MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 26 2019, 8:51 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT, PRO SE ATTORNEYS FOR APPELLEE
Kevin L. Martin Jamie C. Woods
Christopher S. Riley
Thorne Grodnik, LLP
Mishawaka, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin Martin, September 26, 2019
Appellant-Plaintiff, Court of Appeals Case No.
19A-CT-1126
v. Appeal from the St. Joseph Circuit
Court
Arvil R. Howe, The Honorable John Broden,
Appellee-Defendant. Judge
Trial Court Cause No.
71C01-1803-CT-123
Pyle, Judge.
Statement of the Case
[1] Kevin Martin (“Martin”), pro se, appeals the trial court’s grant of summary
judgment in favor of attorney Arvil Howe (“Howe”) in Martin’s legal
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malpractice action. Because the issue of ineffective assistance of counsel was
decided unfavorably to Martin and affirmed on appeal, the trial court properly
granted summary judgment in favor of Howe.
[2] We affirm.
Facts
[3] The State charged Martin with murder in July 2006. Howe was Martin’s public
defender at trial. A jury convicted Martin as charged in February 2007, and the
trial court sentenced him to sixty-five (65) years. In the appeal of his conviction
and sentence, Martin argued that Howe was ineffective. This Court disagreed
with Martin and concluded that Howe was not ineffective. See Martin v. State,
No. 71A03-0707-CR-323 (Ind. Ct. App. Dec. 31, 2007), trans. denied.
[4] In June 2008, Howe filed a petition for post-conviction relief wherein he again
argued that Howe was ineffective. In its order denying Martin’s petition in
December 2017, the post-conviction court explained as follows:
The issue of ineffectiveness of trial counsel was raised on direct
appeal and therefore the Court of Appeals’ finding that trial
counsel was not ineffective is res judicata as to this issue and he
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may not re-litigate it in a PCR proceeding.[1] See Timberlake v.
State, 753 N.E.2d 591, 602 (Ind. 2001).[2]
(Appellee’s App. Vol. 2 at 14-15). Martin appealed the denial of his post-
conviction petition, and this Court dismissed the appeal with prejudice in May
2018.
[5] In January 2018, during the pendency of his post-conviction appeal, Martin
filed a legal malpractice complaint against Howe. Howe filed a summary
judgment motion, which the trial court granted. In its order granting Howe’s
motion, the trial court concluded that because the post-conviction court had
previously determined that Howe was not ineffective, the doctrine of claim
preclusion barred subsequent litigation of the issue, including Martin’s claims
against Howe in the legal malpractice action. Martin now appeals the trial
court’s grant of Howe’s summary judgment motion.
Decision
[6] At the outset, we note that Martin proceeds pro se. A litigant who proceeds pro
se is held to the same rules of procedure that trained counsel is bound to follow.
Smith v. Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert.
1
[1] The post-conviction court alternatively concluded that Howe was not ineffective. Specifically, the post-
conviction court explained that Martin had not met his burden of proof to show that Howe was ineffective.
According to the post-conviction court, Martin’s questioning of Howe at the post-conviction hearing had developed
no facts supporting Martin’s allegations and Martin had offered no other evidence supporting his claim.
2
In Timberlake, the Indiana Supreme Court explained that where Timberlake raised an ineffective assistance of
counsel claim on direct appeal, and the Indiana Supreme Court considered and rejected it, res judicata barred
Timberlake from relitigating the issue in post-conviction proceedings. Timberlake, 753 N.E.2d at 602.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-1126 | September 26, 2019 Page 3 of 5
dismissed. One risk a litigant takes when he proceeds pro se is that he will not
know how to accomplish all the things an attorney would know how to
accomplish. Id. When a party elects to represent himself, there is no reason for
us to indulge in any benevolent presumption on his behalf or to waive any rule
for the orderly and proper conduct of his appeal. Foley v. Mannor, 844 N.E.2d
494, 502 (Ind. Ct. App. 2006). We will not become an advocate for the party or
address arguments that are too poorly developed or expressed to be understood.
Basic v. Amouri, 58 N.E.3d 980, 984 (Ind. Ct. App. 2016). We now turn to the
merits of Martin’s appeal.
[7] Martin argues that the trial court erred in granting Howe’s summary judgment
motion. We review an order for summary judgment de novo, which is the
same standard of review applied by the trial court. Ind. Restorative Dentistry, P.C.
v. Laven Ins. Agency, Inc., 27 N.E.3d 260, 264 (Ind. 2015). The moving party
must “affirmatively negate an opponent’s claim” by demonstrating that the
designated evidence raises no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. Id. The burden then shifts to
the nonmoving party to demonstrate a genuine issue of material fact. Id.
[8] In deciding whether summary judgment is proper, we consider only the
evidence the parties specifically designated to the trial court. Ind. Trial Rule
56(C), (H). We construe all factual inferences in favor of the nonmoving party
and resolve all doubts regarding the existence of a material issue against the
moving party. Carson v. Palombo, 18 N.E.3d 1036, 1041 (Ind. 2014). Where
material facts are not in dispute, the issue is the application of the law to the
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facts. Belford v. McHale Cook & Welch, 648 N.E.2d 1241, 1244 (Ind. Ct. App.
1995), trans. denied.
[9] In Belford, this Court explained that, as a matter of law, where “[t]he issue of
ineffective assistance of counsel was decided unfavorably to [Belford] and
affirmed” on appeal, the trial court properly granted summary judgment in
favor of the attorney in Belford’s legal malpractice claim. Id. This is because a
finding that counsel was not ineffective provides the necessary identity of issues
to preclude a malpractice action stemming from the same proceedings. Id. at
1245 (citing Hockett v. Breunig, 526 N.E.2d 995, 999-1003 (Ind. Ct. App. 1988))
(Shields, J., concurring).
[10] Here, as in Belford, the issue of ineffective assistance of counsel was decided
unfavorably to Martin and affirmed on appeal. Accordingly, here, as in Belford,
the trial court properly granted summary judgment in favor of Howe on
Martin’s legal malpractice claim. See also Williams v. Maschmeyer, 870 N.E.2d
1069, 1071 (Ind. Ct. App. 2007) (holding that where “the question whether
[Williams’] trial counsel provided ineffective assistance [of counsel] was
litigated in Williams’ post-conviction petition[,]” it may not be relitigated in a
legal malpractice case).
[11] Affirmed.
Robb, J. and Mathias, J., concur.
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