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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: WILLIAM JAMES WISE Pendleton, Indiana ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
WILLIAM JAMES WISE, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

Mar 05 2010, 10:14 am

CLERK

No. 49A02-0811-PC-1019

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Tanya Walton Pratt, Judge Cause No. 49G01-9403-PC-23557

March 5, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge

William Wise appeals the post-conviction court's denial of his pro se petition for post-conviction relief. Wise raises eight issues which we revise and restate as: I. II. III. We affirm. The relevant facts as discussed in Wise's direct appeal follow. William and Michelle Wise were married in July of 1992, two months after learning that Michelle was pregnant with Wise's child. Michelle delivered a baby boy, Matthew, on January 15, 1993. The three resided in a home with a central alarm system connected to smoke detectors and a burglar alarm. Matthew's nursery was on the second floor and the Wises' bedroom was on the ground level. A baby monitor was located under Matthew's bed and the Wises were able to hear Matthew crying through a portable receiver. At about 2:00 a.m. on March 6, 1993, the Wises awoke to the sound of Matthew crying. Wise went upstairs to feed the baby and remained upstairs on the sofa afterward. Sometime between 4:30 and 5:00 a.m., Michelle went upstairs where she found Wise asleep on the sofa. She spoke to him for about ten minutes and then started downstairs. Although Michelle did not see or smell any smoke, the alarm went off as she approached the stairway. The alarm had gone off previously when there was no fire. Wise went down the stairway to check the main control panel and Michelle followed. After checking another control panel located in the downstairs foyer, the Wises observed smoke coming from the upper level of the home. Wise then returned upstairs to get a cordless phone but did
Wise raises eight issues in his statement of the issues. Although Wise is proceeding pro se, such litigants are held to the same standard as trained counsel and are required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. Wise fails to put forth a cogent argument regarding a number of his issues. Consequently, these issues are waived. See, e.g., Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding that the defendant's contention was waived because it was "supported neither by cogent argument nor citation to authority"); Shane v. State, 716 N.E.2d 391, 398 n.3 (Ind. 1999) (holding that the defendant waived argument on appeal by failing to develop a cogent argument). 2
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Whether the evidence was sufficient to support Wise's conviction; Whether Wise was denied effective assistance of trial counsel; and Whether newly discovered evidence requires a new trial.1

not go down the hallway to Matthew's room. Instead, he brought the phone downstairs, attempted to call 911, but told Michelle that the phone was not working. Wise asked Michelle to go to a neighbor's house to call 911, and stated that he would get Matthew. Michelle called 911 from a neighbor's home at 5:09 a.m., and Wise called 911 from another neighbor's house at 5:10 a.m. Michelle did not tell the 911 operator that Matthew was in the house, but Wise did state that "[t]he baby" was upstairs. In his statement to police, Wise reported that before calling 911 he had made it to the hallway outside of Matthew's bedroom but was forced to turn back because he was having problems breathing. However, Indianapolis police officer Keith Williams arrived within ninety seconds of the dispatch and found Wise standing in the doorway. Wise, who had previously received fire training and was employed at the time as a fire/EMS dispatcher, was clad in firefighter's clothing (helmet, jacket, and boots) and told Williams that he was with the Indianapolis Fire Department. Williams believed that Wise had not been in the house because he was not coughing and did not have any soot on his face. Although Wise told Williams that there was a baby in the house, he did not mention that the child was his or indicate that he had attempted a rescue. At Williams ' suggestion, the two men entered the house. They went up the stairs and turned left towards Matthew's room. Williams, who was not wearing fire gear, was overwhelmed by smoke and backed out of the house. Firefighters arrived as Williams was exiting, and Wise collided with one firefighter near the top of the stairs. The firefighters went to Matthew's room and extinguished the fire with a two to three second blast of a firehose at 5:16 a.m. The contents of the room were completely burned so that nothing stood more than six inches above the floor. After searching through the rubble by hand, a firefighter discovered Matthew's body. Matthew's entire body, except for a portion of the groin area, was severely charred. Major portions of his arms and legs had been burned away, and the remaining underlying soft tissues were exposed. The pathologist opined that such injuries could not have been caused by a nonaccelerated fire of fifteen to twenty minutes in duration. David Lepper, an Indianapolis Fire Department investigator, examined the remains of Matthew's room and concluded that the fire was intentionally set. James Finnerman, an electrical engineer, ruled out several accidental causes and also concluded that the fire had been intentionally set.

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Nearly a year after the fire, Wise was charged with murder, felony murder, and arson as a Class A felony. After a two week trial a jury convicted him of all counts. Wise v. State, 719 N.E.2d 1192, 1194-1195 (Ind. 1999). Wise filed a direct appeal challenging admission of certain evidence at the trial, a jury instruction, prosecutor conduct, the sufficiency of the evidence, and his sentence. Id. at 1194. The Indiana Supreme Court affirmed the conviction for murder, reduced his conviction for arson as a class A felony to a class B felony, and amended his sentence. Id. at 1201. Wise filed a pro se petition for post-conviction relief on January 22, 2004, and an amended petition for post-conviction relief on July 11, 2007. Wise alleged that he received ineffective assistance of counsel and that newly discovered evidence required a new trial. In the State's answer to Wise's petition for post-conviction relief, the State argued that some of Wise's claims were barred by the doctrine of res judicata. A chronological case summary entry dated August 8, 2007, indicates that Wise was referred to the State Public Defender. The State Public Defender withdrew her appearance on August 28, 2007. At the hearing on Wise's amended petition for postconviction relief, Wise called no witnesses other than himself and offered only one exhibit, a letter from the United States Consumer Product Safety Commission acknowledging receipt of his Freedom of Information Act request for records relating to Fisher Price Baby Monitors. On September 4, 2008, the court denied Wise's petition and issued findings of fact and conclusions thereon. The trial court's order stated, in part, "The petitioner called no
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witnesses and offered only one exhibit, a letter from the US Consumer Product Safety Commission." Appellee's Appendix at 34. Before discussing Wise's allegations of error, we note the general standard under which we review a post-conviction court's denial of a petition for post-conviction relief. The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-

conviction relief, the petitioner stands in the position of one appealing from a negative judgment. 810 N.E.2d at 679. On review, we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. Further, the post-conviction court in this case entered findings of fact and conclusions thereon in accordance with Indiana PostConviction Rule 1(6). Id. "A post-conviction court's findings and judgment will be reversed only upon a showing of clear error

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