Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 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

James A. Lynn

Pendleton, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Ian McLean

Deputy Attorney General

Indianapolis, Indiana

I N THE

COURT OF APPEALS OF INDIANA

James A. Lynn,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

September 29, 2015

Court of Appeals Case No.

70A01-1412-PC-534

Appeal from the Rush Circuit 

Court

The Honorable Beth A. Butsch, 

Special Judge

Trial Court Cause No.

70C01-1405-PC-154

Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015 Page 2 of 15

[1] James A. Lynn appeals the denial of his petition for post-conviction relief, 

contending that the post-conviction court erred in denying his petition. On 

appeal, he raises several issues that we consolidate and restate as:

I. Whether Lynn received ineffective assistance of trial counsel;

II. Whether Lynn’s freestanding allegations of error are 

procedurally defaulted and waived for appellate review; and

III. Whether the post-conviction court abused its discretion in 

allowing Lynn’s trial counsel to testify to statements Lynn made 

to him in order to explain counsel’s trial strategy.

[2] We affirm.

Facts and Procedural History

[3] The facts supporting Lynn’s convictions as set forth by this court in an 

unpublished decision on his direct appeal are as follows:

On December 21, 2012, Rebecca McDonald (“McDonald”) 

came home from work and saw a white truck that she did not 

recognize in her driveway. McDonald was talking to a friend on 

her cell phone and told her about the truck; the friend said that 

she would call 911. McDonald parked next to the truck and 

blocked its exit from her driveway. McDonald got out of her 

vehicle and saw Lynn bringing items out of her home and putting 

them into the white truck. Lynn saw McDonald in the driveway, 

and he reached across the inside of the truck and blew the horn. 

Another man came out of McDonald’s house and got into the 

white truck. The white truck fled and rammed McDonald’s car 

in the process. As the white truck fled, McDonald saw the 

license plate number of the truck and reported it to the police.
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Law enforcement investigated the license plate number and 

determined that the truck was registered to Paul Rice (“Rice”). 

Law enforcement also connected Lynn to the truck through 

photographs from a scrap yard in Delaware County. With this 

information, police were able to put together photo arrays to 

show McDonald. McDonald identified Lynn and Rice as the 

men who burglarized her house.

On January 11, 2013, the State charged Lynn with burglary as a 

Class B felony and theft, a Class D felony. Prior to trial, Lynn 

filed a motion to suppress the photo array prepared by police and 

shown to McDonald in an effort to identify him. Lynn claimed 

that he was denied due process because the photo array was 

unduly suggestive. The trial court denied Lynn’s motion. . . .

On May 7, 2013, the trial court conducted a jury trial. Lynn 

renewed his objection to the photo array when it was offered into 

evidence by the State. However, he did not object to 

McDonald’s in-court identification. The jury found Lynn guilty 

of both counts and the trial court set the matter for sentencing.

The trial court held a sentencing hearing on June 6, 2013 and 

sentenced Lynn to twenty (20) years executed on the burglary 

conviction and three (3) years executed on the theft conviction. 

The trial court ordered all of the executed time served in the 

Department of Correction with the counts running concurrently.

Lynn v. State, No. 70A04-1307-CR-317, *1 (Ind. Ct. App. Feb. 28, 2014).

[4] After his conviction, Lynn filed a direct appeal of his convictions, and a panel 

of this court affirmed his convictions and sentence. Id. On May 7, 2014, Lynn 

filed a petition for post-conviction relief, which was later amended on July 15, 

2014. An evidentiary hearing was held, and on November 25, 2014, the post-
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conviction court issued findings of facts and conclusions thereon, denying 

Lynn’s petition for relief. Lynn now appeals.

Discussion and Decision

[5] 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. 

Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164 

(2002); Wieland v. State, 848 N.E.2d 679, 681 (Ind. Ct. App. 2006), trans. denied, 

cert. denied, 549 U.S. 1038 (2006). The proceedings do not substitute for a direct 

appeal and provide only a narrow remedy for subsequent collateral challenges 

to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The petitioner for postconviction relief bears the burden of proving the grounds by a preponderance of 

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

[6] When a petitioner appeals a denial of post-conviction relief, he appeals a 

negative judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007), 

trans. denied. The petitioner must establish that the evidence as a whole 

unmistakably and unerringly leads to a conclusion contrary to that of the postconviction court. Id. We will disturb a post-conviction court’s decision as 

being contrary to law only where the evidence is without conflict and leads to 

but one conclusion, and the post-conviction court has reached the opposite 

conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans. 

denied. The post-conviction court is the sole judge of the weight of the evidence
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and the credibility of witnesses. Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. 

App. 2008), trans. denied. We accept the post-conviction court’s findings of fact 

unless they are clearly erroneous, and no deference is given to its conclusions of 

law. Fisher, 878 N.E.2d at 463.

I. Ineffective Assistance of Counsel 

[7] When evaluating a claim of ineffective assistance of counsel, we apply the twopart test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Perry v. 

State, 904 N.E.2d 302, 308 (Ind. Ct. App. 2009) (citing Pinkins v. State, 799 

N.E.2d 1079, 1093 (Ind. Ct. App. 2003), trans. denied), trans. denied. First, the 

defendant must show that counsel’s performance was deficient. Id. This 

requires a showing that counsel’s representation fell below an objective 

standard of reasonableness and that the errors were so serious that they resulted 

in a denial of the right to counsel guaranteed to the defendant by the Sixth and 

Fourteenth Amendments. Id. Second, the defendant must show that the 

deficient performance resulted in prejudice. Id. To establish prejudice, a 

defendant must show that there is a reasonable probability that but for counsel’s 

unprofessional errors, the result of the proceeding would have been different. 

Id. A reasonable probability is a probability sufficient to undermine confidence 

in the outcome. Id. 

[8] Further, counsel’s performance is presumed effective, and a defendant must 

offer strong and convincing evidence to overcome this presumption. Williams v. 

State, 771 N.E.2d 70, 73 (Ind. 2002). We will not lightly speculate as to what 
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may or may not have been an advantageous trial strategy, as counsel should be 

given deference in choosing a trial strategy that, at the time and under the 

circumstances, seems best. Perry, 904 N.E.2d at 308 (citing Whitener v. State,

696 N.E.2d 40, 42 (Ind. 1998)). Isolated omissions or errors, poor strategy, or 

bad tactics do not necessarily render representation ineffective. Shanabarger v. 

State, 846 N.E.2d 702, 708 (Ind. Ct. App. 2006), trans. denied. The two prongs 

of the Strickland test are separate and independent inquiries. Manzano v. State, 

12 N.E.3d 321, 325 (Ind. Ct. App. 2014), trans. denied, cert. denied, 135 S. Ct. 

2376 (2015). “Thus, ‘[i]f it is easier to dispose of an ineffectiveness claim on the 

ground of lack of sufficient prejudice . . . that course should be followed.’” Id. 

(quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001), cert. denied, 537 

U.S. 243 (1998)). 

[9] Lynn argues that he received ineffective assistance of trial counsel both from 

counsel who represented him during his trial and from counsel who represented 

him during his sentencing. Prior and during trial, Lynn was represented by 

Bryan Barrett (“Barrett”). Lynn initially contends that Barrett was ineffective 

for failing to investigate an alibi defense and failing to present the testimony of 

several witnesses that Lynn claims would have supported his alibi defense and 

proven that he was not present at the victim’s home on the day of the burglary.

“Counsel is afforded considerable discretion in choosing strategy and tactics, 

and these decisions are entitled to deferential review.” Benefield v. State, 945 

N.E.2d 791, 797 (Ind. Ct. App. 2011). “[I]n the context of an ineffective 

assistance claim, ‘a decision regarding what witnesses to call is a matter of trial 
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strategy which an appellate court will not second-guess.’” McCullough v. State, 

973 N.E.2d 62, 83 (Ind. Ct. App. 2012) (quoting Curtis v. State, 905 N.E.2d 410, 

415 (Ind. Ct. App. 2009), trans. denied), trans. denied. 

[10] At the post-conviction hearing, evidence was elicited that Lynn confessed to 

Barrett that he was involved in the burglary. Lynn’s confession would have 

created ethical difficulties for Barrett that would have prohibited him from 

presenting an alibi defense at trial. Additionally, the confession would have 

made clear the strength of the State’s evidence identifying Lynn as one of the 

burglars and highlighted the unlikelihood that Lynn’s alibi evidence would have 

been more reliable than the victim’s identification. Barrett faced the State’s 

evidence consisting of the victim’s positive identification of Lynn, whom she 

had been able to observe on a clear afternoon while wearing her glasses and 

looking directly at him as he placed her property inside of the Ford truck. 

Faced with this evidence and having knowledge of Lynn’s confession, we 

conclude that Barrett’s decision not to present an alibi defense at trial was one 

of trial strategy that we do not find was unreasonable. Additionally, Lynn’s 

contentions concerning Barrett’s failure to investigate are without merit. His 

assertions regarding not investigating statements by certain witnesses was 

contradicted by evidence that Barrett spoke with the witnesses and reviewed 

pretrial statements made by the witnesses. Lynn also lists several additional 

suspects that Barrett failed to investigate, but does not provide evidence about 

who these witnesses are or what further investigation would have revealed. 
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Lynn, therefore, failed to show deficient performance of Barrett or any 

prejudice resulting from this alleged failure to investigate.

[11] Lynn also claims ineffective assistance of trial counsel due to Barrett’s failure to 

timely file a motion to suppress the photo array used in the identification of 

Lynn by the victim and failure to timely object at trial to the same evidence. 

However, the evidence at the post-conviction hearing showed that Barrett did 

file a motion to suppress the photo array evidence, which was denied by the 

trial court. PCR Tr. at 50. Barrett also objected to the evidence during trial, and 

such objection was overruled. Id. Lynn has failed to prove that Barrett was 

ineffective for failing to challenge the identification evidence. Further, to the 

extent that Lynn argues that Barrett was ineffective for failing to give Lynn the 

opportunity to file an interlocutory appeal regarding the denial of his motion to 

suppress, we do not find ineffective assistance of counsel as any claim of 

prejudice was foreclosed by the decision on direct appeal. Lynn, No. 70A04-

1307-CR-317 at *2; see Kubsch v. State, 934 N.E.2d 1138, 1143 n.2 (Ind. 2010) 

(“A petitioner for post-conviction relief cannot escape the effect of claim 

preclusion merely by using different language to phrase an issue and define an 

alleged error . . .[;] an issue previously considered and determined in a 

defendant’s direct appeal is barred for post-conviction review on grounds of . . . 

res judicata.”).

[12] Lynn next argues that his trial counsel was ineffective for failing to impeach the 

victim’s testimony at trial. Lynn focuses on alleged discrepancies concerning 

the order in which the victim first observed the burglars and not on her 
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identification of the burglars, which was the focus of Barrett’s defense at trial. 

Our Supreme Court has held that the method of impeaching a witness is a 

tactical decision and a matter of trial strategy that does not amount to 

ineffective assistance. Kubsch, 934 N.E.2d at 1151. We, therefore, conclude 

that Lynn has failed to show Barrett was ineffective in his impeachment of the 

victim.

[13] Lynn additionally asserts that Barrett was ineffective for not discussing 

potential plea agreements with him. Lynn points to one draft plea agreement 

and one partial second plea agreement that are included in his appendix. 

Appellant’s App. at 23-25. However, at the post-conviction hearing, Lynn asked 

Barrett if, after the suppression hearing, Lynn ever requested a continuance in 

order to consider a plea agreement, to which Barrett stated he could not recall. 

PCR Tr. at 51. The suppression hearing occurred on May 7, 2013, and one of 

the draft plea agreements expired on May 2, 2013, while the second draft 

agreement was missing the second page that would have contained the 

expiration date. Lynn has failed to prove ineffective assistance for failure to 

discuss potential plea agreements.

[14] Lynn also contends that Barrett was ineffective for failing to object to a final 

jury instruction on aiding and abetting because Lynn claims the instruction 

should have required “proof of specific intent of crime specified” and relies on 

Hopkins v. State, 759 N.E.2d 633 (Ind. 2001). However, that case dealt with 

aiding and abetting in a prosecution for attempted murder and is not applicable 

to the present case. The jury instruction given in this case was a correct 
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statement of the law and properly instructed the jury that in order to find Lynn 

guilty as an accomplice, the State was required to prove that Lynn knowingly or 

intentionally aided another person in breaking and entering the victim’s home 

with the intent to commit theft. Trial Tr. at 311-12. We find no ineffective 

assistance of counsel.

[15] Lastly, Lynn argues that he received ineffective assistance of his counsel at 

sentencing. During sentencing, Barret withdrew, and Andrew Eads (“Eads”) 

represented Lynn. Lynn initially contends that Barrett and Eads were 

ineffective because they allowed his rights to be violated under Blakely v. 

Washington, 542 U.S. 296 (2004) as the jury did not decide the aggravating 

factors during sentencing. However, the Indiana Legislature enacted a new 

sentencing regime in response to Blakely, which eliminated fixed terms and 

created a sentencing scheme in “which there is no longer a maximum sentence 

a judge ‘may impose without any additional findings.’” Anglemyer v. State, 868 

N.E.2d 482, 489 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007) 

(quoting Blakely, 542 U.S. at 304). Therefore, any claims concerning violations 

under Blakely have no merit.

[16] Lynn next asserts that Eads was ineffective for failing to present character 

witnesses during sentencing and witnesses who would have testified to 

mitigating factors that should have been presented to the trial court. During the 

post-conviction hearing, Lynn presented the testimony of several witnesses, 

who all testified that they had information that would have been relevant at 

sentencing, but did not testify as to what that information would have been. 
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He, therefore, failed to establish that the failure to have these witnesses testify at 

sentencing prejudiced him. Lynn also contends that Eads was ineffective for 

failing to allow Lynn to testify at sentencing. However, Lynn did not testify at 

the post-conviction hearing and did not question Eads in detail about 

conversations they had about Lynn’s demand to testify at sentencing. We 

conclude that Lynn has not shown how he was prejudiced by this strategic 

decision by Eads, especially in light of the evidence presented at sentencing of 

Lynn’s extensive criminal history and the circumstances of the crime in which 

Lynn and his co-defendant struck the victim’s vehicle that she was standing 

near at the time and shoved it out of the way to escape from the crime scene.

[17] Lynn also claims that he received ineffective assistance of counsel at sentencing 

due to Eads’s failure to obtain Lynn’s educational and mental health records or 

to consult with a mental health professional. However, Lynn did not admit any 

educational or mental health records at the post-conviction hearing or any

testimony regarding what information a mental health professional would have 

provided to the trial court. Additionally, at sentencing, the trial court was able 

to consider the pre-sentencing report and discussed Lynn’s physical illnesses 

and mental health conditions when it pronounced the sentence, considering

such as a mitigating factor. Lynn has not established how he was prejudiced by 

any failure to present further mental health evidence.

[18] Lynn further contends that Eads was ineffective for failing to object to 

admission of the victim’s list of values for the jewelry stolen from her during the 

burglary that was used to establish the restitution order. During the sentencing 
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hearing, Eads cross-examined the victim regarding how she assigned values to 

the jewelry and argued the issue of valuation and that the victim’s listed values 

seemed high. A victim’s in-court testimony may be sufficient to support a 

restitution order. See Blixt v. State, 872 N.E.2d 149, 153-54 (Ind. Ct. App. 2007) 

(holding evidence sufficient to support restitution order based solely on 

testimony from victim’s mother that she paid a certain amount to cover 

daughter’s psychiatric services). We find that Eads was not ineffective as to his 

handling of the victim’s restitution request.

[19] Lastly, Lynn raises a claim that all of the contentions he has asserted constitute 

a “compilation of errors” that taken cumulatively amount to ineffective 

assistance of counsel. Appellant’s Br. at 21. “Alleged ‘[t]rial irregularities which 

standing alone do not amount to error do not gain the stature of reversible error 

when taken together.’” Kubsch, 934 N.E.2d at 1154 (quoting Reaves v. State, 586 

N.E.2d 847, 858 (Ind. 1992)). We, therefore, conclude that Lynn is not entitled 

to relief on this claim.

II. Free-standing Claims of Error

[20] Post-conviction proceedings are civil proceedings that provide defendants the 

opportunity to raise issues not known or available at the time of the original 

trial or direct appeal. Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007) 

(citing Conner v. State, 711 N.E.2d 1238, 1244 (Ind. 1999), cert. denied, 531 U.S. 

829 (2000)), cert. denied, 552 U.S. 1314 (2008). Thus, if an issue was known and 

available but not raised on direct appeal, the issue is procedurally foreclosed. 
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Id. (citing Timberlake, 753 N.E.2d at 597). “In post-conviction proceedings, 

complaints that something went awry at trial are generally cognizable only 

when they show deprivation of the right to effective counsel or issues 

demonstrably unavailable at the time of trial or direct appeal.” Id. 

[21] In the present case, Lynn raises several free-standing claims of error in his 

appellate brief. He first contends that the trial court erred when it did not 

conduct an inquiry at sentencing as to his ability to pay before entering a 

restitution order and that the restitution order and sentence were illegal. Lynn 

also argues that he was denied due process based on a violation of Criminal 

Rule 4(B). He further claims that he suffered a due process violation because of 

several errors in his sentencing including: (1) the aggravators were improperly 

found; (2) improper aggravators were used by the trial court to enhance his 

sentence; and (3) he was not allowed to present evidence at sentencing. 

[22] These freestanding issues raised by Lynn were all known and available at the 

time of his direct appeal. Therefore, the issues had to be raised on direct 

appeal, and because they were not, they are procedurally foreclosed and may 

not be raised now for the first time on post-conviction relief. We conclude that 

Lynn’s freestanding claims of error are foreclosed from our review on appeal. 

Further, to the extent that he attempts to argue that his appellate attorney was 

ineffective for failing to raise these issues in his direct appeal, we find such 

argument waived for failure to provide a cogent argument in support of such 

contention. A party waives an issue where the party fails to develop a cogent 

argument or provide adequate citation to authority and portions of the record. 
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Wingate v. State, 900 N.E.2d 468, 475 (Ind. Ct. App. 2009); see also Ind. 

Appellate Rule 46(A)(8) (requiring that contentions in appellant’s brief be 

supported by cogent reasoning and citations to authorities, statutes, and the 

appendix or parts of the record on appeal). Here, Lynn merely provides a 

single sentence that his appellate attorney’s failure to address these issues 

deprived him of due process. Appellant’s Br. at 33. Therefore, Lynn has waived 

any claim regarding ineffective assistance of appellate counsel by failing to 

provide a cogent argument in support of such claim.

III. Counsel’s Testimony

[23] Lynn contends that the post-conviction court abused its discretion when, in 

order to explain the trial strategy he employed, the post-conviction court

allowed Barrett to testify to statements that Lynn made to Barrett prior to trial. 

The admission or exclusion of evidence in a post-conviction proceeding is 

within the post-conviction court’s sound discretion. Hyppolite v. State, 774 

N.E.2d 584, 600 (Ind. Ct. App. 2002), trans. denied. We defer to the postconviction court and will not disturb its ruling on review unless there was an 

abuse of discretion. Id. A defendant waives the attorney-client privilege when 

he files a petition for post-conviction relief on the grounds of ineffective 

assistance of counsel. Carter v. State, 738 N.E.2d 665, 674 n.6 (Ind. 2000). 

“‘When the professional integrity of an attorney is attacked by a client, that 

attorney has a right to defend his conduct as counsel.’” Id. (quoting Logston v. 

State, 266 Ind. 395, 399, 363 N.E.2d 975, 977 (1977)). We, therefore, conclude 

that the post-conviction court did not abuse its discretion in allowing Barrett to 
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testify regarding statements made by Lynn in order to explain counsel’s trial 

strategy.

[24] Affirmed.

Najam, J., and Barnes, J., concur.