Russell G. Finnegan, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent. (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Russell G. Finnegan appeals from the post-conviction court's denial of his petition for post-conviction relief, raising several issues which we combine, renumber, and restate. The following issues are presented in this appeal:

I. Whether this Court's decision in Finnegan's direct appeal precludes him from revisiting his claims that he was denied his right to a fast and speedy trial;

II. Whether the post-conviction court abused its discretion when responding to records request issues at the hearing;

III. Whether the post-conviction court erred by denying Finnegan's request for a continuance;

IV. Whether the post-conviction court abused its discretion by denying Finnegan's request to subpoena the Pulaski County Clerk;

V. Whether it was erroneous to allow Finnegan's appellate counsel to testify virtually at the evidentiary hearing on the petition for post-conviction relief;

VI. Whether Finnegan received ineffective assistance of sentencing counsel; and

VII. Whether Finnegan received ineffective assistance of appellate counsel.

We affirm.

Facts and Procedural History

A. Background

[2] “On April 9, 2020, Finnegan, an inmate in the Pulaski County Jail, sent a letter to the Honorable Mary Welker, judge of the Pulaski Circuit Court.” Finnegan v. State, 201 N.E.3d 1186, 1189 (Ind. Ct. App. 2023), trans. denied. “At the time, Finnegan was the defendant in a criminal case pending before Judge Welker.” Id. “In his letter, Finnegan stated: ‘You put this letter in a court file and I will nail your ass for contempt. You are already going to get fucked up for criminal confinement.’ ” Id. (quoting State's Ex. 1). “Finnegan also wrote: ‘Send me your goddamn address so I can do business with you personally, appropriately.’ ” Id. “On April 21, 2020, Sergeant Frederick Rogers of the Pulaski Sheriff's Office met with Judge Welker at the Pulaski Circuit Court.” Finnegan, 201 N.E.3d at 1189-90. “Judge Welker showed Sergeant Rogers the letter Finnegan sent her.” Id. “Sergeant Rogers described Judge Welker's demeanor during this meeting as ‘intimidated and threatened’ and ‘very concerned[.]’ ” Id. (quoting Tr. Vol. II, p. 158). “Sergeant Rogers then forwarded a copy of the letter along with his report of his meeting with Judge Welker to the Pulaski County Prosecutor's Office.” Finnegan, 201 N.E.3d at 1190.

[3] “On May 29, 2020, the State charged Finnegan with Level 5 felony intimidation of a judicial officer.” Id. “On June 3, 2020, officers arrested Finnegan, and Finnegan posted bond.” Id. “As a condition of his bond, Finnegan was to have no contact with Judge Welker.” Id. “Several judges recused themselves, and a special judge was appointed to preside over the case.” Id. “Judge Kim Hall took the oath to preside as special judge on July 2, 2020.” Id. “Finnegan's initial hearing occurred on July 16, 2020.” Id. “Finnegan retained private counsel, but his attorney filed a motion to withdraw on July 29, 2020, after Finnegan ‘command[ed]’ him to withdraw.” Id. (quoting Appellant's App. Vol. II, p. 71). “Finnegan then filed a notice of his intent to proceed pro se, but at a status conference on November 23, 2020, Finnegan asked the court to appoint a public defender for him.” Id. “The trial court appointed Attorney Richard Ballard to act as Finnegan's attorney.” Id. “Finnegan subsequently hired Attorney Andrew Achey and Attorney Ballard withdrew.” Id.

B. Original Trial

[4] “On December 14, 2020, our Indiana Supreme Court issued an order prohibiting all in-person jury trials until March 1, 2021.” Id. (citing In the Matter of Admin. Rule 17 Emergency Relief for Ind. Trial Courts Relating to 2019 Novel Coronavirus (COVID-19), No. 20S-CB-123 (Ind. Dec. 14, 2020)). “The order also tolled the period from December 14, 2020, until March 1, 2021, for Criminal Rule 4 purposes.” Id. “On December 21, 2020, Finnegan's bond was revoked because he communicated additional threats against Judge Welker and other members of Pulaski County justice system.” Id.¹ “On December 29, 2020, Finnegan was arrested and taken into custody.” Finnegan, 201 N.E.3d at 1190.

[5] “On February 15, 2021, Finnegan filed a motion for competency evaluation.” Id. “On February 16, 2021, the trial court granted Finnegan's motion for a competency evaluation and stayed the proceedings in the instant case.” Id. “Finnegan filed a pro se fast and speedy trial demand on February 23, 2021.” Id. “On March 2, 2021, the trial court issued an order striking the documents Finnegan had filed pro se because Finnegan was represented by counsel when the documents were filed.” Id. “On March 4, 2021, Attorney Achey filed a motion to withdraw as Finnegan's attorney, and the trial court granted the motion.” Id. “The independent evaluators conducting the competency evaluation each concluded Finnegan was competent to stand trial, and the last of the two evaluations was filed on April 21, 2021.” Id. “The trial court found Finnegan competent to stand trial on April 28, 2021.” Id. (footnote omitted).

[6] “On June 4, 2021, Finnegan filed a ‘Motion for Discharge Pursuant to Criminal Rule 4(C) and Demand for Immediate Release,’ (App. Vol. III at 30), which the trial court subsequently denied.” Id. at 1190-91. “On June 17, 2021, Finnegan filed a ‘Demand for Fast and Speedy Trial by Jury CR4(B).’ ” Id. at 1191. “On June 28, 2021, Finnegan filed a notice stating: ‘I have been held six months without a trial date being set ․ Help, Help, Help, somebody please prosecute me.’ ” Id. (quoting Appellant's App. Vol. III, p. 104). “On July 2, 2021, Finnegan filed a demand for immediate release pursuant to Criminal Rule 4(A).” Finnegan, 201 N.E.3d at 1191. “On August 3, 2021, Finnegan filed another motion for a fast and speedy trial.” Id. “On August 19, 2021, the trial court appointed Attorney Paul Stanko to represent Finnegan.” Id. “However, even after Attorney Stanko was appointed to represent him, Finnegan continued to file documents pro se.” Id. “Many of Finnegan's pro se filings included gratuitous profanity and insults.” Id. “Finnegan also continued to send letters to Judge Welker and her court staff during the summer of 2021.” Id. “In one of the letters, Finnegan wrote to Judge Welker: ‘As soon as I get out I am walking across the street with my handcuffs and cuffing your dumb bitch ass up[.]’ ” Id. (quoting State's Ex. 5). “In another letter, Finnegan described a necrophiliac fantasy involving Judge Welker's corpse.” Id.

[7] “On September 28, 2021, the trial court entered an abusive pro se litigant order.” Id. “The order noted: ‘Once counsel is appointed or hired a defendant speaks to the Court through counsel.’ ” Id. (quoting Appellant's App. Vol. III, p. 158). “The order also stated the trial court would not review any pro se filings from Finnegan if Finnegan was represented by counsel and placed restrictions on Finnegan's filings if he chose to proceed as a self-represented litigant.” Finnegan, 201 N.E.3d at 1191.

[8] “On September 29, 2021, Attorney Stanko filed a motion to withdraw his appearance because Finnegan invoked his right to self-representation, and the trial court granted Attorney Stanko's motion to withdraw.” Id. On October 18, 2021, Finnegan filed a “Motion for Discharge” and a “Demand for Immediate Release pursuant to Criminal Rule 4(A) and Covid-19 Outbreak in Pulaski Co. Jail.” Id. (quoting Appellant's App. Vol. III, pp. 168-175). “On October 19, 2021, the trial court struck Finnegan's motions because Finnegan failed to comply with the terms of the trial court's September 28, 2021, order.” Finnegan, 201 N.E.3d at 1191. “Finnegan then filed another demand for immediate release and motion for discharge on October 22, 2021.” Id. “On November 5, 2021, Finnegan filed a ‘Demand for Fast and Speedy Trial by Jury C.R. 4(B).’ ” Id. (quoting Appellant's App. Vol. III, p. 190). “On November 22, 2021, the trial court issued an order granting Finnegan's motion for a speedy trial.” Finnegan, 201 N.E.3d at 1191. “The trial court noted that court congestion prevented it from holding a trial within seventy days, but the trial court scheduled Finnegan's trial to begin on February 2, 2022.” Id.

[9] “On December 28, 2021, the trial court issued an order directing the State to file a report ‘regarding whether the Defendant should remain incarcerated or be released from incarceration.’ ” Id. (quoting Appellant's App. Vol. III, p. 204). “The State filed its report on January 7, 2022.” Finnegan, 201 N.E.3d at 1191. “The State detailed the chronology of the case and argued that the delays that occurred as the result of the need to appoint a special judge and to conduct a competency evaluation tolled the Criminal Rule 4(C) period.” Id. “On January 24, 2022, the trial court issued an order releasing Finnegan on his own recognizance in the instant case, but Finnegan remained in the Pulaski County Jail because he was being held on other matters.” Id. at 1191-92. “On January 26, 2022, the trial court entered an order continuing Finnegan's jury trial due to a public health emergency.” Id. at 1192.

[10] “On March 8, 2022, the trial court held Finnegan's jury trial.” Id. “Finnegan proceeded pro se, but the trial court reappointed Attorney Ballard to act as standby counsel.” Id. “Before voir dire, Finnegan asserted his right to a speedy trial had been violated, and he objected to the trial court proceeding with trial.” Id. “The trial court overruled Finnegan's objection and the trial proceeded.” Id. “During trial, the State moved to amend the charging information in order to expand the time period over which it alleged Finnegan committed the crime of intimidation to include the summer of 2021.” Id. “Finnegan did not object to the State's motion, and the trial court granted the motion.” Id. “The jury returned a guilty verdict[.]” Id.

C. Sentencing

[11] Attorney Ballard represented Finnegan at his sentencing hearing. Counsel, with Finnegan's assistance, identified two alleged errors in the presentence investigation report. And Ballard presented two witnesses on Finnegan's behalf: Rob Shrimplin and Dan Shrimplin. Each testified that they knew Finnegan from work and that they had never known Finnegan to “be violent” or “hurt anyone.” Ex. Vol. IV, pp. 66, 68 (Petr's Ex. 3). Ballard argued that the court should find the mitigating factors that Finnegan had a minor criminal history, his conduct was verbal, and that Finnegan never physically harmed anyone. Id. at 70. Ballard recommended that the court impose a three-year sentence with “some form of probation.” Id.

[12] Finnegan spoke on his own behalf at the hearing. He asked the court to consider the following proposed mitigating circumstances: that the offense he committed “caused no harm to personal property;” that the offense was “a result of circumstances unlikely to recur;” that Judge Welker induced and facilitated the crime by “unlawfully imprisoning” him; that there was substantial grounds tending to excuse the offense because Judge Welker falsified court records in the underlying proceeding; that his minor criminal history documented his history of being a law-abiding citizen; and that further imprisonment would cause undue hardship to him and his son. Ex. Vol. 4, pp. 70-71 (Pet's Ex. 3).

[13] The court found as an aggravating circumstance that Finnegan had “repeatedly” violated a protective order put in place to protect the victim, that he recently violated the conditions of his pretrial release, and that his character and attitude indicated that he was likely to reoffend. Id. at pp. 71-72. The court found Finnegan's lack of criminal history in mitigation. Id. at 72. However, the court determined that Finnegan was the “worst of the worst” and ordered him to serve a fully executed six-year sentence in the Department of Correction (DOC). Id. at 73.

D. Direct Appeal

[14] Finnegan directly appealed his conviction and sentence. His counsel, Attorney Manning, raised two issues on appeal: whether the trial court erred by denying Finnegan's motions for discharge pursuant to Criminal Rule 4, and whether the State violated Finnegan's right to a speedy trial, guaranteed by both the Indiana Constitution and the United States Constitution.

[15] A panel of this Court affirmed Finnegan's conviction. We held that the trial court did not err when it denied Finnegan's motions for discharge under Criminal Rule 4. We held that Finnegan's first speedy trial request, filed pro se on February 23, 2021, was procedurally improper because Finnegan, who was represented at the time, filed it on his own behalf. 201 N.E.3d at 1192. He then filed several motions for a fast and speedy trial, with the final motion for a speedy trial filed on November 5, 2021. We concluded that each subsequent motion constituted an abandonment of the previous motion filed, because the new motion changes the date by which the State must bring the defendant to trial. Id. at 1193. Therefore, we concluded that the question became whether the trial court tried Finnegan within the applicable time period after November 5, 2021, the date of the filing of the last motion.

[16] We concluded that the request for discharge was moot once the trial court released him on his own recognizance, and the State brought Finnegan to trial within the time mandated by Rule 4(C). Id. at 1197. Additionally, we observed that after balancing the Barker v. Wingo, 407 U.S. 514 (1972) factors,² the State did not violate Finnegan's constitutional speedy trial rights. Id. at 1195-98.

[17] Next, Finnegan's appellate counsel Lisa Manning filed a petition to transfer to the Indiana Supreme Court. The petition asked the Supreme Court to reconsider this Court's holding that Finnegan's subsequent “early trial motions” constituted an abandonment of his earlier motions. Ex. Vol. IV, p. 215 (petition to transfer). The Supreme Court denied his petition to transfer.

E. Post-Conviction Proceedings

[18] On November 2, 2023, Finnegan filed a petition for post-conviction relief, which he later amended. In the amended petition, Finnegan alleged that his trial counsel performed deficiently as his sentencing hearing attorney because: he failed to investigate Finnegan's insanity defense in 66D01-2201-F6-01 to use as mitigating evidence; failed to present any mitigating evidence; failed to object when the court found aggravating factors not supported by the record; and failed to object to the maximum six-year sentence Finnegan received.

[19] As for his appellate counsel, Finnegan argued that she performed deficiently as his appellate counsel because she: failed to investigate and raise an issue concerning the selection and appointment of Senior Judge Shurn; failed to investigate and raise an issue concerning the selection and appointment of Special Judge Hall; failed to argue that Achey only filed the competency evaluation in his underlying case to punish Finnegan for trying to exercise his speedy trial rights; failed to challenge the length of his sentence; failed to argue that Finnegan was denied his constitutional right to a speedy trial in the petition to transfer; and failed to argue that court costs and fees should not have been taken out of his cash bond.³

[20] After the State responded to the petition, the court scheduled a case management hearing for August 20, 2024. Prior to the case management hearing, Finnegan asked the court to issue subpoenas on his behalf for the following individuals: Judge Mary Welker, Sheriff Deputy Fred Rogers, Investigator Michael Morphet, Judge Matthew Sarber, Senior Judge Michael Shurn, Pulaski County Clerk JoLynn Behny, Judge Kim Hall, Dale Starks, Andrew Achey, Bryan Cook, Richard Ballard, James Flemming, Lisa Manning, Dr. Jeff Burnett, and Dr. Stephanie Callaway. The court agreed to issue subpoenas for Achey, Cook, Ballard, and Manning, because their testimony was pertinent to Finnegan's claims of ineffective assistance of counsel. The court declined to issue subpoenas for the remaining individuals.

[21] On October 29, 2024, Manning moved for permission to appear virtually at the evidentiary hearing. She informed the court that she was scheduled to be in a jury trial in Hamilton County the same day as the evidentiary hearing. She also stated that she lived and worked “approximately two and a half hours” away from Pulaski County and that appearing in person would require her to incur “undue expense ․ both in travel and an overnight stay to ensure a 9:00[a.m.] appearance.” Appellant's App. Vol. 2, p. 110. The court granted the motion on October 31, 2024.

[22] On November 1, 2024, Finnegan filed a “verified request for public records” asking the court to direct the Pulaski County Clerk to provide him with certified copies of seven different chronological case summaries. Appellant's App. Vol. 2, p. 121. He attested that the certified records would be “necessary to enter into evidence to prove” his claim that Special Judge Hall had been appointed as his special judge eight times.” Id. The court denied his motion.

[23] The court held the evidentiary hearing on December 16, 2024. Finnegan objected to Manning appearing virtually for the hearing, claiming his case would be prejudiced without her personal appearance and because he would be unable to have her identify documents and exhibits. Tr. Vol. II, p. 19. He also asked the court to reconsider its previous ruling on the issuance of subpoenas. The court overruled the objection and denied his motion. Then, Finnegan requested a continuance, explaining that he was unprepared to proceed. He said he had lost his copies of the appellant's brief, the petition to transfer, and a copy of the chronological case summary for cause number 66D01-2207-F6-62 (F6-62). The court denied Finnegan's request for a continuance but did agree to provide him with copies of the documents he needed to move forward.

[24] After these matters were settled, Finnegan called Attorney Achey to testify. Achey had been an attorney for ten years when he represented Finnegan. His involvement began after Finnegan called him from the Four County Behavioral Health Services, a mental-health facility, where Finnegan was being held pursuant to an emergency detention order. When Finnegan asked Achey why he did not file a speedy trial motion, Achey explained that there were mental health issues involved in the case and that he did not believe that a speedy trial would have benefited Finnegan.

[25] Achey further explained that a mental-health liaison from the jail had contacted him and recommended that Achey have Finnegan evaluated for his competency to stand trial. Achey said his own interactions with Finnegan additionally informed his decision to file a motion for an evaluation rather than rush the trial schedule. He explained, “this wasn't just a, a fleeting motion. I mean I genuinely believed that [Finnegan] had uh, mental health issues at that time. Which is why I filed the motion for a competency evaluation.” Tr. Vol. II, p. 66. He further testified that “I'm not a doctor; and so I, I mean even though I had a good faith to believe this, it's beyond my expertise to go into Court and tell a Judge, an individual lacks the ability to understand the proceedings, an individual lacks the ability to assist in the preparation of his defense.” Id. at 68. Finnegan asked Achey whether he filed the motion as “a deviant tactic” designed to punish him “with undue pretrial detention.” Id. at 84. Achey responded, “Absolutely not.” Id.

[26] Next, Attorney Ballard testified that he was appointed as standby counsel for the jury trial and assumed a more active role in Finnegan's sentencing hearing. He prepared for the sentencing hearing by reviewing Finnegan's record and meeting with him to discuss what would be the most compelling arguments. After considering options, Ballard asked the court to impose a three-year sentence because he “knew the Judge wasn't going to give [Finnegan] a slap on the wrist” in response to the “outrageous” threats Finnegan communicated to Judge Welker. Id. at 91. Additionally, he explained that he did not object to the six-year sentence that was imposed because he did not believe that an objection would have been granted.

[27] Attorney Manning also testified. She stated that she had been an attorney since 2003 and had over twenty years of experience when she represented Finnegan on appeal. Manning stated that she sent Finnegan a letter advising him of appellate deadlines, and that he replied with a letter of his own, detailing which issues he believed were the most important. Among Finnegan's priorities were claims of prosecutorial misconduct, judicial disqualification, judicial misconduct, and the speedy trial requests. Manning chose to raise issues concerning Criminal Rule 4 and Finnegan's constitutional speedy trial rights, as the other issues, in her opinion, were not meritorious.

[28] She chose not to challenge the selection process or appointment of Senior Judge Shurn or Special Judge Hall because she did not find that the “Court did anything wrong in those appoints,” and that even if it did, those appointments did not impact Finnegan's trial. Id. at 101. And she did not include an allegation that Attorney Achey had engaged in “attorney misconduct” by having Finnegan's competency evaluated. Id. She explained that Finnegan was not found to be incompetent and the delay caused by the evaluation would not have made a difference in her Criminal Rule 4 or speedy trial arguments.

[29] Manning did not challenge the length of Finnegan's sentence because she believed the trial court had found sufficient aggravating factors to support the six-year sentence. Additionally, the trial court expressly found Finnegan to be “the worst of the worst ․ for intimidation of a Judge[.]” Id. at 105. Manning explained that “[w]e can't raise everything, we raise the arguments that we think are the most likely to be successful on appeal, and that's what I did in this case ․” Id. at 106.

[30] The post-conviction court issued its written findings of fact and conclusions of law denying Finnegan relief. The post-conviction court concluded that neither Ballard's nor Manning's performance fell below the standard of professional reasonableness and conduct. Finnegan failed to show a reasonable probability that the outcome of his sentencing or appeal would have been different had Ballard or Manning performed their roles differently. In sum, the court concluded that Finnegan had failed to meet his burden of proof and denied him relief.

Discussion and Decision

Standards of Review

[31] “Post-conviction procedures do not afford the petitioner with a super-appeal.” Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). “Instead, they create a narrow remedy for subsequent collateral challenges to convictions, challenges which must be based on grounds enumerated in the post-conviction rules.” Id. A petitioner who has been denied post-conviction relief appeals from a negative judgment and as a result, faces a rigorous standard of review on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001); Collier v. State, 715 N.E.2d 940, 942 (Ind. Ct. App. 1999), trans. denied.

[32] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Therefore, to prevail, a petitioner must establish his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition, a petitioner must convince this court that the evidence, taken as a whole, “leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court.” Stevens, 770 N.E.2d at 745. “In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did.” Id. “It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that its decision will be disturbed as contrary to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied. “The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

[33] And to the extent that any of Finnegan's arguments suggest the ineffective assistance of trial and/or appellate counsel, the following standard of review applies. “The right to effective counsel is rooted in the Sixth Amendment of the United States Constitution.” Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “ ‘The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results.’ ” Id. (quoting Strickland v. Washington, 466 U.S. 668, 685 (1984)). “ ‘The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” Id. (quoting Strickland, 466 U.S. at 686).

[34] A successful claim for ineffective assistance of counsel must satisfy two components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). For the first component, the petitioner must establish that counsel's performance was deficient by demonstrating that counsel's representation “fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id. (internal quotation omitted). “We recognize that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client,” and therefore, under this component, we will assume that counsel performed adequately and defer to counsel's strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). “Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.” Id.

[35] For the second component, the petitioner must show that the deficient performance resulted in prejudice. Reed, 866 N.E.2d at 769. A petitioner may show prejudice by demonstrating that there is “a reasonable probability (i.e. a probability sufficient to undermine confidence in the outcome) that, but for counsel's errors, the result of the proceeding would have been different.” Id. (italics added, internal quotation omitted).

[36] A petitioner's failure to satisfy either component will cause the ineffective assistance of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently, “[a]lthough the two parts of the Strickland test are separate inquires, a claim may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006).

[37] And ineffective assistance of appellate counsel claims generally fall into three basic categories. They are: “(1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well.” Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). “To show that counsel was ineffective for failing to raise an issue on appeal thus resulting in waiver for collateral review, the defendant must overcome the strongest presumption of adequate assistance, and judicial scrutiny is highly deferential.” Id. “To evaluate the performance prong when counsel waived issues upon appeal, we apply the following test: (1) whether the unraised issues are significant and obvious from the face of the record and (2) whether the unraised issues are ‘clearly stronger than the raised issues.’ ” Id. (quoting Timberlake v. State, 753 N.E.2d 591, 605-06 (Ind. 2001)). “If the analysis under this test demonstrates deficient performance, then we examine 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.’ ” Id. (quoting Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997) (citation omitted)). And we must

consider the totality of an attorney's performance to determine whether the client received constitutionally adequate assistance ․ [and] should be particularly sensitive to the need for separating the wheat from the chaff in appellate advocacy, and should not find deficient performance when counsel's choice of some issues over others was reasonable in light of the facts of the case and the precedent available to counsel when that choice was made.

Id. at 1195-96 (quoting Bieghler, 690 N.E.2d at 194). “Ineffective assistance is very rarely found in cases where a defendant asserts that appellate counsel failed to raise an issue on direct appeal.” Reed, 856 N.E.2d at 1196. “One reason for this is that the decision of what issues to raise is one of the most important strategic decisions to be made by appellate counsel.” Id.

I. Speedy Trial—Res Judicata

[38] In his petition, Finnegan repeats his argument that the trial court erred by denying his motions for discharge pursuant to Criminal Rule 4 because he was held in pretrial detention for longer than seventy days and was brought to trial more than a year after the State filed charges against him. And he renews his arguments that the State violated his constitutional right to a speedy trial under both the state and federal constitutions. Though he concedes that aspects of his argument in his opening brief are incorrect, he stands on his legal contentions. Reply Br. p. 6. Thus, he contends the post-conviction court erred in denying him relief. Nevertheless, these post-conviction arguments are barred by claim preclusion.

[39] “Res judicata serves to prevent repetitious litigation of disputes which are essentially the same.” Hilliard v. Jacobs, 957 N.E.2d 1043, (Ind. Ct. App. 2011), trans. denied, cert. denied, 568 U.S. 998 (2012). “Claim preclusion, [one of two components of res judicata] applies when a final judgment on the merits has been rendered in a prior action, and it acts to bar a subsequent action on the same claim between the same parties.” Id.

Claim preclusion applies when the following four factors are satisfied: 1) the former judgment must have been rendered by a court of competent jurisdiction; 2) the former judgment must have been rendered on the merits; 3) the matter now in issue was, or could have been, determined in the prior action; and 4) the controversy adjudicated in the former action must have been between the parties to the present suit or their privies.

Id.

[40] Every factor has been satisfied here. First, this Court's decision on Finnegan's direct appeal considering this very issue was made by a court of competent jurisdiction. Ind. Appellate Rule 5(A) (“[T]he Court of Appeals shall have jurisdiction in all appeals from Final Judgments of ․ Superior Courts[.]”). Second and third, as discussed in comprehensive detail above, the fast and speedy trial arguments Finnegan makes now and that he made on direct appeal were thoroughly considered and determined on the merits. And last, the parties—Finnegan and the State—are the same here as in the direct appeal.

[41] Yet, Finnegan maintains that the application of res judicata would be unfair because Attorney Manning, his appellate counsel, “presented the facts on direct appeal with unprofessional errors.” Appellant's Br. p. 11. He argues that in light of those unprofessional errors he was denied the ability to fully and fairly litigate his claim. For example, he argues Attorney Manning's error was a reference to a speedy trial request, which he initially contended was a “phantom that does not exist in the record” but then later acknowledged did exist. Id. at 14; Reply Br. p. 6. And he takes issue with Attorney Manning's allegedly mistaken reference to a jury trial scheduled for February 16, 2021, a date which was not used by this Court in the speedy trial analysis. See Finnegan, 201 N.E.3d at 1192-98. But the argument that we should analyze whether he had a full and fair opportunity to litigate the issue suggests an issue preclusion analysis. See Miller v. Patel, 212 N.E.3d 639, 647 (Ind. 2023) (discussing appropriateness of issue preclusion/collateral estoppel application). Finnegan has not met his burden on this issue.

II. PCR Court's Response To Records Request

[42] Finnegan next claims that the post-conviction court abused its discretion by denying his requests for certain records. “An abuse of discretion has occurred if the court's decision is against the logic and effect of the facts and circumstances before the court.” Allen v. State, 791 N.E.2d 748, 756 (Ind. Ct. App. 2003), trans. denied. Finnegan claims the court erred by: (1) taking judicial notice of the filings in F6-62; (2) denying his request for certified copies of chronological case summaries from seven other cases of his over which Special Judge Hall had been selected to preside; and (3) ruling on his motions for records before the State filed its response.

[43] The argument Finnegan presented to the post-conviction court was that “Judge Kim Hall picked and chose what proceeding to facilitate speedy trial for.” Appellant's Br. p. 16. Nothing about the post-conviction court's procedure prevented Finnegan from presenting his claim.

[44] On appeal, Finnegan argues that the court erred by taking judicial notice of the proceedings in F6-62. He would have preferred that the court provide him with physical copies of the filings from that cause number for use in the evidentiary hearing. However, Finnegan never asked the court for a copy of the filings in those proceedings. And a trial court is allowed to take judicial notice of the existence of the records of a court of this state. Ind. Evidence Rule 201. A court cannot abuse its discretion for failing to do something a party has not requested.

[45] Furthermore, immediately prior to testifying Finnegan explained that he wanted to introduce a copy of the CCS from that case to “show that in July of 2021 at the initiation of those criminal proceedings, [he] moved for a fast and speedy trial by jury, and Kim Hall was selected again as Special Judge and granted that fast and speedy trial motion.” Tr. Vol. II, p. 111. The post-conviction court assured Finnegan that it would take judicial notice of “that proceeding and the filings.” Id. at 112. And the court subsequently admitted a copy of the CCS from that proceeding at Finnegan's insistence. Id. at 118. We conclude that Finnegan received exactly what he wanted and that the post-conviction court did not err.

[46] Next, Finnegan claims that the post-conviction court erred by denying his request for certified copies of chronological case summaries from seven other cases he wanted to introduce at the hearing in support of his argument that Special Judge Hall had been selected to preside over his cases eight times. But Finnegan testified at the hearing to that very information, contending that the repeated appointments of Judge Hall, in his opinion, violated the local rules for selection of special judges. The post-conviction court heard Finnegan's claims and explained that beyond the local rules, the Supreme Court can order that judges preside over or transfer to other judges certain cases. The post-conviction court did not err by denying Finnegan's request for chronological case summaries from his seven other cases.

[47] And Finnegan also claims that the post-conviction court engaged in misconduct by ruling on his records requests prior to receiving the State's response. Assuming for the sake of argument that the post-conviction court did abuse its discretion, Finnegan's claim fails to show prejudice from the court's rulings. He wanted to introduce evidence to support his claim that Judge Hall was selected to serve as Special Judge over eight of his criminal cases. And Finnegan was allowed to argue that such procedure, in his opinion, was against the procedure set out in the local rules. “No error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting relief or reversal on appeal where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.” Ind. Appellate Rule 66(A). Finnegan has failed to explain how he was harmed by the court choosing not to wait for the State's response.

[48] The post-conviction court did not abuse its discretion regarding Finnegan's records requests.

III. Denial of Request For Continuance

[49] Finnegan says that the post-conviction court abused its discretion “and denied [him] a fundamental [sic] fair proceeding” by not granting his request for a continuance made on the morning of the evidentiary hearing. Appellant's Br. p. 17. “[W]e review the grant or denial of a continuance for abuse of discretion.” Tapia v. State, 753 N.E.2d 581, 586 (Ind. 2001). An abuse of discretion occurs only when the ruling is clearly against the logic and effect of the facts and circumstances. Allen, 791 N.E.2d at 756.

[50] The record reflects that Finnegan amended his petition on July 15, 2024 and his evidentiary hearing took place on December 16, 2024. He had over five months to prepare for his hearing. Nevertheless, he argues that he needed a continuance because his “property was packed up” and he lost his copies of the appellant's brief, petition to transfer, and CCS in F6-62.⁴ Turning again to the record, however, it reflects that the post-conviction court provided the appellant's brief, the petition to transfer, and the CCS from F6-62 to Finnegan, but denied the motion for continuance. Thus, Finnegan had the documents in his possession for use at the evidentiary hearing. Therefore, the basis for his request for continuance had been satisfied. Finnegan has not established that he was prejudiced by the court's denial of his request for a continuance. The post-conviction court did not abuse its discretion.

IV. Subpoena Request Denial

[51] Finnegan requested the post-conviction court to issue a subpoena to the Pulaski County Clerk, JoLynn Behny. Post-Conviction Rule 1(9)(b) sets out the procedure a pro se petitioner must follow to request the issuance of subpoenas. In particular, the petitioner “shall specifically state by affidavit the reason the witness’ testimony is required and the substance of the witness’ expected testimony.” P-C.R. 1(9)(b). The court shall order that the subpoenas be issued only if the court finds that the witness’ testimony would be “relevant and probative.” Id. If the court finds that the witness’ testimony is not relevant and probative, then the court shall enter a finding on the record and refuse to issue the subpoena. Id. “The decision to grant or deny a request for issuance of a subpoena is within the ․ court's discretion.” Collins v. State, 14 N.E.3d 80, 84 (Ind. Ct. App. 2014). We review the court's decision for an abuse of that discretion. Id.

[52] Finnegan filed a verified request for the issuance of subpoenas, including one for the Pulaski County Clerk, JoLynn Behny. He averred that her testimony would be necessary to prove his “claim of ineffective assistance of counsel ․ identifying why for the eighth time in a row she circumvented and ignored Pulaski Co. local rule” to select Special Judge Hall. Appellant's App. Vol. 3, pp. 91-92. However, he did not include the substance of the witness’ expected testimony as required by the Rule. Id.

[53] During the case management conference, the court considered Finnegan's requests and issued subpoenas for his previous attorneys: Achey, Cook, Ballard, and Manning. The court reasoned that his attorneys would have the most meaningful testimony to address the underlying claims of ineffective assistance of counsel. However, the court denied Finnegan's request to subpoena the Pulaski County Clerk, concluding that Behny would not be able to provide testimony relevant to Finnegan's claims of ineffective assistance of counsel. The court's decision does not amount to an abuse of discretion.

[54] The selection and appointment process of special judges has nothing to do with Ballard's representation of Finnegan during the sentencing hearing, or Manning's representation of him during his direct appeal. As we discuss more fully below, Special Judge Hall was properly selected and appointed to preside over Finnegan's cases pursuant to Trial Rule 79 and the Pulaski County Local Rules. Therefore, Pulaski County Clerk Behny could not have offered any relevant or probative testimony. The post-conviction court did not err.

V. Allowing Appellate Counsel to Appear Virtually

[55] Next, Finnegan claims that he was denied “a fundamentally fair proceeding” and that the post-conviction court “engaged in misconduct” when it allowed Attorney Manning, Finnegan's appellate counsel, to appear virtually for the evidentiary hearing. Appellant's Br. p. 6.

[56] Indiana Administrative Rule 14 gives courts the authority, in testimonial proceedings, to allow “all or some of the case participants” to appear virtually “for good cause shown.” Ind. Administrative Rule 14(C). “[W]e review a trial court's good-cause determination for an abuse of discretion.” B.N. v. Health and Hospital Corp., 199 N.E.3d 360, 363 (Ind. 2022). Good cause “requires a ‘particular and specific demonstration of fact.’ ” Id. at 364 (quoting Ramirez v. State, 186 N.E.3d 89, 95 (Ind. 2022)).

[57] Here, Attorney Manning's request was supported by case-specific circumstances that made her trip to Pulaski County unfeasible. She explained that she was scheduled to be in a jury trial in Hamilton County on the same day as the evidentiary hearing. Furthermore, she lived “approximately two and a half hours” away from the Pulaski County courthouse and explained that appearing in person would require her to incur undue expense ․ both in travel and an overnight stay to ensure a 9:00[a.m.] appearance.” Appellant's App. Vol. 2, p. 110.

[58] Additionally, Finnegan has not established that he was prejudiced by the post-conviction court's decision. He claims that Manning was his “most important witness and was not present to view and examine documents.” Appellant's Br. pp. 33-34. However, the record reflects that Finnegan fully and effectively examined Attorney Manning about her representation of him. Moreover, Finnegan could have directed Attorney Manning to view the screen to show her the documents he wanted to emphasize, but he did not. The post-conviction court's decision did not prevent him from trying to show Attorney Manning the documents.

[59] And Finnegan questioned Attorney Manning about the competency evaluation, the appointment and selection of Senior Judge Shurn and Special Judge Hall, and why she chose to include certain issues in his brief on direct appeal while omitting others. Finnegan has not established how his arguments could have been made stronger by her physical presence at the hearing. The post-conviction court did not abuse its discretion.

VI. Ineffective Assistance of Sentencing Counsel Claim

[60] Finnegan argues for the first time on appeal that “Ballard was ineffective as sentencing counsel for not making any objections at sentencing and therefore waiving issues for appeal of an illegal, unconstitutional sentence of six (6) years based on the Blakely doctrine and court costs and fees taken out of a full cash bond[.]” Appellant's Br. p. 36. This is the sum total of Finnegan's arguments.

[61] In addition to the appropriate standards set out above, we note that “[a] litigant is not given special consideration by virtue of his pro se status.” Kelley v. State, 166 N.E.3d 936, 937 (Ind. Ct. App. 2021). Instead, “ ‘pro se litigants are held to the same legal standards as licensed attorneys.’ ” Id. (quoting Sidener v. State, 446 N.E.2d 965, 966 (Ind. 1983)). “ ‘This means that pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so.’ ” Id. Not only has Finnegan failed to develop his argument with citations to the record and authority, but he has waived this issue for our review because he did not raise it before the post-conviction court. It is well settled that a party may not raise one ground before the trial court and a different ground on appeal. Wurster v. State, 715 N.E.2d 341, 347-48 (Ind. 1999). Finnegan has waived this issue for our review.

VII. Ineffective Assistance of Appellate Counsel Claim

[62] Finnegan claims that Attorney Manning rendered ineffective assistance of appellate counsel. We have previously stated the appropriate, two-part test for review of such claims. See supra, Standards of Review. Of the three types of ineffective assistance of appellate counsel claims, Finnegan's seven claims fall into the categories alleging Attorney Manning's waiver of issues or failure to present issues well.

[63] Four of Finnegan's claims have been waived for our review. For example, his argument that this Court “divested itself of subject matter jurisdiction” when it ruled against him on his Criminal Rule 4 claim on direct appeal, Appellant's Br. p. 17, is waived because he did not include it in his petition for post-conviction relief, nor did he address the issue when questioning his witnesses during the evidentiary hearing. See Appellant's App. Vol. 2, pp. 87-93 (Amended Petition for post-conviction relief); Tr. Vol. 2, p. 15-136 (PCR evidentiary hearing). He also argues that Manning performed deficiently because she failed to present his Criminal Rule 4 and speedy trial issue well by including “phantom filings” in her calculation, not simplifying her argument, and not advancing an additional argument under Criminal Rule 4(A). Appellant's Br. pp. 18-20. But Finnegan has waived this argument for review by failing to include it in his petition for post-conviction relief. See Appellant's App. Vol. 2, pp. 87-93 (Amended Petition for post-conviction relief).

[64] Additionally, Finnegan's argument that Manning performed deficiently by failing to raise the issue that Ballard performed deficiently as his sentencing counsel is waived because he did not include it in his petition for post-conviction relief. Id. Instead, he argued that Manning performed deficiently as his appellate counsel by failing to challenge the length of his sentence and failing to argue about the propriety of the court's order that court costs and fees be taken out of his cash bond on direct appeal. On appeal from the denial of his petition, he argues that Manning was ineffective as his appellate counsel for failing to raise the issue that Ballard was ineffective by failing to raise those issues at the sentencing hearing. These are two different arguments. And as such, his argument is waived for review. As for his argument that Manning was ineffective for failing to argue that Special Judge Hall committed judicial misconduct, that issue is also waived for our review. Finnegan did not include this argument in his petition. Id.

[65] We now consider the issues which were not waived for our review. Finnegan claims that Manning performed deficiently on his direct appeal by failing to argue that Attorney Achey filed the competency evaluation in the underlying case solely to punish him for exercising his speedy trial rights. Manning's performance, however, was not deficient because that issue was neither significant nor obvious from the face of the record, and certainly would not have been stronger than the issues Manning did raise on appeal. See Bethea v. State, 983 N.E.2d 1134, 1139 (Ind. 2013).

[66] The record does not support the argument that Achey acted vindictively when he filed the motion to have Finnegan's competency evaluated. When he was appointed to the case, Achey knew that Finnegan had been detained in a mental-health facility for communicating additional threats to Judge Welker. And Achey knew that Finnegan's mental health would play an “imperative part in the litigation process.” Ex. Vol. 4, p. 81 (Letter from Achey to Finnegan). Achey had “good faith to believe” that Finnegan's ability to understand the proceedings and assist in his defense was being impaired by his mental health. Tr. Vol. 2, pp. 67-69. The trial court granted the motion, which it can only do if it agrees that there are “reasonable grounds for believing that the defendant lacks the ability to understand the proceedings and assist in the preparation of a defense ․” Ind. Code § 35-36-3-1(a) (2018). Finnegan has not established that Manning performed deficiently by failing to raise this issue on direct appeal.

[67] Next, Finnegan argues that Manning performed deficiently as appellate counsel by failing to challenge the selection and appoint of Senior Judge Shurn. Again, this claim fails. The Supreme Court and legislature have approved of the use of senior judges. According to the Office of Judicial Administration:

In 1989, the legislature authorized the creation of the Senior Judge program allowing Indiana courts to use the services of retired or former judges to supplement existing judicial resources (IC 33-23-3-1). As envisioned, courts now use senior judges as a replacement in the absence of a regular judge, as a complement to the regular judge or to oversee the processing of certain types of cases or court programs.

See https://www.in.gov/courts/admin/senior-judges/ [https://perma.cc/8JZQ-ZVBB] (last visited March 26, 2026).

[68] Judge Shurn requested permission from the Indiana Supreme Court in 2018 to be appointed as a Senior Judge. See In the Matter of: Certification of Senior Judge Michael Shurn, No. 18S-MS-601 (Ind. Dec. 17, 2018). Chief Justice Rush, as the Chair of the Indiana Judicial Qualifications Commission, determined that he met the criteria for appointment and certified that he was eligible. Id. He was recertified in 2019. See In the Matter of: Recertification of Senior Judges for Calendar Year 2020, No. 19S-MS-650 (Ind. Dec. 10, 2019). He was recertified once again in 2020. In the Matter of: Recertification of Senior Judges for Calendar Year 2021, No. 20S-MS-589 (Ind. Oct. 16, 2020). His 2020 recertification covered the 2021 calendar year in its entirety. And he received the consent of the Pulaski County Superior Court Judge on June 1, 2020, to serve as Senior Judge that day either to oversee the entire criminal court docket or to oversee the processing of certain types of cases—such as initial probable cause determinations. See Statistics, https://www.in.gov/courts/admin/senior-judges/ [https://perma.cc/8JZQ-ZVBB] (click link titled “2020 Spreadsheet of Senior Judge Appointments and Services,” then click on the tab titled “Senior Judge Detail,” and search for “Senior Judge Shurn”) (last visited March 26, 2026).

[69] Therefore, Senior Judge Shurn was authorized to review Finnegan's charges for probable cause and to set the initial bond amount on June 1, 2020. Consequently, his argument that the appointment was irregular and that Senior Judge Shurn lacked authority to hear matters in Pulaski County is without merit. Attorney Manning testified at the hearing that she did not raise the issue because she did not believe the “court did anything wrong in those appointments” and that, even if the appointments were “irregular,” they did not impact Finnegan's trial. Tr. Vol. 2, p. 101. Finnegan's claim of ineffective assistance of appellate counsel fails.

[70] As a final matter, Finnegan claims that Manning's performance was deficient because she failed to challenged the selection and appointment of Special Judge Hall. His claim centers on his characterization of Special Judge Hall's “irregular chronological appointment for the 8th time in a row.” Appellant's Br. p. 27. His contention is that he objected to the appointment below, preserving the issue for appeal, but Manning failed to take advantage of the record he preserved. Id. Manning testified that she made the strategic decision not to challenge the appointment on appeal because she did not find it meritorious. We agree.

[71] Trial Rule 79 governs the selection of special judges. In pertinent part it says, “in the event the parties do not reach an agreement,” on which judge should be selected to replace the original judge (which is the case here), “the appointment of an eligible special judge shall be made pursuant to a local rule approved by the Indiana Supreme Court ․” T.R. 79(H). Pulaski County local rules provide that,

In the event a judge disqualifies and recuses under Trial Rule 79(C), and a special judge is not selected [by agreement of the parties], then the clerk of the court shall appoint as special judge the other Pulaski County Judge; and if that judge does not qualify as a special judge, the clerk of the court shall appoint, on a rotating basis, a special judge from the following list of judicial officers[.]

LR66-TR79-01(a). The local rule provides a list of contiguous counties from which the clerk may select the special judge. Id. It includes Starke County, Cass County, Fulton County, Jasper County, White County, and LaPorte County. Id.

[72] Therefore, pursuant to Trial Rule 79 and Pulaski County local rules, Judge Hall, of Starke County, was eligible to sit as special judge after the original presiding judge, Crystal Kocher, recused herself. He had been assigned to different cases involving Finnegan as a litigant, he had not previously served as judge in the present case and was eligible for appointment. Judge Hall had no choice but to accept the appointment because he had no reason to seek disqualification from the case. Attorney Manning correctly assessed the issue. Finnegan has failed to establish ineffective assistance of appellate counsel.

Conclusion

[73] In light of the foregoing, we affirm the post-conviction court's judgment.

[74] Affirmed.

FOOTNOTES

1.   Finnegan communicated these threats while utilizing a veteran's crisis hotline. After making the threats, Finnegan was detained pursuant to an emergency detention order. Finnegan was subsequently housed at a mental health facility and arrested upon his release from that facility.” Id. at n.2.

2.   The test announced in Barker v. Wingo, 407 U.S. 514, 530 (1972) assesses both the government's and the defendant's conduct and takes into consideration (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of the speedy trial right, and (4) any resulting prejudice.

3.   Finnegan also alleged that his conviction should be set aside due to newly discovered evidence that Finnegan was “insane and not competent to stand trial pro se.” Appellant's App. Vol. 2, p. 88. Finnegan withdrew that ground for relief at the evidentiary hearing. Tr. Vol. II, p. 41.

4.   Additionally, Finnegan requested more time to subpoena Dr. Celestine DeTrana. Tr. Vol. II, p. 33. Because he does not mention Dr. DeTrana in his brief, he has abandoned that issue on appeal. See Appellant's Br. 17.

Baker, Senior Judge.

Kenworthy, J., and Foley, J., concur.