Andrew Seal, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2025)

MEMORANDUM DECISION

Case Summary

[1] Andrew Seal was convicted of Level 1 felony child molesting and three counts of Level 4 felony child molesting and later sought post-conviction relief. The post-conviction court denied relief, and Seal now appeals. We affirm.

Facts and Procedural History

[2] The following facts are taken largely from this Court's opinion on direct appeal, Seal v. State, 105 N.E.3d 201 (Ind. Ct. App. 2018), trans. denied. In 2014, Seal began working as a pre-kindergarten teacher at Daystar Childcare. In May 2016, one of Seal's students, four-year-old S.P., disclosed to her mother that Seal “touched her vagina with his finger under her clothes.” Id. at 203. Several months later, another student, three-year-old J.B., told her mother that at naptime, Seal “touched her ‘on [her] vagina’ through her clothes or on top of her covers with his fingers or hand.” Id. at 204. Then in late September or early October, Seal's five-year-old daughter, S.S., told her mother (Seal's wife) that Seal had touched her inappropriately. S.S. said she got into bed with Seal, he tickled her arms and then her “pee-pee,” and then he pulled down her pants and underwear and “tickled her on top of her ‘pee-pee.’ ” Id.

[3] Indianapolis Metropolitan Police Department Detective Genae Cook investigated the allegations. In October 2016, she conducted a videotaped interview of Seal, which included the following conversation:

Q: ․ So when you dealt with [S.P.], you said she just pulled her ․ pants down․ So when did you ․ take it to the next level?

A: Um, she, at one point wanted me to just like put my finger down there so I did.

․

Q: Okay, so would your finger go up between the labia?

A: Yeah.

Q: Would you (inaudible) go inside?

A: No.

Q: Okay. But you would manipulate the labia․

A: Yeah.

Q: ․get your finger up in there?

A: Well, I, just on top.

Q: Where did it․

A: Like inside․

Q: ․did you go in between the crack?

A: ․yeah, yeah, yeah, yes, yes․

․

Q: But you're not goin’ in the hole․

A: No, no.

Q: ․you're just goin’ in between the cracks․

A: Yes.

Q: ․where the clitoris is?

A: Yes.

Trial Ex. 9 pp. 26, 28. Seal said this happened with S.P. “like three times.” Id. at 26. Seal also confessed to “touching [S.S.’s] vagina under her clothes” and “touch[ing] [J.B.’s] vagina on the outside of her clothes” “two or three times.” Id. at 12, 24. Later that month, the State charged Seal under three separate cause numbers with (1) Level 1 felony child molesting and Level 4 felony child molesting of S.P., (2) Level 1 felony child molesting and Level 4 felony child molesting of S.S., and (3) Level 4 felony child molesting of J.B.

[4] Seal waived his right to a jury trial, and a joint bench trial was held on all three causes. The State called nine witnesses: the three victims, their mothers, the two co-directors of Daystar, and Detective Cook. The court admitted the video recording and transcript of Seal's confession into evidence without objection. Defense counsel did not cross-examine any of the State's witnesses or present any evidence in Seal's defense. After the close of evidence, the court found Seal guilty of all three Level 4 felonies. Before ruling on the Level 1 felony charges, the court requested briefing on the law as to what constitutes penetration and whether there was sufficient evidence to prove penetration here. Defense counsel asked if the parties should include in their briefs “what [their] final argument would be in addition to advising the court on what [they] believe the law to be,” and the court responded, “You can say anything else you want.” Trial Tr. p. 107. In his brief, defense counsel “argued that the trial court could not consider any part of [Seal's] confession as evidence of guilt to support a conviction for level 1 felony child molesting because there was no independent evidence of the corpus delicti” and that even if Seal's confession was admissible, there was insufficient evidence of penetration to support the Level 1 felony charges. Seal, 105 N.E.3d at 205.

[5] At the sentencing hearing, the court first heard argument as to whether Seal's confession was admissible as evidence of the Level 1 felony charges. After the parties made their arguments, the following colloquy occurred:

THE COURT: Based on the arguments presented and my reading of Owens [v. State, 732 N.E.2d 161 (Ind. 2000)], I'm not satisfied the confession should be used for the level ones. However, my recollection of the confession, and it was a while, is that he denied penetration anyhow –

[THE STATE]: Judge, that's not correct.

THE COURT: That's not what you recall?

[THE STATE]: No, and in reading our brief it is very specific.

THE COURT: Okay, let me reread the (inaudible). What's your recollection, [defense counsel]?

[DEFENSE COUNSEL]: Well, it's vague and ambiguous and it's, the State set out some of the specific statements that were made, some could be construed, some would have to be construed the other․

Trial Tr. p. 127. The court admitted the confession as evidence of the Level 1 felony charges, and the parties proceeded to closing arguments. The State argued Seal's confession sufficiently proved penetration, pointing to the following statements: “He definitely talked about rubbing [S.P.] on her bare vagina and he said that he touched her on her clitoris, which as the court has read in our brief, is penetration. The defendant said that in his statement․ [W]e have the defendant's statement to clear up what these very little children were not able to tell us, ․ which is that additional element of him touching SP on her clitoris and him touching SS in between her labia.” Id. at 129-30. Alternatively, the State asked the court to find Seal guilty of attempt. Defense counsel argued that “even attempt requires the element of specific intent in this case to commit penetration, which is the element that's not been established. So even if there are acts that the State is relying on to say there's a substantial step,” there's “also a requirement of specific intent accompany [sic] those acts and that's still lacking proof.” Id. at 131.

[6] The court found Seal guilty of Level 1 felony child molesting of S.P. but not guilty of Level 1 felony child molesting of S.S. During the sentencing portion of the hearing, the court identified the following aggravators: (1) there were multiple victims, including Seal's daughter; (2) Seal violated a position of trust over each victim; and (3) “there were multiple events with each victim.” Id. at 159. The court found as mitigators that Seal has no criminal history, showed remorse, and accepted responsibility. Based on these factors, the court sentenced Seal to a total of 32 years—20 years for Level 1 felony child molesting and six years for each Level 4 felony conviction, with the two counts as to S.P. to be served concurrent to each other but consecutive to the other two Level 4 felonies. Seal appealed his conviction for Level 1 felony child molesting, and we affirmed, concluding that the trial court did not abuse its discretion in admitting Seal's confession and that the evidence was sufficient to support the conviction. Seal, 105 N.E.3d at 211. Our Supreme Court denied transfer.

[7] In December 2018, Seal, pro se, petitioned for post-conviction relief, claiming ineffective assistance of both trial and appellate counsel. Seal amended his petition in July 2022, alleging (as relevant to this appeal) that (1) his trial counsel was ineffective for declining to question Detective Cook, failing to object to allegedly inaccurate statements in the State's closing argument, and giving an inadequate closing argument, and (2) his appellate counsel was ineffective for not challenging Seal's sentence.

[8] The post-conviction court held an evidentiary hearing in January 2023. When Seal asked his trial counsel why he didn't question Detective Cook, counsel answered, “I don't question a witness unless I believe that there is something that I can elicit from that witness that would be helpful in your defense. If I don't think there is anything, then I don't ask anything.” P-C Tr. p. 46. Trial counsel explained that he didn't believe the State's witnesses established penetration in their testimony on direct examination, so he didn't want to “open[ ] the door to the possibility that they may end up saying something on cross-examination that they didn't say on direct examination.” Id. at 46-47. Thus, he didn't cross-examine any of the State's witnesses because he didn't want to risk eliciting testimony that would give the State the evidence it needed to convict Seal of the Level 1 felonies. Seal also questioned trial counsel about what he claimed was a misstatement of fact by the State in its closing argument—Seal admitted in his confession that he touched S.P. “where the clitoris is,” but the State said, “He said that he touched her on her clitoris ․ The Defendant said that in his statement.” Id. at 52. When Seal asked trial counsel why he didn't object to this alleged misstatement, counsel responded that he “did not believe it to be a false statement” but rather “an interpretation of [Seal's] statement that [Seal] didn't agree with.” Id. And as to his own closing argument, trial counsel testified that he didn't remember exactly what he argued, but he “advocated from beginning to end” that there was no penetration. Id. at 54.

[9] Seal questioned his appellate counsel about his decision not to raise the sentencing issues Seal suggested. Appellate counsel had written Seal a letter saying he could not “discern any reasonable strategy in pursuing” a sentencing challenge because Seal “received the minimum sentence for the Level 1 felony, so there is no argument, legal or factual, that can improve on this.” Appellant's App. Vol. II p. 60. Counsel added, “While I believe it is unlikely that the Court of Appeals would increase your sentence, there is absolutely no reason to take this risk.” Id. Appellate counsel testified that he “[o]nly vaguely” remembered Seal's case but explained that his standard procedure was to review the entire record and then raise on appeal what appeared “to be the most meritorious issues available from the record.” P-C Tr. p. 26. He explained that he would've considered Seal's ideas, but if they lacked merit or it wasn't in Seal's best interests to raise them, he would've decided not to include them on appeal.

[10] The post-conviction court denied relief in May 2024, concluding that Seal was not denied effective assistance of trial or appellate counsel.

[11] Seal, pro se, now appeals.

Discussion and Decision

[12] Seal appeals the denial of post-conviction relief. A defendant who petitions for post-conviction relief bears the burden of establishing grounds for relief by a preponderance of the evidence. Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014). A petitioner appealing from the denial of post-conviction relief must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. at 269. “Although we do not defer to the post-conviction court's legal conclusions, a post-conviction court's findings and judgment will be reversed only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made.” Id. (quotation omitted).

I. The post-conviction court did not err in concluding that Seal failed to prove his trial counsel was ineffective

[13] Seal first argues the post-conviction court erred in finding that his trial counsel was not ineffective. When evaluating a defendant's ineffective-assistance-of-counsel claim, we apply the well-known, two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Conley v. State, 183 N.E.3d 276, 282 (Ind. 2022), reh'g denied. The defendant must prove: (1) counsel's performance was deficient based on prevailing professional norms and (2) counsel's deficient performance prejudiced the defendant, meaning there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 282-83. “Failure to satisfy either prong will cause the claim to fail.” Id. at 283.

[14] “In analyzing whether counsel's performance was deficient, the Court first asks whether, considering all the circumstances, counsel's actions were reasonable under prevailing professional norms.” Id. (quotations omitted). Counsel is afforded considerable discretion in choosing strategy and tactics, and judicial scrutiny of counsel's performance is highly deferential. Id. “There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. This is because even the best and brightest criminal defense attorneys may disagree on ideal strategy or the most effective way to represent a defendant. Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001), reh'g denied. Accordingly, we do not “second-guess” strategic decisions requiring reasonable professional judgment even if the strategy in hindsight did not serve the defendant's interests. State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997), reh'g denied.

A. Failure to cross-examine Detective Cook

[15] Seal contends his trial counsel was ineffective for failing to cross-examine Detective Cook. “It is well settled that the nature and extent of cross-examination is a matter of strategy delegated to trial counsel.” Waldon v. State, 684 N.E.2d 206, 208 (Ind. Ct. App. 1997), trans. denied. In denying relief, the post-conviction court concluded that trial counsel's “strategic decision not to cross-examine the detective was made in Seal's best interest.” Appellant's App. Vol. II p. 27. We agree. Trial counsel testified at the post-conviction hearing that he “do[es]n't question a witness unless [he] believe[s] that there is something that [he] can elicit from that witness that would be helpful [to the] defense.” He explained that he didn't question the State's witnesses—including Detective Cook—because he didn't think any of their testimony established penetration, so he didn't want to “open[ ] the door to the possibility that they may end up saying something on cross-examination that they didn't say on direct examination.” Considering this strategy, we cannot say trial counsel's decision not to cross-examine Detective Cook amounted to deficient performance. See Douglas v. State, 663 N.E.2d 1153, 1155 (Ind. 1996) (concluding trial counsel's failure to cross-examine certain witnesses was reasonable where “decision not to cross-examine all of the witnesses was clearly a matter of strategy” and “witnesses who were not cross-examined could not have advanced trial counsel's strategy”).

[16] Further, Seal hasn't shown that trial counsel's failure to cross-examine Detective Cook prejudiced him. Seal argues that questioning Detective Cook “could have been a crucial boost to strengthening the defense in his case” and that “[t]he ambiguity and subjective nature of the [interview] should have been a door for questioning the detective during trial.” Appellant's Br. pp. 15, 17. But Seal doesn't identify what questions trial counsel should have asked, what testimony could have been elicited from Detective Cook, or how any testimony elicited would have helped his case.¹ Because Seal didn't show a reasonable probability that the outcome of the trial would have been different had trial counsel cross-examined Detective Cook, he failed to establish prejudice. See Oberst v. State, 935 N.E.2d 1250, 1258 (Ind. Ct. App. 2010) (finding defendant failed to show deficient performance or prejudice in trial counsel's allegedly inadequate cross-examination where defendant “present[ed] no argument much less any evidence as to what information counsel could have, but failed to, elicit on cross-examination”), trans. denied; Waldon, 684 N.E.2d at 208-09 (concluding defendant failed to establish prejudice where he showed no favorable testimony that could have been elicited on cross-examination).

B. Failure to object to alleged misstatements of evidence

[17] Seal next contends his trial counsel was ineffective for failing to object to alleged misstatements of evidence during the State's closing argument. “In order to prove ineffective assistance of counsel due to the failure to object, a defendant must prove that an objection would have been sustained if made and that he was prejudiced by the failure.” Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001).

[18] In its closing argument at trial, the State remarked, “[Seal] said that he touched [S.P.] on her clitoris ․ The defendant said that in his statement,” and “[W]e have the defendant's statement ․ which is that additional element of him touching SP on her clitoris ․” Seal contends these are “misstatements of evidence” because although he confessed to touching S.P. “in between the crack, where the clitoris is,” he “never said in his statement that he touched the clitoris.” Appellant's Br. p. 20. But as trial counsel explained—and the post-conviction court agreed—the State's remarks were not false statements but merely “an interpretation of [Seal's] statement that [Seal] didn't agree with.” Because the statements Seal challenges were not misstatements of the evidence as he claims, he has not shown that the trial court would have sustained any objection to them. See Wrinkles, 749 N.E.2d at 1203 (finding defendant failed to show objection to prosecutor's comments would have been sustained where comments “were fair characterizations of the evidence”); Burris v. State, 558 N.E.2d 1067, 1072 (Ind. 1990) (“[T]he prosecutor's closing argument did not put Burris in grave peril, and therefore the defense counsel's failure to object does not establish ineffectiveness.”), reh'g denied.

[19] Nonetheless, Seal claims the State's remarks “had a persuasive effect on the court's decision to find him guilty.” Appellant's Br. p. 23. He highlights the trial court's statement just before closing arguments that its “recollection of the confession ․ is that [Seal] denied penetration anyhow.” Seal argues that this shows “the court seemed to be leaning towards a verdict of not guilty on the level ones” and that there was nothing else presented “that would change the court[’]s mind or bolster the state's position, until the final arguments were made.” Id. We disagree. To begin, immediately after the trial court shared its recollection that Seal denied penetration, the State responded, “Judge, that's not correct.” And when the court asked trial counsel his recollection of the confession, counsel argued it was “vague and ambiguous.” Additionally, because this was a bench trial, “[w]e presume the trial judge is aware of and knows the law and considers only evidence properly before him or her in reaching a decision.” Conley v. State, 972 N.E.2d 864, 873 (Ind. 2012), reh'g denied. We agree with the post-conviction court that the trial court “would have been well aware that the State's closing argument was just that – argument, not evidence – and would have ultimately rendered its decision based on the evidence including Seal's videotaped confession, not on what was stated by either party in their closing arguments or briefs.” Appellant's App. Vol. II p. 30. Seal has not shown that he was prejudiced by trial counsel's failure to object during the State's closing argument.

C. Alleged deficiencies in trial counsel's closing argument

[20] Finally, Seal claims his trial counsel was ineffective because, during closing argument, he did not “refute[ ] the prosecutor's misstatements” or “mak[e] a viable argument that Seal's confession did not amount to a level l felony.” Appellant's Br. pp. 25, 26. It is true that the only point trial counsel made in closing argument was that, contrary to what the State had just argued, there was insufficient evidence to support convictions for Level 1 felony attempted child molesting. But Seal doesn't acknowledge that the trial court allowed the parties to also include final arguments in their briefs on the law as to what constitutes penetration. Trial counsel argued in his brief that “the State offered no evidence of the element of penetration, independent of [Seal's] statement,” that Seal's answers during his interview “were vague and contradictory at best,” and that Seal's statement did not prove penetration beyond a reasonable doubt. Appellant's Direct Appeal App. Vol. II pp. 79-80. We agree with the State that “[t]he posttrial brief and oral statements to the trial court formed an effective closing argument that contested the State's contention that Seal clearly admitted to penetration.” Appellee's Br. p. 28. Seal did not show that counsel's closing argument amounted to deficient performance.

[21] For the reasons above, the post-conviction court did not err in concluding that Seal failed to prove his trial counsel was ineffective.

II. The post-conviction court did not err in concluding that Seal failed to prove his appellate counsel was ineffective

[22] Seal also contends his appellate counsel was ineffective for not challenging his sentence. The standard for a claim of ineffective assistance of appellate counsel is the same as for trial counsel in that the defendant must show appellate counsel was deficient in their performance and that the deficiency resulted in prejudice. Timberlake, 753 N.E.2d at 603. Our Supreme Court has recognized three types of ineffective assistance of appellate counsel: denial of access to appeal, failure to raise issues that should have been raised, and failure to present issues well. Wrinkles, 749 N.E.2d at 1203. Seal's claim falls into the second category: failure to raise an issue. In evaluating the performance prong for such claims, we consider whether the unraised issues are (1) significant and obvious from the face of the record and (2) clearly stronger than the raised issues. Garrett v. State, 992 N.E.2d 710, 724 (Ind. 2013). Even if appellate counsel's performance was deficient, to prevail, the defendant “must demonstrate a reasonable probability that the outcome of the direct appeal would have been different.” Hampton v. State, 961 N.E.2d 480, 491 (Ind. 2012).

[23] Seal first argues his appellate counsel should have challenged the appropriateness of his sentence under Appellate Rule 7(B).² He acknowledges that he received the minimum sentence for Level 1 felony child molesting but suggests that appellate counsel should have challenged the trial court's imposition of advisory terms for the Level 4 felony child-molesting convictions, with two of the terms to run consecutive to the Level 1 felony. But Seal did not show a reasonable probability that he would have prevailed on such a challenge. The court's imposition of consecutive sentences for two of the Level 4 felonies is supported by the fact that there were multiple victims. See Pittman v. State, 885 N.E.2d 1246, 1259 (Ind. 2008) (“Consecutive sentences reflect the significance of multiple victims.”). Further, the nature and circumstances of Seal's offenses could have warranted above-advisory sentences for the Level 4 felonies—Seal was in a position of trust over each victim, see Edrington v. State, 909 N.E.2d 1093, 1097 (Ind. Ct. App. 2009) (finding defendant's “position of trust or care” permitted enhanced sentence), trans. denied, and the victims were three, four, and five years old when the abuse occurred, see Hamilton v. State, 955 N.E.2d 723, 727 (Ind. 2011) (“[Y]ounger ages of victims tend to support harsher sentences.”). In the same vein, appellate counsel advised Seal that, although it was unlikely, this Court could increase his sentence on direct appeal, and “there [wa]s absolutely no reason to take this risk.” Seal has not shown he was prejudiced by appellate counsel's decision not to challenge the appropriateness of his sentence.

[24] Seal also contends his appellate counsel should have challenged the trial court's mistake in finding an aggravator and failure to find the following mitigators: the fact that he confessed, his apologies to the victims and their families, his enrollment in counseling and sexaholics anonymous, “the extreme hardship a long incarceration would have on his family,” and that he “us[ed] his time in jail to continue to work though his issues.” Appellant's Br. p. 27. But again, Seal did not show a reasonable probability that such a challenge would have been successful on direct appeal. Seal is correct that the trial court erred in finding as an aggravator that “there were multiple events with each victim” because there was only one incident with S.S. As for the mitigators, the court did find as mitigators that Seal expressed remorse and accepted responsibility. See Trial Tr. p. 159. And even if the trial court had found the other mitigators Seal proposed, and even without the mistaken aggravator, we are confident the court would have imposed the same sentence. Despite finding multiple aggravators, the court still imposed the minimum sentence for the Level 1 felony and advisory sentences for each Level 4 felony conviction. As explained above, the nature and circumstances of the offenses could have warranted above-advisory sentences. We therefore are doubtful that raising this challenge on direct appeal would have resulted in remand. See Vega v. State, 119 N.E.3d 193, 203 (Ind. Ct. App. 2019) (“[W]e need not remand for resentencing if we can say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.”) (quotation omitted). The post-conviction court did not err in concluding that Seal failed to prove his appellate counsel was ineffective.

[25] Affirmed.

FOOTNOTES

1.   Seal claims he “confided in counsel details that he could have questioned the witness about. Specifically that [S.P.] was standing on the cot with her pants only partially pulled down, which would have made penetration more unlikely.” Appellant's Br. p. 19. But Seal doesn't point us to any evidence that he told trial counsel these details, and he didn't ask trial counsel about them at the post-conviction hearing.

2.   While Seal doesn't explicitly frame this argument as a Rule 7(B) claim, it appears from the record that Seal asked his appellate counsel to raise a 7(B) challenge on direct appeal. See Appellee's Br. pp. 30-31 (“The context of appellate counsel's letter would allow an inference that Seal urged a challenge under Appellate Rule 7(B), due to the letter's reference to “McCullough,” presumably a reference to McCullough v. State, 900 N.E.2d 745 (Ind. 2009), and its discussion of possible upward revision of Seal's sentence[.]”). Thus, we treat this argument as one about the appropriateness of Seal's sentence.

Vaidik, Judge.

Judges Bailey and DeBoer concur. Bailey, J., and DeBoer, J., concur.