Timmy Wayne Bowman, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2025)

MEMORANDUM DECISION

Case Summary

[1] In 2018, Timmy Wayne Bowman was convicted of attempted murder, domestic battery, invasion of privacy, and pointing a firearm and was sentenced to an aggregate term of forty-one and one-half years of incarceration. After this Court affirmed Bowman's conviction and sentence on direct appeal, Bowman filed a petition for post-conviction relief in which he claimed ineffective assistance of trial and appellate counsel. The post-conviction court (“PC Court”) denied Bowman's petition. Bowman appeals and claims that the PC Court clearly erred by rejecting Bowman's claims of ineffective assistance of trial counsel. We disagree and affirm.

Issue

[2] Bowman presents one issue, which we restate as whether the PC Court clearly erred by rejecting Bowman's claims of ineffective assistance of trial counsel.

Facts

[3] The facts underlying Bowman's convictions were set forth on direct appeal as follows:

Bowman punched his wife (“Wife”) in the face for refusing to cosign on a business loan. Bowman's sixteen-year-old daughter (“Daughter”) witnessed the battery and went outside to phone her older sister (“Sister”). On her way to Bowman's house, Sister phoned 911 and her brother, Bowman's stepson (“Stepson”). Stepson came to the house to confront Bowman about striking Wife. Once inside, he heard Bowman load a magazine for a firearm, so he exited the house to warn the other family members. Bowman chased him down and pointed a firearm directly at his back. Wife, Daughter, and Sister screamed, and Stepson ran into a nearby field and phoned police to let them know that Bowman was armed. Bowman went back inside the home.

Five law enforcement officers arrived at the scene, and family members congregated outside the home. Bowman began making suicidal threats. Corporal Steve Sullivan spoke with Bowman through an open window, and Bowman threatened to “blow [him] away” if he came closer. Tr. Vol. 5 at 135. Another officer, Sergeant Herbert Houseworth, was familiar to Bowman because, three years earlier, he had been involved in investigating a fatal auto accident involving Bowman's older son. Bowman had remained angry over the way police had handled the investigation, and when he saw Sergeant Houseworth, his anger escalated and “turned to hate.” Tr. Vol. 2 at 188-89. He had a high-powered rifle, and when he saw the sergeant out by a wood chipper, he announced his desire to shoot Houseworth in the head. He also stated that he could see Officer Steven Stepleton behind the wood chipper and could shoot his legs from where he was standing. A roadblock was set up, and the officers eventually repositioned themselves behind a white truck.

Meanwhile, Bowman phoned his son (“Son”) at work, told him about the standoff with police, and urged him to come to the house. Shortly before Son arrived, Bowman told him over the phone that he was “about to go out of this world.” Tr. Vol. 4 at 28-29. Son drove through the roadblock, and Sergeant Houseworth and another officer ordered him out of his vehicle at gunpoint. Immediately thereafter, Bowman emerged from the house armed with a handgun, shouting for Son. Trooper Travis Linville repeatedly ordered Bowman to drop the weapon and show his hands. Instead, Bowman raised the handgun, pointed it at Trooper Linville, and fired several shots, hitting the white truck. The trooper saw a bright muzzle flash and returned fire. Officer Stepleton also observed the bright flash and saw the barrel of Bowman's handgun pointed at him as he, Corporal Sullivan, and Trooper Linville hovered around the white truck. Trooper Linville fired two shots at Bowman, who retreated indoors and phoned a friend and his sister to tell them that he thought he had killed an officer. He then fired one shot into his own chest. He was treated for the self-inflicted wound at an area hospital.

Bowman v. State, No. 18A-CR-1581, slip op. pp. 2-4 (Ind. Ct. App. Apr. 16, 2019) (mem.), trans. denied.

[4] As a result of this incident, the State charged Bowman with: (1) domestic battery, a Class A misdemeanor, for striking his wife; (2) invasion of privacy, a Class A misdemeanor, for violating a protection order; (3) attempted murder, a Level 1 felony, for shooting at the police officers; and (4) pointing a firearm, a Level 6 felony, for aiming his weapon at his stepson. The State also alleged that Bowman used a firearm during the commission of the attempted murder and sought to add a firearm sentencing enhancement to that charge. Bowman pleaded guilty to the two Class A misdemeanors, and the remaining charges proceeded to a jury trial. The jury found Bowman guilty of attempted murder, a Level 1 felony, and pointing a firearm as a Class A misdemeanor, for pointing a firearm at his stepson. The jury returned a not guilty verdict on the firearm sentencing enhancement. The trial court subsequently sentenced Bowman to an aggregate term of forty-one and one-half years.

[5] On direct appeal, Bowman claimed that: (1) the trial court abused its discretion by denying Bowman's request to instruct the jury on criminal recklessness as a factually lesser-included offense of attempted murder; (2) the State failed to present sufficient evidence to support his conviction for attempted murder; and (3) his forty-one and one-half year sentence was inappropriate. We rejected Bowman's claims and affirmed his convictions and sentence. See id. at 2.

[6] On August 29, 2019, Bowman filed a pro se petition for post-conviction relief, which he amended on January 13, 2023. In his petition, Bowman claimed that both his trial and appellate counsel were ineffective. As relevant here, Bowman claimed that his trial counsel was ineffective for failing to request a jury instruction on the offense of pointing a firearm as a factually lesser-included offense of attempted murder; he also claimed that his trial counsel was ineffective for failing to object to the admission of State's Exhibit 1, which was a diagram drawn by one of the police officers depicting the location of Bowman's home and outbuildings, various vehicles, and law enforcement at the time Bowman shot at the officers.

[7] The PC Court held an evidentiary hearing on Bowman's petition on October 24, 2023, and, on July 16, 2024, the PC Court issued exhaustive findings of fact and conclusions of law denying Bowman's petition. The relevant findings follow:

FINDINGS OF FACT

* * * * *

i․ [Trial counsel] contemplated requesting a jury instruction for Pointing a Firearm, a Level 6 Felony, as a lesser-included offense [of attempted murder]. If requested, Petitioner would have been entitled to this lesser-included instruction. [Trial counsel] testified that he and the Petitioner discussed whether to request said instruction. [Trial counsel] stated Petitioner refused to request said instruction. [Trial counsel] opined that if the lesser-included instruction were requested, Petitioner would be convicted of that crime in addition to the firearm sentencing enhancement leaving Petitioner with a possible sentencing exposure of 22 1/2 years. [Trial counsel] testified Petitioner's goal was to minimize the amount of time spent in jail and requesting a lesser-included offense “was not consistent with what you (Petitioner) wanted ․ The only way you (Petitioner) could get what you wanted was to leave it up to the jury.”

j. Petitioner introduced some notes made following Petitioner's initial hearing on the firearm sentencing enhancement on April 6, 2017. The notes alluded to the enhancement not attaching to a Pointing of a Firearm charge. [Trial counsel] testified that [trial counsel]’s law partner, covered that hearing and those were [trial counsel's law partner]’s notes. [Trial counsel] asserted he researched the issue and advised Petitioner correctly that the firearm sentencing enhancement would attach to the Pointing of a Firearm as a lesser-included offense of the attempted murder charge. At the time of the initial hearing on the sentencing enhancement, Petitioner was charged with the Pointing of a Firearm at [Stepson], an individual who was not a law enforcement officer. Based on the distinction of law enforcement officers and non-law enforcement officers in [the firearm enhancement statute], the sentencing enhancement would not have attached to the Pointing of a Firearm count that Petitioner pled guilty to prior to the start of the jury trial due to [Stepson] not being a law enforcement officer. The sentencing enhancement would have attached to the lesser-included offense of [pointing a firearm], based on those individuals all being law enforcement officers.

* * * * *

m. Sgt. Tom Baxter was not called as a witness by Petitioner at the criminal trial. [Trial counsel] testified that not calling him was a strategic decision. He indicated that “Sgt. Baxter was not going to be helpful to us. You don't always get a lot of help from a State's witness.” Sgt. Baxter participated in the criminal investigation in an assisting capacity. During the investigation, part of Sgt. Baxter's role consisted of making a drawing to recreate the scene of the crime. Petitioner has questioned the accuracy of said drawing and questioned [trial counsel] as to why he did not object to its admission. [Trial counsel] responded that he believed all witnesses, including State's witnesses, testified that it contained inaccuracies at trial. Therefore, [trial counsel] felt it would benefit Petitioner to emphasize the inaccuracies during cross examination to cast doubt on the State's witnesses more than to object to its admission as evidence. [Trial counsel] stated, “I thought the jury would see the State's evidence was inaccurate (referring to the drawing).” Rather than object to the drawing's admission, [trial counsel] made a strategic decision to attack any inaccuracies or mistakes contained in the drawing on cross-examination.

* * * * *

CONCLUSIONS OF LAW

* * * * *

REFUSAL TO REQUEST JURY INSTRUCTION

23. Petitioner is not entitled to relief on his claim that trial counsel provided ineffective assistance of counsel when he declined to request Pointing a Firearm, Level 6 felony, as a lesser-included jury instruction. Pursuant to I.C. 35-50-2-11(e), Petitioner was charged with a firearm sentencing enhancement. The sentencing enhancement carried a penalty of an additional 5 to 20 years, and alleged Petitioner knowingly or intentionally pointed a firearm or discharged a firearm at a law enforcement officer while committing a crime. [Trial counsel] advised Petitioner of the enhancement's potential penalty and the high likelihood of its conviction, if he wanted to move forward with a Pointing a Firearm, Level 6 felony, as a lesser-included instruction, alleging he pointed a firearm at law enforcement officers. While Petitioner would have been entitled to said lesser-included instruction, Petitioner informed [trial counsel] Petitioner did not want the lesser-included instruction. Petitioner's goal was to do as little jail time as possible and requesting a lesser included offense that would result in a very high likelihood of conviction of both the lesser-included offense and the sentencing enhancement was contradictory to Petitioner's goal. Based on Petitioner's ultimate goal in the case, [trial counsel] made a strategic decision to concede some of the alleged conduct in an attempt to build credibility with the jury to avoid the attempted murder conviction. This strategy could not have been deployed effectively, if Petitioner conceded the conduct encompassed in the lesser-included offense. Conceding Petitioner committed the lesser-included offense of Pointing a Firearm would have resulted in a very high likelihood of also being convicted of the firearm sentencing enhancement and its relatively lengthy possible sentence. [Trial counsel] made a reasonable and strategic decision by not requesting a lesser-included instruction. There is no evidence that his decision falls below an objective standard of reasonableness based on prevailing professional norms.

* * * * *

FAILURE TO CALL SGT. BAXTER AS DEFENSE WITNESS; FAILURE TO OBJECT TO DRAWING EXHIBIT

25. Petitioner is not entitled to relief based on his claims that trial counsel was ineffective for failing to call Sgt. Baxter as a defense witness or for failing to object to the drawing exhibit Sgt. Baxter prepared. Based on the intertwined nature of these claims, they shall be addressed together. [Trial counsel] made a strategic decision not to call Sgt. Baxter as a witness nor object to the admission of the drawing. Sgt. Baxter was an experienced Indiana State Police detective who participated in an assisting capacity in the criminal investigation. Most notably in the present case, Sgt. Baxter drafted the drawing recreating the crime scene. As emphasized by [trial counsel], he did not anticipate an experienced State Police detective to be helpful to the Petitioner on the witness stand. Rather than call Sgt. Baxter as a witness, where he would have to ask an experienced state's witness direct examination questions and potentially give him an opportunity to explain away some of the drawing's inaccuracies already testified to, [trial counsel] chose to attack the potential inaccuracies through cross-examination of multiple state's witnesses. He attempted to show the jury that the State was relying on evidence that even some of their own witnesses had some discrepancies with. By emphasizing the drawing's inaccuracies with many of the State's witnesses rather than try to prevent its admission and not calling Sgt. Baxter as a witness, [trial counsel] made a strategic decision to try to discredit or cast doubt on the State's witnesses and evidence they relied on. The State's case largely depended on physical evidence to prove Petitioner's intent to kill. [Trial counsel]’s decision to attempt to discredit the State's witnesses aligned with his trial strategy that even the State's own evidence showed Petitioner lacked the sufficient intent to kill.

* * * * *

Appellant's P-C.R. App. pp. 177-93 (record citation omitted) (emphases added). Bowman now appeals.

Discussion and Decision

I. Post-Conviction Standard of Review

[8] Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence. Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019); Ind. Post-Conviction Rule 1(1)(b). “The scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal.” Gibson, 133 N.E.3d at 681. “Issues available on direct appeal but not raised are waived, while issues litigated adversely to the defendant are res judicata.” Id. The petitioner bears the burden of establishing his claims by a preponderance of the evidence. Id.; P.-C.R. 1(5).

[9] When, as here, the petitioner “appeals 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.’ ” Gibson, 133 N.E.3d at 681 (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000)). When reviewing the PC Court's order denying relief, we will “not defer to the post-conviction court's legal conclusions,” and the “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.” Bobadilla v. State, 117 N.E.3d 1272, 1279 (Ind. 2019). When a petitioner “fails to meet this ‘rigorous standard of review,’ we will affirm the post-conviction court's denial of relief.” Gibson, 133 N.E.3d at 681 (quoting DeWitt v. State, 755 N.E.2d 167, 169-70 (Ind. 2001)).

[10] We also note that the judge who presided over Bowman's original trial was also the judge who presided over the post-conviction proceedings. Accordingly, the PC Court's findings and judgment are entitled to especially great deference. Reeves v. State, 174 N.E.3d 1134, 1140 (Ind. Ct. App. 2021) (citing State v. Dye, 784 N.E.2d 469, 476 (Ind. 2003)).¹

II. Ineffective Assistance of Trial Counsel

[11] To prevail on a claim of ineffective assistance of trial counsel, a defendant must show that: (1) his counsel's performance fell short of prevailing professional norms; and (2) his counsel's deficient performance prejudiced his defense. Gibson, 133 N.E.3d at 682 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

[12] A showing of deficient performance “requires proof that legal representation lacked ‘an objective standard of reasonableness,’ effectively depriving the defendant of his Sixth Amendment right to counsel.” Id. (quoting Overstreet v. State, 877 N.E.2d 144, 152 (Ind. 2007)). We presume that counsel exercised “reasonable professional judgment” and “rendered adequate legal assistance.” Id. Defense counsel enjoys “considerable discretion” in developing legal strategies for a client. Id. This “discretion demands deferential judicial review.” Id. Counsel's “[i]solated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.” Id.

[13] “To demonstrate prejudice, the defendant must show a reasonable probability that, but for counsel's errors, the proceedings below would have resulted in a different outcome.” Id. “A reasonable probability is [a probability] that is sufficient to undermine confidence in the outcome.” Overstreet, 877 N.E.2d at 152 (citing Strickland, 466 U.S. at 694). Failure to satisfy either prong will cause the claim to fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.

A. Trial counsel was not ineffective for failing to seek a jury instruction on the lesser-included offense of pointing a firearm.

[14] On appeal,² Bowman claims that his trial counsel was ineffective for failing to seek a jury instruction on pointing a firearm as a factually lesser-included offense of the charged crime of attempted murder.³ Both parties appear to agree that pointing a firearm was a factually lesser-included offense of attempted murder because the State alleged that Bowman committed attempted murder by firing a weapon at the police.⁴ Direct Appeal App. Vol. II p. 60; see also Thurman v. State, 158 N.E.3d 372, 377 (Ind. Ct. App. 2020) (holding that offense of pointing a firearm may constitute a factually lesser-included offense of attempted murder). Accordingly, the PC Court determined that Bowman would have been entitled to an instruction on pointing a firearm as a lesser-included offense of attempted murder had he requested one. Appellant's P.-C.R. App. pp. 182-83.

[15] Bowman argues that, had his trial counsel sought an instruction on the lesser-included offense of pointing a firearm, there was a reasonable probability that the jury would have convicted him on that offense instead of attempted murder, which carries a longer sentence. Bowman also argues that the firearm enhancement could not attach to the pointing-a-firearm charge and could only attach to the attempted murder charge. Thus, Bowman claims that, by declining a lesser-included offense instruction on pointing a firearm, his trial counsel deprived him of the chance to be convicted of a much less serious offense ⁵ and that this error was compounded because the firearm enhancement could not have attached to this less serious offense.

[16] We first note that the PC Court found that Bowman himself chose the all-or-nothing strategy to forgo the lesser-included offense instruction, and this finding was supported by the testimony of Bowman's trial counsel. Moreover, the evidence adduced at trial showed that Bowman did much more than merely point a firearm. He fired his weapon directly at the police officers, hit a vehicle the officers were hiding behind, bore a grudge against one of the officers, and told his family members that he thought he killed one of the officers. Thus, the chances of the jury convicting him only of the lesser-included offense of pointing a firearm were slim. See Simmons v. State, 999 N.E.2d 1005, 1010-11 (Ind. Ct. App. 2013) (holding that defendant's specific intent to kill, to support attempted murder conviction, could be inferred from his firing two shots at a wall behind which police officers were standing), trans. denied.

[17] In an attempt to avoid the consequences of his own strategic choice, Bowman argues that his trial counsel misinformed him regarding the applicability of the firearm enhancement and, thus, his decision was itself the product of his trial counsel's deficient performance. Bowman claims that, although a firearm enhancement could have attached to an attempted murder conviction, it could not have attached to a pointing-a-firearm conviction. Thus, by failing to seek an instruction on the factually lesser-included offense of pointing-a-firearm, Bowman claims that trial counsel also exposed Bowman to the additional punishment of the firearm enhancement.⁶

[18] The version of the firearm enhancement statute in effect at the time Bowman committed his offense provided in part:

(a) As used in this section, “firearm” has the meaning set forth in IC 35-47-1-5.[7]

(b) As used in this section, “offense” means:

(1) a felony under IC 35-42 that resulted in death or serious bodily injury;

(2) kidnapping;

(3) criminal confinement as a Level 2 or Level 3 felony; or

(4) attempted murder.

* * * * *

(d) The state may seek, on a page separate from the rest of a charging instrument, to have a person who allegedly committed an offense sentenced to an additional fixed term of imprisonment if the state can show beyond a reasonable doubt that the person knowingly or intentionally used a firearm in the commission of the offense.

Ind. Code § 35-50-2-11(b) (2016) (emphasis added).

[19] But subsection (e) of the firearm enhancement statute, at the time of Bowman's offense, also provided:

(e) The state may seek, on a page separate from the rest of a charging instrument, to have a person who allegedly committed a felony or misdemeanor other than an offense (as defined under subsection (b)) sentenced to an additional fixed term of imprisonment if the state can show beyond a reasonable doubt that the person, while committing the felony or misdemeanor, knowingly or intentionally:

(1) pointed a firearm; or

(2) discharged a firearm;

at an individual whom the person knew, or reasonably should have known, was a police officer.

I.C. § 35-50-2-11(e).⁸

[20] And the firearm enhancement filed by the State in Bowman's case alleged that:

[W]hile committing said felony or misdemeanor (Attempted Murder), Bowman knowingly or intentionally:

1. Pointed a firearm; or

2. Discharged a firearm;

at an individual whom Bowman knew or reasonably should have known was a police officer.

Direct Appeal App. p. 77 (emphasis added).

[21] Thus, contrary to Bowman's claim, the firearm enhancement could have attached to a conviction for the lesser-included offense of pointing a firearm because Bowman pointed and discharged a firearm at individuals he knew to be police officers.⁹ See McCain v. State, 140 N.E.3d 299, 304 (Ind. Ct. App. 2020) (holding that firearm enhancement, which was alleged in conjunction with charged crime of murder, could attach to defendant's conviction for lesser-included offense of voluntary manslaughter), trans. granted, summarily aff'd in relevant part, 148 N.E.3d 977 (Ind. 2020). Accordingly, Bowman's claim that his trial counsel misinformed him regarding the applicability of the firearm enhancement is simply incorrect.

[22] In short, the decision to pursue an all-or-nothing strategy and forgo an instruction on pointing a firearm as a factually lesser-included offense of attempted murder was a reasonable strategic decision based on Bowman's own wishes, and trial counsel did not misinform Bowman regarding the applicability of the firearm enhancement. We, therefore, conclude that the PC Court did not clearly err by concluding that Bowman's trial counsel was not ineffective for failing to request an instruction on the factually lesser-included offense of pointing a firearm. See Coleman v. State, 196 N.E.3d 731, 740 (Ind. Ct. App. 2022) (holding that trial counsel's decision not to tender a lesser-included offense jury instruction was a reasonable all-or-nothing trial strategy and did not constitute ineffective assistance).

B. Trial counsel was not ineffective for failing to object to the admission of State's Exhibit 1.

[23] Bowman next claims that his trial counsel was ineffective for failing to object to State's Exhibit 1, which was a drawing depicting the location of the police officers and vehicles outside Bowman's home during the shootings. This exhibit is reproduced below:

Tabular or graphical material not displayable at this time. Direct Appeal Ex. Vol. p. 5.

[24] Specifically, Bowman claims that this exhibit did not accurately depict the scene at his house and, accordingly, trial counsel should have objected to its admission. Trial counsel, however, testified at the post-conviction hearing that, as a matter of trial strategy, he chose not to object to this exhibit and instead opted to attack the accuracy of the drawing via cross-examination of the State's own witnesses. Trial counsel testified that he thought it would be more effective to use the drawing to “cast doubt on the credibility or accuracy of [ ] the [S]tate's witnesses” and demonstrate to the jury that the State was “relying upon inaccurate information.” P-C.R. Tr. Vol. II pp. 66, 92. Indeed, several of the State's witnesses admitted on cross-examination that the drawing was inaccurate.

[25] Trial counsel also testified that he thought “the defense scores points with the jury if the evidence is clear, which I thought it was, that the State's offering into evidence a diagram that misrepresents the relevant facts.” Id. at 149. This was a reasonable trial strategy, and we will not second-guess it in hindsight. See Ward v. State, 969 N.E.2d 46, 64 (Ind. 2012) (noting that “ ‘[s]trategic choices made after a thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable.’ ”) (quoting Strickland, 466 U.S. at 690); Timberlake v. State, 753 N.E.2d 591, 605 (Ind. 2001) (“ ‘Judicial scrutiny of counsel's performance is highly deferential and should not be exercised through the distortions of hindsight.’ ”) (quoting Spranger v. State, 650 N.E.2d 1117, 1121 (Ind. 1995)).

[26] Moreover, we fail to see how the admission of this diagram prejudiced Bowman, especially since trial counsel was able to elicit testimony on cross-examination that cast doubt about the diagram's accuracy. Thus, we cannot say that there is a reasonable probability that, but for the admission of this exhibit, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. Accordingly, the PC Court did not clearly err in determining that trial counsel was not ineffective for failing to object to the admission of State's Exhibit 1.

Conclusion

[27] Bowman himself chose an all-or-nothing strategy, and his trial counsel did not misinform him regarding the applicability of the firearm enhancement. Thus, trial counsel's decision not to seek a jury instruction on pointing a firearm as a factually lesser-included offense of the charged crime of attempted murder did not fall below an objective standard of reasonableness. And trial counsel's decision not to object to the admission of State's Exhibit 1 was also a reasonable trial strategy that we will not second-guess on appeal. Accordingly, the PC Court did not clearly err by rejecting Bowman's claim of ineffective assistance of trial counsel, and we affirm the PC Court's denial of Bowman's petition for post-conviction relief.

[28] Affirmed.

FOOTNOTES

1.   In addition, we note that, as he did below, Bowman is proceeding pro se on appeal. Pro se litigants are “ ‘held to the same standards as a trained attorney and [are] afforded no inherent leniency simply by virtue of being self-represented.’ ” Stark v. State, 204 N.E.3d 957, 963 (Ind. Ct. App. 2023) (quoting Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014)).

2.   Bowman alleged many instances of ineffective representation in his post-conviction petition, but he has narrowed his argument to two instances on appeal. Bowman also makes no argument that the PC Court erred by rejecting Bowman's claims of ineffective assistance of appellate counsel.

3.   Bowman was also charged with pointing a firearm for aiming his weapon at his stepson, and he pleaded guilty to this charge prior to trial. Bowman argues that his trial counsel should have sought an instruction on pointing a firearm as a factually lesser-included offense of attempted murder based on his action of shooting at the police officers.

4.   “A person who knowingly or intentionally points a firearm at another person commits a Level 6 felony. However, the offense is a Class A misdemeanor if the firearm was not loaded.” Ind. Code § 35-47-4-3.

5.   Attempted murder is a Level 1 felony with a sentencing range from twenty to forty years. See Ind. Code § 35-41-5-1(a) (providing that attempted murder is a Level 1 felony); Ind. Code § 35-50-2-4(b) (setting sentencing range for Level 1 felonies). Pointing a firearm is generally a Level 6 felony with a sentencing range of six months to two and one-half years. See I.C. § 35-47-4-3; Ind. Code § 35-50-2-7(b).

6.   The firearm enhancement adds an additional five to twenty years to the defendant's sentence. I.C. § 35-50-2-11(g), (h).

7.   This section defines a “firearm” as “any weapon ․ that is ․ capable of expelling[,] or ․ designed to expel[,] or ․ that may readily be converted to expel[ ] a projectile by means of an explosion.” Ind. Code § 35-47-1-5.

8.   Bowman makes no argument that the officers at whom he fired his weapon were not police officers as that term was defined in Indiana Code Section 35-50-2-11(c).

9.   As noted by the PC Court, even if trial counsel had requested the instruction on the lesser-included offense of pointing a firearm, Bowman would have faced a sentence of up to twenty-two and one-half years. See I.C. § 35-50-2-7(b) (setting maximum sentence for a Level 6 felony at two and one-half years); I.C. § 35-50-2-11 (setting maximum firearm enhancement at twenty years). The fact that the jury ultimately found Bowman not guilty on the firearm enhancement is of no moment, as we do not judge counsel's performance in hindsight. Timberlake v. State, 753 N.E.2d 591, 605 (Ind. 2001).

Tavitas, Judge.

Judges Vaidik and Felix concur. Vaidik, J., and Felix, J., concur.