Timothy Alford, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Timothy Alford appeals from the post-conviction court's order denying him post-conviction relief. Finding no clear error, we affirm.

Issues

[2] Alford presents the following issues for review, restated as follows:

I. Whether Alford's trial counsel provided ineffective assistance.

II. Whether Alford's appellate counsel provided ineffective assistance.

Facts and Procedural History

[3] “S.M. was born on May 11, 2001.” Alford v. State, No. 18A-CR-1152, *1 (Ind. Ct. App. Jan. 11, 2019) (mem.). “His parents, Jeremy and Stacy, were divorced when he was very young, and Stacy had primary physical custody of S.M., with Jeremy having parenting time every other weekend.” Id. By 2012, Jeremy and S.M. lost contact with each other.

[4] “In 2014, while S.M. continued to be in her physical custody, Stacy was running a daycare out of the first floor of her home on West Broadway in Shelbyville.” Id. “Beginning in October 2014, Alford assisted Stacy with the daycare.” Id. “Stacy knew Alford from having dated his brother sometime earlier.” Id. “S.M. was also acquainted with Alford and thought he was one of [his] friends.” Id. (internal quotations and citation omitted). “In the fall of 2014, S.M. was thirteen years old and a freshman in high school.” Id. “He liked video games and would usually come home from school and go straight to his room on the second floor to play [video games].” Id.

[5] “Sometime that fall, Alford entered S.M.’s room and laid on S.M.’s bed behind him while S.M was laying on his right side playing a game.” Id. “After a while, Alford got up and left the room.” Id. “On a second occasion, Alford again entered S.M.’s room and laid on S.M.’s bed behind him while S.M. was watching YouTube.” Id. “This time, however, Alford reached around with his hand and began rubbing S.M.’s penis over his shorts until S.M. got an erection.” Id. “Alford then left the room.” Id. On another occasion, Alford entered S.M.’s room while he was playing video games and laid on S.M.’s bed behind S.M. Once again, he reached around with his hand and stroked S.M.’s penis until S.M. became erect. But this time Alford “pulled down S.M.’s shorts and put his mouth on S.M.’s penis until S.M. ejaculated.” Id. Alford then left the room. “On a fourth occasion, S.M. was asleep in his bed when he woke up to find Alford had pulled his shorts down and had his mouth on S.M.’s penis.” Id. “After S.M. ejaculated, Alford left the room.” Id.

[6] “Each time Alford entered S.M.’s room, S.M. ‘thought if I ignored him he'd leave me alone.’ ” Id. (quoting Trial Tr. Vol. 1, p. 158). S.M. was confused and could not understand Alford's actions. He did not report the events to his mother, because he did not know how to tell her and did not trust her. “In January 2015, Stacy, with Alford's help, moved the daycare to a new location.” Id. “S.M. testified Alford had touched him inappropriately exclusively at the Broadway house.” Id.

[7] “On S.M.’s fourteenth birthday, in May 2015, Jeremy reached out to S.M. and they began a regular parenting time schedule again.” Id. at *2. “After Stacy's boyfriend moved into her house in late 2016, S.M. asked to live with Jeremy ․ because he thought the boyfriend was violent.” Id. “Jeremy filed a petition to modify custody in late October 2016 and when Stacy was served with the petition, she told S.M. to pack his things.” Id. “From that point on, S.M. lived with Jeremy[.]” Id. “Custody was officially modified by agreement on April 7, 2017.” Id.

[8] “Once S.M. moved into their home permanently, [Jeremy's wife] observed behaviors that caused her to be concerned about him.” Id. Sometime in November 2016, after living with Jeremy for around three weeks, S.M. told Jeremy's wife that he wanted to be placed on antidepressants. After Jeremy's wife questioned him, S.M. disclosed Alford's abuse. Jeremy and his wife reported the abuse to law enforcement officers who arranged for S.M. to be interviewed by specially trained personnel at the Child Advocacy Center. A detective later interviewed Alford. Alford confirmed working for Stacy in October 2014, that he was alone with S.M. frequently, and that he would sometimes enter S.M.’s room and lay on his bed while he was playing video games. But Alford denied any sexual contact.

[9] The State charged Alford with Level 1 felony child molesting, Level 5 felony child solicitation, and alleged that he was an habitual offender. A jury found Alford guilty as charged and he admitted his habitual offender status. “As part of that admission, Alford and the State agreed that any habitual offender enhancement would be capped at fifteen years.” Id. “Prior to sentencing, Alford filed a motion for judgment on the evidence on the child solicitation charge, and the trial court and the State both agreed that there was no evidence elicited at trial to support that charge. The trial court granted the motion and Alford was sentenced on only the child molesting conviction.

[10] “The trial court found as mitigating circumstances that incarceration would be a hardship for Alford because he had a number of medical conditions and that he pleaded guilty to the habitual offender enhancement, eliminating the need to conduct a second phase of his trial and accepting responsibility for that charge.” Id. “The trial court found as aggravating circumstances Alford's extensive criminal history, his lack of success while on probation, and that he violated a condition of his release in this case by appearing in court while in possession of contraband and controlled substances, incurring new charges.” Id. “The trial court specifically rejected the State's allegation that Alford was in a position of care, custody, or control with respect to S.M.” Id. Finding that Alford was not the worst of the worst, the court sentenced him to thirty-five years for the child molesting conviction, enhanced by ten years for the habitual offender finding.

[11] Alford appealed his conviction and sentence, arguing that there was insufficient evidence to support his child molesting conviction and that his sentence was inappropriate in light of the nature of his offense and his character. As for his sufficiency challenge, he argued that the State failed to prove that S.M. was thirteen at the time of the offense. We concluded that there was sufficient evidence because S.M. consistently stated that the molestation occurred in 2014, in the Broadway house, when he was thirteen years old. Id. at *3. We rejected Alford's claim that S.M. was unsure of when the molestation occurred and how old he was based on one instance in S.M.’s testimony where he misspoke and said he was fourteen years old. Id.

[12] Alford also argued that S.M.’s testimony was inherently unreliable because: (1) there were no eyewitnesses; (2) there was no forensic evidence; (3) there was no corroborating evidence; (4) it occurred two years before it was reported; and (5) S.M. had a motive to fabricate a reason for his custody to be changed to his father. Id. We concluded that the incredible dubiosity rule was inapplicable. Id. at *4. More specifically, we found that: (1) S.M.’s testimony was not inherently contradictory or equivocal; (2) the fact that S.M. waited for two years until he could tell a person he trusted about an upsetting event is not so improbable that no reasonable person could believe the allegations; (3) that if S.M. was so upset with his mother that he would fabricate allegations so she would lose custody of him, it is unlikely that he would accuse a “peripheral person” in the household rather than make a direct accusation against his mother or her boyfriend; and (4) circumstantial evidence of Alford's admission that he worked in the home during the timeframe of the child molestation allegations, he was often alone with S.M., and that he would lay on S.M.’s bed with him while S.M. was playing video games supported the conviction. Id.

[13] With respect to his sentence, Alford argued on appeal that his sentence was inappropriate. But instead of making arguments in reference to his character or the nature of his offense, he argued that his forty-five-year sentence “ ‘is, effectively, a death sentence’ because [he] was fifty-two years old when sentenced and ‘in extremely poor health[.]’ ” Id. (quoting Appellant's Br. p. 17). He pointed to the probation department's recommendation of a thirty-three-year sentence in support of his argument. Id. Nevertheless, we turned to the two components of Appellate Rule 7(B) for our review.

[14] As for the nature of the offense, we concluded that Alford's offense was not the worst of the worst, but that an aggravated, less-than-maximum sentence was appropriate. He faced a maximum forty years for Level 1 felony child molesting, and would have faced a twenty-year-maximum sentence for the habitual offender enhancement but for his agreement with the State to cap that sentence at fifteen years. The trial court imposed far less than the maximum sentence for a single charged act, when multiple acts were supported by the record and those acts presumably occurred when other children were in the home which also served as a daycare. Thus, Alford's thirty-five-year sentence, enhanced by ten years for his habitual offender status, with three years suspended to probation was not inappropriate. Id.

[15] As for the character of the offender, we concluded that neither his advanced age nor his poor health constituted virtuous character traits. And though his five prior misdemeanor convictions, three prior felony convictions, and four probation violations were not offenses against a person, he was taken into custody at the end of his trial because he was found to be in possession of drugs and contraband when he arrived at the county jail. We found “his disregard for the law [to be] apparent in his blatant commission of a crime while in court.” Id. at 5. Alford's petition to transfer from his direct appeal was denied.

[16] Next, on October 20, 2023, Alford filed a petition for post-conviction relief. He alleged that both his trial and appellate counsel provided ineffective assistance that violated the Sixth Amendment right to counsel and the Fourteenth Amendment right to a fair trial. In an detailed order, the post-conviction court denied Alford's petition.

Discussion and Decision

[17] “Post-conviction proceedings do not provide criminal defendants with a ‘super-appeal.’ ” Garrett v. State, 992 N.E.2d 710, 718 (Ind. 2013). Rather, they provide a narrow remedy to raise issues that were not known at the time of the original trial or were unavailable on direct appeal. Id. Issues available but not raised on direct appeal are waived, while issues litigated adversely to the defendant on direct appeal are res judicata. Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009).

[18] A petitioner who has been denied post-conviction relief appeals from a negative judgment. Saunders v. State, 794 N.E.2d 523, 526 (Ind. Ct. App. 2003). A post-conviction court's denial of relief will be affirmed unless the petitioner shows that the evidence leads unerringly and unmistakably to a decision opposite to that reached by the post-conviction court. Id. We review the post-conviction court's factual findings for clear error but do not defer to its conclusions of law. Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). We will not reweigh the evidence or judge the credibility of the witnesses. Hinesley v. State, 999 N.E.2d 975, 981 (Ind. Ct. App. 2013), trans. denied.

[19] When the post-conviction judge is the same judge who conducted the original trial, a post-conviction court's findings and judgment are entitled to greater than usual deference, Hinesley v. State, 999 N.E.2d 975, 982 (Ind. Ct. App. 2013), trans. denied, because the judge “was in an exceptional position to assess not only the weight and credibility of the factual evidence, but also ․ whether it deprived the defendant of a fair trial[.]” State v. Dye, 784 N.E.2d 469, 476 (Ind. 2003).

I. Assistance of Trial Counsel

[20] Alford claims that the post-conviction court erred in rejecting his claims of ineffective assistance of trial counsel. He further argues that his trial counsel erred by (1) informing the jury that Alford is gay in the opening statement without disclosing the strategy prior to doing so; (2) harming his defense by eliciting testimony from Alford that he supervised the daycare children while the owner took bathroom breaks; (3) presenting the argument that the pending custody modification was a motive for S.M. to fabricate the allegations of sexual abuse; (4) allowing Alford to plead guilty to the habitual offender enhancement after Alford collapsed in the courtroom after hearing the verdict; and (5) failing to move for a change of venue due to community outrage about the crime.¹

[21] In considering claims of ineffective assistance of trial counsel, we have stated:

We evaluate claims of ineffective assistance under the two-part test originally set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). A petitioner must demonstrate that his or her counsel performed deficiently, resulting in prejudice. Counsel renders deficient performance when his or her representation fails to meet an objective standard of reasonableness. Prejudice exists when a petitioner demonstrates that, if not for counsel's deficient performance, there is a reasonable probability that the result would have been different. A petitioner must prove both parts of the test, and failure to do so will cause the claim to fail.

We strongly presume counsel provided adequate assistance and exercised reasonable professional judgment in all significant decisions. Counsel's conduct is assessed based on facts known at the time and not through hindsight.

Cole v. State, 61 N.E.3d 384, 387 (Ind. Ct. App. 2016) (citations omitted), trans. denied.

A. Opening Statement Strategy

[22] At the hearing on the petition for post-conviction relief, Alford's counsel testified that Alford informed him that he was gay. He further testified that during voir dire at trial, some of the potential jurors made statements about attending church, and one potential juror made a statement that people could be judged by a “higher court,” which counsel confirmed as a reference to that person's faith. Trial Tr. Vol. 1, p. 58. Again, during voir dire, Alford's counsel said, “it's gonna come out that the Defendant in this case is actually gay. Does anyone have a problem with that ․ ? Id. at 82. Some jurors responded that it would not. But one juror responded that he had religious convictions about a defendant being judged even if he was found innocent. In a follow-up question, Alford's counsel asked the potential juror if he believed that someone who is homosexual “would be more predisposed to be a sexual person or sexual predator,” to which the juror responded “No.” Id. at 82-83.

[23] During his opening statement, Alford's counsel stated that Alford “is gay. He's attracted to men, he's not attracted to boys. He would never do anything like he's accused of doing with somebody so young.” Id. at 133. Trial counsel further stated that Alford was innocent and that he was “absolutely” going to testify. Id.

[24] The post-conviction court found that Alford's counsel “used his years of experience to determine a trial strategy in this case.” Petitioner's App. Vol. 2, p. 103. And the court noted Alford's counsel's testimony that “he believed it was in his client's best interest to address the fact that petitioner was gay.” Id. Counsel further testified that “confronting this fact could help establish trust with the jurors.” Id. at 104. And Alford testified at the hearing on his petition “that most people knew he was gay because of his mannerisms.” Id. In denying relief on this issue, the post-conviction court found as follows:

Given the petitioner's insistence on testifying at trial, his admitted “flamboyance”,[sic] which could reasonably have led a jury to infer that he was gay, and the fact that the alleged victim was also male—trial counsel could reasonably conclude that the best strategy would be to blunt any potential biases, prejudices or preconceptions on the party of the jury by getting in front of the issue, by “inoculating” the jury to this issue or evidence. [Trial counsel's] strategic decision not to hide something he believed would come out anyway and to build rapport with the jury was logical.

Id.

[25] On appeal, Alford points to his trial counsel's testimony during the post-conviction hearing that he did not recall having any discussions with Alford about this trial strategy and that Alford told him his sexual orientation. He contrasts that testimony with his own testimony that the opening argument strategy was a total surprise to him, that if consulted, he would have told his counsel not to use that strategy, and that he never shared his sexual orientation with his counsel. Yet, on cross-examination, Alford conceded his observable “flamboyancy” and acknowledged that his sexual orientation would be apparent to the jury. PCR Tr. Vol. I, p. 118. And Alford conceded that there was a benefit to getting negative information in front of the conservative jury.

[26] And Alford contends that his counsel's strategy ran afoul of the Rules of Professional Conduct in that it manifested a bias or prejudice based on sexual orientation. Petitioner's Br. p. 16. However, in context, Alford's counsel said that in molestation cases where his client was heterosexual, he would not mention his client's sexual orientation because most jurors would assume as much.

[27] “[T]he content of an opening statement, absent some egregious blunder, is ․ a matter of strategy.” Wisehart v. State, 693 N.E.2d 23, 42 (Ind. 1998). “Counsel is given ‘significant deference in choosing a strategy which, at the time and under the circumstances, he or she deems best.’ ” Benefield v. State, 945 N.E.2d 791, 799 (Ind. Ct. App. 2011) (quoting Potter v. State, 684 N.E.2d 1127, 1133 (Ind. 1997)), trans denied. “ ‘A reviewing court will not second-guess the propriety of trial counsel's tactics.’ ” Id. (quoting Davidson v. State, 763 N.E.2d 441, 445 (Ind. 2002) (citation and quotation marks omitted)). “ ‘[T]rial strategy is not subject to attack through an ineffective assistance of counsel claim, unless the strategy is so deficient or unreasonable as to fall outside of the objective standard of reasonableness.’ ” Id. (quoting Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998)). “ ‘This is so even when such choices may be subject to criticism or the choice ultimately prove[s] detrimental to the defendant.’ ” Id. (citation and quotation marks omitted).

[28] Here, we agree with the post-conviction court's conclusion that counsel's strategy was reasonable. Therefore, Alford has failed to establish deficient performance. And even if we were to find the strategy unreasonable, which we do not, Alford also failed to establish prejudice. Alford conceded that anyone who is around him for any amount of time would perceive his flamboyance and would likely reach conclusions about his sexual orientation. His counsel's decision to blunt the impact of that perception by addressing it up front did not prejudice Alford.

B. Alford's Testimony

[29] Next, Alford claims that his trial counsel “elicited irrelevant, extraneous, and prejudicial testimony” from him during the trial. Petitioner's Br. p. 17. More specifically, he challenges his counsel's decision to ask him questions about his duties at the daycare. Alford testified at trial that his work included washing toys, doing data entry for a meal reimbursement program, helping S.M.’s mother move the daycare from the old location to the new one, supervising the daycare children when S.M.’s mother needed to take a bathroom break, and driving her children to other places when necessary. He contends on appeal that this testimony was the result of “[t]hree meetings [which] is inadequate preparation.” Id. at 18. He claims that it was trial counsel's “duty to marshal the evidence” and that he did not do so because of the inadequate preparation for trial. Id.

[30] At the post-conviction hearing, Alford's trial counsel testified that he asked Alford about his other duties at the daycare for the strategic reason to show that Alford was trustworthy around children. Counsel first mentioned that theme in his opening statement. In context, the questions and answers were as follows:

Q: Alright. Would it be fair to say that your work for the daycare was very different at the two different locations?

A: Yes.

Q: Okay, and to make sure I have this right, I mean, you testified that the Broadway, you washed toys and helped move. Is that right?

A: That is correct.

Q: And at the Mechanic location you did data entry. Is that right?

A: That is correct.

Q: Did you do anything else on Mechanic besides the data entry?

A: Yes, the longer I was there more jobs were added. If, like if the kids were in the backyard playing and Stacy needed a bathroom break while I was there on the computer I would walk out and watch the kids in the yard so she could use the bathroom, or Stacy needed me to run her children anywhere, I ran them several places.

Trial Tr. Vol. 2, pp. 44-45.

[31] The post-conviction court stated it was not clear from the record that counsel intended to elicit testimony from Alford that he watched children at the daycare. But, in any event, it was unclear that it was a contested fact. And Alford's answer may have exceeded the scope of his attorney's question. If that was the case, it would have been unreasonable for Alford's counsel to object to his own client's testimony in front of the jury and ask that it be stricken from the record. According to the post-conviction court, to the extent the testimony was problematic, that would have emphasized the testimony. The post-conviction court concluded, nevertheless, that the mere asking of the question—“Did you do anything else on Mechanic besides the data entry?—was not clearly unprofessional and/or ineffective.

[32] We agree with the post-conviction court's findings and conclusions here. First, there are no cases suggesting how many times counsel must meet with his client to support adequate preparation for trial, nor should there be. A handful of meetings lasting several hours may be very effective, while multiple meetings lasting a few minutes each might not. Thus, Alford has not persuaded us that counsel was ineffective on this ground.

[33] Next, to the extent counsel's strategy was to show that he was trustworthy around children, we will not second guess it. Benefield, 945 N.E.2d at 799. And although the testimony does not appear to have been elicited by counsel, Alford's testimony did not reveal bad acts with the scope of Evidence Rule 404. See Stevens v. State, 691 N.E.2d 412, 423 (Ind. 1997) (videotaping baseball game, attending neighborhood Bible study, and taking child fishing were not bad acts). None of Alford's testimony suggested that he was alone with children under suspicious circumstances or engaged in any wrongdoing. We conclude that the Alford has not established ineffective assistance of trial counsel on this ground.

C. Motive To Fabricate

[34] At trial, Alford's counsel offered the theory that S.M. fabricated the molestation charges against Alford with the aim of being removed from his mother's physical custody. To be sure, S.M. did not care for his mother and referred to her at trial as his “egg donor.” Trial Tr. Vol. 1, p. 44. And Alford insisted he was innocent of the charges. S.M. waited to disclose the sexual abuse for several years at around the time his father petitioned for a change in custody. The post-conviction court found this strategy to be a reasonable one and offered that it might have constituted ineffective assistance of counsel not to suggest an alternate motive for S.M.’s testimony.

[35] Now, Alford argues that the strategy was not reasonable because “[t]hat petition for change of custody was filed on October 25, 2016, well before the allegations of sexual abuse were made.” Petitioner's Br. p. 20. An examination of State's Exhibit 12, the Agreed Entry in the custody modification, notes that S.M. was “involved with individual and family counseling to deal with alleged traumatic issues.” Trial Exhibit Vol. I, p. 47 (Def. Exhibit A). It would be a reasonable argument in Alford's defense that S.M. felt a need to fabricate the criminal charges against Alford to ensure that his custody was modified.

[36] “There is no one way to defend a particular defendant, and so a reviewing court must grant the trial attorney significant deference in choosing a strategy which, at the time and under the circumstances, he or she deems best.” Potter, 684 N.E.2d at 1133. Trial counsel testified at the post-conviction hearing that in his experience molest cases are hard to try because the defendants have a motive to lie and juries want to believe the children. PCR Tr. Vol. II, p. 42. Trial counsel also testified that, in his experience, prosecutors often argue that the victim does not have an incentive to lie. Id. at 65. Consequently, counsel chose that strategy because “any time [he] can create a thought that maybe the victim does have an incentive. That's kinda frankly, a rare opportunity in a case like this.” Id. We agree with the post-conviction court that the strategy was reasonable. Alford has not demonstrated that counsel's strategy was ineffective.

D. Admission to Habitual Offender Enhancement

[37] We first note that Alford makes two arguments which were not raised in the post-conviction proceedings; namely, challenging the adequacy of the trial court's advisements prior to accepting Alford's admission to the habitual offender enhancement, and challenging the court's acceptance of an Alford plea. See Petitioner's App. Vol. 2, pp. 10-11 (PCR petition); North Carolina v. Alford, 400 U.S. 25 (1970) (defendant maintains innocence but pleads guilty for reasons of self-interest); Norris v. State, 896 N.E.2d 1149 (Ind. 2008) (Indiana courts do not accept Alford pleas). “Issues not raised in the petition for post-conviction relief many not be raised for the first time on appeal.” Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001).

[38] In his reply brief, Alford claims the State raised the issue of the deficiencies in the court's advisements in its response to his petition. Petitioner's Reply Br. p. 4 (citing Petitioner's App. Vol. 2, p. 96). But an examination of the State's response reveals that the State offered that Alford “never testified that he did not understand what was happening or that he was having a medical episode that limited mental capacity” and that his “responses during the guilty plea shows that the petitioner understood his rights and waived those rights.” Petitioner's App. Vol. 2, p. 86. Put differently, the State argued Alford had not established a nexus between his medical episode and his decision to enter into his guilty plea, i.e., that his medical episode compromised his ability to fully participate in and to decide to enter into the plea. The State's argument did not raise the issue that the trial court's advisements were deficient, the argument Alford advances for the first time on appeal. And as for the Alford plea argument, the record reveals that Alford continued to deny that he committed the underlying offense, not that he had prior convictions which established his habitual offender status.

[39] Alford claims that his counsel was ineffective by advising him to accept a plea to the habitual offender enhancement. Alford collapsed in court upon hearing the verdict in the guilt phase. It was later learned that Alford concealed multiple items, including cigarettes, a lighter, and prescription medications, in a bag he placed in his anal cavity prior to the last day of trial. He was transported to the hospital at the conclusion of trial, the bag of items was expelled, and he was released from the hospital that same day. Alford contends that counsel's error was in advising him to admit to the enhancement when he was under the stress of a medical issue.

[40] Here, we find neither deficient performance nor prejudice. Alford was convicted of a Level 1 felony. As such, his sentencing exposure for an habitual offender enhancement at the pertinent time was between six years and twenty years. Ind. Code § 35-50-2-8 (h)(i)(1) (2015). Alford and the State reached an agreement that his habitual offender enhancement would be capped at fifteen years executed if he admitted to the enhancement. Trial Tr. Vol. 2, p. 180. And when the court sentenced him, Alford received a ten-year enhancement for his habitual offender status, less than the agreed upon cap and half of the maximum sentencing exposure.

E. Change of Venue

[41] Alford claimed in his petition for post-conviction relief that counsel “failed to move for a change of venue when the pre-trial publicity and exposure on Facebook was extremely damaging to the right to a fair trial.” Petitioner's Appendix Vol. II, p. 11. “A defendant is entitled to a change of venue upon a showing that jurors are unable to disregard preconceived notions of guilt and render a verdict based on the evidence.” State v. Moore, 678 N.E.2d 1258, 1262 (Ind. 1997). “Disposing of a motion for a change is within the sound discretion of the trial court. Id. “The decision to seek a change of venue is generally a matter of trial strategy that we will not second-guess on collateral attack.” Id. “Stated another way, the reasonableness of counsel's decision not to seek a change of venue is assessed based on whether there was such prejudice against the defendant that there is a reasonable probability the motion would have been granted by a trial judge acting according to law.” Id. “Even where this showing is made, reasonable trial strategy might have dictated keeping the case in the same venue for different reasons, and there no ineffective assistance arises.” Id. at 1263. “To prove [the defendant] was owed a different venue, [the defendant] had to show: (1) there was prejudicial pretrial publicity about [the] case, and (2) at least one juror on [the] panel was unable to render an impartial verdict due to pretrial publicity.” Crossland v. State, 256 N.E.3d 517, 524 (Ind. 2025).

[42] Alford's trial counsel testified that he did not have any reason to move for a change of venue because he did not find anything on social media, he did not recall any news coverage of the crime, nor was there any general uproar about the case. And he further testified that he routinely asks potential jurors about their knowledge of the case. None of the jurors indicated that they had any prior knowledge of the case.

[43] Alford argues that his testimony and that of his brother about Facebook posts establish prejudicial pretrial publicity of the case. But that testimony was considered and discounted. And even if that testimony established prejudicial pretrial publicity, Alford failed to establish that any one of the jurors could not render an impartial verdict because of the same. The post-conviction court did not err by finding that Alford had failed to establish ineffective assistance on this ground.

[44] Thus, we conclude that Alford has failed to establish ineffective assistance of trial counsel.

II. Assistance of Appellate Counsel

[45] Alford contends that his appellate counsel was ineffective. “In reviewing claims of ineffective assistance of appellate counsel, we use the same standard applied to ineffective assistance of trial counsel claims.” Harris v. State, 861 N.E.2d 1182, 1186 (Ind. 2007). Claims of appellate ineffectiveness usually fall into one of three types: “(1) denial of access to an appeal[;] (2) waiver of issues[;] and (3) failure to present issues well.” Coleman v. State, 196 N.E.3d 731, 740-41 (Ind. Ct. App. 2022), trans. denied.

[46] Alford's claim falls into the third category. “Claims of inadequate presentation of certain issues, as contrasted with the denial of access to an appeal or waiver of issues, are the most difficult for defendants to advance and reviewing tribunals to support.” Henley v. State, 881 N.E.2d 639, 653 (Ind. 2008). “And this is so because such claims essentially require the reviewing court to reexamine and take another look at specific issues it has already adjudicated to determine ‘whether the new record citations, case references, or arguments would have had any marginal effect on their previous decision.’ ” Id. (quoting Bieghler v. State, 690 N.E.2d 188, 195 (Ind. 1997)).

[47] Alford argues that his appellate counsel was ineffective for failing to present his sentencing argument well. More specifically, he points to our decision on direct appeal wherein we stated that

Alford's argument does not comment specifically upon the nature of his offense or his character. Instead, Alford argues that the sentence of forty-five years “is, effectively, a death sentence” because Alford was fifty-two years old when sentenced and “in extraordinarily poor health[.]” Br. of Appellant at 17.

Alford, No. 18A-CR-1152, *4.

[48] Alford's evidence during sentencing included discussion of his medical history and protestations about being convicted, his brother's testimony that he was a good person, and the State's evidence of his criminal history. He argued during the post-conviction hearing that he had completed some community service, but that information did not appear in the trial record, and as such, was unavailable to appellate counsel.

[49] Alford's appellate counsel stated that he reviewed the entire record, including the pre-sentence investigation report, and talked with trial counsel. He realized he did not have much information about Alford's background and history. And what was included in the record did not strongly support a sentence reduction. Alford repeatedly molested S.M. in his mother's home which also served as a daycare. He has not offered us a different argument that could have been made as to either his character or his offense. We agree with the post-conviction court that appellate counsel is not ineffective for failing to advance arguments that enjoy little to no factual support in the record.

[50] Further, Alford has not shown a reasonable probability of a different outcome. This Court reviewed both the nature of his offense and his character when reviewing the sentencing argument on direct appeal. In sum, no better argument could be made because revision under Appellate Rule 7(B) requires compelling evidence in the defendant's favor. See Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015) (“Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character)). The post-conviction court did not err by concluding that appellate counsel did not render ineffective assistance of counsel.

Conclusion

[51] In light of the foregoing, we conclude that the post-conviction court did not err by finding that Alford failed to establish ineffective assistance of trial or appellate counsel. Thus, we affirm.

[52] Affirmed.

FOOTNOTES

1.   Alford advanced an argument about trial counsel's failure to investigate a key witness in his petition for post-conviction relief. The post-conviction court denied relief on that ground in its order denying post-conviction relief. Although, Alford lists this alleged deficiency in his opening brief on appeal, Petitioner's Br. p. 3, he makes no substantive argument about the same in his brief. Consequently, we decline to address it.

Baker, Senior Judge.

Altice, C.J., and Felix, J., concur.