Opinion
23A-PC-1446
11-26-2024
Eugene C. Tschopp, Appellant-Petitioner v. State of Indiana, Appellee-Respondent
Bailey, J., and Crone, Sr. J., concur. APPELLANT, PRO SE Eugene C. Tschopp Carlisle, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Caroline G. Templeton Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the LaPorte Superior Court The Honorable Jaime M. Oss, Judge Trial Court Cause No. 46D01-2105-PC-7
Bailey, J., and Crone, Sr. J., concur.
APPELLANT, PRO SE
Eugene C. Tschopp
Carlisle, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Caroline G. Templeton
Supervising Deputy Attorney General
Indianapolis, Indiana
Bailey Judge and Crone Senior Judge concur.
MEMORANDUM DECISION
Pyle, Judge.
Statement of the Case
[¶1] Eugene C. Tschopp ("Tschopp"), pro se, appeals the post-conviction court's denial of his petition for post-conviction relief. Tschopp argues that the postconviction court erred by denying his claim of ineffective assistance of appellate counsel. Concluding that Tschopp has failed to meet his burden of showing that the post-conviction court erred, we affirm the post-conviction court's judgment.
[¶2] We affirm.
Issue
Whether the post-conviction court erred by denying postconviction relief to Tschopp.
Facts
[¶3] The relevant facts of Tschopp's underlying offenses, as set forth by this Court in Tschopp's direct appeal, are as follows:
In December 2016, J.T. was thirteen years old and lived with her father, Christopher Tschopp ("Father"), step-mother, Tschopp, her sister, her brother, and one of her step-brothers, C.J. Tschopp is J.T.'s paternal uncle. J.T. shared a bedroom on the second floor of the home with her younger sister, I.T. The two sisters had bunk beds and J.T. would frequently sleep in the bottom bed with I.T. because of nightmares.
In January 2017, J.T. and I.T. informed Father that Tschopp had molested them. Father and his wife reported the accusations to the authorities and, on May 10, 2017, the State charged Tschopp with two counts of child molesting, as Level 1 felonies; three counts of child molesting, as Level 4 felonies; incest, as a Level 4 felony; and criminal confinement, as a Level 5 felony. A jury trial began on October 23, 2017.
At trial, J.T. testified in detail about eight separate instances that occurred during the winter of 2016-2017, in which Tschopp had sexual intercourse with, and/or sexually assaulted, J.T. in her home. J.T. described the times, places, and events of each occurrence in some detail. She testified that on at least four of these occasions, Tschopp entered her room during the night, woke her up, and either sexually assaulted her there or else had her follow him downstairs where he sexually assaulted her. J.T. testified that Tschopp molested her by touching her vagina and breasts and by penetrating her vagina with both his fingers and penis. She testified that on the last occasion, Tschopp bit J.T. on her arm when he was attempting to wake her but she was moving around. The bite left a mark on J.T.'s arm. On cross-examination of J.T., Tschopp's lawyer asked her about the large number of people in the house, whether C.J. was sometimes in her bedroom, and her father's rule that C.J. was not supposed to be in J.T.'s bedroom.
I.T. also testified at Tschopp's trial. I.T. testified about one instance in which Tschopp grabbed I.T., pulled her onto his cot in the living room, and rubbed her "butt" with his hand "in a circular motion." Tr. Vol. II at 100. I.T. also testified about two separate occasions when she witnessed Tschopp sexually assault J.T. I.T. testified that, on more than one occasion, she witnessed Tschopp enter her and J.T.'s bedroom while the girls were in bed and place either a basket or a chair up against the bedroom door to keep the door closed. I.T. testified that, on those occasions, Tschopp tried to wake up J.T. I.T. said she eventually convinced J.T. to tell their father about the molesting. J.T. informed her
father of the molesting by writing it in notes because she was "scared" to tell him in person. Id. at 169. On cross-examination, Tschopp's counsel asked I.T. about where the other males in the house slept. I.T. testified that there was a house rule that "people were not allowed in each other's room because [two of the boys] got into a fight." Id. at 113. Tschopp's counsel also brought out testimony that I.T.'s nightmares sometimes cause her to imagine things.
Father testified that J.T. had become more withdrawn and "moody" around Christmas 2016, and that he first learned about J.T.'s and I.T.'s allegations about Tschopp when they informed him through hand-written notes. Id. at 211. Father testified that he confronted Tschopp about the allegations, and Tschopp became angry and left the house that day. Father's wife, "Donica," testified that she contacted the police. Donica testified that J.T. had become more secluded and began layering her clothes around Christmas of 2016. She testified that, on the day she called the police, she saw a mark on J.T.'s arm and J.T. told Donica that Tschopp had bitten her. On cross-examination, Donica testified that the boys in the house understood the house rule that they must knock before entering someone else's bedroom.
Deputy Jon Samuelson of the LaPorte County Sheriff's Department testified that, on January 12, 2017, he responded to a report from Donica that her step-children had been inappropriately touched by their uncle. On cross-examination, Tschopp's lawyer raised questions about the Deputy's memory.
In his brief closing argument to the jury, Tschopp's lawyer pointed out that there was no physical evidence or other eyewitnesses to corroborate J.T.'s and I.T.'s testimony that Tschopp molested them. He also pointed out that there were "a number of people" living in the household but no one other than the girls witnessed the alleged molestation. Tr. Vol. III at 78.
The jury found Tschopp guilty of both Level 1 felony child molesting counts, two Level 4 felony child molesting counts, incest, and criminal confinement. The jury found Tschopp not guilty of one count on Level 4 felony child molesting[, which was the child molestation charge relating to I.T.]. At Tschopp's sentencing hearing, the trial court noted that Tschopp was represented "by trial counsel with many years of jury trial experience in criminal cases. And[,] despite a closing argument of approximately one minute in length, [Tschopp] was represented by competent counsel and received the effective assistance of counsel throughout this trial." Id. at 122. The trial court sentenced Tschopp to an aggregate sentence of sixty years in the Department of Correction.Tschopp v. State, No. 18A-CR-287 at *1-2 (mem.) (Ind.Ct.App. Nov. 2, 2018) (footnote omitted), trans. denied.
[¶4] Thereafter, Tschopp filed a direct appeal and was represented by appointed appellate counsel ("Appellate Counsel"). Appellate Counsel raised two arguments on direct appeal: (1) Tschopp's trial counsel rendered ineffective assistance of counsel by failing to adequately cross-examine witnesses and by failing to provide an adequate closing argument; and (2) there was insufficient evidence to support Tschopp's criminal confinement conviction. In regard to the argument that Tschopp's trial counsel had failed to adequately crossexamine witnesses, Appellate Counsel asserted that trial counsel had failed to adequately cross-examine J.T., I.T., and J.T.'s father and step-mother. Appellate Counsel also recounted specific testimony that these witnesses had given and set forth questions that trial counsel had failed to ask on crossexamination. Appellate Counsel argued that trial counsel's failure to adequately cross-examine witnesses was deficient performance and that it prejudiced Tschopp.
[¶5] A panel of this Court reviewed Tschopp's appellate arguments and held that Tschopp had failed to meet his burden of showing that he had received ineffective assistance of trial counsel and that there was sufficient evidence to support his criminal confinement conviction. See Tschopp, No. 18A-CR-287 at *3-4. In regard to the ineffective assistance of trial counsel issue, our Court noted that "the nature and extent of cross-examination" and "the crafting and delivery of [a] final argument" were matters of strategy for which trial counsel was entitled to the presumption of competency. Id. at *3 (internal quotation marks and citation omitted). Our Court determined that we did not need to analyze the deficient performance requirement of the Strickland analysis where Tschopp had "clearly failed to establish" the requirement of showing that his trial counsel's alleged deficient performance prejudiced his case. Id. Specifically, we noted that J.T. had provided detailed testimony about eight separate incidents of molestation by Tschopp and that her testimony had been corroborated by I.T., and we explained that "even assuming Tschopp's counsel's cross-examinations and closing statement were deficient[,]" Tschopp had failed to show that there was a reasonable probability that the outcome of his trial would have been different. Id.
[¶6] In May 2021, Tschopp filed a pro se petition for post-conviction relief. In Tschopp's petition, he alleged, in part, that Appellate Counsel had rendered ineffective assistance of counsel by failing "to raise meaningful issues on [d]irect [a]ppeal." (App. Vol. 2 at 12). The post-conviction court ordered the parties to proceed by affidavit.
Tschopp also raised four other allegations of ineffective assistance of appellate counsel in his postconviction petition, but he did not argue those other allegations to the post-conviction court in his postconviction proceeding.
[¶7] In Tschopp's affidavit, he argued that Appellate Counsel had rendered ineffective assistance by failing to adequately present the direct appeal issue of ineffective assistance of trial counsel. He asserted that Appellate Counsel's performance was deficient because she had "made no attempt to specify how trial counsel's failure to ask relevant questions was ineffective assistance and prejudiced" Tschopp. (App. Vol. 2 at 58). In his affidavit, Tschopp argued that Appellate Counsel had rendered deficient performance by failing to set forth specific questions that trial counsel should have asked on cross-examination regarding the charges against Tschopp. However, Tschopp did not argue that Appellate Counsel's performance prejudiced him or would have resulted in a different result in his direct appeal.
For example, Tschopp argued, in part, that Appellate Counsel should have argued that trial counsel failed to cross-examine J.T. about her testimony that Tschopp's penis looked like a mushroom and about why she used the word "privates" instead of the word "penis[.]" (App. Vol. 2 at 60). Tschopp also argued that Appellate Counsel should have argued that trial counsel failed to cross-examine J.T. about her testimony that Tschopp "had white stuff coming out of his privates while rubbing his privates against her butt[.]" (App. Vol. 2 at 59). Tschopp asserted that the "'white stuff' usually occur[]s after the 'hand goes back and forth', not before" and that Appellate Counsel should have argued on appeal that trial counsel's performance was deficient for failing to ask that question. (App. Vol. 2 at 59). Additionally, Tschopp argued that Appellate Counsel should have argued that trial counsel failed to cross-examine I.T. about her corroborating testimony that she had seen Tschopp's hand touching J.T.'s private parts when Tschopp touched J.T. under a blanket. Tschopp also argued that Appellate Counsel should have argued that trial counsel failed to cross-examine J.T.'s father about one of the charges.
[¶8] Thereafter, in May 2023, the post-conviction court issued an order, denying Tschopp's petition for post-conviction relief. The post-conviction court noted that Tschopp had presented "[n]othing" in his post-conviction affidavit to "demonstrate[] that the outcome of the appeal would have been different" in his direct appeal and had, therefore, failed to meet his burden of showing prejudice. (App. Vol. 2 at 10). Accordingly, the post-conviction court determined that Tschopp had failed to meet his burden of showing that his appellate counsel had rendered ineffective assistance of counsel.
[¶9] Tschopp now appeals.
Decision
[¶10] Tschopp appeals pro se and argues that the post-conviction court erred by denying him post-conviction relief. Specifically, Tschopp argues that he received ineffective assistance of appellate counsel.
[¶11] At the outset, we note that Tschopp has chosen to proceed pro se. It is well settled that pro se litigants are held to the same legal standards as licensed attorneys. Evans v. State, 809 N.E.2d 338, 344 (Ind.Ct.App. 2004), trans. denied. Thus, 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. "We will not become a party's advocate, nor will we address arguments that are inappropriate, improperly expressed, or too poorly developed to be understood." Barrett v. State, 837 N.E.2d 1022, 1030 (Ind.Ct.App. 2005), trans. denied.
[¶12] "[P]ost-conviction proceedings do not grant a petitioner a 'super-appeal' but are limited to those issues available under the Indiana Post-Conviction Rules." Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind.Ct.App. 2010), trans. denied. "In post-conviction proceedings, the petitioner bears the burden of establishing his claims by a preponderance of the evidence." Isom v. State, 170 N.E.3d 623, 632 (Ind. 2021), reh'g denied. "Where, as here, the petitioner is appealing from a negative judgment denying post-conviction relief, he must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision." Id. (internal quotation marks and citation omitted).
[¶13] We now turn to Tschopp's arguments regarding ineffective assistance of appellate counsel. Tschopp argues that Appellate Counsel rendered ineffective assistance by failing to adequately present the appellate issue that trial counsel had rendered ineffective assistance of counsel by failing to adequately crossexamine witnesses. We disagree.
Tschopp also appears to attempt to raise a separate claim that his trial counsel rendered ineffective assistance of counsel. However, such a claim is precluded by res judicata where Tschopp already raised, and our Court rejected, an ineffective assistance of trial counsel claim in his direct appeal. If an ineffective assistance of trial counsel claim is "raised on direct appeal, the appellate resolution of the issue acts as res judicata and precludes its relitigation in subsequent post-conviction relief proceedings." Jewell v. State, 887 N.E.2d 939, 941 (Ind. 2008). See also Woods v. State, 701 N.E.2d 1208, 1220 (Ind. 1998) (providing that ineffective assistance of trial counsel is not available in a postconviction proceeding if the petitioner already raised any claim of deprivation of Sixth Amendment right to counsel on direct appeal), reh'g denied, cert. denied.
[¶14] We apply the same standard of review to a claim of ineffective assistance of appellate counsel as we do to an ineffective assistance of trial counsel claim. Garrett v. State, 992 N.E.2d 710, 724 (Ind. 2013). Thus, a petitioner alleging a claim of ineffective assistance of appellate counsel is required to show that: (1) counsel's performance was deficient by falling below an objective standard of reasonableness based on prevailing professional norms; and (2) counsel's performance prejudiced the defendant such that "'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Davidson v. State, 763 N.E.2d 441, 444 (Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984), reh'g denied), reh'g denied, cert. denied. "Failure to satisfy either of the two prongs will cause the claim to fail." French v. State, 778 N.E.2d 816, 824 (Ind. 2002). "Indeed, most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone." Id. Therefore, if we can dismiss an ineffective assistance claim on the prejudice prong, we need not address whether counsel's performance was deficient. Henley v. State, 881 N.E.2d 639, 645 (Ind. 2008).
[¶15] Ineffective assistance of appellate counsel claims "'generally fall into three basic categories: (1) denial of access to an appeal[;] (2) waiver of issues[;] and (3) failure to present issues well.'" Garrett, 992 N.E.2d at 724 (quoting Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006)). Tschopp's ineffective assistance of appellate counsel claim is based upon category (3), failure to present issues well. "Claims of inadequate presentation of certain issues, when such were not deemed waived in the direct appeal, are the most difficult for [petitioners] to advance and reviewing tribunals to support." Bieghler v. State, 690 N.E.2d 188, 195 (Ind. 1997) (emphasis and citation omitted), reh'g denied, cert. denied. See also Ben-Yisrayl v. State, 738 N.E.2d 253, 260-61 (Ind. 2000) ("In a claim that appellate counsel provided ineffective assistance regarding the selection and presentation of issues, the [petitioner] must overcome the strongest presumption of adequate assistance, and judicial scrutiny is highly deferential."), reh'g denied, cert. denied.
[¶16] Our supreme court explained two reasons why this type of ineffective assistance of appellate counsel claim is "almost always unsuccessful[:]"
First, these claims [of inadequate presentation of issues] essentially require the reviewing tribunal to re-view specific issues it has already adjudicated to determine whether the new record citations, case references, or arguments would have had any marginal effect on their previous decision. Thus, this kind of ineffectiveness claim, as compared to the others mentioned, most implicates concerns of finality, judicial economy, and repose while least affecting assurance of a valid conviction.
Second, an Indiana appellate court is not limited in its review of issues to the facts and cases cited and arguments made by the appellant's counsel. We commonly review relevant portions of the record, perform separate legal research, and often decide cases based on legal arguments and reasoning not advanced by either party. While impressive appellate advocacy can influence the decisions appellate judges make and does make our task easier, a less than top notch performance does not necessarily prevent us from appreciating the full measure of an appellant's claim, or amount to a breakdown in the adversarial process that our system counts on to produce just results[.]Bieghler, 690 N.E.2d at 195-196 (internal quotation marks and citations omitted). "When the issues presented by an attorney are analyzed, researched, discussed, and decided by an appellate court, deference should be afforded both to the attorney's professional ability and the appellate judges' ability to recognize a meritorious argument." Id. at 196 (internal quotation marks and citation omitted). An ineffective assistance of appellate counsel claim based on counsel's presentation of an appellate issue "must overcome the strongest presumption of adequate assistance." Id. "Judicial scrutiny of [appellate] counsel's performance, already highly deferential, is properly at its highest" and "[r]elief is only appropriate when the appellate court is confident it would have ruled differently." Id. (internal quotation marks and citation omitted).
[¶17] On direct appeal, Tschopp argued, in part, that his trial counsel had rendered ineffective assistance by failing to adequately cross-examine witnesses. A panel of this Court reviewed this argument, noted that trial counsel's cross-examination involved trial strategy, and resolved the issue on the prejudice prong of Strickland. Specifically, we noted that J.T. had provided detailed testimony about eight separate incidents of molestation by Tschopp and that her testimony had been corroborated by I.T., and we explained that "even assuming Tschopp's counsel's cross-examinations . . . were deficient[,]" Tschopp had failed to show that there was a reasonable probability that the outcome of his trial would have been different. Tschopp, No. 18A-CR-287 at *3-4.
[¶18] As did our Court on direct appeal, we resolve Tschopp's current ineffective assistance of appellate counsel claim on the prejudice prong of Strickland. See Henley, 881 N.E.2d at 645 (explaining that if we can dismiss an ineffective assistance claim on the prejudice prong, we need not address whether counsel's performance was deficient). In Tschopp's post-conviction proceeding, he did not argue that Appellate Counsel's performance prejudiced him or would have resulted in a different result in his direct appeal. As the post-conviction court noted, Tschopp presented "[n]othing" in his post-conviction affidavit to "demonstrate[] that the outcome of the appeal would have been different" in his direct appeal and had, therefore, failed to meet his burden of showing prejudice. (App. Vol. 2 at 10). We agree with the post-conviction court's determination that Tschopp failed to meet his burden of showing that his appellate counsel had rendered ineffective assistance of counsel. Because Tschopp has failed to demonstrate "unmistakably and unerringly" that Appellate Counsel rendered ineffective assistance, we affirm the post-conviction court's denial of Tschopp's petition for post-conviction relief. See Isom, 170 N.E.3d at 632 (explaining that a post-conviction petitioner appealing from a negative judgment denying postconviction relief must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision).
[¶19] Affirmed.