Danny J. Howe, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Danny J. Howe (“Howe”), pro se, appeals the post-conviction court's denial of his petition for post-conviction relief. Howe argues that the post-conviction court erred by denying his petition for post-conviction relief. Concluding that Howe 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 Howe's petition for post-conviction relief.

Facts 1

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

Howe dated Jenifer Pickett off and on between December 2014 and April 2015. Thereafter, the two remained friends, corresponding online and occasionally spending time together. Howe continued to express interest in their friendship developing into a romantic relationship, but Pickett was not interested. During the summer of 2015, Howe began showing up at Pickett's house at unexpected times. On September 11, 2015, Pickett informed Howe that she was dating someone else, and Howe texted Pickett that he was going to kill himself because she would not be in a relationship with him. The next morning, when Pickett let her dog outside, Howe was standing in her back yard and tried to talk to her, but she screamed and her neighbor called the police. Pickett cancelled a date scheduled for that evening with David Sheese because she was concerned that Howe would follow them.

In the late afternoon on September 17, Sheese and Pickett went on a motorcycle ride, and then Sheese dropped Pickett off at her house between 8:00 and 8:30 in the evening. As Sheese was driving out of Pickett's neighborhood, he noticed headlights pull out behind him and begin to follow him. He believed the headlights were for a Jeep, which was the kind of vehicle Pickett had told Sheese that her ex-boyfriend, Howe, drove. Because Sheese was concerned Howe was following him, Sheese pulled into a restaurant parking lot. Howe pulled the Jeep into a parking lot down the street, turned it around to face Sheese, and turned off his headlights.

When Sheese pulled out of the parking lot, Howe resumed following him. Sheese tried to lose Howe by weaving in and out of traffic, speeding, passing numerous cars, and taking a circuitous route, but Howe caught up with Sheese a couple of miles before Sheese arrived home. Sheese did not want to lead Howe to his house, so he kept driving and turned back toward town. A few miles later, after following Sheese for over twenty-three miles, Howe rammed the back of Sheese's motorcycle with the front of the Jeep, sending Sheese and the motorcycle flying into the ditch on the right side of the road.

Sheese landed on his right side and felt pain in his chest. He saw Howe exit the driver's door, retrieve a shotgun from the back seat of the Jeep, and begin walking toward where Sheese and his motorcycle were lying in the ditch. Sheese decided to play dead as Howe used the barrel of the gun to look through the weeds for Sheese. When the barrel of the gun came close to Sheese, he grabbed the barrel and attempted to pull the gun away from Howe. Howe managed to keep ahold of the gun and backed up three or four steps from Sheese. Sheese jumped up and screamed that he did not want to die.

Without saying anything, Howe raised the shotgun to his hip and pulled the trigger. The shot hit Sheese's right arm and the right side of his body. The shot shattered Sheese's forearm, leaving his arm dangling by the skin. Sheese felt “the worst pain you could ever have,” (Tr. Vol. 3 at 83), and believed he “was going to die any minute.” (Id.) Sheese thought he was too injured to run away, so he fell to the ground to play dead again. Howe walked up close to look at Sheese and then returned to the Jeep and sped away. That night, Howe disposed of the shotgun in a lake and his Jeep was destroyed by a suspicious fire in Howe's garage.

After Howe sped away, Sheese tried to locate his cell phone but could not. He stood to walk to the house down the road, but he did not have the strength to walk and returned to the ground. A passing car stopped, and the passengers called authorities and rendered first aid. Sheese was rushed to the hospital where he had exploratory surgery of his chest and abdomen to ensure he did not have any internal injuries from the gunshot wounds. Sheese has had multiple surgeries on his arm, including placement of a steel rod and bone grafts using bone removed from his hips, and he is expected to need additional surgeries in the future. After the blast “there was no skin left on the inside of [Sheese's] forearm,” (id. at 92), so doctors had to stretch the skin from the outside of Sheese's forearm to cover the inside of his arm.

Howe v. State, No. 60A01-1701-CR-238, *1-2 (Ind. Ct. App. Nov. 2, 2017) (footnote omitted).

[4] The State charged Howe with Level 1 felony attempted murder and Level 6 felony obstruction of justice. Howe retained attorneys, Ronald Chapman (“Trial Counsel Chapman”) and William Spaulding (“Trial Counsel Spaulding”) (collectively, “Trial Attorneys”), to represent him at trial.

[5] Approximately two weeks before Howe's trial, the State and Howe's Trial Attorneys held pretrial conferences on September 30 and October 7, 2016 (“the 2016 pretrial conferences”). The 2016 pretrial conferences were “conducted informally” in the prosecutor's office and were not recorded. (Post-Conviction Tr. Vol. 2 at 17). After each informal pretrial conference, the parties filed a pretrial report with the trial court.

[6] During the 2016 pretrial conferences, the parties discussed a possible plea agreement, and the State offered a verbal plea agreement to Howe's Trial Attorneys. Specifically, the State offered that, in exchange for Howe's guilty plea to the Level 1 felony attempted murder charge, the State would recommend that Howe receive a twenty-five (25) year sentence with twenty (20) years executed and five (5) years suspended to probation.

[7] On October 7, 2016, Trial Counsel Chapman memorialized the verbal plea offer in a handwritten document (“handwritten plea document”). Trial Counsel Chapman also included a provision to explain that Howe had been informed of the plea offer as well as an option for Howe to either accept the offer, reject the offer, or indicate that he needed more time. Howe marked an X to note that he was rejecting the plea offer, and he signed his name on the handwritten plea document. That same day, the parties filed, with the trial court, a pretrial report to inform the trial court that they were ready to proceed to trial, and Trial Counsel Chapman filed a proposed instruction for criminal recklessness.

[8] The trial court commenced a four-day jury trial on October 24, 2016. Howe's theory of defense was that he had not intended to kill Sheese. Trial Counsel Chapman argued that the evidence would show that Sheese had made threats and chased Howe and that Howe had merely fired a warning shot in the grass. During the trial, Sheese testified about the facts surrounding Howe's attempted murder offense. Howe testified on his own behalf and testified that he had not intended to kill Sheese. Howe testified that Sheese had been the initial aggressor against him and that he fired only a warning shot into the weeds to scare Sheese from coming after him. During closing arguments, Trial Counsel Chapman argued that Howe had not intended to kill Sheese and that Howe had acted recklessly when he shot towards Sheese. The trial court granted Trial Counsel Chapman's request to give a criminal recklessness instruction and instructed the jury on criminal recklessness. The jury found Howe guilty as charged. The trial court sentenced Howe to concurrent sentences of thirty-nine (39) years for his Level 1 felony attempted murder conviction and two and one-half (21/212) years for his Level 6 felony obstruction of justice conviction.

[9] Thereafter, Howe filed a direct appeal and was represented by appointed appellate counsel, Cara Schaefer Wieneke (“Appellate Counsel”). Appellate Counsel raised an inappropriate sentence argument on direct appeal. Our Court affirmed Howe's sentence.

[10] Subsequently, Howe filed multiple pro se petitions for post-conviction relief. Howe filed his initial petition in May 2018. Thereafter, the State Public Defender's office entered an appearance on behalf of Howe but then filed a motion to withdraw pursuant to Indiana Post-Conviction Rule 1(9)(c). In July 2021, Howe filed a motion to withdraw his post-conviction petition without prejudice, and the post-conviction court granted his motion. After some procedural delays, Howe ultimately filed his final amended pro se petition for post-conviction relief in August 2023.

[11] In that final amended petition, Howe raised claims of ineffective assistance of trial and appellate counsel and a freestanding claim. Specifically, Howe argued that his trial counsel had rendered ineffective assistance by: (1) failing to consult with Howe before rejecting the State's plea offer and failing to promptly communicate the plea offer to Howe; (2) advising Howe to reject the plea offer; (3) failing to strike two jurors for removal; and (4) failing to present mitigating character witnesses at Howe's sentencing hearing. Additionally, Howe argued that his appellate counsel had rendered ineffective assistance by failing to obtain transcripts of the 2016 pretrial conferences and voir dire. Lastly, in Howe's freestanding claim, he argued that his due process rights had been violated during his trial proceedings because the 2016 pretrial conferences had not been recorded.

[12] Thereafter, the State filed its answer to Howe's petition. In the State's answer, it raised an affirmative defense of laches.

[13] The post-conviction court held a hearing in January 2024. Howe appeared pro se. At the time of the post-conviction hearing, Sheese, Trial Counsel Chapman, and Trial Counsel Spaulding were deceased. During the post-conviction hearing, Howe introduced exhibits from his underlying trial proceeding, including some transcribed pages of voir dire, the two pretrial reports from the 2016 pretrial conferences, some handwritten pretrial notes from his Trial Attorneys, and the handwritten plea document. Howe testified on his own behalf, and he presented testimony from Appellate Counsel and the prosecutor from Howe's jury trial (“the Prosecutor”).²

[14] This voir dire transcript revealed that, during jury selection, a female juror (“the female juror”) had informed the trial court and the parties that she was aware of the Prosecutor through some volunteer work that the Prosecutor had done. Upon questioning, the female juror confirmed that such awareness would not interfere with her ability to listen to the evidence, the parties’ arguments, and the trial court's instructions. The female juror also stated that she did not know anything about the case, did not have any interest in the outcome of the case, and did not know of any reason why she could not serve on the jury. Additionally, the voir dire transcript revealed that a male juror (“the male juror”) had expressed some concern and frustration about possibly serving on the jury because of his new job, which was a commission-based job at an auto dealership. The male juror indicated that he wanted to make a good impression on his new employer and that he was concerned about his financial obligations. The male juror confirmed that, nevertheless, he would be able to put any concerns aside to pay attention and listen to all the testimony presented.

[15] The State introduced exhibits, which included the obituaries of Sheese, Trial Counsel Chapman, and Trial Counsel Spaulding. The obituaries showed that Sheese had died in November 2023, Trial Counsel Spaulding had died in May 2022, and Trial Counsel Chapman had died in October 2021. The State asked the trial court to consider the date of Sheese's death when considering the State's affirmative defense of laches. The State also asked the post-conviction court to take judicial notice of the record and pleadings in Howe's trial and post-conviction proceedings, as well as the memorandum decision from Howe's direct appeal. The post-conviction court agreed to take judicial notice of those court documents.

[16] Regarding Howe's ineffective assistance of trial counsel claims relating to the plea offer, Howe testified that he had been “under the impression” that his Trial Attorneys had turned down a plea agreement without telling him about it and before showing him the handwritten plea document. (Post-Conviction Tr. Vol. 2 at 35). Howe also testified that he believed that his Trial Attorneys “did not promptly inform” him of the plea offer. (Post-Conviction Tr. Vol. 2 at 35). Howe testified that Trial Counsel Chapman had brought him the plea offer for a plea on the attempted murder charge on October 7, 2016 and that Trial Counsel Chapman had advised Howe to reject the plea because counsel stated that Howe had committed criminal recklessness and not attempted murder. Howe also testified that he had rejected the plea offer. Howe indicated that he would have accepted the plea offer if he had known about the plea offer on September 30, the first day of the 2016 pretrial conferences, instead of on October 7. When the State cross-examined Howe on his claim that he would have accepted the plea offer, the State pointed out that Howe's defense and testimony at trial was that he had not specifically intended to kill Sheese. The State asked Howe if he would have been able to plead guilty to attempted murder and to tell a judge that he had committed attempted murder despite his defense, and Howe said that he would have.

[17] Howe also testified that he believed that his Trial Attorneys had been ineffective for not presenting mitigating witnesses during his jury trial. He opined that he “might have got[ten] ․ a lesser sentence” if the attorneys had presented character witnesses. (Post-Conviction Tr. Vol. 2 at 37). Howe did not present or indicate any specific witnesses that his Trial Attorneys should have presented, and he did not testify that he had informed his Trial Attorneys of any such potential witnesses. Additionally, Howe testified that he believed that his Trial Attorneys had been ineffective for not striking the female juror and the male juror for being “biased” against him. (Post-Conviction Tr. Vol. 2 at 38).

[18] Howe questioned the Prosecutor about the 2016 pretrial conferences and asked why the conferences had not been recorded. The Prosecutor testified that those conferences had been “conducted informally in [the Prosecutor's] office” and that, following those conferences, the parties had filed pretrial reports with the trial court. (Post-Conviction Tr. Vol. 2 at 17). The Prosecutor explained that the “usual practice” of the trial judge at that time had been for the attorneys to hold final pretrial conferences amongst themselves to “determine whether the case was going to trial and whether [the trial judge] needed to incur the cost and the labor associated with issuing jury summons[.]” (Post-Conviction Tr. Vol. 2 at 24). During the Prosecutor's testimony, he confirmed that he had made a plea offer to the Trial Attorneys and that Trial Counsel Chapman had written that offer in the handwritten plea document that Trial Counsel Chapman had presented to Howe who then rejected it. The Prosecutor testified that he had a “distinct memory” of making the plea offer and watching Trial Counsel Chapman write it down. (Post-Conviction Tr. Vol. 2 at 29-30). The Prosecutor further testified that Trial Counsel Chapman later returned to the Prosecutor's office and showed him Howe's signature and rejection on the handwritten plea document. Additionally, when Howe questioned the Prosecutor about the female juror knowing the Prosecutor from volunteer work, the Prosecutor testified that it was not uncommon for jurors to know who he was given the size of the county, the fact he had grown up there, and his position as prosecutor for fourteen years. The Prosecutor testified that the female juror had been the administrative assistant for a community foundation when he had been on the foundation's scholarship committee and that his interaction with her had been limited to her providing him with student scholarship applications. On cross-examination, the Prosecutor confirmed that the Trial Attorneys did not challenge the female juror for cause.

[19] Howe also questioned Appellate Counsel about his claims that Appellate Counsel had rendered ineffective assistance by failing to obtain a transcript of the 2016 pretrial conferences and a transcript of voir dire. When discussing the 2016 pretrial conferences, Appellate Counsel explained that it was not unusual for informal pretrial conferences not to be recorded. Appellate Counsel explained that such conferences are not hearings and typically consist of the attorneys meeting, talking, and then filing a pretrial conference memo. Additionally, Appellate Counsel testified that, prior to filing Howe's direct appeal brief, she had consulted with Trial Counsel Chapman to discuss any possible appellate issues. Appellate Counsel testified that Trial Counsel Chapman had not indicated that the 2016 pretrial conferences would be useful for any potential appellate issues. Moreover, Appellate Counsel testified that even if she had requested a transcript of the 2016 pretrial conferences, it would not have changed the outcome of Howe's appeal.

[20] In regard to the voir dire transcripts, Appellate Counsel testified that there had been no need to request the voir dire transcript because there were no preserved jury selection issues for appeal. Appellate Counsel testified that she had asked Trial Counsel Chapman if anything had happened during jury selection and that, based on their conversation, “there was nothing there to appeal.” (Post-Conviction Tr. Vol. 2 at 9). Appellate Counsel further testified that it was “very rare” to have a jury selection issue as a direct appeal issue. (Post-Conviction Tr. Vol. 2 at 14).

[21] In February 2024, the post-conviction court issued an order denying post-conviction relief to Howe. The post-conviction court concluded that Howe had failed to prove his claims of ineffective assistance of trial and appellate counsel. The post-conviction court also addressed Howe's freestanding due process claim and concluded that Howe's due process rights had not been deprived during his trial proceeding.³

[22] Howe now appeals.

Decision

[23] Howe argues that the post-conviction court erred by denying him post-conviction relief. At the outset, we note that Howe 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.

[24] “[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).

[25] On appeal, Howe argues that the post-conviction court erred by denying post-conviction relief on his claims of ineffective assistance of trial and appellate counsel. Howe also argues that the post-conviction court erred by denying him relief on his freestanding due process claim.

[26] Before we address Howe's ineffective assistance of trial and appellate counsel claims, we first address Howe's freestanding due process argument. “On post-conviction review, aside from claims of ineffective assistance of counsel, a petitioner may only raise issues that were unknown and unavailable at the time of the original trial or direct appeal.” Pannell v. State, 36 N.E.3d 477, 494 (Ind. Ct. App. 2015), trans. denied. “Thus, if an issue was known and available but not raised on direct appeal, the issue is procedurally foreclosed.” Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007), cert. denied. Here, Howe's freestanding due process claim is based on his trial proceedings; accordingly, it was known and available at the time of the original trial and direct appeal, making the issue procedurally foreclosed and unavailable as a freestanding claim of error in this post-conviction proceeding.⁴ See Pannell, 36 N.E.3d at 494; Perryman v. State, 13 N.E.3d 923, 938 (Ind. Ct. App. 2014) (holding that a petitioner for post-conviction relief waives issues known at the time of the original trial or available on direct appeal), trans. denied.

[27] We now turn to Howe's argument regarding ineffective assistance of trial counsel. Specifically, Howe argues that his Trial Attorneys rendered ineffective assistance by: (1) failing to consult with Howe before rejecting the State's plea offer and failing to promptly communicate the plea offer to Howe; (2) advising Howe to reject the plea offer; (3) failing to strike two jurors for removal; and (4) failing to present mitigating character witnesses at Howe's sentencing hearing.

[28] 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).

[29] 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, 1073 (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.

[30] We first address Howe's post-conviction claims regarding the plea offer. Howe contends that his Trial Attorneys were ineffective for failing to consult with him before rejecting the State's plea offer, failing to promptly communicate the plea offer to him, and advising him to reject the plea offer. For Howe “to succeed on the merits, he would have to show that all the evidence points unerringly to the conclusion that his counsel were deficient.” Isom, 170 N.E.3d at 640. As the post-conviction court concluded, Howe failed to meet this burden.

[31] The post-conviction court found that Howe's own evidence showed that his Trial Attorneys and the Prosecutor had discussed a plea agreement on September 30 and October 7, that Trial Counsel Chapman presented the plea offer to Howe on October 7, and that Howe rejected the plea that same day. The post-conviction court concluded that Howe's evidence was inconsistent with his allegation that his Trial Attorneys had rejected the plea offer without consulting Howe and his allegation that his Trial Attorneys had failed to advise him of the plea in a timely manner. The post-conviction court also concluded that Howe's Trial Attorneys had not performed deficiently by advising Howe to reject the plea. The post-conviction court determined that that advisement was a strategic decision given Howe's theory of defense and his assertion of innocence to the attempted murder charge. On appeal, Howe fails to show that his Trial Attorneys rendered ineffective assistance of counsel or that the post-conviction court's findings and conclusions are erroneous. Because Howe failed to meet his burden on his ineffective assistance of counsel claims regarding the plea offer, we affirm the post-conviction court's denial of post-conviction relief on the plea offer claims. See Isom, 170 N.E.3d at 640 (affirming a post-conviction court's denial of the petitioner's ineffective assistance of counsel claim regarding a plea offer).

[32] Next, we address Howe's argument that his Trial Attorneys were ineffective for failing to object to and strike two jurors for removal. A trial attorney's decision whether to challenge a juror “is a matter of trial tactics.” Marsillett v. State, 495 N.E.2d 699, 706 (Ind. 1986). “The purpose of voir dire is to ascertain whether prospective jurors can render an impartial verdict based upon the law and the evidence ․ and [to] weed out those who show they cannot be fair to either side.” Gibson v. State, 43 N.E.3d 231, 238 (Ind. 2015) (internal quotation marks and citations omitted), cert. denied. 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).

[33] To support this ineffective assistance of trial counsel claim, Howe presented various transcript pages from voir dire. This evidence revealed that the female juror had indicated that she had been aware of the Prosecutor through some volunteer work that the Prosecutor had done, but she had confirmed that such awareness would not interfere with her ability to listen to the evidence, the parties’ arguments, and the trial court's instructions. The evidence also revealed that the male juror had expressed some hesitation about serving as a juror because he had recently started a new, commission-based job. However, he confirmed that he would be able to put any concerns aside to pay attention and listen to all the testimony presented.

[34] The post-conviction court found that Howe's own evidence showed that the two jurors confirmed that they could pay attention and listen, and the post-conviction court concluded that Howe had failed to show what objection that his Trial Attorneys should have raised to strike the jurors. Additionally, the post-conviction court concluded that the Trial Attorneys’ decision to leave the jurors on the jury was a strategic decision. On appeal, Howe fails to show that his Trial Attorneys rendered ineffective assistance of counsel or that the post-conviction court's findings and conclusions are erroneous. Accordingly, we affirm the post-conviction court's denial of post-conviction relief on this claim. See Marsillett, 495 N.E.2d at 706 (“Failure to remove a juror who had some relationship to the victim and the defendant, without more, does not demonstrate that counsel was deficient in representing appellant's interests.”).

[35] Lastly, we review Howe's ineffective assistance of trial counsel claim regarding the failure to call mitigating character witnesses during his sentencing hearing. “A decision regarding what witnesses to call is a matter of trial strategy which an appellate court will not second-guess[.]” Brown v. State, 691 N.E.2d 438, 447 (Ind. 1998). See also Marsillett, 495 N.E.2d at 706 (explaining that “deciding whether to call a particular witness to testify on behalf of the defendant is a matter within trial counsel's strategy”). “Absent a clear showing of prejudice, this Court will not declare counsel ineffective for failure to call a certain witness.” Marsillett, 495 N.E.2d at 706. “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.” Lee v. State, 694 N.E.2d 719, 722 (Ind. 1998), cert. denied.

[36] During the post-conviction hearing, Howe failed to present evidence to support his claim regarding mitigating witnesses. He neither identified potential witnesses nor provided affidavits of what their testimony would have been had his counsel called them. Howe did not present any evidence to show that he had informed his Trial Attorneys of proposed mitigating character witnesses, and he merely opined that he “might have got[ten] ․ a lesser sentence” if the attorneys had presented character witnesses. (Post-Conviction Tr. Vol. 2 at 37). Because Howe failed to meet his burden on this ineffective assistance of trial counsel claim, the post-conviction court did not err by denying relief to Howe on this claim. See Lee, 694 N.E.2d at 722.

[37] We now turn to Howe's ineffective assistance of appellate counsel claims. In Howe's post-conviction petition, he argued that Appellate Counsel had rendered ineffective assistance by failing to obtain transcripts from the 2016 pretrial conferences and voir dire. During the post-conviction hearing, Howe confirmed those specific ineffective assistance of appellate counsel claims and questioned Appellate Counsel about those alleged claims. On appeal, however, Howe attempts to argue a new claim relating to ineffective assistance of appellate counsel. Specifically, he asserts that Appellate Counsel was ineffective by failing to present an appellate argument that the two jurors were biased. Because Howe failed to raise this claim in his post-conviction petition, he has waived appellate review of such a claim. See Isom, 170 N.E.3d at 640 (holding that a petitioner is prohibited from raising an issue in his post-conviction appeal where he failed to raise the issue below); Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002) (explaining that issues not raised in a post-conviction petition may not be raised for the first time in a post-conviction appeal), reh'g denied, cert. denied; Ind. Post-Conviction Rule 1(8) (“All grounds for relief available to a petitioner under this rule must be raised in his original petition.”). Accordingly, we will address only the claim that Appellate Counsel rendered ineffective assistance by failing to obtain transcripts from the 2016 pretrial conferences and voir dire.

[38] We apply the same standard of review to a claim of ineffective assistance of appellate counsel as we do to an ineffective assistance of trial counsel claim. Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013). Thus, a petitioner alleging a claim of ineffective assistance of appellate counsel is required 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, 763 N.E.2d at 444 (quoting Strickland, 466 U.S. at 687). “Failure to satisfy either of the two prongs will cause the claim to fail.” French, 778 N.E.2d at 824.

[39] The post-conviction court concluded that Howe had failed to show that Appellate Counsel had rendered ineffective assistance by failing to obtain the transcripts. The evidence in the post-conviction hearing showed that the 2016 pretrial conferences were informal meetings between the attorneys and were not recorded. The post-conviction court concluded that Appellate Counsel could not be found ineffective for failing to obtain pretrial conference transcripts that did not exist. In regard to the voir dire transcripts, Appellate Counsel testified that there had been no need to request the voir dire transcript because there was no preserved jury selection issue for appeal. Appellate Counsel testified that she had asked Trial Counsel Chapman if anything had happened during jury selection and that, based on their conversation, “there was nothing there to appeal.” (Post-Conviction Tr. Vol. 2 at 9). The post-conviction court concluded that “there was no reason for [Appellate Counsel] to request a voir dire transcript” and that Howe had failed to meet his burden of showing ineffective assistance of appellate counsel. (App. Vol. 2 at 46). On appeal, as in his post-conviction hearing, Howe fails to show how Appellate Counsel's performance was deficient and fails to show that counsel's performance prejudiced Howe. Accordingly, the post-conviction court did not err by denying post-conviction relief on Howe's claims of ineffective assistance of appellate counsel.

[40] Because Howe has failed to demonstrate “unmistakably and unerringly” that his trial and appellate counsel rendered ineffective assistance, we affirm the post-conviction court's denial of Howe's petition for post-conviction relief. See Isom, 170 N.E.3d at 632 (explaining that a post-conviction petitioner appealing from a negative judgment denying post-conviction relief must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision).

[41] Affirmed.

FOOTNOTES

2.   The prosecutor at Howe's trial was Donald VanDerMoere II, and he was an Owen County Circuit Court judge at the time of the post-conviction hearing.

3.   In the post-conviction court's order, after reviewing Howe's post-conviction claims, the post-conviction court also concluded that the State had met its burden of proving the affirmative defense of laches, resulting in Howe's post-conviction claims being barred by laches. Specifically, the post-conviction court noted that Sheese had died five years, five months, and twenty-three days after Howe had filed his first post-conviction petition in May 2018, and the post-conviction court determined that Howe had unreasonably delayed in seeking relief and that that delay had prejudiced the State. On appeal, Howe does not challenge the post-conviction court's conclusion that his post-conviction claims were barred by laches. As did the post-conviction court, the State addresses Howe's post-conviction claims. However, the State also contends that this Court could affirm the post-conviction court's judgment solely on Howe's failure to challenge the post-conviction court's laches determination. Because the post-conviction court and the State did not rely on the laches argument and have addressed Howe's post-conviction claims, we will do the same.

4.   We recognize that the post-conviction court addressed this freestanding claim. We, however, “do not defer to the post-conviction court's legal conclusions.” Stephenson, 864 N.E.2d at 1028.

Pyle, Judge.

Judges Weissmann and Felix concur. Weissmann, J., and Felix, J., concur.