Opinion
23A-PC-2674
10-22-2024
Daniel Kriete, Appellant-Petitioner v. State of Indiana, Appellee-Respondent
Appellant Pro Se Daniel Kriete Carlisle, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Justin F. Roebel 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Madison Circuit Court The Honorable Andrew R. Hopper, Judge Trial Court Cause No. 48C03-1701-PC-5
Appellant Pro Se Daniel Kriete Carlisle, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana
Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
TAVITAS, JUDGE
Case Summary
[¶1] In 2017, Daniel Kriete was convicted of three counts of burglary, Level 4 felonies, and five counts of theft, Class A misdemeanors. The trial court sentenced Kriete to thirty-six years in the Department of Correction ("DOC"). Kriete appealed and argued that the trial court erred by denying Kriete's pretrial motion to sever the charges. This Court disagreed and affirmed Kriete's convictions, and our Supreme Court denied Kriete's petition to transfer. Kriete then filed a pro se petition for post-conviction relief, which the post-conviction court ("PC Court") denied. Kriete appeals the denial of his petition for postconviction relief and claims that: (1) the prosecutor committed misconduct, and (2) Kriete was denied the effective assistance of trial counsel. We disagree and, accordingly, affirm.
Issues
[¶2] Kriete presents two issues for our review, which we restate as:
I. Whether the prosecutor committed misconduct.
II. Whether Kriete was denied the effective assistance of trial counsel.
Facts
[¶3] In our memorandum decision in Kriete's direct appeal, we set forth the facts underlying his convictions as follows:
In October 2014, Marianne Abney ("Abney") left her residence in Madison County, Indiana for a vacation. When she returned on October 15, 2014, Abney noticed that the door between her garage and utility room was broken. After looking around inside, Abney noted that "all of [her] jewelry had been taken." Tr. p. 351. She reported the incident to the police.
Sixteen days later, Robin Pickett ("Pickett") returned home from work with her daughter on October 31, 2014 around 4:00 p.m. and noticed that her back door was "wide open." Tr. p. 454. After entering her home, Pickett discovered that her television, three laptops, and a couple of HDMI cables were missing. Pickett immediately called the police to report the incident.
Six days after Pickett's discovery, on November 6, 2014, Kay Krall ("Krall") was on vacation with her husband. That same day, Krall's neighbor, James Davis ("Davis") was outside checking his mail and noticed a suspicious vehicle parked in Kra[ll]'s driveway. Davis approached the car and asked the two men inside who they were and why they were there. The driver told Davis that they were there to do work for Tim Johnson. Davis responded by telling the men that no one named Tim Johnson lived in the neighborhood and again inquired why the men were in Krall's driveway. Without answering Davis's question, the men sped away, nearly running over Davis's toes. Davis was able to write down the license plate number and called Krall to let her know what had occurred.
Krall then contacted her son-in-law, Peter Hopkins ("Hopkins"), and asked him to go to her house to look around. Hopkins observed that the back door was half opened and "just kind of swinging." Tr. p. 289. Hopkins told Davis that someone had broken into the house, and Davis called the police. Meanwhile, next-door neighbor Penny Wilson ("Wilson") watched a man run through her backyard carrying a bag. Wilson then saw the man jump into the backseat of a car that sped away. Officers secured the home because the Kralls were still on vacation, but
after Krall returned, she reported that jewelry and a coin collection were missing.
Later that same day, Beth Manis ("Manis") returned home from work to find her back door kicked in and CDs and DVDs scattered all over the living room floor. Manis later discovered that CDs, DVDs, several pieces of jewelry, an iPad, a game system, and some games were missing. She notified the police of the incident.
Five days later, on November 11, 2014, Timothy Lee, DVM ("Dr. Lee") returned home from work around 4:00 p.m. to let his dog outside and was surprised to find that his front door was unlocked. After Dr. Lee went inside the house, he found that his bedroom had been ransacked and discovered that several pieces of jewelry, a watch, his wallet, and numerous personal items were missing.
The Anderson Police Department assigned Detective Trent Chamberlain ("Detective Chamberlain") to investigate all of these Fall [] 2014 burglaries. The first report he received was from the November 6, 2014 incident at Krall's home. He then compiled a list of other burglaries in the area to characterize the method of entry, method of operation, and types of items taken. Detective Chamberlain discovered that there were five burglaries in the Anderson, Indiana area that were recent, involved stolen jewelry and electronics, and involved a door being forced or pried open.
Based on the description of the vehicle and the license plate number provided to police by Davis, Detective Chamberlain discovered that the car was registered to the father of Michael Showecker ("Showecker"). Officers on the Madison County Drug Task Force were familiar with Showecker and identified him as a heroin addict who had been seen driving around a vehicle matching the description of the vehicle that Davis saw at Krall's residence. Detective Chamberlain received further information that the same vehicle was parked behind a local
motel and that Showecker was with another man named Michael Taylor ("Taylor"). After receiving this tip, Detective Chamberlain verified that the plate number matched the one from the report and checked with the front desk attendant to determine if a room was registered in either one of their names. He discovered that a room was registered to Michael Taylor.
Detective Chamberlain and Officer William Richardson ("Officer Richardson") then knocked on the door of Taylor's room and found Showecker and Taylor inside along with several pieces of Krall's jewelry. After searching the car parked outside, the officers also found more jewelry that belonged to Krall, as well as Manis's iPad. Showecker and Taylor were then arrested.
Showecker and Taylor cooperated with the police and indicated that they were helping appellant Kriete burglarize homes in the area. They told police that they would sit in the car while Kriete would break in and steal valuables. They also admitted that they were at Krall's residence on November 6, 2014 to help Kriete, that they drove off after they were questioned by Davis, and that they picked up Kriete "down the road." Tr. p. 498. Further, Taylor admitted to pawning several items at a cash for gold shop. The three men split the proceeds, but Kriete took the largest percentage of profit.
The police later discovered that Kriete was staying at an abandoned house and renting a storage unit in Madison County. While executing a search warrant, officers located several stolen pieces of jewelry in the house and items belonging to Abney, Manis, and Dr. Lee in the storage unit. When Kriete was arrested, he was wearing Dr. Lee's watch and carrying his missing wallet.Kriete v. State, No. 48A04-1508-CR-1152, slip op. at 2-6 (Ind.Ct.App. May 27, 2016) (mem.) (footnotes omitted), trans. denied. As a result, the State charged Kriete with five counts of burglary, Level 4 felonies, and five counts of theft, Class A misdemeanors. Kriete filed a pretrial motion to sever the charges, which the trial court denied. The jury convicted Kriete on three of the burglary charges and all of the theft charges, and the trial court sentenced Kriete to an aggregate sentence of thirty-six years in the DOC.
[¶4] On appeal, Kriete claimed that the trial court erred by denying the motion to sever the charges. We concluded that, by failing to renew his motion for severance before or at the close of the evidence, Kriete waived the severance issue. We also concluded that, waiver notwithstanding, the trial court did not abuse its discretion by denying the motion to sever. Accordingly, we affirmed Kriete's convictions. Id. at 9.
[¶5] On January 31, 2017, Kriete filed a pro se petition for post-conviction relief, which he subsequently amended on March 17, 2022. In his amended petition, Kriete raised several claims of ineffective assistance of trial counsel, including: (1) failure to investigate; (2) failure to object to certain evidence; (3) failure to impeach witnesses; (4) failure to raise a defense; (5) failure to present a theory of innocence; (6) failure to argue prosecutorial misconduct; (7) failure to object to the prosecutor's use of allegedly perjured testimony; (8) failing to argue that Kriete was improperly sentenced more harshly than his co-defendants; (9) failure to object to violations of a separation of witness order; (10) failure to request the severance of the charges; and (11) failure to timely engage the services of an expert investigator. The post-conviction court held evidentiary hearings on Kriete's petition on March 9 and 16, 2023. On October 23, 2023, the post-conviction court entered findings of fact and conclusions of law denying Kriete's petition. This appeal ensued.
Discussion and Decision
Post-Conviction Standard of Review
[¶6] Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence. Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019); Ind. Post-Conviction Rule 1(1)(b). "The scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal." Gibson, 133 N.E.3d at 681. "Issues available on direct appeal but not raised are waived, while issues litigated adversely to the defendant are res judicata." Id. The petitioner bears the burden of establishing his claims by a preponderance of the evidence. Id.; P.-C.R. 1(5).
[¶7] When, as here, the petitioner "appeals from a negative judgment denying postconviction 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.'" Gibson, 133 N.E.3d at 681 (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000)). When reviewing the post-conviction court's order denying relief, we will "not defer to the post-conviction court's legal conclusions," and the "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." Bobadilla v. State, 117 N.E.3d 1272, 1279 (Ind. 2019). When a petitioner "fails to meet this 'rigorous standard of review,' we will affirm the post-conviction court's denial of relief." Gibson, 133 N.E.3d at 681 (quoting DeWitt v. State, 755 N.E.2d 167, 169-70 (Ind. 2001)).
Kriete has proceeded pro se before the post-conviction court and on appeal. We hold pro se litigants to the same standard as we do licensed attorneys. Stark v. State, 204 N.E.3d 957, 963 (Ind.Ct.App. 2023) (citing Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014)). 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. (quoting Picket Fence Prop. Co. v. Davis, 109 N.E.3d 1021, 1029 (Ind.Ct.App. 2018)). On appeal, "[w]e will not become an advocate for a party, or address arguments that are inappropriate or too poorly developed or expressed to be understood." Lowrance v. State, 64 N.E.3d 935, 938 (Ind.Ct.App. 2016) (citation and internal quotation marks omitted), trans. denied. Although some of Kriete's arguments are difficult to parse, we have endeavored to address them to the extent that they can be discerned.
I. Prosecutorial Misconduct
[¶8] Kriete first contends that the post-conviction court erred by rejecting his claim of prosecutorial misconduct. Kriete claims that the prosecutor at his trial committed misconduct by using an "evidentiary harpoon," failing to establish the proper chain of custody for certain exhibits, suborned perjury, and improperly vouched for witness testimony. Kriete, presents these arguments as freestanding claims of error. Yet all of these claims were known and available on direct appeal. They are, therefore, waived for purposes of post-conviction review. Gibson, 133 N.E.3d at 681.
Kriete also faults his trial counsel for failing to object to several instances of alleged prosecutorial misconduct, which we address below.
II. Ineffective Assistance of Trial Counsel
[¶9] Kriete also claims that the post-conviction court erred by rejecting his claim of ineffective assistance of trial counsel. To prevail on his ineffective assistance of counsel claims, a defendant must show that: (1) his counsel's performance fell short of prevailing professional norms; and (2) his counsel's deficient performance prejudiced his defense. Gibson, 133 N.E.3d at 682 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984))).
[¶10] A showing of deficient performance "requires proof that legal representation lacked 'an objective standard of reasonableness,' effectively depriving the defendant of his Sixth Amendment right to counsel." Id. (quoting Overstreet v. State, 877 N.E.2d 144, 152 (Ind. 2007)). We strongly presume that counsel exercised "reasonable professional judgment" and "rendered adequate legal assistance." Id. Defense counsel enjoys "considerable discretion" in developing legal strategies for a client. Id. This "discretion demands deferential judicial review." Id. Finally, counsel's "[i]solated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective." Id.
[¶11] "To demonstrate prejudice, the defendant must show a reasonable probability that, but for counsel's errors, the proceedings below would have resulted in a different outcome." Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Failure to satisfy either prong will cause the claim to fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.
[¶12] In addition to presenting freestanding claims of prosecutorial misconduct, Kriete claims that his trial counsel was ineffective for failing to object or otherwise respond to the alleged misconduct when it occurred. In general, upon the review of a claim of prosecutorial misconduct:
we must determine whether the prosecutor: (1) engaged in misconduct that, (2) under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been otherwise subjected. Whether a prosecutor's argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct. We measure the weight of the peril by the probable persuasive effect of the misconduct on the jury rather than the degree of impropriety of the conduct.Combs v. State, 150 N.E.3d 266, 279 (Ind.Ct.App. 2020), summarily aff'd in relevant part, 168 N.E.3d 985 (Ind. 2021) (citations and internal quotation marks omitted).
A. Failure to object to State's use of an "evidentiary harpoon."
[¶13] Kriete first claims that his trial counsel was ineffective for failing to object to the prosecutor committing misconduct by using an "evidentiary harpoon." "An evidentiary harpoon occurs when the State deliberately places inadmissible evidence before the jury to prejudice the jurors against the defendant." Turner v. State, 216 N.E.3d 1179, 1184 (Ind.Ct.App. 2023) (citing Perez v. State, 728 N.E.2d 234, 237 (Ind.Ct.App. 2000), trans. denied).
[¶14] The alleged evidentiary harpoon in Kriete's trial occurred when the prosecutor showed the jury evidence not identified by the victims as having been stolen from them. In bags seized by law enforcement, items identified by the victims as belonging to them were mixed with other items not identified by the victims. The State called police officers to testify regarding the bags of jewelry they had seized from Kriete, and the officers explained which items in the bags were claimed by the victims; however, some items were not identified as belonging to the victims. A victim also identified her property out of the seized items. Kriete complains that the prosecutor improperly introduced evidence of uncharged misconduct. According to Kriete, because the bags contained items that the victims identified as having been stolen from them, the unidentified items must have been stolen from other victims in uncharged crimes.
[¶15] Kriete claims that this is similar to Rohlfing v. State, 230 Ind. 236, 102 N.E.2d 199 (1951). In that case, the defendant was charged with receiving stolen goods. In his first appeal, our Supreme Court held that the defendant's motion to quash a search warrant should have been granted and, therefore, reversed and remanded for retrial. Rohlfing v. State, 227 Ind. 619, 88 N.E.2d 148 (1949). On retrial on remand, while the trial court read preliminary instructions to the jury, "the prosecuting attorneys brought into the courtroom, before the jury, several rifles and shotguns, a pistol, two radios and some fishing tackle. With the exception of one gun, these were the articles which were recovered by virtue of the invalid search warrant." Rohlfing, 230 Ind. at 239, 102 N.E.2d at 200. The trial court sustained the defendant's objection to this and admonished the jury not to consider the items during their deliberations. Incredibly, at the conclusion of the State's opening statement, the prosecuting attorneys again brought the illegally-seized items into the courtroom and placed them on the table before the jury. The trial court sustained the objection and again admonished the jury not to consider the items. During the testimony of one of the State's witnesses, the prosecuting attorney again showed the jury a shotgun, which was one of the items illegally seized. The trial court yet again sustained the defendant's objection and again admonished the jury. The owner of the stolen property was also permitted to testify that, at the police station with the police captain, sheriff, and a police officer, he had seen the items stolen from his store.
[¶16] On appeal, our Supreme Court was displeased with the behavior of the prosecuting attorneys. After noting that the items were seized by way of an improper search warrant, the Court wrote:
The articles were not offered in evidence. The state did not offer to exhibit them to the jury. It offered no direct evidence that the articles were ever in the possession of the defendant or that they were ever seen on or recovered from his premises. But the mere fact that they were displayed before the jury, particularly when considered in connection with the nature and sequence of the testimony elicited from [the victim], was obviously calculated to persuade the jury that such was the fact. The determined efforts of the attorneys for the state to keep these articles under the eye and in the mind of the jury, with consequent efforts on the part of the appellant to have them removed, would of itself tend to impress the jury that here was evidence damaging to the appellant....
We do not suggest that such is the case, but if counsel for the state, knowing that these articles should not be displayed to the jury, made repeated efforts to lay them before the jury for the
purpose of compelling the appellant to make repeated objections, that in itself would be prejudicial error.Id. at 240-42, 102 N.E.2d at 201; see also White v. State, 272 N.E.2d 312, 319 (1971) (holding that State used improper evidentiary harpoon by calling as a witness a police officer who testified that he recognized defendant because the defendant had been brought in on an unrelated charge of armed robbery).
[¶17] The acts of the prosecutor here do not compare with the misconduct of the prosecuting attorneys in Rohlfinger or White. Here, the prosecutor merely attempted to have one of the victims identify her property out of the seized items. The fact that the bags included items that none of the victims claimed does not mean that that these items were evidence of uncharged misconduct or that the prosecutor intentionally placed inadmissible evidence before the jury merely to prejudice the jurors against Kriete. Indeed, the State argued that the other items belonged to Kriete and that, by intermingling his items with the stolen items, Kriete showed his intent to maintain dominion and control over the items. See Trial Tr. Vol. II p. 326. Under these circumstances, we cannot say that Kriete's trial counsel performed deficiently by not moving to strike or request an admonishment to the jury on the basis of the improper use of an "evidentiary harpoon." Thus, the PC Court's finding on this issue was not clearly erroneous.
The trial transcript used sequential page numbers for all of the volumes. Our citation to the transcript, therefore, uses the page number of the transcript as a whole, not the page of the individual volumes in the PDF format.
B. Failure to object to allegedly perjured testimony.
[¶18] Kriete next claims that his trial counsel was ineffective for failing to object to the prosecutor's misconduct of using allegedly perjured testimony. In his postconviction petition, Kriete alleged that inconsistencies between Showecker's testimony and Taylor's testimony regarding how the three were supposed to split the proceeds amounted to perjury. Kriete, however, presented no evidence to support these claims at the evidentiary hearing on his post-conviction petition. Thus, the post-conviction court properly concluded that Kriete had not met his burden of proof regarding these claims.
On appeal, Kriete refers to several other instances of alleged perjury by Taylor and Showecker that were not presented in his post-conviction petition. These claims are, therefore, waived. See Jones v. State, 151 N.E.3d 790, 805 (Ind.Ct.App. 2020) (quoting Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001)), trans. denied; see also P.-C.R. 1(8) ("All grounds for relief available to a petitioner under this rule must be raised in his original petition.").
C. Failure to inform the jury of co-defendant's plea agreements.
[¶19] Kriete next claims that his trial counsel was ineffective for failing to inform the jury regarding the plea agreements the State entered into with Kriete's codefendants Taylor and Showecker. The plea agreements, however, were disclosed to the defense, and they were admitted into evidence as exhibits by Kriete's defense counsel. See Trial Ex. Vol. I, Defendant's Exs. B, E. And Kriete's counsel impeached both Taylor and Showecker with their plea agreements. Trial Tr. Vol. III pp. 512-15, 579-81. Kriete's claim that his trial counsel was ineffective for failing to object because the prosecutor did not impeach the State's own witnesses is meritless.
D. Failure to object to State's opening, closing, and sentencing statements.
[¶20] Kriete next claims that his trial counsel was ineffective for failing to object to various statements made by the prosecutor, specifically the State's opening statement, the State's closing statement, and the State's sentencing statement.
1. State's Opening Statement
[¶21] With regard to the prosecutor's opening Statement, Kriete argues that his trial counsel should have objected when the prosecutor referred to Kriete as a "serial burglar" and asked the jury to "do the right thing" by finding Kriete guilty. Trial Tr. Vol. II p. 262. The State was permitted to characterize Kriete as a serial burglar based on the evidence the State intended to present-that Kriete had participated in a series of burglaries. See Cooper v. State, 854 N.E.2d 831, 837 (Ind. 2006) (holding that prosecutor's remarks that defendant was "a back shooter and a woman beater" were fair commentary based on the facts introduced at trial); Brennan v. State, 639 N.E.2d 649, 652 (Ind. 1994) (finding no error in prosecutor referring to defendant as a "cold-blooded killer" because the prosecutor did not try to convey to the jury that he knew something that was not presented in evidence nor did he make any false statements concerning the evidence presented). Thus, any objection to this statement would have been meritless.
[¶22] With regard to the prosecutor's statement that the jury should "do the right thing," we also conclude that any objection would have been unsuccessful. To be sure, "[i]t is misconduct for a prosecutor to request a jury to convict a defendant for any reason other than guilt." Impson v. State, 721 N.E.2d 1275, 1283 (Ind.Ct.App. 2000) (citing Maldonado v. State, 265 Ind. 492, 500, 355 N.E.2d 843, 849 (1976)). In Impson, the prosecutor asked the jury to "end this month of Domestic [Violence] Awareness [and] do the right thing." Id. (record citation omitted). On appeal, we held that the prosecutor's statement "could refer to the importance of the jury to 'do the right thing' by considering all the evidence," which "would be a proper statement." Id. "Conversely, the statement could refer to the importance of the jury to 'do the right thing' by capping off 'Domestic Violence Awareness Month' with a conviction," which "would be an improper statement." Id. Either way, however, we concluded that the statement did not place the defendant in a position of "grave peril" and affirmed the trial court. Id.
[¶23] Here, there is no such confusion. The prosecutor's statement clearly referred to the importance of the jury to "do the right thing" by considering all the evidence, as shown by viewing the statement in context:
But I think after you consider all of the evidence[,] the circumstantial evidence, the direct evidence, and the irrefutable evidence, and the identification of this property that you will conclude beyond a reasonable doubt . . . [t]hat this is a serial burglar in our community and you will do the right thing and bring home verdicts against him on all the five (5) separate victims.Trial Tr. Vol. II p. 262. Because the prosecutor was asking the jury to base its verdict on the evidence, any objection by Kriete's trial counsel to this statement would have been unsuccessful.
2. State's Closing Statement
[¶24] Kriete also claims that his trial counsel was ineffective for failing to object to allegedly vouching statements the prosecutor made during the State's closing argument. He specifically refers to the prosecutor's statement acknowledging that Taylor and Showecker had a history of criminal conduct and dishonesty but arguing that they were not lying as witnesses:
[Y]ou have witnesses who may have bad characters, they may have drug addictions, but they're not lying about this. Why should they. And both of them testified that they started talking to the police before they [had] even been arraigned. Before they even had court cases. They were talking about the situation and that [Kriete] was involved. Why [do] you suppose they picked his name at the very beginning of this as [opposed] to somebody else. So, I don't know what they're lying. I mean. They might be lying about a lot of things, but logically they are not lying about [Kriete] being involved in this. If you stop and think about it.Trial Tr. Vol. III p. 705.
[¶25] Nothing about the prosecutor's comments would have required the trial court to sustain an objection had Kriete's trial counsel made one. Although "a prosecutor may not personally vouch for a witness," a prosecutor "may comment on the credibility of the witnesses as long as the assertions are based on reasons which arise from the evidence." Ryan v. State, 9 N.E.3d 663, 671 (Ind. 2014) (citations omitted). Here, the prosecutor's statements were based on the evidence, and he did not vouch for the witnesses' credibility based on personal knowledge of the facts.
3. State's Sentencing Argument
[¶26] Kriete also claims that his trial counsel should have objected to the prosecutor's arguments during sentencing. Kriete, however, refers to no specific statements made by the prosecutor. Instead, he complains that his co-defendants received less severe sentences even though they were, according to Kriete, more culpable than him. To the extent that Kriete's argument is a free-standing claim of sentencing error, there is nothing that suggests it was unknown or unavailable on direct appeal; it is, therefore, waived. See Gibson, 133 N.E.3d at 681.
[¶27] To the extent that Kriete's claim is based on his counsel's failure to object to his sentence, this argument is misplaced. As noted by the post-conviction court, even if Kriete's sentencing claim had merit, his trial counsel was not required to object to preserve a claim of sentencing error. See Oberhansley v. State, 208 N.E.3d 1261, 1269 (Ind. 2023) ("[c]ounsel need not object to preserve a sentencing error for review."). Thus, Kriete's claim of ineffective assistance of trial counsel for failing to object to his sentence is without merit, as this claim could have been presented on direct appeal without an objection. Thus, the PC Court's finding on this issue is not clearly erroneous.
Since this claim was known and available to Kriete on direct appeal, it is waived for purposes of postconviction review. Gibson, 133 N.E.3d at 681. Kriete makes no argument that he received the ineffective assistance of appellate counsel.
Conclusion
[¶28] Kriete's free-standing claims of prosecutorial misconduct were known and available on direct appeal and are, therefore, waived for purposes of postconviction review. Kriete's claims of ineffective assistance of trial counsel are without merit, and the PC Court's denial of Kriete's petition for post-conviction relief is not clearly erroneous. Accordingly, we affirm the post-conviction court's denial of Kriete's petition for post-conviction relief.
[¶29] Affirmed.
Crone, J., and Bradford, J., concur.