Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016 Page 1 of 20

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Jennifer M. Lukemeyer

Tyler D. Helmond

Voyles Zahn & Paul

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Eric P. Babbs

Deputy Attorney General 

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Kurt Hinkle,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 20, 2016

Court of Appeals Case No.

12A02-1508-PC-1040

Appeal from the Clinton Superior 

Court

The Honorable Justin H. Hunter, 

Judge

Trial Court Cause No.

12D01-1305-PC-415

Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016 Page 2 of 20

Statement of the Case

[1] Kurt Hinkle (“Hinkle”) appeals from the post-conviction court’s denial of his 

petition for post-conviction relief, in which he alleged, in relevant part, that he 

had received ineffective assistance of appellate counsel. Hinkle argues that the 

post-conviction court erred by denying his claim that his appellate counsel had 

rendered ineffective assistance when counsel failed to file a reply brief and failed 

to file a transfer petition or specifically inform him of the time period for filing a 

transfer petition. Concluding that Hinkle has failed to meet his burden of 

showing that the post-conviction court erred by denying relief on these

allegations of ineffective assistance of appellate counsel, we affirm the postconviction court’s judgment. 

[2] We affirm.

Issue

Whether the post-conviction court erred by denying postconviction relief on Hinkle’s claim of ineffective assistance of 

appellate counsel.

Facts

[3] The facts of Hinkle’s crimes were set forth in the memorandum decision from 

his direct appeal as follows:

K.G. was born [i]n . . . 1992. Hinkle was born [i]n . . . 1963. 

K.G. was fifteen years old during the summer of 2008, and was 

working her first job detasseling corn. Each morning, a bus 

would pick K.G. and her co-workers up at the convenience store 

where Hinkle worked. K.G. became familiar with Hinkle when
Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016 Page 3 of 20

she purchased chocolate donuts from the convenience store each 

morning while waiting for the bus. At some point, Hinkle, who 

was running for Clinton County Surveyor, gave K.G. a campaign 

button and asked K.G. to work on his campaign. K.G. agreed 

and soon after began attending campaign functions with Hinkle 

and his wife.

One day in late July or early August of 2008, K.G. went to the 

home Hinkle shared with his wife following a campaign event. 

While at the home, Hinkle took K.G. on a tour of the property. 

Hinkle led K.G. into a shed, grabbed K.G., and kissed her, 

putting his tongue in K.G.’s mouth. Hinkle then took K.G.’s 

shorts and underwear off, turned her around, and placed his 

penis in K.G.’s vagina. K.G. “didn’t know what to think” so she 

“just kind of . . . went along with it.” Tr. pp. 108-09. Hinkle 

stopped before completion.

Later that evening, Hinkle drove K.G. home following another 

campaign event. While driving along a “narrow country road in 

the middle of nowhere,” Hinkle suddenly stopped the vehicle. 

Tr. p. 116. Hinkle instructed K.G. to come over to the driver’s 

seat, “laid [her] down across the passenger seat,” and took her 

pants and underwear off. Tr. p. 116. Hinkle then engaged in 

sexual intercourse with K.G. Hinkle continued to engage in 

sexual intercourse with K.G. throughout the late summer and 

early fall of 2008. During this time, Hinkle and K.G. engaged in 

sexual intercourse “two or three times a week.” Tr. p. 119. K.G. 

testified that she engaged in sexual conduct with Hinkle “[c]ause 

he was nice to me.” Tr. p. 119.

On August 10, 2010, the State charged Hinkle with two counts of 

Class B felony sexual misconduct with a minor. December 7, 

2011, Hinkle filed a Motion in Limine concerning evidence of 

certain other alleged misconduct by Hinkle, i.e., evidence of a 

continuing relationship between Hinkle and K.G. after K.G. 

turned sixteen. On December 19, 2011, the State requested, and 

was subsequently granted, permission to amend the charging 
Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016 Page 4 of 20

information to include Count III, Class D felony performance 

before a minor that is harmful to minors. Hinkle subsequently 

filed a motion to sever Count III from the first two counts as well 

as multiple motions to dismiss Count III. Following a hearing, 

the trial court denied each of Hinkle’s pending motions. The 

State subsequently moved to dismiss Count III.

Following a two-day trial on February 28 and 29, 2012, the jury 

found Hinkle guilty of both counts of Class B felony sexual 

misconduct with a minor. On March 12, 2012, the trial court 

sentenced Hinkle to an aggregate eleven-year sentence, with nine 

of the eleven years executed in the Department of Correction and 

the remaining two years suspended to probation . . . . 

Hinkle v. State, No. 12A05-1204-CR-199, *1-2 (Ind. Ct. App. Nov. 15, 2012)

(footnotes omitted).

[4] Thereafter, Hinkle appealed his convictions and argued that “the trial court 

abused its discretion in admitting evidence at trial of his continuing relationship 

with K.G. after she turned sixteen, in violation of Indiana Evidence Rule 

404(b).” Id., slip op. at *2. Specifically, Hinkle’s appellate counsel1 argued that 

the evidence was inadmissible under Indiana Evidence Rule 404(b). Hinkle 

contended that the trial court had committed “reversible error” by admitting the 

evidence and that the admission resulted in a “fundamentally unfair trial.” 

(Hinkle’s Ex. 3 – Appellant’s Br. at 1, 8, 9). In the State’s brief, it argued that 

the trial court did not abuse its discretion by admitting the evidence. 

 

1 Hinkle’s appellate counsel was F. Scott Stuard.
Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016 Page 5 of 20

Additionally, the State argued that admission of evidence was harmless error 

and that the “evidence about Hinkle’s relationship with K.G. after she turned 

sixteen was used by both the State and the defense – by the defense to support a 

theory of acknowledging that sexual activity occurred but disputing its timing.” 

(Hinkle’s Ex. 3 – Appellee’s Br. at 5). Hinkle’s appellate counsel did not file an 

Appellant’s Reply Brief.

[5] When addressing Hinkle’s Rule 404(b) challenge to the admission of evidence, 

another panel of our Court explained that “‘[o]ur analysis of admissibility under 

Rule 404(b) necessarily incorporates the relevancy test of [Indiana Evidence] 

Rule 401 and the balancing test of [Indiana Evidence] Rule 403.’” Hinkle, No. 

12A05-1204-CR-199, slip op. at *2 (quoting Sanders v. State, 704 N.E.2d 119, 

123 (Ind. 1999)) (brackets added by Hinkle Court). Our Court noted the State’s 

arguments that the evidence was admitted merely to “show the ongoing nature 

of Hinkle and K.G.’s relationship” and that it was relevant to show that their 

relationship was not one of an “innocent friend” but was instead “characterized 

by Hinkle’s sexual interest in K.G.” Id. at *3 (internal citations omitted). After 

we recognized the fact that the trial court had given a limiting instruction and 

had “instructed the jury that the evidence was admitted for the sole purpose of 

showing the relationship between Hinkle and K.G.[,]” we addressed Hinkle’s 

admission of evidence issue as follows:

Without deciding whether the evidence of Hinkle and K.G.’s 

continuing relationship was relevant under Rule 401, we 

conclude that the admission of the evidence was, at most, 

harmless. Again, “the improper admission of evidence is 
Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016 Page 6 of 20

harmless error when the defendant’s conviction is supported by 

substantial independent evidence of guilt sufficient to satisfy the 

reviewing court that there is no substantial likelihood that the 

questioned evidence contributed to the conviction.” Ware [v. 

State], 816 N.E.2d [1167] at 1175 (Ind. Ct. App. 2004) (citing 

Hernandez [v. State], 785 N.E.2d [294] at 300 [(Ind. Ct. App. 

2003), trans. denied]). The record here demonstrates that Hinkle’s 

convictions are indeed supported by substantial independent 

evidence of guilt.

K.G. provided unequivocal testimony regarding her sexual 

encounters with Hinkle during the late-summer and early-fall of 

2008, including sexual intercourse in a shed on Hinkle’s property 

and in Hinkle’s car along a country road. These sexual 

encounters occurred when K.G. was fifteen years old. K.G. 

further testified that after the above-mentioned sexual encounters 

but prior to her sixteenth birthday, she and Hinkle engaged in 

sexual intercourse two or three times a week. Upon review, we 

are satisfied that, in light of K.G.’s unequivocal testimony 

regarding her sexual encounters with Hinkle which occurred 

before she turned sixteen, there is no substantial likelihood that 

the evidence of Hinkle’s relationship with K.G. after she reached 

the age of sixteen contributed to Hinkle’s conviction. As such, 

the admission of the challenged evidence, to the extent improper, 

was harmless. See Ware, 816 N.E.2d at 1175.

Id.

[6] On November 15, 2012, the same day that our Court issued the memorandum 

decision in Hinkle’s appeal, Hinkle’s appellate counsel sent Hinkle a letter 

along with a copy of our Court’s memorandum decision. Hinkle’s appellate 

counsel informed him that “[u]fortunately the Court ha[d] affirmed the trial 

court’s decision.” (Hinkle’s Ex. 4). The letter also instructed Hinkle of the 

following: 
Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016 Page 7 of 20

If you wish to pursue this further, you may petition the Indiana 

Supreme Court to have this matter transferred to them for further 

consideration. Please let me know if you wish to do this so that I 

can inform the Court.

If you have any questions, please contact my office.

(Hinkle’s Ex. 4).

[7] Subsequently, on February 8, 2013, Hinkle’s appellate counsel sent Hinkle 

another letter, which provided, in relevant part:

I recently received a letter from you dated January 22nd. 

However, this is the first correspondence which I have received 

from you regarding pursuing your case further. Normally, the 

standard process for contesting a denial of an appeal is to petition 

the Court to have that decision transferred to the Supreme Court. 

However, you only have thirty days from the date the decision is 

reached to pursue that route. Therefore, the time has passed for 

you to request a transfer to the Supreme Court and you cannot 

challenge the decision through that means.

(Hinkle’s Ex. 5).

[8] On April 10, 2013, Hinkle filed a pro se petition for post-conviction relief. 

Thereafter, Hinkle obtained counsel and filed an amended post-conviction 

petition. In Hinkle’s amended petition, he alleged, in relevant part, that he was 

denied the effective assistance of appellate counsel. Specifically, Hinkle alleged 

that his appellate counsel had rendered ineffective assistance by: (1) failing to

file a reply brief to address harmless error; and (2) failing to file a petition for 

transfer or notify him of the deadline to file a petition to transfer, which, he 

argued, resulted in a complete denial of counsel that should be considered 
Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016 Page 8 of 20

under the standard set out in U.S. v. Cronic, 466 U.S. 648 (1984), rather than 

under the Strickland standard.2 

[9] On February 10, 2015, the post-conviction court held a hearing on Hinkle’s 

petition. Hinkle did not call his appellate counsel as a witness. Instead, he 

testified on his own behalf, and he called Joel Schumm (“Schumm”), an 

attorney and law professor, as a witness. Additionally, Hinkle introduced the 

following as exhibits: the trial transcript; the two appellate briefs; this Court’s 

memorandum decision; the November 2012 and February 2013 letters he had 

received from his appellate attorney; Schumm’s curriculum vitae; and a chapter

from an appellate practice manual authored by Schumm.

3

 

[10] During the hearing, Hinkle acknowledged that, on November 15, 2012, his 

appellate attorney sent him a copy of this Court’s memorandum decision

affirming his conviction and a letter notifying him that he could file a petition to 

transfer. Hinkle testified that, on December 4, 2012, he wrote his appellate 

attorney a letter and requested that he file a transfer petition. Hinkle did not 

introduce a copy of this letter into evidence. Hinkle also testified that he sent 

 

2 Hinkle also alleged that his appellate counsel rendered ineffective assistance by failing to raise a sentencing 

argument. He does not argue this claim on appeal.

3 The chapter was entitled “After the Appellate Opinion is Issued” and was part of the Appellate Practice 

Manual that Schumm wrote for the Indiana Public Defender Council.
Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016 Page 9 of 20

his attorney another letter on January 22, 2013 to check on the status of the 

appeal. He did not introduce a copy of that letter into evidence.4 

[11] Upon Hinkle’s request, the trial court recognized Schumm as an “expert”

witness “on matters of appellate procedure and substantive appellate law . . . 

within the State of Indiana.” (Tr. 35). Schumm opined that Hinkle’s appellate 

counsel’s failure to file a reply brief, failure to file a transfer petition, and failure 

to communicate the specific transfer procedure to Hinkle constituted deficient 

performance. 

[12] In regard to Hinkle’s claim that his appellate counsel had rendered ineffective 

assistance by failing to file a reply brief, Schumm testified that he generally 

advises his students to file a reply brief “in almost every case.” (Tr. 38). 

Schumm testified that Hinkle’s appellate counsel should have filed a reply brief 

to respond to the State’s harmless error argument because counsel had not preemptively addressed it in his opening brief. Schumm testified that appellate 

counsel’s failure to file a reply brief addressing the harmless error argument was 

“almost an implicit concession” of the argument. (Tr. 39). On crossexamination, Schumm acknowledged that Hinkle’s appellate counsel had 

argued Hinkle had been denied a fair trial by the admission of the challenged 

evidence, but he opined that he still should have filed a reply brief to respond to 

 

4 At the end of the post-conviction hearing, upon a question posed by the trial court to the attorneys, the 

parties explained that appellate counsel’s file had been stored in another attorney’s office and had been 

shredded by that office’s staff.
Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016 Page 10 of 20

the harmless error argument because, based on his “time um clerking at the 

Court of Appeals and talking to people there[,]” the failure to file a reply brief to 

respond to the argument would be taken as “sort of a passive assumption that it 

must be because there’s nothing to say on that issue.” (Tr. 63). 

[13] Schumm also testified that appellate counsel’s November 2012 letter notifying 

Hinkle of the option of filing a petition to transfer was “inadequate” because it 

did not set forth the specific deadline and procedure for filing such a petition. 

(Tr. 40). Additionally, Schumm testified that appellate counsel’s failure to file a 

petition to transfer was “not much different than not having a lawyer at all.” 

(Tr. 42). He suggested that such failure could be considered as a denial of 

representation at a critical stage under U.S. v. Cronic, which would mean that 

Hinkle would not need to show prejudice. Schumm testified how he, 

personally, handles the process for filing a transfer petition. He opined that 

Hinkle’s admission of 404(b) evidence raised on direct appeal was a “good 

issue” that could have been raised in a transfer petition, and he testified that he 

would have filed a transfer petition. (Tr. 42). Schumm also testified that a 

petition to transfer could have been based on the Court of Appeals’ lack of 

analysis on the admission of evidence issue, opining that “the Court of Appeals 

could have more explicitly said it’s an error as opposed to they’re not gonna 

address or they’re gonna assume it’s an error.” (Tr. 50). 

[14] The post-conviction court took the matter under advisement and, later, issued 

an order denying Hinkle’s petition for post-conviction relief on all claims of 

ineffective assistance of appellate counsel. The post-conviction court rejected 
Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016 Page 11 of 20

Hinkle’s argument that his claims should be reviewed under the Cronic standard 

instead of the Strickland standard. The post-conviction court also found that 

Hinkle had failed to show that his appellate counsel’s performance was 

deficient and had failed to show prejudice. Hinkle then filed a motion to 

correct error, which the trial court denied. Hinkle now appeals.

Decision

[15] Hinkle appeals the post-conviction court’s order denying post-conviction relief 

on his claims of ineffective assistance of appellate counsel. Our standard of 

review in post-conviction proceedings is well settled. 

We observe that post-conviction proceedings do not grant a 

petitioner a “super-appeal” but are limited to those issues 

available under the Indiana Post-Conviction Rules. Postconviction proceedings are civil in nature, and petitioners bear 

the burden of proving their grounds for relief by a preponderance 

of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner 

who appeals the denial of PCR faces a rigorous standard of 

review, as the reviewing court may consider only the evidence 

and the reasonable inferences supporting the judgment of the 

post-conviction court. The appellate court must accept the postconviction court’s findings of fact and may reverse only if the 

findings are clearly erroneous. If a PCR petitioner was denied 

relief, he or she must show that the evidence as a whole leads 

unerringly and unmistakably to an opposite conclusion than that 

reached by the post-conviction court.

Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal case 

citations omitted), trans. denied. Additionally, “[w]e will not reweigh the 

evidence or judge the credibility of the witnesses; we examine only the 
Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016 Page 12 of 20

probative evidence and reasonable inferences that support the decision of the 

post-conviction court.” Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007), 

reh’g denied, cert. denied.

[16] Hinkle argues that the post-conviction court erred by denying post-conviction 

relief on his claim of ineffective assistance of appellate counsel. Specifically, 

Hinkle contends that his appellate counsel rendered ineffective assistance when 

counsel: (1) failed to file a reply brief; and (2) failed to file a transfer petition or 

inform him of the deadline for filing a transfer petition. 

[17] We apply the same standard of review to claims of ineffective assistance of 

appellate counsel as we apply to claims of ineffective assistance of trial counsel. 

Williams v. State, 724 N.E.2d 1070, 1078 (Ind. 2000), reh’g denied, cert. denied. A 

claim of ineffective assistance of counsel requires a showing that: (1) counsel’s 

performance was deficient by falling below an objective standard of 

reasonableness based on prevailing professional norms; and (2) counsel’s 

performance prejudiced the defendant such that “‘there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444 

(Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984), reh’g 

denied), reh’g denied, cert. denied. “A reasonable probability arises when there is a 

‘probability sufficient to undermine confidence in the outcome.’” Grinstead v. 

State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466 U.S. at 694). 

“Failure to satisfy either of the two prongs will cause the claim to fail.” Gulzar 

v. State, 971 N.E.2d 1258, 1261 (Ind. Ct. App. 2012) (citing French v. State, 778 
Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016 Page 13 of 20

N.E.2d 816, 824 (Ind. 2002)), trans. denied. However, “[i]f we can easily 

dismiss an ineffective assistance claim based upon the prejudice prong, we may 

do so without addressing whether counsel’s performance was deficient.” Baer v. 

State, 942 N.E.2d 80, 91 (Ind. 2011), reh’g denied. “Indeed, most ineffective 

assistance of counsel claims can be resolved by a prejudice inquiry alone.” 

French, 778 N.E.2d at 824.5

[18] In order to succeed on an ineffective assistance of counsel claim, “a petitioner 

must overcome the ‘strong presumption that counsel rendered adequate 

assistance and made all significant decisions in the exercise of reasonable 

professional judgment.’” State v. Greene, 16 N.E.3d 416, 419 (Ind. 2014) 

(quoting Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002), reh’g denied, cert. 

denied). “A defendant alleging the ineffective assistance of appellate counsel on 

direct appeal bears a rigorous burden.” Conner v. State, 711 N.E.2d 1238, 1252 

(Ind. 1999), reh’g denied, cert. denied. “Because the decision regarding what 

issues to raise and what arguments to make is ‘one of the most important 

strategic decisions to be made by appellate counsel,’ ineffectiveness is very 

 

5 When discussing the prejudice prong, the State seems to suggest that Hinkle was also required to show that 

his convictions were “fundamentally unfair or unreliable.” (State’s Br. 19). In Hinkle’s Reply Brief, he also 

discusses fundamental unfairness as if it is a requirement in addition to prejudice. Our Indiana Supreme 

Court, however, has clarified that “whether the result of the proceeding was fundamentally fair, is not a 

discrete third prong of the IAC analysis . . . Rather, it enters into the determination of whether the likelihood 

of a different outcome qualifies as prejudice in the Strickland sense.” Coleman v. State, 741 N.E.2d 697, 699 

(Ind. 2000) (citing Williams v. Taylor, 529 U.S. 362, 391-92 (2000)), reh’g denied, cert. denied. 
Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016 Page 14 of 20

rarely found.” Id. (quoting Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1997), 

reh’g denied, cert. denied). 

[19] Ineffective assistance of appellate counsel claims “‘generally fall into three basic 

categories: (1) denial of access to an appeal, (2) waiver of issues, and (3) failure 

to present issues well.’” Garrett v. State, 992 N.E.2d 710, 724 (Ind. 2013) 

(quoting Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006)). Hinkle asserts that 

his ineffective assistance of appellate counsel claims are based upon categories 

(1) and (2). Specifically, he contends that his appellate counsel’s failure to file a 

reply brief responding to the State’s harmless error argument constituted the

waiver of an issue and that his counsel’s failure to file a transfer petition and 

inform him of the transfer-filing deadline constituted the denial of access to an 

appeal. The State, on the other hand, contends that Hinkle’s claim regarding 

counsel’s failure to file a reply brief should be reviewed as a category (3) claim

(failure to present issues well) and that Hinkle’s arguments regarding transfer 

should be reviewed as category (2) claims (waiver of issues). 

[20] We, however, conclude that, in this specific instance, all of Hinkle’s arguments 

regarding the filing of a reply brief and transfer would more properly be framed 

as whether appellate counsel failed to present the evidentiary issue well.6

 

6 Contrary to Hinkle’s contention, his appellate counsel did not waive an issue. Harmless error was not an 

appellate issue to be raised by appellate counsel. Hinkle’s counsel raised an evidentiary issue on appeal. Any 

response to the State’s harmless error argument would have been addressing the evidentiary issue already 

raised. Thus, his counsel’s lack of response to the State’s harmless error argument would be more 

appropriately considered a failure to present that evidentiary issue well. 
Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016 Page 15 of 20

“[C]laims of inadequate presentation of certain issues, as contrasted with the 

denial of access to an appeal or waiver of issues, are the most difficult for 

defendants to advance and for reviewing tribunals to support.” Hollowell v. 

State, 19 N.E.3d 263, 270 (Ind. 2014) (citing Bieghler, 690 N.E.2d at 195). 

“[T]his is so because such claims essentially require the reviewing court to 

reexamine and take another look at specific issues it has already adjudicated to 

determine ‘whether the new record citations, case references, or arguments

would have had any marginal effect on their previous decision.’” Id. (quoting 

Bieghler, 690 N.E.2d at 195)) (emphasis added by Hollowell Court).

[21] We need not, however, decide whether appellate counsel’s performance was 

deficient because Hinkle has not shown prejudice on any of his ineffective 

assistance of appellate counsel claims. See Young v. State, 746 N.E.2d 920, 927 

(Ind. 2001) (explaining that it was not necessary to address the allegations of 

deficient performance where the petitioner had failed to establish prejudice and 

affirming the trial court’s denial of post-conviction relief; Coleman, 741 N.E.2d 

at 701 n.4 (quoting Strickland, 466 U.S. at 697) (explaining that “‘[i]f it is easier 

to dispose of an ineffectiveness claim on the ground of lack of sufficient 

prejudice, which we expect will often be so, that course should be followed’”).

 

Additionally, appellate counsel’s failure to file a transfer petition or inform Hinkle of the specific time limits 

for filing transfer was not a denial of access to an appeal. Hinkle’s appellate counsel perfected an appeal, 

filed an appellate brief, and obtained an appellate opinion. Because a transfer petition is a means to seek our 

Indiana Supreme Court’s review of an argument previously raised in an appeal to our Court, Hinkle 

arguments regarding transfer would be more appropriately considered a failure to present that evidentiary 

issue well.
Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016 Page 16 of 20

[22] To succeed on his ineffective appellate counsel claim, “the prejudice-prong of 

Strickland require[d] [Hinkle] to demonstrate a reasonable probability that, but 

for his counsel’s errors, the result of his direct appeal would have been 

different.” See Martin v. State, 760 N.E.2d 597, 600 (Ind. 2002) (citing Strickland,

466 U.S. at 694). Thus, to show prejudice on his ineffective appellate counsel 

claim regarding the lack of a reply brief, Hinkle was required to show that but 

for his appellate counsel’s failure to file a reply brief discussing harmless error, 

this Court would have reversed the trial court’s ruling on the evidentiary issue

and reversed his conviction. Additionally, to show prejudice on his ineffective 

appellate counsel claim regarding the lack of a transfer petition, Hinkle was 

required to show that but for his appellate counsel’s failure to file a transfer 

petition or specifically inform him of the transfer timelines, the Indiana 

Supreme Court would have granted transfer, reversed the trial court’s ruling on 

the evidentiary issue, and reversed his conviction.7

 

7 Hinkle contends that, instead of applying the Strickland analysis, we should review his ineffective appellate 

counsel claims pursuant to Cronic and presume prejudice. “Cronic established, in effect, a narrow exception to 

the two-pronged Strickland test[.]” Conner, 711 N.E.2d at 1254. “In Cronic, the U.S. Supreme Court rejected 

a claim of ineffective assistance of counsel but did suggest that, in limited circumstances of extreme 

magnitude, ‘a presumption of ineffectiveness’ may be justified and that such circumstances are, in and of 

themselves, ‘sufficient [to establish a claim of ineffective assistance] without inquiry into counsel’s actual 

performance at trial.’” Id. (quoting Cronic, 466 U.S. at 662) (brackets added by Conner Court). 

Cronic delineates three circumstances that avoid the Strickland requirement that a defendant 

establish both deficient performance and actual prejudice: (1) the complete denial of 

counsel; (2) a complete failure by counsel to subject the State’s case to meaningful 

adversarial testing; and (3) the circumstances of the trial are such that, although counsel is 

available to assist the accused during trial, the likelihood that any lawyer, even a fully 

competent one, could provide effective assistance is so small that a presumption of 

prejudice is appropriate without inquiry into the actual conduct of the trial.
Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016 Page 17 of 20

[23] Hinkle, however, has not shown that there is a reasonable probability that the 

result of his direct appeal would have been different had his appellate counsel 

filed a reply brief or a transfer petition. Essentially, Hinkle’s argument 

regarding prejudice on his ineffective assistance of appellate counsel claims 

boils down to a mere assertion that he was prejudiced by counsel’s failure to file 

a reply brief and transfer petition. See (Hinkle’s Br. 9) (arguing that appellate 

counsel’s failure to file a reply brief “prejudiced Hinkle”); (Hinkle’s Br. 15, 16) 

(contending that he was prejudiced because the “remedy” of seeking transfer 

was “lost”). He attempts to support his assertion of prejudice by relying on the 

“uncontroverted testimony” of Schumm. (Hinkle’s Reply Br. 7). In other 

words, Hinkle contends that the post-conviction court should have determined 

that he was prejudiced by counsel’s actions because Schumm testified that 

Hinkle’s actions constituted deficient performance.

[24] We acknowledge that the trial court recognized Schumm as an “expert” on 

“matters of appellate procedure and substantive appellate law . . . within the 

 

Harrison v. State, 707 N.E.2d 767, 774 (Ind. 1999) (internal quotations and citations omitted), reh’g denied, cert. 

denied.

Hinkle contends that he was not required to show prejudice because, in accordance with Cronic, his appellate 

counsel’s actions effectively equated to a complete denial of counsel. The post-conviction court rejected this 

argument, as do we. Aside from Hinkle’s reliance on Schumm’s testimony that his appellate counsel’s 

representation was “‘not much different than not having a lawyer at all[,]’” (Hinkle’s Br. 14) (quoting Tr. 42), 

he has not shown how he was completely denied counsel by his appellate counsel who perfected an appeal, 

filed an appellate brief, and obtained an appellate opinion. Accordingly, the Cronic presumption of prejudice 

does not apply, and Hinkle is required to meet his burden of showing prejudice under Strickland. See Conner, 

711 N.E.2d at 659 n.26 (“If the Cronic exception does not apply, the defendant must fulfill the individualized 

requirements of Strickland.”).
Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016 Page 18 of 20

State of Indiana.” (Tr. 35). Under Evidence Rule 702(a), a witness who is 

“qualified as an expert by knowledge, skill, experience, training, or education 

may testify in the form of an opinion or otherwise if the expert’s scientific, 

technical, or other specialized knowledge will help the trier of fact to 

understand the evidence or to determine a fact in issue.” However, “[t]he postconviction court is the sole judge of the evidence and the credibility of the 

witnesses[,]” Hall v. State, 849 N.E.2d 466, 468-69 (Ind. 2006), and it was up to 

the post-conviction court to determine whether Schumm’s testimony helped it

in its determination of the ineffective assistance of appellate counsel issue.

[25] The trial court made the following findings and conclusions, which indicate 

that it did not place great weight upon Schumm’s testimony regarding Hinkle’s 

ineffective appellate counsel claims:

31. Professor Schumm testified that [appellate counsel] should 

“absolutely” have filed a reply brief.

32. Pursuant to Appellate Rule 63 (G) filing of reply briefs is 

discretionary.

33. [Appellate counsel] did not address harmless error in the 

opening brief and the State argued in its brief that the admission 

of the contested evidence was harmless.

34. Professor Schumm testified that in his experience, the 

Indiana Court of Appeals will “base its decision on the briefs. 

And if there’s nothing from one side then the argument from the 

other side is very likely to prevail.” (Tr. 39).

35. Appellate courts are “not limited in [their] review of issues to 

the facts and cases cited and arguments raised by the appellant’s 
Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016 Page 19 of 20

counsel. [The Court of Appeals] commonly review[s] relevant 

portions of the record, perform[s] separate legal research, and 

often decide[s] cases based on legal arguments and reasoning not 

advanced by either party.” Bieghler v. State, 690 N.E.2d 188, 193 

([Ind.] 1997).

* * * * *

46. Hinkle relied on the testimony of Professor Schumm for the 

proposition that prejudice accrued to Hinkle through the lack of a 

rebuttal argument on the issue of harmless error. This presumes 

that, in the face of argument by the State on this issue, the 

appellate court had no choice but to accept the State’s position.

47. The discussion in Bieghler makes clear that appellate courts 

are not confined to the four corners of the briefs in making their 

decisions. “While impressive appellate advocacy can influence 

the decisions appellate judges make and does make our task 

easier, a less than top notch performance does not necessarily 

prevent us from appreciating the full measure of an appellant’s 

claim.” ([Bieghler, 690 N.E.2d at]195). The harmless error 

argument is one which is frequently encountered by our appellate 

courts and is precisely the type of claim which would enjoy the 

court’s enhanced scrutiny beyond the briefs. Clearly, in Hinkle’s 

review such was the case as the opinion states that the “record 

here demonstrates that Hinkle’s convictions are indeed supported 

by substantial evidence of guilt.” (Op. p.6)[.]

(App. 14-16).

[26] The post-conviction court ultimately determined that Hinkle had failed to meet 

his burden of showing deficient performance and resulting prejudice. The 

knowledge of determining the effectiveness of appellate counsel was within the 

post-conviction court’s realm of knowledge, and we will not find error in the 

post-conviction court’s conclusion merely because Hinkle’s witness testified 
Court of Appeals of Indiana | Memorandum Decision 12A02-1508-PC-1040 | May 20, 2016 Page 20 of 20

otherwise. See Stephenson, 864 N.E.2d at 1028 (“We will not reweigh the 

evidence or judge the credibility of the witnesses; we examine only the 

probative evidence and reasonable inferences that support the decision of the 

post-conviction court.”).8 

[27] Because Hinkle has failed to show prejudice in regard to his ineffective 

assistance of appellate counsel claims, he has failed to meet his burden of 

showing that the post-conviction court erred by denying relief on these claims. 

Accordingly, we affirm the post-conviction court’s denial of post-conviction 

relief. 

[28] Affirmed.

Baker, J., and Bradford, J., concur. 

 

8 We also note that, pursuant to Indiana Evidence Rule 704(b), a witness “may not testify to opinions 

concerning . . . legal conclusions.” See also Hoglund v. State, 962 N.E.2d 1230, 1234 n.3 (Ind. 2012) (noting 

that “there is authority for the proposition that Rule 704(b) was designed to preserve existing Indiana law by 

providing that witnesses may not testify to certain specific subjects”) (citing 13 Robert Lowell Miller, Jr., 

Indiana Practice Series, Indiana Evidence § 704.201 at 589 (3d ed. 2007)), reh’g denied.