Pursuant to Ind.Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before 

any court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:

WILLIAM BEELER GREGORY F. ZOELLER

Pendleton, Indiana Attorney General of Indiana

KARL N. SCHARNBERG

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

WILLIAM BEELER, )

)

Appellant-Defendant, )

)

vs. ) No. 49A05-1209-PC-480

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Sheila A. Carlisle, Judge

Cause No. 49G03-0606-PC-114856

October 15, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
2

William Beeler appeals the denial of his petition for post-conviction relief (PCR). He 

presents multiple issues for our review, which we consolidate1 and restate as:

1. Whether Beeler’s trial counsel was ineffective because counsel did not:

a. Challenge two jurors;

b. Move to suppress a burgundy lawn chair found at Beeler’s home;

c. Object to Shannon Pratt Parsley’s testimony regarding Beeler’s 

appearance on a particular day; and

d. Object to statements the prosecutor made during closing argument; and

2. Whether Beeler’s appellate counsel was ineffective because counsel did not:

a. Challenge Beeler’s sentence based on Ind. Code § 35-50-1-2; and

b. Challenge the sentencing court’s alleged failure to give proper weight 

to a mitigating circumstance.

We affirm.

 

1

Indiana Appellate Rule 46(A)(8)(a) requires that an argument on appeal “contain the contentions of the 

appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by 

citations to authorities, statutes, the Appendix or parts of the Record of Appeal relied on[.]” Beeler failed to 

follow App. R. 46(A)(8)(a) with regard to three of the issues he presents on appeal, specifically: (1) whether 

the post-conviction court abused its discretion when it denied Beeler’s request to issue subpoenas for four trial 

witnesses; (2) whether the post-conviction court erred when it denied Beeler’s request for a printed transcript 

from his PCR evidentiary hearing for use during the preparation of his Proposed Findings of Fact and 

Conclusions of Law; and (3) whether Beeler’s trial counsel was ineffective for failing to move to suppress a 

photo array. Accordingly, those issues are waived from our consideration. See Matheney v. State, 688 N.E.2d 

883, 907 (Ind. 1997) (failure to make a cogent argument supported by citation to authority results in waiver of 

issue on appeal).
3

FACTS AND PROCEDURAL HISTORY

The facts surrounding Beeler’s convictions, as iterated in his direct appeal, are as 

follows:

Days before the robbery, bank customer Warren Mann saw a black male 

sitting in a black Ford Taurus. The Taurus was parked where employees 

typically parked and had been backed into the parking space, so that the car 

faced the bank. Suspicious, Mann wrote down the numbers of the license 

plate, but omitted one letter.

At 8:00 a.m. on June 16, 2006, bank employees Christopher Ferguson 

and Liza Burge opened the bank for business. A customer, Max Martens, 

immediately entered. At approximately 8:02 a.m., Beeler entered and pointed 

a handgun at Burge. At Beeler’s direction, Ferguson closed the blinds in the 

drive-through area. Ferguson used duct tape to bind Burge’s and Martens’ 

arms behind them and to cover their mouths. Bound, Burge and Martens sat in 

a small copy room. Beeler forced Ferguson to the tellers’ drawers and 

instructed him to place the cash into a burgundy bag with a black strap. Long 

and cylindrical, the bag appeared to be the sort designed to carry a fold-up 

camping chair. Ferguson complied.

As Beeler and Ferguson then approached the vault, they heard the front 

door open. Claudine Polley and her eight-year-old son entered. Ferguson 

approached them and told them to follow Beeler’s instructions. Beeler took 

Polley’s purse and her son’s GameBoy, and instructed them to sit down outside 

the copy room. They did so. By this time, there were six people in the bank: 

Beeler and the five people alleged to have been confined. Beeler and Ferguson 

then emptied the vault. Although Beeler repeatedly instructed Ferguson not to 

look at him, Ferguson did so several times. Beeler left the bank with more 

than $210,000 in cash. He exited and greeted Sandra Whitaker as she entered 

the bank. Ferguson contacted authorities.

At 9:00 a.m., Mann, the customer who days before had written down 

the partial license plate number, returned to the bank to find the investigation 

in progress. Days later, Mann reported his observations and the license plate 

information to Lawrence Police Officer Gary Woodruff. Officer Woodruff 

searched all twenty-six possible license plate combinations and found one 

black Ford; it was registered to Beeler, a black male. Over approximately the 

same period, Beeler purchased a car ($5512), used two money orders to pay 

rent that had been due at the beginning of the month ($1060), and used cash to 

purchase a mattress ($954) and other furniture ($1558). Police searched 
4

Beeler’s new car and his apartment, and found $1200 in cash and a burgundy 

lawn chair.

Beeler v. State, 49A05-0708-CR-467 (Ind. Ct. App., May 14, 2008), trans. denied. 

Beeler was convicted of robbery and five counts of criminal confinement, and he was 

determined to be an habitual offender. He appealed his convictions and sentence, and we 

affirmed.

On February 11, 2009, Beeler, pro se, filed a petition for PCR alleging ineffective 

assistance of trial and appellate counsel. The court appointed counsel for him on March 4, 

but counsel withdrew on October 19. On January 19, 2011, Beeler, pro se, filed an amended 

petition for PCR. The post-conviction court held an evidentiary hearing. After the parties 

filed proposed findings of fact and conclusions of law, the post-conviction court denied

Beeler’s petition. 

DISCUSSION AND DECISION

We first note Beeler proceeds in this appeal pro se. A litigant who proceeds pro se is 

held to the rules of procedure that trained counsel is bound to follow. Smith v. Donahue, 907 

N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert. dismissed. One risk a litigant takes 

when he proceeds pro se is that he will not know how to accomplish all the things an attorney 

would know how to accomplish. Id. When a party elects to represent himself, there is no 

reason for us to indulge in any benevolent presumption on his behalf or to waive any rule for 

the orderly and proper conduct of his appeal. Foley v. Mannor, 844 N.E.2d 494, 502 (Ind.

Ct. App. 2006).
5

Post-conviction proceedings provide defendants with the opportunity to raise issues 

that were not available on direct appeal or were not known at the time of the trial. State v. 

Hernandez, 910 N.E.2d 213, 216 (Ind. 2009). Claims available, but not presented, on direct 

appeal are not available for post-conviction review. Id. Thus, not all issues are available in a 

post-conviction proceeding; challenges to convictions must be based on grounds enumerated 

in the post-conviction rules. Id.; Post Conviction Rule 1(1). A petitioner for PCR cannot 

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

complaints that something went awry at trial are generally cognizable only when they 

demonstrate deprivation of the right to effective counsel or were demonstrably unavailable at 

the time of trial or direct appeal. Id.

1. Ineffective Assistance of Trial Counsel

A successful claim of ineffective assistance of trial counsel must satisfy two 

components. First, the defendant must show deficient performance - representation that fell 

below an objective standard of reasonableness involving errors so serious that the defendant 

did not have the counsel guaranteed by the Sixth Amendment. McCary v. State, 761 N.E.2d 

389, 392 (Ind. 2002), reh’g denied. Second, the defendant must show prejudice - a 

reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) 

that, but for counsel’s errors, the result of the proceeding would have been different. Id.

Beeler argues his trial counsel, Marla Thomas, was ineffective for:

Not challenging for cause two bias[ed] jurors [Susan Jodka and Nicole 

Groeschen] during voir dire, and by not attempting to suppress or object to an 

illegally obtained chair, and a suggestive Photo Array from being entered into 

evidence. Also Ms. Thomas allowed a State witness to give unchallenged 
6

opinion testimony that was highly prejudicial and went beyond the limine [sic] 

agreement. Ms. Thomas did not enter into evidence various statements made, 

and point out inconsistencies of State witnesses that would have lead [sic] to a 

successful impeachment of their identification testimony. The [PCR] Court 

should have found error in Ms. Thomas allowing the State to incorrectly 

represent the time of viewing of the robber by a State witness, and the income 

of a Defense witness who made a personal loan to the Defendant in the State’s 

closing. These cumulative errors and deficiencies clearly show that Ms. 

Thomas was ineffective in her representation of the Defendant.

(Br. of Appellant at 6.) We cannot hold trial counsel was ineffective.

a. Juror Challenges

Regarding Thomas’ decision not to challenge two jurors, the PCR court found:2

Ms. Thomas does not recall a juror named Susan Jodka; she does recall 

one of the jurors saying that her son know [sic] deputy prosecutor 

Massillamany and is positive that she did question the juror about that. 

Regarding that juror, Ms. Thomas added: [sic] that the court had already 

determined that her answers were that she could be fair and impartial, that 

there had not been contact between the juror and deputy prosecutor for a 

decade, and that the juror’s husband was a defense attorney therefore Ms. 

Thomas thought that she would be a good juror.

Ms. Thomas does not recall Nicole Groeschen or her saying that she 

could not be impartial if the victim was a child.3 Ms. Thomas did not believe it 

was important to question her regarding a burglary in which she was a victim 

and noted that being a victim of crime is not automatic grounds to challenge 

for cause. Ms. Thomas added that a lot of times the information that is written 

on the juror’s questionnaires will influence the questions that she decides to 

ask or not to ask.

Ms. Thomas does not recall Beeler saying that he did not want either of 

these women as jurors. Ms. Thomas knows that she would have had 

discussions with Beeler during jury selection and that she always asks her 

clients to let her know if they have a bad feeling about someone, but she does 

 

2 We commend the PCR court on its extensive and well-detailed findings and conclusions. The thoroughness 

of the court’s order facilitated our review of this complex matter.

3 Beeler then read a portion of the jury transcript which reflected that Ms. Thomas did let the juror know that 

one of the alleged victims in the case was a 9-year-old boy and the juror responded that she believed she could 

be fair. The transcript of voir dire is not otherwise before this court, as Beeler did not offer it as evidence.
7

not have any recollection about specific conversation regarding specific jurors 

in this case because four years have passed since the jury. Ms. Thomas 

testified that she would have considered any concerns that Beeler had 

conveyed to her during jury selection. Ms. Thomas also testified that is [sic] 

she believed that there were grounds to challenge any juror for cause, then she 

would have moved to strike them for cause.

(App. at 71-72) (footnote in original). Based on those findings, the PCR court concluded:

Trial counsel’s post-conviction testimony established that she would 

have made a challenge for cause of any potential juror that she believed 

warranted such a challenge. Regarding her questioning of these jurors to 

explore possible bias, it is clear from Ms. Thomas’s post-conviction testimony 

that she did ask such questions, that the prospective jurors responded that they 

could be fair, that Ms. Thomas considered all factors including information on 

jury questionnaire in determining who would be the most favorable jurors for 

her client, and that she also considered input from Beeler in making these 

decisions. See Findings and [sic] Fact, paragraph 12, supra. Petitioner has not 

shown otherwise and has failed to meet his burden of proving deficient 

performance here.

Further, Petitioner chose not to submit a transcript of the voir dire

proceedings. From the portions of voir dire that Beeler read in questioning 

trial counsel during the post-conviction relief hearing, there was no indication 

that the outcome of the trial could have been more favorable to Petitioner had 

trial counsel asked additional questions or handled voir dire differently. There 

is no evidence of prejudice in his claim.

(Id. at 78.)

On appeal, Beeler includes in his argument quotations from the voir dire transcript. 

As the voir dire transcript was not in evidence before the PCR court, we are unable to 

consider it. See Bernel v. Bernel, 930 N.E.2d 673, 676 n. 2 (Ind. Ct. App. 2010) (“A trial 

court can decide the issues based only upon that evidence which is properly before the court 

and in the record, and we are bound by that record on appeal.”), trans. denied. 
8

b. Suppression of Burgundy Chair

To show ineffective assistance based on counsel’s failure to object, a petitioner must 

demonstrate the trial court would have sustained the objection. Glotzbach v. State, 783 

N.E.2d 1221, 1224 (Ind. Ct. App. 2003). The petitioner must also establish prejudice. 

Timberlake v. State, 690 N.E.2d 243, 259 (Ind. 1997), reh’g denied. 

Beeler claimed Thomas should have objected or moved to suppress a burgundy chair 

found in Beeler’s home. The PCR court found:

Regarding the burgundy lawn chair, Ms. Thomas does not necessarily 

agree that law enforcement must get an additional search warrant to seize 

items beyond those listed in the probable cause warrant and believes that it 

depends on the circumstances. Ms. Thomas believes that the only evidence at 

trial regarding the chair coming in a bag was testimony that it was the kind of 

chair that typically comes in a bag. She does not recall specifically but believe 

[sic] that the State’s justification for seizing the chair was something that 

would have come from the long, thin dark-colored duffle bag as depicted in the 

video. Ms. Thomas testified that she did not move to suppress the lawn chair 

because they would still have been able to testify about seeing it when they 

entered to serve the warrant. She explained that anytime the police are in a 

place where they have a lawful right to be, they can testify about what they 

saw.

(App. at 72.) Based on those findings, the PCR court concluded Thomas was not ineffective 

because, had she filed a motion to suppress or made an objection to the admission of the 

burgundy chair, that motion or objection would have been denied based on long-standing 

case law. (Id. at 79.) We agree.

In Bigler v. State, our Indiana Supreme Court held that when officers are executing a 

legally obtained search warrant, they are 

authorized to seize other items of property not listed in the search warrant if 

they . . . are properly in a position from which could view a particular area, 
9

they discover incriminating evidence inadvertently and it is immediately 

apparent to them the items they observe may be evidence of a crime, 

contraband or otherwise subject to seizure.

540 N.E.2d 32, 34 (Ind. 1989). In Pavey v. State, we held police could seize a black leather 

jacket discovered in plain view during the execution of a legally-obtained search warrant 

even though the jacket was not on the list of items to be seized, because witnesses indicated 

the person who committed the crime was wearing dark clothing. 764 N.E.2d 692, 702-03 

(Ind. Ct. App. 2002), trans. denied. Based on Bigler and Pavey, we cannot say the postconviction court erred in concluding a motion to suppress or objection would not have been 

granted, and therefore Beeler has not demonstrated Thomas was ineffective. See Glotzbach, 

783 N.E.2d at 1224 (PCR petitioner must demonstrate trial court would have sustained 

objection).

c. Objection to Parsley’s Testimony

The trial court granted a motion in limine prohibiting Shannon Pratt Parsley, the 

person to whom Beeler paid his rent, from “giving her opinion that Beeler was the robber 

depicted in photos from the bank surveillance video.” (App. at 83.) During trial, Parsley 

testified regarding what Beeler was wearing when he delivered his rent payment to her two 

days after the robbery. Beeler argues Thomas should have objected to Parsley’s testimony 

because it violated the motion in limine and was impermissible opinion testimony. We 

disagree.

Thomas told the PCR court “she [did] not believe that [Parsley’s] testimony went 

beyond the scope of the motion in limine.” (Id. at 73.) Based on that statement, the PCR 
10

court concluded Thomas was not ineffective because an objection would not have been 

successful.

The PCR court was correct. Parsley’s testimony addressed her impression of Beeler 

on the day he delivered his rent to her, not her reaction upon viewing the bank surveillance 

video. Her testimony was permissible under Ind. Evid. Rule 602 (witness may testify only 

about something of which he has personal knowledge), and did not violate the motion in 

limine. Had Thomas made an objection, it would not have been sustained. Thus, Beeler has 

not demonstrated Thomas was ineffective for failing to object to Parsley’s testimony.

d. Objections to Closing Arguments

Beeler argues Thomas should have objected twice during the State’s closing 

argument. The PCR court found:

Regarding the witness who testified that he loaned ten thousand dollars 

to [Beeler], Ms. Thomas does recall the witness but not the specifics. If the 

State misstated facts about that witness’s gross income in closing argument, 

Ms. Thomas testified that she would not have objected to something like that 

because the jury would pick up on it and it would hurt the State, not help them

[sic]. Ms. Thomas testified that argument is [an] interpretation of the facts, 

and that she gets to do that as well as the State. She also testified that 

objecting to a minor point in the State’s closing argument could end up 

drawing more attention to it.

Regarding the State pausing for thirty second [sic] in their [sic] closing 

argument, Ms. Thomas testified that is a good thing because that is less time 

that they [sic] have to speak to the jury. She does not remember the details 

regarding what the State said about Liza [sic] Burge’s testimony in its closing 

argument. If the State did say that Ms. Burge observed the robber for two to 

three minutes, Ms. Thomas explained that such a statement was not 

objectionable because the witness did testify to that initially. Ms. Thomas 

believes that she was able to show on her cross-examination of Ms. Burge that 

she had considerably less time than that to observe the robber, but that to 

object to this in closing argument would have just made her and the defendant 

look bad because the judge would never have sustained the objection and 
11

would have said that was part of her testimony.

(App. at 74.) Based on that finding, the PCR court concluded Beeler had not demonstrated 

any objection would have been sustained, that Thomas’ decisions not to object were strategic, 

and Beeler was not prejudiced. We agree.

Beeler’s argument on appeal seems to focus on what he perceives as misstatements of 

the evidence presented at trial. The statements to which he takes issue are not misstatements 

at all. Regarding the witness’ income, the PCR court noted:

Beeler argues in his proposed findings and conclusions that trial counsel 

should have objected to the State’s reference in closing argument to Steve 

Hutchinson’s net income as $40,000 when Mr. Hutchinson testified at trial that 

his income was $190,000 and his business income was $40,000. It is 

Petitioner who misstates the evidence here. See [Trial Transcript] 621 

(Hutchinson testified that the 2005/2006 for Hutchison [sic] Trucking was 

$190,000 “minus deductions, expenses, and things of that nature.”); T.R. 623 

(Hutchison [sic] testified that after taxes his ordinary business income for 2006 

was $40,459).

(Id. at 86) (footnote omitted). The PCR court also noted Burge testified she saw the robber 

for two to three minutes, as indicated in the State’s closing argument. Finally, even if there 

were misstatements and Thomas should have objected, Beeler offered no evidence, nor does 

he argue on appeal, that he was prejudiced by Thomas’ performance. Therefore, he has not 

demonstrated Thomas was ineffective for failing to object to the statements in closing 

argument.

2. Ineffective Assistance of Appellate Counsel

Claims of ineffective assistance of appellate counsel are reviewed using the same 

standard as claims of ineffective assistance of trial counsel. Taylor v. State, 717 N.E.2d 90, 
12

94 (Ind. 1999). These claims generally fall into three categories: (1) denying access to 

appeal; (2) waiver of issues; and (3) failure to present issues well. Bieghler, 690 N.E.2d at

193-95. Relief is appropriate only when we are confident we would have ruled differently. 

Id. at 196. Beeler argues counsel was ineffective for failing to raise on appeal the trial 

court’s alleged misinterpretation of Ind. Code § 35-50-1-2 and the trial court’s failure to give 

weight to Beeler’s proffered mitigating circumstances. 

a. Ind. Code § 35-50-1-2

The trial court sentenced Beeler to twenty years for Class B felony robbery, to be 

served consecutive to the thirty-year aggregate sentence4for the five counts of criminal 

confinement.5 Beeler argues appellate counsel should have argued his sentences for criminal 

confinement could not be served consecutively because criminal confinement is not a “crime 

of violence” as defined by Ind. Code § 35-50-1-2(a). 

Pursuant to Ind. Code § 35-50-1-2:

[E]xcept for crimes of violence, the total of the consecutive terms of 

imprisonment . . . to which the defendant is sentenced for felony convictions 

arising out of an episode of criminal conduct shall not exceed the advisory 

sentence for a felony which is one (1) class of felony higher than the most 

serious of the felonies for which the person has been convicted.

Beeler was convicted of five counts of Class B felony criminal confinement. The advisory 

 

4 The trial court sentenced Beeler to fifteen years for each of the criminal confinement convictions. His 

criminal confinement convictions were numbered II – V. Counts II and III were to be served concurrently with

each other and consecutive to Counts VI and V, which were to be served concurrently with each other, for a 

total of thirty years.

5 Beeler’s aggregate sentence was seventy years, based on forty years imposed for robbery and thirty years 

imposed for criminal confinement.
13

sentence for a Class A felony is thirty years. Beeler’s aggregate sentence for the five counts 

of Class B felony criminal confinement was thirty years, and thus an argument challenging 

the consecutive sentences would not have prevailed. Appellate counsel was not ineffective 

for failing to present the issue on appeal.

b. Failure to Give Mitigating Circumstances Weight

Beeler also contends appellate counsel should have argued the trial court “assigned 

too much weight to the 1985 Robbery conviction of the Defendant, because the length of 

time between like crimes was beyond ten years the robbery should have received low 

weight.” (Br. of Appellant at 18) (citations omitted). In 2007, our Indiana Supreme Court 

held in Anglemyer v. State: “Because the trial court no longer has any obligation to ‘weigh’ 

aggravating and mitigating factors against each other when imposing a sentence, unlike the 

pre-Blakely statutory regime, a trial court can not now be said to have abused its discretion in 

failing to ‘properly weigh’ such factors.” 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g

875 N.E.2d 218 (Ind. 2007). Thus, in 2008, when Beeler brought his direct appeal, any 

argument regarding the weighing of aggravators or mitigators would have failed. Appellate 

counsel was not ineffective for failing to present that issue on appeal.

CONCLUSION

Beeler did not demonstrate trial counsel was ineffective for failing to file a motion to 

suppress or to object to the admission of a burgundy lawn chair because he did notshow such 

a motion or objection would have been sustained. Nor was trial counsel was ineffective for 

failing to object to Parsley’s testimony, as Beeler did not show the objection would have been 
14

sustained. Beeler was not prejudiced when trial counsel did not object to two statements 

made during the State’s closing argument. Finally, Beeler did not show appellate counsel 

was ineffective because both sentencing arguments now asserted by Beeler would have been 

meritless. Accordingly, we affirm the denial of post-conviction relief.

Affirmed.

BAKER, J., and MATHIAS, J., concur.