Samuel L. Wait v. State of Indiana (mem. dec.), 20A03-1512-PC-2304

Background

In 2006, S.S., a seven-year-old, lived with Samuel Wait; over months Wait committed multiple acts of sexual abuse against her (digital and penile vaginal and anal penetration, forced oral sex, forced undressing and sexual contact); S.S. noted a distinctive tattoo on Wait’s penis.
Allegations were reported after S.S. told a friend’s mother; in 2007 Wait was charged with four counts of class A child molesting; he was later alleged to be an habitual offender and repeat sexual offender.
At a 2009 jury trial the court denied the State’s oral motion to amend dates in the charging information; the jury convicted Wait on all counts, and he admitted habitual-offender and repeat-sex-offender enhancements.
The trial court imposed four 40-year terms (three concurrent, one consecutive) plus a 30-year habitual-offender enhancement for an aggregate 110-year sentence; this was affirmed on direct appeal.
Wait sought post-conviction relief claiming ineffective assistance of trial, appellate, and post-conviction counsel (issues included failure to pursue an alibi, acceptance of enhancements, and failure to object to prosecutorial vouching). The post-conviction court denied relief and this appeal follows.

Issues

Issue	Plaintiff's Argument (Wait)	Defendant's Argument (State)	Held
Ineffective assistance of trial counsel — failure to pursue alibi	Trial counsel failed to pursue/prove an alibi after State’s proposed date amendment; this prejudiced defense	The trial court denied the amendment in writing; no prejudice from counsel’s actions	Denied — no deficient performance or prejudice shown
Ineffective assistance of trial counsel — admission of habitual/repeat offender status	Counsel should have insisted on jury determination; admissions were not voluntary/knowing	Court fully advised Wait; he knowingly, intelligently waived jury proof and admitted enhancements	Denied — waiver was knowing and voluntary
Ineffective assistance of trial counsel — failure to object to prosecutorial vouching	Counsel erred by not objecting to improper credibility vouching in closing, resulting in fundamental error	Although statements constituted improper vouching, the evidence against Wait was strong and any error was not fundamentally prejudicial	Denied — prosecutorial comments improper but not resulting in grave peril or fundamental error
Ineffective assistance of appellate and post-conviction counsel	Appellate counsel failed to raise amendment/vouching/sentencing issues; PCR counsel failed to present/add evidence and cross-examine effectively	Appellate counsel made strategic choices; the amendment issue lacked merit; vouching and sentencing issues were not clearly stronger; PCR counsel provided representation in a procedurally fair hearing	Denied — appellate strategy reasonable and no deficiency shown; no constitutional right to PCR counsel and representation was procedurally adequate

Key Cases Cited

Fisher v. State, 810 N.E.2d 674 (Ind. 2004) (post-conviction petitioner bears preponderance burden)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective assistance standard)
Hollowell v. State, 19 N.E.3d 263 (Ind. 2014) (standard for reviewing post-conviction ineffective-assistance claims)
Ben–Yisrayl v. State, 729 N.E.2d 102 (Ind. 2000) (reversal only for clear error in post-conviction findings)
Grinstead v. State, 845 N.E.2d 1027 (Ind. 2006) (reasonable-probability definition under Strickland)
Lainhart v. State, 916 N.E.2d 924 (Ind. Ct. App. 2009) (examples of improper prosecutorial vouching)
Brummett v. State, 10 N.E.3d 78 (Ind. Ct. App. 2014) (distinguishing permissible witness comment from improper vouching)
Taylor v. State, 717 N.E.2d 90 (Ind. 1999) (deference to appellate counsel’s strategic choices)
Bieghler v. State, 690 N.E.2d 188 (Ind. 1997) (issue-selection standard for appeals)
Hill v. State, 960 N.E.2d 141 (Ind. 2012) (no constitutional right to counsel in post-conviction proceedings)