Court of Appeals of Indiana | Memorandum Decision 49A02-1412-PC-891 | November 30, 2015 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.

APPELLANT PRO SE

Devon Sterling

Pendleton, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Eric P. Babbs

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Devon Sterling,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

November 30, 2015

Court of Appeals Case No.

49A02-1412-PC-891

Appeal from the Marion Superior 

Court

The Honorable Kurt M. Eisgruber, 

Judge

Trial Court Cause No.

49G01-0706-PC-105725

Robb, Judge.
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Case Summary and Issues

[1] Following a jury trial, Devon Sterling was found guilty of murder. The trial 

court entered judgment of conviction and sentenced Sterling to sixty years 

executed in the Indiana Department of Correction. On direct appeal, we 

affirmed Sterling’s conviction. Sterling v. State, No. 49A05-0910-CR-606 (Ind. 

Ct. App. Aug. 11, 2010), trans. denied. Thereafter, Sterling filed a petition for 

post-conviction relief wherein he alleged ineffective assistance of trial counsel

and newly discovered evidence. The post-conviction court denied Sterling’s 

petition. Sterling, pro se, now appeals the denial of post-conviction relief, 

raising three issues for our review, which we consolidate and restate as: 1) 

whether the post-conviction court erred in concluding Sterling’s trial counsel 

was not ineffective; and 2) whether Sterling’s post-conviction counsel rendered 

ineffective assistance. Concluding trial and post-conviction counsel were not

ineffective, we affirm.

Facts and Procedural History

[2] We summarized the facts and procedural history of this case in Sterling’s direct 

appeal, 

On June 8, 2007, Sterling was attending the same neighborhood 

block party as the decedent, Dewayne Butts. Several months 

before, there had been a dispute between Dewayne and Sterling’s

father concerning the ownership of a dog that, at the time, 

Dewayne had at his mother’s home. A physical argument 

ensued between Dewayne and Sterling’s father, and the dog was 

given to the Sterlings. Because of this prior confrontation, both 
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Dewayne and his girlfriend, Marie Ball, were familiar with 

Sterling at the time of the block party.

Before leaving the block party, Dewayne and Sterling had a tense 

encounter and had to be separated by Marie. Dewayne and 

Marie headed to her vehicle, accompanied by Marie’s daughter, 

DeAsia, and Dewayne’s mother, Judy Butts, and her niece, 

Rockita Brown. Before leaving, while all five were seated inside 

Marie’s vehicle, Dewayne and Marie were both shot multiple 

times. The shooter, standing outside the passenger’s window, 

was later identified by both Marie and Rockita as Sterling. 

Dehaven Butts, who was standing near the vehicle at the time of 

the shooting, identified Sterling as the man he witnessed running 

from the vehicle in the moments after the shooting. Dewayne

died as a result of the gunshot wounds.

Sterling turned himself into police on June 10, 2007, and was 

accompanied by his family, who had retained counsel for him. 

Detective David Labanauskas was aware that they were awaiting 

the arrival of counsel, but the interrogation proceeded when 

Detective Labanauskas learned that the attorney had been 

delayed. The State subsequently charged Sterling with the 

murder of Dewayne and the attempted murder of Marie.

The case proceeded to a jury trial on September 29, 2008, during 

which Sterling testified about the dog incident, a .40–caliber gun 

he owned, and an asserted alibi defense that he subsequently 

withdrew at a second trial. The trial court [sic] resulted in a hung 

jury, and a mistrial was declared.

A new trial commenced on July 20, 2009. Sterling’s motion to 

suppress the statement he made to the police was denied before 

the second trial. The second trial court admitted Sterling’s

statement to Detective Labanauskas, along with a redacted 

version of Sterling’s testimony from the first trial, evidence of the 
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.40–caliber bullet and casings found in the vicinity of the crime, 

and evidence of the dog incident. However, the trial court did 

not allow Sterling to introduce evidence of another suspect.

At Sterling’s second trial, Marie and Rockita both identified 

Sterling as the shooter with 100% certainty. In addition, 

Dehaven testified that he was certain he saw Sterling fleeing the 

scene in the moments after the shooting. On July 23, 2009, the 

jury found Sterling guilty of murder and not guilty of attempted 

murder. 

Id. at *1-2.

[3] On December 9, 2009, while a direct appeal was pending, Sterling filed a pro se

petition for post-conviction relief, alleging judicial misconduct and that his trial 

counsel, Robert Hammerle, rendered ineffective assistance.

1

 Because Sterling’s 

direct appeal was still pending and Hammerle was acting as Sterling’s appellate 

counsel, the post-conviction court granted the State’s motion to dismiss the 

post-conviction petition. Hammerle continued as appellate counsel in the direct 

appeal and argued on Sterling’s behalf the trial court abused its discretion in 

 

1 As to the judicial misconduct claim, Sterling requested a new judge hear his post-conviction petition 

because the trial court judge allegedly showed prejudice and bias during the trial. As to the claim of 

ineffective assistance of trial counsel, Sterling alleged counsel failed to make proper objections at the 

defendant’s trial and sentencing hearing, and counsel failed to call Sterling’s key witnesses. Relevant here, 

Sterling specified,

[C]ounsel should have made a verbal objection, are [sic] requested a new trial or made some 

jesture [sic] to the court at the defendant [sic] sentencing hearing when the State’s “Marie Ball” 

key witness made an inconsistent statement, different from the one that was made at the 

defendant’s second trial. (see both second and sentencing transcripts) One saying that the 

defendant was the shooter, other saying he was not the shooter.

Appellant’s Appendix at 53. Sterling also claimed Marie Ball’s testimony should have been excluded as 

inadmissible hearsay.
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admitting, and excluding, certain evidence. Finding no reversible error, we 

affirmed Sterling’s conviction.

[4] On April 4, 2011, Sterling re-filed his pro se petition for post-conviction relief. 

On May 2, 2012, Sterling, through post-conviction counsel Hillary Bowe Ricks, 

amended his petition.

2

 However, on June 28, 2012, Sterling filed a pro se

motion to withdraw Bowe Ricks as counsel, and a motion to withdraw his postconviction petition without prejudice. The post-conviction court granted 

Sterling’s motions. Two weeks later, Sterling filed a motion to reinstate both 

his petition for post-conviction relief, and Ricks as his post-conviction counsel. 

The post-conviction court granted the motion. 

[5] On October 1, 2013, Sterling amended his petition for the final time. Sterling’s 

petition alleged newly discovered evidence existed and Hammerle rendered 

ineffective assistance in failing to call key witnesses and in failing to object to 

certain comments made by the deputy prosecutor. Sterling did not allege

Hammerle rendered ineffective assistance as appellate counsel.3 On December 

 

2

In this amendment, Sterling claimed only ineffective assistance of trial counsel. Specifically, Sterling 

claimed trial counsel failed to object to improper comments by the deputy prosecutor and failed to call key 

witnesses. The amendment did not include any allegation the State used the perjured testimony of Marie 

Ball to convict Sterling.

3 We note there is a single reference to a claim of ineffective assistance of appellate counsel in both the State’s 

proposed findings of fact and conclusions of law, and the post-conviction court’s findings of fact and 

conclusions of law denying Sterling’s petition for post-conviction relief. However, neither the State, Sterling, 

nor the post-conviction court addressed at the evidentiary hearing whether Hammerle was deficient as 

appellate counsel. In addition, we note the record does not include Sterling’s proposed findings of fact and 

conclusions of law, assuming he did, in fact, file such proposed findings. Therefore, we presume the

references to ineffective assistance of appellate counsel were due to the fact Hammerle represented Sterling at 

trial and on direct appeal. 
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8, 2014, the post-conviction court entered its findings of fact and conclusions of 

law denying Sterling’s petition for post-conviction relief. The post-conviction 

court concluded: 1) Sterling presented no evidence or argument to support his 

claim of newly discovered evidence;

4 and 2) Hammerle was not deficient in 

failing to call certain witnesses and in failing to object to the deputy prosecutor’s 

comments. Sterling, pro se, now appeals. Additional facts will be provided as 

necessary.

Discussion and Decision

I. Post-Conviction Standard of Review

[6] “Post-conviction proceedings do not afford the petitioner an opportunity for a 

super appeal, but rather, provide the opportunity to raise issues that were 

unknown or unavailable at the time of the original trial or the direct appeal.” 

Turner v. State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012), trans. denied. Postconviction procedures create a narrow remedy for subsequent collateral 

challenges to convictions, and those challenges must be based on the grounds 

enumerated in post-conviction rules. Id. The petitioner must establish his 

claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). 

 

4 On appeal, Sterling does not argue the post-conviction court erred in concluding he presented no evidence 

or argument to support his claim of newly discovered evidence.
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[7] A petitioner who has been denied post-conviction relief faces a “rigorous 

standard of review” on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001). 

In reviewing the judgment of a post-conviction court, we consider only the 

evidence and reasonable inferences supporting the judgement. Hall v. State, 849 

N.E.2d 466, 468 (Ind. 2006). We may not reweigh the evidence or reassess the 

credibility of the witnesses. Id. The post-conviction court’s denial of postconviction relief will be affirmed unless the evidence leads “unerringly and 

unmistakably to a decision opposite that reached by the post-conviction court.” 

McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002). Only where the evidence is 

without conflict and leads to but one conclusion, and the post-conviction court 

reached the opposite conclusion, will the court’s findings or conclusions be 

disturbed as being contrary to law. Hall, 849 N.E.2d at 469. Finally, we do not 

defer to the post-conviction court’s legal conclusions, but do accept its factual 

findings unless they are clearly erroneous. Ind. Trial Rule 52(A); Stevens v. 

State, 770 N.E.2d 739, 746 (Ind. 2002), cert. denied, 540 U.S. 830 (2003).

II. Ineffective Assistance of Trial Counsel

[8] We review claims of ineffective assistance of counsel under the two-prong test 

set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim 

of ineffective assistance of counsel, the petitioner must show 1) his counsel’s 

performance was deficient, and 2) the lack of reasonable representation 

prejudiced him. Id. at 687-88. These two prongs are separate and independent 

inquiries. Manzano v. State, 12 N.E.3d 321, 326 (Ind. Ct. App. 2014), trans. 

denied, cert. denied, 135 S.Ct. 2376 (2015). Therefore, “if it is easier to dispose of 
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an ineffectiveness claim on one of the grounds instead of the other, that course 

should be followed.” Talley v. State, 736 N.E.2d 766, 769 (Ind. Ct. App. 2000). 

[9] To satisfy the first prong, the petitioner must show counsel’s representation fell 

below an objective standard of reasonableness and counsel committed errors so 

serious petitioner did not have the “counsel” guaranteed by the Sixth 

Amendment of the United States Constitution. Garrett v. State, 992 N.E.2d 710, 

719 (Ind. 2013). To satisfy the second prong, the petitioner must show a 

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

would have been different. Id. “A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 

694. 

[10] Under this standard, “[c]ounsel is afforded considerable discretion in choosing 

strategy and tactics, and we will accord those decisions deference.” Timberlake 

v. State, 753 N.E.2d 591, 603 (Ind. 2001), cert. denied, 537 U.S. 839 (2002). We 

recognize a strong presumption counsel rendered adequate legal assistance. Id. 

To overcome this presumption, the defendant must offer “strong and 

convincing evidence . . . .” Smith v. State, 822 N.E.2d 193, 202 (Ind. Ct. App. 

2005), trans. denied. 

[11] Here, Sterling contends Hammerle rendered ineffective assistance in failing to 

object to statements made by the deputy prosecutor during the State’s closing 

argument and in failing to call key witnesses. As a result, Sterling claims he 
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suffered prejudice because had Hammerle rendered reasonable representation, 

the result of trial may have been different. We disagree.

A. Failure to Object

[12] “To prove ineffective assistance for failure to object to the State’s closing 

argument, a defendant must prove that his objections would have been 

sustained, the failure to object was unreasonable, and that he was prejudiced.” 

Lambert v. State, 743 N.E.2d 719, 734 (Ind. 2001) (citation omitted), cert. denied, 

534 U.S. 1136 (2002). During closing argument, the deputy prosecutor alleged 

Hammerle had attempted to confuse and deceive the jury during trial:

Hammerle is very, very good. I’ve been doing this a long time, 

and I like to think I’m pretty good at this. He’s very good. But 

you know what? Think about some of the things that were done 

there. Think about some of the questions. I had to write them 

down. I don’t usually have any notes, but I wrote them down. I 

can’t – I can’t characterize it any other way than an effort to 

confuse you or deceive you. He asked questions to the detective: 

Did Marie ever tell you that in her statement that the person that 

did it was the guy with the dog, the guy with the dog incident? 

No. Why do you ask that question? No. Because he’s got to get 

you to believe that she’s lying. Do you know what she said? It 

was the guy who Wayne hit with the nose. Aren’t they the same 

people? Wasn’t it the same person? Why does he ask you that 

question unless he’s trying to confuse you, make Marie out to be 

somebody who can’t remember or is telling you – not telling you 

the truth. It was the same person. She didn’t say it was the dog 

incident, no. She said it was the guy who Dewayne hit, his dad, 

with the nose. Aren’t those the same people? But why do that 

unless he’s trying to mislead you? You know, the glasses. 

Marie, you wear glasses, don’t you. He sits up there the whole 

time, he has her read the whole time and then tries to persuade 
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you that she’s got some vision problem so she couldn’t identify 

anybody. She didn’t have any problem reading anything that 

was there, but it’s trying to confuse you. Poor Rockita. One of 

the other things he said: Rockita, well, didn’t Judy pull you 

down after the shots? He knew she didn’t pull him [sic] down. 

He knows that. He’s got all those statements – the statement 

they made to the police, the deposition that was taken by Ms. 

Devane, the prior hearing, today. He had them all charted. Do 

you see all the notes (inaudible) there? He’s got them all charted 

like this. He knew very well that Judy didn’t pull him down, but 

he asked her leading questions: Didn’t Judy pull you down? 

Because if she says yes, then he’s going, well, then you couldn’t 

possibly have seen. Then do you know what he said? Well, 

didn’t you have your face over here like that? Well, yeah. He 

knew that. He knew that already. You only say those kinds of 

things when you’re a defense attorney if you’re trying to confuse, 

trying to create the illusion of reasonable doubt. So when he 

comes up here in a little bit, he’s going to say, you know, you 

might think [Sterling] did it, but that’s not good enough. Maybe 

he probably did it, but that’s not good enough. It’s proof beyond 

a reasonable doubt. You know, maybe he did it, I don’t know, 

but that’s not good enough. He used these confusion tactics, 

these lawyer tactics that are designed to try to create the illusion 

of reasonable doubt to confuse you . . . .

Post-Conviction Relief (“PCR”) Hearing Exhibit C at 20-23. 

[13] Hammerle did not object to the statements. Instead, Hammerle specifically 

addressed the deputy prosecutor’s statements in his closing argument:

If it please the Court, ladies and gentlemen, [Deputy Prosecutor] 

Cummings. No man in a free country should be denied the right 

to counsel in a fair trial. No man in a free county shall be denied 

the right to counsel in a fair trial. Who said that? John Adams. 

When? When he took up the case of Captain Preston at the 
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Boston Massacre, when everybody told him to stay away from 

him because the emotions of the community wanted that man 

convicted, but John Adams knew that founding this country, put 

into our Constitution, is the fact that if we’ve got a country worth 

living in, if we’ve got a country where we’re going to protect our 

rights, then you’ve got to stand tall with an accused and he’s got 

the right to counsel. I will not apologize for that. I am proud of 

it . . . .

* * *

But let me tell you this: That [Deputy Prosecutor] Cummings 

would stand here and take issue, that would take issue with me 

questioning the witnesses? Cross-examination is a 

Constitutionally guaranteed right. That he would belittle me, 

make fun of me because I would exercise that right, somehow 

cast aspersions or doubt that I’m something less or something 

sinister? This is as [sic] truth-seeking process . . . .

Id. at 24-25. At the post-conviction evidentiary hearing, Hammerle stated why 

he did not object at trial:

I’ve been around the horn too many times and tried too many of 

these type [of] cases where what I’m not going to do, when I still 

have my day and time to argue, is to get lost and let the jury 

think that I’m simply whining or can’t take a hard shot.

PCR Hearing Transcript at 57. 

[14] It is evident Hammerle’s strategy to defuse the impact of the deputy 

prosecutor’s statements was not to object, but to specifically address the 

statements, and Sterling’s constitutional rights, during his closing argument. 

See Carter v. State, 738 N.E.2d 665, 676 (Ind. 2000) (noting it was reasonable for 

defense counsel to decide that objecting to comments made by the State during 
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closing argument “would only agitate the jury when it was so close to getting 

the case”). Counsel is afforded considerable discretion in choosing strategy and 

tactics, and we are not persuaded Hammerle’s failure to object was 

unreasonable, and we are therefore not led to a conclusion opposite that 

reached by the post-conviction court. See McCary, 761 N.E.2d at 391.

B. Failure to Call Witnesses

[15] “A decision regarding what witnesses to call is a matter of trial strategy which 

an appellate court will not second-guess, although a failure to call a useful 

witness can constitute deficient performance.” Brown v. State, 691 N.E.2d 438, 

447 (Ind. 1998) (citation omitted). We will not declare counsel ineffective for 

failure to call a particular witness absent a clear showing of prejudice. Grigsby v. 

State, 503 N.E.2d 394, 397 (Ind. 1987). 

[16] The post-conviction court found Sterling’s counsel in his first trial presented the 

jury with Sterling’s proposed witnesses, his version of the facts, and his alibi 

defense. That trial resulted in a hung jury, with the jury voting 11-1 to convict. 

At the second trial, Hammerle took over as trial counsel and contemplated a 

change in strategy. The post-conviction court found Hammerle “reviewed all 

the discovery that was available to him from the first trial . . . and interviewed al 

[sic] of [Sterling’s] proposed witnesses.” Appellant’s App. at 140. 

[17] During the post-conviction hearing, Hammerle stated he interviewed Sterling’s 

proposed witnesses and not one witness could establish a credible and viable

alibi for Sterling. Moreover, Hammerle testified many of the witnesses would 
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have lacked credibility in front of a jury and some would have corroborated the 

State’s theory by placing Sterling at the scene of the crime, thus mitigating an 

attempt to create reasonable doubt.5 After interviewing the witnesses and 

reviewing all of the discovery available from the first trial, Hammerle decided 

not to proceed with Sterling’s alibi defense. Instead, Hammerle pursued an 

aggressive reasonable-doubt defense by attacking the credibility of the State’s 

eyewitnesses—a decision he made after consulting with Sterling. See 

Timberlake, 753 N.E.2d at 603 (“Counsel is afforded considerable discretion in 

choosing strategy and tactics, and we will accord those decisions deference.”). 

Sterling fails to show he suffered prejudice due to Hammerle’s strategic decision 

not to call the proposed witnesses. Therefore, we are not led to a conclusion 

opposite that reached by the post-conviction court. See McCary, 761 N.E.2d at 

391.

III. Ineffective Assistance of Post-Conviction Counsel

[18] Sterling argues his post-conviction counsel rendered ineffective assistance by 

failing to raise whether Hammerle, in his capacity as both trial and appellate 

counsel, rendered ineffective assistance by failing to address the State’s alleged 

use of perjured testimony. The State counters, 1) Sterling’s argument that post-

 

5

For example, one of Sterling’s proposed witnesses, Quianna Johnson, would have testified the shooter’s 

body type did not match Sterling’s body type. However, her testimony would have also made “the fatal 

corroboration of the State’s case that the individuals came from across an alley from across the street, which 

was the very place that other witnesses had placed Mr. Sterling walking.” PCR Tr. at 53. Thus, this

testimony not only would have likely defeated Sterling’s alibi defense, but would likely mitigate an attempt at 

creating reasonable doubt.
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conviction counsel rendered ineffective assistance does not present a reviewable 

claim, because counsel appeared and represented Sterling in a procedurally fair 

setting, and 2) Sterling procedurally defaulted on any claim the State used 

perjured testimony at trial because he did not include the claim in his direct 

appeal. 

[19] Although there are claims of ineffective assistance of trial and appellate counsel 

in regard to the allegedly perjured testimony, we do not interpret these as 

freestanding claims because they merely form the basis of Sterling’s claim of 

ineffective assistance of post-conviction counsel. Therefore, our sole focus is

whether Sterling’s post-conviction counsel rendered ineffective assistance.

[20] There is no federal or state constitutional right to counsel in post-conviction 

proceedings. Hill v. State, 960 N.E.2d 141, 145 (Ind. 2012). 

We therefore apply a lesser standard responsive more to the due 

course of law or due process of law principles which are at the 

heart of the civil post-conviction remedy. We adopt the standard 

that if counsel in fact appeared and represented the petitioner in a 

procedurally fair setting which resulted in a judgment of the 

court, it is not necessary to judge his performance by the rigorous 

standard set forth in [Strickland].

Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989). 

[21] Here, post-conviction counsel actively advocated for Sterling throughout the 

post-conviction proceedings; she twice amended the petition for post-conviction 

relief, appeared at three separate evidentiary hearings, and subpoenaed 

witnesses. There is nothing in the record suggesting counsel did not appear and 
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represent Sterling in a procedurally fair setting that resulted in a judgment of the 

court. Therefore, we are not persuaded Sterling received ineffective assistance 

of post-conviction counsel. 

Conclusion 

[22] The post-conviction court did not err in denying Sterling’s petition for postconviction relief. Because Sterling fails to demonstrate he received ineffective 

assistance of trial or post-conviction counsel, we affirm the post-conviction 

court’s denial of post-conviction relief.

[23] Affirmed.

Vaidik, C.J., and Pyle, J., concur.