GRIMES v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Jessie Grimes appeals pro se from the post-conviction court's order denying his petition for post-conviction relief (PCR). We affirm.

Facts and Procedural History

[2] The facts of Grimes’ crimes were set forth in the opinion of another panel of this Court on direct appeal as follows:

Grimes is the father of [S].G., D.G., and J.G., and in 2015, the children lived with Grimes and his girlfriend, Ashleigh Keck (“Keck”). In August 2015, S.G. was fourteen and started the seventh grade, and her sister D.G. turned ten in October 2015.

In the summer or fall of 2015, Grimes showed a pornographic movie to S.G. He asked S.G. questions about the sexual acts depicted in the movie and whether she knew how to perform them.

Keck moved out of Grimes's home in November 2015. Shortly thereafter, Grimes showed a video to ten-year-old D.G. showing a male and female touching each other under their clothes. D.G. knew the video was inappropriate and tried not to watch it. Grimes instructed D.G. not to tell anyone about the video.

Also, in November 2015, Grimes punished S.G. by making her touch his penis. Grimes established a Facebook account under a fake name and sent S.G. pictures of his penis. S.G. also met a girl on Facebook who refused to video chat with her, but told S.G. that she was having sex with her father. The girl encouraged S.G. to have sex with Grimes and sent S.G. bible verses that the girl claimed gave daughters permission to have sexual intercourse with their fathers. In this same month, Grimes also took S.G. to purchase birth control.

At the end of November 2015, Grimes began to have sexual intercourse with S.G. S.G. was later able to describe more than eighteen separate incidents of sexual intercourse between herself and Grimes. They also performed oral sex on each other. In addition, Grimes had unprotected sex with S.G. when she remembered to take her birth control. Grimes told S.G. that he could go to jail if anyone knew that they had sexual intercourse and to keep it a secret between them. On one occasion, Grimes also recorded himself having sex with S.G. because Grimes wanted S.G. to “see how [she] was like porn.” During this time, Grimes also purchased a vibrator for S.G.

On February 5, 2016, S.G. told a school official that she was having sexual intercourse with Grimes. S.G. and her siblings were removed from Grimes's home and placed with their paternal grandmother. Grimes was arrested a few days later and charged with twenty counts of Level 4 felony incest, twenty counts of Level [4] felony sexual misconduct with a minor, and two counts of Level 6 felony dissemination of matter harmful to minors.

While he was in jail awaiting trial, Grimes asked his former girlfriend Keck to access S.G.’s Facebook account and send a group message to S.G.’s friends. Keck did not know how to send a group message, and Grimes instructed her to ask her thirteen-year-old son. When Keck finally agreed to send the message, Grimes gave Keck S.G.’s username, password, dictated the message and told Keck what time to send it. Keck sent the following message from S.G.’s Facebook account to S.G.’s friend from church, Grimes's stepsister, and S.G.’s former boyfriend: [“]Everything is working. They are believing it all. ․ My grandma is still not [believing] me but when they find the stuff I planted. My dad is [staying] in jail for a long time. ․ [”] Grimes's stepsister, a recipient of the message, disclosed it to an attorney involved in the criminal proceeding.

Thereafter, on April 11, 2016, the State charged Grimes with Level 6 felony obstruction of justice.

Grimes v. State, 84 N.E.3d 635, 638-39 (Ind. Ct. App. 2017), trans. denied (internal citations omitted).

[3] A jury trial was held in June 2016. During the trial, the court granted the State's motion to dismiss two counts of incest and two counts of sexual misconduct with a minor, and Grimes was found guilty of the remaining charges. At a sentencing hearing in August 2016, the court entered judgments of conviction on the guilty verdicts and vacated the convictions for sexual misconduct with a minor. Grimes was ordered to serve an aggregate sentence on his remaining convictions of 111 years in the Indiana Department of Correction.

[4] On direct appeal, Grimes raised several issues, including, as pertinent here, whether the trial court erred in denying his motions to (1) dismiss or provide a more definite statement of the charges and (2) sever the obstruction of justice charge from the other charges. Grimes’ appellate counsel conceded that the first issue was reviewable for fundamental error, rather than for an abuse of discretion, because trial counsel had not filed the motion to dismiss before the deadline imposed by Indiana Code section 35-34-1-4(b).¹ The panel agreed, reasoning:

Failure to timely challenge an allegedly defective charging information results in waiver unless fundamental error has occurred. Fundamental error is an extremely narrow exception to the waiver rule, and the defendant faces the heavy burden of showing that the alleged error is so prejudicial to the defendant's rights as to make a fair trial impossible.

* * *

However, Grimes does not argue that the State's failure to include specific facts to differentiate each of the twenty counts of incest left him unable to prepare his defense. At trial, Grimes claimed that he did not engage in sexual intercourse or other sexual conduct with S.G. and she had fabricated the allegations. And Grimes does not claim that he was misled because the State did not allege specific facts for each incest count. The charging information sufficiently informed Grimes that he was charged with committing twenty separate acts of incest by engaging in sexual intercourse or other sexual conduct with his daughter, S.G., between the dates of August 1, 2015 and February 1, 2016. For all of these reasons, Grimes has not established that the trial court committed fundamental error when it denied his motion to dismiss the charging information.

Grimes, 84 N.E.3d at 640-41 (internal citations omitted).

[5] As to the second issue, the panel found that Grimes had waived appellate review of the motion to sever because his counsel failed to renew the motion at trial. Id. at 641. However, the panel further reasoned that “[w]aiver notwithstanding, the trial court acted within its discretion when it denied [the] motion to sever.” Id. The panel accordingly affirmed Grimes’ convictions. Id. at 646.

[6] In November 2018, Grimes filed a pro se PCR petition alleging that his trial and appellate counsel had provided ineffective assistance. Specifically, he alleged that trial counsel had been ineffective because she had failed to:

• Timely file the motion to dismiss.

• Renew the motion to sever at trial, which resulted in “waiv[er] [of] the right to severance.” Appellant's Appendix Vol. 2 at 23.

• “[M]ove for the judge to enforce [the] order for separation of witnesses agreed to in chambers prior to trial[.]” Id.

• “[P]roperly challenge the enormous amount [sic] of charges piled on in this case[.]” Id. at 24.

• Object when the State offered portions of recorded phone calls Grimes had made from jail while awaiting trial, or to move to “play the full versions” of the calls under the doctrine of completeness. Id. at 27.

• “[O]bject[ ] and mov[e] for a mistrial” on the grounds that S.G. was supposedly “being coached by spectators sitting behind the prosecutor during” her testimony at trial. Id. at 28.

Grimes further alleged that appellate counsel had been ineffective because he:

• “[F]ailed to argue that the State's failure to include specific facts [in the charging information] to differentiate each of the twenty counts of incest left [him] unable to prepare his defense.” Id. at 29.

• “[S]hould have argued” that the State's filing of dozens of “charges ․ all stemming from the same alleged acts against the same people [was] an attempt to intimidate [him] into a guilty plea by piling on charges.” Id.

• Did not raise “the judge's failure to enforce [the] order for separation of witnesses[.]” Id. at 31.

• Did not argue that S.G. had been “coached by spectators ․ during trial.” Id. at 33.

[7] In December 2018, the State filed a motion for summary disposition arguing that Grimes’ “claims as to ineffective trial and appellate counsel [were] without merit[,] ․ there [were] no genuine issues of a material fact or facts[,] [and] [t]he State ․ [was] entitled to judgment as a matter of law[.]” Id. at 46. In February 2019, before the post-conviction court ruled on the motion for summary disposition, the State Public Defender's Office entered an appearance on Grimes’ behalf. At the request of Grimes’ attorney, the court entered an order “staying all proceedings in this case until such a time as [Grimes’] counsel notifie[d] the Court of his ability to proceed.” Id. at 54.

[8] In June 2020, the public defender's office filed a notice withdrawing its appearance and certifying that an “appropriate investigation ha[d] been conducted, including a review of all pertinent transcripts[,] and that [Grimes] ha[d] been consulted regarding the grounds raised in [his] petition pursuant to” Indiana Post-Conviction Rule 1(9)(c).² Id. at 55. Thereafter, the post-conviction court did not immediately lift the stay and only did so in May 2024 after Grimes submitted several pro se filings, including a letter to the court asking for a hearing. In the order lifting the stay, the court ruled that the “State's motion [for summary disposition] must be heard prior to any other proceedings[.]” Id. at 126. Approximately one month later, Grimes filed a response to the motion for summary disposition arguing he was entitled to an evidentiary hearing.

[9] Grimes appeared in person for a hearing in December 2024. At that hearing, a senior judge informed the parties that given the complexity of the case, he was “not comfortable hearing it” and that the matter would be reset after the regular judge returned from a leave of absence. PCR Transcript Vol. 2 at 5, 10. However, the senior judge permitted Grimes to conduct an off-the record, informal deposition of his appellate counsel, who had been subpoenaed to appear at the hearing.³

[10] After the regular judge returned, Grimes appeared for another hearing in March 2025. At the start of that hearing, the post-conviction court asked Grimes to present his argument against the State's motion for summary disposition, telling him, “I want you to address ․ why the Court should not grant this motion[.]” Id. at 31. Grimes then stated that his “attorneys ․ didn't do their job properly” and his “trial counsel[ ] ․ didn't raise the issues that should have been raised during trial and stuff.” Id. at 32. When the court pressed Grimes for specifics, he said his trial “attorney didn't raise up the issue” of “separation of witnesses” and alleged that at trial, certain witnesses were “trying to listen in on the conversation of other witnesses.” Id. at 33. The court then asked Grimes if he had any evidence to support this allegation:

THE COURT: Okay. Do you have anybody to testify to that fact?

MR. GRIMES: No, Your Honor.

THE COURT: Okay. So you are not going to bring anybody today to testify to that fact, correct?

MR. GRIMES: If I known [sic] I needed to, I would have --

THE COURT: No, sir. Sir, this has gone on since 2018. ․ In my absence, another judge was here and continued this matter again. And you claimed at that point ․ that you only had two witnesses to bring; is that correct?

MR. GRIMES: Yes.

THE COURT: All right. And those two witnesses are not present today. [Trial counsel] has not been subpoenaed because you have not been able to --

MR. GRIMES: Locate her.

THE COURT: ․ The other witness was here last time, and I do not see any order on the record ․ that ․ [appellate counsel] was ordered to appear here today at all. Okay? So is it your statement that that is it, and that is the only statement that you have today in regard to that, correct?

MR. GRIMES: If I known [sic] that I needed to subpoena him again, I would have.

* * *

THE COURT: ․ [D]o you have anything else to offer in regard to that separation of witnesses that you can testify to personally?

MR. GRIMES: No, Your Honor.

Id. at 33-34, 38

[11] The post-conviction court then asked Grimes and the State to speak on each reason Grimes had listed in the PCR petition for why he believed his trial and appellate counsel were ineffective. During that discussion, Grimes was generally unable to articulate with any cogency why his counsel had been ineffective. For example, when asked about his allegation that his trial counsel failed to timely file the motion to dismiss twenty days before the omnibus date, Grimes simply said, “Omnibus, I do not understand that word. ․ I don't know what omnibus means, and I don't know how to argue that.” Id. at 38. Similarly, when asked about his allegation that the State had “pil[ed] on charges” to pressure him “to plea out,” he conceded that the supposed pressure had been unsuccessful:

THE COURT: And you did not plead in this case, correct?

GRIMES: No, I did not.

THE COURT: It went to trial?

GRIMES: I pleaded not guilty.

Id. at 44.

[12] After hearing the parties’ arguments, the post-conviction court initially indicated that it would deny the State's motion for summary disposition. However, when the State asked it to clarify “what th[e] genuine issue of material fact [was,]” the court asked Grimes for his response. Id. at 61. Grimes replied, “Basically, finding of facts is [ ] like, months out.” Id. at 62. The court then clarified, “The issue I have ․ is I am trying to make sure that you understand what is going on. But if there is no genuine issue of material fact, I could rule positively on the motion for summary judgment.” Id. at 63. Grimes then conceded that he could not show a genuine issue of fact:

THE COURT: ․ So what issue of material fact are you saying [ ] is there for me not to rule on the State's motion for summary judgment? ․ [W]hat issue of material fact do you think that the Court needs to rule upon today?

MR. GRIMES: Nothing, Your Honor.

THE COURT: Nothing? ․ If that is the case and there is no issue of material fact, I will rule positively on [the] motion for summary judgment because there is no issue of material fact. Okay?

MR. GRIMES: Okay.

* * *

THE COURT: So th[ere] were [ ] eight items that you were referring to in your petition to revoke; is that correct?

MR. GRIMES: Yes, Your Honor.

* * *

THE COURT: All right. And they have been discussed today?

MR. GRIMES: Yes, sir.

THE COURT: And there is no issue of material fact going forward, correct?

MR. GRIMES: I would like to have a fact-finding, if I may, Your Honor.

THE COURT: Well, ․ if there is no issue of material fact, that will not be done. Okay? I will rule positively on the State's motion. You have not brought up any and you just said that there is none on the record, so I am ruling that the State's motion for summary judgment is granted. Okay?

MR. GRIMES: Okay.

Id. at 63-64.

[13] After the hearing, the post-conviction court entered its findings of fact, conclusions of law, and order denying Grimes’ PCR petition. Grimes now appeals.

Discussion and Decision

[14] As an initial matter, we address deficiencies in both Grimes’ and the State's arguments on appeal. Specifically, both parties have misstated the procedural posture of the case and, consequently, have asked us to apply the incorrect standard of review. Grimes’ brief makes no mention of the motion for summary disposition, let alone that the post-conviction court granted that motion from the bench after he conceded there was no “issue of material fact ․ that the Court need[ed] to rule upon[.]” Id. at 63. Because of this deficiency, together with Grimes’ failure to present any argument on appeal that there was a genuine issue of fact warranting an evidentiary hearing, Grimes has waived appellate review of his PCR petition. See infra Section 2.

[15] For its part, the State acknowledges that “the post-conviction court commented that it would grant summary judgment at the hearing[.]” Appellee's Br. at 18 n.3. Nonetheless, it contends that we should apply the deferential standard of review generally applied to the denial of PCR following an evidentiary hearing because the court's “findings discuss neither whether any material issues of fact existed, nor in what way the State was entitled to judgment as a matter of law[.]” Id. However, to the extent a court's written and oral orders conflict, we try to discern its intent. See, e.g., Walker v. State, 932 N.E.2d 733, 738 (Ind. Ct. App. 2010) (“When oral and written sentencing statements conflict, we examine them together to discern the intent of the sentencing court.”), reh'g denied. In fact, here, the State asks us to “look[ ] beyond how [the appealed] order ․ may be formally referred to and instead view[ ] [it] as to what is was functionally equivalent to.” Appellee's Br. at 18 n.3.

[16] While the post-conviction court did not specifically use the words “genuine issue of material fact” or set forth the standard applicable to motions for summary disposition, its written order was the functional equivalent to a grant of summary disposition. In its order, the court summarized the hearing as follows: “[Grimes] offered no evidence, called no witnesses, presented no affidavit (sworn or otherwise) and attempted to argue his reasoning as stated in his petition. The State stood on its prior Motion and gave a brief argument for its acceptance.” Appellant's App. Vol. 2 at 17. The court further made clear that it denied Grimes’ PCR petition after considering the motion for summary disposition, oral argument presented by the parties with respect to that motion, “and the presentation of evidence (or lack thereof)[.]” Id. at 18 (emphasis added). Based on the absence of evidence, the court concluded that “Grimes ha[d] not demonstrated that there was ineffective assistance of counsel[.]” Id. at 19. This reasoning is consistent with its oral grant of the State's motion for summary disposition and denial of Grimes’ request for further evidentiary hearing, so the resulting order was a grant of summary disposition.

[17] With this background, we turn to whether there was a genuine issue of fact requiring the denial of the State's motion for summary disposition.

1. Standard of Review

[18] The State moved for summary disposition of Grimes’ PCR petition pursuant to Indiana Post-Conviction Rule 1(4)(g). That rule provides that a post-conviction court may

grant a motion by either party for summary disposition of the petition when it appears from the pleadings, depositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The court may ask for oral argument on the legal issue raised. If an issue of material fact is raised, then the court shall hold an evidentiary hearing as soon as reasonably possible.4

When a court grants a motion for summary disposition pursuant to Rule 1(4)(g), “we review [that] decision as we would a motion for summary judgment.” Allen v. State, 791 N.E.2d 748, 753 (Ind. Ct. App. 2003), trans. denied. The summary judgment standard in the PCR context was set forth by our Supreme Court in State v. Daniels:

Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to prove each element of its claim by admissible evidence and to establish that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Once the movant has sustained this burden, the opponent must respond by setting forth specific facts showing a genuine issue for trial; the opponent may not simply rest on the allegations of the pleadings.

680 N.E.2d 829, 832 (Ind. 1997) (internal citation omitted). Where, as here, the court has entered findings and conclusions for purposes of summary judgment, they are not binding on the appellate court. Id. Instead, we “face[ ] the same issues that were before the [post-conviction] court and follow[ ] the same process.” Id. (quoting Ind. Dep't of State Revenue v. Caylor-Nickel Clinic, P.C., 587 N.E.2d 1311, 1313 (Ind. 1992)). We resolve any factual disputes and draw all reasonable inferences in the non-moving party's favor. Id.

2. Waiver

[19] Because Grimes conceded that there were no genuine issues of material fact warranting further evidentiary hearing, he has waived appellate review of the post-conviction court's grant of summary disposition. Generally, when the State moves for summary disposition, it has the initial burden to demonstrate the absence of a genuine issue of fact. Id. However, when a party concedes a fact or issue in open court, that concession operates as a judicial admission. See Stewart v. Alunday, 53 N.E.3d 562, 568 (Ind. Ct. App. 2016) (explaining that a judicial admission is a “voluntary and knowing concession[ ] of fact” and may be “made in open court”). When a party makes a judicial admission, the conceded fact or issue “may be ‘taken as true as against the party without further controversy or proof’ and [is] ‘conclusive as to that party[.]’ ” Id. at 569 (quoting Lutz v. Erie Ins. Exch., 848 N.E.2d 675, 678 (Ind. 2006)).

[20] Here, the post-conviction court asked Grimes, “what issue of material fact [he thought] the Court need[ed] to rule upon[.]” PCR Tr. Vol. 2 at 63. Grimes answered that question by saying, “Nothing, Your Honor.” Id. The court then made sure Grimes understood that if there was no genuine factual issue, it would not set the matter for further evidentiary hearing and would instead “rule positively on the State's motion.” Id. at 64. After the court clarified the consequences of Grimes’ answer, Grimes merely said, “Okay.” Id. Thus, even after the court explained that an evidentiary hearing would not be held if Grimes did not change his answer, he nonetheless stood by his concession that there was no factual issue for the court to resolve. That concession is therefore “conclusive[ ] upon” Grimes, and he cannot successfully argue on appeal that there was a genuine issue of fact. Stewart, 53 N.E.3d at 569 (quoting 9 Wigmore, Evidence § 2590 (Chadbourn rev. 1981)).

[21] Moreover, Grimes’ appellate brief makes no mention of the State's motion for summary disposition, nor has he presented any argument on appeal that the post-conviction court erred in granting that motion. Accordingly, even without Grimes’ judicial admission, he has waived appellate review by failing to present any argument on appeal regarding the motion for summary disposition. See Ind. Appellate Rule 46(A)(8)(a) (requiring an argument be “supported by cogent reasoning”); Martin v. Brown, 129 N.E.3d 283, 285 (Ind. Ct. App. 2019) (“Failure to present a cogent argument results in waiver of the issue on appeal.”); Miller v. Patel, 212 N.E.3d 639, 657 (Ind. 2023) (“We will not step in the shoes of the advocate and fashion arguments on his behalf[.]”).

* * *

[22] Waiver notwithstanding, for the reasons set forth below, there was no genuine issue of fact as to whether Grimes was entitled to PCR.

3. Ineffective Assistance of Trial Counsel

[23] We evaluate a defendant's ineffective-assistance-of-counsel claim under the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688 (1984), reh'g denied. Bobadilla v. State, 117 N.E.3d 1272, 1280 (Ind. 2019). Under that test, “[t]he defendant must 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. Here, even if we assume for the sake of argument that Grimes’ trial counsel committed some errors before and during the trial, Grimes has nonetheless failed to show prejudice because he did not present any evidence that “counsel's errors were so serious as to deprive [him] of a fair trial, meaning a trial whose result is reliable.” Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013).

[24] First, as to Grimes’ claim that his trial counsel's failure to timely file the motion to dismiss caused the Court of Appeals to analyze the issue for fundamental error rather than abuse of discretion, Grimes did not show any likelihood that the panel on direct appeal would have reached a different conclusion under the abuse of discretion standard. Grimes argues that the charges filed by the State failed to explain “the nature and elements of the offense charged” with the specificity required by Indiana Code section 35-34-1-2(a)(4). While a criminal charge must state the facts of an alleged offense with enough specificity to enable the defendant to prepare his defense, “additional materials such as the probable cause affidavit supporting the charging instrument may be taken into account in assessing whether a defendant has been apprised of the charges against him.” State v. Laker, 939 N.E.2d 1111, 1113 (Ind. 2010), trans. denied. Here, Grimes had the benefit of a probable cause affidavit outlining the details of his alleged offenses and took a deposition of S.G., during which his counsel asked her about the incidents of sexual contact she claimed to have had with Grimes. Even if the charging information was not sufficiently specific, Grimes’ ability to conduct pre-trial discovery regarding the criminal charges adequately apprised him of the nature of the allegations against him.

[25] Second, Grimes’ allegation that the State's witnesses violated the separation of witnesses at trial was not only meritless but disingenuous. In his PCR petition, he asserted that during S.G.’s testimony, “the judge realized ․ that another witness who had yet to testify was [ ] trying to hear better what was being said.” Appellant's App. Vol. 2 at 23. However, at the PCR hearing Grimes admitted that it was his own mother, who testified in his defense, who had come into the courtroom to try to hear what S.G. was saying. He then did not contest the State's representation that “once it was clear that [Grimes’] mother was in the courtroom, she was asked to leave[,]” and she was the only witness who could have “possibly overhear[d] anything that was [said] in the courtroom[.]” PCR Tr. Vol. 2 at 59.

[26] Third, Grimes failed to present any evidence to support his position that he was prejudiced by trial counsel's failure to object to the admission of a recorded phone conversation he had with his girlfriend while awaiting trial. During that conversation, Grimes said that if his girlfriend had been with him the “whole time, none of this s*** would have gone on.” Trial Tr. Vol. 2 at 250. According to Grimes, “had his trial counsel objected to the redacted version of the call[,] ․ the State [would have] either withdraw[n] the evidence or play[ed] the entire phone call, which would have provided the context for Grime's [sic] statement[.]” Appellant's Br. at 21. However, at no point during the PCR proceedings did Grimes move to admit an unredacted copy of the phone call into evidence, meaning it was impossible for the post-conviction court to determine the “context” of Grimes’ statement. Because Grimes failed to prove what he said during the redacted portion of the call, we cannot determine whether the entire call, in context, would have rebutted the State's theory that he told his girlfriend “he would not have been having sex with S.G. had [his girlfriend] been available.” Appellant's Br. at 20-21.

[27] Finally, Grimes’ allegation that S.G. was being “coach[ed]” by individuals in the gallery at trial is not supported by the record. Id. at 22. The only evidence in the record regarding members of the audience “coaching” S.G. is the following instruction given by the trial court to those present in the courtroom during S.G.’s testimony:

THE COURT: ․ Before the jury does come back in as well, we have several people in the audience that are here. I know that you are here for support, but you can't make any auditory or visible yeses or no's or anything because it's up to her to testify. I've been watching you very close as we've gone through it; I think you've been very good in what you've been doing, and I know that she needs support and likes to have your support here, but you can't make any indication of what an answer should be or anything of that nature for her testimony. Okay. Thank you.

Trial Tr. Vol. 2 at 8 (emphasis added). Nothing in this instruction suggests that the trial court thought individuals in the courtroom were improperly signaling to S.G. how she should testify. On the contrary, the court made clear that it was watching the audience members closely and had not noticed any problematic behavior. The fact that the court instructed those present in the courtroom to continue their good behavior cuts against Grimes’ argument that the court's admonition “undermin[es] confidence in the outcome of the trial.” Appellant's Br. at 23.

[28] For these reasons, none of the supposed errors alleged by Grimes in his PCR petition supported his claim of ineffective assistance of trial counsel.⁵

4. Ineffective Assistance of Appellate Counsel

[29] On appeal, Grimes argues that his appellate counsel was ineffective for failing to adequately argue that the trial court's denial of his motion to dismiss constituted fundamental error because he “was not provided adequate notice of the charges against him[.]”⁶ Appellant's Br. at 25. We review claims of ineffective assistance of appellate counsel using “the same standard applied to ineffective assistance of trial counsel claims.” Harris v. State, 861 N.E.2d 1182, 1186 (Ind. 2007). That is, the “defendant must prove (1) counsel's performance [was] below the objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's failure to meet prevailing professional norms, the result would have been different.” Id. at 1186-87.

[30] As noted above in Section 3, Grimes presented no evidence he was prejudiced by the denial of his motion to dismiss. On the contrary, he was adequately informed of the nature of the charges against him through the probable cause affidavit and pre-trial discovery. Thus, any failure by appellate counsel to adequately argue that issue would not have changed the panel's opinion on direct appeal that the trial court did not “commit[ ] fundamental error when it denied [the] motion to dismiss the charging information.” Grimes, 84 N.E.3d at 641.

Conclusion

[31] For these reasons, the post-conviction court did not err in denying Grimes’ PCR petition, and we affirm.

[32] Affirmed.

FOOTNOTES

1.   Indiana Code section 35-34-1-4(b) requires that a defendant charged with felony offenses file a motion to dismiss for failure to state an offense with sufficient certainty no later than twenty days before the omnibus date. See also Ind. Code § 35-36-8-1 (requiring trial courts in felony cases to set an omnibus date “to establish a point in time from which various deadlines ․ are established”).

2.   Indiana Post-Conviction Rule 1(9)(c) provides that after the post-conviction court appoints counsel in a PCR proceeding,[c]ounsel shall confer with petitioner and ascertain all grounds for relief under [the PCR rules], amending the petition if necessary to include any grounds not included by petitioner in the original petition. In the event that counsel determines the proceeding is not meritorious or in the interests of justice, before or after an evidentiary hearing is held, counsel shall file with the court counsel's withdrawal of appearance, accompanied by counsel's certification that 1) the petitioner has been consulted regarding grounds for relief in his pro se petition and any other possible grounds and 2) appropriate investigation, including but not limited to review of the guilty plea or trial and sentencing records, has been conducted. ․

3.   Grimes also attempted to subpoena his trial counsel, but he had been unable to locate or communicate with her because she was listed as retired on the Indiana Roll of Attorneys and the parties did not have her current address or contact information.

4.   The State also moved for summary disposition under Indiana Post-Conviction Rule 1(4)(f), which permits the post-conviction court to summarily dispose of a PCR petition “[i]f the pleadings conclusively show th[e] petitioner is entitled to no relief[.]” However, here, the post-conviction court looked to matters outside of the pleadings, including arguments from the State and Grimes as to what transpired at trial and on direct appeal. Thus, the court necessarily analyzed the State's motion under Rule 1(4)(g), not 1(4)(f).

5.   While Grimes’ PCR petition raised alleged errors by trial counsel other than the four addressed above, he did not present any argument regarding those other alleged errors on appeal, so we do not address them. See App. R. 46(A)(8)(a) (requiring an argument be “supported by cogent reasoning”); see also Miller, 212 N.E.3d at 657 (explaining that under Appellate Rule 46, “[w]e will not step in the shoes of the advocate and fashion arguments on his behalf[.]”).

6.   Though Grimes raised several other supposed errors committed by appellate counsel in his PCR petition, his arguments on appeal focus on the allegation that appellate counsel did not properly argue that “the trial court committed fundamental error when it failed to sua sponte dismiss the information or instruct the State to amend the information and include a more definite statement for each of the charges.” Appellant's Br. at 29 (italics in original). Grimes has waived the other alleged errors by appellate counsel for our review. See supra note 5.Waiver notwithstanding, Grimes alleged his appellate counsel was deficient for failing to argue on direct appeal that (1) “trial counsel fail[ed] to object” to the supposed violations of the order for the separation of witnesses or (2) spectators were coaching S.G. during her testimony, issues that trial counsel had similarly failed to raise. Appellant's App. Vol. 2 at 31, 33. It is well-settled that when “claimed errors by trial counsel [do] not in themselves warrant relief, claims of ineffective assistance of appellate counsel for failure to raise the alleged trial counsel errors [ ] necessarily fail as well[.]” Lee v. State, 91 N.E.3d 978, 993 (Ind. Ct. App. 2017) (citing Allen v. State, 749 N.E.2d 1158, 1168-69 (Ind. 2001), reh'g denied, cert. denied), reh'g denied, trans. denied. Because Grimes failed to demonstrate that his trial counsel had been ineffective, his claim that appellate counsel was ineffective for failing to raise trial counsel's errors also fails.

DeBoer, Judge.

Bradford, J., and Weissmann, J., concur.