Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018 Page 1 of 15

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.

ATTORNEY FOR APPELLANT

India Lane

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Angela Sanchez

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Rick L. Robinson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 16, 2018

Court of Appeals Case No.

02A03-1609-PC-2031

Appeal from the Allen Superior 

Court

The Honorable Frances C. Gull, 

Judge

Trial Court Cause No.

02D04-0909-PC-83

Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018 Page 2 of 15

Case Summary

In 2008, a jury convicted Rick L. Robinson of criminal confinement, a Class C 

felony;

1

intimidation, a Class D felony;

2

two counts of possession of a

controlled substance, a Class D felony;

3 and possession of a firearm by a serious 

violent felon, a Class B felony.

4

 This Court affirmed Robinson’s convictions on 

direct appeal. See Robinson v. State, No. 02A05-0811-CR-658 (Ind. Ct. App.

April 24, 2009). Robinson filed a pro se petition for post-conviction relief, 

which was subsequently amended by counsel. Following a hearing, the postconviction court denied Robinson relief.

5

 Robinson appeals the denial of his 

petition. Concluding that none of the errors alleged by Robinson amount to 

ineffective assistance of trial counsel, either alone or cumulatively, we affirm 

the denial of Robinson’s petition.

Issue

The sole issue for our review is whether the post-conviction court 

erred in denying Robinson’s petition.

 

1

IND. CODE § 35-42-3-3.

2

I.C. § 35-45-2-1.

3

I.C. § 35-48-4-7.

4

I.C. § 35-47-4-5.

5 The post-conviction court granted relief on one issue and vacated one of Robinson’s convictions for 

possession of a controlled substance. However, the court explained that Robinson’s aggregate sentence 

remained unchanged because the sentence for the vacated conviction had been run concurrently with the 

sentence for another conviction.
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018 Page 3 of 15

Facts

[1] We set forth the facts as follows in Robinson’s direct appeal:

Robinson and Amy Pate, who first met in 2001, began dating in 

January of 2008. On February 7, 2008, Pate spent the night at 

Robinson’s home on Third Street in Fort Wayne. The next 

morning, Robinson and Pate awoke around 6:00 a.m. and had 

sexual intercourse before Pate left to take her children to school.

Pate returned to Robinson’s home at approximately 9:30 a.m.

That morning, Robinson and Pate ran some errands around town 

before returning to Robinson’s home together around noon.

Robinson and Pate then “went upstairs,” “smoked a blunt,” “had 

intercourse,” and “took showers together.” Tr. p. 166. As Pate 

and Robinson walked downstairs to leave, Pate realized that she 

could not find her keys. 

Pate described what happened next as follows:

[Pate] said, “Baby, I can’t find my keys,‟ and [Robinson] 

turned around and looked at me and said, “what do you 

mean?” And I said, “I can’t find my keys.” I put my 

hands in my coat pocket and they weren’t there and he 

turned and said, “Bitch, I’m going to show you what 

happens to bitches like you that want to f*** with me.”

He slapped me across my face and told me to sit on his 

weight bench. He went outside to his van. When he came 

back inside, he dead[-]bolted his door with a key. He 

picked up a brown weight belt that he had in his living 

room and he told me we were going to go through the 

whole house and look for my keys and everywhere we 

didn’t find my keys he was going to hit me with that belt. 

We started in his living room and walked through the 

whole downstairs. I knew when I went through the 

kitchen and I looked at his clock and it said 1:40 p.m. We 

got up the stairs, he told me to open up his bedroom door. 
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018 Page 4 of 15

I did. We got in the room, he continued to hit me with the 

belt. I had my back to it. He wrapped the belt around my 

neck. He bent back over his bed. He was spitting at me, 

yelling things at me. I can’t exactly remember what he 

was saying because all I could think was pray to God that 

I would see my kids again. When I told him I couldn’t

breathe, he picked me up off of my feet, put the belt 

around my neck. I remember things started to turn white 

and fade away and I felt like I was going to pass out. 

[Robinson] stopped. He started touching my face 

realizing that he had caused injury to the left side of my 

face. He started freaking out, asking me what I was going 

to say happened to me. I told him anything I could to 

make him feel safe so he would let me go. I told him I 

would tell people I fell, that I got into a fight. I convinced 

him I would not turn him into anyone so that he would let 

me out of his house. 

Tr. pp. 167-68. Robinson told Pate that she would be on the 

front page of the newspaper if she told the police what happened 

to her. Robinson and Pate then walked downstairs together 

where they talked in his kitchen for a little bit. While in the 

kitchen, Pate noticed that her keys were in a plastic Kroger bag 

on Robinson’s table. Robinson told Pate that he “knew they 

were there the whole time.” Tr. p. 182. At approximately 3:40 

p.m., Robinson allowed Pate to leave his home. 

Pate waited until approximately 1:00 a.m. on February 9, 2008, a 

time when she knew Robinson would be asleep, to seek 

treatment. Pate was treated for bruises on her back, shoulder, 

and head, for pain in her left ear, and for facial contusions and 

abrasions. Dr. Andrew McCanna, Pate’s treating physician, 

described Pate’s demeanor as “pretty tearful, crying, upset and 

anxious.” Tr. p. 263. Pate told Dr. McCanna that her boyfriend 

had assaulted her and that she was afraid of him. Dr. McCanna 

determined that Pate’s injures were consistent with blunt force 

injury. 
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018 Page 5 of 15

On Sunday, February 10, 2008, Pate visited her sister and her 

father at her sister’s apartment. Upon observing Pate’s injuries, 

Pate’s father called the police. Fort Wayne Police Officer Doug 

Hart responded to Pate’s father’s call, recorded Pate’s statement 

that Robinson had beat her, and photographed Pate’s injuries. 

Later that evening, Robinson began calling Pate, describing the 

people who were visiting Pate’s home and what they were 

wearing. Pate, fearing for her safety as well as that of her 

children and her visitors, agreed to meet Robinson at his home. 

At some point after Pate arrived at Robinson’s home, Robinson 

became afraid that the police were going to raid his home 

because he thought they knew Pate was there. Robinson 

“grabbed his gun and waved it around pacing from his window 

to his bed and told [Pate] to write a note” stating that she suffered 

injuries after falling down the stairs. Tr. p. 189. Robinson told 

Pate what to write word-for-word and directed her to sign and 

date the note. Pate complied. 

Several days later, Fort Wayne Police Detective Scott Morales 

interviewed Pate and took additional photographs of her injuries. 

Detective Morales obtained a search warrant for Robinson’s

home based on the information provided by Pate. Upon 

executing the search warrant, Detective Morales recovered a 

large, brown weight lifting belt from Robinson’s living room, a 

loaded silver, Smith and Wesson .357 magnum revolver,[6]two 

boxes of .357 magnum ammunition, a holster, and the note 

allegedly written by Pate stating that she fell down Robinson’s

 

6

Fort Wayne Police Department Detective Scott Morales (“Detective Morales”), who executed the search 

warrant at Robinson’s home, testified at trial that he found the gun in a jacket that was hanging on a bedpost 

in Robinson’s bedroom. According to Detective Morales, the jacket appeared to be a very large men’s jacket,

and Robinson is a very large man.

Robinson’s landlord testified at trial that he owned the gun. He further testified that he believed that the gun 

was in Robinson’s apartment because Robinson had entered the landlord’s garage without the landlord’s 

permission and removed the gun. According to the landlord, the gun was not in his possession when he went 

to Robinson’s house to repair a broken water heater in February 2008.
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018 Page 6 of 15

stairs from Robinson’s bedroom. Detective Morales also 

recovered an unlabeled pill bottle containing nine pills. 

Robinson described the pills as “methadone” and “Tylenol 3s”

and admitted to Detective Morales that he knew the pills were in 

his bedroom. Chemical tests confirmed that the pills were 

methadone and Tylenol 3, both of which are scheduled drugs 

requiring a prescription for possession. No evidence was 

presented suggesting that Robinson had a prescription for either 

drug. 

On February 22, 2008, the State charged Robinson with Class C 

felony battery, Class C felony criminal confinement, Class D 

felony intimidation, Class D felony strangulation, two counts of 

Class D felony possession of a controlled substance, and Class B 

felony possession of a firearm by a serious violent felon. Prior to 

trial, Robinson moved to suppress the evidence recovered from 

his home, claiming that the search warrant lacked probable 

cause. The trial court granted Robinson’s motion as it related to 

certain bodily fluids and his cell phone, but denied the motion as 

it related to the other evidence recovered from Robinson’s home.

Robinson also moved to prevent the State from presenting the 

testimony of Pate’s sister, Shannon Whelchel, that Robinson had 

made an unsolicited offer to sell her methadone, stating that he 

had a “doctor in his pocket.” Tr. p. 278-79. The trial court 

denied this motion. Following trial, the jury found Robinson 

guilty of all charges, except for the Class C felony battery charge 

and the Class D felony strangulation charge. The trial court 

entered judgment against Robinson and sentenced him to an 

aggregate term of twenty-eight years. 

Robinson, No. 02A05-0811-CR-658 at *2-6.

[2] On direct appeal, Robinson argued that: (1) the evidence was insufficient to 

support his convictions because Pate’s testimony was incredibly dubious; (2) the 

evidence was insufficient to support his possession of a controlled substance 
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018 Page 7 of 15

convictions because there was insufficient evidence to prove that he knowingly 

or intentionally possessed the controlled substances; (3) the trial court abused its

discretion in admitting evidence recovered from his home because the warrant 

authorizing the search of his home was not supported by probable case where 

the affidavit was based solely upon Pate’s report of the events; (4) the trial court 

abused its discretion in admitting Whelchel’s statements that Robinson offered 

to obtain methadone for her and told her that he had “a doctor in his pocket”

because such statements were inadmissible pursuant to Indiana Rule of 

Evidence 404(b), (Trial Tr. 279);

7 and (5) the trial court “abused its discretion in 

allegedly denying his right to present a defense by excluding evidence that Pate 

had been in a disagreement with another individual during the relevant time 

period.” Robinson at 13.

[3] This Court concluded that: (1) Pate’s testimony was not incredibly dubious; (2) 

there was sufficient evidence that Robinson knowingly and intentionally 

possessed the Tylenol 3 and methadone, which were found in his bedroom; (3)

the trial court did not abuse its discretion in admitting evidence from the search 

of his home because a police officer setting forth the victim’s report is sufficient 

to justify the issuance of a warrant;8(4) the trial court did not abuse its 

discretion in admitting Whelchel’s statements because they were relevant to 

prove Robinson’s knowledge that methadone was a controlled substance, which 

 

7 We cite to the trial transcript as Trial Tr. and to the transcript of the post-conviction hearing as PCR-Tr.

8

See Mickens v. State, 479 N.E.2d 520, 523 (Ind. 1985).
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018 Page 8 of 15

required a prescription by a doctor, and because Robinson had not shown 

prejudice as a result of Whelchel’s testimony; and (5) Robinson had failed to 

show how the admission of the proffered testimony concerning an alleged 

disagreement between Pate and another individual was relevant to prove or 

disprove whether Robinson and Pate had been involved in a physical 

altercation on February 8, 2008. We further noted that any error in the 

exclusion of evidence that Pate had been involved in a disagreement with 

another individual during the relevant time period was harmless because the 

jury had acquitted Robinson of the Class C felony battery charge and the Class 

D felony strangulation charge. See id.

[4] In 2009, Robinson filed a pro se petition for post-conviction relief. A public 

defender entered an appearance but later withdrew from the case. In 2015, 

Robinson retained private counsel who filed an amended petition and argued 

that trial counsel was ineffective because counsel had failed to: (1) argue that 

the detective who submitted the affidavit for probable cause in support of the 

search warrant omitted from the affidavit Pate’s inconsistent statements and 

alleged drug-seeking behavior; (2) tender a constructive possession jury 

instruction; (3) call Larry Dickerson to testify; and (4) make an offer of proof 

regarding the potential defense that someone else had committed the crime. 

Robinson also argued that the cumulative effect of the alleged errors amounted 

to ineffective assistance of counsel. The post-conviction court held a two-day 

hearing on the petition in July 2015 and January 2016. 
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018 Page 9 of 15

[5] At the hearing, when Robinson’s post-conviction counsel asked trial counsel 

why he had not tendered a constructive possession jury instruction, trial counsel 

explained as follows: “I don’t generally find myself tendering constructive 

possession instructions, that’s usually coming from the State because they want 

an alternative to being forced to prove actual possession.” (PCR-Tr. 24).

[6] In addition, Larry Dickerson testified that he had been to Robinson’s house 

with Robinson’s landlord in February 2008. According to Dickerson, the two 

men had gone to Robinson’s house to repair a hot water heater and foam-spray 

a window in Robinson’s bedroom, and while the two men were in Robinson’s 

bedroom, the landlord “took off his coat and left it there.” (PCR- Tr. 69). 

Dickerson further testified that Robinson was one-hundred pounds heavier than 

his landlord and could not “have got his arm in the sleeve” of his landlord’s 

coat. (PCR-Tr. 70). In addition, Dickerson testified that he did not see a gun in 

the landlord’s jacket pocket and he did not see the landlord leave a gun at the 

the house that day.

[7] Following the hearing, the post-conviction court issued a twenty-four page 

order that denied Robinson relief. Robinson now appeals the denial of his 

petition.

Decision

[8] A defendant who has exhausted the direct appeal process may challenge the 

correctness of his conviction and sentence by filing a post-conviction petition. 

Parish v. State, 838 N.E.2d 495, 499 (Ind. Ct. App. 2005), trans. denied . Post-
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018 Page 10 of 15

conviction procedures do not provide an opportunity for a super appeal. Id.

Rather, they create a narrow remedy for subsequent collateral challenges to 

convictions that must be based on grounds enumerated in the post-conviction 

rules. Id. Post-conviction proceedings are civil proceedings, and a defendant 

must establish his claims by a preponderance of the evidence. Id.

[9] In reviewing the judgment of a post-conviction court, this Court considers only 

the evidence and reasonable inferences supporting its judgment. Hall v. State,

849 N.E.2d 466, 468 (Ind. 2006). The post-conviction court is the sole judge of 

the evidence and the credibility of witnesses. Id. at 468-69. To prevail on 

appeal from the denial of post-conviction relief, the petitioner must show that 

the evidence as a whole leads unerringly and unmistakably to a conclusion 

opposite that reached by the post-conviction court. Id. at 469. Only where the 

evidence is without conflict and leads to but one conclusion, and the postconviction court has reached the opposite conclusion, will the court’s findings 

or conclusions be disturbed as being contrary to law. Id.

[10] Where, as here, the post-conviction judge is the same judge who conducted the 

original trial, such a jurist is uniquely situated to assess whether counsel’s 

performance fell below an objective standard of reasonableness based on 

prevailing professional norms, and whether, but for counsel’s unprofessional 

conduct, there was a reasonable probability that the jury would have reached a 

different verdict. McCullough v. State, 973 N.E.2d 62, 75 (Ind. Ct. App. 2012), 

trans. denied. See also State v. Dye, 784 N.E.2d 469, 476 (Ind. 2003) (noting that 

because the judge presided at both the original trial and post-conviction hearing, 
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018 Page 11 of 15

the judge was in “an exceptional position” to assess weight and credibility of 

factual evidence and whether defendant was deprived of a fair trial).

[11] Robinson argues that the post-conviction court erred in denying his petition 

because he received ineffective assistance of trial counsel. We review claims of 

ineffective assistance of trial counsel under the two-prong test established in 

Strickland v. Washington, 466 U.S. 668 (1984). The defendant must show that 

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

based on prevailing professional norms and that there is a reasonable 

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

have been different. Moody v. State, 749 N.E.2d 65, 67 (Ind. Ct. App. 2001), 

trans. denied.

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

we will accord those decisions deference on appeal. Wrinkles v. State, 749 

N.E.2d 1179, 1195 (Ind. 2001), cert. denied. Counsel’s performance is presumed 

effective, and a defendant must offer strong and convincing evidence to 

overcome this presumption. Smith v. State, 822 N.E.2d 193, 202 (Ind. Ct. App.

2005), trans. denied. We will not speculate as to what may or may not have been 

advantageous trial strategy as counsel should be given deference in choosing a 

trial strategy which, at the time and under the circumstances, seems best. 

Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998).

[13] If we can dismiss an ineffective assistance of counsel claim on the prejudice 

prong, we need not address whether counsel’s performance was deficient. 
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018 Page 12 of 15

Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). Rather, we may proceed to 

evaluate whether the alleged error would have led to a different result. Ritchie v. 

State, 875 N.E.2d 706, 716 (Ind. 2007). When making this evaluation, we 

consider the totality of the evidence, taking into account the effect of the alleged 

error. Cooper v. State, 687 N.E.2d 350, 353 (Ind. 1997). A defendant is “entitled 

to a fair trial, not a perfect trial.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014)

(citation omitted).

[14] Here, Robinson first contends that he is entitled to post-conviction relief

because his trial counsel was ineffective for failing to argue in his motion to 

suppress and at trial that a police officer had omitted information from the 

probable cause affidavit offered in support of the warrant to search Robinson’s 

home. Specifically, Robinson argues that the police officer omitted information 

about Pate’s alleged drug-seeking behavior when she went to the hospital

several times in January and February 2008 and the alleged inconsistencies in 

her descriptions of the crime. Robinson, however, has failed to prove that his 

counsel rendered deficient performance by not raising these arguments and that 

but for this alleged error, the result of the proceeding would have been different.

[15] Specifically, in the case of an alleged omission from a probable cause affidavit, 

a defendant has the burden to show that: (1) the police engaged in a deliberate 

falsehood or reckless disregard for the truth in omitting information from the 

warrant application; and (2) probable cause would no longer exist if the omitted 

information were considered by the issuing judge. Keelyen v. State, 14 N.E.3d 

865, 877 (Ind. Ct. App. 2014), trans. denied. Here, we agree with the State that 
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018 Page 13 of 15

Robinson has neither argued nor met his burden of proof to show that the 

omission of this information was deliberate and that probable cause would have 

no longer existed if such omitted information had been considered by the 

issuing judge. Robinson has failed to meet his burden to show that but for this 

alleged error, the result of the proceeding would have been different. 

Accordingly, he cannot show the prejudice necessary to succeed on an 

ineffective assistance of counsel claim.

[16] Robinson next contends that trial counsel was ineffective for failing to tender a 

constructive possession jury instruction. To prevail on his claim, Robinson has 

the burden to show that counsel unreasonably failed to request a proper 

instruction and that Robinson was prejudiced by the failure to request the 

instruction. See Potter v. State, 684 N.E.2d 1127, 1134 (Ind. 1997). Robinson 

has shown neither. We further note that at the post-conviction hearing, trial 

counsel explained that he had made a strategic decision not to tender a 

constructive possession instruction. According to trial counsel, constructive 

possession instructions typically come “from the State because they want an 

alternative to being forced to prove actual possession.” (PCR-Tr. 24). Counsel 

should be given deference in choosing a trial strategy. See Whitener, 696 N.E.2d 

at 42. Robinson has failed to meet his burden to show that trial counsel was 

ineffective for failing to tender a constructive possession jury instruction.

[17] Robinson also argues that trial counsel was ineffective for failing to call Larry 

Dickerson as a witness at trial. It appears that Robinson believes that 

Dickerson’s testimony would have established that the gun and jacket that 
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018 Page 14 of 15

Detective Morales found in Robinson’s bedroom belonged to the landlord, who 

left it there with his gun in the pocket when he was foam-spraying the window 

in Robinson’s bedroom. However, we agree with the State that “[t]rial counsel 

was not ineffective for not calling Dickerson to provide inconsequential 

testimony.” (State’s Br. 19). Specifically, Dickerson testified that he did not see 

a gun in the landlord’s pocket or in the landlord’s possession that day. He also 

testified that Robinson was one-hundred pounds heavier than the landlord and 

could not “have got his arm in the sleeve” of his landlord’s coat. (PCR-Tr. 70). 

We agree with the State that where “Dickerson claims no knowledge about the 

gun, and he clearly states that the jacket left behind [by the landlord] would not 

have been of the same distinctly large size as the one in which the gun was 

found,” his testimony was “arguably irrelevant . . . and certainly . . . not 

sufficiently probative to have altered the outcome of trial.” (State’s Br. at 20). 

Robinson has failed to meet his burden to prove that trial counsel was 

ineffective for failing to call Larry Dickerson as a witness at trial. See Grinstead 

v. State, 845 N.E.2d 1027, 1033 (Ind. 2006).

[18] Robinson further argues that trial counsel was “ineffective because he failed to 

make a proper argument and offer of proof that [Robinson] was allowed to put 

on a defense that someone else could have battered Ms. Pate.” (Robinson’s Br. 

16). However, on direct appeal, this Court concluded that any error in the 

exclusion of evidence that Pate had been involved in a disagreement with 

another individual during the relevant time period was harmless because the 

jury acquitted Robinson of the Class C felony battery and the Class D felony 
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2031 | March 16, 2018 Page 15 of 15

strangulation. See Robinson, No. 02A05-0811-CR-658 at 15. Robinson has 

failed to meet his burden of proving he would have been prejudiced by any such 

error. If we can dismiss an ineffective assistance of counsel claim on the 

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

deficient. See Helton, 907 N.E.2d at 1023.

[19] Robinson also contends that the cumulative effect of counsel’s errors deprived 

him of his right to the effective assistance of counsel. However, the Indiana 

Supreme Court has explained that “[t]rial irregularities which standing alone do 

not amount to error do not gain the stature of reversible error when taken 

together.” Kubsch v. State, 934 N.E.2d 1138, 1154 (Ind. 2010) (citing Reaves v. 

State, 586 N.E.2d 847, 858 (Ind. 1992)). We find no error, cumulative or 

otherwise.9

[20] Affirmed. 

May, J., and Brown, J., concur. 

 

9 Robinson also argues that appellate counsel was ineffective. He has waived appellate review of this 

argument because his one-paragraph argument is supported neither by citation to authority nor cogent 

argument. See Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005) (“Generally, a party waives any 

issue raised on appeal where the party fails to develop a cogent argument or provide adequate citation to 

authority and portions of the record.”), trans. denied.

Waiver notwithstanding, we find no error. First, the post-conviction court granted relief on one of the issues. 

Second, because we have determined that Robinson did not receive ineffective assistance of trial counsel he 

can neither show deficient performance nor resulting prejudice as a result of his appellate counsel’s failure to 

raise these issues on appeal. See Smith v. State, 792 N.E.2d 940, 946 (Ind. Ct. App. 2003) (“As we find 

Smith’s [trial] counsel was not ineffective, appellate counsel did not err in failing to raise this issue on 

appeal.”), trans. denied.