CRONE, Judge.
Rayshawn Winbush appeals the denial of his amended petition for postconviction relief. In his petition, he claims that he was denied his constitutional right to effective assistance of trial and appellate counsel ("Trial Counsel" and "Appellate Counsel" respectively). Finding that he has failed to establish ineffective assistance of Trial Counsel and that he has waived the issue with respect to Appellate Counsel, we affirm.
The facts as summarized by another panel of this Court on Winbush's direct appeal are as follows:
Winbush v. State, 776 N.E.2d 1219, 1221 (Ind. Ct. App. 2002), trans. denied (2003).
The State charged Winbush and Russell with class A felony possession of cocaine with intent to deal and class B felony dealing in cocaine. The two were tried jointly but with separate counsel. Neither testified during trial, and the jury found both men guilty as charged. Both filed direct appeals, and the same attorney was appointed to represent each of them. In that appeal, they raised joint claims concerning the admission of certain evidence and distinct claims regarding sentencing. Another panel of this Court affirmed their convictions and sentences.
A decade later, Winbush filed a petition for postconviction relief, followed by an amended petition, claiming that he received ineffective assistance of both trial and appellate counsel. At the postconviction hearing, Russell, Rollins, and Rollins's son testified on Winbush's behalf. Appellate Counsel also testified, but Winbush did not secure testimony, in person or otherwise, from Trial Counsel. The postconviction court issued findings of fact and conclusions of law denying Winbush's petition. Winbush now appeals. Additional facts will be provided as necessary.
Winbush contends that the postconviction court erred in denying his petition for postconviction relief. The petitioner in a postconviction proceeding "bears the burden of establishing grounds for relief by a preponderance of the evidence." Ind. Postconviction Rule 1(5); Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013). When issuing its decision to grant or deny relief, the postconviction court must make findings of fact and conclusions of law. Ind. Postconviction Rule 1(6). A petitioner who appeals the denial of his postconviction petition faces a rigorous standard of review. Massey v. State, 955 N.E.2d 247, 253 (Ind. 2011). In conducting our review, we neither reweigh evidence nor judge witness credibility; rather, we consider only the evidence and reasonable inferences most favorable to the judgment. Id. "A post-conviction court's findings and judgment will be reversed only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made." Passwater, 989 N.E.2d at 770 (citation and quotation marks omitted). In other words, if a postconviction petitioner was denied relief in the proceedings below, he must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite the one reached by the postconviction court. Massey, 955 N.E.2d at 253.
Winbush maintains that he was denied his constitutional right to effective assistance of trial counsel. To prevail on an ineffective assistance claim, he must satisfy two components; he must demonstrate both deficient performance and prejudice resulting from it. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance is "representation [that] fell below an objective standard of reasonableness, [where] counsel made errors so serious that counsel was not functioning as `counsel' guaranteed by the Sixth Amendment." Passwater, 989 N.E.2d at 770. We assess counsel's performance based on facts that are known at the time and not through hindsight. Shanabarger v. State, 846 N.E.2d 702, 709 (Ind. Ct. App. 2006), trans. denied. Evidence of isolated poor strategy, inexperience, or bad tactics will not support an ineffective assistance claim; instead, we evaluate counsel's performance as a whole. Flanders v. State, 955 N.E.2d 732, 739 (Ind. Ct. App. 2011), trans. denied (2012). "[C]ounsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption." Ritchie v. State, 875 N.E.2d 706, 714 (Ind. 2007). "Strickland does not guarantee perfect representation, only a reasonably competent attorney." Hinesley v. State, 999 N.E.2d 975, 983 (Ind. Ct. App. 2013) (citation omitted), trans. denied (2014).
Prejudice occurs when a reasonable probability exists that, but for counsel's errors, the result of the proceeding would have been different. Passwater, 989 N.E.2d at 770. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Mitchell v. State, 946 N.E.2d 640, 643 (Ind. Ct. App. 2011), trans. denied. "Although the performance prong and the prejudice prong are separate inquiries, failure to satisfy either prong will cause the claim to fail." Baer v. State, 942 N.E.2d 80, 91 (Ind. 2011).
With respect to Trial Counsel's performance, the postconviction court issued extensive findings of fact and conclusions of law, which read in pertinent part,
Appellant's App. at 12-17 (internal citations omitted).
As noted in Finding 19, Winbush argued at the hearing numerous allegations that were not addressed in his amended postconviction petition. We agree with the postconviction court that those allegations are waived. Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001). Thus, we limit our discussion to the issues raised in the amended postconviction petition: (1) Trial Counsel's performance concerning joinder/severance; and (2) whether Trial Counsel improperly vouched for certain State witnesses.
Although the record is unclear concerning the mechanism by which Winbush's and Russell's causes were joined for trial, Winbush claims that the two causes should not have been tried together and that Trial Counsel was therefore ineffective in failing to object or to file a motion for severance. To prevail on a claim of ineffectiveness based on counsel's failure to seek separate trials, the petitioner must demonstrate that a motion for separate trials would have been granted. Roche v. State, 690 N.E.2d 1115, 1122 (Ind. 1997).
Two or more defendants can be joined in the same indictment or information where, as here, "each defendant is charged with each offense included." Ind. Code § 35-34-1-9(b)(1). Whenever two or more defendants have been joined for trial in the same information and one or more of the defendants moves for a separate trial, "the court shall order a separate trial of defendants whenever the court determines that a separate trial is necessary to protect a defendant's right to a speedy trial or is appropriate to promote a fair determination of the guilt or innocence of a defendant." Ind. Code § 35-34-1-11(b).
Here, Winbush and Russell not only were charged with each offense included in the information, but they also acted in concert, as part of a common plan, and were so closely connected that the overlap in evidence and witnesses was vast. Moreover, Winbush did not present evidence that he and Russell had "mutually antagonistic defenses." See Williams v. State, 706 N.E.2d 149, 156 (Ind. 1999) (finding no ineffective assistance of trial counsel for failing to renew motion for severance after pretrial denial of motion and no specific factual allegations to put trial court on notice of any mutually antagonistic defenses). Instead, both defendants sought to defend by attacking the credibility of the CI, the owner of the crack house, and other civilian witnesses. Even to the extent that a particular witness's testimony might have implicated one defendant over the other, a defendant is not entitled to a separate trial merely because a codefendant implicates that defendant. Id. at 157. As stated, here, neither defendant elected to testify during trial. To the extent that Winbush now claims that Russell would have testified on his behalf had the causes been severed, we find no evidence to support this claim other than Russell's statement (made over a decade later, after he had served his sentence) that it was he, not Winbush, who sold the cocaine. The record is devoid of evidence indicating that Russell would have implicated himself at a juncture in which such testimony could have been used against him, even in a separate trial.
Winbush himself testified at the postconviction hearing that Trial Counsel had consulted with Russell's counsel on the issue of severance and thought it best to proceed jointly. By not presenting any testimony from Trial Counsel, either in person or through deposition or affidavit, Winbush simply did not overcome the presumption that Trial Counsel acted strategically in not seeking severance. Even if Trial Counsel had requested severance, the trial court would have acted within its discretion in denying it. Based on the foregoing, we conclude that Winbush has failed to establish clear error in the postconviction court's determination that Trial Counsel did not perform deficiently by not requesting severance.
Winbush also submits that Trial Counsel rendered ineffective assistance by improperly vouching for some of the State's witnesses. Indiana Evidence Rule 704(b) states, "Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions." The rationale behind this rule is that vouching invades the province of the jurors to determine the weight to be assigned to a witness's testimony. Palilonis v. State, 970 N.E.2d 713, 729 (Ind. Ct. App. 2012), trans. denied. The Indiana Rules of Professional Conduct likewise prohibit vouching by counsel, stating in pertinent part,
A lawyer shall not:
Ind. Professional Conduct Rule 3.4.
Here, Winbush cites as instances of alleged vouching Trial Counsel's statements complimenting the police for (1) doing excellent work; and (2) knowing the law. The first occurred during the State's direct examination of Anderson Police Detective Kevin Earley, as the detective was describing his experience with the CI and the manner in which Winbush and Russell had come to his attention, that is, from "another source" describing "two male blacks." Trial Tr. at 273. Trial Counsel immediately objected on hearsay grounds, and the State responded that the information was offered not for the truth of the matter asserted but to show how the investigation proceeded. When the trial court overruled the objection, Trial Counsel added, "Judge, I'll stipulate that Mr. Earley and his colleagues do excellent police work." Id.
While Winbush characterizes the statement as vouching for police in general and Detective Earley specifically, we do not read the statement as such, especially when placed in context. The next few pages of the record show that Trial Counsel was trying to prevent the admission of certain evidence of prior bad acts in the form of other instances of dealing involving the two defendants. Ind. Evidence Rule 404(b). When the State characterized its line of questioning as merely providing the background for the investigation and its use of the CI, Trial Counsel attempted to cut off the questioning by stipulating that police do good investigatory work. The probable prejudicial effect of Trial Counsel's stipulation is summed up by the State's response, "That's not the point, Judge." Trial Tr. at 273. We agree with the State that the stipulation bore little relevance, whether in the limited context of interrupting the State's line of questioning or the larger context of Trial Counsel's defense strategy. Neither the quality of police work nor the credibility of Detective Earley was attacked as part of any defense strategy. Instead, the defense attacked the credibility of the civilian witnesses, including the CI and crack house owner Rollins. To the extent that Trial Counsel's statement about the quality of police work could have arguably amounted to impermissible vouching, it would not prejudice Winbush's defense.
Trial Counsel made his second alleged vouching statement during his cross-examination of Detective Earley. The general line of questioning concerned the Drug Task Force's use of informants and whether they are paid for their work or whether they become informants to "work[] off charges." Id. at 339. Trial Counsel then attempted to narrow his questioning to elicit testimony about the CI used in this case.
Id. at 341-42 (emphasis added).
Placed in context, the italicized statement does not amount to vouching for the detective's knowledge of the law. Instead, as best we can discern, it was an attempt by Trial Counsel to cast doubt on the CI's credibility by emphasizing the seriousness of the charges to which law enforcement could have subjected her had she not cooperated with the controlled buy. As previously noted, Winbush's failure to secure Trial Counsel's in-person or deposition testimony has created an evidentiary vacuum concerning Counsel's strategy in making the comment. Nonetheless, because it is not vouching, Trial Counsel cannot be found to have performed deficiently on that basis. In sum, Winbush has failed to establish clear error in the postconviction court's determination that Trial Counsel did not render ineffective assistance based on his alleged vouching statements.
Winbush also maintains that he was denied his constitutional right to effective assistance of appellate counsel. In his appellant's brief, he claims that Appellate Counsel failed to adequately consult with him concerning issue selection, failed to discover perjured testimony, and failed to raise ineffective assistance of trial counsel. However, Winbush failed to raise any of the aforementioned claims in his amended petition for postconviction relief. As such, they are waived. See Allen v. State, 749 N.E.2d at 1171 (issues not raised in petition for postconviction relief may not be raised in the postconviction appeal).
In his amended postconviction petition, Winbush raised only one claim concerning Appellate Counsel's performance, namely, that Appellate Counsel rendered ineffective assistance in the form of a conflict of interest based on his joint representation of Winbush and codefendant Russell on direct appeal. Curiously, Winbush makes only a fleeting reference to the conflict-of-interest issue in his appellant's brief, and as such, we agree with the State that he seemingly "has abandoned that claim." Appellee's Br. at 24 n.3. Because he has failed to develop a cogent argument concerning his conflict-of-interest claim, he has waived it pursuant to Indiana Appellate Rule 46(A)(8).
In sum, Winbush has failed to establish clear error in the postconviction court's determination that Trial Counsel did not perform deficiently and has waived his claims concerning Appellate Counsel's performance. Accordingly, we affirm the postconviction court's denial of his amended petition for postconviction relief.
Affirmed.
RILEY, J., and MATHIAS, J., concur.
