Colton Vibbert, Appellant-Petitioner v. State of Indiana Appellee-Respondent (2025)

MEMORANDUM DECISION

[1] Colton Vibbert, pro se, appeals following the denial of his petition for post-conviction relief. Vibbert raises two issues,¹ which we revise and restate as:

1. Whether the post-conviction court erred by ruling Vibbert did not receive ineffective assistance of trial counsel; and

2. Whether the post-conviction court erred by ruling Vibbert did not receive ineffective assistance of appellate counsel.

We affirm.

Facts and Procedural History

[2] We summarized the facts of Vibbert's offense in our opinion deciding his direct appeal:

Vibbert's girlfriend, Veronica Grear, owned a trailer located in Fort Wayne. On November 9, 2017, Fort Wayne Police Department detectives interviewed Grear and Vibbert regarding an ongoing homicide investigation. During the interview, Grear indicated that Vibbert occasionally stayed at her trailer and gave her written consent to a police search of the trailer to Detective Craig Gregory. See App. Vol. II p. 121.[2] Detective Jeff Marsee interviewed Vibbert, who admitted that he had stayed with Grear and left his vehicle at Grear's trailer the night before the interview.

Later that afternoon, Detective Alan Garriott searched the trailer, pursuant to Grear's consent to search.[3] In the kitchen, Detective Garriott observed a “clear food storage container” on a metal folding chair “in the approximate center of the kitchen floor.” Tr. Vol. II p. 106.

Inside the clear container, officers found baggies containing a powdery substance, scales, and a box of unused food storage bags. The baggies contained methamphetamine and inositol, a cutting agent.

On December 11, 2017, Detective Juan Carlos Gutierrez of the Vice and Narcotics Bureau arrested Vibbert for dealing in methamphetamine. Detective Gutierrez read Vibbert his Miranda[4] rights and conducted a recorded interview. Vibbert initially stated that the methamphetamine recovered from the trailer belonged to Grear; however, Vibbert “finally admitted that the [methamphetamine] belonged to him.” Id. at 135.

On December 14, 2017, the State charged Vibbert with dealing in methamphetamine, a Level 2 felony; and maintaining a common nuisance, a Level 6 felony. The State subsequently dismissed the latter charge. In a separate information, the State alleged that Vibbert was a habitual offender.

On May 17, 2018, Vibbert filed a motion to suppress evidence, in which he alleged that Grear did not freely and voluntarily give consent to the police search; and that Grear consented to a limited scope search seeking “guns, ammo, holsters, [ ] any bloody clothing[,]” and “evidence from the homicide.” Supp. Tr. pp. 6, 28. The trial court conducted a hearing on Vibbert's motion to suppress on May 31, 2018 and denied the motion on June 19, 201[8]. See App. Vol. III p. 39.

Vibbert v. State, No. 18A-CR-2122, 2019 WL 2440417 at *1 (Ind. Ct. App. June 12, 2019) (mem.).

[3] The trial court began Vibbert's jury trial on June 21, 2018. Vibbert has tattoos on his neck, scalp, and face, and during voir dire, Juror 51 stated: “I have an issue with people who have neck and on up tattoos.” (Tr. Vol. 2 at 85-86.) Juror 1 indicated she felt the same way, and Vibbert's counsel questioned the panel further:

Q. And would that be difficult for you to be fair and impartial?

JUROR 1: Probably.

Q. Okay. Thank you for your honesty. Is Mr. Vibbert's appearance—would that affect anybody else here today that would keep them from being fair and impartial?

A. (No response or indication from any potential juror)

(Id. at 86.) Vibbert's counsel then went on to say, “the State has to leave you firmly convinced, they have to prove each element of the crime.” (Id.) He also reminded the panel Vibbert was innocent until proven guilty and under no obligation to testify, and no member of the venire expressed misgivings related to either principle. In addition, all the members of the venire indicated they would follow the trial court's instructions. Vibbert's counsel did not seek to strike Juror 1 for cause,⁵ and she was seated on the jury. At the conclusion of Vibbert's trial, the jury returned a verdict finding Vibbert guilty of Level 2 felony dealing in methamphetamine, and Vibbert admitted he qualified for the habitual offender sentence enhancement. The trial court subsequently sentenced Vibbert to an aggregate term of fifty years and ordered him to serve that sentence consecutive to his sentences in other causes.

[4] Vibbert raised two issues on direct appeal: (1) whether the trial court erred by admitting evidence recovered during the search of Grear's trailer, and (2) whether the trial court abused its discretion by failing to find Vibbert's history of mental illness to be a mitigating factor at sentencing. We held the trial court did not err on either point and affirmed Vibbert's conviction and sentence.

[5] On December 28, 2020, Vibbert filed a petition for post-conviction relief. He then filed an amended petition for post-conviction relief on May 17, 2024, that asserted ineffective assistance of both trial and appellate counsel. Regarding his trial counsel, Vibbert asserted counsel was ineffective for failing “to object to or move to suppress inadmissible statements made by Petitioner Vibbert on 11-9-17.” (PC App. Vol. 2 at 69.) He also alleged his trial counsel was ineffective for failing to investigate whether officers read Vibbert his Miranda rights prior to questioning him on November 9, 2017, and for not effectively challenging the State's use of a “perjured affidavit for probable cause” and “perjured testimony” at trial. (Id. at 70.) Lastly, Vibbert asserted his trial counsel provided ineffective assistance by not seeking to have Juror 1 removed from the venire for cause. Vibbert claimed his appellate counsel failed “to raise Petitioner Vibbert's arrest on 11-09-17 was unlawful and without the benefit of probable cause or a warrant.” (Id.)

[6] The post-conviction court ordered Vibbert to submit his evidence by affidavit. On June 14, 2024, Vibbert submitted his case by affidavit. Vibbert's submission included an affidavit/memorandum reciting his post-conviction arguments and documents from the record of his criminal trial, including a motion to compel discovery his attorney filed in the criminal trial seeking information related to how Vibbert and Grear came to the police department on November 9, 2017, which the trial court in Vibbert's criminal trial denied. On July 17, 2024, the State filed its response to Vibbert's submission. In its response, the State asserted most of Vibbert's allegations relied solely on his “uncorroborated, self-serving statements” and that he “gives no hint as to why he supposes that the outcome of the proceeding would have been different” if the statements from Vibbert's November 9, 2017, interview had been suppressed. (Id. at 123-24.) The State further observed “Vibbert's arguments on the issues of false statements and perjury ․ are not entirely clear,” (id. at 126), but the State argued any inconsistencies between the probable cause affidavit and officer testimony were not material. In addition, the State asserted any challenge to Juror 1 for cause would have been unsuccessful.

[7] On September 30, 2024, the post-conviction court issued an order with findings of fact and conclusions of law denying Vibbert's petition. The post-conviction court concluded:

3. Nothing but Petitioner's uncorroborated, self-serving statements has any tendency to establish that he was arrested without probable cause or a warrant, or was subjected to a five-hour interrogation (while in custody) with no Miranda warnings on November 9, 2017. A convicted defendant's uncorroborated, self-serving statements do not suffice to support a claim for post-conviction relief. McChristion v. State, 511 N.E.2d 297, 301 (Ind. 1987). Likewise, Petitioner's uncorroborated, self-serving statements that trial counsel could have ascertained that Petitioner was in custody and did not receive Miranda warnings on November 9, 2017, do not suffice to establish that trial counsel actually could have done so. Petitioner has entirely failed to show that counsel's performance was deficient in failing to move to suppress Petitioner's statements made on November 9, 2017, on the ground that those statements were obtained from custodial interrogation with no Miranda warnings.

4. Furthermore, Petitioner gives no hint as to why he supposes that the outcome of the proceeding would have been different even if the statements in question had been suppressed. Even without Petitioner's statements, the police would have had the written consent to search given by Veronica Grear, which enabled them to discover Petitioner's methamphetamine and related items. The Prosecutor's arguments at trial made no reference to Petitioner's statements made on November 9, 2017. There is no indication at all that the methamphetamine and related items would have been suppressed, nor that the outcome at trial would have been different, if Petitioner's statements made on November 9, 2017, had not been admitted into evidence. As Petitioner's defense did not suffer prejudice from counsel's claimed error in failing to move to suppress Petitioner's statements, he is not entitled to post-conviction relief on that basis. [Bouye v. State, 699 N.E.2d 620, 623 (Ind. 1998)].

5. Petitioner also suggests with no explanation and no statement of facts in support, that his statement of December 11, 2017, to Detective Gutierrez “might also have been excludable under the ‘fruit of the poisonous tree’ doctrine.” Petitioner's Affidavit, at 1-2․ Petitioner presents no evidence casting any doubts upon Detective Gutierrez's statement that he read Petitioner his Miranda rights; he does not assert that he was illegally arrested on December 11, 2017, and the date on which he does assert that he was illegally arrested (November 9, 2017) was more than one (1) month before the interview with Detective Gutierrez; he says nothing about the presence or absence of intervening circumstances; and he presents no evidence that Detective Gutierrez engaged in any misconduct at all. He has entirely failed to show that his statements made on December 11, 2017, could have been suppressed under the “fruit of the poisonous tree” doctrine.

* * * * *

7. Petitioner complains that Detective Marsee committed perjury because he made inconsistent statements under oath about where Petitioner lived or was an overnight guest. He is mistaken because any inconsistency between those statements was not “material.”

* * * * *

9. Petitioner assumes that Juror 1's response to the question whether it would be difficult for her to be impartial ․ sufficed to establish that she was biased against him, and that [trial counsel] therefore was ineffective in failing to challenge her for cause. He cites numerous decisions, but presents no language from those decisions tending to establish that a juror's belief that it would probably be difficult for her to be impartial is equivalent to actual bias, and the State has found no such language in any of those decisions. Federal authority establishes that “a juror's express doubt as to her own impartiality on voir dire does not necessarily entail a finding of actual bias.” Hughes v. United States, 258 F.3d 453, 458 (6th Cir. 2001)․ A fortiori, when the juror's response embodies more than one level of doubt—as when she says it would “probably” be “difficult” for her to be impartial—the juror's response does not suffice to establish actual bias.

10. Counsel cannot be found ineffective for failing to raise an issue when no existing authority could have been cited in support․ Petitioner has cited no existing authority that would have established actual bias on the part of Juror 1, and existing federal authority was to the contrary. [Trial counsel] therefore cannot be found ineffective for failing to challenge Juror 1 for cause on the basis of actual bias.

11. Petitioner asserts that trial counsel was ineffective in failing to obtain evidence regarding his alleged arrest on November 9, 2017. A defendant cannot show that failure to obtain or present evidence amounted to ineffective assistance without showing what the evidence would have been and how it would have affected the outcome of the proceeding․ Petitioner has not presented the evidence that he says trial counsel should have obtained. He also has not shown that the outcome of the proceeding would have been affected even if it had been shown that he actually was shackled to the floor for five (5) hours and interrogated with no Miranda warnings. He has entirely failed to show that he is entitled to post-conviction relief on this basis.

12. Petitioner asserts that [Appellate Counsel] was ineffective in failing to allege that Petitioner was illegally arrested on November 9, 2017. Petitioner has not even shown that he was arrested on that date, much less that he was illegally arrested, and still less that his allegedly illegal arrest had any effect on the outcome of the proceeding․ [Appellate Counsel] cannot be found ineffective for failing to raise a meritless claim that Petitioner was illegally arrested. [Vaughn v. State, 559 N.E.2d 610, 615 (Ind. 1990).]

13. Petitioner purports to raise free-standing claims that the Court abused its discretion. Claims of error (even fundamental error) that were not previously litigated, but were available on direct appeal, cannot be raised in free-standing form on post-conviction review; such issues can be raised only in connection with a claim of ineffective assistance of counsel․ As Petitioner's claims of abuse of discretion were available on direct appeal, they cannot be raised in free-standing form in this post-conviction proceeding.

14. The Petitioner has failed to prove his claim on the merits by a preponderance of the evidence.

15. The Petition for Post-Conviction Relief is hereby denied.

(Id. at 160-66) (citations to the record omitted).

Discussion and Decision

[8] Vibbert appeals the denial of his petition for post-conviction relief. In the post-conviction court, Vibbert bore the burden of proving his claims by a preponderance of the evidence. See Ind. Post-Conviction Rule 1(5) (“The petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence.”). The post-conviction court ruled against Vibbert, and therefore, he “appeals from a negative judgment and must establish on appeal the evidence, as a whole, leads unmistakably and unerringly to a conclusion contrary to that reached by the post-conviction court.” Gillespie v. State, 244 N.E.3d 423, 433 (Ind. Ct. App. 2024).

1. Ineffective Assistance of Trial Counsel

[9] Vibbert argues he received ineffective assistance of trial counsel. The Sixth Amendment to the United States Constitution guarantees a criminal defendant “the assistance of counsel for his defense.” The actualization of this right “requires counsel's assistance be effective.” Warren v. State, 146 N.E.3d 972, 977 (Ind. Ct. App. 2020), trans. denied, cert. denied, 141 S. Ct. 858 (2020). “There is a strong presumption that trial counsel provided effective representation, and a petitioner must put forth strong evidence to rebut that presumption.” Id. “Isolated poor strategy, inexperience, or bad tactics does not necessarily constitute ineffective assistance.” McCullough v. State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012) (internal citation omitted), trans. denied. Rather, we review a petitioner's claim of ineffective assistance by applying the two-part test articulated in Strickland v. Washington, 104 S. Ct. 2052 (1984). Bobadilla v. State, 117 N.E.3d 1272, 1280 (Ind. 2019). That test requires the petitioner to “prove: (1) counsel rendered deficient performance, meaning counsel's representation fell below an objective standard of reasonableness as gauged by prevailing professional norms; and (2) counsel's deficient performance prejudiced the defendant, i.e., but for counsel's errors the result of the proceeding would have been different.” Id. We assess trial counsel's performance “based on facts known at the time and not through hindsight.” Cole v. State, 61 N.E.3d 384, 387 (Ind. Ct. App. 2016), trans. denied.

[10] Initially, Vibbert asserts his trial counsel was ineffective for failing to seek suppression of statements he made to police during his interview on November 9, 2017. However, Vibbert's trial counsel did file a motion to suppress the statements Vibbert and Grear made on November 9, 2017, and the evidence the police obtained during the subsequent search of Grear's trailer. The trial court denied that motion but allowed Vibbert to enter a continuing objection to admission of the challenged evidence at trial.⁶ Vibbert also asserts his trial counsel should have sought to suppress his statements during the November 9, 2017, interview on the basis that Vibbert did not receive Miranda warnings before the interview. Yet, Detective Marsee averred in the probable cause affidavit that he “conducted a Mirandized interview” with Vibbert on November 9, 2017. (PC App. Vol. 2 at 111.) Consequently, any objection on the basis that he did not receive Miranda warnings would not have been successful, and a lawyer is not ineffective for failing to make a meritless objection. See Pruitt v. State, 903 N.E.2d 899, 928 (Ind. 2009) (“It is well established that in order to prevail on a claim of ineffective assistance due to the failure to object, a petitioner for post-conviction relief must show an objection would have been sustained if made.”) (internal citation omitted). While Vibbert also asserts his counsel was ineffective for not adequately investigating whether he was given Miranda warnings prior to the interview, Vibbert presented no evidence to the post-conviction court of what evidence a more thorough investigation into the issue would have uncovered. See McKnight v. State, 1 N.E.3d 193, 201 (Ind. Ct. App. 2013) (“establishing failure to investigate as a ground for ineffective assistance of counsel requires going beyond the trial record to show what investigation, if undertaken, would have produced”). Thus, Vibbert's trial counsel was not ineffective in his investigation and advocacy related to the November 9, 2017, interview.

[11] Next, Vibbert argues a perceived inconsistency in Detective Marsee's testimony constituted perjury, and he contends his attorney was ineffective for not adequately pursuing the matter. Vibbert notes that Detective Marsee averred in the probable cause affidavit that during the November 9, 2017, interview, Vibbert “admitted that he was living with Grear at her trailer,” (PC App. Vol. 2 at 111), but in Detective Marsee's testimony during the suppression hearing, Detective Marsee testified Vibbert said in the interview that he lived with a relative and only stayed as an overnight guest in Grear's trailer. However, to whatever extent Detective Marsee's testimony was inconsistent, the discrepancy was not material. See Ind. Code § 35-44.1-2-1(a) (requiring false statement to be “material” to constitute perjury). Moreover, Vibbert fails to identify any evidence that could have been suppressed because the primary physical evidence used against Vibbert derived from the consensual search of Grear's trailer that occurred approximately one month before Detective Marsee submitted the probable cause affidavit. In addition, “the nature and extent of cross-examination is a matter of strategy delegated to trial counsel.” Robles v. State, 612 N.E.2d 196, 198 (Ind. Ct. App. 1993). A deliberate, strategic choice by counsel related to the questioning of a witness does not constitute ineffective assistance even if the choice proves detrimental or is the subject of criticism. Id. Vibbert's trial counsel questioned Detective Marsee at trial:

Q. You testified here today that you were aware that Colton lived at the trailer; correct?

A. I was aware that he was staying there, yes.

Q. Do you remember giving previous sworn testimony that he did not live at the trailer?

A. Yes.

(Tr. Vol. 2 at 101.) While Vibbert second guesses his trial counsel's strategy to not explore the matter further, Vibbert's trial counsel was not ineffective for choosing not to do so. See, e.g., Blanchard v. State, 802 N.E.2d 14, 37 (Ind. Ct. App. 2004) (holding trial counsel's strategic decision not to ask preliminary questions regarding fingerprint examiner's qualifications did not constitute ineffective assistance).

[12] Finally, Vibbert asserts his trial counsel was ineffective for not challenging Juror 1 for cause. He contends that “[h]ad trial counsel challenged juror number one, that juror would have been removed.” (PC Appellant's Br. at 18.) However, in Oswalt v. State, our Indiana Supreme Court held the trial court did not abuse its discretion by not excluding a juror for cause when the juror initially said he “would not want a juror like himself adjudicating the case,” but later told the trial court he would follow the trial court's instructions, pay attention to the evidence, and decide the case solely on that evidence. 19 N.E.3d 241, 250 (Ind. 2014). The Court explained the subsequent questioning “rehabilitated” the perspective juror and “mere discomfort” with sitting as a juror in a particular case was not one of the enumerated grounds for removal for cause. Id. During Vibbert's criminal trial, Juror 1 answered “Probably” when asked if it would be difficult to be impartial based on Vibbert's tattoos, (Tr. Vol. 2 at 86), but she also indicated she would follow the trial court's instructions and recognized Vibbert's presumption of innocence. Thus, it was reasonable for Vibbert's trial counsel to conclude that Juror 1's responses to his subsequent questions rehabilitated Juror 1 and that, while she expressed discomfort with deciding a case involving a defendant with tattoos on his neck and head, her discomfort was not disqualifying.⁷

2. Ineffective Assistance of Appellate Counsel

[13] Vibbert also argues the post-conviction court erred by concluding that he did not receive ineffective assistance of appellate counsel. “The standard of review for a claim of ineffective assistance of appellate counsel is the same as for trial counsel in that the defendant must show appellate counsel was deficient in her performance and that the deficiency resulted in prejudice.” Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). “Ineffective assistance of appellate counsel claims generally fall into three basic categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well.” Id.

[14] Vibbert asserts his appellate counsel was ineffective for not raising two issues on direct appeal: (1) whether Vibbert's statements made during the November 9, 2017, were inadmissible, and (2) whether the trial court erred by denying his motion to compel discovery related to why police wanted to question him on that date. The identification of what issues to raise on appeal is one of the most important decisions appellate counsel makes, and we are highly deferential to counsel's strategic choices. Hamilton v. State, 233 N.E.3d 461, 482-83 (Ind. Ct. App. 2024), trans. denied. “To evaluate the performance prong when appellate counsel failed to raise an issue on appeal, we apply the following test: (1) whether the unraised issue is significant and obvious from the face of the record, and (2) whether the unraised issue is ‘clearly stronger’ than the raised issues.” Id. (quoting Reed, 856 N.E.2d at 1195). If the petitioner demonstrates deficient performance, we then look to “whether ‘the issues which ․ appellate counsel failed to raise, would have been clearly more likely to result in reversal or an order for a new trial[.]’ ” Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997) (quoting Gray v. Greer, 800 F. 2d 644, 647 (7th Cir. 1986)).

[15] Vibbert asserts he was illegally detained on November 9, 2017, and his appellate counsel should have argued the statements he made during the interview were inadmissible on that basis. However, Vibbert points to no evidence in the record of his direct appeal indicating he was illegally detained on November 9, 2017. Rather, the record from Vibbert's direct appeal indicates he waived his Miranda rights and chose to speak with the police in connection with an ongoing homicide investigation.

[16] Likewise, while Vibbert filed a motion to compel “any additional reports/video of how [Vibbert and Grear] came to be at the police department” on November 9, 2017, (App. Vol. 2 at 45), the trial court denied the motion after reviewing the requested material provided to the court by the State in camera. The trial court stated in its order denying the motion that “the Court now finds that the discovery requested by Defendant is not relevant and contains no exculpatory evidence regarding the consent to search given by Veronica Grear.” (Id. at 77.) Vibbert does not indicate how his appellate counsel should have argued that this conclusion was erroneous, and he presented no evidence to the post-conviction court indicating that if his appellate counsel would have petitioned this Court for in camera review of the material, we would have reached a different result from the trial court. Consequently, we hold the trial court did not err in concluding Vibbert's appellate counsel was not ineffective. See, e.g., Johnston v. State, 164 N.E.3d 817, 829 (Ind. Ct. App. 2021) (holding appellate counsel was not ineffective for choosing not to raise meritless arguments), trans. denied.

Conclusion

[17] Vibbert's trial counsel did not perform ineffectively in his investigation and advocacy related to the November 9, 2017, interview, his questioning of Detective Marsee, or his decision not to challenge Juror 1 for cause. In addition, Vibbert has not demonstrated that his appellate counsel was ineffective. Therefore, we affirm the post-conviction court.

[18] Affirmed.

FOOTNOTES

1.   Vibbert includes two additional issues in his statement of the issues. He asserts the post-conviction court failed to rule on some of his motions, but he fails to identify what motions were not ruled upon. Therefore, the issue is waived. See, e.g., Drake v. Drake, 221 N.E.3d 734, 739 (Ind. Ct. App. 2023) (holding issue waived because of failure to present cogent argument). To the extent Vibbert asserts the trial court failed to rule on a motion to compel, we agree with the State that it was reasonable for the post-conviction court to believe a ruling on that motion was unnecessary given that Vibbert received the information he sought in the motion. In addition, Vibbert raises as an issue: “whether Vibbert is prevented from perfecting this appeal due to the clerk only producing the C.C.S.?” (Appellant's Br. at 7.) However, this issue is moot because Vibbert submitted to us appendices containing relevant portions of the proceedings before the post-conviction court and the record from his direct appeal.

2.   Citations generally refer to the record from Vibbert's direct appeal. Any citation to the record of Vibbert's post-conviction relief proceeding is preceded by “PC.”

3.   “Detective Garriott was unaware of any limitation(s) in the scope of his search of Grear's home. See Supp. Tr. p. 17.” Vibbert v. State, No. 18A-CR-2122, 2019 WL 2440417 at *1 n.1 (Ind. Ct. App. June 12, 2019) (mem.).

4.   Miranda v. Arizona, 86 S. Ct. 1602 (1966).

5.   Juror 51 was not seated on the jury.

6.   To the extent Vibbert seeks to a raise freestanding claims challenging the trial court's denial of motions during his criminal trial, such claims are not available in a petition seeking post-conviction relief. See Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009) (In a petition for post-conviction relief, “[t]he scope of the relief available is limited to ‘issues that were not known at the time of the original trial or that were not available on direct appeal.’ Issues available but not raised on direct appeal are waived, while issues litigated adversely to the defendant are res judicata.”) (quoting Allen v. State, 749 N.E.2d 1158, 1163 (Ind. 2001)).

7.   Our Indiana Supreme Court later distinguished Oswalt in Clark v. Mattar by holding that a prospective juror who “made repeated, emphatic statements during voir dire about his inability and unwillingness to assess and award noneconomic damages” should have been struck for cause. 148 N.E.3d 988, 993 (Ind. 2020). Clark, however, does not lead us to conclude Vibbert's trial counsel's decision not to challenge Juror 1 for cause constituted ineffective assistance. For one, Juror 1 did not exhibit the same sort of emphatic insistence that the juror in Clark expressed. In addition, our Indiana Supreme Court decided Clark two years after Vibbert's criminal trial, and it is well settled that an attorney is not ineffective for failing to anticipate or effectuate a change in the law. Trueblood v. State, 715 N.E.2d 1242, 1258 (Ind. 1999), cert. denied, 121 S. Ct. 143 (2000).

May, Judge.

Mathias, J., and Bradford, J., concur.