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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. APPELLANT PRO SE: TERRY C. BROWN Carlisle, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General Of Indiana THOMAS D. PERKINS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
TERRY C. BROWN, Appellant-Petitioner, vs. STATE OF INDIANA, Appellee-Respondent. ) ) ) ) ) ) ) ) )

No. 34A05-0703-PC-137

APPEAL FROM THE HOWARD CIRCUIT COURT The Honorable Lynn Murray, Judge Cause No. 34C01-0401-PC-20

October 9, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Terry Brown appeals the denial of his petition for post-conviction relief. On appeal, Brown raises three issues, which we restate as whether Brown waived his freestanding claim of trial error by failing to raise it on direct appeal, whether the post-conviction court properly denied Brown relief based on his claim of ineffective assistance of trial counsel, and whether the post-conviction court properly denied Brown relief based on his claim of ineffective assistance of appellate counsel. We affirm, concluding that Brown waived his freestanding claim of trial error and that Brown did not receive ineffective assistance of trial or appellate counsel. Facts and Procedural History On Brown's direct appeal, our supreme court related the following facts: At approximately 2:20 p.m. on July 16, 2000, Kokomo police officers Michael Banush and Greg Baldini were on bike patrol when they heard a gunshot. As they approached the scene, the officers saw Defendant run into a barbershop at 901 East North Street, exit the barbershop, and hurriedly leave the scene. Defendant was carrying what appeared to be a white document and another object. No other person was seen entering or exiting the barbershop. The officers found Charles Young, Jr.[,] laying on the sidewalk with a bullet hole in the left side of his neck. Officer Baldini stayed at the scene, while Officer Banush rode northbound after Defendant. Officer Baldini heard noises inside the barbershop. He and Officer Brannon Carpenter entered the building and located Robert Hunter, who was bleeding from an apparent gunshot wound to the head. Meanwhile, Officer Banush apprehended Defendant. After handcuffing Defendant, Officer Banush found a black leather glove on the ground and a matching glove on Defendant. In addition, Defendant had blood on his clothing, which later proved to match that of Young. Officer Banush did not see the object that he had observed Defendant carrying from the barbershop. However, a search of the area near the barbershop revealed a bag with two guns, a gun sight, and a white piece of paper. The document appeared to have blood on it. One of the guns, a .38 caliber revolver, had six empty shell 2

casings in it. The other gun, a 9mm semiautomatic, was loaded and had one round in the chamber and one round missing. Bullet fragments were removed from the bodies of both Young and Hunter. In addition, the officers recovered bullets and a 9mm shell casing at the scene. Brown v. State, 783 N.E.2d 1121, 1123-24 (Ind. 2003). The State charged Brown with two counts of murder, both felonies, and also sought life imprisonment without parole based on the murder of Hunter. The jury found Brown guilty on both counts and also recommended a sentence of life imprisonment without parole. The trial court accepted the jury's

recommendation and sentenced Brown to two concurrent sentences of life imprisonment without parole. On direct appeal, the supreme court remanded to the trial court because of deficiencies in the trial court's sentencing order. On remand, the trial court again sentenced Brown to two concurrent sentences of life imprisonment without parole, but modified its sentencing order to cure the deficiencies. The supreme court affirmed Brown's convictions, but vacated Brown's sentence and remanded to the trial court to impose consecutive sentences of fifty-five years for each count. Brown, 783 N.E.2d at 1129. Following the supreme court's decision, Brown filed a pro se petition for postconviction relief, which he later amended. The post-conviction court conducted a hearing at which Brown, the trial judge, and Brown's trial counsel testified. The post-conviction court issued findings of fact and conclusions of law denying Brown's petition for relief. Brown appeals.

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Discussion and Decision Post conviction proceedings are civil in nature and "create a narrow remedy for subsequent collateral challenges to convictions, challenges which must be based on grounds enumerated in the post-conviction rules." Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999), cert. denied, 529 U.S. 1113 (2000). To obtain relief, a petitioner bears the burden of establishing his claims by a preponderance of the evidence. Id.; Ind. Post-Conviction Rule 1,

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