Court of Appeals of Indiana | Memorandum Decision 18A-PC-2799 | October 16, 2019 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.

ATTORNEY FOR APPELLANT

David Wemhoff

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Matthew B. MacKenzie

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Harold E. Chastain,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

October 16, 2019

Court of Appeals Case No.

18A-PC-2799

Appeal from the Elkhart Superior 

Court

The Honorable Stephen R. 

Bowers, Judge

Trial Court Cause No.

20D02-1801-PC-3

Mathias, Judge.

[1] Following his convictions for Class C felony intimidation with a deadly weapon 

and Class B misdemeanor battery, Harold E. Chastain (“Chastain”) filed a 
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petition for post-conviction relief in Elkhart Superior Court. The postconviction court denied Chastain’s petition. Chastain appeals and presents two 

issues, which we restate as: (1) whether the post-conviction court clearly erred 

in determining that Chastain was not denied the effective assistance of trial 

counsel; and (2) whether the post-conviction court clearly erred in rejecting 

Chastain’s claim that he did not knowingly and intelligently waive his right to 

testify on his own behalf. 

[2] We affirm. 

Facts and Procedural History

[3] The facts underlying Chastain’s convictions were set forth by this court on 

direct appeal as follows: 

[O]n the evening of March 8, 2013, Justin Beegle was waiting for 

a table with his family at the Between the Buns restaurant in 

Elkhart. Beegle heard Chastain loudly arguing with a woman, 

Tracy Wilmore, in the parking lot, and, after he saw Chastain 

shove her, Beegle decided to intervene. He began walking toward 

Chastain and Wilmore. Chastain noticed Beegle walking toward 

him and said, “do you have a f***ing problem?” Tr. p. 237. 

Beegle stopped walking when he was about ten to fifteen feet 

from Chastain and had some argumentative words with 

Chastain. Chastain started walking toward Beegle, who told 

Chastain, “you don’t want to do that . . . .” Id. at 238. Chastain 

then turned around, went to his truck, retrieved a handgun, 

cocked and pointed it at Beegle, and then said “I’ll f***ing kill 

you” several times. Id. Beegle responded by telling Chastain he 

was a “f***ing p***y.” Id. at 265. The encounter ended shortly 

thereafter when Chastain got in his truck and drove away.
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Chastain v. State, 58 N.E.3d 235, 236–37 (Ind. Ct. App. 2016), trans. denied. As a 

result of this encounter, the State charged Chastain with Class C felony 

intimidation, Class D felony pointing a firearm, and Class B misdemeanor 

battery. Id. at 237. 

[4] At Chastain’s jury trial, two neutral eyewitnesses testified that they heard 

Chastain threaten his girlfriend Wilmore; specifically, they heard him yell “shut 

your f**king mouth,” and “I’m going to f**king kill you.” Trial Tr. Vol. 1, pp. 

44, 46, 116. These witnesses also testified that when Beegle approached 

Chastain and Wilmore, Chastain stated to Beegle, “do you want a piece of 

this[?]” and “I’ll shoot you.” Id. at 49, 120. When Beegle responded by telling 

Chastain, “you don’t want to do that,” Chastain retrieved a handgun from his 

truck, cocked it, and pointed it at Beegle, who testified that Chastain repeatedly 

told him, “I’ll f**king kill you.” Id. at 238. 

[5] Chastain’s girlfriend testified that, when Beegle approached them, she told him 

to leave. She further testified that before he retrieved his handgun, Chastain told 

her that Beegle had a knife. She also testified that Chastain removed the 

ammunition magazine from his handgun before pointing it at Beegle. Another 

of Chastain’s friends, who was present that night, testified that he did not see a 

knife and that Chastain did not tell him that Beegle had a knife the night of the 

incident. However, this friend explained that he “heard about a knife later on.” 

Trial Tr. Vol. 2. p. 341. Beegle admitted that he carried a knife clipped on his 

belt but denied brandishing or even touching the knife on the night in question. 
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Neither of the two neutral witnesses saw a knife or heard anyone mention a 

knife during the confrontation between Chastain and Beegle. 

[6] Chastain’s trial counsel called as witnesses Beegle’s ex-girlfriend, who was 

dating Beegle at the time of the incident, and the ex-girlfriend’s father. Both of 

these witnesses testified, for purposes of impeaching Beegle’s testimony, that he 

later told them he pulled his knife on Chastain and that Chastain pulled a gun 

on him in response. Trial Tr. Vol. 2, pp. 352, 363. The trial court instructed the 

jury to consider these statements only for purposes of impeaching Beegle’s 

testimony that he did not brandish the knife. 

[7] Toward the end of the trial, Chastain’s counsel requested a break to allow 

Chastain “an opportunity to make a final call” regarding whether he would 

testify on his own behalf. Trial Tr. Vol. 2, p. 453. The court recessed and 

resumed its proceedings forty-two minutes later. Chastain did not testify. 

[8] In his closing statement, Chastain’s trial counsel argued that Chastain acted in 

self-defense after Beegle brandished his knife. He argued that the neutral 

eyewitnesses were too far away to see the knife and noted that Chastain told 

others that Beegle had a knife. He also mentioned that the testimony of Beegle’s 

ex-girlfriend and her father indicated that Beegle later admitted to them that he 

did pull his knife that night. 

[9] The jury found Chastain guilty as charged, but the trial court vacated the 

pointing a firearm conviction at sentencing. Trial Tr. Vol. 3, p. 595. On the 

Class C felony conviction, the court sentenced Chastain to six years, suspended 
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to probation; on the Class B misdemeanor conviction, the trial court sentenced 

Chastain to 180 days, suspended to probation. 

[10] On direct appeal, Chastain argued that the State had presented insufficient 

evidence to convict him of Class C felony intimidation. After analyzing several 

cases interpreting the intimidation statute, we concluded: 

[A]s held by this court in Roar [v. State, 52 N.E.3d 940 (Ind. Ct.

App. 2016)], and as adopted by our supreme court,[1] a conviction 

under the intimidation statute should not depend upon a precise 

parsing of the threatening language used by a defendant or a 

detailed timeline of when a threat was issued in relation to a prior 

lawful act. Here, it is clear that Beegle engaged in a prior lawful 

act, and there was a clear nexus between that act and Chastain’s 

threat to kill Beegle while pointing a gun at him. Thus, there is 

sufficient evidence to support the jury’s finding that Chastain 

committed the crime of intimidation while drawing or using a 

deadly weapon.

Chastain, 58 N.E.3d at 241. 

[11] On January 17, 2018, Chastain filed a petition for post-conviction relief, 

alleging ineffective assistance of trial counsel and prosecutorial misconduct with 

regard to discovery. The post-conviction court held an evidentiary hearing on 

Chastain’s petition on August 23, 2018. At the hearing, Chastain and his trial 

counsel testified. Chastain testified that his trial counsel informed him of his 

1 Our supreme court granted transfer in Roar and “adopt[ed] and incorporate[ed] that portion of the Court of 

Appeals’ opinion addressing the sufficiency of the evidence in accordance with Indiana Appellate Rule 

58(A)(1)[.]” Roar v. State, 54 N.E.3d 1001, 1002 (Ind. 2016). Our supreme court summarily affirmed the 

remaining portion of our opinion. Id. (citing App. R. 58(A)(2)). 
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right to testify but claimed that his counsel had not prepared him to testify. 

Chastain also testified that, during trial, he could not decide whether he should 

testify but that he now wished he had testified: 

After – after the fact and understanding a lot more of how it all 

works through the court systems, how the actual proceedings 

take place, I wish I would have seen a few live trials in real life to 

see how it actually works. Uh, the preparedness of witnesses and 

the fact that the evidence was not completely given to the jury or 

the court to – after the fact, it was very clear to me that nobody 

testified to [Beegle] having the knife during the trial. It’s a huge 

part of the trial.

Post-Conviction Tr. p. 27. On October 29, 2018, the post-conviction court 

entered findings of fact and conclusions of law denying Chastain’s petition. 

Chastain now appeals. 

Post-Conviction Standard of Review 

[12] Our standard of review for claims that a post-conviction court erred in denying 

relief is well settled. The post-conviction petitioner bears the burden of 

establishing grounds for relief by a preponderance of the evidence. Willoughby v. 

State, 792 N.E.2d 560, 562 (Ind. Ct. App. 2003), trans. denied. When a petitioner 

appeals the denial of a petition for post-conviction relief, the petitioner stands in 

the position of one appealing from a negative judgment. Id. On appeal, we do 

not reweigh evidence nor judge the credibility of witnesses; therefore, to prevail, 

Chastain must show that the evidence in its entirety leads unerringly and 

unmistakably to a conclusion opposite that reached by the post-conviction 
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court. Id. Where, as here, the post-conviction court makes findings of fact and 

conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we 

do not defer to the court's legal conclusions, but the “findings and judgment will 

be reversed only upon a showing of clear error—that which leaves us with a 

definite and firm conviction that a mistake has been made.” Henley v. State, 881 

N.E.2d 639, 644 (Ind. 2008).

I. Ineffective Assistance of Trial Counsel 

[13] Chastain contends that his trial counsel was ineffective for a variety of reasons. 

“[C]ounsel’s performance is presumed effective, and a defendant must offer 

strong and convincing evidence to overcome this presumption.” Kubsch v. State, 

934 N.E.2d 1138, 1147 (Ind. 2010). A claim of ineffective assistance of trial 

counsel requires a showing that: (1) counsel’s performance was deficient by 

falling below an objective standard of reasonableness; and (2) that the 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 v. Washington, 466 U.S. 668, 

694 (1984); Kubsch, 934 N.E.2d at 1147. Failure to satisfy either of the two 

elements will cause the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind. 

2002). When it is easier to dispose of an ineffectiveness claim on the lack of 

prejudice, then this is the course we should follow. Trujillo v. State, 962 N.E.2d 

110, 114 (Ind. Ct. App. 2011). Moreover, “[i]solated mistakes, poor strategy, or 

bad tactics do not necessarily amount to ineffective assistance of counsel.” 

Herrera v. State, 679 N.E.2d 1322, 1326 (Ind. 1997) (citations omitted). 
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[14] Here, Chastain contends that his trial counsel was constitutionally ineffective 

because he failed to call Chastain as a witness. As a result of this failure, 

Chastain contends that the only substantive evidence that Beegle drew a knife 

was not presented to a jury, thereby hamstringing his claim of self-defense. 

[15] It has long been the law in Indiana that “[t]he determination of whether a 

defendant should testify is a matter of trial strategy.” White v. State, 25 N.E.3d 

107, 134 (Ind. Ct. App. 2014) (citing Whitener v. State, 696 N.E.2d 40, 42 (Ind. 

1998)), trans. denied. It has also been held, however, that the right to testify is 

personal to the defendant and may not be waived by counsel as a matter of trial 

strategy. Moore v. State, 655 N.E.2d 1251, 1254 (Ind. Ct. App. 1995) (citing 

United States v. Curtis, 742 F.2d 1070, 1075 (7th Cir. 1984)). We take this to 

mean that, if a defendant wishes to testify, trial counsel cannot prevent him

from doing so as a matter of trial strategy. And the corollary of this rule is that 

trial counsel also cannot force a client to testify if he does not wish to do so. 

Ultimately, the question of whether to testify belongs to the defendant. 

[16] Here, there is no evidence to suggest that Chastain’s counsel prevented him 

from testifying. Chastain admitted that his trial counsel informed him of his 

right to testify. See Post-Conviction Tr. p. 22 (in response to question “Did [trial 

counsel] explain anything about testifying?” Chastain responded, “He said I 

had the right to testify.”). Moreover, the trial transcript shows that trial counsel 

received an extended recess to discuss with Chastain his decision of whether to 

testify. See Trial Tr. Vol. 2, p. 453 (trial counsel requests a recess to allow 

Chastain “an opportunity to make a final call” regarding whether he would 
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testify on his own behalf). When the trial resumed, Chastain did not testify. 

From this, it can reasonably be inferred that Chastain chose not to testify. 

Indeed, at the post-conviction hearing, he frankly admitted that he was unsure 

of whether to testify during his trial but, in hindsight, wished he had. This 

supports the post-conviction court’s determination that Chastain’s trial counsel

was not ineffective. He clearly gave Chastain the choice of whether to testify, 

and Chastain chose not to do so. Chastain’s after-the-fact regret does not mean 

that his trial counsel was ineffective. 

[17] Still, Chastain argues that his testimony would have been the only substantive 

evidence regarding whether Beegle brandished his knife and that his trial 

counsel should have prepared him to testify and called him as a witness to 

establish this fact.

2 He notes that, although Beegle’s ex-girlfriend and her father 

testified that Beegle told them that he pulled his knife on Chastain, the trial 

court admitted this evidence only for impeachment purposes. While this is true, 

it ignores the fact that Chastain’s girlfriend testified that, before Chastain 

retrieved his handgun, he told her that Beegle had a knife. Another of 

Chastain’s friends testified that he heard about the knife “later on.” Trial Tr. 

Vol. 2. p. 341. And Beegle admitted that he was carrying a knife but denied ever 

pulling it out during his confrontation with Chastain. Thus, assuming that the 

2 In support of his argument that he was not adequately prepared to testify, Chastain cites Tison v. State, No. 

82A01-0904-PC-179, 2009 WL 3161404 (Ind. Ct. App. Oct. 2, 2009), trans. denied, which is an unpublished 

memorandum decision. We remind appellant’s counsel that, pursuant to Indiana Appellate Rule 65(D), a

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 law of the case.
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jury obeyed the trial court’s instructions to consider the testimony of Beegle’s 

ex-girlfriend and her father for impeachment purposes only,3 the jury also heard 

other substantive evidence that Beegle had a knife. 

[18] Furthermore, even if Chastain’s counsel did advise him not to take the stand, 

such advice was not unreasonable given Chastain’s criminal history. At the 

time of trial, Chastain had a prior conviction for Class A misdemeanor 

conversion (he was originally charged with Class D felony theft) and two prior 

convictions for Class A misdemeanor battery. Accordingly, had he testified on 

his own behalf, Chastain would have been subject to impeachment based on his 

conviction for conversion. See Ind. Evidence Rule 609(a) (providing that 

evidence of a witness’s prior conviction for a crime of dishonesty is admissible 

to impeach the witness); Johnson v. State, 671 N.E.2d 1203, 1206 n.3 (Ind. Ct. 

App. 1996) (holding that defendant’s prior conviction for criminal conversion 

was admissible for impeachment purposes under Evidence Rule 609(a)), trans. 

denied; Winegar v. State, 455 N.E.2d 398, 401 (Ind. Ct. App. 1983) (holding that 

conversion, as a lesser included offense of theft, is a crime of dishonesty, and 

thus, a conviction for conversion may be admissible for impeachment 

purposes).

[19] Additionally, had he testified, Chastain’s prior convictions for battery may have 

been admissible to rebut his claim of self-defense, thereby weakening his case. 

3 See Hernandez v. State, 785 N.E.2d 294, 303 (Ind. Ct. App. 2003) (noting that we will presume that the jury 

will follow the court’s admonitions to consider evidence for a particular purpose), trans. denied. 
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See Poindexter v. State, 664 N.E.2d 398, 400–01 (Ind. Ct. App. 1996) (holding 

that trial court did not err in admitting, under intent exception to Evidence Rule

404(b), evidence of defendant’s prior batteries to rebut her claim of selfdefense). 

[20] For similar reasons, we cannot say that Chastain established that he was 

prejudiced by his failure to testify. The jury heard evidence that Beegle had a 

knife during the encounter. Had Chastain testified, his own self-serving 

testimony would likely have been impeached by his prior convictions. His 

testimony would not have been corroborated by the neutral eyewitnesses who 

did not see Beegle in possession of a knife. Thus, Chastain has not established 

that, had he testified, the outcome of the trial would have been any different. 

[21] In short, the post-conviction court did not clearly err in determining that 

Chastain was not denied the effective assistance of counsel based on his trial 

counsel’s failure to call Chastain as a witness.4

II. Waiver of the Right to Testify

[22] Chastain also argues that the post-conviction court failed to address his claim 

that there was no proof that he knowingly and intelligently waived his right to 

testify on his own behalf. In addressing this argument, we first note that 

Chastain did not present any claim regarding the knowing and intelligent 

4 We also reject Chastain’s argument that his trial counsel was ineffective for failing to prepare him to testify. 

Chastain fails to explain what advantage such preparation would have provided, especially in light of his 

prior convictions that would have impeached his testimony. And given that Chastain did not testify, we 

cannot fault trial counsel for failing to prepare for something that did not happen. 
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waiver of his right to testify in his post-conviction petition. See Appellant’s App. 

pp. 11–13.5 The failure to present an argument in the petition waives the right to 

raise the argument on appeal. Koons v. State, 771 N.E.2d 685, 691 (Ind. Ct. App.

2002), trans. denied. Chastain did not present a claim that he did not knowingly 

or intentionally waive his right to testify until the conclusion of the postconviction hearing, see Post-Conviction Tr. p. 81, and in his post-hearing 

memorandum. See Appellant’s App. pp. 42–45, 53. We therefore conclude that 

Chastain has waived any argument regarding his waiver of his right to testify. 

[23] Furthermore, Chastain frames his argument as whether the post-conviction 

court “failed to address the issue of whether Mr. Chastain’s waiver of his 

Constitutionally protected right to testify on his own behalf was done 

knowingly, voluntarily and intelligently.” Appellant’s Br. at 27. This appears to 

be a free-standing claim of error, which is generally unavailable in postconviction proceedings. Timberlake v. State, 753 N.E.2d 591, 597–98 (Ind. 2001). 

That is, if an issue was known and available, but not raised on direct appeal, it 

is waived; if it was raised on direct appeal, but decided adversely, it is res 

judicata. Lee v. State, 91 N.E.3d 978, 983 (Ind. Ct. App. 2017), trans. denied

(citing Timberlake, 753 N.E.2d at 597–98). Even allegations of fundamental 

5 The grounds for relief listed in Chastain’s petition were: (1) ineffective assistance of trial counsel by failing 

to call Chastain as a witness; (2) ineffective assistance of trial counsel for failing to adequately consult 

Chastain regarding him testifying; (3) ineffective assistance of trial counsel for failing to properly question 

witness Tracy Wilmore and failing to call as a witness Matt Wilmore; (4) ineffective assistance of trial 

counsel for failing to properly question witness Elizabeth Beegle; (5) ineffective assistance of trial counsel for 

failing to properly question witness Destinee Jenkins; (6) the policies of the prosecuting attorney’s office 

violated Chastain’s due process rights; and (7) ineffective assistance of trial counsel for failing to sign a 

discovery agreement with the prosecutor’s office. 
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error are improper as free-standing claims of error in post-conviction 

proceedings. Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002). “In postconviction 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.

[24] Here, there is no indication that Chastain’s argument that he did not knowingly 

or intelligently waive his right to testify was unknown or unavailable to him on 

direct appeal. Therefore, it cannot be presented as a free-standing claim of error 

in his petition for post-conviction relief.

[25] However, Chastain also appears to couch his argument regarding the waiver of 

his right to testify in terms of the ineffective assistance of trial counsel. See

Appellant’s Br. at 30 (discussing prejudice prong of Strickland test). Out of an

abundance of caution, and our preference to decide issues on the merits, we 

address Chastain’s argument in the context of a claim of ineffective assistance 

of trial counsel. 

[26] As we explained in Vanzandt v. State, 730 N.E.2d 721, 723 (Ind. Ct. App. 2000):

The right to testify on one’s own behalf in a criminal proceeding 

has been described by the United States Supreme Court as “a 

right implicit in the Constitution.” United States v. Dunnigan, 507 

U.S. 87, 96 (1993). See also Baxter v. State, 522 N.E.2d 362, 368 

(Ind. 1988) (“In light of all of these cases, we accept Baxter’s 

claim that his right to testify is constitutionally based.”). 

However, a trial court judge has no affirmative duty to insure 
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that a defendant represented by counsel knowingly and 

intelligently waived his right to testify at trial. Correll v. State, 639 

N.E.2d 677, 681-82 (Ind. Ct. App. 1994). A trial court is entitled 

to presume that a lawyer and his client have discussed the 

possibility of testifying. Phillips v. State, 673 N.E.2d 1200, 1202 

(Ind. 1996).

[27] Chastain argues that he did not knowingly and intelligently waive his right to 

testify because his trial counsel did not adequately consult with him or prepare 

him to testify. This argument is belied by the evidence in the record. First, 

Chastain admitted that his trial counsel informed him that he had a right to 

testify. He also testified that he and his trial counsel discussed the possibility of 

his testifying on his own behalf. The trial transcript also shows that Chastain’s 

trial counsel was granted an extended recess to discuss with Chastain whether 

he would testify, and when the trial resumed, Chastain did not testify. From 

this, the post-conviction court could reasonably conclude that Chastain 

knowingly and intelligently waived his right to testify. The post-conviction 

court was under no obligation to credit Chastain’s self-serving testimony to the 

contrary. Accordingly, the post-conviction court did not err by failing to 

conclude that Chastain did not knowingly and intelligently waive his right to 

testify. 

Conclusion

[28] The post-conviction court did not clearly err in concluding that Chastain failed 

to meet his burden of proving that he was denied the ineffective assistance of 

trial counsel or that he did not knowingly waive his right to testify. 
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[29] Affirmed. 

May, J., and Brown, J., concur.