Court of Appeals of Indiana | Memorandum Decision 32A01-1601-PC-220 | December 21, 2016 Page 1 of 16

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

Hezekiah Joel Colbert

Wabash Valley Correctional Facility

Carlisle, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Hezekiah Joel Colbert,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

December 21, 2016

Court of Appeals Case No.

32A01-1601-PC-220

Appeal from the Hendricks 

Superior Court

The Honorable Peter R. Foley, 

Special Judge

Trial Court Cause No.

32D05-1110-PC-11

Pyle, Judge.
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Statement of the Case

[1] Hezekiah Joel Colbert (“Colbert”) appeals from the post-conviction court’s 

denial of his petition for post-conviction relief, in which he alleged that he had 

received ineffective assistance of trial and appellate counsel. Concluding that 

Colbert has failed to meet his burden of showing that the post-conviction court 

erred by denying relief on his allegations of ineffective assistance of trial and 

appellate counsel, we affirm the post-conviction court’s judgment. 

[2] We affirm.

Issue

Whether the post-conviction court erred by denying post-conviction 

relief on Colbert’s claims of ineffective assistance of trial and 

appellate counsel.

Facts

[3] The facts of Colbert’s crimes were set forth in the memorandum decision from 

his direct appeal as follows:

At the time relevant to this appeal, Jarrod Wilson (“Jarrod”) and 

Misty Wilson (“Misty”) had been married, divorced, and remarried. In the summer of 2008, they had been married for 

seven years, but by the following summer, they were estranged.

Misty had started a romantic relationship with her high school 

boyfriend, Colbert. Jarrod moved out of the marital residence on 

Murray Street in Indianapolis and began to live at his parents’

home on Sycamore Street in Brownsburg, Indiana. Colbert then 

moved in with Misty and her children. Although Misty and 

Colbert had discussed the prospect of marriage, she later 

informed Colbert that she wanted to reunite her family and 
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return to her husband Jarrod. After learning this, Colbert said 

that he would kill Jarrod, and began to wear in his waistband a 

butcher knife that he had taken from Misty’s house. In August of 

2009, Jarrod went to Misty’s home to help her repair plumbing, 

and met Colbert at the house.

On August 28, 2009, three days after Colbert threatened to kill 

Jarrod, Misty saw Colbert carrying the butcher knife. That same 

day, Jarrod returned from work to his parents’ house. While on 

the computer, he received an instant message from Colbert, who 

was using Misty’s account. The message stated, “Ha ha, nice try. 

She’s playing both of us.” Tr. p. 404. Jarrod did not respond, 

but did inform Misty about the message. Jarrod then opened the 

garage door in anticipation of his parents’ return home, and fell 

asleep on the living room couch.

Jarrod awoke as Colbert was stabbing him. Colbert wrapped his 

arm around Jarrod from behind, held him down, and stabbed 

him repeatedly in the side and chest. Jarrod broke free from 

Colbert and ran to the other side of the table in front of the couch 

and “[g]ot a good look” at Colbert, who was only a few feet 

away. He saw the knife Colbert was holding, which he 

recognized as a butcher knife from Misty’s house, and also 

noticed that Colbert had a tattoo on his neck. Jarrod managed to 

escape to a neighbor’s house, where the neighbor called the 

police and an ambulance. Jarrod was taken to Wishard hospital 

in Indianapolis, where he underwent emergency surgery to repair 

his injuries, which included wounds to his chest, abdomen, 

stomach, and diaphragm. Jarrod lost over one liter of blood and 

has suffered from long-term loss of feeling in his fingers. Jarrod 

told the police investigating the stabbing that Colbert was his 

attacker. When the police went to Colbert’s residence, he 

crashed his van into a neighbor’s garage while attempting to flee.

The State subsequently charged Colbert with Class A felony 

attempted murder, Class A felony burglary, Class B felony 

aggravated battery, and Class C felony battery. The State also 

alleged that Colbert was an habitual offender. During the jury 
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trial, the State called as a witness Sergeant Jennifer Barnes (“Sgt.

Barnes”), who worked for the cyber crimes unit of the Indiana 

State Police. Sgt. Barnes testified that she conducted a forensic 

search of the computer at Misty’s home and found evidence that 

someone had used the Yahoo! maps website to look for 

directions from Misty’s house, where Colbert had been staying, 

to Jarrod’s parents’ house, where Jarrod was attacked. Colbert 

objected to this testimony on hearsay grounds, but the trial court 

overruled his objection.

The jury ultimately found Colbert guilty as charged and found 

him to be an habitual offender. At the sentencing hearing, the 

trial court vacated Colbert’s convictions for aggravated battery 

and battery, and reduced the burglary conviction from a Class A 

felony to a Class C felony, all on double jeopardy grounds. The 

court then concluded that the aggravating factors outweighed the 

mitigating factors and sentenced Colbert to forty-eight years for 

the attempted murder conviction, enhanced by thirty years for 

the habitual offender determination, and to a consecutive twelve 

years for the burglary conviction, for an aggregate sentence of 

ninety years.

Colbert v. State, No. 32A04-1004-CR-259 *1-2 (Ind. Ct. App. Dec. 30, 2010),

reh’g denied, trans. denied.

[4] On direct appeal, Colbert raised two arguments. Specifically, he argued that: 

(1) the trial court erred by admitting evidence regarding an internet search for 

directions from Colbert’s house to the victim’s house, and (2) his aggregate 

sentence of ninety years was inappropriate. In December 2010, our Court
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issued a memorandum decision, affirming his convictions and sentence.1 

Thereafter, Colbert filed pro se petitions for rehearing and transfer, both of 

which were denied.

[5] Subsequently, in October 2011, Colbert filed a pro se petition for postconviction relief and later filed amended pro se petitions in October 2013 and 

May 2014.

2

 In his final amended petition, Colbert raised post-conviction claims 

of ineffective assistance of trial and appellate counsel. Specifically, he alleged, 

in relevant part, that his trial counsel had rendered ineffective assistance by

failing to object to the following evidence: (1) two police in-car videos (State’s 

Exhibits 122 & 123); (2) the victim’s testimony regarding his identification of 

Colbert; (3) four letters written by Colbert to Misty and her daughter (State’s 

Exhibits 115-118); and (4) the State’s cross-examination of Colbert during the 

jury trial regarding his burglary prior conviction and the State’s evidence during 

his habitual offender enhancement phase, the accumulation of which he 

claimed resulted in a “transference of [the] burden of proof” in the habitual 

offender phase. (App. 86).

[6] In regard to Colbert’s ineffective assistance of appellate counsel claim, he 

alleged, in relevant part, that his counsel had rendered ineffective assistance by: 

 

1 When addressing Colbert’s evidentiary issue, our Court noted that this issue regarding the admission of the 

computer search evidence was “interesting” and “complicated.” Colbert, No. 32A04-1004-CR-259 at *6.

2 The Indiana Public Defender’s Office was appointed to represent Colbert after he filed his first postconviction petition, and the Deputy State Public Defender withdrew her appearance in September 2013.
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(1) failing to raise an appellate issue regarding his Fifth Amendment right to 

remain silent; (2) failing to raise an appellate issue regarding the admission into 

evidence of the four letters written by Colbert to Misty and her daughter; and 

(3) failing to file a petition for rehearing and a petition to transfer. 

[7] On October 31, 2014, the post-conviction court held a hearing on Colbert’s 

post-conviction petition.3 During the hearing, Colbert represented himself pro 

se and called his trial counsel, Michael J. Manning (“Trial Counsel Manning”),

and appellate counsel, Lisa Manning (“Appellate Counsel Manning”) as 

witnesses.4 The post-conviction court also took judicial notice of the trial 

record, which showed that Trial Counsel Manning had objected at trial to the 

four letters written by Colbert to Misty and her daughter (State’s Exhibits 115-

118). 

[8] Trial Counsel Manning testified that, during Colbert’s jury trial, he had 

objected to a police officer’s testimony and moved for a mistrial after the officer 

testified that Colbert did not want to answer the officer’s questions. At trial, 

Trial Counsel Manning argued that a mistrial should be granted because the 

officer had inappropriately commented on Colbert’s right to remain silent, and 

trial counsel asserted that the prosecutor had led the officer to do so. The trial 

 

3

 Initially, the Honorable Stephanie LeMay-Luken was the judge in Colbert’s post-conviction proceeding. 

However, in October 2013, the post-conviction court issued an order for election of a special judge, and the 

Honorable Jane Craney (“Judge Craney”) was selected as special judge. Thus, Judge Craney presided over 

Colbert’s October 2014 post-conviction hearing. 

4 Trial Counsel Manning and Appellate Counsel Manning are married.
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court denied the motion for mistrial, instructed the State that it and its witnesses 

were prohibited from commenting on Colbert’s lack of statement to police, and 

the trial court specifically admonished the jury that it was not to consider the 

officer’s testimony. 

[9] In regard to the lack of objection to the introduction into evidence of two police 

in-car videos (State’s Exhibits 122 & 123), Colbert asserted that Trial Counsel 

Manning should have objected to them because Colbert himself had not viewed 

them prior to trial. Trial Counsel Manning testified that, even if Colbert had

not previewed the videos, he had viewed the videos prior to trial and had 

discussed them with Colbert. Trial counsel also testified that he had objected to 

State’s Exhibit 123 as cumulative. 

[10] When Colbert questioned Trial Counsel Manning about his lack of objection to 

the State’s impeachment of him with his burglary conviction, Trial Counsel 

Manning testified that “[a] [b]urglary conviction would almost always be 

admissible unless it was too old.” (Tr. 164). 

[11] Appellate Attorney Manning testified that she had reviewed the trial transcripts 

and had decided to raise the two appellate issues (hearsay evidentiary issue and 

sentencing issue) because she considered them to be the two strongest issues. 

When testifying at the post-conviction hearing, Appellate Attorney Manning

acknowledged that she and Colbert had discussed the potential appellate issue 

regarding “[t]he Doyle violation that had come up on [his] post-Miranda
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silence.” (Tr. 80) (italics added).

5

 Colbert questioned Appellate Attorney 

Manning as to why she chose to raise the hearsay evidentiary issue on appeal 

instead of an issue challenging the denial of mistrial motion based on the police 

officer’s comment on his right to remain silent, and she testified as follows:

I had done a considerable amount of evidence or research on the 

Doyle violation[] in, mostly in, from our Supreme Court here in 

Indiana and the way that the witness had testified and the way 

that the Judge had sustained part of the objection, denied the 

mistrial and most importantly in the content of [the judge’s]

admonishment as well as the jury’s response or lack of response 

to that admonishment as well as the State’s refusal to, or their, 

their, not their refusal but the fact that they didn’t bring that up in 

closing argument. Um, I had determined from all of that that a 

Doyle violation would not be successful on appeal. At that time, I 

had flagged this issue of the Yahoo map search being hearsay 

because it was an absolutely novel issue for the Court and had 

not been litigated before and I thought that would be more 

successful on appeal.

(Tr. 83-84) (italics added).

 

5

In Doyle v. Ohio, 426 U.S. 610 (1976), the United States Supreme Court “held that under the Fourteenth 

Amendment a prosecutor may not use the silence of a defendant who’s been arrested and Mirandized to 

impeach the defendant.” Trice v. State, 766 N.E.2d 1180, 1182 (Ind. 2002) (citing Doyle, 426 U.S. at 619). 

During the post-conviction hearing, Colbert also referred to the potential Doyle violation issue as a Fifth 

Amendment issue. We note that a Doyle violation is a violation of the Fourteenth Amendment’s Due 

Process Clause prohibition against fundamental unfairness, not a violation of the Fifth Amendment’s 

privilege against self-incrimination. See Sobolewski v. State, 889 N.E.2d 849, 856 (Ind. Ct. App. 2008), trans. 

denied.
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[12] On June 8, 2015, the post-conviction issued an order denying Colbert’s petition 

for post-conviction relief on all claims of ineffective assistance of trial and 

appellate counsel (“June 2015 Post-Conviction Order”). That same day, 

Colbert filed praecipe for withdraw of submission under Trial Rule 53.1 (“Trial 

Rule 53.1 motion”). In the meantime, Colbert filed a notice of appeal and 

started an appeal from the post-conviction court’s June 2015 Post-Conviction 

Order. In August 2015, the Indiana Supreme Court granted Colbert’s Trial 

Rule 53.1 motion, ordered Judge Craney to vacate her June 2015 PostConviction Order, and appointed the Honorable Peter R. Foley as special 

judge. 

[13] Thereafter, the post-conviction court held an additional hearing on November 

6, 2015. The parties stipulated that the post-conviction court could review the 

transcript of the October 31, 2014 hearing in order to rule on Colbert’s postconviction petition relief claims. The post-conviction court also allowed 

Colbert to question Trial Counsel Manning regarding a bond issue. Thereafter, 

the post-conviction court issued an order denying Colbert’s petition for postconviction relief on all claims of ineffective assistance of trial and appellate 

counsel. Colbert now appeals. 

Decision

[14] At the outset, we note that Colbert has chosen to proceed pro se and that his 

appellate brief is not the model of clarity. It is well settled that pro se litigants 

are held to the same legal standards as licensed attorneys. Evans v. State, 809 

N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. Thus, pro se litigants are 
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bound to follow the established rules of procedure and must be prepared to 

accept the consequences of their failure to do so. Id. “We will not become a 

party’s advocate, nor will we address arguments that are inappropriate, 

improperly expressed, or too poorly developed to be understood.” Barrett v. 

State, 837 N.E.2d 1022, 1030 (Ind. Ct. App. 2005), trans. denied.

[15] Colbert appeals the post-conviction court’s order denying post-conviction relief 

on his claims of ineffective assistance of trial and appellate counsel. Our 

standard of review in post-conviction proceedings is well settled. 

We observe that post-conviction proceedings do not grant a 

petitioner a “super-appeal” but are limited to those issues 

available under the Indiana Post-Conviction Rules. Postconviction proceedings are civil in nature, and petitioners bear 

the burden of proving their grounds for relief by a preponderance 

of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner 

who appeals the denial of PCR faces a rigorous standard of 

review, as the reviewing court may consider only the evidence 

and the reasonable inferences supporting the judgment of the 

post-conviction court. The appellate court must accept the postconviction court’s findings of fact and may reverse only if the 

findings are clearly erroneous. If a PCR petitioner was denied 

relief, he or she must show that the evidence as a whole leads 

unerringly and unmistakably to an opposite conclusion than that 

reached by the post-conviction court.

Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal case 

citations omitted), trans. denied. Additionally, “[w]e will not reweigh the 

evidence or judge the credibility of the witnesses; we examine only the 

probative evidence and reasonable inferences that support the decision of the 
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post-conviction court.” Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007), 

reh’g denied, cert. denied.

[16] Turning to Colbert’s post-conviction claims regarding ineffective assistance of 

counsel, we note that we apply the same standard of review to claims of 

ineffective assistance of trial counsel and ineffective assistance of appellate

counsel. Williams v. State, 724 N.E.2d 1070, 1078 (Ind. 2000), reh’g denied, cert. 

denied. A claim of ineffective assistance of counsel requires a showing that: (1) 

counsel’s performance was deficient by falling below an objective standard of 

reasonableness based on prevailing professional norms; and (2) counsel’s 

performance prejudiced the defendant such that “‘there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444 

(Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984), reh’g 

denied), reh’g denied, cert. denied. “A reasonable probability arises when there is a 

‘probability sufficient to undermine confidence in the outcome.’” Grinstead v. 

State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466 U.S. at 694). 

“Failure to satisfy either of the two prongs will cause the claim to fail.” Gulzar 

v. State, 971 N.E.2d 1258, 1261 (Ind. Ct. App. 2012) (citing French v. State, 778 

N.E.2d 816, 824 (Ind. 2002)), trans. denied. “Indeed, most ineffective assistance 

of counsel claims can be resolved by a prejudice inquiry alone.” French, 778 

N.E.2d at 824. Therefore, if we can dismiss an ineffective assistance claim on 

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

deficient. Henley v. State, 881 N.E.2d 639, 645 (Ind. 2008). 
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A. Trial Counsel 

[17] On appeal, Colbert argues that his trial counsel rendered ineffective assistance 

by failing to object to the following evidence: (1) two police in-car videos 

(State’s Exhibits 122 & 123); (2) the victim’s testimony regarding his 

identification of Colbert; (3) four letters written by Colbert (State’s Exhibits 115-

118); and (4) evidence regarding his burglary conviction during both phases of 

his trial.6

[18] In regard to Colbert’s ineffective assistance of trial counsel claims, the postconviction court determined that Colbert had failed to meet his burden of 

establishing grounds for relief on these claims. We agree with the postconviction court’s determination.

[19] To demonstrate ineffective assistance of trial counsel for failure to object, a 

petitioner must prove that an objection would have been sustained if made and 

that he was prejudiced by counsel’s failure to make an objection. Kubusch v. 

State, 934 N.E.2d 1138, 1150 (Ind. 2010), reh’g denied. Colbert, however, has 

failed to do so for each of his claims. Colbert has failed to specify what 

objection his trial counsel should have made to the evidence he now challenges, 

and he has failed to show that any such objections would have been sustained. 

Furthermore, Colbert has made absolutely no showing that there is a reasonable 

 

6 Colbert also appears to attempt to argue other ineffective assistance of trial counsel claims. These 

arguments are waived because he did not provide a cogent argument. See Ind. App. Rule 46(A)(8)(a). See 

also Griffith v. State, 59 N.E.3d 947, 958 n.5 (Ind. 2016) (noting that the defendant had waived his arguments 

by failing to provide cogent argument).
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probability that, but for his trial counsel’s alleged errors, the result of the 

proceeding would have been different. Accordingly, we affirm the postconviction court’s denial of post-conviction relief on Colbert’s ineffective 

assistance of trial counsel claims. See French, 778 N.E.2d at 824 (holding that a 

petitioner’s failure to satisfy either of the two prongs of an ineffective assistance 

of counsel will cause the claim to fail).

B. Appellate Counsel 

[20] Lastly, Colbert contends that the post-conviction court erred by denying him 

post-conviction relief on his ineffective assistance of appellate counsel claim. 

Wading through Colbert’s brief, we find that the argument most resembling a 

cogent argument is Colbert’s claim that Appellate Attorney Manning rendered 

ineffective assistance by failing to raise an appellate issue on direct appeal. 

Specifically, Colbert contends that Appellate Attorney Manning should have 

raised an appellate challenge to the trial court’s denial of his mistrial motion 

made after a police officer testified and referenced Colbert’s right to remain 

silent.7

 

7 Colbert also appears to attempt to argue other ineffective assistance of appellate counsel claims. These 

arguments, however, are waived because he did not provide a cogent argument. See Ind. App. Rule 

46(A)(8)(a). See also Griffith, 59 N.E.3d at 958 n.5 (noting that the defendant had waived his arguments by 

failing to provide cogent argument). Additionally, in regard to Colbert’s claim that his appellate counsel was 

ineffective for not filing a petition for rehearing or transfer, we note that Colbert cannot show that he was 

prejudiced because he filed both of these petitions.
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[21] Ineffective assistance of appellate counsel 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)). Colbert argues that 

his appellate counsel rendered ineffective assistance because she failed to raise a 

challenge to the denial of his mistrial motion on appeal. Thus, his ineffective 

assistance of appellate counsel claims are based upon category (2).

[22] “Because the decision regarding what issues to raise and what arguments to 

make is ‘one of the most important strategic decisions to be made by appellate 

counsel,’ ineffectiveness is very rarely found.” Conner v. State, 711 N.E.2d 1238, 

1252 (Ind. 1999) (quoting Bieghler, 690 N.E.2d at 193), reh’g denied, cert. denied. 

“‘Accordingly, when assessing these types of ineffectiveness claims, 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, 690 N.E.2d at 194).

[23] We need not, however, decide whether appellate counsel’s performance was 

deficient because Colbert has not shown prejudice on this or any of his 

ineffective assistance of appellate counsel claims.8 See Young v. State, 746 

N.E.2d 920, 927 (Ind. 2001) (explaining that it was not necessary to address the 

allegations of deficient performance where the petitioner had failed to establish 

 

8 We note, however, that Appellate Attorney Manning’s testimony during the post-conviction hearing clearly 

shows that she made a strategic decision to exclude the mistrial issue in favor of the hearsay evidentiary issue.
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prejudice and affirming the trial court’s denial of post-conviction relief); 

Coleman v. State, 741 N.E.2d 697, 701 n.4 (Ind. 2000) (quoting Strickland, 466 

U.S. at 697) (explaining that “‘[i]f it is easier to dispose of an ineffectiveness 

claim on the ground of lack of sufficient prejudice, which we expect will often 

be so, that course should be followed’”), reh’g denied, cert. denied.

[24] To succeed on his ineffective appellate counsel claim, “the prejudice-prong of 

Strickland require[d] [Colbert] to demonstrate a reasonable probability that, but 

for his counsel’s errors, the result of his direct appeal would have been 

different.” See Martin v. State, 760 N.E.2d 597, 600 (Ind. 2002) (citing Strickland,

466 U.S. at 694). Thus, to show prejudice on his ineffective appellate counsel 

claim regarding the lack of mistrial argument on direct appeal, Colbert was 

required to show that, had his appellate counsel raised that issue, this Court 

would have reversed the trial court’s mistrial ruling and reversed Colbert’s

convictions. 

[25] Colbert, however, has not shown that there is a reasonable probability that the 

result of his direct appeal would have been different had his appellate counsel 

raised the mistrial issue. Indeed, his brief contains a rambling recitation of 

evidence from trial and general references to cases, and it does not specifically 

show the prejudice necessary to meet the burden of his ineffective assistance of 

appellate counsel claim. See Garrett, 992 N.E.2d at 724 (explaining that the 

prejudice prong for the waiver of issues category of an ineffective assistance of 

appellate counsel claim requires an examination of whether the issues that 

appellate counsel failed to raise would have been clearly more likely to result in 
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reversal or an order for a new trial). Accordingly, we affirm the post-conviction 

court’s denial of post-conviction relief on Colbert’s ineffective assistance of 

appellate counsel claims. 

[26] Affirmed.

Kirsch, J., and Riley, J., concur.