Court of Appeals of Indiana | Memorandum Decision 49A04-1701-PC-30 | January 12, 2018 Page 1 of 13

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

Robert Taylor

New Castle, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

James T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Robert Taylor,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

January 12, 2018

Court of Appeals Case No.

49A04-1701-PC-30

Appeal from the Marion Superior 

Court

The Honorable Amy Barbar, Magistrate

Trial Court Cause No.

49G02-1504-PC-13099

Robb, Judge.
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Case Summary and Issues

[1] Following a bench trial, Robert Taylor was found guilty of rape, a Class B 

felony. The trial court entered judgment of conviction and sentenced Taylor to 

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

affirmed Taylor’s conviction. Taylor v. State, No. 49G06-1011-FB-86868 (Ind. 

Ct. App. Sept. 18, 2012). Thereafter, Taylor, pro se, filed a petition for postconviction relief which was denied by the post-conviction court. Taylor now 

appeals the denial of post-conviction relief, raising four issues which we 

consolidate and restate as (1) whether the post-conviction court erred in 

denying Taylor relief on his claim that the commissioner which presided over

his trial committed judicial misconduct; (2) whether the post-conviction court 

erred in denying Taylor relief on his claims of prosecutorial misconduct; and (3) 

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

Concluding the post-conviction court did not err and that post-conviction 

counsel was not ineffective, we affirm. 

Facts and Procedural History 

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

appeal, 

On June 27, 2009, S.S. was homeless and living in a shelter on 

10th Street near downtown Indianapolis. Late that Saturday 

morning, she was walking down 10th Street toward Pennsylvania 

Avenue to a location where she could have a free lunch in a park. 

While walking past a construction zone, a man pulled his car up 
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by the curb and asked if she needed a ride. S.S. declined.

Shortly thereafter, the man grabbed her from behind and dragged 

her up a hill where he threw her on the ground, pulled off her 

shorts and underwear, and raped her. After ejaculating inside 

her, the man then went back down the hill and drove away.

Distraught and unable to call 911, S.S. dressed and then walked 

to the park for lunch. Several hours later, S.S. encountered a 

good friend and told her about the rape. The friend helped her 

call police. S.S. described her attacker as a black male in his 

twenties or thirties, about five feet and ten inches tall, with short 

hair and a thin build. Detective David Everman took S.S. to 

Methodist Hospital to be examined by a sexual assault nurse 

examiner (SANE). SANE Robin Brannan collected swabs from 

S.S., as well as the underwear S.S. wore after the attack. A panty 

liner was attached to the underwear. Brannan apparently did not 

notice the panty liner, as it was not separated from the underwear 

or documented. The underwear with the panty liner were bagged 

together, sealed, and included in the rape kit. Thereafter, the 

rape kit, which was stored in a locked refrigerator, was collected 

by the Marion County Crime Lab and securely stored at the lab.

Shannin Guy, a forensic scientist with the Marion County 

Forensic Services Agency, conducted serology and DNA analysis 

on the material collected in the rape kit. Guy identified the 

presence of seminal material on the vaginal cervical swab, the 

speculum swab, the vaginal wash, and the panty liner. She then 

performed DNA analysis on a portion of the seminal material 

collected from each of these four items. Analysis revealed that 

the male DNA profiles from each item matched, identifying the 

same unknown male individual. Guy submitted the profile from 

the seminal material found on the panty liner to CODIS, which 

resulted in a match to Taylor in August 2010. After obtaining a 

buccal swab from Taylor, Guy performed further DNA analysis, 

directly matching his DNA to the seminal material found on the 
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vaginal cervical swab, the speculum swab, the vaginal wash, and 

the panty liner.

Detective Everman met with S.S. on October 15, 2010 and 

presented her with a photo array. S.S. was unable to identify her 

attacker. The detective then directed her to Taylor’s picture and 

indicated that there had been a DNA match.

On November 18, 2010, the State charged Taylor with class B 

felony rape and class D felony criminal confinement. Taylor 

unsuccessfully sought to suppress the DNA results. Following a 

bench trial on December 7, 2011, Taylor was found guilty as 

charged. A judgment of conviction, however, was entered only 

on the rape charge, and the trial court imposed an executed 

sentence of seventeen years. 

Id. at *1-2 (footnote omitted). 

[3] On January 2, 2013, Taylor filed a pro se petition for post-conviction relief and

the court granted Taylor’s request to appoint Taylor a public defender. The 

public defender filed a withdrawal of appearance on October 29, 2014, pursuant 

to Indiana Post-Conviction Rule 1(9)(c), which allows counsel to withdraw 

from representation if “counsel determines the proceeding is not meritorious or 

in the interests of justice . . . .” Taylor subsequently withdrew his petition 

without prejudice before filing a second petition for post-conviction relief on 

June 9, 2015, to which the public defender filed a notice of non-representation. 

Taylor proceeded pro se. 
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[4] After conducting a hearing on Taylor’s second petition for post-conviction 

relief, the post-conviction court issued findings of fact and conclusions of law 

denying Taylor’s petition on November 1, 2016. Taylor now appeals. 

Discussion and Decision 

I. Standard of Review 

[5] Post-conviction proceedings are civil in nature and the petitioner must therefore 

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

Rule 1(5). Post-conviction 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. Turner v. State, 974 N.E.2d 575, 

581 (Ind. Ct. App. 2012), trans. denied. “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.” Id. 

[6] On appeal, a petitioner who has been denied post-conviction relief faces a 

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

We may not reweigh the evidence or reassess the credibility of the witnesses 

and we consider only the evidence and reasonable inferences supporting the 

judgment. Hall v. State, 849 N.E.2d 466, 468 (Ind. 2006). The petitioner must 

show that the evidence is without conflict and leads unerringly and 

unmistakably to a conclusion opposite that reached by the post-conviction 

court. Strowmatt v. State, 779 N.E.2d 971, 975 (Ind. Ct. App. 2002). The post-
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conviction court made findings of fact and conclusions of law as required by 

Indiana Post-Conviction Rule 1(6), and we therefore cannot affirm the 

judgment on any legal basis, but rather, we must determine if the court’s 

findings are sufficient to support its judgment. Graham v. State, 941 N.E.2d 

1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947 N.E.2d 962. We review the 

post-conviction court’s factual findings under a clearly erroneous standard. Id. 

[7] We also note 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. We 

must not become an “advocate for a party, or address arguments that are 

inappropriate or too poorly developed or expressed to be understood.” Id. at 

984.

II. Judicial Misconduct 

[8] Taylor first claims the post-conviction court erred in denying his claim that 

Master Commissioner Marchal lacked jurisdiction to preside over his trial and 

thus committed judicial misconduct. 
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[9] Taylor’s case was originally assigned to Judge Mark D. Stoner1 who later

assigned the case to Master Commissioner Marchal. On December 6, 2011, 

just one day before the case was set for a bench trial before Master 

Commissioner Marchal, Taylor filed a motion for Judge Stoner to hear the case 

pursuant to Indiana Code section 33-33-49-32(c). The statute provides,

(c) A party to a superior court proceeding that has been assigned 

to a magistrate appointed under this section may request that an 

elected judge of the superior court preside over the proceeding 

instead of the magistrate to whom the proceeding has been 

assigned. A request under this subsection must be in writing and 

must be filed with the court:

* * *

(2) in a criminal case, not later than ten (10) days after the 

omnibus date. 

Upon a timely request made under this subsection by either 

party, the magistrate to whom the proceeding has been assigned 

shall transfer the proceeding back to the superior court judge. 

Id.2

[10] Judge Stoner signed an order granting Taylor’s motion. Exhibits at 6. 

However, at trial the next day, the parties discussed a later e-mail from Judge 

 

1 This is after Taylor requested and was granted a change of judge.

2 Although Indiana Code section 33-33-49-32 only discusses magistrates, we held in Capehart v. Capehart, 771 

N.E.2d 657, 662 (Ind. Ct. App. 2002), trans. denied., that the statute equally applies to master commissioners. 
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Stoner denying Taylor’s motion. Without objection, Master Commissioner 

Marchal presided over Taylor’s trial and heard the parties’ presentation of 

evidence. Following the bench trial on December 7, 2011, the court’s judgment 

and sentence were pronounced by order of Judge Stoner on January 5, 2012. 

[11] In response to Taylor’s petition, the State contends (1) Taylor’s motion was 

untimely; (2) Taylor failed to preserve the issue by objecting at trial; (3) Taylor 

waived the issue by failing to present it on direct appeal; and (4) Taylor’s

argument on post-conviction relief fails to allege resulting prejudice. On

review, we conclude that Taylor waived any such claim by failing to present it 

on direct appeal. 

[12] It is well established that post-conviction relief is not a substitute for a direct 

appeal and freestanding claims that the original trial court committed error are 

available only on direct appeal. Martin v. State, 760 N.E.2d 597, 599 (Ind. 

2002). Here, it is clear that Taylor’s claim regarding Master Commissioner 

Marchal was known and available on direct appeal, but not raised. Taylor’s 

claim is therefore waived. Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002) 

(“It has long been held that claims available on direct appeal but not presented 

are not available for post-conviction review.”).3 

 

3 Taylor also contends that the “purported judgment of conviction is invalid by virtue of having been enter 

[sic] purportedly by a court officer who has not been duly appointed.” Appellant’s Brief at 11. This issue is

also waived for having been omitted from Taylor’s direct appeal. See Bunch, 778 N.E.2d at 1289. 
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III. Prosecutorial Misconduct

[13] Taylor next argues the post-conviction court erred in denying his claim of 

alleged prosecutorial misconduct in presenting improper DNA and 

identification testimony. 

[14] In reviewing a claim of prosecutorial misconduct, we determine (1) whether the 

prosecutor engaged in misconduct, and if so, (2) whether that misconduct, 

under all the circumstances, placed the defendant in a position of grave peril to 

which he or she should not have been subjected. Coleman v. State, 750 N.E.2d 

370, 374 (Ind. 2001). The “gravity of peril” is measured by the “‘probable

persuasive effect of the misconduct on the jury’s decision, not on the degree of 

impropriety of the conduct.” Id. Although we determine that neither of 

Taylor’s claims of prosecutorial misconduct require us to reach the merits of his 

arguments, even if they did, Taylor failed to satisfy his burden on postconviction relief. 

A. DNA Evidence 

[15] Taylor first alleges that he was “denied his due process rights where the 

prosecutor used tainted DNA evidence which consist [sic] of a sanitary napkin 

that was never establish [sic] as being worn by the victim right after this claim of 

rape.” Appellant’s Br. at 2. In response, the State argues Taylor waived a 

claim of prosecutorial misconduct by failing to present it on direct appeal and 

that the substance of Taylor’s claim is barred by res judicata. Concluding 

Taylor’s claim was available only on direct appeal, we agree with the State. 
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[16] Taylor’s claim of fundamental error neither presents newly discovered evidence 

nor argues ineffective assistance of counsel. As discussed above, postconviction proceedings generally provide an opportunity to raise issues that 

were unknown or unavailable at the time of trial or the direct appeal. Turner, 

974 N.E.2d at 581. “A petitioner for post-conviction relief cannot avoid 

application of the waiver doctrine by asserting fundamental error. Rather, 

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.” Green v. State, 

994 N.E.2d 1276, 1280 (Ind. Ct. App. 2013), trans. denied. As with Taylor’s 

claim regarding judicial misconduct, it is clear that Taylor’s claim of 

prosecutorial misconduct was known and available but not raised on direct 

appeal. Therefore, this issue too is waived. Bunch, 778 N.E.2d at 1289.

[17] Waiver notwithstanding, Taylor failed to satisfy his burden on post-conviction 

relief. On direct appeal, Taylor challenged the admission of DNA evidence 

obtained from the victim’s panty liner and we concluded that

[t]o the extent one of the four DNA matches was improperly 

admitted, which it was not, the other three conclusively 

established his identity. Accordingly, any error in the admission 

of the evidence obtained from the panty liner would have been 

harmless. 

Taylor, No. 49G06-1011-FB-86868 at *3. The thrust of Taylor’s first claim 

regarding prosecutorial misconduct is the admission of the same DNA evidence

discussed above and, as we have previously explained, any error in its 
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admission was harmless considering the remaining evidence of Taylor’s guilt. 

Therefore, even assuming Taylor satisfied his burden regarding the alleged 

prosecutorial misconduct, he still would not be entitled to relief. See Coleman v. 

State, 750 N.E.2d 370, 375 (Ind. 2001) (holding any error regarding alleged 

prosecutorial misconduct was harmless where there was independent evidence 

of defendant’s guilt). 

B.Identification Testimony 

[18] Next, Taylor alleges that the prosecutor engaged in misconduct when the victim 

was allowed to identify him at trial “after knowing that the [victim] suffered 

from a serious case of doubt about Taylor being the perpetrator of the crime[.]” 

Appellant’s Br. at 17. 

[19] Like Taylor’s argument regarding DNA evidence, this issue is one of trial court 

error which is available only on direct appeal. Martin, 760 N.E.2d at 599. 

Accordingly, it too is waived. Id. Taylor also incorporates into his argument 

several other undeveloped claims regarding the victim’s identification testimony 

which, even if fully developed so as to conform with Indiana Appellate Rule 

46(A)(8)(a), would be similarly waived as issues for direct appeal, not postconviction relief.4

 

 

4 Although Taylor spends much of this section alleging the victim committed perjury, he also alleges the 

photo array was unduly suggestive and that he was entitled to counsel at the time the photo array was shown 

to the victim. See Appellant’s Br. 17-18.
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[20] Waiver notwithstanding, we addressed the substance of Taylor’s argument on 

direct appeal and concluded that any error in the in-court identification was 

harmless because Taylor was “conclusively identified” by the DNA evidence. 

Taylor, No. 49G06-1011-FB-86868 at *4. This remains true and even if Taylor’s 

claim regarding prosecutorial misconduct was not waived, he has still failed to 

satisfy his burden on post-conviction relief. See Coleman, 750 N.E.2d at 375.

IV. Right to Counsel 

[21] Finally, Taylor claims he was deprived of his right to effective assistance of

post-conviction counsel under both the federal and state constitutions.

5

 

[22] The record reflects that Taylor was appointed a public defender after he filed his 

initial petition for post-conviction relief. The public defender subsequently filed 

a withdrawal of appearance pursuant to Indiana Post-Conviction Rule 1(9)(c), 

which allows withdrawal from representation if “counsel determines the 

proceeding is not meritorious or in the interests of justice . . . .” The public 

defender then filed a notice of non-representation in response to Taylor’s 

second petition for post-conviction relief and Taylor proceeded pro-se. 

[23] Although often unclear, it appears Taylor contends his post-conviction counsel 

“abandoned [him] in the first round.” Appellant’s Br. at 19. Taylor, however,

 

5 To the extent that Taylor claims ineffective assistance of trial and appellate counsel, we do not interpret 

these as freestanding claims because, in context, they merely form the basis for Taylor’s claim of ineffective 

assistance of post-conviction counsel. 
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fails to address the post-conviction court’s finding that “the State Public 

Defender did exactly that which the rule provided he must do.” Appellant’s 

Appendix, Volume 2 at 139. Instead, Taylor asks that we “review his claim 

under ineffective assistance of trial [sic] counsel claim under the prong test set 

forth in Strickland v. Washington[.]” Appellant’s Br. at 19. 

[24] We must, of course, decline Taylor’s invitation and we note that there is no 

federal or state constitutional right to counsel in post-conviction proceedings

from which Strickland is derived. See Hill v. State, 960 N.E.2d 141, 145 (Ind. 

2012). “[T]he right to counsel in a post-conviction proceeding is guaranteed 

neither by the Sixth Amendment of the United States Constitution nor article 1, 

§ 13 of the Constitution of Indiana.” Daniels v. State, 741 N.E.2d 1177, 1190 

(Ind. 2001). Concluding Taylor’s brief fails to advance a cogent argument 

regarding ineffective assistance of post-conviction counsel, we hold Taylor has 

waived such review. Ind. Appellate Rule 46(A)(8)(a).

Conclusion

[25] For the reasons discussed above, we conclude the post-conviction court did not 

err in denying Taylor’s petition for post-conviction relief and that Taylor did 

not receive ineffective assistance of post-conviction counsel. Accordingly, we 

affirm. 

[26] Affirmed. 

Crone, J., and Bradford, J., concur.