ATTORNEYS FOR APPELLANT

David C. Stebbins

Columbus, Ohio

Joe Keith Lewis

Marion, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett

Attorney General of Indiana

James D. Dimitri

Deputy Attorney General

Indianapolis, Indiana

	IN THE

	SUPREME COURT OF INDIANA

							)

DAVID LEON WOODS,				)

							)

	Appellant (Petitioner below),		)	Supreme Court

							)	Cause No. 06S00-9403-PD-224

	v.						)

							)		

STATE OF INDIANA,				)	

							)

	Appellee (Respondent below).		) 

							)

	APPEAL FROM THE BOONE SUPERIOR COURT

	The Honorable David A. Ault, Special Judge

	Cause No. S-7007

	ON DIRECT APPEAL FROM DENIAL OF POSTCONVICTION RELIEF

November 23, 1998

BOEHM, Justice.

	David Leon Woods was convicted of murder and robbery and was sentenced to death.  He appeals the denial of his petition for postconviction relief challenging the effectiveness of his trial counsel.  This case presents a frequently encountered issue.  The trial court found

that the claim of ineffective representation was waived for failure to raise the issue on direct

appeal.  Woods contends that the trial record was not sufficiently developed to assess the

merits of this claim on direct appeal.  In brief, although ineffective assistance occasionally

lends itself to resolution on direct appeal, we hold that a Sixth Amendment claim of

ineffective assistance of trial counsel may be presented for the first time in a petition for

postconviction relief.  However, if ineffective assistance of trial counsel is raised on direct

appeal, it will be foreclosed in postconviction proceedings.  Turning to the merits of Woods’

claim, we affirm the trial court’s denial of relief.

	Background and Standard of Review

	In  the early morning hours of April 7, 1984, Woods went to seventy-seven-year-old Juan Placentia’s apartment in Garrett, Indiana and stabbed him to death.  Woods and

accomplice Greg Sloan then took Placentia’s television and later sold it.  The full account

of these crimes is outlined in Woods’ direct appeal affirming the convictions and sentence. 

Woods v. State, 547 N.E.2d 772 (Ind. 1989), aff’d on reh’g, 557 N.E.2d 1325 (Ind. 1990).  Because Woods appeals from a negative judgment, this Court will reverse the denial of postconviction relief only if the evidence as a whole leads unerringly and unmistakably to

a decision opposite that reached by the postconviction court.  Spranger v. State, 650 N.E.2d 1117, 1119-20 (Ind. 1995).  In this review, findings of fact are accepted unless “clearly

erroneous,” Ind. Trial Rule 52(A), but no deference is accorded conclusions of law.  State v. Van Cleave, 674 N.E.2d 1293, 1295-96 (Ind. 1996), reh’g granted in part, 681 N.E.2d 181 (Ind. 1997), cert. denied, __ U.S. ___, 118 S. Ct. 1060, 140 L. Ed. 2d 121 (1998).  The postconviction court is the sole judge of the weight of the evidence and the credibility of

witnesses.  See, e.g., Stewart v. State, 517 N.E.2d 1230, 1231 (Ind. 1988).  

  	I.  Woods’ Principal Ineffectiveness Claim

	Four months before trial began, Woods’ court-appointed attorney, Charles Rhetts Jr., was allowed to withdraw from the representation due to a possible conflict of interest.  Allen

Wharry and Douglas Johnston replaced Rhetts and defended Woods at trial.  As explained in Part VI below, Woods now argues that Rhetts’ conflict of interest and failure to disclose

the details of the conflict to Woods or his new lawyers tainted the entire trial.  After Woods was convicted, Wharry filed a motion to correct error.  Under the law at that time, this

motion controlled the issues available on direct appeal.  Ward v. State, 519 N.E.2d 561, 562 (Ind. 1988).  No claim of ineffective assistance was raised in the motion.  New counsel was

then appointed to represent Woods on direct appeal. 

	The postconviction court found that any claim of ineffective assistance based on the conflict was waived for failure to present the issue on direct appeal.  In this appeal, the State

contends that even if ineffective assistance was not waived, the claim fails on its merits. 

Woods maintains that the claim is available on collateral review because the facts supporting

the claim -- the details of the conflict -- were not apparent from the trial record on direct

appeal.  For this reason, he contends that successor trial counsel Wharry cannot reasonably have been expected to present the issue in the motion to correct error so as to preserve it for direct appeal.1  Woods also raises other grounds to support his claim of ineffective assistance.   	

	II.  The Varying Forms of Ineffective Assistance Claims

	Woods’ claim is based solely on the Sixth Amendment right to counsel.2  Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) established the two- part test of incompetent performance and prejudice for adjudicating challenges to the

effectiveness of trial representation.  The competence prong ultimately presents a single

overarching issue of whether counsel’s performance, as a whole, fell below “an objective

standard of reasonableness” based on “prevailing professional norms.”  Id. at 685.  “Isolated poor strategy, bad tactics, a mistake, carelessness or inexperience do not necessarily amount

to ineffective counsel unless, taken as a whole, the defense was inadequate.”  Davis v. State, 675 N.E.2d 1097, 1100 (Ind. 1996) (citation and internal quotation marks omitted).  Nearly

fifteen years of practice under Strickland demonstrates that “ineffective assistance of counsel” embraces a number of quite different issues.  Evaluating the assertion that

availability of ineffective assistance in postconviction proceedings should be driven by the state of the record on direct appeal requires an analysis of the diverse nature of these

contentions.       

	For purposes of the question presented today, issues supporting an ineffectiveness

claim can be separated into three broad categories.  Some can be evaluated on the face of the

trial record (“record errors”).  Examples are failure to tender or object to an instruction or

failure to object to inadmissible evidence where the failure is outside the range of reasonable

professional judgment and its prejudicial effect is clear.  In those situations, there may be no

need for delay or the taking of extrinsic evidence on the competence prong of Strickland because the claim may be resolved from the face of the trial record.3  If so, the interest of prompt resolution of the matter favors permitting it to be raised on direct appeal.  For

example, in Pemberton v. State, 560 N.E.2d 524 (Ind. 1990), trial counsel aggressively litigated a motion to suppress that challenged the admissibility of a suggestive “show-up”

identification, but inexplicably failed to object at trial to preserve the issue for appeal.  In

holding that this amounted to deficient performance, this Court reasoned that “[t]here is no

conceivable rational basis upon which to predicate a decision not to object.  This can in no

way be characterized as a strategical or tactical decision gone awry.”  Id. at 527.  See also Allen v. State, 686 N.E.2d 760, 778 (Ind. 1997) (distinguishing Pemberton on the ground that “counsel’s decision to file a motion in limine instead of a motion to suppress could well have

rested on strategic reasons”), petition for cert. filed, __ U.S.L.W. ___ (U.S. Aug. 28, 1998) (No. 98-5855).  Because the omission was found to be inexcusable and prejudicial as a

matter of law, the claim was resolvable on direct appeal without extrinsic evidence.    

	Far more common, however, are issues that are not visible at all on the trial record,

or that require additional record development to assess either the competence of the attorney

or the prejudice resulting from the claimed error.  These contentions may require an

investigation of facts far beyond the record, and sometimes beyond the knowledge of either

trial or appellate counsel, to establish substandard counsel performance (“extra-record

errors”).  Typical examples may be failure to pursue a factual defense of alibi or insanity or,

as in this case, an undisclosed conflict of interest.  

	Finally, much confusion is generated by issues that are based on an action taken on

the record, but whose evaluation requires a showing to rebut the presumption of counsel

competence.  An example of such a “hybrid” contention is an act or omission on the record

that is perhaps within the range of acceptable tactical choices counsel might have made, but

in the particular instance is claimed to be made due to unacceptable ignorance of the law or

some other egregious failure rising to the level of deficient attorney performance. 

Kimmelman v. Morrison, 477 U.S. 365, 383-87, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986).4  The requirement of a showing of the allegedly unacceptable basis for the error derives from

the presumption of attorney competence.5  Because we assume competence, if an action or omission is in the range of reasonable attorney behavior, it can support a claim of ineffective

assistance only if that presumption is overcome by specific evidence as to the performance

of the particular lawyer.  Where no evidence of deficient representation is presented,

therefore, the claim fails.6  The reasoning of trial counsel is sometimes apparent from the trial record.7  However, in assessing hybrid contentions it is often necessary for an additional record to be developed to show the reason for an act or omission that appears in the trial

record.8  

	For the reasons explained below, we conclude that precisely because it can take

myriad forms, ineffective assistance of trial counsel “eludes once-and-for-all disposition.” 

Guinan v. United States, 6 F.3d 468, 473 (7th Cir. 1993) (Easterbrook, J., concurring).9  Nonetheless, we are dealing with a subject that has the potential for both forfeiture of

important constitutional protections and also enormous demands on counsel and the

judiciary.  Accordingly, the always important objectives of clarity and workability of rules

of law take on even greater significance.  

	III.  Indiana Precedent on Waiver of Ineffective Assistance Claims

	Despite the frequency with which challenges to the effectiveness of trial representation appear in postconviction petitions in this State, this Court has not conclusively

resolved whether waiver of this claim (1) always arises from a failure to raise it on direct appeal, or (2) never does, or (3) turns on whether there was or might have been a need for

extrinsic evidence to assess either attorney competence or prejudice.  It is well established as a general proposition that issues that were or could have been raised on direct appeal are

not available in postconviction proceedings and that postconviction is not a “super appeal.” 

Weatherford v. State, 619 N.E.2d 915, 916-17 (Ind. 1993); Ind. Post-Conviction Rule 1(1)(b) (providing that postconviction is “not a substitute for a direct appeal”).  Rather, postconviction review supplements direct review by allowing the petitioner “to raise issues

not known at the time of the original trial and appeal or for some reason not available to the

defendant at that time.”  Schiro v. State, 533 N.E.2d 1201, 1204 (Ind. 1989).  As this Court cautioned in one of the first cases to flesh out the postconviction rules: “It was not our intent . . . to provide a means whereby one convicted could repeatedly re-litigate claims of

improper conviction, or could . . . raise an untimely challenge directed at some aspect of the

proceedings against him.”  Langley v. State, 256 Ind. 199, 203, 267 N.E.2d 538, 540 (1971).  	Consistent with the residual nature of postconviction proceedings, we have held that

failure to raise a “record” ineffectiveness claim results in waiver of the issue.  For example,

in Johnson v. State, 502 N.E.2d 90 (Ind. 1986), in an effort to show that the defendant was credible because he could admit past mistakes, trial counsel questioned the defendant on direct examination about problems in his childhood and delinquent behavior.  The defendant

contended in postconviction that this trial tactic prejudiced his assertion of self-defense by

damaging his credibility.  This Court held that the issue of trial counsel’s effectiveness was

waived because the single basis asserted was “clearly known and available” on direct appeal.  Id. at 91.  Accord Hall v. State, 646 N.E.2d 379 (Ind. Ct. App. 1995) (claim of trial ineffectiveness for failure to object to allegedly defective jury instruction was waived for

failure to present the issue on direct appeal).  These cases, although not framing the issue in terms of what was apparent from the trial record, support the proposition that a single matter

knowable from the trial record is waived if not presented on direct appeal.  Cf. Daniels v. State, 680 N.E.2d 829, 835 n.10 (Ind. 1997) (issues pertaining to trial or appellate counsel’s effectiveness could not be litigated in second petition for postconviction relief because,

among other reasons, the alleged errors were apparent on the record from the time of trial). 

	Two cases are closer to presenting the issue of whether any need for record development allows an ineffectiveness claim to be presented for the first time in collateral

proceedings.  Hollonquest v. State, 432 N.E.2d 37 (Ind. 1982) and Williams v. State, 464 N.E.2d 893 (Ind. 1984) both involved an ineffective assistance claim based on trial counsel’s

failure to call an alibi witness.  Like most failures to investigate, establishing this ground for

ineffective assistance would require going beyond the trial record to show what the

investigation, if undertaken, would have produced.  This is necessary because success on the

prejudice prong of an ineffectiveness claim requires a showing of a reasonable probability

of affecting the result.  State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997), cert. denied, ___ U.S. _____, 118 S. Ct. 1528, 140 L. Ed. 2d 678 (1998).  Hollonquest and Williams held that the claim was waived, but for several reasons neither case controls the issue presented today. 

First, Hollonquest was decided before Strickland established the two-prong test for ineffective assistance, and Williams, though decided one month after Strickland, did not consider the effect of Strickland.  Second, and more importantly, Hollonquest and Williams were decided before courts began giving much detailed consideration to the complexity of ineffectiveness claims.  Both simply applied general waiver principles to the

facts in a single paragraph.  Neither case discussed the potential need for an evidentiary

hearing to assess either the reasons for the alleged error or the likelihood that it affected the

result.10    	

	We have noted in other contexts that an ineffective assistance of counsel claim may

often require evidentiary development.  For example, Hough v. State, 690 N.E.2d 267 (Ind. 1997), petition for cert. filed, __ U.S.L.W. ____ (U.S. July 23, 1998) (No. 98-5826), recently observed that a grant of summary judgment on the issue of trial counsel’s effectiveness

without an evidentiary hearing is “a bit unusual” because “[t]ypically . . . an ineffective

assistance of counsel claim revolves around the unique facts of that case and many of those

facts may exist outside of the record.”  Id. at 273.  Indeed, some of our decisions suggest, without examining the question in any detail, that any challenge to the effectiveness of trial

counsel’s representation may be raised for the first time in postconviction proceedings.  Lane v. State, 521 N.E.2d 947 (Ind. 1988) (ineffectiveness due to trial counsel’s failure to call an alibi witness would have been available in postconviction, but defendant could not raise issue for first time on appeal through guise of ineffective assistance of postconviction counsel). 

Others could be read to imply the contrary.  Resnover v. State, 547 N.E.2d 814, 816 (Ind. 1989) (“Ineffective assistance of counsel as an issue is known and available to a party on his

direct appeal . . . .”); Metcalf v. State, 451 N.E.2d 321 (Ind. 1983) (holding several assertions of alleged ineffectiveness to be waived without distinguishing between record-based

contentions and those requiring evidentiary development).  

	Most recent Court of Appeals cases have held that ineffective assistance of trial

counsel is generally known and available on direct appeal so long as the defendant is

represented by different counsel on appeal.  See, e.g., Haynes v. State, 695 N.E.2d 148, 153 (Ind. Ct. App. 1998); Moore v. State, 649 N.E.2d 686, 690 n.2 (Ind. Ct. App. 1995).  At least one intermediate appellate decision distinguished record-based assertions of ineffectiveness

from those requiring extrinsic evidence and held that the latter may be raised for the first

time in postconviction proceedings.  Wilson v. State, 565 N.E.2d 761 (Ind. Ct. App. 1990).  Finally, this Court recently held that if a claim of ineffectiveness is raised on direct appeal,

it precludes raising in a postconviction proceeding additional issues to support a claim of

ineffective assistance.  Sawyer v. State, 679 N.E.2d 1328 (Ind. 1997); Bieghler v. State, 690 N.E.2d 188, 200-01 (Ind. 1997) (citing Sawyer).  	

	In sum, the availability of ineffective assistance of trial counsel in postconviction

proceedings where it was not asserted on direct appeal is unresolved as a matter of this

Court’s precedent.  

	IV.  Alternative Approaches to Procedural Default

	Woods suggests we resolve this dilemma by following the logic of several Seventh

Circuit decisions holding that an ineffective assistance claim that cannot be fully framed or

evaluated without extrinsic evidence may be presented for the first time in a petition for a

writ of habeas corpus.  Guinan v. United States, 6 F.3d 468 (7th Cir. 1993); United States v. Taglia, 922 F.2d 413 (7th Cir. 1991).  The State does not dispute that the record on direct appeal did not reveal the details of Rhetts’ conflict, but argues that it makes no difference for

purposes of waiver.  The State maintains that if we adopt the Seventh Circuit standard, the

exception will swallow the rule because the petitioner will be able to avoid procedural

default simply by pointing to “some evidence outside the record that he could claim was relevant to an allegation of ineffectiveness of trial counsel.”  The State argues that the proper

remedy where extrinsic evidence is needed to evaluate the merits of an ineffectiveness claim

is to permit appellate counsel to develop the additional facts in a hearing on a motion to

correct error.  See generally Ind. Crim. Rule 16; Ind. Trial Rule 59.  Neither Woods nor the State argues for the view, followed in many state11 and federal courts,12 that ineffective assistance of trial counsel, irrespective of the nature of the contentions, can (or even must)

be postponed until collateral review.  Nonetheless, for the reasons set forth below, we conclude that the most satisfactory resolution of a variety of competing considerations is that

ineffective assistance may be raised on direct appeal, but if it is not, it is available in

postconviction proceedings irrespective of the nature of the issues claimed to support the

competence or prejudice prongs.	

	A.  Use it or lose it

	The State maintains that the issue of trial counsel’s effectiveness is known on direct

appeal and therefore waived if not presented.  This view would not differentiate at all among the various types of contentions that may support a claim of ineffective assistance of counsel. 

There appear to be only a few states and no federal circuits adhering to that approach, cf. note 15 infra, and with good reason.  As tribunals of last (or at least not first) resort, appellate courts review the work of other courts as reflected in the record.  We agree with the Tenth

Circuit that in the context of assessing ineffectiveness claims, typically a “factual record

must be developed in and addressed by the [trial] court in the first instance for effective

review.”  United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) (footnote omitted).  Where the record is incomplete, the reviewing court is poorly positioned to address

the merits; nor does it have any reasonable ability to engage in factfinding or take new

evidence.  The State’s approach might be more palatable if ineffective assistance were

commonly easily resolved based on the trial record, but as already noted it often is not.  Nor

would a blanket ban on raising ineffective assistance of counsel in postconviction

proceedings be fair to the defendant.  Because of the presumption of competence, extrinsic

evidence is needed in many cases: 

	When the only record on which a claim of ineffective assistance is based is the trial 

	record, every indulgence will be given to the possibility that a seeming lapse or error 

	by defense counsel was in fact a tactical move, flawed only in hindsight.  It is no 

	surprise that such claims almost always fail.  

Taglia, 922 F.2d at 417-18.  In addition, the rule that the State proposes appears to leave no place for ineffectiveness claims, such as counsel’s undisclosed conflict of interest, not

reasonably knowable until after direct appeal.    

	Even under a “use it or lose it” approach, the question is not whether an evidentiary hearing will be held in some cases, but rather what procedure is available to develop the

record.  We disagree with the State that allowing appellate counsel to supplement the record

in a hearing on a motion to correct error is sufficient where an appellate court concludes that

additional evidence is needed.  First, this implicitly requires appellate counsel to investigate

facts outside the record in a frequently futile effort to unearth all possible ineffective

assistance claims for presentation on direct appeal.  As elaborated in Part V below, expecting

appellate lawyers to look outside the record for error is unreasonable in light of the realities

of appellate practice.  Direct appeal counsel should not be forced to become a second trial

counsel.  Appellate lawyers may have neither the skills nor the resources nor the time to

investigate extra-record claims, much less to present them coherently and persuasively to the

trial court.  Requiring any claim to be raised on direct appeal under pain of waiver forces

upon appellate counsel “a nasty dilemma: if he seeks reversal on the basis of ineffective

assistance of trial counsel, the judgment is almost certain to be affirmed, barring the raising

of the issue in collateral proceedings; if he does not, the government may contend in any

collateral proceeding that he should have.”  Guinan, 6 F.3d at 472. 

  	Second, even if extra-record investigation were a fair burden to place on appellate counsel, we see little point in forcing the claim to be squeezed into the Procrustean bed of

a motion to correct error.  That procedure has never been viewed as a substitute for

postconviction relief.  Langley v. State, 256 Ind. 199, 204, 267 N.E.2d 538, 541 (1971) (motion to correct error provides “an expeditious means by which a trial judge may have an

opportunity to first correct his own errors while the circumstances surrounding the alleged error are still fresh in his memory”).  Moreover, some forms of ineffective assistance do not

fit within any recognized ground for either a Trial Rule 59 or Trial Rule 60 motion.  Both

rules contemplate either “error” or new evidence that “with reasonable diligence, could not

have been discovered and produced at trial.”  Ind. Trial Rule 59(A)(1).  The thrust of an

ineffective assistance claim is often neither of these, but rather that trial counsel failed to

present relevant evidence.  To be sure, such a claim could be presented as any “other” ground

under Rule 60(B)(8) (if it is within one year), but there is little reason to prefer that mode

over a postconviction proceeding in the same court that can be conducted by counsel

equipped to present it independent of any errors alleged on direct appeal.13  Even if these procedures were a good fit for review of ineffective assistance claims, any attempt to

adjudicate the adequacy of trial representation in a motion to correct error creates yet another

round of litigation -- with further expense and delay -- between the trial and postconviction

proceeding. 

	A “use it or lose it” rule has other undesirable consequences.  A state-court finding of procedural default generally precludes review of the merits of the claim in federal

collateral proceedings.14  Thus if an ineffectiveness claim is waived if not presented on direct appeal, it may never be addressed on the merits by any court.  The narrowing of federal habeas review since the 1970s reflects increasing deference to state courts in adjudication

of federal constitutional claims arising out of state criminal trials: 

	The States possess primary authority for defining and enforcing the criminal law.  In

criminal trials they also hold the initial responsibility of vindicating constitutional

rights.  Federal intrusions into state criminal trials frustrate both the States’ sovereign

power to punish offenders and their good-faith attempts to honor constitutional rights.

Engle v. Isaac, 456 U.S. 107, 128, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982) (citation omitted).  Hence as a matter of procedural fairness a finding of waiver by an Indiana court

must be predicated on a meaningful opportunity to litigate the claim.  Alternatively, if an

ineffectiveness claim found to be waived in our courts is nonetheless addressed on the merits

in federal court, this State will have foregone the opportunity to correct the possible error

before federal review of our judicial process.  One goal of our postconviction rules is to

minimize the level of federal constitutional error before federal review of the conviction:

“[O]ne of the functions of our post conviction remedy rules is to preserve what sanctity

remains to this [S]tate’s disposition of a criminal charge by allowing a convicted criminal

defendant ample opportunity to present claims for relief in the courts of this state before

resort must be had to the federal courts.”  Langley, 256 Ind. at 204, 267 N.E.2d at 541.  An unnecessarily or unfairly restrictive waiver rule would frustrate this purpose.15 	

	The suggestion has been made that unless ineffectiveness is required to be raised on

direct appeal, an excessive volume of postconviction evidentiary hearings will be required. 

However, if a hearing is necessary, it is not a significantly different burden on trial courts to

consider the allegations of a postconviction claim for relief as opposed to the alternative of

mid-appeal hearings.  Moreover, not every claim requires a second hearing.  Even if an

ineffectiveness claim is preserved for postconviction review, it may be resolvable by a

postconviction court without a hearing for failure to allege facts -- either in the current record

or to be proved in an evidentiary hearing -- establishing attorney incompetence.  And because

a postconviction claim may be disposed of by summary judgment, the procedures for

piercing pleadings are available to resolve the matter without a hearing if there is no genuine issue of material fact.  Ind. Post-Conviction Rule 1(4)(g); Daniels v. State, 680 N.E.2d 829, 831-32 (Ind. 1997).

	B.  Defer all or only some claims 

	Some courts resolve these varying considerations by holding that a claim of ineffective assistance of trial counsel is waived if withheld until the collateral stage unless

the petitioner has a “valid reason” for the postponement.  Under this view, good cause for

waiting can be shown by any one of either (1) trial counsel was also appellate counsel; (2)

the claim could not be developed without new facts; or (3) at the time of the direct appeal,

it reasonably appeared that new evidence would be needed, even though it has since become

clear that the trial record was adequate grounds for judging the merits of the claim.  Guinan, 6 F.3d at 472.16  

	We have recognized the first of these.  Spranger v. State, 650 N.E.2d 1117, 1121 (Ind. 1995); cf. Matter of Sexson, 666 N.E.2d 402 (Ind. 1996) (trial counsel violated Indiana Rule of Professional Conduct 1.7(b) by arguing own ineffectiveness on direct appeal).  The second

and third grounds of this approach are theoretically sound, but ultimately in our view

generate more complexity and unpredictability than is desirable.  In application this approach

raises the thorny problem of identifying the ineffectiveness claims that are available on direct

review.  There are bound to be complications and uncertainty in determining whether extrinsic evidence reasonably appeared to be needed at the time of direct appeal to assess the

merits of the claim.  The postconviction court will have to undertake the difficult task of

seeing the case through appellate counsel’s eyes, possibly long after the direct appeal was

decided.  The potential exists for efforts of both counsel and courts to be wasted on both

direct appeal and collateral review in satellite litigation over the application of  a complicated

waiver standard.17  Permitting all claims of ineffectiveness to be raised in postconviction proceedings if ineffectiveness was not raised on direct appeal offers a bright-line rule that

is understandable.  It is preferable over requiring ineffectiveness to be raised on direct appeal

because the track record for ineffectiveness claims demonstrates that most require additional

evidence to assess their merits.  Cf. Guinan, 6 F.3d at 473 (Easterbrook, J., concurring) (“No surprise, then, that my colleagues have been unable to find a single case in which this circuit

reversed a conviction on direct appeal because of deficient performance by trial counsel.”). 

Finally, and more importantly, assessment of a claim of ineffective representation requires

consideration of the overall performance of counsel and a reasonable probability that the

alleged error affected the outcome.  State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997), cert. denied, ___ U.S. ___, 118 S. Ct. 1528, 140 L. Ed. 2d 678 (1998).  Because these factors rarely lend themselves to resolution in isolation, the effectiveness of the representation should be resolved in a single proceeding.18

	For the reasons outlined, a postconviction hearing is normally the preferred forum to

adjudicate an ineffectiveness claim.  We nonetheless agree that potential for administrative

inconvenience does not always outweigh the costs of putting off until tomorrow what can be

done today: “If there is no reason for delay in presenting a claim, the delay should not be

countenanced, for there is a considerable social interest in the finality of criminal

proceedings.”  Taglia, 922 F.2d at 418.  If we are dealing with an improperly incarcerated defendant, the cause of justice is plainly better served by making that determination as soon

as possible.  The same is true even if a retrial is required.  Resolving record-based

ineffectiveness claims on direct review also has some doctrinal appeal because it is more

consistent with the residual purpose of postconviction proceedings.  Langley, 256 Ind. at 204-05, 267 N.E.2d at 541 (“[T]he permissible scope of review on direct appeal is well

defined and broader than that permitted by collateral attack through post conviction relief.”). 

These considerations can be largely met under a procedure that allows a defendant to

suspend the direct appeal to pursue an immediate petition for postconviction relief.  Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977); see also Hatton v. State, 626 N.E.2d 442 (Ind. 1993) (reiterating vitality of Davis procedure).  This should cover the exceptional case in which the defendant prefers to adjudicate a claim of ineffective assistance before direct

appeal remedies have been exhausted.  Because of the Davis procedure, the direct appeal is not necessarily an obstacle to speedy adjudication of the adequacy of the representation, as

recent cases in which the procedure was invoked for that purpose demonstrate.  See Coleman v. State, 694 N.E.2d 269 (Ind. 1998); Brown v. State, 691 N.E.2d 438 (Ind. 1998).  Although not to be used as a routine matter in adjudicating the issue of trial counsel’s effectiveness,19 a Davis request may be appropriate “where the claim asserted arguably requires a certain level of fact finding not suitable for an appellate court.”  Lee v. State, 694 N.E.2d 719, 721 n.6 (Ind. 1998), petition for cert. filed, __ U.S.L.W. ____ (U.S. Sept. 24, 1998) (No. 98- 6205). 	

	C.  All or nothing

	As already noted, some grounds supporting an assertion of inadequate representation

will not be reasonably knowable, much less fully factually developed, until after direct

appeal.  For the reasons given, the doors of postconviction must be open to adjudicate

ineffective assistance if it is not raised on direct appeal.  The defendant must decide the

forum for adjudication of the issue -- direct appeal or collateral review.  The specific

contentions supporting the claim, however, may not be divided between the two proceedings. 

The administrative disadvantages to an approach that would require the defendant essentially to split an ineffectiveness claim between record-based and other contentions also apply to

voluntary bifurcation.  We note again that we recently held that ineffective assistance of trial

counsel is not available in postconviction if the direct appeal raises any claim of deprivation

of Sixth Amendment right to counsel.  Sawyer v. State, 679 N.E.2d 1328 (Ind. 1997); Bieghler v. State, 690 N.E.2d 188, 200-01 (Ind. 1997) (citing Sawyer); but cf. Galloway, 56 F.3d at 1242 (holding that presentation of ineffectiveness claim on direct appeal did not

foreclose assertion in federal habeas proceedings of additional grounds for finding

inadequate representation).  As a practical matter, this rule will likely deter all but the most

confident appellants from asserting any claim of ineffectiveness on direct appeal.  It will

certainly deter some.  Nonetheless, the concerns for prompt resolution of claims lead us to

permit ineffective assistance to be raised within or without the procedure available pursuant

to Davis.  

	In sum, we hold that a Sixth Amendment claim of ineffective assistance of trial

counsel, if not raised on direct appeal, may be presented in postconviction proceedings. 

However, if ineffective assistance of trial counsel is raised on direct appeal by a Davis petition or otherwise, the issue will be foreclosed from collateral review.  

			V.  Role of Ineffective Assistance of Appellate Counsel

	Some have suggested that waiver of a trial ineffectiveness claim is inconsequential 

(and the foregoing discussion is thus much ado about nothing) because there always remains

a possible claim of ineffective assistance of appellate counsel.  The argument goes that

because the same claim may be repackaged as a challenge to appellate counsel’s failure to raise trial counsel’s effectiveness on direct appeal, the substance of the claim is addressed

in either event.20  However, for at least two reasons, the right to challenge appellate counsel’s performance is not equivalent to a direct challenge to trial counsel’s representation.  

	First, ineffective assistance of appellate counsel requires the petitioner to overcome

the double presumption of attorney competence at both trial and appellate levels.  This is no

mere quibble.  Appellate lawyers must make difficult judgment calls in narrowing a broad

range of possible claims to a select few that are thought to have the best chance of success. 

In this winnowing process, possibly valid claims may be eliminated due to page limits, time

limits on oral argument, or the strategic judgment that the perceived strongest contentions

not be diluted.  Accordingly, there are situations in which a claim of ineffective assistance

of trial counsel will succeed on the merits but fail if forced to overcome the presumption of

effective appellate counsel.  See Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983) (United States Constitution does not require appellate counsel to argue all

nonfrivolous claims; appellate counsel noted possible claim of ineffective assistance of trial

counsel but declined to raise the issue).  Indeed, we recently emphasized that reviewing

courts “should be particularly deferential to counsel’s strategic decision to exclude certain issues in favor of others” and “particularly sensitive to the need for separating the wheat from

the chaff in appellate advocacy[.]”  Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997).  Other courts have made similar observations.  See, e.g., Page v. United States, 884 F.2d 300, 302 (7th Cir. 1989) (“The threshold question is not whether trial counsel was inadequate but

whether trial counsel was so obviously inadequate that appellate counsel had to present that question to render adequate assistance.”).21

     	Second, in elaborating the right to effective assistance of appellate counsel, the Supreme Court of the United States has never suggested that counsel must look outside the

record for possible claims of error for the performance to be constitutionally effective.22  To the contrary, courts adjudicating appellate ineffectiveness claims have rejected imposing this

burden on appellate counsel.  See, e.g., Kitt v. Clarke, 931 F.2d 1246, 1249-50 (8th Cir. 1991) (“Given that the jury separation issue was not preserved in the record, appellate

counsel’s failure to raise the issue cannot be considered deficient performance.”); Wilson v. State, 565 N.E.2d 761, 764 (Ind. Ct. App. 1990) (where appellate counsel did not investigate trial counsel’s effectiveness other than by thoroughly reviewing the record, appellate counsel

acted consistent with “accepted practice then prevailing”).  This Court has also resisted that

view.  See Bieghler, 690 N.E.2d at 199-200 (appellate counsel’s failure to raise issues not apparent on the face of the record, in light of overall performance, was not grounds for

reversal).  Cf. Gray v. Greer, 800 F.2d 644, 647 (7th Cir. 1986) (“When a claim of ineffective assistance of counsel is based on failure to raise issues on appeal, we note it is

the exceptional case that could not be resolved on an examination of the record alone.”). 

Because there is no constitutional requirement for appellate counsel to search outside the

record for error, an ineffective assistance of appellate counsel claim that is in substance a

trial counsel claim requiring extrinsic evidence may be dead on arrival.  

	In short, a claim of ineffective assistance of appellate counsel is not an adequate back

door to a full adjudication of ineffectiveness of trial counsel.

	VI.  Merits of the Conflict of Interest Claim

	Because Woods did not challenge the adequacy of his trial representation on direct appeal, Woods v. State, 547 N.E.2d 772 (Ind. 1989), aff’d on reh’g, 557 N.E.2d 1325 (Ind. 1990), his ineffective assistance claims are not waived.  With respect to the merits, Woods argues that he was denied effective assistance of counsel because his first trial counsel,

Charles Rhetts Jr., had a conflict of interest.  Woods was charged with murder and robbery

on April 9, 1984 and the State soon filed a request for the death penalty.  Citing an

undeveloped possible conflict of interest because he had previously represented an expected

witness for the State in a different matter, Rhetts requested a conference with the court.  A

meeting in the trial court’s chambers was also attended by the prosecutor.  Successor counsel

Allen Wharry was initially at the meeting but left the room after Rhetts asked that Wharry

not be present for the disclosure.  In Wharry’s absence, Rhetts told the trial court that the witness in question was Woods’ mother.  Rhetts later explained to the postconviction court that he believed he could not reveal even the fact of his prior representation of the mother

to Wharry, much less any details of the representation.  On October 25, 1984, the court

permitted Rhetts to withdraw.  The court did not hold a hearing on the record or otherwise

inform Woods or his new lawyers (Wharry and co-counsel Douglas Johnston) of the nature

of the conflict.  All they knew was that Rhetts had been allowed to withdraw due to a possible conflict.  Opening statements in the trial began four months later on February 22,

1985.  As expected, the mother testified for the State regarding her son’s involvement in the

crimes.   

	Woods’ argument, although not a model of clarity, appears to consist of four main

assertions: (1) Rhetts’ disclosure of the nature of the conflict in general terms in the presence

of the prosecutor, but not to Woods or his new lawyers, gave the State an unfair tactical

advantage in preparing to question Woods’ mother; (2) Rhetts, presumably due to the

conflict, did little investigation or other preparation for trial; (3) the conflict tainted the rest

of the proceedings because the time Rhetts dawdled away before disclosing the conflict was

charged to Woods, leaving Wharry and Johnston with only a few months to prepare for trial;

and (4) the new lawyers’ failure to discover the conflict constituted ineffective assistance. 

The State responds that Woods received effective assistance because Wharry and Johnston

rendered conflict-free representation after Rhetts withdrew and the conflict did not affect

Rhetts’ or the latter lawyers’ performance.23     	

	The federal constitutional right to effective assistance of counsel necessarily includes

representation that is free from conflicts of interest.  Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981).  To establish a violation of the Sixth Amendment

due to a conflict, a defendant who failed to raise the objection at trial must demonstrate that trial counsel had an actual conflict of interest and that the conflict adversely affected

counsel’s performance.  Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980); Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (discussing Cuyler).  Once the two prongs of Cuyler are met -- actual conflict and adverse impact -- prejudice is presumed.  Burger v. Kemp, 483 U.S. 776, 783, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987).  An adverse effect on performance caused by counsel’s failure to act requires a showing of (1) a plausible strategy or tactic that was not followed but

might have been pursued; and (2) an inconsistency between that strategy or tactic and

counsel’s other loyalties, or that the alternate strategy or tactic was not undertaken due to the

conflict.  Winkler v. Keane, 7 F.3d 304, 309 (2d Cir. 1993) (adopting test followed by First and Third Circuits).  See also Cates v. Superintendent, Indiana Youth Center, 981 F.2d 949, 955 (7th Cir. 1992) (“The premise of a defendant’s claim that he was denied conflict-free

assistance . . . must be that his lawyer would have done something differently if there was

no conflict.”).24   

	The State asserts that Rhetts’ predicament did not rise to the level of an “actual” conflict because he never questioned Woods’ mother under oath.  Indeed, Rhetts explained

in postconviction that he was aware of the possibility of the conflict months before he

withdrew, but did nothing because he believed the conflict would not be a problem until trial

approached.  Whether the conflict was “potential” or “actual” is academic because, even

assuming an actual conflict,25 Woods has not established an adverse effect on his counsel’s performance.  First, he has not explained what the State could have learned at the meeting in which Rhetts asked to withdraw that so upset the possibility of a fair trial.  Rhetts

disclosed no details of the prior representation.  Second, contrary to Woods’ contention,

Rhetts did not sit idle for the six months that he was on the case.  Although he had not

prepared for a possible penalty phase, he investigated Woods’ sanity and competency to

stand trial, filed a standard discovery request, and secured a change of venue due to adverse

pretrial publicity arising out of the trial of co-defendant Greg Sloan.  While not perfect

representation in a capital case, at the pretrial stages this is not the stuff of adversely affected

performance.  Cf. Thompkins v. State, 482 N.E.2d 710, 713 (Ind. 1985) (counsel’s representation was not adversely affected where he conducted thorough discovery and filed numerous motions and objections on defendant’s behalf).  	

	Third, and not surprisingly, Woods fails to direct our attention to evidence supporting

his assertion that the conflict tainted the rest of the proceedings.  There is no claim that the new lawyers had a conflict and Woods has not explained how Wharry and Johnston would

have handled the case differently if they had been told of or discovered Rhetts’ conflict.  Any

information Rhetts possessed about the mother was presumably privileged.  Even if Rhetts’ prior representation of the mother precluded him from fully probing her possible involvement

in the crime, as Woods contends, Wharry and Johnston deposed her on that subject and had

adequate opportunity to investigate that issue.  More generally, the trial court granted the

new lawyers’ request for a continuance to give them more time to prepare, and this Court

held on direct appeal that the failure to grant additional continuances was not error: “There

is no basis in the record upon which to conclude that additional time for preparation and

consultation would have better equipped defense counsel to represent their client.”  Woods, 547 N.E.2d at 788.  Thus we cannot accept that the conflict structurally infected the rest of the proceedings.

	Woods would have us overlook the fact that Rhetts withdrew nearly four months

before trial.  This is a critical point.  Because successor counsel Wharry and Johnston planned and executed their defense strategy after their own discovery, pretrial motions, and

consultations with Woods, any claim that Rhetts’ inaction likely affected their performance

-- or, for that matter, the fairness of the trial -- requires more than a bald allegation.  Woods

in effect asks us to presume ineffectiveness and an unfair trial where initial trial counsel withdraws due to a conflict.  There is no such presumption.  Accordingly, his claim that he

was denied effective assistance due to Rhetts’ prior representation of his mother fails.

		VII.  Woods’ Remaining Ineffectiveness Claims

	Woods alleges a plethora of other deficiencies in the handling of his case and argues that the postconviction court erred in finding that he received effective assistance of counsel. 

To establish a violation of the Sixth Amendment right to effective assistance of counsel, the defendant must show that (1) counsel’s performance fell below an objective standard of reasonableness based on prevailing professional norms; and (2) there is a reasonable

probability that, but for counsel’s errors, the result of the proceeding would have been

different.  Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).  “A reasonable probability is a probability sufficient to undermine confidence in the

outcome.”  Id. at 694.  More recently, the Supreme Court of the United States held that prejudice resulting from ineffective assistance is not established unless the error rendered the

result of the proceeding fundamentally unfair or unreliable.  Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993).  The two prongs of Strickland are separate and independent inquiries; hence “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.”  Strickland, 466 U.S. at 697.  

	Consistent with this directive, we assume, without deciding, that Woods could establish that trial counsel’s performance fell below prevailing professional norms in one or more respects.26  Woods nonetheless must show a reasonable probability of a different result but for the alleged errors.  The postconviction court found in detailed findings that Woods

had not shown prejudice.  There is no need to repeat these findings here.  It suffices to say

that Woods makes no colorable claim that the evidence as a whole leads unerringly and unmistakably to an opposite conclusion as to the required showing of prejudice.  For that

reason alone, we affirm the denial of postconviction relief.  Spranger v. State, 650 N.E.2d 1117, 1119-20 (Ind. 1995).  

	The individual incidents of allegedly deficient performance are too numerous to list

or even summarize here.  The brief filed on behalf of Woods deals with nearly every action

or inaction by trial counsel, but makes no effort to establish prejudice from the supposed

errors.  At one point, Woods even suggests that proof of prejudice is not required and refers to the postconviction court’s finding that no prejudice was shown on a particular point as the

“incorrect legal standard” to apply in determining whether the Sixth Amendment was

violated.  Woods, not the postconviction court, is incorrect on that point.  We are aware that

the “duty to search for constitutional error with painstaking care is never more exacting than

it is in a capital case.”  Burger v. Kemp, 483 U.S. 776, 785, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987).  Nonetheless, Woods’ failure to point to anything contradicting the

postconviction court’s finding of lack of prejudice permits an uncomplicated disposition of the rest of the appeal notwithstanding the serious nature of the proceedings.      

	Because this is a death penalty case, and for that reason only, we briefly address the

ineffectiveness claims, roughly in the order that they are presented but with some

consolidation due to redundant argument.  Woods first alleges a variety of areas of possible

investigation that were not but might have been pursued.  The postconviction court found no

prejudice from any of these and no serious contention is made attacking that finding.  

	Although several challenges related to jury selection were preserved and rejected on

direct appeal, Woods, 547 N.E.2d at 785-86, 791, Woods argues that counsel’s handling of voir dire fell below prevailing professional norms.  The objections to counsel’s performance

in voir dire include fifteen shortcomings identified by Woods’ expert on death penalty

defense standards in the postconviction court.  Woods concludes his discussion of this list

by complaining that the postconviction court “failed to explore the issues of whether any

jurors actually were seated who should not have been.”  He fails to explore that subject in

this appeal and for that reason presents no claim for reversal.  

	Woods next attacks the content of counsel’s opening and closing arguments at the

guilt phase, as well as other tactical trial decisions (e.g., failure to cross-examine witnesses

or object to evidence, and failure to argue theories such as sudden heat that were supposedly

more consistent with the mitigation evidence).  Woods seeks to avoid the obvious point that

classic tactical choices of this sort hardly ever support a claim of ineffective assistance

because they are matters of trial strategy, Douglas v. State, 663 N.E.2d 1153 (Ind. 1996), by contending that counsel’s performance was so uninformed that no presumption of strategic decision should attach.  However, Woods has not elaborated how any alternative argument

or tactic would possibly, much less reasonably probably, have changed the outcome.  Trial counsel Johnston testified in postconviction that “we honestly felt we had a very difficult

case.  It was very difficult to win on the guilt phase.”  Woods concedes in this appeal that there was “overwhelming evidence of his participation in the crime.”  In light of the powerful

evidence of guilt -- including a confession held on direct appeal to have been properly

admitted, Woods, 547 N.E.2d at 786-87 -- we cannot say that the convictions were a fundamentally unfair or unreliable result.  Fretwell, 506 U.S. at 369.      	

	Woods next points to numerous alleged omissions at the penalty phase, including

failure to give an opening statement or call Woods to the stand, failure to assemble and present a complete social or life history of Woods for mitigation purposes, and failure to

make an effective presentation of the mitigation evidence that was gathered.  The argument

(not unfamiliar in postconviction) boils down to (1) counsel should have done more; and (2)

counsel was ineffective with respect to what little was done.  Neither contention withstands

scrutiny here.  As noted, counsel’s choices related to opening or closing argument -- and, for

that matter, the decision whether the defendant should testify -- are strategic calls that will

rarely support a Sixth Amendment violation.  Indeed, counsel Johnston testified in

postconviction that he feared Woods would be “beat up” by the prosecutor if he took the

stand.  

	With respect to the mitigation evidence, the postconviction court found that the

evidence offered at the postconviction hearing was cumulative of the evidence presented at trial.  Woods’ contention to the contrary is wholly conclusory; and he concedes that at least

some of this evidence was duplicative.  In any event, Woods has not explained what any

witness would have said, or any investigation would have uncovered, that might have led to

a different sentence.  He focuses on postconviction testimony illustrating difficulties in his upbringing, particularly related to his abusive mother.  These arguments were not only made

at trial but credited: on direct appeal we agreed with the trial court’s determination that

Woods’ “turbulent childhood” was a “significant mitigating circumstance.”  Woods, 547 N.E.2d at 782.  Thus, even assuming the postconviction evidence on this point was not

cumulative, prejudice has not been proved because Woods’ surroundings were accepted as

a mitigating factor at sentencing without the postconviction testimony.  See also Hough v. State, 690 N.E.2d 267, 272 (Ind. 1997) (prejudice was not established because defendant’s personality disorder and abusive family background were not necessarily entitled to

mitigating weight), petition for cert. filed, __ U.S.L.W. ____ (U.S. July 23, 1998) (No. 98- 5826).27  	

	The next contention is that the postconviction court erred in summarily dismissing several claims alleging that “numerous procedural, constitutional and instructional issues”

not litigated either at trial or on direct appeal supported a finding of ineffective assistance of

counsel.  In the eight pages devoted to this argument, nowhere does Woods explain what

these “issues” are.  Rather, he incorporates the claims by reference by listing the relevant

postconviction court findings on these “issues” in a footnote.  It is apparent from the findings

that some of the arguments -- such as allegedly deficient handling of voir dire -- duplicate

Woods’ other claims.  Others (e.g., prosecutorial misconduct) were resolved against Woods

on direct appeal.  For each argument, the postconviction court found that Woods offered no

evidence or authority to support his contention or failed to show a reasonable probability of

a different result but for the error.  Because Woods points to nothing in the record showing

these findings to be clearly erroneous, this presents no basis for reversal.

	Woods’ remaining ineffectiveness claims are miscellaneous in nature and, because

they are meritless, amenable to summary disposition.  Woods raises a laundry list of

undeveloped challenges to the jury instructions.  It is difficult to determine whether these

claims allege ineffective assistance for failure to object to or proffer a particular instruction,

or are direct (and thus untimely) challenges to rulings at trial on instructing the jury.  These

arguments, if not defaulted for failure to raise them as free standing claims on direct appeal,28 are waived for lack of cogency and failure to cite to the record.  Armstead v. State, 538 N.E.2d 943, 945 (Ind. 1989).  Finally, Woods contends that the postconviction court erred

in finding certain claims to be res judicata because they were or could have been raised on direct appeal.  Woods maintains that his petition for postconviction relief asked that these

issues be addressed as both free standing claims and ineffective assistance for failure to raise

each issue on direct appeal; therefore the finding of procedural default was error.  This

assertion presents no basis for reversal.29

	Conclusion

	David Leon Woods received effective assistance of counsel in conformity with the Constitution of the United States.  The denial of his petition for postconviction relief is

affirmed.

	SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.