Court of Appeals of Indiana | Memorandum Opinion 71A03

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### 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.
A PPELLANT PRO SE Bill Snider Michigan City, Indiana A TTORNEY S FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIAN A
Bill Snider, Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. S eptember 15, 2015 Court of Appeals Cause No. 71A03

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- 334 Appeal from the St. Joseph Superior Court The Honorable Jerome Frese, Judge Cause No. 71D02

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- 42



### Riley , Judge .Court of Appeals of Indiana | Memorandum Opinion 71A03

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### STATEMENT OF THE CASE
[1] Appellant

- Defendant, Bill Snider ( Snider ), appeals the post

- conviction court’s denial of his amended petition for post

- conviction relief.

[2] We a ffirm

. 

### ISSUE

[3] Snider raises one issue on appeal , which we restate as : Whether the post

conviction court erred in denying his petition.


### FACTS AND PROCEDURAL HISTORY
[4] In 2001, Snider was renting a room in J.K.’s three bedroom house in South Bend , Indiana . J.K. a lso rented out a room to F .L. and F.L.’s minor daughter B.A., born o n July 19, 1989. During that time, J.K. resided with her daughter, M.W. , and M.W.’s minor daughter , M.C., born on September 2, 1987. The record shows that M.W. and M.C. moved out o f J.K. ’s house but would frequently visit. For the times that M.C. was at J.K.’s house for a visit , she would spend time with B.A. , and they became friends.

[5] According to M.W , in the spring o f 2001 , when ever she and M.C. visited J.K

. in her Sound Bend home , she observe d B.A. spend ing a significant amount of time in Snider ’s room, both with the door open and closed. M.C. would often join B.A. and Snider in the room , but M.W. made sure the door was open at all times . In the summer of 2001, B.A.’s and M.C.’s relationship with Snider became sexual. Snider kissed B.A. and he also began touching her breast s andCourt of Appeals of Indiana | Memorandum Opinion 71A03

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- 334 | S e p t e m b e r 1 5 , 2 0 1 5 Page 3 of 13 vagina, both over and under her clothes. Snider also performed oral sex on B.A. , and B.A. discovered that Sn ider was not c ircumcised. These events partly occurred in Snider’s room, and in R.M.’s

— Snider’s girlfriend

— apartment in Mishawaka, Indiana . M.C. was often present when these events occurred. On

one afternoon in his room at J.K.’s house , Snider performed oral sex on M.C. in front of B.A. In addition, M.C. performed ora l sex on Snider after watching Snider perform oral sex on B.A. M.C. also fondled Snider’s penis until he

e

jaculat ed . When B.A. left the room, Snider threatened to kill M.C. if she disclos ed to anyone what had transpired

.
[6] After a 4 th of July party at R.M.’s apartment, R.M . observed Snider kiss B.A. and also sla p B.A. on her buttocks

. R.M. informed Snider that s he had seen him , and she reprimanded him for his in appropriate conduct with B.A. Snider responded by stating that it had been ongoing

. On another occasion that summer, B.A. and M.C. went to R.M.’s apartment. R.M., at Snider’s directive , instructed B.A. and M.C. to put on lingerie. Once the girls were dressed, Snider perf ormed oral sex on B.A. Snider then asked R.M. to perform oral sex on him , which she did . Snider also performed oral sex on M.C. Snider then asked B.A. to have intercourse, but B.A. refused. At some point, M.C. became uncomfortable and she tried calling for a ride home. Both Snider and R.M. seized the phone from M.C. and hid it. M.C. spen t the night at R.M.’s apartment.

[7] In the fall of 2001, B.A. moved to Elkhart, Indiana but soon returned to South Bend and her sexual relationship with Snider resumed. Snider continued toCourt of Appeals of Indiana | Memorandum Opinion 71A03

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- 334 | S e p t e m b e r 1 5 , 2 0 1 5 Page 4 of 13 engage in oral sex with B.A. and Snider promised B.A. that he was going to

m arry her. In April of 2002, B.A. confided in F.L. about being molested by Snider. As a concerned mother, F.L. called M.W. and advised her to talk to M.C. W hen M.W. questioned M.C., M.C. began crying and said, “I don’t want to tell you.” (Transcript p. 481). The following day, M.W. contacted the police.

[8] On May 8, 2002, the State filed an Information charging Snider with one Count of child molesting , a Class C felony on B.A. , two Counts of child molesting, Class A felonies on B.A , and one Count of child molesting, a Class A felony on M.C. Snider’s first jury trial commenced on October 13, 2003, but it resulted in a hung jury. A subsequent jury trial wa s held on March 26

- 30, 2004 , after which the jury found Snider guilty as charged . On May 11, 2004, the trial court sentenced Snider to four years on the Class C felony charge , and thirty years each for the three Class A felonies all to run concurren tly to the Class C felony

. Nonetheless, the trial court ordered that one of the thirty

- year sentence for the Class A felony offense to run consecutive to the rest . Snider’s agg regate sentence was sixty years.

[9] I n direct appeal, Snider v State 71A05

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- 523 (Ind. Ct. App. Feb. 15, 2005) , Snider contend ed that: (1) there was insufficient evidence to convict him on all charges since the State had failed to present evidence that B.A. was under fourteen years of age; and (2) there was insuffici ent evidence to convict him on all molesting charges since M.C.’s testimony was inherently im probable

. On the first is sue, we found that the State had established during trial that B.A. wasCourt of Appeals of Indiana | Memorandum Opinion 71A03

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- 334 | S e p t e m b e r 1 5 , 2 0 1 5 Page 5 of 13 thirteen years old when all the molestations took place . As for the second issue , we found that M.C.’s testimony was corroborated by B.A.’s testimony. Therefore , we affirmed Snider’s convictions.

[10] On November 7, 2005, Snider filed a pro se petition for post

- convict ion relief (PCR Petition) and a S tate public defender was appointed. On December 1, 2005, the S tate public defender entered an appearance for Snider , and on December 16, 2005, he moved for a change of judge and filed a V erified N otice of Present Inability to Investigate. On February 2, 2006, based on the motion, the post
- conviction court continued the proceeding pending a Certificate of Readiness from the public defender. On September 17, 2008, the post
conviction court accepted the public defender’s withdrawal from the c ase. On November 21, 2008, Snider entered an appearance on his own behalf. The following year, i n February 2009, the post
- conviction court directed Snider to advise it whether he was proceeding with his pro se PCR Petition . On March 9, 2010, Snider fil e d a m otion to a mend his PCR Petition , and th e State filed its response.Court of Appeals of Indiana | Memorandum Opinion 71A03

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- 334 | S e p t e m b e r 1 5 , 2 0 1 5 Page 6 of 13 [11] On February 13, 2014, t he post

- conviction court held an evidentiary hearing on Snider’s amended PCR P etition. 1 At the close of the hearing, the post

conviction court ordered the State to file its response

. On August 14, 2014, the post
- conviction court issued its finding s of fact and conclusion thereon denying Snider’s amended PCR P etition.

[12] Snider now appeals. Additional information will be provided as necessary.


### DISCUSSION AND DECISION I. Standard of Review
[13] Snider presents several arguments challenging the trial court’s denial of his PCR petition. In a post

- conviction proceeding, the petitioner must establish the grounds for relief by a p reponderance of the evidence. Ind. Pos t
- Conviction Rule 1(5); Overstreet v. State , 877 N.E.2d 144, 151 (Ind. 2007). When challenging the denial of post

- conviction relief, the petitioner appeals a negative judgment. Overstreet , 877 N.E.2d at 151 . To prevail, the petitioner must show that the evidence leads unerringly and unmistakably to a decision opposite that reached by the post

- conviction court. Id . We will disturb the post

- conviction

1 In his Appendix, S nider included his amended PCR P etition, the State’s response , and the Order denying his petition. The transcript of the evidentiary hearing is not before us because it was not requested in the Notice of Appeal. See Ind. Appellate Rule 9(F)(4).Court of Appeals of Indiana | Memorandum Opinion 71A03

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- 334 | S e p t e m b e r 1 5 , 2 0 1 5 Page 7 of 13 court’s decision only where the evidence is without conflict and leads to but one conclusion and the pos t
- conviction court reached the opposite conclusion. Henley v. State , 881 N.E.2d 639 (Ind. 2008).

[14] Where the post

- conviction court enters findings of fact and conclusions of law, as in the instant case, we do not defer to the post

- conviction court’s legal

c onclusions; the post

- conviction court’s findings and judgment will be reversed, however, only upon a showing of clear error that leaves us with a definite and firm conviction that a mistake has been made. Overstreet , 877 N.E.2d at 151.

[15] We begin by noting that Snider presented several free

- standing claims in his amended PCR P etition. Specifically, Snider set forth free

- standing claims to the effect that the prosecutor engaged in misconduct by : (1) misrepresenting facts in order to obtain an arrest warrant ; (2) eliciting false testimony from the State ’s witnesses ; and (3) violat ing a separation order since the State witnesses sat together during recess. Complaints that something went awry at trial are generally cognizable only when they s how deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal. Sanders v. State , 765 N.E.2d 591, 592 (Ind. 2002). Snider makes no attempt to demonstrate that any of the above issues were unavai lable to him at his trial or during his direct appeal. And insofar as those issues are not framed in the context of ineffective assistance of counsel, but instead are “free standing claim[s] of fundamental error,” they are not available for our revi ew of the post

conviction court’ s order. Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App.Court of Appeals of Indiana | Memorandum Opinion 71A03

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- 334 | S e p t e m b e r 1 5 , 2 0 1 5 Page 8 of 13 2008 ) (internal quot ation marks omitted ) , trans. denied. Accordingly, Snider has waived each of those issues, and we will not review them. See id . at 325.

[16] As for Sni der’s freestanding issue of prosecutorial misconduct, we note that this is not available on post

- conviction relief . We therefore proceed to address his ineffective assistance of counsel claims only.


### II. Ineffective Assistance of Counsel
[17] The standard by which we review claims of ineffective assistance of counsel is well established. In order to prevail on a claim of this nature, a defendant must satisfy a two

- pronged test , showing that: (1) his counsel’ s performance fell below an objective standard of re asonableness based on prevailing professional norms; and (2) there is a reasonable probability that, but for counsel’ s errors, the result of the proceeding would have been different. Johnson v. State , 832 N.E.2d 985, 996 (Ind. Ct. App. 2005), (citing Stri ckland v. Washington , 466 U.S. 668, 690, 694 (1984) , reh’g denied , trans . denied

. The two prongs of the Strickland test are separate and independent inquiries. Johnson , 832 N.E.2d at 996. Thus, “[i]f it is easier to dispose of an ineffectiveness claim o n the ground of lack of sufficient prejudice . . . that course should be followed.” Timberlake v. State , 753 N.E.2d 591, 603 (Ind. 2001) (quoting Strickland , 466 U.S. at 697) , reh’g denied; cert. denied, 537 U.S. 839 (2002).

[18] Counsel is afforded considerable discretion in choosing strategy and tactics and we will accord those decisions deference. Id. A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in theCourt of Appeals of Indiana | Memorandum Opinion 71A03

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- 334 | S e p t e m b e r 1 5 , 2 0 1 5 Page 9 of 13 exercise of rea sonable professional judgment. Id

. The Strickland Court recognized that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client. Id . Isolated mistakes, poor strate gy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. Id . Furthermore, 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. Johnson , 832 N.E.2d at 997.

[19] Here, Snider reiterates the issues raised in his amended PCR Petition where he argue s that he received ineffective assistance of trial counsel since hi s counsel : (1) failed to point out B.A.’s age at his trial ; (2) failed to call witness es ; (3) failed
to highlight inconsistencies in the State’s witness’s testimonies ; (4) failed to investigate; and (5) mad e prejudicial statements during the closing argume nts

. With respect to appellate counsel, Snider argues that counsel was ineffective for failing to raise the issue on B.A.’ s age i n his direct appeal. Notwithstanding Snider ’s numerous claims of his trial and appellate counsel ’s ineffectiveness, notably, the Order issued by the post

- conviction court on August 14, 2014, addresses a single issue

— whether trial and appellate counsel were ineffective for failing to present or contend B.A.’s age during Snider’s trial

.
[20] Indiana App ellate Rule 9(F)(4) provides: The Notice of Appeal shall designate all portions of the Transcript necessary to present fairly and decide the issues on appeal. If theCourt of Appeals of Indiana | Memorandum Opinion 71A03

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- 334 | S e p t e m b e r 1 5 , 2 0 1 5 Page 10 of 13 appellant intends to urge on appeal that a finding of fact or conclusion thereon is unsupported by the evidence or is c ontrary to the evidence, the Notice of Appeal shall request a Transcript of all the evidence. In Criminal Appeals, the Notice of Appeal must request the Transcript of the entire trial or evidentiary hearing, unless the party intends to limit the appeal to an issue requiring no Transcript.

[21] Our Supreme Court has held that, “[a]though not fatal to an appeal, failure to include a transcript works a waiver of any specifications of error which depend upon the evidence.” In re Walker , 665 N.E.2d 586, 588 (Ind. 1 996) (quoting Campbell v. Criterion Group , 605 N.E.2d 150, 160 (Ind. 1992), and discussing prior appellate rules). While we may address issues on appeal that do not challenge the trial court’s findings of fact, any arguments that depend upon the evidence presented at trial are waived. Fields v. Conforti , 868 N.E.2d 507, 511 ( Ind. Ct. App. 2007). As we stated above, the Order addresses a single issue. Presumably, all the above issues were heard or not, at Snider’s evidentiary hearing ; yet , S nider specifi cally did not request the transcript . Under the circumstances, we are unwilling to address other issues raised in Snider’s amended PCR P etition that went unaddressed in the Order. Snider, as the appellant, ha d the responsibility to support his claim by presenting a sufficient record so that this court may conduct an intelligent review of the issues. Since Snider did not provide us with his evidentiary transcript, our review is entirely limited to the finding o f facts and conclusion s reached in the Order.


### A. Trial Counsel
[22] Turning to Snider ’s first issue concerning whether trial counsel rendered ineffective assistance when counsel failed to argue B.A.’s age at trial, d uringCourt of Appeals of Indiana | Memorandum Opinion 71A03

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- 334 | S e p t e m b e r 1 5 , 2 0 1 5 Page 11 of 13 trial, the State present ed evidence that B.A. was born o n September 2, 1987, and that she was thirteen years old when Snider molested her

. T he charging Information indicated that t he Class C felony of child molesting took place on
or between the 1 st day of January and 1 st day of March 2001. B.A. testified during trial that in the spring of 2001, S nider touched her breast and vagina, both over and under her clothes. As for the two Class A felonies of child molesting on B.A., the charging Information stated that it occurred on or between the 1 st day of June and 1 st day of September , 2001

. The record shows that in the sum mer , Snider engaged in oral sex with B.A. O n another occasion that summer, B.A. and M.C. went to R.M. ’s apartment where B.A performed oral sex on Snider, and M.C. performed oral sex on Snider after watching Snider perform oral sex on B.A. In addition, B.A. testified that she was thirteen years old. In light of the foregoing , it is clear that at all times, B.A. was thirteen years old when Snider molested her. As such, Snider has not shown that he was prejudiced by his trial counsel’s failure to present or argue B.A.’s age during his trial

. 

### B. Appellate Counsel
[23] “As for appellate counsel, ineffective assistance claims ‘generally fall into three basic categories: (1) den ial 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 ) trans. denied ).

[24] “To show that counsel was ineffective for failing to raise an issue on appeal, the defendant must overcome the strongest presumption of adequate assistance,Court of Appeals of Indiana | Memorandum Opinion 71A03

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- 334 | S e p t e m b e r 1 5 , 2 0 1 5 Page 12 of 13 and judicial scrutiny is highly deferential.” Manzano v. State , 12 N.E.3d 321, 329 (Ind. Ct. App. 2014) (citing Reed , 856 N.E.2d at 1195 )

. Furthermore, [t] o evaluate the performance prong when counsel failed to raise issues upon appeal, we apply the following test: (1) whether the unraised issues are significant and obvious from the face of the record and (2) whether the unraised iss ues are “clearly stronger” than the raised issues. If the analysis under this test demonstrates deficient performance, then we examine whether “the issues which . . . appellate counsel failed to raise, would have been clearly more likely to result in reve rsal or an order for a new trial.” Ineffective assistance is very rarely found in cases where a defendant asserts that appellate counsel failed to raise an issue on direct appeal because the decision of what issues to raise is one of the most important st rategic decisions to be made by appellate counsel.
Id . at 329

- 30. (internal quot ation marks omitted). Here, Snider argues that his appellate counsel rendered ineffective assistance because he failed to argue in the direct appeal that B.A.’s age was not es tablished during his trial. As discussed above, at all times, B.A. was thirteen years old when she was molested . Even if appellate counsel presented that issue on appeal, it would not have been the stronger issue. See Bieghler, 690 N.E.2d at 194. As su ch, w e find that Snider has not demonstrated that but for his appellate counsel’s alleged error, there is a reasonable probability that the result of the proceeding would have been different. See McCary v. State , 761 N.E.2d 389, 392 (Ind. 2002) (holding t hat a petitioner must show a reasonable probability that but for counsel’s errors the result of the proce eding would have been different ). In light of the foregoing, we find that Snider has failed to show that his appellate counsel’s performance was defic ient or that he was prejudiced as a result ofCourt of Appeals of Indiana | Memorandum Opinion 71A03

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- 334 | S e p t e m b e r 1 5 , 2 0 1 5 Page 13 of 13 counsel’s performance, thus defeating his claim of ineffective assistance of counsel.


### CONCLUSION
[25] In conclusion, we find that Snider did not establish ineffective assistance of trial and appellate counsel.

[26] Aff irmed.

[27] Bailey, J. and Barnes, J. concur