Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 1 of 21

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

Rickie B. Gilliam

Carlisle, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

George P. Sherman

Supervising Deputy

Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Rickie Bill Gilliam,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent. 

November 16, 2018

Court of Appeals Case No.

79A02-1706-PC-1390

Appeal from the Tippecanoe 

Superior Court

The Honorable Steven P. Meyer, 

Judge

Trial Court Cause No.

79D02-1406-PC-4

Robb, Judge.
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Case Summary and Issues

[1] Following a jury trial, Rickie Gilliam was convicted of two counts of attempted 

murder, both Class A felonies; being a serious violent felon in possession of a 

firearm, a Class B felony; attempted battery, a Class C felony; and maintaining 

a common nuisance, a Class D felony. The trial court sentenced Gilliam to 

sixty-three years in the Indiana Department of Correction. We affirmed 

Gilliam’s convictions on direct appeal. Gilliam v. State, No. 79A02-1206-CR482 (Ind. Ct. App. Apr. 1, 2013), trans. denied. Thereafter, Gilliam filed a 

petition for post-conviction relief alleging ineffective assistance of trial counsel 

which was denied by the post-conviction court. Gilliam, pro se, now appeals 

the denial of post-conviction relief, raising two issues for our review which we 

restate as (1) whether the post-conviction court erred in denying Gilliam’s 

petition for post-conviction relief, and (2) whether Gilliam received ineffective 

assistance of post-conviction counsel. Concluding the post-conviction court did 

not err and Gilliam did not receive ineffective assistance of post-conviction 

counsel, we affirm. 

Facts and Procedural History 

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

appeal:

Heather Short and Gilliam were involved in a romantic 

relationship for approximately three years and lived together in 

Lafayette with their three-year-old son. In December 2010, the 

couple argued and Gilliam pulled out a gun. Gilliam stated that 
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he would “kill [Heather] with the gun if [she] didn’t knock [her] 

sh*t off.” Heather was scared and would not leave the couple’s 

bedroom. At some point, Heather sent a text message to her 

brother, Jeremiah Short, who came to the house and went to 

Heather’s bedroom window. Jeremiah talked to Heather and 

wanted her to leave with him; however, Heather declined.

On January 8, 2011, Heather and Gilliam ended their 

relationship. Heather went to Jeremiah’s to stay, and at some 

point, Heather and Jonathan Beard, Jeremiah’s roommate, began 

a sexual relationship. On January 14, 2011, Heather drove Beard 

to his job at Penguin Liquors. Heather asked Beard if he knew of 

any place where she could stay that night because she “was 

trying to avoid her son’s father.” Beard offered to rent her a 

motel room for the weekend. After Beard’s shift ended at 2:00 

a.m., Heather picked him up and drove to an Economy Inn, 

where Beard paid for a room.

After pulling up to one of the rooms, Heather and Beard noticed 

that the number on the door was not the same room that he had 

rented. Heather put the car in reverse, but at that moment, 

Gilliam drove up in a red vehicle. Gilliam exited his car and 

started shooting at Heather and Beard with a handgun. 

Numerous rounds hit the body of the vehicle and the windows. 

Beard hunched down to avoid being shot and Heather 

accelerated. Gilliam fired another shot that struck Heather’s 

windshield.

After Heather drove away, she contacted 911 and reported that 

Gilliam had tried to kill her and Beard. Shortly after the call, 

several police officers went to Gilliam’s residence and noticed a 

red Chevy Impala parked in the driveway, but the license plate 

on the vehicle was registered to Gilliam’s red Pontiac Grand 

Prix. The Impala was slightly covered in snow, and the engine 

was cold.
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The officers set up a perimeter around the house and although a 

television was on, no one was observed entering or exiting the 

house. Later that morning, a SWAT team searched the house 

and confirmed that no one was inside. The officers discovered 

twelve rounds of .9mm Ruger ammunition, as well as several 

bags of marijuana, marijuana cigarettes, rolling papers, and 

digital scales. Several .25 caliber shell casings were found in the 

motel parking lot where the shooting occurred.

On the day of the shooting, Heather and Beard positively 

identified Gilliam from a photo array. Later that week, 

Jeremiah, who was Gilliam’s friend, observed Gilliam driving a 

red Pontiac Grand Prix. On February 14, 2011, the State 

charged Gilliam with the following offenses:

Count I—Attempted Murder, a class A felony

Count II—Attempted Murder, a class A felony

Count III—Attempted Aggravated Battery, a class B felony

Count IV—Attempted Aggravated Battery, a class B felony

Count V—Attempted Battery, a class C felony

Count VI—Attempted Battery, a class C felony

Count VII—Criminal Recklessness, a class C felony

Count VIII—Carrying a Handgun Without a License, a class A 

misdemeanor

Count IX—Pointing a Firearm, a class D felony

Count X—Pointing a Firearm, a class D felony

Count XI—Dealing in Marijuana, a class D felony

Count XII—Possession of Marijuana, a class D felony,

Count XIII—Maintaining a Common Nuisance, a class D felony

Count XIV—Serious Violent Felon in Possession of a Firearm, a 

class B felony

On December 29, 2011, the State filed a notice under Indiana 

Evidence Rule 404(b), indicating that the State intended to offer 

evidence of the previous incident in December 2010 involving 

Gilliam’s threat to kill Heather with a handgun.
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Following a hearing on December 30, 2011, the trial court ruled 

that evidence of the earlier incident would be admissible because 

it was relevant to show motive, intent, identity, and absence of 

mistake and accident. The trial court also noted that it would 

give a limiting instruction to the jury.

On April 9, 2012, Beard spoke with Officer Michael Barthelemy 

and again identified Gilliam as the shooter. Beard told Officer 

Barthelemy that Gilliam was approximately five feet away when 

the shooting occurred.

Gilliam’s jury trial commenced on April 16, 2012. At trial, 

Heather’s account of the events changed in several respects. For 

instance, Heather had previously told police that Gilliam had 

been dealing in marijuana. However, at trial, she claimed that 

she did not remember making that statement. When asked about 

the fact that Gilliam had threatened to kill her, Heather claimed 

that she “guessed” that was accurate. Similarly, although 

Heather had previously stated that she was afraid of Gilliam 

when he threatened to kill her, she claimed at trial that she was 

not really scared. Finally, although Heather had previously 

reported to the police that she had seen Gilliam after the first 

gunshot, she claimed at trial that she assumed it was him because 

she had seen the red car.

Laura Berry-Bermann, the Executive Director for the Indiana 

Coalition Against Domestic Violence, also testified at trial. 

Berry-Bermann testified that it is not unusual for a woman in 

circumstances similar to those experienced by Heather to 

subsequently recant or modify a prior identification of the person 

who committed the charged offense. Berry-Bermann stated that 

there are many possible explanations for this phenomenon, 

including a fear of retaliation and future violence, fear of the loss 

of income and support for a child that they may share in 

common, and loyalty to the father of their child.
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Following the presentation of evidence, Gilliam was found guilty 

as charged on all counts. The trial court conducted a bench trial 

on the serious violent felon charge, and Gilliam was also found 

guilty on that count.

At the sentencing hearing, the trial court entered judgments of 

conviction on Counts I, II, XI, XIII and XIV. Gilliam was 

sentenced to an aggregate term of sixty-three years of 

incarceration[.]

Id. at *1-3 (citations omitted). 

[3] Gilliam raised three issues on direct appeal: (1) whether trial court erred in 

admitting evidence of a prior act of violence against one of the victims in 

violation of Indiana Evidence Rule 404(b); (2) whether the evidence was 

sufficient to support the convictions because the victims did not unequivocally 

identify him as the shooter; and (3) whether his aggregate sixty-three-year 

sentence was inappropriate when considering the nature of the offenses and his 

character. Id. at *1. A panel of this court affirmed in all respects. Id. at *6. 

[4] Gilliam sought post-conviction relief alleging ineffective assistance of trial 

counsel. Following an evidentiary hearing in which post-conviction counsel 

declined to call Gilliam’s trial counsel to testify as a witness, the post-conviction 

court issued findings of fact and conclusions of law denying his petition on June 
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23, 2016.

1

 Thereafter, Gilliam timely filed a motion to correct error. Following 

a hearing, the post-conviction court denied Gilliam’s motion to correct error on 

May 26, 2017. Gilliam now appeals. 

Discussion and Decision 

I. Standard of Review

[5] Post-conviction proceedings are not an opportunity for a super-appeal; rather, 

they create a narrow remedy for subsequent collateral challenges to convictions 

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

Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839 

(2002). A claim of ineffective assistance of counsel is properly presented in a 

post-conviction proceeding if the claim is not presented on direct appeal. Id. 

Post-conviction proceedings are civil in nature and a petitioner must therefore 

establish his claims by a preponderance of the evidence. Ind. Post-Conviction 

Rule 1(5).

[6] On appeal from the denial of post-conviction relief, a petitioner faces a 

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

In reviewing the judgment of a post-conviction court, we do not reweigh the 

 

1 We commend the post-conviction court for the clarity and thoroughness of its factual findings which have 

aided in our review. However, due to an error with the electronic noticing system, the parties were not 

notified of the post-conviction court’s decision until February 3, 2017. Therefore, the post-conviction court 

directed the clerk to reissue the court’s prior decision and provided that any motion to correct error or notice 

of appeal would be due within thirty days. 
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evidence or reassess witness credibility and we consider only the evidence and 

reasonable inferences supporting the judgment. Hall v. State, 849 N.E.2d 466, 

468-69 (Ind. 2006). We will affirm the post-conviction court’s denial of postconviction relief 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). 

[7] Furthermore, we emphasize that pro se litigants without legal training are held 

to the same legal standards as licensed attorneys. Basic v. Amouri, 58 N.E.3d 

980, 983 (Ind. Ct. App. 2016). Pro se litigants must adhere to the rules of 

procedure and must be prepared to accept the consequences of their failure to 

do so, including waiver for failure to present cogent argument on appeal. Id. at 

983-84. An appellate brief should be prepared so that each judge, considering 

the brief alone and independent of the transcript, can intelligently consider each 

question presented. Pluard ex rel. Pluard v. Patients Comp. Fund, 705 N.E.2d 

1035, 1038 (Ind. Ct. App. 1999), trans. denied. We “will not search the record to 

find a basis for a party’s argument” nor will we “search the authorities cited by 

a party in order to find legal support for its position.” Thomas v. State, 965 

N.E.2d 70, 77 n.2 (Ind. Ct. App. 2012), trans. denied. We must not become an 

“advocate for a party, or address arguments that are inappropriate or too poorly 

developed or expressed to be understood.” Basic, 58 N.E.3d at 984.

[8] In the course of his fourteen-page Brief of Appellant, Gilliam raises numerous 

issues for our review, only two of which are formally framed as questions 

presented. Almost all of these issues, however, are “too poorly developed or 
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expressed to be understood.” Id. Although we endeavor to discuss several 

issues despite their waiver, we deem any and all remaining issues not discussed

herein to be waived. Id. at 983-84. 

II. Ineffective Assistance of Trial Counsel 

[9] Gilliam first claims the trial court erred in denying his petition for postconviction relief on his claim that he received ineffective assistance of trial 

counsel. We disagree. 

[10] We review claims of ineffective assistance of trial 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 his trial 

counsel’s performance was deficient and the lack of reasonable representation 

prejudiced him. Id. at 687. 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, 718-19 (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. at 719. “A reasonable 

probability is a probability sufficient to undermine confidence in the outcome.” 

Strickland, 466 U.S. at 694. 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).

[11] Notably, we recognize a strong presumption counsel rendered adequate legal 

assistance and afford trial counsel “considerable discretion in choosing strategy 

and tactics, and we will accord those decisions deference.” Timberlake, 753 

N.E.2d at 603. Therefore, in order to overcome this strong presumption, a

petitioner must offer “strong and convincing evidence” to the contrary. Smith v. 

State, 822 N.E.2d 193, 202 (Ind. Ct. App. 2005), trans. denied.

A. Laura Bermann’s Testimony 

[12] Gilliam alleges his trial counsel was ineffective for failing to object to Laura 

Bermann’s testimony on two different bases. In order to prove ineffective 

assistance of counsel due to the failure to object, Gilliam must prove that an 

objection would have been sustained if made and that he was prejudiced by the 

failure. Timberlake v. State, 690 N.E.2d 243, 259 (Ind. 1997), cert. denied, 525 

U.S. 1073 (1999). 

[13] The post-conviction court found:

[Heather] was asked at trial about the threat Gilliam made to her 

a month prior where Gilliam pulled a gun on her, threatened to 

kill her, and [Heather] texted her brother. [Heather] claimed she

did not recall why Gilliam pulled a gun on her or what Gilliam 

said to her at the time. The State of Indiana called Laura 

Bermann, Executive Director of Indiana Coalition Against 

Domestic Violence to testify. The State posed a hypothetical 

question to Ms. Bermann which consisted of facts similar to 
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[Heather’s] situation with Gilliam and asked whether, based 

upon her training and experience, it would be unusual for a 

victim to later recant or take back what she said regarding the 

identification of the person the night of the shooting. Gilliam’s 

trial counsel initially objected to the hypothetical because it failed 

to include all relevant factors of the relationship. The State reworded the hypothetical question to include additional facts. 

Ms. Bermann then stated her opinion, without objection, that it 

would not be unusual for a woman who had gone through such

an experience to later recant or take back what she said regarding 

the identification of the person the night of the shooting. [Trial 

Transcript at 227-30]. She explained there are several barriers for

victims of domestic violence to break away from a relationship 

including: fear of retaliation; loss of income and support; loyalty; 

lack of independence; and belief a victim can change an

individual’s behavior.

Appellant’s Appendix, Volume II at 18. 

[14] First, Gilliam claims,

A proper foundation was not laid for Ms. Bermann’s testimony 

pursuant to Indiana Rules of Evidence 403. Specifically, there 

was no evidence presented to demonstrate that [Heather] had 

previously been battered by Mr. Gilliam; as a result, her 

testimony was not probative to any issue in the case. However,

Gilliam argues that Ms. Bermann’s testimony was highly 

prejudicial to Gilliam because the inference is that [Heather] was 

battered by Mr. Gilliam, which caused her to recant. There was

no evidence presented to support Gilliam battering [Heather].

Brief of Appellant at 12 (citation omitted). 

[15] Gilliam’s argument, however, is left unsupported by cogent reasoning or 

adequate citation to authority. “Indiana Appellate Rule 46(A)(8) provides that 
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the argument section of the appellant’s brief must ‘contain the contentions of 

the appellant on the issues presented, supported by cogent reasoning,’ along 

with citations to the authorities, statutes, and parts of the record relied upon, 

and a clear showing of how the issues and contentions in support thereof relate 

to the particular facts under review.” D.H. by A.M.J. v. Whipple, 103 N.E.3d 

1119, 1126 (Ind. Ct. App. 2018). Gilliam has therefore waived this issue for our 

review. Id. 

[16] Waiver notwithstanding, the hypothetical posed to Bermann was based on the 

fact that Gilliam had previously threatened Heather with a gun—not that 

Heather had previously been battered—and the State had presented evidence to 

support this fact. See Trial Tr. at 147. In any event, the record reveals trial 

counsel was prepared for the State’s line of questioning and had researched 

caselaw on the issue. Indeed, after the State posed the hypothetical, trial 

counsel requested a sidebar conference and argued the hypothetical had omitted 

key facts. The trial court sustained trial counsel’s objection and the State 

reframed the hypothetical accordingly. Therefore, to the extent we can discern 

Gilliam’s specific claim, he has failed to demonstrate deficient performance 

regarding this objection. 

[17] Next, Gilliam claims his trial counsel failed to object to Bermann’s testimony as 

inappropriate vouching testimony in violation of Indiana Evidence Rule 704(b). 

Rule 704(b) states: “Witnesses may not testify to opinions concerning intent, 

guilt, or innocence in a criminal case; the truth or falsity of allegations; whether 

a witness has testified truthfully; or legal conclusions.” However, expert 
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testimony explaining the behavior of domestic violence victims which is not 

based upon personal knowledge does not constitute impermissible vouching. 

See Otte v. State, 967 N.E.2d 540, 548 (Ind. Ct. App. 2012), trans. denied; Iqbal v. 

State, 805 N.E.2d 401, 409-10 (Ind. Ct. App. 2004).

[18] Here, it is uncontested that Bermann did not have personal knowledge of the 

case and she neither counseled nor met with Heather prior to her testimony. 

Trial Tr. at 222. Bermann expressed no opinion as to the truth of Heather’s 

statements and offered no testimony regarding those statements. Therefore, 

Bermann’s testimony was admissible pursuant to the well-established domestic 

violence exception to Rule 704(b). 

[19] Despite this, Gilliam argues Bermann’s testimony violated this court’s holding 

in Odom v. State, 711 N.E.2d 71 (Ind. Ct. App. 1999), trans. denied. Specifically, 

Gilliam argues:

Ms. Bermann’s testimony also violated this court’s holding in

[Odom] v. State, the State of Indiana used an expert witness to

explain why a victim might recant. While the expert in [Odom]

did not specifically mention battered woman syndrome (herein 

after “BWS”), the Indiana Court of Appeals ultimately

determined that “because the expert’s testimony is similar to BWS 

testimony, we will determine the admissibility of such testimony as the 

admissibility of BWS, a woman must have experienced at least two 

violent incidents and thereafter remained in the relationship.” [Citing 

Odom, 711 N.E.2d at 72 n.2].

Br. of Appellant at 12 (citation omitted; emphasis added). Gilliam presents the 

emphasized language as a direct quote from Odom—it is not. Instead, Gilliam 
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combines language from two separate locations in the opinion and reorganizes 

them to support his argument that for Bermann’s testimony to have been

admissible, the record must have established Heather suffered from at least two 

prior violent incidents. Whether an intentional misrepresentation or the result 

of honest confusion, Gilliam’s statement of the law is incorrect.2 

[20] In Odom, the court cited People v. Christel, 537 N.W.2d 194, 200 (Mich. 1995), 

for the proposition that “[t]o be considered a battered woman, with regard to 

BWS, a woman must have experienced at least two violent incidents and 

thereafter remained in the relationship[,]” and then concluded, “we will 

determine the admissibility of [the expert’s] testimony as the admissibility of 

BWS and other pattern, profile and syndrome evidence are determined.” 

Odom, 711 N.E.2d at 72 n.2. However, the court’s comparison of domestic 

violence testimony to BWS was not, as Gilliam contends, to prescribe the 

factual basis required to present domestic violence testimony—i.e., that a 

“woman must have experienced at least two violent incidents and thereafter 

remained in the relationship[,]”—but rather to explain domestic violence 

testimony is admissible under Rule 704(b) similar to “other pattern, profile and 

syndrome evidence[.]” Id. Indeed, it is for this reason Odom held the domestic 

violence testimony, almost identical to that presented here, was admissible 

under Rule 704(b):

 

2 We reemphasize that pro se litigants are held to the same legal standards as licensed attorneys. Basic, 58 

N.E.3d at 983. 
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. . . [the expert] testified only that it would not be unusual for a 

woman, who had experienced a violent incident such as that 

charged, to recant a prior allegation regarding that incident and 

the reasons she might have done so. Further, there is no 

evidence that [the victim] had experienced a prior incident of 

abuse while she was in the relationship with [the defendant].

Id. 

[21] Because Bermann’s testimony was admissible under Rule 704(b), Gilliam has 

failed to demonstrate his trial counsel provided deficient performance for not 

objecting thereto. 

B. Testimony Regarding Marijuana

[22] Gilliam next argues he received ineffective assistance in trial counsel’s failure to 

object to Heather’s testimony regarding Gilliam’s prior use—and potential 

dealing—of marijuana. On this issue, the post-conviction court found:

At trial, the State asked [Heather]: “When you were living with 

the defendant was there any form of illegal drug use that went 

on?” She responded that “occasionally we would smoke pot 

together.” The State also asked her “were you aware that 

defendant was dealing marijuana as well?” She responded “No.” 

Trial counsel did not object to this line of questioning. The State 

then confronted [Heather] with a prior statement she made to 

police where she was asked: “If he’s dealing marijuana then I 

need you to tell me he’s dealing the marijuana? Was he?” The 

State then asked [Heather] “And you said ‘yeah.’ Is that 

accurate?” [Heather] responded “I don’t remember.” 

Appellant’s App., Vol. II at 20. 
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[23] Gilliam’s argument on this point is entirely devoid of cogent reasoning or 

citation to authority. In fact, Gilliam does not so much as specify which “rule 

of evidence” his trial counsel allowed the State to violate without objection. Br. 

of Appellant at 13. As such, we conclude Gilliam has waived this issue for our 

review. Whipple, 103 N.E.3d at 1126. 

[24] Waiver notwithstanding, we agree with the post-conviction court’s conclusion:

. . . Gilliam was charged with possession of marijuana and 

dealing in marijuana that occurred on or about January 15, 2011. 

He was also charged with maintaining a common nuisance that 

occurred on or about January, 2011. [Heather] lived with 

Gilliam up to one week prior to the attack and the discovery by

police of marijuana, scales, rolling papers, etc. in Gilliam’s 

home. [Heather]’s testimony did not address prior bad acts. 

Rather, it was evidence relating to the current charges against 

Gilliam. As such, it was relevant to the case and not subject to 

objection. Therefore, the court concludes that trial counsel’s 

failure to object to this line of questioning was not ineffective.

Appellant’s App., Vol. II at 20-21. 

[25] Gilliam then argues that his trial counsel “failed to require the State to lay a 

proper foundation for the attempt to impeach the State’s own witness[.]” Br. of 

Appellant at 13. Again, we find this argument waived for failure to comply 

with Indiana Appellate Rule 46(A)(8). But, even if Gilliam was able to 

establish trial counsel’s performance was deficient in this regard, which he 

makes no effort to do, he would still be unable to demonstrate prejudice. As the 

post-conviction court concluded, “the State would have eventually been 
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allowed to admit the details of [Heather’s] statement as a prior inconsistent 

statement once [Heather] responded she did not recall it.” Appellant’s App., 

Vol. II at 21. Therefore, absent waiver, Gilliam would still fail to demonstrate

resulting prejudice. 

C. Remaining Claims 

[26] Gilliam raises several additional claims, arguing “[t]rial counsel was ineffective 

for failing to object to the mischaracterized facts, unsupported testimony and 

testifying regard [sic] documents not admitted.” Br. of Appellant at 13. We 

conclude all of these remaining claims—save one—are waived for failure to 

comply with Indiana Appellate Rule 46(A)(8). 

[27] The only claim supported by citation to authority is Gilliam’s allegation that his 

trial counsel was ineffective in failing to object to Lieutenant Hayworth’s 

testimony that Heather had made a statement to him regarding Gilliam’s prior 

marijuana dealing. Specifically, Gilliam argues that because Heather “had 

already been impeached by her previous statement, . . . Lieutenant Hayworth’s 

testimony was cumulative because the statement was no longer inconsistent as

[Heather] had already admitted to it.” Br. of Appellant at 14. Gilliam contends

his trial counsel should have objected to the testimony and requested a 

corresponding limiting instruction. 

[28] Contrary to Gilliam’s contention, however, Heather did not confirm her 

statement when confronted by her prior inconsistent statement; rather, Heather 
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stated “I don’t remember.” Trial Tr. at 148; see supra ¶ 22. The trial court 

concluded:

Indiana Rules of Evidence provide that any party, including the 

party that called the witness, may attack the witness’s credibility. 

[Evid. R. 607]. The Rules further provide that extrinsic evidence 

of a witness’s prior inconsistent statement is admissible when a 

witness is given the opportunity to deny the statement. [Evid. R.

613(b)]. 

Here, [Heather] did not admit to making the statement but only 

stated that she did not remember making the statement. Per the 

Rules of Evidence, the State was allowed to bring forth extrinsic 

evidence through Lt. Hayworth that [Heather] indeed admitted 

that Gilliam dealt in marijuana as a prior inconsistent statement. 

Therefore, any objection trial counsel could have made to this 

testimony would not have been sustained and Gilliam cannot 

show how he was prejudiced by his counsel’s failure to object.

Appellant’s App., Vol. II at 28. 

[29] On appeal, Gilliam simply reasserts his argument from his petition for postconviction relief. Therefore, Gilliam has failed to demonstrate the evidence 

leads “unerringly and unmistakably to a decision opposite that reached by the 

post-conviction court[,]” and we must affirm the post-conviction court’s 

judgment. McCary, 761 N.E.2d at 391.

III. Ineffective Assistance of Post-Conviction Counsel 

[30] Finally, Gilliam argues his post-conviction counsel rendered ineffective 

assistance by failing to “subpoena and/or secure Gilliam’s trial counsel’s 
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testimony during the PCR-Hearing.” Br. of Appellant at 10. Once more, we 

disagree.

[31] 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).

[32] Since Baum, our supreme court has explained that post-conviction counsel must 

be more than a “warm body,” however. This standard occasionally requires a 

reviewing court to look to the actual representation of post-conviction counsel 

to determine whether “[c]ounsel, in essence, abandoned [their] client” by failing 

to present any evidence in support of their client’s claim. Waters v. State, 574 

N.E.2d 911, 911-12 (Ind. 1991) (holding post-conviction counsel rendered 

ineffective assistance where the post-conviction court ordered the case 

submitted on affidavits and the petitioner submitted his own inadequate 

affidavits without assistance from post-conviction counsel, thus “no actual legal 

representation occurred”). In two subsequent cases, Bahm v. State, 789 N.E.2d 

50, 61-62 (Ind. Ct. App. 2003), trans. denied, and Taylor v. State, 882 N.E.2d 777, 

783-84 (Ind. Ct. App. 2008), we held that the petitioner received ineffective 
Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 20 of 21

assistance of post-conviction counsel where counsel failed to submit any 

evidence, particularly the trial transcript, in support of the petitioner’s claim of 

ineffective assistance of trial counsel. 

[33] Here, the record demonstrates that post-conviction counsel appeared and 

represented Gilliam, which resulted in a judgment of the post-conviction court 

now under review. Post-conviction counsel successfully admitted the record 

from Gilliam’s direct appeal and relied upon the trial transcript as evidence to 

support the claims he raised in Gilliam’s amended petition for post-conviction 

relief. Pursuant to Baum and its progeny, therefore, Gilliam received a 

procedurally fair post-conviction proceeding.

[34] To the extent Gilliam argues his post-conviction counsel was ineffective for 

failing to present the testimony of his trial counsel, we view this argument as a

claim of deficient performance by post-conviction counsel. However, as 

explained in Baum, deficient performance by post-conviction counsel is not a

cognizable claim under the Sixth Amendment. Matheney v. State, 834 N.E.2d 

658, 663 (Ind. 2005). Put simply, the fact that post-conviction counsel chose to 

rely solely on the trial transcript to support his arguments without obtaining 

trial counsel’s testimony is not “abandonment” and did not deprive Gilliam of a 

procedurally fair post-conviction proceeding. Id. 

Conclusion
Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 21 of 21

[35] The post-conviction court did not err in concluding Gilliam is not entitled to 

relief on his claim that he received ineffective assistance of trial counsel and 

Gilliam similarly failed to demonstrate that he received ineffective assistance of 

post-conviction counsel. We therefore affirm the post-conviction court.

[36] Affirmed. 

Baker, J., and May, J., concur.