in 

self-defense. Because the State did not fail to rebut at least one 

element of self-defense at trial, trial counsel was not ineffective by 

not addressing it as thoroughly as Hicks wanted her to.

Hicks, 49A02-1308-CR-739, at *6.
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[6] On September 23, 2015, Hicks filed a pro se petition for post-conviction relief, 

which was later amended by counsel. Hicks argued that he received the 

ineffective assistance of appellate counsel based, in relevant part, on the 

following arguments: (1) appellate counsel should have argued that the jury 

instructions were fundamentally erroneous; and (2) appellate counsel should 

not have raised the ineffective assistance of trial counsel as part of a direct 

appeal. The post-conviction court held an evidentiary hearing on Hicks’s 

petition on February 20, 2018, and denied Hicks’s petition on May 1, 2019.1 

Hicks now appeals.

Discussion and Decision

I. Standard of Review

[7] The general rules regarding the review of a ruling on a petition for postconviction relief are well established:

“The petitioner in a post-conviction proceeding bears the burden 

of establishing grounds for relief by a preponderance of the 

evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). 

“When appealing from the denial of post-conviction relief, the 

petitioner stands in the position of one appealing from a negative 

judgment.” Id. To prevail on appeal from the denial of postconviction 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. Weatherford v. 

State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-

 

1 The record does not reveal the reason for the lengthy delay between the evidentiary hearing and the postconviction court’s ruling.
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conviction court in this case made findings of fact and 

conclusions of law in accordance with Indiana Post-Conviction 

Rule 1(6). 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.” Ben-Yisrayl v. State, 729 N.E.2d 

102, 106 (Ind. 2000) (quotation omitted).

Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).

[8] Hicks’s primary argument on appeal is that the post-conviction court 

erroneously determined that he did not receive the ineffective assistance of 

appellate counsel. To establish ineffective assistance of appellate counsel, the 

petitioner must show that (1) appellate counsel was deficient in his or her 

performance, and (2) the deficiency resulted in prejudice. Id. at 269. Failure to 

satisfy either prong will cause the claim to fail. Henley v. State, 881 N.E.2d 639, 

644 (Ind. 2008). To satisfy the first prong, the defendant must show that 

counsel’s representation fell below an objective standard of reasonableness, 

committing errors so egregious that the defendant did not have the counsel 

guaranteed by the Constitution. Hollowell, 19 N.E.3d at 269. To satisfy the 

second prong, the defendant must show a reasonable probability that, but for 

counsel’s errors, the result of the proceeding would have been different. Id.
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II. Assistance of Appellate Counsel

A. Failure to Raise Jury Instructions

[9] Hicks first argues that appellate counsel was ineffective for failing to argue, in 

the direct appeal, that the jury instructions were fundamentally erroneous. In 

considering whether appellate counsel performed deficiently by failing to raise 

an issue, we determine (1) whether the unraised issue is significant and obvious 

from the face of the record, and (2) whether the unraised issue is clearly 

stronger than the issues that were raised on appeal. Bieghler v. State, 690 N.E.2d 

188, 194 (Ind. 1997). In evaluating prejudice, we examine whether the unraised 

issue would have been “‘clearly more likely to result in reversal or an order for a 

new trial.’” Id. (quoting Gray v. Greer, 800 F.2d 644, 647 (7th Cir. 1986)).

[10] Hicks’s trial counsel did not object to the jury instructions; consequently, 

appellate counsel would have had to have shown fundamental error to warrant 

relief on this issue. The fundamental error exception is extremely narrow and 

applies only to an egregious error that constitutes a blanket denial of due 

process, rendering a fair trial impossible. E.g., Ryan v. State, 9 N.E.3d 663, 668 

(Ind. 2014). To rise to the level of fundamental error, the matter must be one 

that the trial court had a duty to correct sua sponte. Id.

[11] The purpose of a jury instruction is to inform the jury of the law applicable to 

the facts without misleading the jury and to enable it to comprehend the case 

clearly. Buckner v. State, 857 N.E.2d 1011, 1015 (Ind. Ct. App. 2006). 
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Therefore, the jury instructions are to be considered as a whole, and reversal is 

not appropriate unless the instructions as a whole mislead the jury. Id.

[12] Hicks directs our attention to the jury instruction describing the elements of 

murder and its lesser-included offenses. He argues that the instruction “omitted 

an essential element—that Hicks ‘was not acting in defense of a person’—that

the jury must find before finding Hicks guilty.” Appellant’s Br. p. 21. With this 

omission, Hicks insists that the roadmap omitted one path to acquittal of 

murder and its lesser-included offenses.

[13] Self-defense is not an element of the crime of murder or its lesser-included 

offenses. Ind. Code §§ 35-42-1-1 (murder), -3 (voluntary manslaughter), -5 

(reckless homicide). Instead, it is a defense of justification, “admitting that the 

facts of the crime occurred but contending that the acts were justified. As such, 

these [justification] defenses negate no element of the crime.” Moon v. State, 

823 N.E.2d 710, 716 (Ind. Ct. App. 2005) (omitting internal citations). 

[14] Although a jury must be informed of the State’s burden to disprove a claim of 

self-defense—as it was in this case—Hicks cites to no authority holding that this 

burden must be included in the list of enumerated elements that the State is 

required to prove to convict, rather than by including that requirement in a 

different instruction. We can only find that because self-defense is not an 

element of the charged crimes, there is no requirement that it be included in the 

instruction describing the elements of those charges.
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[15] Hicks observes that the introduction to pattern jury instruction 10 provides that 

when the State has the burden of persuasion related to a defense, such as with 

self-defense, the following instruction should be incorporated into the 

instruction on the elements of the crime: “If the State failed to prove each of 

these elements [including the absence of self-defense] beyond a reasonable 

doubt, you must find the Defendant not guilty of [charged offense].” Ind. 

Pattern Crim. Jury Inst. 10 INTRO. It is true that in Indiana, the preferred 

practice is to use the pattern jury instructions. E.g., Santiago v. State, 985 N.E.2d 

760, 763 (Ind. Ct. App. 2013). But Hicks points to no authority standing for the 

proposition that use of the pattern instructions is required. Indeed, pattern jury 

instructions are not always upheld as correct statements of law. E.g., Harrison v. 

State, 32 N.E.3d 240, 252 n.5 (Ind. Ct. App. 2015); Albores v. State, 987 N.E.2d 

98, 102 (Ind. Ct. App. 2013). Therefore, the mere fact that the jury instruction 

at issue here did not wholly mimic the pattern jury instruction is insufficient to 

show fundamental error.

[16] As noted above, jury instructions are not viewed in isolation; they are viewed as 

a whole and in reference to each other. McDowell v. State, 102 N.E.3d 924, 935-

37 (Ind. Ct. App. 2018) (holding that although voluntary manslaughter 

instruction was worded incorrectly, instructions as a whole properly instructed 

the jury on the law regarding voluntary manslaughter), trans. denied. Moreover, 

the jury was specifically instructed to consider the instructions as a whole and 

construe every instruction “in connection with, and in light of, every other 

instruction given.” PCR Tr. Ex. 6. Defense counsel told the jury that the 
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instructions on murder and self-defense “fit together” and should be considered 

in tandem. Trial Tr. Vol. II p. 414.

[17] Hicks finds no fault with the jury instruction on self-defense. Indeed, the 

instruction informed the jury that people may use force to protect themselves 

when certain circumstances exist and that the State had to prove beyond a 

reasonable doubt that Hicks had not acted in self-defense in this case. PCR Tr. 

Ex. 6. When the instructions are viewed as a whole, therefore, we can only find 

that reasonable jurors would have understood that if Hicks had a valid claim of 

self-defense that was not disproved by the State, he was not guilty of a criminal 

offense. Therefore, even if it may have been better to have included the State’s 

burden regarding self-defense in the instruction on the elements of the charged 

offenses, any deficiency was cured by the self-defense instruction.

[18] Hicks first responds that during closing arguments, both trial counsel and the 

prosecutor told the jury that self-defense was a defense to murder, but did not 

further explain that it is also a defense to the lesser-included offenses. Second, 

he notes that, while the self-defense instruction explains that the State must 

prove beyond a reasonable doubt that Hicks did not act in self-defense, the 

instructions did not tell the jury what to do (i.e., acquit) if it found that the State 

failed to meet that burden. 

[19] We do not find these arguments persuasive. We decline to operate from the 

premise that Indiana jurors are unintelligent. During Hicks’s trial, the 

attorneys’ arguments were focused on murder because that was the lead charge; 
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but neither the arguments nor the jury instructions suggested that Hicks’s claim 

of self-defense did not apply to the lesser-included offenses. Indeed, the selfdefense instruction stated that a person is justified in using “deadly force,” not 

that he is not guilty of “murder,” when it is necessary to protect him self from 

serious bodily injury. PCR Tr. Ex. 6. Voluntary manslaughter and reckless 

homicide are both examples of the use of deadly force. 

[20] Moreover, we neither expect nor wish for our jurors to ignore the knowledge 

with which they enter the courtroom. Instead, we instruct them to use that 

knowledge. E.g., Buckner, 857 N.E.2d at 1016. Reasonable jurors would know 

that the right of self-defense is not limited to murder and would understand that 

self-defense applies equally to other forms of homicide or non-homicide 

charges. Reasonable jurors would also know that if the State failed to prove 

beyond a reasonable doubt that Hicks did not act in self-defense, they would 

have to acquit Hicks. Therefore, there is no basis for concluding that the jury 

might have believed that (1) self-defense was not a defense to the lesser-included 

charges, or (2) it could convict even if the State failed to meet its burden with 

respect to the self-defense claim. Under these circumstances, appellate counsel 

could not have established fundamental error based on the jury instructions.

[21] In sum, we find that Hicks’s argument regarding jury instructions was neither 

significant and obvious from the face of the record nor clearly stronger than the 
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issues raised by appellate counsel in the direct appeal. Moreover, the issue 

would not likely have resulted in a reversal or a new trial.2

B. Decision to Argue Assistance of Trial Counsel

[22] Hicks also argues that appellate counsel was ineffective because she raised the 

issue of the effectiveness of trial counsel in Hicks’s direct appeal. The State 

concedes that “as a general rule, the better practice is to wait to raise [ineffective 

assistance of counsel] claims on post-conviction.” Appellee’s Br. p. 27. We 

agree, given that if a defendant raises a claim of ineffective assistance of counsel 

on direct appeal, he is procedurally barred from raising the claim again on postconviction. E.g., Woods v. State, 701 N.E.2d 1208, 1220 (Ind. 1998).

[23] For argument’s sake, we will assume that it was deficient performance in this 

case for appellate counsel to have raised ineffective assistance of trial counsel 

claims in Hicks’s direct appeal. That does not end our inquiry, however, as 

Hicks must still prove that he was prejudiced by that decision. In other words, 

he must show that he has a meritorious ineffective assistance of trial counsel 

claim that he could have raised on post-conviction but for the procedural bar 

created by the direct appeal. Ben-Yisrayl, 738 N.E.2d at 261-62.

 

2 Hicks’s appellate counsel did not testify at the post-conviction hearing. The post-conviction court inferred 

from counsel’s absence that, had she been present to testify, she would not have corroborated the claims of 

ineffectiveness. Appealed Order p. 16. Hicks argues that this inference is inappropriate because he tried on 

multiple occasions to secure her presence at the hearing, but she did not respond to his mailings. The postconviction court also noted that the inference was not dispositive, and its ruling would have been the same 

without it. We, likewise, do not rely on any such inference in reaching our result, and decline to consider 

Hicks’s argument that the post-conviction court erred on this basis.
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[24] The only purported meritorious ineffective assistance of trial counsel claim 

advanced by Hicks is trial counsel’s failure to object to the allegedly incomplete 

elements instruction and/or tender an instruction that included the “element” 

that Hicks maintains was omitted from the elements instruction. For the 

reasons discussed above, trial counsel was not deficient for failing to make this 

objection or tender this instruction, and Hicks was not prejudiced by the lack of 

an objection. Had trial counsel made such an objection, it would not have been 

sustained because the jury instructions as a whole were sufficient. E.g., Curtis v. 

State, 905 N.E.2d 410, 418 (Ind. Ct. App. 2009) (holding that to demonstrate 

deficient performance for failing to object, a petitioner must show that the trial 

court would have had no choice but to sustain the objection, had it been made). 

Therefore, even if the instruction issue had been preserved for post-conviction 

proceedings, there is no reasonable probability that raising the issue would have 

resulted in a different outcome.

[25] Finally, we note that this Court found on direct appeal that the State had, in 

fact, disproved the claim of self-defense beyond a reasonable doubt because 

Hicks used objectively unreasonable force under the circumstances. Hicks, No. 

49A02-1308-CR-739, at *6. He shot an unarmed man multiple times in 

response to a single punch thrown that did not inflict any visible injury, much 

less any serious injury. Id. at *3 (noting that Hicks’s “use of a deadly weapon in 

response to a punch was excessive, and there were many options that were 

available to him to avoid an altercation”). Because the evidence proved that 
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Hicks’s conduct was not a justified act of self-defense, he cannot have been 

prejudiced by any inadequacy in the jury instructions regarding self-defense.

[26] In sum, while it may have been inadvisable for appellate counsel to have raised 

ineffective assistance of trial counsel in Hicks’s direct appeal, he has not and 

cannot show prejudice as a result of that decision. Therefore, the postconviction court did not err by denying his claim on this basis.

[27] The judgment of the post-conviction court is affirmed.

Kirsch, J., and Crone, J., concur.