Michael Kopp v. State of Indiana (mem. dec.), 49A02-1701-PC-146

Background

Michael Kopp, step‑father of victim L.P., was convicted of two counts of Class A child molesting (timeframes: May–Aug 1998 and Sept 1998–Jan 1999) and one Class D child seduction; aggregate sentence 60 years.
On direct appeal Kopp argued the continuing crime doctrine and double jeopardy (actual evidence test); this court affirmed, finding separate evidence supported each charged timeframe.
Kopp filed a post‑conviction petition alleging appellate counsel (Taffanee Keys) was ineffective for (a) advancing a continuing‑crime argument instead of a sufficiency challenge to Count II, and (b) failing to argue the trial court erred denying his directed verdict motion concerning his age at the time of the offenses.
The post‑conviction court held an evidentiary hearing, denied relief, and Kopp (pro se) appealed the denial.
The Court of Appeals reviewed ineffective‑assistance‑of‑appellate‑counsel claims under the two‑part Strickland‑style standard applicable in Indiana, giving strong deference to counsel’s strategic choices and requiring that omitted issues be significant, obvious, and clearly stronger than those raised.
The court concluded Kopp failed to show prejudice: a sufficiency claim would not have succeeded given the victim’s testimony, and the directed‑verdict issue was not clearly stronger than the issues actually raised.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellate counsel was ineffective for arguing continuing‑crime rather than insufficiency for Count II	Kopp: counsel should have argued the State lacked sufficient evidence for the Sept 1998–Jan 1999 offense	Counsel raised continuing‑crime and double jeopardy on appeal instead	Held: Not ineffective — victim’s testimony supported separate findings for each timeframe; insufficiency would not have prevailed
Whether appellate counsel was ineffective for failing to argue trial court abused denial of directed verdict (age element)	Kopp: no record proof he was over 21 at the time; directed verdict should have been raised on appeal	Counsel did not raise the directed‑verdict claim on appeal	Held: Not ineffective — record contained indicia (marriage date, employment) and Kopp later conceded he was over 21; claim not clearly stronger than raised issues
Whether post‑conviction relief standard was met to overturn findings	Kopp: post‑conviction court erred in denying relief	State: post‑conviction findings supported; Kopp failed to show counsel deficient or prejudice	Held: Denial affirmed; Kopp did not overcome strong presumption of adequate appellate advocacy
Whether counsel’s strategic choices warrant re‑examination under Bieghler standard	Kopp: counsel’s omissions require relief because different issues were better	State: appellate strategy is entitled to deference; relief requires confidence court would have ruled differently	Held: No relief — Bieghler standard not met; appellate court would not be confident a different outcome would have occurred

Key Cases Cited

Fisher v. State, 810 N.E.2d 674 (Ind. 2004) (standard for ineffective assistance of appellate counsel)
Bieghler v. State, 690 N.E.2d 188 (Ind. 1998) (heightened deference to appellate counsel; relief only if court confident result would differ)
Stowers v. State, 657 N.E.2d 194 (Ind. Ct. App. 1995) (no ineffectiveness for declining to raise meritless claim)
Richardson v. State, 717 N.E.2d 32 (Ind. 1999) (actual evidence test for double jeopardy analysis)
Riehle v. State, 823 N.E.2d 287 (Ind. Ct. App. 2005) (continuing crime doctrine definition)
Ben‑Yisrayl v. State, 729 N.E.2d 102 (Ind. 2000) (standard of review for post‑conviction factual findings)
Davidson v. State, 763 N.E.2d 441 (Ind. 2002) (post‑conviction relief burden and scope)