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:

TY EVANS GREGORY F. ZOELLER

Pendleton, Indiana Attorney General of Indiana

ELLEN H. MEILAENDER

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

TY EVANS, )

)

Appellant-Petitioner, )

)

vs. ) No. 49A04-1112-PC-697

)

STATE OF INDIANA, )

)

Appellee-Respondent. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Robert R. Altice. Jr., Judge

Cause No. 49G02-0505-PC-82867

August 8, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge
2

STATEMENT OF THE CASE

Ty Evans appeals the post-conviction court’s judgment denying his petition for 

post-conviction relief. Evans raises seven issues for our review, which we consolidate 

and restate as the following two issues:

1. Whether his freestanding claim that the State destroyed material, 

exculpatory evidence is available for post-conviction review; and

2. Whether he received ineffective assistance from his trial counsel.

We affirm.

FACTS AND PROCEDURAL HISTORY

The facts underlying Evans’ convictions were stated by this court in his direct 

appeal:

Evans occasionally paid nineteen-year-old Melinda Keedy to clean his 

house, do his laundry, and care for his yard. Keedy kept all her belongings 

at Evans’s home and sometimes stayed there. Evans and Keedy were also 

partners in a scheme to commit bank fraud in Tennessee and Kentucky. 

Evans created false identity papers for Keedy that she used to open a bank 

account as well as checks that Keedy deposited in that bank account. He 

created these checks by stealing mail from mailboxes and copying 

information from the checks he found therein. Keedy would deposit or 

cash the checks created by Evans using a false thumbprint. However, in 

early May 2005, Keedy used her actual thumbprint to cash a check. When 

she informed Evans that she had done so, he became very angry. Evans 

was afraid the police would catch them, and he decided to kill Keedy.

On May 15, 2005, Evans contacted his friend and employee, Billy 

Neely, and offered him an unspecified job for which Neely could earn three 

or four thousand dollars. On May 16, 2005, Neely went to Evans’s house. 

Evans then told Neely that he wanted to kill Keedy, whom Neely also 

knew. Evans explained the plan to Neely: Evans had told Keedy that he 

was going to rob a house in Geist that night, and Keedy had agreed to drive 

him. Keedy was to meet Evans at a grocery store where he would pick her 

up. After Evans picked up Keedy, he would bring her back to his house, 

where Neely would be waiting. Once inside the house, Evans would 

strangle Keedy with a rope while Neely remained ready to apprehend 
3

Keedy should she attempt to escape. Evans would wash the body in a 

wading pool to remove any evidence and place it in a box, both of which he 

had in his garage. Finally, Neely would bury Keedy in an excavation for a 

new house. After explaining the plan, Evans drove Neely to the 

construction site where Neely was to bury Keedy. They then returned to 

Evans’s house, and Neely waited there while Evans picked up Keedy.

Evans, however, was unaware that Keedy had agreed to act as a 

police informant. A few days earlier, Ryan Stephenson, Keedy’s 

intermittent boyfriend, had contacted United States Postal Inspector 

Richard Petry and provided him with information regarding Evans and 

Keedy’s bank fraud scheme. On May 16, 2005, at approximately 5:00 

p.m., Inspector Petry learned of Keedy’s location, and Indianapolis police 

officers pulled Keedy over. Keedy admitted her involvement in the bank 

fraud scheme and agreed to accompany Inspector Petry to his office for an 

interview. On the way to Inspector Petry’s office, Keedy told him about 

the robbery she was to help Evans with that very evening. Inspector Petry 

immediately stopped his car and contacted the Indianapolis Police 

Department. Keedy drove with police officers to the home that she thought 

Evans had targeted for the robbery. The police formulated a plan wherein 

Keedy would meet Evans as planned, and while under police surveillance, 

they would drive to the Geist home, and the officers would interrupt the 

robbery before it occurred. Keedy agreed to wear a wire. The police put 

the wire on Keedy, and she went to meet Evans at the grocery store.

At approximately 7:30 p.m., Keedy arrived at the grocery store 

parking lot. Evans was waiting there as planned. Keedy got in his car, but 

Evans did not drive to the Geist house. Instead, he drove to his house, 

explaining to Keedy that he had to get his gun. Evans parked his car in his 

garage and closed the garage door. Just before she exited the car, Keedy 

saw Evans put a glove on his left hand. She entered the house in front of 

Evans. After she had taken a step or two, Evans put a rope around her 

neck, started strangling her, pulled her to the ground, and said: “You 

robbed the wrong motherfucker this time, didn't ya? $2,000 out of my 

dresser. It’s all over with bitch. You can’t be trusted. About two minutes, 

it’ll be all over. This ain’t no game. . . . You were told.” State’s Exhibits 

10, 11. Neely was also in the house and made derogatory comments to 

Keedy. Evans continued, saying, “Yeah, you were told time and time again 

to keep your . . . mouth shut.” Id.

Meanwhile, the police officers monitoring the transmission from 

Keedy’s wire realized something was wrong and attempted to enter the 

house. Evans’s house had two doors. Some officers ran to the front door, 

while Officers Jeffrey Krider, Dewey Poskon, and Jeffrey Avington ran to 
4

the side door. Next to the side door, there was a full-length window 

approximately three feet wide. Officer Poskon looked in the window and 

saw a pool table. On the other side of the pool table, he saw two pairs of 

legs, perpendicular to each other. One set of legs was bare, and the other 

set had on light blue jeans. Officer Poskon yelled, “They’re in there.” Tr. 

at 235. The officers yelled, “Police,” and tried to open the door, but it was 

locked. Id. at 244. Officer Avington attempted to kick the door open three 

times, but it would not open. Evans came to the window and said that he 

could not open the door. Officer Avington kicked the door once more, and 

it opened. He rushed in and ran after Neely, who had jumped over the 

banister and run up the stairs. Neely had on a hooded sweatshirt, brown 

work pants, and brown boots. Neely ran to the front door and unlocked it, 

allowing the officers there to enter. After the officers subdued Neely, 

Officer Avington returned to the room in which Keedy lay.

Meanwhile, Officer Krider had knocked Evans down. Evans was 

wearing light blue jeans. Officer Krider attempted to subdue Evans, who 

continued to fight. Evans was face down and was kicking and bucking 

while Officer Krider was on his back. Officer Poskon went to the other 

side of the pool table and saw Keedy face down with her head in the 

fireplace. He yelled for an ambulance and then went to assist Officer 

Krider in subduing Evans. Having returned to the room, Officer Avington 

went to help Keedy. He turned her over and removed the rope from around 

her neck. She had blood on her face and was foaming at the mouth; her 

eyes were rolled back in her head; and she had urinated on herself. He was 

unsure whether she was dead or alive. After a few seconds, Keedy gasped 

and started to cough and moan. Her face was “cherry red” due to the 

extensive hemorrhaging, she had an abrasion on her neck from the rope, her 

voice was raspy and hoarse, she was gasping for breath and 

hyperventilating, and she had difficulty swallowing. Id. at 468. However, 

she was able to indicate that Evans was the person who had attempted to 

strangle her. At some point, the police were able to handcuff Evans.

Police found two gloves in the room and two other gloves that Neely 

had dropped as he attempted to flee. Inside Evans’s garage, police found a 

small wading pool, a box large enough to hold a grown adult, a bottle of 

acid, a bottle of 409 spray, three bottles of isopropyl alcohol, and two packs 

of disposable rubber gloves. In Evans’s car, police found two bags of ready 

mix concrete, a shovel, a pick ax, a big heavy-duty trash bag, a towel, and a 

complete change of clothes. A brown paper grocery bag was taped over the 

overhead dome light. Neely showed police the construction site where he 

was supposed to bury Keedy’s body.
5

On May 18, 2005, the State charged Evans with class A felony 

attempted murder, class B felony aggravated battery, class B felony 

criminal confinement, and class D felony resisting law enforcement. On 

October 12, 2005, the State amended the information to include a[n]

habitual offender charge.

A jury trial was held December 12, 13, and 14, 2005. The jury 

found Evans guilty as charged. Evans admitted to being a[n] habitual 

offender. . . . The trial court vacated the aggravated battery and criminal 

confinement convictions on double jeopardy grounds. The trial court 

imposed a forty-year sentence for Evans’s attempted murder conviction, 

enhanced by thirty years for the habitual offender finding, and a one-year 

sentence for the resisting law enforcement conviction, to be served 

consecutively, for an aggregate sentence of seventy-one years. . . .

Evans v. State, 855 N.E.2d 378, 381-83 (Ind. Ct. App. 2006), trans. denied.

After we affirmed his convictions and sentence on direct appeal, on August 3, 

2007, Evans filed his petition for post-conviction relief, which he later amended. The 

post-conviction court held multiple evidentiary hearings on Evans’ claims. On 

November 16, 2011, the post-conviction court entered thorough findings of fact and 

conclusions of law in which it denied Evans’ petition. This appeal ensued.

DISCUSSION AND DECISION

Standard of Review

Evans appeals the post-conviction court’s denial of his petition for post-conviction 

relief. As we have explained:

[The petitioner] bore the burden of establishing the grounds for postconviction relief by a preponderance of the evidence. See Ind. PostConviction Rule 1(5); Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 

2001). Post-conviction procedures do not afford a petitioner with a superappeal, and not all issues are available. Timberlake, 753 N.E.2d at 597. 

Rather, subsequent collateral challenges to convictions must be based on 

grounds enumerated in the post-conviction rules. Id. If an issue was 

known and available, but not raised on direct appeal, it is waived. Id. If it 

was raised on appeal, but decided adversely, it is res judicata. Id.
6

In reviewing the judgment of a post-conviction court, appellate 

courts consider only the evidence and reasonable inferences supporting the 

post-conviction court’s judgment. Hall v. State, 849 N.E.2d 466, 468 (Ind. 

2006). The post-conviction court is the sole judge of the evidence and the 

credibility of the witnesses. Id. at 468-69. Because he is now appealing 

from a negative judgment, to the extent his appeal turns on factual issues 

[the petitioner] must convince this court that the evidence as a whole leads 

unerringly and unmistakably to a decision opposite that reached by the 

post-conviction court. See Timberlake, 753 N.E.2d at 597. We will disturb 

the decision only if the evidence is without conflict and leads only to a 

conclusion contrary to the result of the post-conviction court. Id.

Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied. Further: “[a]

defendant in a post-conviction proceeding may allege a claim of fundamental error only 

when asserting either (1) deprivation of the Sixth Amendment right to effective assistance 

of counsel, or (2) an issue demonstrably unavailable to the petitioner at the time of his or 

her trial and direct appeal.” Id. at 325 (quotations and alterations omitted); see also State 

v. Hernandez, 910 N.E.2d 213, 216 (Ind. 2009) (same).

Evans argues that the post-conviction court erred for two reasons. First, Evans 

argues that the State “destroyed the original [wire] recording of the incident and replaced 

it with an altered version.” Appellant’s Br. at 7. And, second, he asserts that he was 

denied the effective assistance of trial counsel. We address each argument in turn.

Issue One: Freestanding Error

Evans first claims that the wire recording of his attack on Keedy was not the 

original recording but a nefarious replacement invented by the State. The post-conviction 

court, after noting that Evans could not raise a freestanding claim of error in his petition 

for post-conviction relief, concluded that Evans could not show that this claim was newly 

discovered evidence and that, in any event, Evans’ evidence in support of his claim was 
7

not worthy of credit. On appeal, Evans asserts that “[t]he court considered [this] issue 

under the wrong standard of review[,] the rubric of newly discovered evidence, a claim 

Evans has never made and that is inapplicable to the facts. The evidence was available 

before trial . . . .” Id.

Evans concedes that the evidence supporting this claim was available before his 

trial. Thus, it is undisputed that the contents of the recording were known to Evans at the 

time of trial. Nonetheless, Evans did not challenge the tape and preserve the issue at trial,

or raise the issue on direct appeal. The State observes correctly that Evans cannot 

simultaneously claim that he knew about alleged problems with the tape prior to his trial 

yet argue that this claim was unavailable to him on direct appeal. Appellee’s Br. at 11. 

“If an issue was known and available, but not raised on direct appeal, it is waived.” 

Lindsey, 888 N.E.2d at 322. Thus, Evans’ first issue is not available for post-conviction 

review.

Issue Two: Ineffective Assistance of Counsel

Evans also asserts that he received ineffective assistance from his trial counsel1for 

numerous reasons. A claim of ineffective assistance of counsel must satisfy two 

components. Strickland v. Washington, 466 U.S. 668 (1984). First, the defendant must 

show deficient performance: representation that fell below an objective standard of 

reasonableness, committing errors so serious that the defendant did not have the 

“counsel” guaranteed by the Sixth Amendment. Id. at 687-88. Second, the defendant 

must show prejudice: a reasonable probability (i.e., a probability sufficient to undermine 

 

1

 Evans had several trial attorneys throughout the course of the State’s prosecution.
8

confidence in the outcome) that, but for counsel’s errors, the result of the proceeding 

would have been different. Id. at 694.

Further, “[d]eliberate choices by some attorneys for some tactical or strategic 

reason do not establish ineffective assistance of counsel even though such choices may be 

subject to criticism or the choices ultimately prove to be detrimental to the defendant.” 

Robles v. State, 612 N.E.2d 196, 198 (Ind. Ct. App. 1993). Indeed, “[w]e recognize that 

even the finest, most experienced criminal defense attorneys may not agree on the ideal 

strategy or most effective way to represent a client and therefore . . . we will assume that 

counsel performed adequately, and [we] will defer to counsel’s strategic and tactical 

decisions.” Mallory v. State, 954 N.E.2d 933, 936 (Ind. Ct. App. 2011) (citing Smith v. 

State, 765 N.E.2d 578, 585 (Ind. 2002)).

Here, Evans asserts that his trial counsel were ineffective for the following six 

reasons2: (1) they failed to pursue as the theory of defense that Evans was not Keedy’s 

attacker; (2) they failed to ask the court to admit statements Evans had purportedly made 

to the police on the theory that those statements were excited utterances and therefore not 

hearsay; (3) they allowed the State to present inadmissible evidence of bank fraud 

allegations pending against Evans; (4) they failed to object to an allegedly defective jury 

instruction; (5) they failed to investigate the authenticity of the State’s audio recording; 

and (6) they permitted the State to introduce an inaccurate transcript of the State’s audio 

recording. We agree with the post-conviction court that Evans’ first three arguments call 

 

2

 We have reordered Evans’ six arguments for ease of discussion.
9

into question his counsel’s strategic decisions and Evans’ last three arguments do not 

demonstrate the requisite prejudice. We address Evans’ arguments accordingly.

Counsel’s Strategy

Evans’ first three arguments all go to his counsel’s strategic decisions, which we 

will not reconsider. See id. As the post-conviction court found:

In analyzing Evans’s claims on these issues, at the outset it is important to 

understand exactly what the initial theory of the defense was. Attorney 

Jeffrey Mendes testified at the evidentiary hearing that before trial the plan 

was to make Ty Evans’s lack of intent to kill the focus of the defense. This 

defense theory was clearly the product of Mendes’s discussions with Evans, 

and was arrived at based on Evans’s assertions to Mendes about statements 

that he allegedly made shortly after the crime occurred. Mr. Mendes 

testified that Evans’s explanations consisted of insisting that he was “only 

trying to scare” the victim. At the evidentiary hearing, Evans 

acknowledged that this was going to be the focus for the defense.

Defense counsel promoted this strategy through their crossexamination of the victim and of Billy Neely, and Det. Krider. During their 

cross-examination of Neely defense counsel painted an extremely 

unflattering picture of the victim, and they pointed out issues that directly 

impinged on Neely’s intent to commit murder. Through cross-examination 

of the victim they established that she was a drug abuser who may have 

been under the influence of drugs at the time of the attack. They also 

established that she was a thief and a liar and that she was promiscuous. 

Additionally, the cross[-]examination of the victim certainly underscored 

the notion that she was potentially biased in favor of Billy Neely, because 

she was “infatuated” with him and because she chose to sue Ty Evans and 

not Billy Neely for civil damages resulting from the attack. Counsel also 

made the point that she only had seconds to make observations of her 

attackers before she became unconscious. Through cross[-]examination of 

Det. Krider, defense counsel attempted to introduce evidence of Evans’s 

arguably exculpatory statements, but were prevented by the State’s hearsay 

objection.

As a result of their ostensibly successful cross[-]examination, it is 

clear that defense counsel were convinced that they had successfully 

undermined Keedy’s and Neely’s credibility in the eyes of the jury. This 

was not an unreasonable conclusion . . . .
10

It is also clear that trial counsel[’s] initial strategy was to 

additionally get evidence of Evans’s intent and the details of his 

involvement admitted through having Evans testify. However, as Mr. 

Mendes noted in his testimony at the evidentiary hearing, the defense team 

became convinced that the victim’s testimony had been discredited. In 

addition, given the inherent problems with Evans’s testimony, i.e., due to 

his undeniable involvement in the crime and due to his extensive criminal 

history, defense counsel altered their strategy and advised Evans to not 

testify. Evans accepted this advice and elected not to testify.

Appellant’s App. at 423-24 (citations to the record omitted).

Here, Evans first contends that his counsel were ineffective “when they failed to 

pursue an identity defense.” Appellant’s Br. at 26. Specifically, Evans asserts that his 

counsel failed to introduce into evidence a photo of the “obscured window,” floor plans, a 

linguistic analysis of the wire recording, and a photo of the color of Neely’s pants, which 

“were not brown, but . . . light blue-green.” Id. at 26-32. Evans further asserts that his 

counsel failed to sufficiently impeach Keedy.

Evans’ argument that his counsel “failed to pursue an identity defense” 

misunderstands his trial counsel’s strategy. His counsel’s main theory of defense was an 

identity defense, namely, that either Evans was not the person who strangled Keedy or, at 

the very least, that the State did not prove beyond a reasonable doubt that he was. Thus, 

we agree with the State that “what [Evans] really seems to be arguing is that counsel 

should have presented this defense in a more persuasive manner.” Appellee’s Br. at 25. 

To that end, we note that Evans’ trial counsel questioned the witnesses regarding their 

view through the window and the color of Neely’s pants; they thoroughly impeached

Keedy; and they questioned how well a listener could tell who was who in the wire 
11

recording. Counsel can only do so much. We will not nitpick their tactics and strategy. 

See Mallory, 954 N.E.2d at 936. Evans cannot prevail on this claim.

Evans next asserts that his counsel rendered ineffective assistance when they did 

not get his out-of-court statements to an officer, that Evans was simply trying to scare 

Keedy, admitted during that officer’s testimony under the excited utterance exception to 

the hearsay rule. On this issue, the post-conviction court ruled as follows: 

the Court finds that application of the excited utterance rule is highly fact 

specific and Evans has not produced enough evidence to legitimately 

evaluate the specific nature and circumstances of the statements. However, 

regardless of whether a hearsay exception applies, a deeper problem exists 

because it is likely that the statements would still have been inadmissible, 

because it has long been the rule that a defendant who does not testify 

cannot introduce exculpatory statements made outside of court in order to 

enhance his credibility at trial. See Sweeney v. State, 704 N.E.2d 86, 110-

[11] (Ind.[ ]1998).

Appellant’s App. at 441-42.

It has long been the law in Indiana that a defendant may not enhance his own 

credibility by using self-serving, out-of-court hearsay declarations not subject to crossexamination. Brafford v. State, 516 N.E.2d 45, 48 (Ind. 1987) (citing Hernandez v. State, 

439 N.E.2d 625, 628-29 (Ind. 1982); Cain v. State, 261 Ind. 41, 300 N.E.2d 89 (1973)). 

To avoid this rule, Evans attempts to invoke the excited utterance exception to such 

hearsay prohibitions. The excited utterance exception requires, among other things, a 

“startling event.” Ind. Evidence Rule 803(2). But, in effect, Evans’ argument is that he 

can have his self-serving statements admitted without cross-examination so long as he 

creates his own startling event, as he did here. He cites no law for that proposition, and 

his conclusion would undermine the rule discussed in Brafford. And his counsel’s
12

strategic decision not to call Evans as a witness in order to have his statement admitted 

was a wise one. This argument is, therefore, without merit.

Evans’ third argument is that his counsel were ineffective when they “allowed 

false testimony” to be admitted by the State regarding Evans’ alleged involvement in the

bank fraud scheme with Keedy in Kentucky. Appellant’s Br. at 41. As explained by the 

post-conviction court:

it is important to note exactly what Evans is claiming, and what he is not 

claiming. In making this argument, Evans does not claim that trial counsel 

did not try to get this evidence excluded. In fact counsel filed a Motion in 

Limine on this point and argued the issue prior to trial. Evans also does not 

claim that this evidence was improper under Ind. Rule of Evid. 404(b). 

Evans does not claim that this evidence was used for some improper 

purpose, or that the State did not have a good faith basis for bringing it 

forward. Finally, Evans does not claim that the evidence was not carefully 

limited, because the trial record makes clear that this evidence was admitted 

for the limited purpose of proving motive, and the jury was instructed on 

this issue when the evidence was introduced and in the Court’s final 

instructions.

Instead, Evans narrowly claims that his counsel were ineffective 

because they did not properly address this 404(b) evidence by introducing 

evidence [namely, an alibi defense] that he was not involved in the 

crimes. . . .

* * *

In this case, by not emphasizing these extraneous charges, defense 

counsel clearly made a strategic choice. It is not unreasonable to believe 

that dwelling on these charges and introducing evidence of an alibi for two 

dates in Kentucky would have opened the door to the State introducing an 

endless parade of evidence of other dates in States other than Kentucky. . . .

Appellant’s App. at 430-31.

We agree with the post-conviction court’s assessment that Evans’ counsel made 

the strategic decision not to dwell on the extraneous bank fraud charges. Indeed, Evans 
13

does not refute the post-conviction court’s assessment of his counsel’s strategy but, 

instead, merely reiterates his claim that this decision was prejudicial to him. We are not 

persuaded by Evans’ argument and we defer to his counsel’s trial strategy. See Mallory, 

954 N.E.2d at 936. Accordingly, Evans cannot show error on this issue.

No Resulting Prejudice

Evans is correct that prejudice is proven by showing that counsel’s errors were so 

serious as to deprive the defendant of a fair trial. Appellant’s Br. at 12. But Evans’ 

remaining three arguments fail to demonstrate a reasonable probability that, but for his 

counsel’s alleged errors, the result of the proceeding would have been different. See

Strickland, 466 U.S. at 694. Again, Evans’ remaining arguments are that his counsel 

failed to object to an allegedly defective jury instruction; they failed to investigate the 

authenticity of the State’s audio recording; and they permitted the State to introduce an 

inaccurate transcript of the State’s audio recording.

More specifically, Evans first asserts that his counsel ineffectively permitted the 

jury to receive an erroneous instruction on accomplice liability on the attempted murder 

charge. But even if this were an erroneous instruction, as discussed in our opinion on

Evans’ direct appeal, the State’s evidence overwhelmingly showed that Evans was the 

principal in Keedy’s attempted murder. It is, therefore, irrelevant how the jury was 

instructed with respect to accomplice liability.

Evans also contends that his trial counsel ineffectively failed to investigate the 

authenticity of the State’s audio recording. But the post-conviction court expressly found 

that “Evans has failed to prove that there were any intentional or unintentional alterations 
14

of the recording.” Appellant’s App. at 440. We are in no position to reconsider the postconviction court’s assessment of Evans’ evidence. See Lindsey, 888 N.E.2d at 322 

(discussing Hall, 849 N.E.2d at 468-69). Accordingly, in light of Evans’ failure to 

demonstrate any alterations to the audio recording, it is irrelevant whether his counsel 

investigated the authenticity of the State’s recording.

Finally, Evans complains that his counsel allowed the jury to see a transcript of the 

audio recording that did not accurately reflect the contents of the recording. But during 

his trial, the court specifically instructed the jury that the transcript was demonstrative 

only, and that, “if there is a discrepancy in what [you] read in the transcript and what you 

hear on the tape, . . . the best evidence will be what you hear on the tape.” Trial 

Transcript at 777-78. It is well settled that a court must presume that the jury followed 

the trial court’s instructions. Harris v. State, 824 N.E.2d 432, 440 (Ind. Ct. App. 2005). 

Thus, Evans cannot show that any discrepancy between the transcript and the audio 

recording was material to the jury’s deliberations. And, as a result, he cannot show that 

he was prejudiced by his counsel’s alleged error.

Conclusion

In sum, we affirm the post-conviction court’s judgment in all respects. Evans’ 

first stated issue is not proper for post-conviction review. And his claims of ineffective 

counsel are all without merit. The post-conviction court’s judgment denying Evans’ 

petition for post-conviction relief is affirmed.

Affirmed.

RILEY, J., and DARDEN, Sr.J., concur.