HAMMAN v. STATE (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Christopher J. Hamman (“Hamman”), pro se, appeals the post-conviction court's denial of his petition for post-conviction relief. Hamman argues that the post-conviction court erred by denying his claim of ineffective assistance of trial and sentencing counsel. Concluding that Hamman has failed to meet his burden of showing that the post-conviction court erred, we affirm the post-conviction court's judgment.

[2] We affirm.

Issue

Whether the post-conviction court erred by denying post-conviction relief to Hamman.

Facts

[3] The relevant facts of Hamman's underlying offenses, as set forth by this Court in Hamman's direct appeal, are as follows:

K.H. is the child of Hamman and his wife. In November 2007, when K.H. was eleven, Hamman's wife left the family. In December 2007, Hamman began molesting K.H. One night, Hamman laid down beside K.H. in her bed and cuddled her as she tried to fall asleep. Hamman then moved his hand under K.H.’s pajamas and inserted his fingers into her vagina. K.H. felt Hamman get an erection as he touched her. The encounter lasted between ten and twenty minutes.

This kind of encounter occurred two or three times a month for several years. Hamman would sometimes be naked. K.H. recalled waking up naked on multiple occasions but having no recollection of what had happened. Hamman often spoke with K.H. about keeping the molestations a secret. Hamman would manipulate K.H. to stay silent by buying her gifts, including a pony, and by giving her money. Once in middle school, K.H. told a counselor what was happening, but Hamman told K.H. to drop the report, and the next day K.H. told the counselor she had lied because she wanted attention.

The molestations continued until 2010, when Hamman's girlfriend moved in. In 2016, when K.H. was nineteen years old, she moved in with her boyfriend. K.H. returned to Hamman's house to retrieve some of her belongings while Hamman was on vacation. Hamman believed K.H.’s boyfriend had broken into his home and damaged his truck, so Hamman reported the incident to the police. The police interviewed K.H., who showed Detective Rice text messages between herself and Hamman regarding what had happened at Hamman's house. After seeing the messages, Detective Rice became concerned and questioned K.H. about her relationship with Hamman. K.H. became withdrawn, but eventually told Detective Rice about the molestations.

In September 2017, Detective Rice interviewed Hamman. The interview began with discussion of Hamman's truck, but shifted to Hamman's relationship with K.H. Initially, Hamman admitted cuddling with K.H. in her bed but denied ever touching her inappropriately, and he also denied ever being naked while cuddling with K.H. Then, Hamman admitted to touching K.H.’s vagina once, but he claimed he did so to check if it was swollen after K.H. complained that it was. Hamman denied ever digitally penetrating K.H. Finally, Hamman confessed he rubbed K.H.’s vagina a few times because he was curious what it felt like. Hamman also admitted he became aroused and went to his bedroom to masturbate.

Hamman v. State, No. 17A03-1708-CR-1870 at *1-2 (mem.) (Ind. Ct. App. Sept. 4, 2019), trans. denied.

[4] The State charged Hamman with Class A felony child molesting and Class B felony incest. Specifically, the State charged that Hamman had committed the offenses between October 31, 2007 through October 12, 2010, when K.H. was less than fourteen years old. During that time period, K.H. was between eleven and thirteen years old.

[5] At Hamman's jury trial, Hamman was represented by retained counsel Kevin Likes (“Trial Counsel”). Hamman's theory of defense was that he did not molest K.H. and that K.H. was lying. During opening statements, Trial Counsel told the jury that K.H. would tell lies when she wanted “to get her way.” (Direct Appeal Tr. Vol. 2 at 165). Trial Counsel also asserted that K.H. had previously lied about allegations against Hamman and then had recanted them. Additionally, Trial Counsel told the jury that they would see a video of a police interrogation with Hamman and asserted that the detective had gotten Hamman “to say things in response to leading questions.” (Direct Appeal Tr. Vol. 2 at 169).

[6] During K.H.’s direct examination, she testified that Hamman had “fingered” her “[i]n [her] vagina” around December 2007 and that he had done so a few times a month until 2010. (Direct Appeal Tr. Vol. 2 at 183). She also discussed the time in 2010 when she had told her school counselor about Hamman's offenses and how Hamman had told K.H. that she needed to tell the school counselor that she had lied about the allegations.

[7] Trial Counsel thoroughly cross-examined K.H., including questioning her about the current molestation allegations that she had made against Hamman and about K.H.’s delay in reporting the allegations to anyone. Trial Counsel also cross-examined K.H. about the allegations that she had recanted in 2010. Moreover, Trial Counsel had K.H. acknowledge that she had kept a diary but that she had never written anything in her diary about Hamman molesting her. Additionally, Trial Counsel cross-examined K.H. about her diary and two school assignments and introduced them as defense exhibits. Trial Counsel questioned K.H. about some of her diary entries that she had written in late 2014 and early 2015 when she was eighteen years old. In those diary entries, K.H. had written about telling lies, and she had written positive things about Hamman. Trial Counsel had K.H. read those entries to the jury. Trial Counsel also questioned K.H. about her two school assignments in which she had written positive things about Hamman and about how she appreciated him as a parent.

[8] When Detective Rice testified, the State introduced and played the video of the police interview that Hamman had had with Detective Rice.¹ During that interview, Hamman initially denied that he had inappropriately touched K.H. Hamman told the detective that K.H. had left a diary at his house when she had moved from his house and that she had written an entry in which she had thanked him for all he had done for her. The detective told Hamman that he understood that K.H. liked to write her thoughts on paper and that she had a couple of diaries. Hamman said that he only knew of one diary. The detective then told Hamman that he “guess[ed]” that K.H. had a “couple” of diaries but that he did not know what they said. (Direct Appeal Tr. Vol. 3 at 65). The detective subsequently stated that K.H. had “multiple” diaries and that she had allowed the detective to look at one. (Direct Appeal Tr. Vol. 3 at 89). Later in the interview, Hamman admitted that he had touched K.H.’s vagina. Hamman told the detective that he had done so on only one occasion because K.H. had complained that her vagina was swollen. Hamman stated that he had touched K.H.’s vagina “just around the outside” and that he had “just touched it with [his] fingers a couple of times and ․ went around it[.]” (Direct Appeal Tr. Vol. 3 at 99, 100). Hamman also acknowledged that he had “rubbed” K.H.’s clitoris and repeatedly stated that he had done so only the one time when K.H. had said that she was swollen. (Direct Appeal Tr. Vol. 3 at 101). Hamman later stated that he had rubbed K.H.’s clitoris and vagina and had felt the “opening” because he “was curious” and “wanted to see what it felt like[.]” (Direct Appeal Tr. Vol. 3 at 112, 113). After the video had been played for the jury, one juror submitted a question for Detective Rice to ask him about the “other” diaries. (Direct Appeal Vol. 3 at 140). In response to the question, Detective Rice acknowledged that he had mentioned “other diaries” during the police interview, and he stated that he was “not sure what that meant” or when any diaries would have been written. (Direct Appeal Tr. Vol. 3 at 140-41).

[9] Hamman testified in his own defense at his jury trial. Hamman testified that, during his police interview, he had lied about touching K.H. because he had been scared and had wanted to leave the interview to go to a fair with his fiancé. During cross-examination, Hamman acknowledged that he had touched K.H.’s vaginal area, and he said he had done so because she had been complaining about it being swollen. When the State cross-examined Hamman about his police interview admission that he had rubbed K.H.’s clitoris because he had been curious, Hamman responded that he had not been curious and that he had touched K.H. because of her complaints about swelling.

[10] During the State's closing argument, the prosecutor told the jurors that they needed to decide whether Hamman had engaged in sexual deviate conduct with K.H., and the prosecutor discussed the definition of that term. The prosecutor argued that Hamman had penetrated K.H.’s sex organ with an object and pointed to K.H.’s testimony that Hamman had touched the inside of her vaginal area with his finger. Additionally, the prosecutor reminded the jury about the video of Hamman's police interview, during which he had repeatedly admitted that he had touched K.H.’s clitoris and the opening of her vagina on one occasion. During the State's rebuttal argument, the prosecutor also argued that Hamman had acknowledged “over and over” in his police interview and also on the witness stand that he had inappropriately touched K.H. (Direct Appeal Tr. Vol. 3 at 221).

[11] During Hamman's closing argument, Trial Counsel argued that the jury should question K.H.’s credibility, especially since she had admitted to lying in the past and had recanted a prior allegation against Hamman. Trial Counsel also directed the jury's attention to K.H.’s diary, in which she had written “her innermost thoughts” but had not written about Hamman molesting her. (Direct Appeal Tr. Vol. 3 at 222). Trial Counsel told the jury that they had heard the detective mention other diaries but that the State had never presented those diaries into evidence. Additionally, Trial Counsel argued that if K.H. had had other diaries that had mentioned Hamman molesting K.H., then the jury would have seen them. In regard to the video recording of Hamman's police interview, Trial Counsel argued that Hamman had admitted that he had inappropriately touched K.H. only because the detective had intimidated Hamman into making such admissions. Trial Counsel told the jury that, during the police interview, Hamman had stated “very clear[ly] over and over and over again that he [had] not touch[ed] his daughter in any sexual fashion and [that] he [had] not penetrate[d] her vagina.” (Direct Appeal Tr. Vol. 3 at 225).

[12] The jury found Hamman guilty as charged. Following Hamman's trial, Hamman changed counsel for his sentencing hearing and was represented by retained counsel Robert Gevers (“Sentencing Counsel”).

[13] During the sentencing hearing, Sentencing Counsel presented testimony from Hamman's mother (“Hamman's mother”), sister (“Hamman's sister”), and pastor (“Hamman's pastor”), and they testified about Hamman's good character and reputation as a hard worker and about how he had taken care of K.H. Sentencing Counsel also presented argument on mitigating circumstances. Additionally, Sentencing Counsel told the trial court that counsel agreed with the State that the restricted felon statute, Indiana Code § 35-50-2-2, applied to Hamman's sentencing on his child molesting conviction and that the statute required a non-suspendable sentence of thirty years. Sentencing Counsel acknowledged that, although Indiana Code § 35-50-2-2 had been repealed, the statute was applicable because it had been in effect at the time of Hamman's offense.² Sentencing Counsel asked the trial court to impose concurrent sentences and an aggregate thirty-year sentence for both convictions.

[14] When sentencing Hamman, the trial court noted that then forty-nine-year-old Hamman did not have any criminal history and found that as a mitigating circumstance. The trial court found two aggravating circumstances: (1) Hamman's “very serious and egregious” violation of his position of trust with K.H., which the trial court considered to be a “very serious aggravating factor” because K.H. had been “estranged from her mother” and Hamman had been K.H.’s “sole support system[;]” and (2) Hamman had molested K.H. “multiple times over multiple years[.]” (Direct Appeal Tr. Vol. 4 at 30). For Hamman's Class A felony child molesting conviction, the trial court imposed a forty (40) year sentence, with thirty-five (35) years executed and five (5) years suspended to probation. The trial court specifically noted that it would have sentenced Hamman to forty years for his child molesting conviction whether or not there had been a statutory required non-suspendable sentence of thirty years. For Hamman's incest conviction, the trial court imposed a ten (10) year sentence and ordered it to be served concurrently to his child molesting sentence. Thus, the trial court imposed an aggregate sentence of forty (40) years, with thirty-five (35) years executed in the Indiana Department of Correction and five (5) years suspended to probation.

[15] Thereafter, Hamman filed a direct appeal and was represented by counsel. Hamman appealed his convictions and sentence and raised the following five arguments on direct appeal: (1) there was insufficient evidence to support Hamman's convictions; (2) the trial court abused its discretion by admitting some of K.H.’s testimony and Detective Rice's testimony; (3) Hamman's convictions for child molesting and incest violated his constitutional right to be free from double jeopardy; (4) Hamman's sentence was inappropriate; and (5) the trial court erred by imposing one of Hamman's probation conditions regarding internet use. A panel of this Court reviewed Hamman's appellate arguments and held that: (1) the evidence, specifically K.H.’s testimony, was sufficient to support Hamman's convictions; (2) the trial court did not abuse its discretion by admitting K.H.’s testimony, and the admission of Detective Rice's testimony was harmless error where it was cumulative of K.H.’s testimony; (3) Hamman's convictions for child molesting and incest violated double jeopardy; (4) Hamman's sentence was not inappropriate; and (5) the trial court erred by using a former version of the probation condition on internet use. Accordingly, we affirmed Hamman's Class A felony child molesting conviction and sentence, vacated his incest conviction, and remanded to the trial court with instructions to impose the revised probation condition on internet use.

[16] Thereafter, Hamman filed a pro se petition for post-conviction relief and then additional amended petitions. In Hamman's final amended petition, he alleged that he had received ineffective assistance of trial and sentencing counsel. Specifically, Hamman alleged that Trial Counsel had rendered ineffective assistance by failing to: (1) conduct adequate pretrial investigation regarding a witness to impeach K.H.’s testimony; and (2) object to alleged prosecutorial misconduct. In regard to Trial Counsel's failure to investigate and call an impeachment witness, Hamman alleged that no evidence had been presented at trial to corroborate K.H.’s molestation claim and that Trial Counsel should have called Hamman's niece (“Hamman's niece”) as a witness to impeach K.H.’s testimony. Hamman alleged that Hamman's niece could have testified that K.H. had made “similar accusations against [Hamman] numerous times throughout the years, but then [K.H. had] later admitted [that] she [had] made the accusations up in order to hurt [Hamman] for his enforcement of rules and discipline.” (App. Vol. 2 at 33). In regard to counsel's failure to object to the prosecutorial misconduct claim, Hamman alleged that Trial Counsel should have objected when the prosecutor had: (a) presented “false evidence” before the jury when it played the video of Hamman's police interview in which Detective Rice mentioned that K.H. had more than one diary; and (b) repeated a “false claim” during closing arguments that Hamman had admitted, during his police interview, that he had inappropriately touched K.H.’s vaginal area with his hand. (App. Vol. 2 at 31, 36, 42).

[17] Hamman alleged that Sentencing Counsel had rendered ineffective assistance by failing to: (1) adequately prepare for Hamman's sentencing hearing; and (2) submit evidence on his behalf. In regard to counsel's failure to investigate, Hamman alleged that Sentencing Counsel had failed to “adequately question[ ]” the sentencing witnesses who had testified and that Sentencing Counsel had “misinformed” the trial court on the law regarding his minimum sentence. (App. Vol. 2 at 48). In regard to counsel's failure to submit evidence, Hamman alleged that Sentencing Counsel should have presented Hamman's friend (“Hamman's friend”) as an additional character witness during the sentencing hearing. Hamman also argued that the cumulative effect of trial and sentencing counsels’ errors had prejudiced him.

[18] The post-conviction court held a hearing in January 2023. During the hearing, Hamman presented testimony from Trial Counsel, Sentencing Counsel, and Hamman's mother. He also introduced exhibits, including the appellate record from his direct appeal and affidavits from Hamman's sister, Hamman's friend, and Hamman's niece.³ Hamman's sister, who had testified at the sentencing hearing, averred that Sentencing Counsel had not contacted her prior to her sentencing testimony but that she could have told Sentencing Counsel about Hamman's “honesty and specific acts of kindness to others.” (Ex. Vol. at 5). Hamman's friend averred that Hamman had had “a very good reputation in the community” and that he had “never been questioned by police, lawyers[,] or anyone else regarding [Hamman's] reputation and character[.]” (Ex. Vol. at 3). Lastly, Hamman's niece averred that Hamman and K.H. “always appeared to have a great relationship” and that K.H. “sometimes quarreled with [Hamman] over the rules and regulations he enforced in their home.” (Ex. Vol. at 6). Hamman's niece also averred that she had never been “contacted by anyone and asked about these things[.]” (Ex. Vol. at 6).

[19] During the post-conviction hearing, Trial Counsel testified that he had prepared for Hamman's trial. Trial Counsel explained that he had not called Hamman's niece as a witness because it would not have been beneficial to Hamman to have Hamman's niece testify that K.H. had told her that Hamman had molested K.H. Trial Counsel also explained that it had not been necessary to have Hamman's niece testify that K.H. had recanted prior allegations against Hamman because Trial Counsel had cross examined K.H. about her recantation and had gotten K.H. to admit, during her cross-examination, that she had written in her diary that she “would lie in order to get her own way[.]” (Tr. Vol. 2 at 15). When Hamman asked why Trial Counsel had not objected to the detective's suggestion that K.H.’s diary contained allegations about the molestation, Trial Counsel explained that he had made objections during the trial when such objections were relevant. Additionally, Trial Counsel testified that he had not objected to the State's closing statement when the prosecutor had mentioned that Hamman had confessed because the jury had seen and heard the police interview video during which Hamman had confessed to touching K.H. Trial Counsel also explained that he had specifically cross-examined Detective Rice to get him to acknowledge that he had used “a very aggressive form of interrogation” with “a lot of leading questions[.]” (Tr. Vol. 2 at 16).

[20] Sentencing Counsel testified that he recalled representing Hamman for his sentencing hearing and that he generally reviewed any relevant sentencing statutes prior to a sentencing hearing. Hamman asked Sentencing Counsel if he had “incorrectly informed” the trial court that the minimum sentence that Hamman could receive was thirty years instead of twenty years. (Tr. Vol. 2 at 21). Sentencing Counsel indicated that he did not recall discussing a minimum sentence requirement with the trial court during Hamman's sentencing hearing but that the trial court would have known of the relevant sentencing requirements. Hamman did not question Sentencing Counsel about his preparation of the sentencing witness's or about why he had not called Hamman's friend as a witness.

[21] Thereafter, the post-conviction court issued an order denying Hamman's petition for post-conviction relief. The post-conviction court concluded, in relevant part, that “Hamman's evidence, such as it was, failed to establish that trial and sentencing counsel's assistance was ineffective.” (App. Vol. 2 at 16). Specifically, the post-conviction court concluded that Hamman had “wholly failed to demonstrate that he was prejudiced” and that, even with his proposed witness affidavits, he had failed to demonstrate that there was a reasonable probability that his trial or sentencing result would have been different. (App. Vol. 2 at 16). Accordingly, the post-conviction court determined that Hamman had failed to meet his burden of showing that his trial and sentencing counsels had rendered ineffective assistance of counsel.

[22] Hamman now appeals.

Decision

[23] Hamman appeals pro se and argues that the post-conviction court erred by denying him post-conviction relief. Specifically, Hamman argues that he received ineffective assistance of trial and sentencing counsel.

[24] At the outset, we note that Hamman has chosen to proceed pro se. It is well settled that pro se litigants are held to the same legal standards as licensed attorneys. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. Thus, pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so. Id. “We will not become a party's advocate, nor will we address arguments that are inappropriate, improperly expressed, or too poorly developed to be understood.” Barrett v. State, 837 N.E.2d 1022, 1030 (Ind. Ct. App. 2005), trans. denied.

[25] “[P]ost-conviction proceedings do not grant a petitioner a ‘super-appeal’ but are limited to those issues available under the Indiana Post-Conviction Rules.” Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010), trans. denied. “In post-conviction proceedings, the petitioner bears the burden of establishing his claims by a preponderance of the evidence.” Isom v. State, 170 N.E.3d 623, 632 (Ind. 2021), reh'g denied. “Where, as here, the petitioner is appealing from a negative judgment denying post-conviction relief, he must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision.” Id. (internal quotation marks and citation omitted).

[26] A claim of ineffective assistance of trial counsel requires a petitioner to show 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.” French v. State, 778 N.E.2d 816, 824 (Ind. 2002). “Indeed, most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone.” Id. Therefore, if we can dismiss an ineffective assistance claim on the prejudice prong, we need not address whether counsel's performance was deficient. Henley v. State, 881 N.E.2d 639, 645 (Ind. 2008).

[27] A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). Counsel's performance is presumed effective, and a petitioner must offer strong and convincing evidence to overcome this presumption. Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002). “Isolated poor strategy or bad tactics do not necessarily amount to ineffective assistance of counsel. Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998). “Reasonable strategy is not subject to judicial second guesses.” Ingalls v. State, 187 N.E.3d 233, 247 (Ind. Ct. App. 2022) (internal quotation marks and citation omitted), trans. denied. “This Court will not lightly speculate as to what may or may not have been an advantageous trial strategy as counsel should be given deference in choosing a trial strategy which, at the time and under the circumstances, seems best.” Whitener, 696 N.E.2d at 42.

[28] We now turn to Hamman's arguments regarding ineffective assistance of trial and sentencing counsel. Specifically, Hamman argues that Trial Counsel rendered ineffective assistance by failing to: (1) adequately investigate and call Hamman's niece as a witness for Hamman's jury trial; and (2) failing to object to alleged prosecutorial misconduct. Hamman argues that Sentencing Counsel rendered ineffective assistance by failing to: (1) adequately investigate or prepare for his sentencing hearing (because counsel did not interview the sentencing witnesses prior to their testimony at Hamman's sentencing hearing and did not review the relevant sentencing law prior to the sentencing hearing); and (2) call Hamman's friend as an additional character witness at the sentencing hearing.

[29] Thus, Hamman's ineffective assistance of counsel claims fall within the categories of failure to investigate or prepare, failure to call witnesses, and failure to object. We will first set forth the standard of review for each category, then address Hamman's ineffective assistance of counsel claims relating to Trial Counsel's and Sentencing Counsel's alleged failures in those categories.

[30] “When deciding a claim of ineffective assistance for failure to investigate, we apply a great deal of deference to counsel's judgments.” Boesch v. State, 778 N.E.2d 1276, 1283 (Ind. 2002), reh'g denied. “[E]stablishing failure to investigate as a ground for ineffective assistance of counsel requires going beyond the trial record to show what investigation, if undertaken, would have produced.” McKnight v. State, 1 N.E.3d 193, 201 (Ind. Ct. App. 2013). Additionally, the petitioner must show “how that additional information would have aided in the preparation of the case.” Turner v. State, 974 N.E.2d 575, 585 (Ind. Ct. App. 2012), trans. denied. “This is necessary because success on the prejudice prong of an ineffectiveness claim requires a showing of a reasonable probability of affecting the result.” McKnight, 1 N.E.3d at 201 (quotation marks and citation omitted).

[31] “When ineffective assistance of counsel is alleged and premised on the attorney's failure to present witnesses, it is incumbent upon the petitioner to offer evidence as to who the witnesses were and what their testimony would have been.” Lowery v. State, 640 N.E.2d 1031, 1047 (Ind. 1994), reh'g denied, cert, denied. “[T]he decision of what witnesses to call is a matter of trial strategy[,] and appellate courts do not second-guess that decision.” Reeves v. State, 174 N.E.3d 1134, 1141 (Ind. Ct. App. 2021), trans. denied. See also Wrinkles v. State, 749 N.E.2d 1179, 1200 (Ind. 2001) (stating that the decision of which witnesses to call is “the epitome of a strategic decision”) (internal quotation marks and citation omitted), cert. denied. “We will not find counsel ineffective for failure to call a particular witness absent a clear showing of prejudice.” Reeves, 174 N.E.3d at 1141.

[32] To demonstrate ineffective assistance of trial counsel for failure to object, a petitioner must prove that an objection would have been sustained if made. Benefield v. State, 945 N.E.2d 791, 799 (Ind. Ct. App. 2011). Additionally, the petitioner must show that he was prejudiced by counsel's failure to make an objection. Kubsch v. State, 934 N.E.2d 1138, 1150 (Ind. 2010), reh'g denied.

[33] We first review Hamman's argument that Trial Counsel had failed to adequately investigate and call Hamman's niece as a witness. First, we note that Hamman did not meet his burden of showing what his niece's testimony would have been. See Lowery, 640 N.E.2d at 1047 (explaining that it is incumbent for a petitioner to show what a witnessed testimony would be). Hamman did not present his niece as a witness during the post-conviction hearing. While he did introduce an affidavit from her, the post-conviction court granted the State's request to strike a paragraph of the affidavit for hearsay. Hamman does not challenge the trial court's ruling to strike the paragraph. However, he attempts to cite to that paragraph to argue that his niece could have testified that K.H. had previously recanted molestation allegations against Hamman. Moreover, during the post-conviction hearing, Trial Counsel specifically testified that he had prepared for Hamman's trial and explained why he had not called Hamman's niece as a witness. Trial Counsel explained that he had not called Hamman's niece as a witness because it would not have been beneficial to Hamman to have Hamman's niece testify that K.H. had told her that Hamman had molested K.H. Trial Counsel also explained that it had not been necessary to have Hamman's niece testify that K.H. had recanted prior allegations against Hamman because Trial Counsel had cross examined K.H. about her recantation and had gotten K.H. to admit, during her cross-examination, that she had written in her diary that she “would lie in order to get her own way[.]” (Tr. Vol. 2 at 15). Ultimately, Trial Counsel made a strategic decision about what witnesses to call to testify, and we will not second-guess that decision. See Reeves, 174 N.E.3d at 1141. See also Wrinkles, 749 N.E.2d at 1200. Accordingly, we affirm the post-conviction court's denial of post-conviction relief on this claim.

[34] Next, we turn to Hamman's argument that Trial Counsel should have objected to the video recording in which the detective referenced K.H.’s diaries and to the State's closing argument in which the prosecutor argued that Hamman had admitted to committing the child molesting offense. During the post-conviction hearing, Hamman asked Trial Counsel why he had not objected to the detective's suggestion that K.H.’s diary contained allegations about the molestation, and Trial Counsel explained that he had made objections during the trial when such objections were relevant. Additionally, Trial Counsel testified that he had not objected to the State's closing statement when the prosecutor had mentioned that Hamman had confessed because the jury had seen and heard the police interview video during which Hamman had confessed to touching K.H. Trial Counsel also explained that he had specifically cross-examined Detective Rice to get him to acknowledge that he had used “a very aggressive form of interrogation” with “a lot of leading questions[.]” (Tr. Vol. 2 at 16). “Few points of law are as clearly established as the principle that [t]actical or strategic decisions will not support a claim of ineffective assistance.” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (internal quotation marks and citation omitted), reh'g denied. Moreover, Hamman has failed to demonstrate that any objections that he alleges should have been made would have been sustained or that trial counsel otherwise rendered deficient performance. Additionally, Hamman has failed to show that there was a reasonable probability that, but for counsel's alleged unprofessional error, the result of his jury trial would have been different. Because Hamman has failed to demonstrate that trial counsel rendered ineffective assistance, we affirm the post-conviction court's denial of post-conviction relief on this claim.

[35] Lastly, we address Hamman's argument that Sentencing Counsel rendered ineffective assistance of counsel by failing to adequately prepare for the sentencing hearing (because counsel did not interview the sentencing witnesses prior to their testimony at Hamman's sentencing hearing and did not review the relevant sentencing law prior to the sentencing hearing) and by failing to call Hamman's friend as an additional character witness. The post-conviction court determined that “Hamman's evidence, such as it was, failed to establish that ․ sentencing counsel's assistance was ineffective” and determined that Hamman had “wholly failed to demonstrate that he was prejudiced” because he had not shown that there was a reasonable probability that his sentencing result would have been different. (App. Vol. 2 at 16). We agree with the post-conviction court's determination that Hamman failed to meet his burden of showing that his sentencing counsel had rendered ineffective assistance of counsel when he failed to show prejudice. See Henley, 881 N.E.2d at 645 (explaining that if we can dismiss an ineffective assistance claim on the prejudice prong, we need not address whether counsel's performance was deficient). Hamman has failed to meet his burden of showing a reasonable probability that the result of his sentencing hearing would have been different.

[36] During the post-conviction hearing, Hamman did not question Sentencing Counsel about his preparation of the sentencing witnesses or about why he had not called Hamman's friend as an additional character witness. Moreover, Sentencing Counsel testified that he recalled representing Hamman for his sentencing hearing and that he generally reviewed any relevant sentencing statutes prior to a sentencing hearing. Sentencing Counsel indicated that he did not recall discussing a minimum sentence requirement with the trial court during Hamman's sentencing hearing but that the trial court would have known of the relevant sentencing. At the time Hamman committed his Class A felony child molesting offense, Indiana Code § 35-50-2-2(i) provided that if a person, who was at least twenty-one years of age, was convicted of child molesting as a Class A felony against a victim less than twelve years of age, the trial court could suspend “only that part of the sentence that [wa]s in excess of thirty (30) years.” Furthermore, the trial court specifically noted that it would have sentenced Hamman to forty years (with thirty-five years executed and five years suspended to probation) for his child molesting conviction whether or not there had been a statutory required non-suspendable sentence of thirty years. Because Hamman has failed to show that there was a reasonable probability that, but for counsel's alleged unprofessional errors, the result of the sentencing proceeding would have been different, we affirm the post-conviction court's denial of post-conviction relief on this claim of ineffective assistance of sentencing counsel.⁴

[37] Affirmed.

FOOTNOTES

1.   The video of the police interview was introduced as State's Exhibit 1. Prior to the video's admission into evidence, the parties informed the trial court that they had agreed that a “small portion” of the interview would not be played for the jury because it was “irrelevant to the proceedings[.]” (Direct Appeal Tr. Vol. 3 at 5). The parties had also agreed that they wanted the trial court, prior to playing the video, to inform the jury that there was a seven-minute section of the video that would not be played because it “d[id] n[o]t comply with the Indiana Rules of Evidence[.]” (Direct Appeal Tr. Vol. 3 at 5). When the video was played in court, the trial court reporter transcribed the audio content of the interview and included it in the transcript of Hamman's jury trial. (See Direct Appeal Tr. Vol. 3 at 23-127). Hamman refers to the transcript cite when quoting from the interview, and we will do the same.

2.   Indiana Code § 35-50-2-2 was repealed effective July 1, 2014. At the time of Hamman's Class A felony child molesting offense, Indiana Code § 35-50-2-2(i) provided that if a person, who was at least twenty-one years of age, was convicted of child molesting as a Class A felony against a victim less than twelve years of age, the trial court could suspend “only that part of the sentence that [wa]s in excess of thirty (30) years.”

3.   The post-conviction court struck paragraph six from Hamman's niece's affidavit based on hearsay. Hamman does not challenge the post-conviction court's ruling on appeal.

4.   Hamman makes a passing assertion that the post-conviction court erred by failing to address his ineffective assistance of sentencing counsel claim. He, however, does not develop or provide any cogent argument on that contention. Therefore, he has waived any such argument. See Ind. App. Rule 46(A)(8)(a). See also Griffith v. State, 59 N.E.3d 947, 958 n.5 (Ind. 2016) (noting that the defendant had waived his arguments by failing to provide cogent argument). Moreover, as discussed above, the post-conviction court addressed Hamman's claim of ineffective assistance of sentencing counsel.

Pyle, Judge.

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