MEMORANDUM DECISION
BRADFORD, Judge.
[1] Over the course of approximately eighteen or nineteen hours beginning on September 9, 2006, Appellant–Petitioner Jeffrey E. Akard brutally raped and battered A.A. while confining her in his Lafayette apartment. Following a three-day jury trial, Akard was convicted of two counts of Class A felony rape and Class A felony criminal deviate conduct, one count of Class B felony rape and Class B felony criminal deviate conduct, two counts of Class B felony criminal confinement, and two counts of Class C felony battery. The trial court imposed an aggregate ninety-three-year sentence. Akard's convictions were affirmed on direct appeal. This court modified Akard's sentence to an aggregate term of 118 years. The Indiana Supreme Court, however, subsequently modified Akard's sentence to an aggregate term of ninety-four years.
[2] Akard filed a petition for post-conviction relief (“PCR”) in January of 2011. On October 30, 2014, the post-conviction court issued an order denying Akard's petition. Akard then appealed, arguing that the post-conviction court erroneously found that he did not receive ineffective assistance of trial or appellate counsel. Concluding that the post-conviction court did not err in determining that Akard failed to prove that he suffered ineffective assistance from either his trial or appellate counsel, we affirm.
Facts and Procedural History[3] Our opinion in Akard's prior direct appeal, which was handed down on March 30, 2010, instructs us as to the underlying facts and procedural history leading to this post-conviction appeal:
In the early hours of September 9, 2006, A.A. was in Lafayette, Indiana, and met Akard as he was walking down the street. Because he was purportedly drunk, Akard asked A.A. to walk him home so that he would not be charged with public intoxication, and A.A. obliged. After a fifteen minute walk, the two arrived at Akard's house at approximately 2:15 a.m., and A.A. went into the house so that she could use the bathroom. Once inside, Akard used a key to lock the deadbolt. The two then sat down on the couch and started a conversation, which included A.A. telling Akard that she was currently homeless and without any money. The topic eventually turned to Akard offering A.A. $150 for a “head job.” Trial transcript at 67. A.A. agreed and proceeded to perform an act of oral sex on Akard. During the act, Akard grabbed A.A.'s head and forced her onto him to the point A.A. was choking and had “snot coming out of [her] nose.” Tr. at 72. Akard continued to force A.A .'s head back and forth until he lifted her up and told her that “today was the day [she] was gonna die.” Id.
A.A. repeatedly begged Akard to let her leave, but Akard ordered her to the bathroom and proceeded to cut A.A.'s t-shirt and bra in order to remove them. Akard then ordered A.A. to remove her pants and go into the bedroom. Despite A.A.'s repeated pleas to leave, Akard told her that she could not leave. Once in the bedroom, Akard said that he had “a toy” for A.A., reached under the bed, and then used a taser gun on A.A.'s back and heart area approximately five times. Tr. at 81. When A.A. began to scream, Akard reached under the bed for his handgun and held it to A.A.'s head.
A.A. then sat on the bed while Akard handcuffed her arms behind her back. Akard then forced A.A. to take some pills with Mountain Dew. During the process, A.A. spilled some of the Mountain Dew, causing Akard to become upset and hit A.A. in the head. Akard then ordered A.A. back to the bathroom where Akard undressed and they both entered the shower. While in the shower, Akard made A.A. kneel so that he could urinate in her mouth. A.A. spit out the urine, which upset Akard. Akard then hit A.A., knocking her unconscious.
When she awoke, she was laying face down on Akard's bed and now had zip ties restraining her ankles. As A.A. faded in and out of consciousness, Akard raped her vaginally and anally a total of four to five times. To prevent A.A. from screaming, Akard placed a golf ball in A.A.'s toothless mouth and then used a sock as a gag. While A.A. was bound, Akard used sex toys on both of them. At one point, A.A. woke up and noticed stockings on her legs that were not hers. During another instance of consciousness, A.A. realized that she had a metal, link chain tied around her and tied to the door, so that the chain would rattle every time she moved.
At another point when A.A. was only bound in handcuffs, Akard called out to A.A. from the living room, telling her to come to that room. Akard then showed A.A. “a lot” of pictures of child pornography on his laptop. Tr. at 99. During this display, Akard said that he had “done plenty” of children. Tr. at 100.
When A.A. finally woke the next day, she was in the bed and the chain was still around her. Pretending not to remember what happened, she commented to Akard, “we must have had some really kinky sex last night[.]” Tr. at 103. A.A. then indicated that she needed to leave immediately because she had to pick up her children. Akard responded, “Are we okay?” Id. A.A. indicated affirmatively. Akard then told A.A. that she had to take a shower before she left, which she did but purposely did not use soap.
Immediately after leaving Akard's apartment on the afternoon of September 9, 2006, A.A. ran to a neighboring house to obtain assistance. After A.A. told the neighbor that she was held against her will for nineteen hours and displayed her wounds, the neighbor called 9–1–1. After police responded and initially interviewed A.A., she was taken to the hospital where samples were collected for a rape kit analysis and pictures of A.A.'s wounds were taken.
The police obtained a search warrant for Akard's apartment based on A.A.'s statement and executed it early on the morning of September 10, 2006. When the officers breached the door, Akard was sitting on his couch, viewing pornography on his computer while masturbating. Items recovered from the apartment search included a set of keys on a key chain including a handcuff key, zip ties, a woman's Old Navy shirt that had been cut as well as a bra, a pair of handcuffs, a metal link chain, two golf balls and “fairly stretchable” socks, a stun gun, bottles of Tylenol, Tylenol PM, Doxycycline, Alprazolam and Hydrocodone, A.A.'s identification card and cell phone, a collection of sex toys, a BB gun, an air rifle, a handgun, purple and orange rope that was tied to the bed frame, blue stockings, and a laptop containing approximately 2900 pornographic pictures.
[Appellee–Respondent the State of Indiana (the “State”) ] initially filed charges against Akard on September 14, 2006, but later filed a nolle prosequi motion to dismiss the case without prejudice. The motion was granted. On October 1, 2008, the State re-filed charges against Akard of three counts of Rape, two as Class A felonies and one as a Class B felony, three counts of Criminal Deviate Conduct, two as Class A felonies and one as a Class B felony, two counts of Criminal Confinement, as Class B felonies, and two counts of Battery, as Class C felonies. After a three day trial, a jury found Akard guilty as charged. The trial court sentenced Akard to an aggregate sentence of ninety-three years. Akard v. State, 924 N.E.2d 202, 205–06 (Ind.Ct.App.2010), aff'd on reh'g, trans. granted, aff'd in part, vacated in part, 937 N.E.2d 811 (Ind.2010). On appeal, we affirmed Akard's convictions but revised his aggregate sentence to 118 years. Id. at 212. The Indiana Supreme Court granted transfer and affirmed Akard's convictions and modified Akard's sentence to ninety-four years. Akard, 937 N.E.2d at 814.
[4] On January 26, 2011, Akard filed a pro-se PCR petition. In this petition, Akard claimed that he was received ineffective assistance from his trial, appellate, and post-conviction counsel. Akard also claimed that newly-discovered evidence cast doubt on his convictions. On October 30, 2014, the post-conviction court issued an order denying Akard's petition. This appeal follows.
[5] Post-conviction procedures do not afford the petitioner with a super-appeal. Williams v. State, 706 N.E.2d 149, 153 (Ind.1999). Instead, they create a narrow remedy for subsequent collateral challenges to convictions, challenges which must be based on grounds enumerated in the post-conviction rules. Id. A petitioner who has been denied post-conviction relief appeals from a negative judgment and as a result, faces a rigorous standard of review on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind.2001) ; Colliar v. State, 715 N.E.2d 940, 942 (Ind.Ct.App.1999), trans. denied.
[6] Post-conviction proceedings are civil in nature. Stevens v.. State, 770 N.E.2d 739, 745 (Ind.2002). Therefore, in order to prevail, a petitioner must establish his claims by a preponderance of the evidence. Ind. Post–Conviction Rule 1(5) ; Stevens, 770 N .E.2d at 745. When appealing from the denial of a PCR petition, a petitioner must convince this court that the evidence, taken as a whole, “leads unmistakably to a conclusion opposite that reached by the post-conviction court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that its decision will be disturbed as contrary to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind.Ct.App.2004), trans. denied. The post-conviction court is the sole judge of the weight of the evidence and the credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). We therefore accept the...
