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.

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS GREGORY F. ZOELLER

Public Defender of Indiana Attorney General of Indiana

JONATHAN O. CHENOWETH MICHAEL GENE WORDEN

Deputy Public Defender Deputy Attorney General

Indianapolis, Indiana Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

ANTWANE WALKER, )

)

Appellant-Petitioner, )

)

vs. ) No. 49A02-1112-PC-1173

)

STATE OF INDIANA, )

)

Appellee-Respondent. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Robert R. Altice, Jr., Judge

Cause No. 49G02-0812-PC-288159

July 19, 2012

MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
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STATEMENT OF THE CASE

Appellant-Petitioner, Antwane Walker (Walker), appeals the post-conviction 

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

We affirm.

ISSUES

Walker raises two issues on appeal, which we restate as: 

(1) Whether Walker’s convictions for five Counts of attempted robbery are 

supported by sufficient evidence; and

(2) Whether appellate counsel provided ineffective assistance by not 

challenging the sufficiency of the evidence supporting Walker’s convictions. 

FACTS AND PROCEDURAL HISTORY

In our memorandum opinion of Walker v. State, No. 49A02-0904-CR-344 (Ind. 

Ct. App. Dec. 8, 2009), we stated the facts as follows:

During the evening of December 18, 2008, several people were 

present at Big Engine Entertainment, a recording studio in Indianapolis, 

while a recording was being made. Five armed men entered the building 

and robbed some of the occupants at gunpoint. Multiple shots were fired, 

and Collin Moore suffered a gunshot wound to his abdomen. Several 

witnesses identified Walker as one of the robbers. He had been observed 

running backwards, firing a semi-automatic handgun into the building.

On December 19, 2009, the State filed an Information charging Walker with 

Count I, attempted robbery, a class A felony, Ind. Code § 35-42-5-1; Count II, robbery, a 

Class B felony, I.C. § 35-42-5-1; Counts III-X, attempted robbery, Class B felonies, I.C. 

§§ 35-42-5-1, -35-41-5-1; Count XIV, criminal recklessness, a Class C felony, I.C. § 35-
3

42-2-2; and Count XVII, dangerous possession of a firearm, a Class A misdemeanor, I.C. 

§ 35-47-10-5. On March 9, 2009, all five co-defendants, each represented by a different 

attorney, proceeded to a jury trial together. On March 12, 2009, following the 

presentation of the State’s case-in-chief, the trial court granted a defense motion to 

dismiss Counts IV, VI, and IX. “The trial court reasoned that the alleged victims, 

Shontez, Cameron, and Brownlee, were not in proximity to the co-defendants, did not 

hear any commands from the co-defendants, nor have any specific interactions with the 

co-defendants that would indicate that the co-defendants intended to rob them.” 

(Appellant’s App. p. 66). At the close of the evidence, the jury found Walker guilty on 

all the remaining Counts. 

On March 27, 2009, a sentencing hearing was held and the trial court sentenced 

Walker to twenty years imprisonment on Count I, ten years imprisonment on Counts II, 

III, V, VII, VIII, and X, four years imprisonment on Count XIV, and one year of 

imprisonment on Count XVII, with all sentences to be served concurrently, resulting in

an aggregate sentence of twenty years imprisonment. 

Each co-defendant took a separate direct appeal and was represented by a different 

appellate lawyer. Walker presented two issues on direct appeal: (1) the trial court’s 

denial of his motion for mistrial and (2) the imposition of a supplemental public defender 

fee. On December 8, 2009, we affirmed Walker’s conviction but remanded to the trial 

court for reconsideration of the supplemental public defender fee. This court reversed the 

convictions of co-defendant Johnnie Stokes on Counts I, attempted robbery, as a Class A
4

felony, and Counts III, V, VIII, and X, attempted robbery, as Class B felonies, and codefendants Curtis Stokes and Antonio Walker on Counts III, V, and VIII, attempted 

robbery, as Class B felonies, as there was insufficient evidence that the co-defendants had 

intended to rob victims Arnold, Simmons, Winfield, or Shantell.

On December 9, 2010, Walker filed a petition for post-conviction relief, which 

was amended on June 1, 2011. On July 17, 2011, an evidentiary hearing was held on the 

amended post-conviction petition. Walker’s appellate counsel testified that as part of her 

preparation for the direct appeal she reviewed the entire record in order to spot potential 

legal issues, and did not believe that sufficiency of evidence argument regarding the 

attempted robbery convictions was strong. On November 10, 2011, the post-conviction 

court denied relief, finding (1) Walker’s free-standing claim of insufficient evidence was 

not available in a post-conviction relief proceeding, and (2) his appellate attorney had not 

rendered ineffective assistance of appellate counsel because her decision not to raise a

sufficiency of the evidence issue was one of reasonable strategy. 

Walker now appeals. Additional facts will be provided as necessary. 

DISCUSSION AND DECISION

I. Standard of Review

On appeal from the denial of post-conviction relief, a petitioner stands in the 

position of one appealing from a negative judgment. Mauricio v. State, 941 N.E.2d 497, 

498 (Ind. 2011). We do not defer to the post-conviction court’s legal conclusions, but we 

will reverse only on a showing of clear error. Id. A post-conviction petition is a quasi-
5

civil remedy, and, as such, the petitioner bears the burden to prove by the preponderance 

of the evidence that he or she is entitled to relief. Moody v. State, 749 N.E.2d 65, 67 (Ind. 

Ct. App. 2001), trans. denied. In order to prevail on appeal, the petitioner must show that 

evidence is without conflict and leads unerringly and unmistakably to a conclusion 

opposite that reached by the post-conviction court. Id. On appeal from the denial of a 

petition for post-conviction relief, we neither reweigh the evidence nor judge the 

credibility of the witness. Id.

II. Insufficiency of the Evidence

Walker first contends that his attempted robbery convictions on Counts I, III, V, 

VIII, and X were supported by insufficient evidence and must therefore be reversed and 

vacated. The State responds that the sufficiency issue raised by Walker was available at 

the time of his direct appeal and cannot now be raised in post-conviction proceedings. 

Generally, post-conviction proceedings provide defendants with the opportunity to raise 

issues that either were not available on direct appeal or were not known at the time of the 

original trial. State v. Hernandez, 910 N.E.2d 213, 216 (Ind. 2009). Claims available on 

direct appeal but not presented are subsequently not available for post-conviction review. 

Id. Allegations of errors and most free-standing claims not raised on direct appeal are not 

available and are considered waived for purposes of post-conviction relief proceedings. 

Williams v. State, 808 N.E.2d 652, 659 (Ind. 2004). We agree with the State that in the 

present case, the sufficiency issue raised by Walker was clearly available at the time of 

his direct appeal and was in fact raised by Walker’s co-defendants on appeal. Failing to 
6

present the issue on direct appeal foreclosed Walker from raising the issue in postconviction relief proceedings. 

Walker attempts to avoid waiver by relying on the application of the fundamental 

error doctrine. The fundamental error doctrine is an exception to the waiver rule, but an 

extremely narrow one. Canaan v. State, 683 N.E.2d 227, 235 (Ind. 1997), reh’g denied.

It is available only when the record reveals clearly blatant violations of basic and 

elementary principles of due process and the harm or potential for harm cannot be denied. 

Id. Following Canaan, Indiana’s Supreme Court affirmed the concept that a fundamental 

error claim in post-conviction proceedings cannot be raised unless the petitioner can 

show deprivation of the right to effective counsel or issues were demonstrably 

unavailable at the time of trial or direct appeal. Sanders v. State, 765 N.E.2d 591, 592 

(Ind. 2002). Specifically, we stated: 

The fundamental error exception to the contemporaneous objection rule 

applies to direct appeals. 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. 

Edington v. State, 806 N.E.2d 310, 310 (Ind. 2004). 

Walker points to a number of cases which he claims support his argument that our 

supreme court and this court have held that free-standing post-conviction claims of 

insufficient evidence are nevertheless cognizable. See Koons v. State, 771 N.E.2d 685, 

688 (Ind. Ct. App. 2002) trans. denied (addressing sufficiency of the evidence claim that 
7

was not raised on appeal), and Badelle v. State, 754 N.E.2d 510, 543 (Ind. Ct. App. 2001) 

(court of appeals chose to address defendant’s sufficiency of evidence argument although 

it was not raised on direct appeal). We disagree with Walker’s interpretation of the case 

law indicated in Koons and Badelle. Both cases were decided around the same time 

frame as Sanders and while the case law might not have been immediately settled at the 

time of the Sanders decision, once Sanders became precedent, all cases since have been 

decided as we do today: fundamental error, with respect to the sufficiency of the evidence 

presented at trial, cannot be raised in post-conviction relief proceedings. Sanders, 765 

N.E.2d at 592. 

III. Ineffective Assistance of Appellate Counsel

Walker also contends that he received ineffective assistance from his appellate 

counsel. The effective assistance of counsel is a right that is guaranteed to all criminal 

defendants by the Sixth Amendment of the United States Constitution and Article I, 

Section 13 of the Indiana Constitution. Claims of ineffective assistance of counsel are 

analyzed according to the two-part test established in Strickland v. Washington, 466 U.S. 

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reh’g denied; Johnson v. State, 693 N.E.2d 

941, 951(Ind. 1998). reh’g denied. To prevail on a claim of ineffective assistance, the 

petitioner must demonstrate that: (1) counsel’s performance was deficient by falling 

below an objective standard of reasonableness based on prevailing professional norms; 

and (2) counsel’s performance prejudiced the defendant such there is “a reasonable 
8

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

would have been different.” Massey v. State, 955 N.E.2d 247, 253 (Ind. Ct. App. 2011). 

A reasonable probability is a probability sufficient to undermine confidence in the 

outcome. Id. 

Generally, when ignored issues are clearly stronger than those presented, the 

presumption of effective assistance of counsel will be overcome. Smith v. Robbins, 528 

U.S. 259, 288, 120 S.Ct. 746, 765 (2000). 

“Because all criminal defense attorneys will not agree on the most effective 

way to represent a client, ‘isolated mistakes, poor strategy, inexperience, 

and instances of bad judgment do not necessarily render representation 

ineffective.’ Thus there is a strong presumption that counsel rendered 

adequate assistance and used reasonable professional judgment.”

 

Armstrong v. State, 932 N.E.2d 1263, 1268 (Ind. Ct. App. 2010). 

There are three different grounds for claims of ineffective assistance of appellate 

counsel: (1) counsel’s actions denied the defendant access to appeal; (2) counsel failed to 

raise issues on direct appeal resulting in waiver of those issues; and (3) counsel failed to 

present issues well. Massey, 955 N.E.2d at 258. When evaluating a claimed deficiency 

in appellate representation due to an omission of an issue, as we will be doing here, a 

post-conviction court is properly deferential to appellate counsel’s choice of issues for 

appeal, unless such a decision was unquestionably unreasonable. Hampton v. State, 961 

N.E.2d 480, 491 (Ind. 2012). To constitute deficient performance by counsel, the 
9

unraised issues must have been clearly more likely to result in reversal or an order for a 

new trial. Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997).

Counsel 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), reh’g denied, cert. denied, 537 U.S. 839 (2002). The effectiveness of counsel 

cannot be measured from the perspective of hindsight; instead, an attorney’s performance 

can only reasonably and fairly be assessed based on the facts and circumstances before 

the attorney when the questioned decisions were made. Bieghler v. State, 481 N.E.2d 78, 

96 (Ind. 1985). In making the determination of counsel’s ineffectiveness, the court must 

view the facts as they existed at the time of counsel’s conduct and may not speculate, 

with the advantage of hindsight, as to what may have been the most advantageous 

strategy in a particular case. Williams v. State, 489 N.E.2d 594, 597 (Ind. Ct. App. 1986).

Walker now contends that because the sufficiency of evidence issue was not 

raised, he received ineffective assistance of counsel. In support of his argument, Walker 

focuses on the successful direct appeal of his co-defendants. Four of Walker’s codefendants challenged the sufficiency of the evidence for Counts I, III, V, VIII, and X on 

direct appeal. One co-defendant received a reversal on each Count challenged; two

others received a reversal on Counts III, V, VIII, and X, and the fourth co-defendant had 

each Count challenged on sufficiency of evidence affirmed. 
10

Walker contends that since this court found insufficient evidence for three of his 

co-defendants, his counsel was necessarily ineffective because she did not also raise the 

issue on direct appeal. Walker runs into a dilemma even if he is successful in reversing 

Counts III, V, VIII, and X. Count I, the Class A felony, attempted robbery, constitutes 

his sentence in the entire case with ten year sentences for the Class B felonies, attempted 

robbery convictions, imposed concurrent with his sentence in Count I. Thus, the outcome 

of Walker’s direct appeal would have had the same result of a twenty-year prison 

sentence had counsel raised a sufficiency of evidence challenge. In order to change the 

outcome of Walker’s sentence, he must challenge Count I as well, which he now does. 

However, Walker argues that because co-defendant, Johnnie Stokes, had Count I vacated, 

he would have also been successful in reversing Count I. All four of Walker’s codefendants challenged Count I and only one, Johnnie Stokes, had a positive outcome. 

Therefore, the negative outcomes of the three out of four co-defendants for Count I are an 

indication that a sufficiency of evidence claim was not a strong or obvious claim to 

present on direct appeal.

Walker’s appellate counsel testified at the evidentiary hearing that her decision to 

forgo raising the sufficiency issue was not a product of negligence, but rather a 

considered, strategic decision. Appellate counsel stated that she did not raise the

sufficiency of evidence claim because she believed Walker and his co-defendants were 

working as two groups operating together and believed the perpetrators were accomplices 

and, thus, were jointly and severally liable. Walker’s appellate counsel testified, “[she]
11

was under the impression that all of the alleged victims were being robbed during the 

incident as opposed to just one victim being robbed and the other victims just being 

present.” (Post-Conviction Transcript. p. 8). Sufficiency of the evidence was an issue 

which could have been raised on appeal but after appellate counsel analyzed the trial 

evidence, she did not feel the issue was strong. Appellate counsel was also faced with a 

record where Walker’s trial counsel had essentially presented the same argument to the 

jury who had then rejected that theory. 

Based on the record available at the time of appeal, appellate counsel’s choice of 

issues to present on direct appeal was a reasonable exercise of judgment which did not 

fall below the professional norm. Walker’s appellate counsel’s performance was not 

deficient in her representation nor has Walker demonstrated how he was prejudiced and 

deprived of a fair appeal by an alleged ineffectiveness of counsel. This court may not 

look back in hindsight and speculate as to whether raising the sufficiency of evidence 

claim would have presented a more favorable outcome.

Nevertheless, in an attempt to show how he was prejudiced by the actions of his 

appellate counsel, Walker cites to Carew v. State, 817 N.E.2d 281 (Ind. Ct. App. 2004). 

In Carew, we held that an appellate attorney’s failure to raise an issue on direct appeal 

that later prevailed in a substantially similar case was held to have prejudiced his client. 

Id. at 288-89. Carew went to trial around the same time another case sharing a 

substantially similar issue went to trial. Both trial counsel attorneys, while coordinating 
12

together, were denied the opportunity to present evidence at trial and both defendants 

were convicted as charged. Appellant counsel for Carew did not challenge the exclusion 

of evidence on direct appeal while appellate counsel for the other party did, leading to an 

order of a new trial by our supreme court. Id. at 284. In Carew, the trial counsel went to 

great lengths to preserve the exclusion of the expert witness’ testimony on appeal. Id. at 

286. He conducted two in depth offers of proof on expert witness testimony and

attempted to suppress a statement by the defendant before trial. Id. at 284. Carew’s trial 

counsel also informed the appellate division, as well as appellate counsel of the 

importance of the exclusion of the expert’s testimony and even suggested appellate 

counsel supplement his brief. Id. at 286. Appellate counsel also had strong precedent in 

favor of his client but chose not to challenge the exclusion of opinion testimony at trial. 

Id. at 287. Based on these facts, Carew is distinguishable from the case at hand because,

unlike Carew, Walker’s appellate counsel was not made aware of the importance of a 

particular issue by trial counsel, nor was there strong precedent in favor of her client that 

she ignored. Instead, she used what she believed provided her sufficient support in the 

trial record to raise issues on direct appeal which would be most beneficial to her client. 

Also, counsel for Walker and his five co-defendants did not coordinate together in 

deciding what issues should be preserved for direct appeal. Finally, the issue presented in 

Carew amounted to a clear legal question; here the issue is fact-based. 

Based on the facts available to appellate counsel at the time she reviewed the 

record and selected the issues to challenge, we cannot conclude that Walker’s appellate 
13

counsel’s decisions fell below any objective standard of reasonableness. Accordingly, 

we conclude that Walker was not denied effective assistance of counsel.

CONCLUSION

Based on the foregoing, we conclude that: (1) Walker’s claim that his convictions 

for attempted robbery were not supported by sufficient evidence is waived and; (2) the 

post-conviction court did not err in finding that Walker received effective assistance of 

counsel.

Affirmed.

NAJAM, J. and DARDEN, J. concur