Court of Appeals of Indiana | Memorandum Decision 20A-CR-523 | October 29, 2020 Page 1 of 22

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.

ATTORNEY FOR APPELLANT

Chris M. Teagle

Muncie, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Samuel J. Dayton

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Brandan J. Franze,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

October 29, 2020

Court of Appeals Case No.

20A-CR-523

Appeal from the 

Blackford Superior Court 

The Honorable 

J. Nicholas Barry, Judge

Trial Court Cause No.

05D01-1907-F6-226

Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-523 | October 29, 2020 Page 2 of 22

[1] Brandan J. Franze (“Franze”) was convicted after a jury trial of battery1 as a 

Class A misdemeanor and criminal recklessness2 as a Level 6 felony and was 

sentenced to an aggregate sentence of 910 days executed. Franze appeals and 

raises the following restated issues for our review:

I. Whether the trial court abused its discretion when it found 

that there were not reasonable grounds to believe that 

Franze lacked the ability to understand the proceedings 

and assist in the preparation of his defense;

II. Whether the trial court abused its discretion when it 

denied Franze’s trial counsel’s motion to withdraw and 

motion to continue the trial; and 

III. Whether Franze received ineffective assistance of trial 

counsel.

[2] We affirm.

Facts and Procedural History

[3] On June 30, 2019, Casey Thornburgh (“Thornburgh”) was spending time with 

his children at his ex-wife’s house, and at around 10:30 p.m., he decided to 

leave. Tr. at 64. Thornburgh began walking home, and as he was walking 

down the sidewalk, he was stopped by Franze, who yelled, “Hey! Who are 

you” to Thornburgh. Id. at 67-68. Thornburgh asked Franze the same 

1

See Ind. Code § 35-42-2-1(c)(1), (d)(1). 

2

See Ind. Code § 35-42-2-2(a), (b)(1)(A). 
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question, and Franze identified himself by name. Id. at 68. Franze walked 

toward Thornburgh, and Thornburgh saw that Franze had what appeared to be 

a black handgun.

3

 Id. at 68, 70. Franze began asking Thornburgh why 

Thornburgh had been underneath Franze’s house, and Thornburgh repeatedly 

told him that he had not been under Franze’s house. Id. at 68-69. Thornburgh 

told Franze that he was walking home after visiting his children, and Franze 

told him that he knew that Thornburgh had been to his house before, and 

Thornburgh said, “You’re right. I had been at your house. I’m your FedEx 

driver. I’ve delivered to you a few times.” Id. at 69. Franze said, “I knew it,” 

and pointed his gun at Thornburgh’s head. Id. at 70. 

[4] Thornburgh then attempted to get the gun away from Franze by using his left 

arm to knock Franze’s right arm down and trying to knock Franze to the 

ground. Id. at 70-71. When Thornburgh did this, he saw a flash of light and 

believed that the gun discharged, although he did not remember hearing 

anything. Id. at 73. The gun hit the ground, and Thornburgh thought to 

himself, “I need to get control of the gun, or I’m going to end up dead.” Id. at

71. As Thornburgh bent down to pick up the gun, he felt Franze’s arm reach 

around his neck and begin to choke him. Id. Thornburgh fell to the ground and 

was lying face down, but he was able to keep his hand on top of the gun. Id. 

3 The gun that the police later recovered was either a pellet gun or a BB gun that at first glance “would appear 

to be similar to a firearm.” Tr. at 119, 124-25, 127, 129. 
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Franze continued to ask Thornburgh why he was underneath Franze’s house, 

and Thornburgh continued to deny that he had been under the house. Id. The

next thing Thornburgh remembered was that, “everything went black.” Id.

When Thornburgh regained consciousness, Franze was standing over him and 

holding the gun. Id. at 73. Franze asked if Thornburgh was okay, and then he 

told Thornburgh to “get the ‘f’ out of . . . there.” Id. at 72, 90-91. Thornburgh 

left and called 911. Id. at 73. 

[5] On July 2, 2019, the State charged Franze with Class A misdemeanor battery, 

Level 6 felony strangulation, and Level 6 felony criminal recklessness. 

Appellant’s App. Vol. 2 at 21-22. On December 26, 2019, Franze’s trial counsel 

filed a motion to withdraw his appearance on the basis that Franze had failed to

pay trial counsel as agreed, and that motion was denied on December 29, 2019. 

Id. at 54-55, 56. On January 2, 2020, trial counsel filed another motion to

withdraw, this time alleging that there had been a breakdown of the attorneyclient relationship, that Franze had failed to fulfill his obligations to his 

attorney, and that Franze’s failure to cooperate with counsel negatively 

impacted counsel’s ability to serve as Franze’s attorney and to defend him 

against the charges. Id. at 58.

[6] The trial court held a final pretrial hearing on January 9, 2020 at which 

Franze’s trial counsel explained that Franze had asked him to call a certain 

witness, and trial counsel had spoken with those witnesses who said that “they 

don’t have anything.” Tr. at 4, 13. Trial counsel indicated that “things are 

trying to be put into the witness’s mouth” and that he had told Franze that he 
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would not “call a witness and suborn perjury.” Id. at 13. Trial counsel 

explained that this disagreement was an example of why he felt that he 

“need[ed] to be off of this case.” Id. Trial counsel also explained that Franze 

had “freaked out” when he saw templates in the case file that “had something 

to do with child molest” and that “he swore [trial counsel] was trying to get him 

for child molesting.” Id. at 7-8. 

[7] Franze began disputing the expenses for which trial counsel billed him and 

whether he had been provided with discovery, and at that time, trial counsel 

orally moved to hold a competency hearing. Id. at 14-15. At that time, Franze 

indicated that he felt like he was “having a little bit of a panic attack” and said 

that he did not have his medicine. Id. at 16. The trial court asked how long he 

had gone without medication, and Franze explained that he had been 

prescribed medication about a year before, but he did not like the medicine. Id. 

at 16-17. The trial court asked whether Franze would be able to control 

himself, and Franze stated that he could. Id. at 17. The trial court explained to 

Franze that at trial he would not be allowed to raise his hand and “start blurting 

out,” and Franze indicated that he understood. Id. at 16. Franze then 

explained that he had seen documents that confused him and that they had 

“freaked [him] out,” and he apologized. Id. at 17. Trial counsel told the trial 

court that he believed that Franze still did not understand what he had seen in 

his file, but Franze replied that he did understand, stating, “I grasp that you said 

that it is [a] blank form. Right? That you change as it fits my case?” Id. 
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[8] As the hearing progressed, trial counsel asked to clarify whether evidence about 

what happened when Franze was taken into custody would be excluded from 

trial, and Franze objected, indicating that he thought some of this evidence was 

important to his case. Id. at 18-19. The trial court explained to Franze that he 

“speak[s] through [his] attorney” and that he could not “just disagree with [his] 

attorney” and speak out about it. Id. at 19. Franze replied that he understood, 

but trial counsel said that disagreements over what evidence should be admitted 

at trial were an issue for Franze and trial counsel. Id. The trial court said, 

“Well, I don’t see where alternate counsel is going to remedy this, so that’s the 

way I am looking at [this situation].” Id. Trial counsel stated that he 

understood that the trial court was denying the motion for a competency 

evaluation hearing and that he would be filing a written motion. Id. 

[9] After the hearing concluded on January 9, 2020, Franze’s trial counsel filed a 

written motion to have Franze examined for competency. Appellant’s App. Vol. 

2 at 61-62. On January 10, 2020, the trial court denied the motion and found 

that there were no reasonable grounds to delay the trial by having the defendant 

examined by a mental health examiner. Id. at 63-64. On January 22, 2020, a 

jury trial was held, and at the beginning of the trial, a hearing was held at which 

trial counsel renewed his motion for a competency evaluation, asserting that, at 

the time of the pretrial deposition of the victim, Franze “had completely 

devolved . . . was paranoid . . . [s]omewhat delusional” and “was not 

cooperating with [counsel] in preparation for [the] hearing.” Tr. at 29-31. Trial 

counsel also mentioned that the officers who responded to Franze’s house the 
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night of the incident talked about doing an emergency detainment order on 

Franze that night. Id. at 29. In response to trial counsel’s argument, the trial 

court said, “Your client was agitated at the final pretrial. He was upset. I 

didn’t see anything that would lead me to believe that he was not competent to 

understand the proceeding or assist in a defense.” Id. at 31. The trial court 

further noted the following: 

Maybe there was a little bit of a personal rift going on between 

you and he, but . . . he has presented in Court before, as he 

indicated[,] for infraction trials. He’s understood the 

proceedings, and that wasn’t too long ago within the past six, 

eight months. He understood the proceedings. He was able to 

understand the Court’s ruling, understand the evidence. At one 

time at the final pretrial, he objected. . . . I just didn’t see 

anything that would lead me to believe that he didn’t understand. 

Id. 

[10] During this exchange, Franze had not yet appeared for the trial, and the trial 

court offered trial counsel an opportunity to move to continue the jury trial. Id. 

at 32. Franze eventually arrived, and the trial proceeded. Id. at 35. After voir 

dire was completed, trial counsel renewed his motion to have Franze’s 

competency evaluated and asked for the trial court to “take some testimony 

from [Franze] concerning the jury.” Id. at 36. The trial court then questioned

Franze under oath and outside the presence of the jury. Id.

[11] During this questioning, Franze stated that he was thirty-three years old, able to 

recall his address, explained that he had lived at his address for over two years, 
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and advised that the highest level of education he completed was tenth grade. 

Id. at 36-37, 39. Franze indicated that he understood what took place during 

jury selection, “We sat down. We went through, we done [sic] jury selection. 

He, obviously, both sides struck . . . and got rid of whoever felt like they needed 

to get rid of. But, and then now . . . we’re at recess.” Id. at 37. Franze then 

explained that he knew that the trial was coming up next and that the hearing 

was occurring because he “had an issue with a few people that was [sic] on the 

jury.” Id. Franze thought that one of the jurors had been a coworker and 

friend of his estranged wife. Id. The trial court noted that it had observed 

Franze conferring with his attorney, and Franze confirmed that he had 

discussed the prospective jurors with trial counsel, that he did not believe that 

he had enough time to discuss the potential jurors, but that he did understand 

what was going on. Id. at 38-39. Franze added, “Like I understand, because 

I’ve done this with you guys before. But what I don’t understand is how 

quickly and unprepared I was with jury. Picking the jury. Who was on there?

How they relate in my life.” Id. at 39. The trial court confirmed with Franze 

that he has participated in a jury trial as a defendant in the past and that he was 

able to communicate with his attorney, voice his concerns, and participate with 

his attorney. Id. at 39-40. Franze also said that he understood that his trial 

counsel had moved to evaluate whether he was competent to stand trial. Id. at 

40. After concluding the hearing, the trial court found that 

there [is] not sufficient reasonable justification to order a 

competency exam for the defendant. The defendant seems, in 

the opinion of the Court; while he may not agree with the jury, 
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he is able to understand the nature [of the] proceedings as far as 

where we are in trial proceedings. Where we are headed, and he 

does have the ability to participate in his defense with his 

attorney. 

Id. at 43. The trial court then denied trial counsel’s motion for a competency 

evaluation. Id. 

[12] A short time later, but before the trial began, Franze indicated that he was 

“having a little trouble understanding” the proceedings. Id. at 45. The trial 

court explained in detail how the trial could proceed. Id. at 45-47. Franze 

stated that he thought that maybe he did need to be evaluated as to whether he 

could stand trial because he was “missing” some of what had happened and did 

not feel like he was “prepared.” Id. at 47. The trial court concluded that based 

on Franze’s testimony under oath, that it was “finding that [Franze] do[es] have 

ability to participate in [his] defense and understand the proceedings” and that 

Franze was competent to stand trial. Id. at 48, 50. 

[13] At the conclusion of the jury trial, Franze was found guilty of Class A 

misdemeanor battery and Level 6 felony criminal recklessness but not guilty of 

Level 6 felony strangulation. Appellant’s App. Vol. 2 at 129-31. The trial court 

sentenced Franze to 365 days for his battery conviction and 910 days for his 

criminal recklessness conviction, to be served concurrently for an aggregate 

executed sentence of 910 days. Id. at 150-52. Franze now appeals. 
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Discussion and Decision

I. Competency to Stand Trial

[14] We have previously determined that “the conviction of an incompetent 

defendant is a denial of federal due process and a denial of a state statutory 

right as well.” Faris v. State, 901 N.E.2d 1123, 1125 (Ind. Ct. App. 2009), trans. 

denied. A defendant is not competent to stand trial when he is unable to 

understand the proceedings and assist in the preparation of his defense. Mast v. 

State, 914 N.E.2d 851, 856 (Ind. Ct. App. 2009), trans. denied. Indiana Code 

section 35-36-3-1 states in pertinent part:

(a) If at any time before the final submission of any criminal case 

to the court or the jury trying the case, the court has reasonable 

grounds for believing that the defendant lacks the ability to 

understand the proceedings and assist in the preparation of a 

defense, the court shall immediately fix a time for a hearing to 

determine whether the defendant has that ability. The court shall 

appoint two (2) or three (3) competent, disinterested:

(1) psychiatrists;

(2) psychologists endorsed by the Indiana state board of 

examiners in psychology as health service providers in 

psychology; or

(3) physicians;

who have expertise in determining competency. . . .
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Ind. Code § 35-36-3-1(a). However, the right to a competency hearing is not 

absolute. Minnick v. State, 965 N.E.2d 124, 131 (Ind. Ct. App. 2012), trans. 

denied. Instead, such a hearing is required only when a trial court is confronted 

with evidence creating a reasonable or bona fide doubt as to a defendant’s 

competency. Id. The trial court judge’s observations of a defendant in court 

can serve as an adequate basis for finding that a competency hearing is not 

necessary. Gibbs v. State, 952 N.E.2d 214, 220 (Ind. Ct. App. 2011), trans. 

denied. Although Indiana Code section 35-36-3-1 contains provisions for the 

appointment of medical professionals, those procedures “are only required 

under [the statute] if ‘the court has reasonable grounds for believing that the 

defendant lacks the ability to understand the proceedings and assist in the 

preparation of his defense.’” Cotton v. State, 753 N.E.2d 589, 591 (Ind. 2001) 

(quoting Ind Code § 35-36-3-1).

[15] The decision regarding whether there is a reasonable doubt is within the trial 

court’s discretion and depends upon the specific facts and circumstances of each 

case. Minnick, 965 N.E.2d at 131. We will only reverse the trial court's 

decision if we find that the trial court has abused its discretion. Id. The trial 

court has abused its discretion when its decision is clearly against the logic and 

effect of the facts and circumstances before the court or when the trial court has 

misinterpreted the law. Id. at 131-32. 

[16] Franze argues that the trial court abused its discretion when it failed to conduct 

an evidentiary hearing pursuant to Indiana Code section 35-36-3-1 as to his 

competency to stand trial. Franze contends that the statements made by his 
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trial counsel that Franze was “devolved, paranoid, and delusional and 

incompetent to stand trial,” during the final pretrial hearing and the statement 

of the responding officers about obtaining an emergency detainment order for 

him on the night of the crimes, together with Franze’s statements regarding the 

treatment he had received for his psychological problems and the medications 

he had been prescribed all point to reasonable grounds for a competency 

hearing to be held. He further asserts that there were reasonable grounds to

believe he could not understand the proceedings and assist in the preparation of 

his defense, and that although the trial court made some effort to conduct a 

hearing in accordance with the statute, it only questioned Franze as to his 

understanding of the jury trial process but failed to inquire as to whether or not 

Franze could effectively assist his counsel in the preparation of his defense and 

failed to appoint medical professionals as set forth in the statute.

[17] In the present case, trial counsel made several requests for the trial court to 

order a competency evaluation for Franze, including an oral motion at the final 

pretrial hearing, a written motion the same day, and another oral motion on the 

morning of the jury trial. At the final pretrial hearing, in the written motion on 

the same date, and in an oral motion at a pretrial hearing on the morning of the 

jury trial, trial counsel mainly focused on his interactions with Franze during 

trial preparation, and trial counsel’s concerns focused on differences of opinion 

that Franze had about what evidence should be admitted at trial and what 

witnesses should be called to testify and that there was an issue where Franze 

observed a blank template for a motion in limine that referred to child 
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molesting in his file and “freaked out.” Tr. at 8, 15-16, 17, 19, 29-31; Appellant’s 

App. Vol. 2 at 61-62. Franze explained that he had seen documents that 

confused him and that they had “freaked [him] out,” and he apologized. Id. at 

17. Trial counsel told the trial court that he believed that Franze still did not 

understand what he had seen in his file, but Franze replied that he did 

understand, stating, “I grasp that you said that it is [a] blank form. Right? That 

you change as it fits my case?” Id. 

[18] On the morning of the jury trial, trial counsel stated that at the time of the 

pretrial deposition of the victim, Franze “had completely devolved . . . was 

paranoid . . . [s]omewhat delusional” and “was not cooperating with [counsel] 

in preparation for [the] hearing.” Tr. at 29-31. Trial counsel also mentioned 

that the officers who responded to Franze’s house the night of the incident 

talked about doing an emergency detainment order on Franze that night. Id. at 

29. After the completion of voir dire, trial counsel renewed his motion for a 

competency evaluation based on statements Franze had made to him about the 

jury. Id. at 36. The trial court permitted trial counsel to examine Franze under 

oath outside the presence of the jury, and the trial court followed up with 

questions of its own. Id. at 36-43. When Franze realized that he did not fully 

understand the trial court’s separation of witnesses order, he renewed the 

request for a competency evaluation himself. Id. at 44-45. 

[19] Although Franze appeared to have experienced stress or anxiety about the 

criminal proceedings, he was capable of listening to his trial counsel and 

providing information to assist his trial counsel. Id. at 9-10, 31, 38, 40. During
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the questioning of Franze, he stated that he was thirty-three years old, able to 

recall his address, explained that he had lived at his address for over two years, 

and advised that the highest level of education he completed was tenth grade. 

Id. at 36-37, 39. Franze indicated that he understood what took place during 

jury selection, and explained that he knew that the trial was coming up next 

and that the hearing was occurring because he “had an issue with a few people 

that was [sic] on the jury,” which included that he thought that one of the jurors 

had been a coworker and friend of his estranged wife. Id. at 37. The trial court 

noted that it had observed Franze conferring with his trial counsel, and Franze 

confirmed that he had discussed the prospective jurors with trial counsel and

that he did not believe that he had enough time to discuss the potential jurors, 

but that he did understand what was going on. Id. at 38-39. Franze added, 

“Like I understand, because I’ve done this with you guys before. But what I 

don’t understand is how quickly and unprepared I was with jury. Picking the 

jury. Who was on there? How they relate in my life.” Id. at 39. The trial court 

confirmed with Franze that he has participated in a jury trial as a defendant in 

the past and that he was able to communicate with his current trial counsel, 

voice his concerns, and participate with counsel. Id. at 39-40. Franze also said 

that he understood that his counsel had moved to evaluate whether he was 

competent to stand trial. Id. at 40.

[20] The record showed that Franze was capable of listening to what his trial 

counsel was telling him and communicate with him. It showed that Franze 

was able to understand what his counsel told him regarding the 
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misunderstanding about the template and acknowledge that he made a mistake 

and apologize for freaking out. Similarly, after the completion of voir dire, 

Franze was able to discuss with his trial counsel and to articulate to the trial 

court that he believed that one of the jurors might have been a friend and 

colleague of his estranged wife. Id. at 36-38, 41. While Franze may have not 

have given a perfect description of jury selection, he was able to explain in 

simple terms what had transpired and that he understood the purpose of jury 

selection and would be able to assist his attorney. Id. at 37. By stating that he 

was concerned that one of the jurors may have known his wife, Franze 

demonstrated that he was able to assist in his own defense. The trial court’s 

questioning of Franze was an appropriate way to determine if reasonable 

grounds existed for believing that he lacked the ability to understand the 

proceedings and assist in the preparation of a defense. 

[21] When the trial court explained the trial procedure to Franze and that the 

attorneys would be presenting opening arguments, the jury would be instructed, 

evidence would be presented, and the jury would decide the case, Franze said 

that he understood that general procedure because he had “done this . . .

before.” Id. at 39. Although Franze stated that he was not sure if he was 

“doing it right,” he advised the trial court that he was able to “participate with 

[his] attorney.” Id. at 40. As the trial court pointed out, the standard is not 

whether Franze had a perfect understanding. Id. at 39. The record showed that 

Franze was able to understand the proceedings in general. 
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[22] Based on the record before us, there was ample support for the trial court’s 

determination that there were no reasonable grounds to believe that Franze 

lacked the ability to understand the proceedings and to assist in the preparation 

of his defense. We conclude that the trial court did not abuse its discretion by 

denying Franze’s motion for a competency evaluation. 

II. Motion to Withdraw and Motion to Continue

[23] Franze argues that the trial court abused its discretion when it denied his trial 

counsel’s motion to withdraw his appearance and a motion to continue. 

Whether to allow counsel to withdraw is within the trial court’s discretion, and 

we will reverse only when denial constitutes a clear abuse of discretion and 

prejudices the defendant's right to a fair trial. Bronough v. State, 942 N.E.2d 826, 

829 (Ind. Ct. App. 2011), trans. denied. The decision whether to grant a 

continuance when the motion is not based on statutory grounds is within the 

discretion of the trial court. Jones v. State, 957 N.E.2d 1033, 1042 (Ind. Ct. App. 

2011). We will not reverse such a decision absent a clear showing that the trial 

court has abused its discretion, and the appellant must overcome a strong 

presumption that the trial court exercised its discretion properly. Id. Further, 

the defendant must establish that he was prejudiced because of the trial court’s 

denial of his motion. Id. 

[24] Franze asserts that the trial court abused its discretion when it denied his trial 

counsel’s motion to withdraw his appearance. Franze contends that the 

evidence presented showed a breakdown in the attorney-client relationship
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between him and his trial counsel that showed that neither of them was 

prepared for the jury trial. He, therefore, contends that the trial court should 

have granted the continuance and motion to withdraw or in the alternative 

granted the motion to continue to ensure that Franze had legal counsel who 

was adequately prepared to represent him at trial.

[25] Initially, Franze has waived appellate review regarding trial counsel’s motion to 

withdraw his appearance because he has failed to raise a cogent argument. The 

only case he relies upon in his argument is Parr v. State, 504 N.E.2d 1014 (Ind. 

1987). Parr did not involve the denial of an attorney’s motion to withdraw an 

appearance and, instead, involved the denial of a motion to continue filed by a 

defendant who wished to obtain private counsel. Id. at 1016. Therefore,

Franze has failed to advance a cogent argument with citations to the legal 

standard for reviewing denials of motions to withdraw an appearance. See Ind. 

Appellate Rule 46(A)(8)(a); see also Mallory v. State, 954 N.E.2d 933, 936 (Ind. 

Ct. App. 2011) (“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.”). 

[26] Waiver notwithstanding, Franze has not shown that he was prejudiced by the 

denial of his attorney’s motion to withdraw his appearance. “[A] defendant 

must demonstrate that he was prejudiced before we may reverse because the 

trial court denied counsel’s motion to withdraw.” Bronough, 942 N.E.2d at 830. 

Here, Franze asserts only that neither trial counsel nor Franze “believed that 

[trial counsel] was prepared to try the case.” Appellant’s Br. at 13. Franze does 
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not contend, or provide any citations to the record to demonstrate, that trial 

counsel was actually unprepared to try the case at trial. We, therefore, 

conclude that he has not shown that he was prejudiced by the denial of the 

motion to withdraw appearance and trial counsel’s continued representation of 

him. 

[27] As to his argument regarding the motion to continue, Franze seems to assume 

that trial counsel’s request to continue the case related to his motion to

withdraw. However, the record does not support this assumption. In support 

of his contention that the trial court abused its discretion, Franze cites to page 

32 of the transcript. Appellant’s Br. at 12. The motion to continue referenced on 

that page came after Franze had failed to appear on the morning of the trial,

and the trial court inquired as to whether trial counsel would like to move for a 

continuance due to Franze’s absence. Tr. at 32. However, when Franze was

located, the jury trial went forward, and the issue of whether a continuance 

should be granted due to Franze’s absence became moot. Therefore, the trial 

court did not abuse its discretion by not granting a motion to continue the trial

after Franze had appeared for trial and the basis for the continuance no longer 

existed and when the motion was not renewed on any other basis. We 

conclude that the trial court did not abuse its discretion when it denied trial 

counsel’s motion to withdraw his appearance or his motion to continue. 

III. Ineffective Assistance of Counsel 

[28] “The Sixth Amendment to the United States Constitution guarantees criminal 

defendants the right to counsel and mandates that the right to counsel is the 
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right to the effective assistance of counsel.” Bobadilla v. State, 117 N.E.3d 1272, 

1279 (Ind. 2019). “We evaluate Sixth Amendment claims of ineffective 

assistance under the two-part test announced in Strickland.” Rondeau v. State, 48 

N.E.3d 907, 916 (Ind. Ct. App. 2016) (citing Strickland v. Washington, 466 U.S. 

668, 698 (1984)), trans. denied. To prevail on a claim of ineffective assistance of 

counsel, a petitioner must demonstrate that (1) counsel’s representation fell 

short of prevailing professional norms, and (2) counsel’s deficient performance 

prejudiced the defendant such that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been 

different. Strickland, 466 U.S. at 687-88, 698. “‘A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.’” Rondeau, 48 

N.E.3d at 916 (quoting Strickland, 466 U.S. at 698). “The two prongs of the 

Strickland test are separate and independent inquiries.” Id. (citing Strickland, 466 

U.S. at 697). “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 Strickland, 466 U.S. at 697).

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

offer strong and convincing evidence to overcome this presumption. 

McCullough v. State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012), trans. denied. We 

will not lightly speculate as to what 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 v. State, 904 

N.E.2d 302, 308 (Ind. Ct. App. 2009) (citing Whitener v. State, 696 N.E.2d 40, 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-523 | October 29, 2020 Page 20 of 22

42 (Ind. 1998)), trans. denied. Isolated omissions or errors, poor strategy, or bad 

tactics do not necessarily render representation ineffective. McCullough, 973 

N.E.2d at 74. 

[30] Franze argues that he received ineffective assistance of his trial counsel. He 

alleges that his trial counsel was ineffective because he was not prepared to

adequately defend Franze at trial, had advised the trial court that he believed 

that Franze wanted trial counsel to suborn perjury, and had stated to the trial 

court that Franze was devolved, paranoid, and delusional. Franze asserts that 

the most glaring deficiency was that trial counsel’s statement to the trial court 

that Franze wanted counsel to call witnesses and suborn perjury. Franze thus 

contends that “there is no way that the sentence imposed could be reliable” 

because the trial court could not have “possibly give[n] the same weight to the 

evidence presented by Franze at the sentencing hearing when [it] had 

previously been informed by Franze’s counsel that Franze wished for counsel to

suborn perjury.” Appellant’s Br. at 15. Franze argues that his convictions 

should be therefore reversed. 

[31] As to Franze’s contentions that his trial counsel was ineffective for not being

prepared to adequately defend Franze at the trial and making the statement to 

the trial court that Franze was devolved, paranoid, and delusional, he has failed 

to develop these claims with any argument supported by cogent reasoning and 

citation to authorities pursuant to Indiana Appellate Rule 46(A)(8)(a). As such, 

Franze has waived this argument for appellate consideration. See Davis v. State,

835 N E.2d 1102, 1113 (Ind. Ct. App. 2005) (providing that failure to make a 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-523 | October 29, 2020 Page 21 of 22

cogent argument results in waiver), trans. denied; see also App. R. 46(A)(8)(a) 

(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). 

[32] “The two prongs of the Strickland test are separate and independent inquiries.” 

Rondeau, 48 N.E.3d at 916. “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 Strickland, 466 U.S. at 697). As to his 

contention that his trial counsel was ineffective for advising the trial court that 

he believed that Franze wanted trial counsel to suborn perjury, Franze argues

that “there is no way that the sentence imposed could be reliable,” see 

Appellant’s Br. at 15, which is not the standard for determining whether his

convictions should be set aside and a new trial ordered. See Strickland, 466 U.S. 

at 698. The relief Franze requests in his appeal is the reversal of his 

convictions, not remand for a new sentencing hearing. See Appellant’s Br. at 15.

Franze has not shown how his claim of prejudice at sentencing is connected to

his requested relief of reversal of his convictions. His claim of prejudice on this 

contention is therefore waived for failure to make a cogent argument. App. R. 

46(A)(8)(a). 

[33] However, even if Franze had argued that there was a reasonable probability 

that the outcome of his trial would have been different had his trial counsel not 

advised the trial court that he believed that Franze wanted him to suborn 

perjury, the record does not support such a claim because Franze was convicted 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-523 | October 29, 2020 Page 22 of 22

after a jury trial. Trial counsel made the challenged statement to the trial court 

at the final pretrial hearing held on July 9, 2019. Tr. at 2, 13. The jury was not 

sworn in for trial until July 22, 2020. Id. at 21, 23. Therefore, Franze has not 

shown a reasonable probability of a different outcome at trial -- that the jury 

would not have convicted him -- but for the fact that trial counsel told the trial 

court he believed that Franze wanted him to suborn perjury. As Franze cannot 

show that the result of the trial would have been different or that he suffered 

any prejudice, he has not shown that he received ineffective assistance of trial 

counsel.

[34] Affirmed. 

Pyle, J., and Tavitas, J., concur.